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Divested of Jurisdiction? The Effect of Filing a Notice of Appeal While a
Tolling Motion Under Rule 3 of the North Carolina Rules of Appellate
Procedure is Pending Before the Trial Court
What happens when you have a judgment from the trial court, and have filed one
of the three tolling motions under Rule 3 of the North Carolina Rules of Appellate
Procedure? If you file a notice of appeal before the trial court rules on your tolling
motion, the trial court may be divested of jurisdiction over your tolling motion and your
appeal may be dismissed by the appellate court as untimely. In order to avoid falling
into this trap, would-be appellants must tread carefully when trying to take advantage of
the tolling provisions in Rule 3.
INTRODUCTION
Under the North Carolina Rules of Appellate Procedure, a would-be appellant has
thirty days after the entry of judgment or the entry of an order by the trial court to file a
notice of appeal.1 However, certain post-trial motions will toll this thirty-day period until
the trial court makes a ruling on these post-trial “tolling motions.” This allows the
would-be appellant thirty days after the resolution of the tolling motion to file a timely
notice of appeal.2 A proper motion made pursuant to Rule 50(b) of the North Carolina
Rules of Civil Procedure for Judgment Notwithstanding the Verdict, 3 Rule 52(b) for
Amendment of the Judgment,4 or Rule 59 for a New Trial tolls this thirty-day time period
for filing a notice of appeal until the trial court rules on the motion.5
Problems arise when one of these tolling motions is pending in the trial court and
the would-be appellant then files a notice of appeal before the trial court has ruled on the
motion. Generally, filing a notice of appeal divests the trial court of jurisdiction. 6
Throughout the pendency of the appeal, the trial court has a very limited role—merely
that of “functus officio.”7 Filing a notice of appeal while a tolling motion is pending
before the trial court may not necessarily change the general functus officio rule of the
trial court’s jurisdiction over the tolling motion in every situation. Whether the trial court
is divested of jurisdiction over the tolling motion by the filing of a subsequent notice of
appeal depends on which one of the three tolling motions is pending before the trial court.
The North Carolina Court of Appeals has found that a notice of appeal filed after a Rule
59 motion divests the trial court of jurisdiction over the pending Rule 59 motion.8 If a
Rule 52(b) motion is pending before the trial court, however, the trial court retains
jurisdiction to consider that motion even after the notice of appeal is filed.9 Although the
case law is unclear, this Comment argues that the trial court would be divested of
1
N.C. R. APP. P. 3(c)(1).
N.C. R. APP. P. 3(c)(3).
3
N.C. R. CIV. P. 50(b).
4
N.C. R. CIV. P. 52(b).
5
N.C. R. CIV. P. 59; N.C. R. APP. P. 3(c)(3).
6
Wiggins v. Bunch, 184 S.E.2d 879, 880 (N.C. 1971).
7
Bowen v. Hodge Motor Co., 234 S.E.2d 748, 749 (N.C. 1977).
8
Lovallo v. Sabato, 715 S.E.2d 909, 912 (N.C. Ct. App. 2011).
9
Id.
2
1
jurisdiction over a pending Rule 50(b) motion as well, when a notice of appeal is
subsequently filed.
Part I of this Comment will discuss the procedures for filing a notice of appeal.
Part II will explain the general rule regarding divestiture of jurisdiction. Part III will
explain common post-trial actions that fail to toll the time period for filing a notice of
appeal. Part IV will discuss the effect of filing a notice of appeal while a tolling motion
under Rule 3(c) of the North Carolina Rules of Appellate Procedure is pending before the
trial court. And finally, this Comment concludes with recommendations for would-be
appellants who are attempting to take advantage of the tolling provision in Rule 3(c), to
help them avoid dismissal of their appeals as untimely.
I. PROCEDURES FOR FILING A NOTICE OF APPEAL
A. Timeliness of a Notice of Appeal
Rule 3 of the North Carolina Rules of Appellate Procedure governs the
procedures for filing a notice of appeal in a civil case.10 A notice of appeal must be filed
within thirty days after the entry of a judgment or an order by the trial court. 11 If the
party was properly served with a copy of the judgment or order within three days of its
entry as provided for in Rule 58 of the North Carolina Rules of Civil Procedure, the
notice of appeal must be filed within thirty days of the date of entry itself. 12 But if
service was not perfected within that three-day period, the notice of appeal must instead
be filed within thirty days of the date of actual service of the judgment or order upon the
party.13 When assessing whether a notice of appeal is timely, there is no provision for
additional time for service of the notice of appeal by mail.14
1. The Distinction Between “Rendering Judgment” and “Entry of Judgment”
Rule 58 of the North Carolina Rules of Civil Procedure governs the entry of
judgment in civil cases and provides that “a judgment is entered when it is reduced to
writing, signed by the judge, and filed with the clerk of court.”15 Being able to precisely
10
N.C. R. APP. P. 3.
N.C. R. APP. P. 3(c) . Rule 58 of the North Carolina Rule of Civil Procedure governs the process for proper entry of
judgment. N.C.R. CIV. P. 58. Although the text of Rule 58 only refers expressly to judgments, North Carolina courts
have held that Rule 58 also applies to orders as well. West v. Marko, 504 S.E.2d 571, 574 (N.C. Ct. App. 1998) (citing
Onslow Cnty. v. Moore, 499 S.E.2d 780, 788 (N.C. Ct. App. 1998)); see Abels v. Renfro Corp., 486 S.E.2d 735, 737
(N.C. Ct. App. 1997)).
12
N.C. R. APP. P. 3(c)(1); N.C.R. CIV. P. 58 (“The party designated by the judge or, if the judge does not otherwise
designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three
days after the judgment is entered.”).
13
N.C. R. APP. P. 3(c)(2).
14
N.C. R. APP. P. 3(c)(3). See N.C. R. CIV. P. 27(b); N.C. R. CIV. P. 6(e). When assessing whether a notice of appeal is
timely, however, the court must consider whether the thirtieth day falls on a Saturday, Sunday, or a legal post office
holiday. Hardy v. Floyd, 320 S.E.2d 320, 321 (N.C. Ct. App. 1984). If the thirtieth day would fall on a Saturday,
Sunday, or a legal post office holiday, the thirty-day time period for filing a notice of appeal will be deemed to end on
the next day that is not a Saturday, Sunday, or a legal post office holiday. Id. For example, in Hardy, the notice of
appeal was timely when filed on July 5, 1983. The time period for filing the notice of appeal ended on July 3, 1983, a
Sunday, and the following Monday was a legal post office holiday. Thus, the notice of appeal filed on July 5 was
timely and the trial court erred in dismissing the appeal as untimely. Id.
15
N.C. R. CIV. P. 58.
11
2
identify the moment when the entry of judgment occurred is critical, since that moment
triggers the thirty-day time period during which a notice of appeal must be filed.16 Rule
58 has a two-fold purpose: (1) to help all parties easily identify the moment that the entry
of judgment occurs; and (2) to ensure that all parties have fair notice of the entry of
judgment.17
The distinction between “rendering judgment” and “entry of judgment” continues
to create uncertainty when determining the date that triggers the thirty-day time period to
file a notice of appeal. A judgment is rendered when it is simply announced in open
court.18 Under an earlier version of the North Carolina Rules of Appellate Procedure,
rendering a judgment triggered a time period during which either oral or written notice of
appeal could be given, while the entry of judgment triggered the period during which
written notice of appeal must be given. 19 The North Carolina Rules of Appellate
Procedure no longer allow for oral notice of appeal in civil proceedings, but the
distinction between rendering and entry of judgment nonetheless remains today.20
This distinction has continued importance today because the North Carolina Court
of Appeals has held that rendering a judgment “commences the time when notice of
appeal may be taken by filing and serving written notice.” 21 In comparison, entry of
judgment triggers the thirty-day time period during which “notice of appeal must be filed
and served.”22 The North Carolina Court of Appeals dealt with a notice of appeal that
was filed after a judgment was rendered but before it was entered in Abels v. Renfro
Corporation. 23 After the trial court entered a judgment in favor of the defendant on
October 10, 1995, the plaintiff filed a motion for judgment notwithstanding the verdict
(“JNOV”), or in the alternative, a motion to set aside the judgment on October 12, 1995
(“plaintiff’s motion”).24 The trial court denied the plaintiff’s motion and requested that
the plaintiff’s attorney prepare an order reflecting this denial at a hearing on November
22, 1995.25 The plaintiff filed a written notice of appeal on November 30, 1995, and the
order, prepared by the plaintiff’s attorney, was signed by the trial court on December 5,
1995, and filed with the clerk of court on December 8, 1995.26 The North Carolina Court
of Appeals found that entry of the order took place on December 8, 1995, after it was
filed with the clerk of court.27
Plaintiff’s motion for JNOV tolled the thirty-day time period for filing a notice of
appeal for the judgment entered on October 10, 1995 under Rule 3(c)(1).28 Once the trial
court denied plaintiff’s motion for JNOV on November 22, 1995, plaintiff was entitled to
16
See N.C. R. APP. P. 3(c).
In re Estate of Peebles, 454 S.E.2d 854, 856 (N.C. Ct. App. 1995) (quoting Rivers v. Rivers, 223 S.E.2d 568, 569
(N.C. Ct. App. 1976)).
18
Abels v. Renfro Corp., 486 S.E.2d 735, 737 (N.C. Ct. App. 1997) (citing Kirby Bldg. Sys. v. McNeil, 393 S.E.2d
827, 830 (N.C. 1990)) (emphasis added).
19
Id. (citing Stachlowski v. Stach, 401 S.E.2d 638, 640 (N.C. 1991)) (emphasis added).
20
Id. (citing Currin-Dillehay Bldg. Supply v. Frazier, 394 S.E.2d. 683, 683 (N.C. Ct. App. 1990)).
21
Id. at 738 (citing N.C. R. APP. P. 3(a)); see also Searles v. Searles, 398 S.E.2d 55, 56 (N.C. Ct. App. 1990)).
22
Abels, 486 S.E.2d. at738 (citing N.C. R. APP. P. 3(c)).
23
Id. at 737.
24
Id.
25
Id.
26
Id.
27
Id. at 738.
28
Id.
17
3
file the notice of appeal.29 The plaintiff was not required to file the notice of appeal until
thirty days after December 8, 1995, when the order denying the plaintiff’s motion for
JNOV was entered and the full thirty-day time limit for filing the notice of appeal was
triggered.30 Despite the fact that the plaintiff filed the notice of appeal before the order
denying the motion for JNOV was entered and, likewise, before the thirty-day time
period began to run, the court found that the notice of appeal was timely.31
Jurisdiction would not have vested with the North Carolina Court of Appeals,
however, if the order appealed from had not been subsequently properly entered.32 If a
notice of appeal is filed from an order or from a judgment that has been rendered but not
entered, jurisdiction does not vest with the appellate court until an order or judgment in
“substantial compliance” with the order or judgment rendered is actually entered.33 In
this case, the record reflects that an order in substantial compliance with the order
rendered on November 22, 1995 was entered on December 8, 1995, so jurisdiction did
properly vest in the Court of Appeals.34
After Abels, North Carolina appellate courts have continued to find that notices of
appeal filed between the rendering of a judgment or order and the subsequent entry of
that judgment or order are timely.35
2. Actual Notice of Appeal Triggers the Thirty-day Time Period for Filing a
Notice of Appeal
When the party seeking appeal receives actual notice of the entry and content of a
judgment, the portion of Rule 3(c) stating that actual service of the judgment on the party
triggers the thirty-day time period for filing a notice of appeal does not apply.36 Actual
notice of a judgment is a substitute for service of that judgment, and the actual notice
triggers the thirty-day time period to file a notice of appeal under Rule 3(c).37 A good
example of this principle is the decision of the North Carolina Court of Appeals in
Manone v. Coffee. In Manone, the trial court issued a custody order to resolve a child
custody dispute on August 16, 2010.38 On August 19, 2010, a staff member from the
defense attorney’s office picked up that custody order from the courthouse. 39 The
defense attorney mailed a copy of the custody order to the plaintiff and filed a certificate
of service on August 20, 2010.40 The defendant filed a notice of appeal on September 20,
2010, and the trial court dismissed the defendant’s appeal as untimely, since it ruled the
29
Id. (emphasis added).
Id. (emphasis added).
31
Id.
32
Id.
33
Id. (citing Worsham v. Richbourg’s Sales & Rentals, 478 S.E.2d 649, 650 (N.C. Ct. App. 1996)).
34
Id.; but see Mastin v. Griffith, 515 S.E.2d 494, 495 (N.C. Ct. App. 1999) (dismissing a timely appeal for lack of
jurisdiction because the notice of appeal was filed after the order was rendered, but the order was never subsequently
entered—it was never signed by the trial court nor was it filed with the clerk of court).
35
Harbin Yinhai Tech. Dev. Co. v. Greentree Fin. Grp., Inc., 677 S.E.2d 854, 858 (N.C. Ct. App. 2009) (finding that a
written notice of appeal explaining that the order appealed from had been rendered orally and would soon be entered
was timely); Merrick v. Peterson, 548 S.E.2d 171, 174 (N.C. Ct. App. 2001) (finding that a written notice of appeal was
timely when filed merely hours before entry of judgment).
36
N.C. R. APP. P. 3(c); Manone v. Coffee, 720 S.E.2d 781, 784 (N.C. Ct. App. 2011).
37
720 S.E.2d at 784 (emphasis added).
38
Id. at 782.
39
Id.
40
Id.
30
4
defendant had actual notice of the content of the custody order on August 19th.41 The
trial court found that the defendant erred in thinking that the thirty-day time period for
filing a notice of appeal was triggered on August 20th when service of the order took
place.42
The North Carolina Court of Appeals agreed with the trial court, and found that
the defendant had actual notice of the custody order on August 19, 2010, when a staff
member from the defense attorney’s office retrieved the custody order from the
courthouse.43 The facts of this case are unique in that the record did not reflect which
party was required to serve a copy of the judgment on the other party under Rule 58.44
Here, the defendant is both the party seeking the appeal and the party who complied with
the service requirement of Rule 58 by retrieving the custody order from the courthouse
and serving a copy of the order on the plaintiff.45 Nonetheless, the court found that the
actual notice of the custody order “essentially substitute[d] for the service requirements”
of Rule 3(c) because the defendant had fair notice both of the order and its contents.46
The defendant was found to have actual notice on August 19th, 2010, even though
it was merely a staff member and not the defendant’s own attorney who retrieved the
custody order from the courthouse.47 The defendant’s attorney claimed that she did not
even receive the order from the staff member until August 20, 2010. 48 The North
Carolina Court of Appeals followed its own precedent, however, in holding that “notice
is effective when the attorney’s office, not the individual attorney, receives an order or
judgment.”49
Since the defendant received actual notice of the custody order on August 19,
2010, within three days of the date of entry of the order under Rule 3(c)(1), the defendant
was required to file a notice of appeal within thirty days of the date the order was
entered—August 16th, and not August 20th. 50 Had the defendant filed the notice of
appeal by September 15, 2010, the notice would have been timely.51 Since the notice of
appeal was not filed until September 20, 2010, however, the appeal was not timely and
the North Carolina Court of Appeals found that the trial court acted properly in
dismissing the appeal.52
B. Procedures for Filing and Required Content of a Notice of Appeal
The party seeking an appeal must file the notice of appeal with the clerk of
superior court and serve it upon all other parties within the thirty-day time period as
discussed above.53 Only an aggrieved party “may appeal from an order or judgment of
41
Id.
Id.
43
Id.
44
Id. at 784.
45
Id.
46
Id.
47
Id.
48
Id.
49
Id. (citing Cornell v. Weston and S. Life Ins. Co., 590 S.E.2d 294, 298 (N.C. Ct. App. 2004)) (emphasis added).
50
Id.
51
Id.
52
Id.
53
N.C. R. APP. P. 3(a). Rule 3(e) provides that service of process may be made pursuant to Rule 26 of the North
Carolina Rules of Civil Procedure.
42
5
the trial division.”54 “An aggrieved party is one whose rights have been directly and
injuriously affected by the action of the court.”55 A proper notice of appeal must identify
the party seeking the appeal, must identify both the judgment or order being appealed
from and the court to which the appeal is taken, and must be signed by the attorneys for
the party seeking the appeal.56 Any party seeking an appeal who is not represented by
counsel should sign the notice of appeal personally. 57
It is critical that the party who is seeking appeal file the notice of appeal with the
clerk of superior court, and not with the appellate court to which the appeal is being
taken. If a party files a notice of appeal with the appellate court and not with the clerk of
superior court as required by Rule 3(a), the appellate court will not have jurisdiction over
the appeal.58 Indeed, the North Carolina Court of Appeals dismissed a cross appeal due
to lack of jurisdiction in Reidy v. Whitehart Association for this very reason.59 In Reidy,
the trial court granted summary judgment in favor of a homeowners’ association that had
fined a homeowner for an unapproved construction project.60 The homeowner properly
filed a notice of appeal from the trial court’s grant of summary judgment in favor of the
homeowners’ association with the Clerk of Superior Court of Wake County, and that
appeal was properly before the North Carolina Court of Appeals.61 The homeowners’
association attempted to cross appeal “the failure of the trial court to award reasonable
attorneys’ fees” in its favor.62 The homeowners’ association failed, however, to file the
cross notice of appeal with the Clerk of Superior Court of Wake County, as required by
Rule 3(a).63 Instead, the homeowners’ association filed the cross notice of appeal with
the Clerk of the North Carolina Court of Appeals. 64 Even though the homeowners’
association claimed that a cross notice of appeal had properly been filed with the Clerk of
Superior Court of Wake County, there was no cross notice of appeal in the record that
had been properly filed in that manner.65 The North Carolina Court of Appeals found
that no proper notice of appeal had been filed to vest it with jurisdiction over the cross
appeal, and as such, dismissed the homeowners’ association’s cross appeal for lack of
jurisdiction.66
1. Preserving Issues for Appellate Review
Would-be appellants must ensure that they file a notice of appeal that references
all of the actions by the trial court that they wish to preserve for appellate review.
Frequently, would-be appellants fail to include all of the actions by the trial court in their
54
Culton v. Culton, 398 S.E.2d 323, 324 (N.C. 1990) (citing N.C. GEN STAT. §1-271 (1983), superseded by statute on
other grounds as recognized in In re J.A.A., 623 S.E.2d 45, 49 (N.C. Ct. App. 2005).
55
Id. at 324–25 (emphasis added) (finding that the party seeking appeal did not have any rights that were affected by
the trial court’s order and as such, he was not an aggrieved party able to seek an appeal).
56
N.C. R. APP. P. 3(d).
57
Id.
58
Reidy v. Whitehart Ass’n, 648 S.E.2d 265, 272 (N.C. Ct. App. 2007).
59
Id.
60
Id. at 268.
61
Id.
62
Id.
63
Id. at 272.
64
Id.
65
Id.
66
Id.
6
notice of appeal, leaving the appellate courts without jurisdiction over the entire case.
The North Carolina Court of Appeals examined this issue recently in Mason v. Dwinnell,
which involved an appeal from a custody order issued by the trial court, to resolve a child
custody dispute.67 In Mason, the trial court entered a permanent custody order on June 1,
2006, granting both parties “permanent joint legal and physical custody of the child.”68
Dwinnell filed a notice of appeal from the June 1st order on June 21, 2006.69 The trial
court entered an order amending the June 1, 2006 order on July 24, 2006.70 The North
Carolina Court of Appeals noted that “the record on appeal contain[ed] no notice of
appeal from the July 24th order. The sole notice of appeal included in the record on
appeal reference[d] only the June 1, 2006 order.”71 Thus, “since the notice of appeal was
filed prior to the entry of the July 24, 2006 order, it could not reference that subsequent
order. Dwinnell was, therefore, required to file another notice of appeal regarding that
order.” 72 In this case, the consequences were not incredibly dire, since the amended
order was not vastly different from the original order from which the notice of appeal was
filed. Not all would-be appellants are quite as fortunate; often the action of the trial court
that was not included in the notice of appeal, and thus unreviewable by the appellate
court, has serious consequences for the party seeking the appeal.73
C. Rule 3’s Requirements are Jurisdictional
The requirements set forth in Rule 3 are critically important because they are
jurisdictional.74 Failing to comply with them will fail to vest jurisdiction over the appeal
in the appellate court and will result in dismissal of the appeal. 75 The North Carolina
Court of Appeals dismissed an appeal due to non-compliance with the requirements for
filing a notice of appeal as stated in Rule 3 in Currin-Dillehay Building Supply, Inc. v.
67
Mason v. Dwinnell, 660 S.E.2d 58, 62–63 (N.C. Ct. App. 2008).
Id. at 62.
69
Id.
70
Id. (amending the June 1, 2006 order to correct “a clerical error in the facts and conclusions”).
71
Id.
72
Id. at 62–63. See also In re Hudson, 600 S.E.2d 25, 28 (N.C. Ct. App. 2004) (holding that a notice of appeal that
failed to reference an order imposing sanctions under Rule 11 failed to vest jurisdiction in the appellate court to
consider that order); Finley Forest Condo Ass’n v. Perry, 594 S.E.2d 227, 231 (N.C. Ct. App. 2004) (holding that even
though the plaintiff filed a notice of appeal that referenced the underlying judgment issued by the trial court, the
plaintiff “failed to file [a] notice of appeal from the trial court’s order permitting costs to be taxed against plaintiff;
therefore this Court is without jurisdiction to consider [that] issue”); Chee v. Estes, 451 S.E.2d 349, 351 (N.C. Ct. App.
1994) (“Plaintiffs’ notice of appeal indicates that an appeal was being taken from the judgment entered in accordance
with the verdict and it cannot be fairly inferred from the notice that plaintiffs intended as well to appeal the denial of
their motion for a new trial.”).
73
See e.g., Blyth v. McCrary, 646 S.E.2d 813, 817 (N.C. Ct. App. 2007) (dismissing an assignment of error of the trial
court’s grant of summary judgment in favor of two defendants on unfair and deceptive trade practices claims because
“the record contain[ed] no notice of appeal which designates those orders”); In re Estate of Rand, 645 S.E.2d 174, 176
(N.C. Ct. App. 2007) (dismissing an assignment of error because the would-be appellant failed to file a notice of appeal
from the trial court’s earlier order dismissing a previous appeal); Boger v. Gatton, 473 S.E.2d 672, 675 (N.C. Ct. App.
1996) (determining that the North Carolina Court of Appeals only had jurisdiction to consider the trial court’s denial of
a motion for judgment notwithstanding the verdict (JNOV) when the defendant’s notice of appeal only designated the
order denying her motion for JNOV and not the underlying judgment itself).
74
Currin-Dillehay Bldg. Supply, Inc. v. Frazier, 394 S.E.2d 683, 683 (N.C. Ct. App. 1990) (quoting Giannitrapani v.
Duke Univ., 228 S.E.2d 46 (N.C. Ct. App. 1976)).
75
Mason v. Dwinnell, 660 S.E.2d 58, 63 (N.C. Ct. App. 2008) (“Without proper notice of appeal, the appellate court
acquires no jurisdiction and neither the court nor the parties may waive the jurisdictional requirements.” (quoting
Bromhal v. Stott, 447 S.E.2d 481, 483 (N.C. Ct. App. 1994))).
68
7
Frazier. 76 The parties were involved in a contract dispute over the cost of certain
building materials, and the trial court entered a judgment in favor of the plaintiffs on
September 14, 1989.77 The defendants gave oral notice of appeal in open court on the
same date.78 The North Carolina Court of Appeals found that the oral notice of appeal
was improper, and was insufficient to vest jurisdiction over the case in the appellate
court.79 The court stated:
Prior to 1 July 1989, notice of appeal in civil actions could be
given either in writing or orally in open court. Appellate Rule 3(a),
however, was amended on 8 December 1988 to provide that an appeal in a
civil action is taken, effective for all judgments entered on or after 1 July
1989, by filing notice of appeal with the clerk of superior court and
serving copies thereof upon all other parties. This, defendants have not
done.80
Since the North Carolina Court of Appeals was without jurisdiction over the defendant’s
appeal, it had no choice but to dismiss the appeal.81
1. The Requirements of Rule 3 Cannot Be Waived or Stipulated to by the Parties
Parties cannot stipulate that the requirements of Rule 3 have been met if this is not
actually the case.82 The parties in Von Ramm v. Von Ramm tried to do exactly that.83
The defendant in that case appealed from an order issued by the trial court on January 30,
1989 “denying defendant’s motion to set aside a 17 June 1988 judgment relating to child
support payments.”84 The defendant filed a notice of appeal on February 3, 1989.85 The
parties stipulated in the settled record on appeal that “[n]otice of Appeal from the
judgments [of June 1988 and January 1989 ] was given in a timely fashion.”86 After the
record on appeal was filed and docketed with the North Carolina Court of Appeals, the
“plaintiff moved [the North Carolina Court of Appeals] to dismiss defendant’s purported
appeal from the June 17, 1988 judgment, asserting that defendant had appealed only from
the January 30, 1989 judgment denying defendant’s Rule 59 motion.”87 In response to
the plaintiff’s motion to dismiss defendant’s appeal from the June 17, 1988 judgment, the
defendant argued that “the parties’ stipulation that notice of appeal from the ‘judgments’
was ‘timely and proper’ gives this court jurisdiction to review the June 1988 order.”88
76
Currin-Dillehay, 394 S.E.2d at 683.
Id.
78
Id.
79
Id.
80
Id.
81
Id.
82
Von Ramm v. Von Ramm, 392 S.E.2d 422, 425 (N.C. Ct. App. 1990).
83
Id. at 424.
84
Id. at 423.
85
Id. at 424.
86
Id.
87
Id.
88
Id. at 425.
77
8
The North Carolina Court of Appeals was not persuaded by the alleged stipulation
of the parties.89 The court stated that the requirements of Rule 3 are jurisdictional,90 and
that jurisdiction “‘cannot be conferred by consent, waiver or estoppel…[j]urisdiction
rests upon the law and the law alone.’ It is never dependent on the conduct of the
parties.”91 The court found that the stipulation of the parties in the settled record on
appeal was insufficient to vest it with jurisdiction to review the June 1988 order, since the
defendant did not reference the June 1988 order in his notice of appeal. 92 The North
Carolina Court of Appeals stated that even “assum[ing] arguendo that the parties’
stipulation encompasses the 1988 order, the stipulation cannot supplant the Rule 3
designation requirements of our appellate law.”93 The attempt by the party seeking the
appeal to sidestep the requirements for filing a notice of appeal as laid out in Rule 3 were
ultimately unsuccessful.
2. Courts May Not Extend the Time for Filing a Notice for Appeal
Rule 27 of the North Carolina Rules of Appellate Procedure governs the
procedures to compute the amount of time given to take certain actions under the
Appellate Rules, as well as procedures for seeking additional time under the Appellate
Rules.94 Specifically, Rule 27(c) states the procedures for seeking extensions of time,
and provides that:
Except as herein provided, courts for good cause shown may upon motion
extend any of the times prescribed by these rules or by order of court for
doing any act required or allowed under these rules, or may permit an act
to be done after the expiration of such time. Courts may not extend the
time for taking an appeal or for filing a petition for discretionary review or
a petition for rehearing or the responses thereto prescribed by these rules
or by law.95
The North Carolina Court of Appeals discussed this rule in Copper ex rel. Copper v.
Denlinger, and stated that “in contrast to the filing of the record on appeal, the deadline
for filing a notice of appeal in a civil case under Rule 3 cannot be extended by any North
Carolina court as the rule is jurisdictional.”96
The North Carolina Court of Appeals in Copper also discussed the application of
Rule 2 of the North Carolina Rules of Appellate Procedure to a default in filing a notice
of appeal.97 The court stated that “[r]ule 2 may not be invoked to save an appeal where
89
Id.
Id. (citing Brooks, Comm’r of Labor v. Gooden, 318 S.E.2d 348, 352 (N.C. Ct. App. 1984)).
91
Id. (alteration in original) (emphasis added) (quoting Feldman v. Feldman, 73 S.E.2d 865, 867 (N.C. 1953) (citing
McRary v. McRary, 47 S.E.2d 27 (N.C. 1948))).
92
Id.
93
Id.
94
N.C. R. APP. P. 27.
95
N.C. R. APP. P. 27(c) (emphasis added).
96
Copper ex rel. Copper v. Denlinger, 667 S.E.2d 470, 479 (N.C. Ct. App. 2008), reversed in part on other grounds by
Copper ex rel. Copper v. Denlinger, 688 S.E.2d 426 (N.C. 2010).
97
Copper, 667 S.E.2d at 479. Rule 2 provides that:
90
9
an appellant had defaulted” in filing a notice of appeal. 98 The court also emphasized that
the drafting committee for Rule 2 included in their notes that the phrase “except as
otherwise expressly provided in these rules” 99 referred to the provision in Rule 27(c)
stating that courts did not have the power to extend the time period for filing a notice of
appeal.100 So, when an appellant has failed to properly file a notice of appeal as required
by Rule 3, North Carolina appellate courts do not have the power to invoke Rule 2 to
save that appeal.101
II. DIVESTITURE OF JURISDICTION GENERALLY
Generally, filing a notice of appeal takes a case out of the trial court’s
jurisdiction. 102 Throughout the pendency of the appeal, the trial court is “functus
officio.”103 The Supreme Court of North Carolina has recognized that this general rule
regarding divestiture of jurisdiction is “subject to two exceptions and one
qualification.”104 The recognized exceptions are that while the appeal is pending the trial
court judge still has jurisdiction over the case “(1) during the session in which the
judgment appealed from was rendered and (2) for the purpose of settling the case on
appeal.”105 The qualification is that “‘the trial judge, after notice and on proper showing,
may adjudge the appeal has been abandoned’ and thereby regain jurisdiction of the
cause.”106 The Supreme Court of North Carolina found in American Floor v. Dixon that
the notice of appeal divested the trial court of jurisdiction over the case, and “removed
the case to the Superior Court for all purposes except the certification of a correct
record.”107
A. Trial Courts are Divested of Jurisdiction When Notices of Appeal and Post-Trial
Motions are Filed Contemporaneously
To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of
the appellate division may, except as otherwise expressly provided by these rules, suspend or vary
the requirements or provisions of any of these rules in a case pending before it upon application of
a party or upon its own initiative, and may order proceedings in accordance with its directions.
N.C. R. APP. P. 2.
98
Copper, 667 S.E.2d at 479 (citing Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 657 S.E.2d 361, 365
(N.C. 2008)).
99
N.C. R. APP. P. 2.
100
Copper, 667 S.E.2d at 479 (citing Drafting Committee Note to N.C. R. App. P. 2).
101
But see Anderson v. Hollifield, 480 S.E.2d 661, 663 (N.C. Ct. App. 1997) (“Construing [Rule 3(a), Rule 27(c) and
Rule 21(a)(1)] together, we conclude that Rule 21(a)(1) gives an appellate court the authority to review the merits of an
appeal by certiorari even if the party has failed to file notice of appeal in a timely manner.”) (emphasis added). See
N.C. R. CIV. P. 21(a)(1) (governing the Writ of Certiorari process).
102
Wiggins v. Bunch, 184 S.E.2d 879, 880 (N.C. 1971).
103
Bowen v. Hodge Motor Co., 234 S.E.2d 748, 749 (N.C. 1977). Merriam Webster defines functus officio as “of no
further official authority or legal efficacy.” MERRIAM-WEBSTER, http://www.merriamwebster.com/dictionary/functus%20officio (last visited Mar. 11, 2014).
104
Id.
105
Id.
106
Id. (quoting Am. Floor Mach. Co. v. Dixon, 133 S.E.2d 659, 662 (N.C. 1963)).
107
Am. Floor Mach. Co., 133 S.E.2d at 662.
10
Trial courts are also divested of jurisdiction when notices of appeal and post-trial
motions are filed contemporaneously.108 The North Carolina Court of Appeals found in
American Aluminum that “[e]ven where notices of appeal are filed on the same day as the
motion for a new trial, the trial court is without jurisdiction to rule on the motion.”109
B. Perfection of an Appeal Divests the Trial Court of Jurisdiction
Perfection of an appeal is the action that divests the trial court of jurisdiction over
a case, not the filing of the notice of appeal itself.110 An appeal is perfected when it is
docketed in the appropriate appellate court.111 Once an appeal is perfected, it relates back
to the date of filing of the notice of appeal.112 One commentator has stated that “in cases
where the appeal is perfected, it is the notice of appeal that effectively terminates the trial
court’s jurisdiction.”113
III. ACTIONS THAT FAIL TO TOLL THE TIME PERIOD FOR FILING A NOTICE OF APPEAL
A. Tolling Provisions are Not Applicable if the Motion is Filed Before the Entry of
Judgment
A tolling motion under Rule 3 will not toll the time period for filing a notice of
appeal when the motion is filed before the entry of judgment. 114 The tolling motions
listed in Rule 3 are timely if filed no later than ten days after the entry of judgment.115
These motions also cannot be filed before the entry of judgment takes place. 116 The
Court of Appeals held that a tolling motion filed before the entry of judgment failed to
toll the time period for filing a notice of appeal in Stevens v. Guzman, and found that the
would-be appellant’s notice of appeal was untimely.117 The Stevens plaintiff filed her
Rule 59 motion before the entry of judgment occurred, so she was not able to take
advantage of the tolling provision provided by Rule 3.118 The entry of judgment occurred
on March 5, 1999, and she filed a notice of appeal on June 11, 1999.119 Her written
notice of appeal was thus filed well outside of the thirty-day period since no tolling
provision applied, and was dismissed as untimely.120
The Stevens plaintiff also made oral motions for judgment notwithstanding the
verdict and in the alternative, for a new trial subsequent to the rendering of judgment on
108
Am. Aluminum Prods., Inc. v. Pollard, 389 S.E.2d 589, 592 (N.C. Ct. App. 1990) (citing Seafare Corp. v. Trenor
Corp., 363 S.E.2d 643 (N.C. Ct. App. 1988)).
109
Id.
110
Lowder v. All Star Mills, Inc., 273 S.E.2d 247, 258 (N.C. 1981).
111
Thomas L. Fowler, Functus Officio: Authority of the Trial Court After Notice of Appeal, 81 N.C. L. REV. 2331, 2333
n.9 (2003).
112
Id.
113
Id.
114
Stevens v. Guzman, 538 S.E.2d 590, 592 (N.C. Ct. App. 2000).
115
Id. (referring to motions pursuant to Rules 50(b) and Rule 59); see also Diversified Fin. Servs., LLC v. F&F
Excavating & Paving, Inc., No. COA11-292, 2011 N.C. App. LEXIS 2306 at *3 n.2 (N.C. Ct. App. Nov. 1, 2011)
(referring to all three tolling motions listed in Rule 3).
116
Id. (citing Watson v. Dixon, 502 S.E.2d 15, 19 (N.C. Ct. App. 1998)).
117
Id. at 592–93.
118
Id. at 592.
119
Id.
120
Id. at 592–93.
11
the jury’s verdict.121 The court did not consider these motions because they were not
relevant to determining whether the notice of appeal was timely, noting that “the running
of the time period for filing a notice of appeal may only be tolled by the filing of a motion
and not by an oral motion.”122 Would-be appellants should be cautious of filing a posttrial tolling motion under Rule 3(c) before the entry of judgment has taken place in the
trial court, and should also be aware that in order to take advantage of the tolling
provision, the motion must actually be filed and cannot be made orally.
B. The Effect of Dismissing a Pending Tolling Motion
Would-be appellants must also be careful while calculating the time for filing a
notice of appeal when they have filed a tolling motion under Rule 3(c), and then
subsequently withdrawn that motion. The North Carolina Court of Appeals has held that
a withdrawn tolling motion does not toll the thirty-day time period for filing a notice of
appeal.123 When the motion was withdrawn, the notice of appeal still had to be filed from
the date of the entry of the judgment by the trial court.124 The court stated that the “time
limit to give notice of appeal under Rule 3(c) would not be tolled because there was never
a judicial determination on defendants’ motion.”125 “The key term of art used in Rule
3(c) is ‘entry’” – which contemplates a “judicial determination” of the motion in order for
the tolling provision to have effect.126 The North Carolina Court of Appeals held that the
defendants were unable to take advantage of Rule 3(c)’s tolling provisions because “[t]o
hold otherwise would thwart the tolling provision of Rule 3(c), N.C. Rules App. P. and
circumvent Rule 58, N.C. Rules Civ. P. to wit: to give all interested parties a definite
fixed time of a judicial determination they can point to as the time of entry of
judgment.”127 Thus, a party cannot file a tolling motion and then withdraw it and still
hope to take advantage of the full amount of time to file a notice of appeal. This would
be in circumvention of the purpose of the appellate rules.
This same situation has an opposite result for the non-moving party.128 The North
Carolina Court of Appeals has held that the non-moving party can take advantage of the
full time to file a notice of appeal when the moving party files a tolling motion and
subsequently withdraws it before a judicial determination on that motion by the trial
court.129 When determining whether a notice of appeal was timely after a tolling motion
has been withdrawn, the court must consider which party withdrew the tolling motion and
which party filed the notice of appeal.
C. A Motion for Attorney’s Fees Will Not Toll the Time Period for Filing a Notice of
Appeal
121
Id. at 592 n.4.
Id. (citing N.C. R. APP. P. 3(c) ).
123
Landin Ltd. v. Sharon Luggage, Ltd., 337 S.E.2d 685, 689 (N.C. Ct. App. 1985).
124
Id.
125
Id. at 688.
126
Id.
127
Id. at 689.
128
See Landingham Plumbing & Heating of N.C., Inc., v. Funnell, 403 S.E.2d 604 (N.C. Ct. App. 1991).
129
Id. at 605.
122
12
A post-trial motion for attorney’s fees will not toll the thirty-day time period for
filing a notice of appeal under Rule 3.130 The North Carolina Court of Appeals held in
Rice v. Danas that a post-trial motion for attorney’s fees is a “separate proceeding,” one
which does not toll the thirty-day time period during which a would-be appellant must
file a notice of appeal.131 The plaintiff in Rice argued that “she did not have to appeal
from the judgment on the verdict until all claims arising from the action, including posttrial motions, were determined.”132 The North Carolina Court of Appeals, however, did
not find this argument persuasive and found that the motion for attorney’s fees was a
“separate proceeding” and that the notice of appeal must have been filed within thirty
days of the judgment itself.133 Motions for attorney’s fees “can be considered several
years after the entry of a judgment,” and the time for filing a notice of appeal is not
triggered by a ruling on the separate motion for attorney’s fees. 134 The time for filing a
notice of appeal is triggered by the entry of the underlying judgment.135
D. Bare-Bones, Insufficient Post-Trial Motions Will Not Toll the Time for Filing a Notice
of Appeal
An improper Rule 59 motion also fails to toll the thirty-day time period for filing
a notice of appeal. 136 In the unpublished opinion of Diversified Financial v. F&F
Excavating and Paving, the North Carolina Court of Appeals found that the defendants’
Rule 59 motion failed to include one of the nine enumerated grounds under that rule for
which a new trial may be granted.137 Instead, the defendants asked for a change in the
existing law, which is not one of the enumerated grounds for a new trial under Rule 59.138
The court found that the motion was not a proper Rule 59 motion and as such, it did not
toll the thirty-day period for filing a notice of appeal.139 The defendants had relied on the
tolling provision and their Rule 59 motion when calculating the time to file their notice of
appeal, and the court ultimately dismissed their appeal as untimely due to the
insufficiency of their Rule 59 motion. 140 Bare-bones, insufficient post-trial motions
which do not comply with the requirements of the underlying tolling motion will not toll
the time period for filing a notice of appeal, and can be a trap for would-be appellants.
Would-be appellants who are hoping to take advantage of the tolling provisions in Rule
3(c) must make sure that they are carefully abiding by the rules governing the underlying
tolling motions. When a notice of appeal is filed based on a tolling motion, it will be
dismissed as untimely if the underlying tolling motion is later found to be improper or
insufficient by the appellate court.
130
Rice v. Danas, Inc., 514 S.E.2d 97, 102 (N.C. Ct. App. 1999).
Id.
132
Id. (emphasis added).
133
Id.
134
Id.
135
Id.
136
Diversified Fin. Servs., LLC v. F&F Excavating & Paving, Inc., No. COA11-292, 2011 N.C. App. LEXIS 2306 at
*4 (N.C. Ct. App. Nov. 1, 2011).
137
Id. at *3–4; see N.C. R. CIV. P. 59(a) (enumerating the grounds for which a new trial may be granted).
138
Diversified Fin. Servs., No. COA11-292, 2011 N.C. App. LEXIS 2306 at *4.
139
Id.
140
Id. at *4–5.
131
13
IV. THE EFFECT OF A SUBSEQUENT NOTICE OF APPEAL ON PENDING TOLLING MOTIONS
Filing a notice of appeal when a Rule 59 motion is pending before the trial court
divests the trial court of jurisdiction to hear and rule on the rule 59 motion. 141 Filing a
notice of appeal while a Rule 52(b) motion is pending before the trial court, however,
does not divest the trial court of jurisdiction over that motion.142 The case law is unclear
as to whether the trial court is divested of jurisdiction over a pending motion under Rule
50(b) when a notice of appeal is later filed. The discussion in Parrish v. Cole of the trial
court’s ability to consider and rule on a Rule 52(b) motion to amend findings of fact after
a notice of appeal has already been filed is instructive in this area.143 The court compared
the trial court’s ability to consider the Rule 52(b) motion with the trial judge’s ability to
render a judgment in open court prior to entering it.144 The court stated that:
In the present case, allowing the 52(b) motion and the resulting
amendment to the order is reasonable. The original findings of fact were
deficient in that they did not set forth the needs of the children, the earning
capacity of the defendant, or establish a basis for awarding attorney’s fees.
If the amendment to the order were not allowed, the case would have to be
remanded for further findings, thus opening the door to additional
appeals. Allowing a 52(b) motion in this case gives the plaintiff her
opportunity to reform the findings of fact and does not prejudice the
defendant.145
The North Carolina Court of Appeals found that allowing the trial court to resolve
the 52(b) motion would ultimately not disrupt the appellate process.146 Proper motions
made pursuant to Rule 52(b) must be brought within ten days of the entry of the judgment
or of an order by the trial court.147 And when such a proper motion is made, the time for
filing a notice of appeal does not begin to run until that motion is decided by the trial
court. 148 The court held that the trial court was not barred from ruling on the 52(b)
motion even though a notice of appeal had been filed before the Rule 52(b) motion, and
stated that “[t]his scheme results in a system in which the trial court has jurisdiction to
reform, amend or alter its decision prior to an appeal in order to give the appellate court a
clearer understanding of the trial court’s decision.”149
This reasoning by the court helps to explain why the trial court is divested of
jurisdiction over a pending Rule 59 motion by a later filed notice of appeal. Rule 52(b)
allows parties to move for amendments to findings of fact, or even to make new findings
of fact. 150 Fact-finding is the task of the trial court, and not the appellate courts.
141
Lovallo v. Sabato, 715. S.E.2d 909, 912 (N.C. Ct. App. 2011) (citing Sink v. Easter, 217 S.E.2d 532, 541 (N.C.
1975)).
142
Id. (citing York v. Taylor, 339 S.E.2d 830, 831 (N.C. Ct. App. 1986)).
143
Parrish v. Cole, 248 S.E.2d 878, 880 (N.C. Ct. App. 1978).
144
Id.
145
Id. (emphasis added).
146
Id.
147
Id.
148
Id.
149
Id.
150
N.C. R. CIV. P. 52(b).
14
Allowing the trial court to retain jurisdiction to carry out this task is reasonable. In
contrast, Rule 59 allows parties to move for a new trial or to move for amendment of the
judgment.151 But once a notice of appeal has been filed and the appellate process has
begun, the appellate courts will consider the judgment and perform essentially the same
tasks that the trial court would under a Rule 59 motion. There is no reason for the trial
court to retain jurisdiction over the Rule 59 motion and perform some of the same tasks
that the appellate court is charged with in the appellate process—this would be disruptive
to the appellate process. This is the very fear that the North Carolina Court of Appeals
discussed in Parrish v. Cole.152
Applying this same reasoning, the trial court should be divested of jurisdiction
over a pending motion under Rule 50(b) when a notice of appeal is later filed. Rule 50(b)
allows parties to seek a judgment notwithstanding the verdict.153 This allows a party who
previously moved for a directed verdict at the close of his evidence to move, no later than
ten days after the judgment is entered, to have the verdict set aside if one was entered and
have “judgment entered in accordance with his motion for a directed verdict.” 154 This is
similar to the actions of the trial court in motions under Rule 59 – the trial court judge is
focusing on the judgment itself, and not findings of fact. Allowing the trial court to retain
jurisdiction to rule on a Rule 50(b) motion after a notice of appeal is subsequently filed
would be disruptive to the appellate process, and would again divert some of the tasks
properly before the appellate court to the trial court judge. As such, the trial court should
be divested of jurisdiction over a pending Rule 50(b) motion when a notice of appeal is
subsequently filed.
CONCLUSION
It is imperative that would-be appellants tread carefully when attempting to take
advantage of the tolling provision of Rule 3(c) of the North Carolina Rules of Appellate
Procedure. Although the rule looks to be straightforward, in reality, tolling motions can
set a dangerous trap for would-be appellants. Most importantly, if a party wishes to take
advantage of a tolling motion, he must concentrate on two things. First, the party must
ensure that he files a tolling motion that strictly complies with the underlying
requirements as set out in the North Carolina Rules of Civil Procedure. An insufficient
tolling motion will not toll the time period for filing a notice of appeal, and will likely
cause a notice of appeal to be found untimely if it was filed more than thirty days after
the entry of the underlying judgment or order—leading to dismissal by the appellate
court. Second, the party must carefully consider filing a notice of appeal while a tolling
motion is pending before the trial court. Filing a notice of appeal will divest the trial
court of jurisdiction over a pending Rule 59 motion, and might for a pending Rule 50(b)
motion as well. If the trial court does not have jurisdiction over a motion, it cannot enter
an order deciding the motion—which is what actually triggers the tolling provision in
Rule 3(c). If the notice of appeal is filed outside of the thirty-day window, it will be
dismissed as untimely.
151
N.C. R. CIV. P. 59.
Parrish, 248 S.E.2d at 880.
153
N.C. R. CIV. P. 50(b).
154
Id.
152
15
Ultimately, the tolling provisions of Rule 3(c) are powerful tools for would-be
appellants when filing a notice of appeal. But this is so only if that party treads carefully,
and is aware of the potential traps and pitfalls in this area of appellate practice that could
lead to his appeal being dismissed as untimely.
L. Katie Greene
16