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-filing site athttps://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).No. COA17-123
TWENTY-FOURTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
***************************************
[Plaintiff's Name as in Final Judgment or Order on Appeal], Plaintiff, | From Avery County |
v. | |
[Defendant's Name as in Final Judgment or Order on Appeal], Defendant. |
***********************************
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., "PlaintiffAppellant's New Brief"). See N.C. R. App. P. Appendix B.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.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.
No. COA17-123
TWENTY-FOURTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
***************************************
[Plaintiff's Name as in Final Judgment or Order on Appeal], Plaintiff, | From Avery County |
v. | |
[Defendant's Name as in Final Judgment or Order on Appeal], Defendant. |
***********************************
PLAINTIFF-APPELLANT'S BRIEF
***********************************
ISSUES PRESENTED
I. Did the trial court err in admitting a hearsay statement made to a nontreating 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?
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, parties, 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.).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")..
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.[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.[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.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 witnesses 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.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).
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 separate 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, ....
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 singlespaced 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).[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.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.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).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 the 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.