Does a Petition for Discretionary Review Divest a Trial Court of Jurisdiction

The place where a a trial court's jurisdiction over a example on appeal meets the competing jurisdiction of the appellate court over that same example is is a busy intersection.  It is often difficult to tell when the trial court no longer has the jurisdiction to make rulings in a case that has been appealed. That ability was the issue in two rulings from Business Court Judge Robinson, i in a published Opinion, in SED Holdings, LLC 5, iii Star Backdrop, LLC, 2016 NCBC 62, and the other in an unpublished Order in that case which followed several weeks later.

The General Rule And Its Exception

The "general rule", as observed by Judge Robinson, is that "an appeal divests the lower court of jurisdiction."  Op. ¶33.  And then yous would call back that once an entreatment is filed (and docketed) that the trial court is powerless.  Only, that's non so:

the lower court nonetheless retains jurisdiction to accept action which aids the entreatment, and to hear motions and grant orders, so long as they exercise non business organization the subject field matter of the accommodate and are not afflicted by the judgment appealed from.

Id.

In the situation before Guess Robinson  last month in the SED example there were two separate appeals pending.  Neither were appeals from rulings of the Business Court, but were from rulings of the Superior Court for Durham County, made during the extended flow of fourth dimension before the case was designated to the Business organisation Court.

Appeal Number One

Appeal #1 is a long running appeal.  At the time of Judge Robinson's ruling the Court of Appeals had affirmed the trial court's grant of a preliminary injunction and its denial of a Motion to Dismiss.  Those appellate rulings were the discipline of a PDR (a Petition for Discretionary Review) pending before the NC Supreme Courtroom.

Appeal Number Two

Appeal #2 was filed this twelvemonth, and has yet to be ruled on by the COA.  Information technology is an appeal of several orders issued by the trial court holding the Defendants in civil antipathy for non complying with the injunction that was the bailiwick of Appeal #1. The Defendants are arguing that the trial court lacked jurisdiction to observe them in contempt while the first appeal was pending.

Did The Business organisation Courtroom Still Have Jurisdiction Given The Two Appeals?

Whether the Business organization Court still had the authority to deal with the Plaintiff'southward Motion that he enter a mandatory injunction against a recently added Defendant (Charles A. Chocolate-brown & Assembly, PLLC) was the question faced by Judge Robinson.  Did he have any jurisdiction over the case with the two pending appeals?

Appeal #2 was pretty piece of cake to knock down equally an impediment to the Business Court's jurisdiction.  Judge Robinson said that:

the bug presently earlier it are non embraced inside the issues presently earlier the Court of Appeals in the [Entreatment #2] and, thus, do not divest this Court of subject matter jurisdiction to consider and decide the Move relating to newly added defendant Charles A. Brown.

Op. ¶32.

The Effect of A Petition for Discretionary Review On A Trial Courtroom's Jurisdiction

Merely the rulings that were the subject of Entreatment #one were fundamental to a Northward Carolina court having jurisdiction over the entire case, since they concerned the validity or invalidity of a forum selection clause dictating that the case exist litigated in Harris Canton, Texas.  The ruling from the Court of Appeals in Appeal #ane had affirmed the trial court'due south ruling that the forum pick clause was invalid.

The NC Supreme Court hadn't ruled on the PDR before Judge Robinson'due south first ruling.  I've observed in the by that your chances of getting the land supreme court to grant a PDR are on the aforementioned level as finding a 4 leaf clover.

Judge Robinson said:

with regard to Defendants' filing of the PDR, the Court concludes that, absent a motion to stay filed with and granted past the appropriate courtroom, the filing of a petition for discretionary review with our State'southward highest courtroom, by itself, does non divest the trial courtroom of jurisdiction to consider matters after the Court of Appeals has determined a matter on appeal and has issued its mandate.

Op. ¶26.  Past the way, what is the "appropriate court" in which to file a Motion to Stay?  Rule 8 of the N Carolina Rules of Appellate Procedure, titled "Stay Pending Entreatment" says that:

Later a stay order or entry has been denied or vacated by a trial court, an appellant may apply to the appropriate appellate court for a temporary stay and a writ of supersedeas in accordance with Rule 23.

Judge Robinson probably assumed that the NC Supreme Court would exercise the expected thing and deny the PDR.  Or he might have felt bound to follow the mandate from the Court of Appeals affirming the trial court's ruling that the forum selection clause calling for litigation to have place in Texas was invalid..  An "inferior court must follow the mandate of an appellate courtroom in a case without variation or difference." In re RAH, 641 S.E.2d 404, 407 (2007).

But a few weeks after Estimate Robinson delivered the published Opinion in 2016 NCBC 62, the NC Supreme Court did the about unthinkable and granted the PDR.  That made all the difference to Judge Robinson.  He held that the Business organization Court had been "divested of jurisdiction to proceed with the Injunction Hearing" because of the granting of the PDR.  Order ¶10.  That sua sponte reversal from Guess Robinson came in an unpublished Social club.

And so what Should Y'all Do If Y'all Don't Want The Trial Court To Rule Considering Of Your Pending PDR?

So what do these rulings mean about the vitality of an NC Superior Court'due south jurisdiction in a case that is the discipline of a pending PDR?  That if yous want the Superior Court to refrain from ruling in your case in which a PDR is pending, that you should move for a stay "in the appropriate courtroom" or debate that the PDR will be granted and that the Superior Court therefore no longer has jurisdiction and should not move forward in the case until the NC Supreme Courtroom has made its ruling.  It's probably safer to asking a stay given the four leaf clover nature of the granting of PDRs.

Y'all might be wondering whether this example has been "over-appealed." Possibly it has.  In addition to the 2 appeals already pending, the Defendant has also appealed from Guess Robinson's ruling in 2016 NCBC 62.  That's the third appeal.  Even before that, it had filed a Petition for Rehearing in the COA post-obit the Court of Appeals' decision.  (Good grief Charlie Brown).

Simply given that the successful PDR is probable to generate an opinion from the NC Supreme Court on the validity of a forum choice clause, all those appeals might be worthwhile.  Maybe the Appellants volition ultimately be successful.

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Source: https://www.ncbusinesslitigationreport.com/2016/10/articles/watching-the-court/does-a-petition-for-discretionary-review-divest-a-trial-court-of-jurisdiction

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