In our blog post discussing the Court of Appeals opinions issued February 7, 2023, we addressed two cases explaining how trial courts must have subject matter jurisdiction in order for a plaintiff to access the court.  In its opinions issued February 21, 2023, the Court of Appeals expanded on this theme, focusing this time on how appellants must preserve their right to appeal issues if they want access to the appellate courts. 

            In Guerra v. Harbor Freight Tools, No. COA22-351, 2023 WL 2125270, a pro se plaintiff was injured when shopping for tools.  After defendant prevailed in small claims court, plaintiff appealed to district court, requesting a jury trial. Defendant denied all allegations in its answer.  On the day set for trial, plaintiff served a “Motion for Discovery” on defendant.  When the district court called the case for a bench trial, plaintiff did not ask for a continuance or object to the bench trial.  During the trial, although plaintiff referred to his Motion for Discovery, he did not request a ruling on it and the district court did not make one.  Plaintiff also attempted to introduce an email, allegedly from defendant’s claim adjuster.  The email purportedly confirmed that, although a claim existed, defendant still denied the claim.  Defendant objected to admission of the email on the grounds that it constituted both hearsay and a statement made to compromise a claim.  The district court sustained the objection and ultimately awarded judgment for defendant.  Plaintiff appealed.

            The Court of Appeals dismissed the appeal, finding that plaintiff “failed to properly preserve for appellate review any of the issues raised in his brief.”  Observing that “[r]ules of procedure are necessary in order to enable the courts properly to discharge their duty of resolving disputes,” the Court found that “[i]t necessarily follows that failure of the parties to comply with the rules, and failure of the appellate courts to demand compliance therewith, may impede the administration of justice.” Accordingly, “a party’s failure to properly preserve an issue for appellate review ordinarily justifies the appellate court’s refusal to consider the issue on appeal.”

            Plaintiff appealed on three grounds: (1) the district court handled the matter as a bench trial despite the jury demand, (2) the admission of the above-referenced email, and (3) the district court not addressing the Motion for Discovery.  The Court found that plaintiff had not preserved any of those issues for appeal.

            Regarding the bench trial, while the Court agreed that plaintiff had requested a jury trial, it also found that plaintiff, by appearing at trial and participating in the bench trial without objection, had waived his right to a trial by jury.  Thus, even though the district court erred, and even though the error was “one of constitutional magnitude,” plaintiff’s inaction resulted in a waiver of the issue and a failure to preserve it for appeal.

            With respect to the admission of the email, the Court found that plaintiff needed to have ensured the email’s significance appeared in the record via a specific offer of proof, unless the significance was obvious from the record.  Finding the email’s significance not independently obvious, and noting that plaintiff made no offer of proof, the Court could only speculate about its significance – and it therefore concluded that plaintiff did not preserve the issue for appeal.

            And finally, the Court gave short shrift to the argument regarding  plaintiff’s Motion for Discovery.  Although the Court acknowledged that plaintiff had filed the motion prior to the trial and even brought it to the district court’s attention during the trial, the Court’s review of the trial transcript showed that the district court did not hear the motion, plaintiff did not ask for a ruling on the motion, and the district court did not rule on the motion.  As a result, plaintiff did not preserve the issue for appeal.

            In Gilliam, et. al., v. Foothills Temporary Employment,, No. COA22-560, 2023 WL 2125308, the Court of Appeals showed that it not only invokes the requirement of preserving issues for appeal against pro se individual litigants, but against large corporate litigants as well.  Here, a deputy Commissioner of the North Carolina Industrial Commission (the “Commission”) awarded plaintiffs death benefits resulting from the death of their college-aged son in an industrial bakery.  Defendants sought review by the Full Commission, arguing that the deputy erroneously admitted expert testimony and that, had the testimony been excluded, the deputy’s findings of facts and conclusions of law would have no support.  The Full Commission affirmed the deputy Commissioner’s finding of compensability.  Defendant appealed.

            The Court of Appeals considered the Commission’s own rules in its examination of  defendants’ argument.  Under those rules, defendants not only had to make an application for review of the deputy’s opinion and award by the Full Commission within a specific time, but the application for review must also “state[ ] with particularity all assignments of error and grounds for review, ” Workers’ Comp. R. N.C. Indus. Comm’n 701(a), an unusual rule since the North Carolina Rules of Appellate Procedure no longer limit appellate review to issues presented in an assignment of error  The Court cited three other Court of Appeals cases holding that the requirement to state the grounds of appeal with particularity may not be waived, the penalty for not stating the grounds of appeal with particularity constitutes waiver of the grounds for appeal, and grounds waived to the Commission are not preserved for appellate review.  See Roberts v. Wal-Mart Stores, Inc., 173 N.C. App. 740, 744, 619 S.E.2d 907, 910 (2005); Wade v. Carolina Brush Mfg. Co., 187 N.C. App. 245, 249, 652 S.E.2d 713, 715 (2007); Bentley v. Jonathan Piner Constr., 254 N.C. App. 362, 368, 802 S.E.2d 161, 165 (2017).

            Defendants argued that their application for review did state their grounds for appeal with particularity, but the Court disagreed.  Defendants’ application for review, the Court found, made “only a generalized assignment of error regarding the Commission’s findings of fact that fail[ed] to state with particularity” the grounds for reviewing the admissibility of the expert opinion in question.  Moreover, the Court noted that the record otherwise did not contain any document filed by defendants with the Commission stating the grounds for reviewing the admissibility of the expert opinion with particularity.  Finally, since the Commission did not even explicitly address the expert’s testimony in its opinion, it was not apparent to the Court that the Commission itself even considered the expert testimony grounds for review.  As a result, the Court held that  defendants abandoned the argument regarding the expert’s testimony and therefore failed to preserve it for review.

            The lesson for practitioners? Procedural rules matter – not only for getting your day in court, but for having an opportunity to appeal as well.  Even constitutional errors must be preserved.  If you don’t know the rules controlling how to preserve an objection at the trial level, you may well lose the opportunity to appeal errors potentially made in the trial.