Wednesday, June 06, 2007, 5:35 AM

COA To Counsel: Don't Try To Get 2 Bites At Appellate Apple

In Pineville Forest Homeowners Association v. Portrait Homes Construction Co., the COA sanctioned appellate counsel for raising the same issue twice.

In Pineville, the defendant had previously appealed and argued that a third-party warranty barred plaintiff's suit, mandated arbitration, and warranted dismissal. 175 N.C.App. 380 (2006). The court refused to address the third-party warranty issue as interlocutory.

However, the court addressed the arbitration issue, at least in the context of a Declaration of Covenants, Conditions, and Restrictions, also on the basis of which defendant argued arbitration was mandatory. The COA held that a substantial right was affected but that the trial court order's was too minimalist to review. The COA remanded for further proceedings as necessary and entry of a new order with findings and determinations regarding the arbitration provisions' validity and applicability.

On remand, the trial court followed the COA's directive and entered a new order regarding arbitration, which the defendant again appealed. In their second appeal, the defendant again raised the argument that a third-party warranty barred plaintiff's suit and mandated arbitration.

The COA held that the third-party warranty issue in Tuesday's Pineville was the same issue the COA had already held to be interlocutory and declined to review in the previous Pineville appeal--even though it was at least cast as going to the arbitration issue. The COA did not take kindly to what it saw as an attempt for a second bite at the appellate apple. The COA found the argument "offensive," and "caution[ed] Defendant's counsel that appellate practice is not sandlot baseball; absent prior judicial approval by either the grant of a motion for rehearing by the same Court, or the grant of a petition for consideration by a higher Court, there are no 'do overs.'" The Court sanctioned counsel under Appellate Rule 34, which allows the court to impose sanctions where "an appeal or any proceeding in an appeal was frivolous."

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