Appealing After Ten Days After Writ

[jyeh74]

My question involves landlord-tenant law in the State of: North Carolina

My tenant has had issues paying rent since Dec 2019 and took a few months to pay and always paid less than full rent. They completely stopped paying rent since March 2020. Property manager has tried contacting them but they have used the Covid situation to their advantage by ignoring property manager. Courts were closed for the past 5 months or so. When the courts finally opened up around July/Aug timeframe, property mgmt company filed for eviction. They were backed up due to all the landlords trying to evict tenants. He filed for writ in mid August and said that they tenant has 10 days to file an appeal. To my knowledge, no appeal was filed. I recently asked the property manager to give me an update on when the sheriff is going to evict the tenant as he said they were backed up. Property manager contacts me today with bad news. Apparently they tenant filed an appeal. I don’t understand how the attorneys or the property manager wasn’t aware of this until now? Doesn’t the tenant only have 10 days to file an appeal? Can whoever dropped the ball be liable? Because now we have to pay the property mgmt company fees to represent us in court for the appeal. Property manager is claiming the attorneys dropped the ball but I don’t understand how the attorneys can not know that the tenant filed an appeal.

Also, on what grounds can tenant win the appeal? Property mgmt company has been trying to contact tenant since March to pay rent and tenant has ignored them. Has not paid rent for six months now and counting. Now tenant wants to appeal the eviction? Can we override it somehow by proving there was no appeal within the 10 days somehow?

[Taxing Matters]

He filed for writ in mid August and said that they tenant has 10 days to file an appeal.

Filing for the writ is not the same thing as the writ being granted and the eviction ordered. There would be no need for the tenant to appeal anything until the trial court has made its final judgment in the case and ordered the eviction. So I'm going to assume that what you mean is that in mid August (around the 15th of the month) the court ordered the eviction. Is that in fact what occurred?

To my knowledge, no appeal was filed.

Apparently you do now know the tenant filed an appeal.

Doesn’t the tenant only have 10 days to file an appeal?

Yes. Note that the 10 days are 10 calendar days from the date the eviction was ordered, but if the last day of the 10 days falls on a day the court is closed then the last day to file is the next day that the courts are open.

Can whoever dropped the ball be liable?

Liable for what? You were granted the order of eviction mid-August. The tenant had 10 days to appeal. You posted here on August 28. Mid month is around the 15th, so your facts suggest that you have found out about the appeal only perhaps a few days past the 10 days for the tenant to appeal. So why is that such a big deal? What damages have you suffered from that?

Because now we have to pay the property mgmt company fees to represent us in court for the appeal.

You'd have to pay for the appeal regardless of whether you found out about it the minute it happened or a few days after it happened. So again, I'm having trouble seeing why the few days difference in learning of the appeal is such a problem.

Also, on what grounds can tenant win the appeal?

The tenant has to show the trial court made some error of law to win the appeal. If the tenant wins the appeal that does not mean the case is over; the case may well be returned to the trial court with orders that the trial proceed with the case correcting the error that the appeals court said was a problem. That may mean a new hearing. Note that generally the tenant is supposed to file a bond with payment of part of the rent owed as part of his appeal.

Can we override it somehow by proving there was no appeal within the 10 days somehow?

If the tenant did not file the appeal within the 10 day time frame your lawyers can file a motion to have the appeal dismissed.

[flyingron]

TM is mostly correct. A couple of additional points:

TM describes the appeal process from a normal court. In the case of evictions heard before magistrates (the usual method), the appeal may result in de novo hearings either in front of the magistrate or district court.

The landlord also has the option of filing a motion for dismissal in some circumstances (GS 7A-228(d)) prior to the appeal being heard.

[jyeh74]

The property manager filed the writ on 8/3 (early Aug not mid Aug) and says the tenant has 10 days after court to appeal. That would make the last day to file an appeal on 8/13. The fact that I just found out about the appeal on 8/28 makes it seem like this happened after 10 days.

[flyingron]

The property manager filed the writ on 8/3 (early Aug not mid Aug) and says the tenant has 10 days after court to appeal. That would make the last day to file an appeal on 8/13. The fact that I just found out about the appeal on 8/28 makes it seem like this happened after 10 days.

You're again being imprecise. The property manager doesn't file writs. Both you and TM are wrong about counting the days. They had until the 14th actually (you don't count the days that the writ was issued nor the last day). You do count weekends and holidays, since the time period is seven days or more. The 14th is a Friday. The only thing that may have extended it is if the court was not open on the expiration day (don't know what court you're even talking about). In that case, they have until the next day the court IS open.

The time limit only applies to when the person has to file with the clerk of the court. When you learned of it is immaterial.

[Taxing Matters]

Both you and TM are wrong about counting the days.

I am not wrong. All I said about counting the days is that the if the last day of the 10 days for filing falls on a day that the court is closed then the last day for filing then falls on the next day the court is open, which is correct. I certainly did not specify the exact day that the appeal had to be filed since I didn't know the day the court rendered the judgment of eviction.

They had until the 14th actually (you don't count the days that the writ was issued nor the last day).

That is not correct. North Carolina uses the same rule that many other jurisdictions do in counting calendar days. You ignore the first day (the day the judgment was rendered) but you don't otherwise exclude days, i.e. there is no excluding the last day, which would be a very odd rule indeed. Specifically, North Carolina GS 1A-1, Rule 6(a) states:

(a) Computation. - In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, including rules, orders or statutes respecting publication of notices, the day of the act, event, default or publication after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday when the courthouse is closed for transactions, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or a legal holiday when the courthouse is closed for transactions. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday.

(Bolding added.) You can see from what I put in bold the statute expressly states that last day is indeed counted. So if the judgment was rendered 8/3, the first of the 10 days starts on 8/4. If you do that counting the last day for filing the appeal is indeed 8/13, not 8/14 as you indicated.

The property manager filed the writ on 8/3 (early Aug not mid Aug) and says the tenant has 10 days after court to appeal. That would make the last day to file an appeal on 8/13. The fact that I just found out about the appeal on 8/28 makes it seem like this happened after 10 days.

If the appeal was filed late your lawyers may file to dismiss the appeal. If it was filed timely and you just found out about it about two weeks later, that delay in you finding out doesn't really change anything. Even if you were told right away, you'd be in the same boat: you have to oppose the appeal. So I ask again, what is the big deal about that? Why do you think the lawyers should liable for something?

[flyingron]

You are right about the day counting. Somewhere, I thought you had stated that the weekends didn't count, but it appears that it wasn't in this thread.