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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

Fourth Circuit: Arbitrator May Certify Opt-Out FLSA Class, Desite FLSA's Opt-In Requirement

Posted on January 28, 2008
Today, in Long John Silver's v. Cole, a collective action brought in arbitration under the Fair Labor Standards Act (FLSA), the Fourth Circuit confronted the following conflict. On the one hand, the FLSA contains an "opt-in" provision: section 16(b) of the FLSA says that "[n]o employee shall be a party plaintiff to any ...

SCT: Punitive Damages Unavailable Against Deceased Wrongdoer

Posted on January 27, 2008
On Friday, in Harrell v. Bowen, the NC Supreme Court held that punitive damages are unavailable when the wrongdoer is dead.Writing for the Court, Justice Brady relied on the plain meaning of G.S. § 1D-1. Entitled "Purpose of punitive damages," it provides: ?Punitive damages may be awarded, in an appropriate case and subject to the provisions of this Chapter, to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts...

NC SCT Declares Arbitration Agreement Unconscionable In Landmark Case

Posted on January 26, 2008
On Friday, a fractured NC SCT held in Tillman v. Commercial Credit Loans, Inc. that an arbitration agreement attendant to a consumer loan was unconscionable -- a first in NC appellate law. In the wake of that opinion, businesses will have to grapple with how to secure arbitration agreements with consumers while ensuring that they expose themselves to neither "bargaining naughtiness" nor substantive unconscionability claims...

Fourth Circuit Banter On Suppression Of Evidence

Posted on January 25, 2008
This is off subject for this blog, but today's Fourth Circuit decisions include a very interesting dispute between Chief Judge Williams (writing the lead opinion) and Judge Gregory (dissenting) on the issue of "reasonable suspicion" in the context of a Terry stop -- and in particular whether a seasoned officer's hunch can satisfy that standard...

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NC Supreme Court Action Today

Posted on January 25, 2008
Today the NC Supreme Court released orders and opinions.As for opinions: the Court released 12 decisions. Six are per curiam reversals or affirmances. The other six are opinions. The 12 decisions include five reversals. Four of the 12 decisions are termination-of-parental-rights cases (the Court of Appeals had reversed termination in several cases); it appears that, when the dust settles from the various affirmances and reversals in these cases, the result in each case is termination of parental rights...

Fourth Circuit Upholds ADA Punitive Damage Award

Posted on January 23, 2008
Today in EEOC v. Federal Express Corp. the Fourth Circuit rejected a challenge by FedEx to a punitive damages award in an ADA case. A jury found an ADA violation and awarded the employee $100,000 in punitive damages on top of $8,000 in compensatories...

Split Fourth Circuit Panel Rules Against Employer In ADA Case

Posted on January 23, 2008
Today in Wilson v. Phoenix Specialty Mfg. Co. the Fourth Circuit affirmed an ADA judgment against an employer. The district court, after a bench trial, found that the employer terminated plaintiff's employment because it regarded him as disabled by his Parkinson's disease, i...

Split Fourth Circuit Affirms Denial Of Benefits In ERISA Case

Posted on January 23, 2008
Today in Stanford v. Continental Casualty Co., an ERISA case, the Fourth Circuit affirmed the denial of long term disability benefits to an employee who was at risk of relapse into drug addiction for a painkiller-narcotic he administered in the course of his employment as a trained nurse anesthetist...

SCT To Issue Decisions This Friday

Posted on January 22, 2008
As a reminder, the NC Supreme Court is scheduled to issue orders, and presumably also opinions, this Friday, January 25.

Fourth Circuit Nominee Withdraws

Posted on January 21, 2008
Duncan Getchell of Virginia, one of President Bush's more recent Fourth Circuit nominees, has withdrawn his nomination after concluding that Democrats in the Senate would block confirmation.

NC COA Splits Over NC SCT Authority V. US SCT Authority

Posted on January 16, 2008
In Andrews v. Haygood, a divided COA panel held that NC's Division of Medical Assistance has an automatic lien on all settlement funds of a medicaid recipient. The COA majority based its ruling on NC precedent, while Judge Wynn, dissenting, would have held that US SCT precedent should have been considered and controlled...

4th Circuit Refuses to Delve Into N.C. Tax

Posted on January 16, 2008
The Fourth Circuit, in DIRECTV, Inc. v. Tolson, refused last week to delve into the arena of NC state taxation. DIRECTV and Echostar Satellite, LLC brought suit, arguing that a state taxation system was unconstitutional. The Fourth Circuit affirmed the dismissal of the suit and held that federal courts won't enjoin states from levying taxes, won't alter the state's allocation of taxation authority, and that suits alleging constitutional violations due to state taxation are barred in federal court so long as state courts also provide adequate remedies.

Split COA Invalidates Restrictive Covenants

Posted on January 16, 2008
Yesterday the Court of Appeals (COA) held in a split decision that restrictive covenants were enforceable on the ground that they weren't sufficiently definite. The case is Southeastern Jurisdictional Administrative Council, Inc. v. Emerson. It is an important case about how to draft covenants for developments and whether owners/developers can lawfully collect service fees from lot owners when their restrictive covenants don't delineate the fees...

Justice Timmons-Goodson Addresses Fort Bragg

Posted on January 16, 2008
Here's a story on Supreme Court Justice Timmons-Goodson's address yesterday at a Fort Bragg event honoring MLK.

COA Starts New Year With Mass Reversals

Posted on January 15, 2008
Of the 34 published opinions released today by the Court of Appeals (the first batch of opinions for 2008), 17 of them -- 50% -- reversed or vacated trial court orders in whole or in part. Obviously that's a pretty high reversal rate.

COA: State's Alter Ego Allegation Insufficient To Establish Personal Jursidiction

Posted on January 15, 2008
Today in State v. Ridgeway Brands Mfg., LLC the Court of Appeals (COA) rejected the State's effort to establish personal jurisdiction over an Arizona corporation in a suit to collect money arising from obligations under the tobacco Master Settlement Agreement...

COA Vacates Criminal Contempt Because It Was Based On Acts Occuring After Show Cause Order

Posted on January 15, 2008
Today in State v. Coleman the Court of Appeals (COA) clarified that (generally) a party cannot be held in criminal contempt based on acts committed on dates other than the dates charged in the show cause order. In this case, after the plaintiff moved to hold the defendant in criminal contempt for violating a TRO, the trial court issued a show cause order, which in the criminal contempt context is akin to an indictment...

COA Holds That Prelim Injunction Entered Without Notice Is Immediately Appealable

Posted on January 15, 2008
Today in Perry v. Baxley Dev. Co., the Court of Appeals (COA) held that a preliminary injunction (PI) entered without notice affects a "substantial right" and thus is immediately appealable even though it's an interlocutory order. (Under NC law, like federal law, a PI can issue only after notice and a hearing...

COA Splits On "Substantial Fault" Standard For Unemployment Benefits

Posted on January 15, 2008
Today the Court of Appeals (COA) issued a split decision applying the "substantial fault" standard governing unemployment benefits claims. The majority (Judges McGee and Elmore) ruled in favor of the employee and reversed the decision of the Employment Security Commission (ESC)...

COA Reminds: Rule 60 Is Not Substitute For Appeal

Posted on January 15, 2008
Today, in Catawba Valley Bank v. Porter, the Court of Appeals (COA) delivered a harsh reminder: if a judgment is entered against your client based on an error of law, you must appeal the erroneous judgment rather than seek relief pursuant to Rule 60; if you seek Rule 60 relief rather than appealing, you will bound by the erroneous judgment, even if the trial court agrees with you...

COA Opinions Released

Posted on January 15, 2008
Today the Court of Appeals released its first batch of opinions for 2008. There are 34 published opinions, of which 14 are criminal and 20 are civil. There appear to be eight dissents. More on these decisions later.

COA To Hear Wake Schools Case Tomorrow

Posted on January 08, 2008
Tomorrow the Court of Appeals will hear argument in the highly publicized case arising from the Wake County School Board's plan to convert 22 elementary and middle schools to a mandatory year-round schedule. In a challenge to the plan brought by a parents' group, Judge Howard Manning ruled against the Board, holding that the students couldn't be reassigned to year-round schools without parental permission...

"My Computer Ate My Homework" May Work To Extend Notice Of Appeal Deadline At Federal Level

Posted on January 04, 2008
The federal courts seem to take a softer approach to violations of their rules of appellate procedure than NC's courts have, particularly over the past 2 years. An example of this was seen today, when the U.S. Court of Appeals for the Federal Circuit held in Gilda Industries Inc...

More On Last COA Drop

Posted on January 03, 2008
As Sean noted below, the next COA drop date is not for another 12 days. In the interim, some more about the cases from the last COA drop in December:Baker v. Lanier Marine Liquidators, Inc.:In Baker, the COA held that the trial court had personal jurisdiction over a Georgia defendant in a case brought by an NC consumer...

Schedule For January 2008

Posted on January 02, 2008
As we embark on 2008, here are a few scheduling items of interest:* Opinions: The NC Court of Appeals has only one opinion drop this month, and it's on Tuesday January 15. The NC Supreme Court is scheduled to release orders (on petitions) on January 25, and because the Court typically releases opinions the same day, we can expect opinions that same day...

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