Tuesday’s batch of opinions from the Court of Appeals contained a smorgasbord of jurisdictional issues pertaining to interlocutory appeals. In no particular order:

Department of Transportation v. Riddle

This condemnation proceeding involved a partial taking by the North Carolina Department of Transportation (“DOT”). The Riddles owned a parcel of land that they had subdivided into seven separate lots. The DOT originally commenced the action by filing a complaint and declaration of taking for portions of Lot 2 and Lot 7. … Continue Reading

In its final set of opinions from 2016, the North Carolina Court of Appeals provided some helpful reminders for appellate practitioners.

1. Unless some other exception applies, you may appeal from an interlocutory order only if it affects a substantial right. In Pass v. Brown, the Court reminded us that an appellant must identify a substantial right affected by each issue, not by an immediate appeal as a whole.… Continue Reading

The Fourth Circuit issued an interesting, unpublished opinion on Tuesday in Kelly v. Conner  in which it sua sponte dismissed a party’s appeal for want of jurisdiction and remanded to the district court for further proceedings.  While this result alone is not remarkable, the underlying procedural history and the result of the remand makes the case somewhat unique. Kelly involved a multi-count complaint against 10 defendants. … Continue Reading

Last week I wrote about the Court of Appeals’ holding in  SED Holdings, LLC v. 3 Star Properties, LLC regarding the jurisdiction of the trial court while an interlocutory appeal is pending.  See here.  A few weeks prior, before the SED II opinion was released, Mack Sperling provided some excellent insight on his blog as to what was happening in the trial court in SED and how the court’s jurisdiction was impacted by the Petition for Discretionary Review that defendants had filed (and that was subsequently allowed) regarding the Court of Appeals’ decision in SED I. … Continue Reading

There are few concepts that are as important to our nation’s jurisprudence as that of jurisdiction. As stated by the Supreme Court of the United States, “Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them . . . .” Rhode Island v. Massachusetts, 37 U.S.… Continue Reading

You should always file your notice of appeal as soon as possible, right? Wrong. This is one instance in which being early can actually be detrimental to your client’s rights. In Mannise v. Harrell, the Court of Appeals determined that a notice of appeal filed too early was improper and could only be reviewed by writ of certiorari.

The case involved a domestic dispute between two parents in which the defendant father moved to dismiss the action for lack of subject matter jurisdiction and personal jurisdiction.… Continue Reading

Protecting the attorney-client and work-product privileges can be painstaking at the trial court level. To preserve the right to seek appellate review of any adverse privilege determinations, however, the lawyer’s extra effort to be meticulous can pay off.

This summer, in Sessions v. Sloane, the Court of Appeals issued a tour de force of how privilege issues should be presented at the trial court level, and how those issues can be preserved for appeal. … Continue Reading

A Petition for Writ of Certiorari continues to be the most powerful tool in the Supreme Court’s arsenal.  Last Friday, the North Carolina Supreme Court used its certiorari authority to revive an appeal involving the State Bar and a sitting superior court judge.  The Court did so six months after the appeal was dismissed by the Court of Appeals, and four months after it had declined to issue a PDR.… 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