Savvy appellate practitioners know that the appeal process should start long before a party files a notice of appeal. One of the early considerations should be the order or judgment that is entered by the trial court. In some situations (such as many orders granting motions to dismiss), it is to the winning party’s advantage to encourage the trial court to craft the order to be as “vanilla” as possible, so as not to create extra fodder for the losing party to challenge on appeal. But in other cases, a robust order can be helpful—or necessary—to defend against future appeal.
The Supreme Court of North Carolina recently released an opinion that highlights this situation. State ex rel. Utilities Comm’n v. Cooper (N.C. Apr. 12, 2013). Duke Energy sought permission from the state Utilities Commission to increase its rates, and various organizations opposed it. Some, but not all, of the groups entered a stipulation that specified an increase less than the amount requested by Duke. The commission eventually approved the increase from the non-unanimous stipulation and found that it was just and reasonable. Notably, the commission’s order summarized the testimony of four different expert witnesses about the appropriate rate but apparently did not rely on any of them.
By statute, the commissions’ orders must “be sufficient in detail to enable the court on appeal to determine the controverted questions presented in the proceedings.” Because the commission did not make sufficient findings of fact, the supreme court reversed the order and remanded the case.
The general rule, increasingly common in civil litigation, is that “[i]n all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law . . . .” N.C. R. Civ. P. 52(a)(1). Some statutes also specifically require findings of fact. See, e.g., N.C. Gen. Stat. § 150B-51(c) (contested cases under the Administrative Procedure Act); id. § 50-16.3A (alimony awards). Other requirements are judicially imposed. See, e.g., Novak v. Daigle (N.C. Ct. App. Apr. 2, 2013) (Rule 60(b) orders); Lawing v. Lawing (N.C. Ct. App. Mar. 19, 2013) (custody orders); Highsmith v. Clark (N.C. Ct. App. Mar. 5, 2013) (attorney fee awards).
Given these rules, prevailing parties in the trial court should take care to help the judge enter appropriate findings of fact and conclusions of law in situations where it is helpful or required. It may just become the dispositive issue down the appellate road.