Time for Taking an Appeal. In civil actions and special proceedings, a party must file and serve a notice of appeal:
(1) within 30 days after entry of judgment if the party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 of the Rules of Civil Procedure; or
(2) within 30 days after service upon the party of a copy of the judgment if service was not made within that three-day period; provided that
(3) if a timely motion is made by any party for relief under Rules 50(b), 52(b) or 59 of the Rules of Civil Procedure, the thirty day period for taking 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 or its untimely service upon the party, as provided in subdivisions (1) and (2) of this subsection (c)….
North Carolina Rule of Appellate Procedure 3(c).
On the last day of 2012, in an opinion that made for entertaining New Year’s Eve reading, the North Carolina Court of Appeals reminded all appellate practitioners of the importance of filing a timely notice of appeal. In Morehead v. Wall, the Court dismissed Plaintiff’s appeal of four separate District Court orders based on a lack of jurisdiction to hear the appeals because the notices of appeal were not timely filed.
The case involves an initial appeal to District Court of a magistrate’s decision in a small claims action stemming from an automobile accident. The Court’s recitation of the procedural history of the case spans five full pages and to attempt to summarize the procedural posture in this blog post would be futile-to fully appreciate the convolution one must simply read the opinion. In what is likely an understatement, Judge Stroud notes in her opinion that the two notices of appeal filed by Plaintiff, to four different orders, with many motions and the first notice of appeal being filed even before some of the relevant orders were entered, along with errors in the notices of appeals as to important dates, made the analysis as to whether the Court had jurisdiction “unduly complex.” (Also puzzling is that it is the Plaintiff in the small claims matter who appealed the magistrate’s decision and sought trial de novo in the District Court and then filed these two notices of appeal to the Court of Appeals, despite the fact that it appears that she was awarded complete and total relief sought in her small claims action–$5000 and costs taxed to Defendant.)
What is not complex, however, are two important appellate practice points that the Court makes clear in dismissing the Plaintiff’s appeal. The first important point is that the failure to timely file a notice of appeal pursuant to Rule 3(c) of the North Carolina Rules of Appellate Procedure is a jurisdictional bar to the appeal. The Court of Appeals is without jurisdiction to hear the appeal if the appellant does not comply with the requirements of this rule. The second important point is that while a motion in the trial court for new trial or amendment of judgment pursuant to Rule 59 of the North Carolina Rules of Civil Procedure will toll the time for an appeal of an underlying order, a motion for relief from judgment or order made under Rule 60 will not toll the time for appeal. Both of these points simply underscore the significance of ensuring that notices of appeal of timely filed and that the appellate practitioner in North Carolina be fully cognizant of all of the jurisdictional requirements for a proper appeal-an issue that has been addressed many times over the past year on this blog.
Best wishes for a happy and successful 2013. May all your interlocutory orders affect a substantial right and all your notices of appeal be timely.