COA Excuses Rule Violations
Today the Court of Appeals (COA) held that various violations of Appellate Rule 7 --regarding the preparation of the transcript – didn’t warrant dismissal of the appeal. The case is Lawrence v. Sullivan.
Appellant failed to file and serve written documentation of the transcript arrangement, as required by Appellate Rule 7(a)(1). The court reporter failed to produce the transcript within the 60-day deadline, as required by Rule 7(b), and the record contained no explanation of the court reporter's delay. Appellant didn’t seek (under Rule 7(b)) an extension of time for the court reporter to produce the transcript, even though the court reporter warned plaintiff before the 60-day deadline expired that the transcript wouldn’t be produced on time. The appellee thus argued that the proposed record on appeal wasn't timely served.
The COA deemed the Rule 7 violations to be nonjurisdictional failures that weren't egregious enough to warrant dismissal of the appeal. The COA reiterated its case law holding that "[i]f the court reporter fails to certify that the transcript has been delivered within the sixty-day period permitted by Appellate Rule 7(b), the thirty-five day period within which an appellant must serve the proposed record on appeal does not begin to run until the court reporter does certify delivery of the transcript. To hold otherwise would allow a delay by a court reporter, whether with or without good excuse, to determine the rights of litigants to appellate review."
The COA, however, offered this warning to appellant's counsel: "we strongly stress to plaintiff's attorney the importance of following the appellate rules and urge him to remember that 'when a court reporter fails to deliver a transcript within the time allowed by the appellate rules, the better practice is that appellant request an extension of time from the appropriate court.'"
Appellant failed to file and serve written documentation of the transcript arrangement, as required by Appellate Rule 7(a)(1). The court reporter failed to produce the transcript within the 60-day deadline, as required by Rule 7(b), and the record contained no explanation of the court reporter's delay. Appellant didn’t seek (under Rule 7(b)) an extension of time for the court reporter to produce the transcript, even though the court reporter warned plaintiff before the 60-day deadline expired that the transcript wouldn’t be produced on time. The appellee thus argued that the proposed record on appeal wasn't timely served.
The COA deemed the Rule 7 violations to be nonjurisdictional failures that weren't egregious enough to warrant dismissal of the appeal. The COA reiterated its case law holding that "[i]f the court reporter fails to certify that the transcript has been delivered within the sixty-day period permitted by Appellate Rule 7(b), the thirty-five day period within which an appellant must serve the proposed record on appeal does not begin to run until the court reporter does certify delivery of the transcript. To hold otherwise would allow a delay by a court reporter, whether with or without good excuse, to determine the rights of litigants to appellate review."
The COA, however, offered this warning to appellant's counsel: "we strongly stress to plaintiff's attorney the importance of following the appellate rules and urge him to remember that 'when a court reporter fails to deliver a transcript within the time allowed by the appellate rules, the better practice is that appellant request an extension of time from the appropriate court.'"
1 Comments:
Another slap on the wrist for violation of the Rules (i.e., Optional Guidelines) of Appellate Procedure. The response to Viar was extreme in the rigidity of the CoA's enforcement of the Rules, and for the most part, the response to Dogwood has been extreme in the opposite direction... Perhaps at some point, the pendulum will swing back to the middle.
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