North Carolina General Statute § 7A-30(2) allows for an appeal as of right to the Supreme Court of North Carolina from “any decision of the Court of Appeals rendered in a case…in which there is a dissent.”  Seems pretty straightforward, yes?  If the Court of Appeals issues a decision and one of the judges writes a dissenting opinion, then the losing party can automatically get the case to the Supreme Court, right?  Well, not necessarily.

In two recent cases, the losing parties in the Court of Appeals noticed an appeal as of right to the Supreme Court under § 7A-30(2) based on a dissent.  Nevertheless, the Supreme Court dismissed both appeals.  Since the orders granting the motions and dismissing the appeals stated only that the motions to dismiss were “Allowed” without providing the Court’s rationale, the reasons for the Court’s decisions requires some speculation.  But dismissal decisions like these are typically based on the Justices’ assessment that the “dissents” in the Court of Appeals were not actually dissents.   Meaning, although perhaps denominated as a dissent by the authoring judge, the dissenting opinions were not a disagreement with the ultimate outcome of the case in the Court of Appeals.  And that fact is extremely significant.

In Lippard v. Holleman,  the Court of Appeals majority affirmed a trial court’s grant of summary judgment in a defamation case on the ground that the First Amendment ecclesiastical entanglement doctrine prevented the Court from examining what was a strictly an internal dispute between members of a religious congregation.  Chief Judge McGee issued a separate opinion, “concurring in part, dissenting in part, and concurring in the judgment.”  The Chief Judge agreed with the majority that some of the statements at issue could not be considered by the Court under the ecclesiastical entanglement doctrine.  However, she identified four claims that she believed were not barred by the doctrine.  Nevertheless, in examining the merits of those claims, Chief Judge McGee determined that summary judgment should still be affirmed because the Plaintiffs failed to present sufficient evidence to support claims of libel per se or special damages as required for claims of libel or slander per quod.

Plaintiffs noticed an appeal to the Supreme Court based on Chief Judge McGee’s “dissent.”  (Plaintiffs also noticed an appeal based on a substantial constitutional question, and petitioned for discretionary review of additional issues).  On motion of Defendants-Appellees, the Supreme Court dismissed the appeal based on the dissent and based on the constitutional question.  The PDR was also denied.  See Orders.  Presumably, the notice of appeal based on the dissent was dismissed because the dissent was not truly a dissent—at least not the type of dissent that would give rise to an appeal to the Supreme Court as of right under N.C.G.S. § 7A-30(2).  Chief Judge McGee dissented from the majority’s determination that the Court could not consider on the merits any of Plaintiffs’ claims based on the ecclesiastical entanglement doctrine.  But she concurred in the judgment, opining that the trial court’s grant of summary judgment to the defendants should be affirmed because the claims lacked merited.  Thus, while only the dissenting judge analyzed these four claims on the merits, all three judges reached the same ultimate result—dismissal of Plaintiffs’ claims.  In such instances, it appears that there is no appeal as of right based on that “dissent.”

The Supreme Court similarly dismissed a notice of appeal based on dissent in Sea Watch at Kure Beach v. Fiorentino.  In that case, the Court of Appeals majority affirmed the trial court’s grant of summary judgment to Plaintiff regarding use of an easement, and further affirmed the trial court’s dismissal of the Defendant’s counterclaim and third-party claim for slander of title.  Judge Tyson issued a separate opinion “concurring in part and dissenting in part.”  Notably, his separate opinion begins with “I fully concur in the majority’s opinion to affirm the trial court’s order.”  But Judge Tyson went on to opine that the trial court’s order was incomplete, because it “failed to fully allocate the parties’ rights and responsibilities concerning the improvements in the Access Easement” at issue in the case.  Thus, Judge Tyson would have remanded the case to the trial court to provide “detailed allocation of the rights and responsibilities” regarding use of the easement by all interested parties.

Defendants noticed an appeal to the Supreme Court based on Judge Tyson’s dissent.  They also petitioned for discretionary review on additional issues.  The Plaintiffs moved to dismiss the appeal, arguing that Judge Tyson’s dissent “is in substance a concurring opinion. Therefore, there is no appeal of right under N.C. Gen. Stat. § 7A-30(2).”  The Supreme Court appeared to agree, granting the motion to dismiss the appeal on September 23.  It also denied the PDR based on additional issues.  See Orders.

So what to take away from this?  If you are on the wrong side of a Court of Appeals majority opinion and get a separate opinion framed as a “dissent,” you might want to temper any immediate excitement about going up to the Supreme Court until you fully analyze the dissenting opinion.  As the results in Holleman and Kure Beach demonstrate, if the dissenting judge concurs in the majority’s  ultimate result and the dissent professes disagreement with something other than that result, such as the method in which the majority arrived at its decision, you may not have an appeal as of right to the Supreme Court under § 7A-30(2).  However, that does not necessarily render the “dissenting” opinion meaningless in terms of getting review from the State’s highest tribunal.  After all, the judge writing separately has obviously identified some issue of concern and disagreement with the majority’s opinion, and that could potentially bolster a petition for discretionary review.

Have you dealt with this issue before?  Or a similar one?  Feel free to leave any thoughts on this issue or these cases in the comments below.

Also, shout out to Beth Scherer and her eagle eye, always on top of these somewhat out of the ordinary happenings in our appellate courts!

–Patrick Kane