8,750 Words Is All It Takes, After All?

I wrote in this earlier post that O’Neal v. O’Neal, 738 S.E.2d 190 (2013) may have created a new hurdle for the appellants in North Carolina. The North Carolina Court of Appeals in O’Neal criticized the Appellant’s attempt to challenge the trial court’s findings of fact. Ultimately, the Court of Appeals even refused to review that challenge to the findings of fact.

That was unexpected because the Appellant in O’Neal had taken all the ordinary steps to accomplish her challenge. In her Issues on Appeal, she listed the offending findings by number; in her Brief-in-Chief, she listed the findings by number again and addressed what she had dubbed the “salient points.” Absent actually copying the challenged parts of the lower court’s order into her brief, it is not clear what more the O’Neal Appellant could have done. Because the Rules limit Appellants’ briefs-in-chief to 8,750 words, O’Neal presented a challenge for the future appellants.

Happily, the North Carolina Court of Appeals today seems to have rejected the O’Neal’s approach.

In The North Carolina State Bar v. Simmons, the Court reviewed the appellant’s challenge to the findings of fact even though neither the appellant’s Brief-in-Chief, nor his Statement of Issues on Appeal contained any reference to the specific findings of fact he was challenging. Nevertheless, the North Carolina Court of Appeals concluded that the appellant’s challenge to the finding of fact was procedurally sufficient. The Court also explicitly confirmed that “assignments of error to specific findings of fact are not required.” The Court wrote:

No specific findings of fact were referenced as being in error. Nevertheless, we agree with Defendant that assignments of error to specific findings of fact are not required to properly challenge those findings. Simmons

In my view, Simmons correctly applies the Rules of Appellate procedure.

Of course, one panel of the Court of Appeals can not overrule another, and, consequently, Simmons does not erase O’Neal altogether. Nevertheless, Simmons’s clear statement that “assignments of error to the specific findings of fact are not required” likely signals that O’Neal’s decision was just an outlier.

Facebooktwittergoogle_plusredditpinterestlinkedinmailby feather