Eleven days before it is due, you FedEx your Notice of Appeal to the county courthouse, return-receipt requested. Seven days before it is due, you receive an e-mail confirmation that the document was, in fact, delivered. You have timely appealed, right?
Maybe not. In Hefner v. Mission Hospital, a Business Court case, a final order was filed-stamped in the county courthouse on December 17, 2015, starting the thirty-day clock during which the plaintiff could file a notice of appeal. To properly appeal, the plaintiff was required to “fil[e] notice of appeal with the clerk of superior court” by January 19, 2016. N.C. R. App. P. 3(a). The plaintiff sent the Notice of Appeal by FedEx on January 8, but it was apparently delivered to the Sheriff’s department, not the Clerk of Court (with which it shares a building), on January 12. Although the Sheriff’s department has a general policy of delivering such misrouted mail to the Clerk the next business day, no one in the Sheriff’s department or the Clerk’s office had personal knowledge that the notice of appeal was in fact so delivered. Instead, when the deadline for appeal came and went, the defendants’ counsel informed the plaintiff’s counsel that he had missed his appeal deadline. Plaintiff’s counsel called the Clerk’s office, which found the original mailed notice of appeal—unstamped. The Clerk stamped it that very day, January 20—one day late.
The defendants moved to dismiss for failure to perfect the appeal. The Business Court expressed “sympath[y]” for the plaintiff’s plight but, applying “strict construction” to the facts, found that plaintiff had failed to prove that a timely notice of appeal was actually submitted to the Clerk’s office. Because it is well-established that trial courts have no discretion to excuse or extend jurisdictional appellate deadlines, the Business Court granted the motion to dismiss the appeal.
There were two other fascinating issues lurking in this case that the Business Court did not reach.
First, does the thirty-day appellate clock begin with the Business Court’s electronic service of a final order, or does it begin when the final order is filed-stamped in the home county clerk’s office?
Second, are there any circumstances in which an appellant’s mere submission of a notice of appeal to the Clerk’s office would constitute filing for purposes of Appellate Rule 3? What if the filed-stamped notice of appeal is misplaced, but the Clerk signs an affidavit swearing that it was timely filed? What if the notice of appeal is hand-delivered on time, but the Clerk misplaces it before file-stamping it? What if the Sheriff’s department in Hefner swore that the notice of appeal had been delivered to the Clerk days in advance?
In any event, the take-home lesson here is this: if you choose to file a notice of appeal by mail, confirm that it was actually received and file-stamped before the thirty-day deadline runs. If you do not lay eyes upon a filed-stamped copy by the deadline, you need to have a “Plan B” ready, even if that means hand delivering the notice of appeal. As I suggested last week, “close enough” is not sufficient for this, the most important document in your entire appeal.