A recent North Carolina Court of Appeals decision serves as an important reminder that some appellate deadlines are unforgiving.

In Atkinson v. Atkinson, the Court of Appeals affirmed the dismissal of an appeal because the notice of appeal was filed 11 days after the clerk’s order was entered – one day beyond the 10-day statutory deadline applicable to certain special proceedings. The court emphasized that the deadline runs from the entry of the order, meaning the date the order is reduced to writing, signed, and filed with the clerk, not from the date the parties receive the order. The court also rejected the argument that service by mail extended the deadline by three days, holding that the mailing rule does not apply because the statute measures the appeal period from entry of the order, not service.

Risk Management Tip

This decision highlights a practical concern for lawyers. In some cases, a clerk may sign and file an order but not immediately upload or enter it into the online court portal. If you are waiting on an appealable order, relying on electronic notifications or periodic checks of the portal could result in missing a jurisdictional deadline.

The safest practice is to monitor the court file frequently – potentially daily in matters where an appeal deadline is approaching – and confirm the date the order was actually entered.

We have heard of firms implementing a policy in the office for cases where the 10-day deadline from filing would apply. In any case where they want to appeal, they would email the clerk daily to ask whether the order has been signed and filed. Because a timely notice of appeal is jurisdictional, missing the deadline by even a single day can permanently forfeit your client’s right to appellate review.

Atkinson v. Atkinson (Lawyers Weekly No. 011-129-26, 8 pp.) (Valerie Zachary, J.)