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Are These Rhetorical Questions?

Tuesday’s batch of opinions from the Court of Appeals included several helpful reminders. None of these is especially earth-shattering, but the opinions do answer some questions that may be forgotten during the rough-and-tumble process.

Do you have to file a responsive pleading after dismissal is reversed on appeal?

Yes, you do. But when you have to do so is an open question. In Swan Beach Corolla, LLC v. County of Currituck, the government defendants moved to dismiss the plaintiffs’ claims before filing an answer. In an earlier appeal, the Court of Appeals affirmed dismissal of one claim but reversed dismissal of two other claims. The mandate issued on July 21st. On August 21st, the plaintiffs moved for entry of default because the defendants had not yet filed an answer. Six days later, the defendants moved to set aside the entry of default and submitted a proposed answer. The trial court refused to set aside the default and entered a default judgment. The defendants appealed again.

The Court of Appeals did not directly address the question of when the answer was due (and merely said that the defendants had presented a “colorable” argument). Rather, the majority held that the trial court abused its discretion in denying the motion to set aside the default. The dissent, on the other hand, contended that it would be “more prudent” to remand the matter for additional findings. In addition, the dissent opined that the defendants had 20 days to file an answer, see N.C. R. Civ. P. 12(a)(1), and stated that “failure to understand the law is not good cause to set aside entry of default.”

If the case is appealed to the Supreme Court, which it may be as of right in light of the dissent, it will be interesting to see how that Court grapples with these issues. Even if the current opinion does not provide a definite answer, the best practice is to file a responsive pleading within 20 days of entry of the mandate—or move for an extension of time.

Should a victorious party continue to make arguments in the trial court?

In Holmes v. Sheppard, the trial court granted summary judgment on the plaintiff’s claim of negligence. The defendants had earlier filed a motion to dismiss that claim, but the trial court concluded that the grant of summary judgment rendered the motion to dismiss moot. In opposition to the plaintiff’s appeal from the grant of summary judgment, the defendants reasserted the motion to dismiss arguments as an alternative basis in law for supporting the trial court’s judgment. See N.C. R. App. 10(c). The Court of Appeals held that because the motion to dismiss was never ruled upon, those arguments were not adequately preserved and were “not properly before our Court.”

This ruling presents a quandary for appellees. If the trial court rules in your favor, should you insist on obtaining rulings on other pending issues? Does the appellee have the same responsibility as the appellant to make sure that matters are properly preserved? Apparently yes—if the appellee wants to address those issues on appeal. For a further discussion of this matter, see our prior post here.

This case highlights an additional conundrum for appellees. If the trial court rules on an issue that is not addressed in the appellant’s opening brief, should the appellee discuss the issue? In that scenario, the appellee is in a tricky spot—having to decide beforehand whether to address certain matters, knowing that the appellee’s brief is probably the last chance it will have to explain the issues. In Holmes, the defendants chose to address the additional issue for the first time in their appellees’ brief. This maneuver potentially opened the door for the plaintiff to then discuss the new argument in his reply brief—which he did. But thankfully for the defendants, the Court said it would “not allow” the plaintiff “to use his reply brief to raise an issue on appeal that was not raised in his principal brief.”

Is an order on a personal jurisdiction issue immediately appealable?

Your gut reaction is probably to say “yes.” After all, our General Statutes specifically provide a “right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant.” See N.C. Gen. Stat. § 1-277(b). But in Stewart v. Shipley, the Court of Appeals reminded us that section 1-277(b) is not as broad as it might appear. There, the trial court granted a Rule 12 motion for lack of personal jurisdiction and insufficient service of process. In spite of section 1-277(b), the Court of Appeals dismissed the plaintiff’s appeal as being interlocutory. The Court explained that the statute only applies “when the jurisdictional challenge is substantive rather than merely procedural.” The defendants in Stewart were not asserting a traditional, constitutional-level personal jurisdiction challenge; they were asserting “procedural issues” regarding issuance and service of process. Therefore, section 1-277(b) did not apply, and the appeal was premature.

Is dismissal of an appeal for nonjurisdictional violations the death knell of the matter?

Once again, your natural instinct is likely a resounding “yes.” But one final opinion from this week’s batch provides a glimmer of hope for would-be appellants. In Kedar v. Patel, the trial court imposed sanctions for the defendant’s refusal to provide discovery in accordance with an earlier order. The defendant filed a timely notice of appeal . . . but was then dilatory in assembling and filing the record. The plaintiff moved to dismiss the appeal, which the Court of Appeals granted. But then, the defendant “filed a petition for rehearing, alleging that defendant’s delays were nonjurisdictional and did not justify dismissal.” The Court granted the petition for rehearing and proceeded to address the merits of the appeal. While practitioners should certainly not count on such grace from the appellate courts, this opinion could provide some modicum of comfort.

–Kip Nelson

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