Every so often, the forces of evil triumph over truth and justice, and we find ourselves in the position of having to assemble a Record on Appeal. For many trial lawyers, this task presents an unhappy combination of drudgery and anxiety. The North Carolina Rules of Appellate Procedure are lengthy, somewhat technical, and have been amended on several recent occasions. Failure to comply with these procedural requirements can result in a dismissal of the appeal, see Lowder v. All Star Mills, Inc., 91 N.C. App.621, 372 S.E.2d 739 (1988), or, at a minimum, a humbling, cautionary comment. See Wiseman v. Wiseman, 68 N.C.App. 252, 314 S.E. 2d 566 (1984).

This article focuses on civil appeals to the Court of Appeals and presents a "nuts and bolts" discussion of the procedural requirements for assembling a Record on Appeal, complete with a "clip and save" checklist.

TIME REQUIREMENTS

The appellant is responsible for preparing a proposed Record on Appeal to be served on the appellee. The appellee then approves the Record or objects and proposes amendments or an alternative Record. If the parties are unable to reach an agreement concerning the contents of the Record, the Trial Court must settle the Record. Once the Record has been settled, it is filed and docketed with the appellate court. Each of these steps must take place within specified time limits.

The deadline for service of the proposed Record on the appellee depends upon the need for a transcript of the trial proceedings. If no transcript is required, the proposed Record must be served within 35 days after the filing of the Notice of Appeal. Rule 11(a). If the appellant determines that a transcript of all or part of the trial proceedings is necessary, he must arrange for the transcription of such parts of the proceedings as he deems necessary within 14 days after filing the Notice of Appeal. Written documentation of this transcript arrangement must be filed with the Clerk of the trial court and served on the other parties of record. This documentation must include the name and address of the court reporter, a designation of the parts of the proceedings to be transcribed, and, if less than the entire proceedings have been designated, a statement of the issues the appellant intends to raise on appeal. Rule 7(a)(1). The court reporter has 60 days thereafter in which to prepare the transcript. This time period may be extended for an additional 30 days by the trial court upon the motion of the reporter or a party. Motions for further extensions must be addressed to the Court of Appeals. Rule 7(b)(1). The appellant has 35 days after delivery of the trial transcript in which to serve his proposed Record on Appeal on the appellee. Rule 11(a). The Rules do not require that the proposed Record or any notice of service thereof be filed with the trial court.

Within 21 days after service of the appellant's proposed Record, the appellee should either approve the Record or serve his objections, proposed amendments, or alternative Record. If the appellee approves the proposed Record or files no response, the Record is settled as prepared by the appellant.

If objections or proposed amendments are made, the appellant has 10 days in which to request judicial settlement of the Record by the trial court. This request must be in writing and filed with the Clerk. The trial court has 15 days in which to schedule a hearing and 20 days thereafter in which to settle the Record. If the appellant fails to request judicial settlement, the Record is settled in accordance with the appellee's objections or proposed amendments. The parties may agree upon the contents of the Record at any time before judicial settlement. Rule 11(b) and (c).

The trial court may grant one 30-day extension of the time within which the appellant must serve his proposed Record on Appeal. Thereafter, any request for an extension of time must be directed to the appellate court. Rule 27(c).

The appellant must file the Record on Appeal with the Clerk of the Court of Appeals within 15 days after settlement by any of the methods described in Rule 11. Rule 12 (a). Records are deemed filed on the date of mailing to the Clerk, as evidenced by the proof of service. Rule 26 (a) (1).

The appellant bears the full burden of seeing that the Record on Appeal is properly settled and timely filed with the appellate court. After filing Notice of Appeal, the appellant's attorney should carefully calculate each deadline and establish a tickler system to generate reminders. The Clerk of Court of Appeals reports that violation of the time requirements is the most frequent mistake made by attorneys and can result in dismissal of the appeal. McLeod v. Faust, 92 N.C. App. 370, 374 S.E. 2d 417 (1988)

Any extension of time granted by the trial court in violation of the Rules of Appellate Procedure is ineffective. Richardson v. Bingham, 101 N.C. App. 687, 400 S.E. 2d 757 (1991).

COMPOSITION OF THE RECORD

Rule 9 sets forth the basic components of the Record on Appeal; however, other rules and case law create additional requirements to be considered. The Record on Appeal must contain the following:

1. Cover Sheet. The cover sheet of the Record should show the case caption, including the case number assigned by the appellate court; the Judicial District from which the case arises; the style of the case, showing the names of all parties to the action; the county from which the case comes and the docket number from this county; and the title of the document. A form of the caption is included in Appendix B of the Rules of Appellate Procedure. The Court relies upon this sheet in preparing its mandate to the Trial Court. Therefore, it is critical that this basic information be accurate.
   
   
2. Index. An index stating the contents of the Record should appear on the coversheet if there is sufficient room. Otherwise, it should be the first page of the Record. A form of the Index is included in Appendix B to the Rules of Appellate Procedure.
   
   
3. Organization of the Court. The first textual page of the Record should be a statement identifying the Judge from whose judgment or order the appeal is taken, the session at which the judgment or order was rendered, the time and place of rendition, and the name of the party appealing.
   
   
4. Jurisdictional Papers. Documentation showing the jurisdiction of the trial court over the person or property of the defendant, or a stipulation of counsel to that effect, is necessary. If a copy of the Civil Summons is used, the reverse side showing return of service must be included.
   
   
5. Pleadings. The Record must include copies of the pleadings in the action and any Pre-Trial Order on which the case was tried. Pursuant to Rule 9 (b)(3) , each pleading must show the date on which it was filed and, if verified, the name of the person who verified the pleading and the date of verification.
   
   
6. Evidence. The Record should contain so much of the evidence as is necessary for an understanding of all errors assigned. Rule 9(c) sets forth the ways in which this evidence can be presented. The most common method is to enclose a verbatim transcript of all testimonial evidence necessary to understand the errors assigned. If this option is selected, the Record itself must include a statement specifying the portions of the transcript to be filed, and a copy of the transcript must be filed with the appellate court at the same time as the Record. The transcript should be settled in the same manner as the other portions of the Record. Therefore, a copy of the transcript portions to be included with the Record must be served on the appellee at the same time as the proposed Record. This transcript option may also be used when discovery depositions are included in the Record.

   Alternatively, the appellant can include a narrative of the testimonial evidence in the Record itself. The question and answer form must be used if error is assigned with respect to the admission or exclusion of evidence. Only written versions of the trial court proceedings should be included. The appellate courts will not review video-taped evidence. Shillington v. K-Mart, 102 N.C. App. 187, 402 S.E. 2d 155 (1991).

7. Jury Instruction. Where error is assigned to the giving or omission of instructions to the jury, a transcript of the entire charge must be included in the Record itself. The appellant cannot simply submit the jury charge in the copy of the trial transcript sent to the Court for review of the testimonial evidence.
   
   
8. Verdict and Findings. The Record should include copies of the issues submitted to the jury and the verdict or a copy of the trial court's findings of fact and conclusions of law in non-jury cases.
   
   
9. Judgment or Order. The Record must include a copy of the judgment or order from which appeal is taken.
   
   
10. Notice of Appeal and Settlement of Record. The Record must include a copy of the Notice of Appeal, and all orders establishing time limits relative to the perfecting of the appeal or other documents pertaining to the settlement of the Record. The appellate court reviews each Record to determine if the applicable deadlines have been met. Traditionally, counsel has included "appeal entries" in the form of an order of the trial court setting the time limits and appeal bond. Such entries are not required if the trial court has not changed the time limitations or security requirements set by Rules 6, 7, and 11; however, each Record should include a statement or stipulation showing how the Record was settled, such as the following:

    Counsel for the parties stipulate that the appellant served its proposed Record on Appeal on the appellant by mail on February 3, 2004; that the appellee served its proposed amendments to the Record on the appellant by mail on February 23, 2004; and that the foregoing Record on Appeal was settled by stipulation on March 1, 2004.

11. Assignments of Error. The most critical portion of the Record on Appeal is the listing of the assignments of error, since the scope of review on appeal will be confined to a consideration of the issues identified in this section. Rule 10(c) (1) states that:

    Each assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned. An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references. Questions made as to several issues or findings relating to one ground of recovery or defense may be combined in one assignment of error, if separate record or transcript references are made.

    Assignments of error should be specific, not broadside, and must state some legal basis. Table 4 of Appendix C to the Rules sets forth several examples of appropriate assignments of error. Interestingly, all of the examples pertaining to pre-trial rulings involve the denial of defense motions. On rare occasions, however, the trial courts will mistakenly allow one of these motions, and the following examples may be helpful.

    The plaintiff assigns as error:

    1. The trial court's dismissal of this action pursuant to the defendant's Motion under N.C.R.Civ.P. 12(b)(6) on the grounds that the plaintiff's Complaint states a claim for negligence upon which relief can be granted and does not establish the plaintiff's own contributory negligence.

       R. p. 20.

    2. The trial court's entry of summary judgment in favor of the defendant, on the grounds that the Record reflects a genuine issue of material fact as to whether the statute of limitations has run, and the defendant is not entitled to judgment as a matter of law.

       R. p. 25.

    3. The trial court's entry of summary judgment in favor of the defendant, on the grounds that the Record reflects a genuine issue of material fact as to whether the defendant's negligence was the proximate cause of injury to the plaintiff.

       R. p. 30.

    4. The trial court's entry of a directed verdict in favor of the defendant on the issue of gross negligence, on the grounds that the plaintiff presented sufficient evidence to create a triable issue as to whether the defendant's actions constitute gross negligence.

       R. p. 40.

    The Appendix also includes examples of assignments pertaining to jury instructions and evidentiary rulings. When the assignment involves an instruction given by the Court, the specific portion of the charge in question must be set out within brackets in the Record. When the assignment pertains to the Court's refusal to give a requested instruction, the proposed instruction must be set out in the Record immediately following the instructions given. Rule 10(c)(2).

    With respect to findings and conclusions made by the Trial Court, Rule 10(c)(3) states that:

    ...questions that the evidence is legally or factually insufficient to support a particular issue or finding, and challenges directed to any conclusions of law of the trial court based upon such issues or findings, may be combined under a single assignment of error raising both contentions if the record references and the argument under the point sufficiently direct the court's attention to the nature of the question made regarding each such issue or finding or legal conclusion based hereon.

12. Exhibits. Rule 9(d) governs the inclusion of exhibits in the Record. Any documentary exhibits which were filed as attachments to pleadings or other items in the Record should be included as part of such items. Otherwise, three legible copies of each documentary exhibit required for understanding of the errors assigned must be filed with the appellate court when the Record is filed. Original exhibits need not be filed.

    If a non-documentary exhibit has been settled as part of the Record, the appellant should request, within 10 days after settlement of the Record, that the Clerk of Superior Court transmit the exhibit directly to the appellate court. Upon stipulation of the parties, a photograph or drawing of a large or bulky exhibit can be substituted for the actual exhibit.

    Any written discovery materials which are necessary to an understanding of the issues on appeal may be set out in the Record or submitted to the court as documentary exhibits. Rule 9(c)(4).

13. Certificate of Service. Pursuant to Rule 27(d) , the Record presented for filing shall contain proof of service in the form of a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. There is no requirement that the Record include any proof of service of the proposed amendments to the proposed Record or of any objections or proposed amendments to the proposed Record; however, these documents can be submitted to show that the Record was settled in a timely manner, in the absence of a statement or stipulation of counsel.
    
    
14. Identification of Counsel. Rule 9(b)(4) provides that the names, office addresses, and telephone numbers of counsel of record for all parties to the appeal shall appear at that end of the Record. The Clerk's office relies upon this information in preparing the docket.

    Also, Appendix B to the Rules states that all papers filed with the appellate court must bear the original signature of counsel. This requirement can be met by signing the certificate of service or a stipulation or a statement settling the Record. To ensure clear reproduction, counsel should sign using black ink.

FORMAT

The Record on Appeal should have a cover sheet with the caption of the document and the Index. The next page should also bear the caption, followed by the organization of the court. This page bears no number, but is page one.

The remaining items of the Record should be arranged in chronological order as far as practicable. Each page should bear a number at the center of the top margin, flanked by dashes.

Oftentimes, inclusion of the appellee's proposed amendments will require re-numbering of the pages of the proposed Record. Counsel should also double-check the Record references in the Assignments of Error, since these may change with the inclusion of additional material.

All textual material in the Record should be single-spaced, with double spaces between the paragraphs. This requirement seems to conflict with Rule 26(g), which states that the body of text shall be presented with double spacing, and the Clerk has indicated that, for longer material such as narrated evidence, double spacing is preferred.

Double-spaced pleadings or exhibits which were filed in the trial court need not be reformatted to be included in the Record.

The appellate courts have recently gotten a bit fussy about fonts and type size. "Nonproportional type" such as Courier (12 point) is acceptable. If proportional type is used (such as Times New Roman), increase the size to 14 point.

The format of the Index is specifically described in Appendix B to the Rules. The Index should be indented 3/4" from each margin, providing a five-inch line.

Only a single copy of the Record should be filed with the Court. A binder clip or rubber band should be used to secure the documents in order.

FEES AND COSTS

• Appeal Bond. Pursuant to Rule 6, an appellant must provide security for the cost of appeal in accordance with N.C.G.S. §1-285 and §1-286. In the absence of a lesser bond set by the Court, a bond in the amount of Two Hundred Fifty Dollars ($250) is required. A certified copy of an appeal bond, or a cash deposit made in lieu of the bond, must be filed with Record on Appeal in the appellate court.
  
  
• Filing Fee. The docketing fee for an appeal is currently Ten Dollars ($10). This amount should be paid to the Clerk at the time of the filing of the Record on Appeal.
  
  
• Printing Costs. A deposit for the estimated printing costs of the Record must accompany the document upon filing with the Court of Appeals. The amount of this deposit should be One Dollar and Seventy Five Cents ($1.75) for each page of the Record, including the cover page. No deposit is required for documentary exhibits or the trial transcript. The Court of Appeals prints the Record as submitted.

Assembling a Record on Appeal is a tedious task that provides little intellectual stimulation. A mistake can provide your opponent or the court with a way to avoid a difficult issue. A good checklist, and a current copy of the appellate rules, can help assure that your appeal is decided on its merits.