Hurricane Florence has brought flooding and other forms of misery to much of North Carolina, especially in the coastal and southeastern counties.

On Thursday, 13 September 2018, Chief Justice Martin issued a helping hand to attorneys in those areas. Pursuant to N.C.G.S. § 7A-39(b)(1) the Chief issued an emergency order  finding that “catastrophic conditions” existed in Beaufort, Brunswick, Carteret, Craven, Currituck, Dare, Hyde, Jones, New Hanover, Onslow, Pamlico, Pender, Sampson, and Tyrrell Counties.  As a result of this Order, all pleadings, motions, and other legal documents and papers that were due to be filed between Thursday, 13 September and  Monday, 17 September in those counties are deemed timely if filed before the close of business on Friday, 28 September 2018.  The Order also applies to acts that were due to be done in those counties on the above dates.

This is the first such Order under § 7A-39(b) that we can recall being issued by a Chief Justice. For readers of this blog, the most significant factor may be that the order temporarily overrules a portion of N.C. R. App. P. 27(c), which states that the time for taking an appeal, for filing a petition for discretionary review, a petition for rehearing, or a response to any of these cannot be extended.  You may ask how the Chief Justice can issue this order in light of Appellate Rule 27?  Because the Chief Justice’s order was issued pursuant to statutory authority—not the North Carolina Rules of Appellate Procedure.  And as we all know, jurisdictional requirements can be modified by statute.

Thus, for notices of appeal that should have been filed in the trial tribunals located in the above counties, the Chief’s order gives lawyers that were stranded some breathing room.

Note, however, that it was business as usual for filing and deadlines in counties not named in the Order. Critically, because the above Order does not include courts located in Wake County, the deadlines for filings due in either appellate court are not affected—even when the case originated out of one of the above counties. Examples include,

  • Notices of Appeal and Petitions for Discretionary Review from the Court of Appeals to the Supreme Court (and the responses)
  • Petitions for Rehearing;
  • Docketing of Record on Appeals;
  • Appellate Briefs.

If you are in a county named in the Order but missed an appellate filing that fell into one of the above categories, it would be wise to move for a retroactive extension of time or petition for certiorari (for Rule 27(c) deadlines) with the particular court. Similarly, if you have an upcoming deadline in any of the above counties that you will be unable to meet, consider requesting relief proactively. The Chief’s issuance of the Order suggests that such a filing would be considered sympathetically.

No doubt in light of the likelihood of continued flooding, the Chief’s Order notes that additional orders may be forthcoming.  Good Lord willing and the creek don’t rise, maybe they won’t be necessary.

Finally, all our bloggers send our thoughts and prayers to the readers affected by this catastrophic weather event. If we can be of any assistance, please let us know.

–Beth Scherer and Bob Edmunds