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

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

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

Ignore that Rule of Appellate Procedure!  How often do you hear me say that?  I would wager not often, but the Court of Appeals’ recent opinion in Magazian v. Creagh precipitates a friendly warning to take a figurative red pen and strike out a portion of Appellate Rule 3.

Magazian involved a plaintiff’s attempt to “renew” a foreign judgment issued in 2001. … Continue Reading

Jerry Hartzell recently published an article in the April 2014 issue of the North Carolina Advocates for Justice’s Trial Briefs. The article is entitled “Probability of Success on Appeal: Reversal Rates for the Fourth Circuit and the North Carolina Court of Appeals.”

The article is worth an independent read, but Jerry concluded that in 2013 “the North Carolina Court of Appeals reversal rate (in whole or in part) exceeded the Fourth Circuit’s reversal rate by a factor of ten.” … Continue Reading

Eric will be blogging about today’s Court of Appeals’ opinions later tonight, but I wanted to make everyone aware of a prior Court of Appeals’ opinion that all litigators should be aware of.

I recently stumbled on a Court of Appeals’ opinion that appears to conflict with a key tolling provision of the Appellate Rules.  Appellate Rule 3 provides that when “any party” timely files a Rule 50(b), 52(b), or Rule 59 motion the deadline for filing a notice of appeal is tolled “as to all parties until entry of an order disposing of the motion and then runs as to each party from the date of entry of the order.”… Continue Reading

Savvy appellate practitioners know that the appeal process should start long before a party files a notice of appeal. One of the early considerations should be the order or judgment that is entered by the trial court.  In some situations (such as many orders granting motions to dismiss), it is to the winning party’s advantage to encourage the trial court to craft the order to be as “vanilla” as possible, so as not to create extra fodder for the losing party to challenge on appeal. … Continue Reading

Rule 3(c) of the North Carolina Rules of Appellate Procedure mandates that a party must file a notice of appeal either 1) within thirty days after entry of judgment if the party has been served with a copy of the judgment within the three day period prescribed by Rule 58 of the Rules of Civil Procedure, or 2) within thirty days after service upon the party of a copy of the judgment.… Continue Reading