A Typical Petition for Discretionary Review
Notes on the Due Date for a Petition for Discretionary Review:
Following a determination by the Court of Appeals, the Petition for Discretionary Review must be filed and served within 15 days after the mandate of the Court of Appeals has been issued to the trial tribunal. See N.C. R. App. P. 15(b). The mandate issues automatically on the 20th day after the issuance of the Court of Appeals' opinion. See N.C. R. App. P. 32(b). Counsel does not receive any notice that the mandate has issued. Counsel should therefore be careful to calculate his or herself the deadline for filing the Petition for Discretionary Review as 35 days after the issuance of the opinion (i.e., 20 plus 15). See N.C. R. App. P. 15(b). The Petition for Discretionary Review must be actually received by the Clerk of the Supreme Court by the 35th day to be considered timely. Newly revised Rule 26(a) now clarifies, however, that "[a]n item is filed in the appellate court electronically when it is received by the electronic-filing site."No. ___________ TWENTY-FOURTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
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[Plaintiff's Name as in Final Judgment or Order on Appeal], | From Avery County [Case Number from the Court of Appeals] |
Plaintiff, | |
v. | |
[Defendant's Name as in Final Judgment or Order on Appeal], | |
Defendant. |
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PETITION FOR DISCRETIONARY REVIEW UNDER N.C. GEN. STAT. § 7A-31(C)
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Notes on the Cover Page of Petition for Discretionary Review:
The petition number in the upper left corner is blank, to be filled in by the Supreme Court. Note that the Court of Appeals docket number, not the trial court docket number, appears below the county name on the right side. See N.C. R. App. P. Appendix B. Consult Rule 15, Appendix D, and N.C. Gen. Stat. § 7A-31 for time limits and similar information.INDEX
TABLE OF AUTHORITIES .......................................... ii
FACTS ........................................................................... 1
REASONS WHY CERTIFICATION SHOULD ISSUE 2
I. THIS CASE INVOLVES LEGAL PRINCIPLES OF MAJOR SIGNIFICANCE TO THE JURISPRUDENCE OF THIS STATE ................. 2
A. Because Century is not a "claimant" or "policyholder" and does not possess a "covered claim" under the Act, it is not entitled to any recovery from the Association............................................................ 2
B. This Court's precedents foreclose the Court of Appeals' expansive interpretation of the word "claimant" .................................................... 2
II. THE SUBJECT MATTER OF THIS APPEAL HAS SIGNIFICANT PUBLIC INTEREST .......... 3
ISSUE TO BE BRIEFED .............................................. 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 above Index example illustrates another form of an Index, with a mixture of ALL CAPS and lower-case section titles. The dot leaders ("....") for the page numbers are optional. The Petition for Discretionary Review only requires an index if it is ten pages or more in length. See N.C. R. App. P. Appendix B.TABLE OF 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 the Table of Authorities:
If the Petition for Discretionary Review is fewer than ten pages, the Table of Authorities may be omitted. See N.C. R. App. P. Appendix B. If the Table of Authorities is included, the format is the same as any brief (see A Typical Appellant's Brief, supra, for a fuller discussion on the formatting).No. ___________ TWENTY-FOURTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
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[Plaintiff's Name as in Final Judgment or Order on Appeal], | From Avery County [Case Number from the Court of Appeals] |
Plaintiff, | |
v. | |
[Defendant's Name as in Final Judgment or Order on Appeal], | |
Defendant. |
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PETITION FOR DISCRETIONARY REVIEW UNDER N.C. GEN. STAT.§ 7A-31(c)
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TO THE HONORABLE SUPREME COURT OF NORTH CAROLINA:
Plaintiff, the North Carolina Insurance Association (the "Association"), respectfully petitions the Supreme Court of North Carolina to certify for discretionary review the judgment of the North Carolina Court of Appeals filed on 21 February 2023 in this cause, on the grounds that the subject matter of this case involves legal principles of major significance to the jurisprudence of this State and raises issues of significant public interest. In support of this Petition of Discretionary Review, the Association shows the following:
FACTS
The Association filed a complaint on 23 June 2022 in the Superior Court of Avery County. Judge Jonathan R. Smith granted summary judgment in favor of the defendant, Mid-Century Indemnity Co. ("MidCentury") at the 21 November 2017 Civil Session. The Association filed notice of appeal to the Court of Appeals on 1 December 2017. The Court of Appeals affirmed the order of dismissal in a published opinion, filed 14 February 2018.
The Association is an unincorporated non-profit entity created pursuant to the North Carolina Insurance Guaranty Act . . . [factual background continues]
Notes on the Facts:
The first part of the Facts section should set forth a statement of the case-the procedural history of the case through the trial tribunal and the Court of Appeals. See N.C. R. App. P. Appendix D. The second part of the Facts section should set forth a statement of the facts- enough for the Supreme Court to understand the basis of the Petition for Discretionary Review. See id.REASONS WHY CERTIFICATION SHOULD ISSUE
The decision below imposes a liability on the Association that is contrary to the language and intent of the statutory scheme governing the Association's existence and presents . . . [argument continues]
Notes on the Reasons Why Certification Should Issue:
The focus of this section should be to show either: (a) how the opinion of the Court of Appeals conflicts with prior decisions of the Supreme Court; (b) how the case is significant to the jurisprudence of the State; or (c) why the case is one of significant public interest. See N.C. Gen. Stat. § 7A-31, Rule 15 (2017); N.C. R. App. P. Appendix D. Some factual and legal argument will be necessary in the Reasons Why Certification Should Issue section, but the new brief will be the place for the substantive discussion of the arguments, if the Supreme Court takes the case. See N.C. Gen. Stat. § 7A-31, Rule 15 (2017); N.C. R. App. P. Appendix D. N.C. Gen. Stat. § 7A-31 explains the procedures for petitions filed prior to the determination of the case in the Court of Appeals.ISSUE TO BE BRIEFED
In the event the Court allows this Petition for Discretionary Review, the Association intends to present the following issue in its brief to the Court:
I. Whether a claim founded upon the doctrine of equitable subrogation entitles an insurer to recover from the Association to the extent of the Association's statutory obligations, despite the Act's clear exclusion of claims founded upon subrogation from the definition of a "covered claim."
Note on the Issue to be Briefed:
Be careful to be precise and complete in this section, because "[a]n issue may not be briefed if it is not listed in the petition." See N.C. R. App. P. Appendix D.Respectfully submitted, this the ___ 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-Appellant
160 N. Main Street
Newland, NC 28786
(828) 456-1245
State Bar No. 12345
lawyer@lawfirm.com
CERTIFICATE OF SERVICE
It is hereby certified that the foregoing Petition for Discretionary Review, pursuant to N C. Gen. Stat. § 7A-31, has been served this day by e-mail, addressed as follows:
[Counsel's name and e-mail address]
This the ___ day of ________, 2023.
Electronically submitted
[Name of Counsel]
[Attach a copy of the decision of the Court of Appeals if you are petitioning after a decision by that court.]
Notes on "Bypass Petitions":
N.C. Gen. Stat. § 7A-31 and Rule 15 allow a party to petition for Supreme Court review of certain matters either before or after determination by the Court of Appeals. The Petition for Discretionary Review cannot be filed until the appeal is docketed in the Court of Appeals, which occurs shortly after the final record on appeal is filed. See N.C. R. App. P. Rule 15(a). A Petition for Discretionary Review filed before the Court of Appeals determines the matter is commonly referred to as a "Bypass Petition" or "Bypass PDR (Petition for Discretionary Review)." Bypass Petitions are rarely granted. The filing of a Bypass Petition does not stay proceedings in the Court of Appeals. Parties may, of course, move the Court of Appeals for an extension of time in which to file their briefs while a Bypass Petition is pending before the Supreme Court. It is not uncommon, however, for briefing in the Court of Appeals to proceed before the Bypass Petition has been ruled upon.