If you don’t put postage stamps on your holiday cards, they aren’t going to make it to their intended destinations. Similarly, if you don’t have a file stamp on the order you are attempting to appeal, you aren’t going to get a ruling on the merits from the appellate court.  At least that’s what the Court of Appeals held in its opinion on Tuesday in McKinney v. Duncan, involving an attempted appeal of contempt orders.  The trial court had issued a number of orders relating to the defendant’s alleged violation of civil no-contact orders; first orally announcing the order in open court, and then subsequently reducing the orders to writing and signing them.  However, the orders “[did] not bear a file stamp or other indication that they were ever filed with the clerk of court.  As a result, the record fail[ed] to establish that the orders were entered.”  Absent a properly entered order, the Court held that it did not have jurisdiction over the appeal and dismissed it.

The Court held that this result was mandated by prior precedent, citing In re Thompson.  But was it? As discussed on the blog back in April, the General Assembly passed House Bill 236, part of which was specifically intended to address the holding in In re Thompson that an order that was never filed-stamped was not “entered,” and therefore the 30-day appeal period had not yet begun to run. The effect of the change is that an order or judgment may be deemed “filed” or “entered” even without a file stamp; Rule 5(e)(3) of the North Carolina Rules of Civil Procedure now provides that:

The failure to affix a date stamp or file stamp on any order or judgment filed in a civil action, estate proceeding, or special proceeding shall not affect the sufficiency, validity, or enforceability of the order or judgment if the clerk or the court, after giving the parties adequate notice and opportunity to be heard, enters the order or judgment nunc pro tunc to the date of filing.

Could the Appellant in McKinney have used this new rule to save his appeal from dismissal?  If so, how?  Would the appellant have moved for nunc pro tunc entry?  And what would the “opportunity to be heard” look like?  A hearing where the parties submit evidence as to the “date of filing?”  What would that evidence be?  Would it simply be the date the orders were signed by the judge?  Would there need to be testimony from the employees of the Clerk’s office regarding when the filing occurred?  Subsection 5(e)(1) allows that the “the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date…”  Could the argument be made that the date the trial court signs an order now becomes the date of “filing,” even if there is a file stamp that shows a later “filing?” Comment away below.

-Patrick Kane