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Blog Archives

The Curious Case(s) of the Published Denial of Rehearing

Twice this week the Fourth Circuit took the relatively unusual step of issuing published opinions on orders denying rehearing of a case.  Ordinarily such orders are not published for the simple reason that there is no accompanying written opinion to publish.  Not so this week, however. On Monday the Court denied a request for panel rehearing and rehearing en banc in US v. Brown, a case involving criminal sentencing and due process.  …Read More

Court of Appeals Continues to Clarify, This Time With Respect to Burden of Proving Timely Appeal

The North Carolina Court of Appeals has started off 2018 with a trend of clarification.  As we noted last week, in this year’s first batch of opinions the Court clarified the applicable standard of review for a trial court’s decision on whether a party has waived a contractual right to arbitration. And now after the year’s second batch of opinions was released earlier this week, appellate practitioners have further clarity: if …Read More

This Holiday Season, A Reminder Not To Forget The (File) Stamps

If you don’t put postage stamps on your holiday cards, they aren’t going to make it to their intended destinations. Similarly, if you don’t have a file stamp on the order you are attempting to appeal, you aren’t going to get a ruling on the merits from the appellate court.  At least that’s what the Court of Appeals held in its opinion on Tuesday in McKinney v. Duncan, involving an …Read More

What Can You Argue to a Jury About a Witness’ Credibility? North Carolina Supreme Court Provides Some Guidance

Memo to trial lawyers in North Carolina: Do not tell the jury that a witness is a liar.  And you also shouldn’t imply that opposing counsel and an opposing expert witness assisted that witness in committing perjury. Such was the approach taken by the prosecution in a first-degree murder trial in Mecklenburg County. After the jury returned a guilty verdict on voluntary manslaughter, the Court of Appeals vacated the conviction and remanded …Read More

Immunity, Interlocutory Appeals, and the Industrial Commission

The intersection between sovereign/governmental immunity and interlocutory appeals continues to provide ample fodder for this blog. Following on the heels of the Court of Appeals’ thought-provoking opinion two weeks ago in Union County v. Town of Marshville  (blogged about here ), today the Court addressed the issue in Foushee v. Appalachian State University. Foushee involved a wrongful death action brought against Appalachian State University.  Because the university is an arm of …Read More

More E-Filing News: Fourth Circuit Implementing “NextGen CM/ECF,” Users MUST Update Their Accounts

Recently the Supreme Court announced that it was taking a step forward technologically (see here).  Today, the Fourth Circuit made a similar announcement, revealing that effective November 13, 2017 the Court will go live on “NextGen CM/ECF.”  The most significant change accompanying the implementation of this updated filing system will be that users will have a single PACER account that will allow them to file (and simply view) documents in all …Read More

More on the Incompleteness of a Record on Appeal

Recently we blogged about how the completeness, or lack thereof, of the record on appeal can be a deciding factor in the outcome of an appeal.  See here, discussing State v. Cobb. On Tuesday the Court of Appeals drove that point home even further, dismissing an appeal on the basis of an incomplete record.  In Columbus County Department of Social Services v. Norton, a father, proceeding pro se, appealed two …Read More

Who Gets the Benefit of the Doubt—the Record on Appeal or the Trial Court?

What is the Court of Appeals to do when the correctness of the trial court order being appealed turns on whether or not a certain document was presented to the trial court, but that document does not appear in the record on appeal?  That is the question that confronted the Court in State v. Cobb.  And in a split decision issued on Wednesday, the majority presumed that the record on appeal …Read More

Fourth Circuit Affirms that Plaintiffs Lack Standing to Challenge North Carolina Law Allowing Magistrates to Refuse to Perform Same-Sex Marriages

In a published opinion authored by Judge Wilkinson, the Fourth Circuit today rejected a challenge by three same-sex couples to the North Carolina law that allows county magistrates to refuse to perform same-sex marriages on the ground of “religious objection.”  The Court upheld the district court’s determination that the plaintiffs lacked standing to pursue a claim under the Establishment Clause.  The couples, who were all either married or engaged to be …Read More

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