North Carolina Lawyers Weekly December 20, 2021

NCLAWYERSWEEKLY.COM VOLUME 33 NUMBER 51 ■

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$3.21M verdict upheld for ex-wife in IIED case ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires

New state budget to benefit Judicial Branch ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com A newly enacted bipartisan state budget contains long-needed new investments for the state’s court system that judicial branch officials believe will help move the state and its judiciary forward.

Officials with the North Carolina Administrative Office of the Courts say that the budget, the largest investment ever in the judicial branch, provides historic, “truly transformative support for state courts.” Over

the next two years, hundreds of millions of dollars will be invested in the judicial system to help address its most pressing needs—saving and creating jobs in the judicial branch, funding an integral information technology infrastructure, and financing innovative court pilot programs.

Besides providing for salary increases and bonuses to existing employees, the budget will allow the court system to beef up its work force by hiring additional, vital per-

officials, alleging that the loans violated Virginia and federal law. U.S. District Judge David Novak denied the tribal officials’ motions to compel arbitration and to dismiss the suit on the grounds of tribal sovereignty and choice-of-law provisions.

Novak did, however, dismiss the RICO Act claims brought against the officials, finding that the stat-

A Cumberland County couple that posted nude photos of the husband’s then-wife on the internet remains on the hook for a $3.21 million jury verdict awarded to the husband’s ex-wife after the North Carolina Court of Appeals ruled that the ex-wife had substantiated valid claims for alienation of affection, intentional infliction of emotional distress (IIED), libel, and unlawful disclosure of private images under the state’s “revenge porn” statute.

Adam Clark and Kimberly Barrett, both officers in the U.S. Army, met at a military training in Virginia in 2016. At the time, Adam was married to Elizabeth Clark, who eventually discovered that her husband was having an affair with Barrett and confronted him about it.

The Clarks executed a separation agreement in 2017 but initially continued to maintain an emotionally and sexually intimate relationship.

During this time, however, Adam and Barrett began what Elizabeth alleged was a secret campaign to harass and humiliate her. Elizabeth discovered ads on Facebook and Craigslist and profiles in chat rooms on Kik (an instant messaging mobile app with features designed to preserve users’ anonymity) that featured her picture and suggested that Elizabeth was soliciting casual sex. Many of these ads also contained derogatory statements about Elizabeth.

Elizabeth sued Adam and Barrett in 2018, leveling claims for IIED, libel, and violations of the revenge porn statute against her ex-husband and claims for IIED and alienation of affection against Barrett.

After a five-day trial in August 2019, the jury was out for only 55 minutes before coming back with the verdict in Elizabeth’s favor. It ordered Barrett to pay a total of $1.2 million, including $450,000 for alienation of affection, $500,000 for intentional infliction of emotional distress, and $250,000 in punitive damages. It ordered Adam to pay a total of $2 million, including $1 million for libel, $500,000 for intentional infliction of emotional distress, and $500,000 in punitive damages.

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See DISTRESS Page 3 ►

Officials with the North Carolina Administrative Office of the Courts say that the budget, the largest investment ever in the judicial branch, provides historic, “truly transformative support for state courts.”

See BUDGET Page 5 ►

4th Circuit: No private right to injunctive relief under RICO ■ BY DAVID DONOVAN david.donovan@nclawyersweekly.com The Racketeer Influenced and Corrupt Organizations Act doesn’t give private plaintiffs a right to sue for injunctive relief, the 4th U.S. Circuit Court of Appeals has unanimously ruled in an issue of first impression that has divided other circuits courts, deepening a

circuit split that may ultimately require resolution from the U.S. Supreme Court.

A group of Virginia consumers who defaulted on short-term, highinterest loans issued by online lenders affiliated with the Habematolel Pomo of Upper Lake, a federally recognized Native American tribe in northern California, brought a putative class action against tribal

INSIDE CASE NEWS

VERDICTS & SETTLEMENTS

COMMENTARY

Man’s estate settles Alaska plane crash suit for $1.5M

Family settles nursing home death case for $4M

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Hazards of informal advice: friends, family and holiday parties Page 4

2 / NEWS State bar announces new specialists for 2021 The following lawyers have met all of the certification requirements and were certified by the North Carolina State Bar Board of Legal Specialization on Dec. 8, according to the board’s website. Results for bankruptcy and child welfare law certifications will be available in the spring of 2022.

Appellate Practice Alex Dale, Wilmington Lorin Lapidus, Winston-Salem Jon Ward, Greensboro D. Martin Warf, Raleigh State Criminal Law Emily Byrum, Wilmington Jonathan Friel, Winston-Salem Rick Hamlett, Nashville Christy Hawkins, Beaufort Janelle Headen, Fayetteville Jennifer Mathews, Lenoir Michael Smith, Rocky Mount Virginia Sullivan, Southern Pines Federal/State Criminal Law Edd Roberts, Raleigh Juvenile Delinquency Criminal Law David Andrews, Durham Veronika Monteleone, Gastonia Elder Law John Potter, Charlotte Estate Planning and Probate Law Erin Bailey, Greensboro Tyler Chriscoe, Raleigh Adam Kerr, Greensboro Family Law Carolyn Bellof, Charlotte Ashley Crowder, Charlotte Brittany Hall, Wilmington Jessica Heffner, Raleigh Hilary Hux, Greensboro Bradley Jones, Morehead City Martha Massie, Greensboro Marion Parsons, Asheville Melanie Phillips, Raleigh Isla Tabrizi, Monroe Commercial Real Property Law James E. Hill, Cayce, South Carolina Jennifer Scott, Wilmington Utilities Law Christina Cress, Raleigh Tim Dodge, Durham Molly Jagannathan, Charlotte Andrea Kells, Raleigh Workers’ Compensation Law Jacalyn Ackerman, Greensboro Christian Ayers, Charlotte Susan Overby, Durham Marcus Spake, Charlotte Anastase Vonsiatsky, Charlotte Benjamin Winikoff, Winston-Salem

Cooper makes four judicial appointments Gov. Roy Cooper has appointed Reggie McKnight to serve as a superior court judge in Judicial District 26E (Mecklenburg County). McKnight will fill the vacant seat created by the retirement of Judge Donnie Hoover.

He had previously served as a district court judge in Mecklenburg County.

Cooper also announced the appointment of three district court judges. Justin Minshew was named a district court judge in District 8A (Greene, Lenoir and Wayne counties).

Minshew will fill the vacant seat formerly held by Judge Ericka James.

He previously served as a clerk of superior court in Wayne County.

Dorothy Hairston Mitchell was named a district court judge in District 14 Durham County). Mitchell will fill the vacant seat formerly held

by Judge Brian Wilks. She is an associate clinical professor and supervising attorney at North Carolina Central University School of Law. Valene McMasters was named a district court judge in District 21 (Forsyth County). McMasters will fill the

N O R T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

vacant seat formerly held by Judge Denise Hartsfield. She is the managing attorney at Legal Aid of North Carolina.

Staff reports

Candidates begin filing for 2022 Supreme Court elections Candidates have begun filing to run for two seats that will be up for election on the state’s Supreme Court next year.

Justices Robin Hudson and Sam Ervin, both Democrats, are completing eight-year terms on the court. Ervin has already filed for re-election.

Hudson, who turns 70 in February, had previously announced that she wouldn’t seek re-election. (State law requires judges and justices to retire once they turn 72.)

Lucy Inman, a Democrat, and Richard Dietz, a Republican, have both filed to run for Hudson’s seat.

Both currently serve on the state’s Court of Appeals.

As Lawyers Weekly went to press, two Republicans, April Wood and Trey Allen, had filed to run for Ervin’s seat. Wood was elected to the Court of Appeals last year. Allen served in private practice before being appointed to serve as general counsel for the North Carolina Administrative Office of the Courts earlier this year.

Staff reports

Jury awards man $6M after finding police fabricated evidence WINSTON-SALEM (AP) — A federal jury has awarded a North Carolina man $6 million after finding that a detective made up evidence and performed an inadequate investigation that led to convictions that sent him to prison for more than 20 years.

The jury in Winston-Salem returned a verdict on Dec. 1 finding that former Durham police detective Darryl Dowdy fabricated evidence in the case and trial that resulted in Darryl Howard being convicted in 1995 of killing a woman and her daughter in 1991.

Howard’s 80-year sentence was cut short in 2016 when a Durham County judge vacated his convictions, citing police and prosecutorial misconduct.

In 2017, Howard filed a federal civil rights lawsuit that accused Dowdy, the city of Durham and others of actions that resulted in Howard being wrongfully convicted.

Howard and one of his attorneys said they were glad the jury recognized Dowdy’s actions but had hoped for a figure much closer to the $48 million in damages they requested.

Dowdy, 65, who denies the accusations in the lawsuit, worked for the Durham Police Department for 36 years before he retired in 2007. His attorney, Nick Ellis, said they accept the jury’s decision but disagree with its conclusions.

Biden’s Supreme Court commission releases final report WASHINGTON (AP) — The commission tasked by President Joe Biden with studying potential changes to the Supreme Court has released its final draft report, a cautious take on proposals for expanding the court and setting possible term limits.

The 36-member bipartisan commis-

BAR DISCIPLINE

ROUNDUP Attorney: H. Bright Lindler Location: Rockingham Bar membership: Member since 1987 Disciplinary action: Disbarred on Dec. 3 Background: Lindler negotiated, on behalf of a client, a proposed workers’ compensation settlement for $2,500.

The client told Lindler that she would not accept a settlement for this amount. Despite this knowledge, Lindler made false representations to the defendant and signe d an agreement accepting that amount on the client’s behalf, and the settlement was approved by the North Carolina Industrial Commission. When Lindler re ceive d the $2, 50 0 from the defendant, he did not notify the client of his receipt of the funds or disburse the funds to the client, and instead

disbursed the entirety of the funds to himself. After the client made an inquiry to the commission, Lindler forwarded copies to his letters to the client to the commission and counsel for the defendants, thus revealing confidential information. Additionally, Linder failed to pay state and federal income taxes over a course of several years, and willfully failed to pay to the IRS funds he was required to withhold from the paychecks of his law firm’s employees.

Previous discipline: None All information contained in the Bar Discipline Roundup is compiled and edited by Lawyers Weekly editor-in-chief David Donovan. He can be reached at david.donovan@nclawyersweekly.com.

LAWYERS IN THE NEWS Paul Holscher has joined Ogletree Deakins as shareholder in the firm’s Raleigh office. Holscher counsels employers on labor and employment law matters and comes to the firm from Jackson Lewis, where he was a principal.

Chris Reinhard has joined Cranfill Sumner as of counsel based in the firm’s Raleigh office. Reinhard’s practice will focus primarily on business transactional and corporate law.

He previously held positions at Cisco Systems and BB&T. Amanda Just has joined Ragsdale Liggett as an associate in the firm’s litigation group in its Raleigh office. Just is an experienced litigator whose practice focuses on litigation defense, particularly in health care, construction, trucking and transportation, and general liability.

Iona L. Chapman and Clark C. Cooper have joined Shumaker as associates in the firm’s Charlotte office. Chapman joins the firm’s wealth strategies service line, and Cooper joins its litigation and disputes service line.

Brett Lawrence has joined Bradley Arant Boult Cummings in the firm’s Charlotte office as an associate.

Lawrence is a member of the firm’s cybersecurity and privacy practice and banking and financial services practice group. He previously clerked for North Carolina Court of Appeals Judge Lucy Inman.

Robinson Bradshaw announced that Grace C. Hearn, Hiromi Hirayama, Michael J. Keskonis, Akya S. Rice, Heather Heath Ryan, Hana M. Crandall, Emma T. Kutteh, Marisa E. Mariencheck, Caroline H. Reinwald, Camila M. Rohena-Maldonado, Thain D. Simon, Elizabeth C. Smith, and M. Bennett Wright have all recently joined the firm. Reinwald and Smith work in the Research Triangle, and all the other attorneys in Charlotte.

Smith Anderson in Raleigh announced that Lindsay Avagliano, Jonathan Bass, Andrew Benton, Lauren Davis, T.G. Falcon, Eric Fisher, Dawson Kirkland, Deborah McDermott, Mark Rothrock, and James Todd all joined the firm in the third quarter of 2021.

King & Spalding announced that Chelsea Corey, Aleksandra Kopec, and Jared Zajac in the firm’s Charlotte office have all been promoted to partner.

Haynsworth Sinkler Boyd, a law firm based in Greenville, South Carolina, announced that it has opened its first office in North Carolina, in Raleigh. William C. McKinney, who rejoined the firm last summer after serving as general counsel to the Governor of North Carolina, will serve as lead office partner. McKinney focuses his practice in the areas of state and local government, economic development, and business litigation.

sion was not charged with making recommendations under the White House order that created it. As a result, much of the final report from the group, largely composed of academics who have been studying court reform and holding hearings, is context and history that may be used going forward in proposals to introduce changes.

The panel, led by Bob Bauer, who served as White House counsel for former President Barack Obama, and Cristina Rodriguez, a Yale Law School professor who served in the Office of Legal Counsel for Obama, cautioned that excessive change could potentially erode democracy further down the line.

“Indeed, in recent years, we have

seen democratic governments ‘regress’ or ‘backslide’ with respect to judicial independence,” the court wrote in its report. “This has come about through electoral majorities using their power to restructure previously independent institutions, including courts, to favor the political agendas of those governments.”

The makeup of the Supreme Court has come into even sharper focus following a ban on abortions after six weeks in Texas and arguments last week on a Mississippi case in which the 6-3 conservative-leaning court signaled a willingness either to overturn or substantially roll back abortion rights See NEWS IN BRIEF Page 5 ►

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Man’s estate settles Alaska plane crash suit for $1.5M ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com The estate of a North Carolina man who was killed when the plane he was on crashed into an Alaskan mountain has settled its wrongful death claim for $1.5 million, his attorneys report.

Benjamin Bridges III of Salisbury, John TanJohn Tantum tum of Cedar Point, and David Gross of Anchorage, Alaska represented the estate Robert Cartner of Concord, who died at the age of 53. Tantum said that Cartner was a flight nurse working in Alaska and was aboard a Piper Navajo twin-engine plane that took off shortly twilight on Nov. 29, 2019 and was circling in a “racetrack formation” before crashing into the mountain.

Tantum said that the formation may have been an attempt to avoid bad weather and lower the plane’s altitude and that while the final Federal Aviation Administration report hasn’t been released, an expert witness was ready to conclude that the crash was caused by pilot error and the flight never should have been attempted because of darkness and unsettled weather.

“The liability was hotly contested by the Defendant,” Tantum wrote. “At the time of settlement, the FAA had done an internal investigation, but it had not determined the cause of the crash and the State of Alaska does not recognize the doctrine of res ipsa loquitor when it comes to airplane crashes.”

Tantum said that a few weeks before the crash, defendant Security Aviation, which owned the aircraft, had voluntarily chosen to reduce its liability insurance coverage from at least $5 million per passenger to just $1 million per passenger.

In a Sept. 21 settlement, Security Aviation and its carrier agreed to pay $1,332,000 to Cartner’s wife.

Cartner’s stepdaughter is receiving workers’ compensation benefits that had been set to expire early next year, the lawyers said. Under Alaska law, the workers’ compensation carrier was entitled to recover 100 percent of its payments, but it agreed in the settlement to waive their lien for benefits of $110,075 and contribute another $68,000, Tantum said.

The mediator in the case, a retired Alaska Supreme Court justice, proposed the agreed-upon settlement terms, emphasizing the likely delay of a trial because of the backlog caused by COVID-19.

Tantum said that a few weeks before the crash, defendant Security Aviation, which owned the aircraft, had voluntarily chosen to reduce its liability insurance coverage from at least $5 million per passenger to just $1 million per passenger.

“Apparently, no cases have been tried for the last two years because of the pandemic, and this case would have been put on the backburner for some time if it had been filed,” Tantum wrote.

Tantum said that non-economic losses in Alaska are capped at $400,000.

“Alaska also provides that Defendant could have been responsible for as much as $100,000 in Plaintiff’s attorney fees if the case had proceeded to trial and a Judgment had been rendered for the Plaintiff,” Tantum wrote.

The defendant’s counsel, Vicki Paddock of Meshke Paddock & Budzinski of Anchorage, did not respond to a request for comment.

Follow Heath Hamacher on Twitter @NCLWHamacher

Family settles nursing home death case for $4M ■ BY DAVID BAUGHER The family of a man who died after he fell while at a North Carolina nursing home has settled a lawsuit against the nursing home for $4 million, the family’s attorneys report.

Rachel A. Fuerst, Carma Henson and Thomas Henson Jr. of Henson Fuerst in Raleigh and John Green and Alex Hall of Hall & Green in Wilmington report that the man was at the facility for a “very brief period of time,” during which he suffered a fall after which he was sent back to the hospital which diagnosed him with a serious head injury. The family contended that the death was a result of his fall-related injuries and alleged that “serious administrative failures” in the facility’s management led to the incident.

The identities of the plaintiffs and defendants as well as various details of

the case were withheld due to confidentiality requirements.

The Henson Fuerst attorneys provided a written statement saying that punitive damages were an issue in the case and dozens of depositions were taken in the matter, including those of treating healthcare providers employed at the facility.

Experts identified by the plaintiff included authorities in nursing and nursing administration as well as nursing home care, electronic records, neurosurgery and forensic economics.

The defendants denied both liability and any breach of duty in his care and argued that the man’s own actions had contributed to his death. Court-ordered mediation early in the litigation was not successful, but the lawsuit was later settled without a mediator, the statement said.

SETTLEMENT REPORT — NURSING HOME

Amount: $4 million Injuries alleged: Wrongful death Case name: Confidential Venue: Confidential Date of settlement: September 2021 Attorneys for plaintiff: Rachel A. Fuerst, Carma Henson and Thomas Henson Jr. of Henson Fuerst in Raleigh and John Green and Alex Hall of Hall & Green in Wilmington Attorneys for defendants: Confidential

DISTRESS / Couple posted nude photos in fake personal ads Judge Mary Ann Talley also awarded Elizabeth $10,000 in liquidated damages allowed under North Carolina’s so-called “revenge porn” statute for disclosure of private images.

Both Adam and Barrett appealed.

Writing for unanimous panels in separate opinions published on Dec. 17, Judge April Wood affirmed all of the jury’s verdicts.

The common thread in the two appeals was Elizabeth’s claims for IIED. Wood wrote that these claims had been properly submitted to the jury because Elizabeth had presented at least a scintilla of evidence that both Adam and Barrett had engaged in extreme and outrageous conduct, and that Elizabeth had suffered severe suffered severe emotional distress as a result.

“Viewing the evidence in the light most favorable to Plaintiff, and taking that evidence as true, the evidence tends to show that Defendant Clark began harassing and stalking Plaintiff after the date of separation; frightened Plaintiff by stating, ‘We are going to continue doing everything in our power to make your life miserable’; and humiliated Plaintiff by posting advertisements and photographs of Plaintiff online, containing Plaintiff’s personal information,” Wood wrote, saying that this was

sufficient to provide evidence of both outrageous conduct and causation of the symptoms Elizabeth experienced.

Wood also found that there was sufficient evidence that Adam published the internet postings in question, as both of the photographs used in the postings were in his sole possession. Also, when Elizabeth attempted to get access to the login information for the address used to post the ad on Craigslist, she discovered that the recovery email was Adam’s personal email address.

Barrett, meanwhile, argued that alienation of affection is a transitory tort and that Elizabeth was not injured in North Carolina. But Wood said Elizabeth presented more than “a scintilla of evidence” that the alienation of Adam’s affection did occur in state—at the time he met Barrett, Elizabeth lived in North Carolina and she discovered text messages between the defendants while in the marital home, including a sexually explicit photograph Adam sent Barrett from the home.

“Further, although Barrett invoked her Fifth Amendment right whenever questioned about her sexual activity with [Adam] in North Carolina, ‘the finder of fact in a civil case may use a witness’s invocation of his fifth amendment privilege

against self-incrimination to infer that his truthful testimony would have been unfavorable to him,’” Wood wrote.

Nor was Wood persuaded by Barrett’s argument that Elizabeth and Adam’s marriage was unhappy from the start and there was no affection between them.

Elizabeth was only required to present “very slight evidence” of some love and affection, Wood explained, and she did, testifying that Adam visited Elizabeth on weekends, the couple texted and called each other often, Adam frequently said “I love you” and they continued to have sexual relations.

Other various arguments made by the defendants were also rejected by the court.

Michael R. Porter and R. Jonathan Charleston of Fayetteville represented Elizabeth. Jeffrey R. Russell of Tharrington Smith in Raleigh represented both defendants. None of the attorneys responded to requests for comment on the court’s ruling.

The decisions are both captioned Clark v. Clark and are Lawyers Weekly Nos. 011-237-21 (32 pages) and 011-238-21 (29 pages). The full text of the opinions is available online at nclawyersweekly.com.

Elizabeth was only required to present “very slight evidence” of some love and affection, Wood explained, and she did, testifying that Adam visited Elizabeth on weekends, the couple texted and called each other often, Adam frequently said “I love you” and they continued to have sexual relations.

4 / NEWS

N O R T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

Hazards of informal advice: friends, family and holiday parties ■ BY ERIN K. HIGGINS AND J.P. CHRISTIAN MILDE There is a well-worn joke about a lawyer who runs into an old acquaintance on the street. “I’m so glad to see you!” the friend exclaims. “I’m in terrible trouble—can I ask you a couple of questions?” “Of course,” replies the lawyer. “What’s your second question?”

Underlying this old chestnut is a kernel of truth, because most lawyers recognize the dangers of dispensing informal legal advice. For newer lawyers, it may seem only polite to give a friend or family member a few minutes of advice, or to chat casually with a current client about an unrelated issue, but there is peril in such informal exchanges, and lawyers should be mindful of the risks.

Conflicts and disqualification

The most cited risk is that a lawyer at a firm will unwittingly create a conflict. The classic example is the young associate whose friend asks for guidance about a dispute with a third party, such as a landlord, employer or service provider. The associate, eager to be helpful, does not run a conflict check but points the friend to the relevant statute and explains its meaning.

As luck would have it, the friend turns out to be adverse to a current client of the firm. This scenario is sure to end poorly for the associate, and it may also injure an existing client relationship at the firm or scuttle a contemplated representation.

Now suppose that the advice the associate provides to her friend concerns an employment issue, and, unbeknownst to the associate, the friend’s new employer is a client of the firm. Thereafter, the friend retains counsel and sues the employer. When the employer asks its own counsel (the associate’s firm) to mount a defense, the plaintiff’s lawyer successfully moves to disqualify the firm from representing its longtime client because the associate (and thus the firm) previously advised the plaintiff about the matter.

The possibility of a conflict is magnified by situations involving entities, associations and agency relationships. An attorney might chat with a friend whose tech startup is at odds with the management company that runs the startup’s rented office space.

Even knowing the name of the management company, the attorney could easily miss that the building is owned by a client of the firm.

Bad advice

Friends asking for free, off-the-cuff legal advice are likely to get what they have paid for. Well-intentioned lawyers may do their best to qualify informal advice with statements like “you should ask a specialist, but...” or “without the benefit of research, I would think that...”

But even sophisticated laypeople are unlikely to fully appreciate such caveats. A lawyer advising a friend or family member also may lack the objectivity necessary to give good counsel. Further, even if a lawyer manages to give advice that is correct and complete at the moment, without the lawyer’s continued involvement, that advice may become bad advice as the situation develops or new facts are discovered.

The danger of off-the-cuff advice is not constrained to friends and family.

When a client calls and asks a pressing question at an inopportune time, or throws out an unrelated inquiry during a scheduled call, it invites a lawyer to respond immediately without getting the whole story or doing the necessary research.

Answering a pressing question with “the answer is probably X, but we should meet and discuss,” may be an invitation for clients who want immediate answers to assume that they have received definitive advice.

For this reason, lawyers should never provide partial advice or educated guesses. Instead, schedule time with the client to discuss the new issue, and make sure you have all the facts.

Unintended clients

Informally advising non-clients may lead them to believe that an attorney-client relationship has been formed, or that one may be formed in the future.

Generally, a person’s reasonable, subjective belief that he or she has formed a relationship with a lawyer is adequate to create an attorney-client relationship for purposes of legal ethics, and ambiguous circumstances will usually be interpreted in favor of a putative client.

Consider a hypothetical lawyer who chats at a dinner party with an acquaintance who recently slipped and fell at a garage and is considering a lawsuit against the garage’s owner and management company. The lawyer cautions the acquaintance to seek representation soon, commenting that the limitation period for personal injury actions is three years.

The acquaintance relies on that statement in delaying the retention of counsel and ultimately discovered that the suit is time-barred because the property in question was owned and managed by the federal government and a notice of claim was not timely presented.

The initial lawyer was not intending to provide legal advice but could have exposure to a malpractice suit.

Confidentiality problems

Model Rule of Professional Conduct 1.6 requires that lawyers keep clients’ confidences, and Model Rule 1.18 requires that lawyers do the same for prospective clients (meaning any person who consults the lawyer about the possibility of forming an attorney-client relationship).

When advising friends informally, it can be difficult to draw the line on when an attorney-client relationship is formed, and when confidential information is being received.

Imagine, for example, a lawyer commiserates with a friend about the friend’s marital difficulties, and the friend admits to having an affair. The friend also asks the lawyer for advice about how to protect her assets.

The lawyer, distraught by the revelation of an affair, confides in a mutual acquaintance. The mutual acquaintance discloses the information to the friend’s spouse, who immediately files for divorce.

The friend later may contend that she went to the first lawyer for legal advice and that the lawyer breached her obligation to maintain their conversation in confidence.

Unauthorized practice of law

A final concern is that lawyers giving informal advice to friends in other states may inadvertently engage in the unauthorized practice of law in violation of Model Rule 5.5.

Rule 5.5(c) does allow lawyers to provide services outside of their jurisdictions on a temporary basis, but—in the absence of local co-counsel or a relationship to an ongoing matter—such services are only permissible if “reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.”

As such, advice given outside of a regular client relationship to a friend in another state could pose a hazard, especially when the advice is also outside the lawyer’s regular practice area.

What should a careful lawyer do?

Warnings against dispensing informal legal advice are nothing new, but the reality is that declining to discuss a friend’s legal issues can be hard. To handle inquiries without being seen as rude or unhelpful, lawyers should consider the following maxims when asked for advice, opinions or information about the law: Explain that you would never want to give incomplete or incorrect guidance.

If appropriate, offer to arrange a formal intake meeting at your firm (after a conflict check) so that you can dedicate the necessary time and resources to the inquiry.

If the asker insists that they do not need a lawyer but “just a little information,” offer resources instead of specific information. For example, if asked about eviction procedures, do not explain the timing of an eviction action, but instead send a link to a resource on tenants’ rights.

If you are in a situation in which you decide that you cannot avoid providing some advice, provide it only in a generalized fashion. For example, instead of telling a friend that they have three years to file a tort claim, tell them that generally the statute of limitations on tort claims is three years, but specific circumstances could involve shorter notice periods, and you cannot advise them specifically.

If the questions continue, send the asker an email clarifying that you are not their lawyer, reinforcing that nothing you have said is legal advice, and offering to schedule a formal consultation or make a referral, as appropriate.

Promptly send letters declining all explicit requests for representation that you do not wish to accept, even if the requests are informal.

Conclusion

Next time someone wants to “ask you a couple of questions,” resist the urge to jump in and start trying to help. Remind yourself that both you and the asker will be better served if you take a step back and make a referral or suggest a scheduled call or meeting to thoroughly vet the issue.

Erin K. Higgins is a partner, and J.P. Christian Milde is an associate, at Boston’s Conn, Kavanaugh, Rosenthal, Peisch & Ford, where they advise and defend lawyers and law firms as to liability and ethics issues.

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RICO / 4th Circuit’s ruling deepens existing circuit split ute didn’t authorize private plaintiffs to sue for injunctive relief. In a Nov. 16 opinion written by Allison Jones Rushing, the 4th Circuit affirmed each of these rulings, including the dismissal of the RICO Act claims, which presented a novel question for the 4th Circuit.

The other circuits that have considered this question had been evenly split, with the 2nd and 7th Circuits finding that equitable relief is available to private plaintiffs and the 5th and 9th Circuits finding the opposite.

Rushing noted that the RICO Act, also known as Section 1964, empowers district courts to employ a wide range of equitable remedies to prevent violations of its substantive provisions. The subsection that authorizes the Attorney General to institute proceedings under this statute references these remedial powers, but—crucially, in Rushing’s

reading of the statute—the subsection allowing private litigants to sue for monetary relief under the statute makes no such mention of injunctive or declaratory relief.

“By authorizing the government to ‘institute proceedings under’ Section 1964 and not giving private plaintiffs the same authority, Congress expressed its intent to withhold from private plaintiffs the ability to invoke the injunctive power granted to the courts in Section 1964(a),” Rushing wrote.

“Of course, that subsection also does not expressly limit private plaintiffs to the treble damages and costs authorized there. But Congress’s use of significantly different language to create the governmental right of action in Section 1964(b) and the private right of action in Section 1964(c) compels us to conclude by negative implication that,

although the government may sue for prospective relief, private plaintiffs may sue only for treble damages and costs.”

Rushing rejected the plaintiffs’ invitation to draw an analogy between the RICO Act and the Clayton Act, a federal antitrust statute upon which the RICO Act was modeled. The U.S. Supreme Court regularly treats the remedial sections of the two statutes identically, regardless of “superficial differences” in language.

But Rushing said that, in this instance, the differences between the two statutes were far from superficial since the Clayton Act explicitly provides that private parties “shall be entitled to sue for and have injunctive relief” against loss or damage threatened by a violation of the antitrust laws, a provision that has no analogue in the RICO Act. The analogy thus weakened the

plaintiffs’ argument rather than strengthened it.

“That Congress provided private antitrust plaintiffs a separate right to prospective injunctive relief under a materially similar remedial structure confirms that RICO, by lacking that separate provision, also lacks the separate right,” Rushing wrote.

Rakesh Kilaru of Wilkinson Stekloff in Washington, D.C. and Matthew E. Price of Jenner & Block in Washington, D.C. represented the tribal officials. Matt Wessler of Gupta Wessler in Washington, D.C. represented the borrowers. None of the attorneys responded to calls seeking comment on the court’s ruling.

The 57-page opinion is Hengle v.

Treppa (Lawyers Weekly No. 001-19021). The full text of the opinion is available online at nclawyersweekly.com.

Follow David Donovan on Twitter @NCLWDonovan

BUDGET / Money for move to digital

NEWS IN BRIEF /

sonnel including deputy clerks, Guardian ad Litem advocates, magistrates, judges, and more business court, clerk, and commission staff positions.

“It invests in our personnel, our people here in the Judicial Branch, and allowed the Branch to retain hundreds of employees essential to fulfilling the Branch’s constitutional mandate to keep courts open to administer justice,” NCAOC deputy director Ryan Boyce said.

Around $140 million will go toward constructing at least two new courthouses and renovating and repairing others. Counties statewide will be able to invest in everything from upgrading HVAC systems to adding new space, Boyce said.

“In some of these middle-size counties you may have a couple of people in the courthouse, you may have an annex across the street,” Boyce said. “I know there’s at least one county where the DAs are in an old home somewhere near the courthouse square. Hopefully this will … bring everybody together under one roof in a workable environment they can be proud of.”

Chief Justice Paul Newby said that the resources will keep courts open and help reduce a significant case backlog created in large part by the COVID-19 pandemic.

“The budget provides the funding needed to deliver improvements for countless North Carolinians who depend on our courts,” Newby wrote in a press release. “It will help us fulfill our constitutional mandate of open courts that administer justice without favor, denial, or delay.”

Improving technology was another top priority for the NCAOC. Newby said that while “not quite as bad as cavemen chiseling on stone,” the state’s current filing system is inefficient and antiquated, paper-based and backed up on 1980s-style mainframes.

Now, files can be moved from boxes in basements and attics to a cloud-based platform as the branch transitions to eCourts, a comprehensive, integrated case management system that will allow for more efficient court operations and day and night access to the courts.

Boyce said that the incorporation of criminal, civil, and financial systems will prove gainful and that remote access to the courts will benefit everyone from small business owners looking to conveniently file a claim to domestic violence victims who may not want to risk seeing their abuser at the courthouse.

“Moving everything digital will remove the burden for a lot of people and just make the whole process more efficient,” Boyce said.

Stakeholders across the judicial system found other reasons for cheer in the new budget. The Conference of District Attorneys was facing a potential hardship after learning last year that its federally funded Victims of Crime Act grants wouldn’t be renewed. The conference’s legislative liaison, Chuck Spahos, said that the loss of victim services would mean losing 150 positions of those who directly contact and impact crime victims.

“One of the challenges we’ve always had with those positions is the fact that every two years we’d have to ask for renewed funding,” Spahos said. “I

enshrined in the 1973 Roe v. Wade decision and its 1992 ruling in Planned Parenthood v. Casey, which reaffirmed Roe. A decision isn’t expected for months.

The commission’s review was a campaign promise Biden made in response to pressure from activists and Democrats after the court’s composition tilted sharply to the right during former President Donald Trump’s term. He’s largely avoided the topic since.

During the presidential campaign Biden repeatedly sidestepped questions on expanding the court, and he hasn’t said if he supports adding seats or making other changes, including imposing term limits. White House press secretary Jen Psaki said she had no timeline for how long it would take for Biden to review the report or what happens next.

“It’s not recommendations that he either accepts or denies,” she said. “He asked this diverse group of experts from a range — from across the political spectrum, from across the viewpoint spectrum — to look at and assess a range of issues that have long been discussed and debated by court experts.”

Trump nominated three justices to the high court, giving it the 6-3 conservative majority.

Democrats were especially frustrated that the Republican-led Senate kept Obama from filling the seat left empty by the death of conservative Justice Antonin Scalia in February 2016. Then, with Trump in office, the Senate pushed to confirm Justice Amy Coney Barrett to the court following the death of liberal Justice Ruth Bader Ginsburg in September 2020, weeks before the election.

That led to calls by some progressives for changes, including adding seats to the court or setting term limits. Congress originally set the number of justices at six. The number has been nine since 1869.

An earlier report by the panel spoke positively of the potential for term limits for justices.

The final report builds on this, devoting a section to exploring the potential avenues to set term limits, discussing the possibility of justices retiring and also of allowing them a significant term before returning to their lower court.

“Mirroring the broader public debate, there is profound disagreement among commissioners on these issues. We present the arguments in order to fulfill our charge to provide a complete account of the contemporary court reform debate,” the report says.

It also substantially discusses the court’s role in the constitutional system, judicial ethics and whether the court should change its operations to be more public friendly. It specifically addresses the use of audio or video streaming of oral arguments, acknowledging while justices are largely opposed to video, audio streaming that began during the coronavirus pandemic could be a way to enable the public to better follow how it operates.

certainly want to thank … the legislative leadership for … making sure those positions became permanently funded.”

Spahos is also inspired by the opportunity not only to bring on additional assistant district attorneys, but to retain veteran ADAs who can best help clear the court backlog of serious, complicated cases. He said that plea agreements happen only when prosecutors know they can try the cases and defendants know that they will.

“Having sufficient experienced prosecutors that can have access to the court time to try those cases is what gets those serious cases disposed of,” Spahos said.

The North Carolina Lawyers Education Assistance Fund, meanwhile, has sought for more than 30 years to ease the financial burden of public interest attorneys by offering law school tuition repayment assistance. The agency cites student loan debt as the overwhelming reason attorneys decline or depart from positions as public defenders or prosecutors.

Grant funding for the program has historically ebbed and flowed, LEAF Executive Director Katherine Asaro said. But for the next two years, at least, “immeasurably beneficial” budget money will ensure that many more public interest attorneys are able to continue helping people who couldn’t otherwise afford it.

“They are true public servants. They made the decision to give up on certain things to serve the citizens of North Carolina,” Asaro said. “That’s a true organic thing, that dedication, and if we can make their lives a little easier … we’re in a perfect position to do it.”

In anticipation of the new funds, the Indigent Defense Services Commission voted in October to increase rates for privately assigned counsel (PAC), something it has worked toward since being forced to reduce rates a decade ago. The increase will not restore compensation to where it was before 2011, even before adjusting for inflation, but at least brings it closer.

The new PAC fund is projected to contain $6.8 million, and new hourly compensation rates will become effective Jan. 1. District court rates will increase from $55 to $65, according to the commission, which has listed all applicable hourly rates on its website. Dorothy Hairston Mitchell, chair of the IDS Commission, wrote in a press release that the commission carefully considered how to best allocate the money and is seeking recurring funding that will reflect the value of work performed by PAC. Newby said that while the budget is imperfect, it is overdue and necessary. “On balance,” Newby said, “the good outweighs the bad.”

Changes and implementations will not occur overnight, of course, but after years without a comprehensive budget in place, hopes are high.

“I’m just grateful,” Asaro said. “We haven’t been in a position to help so many people for so long—it’s a huge difference.”

Follow Heath Hamacher on Twitter @NCLWHamacher

6 / OPINION DIGESTS

Opinions

N.C. COURT OF APPEALS

6

N.C. COURT OF APPEALS

Tort/Negligence IIED & Alienation of Affection – Punitive Damages – Post-Separation Sex – Lay Witness – Device Copying The plaintiff-wife sued defendant Barrett for both intentional infliction of emotional distress (IIED) and alienation of affection. The trial court instructed the jury on punitive damages for the IIED claim. Contrary to Barrett’s contention, there is no requirement of pre-separation sexual intercourse to recover punitive damages for IIED. We affirm judgment for plaintiff.

Plaintiff was married to defendant Clark, an Army officer. Defendant began an affair with defendant Barrett, also an Army officer. Clark and Barrett conceived a child and now live together in a house built on land that

N.C. BUSINESS COURT

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N.C. COURT OF APPEALS UNPUBLISHED

Clark and plaintiff bought together.

Defendants also posted plaintiff’s photographs on the internet, along with statements that she was soliciting sex.

IIED Even though a missed deadline prevented plaintiff from presenting expert witnesses, Derek Ellington could testify about copying plaintiff’s electronic devices. Ellington testified, not as an expert, but as a lay witness. He testified as to what he “saw or experienced” in creating copies of plaintiff’s devices and accounts. He did not interpret or assess the devices or accounts but explained the process he used for plaintiff’s devices was one that he did daily.

In any event, Ellington’s testimony was not pivotal in determining whether defendants posted a photo of plaintiff’s nude breasts on the internet; rather, he corroborated plaintiff’s testimony that she sent the topless photo to defendant Clark.

While defendant Barrett contends that plaintiff’s IIED claim should

not have been submitted to a jury because it was subsumed by other causes of action, defendant Barrett did not raise the defense of election of remedies at trial or in her post-trial motion. Therefore, she may not raise this argument on appeal.

Even though plaintiff did not attend counseling for fear that such treatment would negatively affect the likelihood of her maintaining shared custody of her children, there was more than a scintilla of evidence that she suffered severe emotional distress as the result of defendants’ conduct.

Such evidence includes plaintiff’s testimony that she cried hysterically, hyperventilated and sought a counselor in response to defendants’ conduct, as well as a friend’s testimony that plaintiff was “very emotionally distraught and crying” and that plaintiff experienced anxiety.

Plaintiff also showed a causal link between Barrett’s conduct and plaintiff’s emotional harm. Plaintiff testified her emotional distress was caused by defendants messaging her

14

that they would do “everything in [their] power to make [her] life miserable” and by discovering fake “Liz Clark” Kik profiles, which used a photo of plaintiff as a profile picture and which solicited “no strings attached” sexual intercourse.

Viewed in the light most favorable to plaintiff, the evidence tends to show that Barrett began a sexual relationship with Clark while he was married to plaintiff; conceived a child with Clark while plaintiff and Clark were attempting reconciliation; and sent at least one email to plaintiff in which Barrett told plaintiff she “was a bad mother, that [she was] uneducated ... [she] was a bad wife,” and that plaintiff came “from an unsuccessful family.” Further, both Barrett and plaintiff testified that Barrett resided with Clark and had access to the computer from which degrading messages were sent to plaintiff. As plaintiff presented more than a scintilla of evidence of “extreme and outrageous behavior,” the trial court did not err in denying Barrett’s motion for judg-

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OPINION DIGESTS / 7

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Decem ber 20, 2021

ment notwithstanding the verdict.

Alienation of Affection Plaintiff presented more than a scintilla of evidence that the alienation of Clark’s affection occurred in North Carolina. At the time defendants met, plaintiff resided in the couple’s marital home in North Carolina; plaintiff discovered text messages between defendants while Clark was in the couple’s marital home; and plaintiff testified to a sexually explicit photograph Clark sent Barrett from the couple’s marital home. Further, although Barrett invoked her Fifth Amendment right whenever questioned about her sexual activity with Clark in North Carolina, the finder of fact in a civil case may use a witness’s invocation of his Fifth Amendment privilege against self-incrimination to infer that his truthful testimony would have been unfavorable to him.

Plaintiff thus presented more than a scintilla of evidence that the tortious injury occurred in North Carolina.

Even though Clark testified that he did not love his wife, a plaintiff need only present very slight evidence of some love and affection to survive a motion for JNOV. Here, plaintiff met her burden with testimony about her and Clark’s attempts to see one another while he was away on assignment, about their affectionate text messages and telephone calls, and about their continued marital relations even after Clark left the marital home.

Plaintiff further testified that Clark’s behavior began to change after he met Barrett and that Barrett knew Clark was married, yet Barrett chose to carry on a sexual relationship and conceive a child through in vitro fertilization with Clark. Defendants spoke on the phone, texted, and sent at least one sexually explicit photograph. Plaintiff presented more than a scintilla of evidence regarding the malicious or wrongful alienation of affection.

Punitive Damages Barrett further contends the trial court erred in denying her post-trial motion where the trial court declined to instruct the jury on punitive damages for the alienation of affection claim. The trial court, here, instructed the jury regarding punitive damages for plaintiff’s IIED claim. The trial court did not instruct the jury on punitive damages in connection with alienation of affection, because, under Oddo v. Presser, 358 N.C. 128, 592 S.E.2d 195 (2004), there must be proof of sexual relations before the date of physical separation for punitive damages. Contrary to Barrett’s contention, there is no requirement of pre-separation sexual intercourse to recover punitive damages for IIED. Affirmed.

Clark v. Clark (Lawyers Weekly No. 011-237-21, 32 pp.) (April Wood, J.) Appealed from Cumberland County Superior Court (Mary Ann Tally, J.) Jose Coker, Jonathan Charleston and Michael Porter for plaintiff; Jeffrey Russell and Evan Horwitz for defendant Barrett. 2021-NCCOA-653

Tort/Negligence IIED & Libel – Publication – Craigslist & Facebook Ads Where plaintiff found the libelous Craigslist ad posted by defendant Clark, presumably others could find it, too. Plaintiff sufficiently showed defendant had “published” the Craigslist ad.

We affirm judgment for plaintiff.

Plaintiff and defendant Clark were

married. Clark began an affair with defendant Barrett. Thereafter, Clark posted a private photograph of plaintiff online and also made fake and false postings purportedly by and about plaintiff.

A jury found Clark liable for unlawful disclosure of private images under the “revenge porn” statute, intentional infliction of emotional distress (IIED) and libel.

IIED Causation Clark argues plaintiff failed to show his conduct caused plaintiff severe emotional distress because plaintiff experienced “stroke-like symptoms” and was diagnosed with “migraines and stress” prior to the complained of conduct to support her IIED claim. While the trial court noted plaintiff’s emotional distress included “stroke-like symptoms,” it did not solely rely on such symptoms in finding plaintiff produced evidence of severe emotional distress. Specifically, the trial court noted, “that Defendant Clark’s conduct did cause severe emotional distress to Plaintiff in the form of anxiety and also physical manifestations, including stroke like symptoms.”

Plaintiff presented evidence that Clark acted with a disregard to plaintiff’s emotional state and that there was a high possibility of emotional distress in that Clark posed as “Brian Bragg” and engaged in “long-term electronic harassment of ... Plaintiff to include, among other thing, calling the Plaintiff disparaging names, including ‘whore’ and ‘white trash’ ”; Clark created a fake Kik profile and posed as plaintiff, causing the profile to become a member in various chat rooms intended for “no strings attached sex”; and Clark put up libelous social media postings about plaintiff on Craigslist and Facebook.

Plaintiff experienced anxiety, hyperventilation, and other emotional distress as a result of defendants’ conduct. Plaintiff testified this was caused by defendants messaging her that they would do “everything in [their] power to make [her] life miserable” and by discovering fake “Liz Clark” Kik profiles soliciting “no strings attached” sexual intercourse.

Accordingly, we hold there was more than a scintilla of evidence to find a causal link between the complained of conduct and plaintiff’s emotional distress.

Outrageous Conduct In the light most favorable to plaintiff, the evidence tends to show that Clark began harassing and stalking plaintiff after they separated; frightened plaintiff by stating, “We are going to continue doing everything in our power to make your life miserable”; and humiliated plaintiff by posting advertisements and photographs of plaintiff online, containing plaintiff’s personal information.

Thus, the trial court did not err in denying Clark’s motion for judgment notwithstanding the verdict, as plaintiff presented more than a scintilla of evidence of extreme and outrageous behavior.

Libel There are two libelous electronic social media postings at issue: A Craigslist advertisement said, “Liz is super hot! Shows you what plastic surgeons and eating disorders can do for you in 2018. There’s a reason she’s been divorced twice and can’t take care of her kids. She’s a plaything, nothing more.

Hope you fellas are wearing condoms, she’s got herpes.” A Facebook “weight loss” advertisement used plaintiff’s post-pregnancy photo next to a photograph of plaintiff’s nude breasts.

Craigslist is a website in which individuals can post personal advertisements for third-party viewing.

Plaintiff testified she discovered the Craigslist advertisement, and presumably, other individuals observed the personal advertisement as well.

Thus, there was sufficient evidence that the Craigslist advertisement was published.

Plaintiff further testified that she responded to the Craigslist ad online with an insulting message directed at Clark. Clark, in response, text messaged a picture of plaintiff’s message, inquiring as to why she had sent him such a message. From Clark’s response, plaintiff was able to see that the “poster” of the personal ad used the email “elizabethclark0403.”

Plaintiff attempted to log into this email account by “recovering” the login information. Upon doing so, plaintiff discovered the “recovery email” for “elizabethclark0403” was Clark’s personal email address. Therefore, there was more than a scintilla of evidence that Clark published the Craigslist advertisement.

Plaintiff testified a third party sent plaintiff the Facebook advertisement, establishing that the ad was indeed published. Plaintiff further testified that both photographs used in the advertisement were in the sole possession of Clark. Further, “Brian Bragg” mentioned plaintiff’s post-pregnancy photographs and that he would “make sure to find” such photographs shortly before the Facebook advertisement was posted. As plaintiff presented more than a scintilla of evidence that Clark published the Facebook advertisement, we find no error.

Revenge Porn Clark argues that the issue of revenge porn should not have been submitted to the jury, because the Facebook “weight loss” advertisement had a star emoji covering one of plaintiff’s nipples and did not violate the “revenge porn” statute or Facebook’s “Community Standards.” However, Clark ignores that the topless photograph that appeared on Facebook with a star is the same photograph shared through Kik, sans star emoji.

There was sufficient evidence as to each element contained within the “revenge porn” statute, G.S. § 14190.5A such that the trial court did not err in submitting the issue to the jury.

Affirmed.

Clark v. Clark (Lawyers Weekly No. 011-238-21, 29 pp.) (April Wood, J.) Appealed from Cumberland County Superior Court (Mary Ann Tally, J.) Michael Porter, Jose Coker and Jonathan Charleston for plaintiff; Jeffrey Russell and Evan Horwitz for defendant Clark. 2021-NCCOA-652

Domestic Relations Parent & Child – Neglect Adjudication – Hyperbolic Texts – Depression – Pandemic Isolation During the isolation of the pandemic, while she was suffering from severe depression and sleep deprivation, the respondent-mother sent a friend several hyperbolic texts threatening her two-year-old son, “Riley.” The trial court’s findings of fact regarding the alleged “injurious environment” are limited to those regarding respondent’s mental health.

The trial court made no factual findings regarding any prior harm Riley suffered, nor did it make any findings regarding a substantial risk of harm.

We reverse the adjudication of ne-

glect and dependency. We remand to the trial court for additional findings of fact to support the trial court’s finding of neglect or for the trial court to dismiss the petition in the absence of such findings.

Where both parties to the texts testified that the texts were not meant literally when sent nor taken literally when received, we decline to hold that the text messages respondent sent to her friend, Ms. D, standing alone, constitute clear and convincing evidence of a substantial risk of harm toward Riley.

Although the trial court found that Riley “does not have a parent who is capable of providing safe care or supervision,” the court made no findings regarding an alternative child care arrangement. In fact, there is evidence in the record from multiple sources that respondent sought respite care for Riley as she believed necessary.

Concurrence (Carpenter, J.): On the issue of neglect, I concur in result only.

In her text messages, respondent stated, inter alia, that she “want[ed] to strangle the [expletive omitted] lights out of [her child],” was “going to have to abandon him,” was “going to hurt him,” was “going to kill him” and “literally had [her] hands around his throat.”

The majority declines to conclude these text messages could be found by the trial judge to be clear and convincing evidence that Riley was at a substantial risk of harm based on respondent’s and Ms. D’s testimony.

Rather, the majority appears to reweigh evidence and determine witness credibility, as evidenced by the majority’s description of respondent’s text messages as including “hyperbolic language” and its presumption that respondent did not pose a substantial risk of harm to Riley because respondent was not involuntarily committed following DSS’s evaluation.

Nevertheless, despite evidence in the record to support a finding of neglect, the trial court failed to make such a finding. Accordingly, I agree with the majority’s decision to reverse the adjudication of neglect and remand for additional findings.

In re R.B. (Lawyers Weekly No. 011-239-21, 28 pp.) (April Wood, J.) (Jeffery Carpenter, J., concurring in part & concurring in result only in part) Appealed from Rockingham County District Court (Erica Brandon, J.) Lisa Anne Wagner for respondent; Daniel Gibson for guardian ad litem; no brief filed for petitioner.

2021-NCCOA-654

Criminal Practice Juvenile – Delinquency Adjudication – Communicating Threats – Blowing up the School Eleven-year-old “Sophie” threatened to blow up her school. Three of her classmates heard the threat, but none of them testified that they thought she was serious when she made the threat. The state failed to prove that an objectively reasonable hearer would have construed Sophie’s statement about bombing the school as a true threat.

We reverse the adjudication order’s finding that Sophie violated G.S. § 14-277.6 (communicating a threat of mass violence on educational property). We affirm the adjudication order’s finding that Sophie violated G.S. § 14277.1 (communicating a threat).

Classmate Cameron took Sophie’s threat about hitting him with a crow-

8 / OPINION DIGESTS bar and burying him in a shallow grave seriously. Further, it would be reasonable for a person in his position to take the threat seriously, in that Cameron is smaller in stature than Sophie and had been physically threatened by her on other occasions. The state met its burden under § 14-277.1.

In re Z.P. (Lawyers Weekly No. 011-240-21, 10 pp.) (Chris Dillon, J.) Appealed from Iredell County District Court (Carole Hicks, J.) Tiffany Lucas for the state; Amanda Zimmer for the juvenile. 2021-NCCOA-655

Workers’ Compensation ‘Accident’ – Heavy Patient – Small Team The plaintiff-nurse suffered an injury when she and a certified nursing assistant removed a soiled pad from underneath an obese patient (weighing 300 to 400 pounds). Although plaintiff helped to remove soiled pads as part of her regular duties, she had to exert more force than usual because (1) of the patient’s size, (2) the patient did not help, and (3) when moving large patients, plaintiff usually worked with a larger team. The Industrial Commission’s findings that plaintiff had never attempted to move a patient of this size with only one other person and that such patients were moved by a team of three to four people supported the Commission’s conclusion that this incident was unforeseen and was an interruption not designed or expected by plaintiff, i.e., an “accident” within the meaning of the Workers’ Compensation Act. We affirm the award of benefits to plaintiff.

Aldridge v. Novant Health, Inc. (Lawyers Weekly No. 011-241-21, 17 pp.) (Toby Hampson, J.) Appealed from the Industrial Commission.

Bradley Smith for plaintiff; Jason Burton for defendant. 2021-NCCOA-651

Domestic Relations Parent & Child – Custody & Visitation – Best Interests – Jurisdiction The plaintiff-Mother so dominated therapy sessions that the parties’ sons got little benefit from counseling until they began individual therapy.

The 14- and 16-year-old boys did not want to see Mother; in fact, one

N O R T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

of them had a recurrence of a stressrelated ailment when he was forced to spend time with her, and the ailment improved when he returned to the defendant-Father. Finally, Mother deceived a judge in Massachusetts into giving her a domestic violence protective order and an emergency custody order; Mother took the children from their home in South Carolina and took them to Massachusetts for two weeks; and Mother did not comprehend how her actions angered her sons. Under these circumstances, the trial court could deny visitation to Mother.

We affirm the trial court’s order granting sole custody to Father and no visitation to Mother.

Jurisdiction Because a parent, Father, and the children lived in North Carolina for at least six months before proceedings began, North Carolina is the home state. G.S. § 50A-102(7). Because North Carolina is the home state, its courts, including the trial court, had jurisdiction under § 50A-201(a)(1).

The parties’ New York child custody order specifically stated it was “relinquishing jurisdiction,” and it ordered the parents to register the order in North Carolina.

Because both requirements of § 50A-203 are thus met, the trial court had subject matter jurisdiction.

Mother alleged Father had defrauded the New York court by representing that he “planned to live in North Carolina at least until the children graduated from high school” but later moved to South Carolina. There is no question that Father and the children lived in North Carolina for 15 months and then moved to South Carolina.

The Uniform Child Custody Jurisdiction and Enforcement Act does not base jurisdiction on where a parent plans or intends to reside in the future, but on the actual residence.

Thus, we do not find support for invoking G.S. § 50A-208(a)’s jurisdictional bar based on unjustifiable conduct.

Moreover, both parties acquiesced to jurisdiction by registering the New York order in North Carolina, and the New York court determined that North Carolina was the more appropriate forum. Further, Mother engaged in fraud in Massachusetts by telling that court the children lived in Massachusetts and that Father had committed domestic violence.

The trial court correctly determined North Carolina courts had subject matter jurisdiction under the UCCJEA.

Custody The trial court made extensive, unchallenged findings of fact to support its ultimate finding of fact, similar conclusion of law, and order that “it is in the best interest and welfare of the minor children that ... Father be awarded sole custody of the minor children.”

First, the trial court made numerous unchallenged findings of fact indicating the children have been and are doing well living with Father.

The trial court also made unchallenged findings about the harm Mother’s actions have caused the children.

It specifically found the children are “angry” with Mother and “no longer want[] to have contact with her” because of her own actions. The trial court also recounted Mother’s actions in taking the children to Massachusetts, which the children viewed as Mother having “essentially kidnapped them.”

Lastly, as to Mother, the trial court made an unchallenged Finding that it is “very likely” that Mother “suffers from mental or emotional issues of unknown etiology.”

The trial court rejected Mother’s evidence that Father had harmed the children.

Given the unchallenged findings of fact, it is clear the trial court had substantial support for its ultimate findings of fact, conclusions of law, and determination that it was in the best interest of the children for Father to have sole legal and physical custody of the children.

Visitation Many of the trial court’s findings as to Mother’s actions and the effect those actions had on her children focused on the fallout from the incident when Mother took the children to Massachusetts.

The trial court also recounted how it allowed Mother to take the children to lunch shortly after the Massachusetts incident only to have the lunch dominated by Mother asking the children about what they had told the court in chambers, in violation of a court order, which “added further toxicity to the relationship” between Mother and the children. The trial court also recounted how, when the children were in therapy, Mother “dominated the sessions and they obtained little if any benefit.”

Finally, the trial court documented how the children did not want to see Mother as the case was being tried, which was in part due to one of the children being forced to spend his sixteenth birthday in court. This culminated in a situation where the

children no longer want to see Mother at all because of how she acts during visits. The stress she causes is so extreme that one of her children suffered a reoccurrence of a stress-related physical ailment that subsided once visitation stopped and he was having less stress.

As the children were ages 14 and 16 by the time the trial court’s order came out, they were old enough for the trial court to give their wishes to no longer see Mother considerable weight.

Mother argues the trial court erred in denying all visitation because there was not “any finding of physical or sexual abuse or severe neglect of the children.” Contrary to that argument, which Mother makes without citation to authority, the trial court does not have to find a parent has physically or sexually abused the children or “severely neglected” them before ceasing visitation.

G.S. § 50-13.5(i) requires specific findings to support the denial of visitation and the best interests of the children but does not require findings of physical or sexual abuse or severe neglect. The trial court correctly applied the best interest of the child standard, and the extensive unchallenged findings of fact support its determination.

Affirmed.

Malone-Pass v. Schultz (Lawyers Weekly No. 011-242-21, 38 pp.)

(Donna Stroud, C.J.) Appealed from the District Court in Cumberland County (Edward Pone, J.) Krispen Culbertson for plaintiff; no brief filed for defendant. 2021-NCCOA-656

Workers’ Compensation Jurisdiction – Untimely Claim – Death Benefits – Decedent’s Claim The plaintiff-widow’s claim for death benefits under the Workers’ Compensation Act is separate from the workers’ compensation claim her late husband filed before he died.

Since plaintiff filed her claim more than two years after her husband’s death, the claim was untimely filed.

The Industrial Commission correctly ruled that it lacked jurisdiction over plaintiff’s claim.

We affirm the dismissal of plaintiff’s claim.

Background Plaintiff’s husband (decedent) hurt his back on 30 January 2015, while

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OPINION DIGESTS / 9

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Decem ber 20, 2021

he was employed by defendant. Decedent filed a workers’ compensation claim on 11 February 2015. Decedent died on 21 February 2015.

A couple of weeks later, plaintiff met with representatives from defendant’s human resources department to sign papers related to insurance policies and an accidental death insurance policy. Plaintiff testified that she believed she was signing all the paperwork related to decedent’s death and the benefits she was entitled to.

On 18 January 2018, plaintiff filed a Form 33 Request that Claim be Assigned for Hearing with the Industrial Commission. Because plaintiff’s claim was not filed within two years of decedent’s death, the Commission dismissed plaintiff’s claim.

Discussion G.S. § 97-24 states in part, “Right to compensation barred after two years… “(a) The right to compensation under this Article shall be forever barred unless (i) a claim or memorandum of agreement as provided in [G.S. §] 9782 is filed with the Commission or the employee is paid compensation as provided under this Article within two years after the accident or (ii) a claim or memorandum of agreement as provided in [G.S. §] 97-82 is filed with the Commission within two years after the last payment of medical compensation when no other compensation has been paid and when the employer’s liability has not otherwise been established under this Article.”

While death benefits are not specifically mentioned in § 97- 24(a), the text of the statute refers to “compensation,” a term defined in G.S. § 97-2 as encompassing “the money allowance payable to an employee or to his dependents as provided for in this Article, and includes funeral benefits provided herein.” We therefore agree with the Commission’s conclusion that the timeliness of death claims is contemplated and governed by § 9724(a).

Decedent’s filing of a Form 18 within the two-year deadline cannot qualify as a filing for the purposes of plaintiff’s separate cause of action. Death and funeral benefits were not at issue at the time of the filing of the Form 18 and could not have been raised during decedent’s lifetime. Plaintiff’s pursuit of benefits as decedent’s widow and sole dependent is a separate claim from that filed originally by decedent prior to his death.

Decedent’s filing of a Form 18 for workers’ compensation benefits had no effect on when plaintiff’s cause of action arose.

Plaintiff’s pursuit of benefits as decedent’s dependent is a separate cause of action from decedent’s. Our case law does not provide for the conclusion that plaintiff’s cause of action can be said to relate back to the date of decedent’s separate cause of action where plaintiff’s cause of did not exist at the time of the filing of decedent’s cause of action, and the statute of limitations has otherwise expired as to plaintiff’s cause of action.

G.S. § 97-38 provides in part, “If death results proximately from a compensable injury or occupational disease and within six years thereafter, or within two years of the final determination of disability, whichever is later, the employer shall pay or cause to be paid, subject to the provisions of other sections of this Article, weekly payments of compensation...”

This court has no reason to interpret §§ 97-24 and 97-38 as mutually exclusive provisions. Rather, § 97-38 provides for a statute of limitations

for payments to a dependent when death results proximately from a compensable injury. Because timely filing is a condition precedent to compensation under § 97-24, a compensable injury would not be at issue prior to a timely filing of a claim for workers’ compensation benefits. Therefore, the condition precedent specified in § 9724 still applies to plaintiff’s filing.

Affirmed.

Dissent (Arrowood, J.): In what appears to be an issue of first impression, I would hold that under § 97-24(a), a dependent is not required to file a separate and distinct claim within the two-year statutory period, so long as an initial claim satisfies the limitation period.

Section 97-24(a) requires that “a claim” be filed “within two years after the accident.” Decedent complied with statutory requirements by filing a Form 18 within two years of his injury. The plain language of the statute does not require plaintiff to file a separate claim for benefits. On these grounds, I would hold that the Commission erred in dismissing plaintiff’s claim for death benefits.

The legislative history of § 97-24 supports this reading. It originally imposed a one-year filing requirement on claims for benefits and for death benefits. In 1955, the filing time was extended to two years for workers’ claims while remaining at one year for death benefits. Then, in 1973, the General Assembly removed the language requiring that a separate claim be filed for death benefits.

By deleting the words “if death results from the accident, unless a claim be filed with the Commission within one year thereafter,” I believe the General Assembly expressed its clear intent that a separate claim for death benefits is not required and that an employee’s filing of a claim within two years after the accident is sufficient for the Industrial Commission to acquire jurisdiction over a subsequent claim for death benefits.

I would reverse.

McAuley v. North Carolina A&T State University (Lawyers Weekly No. 011-243-21, 17 pp.) (Jeffery Carpenter, J.) (John Arrowood, J., dissenting) Appealed from the Industrial Commission. Griffis Shuler for plaintiff; Brittany Brown for defendant. 2021-NCCOA-657

201(b) which says a judicially noticed fact is one that cannot be reasonably disputed because it is either 1) general knowledge or 2) “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

Here, the contentious issue—the level of rainfall—fails the first prong of § (b)’s test because, though individuals may know if it is raining, the precise amount of rain is not a generally known fact.

Under the second prong of the test, sources as used in § (b) must be “a document of such indisputable accuracy as [to justify] judicial reliance.” State v. Dancy, 297 N.C. 40, 252 S.E.2d 514 (1979). The amount of rain is generally a fact that is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Rule 201(b).

Defendant proffered a weather report from the National Weather Service for the date of the crash, yet the proffered weather report does not state the level of rain that was falling at the time of the crash. The rain level stopped being reported for the day up to three hours prior to the collision.

Because the proffered weather report did not contain the necessary data showing the level of rain at the time of the collision, the weather report fails under the second prong of Rule 201(b).

The trial court was not required under Rule 201(d) to take judicial notice but was free to use its discretion pursuant to Rule 201(c). The trial court did not abuse its discretion by not taking judicial notice of the weather report.

Warrantless Blood Draw Defendant’s vehicle swerved into oncoming traffic, causing a serious accident. Given eyewitness reports of defendant’s erratic driving, the absence of skid marks, defendant’s loopy and lethargic demeanor and slurred speech, and his admission to having taken multiple prescribed medications (oxycodone, valium and morphine), the investigating officer had probable cause to believe defendant had been driving while impaired.

Given the exigent circumstances— defendant’s traumatic injuries and deteriorating condition, his need for pain medication, and the fact that he was being flown to another hospital to receive a higher level of care—a warrantless blood draw was permissible.

Assault Defendant assaulted victim Wasinger by hitting her vehicle with his vehicle, a white Land Rover. According to eyewitness reports and the lack of skid marks to indicate an attempt to stop his vehicle, defendant was driving his vehicle in an erratic and reckless manner. Thus, defendant’s vehicle may be considered a deadly weapon.

As a matter of law, defendant’s culpable negligence was established when defendant proceeded to operate a vehicle while under the influence of impairing substances. Such negligence was further shown by reports of defendant’s driving from two eyewitnesses. Wasinger suffered serious injury, requiring weeks in the hospital and two months in a wheelchair, and resulting in extremely restricted movement of her hand and legs. Due to her injuries, Wasinger lost her job

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Criminal Practice DWI – Judicial Notice – Weather Report – Search & Seizure – Warrantless Blood Draw The rainfall data in the weather report proffered by defendant ended a few hours before the accident at issue; moreover, eyewitnesses testified about the weather conditions at the time. The trial court did not abuse its discretion when it declined to take judicial notice of the proffered weather report.

We find no error in defendant’s convictions of assault with a deadly weapon inflicting serious injury, felony serious injury by a motor vehicle, and driving while impaired.

N.C. R. Evid. 201(d) states, “A court shall take judicial notice if requested by a party and supplied with the necessary information.” Defendant argues that the trial court thus has no discretion but to take judicial notice when supplied with the information prescribed by Rule 201.

However, Rule 201(d) is predicated upon the two-part test of Rule

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10 / OPINION DIGESTS and is now enrolled in disability with Social Security. The elements of assault with a deadly weapon inflicting serious injury were satisfied.

Because substantial evidence exists to illustrate defendant caused serious injury to Wasinger due to his driving while impaired, the elements of felony serious injury by motor vehicle were also met.

The trial court did not err in denying defendant’s motion to dismiss.

No error.

State v. Bucklew (Lawyers Weekly No. 011-244-21, 26 pp.) (April Wood, J.) Appealed from Martin County Superior Court (Leonard Wiggins, J.) Kathryne Hathcock for the state; Leslie Robinson for defendant.

2021-NCCOA-659

Criminal Practice Appeals – Guilty Plea – Search & Seizure – Traffic Stop – Transporter Plate After defendant’s motion to suppress was denied, he pled guilty without the benefit of a plea agreement.

The concerns that were present in State v. Reynolds, 298 N.C. 380, 259 S.E.2d 843 (1979), were not present here, in that the state was not “trapped into agreeing to a plea bargain” only to later “have [] defendant contest that bargain.” Defendant was not required to give the state and trial court notice of his intent to appeal before plea negotiations were finalized because there were no plea negotiations. Defendant has a statutory right to appeal the denial of his motion to suppress pursuant to G.S. § 15A-979(b).

We reverse the trial court’s denial of defendant’s motion to suppress.

As justification for stopping the car in which defendant was a passenger, the arresting officer’s purported reasonable articulable suspicion of criminal activity was based on, among other things, the fact that the officer had never seen a transporter plate on a motor vehicle other than a truck before and believed transporter plates could not be used on regular motor vehicles. However, G.S. § 20-79.25(a) clearly indicates that transporter plates can be used on both trucks and other motor vehicles.

Under Heien v. North Carolina, 574 U.S. 54 (2014), the Fourth Amendment tolerates only objectively reasonable mistakes of law. State v. Eldridge, 249 N.C. App. 493, 790 S.E.2d 740 (2016), held that “in order for an officer’s mistake of law while enforcing a statute to be objectively reasonable, the statute at issue must be ambiguous.”

G.S. § 20-79.2(a) is clear and unambiguous. Transporter plates can be displayed on both cars and trucks, as the statute uses the phrase “motor vehicle” in the general sense. The requirements of the statute clearly apply to both cars and trucks and do not calculate into our reasonable suspicion analysis of this traffic stop merely because the transporter plate was displayed on a car. The additional facts that (1) the car was leaving a trucking company that was closed for the day and (2) there had been a recent trailer theft in the area are insufficient to support reasonable articulable suspicion, even when considered in totality.

The trial court erred in denying defendant’s motion to suppress. We reverse and remand for entry of an order vacating defendant’s guilty plea.

State v. Jonas (Lawyers Weekly

No. 011-245-21, 21 pp.) (Jeffrey Murphy, J.) Appealed from Cabarrus County Superior Court (Martin McGee, J.) Jessica Macari for the state; Kerri Sigler for defendant. 2021-NCCOA-660

Criminal Practice Murder – Voluntary Intoxication – Torture Believing that the victim had “snitched” to police about defendant’s drug dealing, defendant subjected the victim to days of threats and cruel mistreatment before the victim was fatally shot at defendant’s command. Although defendant and his companions used methamphetamine frequently during those days, a witness’s testimony that defendant was paranoid and “wigging” during the events was only evidence of defendant’s intoxication. Defendant failed to show his mind and reason were so completely intoxicated and overthrown from methamphetamine use as to render him utterly incapable of forming a deliberate and premeditated purpose to kill. The trial court did not err in denying defendant’s request for a jury instruction on voluntary intoxication.

We find no error in defendant’s convictions of first-degree murder, possession of a firearm by a convicted felon, conspiracy to commit first-degree murder, and first-degree kidnapping.

Defendant’s actions showing he intended for his actions to result in the victim’s death are that he brandished a gun in the victim’s presence while declaring he “[smelled] death,” pondered aloud having to “figure out” what to do with the witnesses if he killed the victim, ordered companions Fox or Thompson to hit the victim with a large rock, told Fox to kill the victim, orchestrated the disposal of the victim’s body, retained the spent bullet he had fired into the victim’s leg as a “trophy,” fled to Georgia to avoid arrest after the killing, described his actions to family in Georgia, and showed videos he filmed of the victim on his cellphone.

Defendant’s actions also showed his specific intent to unlawfully restrain or confine over successive days, stating he was doing this in retribution for the victim’s “snitching,” binding the victim’s hands behind his back, retrieving the victim when he tried to escape on foot, offering freedom if the victim killed his mother, threatening to kill the victim by a “hot shot” (an injectable mixture of methamphetamine and poison) and orchestrating the attempted hanging of the victim.

Defendant possessed and demonstrated the requisite intent to commit the underlying felony, first-degree kidnapping, to support the felony murder conviction.

Even though a prosecution witness testified that the victim died from the gunshot fired by Fox, the trial court did not err in denying defendant’s motion to dismiss the charge of murder by torture.

Defendant’s course of conduct occurred over the period of days while the victim was detained, humiliated, beaten, and tortured. Contrary to defendant’s assertions, the torture of the victim did not just occur when defendant shot him in the leg, but began before when he struck the victim, polled others to vote if the victim should live or die, demanded a “hot

N O R T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

shot” be mixed to inject the victim, set up and attempted to hang the victim by a telephone cord, ordered the victim’s beating with a rock, and concluded with defendant ordering Fox, under threats to her and her families’ lives, to shoot and kill the victim. The trial court properly denied defendant’s motion to dismiss the first-degree murder charge under a theory of torture.

No error.

State v. Bowman (Lawyers Weekly No. 011-246-21, 19 pp.) (John Tyson, J.) Appealed from Mitchell County Superior Court (Gary Gavenus, J.) Michael Henry for the state; Leslie Rawls for defendant. 2021-NCCOA-658

Domestic Relations Child Custody – Grandparents – Standing – Constitutional – Visitation Conditions Contrary to the defendant-mother’s argument, in order to show standing, the plaintiff-grandparents were not required to prove by clear and convincing evidence that the mother had acted inconsistently with her parental status. Rather, in order to show standing to sue for custody, the grandparents needed only to allege both that they are the grandparents of the minor child and facts sufficient to show that the mother is unfit or has engaged in conduct inconsistent with their parental status.

We affirm the trial court’s order granting custody of “Josie” to her paternal grandparents and granting visitation to the mother.

The trial court’s supported and uncontested findings show that Josie’s stepfather punished her harshly, insulted her, and engaged in inappropriate arguments with her. The mother did not protect Josie from her husband’s abusive behavior and inappropriate discipline, but she often asked the grandparents to shoulder the burdens of parenting Josie when tensions between Josie and her stepfather grew too difficult to bear.

The trial court also found that the mother “had little or no income.” It is true that a parent’s socioeconomic status is irrelevant to a determination of that parent’s unfitness or acts inconsistent with their constitutionally protected status. Nevertheless, since the trial court’s remaining findings are sufficient to support its conclusion that the mother acted inconsistently with her parental status, any potential error was harmless.

The findings of fact challenged by the mother are supported by clear and convincing evidence. The unchallenged findings of fact, by themselves and together with the challenged findings, support the trial court’s conclusion that the mother “engaged in conduct inconsistent with her protected status as a parent…”

Given Josie’s good relationship with her grandparents, her abusive relationship with her stepfather, and her mother’s failure to protect her, the trial court did not abuse its discretion when it determined that it was in Josie’s best interests to grant sole legal and physical custody of Josie to her grandparents.

Where county social services records indicate that (1) the mother was diagnosed with PTSD and borderline personality disorder in 2008, (2) she stopped taking her medication, and (3) she was also diagnosed as manic

and had a prior suicide attempt, and where there was no evidence that the mother and her husband engaged in therapy or services offered to help them effectively parent, the trial court’s decision to require the mother to undergo a psychological evaluation and comply with all recommendations did not represent an abuse of discretion.

Although the trial court also ordered the stepfather to complete parenting classes and anger management and substance abuse evaluations, the order does not condition the mother’s visitation with Josie on the stepfather’s compliance with the order. Rather, the order conditions the stepfather’s ability to have contact with Josie on his compliance with the order.

The order does state that the mother’s “visitation shall occur at the [defendants’] home so long as [the stepfather] ... is not present in the home at any time during the weekend of [the mother’s] visitation.

[The mother’s] visitation shall immediately cease if [the stepfather] ... is/ has been in the home during the visitation period.”

A trial court has the discretion to prohibit the exercise of visitation rights by a non-custodial parent in the presence of a specified person if the evidence demonstrates that exposure to the prohibited person would adversely affect the child. Here, there was ample competent evidence that exposure to and contact with the stepfather adversely affected Josie’s welfare. Accordingly, the trial court did not abuse its discretion.

Affirmed.

Thomas v. Oxendine (Lawyers Weekly No. 011-247-21, 30 pp.) (Allegra Collins, J.) Appealed from Cabarrus County District Court (Juanita Boger-Allen, J.) Kathleen Arundell Jackson for plaintiffs; James DeMay for defendant. 2021-NCCOA-661

Civil Practice Discovery – Subpoena – Nonresponsive Documents – Privilege – Relevance In order to obtain documents responsive to a discovery request, plaintiff ultimately had to issue a subpoena to her ex-husband. Along with the subpoenaed documents, the ex-husband included many irrelevant documents as well as privileged communications between plaintiff and counsel and attorney work-product. Although N.C. R. Civ. P. 45(d1) requires the party responsible for the issuance and service of a subpoena to “provide all other parties a reasonable opportunity to copy and inspect” the material produced, Rule 45(d1) must be read in harmony with N.C. R. Civ. P. 26. Defendants are not entitled to copy and inspect material subject to plaintiff’s attorney-client privilege, counsel’s work product, or irrelevant documents like recipes and homework.

We vacate the trial court’s production order and remand for an order requiring plaintiff to provide only nonprivileged and relevant documents for defendants’ review, which are responsive to defendants’ discovery request.

Our review of the legislative history of Rules 26 and 45 shows that the General Assembly intended to protect a party who has received privileged or non-responsive documents as a result of a subpoena, through no fault of their own.

Moreover, with regard to electroni-

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I Decem ber 20, 2021

cally stored information—the exhusband made the production via thumb drive—our courts have consistently held that Rule 45 is expressly subject to the limitations of Rule 26(b)(1a).

Defendants’ interpretation would make a Rule 45(d1) demand inconsistent with the otherwise harmonious rules governing discovery. If the trial court’s hyper-technical reading of Rule 45(d1) is upheld, a Rule 45(d1) request would become the only discovery device not subject to assertions of privilege and limitations.

A party would never be able to use a subpoena to recover her own confidential and privileged documents, and a subpoena recipient would be free to harass the requesting party by producing sensitive, embarrassing, irrelevant and privileged documents that are not responsive to the discovery request.

Our General Assembly could not have reasonably intended that result.

Rule 45 is meant to be limited by adequate compliance with Rule 26. Plaintiff fully complied with Rule 26(5)(a) and thus garners the protections inherent in Rule 26.

Vacated and remanded.

Wing v. Goldman Sachs Trust Co., N.A. (Lawyers Weekly No. 011248-21, 15 pp.) (John Tyson, J.) Appealed from Wake County Superior Court (Edwin Wilson, J.) Johnny Loper, Elizabeth Arias and Jesse Schaefer for plaintiff; Alan Duncan, Allison Mullins, Hillary Kies, Leslie Packer, Alex Hagan and Michelle Liguori for defendants. 2021-NCCOA-662

N.C. BUSINESS COURT

Tort/Negligence Contract – Tortious Interference – Justification – Letter of Intent The counterclaimants allege that the counterclaim defendants agreed to abandon their unsuccessful businessto-business (B2B) efforts and to act as distributor for counterclaimants in that market. Counterclaimants also allege that, once the counterclaim defendants saw counterclaimants’ success in the B2B market, the counterclaim defendants surreptitiously interfered with counterclaimants’ contracts and prospective contracts.

Given the unsettled nature of North Carolina law on the question of justification for interference, counterclaimants have stated claims for tortious interference with contract and tortious interference with prospective economic advantage.

The court denies the motion by counterclaim defendants Avadim Health, Inc., and Stephen Woody to dismiss counterclaims for breach of contract, tortious interference, fraud and unfair trade practices. The court grants the motion as to the counterclaim for violation of the North Carolina Racketeer Influenced and Corrupt Organizations Act. Breach of Contract Avadim and Woody argue there was no enforceable contract between the parties. The court disagrees.

In addition to their initial and amended letter of intent (LOI), the parties agreed in a second amendment agreeing that the LOI became effective on 20 March 2020.

According to counterclaimants, the amended LOI specified the following terms of the agreement: the purchase price; the markets being purchased; the Avadim products that counterclaimant Community Health Group, Inc. (CHG), would exclusively distribute and market; the product pricing; exclusivity of required sales thresholds; and the duration.

Counterclaimants further allege that, by July 2020, any loose ends that may have been remaining as to the terms of the LOI were tied up, the parties had agreed in concept to all material terms and could have proceeded to complete the transaction, and that the remaining drafting issues had been resolved by the parties, and Avadim did not identify any condition that counterclaimant Daybreak Capital Partners, LLC, or CHG was unable to satisfy nor any material term needing resolution.

In June 2020, the parties also entered into an interim distribution agreement, which allowed CHG to begin selling Avadim’s products in the B2B market before the ultimate sale transaction was to be completed.

These acts demonstrate the parties’ mutual assent to be obligated to complete the contemplated transaction.

Counterclaimants have sufficiently stated a claim for breach of contract against Avadim.

Tortious Interference Counterclaimants allege that Avadim and Woody interfered with CHG’s contract with BTW Distributors, LLC, by circumventing CHG and working directly with BTW while knowing that BTW was under an exclusive contract with CHG. Additionally, counterclaimants allege that Avadim and Woody caused CHG subdistributors School Health and Proklean to refrain from entering into contracts with CHG that otherwise would have materialized but for the interference.

Counterclaimants also allege, among other things, that “Avadim had elected to abandon th[e B2B market] and terminate its employees” who were working on fostering the B2B portion of Avadim’s business before the alleged interference.

Counterclaimants allege that it was not until Avadim and Woody recognized that the B2B market would indeed be a profitable venture for CHG that they “abruptly performed an about-face,” “secretly decided to stop negotiating in good faith to close the LOI Transaction,” and “exhorted CHG to continue its efforts” all the while knowingly “pursuing the exact B2B business and specific customers and distributors that CHG developed[.]”

These factual allegations are sufficient to survive a motion to dismiss.

Nevertheless, Avadim and Woody contend their actions were justified as business competition.

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12 / OPINION DIGESTS justified and unjustified interference with contract. Because of this, North Carolina appellate courts have allowed for a case-by-case determination, by defining justification loosely as “just, lawful excuse” for the alleged interference.

Competition in business constitutes justifiable interference in another’s business relations and is not actionable so long as it is carried on in furtherance of one’s own interests and by means that are lawful.

Counterclaimants’ entire claim is premised on the fact that Avadim was not to be CHG’s competitor but rather its champion and supplier in pursuing the B2B business that Avadim was abandoning.

The nature of the LOI, the relationship between Avadim, Woody, CHG and Daybreak, and the societal interests in deterring the type of conduct alleged in the counterclaims all weigh in favor of allowing the tortious interference counterclaims to move forward.

N.C. RICO Counterclaimants allege that Avadim and Woody violated the N.C. RICO Act by (1) engaging in wire fraud by using email and text messages to send a variety of fraudulent statements; (2) obtaining property by false pretenses by siphoning the B2B sales network, development plans and business model developed by counterclaimants; and (3) obtaining Daybreak’s signature on the interim distribution agreement by false pretenses by falsely asserting that Avadim and Woody intended to complete the transaction contemplated by the LOI. Counterclaimants further allege that all these activities occurred within a four-year period, and that all these incidents have a same or similar purpose, result, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics. Counterclaimants also contend that they were injured by these practices and that Avadim and Woody received pecuniary gain from these activities.

The N.C. RICO Act is intended to reach allegations of “organized crime” rather than the type of conduct that is alleged by Counterclaim Plaintiffs here.

The allegations contained in the counterclaims here closely resemble those in Campbell v. Bowman, where the North Carolina Court of Appeals held, “The General Assembly did not intend that an investor’s claim to recoup money lost through a failed financial venture with no larger criminal scope could be the basis of a RICO claim, [and] ... [that] conduct is not within the scope of the [N.C.] RICO Act.” COA05-16, 2005 N.C. App. LEXIS 2444, at *15 (Nov. 15, 2005) (unpublished).

Counterclaimants have not stated a claim under the N.C. RICO Act. Motion granted in part, denied in part.

Avadim Health, Inc. v. Harkey (Lawyers Weekly No. 020073-21, 28 pp.) (Michael Robinson, J.) Robert Carpenter, Robert Dungan, and Jesse Swords for plaintiff; Terry Brown and Stanley Yorsz for counterclaim defendants; Benjamin DeCelle, Pearlynn Houck, Matthew Kilby, James Volling and Bryan Washburn for defendants.

2021 NCBC 73

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Tort/Negligence

Civil Practice

Unfair Trade Practices – Corporate – LLC Members – ‘In or Affecting Commerce’

Class Action – Uncertified Class – Counterclaims – First Impression

Even though a member of the parties’ limited liability company involved his wholly-owned corporation in his alleged misuse of the LLC’s property, the parties’ dispute is still sufficiently internal that it is not “in or affecting commerce” within the meaning of G.S. § 75-1.1.

The court grants defendants’ motion to dismiss plaintiff’s unfair trade practices claim.

Allegations Defendant Willette’s wholly owned corporation, defendant BR Ventures, Inc., registered “CAPISHE” as a trademark, asserting that it used the CAPISHE trademark commercially. However, the LLC’s restaurant, Capishe, not BR Ventures, has been in full control of the CAPISHE trademark since the opening of the restaurant. BR Ventures has refused demands to transfer ownership of the trademark to the LLC. Without the unanimous consent required to amend the LLC’s operating agreement, Willette unilaterally amended the operating agreement to benefit himself.

A forensic accountant’s examination of the LLC’s books and records revealed that Willette had engaged in a pattern of self-dealing, including actions to benefit his wife and BR Ventures.

Analysis In essence, plaintiff contends that Willette abused his position as a member of Capishe to the detriment of the LLC and for Willette’s own personal benefit. The allegations of self-dealing at issue here are similar to those this Court has previously found to be outside the Unfair and Deceptive Trade Practices Act’s definition of “in or affecting commerce.”

Moreover, the assertions concerning BR Ventures’ involvement do not compel a different result.

Although the complaint suggests that money belonging to Capishe may have been funneled to BR Ventures, any injury resulting from such transactions accrued to Capishe and, by extension, plaintiff. The mere presence of BR Ventures as a potential beneficiary of Willette’s alleged wrongful conduct does not alter the fundamental character of this internal dispute.

Nor do the allegations surrounding the registration of the CAPISHE trademark satisfy the “in or affecting commerce” requirement. Although plaintiff alleges that BR Ventures fraudulently asserted ownership of the CAPISHE trademark, those allegations are merely another manifestation of plaintiff’s contention that Willette, as a member of Capishe, acted to the detriment of Capishe and plaintiff by conferring the benefit of a trademark registration away from Capishe and toward a separate entity in which Willette held an interest.

Motion granted.

Poluka v. Willette (Lawyers Weekly No. 020-074-21, 18 pp.)

(Mark Davis, J.) Keith Richardson and Andrew Jones for plaintiff; Sara Higgins for defendants; Joseph Moss for nominal defendant.

2021 NCBC 74

Where a plaintiff class has not yet been certified, due process principles warn against allowing a defendant to threaten class members with liability, even in a preliminary way, before the court has power over them and before they have had a chance to opt into or out of the class.

Defendants’ conditional counterclaims are dismissed without prejudice.

The named plaintiff was an uninsured patient at the defendant-hospital. He brought this proposed class action challenging the hospital’s billing practices. Expressly conditioned on class certification, the hospital seeks to assert counterclaims against class members who have not paid their bills.

Plaintiff argues that members of an uncertified class are not parties and therefore not susceptible to counterclaims. The hospital responds that courts treat unnamed class members as parties for some purposes and that its counterclaims are compulsory.

North Carolina courts haven’t addressed this issue. But the weight of persuasive federal authority, applying analogous rules, favors plaintiff.

Counterclaims, whether compulsory or permissive, may target only “an opposing party.” N.C. R. Civ. P. 13(a), (b). No reasonable understanding of “opposing party” would include members of an uncertified class.

True, absent class members are treated as parties for some purposes after certification. Not so before certification: A nonnamed class member is not a party to class-action litigation before the class is certified.

Because an uncertified class is really no class at all, its members are not truly before the presiding court.

Certification is the event that, critically, renders them subject to the court’s power. Even then, class members may have the right to opt out.

Due process principles warn against allowing a defendant to threaten class members with liability, even in a preliminary way, before the court has power over them and before they have had a chance to opt into or out of the class.

The hospital also worries that it might have waived its right to counterclaim had it waited until certification. The law is not so capricious as that. Looking again to federal decisions, courts do not require defendants to take premature steps against putative class members just to preserve positions that may never ripen.

Precertification counterclaims against absent class members are not authorized by rule, are not necessary for preservation purposes, and may endanger the due process rights of the absentees. On the other hand, nothing is to be gained by retaining the counterclaims in limbo.

The hospital intends to argue that its counterclaims weigh against class certification, but its argument will be the same whether they are pending or merely promised. Likewise, class certification discovery is under way and does not hinge on the pendency of the counterclaims.

Moreover, a dismissal without prejudice means that the hospital is no worse off. If a class is certified, the hospital will have the chance to reassert its counterclaims and, if needed, to request a

reasonable adjustment of the discovery schedule to accommodate those claims.

Dismissed without prejudice.

Chambers v. Moses H. Cone Memorial Hospital (Lawyers Weekly No. 020-075-21, 6 pp.) (Adam Conrad, J.) John Bloss and Barry Kramer for plaintiff; Philip Mohr and Brant Powell for defendants.

2021 NCBC 75

Contract Construction – Unlicensed Contractor – Partnering & Subsequent Licensure After their homes were damaged

by Hurricane Florence, the plaintiff-homeowners contracted with defendant Disaster America USA, LLC, to repair and restore their homes. However, the contract values exceeded $30,000 and Disaster America USA was not a licensed contractor.

Disaster America USA’s lack of a contractor’s license was not cured by either (1) Disaster America USA’s purported use of the license of plaintiff JCG & Associates, LLC, nor (2) Disaster America of North Carolina’s subsequent licensure and Disaster America USA’s assignment of the contract to Disaster America North Carolina.

The homeowners are entitled to summary judgment on their claim for a declaratory judgment that their contracts with Disaster America USA are illegal and unenforceable. They are also entitled to summary judgment on Disaster America NC’s counterclaims for breach of contract and quantum meruit. However, the homeowners are not entitled to summary judgment on their unfair trade practices claim.

A contract illegally entered into by an unlicensed general construction contractor is unenforceable by the contractor. The contract cannot be validated by the contractor’s subsequent procurement of a license or by partnering with a licensed contractor. Likewise, assignment to a licensed contractor does not cure the illegal contract.

The undisputed evidence shows that the contracts at issue are illegal and unenforceable. The homeowners are entitled to a declaration saying the same.

As to Disaster America NC’s counterclaims, an unlicensed contractor may not recover on a contract or in quantum meruit. The homeowners are entitled to summary judgment as to these counterclaims as well.

However, with respect to the homeowners’ unfair trade practices claim, there are factual disputes that preclude summary judgment.

There are disputes as to whether (1) Disaster America USA disclosed its unlicensed status to the homeowners, (2) the homeowners relied on any alleged misrepresentation, and (3) the homeowners were damaged by the alleged misrepresentations about Disaster America USA’s licensing status.

The homeowners’ motion for partial summary judgment is granted in part and denied in part.

JCG & Associates, LLC v. Disaster America USA, LLC (Lawyers Weekly No. 020-076-21, 12 pp.) (Adam Conrad, J.) Cory Reiss and Kyle Nutt for plaintiffs; Samuel Potter and Bradley Coxe for defendants. 2021 NCBC 76

OPINION DIGESTS / 13

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Decem ber 20, 2021

Tort/Negligence Unjust Enrichment – Unclean Hands Defense – Contract – Recission The plaintiff-insurance agent alleges that defendant Griffin—owner of defendant Griffin Insurance Agency (GIA), originally a captive agency of Nationwide Mutual Insurance Co.—continuously compelled plaintiff to write business for First Choice Insurance Brokers, LLC, an insurance agency owned by Griffin’s wife and son, and instructed plaintiff to switch customers from GIA and Nationwide to First Choice, decreasing GIA and plaintiff’s book of business with Nationwide and increasing First Choice’s book of business, financially benefitting Griffin. Although defendants assert the defense of unclean hands, since the doctrine of unclean hands is fact dependent, defendants are not entitled to dismissal of plaintiff’s unjust enrichment claim.

Defendants’ motion to dismiss is granted in part, denied in part.

Plaintiff alleges that defendants tortiously interfered with plaintiff’s business relationship with Nationwide by wrongfully accusing plaintiff of issuing false certificates of insurance. However, plaintiff also alleges that this practice was authorized by Nationwide and not capable of causing any financial damage to defendants or Nationwide. Plaintiff’s allegations are logically inconsistent.

If Nationwide had approved the conduct, Nationwide could not have been induced to terminate its relationship with plaintiff for engaging the conduct.

Although plaintiff alleges that defendants caused him to breach his exclusivity agreement with Nationwide, plaintiff does not allege that defendants thereby induced Nationwide to refrain from performing a contract with plaintiff.

Plaintiff fails to state a claim of intentional interference with plaintiff’s business.

Based on an allegation of duress, plaintiff seeks recission of a shareholder’s agreement that allegedly assigned to him a lower ownership share in GIA than he should have received.

Plaintiff asserts that defendants breached a fiduciary duty to him by forcing him to sign the shareholder’s agreement. However, plaintiff fails to allege facts which would have created fiduciary duties owed to plaintiff at the time of the alleged misconduct.

Nevertheless, plaintiff may still survive dismissal of the rescission claim if he alleges that Griffin threatened a breach of contract that would destroy plaintiff’s business where Griffin’s power did not come to him as a result of the contract. A threatened violation of a contractual duty ordinarily is not in itself coercive, but if failure to receive the promised performance will result in irreparable injury to business, the threat may involve duress.

However the complaint does not contain allegations regarding an external source of power that, combined with the threatened breach, gave Griffin means to exert duress over plaintiff. Therefore, plaintiff has not satisfied the pleading requirements and his rescission claim must be dismissed.

Although plaintiff alleges several facts that may support his contention that defendants committed “willful and wanton” acts and acted maliciously, a claim for punitive damages is not a stand-alone cause of action.

Plaintiff’s purported claim for punitive damages is dismissed without prejudice.

Motion granted in part, denied in part.

Loyd v. Griffin (Lawyers Weekly No. 020-077-21, 26 pp.) (Michael Robinson, J.) Michael Levine, Cathy Williams, John Austin and Gary Mauney for plaintiff; Joshua Bennett and Mitchell Hendrix Blankenship for defendants. 2021 NCBC 77

Contract Time for Performance – Incidental Beneficiary – Corporate – Veil Piercing The complaint contains numerous allegations which would permit a reasonable fact-finder to conclude that defendant Foss N.C. Mill Credit 2014 Fund I, LLC (Foss 2014) made its contract payment unreasonably late and thereby breached the parties’ contract; plaintiffs’ allegations put defendants on notice that plaintiffs contend Foss 2014 unreasonably delayed its payment in breach of the contract.

Plaintiffs’ failure to specifically plead that Foss 2014’s payment was not made “within a reasonable time” is without consequence.

Defendants’ motion for judgment on the pleadings is denied as to plaintiffs’ claims against Foss 2014 for breach of contract and breach of the covenant of good faith and fair dealing. Otherwise, the motion is granted.

Veil Piercing Our Supreme Court has not yet settled whether North Carolina or a foreign state’s law applies when a North Carolina court considers piercing the veil of a foreign corporation.

This court will apply North Carolina law.

Plaintiffs seek to pierce the corporate veil of Foss 2014 to reach the assets of its member, Foss. However, plaintiffs’ allegations in support of piercing the veil simply reflect Foss president George Barry’s conduct in directing Foss 2014 in Barry’s capacity as the chief manager of Foss 2014’s manager, North Carolina Housing Partners, LLC (NCHP). Actions taken in the exercise of ordinary daily management of the entities at issue is not sufficient, standing alone, to permit veil piercing.

Plaintiffs make allegations which suggest that Foss 2014 was undercapitalized, but these allegations are offered without any factual allegations showing that Foss 2014 was insolvent or had been intentionally capitalized without sufficient financial resources to conduct its business operations. As such, the fact that Foss 2014 obtained investment capital and financing from Foss, or from any other third party for that matter, is unremarkable and provides no basis for veil piercing.

Moreover, plaintiffs have not alleged facts showing that Foss commingled its funds with Foss 2014, including by paying Foss 2014’s debts directly, or that Foss 2014 was a puppet entity created for the purpose of entering into the relevant contract or used as a means to unjustly insulate another from liability.

Plaintiffs further allege that Foss 2014 is a “mere shell,” permitting veil piercing, because Foss 2014 is alleged to be a single purpose entity. But the fact that an entity is created for a single purpose, without more, is insufficient to sustain the veil piercing remedy.

At most, plaintiffs have alleged facts showing that Barry directed

Foss 2014 to engage in various activities while he was the chief manager of Foss 2014’s manager, that he occasionally received Foss 2014 communications at his Foss email address, that Foss and Foss 2014 employed the same legal counsel, and that Foss provided investment and operating funds to Foss 2014. Such allegations, especially without any factual allegations of fraudulent or inequitable conduct, are insufficient to permit a reasonable fact-finder to conclude that Foss 2014 had no separate mind, will or existence of its own and was therefore the mere instrumentality or tool of Foss.

Plaintiffs have failed to allege facts sufficient to permit the veil piercing remedy.

Statute of Limitations Plaintiffs allege that a March 11, 2016, funding agreement (the Agreement) was breached either on 23 March 2016 or 22 April 2016. These are the same dates plaintiffs allege that Foss was unjustly enriched by withholding payment, and that Foss breached its fiduciary duty to plaintiffs to make timely payment. The action against Foss, however, was not filed until 28 July 2020, over four years later.

Accordingly, accepting either of plaintiffs’ pleaded dates for the accrual of its claims as true, plaintiffs’ claims for breach of contract, unjust enrichment, and breach of fiduciary duty, as well as Plaintiffs’ attendant claims for breach of the covenant of good faith and fair dealing and civil conspiracy, accrued more than three years before plaintiffs asserted these claims against Foss. As such, these

claims are time-barred and must be dismissed on this basis.

Contract Plaintiffs’ claim for breach of contract and for breach of the covenant of good faith and fair dealing must be dismissed against Foss because Foss is not a party to the Agreement.

As to Foss 2014, although the Agreement does not contain a “time is of the essence” clause, North Carolina law implies that performance must be completed within a “reasonable time.

Defendants fail to accord the complaint the reasonable inferences that N.C. R. Civ. P. 12(c) requires.

For a breach of contract claim, it is enough to plead the (1) existence of a valid contract and (2) breach of the terms of that contract.

Not only does the complaint contain numerous allegations which, when viewed in the light most favorable to plaintiffs, permit a reasonable factfinder to conclude that Foss 2014 made its payment unreasonably late and thereby breached the Agreement, but plaintiffs’ allegations also put defendants on notice that plaintiffs contend that Foss 2014 unreasonably delayed its payment in breach of the Agreement. Plaintiffs’ failure to specifically plead that Foss 2014’s payment was not made “within a reasonable time” is without consequence since plaintiffs have pleaded facts and made allegations that effectively convey the very same thing.

Third-Party Beneficiary Although plaintiff Lenihan guaranteed the Agreement, he is an “incidental,” not a “direct,” beneficiary of the Agreement. While Lenihan undoubtedly benefits from the Agree-

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14 / OPINION DIGESTS ment’s mechanism for payment of the Loray’s bridge loan, the Agreement contemplates that Foss 2014 will make payment directly to the lender to pay off the bridge loan without any mention of Lenihan’s role as guarantor or any provision for the cancellation of his guaranty.

By the Agreement’s plain terms, therefore, the benefits Lenihan obtained under the Agreement derive from the Agreement’s objective—i.e., the payment of the bridge loan. The fact that Lenihan benefited from the Agreement’s performance is not discussed or contemplated by the Agreement’s plain terms, and the fact that Lenihan anticipated a benefit from the parties’ entry into the Agreement does not show an intent by the parties for Lenihan to receive a benefit that is enforceable in the courts. In such circumstances, Lenihan is merely an incidental, not an intended or direct, beneficiary of the Agreement, and he has no right to enforce the Agreement.

Loray Master Tenant, LLC v.

Foss N.C. Mill Credit 2014 Fund I, LLC (Lawyers Weekly No. 020-07821, 39 pp.) (Louis Bledsoe, J.) Erik Rosenwood, Nancy Litwak and Carl Burchette for plaintiffs; Peter Juran and Chad Archer for defendants.

2021 NCBC 78

N.C. COURT OF APPEALS, UNPUBLISHED

Contract Guaranty – Repayment Letter – Statute of Frauds – Due Date Extension In 2012, before plaintiff bought the underlying loans, which were made in 2005 and were guaranteed by defendants, from Alliance Bank, the bank’s president and the borrower’s principal signed a letter stating that the loans would be amortized over 30 years and that they would mature in 15 years. This letter satisfied the Statute of Frauds, and defendants’ guaranties follow the due dates of the 2005 loans. Since the due dates for the 2005 loans were validly extended until 2027 by the letter, there can be no breach of contract on the grounds of maturity default until 2027.

We affirm summary judgment for the defendant-guarantors.

Because plaintiff seeks to recover from defendant under express written guaranty agreements, the equitable remedy of unjust enrichment is not applicable.

Fund 19-Miller, LLC v. Isbill (Lawyers Weekly No. 012-384-21, 13 pp.) (Jeffery Carpenter, J.) Appealed from Mecklenburg County Superior Court (George Bell, J.) Melanie Raubach and Mark Kutny for plaintiff; Andrew Houston and Caleb Brown for defendants. 2021-NCCOA-623

Domestic Relations Parent & Child – Temporary Custody Order – Visitation Reduction Even though the custody order on appeal was not entered without prejudice to either party and failed to state a clear, specific and reconvening time, since the order did not determine all the issues—specifically, the order did not determine legal custody or provide details regarding the defendant-mother’s supervised visitation—the order

was temporary.

Appeal dismissed.

Generally, a child custody order is temporary if (1) it is entered without prejudice to either party, (2) it states a clear and specific reconvening time in the order and the time interval between the two hearings is reasonably brief, or (3) the order does not determine all the issues. When an order fails to meet one of these three requirements, it is considered permanent.

In an effort to show the custody order affected a substantial right, defendant argues that the trial court erred by failing to determine whether she could afford to pay for supervised visitation and that the terms of visitation set forth in the order basically terminated her visitation. However, this court has never held that a child custody order affects a substantial right except for when the physical well-being of a child is at stake. Defendant fails to cite a case where this court has held that a child custody modification ordering weekly supervised visitation affects a substantial right, nor does she explain how the order places the well-being of her minor child at issue. Thus, defendant has not shown she has been deprived of a substantial right.

Dismissed.

Gingras v. Stokes (Lawyers Weekly No. 012-385-21, 13 pp.)

(Jeffery Carpenter, J.) Appealed from Henderson County District Court (Emily Cowan, J.) Donald Barton for defendant; no brief filed for plaintiff. 2021-NCCOA-624

Civil Practice Involuntary Commitment – Danger to Self – Future Dangerousness – Medication Compliance The trial court’s findings were sufficient to reflect that respondent, who has a serious heart condition but believes his medications are poisoning him, posed a continuing danger to himself in that he remains delusional and will remain medication non-compliant in the future because his delusions render him “unable to grasp [his] medical condition or reality.” This creates a danger of future harm because, as the trial court found, without his medication, respondent’s life expectancy would be a matter of months.

We affirm the trial court’s involuntary commitment order.

No counsel for the state appeared at the involuntary commitment hearing.

The trial court asked neutral questions of respondent and his doctor, aimed at eliciting information the court deemed helpful to its decision. The trial court did not violate respondent’s right to an impartial tribunal by questioning witnesses and eliciting evidence.

In re S.C.J. (Lawyers Weekly No. 012-386-21, 16 pp.) (Toby Hampson, J.) Appealed from Durham County District Court (Pat Evans, J.) Elizabeth Forrest for the state; Candace Washington for respondent. 2021-NCCOA-628

Domestic Relations Parent & Child – Custody – Chapters 7B & 50 – Insufficient Findings Although the trial court’s threemonth review order contained the findings and conclusions required to

N O R T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

close the juvenile case under G.S. § 7B-911, the trial court’s civil custody order did not contain the findings needed in a permanent custody order, as required by § 7B-911.

We affirm as to the three-month review order but vacate and remand the civil custody order.

Not only did the civil custody order fail to make findings as to the fitness of either parent, but it also said that it was “in the best interests of the child that he remains placed with [the father].” This case involves three girls—not a single boy. Given the civil order’s inconsistencies and lack of express findings, we remand this matter to the trial court.

In addition, where the trial court ordered the respondent-mother to share in the cost of supervised visitation, it erred by failing to find that she could afford to do so.

In re T.-N. J.J. (Lawyers Weekly No. 012-387-21, 18 pp.) (Toby Hampson, J.) Appealed from Pitt County District Court (Lee Teague, J.) Christopher Watford for respondent; Matthew Gibson for Pitt County Department of Social Services; Carolina Mackie for guardian ad litem.

2021-NCCOA-629

Domestic Relations Parent & Child – Minor Mother – Subject Matter Jurisdiction – Conflict of Interest Regulation The respondent-mother was a minor in the custody of the Hoke County Department of Social Services when she gave birth to “Travis,” whom HCDSS alleged was dependent. 10A N.C.A.C. 70A.0103(a)(6) says a Department of Social Services shall refer a case to another county for investigation when the alleged perpetrator is “a minor in foster care who is also a parent/caretaker.” Even assuming HCDSS failed to follow this guideline, 10A N.C.A.C. 70A.0103(a does not affect standing, and our General Statutes provide that any county DSS director may file a juvenile petition. We reject respondent’s argument that HCDSS lacked standing to file the petition as to Travis.

We affirm the trial court’s adjudication of Travis as dependent.

In re T.C.M. (Lawyers Weekly No. 012-388-21, 9 pp.) (Chris Dillon, J.) Appealed from Hoke County District Court (Warren McSweeney, J.) Jacky Brammer for respondent; Charles Smith, Jonathan Charleston and Jose Coker for petitioner; Matthew Wunsche for guardian ad litem. 2021-NCCOA-630

Domestic Relations Parent & Child – Guardianship – Visitation Details The visitation portion of the trial court’s guardianship order meets the “basic outline” requirements of G.S. § 7B-905.1 where it supplies (1) the frequency of the respondent-mother’s supervised visitation (once per month), (2) the duration of the visits (two hours), and (3) the time (12:00 pm to 2:00 pm) and day (the first Sunday of each month) of the visits. Although the trial court did not specify where the supervised visitation was to occur or designate who would supervise the visits, the court was not required to do so.

We affirm the trial court’s guardianship order.

In the event of conflict, the order provides that the parties may bring the matter “before the court for review at any time by the filing of a motion for review…” The trial court complied with the requirements of § 7B-905.1 by providing the essential framework for the exercise of respondent’s supervised visitation.

In re A.L. (Lawyers Weekly No. 012-389-21, 8 pp.) (Valerie Zachary, J.) Appealed from Robeson County District Court (Vanessa Burton) Edward Yeager for petitioner; Robert Montgomery for guardian ad litem; Peter Wood for respondent. 2021-NCCOA-626

Domestic Relations Parent & Child – Adjudication of Neglect – FaceTime Meeting – ‘Fault’ When the Guilford County Department of Health and Human Services was investigating whether “Noah” had been subjected to injurious conditions in his mother’s care, DHHS sought to meet with Noah’s father—respondent Cannon—to assess his suitability as Noah’s caretaker. Given Cannon’s prior conviction for abusing Noah, a DHHS employee testified that DHHS needed to conduct an in-person meeting with Cannon at his home. During the two weeks that Noah was in Cannon’s custody prior to the filing of DHHS’s petition, the social worker was only allowed to view Cannon’s home through a single FaceTime conversation with Cannon. Under these circumstances, the trial court could find that Cannon refused to meet with the social worker.

We affirm the trial court’s adjudication of Noah and “Chris” as neglected.

The trial court’s adjudication of Chris and Noah as neglected juveniles was not based solely on any particular actions of their parents, nor was the adjudication based solely on improper care rendered to the mother’s other children by their caretakers. The trial court reached its conclusion based upon the totality of the children’s current circumstances and was not required to find that the parents had each affirmatively contributed to the children’s circumstances in order to adjudicate neglect. We hold that the trial court’s undisputed findings of fact regarding Chris and Noah’s circumstances, irrespective of the fault of any parent, support its adjudication of Chris and Noah to be neglected juveniles.

Based on evidence that Chris’s father, respondent McCoy, was not taking medication prescribed for his mental health conditions, refused a substance abuse screening, behaved angrily and spoke obscenities toward screening staff, was incarcerated when DHHS’s investigation began, and had previously been convicted for assault on a female, it was reasonable for the trial court to conclude that assessments regarding McCoy’s mental health, use of drugs, and domestic violence would be beneficial to a goal of alleviating any condition that contributed to causing Chris’s removal from the parental home.

Although Chris stayed with his paternal aunt, Collins, for several weeks, a home study showed that Collins lived in a two-bedroom, one-bathroom apartment with her

OPINION DIGESTS / 15

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Decem ber 20, 2021

two children and their father, did not have her own transportation, and did not have monthly income sufficient to support another child.

Moreover, the father of her children had a criminal record, and Collins called the police about a domestic dispute with him in November 2020. The trial court could find that Collins was not able to provide proper care and supervision in a safe home due to concerns regarding her “involvement with

her children’s father and his criminal record” and Collins’s “limited income.”

Affirmed.

In re C.L.M. (Lawyers Weekly No. 012-390-21, 17 pp.) (Jefferson Griffin, J.) Appealed from Guilford County District Court (Angela Foster, J.) Mercedes Chut for petitioner; Kimberly Connor Benton and Garron Michael for respondents; Michelle FormyDuval Lynch for guardian ad litem. 2021-NCCOA-627

Tort/Negligence Insurance – Failure to Procure – Civil Practice – Statute of Limitations After a 2012 accident in his personally insured Mustang, plaintiff Lunsford was faced with both civil and criminal liability. Although this situation was distressing to Lunsford, it should have alerted plaintiffs of the need to investigate

their potential insurance coverage and make certain of any applicable insurance policies as soon as possible, as it was obvious very soon after the collision that plaintiffs would be subject to substantial civil claims from both Lunsford’s injured passenger and the estate of the fatally injured driver of the other vehicle. The insurance agency defendants did nothing to delay plaintiffs from learning that plaintiff JBL Communications, Inc.’s

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16 / OPINION DIGESTS commercial policies did not provide coverage, so the statutes of limitations were not tolled on plaintiffs’ claims arising out of any failure to procure adequate insurance.

We affirm summary judgment for the insurance agency defendants.

The commercial policy issued by AMCO Insurance Co. to JBL was at all times available to plaintiffs.

During 2013 settlement negotiations with his injured passenger, Lunsford signed an affidavit stating that the only insurance coverage for the Mustang at the time of the collision was his personal policy through Travelers Insurance.

The estate of the deceased driver sued plaintiffs. By letter dated 17 May 2016, JBL’s insurer notified plaintiffs that it would provide a defense to JBL, but that its policies did not provide coverage.

Plaintiffs do not dispute the provisions of the JBL business policies or the facts as noted in the 2016 letter, which in summary, indicate that plaintiff Lunsford’s actions that evening in 2012 were “at least twice removed from any action that could be considered to be on behalf of JBL Communications.”

Plaintiffs filed this action, alleging the agency defendants wrongfully failed to procure excess insurance, on 23 February 2018.

For purposes of summary judgment, we accept plaintiffs’ contentions regarding their long relationship with the agency defendants as true, and certainly there is no factual dispute regarding plaintiff Lunsford’s criminal conviction and imprisonment or the timing of the civil claims asserted by the passenger and the deceased driver’s estate. But these circumstances do not support plaintiffs’ argument that the agency defendants somehow delayed the denial of plaintiffs’ claim for excess coverage; misrepresented or hid the lack of insurance coverage from plaintiffs; prevented plaintiffs from discovering the lack of insurance coverage; or prevented plaintiffs from filing their claims in this case sooner.

Plaintiffs have forecast no evidence that the agency defendants may be at fault for any delay in plaintiffs’ discovery of the lack of excess insurance coverage. The record indicates only plaintiffs’ own failure to be familiar with the terms of the business insurance policies issued to plaintiff JBL and to take action to address any potential question regarding applicability of the excess insurance coverage until after several years had passed.

Pursuant to Scott & Jones, Inc. v. Carlton Ins. Agency, Inc., 196 N.C. App. 290, 677 S.E.2d 848 (2009), the three-year statute of limitations for breach of contract applies to plaintiffs’ claim for failure to procure insurance. Plaintiffs’ complaint was not filed within this three-year window.

Plaintiffs’ negligent misrepresentation and bad faith claims are likewise barred by the three-year statutes of limitations applicable to those claims. Finally, plaintiffs’ unfair trade practices claim was filed outside that claim’s four-year statute of limitations.

Affirmed.

JBL Communications, Inc. v. AMCO Insurance Co. (Lawyers Weekly No. 012-391-21, 14 pp.) (Donna Stroud, C.J.) Appealed from the Superior Court in Madi-

son County (Gregory Horne, J.) Jamie Stokes for plaintiffs; Michael Medford and Brianne Glass for defendants. 2021-NCCOA-631

Domestic Relations Equitable Distribution – Valuation & Distribution – Pretrial Order – Sale Order The trial court’s equitable distribution order found, “During the course of the hearing, the parties agreed that the [marital home] would be listed for sale and the proceeds would be divided equally.” However, when she was asked how she would like the house to be distributed, the plaintiff-wife testified only, “Well, I feel like I deserve the—” before she was interrupted with an objection and counsel began arguing their conflicting positions.

There was not an agreement or binding stipulation removing the issues of the valuation and distribution of the home from the trial court’s determination.

We vacate the equitable distribution order and remand for valuation and distribution.

Not only was there no binding oral stipulation, but the pretrial order (PTO) also failed to set out a definite and certain stipulation as to the value and distribution of the marital home. In the PTO, the wife indicated that the “value” of the home was “to be sold,” but she also indicated that the home was to be given to “TBD.” Meanwhile the defendant-husband indicated in the PTO that the home was worth $319,000 and that it should be sold and the proceeds divided equally. During their arguments at the hearing, plaintiff’s counsel said the wife wished to stay in the home, but counsel did not believe the “numbers work.”

Thus, while both parties may have contemplated the home being sold, there was no stipulation or agreement. The issues of the valuation and distribution of the home were left to the trial court to determine.

On remand, the trial court is to value the home as of the date of the parties’ separation.

The equitable distribution order also lists 25 items of personal property as marital. The order does not place a value on the items but decrees that they be sold on Craigslist “or via another method if [the parties] mutually agree.”

The record reflects that the trial court did not ask the parties about the terms of any verbal agreement to sell these items. The trial court did not ensure the parties understood the legal effect and the terms of any agreement. As such, there is no valid stipulation, and the trial court was required to complete the three-step process of classifying, valuing, and distributing the 25 items of personal property.

Vacated and remanded.

Roach v. Roach (Lawyers Weekly No. 012-392-21, 16 pp.) (Jeffrey Murphy, J.) Appealed from Forsyth County District Court (Carrie Vickery, J.) Harvey Barbee for plaintiff; no appellee brief filed. 2021-NCCOA-635

Civil Practice Appeals – Rules Violations – Domestic Relations – No-Contact Order Although defendant is proceeding pro se in his appeal of a no-contact order, he is nevertheless required to fol-

N O R T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

low our Rules of Appellate Procedure.

Where (1) there is no filed-stamp on the order from which defendant appeals (or on other documents in the record); (2) defendant’s statement of the facts contains allegations and peripheral facts but no references to pages in the transcript, exhibits or any supporting documents; and (3) citations to authority in defendant’s argument section are merely to statutes and cases stating general rules, defendant’s violations of our appellate rules are so substantial that they impede this court’s ability to conduct a meaningful review.

Appeal dismissed.

McKoy v. Robinson (Lawyers Weekly No. 012-393-21, 7 pp.) (Fred Gore, J.) Appealed from Cumberland County District Court (Luis Olivera, J.) Marc Robinson, pro se; no appellee brief. 2021-NCCOA-638

Criminal Practice Possession with Intent to Sell or Deliver – Amount, Paraphernalia & Cash – Third-Party Evidence Police seized four bags of white powder, with a total weight of 9.7 grams, believing all were cocaine.

Testing confirmed that a 2.9-gram bag contained cocaine, while a 4.07gram bag actually contained methamphetamine; the other two bags were not tested. Given the multiple, separate baggies containing confirmed or suspected cocaine, totaling 5.63 grams, the recovery of digital scales along with the seized drugs, and defendant’s possession of $465 in small-denomination bills, the state presented sufficient evidence to support an inference of defendant’s intent to sell cocaine.

We find no error in defendant’s convictions for possession with intent to sell or deliver cocaine, possession of marijuana, and possession of methamphetamine.

The trial court refused to allow defendant to present evidence that defendant’s father, who was present when defendant was arrested, discarded and concealed a crack pipe and marijuana during the course of the investigation. The charges against defendant were based entirely on the drugs and related items he “[owned] up to” and the cash seized from his person. The challenged third-party evidence did not directly point to the father’s guilt and was not inconsistent with defendant’s guilt. It raised only the possibility that the father committed drug possession offenses unrelated to the charged crimes. The trial court properly excluded such evidence.

State v. Simmons (Lawyers Weekly No. 012-394-21, 12 pp.) (Richard Dietz, J.) Appealed from Surry County Superior Court (Angela Puckett, J.) Colleen Crowley for the state; Shawn Evans for defendant.

2021-NCCOA-648

Criminal Practice Post-Conviction DNA Testing – Ineffective Assistance Claim – Confession In a pro se brief, defendant contends that new DNA testing would be material to his defense because (1) “the [State Bureau of Investigation] has engaged in widespread and long-lasting [practices] of misstating the results of forensic tests … and withholding material and potentially exculpatory evidence” and (2) the original DNA tests were “insufficient” and newer testing

methods could “go a long way” to prove his innocence. But defendant confessed to police that he shot the victim.

In light of that confession, we cannot conclude that additional DNA results would be material to his defense.

We affirm the trial court’s denial of defendant’s motion for post-conviction DNA testing. We dismiss without prejudice defendant’s claim of ineffective assistance of counsel at his trial.

Defendant claims he had ineffective assistance of trial counsel because his counsel failed to move to suppress his confession or to object to its admission at trial as given involuntarily and without understanding. Whether defendant had ineffective assistance of trial counsel can only be properly determined through testimony at an evidentiary hearing below under G.S. § 15A-1420(c).

State v. Rice (Lawyers Weekly No. 012-395-21, 7 pp.) (Lucy Inman, J.) Appealed from Mecklenburg County Superior Court (Robert Bell, J.) Joseph Hyde for the state; Katy Dickinson-Schultz for defendant.

2021-NCCOA-646

Criminal Practice Ineffective Assistance Claim – Admissions of Guilt – Opening Statement & Closing Argument After a shootout at a residence known for drug sales, defendant was charged with, among multiple other offenses, conspiring to rob the home’s occupants. In his opening statement, with no notice to the trial court and no hearing pursuant to State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), defense counsel told the jury that defendant and his accomplice were “there to rob these people and they both have this ... shotgun,” thereby admitting defendant’s guilt to conspiracy to commit armed robbery, attempted armed robbery and possession of a firearm by a felon.

Furthermore, before closing arguments, a Harbison hearing established that defendant did not intend to contest the charges of conspiracy and possession of a firearm by a felon.

However, we cannot tell from the record whether defendant also consented to counsel’s subsequent admission to attempted armed robbery and discharging a weapon into an occupied dwelling.

We remand for an evidentiary hearing on whether defendant consented to counsel’s admissions of guilt in his opening statement and closing argument.

State v. Moore (Lawyers Weekly No. 012-396-21, 22 pp.) (Darren Jackson, J.) Appealed from Lincoln County Superior Court (Gregory Hayes, J.) Daniel Snipes Johnson for the state; Paul Herzog for defendant. 2021-NCCOA-644

Criminal Practice 911 Call – Non-Hearsay Purpose Police Officer Faulkner testified as to the details of a 911 call, to which he and other officers responded. Defense counsel objected on the basis of the Confrontation Clause. Defense counsel then asked for a limiting instruction regarding the 911 call. The trial court provided a limiting instruction, explaining to the jury, “The contents of the 911 call for service are being offered by the State to explain the [officers’] actions when they arrived on the scene.” The statement made

OPINION DIGESTS / 17

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Decem ber 20, 2021

by the 911 caller was an out-of-court statement; however, it was not used to prove the truth of the matter asserted. Rather, details from the 911 call were used to show why the officers responded to the call and their subsequent actions upon arriving at the apartment complex. Thus, the statement was not hearsay as used for this purpose.

We find no error in defendant’s convictions of possession of a firearm by a felon and resisting a public officer.

State v. Phillips (Lawyers Weekly No. 012-397-21, 9 pp.) (Jeffery Carpenter, J.) Appealed from Mecklenburg County Superior Court (Casey Viser, J.) Kelly Moore for the state; Michele Goldman for defendant.

2021-NCCOA-645

lowing the state to present evidence of defendant’s prior convictions for possessing a firearm.

Defendant is entitled to a new trial.

Since the trial court acted contrary to a statutory mandate, and since defendant was prejudiced thereby, the right to appeal the court’s omission is preserved, notwithstanding defendant’s failure to object at trial.

If there is no doubt that the defendant was fully aware of the charges against him and was in no way prejudiced by the omission of the arraignment required by § 15A-928(c), the trial court’s failure to arraign defendant is not reversible error. However, cases where the defendant was not prejudiced by the omission of the arraignment required occur when evidence of the defendant’s prior convictions was not introduced at trial, such as when the defendant stipulated before trial to his prior convictions.

In contrast, the trial court here did admit evidence of defendant’s prior convictions at trial. Defendant was deprived of the opportunity to admit to his prior convictions and receive the protections of § 15A928(c).

As a result, we cannot say the jury probably would have returned the same result had the proper procedure been followed.

There was evidence that the gun found in the car’s locked glove box during a traffic stop belonged to a friend of the car’s primary owner, that the friend brought the gun with him when the owner took him to chemotherapy, and that he was so

Criminal Practice Arraignment – Evidence of Prior Convictions – Preservation – Constructive Possession When the fact that “the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter,” G.S. § 15A-928(a), the trial court must arraign the defendant during trial, outside the presence of the jury, to give the defendant a chance to admit the previous conviction and thereby prevent the state from introducing evidence of that conviction. In this case, the trial court violated § 15A-928(a) by failing to arraign defendant and al-

weak after his last treatment that he must have left the gun in the glove box. However, there was also evidence that defendant was listed as an owner of the car (he cosigned the primary owner’s car loan), he borrowed the car often, and he was driving the car when it was stopped by police. There was sufficient evidence to go to the jury on the question of whether defendant had constructive possession of the gun found in the glove box.

New trial.

State v. Brooks (Lawyers Weekly No. 012-398-21, 13 pp.)

(Fred Gore, J.) Appealed from Lincoln County Superior Court (Marvin Pope, J.) Lewis Lamar for the state; Kirby Smith for defendant.

2021-NCCOA-638

Criminal Practice Search & Seizure – Probationer – Traffic Stop – Misdemeanor Speeding Because defendant was on probation when he was stopped for the misdemeanor offense of speeding 86 m.p.h. in a 70-m.p.h. zone, the officers had a reasonable suspicion that defendant was engaged in criminal activity. Therefore, defendant was subject to a search of his person and vehicle under G.S. § 15A-1343(b)(14).

We affirm the trial court’s denial of defendant’s motion to suppress.

Defendant’s argument that he had already completed the traffic crime once he pulled over and thus was no longer “[engaging]

in criminal activity” within the meaning of the statute is unavailing. Defendant’s reading would practically prohibit searches as a term of probation based on the reasonable suspicion of the commission of any crime that terminates upon initiation of a stop— even in cases where the stop was performed to conduct an investigatory search into the probationer’s commission of that very crime. We decline to adopt defendant’s proffered reading of § 15A1343(b)(14).

State v. Crandall (Lawyers Weekly No. 012-399-21, 8 pp.)

(Lucy Inman, J.) Appealed from Wake County Superior Court (Bryan Collins, J.) Neal McHenry for the state; Kerri Sigler for defendant. 2021-NCCOA-639

Criminal Practice Jurisdiction – Withdrawal of Appeal – Clerical Error A year before his trial de novo in superior court, defendant withdrew his appeal from his district court conviction. Accordingly, the superior court lacked jurisdiction to try defendant.

We vacate defendant’s cyberstalking conviction and remand for further proceedings.

Concurrence (Stroud, C.J.): In district court, defendant was tried on two charges.

He was convicted on one charge and found not guilty on the other.

The district court mistakenly

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18 / OPINION DIGESTS switched the file numbers. As a result, defendant, who was proceeding pro se, attempted to dismiss the appeal of the case in which he was found not guilty and to proceed with the appeal of the case in which he was found guilty, but the wrong file numbers were on the judgments. The superior court did not correct the transposed case file numbers.

Based on these apparent clerical errors, defendant was found guilty in district court but no longer has his right to appeal the correct judgment as the time for an appeal has expired.

By remanding to the district court, the majority opinion leaves defendant with a guilty judgment he intended to appeal. Defendant should not be entirely deprived of his right to appeal based upon clerical errors.

However, upon remand, there is the potential for a petition for a writ of certiorari in superior court to allow for further review.

State v. Fuller (Lawyers Weekly No. 012-400-21, 12 pp.) (John Tyson, J.) (Donna Stroud, C.J., concurring) Appealed from Orange County Superior Court (Bryan Collins, J.) Mary Carla Babb for the state; Napier Fuller, pro se; Sarah Ludington and Jefferson Powell for amicus curiae.

2021-NCCOA-641

Where defendant was convicted of an aggravated offense, lifetime satellite-based monitoring (SBM) does not constitute an unreasonable search under the Fourth Amendment. State v. Hilton, 2021-NCSC-115 (an aggravated-offense case recognizing the efficacy of SBM and eliminating the need for the state to prove such efficacy on an individualized basis).

We affirm the trial court’s imposition of lifetime SBM. State v. Lindquist (Lawyers Weekly No. 012-401-21, 4 pp.) (Valerie Zachary, J.) Appealed from Cumberland County Superior Court (Claire Hill, J.) Sonya Calloway-Durham for the state; Aaron Thomas Johnson for defendant. 2021-NCCOA-643

his attempted robbery conviction.

The trial court erred by failing to arrest judgment on at least one of the felonies underlying defendant’s felony murder conviction.

We vacate defendant’s sentence and remand for resentencing.

In addition to defendant’s sentence of life without parole for felony murder, the trial court consolidated four other convictions and sentenced defendant within the presumptive range for the most serious of those four offenses: attempted armed robbery. If the trial court had arrested judgment on the attempted robbery conviction, the most serious remaining conviction would be for assault with a deadly weapon inflicting serious injury.

The trial court could have arrested judgment on the assault conviction. This would have no effect on the length of the sentence defendant actually received. Nevertheless, the separate convictions may still give rise to adverse collateral consequences.

Defendant also contends that the prosecutor’s closing argument contained erroneous statements of law.

The prosecutor explained the felony murder rule by stating that if defendant were found guilty of a charged underlying offense, then by definition he would be guilty of first-degree murder. Although the jury was not legally required to reach consistent verdicts, the prosecutor’s explanation was true in that consistent verdicts would be a logical result of applying the felony murder rule.

Even if the prosecutor’s statements qualified as a misstatement of the law, the trial judge accurately instructed the jury on the applicable law and explained that it was “absolutely necessary” for the jury to apply the law as given to them by the judge.

There was no material or prejudicial error even assuming arguendo that the prosecutor misstated the law.

Vacated and remanded in part; no error in part.

State v. Driver (Lawyers Weekly No. 012-403-21, 16 pp.) (Jefferson Griffin, J.) Appealed from Mecklenburg County Superior Court (Louis Trosch, J.) Brian Miller for the state; Kimberly Hoppin for defendant.

2021-NCCOA-640

Criminal Practice

Criminal Practice

Alford Plea – Anders Brief

DWI – Reasonable Suspicion – Prior Interaction – Catering Van

Criminal Practice Search & Seizure – Lifetime SBM – Aggravated Offense

Defendant entered into a plea agreement in which his first-degree murder charge was reduced to voluntary manslaughter. On appeal, neither this court nor defendant’s appellate counsel has found any issues with merit, and the issues raised in defendant’s pro se briefs are likewise without merit.

We affirm the trial court’s judgment entered upon defendant’s plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).

State v. Lawson (Lawyers Weekly No. 012-402-21, 3 pp.) (William Wood, J.) Rory Agan for the state; Gilda Rodriguez for defendant. 2021-NCCOA-642

Criminal Practice Felony Murder – Sentencing – Underlying Felonies – Prosecutor’s Summation The jury noted on its verdict sheet that defendant’s felony murder conviction was supported by both defendant’s felony assault conviction and

When Raleigh police Sergeant Klingenmaier responded to a domestic-disturbance call, he observed that defendant appeared intoxicated, and defendant admitted to drinking. Sgt. Klingenmaier saw a white catering van with red lettering in defendant’s driveway. After defendant’s wife left, Sgt. Klingenmaier observed that the van was the only automobile at the home, and defendant was now the only person at the home. Shortly after leaving, Sgt. Klingenmaier received a second 911 call from defendant’s wife, reporting that defendant had left the home and followed her to a different location. When responding to the second call, Sgt. Klingenmaier saw what appeared to be the same white catering van with red lettering driving along Rock Quarry Road, near the wife’s reported location. Consequently, when Sgt. Klingenmaier conducted an investigatory stop of the van, he was relying on specific and articulable facts. Sgt. Klingenmaier could rationally infer

N O R T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

from these facts that defendant, in an intoxicated state, drove the van parked in his driveway to his wife’s new location, which prompted her to make the second 911 call.

We affirm the trial court’s denial of defendant’s motion to dismiss.

State v. Sanders (Lawyers Weekly No. 012-404-21, 9 pp.) (Darren Jackson, J.) Appealed from Wake County Superior Court (Vinston Miller Rozier, J.) Jodi Carpenter for the state; Daniel Blau for defendant. 2021-NCCOA-647

Criminal Practice Murder – Premeditation & Deliberation – Second Trigger Pull The state presented evidence that defendant and the victim previously had argued. On the day of the shooting, shortly after the two began arguing again, defendant acquired a gun and then continued the argument.

During the argument, despite the victim telling him he was unarmed, defendant pointed the gun at the victim’s face and pulled the trigger.

When the gun did not go off, defendant stepped back and pulled the trigger again, hitting the victim in the face and killing him. Defendant then announced either “I shot the motherf****r in the face” or “I shot him in the face.” Finally, after the shooting, defendant sought to conceal the killing in various ways, including efforts to destroy evidence and lie to law enforcement officers about his involvement. Under our precedent, this is substantial evidence from which the jury properly could infer premeditation and deliberation.

We find no error in defendant’s conviction for first-degree murder.

State v. Sturdivant (Lawyers Weekly No. 012-405-21, 5 pp.) (Richard Dietz, J.) Appealed from Onslow County Superior Court (Phyllis Gorham, J.) Francisco Benzoni for the state; Ann Petersen for defendant.

2021-NCCOA-649

Municipal Governmental Immunity – Taxation – Ultra Vires – Room Occupancy Tax – Annexation Where 1987 N.C. Sess. Laws ch.

472 § 2 prohibited Caldwell County from collecting its room occupancy tax from businesses in the Town of Blowing Rock, once Blowing Rock annexed the area in which Gideon Ridge’s Lodge was located, the county’s continued collection of room occupancy tax from the lodge was ultra vires.

Governmental immunity does not bar the claims of the town and the lodge that the county collected room occupancy tax payments which it was not authorized to collect under the 1987 act once the lodge was annexed by the town.

We affirm the trial court’s denial of the county’s motion for summary judgment on the basis of governmental immunity.

Although the town titled its claim “constructive trust,” the claim adequately alleges that the county’s continued receipt of occupancy tax payments was ultra vires and thus unlawful once the lodge was annexed by the town.

Town of Blowing Rock v.

Caldwell County (Lawyers Weekly No. 012-406-21, 9 pp.) (Jefferson Griffin, J.) Appealed from Caldwell County Superior Court (Steve Warren,

J.) Cosmo Zinkow for plaintiff; David Lackey for defendant-appellant; Frank Wilson for defendant-appellee.

2021-NCCOA-650

Domestic Relations Parent & Child – Foreign Support Order – Attempted Registration – Modification Although the plaintiff-mother tried to register the parties’ Florida child support order in North Carolina for the purpose of modification, there is no letter of transmittal in the record; there was only one certified copy of the Florida order submitted to the trial court (instead of two); there was no sworn statement by plaintiff; plaintiff’s social security number, name and address of employer, and other sources of income were not listed; and there were no descriptions of property. Plaintiff’s petition thus failed to substantially comply with the procedures set forth in G.S. § 52C-6-602. As a result, the trial court did not have jurisdiction to modify the parties’ Florida child support order.

Since the only confirmed registration before the trial court was the defendant-father’s petition to register the Florida order for purposes of enforcement only, we vacate the trial court’s order, which recalculated the child support due, and remand for recalculation of the arrearage based on enforcement of the original child support order.

After entry of the Florida order, the parties reconciled and lived together with their child for considerable periods of time. It is undisputed that plaintiff never paid the child support required by the Florida order. However, there was conflicting evidence as to whether the parties had an oral agreement that neither party would pay child support.

Therefore, the trial court did not abuse its discretion in finding there was no enforceable oral agreement between the parties to modify child support. As such, defendant had a vested right in past due child support payments pursuant to Warrick v. Hender, 198 So. 2d 348 (Fla. Dist.

Ct. App. 1967).

Perales v. King (Lawyers Weekly No. 012-407-21, 16 pp.) (Jeffery Carpenter, J.) Appealed from Wake County District Court (Anna Worley, J.) Bryant Duke Paris for plaintiff; Thomas Currin for defendant.

2021-NCCOA-634

Domestic Relations Parent & Child – UCCJEA – Lack of Service – Untranslated Order The plaintiff-Father dated and signed his petition for expedited enforcement of a Belgian custody order on July 2, 2020, citing to the factual findings of the Belgian order. However, the Belgian order was not entered until August 19, 2020.

Since the Belgian order was not yet in existence, it was a factual impossibility for Father to verify that the facts within the order were true.

Consequently, the trial court lacked subject matter jurisdiction over Father’s expedited enforcement petitions, brought pursuant to G.S. § 50A-308 of the Uniform Child Custody Jurisdiction Enforcement Act. We vacate the trial court’s order enforcing the Belgian order and awarding attorney’s fees to Father.

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The trial court also lacked subject matter jurisdiction because the foreign orders are in French or German and are not accompanied by English translations.

Although the trial court lacked subject matter jurisdiction, we address additional issues presented by this appeal.

The defendant-Mother—who was granted custody and the right to relocate the children by a German court—contends that she never received service or notice of the Belgian proceeding commenced by Father. She received only a one-page document in French that remains untranslated. Since notice was not given in accordance with the standards of G.S. § 50A-108, the trial court erroneously permitted Father to take custody of the parties’ children.

Without serving Mother with Father’s petitions, law enforcement officers went to Mother’s residence and retrieved the children when Mother was not present. Because the record does not contain any testimony regarding imminent serious physical harm or the children’s risk of being removed from this state, the trial court failed to comply with the plain language of G.S. § 50A-311.

Finally, Mother’s counsel asked to be heard on the matter of attorney fees, but a hearing was never scheduled. Accordingly, the trial court erred in awarding Father $5,000 in attorney fees.

Vacated.

Aslund v. Oslund (Lawyers Weekly No. 012-408-21, 13 pp.)

(April Wood, J.) Appealed from Mecklenburg County District Court (Christy Mann, J.) No brief filed for plaintiff; Brione Pattison for defendant. 2021-NCCOA-664

Civil Practice Appeals – Venue – Contract – Forum Selection Clause At the hearing on plaintiff’s motion to amend its complaint, defendants argued the motion was futile for the same reasons the court should grant their pending motion to dismiss for improper venue: the employment contract between plaintiff and defendant Pyrtle (an Alamance County resident) included a forum selection clause requiring suit to be brought in Texas. Although the resulting March 2020 order by Judge Lora Cubbage did not expressly deny defendants’ stillpending motion, it rejected their argument, stating that the forum selection clause was against North Carolina public policy.

Since defendants did not appeal the March 2020 order, when Judge Andrew Hanford decided defendants’ motion to dismiss for improper venue in September 2020, he properly adhered to Judge Cubbage’s ruling on the forum provision because one superior court judge may not modify or overrule the judgment of another superior court judge in the same case on the same issue.

We affirm the trial court’s denial of defendants’ motion to dismiss for improper venue.

In their conditional petition for writ of certiorari, defendants claim that they strategically chose not to appeal from the March order, based on precedent from this court that an order granting a motion to amend a complaint does not affect a substantial right and therefore is not imme-

diately appealable. No matter the reason, defendants chose not to appeal the March order, even though apparently the same substantial right, the right to the appropriate venue, was impacted when Judge Cubbage foreclosed the possibility of defendants enforcing the forum selection clause. Because Judge Cubbage’s rulings from the March order are not properly before this court, and we decline to grant certiorari review for the March order, we hold that Judge Hanford did not abuse his discretion by denying defendants’ N.C. R. Civ. P. 12(b)(3) motion for improper venue based on the inapplicability of the forum selection clause.

Assure Re Intermediaries, Inc. v. Pyrtle (Lawyers Weekly No. 012-409-21, 14 pp.) (Darren Jackson, J.) Appealed from Alamance County Superior Court (Andrew Hanford, J.) John Pueschel, Philip Mohr and Patricia Holliman for plaintiff; Robin Davis and Jonathan Crood for defendants. 2021-NCCOA-665

Civil Practice Interlocutory Appeals – Domestic Relations – Separation Agreement According to the appellant-husband, the trial court’s order—which denied his motion for summary judgment and granted in part and denied in part the appellee-wife’s motion for summary judgment—is immediately appealable because it affects the substantial right of avoiding two trials which could render inconsistent verdicts on the same factual issue. However, appellant claims the trial court’s order affects a substantial right if, and only if, the following sequence of events occurs: 1) his fraud or unconscionability claims are denied, 2) he decides to appeal that decision, 3) the appeal is heard, 4) the appeal results in a remand reinstating any or all of his claims, and 5) the trial court finds, on remand, that the parties’ separation agreement was never formed “and/or” appellant is relieved from his contractual obligations.

Appellant has not shown the trial court’s order deprives him of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.

Rather, appellant has argued that a substantial right of his may be affected if a highly specific set of circumstances were to occur. Thus, appellant has failed to show that this appeal is properly before us on the merits.

Appeal dismissed.

Addison v. Manning (Lawyers Weekly No. 012-410-21, 7 pp.) (John Arrowood, J.) Appealed from Wake County District Court (Debra Sasser, J.) Thomas Currin for appellant; James Lea for appellee. 2021-NCCOA-663

Domestic Relations Parent & Child – Custody – Modification Motion – Longstanding Conflicts – Autistic Child Although the plaintiff-Father believes passionately that the parties’ autistic son, “Sam,” should be on a gluten- and dairy-free diet, the defendant-Mother’s failure to share that belief is longstanding. Even if the parents’ conflict has escalated, since Sam is thriving within the

boundaries of his condition, Father has not shown a change of circumstances that affects Sam’s best interests.

We affirm the trial court’s denial of Father’s motion for custody modification.

Father contends that Mother exposed Sam to several individuals she was dating, one of whom she had a domestic violence altercation with. But Father does not direct us to any evidence Sam was in any danger from any person associated with Mother, and Mother immediately ended the relationship with the individual who struck her.

Thus, competent evidence supports the trial court’s finding that “neither party abuses alcohol or drugs nor places [Sam] in [an] environment of hostility or danger.”

Eubanks v. Buck (Lawyers Weekly No. 012-411-21, 19 pp.)

(Donna Stroud, C.J.) Appealed from the District Court in Pitt County (Lee Teague, J.) Gregory Duke for plaintiff; no brief filed for defendant.

2021-NCCOA-667

Real Property Real Covenant – Contribution Exemption – Day Care Facility The plaintiff-foundation’s declaration and its deed to defendant’s predecessor show that the covenant at issue – relieving defendant of the obligation to pay contributions so long as defendant operates a day care facility on the property and maintains certain buffers – runs with the land.

We affirm the trial court’s dismissal of plaintiff’s complaint seeking contributions from defendant.

A covenant is a real covenant if (1) the subject of the covenant touches and concerns the land, (2) there is privity of estate between the party enforcing the covenant and the party against whom the covenant is being enforced, and (3) the original covenanting parties intended the benefits and burdens of the covenant to run with the land.

The property at issue was part of a larger tract that is the subject of plaintiff’s Declaration of Easements and Covenant to Share Costs.

Plaintiff’s declaration and its deed to defendant’s predecessor show that the covenant touches and concerns the land. The declaration says both that its covenants benefit plaintiff and that the covenants run with the land. Plaintiff’s deed to defendant’s predecessor restricts the use of the land by requiring that it be used as a day care facility and by requiring the maintenance of certain buffers, and the deed affects plaintiff’s legal right of collecting dues from the grantee. The right to restrict the use of defendant’s property affects plaintiff’s ownership interests in the property owned by it; therefore, the covenants touch and concern the land.

The declaration and plaintiff’s deed to defendant’s predecessor show the existence of privity of estate between plaintiff and its grantee, Grand Step, L.L.C. Grand Step’s deed to defendant’s predecessor entity, Care Limited, and Care Limited’s articles of organization and articles of conversion establish vertical privity between Grand Step and defendant. Thus, the parties are in privity of estate.

Finally, the declaration states that all “covenants, conditions, and easements herein shall run with the title to Flowers’ Plantation and bind

all parties having any right, title, or interest in any portion of Flowers’ Plantation, their heirs, successors, successors-in-title, and assigns[.]”

Furthermore, the Grand Step deed states, “The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors, and assigns,” and that the “conveyance shall be subject to that certain Declaration…” This language is unambiguous in that it is indicative that the original parties intended for the covenants associated with the Grand Step deed to run with the land.

The contribution exemption provision in plaintiff’s deed to Grand Step is a real covenant. Since the contributions exemption contained in the Grand Step deed applies to defendant, and thus defendant is exempt from payment., the trial court correctly dismissed plaintiff’s claim for contributions from defendant.

Flowers Plantation Foundation, Inc. v. Care of Clayton, LLC (Lawyers Weekly No. 012-412-21, 13 pp.) (John Arrowood, J.) Appealed from Johnston County District Court (Addie Harris Rawls, J.) Lamar Armstrong for plaintiff; Alan Hewett and Marcus Burrell for defendant.

2021-NCCOA-668

Civil Practice Appeals – Default Judgment – Motion to Set Aside Defendants attempt to appeal a default judgment entered against them.

Because defendants did not move the trial court to set aside the default judgment pursuant to N.C. R. Civ. P. 55(d) or 60(b), defendants may not attack the default judgment on appeal.

Appeal dismissed.

Although defendants, who proceeded pro se for some time at the trial-court level, moved this court to “relinquish jurisdiction and remand for the trial court to hear and enter an indicative ruling” on their proposed Rule 60(b) motion to set aside the default judgment, this court denied defendants’ motion to remand.

Greenleaf Condominium Homeowners Association, Inc. v.

Forest Leaf, LLC (Lawyers Weekly No. 012-413-21, 8 pp.) (Valerie Zachary, J.) Appealed from Mecklenburg County Superior Court (Donnie Hoover, J.) Jerome Miller and Carol Austin for plaintiff; Preston Odom for defendants. 2021-NCCOA-669

Domestic Relations Parent & Child – Custody – Attorney’s Fees – Insufficient Findings Although the plaintiff-Mother presented evidence of her income and expenses, and although the trial court found that Mother had taken significant amounts out of her retirement accounts and borrowed money from her mother to pay her attorney’s fees, the trial court did not make findings that described Mother’s income or expenses.

We vacate the trial court’s award of attorney’s fees to Mother and remand for additional findings of fact regarding Mother’s means to defray the cost of litigation.

Harrington v.

Harrington (Lawyers Weekly No. 012-414-21, 8 pp.) (Lucy Inman, J.) Appealed from Mecklenburg County District Court (Paulina Havelka, J.) No brief filed for plaintiff; Gregory Hunt for defendant.

2021-NCCOA-670

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