Petition for Writ of Certiorari

**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

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

When a local board of adjustment makes an adverse land-use decision on a landowner’s application for a conditional use permit or a variance, a special statute kicks in to dictate the procedures for seeking further review. Section 160A-393 governs such “appeals of quasi-judicial decisions of decision-making boards” by directing appeals to be filed in the superior court “in the nature of certiorari.” … 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

Over the past few months, we have shared several  potential problems created by the Business Court Modernization Act.  Nonetheless, we held a few potential traps close to our vest because, frankly, we were unsure if any of the unique circumstances necessary to trigger the traps would arise.  Recently, we changed our mind on the improbability of those scenarios based on an October 8 order from the North Carolina Business Court. … Continue Reading

Yesterday the North Carolina Court of Appeals issued what I am going to be so bold as to call the most highly anticipated opinion in 2015 for appellate practitioners. For those new to the Ehrenhaus discussion, take a look at our prior posts here and here and here. The central question is whether the provision in Appellate Rule 3 requiring that a notice of appeal be filed “with the clerk of superior court” can, in a North Carolina Business Court case, be satisfied by e-filing the notice of appeal through the Business Court website, or can only be satisfied by timely filing of the notice of appeal with the clerk of superior court in the case’s “home county.”… Continue Reading

For Business Court cases designated on or after October 1, 2014, the Business Court Modernization Act sends all appeals to the Supreme Court of North Carolina.

Or does it?

While preparing to deliver a joint CLE presentation on appellate traps, we noticed a couple of glitches in the revised N.C. Gen. Stat. § 7A-27 that might have big consequences.… Continue Reading

How is that possible?  The scenario is actually quite simple:

Timely Filed Notice of Appeal + Timely Date on Certificate of Service + Untimely Postmark Date.

Rule 3(a) of the North Carolina Rules of Appellate Procedure sets forth the rule for “Filing the Notice of Appeal.”  A timely filed notice of appeal, however, does not always equate a timely noticed appeal. … Continue Reading

While reading through the latest batch of opinions from the North Carolina Court of Appeals, I was struck (again) by how often appellate cases are not decided on the merits but rather on issues of appellate procedure. At least one quarter of the published and unpublished opinions I reviewed had at least one issue that involved error preservation or appellate procedure.… Continue Reading

Continuing a recent trend of tackling more thorny civil cases, the Supreme Court of North Carolina will hear three high-profile civil cases this October.  Notably, two of the three cases are before the Court in its discretion (not by appeal of right).

As part of our ongoing coverage of the Supreme Court, we offer here a preview of the issues confronting the Court in those three cases. … Continue Reading