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Appellate Law

North Carolina Appellate Blog

Highlights developments in the appellate courts that affect business interests in North Carolina.
By Sean E. Andrussier

Post Frequency: 5.9/day

Last Entry: March 19, 2016 at 15:47:00

4th Circuit Slashes Attorneys' Fee Award

Posted on December 07, 2008
This past week (Dec. 3) the Fourth Circuit in Grissom v. The Mills Corp. vacated a $325,500 award in attorneys' fees and costs that was entered following plaintiff's acceptance of a Rule 68 offer of judgment (for $130,000) in a SOX whistleblower case...

4th Circuit Rules Against Employee In SOX Whistleblower Suit

Posted on December 07, 2008
This past week (Dec. 3) the Fourth Circuit, in Platone v. U.S. Dep't of Labor, concluded that the plaintiff's allegations to company management didn't qualify for whistleblower protection under the Sarbanes-Oxley Act (SOX), 18 U.S.C. § 1514A, because her allegations didn't definitively and specifically relate to fraud against shareholders...

4th Circuit: Arbitration Award May Be Final, Binding, And Judicially Enforceable Even If Arbitration Agreement Doesn't Explicitly Say So

Posted on December 07, 2008
This past week (Dec. 3) the Fourth Circuit decided a Federal Arbitration Act (FAA) case, Qorvis Communications, LLC v. Wilson, involving a failed attempt to prevent judicial confirmation of an arbitration award.Qorvis sued Wilson, its former executive employee, for breach of his employment agreement...

NC Supreme Court To Issue Decisions Dec. 12

Posted on December 05, 2008
The NC Supreme Court is scheduled to issue orders on petitions on Friday Dec. 12. We expect the Court to release its next batch of opinions that day too.

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COA Says Failure to Deliver Insurance Contract is Not a Per Se UDTP

Posted on December 03, 2008
In Defeat the Beat, Inc. v. Underwriters at Lloyd's London, the COA held that a failure to promptly deliver a copy of an insurance policy to an insured party is not a per se unfair or deceptive act. The plaintiff contended that defendants committed an unfair trade practice by failing to provide plaintiff with a copy of its insurance policy in violation of Section 58-21-45(a) of the Surplus Lines Act, which states "As soon as surplus lines insurance has been placed, the producing broker or surplus lines licensee shall promptly deliver the policy to the insured...

COA Decisions Today

Posted on December 02, 2008
Today the NC Court of Appeals released 19 published opinions. These include seven criminal cases (including a juvenile case), three workers' comp cases, two parental termination cases, and an equitable distribution case, plus six other civil cases. There were four dissents: three in workers' comp cases, one in a parental termination case...

COA Says Arbitration Clause Governing "Any Dispute" Includes Claim for Unfair and Deceptive Trade Practices

Posted on November 19, 2008
In Linsenmayer v. Omni Homes, an arbitration clause in a construction contract said that arbitration was the proper avenue should "any dispute arise relative to the performance of this contract that the parties cannot resolve[.]" The COA held that ?any dispute? included plaintiffs' claim that defendants were liable for unfair and deceptive trade practices, and the arbitrator could thus award treble damages...

Appellate Rules Violations Fail Dogwood Test, Sanctions Imposed

Posted on November 19, 2008
In Weeks v. Select Homes, Inc., the COA held that the plaintiffs' Appellate Rules violations rose to the level of a ?substantial failure or gross violation? under the standard established in Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co. (NC 2008)...

COA Says Rule 59 Motions for a New Trial May Be Filed Before Entry of Judgment

Posted on November 19, 2008
Yesterday the COA addressed an issue of first impression for North Carolina courts ? whether a trial court can hear a Rule 59 motion for new trial filed before the entry of judgment. The case is Xiong v. Marks. Rule 59 says that a motion for a new trial shall be served no later than 10 days after entry of the judgment, but does not specify whether a motion for new trial may be filed before entry of judgment...

Today's COA Opinions

Posted on November 18, 2008
Today the NC Court of Appeals released 15 published opinions. Six of them are in criminal cases, and two are in domestic cases. More on these cases later.

NC Supreme Court Hears Medical Ass'n-Death Penalty Case

Posted on November 18, 2008
Today the NC Supreme Court heard oral argument in N.C. Dep't of Correction v. N.C. Medical Board. The case concerns the Medical Board's recently adopted policy against physician participation in executions, which conflicts with state law requiring that a physician be "present" at an execution...

Fourth Circuit To Become More Liberal?

Posted on November 10, 2008
Here's an interesting article on how the Fourth Circuit might change under the new President.

Today's COA Decisions

Posted on November 04, 2008
Today the Court of Appeals issued 15 published decisions. Seven are in criminal cases, eight are in civil cases. More on these cases later.

Appellate Rule Violations Clear Dogwood Hurdle

Posted on November 04, 2008
Today the COA addressed on remand a case in which it had dismissed appeal for appellate rule violations. The case is Selwyn Village Homeowners Ass'n v. Cine & Co. When the case was last before the COA, the Court dismissed the appeal because of noncompliance with formatting requirements, including an improperly indexed margin, failure to single-space issues in the body of the brief, and an improperly indexed appendix to the brief...

COA Allows Battery Suit Againt Clay Aiken

Posted on November 04, 2008
Today the COA dealt with a lawsuit against Clay Aiken by an author who wrote a book about him. The case is Holleman v. Aiken. She sued him because he refused to endorse her book. The COA affirmed the tossing of that claim. But she also sued him for battery based on an incident with his bodyguard: Aiken had allegedly directed his bodyguard to remove her from a chair, which he did by grabbing her arm and yanking her...

COA Says Spoliation Isn't A Basis For Sanctions

Posted on November 04, 2008
Today in a case from the Industrial Commission the COA held that while spoliation of evidence can have evidentiary consequences (it can give rise to an adverse inference instruction), it is not itself a basis for sanctions in the absence of other independent statutory or rule violations authorizing the imposition of sanctions...

Cell Phone Contempt Reversed

Posted on November 04, 2008
Today, in State v. Phair, the COA reversed a contempt order issued against a criminal defense lawyer for keeping her cell phone on in court. Her cell phone rang during the State's questioning of a witness. The trial court ordered her to forfeit her phone so it could be destroyed, or to pay a $100 fine...

COA Warns Insurance Carriers

Posted on November 04, 2008
Today the COA confronted a weird insurance case. It was a car accident case in which the negligent defendant and his carrier never offered to settle, so the case went to a jury trial, at which the plaintiff prevailed, winning a damages of $9,055 and prejudgment interest of $875, for a total judgment of $9,930...

Today's COA Decisions

Posted on October 21, 2008
Today the NC Court of Appeals released 17 published decisions, five of which are (unanimous) criminal cases. Only one dissent among the cases. Not much controversy. More on these cases later.

Yesterday's Supreme Court Orders

Posted on October 11, 2008
Yesterday the NC Supreme Court released orders on petitions. The Court granted discretionary review in four cases: two criminal, two civil. One civil case, Blankenship v. Barlett, arises from a Court of Appeals decision holding that the constitutional principle of ?one person, one vote? doesn't apply to the election of judges...

Yesterday's Supreme Court Opinions

Posted on October 11, 2008
Yesterday the NC Supreme Court announced "opinions" in 11 cases. One of the cases was dismissed on the ground that discretionary review was improvidently allowed. Six of the cases involved one-sentence per curiam dispositions with no opinions: five affirmances and one reversal (the reversal was a workers comp case where the Court adopted a dissent in the Court of Appeals)...

Learn More About The Judicial Candidates In Upcoming Elections

Posted on October 08, 2008
You can learn about the Supreme Court candidates here and the Court of Appeals candidates here.

COA Opinions 10/7

Posted on October 08, 2008
The COA filed its latest batch of opinions yesterday, with 17 published civil cases. Only 1 of the 17 has a dissent -- Bird v. Bird, a domestic case, with Judge Jackson dissenting from a majority authored by Judge Arrowood.

Attorney Statement To Potential Witness Immune From Suit

Posted on October 08, 2008
In Jones v. Coward, the COA held that at attorney's statements made to potential witnesses, whether before or during trial, whether in or out of court, are privileged and cannot be the basis of a slander suit so long as they are not palpably irrelevant to a suit the attorney is working on...

COA: NC Has Persoanl Jurisdiction Over Broker Of Property Insurance

Posted on October 08, 2008
In Wells Fargo Bank v. Affiliated FM Ins. Co., the COA held that the trial court properly denied an insurance broker's motion to dismiss for lack of personal jurisdiction where the broker helped procure insurance on North Carolina property.The plaintiff alleged that the broker misrepresented that an apartment complex in Greensboro was insured but then failed to provide the coverage that the broker represented existed...

NC COA Forces State To Arbitration

Posted on October 08, 2008
In State v. Philip Morris US, INC, the COA enforced an arbitration provision in a settlement agreement between the state and tobacco companies over compensation for smoking-related medical costs, where the state contracted and arbitration was mandated by the contract.

Judicial Races

Posted on October 06, 2008
The Greensboro News-Record has endorsed Bob Edmunds to retain his Supreme Court seat. Justice Edmunds is from Greensboro.He also picked up the endorsement of Asheville's Citizen-Times, which says "Edmunds brings a thoughtful approach and calm, impartial demeanor to the bench...

Upcoming October Court Activity

Posted on October 01, 2008
The NC Court of Appeals doesn't release opinions today (even though 2 weeks have passed since the last release). The next release will be Tues. Oct. 7. Three days later, on Oct. 10, the NC Supreme Court is scheduled release orders on petitions, and thus we expect that the Court will also release opinions that day...

Former NC SCT Justice Webb Passes Away

Posted on September 20, 2008
Former Justice Webb, who served 12 years on the NC Supreme Court, passed away yesterday. Here's an article about his interesting life. A graduate of Columbia law school school, he practiced law in NY City, then in Wilson with Gov. Jim Hunt; he then became a trial judge, a Court of Appeals judge, and a Supreme Court justice.

COA Excuses Rule Violations

Posted on September 16, 2008
Today the Court of Appeals (COA) held that various violations of Appellate Rule 7 --regarding the preparation of the transcript ? didn?t warrant dismissal of the appeal. The case is Lawrence v. Sullivan.Appellant failed to file and serve written documentation of the transcript arrangement, as required by Appellate Rule 7(a)(1)...

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