A lot of mistakes can be fixed, but those depriving an appellate court of jurisdiction are not usually among them. Unless the appellate court deems the appeal to raise issues of great importance and to present a compelling case for reversal, jurisdictional errors are usually fatal.
At first blush, it might not seem surprising that the Court of Appeals would dismiss an appeal if “[n]o issues have been argued or preserved for review.” But what is surprising is the fact that the Court reached that conclusion in a published opinion and, in doing so, made a significant change to the jurisprudence of cases arising under Rule 3.1 of the North Carolina Rules of Appellate Procedure (which governs appeals in certain types of cases involving juveniles including terminations of parental rights).… Continue Reading
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
On Wednesday, the General Assembly overrode the Governor’s veto of House Bill 239. Against opposition from the bench and the bar, the legislature pushed the court-shrinking bill through on a mostly party–line vote. The override votes came on the heels of a remarkable move by retiring Judge Douglas McCullough–a registered Republican–who reportedly retired a month early to avoid having his seat eliminated by the bill.… Continue Reading
Last week, we wrote about a bill that was introduced in the legislature that would shrink the Court of Appeals to 12 judges while tweaking the jurisdiction of the Supreme Court to cover direct appeals from orders on class action certification and to provide another pathway for consideration of “Bypass PDRs.”
We had a hard time understanding two things about the bill: (1) why did the bill also give an appeal right to the Supreme Court from decisions regarding an attorney’s scheduling conflicts under Rule 3.1 of the General Rules of Practice; and (2) how can the bill be characterized as a workload-shifting measure when the sum total of cases shifted to the Supreme Court would likely number in the single digits annually?… Continue Reading
In its final set of opinions from 2016, the North Carolina Court of Appeals provided some helpful reminders for appellate practitioners.
1. Unless some other exception applies, you may appeal from an interlocutory order only if it affects a substantial right. In Pass v. Brown, the Court reminded us that an appellant must identify a substantial right affected by each issue, not by an immediate appeal as a whole.… Continue Reading
Last year, my colleague Kip Nelson warned about the risks of failing to provide a fulsome “statement of the grounds for appellate review” in an appellant’s brief, as required by N.C. R. App. P. 28(b)(4).
In the deliciously named Larsen v. Black Diamond French Truffles, Inc. case from last year, the North Carolina Court of Appeals warned of the jurisdictional significance of failing to include this statement in an opening appellant’s brief. … Continue Reading
It was just over one year ago that I wrote about the authority of one appellate panel to overrule another panel when the issue is one of jurisdiction. Last week, the Supreme Court of North Carolina issued an opinion in that case that helps to explain the jurisdiction of the appellate courts. The opinion may also offer a preview of the analysis we will see in the pending State v.… Continue Reading
Savvy practitioners know that some post-trial motions toll the deadline for filing a notice of appeal, but motions brought under Rule 60 of the Rules of Civil Procedure do not. So what happens when a trial court rules on a Rule 60 motion after the final judgment’s appellate deadline? If the final judgment was not appealed, can a party appeal from the Rule 60 decision?… Continue Reading
When reading through recent batches of opinions from the North Carolina Court of Appeals, you may notice a new feature: a statement regarding the Court’s jurisdiction. While such a statement is required in an appellant’s brief, see N.C. R. App. P. 28(b)(4), it is not required in an opinion. And although the Court has addressed jurisdiction if necessary, opinions have not traditionally included a separate statement on jurisdiction when it was not in dispute.… Continue Reading