Tuesday, June 19, 2007, 12:15 PM

Dogwood and McKinley Reprise

Two weeks ago we chronicled the divide in the Court of Appeals (COA) over the handling of rule violations in the wake of the NC Supreme Court's recent decisions in State v. Hart and Walsh v. Town of Wrightsville Beach. (See my posts here and here.) Specifically, two weeks ago, in Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co. and McKinley Bldg. Corp. v. Alvis, two split panels reached conflicting decisions with respect to the same rule violations, with one panel voting 2-1 to dismiss the appeal, and the other panel voting 2-1 not to dismiss. Judge Tyson (the author or Dogwood and the dissenter in McKinley) voted for dismissal in both cases. Judge Hunter voted against dismissal in both Dogwood and McKinley. Judge Jackson wrote McKinley (not dismissing).

Well, today the McKinley panel -- Jackson, Hunter, and Tyson -- issued another decision, splitting again on whether to dismiss an appeal for rules violations. As in McKinley, Judge Jackson wrote the majority opinion, joined by Judge Hunter; Judge Tyson dissented, voting to dismiss. The case is Peverall v. County of Alamance.

The violations: failure to include statement regarding standard of review (as required by Rule 28(b)(6)) and incorrect references to record after assignments of error. The majority decided the violations weren't so egregious as to warrant dismissal, and elected instead (as in McKinley) to order plaintiff's counsel to pay the printing costs of this appeal pursuant to Rule 34(b).

Judge Tyson, whose view appears to be that any rule violation justifies dismissal, cited Stann v. Levine (N.C. App. 2006), a split decision where Judge Jackson, joined by Judge Tyson, dismissed an appeal for noncompliance with Rule 28(b)(6)'s "standard of review" requirement. That decision by Judge Jackson, however, was decided before the Supreme Court decision last month in State v. Hart and followed in a post-Viar line of cases repudiated by the Supreme Court in Hart.

Thus, in the span of two weeks, the COA has managed to generate three split decisions for potential Supreme Court review. And this happened in just the first month post-Hart, before remand decisions issued in Hart and Walsh. With these decisions, the Supreme Court may finally have to confront this issue: Is the COA really "suspending" the rules (per Rule 2) when the COA enforces the rules and sanctions the appellant under Rules 25 and 34 for noncompliance, while reviewing the merits? In today's case, for example, the majority enforced Rule 28(b)(6) (standard of review) by sanctioning the appellant's counsel; the majority did not "suspend" the rule.

The dissent sees this as a Rule 2 case. I don't agree. Rule 28(b)(6) doesn't say, "A failure to state the standard of review renders the appeal nonreviewable." If it did say that, then I could buy the argument that the COA would have to "suspend" Rule 28(b)(6) in order to review the merits (i.e., suspend the hypothetical no-review requirement); and then we could quibble about the scope of discretion conferred by Rule 2 . But Rule 28(b)(6) doesn't say that.

As I see it, the majority enforced Rule 28(b)(6) by sanctioning the violation; consequently, there was no "suspension" of that rule; therefore, Rule 2 is irrelevant.

For those of you who follow these rule violation cases, feel free to post your comments.

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