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Court of Appeals Continues to Clarify, This Time With Respect to Burden of Proving Timely Appeal

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.  So held the Court in Brown v. Swarn, thus carving in stone a rule that had heretofore only been implied by prior decisions.  This “new” rule, while providing clarity, is one that appears to run counter to the general rule regarding the burden to prove appellate jurisdiction. See, e.g., C. Terry Hunt Indus., Inc. v. Klausner Lumber Two, LLC, 803 S.E.2d 679, 682 (N.C. Ct. App. 2017) (holding that burden is on the appellant to show the court’s jurisdiction over an interlocutory appeal);  Johnson v. Lucas, 168 N.C. App. 515 (2005) (“It is well established that the appellant bears the burden of showing to this Court that the appeal is proper.”)

Swarn involved a custody dispute in which the trial court entered an order in August 2016.  Seven months later, in March 2017, the defendant father filed a written notice of appeal from that order.  The mother argued that the appeal should be dismissed because it was not timely.  However, the record was devoid of any indication that the father had been served with the order or when he received actual notice of the order.  In analyzing the mother’s argument for dismissal, the Court noted apparent tension between 1) cases holding that when the record fails to show when the appellant was served with the judgment the time to appeal is tolled indefinitely (Rice v. Coholan, 205 N.C. App. 103 (2010) and Davis v. Kelly, 147 N.C. App. 102 (2001)), and 2) cases holding that even when date of service is not apparent in the record an appellant must still notice an appeal within thirty days of actual notice of the entry and content of the judgment being appealed (Manone v. Coffee, 217 N.C. App. 619 (2011); E. Brooks Wilkins Family Med., P.A., v. WakeMed, ___ N.C. App. ___, (2016); Magazian v. Creagh, 234 N.C. App. 511 (2014); and Huebner v. Triangle Research Collaborative, 193 N.C. App. 420 (2008)).  The tension between these cases stemmed from the fact that in both Rice and Davis, the records on appeal showed that the appellant had received actual notice of the judgment’s entry more than thirty days before noticing the appeal.  Thus, those appeals presumably were untimely under the rule set forth in Manone and other cases.  The Swarn Court brushed this apparent inconsistency aside as “more apparent than real,” noting that the panels in Rice and Davis did not actually address the “actual notice” issue. In the Court’s view, therefore, the cases actually addressing that issue establish the rule, which is that “where evidence in the record shows that the appellant received actual notice of the judgment more than thirty days before noticing the appeal, the appeal is not timely.”

The only thing left for the Swarn Court to decide on this particular issue, then, was the application of that rule to the facts of the case at hand.  As the record did not show either service or actual notice of the order being appealed, the Court held that it would consider the appeal to have been timely noticed.  Thus, the rule has now been clearly stated by the Court that when there is no certificate of service in the record showing when the appellant was served, there is no burden on the appellant to show that he received actual notice of the order within thirty days of filing the notice of appeal. Rather, the Court will presume that it is timely filed unless the appellee can show from evidence in the record that the appellant had actual notice more than thirty days prior to filing the notice of appeal.

This rule appears to be a departure from other North Carolina appellate jurisprudence which in almost all other circumstances puts the burden squarely on the appellant to show that the court has jurisdiction over the appeal. And there is no discussion in Swarn as to why such a departure from the general rule might be warranted.  Which thus begs the question, is it warranted in this circumstance?  Should an appellant be excused from affirmatively demonstrating that the notice of appeal was timely filed?  If so, why?  If not, why not?  And further, are there potential unintended consequences to this rule?  Is there potential for abuse?  Weigh in below.

–Patrick Kane

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One Response to "Court of Appeals Continues to Clarify, This Time With Respect to Burden of Proving Timely Appeal"

  • Beth Scherer
    February 3, 2018 - 2:57 pm Reply

    Sorry to be late to this game but this opinion seems to be a reasonable limitation on two opinions that have long concerned me. Manone v. Coffee & Magazian v. Creagh–previously blogged on here and here.

    Appellate Rule 3 places the duty to properly serve a judgment in accordance with Civil Rule 58 on the appellee. Manone and Magazian added an actual notice component to Civil Rule 58 and Appellate Rule 3 that is not found in either rule.

    Over 20 years ago, Civil Rule 58 was amended to make the time for entry of the judgment clear. One of the three required components of this new rule was “[s]ervice and proof of service” in accordance with Civil Rule 5–a duty that falls on appellee. Manone and Magazian rolled back the General Assembly’s decision to create clarity as to the date of entry of the judgment, and consequently, when a notice of appeal deadline begins to run.

    In the absence of the proof of service required by Civil Rule 58, the appellee, not the appellant, has the best evidence as to whether, how, when the judgment was actually delivered to the appellee. An appellant should not have to prove a negative event. Remember that Magazian allows knowledge of the judgment by someone other than the attorney of record to count as “actual notice.” Therefore, it would be difficult for an appellant to prove it did not have actual notice of the judgment. What would the affidavit say? “Neither I nor anyone in my 250 member firm was aware that the judgment had been entered”?

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