Tuesday, November 20, 2007, 8:19 PM

COA Splits On Appealability Of Denial Of Motion To Dismiss

In two companion cases today styled Reid v. Cole (see here and here), the NC Court of Appeals (COA), over dissent, permitted interlocutory appeals from a trial court order which denied a motion to dismiss. The COA did so without deciding whether a substantial right was at stake, by electing in its discretion to grant a writ of certiorari. In fact, the appellants in one of the companion cases failed to file a timely notice of appeal, but the COA elected to cure that defect, too, by granting a writ of certiorari. (The majority then affirmed on the merits.)

Judge Hunter authored the majority decisions, joined by Judge Wynn.

Judge Jackson dissented. She concluded that no substantial right was implicated and there was no basis for granting a writ of certiorari in what seemingly was a garden variety interlocutory appeal.

The lesson of this case: don't forget about the writ of certiorari if you're pursuing an interlocutory appeal.


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