In light of Matt’s post from yesterday, does anyone perceive an uptick in dismissals of appeals for notice of appeal problems? Are North Carolina lawyers unique in their propensity to screw up notices of appeal? Are dismissals for notice of appeal violations common in other appellate systems? Let’s say, for instance, the federal appellate courts? If not, why? Matt and I have been discussing and debating these questions for a few months. … Continue Reading
Twice this week the Fourth Circuit took the relatively unusual step of issuing published opinions on orders denying rehearing of a case. Ordinarily such orders are not published for the simple reason that there is no accompanying written opinion to publish. Not so this week, however.
On Monday the Court denied a request for panel rehearing and rehearing en banc in US v.… Continue Reading
On Tuesday, the North Carolina Court of Appeals issued an opinion in Jackson/Hill Aviation, Inc. v. Town of Ocean Isle that reaffirmed the rule that North Carolina courts “cannot take judicial notice of municipal ordinances.” The practical effect of that rule, as played out in Jackson/Hill Aviation, is that unless a municipal ordinance is specifically mentioned in a plaintiff’s complaint, a defendant cannot use that ordinance to defeat the plaintiff’s complaint on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. … Continue Reading
On occasion, the Supreme Court of North Carolina will grant a petition for discretionary review and then later decide that the grant was “improvidently allowed.” See, e.g., here and here and here. The U.S. Supreme Court sometimes reaches the same result.
Because these opinions usually provide little, if any, explanation, we are often left to guess at the basis for the court’s decision.… Continue Reading
A few weeks ago, one of my colleagues blogged on the topic of unpublished opinions in the North Carolina Court of Appeals. The Maryland Appellate Blog released an interesting post today about the same phenomenon in the Fourth Circuit. The Maryland blog discusses the Fourth Circuit’s somewhat unusual practice of issuing unpublished opinions in cases where one of the judges dissents. … Continue Reading
The Fourth Circuit Court of Appeals issued two opinions last week clarifying issues relating to notices of appeal.
In Jackson v. Lightsey, the Fourth Circuit addressed 1) whether a notice of appeal that failed to specify that the appeal was being made to the Fourth Circuit was sufficient to confer appellate jurisdiction, and 2) whether a notice of appeal that designated a 2013 order, but not a 2012 order, was sufficient to allow the Fourth Circuit to review the 2012 order. … Continue Reading
In June, we blogged on how a United States Supreme Court decision interpreting a North Carolina statute of repose had created some strange bedfellows in the General Assembly–which had almost immediately rushed to “clarify” North Carolina’s statute of repose. The General Assembly’s “clarification” efforts were directed toward saving lawsuits pending in the Eleventh Circuit that had been brought by U.S. Marines and their families who had been exposed to toxic groundwater at Camp Lejeune.… Continue Reading
Today, the United States Supreme Court issued its final two opinions of the term with widely-anticipated rulings involving the Affordable Care Act and union fees. The justices split 5-4, in both opinions along ideological lines, with Justice Alito writing the majority opinions. Although a 5-4 split was widely expected in these two particular cases, commentators routinely claim that the United States Supreme Court is deeply divided along ideological lines in many, if not most, cases.… Continue Reading
It was a pleasant surprise this morning to discover that the Maryland State Bar Association’s Maryland Appellate Blog was discussing a point of North Carolina appellate practice and procedure.
The impetus of the discussion was the United States Supreme Court’s recent decision in CTS Corp. v. Waldburger, where the Court was called on to decide whether the express preemption of state statutes of limitations set forth in the federal superfund environmental clean-up law known as CERCLA also applies to state statutes of repose. … Continue Reading
Scratch unconscionability off the list of likely arguments to make to avoid arbitration. In a pair of opinions issued this week, the North Carolina Court of Appeals made it much more difficult going forward for a plaintiff to escape the consequences of an agreement to arbitrate, even when included in a contract of adhesion and even when it includes a class action waiver. … Continue Reading