certiorari

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Last week’s batch of opinions from the Court of Appeals includes a procedurally complicated case in which the court granted a writ of certiorari–only to dismiss a large portion of the appeal “as untimely and interlocutory.”  The opinion shines light on several faulty presumptions that can trip up an appeal. Intrigued?  Read on.

In Engility v. Nell, the defendants sought review of two orders:  (1) a February 2017 order granting a motion to quash and imposing sanctions, and (2) a Rule 60 order denying relief as to the February 2017 order because the defendants contended that they had not received adequate notice and an opportunity to be heard on the motion to quash.… Continue Reading

**Update:  Defendant CHS has filed a petition for writ of certiorari, here.**

Last year, something unusual happened in a business court case. In the course of denying summary judgment to a defendant, Judge Gale recognized that the legal question presented was “significant and controlling” and “require[d] an interpretation of two opinions from the North Carolina Supreme Court.”  Judge Gale “urge[d] the supreme court to docket the appeal” from his order in Kornegay Family Farms, LLC v.… Continue Reading

A few months ago, I wrote about a case in which the Court of Appeals held that a notice of appeal was filed too early because the time period for filing a notice of appeal does not begin until judgment is entered. See Mannise v. Harrell. In that post, I indicated that it was “unclear how far the Mannise holding extends.”… Continue Reading

You should always file your notice of appeal as soon as possible, right? Wrong. This is one instance in which being early can actually be detrimental to your client’s rights. In Mannise v. Harrell, the Court of Appeals determined that a notice of appeal filed too early was improper and could only be reviewed by writ of certiorari.

The case involved a domestic dispute between two parents in which the defendant father moved to dismiss the action for lack of subject matter jurisdiction and personal jurisdiction.… Continue Reading

It was just over one year ago that I wrote about the authority of one appellate panel to overrule another panel when the issue is one of jurisdiction. Last week, the Supreme Court of North Carolina issued an opinion in that case that helps to explain the jurisdiction of the appellate courts. The opinion may also offer a preview of the analysis we will see in the pending State v.… Continue Reading

A Petition for Writ of Certiorari continues to be the most powerful tool in the Supreme Court’s arsenal.  Last Friday, the North Carolina Supreme Court used its certiorari authority to revive an appeal involving the State Bar and a sitting superior court judge.  The Court did so six months after the appeal was dismissed by the Court of Appeals, and four months after it had declined to issue a PDR.… Continue Reading

Our state appellate system allows for appeals from final judgments, appeals from interlocutory orders that affect a substantial right, and appeals from orders that are final as to one claim or party if the trial court certifies there is no just reason for delay. But there is a key category of order that is missing from this list:  orders turning on a controlling issue of law.… Continue Reading

Sometimes the juiciest info is found in the comments.  In October, I blogged about State v. Biddix—a Court of Appeals’ opinion that appeared to significantly limit the Court of Appeals’ certiorari authority under Appellate Rule 21.  Even though a state statute specifically granted a criminal defendant the right to challenge his guilty plea by writ of certiorari, the Biddix court held that this statutory authority was trumped by Appellate Rule 21, which does not specifically authorize review of guilty pleas by certiorari.… Continue Reading

You want to appeal an interlocutory order, and with great relief you find a case in which your legal issue affected a substantial right that allowed for such an appeal. Phew. You are in the clear, right?

Wrong. Just because one case found a substantial right does not mean that the court will find it in your case. In Dewey Wright Well & Pump Co.… Continue Reading

Yesterday’s batch of opinions contained an unusual nugget: an entire opinion devoted to arguably the most powerful of all appellate tools, the writ of certiorari. In State v. Biddix,  the Court of Appeals denied a petition for writ of certiorari by concluding that the court was prohibited from invoking certiorari to address an issue on appeal, rather than simply exercising its discretion to deny the petition. … Continue Reading