Eric will be blogging about today’s Court of Appeals’ opinions later tonight, but I wanted to make everyone aware of a prior Court of Appeals’ opinion that all litigators should be aware of.

I recently stumbled on a Court of Appeals’ opinion that appears to conflict with a key tolling provision of the Appellate Rules.  Appellate Rule 3 provides that when “any party” timely files a Rule 50(b), 52(b), or Rule 59 motion 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.”

However, a summer 2013 Court of Appeals’ opinion calls into question what heretofore had been my confident reading of Appellate Rule 3’s tolling provision.  In Estate of Hurst ex rel. Cherry v. Moorehead I, LLC, 748 S.E.2d 568, 572 (N.C. Ct. App. 2013), a jury returned a verdict in plaintiff’s favor and the trial court entered a written judgment on 23 May 2011.

Thereafter, one of the defendants, Blackmon, filed what the Court of Appeals characterized as a “timely” Rule 59 motion.  The remaining defendants did not join in Blackmon’s motion or otherwise file their own post-judgment motions under Civil Procedure Rules 50, 52, or 59.  Instead, they waited to appeal until after the trial court disposed of Blackmon’s Rule 59 motion.

By order entered 11 October 2011, the trial court denied Blackmon’s Rule 59 motion. Thereafter, on 9 November 2011, a notice of appeal was filed on behalf of all the defendants—i.e., within 30 days of the Rule 59 order.

Under my reading of Appellate Rule 3, Blackmon’s Rule 59 motion should have tolled the deadline for filing the notice of appeal “as to all parties.”  However, the Court of Appeals reached the opposite conclusion, stating:

Under Rule 3 of the North Carolina Rules of Appellate Procedure, timely filing of a motion for judgment notwithstanding the verdict pursuant to N.C. Gen. Stat. § 1A-1, Rule 50(b) tolls the period for filing and serving written notice of appeal in civil actions. N.C. R. App. P. 3(c)(3)(2013).

Here, Blackmon filed a timely motion for judgment notwithstanding the verdict pursuant to Rule 50.  However, this motion was filed by Blackmon alone, and not by the remaining defendants.  Therefore, although the notice of appeal given on 9 November 2011 was on behalf of all defendants, the time for filing notice of appeal in this case was tolled during the pendency of the motion as to Blackmon only. The remaining defendants failed to file notice of appeal within 30 days from entry of the trial court’s judgment.  Because timely notice of appeal is jurisdictional, we dismiss the present appeal as to [the remaining defendants].

Hurst, 748 S.E.2d at 572 n.2 (internal citations omitted).

After looking at the docket sheets and motions filed in this case, it appears that the Court of Appeals dismissed these defendants’ appeal sua sponte.  Nothing is wrong with this because an appellate court has an independent obligation to assure that an appeal was timely filed. However, this may provide a hint as to why the relevant tolling language of Appellate Rule 3 was not discussed in the opinion.  It is possible that the Hurst court inadvertently overlooked the language that indicates that the tolling provision applies to all parties regardless of who filed the motion.

However, Hurst is a published opinion, which raises concerns regarding what happens next time this issue comes before the Court of Appeals.  Will future panels be obliged to follow Hurst’s reasoning, or is the language of Appellate Rule 3 sufficiently clear to trump Hurst under the theory that the Appellate Rules, which are promulgated by the North Carolina Supreme Court, cannot be overridden by a Court of Appeals’ opinion?  Is there a way for subsequent panels to limit Hurst to the particular facts of that case?

Moreover, several practical questions arise if Hurst’s interpretation of Appellate Rule 3’s tolling provision prevails.

First, Appellate Rule 3 provides that if “timely notice of appeal is filed and served by a party, any other party may file and serve a notice of appeal within 10 days after the first notice of appeal was served on such party.”  Thus, even if Appellate Rule 3’s tolling provision did not apply, why didn’t Blackmon’s filing of a notice of appeal trigger this supplemental 10-day notice of appeal period for the remaining defendants?

Second, Appellate Rule 11(d) provides that when there are multiple appellants, there shall only be one record on appeal.  Hurst determined that all the defendants—except for Blackmon—should have filed their notices of appeal in June 2011.  Blackmon’s notice of appeal, however, was not due to be filed until November.  Under Appellate Rule 11, the proposed record would have been due in July for all the defendants except for Blackmon.  How does this work with Rule 11’s requirement that there is only to be one record? Would Blackmon have to pursue a completely separate appeal from the remaining defendants and, if so, would the June appeal have been interlocutory because it was not final as to Blackmon?

Third, if the other Defendants had filed their notices of appeal in June 2011, would the trial court have been divested of jurisdiction to issue a ruling on Blackmon’s Rule 59 motion?

I am interested to know your thoughts on this issue in the comments below.  Are you concerned about this opinion?  Any suggestions on ways to mitigate the uncertainty created by the Hurst opinion?  Is anyone aware of a Supreme Court opinion that could effectively override footnote 2?

–Beth Scherer