Divested of Jurisdiction? The Effect of Filing a Notice of Appeal While a Posttrial Tolling Motion Is Pending Before the Trial Court
What happens when there is a tolling motion under Rule 3 of the North Carolina Rules of Appellate Procedure pending before a trial court and a subsequent notice of appeal is filed? As the case law currently stands, depending on which of three tolling motions is pending, the trial court may be divested of jurisdiction to rule on the motion—a divestiture that could lead the appellate court to dismiss the appeal as untimely. This Article argues that the North Carolina courts have drawn arbitrary distinctions between the different tolling motions to determine whether a trial court is divested of jurisdiction. Instead, the North Carolina Rules of Appellate Procedure should be amended to conform with the approach laid out in the Federal Rules of Appellate Procedure, in which a trial court retains jurisdiction over a tolling motion even after a notice of appeal is filed and the notice of appeal does not become effective until there is an order disposing of the tolling motion.