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This document was posted on the Judicial Web Site on 17 March 1997.
Order Adopting Amendment to the Rules
of Appellate Procedure
Rules 3(c), 8(a), 9(b)(5), 11(c), 12(c), 14(a),
15(b), 18(c), 21(c), 21(f), 23(e), 25(a), 26(b), 26(g), Appendix A and Appendix D are
hereby amended to read as in the following pages. All amendments shall become effective as
To rules 3, 9, 11, 12 and 25 and Appendixes A and D, immediately upon their adoption.
To rules 8, 14, 15, 18, 21, 23, and 26, on 1 July 1997.
Adopted by the Court in Conference this 6th day of March, 1997. These amendments shall
be promulgated by publication in the Advance Sheets of the Supreme Court and the Court of
Appeals. These amendments shall also be published as quickly as practical on the North
Carolina Judicial Branch of Government Internet Home Page (http://www.aoc.state.nc.us).
For the Court
APPEAL IN CIVIL CASES - HOW AND WHEN TAKEN
(c) Time for Taking Appeal. Appeal from a judgment or order in a civil
action or special proceeding must be taken within 30 days after its entry. The running of
the time for filing and serving a notice of appeal in a civil action or special proceeding
is tolled as to all parties for the duration of any period of noncompliance with the
service requirement of Rule 58 of the Rules of Civil Procedure
, and or
by a timely motion filed by any party pursuant to the Rules of Civil Procedure enumerated
in this subdivision , and . The full time for appeal commences to
run and is to be computed from the date of compliance with the service requirement of
Rule 58 of the Rules of Civil Procedure or from the entry of an order upon any of the
(1) a motion under Rule 50(b) for judgment n.o.v., whether or not with conditional grant or denial of new trial;
(2) a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted;
(3) a motion under Rule 59 to alter or amend a judgment;
(4) a motion under Rule 59 for a new trial.
If a timely notice of appeal is filed and served by a party, any other party may file
and serve a notice of appeal within 10 days after the first notice of appeal was served on
STAY PENDING APPEAL
I. Stay in Civil Cases. When appeal is taken in a civil action from a judgment, order, or other determination of a trial court, stay of execution or enforcement thereof pending disposition of the appeal must ordinarily first be sought by the deposit of security with the clerk of the superior court in those cases for which provision is made by law for the entry of stays upon deposit of adequate security, or by application to the trial court for a stay order in all other cases. After a stay order or entry has been denied or vacated by a trial court, an appellant may apply to the appropriate appellate court for a writ of supersedeas in accordance with Rule 23. In any appeal which is allowed by law to be taken from an agency to the appellate division, application for the Writ of Supersedeas may be made to the appellate court in the first instance. Application for the writ of supersedeas may similarly be made to the appellate court in the first instance when extraordinary circumstances make it impracticable to obtain a stay by deposit of security or by application to the trial court for a stay order.
THE RECORD ON APPEAL
(b) Form of Record; Amendments. The record on appeal shall be
in the format prescribed by Rule 26(g) and the appendixes to these rules.
(5) Additions and Amendments to Record on Appeal. On motion of any
party or on its own initiative, the appellate court may order additional portions of a
trial court record or transcript sent up and added to the record on appeal. On motion of
any party the appellate court may order any portion of the record on appeal or transcript
amended to correct error shown as to form or content. Prior to the
of the record on appeal in the appellate court, such motions may be made by any party to
the trial tribunal.
SETTLING THE RECORD ON APPEAL
(c) By Judicial Order or Appellant's Failure to Request Judicial
Settlement. Within 21 days (35 days in capitally tried cases) after service
upon him of appellant's proposed record on appeal, an appellee may serve upon all other
parties specific amendments or objections to the proposed record on appeal, or a proposed
alternative record on appeal. Amendments or objections to the proposed record on appeal
shall be set out in a separate paper.
If any appellee timely
files serves amendments, objections, or
a proposed alternative record on appeal, the appellant or any other appellee, within 10
days after expiration of the time within which the appellee last served might have filed
served, may in writing request the judge from whose judgment, order, or other
determination appeal was taken to settle the record on appeal. A copy of the request,
endorsed with a certificate showing service on the judge, shall be filed forthwith in the
office of the clerk of the superior court, and served upon all other parties. Each party
shall promptly provide to the judge a reference copy of the record items, amendments, or
objections served by that party in the case. If only one appellee or only one set of
appellees proceeding jointly have so filed served, and no other
party makes timely request for judicial settlement, the record on appeal is thereupon
settled in accordance with the appellee's objections, amendments or proposed alternative
record on appeal. If more than one appellee proceeding separately have so filed
served, failure of the appellant to make timely request for judicial settlement
results in abandonment of the appeal as to those appellees, unless within the time allowed
an appellee makes request in the same manner.
FILING THE RECORD; DOCKETING THE APPEAL;
COPIES OF THE RECORD
(c) Copies of Record on Appeal. The appellant need file but a
single copy of the record on appeal. Upon filing, the appellant may be required to pay to
the clerk of the appellate court a deposit fixed by the clerk to cover the costs of
reproducing copies of the record on appeal. The clerk will reproduce and distribute copies
as directed by the court.
By stipulation filed with the record on appeal the
parties may agree that specified portions of the record on appeal need not be reproduced
in the copies prepared by the clerk.
In civil appeals in forma pauperis the appellant need not pay a deposit for reproducing
copies, but at the time of filing the original record on appeal shall also deliver to the
clerk two legible copies thereof.
APPEALS OF RIGHT FROM COURT OF APPEALS TO
SUPREME COURT UNDER G.S. 7A-30
(a) Notice of Appeal; Filing and Service. Appeals of right
from the Court of Appeals to the Supreme Court are taken by filing notices of appeal with
the Clerk of the Court of Appeals and with the Clerk of the Supreme Court and serving
notice of appeal upon all other parties within 15 days after the mandate of the Court of
Appeals has been issued to the trial tribunal. For cases which arise from the
Industrial Commission, a copy of the notice of appeal shall be served on the Chairman of
the Industrial Commission. The running of the time for filing and serving a notice of
appeal is tolled as to all parties by the filing by any party within such time of a
petition for rehearing under Rule 31 of these rules, and the full time for appeal
thereafter commences to run and is computed as to all parties from the date of entry by
the Court of Appeals of an order denying the petition for rehearing. If a timely notice of
appeal is filed by a party, any other party may file a notice of appeal within 10 days
after the first notice of appeal was filed. A petition prepared in accordance with Rule
15(c) for discretionary review in the event the appeal is determined not to be of right or
for issues in addition to those set out as the basis for a dissenting opinion may be filed
with or contained in the notice of appeal.
DISCRETIONARY REVIEW ON CERTIFICATION BY SUPREME
COURT UNDER G.S. 7A-31
(b) Same; Filing and Service. A petition for review prior to
determination by the Court of Appeals shall be filed with the Clerk of the Supreme Court
and served on all other parties within 15 days after the appeal is docketed in the Court
of Appeals. For cases which arise from the Industrial Commission, a copy of the
petition shall be served on the Chairman of the Industrial Commission. A petition for
review following determination by the Court of Appeals shall be similarly filed and served
within 15 days after the mandate of the Court of Appeals has been issued to the trial
tribunal. Such a petition may be contained in or filed with a notice of appeal of right,
to be considered by the Supreme Court in the event the appeal is determined not to be of
right, as provided in Rule 14(a). The running of the time for filing and serving a
petition for review following determination by the Court of Appeals is terminated as to
all parties by the filing by any party within such time of a petition for rehearing under
Rule 31 of these rules, and the full time for filing and serving such a petition for
review thereafter commences to run and is computed as to all parties from the date of
entry by the Court of Appeals of an order denying the petition for rehearing. If a timely
petition for review is filed by a party, any other party may file a petition for review
within 10 days after the first petition for review was filed.
TAKING APPEAL; RECORD ON APPEAL --
COMPOSITION AND SETTLEMENT
(c) Composition of Record on Appeal. The record on appeal in
appeals from any agency shall contain:
(1) an index of the contents of the record, which shall appear as the first page
(2) a statement identifying the commission or agency from whose judgment, order of
opinion appeal is taken, the session at which the judgment, order or opinion was rendered,
or if rendered out of session, the time and place of rendition, and the party appealing;
(3) a copy of the summons with return, notice of hearing, or other papers
showing jurisdiction of the agency over persons or property sought to be bound in the
proceeding, or a statement showing same;
(4) copies of all other notices, pleadings, petitions, or other papers required
by law or rule of the agency, including a Form 44 for all cases which originate from
the Industrial Commission,to be filed with the agency to present and define the matter
(5) a copy of any findings of fact and conclusions of law and a copy of the
order, award, decision, or other determination of the agency from which appeal was taken;
(6) so much of the evidence taken before the agency or before any division,
commissioner, deputy commissioner, or hearing officer of the agency, set out in the form
provided in Rule 9(c)(1), as is necessary for an understanding of all errors assigned, or
a statement specifying that the verbatim transcript of proceedings is being filed with the
record pursuant to Rule 9(c)(2) and (3);
(7) where the agency has reviewed a record of proceedings before a division, or
an individual commissioner, deputy commissioner, or hearing officer of the agency, copies
of all items included in the record filed with the agency which are necessary for an
understanding of all errors assigned;
(8) copies of all other papers filed and statements of all other proceedings had
before the agency or any of its individual commissioners, deputies, or divisions which are
necessary to an understanding of all errors assigned unless they appear in the verbatim
transcript of proceedings which is being filed pursuant to Rule 9(c)(2) and (3);
(9) a copy of the notice of appeal from the agency, of all orders establishing
time limits relative to the perfecting of the appeal, of any order finding a party to the
appeal to be a civil pauper, and of any agreement, notice of approval, or order settling
the record on appeal and settling the verbatim transcript of proceedings if one is filed
pursuant to Rule 9(c)(2) and (3); and
(10) assignments of error to the actions of the agency, set out as provided in Rule 10.
(c) Same; Filing and Service; Content. The petition shall be
filed without unreasonable delay and shall be accompanied by proof of service upon all
other parties. For cases which arise from the Industrial Commission, a copy of the
petition shall be served on the Chairman of the Industrial Commission. The petition
shall contain a statement of the facts necessary to an understanding of the issues
presented by the application; a statement of the reasons why the writ should issue; and
certified copies of the judgment, order or opinion or parts of the record which may be
essential to an understanding of the matters set forth in the petition. The petition shall
be verified by counsel or the petitioner. Upon receipt of the prescribed docket fee, the
clerk will docket the petition.
(f) Petition for Writ in Post Conviction Matters - Death Penalty Cases.
A petition for writ of certiorari to review orders of the trial court
on motions for appropriate relief in death penalty cases shall be filed in the
Supreme Court within 60 days after delivery of the transcript of the hearing on the motion
for appropriate relief to the petitioning party. The responding party shall file its
response within 30 days of service of the petition.
(e) Temporary Stay. Upon the filing of a petition for
supersedeas, the applicant may apply, either within the petition or by separate paper, for
an order temporarily staying enforcement or execution of the judgment, order, or other
determination pending decision by the court upon the petition for supersedeas. If
application is made by separate paper, it shall be filed and served in the manner provided
for the petition for supersedeas in Rule 23(c). The court for good cause shown in such a
petition for temporary stay may issue such an order ex parte. In capital cases, such
stay, if granted shall remain in effect until the period for filing a petition for
certiorari in the United States Supreme Court has passed without a petition being filed,
or until certiorari on a timely filed petition has been denied by that Court. At that
time, the stay shall automatically dissolve.
PENALTIES FOR FAILURE TO COMPLY WITH RULES
(a) Failure of Appellant to Take Timely Action. If after
giving notice of appeal from any court, commission, or commissioner the appellant shall
fail within the times allowed by these rules or by order of court to take any action
required to present the appeal for decision, the appeal may on motion of any other party
be dismissed. Prior to the filing of an appeal in an appellate court motions to dismiss
are made to the court, commission, or commissioner from which appeal has been taken; after
an appeal has been
docketed filed in an appellate court motions to
dismiss are made to that court. Motions to dismiss shall be supported by affidavits or
certified copies of docket entries which show the failure to take timely action or
otherwise perfect the appeal, and shall be allowed unless compliance or a waiver thereof
is shown on the record, or unless the appellee shall consent to action out of time, or
unless the court for good cause shall permit the action to be taken out of time.
FILING AND SERVICE
(b) Service of All Papers Required. Copies of all papers
filed by any party and not required by these rules to be served by the clerk shall, at or
before the time of filing, be served on all other parties to the appeal. For cases
which arise from the Industrial Commission, a copy shall be served on the Chairman of the
(g) Form of Papers; Copies. Papers presented to either
appellate court for filing shall be letter size (8-1/2 x 11")
with the exception of wills and exhibits. Documents filed in the trial division prior to
July 1, 1982, may be included in records on appeal whether they are letter size or legal
size (8-1/2 x 14"). All printed matter must appear in at least
11 point type on unglazed white paper of 16 - 20 pound substance so as to produce a clear,
black image, leaving a margin of approximately one inch on each side. The body of text
shall be presented with double spacing between each line of text. The format of all papers
presented for filing shall follow the instructions found in the Appendixes to these
All documents presented to either appellate court other than records on appeal, which
in this respect are governed by Appellate Rule 9, shall, unless they are less than
10 pages in length, be preceded by a subject index of the matter contained therein,
with page references, and a table of authorities, i.e., cases (alphabetically arranged),
constitutional provisions, statutes, and text books cited, with references to the pages
where they are cited.
The body of the document shall at its close bear the printed name, post office address,
and telephone number of counsel of record, and in addition, at the appropriate place, the
manuscript signature of counsel of record.
TIMETABLE OF APPEALS FROM TRIAL DIVISION
UNDER ARTICLE II OF THE RULES OF APPELLATE PROCEDURE
|Action||Time (days)||From date of||Rule Ref.|
|Requesting judicial settlement of record||10||last day within which an appellee
APPENDIX D. FORMS
2. APPEAL ENTRIES
The appeal entries are appropriate as a ready means of providing in composite form for
the record on appeal:
1) the entry required by App. Rule 9
(b) (a) showing appeal duly
taken by written oral notice under App. Rule 3 (a)
(b) or 4(a) ; and 2) judicial approval of the undertaking on appeal required by App. Rule 6; and
3)2) the entry required by App. Rule 9 (b) (a)
showing any judicial extension of time for serving proposed record on appeal under App.
These entries of record may also be made separately.
Where appeal is taken by filing and serving written notice after the term of court, a
copy of the notice with filing date and proof of service is appropriate as the record
Per Tables 1, 2, and 3 of Appendix C, Such "appeal
entries" are appropriately included in the record on appeal following the judgment
from which appeal is taken.
The judge's signature, while not technically required, is traditional and serves as
authentication of the substance of the entries.
(Defendant) gave due notice of appeal to the (Court of Appeals)(Supreme Court).
bond in the sum of $ adjudged to be
sufficient. (Defendant) shall have 10 days in which to order the transcript, or,
in the alternative, 35 days in which to serve a proposed record on appeal on the appellee.
(Plaintiff) is allowed 15 21 days thereafter within which to serve
objections or a proposed alternative record on appeal.
This day of
, 19 .
****** END OF RULE CHANGES *******
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