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In A Final Judgment Appeal, Must The Appellant Argue That The Appeal Affects A Substantial Right?

Last week, a rather unusual (but certainly not unique) question of appellate practice and procedure reared its head.  In an appeal from a final judgment, can the appellate court’s opinion destroy jurisdiction? And if so, is the appellant required to anticipate the destruction of final judgment jurisdiction by arguing in the alternative that the remaining orders on appeal affect a substantial right (or some other interlocutory jurisdiction statute)? The Court …Read More

Interlocutory Appellate Jurisdiction: Should The Courts Analyze The Merits First?

On Tuesday, the North Carolina Court of Appeals issued its latest batch of opinions.  An opinion that caught my eye represents a trend in the Court of Appeals of collapsing the substantial right jurisdictional analysis into the merit-based analysis of the underlying issue being argued on appeal. Merits-jurisdiction intermingling is an issue that my colleague, Pat Kane, previously raised in two blog posts from 2012. See here and here.  Five years later, it has …Read More

Procedural Oddity: Fourth Circuit Publishes En Banc Opinion Without Oral Argument

The Fourth Circuit recently issued a published, en banc opinion overruling prior circuit precedent.  In an unusual move, however, the Fourth Circuit dispensed with oral argument before the entire court.  Local Rule 36(a) states that the court “will publish opinions only in cases that have been fully briefed and presented at oral argument.”  What procedural oddity led the Fourth Circuit to utilize Federal Appellate Rule 2 to suspend this requirement?  Check out Maryland’s Appellate Blog for all the …Read More

By the Numbers: 2016 Outcomes in Supreme Court Decisions

North Carolina’s appellate statistician, Kenzie Rakes, has more numbers for us. Kenzie’s pie charts break down the outcomes from last year’s appeals to the Supreme Court.  Which disposition was used most frequently in 2016?  Affirmed, modified and affirmed, reversed, or vacated? Check out the North Carolina Appellate Stats Blog for all the details. –Beth Scherer Please follow and like us:

North Carolina Supreme Court Stats-2016

Appellate statistician Kenzie Rakes has complied more stats from our appellate courts, this time on which Supreme Court justices wrote the most majority and dissenting opinions in 2016.  Did any of the Supreme Court justices come close to beating that pesky overachiever, Justice Per Curiam?   Read more here. -Beth Scherer Please follow and like us:

Listen To The Little Birdie: Expedited Oral Argument Now Possible In Rule 3.1 Cases

Confession. I don’t do Twitter.  Social media platforms like Facebook and LinkedIn already drive me semi-crazy. (How many posts do you scroll through before giving yourself permission to stop!?!? And why can’t everything be on one platform?!?!).  Judge Richard Dietz of the North Carolina Court of Appeals, however, has me searching for my twitter password.  On Monday, Judge Dietz tweeted the following: Tomorrow, the N.C. Court of Appeals will hold oral argument at a special …Read More

That Didn’t Last Long: General Assembly Nullifies Supreme Court Opinion With Record Speed, While The Supreme Court Grapples With Error Preservation Problems.

On June 9, 2017, the Supreme Court of North Carolina issued a unanimous opinion holding that when an employer admits the compensability of an injury under the Worker’s Compensation Act, the injured worker is thereafter entitled to a presumption that future medical treatments are causally related to the original compensable injury. Before the ink could dry on Wilkes v. City of Greenville, a “broad coalition of private and public organizations” …Read More

Should Appellate Courts Avoid Citations To Unpublished Opinions? Depends On Who You Ask

In the published opinion of State v. Hensley, a concurring opinion was devoted to a somewhat surprising issue: a disagreement regarding the majority opinion’s citation to a single unpublished opinion.  I suddenly have the attention of only the appellate nerds reading this blog. Under Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure, unpublished decisions of the Court of Appeals are not controlling legal authority. While Appellate Rule 30(e)(3) …Read More

The Court of Appeals Is Bound by Prior Panel Opinions—But Maybe Not!

As a champion of the appellate courts’ broad certiorari powers, I am eager for the Supreme Court of North Carolina to review the legal questions raised by cases such as State v. Biddix and State v. Ledbetter I and II.  For prior posts, see here , here, here, and here.  Those questions include (1) whether there is a conflict between Appellate Rule 21 and N.C. Gen. Stat.§  15A-1444(e), (2) if …Read More

Westlaw’s Mid-Year Update Does Not Incorporate Recent Appellate Rules Amendments

Whether at my desk or during courthouse visits, my Rules of Court book is usually close by.   As previously blogged about here, here, here, and here, the Supreme Court of North Carolina issued three orders between December 2016 and March 2017 that re-codified and amended the Appellate Rules.   In May 2017, Westlaw released a pocket supplement to its 2017 Rules of Court, which I dutifully added to the back of my book.  That pocket update purported to include all amendments to the Appellate Rules through …Read More