Tuesday, August 07, 2007, 9:02 PM

Timelines For The Appellate Record

Today the COA affirmed the dismissal of an appeal based on the Plaintiff-Appellant's failure to abide by the timelines governing the record on appeal. The case is Cadle Co. v. Bunya.

After filing its notice of appeal, Plaintiff failed to serve a proposed record within 35 days, as required by the rules, and instead served it a week late (42 days). Defendant moved the trial court to dismiss the appeal, and at the hearing, Plaintiff made an oral motion for a (retroactive) extension of time, which the trial court granted, purporting to make the proposed record timely served.

The COA held this was error, because the motion wasn't based in writing, as required by N.C.R.App.P. 27 (d), but instead was done orally at the hearing.

The COA also held that the trial court had no authority to then grant Defendant an extension of time to file objections to the proposed record; only the COA may do that. See N.C.R.App.P. 27(c)(1).

The COA then held that, in any event, Plaintiff failed to file the agreed-upon record within 15 days after it was settled. This alone was ground to dismiss the appeal.

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