Appellate Jurisdiction

David Lagos Office 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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Original vs. Appellate Jurisdiction

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1 Original vs. Appellate Jurisdiction “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).

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Original vs. Appellate Jurisdiction “[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).

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Original vs. Appellate Jurisdiction 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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2 Original vs. Appellate Jurisdiction “For purposes of G.S. § 1‐294, an appeal isperfectedwhenitisdocketedinthe appellate division. However, for purposes of the stay imposed by G.S. § 1‐294, the proper perfection of an appeal relates backtothetimenoticeofappealwas given.” ‐‐ Reid v. Town of Madison, 145 N.C. App. 146, 550 S.E.2d 826 (2001).

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Original vs. Appellate Jurisdiction “The rule codified by [G.S.] 1‐294 is that once an appeal is perfected, the lower court is divested of jurisdiction. If petitioner’s appeal is proper, any action taken by the trial court during its pendency is void.” ‐‐ Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 444 S.E.2d 252 (1994).

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Original vs. Appellate Jurisdiction “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) Appellate Jurisdiction, 2020 9 9

3 Original vs. Appellate Jurisdiction “[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)

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Original vs. Appellate Jurisdiction “(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).

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Original vs. Appellate Jurisdiction § 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 12

4 Original vs. Appellate Jurisdiction “[Appellate Rule 4] allow[s] a written noticeofappealinacriminalcasetobe filed 14 days after the entry of a judgment. Therefore, under the plain language of § 15A-1448(a)(3), the trial court has jurisdiction until notice of appeal has been given and 14 days have passed.” -- State v. Lebeau, 843 S.E.2d 317 (N.C. Ct. App. 2020). Appellate Jurisdiction, 2020 13 13

The Judicial Power in North Carolina North 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 Courts District Court Division Superior Court Division Appellate Division • Administrative Agencies Creatures of the Executive (Article III) Granted judicial powers as needed to accomplish purpose Appeals from agency decisions lie to the General Court of Justice

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The Judicial Power in North Carolina North Carolina Constitution of 1971, Article IV • General Court of Justice  Established by 1962 amendment to Article IV  A “unified judicial system for purposes of jurisdiction, operation, and administration” by an Administrative Office of the Courts  District Court Division  Superior Court Division  Appellate Division • Administrative Agencies  Creatures of the Executive (Article III)  Granted judicial powers as necessary to accomplish their purpose  Appeals from agency decisions to the General Court of Justice Appellate Jurisdiction, 2020 15 15

5 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 proceedings Exclusive authority to promulgate rules for Appellate Division May promulgate rules for trial divisions if delegated by General Assembly May issue any remedial writs necessary for its supervisory function Court of Appeals • Appellate jurisdiction as prescribed by General Assembly

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Jurisdiction of the Supreme Court N.C. Gen. Stat. Chapter 7A • Original jurisdiction: Claims v. State. • Original jurisdiction: Judicial disciplinary proceedings. • Appellate jurisdiction: Appeals of Right Judgment 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 review Decisions of the Court of Appeals (except G.S. § 7A‐28) By certification prior to decision by COA Appellate Jurisdiction, 2020 17 17

Jurisdiction of the Court of Appeals N.C. Gen. Stat. Chapter 7A • Appellate jurisdiction: Appeals of right Superior 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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6 Jurisdiction of the Court of Appeals N.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 right b. In effect determines the action and prevents a judgment from which an appeal might be taken c. Discontinues the action d. Grants or refuses a new trial e. Determines a claim prosecuted under G.S. 50‐19.1 f. 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 Appellate Jurisdiction, 2020 19 19

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). Appellate Jurisdiction, 2020 20 20

The Right of Appeal “[T]he right of appeal is purely statutory, and . . . unless some statute authorizes an appeal the judgment of a court of competent jurisdiction is final[.]” ‐‐ Cook v. Vickers, 141 N.C. 101, 53 S.E. 740 (1906). “The right of appeal, as we presently know it in criminal cases, is purely a creature of statute; in order to exercise that statutory right of appeal one must come within the terms of the applicable statute . . . .” ‐‐ Abney v. United States, 431 U.S. 651 (1977).

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7 The Right of Appeal in Civil Cases CHAPTER 1. CIVIL PROCEDURE ARTICLE 27. APPEAL G.S. § 1‐277. Appeal from superior or district court judge (a) An appeal may be taken from every judicial order or determination of a judge of a superior or district court, upon or involving a matter of law or legal inference, whether made in or out of session, which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial. (b) Any interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant or such party may preserve his exception for determination upon any subsequent appeal in the cause. Appellate Jurisdiction, 2020 22 22

The Right of Appeal in Civil Cases CHAPTER 50. DIVORCE AND ALIMONY SUBCHAPTER 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 the same action, a party may appeal from an order or judgment adjudicating a claim for absolute divorce, divorce from bed and board, the validity of a premarital agreement . . ., child custody, child support, alimony, or equitable distribution if the order or judgment would otherwise be a final order or judgment within the meaning of G.S. 1A‐1, Rule 54(b), but for the other pending claims in the same action.

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The Right of Appeal in Civil Cases Final vs. Interlocutory Orders G.S. § 1A‐1, Rule 54. Judgments (a) Definition.‐‐A judgment is either interlocutory or the final determination of the rights of the parties. “A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.” ‐‐ Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377 (1950). Appellate Jurisdiction, 2020 24 24

8 The Right of Appeal in Civil Cases Final vs. Interlocutory Orders “Upon entry of final judgment in a civil matter, appeals may be taken as of right to the Court of Appeals. N.C.G.S. § 1‐277(a).” ‐‐ Duncan v. Duncan, 366 N.C. 544, 742 S.E.2d 799 (2013).

“As a general rule, interlocutory orders are not immediately appealable.” ‐‐ Turner v. HammocksBeachCorp.,363N.C. 555, 681 S.E.2d 770 (2009).

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Final vs. Interlocutory Orders Final Final? . . . or just “Final”? “Once the trial court enters an order that decides all substantive claims, the right to appeal commences. Failure to appeal from that order forfeits the right. Because attorney’s fees and costs are collateral to a final judgment on the merits, an unresolved request for attorney’s fees and costs does not render interlocutory an appeal from the trial court’s order.” ‐‐ Duncan v. Duncan, 366 N.C. 544, 742 S.E.2d 799 (2013). Appellate Jurisdiction, 2020 26 26

Final vs. Interlocutory Orders Rule 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 in anaction,...orwhenmultiplepartiesareinvolved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes.

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9 The Right of Appeal in Civil Cases Interlocutory Appeals “Interlocutory orders may be appealed immediately under two circumstances. The first is when the trial court certifies [under Rule 54(b)] no just reason exists to delay the appeal after a final judgment as to fewer than all the claims or parties in the action. The second is when the appeal involves a substantial right of the appellant and the appellant will be injured if the error is not corrected before final judgment.” ‐‐ N.C. Dep’t of Transp. v. Stagecoach Village, 360 N.C. 46, 619 S.E.2d 495 (2005).

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Interlocutory Appeals Rule 54(b) Certification “When the trial court [properly] certifies its order for immediate appeal under Rule 54(b), appellate review is mandatory.” ‐‐ Sharpe v. Worland, 351 N.C. 159, 522 S.E.2d 577 (1999). “A trial judge [cannot] by denominating his decree a ‘final judgment’ make it immediately appealable under Rule 54(b) if it is not such a judgment.” ‐‐ TridynIndus.v.Am.Mut.Ins.Co.,296N.C. 486, 491, 251 S.E.2d 443, 447 (1979). Appellate Jurisdiction, 2020 29 29

Interlocutory Appeals Substantial Right “The appellant has the burden of showing this Court that the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.” ‐‐ Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 444 S.E.2d 252 (1994).

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10 Scope of Interlocutory Appeal

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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).

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The Right of Appeal in Civil Cases Interlocutory Appeals “The language of N.C.G.S. § 1‐277 is permissive not mandatory. Thus, where a party is entitled to an interlocutory appeal based on a substantial right, that party may appeal but is not required to do so. ‐‐ Dep’t of Transp. v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999) See G.S. § 1‐278. Interlocutory orders reviewed on appeal from judgment. “Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment.” Appellate Jurisdiction, 2020 33 33

11 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 ‐‐

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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 a transfer of the defendant’s case to the district court [to allow] the defendant to enter a plea of guilty or no contest to a Class H or I felony. (b)...Appealsthatareauthorizedinthesemattersare to 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.

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Appellate Jurisdiction by Petition G.S. §7A‐32. Power of Supreme Court and Court of Appeals to issue remedial writs. (c)TheCourtofAppealshasjurisdiction...toissue the prerogative writs, including mandamus, prohibition, certiorari, and supersedeas, in aid of its own jurisdiction, or to supervise and control the proceedings of any of the trial courts of the General Court of Justice, and of the Utilities Commission and the Industrial Commission. The practice and procedure shall be as provided by statute or rule of theSupremeCourt,or,intheabsenceofstatuteor rule,accordingto...thecommonlaw.

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12 “Right” of Review by Petition Civil G.S. §1‐269. Certiorari, recordari, supersedeas. Writs of certiorari, recordari, and supersedeas are authorized as heretofore in use. Criminal G.S. § 15A‐1444. When defendant may appeal; certiorari (g) Review by writ of certiorari is available when provided for by this Chapter, by other rules of law, or by rule of the appellate division.

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Authorized Petitions N.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 or Prohibition •Rule 23: Petition for Writ of Supersedeas •Rule 31: Petition for Rehearing ‐‐ Stay Tuned for Jaye Bingham‐Hinch on Petitions ‐‐ Appellate Jurisdiction, 2020 38 38

The Notice of Appeal

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13 The Notice of Appeal “When the record does not include a notice of appeal, the appellate courts are without jurisdiction.“ ‐‐ In re Hudson, 165 N.C. App. 894, 600 S.E.2d 25 (2004). “[W]ithout proper notice of appeal, the appellate court acquires no jurisdiction and neither the court nor the parties may waive the jurisdictional requirements even for good cause shown under Rule 2 of the Rules of Appellate Procedure.” ‐‐ In re Me.B., 181 N.C. App. 597, 640 S.E.2d 407 (2007). Appellate Jurisdiction, 2020 40 40

Giving Notice of Appeal in Civil Cases

G.S. § 1‐279.1. Manner and time for giving notice of appeal to appellate division in civil actions and in special 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.”

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Giving Notice of Appeal in Civil Cases N.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 42

14 Giving Notice of Appeal in Civil Cases “‘[W]here...thereisnocertificateofserviceinthe record showing when appellant was served with the trial court judgment, appellee must show that appellant received actual notice of the judgment more than thirty days before filing notice of appeal in order 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 the appeal is untimely, and offers proof of actual notice, we may not dismiss.” ‐‐ Adams v. Langdon, 264 N.C. App. 251, 826 S.E.2d 236 (2019)

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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 the right to appeal shall be given in writing by a proper party as defined in G.S. 7B‐1002 and shall be made within 30 days after entry and service of the order in accordance with G.S. 1A‐1, Rule 58. (c) Notice of appeal shall be signed by both the appealing party and counsel for the appealing party, if any. In an appeal by a juvenile, notice of appeal shall be signed by the GAL attorney advocate. Appellate Jurisdiction, 2020 44 44

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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15 Giving Notice of Appeal in Criminal Cases G.S. § 15‐1444. When defendant may appeal; 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.

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Giving Notice of Appeal in Criminal Cases N.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 26 A. Within 14 days of entry of judgment or order; or B. 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 criminal case under Rule 4(a), a judgment or an order is entered . . . when the clerk of court records or files the judge’s decision regarding the judgment or order.” ‐‐ State v. Oates,366N.C. 264, 732 S.E.2d 571 (2012). Appellate Jurisdiction, 2020 47 47

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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16 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 party to the dispute may, within 30 days from the date of such award or within 30 days after receipt of notice to be sent by registered mail or certified mail of such award, but not thereafter, appeal from the decision of [the Industrial] Commission to the Court of Appeals for errors of law under the same terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions. The procedure for the appeal shall be as provided by the rules of appellate procedure.” Appellate Jurisdiction, 2020 49 49

Giving Notice of Appeal Untimely Notice = No Jurisdiction “Failure to file a timely notice of appeal from the final judgment 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 notice of appeal . . . is jurisdictional, and an untimely attempt to appeal must be dismissed.” ‐‐ In re A.L., 166 N.C. App. 276, 601 S.E.2d 538 (2004).

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Giving Notice of Appeal Untimely Notice = No Jurisdiction N.C.R. App. P. 3 –Method and Timing (Civil) Notice of appeal must filed with the clerk of superior 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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17 “ ‘[W]here . . . there is no certificate of service in the record showing when appellant was served with the trial court judgment, appellee must show that appellant received actual notice of the judgment more than thirty days before filing notice of appeal in order 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 the appeal is untimely, and offers proof of actual notice, we may not dismiss.” ‐‐ Adams v. Langdon, 264 N.C. App. 251, 826 S.E.2d 236 (2019). Appellate Jurisdiction, 2020 52 52

Giving Notice of Appeal How to Count

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How to Count N.C.R. App. P. 27 ‐ Computation and Extension of Time a) The day of the act is not included. The last day of the time period is to be included, unless it is a Saturday, Sunday, or a legal state holiday; then go to the next business day. b) If a response is permitted to a document served on a party, the party gets 3 additional days when the item was served on them by mail/email. (The COA treats efiled documents 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 to petitions are deemed filed when mailed, as evidenced by the certificate of service. All other documents must be received by the clerk to be considered filed.

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18 Premature Notice of Appeal (Civil) “Rule 3 . . . provides the appellant must file and serve notice of appeal ‘within thirty days after entry of judgment . . . .’ In civil cases, a judgment is ‘entered’ when it is ‘reduced to writing, signed by the judge, and filed with the clerk of court.’ G.S. § 1A‐1, Rule 58. . . . Here, the trial court’s order was ‘entered’ . . . on 26 October 2015. An entered order did not exist when Defendant filed notice of appeal on 7 October 2015. Defendant did not file a subsequent or amended notice of appeal following entry of the order. . . . Defendant has failed to take timely action to perfect his appeal pursuant to Appellate Rule 3, and his appeal is not properly before this Court.” ‐‐ Mannise v. Harrell, 249 N.C. App. 322, 791 S.E.2d 653 (2016). Appellate Jurisdiction, 2020 55 55

Premature‐ish Notice of Appeal (Criminal) UnderN.C.R.App.P.4(a),“writtennotice[of appeal] may be filed at any time between the date of the rendition of the judgment or order and the fourteenth day after entry of the judgment or order.” ‐‐ State v. Oates, 366 N.C. 264, 732 S.E.2d 571 (2012).

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Giving Notice of Appeal N.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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19 Giving Notice of Appeal 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.2d 422 (1990).

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Giving Notice of Appeal 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: “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

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Giving Notice of Appeal Designation of Judgment or Order Appealed “[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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20 Giving Notice of Appeal Designation of Judgment or Order Appealed “While G.S. 1‐278 does provide that interlocutory orders affecting a judgment appealed from can be reviewed with the judgment, that statute applies only to interlocutory orders that are not appealable; the order upholding the court's jurisdiction over defendant's person was immediately appealable under the express provisions of G.S. 1‐277(b). This does not mean, of course, that defendant had to pursue an appeal from the order at that time; he could have preserved his exception for determination later as G.S. 1‐277(b) permits. But it does mean that having the right to appeal he was obliged to exercise that right, if at all, by first giving timely notice of appeal in accord with the provisions of G.S. 1‐279.” ‐‐ Gualtieri v. Burleson, 84 N.C. App. 650, 353 S.E.2d 652 (1987). Appellate Jurisdiction, 2020 61 61

Giving Notice of Appeal Designation of Judgment or Order Appealed 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, 785 S.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.2d 538 (2004).

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Giving Notice of Appeal Other Defects: Are They Jurisdictional? (Probably Not) “We may liberally construe a notice of appeal in one of two waystodeterminewhetheritprovidesjurisdiction.... First, a mistake in designating the judgment . . . should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake. Second, if a party technically fails to comply with procedural requirements in filing papers with the court, the court may determine that the party complied with the rule if the party accomplishes the functional equivalent of the requirement.” ‐‐ Von Ramm v. Von Ramm, 99 N.C. App. 153, 392 S.E.2d 422 (1990) Appellate Jurisdiction, 2020 63 63

21 Other Defects: Are They Jurisdictional? (Probably Not) (But This One Likely Is) Chapter 7B. Juvenile Code Subchapter I. Abuse, Neglect, Dependency N.C.G.S. §7B‐1001. Right to Appeal (c) Notice of appeal shall be signed by both the appealing party and counsel for the appealing party, if any. “Becausethenoticeofappeal...isnotsignedby respondent mother, we must grant the GAL’s motion to 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). Appellate Jurisdiction, 2020 64 64

Jurisdiction: Kind of A Big Deal