Tuesday, March 06, 2007, 11:30 AM

Missing Certificate Of Service Sends Another Appeal Sailing

In In re C.T. and B.T., filed today, the COA offered up a Ribble redux, dismissing another appeal because the certificate of service for the notice of appeal was not included in the record on appeal.

Sean posted several months back on Ribble v. Ribble, ___ N.C. App. ___, ___, 637 S.E.2d 239, 240 (2006).

In In re C.T. and B.T., as in Ribble, the notice of appeal was included in the record, but the certificate of service for the notice was not. Citing Ribble and Viar, the COA dismissed the appeal due to the appellant's failure to include in the record the certificate of service for the notice.

In In re C.T. and B.T. as in Ribble, the Court indicated that in the wake of Viar, the failure to include a certificate of service is no inconsequential appellate rules violation. The Court rejected precedent indicating otherwise, including Hale v. Afro-American Arts Int'l, 110 N.C. App. 621, 430 S.E.2d 457 (Wynn, J., dissenting), rev'd per curiam for the reasons stated in the dissent, 335 N.C. 231, 436 S.E.2d 588 (1993). And the appellate rules the Court indicated had been violated were Rules 3 and 26, neither of which speaks (at least directly) to the contents of the record on appeal.

Judge Wynn, the author of the Hale dissent, dissented in In re C.T. and B.T., too, citing to the reasoning in his Hale dissent (i.e., that service of the notice of appeal is analogous to service of process and may be waived, and failure to include the proof of service in the record may be inconsequential). Judge Wynn also stated that Viar did not, and Ribble could not, overrule Hale.

0 Comments:

Post a Comment

Links to this post:

Create a Link

<< Home

back to top