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How a Final Judgment Loses Its Finality

It’s a fairly common maneuver by plaintiffs’ attorneys: the trial court dismisses claims against some, but not all, defendants in a multi-defendant lawsuit, so the plaintiff voluntarily dismisses the remaining defendants in order to pursue an immediate appeal of the dismissal order.  The reason for this procedural wrangling is that while the lawsuit against the non-dismissed defendants is still pending, the dismissal order is interlocutory and, absent Rule 54(b) certification or an affected substantial right, that order is …Read More

Governor Cooper Sues to Challenge Bill Downsizing Court of Appeals

As previously blogged about here, here, here, and here, the North Carolina General Assembly recently passed a bill that would reduce the number of seats on the North Carolina Court of Appeals from 15 to 12.  Now the constitutionality of the bill is being challenged in court by North Carolina Governor Roy Cooper, who had vetoed the bill but then saw that veto overridden by the General Assembly.  Read about the Wake County …Read More

Initial En Banc Review Not the Only Unique Part of Fourth Circuit Hearing on Revised Travel Ban

As we discussed recently on this blog, the Fourth Circuit took the unusual step of ordering initial en banc review of President Trump’s revised federal travel ban.  But not only is the Court hearing the case en banc, it is also planning to allow the audio of the May 8 hearing to be broadcast in real time on C-SPAN.  This is, I believe, a first for the Fourth Circuit, which …Read More

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