Civil litigators handling appeals: Beware. For the second time in less than a month, the North Carolina Court of Appeals dismissed an entire appeal due to an appellant’s failure to comply with the North Carolina Rules of Appellate Procedure. In WBTV v. Ashe County (4 Dec 2018, Dietz, J., unpublished), the Court of Appeals found substantial rules violations by a represented party, and it dismissed plaintiff’s interlocutory appeal without ever reaching the merits.

In WBTV, the appellant’s brief omitted the required Statement of the Grounds for Appellate Review, a particularly troublesome procedural error because the appeal happened to be interlocutory. According to the Court, the appeal could have proceeded if the appellant had complied with the appellate rules and properly explained to the Court how the appeal affected a substantial right as required by N.C. R. App. P. 28(b)(4). However, because the appellant failed to do so, the Court held it had no choice but to dismiss.

The opinion not-so-subtly reveals the Court’s distaste for doling out such harsh penalties for rules violations. Its author, Judge Dietz, even suggests alternative steps the appellant could have taken to remedy the procedural mistake (i.e. filing a writ of certiorari, which would have allowed the Court at least to reach the merits of the appeal.) At the end of the day, though, the Court held it is bound to apply the appellate rules as written, even if the outcome is so extreme.

Interestingly, this case marks the second time in less than a month that the Court of Appeals strictly interpreted the appellate rules. Last month the Court published Bradley v. Cumberland Co., (20 Nov 2018, Zachary, J.), which dealt with incorrect service of the Notice of Appeal. While on their face, the issues in the two cases may appear different, they share common denominator: dismissal of the appeal due to appellate rules violations.

Is this a troublesome trend or a mere coincidence? Either way, for attorneys representing parties on appeal, it’s looking like now would be a good time to dust off the appellate rule book.

Tara Muller is a Superior Court mediator and N.C. appellate attorney focused on serving as consultant and outside counsel for litigators who outsource. She can be reached at www.mullerlawfirm.com, or (919) 526-0001.

January 8, 2019/by Litigation