Go to Top

Who let the Dog(wood) out??

I suspect that every reader of this blog nurses a fear of making a jurisdictional error that kills the client’s appeal.  For North Carolina practitioners, three recent Court of Appeals cases give guidance to help alleviate that existential dread.  All these cases were in the batch filed on 19 March 2019.

Let’s begin with Wright v Alltech Wiring & Controls, No. COA18-833, the only published opinion of the three.  We need not concern ourselves with the facts.  The appeal arose from a finding by the Industrial Commission that the decedent did not die in the course and scope of his employment.  Plaintiff filed notice of appeal to the Court of Appeals on 26 June 2018.  Several months later, on 28 November 2018, defendants filed a motion to dismiss the appeal, citing Bradley v. Cumberland Cty., ___ N.C. App. ___, 822 S.E.2d 416 (2018) to support defendant’s contention that the record on appeal failed to establish that plaintiff’s notice had been timely filed.

No doubt aghast, plaintiff that same day filed a Motion to Add Portion to Record on Appeal to include both a file-stamped copy of the notice of appeal and a letter from the Industrial Commission acknowledging its receipt.  Plaintiff also filed a belt-and-suspenders Conditional Petition for Writ of Certiorari.  On 15 January 2019, the COA denied defendant’s motion to dismiss the appeal and allowed plaintiff’s motion to add to the record on appeal.

In its subsequent opinion on the merits, the COA addressed its jurisdiction over this appeal.  It noted that its holding in Bradley was “not exceptional” because it was an application of the well-known rule that failure timely to file notice of appeal is jurisdictional.  Though the NOA in Bradley was riddled with defects, the fatal error was the absence of any evidence that the appeal had been timely taken.  In contrast, plaintiff in Wright had moved to amend the record on appeal to cure the purported jurisdictional defect and also had requested certiorari review, all before the the appeal was heard.  Accordingly, in light of the cure, the COA determined that it could entertain the appeal and dismissed as moot plaintiff’s petition for writ of certiorari.  While plaintiff may have heaved a huge sigh of relief, the COA nevertheless ruled against her on the merits.

Full disclosure: This firm provided advice to appellant’s counsel on ways to cure the defect in the record on appeal.

The second pertinent case filed that day is Tyson v. Bess, COA18-879.  As before, the facts of this unpublished child support case are immaterial.  On 8 May 2018, the trial court entered an order denying appellant’s Rule 60(b) motion, which sought relief from the trial court’s judgment.  Appellant filed his notice of appeal on 8 June 2018.  The COA concluded that the notice was filed one day late and dismissed the appeal.

The panel acknowledged that the dismissal was a “harsh result” but reiterated that jurisdictional deadlines are inflexible.  The panel nevertheless telegraphed a reminder to practitioners that the COA has “broad authority” to issue a writ of certiorari to review an appeal “where the court would otherwise lack jurisdiction.”  Even so, “the appellant must take advantage of this discretionary authority by petitioning for a writ of certiorari.  [Appellant] did not do so here, and we are therefore constrained to dismiss the appeal.”

Finally, in Mathis v. Jones, COA18-262, appellant appealed the trial court’s 13 September 2017 order allowing appellee’s motion to dismiss appellant’s tort suit.  Appellant apparently proceeded pro se and failed to include in the record on appeal just about everything imaginable, specifically including the notice of appeal.  In its unpublished opinion, the COA found last omission to be fatal because, pursuant to Maldjian v. Bloomquist, 245 N.C. App. 222, 782 S.E.2d 80 (2016), the notice of appeal must be contained in the record or the COA will not have proof of jurisdiction.  The COA allowed appellee’s motion to dismiss the appeal.  Appellant’s sole comfort was that the COA declined to impose the sanctions requested by appellee.

What are the lessons from these cases?  First, if there’s a question whether your record on appeal includes adequate proof that your NOA was timely, get it fixed ASAP and include support for your claim of timeliness.  Second, the COA is not itching to dismiss appeals (Judge Dietz noted for the Tyson panel that dismissal “runs counter to this Court’s goal of reaching the merits of every appeal brought before us”), so filing a backup Petition for Certiorari may save your bacon.  Third, in both Wright and Mathis, the appellant moved to dismiss, giving the appellee a window to make corrections.  No dismissal motion was filed in Tyson, but the panel’s “more in sorrow than in anger” opinion specified the step appellant could have taken (certiorari), implicitly noting sub silentio that the court can’t do everything for a defalcating party.  Fourth, make sure you know Dogwood Dev. & Mgmt. Col, LLC v. White Oak Transp. Co., 362 N.C. 191, 657 S.E.2d 361 (2008), which is cited in each of these opinions. Dogwood tells appellate practitioners how to get out of and/or stay out of trouble and is making a strong run to claim the Most-Cited-Opinion award.

–Bob Edmunds

Tip o’ the hat to Duane Jones.

Print Friendly, PDF & Email
Please follow and like us:
RSS
Facebook
Twitter
LinkedIn

One Response to "Who let the Dog(wood) out??"

  • Chuck Ivey
    April 4, 2019 - 3:55 pm Reply

    Once upon a time, I had a TPR case in which the Appellate Defender had to file a Conditional Petition for Writ of Certiorari due to a rather bizarre technical malfunction (occurring on Halloween no less): The the notice of appeal said it had been signed on 10/31, but that did not help matters because the file stamp said 10/32. Of course, the last day to file the Notice of Appeal fell on 10/31 and 11/1 was one day too late. . Since it was impossible to determine if the error was jurisdiction or non-jurisdictional under Dogwood, Rule 2 seemed like the best (and only) option available to the appellant. As the attorney for the GAL (the appellee in that case), I took the position that the cert petition should be allowed so the Court of Appeals could go ahead and reach the merits (finality is always a better option in Rule 3.1 cases)

Leave a Reply

Your email address will not be published. Required fields are marked *

*