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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 22-CV-0997

ABDULKADIR OSMAN, APPELLANT,

V.

FIRST PRIORITY MANAGEMENT, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2019-LTB-020806)

(Hon. Heidi M. Pasichow, Trial Judge)

(Submitted December 7, 2023 Decided February 8, 2024)

Laurence L. Socci was on the brief for appellant.

Michael J. Neary was on the brief for appellee.

Before MCLEESE and DEAHL, Associate Judges, and THOMPSON, Senior 

Judge.

Opinion for the court by Senior Judge THOMPSON.

Dissenting Opinion by Associate Judge MCLEESE at page 16.

THOMPSON, Senior Judge: On July 30, 2019, appellant Abdulkadir Osman 

was informed by appellee First Priority Management (“First Priority,” the 

management company for his employer/building owner Royal Operating 

Company) that he was being terminated from his position as building engineer. As 
2

a condition of his employment, Mr. Osman had long occupied Unit 10 at the 

employer’s building located at 3130 Wisconsin Ave. NW, and First Priority 

notified him that he had two months to vacate the apartment following his 

termination. After Mr. Osman refused to vacate, First Priority brought a complaint 

to recover possession of Unit 10. Following a jury trial from April 18, 2022, to 

April 22, 2022, the jury returned a verdict form finding that Mr. Osman was not 

terminated for discriminatory or retaliatory reasons and that he was “never a tenant 

in [U]nit 10,” but also finding, in answer to a question designated as Question 7,

that Mr. Osman was not required to vacate the Unit after his employment was 

terminated.

After the jury foreperson read the verdicts and the trial court dismissed the 

jurors, the court and counsel for the parties came to focus on what they discussed 

as the jury’s “confusing” and “ambiguous” verdict on Question 7. The trial court 

suggested that the jury’s answers to the first six questions provided a legal basis for 

a non-redeemable judgment of possession. However, rather than issuing judgment, 

the court requested briefing from the parties on what the jury’s answers meant and 

what remedy was available. 

First Priority filed a “Motion for Judgment” on June 3, 2022, asking the trial 

court to reconcile the jury’s verdict in its favor. Following a hearing on September

16, 2022, the trial court issued a judgment of possession in favor of First Priority.
3

Appellant appeals from that order, contending that First Priority’s Motion for 

Judgment was procedurally improper and that the trial court abused its discretion 

in entering the judgment of possession. For the reasons that follow, we vacate the 

judgment and remand for further proceedings.

I. Background

The evidence at trial established that Mr. Osman had worked for Royal 

Operating Company, a family-owned business, for 38 years. Witnesses for First 

Priority testified that that Mr. Osman was terminated after it was discovered that he 

had breached the employer’s trust in several ways. Mr. Osman denied 

wrongdoing, but also testified that the owner of his employer, its previous 

President Anne Maiatico, told him that he did not “have to ever worry about 

leaving Apartment 10.” According to his testimony, there was another long-time 

employee of the employer who was permitted to stay in her unit after she was no 

longer an employee. Joseph Sellers—who married into the family of owners of 

Royal Operating Company, began working with the company in 2012, and was the 

company President at the time of trial—testified that he had no knowledge of any 

promise made to Mr. Osman that he could stay in his apartment for life and that he 

could not ask Ms. Maiatico about the matter because she was suffering from 

Alzheimer’s disease. Mr. Sellers also testified that any such promise would have 
4

required a decision by the company’s Board of Directors and would have been put 

in writing. 

Following trial, the jury returned unanimous verdicts. The verdict form had 

seven questions, which the jury answered as indicated below:

1) Do you find that Plaintiff has proven that it is more 

likely than not that Defendant was an employee of the 

owner of the building at 3130 Wisconsin Ave. N.W., 

Washington, D.C. 20016? Yes.

2) Do you find that the owner terminated Defendant’s 

employment? Yes.

3) Do you find that Plaintiff proved that it is more likely 

than not Defendant was never a tenant in unit 10 of 

Plaintiff’s or owner’s? Yes.

4) Do you find that, at the time Defendant’s employment 

was terminated, Defendant occupied unit 10 as a 

condition of his employment and that Defendant’s 

occupancy was for the convenience of the owner of 

the building? Yes.

5) Do you find that Defendant proved it was more likely 

than not that the owner of the building fired 

Defendant for retaliatory or discriminatory reasons?

No.

6) Do you find that Defendant occupied unit 10 at the 

time his employment was terminated? Yes.

7) Do you find that Defendant was required to vacate 

unit 10 after his employment was terminated by the 

owner of the building? No.

After thanking the jurors for their service and releasing them, the trial court 

asked the parties what they were “seeking . . . based on th[e] verdict.” Counsel for 

First Priority suggested that the parties would have to “start over again,” prompting 

the trial court to recognize that it had “not read . . . question [7] accurately” and to 
5

remark that Question 7 was ambiguous in its reference to “after his employment 

was terminated.” Stating that it was not clear that the jury had “precluded relief

based upon the complaint” for possession, the trial court withheld judgment, 

directing the parties to submit briefs on the issue and stating that a later hearing 

would be required to determine the appropriate remedy. 

On July 3, 2022, more than two months after the jury returned its verdicts, 

First Priority filed a pleading entitled “Motion for Judgment,” in which it argued

that the jury’s answers to questions 1-6 could not “support a decision in favor of 

[Mr. Osman]” and asked the trial court to grant judgment as a matter of law in 

favor of First Priority. Mr. Osman opposed the motion, arguing that the time 

period for moving for judgment as a matter of law or moving to alter or amend 

judgment or for a new trial had passed. On September 16, 2022, the trial court 

held a hearing to discuss the parties’ filings. At the hearing, the trial court noted 

that no judgment had yet been entered and that entry of judgment was a part of its 

responsibility, for which no motion was required. 

On November 10, 2022, the trial court issued a written “Order Granting 

Plaintiff’s Motion for Judgment.” The trial court stated that it did “not believe [the 

jury’s answers] to be legally inconsistent” but that it had discretion to reconcile 

them unless they were “‘so logically and legally inconsistent’ that reconciliation is 

impossible.” Citing District of Columbia v. Tulin, 994 A.2d 788, 798 (D.C. 2010), 
6

the court invoked its discretion to undertake reconciliation of a “‘facially 

inconsistent verdict’” where the jury “‘may have misunderstood a key instruction’” 

(bold font and italics in the original). Noting that the jury might have interpreted 

Question 7 as asking whether Mr. Osman was required to vacate the apartment 

“immediately” (an interpretation that the court had suggested during the discussion 

that ensued right after the jury was discharged, and that First Priority urged in its 

Motion for Judgment), and citing its “‘broad discretion’ to reconcile answers to 

questions posed to jurors” in the type of circumstance presented, the trial court 

explained that it would reconcile the jury’s “facially unclear” answer to Question 7 

“with the far-clearer answers to the other six questions” and issue a nonredeemable judgment in favor of First Priority. 

The court ordered Mr. Osman to vacate Unit 10 within 90 days but stayed 

enforcement of the judgment pending resolution of this appeal.

1

II. Discussion

On appeal, Mr. Osman makes a two-pronged argument. First, he argues that 

the trial court “improperly interpreted the jury’s verdict[] when the jury answered a 

question on the Verdict Form inconsistent with other questions on the jury form.” 

 

1 According to Mr. Osman’s opposition to First Priority’s Motion for 

Judgment, Mr. Osman at the time remained in Unit 10, paying rent at the “current 

market rate.” 
7

He argues that there is no evidence that the jury’s answer to Question 7 was 

“‘facially unclear’” as the trial court found, and no evidence that the jury 

misunderstood any instruction given by the court. He contends that under Super. 

Ct. Civ. R. 49(b), given the inconsistency in the jury’s findings, the trial court 

should instead have ordered a new trial.

2

 He asks this court to remand the case to 

the trial court for a new trial.

Second, Mr. Osman argues that it was procedurally improper for the trial 

court to grant First Priority’s Motion for Judgment because the requirements of 

Superior Court Civil Rules 50 and 59 were not met. The motion was not proper 

under Rule 50, he argues, because no motion for judgment as a matter of law had 

been made before the case was submitted to the jury and thus no such “renewed” 

motion could be made within 28 days after the jury was discharged. See Super. Ct. 

Civ. Rule 50(a)-(b). Nor, he emphasizes, was the motion permitted under Rule 

59(e) because it was not filed within 28 days after the entry of judgment. 

 

2 First Priority argues that Mr. Osman waived any argument that the jurors’ 

findings were irreconcilably inconsistent, but we need not consider the issue of 

waiver because, as discussed infra, we accept the trial court’s finding that the 

verdicts were not conflicting. In any event, we note that in the immediate wake of 

the verdicts, Mr. Osman’s position was that the jury “said no,” a remark by which 

he seemed to urge the court simply to give effect to the jury’s determination that he 

was not required to vacate his unit. Thus, Mr. Osman did not, by failing to make 

an inconsistency objection immediately, waive or forfeit a claim about 

inconsistency; rather, he advanced the opposite claim.
8

Taking Mr. Osman’s arguments in reverse order, we note that his analysis of 

First Priority’s Motion for Judgment by reference to the foregoing rules does not 

quite square with either the procedural chronology or the substance of the motion.3

 

As a matter of chronology (and impetus), the “motion” is best viewed as simply a 

responsive briefing, filed in response to the trial court’s May 17, 2022, order “Sua 

Sponte Setting Motion’s Schedule and a Motion’s Hearing,” wherein the court 

directed First Priority to file a motion and both parties to file memoranda 

addressing “what to do next” in light of the possibly inconsistent verdict. 

In substance, the Motion for Judgment might more fairly be deemed in part a 

motion for judgment notwithstanding the verdict even though it did not comply 

procedurally with the requirements of Rule 50 (in that it did not renew a motion for 

a directed verdict). The motion argued that there was “no legal basis for the jury to 

decide that [Mr. Osman] does not have to vacate his unit” and that Mr. Osman had 

“no defenses to” First Priority’s claim to possession of the unit. In substance, then, 

the motion was a motion for judgment notwithstanding the verdict, in that it

requested that the trial court, viewing the evidence in the light most favorable to 

the nonmoving party, direct judgment because “the evidence is so clear that 

 

3 “The nature of a motion does not turn on its caption or label, but rather its 

substance.” Nuyen v. Luna, 884 A.2d 650, 654 (D.C. 2005); see also id. at n.3

(explaining that we look at the relief a filing seeks when determining what rule it 

best fits). 
9

reasonable men could reach but one conclusion.” Bauman v. Sragow, 308 A.2d 

243, 244 (D.C. 1973). But we have said that “[a] judgment notwithstanding the 

verdict is proper only in ‘extreme’ cases.” Oxendine v. Merrell Dow Pharmas., 

Inc., 506 A.2d 1100, 1103 (D.C. 1986), i.e., cases in which “no reasonable person, 

viewing the evidence in the light most favorable to the prevailing party, could 

reach a verdict in favor of that party.” Arthur Young & Co. v. Sutherland, 631 

A.2d 354, 363 (D.C. 1993) (internal quotation marks and citations omitted). For 

the reasons we discuss below (related to Mr. Osman’s argument about the 

improper interpretation of the jury’s verdict), we conclude that this was not such an 

extreme case. We conclude that it was not necessarily the timing of First Priority’s 

Motion for Judgment that foreclosed the trial court from entering judgment in its 

favor notwithstanding the verdict.

4

 Rather, viewing the evidence in the light most 

 

4 Indeed, we have emphasized the “crucial” distinction between (i) general 

verdicts and (ii) special verdicts in the form of jury answers to interrogatories, 

explaining that the rule that “if the jury rendered inconsistent general verdicts, 

failure to object timely waives that inconsistency as a basis for seeking retrial” 

“may not apply to special verdicts”; rather, “inconsistent special verdicts . . . may 

support a motion for a new trial even if no objection was made before the jury was 

discharged.” President & Dirs. of Georgetown College v. Wheeler, 75 A.3d 280, 

289 (D.C. 2013) (internal quotes omitted); see also Est. of Underwood v. Nat’l

Credit Union Admin., 665 A.2d 621, 647-48 (D.C. 1995) (suggesting that the 

waiver rule does not apply when a verdict “is so ambiguous . . . that it . . . would 

leave the [c]ourt in the position of having no alternative but to guess at what the 

jury intended” and acknowledging that there may be cases where an inconsistency 

is “discernible only on reflection,” that “might well be exempt from the waiver 

rule”); accord, Pierce v. S. Pac. Transp. Co., 823 F.2d 1366, 1369 (9th Cir. 1987)
10

favorable to Mr. Osman (the ostensibly prevailing party in light of the jury’s “no” 

answer to Question 7), we conclude that what foreclosed judgment in First 

Priority’s favor notwithstanding the verdict was that in light of the testimony and 

arguments presented at trial, the jury could reasonably reach a verdict in Mr. 

Osman’s favor in response to Question 7 even while finding in First Priority’s 

favor on the other verdict-form questions.

The jury’s answer to Question 7 may have been facially unclear to an 

observer who had not heard or was not apprised of all the evidence in the case, or 

may have seemed to that same observer to be inconsistent with the jury’s other 

findings. Upon our review of the testimony and arguments of counsel, however, 

we think a reasonable juror could have rejected Mr. Osman’s discrimination claim 

and concluded that Mr. Osman was never a tenant of Unit 10, but still concluded 

that he was not required to vacate Unit 10 after the termination of his employment. 

That is because, as recounted above, the jury heard Mr. Osman’s testimony that 

one of the owners of Royal Operating Company—the company’s former President

Anne Maiatico—had told him that he did not “have to ever worry about leaving 

 

(“[A] motion for directed verdict need not be a condition precedent for a motion 

for JNOV when the challenge is to the consistency of the answers under a . . . 

special verdict, and not to the sufficiency of evidence supporting a general 

verdict.”); Massey v. Rusche, 594 S.W.2d 334, 337 (Mo. Ct. App. 1980) (reasoning 

that “[w]hat these verdicts would be could not have been known to anyone until 

they were returned, so that up to that point there was nothing to preserve as error,” 

such that waiver was “inapposite under the[] circumstances”). 
11

Apartment 10.” Mr. Osman further testified that he had saved the company 

“millions” of dollars over the course of his employment by suggesting moneysaving fixes. Witnesses for the defense also told the jury about accommodations 

that had been made to enable Mr. Osman’s family to stay in Unit 10 even as it 

grew, including by permitting a wall to be removed between Units 10 and 11 to 

permit the family to expand into Unit 11, renting nearby Unit 12 for use by Mr. 

Osman’s sons, and allowing the Osman family to use both additional units for 

“reduce[d]” rents. Although First Priority’s witness Joseph Sellers, the President 

of Royal Operating Company at the time of trial, did not think the company would 

have promised Unit 10 to Mr. Osman for life, Mr. Sellers had worked for the 

company for only a fraction of the time Mr. Osman had been a company employee, 

and he (Mr. Sellers) was unable to confirm with Ms. Maiatico whether she had 

made such a promise. And although Mr. Sellers opined that any such promise 

would have been in writing, the jury was not given an instruction that might have 

required them to reject Mr. Osman’s apartment-for-life testimony (such as an 

instruction that a promise involving real property would not have been valid or 

enforceable if not memorialized in writing). 

In closing argument, Mr. Osman’s counsel highlighted Mr. Osman’s 

testimony about an oral agreement with the owner that “he was given Apartment 

10 for life” and emphasized that First Priority “provided no evidence to prove 
12

otherwise.”5 We conclude that although the jury was not compelled to credit Mr. 

Osman’s account, it was entitled to believe his account, which was bolstered by his 

additional testimony about another longtime Royal Operating Company employee 

who was allowed to live in one of the company’s apartments for life, as well as by 

Mr. Sellers’s testimony that the family-run company “treat[ed] everyone like 

family.” Thus, the jury could have determined that Mr. Osman was entitled to stay 

in his unit for life even while finding that he had not been wrongfully terminated 

and had never been a tenant.6

Thus, in our view, to those who had heard the testimony and arguments, the 

jury’s answer to Question 7 was not necessarily facially unclear. But this court’s 

role is not to second-guess whether the jury’s findings could be viewed as 

conflicting. We explained in Tulin that “[t]he reviewing court, upon reviewing the 

 

5 Thus, First Priority’s argument that “the sole defenses Osman put before 

the jury were whether he was actually a tenant and whether the building owner 

terminated him for discriminatory or retaliatory reasons” is incorrect, as was First 

Priority’s counsel’s argument to the trial court that the parties “didn’t give [the 

jury] a basis for” a conclusion that Mr. Osman could stay in his Unit. Counsel for 

First Priority also argued to the trial court that the jury “did not validate [Mr. 

Osman’s] defenses,” but as Mr. Osman’s counsel replied, explicitly doing so was 

“not part of the verdict form.” 

6 Cf. D.C. Hous. Auth. v. Pinkney, 970 A.2d 854, 869 (D.C. 2009) (citing 

arguments presented to the jury “that would apply to [defendant] DCHA, but not to 

[co-defendant] Quality Elevator” in rejecting argument that “no reasonable jury . . . 

could have found that DCHA was negligent but Quality Elevator was not.”).
13

jury’s answers, must not determine whether the findings may be viewed as 

conflicting, but rather, must ascertain if there is any reasonable basis upon which 

the answers may be reconciled.” 994 A.2d at 7997 (italics added) (quoting 75 B. 

Am. Jur. 2d Trial, § 1586, at 380 (2007)); see also Tulin, 994 A.2d at 802 (“We do 

not determine whether the findings may reasonably be viewed as conflicting; to the 

contrary, the question is whether there is any reasonably possible basis upon which 

they may be reconciled.” (quoting Luna v. S. Pac. Transp. Co., 724 S.W.2d 383, 

384 (Tex. 1987)); see also Griffin v. Matherne, 471 F.2d 911, 915 (5th Cir. 1973) 

(“[T]he test to be applied in reconciling apparent conflicts between the jury’s 

answers is whether the answers may fairly be said to represent a logical and 

probable decision on the relevant issues as submitted[.]”). We focus therefore on 

whether the trial court’s reconciliation of the jury’s interrogatory answers was “a 

reasonably possible basis” and a “logical and probable” basis for a reconciliation.8

 

7 But see id. at 800 (observing nevertheless that the jury’s findings in Tulin 

were “not ‘ineluctably inconsistent’ (or indeed, inconsistent at all)”). 

8 The trial court rightly made an effort at reconciliation. We have said that 

“[i]f the answers to [general] verdict questions can be reconciled on any theory, the 

verdict will not be disturbed.” Tulin, 994 A.2d at 798-99 (quoting 75 B. Am. Jur. 

2d Trial, § 1586, at 378-79 (2007)); see also id. at 798 (“Where there is a view of 

the case that makes the jury’s answers to special interrogatories consistent, they 

must be resolved in that way.” (brackets and internal quotation marks omitted)); 

Bowler v. Stewart-Warner Corp., 563 A.2d 344, 348 (D.C. 1989) (same); see also 

Pierce, 823 F.2d at 1370 (“A reviewing court must uphold a verdict even if it finds 

only ‘slight’ or ‘minimal’ facts to support a jury’s findings[.]”).
14

We conclude that trial court’s reconciliation of the jury’s interrogatory 

answers was neither “a reasonably possible” nor a “logical and probable” basis for 

reconciling the jury’s answers. The trial testimony about the instruction to Mr. 

Osman that he had sixty days post-termination to vacate the apartment was 

undisputed, and First Priority’s counsel, who told the jurors in her opening 

statement that First Priority would ask them at the close of the evidence to award 

First Priority “a judgment for possession of Unit 10,” argued in closing that the 

jury’s completion of the verdict form should recognize that Mr. Osman was 

“grasping at straws to stay in an apartment that he occupied as an employee” but 

that he “has to leave.” In light of all the foregoing, an interpretation that the jury 

was focused on (or thought it needed to decide through its ultimate verdict) 

whether Mr. Osman had to leave his unit immediately after termination is not 

plausible.9

 We therefore are constrained to conclude that the trial court abused its 

discretion when it reconciled the jury’s answers, and entered a judgment for 

 

9 Cf. Warlick v. Cross, 969 F.2d 303, 308 (7th Cir. 1992) (“Warlick’s second 

alternate interpretation of the answer is unacceptable because it has no basis in the 

evidence” in that the “jury was not presented with any evidence [or argument] to 

support the proposition” in question). 

We also discern nothing in the record to indicate that the jury misunderstood 

any instruction given by the court. Cf. Tulin, 994 A.2d at 799 (“[A] jury’s facially 

inconsistent verdict does not require a new trial if the inconsistency can fairly be 

attributed to the jury’s misunderstanding of the court’s instructions.”). Neither the 

parties nor the trial court identified any possibly misunderstood instruction.
15

possession in favor of First Priority, on that basis. By contrast, an explanation 

focused on the Mr. Osman’s apartment-for-life claim, which is grounded in Mr. 

Osman’s testimony and the arguments by his counsel, is quite plausible. Unlike 

the theory about the jury’s being focused on whether Mr. Osman was required to 

vacate immediately, the apartment-for-life theory, which the trial court appears not 

to have taken into account, was both “supported by the evidence” and “argued on 

behalf of” Mr. Osman. Tulin, 994 A.2d at 801. However, as we cannot say that 

this is the only reasonable interpretation of the jury’s verdict, we will not impose 

our own reconciliation. 

Instead, we conclude that vacatur of the judgment and a remand for the trial 

court to reconsider the appropriate relief without reliance on the interpretation we 

have determined is implausible. See Mizrachi v. Mizrachi, 683 A.2d 137, 139 

(D.C. 1996) (reversing and remanding for further proceedings after the trial court

based its decision to not lower alimony and child support payments on an 

interpretation of the defendant’s conduct—voluntary impoverishment—that could 

not be squared with what the evidence showed); see also id. (Farrell, J.,

concurring) (highlighting the importance of permitting the trial court to reconsider 

its order without reliance on a “mistaken understanding”); see also Thanos v. 

District of Columbia, 109 A.3d 1084, 1093-95 (D.C. 2014) (holding that the trial 

court erred in determining that it was without authority to order income 
16

disgorgement as relief, and remanding the case for the trial court to consider anew

whether to order that relief). If, on remand, the trial court determines not to adopt 

the jury’s having credited Mr. Osman’s apartment-for-life claim as its

interpretation of the jury’s answer to Question 7, and if no other plausible 

interpretation is identified, the court in its discretion may order a new trial. The 

trial court may consider whether Osman has forfeited any claim to a judgment in 

his favor where a retrial was the relief he has requested from this court.

For the foregoing reasons, the judgment of the Superior Court is vacated and 

the matter is remanded for further proceedings consistent with this opinion.

So ordered.

MCLEESE, Associate Judge, dissenting: The court vacates the judgment of 

the Superior Court and remands for further proceedings. I would affirm, and I 

therefore respectfully dissent.

The trial court concluded that the jury’s answers to the questions on the 

verdict form were facially unclear but not irreconcilable. The trial court reasoned 

that (1) the final question on the verdict form (asking whether Mr. Osman was 

required to vacate the apartment at issue after his employment terminated) was 

unclear as to timing; and (2) the jury’s negative answer to that question may 

simply have reflected the jury’s conclusion that Mr. Osman was not required to 
17

vacate the apartment immediately after his employment terminated. The trial court 

is required to reconcile apparently inconsistent verdicts if that is reasonably 

possible. District of Columbia v. Tulin, 994 A.2d 788, 798 (D.C. 2010). This 

court owes deference to the trial court’s “broad discretion in attempting to 

harmonize [seemingly] inconsistent answers” on verdict forms. Id. at 799 (internal 

quotation marks omitted). In my view, the trial court did not abuse its broad 

discretion in reconciling the jury’s answers in the way the trial court did.

In holding to the contrary, the court relies on the idea that the jury’s answer 

to the final question may instead have reflected a determination that First Priority 

had promised Mr. Osman that he could live in the apartment for the rest of his life, 

even after he was no longer employed by First Priority. Supra at 10-15. I tend to 

agree that that is another possible way of reconciling the jury’s answers to the 

verdict form. Nevertheless, I would not reverse the trial court on that basis. In 

opposing First Priority’s post-verdict motion for judgment, Mr. Osman did not 

suggest that idea. “[W]e hardly can say that the Superior Court abused its sound 

discretion by failing to consider [an argument] that [Mr. Osman] did not raise.” 

D.C. Metro. Police Dep’t v. Fraternal Ord. of Police/Metro. Police Dep’t Lab. 

Comm., 997 A.2d 65, 74 (D.C. 2010) (citations and internal quotation marks 

omitted).
18

Mr. Osman also did not raise that idea in this court. “We ordinarily do not 

consider points that a party did not squarely present on appeal.” Smith v. United 

States, 306 A.3d 67, 76 (D.C. 2023). I see no adequate reason to depart from our 

ordinary practice in this case. Moreover, on the rare occasions when we have 

departed from that general practice, we have been careful to avoid procedural 

unfairness, by directing supplemental briefing so that the parties have an 

opportunity to address the issue that the court is raising sua sponte. Id. At a 

minimum, the court in my view should direct supplemental briefing before 

reversing the trial court on a ground that was raised neither in the trial court nor in 

this court.

For the foregoing reasons, I respectfully dissent.