Tuesday, December 18, 2007, 10:51 PM

Court of Appeals Declines To Dismiss Appeals Despite Rules Violations

In the continuing saga over whether to dismiss appeals for rule violations, several opinions of note were written today by Judge Jackson. It's obvious that the Supreme Court's recent decision in State v. Hart is having somewhat of an impact.

1. Meadows: Omission Of Statement Of Standard Of Review Is Not Grounds For Dismissal; Rule 2 Doesn't Have To Be Invoked

In Meadows v. Iredell County, a published decision, the appellants, who were appealing a Rule 12(b)(6) order, violated Appellate Rule 28(b) by failing to include in their brief a statement of the standard of review. In a decision written by Judge Jackson and joined by Judges Tyson and Stroud, the Court cited the Hart for the proposition that "every violation of the rules does not require dismissal; sanctions pursuant to Rules 25(b) or 34 may be appropriate." The Court, however, didn't even impose sanctions; instead the court "elect[ed] to admonish plaintiff's counsel to exercise more diligence in preparing briefs for this Court."

There was no mention of Rule 2.

In some pre-Hart decisions some panels had dismissed appeals or declined to review issues that were lacking a statement of the standard of review. As Judge Tyson stated in dissent just six months ago in Peverall v. County of Alamance: "In Stann v. Levine, this Court dismissed the appeal in part because the appellant failed to state an applicable standard of review. --- N.C.App. ----, ----, 636 S.E.2d 214, 216 (2006). Also, in State v. Summers, this Court dismissed one of the appellant's arguments because of his failure to include a statement of the applicable standard of review. 177 N.C.App. 691, 700, 629 S.E.2d 902, 908, appeal dismissed and disc. rev. denied, 360 N.C. 653, 637 S.E.2d 192 (2006). Plaintiff's failure to adequately state the applicable standard of review for the question presented violates Appellate Rule 28(b)(6) and warrants dismissal of his appeal.") (emphasis added). And, in a separate decision six months ago and authored by Judge Tyson, the Court said: Defendant's failure to state the applicable standard of review for each question presented violates Appellate Rule 28(b)(6) and warrants dismissal of its appeal. " Dogwood Dev. & Mgmt. Co. v. White Oak Transport Co. (filed 6/5/07).

2. Rogers: Omission Of Statement Of Grounds For Appellate Review Is Not Grounds For Dismissal; Rule 2 Doesn't Have To Be Invoked

In an unpublished opinion today in Rogers v. Life Partners, Inc., the appellants violated Rule 28(b) by failing to include in their brief a statement of the grounds for appellate review. The Court, in an opinion by Judge Jackson and joined by Judges Tyson and Arrowood, held that the violation was "not so egregious as to warrant dismissal," and the Court elected instead to impose a sanction under Rule 34(b), ordering the appellant's counsel to pay the printing costs of the appeal. Now, the grounds for appellate review were fairly obvious, since the plaintiffs were appealing an order granting summary judgment to the defendants. But this decision can be read more broadly to mean that the omission of the statement of grounds for appellate review is not an "egregious" violation warranting dismissal.

Notably, like the Meadows case discussed above, the Court did not purport to invoke Rule 2 to suspend the rules; it deemed Rule 34 the proper vehicle for handling the violation.

This again shows the impact of Hart. Indeed, in a pre-Hart decision by Judge Jackson last year, the Court of Appeals held that the statement of grounds for appellate review (required by Rule 28(b)) is a "significant section" the omission of which renders the appeal "not properly before this Court," unless the court "suspends" Rule 28(b) by invoking Rule 2. See State v. Locklear (filed 11/7/06). And six months ago, in a decision by Judge Tyson, the Court said: "Defendant's failure to state the grounds for appellate review violates Appellate Rule 28(b)(4) and warrants dismissal of its appeal." Dogwood Dev. & Mgmt. Co. v. White Oak Transport Co. (filed 6/5/07) (emphasis added).

3. Judge Jackson's Concurring Opinion In State v. Spencer: Rule 2 Doesn't Need To Be Invoked Before The Court May Review The Merits Of An Appeal Upon Finding A Rule Violation

In a third case today which featured the same panel as Meadows above, the appellant (a criminal defendant) raised on appeal an issue for which he failed to assign error: that he couldn't lawfully be convicted both for larceny and possession of the same stolen property. Judge Tyson's majority decision invoked Rule 2 to "suspend" the rules -- i.e., to "suspend" Rule 10(a) which limits the scope of review on appeal to those assignments of error set out in the record) to prevent a manifest injustice (Rule 2 allows suspension to avoid a "manifest injustice").

Judge Jackson concurred by separate opinion to emphasize that "while not all Appellate Rules violations warrant dismissal, neither do they all require a determination of whether to invoke Rule 2." What Judge Jackson is alluding to, I take it, is that the focus on Rule 2 in many rule violation cases is misplaced. With respect to most rule violations, Rule 2 doesn't need to be invoked and satisfied before the Court may review the merits of the appeal; the Court may issue a lesser sanction than dismissal (such as an award of costs) under Rules 25 and 34. For when the Court, upon finding a rule violation, issues a sanction under Rules 25 or 34--including a sanction less drastic than dismissal, such as an award of costs--the Court is enforcing the rules and is not suspending them. Very few rules require suspension under Rule 2 before the Court may review the merits when confronted with a violation. One such rule is Rule 10 relating to assignments of error: Rule 10 says that the scope of review is limited to those assignments of error set out in the record; thus, Rule 1o must be suspended (by invoking Rule 2) if the Court wishes to review an issue to which the appellant did not assign error in the record. But the same cannot be said with respect to most other rule violations. Thus, as Judge Jackson explained in her special concurrence in Spencer today:

In State v. Hart, 361 N.C. 309, 644 S.E.2d 201 (2007), our Supreme Court reminded this Court 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.” Id. at 311, 644 S.E.2d at 202 (emphasis added). Therefore, when Rules violations are not so egregious as to warrant dismissal, sanctions “may be appropriate.” This leaves open the possibility that sanctions may not be appropriate when the violations are minor.
“[T]he exercise of Rule 2 was intended to be limited to occasions in which a 'fundamental purpose' of the appellate rules is at stake, which will necessarily be 'rare occasions.'” Id. at 316, 644 S.E.2d at 205 (citations omitted). “Rule 2 must be applied cautiously.” Id. at 315, 644 S.E.2d at 205. “Before exercising Rule 2 to prevent a manifest injustice, both [the Supreme] Court and the Court of Appeals must be cognizant of the appropriate circumstances in which the extraordinary step of suspending the operation of the appellate rules is a viable option.” Id. at 317, 644 S.E.2d at 206.
Because Rule 2 is an “extraordinary step,” I do not believe that it should be invoked every time there are Rules violations which fail to rise to the level of requiring dismissal. Just as sanctions may not be appropriate even for minor Rules violations, Rule 2 also may not be appropriate when the Rules violations are minor.
Since Hart, this Court has declined to dismiss an appeal and reached the merits of the case without invoking Rule 2 on several occasions. [Citing cases]
I would reserve the invocation of Rule 2 for those cases in which the very nature of the particular Appellate Rule violation requires its use. One example of such a violation is the one in the case sub judice. Here, if we were to decline to invoke Rule 2, there would be no assignment of error to address. [Emphasis added]

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