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North Carolina Court of Appeals Rules that Thirty-Day Clock Starts Ticking Earlier If You Receive Actual Notice of a Judgment

Rule 3(c) of the North Carolina Rules of Appellate Procedure mandates that a party must file a notice of appeal either 1) within thirty days after entry of judgment if the party has been served with a copy of the judgment within the three day period prescribed by Rule 58 of the Rules of Civil Procedure, or 2) within thirty days after service upon the party of a copy of the judgment.

Under Rule 58, “the party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered.”

What happens if opposing counsel does not serve the judgment on you within three days as provided by Appellate Rule 3(c) and Civil Procedure Rule 58, but you (or one of your office staff members) pick up a copy of the judgment while at the courthouse? When does your thirty-day clock start ticking? According to the North Carolina Court of Appeals, it starts on the date of entry of judgment if you “actually” receive notice of the judgment within three days.

In Manone v. Coffee, the defendant sought to appeal a custody order that was filed on August 16, 2010. On August 19, three days after the order was filed, someone from defense counsel’s office retrieved a copy of the order from the courthouse. Defense counsel, however, did not receive a copy of the order until the next day, August 20. On the same day that she received the order, defense counsel mailed a copy to the plaintiff and filed a certificate of service listing August 20 as the service date. Defense counsel then filed a notice of appeal on September 20–thirty days after the order was served under Appellate Rule 3 and Civil Procedure Rule 58. Even though the notice appeared to comply with Appellate Rule 3, the Court of Appeals nevertheless held that the notice of appeal was untimely.

In doing so, the Court of Appeals concluded that Appellate Rule 3’s three-day service requirement does not apply when the appealing party receives “actual” notice of the order within the three-day period. The Court of Appeals distinguished previous cases in which a non-appealing party’s failure to comply with the certificate of service requirement tolled the appealing party’s time for taking an appeal. Instead, the Court of Appeals relied on a case in which the appellant waited three years to file a notice of appeal. According to the Manone court, “when a party receives actual notice of the entry and content of a judgment . . . the service requirements of Rule 3(c) . . . are not applicable.” Although this ruling seems to be a departure from the language of Rule 3(c), the court clarified that “the remainder of Rule 3(c) shall continue to apply.”

Furthermore, “actual” notice is to be construed broadly. In Manone, a law firm’s staff member picked a copy of the order up from the courthouse on August 19. Defense counsel, however, did not receive a copy of the order until August 20. While it was unclear from the record who the staff member was or where at the trial court he/she obtained the order, the attorney was deemed to have actual notice when the order was retrieved: “Notice is effective when the attorney’s office, not the individual attorney, receives an order or judgment.”

Thus, the defendant was required to file a notice of appeal within thirty days of August 16th—the date the order was filed. Because the notice was not filed until September 20, it was untimely and the appeal was dismissed.

The driving force behind this opinion is understandable: the Court of Appeals does not want appellants to be able to manipulate the thirty-day clock if the non-appealing party fails to serve the order. But the opinion may also create some surprising quagmires for appellate practitioners. For example, imagine you are an Asheville attorney in a multi-office firm. The Wake County trial court administrator places a final judgment signed on Wednesday in your firm’s outbox on Thursday. It is picked up late Thursday afternoon by your firm’s Raleigh office staff. No attorney names are listed on the trial court’s judgment, so it takes some effort by the office staff to figure out that the case belongs to you. The judgment is placed in your firm’s interoffice mail on Friday afternoon. The following Monday, you finally receive a copy of the judgment. There is no indication when the judgment was “received” by the Raleigh staff. Indeed, there may be no indication regarding how the judgment arrived on your desk. Under Manone, it may be difficult for you to decipher exactly when the deadline is to file a notice of appeal.

Moreover, imagine that the trial court’s assistant informs you by telephone that it has entered an order granting your opponent’s summary judgment motion. But you do not receive a service copy from opposing counsel until four days later. Is the call from the trial court enough to constitute “actual” notice?

Take away point: It is safer not to rely on Appellate Rule 3’s extra time when service is not completed within three days. Instead, file your notice of appeal within thirty days of the filed-stamp date on the judgment.

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