One sentence of Rule 3(c) of the North Carolina Rules of Appellate Procedure provides: “If timely notice of appeal is filed and served by a party, any other party may file and serve a notice of appeal within ten days after the first notice of appeal was served on such party.”
If one party appeals from a final judgment, what can be included in the other party’s cross-notice of appeal? Any interlocutory order? Or only the orders identified by the original appellant?
According to the Court of Appeals, the answer is the latter. In Slaughter v. Slaughter, a divorce proceeding, the trial court entered three different orders: Order 1 on 31 March 2016, Order 2 the next day on 1 April 2016, and Order 3 also on 1 April 2016. Within thirty days, the husband filed a notice of appeal from Order 1 and Order 2. Within ten days of the notice of appeal (but 32 days after entry of the orders), the wife filed a notice of cross-appeal from Order 2 and Order 3.
In a unanimous, published opinion, the Court of Appeals on Tuesday held that the cross-appeal from Order 3 was untimely. The Court relied on a 1990 opinion, which held that the cross-appeal provision in Rule 3(c) “merely contemplates an additional, extended time period for a response only from other parties to that same appeal.” Surratt v. Newton, 99 N.C. App. 396, 402, 393 S.E.2d 554, 557 (1990) (emphasis added). Because the husband did not seek to appeal from Order 3, the wife’s cross-appeal from that order could not be the “same appeal.”
Thus, the wife should have filed her own notice of appeal within thirty days of the entry of Order 3. Because she did not do so, the trial court improperly denied the husband’s motion to dismiss the cross-appeal.
The Court of Appeals “strongly admonish[ed] parties who are considering appeal to act promptly to preserve their rights, even if they subsequently choose to voluntarily dismiss their appeals, rather than to rely on the magnanimity of opposing counsel.” This admonishment could be interpreted as being at odds with the Commentary to the Appellate Rules (adopted by the Supreme Court in 1975), which explains that the cross-appeal provision
avoids any further need for the so-called “protective” appeal by a party who is content to abide the judgment unless some other party takes appeal, but who wants to go up as an appellant if this transpires, and who therefore has been forced to give notice of appeal against the possibility that another party will take appeal at the last moment. This awkwardness is avoided by the provision that the timely taking of appeal by any party automatically gives all other parties 10 additional days from that time to note appeal.
So what do you think? Is the holding in Slaughter inconsistent with the intent of the cross-appeal rule? Or is the decision, as the Court stated, “firmly rooted in the interests of fairness” because it allows each party to decide whether and when to appeal?