About a month ago, the North Carolina Court of Appeals issued an unpublished opinion that underscored the importance of compliance with Appellate Rule 9(a), which provides that appeals from the trial division will be reviewed “solely upon the record on appeal, the verbatim transcript of the proceedings, if one is designated, and any other items filed pursuant to this Rule 9.” … Continue Reading
Our goal in creating this blog was to be a “one-stop shop” for news, information, tips, and resources involving North Carolina appellate practice and procedure. Over a five-year period, NCAPB.com’s content has grown significantly. One area of law that has contributed to that expansion has been North Carolina Business Court appeals. In particular, the NCAPB team has blogged extensively over the past two years on at least seven different appellate traps that have emerged in Business Court cases. … Continue Reading
In yet another case highlighting potential pitfalls when appealing a decision of the Business Court, the North Carolina Court of Appeals dismissed a plaintiff’s appeal Tuesday for failing to provide specific information relating to the Court’s jurisdiction over the appeal. In Grasinger v. Williams, the Court of Appeals held that the plaintiff-appellant “failed to confer jurisdiction” on the Court because the Record on Appeal did not contain anything that established “the precise date upon which [the] action was designated as a mandatory complex business case.” … Continue Reading
Tuesday’s batch of Court of Appeals opinions contained two scenarios in which a trial court’s oral ruling failed to align with its subsequent written order. While one of the “inconsistent” orders was remanded, the other order was affirmed. Let’s talk about why.
The order that was affirmed, In re O.D.S., involved a Rule 3.1 appeal. The trial court stated on the record that DSS had proven abuse and neglect but made no ruling as to dependency. … Continue Reading
If you have never had to deal with an appellate trial transcript that is missing deposition testimony, consider yourself lucky. When deposition testimony is being read or a video deposition is being shown to a jury or trial judge, court reporters often see no need to “re-transcribe.” The theory is that since the deposition testimony was previously recorded, there is no need for a contemporaneous transcription of the testimony’s presentation at trial.… Continue Reading
In October 2015, I blogged about In re Pike, a single Business Court order that resolved four consolidated actions. Because the actions were designated on different dates, the right to appellate review of this single order was split between the North Carolina Supreme Court and the North Carolina Court of Appeals. At the time, I suggested that a bypass petition was likely the best way to resolve this “perfect storm.”… Continue Reading
I can’t pass up the opportunity to blog about an appellate case titled Don’t Do It, [Sic] Empire, LLC v. Tenntex, COA 15-938 (Mar. 1, 2016) ([sic] in original)—especially when that case involves a failure to preserve an issue for appellate review under Appellate Rule 10. I also feel compelled to write about the Court of Appeals’ published opinion in State v.… Continue Reading
This week the Fourth Circuit joined a growing trend in acknowledging that its judges can, and sometimes do, look outside of the joint appendix/appellate record and Westlaw/Lexis for support for their appellate opinions. The Court adopted Internal Operating Procedure 36.4, which states
… Continue Reading
Internet resources cited in the Court’s opinions that can be saved in PDF format will be preserved by the opinion’s author at the time of viewing and placed on the Court’s docket as opinion attachments when the opinion is filed.
Yesterday’s blog post focused on how the Business Court Modernization Act only applies to “actions designated as mandatory complex business cases on or after” October 1, 2014. See Session Law 2014-102. As that post demonstrated, the timing of when a case is designated to the North Carolina Business Court can create different (and unusual) pathways to appellate review.
This follow-up post focuses on the phrase “designated as a mandatory complex business cases,” as that phrase is used in Session Law 2014-102 to determine to which appellate court a Business Court appeal should be taken. … Continue Reading
Over the past few months, we have shared several potential problems created by the Business Court Modernization Act. Nonetheless, we held a few potential traps close to our vest because, frankly, we were unsure if any of the unique circumstances necessary to trigger the traps would arise. Recently, we changed our mind on the improbability of those scenarios based on an October 8 order from the North Carolina Business Court. … Continue Reading