Guest Post: Florida State's appeal to the North Carolina Supreme Court

If at first you don't succeed, appeal appeal appeal

Ed note: TwistNHook is back on the Florida State beat after some initial rulings that went in the ACC’s favor. Here’s a link to all of his prior analysis of FSU vs. ACC. Meanwhile, Florida State is taking another stab to try to pull legal victory from the jaws of defeat - do they have an argument? Let’s find out:

Hello, today we are talking about the FSU appeal to the NC Supreme Court.  It is important to keep separate things separate here.  There are so many moving parts that it is easy to get confused.  So, let’s focus in here on what we are talking about:

PETITION FOR WRIT OF CERTIORI

This is a Petition For Writ Of Certiori.  It is to the North Carolina Supreme Court (NCSC).  A Petition For Writ Of Certiori is a request that the NC Supreme Court hear FSU’s appeal of the denial of their Motion To Stay the ACC v. FSU lawsuit in NC.  That is not automatically heard in an appeal, so they have to file a Petition to request it be heard.  The North Carolina Business Court (NCBC) denied FSU’s Motion To Stay in a 75 page Order released in early April.  So, that is what we are focused on in this piece.  This April Order on stay is different from the NCBC’s May order staying the entire matter due to the appeal itself.  If the appeal goes away (in the ACC’s favor), then that May order regarding appeal immediately goes away.  

The NCSC can deny the Petition.  I cannot speak as to percentages of acceptances by the NCSC.  My knowledge generally of various appellate Courts like this is that a small percentage of Petitions For Writ are accepted.  If the NCSC refuses to accept it, then the trial court’s April order stands.

ACCEPTANCE

FSU obviously wants the NCSC to accept it.  The ACC may have a secondary reason as to why they would want the NCSC to accept the case.  Delay helps them.  The deadline for a school to withdraw from the ACC is 8.15 every year.  This means, for example, that if FSU gets a positive ruling and/or settlement and withdraws by 8.15.24, then they are out for the 2025 season.  So, every August that rolls by is one less season for FSU to be NOT in the Big10.  If this litigation lasts until 2036, then that works perfectly for the ACC in a sense!  

So, if the NCSC accepts this appeal and then takes months and months just to deny it, that still helps the ACC.  It may not functionally matter, because there is a second appeal by FSU.  That second appeal is referenced in this document.  It is an appeal “of right.” I get the sense that “of right” means they automatically get the appeal and no request to accept is needed.  This is for the Court’s Order on “personal jurisdiction and sovereign immunity grounds.”  

So, if the “of right” appeal takes X time that would be equal to or more than this Motion To Stay appeal, then whether the NCSC takes the Motion To Stay appeal does not matter from a delay perspective.  This Petition does not specifically relate to the “of right” appeal.  However, it references it multiple times and discusses the status.  This Petition states that the ACC and FSU are working together to put the paperwork together to start that process.  Given that the ACC keeps slow walking everything, expect that joint process to move slowly.  As soon as I get a copy of whatever they are filing, I will review and analyze, FYI.

ISSUES ON APPEAL

Let’s return to this appeal.  Here, FSU posits two issues that need to be resolved by the NCSC:

1.  Whether the trial court lacked subject matter jurisdiction to due to the ACC’s lack of standing when it filed the Initial Complaint.

2. Whether the trial court abused its discretion in denying the FSU Board’s request to stay this action under NCGS 1-75.12

The first one is basically whether the ACC followed its 2/3rds vote requirement for filing “material” lawsuits.  The second one is basically whether the Court was totally off its rocker when it released its 75 page Order in early April and the ruling is not based in legal reality.  

SALES IN THE LAW

The document itself, when including exhibits, is exceptionally lengthy.  The argument itself is 55 pages and that is what I reviewed.  The way they structured it didn’t make thematic sense to me.  This Petition is somewhat different than other types of Petitions and lawsuit filings out there.  They are selling themselves to the NCSC.  “Buy us, please!”  There are many, many other lawsuits doing the same to the NCSC.  So, the NCSC is browsing the aisles trying to figure out what lawsuits to buy.  

They do not get to their header entitled “Reasons Why The Writ Should Issue” until page 28.  They spend the first 27 pages or going over through their “Statement Of Facts.”  This is a fairly one sided analysis of the process to date and Court Order.  I will be the first to admit that I am not an expert in appeals (esp NC appeals) but if you are trying to convince the Court to issue a Writ (ie buy your case and not just deny it outright), I would put the section on why the Writ should issue first and then focus on that issue.  Not bury it on page 28 etc.

Per FSU’s Petition here, the NCSC should buy their case if:

1. The case presents important legal questions where the administration of justice will best be served by granting the Petition

2. The central issue presented in this appeal is a vital threshold issue upon which the remaining and extensive litigation to follow hinges

In determining whether the NCSC should buy this case, there is a 2 factor test:  

1. Likelihood that the case has merit or that an error was committed below

2. Whether there are extraordinary circumstances that justify issuing the writ.  

The first factor weighs the likelihood that there was some error of law in the case.  The second factor looks at a showing of substantial harm, considerable waste of judicial resources, or wide-reaching issues of justice and liberty at stake.  If I were writing this Petition, I would put that analysis on page 1.  

Then, I would focus on these two issues and the analysis thereunder.  The way they organized this is 27 pages of going through the allegedly wrong Order in extreme detail.  Then, this brief section on the standard and then they basically say everything they said in the first 27 pages all over again.  It seems needlessly lengthy and duplicative to me.  The NCSC has X number of cases begging them to be taken and in my view a Petition For Writ should be tight and to the point.  Make it easier to understand what you are selling.

ERRORS WITH TRIAL COURT

Overall, they really focus on the likelihood that the case has merit or that an error was committed below portion over the extraordinary circumstances portion.  They have page after page of their arguments about how the NCBC screwed up.  You’ve seen most of these arguments before, but I will summarize them below:

1. The ACC failed to have their 2/3rds vote ahead of time.  FSU is 100% correct about this.  FSU’s lawyers continue their needlessly cartoonish language by bolding the word Required and putting it in quotes every single time it is used.  Every single time.  You do not need to bold the word Required every single time it is used.  They are trying to make it pop off the page to the Judges, but I think it just looks dumb.  

2. The Florida action is broader than the NC action.  I’m honestly not entirely sure how relevant and important “broadness” is to this calculation of whether the lower court abused its discretion.  

3. The Judge in FL found that the ACC acted inappropriately in filing in NC.  FSU tries to use this to show errors by the NCBC Judge.  However, I am not sure how persuasive a FL state trial Court judge is to the NCSC.

4. The ACC’s January, 2024 vote to approve the ACC’s amended complaint is inoperative to ratify the original complaint.  FSU really focuses on this argument a lot, because if they are successful then they can try to say that they are the first filed complaint.  This would give them an advantage.

5. The ACC cannot sue FSU in NC due to sovereign immunity.  They try to make a delineation between FSU and the FSU Board.  The trial Order found that FSU had sufficient contacts with NC to allow for suit.  FSU tries to argue that the Court focused on the wrong entity and should have focused on the FSU Board.  Splitting hairs IMO

6. There was no actual controversy when the ACC sued.  FSU had not yet filed their lawsuit and was just “thinking” about it.  Seems ahistorical to me, but that is FSU’s argument.  

2/3RDS VOTE

So, that is what they spend the first 27 or so pages on.  Going through the history of the case to that point and outlining all their arguments why the trial Court’s Order is wrong.  Once they get into their legal argument starting on page 29ish, they really, really, really focus on the 2/3rds issue.  They spend pages and pages on that issue in both the “they never voted” and the “their January vote cannot retroactively approve the initial lawsuit” arguments.  I would say that that appears to be the main focus here.  

They really focus on getting an exception to the “first to file” laws that assist the ACC here.  They try to argue that the ACC filed on a “hunch” (their words) that FSU might file a lawsuit at some point.  Reminder that the ACC had a draft copy of the FSU lawsuit.  They again argue that FSU is the “true” plaintiff.  They are the plaintiff in FL and the ACC is the plaintiff in NC, but FSU argues that they are the REAL plaintiff because they are the ones who have been damaged.  The trial Court found that both were plaintiffs, but that the ACC can sue and be plaintiff because they were trying to confirm their GOR is valid.  

FLORIDA IP RIGHTS

They do spend some time on a relatively newer argument i.e. that all of the issues in dispute are Florida IP rights.  They try to argue that the only subject matter of the dispute here is FSU’s IP rights to games played in Florida.  My understanding is that the Judge in FL made some comments about how the ACC could be trying to “take” FSU’s IP rights.  So, FSU is trying to refashion this from a contract dispute to a “takings” issue.  In their 2nd Amended Complaint in FL, they cartoonishly refer to the NC dispute as the North Carolina Takings Case. So, they are trying to make it seem like the ACC is taking their rights and since their rights are based on FL, the NC case cannot proceed.  

Now, it is important to remember that “the Judge is wrong” is only part of the analysis.  Obviously, every appeal is going to scream to the heavens that the trial Judge is the wrongest wrong to ever wrong.  They then have to argue that there are “extraordinary circumstances.”  These extraordinary circumstances would go to whether there is justice that would be served by the NCSC accepting the case or whether these are key issues in the case and the rest of the case would be affected by the appeal.  

EXTRAORDINARY CIRCUMSTANCES

FSU cites to law that indicates extraordinary circumstances can mean when the issues in the appeal are “interrelated in nature to other issues on appeal as a matter of right.”  As a reminder, they are separately suing “of right” over a few other issues.  These issues apparently get an auto-appeal and so FSU says “Throw all the issues in the pot and make a great stew out of it!”  This seems like a reasonable argument to me.  I cannot speak as to the likelihood of success, but it makes sense to resolve all issues at the same time.  

They also argue that a Motion To Stay is a key threshold issue that would affect “judicial economy.”  What that means is that if the Court later finds that there was no jurisdiction or the FL case should have moved forward, then they would have wasted all their time on the case.  This also seems like a reasonable argument as a stay is a front level issue that should be resolved at the start of the case.  

These two arguments are essentially the extent of their arguments on extraordinary circumstances.  This whole section starts essentially on page 52 and goes to the middle of page 54, so it is 2.5 pages.  I have no opposition to spending pages on the “lower Court got it wrong part,” but they really spend minimal time on the other part of the analysis.  I would have really buffed that part up more.  The arguments they have there are reasonable, so it’s not like they have nothing to say.  Just see about including more arguments and focusing more on that.  

CONCLUSION

There are so many moving parts to all these lawsuits in multiple states.  It is hard to keep track of everything, so I am trying to break it down one filing at a time.  In this filing, the topline is that FSU is asking the NCSC to overturn the NC court’s ruling that the ACC v. FSU lawsuit in NC can proceed.  The NCSC could say no and end it there.  If the NCSC says yes, then the parties litigate that issue for a while and then the NCSC says affirmed or overturned as to the lower Court’s Order.  Statistically, the vast majority of appeals are affirmed, but every case is different.

Expect their second appeal regarding the Motion To Dismiss to come down the pike soon.  As soon as we get that, I will try to break it down.  Thank you so much for reading, I really appreciate it!!!