On June 9, 2017, the Supreme Court of North Carolina issued a unanimous opinion holding that when an employer admits the compensability of an injury under the Worker’s Compensation Act, the injured worker is thereafter entitled to a presumption that future medical treatments are causally related to the original compensable injury. Before the ink could dry on Wilkes v. City of Greenville, a “broad coalition of private and public organizations” convinced the General Assembly to essentially nullify the impact of the Supreme Court’s decision. See News and Observer article. While the bill awaits the Governor Cooper’s signature, a special legislative session is currently scheduled for August 3rd, during which the General Assembly is expected to override any vetos, as well as handle the redistricting issues created by a recent United States Supreme Court opinion.


The North Carolina Supreme Court opinions issued on June 9 contain one additional appellate nugget. Buried within the 45-page opinion in State v. Romano is a spirited disagreement among the justices regarding whether arguments were properly preserved for review under Appellate Rule 10.  That disagreement produced a lengthy dissent from Chief Justice Martin discussing why the State’s additional arguments were “apparent from the context.”  In a separate dissent, Justice Newby added, “The majority’s puzzling attempt to avoid this issue concludes, in a few lines of dismissive prose, that the State waived any state action argument.”

“Dismissive prose” could sum up many appellate opinions refusing to address an issue based on an error preservation problem. While Appellate Rule 10 has caused the death of many appeals, it is unusual for the appellate courts to devote more than a cursory treatment to whether an issue was properly preserved below. Determining whether issues, theories, or arguments were preserved below, including whether arguments were “apparent from the context,” often involves a subjective analysis that does not lend itself to clear rules or guidelines.

For the briefest of moments, however, Romano’s dissenting justices appeared to have experienced the frustration that occurs when an appellate court refuses to allow a great legal argument to get to the finish line based on an [alleged?!?] “error preservation problem.” [Sigh]

Do you have an error preservation story that continues to prick your heart, perhaps years after the opinion was issued? Commiserate in the comments below.

–Beth Scherer