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Ramsey v. Ramsey

Court of Appeals of North Carolina

March 19, 2019


          Heard in the Court of Appeals 13 November 2018.

          Appeal by plaintiff from order entered 27 February 2018 by Judge Susan Dotson-Smith in Buncombe County No. 15 CVD 1562 District Court.

          Mary E. Arrowood for plaintiff-appellant.

          No brief filed for defendant-appellee.

          ZACHARY, JUDGE.

         Plaintiff Gary P. Ramsey appeals from the trial court's order holding him in contempt. However, because our ability to conduct meaningful appellate review has been impaired due to Plaintiff's gross and substantial noncompliance with the North Carolina Rules of Appellate Procedure, we dismiss the appeal.

         I. Nonjurisdictional Appellate Rules Violations

         Included among the North Carolina Rules of Appellate Procedure is a litany of nonjurisdictional requirements that are "designed primarily to keep the appellate process flowing in an orderly manner." Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008). Though not jurisdictional, compliance with these rules is mandatory. Id. at 194, 657 S.E.2d at 362.

         One such directive is Rule 12, which requires the appellant to file the record on appeal within fifteen days after the record has been settled pursuant to Rule 11. N.C. R. App. P. 12(a). Another nonjurisdictional but mandatory requirement is Rule 28(b), which governs the content of an appellant's brief. N.C. R. App. P. 28(b). The function of Rule 28 is to ensure that the parties' briefs "define clearly the issues presented to the reviewing court and to present the arguments and authorities upon which the parties rely in support of their respective positions thereon." N.C. R. App. P. 28(a). Rule 28(b) contains a list of ten rules designed to promote that function. For example, before setting forth his substantive argument, the appellant's brief must first contain a separate statement of the issues presented for review; a statement of the procedural history of the case; and a statement of the grounds for appellate review, including citation to the statute permitting appellate review. N.C. R. App. P. 28(b)(2)-(4). An appellant's brief must also include a section containing "[a] full and complete statement of the facts"-that is, a "summary of all material facts underlying the matter in controversy which are necessary to understand all issues presented for review." N.C. R. App. P. 28(b)(5).

         A "failure of the parties to comply with the[se] rules, and failure of the appellate courts to demand compliance therewith, may impede the administration of justice." Dogwood, 362 N.C. at 193, 657 S.E.2d at 362. Rule 25 therefore allows this Court, on its own initiative, to sanction a party for noncompliance. N.C. R. App. P. 25(b). However, sanctions are only appropriate where the party's noncompliance "rise[s] to the level of a 'substantial failure' or 'gross violation.'" Dogwood, 362 N.C. at 199, 657 S.E.2d at 366. Factors relevant to that determination will include, among others, "whether and to what extent the noncompliance impairs the court's task of review and whether and to what extent review on the merits would frustrate the adversarial process." Id. at 200, 657 S.E.2d at 366-67. "The court may also consider the number of rules violated, although in certain instances noncompliance with a discrete requirement of the rules may constitute a default precluding substantive review." Id. at 200, 657 S.E.2d at 367.

         If it is determined that a party's violation of nonjurisdictional rules does indeed rise to the level of gross or substantial, then Rule 34(b) provides a list of appropriate sanctions that this Court may impose. N.C. R. App. P. 34(b); Dogwood, 362 N.C. at 201, 657 S.E.2d at 367. The list of appropriate sanctions includes dismissal of the appeal, monetary sanctions, and "any other sanction deemed just and proper." N.C. R. App. P. 34(b)(1)-(3).

         In determining which of the Rule 34(b) sanctions to impose, it is well settled that this Court ordinarily "should impose a sanction other than dismissal . . . . This systemic preference not only accords fundamental fairness to litigants but also serves to promote public confidence in the administration of justice in our appellate courts." Dogwood, 362 N.C. at 200, 657 S.E.2d at 366. Ultimately, "the sanction imposed should reflect the gravity of the violation," id., and be well tailored to this Court's discretionary "authority to promote compliance with the appellate rules," id. at 199, 657 S.E.2d at 366, bearing in mind that dismissal is reserved only for the "most egregious instances of nonjurisdictional default." Id. at 200, 657 S.E.2d at 366.

         If after consideration of other sanctions it is nonetheless determined that the party's noncompliance warrants dismissal, this Court "may then consider whether the circumstances of the case justify invoking Rule 2 to reach the merits of the appeal." Id. at 201, 657 S.E.2d at 367. "In this situation, [we] may only review the merits on 'rare occasions' and under 'exceptional circumstances,' 'to prevent manifest injustice to a party, or to expedite decision in the public interest.'" Id. (quoting State v. Hart, 361 N.C. 309, 316, 644 S.E.2d 201, 205 (2007) and N.C. R. App. P. 2). The decision whether to invoke Rule 2 is within the discretion of this Court. Selwyn Vill. Homeowners Ass'n. v. Cline & Co., 186 N.C.App. 645, 650, 651 S.E.2d 909, 912 (2007).

         II. Nature of the Appellate Rules Violations in the Instant Case

         Plaintiff's appeal in the instant case violates at least seven mandatory rules of the North Carolina Rules of Appellate Procedure: Rules 28(b)(2), 28(b)(3), 28(b)(4), 28(b)(5), 28(b)(6), 28(b)(9), and 28(j)(2). Particularly concerning is that Plaintiff's brief contains no Statement of the Facts, as required by Rule 28(b)(5). Plaintiff's brief instead begins immediately with his Argument, providing this Court with no context from which to understand his scattered references to the various errors alleged therein. Cf. Pers. Earth Movers, Inc. v. Thomas, 182 N.C.App. 329, 330, 641 S.E.2d 751, 752 (2007) ("[D]efendant's account of the facts is exactly one paragraph with eighteen lines. Additionally, the facts are at best vague[] [and] fail to set forth the material facts necessary to adequately understand the questions presented for appellate review . . . ."). Nor is there a Statement of the Case as required by Rule 28(b)(3). Even after having fully read Plaintiff's brief, this Court is left entirely unaware of the procedural posture from which the appeal resulted.

         Furthermore, wholly absent from Plaintiff's brief is a Statement of the Grounds for Appellate Review, with accompanying citation of the supporting statutory authority, as required by Rule 28(b)(4). Plaintiff's brief also violates Rule 28(b)(6), which requires that his "argument shall contain a concise statement of the applicable standard(s) of review for each issue, which shall appear either at the beginning of the discussion of each issue or under a separate heading placed before the beginning of the discussion of all the issues." N.C. R. App. P. 28(b)(6). Here, Plaintiff only includes the standard of review at the beginning of the second of his three argument sections. Even then, Plaintiff merely provides that "The standard of review is whether or not there is competent evidence to support findings of fact and whether the findings are supported by conclusions of law."[1] The first and third argument sections do not reference a governing standard of review until the final sentences wherein, again, Plaintiff simply proclaims in conclusion that "The standard of review is whether or not there was an abuse of discretion by the trial court." Moreover, in blatant violation of Rule 28(b)(6), none of Plaintiff's three arguments contain any citation of authority verifying that his proffered standard of review is, in fact, correct.

         We also briefly address other more minor errors contained in Plaintiff's brief, although they do not hinder our ultimate review of the merits as do those errors mentioned above.

         First, Plaintiff's brief does not contain a statement of the issues presented for review, in violation of Rule 28(b)(2). Next, the Certificate of Service attached to Plaintiff's brief simply provides that it was served "upon all parties to this cause," rather than specifically identifying "the names of the persons served," as required by Rules 26(d) and 28(b)(9).[2] N.C. R. App. P. 26(d); N.C. R. App. P. 28(b)(9). Though seemingly negligible, this violation is concerning in that no appellee brief was filed in the instant case. See Dogwood, 362 N.C. at 199-200, 657 S.E.2d at 366 (explaining that the Court's "exercise of remedial discretion under Rules 25 and 34 entails a fact-specific inquiry into the particular circumstances of each case"). Also minor, yet indicative of his overall noncompliance with the Appellate Rules, is Plaintiff's Certificate of Compliance, which declares the precise number of words contained in his brief, instead of the statement required by Rule 28(j)(2) that it "contains no more than [8, 750] words." N.C. R. App. P. 28(j), (j)(2).

         Finally, we note that the record leaves some doubt as to whether Plaintiff timely filed the Record on Appeal. The deadline for filing the record with this Court is triggered by the settlement of the record, which may occur in several ways. Where, as here, there is no transcript of the trial court's proceedings[3] and the parties do not settle the record by agreement, the appellant must, within thirty-five days after filing notice of appeal, "serve upon all other parties a proposed record on appeal constituted in accordance with the provisions of Rule 9." N.C. R. App. P. 11(b). An appellee who is served by mail shall then have thirty-three days to "serve upon all other parties a notice of approval of the proposed record on appeal, or objections, amendments, or a proposed alternative record on appeal in accordance with Rule 11(c)." N.C. R. App. P. 11(b); N.C. R. App. P. 27(b). If the appellee fails to do so, the ...

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