I guess that every North Carolina lawyer doesn’t know that since October 2014, appeals of final decisions by the NC Business Court go directly to the NC Supreme Court instead of to the NC Court of Appeals.
You didn’t know that? Well you are not alone. The Notice of Appeal of Judge Gale’s Opinion in Zloop, Inc. v. Parker Poe Adams & Bernstein, 2018 NCBC 16 dismissing all of Plaintiff’s claims was addressed to the COA, not the Supreme Court. Judge Gale dismissed the appeal yesterday, in Zloop, Inc. v. Parker Poe Adams & Bernstein, 2018 NCBC 39.
In all other respects, the appeal was totally compliant with the Rules of Appellate Procedure. It was timely, and the Notice of Appeal was properly filed in Mecklenburg County.
There are a bunch of minefields along the path of a Business Court appeal. I’ve written about the ones that have exploded on an appealing party, like: not filing the Notice of Appeal in the county where the case originated, not including the Notice of Designation to the Business Court in the Record on Appeal, and like the Zloop Notice of Appeal, sending the Notice of Appeal to the wrong appellate Court.
The attorneys for the Defendant in the Zloop case, picking up immediately on the misdirection of the Notice of Appeal, moved to dismiss the appeal.
Plaintiff moved, in response, to be allowed to amend its Notice of Appeal to properly address it to the NC Supreme Court. By then, the thirty day period to file a Notice of Appeal had run out.
Judge Gale’s ruling was that he did not have jurisdiction to allow the amended Notice of Appeal and he granted the Motion to Dismiss the appeal.
Why was the trial court judge ruling on matters concerning an appeal? You might be thinking that the motion to amend the Notice of Appeal should have been decided by the appellate court. Rule 25(a) of the North Carolina Rules of Appellate Procedure seems to provide that. But the Rules also provide that a case is not fully before an appellate court until the Record on Appeal is filed, and that the trial court has jurisdiction over the case until then.
Couldn’t Judge Gale have shown some mercy for this minor error? Maybe you think that Judge Gale is too cold-hearted and that he could have given the Plaintiff a pass on this mistaken Notice of Appeal. Well, no, because as Judge Gale noted in his first decision on exactly the same issue (an unpublished decision, Christenbury Eye Center, P.A. v. Medflow, Inc., he had “no discretion to allow Plaintiff to amend [its] appeal.”
Can the NC Supreme Court still accept the appeal? Yes, as the NC Supreme Court has the power to allow a deviation from its own Rules. Appellate Rule 2, captioned “Suspension of Rules” specifically allows that. Maybe the High Court will show some empathy for this Plaintiff as the case involves issues of first impression: whether claims for professional malpractice can be barred by the doctrine of in pari delicto, and whether North Carolina recognizes a tort claim for aiding and abetting breach of fiduciary duty (the Business Court seems pretty sure that it doesn’t).
[Note: This is the first time in a long while that I have blogged about a case the day after the Opinion was handed down as opposed to a week later. That doesn’t mean that I have recovered my zip. It means that Judge Gale’s Zloop Opinion was only five pages long. I encourage more short Opinions. Those are easier for me to write about.]