STATE COURT APPEAL CRASH COURSE

Transcription

1 STATE COURT APPEAL CRASH COURSE Presented by Beth Scherer and Matt Leerberg of Smith Moore Leatherwood LLP 1 *N.C. State Bar Board Certified Appellate Practice Specialists The road to North Carolina s state appellate courts 2 can be confusing and full of potholes, even for those who do appellate work every day. The course is marked by a web of rules, statutes, appellate opinions, and customs. This manuscript serves as a basic guide to the state appellate process, with links to additional information and resources. This summary is not intended to be exhaustive. Instead, it is intended to be an overview of the pit stops in the appellate process and a series of guideposts for practitioners. Any question about the procedure should start with the North Carolina Rules of Appellate Procedure (the Appellate Rules ). For further information, we recommend consulting the North Carolina Appellate Practice Blog maintained by Smith Moore Leatherwood LLP s Appellate Practice Group, which includes a number of additional resources. 1) STOP ONE: CAN YOU APPEAL? a) Final judgments, which dispose of the entire case, can always be appealed. N.C. Gen. Stat. 7A-27(b). i) An appeal from a final judgment can generally include previous orders. N.C. Gen. Stat ; Dep t of Transp. v. Rowe, 351 N.C. 172, , 521 S.E.2d 707, 710 (1999). However, the best practice is to specifically list in the Notice of Appeal any interlocutory orders you intend to challenge, along with the final judgment. Charles 1 Special thanks to Kip Nelson of Smith Moore Leatherwood LLP for assisting in the preparation of this manuscript. 2 Appeals in federal court follow different procedures. For those cases, we recommend consulting the Federal Rules of Appellate Procedure and the Fourth Circuit s Local Rules.

2 Vernon Floyd, Jr. & Sons, Inc. v. Cape Fear Farm Credit, ACA, 350 N.C. 47, 51, 510 S.E.2d 156, (1999); see also Attachment A. ii) Once the trial court enters an order that decides all substantive claims as to all parties, the mandatory deadline for appealing begins to run. Pending motions for attorney s fees and costs are considered collateral to a final judgment on the merits and, therefore, will not toll a party s deadline for filing a notice of appeal. Duncan v. Duncan, 366 N.C. 544, 546, 742 S.E.2d 799, 801 (2013); see also Attachment B. b) Interlocutory orders orders that do not dispose of the entire case can only be appealed if a statute allows it. Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). i) Among other things, orders that a) affect a substantial right, b) in effect determine the action, c) discontinue the action, or d) grant or refuse a new trial can be immediately appealed. N.C. Gen. Stat (a), 7A-27(b). ii) Certain orders ruling on personal jurisdiction can be immediately appealed. N.C. Gen. Stat (b). iii) Judgments that are final as to some, but fewer than all, parties or claims can be immediately appealed if the trial court certifies in the order that a party is seeking to appeal that there is no just reason for delay. N.C. R. Civ. P. 54(b); BB&T Co. v. Peacock Farm, Inc., -- N.C. App. --, --, 772 S.E.2d 495, 499, aff d, 368 N.C. 478, 780 S.E.2d 553 (2015) (per curiam); see also Attachment C. iv) Orders denying motions to compel arbitration are immediately appealable, N.C. Gen. Stat , as well as Business Court designation orders, id. 7A See also Attachment D. 2 Page

3 v) The Appellate Rules Committee has published a comprehensive guide to the appealability of interlocutory orders. 2) STOP TWO: WHEN DOES THE APPEAL CLOCK START AND HOW DO YOU START THE APPEAL? a) Entry of a final judgment or appealable interlocutory order starts the clock running for filing a notice of appeal. i) Per Rule 58 of the Rules of Civil Procedure, a judgment or order in a civil case is entered when it is reduced to writing, signed by the trial court, and file-stamped by the clerk of superior court. b) The notice of appeal is the document that starts the appeal process. i) For most cases, the notice of appeal must be in writing and signed by counsel of record within 30 days of the entry of the final judgment or order being appealed. In criminal cases, a defendant can usually give oral notice of appeal, but notices of appeal in criminal cases must be given within 10 days. N.C. R. App. P. 4(a)(1). But see Attachment E. ii) Any cross appeal must be filed within 10 days of the first notice of appeal. N.C. R. App. P. 3(c). iii) A written notice of appeal must include (1) the party taking the appeal; (2) the judgment or order being appealed; and (3) the court to which appeal is taken. N.C. R. App. P. 3(d), 4(b). iv) The notice of appeal must be filed with the clerk of superior court and served on all other parties to the appeal within 30 days of entry of the judgment. N.C. R. App. P. 3(a), 4(c). Proper methods of service are spelled out in Appellate Rule 26, and is not one of them. See MNC Holdings, LLC v. Town of Matthews, 223 N.C. App. 442, 445, 735 S.E.2d 364, 366 (2012); see also Attachment F. 3 Page

4 v) Appendix D to the Appellate Rules contains sample Notices of Appeal. vi) The Appellate Rules Committee has also published a tip sheet for preparing a proper notice of appeal. See Attachment G. c) Some types of cases have special Notice of Appeal rules. i) There are special rules regarding cases involving juveniles. See N.C. R. App. P. 3(b), 3.1, 4(e), 9(a). ii) There are also special rules for appeals from administrative agencies. N.C. R. App. P Attorneys should pay special attention to the Appellate Rules and case law interpreting the rules in those circumstances. iii) There are also special filing concerns for the notice of appeal in Business Court appeals. See Attachment H. d) Certain post-judgment motions and actions can toll a party s deadline for filing and serving a notice of appeal, but beware of pitfalls. i) While notices of appeal generally must be served within 30 days of entry of judgment, there is an exception if the judgment was not served within three days, as prescribed by Rule 58 of the Rules of Civil Procedure. N.C. R. App. P. 3(c)(2). However, the Court of Appeals has strictly limited this exception. See, e.g., Magazian v. Creagh, 234 N.C. App. 511, 759 S.E.2d 130 (2014). To be safe, the better practice is to file the notice of appeal within 30 days after entry of the judgment. See Attachment I. ii) Certain timely post-judgment motions filed pursuant to Rules 50(b), 52(b), or 59 of the Rules of Civil Procedure can toll a party s 30-day deadline for filing a notice of appeal. N.C. R. App. P. 3(c)(3). 4 Page

5 (1) However, the Court of Appeals looks past the label attached by counsel to a post-trial motion. An improper Rule 50, 52, or 59 motion will not toll a party s deadline for filing a notice of appeal. See Attachment J. (2) There is also a split of authority regarding whether a Rule 59 motion tolls the deadline for filing a notice of appeal for anything other than a judgment entered after a trial. See Attachment K. (3) Notably, motions brought under Rule 60 of the Rules of Civil Procedure and motions to reconsider do not toll the deadline for filing a notice of appeal. See Attachment L. e) Resources. i) Appendix A to the Appellate Rules provides a timetable of these and other deadlines. ii) In addition, Smith Moore Leatherwood LLP has prepared a checklist of these and the other deadlines described below. See Attachment M. 3) STOP THREE: TO WHICH APPELLATE COURT MUST MY APPEAL BE TAKEN? a) Most appeals from decisions of North Carolina s trial courts go to the North Carolina Court of Appeals. N.C. Gen. Stat. 7A-27(b). b) Some appeals proceed directly to the Supreme Court. i) Criminal defendants who have been sentenced to death appeal directly to the Supreme Court. N.C. R. App. P. 4(d). Final orders of the Utilities Commission in a general rate case are appealable directly to the Supreme Court. See N.C. Gen. Stat. 7A-29. Many cases from the North Carolina Business Court and certain constitutional cases also go directly to the Supreme Court. Id. 7A- 5 Page

6 27. Business Court cases in particular contain many procedural traps of which practitioners should be aware. See Attachment N. 4) STOP FOUR: WHAT DOCUMENTS SHOULD BE SUBMITTED TO THE APPELLATE COURT? a) The appellate record (a.k.a. the Record on Appeal) contains the lower court documents that the appellate courts review on appeal. i) The Record on Appeal can consist of the following record components: Printed Record on Appeal, Rule 11(c) Supplement, 3 Rule 9(d) Documentary Exhibits, Rule 9(d) Oversized or Tangible Exhibits, Deposition Transcripts, Transcript of the Proceedings Appealed From, and Rule 9(b)(5) Supplement to the Printed Record on Appeal. ii) Not every case will contain every record component. iii) The Appellate Style Manual contains a handy chart summarizing the Record on Appeal components. The Style Manual is an indispensable tool in preparing your record on appeal. Attachment O. b) Transcripts of the proceedings appealed from. i) It is the appellant s responsibility to ensure that a transcript is ordered and prepared. ii) In certain circumstances, failure to order a transcript can result in the dismissal of an appeal. See Attachment P. (1) To ensure that you get a transcript, make sure a reliable See recording is being made in the trial tribunal including when deposition transcript testimony is introduced at trial. See Attachment Q. Before any important hearing in the trial 3 Appeals to the appellate courts from administrative agencies or the Office of Administrative Hearings have an analogue to the Rule 11(c) Supplement called the Rule 18(d)(3) Supplement. 6 Page

7 tribunal, ensure that there is a live court reporter present or that an audio recording is being made. iii) In civil cases, the appellant must sign a contract with a court reporter within 14 days after filing the notice of appeal. N.C. R. App. P. 7(a)(1). The contract must be filed with the clerk of superior court and served on the court reporter and all other parties. N.C. R. App. P. 7(a)(1); see also Style Manual s Statement of Transcript Arrangement. See Attachment R. The appellee has the opportunity to designate additional portions of the proceedings to be transcribed within 14 days after service of the appellant s contract. N.C. R. App. P. 7(a)(1). (1) Appeals in criminal cases generally follow the same rules. N.C. R. App. P. 7(a)(2). However, when there is an order establishing the defendant s indigency, the clerk orders the transcript. N.C. R. App. P. 7(a)(2). iv) The transcriptionist has 60 days to prepare the transcript in civil cases and ordinary criminal cases, 65 days in indigent criminal cases, and 120 days in death penalty cases. N.C. R. App. P. 7(b)(1). Except in death penalty cases, the trial court has the authority to extend the time for the court reporter to produce the transcript by an additional 30 days. N.C. R. App. P. 7(b)(1). Any additional extensions transcript extensions must be obtained from the appellate courts. N.C. R. App. P. 7(b)(1). It is the appellant s duty to obtain extensions of time for the court reporter. v) The court reporter must deliver the completed transcript to the parties and certify to both the trial court and the appellate court that the transcript has been delivered. N.C. R. App. P. 7(b)(2). 7 Page

8 When the record on appeal is filed, the appellant must notify the court reporter, who then will file the transcript with the appellate court. N.C. R. App. P. 7(b)(2). vi) If a transcript is not ordered, parties can provide a narration of the proceedings. N.C. R. App. P. 9(c). vii) Deposition transcripts are treated differently. Those should simply be submitted in triplicate to the appellate court along with the other record filings. viii) Appendix B to the Appellate Rules and the Style Manual provide additional guidance on transcripts. c) The printed Record on Appeal. i) The printed record, which contains the key documents for the appeal, are submitted by the appellant to the appellate court and reproduced in bound volumes by the Appellate Court s Printing Office. ii) In civil cases, the printed record must contain: (a) an index, (b) a statement identifying the trial court judge and appealing party and evidence of personal jurisdiction, (c) the pleadings, (d) a transcript statement (if a transcript is submitted) or narrative summary, (e) a statement regarding any Rule 9(d) Documentary Exhibits and/or Rule 11(c) Supplement submitted to the appellate courts, (f) the jury instructions or requested instruction (if applicable), 8 Page

9 (g) the verdict form or trial court s findings of fact and conclusions of law (if applicable), (h) the judgment or order being appealed, (i) the notice of appeal (and all documents relating to the perfecting of the appeal), (j) other necessary papers filed in the trial court, (k) proposed issues on appeal, and (l) any order regarding a pro hac vice motion. N.C. R. App. P. 9(a)(1). The record must also include a statement containing identifying information for all counsel of record. N.C. R. App. P. 9(b)(4). Examples of most of these documents can be found in the Appellate Style Manual. iii) Records in administrative appeals generally contain the same documents. N.C. R. App. P. 9(a)(2), 18(c). iv) Records in criminal cases contain the analogous documents. N.C. R. App. P. 9(a)(3). d) Rule 9(d) Documentary Exhibits are reproduced by counsel for the appellate court. i) Like the printed record on appeal, the Rule 9(d) Documentary Exhibits must contain an index and separate appellate pagination. ii) Unlike the printed record on appeal, the Rule 9(d) Documentary Exhibits are reproduced by the appellant, who submits three copies of the exhibits to the appellate courts. (1) Trial court and hearing exhibits are typically submitted to the appellate courts in the Rule 9(d) Documentary Exhibits. (2) This route can be a cost-saving measure. 9 Page

10 (3) This process also provides counsel the ability to include color documents and oversized exhibits. e) Rule 11(c), 18(d)(3), and 9(b)(5) supplements are reproduced by counsel for the appellate court. i) Documents appropriate for any of these supplements are submitted to the appellate court in a separate volume, with an index, in triplicate. 5) STOP FIVE: HOW DO THE PARTIES REACH AGREEMENT ON THE RECORD ON APPEAL? a) The parties are responsible for settling the Record on Appeal. i) Judicial settlement of the Record on Appeal is both limited and disfavored. See N.C. R. App. P. 11. b) The appellant serves a Proposed Record on Appeal. i) Unless the parties agree to the record beforehand, an appellant must serve a proposed record on appeal within 35 days after the transcript is delivered (or 35 days after the notice of appeal is filed if there is no transcript). N.C. R. App. P. 11(a). c) An appellee s objections and amendments or approval of the Proposed Record. i) An appellee can either approve the proposed record or serve objections and amendments within 30 days. N.C. R. App. P. 11. d) Record Settlement. i) After objections and amendments are served, the parties have 10 days to reach agreement on the appellate record. N.C. R. App. P. 11. ii) If the parties disagree on whether a trial tribunal document should go into the appellate record, that document is usually placed in a separately indexed and paginated Rule 11(c) Supplement. 10 Page

11 (1) The rules on judicial settlement were changed several years ago. Now, a party can include in the Rule 11(c) Supplement any document that was filed, served, submitted for consideration, admitted, or made the subject of an offer of proof. N.C. R. App. P. 9(d), 11(c). iii) The appellant must file the settled record on appeal with the appellate court within 15 days after the record has been settled. N.C. R. App. P. 12(a). At that time, the appellant must also pay the docketing fee. N.C. R. App. P. 12(b). e) There are specific formatting requirements for the Record on Appeal. i) Each record on appeal component should contain an index/cover page and separate appellate pagination. N.C. R. App. P. 9(b)(4). ii) Pleadings in the printed record on appeal generally should be in chronological order and should contain the date of filing or entry. N.C. R. App. P. 9(b). f) Resources. i) Appendix C to the Appellate Rules provides additional guidance for preparing the record on appeal. ii) For these and other issues, we recommend consulting the Style Manual prepared by the Appellate Rules Committee. 6) STOP SIX: WHAT GOES IN THE BRIEFS? a) Parties must file their briefs in accordance with the deadlines. i) An appellant must file and serve a brief within 30 days after the appellate court has mailed the printed record. N.C. R. App. P. 13(a)(1). Notably, the appellant does not get 3 extra days after the mailing of the printed record. N.C. R. App. P. 13(a)(1). The appellee must file and serve a brief within 30 days after service of the 11 Page

12 appellant s brief. N.C. R. App. P. 13(a)(1). Parties are given extra time in death penalty cases. N.C. R. App. P. 13(a)(2). b) Parties file their briefs with the appellate court. i) Briefs (and other documents) can be filed electronically or by mail. N.C. R. App. P. 26(a). ii) If filed electronically, the filing attorney must certify that he or she is authorized to file on behalf of any other attorneys. See N.C. R. App. P. 33(b). See Attachment S. iii) When filing its opening brief, an appellant should also file the completed Appeal Information Statement as provided by the Court, see N.C. R. App. P. 41, and should be sure to also timely file the Consent to Mediation form. iv) Briefs must also be served on all other parties. N.C. R. App. P. 26(b). c) The briefs must be formatted correctly. i) Pages of the record can be cited as (R p ). Pages of a Rule 11 supplement can be cited as (R S p ). Pages of the transcript can be cited as (T p ). N.C. R. App. P. 9(b)(4). ii) Appellate Rule 26 as well as Appendix B and Appendix E to the Appellate Rules provide additional details and guidance for the format and style of briefs and other papers filed with the appellate courts. iii) Again, we recommend consulting the Style Manual prepared by the Appellate Rules Committee for formatting guidance. d) The appellant files the first brief. i) An appellant s brief must contain a cover page, a statement of the issues on appeal, a statement of the procedural history of the case, a 12 Page

13 statement of the grounds for appellate review, a statement of the facts, an argument, a conclusion, identification of counsel, and a certificate of service. N.C. R. App. P. 28(b). ii) An appellant may be required to file an appendix to the brief. See N.C. R. App. 28(d). iii) A party s opening brief in the Court of Appeals is limited to 35 pages (if using non-proportionally spaced type like Courier New) or 8,750 words (if using a proportionally spaced type like Times New Roman, 14-point or larger). N.C. R. App. P. 28(j). There are no length limitations in the Supreme Court. iv) The Court of Appeals has prepared a Legal Standards Database to assist with providing standards of review and general statements of law. e) An appellee can file a response brief. i) An appellee s brief has different requirements than an appellant s brief. N.C. R. App. P. 28(c). ii) An appellee can also supplement the record on appeal if necessary. N.C. R. App. P. 9(b)(5)(a). f) An appellant may file a reply brief. i) The rule regarding reply briefs was changed so that now an appellant can file a reply brief as of right within 14 days after the appellee s brief is served. N.C. R. App. P. 28(h). Any reply brief must be limited to a concise rebuttal of arguments set out in the appellee s brief and shall not reiterate arguments set forth in the appellant s principal brief. Id. ii) Reply briefs in the Court of Appeals are limited to 15 pages or 3,750 words. N.C. R. App. P. 28(j). 13 Page

14 7) STOP SEVEN: WILL THERE BE ORAL ARGUMENT? a) Most cases in the Court of Appeals are not argued orally. i) The parties will receive a notice from the Court of Appeals identifying the date that the case will be heard. That notice will either set the case for oral argument or direct the parties not to appear for oral argument. See N.C. R. App. P. 30(f). b) Oral argument is almost always ordered in cases before the Supreme Court of North Carolina. i) The Supreme Court will send a notice giving you the date and time to appear for oral argument and will ask you to return a statement to the clerk stating who will appear for oral argument. c) Only attorneys who have personally signed the brief can participate in oral argument. N.C. R. App. P. 33(a). An electronic signature on an electronically filed brief is sufficient. d) Resources. i) The Appellate Rules Committee has prepared helpful guides for the oral argument process at both the Supreme Court and the Court of Appeals as well as a chart comparing the two. See Attachment T, Attachment U, and Attachment V. e) Secured Leave. i) Attorneys who are unable to participate in oral argument during a certain time should designate a secure leave period at least 90 days before the beginning of the period. See N.C. R. App. P ) STOP EIGHT: WHAT HAPPENS NEXT? a) The court will issue its decision. i) Generally, the Court of Appeals attempts to issue its decision within 90 days. 14 Page

15 b) Mandate. i) 20 days after an opinion is filed, the appellate court s mandate will issue automatically. N.C. R. App. P. 32(b). ii) A calculation of the costs, and the party obligated to pay them, will be included with the mandate. N.C. R. App. P. 35(b). Appendix F to the Appellate Rules contains more information about fees and costs associated with the appellate process. c) Parties can petition the appellate courts for rehearing. N.C. R. App. P. 31. i) There is no procedure for en banc rehearing by the entire Court of Appeals. d) From a Court of Appeals decision, parties can either appeal or petition for discretionary review to the Supreme Court of North Carolina. N.C. R. App. P. 14, 15. i) However, no petition for discretionary review can be made in postconviction proceedings under Chapter 15A, Article 89 or in valuation of exempt property under Chapter 1C. ii) A party must appeal/petition to the Supreme Court within 15 days after the mandate issues from the Court of Appeals. Therefore, including the mandate, a party has 35 days after the Court of Appeals opinion is issued to appeal/petition to the Supreme Court. e) There is no additional record settlement process for sending the record on appeal from the Court of Appeals to the Supreme Court. i) Instead, the record from the Court of Appeals is automatically sent to the Supreme Court. f) However, parties do file new briefs with the Supreme Court. N.C. R. App. P. 14(d) & 15(g). 15 Page

16 ATTACHMENT A

17 You Can t Have One Without The Other: Court of Appeals Dismisses Notice of Appeal That Designates Interlocutory Order But Not Final Judgment ncapb.com/2016/04/25/you-cant-have-one-without-the-other-court-of-appeals-dismisses-notice-of-appeal-that-designates-interlocut April 25, 2016 The state appellate rules are clear: your notice of appeal must designate the judgment or order from which appeal is taken. N.C. R. App. P. 3(d). So, if you want to appeal an interlocutory order, you identify it in the notice of appeal, and you have complied with the rule, right? Apparently not. In the unpublished opinion of Majerske v. Majerske, the Court of Appeals held that an appellant seeking to challenge an interlocutory order after entry of a final judgment must also designate the final judgment in the notice of appeal to confer appellate jurisdiction. The holding further complicates an already complicated question in North Carolina appellate practice: what, if anything, must the notice of appeal say in order to confer appellate jurisdiction over a given order? A party s ability to challenge an interlocutory order after a final judgment is entered is based on N.C. Gen. Stat , which states: Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment. Id. Our state appellate courts first reference to occurred in 1950 when the Supreme Court mentioned in passing that a non-appealable interlocutory order involving the merits and necessarily affecting the judgment could be reviewable on appeal from a final judgment pursuant to Veazey v. City of Durham, 57 S.E.2d 377, 383, 231 N.C. 357, 364 (1950); see also City of Raleigh v. Edwards, 234 N.C. 528, 531, 67 S.E.2d 669, 672 (1951) (dismissing nonappealable interlocutory order, but noting that the appellant could obtain review of the interlocutory order under in any future appeal after entry of a final judgment). For almost four decades, eluded any substantive attention from our appellate courts. Then, in 1987, the Court of Appeals dismissed a party s challenge to an earlier-entered interlocutory personal jurisdiction order, appealed after entry of final judgment. Gualtieri v. Burleson, 84 N.C. App. 650, , 353 S.E.2d 652, (1987). In Gualtieri, the appellant s notice of appeal designated the final judgment, but did not include a specific reference to the earlier interlocutory order on personal jurisdiction. The Gualtieri court held that while does provide that interlocutory orders affecting a judgment appealed from can be reviewed with the judgment, that statute applies only to interlocutory orders that are not [immediately] appealable. Id. (citing Veazy). Because the personal jurisdiction order in Gualtieri had been subject to immediately appellate review under 1 277(b), the Gualtieri court held that did not apply and dismissed the appeal based on the appellant s failure to specifically designate the interlocutory order in the notice of appeal. Surprisingly, neither the text of nor Veazy say that applies only to interlocutory orders that are not immediately appealable. Substantial right jurisprudence is chaotic enough without having to undertake that analysis to determine whether a notice of appeal is effective under to cover earlier orders. Regardless, any criticism of the Gualtieri analysis is likely now water under North Carolina s appellate bridge. In 1999, the North Carolina Supreme Court in Floyd stated in dicta (citing Gualtieri) that applies only to 1/4

18 interlocutory orders which are not immediately appealable. Charles Vernon Floyd, Jr. & Sons, Inc. v. Cape Fear Farm Credit, ACA, 350 N.C. 47, 51, 510 S.E.2d 156, (1999), abrogated on other grounds by Dep t of Transp. v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999). In any event, the Supreme Court in Floyd expressly reaffirmed that an appellant is still entitled to appellate review pursuant to of any non-appealable interlocutory order not specifically mentioned in the notice of appeal as long as the notice of appeal designates the trial court s final judgment. After Floyd, the Court of Appeals provided sage advice on crafting notices of appeal challenging interlocutory orders. Although nonappealable interlocutory orders can sometimes be reviewed upon appeal of a final judgment the better practice without doubt would be to designate each order appealed from in an appellant s notice of appeal. Wells v. Wells, 132 N.C. App. 401, 405, 512 S.E.2d 468, 471 (1999) (emphasis added). In 1999, the Court of Appeals adopted a three-part test for utilizing to exercise review of interlocutory orders not specifically referenced in a party s notice of appeal from a final judgment, which has been used by the Court of Appeals ever since: 1. the appellant must have timely objected to the order; 2. the order must be interlocutory and not immediately appealable; and 3. the order must have involved the merits and necessarily affected the judgment. Gaunt v. Pittaway, 135 N.C. App. 442, 445, 520 S.E.2d 603, 606 (1999). See also, e.g., Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 641, 535 S.E.2d 55, 59 (2000); Yorke v. Novant Health, Inc., 192 N.C. App. 340, 666 S.E.2d 127 (2008). In short, this brief history lesson explains how interlocutory orders that are not specifically designated in the notice of appeal can still be reviewed by the appellate courts under Based on this history, you might think that an interlocutory order that is specifically designated in the notice of appeal would be reviewable by the appellate courts on appeal from a final judgment under Appellate Rule 3. Under Majerske, that is no longer enough. Majerske is an unpublished family law opinion, but its holding has broad application to all interlocutory appeals from final judgments. In Majerske the trial court in July 2013 entered an alimony modification order which the appellant did not immediately appeal. In December 2014, the trial court entered two custody and child support orders resolving all pending matters in an action i.e., the final judgment. Within 30 days of entry of the December 2014 orders, Plaintiff filed a notice of appeal specifically designating and seeking appellate review of the July 2013 alimony order. Plaintiff s notice of appeal, however, did not specifically reference the December 2014 orders that constituted the final judgment in the trial court. On appeal, the Plaintiff statement of appellate jurisdiction acknowledged that the July 2013 alimony modification order was interlocutory when it was entered, but contended that entry of the December 2014 orders made the July 2013 alimony modification order a final judgment. The Court of Appeals called this an incorrect statement of law, explaining that the final judgment is the one which disposes of the cause as to all parties, leaving nothing to be judicial determined between them in the trial court. (emphasis in the original). 2/4

19 I appreciate the Court of Appeals attempt to clarify the difference between judgments and orders. Generally speaking, there should be one final judgment in every case that arises when the trial court enters an order resolving all the claims as to all parties. While earlier interlocutory orders become final (and hence appealable) once a final judgment is entered, those interlocutory orders are not the final judgment. Rather, they become part of the final judgment package that the appellate court is entitled to review now that the entire case is finished in the trial court. However, more than a fair share of appellate opinions reference interlocutory orders as judgments. Indeed, this meshing of the terms orders and judgments is found in the text of the Appellate Rules. See, e.g., Appellate Rule 3(c)(1) & (2) (stating that a party may file a notice of appeal within 30 days after entry of judgment, but providing no time period for appealing from entry of an appealable order, leading the appellate courts to assume judgment means judgment or order here). My concern regarding Majerske begins with the statement that when appealing from a final judgment, however, an appellant must reference that judgment in its notice of appeal because an appellate court ordinarily obtains jurisdiction only over the rulings specifically designated in the notice of appeal as the ones from which the appeal is being taken. According to the Court of Appeals, because N.C. Gen. Stat. 7A-27 allows appeals from any final judgment, the failure to specifically reference the December 2014 orders/final judgment in Plaintiff s notice of appeal deprives the appellate courts of jurisdiction under 7A-27 even though the interlocutory order which the appellant was challenging on appeal is specifically referenced in the notice of appeal. Majerske relies heavily on the language of 7A-27 in determining what information the notice of appeal was required to contain. However, in 1989 the General Assembly repealed 1-279, adopted , and amended several appellate statutes to provide that the Rules of Appellate Procedure rather than the appellate statutes governed the time, manner, and effect of noticing an appeal. Under Appellate Rule 3(d) a notice of appeal is sufficient if it designates the judgment or order from which appeal is taken. While I agree that the better practice is to designate both the final judgment and the interlocutory order in your notice of appeal, it is not clear to me that specifically naming the final judgment in your notice of appeal is a jurisdictional requirement under Appellate Rule 3. Moreover, our appellate courts have applied a functional equivalent analysis to Appellate Rule 3(d) s requirements. For example, in Smith v. Indep. Life Ins. Co., 43 N.C. App. 269, , 258 S.E.2d 864, 867 (1979), the Court of Appeals noted that Appellate Rule 3(d) s Drafting Committee commentary indicated that only the most misleading of errors should led to dismissal of an appeal. In refusing to dismiss an under-inclusive notice of appeal, the Smith court favorably quoted federal authority stating that the rule is now well settled that a mistake in designating the judgment, or in designating the part appealed from if only a part is designated, should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not mislead by the mistake. It is unlikely that the appellee was misled by the notice of appeal in Majerske. The appellee did not even file an appellate brief. In addition, Majerske moves our appellate courts another step away from the liberal construction of notices of appeal afforded by most other appellate systems. Majerske, although unpublished, is a warning shot for appellate practitioners. It announces an important new requirement for notices of appeal that practitioners should follow. If after entry of a final judgment you want to challenge on appeal an earlier entered interlocutory order, you must designate the final judgment in your notice of appeal. The best practice is also to designate the interlocutory order in your notice of appeal. What are your thoughts about Majerske? Ideas on how you would comply with Majerske where the document that constituted the final judgment was not an order of the court for example, a party s voluntary dismissal of the 3/4

20 remaining claims and parties? Let me know in the comments below. Beth Scherer h/t to Gary Beaver for bringing this opinion to my attention. Copyright 2016 North Carolina Appellate Practice Blog 4/4

21 ATTACHMENT B

22 Attorneys Fees are Ancillary, and That s Final ncapb.com/2013/06/13/attorneys-fees-are-ancillary-and-thats-final/ June 13, 2013 Does a pending motion for attorneys fees make the otherwise final substantive order interlocutory, or can it be immediately appealed? I wrote a few months ago about the Court of Appeals attempt to add some clarity to this question in Hausle v. Hausle. Today, the Supreme Court declared an even simpler rule in Duncan v. Duncan. I ll let Justice Newby s words speak for themselves: Today we clarify the effect of an unresolved request for attorney s fees on an appeal from an order that otherwise fully determines the action. Once the trial court enters an order that decides all substantive claims, the right to appeal commences. Failure to appeal from that order forfeits the right. Because attorney s fees and costs are collateral to a final judgment on the merits, an unresolved request for attorney s fees and costs does not render interlocutory an appeal from the trial court s order. This bright-line rule goes a long way to cut through the confusion on this issue. Note what is missing from the analysis: you do NOT have to analyze whether the attorneys fees issue is dependent on or ancillary to the final merits order. Also, you do NOT need to seek a Rule 54(b) certification because the merits order is final by itself. This is really the heart of the opinion. Once you accept that the merits order is final, then it follows that a pending attorneys fees motion does not bar an appeal and a Rule 54(b) certification [of the merits order] is superfluous. The opinion leaves some open questions for the bar, of course: 1. In what circumstances can the trial court hear the motion for attorney s fees after a notice of appeal has been taken from the merits order? Analyzing this question probably begins with N.C. Gen. Stat : When an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from. In other words, the Hausle court s inquiry into the relatedness of the merits order and the attorney s fee motion may be alive and well at least in this context. 2. In what circumstances is an order requiring the payment of attorney s fees final if there are other issues relating to attorney s fees still outstanding? In other words, when is an order requiring the payment of attorney s fees a final judgment on the merits? Finally, a practice tip. The drawback to the ruling today is that some cases will indeed be appealed twice: once on the merits, and then again later on attorney s fees. How can you get around this piecemeal appeal process? If you get the call from the Judge s chambers to draft an order on the merits, consider asking the trial court not to enter any 1/2

23 written order until the issue of attorney s fees can be resolved at the same time. Matt Leerberg Copyright 2016 North Carolina Appellate Practice Blog 2/2

24 ATTACHMENT C

25 Ketchup, Catsup, Catch-Up: A Hodgepodge Of Important Appellate Decisions We Were Behind In Sharing ncapb.com/2016/02/01/ketchup-catsup-catch-up-a-hodgepodge-of-important-appellate-decisions-we-were-behind-in-sharing/ February 1, 2016 Holidays, snowstorms, vacations, workloads mixed in with the winter blahs have resulted in us getting a little behind on our blogging duties. The appellate courts, however, have not suffered from the same maladies, issuing several important appellate-practice-and-procedure decisions of late. This special Catch-Up post hopefully gets us back on track for the New Year. Rule 54(b) Certification and Peacock Farms. The question presented in Peacock Farms was whether a Rule 54 certification statement (i.e., a statement by the trial court judge that an interlocutory order is final as to one of more claims or parties, and that there is no just reason for delaying an appeal) must be contained in the same order the parties are seeking to appeal? Or, is it acceptable for a trial judge to issue a separate piece of paper that certifies an earlier order for appeal? We previously blogged about Peacock Farms when the Court of Appeals handed down a split decision. At the time, we noted several practical concerns with the text of N.C. R. Civ. P. 54(b) and how Rule 54 certification works in practice. The issue was so intriguing that I attended the Peacock oral argument at the Supreme Court. Surprisingly, both parties argued that the trial court s Rule 54(b) certification which was contained in an order separate from the order being appeal was sufficient to confer Rule 54(b) appellate jurisdiction. The Supreme Court disagreed. On 18 December 2015, the North Carolina Supreme Court issued a per curium opinion in BB&T v. Peacock Farms adopting the Court of Appeals majority decision without further elaboration. Therefore, the rule in North Carolina is this: no Rule 54(b) appeal lies from an order that does not itself contain a Rule 54(b) certification. The Peacock Farms decision does not address whether a trial court can amend an earlier order to add a Rule 54(b) certification. There is language in the majority opinion suggesting that such an amended order would satisfy Rule 54(b), but it might be argued otherwise. An appeal taken from an amended order would also raise certain timing questions related to the notice of appeal. See our prior blog post. Rule 54(b) Tip: For the time being, the safest route is to ensure that the order, when it is entered originally, contains the necessary Rule 54(b) certification language. Therefore, start thinking about whether you might want to seek Rule 54(b) certification long before the written order is entered. Service of Judgments by the Trial Court, Actual Notice, and the Correct Procedure to Appeal a Trial Court Order that Dismiss an Appeal: In E. Brooks Wilkins Family Medicine v. WakeMed, the trial court entered orders on 25 April 2014 dismissing plaintiff s claims as a discovery sanction. The orders contained a certificate of service signed by the trial court coordinator ( TCC ) stating that she had served the order on all the parties. The notice of appeal was served thirty-three days after the filing and the TCC s service of the orders. Under its Appellate Rule 25 authority, the trial court dismissed Plaintiff s appeal of the discovery sanctions orders, finding that Plaintiff had failed 1/3

26 to meet the 30-day deadline for filing and serving its notice of appeal under Appellate Rule 3(c)(1). On appeal, the Plaintiff argued that under N.C. R. Civ. P. 58 which is referenced in Appellate Rule 3(c) service of the judgment must be made by a party to start the notice of appeal clock. According to the Plaintiff, because the TCC was not a party to the action, the TCC s service of the discovery sanctions orders was ineffective to trigger the 30-day notice of appeal deadline. The Wilkins Court rejected this argument holding that the trial court has the inherent authority to serve its own orders. Plaintiff also contended that the TCC s service was ineffective because her certificate of service did not specify the date on which the documents were served and did not specify the means of service as required by N.C. R. Civ. P. 5. The Court of Appeals refused to disturb the trial court s finding that certificate of service s date line (i.e., This, the 25 th of April ) established that the TCC served the order on April 25. As to Plaintiff s contention that the certificate of service did not properly demonstrate the means of service where it stated that service was effected by mailing and/or hand delivering a copy, the Court declined to reach this argument. Instead, the Court found, pursuant to cases like Manone and Magazian, that Plaintiff had actual notice of a final order within 3 days of its entry. Even if the TCC s service had been defective, actual notice triggers Appellate Rule 3(c)(1) s deadline for filing the notice of appeal 30 days after the entry of the judgment. [Side Note: Practically, I do not believe it mattered whether the TCC mailed or hand delivered the order. Appellate Rule 3(c) expressly exempts Notice s of Appeal deadlines from the additional time for filing after service by mail, and a document is considered served when it is placed in the mail.). In Wilkins, Plaintiff s counsel submitted an affidavit stating that the order had been filed on Friday, April 25, and that counsel had not received the discovery sanctions order by Sunday, April 27 two days after the discovery sanctions order has been entered. The Court of Appeals pointed out that under Magazian, the three day period [for receiving actual notice of the order] excludes weekends and court holidays. Because Plaintiff s counsel did not present any evidence that they had not received the order between Monday April 28 and Wednesday, April 30, the Court of Appeals held that the requirements of Appellate Rule 3(c)(1) were satisfied and therefore, the notice of appeal was due 30 days from the entry of the order. Accordingly, the Court of Appeals dismissed Plaintiff s challenge to the discovery sanctions order as untimely. [Remember when I told you to ignore Appellate Rule 3(c)(2)? Ditto.]. The Court of Appeals also recognized a split in authority regarding the proper method for seeking appellate review of a trial court s order dismissing an appeal: either a notice of appeal or a petition for writ of certiorari. Following the well-established rule that when decisions of the Court of Appeals conflict, the earlier of those decisions is the controlling precedent, the Wilkins Court held that no appeal of right lies from order dismissing an appeal. Instead, the party can only seek appellate review by filing a petition for writ of certiorari. **Full disclosure: Smith Moore Leatherwood represented certain Appellees in the above appeal. No Appeal Filed. Petition for Writ of Certiorari Denied. Case Closed? Not So Fast! Finally, Carpenter v. Carpenter involved a plaintiff s appeal of, among other things, an equitable distribution order. On appeal, Plaintiff contended that the trial court erred in not classifying an investment account as entirely marital property, and by entering an unequal distribution in defendant s favor. On the other hand, the defendant-appellee contended that the trial court s equitable distribution order incorrectly classified and distributed property that the defendant managed for the parties minor child. The defendant-appellee, however, had not filed a cross-appeal from the final judgment, which was necessary to argue these issues on appeal. Moreover, before filing his appellee s brief, the defendant-appellee had filed a petition for writ of certiorari asking the court to issue a writ and review these issues, despite his failure to file a cross-appeal. An earlier panel of the Court of Appeals, however, denied the petition. 2/3

27 Rather than giving up, appellee s counsel adopted the adage, when you reach the end of your rope, tie a knot and hang on. In his appellee s brief, defendant s counsel raised, for the first time, a challenge to the trial court s jurisdiction to enter the equitable distribution order. According to the defendant, the minor child who was the legal owner of an account affected by the equitable distribution order was a necessary party to the litigation. Because the minor child had not been joined in the litigation, defense counsel maintained that the portion of the trial court order that distributed funds from the minor child s account was void for lack of jurisdiction. While plaintiff objected that the earlier panel s denial of defendant s certiorari petition resolved the issue, the Court of Appeals disagreed. Defendant s certiorari petition had only sought review of whether the trial court had erred in classifying the minor s account as marital property not whether the trial court had jurisdiction to enter the order without joining the minor child as a necessary party. Thus, the Court of Appeals concluded that the prior panel had not addressed the jurisdictional issue when it denied Defendant s certiorari petition, and the subsequent panel was free to review it. Because a dispute regarding a trial court s subject matter jurisdiction is an issue that may be raised at any time even for the first time on appeal the appellate court was required to determine the issue. The Court of Appeals ultimately held that because the minor child was required to be joined as a necessary party, the trial court did not have jurisdiction to enter the portion of the equitable distribution order affected the minor child s account. Without jurisdiction, the portion of the trial court s equitable distribution order classifying and distributing property from the minor child s account was void. Accordingly, that portion of the equitable distribution order was vacated and remanded no appeal necessary! The Carpenter reasoning reminds me of the bootstrapping / pendent appellate jurisdiction arguments that occasionally pop up in interlocutory appeals. See Church v. Carter, 94 N.C. App. 286, 288, 380 S.E.2d 167, 168 (1989) (Although subject matter jurisdiction is not usually subject to interlocutory review, since defendant also has challenged the trial court s power to exercise personal jurisdiction over him, we must, at this time, decide the issue he has raised concerning subject matter jurisdiction.); N.C. Gen. Stat (subject matter jurisdiction prerequisite to court s exercising personal jurisdiction). While this was not an interlocutory appeal, it is a reminder that subject matter jurisdiction is one of the few civil issues that the appellate courts are willing to review despite notice of appeal and waiver problems. Hopefully we are up-to-date on some of the more interesting appellate issues that developed over these past few weeks. Know of any others? Let us know in the comments below. Beth Scherer Copyright 2016 North Carolina Appellate Practice Blog 3/3

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29 How Do You Appeal a Business Court Designation, Anyway? ncapb.com/2015/11/13/how-do-you-appeal-a-business-court-designation-anyway/ November 13, 2015 A few months ago, Hanesbrands Inc. sued a former executive to recover the value of certain stock units and options because of her alleged defection to a competitor. Hanesbrands filed a Notice of Designation so that the case could proceed in the North Carolina Business Court because it involves securities law and the law governing corporations. The Chief Justice of the Supreme Court agreed and designated the case as mandatory complex business, proceeding before Chief Judge Jim Gale. The executive filed an opposition to the Business Court designation, arguing, among other things, that the case involved Maryland substantive law. Judge Gale overruled the opposition by written Order, holding that the designation was not improper just because the securities issues arise under Maryland and not North Carolina law. The issue is an interesting one. The statute allows Business Court designation for [d]isputes involving securities, including disputes arising under Chapter 78A of the General Statutes. N.C. Gen. Stat. 7A What happens when the substantive law governing those disputes is the law of another state, or federal law? Yesterday, the former executive appealed the Order on Opposition that kept the case in Business Court by noticing appeal to the Supreme Court. Now what happens? Good question, and one to which there is no easy answer. Before the passage of the Business Court Modernization Act, an appeal from a designation decision was taken directly to the Chief Justice of the Supreme Court. Now, the appeal is taken in accordance with G.S. 7A-27(a). Section 7A-27(a), in turn, simply allows for an appeal directly to the Supreme Court from final judgments and certain interlocutory orders entered in Business Court cases. A designation decision is not a final judgment. In fact, to be immediately appealable at all, it would have to be an order that [a]ffects a substantial right. N.C. Gen. Stat. 7A-27(a)(3)(a). Presumably the General Assembly wanted the issue of Business Court designation to be decided before the entire litigation is conducted, but the statute leaves it to the Supreme Court to decide whether the designation order affects a substantial right. The lack of clarity does not end there. By statute, the procedures governing any appeal including an appeal from a designation decision are provided by the Rules of Appellate Procedure. N.C. Gen. Stat But those procedures are detailed, and the process is slow. Did the General Assembly really intend for appeals from designation decisions to take a year, and involve record compilation, full briefing, and oral arguments? If not, what procedures are the parties supposed to follow? Meanwhile, may the Business Court proceed with the case, or is the matter stayed by N.C. Gen. Stat ? I am hopeful that the Supreme Court will provide some answers to these questions. Stay tuned. Matt Leerberg Copyright 2016 North Carolina Appellate Practice Blog 1/1

30 ATTACHMENT E

31 Can You Track Me Now? Written Notice of Appeal Required in Satellite-Based Monitoring Appeals ncapb.com/2011/11/03/can-you-track-me-now-written-notice-of-appeal-required-in-satellite-based-monitoring-appeals/ November 3, 2011 When doing criminal defense work, practitioners routinely give oral notice of appeal and rarely use written notices of appeal. This practice is sufficient for most cases but presents a dangerous trap for the unwary when a civil issue arises in a criminal appeal. In North Carolina, criminal defendants who are convicted of certain offenses may be ordered to enroll in satellite-based monitoring ( SBM ). If you are not sure what that is, check out the movie Disturbia. In May 2010, the North Carolina Court of Appeals released an opinion in State v. Brooks which held that SBM hearings are civil in nature rather than criminal. Instead of being a punishment, SBM is part of a civil regulatory scheme. As a result, an oral notice of appeal from a SBM order is insufficient to confer jurisdiction on the Court of Appeals to hear a challenge to the SBM order. In other words, the provision in Appellate Rule 4(a)(1) allowing oral notices of appeal in criminal cases does not apply to SBM hearings. Rather, those hearings fall within Appellate Rule 3 s requirement for a written notice of appeal. Attorneys representing criminal defendants should be aware of this distinction and file a written notice of appeal whenever SBM rulings are involved. The Court of Appeals has been temporarily granting reprieve to attorneys who missed the news that written notices of appeal are required. In State v. Stokes, released earlier this week, the defendant was convicted of various sex offenses and ordered to enroll in SBM for the rest of his natural life. The defendant failed to file a written notice of appeal but sought review of the issue by petition for writ of certiorari. The Court of Appeals agreed to reach the issue by certiorari because the Stokes SBM order had been entered within three months of the Brooks decision. The Court of Appeals reached a similar result in both State v. Mann and State v. Carter. Unfortunately, that window of reprieve will probably close quickly. Brooks was released more than a year ago, and the Court of Appeals is less likely to grant certiorari based on oral notices in the future. Copyright 2016 North Carolina Appellate Practice Blog 1/1

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33 Service in the Digital Age: Use of During Appeal ncapb.com/2012/11/20/service-in-the-digital-age-use-of- -during-appeal/ November 20, 2012 I still remember the first I sent, way back in 1995 (to my now-wife). Here we are, 17 years later, and is no longer a novelty. It is the primary way most lawyers do business, structure their workdays, communicate with clients, and even communicate with a co-worker 10 feet away. But the law and the rules are slow to adapt. The North Carolina Rules of Appellate Procedure do not generally allow service of filings. True there are exceptions, such as the Rules embrace of service of electronic filings. N.C. R. App. P. 26(c). But service remains the exception, not the rule. In MNC Holdings, LLC v. The Town of Matthews, the Court of Appeals reaffirmed that is not an acceptable method of service of the Notice of Appeal. (Full disclosure: my firm represented MNC Holdings in this appeal.) In MNC, the Town timely filed a Notice of Appeal from a decision of a trial court on MNC s petition for writ of certiorari regarding a variance petition. The same day, the Town served the Notice of Appeal by . The Town had served certain trial-level documents by , and claimed it was just following the parties earlier course of conduct. Indeed, MNC did not dispute that it had actual notice of the appeal. On MNC s motion to dismiss the appeal for improper service of the Notice of Appeal, the Court of Appeals held that the Town had not properly served the Notice of Appeal by . Rule 3(e) requires service of the Notice of Appeal in a method as provided in Rule 26. Rule 26, in turn, provides for service in accordance with Rule 4 of the Rules of Civil Procedure (i.e., how you serve a Complaint), or by hand delivery or U.S. mail. In the end, the Town s appeal was saved by a different truism about law practice in 2012 that most appellate rules violations are now non-jurisdictional. The Court reiterated that proper filing of the Notice of Appeal is necessary to confer subject matter jurisdiction on the appellate courts, but proper service of the Notice of Appeal is not. Instead, service of the Notice of Appeal is necessary for the court to exercisepersonal jurisdiction over a party. In this case, both parties adequately participated in the appeal, and the Court let the Town s error slide. Don t get too comfortable though the Court warned: [P]ractitioners need be cautioned that non-compliance with the Rules in future cases may result in dismissal and that an appellate discussion of their failure to follow the rules should be unnecessary.... I ll be standing by my if you d like to discuss. Matt Leerberg Copyright 2016 North Carolina Appellate Practice Blog 1/1

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35 Notice Of Appeal Tip Sheet For Civil Appeals To North Carolina s Appellate Courts From Superior And District Court Orders and Judgments Helpful Tips Providing Guidance On The Following Questions: Where Must My Notice Of Appeal Be Filed? When Must My Notice Of Appeal Be Filed? When Can A Deadline For Filing A Notice Of Appeal Be Tolled? What Information Should The Notice Of Appeal Contain? Are There Any Special Requirements For Appeals From The North Carolina Business Court? Are There Any Special Requirements For Juvenile Appeals? Are There Any Other Notice Of Appeal Considerations?

36 Where Must My Notice Of Appeal Be Filed? 1. The Notice of Appeal in civil cases and special proceedings should be filed with the Clerk of the Superior Court, regardless of whether you are appealing a judgment or order from Superior Court or District Court. It should not be filed in the Court of Appeals. N.C. R. App. P. 3(a). 2. Most appeals are made to the North Carolina Court of Appeals. 3. However, certain judgments and orders must be appealed directly to the North Carolina Supreme Court. See N.C. Gen. Stat. 7A-27. These appeals include offenses for which the death penalty is imposed and both final and interlocutory orders that hold a state statute unconstitutional on its face. Section 7A-27 also indicates that most appeals from the North Carolina Business Court should be filed with the North Carolina Supreme Court. (See separate section below on special requirements for Business Court appeals.) 4. Note that when an appeal of right is taken from the North Carolina Court of Appeals to the North Carolina Supreme Court, the notice of appeal must be filed with both the Clerk of the Court of Appeals and the Clerk of the Supreme Court. N.C. R. App. P. 14(a). Note also that this Tip Sheet does not address petitions for discretionary review, which are governed by Appellate Rule 15. When Must My Notice Of Appeal Be Filed? 5. Unless otherwise provided by statute (see, e.g., N.C. Gen. Stat. 7B- 2602), the Notice of Appeal must be filed within 30 days after the entry of a final judgment. N.C. R. App. P. 3(c), (e). Subject to limited exceptions (see Tip 11, below), notice of appeal from an immediately appealable interlocutory order may either be filed within 30 days after the entry of that order or after the entry of a final judgment in the case. 6. The 30-day period for filing the Notice of Appeal is jurisdictional and cannot be extended by the trial court. Henlajon, Inc. v. Branch Highways, Inc., 149 N.C. App. 329, , 560 S.E.2d 598, (2002). 7. The Notice of Appeal must also be served within the 30-day deadline period. Service should be made by hand delivery or mail. is not a proper method for serving the Notice of Appeal. MNC Holdings, LLC v. Town of Matthews, 223 N.C. App. 442, , 735 S.E.2d 364, (2012). 8. If timely notice of appeal is made by one party, any other party can serve notice of cross-appeal within 10 days of that first notice of appeal. N.C. R. App. P. 3. Note that Appellate Rule 18 does not contain a specific 10-day Page2

37 cross-appeal provision. Therefore, the 10-day cross-appeal provision may not apply to administrative appeals governed by Appellate Rule 18. Strezinksi v. City of Goldsboro, 187 N.C. App. 703, 710, 654 S.E.2d 263, 268 (2007) (holding that the timing of appealing a decision of the Full Commission... is governed by section 97-86, not Appellate Rule 3, and that because section does not contain a provision giving an appellee additional time to file a cross-appeal after another party appeals, the notice of appeal is due 30 days after receipt of the order being challenged). 9. A judgment is entered, and the Notice of Appeal clock begins to run, when a judgment is reduced to writing, signed by the judge, and filed with the Clerk of Superior Court. N.C. R. Civ. P Once a trial court enters an order that decides all substantive claims in the litigation, the right to appeal the judgment begins to run immediately. A pending motion for attorneys fees and costs is ancillary or collateral to the final judgment on the substantive merits and does not alter the timeline for appeal of the substantive claims. Duncan v. Duncan, 366 N.C. 544, 546, 742 S.E.2d 799, 801 (2013). 11. Certain interlocutory orders may be immediately appealed within 30 days of entry of the interlocutory order, but the decision to forego an immediate appeal from an interlocutory order does not generally result in waiver of the right to appeal that interlocutory order at the conclusion of the case. State Dep t of Transp. v. Rowe, 351 N.C. 172, 176, 521 S.E.2d 707, (1999). However, there are limited exceptions to this rule. See, e.g., State Dep t of Transp. v. Stagecoach Vill., 360 N.C. 46, 48, 619 S.E.2d 495, 496 (2005) (holding that orders concerning title or area taken of a common area subject to condemnation are immediately appealable and must be immediately appealed). For more information concerning examples of interlocutory orders that may be immediately appealed, see the Appellate Rules Committee s Guide to Appealability of Interlocutory Orders, available at When Can A Deadline For Filing A Notice Of Appeal Be Tolled? 12. The 30-day period for filing a notice of appeal is tolled by the filing of timely motions under North Carolina Rules of Civil Procedure 50(b), 52(b), or 59. N.C. R. App. P. 3(c). 13. A motion for relief from judgment or order under Civil Rule 60 does not toll the time for appeal. Morehead v. Wall, 224 N.C. App. 588, , 736 S.E.2d 798, (2012). Pending motions for attorneys fees or costs Page3

38 also do not toll the time for appeal. Duncan v. Duncan, 366 N.C. 544, , 742 S.E.2d 799, (2013). 14. Appellate Rule 3 provides that when any party timely files a motion under Rule 50(b), 52(b), or 59, the deadline for filing a notice of appeal is tolled as to all parties until entry of an order disposing of the motion and then runs as to each party from the date of entry of the order. Despite this language, at least one Court of Appeals decision has concluded that the time for filing a notice of appeal is tolled only as to the party that filed the post-trial motion. Estate of Hurst ex rel. Cherry v. Moorehead I, LLC, 748 S.E.2d 568, 572 n.2 (N.C. Ct. App. 2013). Therefore, it may be prudent to file a timely post-trial motion or a notice of appeal instead of relying on the tolling effect of another party s motion. 15. Normally, a notice of appeal must be filed within 30 days after entry of the judgment. (See Tip 9, above, discussing the entry of a judgment). However, Appellate Rule 3(c) provides a tolling provision whereby if a party is not served with the judgment within 3 days of its entry, then the appellant s deadline for filing a notice of appeal runs from the date that the judgment is served in accordance with N.C. R. Civ. P. 58. However, relying on Appellate Rule 3(c) s service tolling provision should be avoided if at all possible. Several Court of Appeals opinions hold that the tolling provision of Rule 3(c) does not apply if the party received actual notice that the judgment has been entered. Actual notice may include notification. Magazian v. Creagh, 759 S.E.2d 130, 131 (N.C. Ct. App. 2014). Actual notice may occur whenever anyone in the attorney s firm (e.g., another attorney, paralegal, secretary, receptionist, or other support personnel) becomes aware that the judgment has been entered. See Manone v. Coffee, 217 N.C. App. 619, 623, 720 S.E.2d 781, 784 (2011). Finally, when determining whether a party received actual notice of the judgment, the court excludes weekends and court holidays when determining whether actual notice occurred within three days of entry of the judgment. Magazian v. Creagh, 759 S.E.2d 130, 131 (N.C. Ct. App. 2014). In other words, if actual notice occurs within 3 business days of entry of the judgment, the appellant cannot rely on the service tolling provision of Appellate Rule 3. Page4

39 What Information Should The Notice Of Appeal Contain? 16. Generally, the Notice of Appeal must: Contain the name of the party taking the appeal; Designate the judgment or order being appealed from; Designate the court to which appeal is being taken; Be signed by the counsel of record for the appealing party; and Be served under Appellate Rule Civil notices of appeal must always be in writing. N.C. R. App. P Generally, notice of appeal in a criminal matter may be given orally at trial. N.C. R. App. P. 4(a)(1). However, if you are representing a criminal defendant in a satellite-based monitoring hearing or in a sex offender registry removal hearing, those hearings are considered civil hearings, and consequently, an oral notice of appeal is insufficient and written notice of appeal is required. State v. Brooks, 204 N.C. App. 193, , 693 S.E.2d 204, 206 (2010); State v. Stokes, 216 N.C. App. 529, 537, 718 S.E.2d 174, 180 (2011); State v. Mann, 214 N.C. App. 155, 157, 715 S.E.2d 213, 215 (2011). Note that criminal appeals, as well as appeals from the district court to the superior court for a trial de novo, are often governed by different statutes and rules than those addressed by this Notice of Appeal Tip Sheet. See, e.g., N.C. Gen. Stat. 15A While a notice of appeal that specifies that the final judgment is being appealed can sometimes be construed to encompass earlier interlocutory orders, the best practice is to designate in the Notice of Appeal every order of the trial court that the party intends to challenge on appeal. Are There Any Special Requirements For Appeals From The North Carolina Business Court? 20. In October 2014, the General Assembly passed the Business Court Modernization Act, which, among other things, provides that certain Business Court Cases are appealable directly to the North Carolina Supreme Court. N.C. Gen. Stat. 7A-27; see also N.C. Session Law Section 7A-27 was further amended in October See N.C. Session Law Amended section 7A-27 contains potential ambiguities that the appellate courts have not yet addressed. Therefore, Page5

40 practitioners should carefully review the language of the statute, case law, and commentary before filing a notice of appeal from the Business Court. Practitioners should also carefully consider which version of section 7A-27 governs their appeals from the Business Court. 21. Only judgments and orders in cases that have been designated as mandatory complex business cases on or after October 1, 2014 are directly appealable to the North Carolina Supreme Court. N.C. Session Law , 1. Therefore, always check the designation order to determine the appellate court to which your notice of appeal should be directed. 22. If you are litigating in the North Carolina Business Court, you must timely file the Notice of Appeal electronically in the Business Court and file a paper copy with the Clerk of the Superior Court in the county where the case was originally filed. Both notices of appeal should be filed on or before the notice of appeal deadline. Ehrenhaus v. Baker, COA (N.C. Ct. App. Sept. 15, 2015); see also Ehrenhaus v. Baker, 2014 NCBC 30, 8-13 (N.C. Super. Ct. July 16, 2014) (analyzing why notice of appeal must be filed in two places). 23. While it is never advisable to wait until the last minute to file a notice of appeal, special care should be taken when filing a notice of appeal in the North Carolina Business Court because of the possibility of technical difficulties with the e-filing system. Under the Business Court s local rules governing technical difficulties (Business Court Rules 6.13 & 6.14), you should try to file your notice of appeal before 4:00 p.m. on the day the Notice of Appeal is due, at the very latest. See Carter v. Clements Walker PLLC, 2014 NCBC 12 (N.C. Super. Ct. April 30, 2014). Are There Any Special Requirements For Appeals of Termination of Parental Rights and Juvenile Abuse/Neglect/Dependency Cases? 24. Appeals of trial court orders involving termination of parental rights and issues of juvenile dependency, abuse, and neglect are governed by special rules found in N.C. Gen. Stat. 7B-1001 and N.C. R. App. P Only the matters listed in N.C. Gen. Stat. 7B-1001(a) can be appealed to the North Carolina Court of Appeals in abuse, neglect, and dependency cases. 26. In all juvenile appeals filed under N.C. Gen. Stat. 7B-1001(a), notice of appeal must be signed by both the counsel of record for the appealing party and the appealing party. N.C. Gen. Stat. 7B-1001(c); N.C. R. App. P. 3.1(a). Page6

41 27. An indigent person is entitled to court-appointed appellate counsel in actions and proceedings listed in N.C. Gen. Stat. 7A-451. Appointment of appellate counsel may be considered by the trial court even if the appealing party was represented by retained counsel in the underlying proceeding. N.C. Gen. Stat. 7B-450(c). Examples of notices of appeal and other resources for appeals in juvenile matters are available on the Indigent Defense Services Office of Parent Representation website, available at Are There Any Other Notice Of Appeal Considerations? 28. A filed-stamped notice of appeal and the certificate of service of the Notice of Appeal must be included in the printed record on appeal. 29. A trial court order dismissing an appeal for failure to timely perfect the appeal cannot be appealed by filing a notice of appeal of that order. Instead, the proper way to seek appellate review of such orders is by petitioning for a writ of certiorari. State v. Evans, 46 N.C. App. 327, 327, 264 S.E.2d 766, 767 (1980). Disclaimer North Carolina Bar Association publications are intended to provide current and accurate information and are designed to assist in maintaining professional competence. Publications are distributed with the understanding that the North Carolina Bar Association does not render any legal, accounting or other professional services. The contributing authors to this publication have exerted their best professional skills to assure the accuracy of its contents. All original sources of authority presented by this publication should be independently researched in dealing with any client s or your own specific legal matters. The committee appreciates the advice and comments of those who use the tip sheet. Please send your suggestions via to govaffairs@ncbar.org, or by conventional mail to the Appellate Rules Committee, NC Bar Association, P.O. Box 3688, Cary NC Prepared and Distributed by the Appellate Rules Committee of the North Carolina Bar Association 2016 North Carolina Bar Association All rights reserved. Latest Revision Date: January 8, 2016 Page7

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43 Ehrenhaus Is Here To Stay ncapb.com/2015/09/16/ehrenhaus-is-here-to-stay/ September 16, 2015 Yesterday the North Carolina Court of Appeals issued what I am going to be so bold as to call the most highly anticipated opinion in 2015 for appellate practitioners. For those new to the Ehrenhaus discussion, take a look at our prior posts here and here and here. The central question is whether the provision in Appellate Rule 3 requiring that a notice of appeal be filed with the clerk of superior court can, in a North Carolina Business Court case, be satisfied by e-filing the notice of appeal through the Business Court website, or can only be satisfied by timely filing of the notice of appeal with the clerk of superior court in the case s home county. In yesterday s opinion in Ehrenhaus v. Baker ( ), the Court of Appeals dismissed Plaintiff s appeal (of the North Carolina Business Court order dismissing his attempted cross appeal as untimely) and denied Plaintiff s petition for writ of certiorari. In reaching its decision, the Court concluded that Plaintiff did not properly give notice of appeal and the circumstances did not justify granting such an extraordinary remedy as certiorari to review the underlying order on the merits. Where does that leave us? With binding authority interpreting notice of appeal filing requirements for North Carolina Business Court appeals. When appealing from a Business Court order or judgment, e-filing your notice of appeal will not satisfy the filing requirements of Appellate Rule 3. You must also file a paper copy of your notice of appeal with the court in which the case originated, and you must do so by your notice of appeal deadline. Corinne Jones Copyright 2016 North Carolina Appellate Practice Blog 1/1

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45 Notice of Appeal Perils: Further Proof that You Should Ignore Appellate Rule 3(c)(2) ncapb.com/2014/07/03/notice-of-appeal-perils-further-proof-that-you-should-ignore-appellate-rule-3c2/ July 3, 2014 Ignore that Rule of Appellate Procedure! How often do you hear me say that? I would wager not often, but the Court of Appeals recent opinion in Magazian v. Creagh precipitates a friendly warning to take a figurative red pen and strike out a portion of Appellate Rule 3. Magazian involved a plaintiff s attempt to renew a foreign judgment issued in The trial court granted summary judgment to the defendant, and the plaintiff appealed. The Court of Appeals identified two problems with the Magazian plaintiff s appeal. First, the 2001 foreign judgment was not part of the record on appeal. As we have previously noted [here, here, & here], an appellant that fails to include a necessary document in the record on appeal risks having its appeal dismissed. Occasionally, appellate judges will instruct counsel to supplement the appellate record, but they have no duty to do so and, more often than not, will simply dismiss the appeal for the record deficiency. Second, the Magazian court held that the notice of appeal was not timely filed. The trial court s judgment was entered (i.e., filed) on Friday, September 20, N.C. R. Civ. P. 58 requires the judgment be served within three days of entry of the judgment with a certificate of service. Here, there was no evidence that the defendant or the court ever served the judgment on the plaintiff as required by the Appellate Rules or the Rules of Civil Procedure. Instead, the plaintiff first received notice that a judgment had been entered on Wednesday, September 25, 2013, when an unidentified person ed the plaintiff a copy of the judgment. Thereafter, the plaintiff filed a notice of appeal on October 25, days after the plaintiff was ed a copy of the judgment. As you may know, the Rules of Appellate Procedure do not allow service of a judgment by . service is allowed only when a document is filed electronically via the appellate courts e-filing website. N.C.R. App. P. 26(c). As a judgment is filed in the trial court, the service provision of Appellate Rule 26(c) does not apply. Moreover, the Magazian court acknowledged that [e]mail is not a valid method of service under the Rules of Civil Procedure, either. Therefore, proper service of the judgment on the plaintiff was never made. So, when is a notice of appeal due if the judgment to be appealed is never properly served? You might think such a notice is essentially timely no matter what. But such a rule would allow for an indefinite delay, even if the parties have actual notice that the judgment was entered. The Court of Appeals has repeatedly rejected such a result as being contrary to the purpose of N.C. R. Civ. P. 58, and instead only requires fair notice that a judgment has been entered to start the notice of appeal clock. See, e.g., Huebner v. Triangle Research Collaborative, 193 N.C. App. 420, 667 S.E.2d 309 (2008) (an appellant with actual notice cannot wait three years to file a notice of appeal). The Court of Appeals took this logic further in last year s Manone v. Coffee decision, holding that when a party receives actual notice of the entry and content of a judgment... the service requirements of Rule 3(c)... are not applicable. The result in Manone was particularly pernicious even though someone in the appellant s firm picked the judgment up from the courthouse within three days of entry of judgment, appellant s counsel did not actually receive the judgment until four days after it was entered. Appellant s counsel filed notice of appeal more than 30 days after the judgment was entered, apparently believing that it could rely on the alternative 30-day clock contained in Appellate Rule 3(c)(2). N.C. R. App. P. 3(c)(2) (notice of appeal is due within 30 days after service upon the party of a copy of the judgment if service was not made within that three day period prescribed by N.C. R. Civ. P. 58). We blogged about Manone at the time of its release, warning practitioners that Manone could be a ticking bomb for 1/3

46 appellate practitioners who sought to rely on Appellate Rule 3(c)(2). See also Kennedy v. Ramirez (N.C. Ct. App. 2012) (finding appeal untimely because once plaintiff received actual notice of the 1 June 2012 order, the portion of Rule 3(c) requiring service pursuant to Rule 58 was not applicable to her. ) This was particularly true because actual notice, as defined by Manone, is not actual notice to the attorney who has entered an appearance in the case. Instead, actual notice occurs whenever anyone in the attorney s firm (i.e., another attorney, paralegal, secretary, receptionist, or other support personnel) becomes aware that the judgment has been entered. It makes no difference if the attorney assigned to the case does not have actual notice. Magazian applied Manone s actual notice precedent to hold that the September 20, 2013 judgment was functionally served by on Wednesday, September 25, 2013, which meant that the appeal clock started ticking. Several blog readers have already noted there are only 30 days in September, and that the appellant did not receive the until five days after the judgment was entered. So why wasn t the Magazian appellant s notice of appeal filed October 25, 2013 timely under N.C. R. App. 3(c)(2)? Well, the Magazian court extended Manone by holding that the three-day service period of Appellate Rule 3(c)(2) applies when an attorney only receives actual notice of the judgment, and when counting the three days, the Court excludes weekends and court holidays. Because two of the five days between entry of the judgment and actual notice of the judgment fell over the weekend, the Magazian court determined that actual notice was received within three business days of the entry of the judgment, and Rule 3(c)(2) did not apply. The Court s decision in Magazian, like Manone, adds an additional layer of complication to Civil Procedure Rule 58 and Appellate Rule 3 that the drafters likely never intended. A look at the history of the Rules suggests as much. Over twenty years ago, a prior iteration of N.C. R. Civ. P. 58, in conjunction with Appellate Rule 3, required that notice of appeal be filed within 30 days of the trial court s rendering or announcement of a judgment. Because when a judgment is rendered is not always clear-cut, the appealing parties and the courts often found it difficult to determine exactly when a notice of appeal was required to be filed. In 1993, Rule 58 was amended to provide that a notice of appeal deadline does not begin to run 1) until 30 days after the trial court s filing of a signed, written order, and 2) only if the judgment is served with proof of service in accordance with Rule 5 within three days of the filing of the judgment. Rule 58 further states that when its service requirements are not met, the deadline for post-judgment motions under Rule 50, 52, and 59 are tolled for the duration of any period of noncompliance with this service requirement. Because these amendments were intended to simplify the process for calculating the notice of appeal deadline, it seems reasonable to require a non-appealing party to comply with Rule 58 s service requirements if it wants the opposing party s 30-day window for appealing to begin to run. By reading into Appellate Rule 3 a broad actual notice component that excuses a party s noncompliance with Rule 58, Manone reintroduced some amount of uncertainty into the process of calculating the notice of appeal deadline. Magazian appears to take Manone one step further. I am concerned with the effect these decisions may have on even earnest rule-followers going forward. Indeed, why did the Magazian court analyze whether the admittedly ineffective service was within Rule 58 s three-days because of the weekend and holidays provision of Rule 6? In other words, why inquire whether service of the judgment was timely under Rule 58 when the court had already decided that service was not proper service under Rule 58 and Appellate Rule 3 at all? Moreover, I remain deeply troubled by the Court of Appeals earlier decision in Manone. Jettisoning the formal service requirements of Appellate Rule 3 and Rule 58 in favor of an actual notice requirement invites manipulation. An appellee might think, Why should I properly serve the judgment if by doing nothing I can introduce uncertainty into my opponent s notice of appeal deadline? Alternatively, it is not uncommon for a prevailing party to send a courtesy copy of the judgment by before sending the service copy, perhaps the next day. But what if the courtesy copy is sent three days after the judgment is entered, and the service copy is sent the next day four days 2/3

47 after the judgment was entered? While the certificate of service would state that service was not made until four days after entry of the judgment, under Manone, the parties and the courts are not bound by the appellee s certification. Rather, the Court and the appellant must determine whether actual notice occurred before the date listed on the certificate of service. Finally, even if the Court of Appeals was correct in holding that Appellate Rule 3 and Rule 58 s service requirements are effectively optional, why not at a minimum give the appealing party a full 30 days from its actual notice of entry of the judgment to file its notice of appeal when proper service is never made? Unfortunately, Manone and Magazian have taken different paths. Therefore, I repeat the warning this blog issued after Manone. It is safer not to rely on Appellate Rule 3 s extra time when service is not completed within three days. Instead, file your notice of appeal within thirty days of the filed-stamp date on the judgment. If you need to strike out Appellate Rule 3(c)(2) to remember this warning, I will let you borrow my red pen. I am interested to know your thoughts about Manone and Magazian. Do you have an alternative solution to this problem? Let me know in the comments below! Beth Scherer (P.S. Thanks to everyone who ed and called me about this decision.) Copyright 2016 North Carolina Appellate Practice Blog 3/3

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49 III. Other Timing Traps With Notices Of Appeal Barebones And Improper Post-Judgment Motions Will Not Toll The Thirty-Day Period For Filing A Notice Of Appeal Motions that do not contain any real arguments or which merely cite the rule. Pursuant to Rule 59, grant us a new trial. Motions that contain argument, but are not based on any of the grounds enumerated in Rule Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.

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51 Resisting the Urge To Give The Trial Court One Last Chance: Dangers of Using N.C. R. Civ. P. 59 To Revisit Final Judgments Entered Without A Trial ncapb.com/2016/08/30/resisting-the-urge-to-give-the-trial-court-one-last-chance-dangers-of-using-n-c-r-civ-p-59-to-revisit-final-judgm August 30, 2016 Most attorneys have had a least one unfavorable final judgment entered before trial. The attorney may feel that the trial court completely misunderstood her argument. Perhaps the trial court entered a summary judgment order that missed a key appellate case. Or perhaps the trial court issued a Rule 12(b)(6) dismissal that appeared inconsistent with an earlier ruling. The natural inclination is to devise a motion that will give the trial court the opportunity to fix its mistakes without having to take an appeal. Indeed, a well-used rulebook almost instinctively opens to N.C. R. Civ. P. 59, which allows a trial court to alter or amend a judgment if a Rule 59 motion is filed within 10 days after entry of that judgment. According to a recent Court of Appeals opinion, attorneys should resist the urge to file a Rule 59 motion for anything other than a final judgment entered after a trial at least if you need the Rule 59 motion to toll your deadline for filing a notice of appeal. Indeed, improperly relying on a Rule 59 motion to toll a party s deadline for filing a notice of appeal could have fatal consequences! In TD Bank v. Eagles Crest, the defendants contended that their filing of a Rule 59 motion, which sought to modify a prior summary judgment order, tolled their 30-day deadline for appealing the summary judgment order. The Court of Appeals disagreed, stating that Rule 59 is not a valid means to challenge pretrial orders. While TD Bank is unpublished, it relies on Bodie Island Beach Club Ass n, Inc. v. Wray, 215 N.C. App. 283, , 716 S.E.2d 67, 77 (2011), a published Court of Appeals opinion holding that Rule 59(a)(8) and (9) speak only to post-trial motions and, therefore, cannot be used to amend a summary judgment order. Because the TD Bank defendants sought to rely on an improper Rule 59 motion to toll their notice of appeal deadline, the Court of Appeals dismissed their appeal as untimely. The proposition that a Rule 59 motion can only be used in a post-trial situation arises from the text of Rule 59. For example, Rule 59(a)(1) allows a trial court to grant a new trial based on any irregularity by which any party was prevented from having a fair trial. Subsections 59(a)(2) through (a)(9) contain similar phrases relating to post-trial proceedings. N.C. R. Civ. P. 59(a) (using phrases like misconduct of the jury, manifest disregard of the jury instructions by the jury, conduct that happened at trial, the verdict, and grounds for a new trial. ). In turn, Rule 59(e), which permits amendments to judgments, arguably incorporates by reference the trial-related criteria contained under Rule 59(a). ( A motion to alter or amend the judgment under section (a) of this rule shall be served not later than 10 days after entry of judgment. (emphasis added)). The Federal Rules of Civil Procedure contain a similar rule allowing a trial court to alter or amend a final judgment. However, N.C. R. Civ. P. 59 is different from Fed. R. Civ. P. 59 in two key respects. First, Fed. R. Civ. P. 59(e) does not incorporate by reference the new trial grounds listed under Fed. R. Civ. P. 59(a). See Fed. R. Civ. P. 59(e) ( A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment. ). Second, the post-judgment motions that can toll a party s deadline for filing a notice of appeal in federal court are much broader than in state court. For example, both a Rule 60 motion and a motion for attorneys fees can toll a party s deadline for filing a notice of appeal in federal court, but not state court. Perhaps the federal court system places a greater emphasis on giving a trial court one last chance to correct mistakes in its final judgment. On the other hand, our state court system may value finality of final judgments over giving parties the opportunity to pester a trial court to change its prior order one last time. Indeed, North Carolina 1/2

52 cases speak disapprovingly of parties who seek to use improper, post-judgment motions as a substitute for an appeal. Moreover, in the federal courts, the same district court judge (with the help of judicial law clerks) is assigned to a particular case from start to finish. With the exception of Business Court cases, our state trial court system generally relies on rotating judges to decide cases. Liberal post-judgment rules that encouraged litigants to take an additional shot at every final judgment could place an additional burden on our state court system. At this point, the Supreme Court has not yet decided this issue, although it had an opportunity to do so in In Rutherford Plantation, LLC v. The Challenge Golf Grp. of Carolinas, LLC, 225 N.C. App. 79, 86, 737 S.E.2d 409, 414 (2013), Judge Stroud, relying on Bodie, issued a dissenting opinion contending that a motion under any of the subsections of Rule 59 is proper only after a trial. Id. at 88, 737 S.E.2d at 415. Interestingly, the Rutherford Court of Appeals majority opinion completely ignored the Rule 59 tolling issue and Bodie. On appeal from Judge Stroud s dissent, an equally divided Supreme Court split 3-3, leaving the decision of the Court of Appeals to stand, but without precedential value. Rutherford Plantation, LLC v. The Challenge Golf Grp. of the Carolinas, LLC, 367 N.C. 197, 753 S.E.2d 152, 153 (2014). (Interesting side note: Judge Elmore wrote the Court of Appeals majority opinion in Rutherford, but joined Judge Stroud in dismissing the appeal in TD Bank). Rutherford s non-voting 7 th justice was Justice Cheri Beasley. Then Judge Beasley concurred with Rutherford s majority opinion right before she left the Court of Appeals to join the Supreme Court in Therefore, she did not participate in the case when it reached the Supreme Court. However, after Rutherford was decided, Chief Justice Sarah Parker retired, with Justice Sam Ervin taking the vacant seat on the Supreme Court. (Final side note: Justice Ervin also has a history with Rutherford). Therefore, how this issue might be resolved by the current Supreme Court justices is unknown. What are your thoughts regarding the scope and intent of Rule 59(e)? Are you aware of other cases relevant to this issue? Let us know in the comments below. Beth Scherer Copyright 2016 North Carolina Appellate Practice Blog 2/2

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54 III. Other Timing Traps With Notices Of Appeal Types of Post-Judgment Motions That Do Not Toll The Notice of Appeal Deadline In state court, Rule 60 motions Compare Fed. R. Civ. P. 60 motions filed no later than 28 days after entry of judgment. Generally will toll the deadline for filing a notice of appeal. Fed. R. App. P. 4(a)(4)(A)(vi) Attorney Fees Motions: Federal (Sometimes) v. State (No at least not yet!) 2015 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.

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56 NORTH CAROLINA RULES OF APPELLATE PROCEDURE CHECKLIST: Civil Appeals from Trial Courts to North Carolina Court of Appeals 1 CHECK BOXES AS COMPLETED: 2 Notice of Appeal File with trial court within 30 days after entry of order or judgment from which appeal is taken (unless otherwise tolled). 3 (App. R. 3(c), (d)) Serve all other parties within same period. (App. R. 3(c), (e)) Other parties may file notices of appeal with trial court within 10 days of service of the initial notice of appeal. (App. R. 3(c)) Determine whether to seek stay of the trial court s order or judgment. (App. R. 8) Transcript Arrangement Appellant must make arrangement with the court reporter or transcriptionist(s) for the preparation of any transcripts within 14 days of filing notice of appeal. (App. R. 7(a)(1)) Appellant must file written documentation of transcript arrangement with the clerk of the trial court and serve all parties and the transcriptionist(s). (App. R. 7(a)(1) (listing required content)) 1 This document is intended as a general guideline only and pertains solely to civil appeals from trial courts. Rather than rely on this document, you should always directly consult and follow the North Carolina Rules of Appellate Procedure when handling appeals. Unless otherwise noted, references to rules are taken from the 2013 North Carolina Rules of Appellate Procedure. To receive updates or to submit comments or suggestions, subscribe to the NCAPB.com blog or contact beth.scherer@smithmoorelaw.com Also consider consulting the Appellate Rules Style Manual, a free guide produced by the NCBA s Appellate Rules Committee to assist appellate practitioners appearing before North Carolina appellate courts with practical examples, tips, and best practices. A link to the style manual is available on the resources page of the NCAPB.com blog. 2 Note that some steps may not apply to every appeal. Consult the Appellate Rules for specific information. 3 Appellant does not get the benefit of the 3-day mail rule. (App. R. 3(c)) Checklist: Civil Appeals from Trial Courts to North Carolina Court of Appeals 2013 Smith Moore Leatherwood LLP. Last Updated July Page 1-

57 Appellee may arrange for preparation of additional transcript parts within 14 days after service of written transcript contract by Appellant. Appellee must file with the clerk of trial court and serve on all other parties of record written documentation of the additional parts of the proceedings to be transcribed, including the name and address of the transcriptionist(s) designated to prepare the transcript. (App. R. 7(a)(1)) The transcriptionist(s) must prepare and deliver transcript within 60 days after service of written transcript contract. (App. R. 7(b)(1)) [Trial court transcripts are filed electronically by the transcriptionist(s) after the record on appeal is docketed, and notice is also sent to the trial court. Deposition transcripts are usually filed by Appellant in paper format when the record on appeal is filed.] Appellant must obtain any necessary extension of time for transcript preparation. The trial court may extend once the time to prepare the transcript for an additional 30 days, but any subsequent motion must be made to the Court of Appeals. (App. R. 7(b)(1)) Court Reporter certifies delivery/completion of transcript(s). (App. R. 7(b)(2)) Proposed Record and Settling the Record on Appeal 4 Parties may settle a proposed record on appeal by agreement within 35 days after certification of delivery of the transcript or 35 days after filing of the notice of appeal if no transcript was ordered. (App. R. 11(a)) If not settled by agreement, Appellant shall serve all other parties a proposed record on appeal within 35 days after certification of delivery of the transcript or 35 days after filing the notice of appeal if no transcript was ordered. (App. R. 11(b)) Within 30 days after service of the proposed record on appeal, Appellee may serve on all parties a notice of approval or objections, amendments, or a proposed alternative record on appeal. (App. R. 11(b)(c)) Settlement of Record If Appellee serves no objections or amendments to the record on appeal, the record is deemed settled as of the date of any notice of approval or as of the date when the time for filing objections expires. (App. R. 11(b)) If objections, amendments, or a proposed alternative record is served, judicial settlement of the record by the trial court may be requested in writing by any party within 10 days after expiration of the last day within which Appellee could serve objections, amendments, etc. (App. R. 11(c)) Note: Judicial settlement is limited to narrow circumstances. (See App. R. 11(c)) 4 If there are multiple Appellants, the parties should come to agreement regarding the procedure for preparing and serving the proposed record or, if necessary, request an order from the trial court. (App. R. 11(d)) Checklist: Civil Appeals from Trial Courts to North Carolina Court of Appeals 2013 Smith Moore Leatherwood LLP. Last Updated July Page 2-

58 Each party must promptly provide the trial court judge a reference copy of the record items, amendments, or objections served by that party. (App. R. 11(c)) A judicial settlement hearing must be held not later than 15 days after service of the request for hearing upon the judge. (App. R. 11(c)) The judge must file an order settling the record on appeal not more than 20 days after service of the request for hearing upon the judge. (App. R. 11(c)) If objections, amendments, or a proposed alternative record is served but judicial settlement is not sought, the record is deemed settled on date of expiration of 10-day period for requesting judicial settlement. (App. R. 11(c)) Filing the Record on Appeal File record on appeal with the Court of Appeals within 15 days after settlement. (App. R. 12) Appellant files one copy of the printed record on appeal, three copies of any separately indexed and paginated Rule 9(d) Documentary Exhibits, three copies of any paper transcripts, and three copies of any supplement to the record on appeal. (App. R. 12) When the record is filed, Appellant must notify any transcriptionist(s) filing electronic transcript(s). (App. R. 7(b)(2)) Appellant pays Court of Appeals clerk the $10.00 docketing fee, and the clerk will docket the appeal. (App. R. 12(b); Appendix F) Pay $ appeal bond to the Court of Appeals. (App. R. 6, 17; Appendix F) When the docket entry notice is received, Appellant notifies any transcriptionist(s) filing electronic transcripts of the appeal s docketing, gives the transcriptionist(s) the Court of Appeal s case number, and requests the transcriptionist(s) electronically file any trial court transcript(s). (App. R. 7(b)(2)) Seek written confirmation from transcriptionist(s) that the transcript(s) have been electronically filed. The Court of Appeals will bill Appellant for printing costs ($1.75 per page). (App. R. 12(c); Appendix F) Checklist: Civil Appeals from Trial Courts to North Carolina Court of Appeals 2013 Smith Moore Leatherwood LLP. Last Updated July Page 3-

59 Appellate Mediation 5 Return mediation election form by the deadline stated on the form (which is mailed to the parties after the record on appeal is filed). If both parties consent to mediation, determine whether to seek extension of briefing schedule. Appellant s Brief Appellant s brief filed within 30 days after the clerk mails 6 the printed record to the parties. (App. R. 13) 7 Serve brief on all parties within same time. (App. R. 13) File and serve Appeal Information Statement with Appellant s brief or before that time. (App. R. 41) 8 Include all required sections of the brief. (App. R. 28(b)) Include any required appendix, properly formatted. (App. R. 28(d)) Follow font requirements, formatting requirements, and word/page limitations. For proportional font, include certificate of compliance with word limitations. (App. R. 28(j)) Printing costs will be billed to Appellant ($1.75 per page). (Appendix F) Appellee s Brief Appellee s brief filed within 30 days after Appellant s brief has been served. (App. R. 13) 9 Serve brief on all parties within same time. (App. R. 13) Include all required sections of the brief. (App. R. 28(c)) Include any required appendix, properly formatted. (App. R. 28(d)) Follow font requirements, formatting requirements, and word/page limitations. For proportional font, include certificate of compliance with word limitations. (App. R. 28(j)) Printing costs will be billed to Appellee ($1.75 per page). (Appendix F) 5 For more information, see the Court of Appeals mediation page at 6 Appellant does not get the benefit of the 3-day mail rule. (App. R. 13(a)(1)) 7 Cross-Appellants must file a brief on their cross-appeal issues under same deadlines as the initial Appellant. 8 If the Appeal Information Statement is inaccurate or incomplete, other parties must file corrections within 7 days of service of the original Appeal Information Statement. (App. R. 41(b)(3)) 9 Three extra days are permitted if the Appellant s brief was served by mail or electronic mail. (App. R. 27(b)) Checklist: Civil Appeals from Trial Courts to North Carolina Court of Appeals 2013 Smith Moore Leatherwood LLP. Last Updated July Page 4-

60 Reply Brief Reply brief filed within 14 days after Appellee s brief has been served. (App. R. 28(h)) 10 Serve brief on all parties within same time. (App. R. 13) Limit to concise rebuttal of arguments set out in Appellee s brief. (App. R. 28(h)) Follow font requirements, formatting requirements, and word/page limitations. For proportional font, include certificate of compliance with word limitations. (App. R. 28(j)) Printing costs will be billed to Appellant ($1.75 per page). (Appendix F) Oral Argument (Only If Ordered By Court) If the case is selected for oral argument, counsel intending to argue the case must have personally signed his/her client s brief. (App. R. 33(a)) If necessary, file original plus three memoranda of additional authorities before oral argument. (App. R. 28(g)) [Memoranda of additional authority cannot be filed electronically in the Court of Appeals.] Opinion, Mandate, and Optional Petition for Rehearing After a decision is reached by Court of Appeals, the Clerk enters judgment and issues the mandate 20 days after the written opinion is filed. (App. R. 32) [Note: The mandate is issued automatically. There is no further notification by the Court.] A petition for rehearing may be filed within 15 days after the mandate is issued. (App. R. 31(a)) Any petition for rehearing must include certificates of two uninterested and qualified attorneys regarding errors. (App. R. 31(a)) Pay the $20.00 docketing fee applicable to petitions for rehearing. (Appendix F) Consider whether to seek a stay from the trial court to which the mandate is issued. (App. R. 31(e)) If the petition is granted: Petitioner s brief filed within 30 days after the case is certified for rehearing. (App. R. 31(d)) Opposing party s brief filed within 30 days after petitioner s brief has been served. (App. R. 31(d)) 10 Three extra days are permitted if the Appellee s brief was served by mail or electronic mail. (App. R. 27(b)) Checklist: Civil Appeals from Trial Courts to North Carolina Court of Appeals 2013 Smith Moore Leatherwood LLP. Last Updated July Page 5-

61 No reply briefs allowed. (App. R. 31(d)) Checklist: Civil Appeals from Trial Courts to North Carolina Court of Appeals 2013 Smith Moore Leatherwood LLP. Last Updated July Page 6-

62 NORTH CAROLINA RULES OF APPELLATE PROCEDURE CHECKLIST: Civil Appeals from North Carolina Court of Appeals to Supreme Court of North Carolina 1 CHECK BOXES AS COMPLETED: 2 APPEALS OF RIGHT BASED ON DISSENT IN COURT OF APPEALS (APP. R. 14(b); N.C. GEN. STAT. 7A-30) Notice of Appeal File notice of appeal of right with the Court of Appeals and with the Supreme Court (i) within 15 days after the mandate of the Court of Appeals has been issued to the trial tribunal or (ii) within 15 days of entry of order denying motion for rehearing. (App. R. 14) Serve all other parties within same period. (App. R. 14) If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 10 days after the first notice of appeal was filed. (App. R. 14) Pay $10.00 certification fee to Court of Appeals. (Appendix F; see also Appellate Style Manual) Pay $ bond to Supreme Court. (Appendix F) Pay $10.00 docketing fee to Supreme Court. (Appendix F) Consider whether to file petition for discretionary review ( PDR ) to seek review by Supreme Court of additional issues that were not part of dissenting opinion. 1 This document is intended as a general guideline only and pertains solely to civil appeals from trial courts. Rather than rely on this document, you should always directly consult and follow the North Carolina Rules of Appellate Procedure when handling appeals. Unless otherwise noted, references to rules are taken from the 2013 North Carolina Rules of Appellate Procedure. To receive updates or to submit comments or suggestions, subscribe to the NCAPB.com blog or contact beth.scherer@smithmoorelaw.com Also consider consulting the Appellate Rules Style Manual, a free guide produced by the NCBA s Appellate Rules Committee to assist appellate practitioners appearing before North Carolina appellate courts with practical examples, tips, and best practices. A link to the style manual is available on the resources page of the NCAPB.com blog. 2 Note that some steps may not apply to every appeal. Consult the Appellate Rules for specific information. Checklist: Civil Appeals from North Carolina Court of Appeals to Supreme Court of North Carolina 2013 Smith Moore Leatherwood LLP. Last Updated July Page 1-

63 Briefing If Appellant files both a notice of appeal and PDR, the docketing fee to the Supreme Court is $ (Appendix F) Appellant s new brief filed with the Supreme Court within 30 days after filing notice of appeal. (App. R. 14(d)(1)) If filing both a PDR and an appeal of right, Appellant s new brief must be filed within 30 days of Supreme Court s order regarding the PDR. (App. R. 14(d)(1)) Serve Appellant s brief on all parties within same time. (App. R. 14(d)(1)) Include all required sections of the brief. (App. R. 28(b)) Include any required appendix, properly formatted. (App. R. 28(d)) Follow font and formatting requirements. [Page and word count limitations do not apply in the Supreme Court.] (App. R. 28(j)) Printing costs will be billed to Appellant ($1.75 per page). (Appendix F) Appellee s new brief filed with the Supreme Court within 30 days after service of Appellant s brief. (App. R. 14(d)(1)) 3 Serve Appellee s brief on all parties within same time. (App. R. 14(d)(1)) Include all required sections of the brief. (App. R. 28(c)) Include any required appendix, properly formatted. (App. R. 28(d)) Follow font and formatting requirements. [Page and word count limitations do not apply in the Supreme Court.] (App. R. 28(j)) Printing costs will be billed to Appellee ($1.75 per page). (Appendix F) Appellant s new reply brief filed with the Supreme Court within 14 days after service of Appellee s brief. (App. R. 28(h)) 4 Serve reply brief on all parties within same time. (App. R. 13) Limit to concise rebuttal of arguments set out in Appellee s brief. (App. R. 28(h)) Follow font and formatting requirements. [Page and word count limitations do not apply in the Supreme Court.] (App. R. 28(j)) Printing costs will be billed to Appellant ($1.75 per page). (Appendix F) 3 Three extra days are permitted if the Appellant s brief was served by mail or electronic mail. (App. R. 27(b)) 4 Three extra days are permitted if the Appellee s brief was served by mail or electronic mail. (App. R. 27(b)) Checklist: Civil Appeals from North Carolina Court of Appeals to Supreme Court of North Carolina 2013 Smith Moore Leatherwood LLP. Last Updated July Page 2-

64 DISCRETIONARY REVIEW ON CERTIFICATION BY SUPREME COURT OF NORTH CAROLINA (APP. R. 15; N.C. GEN. STAT. 7A-31) Petition for Discretionary Review ( PDR ) 5 PDR filed after determination by Court of Appeals must be filed and served: (i) within 15 days after the mandate of the Court of Appeals has been issued to the trial tribunal or (ii) within 15 days of entry of order denying motion for rehearing. (App. R. 15(b)) PDR filed prior to determination by Court of Appeals must be filed and served within 15 days after the appeal is docketed in the Court of Appeals. (App. R. 15(b)) Pay $10.00 filing fee to Supreme Court. (Appendix F) Pay $10.00 certification fee to Court of Appeals. (Appendix F; see also Appellate Style Manual) If PDR is filed by either party, any other party may file its own PDR within 10 days after first PDR is filed. (App. R. 15(b)) Any response to the PDR is due 10 days after service of the PDR. No extensions of time are permitted. (App. R. 15(d)) Briefing Following Certification of Discretion Review by the Supreme Court Appellant s New Brief For a PDR filed after determination by Court of Appeals, Appellant s new brief must be filed with the Supreme Court within 30 days after the case is docketed by entry of the order of certification. (App. R. 15(g)(2)) For a PDR filed prior to determination by the Court of Appeals, the parties should follow the briefing schedule set forth in App. R. 13. (App. R. 15(g)(1)) Pay $ appeal bond to Supreme Court after certification order is entered. Serve Appellant s new brief on all parties within same time. Include all required sections of the brief. (App. R. 28(b)) Include any required appendix, properly formatted. (App. R. 28(d)) 5 A Notice of Appeal based on a constitutional question is treated like a petition for discretionary review because the Supreme Court must first determine if the constitutional question is a substantial constitutional question. Thus, when a Notice of Appeal based on a constitutional question is filed, Appellant submits to the Supreme Court a $10.00 docketing fee with the notice of appeal. If the Supreme Court accepts the appeal, it will issue a briefing schedule, at which time Appellant should submit a $ appeal bond to the Supreme Court and a $10 certification fee to the Court of Appeals. (See App. R. 14(d)(1); Appellate Style Manual) Checklist: Civil Appeals from North Carolina Court of Appeals to Supreme Court of North Carolina 2013 Smith Moore Leatherwood LLP. Last Updated July Page 3-

65 Follow font and formatting requirements. [Page and word count limitations do not apply in the Supreme Court.] (App. R. 28(j)) Printing costs will be billed to Appellant ($1.75 per page). (Appendix F) Appellee s New Brief File Appellee s new brief with the Supreme Court within 30 days after service of Appellant s brief. 6 (App. R. 15(g)(2)) 7 Serve Appellee s brief on all parties within same time. (App. R. 15(g)) Include all required sections of the brief. (App. R. 28(c)) Include any required appendix, properly formatted. (App. R. 28(d)) Follow font and formatting requirements. [Page and word count limitations do not apply in the Supreme Court.] (App. R. 28(j)) Printing costs will be billed to Appellee ($1.75 per page). (Appendix F) Appellant s Reply Brief File reply brief with the Supreme Court within 14 days after service of Appellee s brief. 8 (App. R. 28(h)) Serve reply brief on all parties within same time. (App. R. 15(g)) Follow font and formatting requirements. [Page and word count limitations do not apply in the Supreme Court.] (App. R. 28(j)) Printing costs will be billed to Appellant ($1.75 per page). (Appendix F) ORAL ARGUMENT BEFORE SUPREME COURT OF NORTH CAROLINA Most cases before the Supreme Court of North Carolina are orally argued. Counsel arguing the case must have personally signed the brief. (App. R. 33(a)) Send written acknowledgment of receipt of Supreme Court s oral argument notification, and inform the Court who will be arguing. If necessary, file original plus 14 copies of any memorandum of additional authorities before oral argument. (App. R. 28 (g)) Alternatively, memoranda of additional authority may be filed electronically with the Supreme Court. 6 Three extra days are permitted if the Appellant s brief was served by mail or electronic mail. (App. R. 27(b)) 7 For a PDR filed prior to determination by the Court of Appeals, Appellee should follow the briefing schedule set forth in App. R. 13. (App. R 15(g)(1)) 8 Three extra days are permitted if the Appellee s brief was served by mail or electronic mail. (App. R. 27(b)) Checklist: Civil Appeals from North Carolina Court of Appeals to Supreme Court of North Carolina 2013 Smith Moore Leatherwood LLP. Last Updated July Page 4-

66 PETITIONS FOR REHEARING TO SUPREME COURT OF NORTH CAROLINA A petition for rehearing may be filed within 15 days after the mandate is issued. (App. R. 31(a)) Any petition for rehearing must include certificates of two uninterested attorneys regarding errors. (App. R. 31(a)) Consider whether to seek a stay from the trial court to which the mandate is issued. (App. R. 31(e)) Pay $20.00 docketing fee applicable to petitions for rehearing. (Appendix F) If the petition is granted, the petitioner s brief must be filed within 30 days after the case is certified for rehearing. (App. R. 31(d)) Opposing party s brief must be filed within 30 days after petitioner s brief has been served. No reply briefs are allowed. Checklist: Civil Appeals from North Carolina Court of Appeals to Supreme Court of North Carolina 2013 Smith Moore Leatherwood LLP. Last Updated July Page 5-

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68 Last edited August 3, 2016 Matthew Nis Leerberg T (919) matt.leerberg@smithmoorelaw.com Elizabeth Brooks Scherer T (919) beth.scherer@smithmoorelaw.com Planning To Pursue An Appeal From A Business Court Decision? It s A Jungle Out There! Your Filing Deadline In The North Carolina Business Court Is Really 4:00 p.m. On the Day The Document Is Due. Smith Moore Leatherwood Attorneys at Law