1) Have a right to appeal
In re P.K.M. involved a juvenile delinquency proceeding against a twelve-year-old boy who moved to suppress incriminating statements he had made to an investigating detective and a school’s resource officer. The trial court granted the motion to suppress, and the state sought to appeal. But the North Carolina Court of Appeals dismissed the appeal and explained that under the juvenile code, the state only has the right to appeal when a state statute is held unconstitutional or when an order terminates the prosecution. Because this order did not terminate the prosecution against P.K.M., the state had no statutory right to appeal. Like any other party, the state must walk a specific litigation path: “avenues of appeal are created by statute.”
2) Provide a ground for appellate review
The Court of Appeals likewise dismissed an appeal in the unpublished opinion of James S. Farrin, P.C. v. Perry, Perry & Perry, P.A. A woman initially hired the Law Offices of James Scott Farrin (JSF) to represent her in a workers compensation suit but eventually withdrew her consent from a settlement agreement and hired Perry, Perry & Perry, P.A. (PPP) instead. JSF brought suit against PPP for attorney fees to which JSF claimed it was entitled. The trial court granted JSF’s motion for summary judgment on all claims except one for unfair and deceptive trade practices. Because of that outstanding claim, any appeal was interlocutory. PPP sought to appeal, but its “grounds for appellate review” stated in its entirety:
Defendant-Appellant makes this appeal as a matter of right to the North Carolina Court of Appeals pursuant to N.C. Gen. Stat. § 7A-27(b) as the trial court’s judgment in this matter has affected a substantial right of the Defendant.
The Court of Appeals found this statement “wholly inadequate” and dismissed the appeal. The court reminded us that the grounds for appellate review in an interlocutory appeal must contain “sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.”
3) Cross your “t”s and dot your “i”s
A Union County trial court ordered a defendant, Mr. Fortney, to refrain from harassing, contacting, or communicating with a plaintiff, Ms. Winslow. Fortney moved to set aside the no-contact order, but the trial court denied the motion. Fortney filed a timely notice of appeal but took no further action. Almost a year later, the trial court renewed the order that was about to expire. Fortney filed another notice of appeal for that second order.
In its review, the Court of Appeals affirmed the long-standing principle that failure to include a notice of appeal in the appellate record is grounds for dismissal. Fortney failed to include the first notice of appeal in the record, and therefore his arguments relating to the initial no-contact order were dismissed. This dismissal was important because it was the real basis for Fortney’s attack on the no-contact order. The order could simply be renewed for “good cause,” and Fortney did not raise that argument on appeal. Thus, the court affirmed the renewal of the no-contact order.
Post script: a note for members of the bar
In State Bar of North Carolina v. Barrett, a grievance was filed with the state bar regarding Barrett’s involvement in a real estate transaction. Barrett did not respond to the state’s discovery requests but did respond to the subsequent order granting the bar’s motion to compel:
I reviewed your bogus Order to Compel. I will not be producing anything. In fact, I will not be in communication with any of you people ever again. . . . You have no power over me.
After the subsequent hearing before a Disciplinary Hearing Commission, the commission ordered disbarment. In spite of the attorney’s questionable rhetoric, however, the Court of Appeals reversed and found that her due process rights had been violated. Although the order of disbarment was reversed, attorneys should be cautious in how they respond to grievance procedures with the bar.