A Typical Petition for Writ of Certiorari
Notes on the Petition for Writ of Certiorari:
Rule 21(a) dictates the scope of the writ of certiorari as follows: (1) Review of the Judgments and Orders of Trial Tribunals. The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review pursuant to N.C.G.S. § 15A-1422(c)(3) of an order of the trial court ruling on a motion for appropriate relief. (2) Review of the Judgments and Orders of the Court of Appeals. The writ of certiorari may be issued by the Supreme Court in appropriate circumstances to permit review of the decisions and orders of the Court of Appeals when the right to prosecute an appeal of right or to petition for discretionary review has been lost by failure to take timely action, or for review of orders of the Court of Appeals when no right of appeal exists.N.C. R. App. P. 21(a).
"A writ of certiorari is not intended as a substitute for a notice of appeal. If this Court routinely allowed a writ of certiorari in every case in which the appellant failed to properly appeal, it would render meaningless the rules governing the time and manner of noticing appeals. Instead, as our Supreme Court has explained, [a] petition for the writ must show merit or that error was probably committed below." State v. Bishop, 255 N.C. App. 767, 769, 805 S.E.2d 367, 369 (2017) (citations and quotation marks omitted).No. ___________ TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
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[Plaintiff's Name as in Final Judgment or Order on Appeal], | From Avery County [Case Number as in Final Judgment or Order on Appeal] |
Plaintiff, | |
v. | |
[Defendant's Name as in Final Judgment or Order on Appeal], | |
Defendant. |
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PETITION FOR WRIT OF CERTIORARI
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Notes on the Cover Page for Petition for Writ of Certiorari:
The petition number in the upper left corner is blank, to be filled in by the appropriate appellate court. When petitioning to the Supreme Court from a decision of the Court of Appeals, the Court of Appeals docket number should appear below the county name instead of the trial court docket number on the right side. For an example of the inside cover page, refer Appendix B and example below. Consult Rule 21 and Appendix D for the circumstances in which this petition is appropriate.INDEX
TABLE OF CASES AND AUTHORITIES .................... ii
FACTS ............................................................................ 2
REASONS WHY WRIT SHOULD ISSUE .................... 2
I. THE EXISTENCE OF THE TRIAL COURT'S INTERLOCUTORY ORDER IMPAIRS THE DEFENSE OF THIS CASE AND MAKES IT IMPRACTICAL FOR DEFENDANT TO PROCEED FURTHER IN THE TRIAL COURT.................................................................. x
II. THE TRIAL COURT'S ORDER IS DIRECTLY CONTRARY TO THIS COURT'S RECENT DECISIONS ON THIS SUBJECT ....................... x
ATTACHMENTS ........................................................... 3
VERIFICATION ............................................................ 4
CERTIFICATE OF SERVICE ....................................... 5
Notes on the Index:
Index entries are indented 0.75-inch from both standard 1-inch margins (or, put another way, the index line has margins of 1.75-inches from each side, yielding a 5-inch line in the middle). See N.C. R. App. P. Appendix B. The Petition for Writ of Certiorari only requires an index if it is ten pages or more in length. See id.TABLE OF CASES AND AUTHORITIES
Cases:
City of Greensboro v. Reserve Ins. Co., 70 N.C. App. 651, 321 S.E.2d 232 (1984) ................................... 7
Statutes:
N.C. Gen. Stat. § 15A-221 (2017) ................................ 13
Rules:
N.C. R. Civ. P. 10........................................................... 4
Other Authorities:
U.S. Const. amend. IV ................................................. 14
Notes on Table of Authorities:
If the Petition for Writ of Certiorari is fewer than 10 pages, the Table of Authorities may be omitted. See N.C. R. App. P. 26(g)(2). If included, the format is the same as any brief (consult the A Typical Appellant's Brief section, supra, for a fuller discussion on the formatting).No. ___________ TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
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[[Plaintiff's Name as in Final Judgment or Order on Appeal], Plaintiff, | From Avery County [Case Number as in Final Judgment or Order on Appeal] |
v. | |
[Defendant's Name as in Final Judgment or Order on Appeal], Defendant. |
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PETITION FOR WRIT OF CERTIORARI
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TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA:
Plaintiff-Petitioner, the North Carolina Insurance Association ("the Association"), respectfully petitions the Court of Appeals of North Carolina to issue its writ of certiorari, pursuant to Rule 21 of the North Carolina Rules of Appellate Procedure, to review the partial summary judgment of the Honorable Frank Lee Wright of Avery County Superior Court, dated 21 June 2022, [further describe the order appealed from, if necessary]. In support of this petition, the Association shows the following:
STATEMENT OF THE FACTS
The Association filed a complaint on 23 June 2022 in the Superior Court of Avery County. The trial court granted summary judgment in favor of Defendant as to the applicability of the statute of limitations governing the Association's first and second causes of action . . . [discussion of facts continues]
Notes on the Statement of the Facts:
Here set out the factual background necessary to understand why you are petitioning for certiorari (e.g., failure to perfect an appeal of right because of circumstances constituting excusable neglect; non-appealability of an interlocutory order, etc.). See N.C. R. App. P. Appendix D. If the transcript could not be procured from the court reporter, this statement should include an estimate of the date that the transcript will become available, with a supporting affidavit from the reporter. See id.REASONS WHY WRIT SHOULD ISSUE
The trial court's partial summary judgment order has the effect of imposing a liability on the Association that is contrary to this Court's recent decisions in . . . [argument continues]
Notes on the Reasons Why Writ Should Issue:
Here set out the factual and legal argument to justify the issuance of the writ of certiorari. See N.C. R. App. P. Appendix D. Consult Rule 21 for the bases of the writ of certiorari, and tailor the argument to that law. Because this writ is so flexible, the argument section of the petition is likewise flexible. Brevity, however, is always appreciated.ATTACHMENTS
For the Court's consideration, attached to this Petition of Writ of Certiorari are certified copies of the partial summary judgment sought to be reviewed, and [list any other certified items from the trial court record and any affidavits attached as pertinent to consideration of the petition].
Wherefore, the petitioner respectfully prays this Court to issue its writ of certiorari to the Avery County Superior Court to permit review of the trial court's partial summary judgment, upon issues stated as follows: [list the issues, in the same manner provided for in the Rules for a petition for discretionary review]; and that the petitioner have such other relief as to the Court may deem proper.
Respectfully submitted, this ____ day of _________, 2023.
[LAW FIRM NAME, if any, and only if counsel is retained and not appointed]
Electronically submitted
__________________________
[Name of Counsel]
Attorney for Plaintiff-Petitioner
160 N. Main Street
Newland, NC 28786
(828) 456-1245
State Bar No. 12345
lawyer@lawfirm.com
Notes on the Attachments:
Rule 21(c) requires "certified copies of the judgment, order, or opinion or parts of the record which may be essential to an understanding of the matters set forth in the petition." N.C. R. App. P. 21(c). The lower court clerk can provide to the petitioner certified copies of the documents required by this Rule. As a practice pointer, practitioners facing such difficulty should consider submitting such materials as attachments to the petition or motion, using the attorney Verification to testify to their authenticity.VERIFICATION
The undersigned [petitioner or counsel for petitioner], after being duly sworn, says:
The contents of the foregoing Petition for Writ of Certiorari are true to my knowledge, except those matters stated upon information and belief and, as to those matters, I believe them to be true.
[If verified by counsel for petitioner, recast this to state that the material allegations of the petition are true to the attorney's personal knowledge.]
_________________________
[Name of Petitioner or Counsel]
___________ County, North Carolina
Sworn to (or affirmed) and subscribed
before me by [name of principal]
Date:____________
[Notary's Printed or Typed Name], Notary Public
My Commission expires:
Notes on the Verification:
Rule 21(c) requires that "[t]he petition shall be verified by counsel or the petitioner." N.C. R. App. P. 21(c). The Verification immediately follows on the page after the signature block of counsel. See N.C. R. App. P. Appendix D.CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing Petition for Writ of Certiorari has been served this day by e-mail, addressed as follows:
[Opposing counsel's name and e-mail address]
This the ____day of _________, 2023.
Electronically submitted
______________________________
[Name of Counsel]
[Following the Petition for Writ of Certiorari, attach certified copies of the documents described in the Attachments section. See N.C. R. App. P. Appendix D.]