It’s not every day that the Court of Appeals spends almost 12 pages talking about the appellate rules, including why rules compliance is so important. But that’s exactly what the Court of Appeals did in Harney v. Harney. Why? The appellant’s brief used an appendix to circumvent the 8,750 word-count limit. And then the appellee joined in on the fun.
In Harney, the Court of Appeals determined that appellant’s principal brief contained around 17,000 words (almost double the 8,750 word-count limit in N.C. R. App. P. 28(j)). At first glance, that violation sounds bold and flagrant. But appellant’s violation was a bit more subtle. Appellant placed all those excess words in a 27-page “Appendix C” that accompanied her brief because Appellate Rule 28(j)(1) provides that materials in an appendix do not count against the word-count limit.
But as the Court of Appeals has noted before, parties generally should not attach to a brief “a document not in the record and not permitted under N.C. R. App. P. 28(d) in an appendix” Horton v. New S. Ins., 122 N.C. App. 265, 268, 468 S.E.2d 856, 858 (1996); see also Citifinancial, Inc. v. Messer, 167 N.C. App. 742, 748, 606 S.E.2d 453, 457 (2005) (Steelman, J., concurring).
The Harney opinion is a good reminder about the importance of appellate rules compliance. Harney explained that not only did appellant significantly exceed the word-count limit, but she violated Appellate Rule 28(d) by shifting arguments into an appendix to the brief. Thus, while “appendixes to briefs do not count against the word limitations of the brief,” parties “cannot simply label an argument as an appendix to extend word count for the body of the brief indefinitely.”
On top of that, appellant single-spaced her arguments and used an unacceptable font, in violation of Appellate Rule 26(g). (People who read as much as appellate judges understand why fonts and spacing inspire such passion in appellate world). Finally, her statement of facts was argumentative, in violation of Appellate Rule 28(b)(5).
Given the effect of these violations, Harney determined that some type of sanction was appropriate under Dogwood. The appellate court considered dismissing appellant’s appeal altogether. But it ultimately determined that disregarding all the arguments in appellant’s Appendix C was a sanction that better reflected the gravity of the appellant’s violations. Harney explained that it did not want to “encourage others to believe they have found a new way to extend their briefs without seeking [the appellate court’s] permission.” That is likely code-speak for “if someone tries this again, we may not be so nice.”
Speaking of “others,” what about the appellee? How did appellee respond to appellant’s 17,000-word argument without violating appellee’s own 8,750 word-count limit? Unfortunately, he didn’t. Appellee’s brief attached an even longer argument-filled appendix—bringing his word-count total to around 18,000 words. The Court of Appeals emphasized that one of the problems with creative efforts to exceed the word-count limit is that it encourages others to do the same—in an effort to neutralize the unfair advantage created by the original violation. This not only places a burden on the appellate courts, but it delays the resolution of other appeals. But because appellee’s violation flowed from his effort to neutralize appellant’s initial violation, Harney declined to sanction appellee.
What are your thoughts on the sanction the court imposed on appellant? What about the decision not to sanction the appellee? What should appellee have done instead?
Also, in the early stages of the litigation, the appellant was pro se. Would it have mattered if the appellant was still pro se at the time she filed her brief?
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