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The Fourth Circuit issued an interesting, unpublished opinion on Tuesday in Kelly v. Conner  in which it sua sponte dismissed a party’s appeal for want of jurisdiction and remanded to the district court for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

Appellate Rule 28 and Abandonment of an Argument

A case with a history of appellate rules issues, see here, can now add a few more to its tally.  In State v. Coxton the Court of Appeals originally dismissed a criminal defendant’s appeal for failure to give proper notice of appeal and further denied the defendant’s petition for writ of certiorari because it was filed more than eight months after the judgment being appealed from without any explanation for the delay.  The defendant appealed …Read More

Fourth Circuit Favors Functionality Over Formality

In Chief Judge Gregory’s first published opinion since assuming his new role, the Fourth Circuit indicated yesterday that functional compliance with jurisdictional rules trumps formal compliance.  In Clark v. Cartledge, the Court addressed whether a pro se plaintiff’s filing of a request for an extension of time to request a certificate of appealability qualifies as the notice of appeal required by Rule 3 of the Federal Rules of Appellate Procedure when a …Read More