While the Rolling Stones may have believed that time was on their side, today the Court of Appeals reminded prospective appellants that, when faced with a deadline for filing a Notice of Appeal, time is definitely not on their side.  In a published opinion, the Court of Appeals addressed whether a Defendant timely filed a Notice of Appeal. If not, the Court of Appeals lacked jurisdiction and would have to dismiss the appeal.  The Court’s analysis hinged on the intersection between the Rules of Civil Procedure and the Rules of Appellate Procedure.

The facts of the case were straightforward: the trial court entered its Order on Friday, February 4, 2022.  The Plaintiff served the Order on the Defendant by first-class mail on Wednesday, February 9, 2022.  The Defendant filed the Notice of Appeal on Tuesday, March 11, 2022. 

The question for the Court of Appeals was whether the Plaintiff served the Order within the three-day time period set forth in Rule 58 of the Rules of Civil Procedure (“Civil Rule”).  If so, then the thirty-day period allowed for appealing began on the day the trial court entered the Order, on February 4, 2022, pursuant to Rule 3(c)(1) of the Rules of Appellate Procedure (“Appellate Rule”).  If not, then the thirty-day period did not begin until the Plaintiff served the Order, on February 9, 2022, pursuant to Appellate Rule 3(c)(2).

The Court of Appeals held that the Plaintiff timely served the Order within the three-day period set forth in Civil Rule 58, even though it actually took the Plaintiff five days to serve the Order.  Civil Rule 58 requires service of an order within three days after the court enters it.  Civil Rule 6(a), however, provides that when a period of time prescribed by the Civil Rules is less than seven days, then “intermediate Saturdays, Sundays, and holidays shall be excluded in the computation.”  This Rule also provides that the day the trial court enters an order does not count in the computation. 

In other words, although Civil Rule 58 required service of the Order within three days, only business days, not all days, counted, and the first day of the three allowable days was Monday, February 7, 2022.  Since the Plaintiff served the Order on the third business day after the day the court entered the order, on Wednesday, February 9, 2022, the Court of Appeals concluded that the Plaintiff timely served the Order within the time period required under Civil Rule 58.

As a result, the thirty-day appeal period began the day the Order was entered, on February 4, 2022.  The deadline expired on Sunday, March 6, 2022.  While Civil Rule 6(a) extended that deadline to Monday, March 7, 2022, two additional rules doomed the Defendant.

First, even though Civil Rule 6(e) and Appellate Rule 27(b) allow three extra days for a responsive filing when the opposing party makes service by first-class mail (or electronic mail), Appellate Rule 3 explicitly precludes the application of this extra time within the context of filing Notices of Appeal.  Second, since the Defendant had more than seven days to file the Notice of Appeal, the Civil Rule 6(a) exclusion of Saturdays, Sundays, and holidays from the computation did not apply – meaning the Defendant was stuck with actual days, not business days.

In sum, the Defendant filed the Notice of Appeal late and the Court of Appeals dismissed the appeal for lack of jurisdiction. 

The lessons here for practitioners are straightforward: (1) days do not always mean actual days, (2) counting can be more difficult than we learned in elementary school, and, most importantly, and (3) every time you come face to face with an appellate deadline, especially a jurisdictional one like the deadline for filing a Notice of Appeal, check and re-check the rules to make sure you know when the deadline will actually occur.  And for added comfort, check out the explanations in the leading treatise on North Carolina Appellate Practice and Procedure.

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