Requesting that trial judges modify their judgments or orders is not for the faint of heart.  Informing a trial judge that he or she has likely goofed is not fun, but it is often necessary.  Indeed, the Appellate Rules usually force litigants to alert trial judges to potential errors in the hopes that they will fix their errors—saving valuable judicial and party resources by obviating the need for an appeal. … Continue Reading

Rule 59 is a powerful tool. A trial court has discretion to determine whether any one of the nine grounds in Rule 59(a) applies. The trial court then has discretion to select a remedy—a new trial in whole or in part. The trial court may not, however, grant a Rule 59(a) motion and then award something other than a new trial, like an increase in the amount of damages.… Continue Reading

Trial lawyers have a hard job, and it’s easy for appellate lawyers reviewing a cold record to find fault in the decisions made by their predecessors. As others have recognized, a symbiotic relationship can occur when a trial lawyer and an appellate lawyer work collaboratively during trial to reach the best solution for the client. Boone Ford, Inc. v. IME Scheduler, Inc.,Continue Reading

In Davis v. Rizzo (issued Tuesday), the Court of Appeals further limited what kinds of post-judgment motions might constitute “proper” Rule 59 motions sufficient to toll the appeal period.   Not only must such a motion raise adequate grounds under Civil Rule 59, but the party must also seek valid Rule 59 relief.   When the motion fails to do so, the party’s deadline for filing a notice of appeal under Appellate Rule 3 will not be tolled.… Continue Reading

Imagine that Judge Waldo has orally ruled against your client.  A proposed written order has been submitted by the parties to the trial court.  You are gearing up for an appeal.  However, before a written order is entered, Judge Waldo wins the lottery and immediately retires to explore the world.  Can another trial court judge sign the proposed order?  Can a substitute judge rule on a new trial motion?… Continue Reading

Memo to trial lawyers in North Carolina: Do not tell the jury that a witness is a liar.  And you also shouldn’t imply that opposing counsel and an opposing expert witness assisted that witness in committing perjury.

Such was the approach taken by the prosecution in a first-degree murder trial in Mecklenburg County. After the jury returned a guilty verdict on voluntary manslaughter, the Court of Appeals vacated the conviction and remanded for a new trial, holding that the State’s characterization in closing arguments of the Defendant as a liar, and his counsel and expert witness as supporting his dishonesty, was “grossly improper,” and that the trial court should have intervened ex mero motu.  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

North Carolina General Statutes § 1-277(a) says that “an appeal may be taken from every judicial order or determination of a judge of a superior or district court…[that] grants or refuses a new trial.” Thus, under the plain reading of this statute, the denial of a motion for a new trial made by a party pursuant to Rule 59 of the North Carolina Rules of Civil Procedure is immediately appealable.… Continue Reading

While we here at NCAPB concern ourselves with all things appellate, rarely do we have occasion to blog about appeals from decisions made in Small Claims Court. Cue up the Court of Appeals’ unpublished decision in Gupta v. Carter to help us address this gap in coverage.

Five weeks after entering a 12-month residential lease, landlord Gupta filed an action in Wake County Small Claims Court against tenant Carter seeking summary ejectment, overdue rent, and court costs.… Continue Reading

Although filing a notice of appeal generally divests the trial court of jurisdiction, an appellant may still move for a new trial while an appeal is pending. Doing so, however, is wrought with procedural traps for the unwary. For example, as previously blogged, a motion brought under Rule 60 will not toll the time for appeal.

Yesterday, the North Carolina Court of Appeals reminded us of another procedural trap in an unpublished decision. … Continue Reading