A few entries ago, regarding the new appellate rules, in discussing the changes relating to the appendix, we noted that with the new rules, the Maine SJC warned folks to make sure that their appendices followed the Rule 8. (New rules) We’ve also blogged before on the Court’s frustration with appendices not put in the right order, containing duplication, etc. (Do you want your appendix ripped out? A caveat; The Eight Percent Solution; Report from the Appellate Seminar) Now the Court has dismissed an appeal on the basis that the appendix did not put the documents in the right order. Hall v. Camden Hills Farm By the Sea, LLC, 2017 ME 150.
The appellant filed its brief and appendix, and the appellee moved to dismiss, saying the brief had defects and the appendix was not in the right order and also included documents not a part of the trial court record. In response, the appellant filed a motion to amend the appendix, with the amended appendix attached. The Court (Justice Gorman, who typically issues the SJC’s orders) denied both motions and rejected the brief and appendix, noting that the appellant had not responded to the motion to dismiss. The appellant then filed a replacement brief and appendix. The appellee moved to dismiss again, saying, among other things, that the documents in the replacement appendix were not in the right order. This time the Court (Justice Gorman issuing the order again) ruled that the second motion to dismiss would be considered with the merits of the appeal. In the Court’s ultimate decision, the Court didn’t reach to the merits (appeal of a foreclosure), dismissing the appeal as a sanction, on the ground that the appendix wasn’t in the right order. The appellant had put documents in chronological order, instead of the required order (which includes putting the judgment and ruling first).
The Court stated that its rule was clear and specific, and yet over the years it had been surprised by the extent of lack of compliance. It noted that an appendix “significantly out of compliance with Rule 8 is often rejected and returned to the appellant with direction to prepare and file a new appendix,” and that that had “already occurred once in this appeal.” Hence, for “repeated disregard of the requirements of Rule 8,” the appeal was dismissed. The Court also highlighted the warning we had mentioned: the Restyling Notes to the new rules state: “practitioners may anticipate that the explicit directions in Rule 8 will be more rigorously enforced than in the past, with failure to comply with the Rule more likely to lead to a rejection of the appendix and a requirement that a new appendix be prepared or another sanction, including dismissal of the appeal, being imposed.”
So read Rule 8 carefully and follow it to the letter, or face the consequences. On the other side of the coin, as appellee, it now probably makes sense to file a motion to dismiss based on a non-compliant appendix. Don’t say you haven’t been warned.