STATE COURT APPEAL CRASH COURSE

Presented by Beth Scherer and Matt Leerberg of Smith Moore Leatherwood LLP1

*N.C. State Bar Board Certified Appellate Practice Specialists The road to North Carolina’s state appellate courts2 can be confusing and full of potholes, even for those who do appellate work every day. The course is marked by a web of rules, statutes, appellate opinions, and customs. This manuscript serves as a basic guide to the state appellate process, with links to additional information and resources. This summary is not intended to be exhaustive. Instead, it is intended to be an overview of the pit stops in the appellate process and a series of guideposts for practitioners. Any question about the procedure should start with the North Carolina Rules of Appellate Procedure (the “Appellate Rules”). For further information, we recommend consulting the North Carolina Appellate Practice Blog maintained by Smith Moore Leatherwood LLP’s Appellate Practice Group, which includes a number of additional resources. 1) STOP ONE: CAN YOU APPEAL?

a) Final judgments, which dispose of the entire case, can always be appealed. N.C. Gen. Stat. § 7A-27(b). i) An appeal from a final judgment can generally include previous

orders. N.C. Gen. Stat. § 1-278; Dep’t of Transp. v. Rowe, 351 N.C. 172, 176-77, 521 S.E.2d 707, 710 (1999). However, the best practice is to specifically list in the Notice of Appeal any interlocutory orders you intend to challenge, along with the final judgment. Charles

1 Special thanks to Kip Nelson of Smith Moore Leatherwood LLP for assisting in the preparation of this manuscript. 2 Appeals in federal court follow different procedures. For those cases, we recommend consulting the Federal Rules of Appellate Procedure and the Fourth Circuit’s Local Rules.

2 | P a g e

Vernon Floyd, Jr. & Sons, Inc. v. Cape Fear Farm Credit, ACA, 350 N.C. 47, 51, 510 S.E.2d 156, 158-59 (1999); see also Attachment A.

ii) Once the trial court enters an order that decides all substantive claims as to all parties, the mandatory deadline for appealing begins to run. Pending motions for attorney’s fees and costs are considered collateral to a final judgment on the merits and, therefore, will not toll a party’s deadline for filing a notice of appeal. Duncan v.

Duncan, 366 N.C. 544, 546, 742 S.E.2d 799, 801 (2013); see also

Attachment B. b) Interlocutory orders—orders that do not dispose of the entire case—can

only be appealed if a statute allows it. Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). i) Among other things, orders that a) affect a substantial right, b) in

effect determine the action, c) discontinue the action, or d) grant or refuse a new trial can be immediately appealed. N.C. Gen. Stat. §§ 1-277(a), 7A-27(b).

ii) Certain orders ruling on personal jurisdiction can be immediately appealed. N.C. Gen. Stat. § 1-277(b).

iii) Judgments that are final as to some, but fewer than all, parties or claims can be immediately appealed if the trial court certifies in the order that a party is seeking to appeal that there is no just reason for delay. N.C. R. Civ. P. 54(b); BB&T Co. v. Peacock Farm, Inc., -- N.C. App. --, --, 772 S.E.2d 495, 499, aff’d, 368 N.C. 478, 780 S.E.2d 553 (2015) (per curiam); see also Attachment C.

iv) Orders denying motions to compel arbitration are immediately appealable, N.C. Gen. Stat. § 1-569.28, as well as Business Court designation orders, id. § 7A-45.4. See also Attachment D.

3 | P a g e

v) The Appellate Rules Committee has published a comprehensive guide to the appealability of interlocutory orders.

2) STOP TWO: WHEN DOES THE APPEAL CLOCK START AND HOW DO YOU START THE APPEAL? a) Entry of a final judgment or appealable interlocutory order starts the

clock running for filing a notice of appeal. i) Per Rule 58 of the Rules of Civil Procedure, a judgment or order in a

civil case is entered when it is reduced to writing, signed by the trial court, and file-stamped by the clerk of superior court.

b) The notice of appeal is the document that starts the appeal process. i) For most cases, the notice of appeal must be in writing and signed

by counsel of record within 30 days of the entry of the final judgment or order being appealed. In criminal cases, a defendant can usually give oral notice of appeal, but notices of appeal in criminal cases must be given within 10 days. N.C. R. App. P. 4(a)(1). But see Attachment E.

ii) Any cross appeal must be filed within 10 days of the first notice of appeal. N.C. R. App. P. 3(c).

iii) A written notice of appeal must include (1) the party taking the appeal; (2) the judgment or order being appealed; and (3) the court to which appeal is taken. N.C. R. App. P. 3(d), 4(b).

iv) The notice of appeal must be filed with the clerk of superior court and served on all other parties to the appeal within 30 days of entry of the judgment. N.C. R. App. P. 3(a), 4(c). Proper methods of service are spelled out in Appellate Rule 26, and email is not one of them. See MNC Holdings, LLC v. Town of Matthews, 223 N.C. App. 442, 445, 735 S.E.2d 364, 366 (2012); see also Attachment F.

4 | P a g e

v) Appendix D to the Appellate Rules contains sample Notices of Appeal.

vi) The Appellate Rules Committee has also published a tip sheet for preparing a proper notice of appeal. See Attachment G.

c) Some types of cases have special Notice of Appeal rules. i) There are special rules regarding cases involving juveniles. See N.C.

R. App. P. 3(b), 3.1, 4(e), 9(a). ii) There are also special rules for appeals from administrative

agencies. N.C. R. App. P. 18-20. Attorneys should pay special attention to the Appellate Rules and case law interpreting the rules in those circumstances.

iii) There are also special filing concerns for the notice of appeal in Business Court appeals. See Attachment H.

d) Certain post-judgment motions and actions can toll a party’s deadline for filing and serving a notice of appeal, but beware of pitfalls. i) While notices of appeal generally must be served within 30 days of

entry of judgment, there is an exception if the judgment was not served within three days, as prescribed by Rule 58 of the Rules of Civil Procedure. N.C. R. App. P. 3(c)(2). However, the Court of Appeals has strictly limited this exception. See, e.g., Magazian v.

Creagh, 234 N.C. App. 511, 759 S.E.2d 130 (2014). To be safe, the better practice is to file the notice of appeal within 30 days after entry of the judgment. See Attachment I.

ii) Certain timely post-judgment motions filed pursuant to Rules 50(b), 52(b), or 59 of the Rules of Civil Procedure can toll a party’s 30-day deadline for filing a notice of appeal. N.C. R. App. P. 3(c)(3).

5 | P a g e

(1) However, the Court of Appeals looks past the label attached by counsel to a post-trial motion. An “improper” Rule 50, 52, or 59 motion will not toll a party’s deadline for filing a notice of appeal. See Attachment J.

(2) There is also a split of authority regarding whether a Rule 59 motion tolls the deadline for filing a notice of appeal for anything other than a judgment entered after a trial. See Attachment K.

(3) Notably, motions brought under Rule 60 of the Rules of Civil Procedure and motions to reconsider do not toll the deadline for filing a notice of appeal. See Attachment L.

e) Resources. i) Appendix A to the Appellate Rules provides a timetable of these and

other deadlines. ii) In addition, Smith Moore Leatherwood LLP has prepared a checklist

of these and the other deadlines described below. See Attachment M.

3) STOP THREE: TO WHICH APPELLATE COURT MUST MY APPEAL BE TAKEN? a) Most appeals from decisions of North Carolina’s trial courts go to the

North Carolina Court of Appeals. N.C. Gen. Stat. § 7A-27(b). b) Some appeals proceed directly to the Supreme Court.

i) Criminal defendants who have been sentenced to death appeal directly to the Supreme Court. N.C. R. App. P. 4(d). Final orders of the Utilities Commission in a general rate case are appealable directly to the Supreme Court. See N.C. Gen. Stat. § 7A-29. Many cases from the North Carolina Business Court and certain constitutional cases also go directly to the Supreme Court. Id. § 7A-

6 | P a g e

27. Business Court cases in particular contain many procedural traps of which practitioners should be aware. See Attachment N.

4) STOP FOUR: WHAT DOCUMENTS SHOULD BE SUBMITTED TO THE APPELLATE COURT? a) The appellate record (a.k.a. the Record on Appeal) contains the lower

court documents that the appellate courts review on appeal. i) The Record on Appeal can consist of the following record

components: Printed Record on Appeal, Rule 11(c) Supplement,3 Rule 9(d) Documentary Exhibits, Rule 9(d) Oversized or Tangible Exhibits, Deposition Transcripts, Transcript of the Proceedings Appealed From, and Rule 9(b)(5) Supplement to the Printed Record on Appeal.

ii) Not every case will contain every record component. iii) The Appellate Style Manual contains a handy chart summarizing

the Record on Appeal components. The Style Manual is an indispensable tool in preparing your record on appeal. See

Attachment O. b) Transcripts of the proceedings appealed from.

i) It is the appellant’s responsibility to ensure that a transcript is ordered and prepared.

ii) In certain circumstances, failure to order a transcript can result in the dismissal of an appeal. See Attachment P. (1) To ensure that you get a transcript, make sure a reliable

recording is being made in the trial tribunal—including when deposition transcript testimony is introduced at trial. See

Attachment Q. Before any important hearing in the trial 3 Appeals to the appellate courts from administrative agencies or the Office of Administrative Hearings have an analogue to the Rule 11(c) Supplement called the Rule 18(d)(3) Supplement.

7 | P a g e

tribunal, ensure that there is a live court reporter present or that an audio recording is being made.

iii) In civil cases, the appellant must sign a contract with a court reporter within 14 days after filing the notice of appeal. N.C. R. App. P. 7(a)(1). The contract must be filed with the clerk of superior court and served on the court reporter and all other parties. N.C. R. App. P. 7(a)(1); see also Style Manual’s Statement of Transcript Arrangement. See Attachment R. The appellee has the opportunity to designate additional portions of the proceedings to be transcribed within 14 days after service of the appellant’s contract. N.C. R. App. P. 7(a)(1). (1) Appeals in criminal cases generally follow the same rules. N.C.

R. App. P. 7(a)(2). However, when there is an order establishing the defendant’s indigency, the clerk orders the transcript. N.C. R. App. P. 7(a)(2).

iv) The transcriptionist has 60 days to prepare the transcript in civil cases and ordinary criminal cases, 65 days in indigent criminal cases, and 120 days in death penalty cases. N.C. R. App. P. 7(b)(1). Except in death penalty cases, the trial court has the authority to extend the time for the court reporter to produce the transcript by an additional 30 days. N.C. R. App. P. 7(b)(1). Any additional extensions transcript extensions must be obtained from the appellate courts. N.C. R. App. P. 7(b)(1). It is the appellant’s duty to obtain extensions of time for the court reporter.

v) The court reporter must deliver the completed transcript to the parties and certify to both the trial court and the appellate court that the transcript has been delivered. N.C. R. App. P. 7(b)(2).

8 | P a g e

When the record on appeal is filed, the appellant must notify the court reporter, who then will file the transcript with the appellate court. N.C. R. App. P. 7(b)(2).

vi) If a transcript is not ordered, parties can provide a narration of the proceedings. N.C. R. App. P. 9(c).

vii) Deposition transcripts are treated differently. Those should simply be submitted in triplicate to the appellate court along with the other record filings.

viii) Appendix B to the Appellate Rules and the Style Manual provide additional guidance on transcripts.

c) The printed Record on Appeal. i) The printed record, which contains the key documents for the

appeal, are submitted by the appellant to the appellate court and reproduced in bound volumes by the Appellate Court’s Printing Office.

ii) In civil cases, the printed record must contain: (a) an index, (b) a statement identifying the trial court judge and appealing

party and evidence of personal jurisdiction, (c) the pleadings, (d) a transcript statement (if a transcript is submitted) or

narrative summary, (e) a statement regarding any Rule 9(d) Documentary Exhibits

and/or Rule 11(c) Supplement submitted to the appellate courts,

(f) the jury instructions or requested instruction (if applicable),

9 | P a g e

(g) the verdict form or trial court’s findings of fact and conclusions of law (if applicable),

(h) the judgment or order being appealed, (i) the notice of appeal (and all documents relating to the

perfecting of the appeal), (j) other necessary papers filed in the trial court, (k) proposed issues on appeal, and (l) any order regarding a pro hac vice motion.

N.C. R. App. P. 9(a)(1). The record must also include a statement containing identifying information for all counsel of record. N.C. R. App. P. 9(b)(4). Examples of most of these documents can be found in the Appellate Style Manual.

iii) Records in administrative appeals generally contain the same documents. N.C. R. App. P. 9(a)(2), 18(c).

iv) Records in criminal cases contain the analogous documents. N.C. R. App. P. 9(a)(3).

d) Rule 9(d) Documentary Exhibits are reproduced by counsel for the appellate court. i) Like the printed record on appeal, the Rule 9(d) Documentary

Exhibits must contain an index and separate appellate pagination. ii) Unlike the printed record on appeal, the Rule 9(d) Documentary

Exhibits are reproduced by the appellant, who submits three copies of the exhibits to the appellate courts. (1) Trial court and hearing exhibits are typically submitted to the

appellate courts in the Rule 9(d) Documentary Exhibits. (2) This route can be a cost-saving measure.

10 | P a g e

(3) This process also provides counsel the ability to include color documents and oversized exhibits.

e) Rule 11(c), 18(d)(3), and 9(b)(5) supplements are reproduced by counsel for the appellate court. i) Documents appropriate for any of these supplements are submitted

to the appellate court in a separate volume, with an index, in triplicate.

5) STOP FIVE: HOW DO THE PARTIES REACH AGREEMENT ON THE RECORD ON APPEAL? a) The parties are responsible for settling the Record on Appeal.

i) Judicial settlement of the Record on Appeal is both limited and disfavored. See N.C. R. App. P. 11.

b) The appellant serves a Proposed Record on Appeal. i) Unless the parties agree to the record beforehand, an appellant

must serve a proposed record on appeal within 35 days after the transcript is delivered (or 35 days after the notice of appeal is filed if there is no transcript). N.C. R. App. P. 11(a).

c) An appellee’s objections and amendments or approval of the Proposed Record. i) An appellee can either approve the proposed record or serve

objections and amendments within 30 days. N.C. R. App. P. 11. d) Record Settlement.

i) After objections and amendments are served, the parties have 10 days to reach agreement on the appellate record. N.C. R. App. P. 11.

ii) If the parties disagree on whether a trial tribunal document should go into the appellate record, that document is usually placed in a separately indexed and paginated Rule 11(c) Supplement.

11 | P a g e

(1) The rules on judicial settlement were changed several years ago. Now, a party can include in the Rule 11(c) Supplement any document that was “filed, served, submitted for consideration, admitted, or made the subject of an offer of proof.” N.C. R. App. P. 9(d), 11(c).

iii) The appellant must file the settled record on appeal with the appellate court within 15 days after the record has been settled. N.C. R. App. P. 12(a). At that time, the appellant must also pay the docketing fee. N.C. R. App. P. 12(b).

e) There are specific formatting requirements for the Record on Appeal. i) Each record on appeal component should contain an index/cover

page and separate appellate pagination. N.C. R. App. P. 9(b)(4). ii) Pleadings in the printed record on appeal generally should be in

chronological order and should contain the date of filing or entry. N.C. R. App. P. 9(b).

f) Resources. i) Appendix C to the Appellate Rules provides additional guidance for

preparing the record on appeal. ii) For these and other issues, we recommend consulting the Style

Manual prepared by the Appellate Rules Committee. 6) STOP SIX: WHAT GOES IN THE BRIEFS?

a) Parties must file their briefs in accordance with the deadlines. i) An appellant must file and serve a brief within 30 days after the

appellate court has mailed the printed record. N.C. R. App. P. 13(a)(1). Notably, the appellant does not get 3 extra days after the mailing of the printed record. N.C. R. App. P. 13(a)(1). The appellee must file and serve a brief within 30 days after service of the

12 | P a g e

appellant’s brief. N.C. R. App. P. 13(a)(1). Parties are given extra time in death penalty cases. N.C. R. App. P. 13(a)(2).

b) Parties file their briefs with the appellate court. i) Briefs (and other documents) can be filed electronically or by mail.

N.C. R. App. P. 26(a). ii) If filed electronically, the filing attorney must certify that he or she

is authorized to file on behalf of any other attorneys. See N.C. R. App. P. 33(b). See Attachment S.

iii) When filing its opening brief, an appellant should also file the completed Appeal Information Statement as provided by the Court, see N.C. R. App. P. 41, and should be sure to also timely file the Consent to Mediation form.

iv) Briefs must also be served on all other parties. N.C. R. App. P. 26(b).

c) The briefs must be formatted correctly. i) Pages of the record can be cited as “(R p __).” Pages of a Rule 11

supplement can be cited as “(R S p __).” Pages of the transcript can be cited as “(T p __).” N.C. R. App. P. 9(b)(4).

ii) Appellate Rule 26 as well as Appendix B and Appendix E to the Appellate Rules provide additional details and guidance for the format and style of briefs and other papers filed with the appellate courts.

iii) Again, we recommend consulting the Style Manual prepared by the Appellate Rules Committee for formatting guidance.

d) The appellant files the first brief. i) An appellant’s brief must contain a cover page, a statement of the

issues on appeal, a statement of the procedural history of the case, a

13 | P a g e

statement of the grounds for appellate review, a statement of the facts, an argument, a conclusion, identification of counsel, and a certificate of service. N.C. R. App. P. 28(b).

ii) An appellant may be required to file an appendix to the brief. See

N.C. R. App. 28(d). iii) A party’s opening brief in the Court of Appeals is limited to 35 pages

(if using non-proportionally spaced type like Courier New) or 8,750 words (if using a proportionally spaced type like Times New Roman, 14-point or larger). N.C. R. App. P. 28(j). There are no length limitations in the Supreme Court.

iv) The Court of Appeals has prepared a Legal Standards Database to assist with providing standards of review and general statements of law.

e) An appellee can file a response brief. i) An appellee’s brief has different requirements than an appellant’s

brief. N.C. R. App. P. 28(c). ii) An appellee can also supplement the record on appeal if necessary.

N.C. R. App. P. 9(b)(5)(a). f) An appellant may file a reply brief.

i) The rule regarding reply briefs was changed so that now an appellant can file a reply brief as of right within 14 days after the appellee’s brief is served. N.C. R. App. P. 28(h). Any reply brief must “be limited to a concise rebuttal of arguments set out in the appellee’s brief and shall not reiterate arguments set forth in the appellant’s principal brief.” Id.

ii) Reply briefs in the Court of Appeals are limited to 15 pages or 3,750 words. N.C. R. App. P. 28(j).

14 | P a g e

7) STOP SEVEN: WILL THERE BE ORAL ARGUMENT? a) Most cases in the Court of Appeals are not argued orally.

i) The parties will receive a notice from the Court of Appeals identifying the date that the case will be “heard.” That notice will either set the case for oral argument or direct the parties not to appear for oral argument. See N.C. R. App. P. 30(f).

b) Oral argument is almost always ordered in cases before the Supreme Court of North Carolina. i) The Supreme Court will send a notice giving you the date and time

to appear for oral argument and will ask you to return a statement to the clerk stating who will appear for oral argument.

c) Only attorneys who have personally signed the brief can participate in oral argument. N.C. R. App. P. 33(a). An electronic signature on an electronically filed brief is sufficient.

d) Resources. i) The Appellate Rules Committee has prepared helpful guides for the

oral argument process at both the Supreme Court and the Court of Appeals as well as a chart comparing the two. See Attachment T, Attachment U, and Attachment V.

e) Secured Leave. i) Attorneys who are unable to participate in oral argument during a

certain time should designate a secure leave period at least 90 days before the beginning of the period. See N.C. R. App. P. 33.1.

8) STOP EIGHT: WHAT HAPPENS NEXT? a) The court will issue its decision.

i) Generally, the Court of Appeals attempts to issue its decision within 90 days.

15 | P a g e

b) Mandate. i) 20 days after an opinion is filed, the appellate court’s mandate will

issue automatically. N.C. R. App. P. 32(b). ii) A calculation of the costs, and the party obligated to pay them, will

be included with the mandate. N.C. R. App. P. 35(b). Appendix F to the Appellate Rules contains more information about fees and costs associated with the appellate process.

c) Parties can petition the appellate courts for rehearing. N.C. R. App. P. 31. i) There is no procedure for en banc rehearing by the entire Court of

Appeals. d) From a Court of Appeals’ decision, parties can either appeal or petition

for discretionary review to the Supreme Court of North Carolina. N.C. R. App. P. 14, 15. i) However, no petition for discretionary review can be made in post-

conviction proceedings under Chapter 15A, Article 89 or in valuation of exempt property under Chapter 1C.

ii) A party must appeal/petition to the Supreme Court within 15 days after the mandate issues from the Court of Appeals. Therefore, including the mandate, a party has 35 days after the Court of Appeals opinion is issued to appeal/petition to the Supreme Court.

e) There is no additional record settlement process for sending the record on appeal from the Court of Appeals to the Supreme Court. i) Instead, the record from the Court of Appeals is automatically sent

to the Supreme Court. f) However, parties do file new briefs with the Supreme Court. N.C. R.

App. P. 14(d) & 15(g).

ATTACHMENT A

April 25, 2016

You Can’t Have One Without The Other: Court of AppealsDismisses Notice of Appeal That Designates Interlocutory OrderBut Not Final Judgment

ncapb.com/2016/04/25/you-cant-have-one-without-the-other-court-of-appeals-dismisses-notice-of-appeal-that-designates-interlocutory-order-but-not-final-judgment/

The state appellate rules are clear: your notice of appeal must “designate the judgment or order from which appealis taken.” N.C. R. App. P. 3(d). So, if you want to appeal an interlocutory order, you identify it in the notice of appeal,and you have complied with the rule, right?

Apparently not. In the unpublished opinion of Majerske v. Majerske, the Court of Appeals held that an appellantseeking to challenge an interlocutory order after entry of a final judgment must also designate the final judgment inthe notice of appeal to confer appellate jurisdiction.

The holding further complicates an already complicated question in North Carolina appellate practice: what, ifanything, must the notice of appeal say in order to confer appellate jurisdiction over a given order?

A party’s ability to challenge an interlocutory order after a final judgment is entered is based on N.C. Gen. Stat. §1-278, which states:

Upon an appeal from a judgment, the court may review any intermediate order involving the meritsand necessarily affecting the judgment.

Id. Our state appellate courts’ first reference to § 1-278 occurred in 1950 when the Supreme Court mentioned inpassing that a non-appealable interlocutory order involving the merits and necessarily affecting the judgment couldbe reviewable on appeal from a final judgment pursuant to § 1-278. Veazey v. City of Durham , 57 S.E.2d 377, 383,231 N.C. 357, 364 (1950); see also City of Raleigh v. Edwards, 234 N.C. 528, 531, 67 S.E.2d 669, 672 (1951)(dismissing nonappealable interlocutory order, but noting that the appellant could obtain review of the interlocutoryorder under § 1-278 in any future appeal after entry of a final judgment).

For almost four decades, § 1-278 eluded any substantive attention from our appellate courts. Then, in 1987, theCourt of Appeals dismissed a party’s challenge to an earlier-entered interlocutory personal jurisdiction order,appealed after entry of final judgment. Gualtieri v. Burleson, 84 N.C. App. 650, 654-55, 353 S.E.2d 652, 655-56(1987). In Gualtieri, the appellant’s notice of appeal designated the final judgment, but did not include a specificreference to the earlier interlocutory order on personal jurisdiction. The Gualtieri court held that while “§ 1–278 doesprovide that interlocutory orders affecting a judgment appealed from can be reviewed with the judgment, that statuteapplies only to interlocutory orders that are not [immediately] appealable.” Id. (citing Veazy). Because the personaljurisdiction order in Gualtieri had been subject to immediately appellate review under § 1–277(b), the Gualtieri courtheld that § 1-278 did not apply and dismissed the appeal based on the appellant’s failure to specifically designate theinterlocutory order in the notice of appeal.

Surprisingly, neither the text of § 1-278 nor Veazy say that § 1-278 applies only to interlocutory orders that are notimmediately appealable. Substantial right jurisprudence is chaotic enough without having to undertake that analysisto determine whether a notice of appeal is effective under § 1-278 to cover earlier orders.

Regardless, any criticism of the Gualtieri analysis is likely now water under North Carolina’s appellate bridge. In1999, the North Carolina Supreme Court in Floyd stated in dicta (citing Gualtieri) that § 1-278 applies only to

1/4

interlocutory orders which are not immediately appealable. Charles Vernon Floyd, Jr. & Sons, Inc. v. Cape FearFarm Credit, ACA, 350 N.C. 47, 51, 510 S.E.2d 156, 158-59 (1999), abrogated on other grounds by Dep ’t of Transp.v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999).

In any event, the Supreme Court in Floyd expressly reaffirmed that an appellant is still “entitled to appellate review”pursuant to § 1-278 of any non-appealable interlocutory order “not specifically mentioned in the notice of appeal” aslong as the notice of appeal designates the trial court’s final judgment.

After Floyd, the Court of Appeals provided sage advice on crafting notices of appeal challenging interlocutory orders.

Although nonappealable interlocutory orders can sometimes be reviewed upon appeal of a finaljudgment “the better practice without doubt would be to designate each order appealed from inan appellant’s notice of appeal.”

Wells v. Wells, 132 N.C. App. 401, 405, 512 S.E.2d 468, 471 (1999) (emphasis added). In 1999, the Court ofAppeals adopted a three-part test for utilizing § 1-278 to exercise review of interlocutory orders not specificallyreferenced in a party’s notice of appeal from a final judgment, which has been used by the Court of Appeals eversince:

1. the appellant must have timely objected to the order;

2. the order must be interlocutory and not immediately appealable; and

3. the order must have involved the merits and necessarily affected the judgment.

Gaunt v. Pittaway, 135 N.C. App. 442, 445, 520 S.E.2d 603, 606 (1999). See also, e.g., Brooks v. Wal-Mart Stores,Inc., 139 N.C. App. 637, 641, 535 S.E.2d 55, 59 (2000); Yorke v. Novant Health, Inc., 192 N.C. App. 340, 666 S.E.2d127 (2008).

In short, this brief history lesson explains how interlocutory orders that are not specifically designated in the notice ofappeal can still be reviewed by the appellate courts under § 1-278. Based on this history, you might think that aninterlocutory order that is specifically designated in the notice of appeal would be reviewable by the appellate courtson appeal from a final judgment under Appellate Rule 3.

Under Majerske, that is no longer enough.

Majerske is an unpublished family law opinion, but its holding has broad application to all interlocutory appeals fromfinal judgments. In Majerske the trial court in July 2013 entered an alimony modification order which the appellantdid not immediately appeal. In December 2014, the trial court entered two custody and child support orders“resolving all pending matters in an action”—i.e., the final judgment.

Within 30 days of entry of the December 2014 orders, Plaintiff filed a notice of appeal specifically designating andseeking appellate review of the July 2013 alimony order. Plaintiff’s notice of appeal, however, did not specificallyreference the December 2014 orders that constituted the “final judgment” in the trial court.

On appeal, the Plaintiff statement of appellate jurisdiction “acknowledged that the July 2013 alimony modificationorder was interlocutory when it was entered,” but contended that entry of the December 2014 orders “made the July2013 alimony modification order a final judgment.” The Court of Appeals called this an incorrect statement of law,explaining that the final judgment is the “one which disposes of the cause as to all parties, leaving nothing to bejudicial determined between them in the trial court.” (emphasis in the original).

2/4

I appreciate the Court of Appeals’ attempt to clarify the difference between judgments and orders. Generallyspeaking, there should be one final judgment in every case that arises when the trial court enters an order resolvingall the claims as to all parties. While earlier interlocutory orders become final (and hence appealable) once a finaljudgment is entered, those interlocutory orders are not the “final judgment.” Rather, they become part of the finaljudgment package that the appellate court is entitled to review now that the entire case is finished in the trial court.

However, more than a fair share of appellate opinions reference interlocutory orders as “judgments.” Indeed, thismeshing of the terms “orders” and “judgments” is found in the text of the Appellate Rules. See, e.g., Appellate Rule3(c)(1) & (2) (stating that a party may file a notice of appeal within “30 days after entry of judgment,” but providing notime period for appealing from entry of an appealable order, leading the appellate courts to assume “judgment”means “judgment or order” here).

My concern regarding Majerske begins with the statement that “when appealing from a final judgment, however, anappellant must reference that judgment in its notice of appeal because an appellate court ordinarily ‘obtainsjurisdiction only over the rulings specifically designated in the notice of appeal as the ones from which the appeal isbeing taken.” According to the Court of Appeals, because N.C. Gen. Stat. § 7A-27 allows appeals from “any finaljudgment,” the failure to specifically reference the December 2014 orders/final judgment in Plaintiff’s notice of appealdeprives the appellate courts of jurisdiction under § 7A-27 even though the interlocutory order which the appellantwas challenging on appeal is specifically referenced in the notice of appeal.

Majerske relies heavily on the language of § 7A-27 in determining what information the notice of appeal wasrequired to contain. However, in 1989 the General Assembly repealed § 1-279, adopted 1-279.1, and amendedseveral appellate statutes to provide that the Rules of Appellate Procedure—rather than the appellate statutes—governed the time, manner, and effect of noticing an appeal. Under Appellate Rule 3(d) a notice of appeal issufficient if it designates the judgment or order from which appeal is taken. While I agree that the better practice isto designate both the final judgment and the interlocutory order in your notice of appeal, it is not clear to me thatspecifically naming the final judgment in your notice of appeal is a jurisdictional requirement under Appellate Rule 3.

Moreover, our appellate courts have applied a “functional equivalent” analysis to Appellate Rule 3(d)’s requirements.For example, in Smith v. Indep. Life Ins. Co., 43 N.C. App. 269, 273-74, 258 S.E.2d 864, 867 (1979), the Court ofAppeals noted that Appellate Rule 3(d)’s Drafting Committee commentary indicated that only the most misleading oferrors should led to dismissal of an appeal. In refusing to dismiss an under-inclusive notice of appeal, the Smithcourt favorably quoted federal authority stating that the “rule is now well settled that a mistake in designating thejudgment, or in designating the part appealed from if only a part is designated, should not result in loss of the appealas long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is notmislead by the mistake.”

It is unlikely that the appellee was misled by the notice of appeal in Majerske. The appellee did not even file anappellate brief. In addition, Majerske moves our appellate courts another step away from the liberal construction ofnotices of appeal afforded by most other appellate systems.

Majerske, although unpublished, is a warning shot for appellate practitioners. It announces an important newrequirement for notices of appeal that practitioners should follow.

If after entry of a final judgment you want to challenge on appeal an earlier enteredinterlocutory order, you must designate the final judgment in your notice of appeal. The bestpractice is also to designate the interlocutory order in your notice of appeal.

What are your thoughts about Majerske? Ideas on how you would comply with Majerske where the document thatconstituted the final judgment was not an order of the court—for example, a party’s voluntary dismissal of the

3/4

remaining claims and parties? Let me know in the comments below.

–Beth Scherer

h/t to Gary Beaver for bringing this opinion to my attention.

Copyright 2016 North Carolina Appellate Practice Blog

4/4

ATTACHMENT B

June 13, 2013

Attorneys’ Fees are Ancillary, and That’s Finalncapb.com/2013/06/13/attorneys-fees-are-ancillary-and-thats-final/

Does a pending motion for attorneys’ fees make the otherwise final substantive order interlocutory, or can it beimmediately appealed?

I wrote a few months ago about the Court of Appeals’ attempt to add some clarity to this question in Hausle v.Hausle. Today, the Supreme Court declared an even simpler rule in Duncan v. Duncan. I’ll let Justice Newby’swords speak for themselves:

Today we clarify the effect of an unresolved request for attorney’s fees on an appeal from an orderthat otherwise fully determines the action. Once the trial court enters an order that decides allsubstantive claims, the right to appeal commences. Failure to appeal from that order forfeits the right.Because attorney’s fees and costs are collateral to a final judgment on the merits, an unresolvedrequest for attorney’s fees and costs does not render interlocutory an appeal from the trial court’sorder.

This “bright-line rule” goes a long way to cut through the confusion on this issue. Note what is missing from theanalysis: you do NOT have to analyze whether the attorneys’ fees issue is dependent on or ancillary to the finalmerits order.

Also, you do NOT need to seek a Rule 54(b) certification because the merits order is final by itself . This is really theheart of the opinion. Once you accept that the merits order is final, then it follows that a pending attorneys feesmotion does not bar an appeal and a “Rule 54(b) certification [of the merits order] is superfluous. ”

The opinion leaves some open questions for the bar, of course:

1. In what circumstances can the trial court hear the motion for attorney’s fees after a notice of appeal has beentaken from the merits order? Analyzing this question probably begins with N.C. Gen. Stat. 1-294:

When an appeal is perfected as provided by this Article it stays all further proceedings in the courtbelow upon the judgment appealed from, or upon the matter embraced therein; but the court belowmay proceed upon any other matter included in the action and not affected by the judgment appealedfrom.

In other words, the Hausle court’s inquiry into the relatedness of the merits order and the attorney’s fee motion maybe alive and well at least in this context.

2. In what circumstances is an order requiring the payment of attorney’s fees final if there are other issues relating toattorney’s fees still outstanding? In other words, when is an order requiring the payment of attorney’s fees a final“judgment on the merits”?

Finally, a practice tip. The drawback to the ruling today is that some cases will indeed be appealed twice: once onthe merits, and then again later on attorney’s fees. How can you get around this piecemeal appeal process? If youget the call from the Judge’s chambers to draft an order on the merits, consider asking the trial court not to enter any

1/2

written order until the issue of attorney’s fees can be resolved at the same time.

–Matt Leerberg

Copyright 2016 North Carolina Appellate Practice Blog

2/2

ATTACHMENT C

February 1, 2016

Ketchup, Catsup, Catch-Up: A Hodgepodge Of ImportantAppellate Decisions We Were Behind In Sharing

ncapb.com/2016/02/01/ketchup-catsup-catch-up-a-hodgepodge-of-important-appellate-decisions-we-were-behind-in-sharing/

Holidays, snowstorms, vacations, workloads—mixed in with the winter blahs—have resulted in us getting a littlebehind on our blogging duties. The appellate courts, however, have not suffered from the same maladies, issuingseveral important appellate-practice-and-procedure decisions of late. This special “Catch-Up” post hopefully gets usback on track for the New Year.

Rule 54(b) Certification and Peacock Farms. The question presented in Peacock Farms was whether a Rule 54certification statement (i.e., a statement by the trial court judge that an interlocutory order is “final” as to one of moreclaims or parties, and that there is no just reason for delaying an appeal) must be contained in the same order theparties are seeking to appeal? Or, is it acceptable for a trial judge to issue a separate piece of paper that certifies anearlier order for appeal?

We previously blogged about Peacock Farms when the Court of Appeals handed down a split decision. At the time,we noted several practical concerns with the text of N.C. R. Civ. P. 54(b) and how Rule 54 certification works inpractice. The issue was so intriguing that I attended the Peacock oral argument at the Supreme Court. Surprisingly, both parties argued that the trial court’s Rule 54(b) certification—which was contained in an orderseparate from the order being appeal—was sufficient to confer Rule 54(b) appellate jurisdiction.

The Supreme Court disagreed. On 18 December 2015, the North Carolina Supreme Court issued a per curiumopinion in BB&T v. Peacock Farms adopting the Court of Appeals’ majority decision without further elaboration.

Therefore, the rule in North Carolina is this: no Rule 54(b) appeal lies from an order that does notitself contain a Rule 54(b) certification.

The Peacock Farms decision does not address whether a trial court can amend an earlier order to add a Rule 54(b)certification. There is language in the majority opinion suggesting that such an amended order would satisfy Rule54(b), but it might be argued otherwise. An appeal taken from an amended order would also raise certain timingquestions related to the notice of appeal. See our prior blog post.

Rule 54(b) Tip: For the time being, the safest route is to ensure that the order, when it is enteredoriginally, contains the necessary Rule 54(b) certification language. Therefore, start thinking aboutwhether you might want to seek Rule 54(b) certification long before the written order is entered.

Service of Judgments by the Trial Court, Actual Notice, and the Correct Procedure to Appeal a Trial CourtOrder that Dismiss an Appeal: In E. Brooks Wilkins Family Medicine v. WakeMed, the trial court entered orders on25 April 2014 dismissing plaintiff’s claims as a discovery sanction. The orders contained a certificate of servicesigned by the trial court coordinator (“TCC”) stating that she had served the order on all the parties. The notice ofappeal was served thirty-three days after the filing and the TCC’s service of the orders. Under its Appellate Rule 25authority, the trial court dismissed Plaintiff’s appeal of the discovery sanctions orders, finding that Plaintiff had failed

1/3

to meet the 30-day deadline for filing and serving its notice of appeal under Appellate Rule 3(c)(1).

On appeal, the Plaintiff argued that under N.C. R. Civ. P. 58—which is referenced in Appellate Rule 3(c)—service ofthe judgment must be made by a party to start the notice of appeal clock. According to the Plaintiff, because theTCC was not a “party” to the action, the TCC’s service of the discovery sanctions orders was ineffective to triggerthe 30-day notice of appeal deadline. The Wilkins Court rejected this argument holding that “the trial court has theinherent authority to serve its own orders.”

Plaintiff also contended that the TCC’s service was ineffective because her certificate of service “did not specify thedate on which the documents were served and did not specify the means of service” as required by N.C. R. Civ. P. 5.The Court of Appeals refused to disturb the trial court’s finding that certificate of service’s date line (i.e., “This, the25th of April 2014.”) established that the TCC served the order on April 25.

As to Plaintiff’s contention that the certificate of service did not properly demonstrate the “means of service” where itstated that service was effected “by mailing and/or hand delivering a copy,” the Court declined to reach thisargument. Instead, the Court found, pursuant to cases like Manone and Magazian, that Plaintiff had “actual notice ofa final order within 3 days of its entry.” Even if the TCC’s service had been defective, “actual notice” triggersAppellate Rule 3(c)(1)’s deadline for filing the notice of appeal 30 days after the entry of the judgment. [Side Note:Practically, I do not believe it mattered whether the TCC mailed or hand delivered the order. Appellate Rule 3(c)expressly exempts Notice’s of Appeal deadlines from the additional time for filing after service by mail, and adocument is considered served when it is placed in the mail.).

In Wilkins, Plaintiff’s counsel submitted an affidavit stating that the order had been filed on Friday, April 25, and thatcounsel had not received the discovery sanctions order by Sunday, April 27—two days after the discovery sanctionsorder has been entered. The Court of Appeals pointed out that under Magazian, “the three day period [for receivingactual notice of the order] excludes weekends and court holidays.” Because Plaintiff’s counsel did not present anyevidence that they had not received the order between Monday April 28 and Wednesday, April 30, the Court ofAppeals held that the requirements of Appellate Rule 3(c)(1) were satisfied—and therefore, the notice of appeal wasdue 30 days from the entry of the order. Accordingly, the Court of Appeals dismissed Plaintiff’s challenge to thediscovery sanctions order as untimely. [Remember when I told you to ignore Appellate Rule 3(c)(2)? Ditto.].

The Court of Appeals also recognized a split in authority regarding the proper method for seeking appellate review ofa trial court’s order dismissing an appeal: either a notice of appeal or a petition for writ of certiorari. Following thewell-established rule that when decisions of the Court of Appeals conflict, the earlier of those decisions is thecontrolling precedent, the Wilkins Court held that no appeal of right lies from order dismissing an appeal. Instead,the party can only seek appellate review by filing a petition for writ of certiorari.

**Full disclosure: Smith Moore Leatherwood represented certain Appellees in the above appeal.

No Appeal Filed. Petition for Writ of Certiorari Denied. Case Closed? Not So Fast!

Finally, Carpenter v. Carpenter involved a plaintiff’s appeal of, among other things, an equitable distribution order. On appeal, Plaintiff contended that the trial court erred in not classifying an investment account as entirely maritalproperty, and by entering an unequal distribution in defendant’s favor. On the other hand, the defendant-appelleecontended that the trial court’s equitable distribution order incorrectly classified and distributed property that thedefendant managed for the parties’ minor child. The defendant-appellee, however, had not filed a cross-appeal fromthe final judgment, which was necessary to argue these issues on appeal. Moreover, before filing his appellee’sbrief, the defendant-appellee had filed a petition for writ of certiorari asking the court to issue a writ and review theseissues, despite his failure to file a cross-appeal. An earlier panel of the Court of Appeals, however, denied thepetition.

2/3

Rather than giving up, appellee’s counsel adopted the adage, “when you reach the end of your rope, tie a knot andhang on.” In his appellee’s brief, defendant’s counsel raised, for the first time, a challenge to the trial court’sjurisdiction to enter the equitable distribution order. According to the defendant, the minor child—who was the legalowner of an account affected by the equitable distribution order—was a necessary party to the litigation. Becausethe minor child had not been joined in the litigation, defense counsel maintained that the portion of the trial courtorder that distributed funds from the minor child’s account was void for lack of jurisdiction.

While plaintiff objected that the earlier panel’s denial of defendant’s certiorari petition resolved the issue, the Court ofAppeals disagreed. Defendant’s certiorari petition had only sought review of whether the trial court had erred inclassifying the minor’s account as marital property—not whether the trial court had jurisdiction to enter the orderwithout joining the minor child as a necessary party. Thus, the Court of Appeals concluded that the prior panel hadnot addressed the jurisdictional issue when it denied Defendant’s certiorari petition, and the subsequent panel wasfree to review it.

Because a dispute regarding a trial court’s subject matter jurisdiction is an issue that may be raised at any time—even for the first time on appeal—the appellate court was required to determine the issue. The Court of Appealsultimately held that because the minor child was required to be joined as a necessary party, the trial court did nothave jurisdiction to enter the portion of the equitable distribution order affected the minor child’s account. Withoutjurisdiction, the portion of the trial court’s equitable distribution order classifying and distributing property from theminor child’s account was void. Accordingly, that portion of the equitable distribution order was vacated andremanded—no appeal necessary!

The Carpenter reasoning reminds me of the bootstrapping / pendent appellate jurisdiction arguments thatoccasionally pop up in interlocutory appeals. See Church v. Carter, 94 N.C. App. 286, 288, 380 S.E.2d 167, 168(1989) (Although subject matter jurisdiction is not usually subject to interlocutory review, “since defendant also haschallenged the trial court’s power to exercise personal jurisdiction over him, we must, at this time, decide the issuehe has raised concerning subject matter jurisdiction.); N.C. Gen. Stat. § 1-75.4 (subject matter jurisdictionprerequisite to court’s exercising personal jurisdiction). While this was not an interlocutory appeal, it is a reminderthat subject matter jurisdiction is one of the few civil issues that the appellate courts are willing to review—despitenotice of appeal and waiver problems.

Hopefully we are up-to-date on some of the more interesting appellate issues that developed over these past fewweeks. Know of any others? Let us know in the comments below.

–Beth Scherer

Copyright 2016 North Carolina Appellate Practice Blog

3/3

ATTACHMENT D

November 13, 2015

How Do You Appeal a Business Court Designation, Anyway?ncapb.com/2015/11/13/how-do-you-appeal-a-business-court-designation-anyway/

A few months ago, Hanesbrands Inc. sued a former executive to recover the value of certain stock units and optionsbecause of her alleged defection to a competitor. Hanesbrands filed a “Notice of Designation” so that the case couldproceed in the North Carolina Business Court because it involves securities law and the law governingcorporations. The Chief Justice of the Supreme Court agreed and designated the case as “mandatory complexbusiness,” proceeding before Chief Judge Jim Gale. The executive filed an opposition to the Business Courtdesignation, arguing, among other things, that the case involved Maryland substantive law. Judge Gale overruledthe opposition by written Order, holding that the designation was not improper just because the securities issuesarise under Maryland—and not North Carolina—law.

The issue is an interesting one. The statute allows Business Court designation for “[d]isputes involving securities,including disputes arising under Chapter 78A of the General Statutes.” N.C. Gen. Stat. § 7A-45.4. What happenswhen the substantive law governing those disputes is the law of another state, or federal law?

Yesterday, the former executive appealed the “Order on Opposition” that kept the case in Business Court by noticingappeal to the Supreme Court. Now what happens?

Good question, and one to which there is no easy answer. Before the passage of the Business Court ModernizationAct, an appeal from a designation decision was taken directly “to the Chief Justice of the Supreme Court.” Now, theappeal is taken “in accordance with G.S. 7A-27(a).” Section 7A-27(a), in turn, simply allows for an appeal “directlyto the Supreme Court” from final judgments and certain interlocutory orders entered in Business Court cases. Adesignation decision is not a “final judgment.” In fact, to be immediately appealable at all, it would have to be anorder that “[a]ffects a substantial right.” N.C. Gen. Stat. § 7A-27(a)(3)(a). Presumably the General Assemblywanted the issue of Business Court designation to be decided before the entire litigation is conducted, but thestatute leaves it to the Supreme Court to decide whether the designation order “affects a substantial right.”

The lack of clarity does not end there. By statute, the procedures governing any appeal—including an appeal from adesignation decision—are provided by the Rules of Appellate Procedure. N.C. Gen. Stat. § 1-279.1. But thoseprocedures are detailed, and the process is slow. Did the General Assembly really intend for appeals fromdesignation decisions to take a year, and involve record compilation, full briefing, and oral arguments? If not, whatprocedures are the parties supposed to follow? Meanwhile, may the Business Court proceed with the case, or is thematter stayed by N.C. Gen. Stat. § 1-294?

I am hopeful that the Supreme Court will provide some answers to these questions. Stay tuned.

–Matt Leerberg

Copyright 2016 North Carolina Appellate Practice Blog

1/1

ATTACHMENT E

November 3, 2011

Can You Track Me Now? Written Notice of Appeal Required inSatellite-Based Monitoring Appeals

ncapb.com/2011/11/03/can-you-track-me-now-written-notice-of-appeal-required-in-satellite-based-monitoring-appeals/

When doing criminal defense work, practitioners routinely give oral notice of appeal and rarely use written notices ofappeal. This practice is sufficient for most cases but presents a dangerous trap for the unwary when a civil issuearises in a criminal appeal. In North Carolina, criminal defendants who are convicted of certain offenses may beordered to enroll in satellite-based monitoring (“SBM”). If you are not sure what that is, check out the movieDisturbia.

In May 2010, the North Carolina Court of Appeals released an opinion in State v. Brooks which held that SBMhearings are civil in nature rather than criminal. Instead of being a punishment, SBM is part of a “civil regulatoryscheme.” As a result, an oral notice of appeal from a SBM order is insufficient to confer jurisdiction on the Court ofAppeals to hear a challenge to the SBM order. In other words, the provision in Appellate Rule 4(a)(1) allowing oralnotices of appeal in criminal cases does not apply to SBM hearings. Rather, those hearings fall within Appellate Rule3’s requirement for a written notice of appeal. Attorneys representing criminal defendants should be aware of thisdistinction and file a written notice of appeal whenever SBM rulings are involved.

The Court of Appeals has been temporarily granting reprieve to attorneys who missed the news that written noticesof appeal are required. In State v. Stokes, released earlier this week, the defendant was convicted of various sexoffenses and ordered to enroll in SBM for the rest of his natural life. The defendant failed to file a written notice ofappeal but sought review of the issue by petition for writ of certiorari. The Court of Appeals agreed to reach the issueby certiorari because the Stokes SBM order had been entered within three months of the Brooks decision. TheCourt of Appeals reached a similar result in both State v. Mann and State v. Carter.

Unfortunately, that window of reprieve will probably close quickly. Brooks was released more than a year ago, andthe Court of Appeals is less likely to grant certiorari based on oral notices in the future.

Copyright 2016 North Carolina Appellate Practice Blog

1/1

ATTACHMENT F

November 20, 2012

Service in the Digital Age: Use of Email During Appealncapb.com/2012/11/20/service-in-the-digital-age-use-of-email-during-appeal/

I still remember the first email I sent, way back in 1995 (to my now-wife). Here we are, 17 years later, and email isno longer a novelty. It is the primary way most lawyers do business, structure their workdays, communicate withclients, and even communicate with a co-worker 10 feet away.

But the law and the rules are slow to adapt. The North Carolina Rules of Appellate Procedure do not generally allowe-mail service of filings. True–there are exceptions, such as the Rules’ embrace of e-mail service of electronicfilings. N.C. R. App. P. 26(c). But e-mail service remains the exception, not the rule.

In MNC Holdings, LLC v. The Town of Matthews , the Court of Appeals reaffirmed that e-mail is not an acceptablemethod of service of the Notice of Appeal. (Full disclosure: my firm represented MNC Holdings in this appeal.) InMNC, the Town timely filed a Notice of Appeal from a decision of a trial court on MNC’s petition for writ of certiorariregarding a variance petition. The same day, the Town served the Notice of Appeal by e-mail. The Town had servedcertain trial-level documents by e-mail, and claimed it was just following the parties’ earlier course of conduct. Indeed, MNC did not dispute that it had actual notice of the appeal.

On MNC’s motion to dismiss the appeal for improper service of the Notice of Appeal, the Court of Appeals held thatthe Town had not properly served the Notice of Appeal by email. Rule 3(e) requires service of the Notice of Appeal ina method “as provided in Rule 26.” Rule 26, in turn, provides for service in accordance with Rule 4 of the Rules ofCivil Procedure (i.e., how you serve a Complaint), or by hand delivery or U.S. mail.

In the end, the Town’s appeal was saved by a different truism about law practice in 2012–that most appellate rulesviolations are now non-jurisdictional. The Court reiterated that proper filing of the Notice of Appeal is necessary toconfer subject matter jurisdiction on the appellate courts, but proper service of the Notice of Appeal is not. Instead,service of the Notice of Appeal is necessary for the court to exercisepersonal jurisdiction over a party. In this case,both parties adequately participated in the appeal, and the Court let the Town’s error slide.

Don’t get too comfortable though — the Court warned:

[P]ractitioners need be cautioned that non-compliance with the Rules in future cases may result indismissal and that an appellate discussion of their failure to follow the rules should be unnecessary . .. .

I’ll be standing by my e-mail if you’d like to discuss.

–Matt Leerberg

Copyright 2016 North Carolina Appellate Practice Blog

1/1

ATTACHMENT G

Notice Of Appeal Tip Sheet For Civil Appeals To North Carolina’s

Appellate Courts From Superior And District Court Orders and Judgments

Helpful Tips Providing Guidance On The Following Questions:

Where Must My Notice Of Appeal Be Filed? When Must My Notice Of Appeal Be Filed? When Can A Deadline For Filing A Notice Of Appeal Be Tolled? What Information Should The Notice Of Appeal Contain? Are There Any Special Requirements For Appeals From The North

Carolina Business Court? Are There Any Special Requirements For Juvenile Appeals? Are There Any Other Notice Of Appeal Considerations?

P a g e 2

Where Must My Notice Of Appeal Be Filed? 1. The Notice of Appeal in civil cases and special proceedings should be

filed with the Clerk of the Superior Court, regardless of whether you are appealing a judgment or order from Superior Court or District Court. It should not be filed in the Court of Appeals. N.C. R. App. P. 3(a).

2. Most appeals are made to the North Carolina Court of Appeals.

3. However, certain judgments and orders must be appealed directly to the North Carolina Supreme Court. See N.C. Gen. Stat. § 7A-27. These appeals include offenses for which the death penalty is imposed and both final and interlocutory orders that hold a state statute unconstitutional on its face. Section 7A-27 also indicates that most appeals from the North Carolina Business Court should be filed with the North Carolina Supreme Court. (See separate section below on special requirements for Business Court appeals.)

4. Note that when an appeal of right is taken from the North Carolina Court of Appeals to the North Carolina Supreme Court, the notice of appeal must be filed with both the Clerk of the Court of Appeals and the Clerk of the Supreme Court. N.C. R. App. P. 14(a). Note also that this Tip Sheet does not address petitions for discretionary review, which are governed by Appellate Rule 15.

When Must My Notice Of Appeal Be Filed? 5. Unless otherwise provided by statute (see, e.g., N.C. Gen. Stat. § 7B-

2602), the Notice of Appeal must be filed within 30 days after the entry of a final judgment. N.C. R. App. P. 3(c), (e). Subject to limited exceptions (see Tip 11, below), notice of appeal from an immediately appealable interlocutory order may either be filed within 30 days after the entry of that order or after the entry of a final judgment in the case.

6. The 30-day period for filing the Notice of Appeal is jurisdictional and cannot be extended by the trial court. Henlajon, Inc. v. Branch Highways, Inc., 149 N.C. App. 329, 331-32, 560 S.E.2d 598, 600-01 (2002).

7. The Notice of Appeal must also be served within the 30-day deadline period. Service should be made by hand delivery or mail. Email is not a proper method for serving the Notice of Appeal. MNC Holdings, LLC v. Town of Matthews, 223 N.C. App. 442, 445-47, 735 S.E.2d 364, 366-67 (2012).

8. If timely notice of appeal is made by one party, any other party can serve notice of cross-appeal within 10 days of that first notice of appeal. N.C. R. App. P. 3. Note that Appellate Rule 18 does not contain a specific 10-day

P a g e 3

cross-appeal provision. Therefore, the 10-day cross-appeal provision may not apply to administrative appeals governed by Appellate Rule 18. Strezinksi v. City of Goldsboro, 187 N.C. App. 703, 710, 654 S.E.2d 263, 268 (2007) (holding that the “timing of appealing a decision of the Full Commission . . . is governed by section 97-86, not Appellate Rule 3,” and that because section 97-86 does not contain a provision giving an appellee additional time to file a cross-appeal after another party appeals, the notice of appeal is due 30 days after receipt of the order being challenged).

9. A judgment is entered, and the Notice of Appeal clock begins to run, when a judgment is reduced to writing, signed by the judge, and filed with the Clerk of Superior Court. N.C. R. Civ. P. 58.

10. Once a trial court enters an order that decides all substantive claims in the litigation, the right to appeal the judgment begins to run immediately. A pending motion for attorneys’ fees and costs is ancillary or collateral to the final judgment on the substantive merits and does not alter the timeline for appeal of the substantive claims. Duncan v. Duncan, 366 N.C. 544, 546, 742 S.E.2d 799, 801 (2013).

11. Certain interlocutory orders may be immediately appealed within 30 days of entry of the interlocutory order, but the decision to forego an immediate appeal from an interlocutory order does not generally result in waiver of the right to appeal that interlocutory order at the conclusion of the case. State Dep’t of Transp. v. Rowe, 351 N.C. 172, 176, 521 S.E.2d 707, 709-10 (1999). However, there are limited exceptions to this rule. See, e.g., State Dep’t of Transp. v. Stagecoach Vill., 360 N.C. 46, 48, 619 S.E.2d 495, 496 (2005) (holding that orders “concerning title or area taken” of a common area subject to condemnation are immediately appealable and must be immediately appealed). For more information concerning examples of interlocutory orders that may be immediately appealed, see the Appellate Rules Committee’s “Guide to Appealability of Interlocutory Orders,” available at http://www.ncbar.org/media/464950/ncba-appellate-rules-committee-guide-to-appealability-2015.pdf.

When Can A Deadline For Filing A Notice Of Appeal Be Tolled?

12. The 30-day period for filing a notice of appeal is tolled by the filing of

timely motions under North Carolina Rules of Civil Procedure 50(b), 52(b), or 59. N.C. R. App. P. 3(c).

13. A motion for relief from judgment or order under Civil Rule 60 does not toll the time for appeal. Morehead v. Wall, 224 N.C. App. 588, 593-94, 736 S.E.2d 798, 801-02 (2012). Pending motions for attorneys’ fees or costs

P a g e 4

also do not toll the time for appeal. Duncan v. Duncan, 366 N.C. 544, 645-46, 742 S.E.2d 799, 800-01 (2013).

14. Appellate Rule 3 provides that when “any party” timely files a motion under Rule 50(b), 52(b), or 59, the deadline for filing a notice of appeal is tolled “as to all parties until entry of an order disposing of the motion and then runs as to each party from the date of entry of the order.” Despite this language, at least one Court of Appeals decision has concluded that the time for filing a notice of appeal is tolled only as to the party that filed the post-trial motion. Estate of Hurst ex rel. Cherry v. Moorehead I, LLC, 748 S.E.2d 568, 572 n.2 (N.C. Ct. App. 2013). Therefore, it may be prudent to file a timely post-trial motion or a notice of appeal instead of relying on the tolling effect of another party’s motion.

15. Normally, a notice of appeal must be filed within 30 days after entry of the judgment. (See Tip 9, above, discussing the entry of a judgment). However, Appellate Rule 3(c) provides a tolling provision whereby if a party is not served with the judgment within 3 days of its entry, then the appellant’s deadline for filing a notice of appeal runs from the date that the judgment is served in accordance with N.C. R. Civ. P. 58.

However, relying on Appellate Rule 3(c)’s service tolling provision should be avoided if at all possible. Several Court of Appeals opinions hold that the tolling provision of Rule 3(c) does not apply if the party received “actual notice” that the judgment has been entered.

Actual notice may include email notification. Magazian v. Creagh, 759 S.E.2d 130, 131 (N.C. Ct. App. 2014).

Actual notice may occur whenever anyone in the attorney’s firm (e.g., another attorney, paralegal, secretary, receptionist, or other support personnel) becomes aware that the judgment has been entered. See Manone v. Coffee, 217 N.C. App. 619, 623, 720 S.E.2d 781, 784 (2011).

Finally, when determining whether a party received “actual notice” of the judgment, the court excludes weekends and court holidays when determining whether actual notice occurred within three days of entry of the judgment. Magazian v. Creagh, 759 S.E.2d 130, 131 (N.C. Ct. App. 2014). In other words, if actual notice occurs within 3 business days of entry of the judgment, the appellant cannot rely on the service tolling provision of Appellate Rule 3.

P a g e 5

What Information Should The Notice Of Appeal Contain?

16. Generally, the Notice of Appeal must:

Contain the name of the party taking the appeal;

Designate the judgment or order being appealed from;

Designate the court to which appeal is being taken;

Be signed by the counsel of record for the appealing party; and

Be served under Appellate Rule 26.

17. Civil notices of appeal must always be in writing. N.C. R. App. P. 3.

18. Generally, notice of appeal in a criminal matter may be given orally at trial. N.C. R. App. P. 4(a)(1). However, if you are representing a criminal defendant in a satellite-based monitoring hearing or in a sex offender registry removal hearing, those hearings are considered civil hearings, and consequently, an oral notice of appeal is insufficient and written notice of appeal is required. State v. Brooks, 204 N.C. App. 193, 194-95, 693 S.E.2d 204, 206 (2010); State v. Stokes, 216 N.C. App. 529, 537, 718 S.E.2d 174, 180 (2011); State v. Mann, 214 N.C. App. 155, 157, 715 S.E.2d 213, 215 (2011). Note that criminal appeals, as well as appeals from the district court to the superior court for a trial de novo, are often governed by different statutes and rules than those addressed by this Notice of Appeal Tip Sheet. See, e.g., N.C. Gen. Stat. § 15A-1431.

19. While a notice of appeal that specifies that the final judgment is being appealed can sometimes be construed to encompass earlier interlocutory orders, the best practice is to designate in the Notice of Appeal every order of the trial court that the party intends to challenge on appeal.

Are There Any Special Requirements For Appeals From The North Carolina Business Court?

20. In October 2014, the General Assembly passed the Business Court

Modernization Act, which, among other things, provides that certain Business Court Cases are appealable directly to the North Carolina Supreme Court. N.C. Gen. Stat. § 7A-27; see also N.C. Session Law 2014-102. Section 7A-27 was further amended in October 2015. See N.C. Session Law 2015-264. Amended section 7A-27 contains potential ambiguities that the appellate courts have not yet addressed. Therefore,

P a g e 6

practitioners should carefully review the language of the statute, case law, and commentary before filing a notice of appeal from the Business Court. Practitioners should also carefully consider which version of section 7A-27 governs their appeals from the Business Court.

21. Only judgments and orders in cases that have been designated as mandatory complex business cases on or after October 1, 2014 are directly appealable to the North Carolina Supreme Court. N.C. Session Law 2014-102, § 1. Therefore, always check the designation order to determine the appellate court to which your notice of appeal should be directed.

22. If you are litigating in the North Carolina Business Court, you must timely file the Notice of Appeal electronically in the Business Court and file a paper copy with the Clerk of the Superior Court in the county where the case was originally filed. Both notices of appeal should be filed on or before the notice of appeal deadline. Ehrenhaus v. Baker, COA 14-1083 (N.C. Ct. App. Sept. 15, 2015); see also Ehrenhaus v. Baker, 2014 NCBC 30, ¶¶ 8-13 (N.C. Super. Ct. July 16, 2014) (analyzing why notice of appeal must be filed in two places).

23. While it is never advisable to wait until the last minute to file a notice of appeal, special care should be taken when filing a notice of appeal in the North Carolina Business Court because of the possibility of technical difficulties with the e-filing system. Under the Business Court’s local rules governing technical difficulties (Business Court Rules 6.13 & 6.14), you should try to file your notice of appeal before 4:00 p.m. on the day the Notice of Appeal is due, at the very latest. See Carter v. Clements Walker PLLC, 2014 NCBC 12 (N.C. Super. Ct. April 30, 2014).

Are There Any Special Requirements For Appeals of Termination of Parental Rights and Juvenile

Abuse/Neglect/Dependency Cases?

24. Appeals of trial court orders involving termination of parental rights and issues of juvenile dependency, abuse, and neglect are governed by special rules found in N.C. Gen. Stat. § 7B-1001 and N.C. R. App. P. 3.1.

25. Only the matters listed in N.C. Gen. Stat. § 7B-1001(a) can be appealed to the North Carolina Court of Appeals in abuse, neglect, and dependency cases.

26. In all juvenile appeals filed under N.C. Gen. Stat. § 7B-1001(a), notice of appeal must be signed by both the counsel of record for the appealing party and the appealing party. N.C. Gen. Stat. § 7B-1001(c); N.C. R. App. P. 3.1(a).

P a g e 7

27. An indigent person is entitled to court-appointed appellate counsel in

actions and proceedings listed in N.C. Gen. Stat. § 7A-451. Appointment of appellate counsel may be considered by the trial court even if the appealing party was represented by retained counsel in the underlying proceeding. N.C. Gen. Stat. § 7B-450(c). Examples of notices of appeal and other resources for appeals in juvenile matters are available on the Indigent Defense Services’ Office of Parent Representation website, available at http://www.ncids.org/ParentRepresentation/index.html.

Are There Any Other Notice Of Appeal Considerations?

28. A filed-stamped notice of appeal and the certificate of service of the Notice

of Appeal must be included in the printed record on appeal.

29. A trial court order dismissing an appeal for failure to timely perfect the appeal cannot be appealed by filing a notice of appeal of that order. Instead, the proper way to seek appellate review of such orders is by petitioning for a writ of certiorari. State v. Evans, 46 N.C. App. 327, 327, 264 S.E.2d 766, 767 (1980).

Disclaimer

North Carolina Bar Association publications are intended to provide current and accurate information and are designed to assist in maintaining professional competence. Publications are distributed with the understanding that the North Carolina Bar Association does not render any legal, accounting or other professional services. The contributing authors to this publication have exerted their best professional skills to assure the accuracy of its contents. All original sources of authority presented by this publication should be independently researched in dealing with any client’s or your own specific legal matters. The committee appreciates the advice and comments of those who use the tip sheet. Please send your suggestions via email to govaffairs@ncbar.org, or by conventional mail to the Appellate Rules Committee, NC Bar Association, P.O. Box 3688, Cary NC 27519.

Prepared and Distributed by the Appellate Rules Committee of the

North Carolina Bar Association © 2016 North Carolina Bar Association

All rights reserved. Latest Revision Date: January 8, 2016

ATTACHMENT H

September 16, 2015

Ehrenhaus Is Here To Stayncapb.com/2015/09/16/ehrenhaus-is-here-to-stay/

Yesterday the North Carolina Court of Appeals issued what I am going to be so bold as to call the most highlyanticipated opinion in 2015 for appellate practitioners. For those new to the Ehrenhaus discussion, take a look at ourprior posts here and here and here. The central question is whether the provision in Appellate Rule 3 requiring thata notice of appeal be filed “with the clerk of superior court” can, in a North Carolina Business Court case, be satisfiedby e-filing the notice of appeal through the Business Court website, or can only be satisfied by timely filing of thenotice of appeal with the clerk of superior court in the case’s “home county.”

In yesterday’s opinion in Ehrenhaus v. Baker (14-1083), the Court of Appeals dismissed Plaintiff’s appeal (of theNorth Carolina Business Court order dismissing his attempted cross appeal as untimely) and denied Plaintiff’spetition for writ of certiorari. In reaching its decision, the Court concluded that “Plaintiff did not properly give notice ofappeal” and the circumstances did not justify granting such an “extraordinary remedy” as certiorari to review theunderlying order on the merits.

Where does that leave us? With binding authority interpreting notice of appeal filing requirements for North CarolinaBusiness Court appeals.

When appealing from a Business Court order or judgment, e-filing your notice of appeal will not satisfy the filingrequirements of Appellate Rule 3. You must also file a paper copy of your notice of appeal with the court in which thecase originated, and you must do so by your notice of appeal deadline.

– Corinne Jones

Copyright 2016 North Carolina Appellate Practice Blog

1/1

ATTACHMENT I

July 3, 2014

Notice of Appeal Perils: Further Proof that You Should IgnoreAppellate Rule 3(c)(2)

ncapb.com/2014/07/03/notice-of-appeal-perils-further-proof-that-you-should-ignore-appellate-rule-3c2/

Ignore that Rule of Appellate Procedure! How often do you hear me say that? I would wager not often, but theCourt of Appeals’ recent opinion in Magazian v. Creagh precipitates a friendly warning to take a figurative red penand strike out a portion of Appellate Rule 3.

Magazian involved a plaintiff’s attempt to “renew” a foreign judgment issued in 2001. The trial court grantedsummary judgment to the defendant, and the plaintiff appealed.

The Court of Appeals identified two problems with the Magazian plaintiff’s appeal. First, the 2001 foreign judgmentwas not part of the record on appeal. As we have previously noted [here, here, & here], an appellant that fails toinclude a necessary document in the record on appeal risks having its appeal dismissed. Occasionally, appellatejudges will instruct counsel to supplement the appellate record, but they have no duty to do so and, more often thannot, will simply dismiss the appeal for the record deficiency.

Second, the Magazian court held that the notice of appeal was not timely filed. The trial court’s judgment wasentered (i.e., filed) on Friday, September 20, 2013. N.C. R. Civ. P. 58 requires the judgment be served within threedays of entry of the judgment with a certificate of service. Here, there was no evidence that the defendant or thecourt ever served the judgment on the plaintiff as required by the Appellate Rules or the Rules of Civil Procedure. Instead, the plaintiff first received notice that a judgment had been entered on Wednesday, September 25, 2013,when an unidentified person emailed the plaintiff a copy of the judgment. Thereafter, the plaintiff filed a notice ofappeal on October 25, 2013—30 days after the plaintiff was emailed a copy of the judgment.

As you may know, the Rules of Appellate Procedure do not allow service of a judgment by email. Email service isallowed only when a document is filed electronically via the appellate courts’ e-filing website. N.C.R. App. P. 26(c). As a judgment is filed in the trial court, the email service provision of Appellate Rule 26(c) does not apply. Moreover,the Magazian court acknowledged that “[e]mail is not a valid method of service” under the Rules of Civil Procedure,either. Therefore, proper service of the judgment on the plaintiff was never made.

So, when is a notice of appeal due if the judgment to be appealed is never properly served? You might think such anotice is essentially “timely no matter what.” But such a rule would allow for an indefinite delay, even if the partieshave “actual notice” that the judgment was entered. The Court of Appeals has repeatedly rejected such a result asbeing contrary to the purpose of N.C. R. Civ. P. 58, and instead only requires “fair notice” that a judgment has beenentered to start the notice of appeal clock. See, e.g., Huebner v. Triangle Research Collaborative , 193 N.C. App.420, 667 S.E.2d 309 (2008) (an appellant with actual notice cannot wait three years to file a notice of appeal).

The Court of Appeals took this logic further in last year’s Manone v. Coffee decision, holding that “when a partyreceives actual notice of the entry and content of a judgment . . . the service requirements of Rule 3(c) . . . are notapplicable.” The result in Manone was particularly pernicious—even though someone in the appellant’s firm pickedthe judgment up from the courthouse within three days of entry of judgment, appellant’s counsel did not actuallyreceive the judgment until four days after it was entered. Appellant’s counsel filed notice of appeal more than 30days after the judgment was entered, apparently believing that it could rely on the alternative 30-day clock containedin Appellate Rule 3(c)(2). N.C. R. App. P. 3(c)(2) (notice of appeal is due within 30 days “after service upon the partyof a copy of the judgment if service was not made within that three day period” prescribed by N.C. R. Civ. P. 58).

We blogged about Manone at the time of its release, warning practitioners that Manone could be a ticking bomb for

1/3

appellate practitioners who sought to rely on Appellate Rule 3(c)(2). See also Kennedy v. Ramirez (N.C. Ct. App.2012) (finding appeal untimely because “once plaintiff received actual notice of the 1 June 2012 order, “the portionof Rule 3(c) requiring service pursuant to Rule 58 was not applicable to her.”) This was particularly true because“actual notice,” as defined by Manone, is not “actual notice” to the attorney who has entered an appearance in thecase. Instead, “actual notice” occurs whenever anyone in the attorney’s firm (i.e., another attorney, paralegal,secretary, receptionist, or other support personnel) becomes aware that the judgment has been entered. It makesno difference if the attorney assigned to the case does not have actual notice.

Magazian applied Manone’s “actual notice” precedent to hold that the September 20, 2013 judgment wasfunctionally served by email on Wednesday, September 25, 2013, which meant that the appeal clock started ticking.

Several blog readers have already noted there are only 30 days in September, and that the appellant did not receivethe email until five days after the judgment was entered. So why wasn’t the Magazian appellant’s notice of appeal—filed October 25, 2013 —timely under N.C. R. App. 3(c)(2)?

Well, the Magazian court extended Manone by holding that the three-day “service” period of Appellate Rule 3(c)(2)applies when an attorney only receives “actual notice” of the judgment, and when counting the three days, the Courtexcludes weekends and court holidays. Because two of the five days between entry of the judgment and actualnotice of the judgment fell over the weekend, the Magazian court determined that actual notice was received withinthree business days of the entry of the judgment, and Rule 3(c)(2) did not apply.

The Court’s decision in Magazian, like Manone, adds an additional layer of complication to Civil Procedure Rule 58and Appellate Rule 3 that the drafters likely never intended. A look at the history of the Rules suggests as much.

Over twenty years ago, a prior iteration of N.C. R. Civ. P. 58 , in conjunction with Appellate Rule 3, required thatnotice of appeal be filed within 30 days of the trial court’s rendering or announcement of a judgment. Because whena judgment is “rendered” is not always clear-cut, the appealing parties and the courts often found it difficult todetermine exactly when a notice of appeal was required to be filed. In 1993, Rule 58 was amended to provide that anotice of appeal deadline does not begin to run 1) until 30 days after the trial court’s filing of a signed, written order,and 2) only if the judgment is served with proof of service in accordance with Rule 5 within three days of the filing ofthe judgment. Rule 58 further states that when its service requirements are not met, the deadline for post-judgmentmotions under Rule 50, 52, and 59 are tolled “for the duration of any period of noncompliance with this servicerequirement.” Because these amendments were intended to simplify the process for calculating the notice of appealdeadline, it seems reasonable to require a non-appealing party to comply with Rule 58’s service requirements if itwants the opposing party’s 30-day window for appealing to begin to run.

By reading into Appellate Rule 3 a broad “actual notice” component that excuses a party’s noncompliance with Rule58, Manone reintroduced some amount of uncertainty into the process of calculating the notice of appeal deadline. Magazian appears to take Manone one step further.

I am concerned with the effect these decisions may have on even earnest rule-followers going forward. Indeed, whydid the Magazian court analyze whether the admittedly ineffective service was within Rule 58’s three-days becauseof the “weekend and holidays” provision of Rule 6? In other words, why inquire whether service of the judgmentwas timely under Rule 58 when the court had already decided that “service” was not proper “service” under Rule 58and Appellate Rule 3 at all?

Moreover, I remain deeply troubled by the Court of Appeals’ earlier decision in Manone. Jettisoning the formalservice requirements of Appellate Rule 3 and Rule 58 in favor of an “actual notice” requirement invites manipulation. An appellee might think, “Why should I properly serve the judgment if by doing nothing I can introduce uncertaintyinto my opponent’s notice of appeal deadline?” Alternatively, it is not uncommon for a prevailing party to send a“courtesy copy” of the judgment by email before sending the service copy, perhaps the next day. But what if thecourtesy copy is sent three days after the judgment is entered, and the service copy is sent the next day—four days

2/3

after the judgment was entered? While the certificate of service would state that service was not made until fourdays after entry of the judgment, under Manone, the parties and the courts are not bound by the appellee’scertification. Rather, the Court—and the appellant—must determine whether actual notice occurred before the datelisted on the certificate of service.

Finally, even if the Court of Appeals was correct in holding that Appellate Rule 3 and Rule 58’s service requirementsare effectively optional, why not at a minimum give the appealing party a full 30 days from its actual notice of entryof the judgment to file its notice of appeal when proper service is never made?

Unfortunately, Manone and Magazian have taken different paths. Therefore, I repeat the warning this blog issuedafter Manone.

It is safer not to rely on Appellate Rule 3’s extra time when service is not completed within threedays. Instead, file your notice of appeal within thirty days of the filed-stamp date on the judgment.

If you need to strike out Appellate Rule 3(c)(2) to remember this warning, I will let you borrow my red pen.

I am interested to know your thoughts about Manone and Magazian. Do you have an alternative solution to thisproblem? Let me know in the comments below!

–Beth Scherer

(P.S.–Thanks to everyone who emailed and called me about this decision.)

Copyright 2016 North Carolina Appellate Practice Blog

3/3

ATTACHMENT J

© 2015 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.

III. Other Timing Traps With Notices Of Appeal

“Barebones” And Improper Post-Judgment Motions Will Not Toll The Thirty-Day Period For Filing A Notice Of Appeal

– Motions that do not contain any real arguments or which merely cite the rule.

• “Pursuant to Rule 59, grant us a new trial.”

– Motions that contain argument, but are not based on any of the grounds enumerated in Rule 59.

ATTACHMENT K

August 30, 2016

Resisting the Urge To Give The Trial Court One Last Chance:Dangers of Using N.C. R. Civ. P. 59 To Revisit Final JudgmentsEntered Without A Trial

ncapb.com/2016/08/30/resisting-the-urge-to-give-the-trial-court-one-last-chance-dangers-of-using-n-c-r-civ-p-59-to-revisit-final-judgments-entered-without-a-trial/

Most attorneys have had a least one unfavorable final judgment entered before trial. The attorney may feel that thetrial court completely misunderstood her argument. Perhaps the trial court entered a summary judgment order thatmissed a key appellate case. Or perhaps the trial court issued a Rule 12(b)(6) dismissal that appeared inconsistentwith an earlier ruling. The natural inclination is to devise a motion that will give the trial court the opportunity to fix itsmistakes without having to take an appeal. Indeed, a well-used rulebook almost instinctively opens to N.C. R. Civ. P.59, which allows a trial court to alter or amend a judgment if a Rule 59 motion is filed within 10 days after entry ofthat judgment.

According to a recent Court of Appeals’ opinion, attorneys should resist the urge to file a Rule 59 motion for anythingother than a final judgment entered after a trial–at least if you need the Rule 59 motion to toll your deadline for filinga notice of appeal. Indeed, improperly relying on a Rule 59 motion to toll a party’s deadline for filing a notice ofappeal could have fatal consequences!

In TD Bank v. Eagles Crest, the defendants contended that their filing of a Rule 59 motion, which sought to modify aprior summary judgment order, tolled their 30-day deadline for appealing the summary judgment order. The Court ofAppeals disagreed, stating that “Rule 59 is not a valid means to challenge pretrial orders.” While TD Bank isunpublished, it relies on Bodie Island Beach Club Ass ’n, Inc. v. Wray, 215 N.C. App. 283, 294-95, 716 S.E.2d 67, 77(2011), a published Court of Appeals opinion holding that Rule 59(a)(8) and (9) speak only to post-trial motions and,therefore, cannot be used to amend a summary judgment order. Because the TD Bank defendants sought to rely onan “improper” Rule 59 motion to toll their notice of appeal deadline, the Court of Appeals dismissed their appeal asuntimely.

The proposition that a Rule 59 motion can only be used in a post-trial situation arises from the text of Rule 59. Forexample, Rule 59(a)(1) allows a trial court to grant a new trial based on “any irregularity by which any party wasprevented from having a fair trial.” Subsections 59(a)(2) through (a)(9) contain similar phrases relating to post-trialproceedings. N.C. R. Civ. P. 59(a) (using phrases like “misconduct of the jury,” “manifest disregard of the juryinstructions by the jury,” conduct that happened “at trial,” “the verdict,” and “grounds for a new trial.”). In turn, Rule59(e), which permits amendments to judgments, arguably incorporates by reference the trial-related criteriacontained under Rule 59(a). (“A motion to alter or amend the judgment under section (a) of this rule shall be servednot later than 10 days after entry of judgment.” (emphasis added)).

The Federal Rules of Civil Procedure contain a similar rule allowing a trial court to alter or amend a final judgment. However, N.C. R. Civ. P. 59 is different from Fed. R. Civ. P. 59 in two key respects. First, Fed. R. Civ. P. 59(e) doesnot incorporate by reference the new trial grounds listed under Fed. R. Civ. P. 59(a). See Fed. R. Civ. P. 59(e) (“Amotion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”). Second,the post-judgment motions that can toll a party’s deadline for filing a notice of appeal in federal court are muchbroader than in state court. For example, both a Rule 60 motion and a motion for attorneys’ fees can toll a party’sdeadline for filing a notice of appeal in federal court, but not state court.

Perhaps the federal court system places a greater emphasis on giving a trial court “one last chance” to correctmistakes in its final judgment. On the other hand, our state court system may value finality of final judgments overgiving parties the opportunity to “pester” a trial court to change its prior order “one last time.” Indeed, North Carolina

1/2

cases speak disapprovingly of parties who seek to use improper, post-judgment motions as a substitute for anappeal.

Moreover, in the federal courts, the same district court judge (with the help of judicial law clerks) is assigned to aparticular case from start to finish. With the exception of Business Court cases, our state trial court system generallyrelies on rotating judges to decide cases. Liberal post-judgment rules that encouraged litigants to take an additionalshot at every final judgment could place an additional burden on our state court system.

At this point, the Supreme Court has not yet decided this issue, although it had an opportunity to do so in 2014. InRutherford Plantation, LLC v. The Challenge Golf Grp. of Carolinas, LLC, 225 N.C. App. 79, 86, 737 S.E.2d 409, 414(2013), Judge Stroud, relying on Bodie, issued a dissenting opinion contending that “a motion under any of thesubsections of Rule 59 … is proper only after a trial.” Id. at 88, 737 S.E.2d at 415. Interestingly, the RutherfordCourt of Appeals’ majority opinion completely ignored the Rule 59 tolling issue—and Bodie. On appeal from JudgeStroud’s dissent, an equally divided Supreme Court split 3-3, leaving the decision of the Court of Appeals to stand,but without precedential value. Rutherford Plantation, LLC v. The Challenge Golf Grp. of the Carolinas , LLC, 367N.C. 197, 753 S.E.2d 152, 153 (2014). (Interesting side note: Judge Elmore wrote the Court of Appeals’ majorityopinion in Rutherford, but joined Judge Stroud in dismissing the appeal in TD Bank).

Rutherford’s non-voting 7th justice was Justice Cheri Beasley. Then Judge Beasley concurred withRutherford’s majority opinion right before she left the Court of Appeals to join the Supreme Court in 2012. Therefore, she did not participate in the case when it reached the Supreme Court. However, after Rutherford wasdecided, Chief Justice Sarah Parker retired, with Justice Sam Ervin taking the vacant seat on the Supreme Court. (Final side note: Justice Ervin also has a history with Rutherford). Therefore, how this issue might be resolved bythe current Supreme Court justices is unknown.

What are your thoughts regarding the scope and intent of Rule 59(e)? Are you aware of other cases relevant to thisissue? Let us know in the comments below.

–Beth Scherer

Copyright 2016 North Carolina Appellate Practice Blog

2/2

ATTACHMENT L

© 2015 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.

III. Other Timing Traps With Notices Of Appeal

Types of Post-Judgment Motions That Do Not Toll The Notice of Appeal Deadline

– In state court, Rule 60 motions

• Compare Fed. R. Civ. P. 60 motions filed no later than 28 days after entry of judgment. Generally will toll the deadline for filing a notice of appeal. Fed. R. App. P. 4(a)(4)(A)(vi)

– Attorney Fees Motions: Federal (Sometimes) v. State (No—at least not yet!)

ATTACHMENT M

NORTH CAROLINA RULES OF APPELLATE PROCEDURE CHECKLIST:

Civil Appeals from Trial Courts to North Carolina Court of Appeals1

CHECK BOXES AS COMPLETED:2 Notice of Appeal

File with trial court within 30 days after entry of order or judgment from which appeal is taken (unless otherwise tolled).3 (App. R. 3(c), (d))

Serve all other parties within same period. (App. R. 3(c), (e))

Other parties may file notices of appeal with trial court within 10 days of service of the initial notice of appeal. (App. R. 3(c))

Determine whether to seek stay of the trial court’s order or judgment. (App. R. 8)

Transcript Arrangement

Appellant must make arrangement with the court reporter or transcriptionist(s) for the preparation of any transcripts within 14 days of filing notice of appeal. (App. R. 7(a)(1))

Appellant must file written documentation of transcript arrangement with the clerk of the trial court and serve all parties and the transcriptionist(s). (App. R. 7(a)(1) (listing required content))

1This document is intended as a general guideline only and pertains solely to civil appeals from trial courts. Rather than rely on this document, you should always directly consult and follow the North Carolina Rules of Appellate Procedure when handling appeals. Unless otherwise noted, references to rules are taken from the 2013 North Carolina Rules of Appellate Procedure. To receive updates or to submit comments or suggestions, subscribe to the NCAPB.com blog or contact beth.scherer@smithmoorelaw.com

Also consider consulting the Appellate Rules Style Manual, a free guide produced by the NCBA’s Appellate Rules Committee to assist appellate practitioners appearing before North Carolina appellate courts with practical examples, tips, and best practices. A link to the style manual is available on the resources page of the NCAPB.com blog. 2 Note that some steps may not apply to every appeal. Consult the Appellate Rules for specific information. 3 Appellant does not get the benefit of the 3-day mail rule. (App. R. 3(c))

Checklist: Civil Appeals from Trial Courts to North Carolina Court of Appeals ©2013 Smith Moore Leatherwood LLP. Last Updated July 2013

-Page 1-

Appellee may arrange for preparation of additional transcript parts within 14 days after service of written transcript contract by Appellant. Appellee must file with the clerk of trial court and serve on all other parties of record written documentation of the additional parts of the proceedings to be transcribed, including the name and address of the transcriptionist(s) designated to prepare the transcript. (App. R. 7(a)(1))

The transcriptionist(s) must prepare and deliver transcript within 60 days after service of written transcript contract. (App. R. 7(b)(1)) [Trial court transcripts are filed electronically by the transcriptionist(s) after the record on appeal is docketed, and notice is also sent to the trial court. Deposition transcripts are usually filed by Appellant in paper format when the record on appeal is filed.]

Appellant must obtain any necessary extension of time for transcript preparation. The trial court may extend once the time to prepare the transcript for an additional 30 days, but any subsequent motion must be made to the Court of Appeals. (App. R. 7(b)(1))

Court Reporter certifies delivery/completion of transcript(s). (App. R. 7(b)(2))

Proposed Record and Settling the Record on Appeal4

Parties may settle a proposed record on appeal by agreement within 35 days after certification of delivery of the transcript or 35 days after filing of the notice of appeal if no transcript was ordered. (App. R. 11(a))

If not settled by agreement, Appellant shall serve all other parties a proposed record on appeal within 35 days after certification of delivery of the transcript or 35 days after filing the notice of appeal if no transcript was ordered. (App. R. 11(b))

Within 30 days after service of the proposed record on appeal, Appellee may serve on all parties a notice of approval or objections, amendments, or a proposed alternative record on appeal. (App. R. 11(b)(c))

Settlement of Record

If Appellee serves no objections or amendments to the record on appeal, the record is deemed settled as of the date of any notice of approval or as of the date when the time for filing objections expires. (App. R. 11(b))

If objections, amendments, or a proposed alternative record is served, judicial settlement of the record by the trial court may be requested in writing by any party within 10 days after expiration of the last day within which Appellee could serve objections, amendments, etc. (App. R. 11(c))

• Note: Judicial settlement is limited to narrow circumstances. (See App. R. 11(c))

4 If there are multiple Appellants, the parties should come to agreement regarding the procedure for preparing and serving the proposed record or, if necessary, request an order from the trial court. (App. R. 11(d))

Checklist: Civil Appeals from Trial Courts to North Carolina Court of Appeals ©2013 Smith Moore Leatherwood LLP. Last Updated July 2013

-Page 2-

• Each party must promptly provide the trial court judge a reference copy of the record items, amendments, or objections served by that party. (App. R. 11(c))

• A judicial settlement hearing must be held not later than 15 days after service of the request for hearing upon the judge. (App. R. 11(c))

• The judge must file an order settling the record on appeal not more than 20 days after service of the request for hearing upon the judge. (App. R. 11(c))

If objections, amendments, or a proposed alternative record is served but judicial settlement is not sought, the record is deemed settled on date of expiration of 10-day period for requesting judicial settlement. (App. R. 11(c))

Filing the Record on Appeal

File record on appeal with the Court of Appeals within 15 days after settlement. (App. R. 12)

Appellant files one copy of the printed record on appeal, three copies of any separately indexed and paginated Rule 9(d) Documentary Exhibits, three copies of any paper transcripts, and three copies of any supplement to the record on appeal. (App. R. 12)

When the record is filed, Appellant must notify any transcriptionist(s) filing electronic transcript(s). (App. R. 7(b)(2))

Appellant pays Court of Appeals clerk the $10.00 docketing fee, and the clerk will docket the appeal. (App. R. 12(b); Appendix F)

Pay $250.00 appeal bond to the Court of Appeals. (App. R. 6, 17; Appendix F)

When the docket entry notice is received, Appellant notifies any transcriptionist(s) filing electronic transcripts of the appeal’s docketing, gives the transcriptionist(s) the Court of Appeal’s case number, and requests the transcriptionist(s) electronically file any trial court transcript(s). (App. R. 7(b)(2))

Seek written confirmation from transcriptionist(s) that the transcript(s) have been electronically filed.

The Court of Appeals will bill Appellant for printing costs ($1.75 per page). (App. R. 12(c); Appendix F)

Checklist: Civil Appeals from Trial Courts to North Carolina Court of Appeals

©2013 Smith Moore Leatherwood LLP. Last Updated July 2013 -Page 3-

Appellate Mediation5

Return mediation election form by the deadline stated on the form (which is mailed to the parties after the record on appeal is filed).

If both parties consent to mediation, determine whether to seek extension of briefing schedule.

Appellant’s Brief

Appellant’s brief filed within 30 days after the clerk mails6 the printed record to the parties. (App. R. 13)7

Serve brief on all parties within same time. (App. R. 13)

File and serve Appeal Information Statement with Appellant’s brief or before that time. (App. R. 41)8

Include all required sections of the brief. (App. R. 28(b))

Include any required appendix, properly formatted. (App. R. 28(d))

Follow font requirements, formatting requirements, and word/page limitations. For proportional font, include certificate of compliance with word limitations. (App. R. 28(j))

Printing costs will be billed to Appellant ($1.75 per page). (Appendix F)

Appellee’s Brief

Appellee’s brief filed within 30 days after Appellant’s brief has been served. (App. R. 13)9

Serve brief on all parties within same time. (App. R. 13)

Include all required sections of the brief. (App. R. 28(c))

Include any required appendix, properly formatted. (App. R. 28(d))

Follow font requirements, formatting requirements, and word/page limitations. For proportional font, include certificate of compliance with word limitations. (App. R. 28(j))

Printing costs will be billed to Appellee ($1.75 per page). (Appendix F)

5For more information, see the Court of Appeals’ mediation page at http://www.nccourts.org/Courts/Appellate/Appeal/Mediation/Default.asp. 6 Appellant does not get the benefit of the 3-day mail rule. (App. R. 13(a)(1)) 7 Cross-Appellants must file a brief on their cross-appeal issues under same deadlines as the initial Appellant. 8 If the Appeal Information Statement is inaccurate or incomplete, other parties must file corrections within 7 days of service of the original Appeal Information Statement. (App. R. 41(b)(3)) 9 Three extra days are permitted if the Appellant’s brief was served by mail or electronic mail. (App. R. 27(b))

Checklist: Civil Appeals from Trial Courts to North Carolina Court of Appeals ©2013 Smith Moore Leatherwood LLP. Last Updated July 2013

-Page 4-

Reply Brief

Reply brief filed within 14 days after Appellee’s brief has been served. (App. R. 28(h))10

Serve brief on all parties within same time. (App. R. 13)

Limit to concise rebuttal of arguments set out in Appellee’s brief. (App. R. 28(h))

Follow font requirements, formatting requirements, and word/page limitations. For proportional font, include certificate of compliance with word limitations. (App. R. 28(j))

Printing costs will be billed to Appellant ($1.75 per page). (Appendix F)

Oral Argument (Only If Ordered By Court)

If the case is selected for oral argument, counsel intending to argue the case must have personally signed his/her client’s brief. (App. R. 33(a))

If necessary, file original plus three memoranda of additional authorities before oral argument. (App. R. 28(g)) [Memoranda of additional authority cannot be filed electronically in the Court of Appeals.]

Opinion, Mandate, and Optional Petition for Rehearing

After a decision is reached by Court of Appeals, the Clerk enters judgment and issues the mandate 20 days after the written opinion is filed. (App. R. 32) [Note: The mandate is issued automatically. There is no further notification by the Court.]

A petition for rehearing may be filed within 15 days after the mandate is issued. (App. R. 31(a))

Any petition for rehearing must include certificates of two uninterested and qualified attorneys regarding errors. (App. R. 31(a))

Pay the $20.00 docketing fee applicable to petitions for rehearing. (Appendix F)

Consider whether to seek a stay from the trial court to which the mandate is issued. (App. R. 31(e))

If the petition is granted:

Petitioner’s brief filed within 30 days after the case is certified for rehearing. (App. R. 31(d))

Opposing party’s brief filed within 30 days after petitioner’s brief has been served. (App. R. 31(d))

10 Three extra days are permitted if the Appellee’s brief was served by mail or electronic mail. (App. R. 27(b))

Checklist: Civil Appeals from Trial Courts to North Carolina Court of Appeals ©2013 Smith Moore Leatherwood LLP. Last Updated July 2013

-Page 5-

No reply briefs allowed. (App. R. 31(d))

Checklist: Civil Appeals from Trial Courts to North Carolina Court of Appeals

©2013 Smith Moore Leatherwood LLP. Last Updated July 2013 -Page 6-

NORTH CAROLINA RULES OF APPELLATE PROCEDURE CHECKLIST:

Civil Appeals from North Carolina Court of Appeals to Supreme Court of North Carolina1

CHECK BOXES AS COMPLETED:2

APPEALS OF RIGHT BASED ON DISSENT IN COURT OF APPEALS (APP. R. 14(b); N.C. GEN. STAT. § 7A-30)

Notice of Appeal

File notice of appeal of right with the Court of Appeals and with the Supreme Court (i) within 15 days after the mandate of the Court of Appeals has been issued to the trial tribunal or (ii) within 15 days of entry of order denying motion for rehearing. (App. R. 14)

Serve all other parties within same period. (App. R. 14)

If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 10 days after the first notice of appeal was filed. (App. R. 14)

Pay $10.00 certification fee to Court of Appeals. (Appendix F; see also Appellate Style Manual)

Pay $250.00 bond to Supreme Court. (Appendix F)

Pay $10.00 docketing fee to Supreme Court. (Appendix F)

Consider whether to file petition for discretionary review (“PDR”) to seek review by Supreme Court of additional issues that were not part of dissenting opinion.

1 This document is intended as a general guideline only and pertains solely to civil appeals from trial courts. Rather than rely on this document, you should always directly consult and follow the North Carolina Rules of Appellate Procedure when handling appeals. Unless otherwise noted, references to rules are taken from the 2013 North Carolina Rules of Appellate Procedure. To receive updates or to submit comments or suggestions, subscribe to the NCAPB.com blog or contact beth.scherer@smithmoorelaw.com Also consider consulting the Appellate Rules Style Manual, a free guide produced by the NCBA’s Appellate Rules Committee to assist appellate practitioners appearing before North Carolina appellate courts with practical examples, tips, and best practices. A link to the style manual is available on the resources page of the NCAPB.com blog. 2 Note that some steps may not apply to every appeal. Consult the Appellate Rules for specific information.

Checklist: Civil Appeals from North Carolina Court of Appeals to Supreme Court of North Carolina

©2013 Smith Moore Leatherwood LLP. Last Updated July 2013 -Page 1-

If Appellant files both a notice of appeal and PDR, the docketing fee to the Supreme Court is $20.00. (Appendix F)

Briefing

Appellant’s new brief filed with the Supreme Court within 30 days after filing notice of appeal. (App. R. 14(d)(1)) If filing both a PDR and an appeal of right, Appellant’s new brief must be filed within 30 days of Supreme Court’s order regarding the PDR. (App. R. 14(d)(1))

Serve Appellant’s brief on all parties within same time. (App. R. 14(d)(1))

Include all required sections of the brief. (App. R. 28(b))

Include any required appendix, properly formatted. (App. R. 28(d))

Follow font and formatting requirements. [Page and word count limitations do not apply in the Supreme Court.] (App. R. 28(j))

Printing costs will be billed to Appellant ($1.75 per page). (Appendix F)

Appellee’s new brief filed with the Supreme Court within 30 days after service of Appellant’s brief. (App. R. 14(d)(1))3

Serve Appellee’s brief on all parties within same time. (App. R. 14(d)(1))

Include all required sections of the brief. (App. R. 28(c))

Include any required appendix, properly formatted. (App. R. 28(d))

Follow font and formatting requirements. [Page and word count limitations do not apply in the Supreme Court.] (App. R. 28(j))

Printing costs will be billed to Appellee ($1.75 per page). (Appendix F)

Appellant’s new reply brief filed with the Supreme Court within 14 days after service of Appellee’s brief. (App. R. 28(h))4

Serve reply brief on all parties within same time. (App. R. 13)

Limit to concise rebuttal of arguments set out in Appellee’s brief. (App. R. 28(h))

Follow font and formatting requirements. [Page and word count limitations do not apply in the Supreme Court.] (App. R. 28(j))

Printing costs will be billed to Appellant ($1.75 per page). (Appendix F)

3 Three extra days are permitted if the Appellant’s brief was served by mail or electronic mail. (App. R. 27(b)) 4 Three extra days are permitted if the Appellee’s brief was served by mail or electronic mail. (App. R. 27(b))

Checklist: Civil Appeals from North Carolina Court of Appeals to Supreme Court of North Carolina

©2013 Smith Moore Leatherwood LLP. Last Updated July 2013 -Page 2-

DISCRETIONARY REVIEW ON CERTIFICATION BY SUPREME COURT OF NORTH CAROLINA

(APP. R. 15; N.C. GEN. STAT. § 7A-31)

Petition for Discretionary Review (“PDR”)5

PDR filed after determination by Court of Appeals must be filed and served: (i) within 15 days after the mandate of the Court of Appeals has been issued to the trial tribunal or (ii) within 15 days of entry of order denying motion for rehearing. (App. R. 15(b)) PDR filed prior to determination by Court of Appeals must be filed and served within 15 days after the appeal is docketed in the Court of Appeals. (App. R. 15(b))

Pay $10.00 filing fee to Supreme Court. (Appendix F)

Pay $10.00 certification fee to Court of Appeals. (Appendix F; see also Appellate Style Manual)

If PDR is filed by either party, any other party may file its own PDR within 10 days after first PDR is filed. (App. R. 15(b))

Any response to the PDR is due 10 days after service of the PDR. No extensions of time are permitted. (App. R. 15(d))

Briefing Following Certification of Discretion Review by the Supreme Court

Appellant’s New Brief

For a PDR filed after determination by Court of Appeals, Appellant’s new brief must be filed with the Supreme Court within 30 days after the case is docketed by entry of the order of certification. (App. R. 15(g)(2)) For a PDR filed prior to determination by the Court of Appeals, the parties should follow the briefing schedule set forth in App. R. 13. (App. R. 15(g)(1))

Pay $250.00 appeal bond to Supreme Court after certification order is entered.

Serve Appellant’s new brief on all parties within same time.

Include all required sections of the brief. (App. R. 28(b))

Include any required appendix, properly formatted. (App. R. 28(d))

5A Notice of Appeal based on a constitutional question is treated like a petition for discretionary review because the Supreme Court must first determine if the constitutional question is a “substantial” constitutional question. Thus, when a Notice of Appeal based on a constitutional question is filed, Appellant submits to the Supreme Court a $10.00 docketing fee with the notice of appeal. If the Supreme Court accepts the appeal, it will issue a briefing schedule, at which time Appellant should submit a $250.00 appeal bond to the Supreme Court and a $10 certification fee to the Court of Appeals. (See App. R. 14(d)(1); Appellate Style Manual)

Checklist: Civil Appeals from North Carolina Court of Appeals to Supreme Court of North Carolina

©2013 Smith Moore Leatherwood LLP. Last Updated July 2013 -Page 3-

Follow font and formatting requirements. [Page and word count limitations do not apply in the Supreme Court.] (App. R. 28(j))

Printing costs will be billed to Appellant ($1.75 per page). (Appendix F)

Appellee’s New Brief

File Appellee’s new brief with the Supreme Court within 30 days after service of Appellant’s brief.6 (App. R. 15(g)(2))7

Serve Appellee’s brief on all parties within same time. (App. R. 15(g))

Include all required sections of the brief. (App. R. 28(c))

Include any required appendix, properly formatted. (App. R. 28(d))

Follow font and formatting requirements. [Page and word count limitations do not apply in the Supreme Court.] (App. R. 28(j))

Printing costs will be billed to Appellee ($1.75 per page). (Appendix F)

Appellant’s Reply Brief

File reply brief with the Supreme Court within 14 days after service of Appellee’s brief.8 (App. R. 28(h))

Serve reply brief on all parties within same time. (App. R. 15(g))

Follow font and formatting requirements. [Page and word count limitations do not apply in the Supreme Court.] (App. R. 28(j))

Printing costs will be billed to Appellant ($1.75 per page). (Appendix F)

ORAL ARGUMENT BEFORE SUPREME COURT OF NORTH CAROLINA Most cases before the Supreme Court of North Carolina are orally argued. Counsel arguing the case must have personally signed the brief. (App. R. 33(a))

Send written acknowledgment of receipt of Supreme Court’s oral argument notification, and inform the Court who will be arguing.

If necessary, file original plus 14 copies of any memorandum of additional authorities before oral argument. (App. R. 28 (g)) Alternatively, memoranda of additional authority may be filed electronically with the Supreme Court.

6 Three extra days are permitted if the Appellant’s brief was served by mail or electronic mail. (App. R. 27(b)) 7 For a PDR filed prior to determination by the Court of Appeals, Appellee should follow the briefing schedule set forth in App. R. 13. (App. R 15(g)(1)) 8 Three extra days are permitted if the Appellee’s brief was served by mail or electronic mail. (App. R. 27(b))

Checklist: Civil Appeals from North Carolina Court of Appeals to Supreme Court of North Carolina

©2013 Smith Moore Leatherwood LLP. Last Updated July 2013 -Page 4-

PETITIONS FOR REHEARING TO SUPREME COURT OF NORTH CAROLINA A petition for rehearing may be filed within 15 days after the mandate is issued. (App.

R. 31(a))

Any petition for rehearing must include certificates of two uninterested attorneys regarding errors. (App. R. 31(a))

Consider whether to seek a stay from the trial court to which the mandate is issued. (App. R. 31(e))

Pay $20.00 docketing fee applicable to petitions for rehearing. (Appendix F)

If the petition is granted, the petitioner’s brief must be filed within 30 days after the case is certified for rehearing. (App. R. 31(d))

Opposing party’s brief must be filed within 30 days after petitioner’s brief has been served.

No reply briefs are allowed.

Checklist: Civil Appeals from North Carolina Court of Appeals to Supreme Court of North Carolina

©2013 Smith Moore Leatherwood LLP. Last Updated July 2013 -Page 5-

ATTACHMENT N

Smith Moore Leatherwood | Attorneys at Law | www.smithmoorelaw.com

Planning To Pursue An Appeal From A Business Court Decision? It’s A Jungle Out There!

www.ncapb.com

Your Filing Deadline In The North Carolina Business Court Is Really 4:00 p.m. On the Day The Document Is Due.

Elizabeth Brooks SchererT (919) 755-8790

beth.scherer@smithmoorelaw.com

Matthew Nis LeerbergT (919) 755-8759

matt.leerberg@smithmoorelaw.com

Last edited August 3, 2016

Smith Moore Leatherwood | Attorneys at Law | www.smithmoorelaw.com

Bottom line: Unless you believe that both your own and the Business Court’s computer systems are

Notices Of Appeal Must Be Filed In Both The North Carolina Business Court And In The “Home County” By The Appeal Deadline.

Bottom line: File your notice of appeal in both the Business Court and in the “home county” by the

Have A Filed-Stamped Notice Of Appeal In Hand Before The Appeal Deadline.

Notices Of Designation Must Be Timely Filed In Both The Business Court And The Home County.

Smith Moore Leatherwood | Attorneys at Law | www.smithmoorelaw.com

You Should Be Able To Appeal A Designation Order, But The Details Are Still Being Ironed Out.

Bottom line: If your opponent appeals a designation decision, be prepared to wait a year for the

Appeal To The Proper Appellate Court—If You Can Figure Out Which One That Is.

• Which document determines the date that a case was “designated” to the Business Court?

• In an appeal from an order entered in consolidated actions, some of which were designated before October 1, 2014, and other actions that were designated on or after October 1, 2014, which designation date controls?

Smith Moore Leatherwood | Attorneys at Law | www.smithmoorelaw.com

You Must Include In Your Record On Appeal The Designation Documents Showing That You Have Appealed To The Correct Appellate Court.

Note:

Ambiguities In The Business Court Modernization Act May Have Left Unintentional Appellate Jurisdiction Over Some North Carolina Business Court Orders In The North Carolina Court Of Appeals.

A T L A N T A | C H A R L E S T O N | C H A R L O T T E | G R E E N S B O R O | G R E E N V I L L E | R A L E I G H | W I L M I N G T O N

Smith Moore Leatherwood LLP | Attorneys at Law | www.smithmoorelaw.com

Hopefully, this article will help you avoid being bitten as you transition from the North Carolina Business Court to North Carolina’s appellate courts. Just remember: When appealing a Business Court decision, it’s a jungle out there!

ATTACHMENT O

I. The Record on Appeal

Summary of Items Constitutinga Typical Record on Appeal

ITEM HOW SUBMITTED NUMBER OF COPIES WHEN SUBMITTED

Printed Record on Appeal

Filed by Appellant in paper form (No electronic filing). Will be reproduced by Court in black and white.

One. Within 15 days after the record has been settled. See Rule 12(a).

Rule 11(c) Supplement to the Printed Record on Appeal

Filed by Appellant in paper form (No electronic filing).

Three. See Rule 11(c).

With Printed Record.

Rule 9(d) Documentary Exhibits

Filed by Appellant in paper form (No electronic filing).

Three. See Rule 9(d).

Typically with Printed Record.

Rule 9(d) Oversized or Tangible Exhibits

Field by Appellant in original form or, if retained by superior court, delivered by clerk of superior court to clerk of appellate court.

One. Typically with Printed Record or, if delivered by clerk, promptly upon request of party. SeeRule 9(d)(2).

Deposition Transcripts Filed by Appellant in paper form (No electronic filing).

One. With Printed Record.

Transcript of the Proceedings Appealed From

Filed by Court Reporter in electronic (pdf) form.

One. Upon the Record being docketed by the Court.

Rule 9(b)(5) Supplement to the Printed Record on Appeal

Filed by Appellee in paper form (No electronic filing).

Three. See Rule 9(b)(5).

No later than Appellee’s responsive brief.

Appellate Style Manual Page 31

ATTACHMENT P

August 15, 2016

No Transcript? Maybe No Appeal.ncapb.com/2016/08/15/no-transcript-maybe-no-appeal/

About a month ago, the North Carolina Court of Appeals issued an unpublished opinion that underscoredthe importance of compliance with Appellate Rule 9(a), which provides that appeals from the trial division will bereviewed “solely upon the record on appeal, the verbatim transcript of the proceedings, if one is designated, andany other items filed pursuant to this Rule 9.” (emphasis added). In Wilson v. Wilson, the pro se appellant failed tocontract for the transcription of the proceedings that he contended resulted in 21 (yes, twenty-one) issues forappeal. The Court first addressed whether many of these issues should be dismissed because the record onappeal did not have a verbatim transcript, nor did it have a narrative of the trial proceedings as set forth in Rule 9(c)(1) that would have allowed for an understanding of all the issues on appeal (an alternative to the verbatim transcriptrequirement that is allowed by Rule 9(a)(1)(e)). As it was the appellant’s responsibility to provide a complete recordon appeal, which he did not do, the Court undertook a “Dogwood analysis” to determine if such appellate ruleviolations required dismissal of the appeal. The Court held that although the appellant’s violation of Rule 9 (as wellas Rule 7 requiring the appellant to contract for the transcript) was a “nonjurisdictional defect” that under Dogwoodwould not normally lead to the dismissal of the appeal, in this particular case the violations rose “to the level of asubstantial failure or gross violation” of the appellate rules. The Court’s reasoning was that the noncompliance,resulting in the lack of a transcript, effectively prohibited the Court from adequately reviewing the issues on appeal. As such, dismissal of the appeal was warranted as a sanction under Rule 34(b) and Dogwood.

Before ordering that dismissal, though, the Court examined whether an order from the trial court allowing theappellant to proceed in forma pauperis relieved the appellant of the responsibility to acquire the transcripts of theproceedings. Rule 7(a)(1) of the North Carolina Rules of Appellate Procedure affords relief from the transcriptrequirement to a litigant in a civil case who has been declared indigent by the court such that the litigant would beentitled to appointed appellate counsel. Pursuant to N.C. Gen. Stat. § 7A-451(a), civil actions that fall into thiscategory are “(1) any cases in which imprisonment is likely to be adjudged; (2) a hearing on a petition for a writ ofhabeas corpus; and (3) a proceeding on an involuntary commitment.” As the case on appeal contested “pre-trialmatters and distribution of marital assets,” and would not entitle an indigent litigant to appointed counsel, the Courtdetermined that the appellant’s in forma pauperis order did not save his appeal. (Interestingly, on the same day theCourt also issued a published opinion dealing with an indigent appellant’s failure to procure a transcript in an appealof an involuntary commitment proceeding–his failure was excused and the case was remanded for a new hearing. See In re: Shackleford.)

Finally, the Court analyzed whether it should exercise its discretion under Rule 2 of the North Carolina Rules ofAppellate Procedure to suspend the rules and excuse the appellant’s violations (See prior blog post on Rule 2here). The Court determined that there would be “no benefit from that course of action” because without thetranscripts or a narrative of the trial proceedings, the Court could not possibly review the trial court’s rulings. Thus,the Court dismissed 19 of the appellant’s 21 issues on appeal.

The takeaway from this case should be fairly obvious: When appealing, make sure the record on appeal contains averbatim transcript or a narrative of the trial court proceedings sufficient to allow proper review of the issues.

–Patrick Kane

Copyright 2016 North Carolina Appellate Practice Blog

1/1

ATTACHMENT Q

Before You Push Play – Important Considerations When Using Videotaped Depositions at TrialMay 23, 2016 9:36 AM | Posted by Jason Patrick Kairalla and Charles W. Throckmorton | Print this page

Videotaped depositions can be an effective trial tool. When using video at trial, however, attorneys must remain mindful of the court record. Often, especially for long excerpts, court reporters at trial do not see the need to “re-transcribe” previously-recorded deposition testimony, and some judges do not allow it. Instead, the trial transcript may read asfollows:

In such circumstances, the record does not show what was played and what wasnot, and thus the appellate court does not not have a proper record of the testimony at trial.

Preservation Issue:

How best to preserve the record of videotaped deposition excerpts played at trial.

Tips:

While pretrial transcript designations may help, they are often insufficient. Thisis because designations only reflect what a party intends to introduce, not what is ultimately presented to the jury. Cooperation among the parties will aid in preserving a clear record in many instances. For example, the parties can agree, in advance, about which excerpts each side will play and get that agreement blessed by the court. In the absence of advance agreement, the parties cansubmit after-the-fact stipulations confirming the excerpts presented to the jury. Unfortunately, opposing parties do not always cooperate, and there may be honest disagreement about what was actually played.

Care, diligence, and planning are required to properly address this preservation issue. Make sure that complete, original transcripts are in the court record (along with copies of the video, if allowed). Each transcript should include anyassociated signature pages, errata sheets, or similar documents. Make sure that exhibits utilized in the deposition excerpt are admitted at trial and included in the trial record as necessary. Prior to presenting testimony by deposition, speak with the court reporter about his or her preferences, as well as the judge’s, andplan accordingly. Also, consider documenting in the court record some convention for labeling each deposition excerpt (e.g., “Excerpt 001”). Then, before pressing play, where practical, announce either the reference number or the transcript cite (page and line) for the beginning and end of the excerpt.

In circumstances where the videotaped testimony is re-transcribed by the court reporter at trial, it is important, on an ongoing basis, to compare the trial transcript to the deposition transcript and resolve any material discrepancies. Finally, seek leave to filing a disc containing the utilized video excerpts, preferably with synchronized deposition text displayed on the screen.

“(Whereupon excerpts from the videotaped deposition of [WITNESS] were played to the jury.)”; or

“(A portion of videotape was played for the jury.)”

Related Information

Related Attorneys

Kairalla, Jason PatrickThrockmorton, Charles W.

Related Services

National Appellate Practice and Trial SupportNational Trial Practice

Page 1 of 1Blog

9/21/2016https://www.carltonfields.com/preservation-of-error-blog/blog.aspx?entry=1093

ATTACHMENT R

I. The Record on Appeal

STATEMENT OF TRANSCRIPT OPTION

Per Appellate Rules 7(b) and 9(c), the transcript of the entire proceedings in this case (excepting the jury selection and arguments of counsel), taken by Jane Doe, Court Reporter, from 12 November 2009 through 15 November 2009, consisting of 399 pages, numbered 1-399, bound in one volume, will be electronically filed by Jane Doe promptly once a docket number is assigned to this appeal.

Transmitted with the record are the portions of the deposition of Wyle E. Coyote (Vol. 1, pages 10-45) that were submitted to the court in connection with the motion for summary judgment.

Notes on Statement of Transcript Option:

By Rule 9(a)(1)e, the Appellant has the option of setting forth a narration of the proceedings below, Rule 9(c)(1), or submitting a verbatim transcript of those proceedings, Rule 9(c)(2).

The narration option might be selected if a verbatim transcript cannot be produced and such evidence is necessary to the appeal. Narration involves producing a written summary of such evidence, which is then placed directly in the record. If the parties cannot agree on the content of the narration, the trial judge can settle the narration under Rule 11(c), upon timely request for judicial settlement.

If a verbatim transcript is used instead, the transcript is not included in the printed record on appeal, but rather the printed record must include a statement explaining that a verbatim trial transcript will be filed separately by the court reporter after a docket number is assigned to the appeal. See Rule 9(a)(1)e.

The 2009 amendments to the Appellate Rules involved substantial changes to the handling of verbatim transcripts of trial-level proceedings. Whereas the Appellant used to file a printed copy of the transcript with the final record on appeal, the court reporter now files the transcript directly with the court in electronic format. See Rule 7.

The statement of transcript option may also indicate that deposition testimony (or portions thereof) will be presented in connection with the record on appeal. See Rule 9(c)(4). The Appellate Rules do not require that deposition testimony be submitted in electronic format. Instead, the Appellant should submit the deposition transcript(s) with, but separate from, the printed record on appeal. See id.

By convention, the appellate courts disfavor condensed transcripts (in which multiple pages are displayed on a single sheet of paper). If, for example, a deposition is only available in condensed format, consider converting it to a full-page format and entering a stipulation that the parties agree that the substituted transcript is authentic.

- 7 -

Appellate Style Manual Page 14

ATTACHMENT S

II. The Briefs

Notes on Electronic Filing:

The Court of Appeals and Supreme Court have embraced electronic filing of briefs and certain other documents through the website http://www.ncappellatecourts.org.See Rule 26(a)(2).

Although Rule 26(a)(2) states that “[a]ll documents may be filed electronically through the use of this site,” the Court of Appeals states on the website that “you cannot e-file TPR 3.1 cases, Records, 9(b)(5) Supplements, or Memos of Additional Authority (Three paper copies must be sent).”

Please be aware that electronic filing does not mean electronic service. You are still responsible for serving your electronically filed documents on all parties. See Rule 26(b).

Electronically filed documents need not be signed by hand. Instead, it is customary to type “Electronically submitted” where the signature would have appeared, as follows:

[Name of Counsel’s Firm]

Electronically submitted[Name of Counsel][State] Bar No. _____[Counsel’s telephone number][Counsel’s email address][Firm address]

If more than one attorney is listed for the party(ies) on an electronically filed document, Rule 33(b) requires the below certification to follow the lead counsel’s signature block, including the address, phone number, state bar number, and email address for each additional attorney.

N.C. R. App. P. 33(b) Certification: I certify that all of the attorneys listedbelow have authorized me to list their names on this document as if they had personally signedit.

[Complete signature block for each additional attorney representing Appellants]

Attorneys for Plaintiffs-Appellants

- 10 -

Appellate Style Manual Page 54

ATTACHMENT T

DISCLAIMER: THIS IS NOT A PRODUCTION OF THE SUPREME COURT OF NORTH CAROLINA. IT IS A PUBLICATION OF THE NORTH CAROLINA BAR ASSOCIATION.

GUIDE FOR COUNSEL FOR ORAL ARGUMENTS

BEFORE THE SUPREME COURT OF NORTH CAROLINA

Prepared and Distributed by: The Appellate Rules Committee of The North Carolina Bar Association © 2011, 2012 North Carolina Bar Association. All rights reserved. Latest Revision Date: January 2013

The Committee appreciates the advice and comments of those who use the guide. Please send your suggestions to the Appellate Rules Committee, NC Bar Association, P.O. Box 3688, Cary NC 27519 or to kcrouch@ncbar.org.

GUIDE FOR COUNSEL FOR ORAL ARGUMENTS BEFORE THE SUPREME COURT OF NORTH CAROLINA

I. INTRODUCTION

This guide is intended to help attorneys who will be arguing before the Supreme Court of North Carolina. A separate guide is available here for attorneys arguing before the North Carolina Court of Appeals. In addition to this guide, counsel also should thoroughly review the North Carolina Rules of Appellate Procedure, which govern in all arguments before the State's appellate courts. Additional assistance with preparing briefs and other filings can be found in the Appellate Style Manual, which is available here. An abbreviated reference guide comparing and contrasting oral argument procedures and practices before the North Carolina Court of Appeals, the Supreme Court of North Carolina, and the U. S. Court of Appeals for the Fourth Circuit is available here. The Clerk and staff of the Supreme Court also are available to answer questions and provide assistance:

Supreme Court of North Carolina Clerk’s Office 2 East Morgan St. Raleigh, NC 27601 P.O. Box 2170 Raleigh, NC 27602-2170 (919) 831-5700

The Supreme Court is open Monday through Friday (except for State holidays), 8:00 a.m. through 5:00 p.m.

II. ORAL ARGUMENT BEFORE THE SUPREME COURT

A. The scheduling of oral argument

The Supreme Court normally holds oral arguments between January and May and between September and December of each year. Argument sessions at the Supreme Court begin at 9:30 a.m. After the appellee’s brief is filed, the Court will notify the parties of the session when the Court will hold an oral argument for the appeal. The Supreme Court rarely decides cases solely on the briefs, but will notify the parties if the Court intends to decide a particular appeal without oral argument. Whenever you have an appeal before the Supreme Court, you should promptly notify the Court of any dates for which you request secure leave. Refer to North Carolina Rule of Appellate Procedure 33.1 for instructions on requesting secure leave. Conflicts between a scheduled oral argument and a proceeding in another court should be resolved pursuant to North

Carolina’s Guidelines for Resolving Scheduling Conflicts. Once an oral argument has been scheduled in the Supreme Court, requests for rescheduling will rarely be granted. B. The day of argument

The Supreme Court is located at Two East Morgan Street in downtown Raleigh. Several parking lots and decks open to the public are nearby, including parking lots and decks at: 120 South Wilmington St. 1 South Wilmington St. 201 West Morgan St. 222 West Hargett St. On the day of the argument, you should arrive at the Court in plenty of time to pass through security, find the courtroom, and settle into your seat before the session is scheduled to begin. The Justice Building opens at 8:00 a.m. The courtroom, located on the third floor, opens at 8:30 a.m. Oral arguments begin at 9:30 a.m. If you intend to argue, the Supreme Court requires that you personally sign the brief. If you did not personally sign the brief before it was filed, you should visit the Clerk’s office before your argument to sign. Allow plenty of time before your argument session to do so. However, an electronically filed brief is considered personally signed by any counsel whose name is listed on the brief. See App. Rule 28(i). You should be in the courtroom at the beginning of the session even if your appeal is not scheduled to be heard first. The argument schedule is subject to change, and your appeal may be heard earlier than expected. If counsel is not present, argument will proceed. On arriving in the courtroom, counsel for the first argument may sit at the counsel tables. Appellant’s counsel sits at the right-hand table (if you are facing the bench), and appellee's counsel sits at the left-hand table. Only counsel should sit at the tables. Clients and other observers should sit in the audience. Counsel whose appeal is not scheduled first also should sit in the audience until their appeal is called. Laptops are not currently allowed at the Supreme Court. Cellular phones must be placed on mute or turned off while you are in the courtroom. Water is provided at the counsel tables. Food and drink should not be brought into the courtroom. C. The argument

The session begins with the Clerk sounding the gavel as all rise, and the Justices enter the courtroom. Then, while all remain standing, the Clerk opens court. Sessions of the Supreme Court are presided over by the Chief Justice. After any introductory comments, the Chief Justice will call the first case for argument. Counsel for the appellant should then step to the lectern. If the case involves cross-appellants, traditionally the party that filed its notice of appeal first will argue first. It is

customary to open with the phrase, "May it please the Court" and to introduce yourself before beginning your argument. The appellant and the appellee each has thirty minutes for its argument. If there are multiple appellants or appellees, they still receive only a total of thirty minutes for their side of the argument. Dividing the thirty minutes among multiple counsel is allowed. On motion, counsel for amici curiae may be allowed to participate. See Rule 28(i). The appellant’s counsel may reserve part of his or her thirty minutes for rebuttal. Appellant’s counsel should notify the Court at the beginning of counsel’s argument if counsel wants to reserve rebuttal time. It is customary for the appellant to reserve five to ten minutes, but the Court may allow more time to be reserved. During rebuttal, the appellant’s counsel is generally prohibited from raising issues that were not raised during the parties’ primary arguments.

During the argument, Justices on the Supreme Court should be referred to as "Justice" or "Your Honor." The Chief Justice should be referred to as “Chief Justice” or “Your Honor.” A timer on the lectern counts down from 30:00 and shows the total time remaining, including rebuttal time. Appellant’s counsel must keep track of when counsel is into rebuttal time. The red light on the timer will indicate when time has expired. Counsel should end the argument at that point and sit down. You are not required to use your full argument time. If you finish your argument before your time has expired, notify the Court that your argument has concluded.

After the appellant’s counsel finishes the argument and leaves the lectern, the appellee’s counsel should immediately step to the lectern. The appellee’s counsel should open with the phrase “May it please the Court” and introduce himself or herself before starting the argument. After the appellee’s counsel concludes appellee’s argument, appellant’s counsel may return to the lectern to use any time reserved for rebuttal. No further argument will be allowed after the appellant's rebuttal. You may use exhibits during the argument if they are part of the record. The Supreme Court’s courtroom does not accommodate electronic display of exhibits. Consequently, any exhibits used must be large enough to be seen by the Justices from the counsel tables. Exhibits may also be handed to the Supreme Court Clerk for distribution to the justices. If you have copies of exhibits to be distributed, they should be given to the Clerk in advance of oral argument. Before oral argument, you should also notify opposing counsel of exhibits that you intend to use. Once oral argument for one appeal concludes, the Chief Justice will call the next case for argument, if any. Counsel who have just finished arguing should promptly leave the counsel tables and take with them any materials that they brought. They may quietly leave the courtroom if they wish. Counsel for the next case should promptly take their seats at the counsel tables. If three or more arguments are scheduled for a single session, the Court will generally take a short recess after the second argument.

Once all oral arguments have been completed for the session, the Court will adjourn. The Clerk will instruct all to rise while the Justices leave the courtroom. D. Preparation and Delivery of Oral Argument Joseph Story (Associate Justice, Supreme Court of the United States two centuries ago) stated in this excerpt from his poem entitled “Advice to an Advocate” that the appellate advocate during oral argument should do the following: Be brief, be pointed; let your matter stand Lucid, in order, solid, and at hand; Spend not your words on trifles, but condense; Strike with mass of thoughts, not drops of sense; Press to the close with vigor, once begun, And leave (hard the task!) leave off when done;…

1. Preparation a. Visit the Court Most good appellate advocates devote substantial blocks of time to preparation for their

oral argument—generally from one week to several weeks. The variation depends on the attorney’s level of experience and the complexity of the case. Well in advance of your oral argument, visit the Court on one or more days and observe several oral arguments. There is only one courtroom for the Supreme Court, which is restored to its original elegance, and is beautiful and dignified. To choose good days to observe, check the dockets on www.nccourts.org. If possible, choose oral arguments on topics closely related to the topic of your case. If you are able to find a case with a topic closely related to the topic of your case, review the parties’ briefs online.

Also, look to see what the issues are in the cases being argued on the same day as your

case. Occasionally, the issues are related and the justices will ask about an argument from a prior case that day that implicates your argument.

The Court visit is also a trial run for you to determine how long it takes to get to the

Court, where to park, where the facilities are, and where you are supposed to sit, stand and put your belongings while you argue. Another way to plan your visit is to look on the docket for names of practitioners and/or firms that you respect or that your colleagues recommend. Biographies of the justices and a seating chart are available at www.nccourts.org/Courts/Appellate/Supreme. Dress professionally, and, if you bring anyone with you, be sure he or she dresses professionally as well. Be prompt and enter before the Court convenes or during breaks in the arguments. Note the timing, pace and style of attorneys’ arguments, and what seems effective. Note the concerns of the justices, how they present their questions, and how counsel most effectively answers their questions.

Adjacent to the courtroom is an attorneys’ room. Attorneys can enter from the hallway, and from there enter the courtroom. It is wise to consider carefully whether to enter the attorneys’ room. Many advocates prefer to avoid distractions by sitting in the courtroom and waiting for their cases to be called. Also, many advocates have found that it is best to go straight from home to Court; for example, do not go to the office and undertake new tasks. By the same token, it may be unwise to bring a client to Court during your oral argument. Your attention should be focused entirely on presentation of your argument. If for some reason you bring your client to courtroom, do not introduce or point to your client or mention his or her presence to the Court.

The Clerk’s Office has available digital recordings of attorneys’ arguments, which can be

purchased for a small fee. Contact the Clerk’s office for further information about how to obtain copies.

b. Moot

It is highly recommended that you arrange for a panel of your colleagues to sit as mock judges to moot your oral argument, at least once, but preferably twice. This gives you an opportunity to re-think your argument in response to unanticipated questions by your moot panel. Give both parties’ briefs to each of the moot judges to read prior to the moot sessions. Schedule the first session about a week before oral argument. Then, re-group and work on your oral argument and have a second moot session a couple of days before the oral argument. If possible, have at least one attorney serving as a moot judge who is familiar with the substantive area of law. Also have at least one attorney serving as a moot judge who is unfamiliar with the substantive area of law.

c. Practice before a mirror and/or on video It is very helpful to break bad habits and cultivate good habits by practicing on your feet, at a podium before a mirror or on video. There is nothing like observing one’s own facial tic or wry smile at the wrong moment to motivate one to drop that sort of mannerism before oral argument. 2. Master your case

a. Master the record and transcript Read and re-read the record and tab important documents in the record. It is critical to know what is contained in the documents—usually many of the facts at the heart of your case. Read and re-read the transcript of the proceeding in the court below. It is also critical to know intimately what transpired in the proceeding that is the subject of your appeal.

b. Master the judicial opinions and statutes Several times, read, re-read, and highlight copies of both briefs and of statutes, regulations, rules, and judicial opinions cited in both briefs. As you read and study, make a list of questions and follow-up work. Mark clean copies of important statutes, other authorities, and opinions and take them with you to court. Beginning a few weeks before you argue, shepardize the statutes and opinions once a week, and again the day before you argue. If there are changes, submit a memorandum of additional authority pursuant to Rule 28(g). When possible, file the memorandum at least a few days before argument so the justices have the opportunity to review the material. At oral argument, counsel may not refer to any authorities not cited in the briefs or in a memorandum of additional authority. See App. Rule 28(g).

c. Master opposing counsel’s arguments Again, several times, read, re-read and highlight your opponent’s brief. Note any arguments with potential merit and prepare your responses. Note any weaknesses in your argument and know how to address them; and note any weaknesses in your opponent’s arguments and prepare your responses to them. Re-read the authorities in support of your opponent’s arguments and be prepared to distinguish them, if possible. It is best to do this hard work now so that you are well prepared when you are on your feet at oral argument.

d. Prepare a short recitation of the facts Choose key facts and prepare a short recitation of the facts.

e. Prepare an argument outline Prepare an outline of the major issues and best legal and policy arguments. One method is to put the most important issues first, followed by issues of lesser importance in descending order. Keep condensing the outline until it is two to three pages long. Type the outline in all capital letters. One approach is to highlight key words first in yellow, then in other colors until the most important words are most highlighted. Finally, use your pen to make final comments, etc. When you begin practicing your oral argument, use your outline. After finishing your practice sessions, make needed revisions to the outline.

f. Develop a theme or theory of the case Many advocates have found that the theme or theory of the case can best be developed in explanation of the case to non-attorney friends. The theory is based on the idea that ruling in favor of your client’s position is the just thing to do. In one or two sentences, explain why the Court should rule in favor of your client. Keep this theory in mind as you prepare and argue your case.

3. At the Lectern

a. Opening Greet the Court. Write down your opening lines, “May it please the Court,” followed by “Chief Justice and Associate Justices,” “I am (and write your name), and I represent (name of client).” If you are appellant, you should reserve time for rebuttal. The advocate should have an outline of what he or she intends to say if the Court allows him or her to give a brief opening without interruptions to ask questions.

b. The argument Oral argument is a chance to respond to the justices’ questions about your case before they vote and write their opinion. You should be prepared to answer any potential questions about your case. Oral argument builds on extensive preparation by counsel. Do not read or memorize a presentation to the Court. However, prepare to 1) make a presentation in the event you receive no questions from the justices; and, 2) know how to answer questions, but still be able to steer the discussion back to your main points if you get many questions from the Court. Be respectful. Articulate clearly. Speak loudly enough to be heard and slowly enough to be understood. Use a normal tone of voice, and talk to the justices about the case. As in any setting, if you do not know the answer to a question, say so, but offer to do further research to answer the question for the judge in a supplemental memorandum to be filed after oral argument.

Relax, be yourself and keep eye contact with all the justices. Although your purpose is to engage in dialogue with the Court, your style should remain dignified. The microphone and timer lights use some of the limited space on the lectern, which may interfere with placement of an opened notebook or other items. Project your voice, speak into the microphone, and enunciate so that all the justices can hear you. It is important to speak with conviction. When you have made your point, do not continue to argue it. When referring to a judicial opinion, to keep the flow of your argument, do not routinely give the citation to the Court. Do not refer to facts or materials outside the record. You may use exhibits entered into evidence at the trial court. However, use exhibits only when they will make a critical point that cannot be otherwise made. Be extremely cautious about using any kind of humor or informality in addressing the Court. The Court expects advocates to exhibit a serious and respectful demeanor. When the justices use humor, respond briefly in acknowledgment and appreciation of the humor and move on.

c. Answering questions Listen very carefully to the Court’s questions. Ask for repetition or clarification if you cannot hear or understand. Respond to each of the questions or comments in a respectful tone of voice. Never interrupt the Court. So long as you are fully prepared, you will naturally cover your major points in answering the Court’s questions. The best approach is to remain flexible and open to answer questions in any order given. In response to a question, it is unwise to say, “I’ll address that point later” since the question contains what the judge is most concerned about. The Court may ask questions hypothesizing that the facts are slightly different in some respect, and asking whether the proposed rule would still apply. Do not answer these hypothetical

questions solely by stating, “That is not this case.” In responding to these questions, repeat your strong points and themes. Counsel should not try to avoid answering questions.

d. Conclusion As in all good courtroom practice, request that the Court rule in your client’s favor and tell the Court specifically how you would like the Court to rule. Reiterate for the Court the one or two strongest arguments. Thank the Court. 4. Checklists (Adapted from Supreme Court and Appellate Advocacy, David C. Frederick, Thomson West (2009))

a. Basic Chronology of Preparation

--Review Briefs --Review Records --Review Judicial Opinions, Statutes, Rules, Regulations Cited in Briefs --Draft List of Potential Questions --Draft Opening --Prepare Argument by Issue or/ Section of Briefs --Research and Prepare Answers to Potential Questions --Conduct Moot Courts --Revise Argument/Answers --Tab Record Materials and Briefs for Quick Reference --Make List of Key Affirmative Points --Develop Segues --Prepare Argument Notebook --Memorize Opening --Review Argument Notebook--Judicial opinions, rules, regulations --Review Briefs

b. Items to Prepare

--Key Portions of Record on Appeal --Key Precedents --Affirmative Points --Responsive Points to Opponent’s Arguments --Statutory Text --Legislative History --Applicable Rules of Procedure --Policy Rationale for Rule Being Advocated --Legal and Factual Analogies Raised by Issue Presented --Opening --Closing

c. Items in Argument Notebook

--Opening --Affirmative Points --Responsive Points to Opponent’s Arguments --Key Statutes, Rules, Regulations --Brief Chronology of Facts and Proceedings --Summaries of Judicial Opinions --Questions and Answers --Key Judicial Opinion or Opinions

d. Items to Take to Court

--Time-keeping device --Argument Notebook --Briefs --Binder of judicial opinions --Record on Appeal --Pertinent Statutes --Pertinent Rules and Regulations --Pens --Pad of paper --Post-its or Tabs --Throat lozenges --Glasses --Contact lenses, case, and solution --Tissues --Hi-liter --Comb or hairbrush

Sources and Resources: A Practitioner’s Guide to Appellate Advocacy, Anne Marie Lofaso, Editor, American Bar Association, 2010, See Chapter 15, “Oral Argument,” by Lawrence D. Rosenberg, partner, Jones Day, Washington, DC. (excellent essay) Appellate Practice in the U.S., Second Ed., Robert L. Stern, Bureau of National Affairs, Bureau of National Affairs, 1989, See Chapters 13-15: 13-“Before the Argument”; 14- “Preparation for Argument”; 15- “The Contents of the Argument.” Art of Advocacy: Appeals, Houts, Rogosheske, Matthew Bender, 2009, See Chapters 40-42: 40-“The Tragic Passing of Oral Argument”; 41-“A Few Tips on Public Speaking”; 42-“Do’s and Don’ts for Oral Argument—contains good chart of suggestions.” (notebook with updates)

How to Handle an Appeal, 4th Ed., Herbert Monte Levy, Practicing Law Institute, New York, 2009, See Chapter 9: “Oral Argument,” (notebook with updates).

Making Your Case: The Art of Persuading Judges, Antonin Scalia and Bryan Garner, Thomson/West, 2008. Mastering Appellate Practice in North Carolina, Continuing Legal Education, North Carolina Bar Foundation, 2007. See Chapter IV, “Keys to Succeeding at Oral Argument,” James G. Exum, Smith Moore, Greensboro, North Carolina. North Carolina Appeals Deskbook, Gordon Widenhouse, Jr., Ed., Lexis Nexis, 2008.

Supreme Court and Appellate Advocacy, David C. Frederick, Thomson West, 2009.

Winning An Appeal, 4th Ed., Myron Moskovitz, Matthew Bender, 2007, See Chapter 5, “Oral Argument.” (excellent slim volume of practical advice)

Maps: Court and Parking

http://www.godowntownraleigh.com/get-around/parking

http://www.visitraleigh.com/pdf/Downtown_map_printable.pdf

http://www.raleighconvention.com/raleigh-downtown-city-map.php

http://www.godowntownraleigh.com/go/state-court-of-appeals

* * * * * Disclaimer

North Carolina Bar Association publications are intended to provide current and accurate information and are designed to assist in maintaining professional competence.

Publications are distributed with the understanding that the North Carolina Bar Association does not render any legal, accounting or other professional services. The contributing authors to this publication have exerted their best professional skills to assure the accuracy of its contents. All original sources of authority presented by this publication should be independently researched in dealing with any client’s or your own specific legal matters. © 2012 by the North Carolina Bar Association, Inc. ALL RIGHTS RESERVED. Permission is hereby granted for the copying of pages or portions of pages of this book by or under the direction of licensed attorneys for use in the practice of law. No other use is permitted without the express written consent of the North Carolina Bar Association.

ATTACHMENT U

DISCLAIMER: THIS IS NOT A PRODUCTION OF THE NORTH CAROLINA COURT OF APPEALS. IT IS A PUBLICATION OF THE NORTH CAROLINA BAR ASSOCIATION.

GUIDE FOR COUNSEL FOR ORAL ARGUMENTSBEFORE THE

NORTH CAROLINA COURT OF APPEALS

Prepared and Distributed by: The Appellate Rules Committee of The North Carolina Bar Association© 2014 North Carolina Bar Association. All rights reserved.

Latest Revision Date: January 2014

The Committee appreciates the advice and comments of those who use the guide. Please send your suggestions to the Appellate Rules Committee, NC Bar Association, P.O. Box 3688, Cary NC 27519 or to kcrouch@ncbar.org.

2

GUIDE FOR COUNSEL FOR ORAL ARGUMENTS BEFORE THE NORTH CAROLINA COURT OF APPEALS

I. INTRODUCTION

This guide is intended to help attorneys who will be arguing before the North Carolina Court of Appeals. A separate guide is available here for attorneys arguing before the North Carolina Supreme Court. In addition to this guide, counsel also should thoroughly review the North Carolina Rules of Appellate Procedure, which govern in all arguments before the State's appellate courts. Additional assistance with preparing briefs and other filings can be found in the Appellate Style Manual, which is available here. An abbreviated reference guide comparing and contrasting oral argument procedures and practices before the North Carolina Court of Appeals, the Supreme Court of North Carolina, and the U. S. Court of Appeals for the Fourth Circuit is available here.

The Clerk and staff of the Court of Appeals also are available to answer questions and provide assistance:

North Carolina Court of Appeals Office of the Clerk 1 West Morgan St. Raleigh, NC 27601

P.O. Box 2779 Raleigh, NC 27602 (919) 831-3600

The Court of Appeals is open Monday through Friday (except for State holidays), 8:00 a.m. through 5:00 p.m.

II. ORAL ARGUMENT BEFORE THE NORTH CAROLINA COURT OF APPEALS

A. The scheduling of oral argument

The Court of Appeals generally holds oral arguments year-round except from early June to approximately mid-August. The Court of Appeals holds morning sessions that begin at 9:30 a.m. and afternoon sessions that begin at 1:00 p.m.

After the appellee’s brief is filed, the Court will notify the parties of the session when the Court will consider the appeal. An appeal usually will be calendared for oral argument or for decision on the briefs approximately two to three months after the appellee’s brief is filed. The notice also will identify the three-judge panel assigned to the appeal. Not all cases are decided with oral argument, and many are decided on the briefs alone. You should attend Court only if the notice that you receive states that there will be an oral argument for your appeal.

Whenever you have an appeal before the Court of Appeals, you should promptly notify the Court of any dates for which you request secure leave. Refer to North Carolina Rule of

3

Appellate Procedure 33.1 for instructions on requesting secure leave. Conflicts between a scheduled oral argument and a proceeding in another court should be resolved pursuant to North Carolina’s Guidelines for Resolving Scheduling Conflicts.

Once an oral argument has been scheduled in the Court of Appeals, requests for rescheduling generally will be granted only if there is good cause, the opposing party consents, and another argument date is available before the assigned panel.

B. The day of argument

The Court of Appeals is located at One West Morgan Street in downtown Raleigh. Several parking lots and decks open to the public are nearby, including parking lots and decks at:

120 South Wilmington St. 1 South Wilmington St. 201 West Morgan St. 222 West Hargett St.

On the day of the argument, you should arrive at the Court in plenty of time to pass through security, find the courtroom, and settle into your seat before the session is scheduled to begin. The Court opens at 8:00 a.m., and the courtroom is located on the third floor. Please note: Arguments are not always held in Raleigh. Please read the oral argument notice carefully to be sure you go to the right place.

If you intend to argue, the Court requires that you personally sign the brief. If you did not personally sign the brief before it was filed, you should visit the Clerk’s office before your argument to sign. Allow plenty of time before your argument session to do so. However, an electronically filed brief is considered personally signed by any counsel whose name is listed on the brief. See App. Rule 28(i).

You should be in the courtroom at the beginning of the session even if your appeal is not scheduled to be heard first. The argument schedule is subject to change, and your appeal may be heard earlier than expected. If counsel is not present, arguments will generally proceed in counsel’s absence.

On arriving in the courtroom, counsel for the first argument may sit at the counsel tables. Appellant’s counsel sits at the right-hand table (if you are facing the bench), and appellee's counsel sits at the left-hand table. Only counsel should sit at the tables. Clients and other observers should sit in the audience. Counsel whose appeal is not scheduled first also should sit in the audience until their appeal is called.

Cellular phones must be placed on mute or turned off while you are in the courtroom. Laptops may be used at the counsel tables as long as the sound is turned off.

Water is provided at the counsel tables. Food and drink should not be brought into the courtroom.

4

C. The argument

The session begins with the Marshal of the Court of Appeals instructing all to rise, after which the Judges will enter. Sessions are presided over by the most senior Judge on the panel. After any introductory comments, the presiding Judge will announce the first argument.

At that point, counsel for the appellant should step to the lectern. If the case involves cross-appellants, traditionally the party that filed its notice of appeal first will argue first. It is customary to open with the phrase, "May it please the Court" and to introduce yourself before beginning your argument.

The appellant and the appellee each has thirty minutes for its argument. If there are multiple appellants or appellees, they still receive only a total of thirty minutes for their side of the argument. Dividing the thirty minutes among multiple counsel is allowed. For good cause, the Court may extend the thirty-minute period, but requests for extensions are rarely granted. On motion, counsel for amici curiae may be allowed to participate. See Rule 28(i).

The appellant’s counsel may reserve part of his or her thirty minutes for rebuttal. Appellant's counsel should notify the Court at the beginning of his or her argument if counsel wants to reserve rebuttal time. It is customary for the appellant to reserve five minutes, but the Court may allow more time to be reserved. The Court of Appeals rarely allows an appellant to reserve more than ten minutes for rebuttal. However, the appellant’s counsel should expect no more time for rebuttal than counsel reserves, even if counsel finishes his or her opening argument before the time for that argument expires. During rebuttal, the appellant’s counsel is generally prohibited from raising issues that were not raised during the parties’ primary arguments.

After the appellant’s counsel finishes his or her argument and leaves the lectern, the appellee’s counsel should immediately step to the lectern. The appellee’s counsel should open with the phrase “May it please the Court” and introduce himself or herself before starting the argument. After the appellee’s counsel concludes his or her argument, appellant’s counsel may return to the lectern to use any time reserved for rebuttal. No further argument will be allowed after the appellant's rebuttal.

During the argument, Judges on the Court of Appeals should be referred to as "Judge" or "Your Honor." If the panel includes the Chief Judge of the Court of Appeals, the Chief Judge should be referred to as “Chief Judge” or “Your Honor.”

A timer on the lectern counts down from 30:00 and shows the total time remaining, including rebuttal time. Appellant’s counsel must keep track of when counsel is into rebuttal time. The red light on the timer will indicate when time has expired. Counsel should end the argument at that point and sit down.

You are not required to use your full argument time. If you finish your argument before your time is over, notify the Court that your argument is finished. Ensure that the Court has no further questions before you sit down.

5

You may use exhibits during the argument if they are part of the record. There is an “elmo” display beside the lectern where you can place exhibits to be displayed on a television in the courtroom and on screens that are before each Judge. The courtroom can also accommodate PowerPoint presentations, although you should provide the Court with advance notice if you intend to use PowerPoint. Counsel unfamiliar with the courtroom’s electronic equipment are advised to contact the Clerk’s office to arrange a time to familiarize themselves with it before their argument.

Once oral argument for one appeal concludes, the presiding Judge will call the next appeal, if any. Counsel who have just finished arguing should promptly leave the counsel tables and take with them any materials that they brought. They may quietly leave the courtroom through the side door if they wish. Counsel for the next appeal should promptly take their seats at the counsel tables.

If three or more arguments are scheduled for a single session, the Court will generally take a short recess after the second argument.

Once all oral arguments have been completed for the session, the Court will adjourn. The Marshal will instruct all to rise while the Judges leave the courtroom.

D. Preparation and Delivery of Oral Argument

Joseph Story (Associate Justice, Supreme Court of the United States two centuries ago) stated in this excerpt from his poem entitled “Advice to an Advocate,” that the appellate advocate during oral argument should do the following:

Be brief, be pointed; let your matter stand Lucid, in order, solid, and at hand; Spend not your words on trifles, but condense; Strike with mass of thoughts, not drops of sense; Press to the close with vigor, once begun, And leave (hard the task!) leave off when done;…

1. Preparation

a. Visit the Court

Most good appellate advocates devote substantial blocks of time to preparation for their oral argument—generally from one week to several weeks. The variation depends on the attorney’s level of experience and the complexity of the case. Well in advance of your oral argument, visit the Court on one or more days and observe several oral arguments. There is only one courtroom for the North Carolina Court of Appeals, which is restored to its original elegance, and is beautiful and dignified. To choose good days to observe, check the dockets on www.nccourts.org. If possible, choose oral arguments on topics closely related to the topic of your case. If you are able to find a case with a topic closely related to the topic of your case, review the parties’ briefs online.

6

Also, look to see what the issues are in the cases being argued on the same day as your case. Occasionally, the issues are related and the judges will ask about an argument from a prior case that day that implicates your argument.

Another way to plan your visit is to look on the docket for names of practitioners and/or firms that you respect or that your colleagues recommend. In the North Carolina Court of Appeals, look on the docket for judges’ panels that include some or all of your panel members. Biographies of the judges on your panel in the North Carolina Court of Appeals are available on the website at www.nccourts.org.

Dress professionally, and if you bring anyone with you, be sure he or she dresses professionally as well. Be prompt and enter before Court convenes or during breaks in the arguments. Note the timing, pace, and style of attorneys’ arguments, and what seems effective. Note the concerns of the judges, how they present their questions, and how counsel most effectively answers their questions.

Adjacent to the rear door to the courtroom is a table with chairs, which is part of the library. It is located where the attorneys’ room or “cloaking room” was previously located. It is wise to consider carefully whether to wait for one’s argument at the table. Many advocates prefer to avoid distractions by sitting in the courtroom and waiting for their cases to be called. Also, many advocates have found that it is best to go straight from home to Court; for example, do not go to the office and undertake new tasks. By the same token, it may be unwise to bring a client to Court during your oral argument. Your attention should be focused entirely on presentation of your argument. If for some reason you bring your client to Court, do not introduce your client to the Court.

The Court visit is also a trial run for you to determine how long it takes to get to the Court, where to park, where the facilities are, and where you are supposed to sit, stand and put your belongings while you argue.

The Clerk’s Office has available CD recordings of attorneys’ arguments, which can be purchased for a small fee. Contact the Clerk’s office for further information about how to obtain copies.

b. Moot

It is highly recommended that you arrange for a panel of your colleagues to sit as mock judges to moot your oral argument, at least once, but preferably twice. This gives you an opportunity to re-think your argument in response to unanticipated questions by your moot panel.Give both parties’ briefs to each of the moot judges to read prior to the moot sessions. Schedule the first session about a week before oral argument. Then, re-group and work on your oral argument and have a second moot session a couple of days before the oral argument. If possible, have at least one attorney serving as a moot judge who is familiar with the substantive area of law. Also have at least one attorney serving as a moot judge who is unfamiliar with the substantive area of law.

7

c. Practice before a mirror and/or on video

It is very helpful to break bad habits and cultivate good habits by practicing on your feet, at a podium before a mirror or on video. There is nothing like observing one’s own facial tic or wry smile at the wrong moment to motivate one to drop that sort of mannerism before oral argument.

2. Purpose and tone of oral argument

Oral argument is a chance to respond to the judges’ questions about your case before they vote and write their opinion. You should be prepared to answer any potential questions about your case. Oral argument builds on extensive preparation by counsel. Do not read or memorize a presentation to the Court. However, prepare to 1) make a presentation in the event you receive no questions from the panel; and, 2) know how to answer questions, but still be able to steer the discussion back to your main points if you get many questions from the Court. Use a normal tone of voice and talk to the judges about the case. Be respectful. Articulate clearly. Speak loudly enough to be heard and slowly enough to be understood. As in any setting, if you do not know the answer to a question, say so, but offer to do further research to answer the question for the judge in a supplemental memorandum to be filed after oral argument.

3. Master your case

a. Master the record and transcript

Read and re-read the record and tab important documents in the record. It is critical to know what is contained in the documents—usually many of the facts at the heart of your case. Read and re-read the transcript of the proceeding in the court below. It is also critical to know intimately what transpired in the proceeding that is the subject of your appeal.

b. Master the judicial opinions and statutes

Several times, read, re-read, and highlight copies of both briefs and of statutes, regulations, rules, and judicial opinions cited in both briefs. As you read and study, make a list of questions and follow-up work. Mark clean copies of important statutes, other authorities, and opinions and take them with you to Court. Beginning a few weeks before you argue, Shepardize the statutes and opinions once a week, and again the day before you argue. If there are changes, submit a memorandum of additional authority pursuant to Rule 28(g). When possible, file the memorandum at least a few days before argument so the judges have the opportunity to review the materials. At oral argument, counsel may not refer to any authorities not cited in the briefs or in a memorandum of additional authority. See App. Rule 28(g).

c. Master opposing counsel’s arguments

Again, several times, read, re-read and highlight your opponent’s brief. Note any arguments with potential merit and prepare your responses. Note any weaknesses in your argument and know how to address them; and note any weaknesses in your opponent’s arguments and prepare your responses to them. Re-read the authorities in support of your

8

opponent’s arguments and be prepared to distinguish them, if possible. It is best to do this hard work now so that you are well prepared when you are on your feet at oral argument.

d. Prepare a very short recitation of the facts

Choose key facts and prepare a short recitation of the facts.

e. Prepare an argument outline

Prepare an outline of the major issues and best legal and policy arguments. One method is to put the most important issues first, followed by issues of lesser importance in descending order. Keep condensing the outline until it is two to three pages long. Type the outline in all capital letters. One approach is to highlight key words first in yellow, then in other colors until the most important words are most highlighted. Finally, use your pen to make final comments, etc. When you begin practicing your oral argument, use your outline. After finishing your practice sessions, make needed revisions to the outline.

f. Develop a theme or theory of the case

Many advocates have found that the theme or theory of the case can best be developed in explanation of the case to non-attorney friends. The theory is based on the idea that ruling in favor of your client’s position is the just thing to do. In one or two sentences, explain why the Court should rule in favor of your client. Keep this theory in mind as you prepare and argue your case.

4. At the Lectern

a. Opening

Greet the Court. Write down your opening lines, “May it please the Court,” “Chief Judge (if he or she is on the panel) and Judges of the North Carolina Court of Appeals,” “I am (and write your name), and I represent (name of client).” If you are appellant, you should reserve time for rebuttal. The advocate should have an outline of what he or she intends to say if the Court allows him or her to give a brief opening without interruptions to ask questions.

b. The argument

Relax, be yourself and keep eye contact with all the judges. Although your purpose is to engage in dialogue with the Court, your style should remain dignified. If necessary, adjust the microphone. Project your voice, speak into the microphone, and enunciate so that all the judges can hear you. It is important to speak with conviction.

If it seems you have won your point, do not continue to argue it. When referring to a judicial opinion, to keep the flow of your argument, do not routinely give the citation to the Court. Do not refer to facts or materials outside the record. You may use exhibits entered into evidence at the trial court. However, use exhibits only when they will make a critical point that cannot be otherwise made. Be extremely cautious about using any kind of humor or informality in addressing the Court. The Court expects advocates to exhibit a serious and respectful

9

demeanor. When the judges use humor, respond briefly in acknowledgment and appreciation of the humor and move on.

c. Answering questions

Listen very carefully to the Court’s questions. Ask for repetition or clarification if you cannot hear or understand. Respond to each of the questions or comments in a respectful tone of voice. Never interrupt the Court. So long as you are fully prepared, you will naturally cover your major points in answering the Court’s questions. The best approach is to remain flexible and open to answer questions in any order given. In response to a question, it is unwise to say, “I’ll address that point later” since the question contains what the judge is most concerned about. The Court may ask questions hypothesizing that the facts are slightly different in some respect, and asking whether the proposed rule would still apply. Do not answer these hypothetical questions solely by stating, “That is not this case.” In responding to these questions, emphasize your strong points and themes. Counsel should not try to avoid answering questions.

d. Conclusion

As in all good courtroom practice, request that the Court rule in your client’s favor and tell the Court specifically how you would like the Court to rule. Reiterate for the Court the one or two strongest arguments. Thank the Court.

5. Checklists (Adapted from Supreme Court and Appellate Advocacy, David C. Frederick, Thomson West (2009))

a. Basic chronology of preparation

--Review Briefs --Review Records --Review Judicial Opinions, Statutes, Rules, Regulations Cited in Briefs --Draft List of Potential Questions --Draft Opening --Prepare Argument by Issue or/Section of Brief --Research and Prepare Answers to Potential Questions --Conduct Moot Courts --Revise Argument/Answers --Tab Record Materials and Briefs for Quick Reference --Make List of Key Affirmative Points --Develop Segues --Prepare Argument Notebook --Memorize Opening --Review Argument Notebook--Judicial opinions, rules, regulations --Review Briefs

b. Items to Prepare

--Key Portions of Record on Appeal --Key Precedents

10

--Affirmative Points --Responsive Points to Opponent’s Arguments --Statutory Text --Legislative History --Applicable Rules of Procedure --Policy Rationale for Rule Being Advocated --Legal and Factual Analogies Raised by Issue Presented --Opening--Closing

c. Items in Argument Notebook

--Opening--Affirmative Points --Responsive Points to Opponent’s Arguments --Key Statutes, Rules, Regulations --Brief Chronology of Facts and Proceedings --Summaries of Judicial Opinions --Questions and Answers --Key Judicial Opinion or Opinions

d. Items to take to Court

--Time-keeping device --Argument Notebook --Briefs --Binder of Judicial Opinions --Record on Appeal--Pertinent Statutes --Pertinent Rules and Regulations --Pens --Pad of paper --Post-its or Tabs --Throat lozenges --Glasses --Contact lenses, case, and solution --Tissues --Highlighter--Comb or hairbrush

Sources and Resources:

A Practitioner’s Guide to Appellate Advocacy, Anne Marie Lofaso, Editor, American Bar Association, 2010, See Chapter 15, “Oral Argument,” by Lawrence D. Rosenberg, partner, Jones Day, Washington, DC. (excellent essay)

11

Appellate Practice in the U.S., Second Ed., Robert L. Stern, Bureau of National Affairs, Bureau of National Affairs, 1989, See Chapters 13-15: 13-“Before the Argument”; 14- “Preparation for Argument”; 15- “The Contents of the Argument.”

Art of Advocacy: Appeals, Houts, Rogosheske, Matthew Bender, 2009, See Chapters 40-42: 40-“The Tragic Passing of Oral Argument”; 41-“A Few Tips on Public Speaking”; 42-“Do’s and Don’ts for Oral Argument—contains good chart of suggestions.” (notebook with updates)

How to Handle an Appeal, 4th Ed., Herbert Monte Levy, Practicing Law Institute, New York, 2009, See Chapter 9: “Oral Argument,” (notebook with updates).

Making Your Case: The Art of Persuading Judges, Antonin Scalia and Bryan Garner, Thomson/West, 2008.

Mastering Appellate Practice in North Carolina, Continuing Legal Education, North Carolina Bar Foundation, 2007. See Chapter IV, “Keys to Succeeding at Oral Argument,” James G. Exum, Smith Moore, Greensboro, North Carolina.

North Carolina Appeals Deskbook, Gordon Widenhouse, Jr., Ed., Lexis Nexis, 2008.

Supreme Court and Appellate Advocacy, David C. Frederick, Thomson West, 2009.

Winning An Appeal, 4th Ed., Myron Moskovitz, Matthew Bender, 2007, See Chapter 5, “Oral Argument.” (excellent slim volume of practical advice)

Maps: Court and Parking

http://www.godowntownraleigh.com/get-around/parking

http://www.visitraleigh.com/pdf/Downtown_map_printable.pdf

http://www.raleighconvention.com/raleigh-downtown-city-map.php

http://www.godowntownraleigh.com/go/state-court-of-appeals

* * * * * Disclaimer

North Carolina Bar Association publications are intended to provide current and accurate information and are designed to assist in maintaining professional competence.

Publications are distributed with the understanding that the North Carolina Bar Association does not render any legal, accounting or other professional services. The contributing authors to this publication have exerted their best professional skills to assure the accuracy of its contents. All original sources of authority presented by this publication should be independently researched in dealing with any client’s or your own specific legal matters.

12

© 2014 by the North Carolina Bar Association, Inc. ALL RIGHTS RESERVED. Permission is hereby granted for the copying of pages or portions of pages of this book by or under the direction of licensed attorneys for use in the practice of law. No other use is permitted without the express written consent of the North Carolina Bar Association.

ATTACHMENT V

1

Disclaimer This Comparison Chart was not created by, and has not been adopted by, any of the appellate courts discussed herein. This Comparison Chart has no binding or precedential value.

A Comparison Chart: Oral Arguments Before The North Carolina Court Of Appeals,

The Supreme Court Of North Carolina, And The United States Court Of Appeals For The Fourth Circuit

Prepared and Distributed by: The Appellate Rules Committee of the North Carolina Bar Association © 2014 North Carolina Bar Association. All rights reserved.

Latest Revision Date: 31 January 2014

The Committee appreciates the advice and comments of those who use the comparison chart. Please send your suggestions to the Appellate Rules Committee, NC Bar Association, P.O. Box 3688, Cary NC 27519 or to kcrouch@ncbar.org.

2

Statement of Purpose

The North Carolina Bar Association’s Appellate Rules Committee prepared this comparison chart to assist North Carolina practitioners in preparing for oral arguments. This chart is intended to provide an abbreviated reference guide for counsel already familiar generally with oral arguments before the various courts. The chart sets forth some key similarities and differences between oral arguments before the three appellate courts in which North Carolina practitioners most often appear. For more detailed information for each court, please refer to the state (www.aoc.state.nc.us/www/public/html/rules.htm) and federal (www.ca4.uscourts.gov/pdf/RULES.pdf) rules of appellate procedure, the two “Guides for Counsel” for cases orally argued before North Carolina’s appellate courts (www.ncbar.org/about/committees/appellate-rules-committee.aspx), and the Fourth Circuit’s Pre-argument Review, Calendaring & Oral Argument information sheet (www.ca4.uscourts.gov/pdf/preargumentreviewcalendaringargument.pdf). Also, be advised that in some instances, the Comparison Chart contains information and recommendations based on the opinions and experiences of the various Committee members, rather than any formal rule or policy of the appellate courts.

NC Court of Appeals

Supreme Court of North Carolina

Fourth Circuit

Where Is The CourthouseLocated?

*Please read the oral argument notice carefully. The courts may occasionallyhold oral argument in differentbuildings (or even different cities)

One West Morgan Street DowntownRaleigh *

(Looking south down Fayetteville Street and away from the State Capitol, the Court of Appeals is located on the right-hand side of Fayetteville Street)

Court of Appeals Clerk’s Office: (919) 831-3600.

Two East Morgan Street DowntownRaleigh*

(Looking south down Fayetteville Street and away from the State Capitol, the Supreme Court Building is located on the left-hand side of Fayetteville Street)

Supreme Court Clerk’s Office: (919) 831-5700

1000 East Main Street Downtown Richmond *(Between 10th and Main Street).

Attorney’s entrance is located on Main Street.

Fourth Circuit Clerk’s Office:(804) 916-2700

3

NC Court of Appeals

Supreme Court of North Carolina

Fourth Circuit

When Does the Court TypicallyHold Oral Arguments?

The Court of Appeals holds oral arguments year-round except from early June to approximately mid-August.

Morning sessions generally begin at 9:30 a.m. and afternoon sessions generally begin at 1:00 p.m.

The Supreme Court usually holds oral arguments from January to May and September to December.

Argument sessions at the Supreme Court usually begin at 9:30 a.m.

The Fourth Circuit holds six regular weekly oral argument sessions per year, generally Tuesday through Friday, but sometimes Monday through Friday. The Fourth Circuit also occasionally adds additional oral argument dates to its regular calendar.

Arguments usually begin at either 9:30 (most days), 8:30 a.m. (last day of the session), or 9:00 a.m. (en bancarguments).

An oral argument session calendar for the current and upcoming term can be located on the Fourth Circuit’s websitehttp://www.ca4.uscourts.gov/argCal.htm

How Will I Know Whether My Case Has Been Selected For Oral Argument?

The Clerk of the Court will email a CourtCalendar/Rule 30(f) notice. Read the notice carefully, as it may state that you are to appear for oral argument, or it may state that your case will be “heard” or “decided” on a specified date, but you should not appear for oral argument.

The Supreme Court of North Carolina generally hears oral argument in all cases either selected for discretionary review or appealed as of right.

If your case is not selected for oral argument, you will receive a Rule 34 pre-argument review notice stating that the case has been referred to the panel for disposition without oral argument. Sometimes the opinion will issue a few days after the Rule 34 notice.

If your case is selected for oral argument, you will receive a “Case Tentatively Calendared For Oral Argument” Notice.

If two or more of your cases are noticed for oral argument during the same session, inform the Clerk when you return your scheduling conflict form if you prefer to have your cases heard on consecutive days or with a break between.

4

NC Court of Appeals

Supreme Court of North Carolina

Fourth Circuit

How Far In Advance Will I Generally Know When I Will Have To Appear For OralArgument?

Approximately 21 to 30 days.

Approximately 30 days, and sometimes less.

Generally, at least 6 weeks in advance of a date certain. However, counsel generally has an idea regarding what week oral argument will occur at least 2 months in advance.

At least two months before oral argument, the Fourth Circuit will issue a “Case Tentatively Calendared For Oral Argument” notice. The notice will state during which week-long court session the Court tentatively plans to hold oral argument in your case. Counsel then will have 14 days to notify the Clerk’s office of any scheduling conflicts before the Court selects a final oral argument date.

How Many Judges Will Be On My Panel/theCourt?

3 (the court does not sit en banc)

7 Panel- 3

En banc-All active, non-senior Fourth Circuit judges. There are currently 15 potential seats for active judges, but seats can be vacant. Check the Fourth Circuit’s website for a current list of active judges. Also, if a senior Fourth Circuit judge was on your initial three-judge panel, that judge will also participate in the en banc court proceedings.

Will I Know The Identity Of My Panel Before Oral Argument Day?

Yes, the panel’s identity is disclosed upon notification that oral argument will be held in your case. However, last minute substitutions of panel members are possible.

Yes. The entire court sits for oral argument, unless a justice recuses.

The identity of the argument panel is not disclosed until the morning of argument. A bulletin board located outside of the attorney check-in room lists the judges on each panel.

Also, do not be surprised if your panel has a visiting judge from a federal district court, another appellate circuit, or even a retired Supreme Court justice.

Do I Have To Inform The Court Prior To Oral Argument Who Will Be Arguing The Case?

No. Yes. Counsel must send the clerk a letteracknowledgingreceipt of the oral argumentnotification and stating who will be orally arguing the case.

Yes. After the final oral argument date is selected, Counsel must return an “Oral Argument Acknowledgement Form.” That form will state who will argue the case (and in criminal cases,which counsel will be present at oral argument, but not arguing).

5

NC Court of Appeals

Supreme Court of North Carolina

Fourth Circuit

Any Special AdvanceRequirements To Orally Argue My Case?

Counsel must have personally signed the brief. The brief can be signed at the Clerk’s office the day of, but prior to, the oral argument.However, a brief electronically filed is considered personally signed.

Counsel must have personally signed the brief. The brief can be signed at the Clerk’s office the day of, but prior to, the oral argument.However, a brief electronically filed is considered personally signed.

Counsel must be admitted to practice before the Fourth Circuit and have returned the Oral Argument Acknowledgement Form informing the court who will be arguing the case. It is very difficult to meet these requirements the morning of oral argument.

What Must I Bring To Gain Entry To The Courthouse?

A government issued photo identification is required for entry into the courthouse.

A government issued photo identification is required for entry into the courthouse.

A government issued photo identification is required for entry into the courthouse.

In Addition To PotentialWeapons(IncludingPocketknives And Pepper Spray), What Items Am I ProhibitedFrom Bringing Into The Courthouse?

No beverages or food. No cameras, unless preapproved by the Chief Judge.

No beverages or food. No cameras or tape recorders, unless preapproved by the Chief Justice.

Umbrellas left at the security desk.

Cameras, tape recorders, food, and beverages may not be brought into the courthouse.

Cell phones, smart phones, tablets, Blackberrys, pagers, laptops, notebooks, netbooks, or similar functioning devices must be turned off when in a courtroom or judicial chambers and must not be used to take photographs or for audio or video recording.

Umbrellas must be left at the entrance to the building.

What Is The Check-InProcedure The Morning Of OralArgument?

Arrive in the courtroom before oral argument begins.

There is a library adjacent to the rear courtroom door that attorneys can use to collect themselves both before and after the argument.

Arrive in the courtroom before oral argument begins.

There is a connectedattorneys’ room through the back of the courtroom that attorneys can use to collect themselves both before and after the argument.

Counsel must register for oral argument in Room 222 in the Richmond courthouse between 8:45 and 9:00 a.m. for arguments beginning at 9:30 a.m. and between 7:45 and 8:00 a.m. for arguments beginning at 8:30 a.m. (generally on the last day of the Court session).

Multiple counsel arguing on the same side must check in together and notify the court of the order in which they will argue and how the allotted time will be divided among them.

6

NC Court of Appeals

Supreme Court of North Carolina

Fourth Circuit

In How Many Courtrooms Are Oral Arguments Held At Any Given Time?

There is one courtroom at the Court of Appeals, which is located on the 3rd floor.

However, the Court of Appeals occasionally holds special oral argument sessions in courtrooms in other counties, as well as in North Carolina’s law schools.

There is one courtroom at the Supreme Court, which is located on the 3rd floor.

The Court generally uses the four courtrooms located on the 2nd and 4th

floors of the courthouse. (The courtrooms are named Tan, Tweed, Green, and Red based on the color of the carpet in each courtroom.) The Fourth Circuit also now uses two Courtrooms on the 3rd Floor (Spencer and Payne courtrooms).

The Green courtroom is the en banccourtroom.

How Much Time Is Allotted For Oral Argument Per Side?

30 minutes per side (all parties to a side must share the time allotted for oral argument)

30 minutes per side (all parties to a side must share the time allotted for oral argument)

Most Cases–Each side is allotted 20 minutes (All parties to a side must share the time allotted for oral argument).

Social Security Disability Cases, black lung cases, and labor cases where the primary issue is whether the agency’s decision is supported by substantial evidence–Each side is allotted 15 minutes.

Criminal Cases where the primary issue is the application of sentencing guidelines–Each side is allotted 15 minutes.

En Banc–Each Side is Allotted 30 minutes

Can Parties On The Same Side Represented By DifferentCounsel Split Oral Argument Time?

Yes Yes Yes, but disfavored. Local Rule 34(d) recommends that no more than two attorneys argue per side.

7

NC Court of Appeals

Supreme Court of North Carolina

Fourth Circuit

At Which Counsel Table Do I Sit During OralArgument?

When facing the bench, appellant’s counsel sits at theright-hand table and appellee’s counsel sits at the left-hand table.

Counsel for the first case should be seated at counsel table when court convenes. After any midday or midmorning break, counsel for the next case should already be seated at counsel table when the court returns.

When facing the bench, appellant’s counsel sits at theright-hand table and appellee’s counsel sits at the left-hand table.

Counsel for the first case should be seated at counsel table when court convenes. After any midday or midmorning break, counsel for the next case should already be seated at counsel table when the court returns.

Attorneys may sit at either counsel table, and counsel for the first case should be seated at counsel table when court convenes. After any midmorning break, counsel for the next case should already be seated at counsel table when the court returns.

Can I Use My Laptop at Counsel Table?

Yes, as long as the sound is turned off. The Court of Appeals has the capacity to make PowerPoint and “ELMO”presentations.

Not currently. No. You may bring a laptop into the courthouse, but it must be turned off while in the courtroom.

What Size Papers Will Fit On The Oral ArgumentPodium?

Legal size papers (if in the Raleigh courtroom).

Legal size papers, but space is limited on the lectern. The lights and microphone may interfere with placement of an opened notebook or other items on the lectern.

Podiums normally accommodate legal size papers.

When Can I Approach The Podium And When May I Begin My Argument?

After the judges have entered the courtroom and been announced, the attorney who is arguing first may approach the podium but should not speak until the presiding judge calls the case.

After the justices have entered the courtroom and been announced, the attorney who is arguing first may approach the lectern when the Chief Justice calls the case.

Appellant’s counsel should be seated and ready to go, but should not approach the podium until the presiding judge calls his case.

Also, counsel for the next case should not proceed to counsel table until after the panel concludes its greeting of prior arguing counsel. The Court will wait for counsel to be seated for the next argument before it calls the next case.

How Do I Start My Oral Argument?

“May it please the Court.”

“May it please the Court.”

“May it please the Court.”

8

NC Court of Appeals

Supreme Court of North Carolina

Fourth Circuit

How Do I Address The Members Of The Panel or Court?

Judge “X” or Your Honor * if on your panel, Chief Judge “X”

Justice “X” or Your Honor * Justice sitting in the center seat is Chief Justice “X”

Judge “X” or Your Honor *if on your panel, Chief Judge “X”

Tip: The bench now has name plates before each judge’s seat.

As The Appellant,Should I First Summarize The Facts for the Court?

The Court of Appeals encourages counsel to provide only a very briefsummary of facts and only to the extent necessary to facilitate the Court’sunderstanding of the issues.

The Supreme Court usually leaves the decision up to counsel, but counsel should keep the summary brief.

Local Rule 34(d) states that “members of the Court hearing oral argument will have read the briefs before the hearing and therefore will be familiar with the case.”

Therefore, counsel for the appellant ordinarily should not recite the facts of the case at the beginning of the argument.

If I Am The Appellant, How Do I Reserve Oral Argument Time For Rebuttal?

Counsel should tell the senior panel judge at the beginning of oral argument how much time he/she wishes to reserve for rebuttal.

Although the practice can vary by panel, there is no formal limit to the amount of time reserved for rebuttal. However, most judges prefer the parties not request more than 10 minutes for rebuttal. If appellant exceeds his/her opening argument time, then his/her rebuttal time will be reduced accordingly.

Time designated for opening argument but not used can sometimes be added to the reserved rebuttal time if permitted by the Court.

Counsel should tell the Chief Justice at the beginning of oral argument how much time he/she wishes to reserve for rebuttal.

If appellant exceeds his/her opening argument time, then his/her rebuttal time will be reduced accordingly.

When registering for argument the morning of oral argument, counsel for appellants and cross-appellants may reserve up to one-third of their total time for rebuttal by telling the clerk how much time he/she wants to reserve.

Time designated for opening argument but not used at opening cannot be added to the reserved rebuttal time.

9

NC Court of Appeals

Supreme Court of North Carolina

Fourth Circuit

How Will I Know How Much Time I HaveRemainingDuring Oral Argument

A timer on the lectern will start at 30:00 and alert counsel to the total time remaining, including any rebuttal time.Appellant’s counsel must keep track of when counsel is into rebuttal time. When five minutes of total argument time remain, the green signal goes off and the yellow signal comes on. The red signal comes on when the attorney’s oral argument time has ended.

A timer on the lectern will start at 30:00 and alert counsel to the total time remaining, including any rebuttal time.Appellant’s counsel must keep track of when counsel is into rebuttal time. When five minutes of total argument time remain, the green signal goes off and the yellow signal comes on. The red signal comes on when the attorney’s oral argument time has ended.

The oral argument podiums have a three-light (green, yellow, and red) and digital timing system that counsel can use to monitor their argument times. The green light comes on when oral argument begins, and a digital clock counts down the argument time remaining.

When 5 minutes of argument time remain on the timer, the green signal goes off and the yellow signal comes on. The red signal comes on when the attorney’s argument time has ended.

At the beginning of appellant’s argument, the digital clock reflects a deduction of any rebuttal time reserved by the appellant. For example, if appellant’s counsel has 20 minutes of total oral argument time and reserves 2 minutes of that time for rebuttal, the digital timer will start at 18 minutes for appellant’s initial argument and the yellow light will come on 13 minutes into the argument. During rebuttal time, the digital clock will start with appellant’s reserved rebuttal time. In our example, the rebuttal timer would start at 2 minutes, and because the appellant started with 5 minutes or less of time, the yellow light would come on when the rebuttal began.

What Cases And Other Authorities Can I Cite And Discuss During OralArgument?

Only cases or authorities cited in one of the parties or amicus’ briefs or in a Rule 28(g) memorandum of additionalauthority.

Counsel should endeavor to submit, and insure that opposing counsel actually receives, any memorandum of additional authority prior to the day of oral argument.

Only cases or authorities cited in one of the parties or amicus’ briefs or in a Rule 28(g) memorandum of additional authority.

Counsel should endeavor to submit, and insure that opposing counsel actually receives, any memorandum of additional authority prior to the day of oral argument.

No restrictions. However, if pertinent and significant authorities are discovered after submission of the briefs, as a courtesy to both the Court and opposing counsel, counsel should submit a Rule 28(j) letter of supplemental authorities prior to oral argument.

10

NC Court of Appeals

Supreme Court of North Carolina

Fourth Circuit

What Do I Do When Oral Argument Has Concluded?

Either quietly exit the courtroom through the rear side door or return to the public seating benches.

There is a library adjacent to the rear courtroom door that attorneys can use to collect themselves both before and after oral argument.

Either quietly exit the courtroom through the rear door or return to the public seating benches.

There is a connected attorney room at the back of the courtroom that attorneys can use to collect themselves both before and after oral argument.

Wait for the Fourth Circuit judges to come down from the bench to greet counsel and shake their hands. Then while judges are returning to the bench, either quietly exit the courtroom or return to the public benches behind the oral argument bar.

“I used to say that, as Solicitor General, I made three arguments of every case. First came the one that I planned—as I thought, logical, coherent, complete. Second was the one actually presented--interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.”

Resolutions in Memoriam: Mr. Justice Jackson, 99 L. Ed. 1311, 1318 (1955).