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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 …Read More

It Never Goes out of Style

The Appellate Rules Committee has updated the Appellate Style Manual, which is intended to give practical examples and tips for those practicing in North Carolina’s appellate courts.  Though not a substitute for the Rules themselves, it may be helpful to consult the style manual in light of the recent changes to the North Carolina Rules of Appellate Procedure. The revised version can be found here. –Kip Nelson Please follow and …Read More

Come One, Come All: NCBA Appellate Practice CLE

Coming up this week is an invaluable resource for appellate practitioners new and old: the Appellate Practice Section’s annual CLE. This year’s presentation will include segments on amicus briefs, technology in the appellate courts, briefs in the digital age, and preparing for oral argument. The seminar begins at 8:30 a.m. on Friday, September 15th at the North Carolina Bar Center. The brochure and registration information can be found here. –Kip …Read More

Which Orders Can Be Included In A Cross-Appeal?

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? …Read More

Between a Rock and a Hard Place: Court of Appeals Requires In Camera Materials Be Included in the Record on Appeal

What should you do if your client has documents that you contend should not be disclosed to the other side but the trial court orders their disclosure? What if the trial court orders the documents to remain confidential but opposing counsel wants to challenge that decision on appeal? Can an appellate court review the propriety of a disclosure order without reviewing the documents themselves? And if not, how do you …Read More

Court of Appeals Doubles Down on Deadlines: Notice of Appeal Really Can Be Filed Too Early

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.” Last week, the Court of Appeals provided some clarification …Read More

Mike Morgan Joins the Supreme Court

Newly elected  Mike Morgan was officially installed as the newest associate justice of the Supreme Court of North Carolina in a ceremony held yesterday in Raleigh.  Justice Morgan will take his seat in the junior associate spot, the furthest to the right when facing the bench. More information about and pictures from the event can be found here. –Kip Nelson Please follow and like us:

A Lesson in Helping Verbs: When You May, Might, or Must Appeal

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. Despite the …Read More

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 Court …Read More

Supreme Court of North Carolina Adopts New Rule to Avoid Deadlock

During the last year, there have been a number of matters decided by an evenly-split vote at both the U.S. Supreme Court and our state Supreme Court. At the U.S. Supreme Court, such cases are simply affirmed. See, e.g., United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam); Dollar Gen. Corp. v. Miss. Band of Choctaw Indians, 136 S. Ct. 2159 (2016) (per curiam). But at the state …Read More