Friday, November 10, 2006, 12:29 AM

Assignments Of Error From Summary Judgment

This week, in Litvak v. Smith, the COA held that assignments of error are not required from summary judgment orders.

This is another issue on which the COA has zig-zagged over the years.

We begin with Ellis v. Williams, 355 S.E.2d 479 (N.C. 1987). There the SCT held that assignments of error are not necessary when appealing a summary judgment order. The SCT based its ruling on the text of Rule 10 then in effect.

But a decade later, the COA held that "Ellis is no longer good law." See Shook v. County of Buncombe, 480 S.E2d 706 (N.C.App. 1997). The plaintiff in Shook appealed a summary judgment order but failed to assign error. The COA dismissed. Mindful of Ellis's holding that assignments of error are unnecessary in an appeal from summary judgment, the COA held that "Ellis is no longer good law." Why? Ellis was based on an interpretation of the 1987 version of Rule 10, but that version was superseded when the SCT amended the rules in 1988. Shook demonstrated why the 1988 amendment to Rule 10 changed things and no longer permitted an exception for summary judgment appeals.

Shook was decided in 1997. The very next year, however, the COA reversed course, ignoring Shook and reverting back to the Ellis rule without explaining the flip. The COA stayed on this track in 1998, 2001, and 2004, citing Ellis and ignoring Shook. None of these decisions reckoned with the fact that Ellis was decided under an old, superseded version of Rule 10.

Then, earlier this year, in May 2006, the COA issued Hubert Jet Air, LLC v. Triad Aviation, Inc., 628 S.E.2d 806 (N.C.App. 2006). Hubert Air held that an assignment of error to a summary judgment order was deficient in violation of Rule 10, and the COA dismissed the appeal.

But the following month, in June 2006, the COA reversed course again in Nelson v. Hartford Underwriters Ins. Co., 630 S.E.2d 221 (N.C.App. 2006). Criticizing the Hubert Air panel for not following Ellis, the Nelson panel held that Ellis was binding. The panel thus denied a motion to dismiss the appeal. The panel never cited Shook. The panel never confronted the fact the Ellis was decided under a different version of Rule 10.

Which brings us back to Litvak v. Smith, decided this week. It follows Nelson, and thus follows Ellis, and thus ignores Shook and the fact that Ellis was based on a superseded version of Rule 10.

Is it possible that a future panel will flip back and hold (again) that Ellis is no longer good law? Only time will tell.


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