The Court of Appeals’ opinions from two weeks ago contain a hodgepodge of appellate nuggets that could not be ignored–despite the hustle and bustle of the impending holidays and the last two days excitement over breaking Supreme Court news.
Tetra Tech Tesoro, Inc. v. JAAAT Tech. Servs., LLC
First, We told you months ago that filing a Rule 59 motion after anything other than a trial can be dangerous. That advice still stands
In Tetra Tech, the Court of Appeals held that a self-styled “Rule 59” motion to alter or amend a judgment does not toll a party’s deadline for filing a notice of appeal from an interlocutory order. Providing one of the most detailed analyses to date on this issue, Judge Dietz also warned practitioners that Rule 59 likely “only applies to post-trial motions.” While the opinion also states that Rule 59 “applies only after a trial on the merits or, at a minimum, a judgment ending a case on the merits,” don’t be surprised if Rule 59 does not toll your deadline for filing an appeal from any non-trial order—interlocutory or final. Granted, conflicting Court of Appeals opinions exist on this last point. See, e.g., Rutherford Plantation, LLC v. Challenge Golf Grp. of Carolinas, LLC, 225 N.C. App. 79, 86, 737 S.E.2d 409, 414 (2013). Thus, this issue seems well-suited for the Court of Appeals’ new en banc review authority.
Interestingly, while the appellant’s appeal from the underlying preliminary injunction order was dismissed as untimely, the Court of Appeals nonetheless reviewed the trial court’s denial of a motion to modify the preliminary injunction order. However, does a trial court’s interlocutory ruling on a motion to modify a preliminary injunction affect a substantial right? The Court of Appeals quoted case law stating that the preliminary injunction order affected a substantial right, but a motion to modify a preliminary injunction seems like it could be a different beast. For example, just because you have the right to immediate appellate review of an interlocutory order does not mean that there is a right to immediate appellate review of a motion to reconsider that order—especially if the party failed to timely appeal the underlying order. On the other hand, the trial court did modify the preliminary injunction. Perhaps the Court of Appeals’ decision in this case reflects an understanding that by modifying the prior preliminary injunction, the trial court had superseded the earlier preliminary injunction order (making any appeal from the initial order moot?). Alternatively, perhaps facts arose between the granting of the preliminary injunction and the motion to modify that resulted in the order to modify implicating substantial rights. In any event, I would be surprised if the Court was implying that all orders denying a motion to modify affect substantial rights.
That said, if the motion to modify had not been immediately appealable, the Court of Appeals would likely have reached a different outcome on the final Tetra Tech issue: whether the trial court erred in imposing sanctions on the appellant for violating the preliminary injunction order. The Court of Appeals concluded that under N.C. Gen. Stat. § 1-294, the trial court lacked jurisdiction to conduct contempt proceedings and impose sanctions because the preliminary injunction order was being challenged on appeal. While noting that the General Assembly had recently amended § 1-294 to create exceptions to the general rule that an interlocutory appeal divests a trial court of jurisdiction, the opinion also noted that the Supreme Court had not yet amended the Appellate Rules in response to this statutory change.
One last note on Tetra Tech. The opinion is careful to explain that the trial court is free on remand to conduct contempt proceedings and to generally manage this case. However, the opinion concludes by handing out some free case management advice. A central issue in this case is apparently whether a North Carolina statute that invalidates certain types of forum selection clauses is enforceable for federal construction projects. The opinion suggested that “before the parties in this action pursue multiple, costly parallel suits in parallel jurisdictions, at considerable waste of judicial resources, it might be sensible for the trial court to … determine whose law applies at the site of these projects and thus whether the forum selection clause is enforceable or not.”
State v. Ledbetter & State v. Biddix
Second, an update on State v. Biddix and State v. Ledbetter. If you recall, one hot-bed issue in criminal law has been whether Appellate Rule 21’s failure to explicitly reference a particular form of certiorari review means that the Court of Appeals 1) does not have jurisdiction to hear these petitions, and 2) if it has jurisdiction, is the Court of Appeals required to invoke Appellate Rule 2 to hear these certiorari petitions? We previously blogged on these issues here , here, and here. The Supreme Court appeared ready to weigh into this arena again based on a dissent from Judge Geer in Biddix. However, right before oral argument, the Biddix defendant-appellant withdrew his appeal. (Sigh!)
The Supreme Court recently remanded Ledbetter I to the Court of Appeals for reconsideration in light of the Supreme Court’s opinions in Thomsen and Stubbs. These cases held that if certiorari review is statutorily authorized, the appellate courts have jurisdiction to issue these writs even if Rule 21 fails to specifically authorize a particular type of writ review. On remand in Ledbetter II, the Court of Appeals stated in response to the remand:
Our initial opinion in this case neither denies, nor purports to limit, this Court’s jurisdiction to issue the writ under N.C. Gen. Stat. § 15A-1444(e), or any other statute. The issue in the present case does not pertain to the existence of appellate jurisdiction under the statutes. Rather, the issue pertains to the “govern[ing] procedure” and processes available to properly exercise our jurisdiction and guide our discretion of whether to issue a writ of certiorari, following a defendant’s guilty plea. Defendant’s petition, purportedly under N.C. Gen. Stat. § 15A-1444(e), does not invoke any of the three grounds set forth in Appellate Rule 21 to guide this Court’s discretion to issue the writ under this Rule to review her guilty plea.
Because “no procedural mechanism exists under that Rule to issue the discretionary writ of certiorari to review the trial court’s judgment … under N.C. Gen. Stat. § 15A-1444(e),” the Court of Appeals held that writ review could only issue if the Court exercised its discretion to invoke “Rule 2 to suspend the Rules”—which the Court declined to do.
Now that Judge Geer is no longer on the Court, it will be interesting to see if any other Court of Appeals judges adopt a more expansive view of Rule 21. Petition for en banc review anyone?