Peverall v. County of Alamance

TYSON, Judge,

dissenting.

For the reasons stated in Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 183 N.C. App. —, - S.E.2d — (2007) and in the dissenting opinion in McKinley Bldg. Corp. v. Alvis, 183 N.C. App. — S.E.2d -(2007), I agree with defendant’s argument to dismiss plaintiff’s appeal for multiple rules violations of and his failure to comply with the North Carolina Rules of Appellate Procedure after notice. I respectfully dissent.

I. Appellate Rule Violations

The majority’s opinion correctly states plaintiff violated Rule 28(b)(6) and Rule 10(c) of the North Carolina Rules of Appellate Procedure. Defendant identified and argued plaintiff’s appeal should be dismissed for multiple appellate rule violations in his brief. Plaintiff failed to respond to defendant’s arguments or to take any further action to explain or remedy these violations.

“The North Carolina Rules of Appellate Procedure are mandatory and ‘failure to follow these rules will subject an appeal to dismissal.’ ” Viar v. N.C. DOT, 359 N.C. 400, 401 , 610 S.E.2d 360, 360 (2005) (quoting Steingress v. Steingress, 350 N.C. 64, 65 , 511 S.E.2d *98 298, 299 (1999)). I find merit in defendant’s argument that plaintiff’s appeal should be dismissed. See Dogwood Dev. & Mgmt. Co., LLC, 183 N.C. App. at —, — S.E.2d at — (Dismissing defendant’s appeal for violation of Appellate Rules 28(b) and 10(c)).

In Stann v. Levine, this Court dismissed the appeal in part because the appellant failed to state an applicable standard of review. 180 N.C. App. 1, 5 , 636 S.E.2d 214, 216 (2006). Also, in State v. Summers, this Court dismissed one of the appellant’s arguments because of his failure to include a statement of the applicable standard of review. 177 N.C. App. 691, 700 , 629 S.E.2d 902, 908 , appeal dismissed and disc. rev. denied, 360 N.C. 653 , 637 S.E.2d 192 (2006). Plaintiff’s failure to adequately state the applicable standard of review for the question presented violates Appellate Rule 28(b)(6) and warrants dismissal of his appeal.

II. Appellate Rule 2

When it is apparent that a party has violated the Rules of Appellate Procedure, we must determine what sanction, if any, is appropriate and whether to apply Rule 2 of the North Carolina Rules of Appellate Procedure to overlook the appellant’s appellate rule violations and review the merits of their appeal. State v. Hart, 361 N.C. 309 , -, - S.E.2d -, -(2007). I would decline to do so.

Nothing in the record or briefs demonstrates the need to disregard plaintiff’s rule violations “[t]o prevent manifest injustice” or “to expedite decision in the public interest.” N.C.R. App. P. 2 (2007). Unlike in Hart , this is a civil case and plaintiff’s appeal contains multiple violations, not a single violation. 361 N.C. at 316 , - S.E.2d at -(“Although this Court has exercised Rule 2 in civil cases . . . the Court has done so more frequently in the criminal context when severe punishments were imposed.”). “[T]he Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule.” Viar, 359 N.C. at 402 , 610 S.E.2d at 361 . Also here, unlike in Hart , defendant identified the violations, argues for dismissal, and this Court would not be dismissing ex mero moto. Id. Plaintiff took no action, after notice of the violations, to remedy the defects.

III. Conclusion

Plaintiff failed to make any showing, and the record does not indicate any reasons, to invoke this Court’s discretionary exercise *99 under Appellate Rule 2. In the exercise of our discretion, we should not disregard plaintiffs multiple and egregious violations of the appellate rules and invoke Appellate Rule 2 under the circumstances at bar. Dogwood Dev. & Mgmt. Co., LLC, 183 N.C. App. at —, — S.E.2d at -. I respectfully dissent.