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Well...as it turns out, sometimes one panel of the Court of Appeals sees things differently from another panel. As a general rule, the three judges hearing an appeal must respect precedent established in an earlier Court of Appeals case, even if that precedent seems flawed. It is the Supreme Court's job to overturn a bad decision by a Court of Appeals panel, not the job of a more-enlightened panel of the same Court. At times this can lead to some interesting and creative attempts by one panel to distinguish the holding of a panel from an earlier case that would otherwise seem to dictate a contrary result. In a recent Court of Appeals decision written by Judge Mark Davis, his panel was presented with a continuing trespass claim by a landowner against her neighbor resulting from an encroaching building - and a Court of Appeals decision from 2006 which seemed to require a dismissal of that claim because the plaintiff was not the property owner at the time the encroaching building was constructed.
In Graham v. Deutsche Bank National Trust Co., the Court of Appeals first issued an opinion reversing the trial court and denying relief to the plaintiff based upon the 2006 decision in Woodring v. Swieter. In Woodring, the Court of Appeals had held that even a continuing trespass claim cannot be sustained if the plaintiff were not the property owner at the time the trespass was committed. The Graham court, however, realized after the fact that there were previous Court of Appeals cases (and arguably one Supreme Court case, but that was less clear) that went the other way - that since the trespass in a continuing trespass case, well, continues, then a plaintiff can seek redress for each day of trespass that has occurred since the plaintiff became the property owner. In a rare move, the Graham court withdrew its first opinion and, upon rehearing, issued a different opinion that found for the plaintiff.
So, what did the Court do with the Woodring decision? Judge Davis cited authority that, when faced with conflicting decisions of the Court of Appeals, a panel should follow the older of the two lines of authority. In this case, that led the Court to side with the plaintiff. While both legally correct and respective of precedent, this is an interesting point given that practicing lawyers often use the exact reverse argument when dealing with apparently conflicting lines of case law - that a judge should pay attention to the most recent opinion because that reflects the more modern thinking on that legal issue!
Synopsis provided by David W. Hood, Patrick Harper & Dixon, LLP
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