Appeals panel again splits 2-1 in followup to Hart decision

The Court of Appeals chose sanctions over dismissal for appellate rule violations in a June 19 ruling by the same panel that delivered a 2-1 split on the same issue two weeks earlier.

In Peverall v. County of Alamance (North Carolina Lawyers Weekly No. 07-07-0740, 16 pages), the appellant did not state the standard of review as required by Rule 28(b)(6) of the Rules of Appellate Procedure, the panel said.

The appellant also incorrectly referenced the record in the assignments of error and in the brief, violating Rules 28(b)(6) and 10(c)(1).

As it did in a June 5 opinion, McKinley Bldg. Corp. v. Alvis (North Carolina Lawyers Weekly No. 07-07-0700, 23 pages), the majority held that the rule violations were “not so egregious as to warrant dismissal.” The court ordered the appellant to pay printing costs under Rule 34(b) and went on to review the appeal on its merits.

The panel’s split in Peverall mirrored McKinley. Judge Barbara A. Jackson, again, wrote the majority opinion, and Judge Robert C. Hunter concurred. Judge John M. Tyson issued another dissenting opinion in favor of dismissal.

Tyson also wrote the majority opinion on June 5 in Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co. (North Carolina Lawyers Weekly No. 07-07-0688, 14 pages), which dismissed an appeal for rule violations. Hunter wrote the dissenting opinion in Dogwood.

The trio of split decisions comes on the heels of the Supreme Court’s unanimous May 4 ruling in State v. Hart (North Carolina Lawyers Weekly No. 07-06-0576, 14 pages), which was intended to correct a “misapplication” of its holding in Viar v. N.C. Dept. of Transportation, 359 N.C. 400 (2005).

In Hart, the Supreme Court said Viar did not imply that “all rule violations mandate automatic dismissal.” Sanctions under other rules, such as Rules 25 and 34, could be more appropriate in certain cases.

The Supreme Court also said that Viar did not mean that the Court of Appeals could “no longer apply Rule 2 at all,” referring to the rule that allows an appellate court to “suspend” the appellate rules and review a case on its merits.

Sean Andrussier, a member of the appellate practice group of Womble Carlyle Sandridge & Rice, said the three decisions may mean the Supreme Court will likely be called upon to reconcile Rules 2, 25 and 34 in the future.

“Specifically, the Supreme Court may have to decide whether the levying of a sanction less severe than dismissal truly constitutes the ‘suspension’ of the rule in question,” Andrussier said.

“If the rule is being enforced with a sanction pursuant to Rules 25 and 34, it seems difficult to contend that the court is ‘suspending’ that rule.”

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