As a good year-end reminder for practitioners, on New Year’s Eve the North Carolina Court of Appeals published an opinion in MYC Klepper/Brandon Knolls L.L.C. v. Bd. of Adjustment highlighting the lack of precedential value of unpublished opinions.  In Klepper the appellee argued that the Buncombe County Superior Court should have dismissed appellant’s petition for writ of certiorari seeking review of a decision by the City of Asheville Board of Adjustment’s for lack of subject matter jurisdiction.  In support of its argument, the appellee relied on two unpublished cases from the North Carolina Court of Appeals that appeared on their face to support the contention that subject matter jurisdiction was lacking in the trial court.  However, Judge Geer rejected the appellee’s argument, noting that the cases relied upon were unpublished and therefore “not binding on this Court.”  She went on to say that to the extent the unpublished cases stood for the proposition for which they were offered, they were in conflict with a published case from the Court; the published case was the controlling precedent and the trial court therefore did have subject matter jurisdiction over the petition.  Luckily for appellee it had multiple arrows in its quiver, and the Court went on to affirm the trial court’s determination on the merits (based on published appellate court opinions).

-Patrick Kane