Last week’s batch of opinions from the Court of Appeals includes a procedurally complicated case in which the court granted a writ of certiorari–only to dismiss a large portion of the appeal “as untimely and interlocutory.”  The opinion shines light on several faulty presumptions that can trip up an appeal. Intrigued?  Read on.

In Engility v. Nell, the defendants sought review of two orders:  (1) a February 2017 order granting a motion to quash and imposing sanctions, and (2) a Rule 60 order denying relief as to the February 2017 order because the defendants contended that they had not received adequate notice and an opportunity to be heard on the motion to quash.

The key background facts are as follows:  A North Carolina court issued a third-party subpoena for Engility to produce documents to the defendants. The North Carolina subpoena was related to a previously issued subpoena in a pending Virginia action.  Engility objected to the third-party subpoena and filed a motion to quash in the Virginia court.  Engility asked the defendants to postpone the requested document production until the motion to quash could be resolved.  When the defendants refused (twice) to delay the document production, Engility filed a second motion to quash—this time in North Carolina.

Without conducting a hearing, the North Carolina court entered the February 2017 order granting Engility’s motion to quash.  In addition, the order concluded that monetary sanctions against the defendants were appropriate, but the court left the amount of sanctions to be determined at a later time.

Rather than filing an immediate appeal, the defendants filed a Rule 60 motion seeking relief from the February 2017 order.   When the trial court entered a subsequent order denying Rule 60 relief, the defendants noticed an appeal from both orders.

That notice of appeal ballooned into a mini-lesson on appellate practice and procedure, including some presumptions to avoid:

First, in North Carolina state court appeals, Rule 60 motions do not toll the deadline for filing a notice of appeal.  Therefore, the notice of appeal from the February 2017 order was untimely.  Nonetheless, the Engility court issued a writ of certiorari to excuse the defendants’ failure to timely appeal from the February order.

Second, when objections and amendments to a proposed record are served (or the time for doing so expires), the time for filing the settled record begins to tick—even when the parties continue to negotiate the contents of the final record.  Not understanding this, the defendants in Engility filed the final appellate record outside of the 15-day deadline.  That prompted a motion to dismiss the appeal by the plaintiff for failing to comply with Appellate Rule 12.  Thankfully for the defendants, the appellate court entered an order granting them a retroactive extension of time as to the filing of the appellate record.

Third, an appellate court can issue a limited writ of certiorari that permits review of only some of the legal issues raised by the appeal.  See, e.g., State v. Ross, 369 N.C. 393, 400, 794 S.E.2d 289, 293 (2016).  Given that the Engility court issued a writ of certiorari to review the February 2017 order, one might assume that the challenges to that order were resolved on their merits.  The appellate court, however, actually dismissed the appeal for lack of appellate jurisdiction.

Certiorari may issue to cure two types of appellate jurisdiction defects: (1) an untimely notice of appeal, and (2) when no statutory right to appellate review exists.  The Engility court granted certiorari as to the untimely appeal but concluded that the sanctions component of the February 2017 order was a non-appealable interlocutory order (because the trial court had not yet determined the amount of costs and fees).   In other words, the writ of certiorari issued only to excuse the notice of appeal defect and not the absence of a statutory right to immediate appellate review.

I do, however, find it interesting that the appellate court issued a writ of certiorari only to dismiss the appeal from the February 2017 order for lack of appellate jurisdiction.  Given that certiorari is a writ of grace, the appellate courts usually issue certiorari only when there is prima facie merit to the underlying appeal.

Fourth, what constitutes a final judgment or order is not always intuitive.  As noted above, the February 2017 order was a non-appealable interlocutory order.  However, the appellate court reviewed the Rule 60 order as a “final judgment of a superior court from which an appeal of right may be taken to this Court.”  The Engility court acknowledged that a Rule 60(b) motion may only be used to challenge final (rather than interlocutory) judgments and orders.  Nonetheless, the court reviewed the Rule 60 order on its merits.  It appears that the Engility court treated the portion of the February 2017 order quashing the subpoena as a final judgment.  I am guessing that the court determined that an order disposing of a motion to quash, but reserving the question of whether to impose Rule 11 sanctions (or in this case, the amount of Rule 11 sanctions) as two distinct judgments.  See generally Duncan v. Duncan, 366 N.C. 544, 546, 742 S.E.2d 799, 801 (2013).

Fifth, showing error is not enough.  An appellant must demonstrate harm or prejudice.  See N.C. R. Civ. P. 61.   The Engility court denied relief from the Rule 60 order because although the trial court may have committed procedural errors in ruling on the motion to quash, the defendants’ appellate briefs contained no argument that defendants had meritorious defenses to the motion to quash.

On a completely unrelated note, another dissenting opinion–this time in State v. Bursell– will send yet another Appellate Rule 2 “exercise of discretion” disagreement to the Supreme Court.   As noted previously, the appellate courts’ discretionary authority to invoke Appellate Rule 2 is a hot issue.  I see two potential ways for the Supreme Court to avoid the Appellate Rule 2 issue in Bursell: (1) by holding that a dissent as to whether to exercise Appellate Rule 2 discretion presents no actual dividing issue, see Steingress, 350 N.C. 64, 67, 511 S.E.2d 298, 300 (1999), or (2) by relying on the mysterious  “apparent from the context” exception to Appellate Rule 10.  Regardless, this is an area we will continue to monitor closely.

I am interested to know your thoughts.  Let me know in the comments below.

–Beth Scherer