The North Carolina Supreme Court issued two opinions on Friday containing interesting nuggets of appellate practice and procedure.
The Supreme Court Can, and Sometimes Will, Exercise Its Broad Authority to Consider Issues Not Addressed by the Court of Appeals.
Supreme Court opinions only occasionally involve disagreements regarding issues of appellate procedure. In Stark ex rel. Jacobsen v. Ford Motor Co., Justice Hudson, joined by Justice Timmons-Goodson, issued a dissenting opinion relying on the North Carolina Rules of Appellate Procedure when the Supreme Court majority decided the case based on issues not previously reached by the Court of Appeals.
Stark involved two minor children who were seriously injured in a car accident. Their guardian ad litem brought a product liability action against Ford alleging that the design of the car’s seatbelts caused the children to suffer “enhanced, or more serious, injuries.” At trial, Ford successfully argued to a jury that N.C. Gen. Stat. § 99B-3’s product alteration/modification defense protected Ford from liability because the children’s parents had allegedly modified the seatbelts by placing the shoulder belt portion of the restraint behind the children’s backs. The problem was that § 99B-3 states that the modification defense is only available when the modification or alteration “was . . . by a party other than the manufacturer or seller.” Id. § 99B-3(a) (emphasis added). The Court of Appeals held that the trial court had improperly submitted the modification defense to the jury because neither parent was a “party” to the litigation at the time of trial. On petition for discretionary review, a unanimous North Carolina Supreme Court reversed, holding that § 99B-3 protects manufacturers and sellers from liability for injuries proximately caused by modifications or alterations made by anyone other than by manufacturers and sellers (including non-parties to the litigation).
With this issue resolved, the majority and dissent diverged on an issue of appellate procedure. In holding that the trial court should have granted a directed verdict to plaintiffs because § 99B-3 did not apply to non-parties to the litigation, the Court of Appeals was not required to address several other issues raised by plaintiffs. One of those issues was whether the trial court should have granted a directed verdict to plaintiffs on the question of whether Ford had carried its burden under § 99B-3 of proving that the plaintiffs’ parents had improperly modified the seatbelts by placing the shoulder belt behind the children’s backs.
After concluding that the Court of Appeals had erred in holding that § 99B-3 was unavailable to Ford, the Supreme Court majority decided to address an issue never reached by the Court of Appeals: Whether there was some factual basis to support the jury’s determination that someone, other than Ford, modified the car’s seatbelt system (and therefore, to defeat the Stark plaintiffs’ motion for a directed verdict on this issue.). The Supreme Court majority concluded that the evidence supported the jury’s verdict on this issue.
On this issue of appellate procedure, Justices Hudson and Timmons-Goodson’s dissent begins. In the dissent’s opinion, the majority should not have reached the sufficiency of the evidence issue because the Court of Appeals had not reached that issue in its earlier opinion. According to Justice Hudson’s dissent:
It is the practice of this Court to reach only those issues passed upon by the Court of Appeals and to remand for consideration of any issues beyond those necessary for our decision. See, e.g., N.C. R. App. P. 16(a) (stating that “[r]eview by the Supreme Court after a determination by the Court of Appeals . . . is to determine whether there is error of law in the decision of the Court of Appeals”); Va. Elec. & Power Co. v. Tillett, 316 N.C. 73, 76, 340 S.E.2d 62, 64-65 (1986) (“Giving proper deference to the Court of Appeals, we decline to address the remaining issues raised by the parties but not addressed by that court in its opinion in this case. Instead, we remand the case to the Court of Appeals so that it may address those issues initially on appeal and prior to their being decided by this Court.”).
Instead, the dissent asserted that because the issue was not properly before the Supreme Court under N.C.R. App. P. 16(a), the Supreme Court should have remanded the issue to the Court of Appeals to allow it to decide the issue first.
The Supreme Court majority’s opinion offered no analysis of why addressing the sufficiency of the evidence issue (rather than remanding the issue to the Court of Appeals) was proper under the Rules of Appellate Procedure. However, the majority offered at least one hint of why it decided to address the issue now: “having resolved this case on that issue, we need not consider the remaining issues presented by the parties to this Court, and any discussion of them would be obiter dictum.” Slip. Op. at 21. Second, the majority may have believed that judicial economy would be best served by deciding the issue now, rather than having the case return to the Supreme Court on an inevitable notice of appeal or petition for discretionary review.
Interestingly, the “Issues to be Briefed” section of the Petition for Discretionary Review did not specifically identify the sufficiency of the evidence argument as an issue for which defendant was seeking discretionary review. This section of the PDR does, however, include a broad, but generic, issue that may have provided the foothold for the Supreme Court’s consideration of the sufficiency of the evidence issue: “Whether the Court of Appeals erred in remanding this case with instructions to enter a judgment of liability in favor of Plaintiffs and to conduct a trial solely on the issue of damages?”
While I could continue blogging about esoteric issues of appellate practice and procedure surrounding the scope of appellate review under Rule 16(a) and issues presented in a PDR, there is a larger point every appellate practitioner should remember (and try to anticipate) when presenting cases to the North Carolina Supreme Court:
The North Carolina Supreme Court—as the final authority on issues of North Carolina appellate procedure—has broad authority to decide cases before it in whatever ways the Justices deem most appropriate to the particular procedural posture and facts of each case. This authority is often seen in cases where strict adherence to the Rules would not promote judicial economy. Indeed, Appellate Rule 2 specifically allows the Court, on its own initiative, to suspend or vary the Rules of Appellate Procedure “to prevent manifest injustice” or “to expedite decisions in the public interest.” Therefore, while you should be vigilant in following the appellate rules, also remember that appellate courts—and particularly the North Carolina Supreme Court—have broad authority to follow a varied path when a straight “appellate” line does not produce the shortest distance between two points.
The Supreme Court Clarifies Plain Error Standard of Review in Criminal Cases.
While we usually blog about matters of civil appellate procedure, the Supreme Court issued an important opinion today on a standard of review only seen in criminal appellate practice: plain error review.
In civil cases, if trial counsel fails to assert a timely objection to preserve an alleged error, that error is deemed waived and an appellate court will not even consider the issue on appeal.
Plain error review is a limited exception to the waiver doctrine that applies only in criminal cases. The North Carolina Supreme Court first recognized the plain error doctrine in 1983. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). However, in the almost 30 years that followed, a “lack of uniformity in the administration of the plain error standard” resulted in “incomplete and inconsistent” formulations of the standard in the Court of Appeals. State v. Lawrence , No. 100PA11 (13 April 2012).
On Friday, the Supreme Court set out to clarify the plain error standard of review in State v. Lawrence by establishing a two-prong test. After reviewing the history and purpose of plain error review, the Lawrence court noted that for an unpreserved “error to constitute plain error, a defendant must first demonstrate that a fundamental error occurred at trial.” The Supreme Court went on to state:
To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error “had a probable impact on the jury’s finding that the defendant was guilty. . . .”
Slip op. at 19 (internal citations and quotations omitted).
Second, even when an error is deemed fundamental, it must still pass a second prong of the plain error test.
[B]ecause plain error is to be applied cautiously and only in the exceptional case . . . the error will often be one that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”
Id. (internal citations and quotations omitted).
Applying this clarified standard to the facts in Lawrence, the Supreme Court determined that the Court of Appeals had erred in articulating the plain error standard of review as “whether [an] erroneous jury instruction was likely to mislead the jury.” Instead, the correct plain error standard is whether the “erroneous jury instruction was a fundamental error—that the error had a probable impact on the jury verdict”—a standard which the Lawrence defendant failed to meet. Id. at 20-21. In addition, Defendant also could not demonstrate that the error “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 21.