Tuesday, December 05, 2006, 9:56 PM

Crazy Quilt of Rules Decisions

Today the COA decided not to dismiss an appeal even though the appellant committed multiple rule violations of the type the COA has, in other recent cases, held or indicated require dismissal. The case is Seay v. Wal-Mart Stores, Inc.

The Court said the appellant violated these rules:

1. Rule 10(c), by failing to reference the record after the sole assignment of error.

2. Rule 28(b)(6), by failing to reference the assignment of error in the brief.

3. Rule 28(b)(2), by omitting a statement of questions presented for review.

4. Rule 28(b)(3), by omitting a statement of the procedural history of case.

5. Rule 28(b)(4), by omitting a statement of the grounds for appellate review.

Despite these violations, which the COA deemed "serious," the COA did not dismiss. In a unanimous decision by Chief Judge Martin, the COA reached the merits. Here is the key passage from the opinion (with citations omitted): "Plaintiff's rule violations, while serious, are not so egregious as to warrant dismissal of the appeal. Reaching the merits of this case does not create an appeal for an appellant or cause this court to examine issues not raised by the appellant. Defendants were given sufficient notice of the issue on appeal as evidenced by the filing of their brief thoroughly responding to plaintiff's allegations. As a result, we elect to review the merits of plaintiff's appeal pursuant to N.C. R. App. P. 2." (Rule 2 is the rule permitting the court to suspend the rules.)

This ruling perpetuates the division in the COA regarding the scope of the SCT's decision in Viar v. NC Dep't of Transp. (2005), which has led many judges on the COA to impose a near-automatic dismissal rule for rule violations (and to interpret the appellate rules more stringently, finding violations in circumstances where reasonable minds could differ). Today's opinion recognizes that not all rule violations are equally problematic and that the touchstone of the analysis should be whether the appellee was prejudiced in the sense of having inadequate notice of the issues on appeal.

Today's decision is, in my judgment, impossible to square with the split decision last month in Stann v. Levine (see Sarah's Nov. 7 post below on Stann). That case involved some of the same rule violations present in today's case, yet the panel there dismissed the appeal, rejecting a "substantial compliance" standard and renouncing a prejudice test. Today's decision is also impossible to square with another decision last month, Ribble v. Ribble. Ribble involved a very inconsequential rule violation (failure to include a certificate of service in the record on appeal), yet the panel in that case held that no matter how inconsequential the violation, dismissal is required under Viar and its progeny.

For that matter, today's decision is difficult to square with a number of post-Viar decisions dismissing appeals for rule violations. This is because different judges have applied different doctrinal approaches in evaluating the consequences of rule violations. As the majority stated in Stann last month, "Various panels of this Court have taken inconsistent approaches with respect to the application of Rule 2 ... and created confusion over the implications of the Supreme Court's opinion in Viar ...." Today's decision is unlikely to cure the confusion. Only the SCT can do that. In the meantime, would anyone be surprised if later this month a different panel were to dismiss an appeal for the very same rule violations that today were not deemed worthy of dismissal?

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