COA Going A Little Too Far With Appellate Rules Violations
There have been a spate of recent decisions where the COA has dismissed appeals on the basis of technical rules violations or disputable rules violations. In some of these cases the COA has interpreted or applied the rules of appellate procedure as stringently as possible, imposing requirements that aren't necessarily mandated by the text of the rules. This week saw another example of this phenomenon in the COA.
Over a decade ago the N.C. Supreme Court unanimously held that if the Record on Appeal (ROA) omits the certificate of service that was attached to the notice of appeal, that is not grounds for dismissal of the appeal, at least so long as the appellee does not object. Hale v. Afro-Amerian Arts Int'l, Inc., 335 N.C. 231, 436 S.E.2d 588 (1993) (per curiam) (reversing dismissal of appeal and adopting dissenting opinion of Judge Wynn in the underlying decision). The Supreme Court in Hale reversed the COA and expressly rejected the COA's conclusion that there's a jurisdictional defect when the certificate of service for a notice of appeal is omitted from the ROA.
Yet two days ago a panel of the Court of Appeals, in an unpublished decision in Ribble v. Ribble, dismissed an appeal ex mero motu simply because the ROA did not contain the certificate of service for the notice of appeal. The panel relied on the same "jurisdictional defect" rationale rejected by the Supreme Court in Hale. The panel did not cite Hale.
To make matters worse, the panel dismissed the appeal even though the ROA contained the notice of appeal and a document signed by the appellant stating that all pleadings in the ROA were timely served and that the therefore the appellant deemed it unnecessary to include certificates in the ROA.
The Ribble panel relied on Appellate Rule 3 (which is jurisdictional) and concluded that the omission of the certificate from the ROA was a Rule 3 violation. But that is incorrect. Rule 3 has nothing to do with the ROA. Rule 3 requires (only) that a notice of appeal be timely filed and served. In Ribble there was no question that the notice was timely filed: the filed-stamped notice was reproduced in the ROA. Nor was there a dispute that the notice was timely served: the ROA contained the appellant's signed document stating that all pleadings in the ROA (including the notice of appeal) were timely served. Thus, there was no Rule 3 violation.
The Ribble panel also cited Appellate Rule 26. But Rule 26 simply requires that papers filed with a court be served and that proof of service (a certificate of service) be affixed to the paper. It has nothing to do with the ROA. In any event, the panel does not suggest that Rule 26 is jurisdictional. The COA has already held, on the basis of Hale, that Rule 26 is not jurisdictional. Henlajon, Inc. v. Branch Highways, Inc., 560 S.E.2d 598 (N.C.App. 2002).
The panel also cited a COA case from last year, Krantz v. Owens (N.C.App. 2005). But Krantz is distinguishable for at least two reasons. First, in Krantz the panel cited the omission of the certificate of service as one of numerous rules violations warranting dismissal. The other rules violations independently supported dismissal. Krantz doesn't stand for the proposition that the omission of a certificate of service for the notice of appeal independently warrants dismissal. Second, and critically, the ROA in Krantz did not contain a signed document (which Ribble did) stating that all documents in the ROA were timely served.
In any event, insofar as Krantz can be read to say that the omission of the certificate is a Rule 3 violation, Krantz is wrong: it is impossible to square with the Supreme Court's decision in Hale; and it misreads Rule 3 which, as noted, has nothing to do with the ROA. Indeed, the three cases that Krantz cited as authority are easily distinguishable: two were cases in which the ROA omitted the notice of appeal itself, in violation of Appellate Rule 9, which specifically requires that the notice appear in the ROA; and one case had nothing to do with the ROA but instead involved an untimely notice of appeal.
Unfortunately, this is not the first time the COA has failed to follow Hale. In 1997, four years after Hale, the COA dismissed an appeal for failure to include a certificate of service in the ROA. The SCT summarily reversed on the basis of Hale. See Edwards v. West, 492 S.E.2d 356 (N.C. 1997). The following year, the SCT again had to reverse the COA, ordering, pursuant to Hale and Edwards, that "the Court of Appeals is directed to hear and determine plaintiff's appeal." Hill v. Town of Cape Carteret, 500 S.E.2d 96 (N.C. 1998). Which leads one to wonder: What does the COA have against Hale?
Over a decade ago the N.C. Supreme Court unanimously held that if the Record on Appeal (ROA) omits the certificate of service that was attached to the notice of appeal, that is not grounds for dismissal of the appeal, at least so long as the appellee does not object. Hale v. Afro-Amerian Arts Int'l, Inc., 335 N.C. 231, 436 S.E.2d 588 (1993) (per curiam) (reversing dismissal of appeal and adopting dissenting opinion of Judge Wynn in the underlying decision). The Supreme Court in Hale reversed the COA and expressly rejected the COA's conclusion that there's a jurisdictional defect when the certificate of service for a notice of appeal is omitted from the ROA.
Yet two days ago a panel of the Court of Appeals, in an unpublished decision in Ribble v. Ribble, dismissed an appeal ex mero motu simply because the ROA did not contain the certificate of service for the notice of appeal. The panel relied on the same "jurisdictional defect" rationale rejected by the Supreme Court in Hale. The panel did not cite Hale.
To make matters worse, the panel dismissed the appeal even though the ROA contained the notice of appeal and a document signed by the appellant stating that all pleadings in the ROA were timely served and that the therefore the appellant deemed it unnecessary to include certificates in the ROA.
The Ribble panel relied on Appellate Rule 3 (which is jurisdictional) and concluded that the omission of the certificate from the ROA was a Rule 3 violation. But that is incorrect. Rule 3 has nothing to do with the ROA. Rule 3 requires (only) that a notice of appeal be timely filed and served. In Ribble there was no question that the notice was timely filed: the filed-stamped notice was reproduced in the ROA. Nor was there a dispute that the notice was timely served: the ROA contained the appellant's signed document stating that all pleadings in the ROA (including the notice of appeal) were timely served. Thus, there was no Rule 3 violation.
The Ribble panel also cited Appellate Rule 26. But Rule 26 simply requires that papers filed with a court be served and that proof of service (a certificate of service) be affixed to the paper. It has nothing to do with the ROA. In any event, the panel does not suggest that Rule 26 is jurisdictional. The COA has already held, on the basis of Hale, that Rule 26 is not jurisdictional. Henlajon, Inc. v. Branch Highways, Inc., 560 S.E.2d 598 (N.C.App. 2002).
The panel also cited a COA case from last year, Krantz v. Owens (N.C.App. 2005). But Krantz is distinguishable for at least two reasons. First, in Krantz the panel cited the omission of the certificate of service as one of numerous rules violations warranting dismissal. The other rules violations independently supported dismissal. Krantz doesn't stand for the proposition that the omission of a certificate of service for the notice of appeal independently warrants dismissal. Second, and critically, the ROA in Krantz did not contain a signed document (which Ribble did) stating that all documents in the ROA were timely served.
In any event, insofar as Krantz can be read to say that the omission of the certificate is a Rule 3 violation, Krantz is wrong: it is impossible to square with the Supreme Court's decision in Hale; and it misreads Rule 3 which, as noted, has nothing to do with the ROA. Indeed, the three cases that Krantz cited as authority are easily distinguishable: two were cases in which the ROA omitted the notice of appeal itself, in violation of Appellate Rule 9, which specifically requires that the notice appear in the ROA; and one case had nothing to do with the ROA but instead involved an untimely notice of appeal.
Unfortunately, this is not the first time the COA has failed to follow Hale. In 1997, four years after Hale, the COA dismissed an appeal for failure to include a certificate of service in the ROA. The SCT summarily reversed on the basis of Hale. See Edwards v. West, 492 S.E.2d 356 (N.C. 1997). The following year, the SCT again had to reverse the COA, ordering, pursuant to Hale and Edwards, that "the Court of Appeals is directed to hear and determine plaintiff's appeal." Hill v. Town of Cape Carteret, 500 S.E.2d 96 (N.C. 1998). Which leads one to wonder: What does the COA have against Hale?
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