A recent case from the North Carolina Court of Appeals, Ramsey v. Ramsey, published Feb. 5, 2019 (No. COA18-600) not only serves as a cautionary tale for practitioners but may also lead to important guidance from North Carolina’s appellate courts regarding the dismissal of appeals. In short, Judge Zachary, writing for the majority, dismissed the appeal for myriad gross violations of the Rules of Appellate Procedure. What separates this case from the other progeny of Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 657 S.E.2d 361 (2008) is that Judge Dillon issued a thought-provoking dissent, which now serves as a basis for the plaintiff-appellant’s motion for a hearing en banc. While this case may raise many questions while providing few concrete answers, it is worthy of review and continued observation for several reasons.
Ramsey involves an appeal of a civil contempt order in a family law proceeding. The majority dismissed the appeal for numerous rules violations. This opinion certainly provides a roadmap of problems to avoid. The appellant made the following errors:
Omission of any Statement of Facts or Statement of the Case;
Lack of a Statement of the Grounds for Appellate Review or any citation of authority for the (seemingly interlocutory) appeal being heard;
No Statement of Issues;
Deficient Certificate of Service and Certificate of Compliance; and
“Finally, but certainly not least, Plaintiff did not timely file the record on appeal.”
The Ramsey court had no problem finding, in light of these repeated and significant problems, that sanctions were appropriate. Under these facts, the majority’s decision to dismiss the appeal was no surprise. The court emphasized that the rules violations were not merely technical; rather, those failures left the Court “dumbfounded as to the pertinent facts and issues” before it.
In considering dismissal of appeals for such violations, that rationale certainly seems logical. Minor or singular non-jurisdictional failures may warrant relatively minor sanctions; however, when appellate review is compromised, dismissal is on the table. From the perspective of this author, if all of the precedent related to Dogwood was baked down to that principle, it would be a fair result. Of course, as many prior articles have noted, that body of law is not so simple, but at least that notion may be a decent guidepost.
So, nothing really to see here, right? That sentiment would be true if this decision had been unanimous. Of course, it was not. Judge Dillon’s dissent focused a mere two paragraphs on the rules violations. Under his view, those problems did not “prevent us from our ability to understand Husband’s appeal.” In support of that notion, Judge Dillon wrote a direct and logical decision on the merits. Under Judge Dillon’s reasoning, this case involved an improper application of civil contempt, and the dissent explained its rationale for reversal as to two of the three core issues before the Court. While Judge Dillon did not delve deeply into underlying facts, he did articulate his reasoning in a clear and succinct manner.
Reading between the lines, the dissent seemed to feel that it could correct some important errors, in spite of the less-than-ideal presentation of those issues. In this type of situation, reasoned Judge Dillon, why would an appellate court let those mistakes stand? If the role of the Court of Appeals is to correct errors, when it can do so, perhaps it should, even if there are mistakes along the way. Had the dissent felt that the issues before it were immaterial to North Carolina jurisprudence, perhaps this decision would have been unanimous.
In an interesting development, the appellant moved for the Court of Appeals to hear this matter en banc, pursuant to Rule 31.1(d) of the North Carolina Rules of Appellate Procedure. In so doing, the appellant admitted that “[t]echnical violations did occur” but downplayed the extent thereof. The motion referenced Dogwood repeatedly and argued that the entire Court of Appeals should weigh in here to “secure or maintain uniformity” of that doctrine. Should the Court of Appeals agree to do so, its new opinion would vacate the existing holding and could potentially provide more guidance about our appellate courts’ treatment of technical violations of the Rules of Appellate Procedure.
Should the Supreme Court get the opportunity to review this case, it may sanction one of the approaches taken at the Court of Appeals. Such a decision will be an important development in Dogwood and its progeny. At least for now, perhaps the lesson from Ramsey is that even the most obvious case for dismissal may not be so obvious to at least some members of our appellate courts, especially if the panel is intrigued by the underlying issues.
Jon Ward is a trial and appellate lawyer and partner at Pinto Coates Kyre & Bowers, PLLC in Greensboro, NC. He handles personal injury, insurance coverage/bad faith, construction, commercial, malpractice, and various other types of cases.
https://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Appellatehttps://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngAppellate2019-03-06 15:11:262019-03-06 15:11:26Substantial Confusion? The Lessons From Ramsey v. Ramsey