State v. Spencer

JACKSON, Judge,

concurs by separate opinion.

Although I concur fully with the majority opinion, I write separately to express my opinion that while not all Appellate Rules violations warrant dismissal, neither do they all require a determination of whether to invoke Rule 2.

In State v. Hart, 361 N.C. 309, 644 S.E.2d 201 (2007), our Supreme Court reminded this Court that “every violation of the rules does not require dismissal of the appeal or the issue, although some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure.” Id. at 311, 644 S.E.2d at 202 (emphasis added). Therefore, when Rules violations are not so egregious as to warrant dismissal, sanctions “may be appropriate.” This leaves open the possibility that sanctions may not be appropriate when the violations are minor.

“[T]he exercise of Rule 2 was intended to be limited to occasions in which a ‘fundamental purpose’ of the appellate rules is at stake, which will necessarily be ‘rare occasions.’ ” Id. at 316, 644 S.E.2d at 205 (citations omitted). “Rule 2 must be applied cautiously.” Id. at 315, 644 S.E.2d at 205. “Before exercising Rule 2 to prevent a manifest injustice, both [the Supreme] Court and the Court of Appeals must be cognizant of the appropriate circumstances in which the extraordinary step of suspending the operation of the appellate rules is a viable option.” Id. at 317, 644 S.E.2d at 206.

Because Rule 2 is an “extraordinary step,” I do not believe that it should be invoked every time there are Rules violations which fail to rise to the level of requiring dismissal. Just as sanctions may not be appropriate even for minor Rules violations, Rule 2 also may not be appropriate when the Rules violations are minor.

Since Hart, this Court has declined to dismiss an appeal and reached the merits of the case without invoking Rule 2 on several occasions. See State v. Parker, 187 N.C. App. 131, 135, 653 S.E.2d 6, 8 (2007) (chastising defense counsel for failing to state the appropriate standard of review pursuant to Rule 28(b)(6)); Cotter v. Cotter, 185 N.C. App. 511, 648 S.E.2d 552 (2007) (declining to dismiss, sanction, or invoke Rule 2 when the only violation was failure to state the standard of review pursuant to Rule 28(b)(6)); State v. Burke, 185 N.C. App. 115, 648 S.E.2d 256 (2007) (same when the violation of Rule 28(b)(6) was failing to cite the record page upon which the stated assignment of error was found); Peverall v. County of Alamance, 184 N.C. App. 88, 645 S.E.2d 416 (2007) (taxing printing costs to plaintiffs counsel for three violations of Rule 28(b)(6) and a violation of Rule 10(c)(1)); and McKinley Bldg. Corp. v. Alvis, 183 N.C. App. 500, 645 S.E.2d 219 (2007) (taxing printing costs to defendants’ counsel for violations of Rules 28(b)(4), 28(b)(6), and 10(c)(1)).

I would reserve the invocation of Rule 2 for those cases in which the very nature of the particular Appellate Rule violation requires its use. One example of such a violation is the one in the case sub judice. Here, if we were to decline to invoke Rule 2, there would be no assignment of error to address.