Opinion
No. COA05-1269.
Filed November 7, 2006.
Appeal and Error — numerous appellate rules violations — appeal dismissed
Plaintiff South Carolina resident's appeal from the dismissal of his lawsuit for alienation of affection and criminal conversation against a Tennessee resident based on lack of personal jurisdiction is dismissed, because plaintiff committed numerous violations of the Rules of Appellate Procedure including: (1) the line spacing in plaintiff's brief violated N.C. R. App. P. 26(g) which provides that the body of the text shall be presented with double spacing between each line of text and no more than 27 lines of double-spaced text per page, whereas plaintiff's brief contains pages with as many as 35 lines of text; (2) plaintiff's brief failed to include a statement of the grounds for appellate review as required by N.C. R. App. P. 28(b)(4) when plaintiff failed to provide either the statement of grounds for appellate review or citation of any statute permitting such review; (3) plaintiff's brief failed to contain a concise statement of the applicable standards of review for each question presented as well as any citation of authorities supporting such a standard of review as required by N.C. R. App. P. 28(b)(6); (4) although plaintiff half-heartedly attempted to comply with N.C. R. App. P. 28(b)(5) by providing sporadic record and transcript citations in the first few pages of his statement of facts, there were no citations to the record or transcripts in excess of a page and a half of his brief; and (5) plaintiff failed to state the specific legal basis for his sole assignment of error as required by N.C. R. App. P. 10(c), and his statement that the trial court erred by dismissing the complaint on jurisdictional grounds was fatally overbroad, vague, and unspecific. It was unnecessary to invoke N.C. R. App. P. 2 to prevent manifest injustice to a party or to expedite decision in the public interest.
Judge GEER dissenting.
Appeal by plaintiff from judgment entered 5 July 2005 by Judge Laura J. Bridges in Rutherford County Superior Court. Heard in the Court of Appeals 19 April 2006.
Lloyd T. Kelso for plaintiff-appellant. Yelton, Farfour, McCartney, Lutz Craig, P.A., by Leslie A. Farfour, Jr., for defendant-appellee.
Frederick R. Stann ("plaintiff") appeals from the dismissal for lack of personal jurisdiction of his lawsuit against Jeffrey Marc Levine ("defendant") arising out of defendant's relationship with plaintiff's wife, Allison Black Stann ("Stann"). This appeal addresses whether a North Carolina superior court has personal jurisdiction to hear a South Carolina resident's claims for alienation of affection and criminal conversation brought against a Tennessee resident. We dismiss this appeal pursuant to the North Carolina Rules of Appellate Procedure.
Plaintiff and Stann married on 3 November 1991. Although they lived in Gastonia, North Carolina for the first several years of their marriage, they moved to Sharon, South Carolina in 1996, where they lived on a horse farm until their separation in September 2003. During that time, plaintiff practiced law in Gastonia, North Carolina, with Stann working as a paralegal in the same office. Plaintiff and Stann both were issued South Carolina driver's licenses and displayed South Carolina license plates on their vehicles. Evidence tended to show plaintiff and Stann paid taxes in both North and South Carolina. Plaintiff and Stann separated on 17 September 2003.
Two months earlier, in July 2003, Stann began corresponding with defendant, a resident of Tennessee who also was married, in connection with a fictional story they were writing as part of their participation in the Single Action Shooting Society. The volume of their correspondence increased over time, with the two communicating by telephone, e-mail, and instant messaging. Ultimately, Stann and defendant began to discuss love and marriage. Some of the e-mails and telephone calls were received by Stann from defendant in North Carolina, although many were received in South Carolina. Stann and defendant did not meet in person until 27 September 2003. Subsequently, defendant and Stann engaged in numerous sexual encounters in several different states, including North Carolina.
After her separation from plaintiff, Stann first moved in with her family in Sharon, South Carolina, but in March 2004, she moved to Salisbury, North Carolina where she lives and works. Plaintiff claims that he began living in Gastonia, North Carolina in November 2003, although the record also contains evidence tending to show he maintains his residence in South Carolina at the horse farm.
On 11 June 2004, plaintiff filed a complaint against defendant, alleging alienation of affection, criminal conversation, and negligent and intentional infliction of emotional distress. On 23 August 2004, defendant filed a motion to dismiss pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure for lack of personal jurisdiction, asserting that at all pertinent times plaintiff was a resident of South Carolina and defendant was a resident of Tennessee. Affidavits from plaintiff, defendant, and Stann were filed in May and June 2005. Plaintiff also filed numerous exhibits containing e-mails between defendant and Stann prior to her separation from plaintiff, as well as telephone company bills listing Stann's calls around the time of separation. On 5 July 2005, the trial court granted defendant's motion to dismiss for lack of personal and subject matter jurisdiction. Plaintiff filed a timely appeal to this Court.
It is well-established that "[t]he North Carolina Rules of Appellate Procedure are mandatory and `failure to follow these rules will subject an appeal to dismissal.'" Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)), reh'g denied, 359 N.C. 643, 617 S.E.2d 662 (2005); see also Munn v. N.C. State Univ., 360 N.C. 353, 626 S.E.2d 270 (2006), rev'g per curiam for reasons stated in 173 N.C. App. 144, 150, 617 S.E.2d 335, 339 (2005) (Jackson, J., dissenting). In Viar, the Supreme Court observed that "[t]he majority opinion in the Court of Appeals, recognizing the flawed content of plaintiff's appeal, applied Rule 2 of the Rules of Appellate Procedure to suspend the Rules. . . . The Court of Appeals majority asserted that plaintiff's rules violations did not impede comprehension of the issues on appeal or frustrate the appellate process." Viar, 359 N.C. at 402, 610 S.E.2d at 361. In reversing this Court, our Supreme Court stated that "[i]t is not the role of the appellate courts . . . to create an appeal for an appellant," and that if violations of the Rules of Appellate Procedure are overlooked by invoking Rule 2, "the Rules become meaningless." Id. Accordingly, "this Court may not review an appeal that violates the Rules of Appellate Procedure even though such violations neither impede our comprehension of the issues nor frustrate the appellate process." State v. Buchanan, 170 N.C. App. 692, 695, 613 S.E.2d 356, 357 (2005).
In the case sub judice, plaintiff's violations are substantial. Specifically, plaintiff commits seven violations pursuant to five separate Rules of Appellate Procedure. Each rule plaintiff violates is explicitly and clearly stated in the Rules of Appellate Procedure. First, the line spacing in plaintiff's brief violates Rule 26(g), which provides that "[t]he body of text shall be presented with double spacing between each line of text." N.C. R. App. P. 26(g) (2006). The rule reiterates the importance of line spacing with its additional requirement that "[n]o more than 27 lines of double-spaced text may appear on a page." Id. Plaintiff's brief, on the other hand, contains pages with as many as thirty-five lines of text.
Presuming such formatting errors may not require dismissal of the appeal, plaintiff's brief contains more significant rules violations. First, plaintiffs brief fails to include a statement of the grounds for appellate review. See N.C. R. App. P. 28(b)(4) (2006). "Such statement shall include citation of the statute or statutes permitting appellate review." Id. Plaintiff failed to provide either the statement of grounds for appellate review or citation of any statute permitting such review. See, e.g., Hill v. West, 177 N.C. App. 132, 133-34, 627 S.E.2d 662, 664 (2006) (dismissing the appeal because the appellant failed to include a statement of grounds for appellate review and no final determination of the parties' rights had been made pursuant to North Carolina General Statutes, section 1A-1, Rule 54). Furthermore, plaintiff's argument fails to "contain a concise statement of the applicable standard(s) of review for each question presented" as well as any citation of authorities supporting such a standard of review. N.C. R. App. P. 28(b)(6) (2006); see, e.g., State v. Summers, 177 N.C. App. 691, 699, 629 S.E.2d 902, 908 (declining to address one of the appellant's arguments when he failed to include a statement of the applicable standard of review), appeal dismissed and disc. rev. denied, 360 N.C. 653, 637 S.E.2d 192 (2006).
Plaintiff's statement of the facts also violates the Rules of Appellate Procedure. Rule 28(b)(5) provides that "[a]n appellant's brief in any appeal shall contain . . . [a] full and complete statement of the facts . . ., supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits, as the case may be." N.C. R. App. P. 28(b)(5) (2006); see, e.g., Consol. Elec. Distribs., Inc. v. Dorsey, 170 N.C. App. 684, 686-87, 613 S.E.2d 518, 520-21 (2005) (dismissing the appeal because the appellant failed to include a full and complete statement of the facts and committed four other rules violations). Although plaintiff made a half-hearted attempt to comply with Rule 28(b)(5) by providing sporadic record and transcript citations in the first few pages of his statement of the facts, there is no citation to the record or transcripts in either of the last two paragraphs. Had plaintiff complied with the line spacing requirements, these two paragraphs, spanning forty-seven lines, would have covered in excess of a page and a half of his brief.
Finally, and perhaps most significantly, this Court has held that assignments of error that are broad, vague, and unspecific violate Rule 10(c) of the Rules of Appellate Procedure. In re Appeal of Lane Co., 153 N.C. App. 119, 123, 571 S.E.2d 224, 226-27 (2002). In the present case, plaintiff's sole assignment of error, which is not even "stated at the conclusion of the record on appeal" as required by Rule 10(c)(1) but rather is located in the record prior to the judgment from which plaintiff appeals, states that the trial court "commit[ted] reversible error by dismissing the action of the plaintiff for lack of jurisdiction." Although plaintiff's assignment of error states the basis on which the trial court dismissed the complaint — that is, for a lack of jurisdiction — plaintiff fails to state the specific legal basis for the alleged error. See Pamlico Props. IV v. SEG Anstalt Co., 89 N.C. App. 323, 325, 365 S.E.2d 686, 687 (1988). The dissent is correct in noting that plaintiff challenges the dismissal of his action on the basis of jurisdiction, but more than one type of jurisdictional defect may be alleged. See N.C. Gen. Stat. § 1A-1, Rules 12(b)(1), 12(b)(2) (2005). By making a blanket statement that the trial court erred in dismissing the complaint on jurisdictional grounds, plaintiff's assignment of error is fatally overbroad, vague, and unspecific.
When viewed in toto, the nature and number of rules violations, combined with the absence of any compelling justification for suspending the rules pursuant to Rule 2, justifies dismissal of plaintiff's appeal. Various panels of this Court have taken inconsistent approaches with respect to the application of Rule 2 of the Rules of Appellate Procedure and created confusion over the implications of the Supreme Court's opinion in Viar v. N.C. Department of Transportation, 359 N.C. 400, 610 S.E.2d 360, reh'g denied, 359 N.C. 643, 617 S.E.2d 662 (2005). We thus believe it is necessary to address this issue in more detail.
The dissent argues that our construction of the Rules of Appellate Procedure may raise the stakes for appellate attorneys and legal malpractice carriers alike. Our decision here, however, neither imposes an unreasonable burden on appellate attorneys nor is it a major surprise.
Practitioners long have understood the importance of abiding by the appellate rules. Many seminars and continuing legal education courses have been offered on this very subject. See, e.g., Judge John M. Tyson, Ten Trial and Post-Trial Mistakes that Can Cost You on Appeal, in N.C. State View from the Bench, North Carolina Bar Ass'n, CLE No. 783VFB (Oct. 17, 2003); Robert R. Marcus, An Overview of the North Carolina Rules of Appellate Procedure: What You Don't Know Can Hurt You, in Appellate Advocacy, North Carolina Bar Ass'n, CLE No. 716CY2 (Nov. 15, 2002). Additionally, the North Carolina Rules of Appellate Procedure are widely available and posted, free of charge, on the website for the Administrative Office of the Courts. See Rules, available at http://www.aoc.state.nc.us/www/public/html/rules.htm (last visited Oct. 24, 2006).
North Carolina Supreme Court Justice Sarah Parker and Judges Linda M. McGee and John M. Tyson from this Court served as panelists for this presentation.
Despite the accessibility and acknowledged significance of the rules and the Supreme Court's plain language in Viar, the dissent nevertheless falls back on the maxim "to err is human." To err once is indeed human, and this Court, contrary to the dissent's contention, is not sanctioning automatic dismissal. However, the number and severity of the errors in the case sub judice cannot be tolerated, and the choice to take the "divine" step of forgiveness for the appellate attorney's mistakes lies with the party in the case and the attorney's client, not with this Court. Otherwise, ad hoc application of the rules, with inconsistent and arbitrary enforcement, could lead to allegations of favoritism for one counsel over another.
The full text of the Alexander Pope passage quoted by the dissent is "[g]ood-nature and good-sense must ever join; to err is human, to forgive, divine." Alexander Pope, An Essay on Criticism, in Poetical Works 62, 79 (Herbert Davis ed., 1978) (1711).
Roger Traynor, former Chief Justice of the California Supreme Court, once wrote, "[t]o err is human, as a judge well knows, but to err is not always harmless." Roger J. Traynor, The Riddle of Harmless Error 3 (1970). If the North Carolina Supreme Court elects to amend Rule 2 to reflect the dissent's interpretation, it effectively will be adopting an approach analogous to "harmless error" to the North Carolina Rules of Appellate Procedure. Cf. Erika Plumlee, " To Err Is Human" — But Is It Harmless?: Texas Rules of Appellate Procedure Rule 81(b)(2) and the Court of Criminal Appeals' Effort to Fashion a Workable Standard of Review, 21 Tex. Tech. L.Rev. 2205 (1990). However, even a harmless error analysis is not without its critics:
In our system of justice, fairness and impartiality are produced, if at all, by operation of legal rules and by the assignment of adjudicatory responsibilities. Those who fashion these rules, including the legislative and judicial branches of government, may be expected to consider the efficacy of what they produce and to decide what rules and standards are necessary to achieve fairness in the system as a whole. When a procedural or evidentiary rule seems not to work well, or when it seems to produce unjust results, the remedy is to amend or repeal it. The harmless error rule does neither. It leaves the law fully intact, but authorizes appellate court judges to pardon the violation of any legal precept, constrained only by their personal views of fairness and justice.
Gentry v. State, 806 P.2d 1269, 1278 (Wyo. 1991) (Urbigkit, C.J., dissenting); see also Harry T. Edwards, To Err Is Human, But Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L.Rev. 1167 (1995) (discussing the varying approaches to harmless error analysis and their respective flaws).
Additionally, a harmless error approach to our Rules of Appellate Procedure presents a classic slippery slope dilemma. As our Supreme Court noted nearly a century ago, "It is therefore necessary to have rules of procedure and to adhere to them, and if we relax them in favor of one, we might as well abolish them." Bradshaw v. Stansberry, 164 N.C. 356, 356, 79 S.E. 302, 302 (1913). Logically, the dissent's "to err is human" approach would permit all of the Rules of Appellate Procedure to be violated, so long as the appellee is able to respond effectively and this Court is able to address the appeal. If this interpretation was adopted, the Rules of Appellate Procedure are no longer rules but merely guidelines. Such an interpretation contradicts the plain language of the rules and the intent of their drafters, as well as the plain language of the Supreme Court's opinion in Steingress, Viar, and Viar's progeny.
Despite the quantity and quality of plaintiff's rules violations, the dissent contends that violations that warrant dismissal are only those "that substantively affect the ability of the appellee to respond and this Court to address the appeal." This is the identical argument this Court's majority opinion asserted in Viar that was expressly rejected by the Supreme Court. Furthermore, although the dissent offers its own standard for determining when to suspend the Rules, rule-making authority is not conferred on this Court but belongs exclusively with the North Carolina Supreme Court. See N.C. Const. art. IV, § 13( 2). Indeed, even the General Assembly may not alter or amend the appellate rules. See id.
For over the last thirty years, the governing framework for appeals in this state has been the North Carolina Rules of Appellate Procedure, and the Supreme Court specifically used the word "rules" and not "guidelines," "suggestions," or a word of similar import. Cf. Brown v. Brown, 353 N.C. 220, 224, 539 S.E.2d 621, 623 (2000) (noting that "[a]lthough the title of an act cannot control when the text is clear, the title is an indication of legislative intent." (citations omitted)). As succinctly explained by the Michigan Court of Appeals,
a rule is a principle or regulation governing conduct, procedure, arrangement, etc. This is distinguishable from mere guidelines, reports, or objectives, which, though guiding conduct, do not regulate or govern conduct. The difference is that guidance is permissive while regulation and governance are not.
Cole's Home Land Co., LLC v. City of Grand Rapids, 720 N.W.2d 324, 328-29 (Mich.Ct.App. 2006) (emphasis in original) (internal quotation marks omitted). As such, the appellate rules, by definition, are not permissive but instead are mandatory. See Viar, 359 N.C. at 401, 610 S.E.2d at 360.
This Court at times has evaluated rules violations under the more relaxed "substantial compliance" standard. See Cox v. Steffes, 161 N.C. App. 237, 241, 587 S.E.2d 908, 911 (2003) ("`This Court has held that when a litigant exercises "substantial compliance" with the appellate rules, the appeal may not be dismissed for a technical violation of the rules.'" (quoting Spencer v. Spencer, 156 N.C. App. 1, 8, 575 S.E.2d 780, 785 (2003))), disc. rev. denied, 358 N.C. 233, 595 S.E.2d 148 (2004); cf. Gage v. State, 748 S.W.2d 351, 353 (Ark. 1988) (Purtle, J., dissenting) ("Unless we insist on at least substantial compliance with the law and the rules, we might as well consider them to be mere guidelines which should be followed. . . ." (emphasis added)). However, a "substantial compliance" exception to the rules has not been expressly endorsed by our Supreme Court. Even if the Supreme Court had adopted the "substantial compliance" analysis, plaintiff in the case sub judice, through his numerous and significant rules violations, failed to substantially comply with the rules with his brief.
Since rules, not guidelines, govern appeals in North Carolina, the plain language of Rule 2 of the Rules of Appellate Procedure also demonstrates that the Supreme Court did not intend for the mandatory rules to be suspended for cases such as the one before us. Pursuant to Rule 2,
[t]o prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.
N.C. R. App. P. 2 (2006) (emphasis added). Furthermore, the commentary to Rule 2 explains that
Concurrent with the adoption of the Rules of Appellate Procedure, the North Carolina Supreme Court adopted the commentary to the rules as set forth by the drafting committee. See 287 N.C. 671 (1975). Then-Associate Justice Exum explained that the commentary was offered only as guidance and the committee's notes "are not authoritative sources on parity with the rules." Id.
[t]his Rule expresses an obvious residual power possessed by any authoritative rule-making body to suspend or vary operation of its published rules in specific cases where this is necessary to accomplish a fundamental purpose of the rules. . . . It is included here as a reminder to counsel that the power does exist, and that it may be drawn upon by either appellate court where the justice of doing so or the injustice of failing to do so is made clear to the court. The phrase "except as otherwise expressly provided" refers to the provision in Rule 27(c) that the time limits for taking appeal laid down in these Rules (i.e. Rules 14 and 15) or in "jurisdictional" statutes which are then replicated or cross-referred in these Rules, i.e. Rules 3 (civil appeals), 4 (criminal appeals) and 18 (agency appeals), may not be extended by the court.
N.C. R. App. P. 2 cmt. (1975) (emphasis added). Despite the plain language of the rule and commentary, panels of this Court have been divided over whether and when to invoke Rule 2. The dissent notes that this Court has invoked Rule 2 when the rules violations did not impact the appellee's ability to respond or this Court's ability to address the appeal. However, as another panel of this Court noted,
our Supreme Court recently reversed per curiam Munn v. North Carolina State University, 173 N.C. App. 144, 617 S.E.2d 335 (2005) for the reasons stated in Judge Jackson's dissenting opinion. Munn v. North Carolina State University, 360 N.C. 353, 354, 626 S.E.2d 270, 271 (2006). In her opinion, Judge Jackson cited State v. Buchanan, 170 N.C. App. 692, 693, 613 S.E.2d 356, 357 (2005) for the proposition, "Our Supreme Court has stated that this Court may not review an appeal that violates the Rules of Appellate Procedure even though such violations neither impede our comprehension of the issues nor frustrate the appellate process." (Emphasis added). Thus, by reversing for the reasons stated in Judge Jackson's dissent, our Supreme Court has directly spoken on this issue.
State v. Hart, 179 N.C. App. 30, 38, 633 S.E.2d 102, 107-08 (2006), disc. rev. denied, 360 N.C. 651, 637 S.E.2d 182 (2006); see also Walsh v. Town of Wrightsville Beach, 179 N.C. App. 97, 99, 632 S.E.2d 271, 273 (2006). Such an approach makes sense, for when the rule and commentary are read in pari materia, it is clear that the ability of this Court to comprehend the issues on appeal is irrelevant with regard the invocation of Rule 2. Rather, Rule 2 provides that violations of time limits and jurisdictional requirements are irreparable, and where review on the merits is allowed, other violations may be overlooked where injustice is abundantly evident or the public interest would be served " and only in such instances." Steingress, 350 N.C. at 66, 511 S.E.2d at 300 (emphasis added).
Determining what constitutes "manifest injustice" and when the "public interest" is at stake, however, can be an arduous trek over uncertain ground. Our Supreme Court has described appropriate opportunities for the invocation of Rule 2 as "rare occasions," Reep v. Beck, 360 N.C. 34, 38, 619 S.E.2d 497, 500 (2005), and "in exceptional circumstances," Steingress, 350 N.C. at 66, 511 S.E.2d at 299, and a thorough review of the Court's Rule 2 jurisprudence supports such characterizations. On several occasions, the Supreme Court expressly based its determination of "manifest injustice" on the severity of a criminal sentence — typically capital punishment or life imprisonment. As a practical matter, injustice is far more manifest when a person's life or liberty is at stake, and consequently, Rule 2 has found its greatest acceptance in the criminal context. However, the Supreme Court has not suspended the appellate rules in all criminal appeals, and last year, the Court specifically declined to invoke Rule 2 for a defendant facing life imprisonment. See State v. Dennison, 359 N.C. 312, 608 S.E.2d 756 (2005) (per curiam).
See, e.g., State v. Augustine, 359 N.C. 709, 731, 616 S.E.2d 515, 531 (2005); State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003); State v. Lemons, 352 N.C. 87, 92, 530 S.E.2d 542, 545 (2000), cert. denied, 531 U.S. 1091, 148 L. Ed. 2d 698 (2001); State v. Williams, 350 N.C. 1, 10, 510 S.E.2d 626, 633 (1999); State v. Adams, 347 N.C. 48, 62, 490 S.E.2d 220, 227 (1997); State v. Moody, 345 N.C. 563, 576, 481 S.E.2d 629, 636 (1997); State v. Gregory, 342 N.C. 580, 584-86, 467 S.E.2d 28, 31-32 (1996); State v. Williams, 317 N.C. 474, 483, 346 S.E.2d 405, 411 (1986); State v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984) (per curiam).
See, e.g., State v. Poplin, 304 N.C. 185, 187, 282 S.E.2d 420, 421 (1981); State v. Cohen, 301 N.C. 220, 222, 270 S.E.2d 416, 418 (1980); State v. Jones, 300 N.C. 363, 365, 266 S.E.2d 586, 587 (1980); State v. Williams, 300 N.C. 190, 192-93, 265 S.E.2d 215, 216 (1980); State v. Adams, 298 N.C. 802, 804, 260 S.E.2d 431, 432 (1979); State v. Samuels, 298 N.C. 783, 787, 260 S.E.2d 427, 430 (1979).
See also State v. Hooper, 318 N.C. 680, 681, 351 S.E.2d 286, 287 (1987); State v. Boykin, 307 N.C. 87, 90, 296 S.E.2d 258, 260 (1982); State v. Hunt, 305 N.C. 238, 248, 287 S.E.2d 818, 824 (1982).
See, e.g., State v. Reid, 322 N.C. 309, 313, 367 S.E.2d 672, 674 (1988); State v. Fennell, 307 N.C. 258, 263, 297 S.E.2d 393, 397 (1982).
In addition to criminal cases where a severe punishment has been imposed, the Court has been more willing to invoke Rule 2, either on "manifest injustice" or "public interest" grounds, in criminal or civil cases that involve either substantial constitutional claims or issues of first impression. An example of a substantial constitutional claim may be seen with the Supreme Court's granting in 2002 of the plaintiffs' "Emergency Petition for Suspension of the Rules" in Stephenson v. Bartlett, a case of significant public interest wherein the plaintiffs challenged the constitutionality of the General Assembly's 2001 legislative redistricting plans for the State House of Representatives and the State Senate. See Emergency Petition for Suspension of the Rules, Stephenson v. Bartlett, 355 N.C. 279, 560 S.E.2d 550 (2002) (No. 94P02). An example of a case of first impression in which the Court invoked Rule 2 is Brown v. Brown, 353 N.C. 220, 539 S.E.2d 621 (2000). The issue in Brown was whether "the Court of Appeals err[ed] in concluding that equitable distribution does not abate if one of the parties dies after filing for equitable distribution and divorce, but before receiving an equitable distribution judgment or an absolute divorce decree." Brown, 353 N.C. at 221, 539 S.E.2d at 622. Because of the unique "procedural dilemma [whereby] appeal to the Court of Appeals was made on behalf of a deceased party, and the appearance in th[e] [Supreme] Court in response to defendant's appeal was likewise made on behalf of a deceased party," the Court determined on grounds of manifest injustice that it was necessary to invoke Rule 2. Id. Rule 2 just as easily could have been invoked on "public interest" grounds, however, as evidenced by the General Assembly's immediately overruling the Court's decision. See Estate of Nelson v. Nelson, 179 N.C. App. 166, 170-71, 633 S.E.2d 124, 128 (2006) ("In 2001, the General Assembly amended N.C. Gen. Stat. § 50-20, adding subsection (1) to provide that `[a] pending action for equitable distribution shall not abate upon the death of a party.' This statute abrogated the Supreme Court's decision in Brown v. Brown, which held an equitable distribution claim abated upon the death of a party." (citations omitted)).
See, e.g., State v. Wiley, 355 N.C. 592, 624, 565 S.E.2d 22, 45 (2002), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003) (ex post facto claim); State v. Robinson, 339 N.C. 263, 276, 451 S.E.2d 196, 204 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995) (confrontation claim); State v. Elam, 302 N.C. 157, 161, 273 S.E.2d 661, 664 (1981) (equal protection, due process, and freedom of expression claims).
See, e.g., In re Montgomery, 311 N.C. 101, 114, 316 S.E.2d 246, 254 (1984). Rule 2 was invoked in Montgomery on "public interest" grounds, but the Court just as well could have based the decision on "manifest injustice," as the case involved the termination of parental rights, "tantamount to a `civil death penalty.'" In re K.A.W., 133 S.W.3d 1, 12 (Mo. 2004) (en banc) (citations omitted).
In the thirty-one years since the Supreme Court adopted the Rules of Appellate Procedure, the Court consistently has confined its invocation of Rule 2 to extraordinary matters affecting the life or liberty of a criminal defendant or the constitutionality of a statute. "Manifest injustice" and "public interest" have been construed strictly, and perhaps the single anomaly, if it may be considered such, in the Court's jurisprudence is Potter v. Homestead Preservation Ass'n, 330 N.C. 569, 412 S.E.2d 1 (1992). The plaintiff in Potter brought suit for, inter alia, breach of a partnership agreement respecting the development of a 700-acre tract of land. Although plaintiff failed to cross-assign error to the trial court's dismissal of her contract claim, plaintiff nonetheless attempted to "invoke N.C. R. App. P. 28(c), as authorization for her argument that, despite having made no cross-assignments of error, she is entitled to a new trial on the issue of damages, based on this theory of recovery." Potter, 330 N.C. at 575, 412 S.E.2d at 5. The Court rejected her argument, noting that Rule 28(c) would only apply to claims upon which plaintiff prevailed at trial. See id. Nonetheless, the Court found that dismissal for plaintiff's failure to cross-assign error and her corresponding misinterpretation of Rule 28(c) would be manifestly unjust. See id. at 576, 412 S.E.2d at 5.
Although Potter involved a purely private dispute, just as in the case sub judice, Rule 2 was invoked in Potter as a result of a misinterpretation of one of the rules and as a result of the substantial sums at stake in the matter. Although plaintiff in the instant case also seeks recovery for substantial monetary damages, plaintiff's rules violations are numerous and blatant. Thus, rather than looking to Potter for guidance, the Supreme Court's more recent decision in Steingress v. Steingress, 350 N.C. 64, 511 S.E.2d 298 (1999), better supports our refusal to invoke Rule 2 under these circumstances. Steingress, like the case before us, involved a purely private dispute: the aftermath of a failed marital relationship. Whereas the instant case is based on claims of alienation of affection and criminal conversation, the defendant in Steingress appealed an adverse decision regarding the equitable distribution of marital property. The defendant in Steingress violated Rules 26(g) and 28(b)(5), see Steingress, 350 N.C. at 65, 511 S.E.2d at 299, which plaintiff in the case before us also violated, in addition to Rules 28(b)(4), 28(b)(6), and 10(c). Specifically, the defendant, just as plaintiff here, failed to double space the text of her brief. See id. The defendant also "fail[ed] to set out in her brief references to the assignments of error upon which her presented issues and arguments were based." Id. Judge Walker in dissent explained that it was still possible "to determine which assignments are argued in the brief and recommended taxing each attorney with costs for violating the rules. Id. at 67, 511 S.E.2d at 300. The dissent in the case sub judice echoes precisely Judge Walker's sentiment and recommendation, which nevertheless were rejected by our Supreme Court. See id. The defendant's rules violations were substantial, and as there was no issue of public interest or manifest injustice in Steingress, the Supreme Court held that our Court did not abuse its discretion in refusing to invoke Rule 2. Id. at 66-67, 511 S.E.2d at 299-300. This Court is cognizant of the societal importance of the institution of marriage, see Whitford v. North State Life Ins. Co., 163 N.C. 223, 226, 79 S.E. 501, 502 (1913), but based on the quality and quantity of the appellate rules violations and based on the facts of the case sub judice, we hold that it is unnecessary to invoke Rule 2 "[t]o prevent manifest injustice to a party, or to expedite decision in the public interest." N.C. R. App. P. 2 (2006).
Although the parallels to Steingress and the language in Viar support our conclusion, it is likely that neither Steingress nor Viar — despite the attention they have garnered — were intended to serve as a lodestar for appellate rule determinations. Rather, the plain language of the rules themselves remains the essential guide for this Court in applying Rule 2 and the other Rules of Appellate Procedure. Furthermore, the authority to alter Rule 2 lies solely with our Supreme Court and not with panels of this Court. No matter what interpretations ultimately are adopted for the Rules of Appellate Procedure, we must be careful not to "enshrine inefficiency or lapse into complacency merely because occasional error is inevitable." Quick v. State, 450 So. 2d 880, 881 (Fla.Dist.Ct.App. 1984). Accordingly, because of the nature and number of plaintiffs violations of the North Carolina Rules of Appellate Procedure, this appeal is dismissed.
DISMISSED.
Judge TYSON concurs.
Judge GEER dissents by separate opinion.