The concept of waiver is fairly straightforward and can generally be summed up by the adage “use it or lose it.” But when it comes to appellate practice, the concept can have disastrous consequences. Yesterday’s opinions from the Court of Appeals highlight some of these concerns.
WAIVER IN OBJECTIONS AT TRIAL
Gregory v. Old Republic Home Protection Co. was a wrongful death action resulting from a carbon monoxide poisoning death. At trial, the defendant introduced evidence of the decedent’s criminal record. The plaintiff had moved in limine to exclude such evidence, citing Rules 609 and 403 of the rules of evidence. She later argued that the evidence should be excluded under Rule 608. On appeal, however, the plaintiff challenged the evidence under Rule 404. The court found that the plaintiff’s argument was improper. She did not challenge the actual basis for the trial court’s ruling, and the trial court did not rely on Rule 404.
REMEMBER: Even if an objection is “preserved,” make sure your appellate argument correlates with the objection.
WAIVER IN ADMINISTRATIVE APPEALS
In Adcox v. Clarkson Brothers Construction Co., a deputy commissioner had awarded compensation and attorney’s fees to the plaintiff-employee. The full Industrial Commission affirmed the award with some modifications but did not specifically address the issue of attorney’s fees. When the plaintiff sought to collect the fees, the defendants argued (and the commission later agreed) that by not addressing the issue, the full commission’s decision necessarily denied approval of the fees. The Court of Appeals disagreed and found that the defendants had waived their right to challenge the deputy commissioner’s fee award. The defendants’ generic appeal to the full commission was insufficient to raise the specific issue of attorney’s fees. It was their burden to challenge the fee award, and they could have requested reconsideration or appealed the decision. By failing to raise the issue with the full commission, the defendants waived their right to appeal, and the fee award became the law of the case.
REMEMBER: If you want to appeal an issue, make sure it is actually addressed by the administrative body or trial court.
WAIVER IN SERVICE OF THE NOTICE OF APPEAL
The appellate rules require that any notice of appeal be served on all other parties. N.C. R. App. P. 26(b). Savvy appellate practitioners know that such service “is a matter that may be waived by the conduct of the parties.” Hale v. Afro-Am. Arts Int’l, Inc., 110 N.C. App. 621, 625, 430 S.E.2d 457, 459 (Wynn, J., dissenting), dissent adopted by 335 N.C. 231, 436 S.E.2d 568 (1993) (per curiam). So what does it take to waive defective service? The contours may be a little fuzzy, but the Court of Appeals found that filing a joint motion for extension of time is enough to constitute waiver. See In re C.V.M.
REMEMBER: If you haven’t been properly served with a notice of appeal, raise the issue before you do anything else.
WAIVER IN SETTLING THE RECORD ON APPEAL
In what sounds like a classic law school res ipsa loquitur hypothetical, the plaintiff in Nicholson v. Thom brought suit after the defendant-doctor left a sponge in a patient’s abdomen following surgery. After a $5 million jury verdict, the doctor sought to appeal various rulings from the trial court. One of the arguments was that the trial court improperly provided the plaintiff with medical records that had been submitted directly to the court. The documents were not included in the record on appeal but were submitted to the Court of Appeals under seal in a Rule 11(c) supplement. However, there was no indication that the documents were in fact provided to the plaintiff. Without any evidence that the trial court had settled the matter, the Court of Appeals found that it must “presume” that the trial court acted appropriately.
REMEMBER: If there is a dispute about the record on appeal, don’t forget the option to seek judicial settlement—and follow up if you do!