How is that possible? The scenario is actually quite simple:
Timely Filed Notice of Appeal + Timely Date on Certificate of Service + Untimely Postmark Date.
Rule 3(a) of the North Carolina Rules of Appellate Procedure sets forth the rule for “Filing the Notice of Appeal.” A timely filed notice of appeal, however, does not always equate a timely noticed appeal. Rule 3(a) also requires timely service on all parties. And for the appellants in High Point Bank & Trust Co. v. Fowler, the date on the postmark trumped the date on the certificate of service.
The Superior Court dismissed the appeal, concluding that “late service of a timely filed notice of appeal, without more, amounts to a jurisdictional default mandating dismissal of the appeal.”
Was this the right outcome?
In its review of the Superior Court’s dismissal of the appeal, the Court of Appeals recognized that in some cases the service requirement may be waived, but indicated that it did not appear that the non-appealing party had taken any action that would constitute of waiver of any such requirements.
The Court of Appeals did not have the opportunity to affirm (or reverse) the dismissal of the appeal on the merits though because the appellants failed to follow the appropriate course for obtaining review (although the Court suggested in dicta that it would have affirmed the dismissal if the merits had been before it). The appellants had improperly appealed the Superior Court’s order dismissing their appeal rather than file a petition for writ of certiorari. Their appeal, therefore, was not properly before the Court of Appeals and subject to dismissal, which is the last take-away:
Appealing Dismissal of Untimely Appeal → Petition for Writ of Certiorari
As the Court of Appeals explained, “[n]o appeal lies from an order of the trial court dismissing an appeal for failure to perfect it within apt time.” The proper way to obtain review of such a dismissal is by petition for writ of certiorari.
– Corinne Jones