Malpractice Alert: When “Thirty Days After Service” Doesn’t Mean Thirty Days After Service

N.C. Court of Appeals Says that Contrary to Appellate Rule 3(c)(2), Time for Notice of Appeal in Cases of “Actual Notice” Runs From Date of Entry of the Judgment Even if Judgment is Never Formally Served.

When calculating the deadline for filing notice of appeal from a final judgment, Appellate Rule 3 used to seem fairly clear that the deadline was either: (1) 30 days from the date of the entry of judgment if the judgment was formally served within three days of the entry of the judgment, or (2) 30 days after formal service of the judgment if service was not made within that three day period.  The deadline for filing Notice of Appeal in both instances under Rule 3 was triggered by formal service of the judgment upon the appellee.  However, in light of several opinions issued by the N.C. Court of Appeals over the last year or so, there is now a third trigger for the deadline for filing a notice of appeal that is found nowhere in the rule – “actual notice” to the appellant that the judgment has been filed even if there is no formal service.  The Court has said that “when a party receives actual notice of the entry and content of a judgment . . . the service requirements of Rule 3(c) . . . are not applicable.”  The implications of the new “actual notice” trigger are such that the prudent appellate lawyer will no longer rely on the date of formal service of the judgment to calculate the deadline for filing a notice of appeal.  Now the deadline should always be calendared for thirty days from the date the judgment was entered (i.e. filed).

So what does the N.C. Court of Appeals say amounts to “actual notice of the entry and content of a judgment”?  In Manone v. Coffee, 217 N.C. App. 619, 720 S.E.2d 781 (2011), the Court of Appeals found that the appellant had actual notice of the filing of the judgment when “a staff member from the [appellant] counsel’s office picked up the order from the court house three days after it was filed.”  Even though the judgment did not get to the desk of the actual attorney handling the case until four days after the filing of the order, the Court of Appeals said that the attorney had “actual notice” within the three days described in Rule 3(c)(1) and the deadline for filing notice of appeal ran from the date of filing.   While the Manone opinion purported to be a narrow holding because it was “not clear from the record which party was required to serve a copy of the judgment,” the Court has relied upon Manone in two subsequent opinions that illustrate the malpractice trap created by the “actual notice” trigger.  See Magazian v. Creagh, -- N.C. App. -- , 759 S.E.2d 130 (2014)(appellant’s attorney had “actual notice” when the judgment was forwarded to him by email), and Kennedy v. Ramirez, N.C. Ct. of Appeals (April 15, 2014 unpublished) (appellant’s attorney had “actual notice” of the final judgment because he acknowledged receipt of an emailed copy of order denying his Rule 59 motion).    

In a series of excellent blog posts by NC Appellate Court watchdog, and our friend, Beth Scherer of Smith Moore Leatherwood in Raleigh, Beth notes that the courts might find “actual notice” in a number of scary ways, thus making it difficult for an appellate lawyer to rely upon any date other than the date that a judgment is filed.  Beth goes so far as to recommend that lawyers should “take a figurative red pen and strike out that portion of Appellate Rule 3 [N.C. App. R. 3(c)(2)]” that allows for filing notice of appeal thirty days after service of the judgment when the judgment is not served within three days of the filing.   Should you rely upon the certainty of formal service of a judgment to determine the deadline for filing a notice of appeal, you will run the risk that the Court might find that you had actual notice earlier through such means as email to you or another attorney at your firm or receipt of the judgment through the mail by another attorney at another office of your firm.  Ignoring for now the potential incentive this creates for underhanded appellate practice, wise appellate attorneys should strike Rule 3(c)(2) from their rulebooks and file all notices of appeal within 30 days of the file-stamp date on the judgment.

Warren Savage joined Lawyers Mutual as claims counsel in 2005. He focuses on litigation, criminal defense, appellate advocacy, and professional responsibility in his work with Lawyers Mutual. A former partner with the law firm of Bailey & Dixon in Raleigh, Warren graduated from the University of Virginia and earned a Master of Arts in Teaching at the University of North Carolina at Chapel Hill before graduating magna cum laude from Campbell University School of Law. He spent several years as a high school English teacher.  Contact Warren at 800.662.8843 or wsavage@lawyersmutualnc.com.