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

Last year, I blogged about State v. Ellis where a passing motorist gave a Highway Patrol trooper the middle-finger salute and was arrested for his trouble.  A divided Court of Appeals allowed the defendant’s conviction to stand.  The case made it to the Supreme Court, which recently issued an opinion reversing the conviction.

A quick recap of our story.  A trooper was assisting motorists when he noticed that the passenger in a car driving by had extended his hand out the window and was waving. … Continue Reading

In State v. Golder, 79PA18, filed 3 April 2020, the Supreme Court of North Carolina provided helpful guidance on a vexing issue relating to error preservation:  Does a general motion to dismiss preserve for appellate review arguments relating to insufficiency of the evidence?  At the same time, the Court resolved a split on the issue in the jurisprudence of the Court of Appeals.… 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

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

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:

  • Yes
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I will note at the outset that our firm represented the property owners in this case. But aside from the substantive issues, the Supreme Court’s decision from last week in North Carolina Department of Transportation v. Mission Battleground Park contains an important caveat for appellate practitioners.

The case involved the DOT’s condemnation of property in Greensboro for a state highway project.… Continue Reading

In State v. Meadows, the Court of Appeals determined that sentencing errors not preserved with a timely request, objections, or motion are waived under Appellate Rule 10(a)(1).  In doing so, the Meadows court 1) declined to follow a prior line of cases holding that Appellate Rule 10(a)(1) was inapplicable to sentencing issues, 2) applied the recently created exception to the In re Civil Penalty rule [previously blogged on here], and 3) did not address the Supreme Court’s 2010 decision in State v.Continue Reading

On June 9, 2017, the Supreme Court of North Carolina issued a unanimous opinion holding that when an employer admits the compensability of an injury under the Worker’s Compensation Act, the injured worker is thereafter entitled to a presumption that future medical treatments are causally related to the original compensable injury. Before the ink could dry on Wilkes v. City of Greenville, a “broad coalition of private and public organizations” convinced the General Assembly to essentially nullify the impact of the Supreme Court’s decision.… Continue Reading