To end the week, I’ll point out three recent Court of Appeals opinions that remind us that a Rule 59 (“new trial”) motion will not toll an appeal period if the motion does not actually seek proper Rule 59 relief. If, for example, the motion does not provide proper notice of the grounds for relief, or if it is being used merely as a general “motion for reconsideration,” it may not be considered “proper.” As I’ve discussed in previous posts (here and here), North Carolina Rule of Civil Procedure 59 permits a trial judge to order a new trial (or, through Rule 59(e), amendment of judgment) for a number of reasons, including prejudicial irregularity, jury misconduct, newly-discovered evidence, insufficient evidence to justify the verdict, prejudicial error of law, and other bases. A proper Rule 59 motion tolls the period for appeal of the underlying judgment. N.C. R. App. P. 3(c)(3); G.S. 1-279.1. But if a court determines that Rule 59 was not the appropriate vehicle for remedy sought, the appeal period will not have been tolled. These three recent published opinions are our newest examples of this outcome: Continue Reading
The North Carolina General Assembly recently made two important changes to Chapter 50B regarding civil domestic violence protective orders. S.L. 2017-92, “Domestic Violence Appeals and Modifications”, was effective October 1, 2017.
When a city, county, or other unit of local government is sued for negligence or other torts, it’s common practice for the unit’s attorney to file a motion asking the trial court to dismiss the lawsuit based on the defense of governmental immunity. (See blog posts available here and here for an explanation of governmental immunity fundamentals.) Many local government attorneys believe that, if the trial court denies such a motion, the unit always has the right to an immediate appeal. As a recent decision by the North Carolina Court of Appeals reminds us, however, whether the unit may immediately appeal can depend on how the immunity defense is framed in the motion. This blog post aims toContinue Reading
Since the initial publication of this post, the Governor signed H362. This post was amended on July 31, 2017 to reflect that change and reference the session law.
The 2017 Legislative Session created and amended various statutes affecting child welfare. Some of those changes are effective now and others will become effective at later dates. This post highlights those amendments that directly impact practice in abuse, neglect, dependency, or termination of parental rights actions. A more complete summary of the numerous legislative changes can be found on the School of Government website, here. Continue Reading
In my last post, I wrote about the office of the clerk of superior court and the clerk’s judicial authority. I provided a basic framework for this authority and noted that that the clerk’s non-criminal authority falls into three main categories:
- estates and trusts,
- civil, and
- special proceedings.
My last blog post discussed the loss of trial court jurisdiction following an appeal. But the court of appeals has held that only appropriate appeals remove jurisdiction from the trial court. If a party appeals an order that is not immediately appealable, the trial court is not divested of jurisdiction and can proceed with the merits of the case, even if the merits involve the issues on appeal. See T&T Development Co., Inc. v. Southern National Bank, 125 N.C. App. 600 (1997)(appeal of decision on a motion in limine did not deprive court of jurisdiction); Harris v. Harris, 58 N.C. App. 175, rev’d on other grounds, 307 N.C. 684 (1983)(appeal of an interlocutory order in a separation agreement case did not deprive court of jurisdiction).
Generally speaking, a party has the right to appeal only a final judgment. However, there are times that an interlocutory order is appropriate. So what should the court do when a party appeals an order that clearly is not a final judgment, such as a temporary custody order or a PSS order or an interim distribution in an ED case? When is the interlocutory appeal appropriate?
Even if you don’t know much about North Carolina’s Rules of Appellate Procedure, you probably know this: There’s a 30-day time frame in which to appeal a civil judgment, and this deadline is jurisdictional—an untimely notice of appeal “mandates dismissal” of the appeal. E.g., Bailey v. State, 353 N.C. 142, 156 (2000). In other words, Thou Shalt Not Miss Thy Appeal Deadline. Naturally, then, a would-be appellant needs to know when the 30-day appeal period begins and ends.
The general time requirement is set out in Rule 3(c)(1), which makes clear that the notice of appeal must be filed and served within 30 days after entry of judgment as long as “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.” (Served pursuant to Rule 5 within three days of entry of judgment.) Under Rule 3(c)(2), however, when the party is not served within that three day period, the notice of appeal must be filed and served within 30 days “after service upon the party of a copy of the judgment.”
By the plain language of Rule 3(c)(2), a party not served within three days would be led to think that its 30-day appeal clock starts when service is made. Not so fast. In a series of fairly recent opinions, the Court of Appeals has held that, if the appellant had some sort of actual notice of the judgment during those three days after its entry, Rule 3(c)(2) does not apply. If there was actual notice, the 30 days instead began to run upon entry of judgment. Here, in brief, are the opinions: Continue Reading
** UPDATE: On October 4, 2016, the N.C. Court of Appeals published a decision, In re Dippel, in which the court applied G.S. 35A-1115 and G.S. 1-301.2 to hold that an aggrieved party has the right to appeal from the clerk’s order dismissing an incompetency proceeding. In that case, the court determined that the petitioner was an aggrieved party and could appeal from the clerk’s order. However, the court did not provide any analysis as to how the petitioner is aggrieved by the clerk’s order dismissing the incompetency proceeding pertaining to the respondent’s competency. The opinion therefore provides limited guidance going forward as to whether a person that is entitled to notice and is not the petitioner has a right to appeal the clerk’s order dismissing the incompetency proceeding as an aggrieved party. **
Bob and Mary have been married for 60 years. They live at home together but recently Mary’s health has started to decline significantly. Due to a concern over Mary’s ability to care for herself, a friend of Mary’s makes a report to the county department of social services (DSS). After an investigation, DSS decides to file a petition to adjudicate Mary incompetent and an application to have a guardian appointed on her behalf. DSS sends notice of the proceeding to both Bob and Jane, their daughter, as Mary’s next of kin. After a hearing, the clerk of superior court finds that Mary is incompetent and appoints Jane as her general guardian.
Bob comes to you as his attorney and states that he wants to appeal the clerk’s decision. Does he have standing to appeal? Continue Reading