BLOGS: North Carolina Appellate Blog
Tuesday, May 21, 2013, 2:28 PM
Thursday, May 09, 2013, 7:23 PM
Womble Carlyle Attorneys Obtain Reversal of Judgment for Client
Yesterday the Court of Appeals reversed a jury verdict as to two defendants in a breach of contract case and granted a new trial to the remaining defendant on the issue of damages. The case is Scheerer v. Fisher. Womble Carlyle attorneys Burley Mitchell and Bob Numbers represented Highland Forest Partners in this appeal.
Scheerer filed suit to obtain the commission he believed he was entitled to as a result of this sale. At trial, the jury found that there was a breach of contract by Fisher, Renaissance Ventures, and Highland Partners and awarded the plaintiffs $400,000.
After the trial, Highland Forest Partners retained Womble Carlyle to represent it in the appellate process. The Court of Appeals found that the trial court erred in denying Renaissance Ventures' and Highland Partners' motion for a judgment in their favor notwithstanding the verdict because there was insufficient evidence of a breach of contract by those defendants - Renaissance properly terminated the initial purchase agreement, and the only claim alleged against Highland Partners in Plaintiffs' complaint was for a breach of a contract implied in law, an issue which the jury did not reach. The opinion represents a complete victory for Renaissance Ventures and Highland Forest Partners.
The COA did find that there was sufficient evidence to uphold the jury verdict with respect to Fisher, even though he terminated the initial purchase agreement that provided Scheerer with a two percent commission, and the final purchase agreements did not contain such a provision. Fisher testified that Scheerer introduced him to the properties and that he encouraged Scheerer to seek a commission from the seller. The COA held that the testimony "provided more than a scintilla of evidence that plaintiffs and Fisher had an express agreement that Fisher would procure Scheerer’s commission for the purchase of the properties and that he failed to do so."
Monday, May 06, 2013, 7:46 PM
Interview with the Honorable Mark A. Davis, North Carolina Court of Appeals
Thursday, March 28, 2013, 2:33 PM
Rule Change Approved by the North Carolina Supreme Court
- Rule 28(h) has been amended to provide that appellants may now file a reply brief as of right regardless of whether a case is being heard for oral argument. The page limit for reply briefs prepared using proportional type is 15 pages and the word limit for reply briefs using non-proportional type is 3,750 words. This change also resulted in a number of semantic changes to a number of other rules.
- Rule 27(b) has been amended to provide an additional three days to deadlines that are calculated from the date of service of some other document (other than the filing of a notice of appeal) when service occurs by electronic mail (if service by electronic mail is allowed by the Rules).
- Rule 9(d) received a substantial rewrite. Here are the highlights:
- Under the revised Rule 9(d) any exhibit filed, served, submitted for consideration, admitted, or made part of an offer of proof may be included in the record on appeal.
- Documentary exhibits may be included in the record on appeal if they do not impact the legibility or original significance of the exhibit. If a documentary exhibit cannot be included in the record on appeal because inclusion would impact the legibility or original significance, three paginated copies must be filed with the appellate court. If multiple documentary exhibits are filed with the appellate court, the filing must include an index.
- Any tangible items can be made part of the record on appeal by filing a written request with the clerk of superior court that she deliver the exhibit to the appellate court.
These new rules will be effective on April 15, 2013.