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
The trial judge who presides over a hearing or trial is supposed to, and usually does, sign the resulting written order. But what happens if that normal process is not followed? What options do the parties have?
Last week, the Supreme Court articulated one option that is not available: filing a notice of appeal. In re C.M.C. involved a bench trial of a petition for termination of parental rights.… 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
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
Last week’s batch of opinions from the Court of Appeals includes a procedurally complicated case in which the court granted a writ of certiorari–only to dismiss a large portion of the appeal “as untimely and interlocutory.” The opinion shines light on several faulty presumptions that can trip up an appeal. Intrigued? Read on.
In Engility v. Nell, the defendants sought review of two orders: (1) a February 2017 order granting a motion to quash and imposing sanctions, and (2) a Rule 60 order denying relief as to the February 2017 order because the defendants contended that they had not received adequate notice and an opportunity to be heard on the motion to quash.… 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
There are myriad reasons why, when given the choice, North Carolina litigators might want a case venued in federal court as opposed to state court (and depending on the circumstance, of course, the opposite is also true). A list of these reasons might not typically include “more options if we lose,” but the reality is that in many instances the federal rules–of both civil and appellate procedure–provide more options to a losing party than the North Carolina rules. … 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