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COA Issues Important Decision On Assignments Of Error

By Sean E. Andrussier

Yesterday in a href="http://www.aoc.state.nc.us/www/public/coa/opinions/2008/051183-2.htm"Jones v. span class="blsp-spelling-error" id="SPELLING_ERROR_0"Harrelson/span amp; Smith Contractors/a the Court of Appeals (span class="blsp-spelling-error" id="SPELLING_ERROR_1"COA/span) issued a decision that could be important in the debate on assignments of error. It liberalizes Appellate Rule 10(c)(1)'s requirement that assignments must state the "legal basis upon which error is assigned." Judge span class="blsp-spelling-error" id="SPELLING_ERROR_2"Geer/span wrote the majority opinion, joined by Judge Jackson. Judge Tyson dissented in part.br /br /First some background. The NC Supreme Court has held that on appeal of summary judgment, the appellant isn't required to make assignments of error. Why? Review of summary judgment "is necessarily limited to whether the trial court's conclusions as to whether there is a genuine issue of material fact and whether the moving party is entitled to judgment, both questions of law, were correct." ema href="http://www.aoc.state.nc.us/www/public/sc/opinions/2008/631-06-1.htm"span class="blsp-spelling-error" id="SPELLING_ERROR_3"Schenkel/span amp; span class="blsp-spelling-error" id="SPELLING_ERROR_4"Shultz/span, Inc. v. Hermon F. Fox amp; span class="blsp-spelling-error" id="SPELLING_ERROR_5"Assocs/span./a/em, 658 S.E.2d 918 (N.C. 2008) (citing emEllis v. Williams/em, 355 S.E.2d 479 (N.C. 1987) (reversing span class="blsp-spelling-error" id="SPELLING_ERROR_6"COA's/span dismissal of appeal, where span class="blsp-spelling-error" id="SPELLING_ERROR_7"COA/span dismissed because appellant had failed to include any assignments of error to summary judgment order)). In other words, because summary judgment is always based on two questions of law--whether there's a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law--the notice of appeal itself adequately advises the appellate court of the issues to be reviewed, and "assignments of error add nothing." emEllis/em, 355 S.E.2d at 481.br /br /This raises the question: if assignments of error aren't required on review of summary judgment, why would they be required on review of other types of orders where review is necessarily limited to formulaic questions of law? For example, review of any Rule 12(b)(6) order is limited to whether the complaint's well-pleaded allegations, viewed in the light most favorable to plaintiff, state a claim on which relief may be granted. So why doesn't the notice of appeal adequately apprise the appellate court and the span class="blsp-spelling-error" id="SPELLING_ERROR_8"appellee/span of the basis for the appeal? Why would assignments of error be necessary?br /br /Yesterday the span class="blsp-spelling-error" id="SPELLING_ERROR_9"COA/span took a step in this direction in connection with orders granting directed verdicts and span class="blsp-spelling-error" id="SPELLING_ERROR_10"JNOV/span, analogizing them to summary judgment orders.br /br /In yesterday's appeal, the appellant's assignments of error didn't contain legal bases on which error was assigned. For example, one assignment said, "Did the Trial Court . . . err in . . . granting . . . the defendant's prior Motion for Directed Verdict on the plaintiff's unfair and deceptive trade practice claim . . . ?" Another assignment said the trial court erred by "granting defendant's Motion for Judgment Notwithstanding the Verdict as to the fraud claim and award of compensatory damages."br /br /The COA held that the failure to provide legal bases on which error was assigned wasn't a problem. With respect to a directed verdict or span class="blsp-spelling-error" id="SPELLING_ERROR_11"JNOV/span, the span class="blsp-spelling-error" id="SPELLING_ERROR_12"COA/span observed, appellate review would be limited to whether sufficient evidence existed for the claims to go to the jury. Consequently, requiring the appellant to state in an assignment of error the legal basis upon which error is assigned would require a "superfluous formality." Thus, the span class="blsp-spelling-error" id="SPELLING_ERROR_13"COA/span held that it would review the appeal even though the assignments of error contained no legal bases.br /br /The span class="blsp-spelling-error" id="SPELLING_ERROR_14"COA/span should extend this same reasoning to Rule 12(b)(6) orders. It makes no sense to require rigid compliance with Appellate Rule 10(c)(1) when appellants seek review of Rule 12(b)(6) orders but not when they seek review of summary judgment, directed verdict, or span class="blsp-spelling-error" id="SPELLING_ERROR_15"JNOV/span orders.

Full post as published by North Carolina Appellate Blog on December 17, 2008 (boomark / email).