Posts

Key Changes to NC Rules of Appellate Procedure

By Laura Graham

On Jan. 1, 2017, a comprehensive revision of the North Carolina Rules of Appellate Procedure took effect. The revised Rules apply to all cases appealed on or after Jan. 1. The revised Rules include some brand new provisions, and they also incorporate several changes that had been in effect for some time pursuant to stand-alone orders of the North Carolina Supreme Court.[1]  The revised Rules are available here: http://www.aoc.state.nc.us/www/public/html/pdf/therules.pdf.

No doubt, attorneys who regularly handle appeals have already scoured the revised Rules for brand new changes. But for the benefit of the rest of us, I’ve chosen to highlight five provisions in the revised Rules; the first three are new changes, and the other two are codifications of prior stand-alone changes.

Read more

N.C. Court Of Appeals On Brink Of Slippery Non-Compete Slope

,

Wall,JonBy Jonathan Wall

In Beverage Sys., LLC v. Associated Beverage Repair, LLC, 368 N.C. 693, 784 S.E.2d 457 (2016), the North Carolina Supreme Court clarified that North Carolina adheres to the “strict blue pencil rule;” that is, a trial court may strike distinct unreasonable restrictions in a noncompetition agreement but may not re-write provisions in order to make them enforceable, even if the parties, in the contract, authorize judicial revisions.  The court sent a message it is not interested in expanding blue-penciling, noting no good could come from changing the role of the trial court:

Allowing litigants to assign to the court their drafting duties as parties to a contract would put the court in the role of scrivener, making judges postulate new terms that the court hopes the parties would have agreed to be reasonable at the time the covenant was executed or would find reasonable after the court rewrote the limitation. We see nothing but mischief in allowing such a procedure.

Read more

Quicksands and Cutting Edges Of the Law: Do Municipal Utility Customers Possess Due Process and Vested Rights To Continued Sewerage Service?

Note from Jon Mize, NCBA Government & Public Sector Section blog editor: Below please find an article from John C. Cooke examining the implications of a recent North Carolina Court of Appeals case on due process and the vested interest rights applicable to public enterprise customers. The article is shared from the North Carolina Land Use Litigator information initiative (https://nclanduse.blogspot.com/ ) published by Mr. Cooke and Michael C. Thelen.  

john-c-cooke-1By John C. Cooke

Introduction

Sometimes, I read a court’s opinion and put it aside because it is thought provoking beyond its facts and outcome.  The case of United States Cold Storage, Inc. v. Town of Warsaw, __ N.C. App. ___, 784 S.E. 2d 575 (April 5, 2016) falls into this category.

Background

United States Cold Storage is interesting from several angles, but this post explores only one – the possibility that governmental utility customers possess due process and common law vested rights to continued utility service.

The facts were simple.  United States Cold Storage (USCS) owned a facility located outside the corporate limits of the Town of Warsaw (Town).  Through a contract with a county government, USCS secured Town sewer service and a promise that the Town would not annex the facility for seven (7) years.

Read more

Recent Court Opinions

Murray,JoeBy Joseph S. Murray IV

The U.S. Court of Appeals for the 4th Circuit and the N.C. Court of Appeals issued the following labor and employment law opinions in the past several weeks:

Adams v. State of NC, COA15-1275 (N.C. Ct. App. Aug. 2, 2016)

Hubbard v. NC State Univ., COA16-38 (N.C. Ct. App. Aug. 2, 2016)

Tully v. City of Wilmington, COA15-956 (N.C. Ct. App. Aug. 16, 2016)

RLM Communications, Inc. v. Tuschen, No. 14-2351 (4th Cir. July 28, 2016)

Amaya v. Power Design, Inc., No. 15-1691 (4th Cir. Aug. 15, 2016)

Calobrisi v. Booz Allen Hamilton, Inc., No. 15-1331 & No. 15-1399 (4th Cir. Aug. 23, 2016) (unpublished)

 

 

Waiting Game: How Long Does It Take the N.C. Court Of Appeals To Issue Opinions?

Rakes,KenzieBy Kenzie M. Rakes

I am often called upon to answer questions related to pending appeals because I recently completed a clerkship at the Court of Appeals of North Carolina. When asked how long it will take the Court of Appeals to issue an opinion, I always say it is impossible to know with certainty, but the court has an internal policy of trying to issue opinions within 90 days of the date the appeal is scheduled for argument. After being involved in an appeal as an advocate, I decided to determine how long it takes the court to issue opinions.

First, I calculated the number of days it took the Court of Appeals to issue opinions in 2015 by counting the days from the date the appeal was scheduled for argument (regardless of whether oral argument was granted) until the date the opinion was issued. Not all appeals have an argument date. For example, some opinions are issued after the Supreme Court of North Carolina remands the case or after the Court of Appeals grants a party’s petition for rehearing. If the appeal was not argued, I treated the date that the appeal was remanded or the date the petition for rehearing was granted as the argument date.

Based on this methodology, I determined that the court issued opinions an average of 77 days after argument in 2015. The median was 62 days.

Read more

Clerk of Court John Connell Retires From Court of Appeals

By Russell Rawlings

John Connell just knew he had blown the interview. He was suffering from a cold, on medication, and unusually anxious.

“I felt I rushed it.”

That was nearly 30 years ago when he interviewed for the position of assistant clerk of court at the N.C. Court of Appeals. Not only did he get the job, but seven years later when the clerk’s position became open, he landed that job too.

The affable Connell retired Nov. 1, leaving behind a legacy of service and leadership that will permeate the Court of Appeals for years to come. Always quick with a smile and a self-effacing comeback, he covers his emotions well until the conversation turns to his co-workers.

Read more