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 partyline 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

Sometimes the juiciest info is found in the comments.  In October, I blogged about State v. Biddix—a Court of Appeals’ opinion that appeared to significantly limit the Court of Appeals’ certiorari authority under Appellate Rule 21.  Even though a state statute specifically granted a criminal defendant the right to challenge his guilty plea by writ of certiorari, the Biddix court held that this statutory authority was trumped by Appellate Rule 21, which does not specifically authorize review of guilty pleas by certiorari.… Continue Reading

Yesterday’s blog post focused on how the Business Court Modernization Act only applies to “actions designated as mandatory complex business cases on or after” October 1, 2014.  See Session Law 2014-102.  As that post demonstrated, the timing of when a case is designated to the North Carolina Business Court can create different (and unusual) pathways to appellate review.

This follow-up post focuses on the phrase “designated as a mandatory complex business cases,” as that phrase is used in Session Law 2014-102 to determine to which appellate court a Business Court appeal should be taken.  … Continue Reading

Over the past few months, we have shared several  potential problems created by the Business Court Modernization Act.  Nonetheless, we held a few potential traps close to our vest because, frankly, we were unsure if any of the unique circumstances necessary to trigger the traps would arise.  Recently, we changed our mind on the improbability of those scenarios based on an October 8 order from the North Carolina Business Court. … Continue Reading

Judge Dietz shared an interesting brief-writing tip last night with The Chief Justice Joseph Branch Inn of Court. Go with a Century font over Times New Roman, and for any of you still clinging on to the Courier New days, it is time to move on.

Why Century? Two simple reasons—legibility and retention.

As stated by the Seventh Circuit in its Requirements and Suggestions for Typography in Briefs and Other Papers:

Typographic decisions should be made for a purpose.

Continue Reading

Yesterday the North Carolina Court of Appeals issued what I am going to be so bold as to call the most highly anticipated opinion in 2015 for appellate practitioners. For those new to the Ehrenhaus discussion, take a look at our prior posts here and here and here. The central question is whether the provision in Appellate Rule 3 requiring that a notice of appeal be filed “with the clerk of superior court” can, in a North Carolina Business Court case, be satisfied by e-filing the notice of appeal through the Business Court website, or can only be satisfied by timely filing of the notice of appeal with the clerk of superior court in the case’s “home county.”… Continue Reading

Last week the North Carolina Court of Appeals dismissed an appeal based on what it described as “substantial noncompliance” with the appellate rules. The dismissal in Smith v. North Carolina Department of Public Safety involved two non-jurisdictional defects—Appellant’s failure to cite legal authority in a brief and Appellant’s failure to provide a transcript of the proceeding from which this appeal arose.… Continue Reading

How is that possible?  The scenario is actually quite simple:

Timely Filed Notice of Appeal + Timely Date on Certificate of Service + Untimely Postmark Date.

Rule 3(a) of the North Carolina Rules of Appellate Procedure sets forth the rule for “Filing the Notice of Appeal.”  A timely filed notice of appeal, however, does not always equate a timely noticed appeal. … Continue Reading

While reading through the latest batch of opinions from the North Carolina Court of Appeals, I was struck (again) by how often appellate cases are not decided on the merits but rather on issues of appellate procedure. At least one quarter of the published and unpublished opinions I reviewed had at least one issue that involved error preservation or appellate procedure.… 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