A lot of mistakes can be fixed, but those depriving an appellate court of jurisdiction are not usually among them.  Unless the appellate court deems the appeal to raise issues of great importance and to present a compelling case for reversal, jurisdictional errors are usually fatal.

Those exceptions are rare.  But this week, a panel of the North Carolina Court of Appeals found Doe v.Continue Reading

Can a party “manufacture” appellate jurisdiction for an otherwise interlocutory appeal through the voluntary dismissal of remaining claims?  That question was generally answered in the negative by the Supreme Court in 2017 in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017).  There, the Court held that  plaintiffs could not subvert the final-judgment requirement for appellate jurisdiction from 28 U.S.C.… 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

Our state appellate courts have long held that a timely notice of appeal is a jurisdictional requirement. See, e.g., State v. Patterson. (For an interesting discussion on this topic, see section 28.02[3] in Beth and Matt’s treatise.)

Federal courts, on the other hand, have taken a different approach. For example, the Supreme Court in 2017 clarified that unless prescribed by statute, a rule-based timeline for filing a notice of appeal is “not jurisdictional” but is instead a “mandatory claim-processing rule.”… Continue Reading

Time ClockNo, this post is not a tribute to David Ives. In many appellate cases, it really is all in the timing.

Some appellate rules regarding timing are easy to state. The deadlines to file a notice of appeal, an opening brief, and a petition for discretionary review are relatively straightforward.

But other timing issues are less obvious. The most recent set of opinions from the Court of Appeals addresses several of these thornier problems.… Continue Reading

As noted yesterday, the Supreme Court has been busy. Need further proof? How about the fact that the Supreme Court considered 279 “other matters” on Friday— a category that includes rulings on various substantive motions, PDRs, and writ petitions. By way of comparison, the number of “other matters” considered by the Supreme Court fell within the 134 to 182 range the last few times that opinions were released.… Continue Reading

A few weeks ago the North Carolina Court of Appeals plowed new ground: issuing the first opinion to cite Appellate Rule 38(b) since the Appellate Rules were adopted in 1975. This long-neglected rule was the catalyst for a published decision that dismissed sua sponte a substitute party’s appeal in Weishaupt-Smith v. Town of Banner Elk.

Here’s the background: American Towers first applied for a conditional use permit to construct a telecommunication tower in 2013.… Continue Reading

The federal corollary to the oft-blogged about “substantial right doctrine” in the North Carolina appellate courts is the “collateral order doctrine.”  As is the case under North Carolina law, the jurisdiction of the United States Circuit Courts of Appeals is generally limited to final decisions of the district court.  Therefore,  a federal appellate court ordinarily cannot review interlocutory orders.  But, as in North Carolina, there are exceptions. Continue Reading

In an opinion highlighting an interesting federal appellate jurisdictional issue, the Fourth Circuit on Monday vacated a “gag order” that had been entered by the district court.  That gag order, however, had already been vacated by the district court itself.  This raised the possibility that the Fourth Circuit was without jurisdiction to address the gag order, which had been challenged in the appellate court through a petition for a writ of mandamus. … Continue Reading

Hurricane Florence has brought flooding and other forms of misery to much of North Carolina, especially in the coastal and southeastern counties.

On Thursday, 13 September 2018, Chief Justice Martin issued a helping hand to attorneys in those areas. Pursuant to N.C.G.S. § 7A-39(b)(1) the Chief issued an emergency order  finding that “catastrophic conditions” existed in Beaufort, Brunswick, Carteret, Craven, Currituck, Dare, Hyde, Jones, New Hanover, Onslow, Pamlico, Pender, Sampson, and Tyrrell Counties. … Continue Reading