Tolling of Notice of Appeal

In an earlier post, Beth detailed best practices for when a Rule 59 motion will successfully toll the 30-day appeal period under Appellate Rule 3.  See here.  To recap, tolling requires a “proper” Rule 59 motion—which means meeting a litany of requirements, including that the motion: (i) seeks relief from a final judgment; (ii) generally applies only to post-trial judgments; (iii) seeks relief pursuant to one or more grounds listed in Rule 59(a); (iv) seeks a valid form of relief from the contested final judgment; and (v) does not reargue matters already decided by the trial court. … Continue Reading

In Davis v. Rizzo (issued Tuesday), the Court of Appeals further limited what kinds of post-judgment motions might constitute “proper” Rule 59 motions sufficient to toll the appeal period.   Not only must such a motion raise adequate grounds under Civil Rule 59, but the party must also seek valid Rule 59 relief.   When the motion fails to do so, the party’s deadline for filing a notice of appeal under Appellate Rule 3 will not be tolled.… Continue Reading

The North Carolina Court of Appeals has started off 2018 with a trend of clarification.  As we noted last week, in this year’s first batch of opinions the Court clarified the applicable standard of review for a trial court’s decision on whether a party has waived a contractual right to arbitration. And now after the year’s second batch of opinions was released earlier this week, appellate practitioners have further clarity: if the record on appeal does not contain a certificate of service for the order or judgment being appealed and the appellee seeks to dismiss that appeal on the grounds that it was untimely, the burden of showing when actual notice was received is on the appellee. … 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

There are myriad reasons why, when given the choice, North Carolina litigators might want a case venued in federal court as opposed to state court (and depending on the circumstance, of course, the opposite is also true).  A list of these reasons might not typically include “more options if we lose,” but the reality is that in many instances the federal rules–of both civil and appellate procedure–provide more options to a losing party than the North Carolina rules. … Continue Reading

Most attorneys have had a least one unfavorable final judgment entered before trial.  The attorney may feel that the trial court completely misunderstood her argument. Perhaps the trial court entered a summary judgment order that missed a key appellate case.  Or perhaps the trial court issued a Rule 12(b)(6) dismissal that appeared inconsistent with an earlier ruling.  The natural inclination is to devise a motion that will give the trial court the opportunity to fix its mistakes without having to take an appeal. … Continue Reading