A lot of mistakes can be fixed, but those depriving an appellate court of jurisdiction are not usually among them. Unless the appellate court deems the appeal to raise issues of great importance and to present a compelling case for reversal, jurisdictional errors are usually fatal.
Those exceptions are rare. But this week, a panel of the North Carolina Court of Appeals found Doe v. City of Charlotte to be just such a case.
In Doe, the plaintiff accused a law enforcement officer of charging her with misdemeanor child abuse without probable cause, motivated in part by racial or socioeconomic biases. On the merits, the Court of Appeals found issues of material fact that prevented entry of partial summary judgment, reversing the trial court’s order to the contrary.
But before reaching the merits, Judge Dietz took the time to explain—in plain English—the jurisdictional mistakes made by the plaintiff “for the benefit of the parties in this case and for future litigants.” So, future litigants, take heed!
First, the Court reminded us that Rule 59(e), which allows a “motion to alter or amend a judgment,” can only be filed after a trial. It is not an appropriate vehicle to further a request for reconsideration. That kind of relief is more appropriately sought via a “motion in the cause” under Rule 7 that asks the trial court to exercise its power under Rule 54(b) to revisit interlocutory orders.
The reason that our appellate courts end up policing Rule 59 motions and the like so frequently is that litigants often rely on their pendency to “toll” their time for appeal. But, under longstanding Court of Appeals precedent, the filing of a timely but improper post-trial motion is ineffective at tolling the deadline to appeal.
If you pause here for a moment, you might see that the law could have evolved another way. Appellate Rule 3 allows for tolling “if a timely motion is made by any party for relief under Rules 50(b), 52(b), or 59 of the Rules of Civil Procedure.” The plain language of Rule 3 does not require that the motion be meritorious or proper, just that it be “timely.” Nevertheless, and perhaps to discourage needless delays, the Court of Appeals will often look behind the face of a purported “Rule 50(b), 52(b), or 59” motion to test for procedural propriety. The Doe Court did exactly that.
Second, the Court reminded the bar that a trial court’s so-called “Rule 54(b) certification”—that there is no just reason for delaying an appeal from a partial judgment on some but not all claims—must be included in the partial judgment itself to support an appeal therefrom. But wait! What if the trial court issues a partial judgment and it doesn’t include the magic words? There’s an “easy workaround”: just ask the trial court to issue an amended partial judgment that does include the magic words.
Third, as we have discussed on this blog many times, an appellant invoking the “substantial right” pathway to an immediate appeal must explain in detail how the interlocutory order on appeal affects a substantial right of the appellant that would be lost absent immediate appeal. This explanation is especially important when the “substantial right” implicated is the risk of inconsistent verdicts, because that risk may only arise because of the peculiar facts or procedural history of a particular case.
Don’t miss a key lesson from Judge Dietz here: “outside of a few exceptions such as sovereign immunity, the appellant cannot rely on citation to precedent to show that an order affects a substantial right.” Yes, you read that correctly. Because the substantial-right doctrine must be applied on a case-by-case basis, citation to precedent is not enough. Sure, those precedents are helpful and persuasive, but appellants have to do the hard work of explaining why the same result makes sense on the facts of the current case.
Fourth, if all else fails, the appellate court can still exercise its certiorari jurisdiction. The Court of Appeals has the statutory power to do so sua sponte under N.C. Gen. Stat. § 7A-32(c) (“The Court of Appeals has jurisdiction . . . to issue the prerogative writs, including . . . certiorari, . . . in aid of its own jurisdiction.”). But litigants should not rely on such grace or sneak a request for certiorari into a footnote in some other filing, the panel explained. They should file a freestanding petition for writ of certiorari under Appellate Rule 21.
In cases where appellate jurisdiction is questionable, then, there will often be a motion to dismiss filed by an appellee and a petition for writ of certiorari filed by the appellant. The arguments overlap somewhat, but not completely. After all, the former is a debate over jurisdiction as of right, while the latter is a debate over jurisdiction as a matter of discretion.
In short, this is the kind of opinion that provides a helpful primer for infrequent appellate practitioners and a great refresher for the regulars.