Dismissals Continue Over Missing Certificate Of Service |

Michael Dayton, Editor//April 23, 2007//

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The Appeals Court has dismissed yet another case for an alleged defect in the certificate of service.
The April 17 decision in Blevins d/b/a Rainbow Recycling v. Town Of West Jefferson (North Carolina Lawyers Weekly No. 07-07-0490, 13 pages) illustrates a split over how strictly the rules of appellate procedure should be applied.
The case also continues an ongoing debate as to whether a 1993 case that allowed parties to waive a service defect has been overruled by subsequent decisions.
The underlying appeal in Blevins involved a zoning dispute regarding a recycling business, with the business owner appealing an unfavorable trial court ruling.
In July 2006, the town and the board of adjustment filed a stipulated record on appeal. The problems, according to the appeals panel:

Missing notice of appeal, no date stamp. The record on appeal did not contain a filed notice of appeal from the Superior Court.
“The record on appeal only contains an unfiled ‘notice of appeal’ to this court from the Town of West Jefferson Board of Adjustment,” Judge John Tyson wrote.
Nor did the purported notice of appeal indicate it had been filed with or stamped by the Ashe County Superior Court clerk.

No certificate of service. The record on appeal did not include a certificate of service that showed the notice of appeal had been served on the business owner.
Rules Violations
The court said those defects were in apparent violation of several appellate rules:

Rule 9 requires that the record on appeal in civil actions contain a copy of a filed notice of appeal.

Appellate Rule 3 requires that parties file a notice of appeal with the clerk of Superior Court and then serve copies on the other parties.
“Appellate Rule 3 is jurisdictional and if not complied with the appeal must be dismissed,” the court said.

Under appellate Rule 26(b), a party appealing a trial court ruling must serve a notice of appeal on “all other parties.” That notice must be filed with the Appeals Court. In addition, proof that the notice was duly served, such as a certificate of service, must also be filed pursuant to Rule 26(d).
At least one case has held that the failure to file a certificate of service was a defect that could be waived.
A 1993 Supreme Court decision, Hale v. Afro-American Arts Int’l, 110 N.C. App. 621, 430 S.E.2d 457, rev’d per curiam, held “a party upon whom service of notice of appeal is required may waive the failure of service by not raising the issue by motion or otherwise and by participating without objection in the appeal.”
The dissent adopted by the Hale court also held that “the failure to include the proof of service in the record is inconsequential” where one party waived service.
But Hale has apparently been superseded by recent cases that have drawn an ever tighter line on appellate rule violations.
The 2006 case of Ribble v. Ribble, 637 S.E.2d 239, dismissed an appeal that lacked the certificate of service. Ribble varied from Blevins in one significant respect: the appellee in Ribble did not waive service because she did not file a brief, and thus did not participate in the appeal.
Ribble suggested Hale had been implicitly overruled by two later opinions from the Supreme Court — and also suggested that a failure to include the certificate of service was no longer an inconsequential, and waivable, rules violation

In Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 610 S.E.2d 360, reh’g denied, 359 N.C. 643, 617 S.E.2d 662 (2005), the court held that held that “the North Carolina Rules of Appellate Procedure are mandatory and failure to follow these rules will subject an appeal to dismissal.”

In Munn v. N.C. State Univ., 360 N.C. 353, 626 S.E.2d 270 (2006), the dissent adopted by the Supreme Court held a dismissal for rule violations was warranted “even though such violations neither impede our comprehension of the issues nor frustrate the appellate process.”
The Ribble holding was followed in a March 6 case, In The Matter of C.T. and B.T. (North Carolina Lawyers Weekly No. 07-07-0323, 5 pages), where an appeals panel dismissed over the failure to include a certificate of service. That panel said the appellee, like the one in Ribble, had not waived service.
The Blevins panel said it was bound by those precedents until the Supreme Court overturned them.
Dissent
Dissenting, Judge Martha Geer said the waiver holding from Hale was still good law.
“To the extent that the majority argues that Ribble and C.T. hold that Viar … overruled Hale, any such discussion is at most dicta and not controlling in this case in which the appellee has waived any issue regarding the certificate of service,” she said.
“Moreover, Viar does not specifically address the issue at hand. Hale is directly on point. I am not comfortable broadly assuming that the Supreme Court has sub silentio overruled its own prior decisions — or in construing as controlling authority mere dicta suggesting such a possibility.”
Appellate Blog
In an appellate law blog on Womble Carlyle’s Web site, Raleigh lawyer Sean Andrussier offered this assessment of the Blevins decision: “It doesn’t matter if the appellee stipulates to the record on appeal, never raises an issue about service of the notice of appeal, and files an appellate brief addressing the merits of the appeal,” he wrote.
“[T]he Court of Appeals may raise this issue itself and dismiss the appeal. And as Ribble shows, even if the appellant includes in the record on appeal a signed document stating that all papers in the record on appeal (including the notice of appeal) were timely filed and served, the Court of Appeals may still dismiss the appeal.
“The bottom line: include in the record on appeal the certificate of service for the notice of appeal,” Andrussier wrote.
Second Case
A second opinion handed down last week, In Re: A.C. (North Carolina Lawyers Weekly No. 07-07-0500, 4 pages), also dismissed an appeal over a missing certificate of service. However, that case was more in line with Ribble because the appellee “did not waive respondent’s failure to include proof of service of his notice of appeal by filing its motion to dismiss prior to participating in the appeal without objection.”
— Questions or comments may be directed to [email protected].