The fine print to the Business Court Modernization Act poses a jurisdictional trap for those wishing to appeal from a Business Court order.  Signed into law on August 6, 2014, the Act made a number of changes for Business Court cases and otherwise, as we have discussed before.

One of the biggest changes is the provision of direct appeals from the Business Court to the Supreme Court of North Carolina, now codified at N.C. Gen. Stat. 7A-27(a)(2), (3).  Here’s the catch:  that change became effective October 1, 2014, and applies only “to actions designated as mandatory complex business cases on or after that date.”  If your Business Court case was designated before October 1, 2014, the old version of N.C. Gen. Stat. 7A-27 controls your case, providing for direct appeal to the North Carolina Court of Appeals under N.C. Gen. Stat. 7A-27(b).

The problem here is that the effective date is not reprinted or explained in the commonly available sources.  If you pull N.C. Gen. Stat. 7A-27 from the General Assembly’s website, you’ll see this annotation:  “2014-102, s. 1.”  That doesn’t explain the effective date, though it tells you where to look.  Westlaw provides a note:  “S.L. 2014-102, s 1, eff. Oct. 1, 2014,” which, by providing more information, is unintentionally misleading.  In short, without pulling the session law (or reading this blog!), a reader is not put on notice of the significant consequences of these latest statutory revisions.

Moreover, it is still important to appeal to the right court.  Although Dogwood v. White Oak Transp. made many appellate mistakes forgivable, jurisdictional mistakes–including several relating to improper notices of appeal–remain dismissible offenses.  I’m not sure what the Court of Appeals would do if presented with an appeal that belonged in the Supreme Court, or vice versa.  I surely don’t want to find out first-hand.

So, when the time comes for your Business Court case to be appealed, dig up the initial Notice of Designation and check the date.  Your appeal may just depend on it.

–Matt Leerberg

h/t Nancy Schleifer