The notice of appeal is arguably the most important document in the life of an appeal. After all, a proper notice of appeal “is a procedural appellate rule, required in order to give [an appellate court] jurisdiction to hear and decide a case.” State v. McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 405 (1995). And while perhaps the most commonly seen procedural issue regarding notices of appeal involves the timely filing of the notice (see here, here, and here), there are other traps to be aware of as well. One of these traps, which to my knowledge had never before been sprung, was highlighted last week in the Court of Appeals’ unpublished opinion in Town of Cary v. Southerland. In that case, the Court dismissed defendants-appellants’ appeal for lack of jurisdiction because the notice of appeal failed to designate the order being appealed, thereby divesting the Court of jurisdiction to consider that order. While this seems relatively straightforward–a notice of appeal doesn’t identify the order, therefore the appeal is dismissed–in this case it was anything but straightforward.
Southerland was a condemnation action in which the Town of Cary exercised its power of eminent domain to take a portion of the Appellants’ real property. The procedural and factual history of the case is complicated, but can be summarized as follows: The Town filed its condemnation action and attached an exhibit to its complaint a description that the Town alleged was the tract of land being taken from the Appellants by the Town (a requirement under the operative condemnation statute). The Appellants filed an answer in which it generally denied that the exhibit attached to the Town’s complaint was an accurate description of the property taken. In discovery, the Appellants indicated that they disputed the scope of the taking as alleged by the Town. Thereafter, the Town filed a notice of hearing to determine whether a hearing pursuant to N.C. Gen. Stat. § 40A-47 was necessary to determine any issues other than the issue of “just compensation” due to the Appellants for the taking of their property (a 40A-47 hearing, or a 136-108 hearing in the case of the State as the condemning authority, is where any dispute as to the scope of the taking is ordinarily determined). Shortly before the hearing, the Appellants notified the Town by letter that they intended to raise issues regarding the actual extent of the taking–arguably indicating that a 40A-47 hearing would be necessary. The Appellants then filed a stipulation withdrawing all of the defenses raised in their original answer other than the failure of the Town to pay just compensation, and requested that the hearing regarding whether a 40A-47 hearing was necessary be removed from the court calendar. The Town was unable to get the matter removed from the trial court’s calendar due to local rules, so the hearing went forward. Nobody appeared for the Appellants and counsel for the Town represented to the trial court that there were no issues pending before the court other than the determination of just compensation.
The Appellants then moved to amend their answer and argued that while their original answer denied that the exhibit attached to the complaint accurately described the Town’s taking, they proposed clarifying the issue of the extent of the taking with their amended answer. They then moved for a 40A-47 hearing to address the scope of the taking.
The trial court held a hearing on the motion to amend and entered an order on October 20,2014 denying that motion and finding that the Appellants’ purported attempt to raise an issue regarding the scope of the taking at that point was improper. Two months later, the trial court conducted a 40A-47 hearing to determine whether there were any issues other than just compensation. The trial court entered an order on January 9, 2015 holding that based on the denial of the motion to amend, there was no issue as to the scope of the taking and therefore there was no need for a hearing on that issue. The Appellants timely appealed from the January 9, 2015 order. The notice of appeal did not designate the October 20, 2014 order denying the Appellants’ motion to amend. This, as it turned out, was a fatal omission.
The Court of Appeals acknowledged that an order concerning the land taken by a condemning authority, while interlocutory, is immediately appealable because it affects substantial rights of the parties. In fact, not only is such an order immediately appealable, it is mandatory that a party wishing to challenge such an order in a condemnation action must do so immediately through an interlocutory appeal. The Court cited to the Supreme Court of North Carolina opinion in Stanford v. Paris, 364 N.C. 306, 698 S.E.2d 37 (2010) for this principle. Notably, this rule of law as stated in Paris, (which itself was not a condemnation case), cited to a host of condemnation cases, all of which involved appeals of orders specifically arising from hearings held pursuant to N.C. Gen. Stat. § 136-108.
Against that backdrop, one might have thought that the Appellants followed the appropriate procedure. When the trial court entered an order in the 40A-47 hearing denying their request to determine the scope of the taking, they immediately appealed from that order. The Court of Appeals, however, dismissed the appeal for want of jurisdiction. The Court’s reasoning was that because the trial court had addressed the issue of the scope of the taking in its October 20, 2014 order (denying the Appellants’ motion to amend their answer), it was that order, and not the January 9, 2015 order on the 40A-47 hearing, that should have been appealed from. As the notice of appeal did not designate the October 20, 2014 order, the Court held that it therefore lacked jurisdiction pursuant to Appellate Rule 3(d) and dismissed the appeal.
Interestingly, the Court’s opinion implies that had the Appellants designated the October 20, 2014 order in their notice of appeal, the Court would have had jurisdiction. It equated the denial of the motion to amend and the subsequent denial of the request to determine the scope of the taking to an appeal of a trial judgment and an order subsequently denying a motion for new trial. It is, of course, well settled, that pursuant to Rule 3(d) a party must designate both an order denying the motion for new trial and the trial judgment itself in order for there to be appellate jurisdiction over purported errors related to the trial proceedings and judgment). However, this analogy could be at odds with the rule of law that an order regarding the scope of a taking in a condemnation action must be immediately appealed. If the October 20, 2014 order denying the Appellants’ motion to amend constituted an order on the scope of the taking, then presumably (pursuant to the authorities cited in Paris), Appellants were required to appeal that order in a timely manner, and any designation of that order in the notice of appeal after the January 9, 2015 order would have been untimely. Unlike with a motion for a new trial, which by rule tolls the time to appeal from the trial judgment, there is no parallel rule that says a subsequent motion for a 40A-47 (or 138-108) hearing tolls the time to appeal an order on a motion to amend. So the question remains: what, exactly, does Southerland stand for with respect to notices of appeal in condemnation actions? Because the opinion was unpublished, it is technically not binding. But for those practicing in the area of condemnation law, the opinion is at minimum a warning to pay very close attention to any order in your case that may be deemed to address the scope of the taking, and, if in doubt, notice an appeal of that order immediately.