THE NUTS AND BOLTS OF A NORTH CAROLINA APPEAL: A walkthrough of the appeals process and common mistakes by counsel

Transcription

1 THE NUTS AND BOLTS OF A NORTH CAROLINA APPEAL: A walkthrough of the appeals process and common mistakes by counsel Judge Richard Dietz North Carolina Court of Appeals

2 CLE Agenda Is This Order Appealable? minutes Filing an Appeal... 5 minutes Staying Execution Pending Appeal/Appeal Bonds... 5 minutes Preparing the Record on Appeal minutes Motions Practice in the Court of Appeals... 5 minutes Appellate Briefs... 5 minutes Oral Argument... 5 minutes Petitions for Rehearing... 5 minutes Further Review in the Supreme Court... 5 minutes 60 Minutes

3 I. Final judgments Is This Order Appealable? A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. Veazey v. City of Durham, 231 N.C. 357, , 57 S.E.2d 377, 381 (1950). II. Partial final judgments certified under Rule 54(b) Rule 54(b) permits a trial court to certify an interlocutory order for immediate appeal: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim... the court may enter a final judgment as to one or more but fewer than all of the claims... only if there is no just reason for delay and it is so determined in the judgment. Practice Tip: Get the certification in the initial order. If, for some reason, the trial court signs and enters and order without the necessary language, ask for an amended order, not merely an order that says The prior order of XX date satisfies Rule 54(b) because Why? Because you can only appeal from the order with the Rule 54(b) language. While, as explained above, Lynch ultimately obtained a separate order from the trial court on 16 April 2014 purporting to certify for immediate appeal the 5 June 2012 order it had issued almost two full years earlier, the 16 April 2014 order is not the order from which Lynch seeks to appeal. BB&T v. Peacock Farm, Inc. III. Orders affecting a substantial right There is a huge body of case law governing what is, and is not, an order affecting a substantial right. Do your research if you think your order may satisfy the standard. Practice Tip: The best resource in North Carolina for interlocutory appeals is the Guide to Appealability of Interlocutory Orders, a publication of the Appellate Rules Committee of the North Carolina Bar Association. It is available from the NCBA website.

4 Filing an Appeal Timely filing notice of appeal is one of the most important steps in the process because the time for noticing an appeal is jurisdictional. This is one of the few areas where an appeal will be dismissed without a showing that the other side was prejudiced. Remember there are differences between civil and criminal appeals! Criminal can give oral notice of appeal, written notice within 14 days Civil written notice within 30 days. Appellant must file AND serve the notice on appeal before the deadline. Contents of a notice of appeal it must designate the order or judgment from which appeal is taken. To be safe, list discovery rulings and other pre-judgment, interlocutory decisions separately. Practice Tip: For business court cases, check when your case was designated as a business court case. Under the Business Court Modernization Act, cases designated after Oct. 1, 2014 are appealed directly to the Supreme Court. Also, be sure to file your notice of appeal at the same time both electronically and in the clerk s office of the county where the case originates. Staying Execution Pending Appeal/Appeal Bonds I. Money Judgments. Automatic stay pre-appeal: Money judgments are automatically stayed until the time for filing the appeal has expired. N.C. R. Civ. P. 62(a). Stay post-appeal: After time for appeal has passed, the appellant can obtain a stay of a money judgment by noticing a hearing under N.C. Gen. Stat to calculate the amount of the undertaking. Have a surety prepare an undertaking or bond for that amount. II. Non-money Judgments. For non-money judgments, the appellant must first move for a stay from the trial court and, if unsuccessful, file a motion for temporary stay and petition for a writ of supersedeas.

5 Preparing the Record on Appeal Appellate Rules 7, The record on appeal rules encourage over-designation. This is unfortunate but the best practice is to include everything in the record. Some basic concepts: What goes in the record? Almost anything can go in the record these days. If one party objects to a document s inclusion in the record, the other part simply puts it in the Rule 11(c) Supplement. No more judicial settlement. Again, the days of fighting over what s in the record before the trial court are over. Rule 11(c) permits judicial settlement only where there is a dispute over the accuracy of a piece of evidence or whether it was actually submitted to the court. Transcripts. Appellate Rule 7. Contract with the court reporter for preparation. Include in the record a copy of the contract and a statement of which particular transcripts will be submitted. Practice Tip: Remember to differentiate between deposition transcripts and trial or hearing transcripts. The former must be included in the record by the lawyers, typically in a Rule 9(c) or 9(d) Supplement. The latter are e-filed by the court reporter. Rule 9(d) Supplement. This is the home for color photographs, color charts, oversized documents and anything else that doesn t work in a printed record that will be photocopied in low-rez black and white. Practice Tip: Put page numbers on your 9(d) Supplement, for example 1a, 2a etc. Use a system that avoid confusion with record cites but helps judges find the documents. Serving the proposed record. The appellant must serve an actual copy of the entire proposed record. This is a common mistake by counsel. A list of documents to be included, or a proposed table on contents, is insufficient. Objections and Amendments. As the Appellee, your only obligation is to inform the Appellant s counsel of any objections, and provide any additional material to be included in the record. Failure to respond with objections or amendments means the proposed record becomes the settled record.

6 Motions Practice in the Court of Appeals I. Motions for Extension of Time. Ordinarily, the Court will allow the first motion for extension of time to file a brief, if good cause is shown. Practice Tip: Explain why you need the extension press of other cases, difficulty communicating with client, complicated record, etc. In the past, motions that fail to include any specific reasons have been denied. II. Motion to Dismiss Appeal: A motion to dismiss for failure to prosecute the appeal (i.e., no record has ever been served or filed) should be filed in the trial court. Motions to dismiss for lack of appellate jurisdiction must be made to the Court of Appeals. Practice Tip: Be prepared to have your motion to dismiss referred to the merits panel. This happens is most cases. Reference your motion in your appellate brief. Appellate Briefs Appeal Information Statement. This is due at or before the time for filing the Appellant s brief. It is important for the Court, but also for the litigants. It includes the request for oral argument, which many judges consider when deciding whether a case should be orally argued. Formatting. The formatting rules are contained in Rule 28 and in the Appendix. Practice Tip: The Appellate Style Manual, a publication of the Appellate Rules Committee of the North Carolina Bar Association, has go-bys for all sections of appellate briefs. The manual is available on the Bar Association website. Content. The most common content mistakes in briefs are failure to include the Statement of Grounds for Appellate Jurisdiction and failure to identify the appropriate standard of review. Also, provide record citations for all facts described in the brief. Reply Briefs. Appellants are now permitted to file a reply brief is all appeals under Rule 28(h). Reply briefs must be filed within 14 days of service of the Appellee s brief. Some lawyers have mistakenly filed their reply briefs under the old rules, well beyond the 14 day time limit. This can result in the Court striking the brief.

7 Oral Argument Time. Each side has 30 minutes. Multiple parties must share the 30 minutes; motions for additional argument time are rarely granted. Both the Court of Appeals and Supreme Court now have timers with green/yellow/red lights. But some Court of Appeals judges prefer not to use the timers, so be prepared to adapt to the preference of the presiding judge on the panel. Signing the brief. Only lawyers who have signed the brief may present oral argument. If you are added to the case after briefing, sign the brief in the clerk s office before argument. When e-filing, use the language in Rule 25, which permits signing on behalf of all lawyers electronically. Petitions for Rehearing When appropriate? A petition for rehearing may be filed where the Court of Appeals panel or Supreme Court overlooked or misapprehended the law or facts. Practice Tip: Petitions for rehearing in the Court of Appeals ordinarily are effective only to point out an unquestionable error, such as misstating and undisputed fact or overlooking controlling authority on an issue. Certificates from Lawyers. A petition for rehearing must be accompanied by at least two certificates from lawyers who certify that the decision is erroneous. Further Review in the Supreme Court Notice of Appeal. Notice of appeal based on dissent or substantial constitutional question. Practice Tip: Notices of appeal based on a substantial constitutional question routinely face a motion to dismiss on the ground the constitution question isn t substantial. Consider a conditional petition for discretionary review. Discretionary Review. Don t focus on the merits. Explain why your PDR satisfies the statutory criteria for discretionary review. But, also explain why you will win. In most cases taken on discretionary review, the Supreme Court ultimately reverses.