Generally speaking, an appeal stops all proceedings at the trial court level until the appeal concludes. However, as we have previously blogged (here, here, here, and here), there are limited circumstances where a trial court may move forward with a case during the pendency of an appeal.  In Plasman v. Decca Furniture (USA), Inc.,… Continue Reading

There are few concepts that are as important to our nation’s jurisprudence as that of jurisdiction. As stated by the Supreme Court of the United States, “Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them . . . .” Rhode Island v. Massachusetts, 37 U.S.… Continue Reading

In 2013, a new statute took effect allowing for immediate appeal from certain interlocutory orders entered in family law cases.  N.C. Gen. Stat. § 50-19.1.  In that context, it is not uncommon for a lawsuit to contain claims for divorce, child custody, child support, alimony, and equitable distribution.  Sometimes, those claims can, and are, decided separately and at different times. … Continue Reading

Holidays, snowstorms, vacations, workloads—mixed in with the winter blahs—have resulted in us getting a little behind on our blogging duties. The appellate courts, however, have not suffered from the same maladies, issuing several important appellate-practice-and-procedure decisions of late.  This special “Catch-Up” post hopefully gets us back on track for the New Year.

Rule 54(b) Certification and Peacock Farms. The question presented in Peacock Farms was whether a Rule 54 certification statement (i.eContinue Reading

In federal court, an order granting a preliminary injunction is immediately appealable under 28 U.S.C. § 1292.  In North Carolina courts, however, an order granting a preliminary injunction is generally not immediately appealable, unless the appellant can show that the order affects his substantial rights.  If an injunction is entered in federal court and not appealed, and the case is then remanded to state court, can the aggrieved party ask the state court to revisit the injunction and thereby restart the appeals clock on the issues presented by the injunction?… Continue Reading

There are some obvious parallels between pursuing a preliminary injunction and pursuing an immediate appeal based on an interlocutory order’s affecting your substantial rights.  To obtain a preliminary injunction, a party must show that it “is likely to sustain irreparable loss unless the injunction is issued” or that “issuance is necessary for protection of a plaintiff’s rights during the course of litigation.” … Continue Reading

A split decision of the Court of Appeals Tuesday provides a warning to litigators:  If you plan to take immediate appeal from an order that is final as to some but not all claims or parties under Rule 54(b), you need to speak up and have the certification of “no just reason for delay” included in the order itself.  A subsequent order retroactively certifying the earlier order will not satisfy Rule 54(b), the Court of Appeals held today.… Continue Reading

Who is the target audience of an appellate opinion?  Appellate counsel?  Other lawyers?  The public?

For appellate counsel, of course, the written opinion serves to explain the reasoning behind the disposition.  For other lawyers, the written opinion provides a roadmap of the law and the application of that law to a set of facts, which could help guide arguments that can be made in the future in analogous situations.… Continue Reading

Take a glance at the Table of Contents of the Appellate Rules Committee’s invaluable “Guide to Appealability of Interlocutory Orders.” The Guide sets forth the many, many categories of orders that have been evaluated by the Court of Appeals under the prevailing “substantial right” test for immediate appealability. As we often discuss on this blog, if the order affects a substantial right of a party, the party can appeal right away.… Continue Reading

Yes, we are still an appellate blog.  The Business Court, however, has been particularly active in the appellate sphere these past few months.  As reported in June, the General Assembly has been considering a bill to “modernize” the North Carolina Business Court.  On Saturday, a final bill was presented to the Governor, which he is expected to sign.

Senate Bill 853 would amend section 7A-27 to shift to the North Carolina Supreme Court venue over appeals of right from final judgments and most immediately appealable interlocutory orders of the Business Court. … Continue Reading