Thirty years ago, Justice Scalia famously described the Supreme Court’s Lemon test as “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993). This Halloween, an equally scary wraith may be stalking North Carolina’s appellate jurisprudence.
Recently, an apparition, reminiscent of Viar v. North Carolina Department of Transportation, 359 N.C. 400, 610 S.E.2d 360 (2005), has reared its head. Viar’s reign of terror began 18 years ago. But 15 years ago, the Supreme Court’s heroic decision in Dogwood Development & Management Co. v. White Oak Transportation Co., 362 N.C. 191, 657 S.E.2d 361 (2008), dealt Viar a fatal blow. Or so we thought. A recent slate of appellate dismissals has some believing that the spirit of Viar may be on the rise once more.
The Supreme Court long ago stated that the appellate rules are “mandatory and not directory.” Pruitt v. Wood, 199 N.C. 788, 789, 156 S.E. 126, 127 (1930). But at the same time, the Supreme Court has directed that the rules are “not to be enforced harshly or oppressively, but rather in a spirit of liberality, to the end that justice may be administered in all cases.” Battle v. Mercer, 188 N.C. 116, 123 S.E. 258, 258 (1924). Under pre-Viar caselaw, then, noncompliance with a technical component of the appellate rules rarely resulted in dismissal.
That changed suddenly, however, in April 2005 when Viar was announced. In a per curiam decision, the Supreme Court held that noncompliance with the appellate rules “will subject an appeal to dismissal,” and dismissed an appeal for violating Rule 10 and Rule 28(b)’s assignment of error requirements. 359 N.C. at 401-02, 610 S.E.2d at 360-61.
After the Supreme Court decided Viar, the Court of Appeals unleashed a swarm of dismissals. Forget to include a required section in your appellate brief? Dismissed! Double space a brief and make your margins too narrow? Dismissed! After all, the Supreme Court had said in Viar that the rules were mandatory.
Viar’s reign of technical terror lasted almost three years. But then the Supreme Court appeared to lay the specter to rest in Dogwood. While reemphasizing the importance of the appellate rules, the Supreme Court established that “noncompliance with the appellate rules does not, ipso facto, mandate dismissal of an appeal.” Dogwood,362 N.C. at 194, 657 S.E.2d at 363. Instead, when rule violations do “not rise to the level of a ‘substantial failure’ or ‘gross violation,’” then appellate courts “should simply perform [their] core function of reviewing the merits of the appeal to the extent possible.” Id. at 199, 657 S.E.2d at 366. And even when rules violations are substantial or gross, the Supreme Court instructed that courts should perform a balancing test to determine whether sanctions short of dismissal would accomplish the same purpose.
Following the triumphant entry of Dogwood, dismissals for technical violations plummeted, and appellate practitioners breathed freely once more.
As the years passed, however, it became easy to forget why Viar managed to take root in the first place. Practitioners grew comfortable with our appellate courts’ willingness to forgive technical defects under Dogwood.
But even Dogwood has its kryptonite: “jurisdictional” defects still require dismissal. And like any good monster from a black-and-white horror film, the door was open for Viar’s return—much to the terror and consternation of the appellate bar.
Two months ago, just in time for fall, the Court of Appeals sua sponte dismissed an appeal because the notice of appeal in the record failed to include a visible file stamp. Colonial Plaza Phase Two, LLC v. Cherry’s Elec. Tax Servs., LLC, 890 S.E.2d 927, 2023 WL 5689339 (N.C. Ct. App. 2023) (unpublished). The Supreme Court had previously held that missing file stamps are not fatal defects when the record includes a statement, agreed to by both parties, stating when the notice of appeal was filed. See Blevins v. Town of W. Jefferson, 361 N.C. 578, 579, 653 S.E.2d 392, 392, reversing for reasons stated in the dissenting opinion, 182 N.C. App. 675, 643 S.E.2d 465 (2007). And the record in Colonial Plaza contained such a statement. Blevins was brought to the Court of Appeals’ attention in an unopposed motion to reconsider and amend, but the Court of Appeals declined to reconsider its decision. A petition for writ of certiorari requesting reinstatement of the appeal is pending at the Supreme Court.
Then, a month later, in City of Gastonia v. McDaniel, 892 S.E.2d 270, 2023 WL 6436095 (N.C. Ct. App. 2023) (unpublished), the Court of Appeals tossed another case. This time, the appellate record lacked a visible file stamp on the order being appealed. Again, other evidence in the record demonstrated that (1) the order had been filed and (2) that the appeal was timely. But the Court of Appeals sua sponte decided that this was a jurisdictional error requiring dismissal. A motion for reconsideration of that decision is pending.
Another two weeks after that, the Court of Appeals dismissed another appeal. Foxx v. Ramsey, 2003 WL 6842917 (N.C. Ct. App. Oct. 17, 2023) (unpublished). This time, the record lacked a copy of the trial court’s order on the defendant’s motion to dismiss. The Court of Appeals found that this absence deprived it of jurisdiction, and so dismissed the portion of the appeal involving the motion to dismiss.
What is notable in all these instances is that no party to the appeal brought these potential defects in the appellate record to the Court of Appeals’ attention. Instead, the Court of Appeals identified the rule violations on its own to dismiss the appeals.
One could ask whether sua sponte orders are the best way to address a suspected rules violation. When two sides present opposing arguments, the adversarial process may illuminate errors in both positions and hopefully aid in uncovering the truth. When a court dismisses an appeal on its own, there is no opportunity for parties to provide more context or explanation concerning a potential violation. Parties must instead wait until after an opinion is released and only then bring a potential analytical error or factual oversight to the Court of Appeals’ attention.
During the Viar era, one of the most often repeated quotes was, “It is not the role of the appellate courts . . . to create an appeal for an appellant.” 359 N.C. at 402, 610 S.E.2d at 361. But does that mean that it is the role of the appellate courts to presume jurisdictional violations exist? In the examples above, counsel agreed in the records that the appeals were timely. And in all but one, opposing counsel did not oppose the motion to reconsider/amend. Likely, no opposition occurred because opposing counsel recognized that the appeals could be reviewed on their merits—they had agreed that the appeals were timely filed.
On the other hand, the Court of Appeals has reasons for wanting more information or proof on when a document was filed. Although Appellate Rule 1 provides that the appellate rules are not jurisdictional, the time for noticing an appeal is effectively jurisdictional. The Supreme Court has instructed the Court of Appeals to dismiss appeals when a notice of appeal was not timely filed. The Court of Appeals may have taken that instruction as one to dismiss appeals.
Are there alternative processes for dealing with serious or potentially fatal rules violations? For example, numerous appellate courts have form “deficiency notices” that allow a court to check a box to identify common rules violations. These automated orders put counsel on notice that unless a particular defect is corrected or addressed within a particular period, the appeal could be dismissed. Could such a process work in North Carolina?
Until things change, lawyers should remain vigilant. The recent rash of dismissal fit the spooky tone of this season. Given the haunting specter of Viar’s return, counsel should closely review appellate records for any potential rule violations. Bringing in an appellate specialist to help avoid unintended errors may also be advisable!
In the meantime, stay safe out there, friends. Viar may be haunting our appellate forest.
Beth Brooks Scherer & Nathan Wilson
* Disclaimer: the authors of this blog have advised many attorneys on rules compliance over the years, including in some of the cases discussed above.