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Appellate Rules Only Apply to Appeals

This week’s opinions from the North Carolina Court of Appeals offered several helpful reminders for appellate practitioners. First, don’t forget to include all required parts of the record on appeal—including the index. See Tate v. Calloway. Second, even after Dogwood a brief can be error-laden enough to result in dismissal. See Leeuwenburg v. Harmon. Third, remember that for interlocutory appeals it is up to the appellant to explain how it has been deprived of a substantial right; failure to do so will result in dismissal of the appeal for lack of jurisdiction. See Isabeau Dakota Inc. v. Hagler. It is not enough for an appellant merely to state that the court has jurisdiction or that a substantial right has been affected; the appellant must provide “sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.” N.C. R. App. P 28(b)(4) (emphasis added).

But most importantly, know when the appellate rules apply and when they do not. Bowman v. Scion was an appeal from a decision by the Industrial Commission regarding worker’s compensation benefits. Those who practice in this area know that an injured party first has a hearing before a deputy commissioner, and then either party can appeal to the full commission. From there, a party can appeal to the Court of Appeals. The principal issue in Bowman was the introduction into evidence of three surveillance videos from the injured employee’s workplace. The defendants argued that the plaintiff could not have challenged the evidence before the Commission because he had not objected at the hearing before the deputy commissioner. The defendants relied on appellate decisions and particularly on Rule 10 of the North Carolina Rules of Appellate Procedure (which explains how a party preserves an issue for appeal).

The Court of Appeals explained that this emphasis was misplaced, as the appellate rules do not apply at hearings before the Industrial Commission. In fact, the rules themselves state that they only apply to 1) “appeals from the courts of the trial division to the courts of the appellate division,” 2) “appeals in civil and criminal cases from the Court of Appeals to the Supreme Court,” 3) “applications to the courts of the appellate division for writs and other relief,” and 4) “direct appeals from administrative agencies, boards, and commissions to the appellate division.” N.C. R. App. P. 1(b) (emphasis added). Under that rule, then, “the mere fact that a particular issue was not raised before a deputy commissioner does not, standing alone, obviate the necessity for the Commission to consider that issue.” The Commission properly considered the issue surrounding the videotapes, even without a specific objection before the deputy commissioner.

Actions that deviate from the standard track of the superior court to the Court of Appeals complicate the application of the appellate rules. Practitioners should remember when and where the rules apply and proceed accordingly.

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