Petitions for Rehearing pursuant to Rule 31 of the North Carolina Rules of Appellate Procedure are rarely allowed in the Court of Appeals. Anecdotal evidence suggests that the Court allows fewer than five percent annually, and the percentage may be as low as one percent. Given that, if the Court allows a Petition for Rehearing one might conclude that the reason for rehearing is because the Court intends to change its original decision. However, a recent case before the Court shows that a rehearing does not necessarily portend a different result.
In Fox v. City of Greensboro, the Court issued an unpublished opinion on 1 October 2013 dismissing some individual defendants’ appeal of the trial court’s denial of their motion to dismiss as impermissibly interlocutory. Those defendants petitioned for rehearing and that Petition was allowed on 21 November 2013. After rehearing, on Tuesday the Court issued another opinion in the case, superseding the October opinion. However, the new opinion’s analysis of the issues is essentially unchanged from the original opinion and the end result is identical—the Court dismissed the defendants’ appeal as interlocutory.
So, from a practitioner’s standpoint, if you receive an unfavorable result and have a persuasive argument that the Court should revisit the decision, Fox shows that the Court will seriously entertain a Petition for Rehearing. But, if you are one of the lucky few who actually has a Petition allowed, don’t expect that after rehearing the opinion will change and go your way.