Tuesday, September 02, 2008, 12:52 PM

COA: No Sanctions Warranted For Rule Violations

Today in Yorke v. Novant Health, Inc. the Court of Appeals (COA) refused to dismiss an appeal (or issue any other sanction) despite several appellate rule violations. The appellant didn't timely settle the record on appeal (it was settled months beyond the deadline prescribed by the rules). The Court deemed this untimeliness a nonjurisdictional violation--i.e., the timeline in Rule 11(c)for settling the record on appeal isn't necessary to vest the COA with jurisdiction. And although the Court deemed it a substantial violation, the Court declined to impose sanctions.

The Court in Yorke also held that, in an appeal from a final judgment, the Court (per G.S. 1-278) can review an interlocutory order that was not enumerated in the notice on appeal, so long as: (1) the appellant timely objected to the order; (2) the order wasn't immediately appealable; and (3) the order involved the merits and necessarily affected the judgment. To be on the safe side, however, an appellant should identify in the notice of appeal each underlying order the appellant wishes to challenge on appeal.

In a separate case today, Kitchin v. Halifax County, the COA held that the appellant violated Rule 10(c) regarding the statement of assignments of error, but declined to dismiss or impose any other sanction.

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