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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

COA Decisions Today

Posted on September 16, 2008
The NC Court of Appeals released 18 published opinions today. Seven are criminal cases; the other 11 are civil. More on these cases later.

NC COA LETS LITIGATION LOAN CASE PROCEED

Posted on September 03, 2008
In Odell v. Legal Bucks, LLC, the NC COA let the plaintiff proceed with usury, Consumer Finance Act and UDTPA claims against defendant Legal Bucks, a business that makes loans to litigants based on reviews of their cases' merits.In Odell, the plaintiff in a personal injury case had financial difficulties and entered into an agreement with defendant Legal Bucks, whereby plaintiff received a $3000 loan and had to repay it from her recovery in her PI suit...

COA Says Voluntary Dismissal Without Prejudice Can Convert Interlocutory Order Into Appealable Final Judgment

Posted on September 02, 2008
Today in Goodman v. Holmes & McLaurin the Court of Appeals (COA) declined to dismiss an interlocutory appeal from an order granting and denying in part a Rule 12(b) motion to dismiss. The reason: after the order came down, the plaintiff voluntarily dismissed without prejudice the claims the trial court didn't dismiss, thus converting the interlocutory order into a final judgment, the COA said...

COA Holds That Equitable Defenses Don't Apply To Statute of Repose

Posted on September 02, 2008
Today in Goodman v. Holmes & McLaurin the Court of Appeals held that equitable defenses (e.g., equitable estoppel) don't toll a statute of repose unless the legislature specifically says so. This case involved the 4-yr statute of repose for professional malpractice actions.

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COA Holds That No Class Notice Required For Involuntary Dismissal Of Class Action

Posted on September 02, 2008
In Kitchin v. Halifax County today, Plaintiffs argued the trial court erred by dismissing their class action lawsuit because notice was not given to members of the class before dismissal. They invoked Rule 23(c), arguing that its notice requirement applies not only to voluntary dismissals, but also to dismissals granted by the trial court...

COA Issues Significant Arbitration Waiver Decision

Posted on September 02, 2008
Today the Court of Appeals (COA) issued a significant arbitration decision: the Court held that if a defendant loses a motion to compel arbitration, the defendant's failure to take an immediate interlocutory appeal may result in a waiver of the right to arbitration...

COA: No Sanctions Warranted For Rule Violations

Posted on September 02, 2008
Today in Yorke v. Novant Health, Inc. the Court of Appeals (COA) refused to dismiss an appeal (or issue any other sanction) despite several appellate rule violations. The appellant didn't timely settle the record on appeal (it was settled months beyond the deadline prescribed by the rules)...

COA Reiterates That Expert Fees Aren't Mandatory Costs

Posted on September 02, 2008
Today in Bennett v. Equity Residential, ERP Operating Ltd. P'Ship, the Court of Appeals reiterated that when a plaintiff voluntarily dismisses her case, Rule 41(d) doesn't require that the defendant's expert witness fees be assessed against the plaintiff as costs...

COA Frees Man Convicted of Kidnapping, Burglary, Etc.

Posted on September 02, 2008
In a case today involving the constitutional right to a speedy trial, the Court of Appeals tossed out the conviction of a man sentenced to more than 60 years in prison--for kidnapping, burglary, assault and battery, robbery with a dangerous weapon, and attempted first-degree sex offense, among other charges--holding that the State unfairly delayed his trial (for about five years)...

COA Rejects Suit To Obtain Share Of Pope Estate

Posted on September 02, 2008
Today, in a dispute concerning Raleigh's prominent Pope family, the Court of Appeals ruled that Jane Forbes Pope, the widow of John W. Pope, Jr., is not entitled to a share of the money that her late husband transferred to the Pope family trust, which later transferred the funds to the John William Pope Foundation upon his death...

COA Decisions Today

Posted on September 02, 2008
The Court of Appeals issued 26 published decisions today. Only three are criminal cases. More on these decisions later.

SPLIT SCT HOLDS CONTRIBUTIONS TO RETIREMENT ACCOUNTS NOT PART OF WORKERS' COMP. AVERAGE WEEKLY WAGE

Posted on August 27, 2008
In Shaw v. U.S. Airways, Inc., the NC SCT overruled the NC COA, holding that employer contributions are not to be included in "average weekly wage" in determining workers' compensation benefits.Shaw, an airline worker, hurt his back lifting luggage. The parties didn't dispute Shaw's entitlement to workers' compensation -- they did, though, disagree about whether the airline's contributions to Shaw's 401(k) and pension were part of Shaw's weekly wage from which the level of Shaw's workers' comp...

SCT Petitions and Perhaps Opinions

Posted on August 27, 2008
The NC SCT is scheduled to release decisions on petitions today - and perhaps some opinions will come out with them.

COA Opinions Today

Posted on August 19, 2008
The Court of Appeals released 22 published opinions today, 17 in civil cases, and 6 with dissents. More on those opinions later today.

COA Reverses Order Compelling Accounting Firm To Produce Records To DOR

Posted on August 05, 2008
Today the Court of Appeals (COA) ruled against the Department of Revenue (DOR), reversing a trial court order that compelled Ernst & Young (E&Y) to produce records relating to services it provided to Wal-Mart over a number of years. The COA remanded for in camera review, even though Wal-Mart hadn't requested it in the trial court...

COA Reminds: Don't Wait For Costs/Fees To Be Resolved Before Appealing Judgment

Posted on August 05, 2008
Today the Court of Appeals (COA) dismissed an appeal for lack of jurisdiction because the appellant filed the notice of appeal too late. The case is In re Will of Fannie J. Harts.This was a caveat proceeding. The caveator lost. The trial court entered judgment on May 21, 2007, but didn't address at that time the motion for costs and attorneys' fees...

COA Upholds Two Rule 11 Sanctions

Posted on August 05, 2008
Today the Court of Appeals upheld Rule 11 sanctions in two cases (see here and here).

Split COA Upholds UDTPA Judgment Based On Interruption/Disconnection of Electricity

Posted on August 05, 2008
Today the Court of Appeals (COA) upheld a treble-damages judgment for an unfair trade practice under G.S. 75-1.1, based on a campground operator's interruption and disconnection of electrical service. The case is Shepard v. Bonita Vista Properties, L...

COA Decisions Today

Posted on August 05, 2008
The Court of Appeals released 44 published opinions today, of which 20 are criminal and 24 are civil (one-third of which are domestic or juvenile cases). More on these cases later.

Split Fourth Circuit: N.C. Courts Wouldn't Give Collateral Estoppel Effect To N.C. Default Judgment Arising From Discovery Sanction

Posted on July 28, 2008
Today the Fourth Circuit split over an unresolved issue of N.C. law: whether a state default judgment, entered as a penalty for a party's failure to comply with a N.C. court's discovery order, has collateral estoppel effect in subsequent litigation (in this case, litigation in bankruptcy court)...

COA Applies Heightened Pleading Standard To Wrongful Discharge Case

Posted on July 15, 2008
Today in Gillis v. Montgomery County Sheriff's Dept., a wrongful discharge case, the Court of Appeals (COA) held that if a plaintiff relies on the public-policy exception to the at-will employment doctrine, the complaint must plead that exception with particularity...

COA Holds That Full Faith And Credit Clause Doesn't Permit Broad Collateral Review Of Class Action Settlements Approved By Foreign Courts

Posted on July 15, 2008
Today the Court of Appeals (COA) ruled that the Business Court erred in failing to give full faith and credit to a nationwide class action settlement approved in Illinois. The case is Moody v. Sears Roebuck & Co. (We represented Sears on appeal.)The COA held that when a court enters a judgment approving a class action settlement, the Full Faith and Credit Clause doesn't permit a second court to undertake a broad collateral review of the foreign judgment to decide for itself if the settlement comports with due process (e...

COA Reverses 2 Orders Granting New Trials

Posted on July 15, 2008
In two unrelated slip-and-fall cases, the COA today reversed the trial courts' setting aside jury verdicts and ordering new trials. In the one, Harrell v. Sagebrush of N.C., LLC, the COA held that the trial court abused its discretion -- a high bar -- when it ordered a new trial because the video of a deposition, the key testimony of which had already been read into the record, had been excluded...

COA To Practitioners: Perfect Your Service Before Voluntarily Dismissing

Posted on July 15, 2008
In Camara v. Gbarbera, the COA today made clear that practitioners should perfect service before voluntarily dismissing their cases. In Camara, the plaintiffs filed a personal injury negligence suit arising from an almost 3-year-old auto collision. And the statute of limitations for the suit was 3 years...

COA Reaches Merits, Affirms Summary Judgment In Medical Negligence Case, Despite Appellate Procedure Errors

Posted on July 15, 2008
In Azar v. The Presbyterian Hospital, the COA today reached the merits of a medical negligence case despite the appellant's substantial violations of the rules of appellate procedure. The appellant's errors: 1) The record lacked a summons or personal jurisdiction statement; 2) The hearing transcript was missing; 3) Documents in the record didn't show their filing dates; 4) The assignments of error referenced the wrong record page; 5) The standard of review was misplaced; 6) Not all factual statements in the brief had record cites; and 7) The statement of facts was argumentative...

COA Opinions Today

Posted on July 15, 2008
The NC COA published opinions today, including 14 civil published opinions. More on these cases to come...

Fourth Circuit Affirms Dismissal Of Defamation Suit Against NY Times Re: Post-9/11 Anthax Incidents

Posted on July 14, 2008
Today the Fourth Circuit affirmed summary judgment for the NY Times in a defamation suit arising from articles written by NY Times commentator Nicholas Kristof regarding the government's investigation of the post-9/11 anthrax incidents. The case is Hatfill v...

COA Splits On Personal Jurisdiction

Posted on July 01, 2008
Today in Rossetto USA, Inc. v. Greensky Financial, LLC, the Court of Appeals (COA) held that personal jurisdiction was lacking over one Georgia-based defendant but not over another. Judge Arrowood authored the majority decision, joined by Judge McCullough...

Today's COA Decisions

Posted on July 01, 2008
The Court of Appeals released 10 published decisions today, six of which are civil cases (involving annulment, underinsured motorist coverage, child support, a handgun license, retirement benefits, and personal jurisdiction). There was one dissent, and it was in the case dealing with personal jurisdiction...

Fourth Circuit Clarifies CAFA Removal Standards

Posted on June 30, 2008
Today in Strawn v. AT&T Mobility LLC the Fourth Circuit clarified the Class Action Fairness Act's (CAFA) removal standards.Today's case involved a class action filed in West Virginia state court against a cellular phone carrier (AT&T) alleging the carrier has a "pattern or practice" of automatically enrolling new cellular phone customers in a free trial of its optional Roadside Assistance service and then charging them $2...

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