Dissent-based appeals of right might stick around a little longer than we thought.
The 2023 budget bill struck N.C. Gen. Stat. § 7A-30(2), which had allowed for an appeal of right to the Supreme Court whenever “there is a dissent when the Court of Appeals is sitting in a panel of three judges.” The statutory change “applies to appellate cases filed with the Court of Appeals on or after” 3 October 2023.
It is not clear what the General Assembly meant here. Is a case “filed with the Court of Appeals” when docketed? Or when the notice of appeal is filed in the trial tribunal? Or some other time?
We may finally have an answer.
In Durham Green Flea Market v. City of Durham, the plaintiff appealed from a final judgment on 30 June 2023. The record on appeal was filed around 22 March 2024, and the case docketed with the Court of Appeals soon thereafter. On 3 December 2024, the panel affirmed by vote of 2-1, with Judge Tyson dissenting. Plaintiff timely filed a notice of appeal based on the dissent. (To be safe, the Plaintiff also filed a conditional petition for discretionary review, in the event the Supreme Court found the notice of appeal to be ineffective because of the statutory change.) Defendant moved to dismiss the appeal on the basis of the statutory change.
On Friday, the Supreme Court denied the motion to dismiss the appeal and dismissed the conditional petition as moot:
Translation: the notice of appeal was proper, so there was no need for the conditional petition.
Because the issue was resolved by order and not an opinion, we don’t have the benefit of the Court’s reasoning. But this does suggest that the Court may take a lenient view on the timing of the sunset of dissent-based appeals.
H/T Troy Shelton for the tip.
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