I signed up to teach a CLE about the basics of appellate practice. When I say “the basics,” I am not being modest. I will speak to the practitioners who never ever want to sign up for the username on the Court of Appeals’ website. Ever. The sort of warriors who win their trials the old-fashioned way—before the jury.
We will talk about the meaning of “interlocutory,” and where one goes to find the record, and why some of the published opinions are called “unpublished,” and why a “remand” is rarely a good thing. And if I get really ambitious we will learn to pronounce the word “certiorari.” It will be that sort of a CLE. If you are an appellate practitioner, I encourage you to stay away because I will not be able to reach my audience over your snoring.
I was preparing my CLE Powerpoint when my mother came in with the daily portion of unsolicited advice.
“Tell them an oral order is not actually an order,”—she said. “Tell them what a valid order is!”
“Mother,”—I said,—”they are lawyers. They can tell from a valid order. They read Rule 58.”
“As if,”—she said. Then she mumbled something about Marko and West and left the room.
North Carolina Court of Appeals yesterday returned an opinion, proving once again the oldest of all truths: Mom was right. I have to talk about Rule 58.
In re Thompson Court reversed 6.5 years worth of orders by two state court divisions. The Court of Appeals’ opinion also has the effect of unraveling a bankruptcy proceeding resting on these decisions. All of this could have been avoided with a simple refresher of Rule 58.
For six and a half years, the clerk and the trial court of In re Thompson built their “law of the case” on the shaky foundation of a 2007 un-filed writing signed by the court’s clerk. Remarkably, there is no dispute that this writing was “devoid of any stamp-file or other marking necessary to indicate a filing date.” Nevertheless, the trial division insisted that this writing somehow qualified as an order, or, as the trial court emphatically put it, a “clear[] rul[ing].” The clerk and the trial court shamed and punished the litigant who tried to push the simple proposition: a writing devoid of a file stamp can not operate as an order. It cannot be enforced. It cannot be appealed. The proposition did not take with the trial division.
This put the litigant in a tricky position. The un-filed 2007 writing could not be appealed, because it was not an order. But the lower court enforced it as an order and ultimately sanctioned the litigant’s attempts to protest, calling the protests “baseless” litigation.
Reversing the trial court’s sanctions and unraveling the slew of orders entered on the basis of the 2007 writing, the Court of Appeals reminded that under Rule 58 of the North Carolina Rules of Civil Procedure, and order must be a
Writing
Signed and
Filed
In contrast, the 2007 writing by the clerk in In re Thompson was only two-thirds on its way to becoming an order. In other words, not an order. A propos of non-orders, the Court of Appeals also reminded that the events like an oral pronouncement also were not real orders. Which means that oral pronouncements cannot be appealed, or enforced between the litigants. West v. Marko, 130 N.C. App. 751 (1998).
I am adding Rule 58 to my agenda. Jury whisperers who come to my class are not quitting until each of them can tell from a valid order. Maybe it will save someone a little trouble down the road. Who knows: maybe the CLE on basics can actually make a difference.