Tuesday, February 06, 2007, 9:55 PM

Further Evidence Of Softening On Rules Violations At COA?

In State v. Bradley, a published opinion filed today, the NC COA noted that a (criminal) defendant's brief violated Rule 28(b)(6): The defendant failed to identify his assignments of errors "by the pages at which they appear in the printed record on appeal." The COA "[n]evertheless[] ... conclude[d] that defendant's violation [was] not so egregious as to warrant dismissal or sanctions." And in the unpublished Dept. of Transportation v Prince from a different panel, appellants were allowed to amend their one inadequate assignment of error (it failed to state a legal basis) and thereby save their appeal. The court, in allowing the amendment, noted that the appellee would not be prejudiced. In contrast, in the unpublished In The Matter of: K.D.R., an appeal was dismissed for several and "significant" violations. Most notably, the appellant failed to cite authority in her argument, and the COA held that violation would require the COA to construct the appellant's appeal, for which the COA was expressly admonished in Viar. Do these and other recent cases (especially Seay v. Wal-Mart Stores, Inc. (Dec. '06) and Caldwell v. Branch (Jan. '07)) evidence a softening trend toward appellate rules violations and a movement toward dismissal only in the event of multiple, significant, or prejudicial violations?


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