For both civil and criminal appeals, the North Carolina Rules of Appellate Procedure require an appealing party who is filing a written notice of appeal to identify “the judgment or order from which appeal is taken.” N.C. R. App. P. 3(d), 4(b). But does appeal from a final judgment include all the earlier, interlocutory orders that merge into the judgment? Or, must you explicitly identify both the judgment and any orders you intend to challenge on appeal? Relatedly, how much specificity must the notice of appeal include to satisfy the requirements of Appellate Rules 3 and 4? Can a notice of appeal be too specific? A recent decision from the Court of Appeals addresses these issues.
In State v. Hawkins, the defendant in a statutory rape case sought to challenge the trial court’s oral decision at trial about proffered expert witness testimony. After a jury found the defendant guilty, the defendant filed a timely notice of appeal. The record on appeal is sealed because of the nature of the case, but the Court of Appeals said that the defendant’s notice of appeal “only discussed the [trial] court’s ruling on the motion in limine regarding the use of the word ‘rape,’ along with five other issues.” Apparently, the notice of appeal did not specifically mention the trial court’s ruling regarding the expert witness. As a result, the Court of Appeals held that the defendant’s notice of appeal contained “jurisdictional defects because of his failure to comply with Rule 4.” The Court went on to address the defendant’s petition for writ of certiorari on the expert witness issue and denied the petition for failure to demonstrate likely error.
The Court’s analysis of the designation requirement raises some interesting questions. Consider this: because Hawkins was a criminal case, what if the defendant had given oral notice of appeal at trial (which is allowed under Rule 4) rather than filing a written notice of appeal? If a defendant is permitted to give a “generic” oral notice of appeal in open court, why is there a different standard for a written notice of appeal?
In either a civil or criminal case, is the appellant better off leaving the language in a notice of appeal generic? For example, is it sufficient for the appellant to notice an appeal from “the trial court’s final judgment and all intermediate orders necessarily affecting the judgment”? When oral rulings are made at trial, what exactly does an appellant need to include in the notice of appeal to ensure that those rulings are preserved?
The safe bet, of course, is to include anything and everything in the notice of appeal. That can be tricky when new counsel is engaged at the outset of an appeal, and it may be difficult to obtain an entire transcript within 30 days of the conclusion of the trial (or 14 days for criminal defendants). Nevertheless, the Hawkins decision suggests that specificity is required in a written notice of appeal. Perhaps that is one reason why oral notices of appeal are so common in criminal cases.
Taking a step back, do the Appellate Rules require a party to appeal from and designate both a final judgment and interlocutory orders? For example, the Rules provide that a criminal defendant must file written notice of appeal “within fourteen days after entry of the judgment or order,” while also designating “the judgment or order from which appeal is taken.” N.C. R. App. P. 4(a)(2), (b). Does this use of the same phrase to describe what has to be appealed and when it has to be appealed suggest that North Carolina follows the merger rule (the doctrine that an appeal from a final judgment brings up all intermediate orders of the trial court that make up that final judgment “package”)?
I would be remiss if I neglected to mention another jurisdictional issue lurking in this case: service of the notice of appeal. In Hawkins, the defendant filed a timely notice of appeal but did not include a certificate of service in the record on appeal. The State filed its brief without mentioning this defect—and in fact did not raise it at all until the defendant had realized the mistake and filed a petition for writ of certiorari. Given those circumstances, the Court held that the State had waived its opportunity to raise the defect. Although service of the notice of appeal is a “jurisdictional” requirement, it is also a waivable requirement. But that’s a “jurisdictional” story for another day.