A Typical Motion to Consolidate Appeals
Notes on the Motion to Consolidate:
This motion is appropriate to consolidate for hearing two separate appeals from two separate cases that involve a similar legal issue or issues. Any party to an action may move to consolidate two or more appeals "that involve common issues of law." N.C. R. App. P. 40. After they have been consolidated, the actions will be calendared and heard as a single case. If granted oral argument, the parties in a consolidated appeal may allocate their argument time under Rule 30(b) by written agreement. This agreement must be filed with the appropriate appellate court prior to oral argument. Unless modified by the appellate court, the written agreement will control. There are other situations in which parties seek to "consolidate" appeals that do not fall within the narrow scope of Rule 40. For example, where an appeal involves more than one appellant (including a cross-appeal), then Rule 11(d) requires that the parties file a single record on appeal. No motion is required for this "consolidation" of appeals. Each appellant sets forth its proposed issues on appeal separately in the single record on appeal. N.C. R. App. P. 10(b), (c), 11(d). Another example of "consolidation" can arise when a party wishes to appeal two different orders entered in the same case. If the orders are entered sufficiently close in time, the party may consolidate the appeals into a single record on appeal without the filing of a motion, provided that the party acts within the deadlines applicable to the appeals as prescribed by the Rules. Remember that per the November 2020 Amendments, Rule 37(c) now requires that appellate motions in all cases, except for appeals involving pro se litigants, document: (1) "counsel's good-faith effort to inform counsel for all other parties of the intended filing of the motion," (2) "whether the other parties consent to the relief being sought," and (3) "whether any other party intends to file a response." N.C. R. App. P. 37(c).No. COA17-123 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 |
Plaintiff, | |
v. | |
[Defendant's Name as in Final Judgment or Order on Appeal], | |
Defendant. |
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MOTION TO CONSOLIDATE APPEALS
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TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA:
Defendant-Appellee XYZ Corp., Inc., through undersigned counsel, moves this Court under Rule 40 of the North Carolina Rules of Appellate Procedure to consolidate this appeal for hearing with another appeal in a related case. In support of this motion, XYZ Corp. shows:
1. This appeal from Avery County, Case No. 21 CVD 3375, was docketed on 22 April 2022.
2. A similar appeal from Forsyth County, Case No. 20 CVD 4478, was docketed on 10 May 2022.
3. Both actions involve common issues of law, namely [describe the common issues of law].
4. It would be reasonable and efficient for the Court to consider the two appeals together.
5. Pursuant to Appellate Rule 37(c), the undersigned counsel certifies that all counsel of record were notified of Defendant-Appellee's intent to file this Motion to Consolidate Appeals. Plaintiff-Appellant does not object to this Motion and does not intend to file a response.
WHEREFORE, XYZ Corp. respectfully moves this Court under Appellate Rule 40 to consolidate these appeals.
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 Defendant-Appellee
245 S. Main Street
Newland, NC 28786
(919) 456-1245
State Bar No. 67890
lawyer@lawfirm.com
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing MOTION TO CONSOLIDATE APPEALS 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]