This week, the Court of Appeals added some nuance to an issue that has plagued appellants for many years: the calculation of the appeal period when a judgment is not properly served but an appellant nonetheless has “actual notice” that it was entered.
In North Carolina, the 30-day appeal clock generally begins to run on the date the judgment or appealable order is “entered” in the court file. N.C. R. App. P. 3(c)(1). If, however, the judgment is not served within three business days, the 30-day period begins on the date of service. N.C. R. App. P. 3(c)(2).
Note that both subsections envision the appeal period being triggered by service of the judgment. But what happens if the judgment isn’t received timely?
With the Appellate Rules remaining silent on that issue, the Court of Appeals has developed an “actual notice” overlay on Rule 3. Under this line of cases, the 30-day appeal period still runs from the date the judgment is entered so long as the would-be appellant receives “actual notice” of the judgment within three business days thereafter. Put differently, an appellant’s receipt of a copy of the judgment within three business days after it is entered acts as a complete substitute for the appellee’s proper and timely service of that judgment.
With “actual notice” acting as an unwritten exception to the written rule, you might assume that an appellee would have to prove that the appellant had actual notice in order to justify dismissal due to an untimely notice of appeal. Not so, the Court of Appeals held this week in Dotson v. Barber, an unpublished opinion arising in the family-law context.
In Dotson, the father filed a notice of appeal six months after entry of an appealable order. In the notice of appeal itself, the father stated that he had “not yet been served with a copy of the filed Order.” The father reiterated that fact in his appellant’s brief. The mother did not file an appellee’s brief. So, all the Court of Appeals had to go on was the father’s representation.
That representation was not enough, the panel concluded. Because “Father presents no evidence or argument that he did not receive actual notice within the time period designated by Rule 3(c)(1),” his notice of appeal was untimely.
But why should the appellant have to prove that the “actual notice” exception doesn’t apply?
To be sure, it is a best practice for appellants to clearly explain in their briefs how they calculated—and complied with—their appellate deadlines. Our Court of Appeals has a heavy caseload. We should all be making their work easier, not harder.
At the same time, there is some tension between Dotson and a published case from a few years back. In Brown v. Swarn, the Court of Appeals held:
that the burden is on the appellee to show that the appellant, in fact, received actual notice more than thirty days before the appeal to warrant a dismissal of the appeal. That is, where there is no certificate in the record showing when the appellant was served with the judgment, it is not the appellant’s burden to show when (s)he received actual notice.
So why would a case like Dotson come out the other way? In my view, the result may stem from our appellate courts’ oft-repeated maxim that the provisions of Rule 3—including the time limits for appealing—are “jurisdictional.” This truism glosses over some important historical changes to the relevant statutes and rules. See Scherer & Leerberg, North Carolina Appellate Practice and Procedure, § 28.02. And in any event, the “actual notice” exception is not what one ordinarily thinks of as a “provision of Rule 3,” since it is judicially created.
In addition, as Beth and I discuss in the treatise, the word “jurisdictional” can mean lots of different things in this context. See id. The requirement that the notice of appeal be filed within a certain time is what we think of as a “constructive jurisdictional requirement”—a rule-based requirement that has the force of statutory law.
But in Dotson, the father showed prima facie compliance with his appellate deadline in his notice of appeal and appellant’s brief, noting that he had never received service of the appealable order. Should that be enough to invoke the jurisdiction of the Court of Appeals, or did the father violate a “constructive jurisdictional requirement,” justifying dismissal of his appeal?
Regardless, that question doesn’t seem to have been the panel’s focus. Instead, the panel may have been more concerned with the quantum of the father’s proof that his notice of appeal was timely. That’s what Beth and I call a “proof-of-jurisdiction requirement.”
Although our appellate courts have not drawn the distinction between true/constructive jurisdictional requirements and proof-of-jurisdiction requirements, we think there is an important difference. Here’s one way to think about it: if the Court of Appeals had heard the merits of the father’s appeal (as of right, and without invoking Rule 2), would the panel have violated the North Carolina constitution or statutes? Or did the panel just decide that it wasn’t clear enough whether the notice of appeal was timely filed, and erred on the side of dismissal instead of overlooking the flaw?
Does that distinction matter? After all, only a violation of a true/constructive jurisdictional requirement should require dismissal. A violation of a proof-of-jurisdiction requirement, in contrast, could be viewed as a “nonjurisdictional defect”—the kind that Dogwood Development & Management. Co. v. White Oak Transport Co. encourages the courts to overlook when practicable.
What say you? Is the “actual notice” line of cases a fair way to protect the goal of finality? And if so, should the courts give appellants the benefit of the doubt, or require them to prove up their rule-compliance with more specificity?
EBS Follow-up on 1/7/2022: This opinion appears to also conflict with the Adams v. Langdon (N.C. Ct. App. 2019). (“Under Brown, unless the appellee argues that the appeal is untimely, and offers proof of actual notice, we may not dismiss. Appellee-Plaintiff has not argued Intervenor’s appeal is untimely or offered proof of Intervenor’s actual notice of the 9 October 2017 Order to Dismiss; therefore, Intervenor’s Notice of Appeal from that Order is deemed timely filed.”).