Tuesday, April 17, 2007, 7:04 PM

More Dismissals For Rule Violations

In two cases today, the Court of Appeals dismissed appeals because in each case the Record on Appeal (ROA) omitted certificate of service for the notice of appeal. The cases are Blevins v. Town of West Jefferson -- in which Judge Geer filed a dissent over the dismissal of the Town's appeal -- and In re A.C. Last month another decision in this line registered a dissent by Judge Wynn. See In re C.T. These cases all follow a decision issued five months ago: Ribble v. Ribble.

These decisions are in tension with Hale v. Afro-Amerian Arts Int'l, Inc., 335 N.C. 231, 436 S.E.2d 588 (1993) (per curiam). In Hale the N.C. Supreme Court unanimously held that if the ROA omits the certificate of service that was attached to the notice of appeal, that is not grounds for dismissal of the appeal, at least so long as the appellee does not object. The Supreme Court in Hale reversed the Court of Appeals and expressly rejected the conclusion that there's a jurisdictional defect when the certificate of service for a notice of appeal is omitted from the ROA. (In 1997, four years after Hale, the Court of Appeals again dismissed an appeal for failure to include a certificate of service in the ROA, and the Supreme Court summarily reversed on the basis of Hale. See Edwards v. West, 492 S.E.2d 356 (N.C. 1997). And The following year, the Supreme Court again reversed the Court of Appeals, ordering, pursuant to Hale, that "the Court of Appeals is directed to hear and determine plaintiff's appeal." Hill v. Town of Cape Carteret, 500 S.E.2d 96 (N.C. 1998).)

The recent Court of Appeals cases rely on Appellate Rules 3 and 26. But these rules don't address the contents of the ROA (that issue is regulated by Rule 9). Rule 3 requires that a notice of appeal be timely filed and served. And Rule 26 simply requires that papers filed with a court be served and that proof of service (a certificate of service) be affixed to the paper.

The recent Court of Appeals cases also rely on the controversial Viar v. N.C. Dep't of Transp., 359 N.C. 400, 610 S.E.2d 360 (2005), which held that the Court of Appeals cannot use Rule 2 (i.e., cannot suspend the appellate rules) to create an appeal for an appellant who has violated the rules by not properly advancing an issue on appeal. But as Judge Geer explained in her Blevins dissent today: "Viar does not specifically address the issue at hand. Hale is directly on point. I am not comfortable broadly assuming that the Supreme Court has sub silentio overruled its own prior decisions--or in construing as controlling authority mere dicta suggesting such a possibility. It is inconsistent with the concept of precedent to dismiss an appeal that fully complies with a prior Supreme Court decision on the basis that a subsequent opinion of the Supreme Court--not specifically addressing the issue--silently overruled that prior opinion." She added, "It is particularly inappropriate to do so sua sponte without notice to the appellant and without any opportunity to correct the purported error by moving to amend the record on appeal."

Judge Wynn registered a similar complaint last month in his dissent in In re C.T., writing that Viar "did not overrule the well-settled holding of Hale" and that, accordingly, the Ribble panel "did not have the authority to overrule our Supreme Court's holding in Hale."

As today's Blevins decision shows, it doesn't matter if the appellee stipulates to the ROA, never raises an issue about service of the notice of appeal, and files an appellate brief addressing the merits of the appeal. Even so, the Court of Appeals may raise this issue itself and dismiss the appeal. And as Ribble shows, even if the appellant includes in the ROA a signed document stating that all papers in the ROA (including the notice of appeal) were timely filed and served, the Court of Appeals may still dismiss the appeal.

The bottom line: include in the ROA the certificate of service for the notice of appeal.

And also make sure you include in the ROA a file-stamped copy of the notice of appeal. Today's Blevins decision also ruled that the Town's appeal had to be dismissed because the copy of the notice of appeal in the ROA didn't show the date on which it was filed, as required by Rule 9(b)(3). Rule 9(b)(3) provides, "Every pleading, motion, affidavit, or other paper included in the record on appeal shall show the date on which it was filed and, if verified, the date of verification and the person who verified." The Court held the appeal had to be dismissed because the appellant "failed to provide a stamped copy of a notice of appeal filed with the Clerk of Superior Court" and the "notice of appeal does not show it was either filed with or stamped by the Clerk of Superior Court." Judge Geer dissented on this ruling as well because the stipulated ROA contained a statement identifying the date when the notice of appeal was filed. The majority's decision indicates that a stipulation won't satisfy Rule 9(b)(3).

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