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THE APPEALS PROCESS

COAJohn 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.

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 begun 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.

I can assist you with a wide range of civil law concerns, both initially and through the appeals process. Here are some cases in which I have represented clients on appeal:

  • V.M. v. Nat'l Freight Indus. North Carolina Court of Appeals (Oct 16, 2018) (privacy rights)

  • Danielson v. Human, Fourth Circuit Court of Appeals 676 Fed. Appx. 198 (2017) (due process);

  • O'Neal v. O'Neal, 803 S.E.2d 184, North Carolina Court of Appeals (2017) (powers of attorney)

  • Koehn v. Holley, North Carolina Court of Appeals (2016) (domestic violence protective order; DVPO)

  • Medlin v. Medlin, North Carolina Court of Appeals, 806 S.E.2d 704 (2017) (equitable distribution)

  • N.C. Farm Bureau Mut. Ins. Co. v. Lilley, North Carolina Court of Appeals, 808 S.E.2d 925 (2018)

  • Randall v. Cloud & Williams, PLLC, North Carolina Court of Appeals, 794 S.E.2d 561 (2016) (legal malpractice; statute of limitations)

  • Bradley Woodcraft, Inc. v. Bodden, North Carolina Court of Appeals 795 S.E.2d 253 (2016) (fraud against contractor)

  • Estate of Johnson v. Elandt, North Carolina Court of Appeals (2016) (fraud)

  • Peterson v. Dillman, North Carolina Court of Appeals, 782 S.E.2d 362 (N.C. App.2016) (underinsured motorist coverage)

  • Underwood v. Ordonez, North Carolina Court of Appeals, 781 S.E.2d 718 (2016) (malicious prosecution)

  • E. Brooks Wilkins Family Medicine v. WakeMed, North Carolina Court of Appeals, 784 S.E.2d178 (2016) (discovery and appeals)

  • GTC Services v. Region Q Workforce Investment Consortium, Fourth Circuit Court of Appeals,No. 15-1530 (2016) (bids for government contracts)

  • B&A v. ARC, North Carolina Court of Appeals, NO. COA14-527 (2014) (venue)

  • Wimes v. N.C. Board Of Nursing, North Carolina Court of Appeals, 768 S.E.2d 65 (2014) (professional licensure)

  • Manley v. Wendy’s, No. 12-1286 (4th Cir. 2012) (product liability)

  • B&A v. Evans, North Carolina Court of Appeals, No. COA12-732 (2012) (land use)

  • In re D.L.M., North Carolina Court of Appeals, NO. COA10-907 (2010) (termination of parental rights).

  • Crawford v. Mintz, Supreme Court of North Carolina, 363 N.C. 372 (2009) (negligent misrepresentation.

  • In re M.P.A., North Carolina Court of Appeals, NO. COA09-856 (2009) (TPR).

  • M.H. v. Triangle Research Collaborative, North Carolina Court of Appeals, NO. COA08-70 (2008) (due process).

  • In re V. T., North Carolina Court of Appeals, COA06-355 (2007) (TPR).

  • In re DjL, North Carolina Court of Appeals, 184 N.C. App. 76 (2007) (TPR).

  • 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) (underinsured motorist coverage).

  • In re N. G., North Carolina Court of Appeals, COA06-101 (2006) (TPR).

  • Harleysville Mut. Ins. Co. v. Nationwide Mut. Ins. Co., Supreme Court of North Carolina, 611 S.E.2d 832 (2005) (underinsured motorist coverage).

  • Walker v. Penn Nat’l Sec. Ins. Co.,North Carolina Court of Appeals, 168 N.C. App. 555 (2005) (underinsured motorist coverage).

  • In re B.N., North Carolina Court of Appeals, COA04-531 (2005) (TPR).

  • In re M.K., North Carolina Court of Appeals, COA03-1605 (2004) (TPR).

  • Davis v. JMX, Supreme Court of North carolina, 352 N.C. 662 (2000) (contribution).

  • Green v. Dixon, Supreme Court of North Carolina, 352 N.C. 666 (2000) (contribution).

  • Dutch v. Harleysville Mut. Ins. Co., North Carolina Court of Appeals, 139 N.C. App. 602 (2000) (insurance coverage).

  • Griffin v. Griffin, North Carolina Supreme Court, 348 N.C. 278 (1998) (Rule 11 sanctions).

  • Penn National Mut. Insurance Co. v. Strickland, North Carolina Court of Appeals , 178 N.C. App. 547 (2006) (underinsured motorist coverage).

  • 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) (legal malpractice).

  • 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) (professional licensing).

  • High Country Arts and Craft Guild v. Hartford Fire Insurance Company, Fourth Circuit Court of Appeals, 126 F.3d 629 (1997) (insurance, bad faith).

  • Robinson v. Parker, North Carolina Court of Appeals, 124 N.C. App. 164 (1996) (civil procedure).

These are, of course, just some of the appeals I have handled. As one can see from this list, I have been involved in appeals in numerous types of cases If you have an appeal, call my office a call to determine whether I’m the right attorney to help you appeal your case.