Fourth, if all else fails, the appellate court can still exercise its certiorari jurisdiction. The Court of Appeals has the statutory power to do so sua sponte under N.C. Gen. Stat. § 7A-32(c) (“The Court of Appeals has jurisdiction . . . to issue the prerogative writs, including . . . certiorari, . . . in aid of its own jurisdiction.”). But litigants should not rely on such grace or sneak a request for certiorari into a footnote in some other filing, the panel explained.

Moreover, in the event that the amendment of the record did not cure the procedural defect, the panel majority went on to grant the defendant’s petition for writ of certiorari. The Court explained that even though violations of Rule 3 can divest the Court of jurisdiction to consider an appeal, the Court’s discretion pursuant to N.C.G.S. § 7A-32(c) cannot be limited by the appellate rules (see State v. Stubbs, 368 N.C. 40 (2015)); thus, “if a valid statute gives the Court of Appeals jurisdiction to issue a writ of certiorari, Rule 21 cannot take it away.”The panel majority therefore exercised jurisdiction over the appeal and, reviewing the merits, determined that the trial court erred in not allowing the defendant to be heard on the issue of attorney’s fees. The judgment was vacated, and the case remanded.

Frost v. Mazda Motor of Am., Inc., 353 N.C. 188, 193, 540 S.E.2d 324, 327 (2000).Under N.C.G.S. § 7A-32(b) (2015), the NC Supreme Court has general power to supervise and control the proceedings of any of the other courts of the General Court of Justice. The Court invoked this power and bypassed the NC Court of Appeals to review the grant of class certification in Fisher because it felt “the subject matter of this case implicates the public interest to such a degree that invocation of our supervisory authority is appropriate.”

This would comport with the General Assembly’s general grant of authority to the court of appeals “to issue the prerogative writs, including . . . certiorari . . . in aid of its own jurisdiction, or to supervise and control the proceedings of any of the trial courts.” N.C. Gen. Stat. § 7A-32(c). Putting aside the question of the potentially more far-reaching impacts of this decision on the writ of certiorari, an appellant like Mr. Biddix faces a much more basic quandary: The law gives him a right to request appellate review, but what use is that right if the appellate rules keep him from making that request in the first place?