Common wisdom suggests that it is extremely difficult to have a Petition for Discretionary Review (PDR) granted, allowing you to obtain review in the Supreme Court of North Carolina from a unanimous Court of Appeals decision. That wisdom may be outdated.
Today, the Supreme Court granted ten such petitions—four in civil matters, five in criminal matters, and one in a juvenile matter. This is well above the historical norm. Remember, just about every petition granted will lead to an orally argued case, with the potential to establish new precedent and clarify uncertainties in the law.
The civil PDRs granted include:
- the $80 million public funding dispute between the Charlotte Motor Speedway and the County of Cabarrus (Charlotte Motor Speedway, LLC v. County of Cabarrus)
- a dispute involving spousal guarantees under the Equal Credit Opportunity Act, 15 U.S.C. 1691 (RL Regi North Carolina, LLC v. Lighthouse Cove, LLC)
- a condemnation case involving an alleged regulatory taking (Town of Midland v. Wayne); and
- a land use appeal turning on whether an interlocutory order denying a motion to add parties was immediately appealable (Smith v. Lake Bay East, LLC).
We will focus on the last of these today, and will circle back and discuss the other three later.
In Smith v. Lake Bay East, LLC, Plaintiffs purchased a home in the “Bay Tree Lakes” subdivision in Bladen County. After moving in, they allege that the developer Defendants began raising the water level of a canal behind the Plaintiffs’ house to allow boat traffic, allegedly causing moisture and mold problems for Plaintiffs. It is admitted that the Defendants had reached a mediated settlement with the home’s prior owners related to the water level of the canal. Plaintiffs allege that the new water level breaches that mediated agreement, while Defendants deny it.
During the pendency of the action, Defendants filed a motion to add “the owners of all the lots in the Bay Tree Lakes subdivision,” under the theory that their properties would be affected by the outcome of the suit. The trial court denied the motion. Defendants appealed.
It is well-established that an order declining to name an entity as a necessary party is interlocutory and generally not immediately appealable. At the same time, in a case in which the trial court added parties in a dispute over a possible easement, the Supreme Court of North Carolina held that the order involved “a question affecting title” and was therefore subject to immediate review. N.C. DOT v. Stagecoach Village.
The Court of Appeals dismissed Defendants’ appeal in the Smith v. Lake Bay East case, finding the Stagecoach Village rule to be confined to condemnation cases.
Defendants petitioned for discretionary review, arguing that the canal level involves “a question affecting title” for all residents of the neighborhood because they all have a boating easement through the canal that may be impaired by Plaintiffs’ suit.
The Supreme Court recently granted the PDR (and announced it today). The case will probably be argued in the spring.