So Much For Uniformity: COA Issues Conflicting Decisions On Rule Violations
Yesterday the Court of Appeals (COA) issued its first decisions on appellate rules violations after last month's significant NC Supreme Court (SCT) decisions in State v. Hart and Walsh v. Town of Wrightsville Beach. The COA issued two cases, both split decisions. In one of the cases Judge Tyson's majority decision (joined by Judge Calabria) dismissed over Judge Hunter's dissent. In the other case Judge Jackson (joined by Judge Hunter) refused to dismiss a case over Judge Tyson's dissent. The rulings conflict with each other. For those who were optimistic that Hart and Walsh would usher in a more permissive attitude on the COA, that appears not to be the case, at least not with respect to some judges who continue to embrace what seems to be a zero-tolerance policy on rule violations.
Hart and Walsh
Last month, on May 4, the SCT issued its unanimous decision in State v. Hart. (For our post on Hart, see here.) The SCT in Hart reversed a COA decision which dismissed an appeal for a violation of the appellate rules. The SCT held that “every violation of the rules does not require dismissal of the appeal or the issue, although some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure.” The SCT remanded to the COA "for consideration of whether to exercise such discretion and whether other sanctions should be imposed pursuant to appellate Rule 25(b) or Rule 34." Hart is a criminal case.
On the same day it handed down Hart, the SCT reversed the COA in Walsh v. Town of Wrightsville Beach, another case where the COA had dismissed the appeal for rules violations. The SCT remanded Walsh for reconsideration in light of Hart. Walsh is a civil case.
The COA's dismissal decisions in both Hart and Walsh were written by Judge Calabria. Judge Hunter dissented in both cases, arguing that dismissal was inappropriate. The cases got to the SCT based on Judge Hunter's dissents.
Yesterday's Decisions
Yesterday's two cases were both civil cases: Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co. and McKinley Bldg. Corp. v. Alvis. The same rule violations were present in both cases: the assignments of error in the record didn't include record or transcript reference cites; the briefs didn't properly refer to the assignments of error; and the briefs didn't comply with the briefing rules requiring a statement of the grounds for appellate review and a statement of the standard of review. Yet, despite the similar violations, the panels reached different results on whether the violations were sufficiently egregious to warrant dismissal (McKinley -- no; Dogwood -- yes).
So much for uniformity.
McKinley
In McKinley, Judge Jackson's majority opinion concluded that Hart "mandates a closer look at this Court's recent practice of dismissing numerous appeals," since "Hart explicitly states that dismissal is only one possible sanction for a violation of the Appellate Rules." The majority said dismissing the appeal "would be a step backward rather than the step forward that Hart asks us to take in applying the full range of sanctions available under the Appellate Rules rather than summarily dismissing many appeals. " Interestingly, the majority suggested it was not applying Rule 2--i.e., not suspending the rules--since it was, after all, sanctioning appellants' counsel for violating those rules, per Rules 25 and 34. (See discussion below of Judge Hunter's dissent in Dogwood.) The majority said that although Rule 2 must be applied cautiously, "Hart suggests no similar limitation on the application of Rules 25 and 34, and we see no reason to engraft any limitation beyond the language contained within the Rules at this time. Under Hart, clearly, it is appropriate to apply the other sanctions envisioned by these Rules liberally and to allow appeals to proceed."
Judge Tyson's dissent seized on Rule 2's narrow language (e.g., manifest injustice) and concluded that Rule 2 didn't rightly justify suspension of the rules. He deemed the violations "serious and egregious enough to warrant dismissal." He distinguished Hart on the basis that Hart was a criminal case with only a single rule violation.
Dogwood
In Dogwood, also a civil case and involving the same rule violations present in McKinley, Judge Tyson's views carried the day. His majority opinion concluded that the violations were egregious and warranted dismissal. The majority held that each of the four violations independently warranted dismissal. The majority declined to exercise discretion under Rule 2 to suspend the rules. The majority distinguished Hart on various grounds (see below).
Judge Hunter dissented. He believed monetary sanctions should be imposed in lieu of dismissal. He deemed the violations to be of a technical nature. He contended the court should weigh the severity and extent of those violations in choosing a sanction, and he suggested that the court should approach these matters by first considering lesser sanctions.
Interestingly, Judge Hunter suggested that Rule 2, with its narrow language, is not really an obstacle to reviewing the merits. Here's why. Rule 2, entitled "Suspension of rules," talks about suspending or varying the rules' requirements. But when a party is sanctioned with a monetary penalty per Rules 25 and 34 and the court proceeds to review the merits, the court is enforcing the rules, and thus the court is not suspending the rules per Rule 2. In other words, Judge Hunter suggests that the court may review the merits without invoking Rule 2 so long as the court otherwise sanctions the offending party per Rules 25 and 34.
Hart and Walsh
Last month, on May 4, the SCT issued its unanimous decision in State v. Hart. (For our post on Hart, see here.) The SCT in Hart reversed a COA decision which dismissed an appeal for a violation of the appellate rules. The SCT held that “every violation of the rules does not require dismissal of the appeal or the issue, although some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure.” The SCT remanded to the COA "for consideration of whether to exercise such discretion and whether other sanctions should be imposed pursuant to appellate Rule 25(b) or Rule 34." Hart is a criminal case.
On the same day it handed down Hart, the SCT reversed the COA in Walsh v. Town of Wrightsville Beach, another case where the COA had dismissed the appeal for rules violations. The SCT remanded Walsh for reconsideration in light of Hart. Walsh is a civil case.
The COA's dismissal decisions in both Hart and Walsh were written by Judge Calabria. Judge Hunter dissented in both cases, arguing that dismissal was inappropriate. The cases got to the SCT based on Judge Hunter's dissents.
Yesterday's Decisions
Yesterday's two cases were both civil cases: Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co. and McKinley Bldg. Corp. v. Alvis. The same rule violations were present in both cases: the assignments of error in the record didn't include record or transcript reference cites; the briefs didn't properly refer to the assignments of error; and the briefs didn't comply with the briefing rules requiring a statement of the grounds for appellate review and a statement of the standard of review. Yet, despite the similar violations, the panels reached different results on whether the violations were sufficiently egregious to warrant dismissal (McKinley -- no; Dogwood -- yes).
So much for uniformity.
McKinley
In McKinley, Judge Jackson's majority opinion concluded that Hart "mandates a closer look at this Court's recent practice of dismissing numerous appeals," since "Hart explicitly states that dismissal is only one possible sanction for a violation of the Appellate Rules." The majority said dismissing the appeal "would be a step backward rather than the step forward that Hart asks us to take in applying the full range of sanctions available under the Appellate Rules rather than summarily dismissing many appeals. " Interestingly, the majority suggested it was not applying Rule 2--i.e., not suspending the rules--since it was, after all, sanctioning appellants' counsel for violating those rules, per Rules 25 and 34. (See discussion below of Judge Hunter's dissent in Dogwood.) The majority said that although Rule 2 must be applied cautiously, "Hart suggests no similar limitation on the application of Rules 25 and 34, and we see no reason to engraft any limitation beyond the language contained within the Rules at this time. Under Hart, clearly, it is appropriate to apply the other sanctions envisioned by these Rules liberally and to allow appeals to proceed."
Judge Tyson's dissent seized on Rule 2's narrow language (e.g., manifest injustice) and concluded that Rule 2 didn't rightly justify suspension of the rules. He deemed the violations "serious and egregious enough to warrant dismissal." He distinguished Hart on the basis that Hart was a criminal case with only a single rule violation.
Dogwood
In Dogwood, also a civil case and involving the same rule violations present in McKinley, Judge Tyson's views carried the day. His majority opinion concluded that the violations were egregious and warranted dismissal. The majority held that each of the four violations independently warranted dismissal. The majority declined to exercise discretion under Rule 2 to suspend the rules. The majority distinguished Hart on various grounds (see below).
Judge Hunter dissented. He believed monetary sanctions should be imposed in lieu of dismissal. He deemed the violations to be of a technical nature. He contended the court should weigh the severity and extent of those violations in choosing a sanction, and he suggested that the court should approach these matters by first considering lesser sanctions.
Interestingly, Judge Hunter suggested that Rule 2, with its narrow language, is not really an obstacle to reviewing the merits. Here's why. Rule 2, entitled "Suspension of rules," talks about suspending or varying the rules' requirements. But when a party is sanctioned with a monetary penalty per Rules 25 and 34 and the court proceeds to review the merits, the court is enforcing the rules, and thus the court is not suspending the rules per Rule 2. In other words, Judge Hunter suggests that the court may review the merits without invoking Rule 2 so long as the court otherwise sanctions the offending party per Rules 25 and 34.
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