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Copyright (c) 2003 North Carolina Law Review
North Carolina Law Review

ARTICLE: FUNCTUS OFFICIO: AUTHORITY OF THE TRIAL COURT AFTER NOTICE OF APPEAL

September, 2003

81 N.C.L. Rev. 2331

Author

Thomas L. Fowler*

Excerpt



Introduction
 

 
Upon filing of a notice of appeal, a trial court in North Carolina is divested of jurisdiction with regard to all matters embraced within or affected by the judgment which is the subject of the appeal. 1
 
The long-standing, oft-cited general rule is that the trial court is divested of jurisdiction when a party gives notice of appeal and, pending the appeal, the trial judge is functus officio. 2 The rule has been applied to hold that after a party has given notice of appeal of the trial court's judgment, the trial court is without jurisdiction to consider the prevailing party's motion for attorney fees. 3 Similarly, after appeal from a judgment, the trial court has been held without jurisdiction, pending the appeal, to hold a party in contempt for failing to comply with the judgment. 4 And, clearly, if a party appeals an immediately appealable interlocutory order, the trial court does not have authority, pending the appeal, to proceed with the trial of the matter. 5

Nevertheless, the general rule, as stated, is somewhat misleading. For instance, there are many exceptions to this rule, where even after notice of appeal is given, the trial court retains authority to make rulings in the matter. Also, in the case of most appeals, i.e., appeals from final judgments, the trial court is arguably functus officio not so much because of the notice of appeal but because, having rendered its final judgment, 6 the trial ...
 
 
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