North Carolina Appellate Practice Blog

Fox Rothschild's blog about practicing law in North Carolina state and federal appellate courts

If you follow the Fourth Circuit, you know that there has been a noticeable increase in the number of en banc cases that the Court has taken, and in those cases there has been some sharp disagreement between the Judges.  See, for example, this prior blog post.  Or check out this post from our friends at the Maryland Appellate Blog. Today the full Court denied a motion for emergency injunctive relief relating to the…
In its most recent set of petition rulings, the Supreme Court of North Carolina added five new cases to its discretionary docket.  These cases involve: the scope of the North Carolina False Claims Act; the evidence required for a criminal threats conviction; whether satellite-based monitoring constitutes an unreasonable search; personal jurisdiction in the age of cell phones; and the interpretation of automobile insurance policies. In addition, the Supreme Court issued two decisions from its…
A writ of certiorari is a discretionary, extraordinary writ—and is therefore never granted as a matter of right. See, e.g., King v. Taylor, 188 N.C. 450, 451, 124 S.E. 751, 751 (1924) (explaining that the writ “is allowed only on a reasonable show of merits and that the ends of justice will be thereby promoted”). Not surprisingly, it has long been the rule that a party seeking a writ of certiorari must explain why the…
North Carolina General Statute § 7A-30(2) allows for an appeal as of right to the Supreme Court of North Carolina from “any decision of the Court of Appeals rendered in a case…in which there is a dissent.”  Seems pretty straightforward, yes?  If the Court of Appeals issues a decision and one of the judges writes a dissenting opinion, then the losing party can automatically get the case to the Supreme Court, right?  Well, not necessarily. In…
Another week, another published ruling on an en banc rehearing petition from the Fourth Circuit.  Last week we saw Judge Niemeyer arguing in a published concurring opinion that en banc review should be denied so that the case of Gavin Grimm could proceed more quickly to the Supreme Court.  (Conversely, Judge Wynn concurred with the denial on the grounds that the panel majority was completely consistent with Supreme Court’s recent precedent, and thus there…
A few years ago I wrote about The Curious Cases(s) of the Published Denial of Rehearing.  In that post,  which focused on two published denials of rehearing from the Fourth Circuit in the span of a week, I noted a prior instance of this relatively rare occurrence in the much publicized case of Gavin Grimm (then known in the caption as “G.G.”), the transgender male Virginia high school student who sought to use the
The Fourth Circuit announced today that in-person oral arguments would continue to be suspended for the October 27-30 argument session.  As with the September session, cases assigned to pre-argument review “will be scheduled for argument by video-conference or teleconference, submitted on the briefs, or continued to a later session, at the direction of the panels in each case.” Link to announcement is here. –Patrick Kane…
Requesting that trial judges modify their judgments or orders is not for the faint of heart.  Informing a trial judge that he or she has likely goofed is not fun, but it is often necessary.  Indeed, the Appellate Rules usually force litigants to alert trial judges to potential errors in the hopes that they will fix their errors—saving valuable judicial and party resources by obviating the need for an appeal.  See Elizabeth Brooks Scherer &…
Matt blogged last week on Doe v. City of Charlotte, in which we were given multiple lessons in both how to and how not to handle an appeal.  Authoring Judge Dietz’s pre-bench experience as an appellate practitioner shows. This month, we were also treated to State v. Smith (No 119PA18, filed 14 August 2020), a helpful opinion from the Supreme Court detailing an aspect of issue preservation in criminal cases that the Court addressed earlier…