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Is Dogwood’s Bark Losing Its Bite?

Back in March, the Court of Appeals in Ramsey v. Ramsey dismissed a party’s appeal for cumulative non-jurisdictional violations that the Court described as “gross and substantial noncompliance with the North Carolina Rules of Appellate Procedure.” (See prior posts on Ramsey here and here.)  On Tuesday, in K2HN Construction, NC, LLC v. Five D Contractors, Inc., the Court dismissed another appeal that had a tortured relationship with the State’s appellate rules.  However, unlike the dismissal of the appeal in Ramsey, which was torpedoed by the sheer number of violations, the death knell for K2HN was “noncompliance with a discrete requirement of the rules that constitutes a default precluding substantive review.”

The appeal at issue, challenging the grant of summary judgment in the trial court, was fraught with appellate rule noncompliance.  The Court listed the following non-jurisdictional violations by the appellant:

  • Failing to timely serve the proposed record on appeal (Rule 11(b))
  • Failing to timely file the record on appeal after settlement of the record (Rule 12(a))
  • Failing to timely post an appeal bond (Rule 6(c))
  • Failing to timely pay the docketing fee (Rule 12(b))
  • Failing to timely file the principal brief (Rule 13(a)(1))
  • Failing to timely serve the principal brief  (Rule 13(a)(1) and 26(b))
  • Failing to take timely action pursuant to an order of the Court (Rule 25(a))

These violations were brought to the Court’s attention by two separate motions to dismiss filed by appellees.  However, the Court did not rule explicitly on whether these violations alone gave rise to “a substantial failure or gross violation warranting dismissal,” and instead “presume[ed], arguendo,” that they did not.  And that was because the Court’s own independent review revealed such a significant additional violation of Rule 28(b)(6) in appellant’s brief that the Court “deem[ed] each argument presented to be abandoned.”

Rule 28(b)(6) requires that the appellant’s brief include “[a]n argument, to contain the contentions of the appellant with respect to each issue presented.”  It mandates that “[t]he body of the argument…shall contain citations of the authorities upon which the appellant relies.”  The rule specifically states that “[i]ssues…in support of which no reason or argument is stated, will be taken as abandoned.”

The K2HN Court held that every argument in the appellant’s brief violated Rule 28(b)(6).  Certain arguments that genuine issues of material fact existed justifying denial of summary judgment on specific causes of action were devoid of authority as to the elements of the causes of action or how the evidence demonstrated the existence of material facts.  Certain arguments on other causes of action cited the necessary elements, but then consisted of conclusory sentences failing to apply any legal authority or explaining how the lower court’s order was inconsistent with the law.  Appellant’s final argument, relating to witness credibility and potentially forged documents, did not make any connection between the potential forgeries and any issues of material fact.  In addressing this final argument, the Court noted that although the Court on its own could identify some potential arguments that “could have been made,” the appellant did not actually make those arguments and “it is not the role of this Court to create an appeal for an appellant or to supplement an appellant’s brief with legal authority or arguments not contained therein.”  (Contrast this with the grace given to an appellee, such as statements in the since-withdrawn opinion in State v. Ellis in which the Court effectively stated that it had a duty to create an appeal for an appellee.)

The end result of the appellant’s “failure to present appropriate argument supported with citations to authority and the record consistent with Rule 28(b)(6)” was dismissal of the appeal.  The Court held that this specific failure impaired the Court’s review and frustrated the adversarial process, “as any review on the merits would require this Court to construct and decide arguments that [appellant] had not adequately presented and to which [the appellees’] have not had an opportunity to respond.”

Interestingly, although in the opinion the Court twice assumed, “arguendo,” for the purposes of its decision that the violations pointed out in the appellees’ motion to dismiss did not warrant dismissal on their own, and made fairly clear that the basis for the dismissal was the Rule 28(b)(6) violations raised by the Court sua sponte, the Court ultimately allowed appellees’ motion to dismiss “for the violations identified therein and the other violations identified by the Court.”

With this dismissal following on the heels of Ramsey, is the pendulum swinging back to where it was pre-Dogwood?  While maybe not there yet, it certainly seems like the Court of Appeals’ willingness to overlook rules violations might be waning.

–Patrick Kane

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