Ignoring the Appellate Rules at Your Client's Peril

Saturday, June 2, 2007 | 0

BY Judge Martha Geer

On 7 April 2005, the North Carolina Supreme Court filed Viar v. N.C. Dept. of Transp., 359 N.C. 400, 610 S.E.2d 360 (2005) (per curiam) and--intentionally or unintentionally--dramatically altered the playing field for appeals.

Previously, the Supreme Court had exhibited a tendency to reverse Court of Appeals' dismissals of appeals, suggesting a preference for addressing appeals on the merits despite technical violations of the appellate rules. Viar, however, created uncertainty as to whether that continues to be the philosophy of the Supreme Court.

As exhibited by the majority and dissenting opinions in Stann v. Levine, __ N.C. App. __, 636 S.E.2d 214 (2006), the question as to what the Supreme Court intended in Viar has strongly divided the Court of Appeals. Consistent with the majority in Stann, some Court of Appeals judges view Viar as mandating dismissal of all appeals in which the appellant has violated the appellate rules. Viar involved violations of N.C.R. App. P. 10 (governing assignments of error) and N.C.R. App. P. 28(b)(6) (regarding the substance of the argument section). The dissenting opinion reflects the view of other judges that Viar focused primarily on the fact that the Court of Appeals addressed an issue not encompassed by the appellant's assignments of error or properly raised and argued by the appellant. The critica language in Viar relied upon for support of both viewpoints is:

The Court of Appeals majority asserted that plaintiff's Rules violations did not impede comprehension of the issues on appeal or frustrate the appellate process... It is not the role of the appellate courts, however, to create an appeal for an appellant. As this case illustrates, the rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule.

359 N.C. at 402, 610 S.E.2d at 360. This paper will not address the wealth of opinions debating the meaning of this language (more than 100 opinions have cited Viar), but rather will focus on ways of avoiding dismissal of your appeal based on Viar and its progeny.

Since Viar, at least 42 appeals have been dismissed solely for violations of the appellate rules. More dismissals are likely on the way. This figure does not include dismissals for jurisdictionalproblems arising out of errors in the notice of appeal or dismissals based on the interlocutory nature of the appeal. The violations relied upon for dismissal have ranged from very substantial substantive violations to the most trivial of rules violations. This paper summarizes the most frequent violations that I have seen.

The Seeds for Dismissal

A. An Ounce of Prevention

The single most important step for an attorney doing an appeal is to read the appellate rules. Make sure that you have the most recent version. In recent years, revisions have been made annually. You cannot assume that there will be a "grace period" in which you will be forgiven for failing to comply with an amendment to the rules. Judges have expressed a willingness to dismiss appeals based on violations of an amendment that had been in effect for merely weeks. The most current version of the rules is available on the official website for the courts: www.nccourts.org. The most recent amendments relate to Rule 3 and became effective in May.

When reading the rules, do not forget the appendices to the rules. If you follow the appendices,you should be all right. There is a caveat: the appendices are not necessarily updated when the rules themselves are amended, so you cannot rely exclusively upon the appendices, but rather must also carefully read the applicable rules. Appendix B sets forth more details about formatting and style for documents filed in the appellate courts. It provides information about captions,indexes to the brief, use of the transcript,tables of cases and authorities, topical headings,numbering pages, and the format for your signature and address.

Appendix C sets out the proper arrangement of the record on appeal. The appendix includes suggested record on appeal organization for various types of cases, including civil jury trials, review of agency decisions (such as workers' compensation cases), and criminal trials. You will notice in Stann that one of the complaints of the majority opinion was that the assignments of error were set forth in the wrong place. They should appear at the end of the record on appeal immediately before the listing of the names and addresses of counsel and after any documents relating to the settlement of the record. Not infrequently, attorneys disregard this order and put the assignments of error at the beginning of the record on appeal or some other location where they are difficult to find. Follow the appendix.

Table 4 of Appendix C may be the most useful part of the appendices. It sets out examples of proper assignments of error. As discussed below,inadequate assignments of error have been a major cause of dismissals of appeals or, at least, have been a basis for the Court of Appeals' refusing to address individual issues briefed by the parties. Even if your particular error is not included in the examples, you should be able to find an example that you can use as a model.

Appendix D includes forms for documents regularly used in the appellate courts. There are models for different types of notices of appeal,petitions for discretionary review, petitions for writ of certiorari, and petitions for writ of supersedeas/motion for temporary stay.

Appendix E addresses the content of briefs. It explains the proper organization of the brief, providing examples of what the index (table of contents),table of cases and authorities, and questions presented should look like. It explains what the "statement of the case" and the "statement of the grounds for appellate review" should include and provides a sample statement of the case. It also discusses the statement of the facts, argument, and conclusion sections. PLEASE NOTE: the appendix has not been updated to reflect the need for the standard of review As an additional resource, you may wish to consult the North Carolina Bar Association's website. The Appellate Rules Committee of the NCBA has created a style manual with numerous examples that is of tremendous help in pursuing an appeal. The manual is updated regularly to reflect amendments to the rules. It is accessible regardless whether you are a member of the NCBA:< www.ncbar.org/about/committees/appellate.aspx. At that same site, there are frequently memos regarding recent rule amendments.

B. Rules 9 and 18: The Record on Appeal

Although the rules are fairly clear about the content of the record on appeal, and the order of arrangement that should be followed in compiling the record, attorneys frequently adopt a haphazard approach. Rule 18(c) applies to the composition of a record on appeal in workers' compensation cases.

Be careful that you do not omit any documents that are required to be included in the record on appeal. For example, Rule 18(c)(4) requires that the Form 44 be included. Rule 18(c)(8) includes a catch-all that requires inclusion of all items filed with the Commission "which are necessary to an understanding of all errors assigned unless they appear in the verbatim transcript of proceedings which is being filed pursuant to Rule 9(c)(2) and (3)." You must include your notice of appeal,showing that your appeal is timely, as well as documents showing that the settlement of the record was timely.

Even before Viar, if a record on appeal failed to include a required document, the appeal would usually be dismissed. You cannot simply attach the missing document in an appendix to your brief. If you discover that a document was omitted, you should move to amend the record on appeal to add the document.

C. Rule 10: Assignments of Error

Assignments of error are, without a doubt, the most treacherous area for appellate lawyers. Inadequate assignments of error have been the cause of numerous dismissals. The Appellate Rules Committee of the NCBA has previously urged the Supreme Court to abolish assignments of error with no success. Despite a recent concurring opinion by Judge Wynn also calling for their abolition,Broderick v. Broderick, __ N.C. App. __,__, 623 S.E.2d 806, 807-10 (2006), indications from the Supreme Court are that no changes willbe made.

1. No Assignment of Error/No Service

The scope of review for appellate courts "is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10." N.C.R. App. P. 10(a). In other words, if your argument is not the subject of an assignment of error, you may not make the argument in your brief. If, as you are writing your brief, you discover an argument that you had not thought of before and that does not come within the scope of an existing assignment of error, do not simply include it in the brief and hope that no one notices that no assignment of error matches the argument. It will be noticed. Further, do not rely upon an expansive interpretation of your assignments of error--some judges on the Court of Appeals lean towards narrow readings of the assignments of error.

To prevent problems, think through your assignments of error carefully when you are preparing them. They are important. If you should omit one, you can move to amend the record on appeal to add an assignment of error.

2. How You Write the Assignment of Error Matters--Really Matters

Rule 10(c)(1) is one of the most important rules of all. It specifies the form of assignments of error. It provides: A listing of the assignments of error upon which an appeal is predicated shall be stated at the conclusion of the record on appeal, in short form without argument, and shall be separately numbered. Each assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error assigned. An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references. Questions made as to several issues or findings relating to one ground of recovery or defense may be combined in one assignment of error, if separate record or transcript references are made.

N.C.R. App. 10(c)(1). Follow this rule to the letter. Based upon this rule, each assignment of error (1) must have its own number, (2) should be confined to a single issue of law, (3) must state the specific legal basis upon which you contend there was error, and (4) must be followed by specific record or transcript references.

The leading case on the sufficiency of the assignment of error is Walker v. Walker, __ N.C. App. __, 624 S.E.2d 639 (2005). You should review it carefully since its analysis is being relied upon repeatedly. Walker holds that it is insufficient to simply say that a finding of fact, conclusion of law, or other ruling of a tribunal were "erroneous as a matter of law." Id. at __, 624 S.E.2d at 642. You must specify the particular type of legal error. The Court will reject an assignment of error that only states that some ruling was "contrary to law" because "[s]uch an assignment of error is designed to allow counsel to argue anything and everything they desire in their brief on appeal. This assignment--like a hoopskirt--covers everything and touches nothing." Wetchin v.Ocean Side Corp., 167 N.C. App. 756, 759, 606 S.E.2d 407, 409 (2005) (internal quotation marks omitted).

The following types of assignments of error have all been struck down as insufficient under Rule 10:

The trial court's failure to grant defendants'joint motion for enforcement of settlement agreement.

Whether the Industrial Commission erred in ordering the payment of temporary total disability benefits pursuant to N.C. Gen. Stat.