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
Since 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, here, here, 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Approximately three years ago, I blogged on Majerske v. Majerske, an unpublished Court of Appeals decision that dismissed an appeal for a notice of appeal defect.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
On Thursday, the Supreme Court of North Carolina issued its latest amendments to the North Carolina Rules of Appellate Procedure. The amendments impact word-count limitation applicable to appellate briefs and parental leave.
Rule 3.1 Supreme Court Briefs are Subject to Rule 28(j)’s Word Count Limitation
Historically, word-count limitations have not applied to appellate briefs filed in either direct or secondary appeals to the Supreme Court. … 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
NOTICE: Take the following post with a grain of salt. The Court of Appeals issued an updated opinion in the Ellis case on 20 August 2019. Although the opinion is still 2-1, most of the language in the original majority opinion that I blogged about pertaining to appellate practice and procedure has been removed. The updated opinion also leaves no doubt that the issue of reasonable suspicion was first raised at the trial level.… Continue Reading
Wouldn’t it be great if an automatic notification was sent out whenever court rules were updated? Wait . . . I hear you! “What self-respecting lawyer doesn’t subscribe to the NCAPB.com blog, which provides updates and summaries of all Appellate Rules amendments?!?” Alas, not everyone understands the thrill of an appellate practice blog. Plus, our focus is the North Carolina Rules of Appellate Procedure–not Supreme Court rules on court-ordered arbitration.… Continue Reading
Is there institutional disharmony in the Fourth Circuit? That’s the question that one judge suggested, in a concurring opinion, that lawyers and judges might be asking after an en banc opinion released on Tuesday. In response, the judge whose dissenting opinion prompted the question submitted that the apparent tension we are witnessing within the Court is simply a “vigorous exchange of views over basic and fundamental principles of law,” and that such a “robust” exchange enhances “mutual respect and collegiality.”… 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