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

Unlike some sites, this blog does not focus heavily on decisions from the U.S. Supreme Court. But last Friday’s decision in Ortiz v. United States on the breadth of the jurisdiction of the Supreme Court is a must-read for anyone interested in appellate practice and procedure.

As background, the petitioner in Ortiz was a member of the military who was convicted of a crime as part of a military court martial.… 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

In light of Matt’s post from yesterday, does anyone perceive an uptick in dismissals of appeals for notice of appeal problems? Are North Carolina lawyers unique in their propensity to screw up notices of appeal?  Are dismissals for notice of appeal violations common in other appellate systems?  Let’s say, for instance, the federal appellate courts?  If not, why?  Matt and I have been discussing and debating these questions for a few months. … Continue Reading

Under Civil Procedure Rule 54(b), a trial court “may enter a final judgment as to [fewer] than all the claims [ ] only if there is no just reason for delay and it is so determined in the judgment.” N.C. R. Civ. P. 54(b) (emphasis added).

Some opinions suggest that failing to include the “magic words” that there is “no just reason for delay” in the Rule 54(b) certification order renders the certification jurisdictionally defective.… Continue Reading

Those familiar with North Carolina appellate jurisprudence are well aware that what constitutes “a substantial right” for the purposes of conferring jurisdiction over an interlocutory order is an issue that is routinely addressed, oftentimes at length, in North Carolina appellate opinions.   So it was interesting to see the Supreme Court of North Carolina’s opinion in Krawiec v. Manly (released last Friday) in which the Court invoked substantial right jurisdiction over an interlocutory order from the North Carolina Business Court (under N.C.G.S.Continue Reading

Last week’s batch of opinions from the Court of Appeals includes a procedurally complicated case in which the court granted a writ of certiorari–only to dismiss a large portion of the appeal “as untimely and interlocutory.”  The opinion shines light on several faulty presumptions that can trip up an appeal. Intrigued?  Read on.

In Engility v. Nell, the defendants sought review of two orders:  (1) a February 2017 order granting a motion to quash and imposing sanctions, and (2) a Rule 60 order denying relief as to the February 2017 order because the defendants contended that they had not received adequate notice and an opportunity to be heard on the motion to quash.… Continue Reading

The North Carolina Court of Appeals has started off 2018 with a trend of clarification.  As we noted last week, in this year’s first batch of opinions the Court clarified the applicable standard of review for a trial court’s decision on whether a party has waived a contractual right to arbitration. And now after the year’s second batch of opinions was released earlier this week, appellate practitioners have further clarity: if the record on appeal does not contain a certificate of service for the order or judgment being appealed and the appellee seeks to dismiss that appeal on the grounds that it was untimely, the burden of showing when actual notice was received is on the appellee. … Continue Reading

If you don’t put postage stamps on your holiday cards, they aren’t going to make it to their intended destinations. Similarly, if you don’t have a file stamp on the order you are attempting to appeal, you aren’t going to get a ruling on the merits from the appellate court.  At least that’s what the Court of Appeals held in its opinion on Tuesday in McKinney v.Continue Reading

In the Court of Appeals’ latest batch of opinions, Beroth Oil Co. v. N.C. Department of Transportation, addressed the long-running issue of the applicability of the Map Act.  As you may have guessed, this show probably hasn’t run its course.

Beroth Oil arises out of the Map Act, which the General Assembly passed in 1987.  Under the Map Act, the Department of Transportation can file corridor maps or plats in places where it plans to construct a road. … Continue Reading