Appellate Briefs

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Last year, I blogged about State v. Ellis where a passing motorist gave a Highway Patrol trooper the middle-finger salute and was arrested for his trouble.  A divided Court of Appeals allowed the defendant’s conviction to stand.  The case made it to the Supreme Court, which recently issued an opinion reversing the conviction.

A quick recap of our story.  A trooper was assisting motorists when he noticed that the passenger in a car driving by had extended his hand out the window and was waving. … Continue Reading

Back in March, the Court of Appeals in Ramsey v. Ramsey dismissed a party’s appeal for cumulative non-jurisdictional violations that the Court described as “gross and substantial noncompliance with the North Carolina Rules of Appellate Procedure.” (See prior posts on Ramsey here and here.)  On Tuesday, in K2HN Construction, NC, LLC v. Five D Contractors, Inc., the Court dismissed another appeal that had a tortured relationship with the State’s appellate rules. … Continue Reading

On Friday, the Supreme Court displayed how busy it has been this summer by releasing 17 authored opinions.  Justice Per Curiam (who is fond of affirming/reversing “for the reasons stated in the Court of Appeals” majority/dissent) was conspicuously absent.  Justice Earls and Justice Newby vied for the title of “Most Prolific Dissenter.”  And the Court released its first three opinions directly reviewing trial tribunal orders terminating parental rights—and for those wondering, all three opinions were decided by the Supreme Court by published opinion, but without oral argument.… Continue Reading

Back in July, the Court of Appeals issued a published opinion in In re L.V. dismissing an appeal from an order terminating parental rights after the parent’s attorney filed a no-merit brief. The parent filed a motion for en banc rehearing, pursuant to new Appellate Rule 31.1, but the motion was denied. After the rehearing motion was filed, the court did modify the opinion slightly to correct quotation of a previous opinion.… Continue Reading

At first blush, it might not seem surprising that the Court of Appeals would dismiss an appeal if “[n]o issues have been argued or preserved for review.” But what is surprising is the fact that the Court reached that conclusion in a published opinion and, in doing so, made a significant change to the jurisprudence of cases arising under Rule 3.1… Continue Reading

There is perhaps no truer aphorism of appellate jurisdiction than this: The substantial right doctrine is more easily stated than applied.  In light of the Court of Appeals’ opinion last Tuesday in Beasley v. Beasley, litigants should consider how (or even whether) the substantial right test interacts with other jurisdictional statutes authorizing interlocutory appellate review.

By way of background, N.C.… Continue Reading

Proofreading is tedious.  And no matter how many times you proofread a brief, you inevitably spot a hidden “misstate” about two seconds after you file it.  If you have read my blog posts long enough, you know that perfection is a noble, but unobtainable, goal.

However, next time someone suggests that proofing (or re-proofing) is not a valuable exercise, take a look at State v.… Continue Reading

On July 10, 2017, Chief Judge Wood of the Seventh Circuit Court of Appeals issued a curious opinion that should serve as a reminder not only to practitioners in that Circuit, but to all attorneys who regularly file documents with a court: local rules exist for a reason.

Judge Wood consolidated two cases, Baez-Sanchez v. Sessions and Bishop v. Air Line Pilots Association, International, in order to issue an opinion addressing litigants’ repeated failure to follow the Seventh Circuit’s local rules regarding jurisdictional statements.… Continue Reading

The Supreme Court stated in Dogwood v. White Oak, 362 N.C. 191, 657 S.E.2d 361 (2008), that noncompliance with nonjurisdictional rules normally should not lead to the dismissal of an appeal.  The Dogwood Court also stated that the requirements of Appellate Rule 28(b), which govern the content of an appellant’s brief, are generally nonjurisdictional.  Nonetheless, in Edwards v. Foley the Court of Appeals held that the appellants’ failure to include in their principal brief a complete statement of appellate jurisdiction (as required by Appellate Rule 28(b)(4)) was a jurisdictional violation that required dismissal of the appeal—at least for interlocutory appeals.… Continue Reading

Less than a year ago, we blogged on a CLE presentation by Court of Appeals Judge Rich Dietz on typography in appellate briefs.  At the time, Judge Dietz urged appellate practitioners to abandon the use of Courier and Times New Roman fonts (the two fonts specifically endorsed by the North Carolina Rules of Appellate Procedure) in favor of the Century font family (the font used by North Carolina’s appellate courts when they publish their opinions).… Continue Reading