You should always file your notice of appeal as soon as possible, right? Wrong. This is one instance in which being early can actually be detrimental to your client’s rights. In Mannise v. Harrell, the Court of Appeals determined that a notice of appeal filed too early was improper and could only be reviewed by writ of certiorari.
The case involved a domestic dispute between two parents in which the defendant father moved to dismiss the action for lack of subject matter jurisdiction and personal jurisdiction. The trial court orally denied the motion to dismiss on September 15th. However, the written order was not filed until October 26th. During the intervening time period, the father filed a notice of appeal.
Under Rule 3 of the North Carolina Rules of Appellate Procedure, a notice of appeal must be filed “within thirty days after entry of judgment.” And under Rule 58 of the North Carolina Rules of Civil Procedure, a judgment is not entered until it is reduced to writing, signed by the judge, and filed with the clerk of court. Thus, in Mannise, the Court of Appeals explained that “[a]n entered order did not exist when [the father] filed notice of appeal.” Because the father never filed an amended notice of appeal, the Court held that there was never an effective appeal from the written order under the terms of Appellate Rule 3. Fortunately for the father, the Court proceeded to review the merits of the appeal by treating his notice of appeal as a petition for writ certiorari.
It is unclear how far the Mannise holding extends. The Court of Appeals has previously stated that a party is “entitled to file notice of appeal immediately upon [the] rendering of an order denying her motion.” Abels v. Renfro Corp., 126 N.C. App. 800, 804, 486 S.E.2d 735, 738 (1997); see also Merrick v. Peterson, 143 N.C. App. 656, 660-61, 548 S.E.2d 171, 174 (2001) (finding that an appeal was proper when the notice of appeal was filed following an oral rendering but prior to entry). As long as the terms of the oral ruling and written order are generally consistent, a premature notice of appeal is usually sufficient to confer jurisdiction on the appellate courts. In fact, the Court clarified in June 2016 that an appellant must file a written notice of appeal after entry of judgment (in spite of a notice of appeal following oral rendering) “if the written and entered judgment does not generally comply with the earlier rendered judgment.” In re O.D.S., — N.C. App. –, –, 786 S.E.2d 410, 416 (2016). Perhaps the oral ruling and the written order in Mannise were substantially different.
In any event, cautious practitioners should be sure to a) wait to file the notice of appeal until after a written order is entered, or b) file a second or amended notice of appeal after the written order is signed and filed.
Thank you to Preston Odom for calling our attention to this case!
P.S. Mannise is a helpful reminder on one additional point of appellate jurisdiction. The portion of the interlocutory order denying the motion to dismiss based on personal jurisdiction was immediately appealable based on N.C. Gen. Stat. § 1-277(b). However, the Court did not have jurisdiction to review the portion of the interlocutory order covering subject matter jurisdiction.