Filing a Notice of Appeal seems like a pretty easy thing to do. You walk it over (or mail it) to the Clerk of Superior Court in the County in which the case was filed, and the Clerk puts a "filed" stamp on it indicating the date on which it was filed.
Remember that when appealing a Business Court decision, it is not enough to just e-file your Notice of Appeal electronically with the Business Court. You have to file the Notice of Appeal with the Clerk of Superior Court for the County in which the case originated.
a party may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof within the time prescribed by subsection (c) of this rule.
The "time prescribed by subsection (c)" is generally 30 days following the entry of the ruling appealed from.
This filing thing seems pretty hard to get to go wrong. But it did go wrong for the Plaintiff attempting an appeal in Hefner v. Mission Hospital, Inc., 2016 NCBC 21.
How did it happen? Hefner, whose Notice of Appeal needed to be filed by January 19, 2016, mailed his Notice of Appeal to Buncombe County on January 8th (via FedEx, when it "absolutely, positively has to be there overnight.") But the Notice of Appeal was not file stamped by the Buncombe County Clerk of Court until twelve days later on January 20th, a day late.
You are thinking that FedEx must have fallen down on the job. No, FedEx didn’t screw up. The package was delivered as it was addressed, to: "Buncombe County Courthouse, ATTN: Civil Division." If you are questioning the quality of that address, a paralegal for Plaintiff’s counsel says that is the address to send the filing that she was given in a phone call to the Clerk’s office. Personius ¶3.
So, as you might guess, the package didn’t end up in the hands of the Buncombe County Clerk of Court. It went to the civil process division of the Sheriff”s Department of Buncombe County, which is in the same building as the Clerk. The Sheriff’s office apparently forwarded the Notice of Appeal to the Clerk of Court in time for it to be file stamped on January 20th.
Plaintiff (in opposing Defendant’s Motion to Dismiss the Appeal), said that the file stamp of January 20th was not dispositive of the filing date and that the Notice of Appeal was most likely received by the Clerk of Court earlier than that. Plaintiff offered in support of this argument an Affidavit from a Lieutenant in the Sheriff’s office. The Lieutenant said that the Sheriff’s office’s records showed that the Notice of Appeal was received on January 13, 2016 and served on the Defendant the next day.
The Sheriff’s office had a practice of delivering documents that needed to be filed with the Court of delivering those documents to the Clerk on the next business day following the day that they were served.
The Lieutenant said that he was "quite confident" that those practices had been followed with respect to the Plaintiff’s Notice of Appeal, and that the document would have been delivered to the Clerk of Court on January 15th. Aff. at ¶5.
Judge Gale, in granting the Motion to Dismiss the Appeal, said that "’the trial court is held to a strict construction of Appellate Rule 3. Order ¶9 (quoting Ehrenhaus v. Baker, 2014 NCBC LEXIS 30, at *10, cert. denied and appeal dismissed, 776 S.E.2d 699 (2015)).
He said that "plaintiff has not met his burden of proving that the Notice of Appeal was filed on any day other than . . . the date found on the trial stamp." Order ¶11. Judge Gale referenced Rule 3(a) of the NC Rules of Civil Procedure, which says that the file stamp on a Complaint "shall be prima facie evidence of the date of filing." Order ¶8.
Given the lack of definitive evidence that the Notice of Appeal was in the hands of the Clerk’s office before the appeal deadline, the Business Court said that it didn’t need to address whether delivery to the Court could be a sufficient filing in the absence of a contemporaneous file stamp. But that question is probably answered by Appellate Rule 26(a)(1), which says that:
filing may be accomplished by mail addressed to the clerk but is not timely unless the papers are received by the clerk within the time fixed for filing.
There is enough murk in this case that it is hard not to feel sorry for the Plaintiff missing the appeal deadline. Even Judge Gale said that he was "sympathetic to the circumstances in which Plaintiff now finds himself." Order Par. ¶11. He said that he lacked the discretion to allow the appeal, as only the Court of Appeals has that sort of discretion. He referenced Appellate Rules 2 and 21 as providing that flexibility.
Maybe the Plaintiff will appeal this ruling. But the appellate courts are pretty dogmatic about scrupulous compliance with Appellate Rule 3 (see Dogwood Dev. and Mgt, Co, v. White Oak Transport Co., 362 N.C. 191, 657 S.E.2d 361 (2008)), so I wouldn’t be too optimistic if I were the Plaintiff.
Two takeaways from this Order are:
Don’t count on the Sheriff to file time-sensitive documents, and
Double-check the address of the Clerk’s office when filing by mail.