Court of Civil Appeals Considers Whether Failure to Serve Brief Warrants Dismissal of an Appeal

M.B. v. R.P and P.P considered the appropriate consequences for the failure to serve an appellate brief as indicated on the certificate of service and concluded that, under the circumstances of that case, dismissal of the appeal was not called for.

The appellant in a child custody case electronically filed his brief on March 15, 2008.  Although the father’s attorney indicated on the certificate of service that he served a copy of the brief on the appellee by mail, the brief was never mailed due to a secretarial error.  The appellee received an electronic copy of the brief on March 20, 2008. and on April 11, 2008, filed a motion to dismiss the appeal, arguing that the appellant failed to serve his brief as indicated on the certificate of service.  The appellant responded by explaining that his secretary believed that electronically filing the brief in the court ensured that the other parties would receive copies.

The court noted that while former Practice rules would have allowed for the dismissal of the appeal, the Rules of Appellate Procedure contain important distinctions from the "rigid requirements" of those Rules.  The current rules contain but one jurisdictional act: the failure to timely file a notice of appeal.  While an appeal "may" be dismissed for other reasons pursuant to Rule 2(a)(1) of the Rules of Appellate Procedure, a dismissal is not mandatory in those situations.  The  court further noted that the rules are to be construed "so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits" and that the court may suspend the operation of most of the rules to that end.  Therefore, the court concluded that it "may, but is not required, to dismiss an appeal for noncompliance with the Rules…and it may suspend the rules for good cause shown." 

Turning to the facts of the case before it, the court noted that the confusion regarding service of the brief stemmed from a misunderstanding of the administrative rules governing electronic filing of appellate briefs.  The court further recognized the difficulties that some members of the bar are experiencing as the courts incorporate new technologies such as electronic filing and declined to dismiss the appeal based on the "technicality of untimely service."  The court pointed out, however, that its opinion in this case "should not be understood as relaxing the requirements for serving appellate briefs on opposing counsel."