Under Appellate Rule 10, the general rule is that appellate courts only decide issues properly raised, argued, and decided in the trial tribunal.  But exceptions to this general rule exist for issues considered so fundamental that they are automatically preserved for appellate review by rule, law, or case authority.  Based on this second principle, the Supreme Court of North Carolina recently upheld the constitutionality of N.C.Continue Reading

The COVID-19 pandemic has forced many changes in the legal profession over the last 10 months.  Those receiving the most focus have been, for obvious reasons, things like remote proceedings such as telephonic hearings and video conference arguments in trial and appellate courts.  We’ve even heard of remote jury trials.  But there have also been many less publicized departures from the norm required by this unprecedented public health crisis. … Continue Reading

The recent opinion of the North Carolina Court of Appeals in M.E. v. T.J., No. COA18-1045 has more twists than a Chubby Checker look-alike contest. The opinion is long and the facts and procedure are somewhat convoluted, but here’s a bare-bones synopsis.

Plaintiff and defendant, both women, were dating. When plaintiff decided to end the relationship, defendant allegedly became abusive.… Continue Reading

Those who have known me for any length of time know that for more than a decade I have really, really wanted the Supreme Court to give appellate practitioners clarification on how various transcript-related issues should work in practice.  Today, the Supreme Court of North Carolina granted that wish by amending the North Carolina Rules of Appellate Procedure.

For cases appealed on or after January 1, 2021, Appellate Rule 7 has been completely rewritten.   … Continue Reading

Matt blogged last week on Doe v. City of Charlotte, in which we were given multiple lessons in both how to and how not to handle an appeal.  Authoring Judge Dietz’s pre-bench experience as an appellate practitioner shows.

This month, we were also treated to State v. Smith (No 119PA18, filed 14 August 2020), a helpful opinion from the Supreme Court detailing an aspect of issue preservation in criminal cases that the Court addressed earlier this year in State v.Continue Reading

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

As previously reported here, the Supreme Court of North Carolina at the end of March issued an order extending all appellate court deadlines falling between March 27 and April 30, 2020 for 60 days.

As a service to the bar, the Clerks of the Supreme Court and Court of Appeals have posted answers to some of the most frequently asked questions they have received about the order. … Continue Reading

Last Amish Horse and Carriageweek, the Court of Appeals returned to a general question that this blog has addressed before: When is a Notice of Appeal Filing Deadline or Requirement Jurisdictional?  In this instance, the specific issue was whether the Court has jurisdiction over an appeal when a notice of appeal was filed and the record on appeal was filed and the appeal docketed before the trial court entered the order that was being appealed.… Continue Reading

This week, the Court of Appeals reiterated the bounds of Rule 54(b) certification, highlighting that the language of the rule—which allows a party to immediately appeal from “a final judgment as to one or more but fewer than all of the claims or parties”—is only applicable when a judgment is, in fact, final.

In Lennar Carolinas, LLC v. County of Union, the Court of Appeals was asked to review the denial of a summary judgment motion by the County.… Continue Reading

In an earlier post, Beth detailed best practices for when a Rule 59 motion will successfully toll the 30-day appeal period under Appellate Rule 3.  See here.  To recap, tolling requires a “proper” Rule 59 motion—which means meeting a litany of requirements, including that the motion: (i) seeks relief from a final judgment; (ii) generally applies only to post-trial judgments; (iii) seeks relief pursuant to one or more grounds listed in Rule 59(a); (iv) seeks a valid form of relief from the contested final judgment; and (v) does not reargue matters already decided by the trial court. … Continue Reading