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Taking Care of Business (Part II): Supreme Court Reverses Order Dismissing Appeal Based on Purported Signatory Defect in Notice of Appeal

As noted yesterday, the Supreme Court has been busy. Need further proof? How about the fact that the Supreme Court considered 279 “other matters” on Friday— a category that includes rulings on various substantive motions, PDRs, and writ petitions. By way of comparison, the number of “other matters” considered by the Supreme Court fell within the 134 to 182 range the last few times that opinions were released.

Which brings me to a fascinating “other matter” the Supreme Court addressed on Friday involving a notice of appeal. You have to review the petition for writ of certiorari packet to fully understand what happened, but I will attempt to summarize:

Appellate Rule 3(d) states that a notice of appeal should be “signed by counsel of record for the party or parties taking the appeal, or by any such party not represented by counsel of record.”  The appellee in Yigzaw v. Azres filed in the Court of Appeal a motion to dismiss the appeal. The motion to dismiss contended that the appellant’s otherwise timely notice of appeal was jurisdictionally defective under Appellate Rule 3(d) because it was signed by the party–rather than by the party’s appellate counsel, who had entered a limited notice of appearance on the same day the notice of appeal was filed.  (Side Note 1: I previously blogged on a similar NOA signatory dispute that occurred in Connor v. Connor).

In May 2019, the Court of Appeals issued orders that both granted the appellee’s motion to dismiss and denied the appellant’s alternative petition for writ of certiorari. (Side Note 2: There were two other alleged “violations” raised by the appellee’s motion to dismiss in Yigzaw. As I see no merit to those additional grounds and neither ground was jurisdictional, I can only assume that the dismissal by the Court of Appeals was based solely on the notice of appeal issue).

Thereafter, the appellant sought review in the Supreme Court of the orders granting the motion to dismiss and denying the appellant’s alternative petition for writ of certiorari.  In the Supreme Court, the appellant argued that a party’s signing of its own notice of appeal does not violate Appellate Rule 3(d)—but that even if it did, the Court of Appeals incorrectly determined that a requirement found only in Appellate Rule 3(d) was jurisdictional.

On Friday, the Supreme Court issued a special order allowing the appellant’s petition for writ of certiorari “for the limited purpose of reversing the Court of Appeals 18 May 2019 order dismissing plaintiff’s appeal.” I find it interesting that the Supreme Court reversed the Court of Appeals order dismissing the appeal—rather than reversing the Court of Appeals order denying the alternative petition for writ of certiorari.  Does this choice of wording signal that the Supreme Court found no defect with the notice of appeal—or at least no jurisdictional defect?

You may recall that about a year ago, I threw out some preliminary thoughts as to “When Is a Deadline or Other Requirement for Filing a Notice of Appeal Jurisdictional? (State Edition).”  Matt and I have fleshed these ideas out a bit more in our forthcoming book on North Carolina Appellate Practice and Procedure. However, the gist of our thoughts is that appellate requirements found only in the Appellate Rules typically should not be ascribed jurisdictional import—a concept that would seem to be gaining traction in the context of the Supreme Court’s recent Appellate Rule 21 jurisprudence.

Crazy thoughts or sound appellate jurisprudence? Hit me with your best shot in the comments below.

–Beth Scherer

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