In its latest round of opinions, the Court of Appeals applies principles regarding possible statutory bases to support the award of attorneys’ fees for appellate matters, the futility of raising new arguments on appeal, and the effect of violating non-jurisdictional rules of appellate procedure.  The grab-bag of cases described below doesn’t state any new rules, but appellate practitioners would be well-served to mind these refreshers.

Attorneys’ Fees.  In McKinnon v. CV Industries, Inc., the Court examined an award of attorneys’ fees to a defendant for legal fees incurred in the defense of an appeal before the Court of Appeals and a petition for discretionary review before the Supreme Court of North Carolina.  The Court took exception to one of the purported bases for the award relied upon by the trial court, N.C. Gen. Stat. § 6-21.5.  Citing its decision in Hill v. Hill, the Court reiterated that this particular statute is confined only to the trial division and that “awards of attorney’s fees pursuant to § 6-21.5 may only encompass fees incurred at the trial level.” (emphasis in original).  The other statutory basis for appellate attorneys’ fees identified by the trial court, N.C. Gen. Stat. § 75-16.1, could support the award to the defendant but only to the extent the award concerned the plaintiff’s Chapter 75 claim. The Court ultimately remanded for additional findings because the trial court’s award lacked specific findings of fact on various issues required for appellate review.  McKinnon provides a good primer for when appellate attorneys’ fees can be awarded and how to structure attorneys’ fees to survive appellate review.

New Arguments on Appeal.  Repeating the axiom that the law does not permit parties to “swap horses between courts in order to get a better mount” on appeal, the Court dismissed the defendant’s legal arguments that were raised for the first time on appeal in T.D. Bank, N.A. v. McGee.  The Court is near steadfast in applying its rule that “Only those pleadings and other materials that have been considered by the trial court for purposes of summary judgment and that appear in the record on appeal are subject to appellate review.” In other words, creative appellant practitioners should heed the Court’s reminder: you’re stuck with the record you rode in on.

Violations of Appellate Rules.  As we’ve discussed in previous posts, the Appellate Rules can be a minefield for the uninitiated and the initiated, alike.  In Barrett v. SSC Charlotte Operating Company, LLC, the Court considered a motion to dismiss the plaintiff’s appeal for alleged violations of N.C.R. App. P. 11(c) stemming from plaintiff’s “apparent failure to request judicial settlement of the record on appeal in a timely manner and to obtain the entry of an order settling the record on appeal in a timely manner.”  Exercising its discretion, the Court decided to overlook these “non-jurisdictional rule violations” and examine the appeal on its merits because the violations had not hampered the Court’s ability to review the case and because the defendants had not been prejudiced. Still, the Court admonished plaintiff to follow “all applicable provisions” of the Rules of Appellate Procedure in future litigation.

— Eric Snider