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Zloops! Another Rule 3 Dismissal

About a year ago, we blogged on Zloop v. Parker Poe, in which the North Carolina Business Court dismissed an appeal because the notice of appeal was directed to the North Carolina Court of Appeals instead of the Supreme Court of North Carolina (pursuant to N.C.G.S. s. 7A-27(a), almost all appeals from Business Court orders go directly to the Supreme Court).  Yesterday, it happened again.  In Justice v. Mission Hospital, Judge Gale granted a motion to dismiss the plaintiffs’ appeal from an order granting defendants’ Rule 12(b)(6) motion to dismiss on the ground that the plaintiffs’ notice of appeal was directed to the Court of Appeals, which constituted a jurisdictional defect “which only the appellate courts have the authority to address.”  The Court noted that it believed that it had no choice but to dismiss the appeal, “even though the jurisdictional defect was clearly inadvertent and the record would allow for no finding that the Defendant was surprised as to the matter being appealed from or otherwise suffered prejudice.”  The Court simultaneously denied Plaintiffs’ motion to amend their notice of appeal to designate the Supreme Court of North Carolina as the court to which the appeal was being taken, holding that it lacks the discretion to cure the defective notice by allowing amendment.  In dismissing the appeal, Judge Gale noted that the Plaintiffs still had an avenue to the Supreme Court; the plaintiff in Zloop had filed a petition for writ of certiorari that was allowed.

With multiple dismissals of this type taking place, is it time for an amendment to Rule 3 of the North Carolina Rules of Appellate Procedure?  And is a notice of appeal requirement found only in the Appellate Rules truly jurisdictional?  Our collegue Beth Scherer previously ruminated on that question here.

–Patrick Kane

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