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After Further Review, the Ruling on the Field Stands

Last month, Beth blogged about an opinion from the Court of Appeals dismissing an appeal for eight appellate rules violations. This month, the Court withdrew its opinion, issued a new opinion finding seven-ish appellate rules violations, and dismissed the appeal again.

Appeal dismissed. Opinion withdrawn. Appeal dismissed, again.

The returning case is Ramsey v. Ramsey, a family law case involving a contempt order. Beth had noted that certain of the eight errors identified by Judge Zachary—including compliance with the deadline to file the record on appeal—may not have been rules violations. After the initial opinion was issued by the Court of Appeals, the appellant filed a motion for en banc rehearing. Appellant disputed whether the appellate rules really were violated, and also disputed whether any rules violations had hindered the court’s review of the merits.

Appellant’s motion did not trigger en banc rehearing (so far, a mythical animal). It did, however, prompt the Court of Appeals to withdraw its prior opinion and issue a new opinion.

As last time, Judge Zachary wrote the majority opinion, dismissing the appeal. (Judge Dillon again dissented and would have reached the merits.) The amended decision now separates out the rules violations that hindered appellate review of the merits, and the other “minor” violations that did not. The major rules violations were the appellant’s failure to include three things: a statement of facts, a statement of grounds for appellate review, and the standard of review.

Also new in the amended opinion, the majority takes a deep dive into whether the appellant really did timely file the record on appeal. Last time, the majority stated that the record was “not timely,” with a footnote about some of the deadlines. This time, the court expanded its discussion to four full paragraphs, concluding that there is “some doubt” about the timeliness of the filing. For the majority, the issue was that the record would be timely filed only if—going back several links in the chain—the appellant had served the proposed record on the appellee through mail. Here, appellant’s record stated that to be the case. But the rub for the majority was that this statement was not a proper certificate of service signed by the appellant’s attorney. Thus, Judge Zachary found this failure to itself be an additional rules violation. These errors, combined with others noted in our previous post, led the majority to dismiss the appeal.

It’s hard to know if we’ve reached the end of the road on Ramsey. Last time, given the amount in controversy, we figured we wouldn’t be hearing about this case again. But it’s back, and there’s a dissent, so there’s time left for an instant replay at the Supreme Court.

–Troy Shelton

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2 Responses to "After Further Review, the Ruling on the Field Stands"

  • Beth Scherer
    March 19, 2019 - 4:39 pm Reply

    The majority cites to Appellate Rule 26 as requiring a proposed record to be accompanied by a certificate of service. Technically, that Rule only applies to documents “filed” with a court. N.C. R. App. P. 26 (“Papers presented for filing shall contain an acknowledgement of service by the person served or proof of service in the form of a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. Proof of service shall appear on or be affixed to the papers filed.”)).

    Proposed records are not filed–only served. No doubt certificates of service for proposed records are the best practice. But are they strictly required by the Appellate Rules? Until today, I would have said it seemed doubtful. Indeed, I’ve seen many attorneys send a proposed record with only a covering letter. I’ve seen a similar practice as to objections and amendments. Until we see whether the Supreme Court weighs in, people should start following best practices.

  • Michelle
    March 21, 2019 - 3:46 pm Reply

    Is the record on appeal deemed filed on the date of the certificate of settlement (the day it is mailed to the COA & other parties) or the date the COA receives it and stamps w/date on the cover of the ROA?

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