One sentence of Rule 3(c) of the North Carolina Rules of Appellate Procedure provides: “If timely notice of appeal is filed and served by a party, any other party may file and serve a notice of appeal within ten days after the first notice of appeal was served on such party.”
If one party appeals from a final judgment, what can be included in the other party’s cross-notice of appeal?… Continue Reading
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
On Tuesday, the North Carolina Court of Appeals issued an opinion in Jackson/Hill Aviation, Inc. v. Town of Ocean Isle that reaffirmed the rule that North Carolina courts “cannot take judicial notice of municipal ordinances.” The practical effect of that rule, as played out in Jackson/Hill Aviation, is that unless a municipal ordinance is specifically mentioned in a plaintiff’s complaint, a defendant cannot use that ordinance to defeat the plaintiff’s complaint on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. … Continue Reading
Most attorneys have had a least one unfavorable final judgment entered before trial. The attorney may feel that the trial court completely misunderstood her argument. Perhaps the trial court entered a summary judgment order that missed a key appellate case. Or perhaps the trial court issued a Rule 12(b)(6) dismissal that appeared inconsistent with an earlier ruling. The natural inclination is to devise a motion that will give the trial court the opportunity to fix its mistakes without having to take an appeal. … Continue Reading
Savvy practitioners know that some post-trial motions toll the deadline for filing a notice of appeal, but motions brought under Rule 60 of the Rules of Civil Procedure do not. So what happens when a trial court rules on a Rule 60 motion after the final judgment’s appellate deadline? If the final judgment was not appealed, can a party appeal from the Rule 60 decision?… Continue Reading
A few months ago, Carrie blogged about the dismissal of the State’s appeal by the Court of Appeals in North Carolina State Board of Education v. State of North Carolina & North Carolina Rules Review Commission. A substantial development occurred in this case in the Supreme Court on Thursday.
As discussed previously, the General Assembly amended section 7A-27 and other statutes to provide special trial and appeal pathways for facial constitutional challenges to a statute: 1) initial review by a three-judge panel, and 2) direct appeal to the Supreme Court if a law is declared facially invalid. … 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 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
Almost two years ago, my colleague Matt Leerberg wrote about the Court of Appeals’ decision in Can Am South, LLC v. North Carolina and the potential implications of that decision:
… Continue ReadingRelying on prior case law, the Court of Appeals dismissed the State’s appeal of the order to the extent its sovereign immunity defense was based on Rule 12(b)(1) (subject matter jurisdiction) but allowed the appeal of the order to the extent it was based on Rule 12(b)(2) (personal jurisdiction).
How is that possible? The scenario is actually quite simple:
Timely Filed Notice of Appeal + Timely Date on Certificate of Service + Untimely Postmark Date.
Rule 3(a) of the North Carolina Rules of Appellate Procedure sets forth the rule for “Filing the Notice of Appeal.” A timely filed notice of appeal, however, does not always equate a timely noticed appeal. … Continue Reading