Unpublished Cases

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There is a school of thought in legal writing that you should never put anything too important in footnotes, as some readers might skip over them.  See, e.g., https://www.legalwritingpro.com/articles/the-lowdown-on-footnotes/.  Well, if you are one of those readers, then you would have missed a good footnote from an unpublished Fourth Circuit opinion issued on Monday.    The opinion starts with the sentence “This appeal presents conflict of laws and conflict of interests questions in an insurance coverage dispute.” … Continue Reading

Note: much of the information below comes from The American Lawyer’s October 23 “Daily Dicta,” by Jenna Greene.

He started as a pro se plaintiff alleging First Amendment (and other) violations by a number of federal judges, an FBI agent, and a US Marshal.  Now William Bond has been represented by some of the heaviest of legal heavyweights as his case makes its way up towards the highest court in the land. … Continue Reading

Appellate practitioners are familiar with the concept of moving to have the court publish an opinion that was initially issued as “unpublished.”  Much rarer is the reverse situation, where a party seeks to have an opinion that was published “demoted” to unpublished status.  And perhaps even rarer is to have that request for “unpublishing” made by a member of the Court. … Continue Reading

In the published opinion of State v. Hensley, a concurring opinion was devoted to a somewhat surprising issue: a disagreement regarding the majority opinion’s citation to a single unpublished opinion.  I suddenly have the attention of only the appellate nerds reading this blog.

Under Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure, unpublished decisions of the Court of Appeals are not controlling legal authority.… Continue Reading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

About a month ago, the North Carolina Court of Appeals issued an unpublished opinion that underscored the importance of compliance with Appellate Rule 9(a), which provides that appeals from the trial division will be reviewed “solely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

A case with a history of appellate rules issues, see here, can now add a few more to its tally.  In State v. Coxton the Court of Appeals originally dismissed a criminal defendant’s appeal for failure to give proper notice of appeal and further denied the defendant’s petition for writ of certiorari because it was filed more than eight months after the judgment being appealed from without any explanation for the delay.  … Continue Reading

The notice of appeal is arguably the most important document in the life of an appeal.  After all, a proper notice of appeal “is a procedural appellate rule, required in order to give [an appellate court] jurisdiction to hear and decide a case.”  State v. McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 405 (1995).  And while perhaps the most commonly seen procedural issue regarding notices of appeal involves the timely filing of the notice (see here, here, and here), there are other traps to be aware of as well.  … Continue Reading

The state appellate rules are clear: your notice of appeal must “designate the judgment or order from which appeal is taken.”  N.C. R. App. P. 3(d).  So, if you want to appeal an interlocutory order, you identify it in the notice of appeal, and you have complied with the rule, right?

Apparently not.  In the unpublished opinion of Majerske v. Majerske, the Court of Appeals held that an appellant seeking to challenge an interlocutory order after entry of a final judgment must also designate the final judgment in the notice of appeal to confer appellate jurisdiction.… Continue Reading

North Carolina General Statutes § 1-277(a) says that “an appeal may be taken from every judicial order or determination of a judge of a superior or district court…[that] grants or refuses a new trial.” Thus, under the plain reading of this statute, the denial of a motion for a new trial made by a party pursuant to Rule 59 of the North Carolina Rules of Civil Procedure is immediately appealable.… Continue Reading