No, this post is not a tribute to David Ives. In many appellate cases, it really is all in the timing.
Some appellate rules regarding timing are easy to state. The deadlines to file a notice of appeal, an opening brief, and a petition for discretionary review are relatively straightforward.
But other timing issues are less obvious. The most recent set of opinions from the Court of Appeals addresses several of these thornier problems.
THE RULE 12 MOTION
North Carolina appellate practitioners are familiar with the general rule that interlocutory orders denying a motion to dismiss for lack of personal jurisdiction are immediately appealable but orders regarding subject matter jurisdiction are not. So what happens when an order involves both?
In Dipasupil v. Neely, the defendant moved to dismiss a complaint for both lack of subject matter jurisdiction and lack of personal jurisdiction. The trial court granted the motion as to a claim for criminal conversation but denied it as to a claim for alienation of affection. The defendant appealed. Could he do so?
According to the Court of Appeals, yes. An appellate court can review an issue of subject matter jurisdiction when “there is an accompanying challenge to personal jurisdiction.” Thus, the Court of Appeals went on to address the issue, determined that the plaintiff had not proven that alienating conduct occurred in North Carolina, and held that the trial court’s order had to be reversed due to lack of subject matter jurisdiction over the claim for alienation of affection. As a result, the Court did not need to address the issue of personal jurisdiction.
Notably, the Court acknowledged that the rule might be different for cases involving sovereign or governmental immunity—which brings to mind the long-standing questions about the nature of such immunity doctrines.
THE POST-TRIAL MOTION
In Long Brothers of Summerfield, Inc. v. Hilco Transport, Inc., the trial court initially entered judgment in favor of the plaintiff based on a jury verdict. In November 2017, the trial court then entered an order granting the defendant’s motion for judgment notwithstanding the verdict. In January 2018, the trial court entered another order that taxed costs against the plaintiff and “reiterated that Defendant’s motion for JNOV was being granted.” The plaintiff then filed a notice of appeal. Was it timely?
According to the Court of Appeals, maybe. The initial order granting JNOV indicated that a motion for costs might be forthcoming, and the order contemplated entering “a final judgment that addresses the award of costs and reflects the granting of Defendant’s Motion for Judgment Notwithstanding the Verdict.” The Court of Appeals stated that the order’s language “could create confusion” and, rather than resolving the jurisdictional question, granted the plaintiff’s alternative petition for writ of certiorari.
In light of the Supreme Court’s 2013 decision in Duncan v. Duncan, the decision to grant certiorari seems like the prudent approach.
THE CRIMINAL NOTICE OF APPEAL
Rule 4 of the North Carolina Rules of Appellate Procedure provides an exception to the normal rule that a notice of appeal must be in writing. An aggrieved party in a criminal case “may take appeal by giving oral notice of appeal at trial.” N.C. R. App. P. 4(a)(1).
In State v. Iyapo, the defendant was found guilty by a jury and sentenced to prison. His attorney entered oral notice of appeal. Yet, the Court of Appeals determined that the oral notice was improper. Why?
Because it was not made “at trial.” The defendant’s counsel had appeared before the trial court and entered notice of appeal four days after the trial had concluded. The Court of Appeals explained: “A careful reading of Rule 4 provides that oral notice of appeal can only be given in the criminal session when defendant’s actual trial is held.” Because the oral notice was given after the trial proceedings had concluded, it was untimely.
Fortunately for this defendant, the Court granted his petition for writ of certiorari. But the opinion is an important reminder that the exception for an oral notice of appeal is carefully circumscribed.
As always, we are eager to know your thoughts on any of these issues.
***If you want to get deeper into these issues, I recommend consulting the treatise authored by my colleagues Beth and Matt.