I. You Can’t Have One Without the Other: Notice of Appeal Must Designate Both Final Judgment and Intermediate Order
Approximately three years ago, I blogged on Majerske v. Majerske, an unpublished Court of Appeals decision that dismissed an appeal for a notice of appeal defect. Reason: The notice of appeal identified the intermediate order that the appellant was challenging on appeal, but not the trial court order that converted the case into a final judgment.
A few weeks ago, the Court of Appeals issued a new opinion—this time published— dismissing an appeal under the same reasoning as Majerske. See Manley v. Maple Grove Nursing Home.
Our blog post on Majerske analyzed the language, history, and the various equitable defenses (i.e., functional equivalence and substantial compliance doctrines) surrounding Appellate Rule 3(d)’s requirement that a notice of appeal should “designate the judgment or order from which appeal is taken.” If you are interested in a philosophical discussion as to whether a different conclusion could or should have been reached on this issue, take a look at the Majerske blog post.
But because Manley represents the first published authority on this issue, I leave you with this warning from the opinion:
[I]n order to properly appeal an interlocutory order, an appellant must designate both the interlocutory order and the final judgment rendering the interlocutory order reviewable in its notice of appeal, since “the appellate court obtains jurisdiction only over the rulings specifically designated in the notice of appeal as the ones from which the appeal is being taken.”
II. Oops!… [Someone] Did It Again: The Recycling of “Form” Notices of Appeal Continues to Plague Business Court Litigants Appealing Directly to the Supreme Court
On a slightly related front, our friends at the It’s Just Business Blog note that the Business Court continues to grapple with a different type of Appellate Rule 3(d) defect: parties naming the wrong appellate court in their notices of appeal. (If you doubt how often this mistake occurs, see here and here). A new Business Court opinion exudes frustration with the Business Court’s inability to do anything other than dismiss notices of appeal with these types of inadvertent defects. See 2019 NCBC 36 ¶ 2 (“The Court here again concludes it must dismiss the appeal, even though the jurisdictional defect was clearly inadvertent and the record would allow for no finding that Defendant was surprised as to the matter being appealed from or otherwise suffered prejudice.”); id. ¶ 19 (“Accordingly, while the Court takes no pleasure in doing so, it concludes that it must dismiss the appeal.”).
Historically, the Supreme Court has been fairly forgiving of these types of unwitting notice of appeal errors. We will have to wait and see if this trend holds.
III. Why Do You Have To Be So Complicated? Federal System Continues to Encourage Simple Notices of Appeal Juriprudence
Which brings me to my final points: are dismissals truly compelled under Appellate Rule 3(d) for defects that are not misleading? Is noticing an appeal too technical and prone to error in our state appellate court system? And more philosophically, what should be the purpose of a notice of appeal?
The Federal Rules of Appellate Procedure have long taken a holistic approach to notices of appeal. For example, Federal Appellate Rule 3 has long stated that “[a]n appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.” As far back as 1979, the advisory committee notes clarified that “it is important that the right to appeal not be lost by mistakes of mere form. . . . [S]o long as the function of notice is met by the filing of a paper indicating an intention to appeal, the substance of the rule has been complied with.”
When federal courts exhibit a tendency to slip back into formalistic notice of appeal patterns, SCOTUS typically responds with an opinion or amendment that returns the federal courts to a more functional and user-friendly approach. See, e.g., cases discussed here. Most recently, the Supreme Court’s Judicial Conference Advisory Committee circulated a proposed amendment to Federal Appellate Rule 3 related to the content of a notice of appeal. The proposal clarifies that naming the final judgment in the notice of appeal automatically encompasses all intermediate rulings that have merged into the final judgment. Not only is there no need to designate specific intermediate orders in the notice of appeal, but doing so “out of an abundance of caution” will not limit an appellant’s ability to challenge intermediate rulings not designated in the notice of appeal. In addition, designating a post-judgment order in a notice of appeal will automatically bring up the final judgment for appellate review. If history is any indication, these proposals have a good chance of being adopted.
I am interested to know your thoughts. Do you think North Carolina’s notice of appeal requirements are overly complicated? Should North Carolina explore a simpler notice of appeal system? Or are there significant benefits to maintaining a system that requires an appellant to identify the judgment and order(s) it seeks to challenge in its notice of appeal?
Let me know in the comments below.