Tuesday, December 19, 2006, 11:56 PM

Another Rule 10 Dismissal By COA

Today the COA, over Judge Hunter's dissent, dismissed yet another appeal for faulty assignments of error. The case is Bennett v. Bennett.

Here were the assignments in question:

* The trial court erred in its Finding of Fact #8a that Plaintiff's expert, Frank Plunkett, was qualified to appraise the property.
* The trial court erred in its Finding of Fact #8a that the value of the 8.90 acre tract was $52,000.
*The trial court erred in its Finding of Fact #8b that the value o f the 25.63 acre tract was $72,000.
*The trial court erred in its Finding of Fact #8d that the value of the Bennett Farms partnership is -0-.
* The trial court erred in its Finding of Fact #10b in classifying the debts of the Bennett Farms partnership as marital debt.
* The trial court erred in its Finding of Fact #10d in classifying the debts of the Bennett Farms partnership as marital debt.
* The trial court erred in its Finding of Fact #11d in classifying the debts of the Bennett Farms partnership as marital debt.

The COA majority held that these were deficient under Appellate Rule 10 because they failed to state the legal bases for the errors. And the majority held that dismissal was required under Viar. The COA also dismissed on the basis of another rule violation: appellant's failure to include the standard of review in his brief, as required by Appellate Rule 28.

Judge Hunter dissented because he concluded that the legal bases easily could be inferred. He explained that the assignments provided sufficient information to indicate that the legal bases for the appeal included a challenge to the acceptance of an expert witness, to the sufficiency of evidence to support certain valuation findings, and to legal classification of property. Because he could infer the legal bases, he concluded that this was not a case like Viar, where the Supreme Court admonished that the COA cannot create an appeal for an appellant by suspending the Rules of Appellate Procedure.

Judge Hunter concluded that the appellee wasn't disadvantaged and the Court wasn't burdened by the violations. He voted to sanction appellant's counsel rather than the harsh remedy of dismissing his client's appeal.

This dissent is of a piece with earlier opinions by Judge Hunter on rule violations (which are consistent with the views of Judge Geer, among others). Next month the NC SCT will hear argument in one such rule violation case arising from a Hunter dissent: Walsh v. Town of Wrightsville Beach. Hopefully the SCT will take the opportunity to clarify the confusion wrought by Viar.

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