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Tag Archives: Notice of Appeal

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 …Read More

Business Court Dismisses Appeal for Naming the Wrong Appellate Court

Except for appeals in really old cases, appeals from a final judgment entered by a Business Court judge are properly taken to the Supreme Court of North Carolina, not the Court of Appeals. So what happens when a party files a notice of appeal in a Business Court case that mistakenly names the Court of Appeals as the court to which appeal is taken? The Business Court held this week in Zloop, …Read More

File-Stamp Not Dispositive As To When Notice Of Appeal Was Filed

Our readers know that the date of filing of a Notice of Appeal in the “home county” establishes compliance with Appellate Rule 3.  But is the file-stamp on that notice of appeal unassailable?  On Wednesday, the North Carolina Business Court answered that question in the negative. In Azure Dolphin LLC v. Barton, the deadline for filing the notice of appeal was 1 November 2017. The notice of appeal filed in …Read More

Which Orders Can Be Included In A Cross-Appeal?

One sentence of Rule 3(c) of the North Carolina Rules of Appellate Procedure provides: “If timely notice of appeal is filed and served by a party, any other party may file and serve a notice of appeal within ten days after the first notice of appeal was served on such party.” If one party appeals from a final judgment, what can be included in the other party’s cross-notice of appeal? …Read More

Court of Appeals Doubles Down on Deadlines: Notice of Appeal Really Can Be Filed Too Early

A few months ago, I wrote about a case in which the Court of Appeals held that a notice of appeal was filed too early because the time period for filing a notice of appeal does not begin until judgment is entered. See Mannise v. Harrell. In that post, I indicated that it was “unclear how far the Mannise holding extends.” Last week, the Court of Appeals provided some clarification …Read More

A Lesson in Helping Verbs: When You May, Might, or Must Appeal

In its final set of opinions from 2016, the North Carolina Court of Appeals provided some helpful reminders for appellate practitioners. 1. Unless some other exception applies, you may appeal from an interlocutory order only if it affects a substantial right. In Pass v. Brown, the Court reminded us that an appellant must identify a substantial right affected by each issue, not by an immediate appeal as a whole. Despite the …Read More

Upcoming Changes to the Federal Rules of Appellate Procedure

Along with changes to the federal civil procedure and bankruptcy rules, the Federal Rules of Appellate Procedure will likely see a significant change in less than a month. Unless Congress decides otherwise, the revisions will provide new page and word count limits for certain filings and clarify which items are to be included in the word count. Importantly, under revised Rule 32, principal briefs will be limited to 13,000 words …Read More

Proper Etiquette Is To Be On Time–Not Early

You should always file your notice of appeal as soon as possible, right? Wrong. This is one instance in which being early can actually be detrimental to your client’s rights. In Mannise v. Harrell, the Court of Appeals determined that a notice of appeal filed too early was improper and could only be reviewed by writ of certiorari. The case involved a domestic dispute between two parents in which the …Read More

Are Certain Rule 60 Orders Unappealable?

Savvy practitioners know that some post-trial motions toll the deadline for filing a notice of appeal, but motions brought under Rule 60 of the Rules of Civil Procedure do not. So what happens when a trial court rules on a Rule 60 motion after the final judgment’s appellate deadline?  If the final judgment was not appealed, can a party appeal from the Rule 60 decision? The Court of Appeals recently …Read More

A FedEx Nightmare

Eleven days before it is due, you FedEx your Notice of Appeal to the county courthouse, return-receipt requested. Seven days before it is due, you receive an e-mail confirmation that the document was, in fact, delivered.  You have timely appealed, right? Maybe not. In Hefner v. Mission Hospital, a Business Court case, a final order was filed-stamped in the county courthouse on December 17, 2015, starting the thirty-day clock during …Read More