In an earlier post, Beth detailed best practices for when a Rule 59 motion will successfully toll the 30-day appeal period under Appellate Rule 3.  See here.  To recap, tolling requires a “proper” Rule 59 motion—which means meeting a litany of requirements, including that the motion: (i) seeks relief from a final judgment; (ii) generally applies only to post-trial judgments; (iii) seeks relief pursuant to one or more grounds listed in Rule 59(a); (iv) seeks a valid form of relief from the contested final judgment; and (v) does not reargue matters already decided by the trial court. … 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

scary pictureSince 2015, this blog has frequently discussed whether the text of Appellate Rule 21 places restrictions on the Court of Appeals’ authority to grant relief by writ of certiorari.   See here, here, here, here, herehere, and here.   The Supreme Court has also written frequently about whether the text of Appellate Rule 21 places restrictions on the Court of Appeals’ discretionary authority to grant relief by writ of certiorari.… Continue Reading

I.  You Can’t Have One Without the Other: Notice of Appeal Must Designate Both Final Judgment and Intermediate Order

Approximately three years ago, I blogged on Majerske v. Majerske, an unpublished Court of Appeals decision that dismissed an appeal for a notice of appeal defect.  Reason: The notice of appeal identified the intermediate order that the appellant was challenging on appeal, but not the trial court order that converted the case into a final judgment.… Continue Reading

Back in March, the Court of Appeals in Ramsey v. Ramsey dismissed a party’s appeal for cumulative non-jurisdictional violations that the Court described as “gross and substantial noncompliance with the North Carolina Rules of Appellate Procedure.” (See prior posts on Ramsey here and here.)  On Tuesday, in K2HN Construction, NC, LLC v. Five D Contractors, Inc., the Court dismissed another appeal that had a tortured relationship with the State’s appellate rules. … 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

On Friday, the Supreme Court displayed how busy it has been this summer by releasing 17 authored opinions.  Justice Per Curiam (who is fond of affirming/reversing “for the reasons stated in the Court of Appeals” majority/dissent) was conspicuously absent.  Justice Earls and Justice Newby vied for the title of “Most Prolific Dissenter.”  And the Court released its first three opinions directly reviewing trial tribunal orders terminating parental rights—and for those wondering, all three opinions were decided by the Supreme Court by published opinion, but without oral argument.… Continue Reading

Unlike in federal court, judges in North Carolina’s state courts often invite counsel for the prevailing party to draft a proposed order on the court’s ruling. Sometimes the judge will let the parties know of the judge’s rationale through a formal memorandum of ruling or an informal email. Does that document play any role in the appellate process?

Yes, according to the Court of Appeals.… 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

Students of history will remember a bygone era known as late 2018, when Mark Martin was Chief Justice of the North Carolina Supreme Court, the median judge on the shrinking Court of Appeals was elected in 2012, and your parents had purchased enough CDs to elevate the quaint twangs of Bebe Rexha & Florida Georgia Line to the top of the country music charts.… Continue Reading