Notice of Appeal

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Our state appellate courts have long held that a timely notice of appeal is a jurisdictional requirement. See, e.g., State v. Patterson. (For an interesting discussion on this topic, see section 28.02[3] in Beth and Matt’s treatise.)

Federal courts, on the other hand, have taken a different approach. For example, the Supreme Court in 2017 clarified that unless prescribed by statute, a rule-based timeline for filing a notice of appeal is “not jurisdictional” but is instead a “mandatory claim-processing rule.”… Continue Reading

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

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, 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Approximately three years ago, I blogged on Majerske v. Majerske, an unpublished Court of Appeals decision that dismissed an appeal for a notice of appeal defect.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

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

Finally found time to blog on one of my favorite topics: exceptions and qualifications to the error preservation requirements of Appellate Rule 10! (Um, I heard those groans!).  A few weeks ago the North Carolina Supreme Court issued two new opinions shedding additional light on this semi-fascinating topic.

Under the Statutory Mandate Exception to Appellate Rule 10, Trial Judges Generally are Not Required to Supervise the Conduct of “Outside” State Actors

In re E.D.… 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

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

Hurricane Florence has brought flooding and other forms of misery to much of North Carolina, especially in the coastal and southeastern counties.

On Thursday, 13 September 2018, Chief Justice Martin issued a helping hand to attorneys in those areas. Pursuant to N.C.G.S. § 7A-39(b)(1) the Chief issued an emergency order  finding that “catastrophic conditions” existed in Beaufort, Brunswick, Carteret, Craven, Currituck, Dare, Hyde, Jones, New Hanover, Onslow, Pamlico, Pender, Sampson, and Tyrrell Counties. … 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