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Square Pegs and Round Holes: Getting Your Appeal Before the Court

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. v. Worlock, the defendants argued that the plaintiff’s claims were barred by res judicata. The trial court denied the defendants’ motion for summary judgment based on that defense, and the defendants appealed. After all, there is precedent that denials of motions for summary judgment based on res judicata can affect a substantial right. See, e.g., Heritage Operating, L.P. v. N.C. Propane Exch., LLC, 219 N.C. App. 623, 627-28, 727 S.E.2d 311, 314-15 (2012). However, the Court of Appeals dismissed the appeal. The basis for the dismissal was that the defendants failed to demonstrate that there was a possibility of inconsistent verdicts in their specific situation, and therefore this particular interlocutory order (even though it related to res judicata) did not affect a substantial right.

Similarly, in Bost v. Heller, the court dismissed an appeal sua sponte. There, a mother and son were fighting over ownership to a piece of property. The trial court granted the defendant’s motion for summary judgment on the quiet title action, and the plaintiff sought to appeal. But the order was interlocutory since the trial court had not addressed outstanding counterclaims. The plaintiff thus argued that the order affected a substantial right because the counterclaims were dependent on who owned the property. However, the Court of Appeals found that the issue common to the quiet title claim and the counterclaims was one of law, not fact, and therefore could not create the possibility of inconsistent verdicts.

The takeaway: make sure that you have thoroughly researched the substantial right issue and how it applies to your specific facts.

But at least a party can always rely on the writ of certiorari, right?

Wrong again. As we explained two weeks ago in discussing State v. Biddix, certiorari is only available in certain circumstances. Today, the court reaffirmed this rule. In State v. Miller, the defendant pleaded guilty to driving while impaired then sought to challenge denial of his motion to dismiss the charge. The court acknowledged that a defendant can generally seek review by writ of certiorari, but the language of the rule controls. The writ may be issued in “appropriate circumstances,” but only when the right to prosecute an appeal was lost through failure to take timely action, when there is no right to appeal from an interlocutory order, or when the trial court denied a motion for appropriate relief. N.C. R. App. P. 21(a)(1). Because none of these conditions applied, the court was unable to issue a writ of certiorari. This language seems to give added support to the majority opinion in Biddix.

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One Response to "Square Pegs and Round Holes: Getting Your Appeal Before the Court"

  • Beth Scherer
    October 21, 2015 - 3:44 pm Reply

    Looks like the Court of Appeals’ trimming down of the writ of certiorari’s power continues. That has me very concerned.

    I also find it interesting that the Court of Appeals is still not citing or discussing the Supreme Court’s most recent opinion on certiorari in State v. Stubbs, ___ N.C. ___, ___, 770 S.E.2d 74, 76 (2015) (“Therefore, while N.C. R. App. 21 might appear at first glance to limit the jurisdiction of the Court of Appeals, the Rules cannot take away jurisdiction given to that court by the General Assembly in accordance with the North Carolina Constitution.)”; see also https://www.ncapb.com/2015/04/16/supreme-court-of-north-carolina-amends-appellate-rule-21. Continued thanks to “Publius” for alerting us to Stubbs. I’ve noted in the comments to the Biddix post that a motion to withdraw has been filed in Biddix based on Stubbs. https://www.ncapb.com/2015/10/07/the-writ-of-certiorari-a-somewhat-less-powerful-tool/

    Even if State v. Miller involved somewhat different arguments than Biddix, I would think that before chipping away at the writ of certiorari’s power, the Court of Appeals would want to address the Supreme Court’s latest pronouncement on the power of the certiorari writ.

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