Appellate Rules Violations

Last Friday was a blockbuster appellate day for the Supreme Court of North Carolina. Not only did it effectively declare an appellate jurisdiction statute unconstitutional (see Matt’s blog post), but Justice Newby authored a concurring opinion inspired by “It’s a Wonderful Life.”  (“Was Old Man Potter simply morally corrupt or was he also guilty of a crime?”).

For North Carolina’s appellate defenders, however, Friday was not a wonderful day.… 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

Today, the Supreme Court issued its final batch of opinions and two sets of rules amendments for 2017.  We will bring you more information in the days that come, but below are some of the highlights.

New Year, New Rules:  North Carolina Rules of Appellate Procedure amended and recodified effective 1 January 2017.

A new set of Appellate Rules will reign in the New Year.… Continue Reading

About a month ago, the North Carolina Court of Appeals issued an unpublished opinion that underscored the importance of compliance with Appellate Rule 9(a), which provides that appeals from the trial division will be reviewed “solely upon the record on appeal, the verbatim transcript of the proceedings, if one is designated, and any other items filed pursuant to this Rule 9.” … Continue Reading

A case with a history of appellate rules issues, see here, can now add a few more to its tally.  In State v. Coxton the Court of Appeals originally dismissed a criminal defendant’s appeal for failure to give proper notice of appeal and further denied the defendant’s petition for writ of certiorari because it was filed more than eight months after the judgment being appealed from without any explanation for the delay.  … Continue Reading

In Chief Judge Gregory’s first published opinion since assuming his new role, the Fourth Circuit indicated yesterday that functional compliance with jurisdictional rules trumps formal compliance.  In Clark v. Cartledge, the Court addressed whether a pro se plaintiff’s filing of a request for an extension of time to request a certificate of appealability qualifies as the notice of appeal required by Rule 3 of the Federal Rules of Appellate Procedure when a formal notice of appeal was not timely filed. … Continue Reading

The notice of appeal is arguably the most important document in the life of an appeal.  After all, a proper notice of appeal “is a procedural appellate rule, required in order to give [an appellate court] jurisdiction to hear and decide a case.”  State v. McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 405 (1995).  And while perhaps the most commonly seen procedural issue regarding notices of appeal involves the timely filing of the notice (see here, here, and here), there are other traps to be aware of as well.  … Continue Reading

The state appellate rules are clear: your notice of appeal must “designate the judgment or order from which appeal is taken.”  N.C. R. App. P. 3(d).  So, if you want to appeal an interlocutory order, you identify it in the notice of appeal, and you have complied with the rule, right?

Apparently not.  In the unpublished opinion of Majerske v. Majerske, the Court of Appeals held that an appellant seeking to challenge an interlocutory order after entry of a final judgment must also designate the final judgment in the notice of appeal to confer appellate jurisdiction.… Continue Reading

When you are waiting on an decision from the North Carolina Court of Appeals, if you are like me, you anxiously scour the new opinions every other Tuesday morning.  And on such occasions, the next best thing to seeing a favorable ruling in your case is coming across a favorable opinion in another case on the exact same issue that the Court will be addressing in your case. … Continue Reading

I can’t pass up the opportunity to blog about an appellate case titled Don’t Do It, [Sic] Empire, LLC v. Tenntex, COA 15-938 (Mar. 1, 2016) ([sic] in original)—especially when that case involves a failure to preserve an issue for appellate review under Appellate Rule 10. I also feel compelled to write about the Court of Appeals’ published opinion in State v.Continue Reading