Peaseley v. Virginia Iron, Coal & Coke Co.

• Citation: 282 N.C. 585,194 S.E.2d 133
• Decision Date: 02 February 1973
• Docket Number: No. 89,89
• Parties: Mrs. Robert H. PEASELEY, Executrix of the Will of Robert H. Peaseley, Deceased v. VIRGINIA IRON, COAL AND COKE COMPANY , a corporation.
• Court: North Carolina Supreme Court

Page 133

194 S.E.2d 133

282 N.C. 585

Mrs. Robert H. PEASELEY, Executrix of the Will of Robert H.

Peaseley, Deceased v. VIRGINIA IRON, COAL AND COKE COMPANY , a corporation.

No. 89.

Supreme Court of North Carolina.

Feb. 2, 1973.

Helms, Mulliss & Johnston, by E. Osborne Ayscue, Jr., and Fred B. Helms, Charlotte, for defendant appellant.

Blakeney, Alexander & Machen by Whiteford S. Blakeney, Charlotte, for plaintiff appellee.

MOORE, Justice.

The Court of Appeals by its decision on the second appeal affirmed the judgment of the Superior Court, which held the defendant liable for unpaid commissions on sales subsequent to Peaseley's death and prior to the termination of the June 1963 contract. Plaintiff contends that when the Court of Appeals so held and this Court refused to allow Certiorari that issue was definitively settled and became the law of the case.

In Hayes v. Wilmington, 243 N.C. 525, 91 S.E.2d 673 (1956), this Court said:

'. . . (I)t may be conceded that as a general rule when an appellate court passes on a question and remands the cause for further proceedings, the questions there settled become the law of the case, both in subsequent proceedings in the trial court and on subsequent appeal, provided the same facts and the same questions which were determined in the previous appeal are involved in the second appeal. . . .'

Therefore, when this case was appealed to the Court of Appeals the third time, that court was bound by its determination of the liability issue on the second appeal. The fact that the Court of Appeals was bound by its own decision does not mean, however, that this Court is similarly restricted by reason of its denial of Certiorari.

G.S. § 7A--31 provides the statutory authority for discretionary review by the Supreme Court of decisions of the Court of Appeals. This statute reads in pertinent part:

'(a) In any cause in which appeal has been taken to the Court of Appeals, except a cause appealed from the North Carolina Utilities Commission or the North Carolina Industrial Commission, and except a cause involving review of a post-conviction proceeding under article 22, chapter 15, the Supreme Court may in its discretion, on motion of any party to the cause or on its own motion, certify the cause for review by the Supreme Court, either before or after it has been determined by the Court of Appeals. . . . If the cause is certified for transfer to the Supreme Court after its determination by the Court of Appeals, the Supreme Court reviews the decision of the Court of Appeals.

'(c) . . . when in the opinion of the Supreme Court

(1) The subject matter of the appeal has significant public interest, or

(2) The cause involves legal principles of major significance to the jurisprudence of the State, or

(3) The decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court. Interlocutory determinations by the Court of Appeals, including orders remanding the cause for a new trial or for other proceedings, shall be certified for review by the Supreme Court only upon a determination by the Supreme Court that failure to certify would cause a delay in final adjudication which would probably result in substantial harm.'

Under this statute this Court is to review only those cases of substantial general or legal importance or in which review is necessary to preserve the integrity of precedent established by this Court. Denial of Certiorari does not mean that this Court has determined that the decision of the Court of Appeals is correct. Denial may simply mean that in the opinion of this Court the case does not require further review under the provisions of G.S. § 7A--31(c). This statute further specifically provides that discretionary review of interlocutory determinations by the Court of Appeals shall be exercised only in unusual cases where failure to do so would cause a delay in final adjudication or which would probably result in substantial harm. Denial in such cases May only mean that this Court has determined that no such harmful result is likely to occur if the petition is denied. In the present case the third appeal to the Court of Appeals is the first appeal taken from a final judgment. Absent such special circumstances as referred to in the statute, this is the first time that discretionary review by this Court has been appropriate under the statute.

Justice Lake in Builders Supplies Co. v. Gainey, 282 N.C. 261, 192 S.E.2d 449 (1972), commented on the effect of the denial of Certiorari. In that case the trial court had directed a verdict for the defendant in a case in which plaintiff was seeking to be declared the owner of the right to remove sand and gravel from a certain tract of land. The Court of Appeals reversed and this Court denied Certiorari. In its opinion the Court of Appeals called plaintiff's interest an easement. In a second appeal to the Court of Appeals, plaintiff's interest was denominated a Profit a pendre, and a jury verdict for defendant was affirmed. This Court allowed Certiorari and affirmed the Court of Appeals, but determined that plaintiff's interest was neither an easement nor a Profit a pendre. Justice Lake stated: 'Such (prior) denial (of certiorari) does not constitute approval of the reasoning upon which the Court of Appeals reached its decision.'

In State v. Case, 268 N.C. 330, 150 S.E.2d 509 (1966), this Court considered the effect of the denial of a writ of Certiorari. In that case defendant was convicted of forgery. He petitioned for a writ of habeas corpus alleging certain errors in his trial and demanding release from prison. The trial judge ordered a new trial for errors committed in the first trial. Defendant petitioned for Certiorari on two grounds. First, he said the judge erred in ordering a new trial which he did not want and had not requested. Second, he said the judge committed error in not ordering him released from prison. Defendant's petition for Certiorari was denied by this Court. A new trial was held and defendant entered a plea of double jeopardy. The plea was not allowed, and defendant was convicted. This Court reversed, holding that defendant's plea of former jeopardy should have been allowed. In discussing the effect of the denial of Certiorari, Justice Sharp quoted with approval Mr. Justice Frankfurter in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 437, 97 L.Ed. 469 (1952): 'The denial of a writ of Certiorari imports no expression of opinion upon the merits of the case. . . .'

The United States Supreme Court in Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629 (1916), dealt at length with the question of whether a denial of Certiorari makes the lower appellate court's decision the final law of the case:

'It is contended that this question is settled otherwise, at least as between these parties, by the decision of the circuit court of appeals on the first appeal, and our refusal to review that decision upon complainant's petition for a writ of certiorari, and that the only questions open for review at this time are those that were before the court of appeals upon the second appeal. This, however, is based upon an erroneous view of the nature of our jurisdiction to review the judgments and decrees of the circuit court of appeals by certiorari. . . . As has been many times declared, this is a jurisdiction to be exercised sparingly, and only in cases of peculiar gravity and general importance, or in order to secure uniformity of decision. (Citations omitted.) And, except in extraordinary cases, the writ is not issued until final decree. . . .

'It is, of course, sufficiently evident that the refusal of an application for this extraordinary writ is in no case equivalent to an affirmance of the decree that is sought to be reviewed. And, although in this instance the interlocutory decision may have been treated as settling 'the law of the case' so as to furnish the rule for the guidance of the referee, the district court, and the court of appeals itself upon the second appeal, this court, in now reviewing the final decree by virtue of the writ of certiorari, is called upon to notice and rectify any error that may have occurred in the interlocutory proceedings. (Citations omitted.)'

Accord, Mercer v. Theriot, 377 U.S. 152, 84 S.Ct. 1157, 12 L.Ed.2d 206 (1964).

As a general rule this Court will consider only those aspects of a decision of the Court of Appeals which are assigned as error in the petition for Certiorari and which are preserved by argument or the citation of authority with reference thereto in the brief filed by the petitioner in this Court. In State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968), Justice Lake discussed the scope of proper review on a petition for Certiorari. In that case defendant was found guilty of robbery by the use of firearms. In his appeal to the Court of Appeals, defendant assigned as error the admission of an identification by the prosecuting witness, the denial of his motion for judgment as of nonsuit, and a specified part of the instructions to the jury. The Court of Appeals affirmed the conviction finding no merit in any of the assignments of error. Defendant petitioned this Court for a writ of Certiorari, which was allowed. In his petition and in his brief before this Court, the defendant did not discuss the denial of his motion for judgment as of nonsuit nor the alleged error in the instructions of the trial judge. Under these facts Justice Lake, speaking for the Court, said:

'When this Court, after a decision of a cause by the Court of Appeals and pursuant to the petition of a party thereto as authorized by G.S. 7A--31, grants certiorari to review the decision of the Court of Appeals, only the decision of that Court is before us for review. We inquire into proceedings in the trial court solely to determine the correctness of the decision of the Court of Appeals. Our inquiry is restricted to rulings of ...