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
You already know that the Supreme Court adopted numerous amendments to the Rules of Appellate Procedure at the end of 2018. However, some of the most significant changes are occurring behind the scenes at the appellate courts’ electronic filing website (https://www.ncappellatecourts.org)
I. Court of Appeals Continues to Lift E-filing Restrictions
For years, the electronic filing website categorically prohibited e-filing appellate records in the Court of Appeals. … Continue Reading
In October 2018, I gave a CLE presentations with (now recently sworn in) Judge Allegra Collins: “Life Preservers on the Titanic: Issues Not Properly Preserved for Appellate Review.” Part of the presentation posed this question: Can the General Assembly enact a rule or law that automatically preserves certain issues for appellate review? At the time, the answer to that question was as follows:
It is beginning to feel like a bi-annual holiday tradition between me and our blog readers: another rule-update summary. Yesterday afternoon, the Supreme Court issued its latest order amending the North Carolina Rules of Appellate Procedure. The amendments impact Appellate Rules 3, 3.1, 4, 9, 11, 12, 13, 18, 26, 28, 30, 37, 41, brand new Appellate Rule 42, as well as Appendixes A, B, and D (whew)!… Continue Reading
With the reworking of N.C.G.S. § 7A-27 to provide a direct appeal to the Supreme Court of North Carolina from certain orders of the North Carolina Business Court, it was expected that our State’s highest court would start churning out business law opinions. The batch of opinions from the Supreme Court released on December 7th contained three opinions originating from the Business Court, but only two of these came directly from the Business Court; perhaps the most high profile of the bunch (Corwin v.… Continue Reading
On Tuesday, the Court of Appeals issued its latest batch of opinions. Good news: the impending turkey feast has not slowed the court’s pace in grappling with interesting appellate issues. Bad news: still no real resolution for most of them.
Rule 3.1 No-Merit Briefs: A Middle Ground?
In July and October, Kip wrote about the evolving disagreement in the Court of Appeals as to what type of appellate review is required when appointed counsel files a no-merit brief under Appellate Rule 3.1. … Continue Reading