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Does “Dismissed and Remanded” Effectively Mean “Reversed”?

The Fourth Circuit issued an interesting, unpublished opinion on Tuesday in Kelly v. Conner  in which it sua sponte dismissed a party’s appeal for want of jurisdiction and remanded to the district court for further proceedings.  While this result alone is not remarkable, the underlying procedural history and the result of the remand makes the case somewhat unique. Kelly involved a multi-count complaint against 10 defendants.  The plaintiff was

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An “Improvident” Decision

On occasion, the Supreme Court of North Carolina will grant a petition for discretionary review and then later decide that the grant was “improvidently allowed.” See, e.g., here and here and here. The U.S. Supreme Court sometimes reaches the same result.

Because these opinions usually provide little, if any, explanation, we are often left to guess at the basis for the court’s decision. Earlier this month, the U.S. Supreme

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Can You Appeal a Rule 2.1 Exceptional Case Designation?

The procedure for having a North Carolina Superior Court case designated as “exceptional” pursuant to Rule 2.1 of the General Rules of Practice for the Superior and District Courts of North Carolina is relatively straightforward and typically follows this process:  (1) A party (or the parties) makes a motion for 2.1 designation to a presiding or senior resident superior court judge; (2) the superior court judge makes a

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Be Patient: North Carolina Supreme Court Cancels December Oral Arguments

On Monday afternoon, Bryan Boyd, Clerk of the Supreme Court of North Carolina, informed affected counsel that the December 2016 oral argument calendar–previously  scheduled for the week of December 12– has been cancelled.  The affected cases have not yet been rescheduled.

With Justice-elect Michael Morgan set to join the bench in January 2017, speculation is whirling as to whether the Supreme Court is seeking to wrap up cases before Justice Edmunds’ departure.  Or is something else driving

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More On Jurisdiction and SED

Last week I wrote about the Court of Appeals ‘ holding in  SED Holdings, LLC v. 3 Star Properties, LLC regarding the jurisdiction of the trial court while an interlocutory appeal is pending.  See here.  A few weeks prior, before the SED II opinion was released, Mack Sperling provided some excellent insight on his blog as to what was happening in the trial court in SED and how the court’ s jurisdiction was impacted by the Petition for Discretionary Review that defendants had filed (and that was subsequently allowed) regarding the Court of Appeals ‘ decision in SED I.  By that point the case was venued in the North Carolina Business Court, and Judge Robinson had determined that while the PDR was pending before the Supreme Court of North Carolina, he retained jurisdiction to proceed with the case at the trial court level.  However, once the Supreme Court allowed the PDR, Judge Robinson sua sponte determined that the trial court was without jurisdiction to proceed.  His reasoning was that the trial court’ s denial of defendants ‘ motion to dismiss for lack of subject matter jurisdiction and improper venue became an “issue on appeal” to the Supreme Court upon the allowance of the PDR, and that divested the trial court of jurisdiction.

While that decision certainly makes sense, one must wonder if, in light of RPR, and now SED II (which had not been decided at the time of Judge Robinson’ s order), Judge Robinson could have properly proceeded with the case while the issue is pending before the Supreme Court.  After all, just a few weeks after he decided he was without jurisdiction, the Court

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Could the North Carolina Supreme Court Grow to Nine Members?

Multiple media outlets are reporting that the General Assembly is considering a statutory change that would increase the size of the Supreme Court of North Carolina to nine justices, from its current size of seven.

You might be surprised to learn that the North Carolina Constitution has long given the legislature this power:
The Supreme Court shall consist of a Chief Justice and six Associate Justices, but the General

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