Thinking about proposing an alternative request for relief, asking for a clean win but informing the court that you would settle for lesser relief “in the alternative”?  What about saving your client some money and not including a hearing transcript in the record on appeal?  The following two cases may make you think twice about both decisions.

Yesterday in First Bank v. S&R Grandview, LLC, the North Carolina Court of Appeals provided us with a short refresher on how it determines whether to review an intermediate order not designated in a notice of appeal.  As the Court previously recognized in Yorke v. Novant Health, Inc., Section 1-278 of the North Carolina General Statutes provides the appellate courts with an avenue for obtaining jurisdiction over orders not included in a notice of appeal when: (1) the appellant timely objected to the order; (2) the order was interlocutory and not immediately appealable; and (3) the order involved the merits and necessarily affected the judgment.  The Court in First Bank dismissed two of the arguments presented on appeal for failing to satisfy the first and third prongs of Yorke.  Today’s practice tip comes from the Court’s analysis of the first prong—did the appellant timely object to the trial court’s order declaring the settlement agreement void as between the appellant and First Bank?

After concluding that the record contained no evidence that the appellant had explicitly objected to the settlement order, the Court of Appeals went on to consider whether the appellant had through more implicit means “made known” his objection or the action he desired at the hearing below.  The Court of Appeals explained that although at the hearing the appellant clearly communicated his preference on how the settlement agreement should be enforced, he also communicated an alternative request for relief (i.e., that the Court not enforce the settlement agreement as to him).  Since the trial court ultimately adopted his alternative request—a request he indicated would be acceptable, though not his first choice—the Court of Appeals found that he could not argue on appeal that such was an error.

Take away number one: be careful what you ask for.

The Court of Appeals also reminded us this week of the importance of including a transcript in the record on appeal in its decision in Foot Locker, Inc. v. Best.  The Court declined to consider the issue of equitable estoppel because nothing in the record showed that the issue had been raised before the trial court.  In a footnote, the Court commented on the absence of a hearing transcript, suggesting that it may have proceeded otherwise if the record had been complete.

Take away number two: make sure your record is complete.

We would like to extend a public thanks to longtime friend-of-the-blog John Bowers at Horack, Talley, Pharr & Lowndes, P.A. for sharing the above cases with us.

–Corinne Jones