Appellate Jurisdiction Handout 2020 - Compatibility Mode · 2020. 9. 11. · “This Court may ex mero motu dismiss an appeal for lack of subject matter jurisdiction, even if it is

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Appellate Jurisdiction

David LagosOffice of Appellate Division Staff

Original vs. Appellate Jurisdiction

•Original Jurisdiction•Power to try the case or controversy•Hears the evidence and finds the facts• Jurisdiction may be exclusive or concurrent

•Appellate Jurisdiction• Jurisdiction is derivative of the trial tribunal•Corrects errors of law•No evidence gathering or fact‐finding role

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“The longstanding, general rule in North Carolina is that when a party gives notice of appeal, the trial court is divested of jurisdiction until the appellate court returns a mandate in the case.”‐‐ SED Holdings, LLC v. 3 Star Properties, LLC, 250 N.C. App. 215, 791 S.E.2d 914 (2016).



“[T]he trial court retains jurisdiction to take action which aids the appeal, . . . and to hear motions and grant orders, when those matters are not affected by the judgment appealed from.”‐‐ SED Holdings, LLC v. 3 Star Properties, LLC, 250 N.C. App. 215, 791 S.E.2d 914 (2016).



N.C.G.S. § 1‐294. Scope of stay

“When an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein, unless otherwise provided by the Rules of Appellate Procedure; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from.”


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“For purposes of G.S. § 1‐294, an appealis perfected when it is docketed in theappellate division. However, for purposesof the stay imposed by G.S. § 1‐294, theproper perfection of an appeal relatesback to the time notice of appeal wasgiven.”‐‐ Reid v. Town of Madison, 145 N.C. App. 146, 550 S.E.2d 826 (2001).



“The rule codified by [G.S.] 1‐294 is thatonce an appeal is perfected, the lowercourt is divested of jurisdiction. Ifpetitioner’s appeal is proper, any actiontaken by the trial court during its pendencyis void.”‐‐ Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 444 S.E.2d 252 (1994).



“When a litigant takes an appeal . . . from an appealable interlocutory order . . . and perfects such appeal in conformity to law, the appeal operates as a stay of all proceedings in the [Trial] Court relating to the issues included therein until the matters are determined in the [Appellate] Court.”‐‐ Veazey v. City of Durham, 231 N.C. 357, 364, 57 S.E.2d 377, 383 (1950)


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“[W]hen an appeal is taken . . . from an interlocutory order of the [Trial] Court which is not subject to appeal, the [Trial] Court need not stay proceedings, but may disregard the appeal and proceed to try the action . . . .”‐‐ Veazey v. City of Durham, 231 N.C. 357, 364, 57 S.E.2d 377, 383 (1950)



“(1) [A] trial court properly retains jurisdiction over a case if it acts reasonably in determining that an interlocutory order is not immediately appealable, and (2) that determination may be considered reasonable even if the appellate court ultimately holds that the challenged order is subject to immediate review.”‐‐ SED Holdings, LLC v. 3 Star Properties, LLC, 250 N.C. App. 215, 791 S.E.2d 914 (2016).



§ 15A‐1448. Procedures for taking appeal(a) Time for Entry of Appeal; Jurisdiction.

(1) A case remains open for the taking of an appeal . . . for the period provided in the rules of appellate procedure for giving notice of appeal.

(2) When a motion for appropriate relief is made under G.S. 15A‐1414 or G.S. 15A‐1416(a), the case remains open for the taking of an appeal until the court has ruled on the motion.

(3) The jurisdiction of the trial court with regard to the case is divested, except as to actions authorized by G.S. 15A‐1453, when notice of appeal has been given and the period in (1) and (2) has expired. Appellate Jurisdiction, 2020 12

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“[Appellate Rule 4] allow[s] a writtennotice of appeal in a criminal case to befiled 14 days after the entry of a judgment.Therefore, under the plain language of §15A-1448(a)(3), the trial court hasjurisdiction until notice of appeal has beengiven and 14 days have passed.”-- State v. Lebeau, 843 S.E.2d 317 (N.C. Ct.App. 2020).


The Judicial Power in North CarolinaNorth Carolina Constitution of 1971, Article IV•General Court of Justice A “unified judicial system for purposes of jurisdiction, operation, and administration” by an Administrative Office of the CourtsDistrict Court DivisionSuperior Court DivisionAppellate Division

•Administrative AgenciesCreatures of the Executive (Article III)Granted judicial powers as needed to accomplish purposeAppeals from agency decisions lie to the General Court of Justice


The Judicial Power in North Carolina

North Carolina Constitution of 1971, Article IV

• General Court of JusticeEstablished by 1962 amendment to Article IVA “unified judicial system for purposes of jurisdiction, operation, and administration” by an Administrative Office of the Courts

District Court DivisionSuperior Court DivisionAppellate Division

• Administrative AgenciesCreatures of the Executive (Article III)Granted judicial powers as necessary to accomplish their purpose

Appeals from agency decisions to the General Court of Justice


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Article IV Powers

Supreme Court• Appellate jurisdiction to review any decision of a lower court “upon any matter of law or legal inference”• Direct review of Utilities Commission as authorized by law• General supervisory authority over lower courts and their proceedingsExclusive authority to promulgate rules for Appellate Division May promulgate rules for trial divisions if delegated by General AssemblyMay issue any remedial writs necessary for its supervisory function

Court of Appeals• Appellate jurisdiction as prescribed by General Assembly


Jurisdiction of the Supreme CourtN.C. Gen. Stat. Chapter 7A

• Original jurisdiction: Claims v. State.• Original jurisdiction: Judicial disciplinary proceedings.

• Appellate jurisdiction: Appeals of RightJudgment imposing death penalty for 1st degree murder.Final judgment of Utilities Comm’n in general rate case.Final judgment of Business Court.

Interlocutory orders of Business Court as prescribed.Any trial court decision on class action certification .Order granting or denying TPR.COA decision with a dissent or directly involving a substantial constitutional question.

• Appellate jurisdiction: Discretionary reviewDecisions of the Court of Appeals (except G.S. § 7A‐28)By certification prior to decision by COA


Jurisdiction of the Court of AppealsN.C. Gen. Stat. Chapter 7A

• Appellate jurisdiction: Appeals of rightSuperior Court: Final judgment in any non‐death‐penalty criminal case or on review of any administrative agency decision (except court martial). Superior and District Court (except Business Court): Final judgment in any civil case (except TPR); interlocutory orders in civil cases as prescribed.Superior Court: “[A]ny other order or judgment . . . from which an appeal is authorized by statute.”Administrative Agencies: Final order or decision as listed in N.C.G.S. §§ 7A‐29(a), ‐250(a).

• Appellate jurisdiction: Discretionary review of Superior Court decisions in court‐martial cases.


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Jurisdiction of the Court of AppealsN.C. Gen. Stat. Chapter 7A

Interlocutory Appeals, G.S. § 7A‐27(b)(3)• Any interlocutory order or judgment in a civil action (except Business Court) that does any of the following:a. Affects a substantial rightb. In effect determines the action and prevents a judgment from which an appeal might be takenc. Discontinues the actiond. Grants or refuses a new triale. Determines a claim prosecuted under G.S. 50‐19.1f. Grants temporary injunctive relief restraining the State or a political subdivision of the State from enforcing the operation or execution of an act of the General Assembly


Jurisdiction: Kind of A Big Deal

“This Court may ex mero motu dismiss an appeal for lack of subject matter jurisdiction, even if it is not raised by the parties on appeal.”‐‐ Henke v. First Colony Builders, Inc., 126 N.C. App. 703, 486 S.E.2d 431 (1997).

“Subject matter jurisdiction may not be waived, and this Court has the power and the duty to determine issues of jurisdiction ex mero motu, and to dismiss an appeal if we find it lacking.”‐‐ In re Will of Harts, 191 N.C. App. 807, 664 S.E.2d 411 (2008).


The Right of Appeal“[T]he right of appeal is purely statutory, and . . .unless some statute authorizes an appeal thejudgment of a court of competent jurisdiction isfinal[.]”‐‐ Cook v. Vickers, 141 N.C. 101, 53 S.E. 740(1906).

“The right of appeal, as we presently know it incriminal cases, is purely a creature of statute; inorder to exercise that statutory right of appealone must come within the terms of theapplicable statute . . . .”‐‐ Abney v. United States, 431 U.S. 651 (1977).


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The Right of Appeal in Civil Cases

CHAPTER 1. CIVIL PROCEDUREARTICLE 27. APPEAL

G.S. § 1‐277. Appeal from superior or district court judge

(a) An appeal may be taken from every judicial order ordetermination of a judge of a superior or district court, uponor involving a matter of law or legal inference, whether madein or out of session, which affects a substantial right claimedin any action or proceeding; or which in effect determines theaction, and prevents a judgment from which an appeal mightbe taken; or discontinues the action, or grants or refuses anew trial.

(b) Any interested party shall have the right of immediateappeal from an adverse ruling as to the jurisdiction of thecourt over the person or property of the defendant or suchparty may preserve his exception for determination upon anysubsequent appeal in the cause.


The Right of Appeal in Civil Cases

CHAPTER 50. DIVORCE AND ALIMONYSUBCHAPTER 09 . APPEAL

ARTICLE 1. DIVORCE, ALIMONY, AND CHILD SUPPORT

G.S. § 50‐19.1. Maintenance of certain appeals allowed

Notwithstanding any other pending claims filed in thesame action, a party may appeal from an order orjudgment adjudicating a claim for absolute divorce,divorce from bed and board, the validity of a premaritalagreement . . ., child custody, child support, alimony, orequitable distribution if the order or judgment wouldotherwise be a final order or judgment within themeaning of G.S. 1A‐1, Rule 54(b), but for the otherpending claims in the same action.


The Right of Appeal in Civil CasesFinal vs. Interlocutory Orders

G.S. § 1A‐1, Rule 54. Judgments

(a) Definition.‐‐A judgment is either interlocutory orthe final determination of the rights of the parties.

“A final judgment is one which disposes of the causeas to all the parties, leaving nothing to be judiciallydetermined between them in the trial court. Aninterlocutory order is one made during the pendencyof an action, which does not dispose of the case, butleaves it for further action by the trial court in orderto settle and determine the entire controversy.”‐‐ Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377(1950).


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The Right of Appeal in Civil CasesFinal vs. Interlocutory Orders

“Upon entry of final judgment in a civil matter,appeals may be taken as of right to the Court ofAppeals. N.C.G.S. § 1‐277(a).”‐‐ Duncan v. Duncan, 366 N.C. 544, 742 S.E.2d799 (2013).

“As a general rule, interlocutory orders are notimmediately appealable.”‐‐ Turner v. Hammocks Beach Corp., 363 N.C.555, 681 S.E.2d 770 (2009).


Final vs. Interlocutory OrdersFinal Final? . . . or just “Final”?

“Once the trial court enters an order thatdecides all substantive claims, the right toappeal commences. Failure to appeal from thatorder forfeits the right. Because attorney’s feesand costs are collateral to a final judgment onthe merits, an unresolved request for attorney’sfees and costs does not render interlocutory anappeal from the trial court’s order.”‐‐ Duncan v. Duncan, 366 N.C. 544, 742 S.E.2d799 (2013).


Final vs. Interlocutory OrdersRule 54(b) Certification: Quasi‐Final???

G.S. § 1A‐1, Rule 54. Judgments

(b) Judgment upon multiple claims or involving multiple parties.

When more than one claim for relief is presented inan action, . . . or when multiple parties are involved,the court may enter a final judgment as to one ormore but fewer than all of the claims or parties onlyif there is no just reason for delay and it is sodetermined in the judgment. Such judgment shallthen be subject to review by appeal or as otherwiseprovided by these rules or other statutes.


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The Right of Appeal in Civil CasesInterlocutory Appeals

“Interlocutory orders may be appealed immediatelyunder two circumstances. The first is when the trialcourt certifies [under Rule 54(b)] no just reasonexists to delay the appeal after a final judgment as tofewer than all the claims or parties in the action. Thesecond is when the appeal involves a substantialright of the appellant and the appellant will beinjured if the error is not corrected before finaljudgment.”

‐‐ N.C. Dep’t of Transp. v. Stagecoach Village, 360 N.C. 46, 619 S.E.2d 495 (2005).


Interlocutory AppealsRule 54(b) Certification

“When the trial court [properly] certifies its orderfor immediate appeal under Rule 54(b), appellatereview is mandatory.”‐‐ Sharpe v. Worland, 351 N.C. 159, 522 S.E.2d577 (1999).

“A trial judge [cannot] by denominating hisdecree a ‘final judgment’ make it immediatelyappealable under Rule 54(b) if it is not such ajudgment.”‐‐ Tridyn Indus. v. Am. Mut. Ins. Co., 296 N.C.486, 491, 251 S.E.2d 443, 447 (1979).


Interlocutory AppealsSubstantial Right

“The appellant has the burden of showingthis Court that the order deprives theappellant of a substantial right whichwould be jeopardized absent a reviewprior to a final determination on themerits.”‐‐ Jeffreys v. Raleigh Oaks Joint Venture,115 N.C. App. 377, 444 S.E.2d 252 (1994).


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Scope of Interlocutory Appeal


Scope of Interlocutory Appeal

“We affirm the trial court’s denial of defendants’ motion to dismiss plaintiff's action on grounds of sovereign immunity. . . . We dismiss defendants’ remaining argument addressing plaintiff’s lack of standing to bring the present action, as defendants have failed to show how the trial court’s denial of their motion to dismiss on that basis affects a substantial right warranting immediate appellate review.”‐‐ Richmond Cty. Bd. of Educ. v. Cowell, 225 N.C. App. 583, 739 S.E.2d 566 (2013).


The Right of Appeal in Civil CasesInterlocutory Appeals

“The language of N.C.G.S. § 1‐277 is permissivenot mandatory. Thus, where a party is entitled toan interlocutory appeal based on a substantialright, that party may appeal but is not required todo so.‐‐ Dep’t of Transp. v. Rowe, 351 N.C. 172, 521S.E.2d 707 (1999)

See G.S. § 1‐278. Interlocutory orders reviewedon appeal from judgment.“Upon an appeal from a judgment, the court mayreview any intermediate order involving themerits and necessarily affecting the judgment.”


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The Right of Appeal in Criminal Cases

CHAPTER 15A. CRIMINAL PROCEDURE ACT ARTICLE 91. APPEAL TO APPELLATE DIVISION

G.S. § 15A‐1444. When defendant may appeal.• (a) A defendant who . . . has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered. . . . .

See also G.S. §§ 15A‐270.1, ‐1432(d), ‐1444(a1)‐(a2), (e)

G.S. § 15A‐1445. Appeal by the State. See also G.S. § 15A‐979(c), ‐1432(d)‐(e), ‐1445(a)‐(b).

‐‐See Mike Rodgers on Criminal Appeals ‐‐


The Right of Appeal in Criminal Cases

A Right of Appeal without COA Jurisdiction?

CHAPTER 15A. CRIMINAL PROCEDURE ACT ARTICLE 58A. Felony Guilty Pleas in District Court

G.S. § 15A‐1029.1

(a) [T]he presiding superior court judge may order atransfer of the defendant’s case to the district court[to allow] the defendant to enter a plea of guilty orno contest to a Class H or I felony.

(b) . . . Appeals that are authorized in these matters areto the appellate division.

No corresponding jurisdictional grant to COA in G.S. §7A‐27(b). But see N.C.G.S. §§ 7A‐272(d), 15A‐1444.


Appellate Jurisdiction by PetitionG.S. § 7A‐32. Power of Supreme Court and Court of Appeals to issue remedial writs.

(c) The Court of Appeals has jurisdiction . . . to issuethe prerogative writs, including mandamus,prohibition, certiorari, and supersedeas, in aid of itsown jurisdiction, or to supervise and control theproceedings of any of the trial courts of the GeneralCourt of Justice, and of the Utilities Commission andthe Industrial Commission. The practice andprocedure shall be as provided by statute or rule ofthe Supreme Court, or, in the absence of statute orrule, according to . . . the common law.


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“Right” of Review by PetitionCivil

G.S. § 1‐269. Certiorari, recordari, supersedeas.Writs of certiorari, recordari, and supersedeas areauthorized as heretofore in use.

CriminalG.S. § 15A‐1444. When defendant may appeal;

certiorari(g) Review by writ of certiorari is available whenprovided for by this Chapter, by other rules oflaw, or by rule of the appellate division.


Authorized PetitionsN.C. Rules of Appellate Procedure

•Rule 15: Petition for Discretionary Review

•Rule 21: Petition for Writ of Certiorari

•Rule 22: Petition for Writ of Mandamus orProhibition

•Rule 23: Petition for Writ of Supersedeas

•Rule 31: Petition for Rehearing ‐‐ Stay Tuned for Jaye Bingham‐Hinch

on Petitions ‐‐Appellate Jurisdiction, 2020 38

The Notice of Appeal


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The Notice of Appeal“When the record does not include a notice ofappeal, the appellate courts are withoutjurisdiction.“‐‐ In re Hudson, 165 N.C. App. 894, 600 S.E.2d 25(2004).

“[W]ithout proper notice of appeal, the appellatecourt acquires no jurisdiction and neither the courtnor the parties may waive the jurisdictionalrequirements even for good cause shown underRule 2 of the Rules of Appellate Procedure.”‐‐ In re Me.B., 181 N.C. App. 597, 640 S.E.2d 407(2007).


Giving Notice of Appeal in Civil Cases

G.S. § 1‐279.1. Manner and time for giving notice ofappeal to appellate division in civil actions and inspecial proceedings.

“Any party entitled by law to appeal from a judgment or order rendered by a judge in superior or district court in a civil action or in a special proceeding may take appeal by giving notice of appeal within the time, in the manner, and with the effect provided in the rules of appellate procedure.”


Giving Notice of Appeal in Civil CasesN.C.R. App. P. 3 – Method and Timing

Any party entitled by law to appeal from a judgment or order rendered in a civil action may . . .

• File notice of appeal with the clerk of superior court and serve copies upon all other parties(1) Within 30 days of entry of judgment if served within 3

days per N.C.R. Civ. P. 58; or(2) Within 30 days of service of the judgment if served

after the 3‐day period in Rule 58.

• A timely Rule 50(b), 52(b) or 59 motion tolls the 30‐day appeal period until entry and service of the order ruling on the motion.

N.C.R. Civ. P. 58: A judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk.

N.C.R. App. P. 26(c)‐(d): Manner and Proof of Service.Appellate Jurisdiction, 2020 42

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Giving Notice of Appeal in Civil Cases

“ ‘[W]here . . . there is no certificate of service in therecord showing when appellant was served with thetrial court judgment, appellee must show thatappellant received actual notice of the judgmentmore than thirty days before filing notice of appeal inorder to warrant dismissal of the appeal.’ Brown v.Swarn, 257 N.C. App. 417, 810 S.E.2d 237 (2018).Under Brown, unless the appellee argues that theappeal is untimely, and offers proof of actual notice,we may not dismiss.”‐‐ Adams v. Langdon, 264 N.C. App. 251, 826 S.E.2d236 (2019)


Giving Notice of Appeal in Juvenile Abuse/Neglect/Dependency and TPR Cases

G.S. § 7B‐1001. Right to appeal.

(b) Notice of appeal and notice to preserve theright to appeal shall be given in writing by aproper party as defined in G.S. 7B‐1002 and shallbe made within 30 days after entry and service ofthe order in accordance with G.S. 1A‐1, Rule 58.

(c) Notice of appeal shall be signed by both theappealing party and counsel for the appealingparty, if any. In an appeal by a juvenile, notice ofappeal shall be signed by the GAL attorneyadvocate.


Giving Notice of Appeal in Juvenile Abuse/Neglect/Dependency and TPR Cases

N.C.R. App. P. 3.1 – Method and Timing

Any party entitled by law to appeal from a judgment or order in a case involving termination of parental rights or issues of juvenile abuse, neglect, or dependency may . . .

• File notice of appeal with the clerk of superior court• Serve copies upon all other parties. . . in the time and manner set out in G.S. 7B‐1001:

(1) Within 30 days of after entry and service of the order in accordance with Rule 58.

(2) Signed by both the appealing party and counsel (if any), or by the GAL attorney advocate in the case of a juvenile’s appeal.


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Giving Notice of Appeal in Criminal Cases

G.S. § 15‐1444. When defendant mayappeal; certiorari.

(d) Procedures for appeal to the appellate division are as provided in this Article, the rules of the appellate division, and Chapter 7A of the General Statutes. The appeal must be perfected and conducted in accordance with the requirements of those provisions.


Giving Notice of Appeal in Criminal CasesN.C.R. App. P. 4 – Method and Timing

Any party entitled by law to appeal from a judgment or order rendered in a criminal action may . . .

1. Give oral notice of appeal at trial, or

2. File notice of appeal with the clerk of superior court ad serve copies upon all adverse parties, see Rule 26A. Within 14 days of entry of judgment or order; orB. Within 14 days after a ruling on a motion for

appropriate relief made within 14 days of entry of judgment.

“For the purposes of entering notice of appeal in a criminalcase under Rule 4(a), a judgment or an order is entered . . .when the clerk of court records or files the judge’s decisionregarding the judgment or order.” ‐‐ State v. Oates, 366 N.C.264, 732 S.E.2d 571 (2012).


Giving Notice of Appeal in Administrative Cases

N.C.R. App. P. 18 – Method and Timing

Any party entitled by G.S. 7A‐29 to appeal directly to the Appellate Division from a final agency determination . . . 1. File and serve a notice of appeal within

30 days after receipt of a copy of the final order from the agency, or

2. By the method and timing provided in the statutes governing the agency.


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Giving Notice of Appeal in Administrative Cases

N.C.R. App. P. 18 – Method and Timing

See, e.g., N.C. Gen. Stat. § 97‐86 . . . “[E]ither partyto the dispute may, within 30 days from the date ofsuch award or within 30 days after receipt of noticeto be sent by registered mail or certified mail of suchaward, but not thereafter, appeal from the decisionof [the Industrial] Commission to the Court ofAppeals for errors of law under the same terms andconditions as govern appeals from the superior courtto the Court of Appeals in ordinary civil actions. Theprocedure for the appeal shall be as provided by therules of appellate procedure.”


Giving Notice of Appeal

Untimely Notice = No Jurisdiction

“Failure to file a timely notice of appeal from the finaljudgment waives the right to appeal.”‐‐ Duncan v. Duncan, 366 N.C. 544, 742 S.E.2d 799 (2013).

“It is well established that failure to give timely noticeof appeal . . . is jurisdictional, and an untimely attemptto appeal must be dismissed.”‐‐ In re A.L., 166 N.C. App. 276, 601 S.E.2d 538 (2004).



Untimely Notice = No JurisdictionN.C.R. App. P. 3 – Method and Timing (Civil)

Notice of appeal must filed with the clerk ofsuperior court and served on all other parties•within 30 days of entry of judgment if served within 3 days per N.C.R. Civ. P. 58; or•within 30 days of service of the judgment if served after the 3‐day period in Rule 58.


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“ ‘[W]here . . . there is no certificate of servicein the record showing when appellant wasserved with the trial court judgment, appelleemust show that appellant received actualnotice of the judgment more than thirty daysbefore filing notice of appeal in order towarrant dismissal of the appeal.’ Brown v.Swarn, 257 N.C. App. 417, 810 S.E.2d 237(2018). Under Brown, unless the appelleeargues that the appeal is untimely, and offersproof of actual notice, we may not dismiss.”‐‐ Adams v. Langdon, 264 N.C. App. 251, 826S.E.2d 236 (2019).


Giving Notice of AppealHow to Count


How to CountN.C.R. App. P. 27 ‐ Computation and Extension of Time

a) The day of the act is not included. The last day of the timeperiod is to be included, unless it is a Saturday, Sunday, ora legal state holiday; then go to the next business day.

b) If a response is permitted to a document served on aparty, the party gets 3 additional days when the item wasserved on them by mail/email. (The COA treats efileddocuments like mailed documents.)Per Rule 3(c): DOES NOT APPLY TO NOTICE OF APPEAL

N.C.R. App. P. 26 ‐ Filing and Service

a) The record on appeal, briefs, motions and responses topetitions are deemed filed when mailed, as evidenced bythe certificate of service. All other documents must bereceived by the clerk to be considered filed.


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Premature Notice of Appeal (Civil)“Rule 3 . . . provides the appellant must file and servenotice of appeal ‘within thirty days after entry ofjudgment . . . .’ In civil cases, a judgment is ‘entered’when it is ‘reduced to writing, signed by the judge, andfiled with the clerk of court.’ G.S. § 1A‐1, Rule 58. . . .Here, the trial court’s order was ‘entered’ . . . on 26October 2015. An entered order did not exist whenDefendant filed notice of appeal on 7 October 2015.Defendant did not file a subsequent or amended noticeof appeal following entry of the order. . . . Defendanthas failed to take timely action to perfect his appealpursuant to Appellate Rule 3, and his appeal is notproperly before this Court.”‐‐Mannise v. Harrell, 249 N.C. App. 322, 791 S.E.2d 653(2016).


Premature‐ish Notice of Appeal (Criminal)

Under N.C.R. App. P. 4(a), “written notice [ofappeal] may be filed at any time between thedate of the rendition of the judgment or orderand the fourteenth day after entry of thejudgment or order.”‐‐ State v. Oates, 366 N.C. 264, 732 S.E.2d 571(2012).


Giving Notice of AppealN.C.R. App. P. 3(d), 4(b), 18(b)(2)

Contents of Notice of Appeal

•Specify the party taking the appeal;•Designate the judgment(s) or order(s) from which the appeal is taken;

•Designate the court to which the appeal is taken;

•Be signed by counsel of record, or by appealing party if without counsel.


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Designation of Judgment or Order Appealed

“[F]ailure to designate a particular judgment or order in the notice of appeal generally divests this Court of jurisdiction to consider that order.” ‐‐ Yorke v. Novant Health, Inc., 192 N.C. App. 340, 666 S.E.2d 127 (2008).

Exception: “[If] the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake,” or “if the [appellant’s action] accomplishes the functional equivalent of the requirement.”‐‐ Von Ramm v. Von Ramm, 99 N.C. App. 153, 392 S.E.2d422 (1990).




“[F]ailure to designate a particular judgment or order in the notice of appeal generally divests this Court of jurisdiction to consider that order.” ‐‐ Yorke v. Novant Health, Inc., 192 N.C. App. 340, 666 S.E.2d 127 (2008)

Exception: “Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment.”‐‐ N.C. Gen. Stat. § 1‐278




“[I]f an appellant omits a certain order from the notice of appeal, our Court may still obtain jurisdiction to review the order pursuant to N.C. Gen. Stat. § 1‐278. Review under N.C.G.S. § 1‐278 is permissible if three conditions are met:

(1) the appellant must have timely objected to the order;

(2) the order must be interlocutory and not immediately appealable; and

(3) the order must have involved the merits and necessarily affected the judgment.”

‐‐ Yorke v. Novant Health, Inc., 192 N.C. App. 340, 666 S.E.2d 127 (2008).


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Designation of Judgment or Order Appealed“While G.S. 1‐278 does provide that interlocutory ordersaffecting a judgment appealed from can be reviewed with thejudgment, that statute applies only to interlocutory ordersthat are not appealable; the order upholding the court'sjurisdiction over defendant's person was immediatelyappealable under the express provisions of G.S. 1‐277(b). Thisdoes not mean, of course, that defendant had to pursue anappeal from the order at that time; he could have preserved hisexception for determination later as G.S. 1‐277(b) permits. Butit does mean that having the right to appeal he was obliged toexercise that right, if at all, by first giving timely notice of appealin accord with the provisions of G.S. 1‐279.”‐‐ Gualtieri v. Burleson, 84 N.C. App. 650, 353 S.E.2d 652 (1987).




Failure to designate the final judgment in the notice of appeal is a jurisdictional defect, even when the appellant intends only to challenge a previously‐entered interlocutory order.

‐‐Majerske v. Majerske, 247 N.C. App. 245, 785S.E.2d 782 (2016) (unpublished); accord State v.Miller, 205 N.C. App. 724, 696 S.E.2d 542(2010); In re A.L., 166 N.C. App. 276, 601 S.E.2d538 (2004).


Giving Notice of AppealOther Defects: Are They Jurisdictional?

(Probably Not)“We may liberally construe a notice of appeal in one of twoways to determine whether it provides jurisdiction . . . . First,a mistake in designating the judgment . . . should not resultin loss of the appeal as long as the intent to appeal from aspecific judgment can be fairly inferred from the notice andthe appellee is not misled by the mistake. Second, if a partytechnically fails to comply with procedural requirements infiling papers with the court, the court may determine thatthe party complied with the rule if the party accomplishesthe functional equivalent of the requirement.”

‐‐ Von Ramm v. Von Ramm, 99 N.C. App. 153, 392 S.E.2d 422(1990)


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Other Defects: Are They Jurisdictional?(Probably Not) (But This One Likely Is)

Chapter 7B. Juvenile CodeSubchapter I. Abuse, Neglect, Dependency

N.C.G.S. § 7B‐1001. Right to Appeal

(c) Notice of appeal shall be signed by both theappealing party and counsel for the appealing party, ifany.

“Because the notice of appeal . . . is not signed byrespondent mother, we must grant the GAL’s motionto dismiss this appeal.”‐‐ In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008),aff’d, 363 N.C. 254, 675 S.E.2d 361 (2009).


Jurisdiction: Kind of A Big Deal

“This Court may ex mero motu dismiss an appeal for lack of subject matter jurisdiction, even if it is not raised by the parties on appeal.”‐‐ Henke v. First Colony Builders, Inc., 126 N.C. App. 703, 486 S.E.2d 431 (1997).

“Subject matter jurisdiction may not be waived, and this Court has the power and the duty to determine issues of jurisdiction ex mero motu, and to dismiss an appeal if we find it lacking.”‐‐ In re Will of Harts, 191 N.C. App. 807, 664 S.E.2d 411 (2008).


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Documents

Appellate Jurisdiction Handout 2020 - Compatibility Mode · 2020. 9. 11. · “This Court may ex mero motu dismiss an appeal for lack of subject matter jurisdiction, even if it is