North Carolina Rules of Appellate Procedure

Beth and Matt’s treatise, North Carolina Appellate Practice and Procedure, is finally available!  Published by LexisNexis in both print and online versions, the treatise represents the culmination of several years, and many thousands of hours, of hard work.

The treatise grew out of the same circumstances that spurred us to create this blog in 2011.  The practice of law in North Carolina’s appellate courts can be procedurally tricky. … Continue Reading

Except for appeals in really old cases, appeals from a final judgment entered by a Business Court judge are properly taken to the Supreme Court of North Carolina, not the Court of Appeals.

So what happens when a party files a notice of appeal in a Business Court case that mistakenly names the Court of Appeals as the court to which appeal is taken?… Continue Reading

As we noted about a month ago, the Supreme Court of North Carolina passed a rule that would allow for a substitute justice to avoid a deadlock vote.  That rule has now been rescinded.  In an order dated December 8th, the Court said that the rule “is hereby repealed, effective immediately, and not reserved for future use.”

–Matt Leerberg… Continue 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

[box] ♪♪ If there is something strange,

In your neighborhood,

Who you gonna call?

. . .

If there’s something weird

And it don’t look good,

Who you gonna call? [/box]

For children of the eighties, the catchphrases “Ghostbusters!” and “I ain’t afraid of no ghost” are now likely floating in your head.  Outside the supernatural world, when “there’s something weird” in the “appellate neighborhood,” one name likely comes to mind when asked, “Who You Gonna Call?”: … Continue Reading

In March, we blogged about a chart  summarizing post-Dogwood opinions involving appellate rules violations.  Drew and Carrie may be adding another entry to their chart.  In an opinion authored by Judge Tyson, the Court of Appeals dismissed yet another appeal for non-jurisdictional violations.

In re Gutowski involved two pro se appellants’ challenge to a superior court order allowing a bank to foreclose on, and ultimately sell, the appellants’ residence after they defaulted on their mortgage. … 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

When it comes to briefing, we know we should be accurate, clear, and concise (and persuasive, of course). For many of us, brevity is the real challenge—a challenge word limitations are quick to highlight. One strategy to address this challenge is the use of internal cross-references. The phrases “see infra” and “incorporated herein by reference” have become commonplace in legal writing. … 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