Cryan v. Nat'l Council of YMCAs of the U.S. ( 2023 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 424A21
Filed 16 June 2023
JOSEPH CRYAN, SAMUEL CRYAN, KERRY HELTON, THOMAS HOLE,
RICKEY HUFFMAN, JOSEPH PEREZ, JOSHUA SIZEMORE, DUSTIN
SPRINKLE, and MICHAEL TAYLOR
v.
NATIONAL COUNCIL OF YOUNG MEN’S CHRISTIAN ASSOCIATIONS OF
THE UNITED STATES OF AMERICA, YOUNG MEN’S CHRISTIAN
ASSOCIATION OF NORTHWEST NORTH CAROLINA d/b/a KERNERSVILLE
FAMILY YMCA, and MICHAEL TODD PEGRAM
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 280 N.C. App. 309 (2021), allowing defendant’s petition for writ
of certiorari, and vacating and remanding an order entered on 22 July 2020 by Judge
Richard S. Gottlieb in Superior Court, Forsyth County. Heard in the Supreme Court
on 25 April 2023.
Lanier Law Group, P.A., by Donald S. Higley II, Robert O. Jenkins, and Lisa
Lanier, for plaintiffs-appellants.
Nelson Mullins Riley & Scarborough LLP, by Lorin J. Lapidus, G. Gray Wilson,
Denise M. Gunter, and Martin M. Warf; and Bell, Davis & Pitt, P.A., by Kevin
G. Williams, for defendant-appellee YMCA of Northwest North Carolina.
DIETZ, Justice.
This appeal from a divided Court of Appeals decision presents an opportunity
to reaffirm two settled principles of appellate procedure.
The first principle concerns the writ of certiorari, an extraordinary writ used
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to aid an appellate court’s jurisdiction. When contemplating whether to issue a writ
of certiorari, our state’s appellate courts must consider a two-factor test. That test
examines (1) the likelihood that the case has merit or that error was committed below
and (2) whether there are extraordinary circumstances that justify issuing the writ.
The second principle concerns appeals to this Court based on a dissent at the
Court of Appeals. To confer appellate jurisdiction, a Court of Appeals dissent must
specifically set out the basis for the dissent—meaning the reasoning for the
disagreement with the majority. A dissent that does not contain any reasoning on an
issue cannot confer jurisdiction over that issue.
Applying these principles here, we hold that the Court of Appeals was well
within its sound discretion to issue a writ of certiorari in this case. We further hold
that the issuance of the writ of certiorari was the only issue for which the dissent set
out any reasoning. We therefore decline to address the remaining issues contained in
the plaintiffs’ new brief.
Facts and Procedural History
On 26 June 2019, Defendant Michael Todd Pegram pleaded guilty to multiple
charges of felony sexual assault. Pegram committed these crimes while he was
employed by Defendant Young Men’s Christian Association of Northwest North
Carolina d/b/a Kernersville Family YMCA (the YMCA).
After Pegram’s criminal case concluded, a group of plaintiffs brought a tort suit
against Pegram and other parties, including the YMCA.
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Plaintiffs’ claims depend on a law known as the SAFE Child Act. See An Act to
Protect Children from Sexual Abuse and to Strengthen and Modernize Sexual
Assault Laws, S.L. 2019-245, 2019 N.C. Sess. Laws 1231. Plaintiffs acknowledge that
their sexual abuse allegations occurred decades ago and that their claims would be
barred by statutes of limitations in effect before enactment of the SAFE Child Act.
But they assert that the SAFE Child Act revived their claims many years after the
existing statute of limitations otherwise would have expired.
The YMCA moved to dismiss plaintiffs’ claims under Rule 12(b)(6) of the Rules
of Civil Procedure on the ground that the SAFE Child Act’s revival of the statute of
limitations violated the North Carolina Constitution. Importantly, the YMCA argued
that the SAFE Child Act was unconstitutional only as applied to defendants for whom
the statute of limitations already had expired. The YMCA contends that there is
another category of defendants impacted by the act—those with unexpired statutes
of limitations—and that the act is permissible with respect to those defendants
because extending an unexpired limitations period (as opposed to an expired one) is
not unconstitutional.
Plaintiffs rejected this dichotomy and asserted that the YMCA’s claim was a
facial challenge to the SAFE Child Act. They moved to transfer the claim to a three-
judge panel of superior court judges under N.C.G.S. § 1-267.1, which applies to
“claims challenging the facial validity of an act of the General Assembly.”
After a hearing, the trial court determined that the YMCA’s motion asserted a
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facial challenge and entered an order transferring the issue to a three-judge panel.
The YMCA filed a timely notice of appeal to the Court of Appeals. Plaintiffs
then moved to dismiss the appeal, asserting that it was impermissibly interlocutory.
In response, the YMCA filed a petition for a writ of certiorari.
The Court of Appeals issued a divided decision. Cryan v. Nat’l Council of
YMCAs of the U.S., 280 N.C. App. 309 (2021). The court unanimously concluded that
the YMCA had no right to appeal from the trial court’s interlocutory order
transferring the case to a three-judge panel. Id. at 315. But the majority chose to
exercise its discretion to issue a writ of certiorari. Id. at 315–16. The majority then
examined the merits of the parties’ arguments and held that the YMCA had asserted
an as-applied challenge. Id. at 317–18. As a result, the majority vacated the transfer
order and remanded the case to the trial court for further proceedings. Id. at 318.
The dissent argued that it was improper to issue a writ of certiorari and
described in detail a series of reasons why issuing a writ in these circumstances
undermines the intent of the General Assembly, improperly shifts trial court
responsibilities to the appellate courts, and encourages procedural gamesmanship by
the litigants. Id. at 319–21 (Carpenter, J., dissenting).
Plaintiffs timely filed a notice of appeal to this Court based on the dissent.
Plaintiffs did not petition for discretionary review of any additional issues not
addressed by the dissent.
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Analysis
I. The writ of certiorari
We begin by addressing the issue expressly set out in the Court of Appeals
dissent: whether it was appropriate to issue a writ of certiorari to review the trial
court’s order.
The writ of certiorari is one of the “prerogative” writs that the Court of Appeals
may issue in aid of its own jurisdiction. N.C.G.S. § 7A-32(c) (2021). It “is intended as
an extraordinary remedial writ to correct errors of law.” Button v. Level Four
Orthotics & Prosthetics, Inc., 380 N.C. 459, 465 (2022) (cleaned up).
The procedure governing writs of certiorari is found in Rule 21 of the Rules of
Appellate Procedure. But “Rule 21 does not prevent the Court of Appeals from issuing
writs of certiorari or have any bearing upon the decision as to whether a writ of
certiorari should be issued.” State v. Killette, 381 N.C. 686, 691 (2022). Instead, the
decision to issue a writ is governed solely by statute and by common law. Id.Our precedent establishes a two-factor test to assess whether certiorari review
by an appellate court is appropriate. First, a writ of certiorari should issue only if the
petitioner can show “merit or that error was probably committed below.” State v.
Ricks, 378 N.C. 737, 741 (2021); State v. Grundler, 251 N.C. 177, 189 (1959). This
step weighs the likelihood that there was some error of law in the case. Button, 380
N.C. at 465–66.
Second, a writ of certiorari should issue only if there are “extraordinary
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circumstances” to justify it. Moore v. Moody, 304 N.C. 719, 720 (1982). We require
extraordinary circumstances because a writ of certiorari “is not intended as a
substitute for a notice of appeal.” Ricks, 378 N.C. at 741. If courts issued writs of
certiorari solely on the showing of some error below, it would “render meaningless
the rules governing the time and manner of noticing appeals.” Id.
There is no fixed list of “extraordinary circumstances” that warrant certiorari
review, but this factor generally requires a showing of substantial harm, considerable
waste of judicial resources, or “wide-reaching issues of justice and liberty at stake.”
Doe v. City of Charlotte, 273 N.C. App. 10, 23 (2020).
Ultimately, the decision to issue a writ of certiorari rests in the sound
discretion of the presiding court. Ricks, 378 N.C. at 740. Thus, when the Court of
Appeals issues a writ of certiorari, we review solely for abuse of discretion, examining
whether the decision was “manifestly unsupported by reason, or so arbitrary that it
could not have been the result of a reasoned decision.” State v. Locklear, 331 N.C. 239,
248 (1992) (cleaned up); see also Ricks, 378 N.C. at 740.
Applying this framework here, the Court of Appeals’ decision to issue a writ of
certiorari was well within the court’s sound discretion. With respect to the merit
factor, the court examined the parties’ arguments and determined that the YMCA’s
argument had merit. Cryan v. Nat’l Council of YMCAs of the U.S., 280 N.C. App. 309,
318 (2021). With respect to the extraordinary circumstances factor, the court
determined that certiorari review was appropriate in the interest of “judicial
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economy.” Id. at 315–16. The court observed that the appeal raised a recurring issue
concerning “a relatively new statutory scheme which has limited jurisprudence
surrounding it.” Id. at 316. The court also noted that the question on appeal involved
the trial court’s “subject-matter jurisdiction,” which potentially deprives the trial
court of any power to rule in the case. Id. at 314–15. Although the Court of Appeals
did not expressly state the follow-on point, this outcome could lead to a considerable
waste of judicial resources if a trial court works through a complicated, novel
constitutional issue only for that work to later be declared a nullity.
In short, the Court of Appeals’ reasoning readily satisfies the abuse of
discretion standard. The court explained its reasoning, which tracked the two-factor
test established in our case law. That reasoning was not manifestly arbitrary. Thus,
our review goes no further and we affirm the Court of Appeals’ issuance of the writ of
certiorari.
II. The scope of review based on the dissent
We now turn to whether there is anything else for us to address in this appeal.
Our jurisdiction in this case is based solely on the dissent in the Court of Appeals.
See N.C.G.S. § 7A-30(2) (2021). Rule 16(b) of the Rules of Appellate Procedure states
that, when we have jurisdiction based solely on a dissent, our review “is limited to a
consideration of those issues that are (1) specifically set out in the dissenting opinion
as the basis for that dissent.” N.C. R. App. P. 16(b).
Many years ago, this Court held that Rule 16(b) required dissenting judges to
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explain their reasoning in order to confer jurisdiction on this Court. C.C. Walker
Grading & Hauling, Inc. v. S.R.F. Mgmt. Corp., 311 N.C. 170, 176 (1984). In that
case, the Court of Appeals opinion stated at its conclusion that “Chief Judge VAUGHN
dissents.” C.C. Walker Grading & Hauling, Inc. v. S.R.F. Mgmt. Corp., 66 N.C. App.
170, 173 (1984). We held that this was insufficient to confer jurisdiction on this Court
because when “the dissenter does not set out the issues upon which he bases his
disagreement with the majority, the appellant has no issue properly before this
Court.” C.C. Walker Grading & Hauling, 311 N.C. at 176.
In their new brief to this Court, plaintiffs challenge two separate issues from
the Court of Appeals opinion: first, the majority’s decision to issue the writ of
certiorari, and second, the majority’s determination that the YMCA asserted an as-
applied constitutional challenge (not a facial challenge) to the SAFE Child Act.
The dissenting judge set out in detail the reasons why he opposed the first of
those two decisions by the majority. In several pages of thorough analysis, the dissent
asserted that issuing a writ undermines the intent of the General Assembly,
improperly shifts trial court responsibilities to the appellate courts, and encourages
procedural gamesmanship by the litigants. Cryan, 280 N.C. App. at 319–21
(Carpenter, J., dissenting).
By contrast, the dissent did not expressly oppose the majority’s second
decision—the determination that the YMCA raised an as-applied challenge—or
provide any explanation for why that decision was wrong. Plaintiffs point to a single
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sentence at the conclusion of the dissent, after several pages of reasoning on the
certiorari issue, in which the dissent states the following: “Because I would determine
jurisdiction to decide the constitutional issue is proper before the three-judge panel
in Wake County, I would deny Defendant’s petition for writ of certiorari.” Id. at 321.
This single sentence is insufficient to confer jurisdiction over the issue of
whether the YMCA’s claim is a facial or an as-applied challenge. Plaintiffs contend
that, because the dissent stated that jurisdiction “is proper before the three-judge
panel,” and because this statement could be true only if the YMCA’s claim were a
facial challenge, the dissent necessarily disagreed with the majority’s determination
that the YMCA’s claim was an as-applied challenge.
But that is all inference. The dissent did not say that. If this sort of vague,
implied disagreement with the majority’s decision—one in which the dissenting judge
provided no reasoning—could be sufficient to confer jurisdiction on this Court, so too
would a judge in a single-issue appeal stating, “I dissent.” As noted above, this Court
has long rejected the notion that this sort of statement, without providing any
reasoning, satisfies Rule 16(b)’s requirement to “specifically set out in the dissenting
opinion” the “basis for that dissent.” N.C. R. App. P. 16(b); C.C. Walker Grading &
Hauling, 311 N.C. at 176. Consistent with Rule 16 and this Court’s precedent, we
hold that dissenting judges must set out their reasoning on an issue in the dissent in
order for the dissent to confer appellate jurisdiction over that issue under N.C.G.S.
§ 7A-30(2). That did not occur here and, accordingly, we decline to address the second
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issue raised in plaintiffs’ new brief.
Conclusion
We affirm the decision of the Court of Appeals.
AFFIRMED.
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