Post-Dogwood, cases in which appeals are dismissed for non-jurisdictional rules violations are rare. Last Tuesday, the Court of Appeals issued an opinion that bucked that trend—along with a dissent.
In Ramsey v. Ramsey, the appellant (Mr. Ramsey) timely appealed from a trial court order holding him in civil contempt and requiring him to pay damages and attorneys’ fees.
Non-Jurisdictional Violations That Led the Majority to Dismiss the Appeal
The Court of Appeals majority dismissed Mr. Ramsey’s appeal for “gross and substantial noncompliance with the North Carolina Rules of Appellate Procedure,” noting that his counsel had committed “at least eight mandatory” rules violations:
- No “Statement of the Facts”
- No “Statement of the Case”
- No “Statement of Grounds for Appellate Review”
- No “Statement of Issues Presented”
- Standard of Review Defects. Mr. Ramsey’s recitations of the standard of review were located at the “beginning of the discussion” only as to one of the three arguments. The other standards of review were located at the end of each argument. Moreover, two of the three standards of review were not supported by citations to legal authority.
- Certificate of Service Defect. The appellant’s brief stated that it was served “‘upon all parties to this cause’ rather than specifically identifying ‘the names of the persons served,’ as required by Rules 28(b)(9) and 26(d).”
- Improper Certificate of Compliance. The appellant’s certificate of compliance “declared the precise number of words contained in [the appellant’s] brief, instead of the statement required by Rule 28(j)(2) that it ‘contains no more than [8,750] words.’”
- Untimely filing of record on appeal. The majority calculated that the record was filed six days late.
The majority concluded that due to the quality and quantity of violations committed by the appellant’s counsel, dismissal of Mr. Ramsey’s appeal was “appropriate and justified” to encourage future compliance with the Appellate Rules.
Dissent Takes a Different Approach
Judge Dillon dissented. The dissent agreed that the appellant’s counsel had committed a number of non-jurisdictional violations. However, the dissent was able to comprehend the arguments being made by the appellant’s brief. Thus, the dissent concluded that the merits of the appeal should have been reached under Dogwood.
Turning to the merits, the dissent concluded that the trial court had erred in (1) holding Mr. Ramsey in civil contempt because he had complied with the consent judgment by the time the contempt order was entered, and (2) ordering Mr. Ramsey to pay damages because damages are not recoverable in civil contempt proceedings. Judge Dillon voted to affirm the award of attorneys’ fees.
The dissenting opinion gives the appellant the right to have the Supreme Court address whether the dismissal of his appeal was appropriate. Given the small amount of money at issue, an appeal to the Supreme Court would not appear to be guaranteed.
Were All of the Problems Flagged by the Majority Actual Appellate Rules Violations?
There is no question that the appellant committed several major briefing errors—completely leaving out required sections of the appellant’s brief. Still, it would be interesting to hear the Supreme Court’s take as to several of the other violations flagged by the majority.
- Timeliness of Filing of Record on Appeal. The appellant’s record on appeal was filed 13 June 2018.
- Majority’s calculation: The appellant’s proposed record was served on 23 April 2018. According to the majority opinion, because the appellee did not serve objections and amendments within 30 days, the record on appeal was deemed settled by operation of Appellate Rule 11(b) on 23 May 2018. As such, the majority concluded that the record was required to be filed on or before 7 June 2018. But is that necessarily true?
- Alternative calculation: The record on appeal states that the appellant’s proposed record was served on the appellee by mail. When service is by mail, three additional days are added to the appellee’s 30-day period to serve objections and amendments. See N.C. R. App. P. 26(g). Thirty-three days from 23 April was Saturday, 26 May 2018. Under Appellate Rule 27(a), an appellee’s deadline to respond to a proposed record cannot end on a “Saturday, Sunday, or a legal holiday.” Memorial Day 2018—a legal holiday—fell on Monday, 28 May. Thus, one could read the Rules to say that the appellee’s last day to respond to the proposed record was actually Tuesday, 29 May 2018. An appellant has 15 days from the date the proposed record is deemed settled to file the record. See N.C. R. App. P. 12(a). If this alternative calculation is correct, then the appellant’s record would appear to have been timely filed on 13 June 2018.
- Certificate of Service. While not mentioned in the opinion, the bottom half of the certificate of service for the appellant’s brief contained a “cc” line listing the name, address, party represented, and bar number of appellee’s counsel. Does such a “cc” line comply with the requirements of Appellate Rules 26 and 28 that a brief identify the persons served?
- The majority opinion appeared concerned that the appellee’s failure to file a brief was an indication that the appellee had not received the appellant’s brief. Even so, appellee’s counsel of record was properly identified in the record on appeal. At the time the appellant’s brief was filed, the standard practice of the clerk of the Court of Appeals was to (1) email to all counsel of record a hyperlink to any brief filed in the appellate court, and (2) mail a copy of the printed brief to all counsel of record.
- This creates three different methods by which the appellee should have received notice that the appellant’s brief had been filed. Is it possible that the appellee simply elected not to file a brief in response? Who should get the benefit of the doubt in that situation?
- Certificate of Compliance. The certificate of compliance stated that the appellant’s brief contained “no more than 1020 words.” This number is well below the 8,750 word-count limit of Appellate Rule 28(j). Briefs often contain diverse certificate of compliance language. Is the precise certificate of compliance wording identified by the majority required to be compliant with Appellate Rule 28(j)(1)?
If no appeal is taken, we may never know the Supreme Court’s answers to these questions. Still I am curious as to your take on this opinion. Let me know your thoughts in the comments below.