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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

Yesterday’s batch of opinions contained an unusual nugget: an entire opinion devoted to arguably the most powerful of all appellate tools, the writ of certiorari. In State v. Biddix,  the Court of Appeals denied a petition for writ of certiorari by concluding that the court was prohibited from invoking certiorari to address an issue on appeal, rather than simply exercising its discretion to deny the petition. … 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

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

Under the North Carolina Rules of Appellate Procedure, an appellant’s brief must contain “a concise statement of the applicable standard(s) of review for each issue.” N.C. R. App. P. 28(b)(6). The appellee is also permitted to state the standard(s) of review if it “disagrees with the appellant’s statements and desires to make a restatement.” Id. Rule 28(c). In many cases, the standard of review is clear and uncontroversial.… Continue Reading

As the Honorable Mark A. Davis recently reminded us in his CLE program entitled Do’s and Don’ts at the Court of Appeals: A View from the Bench: “Appellate judges are always focused on the standard of review that governs their analysis of the particular case before them.”  Appellate practitioners likewise should share this focus, especially when appealing discretionary decisions involving a for-cause challenge to a rehabilitated juror.… Continue Reading

With the recent amendments to the appellate rules in April 2013, the Smith Moore Leatherwood Appellate Practice Group has updated its “North Carolina Rules of Appellate Procedure Checklist.” We publish the checklist as a guide for experienced and beginning appellate practitioners alike. The checklist provides a concise summary of deadlines and reminders for all aspects of appellate practice in the North Carolina courts.… 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

Sometimes an appellant merely seeks reversal of a trial court’s decision. However, appellants should also remember that an appellate court will, on occasion, reverse a lower court and decide the case on its merits. The Supreme Court of North Carolina released an opinion last week that highlights the importance of this possibility.

IMT, Inc. v. City of Lumberton was a consolidation of four cases that all challenged the constitutionality of a change in Lumberton’s privilege license tax.… Continue Reading