in the Court of Appeals 13 November 2018.
by plaintiff from order entered 27 February 2018 by Judge
Susan Dotson-Smith in Buncombe County No. 15 CVD 1562
E. Arrowood for plaintiff-appellant.
brief filed for defendant-appellee.
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
Nonjurisdictional Appellate Rules Violations
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.
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).
"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.
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.
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.
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).
Nature of the Appellate Rules Violations in the Instant
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.
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." 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.
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
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). 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).
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 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,