A dissenting opinion in the Court of Appeals has long been a litigant’s Golden Ticket, at least until a recent statutory change.  The mere existence of the dissent bestowed an automatic right of appeal to the Supreme Court of North Carolina.  But what if the dissenting opinion didn’t track what you argued?  What if the dissenting judge had an entirely different view of the case than the parties?

The Supreme Court addressed this issue in Bottoms Towing & Recovery v. Circle of Seven. Bottoms Towing involved a petition to authorize the sale of a truck that had a lien on it.  The trial court affirmed the lien and authorized the sale.  On appeal, the truck owner argued that the amount of any lien “should be substantially reduced by [the lien-holder’s] personal use of the Truck.”  Two Court of Appeals judges voted to affirm the trial court’s decision.  A dissenting judge, however, voted to address the appellant’s argument in the context of conversion and would have remanded the case to the trial court to address that issue in recalculating the proper lien amount.  Specifically, the dissenting judge would have held that “[t]he trial court erred in its calculation of the offset to reduce the lien amount due to [the petitioner’s] unlawful conversion and personal use” of the truck.

In an appeal based on the dissent, the Supreme Court declined to review the issue raised by the dissenting opinion.  Although acknowledging that it had jurisdiction to address the issue, the Supreme Court explained that it will decline to “review issues raised by a Court of Appeals dissent that were not first raised and argued by the parties.”  In the Supreme Court majority’s view, the appellant did not specifically bring a claim for conversion in the trial tribunal and did not directly argue that the truck’s value was diminished as a result of conversion.  The Supreme Court held that it was improper for the dissenting judge to address the conversion theory—despite the appellate arguments about reducing the lien amount.

Is that slicing the cake a little too thinly?  Justice Earls thought so.  As the sole dissenter, she opined that because the case was properly before the Supreme Court based on a dissenting opinion, then the Court had an obligation to address the basis for the dissenting opinion.  In her view, the majority was taking “a hyper-technical and unjustifiably narrow approach” to whether the appellant “made the necessary legal arguments.”

Both sides raised issues of injustice.  The majority was concerned that the appellee did not have a chance to address the specific conversion issues raised by the dissenting judge in the Court of Appeals.   On the other hand, Justice Earls’ concern was that the appellant did not obtain the appellate review authorized by statute when there is a dissent in the Court of Appeals.  Who has the better of the argument? 

The majority’s focus seems to be the fairness issues that arise with error preservation and/or appellate abandonment problems. Of course, in extraordinary circumstances or when injustice appears manifest, both appellate courts can overlook these concerns under Appellate Rule 2. The Supreme Court has historically reviewed the Court of Appeals’ exercise of its Appellate Rule 2 authority for abuse of discretion.  But how does that calculus work when only a dissenting judge is willing to address issues not properly raised?   Was the Supreme Court suggesting that the dissenting Court of Appeals judge abused his discretion? Or was the Supreme Court taking a narrower view—that the Court of Appeals majority did not abuse its discretion by declining to address the unpreserved/abandoned issue raised by the dissenting judge? 

Or is something else brewing here?  You may recall the State v. Campbell saga that produced multiple blog posts on the Supreme Court’s policing of the Court of Appeals’ Rule 2 authority.  The Rule 2 issue has largely fizzled out since then—but maybe not entirely.

One more thing.  How does this ruling in Bottoms Towing intersect with the Supreme Court’s own ability to raise and remand cases based on new issues?  For example, in 2018, the Supreme Court vacated a divided decision of the Court of Appeals and remanded to the trial court for findings of fact on a new issue.  The Supreme Court noted that the remand was “without prejudice to advance claims not briefed or previously raised but discussed at oral arguments” before the Supreme Court.  And in one installment of the Leandro school-funding saga, the Supreme Court dismissed the appeal as moot even though no party had raised that issue in its brief.

So what do you think?  How closely should a dissenting opinion adhere to the parties’ arguments?  In an appeal to the Supreme Court, how closely do your arguments need to adhere to the Court of Appeals’ reasoning?  Some of these questions might be easier to answer when the Supreme Court allows discretionary review.  But if not, what should be the effect of a dissenting judge’s particular reasoning?  Is this another Appellate Rule 2 dispute, or is it something else entirely?

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