As noted yesterday, the Supreme Court has been busy. Need further proof? How about the fact that the Supreme Court considered 279 “other matters” on Friday— a category that includes rulings on various substantive motions, PDRs, and writ petitions. By way of comparison, the number of “other matters” considered by the Supreme Court fell within the 134 to 182 range the last few times that opinions were released.… 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
Our readers know that the date of filing of a Notice of Appeal in the “home county” establishes compliance with Appellate Rule 3. But is the file-stamp on that notice of appeal unassailable? On Wednesday, the North Carolina Business Court answered that question in the negative.
One sentence of Rule 3(c) of the North Carolina Rules of Appellate Procedure provides: “If timely notice of appeal is filed and served by a party, any other party may file and serve a notice of appeal within ten days after the first notice of appeal was served on such party.”
If one party appeals from a final judgment, what can be included in the other party’s cross-notice of appeal?… Continue Reading
A few months ago, I wrote about a case in which the Court of Appeals held that a notice of appeal was filed too early because the time period for filing a notice of appeal does not begin until judgment is entered. See Mannise v. Harrell. In that post, I indicated that it was “unclear how far the Mannise holding extends.”… 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
Along with changes to the federal civil procedure and bankruptcy rules, the Federal Rules of Appellate Procedure will likely see a significant change in less than a month. Unless Congress decides otherwise, the revisions will provide new page and word count limits for certain filings and clarify which items are to be included in the word count. Importantly, under revised Rule 32, principal briefs will be limited to 13,000 words (rather than 14,000), and reply briefs will be limited to 6,500 words (rather than 7,000).… Continue Reading
You should always file your notice of appeal as soon as possible, right? Wrong. This is one instance in which being early can actually be detrimental to your client’s rights. In Mannise v. Harrell, the Court of Appeals determined that a notice of appeal filed too early was improper and could only be reviewed by writ of certiorari.
The case involved a domestic dispute between two parents in which the defendant father moved to dismiss the action for lack of subject matter jurisdiction and personal jurisdiction.… 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
Eleven days before it is due, you FedEx your Notice of Appeal to the county courthouse, return-receipt requested. Seven days before it is due, you receive an e-mail confirmation that the document was, in fact, delivered. You have timely appealed, right?
Maybe not. In Hefner v. Mission Hospital, a Business Court case, a final order was filed-stamped in the county courthouse on December 17, 2015, starting the thirty-day clock during which the plaintiff could file a notice of appeal. … Continue Reading