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

“It is axiomatic that if, during the course of litigation, an action becomes moot, it should usually be dismissed.” In re Peoples, 296 N.C. 109, 148, 250 S.E.2d 890, 912 (1978).

Key word in the above quote? “Usually.”

In an opinion issued by the Court of Appeals on Tuesday in Anderson v. North Carolina State Board of Elections, the Court addressed the issue of mootness and when it is appropriate for a court to substantively rule on a case that has become technically moot.… Continue Reading

In June, we blogged on how a United States Supreme Court decision interpreting a North Carolina statute of repose had created some strange bedfellows in the General Assembly–which had almost immediately rushed to “clarify” North Carolina’s statute of repose.  The General Assembly’s “clarification” efforts were directed toward saving lawsuits pending in the Eleventh Circuit that had been brought by U.S. Marines and their families who had been exposed to toxic groundwater at Camp Lejeune.… Continue Reading

It was a pleasant surprise this morning to discover that the Maryland State Bar Association’s Maryland Appellate Blog was discussing a point of North Carolina appellate practice and procedure.

The impetus of the discussion was the United States Supreme Court’s recent decision in CTS Corp. v. Waldburger, where the Court was called on to decide whether the express preemption of state statutes of limitations set forth in the federal superfund environmental clean-up law known as CERCLA also applies to state statutes of repose. … Continue Reading

A few weeks ago, I blogged on the Business Court’s dismissal of an untimely notice of appeal.  Today, the Court of Appeals, in a thoughtful 32-page opinion by Judge Marty Geer called In re Duke Energy Corp., gently smacked the hand of the North Carolina Utilities Commission for dismissing an appeal for lack of standing.  So why would the Business Court have the authority to dismiss an appeal, but the Utilities Commission did not? … Continue Reading

Remember Dallas Cowboys defensive tackle Leon Lett? He was a talented player and a Super Bowl champion. Nevertheless, many now remember him as a cautionary tale about celebrating too early, before the job is complete.

Lett’s story is familiar to sports fans. Twenty-one years ago during the fourth quarter of Super Bowl XXVII between the Cowboys and the Buffalo Bills, Lett picked up a fumble at the Dallas 35-yard-line and began his sprint for the end-zone.… Continue Reading

Sometimes an appellant merely seeks reversal of a trial court’s decision. However, appellants should also remember that an appellate court will, on occasion, reverse a lower court and decide the case on its merits. The Supreme Court of North Carolina released an opinion last week that highlights the importance of this possibility.

IMT, Inc. v. City of Lumberton was a consolidation of four cases that all challenged the constitutionality of a change in Lumberton’s privilege license tax.… Continue Reading

When the Baltimore Ravens play the New England Patriots this weekend for the right to go to the Super Bowl, Ravens linebacker Mike McAdoo will be watching from the sideline. The second year pro is on injured reserve and has not played in a single NFL game in his two year career since being signed by the Ravens as a free agent, having taken an unconventional route to the NFL after a truncated collegiate playing career at the University of North Carolina.… Continue Reading