I’ve spent a fair amount of time over the last few months working on the examination recently administered to those seeking to become North Carolina State Bar Board Certified Specialists in Appellate Practice.  During my research, I realized that the appellate courts of North Carolina appear not to have a definition of the frequently used term “fully reviewable on appeal.”

            To my ear, an issue that is fully reviewable by an appellate court is one subject to de novo review.  However, that does not appear to be the case in practice.  The Court of Appeals has issued opinions stating that discretionary rulings by a trial court are “fully reviewable on appeal,” (Riddick v. Atlantic Veneer, 94 N.C. App. 201, 203, 379 S.E.2d 661, 662 (1989)); that mixed questions of law and fact are “fully reviewable on appeal,” (Town of Apex v. Rubin, 277 N.C. App. 328, 338, 858 S.E.2d 387, 395 (2021)); and that a trial court’s conclusions of law are “fully reviewable on appeal.” (State v. Williams, 248 N.C. App. 112, 119, 786 S.E.2d 419, 425 (2016)).  Those cases seem to cover the waterfront.

            So what is the meaning of the phrase?  Does it tell us anything about the standards of review that appellate courts actually apply?  The Supreme Court of the United States addressed standards of review fairly recently in Highmark, Inc. v. Allcare Health Management Systems, Inc., 527 U.S. 559, 134 S. Ct. 1744, 188 L. Ed. 2d 829 (2014), where it stated that traditionally, decisions on questions of law are reviewed de novo, questions of fact are reviewable for clear error, and discretionary decisions are reviewed for abuse of discretion.  I am confident that the practices of North Carolina’s appellate courts are consistent with Highmark.  So it would seem to follow that including the words “fully reviewable on appeal” in an opinion really either adds nothing or obscures the standard actually being applied.

            Lest you think I am being snarky, I confess that I used the term in opinions I authored while on the Court of Appeals and on the Supreme Court.   I won’t cite them but, if you’re curious, you should not have any trouble finding them.  No doubt Beth and Matt will devote a chapter to this conundrum in the next edition of their treatise. 

–Bob Edmunds