North Carolina General Statute § 7A-30(2) allows for an appeal as of right to the Supreme Court of North Carolina from “any decision of the Court of Appeals rendered in a case…in which there is a dissent.” Seems pretty straightforward, yes? If the Court of Appeals issues a decision and one of the judges writes a dissenting opinion, then the losing party can automatically get the case to the Supreme Court, right? … Continue Reading
On Tuesday, Troy posted on the uncertainty surrounding how North Carolina appeals are being impacted by the coronavirus pandemic. On Thursday, the Chief Justice issued a catastrophic conditions order extending deadlines and other court proceedings for one month. Notably, this extension order does not apply to documents filed or acts to be done in the appellate courts. (But see final two paragraphs below).… Continue Reading
Last week, the Court of Appeals returned to a general question that this blog has addressed before: When is a Notice of Appeal Filing Deadline or Requirement Jurisdictional? In this instance, the specific issue was whether the Court has jurisdiction over an appeal when a notice of appeal was filed and the record on appeal was filed and the appeal docketed before the trial court entered the order that was being appealed.… Continue Reading
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 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
Update: In February 2021, the Supreme Court granted the defendant’s petition for discretion review.
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
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
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