How does your appeal get dismissed when you’ve appealed to the "right", "appropriate", or "correct" court? In other words, your appeal was to the Court with jurisdiction over your appeal. It happened in the NC Court of Appeals this week.
The Date That Your Case Was Designated To The Business Court Is Critical To Your Appeal
For some context, you’ll remember the NC Court of Appeals decision in Christenbury Eye Center P.A. v. Medflow, Inc., in which the COA dismissed an appeal from a Business Court ruling because the proper appellate court to hear that case was not it, but the NC Supreme Court. That was because the case was designated to the Business Court after October 1, 2014, when G.S. § 7A-27(a)(2), became effective. That statute specifies that appeals of the Business Court’s final judgments will go to the NC Supreme Court.
Since the Christenbury appeal was from a case designated to the Business Court after the October 1, 2014 effective date of the statute, it was to the "wrong" Court. the NCCOA concluded that the case should have been appealed to the NC Supreme Court and it lacked jurisdiction to hear the appeal.
But in Grasinger v. Williams, this week, the NCCOA dismissed an appeal from a Business Court decision which was properly appealed to it, the "correct" Court. This case was designated to the Business Court before the effective date of the statute, so there was no appeal directly to the NC Supreme Court under the new Section 7A-27(a)(2).
So, why did the COA dismiss this appeal? Because there was nothing in the Record on Appeal showing the date that the case was designated to the Business Court. In other words, there was no way to tell whether the case was designated to the Business Court before October 1, 2014 (in which case the appeal would go to the COA) or after that date (in which case the appeal would go to the NC Supreme Court). Judge Calabria said:
[w]ithout the precise date upon which this action was designated as a mandatory complex business case, we cannot determine with certainty whether jurisdiction lies with this Court or our Supreme Court. . . . In the instant case, because plaintiff-appellants failed to include the designation approval or a designation order in the record on appeal and failed to note the date of designation in their brief, they have failed to confer jurisdiction on this Court and we dismiss.
Op. at 9.
Show The Designation Date In Your Record On Appeal
She said that the party appealing from a case designated as a complex business case, "bears the burden of showing the actual designation date" Op. at 9. In order to carry that burden in an appeal from a Business Court case designated before October 1, 2014, the appealing party:
must include in the record a copy of the dated designation and explicitly note the date of designation in the statement of grounds for appellate review portions of their brief in order to confer jurisdiction on this Court.
Op. at 9.
The COA rejected the argument that since the Amended Complaint (in the Record on Appeal) showed a filing date of November 6, 2013, the designation to the Business Court must have followed no more than thirty days later (if the statutory procedure for designation was followed), and would have been designated to the Business Court well before the effective date of the statute requiring appeals be made to the NC Supreme Court. Judge Calabria outlined a possible set of events by which a designation could be entered beyond the thirty day period specified by the statute. Op. at 7.
Couldn’t The COA Have Taken Judicial Notice Of The Date Of Designation?
The COA also was not willing to take the few minutes it took me to find the Grasinger Designation Order in the readily accessible case file on the Business Court’s website. The Designation Order bears a date of October 25, 2013, putting the Business Court’s decision squarely within the COA’s jurisdiction. Could the COA have done the same thing that I did? Sure, the NC Supreme Court has said that "this Court may take judicial notice of the public records of other courts within the state judicial system." Alpine Motors Corp. v. Hagwood, 233 N.C. 57, 62 S.E.2d 518 (1950).
In fact, if the North Carolina Rules of Evidence apply to the Court of Appeals, judicial notice might have been mandatory. Rule 201(d) says: "When mandatory.– A court shall take judicial notice if requested by a party and supplied with the necessary information." Of course, the Appellant in Grasinger probably had no idea that the COA would focus so squarely on the date of the designation, and that it would be unwilling to spend a couple of minutes on the Business Court’s website to satisfy itself that it had jurisdiction over the appeal. The Appellant therefore had no opportunity to request that the COA take judicial notice of the readily available Designation Order.
To be fair, as Judge Calabria pointed out, "it is not the duty of this Court to construct arguments for or find support for [an] appellant’s right to appeal[.]" (quoting Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994).
The Court then dictated a mandatory procedure for those appealing opinions in case designated to the Business Court before October 1, 2014: they must include the Designation Order in the Record on Appeal, and state the date of designation in the statement of grounds for appellate review in their brief. Op. at 9.
This Dismissal Looks Like A One-Off
Should we be worried about a deluge of dismissals from the COA because Appellants didn’t specify the date their case was designated to the Business Court? Apparently not. I thought that there couldn’t be that many cases that old around still on appeal, but I checked and there were more than ten. I looked at most of the Records on Appeal in those cases, and found that each either included the Designation Order or a statement reflecting the date of designation. So it’s unlikely that there will be any more dismissals of this type from the COA.
Be Careful With Your Records On Appeal Going Forward Anyway
But in case the NC Supreme Court is as unwilling as the COA to check the Business Court website to determine whether a case was designated after October 1, 2014, it’s a good idea to follow the instruction from the Grasinger opinion in appeals to the NC Supreme Court.
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I would have missed this decision but for my colleague Dan Smith, who circulated an email this week around Brooks Pierce about this decision. (This is the second time that I owe a thank you to Dan) And, of course, I was "scooped" again by the North Carolina Appellate Practice Blog, which wrote about this decision a couple of days ago. I am reconciling myself to being much slower than I used to be. I don’t like it.