A Style Manual for the
North Carolina Rules
of Appellate Procedure
Appellate Rules Committee
Latest Revision Date: June 2023
www.ncbar.org/members/committees/appellate-rule
i
Index
Index ........................................................................................................... i
Statement of Purpose .................................................................................. 1
Additional Resources ................................................................................... 2
Recent Rule Amendments ........................................................................... 3
I. Notice of Appeal ................................................................................ 4
I(a). A Typical Notice of Appeal to the Court of Appeals ................ 6
I(b). A Typical Notice of Appeal to the Supreme Court ................ 15
II. Transcript Contract and Documentation .......................................... 19
III. The Record on Appeal .................................................................... 24
III(a). A Typical Printed Record on Appeal in a Civil Case ............. 25
III(b). A Typical Printed Record on Appeal in a Criminal Case ....... 45
III(c). A Typical Printed Record on Appeal in a Juvenile Case ....... 61
III(d). Summary of Items Constituting the Record on Appeal ......... 64
III(e). Typical Rule 9(d) Documentary Exhibits ............................... 65
IV. The Briefs ........................................................................................ 68
IV(a). A Typical Appellant’s Brief .................................................... 69
IV(b). A Typical Appellee’s Brief ..................................................... 87
IV(c). A Typical Memorandum of Additional Authority .................... 95
V. Extraordinary Writs .......................................................................... 99
V(a). A Typical Petition for Writ of Supersedeas and Motion for
Temporary Stay .................................................................. 100
V(b). A Typical Petition for Writ of Certiorari ................................ 115
VI. Motions and Other Papers ............................................................ 125
VI(a). A Typical Petition for Discretionary Review ........................ 126
VI(b). A Typical Motion to Consolidate Appeals ........................... 135
VI(c). A Typical Motion for Extension of Time .............................. 139
VI(d). A Typical Motion for Leave to File an Amicus Curiae Brief 144
VII. Formatting of Appellate Filings ...................................................... 149
VII(a). Form of Documents Filed with Appellate Courts ................ 150
VII(b). Sealing Documents and Rule 42 Checklist ......................... 154
VII(c). Citations ............................................................................. 157
Appellate Style Manual Page 1
Statement of Purpose
The Appellate Rules Committee of the North Carolina Bar Association (the
“Committee”) has prepared this Style Manual to assist North Carolina lawyers
appearing in the state appellate courts.
This Style Manual is not a substitute for the North Carolina Rules of Appellate
Procedure (the “Rules”). The Committee has attempted to avoid interpretation of the
Rules in this Style Manual. To the extent that this Style Manual appears to interpret
a Rule, any interpretation has no precedential value. Practitioners are strongly
advised to consult the Rules at each stage of an appeal, to acquaint themselves with
the process, and to read appellate opinions that interpret the Rules. Note that the
Rules are generally organized around the sequence and elements of an appeal (notice
of appeal, record on appeal, briefs, etc.).
This Style Manual is an effort to synthesize the Rules and the Appendixes into
a series of practical examples. The first record on appeal in the Style Manual, for
example, contains each of the elements of a typical civil-case record, with a few
commentaries by the Committee on important points. The Style Manual also contains
a printed record on appeal for a typical juvenile case and a typical criminal case.
However, practitioners should carefully note that juvenile appeals (involving
termination of parental rights or the neglect, abuse, or dependency of juveniles) are
subject to unique rules and deadlines. Further, practitioners with a criminal appeal or
an administrative appeal will need to adjust the content, if not the style, of the
remaining examples provided in this Style Manual, as the Rules vary slightly among
civil, criminal, and administrative appeals.
The Committee appreciates the advice and comments of those who use this
Style Manual. Please direct your suggestions to the Style Manual Editor, Caitlin
Mitchell, at NCAppellateStyleManual@gmail.com.
This Style Manual was first published on 13 May 1999. The latest revision date is shown
on the cover page. To ensure that you are referencing the current edition, click here to
download the latest edition. This edition of the Style Manual
has been updated to
incorporate the relevant amendments to the Rules that were adopted as of April 2023—i.e.,
the Rules codified on 1 March 2023. Click here to verify if any additional amendments
to the Rules have been adopted after 1 March 2023.
Appellate Style Manual Page 2
Additional Resources
In addition to reviewing the Rules themselves, the Committee also strongly
recommends that practitioners consult the following helpful sources:
• The Appendixes to the Rules set forth various forms and examples.
Although the Appendixes have historically not been considered an
“authoritative source on parity with the [R]ules,”
1
there are provisions in
the Rules themselves that expressly incorporate certain requirements
set forth in the Appendixes. See, e.g., N.C. R. App. P. 26(g)(1) (“The
format of all documents presented for filing shall follow the additional
instructions found in the [A]ppendixes to these [R]ules.”). The examples
in this Style Manual therefore reflect compliance with both the Rules and
the Appendixes. In any event, the Appendixes can be quite helpful to
practitioners. The timetables in Appendix A, for example, can serve as
an excellent roadmap.
• There are several other invaluable resources, including:
o Notice of Appeal Tip Sheet;
o Guide to Appealability of Interlocutory Orders; and
o Elizabeth Brooks Scherer & Matthew Nis Leerberg, North
Carolina Appellate Practice and Procedure (LexisNexis).
2
• Finally, the Committee would be remiss if it did not point practitioners to
another source of examples of appellate pleadings:
https://www.ncappellatecourts.org/. This website contains copies of the
records on appeal and briefs of cases filed in the North Carolina Court
of Appeals and Supreme Court in recent years. Of course, practitioners
should take care not to rely solely on the contents of such documents,
but they should always be guided by the Rules and their own good
sense.
1
The 2017 version of North Carolina Rules of Appellate Procedure included a preamble that
stated: “Appendixes are published with the rules for their helpfulness to the profession. Although
authorized to be published for this purpose, they are not an authoritative source on parity with the
rules.” N.C. R. App. P. pmbl. (2017), reprinted at 369 N.C. 763, 764. However, this preamble was
omitted when the Rules were amended on 7 January 2019.
2
Since North Carolina Appellate Practice and Procedure was first published in 2019, a release of
additional and substitute pages of this treatise has been published to reflect the Rule amendments
adopted on 17 November 2020. Note, however, that the Rules were amended once again on 13
October 2021, and these 13 October 2021 amendments are not yet reflected in the treatise.
Appellate Style Manual Page 3
Recent Rule Amendments
The Supreme Court of North Carolina amended the N.C. Rules of Appellate Procedure
(the “Rules”) three times in the last several years via its 17 November 2020 Order (the
“November 2020 Amendments”), its 13 October 2021 Order (the “October 2021
Amendments”), and its 1 March 2023 Order (the “March 2023 Amendments”). The
relevant portions of these recent Rule Amendments are reflected in this version of the
Style Manual.
To ensure that you are always referencing the current and official version of the N.C.
Rules of Appellate Procedure, refer to the “North Carolina Rules of Appellate
Procedure” page of the nccourts.gov website. This website also identifies any recent
Supreme Court Orders, amending the Rules.
The November 2020 Amendments apply to matters where the Notice of Appeal was
filed on or after 1 January 2021, the October 2021 Amendments apply to all matters
that were appealed on or after 1 January 2022, and the March 2023 Amendments
apply to all matters that were appealed on or after 13 February 2023. Stated differently:
➞ If your matter was appealed anytime in or after 1 January 2021, then there’s a
whole new process for ordering and filing lower-court transcripts on appeal.
Start by reviewing Section II of this Style Manual, which summarizes the bulk
of what you need to know about this new transcript process. You should then
review the 17 November 2020 Order, which reflects all of the redline edits of
the November 2020 Amendments.
➞ If your matter was appealed on or after 1 January 2022, then you also need to
understand the new transcript process (described above), which was tweaked
again by the October 2021 Amendments. Plus you should spend extra time
reviewing the 13 October 2021 Order, which reflects all of the redline edits of
the October 2021 Amendments. The October 2021 Amendments have
updated a lot, but here’s a quick list of the main topics addressed by the
October 2021 Amendments:
o Overhauled Rules regarding Rule 9(d) Exhibits
o Defined and distinguished “printed record” versus “record on appeal”
o E-filing is mandatory now if a party is represented by counsel
o Time for filing record on appeal
o Before filing an appellate motion, all represented parties must certify that
they made a “good-faith effort” to notify all other parties of their motion
and attempted to obtain their consent
o Virtual oral argument is available, upon request
I. Notice of Appeal
Appellate Style Manual Page 4
I. Notice of Appeal
Notes on the Notice of Appeal:
• The Notice of Appeal is one of the most important documents to include in the record
because without it, the appellate court may not have jurisdiction over the appeal.
See Crowell Constructors, Inc. v. State, 328 N.C. 563, 563-64, 402 S.E.2d 407, 408
(1991) (dismissing appeal for failure to include notice of appeal in record).
• Likewise, failure to properly serve the Notice of Appeal can subject the appeal to
dismissal. See Melvin v. St. Louis
, 132 N.C. App. 42, 43, 510 S.E.2d 177, 177
(1999) (finding that an oral notice of appeal before the trial court is insufficient notice
of appeal in a civil action under Rule 3). The certificate of service for the Notice of
Appeal should therefore also be included in the record.
• For appeals from the superior or district court, the Notice of Appeal is filed with the
clerk of superior court rather than in the appellate court. See N.C. R. App. P. 3(a).
o
Be aware that in cases assigned to the Business Court, the filing of the
Notice of Appeal through the Business Court’s electronic filing system will
not satisfy Rule 3. The Notice of Appeal still must be timely filed with the
clerk of superior court for the county in which the case was filed. Ehrenhaus
v. Baker, 243 N.C. App. 17, 31, 776 S.E.2d 699, 708-09 (2015).
• For appeals of right from the Court of Appeals to the Supreme Court, however, the
Notice of Appeal is filed with both the Clerk of the Court of Appeals and with the
Clerk of the Supreme Court. See N.C. R. App. P. 14(a).
• For additional tips and information about the Noti
ce of Appeal, see the Appellate
Rules Committee’s Notice of Appeal Tip Sheet.
I. Notice of Appeal
Appellate Style Manual Page 5
Notes on Fees and Costs Associated with Filing an Appeal:
• Appendix F sets forth the various fees and costs that parties can expect to incur in
the Appellate Division.
• In a typical civil appeal to the Court of Appeals, a “docketing fee” of $10.00, along
with an “appeal bond or c
ash deposit” of $250.00, is submitted to the Court of
Appeals by the appellant in connection with the filing of the record on appeal. N.C.
R. App. P. Appendix F. Printing costs for the record and the briefs are billed
separately.
• In an appeal from the Court of Appeals to the Supreme Court based on a dissent,
the appellant submits to the Supreme Court the $10.00 docketing fee and a $250.00
appeal bond. In addition, the appellant must also send a $10.00 certification fee to
the Court of Appeals. See N.C. R. App. P. Appendix F. In such a case, the Notice
of Appeal is filed with the clerks of both the Supreme Court and the Court of Appeals.
See N.C. R. App. P. 14(a).
• To file a petition for discretionary review with the Supreme Court, the appellant-
petitioner submits to the Supreme Court a $10.00 docketing fee. If (and only if) the
petition is granted, the appellant-
petitioner then submits to the Supreme Court a
$250.00 appeal bond and submits to the Court of Appeals a $10.00 certification fee.
See N.C. R. App. P. Appendix F.
• If the appellant files a Notice of Appeal based on a dissent and simultaneously files
a petition for discretionary review of an issue on which the Court of Appeals was
unanimous, the appellant submits to the Supreme Court a $20.00 docketing fee (for
both the petition and the notice of appeal) and a $250.00 appeal bond, and the
appellant immediately submits to the Court of Appeals a $10.00 certification fee.
See N.C. R. App. P. Appendix F.
• A Notice of Appeal based on a constitutional question is treated like a petition for
discretionary review because the Supreme Court must first determine if the
constitutional question is “substantial.” Thus, when a Notice of Appeal based on a
constitutional question is filed, the appellant submits to the Supreme Court a $10.00
docketing fee with the Notice of Appeal. If the Supreme Court accepts the appeal,
it will issue a briefing schedule, at which time the appellant should submit a $250.00
appeal bond to the Supreme Court and a $10.00 certification
fee to the Court of
Appeals.
I. Notice of Appeal
Appellate Style Manual Page 6
I(a). A Typical Notice of Appeal to the Court of
Appeals
I. Notice of Appeal
Appellate Style Manual Page 7
AVERY COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
21 CVS 1234
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
NOTICE OF APPEAL
TO THE HONORABLE COURT OF APPEALS OF NORTH
CAROLINA:
Plaintiff [Full Name] hereby gives notice of appeal to the Court
of Appeals of North Carolina from the final judgment of [Judge’s
Name], Superior Court Judge, entered on 15 November 2022, in the
Superior Court of Avery County, which dismissed Plaintiff’s action.
I. Notice of Appeal
Appellate Style Manual Page 8
This the 21st day of November, 2022.
[LAW FIRM NAME, if any, and only if
counsel is retained and not appointed]
By: Electronically submitted
[Name of Counsel]
Attorney for Plaintiff-Appellant
160 N. Main Street
Newland, NC 28786
(828) 456-1245
State Bar No. 12345
lawyer@lawfirm.com
I. Notice of Appeal
Appellate Style Manual Page 9
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he served a copy of the
foregoing NOTICE OF APPEAL on the opposing party by depositing a
copy, contained in a first-class, postage-paid wrapper, into a
depository under the exclusive care and custody of the United States
Postal Service, addressed as follows:
[Name and address of opposing counsel]
This the 21st day of November, 2022.
By: Electronically submitted
[Name of Counsel]
I. Notice of Appeal
Appellate Style Manual Page 10
[Sample Notice of Appeal in a Juvenile Case]
AVERY COUNTY
IN THE GENERAL COURT OF JUSTICE
DISTRICT COURT DIVISION
21 J 1234
In the Matter of:
A.B.C.
a minor child.
NOTICE OF APPEAL and
REQUEST FOR
APPOINTMENT OF COUNSEL
TO THE HONORABLE COURT OF APPEALS OF NORTH
CAROLINA:
Pursuant to N.C. Gen. Stat. § 7B-1001(a)(3), Respondent-Mother
[name] hereby gives Notice of Appeal to the Court of Appeals of North
Carolina from the Disposition Order, which was entered by the
Honorable George Jetson of the Avery County District Court and filed
on [date].
REQUEST FOR APPOINTMENT OF COUNSEL FOR APPEAL
Respondent-Mother [name] respectfully requests that counsel be
appointed to represent her in this appeal, in that she is indigent and
has previously had counsel appointed to represent her in this case, and
there has been no change in her financial circumstances since counsel
was appointed.
I. Notice of Appeal
Appellate Style Manual Page 11
This the _______ day of ______________, 2022.
[Name of Counsel]
[LAW FIRM NAME, if any]
Attorney for Respondent-Mother
160 N. Main Street
Newland, NC 28786
(828) 456-1245
State Bar No. 12345
lawyer@lawfirm.com
Respondent-Mother
I. Notice of Appeal
Appellate Style Manual Page 12
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing NOTICE OF
APPEAL and REQUEST FOR APPOINTMENT OF COUNSEL has
been served on the parties listed below by:
( ) depositing said notice in a postpaid, properly addressed
wrapper in a post office or official depository under the exclusive care
and custody of the United States Post Office Department.
[Name and address of attorney or party served in this manner]
( ) hand-delivery to the attorney or party by leaving it at the
attorney’s office with a partner or employee.
[Name of attorney or party served in this manner]
( ) sending it to the attorney’s office by a confirmed facsimile
transmittal for receipt by 5:00 P.M. Eastern Time.
[Insert name and fax number of attorney served in this manner]
This the _____ day of _____________, 2022.
[Name of Counsel]
I. Notice of Appeal
Appellate Style Manual Page 13
Notes on Notices of Appeal and Appeal Entries in Juvenile Cases:
• A written N
otice of Appeal is required in all civil cases, even those
involving a juvenile.
• As of January 2019, some juvenile cases are appealed directly to the
Supreme Court. See N.C. Gen. Stat. § 7B-1001(a1).
• Special requirements apply, however, to such
Notices of Appeal in
certain juvenile cases.
o Notices of Appeal in cases falling under Rule 3.1 (like the Notice
of Appeal set forth in the example above) must be signed by both
the parent and the trial lawyer if the appellant is represented by
trial counsel. See N.C. Gen. Stat. § 7B-1001(c).
o Note also that the Notice of Appeal is an appropriate location to
request appointment of appellate counsel for an indigent
appellant.
•
“Appeal entries” (sometimes called “appellate entries”) are used in
juvenile delinquency; termination of parental rights; and abuse, neglect,
or dependency cases.
• In cases where the appellant is indigent, the appeal entries are used to
establish indigency and appoint the appellate defender. In juvenile
delinquency and indigent cases, the
appeal entries are submitted to
order the transcript. In termination of parental rights and abuse, neglect,
and dependency cases, the appeal entries indicate who has been
designated to transcribe the transcript.
• Under Rule 3.1(c), the transcriptionist is
designated by the “court
reporting manager.” The clerk submits the appeal entries to reflect who
the manager designated, authorize the tapes to be delivered to the
transcriptionist, and track receipt and delivery.
• The appeal entries are usually included in the record on appeal after the
notice of appeal. See N.C. R. App. P. 9(a)(1)(i), 9(a)(3)(h).
• Forms for the appeal entries are available on the North Carolina Court
System website, as follows: AOC-CR-
350 (adult criminal cases and
indigent civil appeals), AOC-J-160 (termination of parental rights, and
abuse, neglect or dependency cases in which the parent appeals), AOC-
J-161 (same, in which the Department of Social Services or the Guardian
Ad Litem appeals), and AOC-J-470 (juvenile delinquency cases).
• See A Typical Printed Record on Appeal for a Juvenile Case, infra, for
examples of how to compile the other sections of the record on appeal
for juvenile cases.
• For more information and resources relating to appeals in juvenile cases,
see the materials available:
o On the “Training and Reference Materials Index” page of
North
Carolina’s Office of Indigent Defense Services website;
o In the UNC Sc
hool of Government’s Indigent Defense Manual
Series (Chapter 16 is dedicated to Appeals); or
I. Notice of Appeal
Appellate Style Manual Page 15
I(b). A Typical Notice of Appeal to the Supreme
Court
Notes on Notice of Appeal to the Supreme Court:
• For appeals of right from the Court of Appeals to the Supreme Court, the Notice of
Appeal is filed with the Clerk of the Court of Appeals and
with the Clerk of the
Supreme Court. See N.C. R. App. P. 14(a).
• To the right of the parties' names should appear at least the Court of Appeals docket
number. The Rules and Appendixes are not clear on whether other information
should be included as well. See N.C. R. App. P. Appendix B.
• The appellant must include a "clear copy of the opinion of the Court of Appeals" with
a Notice of Appeal to the Supreme Court. See N.C. R. App. P. Appendix D.
• For appeals of right to the Supreme Court based on a constitutional question, see
N.C. Gen. Stat. § 7A-30(1) (2017), the Appendixes contain a detailed example of
the kind of description of the issue that the Court requires. See
N.C. R. App. P.
Appendix D.
• If the appellant wishes to present issues beyond those that formed the basis of the
dissenting opinion in the Court of Appea
ls, the appellant must do so by filing a
petition for discretionary review as to the additional issues. See N.C. R. App. P. 14,
15, Appendix D. Such a petition may be filed with the Notice of Appeal, in a separate
paper, or may be contained within the Notice of Appeal itself. See N.C. R. App. P.
14(b)(1).
I. Notice of Appeal
Appellate Style Manual Page 16
No. _________
TWENTY-FOURTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
[Case Number from Court of
Appeals]
NOTICE OF APPEAL BASED ON DISSENT IN NORTH
CAROLINA COURT OF APPEALS PURSUANT TO N.C. GEN.
STAT. § 7A-30(2) & N.C. R. APP. P. 14
TO THE HONORABLE SUPREME COURT OF NORTH CAROLINA
Plaintiff [name] hereby appeals to the Supreme Court of North
Carolina from the judgment of the Court of Appeals, issued on 6
December 2022, which was entered with a dissent by the Honorable
Suzy McGillicutty. The Court of Appeals’ opinion and dissent in this
case are attached hereto as EXHIBIT A. The dissent by Judge
McGillicutty was based on the following issues, which Plaintiff will
present to the Supreme Court of North Carolina for appellate review:
I. Notice of Appeal
Appellate Style Manual Page 17
I. Did the Court of Appeals’ majority err in affirming the
district court’s award of alimony to Defendant?
II. Did the Court of Appeals’ majority err in affirming the
district court’s award of 83% of the marital estate to Defendant in
equitable distribution?
This the _____ day of __________, 2022.
[LAW FIRM NAME, if any, and only if
counsel is retained and not appointed]
By: Electronically submitted
[Name of Counsel]
Attorney for Plaintiff-Appellant
160 N. Main Street
Newland, NC 28786
(828) 456-1245
State Bar No. 12345
lawyer@lawfirm.com
I. Notice of Appeal
Appellate Style Manual Page 18
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he served a copy of the
foregoing NOTICE OF APPEAL on the opposing party by depositing a
copy, contained in a first-class, postage-paid wrapper, into a
depository under the exclusive care and custody of the United States
Postal Service, addressed as follows:
[Name and address of opposing counsel]
This the _____ day of __________, 2022.
By: Electronically submitted
[Name of Counsel]
II. Transcript Contract and Documentation
Appellate Style Manual Page 19
II. Transcript Contract and Documentation
Transcript Overview:
• Appeals routinely require the parties to refer to testimonial evidence
that was
admitted or gathered during a trial tribunal proceeding, hearing, voir dire, or
deposition.
• Per Appellate Rule 9(c), such testimonial evidence can usually be presented to the
appellate court for review
via either (1) a verbatim transcript or (2) a narrative
statement.
o In most instances, a verbatim transcript of the testimony
, which has been
prepared by a neutral transcriptionist
, will be submitted to the applicable
appellate court for review.
The procedures for ordering and filing the
transcript are set out in Rule 7.
o Under Rule 9(c)(1), the parties may alternatively elect to present a "narrative"
of certain relevant testimony to the appellate court. Rather than a verbatim
transcript, a narrative statement is a summary of the pertinent testimony or
proceedings, which is placed directly in the record. The narrative statement
(or “narrative option”) might be selected if a verbatim transcript cannot be
produced but such evidence is nevertheless necessary to the appeal.
• When selecting the manner in which to present relevant evidence on appeal, Rule
9(c)(1) instructs the parties to “use the form or combination of forms best calculated
under the circumstances to present the true sense of the required testimonial
evidence concisely and at a minimum expense to the litigants.”
N.C. R. App. P.
9(c)(1). That being said, there are several instances when the narrative option may
not be used. For example, when the issue on appeal “relates to the giving or
omission of instructions to the jury, a transcript of the entire charge shall be included
in the record on appeal.” N.C. R. App. P. 9(a)(1)(f) (emphasis added).
•
By convention, the appellate courts disfavor condensed transcripts (in which
multiple pages are displayed on a single sheet of paper).
Therefore, if certain
testimony is only available in condensed format, consider converting it to a full-page
format and entering a stipulation that the parties agree that the substituted transcript
is authentic.
II. Transcript Contract and Documentation
Appellate Style Manual Page 20
Notes on Recent Amendments to the Transcript Rules:
• On 17 November 2020, the Supreme Court of North Carolina amended the Rules
governing the process for ordering and filing transcripts in both civil and criminal
appeals, but the bulk of these amendments were made to Rule 7—i.e., the Rules
governing the process of ordering and filing transcripts related to a pending appeal
.
The amended Rules apply to all appeals noticed on or after 1 January 2021. See
17 November 2020 Order.
• In essence, the 17 November 2020 Amendmen
ts updated the transcript ordering
and filing process as follows:
o
The Supreme Court introduced two standardized forms to streamline the
transcript ordering process: the Appellate Division Transcript Contract form
and the Appellate Division
Transcript Documentation form. As discussed
below, the use of these forms is mandatory in almost every appeal noticed
on or after 1 January 2021. (Prior to the 17 November 2020 Amendments,
there were no standard forms for the transcript contracts or documentation.)
o The party ordering the transcript(s) is no longer required to file a copy of the
transcript contract with the trial court. (Prior to the 17
November 2020
Amendments, the parties were required to file a copy of the transcript
contract with the clerk of the trial tribunal.)
o
The appellant now files all transcripts with the applicable appellate court.
(Prior to the 17 November 2020 Amendments, the court reporter(s) hired to
prepare each transcript would file his or her assigned transcript(s) with the
applicable appellate court.)
• The Supreme Court amended the Rules again on 13 October 2021. See 13 October
2021 Order. However, the 13 October 2021 Order only revised one aspect of the
new rules regarding transcripts
, regarding the deadline when the appellant is
required to e-file all transcripts with the applicable appellate court.
•
When the November 2020 Amendments and the October 2021 Amendments are
considered together, they dictate the following minor discrepancy regarding when
the appellant e-files the applicable transcripts:
o If the Notice of Appeal was filed in 2021, then the appellant is required to e-
file all transcripts with the applicable appellate court “[a]s soon as practicable
after the appeal is docketed.” See N.C. R. App. P. 7(f) of 17 November 2020
Order. Note, however, that Rule 7(f) has since been repealed by the October
2021 Amendments, and thus, this somewhat vague “[a]s soon as practicable”
deadline only applies to matters appealed in 2021.
o If the Notice of Appeal was filed on or after 1 January 2022, then the appellant
is required to e-file all transcripts
with the applicable appellate court along
with the rest of the Record on Appeal, i.e., “no later than 15 fifteen days after
[the Record on Appeal] has been settled.” See N.C. R. App. P. 9(a), (c)(3)
and 12(a).
II. Transcript Contract and Documentation
Appellate Style Manual Page 21
Notes on the Appellate Division Transcript Documentation Form:
• Any party that wishes to have the appellate court review any trial court transcripts
(e.g., hearing or deposition transcripts) in relation to the pending appeal "must
complete an Appellate Division Transcript Documentation form." N.C. R. App. P.
7(b)(3) (emphasis added).
o Only one completed Appellate Division Transcript Documentation form may
be required per appeal, however. If the appellant’s completed form lists all
relevant transcripts, then appellee is not required to complete a separate
Transcript Documentation form. In other words, appellee is only required to
complete this form if appellee chooses to add any additional transcripts to
appellant’s Transcript Documentation form.
• The Appellate Division Transcript Documentation form can be found on the North
Carolina Judicial Branch’s official website
. However, practitioners are advised to
periodically check the website for updates.
•
Once completed, the Appellate Division Transcript Documentation form must be
served on the other parties to the appeal within the time allowed under Rule 7(b)(2).
See N.C. R. App. P. 7(b)(4).
o For the appellant, this is 14 days after giving notice of appeal.
o For the appellee, this is 28 days after the appellant gives notice of appeal.
• In addition to service of the Appellate Division Transcript Documentation form, any
party serving Transcript Documentation also must serve
, upon all parties to the
appeal, a copy of all pre-appeal transcripts to be filed with the Appellate Division.
• Under the amended Rules, however, the ordering party is not also required to file
the completed Appellate Division Transcript Documentation form with either the
clerk of the trial tribunal or appellate court.
Notes on the Appellate Division Transcript Contract Form:
• Any party "who orders a transcript for the appeal after notice of appeal is filed or
given must use an Appellate Division Transcript Contract form.
" N.C. R. App. P.
7(b)(1) (emphasis added).
• The only exceptions to Transcript Contract form requirement apply if
o (a) a party orders a transcript before the notice of appeal is filed, see N.C. R.
App. P. 7(b)(1);
o (b) the matter arises under Rule 3.1, see N.C. R. App. P. 3.1(c); or
o (c) the matter involves an indigent party who is “entitled to
be appointed
appellate counsel,” N.C. R. App. P. 7(c).
• In other words, if a party already possess all of the trial court transcripts required for
the pending appeal, then an Appellate Division Transcript Contract Form is not
required. However, if either party still needs to order any relevant trial court
transcripts (e.g., hearing or deposition transcripts) after the Notice of Appeal has
II. Transcript Contract and Documentation
Appellate Style Manual Page 22
been filed, then said party must complete and properly serve this requisite Transcript
Contract form.
• The current version of the Appellate Division Transcript Contract form can be found
on the North Carolina Judicial Branch’s official website. However, practitioners are
advised to periodically check the website for updates.
• The Appellate Division Transc
ript Contract form standardizes the process for
contracting with the transcriptionist, as well as the terms of the contract. For
example, among the form’
s standard conditions, the transcriptionist "agrees to
deliver the transcript to the requestor and to each person or entity that the requestor
has identified as a party to the appeal." The transcriptionist also "agrees that the
requestor may reproduce the transcript, prepare derivative works from the transcript,
distribute copies of the transcript, and display the transcript publicly."
• Unless the appeal arises under Rule 3.1 or involves an indigent party who is entitled
to appellate counsel, the appellant must serve the completed
Appellate Division
Transcript Contract form on all parties to the appeal, as well as the transcriptionist,
no later than 14 days after giving notice of appeal. N.C. R. App. P. 7(b)(2). The
appellant thus must order any transcripts before this 14-day period expires. If the
appellee orders any additional transcripts, the appellee must serve its own form 28
days after the appellant gives notice of appeal. Id.
o Within the first six days after a Notice of Appeal is filed in a Rule 3.1 matter,
the superior court clerk will coordinate with the court reporting manager of
the Administra
tive Office of the Courts to assign a transcriptionist to the
matter. See
N.C. R. App. P. 3.1(c). Thereafter, the transcriptionist will
automatically prepare the “the transcript of the entire proceedings at the
State’s expense if there is an order that e
stablishes the indigency of the
appellant.” Id. In all other Rule 3.1 appeals, the appellate must enter into a
contract with the assigned transcriptionist within 10 days after the
transcriptionist has been assigned to the matter. See id.
o If “a party is indigent and entitled to be appointed appellate counsel,” then
the indigent party “is entitled to have the clerk of superior court order a
transcript on that party’s behalf.” N.C. R. App. P. 7(c)(1). In such instances,
the clerk of superior court “must use an appropriate appellate entries form to
order a transcript,” and must “serve the appellate entries on each party and
on each transcriptionist no later than 14 days after a judge signs the form.”
N.C. R. App. P. 7(c)(2). These forms are also available on the North Carolina
Judicial Branch’s website. N.C. R. App. P. 7(c)(1).
• Under the amended Rules, a party ordering a transcript does not need to file the
transcript contract with the trial court. See N.C. R. App. P. 7(b)(1)-(2).
o However, the appellant should include a copy of the transcript contract in the
record on appeal.
Rule 9 states that the record shall contain “all orders
establishing time limits relative to the perfecting of the appeal.” N.C. R. App.
P. 9(a)(1)(i), (2)(h), (3)(h). Alternatively, the record may include a stipulation
that the transcript contract was properly filed and served.
II. Transcript Contract and Documentation
Appellate Style Manual Page 23
Notes on the Transcriptionist’s Delivery of Any Ordered Transcripts:
•
After being served with the Appellate Division Transcript Contract form, the
transcriptionist usually has 90 days to deliver the transcript. N.C. R. App. P. 7(e)(1).
o However, this dea
dline varies, per newly amended Rule 7(e)(1), in the following
three instances:
(1) the deadline is 180 days in death-penalty cases;
(2) the deadline is 60 days in “an undisciplined or delinquent juvenile case
under Subchapter II of Chapter 7B of the General Statutes” (i.e., N.C. Gen.
Stat. §§ 7B-1500 through -2706); and
(3) the deadline is also 60 days in “a special proceeding about the admission
or discharge of clients under Article 5 of Chapter 122C of the General
Statutes” (i.e., N.C. Gen. Stat. §§ 122C-201 through -366). N.C. R. App. P.
7(e)(1).
o Additionally, in juvenile cases governed by Rule 3.1, the transcriptionist must
deliver the transcript to each party within 40 days after receiving the assignment
from the court reporting manager. N.C. R. App. P. 3.1(c).
• When the transcriptionist delivers the transcript, the transcriptionist must "certify to
the parties and to the clerk of superior court that the transcript has been delivered."
N.C. R. App. P. 7(e)(2).
Notes on Filing Transcripts with Appellate Court:
•
“Counsel must file documents [including transcripts] in the appellate courts
electronically,” via the “electronic-filing site for the appellate courts . . . located at
https://www.ncappellatecourts.org
.” N.C. R. App. P. 26(a). “A person who is not
represented by counsel is encouraged to file items in the appellate court
electronically but is not required to do so.” Id.
• “[N]o later than 15 fifteen days after [the Record on Appeal] has been settled,” the
“appellant shall file the transcript pursuant to Rule 12 with the clerk of the appellate
court in which the appeal has been docketed.” See N.C. R. App. P. 9(a), (c)(3) and
12(a) (emphasis added).
o Exception: In matters where the Notice of Appeal was filed within 2021, Rule
7(f) of the November 2020 Amendments applies and prescribes a slightly
different deadline for when the appellant is required to e-file transcripts with
the applicable appellate court. (Rule 7(f) has since been appealed by the
October 2021 Amendments, and therefore, no longer applies to any appeals
noticed on or after 1 January 2022.) In matters appealed in 2021, however,
Rule 7(f) more broadly dictates that the appellant is required to e-
file all
relevant transcripts “[a]s soon as practicable after the appeal is docketed.”
See N.C. R. App. P. 7(f) of 17 November 2020 Order.
III. The Record on Appeal
Appellate Style Manual Page 24
III. The Record on Appeal
Notes on Recent Rule Amendments:
•
Via its October 2021 Rule Amendments, the Supreme Court of North Carolina
clarified the definitions of the “Record on Appeal” versus the “Printed Record.” See
Rule 9(a) of
13 October 2021 Order.
Previously, these terms were often used
interchangeably by practitioners. However, the Rules now clarify that:
o
The “Printed Record” essentially consists of the relevant documents filed
with and reviewed by the trial court, see N.C. R. App. P. 9(a)(1)-(3); while
o
“Record on Appeal” should now be used as the umbrella term that
encompasses the Printed Record, as well as all trial court “transcripts,
exhibits and other items included . . . pursuant to Rule 9(d), any supplement
prepared pursuant to Rule 11(c) or Rule 18(d)(3), and any additional
materials filed pursuant to this Rule 9.” N.C. R. App. P. 9(a).
Notes on Page Numbers in the Printed Record:
•
Although page numbers are not reflected in this Style Manual, the “Numbering
Pages” section of Appendix B dictates that page numbers are generally required in
appellate filings, including the Printed Record.
• In the Printed Record, page numbers should be centered and flanked by dashes at
the top of each page after the cover page—i.e., the first page of the filing that reflects
the case caption should not be numbered. See N.C. R. App. P. at Appendix B.
o If the index continues onto one or more pages, any su
bsequent pages
should be numbered with lowercase Roman numerals, flanked by dashes
(i.e., -ii-, -iii-, -iv-), starting with “ii” since page “i" is the unnumbered cover
page. See id.
o The first and all subsequent pages of the substantive document should be
numbered by Arabic numbers, flanked by dashes (i.e., -1-, -2-. -3-). See id.
• The page numbers may appear within the 1-
inch top margin, as long as the first
substantive line is at least 1-
inch from the top edge of the paper. Practitioners
should be careful, however, not to place page numbers within the top 0.5-inch of the
page as numbers may be cut off when the page is photocopied by the Clerk’s Office.
• Unlike the appellate briefs, no “inside caption”—that is, a repeat of the case number,
court information, and party names—is required in the Printed Record.
III. The Record on Appeal
Appellate Style Manual Page 25
III(a). A Typical Printed Record on Appeal in a Civil
Case
III. The Record on Appeal
Appellate Style Manual Page 26
No. _________ TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
[Case Number as in Final]
Judgment or Order on Appeal
***********************************
PRINTED RECORD ON APPEAL
***********************************
INDEX
Statement of Organization of Trial Court ..................... 1
Statement of Jurisdiction .............................................. 1
Plaintiff’s Complaint [filed 1 April 2022] ...................... 3
Defendant’s Answer [filed 24 April 2022] ..................... 3
Pre-Trial Order [filed 1 November 2022] ...................... 3
Jury Instructions [given 15 November 2022] .............. 3
Proposed Jury Instructions [submitted 14
November 2022] .................................................... 3
Jury Verdict [filed 15 November 2022] ......................... 3
Post-Verdict Motions and Rulings................................. 3
Judgment [filed 15 November 2022] ............................. 3
[Plaintiff’s] Notice of Appeal with Certificate of Service
[filed 21 November 2022]...................................... 4
Statement of Transcript Option .................................... 7
Transcript Documentation ............................................ 8
Statement of Rule 11(c) Supplement .......................... 13
Objections to Record by Appellee ................................ 14
III. The Record on Appeal
Appellate Style Manual Page 27
Stipulation Settling Record on Appeal ........................ 15
[Plaintiff’s] Proposed Issue[s] on Appeal ..................... 21
Identification of Counsel for the Appeal ..................... 23
Certificate of Service of Proposed Record on Appeal .. 23
Certificate of Service of Final Record on Appeal ........ 23
Notes on Cover Page of Printed Record on Appeal:
• The case number (“No.”) in the top left-hand corner is left blank. See N.C. R. App.
P. Appendix B. The Clerk’s office will assign a number when the record is filed, and
it will appear in the printed record on appeal.
o In some circumstances, one or both parties will have filed a motion (e.g., for
extension of time) or a petition (e.g.
, for writ of supersedeas) before the
record on appeal has been filed. In those situations, the Clerk’s office will
have assigned a temporary case number, designated with a “P” (e.g., “COA
09-P100”).
o This “P number” will not correspond to the docket number later assigned to
the appeal.
o Many “P number” documents should be included in the subsequently filed
record on appeal under Rule 9, including orders extending time and orders
disposing of a petition for writ of supersedeas or certiorari.
•
The Judicial District from which the case arises should be listed in the top right
corner. See
N.C. R. App. P. Appendix B. Note that the Judicial Districts were
realigned in 2019. The proper Judicial District can be retrieved here.
• To the right of the p
arties’ names should appear the county from which the case
comes and the indictment or docket numbers of the case below. The county name
stays on all subsequent documents, but after the case is assigned its own case
number by the appellate court, the trial docket number is dropped from subsequent
filings. See N.C. R. App. P. Appendix B.
• Any new typed material within the Printed Record (e.g., Statement of Organization
of Trial Court”) “should be single-
spaced, with double spaces between paragraphs.”
N.C. R. App. P. Appendix B.
Comparatively, the body of the notice of appeal,
appellate petitions, motions, briefs, and responses should be double-spaced. Id.
• Generally, margins for the non-index pages in the Printed Record are 1-
inch all
around. See N.C. R. App. P. Rule 26(g)(1). Index entries, on the other hand, are
indented 0.75-inch from both standard 1-
inch margins (or, put another way, the
index line has margins of 1.75-inches from each side, yielding a 5-inch line in the
middle). See N.C. R. App. P. Appendix B.
•
Though not required, it is helpful to the appellate courts to provide additional
explanatory material in the index entries, such as identifying which party filed the
pleading, the date it was filed, etc. One way to include such explanatory information
is to present the added material in brackets, as shown in the sample index above.
•
Procedures for the record on appeal in criminal cases and juvenile cases are
presented below.
III. The Record on Appeal
Appellate Style Manual Page 28
STATEMENT OF ORGANIZATION OF TRIAL COURT
Plaintiff-Appellant appeals from the 15 November 2022 jury
verdict and judgment dismissing Plaintiff’s claim, rendered during the
1 November 2022 Civil Session of Superior Court of Avery County, the
Honorable [Name of Judge], presiding. Plaintiff filed and served
written notice of appeal on 21 November 2022.
The record on appeal was filed in the Court of Appeals on [date
e-filed].
[Sample of “Statement of Jurisdiction” in a Civil Appeal]
STATEMENT OF JURISDICTION
This action was commenced by the filing of a complaint and issuance
of summons on 1 April 2022. The parties acknowledge that the trial
court had personal and subject-matter jurisdiction.
Notes on Statement of Jurisdiction:
•
In a civil case, if jurisdiction is not at issue, the parties can insert this statement.
Nevertheless, it is advisable to include the summons and return of service,
particularly in cases involving termination of parental rights. See, e.g., In re K.A.D.,
187 N.C. App. 502, 504, 653 S.E.2d 427, 429 (2007) (concluding the trial court
lacked subject-
matter jurisdiction over petition to terminate parental rights when
summons was not served on juvenile); Conner Bros. Mach. Co. v. Rogers, 177 N.C.
App. 560, 561, 629 S.E.2d 344, 345 (2006) (holding that in the absence of issuance
of a summons, the action is "deemed never to have commenced" and the court lacks
subject-matter jurisdiction).
• In a crim
inal case, there is no "Statement of Jurisdiction," because a copy of the
warrant or similar process usually follows the "Statement of Organization" page.
•
An example of a jurisdictional statement in an administrative appeal is set forth
below.
III. The Record on Appeal
Appellate Style Manual Page 29
[For Administrative Appeals Only – Alternative Sample of “Statement of
Jurisdiction”]
STATEMENT OF JURISDICTION
This action was commenced by the filing of a petition for
contested case hearing with the Office of Administrative Hearings,
pursuant to N.C. Gen. Stat. § 150B-23 on 8 November 2022. The
Administrative Law Judge issued a Decision on 6 December 2022. The
Environmental Management Commission, pursuant to N.C. Gen.
Stat. § 143B-282.1(b), issued the Final Agency Decision dated 4
January 2022, which was served on 5 January 2022. On 25 January
2022, Petitioner filed a Petition for Judicial Review in the Avery
County Superior Court. The parties acknowledge that the Office of
Administrative Hearings, the Environmental Management
Commission, and the Superior Court of Avery County had personal
and subject-matter jurisdiction.
Notes on Statement of Jurisdiction for Administrative Appeals:
• The example set out above concerns an appeal from an agency decision pursuant
to the North Carolina Administrative Procedure Act, Chapter 150B of the General
Statutes.
• When the appeal of an agency decision is not governed by the Administrative
Procedure Act, this example should be tailored accordingly.
• Rules 18 through 20 set forth requirements for administrative appeals directly to the
appellate division under N.C. Gen. Stat. § 7A-29.
[Copy of Complaint]
Note on Date Stamps:
• Rule 9(b)(3) requires that all documents included in the Printed Record show the
date on which they were filed. Often the Clerk’s time stamp becomes illegible when
copied, however. The easiest solution is to make a clear, handwritten, or typed date
entry on the copy included in the record. For example, just above or just below the
Clerk’s stamp, you might type: “Filed 24 Jan. 2010.” Obviously, this should only be
done where there is no dispute about the filing of the document. If there is some
dispute, do not mark the copy.
III. The Record on Appeal
Appellate Style Manual Page 30
[Copy of Answer]
[Copies of other pleadings necessary to understand issues presented
on appeal. Refer to Rule 9(a) for a description of the documents to be
included here. Note that discovery materials may be included here or
may be submitted to the court separately. See N.C. R. App. P. 9(c)(4).]
[Copy of pre-trial order]
[Copy of transcript of jury charge given and copy of instruction proposed
but omitted if relevant to the appeal]
[Copy of jury’s verdict sheet]
Notes on Jury Instructions:
• Rules 9(a)(1)(f) and 9(a)(3)(f
) impose additional requirements when the appellant
seeks to challenge the giving or omission of instructions to the jury.
• In such appeals, the appellant must include (after the pre-trial order) “a transcript of
the entire charge given; and identification of the omitted instruction by setting out
the requested instruction or its substance in the record on appeal immediately
following the instruction given.” N.C. R. App. P. 9(a)(1)(f), (3)(f).
• When the trial court issues a different instruction than the omi
tted instruction
requested, it may be useful to recapitulate the actual instruction given, after the
“entire charge” but before the presentation of the omitted instruction, for ease of
comparison. That is, the record would present, in order:
o The entire jury charge;
o The particular instruction challenged; and, if applicable,
o
The particular instruction requested but omitted.
[Copy of post-verdict motions and rulings, if any and if relevant to the
appeal]
[Copy of judgment]
[Notice of Appeal]
[See below for information regarding insertion of “Appeal Entries” in
criminal cases. Juvenile cases also use appeal entries. See A Typical
Printed Record on Appeal in a Juvenile Case section of this manual,
infra, for more information about such documents.]
III. The Record on Appeal
Appellate Style Manual Page 31
STATEMENT OF TRANSCRIPT OPTION
Per Rules 7(b) and 9(c) of the North Carolina Rules of Appellate
Procedure, the transcript of the entire proceedings in this case
(excepting the jury selection and arguments of counsel), taken by Jane
Doe, Court Reporter, from 12 November 2022 through 15 November
2022, consisting of 399 pages, numbered 1-399, bound in one volume,
will be electronically filed by Jane Doe promptly once a docket number
is assigned to this appeal.
Transmitted with the record are the portions of the deposition of
Wyle E. Coyote (Vol. 1, pages 10-45) that were submitted to the trial
court in connection with the motion for summary judgment.
Notes on Statement of Transcript Option:
• Under Rule 9(a)(1)(e), the appellant has the option of setting forth a narration of the
proceedings below, per Rule 9(c)(1), or submitting a verbatim transcript of those
proceedings, per Rule 9(c)(2).
o
The narration option might be selected if a verbatim transcript cannot be
produced and such evidence is necessary to the appeal. Narration involves
producing a written summary of such evidence, which is then placed directly
in the record. If the parties cannot agree on the content of the narration, the
trial judge can settle the narration under Rule 11(c), upon timely request for
judicial settlement.
o If a verbatim transcript is used instead, the transcript is not included in the
Printed Record, but rather the Printed R
ecord must include a statement
explaining that a verbatim transcript will be filed separately. See N.C. R.
App. P. 9(a)(1)(e).
• Appellate courts generally disfavor condensed transcripts (in which multiple pages
are displayed on a single sheet of paper). If a transcript
is only available in
condensed format, consider converting it to a full-page format
and entering a
stipulation that the parties agree that the substituted transcript is authentic.
[Copy of completed Appellate Division Transcript Documentation form]
III. The Record on Appeal
Appellate Style Manual Page 32
STATEMENT OF RULE 11(c) SUPPLEMENT
In accordance with Rules 9(a) and 11(c) of the North Carolina
Rules of Appellate Procedure, a “Rule 11(c) Supplement to the Printed
Record on Appeal,” consisting of 174 pages, numbered 175-348, is
being filed contemporaneously herewith.
The Rule 11(c) Supplement will be referenced as “(R S p _____).”
Notes on Rule 11(c) Supplement:
•
Rule 11, which governs settlement of the record on appeal, was amended
significantly in 2004 and 2007. The amendments limited and clarified judicial
settlement of the record on appeal. Judicial settlement is now appropriate only when
"any party to the appeal contends that materials proposed for inclusion in the record
or for filing therewith pursuant to [Rule 9(c) or 9(d)] were not filed, served, submitted
for consideration, admitted, or made the subject of an offer of proof,
or that a
statement or narration permitted by these rules is not factually accurate." N.C. R.
App. P. 11(c).
•
The 2007 amendments also created a new type of document, the "Rule 11(c)
Supplement to the Printed Record on Appeal." If either party objects to inclusion of
a particular document in the record, and the parties cannot agree on its inclusion,
then per the 2007 amendments, that document should usually be submitted to the
appellate court as part of the Rule 11(c) Supplement to the Printed Record.
• Note also that Rule 11(c) provides that "[i]f a party does not agree to the inclusion
or specification of an exhibit or transcript in the printed record, the printed record
shall include a statement that such items are separately filed along with the Rule
11(c) Supplement." N.C. R. App. P. 11(c).
•
Any Rule 11(c) Supplement should be numbered consecutively to follow the last
page of the printed record on appeal. See N.C. R. App. P. 9(b)(4). Citations to the
Rule 11(c) Supplement should read: "(R S p ___)."
• The Rules also require "a statement, where appropriate, that a supplement compiled
pursuant to Rule 11(c) [to be] filed with the record on appeal." N.C. R. App. P.
9(a)(1)(m). This statement should appear after the Statement of Transcript option
and related documents. See N.C. R. App. P. Appendix C.
• On 19 December 2018, Rule 11(c) was amended to only require the filing of one
copy of any Rule 11(c) Supplement rather than three copies as previously required.
The amended Rule became effective on 1 January 2019. See 19 December 2018
Order Amending the Rules of Appellate Procedure..
III. The Record on Appeal
Appellate Style Manual Page 33
[If applicable, a copy of any order entered at the trial court level
extending time to produce the transcript(s) or serve the proposed Printed
Record]
[If applicable, a copy of any order from the appellate court extending
time to file the Record on Appeal, etc.]
Notes on Extensions of Time:
• Extensions of time relating to the transcript or the record on appeal may be included
here, because they relate to the "time limits relative to the perfecting of the appeal."
N.C. R. App. P. 9(a)(1)(i), 9(a)(2)(h), and 9(a)(3)(h). Alternatively, the parties may
set forth the relevant dates and extensions and stipulate that documents were timely
filed and served.
• The idea is to demonstrate compliance with the time limits of the Rules by showing
appropriate extensions of time at the trial court and, if necessary, the appellate
division, at this point in the record.
[Objections to the record by appellee, if necessary]
Note on Objections to Record by Appellee:
•
It is typically not necessary to include the objections to the proposed record,
especially if the parties later settled the record by agreement. In that situation, the
parties can simply include a stipulation explaining the procedural history of the
record being settled, to show compliance with the time limits related to perfecting
the appeal.
[If needed, a copy of the court order settling the contents of the record
on appeal. If settled by agreement of the parties, see the following
page.]
III. The Record on Appeal
Appellate Style Manual Page 34
STIPULATION SETTLING RECORD ON APPEAL
Counsel for the Plaintiff-Appellant and Defendant-Appellee stipulate
as follows:
1. The proposed record on appeal was timely served on 15
February 2023. The certificate showing service of the proposed record
may be omitted from the settled record.
2. Defendant’s objections were served on 10 March 2023.
Defendant objected to the omission of certain documents from the
Record on Appeal and the inclusion of certain documents in the Record
on Appeal. The parties came to an agreement as to which documents
would be included in the printed record. Because no party moved for
judicial settlement, the Record on Appeal was deemed settled on 20
March 2023.
[Alternative ¶ 2 where parties do not agree on the record]
2. Defendant’s objections were served on 10 March 2023.
Defendant objected to the omission of certain documents from the
record. The parties were unable to reach an agreement about the
inclusion of these documents in the printed record. The parties
determined that judicial settlement of the supplemental record
documents was inappropriate under the criteria listed in Rule 11(c).
Accordingly, all of these documents are included in the Rule 11(c)
Supplement to the Printed Record on Appeal. The parties shall cite to
this document as “(R S p ____).” The grounds for excluding the
supplemental record documents from the printed record are as follows:
a. Defendant contends that the deposition exhibits are
not relevant to the proposed issues on appeal. Plaintiff contends
that the exhibits are relevant and are therefore a proper part of
the record. (See R S pp 101-10).
b. Defendant contends that because Plaintiff’s Reply to
Counterclaim was not filed until after the Notice of Appeal was
filed, it is not relevant to this appeal. Plaintiff contends that the
III. The Record on Appeal
Appellate Style Manual Page 35
Reply is necessary for an understanding of the issues on appeal
and is therefore a proper part of the record. (See R S pp 111-19).
3. All captions, signatures, headings of papers, certificates of
service, and documents filed with the trial court that are not necessary
for an understanding of the appeal may be omitted from the record,
except as required by Rule 9 of the North Carolina Rules of Appellate
Procedure.
4. The parties have undergone a reasonable search for
duplicative or substantially similar documents in the record and in the
Rule 9(d)(2) documentary exhibits. For voluminous duplicates, a slip
sheet has been inserted into the record or into the Rule 9(d)(2)
documentary exhibits indicating where in the record the exhibit is set
forth in its entirety.
5. The portions of the deposition of Wyle E. Coyote (Vol. 1,
pages 10-45) that were submitted to the trial court in connection with
Plaintiff’s motion for summary judgment were in condensed format.
For ease of review, the parties include that deposition transcript in
“full-page” format with this printed Record on Appeal. The parties
stipulate that the full-page transcript is an accurate substitute for the
condensed transcript.
6. The parties stipulate that the following documents
constitute the agreed-upon Record on Appeal to be filed with the Clerk
of the Court of Appeals:
a. This printed Record on Appeal, consisting of pages 1
to 100;
b. The trial transcript described in the Statement of
Transcript Option (R p 7) , which will be submitted by the court
reporter upon receipt of a docket number for the appeal;
c. The deposition transcript described in the Statement
of Transcript (R p 7) (a paper copy of which is filed along with
this printed record);
III. The Record on Appeal
Appellate Style Manual Page 36
d. Rule 9(d)(2) documentary exhibits consisting of 150
pages, consecutively numbered and cited as “Doc. Ex. 1” through
“Doc. Ex. 150”; and
e. The Rule 11(c) “Supplemental Record on Appeal”
identified in stipulation 2, consisting of pages 101 to 119.
This 30th day of March, 2023.
For the Plaintiff-Appellant:
[Name of Counsel]
For the Defendant-Appellee:
[Name of Counsel]
III. The Record on Appeal
Appellate Style Manual Page 37
Notes on Stipulation of Service and Settlement of Record:
• Stipulations are useful for explaining how the record was settled and why parties are
filing certain items separately from the record, and both show compliance with the
Rules and allow clear identificatio
n of the status of material transmitted to the
appellate court. For example, items are now placed in the Rule 11(c) Supplement
because all parties do not agree to their inclusion in the record. The record should
readily identify those items. The simplest and clearest way to do that is through a
stipulation of settlement of the record.
• If the parties can stipulate to the contents of the record, the appellant may avoid the
inclusion of a certificate showing the service of the proposed record. It is sensible
and conventional, however, to recite the dates of serving the proposed record and
later actions leading to the settlement of the record, so the appellate court can
calculate compliance with the time limits. Rule 11 describes five different methods
for
settling the record and the time limits for those methods. The parties should
demonstrate in the stipulations page the settlement method they used.
•
Note that if neither party requests judicial settlement, the record is automatically
deemed settled upon expiration of the ten-day period. N.C. R. App. P. 11(c).
• The stipulations page also gives the parties an opportunity to memorialize aspects
of their agreement as to the construction of the record and to explain the same to
the appellate court. For example, the parties may elect to omit duplicative copies of
documents that appeared as attachments to multiple pleadings in the record. In
such instance, the parties may include a stipulation to explain that slip sheets will
appear instead of the duplicative cop
ies (see below for example). Likewise, the
parties may agree that depositions or exhibits should be cited in a certain format
and include a stipulation to that effect.
• Whether the record is settled by agreement or by judicial settlement, the appellant
must file the record with the appellate court within 15 days of settlement. N.C. R.
App. P. 12(a).
• On 19 December 2018, Rule 9(d)(2) was amended to only require the filing of one
copy of any Rule 9(d)(2) documentary exhibits rather than three copies as previously
required. The amended Rule became effective on 1 January 2019. See
19
December 2018 Order Amending the Rules of Appellate Procedure.
III. The Record on Appeal
Appellate Style Manual Page 38
[Optional: Sample Stipulation about Record Documents under Seal]
7. The parties to this appeal entered into an “Agreed
Confidentiality and Protective Order” (R p ___) in the course of the
litigation before the trial court below. Some of the exhibits considered
by the trial court in arriving at the Judgment now on appeal were
designated “Confidential” pursuant to that protective order.
Defendant filed a series of “Notices of Submission of Confidential
Documents to the Court” in the trial court, indicating that the exhibits
supporting their motions to dismiss would be submitted to the trial
court separately and not placed in the public court file. The parties
now agree to the following provisions regarding such documents for
purposes of this appeal:
a. All of Plaintiff’s exhibits submitted to the trial court
under seal are included in this Record on Appeal, designated as
Rule 9(d)(2) documentary exhibits, and consist of 50 pages,
including those marked Exhibits A through G. The Rule 9(d)(2)
documentary exhibits are being filed with this Court UNDER
SEAL.
b. The pages of the documentary exhibits have been
labeled “Doc. Ex. ____” and may be cited as such. One copy of
the documentary exhibits is being filed with this Court pursuant
to Rule 9(d)(2) of the North Carolina Rules of Appellate
Procedure.
c. The documentary exhibits are filed under seal and
transmitted to the Court in sealed envelopes. Those exhibits
subject to the protective order (including Exhibits A through G)
should not be made available to the public.
d. The parties may freely discuss, disclose, and cite in
their briefs and any other appellate filings the information
contained in the sealed Rule 9(d)(2) documentary exhibits,
provided that the parties do not reveal any account numbers,
other banking identification information, or any trade secret
information of Defendant.
III. The Record on Appeal
Appellate Style Manual Page 39
Notes on Sealing Documents:
• See below, under section VII(b) for more information regarding sealing documents
and a Rule 42 Checklist.
Notes on the Use of Slip Sheets When Omitting Documents:
•
The Rules impose a duty on counsel for all parties to ensure that the record on
appeal does not contain unnecessary documents. N.C. R. App. P. 9(b)(2).
•
The Court of Appeals has suggested that including "multiple copies of numerous
documents" may violate this duty. In Re: J.J., No. COA09-
577, 2009 N.C. App.
LEXIS 1538, *8 (N.C. App. Sept. 15, 2009) (unpublished).
• The Court of Appeals has also held, however, that counsel should make it clear to
the Court if and where in the record any duplicative documents have been omitted.
"At the place in the record in which a document was omitted, counsel should have
included a notation of that fact. In other words, if a document had multiple
attachments, counsel should have included a page listing the attachments that were
omitted and referring to the pages in the record on appeal where copies of those
documents could be found." Obo v. Steven B., 201 N.C. App. 532, 537, 687 S.E.2d
496, 499 (2009).
• To designate when the duplicative documents have been omitted from the record,
counsel may insert a "slip sheet" in place of omitted documents. For example, in a
case involving a lengthy will, the will may appear early in the record as an attachment
to the complaint. A party's later motion for summary judgment may reattach the will.
Instead of including the will twice, counsel might replace the second appearance of
the will with a slip sheet notifying the appellate court that the will was submitted as
an attachment to the motion but can be found in its entirety elsewhere in the record.
• An example of just such a slip sheet follows on the next page of this Style M
anual.
The motion for summary judgment itself would be included in full, but where the will
had appeared as Exhibit A, a slip sheet like that below would be included instead.
• Because the use of slip sheets is intended to streamline the record without making
it difficult for the appellate court to locate record documents, counsel should use
their own judgment as to whether it is sensible to use slip sheets to replace short
documents of only one or two pages.
III. The Record on Appeal
Appellate Style Manual Page 40
[Sample Slip Sheet for Omitted Document
in Printed Record or Supplement]
EXHIBIT A to Motion to Dismiss
Last Will and Testament of Bob Hope
Duplicate Copy Omitted.
Original set forth in its entirety on R pp 17-35.
III. The Record on Appeal
Appellate Style Manual Page 41
PROPOSED ISSUES ON APPEAL
Pursuant to Rules 10 and 9(a)(1) of the North Carolina Rules of
Appellate Procedure, Plaintiff-Appellant intends to present the
following proposed issues on appeal:
1. Did the trial court err in entering judgment for Defendant
following the close of all evidence?
2. Did the trial court err in its finding of fact No. 5 when it
was not supported by the evidence?
3. Did the trial court err in its conclusion of law No. 3?
Notes on Proposed Issues on Appeal:
• The 2009 amendments abolished the former practice of "assigning error" to limit the
scope of the appeal. In place of such assignments of error, the appellant (and, if
necessary, the appellee) now need only present "proposed issues on appeal" in the
record. Rule 10(b) explains that the proposed issues on appeal "are to facilitate the
preparation of the record on appeal and shall not limit the scope of the issues
presented on appeal in an appellant's brief." N.C. R. App. P. 10(b).
• Table 4 in Appendix C includes sample proposed issues on appeal. Each example
reads, "Did the trial court err in . . . ?" Unlike assignments of error, a proposed issue
on appeal need not state the "legal basis" for the error and is not binding on appeal.
• Nevertheless, it remains the best practice to identify and challenge here any findings
of fact that underlie a conclusion of law that the appellant has listed as a proposed
issue.
III. The Record on Appeal
Appellate Style Manual Page 42
Notes on the Rule 9(b)(5) Supplement to the Printed Record on Appeal:
• The appellant may argue issues in its brief that were not forecast in the "Proposed
Issues" listed in the record. If the appellee believes that certain documents should
be included in the record to adequately respond to the new issues presented in the
brief, it can supplement the record at the briefing stage by serving a copy of those
documents on opposing counsel and filing one copy in a volume captioned "Rule
9(b)(5) Supplement to the Printed Record on Appeal." See N.C. R. App. P. 9(b)(5).
o Prior to 1 January 2019, the appellee was required to file three copies of the
Rule 9(b)(5) Supplement. Now, the appellee is only required to file one copy.
See 19 December 2018 Order Amending the Rules of Appellate Procedure.
• Any such supplement is generally due no later than the due date for the responsive
brief.
• The appellant might have reason to file a Rule 9(b)(5) Supplement as well, in cases
in which the appellee raised its own proposed issues on appeal. See N.C. R. App.
P. 9(b)(5), 10(c).
•
The Rules do not specify how the Rule 9(b)(5) Supplement should be numbered.
One option is to consecutively number the Rule 9(b)(5) Supplement after the last
page of the printed record on appeal (or Rule 11(c) Supplement, if any), and cite to
it: "(R S p ___)."
•
The Rule 9(b)(5) Supplement should usually include a separate index for the
convenience of the appellate court.
[Copy of any order ruling upon a pro hac vice motion]
Notes on Pro Hac Vice Motions:
• The Rules require that any order ruling upon a motion to appear pro hac vice be
included in the record here. See N.C. R. App. P. 9(a)(1)(n), (a)(2)(j), (a)(3)(m).
• If a motion to appear pro hac vice has been filed but not ruled upon at the time the
record is filed, the record shall include a statement that such a motion is pending
and the date that motion was filed.
III. The Record on Appeal
Appellate Style Manual Page 43
IDENTIFICATION OF COUNSEL FOR THE APPEAL
For the Appellant:
[LAW FIRM NAME, if any, and
only if counsel is retained and not
appointed]
[Name of Counsel]
[Counsel’s bar number]
[Counsel’s telephone number]
[Counsel’s email address]
[Name of Co-Counsel, if applicable]
[Co-Counsel’s bar number]
[Co-Counsel’s telephone number]
[Co-Counsel’s email address]
[Firm Address]
For the Appellee:
[LAW FIRM NAME, if any, and
only if counsel is retained and not
appointed]
[Name of Counsel]
[Counsel’s bar number]
[Counsel’s telephone number]
[Counsel’s email address]
[Name of Co-Counsel, if applicable]
[Co-Counsel’s bar number]
[Co-Counsel’s telephone number]
[Co-Counsel’s email address]
[Firm Address]
Note on Identification of Counsel for the Appeal:
• Rule
9(b)(4) and Appendix B require that the record identify the names, office
addresses, telephone numbers, State Bar numbers, and e-
mail addresses of
counsel of record for all parties to the appeal.
III. The Record on Appeal
Appellate Style Manual Page 44
[Certificate of Service of Proposed Record on Appeal]
[Certificate of Service of Final Record on Appeal]
Note on Filing and Serving Papers:
•
Rule 26 describes the process of filing and serving papers in the Appellate Division.
There are strict deadlines to be met in filing the record on appeal and in filing and
serving briefs and other papers. Due to the varieties of deadlines and service
methods, practitioners should consult Rule 26.
III. The Record on Appeal
Appellate Style Manual Page 45
III(b). A Typical Printed Record on Appeal in a
Criminal Case
III. The Record on Appeal
Appellate Style Manual Page 46
No. ___________ TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
***************************************
STATE OF NORTH CAROLINA
v.
[Defendant’s Name as it appears
in Final Judgment],
Defendant.
From Avery County
[Case Number as it appears
in Final Judgment]
***********************************
PRINTED RECORD ON APPEAL
***********************************
INDEX
Organization of Trial Court ............................................ 1
Warrant [filed 30 April 2022] ......................................... 2
Indictment [filed 4 May 2022] ........................................ 2
Arraignment and Plea [dated 18 May 2022] .................. 2
Statement of Transcript Option ..................................... 3
Exhibit Log, trial............................................................. 4
Jury Instructions [given 1 December 2022] ................... 5
Omitted Jury Instruction ............................................... 5
Verdict Sheet [entered 1 December 2022] ...................... 5
Prior Record Level Worksheet [submitted 1 December
2022] ...................................................................... 5
Judgment and Order of Commitment [entered 2
December 2022] .................................................... 5
Notice of Appeal [filed 10 December 2022] .................... 6
Appeal Entries ................................................................ 6
Stipulations Settling Record on Appeal ......................... 8
III. The Record on Appeal
Appellate Style Manual Page 47
Proposed Issues on Appeal ............................................. 9
Identification of Counsel for the Appeal ...................... 10
Certificate of Service of Proposed Record on Appeal ... 11
Certificate of Filing and Service of Settled Record on
Appeal ................................................................. 12
Notes on Cover Page of Printed Record on Appeal:
• The case number ("No.") in the top left-hand corner is left blank. See N.C. R. App.
P. Appendix B. The Clerk's office will assign a number when the record is filed, and
it will appear in the printed record on appeal.
o In some circumstances, one or both parties will have filed a motion (e.g., for
extension of time) or a petition (e.g.,
for writ of supersedeas) before the
record on appeal has been filed. In those situations, the Clerk's office will
have assigned a temporary case number, designated with a "P" (e.g., "COA
09-P100").
o This "P number" will not correspond to the docket number later assigned to
the appeal.
o Many "P number" documents should be included in the subsequently filed
record on appeal under Rule 9, including orders extending time and orders
disposing of a petition for writ of supersedeas or certiorari.
•
The Judicial District from which the case arises should be listed in the top right
corner. See
N.C. R. App. P. Appendix B. Note that the Judicial Districts were
realigned in 2019. The proper Judicial District can be retrieved here.
• To the right of the parties'
names should appear the county from which the case
comes and the indictment or docket numbers of the case below. The county name
stays on all subsequent documents, but after the case is assigned its own case
number by the appellate court, the trial docket number is dropped from subsequent
filings. See N.C. R. App. P. Appendix B.
• Any new typed material within the Printed Record (e.g., Statement of Organization
of the Trial Court”) “should be single-
spaced, with double spaces between
paragraphs.” N.C. R. App. P. Appendix B. Comparatively, the body of the notice of
appeal, appellate petitions, motions, briefs, and responses should be double
spaced. Id.
• Generally, margins for the non-index pages in the record on appeal are 1-inch all
around. See
N.C. R. App. P. Rule 26(g)(1). Any new typed material should be
single-spaced. See N.C. R. App. P. Appendix B.
• Index entries, on the other hand, are indented 0.75-inch from both standard 1-inch
margins (or, put another way, the index line has margins of 1.75 inches from each
side, yielding a 5-inch line in the middle). See N.C. R. App. P. Appendix B.
• Though not required, it is helpful to the a
ppellate courts to provide additional
explanatory material in the index entries (e.g., date of filing or entry). One way to
include such explanatory information is to present the added material in brackets,
as shown in the sample index above.
III. The Record on Appeal
Appellate Style Manual Page 48
ORGANIZATION OF TRIAL COURT
This case came on for trial before the Honorable Julie Smith at
the 30 November 2022 session of Criminal Superior Court of Avery
County. Mr. Doe was tried by jury on one count of first-degree murder
and one count of discharging a firearm in city limits. The jury
convicted Mr. Doe of both charges. The trial court consolidated the
charges and sentenced Mr. Doe to a sentence of life in prison without
parole on 2 December 2022. Mr. Doe filed and served written notice
of appeal on 3 December 2022.
The record on appeal was filed in the Court of Appeals on [dated
e-filed].
Notes on Statement of Organization of Trial Court:
• The statement of organization of trial court should be marked page "- 1 -". No "inside
caption"—that is, a repeat of the case number, court information, and party names—
is required for the record on appeal.
• The Statement of Organization of Trial Court is prescribed by Rule 9(a)(3)(b), which
states "[t]he printed record
in criminal actions shall contain . . . a statement
identifying the judge from whose judgment or order appeal is taken, the session at
which the judgment or order was rendered, or if rendered out of session, the time
and place of rendition, and the party appealing."
• To find the session of court from which you are appealing, consult the cover page
of the trial transcript and the introductory paragraph of the order being appealed,
which often include such information.
III. The Record on Appeal
Appellate Style Manual Page 49
[Copy of warrant]
[Copy of indictment]
Note on Warrants and Indictments:
• Rule 9(a)(3)(c) states that "[t]he printed record in criminal actions shall contain . . .
copies of all warrants, informations, presentments, and indictments upon which the
case has been tried in any court."
[Copy of arraignment and plea]
STATEMENT OF TRANSCRIPT OPTION
Per Rules 7(b) and 9(c) of the North Carolina Rules of Appellate
Procedure, the transcript of the entire proceedings in this case, taken
by Jane Doe, Court Reporter, from 29 November 2018 through 1
December 2018, consisting of 199 pages, numbered 1–199, bound in
one volume, will be electronically filed by Jane Doe promptly once a
docket number is assigned to this appeal.
Testimonial evidence contained in the transcripts designated
above shall be presented in the transcript of trial in lieu of narrating
the evidence and other trial proceedings as permitted by Rule 9(c)(1).
The verbatim transcript pages designated above shall also be used to
present voir dire, statements and events at evidentiary and non-
evidentiary hearings, or other trial proceedings.
Also considered part of the record on appeal are all exhibits
offered or admitted into evidence, as well as any exhibits of the court.
III. The Record on Appeal
Appellate Style Manual Page 50
Notes on Statement of Transcript Option:
• Under Rule 9(a)(1)(e), the appellant has the option of setting forth a narration of the
proceedings below, per Rule 9(c)(1), or submitting a verbatim transcript of those
proceedings, per Rule 9(c)(2).
o
The narration option might be selected if a verbatim transcript cannot be
produced and such evidence is necessary to the appeal. Narration involves
producing a written summary of such evidence, which is then placed directly
in the record. If the parties cannot agree on the content of the narration, the
trial judge can settle the narration under Rule 11(c) upon timely request for
judicial settlement.
o If a verbatim transcript is used instead, the transcript is not included in the
printed record. Rather,
the printed record must include a statement
explaining that a verbatim transcript will be filed separately. See
N.C. R.
App. P. 9(a)(1)(e).
•
For criminal cases in which there is no order establishing the indigency of the
defendant, the defendant must contract for the transcription of the proceedings as
in civil cases. N.C. R. App. P. 7(a)(2).
•
See above, Section II (Transcript Contract and Documentation), for more
information regarding the requirements and process for ordering transcripts.
Notably, when indigency has been established in a criminal matter, the indigent
party is entitled to have the
clerk of the trial court order the transcript of the
proceedings on the party’s behalf. N.C. R. App. P. 7(c).
[Copy of applicable Exhibit Log(s)]
Notes on Exhibit Logs:
• Include a copy of all trial court "Exhibits/Evidence Log" forms that are relevant to the
appeal. The blank form (No. AOC-G-150) can be found here.
• For example, if the issues on appeal arise from a pretrial motion to suppress hearing
as well as issues arising from trial, then include a copy of both the "Exhibits Log,
motion hearing" and "Exhibits Log, trial."
III. The Record on Appeal
Appellate Style Manual Page 51
[If relevant to the appeal, include a copy of the transcript of the jury
charge given and a copy of any instruction proposed but omitted]
Notes on Jury Instructions:
• Rule 9(a) imposes additional requirements when the appellant seeks to challenge
the giving or omission of instructions to the jury. In such appeals, the appellant must
include "a transcript of the entire charge given; and identification of the omitted
instruction by setting out the requested instruction or its substance in the printed
record immediately following the instruction given." N.C. R. App. P. 9(a)(3)(f).
•
When the trial court issues a different instruction than the omitted instruction
requested, it may be useful to recapitulate the actual instruction given (after the
"entire charge" b
ut before the presentation of the omitted instruction) for ease of
comparison. That is, the record would present, in order:
o The entire jury charge;
o The particular instruction challenged; and, if applicable,
o The particular instruction requested but omitted.
[Copy of jury’s verdict sheet]
[Copy of post-verdict motions and rulings, if any and if relevant to the
appeal]
[Copy of the prior record level worksheet]
[Copy of the judgment]
III. The Record on Appeal
Appellate Style Manual Page 52
[Copy of Notice of Appeal or Transcript of Oral Notice]
Notes on the Notice of Appeal:
• "An appeal of right from a judgment of a superior court by any person who has been
convicted of murder in the first degree and sentenced to death shall be filed in the
Supreme Court. In all other criminal cases, appeal shall be filed
in the Court of
Appeals." N.C. R. App. P. 4(d).
• "Any party entitled by law to appeal from a judgment or order of a superior or district
court rendered in a criminal action may take appeal by” either “giving oral notice of
appeal at trial” or "filing a notice of appeal with the clerk of superior court and serving
copies thereof upon all adverse parties within fourteen days after entry of the
judgment or order or within fourteen days after a ruling on a motion for appropriate
relief made during the fourteen-
day period following entry of the judgment or order."
N.C. R. App. P. 4(a).
o
If a party orally notices his or her appeal, then include here a copy of the
relevant transcript pages documenting such oral notice.
• Note that criminal appeals from district c
ourt to superior court are governed by
sections 15A-1431 and -1432 of the North Carolina General Statutes. N.C. R. App.
P. 4(a)(2).
• For appeals of right from the Court of Appeals to the Supreme Court, the Notice of
Appeal is filed both with the Clerk of the Court of Appeals and with the Clerk of the
Supreme Court. N.C. R. App. P. 14(a).
•
"Service of copies of the notice of appeal may be made as provided in Rule 26."
N.C. R. App. P. 4(c).
[Copy of the Appeal Entries Form]
Note on the Appeal Entries Form:
•
The Appeal Entries form (sometimes called “appellate entries”) is a printed form
(AOC-CR-
350), which is available at
https://www.nccourts.gov/documents/forms/appellate-entries.
[Copy of the Appointment of Appellate Counsel, if applicable]
III. The Record on Appeal
Appellate Style Manual Page 53
[If applicable, a copy of any order entered at the trial court level
extending time to produce the transcript(s) or serve the proposed record
on appeal]
[If applicable, a copy of any order from the appellate court extending
time to file the proposed record on appeal, etc.]
Notes on Extensions of Time:
• Extensions of time relating to the transcript or the record on appeal may be included
here, because they relate to the "time limits relative
to the perfecting of the appeal."
N.C. R. App. P. 9(a)(1)(i), 9(a)(2)(h), 9(a)(3)(h). Alternatively, the parties may set
forth the relevant dates and extensions and stipulate that documents were timely
filed and served.
• The idea is to demonstrate compliance with the time limits of the Rules by showing
appropriate extensions of time at the trial court and, if necessary, the appellate
division, at this point in the printed record.
III. The Record on Appeal
Appellate Style Manual Page 54
STIPULATIONS SETTLING RECORD ON APPEAL
Counsel for the Defendant-Appellant and the State stipulate as
follows:
1. The proposed record on appeal was timely served on 15
February 2023.
2. The parties stipulate that the following documents
constitute the agreed-upon Record on Appeal to be filed with the Clerk
of the Court of Appeals:
a. This printed record, consisting of pages 1 to 57; and
b. The trial transcript described in the Statement of
Transcript Option, which will be submitted by the court reporter
upon receipt of a docket number for the appeal.
This _____ day of ______________, 2023.
For the Defendant-Appellant:
[Name of Counsel]
For the State:
[Name of Counsel]
III. The Record on Appeal
Appellate Style Manual Page 55
Notes on Stipulation of Service and Settlement of Record:
• Stipulations are useful for explaining how the record was settled and why parties are
filing certain items separately from the record, and both show compliance with the
Rules and allow clear identification of the status of material transmitted to the
appellate court. For example, items are now placed in the Rule 11(c) Supplement
because all parties do not agree to their inclusion in the record. The record should
readily identify those items. The simplest and clearest way to do that is through a
stipulation of settlement of the record.
• If the parties can stipulate to the contents of the record, you may avoid the inclusion
of a certificate showing the service of the proposed record. It is sensible and
conventional, however, to recite the dates of serving the proposed record and later
actions leading to the settlement of the record, so the appellate court can calculate
compliance with the time limits. Rule 11 describes five different methods for settling
the record and the time limits for those methods. You should demonstrate in the
stipulations page the settlement method you used.
•
Note that if neither party requests judicial settlement, the record is automatically
deemed settled upon expiration of the ten-day period. N.C. R. App. P. 11(c).
• The stipulations page also gives the parties an opportunity to memorialize aspects
of their agreement as to the construction of the record and to explain the same to
the appellate court. For example, the parties may elect to omit duplicative copies of
documents that appeared as attachments to multiple pleadi
ngs in the record. In
such instance, the parties may include a stipulation to explain that slip sheets will
appear instead of the duplicative copies (see below for example). Likewise, the
parties may agree that exhibits should be cited in a certain forma
t and include a
stipulation to that effect.
• Whether the record is settled by agreement or by judicial settlement, the appellant
must file the record with the appellate court within 15 days of settlement. N.C. R.
App. P. 12(a).
• As of 1 January 2019, the appellant is only required to file one copy of any Rule 9(d)
documentary exhibits rather than three copies as previously required.
III. The Record on Appeal
Appellate Style Manual Page 56
PROPOSED ISSUES ON APPEAL
1. Did the trial court err in denying Defendant’s request for
the jury to be instructed on self-defense?
2. Did the trial court err in denying Defendant’s request for
the jury to be instructed on the defense of accident?
Notes on Proposed Issues on Appeal:
• The 2009 amendments abolished the former practice of "assigning error" to limit the
scope of the appeal. In place of such assignments of error, the appellant (and, if
necessary, the appellee) now need only present "proposed issues on appeal" in the
record. Rule 10 explains that the proposed issues on appeal "are to facilitate the
preparation of the record on appeal and shall not limit the scope of the issues
presented on appeal in an appellant's brief." N.C. R. App. P. 10(b).
• Unlike assignments of error, a proposed issue on appeal need not state the "legal
basis" for the error and is not binding on appeal. Nevertheless, it remains the best
practice to identify and challenge here any findings of fact that underlie a conclusion
of law that the appellant has listed as a proposed issue.
III. The Record on Appeal
Appellate Style Manual Page 57
IDENTIFICATION OF COUNSEL FOR THE APPEAL
For the Defendant-Appellant:
[LAW FIRM NAME, if any, and only if
counsel is retained and not appointed]
[Name of Counsel]
[Counsel’s bar number]
[Counsel’s telephone number]
[Counsel’s email address]
[Name of Co-Counsel, if applicable]
[Co-Counsel’s bar number]
[Co-Counsel’s telephone number]
[Co-Counsel’s email address]
[Firm Address]
For the State:
[Name of Assistant District Attorney]
[Counsel’s bar number]
[Counsel’s telephone number]
[Counsel’s email address]
[Name of Current Attorney General]
Attorney General
[Attorney General’s bar number]
(919) 716-6400
[Attorney General’s email address]
P.O. Box 629
Raleigh, NC 27602-0629
Note on Identification of Counsel for the Appeal:
•
Rule 9(b)(4) and Appendix B require that the record identify the names, office
addresses, telephone numbers, State Bar numbers, and e-
mail addresses of
counsel of record for all parties to the appeal.
III. The Record on Appeal
Appellate Style Manual Page 58
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Proposed Record on Appeal
has been duly served by e-mail, properly addressed, as follows:
[Name and e-mail address of Counsel for the State]
This the 7th day of February, 2023.
[LAW FIRM NAME]
By: Electronically submitted
[Attorney 1’s Name (N.C. State Bar No.: #####)]
Attorney1@email.com
N.C. R. App. P. 33(b) Certification: I certify that
all of the attorneys listed below have authorized
me to list their names on this document as if
they had personally signed it.
[Attorney 2’s Name (N.C. State Bar No. #####)]
Attorney2@email.com
P.O. Box 12345
Raleigh, N.C. 27622
(919) 999-9999
Attorneys for Defendant-Appellant
III. The Record on Appeal
Appellate Style Manual Page 59
No. ___________ TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
***************************************
STATE OF NORTH CAROLINA
v.
[Defendant’s Name as it appears
in Final Judgment],
Defendant.
From Avery County
[Case Number as it appears
in Final Judgment]
********************************************************
CERTIFICATE OF FILING AND SERVICE
OF SETTLED RECORD ON APPEAL
********************************************************
I hereby certify that the Settled Record on Appeal has been filed
by sending it first-class mail to the following:
Mr. Daniel Horne
Clerk of Court, North Carolina Court of Appeals
P.O. Box 2779
Raleigh, NC 27602
I hereby certify that a copy of the Settled Record on Appeal has
been served on the State by sending it through first-class mail to the
following counsel:
[Name of Counsel for the State]
[Mailing Address of Counsel for the State]
III. The Record on Appeal
Appellate Style Manual Page 60
This the ____ day of ____________, 2023.
[LAW FIRM NAME]
By: Electronically submitted
[Attorney 1’s Name (N.C. State Bar No.: #####)]
Attorney1@email.com
N.C. R. App. P. 33(b) Certification: I certify that
all of the attorneys listed below have authorized
me to list their names on this document as if
they had personally signed it.
[Attorney 2’s Name (N.C. State Bar No. #####)]
Attorney2@email.com
P.O. Box 12345
Raleigh, N.C. 27622
(919) 999-9999
Attorneys for Defendant-Appellant
Note on Filing and Serving Papers:
•
Rule 26 describes the process of filing and serving papers in the Appellate Division.
There are strict deadlines to be met in filing the record on appeal and in filing and
serving briefs and other papers. Due to the varieties of deadlines and service
methods, practitioners should consult Rule 26.
III. The Record on Appeal
Appellate Style Manual Page 61
III(c). A Typical Printed Record on Appeal in a
Juvenile Case
III. The Record on Appeal
Appellate Style Manual Page 62
UNDER SEAL AND SUBJECT TO PUBLIC INSPECTION
ONLY BY ORDER OF A COURT OF THE APPELLATE
DIVISION
No. _____ TWENTY-FOURTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
***************************************
In the Matter of:
A.B.C.
a minor child.
From Avery County
[Case Number as in Final
Judgment or Order on Appeal]
*************************
PRINTED RECORD ON APPEAL
*************************
INDEX
Statement of Organization of Trial Court ..................... x
Petition to Terminate Parental Rights [filed 1
November 2022] .................................................... x
Summons in Proceeding for Termination of Parental
Rights [served 1 November 2022] ........................ x
Answer [filed 10 November 2022] ................................. x
Evidentiary Exhibits [submitted 1 December 2022] .... x
Judgment Terminating Parental Rights [filed 3
December 2022] .................................................... x
Notice of Appeal [filed 5 December 2022] ..................... x
Appeal Entries [filed 6 December 2022] ....................... x
Appointment of Appellate Counsel for Indigent Parent
[filed 21 December 2022] ...................................... x
Statement of Transcript Option .................................... x
Certificate of Delivery of Transcript ............................. x
Certificate of Settlement of Record on Appeal .............. x
[Appellant’s] Proposed Issues on Appeal ...................... x
III. The Record on Appeal
Appellate Style Manual Page 63
Identification of Appellate Counsel ............................... x
Certificate of Filing and Service of Settled Record [filed 1
February 2023] ..................................................... x
Notes on Procedures in Certain Cases Involving Juveniles:
•
Rule 3.1 provides accelerated deadlines and additional requirements in appeals
filed under N.C. Gen. Stat. § 7B-1001. See N.C. R. App. P. 3.1(d).
• Juvenile delinquency appeals are more similar to criminal appeals. See A Typical
Printed Record on Appeal in a Criminal Case, supra.
• Rule 42 requires parties to protect the identity of the juveniles involved in appeals
covered by Rule 3.1. These rules require that the juvenile's identity be referenced
only by the use of initials or pseudonyms in briefs, motions, and petitions.
•
If the parties choose to use a pseudonym, they must include a stipulation in the
record on appeal identifying which pseudonym corresponds to which juvenile. N.C.
R. App. P. 42(b).
• In such cases, a special notice must be provided at the top of the first page of any
document filed with the appellate court:
UNDER SEAL AND SUBJECT TO PUBLIC INSPECTION ONLY BY ORDER OF
A COURT OF THE APPELLATE DIVISION.
o If the document is included within another document, this notice must also
be displayed at the top of the first page of that other document.
o Non-documentary items filed with the appellate courts must be submitted in
an envelope or box that contains the same notice.
o This special notice helps the clerk identify which documents should not be
published on the appellate court's electronic filing site.
III. The Record on Appeal
Appellate Style Manual Page 64
III(d). Summary of Items Constituting the Record on
Appeal
ITEM
HOW TO SUBMIT
3
WHEN TO SUBMIT
Printed Record
Appellant submits printed record
electronically. See N.C. R. App. P.
12(a), 26(a). Will be reproduced by
appellate court in black and white. N.C.
R. App. P. 12(c).
Within 15 days after the record has
been settled. See N.C. R. App. P.
12(a). In juvenile cases, within 5
business days after the record has been
settled. See N.C. R. App. P. 3.1(d).
Rule 11(c) or
18(d)(3)
Supplement to the
Printed Record
Electronically. See N.C. R. App. P.
26(a).
With printed record. See N.C. R. App.
P. 12(a).
Rule 9(d)
Documentary
Exhibits
Electronically. See N.C. R. App. P.
9(d)(1), 26(a).
With printed record. See N.C. R. App.
P. 12(a).
Rule 9(d)
Oversized or
Tangible Exhibits
“Original exhibits and other original
items that have been settled as part of
the record on appeal may be relied on
by the parties in their briefs and
arguments, but they may not be
delivered to the appellate court without
the appellate court’s permission.” N.C.
R. App. P. 9(d)(2) (emphasis added).
Original exhibits and items “may not be
delivered to the appellate court without
the appellate court’s permission.” N.C.
R. App. P. 9(d)(2). If permitted, the
custodian “must promptly deliver” the
item(s) “to the clerk of the appellate
court in a manner that ensures its
security and availability for use in
further trial proceedings.” Id.
Deposition or
Administrative
Hearing
Transcripts
Electronically. See N.C. R. App. P.
26(a).
With printed record. See N.C. R. App.
P. 12(a).
Transcript of the
Trial Tribunal
Proceedings
Electronically. See N.C. R. App. P.
26(a). For appeals noticed on or after 1
January 2021, transcripts must be
submitted to the appellate court by the
appellant. For appeals noticed on or
before 31 December 2020, transcripts
are submitted to the appellate court by
the court reporter(s). See
17 November
2020 Order Amending the Rules of
Appellate Procedure.
With printed record. See N.C. R. App.
P. 12(a).
Rule 9(b)(5)
Supplement to the
Printed Record
Electronically. See N.C. R. App. P.
26(a).
Unless otherwise ordered, no later than
the filing of a response brief or within
time for filing responsive brief if none if
filed. N.C. R. App. P. 9(b)(5).
3
“Counsel must file documents in the appellate courts electronically at
https://www.ncappellatecourts.org
.” N.C. R. App. P. 26(a). “If a technical failure prevents counsel from
filing a document by use of the electronic-filing site, then the clerk of the appellate court may permit the
document to be filed in paper by hand delivery, mail, or fax.” Id. If a party is not represented by counsel,
then they are still “encouraged to file items in the appellate courts electronically,” but they are
alternatively permitted to “file items by hand delivery or mail.” Id.
III. The Record on Appeal
Appellate Style Manual Page 65
III(e). Typical Rule 9(d) Documentary Exhibits
Notes on Documentary Exhibits:
• Rule 9(d) allows for certain documentary exhibits to be presented to the appellate
court in a separate volume, often titled "Rule 9(d) Documentary Exhibits."
• If multiple exhibits are filed, a separate index must be included. An example of such
an index is provided below, after the printed record. Be sure that the index notes
the existence of any oversized or tangible exhibits (e.g., a firearm).
•
The Rule 9(d) Documentary Exhibits must be consecutively paginated. For
example, a collection of trial exhibits totaling 150 pages
might be set forth in a
volume of Rule 9(d) Documentary Exhibits, indexed, and numbered at the top
center, "Doc. Ex. 1" through "Doc. Ex. 150." The "Doc. Ex." numbering should
represent consecutive page numbers—not the underlying trial exhibit numbers.
• Briefs may cite simply to "Doc. Ex. 57" instead of, for example, "Plaintiff's Exhibit 9-
Attachments to Mr. Bell's Resident Admission Agreement, at page 3."
• Note, however, that the Rules alternatively allow for inclusion of discovery materials
(e.g., interrog
atories and answers, requests for admission) in the printed record
instead, or in the Rule 9(d) Supplement, at the option of the parties. See N.C. R.
App. P. 9(c)(4).
• Oversized and tangible exhibits may be included in the record in accordance with
Rule 9(d). Although only a single copy of each oversized or tangible exhibit must
be filed, it may be useful to include an additional, smaller copy of an oversized exhibit
in the printed record or a supplement, as appropriate, provided that the Rule 9(d)
Index makes clear that the oversized or tangible exhibit is also being submitted.
• The printed record on appeal is reproduced in black and white. One way to submit
a color document is to include it in the Rule 9(d) Supplement you prepare and submit
yourself. Regardless, be sure that any documents that were originally in color that
are included in the printed record remain readable when reproduced in black and
white. A color photo included in the printed record, for example, may just look like
a black rectangle to the appellate court.
III. The Record on Appeal
Appellate Style Manual Page 66
No. _____ TWENTY-FOURTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
[Case Number as in Final
Judgment or Order on Appeal]
***************************************
RULE 9(d) DOCUMENTARY EXHIBITS
***************************************
INDEX
Plaintiff’s Exhibit 1—Lionel Bell’s “Mental State
Examination” ........................................................ 1
Plaintiff’s Exhibit 2—Lionel Bell’s Rehabilitation
Services Speech-Language Pathology
Evaluation ............................................................. 9
Plaintiff’s Exhibit 5—Excerpts of Lionel Bell’s Medical
Records ................................................................ 14
Plaintiff’s Exhibit 9—Attachments to Mr. Bell’s
Resident Admission Agreement ......................... 55
Plaintiff’s Exhibit 10—X-Ray of Lionel Bell (reduced
exhibit) (oversize original of X-Ray also submitted
separately) .......................................................... 64
III. The Record on Appeal
Appellate Style Manual Page 67
- Doc. Ex. 1 -
COASTAL MEDICAL CENTER
Lionel Bell
123 Anywhere Lane
New Bern, North Carolina 28560
** MENTAL STATE EXAMINATION **
Lionel presents as a . . . .
Dr. Strangelove
IV. The Briefs
Appellate Style Manual Page 68
IV. The Briefs
Note on Fonts and Word Counts:
• The examples that follow are printed in a 14-point Century Schoolbook typeface, but
that is only one example of a permissible font. See N.C. R. App. P. 26(g)(1).
• In the Court of Appeals (but usually not in the Supreme Court), there are word counts
to consider. See Rule 28(j) for the details.
• In the Court of Appeals and in direct appeals to the Supreme Court under Rule 3.1,
you also must include a Certificate of Compliance (as shown in the example after
the signature block at the end of the brief).
Notes on the Use of Acronyms and Abbreviations:
•
The use of acronyms and abbreviations that are not in common use can be
distracting and hinder the clarity of an appellate brief, and the practice is therefore
discouraged. See, e.g., Hon. Alex Kozinski, The Wrong Stuff, 1992 BYU L. Rev.
325, 328 (1992).
• When the use of acronyms or abbreviations is appropriate, each term should be fully
spelled out first, before the acronym or abbreviation is introduced.
• The use of short names for parties (using common vernacular)
can make an
appellate brief more readable, as compared to either the use of generic party
designations or lengthy and unfamiliar acronyms. For instance, the "Virginia
Polytechnic Institute and State University" might be referred to as "Virginia Tech" or
"the University," rather than "Plaintiff-Appellant" or "VPI&SU."
• A concept, such as "the Northeastern Urban Hydro-Electrical Power Plant Upgrade
Project," might be referred to with a plain-English descriptor, such as "the Project,"
rather than "the NUHEPPUP."
•
Finally, acronyms that are commonly used in one forum can constitute jargon in
another. For example, the Federal Energy Regulatory Commission may be known
as "FERC" to attorneys who regularly practice energy law, but it might be referred
to as "the Commission" in an appellate brief.
IV. The Briefs
Appellate Style Manual Page 69
IV(a). A Typical Appellant’s Brief
Note on Reviewing Examples of the Appellant’s Brief and the Appellee’s Brief
• Although this Style Manual provides examples of both an appellant’s brief and an
appellee’s brief, the Committee encourages practitioners to review both examples,
as the comment boxes in each example may provide information that is applicable
to all briefs but may not be reiterated in both examples.
Notes on Deadlines for Filing and Serving the Appellant's Brief:
• The due date for the appellant's brief varies slightly depending on the type of case:
o Prior to 1 January 2019, the appellant's brief was generally due 30 days after
the date that the clerk's office mailed the printed record to the parties. See
N.C. R. App. 13(a)(1) (2017), reprinted at 369 N.C. 763, 804. However, Rule
13(a)(1) was amended to now require that the appellant's brief be filed with
the clerk of the appellate court and served on the parties within 30 days "after
the record on appeal has been filed with the appellate court." N.C. R. App.
P. 13(a)(1).
o In death penalty cases, the appellant's brief must now be filed with the Clerk
of the Supreme Court and served upon the parties within 60 days after the
record on appeal has been filed with the Supreme Court. N.C. R. App. P.
13(a)(2).
•
Counsel must file briefs in the appellate courts electronically. N.C. R. App. P. 26(a).
A brief is considered filed when it is received by the electronic-filing site. N.C. R.
App. P. 26(a). A person who is not represented by counsel is encouraged to file
briefs in the appellate courts electronically but may file by hand delivery or mail.
N.C. R. App. P. 26(a). A brief is filed by hand delivery when it is received by the
clerk, and a brief filed by mail is deemed filed on the date of mailing, as evidenced
by the proof of service. N.C. R. App. P. 26(a).
•
Before filing the appellant's brief, "[t]he appellant must complete an Appeal
Information Statement using the electronic-fili
ng site at
https://www.ncappellatecourts.org/." N.C. R. App. P. 41.
• "If an appellant fails to file and serve a brief within the time allowed, the appeal may
be dismissed on motion of an appellee or on the court's own initiative." N.C. R. App.
P. 13(c).
IV. The Briefs
Appellate Style Manual Page 70
No. COA17-123 TWENTY-FOURTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
***********************************
PLAINTIFF-APPELLANT’S BRIEF
***********************************
Notes on the Cover Page of the Appellant's Brief:
• The caption of the appellant's brief for the most part follows the format of the caption
of the record on appeal. Note, however, that the right-hand side includes the name
of the county from which the case is venued
but not the indictment or docket
numbers of the case below. See N.C. R. App. P. Appendix B.
• Briefs filed in the Supreme Court of North Carolina in a case previously heard and
decided by the Court of Appeals should be entitled "New Brief" (e.g., "Plaintiff-
Appellant's New Brief"). See N.C. R. App. P. Appendix B.
IV. The Briefs
Appellate Style Manual Page 71
INDEX
TABLE OF CASES AND AUTHORITIES .................... ii
ISSUE[S] PRESENTED ................................................ 1
STATEMENT OF THE CASE ....................................... 2
STATEMENT OF THE GROUNDS FOR APPELLATE
REVIEW ............................................................... 4
STATEMENT OF THE FACTS ..................................... 5
ARGUMENT .................................................................. 7
I. STANDARD OF REVIEW .................................... 7
II. THE TRIAL COURT ERRED IN DENYING
DEFENDANT’S MOTION TO SUPPRESS
DEFENDANT’S INCULPATORY
STATEMENT BECAUSE IT WAS THE
PRODUCT OF AN ILLEGAL DETENTION ....... 8
CONCLUSION .............................................................. 9
CERTIFICATE OF COMPLIANCE ............................ 11
CERTIFICATE OF SERVICE ..................................... 12
APPENDIX:
Excerpts from direct examination of
Ms. Jones ................................................. App. 1-14
Excerpts from cross examination of
Mr. Smith ............................................... App. 15-19
N.C. Gen. Stat. § 15A-221 (2017) ........................ App. 20
ADDENDUM
Notes on the Index to Briefs:
• Index entries are indented 0.75-inch from both standard 1-
inch margins (or, put
another way, the index line has margins of 1.75 inches from each side, yielding 5-
inches of content in the middle). See N.C. R. App. P. Appendix B.
• Unlike the record on appeal index, the ALL-
CAPS typography is optional in an
appellate brief index. Also, some practitioners (and the examples in the Appendix
of the Rules) use dot leaders (". . . .") to the page numbers.
IV. The Briefs
Appellate Style Manual Page 72
TABLE OF CASES AND AUTHORITIES
Cases:
Dunaway v. New York, 442 U.S. 200 (1979) ............... 18
State v. Perry, 298 N.C. 502,
259 S.E.2d 496 (1979) ........................................... 9
State v. Reynolds, 298 N.C. 380,
259 S.E.2d 843 (1979) ......................................... 13
Statutes:
N.C. Gen. Stat. § 15A-221 (2017) ................................ 13
N.C. Gen. Stat. § 15A-245 (2017) ................................ 11
Rules:
N.C. R. App. P. 34 .......................................................... 9
Other Authorities:
U.S. Const. amend. IV ................................................. 14
N.C. Const. art. VI ....................................................... 18
Notes on Table of Cases and Authorities:
• All documents with 10 or more pages, except the record on appeal, must contain a
table of authorities. N.C. R. App. P. 26(g)(2).
• As with the Index, the Table of Cases and Authorities section should have margins
of 1.75 inches from each side, yielding 5 inches of content in the middle.
• Cases, arranged alphabetically, come first; followed by constitutional provisions and
statutes, each arranged numerically; then regulations and other authorities. See
N.C. R. App. P. Appendix B. Omit pincites in this table.
• Citations should follow the latest edition of
The Bluebook: A Uniform System of
Citation. See N.C. R. App. P. Appendix B.
• A citation in a brief to an unpublished decision is disfavored. If a party does cite to
an unpublished decision, they must serve a copy of the decision on all other parties
in the case and on the court to which the citation is offered. One easy way to
accomplish that service is to attach the unpublished decision to the brief in which it
is cited, as an "Addendum." See N.C. R. App. P. 30(e).
o Note: The Appendix and the Addendum
serve separate purposes. The
Appendix is governed by Rule 28(d) and contains certain materials for the
appellate court's ease of reference. The Addendum
is governed by Rule
30(e) and is used only to submit unpublished opinions to the court.
IV. The Briefs
Appellate Style Manual Page 73
No. COA17-123 TWENTY-FOURTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
***********************************
PLAINTIFF-APPELLANT’S BRIEF
***********************************
ISSUES PRESENTED
I. Did the trial court err in admitting a
hearsay statement made to a non-
treating physician when the
physician’s examination was made
solely for the purpose of testimony at
the trial of the case?
II. Was the trial court’s award of attorney
fees to the prevailing party in a
contempt proceeding contrary to North
Carolina law governing contempt?
IV. The Briefs
Appellate Style Manual Page 74
Notes on the Issues Presented Section:
•
Unlike the record on appeal, briefs require an "inside caption" before the issues
presented. N.C. R. App. P. Appendix E. That is, the case number, parti
es, and
document title are repeated here.
• The Issues Presented section, like the rest of the brief, has margins of 1
inch all
around.
• The Issues Presented should be single-spaced.
• Some practitioners type the Issues Presented in ALL CAPS.
• If the Issues Presented continue past the first page, then immediately follow them
with the Statement of the Case heading; otherwise, start the Statement of the Case
at the top of the second page. N.C. R. App. P. Appendix E.
Note on Page Numbering and Margins:
• Note the page numbering at the top is flanked by dashes, and there is a 1-inch
margin all around. Use double spacing for the text and triple spacing before the
section headings ("Statement of the Facts," etc.).
IV. The Briefs
Appellate Style Manual Page 75
STATEMENT OF THE CASE
Plaintiff commenced this trespass action by the filing of a
complaint and issuance of summons on 1 January 2022. (R p 3).
Defendant moved to dismiss the action on 21 January 2022. (R p
4). The Honorable John Marshall, Avery County Superior Court
Judge presiding, heard arguments on the motion to dismiss on 1
April 2022. (T pp 1-19). A judgment and order dismissing the case
was entered 10 May 2022. (R pp 9-14). Plaintiff filed and served
notice of appeal on 8 June 2022. (R pp 19-24). A transcript of the
1 April 2022 hearing was ordered on 14 June 2023 and delivered 1
August 2022. (R pp 97-101). The time to serve the proposed record
was extended by the trial division until 15 September 2022. (R p
102). The record was settled by stipulation on 1 November 2022,
filed in the Court of Appeals on 13 November 2022, and docketed
15 November 2022. (R pp 109-11).
Notes on Statement of the Case:
• The Statement of the Case recites the procedural steps and dates that got the case
to the appellate court. It is usually quite short. The appellee's brief need not have a
Statement of the Case.
• The North Carolina appellate courts use the date style shown above
(e.g., "14
December 2018").
IV. The Briefs
Appellate Style Manual Page 76
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
Judge Marshall’s summary judgment order, dismissing all
Plaintiff’s claims, is a final judgment, and appeal therefore lies to
the Court of Appeals pursuant to N.C. Gen. Stat. § 7A-27(b).
Notes on the Statement of the Grounds for Appellate Review:
• The Statement of Grounds for Appellate Review is a requirement for the appellant's
brief. N.C. R. App. P. 28(b)(4). The Rules require the appellant to provide an
explanation of the grounds for review of an interlocutory appeal.
• In the Statement of the Grounds for Appellate Review, the appellant must state
whether the appealed order is interlocutory or a final judgment on the merits. "An
appeal is interlocutory when noticed from an order entered during the pendency of
an action, which does not dispose of the entire case and where the trial court must
take further action in order to finally determine the rights of all parties involved in the
controversy." Beroth Oil Co. v. N.C. Dep't of Transp., 256 N.C. App. 401, 410, 808
S.E.2d 488, 496 (2017).
• "While an interlocutory appeal may be allowed in exceptional cases, [the appellate
court] must dismiss an interlocutory appeal for lack of subject-
matter jurisdiction,
unless the appellant is able to carry its burden of demonstrating that the order from
which he or she seeks to appeal is appealable despite its interlocutory nature." C.
Terry Hunt Indus., Inc. v. Klausner Lumber Two, LLC, 255 N.C. App. 8, 11
, 803
S.E.2d 679, 682 (2017) (internal quotations omitted).
• The two most common routes to appellate jurisdiction over interlocutory appeals in
civil matters are "(1) the trial court certified the order for immediate review under
North Carolina Rule of Civil Procedure 54(b), or (2) the order affects a substantial
right that would be lost without immediate review." Foster v. Crandell, 181 N.C. App.
152, 160, 638 S.E.2d 526, 532 (2007).
•
For more information regarding appeals from interlocutory orders, consider
consulting the Committee's Guide to Appealability of Interlocutory Orders.
IV. The Briefs
Appellate Style Manual Page 77
[ALTERNATIVE OPTION IN CIVIL MATTERS]
Judge Marshall’s partial summary judgment order,
dismissing Plaintiff’s negligence claim based on statute of
limitations grounds, is a final disposition of that claim. Other
claims remain outstanding, so this order is interlocutory. It is
appropriate, however, to pursue the appeal of this order now
because Judge Marshall’s ruling affects a substantial right of the
plaintiff, as described in N.C. Gen. Stat. §§ 1-277, 7A-27(d)(1), in
that [describe the facts and law that support a “substantial right”
determination by the appellate court].
Notes on Interlocutory Appeals on "Substantial Rights" Grounds:
•
If you are appealing an interlocutory order or judgment on "substantial rights"
grounds, consider the annotations to N.C. Gen. Stat. §§ 1-277 and 7A-27 for what
the courts have deemed "substantial rights" and tailor your statement accordingly.
• It is generally insufficient to simply assert that the appellant's substantial rights have
been affected without providing an explanation of the facts and law demonstrating
it. See, e.g., Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 444 S.E.2d
252 (1994).
• For more information regarding interlocutory appeals on substantial rights grounds,
see the Committee's Guide to Appealability of Interlocutory Orders.
IV. The Briefs
Appellate Style Manual Page 78
[ALTERNATIVE OPTION IN CIVIL MATTERS]
Judge Marshall’s partial summary judgment order dismissing
Plaintiff’s negligence claim on the statute of limitations grounds is
a final disposition of that claim. Other claims remain outstanding.
Judge Marshall’s order contains a finding, pursuant to Rule 54(b)
of the North Carolina Rules of Civil Procedure, that there is no just
reason for delaying the appeal of the order.
Notes on Civil Interlocutory Appeals via Rule 54(b) Certification:
• Note that Rule 54(b) of the North Carolina
Rules of Civil Procedure expressly
requires a final judgment as prerequisite for appeal. However, appellate review is
also available if the order is in fact a final judgment on one or more, but fewer than
all, claims or parties, and the trial court certifies under Rule 54(b) that there is no
just reason for delaying the appeal. Sharpe v. Worland
, 351 N.C. 159, 162, 522
S.E.2d 577, 579 (1999). "When the trial court certifies its order for immediate appeal
under Rule 54(b), appellate review is mandatory." Id.
•
However, the trial court may not, by certification, render its order immediately
appealable if it is not a final judgment. See James River Equip., Inc. v. Tharpe's
Excavating, Inc., 179 N.C. App. 336, 340, 634 S.E.2d 548, 552-53 (2006).
• Thus, if there is some doubt that the order is in fact a final judgment on one or more
claims or parties, practitioners should proceed with caution and offer an alternative
basis for jurisdiction (e.g., that the decision affects a substantial right). See id.
IV. The Briefs
Appellate Style Manual Page 79
STATEMENT OF THE FACTS
Plaintiff is the owner of property in the town of Canton, North
Carolina. (R pp 4-6). His property adjoins an unopened private
street known as East Street. (R p 5). [Continue recitation of facts.]
Notes on Statement of the Facts:
• The appellant's brief must contain a "full and complete" and "non-argumentative"
Statement of the Facts that are important to understanding the issues argued in the
brief. N.C. R. App. P. 28(b)(5). Long quotations from the transcript or the record
are discouraged, but accurate references to the place where the facts can be found
are required.
• The appellee's brief need not contain a Statement of the Facts unless the appellee
disagrees with the appellant's Statement of the Facts.
• Sometimes the appellee will include a Statement of the Facts that just adds some
facts to the appellant's recitation.
• It is better to make the Statement of the Facts coherent (by weaving the testimony
of the various witnes
ses together or by tying them by time or subject) than to
mechanically recite what each witness said. If there is a conflict in the evidence on
an important point, recite first the evidence on one side, then recite the evidence on
the other side.
• The Statement of the Facts must be scrupulously accurate and include even those
facts that you will later discuss further in the Argument section. If you leave out a
harmful fact, your credibility may suffer.
• The 2009 amendments made clear that there should be no period after a "p" or a
"pp" in citations to the record, transcript, etc. See N.C. R. App. P. 9(b)(4).
• The Rules do not expressly state how to punctuate record citations. Rule 9(b)(4)
requires record citations to "be cited as '(R p ___).' " Rule 9(b)(4) does not indicate
whether the closing period is part of the citation or just the closing period for the
sentence. Appendix B, on the other hand, shows record citations without a closing
period: (R pp 38-
40) In any event, be certain to use consistent formatting
throughout the brief.
IV. The Briefs
Appellate Style Manual Page 80
ARGUMENT
I. THE TRIAL COURT ERRED IN GRANTING
DEFENDANT’S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT.
Notes on Argument Headers:
• Argument headers, or issues, must appear in ALL CAPS. See
N.C. R. App. P.
Appendix E.
•
Argument headers used to require citation to the corresponding assignments of
error. The 2009 Amendments eliminated the need for such citation.
A. Standard of Review
Because Defendant challenged the jury’s findings by its
motion for judgment notwithstanding the verdict, the facts are
viewed in the light most favorable to Plaintiff, the non-moving
party. Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133,
138 (1991). “[I]f there is more than a scintilla of evidence
supporting” Plaintiff’s claim for damages, then the trial court erred
in granting Defendant’s motion. Mace v. Pyatt, 203 N.C. App. 245,
252, 691 S.E.2d 81, 88 (2010).
IV. The Briefs
Appellate Style Manual Page 81
Notes on Standard of Review:
•
Per Rule 28(b)(6), the appellant's brief must contain "a concise statement of the
standard(s) of review for each issue."
• Rule 28(b) provides two options for the location of the standard of review:
• (1) at the beginning of the discussions of each issue presented, in which case the
brief will present the standard of review at the beginning of each section of the
argument; or
•
(2) under a separate heading placed before the beginning of all sections of the
argument, in which case the brief will have a single s
eparate section labeled
"Standard of Review" placed immediately under the "Argument" caption.
• When an appeal presents multiple issues with multiple standards of review, the best
practice is to present the applicable standard of review at the
beginning of each
substantive section of the argument, as in the first option above.
•
The Court of Appeals publishes the "Legal Standards Database," a collection of
quotes from the leading North Carolina appellate decisions organized by topic. The
document
"is intended to provide illustrations of the wide variety of standards of
review, legal tests, and general statements of law employed at the N.C. Court of
Appeals."
B. Plaintiff incurred expenses in connection with
Defendant’s fraud that were found compensable by the
jury.
The trial court erred in granting Defendant’s motion for
judgment notwithstanding the verdict because there was ample
evidence introduced at trial that Plaintiff suffered direct economic
harm as a result of Defendant’s fraud. For example, Plaintiff
testified that she was required to pay the property tax bills on the
land as they came due in 2015 and 2016. (See, e.g., T pp 23-24
(“After [Defendant] forged the deeds, . . . I had no choice but to pay
the bills or risk foreclosure.”) [App. 1-2]). Moreover, . . . .
IV. The Briefs
Appellate Style Manual Page 82
Notes on Argument:
• Subsection headings are set out as shown (indented 0.25 inch from the left margin
with 1-inch margins all around).
• Long quotations from a reported case or statute (more than three lines) are single-
spaced and indented 0.75 inch from each margin (making a 5-inch line). The citation
immediately follows the quotation, beginning at the regular left margin. See N.C. R.
App. P. Appendix B.
• Rule 28 and Appendix E require copies of certain materials (such as key transcript
pages, statutes, and rules) to be included in a separately paginated appendix to be
submitted with the brief. It is best practice to cross-reference those appendix pages
in the brief itself. For example, in the above text, the appendix to this brief contains
a copy of transcript pages 23 and 24, and the citation to those transcript pages in
the brief contains a cross-reference—[App. 1-2]—for the convenience of the court.
CONCLUSION
The Court of Appeals should reverse the trial court’s order
granting Defendant’s motion for judgment notwithstanding the
verdict and should remand the case with instructions for the trial
court to enter judgment consistent with the jury’s verdict.
Alternatively, the Court of Appeals should remand for a new trial
because the trial court erred in excluding Plaintiff’s evidence of
additional damages.
Respectfully submitted, this ____ day of ________, 2023.
Notes on Conclusion:
• For criminal cases, N.C. Gen. Stat. § 15A-1447 provides the various forms of relief
available on appeal.
• The Conclusion should state briefly and clearly the relief sought in the appeal. If
different errors yield different remedies, pray for relief in the alternative, as shown.
• There is no need to repeat a party's arguments here. See
N.C. R. App. P. 28(b)(6).
IV. The Briefs
Appellate Style Manual Page 83
[LAW FIRM NAME, if any, and only if
counsel is retained and not appointed]
By: Electronically submitted
[Name of Counsel]
Attorney for Plaintiff-Appellant
160 N. Main Street
Newland, NC 28786
(828) 456-1245
State Bar No. 12345
lawyer@lawfirm.com
Notes on Signing Briefs:
• If you want to orally argue a case, you have to sign the brief. See N.C. R. App. P.
33(a), Appendix B
. Having a colleague sign your name for you and initial the
signature does not count as a signature for purposes of Rule 33(a).
•
For electronic filers, the electronic signature is sufficient to allow the signatory to
orally argue the case.
• In indigent criminal cases, where the attorney is appointed, the firm name is omitted
(but the firm name may appear if the attorney is privately retained).
• In every case, counsel's printed name, e-mail address, phone number, post office
address, and state bar number are required. See N.C. R. App. P. 26(g)(3), Appendix
B.
IV. The Briefs
Appellate Style Manual Page 84
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 28(j) of the North Carolina Rules of
Appellate Procedure, counsel for Plaintiff certifies that the
foregoing brief, which was prepared using a 14-point proportionally
spaced font with serifs, is less than 8,750 words (excluding covers,
captions, indexes, tables of authorities, counsel’s signature block,
certificates of service, this certificate of compliance, and
appendixes) as reported by the word-processing software.
By: Electronically submitted
[Name of Counsel]
Notes on the Length of Briefs:
• The Certificate of Compliance is only applicable to briefs filed in the Court of Appeals
and in direct appeals to the Supreme Court under Rule 3.1. See N.C. R. App. P.
28(j).
• Otherwise, there are no length limitations for briefs in the Supreme Court.
• Footnotes and citations must be included in the word count. Note, however, that
the default setting of Microsoft Word does not include footnotes in its word count
feature. To account for footnotes, you will need to check box in the word count
dialog box to include textboxes, footnotes, and endnotes in your word count.
IV. The Briefs
Appellate Style Manual Page 85
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he served a copy of the
foregoing brief on counsel for Defendant by e-mail, addressed as
follows:
[Name and e-mail address of opposing counsel]
This the ____ day of ________, 2023.
By: Electronically submitted
[Name of Counsel]
Notes on Certificate of Service:
• Counsel must file documents in the appellate courts electronically. N.C. R. App. P.
26(a).
• When a document is filed electronically to the electronic-filing site, a certificate of
service is still required and should note the date of service, manner of service, and
names of the persons served. N.C. R. App. P. 26(c), (d).
IV. The Briefs
Appellate Style Manual Page 86
Contents of Appendix
Excerpts from direct examination of
Ms. Jones ................................................. App. 1-14
Excerpts from cross examination of
Mr. Smith ............................................... App. 15-19
N.C. Gen. Stat. § 15A-221 (2017) ........................ App. 20
Notes on Appendix:
• Following the brief is an appendix, which collects those portions of the transcript,
the statutes, and the regulations referred to in the brief. Not every brief will have an
appendix. If you directly quote the relevant material in the body of the brief, there is
no need to have an appendix of that same material. Consult Rule 28(d) for guidance
on when an appendix is required.
• The Appendix, which is reproduced "as is" and attached to the printed brief, allows
the judges to reference cited
material with ease. In some instances, it would be
more persuasive to just include the relevant material directly in the brief at the
appropriate point. At a certain point, though, the word-count limits for briefs in the
Court of Appeals might come into
play. Recall that there is no page limit for
appendices.
• It is improper for a party to attach to its brief "a document not in the record and not
permitted under N.C. R. App. P. 28(d) in an appendix to its brief." Horton v. New S.
Ins. Co., 122 N.C. App. 265, 268, 468 S.E.2d 856, 858 (1996); see also Citifinancial,
Inc. v. Messer, 167 N.C. App. 742, 748, 606 S.E.2d 453, 457 (2005) (Steelman, J.,
concurring).
• The Appendix must be preceded by a table of contents. The Rules usually refer to
t
he table of contents as an "Index," but Appendix E labels it "Contents of Appendix."
The table of contents is formatted just like any other index or table in the brief or
record: use a 5-inch line, indented 0.75 inches from each 1-inch regular margin.
• The page numbers on the right refer to the Appendix pages on which the material
appears. The 2009 Amendments eliminated any requirement that the table of
contents cross-reference the brief pages on which such material is cited. See N.C.
R. App. P. Appendix E.
• Note: The Appendix and the Addendum serve separate purposes. The Appendix is
governed by Rule 28(d) and contains certain materials for the appellate court's ease
of reference. The Addendum is governed by Rule 30(e) and is only used to submit
unpublished opinions to the court.
• One way to distinguish Appendix pages from the body of the brief is to number the
Appendix pages: "- App. 1 -", "- App. 2 -," etc. See N.C. R. App. P. Appendix E.
IV. The Briefs
Appellate Style Manual Page 87
IV(b). A Typical Appellee’s Brief
IV. The Briefs
Appellate Style Manual Page 88
No. COA17-123 TWENTY-FOURTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
***********************************
DEFENDANT-APPELLEE’S BRIEF
***********************************
Notes on Deadlines for Filing and Serving the Appellee's Brief:
• The appellee must file and serve his brief within 30 days after service of appellant's
brief (plus an additional three days if the appellant's brief was served by mail or by
email). N.C. R. App. P. 13(a)(1).
• In death penalty cases, the appellee must file and serve his brief within 60 days after
they receive service of appellant's brief. N.C. R. App. P. 13(a)(2).
• "If an appellee fails to file and serve its brief within the time allowed, the appellee
may not be heard in oral argument except by permission of the court." N.C. R. App.
P. 13(c).
IV. The Briefs
Appellate Style Manual Page 89
INDEX
TABLE OF CASES AND AUTHORITIES .................... ii
ARGUMENT .................................................................. 1
I. THE TRIAL COURT PROPERLY DIRECTED
VERDICT ON THE WIDTH OF THE
DRIVEWAY, BECAUSE THERE WAS
NO GENUINE ISSUE OF A MATERIAL
FACT CONCERNING IT. .................................... 1
CONCLUSION .............................................................. 2
CERTIFICATE OF COMPLIANCE .............................. 3
CERTIFICATE OF SERVICE ....................................... 4
APPENDIX
N.C. Gen. Stat. § 15A-221 (2017) ................. App. 1
N.C. Gen. Stat. § 15A-245 (2017) .............. App. 2-8
N.C. R. Civ. P. 10 .......................................... App. 9
N.C. R. App. P. 34 .................................. App. 10-13
U.S. Const. amend. IV ................................ App. 14
U.S. Const. amend. XI ................................ App. 15
N.C. Const. art. VI ...................................... App. 16
ADDENDUM
IV. The Briefs
Appellate Style Manual Page 90
TABLE OF CASES AND AUTHORITIES
Cases:
Cochran v. Keller, 84 N.C. App. 205,352 S.E.2d 458
(1987) .................................................................... 3
Thompson v. Umberger, 221 N.C. 178, 19 S.E.2d 484
(1942) .................................................................... 4
Zagaroli v. Pollock, 94 N.C. App. 46, 379 S.E.2d 653
(1989) .................................................................... 5
Statutes:
N.C. Gen. Stat. § 15A-221 (2017) ................................ 13
N.C. Gen. Stat. § 15A-245 (2017) ................................ 11
Rules:
N.C. R. Civ. P. 10 ........................................................... 4
N.C. R. App. P. 34 .......................................................... 9
Other Authorities:
U.S. Const. amend. IV ................................................. 14
U.S. Const. amend. XI ................................................. 15
N.C. Const. art. VI ....................................................... 18
IV. The Briefs
Appellate Style Manual Page 91
No. COA17-123 TWENTY-FOURTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
***********************************
DEFENDANT-APPELLEE’S BRIEF
***********************************
ARGUMENT
I. THE TRIAL COURT PROPERLY DIRECTED VERDICT ON
THE WIDTH OF THE DRIVEWAY, BECAUSE THERE WAS
NO GENUINE ISSUE OF A MATERIAL FACT
CONCERNING IT.
Plaintiff established that there was no genuine issue
concerning the width of the driveway easement and that the court
. . . [argument continues]
Note on Sections Unnecessary in Appellee’s Brief:
• The appellee’s brief may proceed directly to
the Argument, unless the appellee
disagrees with
the appellant’s Statement of the Facts, Statement of Grounds for
Appellate Review, or Standard of Review, or if appellee wishes to present additional
questions. See N.C. R. App. P. 28(c).
IV. The Briefs
Appellate Style Manual Page 92
Plaintiff described the width of the easement in 1973 as
follows:
We had a, it was a black-top drive. The
driveway was only like two lanes. It was, but
they were wide black-top lanes when we
bought that. I guess you’d call it the lip or
whatever of the driveway where we turned.
(T p 12).
Plaintiff identified photographs of. . . [argument continues]
Notes on Long Quotations:
• The above illustrates the method of including long quotations in the brief: indent 0.75
inch from each margin, and single space the material. See N.C. R. App. P. Appendix
B.
•
Important material should be quoted directly in the brief for persuasive purposes,
rather than merely including it in the Appendix to the brief.
CONCLUSION
The judgment of the trial court should be affirmed.
Respectfully submitted, this ____ day of ________, 2023.
[LAW FIRM NAME, if any, and only if
counsel is retained and not appointed]
By: Electronically submitted
[Name of Counsel (N.C. Bar No.)]
Attorney for Defendant-Appellee
245 S. Main Street
Newland, NC 28786
(919) 456-1245
lawyer@lawfirm.com
IV. The Briefs
Appellate Style Manual Page 93
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 28(j) of the North Carolina Rules of
Appellate Procedure, counsel for Defendant certifies that the
foregoing brief, which is prepared using a 14-point proportionally
spaced font with serifs, is fewer than 8,750 words (excluding covers,
captions, indexes, tables of authorities, counsel’s signature block,
certificates of service, this certificate of compliance, and
appendixes) as reported by the word-processing software.
Electronically submitted
[Name of Counsel]
Note on Certificate of Compliance:
• The Certificate of Compliance is only required for briefs filed in the Court of Appeals
and in direct appeals to the Supreme Court under Rule 3.1. See N.C. R. App. P.
28(j).
• Otherwise, there are no length limitations for briefs in the Supreme Court.
IV. The Briefs
Appellate Style Manual Page 94
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he served a copy of the
foregoing brief on counsel for Plaintiff by e-mail addressed as
follows:
[Name and e-mail address of opposing counsel]
This the ____ day of ________, 2023.
Electronically submitted
[Name of Counsel]
[Follow the brief with an appendix, if needed. See N.C. R. App. P.
28(d). For more information, refer to the note about appendixes
following A Typical Appellant’s Brief, supra.]
Notes on Filing and Serving Briefs:
• When a document is filed electronically on the appellate courts' e-filing website, the
document can be served by email, “by use of the other counsel’s correct and current
e-mail address(es).” N.C. R. App. P. 26(c).
•
Counsel must file briefs in the appellate courts electronically. N.C. R. App. P. 26(a).
A brief is considered filed when it is received by the electronic-filing site. Id. A
person who is not represented by counsel is encouraged to file briefs in the appellate
courts electronically but may file by hand delivery or mail. Id. A brief is filed by hand
delivery when it is received by the clerk, and a brief filed by mail is deemed filed on
the date of mailing, as evidenced by the proof of service. Id.
• “If an appellant fails to file and serve a brief within the time allowed, the appeal may
be dismissed on motion of an appellee or on the court’s own initiative.” N.C. R. App.
P. 13(c). Comparatively, “[i]f an appellee fails to file and serve its brief within the time
allowed, the appellee may not be heard in oral argument except by permission of
the court.” Id.
IV. The Briefs
Appellate Style Manual Page 95
IV(c). A Typical Memorandum of Additional
Authority
IV. The Briefs
Appellate Style Manual Page 96
No. COA17-123 TWENTY-FOURTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
**********************************************
PLAINTIFF-APPELLANT’S MEMORANDUM OF
ADDITIONAL AUTHORITY
**********************************************
Pursuant to Rule 28(g) of the North Carolina Rules of
Appellate Procedure, Plaintiff-Appellant submits the following
additional authority for the Court’s consideration in the above-
captioned case:
1. Smith v. Jones, ___ N.C. App. ___, 709 S.E.2d 886 (2019).
2. In re A.B.Q., ___ N.C. App. ___, 710 S.E.2d 1 (2019).
The cited cases concern the issue of standing. (See Plaintiff-
Appellant’s Br. at 9-12) (Issue I).
IV. The Briefs
Appellate Style Manual Page 97
Respectfully submitted, this ____ day of ________, 2023.
[LAW FIRM NAME, if any, and only if
counsel is retained and not appointed]
Electronically submitted
[Name of Counsel]
Attorney for Plaintiff-Appellant
160 N. Main Street
Newland, NC 28786
(828) 456-1245
State Bar No. 12345
lawyer@lawfirm.com
IV. The Briefs
Appellate Style Manual Page 98
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing
PLAINTIFF-APPELLANT’S MEMORANDUM OF ADDITIONAL
AUTHORITY has been served this day by e-mail, addressed as
follows:
[Names and e-mail addresses of counsel for all parties]
This the ____ day of _________, 2023.
Electronically submitted
[Name of Counsel]
Notes on the Memorandum of Additional Authority:
• Pursuant to Rule 28(g), a memorandum of additional authority may be
filed to bring to the court's attention authority not cited in the brief.
• A memorandum of additional authority should not include parenthetical
summaries or quotes from the cases set out in the memorandum. State
v. Cunningham, 140 N.C. App. 315, 317, 536 S.E.2d 341, 344 (2000).
• A memorandum of additional authority "may not be used as a reply brief
or for additional argument, but shall simply state the issue to which the
additional authority applies and provide a full citation of the authority."
N.C. R. App. P. 28(g).
•
Authorities not cited in the briefs or in a memorandum of additional
authority may not be cited and discussed in oral argument. Id.
• It remains the best practice and the strong preference of the appellate
courts for a memorandum of additional authority to be filed and served
several days prior to a scheduled argument. Nevertheless, a
memorandum of additional authority may also be filed and served after
oral argument, where appropriate.
V. Extraordinary Writs
Appellate Style Manual Page 99
V. Extraordinary Writs
V. Extraordinary Writs
Appellate Style Manual Page 100
V(a). A Typical Petition for Writ of Supersedeas
and Motion for Temporary Stay
V. Extraordinary Writs
Appellate Style Manual Page 101
Note on the Petition for Writ of Supersedeas:
•
“Application may be made to the appropriate appellate court for a writ of
supersedeas to stay the execution or enforcement of any judgment, order, or other
determination of a trial tribunal which is not automatically stayed by the taking of
appeal when an appeal has been taken, or a petition for mandamus, prohibition, or
certiorari has been filed to obtain review of the judgment, order, or other
determination; and (1) a stay order or entry has been sought by the applicant by
deposit of security or by motion in the trial tribunal and such order or entry has been
denied or vacated by the trial tribunal, or (2) extraordinary circumstances make it
impracticable to obtain a stay by deposit of security or by application to the trial
tribunal for a stay order.” N.C. R. App. P. 23(a)(1).
Note on the Petition for Temporary Stay:
• “Upon the filing of a petition for supersedeas, the applicant may apply, either within
the petition or by a separate filing, for an order temporarily staying enforcement or
execution of the judgment, order, or other determination pending decision by the
court upon the petition for supersedeas. If application is made by a separate filing,
it shall be filed and served in the manner provided for the petition for supersedeas
in Rule 23(c).” N.C. R. App. P. 23(e).
V. Extraordinary Writs
Appellate Style Manual Page 102
No. ___________ TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as it
appears in Final Judgment],
Defendant.
From Avery County
[Case Number as in Final
Judgment or Order on Appeal]
*********************************************
PETITION FOR WRIT OF SUPERSEDEAS AND
MOTION FOR TEMPORARY STAY
*********************************************
V. Extraordinary Writs
Appellate Style Manual Page 103
Notes on Petitions for Writ of Supersedeas and Motions for Temporary Stay:
• Consult Rule 23 and
Appendix D for the circumstances in which this petition is
appropriate.
• This sample petition focuses on the styles used in filing such a petition with the Court
of Appeals under Rule 23(a), to stay the execution or the enforcement of a judgment,
order, or other determination of a trial tribunal. Note that slightly different procedures
apply when you seek a stay of a Court of Appeals decision. See N.C. R. App. P.
23(b).
• When you have noticed an appeal from the order to be stayed, it is the best practice
to include a copy of the Notice of Appeal as an exhibit to your petition.
• If the motion is extraordinarily time-sensitive, you should consider alerting the Court
of Appeals to any such timing issues or "deadlines" early in the document.
• The petition number in the upper left corner is typically left blank, to be filled in by
the Court of Appeals. If the underlying appeal has already been docketed, you can
include the Court of Appeals case number here.
• Service of the Petition for Writ of Supersedeas triggers a ten-day response deadline
for any party to oppose it. See N.C. R. App. P. 23(d). In practice, it is common to
couple a Motion for Temporary Stay with the Petition for Writ of Supersedeas, so
the Court of Appeals has the option to stay the execution or the enforcement of the
judgment or order while the briefing and consideration on the Petition for Writ of
Supersedeas takes its course. See N.C. R. App. P. 23(e).
V. Extraordinary Writs
Appellate Style Manual Page 104
INDEX
TABLE OF CASES AND AUTHORITIES .................... ii
FACTS ............................................................................ 2
REASONS WHY WRIT OF SUPERSEDEAS SHOULD
ISSUE ................................................................... 3
I. DEFENDANTS ARE ENTITLED TO THE STAY
PURSUANT TO SECTION 1-289 OF THE
NORTH CAROLINA GENERAL STATUTES ..... 5
II. DEFENDANTS ARE LIKELY TO SUCCEED ON
THE MERITS OF THE APPEAL BECAUSE A
DISTRICT COURT DOES NOT HAVE THE
AUTHORITY TO ORDER A DISTRIBUTIVE
AWARD OF A CORPORATION. .......................... 7
MOTION FOR TEMPORARY STAY .......................... 11
CONCLUSION ............................................................ 13
VERIFICATION .......................................................... 14
CERTIFICATE OF SERVICE ..................................... 15
Notes on Index:
• Index entries are indented 0.75-inch from both standard 1-
inch margins (or, put
another way, the index line has margins of 1.75-inches from each side, yielding a 5-
inch line in the middle). See N.C. R. App. P. Appendix B.
• The petition only requires an index if it is ten pages or more in length. See id.
V. Extraordinary Writs
Appellate Style Manual Page 105
TABLE OF CASES AND AUTHORITIES
Cases
Barrett v. Barrett, 122 N.C. App. 185, 468 S.E.2d 264
(1996) .................................................................... 6
Estate of Nelson ex rel. Brewer v. Nelson, 179 N.C. App.
166, 633 S.E.2d 124 (2006) ................................... 9
Faught v. Faught, 50 N.C. App. 635, 274 S.E.2d 883
(1981) .................................................................... 7
Statutes
N.C. Gen. Stat. § 1-289 (2017) ........................... 5, 6, 7, 8
N.C. Gen. Stat. § 50-20 (2017) ............................. 4, 9, 10
Rules
N.C. R. App. P. 8 .................................................... 1, 7, 8
N.C. R. App. P. 23 .................................................... 1, 11
Other Authorities
Superseding and Staying Judgments: A National
Compendium, American Bar Association,
Chapter 36, “Superseding and Staying
Judgments in North Carolina” ......................... 6, 7
Notes on the Table of Authorities:
• If the petition is fewer than ten pages, this table may be omitted. See N.C. R. App.
P. Appendix B.
• If included, the format of the Table of Cases and Authorities is the same as any brief
(consult A Typical Appellant's Brief section, supra, for a fuller di
scussion on the
formatting).
V. Extraordinary Writs
Appellate Style Manual Page 106
No. ___________ TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as it
appears in Final Judgment],
Defendant.
From Avery County
[Case Number as in Final
Judgment or Order on Appeal]
*********************************************
PETITION FOR WRIT OF SUPERSEDEAS AND
MOTION FOR TEMPORARY STAY
*********************************************
TO THE HONORABLE COURT OF APPEALS OF NORTH
CAROLINA:
Defendant, pursuant to Rule 23 of the North Carolina Rules
of Appellate Procedure, respectfully petitions this Court to issue a
temporary stay and a writ of supersedeas. Following the 20 May
2017 entry of an order dividing the Johnsons’ marital estate by
equitable distribution, Defendants moved to stay the equitable
distribution pending appeal of the order. The Honorable Meredith
Adams of Avery County Superior Court denied Defendant’s motion
for stay in an order dated 25 June 2022. Defendant now petitions
V. Extraordinary Writs
Appellate Style Manual Page 107
this Court to stay enforcement of the equitable distribution order,
and in support of this petition show the following:
FACTS
This lawsuit stems from an equitable distribution of a
divorcing couple’s assets, which awarded the wife over 96% of the
marital estate and ordered the husband’s company to make
installment payments nearing $200,000 to the wife. Defendant
is . . . [discussion of facts continues]
Notes on Facts:
•
Here, set out the factual background necessary to understand why you are
petitioning for writ of supersedeas (e.g.,
the trial court has not stayed execution
despite the posting of security). See N.C. R. App. P. Appendix D.
• Petitioner should
explain here its compliance with the requirement of Rule 23(c),
which dictates that the stay be sought in the trial court in the first instance, or for the
petitioner to demonstrate that it was impracticable to do so. See also id.
• Petitioner should also include here a statement that review of the judgment or order
is being sought by appeal or other extraordinary writ. See N.C. R. App. P. 23(a),
Appendix D.
REASONS WHY WRIT SHOULD ISSUE
Defendant is entitled to a stay because of the plain language
of Section 1-289 of the North Carolina General Statutes and the
likelihood that Defendant will prevail in their appeal of the order.
The trial court’s order will have the effect of . . . [argument
continues]
V. Extraordinary Writs
Appellate Style Manual Page 108
Notes on the Reasons Why Writ Should Issue:
• Here set out the factual and legal argument to justify the issuance of the writ. See
N.C. R. App. P. Appendix D.
• Consult Rule 23 for the bases of the writ.
•
Because this writ is so flexible, the Argument section of the petition is likewise
flexible. Brevity, however, is always going to be appreciated.
MOTION FOR TEMPORARY STAY
Pursuant to Rule 23(e) of the North Carolina Rules of
Appellate Procedure, Defendant respectfully applies to this Court
for an order temporarily staying enforcement of the equitable
distribution order until determination by this Court of whether it
shall issue its writ of supersedeas. In support of this application,
Defendant represents that they sought from, and were denied by,
the trial court an order to stay the equitable distribution order
pending this Court’s review. A temporary stay is necessary to
prevent irreparable harm while this Court determines whether it
shall issue its writ of supersedeas, because the corporation cannot
sustain the payments ordered without liquidation. Defendant
further incorporates and relies on the arguments presented in the
foregoing petition for writ of supersedeas in support of this Motion
for Temporary Stay.
V. Extraordinary Writs
Appellate Style Manual Page 109
Notes on the Motion for Temporary Stay:
• The Motion for Temporary Stay can be set out in the same or in a different document
as the Petition for Writ of Supersedeas. See N.C. R. App. P. 23(e).
• If reflected in the same document, the Motion for Temporary Stay section should set
out the factual and legal argument to justify the issuance of the temporary stay. See
N.C. R. App. P. Appendix D. Nevertheless, this section can be brief provided it
meets the requirements of Rule 23(e), as the arguments for the temporary stay may
overlap considerably with the arguments for the Petition for Writ of Supersedeas.
CONCLUSION
Defendant respectfully requests for this Court to issue a
temporary stay and writ of supersedeas to the Avery County
Superior Court, staying the enforcement of the equitable
distribution order during the pendency of this appeal.
Respectfully submitted, this ____ day of ________, 2023.
[LAW FIRM NAME, if any, and only if
counsel is retained and not appointed]
Electronically submitted
[Name of Counsel]
Attorney for Defendant-Petitioner
245 S. Main Street
Newland, NC 28786
(919) 456-1245
State Bar No. 67890
lawyer@lawfirm.com
V. Extraordinary Writs
Appellate Style Manual Page 110
ATTACHMENTS
Attached to this Petition for Writ of Supersedeas and Motion
for Temporary Stay are copies of the following documents from the
trial court record:
Exhibit A. Certified copy of the Order dividing the
Johnsons’ marital estate by equitable
distribution, filed 20 May 2022.
Exhibit B. Certified copy of the Order denying
Defendant’s motion for stay, filed 25 June
2022.
Exhibit C. Copy of excerpts from the transcript of the
deposition of Sandra Johnson, taken 4
January 2022.
V. Extraordinary Writs
Appellate Style Manual Page 111
Notes on the Attachments:
• The language of Rule 23 itself does not specifically require any item to be attached
to the Petition for Writ of Supersedeas or
to the Motion for Temporary Stay.
However, Appendix D makes clear that the appellate courts expect that a certified
copy of the judgment/order/decree sought to be stayed be attached to the petition
or motion. In addition, Rule 23(c) generally permits the
petition or motion to be
"accompanied by affidavits and by any certified portions of the record pertinent to its
consideration." N.C. R. App. P. 23(c).
• The lower court clerk can provide to the petitioner certified copies of the documents
required by the Rules.
• In practice, practitioners may face difficulty having the clerk of the trial court formally
certify certain "parts of the record." For example, the clerk is not likely to certify as
part of the record any item served but not filed (e.g.,
a Notice of Deposition,
Memorandum of Law, or, in some instances, a transcript of a deposition).
• As a practice pointer, practitioners facing such difficulty should consider submitting
such materials as attachments to the petition or motion, using the attorney
Verification to testify to their authenticity. See the sample Verification below for an
example.
V. Extraordinary Writs
Appellate Style Manual Page 112
VERIFICATION
The undersigned [petitioner or counsel for petitioner], after
being duly sworn, says:
The contents of the foregoing Petition for Writ of Supersedeas
and Motion for Temporary Stay are true to my knowledge, except
those matters stated upon information and belief, and, as to those
matters, I believe them to be true.
[If verified by counsel for petitioner, recast this to state that
the material allegations of the petition are true to the attorney’s
personal knowledge.]
[If counsel will be testifying to the authenticity of any
documents attached to the petition or motion, consider including a
statement along these lines: Pursuant to Rule 23 of the North
Carolina Rules of Appellate Procedure, I also hereby certify that the
documents attached to this Petition for Writ of Supersedeas and
Motion for Temporary Stay are true and correct copies of the
pleadings and other documents from the file in Avery County
Superior Court, including documents that were served or submitted
for consideration as contemplated by Appellate Rule 11.]
V. Extraordinary Writs
Appellate Style Manual Page 113
[Name of Petitioner or Counsel]
______________________ County, North Carolina
Sworn to (or affirmed) and subscribed
before me by [name of principal]
Date: _________________________
[Notary’s Printed or Typed Name], Notary Public
My Commission expires:
Notes on Verification:
• Rule 23(c) requires that "[t]he petition shall be verified by counsel or
the petitioner."
N.C. R. App. P. 23(c).
• The verification page immediately follows on the page after the signature block of
counsel. See N.C. R. App. P. Appendix D.
V. Extraordinary Writs
Appellate Style Manual Page 114
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing Petition
for Writ of Supersedeas and Motion for Temporary Stay has been
served this day by e-mail, addressed as follows:
[Opposing counsel’s name and e-mail address]
This the ____ day of ___________, 2023.
Electronically submitted
[Name of Counsel]
Notes on Order of Materials in Petition for Writ of Supersedeas and Motion for Temporary
Stay:
• Rule 23 does not provide an order in which the sections of the Petition for Writ of
Supersedeas and Motion for Temporary Stay must be presented.
• The sample petition in Ap
pendix D is organized in the following order: the case
caption, the Facts, the Reasons Why Writ Should Issue, the Conclusion (without a
separate "Conclusion" header), the Attachments, the signature block, the
Verification, and finally the Certificate of Service.
•
Appendix D does not state where the Motion for Temporary Stay should appear,
except to note that the Motion may be included as a part of the main Petition or filed
separately.
V. Extraordinary Writs
Appellate Style Manual Page 115
V(b). A Typical Petition for Writ of Certiorari
Notes on the Petition for Writ of Certiorari:
• Rule 21(a) dictates the scope of the writ of certiorari as follows:
(1) Review of the Judgments and Orders of Trial
Tribunals. The writ of certiorari may be issued in
appropriate circumstances by either appellate court to
permit review of the judgments and orders of trial
tribunals when the right to prosecute an appeal has been
lost by failure to take timely action, or when no right of
appeal from an interlocutory order exists, or for review
pursuant to N.C.G.S. § 15A-1422(c)(3) of an order of the
trial court ruling on a motion for appropriate relief.
(2) Review of the Judgments and Orders of the Court of
Appeals. The writ of certiorari may be issued by the
Supreme Court in appropriate circumstances to permit
review of the decisions and orders of the Court of
Appeals when the right to prosecute an appeal of right
or to petition for discretionary review has been lost by
failure to take timely action, or for review of orders of the
Court of Appeals when no right of appeal exists.
N.C. R. App. P. 21(a).
• “A writ of certiorari is not intended as a substitute for a notice of appeal. If this Court
routinely allowed a writ of certiorari in every case in which the appellant failed to
properly appeal, it would render meaningless the rules governing the time and
manner of noticing appeals. Instead, as our Supreme Court has explained, [a]
petition for the writ must show merit or that error was probably committed below.”
State v. Bishop, 255 N.C. App. 767, 769, 805 S.E.2d 367, 369 (2017) (citations and
quotation marks omitted).
V. Extraordinary Writs
Appellate Style Manual Page 116
No. ___________ TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
[Case Number as in Final
Judgment or Order on Appeal]
*********************************************
PETITION FOR WRIT OF CERTIORARI
*********************************************
Notes on the Cover Page for Petition for Writ of Certiorari:
• The petition number in the upper left corner is blank, to be filled in by the appropriate
appellate court.
• When petitioning to the Supreme Court from a decision of the Court of Appeals, the
Court of Appeals docket number should appear below the county name instead of
the trial court docket number on the right side. For an example of the inside cover
page, refer Appendix B and example below.
•
Consult Rule 21 and Appendix D for the circumstances in which this petition is
appropriate.
V. Extraordinary Writs
Appellate Style Manual Page 117
INDEX
TABLE OF CASES AND AUTHORITIES .................... ii
FACTS ............................................................................ 2
REASONS WHY WRIT SHOULD ISSUE .................... 2
I. THE EXISTENCE OF THE TRIAL COURT’S
INTERLOCUTORY ORDER IMPAIRS THE
DEFENSE OF THIS CASE AND MAKES IT
IMPRACTICAL FOR DEFENDANT TO
PROCEED FURTHER IN THE TRIAL
COURT.................................................................. x
II. THE TRIAL COURT’S ORDER IS DIRECTLY
CONTRARY TO THIS COURT’S RECENT
DECISIONS ON THIS SUBJECT ....................... x
ATTACHMENTS ........................................................... 3
VERIFICATION ............................................................ 4
CERTIFICATE OF SERVICE ....................................... 5
Notes on the Index:
• Index entries are indented 0.75-inch from both standard 1-
inch margins (or, put
another way, the index line has margins of 1.75-inches from each side, yielding a 5-
inch line in the middle). See N.C. R. App. P. Appendix B.
• The Petition for Writ of Certiorari only requires an index if it is ten pages or more in
length. See id.
V. Extraordinary Writs
Appellate Style Manual Page 118
TABLE OF CASES AND AUTHORITIES
Cases:
City of Greensboro v. Reserve Ins. Co., 70 N.C. App.
651, 321 S.E.2d 232 (1984) ................................... 7
Statutes:
N.C. Gen. Stat. § 15A-221 (2017) ................................ 13
Rules:
N.C. R. Civ. P. 10 ........................................................... 4
Other Authorities:
U.S. Const. amend. IV ................................................. 14
Notes on Table of Authorities:
• If the Petition for Writ of Certiorari is fewer than 10 pages, the Table of Authorities
may be omitted. See N.C. R. App. P. 26(g)(2).
• If included, the format is the same as any brief (consult the A Typical Appellant's
Brief section, supra, for a fuller discussion on the formatting).
V. Extraordinary Writs
Appellate Style Manual Page 119
No. ___________ TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
***************************************
[[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
[Case Number as in Final
Judgment or Order on Appeal]
*********************************************
PETITION FOR WRIT OF CERTIORARI
*********************************************
TO THE HONORABLE COURT OF APPEALS OF NORTH
CAROLINA:
Plaintiff-Petitioner, the North Carolina Insurance
Association (“the Association”), respectfully petitions the Court of
Appeals of North Carolina to issue its writ of certiorari, pursuant
to Rule 21 of the North Carolina Rules of Appellate Procedure, to
review the partial summary judgment of the Honorable Frank Lee
Wright of Avery County Superior Court, dated 21 June 2022,
[further describe the order appealed from, if necessary]. In support
of this petition, the Association shows the following:
V. Extraordinary Writs
Appellate Style Manual Page 120
STATEMENT OF THE FACTS
The Association filed a complaint on 23 June 2022 in the
Superior Court of Avery County. The trial court granted summary
judgment in favor of Defendant as to the applicability of the statute
of limitations governing the Association’s first and second causes of
action . . . [discussion of facts continues]
Notes on the Statement of the Facts:
• Here set out the factual background necessary to understa
nd why you are
petitioning for certiorari (e.g.,
failure to perfect an appeal of right because of
circumstances constituting excusable neglect; non-appealability of an interlocutory
order, etc.). See N.C. R. App. P. Appendix D.
• If the transcript could not be procured from the court reporter, this statement should
include an estimate of the date that the transcript will become available, with a
supporting affidavit from the reporter. See id.
REASONS WHY WRIT SHOULD ISSUE
The trial court’s partial summary judgment order has the
effect of imposing a liability on the Association that is contrary to
this Court’s recent decisions in . . . [argument continues]
Notes on the Reasons Why Writ Should Issue:
• Here set out the factual and legal argument to justify the
issuance of the writ of
certiorari. See N.C. R. App. P. Appendix D.
• Consult Rule 21 for the bases of the writ of certiorari, and tailor the argument to that
law.
•
Because this writ is so flexible, the argument section of the petition is likewise
flexible. Brevity, however, is always appreciated.
V. Extraordinary Writs
Appellate Style Manual Page 121
ATTACHMENTS
For the Court’s consideration, attached to this Petition of Writ
of Certiorari are certified copies of the partial summary judgment
sought to be reviewed, and [list any other certified items from the
trial court record and any affidavits attached as pertinent to
consideration of the petition].
Wherefore, the petitioner respectfully prays this Court to
issue its writ of certiorari to the Avery County Superior Court to
permit review of the trial court’s partial summary judgment, upon
issues stated as follows: [list the issues, in the same manner
provided for in the Rules for a petition for discretionary review];
and that the petitioner have such other relief as to the Court may
deem proper.
V. Extraordinary Writs
Appellate Style Manual Page 122
Respectfully submitted, this ____ day of _________, 2023.
[LAW FIRM NAME, if any, and only if
counsel is retained and not appointed]
Electronically submitted
[Name of Counsel]
Attorney for Plaintiff-Petitioner
160 N. Main Street
Newland, NC 28786
(828) 456-1245
State Bar No. 12345
lawyer@lawfirm.com
Notes on the Attachments:
• Rule 21(c) requires "certified copies of the judgment, order, or opinion or parts of
the record which may be essential to an understanding of the matters set forth in
the petition." N.C. R. App. P. 21(c).
• The lower court clerk can provide to the petitioner certified copies of the documents
required by this Rule.
• As a practice pointer, practitioners facing such difficulty should consider submitting
such materials as attachments to the petition or motion, using the attorney
Verification to testify to their authenticity.
V. Extraordinary Writs
Appellate Style Manual Page 123
VERIFICATION
The undersigned [petitioner or counsel for petitioner], after
being duly sworn, says:
The contents of the foregoing Petition for Writ of Certiorari
are true to my knowledge, except those matters stated upon
information and belief and, as to those matters, I believe them to be
true.
[If verified by counsel for petitioner, recast this to state that
the material allegations of the petition are true to the attorney’s
personal knowledge.]
[Name of Petitioner or Counsel]
___________ County, North Carolina
Sworn to (or affirmed) and subscribed
before me by [name of principal]
Date:
[Notary’s Printed or Typed Name], Notary Public
My Commission expires:
Notes on the Verification:
•
Rule 21(c) requires that "[t]he petition shall be verified by counsel or the petitioner."
N.C. R. App. P. 21(c).
•
The Verification immediately follows on the page after the signature block of
counsel. See N.C. R. App. P. Appendix D.
V. Extraordinary Writs
Appellate Style Manual Page 124
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing Petition
for Writ of Certiorari has been served this day by e-mail, addressed
as follows:
[Opposing counsel’s name and e-mail address]
This the ____day of _________, 2023.
Electronically submitted
[Name of Counsel]
[Following the Petition for Writ of Certiorari, attach certified copies of
the documents described in the Attachments section. See N.C. R.
App. P. Appendix D.]
VI. Motions and Other Papers
Appellate Style Manual Page 125
VI. Motions and Other Papers
Notes on Recent Changes to the Appellate Rules Regarding Motions:
• Per the November 2020 Amendments,
Rule 37(c) now requires that appellate
motions in all cases, except for appeals involving pro se litigants, document: (1)
“counsel’s good-faith effort to inform counsel for all other parties of the intended filing
of the motion,” (2) “whether the other parties consent to the relief being sought,” and
(3) “whether any other party intends to file a response.” N.C. R. App. P. 37(c).
• Rule 26(a) now provides that “[c]ounsel must file documents in the appellate courts
electronically. The electronic-
filing site for the appellate courts is located at
https://www.ncappellatecourts.org.” N.C. R. App. P. 26(a). An item is filed when it
is “received” by this site. Id.
•
Rule 27(a) clarifies that, for purposes of calculating filing deadlines under the
appellate rules, a legal holiday is “when the courthouse is closed for transactions.”
N.C. R. App. P. 27(a). Accordingly, federal holidays may not count if the state courts
are open.
VI. Motions and Other Papers
Appellate Style Manual Page 126
VI(a). A Typical Petition for Discretionary Review
Notes on the Due Date for a Petition for Discretionary Review:
•
Following a determination by the Court of Appeals, the Petition for Discretionary
Review must be filed and served within 15 days after the mandate of the Court of
Appeals has been issued to the trial tribunal. See N.C. R. App. P.15(b).
• The mandate issues automatically on the 20th day after the issuance of the Court
of Appeals' opinion. See
N.C. R. App. P. 32(b). Counsel does not receive any
notice that the mandate has issued. Counsel should therefore be careful to calculate
his or herself the deadline for filing the Petition for Discretionary Review as 35 days
after the issuance of the opinion (i.e., 20 plus 15). See N.C. R. App. P. 15(b).
• The Petition for Discretionary Review must be actually received by the Clerk of the
Supreme Court by the 35th day to be considered timely. Newly revised Rule 26(a)
now clarifies, however, that “[a]n item is filed in the appellate court electronically
when it is received by the electronic-filing site.”
VI. Motions and Other Papers
Appellate Style Manual Page 127
No. ___________ TWENTY-FOURTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
[Case Number from the Court of
Appeals]
*****************************************
PETITION FOR DISCRETIONARY REVIEW
UNDER N.C. GEN. STAT. § 7A-31(C)
*****************************************
Notes on the Cover Page of Petition for Discretionary Review:
• The petition number in the upper left corner is blank, to be filled in by the Supreme
Court.
• Note that the Court of Appeals docket number, not the trial court docket number,
appears below the county name on the right side. See N.C. R. App. P. Appendix B.
• Consult Rule 15, Appendix D, and N.C. Gen. Stat. § 7A-31 for time limits and similar
information.
VI. Motions and Other Papers
Appellate Style Manual Page 128
INDEX
TABLE OF AUTHORITIES .......................................... ii
FACTS ........................................................................... 1
REASONS WHY CERTIFICATION SHOULD ISSUE 2
I. THIS CASE INVOLVES LEGAL PRINCIPLES
OF MAJOR SIGNIFICANCE TO THE
JURISPRUDENCE OF THIS STATE ................. 2
A. Because Century is not a “claimant” or
“policyholder” and does not possess a
“covered claim” under the Act, it is not
entitled to any recovery from the
Association. ........................................................... 2
B. This Court’s precedents foreclose the Court
of Appeals’ expansive interpretation of the
word “claimant” .................................................... 2
II. THE SUBJECT MATTER OF THIS APPEAL
HAS SIGNIFICANT PUBLIC INTEREST .......... 3
ISSUE TO BE BRIEFED .............................................. 4
CERTIFICATE OF SERVICE ....................................... 5
Notes on the Index:
• Index entries are indented 0.75-inch from both standard 1-
inch margins (or, put
another way, the index line has margins of 1.75-inches from each side, yielding a 5-
inch line in the middle). See N.C. R. App. P. Appendix B.
• The above Index example illustrates another form of an Index, with a mixture of ALL-
CAPS and lower-case section titles.
• The dot leaders (". . . .") for the page numbers are optional.
• The Petition for Discretionary Review only requires an index if it is ten pages or more
in length. See N.C. R. App. P. Appendix B.
VI. Motions and Other Papers
Appellate Style Manual Page 129
TABLE OF AUTHORITIES
Cases:
City of Greensboro v. Reserve Ins. Co., 70 N.C. App.
651, 321 S.E.2d 232 (1984) ................................... 7
Statutes:
N.C. Gen. Stat. § 15A-221 (2017) ................................ 13
Rules:
N.C. R. Civ. P. 10 ........................................................... 4
Other Authorities:
U.S. Const. amend. IV ................................................. 14
Notes on the Table of Authorities:
•
If the Petition for Discretionary Review is fewer than ten pages, the Table of
Authorities may be omitted. See N.C. R. App. P. Appendix B.
• If the Table of Authorities is included, the format is the same as any brief (see A
Typical Appellant's Brief, supra, for a fuller discussion on the formatting).
VI. Motions and Other Papers
Appellate Style Manual Page 130
No. ___________ TWENTY-FOURTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
[Case Number from the Court of
Appeals]
*****************************************
PETITION FOR DISCRETIONARY REVIEW
UNDER N.C. GEN. STAT.§ 7A-31(c)
*****************************************
TO THE HONORABLE SUPREME COURT OF NORTH CAROLINA:
Plaintiff, the North Carolina Insurance Association (the
“Association”), respectfully petitions the Supreme Court of North
Carolina to certify for discretionary review the judgment of the North
Carolina Court of Appeals filed on 21 February 2023 in this cause, on the
grounds that the subject matter of this case involves legal principles of
major significance to the jurisprudence of this State and raises issues of
VI. Motions and Other Papers
Appellate Style Manual Page 131
significant public interest. In support of this Petition of Discretionary
Review, the Association shows the following:
FACTS
The Association filed a complaint on 23 June 2022 in the Superior
Court of Avery County. Judge Jonathan R. Smith granted summary
judgment in favor of the defendant, Mid-Century Indemnity Co. (“Mid-
Century”) at the 21 November 2017 Civil Session. The Association filed
notice of appeal to the Court of Appeals on 1 December 2017. The Court
of Appeals affirmed the order of dismissal in a published opinion, filed 14
February 2018.
The Association is an unincorporated non-profit entity created
pursuant to the North Carolina Insurance Guaranty Act . . . [factual
background continues]
Notes on the Facts:
• The first part of the Facts section should set forth a statement of the case—the
procedural history of the case through the trial tribunal and the Court of Appeals.
See N.C. R. App. P. Appendix D.
• The second part of the Facts section should set forth a statement of the facts—
enough for the Supreme Court to understand the basi
s of the Petition for
Discretionary Review. See id.
VI. Motions and Other Papers
Appellate Style Manual Page 132
REASONS WHY CERTIFICATION SHOULD ISSUE
The decision below imposes a liability on the Association that is
contrary to the language and intent of the statutory scheme governing
the Association’s existence and presents . . . [argument continues]
Notes on the Reasons Why Certification Should Issue:
• The focus of this section should be to show either: (a) how the opinion of the Court
of Appeals conflicts with prior decisions of the Supreme Court; (b) how the case is
significant to the jurisprudence of the State; or (c) why the case is one of significant
public interest. See N.C. Gen. Stat. § 7A-
31, Rule 15 (2017); N.C. R. App. P.
Appendix D.
• Some factual and legal argument will be necessary in the Reasons Why Certification
Should Issue section, but the new brief will be the place for the substantive
discussion of the arguments, if the Supreme Court takes the case. See N.C. Gen.
Stat. § 7A-31, Rule 15 (2017); N.C. R. App. P. Appendix D.
• N.C. Gen. Stat. § 7A-3
1 explains the procedures for petitions filed prior to the
determination of the case in the Court of Appeals.
VI. Motions and Other Papers
Appellate Style Manual Page 133
ISSUE TO BE BRIEFED
In the event the Court allows this Petition for Discretionary
Review, the Association intends to present the following issue in its brief
to the Court:
I. Whether a claim founded upon the doctrine of equitable
subrogation entitles an insurer to recover from the Association to the
extent of the Association’s statutory obligations, despite the Act’s clear
exclusion of claims founded upon subrogation from the definition of a
“covered claim.”
Note on the Issue to be Briefed:
• Be careful to be precise and complete in this section, because “[a]n issue may not
be briefed if it is not listed in the petition.” See N.C. R. App. P. Appendix D.
Respectfully submitted, this the ___ day of _______, 2023.
[LAW FIRM NAME, if any, and only if
counsel is retained and not appointed]
Electronically submitted
[Name of Counsel]
Attorney for Plaintiff-Appellant
160 N. Main Street
Newland, NC 28786
(828) 456-1245
State Bar No. 12345
lawyer@lawfirm.com
VI. Motions and Other Papers
Appellate Style Manual Page 134
CERTIFICATE OF SERVICE
It is hereby certified that the foregoing Petition for Discretionary
Review, pursuant to N C. Gen. Stat. § 7A-31, has been served this day by
e-mail, addressed as follows:
[Counsel’s name and e-mail address]
This the ___ day of ________, 2023.
Electronically submitted
[Name of Counsel]
[Attach a copy of the decision of the Court of Appeals if you are petitioning
after a decision by that court.]
Notes on "Bypass Petitions":
• N.C. Gen. Stat. § 7A-
31 and Rule 15 allow a party to petition for Supreme Court
review of certain matters either before or after determination by the Court of
Appeals.
• The Petition for Discretionary Review cannot be filed until the appeal is docketed in
the Court of Appeals, which occurs shortly after the final record on appeal is filed.
See N.C. R. App. P. Rule 15(a).
• A Petition for Discretionary Review filed before the Court of Appeals determines the
matter is commonly referred to as a "Bypass Petition" or "Bypass PDR (Petition for
Discretionary Review)."
• Bypass Petitions are rarely granted.
• The filing of a Bypass Petition does not
stay proceedings in the Court of Appeals.
Parties may, of course, move the Court of Appeals for an extension of time in which
to file their briefs while a Bypass Petition is pending before the Supreme Court. It is
not uncommon, however, for briefing in the Court of Appeals to proceed before the
Bypass Petition has been ruled upon.
VI. Motions and Other Papers
Appellate Style Manual Page 135
VI(b). A Typical Motion to Consolidate Appeals
Notes on the Motion to Consolidate:
• This motion is appropriate to consolidate for hearing two separate appeals from two
separate cases that involve a similar legal issue or issues. Any party to an action
may move to consolidate two or more appeals "that involve common issues of law."
N.C. R. App. P. 40. After they have been consolidated, the actions will be
calendared and heard as a single case.
• If granted oral argument, the par
ties in a consolidated appeal may allocate their
argument time under Rule 30(b) by written agreement. This agreement must be
filed with the appropriate appellate court prior to oral argument. Unless modified by
the appellate court, the written agreement will control.
• There are other situations in which parties seek to "consolidate" appeals that do not
fall within the narrow scope of Rule 40. For example, where an appeal involves
more than one appellant (including a cross-appeal), then Rule 11(d) requires that
the parties file a single record on appeal. No motion is required for this
"consolidation" of appeals. Each appellant sets forth its proposed issues on appeal
separately in the single record on appeal. N.C. R. App. P. 10(b), (c), 11(d).
• Another ex
ample of "consolidation" can arise when a party wishes to appeal two
different orders entered in the same case. If the orders are entered sufficiently close
in time, the party may consolidate the appeals into a single record on appeal without
the filing of a motion, provided that the party acts within the deadlines applicable to
the appeals as prescribed by the Rules.
• Remember that per the November 2020 Amendments, Rule 37(c) now requires that
appellate motions in all cases, except for appeals involving pro se litigants,
document: (1) “counsel’s good-faith effort to inform counsel for all other parties of
the intended filing of the motion,” (2) “whether the other parties consent to the relief
being sought,” and (3) “whether any other party intends to file a response.” N.C. R.
App. P. 37(c).
VI. Motions and Other Papers
Appellate Style Manual Page 136
No. COA17-123 TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
*************************************
MOTION TO CONSOLIDATE APPEALS
*************************************
TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA:
Defendant-Appellee XYZ Corp., Inc., through undersigned counsel,
moves this Court under Rule 40 of the North Carolina Rules of Appellate
Procedure to consolidate this appeal for hearing with another appeal in
a related case. In support of this motion, XYZ Corp. shows:
1. This appeal from Avery County, Case No. 21 CVD 3375, was
docketed on 22 April 2022.
VI. Motions and Other Papers
Appellate Style Manual Page 137
2. A similar appeal from Forsyth County, Case No. 20 CVD 4478,
was docketed on 10 May 2022.
3. Both actions involve common issues of law, namely [describe
the common issues of law].
4. It would be reasonable and efficient for the Court to consider
the two appeals together.
5. Pursuant to Appellate Rule 37(c), the undersigned counsel
certifies that all counsel of record were notified of Defendant-Appellee’s
intent to file this Motion to Consolidate Appeals. Plaintiff-Appellant does
not object to this Motion and does not intend to file a response.
WHEREFORE, XYZ Corp. respectfully moves this Court under
Appellate Rule 40 to consolidate these appeals.
Respectfully submitted, this ____ day of _______, 2023.
[LAW FIRM NAME, if any, and only if
counsel is retained and not appointed]
Electronically submitted
[Name of Counsel]
Attorney for Defendant-Appellee
245 S. Main Street
Newland, NC 28786
(919) 456-1245
State Bar No. 67890
lawyer@lawfirm.com
VI. Motions and Other Papers
Appellate Style Manual Page 138
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing MOTION TO
CONSOLIDATE APPEALS has been served this day by e-mail,
addressed as follows:
[Opposing counsel’s name and e-mail address]
This the ____ day of _________, 2023.
Electronically submitted
[Name of Counsel]
VI. Motions and Other Papers
Appellate Style Manual Page 139
VI(c). A Typical Motion for Extension of Time
Notes on the Motion for Extension of Time:
• Upon motion, the appellate courts may generally extend any of the times prescribed
by the Rules. However, no court is permitted to “extend the time for taking an appeal
or for filing a petition for discretionary review or a
petition for rehearing or the
responses thereto prescribed by these rules or by law.” N.C. R. App. P. 27(c).
• The example reflected below
is a typical motion in the appellate court. In most
cases, a motion for an extension of up to 30 days for the court reporter to deliver the
transcript per Rule 7
or a motion for an extension of up to 30 days to serve the
proposed record on appeal is made in the trial court and can be made orally or in
writing and without notice to other parties. N.C. R. App. P. 27(c)(1). Any other
Motion for Extension of Time for
any other deadline, including any subsequent
Motion for Extension of Time to prepare the transcript or for service of the proposed
record, must be filed with the appellate court.
• A Motion for Extension of Time may generally be determined ex parte, although the
moving party must promptly serve the order on all other parties. However, if the
time sought to be extended has already expired, the moving party must give notice
to all other parties, and the motion will only be allowed after the other parties have
had an opportunity to be heard. N.C. R. App. P. 27(d).
• A Motion for Extension of Time should provide as much explanation for the request
as possible. These reasons may include conflicts with other cases, other
commitments of counsel, etc.
• Motions for extensions of time are disfavored in juvenile cases governed by Rule
3.1 and will only be allowed in extraordinary circumstances.
• Remember that per the November 2020 Amendments, Rule 37(c) now requires that
appellate motions in all cases, except for appeals involving pro se litigants,
document: (1) “counsel’s good-faith effort to inform counsel for all other parties of
the intended filing of the motion,” (2) “whether the other parties consent to the relief
being sought,” and (3) “whether any other party intends to file a response.” N.C. R.
App. P. 37(c).
VI. Motions and Other Papers
Appellate Style Manual Page 140
No. COA17-123 TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
****************************************************
MOTION FOR EXTENSION OF TIME TO FILE BRIEF
****************************************************
TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA:
Defendant-Appellee, through undersigned counsel, moves this
Court under Rule 27(c) of the North Carolina Rules of Appellate
Procedure for an extension of time of twenty-one (21) days, up to and
including 2 August 2022, in which to file her brief in this matter. In
support of this motion, Defendant shows:
1. The Notice of Appeal was filed on 22 February 2021.
VI. Motions and Other Papers
Appellate Style Manual Page 141
2. The parties settled the record by agreement on 22 April 2021.
3. The Record on Appeal was filed on 1 May 2021.
4. Plaintiff filed its brief on 13 June 2021.
5. The undersigned appellate counsel for Defendant did not
participate in the trial court proceedings.
6. Defendant’s brief is due to be filed with this Court on 13 July
2021.
7. The undersigned counsel reasonably believe that they will
require additional time to prepare Defendant’s brief because [add reasons
with as much specificity as possible].
8. The time for filing Defendant’s brief has not expired.
5. Pursuant to Appellate Rule 37(c), the undersigned counsel
certifies that all counsel of record were notified of Defendant-Appellee’s
intent to file this Motion for Extension of Time. Plaintiff-Appellant does
not object to this Motion and does not intend to file a response.
WHEREFORE, Defendant respectfully moves this Court under
Rule 27(c) for an extension of time of twenty-one (21) days, up to and
including 2 August 2022, or whatever other time the Court deems
appropriate, in which to file her brief in this matter.
VI. Motions and Other Papers
Appellate Style Manual Page 142
Respectfully submitted, this ____ day of ________, 2022.
[LAW FIRM NAME, if any, and only if
counsel is retained and not appointed]
Electronically submitted
[Name of Counsel]
Attorney for Defendant-Appellee
245 S. Main Street
Newland, NC 28786
(919) 456-1245
State Bar No. 67890
lawyer@lawfirm.com
VI. Motions and Other Papers
Appellate Style Manual Page 143
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing MOTION FOR
EXTENSION OF TIME TO FILE BRIEF has been served this day by e-
mail, addressed as follows:
[Opposing counsel’s name and e-mail address]
This the ____ day of _________, 2022.
Electronically submitted
[Name of Counsel]
VI. Motions and Other Papers
Appellate Style Manual Page 144
VI(d). A Typical Motion for Leave to File an
Amicus Curiae Brief
Notes on the Motion for Leave to File an Amicus Curiae Brief:
• Unless the appellate court requests a brief, an amicus curiae may only file a brief by
leave of the court. N.C. R. App. P. 28(i). The Motion for Leave to File an Amicus
Curiae Brief should concisely state “
the nature of amicus curiae’s interest, the
reasons why the brief is desirable, the issues of law to be addressed in the brief,
and the position of amicus curiae on those issues.” N.C. R. App. P. 28(i)(1).
• Prior to March 2018, an amicus curiae had the option to file the Motion for Leave to
File an Amicus Curiae Brief first, with the proposed brief to be filed later. See
2
March 2018 Order Amending Rules 28, 29, and 33.1 of the North Carolina Rules of
Appellate Procedure. However, now, Rule 28(i)(2) states that "[t]he motion must be
accompanied by amicus curiae's brief."
• "When amicus curiae files its motion and brief, it must serve a copy of its motion and
brief on all parties to the appeal." N.C. R. App. P. 28(i)(4).
• Rule 28(i)(3) dictates the time for filing an amicus curiae brief and motion as follows:
o If the amicus curiae brief is in support of a party to the appeal, then amicus
curiae shall file its motion and brief within the time allowed for filing that
party's principal brief.
o If amicus curiae's brief does not support either party, then amicus curiae
shall file its motion and proposed brief within the time allowed for filing
appellee's principal brief.
• Within 30 days after having been served with the amicus curia brief, the parties may
submit response briefs to an amicus curiae brief, but the response must be "limited
to a concise rebuttal of arguments set out in the amicus curiae brief and shall not
reiterate or rebut arguments set forth in the party's principal brief." N.C. R. App. P.
28(i)(6).
• It is also helpful for an amicus curiae to describe the positions of the parties with
respect to the issue(s) of law to be addressed. The best practice is for a potential
amicus curiae to obtain consent of the party whose position it seeks to support.
• Remember that per the November 2020 Amendments, Rule 37(c) now requires that
appellate motions in all cases, except for appeals involving pro se litigants,
document: (1) “counsel’s good-faith effort to inform counsel for all other parties of
the intended filing of the motion,” (2) “whether the other parties consent to the relief
being sought,” and (3) “whether any other party intends to file a response.” N.C. R.
App. P. 37(c).
VI. Motions and Other Papers
Appellate Style Manual Page 145
No. COA17-123 TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
***************************************
[Plaintiff’s Name as in Final
Judgment or Order on Appeal],
Plaintiff,
v.
[Defendant’s Name as in Final
Judgment or Order on Appeal],
Defendant.
From Avery County
*******************************************************
MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
*******************************************************
TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA:
The North Carolina Association of Lawyers (“NCAL”) hereby
requests leave, pursuant to Rule 28(i) of the North Carolina Rules of
Appellate Procedure, to file an amicus curiae brief in support of
Defendant-Appellant. The proposed brief is filed contemporaneously
with this motion.
VI. Motions and Other Papers
Appellate Style Manual Page 146
INTEREST OF NCAL AS AMICUS CURIAE
The NCAL is a not-for-profit organization of attorneys. It has a
substantial interest in ensuring that [describe the interest of the amicus
curiae].
REASONS WHY AN AMICUS CURIAE BRIEF IS DESIRABLE
Defendant seeks to avoid her obligations under a binding
agreement. In addition to reviewing the case law from North Carolina
and other jurisdictions, the NCAL will demonstrate why [explain why an
amicus curiae brief is desirable].
ISSUE OF LAW TO BE ADDRESSED
The NCAL will address the following issue of law: [describe the
issue of law to be addressed].
POSITION OF AMICUS CURIAE
It is the position of the NCAL that [describe the position of the
amicus curiae].
APPELLATE RULE 37(c) CERTIFICATION
Pursuant to Appellate Rule 37(c), NCAL certifies that all counsel of
record were notified of NCAL’s intent to file this Motion for Leave to File
Amicus Curiae Brief. Plaintiff has no objection and does not intend to file
VI. Motions and Other Papers
Appellate Style Manual Page 147
a response. However, Defendant objects to NCAL’s Motion and intends
to file a response.
CONCLUSION
For the foregoing reasons, the NCAL respectfully requests that the
Court grant it leave to file an amicus curiae brief in support of Plaintiff-
Appellant.
Respectfully submitted, this ____ day of _______, 2023.
[LAW FIRM NAME, if any]
[Name of Amicus Curiae or Counsel for
Amicus Curiae, if any]
[Counsel for Amicus Curiae]
160 N. Main Street
Newland, NC 28786
(828) 456-1245
State Bar No. 12345
lawyer@lawfirm.com
VI. Motions and Other Papers
Appellate Style Manual Page 148
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing MOTION FOR
LEAVE TO FILE AMICUS CURIAE BRIEF has been served this day by
e-mail, addressed as follows:
[Names and e-mail addresses of counsel for all parties]
This the ____ day of ________, 2023.
[Name of Amicus Curiae or Counsel for
Amicus Curiae, if any]
VII. Formatting of Appellate Filings
Appellate Style Manual Page 149
VII. Formatting of Appellate Filings
VII. Formatting of Appellate Filings
Appellate Style Manual Page 150
VII(a). Form of Documents Filed with Appellate Courts
Notes on Form of Papers Presented to Appellate Courts:
• Although formatting and style requirements may be found throughout the Rules, the
primary source for formatting requirements is Rule 26(g) and Appendix B. Notably,
Rule 26(g)(1) dictates:
o Documents “shall be letter size (8 ½ x 11”)”;
o “The body of the text shall be presented with double spacing between each
line of text”; and
o “Lines of text shall be no wider than 6 ½ inches
, leaving a margin of
approximately one inch on each side.”
• Appendix B recognizes two exceptions to the general rule that double-spacing
should be used in appellate filings:
o Any new typed material within the Printed Record “should be single-spaced,
with double spaces between paragraphs.” N.C. R. App. P. Appendix B.
Comparatively,
the body of the notice of appeal, appellate petitions,
motions, briefs, and responses should be double-spaced. Id.
o Single spaces between lines for block quotes. More specifically, Appendix
B states: “Quotations of more than three lines in length should be indented
¾" from each margin and should be single-
spaced. The citation should
immediately follow the quote.”
• Practitioners should also remember that the Printed Record on appeal is reproduced
in black and white. One way to submit a color document is to include it in the Rule
9(d) Supplement you prepare and submit yourself. Regardless, be sure that any
documents that were originally in color and are included in the Printed Record
remain readable when reproduced in black and white. A color photo included in the
Printed Record, for example, may just look like a black rectangle to the appellate
court.
Notes on Typefaces or Fonts:
• Rule 26(g)(1) requires for documents to be “prepared using a proportionally spaced
font with serifs that is no smaller than 12-point and no larger than 14-point in size.”
•
Although the Rules do not require a particular type of proportionally spaced font,
appellate court decisions are published in Century Schoolbook font, and the Rules
specifically list Constantia and Century typefaces as appropriate options. N.C. R.
App. P. 26(g)(1). Prior fonts endorsed by the Rules, including Courier New, were
prohibited by the 2017 changes to the Rules.
• The typeface and font requirements do not apply, however, to trial court documents
or other pre-
printed documents that are included in the record on appeal or as
appendices, addendums, exhibits, or attachments to motions
or briefs filed in the
appellate courts.
• The examples reflected in this Style Manual are printed in 14-
point Century
Schoolbook typeface.
VII. Formatting of Appellate Filings
Appellate Style Manual Page 151
Notes on Page Numbers in the Printed Record:
• Although page numbers are not reflected in this Style Manual, the “Numbering
Pages” section of Appendix B dictates that page numbers are generally required in
appellate filings and should be included as follows:
o Page numbers should be centered and flanked by dashes at the top of most
pages. See N.C. R. App. P. at Appendix B (Numbering Pages). The cover
page—i.e., the first page of the filing that reflects the case caption—should
not be numbered. Id.
o Any subsequent introductory pages after the cover page (e.g., index, table
of authorities) should be numbered with
lowercase Roman numerals,
flanked by dashes (i.e., -ii-, -iii-, -iv-), starting with “ii” since page “i" is the
unnumbered cover page. See id.
o The first and all subsequent pages of the substantive document should be
numbered by Arabic numbers, flanked by dashes (i.e., -1-, -2-. -3-). See id.
• The page numbers may appear within the 1-
inch top margin, as long as the first
substantive line is at least 1-
inch from the top edge of the paper. Practitioners
should be careful, however, not to place page numbers within the top 0.5-inch of the
page, as they may not be reproduced when the page is photocopied by the Clerk’s
office.
Notes on Formatting Dates:
• North Carolina appellate opinions have traditionally reflected the day-month-year
date style (e.g., “14 November 2018”).
• However, the Rules do not prescribe a particular date format, so practitioners may
use either method when referencing dates in their appellate filings. Either way, the
selected method should be consistently used throughout any filings.
VII. Formatting of Appellate Filings
Appellate Style Manual Page 152
Notes on Electronic Filing:
•
Pursuant to the October 2021 Amendments to the Rules, electronic filing is now
mandatory via the appellate courts’ “electronic-
filing site . . . located at
https://www.ncappellatecourts.org.” See N.C. R. App. P. 26(a). There are only three
exceptions to this otherwise mandatory e-filing rule:
o (a) An unrepresented party is “encouraged” to e-file “but is not required to
do so.” Id. In lieu of e-filing, an unrepresented party “may file items by hand
delivery or mail.” Id.
o (b) “If a technical failure prevents counsel from filing a document by use of
the electronic-filing site, then the clerk of the appellate court may permit the
document to be filed by hand delivery, mail, or fax.” Id.
o (c) “Counsel may file copies of oversized documents and non-documentary
items electronically if permitted to do so by the electronic-
filing site, but
otherwise by hand delivery or mail.” Id.
• All electronically filed items are considered to be “filed” in the appellate court “when
it is received by the electronic-filing site.” Id.
• Items that are physically submitted to the appellate court in paper form are generally
considered “filed” when the item “is received by the clerk.” Id. However, “motions,
responses to petitions, the record on appeal, and briefs filed by mail are deemed
filed on the date of mailing as evidenced by the proof of service.” Id.
• Be aware that electronic filing does not mean electronic service. You are still
responsible for serving your electronically filed documents on all parties. See N.C.
R. App. P. 26(b).
Notes on Signature Blocks:
• Rule 26(g)(3) dictates: “The body of a document composed for an appeal shall at its
close bear the printed name, post offi
ce address, telephone number, State Bar
number, and e-mail address of counsel of record, and in addition, at the appropriate
place, the signature of counsel of record.”
• “Unless filed pro se, documents filed in a case will bear the signature of at least one
counsel participating in the case.” N.C. R. App. P. at Appendix B.
o Important Note: Any attorneys who wish to participate in oral argument must
“have personally signed the brief prior to oral argument.”
N.C. R. App. P.
33(a) (emphasis added).
• Electronically filed documents need not be signed by hand, however. Indeed, since
e-filing is now mandatory (with limited exceptions noted above), the October 2021
Amendments eliminated the all references that required “manuscript” or “wet”
signatures throughout the Rules. In lieu of a manuscript signature, it is customary to
type “Electronically submitted” on the signature line where the manuscript or wet
signature would have appeared.
VII. Formatting of Appellate Filings
Appellate Style Manual Page 153
• Examples of signature blocks can be found in Appendix B of the Rules, which further
instructs that the formatting of the signature blocks will differ based on whether
counsel of record has been retained or appointed, as follows:
o If “counsel is appointed in an indigent criminal appeal, only the name of the
appointed counsel should appear, without identification of any firm affiliation”:
N.C. R. App. P. at Appendix B. For example:
Electronically submitted
[Attorney Name]
Attorney for Defendant-Appellant
P.O. Box ####
Raleigh, NC 24600
(919) 999-9999
State Bar No. #####
Attorney1@email.com
o If counsel has been retained, “the firm name should be included above the
signature” line. N.C. R. App. P. at Appendix B. Additionally, to list more than
one attorney, Rule 33(b) requires that the following certification be included
below the e-filing attorney’s signature block, along with the address, phone
number, State Bar number, and email address for each additional attorney:
[LAW FIRM NAME]
By: Electronically submitted
[Attorney 1’s Name (N.C. State Bar No.: #####)]
Attorney1@email.com
N.C. R. App. P. 33(b) Certification: I certify that all of
the attorneys listed below have authorized me to list
their names on this document as if they had personally
signed it.
[Attorney 2’s Name (N.C. State Bar No. #####)]
Attorney2@email.com
P.O. Box 12345
Raleigh, N.C. 27622
(919) 999-9999
Attorneys for Plaintiff-Appellant
VII. Formatting of Appellate Filings
Appellate Style Manual Page 154
VII(b). Sealing Documents and Rule 42 Checklist
Notes on Sealing Documents:
• Generally, documents filed with the appellate courts are available to the public. This
includes the record on appeal, a party's brief, and anything appended to it. If a party
wishes to keep documents confidential, it must take steps to ensure the
confidentiality. The above sample stipulation, under section III(a), is one way to do
so, but it is not necessarily the only way.
•
As of 1 January 2019, Rule 42 now governs sealed items and identification numbers.
Rule 42(a) states that "[i]tems sealed in the trial tribunal remain under seal in the
appellate courts. When these items are filed with the appellate courts, counsel must
attach a copy of the order, statute, or other legal authority that sealed the item
below." N.C. R. App. P. 42(a).
• "If an item was not sealed in the trial tribunal or by operation of rule, then counsel
may move the appellate court to seal that item." N.C. R. App. P. 42(c).
•
Certain information must be kept confidential regardless of any effort to file
documents under seal. For example, "[d]river license numbers, financial account
numbers, social security numbers, and tax identification numbers must be excluded
or redacted from all documents that are filed with the appellate courts unless the
number is necessary to the disposition of the appeal." N.C. R. App. P. 42(e).
• Per Rule 42(d), documents filed with the appellate courts that are under seal must
display at the top of the first page this notice:
UNDER SEAL AND SUBJECT TO PUBLIC INSPECTION ONLY
BY ORDER OF A COURT OF THE APPELLATE DIVISION
•
If the document under seal is included within another document, then this notice
must also be displayed at the top of the first page of that other document."
VII. Formatting of Appellate Filings
Appellate Style Manual Page 155
RULE 42 CHECKLIST FOR COUNSEL
FOR ALL FILINGS (RECORDS, EXHIBITS, BRIEFS, MOTIONS)
Protected by N.C. Rule of Appellate Procedure 42
☐ Items sealed in the trial court (R. 42(a)) (attach copy of sealing order)
☐ Automatically sealed by Rule: (R. 42(b))
☐ Appeals in child welfare cases (GS 7B-1001)
☐ Appeals in delinquency cases (GS 7B-2602)
☐ Appeals cases of sexual offenses against minors (GS 7A-27)
☐ Minors at time of offense, even if adults now
☐ Appeals in these cases where right to appeal lost (PWC, etc)
☐ When minors involved: use initials or pseudonyms (R. 42(b))
☐ Information to be redacted by Rule: (R. 42(e))
☐ Social Security Numbers (R. 42(e))
☐ Financial Account Numbers (R. 42(e))
☐ Tax ID Numbers (R. 42(e))
☐ Drivers License or other identification numbers (R. 42(e))
Protected by Law (provide copy of statute or other authority sealing documents)
☐ HIPAA (GS 122C-55)
☐ Mental Health & Treatment Records (GS 122C-52)
☐ Substance Abuse Treatment Records (42 USC § 290dd-2)
☐ Trade secrets (GS 66-156; 18 USC § 1833(b)(1)(B))
☐ Addresses when there is a DVPO (GS 15C-9)
Items to consider (and which likely contain confidential information)
☐
Drug test results
☐ DNA/Paternity results
☐ Child support worksheets
☐ Paystubs
☐ Equitable distribution
worksheets
☐
Tax returns
☐
Traffic tickets (driver license numbers)
☐ Loan applications
☐ Credit card statements
☐ Bank statements
☐ Adoptions
☐ Retirement plans
IF CLERKS OR OTHER JUDICIAL PERSONNEL NOTICEUNREDACTED/CONFIDENTIAL
INFORMATION:
☐ Notify trial counsel of need to redact/remove/seal information
☐ Remove from online access
VII. Formatting of Appellate Filings
Appellate Style Manual Page 156
IT IS NOT THE DUTY OF THE CLERKS OR OTHER JUDICIAL PERSONNEL TO PROTECT
THIS INFORMATION!
Additional Laws Specifying Information That Must Be Kept Private:
- Chapter 115C contains a number of legal confidentiality requirements. Are they worth
adding to the checklist? See GS 115C-150.15 (information about deaf and blind
students), -174.13 (information about tests), -321 (information in personnel files)
- GS 7B-3001 requires a juveniles delinquency record and related documents be withheld
from public inspection
- GS 7B-2901 requires all abuse, neglect, and dependency cases be withheld from public
inspection
VII. Formatting of Appellate Filings
Appellate Style Manual Page 157
VII(c). Citations
Notes on Citations:
• Generally, citations “should be made according to the most recent edition of The
Bluebook: A Uniform System of Citation,” and citations to “regional reporters shall
include parallel citations to official state reporters.” N.C. R. App. P. at Appendix B.
There are several exceptions, however. Most notably, the Supreme Court of North
Carolina recently adopted a new “universal citation” method for citing to any new
North Carolina case law. See below for more information.
• The best resource to review North Carolina’s customary citation standards is The
Guidebook: Citation, Style, and Usage at the Supreme Court of North Carolina,
which was recently updated on 23 September 2020. The Guidebook is a 9-page
PDF that has been prepared and approved by the Supreme Court of North Carolina.
It was created to provide North Carolina’s appellate court judges with examples and
recommended instructions for formatt
ing the citations reflected in their judicial
opinions.
o In its opening Foreword, The Guidebook reiterates that the appellate courts
“generally follow[ ] the Uniform System of Citation that is described in The
Bluebook and the style and usage conventions
found in the Texas Law
Review’s Manual on Usage & Style.” Therefore, The Guidebook is
“purposefully concise” as it solely focuses on “the Court’s deviations from
these two reference books.”
Notes on Universal Citations:
• For a brief period (between 1 January 2021 to 1 February 2023), practitioners were
required to cite to any new cases published by either North Carolina’s Supreme
Court or Court of Appeals according to North Carolina’s universal citation format.
However, in a
13 January 2023 Order
, the Supreme Court of North Carolina
rescinded this mandate, effective 1 February 2023. (See corresponding 13 January
2023 Press Release)
• In other words, there is no longer a need to worry about adopting a new citation
format. Utilize the traditional citation method to cite to any North Carolina case law.
