Last year, my colleague Kip Nelson warned about the risks of failing to provide a fulsome “statement of the grounds for appellate review” in an appellant’s brief, as required by N.C. R. App. P. 28(b)(4).
In the deliciously named Larsen v. Black Diamond French Truffles, Inc. case from last year, the North Carolina Court of Appeals warned of the jurisdictional significance of failing to include this statement in an opening appellant’s brief. After all, the court reasoned, the appeal simply cannot proceed if the appellant has not explained why appellate jurisdiction exists in the first place.
Suppose, though, that the appellant did explain the jurisdictional basis for the appeal but did not do so until the reply brief. Wouldn’t that eliminate the jurisdictional problem and instead leave—at most—the non-jurisdictional error of raising an issue by reply brief that should have been raised in the opening brief?
“No,” the Court of Appeals said in Truffles, and “No,” the Court said again this week.
In Fagundes v. Ammons Development Group, Inc., the court faced almost the same problem as that already resolved in Truffles. The appellant noticed appeal from an order that resolved “one or more but fewer than all the claims or parties” but did not ask the trial court to certify the order as a final judgment under Rule 54(b). But oftentimes, such “potential Rule 54(b) orders” are also appealable because they affect a substantial right: the right to avoid the possibility of inconsistent verdicts in the trial that would occur on the remaining claims and the trial that would occur on the reinstated claims if an appeal taken after the first trial were successful. The appellant told the Court of Appeals as much—but not until its reply brief.
The Fagundes court dismissed the appeal. The appellant’s bare citation to N.C. Gen. Stat. § 7A-27(b) was not sufficient to explain why appellate jurisdiction lay.
The bottom line is the same as it was with Truffles: you must explain the basis for appellate jurisdiction in your opening brief. If you fail to do so, your appeal might be dismissed.
[Editor’s notes: (1) I choose to think of truffles as made of chocolate. (2) The bluebook rules for short cites may be disregarded whenever names of desserts would otherwise be omitted. ]