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BREAKING NEWS: John Arrowood to Replace Judge McCullough on Court of Appeals

North Carolina Court of Appeals Judge Doug McCullough earlier today announced his retirement from the bench, effective immediately, only a month and a few days before he was to reach the mandatory retirement age on May 28.  Governor Roy Cooper immediately appointed former Court of Appeals judge John Arrowood to fill the seat left vacant by Judge McCullough’s early retirement.  This surprising chain of events appears to be directly related to proposed legislation that would reduce …Read More

A Jurisdictional Jamboree (including an RPR sighting!)

Tuesday’s batch of opinions from the Court of Appeals contained a smorgasbord of jurisdictional issues pertaining to interlocutory appeals. In no particular order: Department of Transportation v. Riddle This condemnation proceeding involved a partial taking by the North Carolina Department of Transportation (“DOT”). The Riddles owned a parcel of land that they had subdivided into seven separate lots. The DOT originally commenced the action by filing a complaint and declaration …Read More

Using Standards of Review to Prevail on Appeal

SML Appellate Practice Group members Andrea Cataland (Atlanta) and Kip Nelson (Raleigh/Greensboro), recently had an informative article featured in the latest issue of DRI’s For the Defense.  Andrea and Kip discuss the standards of review that must be applied by appellate courts to every issue they consider, and how appellate practitioners can effectively use this important legal principle in their advocacy before appellate courts. Click HERE for the full article. –Patrick Kane Please follow and …Read More

All Laws Are Not Created Equal

On Tuesday, the North Carolina Court of Appeals issued an opinion in Jackson/Hill Aviation, Inc. v. Town of Ocean Isle that reaffirmed the rule that North Carolina courts “cannot take judicial notice of municipal ordinances.”  The practical effect of that rule, as played out in Jackson/Hill Aviation, is that unless a municipal ordinance is specifically mentioned in a plaintiff’s complaint, a defendant cannot use that ordinance to defeat the plaintiff’s …Read More

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The Fourth Circuit issued an interesting, unpublished opinion on Tuesday in Kelly v. Conner  in which it sua sponte dismissed a party’s appeal for want of jurisdiction and remanded to the district court for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 a …Read More

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 recommendation to …Read More

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 …Read More

No Jurisdiction Means No Jurisdiction (Except When It Doesn’t)

There are few concepts that are as important to our nation’s jurisprudence as that of jurisdiction. As stated by the Supreme Court of the United States, “Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them . . . .” Rhode Island v. Massachusetts, 37 U.S. 657, 718 (1838).  “The statutory and (especially) constitutional …Read More

Why You Might Want to Make a Federal Case Out of Something

There are myriad reasons why, when given the choice, North Carolina litigators might want a case venued in federal court as opposed to state court (and depending on the circumstance, of course, the opposite is also true).  A list of these reasons might not typically include “more options if we lose,” but the reality is that in many instances the federal rules–of both civil and appellate procedure–provide more options to a losing party than the North Carolina …Read More

No Transcript? Maybe No Appeal.

About a month ago, the North Carolina Court of Appeals issued an unpublished opinion that underscored the importance of compliance with Appellate Rule 9(a), which provides that appeals from the trial division will be reviewed “solely upon the record on appeal, the verbatim transcript of the proceedings, if one is designated, and any other items filed pursuant to this Rule 9.” (emphasis added).  In Wilson v. Wilson, the pro se appellant failed to contract …Read More