COA To Appellate Counsel: Get Out Your Prayer Books
In Stann v. Levine, filed today, a majority panel of the COA deemed that improper line spacing, among other things, constitutes a "substantial" violation of the Appellate Rules and therefore dismissed the appellant's appeal.
In Stann, the plaintiff's action was dismissed for lack of personal jurisdiction over the defendant, and plaintiff appealed. The COA dismissed that appeal for "substantial" violations of the Appellate Rules. The very first example that the Stann majority gives of such a substantial violation: the "line spacing" in the plaintiff-appellant's brief. The line spacing in the 18-page brief was 1 1/3, not double. Another substantial violation: The statement of facts contained only "sporadic" record cites and no cites in the last two paragraphs. A quick count indicated about 44 record cites in the statement of facts, which begs the question: What is sufficient to not be considered sporadic and warranting dismissal?
A third substantial error: Plaintiff's one assignment of error did not appear "at the conclusion of the record on appeal," but is instead located at page 111 of the 117-page record (a fact pointed out by Judge Geer's dissent, addressed in more detail below). What is the conclusion? Is it the very last page of the record? If so, wouldn't that then violate Appendix C to the Rules of Appellate Procedure, which indicates that the identification of counsel page should be the concluding page, and thus potentially expose folks to dismissal? What is appellate counsel to do?
The Stann majority also indicates that the lone assignment of error was "broad, vague, and unspecific." Yet, the assignment assigns error to the trial court's "dismissing the action of the plaintiff for lack of jurisdiction." As Judge Geer's dissent points out, Rule 10 itself requires that error be assigned "without argumentation." Did the majority want an argument about why the trial court had jurisdiction? Or should plaintiff have duplicitously assigned error to the trial court's "dismissing the action of the plaintiff for lack of jurisdiction because the court had jurisdiction"?
The Stann majority also notes as grounds for dismissal the absence of statements re. grounds for appellate review and standard(s) of review, undeniable rules violations.
In the end, the Stann majority holds that "the nature and number of rules violations" warrant dismissal and notes that to err once is human yet to forgive is "divine." Appellate counsel across this State had better be saying their prayers.
Judge Geer contributes a lengthy dissent, commencing with her observation that "this Court increasingly elevates form over substance in its attempt to apply our Supreme Court's decision in Viar v. N.C. Dep't of Transp." Judge Geer goes on to note that "Many, if not most, appeals involve some violation of the appellate rules, such as arranging the record on appeal in the wrong order, using the wrong font size in footnotes.... A line must be drawn between those violations that warrant dismissal and those that do not." Judge Geer proposes that "only those appeals that substantively affect the ability of the appellee to respond and this Court to address the appeal."
Judge Geer recognizes the unintended negative effects that a bright-line dismissal regime could have, including on legal malpractice exposure (imagine a legal malpractice claim based on footnote font size) and on the collegiality of the appellate bar in this State if zealous advocacy necessarily included a motion to dismiss for rules violations.
Another of Judge Geer's points: The appellee brief in Stann was also ridden with procedural errors (no statement of standard(s) of review, incorrect page numbering, improper form for record citations, improper font, to name a few), and yet the appellee violated with impunity while appellant received the ultimate sanction.
Judge Geer would sanction both parties under Appellate Rules 25 and 34 for their rules violations and not dismiss. Her invoking Rule 25 begs the question: Why does 25(b) allow, for example, sanctions such as monetary penalties where a party or attorney substantially fails to comply with the Appellate Rules if even "substantial compliance," which the Stann majority indicates is passe, rather than undeniable compliance essentially mandates dismissal?
Judge Geer then engages in an analysis of the merits of the case and finds that the trial court should be reversed. In concluding, Judge Geer states:
"I would not side-step resolution of those questions solely because the appellant's counsel - like the appellee's counsel - has been somewhat casual in compliance with the Appellate Rules. Our job is to correct errors by the trial court. We are not doing that job when we dismiss appeals for non-substantive rules violations."
In Stann, the plaintiff's action was dismissed for lack of personal jurisdiction over the defendant, and plaintiff appealed. The COA dismissed that appeal for "substantial" violations of the Appellate Rules. The very first example that the Stann majority gives of such a substantial violation: the "line spacing" in the plaintiff-appellant's brief. The line spacing in the 18-page brief was 1 1/3, not double. Another substantial violation: The statement of facts contained only "sporadic" record cites and no cites in the last two paragraphs. A quick count indicated about 44 record cites in the statement of facts, which begs the question: What is sufficient to not be considered sporadic and warranting dismissal?
A third substantial error: Plaintiff's one assignment of error did not appear "at the conclusion of the record on appeal," but is instead located at page 111 of the 117-page record (a fact pointed out by Judge Geer's dissent, addressed in more detail below). What is the conclusion? Is it the very last page of the record? If so, wouldn't that then violate Appendix C to the Rules of Appellate Procedure, which indicates that the identification of counsel page should be the concluding page, and thus potentially expose folks to dismissal? What is appellate counsel to do?
The Stann majority also indicates that the lone assignment of error was "broad, vague, and unspecific." Yet, the assignment assigns error to the trial court's "dismissing the action of the plaintiff for lack of jurisdiction." As Judge Geer's dissent points out, Rule 10 itself requires that error be assigned "without argumentation." Did the majority want an argument about why the trial court had jurisdiction? Or should plaintiff have duplicitously assigned error to the trial court's "dismissing the action of the plaintiff for lack of jurisdiction because the court had jurisdiction"?
The Stann majority also notes as grounds for dismissal the absence of statements re. grounds for appellate review and standard(s) of review, undeniable rules violations.
In the end, the Stann majority holds that "the nature and number of rules violations" warrant dismissal and notes that to err once is human yet to forgive is "divine." Appellate counsel across this State had better be saying their prayers.
Judge Geer contributes a lengthy dissent, commencing with her observation that "this Court increasingly elevates form over substance in its attempt to apply our Supreme Court's decision in Viar v. N.C. Dep't of Transp." Judge Geer goes on to note that "Many, if not most, appeals involve some violation of the appellate rules, such as arranging the record on appeal in the wrong order, using the wrong font size in footnotes.... A line must be drawn between those violations that warrant dismissal and those that do not." Judge Geer proposes that "only those appeals that substantively affect the ability of the appellee to respond and this Court to address the appeal."
Judge Geer recognizes the unintended negative effects that a bright-line dismissal regime could have, including on legal malpractice exposure (imagine a legal malpractice claim based on footnote font size) and on the collegiality of the appellate bar in this State if zealous advocacy necessarily included a motion to dismiss for rules violations.
Another of Judge Geer's points: The appellee brief in Stann was also ridden with procedural errors (no statement of standard(s) of review, incorrect page numbering, improper form for record citations, improper font, to name a few), and yet the appellee violated with impunity while appellant received the ultimate sanction.
Judge Geer would sanction both parties under Appellate Rules 25 and 34 for their rules violations and not dismiss. Her invoking Rule 25 begs the question: Why does 25(b) allow, for example, sanctions such as monetary penalties where a party or attorney substantially fails to comply with the Appellate Rules if even "substantial compliance," which the Stann majority indicates is passe, rather than undeniable compliance essentially mandates dismissal?
Judge Geer then engages in an analysis of the merits of the case and finds that the trial court should be reversed. In concluding, Judge Geer states:
"I would not side-step resolution of those questions solely because the appellant's counsel - like the appellee's counsel - has been somewhat casual in compliance with the Appellate Rules. Our job is to correct errors by the trial court. We are not doing that job when we dismiss appeals for non-substantive rules violations."
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