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Court of Appeals Doubles Down on Deadlines: Notice of Appeal Really Can Be Filed Too Early

A few months ago, I wrote about a case in which the Court of Appeals held that a notice of appeal was filed too early because the time period for filing a notice of appeal does not begin until judgment is entered. See Mannise v. Harrell. In that post, I indicated that it was “unclear how far the Mannise holding extends.”

Last week, the Court of Appeals provided some clarification on the issue, albeit in an unpublished opinion. In Penninga v. Travis, the court reaffirmed and explained the Mannise rationale. The Penninga defendant sought to appeal from an order finding him in contempt for violating child custody and child support orders. However, the defendant filed his notice of appeal early—two weeks after the oral rendering of the decision but two weeks before entry of the written order.

In finding that the appeal was untimely, the Court of Appeals relied on the language of Appellate Rule 3(c), which requires a notice of appeal to be filed “within thirty days after entry of judgment.” One could read the rule as only providing the outer limit for the notice of appeal. In other words, one reading of the rule is that a party can appeal from an order at any time up to the end of the 30-day appeal period. But according to the Court of Appeals in Mannise and Penninga, the window of appellate opportunity is not even open until judgment is entered—and a premature notice of appeal is as untimely as a late notice of appeal.

Practitioners should note that these rulings represent a departure from the federal rules, which explicitly state that a notice of appeal filed after the court announces a decision but before entry of judgment is deemed filed on the date of entry. See Fed. R. App. P. 4(a)(2).

The Penninga court also distinguished earlier cases, which seem to hold to the contrary, because they stem from decisions that relied on an older version of Rule 58. Prior to amendments in 1994, even oral judgments were considered entered. But now that the time for entry of judgment is (more or less) clear, the appellate deadline starts and ends with that date.

Fortunately for the defendant in Penninga, the court granted his alternative petition for writ of certiorari and vacated the contempt order.

Fortunately for the bar, this opinion serves to clarify that a premature notice of appeal is not effective. The opinion noted that the defendant had not filed a new or amended notice of appeal, suggesting that these would be possible ways to remedy the error. And the opinion supports the notion that a party who has filed a premature notice of appeal can still ask for the court to review the case via certiorari. But as with other shifts in appellate jurisprudence, practitioners should not expect the appellate courts to grant certiorari indefinitely. At some point, the courts will expect that the bar is on fair notice of this understanding of the rules.

–Kip Nelson

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One Response to "Court of Appeals Doubles Down on Deadlines: Notice of Appeal Really Can Be Filed Too Early"

  • Beth Scherer
    February 28, 2017 - 3:25 pm

    I don’t understand how this opinion could not be in conflict with Abels v. Renfro Corp., 126 N.C. App. 800, 804, 486 S.E.2d 735, 738 (1997)–a case which explicitly analyzed this issue under the 1994 amendment to Rule 58 and came to the opposite conclusion.

    Good news is that the PWC was granted. No harm, no foul. Bad news is that the appellant is unlikely to seek further review of this issue.