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Service in the Digital Age: Use of Email During Appeal

I still remember the first email I sent, way back in 1995 (to my now-wife).  Here we are, 17 years later, and email is no longer a novelty.  It is the primary way most lawyers do business, structure their workdays, communicate with clients, and even communicate with a co-worker 10 feet away.

But the law and the rules are slow to adapt.  The North Carolina Rules of Appellate Procedure do not generally allow e-mail service of filings.  True–there are exceptions, such as the Rules’ embrace of e-mail service of electronic filings.  N.C. R. App. P. 26(c).  But e-mail service remains the exception, not the rule.

In MNC Holdings, LLC v. The Town of Matthews, the Court of Appeals reaffirmed that e-mail is not an acceptable method of service of the Notice of Appeal.  (Full disclosure: my firm represented MNC Holdings in this appeal.)  In MNC, the Town timely filed a Notice of Appeal from a decision of a trial court on MNC’s petition for writ of certiorari regarding a variance petition.  The same day, the Town served the Notice of Appeal by e-mail.  The Town had served certain trial-level documents by e-mail, and claimed it was just following the parties’ earlier course of conduct.  Indeed, MNC did not dispute that it had actual notice of the appeal.

On MNC’s motion to dismiss the appeal for improper service of the Notice of Appeal, the Court of Appeals held that the Town had not properly served the Notice of Appeal by email.  Rule 3(e) requires service of the Notice of Appeal in a method “as provided in Rule 26.”  Rule 26, in turn, provides for service in accordance with Rule 4 of the Rules of Civil Procedure (i.e., how you serve a Complaint), or by hand delivery or U.S. mail.

In the end, the Town’s appeal was saved by a different truism about law practice in 2012–that most appellate rules violations are now non-jurisdictional.  The Court reiterated that proper filing of the Notice of Appeal is necessary to confer subject matter jurisdiction on the appellate courts, but proper service of the Notice of Appeal is not.  Instead, service of the Notice of Appeal is necessary for the court to exercisepersonal jurisdiction over a party.  In this case, both parties adequately participated in the appeal, and the Court let the Town’s error slide.

Don’t get too comfortable though — the Court warned:

[P]ractitioners need be cautioned that non-compliance with the Rules in future cases may result in dismissal and that an appellate discussion of their failure to follow the rules should be unnecessary . . . .

I’ll be standing by my e-mail if you’d like to discuss.

–Matt Leerberg

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2 Responses to "Service in the Digital Age: Use of Email During Appeal"

  • Leslie Rawls
    November 20, 2012 - 4:10 pm Reply

    I often ask opposing counsel if it will accept service by email, Dropbox, or CD, particularly in cases with voluminous records. My certificate of service then reflects the manner of service and recites that it is by agreement with counsel. Even after MNC, I believe the service is adequate despite not being specifically authorized by the rules.
    Leslie Rawls
    Attorney at Law
    NC State Bar Board Certified Specialist
    in Appellate Practice Law
    PO Box 38325
    Charlotte, NC 28278

    • Matt Leerberg
      November 20, 2012 - 4:20 pm Reply

      I think you are right. The MNC court held that the manner of proper service of the Notice of Appeal is “a matter of personal jurisdiction which may be waived by a party.” Slip op. at 6. Even though the Rules do not appear to countenance an alternative method of service “as agreed upon by the parties” or the like, I would think a written agreement with opposing counsel would be a waiver as suggested by MNC. Anyone else use “modern” methods of service like Leslie?

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