Out of a total of 24 opinions, the Supreme Court’s most recent set of opinions included nine criminal cases, three terminations of parental rights, and six direct appeals from Business Court decisions.

Of those six Business Court appeals, three were decided with written opinions and three were decided per curiam. What is noticeable, however, is that the three per curiam opinions were not one-pagers. Rather, in each instance the Supreme Court attached the corresponding opinion from the Business Court.

This seems to be an increasing practice. You will recall that the Supreme Court has been receiving direct appeals from certain Business Court decisions since 2014. Not surprisingly, those appeals were initially decided with written opinions.

In 2018, the Supreme Court added to the types of possible results by affirming two Business Court cases per curiam and dismissing a set of appeals.

Then in March 2019, the Supreme Court took a new approach: affirming per curiam but attaching the Business Court’s opinion. This same result was repeated two months later.

With the apparent increase in the practice into 2020, one may wonder what effect the attachment has on the “law” in North Carolina. The North Carolina reporters do not include any notation or explanation before the Business Court opinion. On Westlaw, the Business Court opinion is identified as an “Appendix.”

By attaching the Business Court opinion, is the Supreme Court expressly adopting the language and reasoning of the Business Court? Or is the Supreme Court simply attaching the opinion for the convenience of the reader? Are the Business Court decisions that were affirmed (but not attached) in 2018 any more or less binding than the more recent ones that have been attached?

Is the effect the same as when the Supreme Court affirms the Court of Appeals “for the reasons stated in the dissent”? Or is this something different?

What about when parties cite to the opinion in subsequent cases? Is it misleading to quote from the North Carolina reporter pages as if the Business Court opinion is the language of the Supreme Court? Is there a difference (technical or subconscious) between citing “ __ NCBC __, aff’d __ N.C. __” and citing “__ N.C. __, __ S.E.2d __”?

P.S. Lest you think that all Business Court opinions will receive a per curiam affirmance from the Supreme Court, see Accardi v. Hartford Underwriters Insurance Co. and Scigrip, Inc. v. Osae.

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