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Tag: Rules of Appellate Procedure
  • Appeal Deadlines and Tolling under Rule 3(c)(2): Don’t Be So Sure!

    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

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