Appellate Rules Violations

Last Amish Horse and Carriageweek, the Court of Appeals returned to a general question that this blog has addressed before: When is a Notice of Appeal Filing Deadline or Requirement Jurisdictional?  In this instance, the specific issue was whether the Court has jurisdiction over an appeal when a notice of appeal was filed and the record on appeal was filed and the appeal docketed before the trial court entered the order that was being appealed.… Continue Reading

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Approximately three years ago, I blogged on Majerske v. Majerske, an unpublished Court of Appeals decision that dismissed an appeal for a notice of appeal defect.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.… Continue Reading

Back in March, the Court of Appeals in Ramsey v. Ramsey dismissed a party’s appeal for cumulative non-jurisdictional violations that the Court described as “gross and substantial noncompliance with the North Carolina Rules of Appellate Procedure.” (See prior posts on Ramsey here and here.)  On Tuesday, in K2HN Construction, NC, LLC v. Five D Contractors, Inc., the Court dismissed another appeal that had a tortured relationship with the State’s appellate rules. … Continue Reading

As noted yesterday, the Supreme Court has been busy. Need further proof? How about the fact that the Supreme Court considered 279 “other matters” on Friday— a category that includes rulings on various substantive motions, PDRs, and writ petitions. By way of comparison, the number of “other matters” considered by the Supreme Court fell within the 134 to 182 range the last few times that opinions were released.… Continue Reading

Last month, Beth blogged about an opinion from the Court of Appeals dismissing an appeal for eight appellate rules violations. This month, the Court withdrew its opinion, issued a new opinion finding seven-ish appellate rules violations, and dismissed the appeal again.

The returning case is Ramsey v. Ramsey, a family law case involving a contempt order. Beth had noted that certain of the eight errors identified by Judge Zachary—including compliance with the deadline to file the record on appeal—may not have been rules violations.… Continue Reading

**Update: As Troy’s follow-up blog post notes, the Court of Appeals subsequently withdrew and replaced its February opinion with a new opinion issued on March 19, 2019.    The only copy of the February opinion in my possession is not in the public domain. Therefore, you’ll just have to trust me regarding what the original opinion said.

Post-Dogwood, cases in which appeals are dismissed for non-jurisdictional rules violations are rare. … Continue Reading

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.”… Continue Reading

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. … Continue Reading

Our readers know that the date of filing of a Notice of Appeal in the “home county” establishes compliance with Appellate Rule 3.  But is the file-stamp on that notice of appeal unassailable?  On Wednesday, the North Carolina Business Court answered that question in the negative.

In Azure Dolphin LLC v. Barton, the deadline for filing the notice of appeal was 1 November 2017.… Continue Reading

Our appellate blogosphere has been filled with an unusual number of posts involving dismissed appeals. However, the North Carolina Court of Appeals on Tuesday bestowed leniency on two appeals, utilizing Appellate Rules 2 and 21 to reach the merits of both appeals.  Curious as to what justified this cheerful news?  Keep reading.

Sarno v. Sarno involved a family law appeal facing a potential fatal obstacle based on  bizarre procedural facts: 1) a judgment that contained two different April 2016 file stamp dates, 2) no certificate of service for the judgment, 3) a record indicating that the judgment was not in the file on 12 May 2016, 4) a plaintiff who asserted that she had not received the judgment until 20 May 2016, and 5) notices of appeal not filed until well into June 2016.… Continue Reading