A Day Late and a Dollar Short – Jurisdictional Trap In the Rules of Appellate Procedure

A lesson today from the Court of Appeals, in terms of the timeliness of filing an appeal.  Also, probably, the benefits of hiring a lawyer.  Now, it relates to marital property — not to land use — but procedural issues are important to all lawyers.  So, we think it’s worth our time.  We’re looking at Cramer v. Perry, No. COA16-375 (February 7, 2017).

It goes like this.  On November 10, 2014, the trial court issued an equitable distribution order distributing marital property.  On November 24, 2014, plaintiff filed a motion to set aside/for new trial regarding that November 10, 2014 order.  On April 9, 2015, the trial court heard the motion.  On October 5, 2015, the trial court entered an order denying the motion, which was a judgment.  On November 5, 2015 – 31 days after the entry of the October 5 judgment – plaintiff (proceeding pro se) filed his notice of appeal of the November 2014 and the October 2015 orders.

The Court opens with the statement:  “It is well established that failure to give timely notice of appeal is jurisdictional, and an untimely attempt to appeal must be dismissed.”  That is, in the words of Yoda, “do or do not” meet the filing deadline for an appeal; there is no try.  The Court then cites to the North Carolina Rules of Appellate Procedure, which are clear:  “In civil actions and special proceedings, a party must file and serve a notice of appeal:  (1) within thirty days after entry of judgment if the party has been served with a copy of the judgment within the three day period prescribed by Rule 58 of the Rules of Civil Procedure, or (2) within thirty days after service upon the party of a copy of the judgment if service was not made within that three day period….”

Plaintiff’s own notice of appeal admitted service of the judgment on his counsel “on or about October 7, 2015”.  Of course, the October 7 service date falls “within the three day period” of the entry of the October 5 judgment from which Plaintiff is appealing.  Therefore, because plaintiff was served within three days of the October 5 entry of the judicial order, he must file his notice of appeal “within thirty days after entry of judgment”.  Plaintiff did not do so; rather, plaintiff filed his appeal notice on November 5, which is 31 days after the October 5 entry of judgment.  Accordingly, the Court dismissed plaintiff’s appeal.

Perhaps plaintiff counted wrongly.  Perhaps plaintiff thought he had 30 days from the October 7 date of service of judgment, rather than 30 days from the October 5 date of entry of judgment.  Perhaps proceeding pro se on his appeal resulted in the error.  Perhaps a lawyer would have saved the matter from the jaws of procedural defeat.  I don’t know.  But we can say that time frames matter, and the pitfalls can be deadly.

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