Appeals

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Appeals in North Carolina Courts; the Role of Lawyers on Appeal

John Kirby has represented numerous parties in the North Carolina Court of Appeals and other courts of appeal. Following law school, he clerked for the Chief Justice of the North Carolina Supreme Court, and in that capacity saw the appellate process from the perspective of the appellate court. He has also argued twice before the North Carolina Supreme Court. This page describes appeals courts in North Carolina.

In North Carolina, there are many contexts in which a person can “appeal” from a decision of a court (judge) or an administrative body. A criminal defendant who is found guilty in District Court can appeal to the Superior Court. A party in a small claims action can appeal to the District Court. (In fact, the case might go to non-binding arbitration after the small claims ruling, and a party can appeal from that ruling.) A person can also appeal from decisions of the North Carolina Industrial Commission (which handles tort claims against the State and handles workers compensation), and from various administrative agencies. Each of the appeals raises distinct considerations.

Oral argument at the North Carolina Court of Appeals.

Appellate law is constantly changing, by rule and by case law. For example, in May 2014, the Court of Appeals ruled that an appeal had become moot and should be dismissed. In Allen v. Kluttz, the lower court ruled that an agreement that prohibited the defendant from competing with the plaintiff for one year was valid. The defendant appealed, and during the appeal the one year period elapsed. The court of appeals ruled that the issue had become moot because the one year period had expired, and the court would not rule on the issue of whether the non-compete agreement was valid. In June 2013, our Supreme Court clarified the time frame in which to file an appeal from an adverse ruling, when there is a pending motion for attorneys fees. This case clarified a previously unresolved issue in North Carolina. In February 2014 the Court of Appeals ruled that where the clerk’s order was signed, but it was not filed, that it was not properly “entered” under Rule 58, and the time for appealing the order had not begin The Court in In re Thompson held that filing was critical to the “entry” of the order, and cited to a prior Court of Appeals case in which John Kirby represented the appellant. A list of recent appellate cases can be found on this site.

One of the more common contexts in which a party appeals is from a ruling of the District Court or Superior Court, in which case the party typically appeals to the North Carolina Court of Appeals. The appellate process is a rather complicated process that is often misunderstood. The appellate court generally reviews the decision of the lower court only for errors of law, such as an error in the admission of evidence at trial. As a general matter, the appellate court does not weigh the evidence and make an independent decision of the case on the merits. (In other countries, such as France, the appellate court has greater ability to weigh the evidence.) It is therefore often difficult to
obtain a reversal of an adverse decision at the trial level.

A party wishing to appeal a decision must be careful to “preserve” errors for appeal. The appellate court will generally review only the actions of the lower court; it generally will not review the failure of the lower court to act in the absence of a specific request, motion or objection presented to the lower court. It is therefore important at the trial level to object to inadmissible evidence, and to make appropriate motions, such as a motion for a directed verdict (where appropriate). In addition, the appealing party must comply with numerous rules to preserve the appeal, such as filing a Notice of Appeal in a timely fashion, and preparing the Record on Appeal. The failure to follow these rules can result in the loss of the right to appeal.

In North Carolina, an appeal from the trial level is to the North Carolina Court of Appeals. This appellate court hears cases on appeal by panels of three judges. Some cases have oral argument, but most do not. If one of the three judges dissents from the majority opinion, the decision can be further appealed to the North Carolina Supreme Court. Otherwise, appeal to the Supreme Court generally occurs only in cases where the Court allows a Petition for Discretionary Review, which statistically is quite rare.

Parties often also appeal from administrative decisions. For example, a licensing board (such as the Nursing Board) might deny or revoke a professional license. Similarly, an agency or board can impose sanctions. These decisions are appealed either to the Superior Court, or to the Office of Administrative Hearings.

A procedure that is related to an appeal is a motion in the trial court to modify (or set aside) a judgment. In civil cases, this is typically a motion for relief (or “motion for reconsideration”) under “Rule 60,” and in criminal cases it is typically a motion for “appropriate relief” (or “MAR”). This process is different from an appeal, but like an appeal it can result in avoiding an adverse judgment.

A lawyer can help the client work through the appellate process in North Carolina. Pursuing an appeal is very complicated, and it is very difficult for most non-lawyers to successfully get through that process. The lawyer typically files the appeal, prepares and perfects the “record on appeal,” prepares the brief, and appears for any oral argument. The lawyer can also handle more complicated matters, such as a petition for writ of “supersedeas,” and a petition for writ of certiorari.

John Kirby has worked on more than twenty cases at the appellate level. He has argued two cases before the North Carolina Supreme Court, and three cases before the North Carolina Court of Appeals. He also worked as a law clerk for the Chief Justice of the North Carolina Supreme Court from 1993-1994. He has also represented parties in administrative appeals.

The cases John Kirby has handled on appeal are listed below:

  • Peterson v. Dillman, North Carolina Court of Appeals, 782 S.E.2d 362 (N.C. App.2016)
  • Underwood v. Ordonez, North Carolina Court of Appeals, 781 S.E.2d 718 (2016)
  • E. Brooks Wilkins Family Medicine v. WakeMed, North Carolina Court of Appeals, 784 S.E.2d178 (2016)
  • GTC Services v. Region Q Workforce Investment Consortium, Fourth Circuit Court of Appeals,No. 15-1530 (2016)
  • B&A v. ARC, North Carolina Court of Appeals, NO. COA14-527 (2014)
  • Wimes v. N.C. Board Of Nursing, North Carolina Court of Appeals, 768 S.E.2d 65 (2014)
  • Manley v. Wendy’s, No. 12-1286 (4th Cir. 2012).
  • Bryant & Assoc. v. Evans, North Carolina Court of Appeals, No. COA12-732 (2012).
  • In re D.L.M., North Carolina Court of Appeals, NO. COA10-907 (2010).
  • Crawford v. Mintz, Supreme Court of North Carolina, 363 N.C. 372 (2009).
  • In re M.P.A., North Carolina Court of Appeals, NO. COA09-856 (2009).
  • M.H. v. Triangle Research Collaborative, North Carolina Court of Appeals, NO. COA08-70 (2008).
  • In re V. T., North Carolina Court of Appeals, COA06-355 (2007).
  • In re DjL, North Carolina Court of Appeals, 184 N.C. App. 76 (2007).
  • Pennsylvania National Mutual Insurance Company v. Strickland, Columbus Utilities,New South Insurance Co., North Carolina Court of Appeals, 631 S.E.2d 845 S.E.2d (2006).
  • In re N. G., North Carolina Court of Appeals, COA06-101 (2006).
  • Harleysville Mut. Ins. Co. v. Nationwide Mut. Ins. Co., Supreme Court of North Carolina, 611 S.E.2d 832 (2005).
  • Walker v. Penn Nat’l Sec. Ins. Co.,North Carolina Court of Appeals, 168 N.C. App. 555 (2005) (assisting with appellate briefs).
  • In re B.N., North Carolina Court of Appeals, COA04-531 (2005).
  • In re M.K., North Carolina Court of Appeals, COA03-1605 (2004).
  • Davis v. JMX, Supreme Court of North carolina, 352 N.C. 662 (2000).
  • Green v. Dixon, Supreme Court of North Carolina, 352 N.C. 666 (2000) (assisting with appellate briefs).
  • Dutch v. Harleysville Mut. Ins. Co., North Carolina Court of Appeals, 139 N.C. App. 602 (2000).
  • Griffin v. Griffin, North Carolina Supreme Court, 348 N.C. 278 (1998) (assisting with appellate briefs, and arguing at Court of Appeals).
  • Penn National Mut. Insurance Co. v. Strickland, North Carolina Court of Appeals , 178 N.C. App. 547 (2006) .
  • State ex rel. Long v. Petree Stockton, L.L.P., North Carolina Court of Appeals, 129 N.C. App. 432; 499 S.E.2d 790 (1998) (assisting with appellate briefs).
  • Adams v. North Carolina State Bd. of Registration for Prof’l Eng’rs & Land Surveyors,North Carolina Court of Appeals, 129 N.C. App. 292 (1998) (assisting with appellate briefs).
  • High Country Arts and Craft Guild v. Hartford Fire Insurance Company, Fourth Circuit Court of Appeals, 126 F.3d 629 (1997) (assisting with appellate briefs).
  • Robinson v. Parker, North Carolina Court of Appeals, 124 N.C. App. 164 (1996)(assisting with appellate briefs).