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Tag Archives: appeal

Supreme Court Reaffirms That Non-Constitutional Sentencing Arguments Are Automatically Preserved for Appellate Review

In October 2018, I gave a CLE presentations with (now recently sworn in) Judge Allegra Collins: “Life Preservers on the Titanic: Issues Not Properly Preserved for Appellate Review.”  Part of the presentation posed this question: Can the General Assembly enact a rule or law that automatically preserves certain issues for appellate review?  At the time, the answer to that question was as follows: Yes.  See Duke Power Co. v. Winebarger, …Read More

Supreme Court Reverses Court of Appeals Application of Appellate Rule 2

Last Friday was a blockbuster appellate day for the Supreme Court of North Carolina. Not only did it effectively declare an appellate jurisdiction statute unconstitutional (see Matt’s blog post), but Justice Newby authored a concurring opinion inspired by “It’s a Wonderful Life.”  (“Was Old Man Potter simply morally corrupt or was he also guilty of a crime?”). For North Carolina’s appellate defenders, however, Friday was not a wonderful day. Out of 11 …Read More

The Court of Appeals Again Recognizes the Trial Court’s Jurisdiction to Decide the Appealability of Interlocutory Orders When Deciding Whether the § 1-294 Stay Applies

Generally speaking, an appeal stops all proceedings at the trial court level until the appeal concludes. However, as we have previously blogged (here, here, here, and here), there are limited circumstances where a trial court may move forward with a case during the pendency of an appeal.  In Plasman v. Decca Furniture (USA), Inc., the North Carolina Court of Appeals once again recognized a trial court’s authority to determine whether the …Read More

Are Certain Rule 60 Orders Unappealable?

Savvy practitioners know that some post-trial motions toll the deadline for filing a notice of appeal, but motions brought under Rule 60 of the Rules of Civil Procedure do not. So what happens when a trial court rules on a Rule 60 motion after the final judgment’s appellate deadline?  If the final judgment was not appealed, can a party appeal from the Rule 60 decision? The Court of Appeals recently …Read More

Ketchup, Catsup, Catch-Up: A Hodgepodge Of Important Appellate Decisions We Were Behind In Sharing

Holidays, snowstorms, vacations, workloads—mixed in with the winter blahs—have resulted in us getting a little behind on our blogging duties. The appellate courts, however, have not suffered from the same maladies, issuing several important appellate-practice-and-procedure decisions of late.  This special “Catch-Up” post hopefully gets us back on track for the New Year. Rule 54(b) Certification and Peacock Farms. The question presented in Peacock Farms was whether a Rule 54 certification …Read More

The Writ of Certiorari: A Somewhat Less Powerful Tool (Part II)?

Sometimes the juiciest info is found in the comments.  In October, I blogged about State v. Biddix—a Court of Appeals’ opinion that appeared to significantly limit the Court of Appeals’ certiorari authority under Appellate Rule 21.  Even though a state statute specifically granted a criminal defendant the right to challenge his guilty plea by writ of certiorari, the Biddix court held that this statutory authority was trumped by Appellate Rule …Read More

Wake County Lawsuit Challenges Retention Election Statute

Back in June, we blogged about the passage of a new law that created “retention elections” for sitting justices on the Supreme Court of North Carolina. Justice Bob Edmunds is the first justice to be affected by this statute’s provisions. Under the new legislation, voters in November 2016 will only decide whether they are “for” or “against” Justice Edmunds’ retention. In other words, the law does not permit a challenger …Read More

A Perfect Storm (Part II)—Yet Another Hidden Trap With The Business Court Modernization Act Emerges

Yesterday’s blog post focused on how the Business Court Modernization Act only applies to “actions designated as mandatory complex business cases on or after” October 1, 2014.  See Session Law 2014-102.  As that post demonstrated, the timing of when a case is designated to the North Carolina Business Court can create different (and unusual) pathways to appellate review. This follow-up post focuses on the phrase “designated as a mandatory complex …Read More

A Perfect Storm (Part I): How One Business Court Order’s Pathway To Appellate Review Is To Two Different Courts.

Over the past few months, we have shared several  potential problems created by the Business Court Modernization Act.  Nonetheless, we held a few potential traps close to our vest because, frankly, we were unsure if any of the unique circumstances necessary to trigger the traps would arise.  Recently, we changed our mind on the improbability of those scenarios based on an October 8 order from the North Carolina Business Court.  The …Read More

The Writ of Certiorari—A Somewhat Less Powerful Tool?

Yesterday’s batch of opinions contained an unusual nugget: an entire opinion devoted to arguably the most powerful of all appellate tools, the writ of certiorari. In State v. Biddix,  the Court of Appeals denied a petition for writ of certiorari by concluding that the court was prohibited from invoking certiorari to address an issue on appeal, rather than simply exercising its discretion to deny the petition.  [Note. After this blog was posted, …Read More