A Typical Petition for Writ of Supersedeas and Motion for Temporary Stay
Note on the Petition for Writ of Supersedeas:
"Application may be made to the appropriate appellate court for a writ of supersedeas to stay the execution or enforcement of any judgment, order, or other determination of a trial tribunal which is not automatically stayed by the taking of appeal when an appeal has been taken, or a petition for mandamus, prohibition, or certiorari has been filed to obtain review of the judgment, order, or other determination; and (1) a stay order or entry has been sought by the applicant by deposit of security or by motion in the trial tribunal and such order or entry has been denied or vacated by the trial tribunal, or (2) extraordinary circumstances make it impracticable to obtain a stay by deposit of security or by application to the trial tribunal for a stay order." N.C. R. App. P. 23(a)(1).Note on the Petition for Temporary Stay:
"Upon the filing of a petition for supersedeas, the applicant may apply, either within the petition or by a separate filing, for an order temporarily staying enforcement or execution of the judgment, order, or other determination pending decision by the court upon the petition for supersedeas. If application is made by a separate filing, it shall be filed and served in the manner provided for the petition for supersedeas in Rule 23(c)." N.C. R. App. P. 23(e).No. ___________ TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
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[Plaintiff's Name as in Final Judgment or Order on Appeal], Plaintiff, | From Avery County [Case Number as in Final Judgment or Order on Appeal] |
v. | |
[Defendant's Name as it appears in Final Judgment], Defendant. |
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PETITION FOR WRIT OF SUPERSEDEAS AND MOTION FOR TEMPORARY STAY
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Notes on Petitions for Writ of Supersedeas and Motions for Temporary Stay:
Consult Rule 23 and Appendix D for the circumstances in which this petition is appropriate. This sample petition focuses on the styles used in filing such a petition with the Court of Appeals under Rule 23(a), to stay the execution or the enforcement of a judgment, order, or other determination of a trial tribunal. Note that slightly different procedures apply when you seek a stay of a Court of Appeals decision. See N.C. R. App. P. 23(b). When you have noticed an appeal from the order to be stayed, it is the best practice to include a copy of the Notice of Appeal as an exhibit to your petition. If the motion is extraordinarily time-sensitive, you should consider alerting the Court of Appeals to any such timing issues or "deadlines" early in the document. The petition number in the upper left corner is typically left blank, to be filled in by the Court of Appeals. If the underlying appeal has already been docketed, you can include the Court of Appeals case number here. Service of the Petition for Writ of Supersedeas triggers a ten-day response deadline for any party to oppose it. See N.C. R. App. P. 23(d). In practice, it is common to couple a Motion for Temporary Stay with the Petition for Writ of Supersedeas, so the Court of Appeals has the option to stay the execution or the enforcement of the judgment or order while the briefing and consideration on the Petition for Writ of Supersedeas takes its course. See N.C. R. App. P. 23(e).INDEX
TABLE OF CASES AND AUTHORITIES .................... ii
FACTS ............................................................................ 2
REASONS WHY WRIT OF SUPERSEDEAS SHOULD ISSUE ................................................................... 3
I. DEFENDANTS ARE ENTITLED TO THE STAY PURSUANT TO SECTION 1-289 OF THE NORTH CAROLINA GENERAL STATUTES ..... 5
II. DEFENDANTS ARE LIKELY TO SUCCEED ON THE MERITS OF THE APPEAL BECAUSE A DISTRICT COURT DOES NOT HAVE THE AUTHORITY TO ORDER A DISTRIBUTIVE AWARD OF A CORPORATION........................... 7
MOTION FOR TEMPORARY STAY .......................... 11
CONCLUSION ............................................................ 13
VERIFICATION .......................................................... 14
CERTIFICATE OF SERVICE ..................................... 15
Notes on 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 petition only requires an index if it is ten pages or more in length. See id.TABLE OF CASES AND AUTHORITIES
Cases
Barrett v. Barrett, 122 N.C. App. 185, 468 S.E.2d 264 (1996) .................................................................... 6
Estate of Nelson ex rel. Brewer v. Nelson, 179 N.C. App. 166, 633 S.E.2d 124 (2006) ................................... 9
Faught v. Faught, 50 N.C. App. 635, 274 S.E.2d 883 (1981) .................................................................... 7
Statutes
N.C. Gen. Stat. § 1-289 (2017)........................... 5, 6, 7, 8
N.C. Gen. Stat. § 50-20 (2017) ............................. 4, 9, 10
Rules
N.C. R. App. P. 8.................................................... 1, 7, 8
N.C. R. App. P. 23.................................................... 1, 11
Other Authorities
Superseding and Staying Judgments: A National Compendium, American Bar Association, Chapter 36, "Superseding and Staying Judgments in North Carolina" ......................... 6, 7
Notes on the Table of Authorities:
If the petition is fewer than ten pages, this table may be omitted. See N.C. R. App. P. Appendix B. If included, the format of the Table of Cases and Authorities is the same as any brief (consult A Typical Appellant's Brief section, supra, for a fuller discussion on the formatting).No. ___________ TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
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[Plaintiff's Name as in Final Judgment or Order on Appeal], Plaintiff, | From Avery County [Case Number as in Final Judgment or Order on Appeal] |
v. | |
[Defendant's Name as it appears in Final Judgment], Defendant. |
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PETITION FOR WRIT OF SUPERSEDEAS AND MOTION FOR TEMPORARY STAY
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TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA:
Defendant, pursuant to Rule 23 of the North Carolina Rules of Appellate Procedure, respectfully petitions this Court to issue a temporary stay and a writ of supersedeas. Following the 20 May 2017 entry of an order dividing the Johnsons' marital estate by equitable distribution, Defendants moved to stay the equitable distribution pending appeal of the order. The Honorable Meredith Adams of Avery County Superior Court denied Defendant's motion for stay in an order dated 25 June 2022. Defendant now petitions this Court to stay enforcement of the equitable distribution order, and in support of this petition show the following:
FACTS
This lawsuit stems from an equitable distribution of a divorcing couple's assets, which awarded the wife over 96% of the marital estate and ordered the husband's company to make installment payments nearing $200,000 to the wife. Defendant is . . . [discussion of facts continues]
Notes on Facts:
Here, set out the factual background necessary to understand why you are petitioning for writ of supersedeas (e.g., the trial court has not stayed execution despite the posting of security). See N.C. R. App. P. Appendix D. Petitioner should explain here its compliance with the requirement of Rule 23(c), which dictates that the stay be sought in the trial court in the first instance, or for the petitioner to demonstrate that it was impracticable to do so. See also id. Petitioner should also include here a statement that review of the judgment or order is being sought by appeal or other extraordinary writ. See N.C. R. App. P. 23(a), Appendix D.REASONS WHY WRIT SHOULD ISSUE
Defendant is entitled to a stay because of the plain language of Section 1-289 of the North Carolina General Statutes and the likelihood that Defendant will prevail in their appeal of the order. The trial court's order will have the effect of . . . [argument continues]
Notes on the Reasons Why Writ Should Issue:
Here set out the factual and legal argument to justify the issuance of the writ. See N.C. R. App. P. Appendix D. Consult Rule 23 for the bases of the writ. Because this writ is so flexible, the Argument section of the petition is likewise flexible. Brevity, however, is always going to be appreciated.MOTION FOR TEMPORARY STAY
Pursuant to Rule 23(e) of the North Carolina Rules of Appellate Procedure, Defendant respectfully applies to this Court for an order temporarily staying enforcement of the equitable distribution order until determination by this Court of whether it shall issue its writ of supersedeas. In support of this application, Defendant represents that they sought from, and were denied by, the trial court an order to stay the equitable distribution order pending this Court's review. A temporary stay is necessary to prevent irreparable harm while this Court determines whether it shall issue its writ of supersedeas, because the corporation cannot sustain the payments ordered without liquidation. Defendant further incorporates and relies on the arguments presented in the foregoing petition for writ of supersedeas in support of this Motion for Temporary Stay.
Notes on the Motion for Temporary Stay:
The Motion for Temporary Stay can be set out in the same or in a different document as the Petition for Writ of Supersedeas. See N.C. R. App. P. 23(e). If reflected in the same document, the Motion for Temporary Stay section should set out the factual and legal argument to justify the issuance of the temporary stay. See N.C. R. App. P. Appendix D. Nevertheless, this section can be brief provided it meets the requirements of Rule 23(e), as the arguments for the temporary stay may overlap considerably with the arguments for the Petition for Writ of Supersedeas.CONCLUSION
Defendant respectfully requests for this Court to issue a temporary stay and writ of supersedeas to the Avery County Superior Court, staying the enforcement of the equitable distribution order during the pendency of this appeal.
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-Petitioner
245 S. Main Street
Newland, NC 28786
(919) 456-1245
State Bar No. 67890
lawyer@lawfirm.com
ATTACHMENTS
Attached to this Petition for Writ of Supersedeas and Motion for Temporary Stay are copies of the following documents from the trial court record:
Exhibit A. Certified copy of the Order dividing the Johnsons' marital estate by equitable distribution, filed 20 May 2022.
Exhibit B. Certified copy of the Order denying Defendant's motion for stay, filed 25 June 2022.
Exhibit C. Copy of excerpts from the transcript of the deposition of Sandra Johnson, taken 4 January 2022.
Notes on the Attachments:
The language of Rule 23 itself does not specifically require any item to be attached to the Petition for Writ of Supersedeas or to the Motion for Temporary Stay. However, Appendix D makes clear that the appellate courts expect that a certified copy of the judgment/order/decree sought to be stayed be attached to the petition or motion. In addition, Rule 23(c) generally permits the petition or motion to be "accompanied by affidavits and by any certified portions of the record pertinent to its consideration." N.C. R. App. P. 23(c). The lower court clerk can provide to the petitioner certified copies of the documents required by the Rules. In practice, practitioners may face difficulty having the clerk of the trial court formally certify certain "parts of the record." For example, the clerk is not likely to certify as part of the record any item served but not filed (e.g., a Notice of Deposition, Memorandum of Law, or, in some instances, a transcript of a deposition). As a practice pointer, practitioners facing such difficulty should consider submitting such materials as attachments to the petition or motion, using the attorney Verification to testify to their authenticity. See the sample Verification below for an example.VERIFICATION
The undersigned [petitioner or counsel for petitioner], after being duly sworn, says:
The contents of the foregoing Petition for Writ of Supersedeas and Motion for Temporary Stay are true to my knowledge, except those matters stated upon information and belief, and, as to those matters, I believe them to be true.
[If verified by counsel for petitioner, recast this to state that the material allegations of the petition are true to the attorney's personal knowledge.]
[If counsel will be testifying to the authenticity of any documents attached to the petition or motion, consider including a statement along these lines: Pursuant to Rule 23 of the North Carolina Rules of Appellate Procedure, I also hereby certify that the documents attached to this Petition for Writ of Supersedeas and Motion for Temporary Stay are true and correct copies of the pleadings and other documents from the file in Avery County Superior Court, including documents that were served or submitted for consideration as contemplated by Appellate Rule 11.]
___________________________
[Name of Petitioner or Counsel]
______________________ County, North Carolina
Sworn to (or affirmed) and subscribed
before me by [name of principal]
Date: ________________________
[Notary's Printed or Typed Name], Notary Public
My Commission expires:
Notes on Verification:
Rule 23(c) requires that "[t]he petition shall be verified by counsel or the petitioner." N.C. R. App. P. 23(c). The verification page immediately follows on the page after the signature block of counsel. See N.C. R. App. P. Appendix D.CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing Petition for Writ of Supersedeas and Motion for Temporary Stay 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]
Notes on Order of Materials in Petition for Writ of Supersedeas and Motion for Temporary Stay:
Rule 23 does not provide an order in which the sections of the Petition for Writ of Supersedeas and Motion for Temporary Stay must be presented. The sample petition in Appendix D is organized in the following order: the case caption, the Facts, the Reasons Why Writ Should Issue, the Conclusion (without a separate "Conclusion" header), the Attachments, the signature block, the Verification, and finally the Certificate of Service. Appendix D does not state where the Motion for Temporary Stay should appear, except to note that the Motion may be included as a part of the main Petition or filed separately.