1) Appeal from an order that can be appealed. The Court of Appeals reminded us today that interlocutory attorney fee awards are not immediately appealable. Cebula v. Givens Estates, Inc. Neither are decisions from the Industrial Commission that are limited to the question of insurance coverage. Owen v. Hogsed. Neither are orders that dismiss some, but not all, claims. Fox v. City of Greensboro; Raymond v. N.C. Police Benev. Ass’n, Inc.
2) Preserve your rights. Even aside from filing a notice of appeal, there can be other necessary steps in particular circumstances. In re Radisi. In Radisi, the trial court allowed a substitute trustee to proceed with a foreclosure sale, and the respondents appealed. However, the Court of Appeals dismissed the appeal as moot because the property had already been sold to the petitioner. The pro se respondents had not paid a bond to stay the foreclosure and had not sought a TRO or preliminary injunction.
3) Follow the rules of appellate procedure. In In re Gordon, the State of North Carolina attempted to appeal from an order granting a petition for termination of sex offender registration but made several procedural missteps. First, although the State allegedly gave oral notice of appeal in open court, the Court of Appeals reiterated that such proceedings are civil in nature and are therefore governed by Appellate Rule 3. The State had filed a notice of appeal, but it merely stated that it “[had] given Notice of Appeal in open court,” and the court found that it did “not actually give notice of appeal.” This purported “notice” was insufficient. Second, the State did not properly serve the notice of appeal. Email service was not permitted because the notice of appeal was not filed electronically. See N.C. R. App. P. 26(c). Service to the petitioner’s attorney could have been proper, but the certificate did not have a file stamp or any proof that it was filed with the trial court clerk. Although the court reaffirmed that service of a notice of appeal is a matter of personal jurisdiction rather than subject matter jurisdiction, the court found that the petitioner had not waived the issue because he filed a motion to dismiss the appeal. In a rare move, the court found that these combined missteps were “substantial or gross” violations of the appellate rules.
4) Give the judges what they want. In Fox, the court noted that it could not analyze how the defendants had argued the issue of collateral estoppel to the trial court because they had not included their brief in the record on appeal. In another case, the court noted that it could not give a more detailed factual background because the plaintiff did not include “certain relevant documents” in the record on appeal or provide a copy of the transcript from the proceedings below. Walker v. N.C. Dep’t of Corr. These omissions formed a significant basis for the court’s decision to affirm the Industrial Commission’s order. When in doubt, include a document in the record or at least in a Rule 9 or Rule 11 supplement, when permitted by rule.