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A few weeks ago, the North Carolina Court of Appeals in Connor v. Connor rejected an argument that a notice of appeal signed by a pro se litigant was defective under Appellate Rule 3(d) “and thus did not confer jurisdiction.”  Appellate Rule 3(d) states that a notice of appeal must “be signed by counsel of record of the party or parties taking the appeal[] or by any such party not represented by counsel of record.” N.C. R. App. P. 3(d) (emphasis added).  While the appellant in Connor had trial “counsel of record,”  trial counsel did not sign the notice of appeal.  Instead, the individual appellant, acting pro se, signed the notice and later obtained different appellate counsel.  In rejecting the argument that the pro se notice of appeal did not confer appellate jurisdiction because the appellant had trial counsel of record, Judge Dietz wrote:

Ms. Connor’s trial counsel did not represent Ms. Connor on appeal.  Instead, new appellate counsel appeared later in the case.  It was entirely appropriate for Ms. Connor to file a pro se notice of appeal in this circumstance.

If you are unfamiliar with the history of Appellate Rule 3(d), the outcome in this case might seem fairly obvious.  However, the jurisprudence surrounding Appellate Rule 3 could be called a “hot mess.”  By way of example:

  • If trial counsel in Connor had continued to represent the appellant on appeal, would the pro se notice of appeal have conferred “appellate jurisdiction”?
  • If the notice of appeal was not signed due to inadvertence, would the appellate court have had jurisdiction to hear the appeal?
  • What if a notice of appeal mistakenly stated that plaintiff (rather than the defendant) was appealing, but the notice of appeal was signed by defendant or its counsel?
  • What if the notice of appeal was not served, or improperly served by email?
  • What if the notice of appeal has mistakenly said that appellant was appealing to the Supreme Court of North Carolina (or completely omitted the appellate court to which appeal was being taken)? Would it matter if everyone involved knew that the only appellate court with jurisdiction over the case was the Court of Appeals?

Numerous state court opinions state that the time for filing a notice of appeal is jurisdictional. Additional opinions state that the other requirements of Appellate Rule 3 unrelated to timing are jurisdictional.  Still other opinions use jurisdictional labels to describe some of the requirements of Appellate Rule 9 (appellate record) and Appellate Rule 28 (appellate briefs).

In contrast, other appellate opinions have applied equitable and pragmatic defenses to save notice of appeal defects from these same purported Appellate Rule 3 “jurisdictional” defects.  Doctrines like “functional equivalence,” “substantial compliance,” “fairly inferred,” and “waiver” are the terms usually used by these opinions.  Indeed, two Supreme Court opinions have held that the service requirements of Appellate Rule 3 are subject to a waiver defense. Hale v. Afro-Am. Arts Int’l, Inc., 335 N.C. 231, 232, 436 S.E.2d 588, 589 (1993); Blevins v. Town of W. Jefferson, 361 N.C. 578, 653 S.E.2d 392 (2007), reversing for reason states in dissent, 182 N.C. App. 675, 681–82, 643 S.E.2d 465, 469 (2007) (Geer, J. dissenting) (appellate courts should not raise notice of appeal service concerns sua sponte because service defects may be waived).

How do these opinions fit together?  Are they in conflict?  What criteria is used to determine jurisdictional requirements?  And does the phrase “jurisdictional requirement” describe a nuanced-filled concept?

Yesterday, I posted about the United States Supreme Court renouncing the federal courts’ habit of attaching jurisdictional labels to rule-based notice of appeal requirements.  Is a similar course-correction warranted in North Carolina?

To analyze this question under state law, one must first acknowledge why jurisdiction labels were historically assigned to the requirements of Appellate Rules 3 and 4.  Before 1989, many (but not all) of the time and manner requirements for noticing an appeal were set by statute.  In most instances, Appellate Rules 3 and 4 simply mirrored a statutory requirement as to when a notice of appeal was required to be filed.  As long as there was parity between a statutory requirement and the Appellate Rules, statements that the requirements for noticing an appeal were jurisdictional appeared sound.

In 1989, however, a significant change in North Carolina’s notice of appeal jurisprudence occurred.  The General Assembly repealed § 1-279, adopted § 1-279.1, and amended several other appellate statutes to provide that the time, manner, and effect of noticing an appeal would be dictated by the Appellate Rules.

With its newfound authority, the Supreme Court quickly modified the time for noticing an appeal in civil cases from 10 days to 30 days.  The Supreme Court also abolished oral notices of appeal in civil cases.  See N.C. R. App. P. 3 (1989), reprinted at 92 N.C. App. 761.  The Supreme Court made similar changes to Appellate Rule 4, but changed its mind and reinstated oral notices of appeal in criminal cases about six months later.  324 N.C. 585.

So, what is the basis for classifying  a requirement found only in the Appellate Rules as jurisdictional?  After all, the title of Appellate Rule 1(c) states that the Appellate “Rules Do Not Affect Jurisdiction,” and “shall not be construed to extend or limit the jurisdiction of the courts of the appellate division as that is established by law.” Id. (emphasis added).  Recognize any parallels to the approach taken by the federal appellate courts in Hamer and Oliver (the two opinions I blogged on yesterday that hold that a requirement for noticing an appeal is jurisdictional only if it is found in a statute)?  Unlike the United States Supreme Court, does the Supreme Court of North Carolina have the authority to adopt jurisdictional requirements?

In my humble, unpublished opinion, the answer to this last question is “no, but sort-of.”  A key distinction exists between the federal result in Oliver and the Appellate Rules’ timing requirement for noticing an appeal.  Appellate Rule 27(c) prohibits either the trial or appellate courts from “extend[ing] the time for taking an appeal . . . prescribed by these rules or by law”—including by utilizing Appellate Rule 2.  N.C. R. App. P. 28(c) (emphasis added).   In other words, the only tool that can save an untimely notice of appeal is a writ of certiorari.

Thus, Appellate Rule 27(c) makes any distinction between jurisdictional and rule-based requirements with respect to the time for noticing an appeal an academic inquiry.  The deadline for noticing an appeal may not be a “true” jurisdictional requirement set by statute, but the Supreme Court has essentially told the inferior courts that they must treat the time for noticing an appeal as a “constructive” jurisdictional requirement that may not be extended or excused by any equitable defenses.  Unlike true jurisdictional requirements set by statutes, the Supreme Court may delete, modify, or expand constructive jurisdictional requirements by amending Appellate Rule 27.   The Supreme Court also has the authority to change the time and manner for noticing an appeal under Appellate Rules 3 and 4 by amending the Appellate Rules (just like it did in 1989).

But what about a timely notice of appeal that is defective only as to a form requirement of Appellate Rule 3?  Are these constructive jurisdictional requirements or something else?   The courts’ authority to suspend or excuse deficiencies as to the form of a notice of appeal are not restricted by Appellate Rule 27 or Appellate Rule 2.  Indeed, the Supreme Court’s 1975 commentary to Appellate Rule 3 suggests that the Supreme Court never intended to assign jurisdictional significance to Appellate Rule 3(d)’s form requirements. See N.C. R. App. P. 3, Drafting Committee Note (1975), reprinted at 287 N.C. 671, 684. (stating that Appellate Rule 3(d) was intended to save “against occasional confusion” as to what was being appealed and noting that “Federal courts under a comparable rule have not commonly treated any but the most misleading error in the required specification as vitiating the appeal”).

Might this explain why some appellate opinions have utilized equitable and pragmatic defense to overlook or excuse minor deficiencies as to the form of timely notices of appeal?  See, e.g., Stephenson v. Bartlett, 177 N.C. App. 239, 241, 628 S.E.2d 442, 443 (2006); Von Ramm v. Von Ramm, 99 N.C. App. 153, 156–57, 392 S.E.2d 422, 424 (1990).  After all, when was the last time a “waiver,” “functional equivalent,” “fairly inferred,” or  “not misled” argument was successfully applied to a true or constructive jurisdictional requirement?  Has the Supreme Court already signaled that the non-timing requirements of Appellate Rule 3 are not really jurisdictional requirements? See Hale v. Afro-Am. Arts Int’l, Inc., 335 N.C. 231, 232, 436 S.E.2d 588, 589 (1993) (untimely service of a notice of appeal under Appellate Rule 3 can be waived); Blevins v. Town of W. Jefferson, 361 N.C. 578, 653 S.E.2d 392 (2007).   And if it has, what is the extent of a court’s discretion to address these types of violations?  Should a distinction be drawn between true and constructive jurisdictional requirements and rule-based requirements that simply relate to jurisdiction?

Remember the song, “The Things That Make You Go Hmmmm….”?  Jam out your thoughts and theories in the comments below.

–Beth Scherer

P.S.  From time to time, statutes governing particular cases will specify a time or manner for noticing appeals.  Most statutory requirements for noticing an appeal are true jurisdictional requirements.  They will also trump any conflicting requirement for noticing an appeal found in Appellate Rule 3, 4, or 18.  But that topic is for another day.

In addition to our petition tracker for PDRs already granted by the Supreme Court, we also keep an eye on interesting petitions pending before the Court. Below are recently filed petitions that, among other things, ask the Supreme Court to consider dumping the State’s contributory negligence doctrine and to stop the State from informing the public about an upcoming voter identification requirement. If there are other interesting petitions that have been filed recently, send me an email or let us know in the comments!

–Troy

Holmes v. Moore, 342P19
Issue: (Bypass petition) By statute, the State is currently informing voters about a photo identification requirement that will take effect in 2020. Did a three-judge panel of the superior court err by refusing to preliminarily enjoin that voter-education effort during the 2019 election season? (The underlying lawsuit challenges whether the General Assembly’s statutory implementation of the State Constitution’s requirement of voter identification violates the State Constitution’s equal protection clause.)

Saunders v. Hull Property Group, LLC, 325P19
Issue: (Bypass petition) Should the State abandon the doctrine of contributory negligence and adopt comparative negligence?

State ex rel. City of Albemarle v. Nance, 327P19
Issue: For purposes of standing to bring suit, must a municipality take a formal vote and pass a resolution authorizing the action?

It is beginning to feel like a bi-annual holiday tradition between me and our blog readers: another rule-update summary.  Yesterday afternoon, the Supreme Court issued its latest order amending the North Carolina Rules of Appellate Procedure.  The amendments impact Appellate Rules 3, 3.1, 4, 9, 11, 12, 13, 18, 26, 28, 30, 37, 41, brand new Appellate Rule 42, as well as Appendixes A, B, and D (whew)!

Based on my initial analysis, below is a summary of those amendments.

The appellant’s brief is now due 30 days from the filing (rather than mailing) of the printed record

Under the prior appellate rules, the appellant’s initial briefing deadline was tied to the appellate clerk’s mailing of the printed record to the parties. This prior rule was a remnant of a bygone era in which (1) the appellate clerk selected from the settled record a subset of documents to include in the printed record, and (2) the appellate court’s “typing pool” reproduced, formatted, and paginated those printed record pages.  Because the precise contents of the printed record were unknown when the settled record was filed, the appellant’s briefing deadline was tied to the mailing of the newly-created printed record.

In modern appellate practice, the printed record is basically produced verbatim from the settled record filed by the appellant.  Other than (1) affixing that iconic “goldenrod yellow” cover, (2) inserting the date the record was filed and docketed, and (3) dividing large printed records into multiple volumes, the printed record is essentially reprinted as filed by the parties.

Because of the new rule, appellants in the New Year will have a little less time to prepare and file their initial appellate brief.

I also suspect that this change may soon end the appellate clerk’s practice of physically mailing a printed record to the parties—and perhaps with it, the disappearance of that beloved “goldenrod yellow” cover.

Under Appellate Rule 26(a)(1), a printed record that is not hand-delivered to the clerk’s office or electronically filed is “deemed filed as of the date of mailing, as evidence by the proof of service.”  Consequently, when a party mails its printed record, the file-stamp date affixed by the clerk to the printed record may be different from the record’s filing date under Appellate Rule 26(a)(1). In these instances,  the appellant’s briefing deadline likely would be calculated 30 days from the date the printed record was deemed filed by mail–and not 30 days from the date the appellate clerk received and file-stamped the printed record.

Parties must now file only a single copy of record-related supplements

Under the old rules, parties were required to file one copy of the printed record and transcripts.  All other record documents had to be filed in triplicate (unless the document was e-filed in the Supreme Court, which has long accepted electronically filed records). 

In the New Year, the appellate courts appear to be beefing up their housekeeping practices by continuing to dispense with extra paper. Under the new rules, the appellant will only file a single copy of any Rule 9(d) Documentary Exhibits, Rule 11(c) Supplement, Rule 18 Supplement, or Rule 9(b)(5) Supplement. A similar one-copy change applies to memoranda of additional authorities.

While in the Court of Appeals parties cannot presently e-file most components of the appellate record, I feel confident that the ability to electronically file all, if not most, record components is a feature that will be coming soon.

Overhaul to Appellate Rule 3.1

Rule 3.1 appeals have always seemed a bit like a three-headed monster.  For example, the process of settling the record bore little resemblance to the normal record-settlement process, with parties who disagreed about the contents of the record filing separate records on appeal.  As of January 2019, though, a subset of Rule 3.1 appeals (i.e., TPR cases) will be appealed directly to the Supreme Court. Because the old rule only contemplated direct appeals to the Court of Appeals, this jurisdictional shift necessitated a bit of a tweak to Appellate Rule 3.1.

Rather than applying a Band-Aid fix, the Supreme Court has given Rule 3.1 an overhaul.  A few noteworthy changes include:

  • Transcript Delivery. The court reporting manager and the court reporter now get a little extra time to prepare and deliver Rule 3.1 transcripts to the parties in indigent appeals (but a little less time in non-indigent Rule 3.1 appeals).
  • Service of Transcripts.  The court reporter is now required to serve copies of the appellate transcript on all parties to the appeal. This is a complete 180-degree change from the prior rule, which stated that the transcript only had to be served on the ordering party.  Issues regarding who is supposed to pay for the “appellee’s copy” of the transcript have plagued appellate practitioners for decades. This change basically means that in Rule 3.1 cases, the ordering party will purchase a single “appellate transcript” that the transcriptionist will be required to deliver to all parties. The ordering party’s per-page transcript price may increase a bit, but ultimately everyone will get a copy of the transcript.
  • Proposed Record Process. The process in Rule 3.1 appeals for serving a proposed record (as well as objections or amendments) now follows the basic structure found in Appellate Rule 11(c)—just on a more abbreviated schedule.  Nonetheless, the appellant now has an extra five days to serve the proposed record on appeal.
  • Record Disputes. When the parties to the appeal disagree regarding the contents of the record on appeal, the regular procedures for settling the record found in Appellate Rule 11 will be followed.  Consequently, parties in Rule 3.1 cases will no longer file separate appellate records when they disagree on content.  Instead, disputed content will usually be placed in a Rule 11(c) Supplement, while in more limited circumstances judicial settlement of the record may be necessary.
  • No separate briefing rule.  Although the old and new briefing deadlines are essentially the same (except that the appellant’s briefing deadline in Rule 3.1 cases has always been tied to the filing of the printed record), the previous version of Appellate Rule 3.1 had a separate provision regarding the timing for filing appellate briefs.  New Rule 3.1 does not. Thus, the briefing requirements are governed by the same timing rules found in Appellate Rules 13 and 28(h).
  • Electronic filing mandatory.  Unless an exception is granted, appellate counsel is required to file all documents in Rule 3.1 cases electronically—which will include all record components in Rule 3.1 cases taken to the Court of Appeals.  This is a significant change from traditional practice, in which attorneys that were more comfortable with paper filings could continue to do so even after the advent of e-filing capabilities.
  • No-merit briefs.  Revised Rule 3.1 contains different language about no-merit briefs, but it does not appear to resolve the debate among Court of Appeals judges about how the appellate courts are to review such cases.  The Supreme Court may have decided to resolve those differences of opinion through the Rule 3.1 cases now making their way to the Supreme Court.
  • Oral arguments.  The revised Rules do not explain whether (or to what extent) oral arguments will be different for Rule 3.1 cases.  That is likely an example of the evolving nature of oral arguments in these appeals.
  • No priority (at least on paper).  Old Rule 3.1 provided that those cases would be “given priority” over other cases before the Court of Appeals.  The revised Rule 3.1 contains no such language.

Revised Appeal Information Statement

Appellate Rule 41, which addresses Appeal Information Statements, has been gutted. It now provides simply:  “The appellant must complete an Appeal Information Statement using the electronic-filing site at https://www.ncappellatecourts.org before the appellant’s brief is filed.”  Embedded in this sentence is a lot of new features:

  • An AIS must be electronically completed at https://www.ncappellatecourts.org;
  • An AIS is now due before the filing of the appellant’s brief, and
  • An AIS is now required in direct appeals to both Court of Appeals and the Supreme Court.  It would also presumably be required in a secondary appeal to the Supreme Court following a decision by the Court of Appeals.

The current Appeal Information Statement Form on the Court’s website (1) is restricted to appeals pending before the Court of Appeals, (2) is due “at or before” the time for filing the appellant’s brief, and (3) can be mailed.  As amended Appellate Rule 41 does not take effect until January 1, 2019, I suspect that the appellate courts will push out a new and improved online AIS form in the coming week. So stay tuned.

If you have not done so already, get your e-filing privileges lined up!   The appellate courts are moving another step further into the world of mandatory e-filings.

Introducing a New (and Improved) Appellate Rule 42: Sealed Items and Confidential Information

Back in 2009, the Supreme Court consolidated Appellate Rule 42 into Appellate Rule 1 and, in the process, reserved Rule 42 for future use. The future is here.

As of January 2019, Rule 42 will govern the handling of sealed items and confidential information in the appellate courts.  The beginning of this blog post listed numerous appellate rules being affected by these 2019 amendments.   Most of those amendments relate to the Supreme Court’s decision to take privacy-related requirements out of individual rules and, instead, move them all into newly created Rule 42.  Appellate Rule 42 has several important features:

  • Once Sealed, Always Sealed.  Items sealed in the trial tribunal remain under seal in the appellate courts.  Rather than filing a motion, counsel must attach a copy of the order, statute, or other legal authority that authorized the sealing of the item in the trial tribunal.
  • Automatic Sealing Categories.  Certain types of appeals (whether appeals of right or appeals of grace) are automatically sealed, regardless of their confidentiality status in the trial tribunal.  The types of appeals governed by this provision are as follows:
    • Abuse, neglect, dependency, and termination of parental rights;
    • Juvenile delinquency appeals; and
    • Any appeal under 7A-27 involving a sexual offense committed against a minor.
  • Stipulations.  Parties must insert a stipulation in the record regarding the agreed-to pseudonyms that the parties will use when referring to minors in their briefs, petitions, and motions.
  • Motions to Seal.  When an item was not sealed in the trial tribunal or automatically by operation of Rule 42, parties may move the appellate court for permission to seal the item.
  • New Notice for Sealed Documents.
    • Sealed documents must include the following notice on the first page: “UNDER SEAL AND SUBJECT TO PUBLIC INSPECTION ONLY BY ORDER OF A COURT OF THE APPELLATE DIVISION”
    • If the document under seal is included within another document, then this notice must also be displayed at the top of the first page of that other document. In other words, if a party attaches a sealed record document to its appellate brief, then the first page of the appellate brief must contain the notice as well.
    • Non-documentary exhibits filed under seal must be submitted in a box or envelope that contains the notice.
    • The previous notice mandated under old Appellate Rule 3.1 is no longer required.
  • Expanded List of Protected “Identification Numbers.” 
    • Under the old rules, only Social Security numbers were specifically required to be redacted.
    • Under new Rule 42, the following numbers must either be excluded or redacted from all documents filed in the appellate courts.
      • Driver license numbers,
      • Financial account numbers,
      • Social Security numbers, and
      • Tax identification numbers
    • The Rule also recognizes an exception whenever one of the above numbers is “necessary to the disposition of the appeal,” in which case a party must move to seal the document in which the number appears.

Those are the big changes I saw on my initial review.  If you see any other big or interesting changes, let me know in the comments below!  Happy Holidays!

–Beth Scherer

 

In light of Matt’s post from yesterday, does anyone perceive an uptick in dismissals of appeals for notice of appeal problems? Are North Carolina lawyers unique in their propensity to screw up notices of appeal?  Are dismissals for notice of appeal violations common in other appellate systems?  Let’s say, for instance, the federal appellate courts?  If not, why?  Matt and I have been discussing and debating these questions for a few months.  Yesterday’s Business Court dismissal prompted me to finally put some of my thoughts on the blogosphere.

A few months ago, the Maryland Appellate Practice Blog issued a fascinating post on an untimely criminal appeal in the Fourth Circuit.  In United States v. Oliver, the Fourth Circuit addressed whether the appellate court had the authority to sua sponte dismiss an untimely criminal appeal.

For people who practice primarily in our state appellate courts, this question likely seems bizarre.  Engrained in our psyche is the principle that an appellate court has an independent duty to assess whether a notice of appeal was timely filed.  That opinion got me thinking:  Are all jurisdictional labels created equal?

In federal civil appeals, this general rule is that an untimely notice of appeal is a jurisdictional defect.  However, a different rule applies to federal criminal appeals.  Moreover, even in civil appeals, the federal courts have historically exercised appellate review over a defective, but timely, notice of appeal that has not misled the other party.  Why the differences?

Over the past few years, the United States Supreme Court has engaged in a significant course correction concerning the federal courts’ misuse of jurisdictional labels.  For decades, the federal appellate courts (including the Supreme Court) had a bad habit of mischaracterizing rules of appellate procedure, elements of causes of actions, and various claim-processing requirements as “jurisdictional limitations.”  Recognizing (1) the problems and temptations associated with indiscriminately labeling both rule and statutory requirements as jurisdictional, and (2) the separation-of-power concerns that arise when jurisdictional labels are attached to court-prescribed rules of procedure, the United States Supreme Court said, “mea culpa” (sort of).  See Hamer v. Neighborhood Housing Servs. of Chicago, — U.S. — (2017) (acknowledging Supreme Court’s history of “mischaracteriz[ing] claim-processing rules or elements of a cause of action as jurisdictional limitations, particularly when that characterization was not central to the case, and thus did not require close analysis” (emphasis added)).  To clear up the confusion, a unanimous Supreme Court in Hamer announced a “clear and easy to apply” rule of decision for determining what constitutes a true jurisdictional requirement:

If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category.

In federal criminal appeals, the deadline for filing a notice of appeal is set by Fed. R. App. P. 4(b)—and not by statute.  Therefore, the time for filing a criminal notice of appeal is not a jurisdictional requirement under Hamer.

In United States v. Oliver, the distinction between rule-based and statutory notice of appeal deadlines precipitated an inquiry as to whether an Appellate Rule 4(b) timing defect could be forfeited by the government or if the Fourth Circuit could sua sponte dismiss the appeal.  The government in Oliver did not raise the timing problem with the notice of appeal until well after the merits of the case had been briefed.  The Fourth Circuit concluded in Oliver that it had the power to dismiss the untimely criminal appeals sua sponte, but that it would do so only under extraordinary circumstances.  [H/T to the Maryland Appellate Practice Blog for its in-depth analysis of Oliver and a follow-up case.].  Thus, for federal criminal appeals, an untimely notice of appeal may support dismissal of an appeal (particularly when the issue is timely raised by the non-appealing party), but it does not require dismissal of the appeal because it is not a true jurisdictional limitation.

The case included a bit of “I cannot truly believe I’m writing this” news.  Before the opinion in Oliver issued, the Fourth Circuit requested supplemental briefing on the issues surrounding the untimely notice of appeal.  The government basically said, “Thanks, but no thanks.”  The Fourth Circuit then entered an order stating, “The government is directed, not invited, to file a brief.”  Awakened by the second order, the government’s attorneys filed supplemental briefing.

Common Sense Tip:  When a Fourth Circuit judge says (ever so nicely), “you may want to consider …,” it really means, “you must do. . . .”  Former and current Fourth Circuit law clerks can vouch for me on this bit of advice.

In summary, if you are handed a defective federal notice of appeal, “you may want to consider” whether it violates a rule-based or statutory requirement for noticing appeal.

-Beth Scherer

P.S.  Tomorrow I will post a follow-up “State Edition” post on this same topic.

When reading through recent batches of opinions from the North Carolina Court of Appeals, you may notice a new feature: a statement regarding the Court’s jurisdiction. While such a statement is required in an appellant’s brief, see N.C. R. App. P. 28(b)(4), it is not required in an opinion. And although the Court has addressed jurisdiction if necessary, opinions have not traditionally included a separate statement on jurisdiction when it was not in dispute. But notice the emphasis that some judges are placing on jurisdiction. Practitioners would do well to make sure that jurisdiction is properly addressed in their briefs.

In that vein, the Court’s most recent opinions provide several reminders regarding appellate jurisdiction.

In Davis v. Hulsing Enterprises, LLC, the plaintiff appealed after a jury found that the defendants were not liable for negligent rescue of an intoxicated woman who later died from alcohol poisoning. The notice of appeal only listed the judgment entered on the jury’s verdict, but the appellant’s arguments centered on the trial court’s earlier dismissal of a common-law dram shop claim. Although the Court of Appeals would not ordinarily have jurisdiction over that order, the Court found that it had jurisdiction under section 1-278, which allows for appeal of an interlocutory order “involving the merits and necessarily affecting the judgment.” The plaintiff’s objection to the order on the motion to dismiss was “inherent to the hearing” on the motion, and he identified the order in the record and the proposed issues.

On the other hand, the Court found that that it did not have jurisdiction in Stokes v. Crumpton. There, the parties agreed to arbitration under the Family Law Arbitration Act. After an arbitration award was entered, the plaintiff allegedly discovered evidence that the award was procured through the defendant’s fraud. The plaintiff filed a motion to vacate the award and filed a motion to compel discovery he sought to bolster his fraud theory. The trial court denied the motion, and the plaintiff appealed. The Court of Appeals held that the order denying the motion to compel was not appealable under the arbitration act and did not affect a substantial right. The Court recognized that orders denying discovery can affect a substantial right if that discovery is “highly material” to a “critical question to be resolved in the case.” But here, although there may have been “suspicious” circumstances surrounding the defendant’s behavior, the Court did not find that the plaintiff had identified any “specific, ‘objective’ evidence of misconduct” that would allow him to appeal from an interlocutory discovery order. The Court labeled the motion to compel as a “fishing expedition” and found that no substantial right was affected. Judge Calabria vigorously dissented, creating the likelihood of our Supreme Court having the ultimate word on the case.

In Roberts v. Thompson, the defendants’ dog bit the plaintiff, who brought claims for the injuries. The trial court entered an order that granted summary judgment to the plaintiff on the issue of liability, reserved the issue of damages for trial, and apparently attempted to certify the order for immediate appeal by finding that there was no just reason for delay. Relying on Rule 54, the defendants then sought to appeal—but the Court of Appeals dismissed the appeal. Because “Rule 54(b) only applies to final judgments” as to a claim or party, not an issue, the trial court could not certify its interlocutory order as immediately appealable.

Finally, in PETA v. Myers, the Court addressed “whether anyone may speak for the opossums”—and specifically those who are used in Clay County’s annual “possum drop” celebration. Seeking to put an end to this tradition, PETA had challenged the State’s issuance of certain captivity licenses for opossums. An ALJ mostly sided with PETA, and the State attempted to appeal from the trial court’s denial of review of the ALJ decision. But in the meantime, the General Assembly passed a statute that exempts Clay County from state wildlife laws regarding the treatment of opossums for a specified portion of the year. Despite the parties’ “passionate and interesting legal arguments,” the Court of Appeals concluded that the issue was moot because of the statute and dismissed the appeal.

Torn musical notes, pieces of paper
Complicated

Sometimes you fall headlong into a chorus you thought you knew by heart—only to discover the bridge is where all the action is. For appellate practitioners, that action seems to be happening more and more in orders issued by the North Carolina Court of Appeals. The latest big order highlights how trial attorneys in criminal cases giving oral notices of appeal before sentencing can create problems under the Court of Appeals’ discretionary certiorari power. The result, to borrow from Avril Lavigne, is ♫ Complicated.

1.        ♫“Why’d You Have to Go and Make [Certiorari] So Complicated?”

On October 23rd, the Court of Appeals in State v. Ingram issued an order dismissing an appeal. That order lays out a disagreement within the Court of Appeals regarding its power to issue certiorari. While we do not know (yet) who wrote and joined the majority opinion, Judge Stroud penned a dissenting opinion. Both opinions are worth an independent read. One theme of the dissent is that these types of disagreements should not “come over unannounced” to everyone but parties to the case, so consider this an announcement!

The Ingram majority dismissed an appeal because trial counsel gave oral notice of appeal before the judgment was entered. Under Court of Appeals case law, an “oral notice of appeal given before entry of the final judgment violates [Appellate] Rule 4 and does not give th[e] Court jurisdiction to hear defendant’s direct appeal.” Bound by the Court of Appeals prior statement of the law, defense counsel filed a petition for writ of certiorari.  [Hint: Jump ahead to section 3 below if you want my take on whether these premature oral notices of appeal cases are correct].

The Ingram majority applied the Supreme Court’s two-step framework from Cryan v. National Council of Young Men’s Christian Associations of United States, 384 N.C. 569, 887 S.E.2d 848 (2023), emphasizing that certiorari is discretionary and requires both a showing that error likely occurred below and “extraordinary circumstances” justifying review. Although the petition identified several potential trial errors, the Ingram majority concluded it failed at the second step by not demonstrating extraordinary circumstances such as substantial harm, waste of judicial resources, or broad issues of justice and liberty. Granting certiorari without that showing, the panel reasoned, would be legal error and thus an abuse of discretion.

The Ingram dissent faulted the majority for its reading of Cryan and for denying certiorari by order and not an opinion.   In the dissent’s view, North Carolina’s longstanding practice in criminal cases is to grant certiorari where a defendant’s intent to appeal is clear, the State is not prejudiced, and the notice defect occurred through no fault of the defendant—especially when the issues on appeal appear potentially meritorious. Cryan, the dissent argued, reaffirmed that the Court of Appeals has discretion when considering petitions, rather than imposing a rigid “extraordinary circumstances” barrier in this context. The dissent would have granted certiorari and resolved the case on the merits in an opinion, rather than order.

The dissent notes what may be a growing trend in the Court of Appeals: the use of orders, as opposed to opinions (published and unpublished), to dispose of fully briefed appeals.  Unlike opinions, orders are not “available on any searchable database—they can only be located on our electronic filing website if one already knows the specific case name or number, or by manually searching through records at the Court of Appeals Clerk’s Office.” See Ingram.  The dissent warned that the lack of written opinions undermines transparency, deprives trial courts and practitioners of guidance, and undermines public confidence in the judicial process.

The dissent also raised an interesting question under Appellate Rule 30(e): If a Court of Appeals order has all the characteristics of an opinion, do the Supreme Court’s rules suggest that these types of orders should be posted to the opinion page and reported to services like Westlaw and Lexis? 

The dissent includes a practical critique of using orders to decide important issues. If appellate practitioners do not have a way to ascertain the appellate courts’ evolving interpretations of the law, how can they be faulted for not complying with them? For example, how do we warn readers of this blog about new interpretations of the law when realistically these orders fly under the radar unless someone shares them with us? (This is less of an issue with North Carolina Supreme Court orders as that court publishes all its orders and opinions.).

If anyone has insight on why the Court of Appeals has not traditionally reported its orders to services like Westlaw and Lexis, I would love to know. (Our prior springs of historical information on the Court of Appeals, like John Connell and Frank Dail, are sorely missed). 

But in any event, wouldn’t compliance be encouraged by disseminating these substantive orders to the criminal and appellate bar?  Plus, the dangers of not publishing orders like Ingram seem particularly acute when prior published opinions have reached the opposite result.

2.         ♫“You’re Watchin’ Your Back Like You Can’t Relax:”  Gardner and Ingram’s Competing Readings of the Court of Appeals’ Certiorari Authority

The Supreme Court has frequently explained that one Court of Appeals panel cannot overrule an earlier panel. But applying that principle to the Court of Appeals’ June 2025 opinion in State v. Gardner, — N.C. App. –, 917 S.E.2d 494 (2025), might have lulled the criminal appellate bar into a false sense of security.

In Gardner, the Court of Appeals addressed the same scenario: a criminal defendant’s right to appellate review was supposedly lost due to a premature oral notice under Appellate Rule 4. Appellate counsel filed a petition for the writ of certiorari under Appellate Rule 21.

The Gardner majority treated the writ as a flexible, equitable safety valve—emphasizing that the recent Supreme Court opinion in Cryan reaffirmed, rather than narrowed, the intermediate court’s sound discretion to issue certiorari in “appropriate circumstances.” In the majority’s view, Cryan “simply reaffirm[ed] our discretion to allow petitions for writ of certiorari in appropriate cases—the scope of which is guided by our precedent and our understanding of the equitable concerns in each case.” The Gardner majority also underscored the appellate courts’ institutional preference to resolve cases on the merits in criminal cases where the defendant’s intent to appeal is evident and any defect is through no fault of the defendant.

The dissent, written by Judge Freeman, aligned with the majority views in State v. Ingram. The dissent read Cryan to impose a more structured, “per se” gatekeeping function that would require criminal defendants to show both likely error and “extraordinary circumstances” before the writ could issue.  The dissent focused on the risk of draining Appellate Rule 4 of consequence by allowing routine salvaging of defective appeals via certiorari. The Ingram dissent favored clear lines over case-by-case equity, insisting that the Supreme Court’s two-part framing in Cryan is mandatory and that appellate courts abuse their discretion if they grant certiorari without requiring the defendant to engage in a robust “extraordinary circumstances” analysis.

I read cases like Gardner to say that

  • where the record shows that the defendant’s intent to appeal was clear to the trial court and prosecuting attorney,
  • the premature appeal was attributable to defendant’s trial counsel (and usually court-appointed trial counsel at that),
  • the State was not misled or prejudiced by the premature appeal, and
  • the interest at stake is physical liberty (one of the most cherished rights under the state and federal constitutions),

then this class of premature notices of appeal presumptively satisfies the “extraordinary circumstances” inquiry.

In contrast, Ingram seems to be saying that such a showing is insufficient to justify certiorari review. In other words, the Gardner majority leans into its discretion based on the appellate court’s longstanding criminal-appeal practice; while the Gardner dissent tightens the rope, treating Cryan as a uniform, cross-context constraint on when certiorari may address “jurisdictional” problems created by defective notices of appeal.

3.         Do Oral Notices of Appeal ♫“Have to Be So Complicated“♫?: Render-Versus-Entry under Appellate Rule 4, Oates’ Timing Window, and Appellate Rule 1.

Opinions/orders like Ingram and Gardner sit at the intersection of several unaddressed appellate doctrines which make me wonder: Is the Court of Appeals’ current route for addressing premature notices of appeal more complicated than it needs to be? 

First, what’s the source of this “premature oral notice of appeal” caselaw?  As best as I can tell, State v. Robinson, 236 N.C. App. 446, 448 (2014) is the first published opinion classifying an oral notice of appeal given after verdict, but prior to sentencing, as premature.   Robinson cited only two other authorities when making this statement:

  • N.C. Gen. Stat. § 7A-27.  While section 7A-27 lays out the types of orders that may be appealed and to which court the right to appellate review lies, that statute doesn’t address when or how notice of appeal should be given.
  • N.C. Gen. Stat. § 15A-1444(a).  That statute provides that “A defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered.” But like section 7A-27, section 15A-1444(a) doesn’t dictate when or how notice of appeal must be given—only that a right to appellate review exists once a final judgment is entered in a criminal case.

Rather, the relevant statutory provision is N.C. Gen. Stat. § 15A-1448.  That statute states that that the requirements relating to the time, manner, and effect of giving notice of appeal will be located in the “rules of appellate procedure.”  See also N.C. Gen. Stat.§ 15A-1444(d) (directing that the procedures for noticing an appeal will be governed by Chapter 15A, Chapter 7A, and “the rules of appellate division”).   In other words, because the criminal and appellate statutes no longer establish procedures for how and when notice of appeal should be given, Appellate Rule 4 is the sole source for how and when notice of appeal must be given in a criminal cases.  And Appellate Rule 4(a) provides that criminal defendants may give notice of appeal in one of two ways: (1) by giving oral notice of “at trial” or (2) by filing a written notice of appeal “within fourteen days after entry of the judgment.”

But rather than conducting an analysis of what “at trial” means under Appellate Rule 4(a)(1), Robinson and subsequent opinions simply assumed that oral notice of appeal must be given “following entry of the trial court’s final judgment.” See State v. Robinson, 236 N.C. App. 446, 448, (2014).  Because the appellate panels in that line of cases granted certiorari to address those appeals on the merits, Robinson’s statement that an oral notice of appeal was premature didn’t ultimately harm anyone.

But now that Ingram has denied certiorari review based on a premature oral notice of appeal, the proper interpretation of Appellate Rule 4’s text has become critical.    

Appellate Rule 4 states that a “judgment or order…rendered in a criminal action may” be appealed by “giving oral notice of appeal at trial.” N.C. R. App. P. 4(a)(1) (emphasis added).  Notably, nothing within Appellate Rule 4(a)(1) provides that oral notices of appeal must be given “after entry of the judgment or order.”  Instead, the “after entry of judgment” language is located only within Appellate Rule 4(a)(2)—which only applies to written notices of appeal. 

Second, in State v. Oates, 366 N.C. 264, 266, 732 S.E.2d 571, 573 (2012), the North Carolina Supreme Court explained that in criminal cases, orders and judgments are treated identically. An order is rendered when the trial judge decides an issue and advises the necessary individuals in open court—with the window for noticing appeal opening upon oral rendition of that ruling and remaining open until 14 days after entry of the written judgment or order. Based on that interpretation, the Oates court held that what might be classified under a strict reading of Appellate Rule 4 as a premature written notice of appeal was actually a timely filed notice of appeal under Oates’ more flexible reading of Appellate Rule 4. Does Oates’s render-versus-entry framework align with these premature oral notices of appeal rulings from the Court of Appeals?

Third, might the Supreme Court’s decision in State v. Oates to interpret Appellate Rule 4 flexibly have been guided by Appellate Rule 1?  Appellate Rule 1 lays out a foundational principle when interpreting the appellate rules: 

“Rules Do Not Affect Jurisdiction: These rules shall not be construed to extend or limit the jurisdiction of the courts of the appellate division as that is established by law.”

N.C. R. App. P. 1(c).  Given this text, how are requirements for noticing an appeal found only in an appellate rule being given jurisdictional labels by cases like Robinson, Ingram, and Gardner?

If you are curious, Matt and I have an entire theory under Appellate Rule 27(c) as to why Appellate Rules 3 and 4’s timing (as opposed to form) requirements are constructive jurisdictional requirements, not true jurisdictional requirements. See North Carolina Appellate Practice and Procedure at § 28.02[3][b] [True and Constructive Jurisdictional Requirements]. But that quasi-jurisdictional theory only applies to efforts by a party or a court to “extend” the time for noticing an appeal under Appellate Rule 4. See an earlier, but less developed, version of this theory here: When Is a Deadline or Other Requirement for Filing a Notice of Appeal Jurisdictional? (State Edition) | North Carolina Appellate Practice Blog.

Almost a decade ago, SCOTUS took a step away from the dangers associated with overusing jurisdictional labels. Hamer v. Neighborhood Housing Servs. of Chicago, — U.S. — (2017) (acknowledging Supreme Court’s history of “mischaracteriz[ing] claim-processing rules or elements of a cause of action as jurisdictional limitations” (emphasis added)). Should the text of Appellate Rule 1 invite renewed scrutiny of state court cases that instinctively slap jurisdictional labels on notice of appeal requirements found only in the appellate rules?  In other words, even assuming these notices of appeal are too early under Appellate Rule 4, should such an error be labeled as jurisdictional?  Or should the error be treated as a violation of a non-jurisdictional, claims-processing rule susceptible to doctrines like the functional equivalent and substantial compliance doctrines?  See North Carolina Appellate Practice and Procedure, § 28.02[3][c][ii] [Formal Notice Requirements for Invoking the Appellate Court’s Jurisdiction]. Taking premature notices of appeal out of the jurisdictional category would be a sensible way to stop throwing every notice of appeal problem into a jurisdictional abyss that only “extraordinary circumstances” can bridge.

Fourth, civil appellate practice saves most premature written notices of appeal under the rendering-versus-entry distinction.  For example, in Abels v. Renfro Corp., 126 N.C. App. 800, 804, 486 S.E.2d 735, 738 (1997) a notice lodged after the court rendered its decision but before entry was not fatal. Although criminal cases lack a directly analogous “entry” statute, does the render/entry text of Appellate Rule 4—particularly when combined with the Oates framework—support greater tolerance for criminal oral notices of appeal when the appellant’s intent to appeal is plain and no party was misled?

[ETA 11/6/2025: Thanks to Troy Shelton for reminding me about the Mannise/Penninga line of cases that take a different approach from Abel to premature oral notices of appeals. See Treatise § 28.09[2][c][vii] [Premature Notices of Appeal]. While Mannise and Penninga don’t reference Abels v. Renfro, their reasoning is based on a 1994 amendment to Civil Rule 58. But as noted above and below, these changes were confined to civil judgments–with the General Assembly and Supreme Court appearing to leave the 1970s to 1990s process for noticing appeals in criminal cases untouched].

Finally, when the Supreme Court in 1989 eliminated oral notice of appeal in civil cases, it adopted a corresponding change to Appellate Rule 4 that eliminated oral notices of appeal in criminal cases too.   But before the ink could dry on amended Appellate Rule 4, the Supreme Court rescinded the changes and decided to keep oral notices of appeal, at least for criminal cases.  Compare N.C. R. App. P. 4 (1989), reprinted at, 324 N.C. 585., 585 with 368 N.C. 1068, 1070 and 92 N.C. App. 761.  I have been told that the criminal bar convinced the Supreme Court that eliminating oral notices of appeal was going to create chaos because giving oral notice of appeal at trial was so simple and flexible.

But if the criminal bar is now experiencing widespread difficulty complying with Appellate Rule 4, should the Supreme Court look at this issue again? Perhaps oral notices of appeal should be eliminated in favor of a simpler (maybe a form-based) written notice of appeal procedure? Or perhaps the Supreme Court could amend Appellate Rule 4 to provide that if the trial court signs an appellate entry stating that oral notice of appeal was given in open court, such a signed order will satisfy Appellate Rule 4.

Further update 1/8/2026. Someone alerted me that under Appellate Rule 4, there’s no notice of appeal tolling if the written judgment is not served or otherwise received by the appealing party.   Rather, a party in a criminal case has 14 days after entry of an order–regardless of receipt or notice of the order.  That’s a problem, particularly under Odyssey, because parties don’t receive notice when a written judgment is filed into Odyssey by the trial court. That means that trial counsel in criminal cases have to manually check the electronic case docket to determine if the written judgment has been entered by the trial court. There is also no mailbox rule for notices of appeal, even for people in prison. That means that even if the trial court clerk decides to manually mail the judgment to someone in prison, the criminal defendant would have to receive the order and get the notice of appeal filed within 14 days. That sheds new light on why criminal defense attorneys prefer oral notices of appeal. EBS

I would love to hear everyone’s thoughts on if any of these fixes might work. Of course, if the Supreme Court decides that the Court of Appeals’ premature oral notices of appeal cases have been wrongly decided, then perhaps Appellate Rule 4 needs no tinkering.

For criminal appellate attorneys, perhaps ♫“life’s like this”: irrespective of whether rules actually “affect jurisdiction” in the abstract, in practice they still can deeply impact criminal defendants seeking to exercise their statutory right to appellate review of their convictions.  While oral notices might seem to be fine when given “at trial,” the appellate courts have disagreed.  Because there’s no way to know whether a case’s assigned appellate panel will weave certiorari’s safety net wide or knot it up tightly, appellate practitioners must continue to comply with the most restrictive interpretation, while still preserving the deeper questions presented under Appellate Rule 4, Appellate Rule 1, and Oates.

This ♫Complicated blog post has several questions that I’d love feedback on. Share your thoughts in in the comments to this LinkedIn post. 

–Beth Scherer

            I’ve spent a fair amount of time over the last few months working on the examination recently administered to those seeking to become North Carolina State Bar Board Certified Specialists in Appellate Practice.  During my research, I realized that the appellate courts of North Carolina appear not to have a definition of the frequently used term “fully reviewable on appeal.”

            To my ear, an issue that is fully reviewable by an appellate court is one subject to de novo review.  However, that does not appear to be the case in practice.  The Court of Appeals has issued opinions stating that discretionary rulings by a trial court are “fully reviewable on appeal,” (Riddick v. Atlantic Veneer, 94 N.C. App. 201, 203, 379 S.E.2d 661, 662 (1989)); that mixed questions of law and fact are “fully reviewable on appeal,” (Town of Apex v. Rubin, 277 N.C. App. 328, 338, 858 S.E.2d 387, 395 (2021)); and that a trial court’s conclusions of law are “fully reviewable on appeal.” (State v. Williams, 248 N.C. App. 112, 119, 786 S.E.2d 419, 425 (2016)).  Those cases seem to cover the waterfront.

            So what is the meaning of the phrase?  Does it tell us anything about the standards of review that appellate courts actually apply?  The Supreme Court of the United States addressed standards of review fairly recently in Highmark, Inc. v. Allcare Health Management Systems, Inc., 527 U.S. 559, 134 S. Ct. 1744, 188 L. Ed. 2d 829 (2014), where it stated that traditionally, decisions on questions of law are reviewed de novo, questions of fact are reviewable for clear error, and discretionary decisions are reviewed for abuse of discretion.  I am confident that the practices of North Carolina’s appellate courts are consistent with Highmark.  So it would seem to follow that including the words “fully reviewable on appeal” in an opinion really either adds nothing or obscures the standard actually being applied.

            Lest you think I am being snarky, I confess that I used the term in opinions I authored while on the Court of Appeals and on the Supreme Court.   I won’t cite them but, if you’re curious, you should not have any trouble finding them.  No doubt Beth and Matt will devote a chapter to this conundrum in the next edition of their treatise. 

–Bob Edmunds

For both civil and criminal appeals, the North Carolina Rules of Appellate Procedure require an appealing party who is filing a written notice of appeal to identify “the judgment or order from which appeal is taken.”  N.C. R. App. P. 3(d), 4(b).  But does appeal from a final judgment include all the earlier, interlocutory orders that merge into the judgment?  Or, must you explicitly identify both the judgment and any orders you intend to challenge on appeal?  Relatedly, how much specificity must the notice of appeal include to satisfy the requirements of Appellate Rules 3 and 4?  Can a notice of appeal be too specific?  A recent decision from the Court of Appeals addresses these issues.

In State v. Hawkins, the defendant in a statutory rape case sought to challenge the trial court’s oral decision at trial about proffered expert witness testimony.  After a jury found the defendant guilty, the defendant filed a timely notice of appeal.  The record on appeal is sealed because of the nature of the case, but the Court of Appeals said that the defendant’s notice of appeal “only discussed the [trial] court’s ruling on the motion in limine regarding the use of the word ‘rape,’ along with five other issues.”  Apparently, the notice of appeal did not specifically mention the trial court’s ruling regarding the expert witness.  As a result, the Court of Appeals held that the defendant’s notice of appeal contained “jurisdictional defects because of his failure to comply with Rule 4.”  The Court went on to address the defendant’s petition for writ of certiorari on the expert witness issue and denied the petition for failure to demonstrate likely error.

The Court’s analysis of the designation requirement raises some interesting questions.  Consider this:  because Hawkins was a criminal case, what if the defendant had given oral notice of appeal at trial (which is allowed under Rule 4) rather than filing a written notice of appeal?  If a defendant is permitted to give a “generic” oral notice of appeal in open court, why is there a different standard for a written notice of appeal?

In either a civil or criminal case, is the appellant better off leaving the language in a notice of appeal generic?  For example, is it sufficient for the appellant to notice an appeal from “the trial court’s final judgment and all intermediate orders necessarily affecting the judgment”?  When oral rulings are made at trial, what exactly does an appellant need to include in the notice of appeal to ensure that those rulings are preserved?

The safe bet, of course, is to include anything and everything in the notice of appeal.  That can be tricky when new counsel is engaged at the outset of an appeal, and it may be difficult to obtain an entire transcript within 30 days of the conclusion of the trial (or 14 days for criminal defendants).  Nevertheless, the Hawkins decision suggests that specificity is required in a written notice of appeal.  Perhaps that is one reason why oral notices of appeal are so common in criminal cases. 

Taking a step back, do the Appellate Rules require a party to appeal from and designate both a final judgment and interlocutory orders?  For example, the Rules provide that a criminal defendant must file written notice of appeal “within fourteen days after entry of the judgment or order,” while also designating “the judgment or order from which appeal is taken.”  N.C. R. App. P. 4(a)(2), (b).  Does this use of the same phrase to describe what has to be appealed and when it has to be appealed suggest that North Carolina follows the merger rule (the doctrine that an appeal from a final judgment brings up all intermediate orders of the trial court that make up that final judgment “package”)?

I would be remiss if I neglected to mention another jurisdictional issue lurking in this case:  service of the notice of appeal.  In Hawkins, the defendant filed a timely notice of appeal but did not include a certificate of service in the record on appeal.  The State filed its brief without mentioning this defect—and in fact did not raise it at all until the defendant had realized the mistake and filed a petition for writ of certiorari.  Given those circumstances, the Court held that the State had waived its opportunity to raise the defect.  Although service of the notice of appeal is a “jurisdictional” requirement, it is also a waivable requirement.  But that’s a “jurisdictional” story for another day. 

–Kip Nelson

The Appellate Rules Committee has updated its style–the Appellate Style Manual that is. The Style Manual provides practical examples and tips for those practicing in North Carolina’s state appellate courts.  Although not a substitute for the Rules themselves, the Style Manual is a handy guide for those dealing with pesky table of authorities or seeking guidance on the latest appellate transcript rules.  Caitlin Mitchell, who recently took over as editor-in-chief of the Style Manual, has a summary of the latest updates here.

The Rules Committee has been busy.  In March 2021, the Committee issued a facelift to its ever-popular Guide to Appealability of Interlocutory Orders. Big thanks to the efforts of that publication’s editor-in-chief, Scottie Lee.

The updated Style Manual  and Guide to Appealability can be found on the Appellate Rules Committee’s webpage,  Updated links to this and other appellate-related publications are also located on this blog under the “Rules and Practices Guides” page located under the “Other Resources” tab on the front page.

–Beth Scherer

As previously reported here, the Supreme Court of North Carolina at the end of March issued an order extending all appellate court deadlines falling between March 27 and April 30, 2020 for 60 days.

As a service to the bar, the Clerks of the Supreme Court and Court of Appeals have posted answers to some of the most frequently asked questions they have received about the order.  You can find those FAQs here.

While we highly encourage everyone to read the full list of questions and answers, the most frequently asked question we received from our blog readers was this:

When a briefing or record deadline was previously extended by a court order and now falls within the March 27 to April 30 window, does that document still benefit from the automatic 60-day extension?

Clerks’ answer:  Yes.

The second most frequently asked question we received was this:

Are notice of appeal deadlines established by Appellate Rule 3 and 4 extended?

Clerks’ Answer: Yes.

As  previously warned, appellate deadlines established by a statute, rather than the appellate rules, are not extended by the Supreme Court’s March 27 order.  See Elizabeth Brooks Scherer & Matthew Nis Leerberg, North Carolina Appellate Practice and Procedure § 5.04[2][a] (Establishment of 30-Day Appeal Period by Appellate Rules and Statutory Exceptions).  Still, some statutory, deadlines relating to an appeal likely are extended by the Chief Justice’s emergency orders covering  filings and acts to be done in the trial courts (e.g., Rule 3.1 notice of appeal deadlines).

Which brings me to the third most frequently asked question from our blog readers:

Are you sure about the 60-day extension for Appellate Rule 3 and 4 deadlines?  I thought notice of appeal deadlines were jurisdictional deadlines that could not be extended by the courts. . . .

The clerks’ FAQs guidance does not answer this question specifically.  But further insight on this issue can be found in my way-back blog post from May 2018, When Is a Deadline or Other Requirement for Filing a Notice of Appeal Jurisdictional? (State Edition).

If you are interested in an even deeper dive, see section 28.02[3] of the treatise where Matt and I explore the distinctions between (1) true jurisdictional requirements, (2) constructive jurisdictional requirements, (3) formal notice requirements for invoking appellate jurisdiction, and (4) proof-of-jurisdiction requirements.

Finally, much thanks to both Amy and Dan for providing these helpful clarifications! And continued thanks to both appellate courts for thinking of creative ways to ease this pandemic’s burden on the bar.

-Beth Scherer

P.S.   Please do not visit the Clerk’s Office unless you have first called for assistance. Both Clerk’s offices are practicing social distancing.  The Clerks can handle most issues remotely.  No need to needlessly endanger courthouse members or their staff with a visit they could have been addressed by calling first.