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Is “Failure To Preserve” An Issue That Must Be Preserved?

I will note at the outset that our firm represented the property owners in this case. But aside from the substantive issues, the Supreme Court’s decision from last week in North Carolina Department of Transportation v. Mission Battleground Park contains an important caveat for appellate practitioners.

The case involved the DOT’s condemnation of property in Greensboro for a state highway project. During the trial to determine the amount of just compensation for the taking, the trial court excluded one of the property owners’ expert witnesses. The property owners appealed from the jury verdict in part based on that exclusion. The Court of Appeals affirmed, and the Supreme Court then granted the property owners’ petition for discretionary review.

In its new brief to the Supreme Court, the DOT argued that the property owners had not preserved—that is, they had waived—the issue of the expert’s exclusion for appellate review. The Supreme Court, however, held that the DOT’s argument was not properly before the Court “because DOT’s response to defendants’ petition for discretionary review did not state any additional issues that DOT sought to present.”

The Court relied on Appellate Rule 15(d), which states:

If, in the event that the Supreme Court certifies the case for review, the respondent would seek to present issues in addition to those presented by the petitioner, those additional issues shall be stated in the response.

The Court held that such “additional issues” include the issue of preservation (or waiver). If the appellee does not raise that issue in the PDR response, the appellee risks waiving review of that argument.

The holding can be stated pithily: a party can waive its waiver argument and fail to preserve its own argument that an issue was not preserved by another party.

–Kip Nelson

P.S.  Happy tenth birthday, Dogwood!

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One Response to "Is “Failure To Preserve” An Issue That Must Be Preserved?"

  • Tara Muller
    March 6, 2018 - 11:15 am Reply

    Thanks for the update, Kip. Admittedly, I struggled for a bit to understand this case’s relationship to toast and jelly, but now I get the “preserves” reference. You Smith Moore Leatherwood folks definitely are creative…always finding a way to “spread” humor in the face of otherwise dull appellate law. Thanks for always “jamming” us full of helpful information.

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