Tuesday, November 06, 2007, 9:55 PM

More Dismissals For Rule Violations

Today the Court of Appeals (COA) dismissed two civil cases for rule violations: Capps v. NW Sign Indus. of N.C., Inc. and Selwyn Village Homeowners Ass'n v. Cline & Co. Both were authored by Judge Tyson. Both were heard the same day by the same panels: Judges Tyson, Elmore, and McGee. These cases are discussed below. Also discussed below are two more rule violations cases decided today. One is the remand decision in Walsh v. Town of Wrightsville Beach, in which the panel (last year) initially dismissed for rule violations over a dissent, resulting in a Supreme Court reversal and remand for reconsideration in light of State v. Hart. Finally, we discuss a criminal case decided today in which the COA declined to dismiss for a rule violation.

Capps v. NW Sign Indus. of N.C., Inc.

Judge Tyson's majority opinion identified the following rules violations, both dealing with assignments of error:

1. The assignments of error referenced the first page of the trial court's order. This was deemed a violation of the requirement that assignments of error must include specific record record references. This subjected the appeal to dismissal.

2. Appellants' brief, after each question presented, cited all 34 assignments of error, without specifying which assignments corresponded to each question. This was deemed "sufficiently egregious to warrant dismissal."

The majority emphasized that the appellee moved to dismiss the appeal and that thereafter the appellants didn't move to amend the record to correct their assignments of error or to amend or substitute their brief to correctly identify the specific assignments of error correlating to each question presented.

Judge McGee dissented. She would impose a sanction but not dismiss the appeal. She observed that after State v. Hart was decided by the Supreme Court six months ago, the COA had declined to dismiss appeals despite multiple rules violations, including violations similar to those in Capps. See Peverall v. County of Alamance and McKinley Bldg. Corp. v. Alvis. Both Peverall and McKinley were issued over dissents by Judge Tyson, who voted to dismiss the appeals. But another post-Hart case was cited by the Capps majority today: Dogwood v. Dev. & Mgmt. Co. LLC v. White Oak Transp. Co., and it (unlike Peverall and McKinley) did dismiss an appeal for rule violations. Dogwood was authorized by Judge Tyson over a dissenting opinion.

Selwyn Village Homeowners Ass'n v. Cline & Co.

The Court's opinion identified the following rule violations:

1. Appellant's brief referenced the assignments of error after the questions presented but failed to follow those references with the pages at which the assignments of error appear in the record. "Defendant's failure to identify any assignment of error by the page where it appears in the record following the question presented . . . subjects its appeal to dismissal."

2. Appellant committed format errors at variance with the Appendices to the Rules: (a) the index to the brief didn't have a 5" line (i.e., didn't have extra 3/4" margins); (b) the captions and headings were double-spaced rather than single-spaced; and (c) the index to the appendix following the appellant's brief didn't show the pages of the brief at which the appendix was cited.

Thus, the panel deemed technical format errors sufficiently egregious to warrant dismissal. As in Capps, the panel emphasized that a motion to dismiss the appeal was filed and that appellant made no attempt to correct, amend, or substitute the brief. Interestingly, Judge McGee joined this decision even though she dissented in Capps.

Walsh v. Town of Wrightsville Beach

This case was dismissed for rules violations by a split COA in August 2006. The violations:

1. Appellant's assignment of error lacked proper references to the record.

2. Appellant's brief contained no reference to his assignment error.

Judge Hunter dissented, and six months ago the Supreme Court issued a per curiam decision reversing the COA and remanding "for reconsideration in light of our decision in State v. Hart" which was decided that same day.

Today the COA issued the remand decision in Walsh. The Court didn't discuss the rule violations or Rule 2, but instead proceeded straight to the merits. Yet the rule violations in Walsh were the same violations identified in today's Capps decision discussed above (violations of Rules 10(c)(1) and 28(b)(6)). Thus, today two different COA panels have issued what appear to be conflicting decisions. The only meaningful difference in the two cases, it appears, is this: in Capps the appellee moved to dismiss; in Walsh the appellee did not.

State v. Parker

In State v. Parker, a criminal case decided today, the appellant violated the rules by failing to include a statement of the standard of review, but the Court declined to dismiss, holding that, while violation of this rule may result in dismissal, the "Rules of Appellate Procedure allow for the imposition of less drastic sanctions, a remedy which is particularly appropriate in a criminal matter. Therefore, we elect to chastise defense counsel with an admonishment to exercise more diligence in stating the standard of review in briefs prepared for this Court."


After Hart, the COA has issued a handful of decisions in cases involving rule violations. In McKinley, Peverall, and Walsh, the panels didn't dismiss the appeals. They decided the merits. In Dogwood, Capps, and Selwyn, however, the panels voted to dismiss the appeals. Because dissents issued from the dismissals in Dogwood and Capps, the Supreme Court may have another opportunity to weigh in on this debate. Dogwood has already been briefed in the Supreme Court and is awaiting an argument date.


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