Except for appeals in really old cases, appeals from a final judgment entered by a Business Court judge are properly taken to the Supreme Court of North Carolina, not the Court of Appeals.

So what happens when a party files a notice of appeal in a Business Court case that mistakenly names the Court of Appeals as the court to which appeal is taken?

The Business Court held this week in Zloop, Inc. v. Parker Poe that such an appeal must be dismissed.  After all, the Supreme Court has held that “the provisions of [Appellate] Rule 3 are jurisdictional.”  Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000).  And, the Business Court itself has held that, as a trial tribunal, it does not have discretion to excuse non-compliance with Appellate Rule 3.  Carter v. Clements Walker PLLC, 2014 NCBC 12 (Apr. 30, 2014).

But the issue is a bit more complicated than that.  Chief Judge Gale noted the tension in certain Court of Appeals decisions that employ various doctrines to excuse such non-compliance.  Yet, jurisdictional failings are supposedly non-excusable.  Jurisdiction cannot be created by consent, and jurisdictional mistakes cannot be waived.

So what gives?

Consider this: which of these is so defective that the would-be appellant should be deprived of its right to appeal?

  • A notice of appeal filed a year late
  • A notice of appeal filed a day late
  • A notice of appeal timely submitted to the Business Court, but filed in the home county late
  • An unsigned notice of appeal
  • A notice of appeal that contains a typo as to the date the judgment was entered, but is otherwise timely
  • A notice of appeal filed in the appellate court instead of the trial tribunal
  • A notice of appeal that is directed “To The Honorable Court of Appeals of North Carolina” but states in the body that appeal is actually taken to the Supreme Court
  • A notice of appeal that is both directed to the wrong court in the appellate division and states in the body that appeal is taken to the wrong court in the appellate division

As you read that list, what rule were you applying to differentiate between those mistakes that are “jurisdictional” and those that are excusable?  Could an imperfect notice of appeal contain a mistake that in some way relates to jurisdiction but still vest the appellate court with jurisdiction to consider the appeal?

Beth has given this issue a lot of thought, and will share her thinking on this in two posts coming later this week.

**Side note:  Chief Judge Gale recognized that the underlying order in Zloop “addressed significant issues that would present matters of first impression before the Supreme Court of North Carolina.”  One of those issues is the viability of a claim for aiding and abetting a breach of fiduciary duty under North Carolina law.  Will we have to wait for the issue to arise in another case before we get the answer?

–Matt Leerberg