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Appellate Law

North Carolina Appellate Blog

Highlights developments in the appellate courts that affect business interests in North Carolina.
By Sean E. Andrussier

Post Frequency: 5.9/day

Last Entry: March 19, 2016 at 15:47:00

NC Supreme Court DIGs Lending Case

Posted on March 10, 2008
On Friday the NC Supreme Court dismissed as improvidently granted the petition for discretionary review (PDR) in Richardson v. Bank of America. Many issues were decided by the Court of Appeals (COA) in that case (its opinion is here), but the primary issue raised in the PDR concerned the COA's holding that plaintiff had a valid claim for breach of the covenant of good faith and fair dealing (see part III of the COA's opinion)...

NC Supreme Court PDR Orders

Posted on March 10, 2008
On Friday the Supreme Court granted discretionary review in a few cases. One involves a Court of Appeals (COA) decision which upheld a common law claim for obstruction of justice based on a hospital's failure to maintain x-rays, even though no lawsuit was pending and or threatened against the hospital...

NC Supreme Court Decisions

Posted on March 08, 2008
Yesterday the NC Supreme Court issued orders and opinions, including a blockbuster opinion on appellate rule violations. More on these cases later.

NC Supreme Court Clarifies Standard For Dismissing Appeals

Posted on March 08, 2008
Yesterday, in Dogwood Dev. & Mgt. Co. v. White Oak Transport Co., the NC Supreme Court took a major step to sort out the confusion caused by a number of Court of Appeals (COA) decisions in recent years that dismissed appeals for non-jurisdictional appellate rule violations...

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Appealing From The Banking Commission? If So, All You Need: Notice Of Appeal, Within 20, To Commissioner

Posted on March 04, 2008
In In re Advance America, the NC COA held that N.C. Gen. Stat. sec. 53-92(d) -- the statute that, among other things, tells parties before the Banking Commission how to appeal -- was unambiguous, must be given its plain meaning, and requires appeal only by written notice to the Commissioner of Banks within 20 days and nothing more...

NC COA Decisions Today

Posted on March 04, 2008
Today the NC Court of Appeals (COA) released 23 published opinions (two of which arise from the same case). Five are in criminal cases, and another relates to a prisoner seeking parol. There are only two dissents. More on these cases later.We note that today's unpublished decisions from the COA include a number of cases involving appellate rule violations -- e...

Fourth Circuit Rejects 1983 Claim

Posted on March 04, 2008
Today, in Mora v. City of Gaithersburg, the Fourth Circuit, in an opinion by Judge Wilkinson, rejected a Section 1983 claim brought by a man who sued over searches of his property and seizures of numerous weapons he owned. Plaintiff, a firefighter, was a licensed firearms gun collector...

COA Upholds Discovery Orders

Posted on March 04, 2008
Today, in a negligence action, the Court of Appeals (COA) upheld discovery orders compelling product. The case is Fulmore v. Howell.First, the trial court granted plaintiff's motion to compel discovery of defendant's social security number. Defendant argued that compelled disclosure violated the Federal Privacy Act of 1974...

COA Excuses Appellant's Failure To Include In Record A Notice Of Arrangement For Transcript

Posted on March 04, 2008
In a published case today, the appellant failed to include in the record on appeal a copy of a notice of arrangement for the transcript, as required by the appellate rules. The appellees pointed this out in their brief, contending the transcript wasn't delivered until 124 days after the notice was filed...

COA Rejects Insured's Effort To Circumvent $5,000 Cap In Insurer's Mold Endorsement And Bounces Chapter 75 Claim Based On Mold Exacerbation

Posted on March 04, 2008
Today the Court of Appeals (COA) enforced an insurer's $5,000 cap on mold damages in a case brought by a residential homeowner. The case is Burrell v. Sparkkles Reconstruction Co. Judge Wynn wrote the majority decision, joined by Judges Steelman and Geer...

COA Holds That Plaintiff Need Not Move For Entry Of Default Before Moving For Default Judgment

Posted on March 04, 2008
Today in Ruiz v. Mecklenburg Utilities, Inc. the Court of Appeals (COA) affirmed a default judgment even though the plaintiff didn't first move for entry of default under Rule 55(a); instead the plaintiff moved straight for a default judgment under Rule 55(b), which the trial court granted even though no entry of default preceded it...

COA Reverses Res Judicata Ruling

Posted on March 04, 2008
Today, in a product liability action, the Court of Appeals (COA) held that the trial court erred in dismissing claims based on res judicata. The case is Skeen v. Warren & Sweat Mfg. The decision is unpublished. Judge Jackson concurred in the result only...

NC SCT Petitions, And Perhaps Opinions, Next Week

Posted on February 28, 2008
The NC SCT is expected to file decisions on petitions, and perhaps opinions, next week.

SCOTUS Overturns 4th Circuit, Holds Employees May Sue 401(k) Managers For Mismanagement And Injuries To Individuals' Accoutns

Posted on February 24, 2008
Last week, with LaRue v. DeWolff, Boberg & Associates, Inc., SCOTUS overturned the 4th Circuit and held that ERISA authorizes retirement account holders such as the plaintiff in that case to sue for and recover losses when retirement plan managers breach their fiduciary duties, adversely affecting individuals' accounts...

COA Speaks to Political Speech Protections

Posted on February 20, 2008
As the '08 political season ramps up, the NC COA reminded us yesterday, in Craven v. Cope, that unkind political mailings that are hyperbole or opinion and can't be mistaken for factual assertions won't constitute defamation -- but that all political speech is not necessarily protected...

COA Holds Internal Affairs Not Jurisdictional, Etc. In Corporate Potpourri Case

Posted on February 20, 2008
In Bluebird Corp. v. Aubin, the COA addressed a potpourri of corporate, evidentiary and procedural issues.Bluebird was a commercial real estate investment corp. owned by 2 shareholders, Susi and Aubin. Susi was the $$ shareholder, and Aubin the day-to-day manager and marketer shareholder...

HOAs May Assess $$ Penalties Against Errant Owners

Posted on February 20, 2008
The NC COA made clear yesterday in Riverpointe Homeowners Ass'n v. Mallory that home owner associations may impose monetary fines on errant home owners, even where the home owner association documents and declarations don't expressly allow for such fines...

COA Decisions Today

Posted on February 19, 2008
The NC Court of Appeals released 22 published opinions today, half criminal, half civil. There are no dissents. More on these cases later.

COA Warns Trial Judges: Don't Make Factual Findings For Summary Judgment

Posted on February 19, 2008
Today in Craddock v. Craddock the Court of Appeals (COA) reversed a summary judgment order which contained 32 findings of fact, some of which addressed issues on which evidence was conflicting. This prompted the COA to reiterate this warning from a 30-year-old case: "'[W]e feel compelled again to point out that it is not a part of the function of the court on a motion for summary judgment to make findings of fact and conclusions of law...

Raleigh Lawyer Loses Fight Over Booted Car

Posted on February 19, 2008
Today the Court of Appeals (COA) rejected a tort suit brought pro se by a Raleigh lawyer whose unathorized parking resulted in the booting of his car and a larceny prosecution against him. The case is Kirschbaum v. McLaurin Parking Co. The N&O has a story on the case here...

COA Rejects Constitutional Challenge to NC Unclaimed Property Act

Posted on February 19, 2008
Today in Rowlette v. State, the Court of Appeals (COA) rejected a "takings" challenge to the North Carolina Unclaimed Property Act (NCUPA). The case concerned interest earned on unclaimed dividends while they were in the State's custody under the NCUPA...

Fourth Circuit Rules For Employer (And Against EEOC) In Title VII Case

Posted on February 12, 2008
Yesterday in EEOC v. Firestone Fibers & Textiles Co. the Fourth Circuit, in an opinion by Judge Wilkinson, upheld summary judgment for Firestone in a Title VII dispute over whether Firestone reasonably accommodated an employee's religious beliefs...

Split COA Reinstates Punitive Damage Award In Malicious Prosecution Case

Posted on February 05, 2008
Today in Scarborough v. Dillard's Inc. the Court of Appeals (COA) reinstated a punitive damage award in a malicious prosecution case. Dillard's accused plaintiff, a former part-time employee in its shoe department, of misconduct (after he failed to charge a woman for two pair of shoes); that accusation led to a failed embezzlement prosecution against plaintiff by the district attorney, a prosecution instigated by a Dillard's loss-prevention employee who also was a full-time officer with the Charlotte-Mecklenburg Police Department...

COA: Deed Of Trust Canceled Without Authorization Enjoys Priority Over Later Deed Of Trust, Despite Later Lender's Reliance On Cancellation

Posted on February 05, 2008
Today in Household Realty Corp. v. Lambeth the Court of Appeals (COA) addressed a priority issue concerning deeds of trust. A deed of trust held by the first lender was fraudulently canceled by the unauthorized act of a third party. In reliance on that cancelation, a second lender furnished a loan and obtained a deed of trust...

COA Applies Res Judicata To Sovereign Immunity Dismissal

Posted on February 05, 2008
Today in Herring v. Winston-Salem/Forsyth County Bd. of Educ. the Court of Appeals held that, for purposes of res judicata, a dismissal on the ground of soverign immunity constitutes a final adjudication on the merits entitled preclusive effect in a subsequent action between the parties...

COA Holds That Damaged Breast Implant Draws Workers' Comp Benefits

Posted on February 05, 2008
Today in Richardson v. Maxim Healthcare/Allegis Group, a workers' comp case, the Court of Appeals held that damage to a breast implant is a compensable injury. The employee in today's case was in a car accident on the job, and it caused her breast implant to rupture...

Today's NC Court of Appeals Decisions

Posted on February 05, 2008
Today the NC Court of Appeals handed down 30 published opinions today, nine of which are criminal. The Court found error in nine cases. Five of the cases drew dissents.

Fourth Circuit Rolls Out Yet Another FLSA Case, This One Favoring Employees Alleging Retaliation

Posted on February 01, 2008
Yesterday in Darveau v. Detecon, Inc. the Fourth Circuit issued another FLSA decision, this one addressing whether a former employee can assert against his former employer a "retaliation" claim under the FLSA, even though the allegedly retaliatory act (a lawsuit against the employee) occurred after his employment terminated, and thus had no materially adverse effect on his employment (e...

Fourth Circuit Lets NC's Nuisance Suit Against TVA Go Forward

Posted on February 01, 2008
Yesterday in State of N.C. v. Tennessee Valley Authority the Fourth Circuit rejected TVA's sovereign immunity defense, thereby allowing NC's nuisance suit to go forward.TVA operates coal-fired plants in Tennessee, Alabama, and Kentucky. NC brought this common-law nuisance action against TVA, contending that the plants emit pollutants which travel downwind through the atmosphere into NC's airspace, where they adversely affect human health and the environment...

COA 40th Anniversary Celebration

Posted on January 31, 2008
The NC Court of Appeals just held its 40th Anniversary Celebration. Governor Easley and Chief Justice Parker spoke. In addition to all sitting Court of Appeals judges, in attendance were the Supeme Court Justices, several former Chief Justices (including our own Burley Mitchell), and many former judges from the Court of Appeals and Supreme Court who have served over the past several decades.

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