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Ehrenhaus Is Here To Stay

Yesterday the North Carolina Court of Appeals issued what I am going to be so bold as to call the most highly anticipated opinion in 2015 for appellate practitioners. For those new to the Ehrenhaus discussion, take a look at our prior posts here and here and here. The central question is whether the provision in Appellate Rule 3 requiring that a notice of appeal be filed “with the clerk of superior court” can, in a North Carolina Business Court case, be satisfied by e-filing the notice of appeal through the Business Court website, or can only be satisfied by timely filing of the notice of appeal with the clerk of superior court in the case’s “home county.”

In yesterday’s opinion in Ehrenhaus v. Baker (14-1083), the Court of Appeals dismissed Plaintiff’s appeal (of the North Carolina Business Court order dismissing his attempted cross appeal as untimely) and denied Plaintiff’s petition for writ of certiorari. In reaching its decision, the Court concluded that “Plaintiff did not properly give notice of appeal” and the circumstances did not justify granting such an “extraordinary remedy” as certiorari to review the underlying order on the merits.

Where does that leave us? With binding authority interpreting notice of appeal filing requirements for North Carolina Business Court appeals.

When appealing from a Business Court order or judgment, e-filing your notice of appeal will not satisfy the filing requirements of Appellate Rule 3. You must also file a paper copy of your notice of appeal with the court in which the case originated, and you must do so by your notice of appeal deadline.

– Corinne Jones

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