Our appellate blogosphere has been filled with an unusual number of posts involving dismissed appeals. However, the North Carolina Court of Appeals on Tuesday bestowed leniency on two appeals, utilizing Appellate Rules 2 and 21 to reach the merits of both appeals.  Curious as to what justified this cheerful news?  Keep reading.

Sarno v. Sarno involved a family law appeal facing a potential fatal obstacle based on  bizarre procedural facts: 1) a judgment that contained two different April 2016 file stamp dates, 2) no certificate of service for the judgment, 3) a record indicating that the judgment was not in the file on 12 May 2016, 4) a plaintiff who asserted that she had not received the judgment until 20 May 2016, and 5) notices of appeal not filed until well into June 2016.

Appellate Rule 3(c)(3) provides that when a judgment is not timely served, the time for filing the notice of appeal is tolled until proper service. [You likely recall from a prior post that this statement has been clarified by a #DoNotCountOnIt]. Rather than slip into this Procrustean bed, Judge Hunter (joined by Judge Davis) elected to avoid these jurisdictional tangles by treating Plaintiff’s appeal as a petition for writ of certiorari under Appellate Rule 2 and exercising the court’s discretionary certiorari authority under Rule 21 to hear the appeal.

Judge Murphy’s dissenting opinion in Sarno agreed with the majority’s merits-based analysis, but would have declined “to exercise [his] discretion under Rule 2 to correct the defects in Appellant’s purported petition for writ of certiorari.”

Normally, a dissenting opinion triggers an appeal of right to the Supreme Court. Given the deference usually afforded under the abuse of discretion standard of review, I am curious as to whether the appellee will attempt an appeal to the Supreme Court.

Moreover, does a dissent that only disagrees as to whether to exercise Appellate Rule 2 discretion create an appeal of right under N.C. Gen. Stat. § 7A-30? See Steingress v. Steingress, 350 N.C. 64, 67, 511 S.E.2d 298, 300 (1999) (“Thus, it appears the dissenting opinion in this case presents no dividing issue and is merely a vote in favor of the exercise of discretion to suspend the rules.”).  Let me know your thoughts!

State v. Culbertson involves a well-worn topic on this blog: the appellate court’s authority to issue statutorily authorized certiorari petitions not covered by Appellate Rule 21’s writ of certiorari language.  [Prior posts here , here, here, here, and here].

As we have noted recently, two lines of authority have developed in the Court of Appeals regarding how to resolve this issue.  Judge Tyson, the author of Culbertson, is among several judges who contend that statutorily authorized certiorari petitions not cited by Appellate Rule 21 can only be reviewed by overlaying an Appellate Rule 2 analysis onto the certiorari petition standards. This approach makes certiorari petitions more difficult to obtain.  Other judges take a different view, contending that the appellate courts do not have to utilize Appellate Rule 2 to reach the merits of a statutorily authorized certiorari petition under the Supreme Court’s opinion in State v. Stubbs.

The Culbertson court followed the first approach, but decided the facts of the case involved a rare case where it was appropriate for the appellate court to invoke Appellate Rule 2 to reach the merits of defendant’s certiorari petition. In Culbertson, the defendant contended (and the State conceded) that the defendant’s guilty plea stemmed from a fatally defective indictment.   Such indictments have a special status under the Appellate Rules because they implicate fundamental errors so egregious that they can be raised for the first time on appeal and on the court’s own motion under Appellate Rule 10.  Fatally defective indictments are in the same class of errors as subject matter jurisdiction defects.  Therefore, the Culbertson court exercised its discretion under Appellate Rule 2, suspended Appellate Rule 21, and vacated the defendant’s guilty plea.

While these cases are rays of sunshine to these particular appellants, they indicate that the facts must be pretty extraordinary before a party can hope for a life preserver to save its appeal. So stay vigilant, and as always, we will keep you informed.

–Beth Scherer