North Carolina Appellate Practice Blog

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

An intriguing by-play between judges on the North Carolina Court of Appeals recently emerged into public view in the case of State v. Calvin Lee Miller. After shooting his wife, Miller was convicted of attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and possession of a firearm by a felon. One issue raised on appeal was the trial court’s admission of ballistics evidence, presented through the State’s…
Back in January I blogged about how frequently, and in what types of cases, the Fourth Circuit was issuing published opinions after submission on briefs–a new phenomenon in the Circuit made possible only by the pandemic-related suspension of Local Rule 36(a) by Standing Order 20-1.  See here and here.  At the time of those posts, the frequency of the Court’s use of the reprieve from the requirement to have argument for an opinion…
If there’s one thing we all remember from law school, it’s the old rule of common law that each dog gets one bite before the owner is on notice that the creature is dangerous. Though that rule has been refined over the years, the relationship between canine and human has been the topic of many an opinion. While none has matched Judge Harry Martin’s eloquence in State v. Wallace, 49 N.C. App. 475, 271 S.E.2d
In Dicesare v. Charlotte-Mecklenburg Hospital Authority, 2021 NCBC Order 10 (Apr. 6, 2021), the North Carolina Business Court determined that a trial court loses jurisdiction to rule on a pending Civil Rule 60(b)(6) motion once notice of appeal of the underlying judgment is given.  In issuing its ruling, Judge Robinson rejected the plaintiffs-appellants’ assertion that “a notice of appeal does not divest the trial court of jurisdiction to hear a motion pursuant to Rule…
Sad news for North Carolina appellate aficionados. Dan Horne, the Clerk of the North Carolina Court of Appeals, is retiring as of June 30, 2021. As he rides into the sunset, Dan takes with him an impressive amount of experience working in that Court. He began his tenure in 1990 as a law clerk for Judge (later Chief Judge) Gerald Arnold. Two years later, Dan joined the Court of Appeals Office of Staff Counsel as…
Usually, appellate counsel can confidently say that a grant of partial summary judgment, standing alone, will not allow for an interlocutory appeal.  A complete grant of summary judgment is a final, appealable judgment, but a partial grant is usually not appealable until the end of the case.  A recent published opinion from the Court of Appeals, however, staked out a new path. In Woody v. Vickrey, the litigants disputed whether Woody was competent to…
Under Appellate Rule 10, the general rule is that appellate courts only decide issues properly raised, argued, and decided in the trial tribunal.  But exceptions to this general rule exist for issues considered so fundamental that they are automatically preserved for appellate review by rule, law, or case authority.  Based on this second principle, the Supreme Court of North Carolina recently upheld the constitutionality of N.C. Gen. Stat. § 15-1446(d)(10)—a criminal procedure statute that…
As you no doubt have noticed, virtually every batch of opinions from our State appellate courts includes at least one “Rule 3.1” case involving allegations of abuse, neglect, or dependency.  What you may forget is that each of those cases involves an appellate attorney advocating for the best interests of the children.  Although the court system has some attorneys on staff, the children are most often represented by pro bono attorneys as part of the…
Have you ever wondered what it is like to be an appellate judge?  Are you interested in hearing about the future of our appellate courts? You are in luck.  Patterson Harkavy LLP is hosting a virtual discussion on Wednesday, March 31st at 12:00 p.m.  Viewers will have the opportunity to hear from former Chief Justice Cheri Beasley, former Chief Judge Linda McGee, and former Court of Appeals Judge Chris Brook.  According to the invitation, “the…