Under the North Carolina Rules of Appellate Procedure, an appellant’s brief must contain “a concise statement of the applicable standard(s) of review for each issue.” N.C. R. App. P. 28(b)(6). The appellee is also permitted to state the standard(s) of review if it “disagrees with the appellant’s statements and desires to make a restatement.” Id. Rule 28(c). In many cases, the standard of review is clear and uncontroversial. But in other cases, the standard may make or break an appellate argument.

In Beroth Oil Co. v. North Carolina Department of Transportation, the Supreme Court of North Carolina recently reaffirmed this principle. The case involved allegations of inverse condemnation regarding an ongoing highway project in Forsyth County. The plaintiffs moved for class certification for all similarly situated property owners, but the trial court found that a class would be improper and denied the motion. The Court of Appeals affirmed. Upon discretionary review, the Supreme Court reversed the substantive analysis on takings but affirmed the denial of class certification.

Class certification is governed by Rule 23 of the North Carolina Rules of Civil Procedure. Because the requirements for a class can be decided as a matter of law, appellate courts review those issues de novo. However, the trial court still has discretion about whether a class is appropriate for a specific case. That decision is reviewed under the deferential abuse-of-discretion standard. Using that review, the Supreme Court found that the trial court had not abused its discretion in denying class certification. The Court explained that both lower courts had improperly considered the merits of the plaintiffs’ claims; courts are to examine the merits of a claim “only to the extent necessary to determine whether the requirements of Rule 23 have been met.” However, the plaintiffs had not shown that class certification was appropriate because each property owner has separate property with separate value and separate considerations. Simply put, “[t]he trial court did not abuse its discretion in denying plaintiffs’ motion for class certification because individual issues predominate over common issues.”

Notably, Justice Newby authored an opinion concurring in part and dissenting in part. Justice Newby focused on whether the plaintiffs’ allegations were sufficient to constitute a class. Because all members of the Court agreed that the trial court misapprehended the applicable substantive law, Justice Newby argued that the Court “should no longer review the trial court’s order with the same deference the abuse of discretion standard demands.”

Beroth Oil should remind appellate practitioners that the standard of review can make a difference. Make sure that you are arguing under the correct, and most helpful, standard applicable to your case.