(Motion for rehearing en banc)
Links to Opinion from July 3, later withdrawn:
- From COA
- 17-570: https://www.nccourts.gov/documents/opinions/grodner-v-grodner
- 17-813: https://www.nccourts.gov/documents/opinions/grodner-v-grodner-0
- https://scholar.google.com/scholar_case?case=4958067743014500344&q=grodner&hl=en&as_sdt=4,34
- https://law.justia.com/cases/north-carolina/court-of-appeals/2018/17-570.html
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Documents in case: 17-570:
https://www.ncappellatecourts.org/search-results.php?sDocketSearch=17-570&exact=1
Documents in case: 17-813:
https://www.ncappellatecourts.org/search-results.php?sDocketSearch=17-813&exact=1
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No. COA17-570 DISTRICT 3A
NORTH CAROLINA COURT OF APPEALS
*************************************************
HUNTER F. GRODNER, )
(now Summerlin) )
Plaintiff, )
) From Pitt County
vs. ) No. 13-CVD-398
)
ANDRZEJ GRODNER, )
(now Andrew Grodner) )
Defendant, )
______________________________)
*************************************************
MOTION FOR EN BANC CONSIDERATION
AND
FOR THE DECISION ON THE APPEALED ISSUE
*************************************************
(Filed electronically 12 July 2018)
*****
TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA:
Defendant-Appellant Andrzej Grodner (currently Andrew Grodner), acting pro se, pursuant to North Carolina Rules of Appellate Procedure ("N.C.R.A.P.") Rule 31.1, respectfully requests a rehearing en banc because Panel's Opinion in this appeal issued on 3 July 2018 conflicts with North Carolina Constitution ("N.C.C") and North Carolina General Statutes ("N.C.G.S."), which results in denial of Defendant-Appellant constitutionally protected right of appeal. Thus, as a remedy, the Defendant-Appellant respectfully requests a decision on the appealed issue. In support of this Motion, Defendant-Appellant shows:
- The sole function of the North Carolina Court of Appeals ("N.C.C.A.") is to serve the public by providing "a proper system of appeals" (N.C.C.Art.IV.Sec.12(6)). In this case, contrary to any appeals case known to the Defendant-Appellant, N.C.C.A. failed to discharge its duty by not deciding on the primary issue presented on this appeal by the Defendant-Appellant:
DOES THE FAMILY COURT OF NORTH CAROLINA HAVE JURISDICTION OVER PARENT'S PASSPORT(S)?
- As required by N.C.R.A.P. Rule 31.1(a)(1), the Defendant-Appellant shows that the en banc consideration is necessary to maintain uniformity of the court's decisions because:
- The Opinion conflicts with N.C.G.S.1-297 which does not allow N.C.C.A. not to decide on the issues that have been properly raised and taken by the N.C.C.A. In this case, as opposed to any case known to the Defendant-Appellant, Panel's Opinion does not decide on the fundamental issue requested for review: Does the family Court of North Carolina have jurisdiction over parent's passport(s)?
- The Opinion conflicts with N.C.G.S.Ch.7A.Art.5 and N.C.R.A.P. which do not allow any member of the Panel writing the Opinion to ignore the Record and/or misstate its contents when considering its decision. In this case, as opposed to any opinion known to the Defendant-Appellant, Honorable Judge Murphy provided false statement in his concurring opinion by stating that "Defendant (...) has not included the passport or a copy thereof in the the record" because copies of both U.S. and Polish passports were included on page 50 of the Record and they were cited on page 3 of the Defendant-Appellant's Brief.
- As required by N.C.R.A.P. Rule 31.1(a)(2), the Defendant-Appellant shows that the en banc consideration is necessary because it involves questions of exceptional importance, including:
- The authority and duty for the N.C.C.A. to set law in North Carolina by interpreting N.C.G.S. and providing precedents when new issues, not included in N.C.G.S., have occurred. In this case a new issue has been raised, namely: whether family Court of North Carolina has jurisdiction over parent's passport(s), and yet the Opinion does not address it and thus leaves the issue unresolved.
- The fundamental right of appeal by every citizen of North Carolina as provided by N.C.G.S.1-277(b) which states in pertinent part: "any interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person." In this case the Defendant-Appellant properly raised the issue of jurisdiction, he properly appealed it, he diligently followed N.C.R.A.P. Rules, and yet the Opinion does not provide the answer to the primary question he was asking: whether family court of North Carolina has jurisdiction over parent's passport(s).
WHEREFORE, because the Panel's Opinion conflicts with both N.C.C. and N.C.G.S. by not resolving controversy presented on appeal, Defendant-Appellant respectfully requests en banc consideration to both secure and maintain the uniformity among North Carolina courts as well as to protect the constitutionally protected fundamental right of appeal available to every citizen of the State of North Carolina. Therefore, the Defendant-Appellant respectfully requests a remedy in the form of issuing a decision on the appealed issue.
Respectfully submitted, this 12th day of July, 2018.
/s/ Andrew Grodner _
Andrzej Grodner, pro se
(currently Andrew Grodner)
P.O. Box 3571
Greenville, NC 27836
252-558-3040
email: agrodnercase@gmail.com
Defendant, pro se-Appellant
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served upon all counsel of record by emailing and mailing a copy thereof by first-class mail, postage paid, and addressed as follows:
Mr. Jeffrey Miller, Esq.
Miller and Audino, LLP
2510 E. 10th Street
Greenville, NC 27858
252-493-6138
email: jeff@millerandaudino.com
Counsel for Plaintiff-Appellee
This the 12 day of July, 2018.
/s/ Andrew Grodner _
Andrzej Grodner, pro se
(currently Andrew Grodner)
P.O. Box 3571
Greenville, NC 27836
252-558-3040
email: agrodnercase@gmail.com
Defendant, pro se-Appellant
