Saturday, December 23, 2006, 2:50 PM

More On Jones v. Harrelson & Smith Contractors, LLC

More on Jones v. Harrelson & Smith Contrs., LLC:

In Jones v. Harrelson & Smith Contrs., LLC, the same majority as that in Stann v, Levine dismissed another appeal due to appellate rule violations. The violations resulting in the dismissal: 1) the appellant, in her assignments of error from motions for a directed verdict and a judgment notwithstanding the verdict did not sufficiently state the legal basis of the exception (the court did not explain what would have been sufficient to prevent dismissal); and 2) the record cites in appellants' assignments of error were insufficient. The panel cited its language from Stann, underscoring that even inconsequential errors are grounds for dismissal.

Again, Judge Geer dissented. Re. the assignments of error, Judge Geer pointed out that legal grounds are not required for assignments of error from summary judgment because the only legal basis for an exception to, say, the grant of summary judgment, is that there was a dispute of material fact and that the movant was not entitled to judgment as a matter of law. Here, the only possible legal basis for appellant's assigned error is that the evidence was sufficient to support her claims. Judge Geer posited that requiring appellant to state the same in her assignments here would constitute requiring the same "superfluous formality" that is held to be unnecessary for exceptions to summary judgments.

The record cite errors were typos to a record page 3 pages away from the clearly intended page, and cites to transcript pages at which the court orally ruled. Judge Geer would hold these do not provide a basis for dismissal.

Here, as in Stann, Judge Geer analyzed the merits and found grounds for reversal of the trial court.

Will Jones be an ersatz Stann and make it to the NC SC for review of Viar's scope and application?

0 Comments:

Post a Comment

Links to this post:

Create a Link

<< Home

back to top