Substantial Right? Sure, why not.

One of the most vexing aspects of appellate law is trying to assess whether an appeal affects a substantial right.  To date, the best analysis I've heard on the topic is from a friend of mine that also happens to practice some law form time-to-time: "The Court of Appeals is going to do whatever the Court of Appeals is going to do." 

The message: Don't worry about, because there's only so much you can do anyway.  I suspect those that have tried a number of cases to a jury feel the same way about how that body will decide, too. 

In Hawkins v. Emergency Medicine Physicians of Craven County, PLLC, et. al, published today (April 7, 2015), the Court of Appeals may have given some guidance as to how it will now view the possibility of inconsistent verdicts.  The case is available here, and if you are like some of my former colleagues practicing med-mal, you may like to read the Court's proximate cause analysis as well: http://appellate.nccourts.org/opinions/# (click on 2015, and go to the April 7th decisions). 

As to our appellate issue, the trial court had granted summary judgment as to one defendant-doctor on proximate cause, but not the other defendants - a classically interlocutory order (final as to some but not all parties or claims).  The trial court likewise did not certify the claim for immediate appeal. 

In concluding that it had jurisdiction, however, the Court held that "[b]ecause plaintiff's suit alleges several overlapping acts of medical malpractice resulting in harm, we hold that it is best that one jury hears the case." 

Having one jury hear a case is likely "best" in almost all negligence actions in which there are multiple defendants involving overlapping conduct.  Whether that holding can be extended beyond the realm of medical negligence actions remains to be seen.  If you have success in so doing, and just so long as it is not against me, please let me know.

On an unrelated note, I write a grudging congratulations to my mother-in-law and Duke fans the world over for yet another National Championship.  One day, Deacs. One day. 

Appellate Litigation at its Worst

In NC State Bar v. Burford, found here, the Court reminded the parties that in order to submit issues for review, it is generally helpful to file a brief.  The opinion is found here: LINK

As Abraham Lincoln once opined, “He who represents himself has a fool for a client.”  In this appeal of an order of discipline of the Disciplinary Hearing Commission (“DHC”) of the North Carolina State Bar (“the Bar”), the petitioner, Robert J. Burford undertook the task of representing himself.  According to the Court of Appeals, “Mr. Burford, however, failed to include in his brief any substantive argument as to why there was error.”  His contentions were therefore abandoned. 

The Bar also appealed, argued that the DHC erred in certain findings of fact.  The Bar, however, did not file an appellant’s brief, but rather, “attempted to argue its contentions within its appellee’s brief."  The Bar’s contentions were therefore not properly before the Court.  

As such, the Court did not reach the merits of either appeal.  It did not stop them, however, from pointing out findings of fact related to Mr. Burford’s over-charging clients for both fees and expenses, and admonishing him for filing an appellate brief that was little more than a table of contents.  

The only person that should be happy with this appeal was the clerk tasked with writing it, as it no doubt made for short work and hopefully an early departure.  

Mess with a bull, you get the horns

The Court of Appeals recently affirmed Rule 11 sanctions against an attorney that, according to the Court, filed a motion to recuse a district court judge that was factually inaccurate.  In the case of O'Neal v. Oneal, an action for divorce, an attorney for the plaintiff failed to appear at a pre-trial conference. 

Although the plaintiff was represented by counsel at the pre-trial hearing, Rule 7.1 of the Family Court Domestic Rules for Judicial District 3A states, in part, that "[a]ttendance at pre-trial conferences is mandatory for all attorneys of record and all parties." 

The district court judge, upon noticing one of the attorneys' absence from the hearing, admonished the lawyer for her failure to appear.  The lawyer countered with a motion to recuse the judge, which was not met kindly by the district court. 

The district court, sighting the above local rule, noted that the attorney had failed to appear despite having actual knowledge that her attendance was required.  The reason given for missing the hearing? The attorney was meeting a contractor to have work done at her house.  In her motion to recuse, however, the attorney argued that her absence was acceptable because the plaintiff was represented by a licensed attorney.  No reference to the local rule was made. 

Not surprisingly, the attorney's "reason" for missing the hearing didn't sit well with either court, especially when the attorney was aware that her attendance was required.  As a result, the imposition of sanctions were affirmed on the basis that the motion to recuse contained an inaccurate recitation of facts.  

Today's picture is a personal favorite:

Opening at Supreme Court of NC

Thew N&O has reported that Justice Patricia Timmons-Goodson will be stepping down.  I would anticipate that Gov. Perdue will move quickly to appoint a replacement.  Speculation on my part, but don't be surprised to see either Judge Ervin, who recently lost his race against Justice Newby, or Judge Robert C. Hunter, who lost to now Justice Jackson four years ago, get the nod.

If either are appointed, this would leave an opening at the Court of Appeals - allowing Judge Thigpen to fill the seat (he recently lost his race against soon-to-be Judge Dillon).  

This also allowed me to post a photo of Bobbie Thigpen, a guy who had a great year closing for the White Sox back in my youth, seen hear wearing a Winston Salem Dash uniform:

The Court of Appeals is Coming for Your Guns!!!11!

Not really.  But in light of the recent election, and the fear that Obama will take your guns, I thought this Opinion filed yesterday was timely: LINK

The plaintiff sued Cabarrus County Sheriff, Brad Riley, after Sheriff Riley denied the plaintiff's concealed carry permit.  The plaintiff had, according to the Court, lied on an application by indicating that he had not been convicted of a crime, when in fact he had (assault on a woman in 2001).  Based on this misrepresentation and the violation of criminal law, the Court held that Sheriff Riley appropriately denied his concealed carry permit.

The plaintiff also raised the 2nd Amendment, arguing that he had a fundamental right to carry a concealed weapon.  The Court of Appeals disagreed, holding that:  "While courts have consistently held that the Second Amendment protects an individual’s right to possess a weapon, courts have also found that the Second Amendment does not extend to an individual’s right to conceal a weapon."

Love Done Gone

The Court of Appeals recently affirmed the dismissal of a State Highway Patrol Officer, Monty S. Poarch.  The decision can be found here: LINK 

Mr. Poarch had an on-again, off-again extramarital affair over the course of fifteen (15) years with Donna Lynne Kirby.  Ms. Kirby, evidently, ended the affair.  Mr. Poarch, however, did not take the news well and pulled Ms. Kirby over, which lead to a complaint filed by Ms. Kirby. 

That, in turn, resulted in allegations, later confirmed by Mr. Poarch, that he and Ms. Kirby had been engaged in some adult activity while he was on duty... And in the patrol car. 

Mr. Poarch argued that other officers had committed worse acts but were not dismissed.  While it boggles the mind to think of worse acts, the Court of Appeals said it would not "shackle the Patrol to the worse personnel decisions that they have made." 

Mr. Poarch would have been wise to listen to the words of Billy Currington, and just let love done gone:

Like snowflakes when the weather warms up
Like leaves on the trees when the autumn comes
Like the dogwood blossoms in a late spring rain
All the disappearin' bubbles in a glass of champagne
Like a red kite lost in a blue sky wind
I don't know where the good times went
It ain't nothin' we ever said or ever did wrong
It's just love done gone

New Opinions

Supreme Court published 4 opinions last week, they are here: http://appellate.nccourts.org/opinions/?c=sc&year=2012

Nothing of note for this blog purposes.  Those that work for HOAs or the like might be interested in this case: http://appellate.nccourts.org/opinions/?c=1&pdf=MjAxMi8yNjhBMTEtMS5wZGY=