Governor Perdue Appoints Mark Davis to NC Court of Appeals

Today Governor Perdue appointed Mark Davis, her general counsel for the past two years, to the open seat on the North Carolina Court of Appeals.  Davis will be filling a seat left vacant by Perdue's appointment of Cheri Beasley to the Supreme Court of North Carolina.

http://www.charlotteobserver.com/2012/12/31/3757477/perdue-makes-four-judicial-appointments.html

Court of Appeals Opinions

This morning the North Carolina Court of Appeals released opinions, including 28 published opinions.  We will have more on any cases of interest later.

NC Supreme Court Opinions

Today the NC Supreme Court issued thirteen opinions, eight of them civil.   We'll be back with posts on some of these cases shortly.

Governor Perdue Appoints Beasley to North Carolina Supreme Court

On Wednesday, Governor Perdue announced that she has appointed Court of Appeals Judge Cheri Beasley to fill the vacancy on the North Carolina Supreme Court.  Here's the link to the Governor's press release.  Beasley will fill the open spot created when Justice Timmons-Goodson retired earlier this year.

Beasley was elected to the Court of Appeals in 2008.  Prior to her service on the appellate bench, Beasley served as a District Court judge for almost ten years.  Before becoming a judge, Beasley spent five years as an assistant public defender.  More biographical information can be found here. 

The selection of Beasley creates an open position on the Court of Appeals.

Appellate Rules Committee Revises Appellate Style Manual

The Appellate Rules Committee of the North Carolina Bar Association has recently published a revised Appellate Style Manual.  This practical guide to handling North Carolina appeals, which includes guidance on interpreting and complying with the Rules of Appellate Procedure, helpful timetables, and examples of the components of typical appellate filings, can be an invaluable resource for any appellate lawyer.  Whether you are new to the practice of appellate law or an experienced appellate practitioner, this Manual is a must-read. 

Please also note that the Rules Committee has published an Oral Argument Guide for Appellate Counsel, both for the Supreme Court and the Court of Appeals.

Perdue Suspends Judicial Nominating Commission

As I mentioned in an earlier post, the limited time left in Governor Perdue's term meant that it would be difficult for her to utilize her Judicial Nominating Commission to fill the vacancy that will be created on the North Carolina Supreme Court when Justice Timmons-Goodson resigns on December 17, 2012.  In the days that followed the announcement of Justice Timmons-Goodson's resignation, Governor Perdue asserted that she would fill the vacancy, even if it meant modifying or repealing the Executive Order which established the Judicial Nominating Commission.  See stories here, here, and here.

Perdue's willingness to modify or repeal Executive Order 86 was met with harsh criticism from North Carolina Senate President Pro Tem Phil Berger who said such action would constitute "one more example of the rank hypocrisy soiling her legacy."  Carrie Severino, Chief Counsel and Policy Director for the Judicial Crisis Network, writing on National Review Online's Bench Memos blog, was also critical of this proposed course of action.

Despite the criticism from the right, today Governor Perdue issued Executive Order 137 which suspends the Judicial Nominating Commission's role in filling vacancies until the end of her term.  Despite feeling that it was necessary to suspend the Commission's role in the judicial selection process, Perdue "urge[d] future governors to continue utilizing the Commission to assist them in filling judicial vacancies for all of the reasons set forth in Executive Order No. 86."

It will be interesting to see how this unusual process impacts the individuals appointed to fill judicial vacancies that will open up between now and the end of Governor Perdue's term (rumors have it that there will be at least one more opening on the Supreme Court) and the viability of the Judicial Nominating Commission in the McCrory administration.

COA Reverses Order Denying Motion to Compel Arbitration

Generally speaking, the North Carolina Rules of Civil Procedure do not require trial courts to make findings of fact when disposing of motions.  However, in Cornelius v. Lipscomb, Judge Martha A. Geer, joined by Chief Judge John C. Martin and Judge Donna Stroud, explained that orders addressing motions to compel arbitration present an exception to this rule. 

In reviewing an order denying a motion to compel arbitration, Judge Geer explained that "[t]his court has repeatedly held that 'an order denying a motion to compel arbitration must include findings of fact as to whether the parties had a valid agreement to arbitrate and, if so, whether the specific dispute falls within the substantive scope of that agreement.'"  A failure to include those findings will result, as it did in this case, in the Court of Appeals reversing the trial court's order and remanding the case for entry of an appropriate order.

Judge Geer's opinion also reminded trial courts that if they find "that the parties did enter into an arbitration agreement, the court must also address whether the Federal Arbitration Act ("FAA") or the North Carolina Revised Uniform Arbitration Act applies as to the agreement."

While the Court of Appeals' opinion is directed to the trial courts, as most practicing attorneys know, these types of orders are generally drafted by counsel for the parties and submitted to the trial court for the judge's signature. A proposed order on a motion to compel arbitration that does not contain the necessary findings of fact and conclusions of law is a sure way to spend a great deal of your time and your client's money on an appeal that is certain to result in the lower court's opinion being reversed.

Court of Appeals Opinions

This morning the North Carolina Court of Appeals released opinions in 21 cases.  We will have more on any cases of interest later.