On Friday the N.C. Supreme Court issued two per curiam
decisions (no opinions) in cases where the appeals had been dismissed by the Court of Appeals (COA
) for purported rule violations. Each case had to do with proof of service of a notice of appeal. The first case is Blevins v. Town of West Jefferson
(for the underlying COA
decision, see here
). The second case is In re C.T. & B.T.
(for the underlying COA
decision, see here
got to the Supreme Court based on Judge Geer's
got to the Supreme Court based on Judge Wynn's dissent.
The split COA decisions in Blevins
reflect the controversy in recent years spawned by the Supreme Court's 2005 decision in Viar v. N.C. Dep't of Transportation.
With Friday's decision in Blevins
, this makes three times in the past five months that the Supreme Court reversed COA
decisions that had dismissed appeals for rule violations. (The other two cases are State v. Hart
and Walsh v. Town of Wrightsville Beach
If the Supreme Court is trying to send a signal to the COA in these cases, it may be this: don't go overboard in looking to dismiss appeals.Blevins
The purported rule violations in Blevins
were these: (1) the notice of appeal in the record on appeal didn't have the superior court file stamp showing it was filed; (2) the record on appeal didn't contain the certificate of service for the notice of appeal.
Judge Tyson's majority opinion deemed each violation a "fatal" defect requiring dismissal. Indeed, he deemed them jurisdictional defects.
disagreed. As for the lack of a file stamp, she deemed it inconsequential because the record on appeal (to which the appellee stipulated) contained a statement that the notice of appeal had been timely filed. As for the lack of a certificate of service for the notice of appeal, she deemed this inconsequential because appellee
didn't raise any issue about service of the notice of appeal. Because the appellee
didn't take issue with service of the notice of appeal and participated in the appeal, Judge Geer urged, this meant the appellee waived the appellant's
failure to include a certificate of service. See Hale v. Afro-Am. Arts Int'l, Inc.
335 N.C. 231 (1993). Judge Geer
accused the majority of misapplying and improperly seeking to overrule Supreme Court precedent.
She deemed it particularly inappropriate to dismiss the appeal sua sponte
without notice to the appellant
and without any opportunity to correct the purported error by moving to amend the record on appeal.
On Friday the Supreme Court vindicated Judge Geer by reversing.
The reversal presumably means the following.
(1) First, the majority erred in concluding that the absence of a file stamp on the notice of appeal (in the record on appeal) is a jurisdictional defect requiring dismissal. So long as the record on appeal somewhere establishes that the notice of appeal was timely filed (e.g., by way of a statement to that effect in a stipulated record), there should be no dismissal.
(2) Second, the failure to include a certificate of service for the notice of appeal isn't a jurisdictional defect. Rather, it may be waived by the appellee
--waived by participating in the appeal without taking issue with service of the notice of appeal. If the appellee
participates in the appeal and doesn't complain about service of the notice of appeal, the COA
shouldn't raise the matter sua sponte
and dismiss the appeal.C.T.
The latter point is demonstrated by C.T.
, also decided Friday.
the appellant failed to attach a certificate of service to the notice of appeal when it was filed in the trial court. The appellees
objected immediately, moving to trial court to dismiss the appeal. And, when the case was docketed on appeal, they again moved to dismiss the appeal on this basis. The COA
, in an opinion by Judge McGee, held that the failure to attach a certificate of service to the notice of appeal was fatal. The Supreme Court affirmed.
By affirming C.T.
while reversing Blevins
, the Court appears to have adopted not only Judge Geer's
views in Blevins
but also her distinction of C.T.
as a waiver case. For as Judge Geer explained in her Blevins
dissent, the problem with C.T.
(which distinguished it from Blevins
) was that in C.T.
the appellees took issue with the appellant's failure to include proof of service of the notice of appeal; therefore there was no waiver of the certificate of service issue.The Upshot
The upshot of all of this: If you're appealing, make sure you attach a certificate of service to your notice of appeal. And include it in the record on appeal (although a stipulation in the record on appeal that the notice of appeal was timely served should do the trick of the appellee
joins the stipulation and participates in the appeal).