It’s the stuff of nightmares: you drop your notice of appeal in the mail 24 days after a summary-judgment order is entered against your client, trusting the post office will manage to get it into the clerk’s hands for filing by day 30. Then, on day 30, you find out that the clerk never received the notice of appeal. You scramble to get another copy to the courthouse, which is several hours away and bracing for a tropical storm. You manage to get a replacement notice of appeal to the clerk, but not until day 31.
Surely there’s some sort of “close enough” or “good faith attempt” doctrine that can save you? Not necessarily. Longtime readers will remember a strikingly similar “FedEx nightmare” I wrote about a decade (!) ago. In that case, the appellee moved to dismiss in the trial court, which had no choice but to throw out the appeal for being untimely. The 30-day deadline for filing the notice of appeal is, after all, jurisdictional.
This very nightmare came true for a Cary lawyer trying to appeal an Onslow County judgment last August in Eberhardt v. Meletich. Realizing the jurisdictional problem, he wisely filed a petition for writ of certiorari with the Court of Appeals, asking for the Court to review the summary-judgment order anyway and including an affidavit swearing that the post office admitted it was entirely at fault. The appellee opposed the petition, but equally wisely focused that opposition solely on the merits of the appeal, not the post-office mishap. (Remember, petitions for cert can be denied when the petitioner fails to show that the underlying order is likely incorrect.)
Earlier this week, the Court of Appeals split the baby, granting the petition to reach the merits of the appeal but nevertheless affirming the summary-judgment order. Plaintiffs showed a “clear intent” to appeal, and the appellees received a copy of the notice of appeal timely, so it was only fair to let the appeal go forward, the Court reasoned. Crisis averted!
Two more things to note here:
First, these “lost in the mail” problems should become less common as our courts move to the e-courts platform. Onslow County itself joined Odyssey in February 2025, just a few months after the mis-mailing here.
Second, the order on appeal in Eberhardt might not have been a final judgment after all. It looks like the plaintiff took a voluntary dismissal of the last remaining claims several months after the notice of appeal fiasco. In that scenario, the voluntary dismissal created a final judgment from which appeal could have been taken within 30 days–an appeal that could include earlier orders like the months-old summary-judgment order here.
Hat tip to James Kilbourne for flagging this opinion for us.
Sleep well, my anxious friends.
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