COA Reviews Costs Award, Despite Appellate Rules Violation

In Vaden v. Dombrowski, filed today, the COA affirmed the trial court's award of deposition, expert, and "reasonable and necessary" costs, noting that cost awards expressly allowed under the pertinent statute, N.C. Gen. Stat. sec. 7A-305, and the common law were permissible. The COA held, however, that neither the statute nor the common law allowed the court to award travel costs to mediation and therefore reversed as to that part of the cost award.

The COA also noted, as an initial matter, that the appellant had failed to include the standard of review for one of its arguments. The appellee argued for dismissal on that basis in its brief but not in a motion made pursuant to Appellate Rule 37. The COA held that "[a]s defendants have failed to file such a motion we chose to decide this appeal based upon its merits" and cited Appellate Rule 2 (which allows for the suspension of the rules, allowing the COA to reach the merits to prevent manifest injustice or expedite a decision in the public interest). Would the outcome have been different here if the appellee had filed a motion to dismiss? If so, why? It is also unclear how the appellee's failure to file a motion warrants a suspension of the rules per Rule 2, which is what the court seems to indicate, where Rule 2 mentions as grounds for suspension only manifest injustice and the public interest.