North Carolina Lawyers Weekly November 22, 2021

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VOLUME 33 NUMBER 49 ■

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NOVEMBER 22, 2021 ■ $8.50

Firm can recoup cost of fee litigation from receiver

IN MEDIATION, NIGHT TIME CAN BE THE RIGHT TIME

■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com Ask any mediator and they’ll tell you that being the third wheel in a party of (at least) two is not always easy. It’s their job to get the party started and keep the party going, even when the ones they showed up

with might be tired of dancing.

On occasion, that means dancing until they almost drop.

“Mediation is not such that you can say, ‘I’m going to block this time or this time,” said Asa Bell, a certified mediator in Raleigh. “Some settle in three to four hours, others extend to 15, 16 hours.”

■ BY CORREY E. STEPHENSON BridgeTower Media Newswires

Saving parties “money, blood, time, and angst” is no small feat, even for an experienced litigator, said Greenville, South Carolina attorney Tom Traxler, who splits his practice at Carter, Smith, Merriam, Rogers & Traxler evenly between

A law firm may be entitled to compensation for work performed while seeking to recover fees originally incurred for legal services rendered to a receiver, the North Carolina Supreme Court has ruled in a case of first impression.

Shelly Bandy co-founded A Perfect Fit, a medical equipment company located in Carteret County, in 2014.

Bandy soon began to have suspicions about her co-founder’s handling of the company’s revenues, and in 2016 she filed a complaint and ex parte request for appointment of a receiver. The court appointed M. Douglas Goines as the company’s receiver before the case was transferred to the business court.

Goines soon became concerned that the company may have fraudulently billed nearly $12 million in claims to Medicaid and hired Womble Bond Dickinson to conduct a comprehensive audit of the company’s records.

Although Goines had paid Womble’s fees as an ordinary business expense without seeking permission, Judge Gregory P. McGuire entered an order in March 2018 requiring Goines to submit bills for outside counsel fees to the court for review going forward.

Womble submitted invoices and McGuire authorized Goines to pay them, although he clarified that Goines, not the law firm, should submit the request for authorization for payment.

A Perfect Fit ceased operations in September 2018. A few months later, McGuire asked the parties why the court hadn’t received any invoices for legal fees and expressed frustration at having to review several months of

See Dance Page 6 ►

See Recoup Page 7 ►

Excess insurer can enforce anti-assignment clause ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires Excess insurers may enforce insurance policy provisions prohibiting or restricting post-loss assignments with the clauses construed based on the actual language in the insurance policy, a North Carolina Business Court judge has ruled, resulting in a split decision for the eight excess insurers disputing payment for damage to a chicken processing facility.

On Dec. 14, 2017, a fire caused substantial damage to a chicken processing facility located in Mocksville. At the time of the fire, the facility was owned

by House of Raeford Farms, Inc., but Brakebush Brothers, Inc. was in the process of purchasing it.

Raeford had a primary insurance policy with a $20 million limit, as well as eight excess policies that provided a total of another $30 million.

Brakebush and Raeford executed a purchase agreement on July 3, 2018. As part of the transaction,

Brakebush secured the assignment of Raeford’s right to all insurance benefits, “including all rights and proceeds under its property insurance policies relating to the loss” resulting from the fire. The primary insurer provided written consent to this assignment.

Neither Brakebush nor Raeford obtained consent from any of the excess insurers prior to the assignment of Raeford’s right to collect insurance proceeds S e e E xc e s s i n s u r e r P a g e 8 ►

INSIDE VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

CASE LAW

Executive awarded $10M in discrimination suit

Woman shot by police settles suit for $250K

‘Distinct interruption’ needed for added charges

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2 / NEWS NEWS BRIEFS Judge: State must spend $1.75B to narrow education gap RALEIGH (AP) — A North Carolina trial judge has ordered the state to pay out $1.75 billion to help narrow the state’s public education inequities, angering Republicans who said the directive usurps lawmakers’ constitutional authority over state coffers.

Superior Court Judge David Lee, who is charged with overseeing corrective responses related to school funding litigation that began over a quarter-century ago, said the legislative and executive branches have been afforded every courtesy over the years to act decisively. But, he said, “this court’s deference is at an end at this point.”

The judge’s action likely will set up a constitutional showdown between the three government branches.

Lee said his order wouldn’t take effect for 30 days, giving GOP leaders at the legislature or others time for a legal challenge, which is likely. Republicans say only the General Assembly can appropriate funds in state accounts and that Lee violates the state constitution if he acts contrary to that.

The state Supreme Court ruled in 2004 in the Leandro lawsuit — named after an early student plaintiff — that while North Carolina’s children have a fundamental right to the “opportunity to receive a sound basic education” under the constitution, the state had not lived up to that mandate.

“The repeated failure by the state is a constitutional violation that has to be remedied,” Lee said during a court hearing, saying he’s hopeful the order will “minimize the encroachment on legislative authority through the least intrusive remedy that I can come up with.”

Lee’s order, which largely backs the wishes of local school boards and guardians of current students who remain plaintiffs, tells state finance officials to send enough funds to two education agencies and the health department to cover two years of a remedial spending plan that targets at-risk children.

The plan, which is based on an outside consultant’s report and input from Democratic Gov. Roy Cooper and the State Board of Education, calls for at least $5.6 billion in new education funding by 2028. That plan includes funding to improve teacher recruitment and salaries, hire more school support personnel, expand prekindergarten and boost funding to educate children in low-wealth counties and students with disabilities.

An appeal of Lee’s order would mean near-term education funding will depend on a two-year state budget bill that Cooper and Republicans could resolve as soon as next week. Cooper inserted the remedial package in his spending proposal months ago, but House and Senate budget bills fell well short of that total.

House Speaker Tim Moore and Senate leader Phil Berger said after the hearing that a judge “does not have the legal or constitutional authority to order a withdrawal from the state’s general fund.”

“This case has devolved into an attempt by politically allied lawyers and the governor to enact the governor’s preferred budget plan via court order, cutting out the legislature from its proper and constitutional role,” the Republicans said in a joint statement.

But Cooper said in a written statement that “legislators can’t simply erase this right because they don’t like it. We have an effective, court-approved roadmap for making education better in North Carolina and it’s time to get it done.”

Lawyers for the plaintiffs and their allies have said the state has shirked its responsibilities to too many children in the generation following the 2004 ruling, and there’s no excuse to act now when more than $8 billion in unused funds are in state accounts. They said Supreme Court decisions, combined with language in the North Carolina Constitution approved by voters, give Lee authority to order funds be spent without a specific law passed by the General Assembly.

Lee cited a part of the state constitution that says “the people have a right to the privilege of education, and it is the duty of the state to guard and maintain that right.”

Every Child NC, composed of advocacy groups, praised Lee’s order, adding that minority students, rural students and those learning English were among those hurt the most by school system failures: “Today is an unambiguous victory for North Carolina’s 1.5 million students, their families and the communities across the state that all benefit from strong, inclusive public schools and early education.”

The legislature’s response to the 2004 ruling received sporadic attention for more than a decade from lawmakers and a previous judge. Lee then took over, and a consultant’s report released in 2019 declared 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 N ove m be r 22, 2021

state was further away from meeting its obligations than when the first Supreme Court ruling in Leandro was released in 1997.

NCCIDS elects new chair The members of the North Carolina Commission on Indigent Defense Services have voted to appoint Dorothy Hairston Mitchell as the commission’s new chair.

Mitchell succeeds outgoing chair Darrin Jordan, who is presently serving as the president of the North Carolina State Bar. Mitchell is a clinical associate professor of law at North Carolina Central University School of Law where she teaches criminal law, and teaches and supervises students in the Juvenile Law Clinic. She also serves as the director of the Social Justice and Racial Equality Institute and as the legal director at the Center for Child & Family Health.

Mitchell has been a state bar councilor for Durham County since 2017 and has served on the Indigent Defense Services Commission since 2017 as the representative of the North Carolina Association of Women Attorneys.

At the Oct. 29 meeting, the commission also elected Art Beeler to serve as vice-chair and voted to welcome Karen Franco as a new member.

Staff reports

Lawsuit challenges N.C.’s rules on transgender ID WINSTON-SALEM (AP) — North Carolina’s requirement that transgender people undergo sex reassignment surgery as part of establishing their identity is discriminatory and does not align with a majority of states and medical organizations, according to a lawsuit filed in federal court on Nov. 16.

Three law firms joined to file the lawsuit in North Carolina’s Middle District Court on behalf of an adult and two minors.

The lawsuit said the adult plaintiff, Lillith Campos, is incorrectly identified on her birth certificate as male.

It added that another plaintiff, a young man only identified as C.B., is incorrectly identified as female on his birth certificate while a third, M.D., is a girl incorrectly identified on her birth certificate as male.

“For transgender persons, the sex designation on their original birth certificate is inaccurate because they were assigned the incorrect sex at birth. Correcting the sex designation on their birth certificate is critically important for transgender people,” the lawsuit says. “Indeed, few things are as essential to one’s personhood and regular interaction with the world as being able to accurately present one’s identity to the world.”

Named as defendants in the lawsuit are Dr. Mandy Cohen, secretary of the N.C. Department of Health and Human Services, Mark Benton, assistant secretary of public health, and Clarlynda Williams-Devane, state registrar and director of the N.C. State Center for Health Statistics. A spokeswoman for Cohen’s office said it didn’t comment on pending litigation.

Omar Gonzalez-Pagan, an attorney for Lambda Legal, said North Carolina statutes require people to have undergone sex reassignment surgery in order to correct a birth certificate. He calls the requirement “antiquated” and points to the lawsuit which says 34 states, the District of Columbia and Puerto Rico permit people to correct the sex designation on their birth certificate to accurately reflect their sex without the need for surgery.

“Ultimately, this lawsuit is about the ability of people to be recognized for who they are,” Gonzalez-Pagan said. “To not be outed by a document and to protect their privacy.”

The lawsuit seeks to have the state to declare the surgical requirement unlawful, and for North Carolina to be require to provide accurate birth certificates to transgender people born in the state without the need for surgery.

Campos, the adult plaintiff, has encountered employment discrimination, according to Gonzalez-Pagan. Her employer doesn’t provide coverage for genderaffirming care in the business’ health insurance plan, which prevents her from getting the surgery required by the state, he said.

“As a trans woman, having incorrect documentation makes me feel like a second-class citizen because I am denied the same rights as the rest of the population. It just makes me feel like I am ‘less than’ before the eyes See Page 6 ►

LAWYERS IN THE NEWS Poyner Spruill has announced the addition of an education law practice group to the firm. The practice group will be comprised of nine attorneys who come to the firm from Schwartz & Shaw in Raleigh.

Partners Katie Cornetto, Rachel Hitch, Brandon McPherson, and Brian Shaw; of counsel Laura Crumpler; and associates Dr. Amy Clay, Rachel Nicholas, Grace Sykes, and Rebecca Williams will all work out of the firm’s Raleigh office.

Samuel W. “Wes” Tripp has joined Young Moore in Raleigh. Tripp joins as an associate and focuses his practice on estate and fiduciary litigation as well as occupational licensing boards and administrative law.

Andrew J. Bosserman has joined Shumaker as an associate in its corporate, tax and transactions service line. Bosserman is also a Certified Public Accountant who formerly worked at a top 200 public accounting firm and as an IRS agent.

Andrew Kasper has joined Parry Law in Chapel Hill. Prior to joining the firm, Kasper served as a senior legal advisor to the Office of Governor Roy Cooper and general counsel to the North Carolina Departments of Public Safety and Revenue.

BAR DISCIPLINE

ROUNDUP Attorney: Katherine Heath Pekman Location: Hickory Bar membership: Member since 2011 Disciplinary action: Disbarred on Nov. 9 Background: Pekman represented clients in family law matters. In eight separate matters cited in the order disbarring Pekman, she failed to exercise reasonable diligence in representing her clients, failed to keep her clients reasonably informed about the status of their matters, failed to respond to fee disputes, failed to refund the unearned portions of advance fees paid by clients, and/or failed to provide a timely response to letters of notice in grievances filed by clients.

Previous discipline: Pekman was suspended from the practice of law for one year in February 2016 after she stopped working on a client’s case, initiated no communication with the client, failed to respond to telephone and email queries about the case, and failed to return the balance of unearned fees Pekman was holding in trust for the client’s benefit. That suspension was initially stayed for three years so long as Pekman complied with certain conditions, but in February 2019 the stay was lifted, and the suspension activated, after the Disciplinary Hearing Commission found that Pekman had failed to comply with these conditions.

Attorney: Joshua Michael Reed Location: High Point Bar membership: Member since 2016 Disciplinary action: Suspended pending the disposition of all disciplinar y proceedings on Nov. 9.

Background: Reed pleaded guilty to the of fense of at tempted coercion or inducement of a minor in U.S. District Court for the Western District of North Carolina.

Reed voluntarily consented to the interim suspension. No further information was provided.

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.

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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 Novem ber 22, 2021

Executive awarded $10M in discrimination suit ■ BY DAVID BAUGHER A federal jury has awarded $10 million in punitive damages to a white male executive who claims he was fired by a North Carolina-based health provider due to his race and his gender.

David Duvall sued Novant Health, Inc. in late 2019 under both Title VII and the state’s Equal Employment Practices Act after being dismissed the previous year from his position as senior vice-president of marketing and communications. According to the suit, he was replaced with two women, one Black and one white.

Luke Largess of Tin, Fulton, Walker & Owen, said that the U.S. Supreme Court has long established that workplace discrimination laws apply to all races and genders and that both direct and circumstantial evidence supported his client’s contentions.

Largess said some of the facts of the case revolved around a diversity campaign that began with a Luke Largess health equity pledge that Novant signed with the American Hospital Association. This kicked off a series of inclusion efforts by the company including timelines to increase diversity by 2019.

Largess said that company leadership adopted metrics that tied bonuses more strongly to diversity efforts, creating a financial incentive to terminate Duvall.

He said the defense contended that Duvall had been let go because of various incidents, including his feeling sick during a speech that necessitated his boss doing part of the presentation and his missing an all-hands-on-deck meeting.

Largess said that Duvall ultimately completed

the presentation, however, and that he was on a pre-planned vacation during the meeting, for which he designated a subordinate. Moreover, he noted that no issues were expressed to his client at the time of the incidents.

“If that’s why you are firing him, then why isn’t there any written documentation of it being a concern?” Largess said.

Novant also claimed that Duvall wasn’t adequately engaged with his team and his peers, but Largess said that engagement survey scores from a third party were high, and an evaluation from Duvall’s supervisor indicated that engagement with peers was one of his strengths. Further, Duvall had a record of success in putting together a new marketing initiative.

“We also put on evidence of David’s actual performance, and we called his boss and we walked him through commercials that were produced, awards that were won, speeches that he gave, articles that he wrote in the New England Journal of Medicine about the new marketing program,” Largess said.

Duvall also introduced testimony by a witness who alleged he was terminated by Novant after he indicated he would testify on Duvall’s behalf.

In addition to the discrimination claim, Duvall filed an ERISA claim over the timing of his firing.

Duvall was released from employment just days before his fifth work anniversary, at which point a more generous severance package was set to kick in. Largess said that claim is still active and will be reviewed by a judge next month.

Largess said he was surprised at the notoriety the verdict has gained at the national level, finding coverage from CNN to the New York Times. He said the size of the award and the current political climate over racial issues may have contributed to its

Woman shot by police settles suit for $250K ■ BY DAVID BAUGHER An innocent passenger who was shot by police after a vehicle chase involving a stolen U-Haul truck has settled a lawsuit against the Clay County Sheriff’s Office and its officers for $250,000, the plaintiff’s attorneys report.

Stephen Agan and George Hyler of Hyler & Agan in Asheville report that their client, Kelly Campbell Walker, and an acquaintance of hers had borrowed the truck from a third person in order to transport more than 50 bags of moss they had gathered in the forest. Neither Walker nor her companion was aware that the truck had Stephan Agan been due to be returned the previous day and had been reported as stolen.

When police attempted a traffic stop, the driver, who’d failed to appear in court for a misdemeanor, fled in the vehicle, with Walker trapped as an unwilling passenger.

The resulting chase saw the George Hyler driver crash through a barrier and drive onto a peninsula along the shore of Chatuge Lake despite Walker’s demands to let her out.

Walker’s lawsuit, filed in federal court, alleged that one of the sheriff’s deputies, Thomas Woodard, fired at the vehicle in two separate instances after establishing a roadblock. Although Woodward was attempting to damage the tire, shrapnel struck Walker’s leg. Agan said that at least 12 rounds were ultimately fired.

“I think three pieces of the bullet remained there until the case was settled,” Agan said.

“Part of the reason for settling was so she could get the funds to pay for surgery to have those

SETTLEMENT REPORT – PERSONAL INJURY

Amount: $250,000 Injuries alleged: Shrapnel from bullet embedded in lower left leg Case name: Kelly Campbell Walker v.

Robert Layne Deese; RLI Insurance Company; Thomas Heath Woodard; Daniel Dean Sherrill, Jr. Court: U.S. District Court for the Western District of North Carolina Case No.: 1-20-cv-0072 Date of settlement: Aug. 3 Most helpful experts: W. David Munday of Hickory (use of force), Sean Dennis of Cary (accident reconstruction), and Josh Wright of Asheville (ballistics) Insurance carriers: North Carolina Association of County Commissioners (NCACC) Liability and Property Risk Pool Attorneys for plaintiff: Stephen Agan and George Hyler of Hyler & Agan in Asheville Attorneys for defendants: Sean Perrin of Womble Bond Dickinson in Charlotte for Deese, RLI, and Woodard, and Patrick Flanagan of Cranfill Sumner in Raleigh for Sherrill removed.”

Agan said the defense claimed that the truck—which had already struck a police cruiser—presented a danger to officers and nearby Department of Transportation workers, but Agan said that Walker had been hit during the second round of shots, at which time the truck was no longer driving toward S e e Wo m a n s h o t P a g e 5 ►

VERDICT REPORT – EMPLOYMENT

Amount: $10 million Injuries alleged: Job termination Case name: David Duvall v. Novant Health, Inc. Court: U.S. District Court for the Western District of North Carolina Case No.: 3:19-cv-624 Judge: David Cayer Date of verdict: Oct. 26 Attorney for plaintiff: Luke Largess of Tin, Fulton, Walker & Owen in Charlotte Attorneys for defendant: Benjamin Holland, Elizabeth Gift, and Abby Littrell of Ogletree Deakins in Charlotte prominence. But he doesn’t feel it should be adopted as part of any cultural cause.

“I don’t see it that way,” he said. “This is just a straight discrimination case.”

He said one juror even approached him after the trial and indicated she was in charge of diversity efforts at her company, but she agreed with his client.

“She felt that Novant had not explained its decision, had not justified its decision,” Largess said.

Benjamin Holland, Elizabeth Gift, and Abby Littrell of Ogletree Deakins in Charlotte represented the defense. Littrell said the firm would probably not be issuing comment.

In national media reports, Novant has issued statements conveying deep disappointment over the decision, which it does not feel was supported by the evidence. It has said it would continue to pursue all legal options in the matter, including appeal.

Workplace fall leads to $2M settlement ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com A construction worker who was permanently injured after falling 15 feet from an unprotected stairwell onto a concrete floor has settled his workers’ compensation claim for $2,006,000, his attorneys report.

David Gantt of Gantt Law Office in Asheville and Perry Fisher of Fisher Stark in Asheville report that their client landed head-first and suffered a traumatic brain injury that left him wheelchair bound, non-verbal, and comDavid Gantt pletely dependent on his wife for daily life activities.

Pursuant to a confidentiality agreement, many details of the case have been withheld, including the names of the parties and location of the incident.

The attorneys said that their client spent five months at Mission Hospital in Asheville, Asheville Specialty Hospital, and CarePartners Rehabilitation Hospital, and later received Perry Fisher speech, occupational, and physical therapy.

S e e Wo r k p l a c e f a l l P a g e 5 ►

SETTLEMENT REPORT – WORKERS’ COMPENSATION

Amount: $2.006 million Injuries alleged: Traumatic brain injury, subarachnoid hemorrhage, skull fracture Case name: Withheld Court: North Carolina Industrial Commission Mediator: Kathy Gleason of Candler Date of settlement: Sept. 3 Most helpful experts: Cynthia Wilhelm, Ph.D. of Chapel Hill (life care plan) and Oliver Wood of Columbia, South Carolina (financial loss analysis) Attorneys for plaintiff: David Gantt of Gantt Law Office in Asheville and Perry Fisher of Fisher Stark in Asheville Attorneys for defendant: Withheld

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 N ove m be r 22, 2021

Reexamining retention strategies in the ‘Great Resignation’ era ■ BY KAREN NATZEL BridgeTower Media Newswires There’s considerable consternation around the “Great Resignation.”

This past spring, we witnessed job openings at an unprecedented 9.3 million. In August, the U.S. Bureau of Labor Statistics announced that “4.3 million Americans, or 2.9 percent of the entire workforce, quit their jobs,” according to National Public Radio.

One common thread in this workforce movement is a need to reassess what matters most. The pandemic and the rise of remote work have altered how we view our lives, UC Berkeley economist Ulrike Malmendier writes. This kind of revolutionary soul searching demands our attention and shapes our choices.

People are leaving their jobs for a variety of reasons—sometimes toward what might be, other times away from what is. Stagnation—in compensation or scope of work—has made people restless. Recently a client shared that the business nearly lost a good employee who felt underpaid and burned-out.

The employee sought relief via a new career path elsewhere, and one that the HR director knew was not a good fit. After extended conversations with the team member, the HR director was able to retain the employee by addressing compensation and revising the role to meet both the individual’s needs and the organization’s needs. She approached the issue with what was first and foremost in the best interest of the employee.

What sustains a person in the topsy-turvy times in which we live?

For many, it’s the choice of quality of life over the perceived stability of the status quo. There’s a sense that one’s

In August, the U.S. Bureau of Labor Statistics announced that “4.3 million Americans, or 2.9 percent of the entire workforce, quit their jobs,” according to National Public Radio. well-being needs to be prioritized over participation in the daily grind.

Understandably, many employers are struggling with how to address the retention issue. Business leaders are churning over which strategies might preserve their teams. Rather than grasping, handwringing or lamenting, consider this workforce shift a necessary disruption to building a stronger, healthier culture.

Think of it as an opportunity to deepen your understanding of team members and your connection to them.

Do you know what they care about? Do you know how they feel respected? Do you know their struggles? People flourish when there is purpose and a sense of belonging.

If work is meaningful, and contributions are appreciated, you have a foundation for a more satiated staff.

However, in today’s environment, more may be required. The prevalent idea for some professionals that work is the centerpiece of their identity is starting to rival the notion that meaning might be found elsewhere. Employers who understand that, make room for that, and create workplaces that honor that, will be rewarded.

Nurture a “work community.”

Whether our work is a means to an end or a cultivated identity, it can be made richer if the relationships are authentic, supportive and trusted.

Relationships are nurtured with real conversations about what really matters, by investing time and energy to get to know each other, by respecting our differences, and by keeping our agreements. Healthy team dynamics shape a sense of community that feeds the human need for connection.

An investment in people’s abilities to communicate, connect and grow is an investment in a work community.

Build in flexibility. Working from home has unearthed the possibilities of prioritizing our non-work life.

Taking care of ourselves, our families, our friends and community has emerged as essential to our wellbeing. Having flexibility in how we structure our days, how we contribute to a project, or how we deliver on our accountabilities has become an alluring approach to employee happiness. Often, this will require leaders to get clear on roles, responsibilities, deliverables, workflow and priorities so flexibility is achievable. As organizations build flexibility into their DNA, they may also gain the added benefits of being nimble and creative in their work product.

Invite engagement for your team’s sake, not the bottom line. Yes, you are in business to serve your mission and make money.

If, however, you understand what team members value and where they find meaning, you are making space for the whole person. And that whole person is more likely to feel inspired to show up in an engaged manner.

As you deepen your understanding of what makes your team tick, you are better positioned to build on See ‘Great Resignation’ Page 5 ►

"Helping lawyers practice better, more efficiently, and more profitably."

■ PUBLISHER Liz Irwin lirwin@bridgetowermedia.com ■ EXECUTIVE EDITOR Andy Owens aowens@scbiznews.com ■ EDITOR IN CHIEF David Donovan david.donovan@nclawyersweekly.com ■ EDITORIAL Heath Hamacher, Reporter hhamacher@nclawyersweekly.com Scott Baughman, Digital Media Manager sbaughman@mecktimes.com ■ ADVERTISING Sheila Batie-Jones, Advertising Account Executive sheila.batie-jones@nclawyersweekly.com ■ ACCOUNTING & ADMINISTRATIVE Michael McArthur, Business Manager mmcarthur@bridgetowermedia.com ■ CIRCULATION Disa Ehrler, Audience Development Manager dehrler@bridgetowermedia.com Circulation: 1-877-615-9536 service@bridgetowermedia.com ■ PRODUCTION & OPERATIONS Jason Reckamp, Designer jreckamp@molawyersmedia.com ©2021 BridgeTower Media. Material published in North Carolina Lawyers Weekly is compiled at substantial expense and is for the sole and exclusive use of purchasers and subscribers.

The material may not be republished, resold, recorded, or used in any manner, in whole or in part, without the publisher’s explicit consent. Any infringement will be subject to legal redress.

How to show team members you really do care about them ■ BY CHRISTOPHER F. EARLEY “The leaders who get the most out of their people are the leaders who care most about their people.”

— Simon Sinek The success of any law firm hinges on its people. No successful law firm was ever built on the backs of average team members. If team members know that you truly care about them, they can flourish. When that happens, a law firm can truly accomplish great things.

Here are some ways to show your team that you truly care about their success.

Treat your staff like gold and do nice things for them. These things do not need to be expensive. A small thing I do each Friday is buy lunch for the office. They really appreciate this.

On a “workiversary,” we will celebrate the team member to show them they are appreciated. On their birthdays, we have a party and celebrate them. These little things are so very important and make people feel really good.

Ask them how they are doing. I have quarterly conversations with each team member, rather than have the dreaded review. I take this opportunity to really dive deep to find out how the team member feels about their given role.

Show them you care by asking questions, and then listen carefully to what they say. Ask them if they feel their work makes a difference to the clients and to the world. Ask them if they feel utilized in their current role.

Find out from them if there are other ways they can be challenged.

Their responses will reveal so much that you may not even be aware of.

Give them shout outs. At our daily morning huddle, if a team member had a win the day before, I make a point to highlight it in front of the group. It brings an instant smile. People want and need to feel appreciated.

Receiving praise in a group setting can really make a team member’s day and make them feel special.

Pay them what they deserve. Never, ever be cheap with great employees.

If you have someone who is doing a really good job, pay them enough so

that they don’t leave you for someone else who is willing to pay them what they are worth.

You get what you pay for. If you want to get the very best out of someone, you need to show them you care about them by compensating them well.

Coach them up. You want to get the very best out of each team member. That does not happen by hope or by chance, but by intention. The only way to get team members to reach their full potential is by coaching them up.

This is an ongoing effort. Show them you care and that you want them to always succeed, and that you see their true potential (which they may not see themselves). If they do something great, tell them what they did right. If they do something wrong, tell them how to do it right the next time, while reminding them how good a job they do overall.

Christopher F. Earley is a Boston attorney and author who concentrates his practice on the representation of the seriously injured and their families.

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NEWS / 5

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 Novem ber 22, 2021

‘Distinct interruption’ needed for added charges ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com Prosecutors must prove that there was a “distinct interruption” between the events that led to each criminal charge before they can charge a defendant with multiple assaults, the North Carolina Supreme Court has ruled in a case of first impression.

Justice Robin Hudson, writing for the court in its Oct. 29 decision, said that while the Supreme Court had never previously considered where one assault ends and another begins, the state’s Court of Appeals has held several times that “the evidence must establish a ‘distinct interruption’ in the original assault followed by a second assault … deemed separate and distinct from the first.’”

“But it is not always easy to determine when a ‘distinct interruption’ has occurred,” Hudson wrote.

Similar acts, different places

A Carteret County jury convicted Jeremy Dew of several crimes after Dew beat his girlfriend, first inside her parents’ Atlantic Beach home and then again in a car as they drove to their own home in Sims. According to court records, Dew and the victim were outside socializing when Dew became furious after seeing his girlfriend dancing with her cousin.

Back inside the home, Dew “hauled off and hit her upside the head,” the victim said, the beginning of a beating that lasted for approximately two hours and included kicking, biting, head-butting, and strangling until the victim vomited. After the beating, Dew made the victim remove the blood-stained sheets from the bed and clean the mattress cover before loading up their belongings and Dew’s 4-year-old daughter and driving home.

The victim said that Dew assaulted her during the ride, punching her, “jacking [her] up,” and threatening to push her out of the vehicle. During the beatings, the victim suffered a concus-

sion, nasal fracture, and ruptured ear drum that required two surgeries to repair.

Dew was convicted of kidnapping and three of five assault charges against him: assault with a deadly weapon inflicting serious injury (AWDWISI) for the ruptured eardrum, AWDWISI for the fractured nose, and assault on a female for the head butt.

inflicted wounds on different parts of victim’s body.

And in State v. McCoy (2005), the court ruled that a defendant could be charged with multiple assaults where they took place on multiple days, but not where assault arises “from a single continuous transaction on one of those days.”

Separate and apart

The court then turned to defining “distinct interruption,” pointing to three factors established by State v. Rambert, a 1995 state’s Supreme Court case upon which the Dew prosecutors argued the court should rely.

The Rambert court held that three gunshots warranted three assault charges because: (1) the defendant employed his thought processes each time he fired, (2) each act was distinct in time, and (3) each bullet hit the vehicle in a different location.

While Rambert was the most closely analogous case to Dew’s, Hudson wrote, the high court declined to extend it to assault cases generally, finding that distinct crimes require a distinct analysis.

“Discharging a firearm means firing a shot; each distinctly fired shot is a separate discharge of a firearm,” Hudson wrote. “The same is not true of assault which, as explained above, might refer to a single harmful contact or several harmful contacts within a single incident.”

In a non-exhaustive list, the court offered examples of evidence which could qualify as a distinct interruption, including an intervening event, a lapse of time in which reasonable person could calm down, an interruption in momentum of attack, a change in location, some other clear break delineating the end of one assault and beginning of another, or—depending on the totality of circumstances—different methods of attack.

The court felt compelled to also offer factors that alone might not constitute a distinct interruption and thus per-

On discretionary review, the Supreme Court considered whether the trial court had erred by denying Dew’s motion to dismiss all but one assault charge. Dew argued that the court should not have affirmed multiple counts of assault where multiple blows and multiple injuries resulted from a single episode.

“Accordingly, we must examine whether, in the light most favorable to the State, there was substantial evidence of each essential element of each of these instances of assault on a female or assault inflicting serious injury,” Hudson wrote.

An essential element of AWDWISI and assault on a female is “an assault,” the high court noted, a common-law crime not statutorily defined by North Carolina law. Leaning on definitions from Black’s Law Dictionary and its 1967 ruling in State v. Roberts, the court determined that one punch or several punches within a single fight can be considered a single assault.

As such, Hudson wrote that the court must look beyond the number of physical contacts to determine whether multiple assaults have occurred. It cited three appeals court cases in making that determination. In State v. Brooks (2000), the court held that a defendant could be charged with only one count of assault where no evidence showed a “distinct interruption” between gunshots.

In State v. Littlejohn (2003), the court found that a defendant could be charged with two counts of assault where they were distinct in time and

What is and what isn’t?

mit the state to stack charges, such as the presence of multiple and distinct injuries or the magnitude of the harm, though they may be considered during sentencing.

To leave ambiguity in the law, Hudson wrote, would “abdicate our responsibility to interpret the laws passed by the legislature in accordance with their plain meaning and intention.”

Here, the General Assembly may have intended for cases with this fact pattern to potentially warrant multiple charges.

“In the light most favorable to the State, we conclude that there could be sufficient evidence of a distinct interruption between assault(s) in the trailer and the assault(s) in the car to submit the issue to the jury,” Hudson wrote.

Justice Phil Berger did not participate in the consideration or decision of the case.

The issue was a novel one for the high court, but T. Greg Doucette of Durham said that it follows established “continuing offenses” concepts covered in law school such as statutes of limitations—there is no statute of limitations where a defendant continues to possess contraband, for instance—and felony murder—where a defendant continues to engage in crime until they retreat to a place of safety.

“Here, the court applied a straightforward analysis of the doctrine based on what a jury could conclude from the evidence presented,” Doucette said. “I hate to say that anything is ‘common sense’ in law, but this strikes me as a common-sense ruling.”

Assistant Attorney General Wes Saunders represented the state. Assistant Appellate Defender Daniel Shatz represented the defendant.

The 19-page decision is State v. Dew (Lawyers Weekly No. 010-117-21).

The full text of the opinion is available online at nclawyersweekly.com.

Follow Heath Hamacher on Twitter @NCLWHamacher

WOMAN SHOT /

WORKPLACE FALL /

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C o nt inu e d f r o m 3 ►

the roadblock.

“The federal case law in the Fourth Circuit is clear,” Agan said.

“When you are using lethal force in the form of shooting at a vehicle with occupants inside, there must be imminent danger to a person at the time of the shooting, not some hypothetical area where someone could potentially get hurt in the future.”

Agan said that the county’s chief deputy sheriff, Daniel Sherrill, also had his weapon out but did not fire at the fleeing truck. Sherrill was later dismissed as a defendant.

“His statement at the deposition was that he didn’t think this was worth killing anybody over,” Agan

said.

Agan said that there was no threat at the time that justified using a deadly weapon. He indicated that the statement of one of the transportation workers on the scene emphasized the point.

“His comment was that he thought it was all funny until they started shooting,” Agan said.

The settlement was agreed to on Aug. 3. The county’s risk pool will pay the settlement.

Sean Perrin of Womble Bond Dickinson represented Woodard, Clay County Sheriff Bobby Deese, and the insurer. Patrick Flanagan of Cranfill Sumner represented Sherrill. Neither returned a request for comment.

The client’s employer did not provide workers’ compensation at the time, the attorneys said, so they had to find coverage and place the largest financial burden on the general contractor.

Gantt said that intermediate and general contractors who use “low-cost subs” are subject to assuming full financial responsibility when workers are injured while working for “irresponsible companies” that fail to purchase workers’ compensation insurance.

Gantt said that obtaining the recovery was only part of the challenge because they had to structure the recovery to address competing demands of past and future benefits and current needs. The attorneys consulted with

several law offices to coordinate the settlement distribution so that their client could continue to receive Social Security Disability and Medicare/Medicaid coverage and “achieve the best quality of life possible based on his unfortunate circumstances.”

“I have a new appreciation for NCGS 97-19 [the section of the Workers’ Compensation Act governing the liability of principal contractors] that provides uninsured workers with substantial coverage for work-related damages, even if their employer does not have proper insurance,” Gantt said.

Kathy Gleason of Candler mediated the settlement, which was agreed to on Sept. 3.

Follow Heath Hamacher on Twitter @NCLWHamacher

‘GREAT RESIGNATION’ / An invitation to think differently C o nt inu e d f r o m 4 ►

their strengths and invoke their best selves.

None of this negates the value in making work meaningful. And it is still essential to find the right fit, to cultivate potential, and inspire excellence. These strategies will likely

never go out of vogue. It simply acknowledges the reality that work alone neither defines nor satiates someone.

Derek Thompson of The Atlantic writes that the Great Resignation is ushering in “a centrifugal moment in American economic history.” He believes it’s needed.

“Gimme an economy with more quits, more migration, and more entrepreneurship,” he writes. “It will be better for workers, for families, for productivity, and for technological development and innovation.”

If organizations embrace the shifting landscape of the workplace and the needs of its people, the conversa-

tion of retention will change fundamentally. The invitation is to think differently, and to think in terms of what will make life better.

Karen Natzel is a business therapist who helps leaders create healthy, vibrant and high-performing organizations. Contact her at 503-806-4361 or karen@natzel.net.

6 / 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 N ove m be r 22, 2021

DANCE / You don’t do justice to the process if you rush it C o nt inu e d f r o m 1 ►

mediation and litigation. Traxler ranks litigation the more stressful of the two, saying that he has never woken up at 2 a.m. worried about a mediation.

Then again, there are times when 2 a.m. rolls around and he hasn’t gone to bed yet.

“Sometimes, mediations break down or maybe they settle before lunch,” Traxler said. “Sometimes they go into the night. When I leave the house in the morning, I tell my wife, ‘I have a mediation today and I will see you when I see you.’”

“We push through, however, we have to because momentum can be lost if we adjourn. If parties can’t talk, they can’t begin to settle. Sometimes things take time to ripen.”

Dancing longer, stronger

Part of pushing through a marathon mediation is sacrificing one’s own daily rhythm—sunlight, exercise, food—for the greater good.

Making progress toward a settlement feels great, but it doesn’t fill an empty stomach.

“When we hit the witching hour and people are tired and hungry, things can go south in a hurry,” Traxler said. “One value of a mediator is to sense when people are getting sour and to figure out how to keep momentum going.”

In the new climate of online mediations, some of these stressors can be mitigated.

While the jury is split regarding video conferencing, even traditionalists acknowledge that platforms such as Zoom and Webex allow them to better serve their clients in situations where proximity might do more harm than good.

“When extended mediations are virtual, parties are often in their own homes or offices so they are usually

C o nt inu e d f r o m 2 ►

of the state,” Campos said in a news release.

C.B. has witnessed classmates being singled out for bullying, while M.D. was playing on a softball league until her county told her she couldn’t play on a girl’s team because her birth certificate didn’t reflect who she is, Gonzalez-Pagan said.

The lawsuit also points to a contradiction in state regulations. North Carolina does permit transgender people to correct their sex designation on their driver license and state identification cards to accurately reflect their sex without a requirement to undergo a surgical procedure.

Also, the lawsuit says the state’s requirement for surgery is inconsistent with mainstream medical organizations, such as the American Medical Association.

“North Carolina’s Surgical Requirement is not supported by any compelling, important, or even legitimate government interest,” the lawsuit says.

N.C. AG files suit over kid-friendly e-cigarettes RALEIGH (AP) — North Carolina Attorney General Josh Stein announced on Nov. 16 that he is suing

more comfortable,” Bell said.

Traxler said that he prefers being in the same room, rather than a breakout room, for mediations but that as they wear on, a familiar setting can help keep parties from wearing out.

“With video conferencing, people can get something to eat and move around more and be more relaxed than when they are locked in a conference room all day,” Traxler said.

That means that, for good or ill, online mediations have the potential to keep parties at the table after traditional mediations might have broken up, as there’s less pressure to call it a night and go home if everyone is already at their homes. So how, then, should attorneys make the best use of this time to break impasses—ideally without going into the wee hours? Mediators had consistent recommendations for litigants.

It begins with preparation, which means being familiar with the facts and documents, as well as having a plan for negotiating toward the settlement terms you’re shooting for.

Too much reliance on improvisation increases the likelihood of a long night.

“On mediation day you probably will have to be flexible, but it’s a lot easier to adjust an existing plan than it is to make the whole thing up as you go,” said Steve Dunn, a certified mediator with Miles Mediation in Charlotte.

Lawyers should also avoid threats or chest pounding and shoot straight with both their clients and the mediator, informing the former about the process and setting realistic expectations and not posing or posturing too much for the latter. Whenever possible, refrain from drawing a line in the sand unless it absolutely is the bottom line.

“I have seen too many lawyers lose

a chance to settle because they spent too much time asserting unsellable, untenable positions,” Traxler said.

Bell said that he once believed that one should say what they mean and mean what they say, a stance that he has refashioned in his role as a dance partner constantly cutting in.

“When I began practicing, I realized that negotiations are a dance,” Bell said. “The process of mediation … helps walk the parties through this dance.”

the founders of an e-cigarette maker over his concerns that their product is being marketed to children through kid-friendly flavors and poor age verification.

Stein announced at a news conference that he is suing Juul founders James Monsees and Adam Bowen.

He also said he is launching a statewide investigation into several e-cigarette manufacturers, distributors and retailers.

“All companies and individuals involved in manufacturing, distributing and selling e-cigarettes in North Carolina should hear this message loud and clear,” Stein said. “If you get North Carolina’s teens addicted to nicotine, there will be consequences.”

In June, Juul Labs Inc. was to pay $40 million to North Carolina and take more action to prevent underage use and sales under the terms of an agreement with the state. Stein had sued Juul previously, accusing it of employing unfair and deceptive practices that targeted young people to use its vaping products, which deliver addictive nicotine. The lawsuit was scheduled to be heard in July.

A Juul spokesman had no immediate comment on the latest lawsuit.

Stein also targeted another ecigarette company that he said sells kid-friendly flavors such as chocolate milk and strawberry doughnut. He also said his investigation would look

into retailers statewide which are located near middle schools and high schools who are selling e-cigarettes, three distributors and one online seller.

The attorney general said he would urge Robert Califf, nominated to be commissioner of the Food and Drug Administration by President Joe Biden, to create national, industry-wide regulations on flavored ecigarettes.

It can be a slow dance, though

Suppositional overtime notwithstanding, facilitating another’s dispute and helping to fashion a resolution through acute legal prowess and sheer tenacity can have its upside.

While part of an adversarial system, many say that mediating is more collaborative and allows for more creative legal remedies than those found in a courtroom.

And rather than fighting for a specific cause or advocating for a specific outcome, mediators are looking to get all parties on the same sheet of music—even if they aren’t singing the same tune.

“It’s very uplifting to help people solve a problem and see the sigh of relief that it is finally over,” Traxler said.

Of course, exactly when the afterparty can begin is anyone’s guess.

As a former plaintiffs’ attorney whose dance card now stays full with alternative dispute resolution, Bell said that one way that he helps choreograph a smooth, optimized conciliation is to request a premediation statement from all parties to help identify and target issues and potential sticking points.

Like dancers in sync, communication, trust, and flexibility are paramount to successful mediation. Bell said that developing a rapport with each party can help guide them (al-

N.C. math experts, voters sue over redistricting RALEIGH (AP) — Another lawsuit challenging North Carolina’s latest round of redistricting has been filed, this time by a conservation group, university mathematicians and voters who accuse Republican mapmakers of illegal partisan and racial gerrymandering.

The litigation, spearheaded by the North Carolina League of Conservation Voters, opposes both the state’s congressional and General Assembly districts. That’s in contrast to two previously filed lawsuits, one of which focuses on the congressional plan and the other on procedures in forming state House and Senate districts.

The plaintiffs in part accuse Republican legislators of violating the

beit slowly sometimes) toward the center of the dance floor.

“You seek to allow the process to work, whatever amount of time that takes,” Bell said. “You really don’t do justice to the process if you rush the process.”

Dunn has orchestrated hundreds of settlements and said that despite the trials of harmonizing opposing parties until the proverbial curtain closes, mediation offers the joys of lawyering without the ongoing responsibility for the case.

But mediation day is every bit as “tiring and taxing” as taking a deposition or being in trial because few cases, predictably, “have an easy and obvious solution.” And while it’s business up front for mediators, constantly waltzing from room to room and interposing themselves into the affairs of another, the parties can party in the back while spending half the day “just chilling.”

After litigating for more than 20 years, Dunn said that he enjoys the ability to control his own calendar, though he can no longer anticipate clocking out when court adjourns.

“The latest that I’ve gone is 3 in the morning and I’ve had several go until 2 in the morning,” Dunn said. “But an important part of the job is you’re the person who has got to cheerlead that thing across the finish line. And if that means going late, we’re going late.”

Bell said that while lengthy mediations are not inherently good, they are often likely to end in resolution.

“If a case is truly impossible to settle, it doesn’t take all day to figure that out,” Bell said. “If we are going late, it means that everyone is invested in the process and still has hope.”

Sometimes, that means dancing the night away.

Follow Heath Hamacher on Twitter @NCLWHamacher

state constitution by parceling out portions of the state’s large urban counties into districts that appear to favor GOP congressional candidates.

General Assembly lines also appear to group Black voters excessively in some districts while fracturing Black voting blocs across others in a method to dilute their electoral power, according to the lawsuit filed on Nov. 16 in Wake County Superior Court.

The result, the plaintiffs say, likely will help Republicans retain their majorities in both the House and Senate and hold at least nine of the state’s U.S. House seats in 2022, even as North Carolina is considered closely divided when it comes to statewide elections. North Carolina gained a 14th congressional seat due to population growth measured by the 2020 census. Republicans currently hold an 8-5 seat advantage.

The maps frustrate the League’s “efforts to build a pro-environment majority, and undermine NCLCV’s ability to hold legislators accountable,” the lawsuit says.

Republican legislators have repeatedly defended the new boundaries approved this month as lawful, and in keeping with state courts that signed off on approved lines that were drawn without the examination of race-based data or election results.

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NEWS / 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 Novem ber 22, 2021

RECOUP / Court declines to adopt per se rule against fees C o nt inu e d f r o m 1 ►

bills at once.

Goines submitted all of Womble’s outstanding invoices, totaling approximately $70,600 in fees. McGuire declined to approve payment of $59,355 over “flagrant disregard” for the requirements imposed by his order, which he said should be borne by the law firm.

Several invoices were subsequently submitted seeking legal fees for the appeal of the fee recoupment.

McGuire denied all but one and wrote that attorneys’ fees related to fee recoupment would benefit only Womble and reduce the assets of Perfect Fit. Womble appealed all the orders denying the receiver’s request to pay its fees. In an Oct. 29 opinion written

by Justice Anita Earls, the Supreme Court unanimously reversed those orders, holding that denying the requests simply because the attorneys failed to comply with procedural requirements imposed by a prior court order was an abuse of discretion.

“While a court generally possesses the authority to impose monetary sanctions on an attorney for failing to comply with a prior court order under appropriate circumstances, the Business Court could not impose sanctions against [the lawyer] and Womble without providing them with notice of the basis for imposing sanctions and an opportunity to be heard, and not on the basis of conduct which the record demonstrates did not violate the order [the lawyer] purportedly disregarded,” Earls wrote.

‘Not a permissible justification’

Payment for legal services for a receiver in connection with the administration of a receivership is subject to trial court review and approval, Earls noted.

“A trial court’s discretion to grant or deny a receiver’s request for authorization to pay fees to retained outside counsel is generally limited to (1) determining whether outside counsel rendered ‘services which require legal knowledge and skill and which were rendered to the receiver for the benefit of the receivership’ and (2) determining the amount which comprises ‘reasonable and

C o nt inu e d f r o m 6 ►

The mathematicians and others who sued endorse alternative plans they say are based on computer algorithms that follow state law and “traditional, neutral” redistricting principles. They would give Democrats the chance to be more competitive and hold seat majorities, according to the plaintiffs.

The plaintiffs, who also include former longtime Democratic Rep. Mickey Michaux of Durham, do not seek “to favor any political party or incumbent,” the lawsuit reads. Rather, they “support fair maps drawn with advanced science and technology that preserve every North Carolinian’s right to vote in free elections on equal terms and that do not discriminate against voters based on race or party.”

The lawsuit asks the judges hearing the case to order their remedial plans be used in the 2022 elections if lawmakers can’t redraw lawful maps

“Allowing the Business Court to deprive Womble of fees its attorney earned without notice and an opportunity to be heard as a sanction for its attorney’s conduct would violate Womble’s due process rights as ‘guaranteed by the Fourteenth Amendment of the United States Constitution.’”

Justice Anita Earls

proper compensation for’ the services outside counsel performed,” she wrote.

But the order denying the receiver’s request to pay Womble did not enter findings of fact addressing either of these two issues, she said.

“Instead, the Business Court denied the receiver’s request for authorization solely based upon what the court perceived to be the receiver’s and [the lawyer’s] failure to adhere to the requirements of its prior order dictating how invoices for attorney’s fees should be submitted to the court,” Earls wrote. “Absent any explanation as to how this finding related to the Business Court’s assessment of the legal services [the lawyer] provided to the receiver, or to what would comprise reasonable and proper compensation for those services, this is not a permissible justification for denying a receiver’s request to authorize the payment of fees to outside counsel.”

By answering the question of whether Womble was entitled to recoup its fees solely by reference to the purported failure to comply with a court order—rather than by conducting an analysis of the legal work performed for the receiver—the business court’s decision constituted an abuse of discretion, she said.

Earls also found that the business court impermissibly imposed sanctions on Womble without providing notice and an opportunity to be heard.

“Although the Business Court did ‘express[] its frustration’ regarding what it viewed to be the receiver’s and [the lawyer’s] tardiness in submitting fee invoices, the court did not provide notice to the parties that it

was considering imposing sanctions and did not provide ‘notice of the bases of the sanctions,’” Earls said. “Allowing the Business Court to deprive Womble of fees its attorney earned without notice and an opportunity to be heard as a sanction for its attorney’s conduct would violate Womble’s due process rights as ‘guaranteed by the Fourteenth Amendment of the United States Constitution.’”

Further, the finding that the lawyer disregarded the requirements imposed by the order on attorney’s fees was unsupported by the record evidence. The order required the receiver to submit invoices to the court and expressly forbade outside counsel from submitting the request for authorization of payment.

“Whether construed as an order refusing to authorize the receiver to pay Womble’s fees or as an order imposing sanctions on Womble for [the lawyer’s] failure to adhere to the requirements of a prior court order,” the order is legally deficient,” Earls concluded.

The court reversed and remanded for consideration of whether Womble’s lawyer rendered services which required legal knowledge and skill, were rendered to the receiver for the benefit of the receivership and the amount which comprised “reasonable and proper compensation for” any such services.

quickly, and suggests the March 8 primaries could be delayed. Candidate filing is set to begin Dec. 6.

GOP legislators agreed this year to prohibit the use of election or racial data when drawing boundaries.

Republicans also cited earlier federal court findings they say show there wasn’t sufficient evidence to declare North Carolina has racially polarized voting, so special attention to racial data wasn’t required.

While the U.S. Supreme Court ruled in 2019 that federal courts cannot overturn maps on the basis of extreme partisanship, state courts aren’t subject to the decision. Later that year, orders by North Carolina state judges finding excessive partisanship violated the state constitution led to the redrawing of both legislative and congressional maps for use in the 2020 elections.

A lawsuit by the North Carolina NAACP, Common Cause and four individuals filed Oct. 29, before the new boundaries were drawn, chal-

lenged the legislators’ refusal to consider racial data before considering proposals for General Assembly districts. And a Nov. 5 filing by a group of voters who challenged the constitutionality of congressional maps approved in 2016 contests the latest congressional maps.

Fee-litigation fees possible

Finally, Earls determined that the business court erred in denying the receiver’s request to pay Womble’s fees for its fee-recoupment litigation solely on the basis that authorizing payment would deplete A Perfect

Group says state kept magazines from inmates RALEIGH (AP) — A human rights group is suing the North Carolina Department of Public Safety alleging its staff censors magazines inmates receive by mail, especially those with articles about prison misconduct.

Human Rights Defense Center in Florida filed the suit in U.S. District Court on Nov. 12, The News & Observer reported. The nonprofit publishes Prison Legal News and Criminal Legal News, which focus on inmates’ rights, court rulings and other crimi-

Fit’s assets.

A trial court’s decision to grant or deny a receiver’s request to pay outside counsel’s fee litigation fees requires a fact intensive inquiry, she explained, and is not susceptible to a per se rule. While she expressed no opinion on the propriety of authorizing payment of fee-litigation fees as a general matter, the business court failed to make factual finding supporting its repeated denials of the receiver’s requests for authorization to pay Womble’s fee litigation fees.

The only reasoning the business court provided was “the erroneous presumption” that legal services rendered in the furtherance of any outcome which would result in the diminution of a receivership’s assets is necessarily contrary to the interests of the receivership, Earls said.

“As this court has previously recognized, there may be circumstances under which an attorney’s actions benefit a receivership even without contributing to an increase in the receivership’s assets,” Earls wrote, and “applying a per se rule prohibiting attorneys from recouping fee-litigation fees could ultimately harm parties in need of able legal representation by reducing the pool of attorneys willing to provide vigorous representation on critically important matters.”

In a case—such as the one at hand—where there has been no finding that outside counsel’s fees were unreasonable, “the mere fact that authorizing the receiver to pay counsel’s fee-litigation fees will diminish the receivership’s assets does not itself establish that counsel’s services were not rendered for the benefit of the receivership,” Earls wrote.

She reversed the business court’s denial of payment and remanded for reconsideration of the applications for authorization to pay the fee-litigation fees under the proper legal standard.

Philip J. Mohr of Womble Bond Dickinson of Greensboro, who represented the receiver and the law firm, did not respond to a request for comment. No brief was filed by the other parties.

The 20-page decision is Bandy v.

A Perfect Fit for You, Inc. (Lawyers Weekly No. 010-123-21). The full text of the opinion is available online at nclawyersweekly.com.

nal justice issues and circulate to 232 people in state correctional facilities.

The group claims that 23 magazine issues or annual reports were banned between 2019 and August.

The department’s policy allows material to be kept from offenders because of “threats to institutional safety and security,” but the content can’t reasonably be considered to contain such threats, the lawsuit states.

Last month, a contractor began converting prisoners’ letters to digital files, but it doesn’t handle magazines.

The nonprofit claims the state violated its free speech and denied access to readers without notice or opportunity to appeal. It argues the department is suppressing its political message and costing subscriptions.

It seeks a declaration that such actions are unconstitutional and an end to the practice.

The department doesn’t typically comment on pending litigation, a spokesman said.

8 / 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 N ove m be r 22, 2021

EXCESS INSURER / Provision is enforceable under state law C o nt inu e d f r o m 1 ►

under the policies. Brakebush then began to seek payment for damage done to the facility. After exhausting the $20 million in primary coverage, Brakebush demanded payment of an additional $27.7 million. The excess insurers agreed to pay only a combined $4.2 million.

Brakebush filed a complaint asserting a claim for a declaratory judgment regarding the obligations of the excess insurers, along with claims for breach of contract, bad faith, and unfair and deceptive trade practices (UDTP).

The case was designated a mandatory complex business case. Once in Business Court, the excess insurers filed a motion to dismiss or strike, arguing that Brakebush lacked standing to seek coverage because Raeford failed to obtain consent before assigning its right to collect proceeds under the policies.

While Judge Mark Davis agreed with the excess insurers that they had the right to enforce anti-assignment clauses in their insurance policies, his examination of the eight policies at issue found only three excess insurers used language that required insurer consent before the assignment could become legally effective.

“Based on a careful review of applicable case law, the court concludes that insurance policy provisions prohibiting or restricting post-loss assignments are enforceable under North Carolina law,” Davis wrote. “Any such anti-assignment clauses are therefore to be construed based on the actual language contained in the insurance policy.”

Did Brakebush have standing to

seek coverage under the excess policies?

The excess insurers argued to the negative, telling the court that each policy contained a provision requiring the consent of the insurer before a policyholder may validly assign its rights to collect proceeds under the policy and that no such consent was ever obtained by Raeford.

Brakebush countered that North Carolina law doesn’t allow for the enforcement of anti-assignment clauses in an insurance policy with regard to the post-loss assignment of proceeds, and that even if such clauses were enforceable as a general proposition, none of the excess policies actually contained the necessary language to prohibit the assignment at issue.

Finding no support for the broad proposition that insurance policy provisions prohibiting or restricting post-loss assignments are per se unenforceable under state law, Davis rejected Brakebush’s position. Case law relied upon

by Brakebush was misplaced, as it was based on an interpretation of the specific language used in the policy at issue in that case, he said.

Nor did the excess insurers waive any anti-assignment provisions by paying the $4.2 million prior to litigation, as the payment was issued pursuant to an express reservation of rights.

Davis also rejected the excess insurers’ argument that because the excess policies “follow form” to the primary policy, each of the excess policies required written consent by the excess insurers with regard to any assignments.

“The most basic flaw in this argument is that based on the court’s review of the primary policy, it does not appear to actually contain any anti-assignment

language (or any policy language that would otherwise require the consent of the primary insurers to any assignment of rights under the policy),” he wrote.

Davis then analyzed the pertinent language in each of the excess policies. Three of them required the insurer’s written consent to effect any transfer of rights, including an assignment of the right to seek post-loss proceeds. Each of those excess insurers were therefore dismissed from the suit, as Brakebush lacked standing with regard to their policies.

The remaining five policies lacked such explicit language, however. For example, one policy stated that a policyholder was “only authorized to make changes in the terms of this policy with the companies [sic] consent. The policies [sic] terms can be amended or waived only by endorsement issued by us and made part of this policy.”

Davis found this provision to be ambiguous with regard to whether it requires the consent of the insurer to an assignment of the right to recover post-loss proceeds, and since ambiguities in an insurance policy must be construed against the insurer, “the court concludes that this provision did not require Brakebush to obtain [the insurer’s] consent in the present case.”

He made similar determinations with regard to the other four policies, denying the excess insurers’ motion to dismiss the declaratory judgment and breach of contract claims against them.

Brakebush can move forward with its bad faith and UDTP claims against those five excess insurers, Davis said.

“By virtue of the assignment from Raeford, Brakebush stepped into Raeford’s shoes with respect to the right to collect

post-loss proceeds under the excess policies,” he wrote. “The excess insurers have not cited any case from North Carolina’s appellate courts holding that a bad faith or UDTP claim was barred under the circumstances presented here.”

Additionally, public policy concerns about third-party suits against insurers were unwarranted, he said, because as Raeford’s assignee, Brakebush was the only party who possessed a valid legal interest in collecting post-loss proceeds from the fire and the excess insurers were not faced with the prospect of receiving demands from both the named insured and an adverse claimant.

“Moreover, a contrary ruling would mean that even though a party in Brakebush’s position possessed a legal right as an assignee to seek proceeds under an insurance policy, it would lack any remedy in tort for bad faith conduct by the insurer,” Davis wrote. “Such a result would run counter to the goal of preventing unlawful conduct by insurers with regard to the adjusting and payment of insurance claims.”

Susan H. Boyles of Kilpatrick Townsend & Stockton in Winston-Salem, who represented Brakebush, did not respond to a request for comment.

Citing the ongoing litigation, WinstonSalem attorneys G. Gray Wilson of Nelson Mullins Riley & Scarborough, who represented most of the insurers, and Bryan G. Scott of Akerman, who represented one other, declined to comment.

The 38-page decision is Brakebush Bros., Inc. v. Certain Underwriters of Lloyd’s of London (Lawyers Weekly No. 020-070-21). The full text of the opinion is available online at nclawyersweekly. com.

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NEWS / 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 Novem ber 22, 2021

U.S. SUPREME COURT BRIEFS High court skeptical of Texas death row inmate prayer demand WASHINGTON (AP) — Conservative Supreme Court justices expressed skepticism about a Texas death row inmate’s demand that his pastor be allowed to pray out loud and touch him during his execution.

Executions in Texas, the nation’s busiest death penalty state, have been delayed while the court considers the question. The outcome won’t take anyone off death row but could make clear what religious accommodations officials must make for inmates who are being put to death.

Members of the court’s conservative majority suggested during arguments on Nov. 9 that requiring Texas to grant the inmate’s request could lead to a string of cases asking for other accommodations. A lawyer for the inmate said the man would be content to have his pastor touch his foot during his execution, but justices questioned what requests might come next.

“What’s going to happen when the next prisoner says that I have a religious belief that he should touch my knee. He should hold my hand. He should put his hand over my heart.

He should be able to put his hand on my head. We’re going to have to go through the whole human anatomy with a series of cases,” Justice Samuel Alito said.

Chief Justice John Roberts and Justice Brett Kavanaugh also expressed concerns about what a ruling for the inmate would mean for requests in the future, with Kavanaugh asking whether all states would have to offer equivalent accommodations.

What if, he asked, one state “allows bread and wine in the execution room right before the execution” or allows the minister to “hug the inmate.” Do other states have to do the same?

The case before the justices involves John Henry Ramirez, who is on death row for killing a Corpus Christi convenience store worker during a 2004 robbery. Ramirez stabbed the man, Pablo Castro, 29 times and robbed him of $1.25.

Ramirez’s lawyers sued after Texas said it would not allow his minister to pray audibly and touch him as he is being given a lethal injection.

Lower courts had sided with Texas, but the Supreme Court halted his Sept. 8 execution to hear his case.

Texas says an inmate’s spiritual adviser may pray with and counsel him until he is taken into the execution chamber and restrained on a gurney. But Texas says that after that, while the spiritual adviser is nearby, he can’t speak to or touch the inmate.

“An outsider touching the inmate during lethal injection poses an unacceptable risk to the security, integrity, and solemnity of the execution,” Texas told the justices in briefs filed with the court.

Arguing for Texas, state Solicitor General Judd Stone II also told the justices that Ramirez’s request is just an attempt to delay his execution.

Justice Clarence Thomas seemed to agree, asking what the justices should do if they believe Ramirez has “changed his requests a number of times” and “filed last minute complaints” and “if we assume that’s some indication of gaming the system.”

Ramirez’s attorney Seth Kretzer

told Thomas that is not the case. He has argued that a federal law that protects the religious rights of prisoners requires the state to accommodate Ramirez’s requests.

The court’s three liberal justices seemed more open to Ramirez’s arguments, with Justice Sonia Sotomayor suggesting that where Ramirez wants his spiritual adviser to stand is far away from the restraints Texas uses or IV lines for the lethal execution drug. And both Justices Elena Kagan and Stephen Breyer noted Texas had allowed chaplains to touch inmates in the past.

The justices also heard from a lawyer for the Biden administration about the experience of the federal government in carrying out a number of executions recently. Under the Trump administration the federal government resumed executions for the first time in 17 years, carrying out 13 of them at the federal execution chamber in Terre Haute, Indiana. During 11 of those executions, which also made news for likely acting as coronavirus superspreader events, religious advisers were present and sometimes prayed aloud with inmates. In at least one case there was brief physical contact before the administration of the lethal injection drug.

Arguing for the government, Eric Feigin told the justices that the federal government believes Texas has a strong argument for not allowing a spiritual adviser to touch an inmate during the administration of the lethal injection drug itself. He said federal officials had not allowed that and it would likely give them “very, very substantial concerns.”

He also said it’s hard to know how a spiritual adviser might react during that time. That person could faint or stumble and jostle the IV lines, he said. “Anything going wrong here would be catastrophic,” he said.

Feigin also said spiritual advisers stood about 9 feet away as the lethal injection drug was being administered during recent executions. And he noted that the federal death chamber is about twice the size of the one in Texas.

As the court has grown more conservative in recent years it has been less open to last-minute challenges to death sentences. But issues surrounding ministers in the death chamber have been one area where the justices have had some openness to stopping an execution. In 2019, two inmates asked the justices to halt their executions over states’ refusal to allow their spiritual advisers in the execution chamber. Wrestling with the issue, the high court let one execution go forward but blocked the other, of Texas inmate Patrick Murphy.

At the time of Murphy’s scheduled execution, Texas allowed stateemployed religious advisers to be present in the execution chamber but only employed Christian and Muslim advisers, not anyone who was Buddhist, Murphy’s faith. Kavanaugh wrote that Murphy wasn’t being treated equally.

Texas responded by barring all clergy from the execution chamber, but inmates filed additional lawsuits.

Texas ultimately changed its policy in 2021 to allow both state-employed chaplains and outside spiritual advisers who satisfy certain screening requirements to go into the execution chamber.

The current Supreme Court case

has delayed the final two executions scheduled this year in Texas.

Last month judges rescheduled the executions of Kosoul Chanthakoummane, who was to die Nov. 10, and Ramiro Gonzales, who was set for Nov. 17. Gonzales’ new execution date is July 13 of next year, while Chanthakoummane’s is Aug. 17.

Approximately 2,500 people are on death rows nationwide according to the Death Penalty Information Center. A total of 17 people were put to death by five states and the federal government last year. The Biden administration announced earlier this year it would halt federal executions while the Justice Department conducts a review of its policies and procedures. Still, just last month the administration argued before the Supreme Court for the reinstatement of the death penalty in the case of convicted Boston Marathon bomber Dzhokhar Tsarnaev.

Justices struggle with government secrets case WASHINGTON (AP) — The Supreme Court struggled with whether to allow a lawsuit by Muslim men claiming religious bias by the FBI to go forward despite the government’s objection that doing so could reveal national security secrets.

The case the high court was considering involves a group of three men from Southern California. They filed a class action lawsuit claiming the FBI spied on them and hundreds of others in a surveillance operation that began several years after the Sept. 11, 2001, attacks. The men, represented by lawyers from the American Civil Liberties Union and others, claimed religious discrimination and violations of other rights, saying they were spied on solely because of their faith.

A lower court dismissed almost all their claims after the government said allowing the case to go forward could reveal “state secrets” — whom the government was investigating and why. But an appeals court reversed that decision in 2019, saying the lower court first should have privately examined the evidence the government said was state secrets.

The Biden administration, like the Trump administration before it, told the justices that decision is wrong.

A number of the justices suggested during arguments on Nov. 8 that they were inclined to agree with the government but also seemed to favor sending the case back to a lower court for additional proceedings. That could give both sides something of a win because it would allow the lawsuit to continue, as the group that sued wants.

Justice Brett Kavanaugh suggested that sending the case back to a lower court would let issues be “fleshed out and come back” to the Supreme Court later.

Justice Elena Kagan seemed to agree, saying the lower court’s decision was “in some important way premised on an incorrect understanding of when dismissal is appropriate in a state secrets case.” Justices Stephen Breyer, Sonia Sotomayor and Neil Gorsuch also asked about sending the case back at various points in the arguments, which lasted two hours.

The case involves a confidential informant, Craig Monteilh, the FBI used from 2006 to 2007. Monteilh pre-

tended to be a new convert to Islam as a way to become part of Southern California’s Muslim community.

Monteilh told people he was a fitness consultant, but he was really working as part of a surveillance program known as Operation Flex. Monteilh regularly attended the Islamic Center of Irvine in Orange County and has said that he was told to collect as much information on as many people as possible. He gathered names and phone numbers and secretly recorded thousands of hours of conversations and hundreds of hours of video using a camera concealed in a shirt button.

Ultimately Monteilh’s handlers told him to ask about jihad and express a willingness to engage in violence. Those questions caused members of the community to report him to the FBI and other authorities and seek a restraining order against him.

The FBI has acknowledged Monteilh was an informant, and the story was covered in the news media including on the National Public Radio show “This American Life.”

Three of the men Monteilh allegedly recorded sued, seeking damages and asking the government to destroy or return the information it had gathered.

This is the second case the court has heard involving the state secrets privilege since beginning its new term in October. Last month the court heard a case involving a Guantanamo Bay detainee that also involved the states secrets privilege.

Court to hear cases of docs convicted in pain pill schemes WASHINGTON (AP) — The Supreme Court has agreed to hear appeals from two doctors who were convicted of illegally distributing pain medication after writing thousands of prescriptions in short periods.

The court will take up the case of Xiulu Ruan of Mobile, Alabama, and Shakeel Kahn, who practiced medicine in Ft. Mohave, Arizona, and Casper, Wyoming.

Ruan and a partner, James Couch, were convicted of overprescribing medications at their Physicians Pain Specialists of Alabama clinic and a pharmacy.

The two doctors wrote 66,892 prescriptions in 2014, investigators said.

They grossed $20 million between 2012 and a raid in 2015, prosecutors said.

Kahn was convicted of conspiracy to unlawfully distribute and dispense controlled substances resulting in death, including oxycodone, an opioid pain reliever, and fentanyl, a synthetic opioid.

Jessica Burch, of Lake Havasu City, Arizona, was a patient of Kahn’s who died from an overdose in 2015.

He wrote nearly 15,000 prescriptions for controlled substances between 2011 and the end of 2016, totaling nearly 2.2 million pills and of which nearly half were oxycodone, prosecutors said.

In their appeals, both doctors said they acted within professional norms and that they were prevented from mounting a “good faith” defense that they did not intend any harm to patients.

The Justice Department said in Ruan’s case that there was overwhelming evidence that Ruan and his partner acted “as a large-scale pusher — not as a physician.”

10 / OPINION DIGESTS

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 N ove m be r 22, 2021

Opinions N.C. SUPREME COURT

10

N.C. COURT OF APPEALS

N.C. SUPREME COURT

Civil Practice Summary Judgment – Subsequent Class Certification – Consent Where defendant joined in a motion for a continuance, which indicated that the parties had agreed to file cross-motions for summary judgment and to address class certification if the matter were not resolved during the summary judgment stage, defendant waived ay objection it may have had to the trial court granting plaintiff’s motion for class certification after the court granted plaintiff’s motion for summary judgment.

We affirm the trial court’s grant of plaintiff’s motion for class certification.

Plantation Building of Wilmington, Inc. v. Town of Leland (Lawyers Weekly No. 010-127-21, 3 pp.) (Tamara Barringer, J.) Appealed from the Superior Court in Brunswick County (Jason Disbrow, J.) Mark Sig-

16

mon, Daniel Bryson, Martha Geer, Scott Harris, Hunter Bryson and Christopher Theriault for plaintiff; Stephen Carey, Charles Meeker, Corri Hopkins, Dan Hartzog, Katherine Barber-Jones and Brian Edes for defendant; Thomas Segars, Joseph Hammond and Scottie Forbes Lee for amicus curiae. 2021-NCSC-122

Domestic Relations Parent & Child – Termination of Parental Rights – Attorneys – Ineffective Assistance Claim – No Prejudice At the hearing on DSS’s motion to terminate the respondent-Mother’s parental rights, Mother’s counsel moved to continue, explaining that, though Mother was absent, counsel had sent Mother notice of the hearing and Mother usually appeared at hearings. The motion to continue was denied, and Mother’s counsel declined to cross-examine DSS’s witnesses, to present evidence, or to make a closing argument. Assuming Mother’s counsel’s assistance was ineffective, Mother—who had failed to complete ther-

apy, refused to take drug tests, was charged with both drug and violent offenses, stopped visiting with “Zoe,” admitted to increased heroin use, and lacked stable housing—cannot show that she was prejudiced thereby. Mother has not challenged on appeal the trial court’s findings of fact or conclusions of law that grounds for termination exist or that the termination was in Zoe’s best interest. Therefore, she cannot show that there was a reasonable probability of a different result.

We affirm the trial court’s order terminating Mother’s parental rights.

Dissent

(Earls, J.): Given counsel’s failure to develop a record below, Mother is unable to show prejudice. I would reverse and remand for an evidentiary hearing to determine whether Mother’s counsel’s representation was deficient and if so, whether Mother was prejudiced thereby.

In re Z.M.T. (Lawyers Weekly No. 010-128-21, 18 pp.) (Philip Berger, J.) (Anita Earls, J., dissenting) Appealed from the District Court in Beaufort County (Keith Mason, J.) Jay An-

thony Audino for petitioner; Thomas Griffin for guardian ad litem; Mary McCullers Reece for respondent.

2021-NCSC-121

Domestic Relations Parent & Child – Termination of Parental Rights – Lack of Progress Where “Tiffany” was removed from respondent’s custody because of domestic violence, improper care, and an injurious environment, and where respondent did not complete any of the programs in her family services agreement that would have addressed the domestic violence and parenting issues in the home, the trial court properly determined that respondent had not made reasonable progress under the circumstances to correct the conditions that led to Tiffany’s removal.

We affirm the termination of respondent’s parental rights.

In re T.T. (Lawyers Weekly No. 010-129-21, 20 pp.) (Robin Hudson, J.) Appealed from the District Court in Harnett County (Joy Jones, J.)

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12 / OPINION DIGESTS Duncan McCormick for petitioner; Marie Mobley for guardian ad litem; Wendy Sotolongo and Lee Gilliam for respondent. 2021-NCSC-145

Domestic Relations Parent & Child – Termination of Parental Rights – Best Interests In dispositions entered in ongoing juvenile abuse, neglect and dependency proceedings, a juvenile receiving out-of-home care should be placed with a suitable relative when such a placement is available, “unless the court finds that the placement is contrary to the best interests of the juvenile.” G.S. § 7B-903(a1). However, once a trial court has determined that a respondent’s parental rights may be terminated, the availability of an appropriate relative placement may be a “relevant consideration” under G.S. § 7B-1110(a)(6), but it is left to the trial court’s discretion to weigh the various competing factors in § 7B-1110(a) in arriving at its determination of the child’s best interests.

We affirm the termination of respondent’s parental rights.

The court’s unchallenged findings of fact show DSS had contacted and assessed 14 potential relative placements during the course of the underlying proceedings but found none to be acceptable. The trial court acknowledged the maternal grandmother’s request that the children be placed with her but made findings explaining why such a placement would be inappropriate and contrary to the children’s best interests. While the

court did find value in placing a child with relatives, the court concluded, based on the evidence before it, that freeing “Nathan” and “Nick” for adoption would afford them “the greatest opportunity to be nurtured, loved, and cared for in a safe and stable environment” and “to reach [the] full development of [their] physical, mental, emotional, moral and spiritual faculties.”

Because the trial court made sufficient dispositional findings of fact under G.S. § 7B-1110(a)(1)–(5) and provided a reasoned explanation of its weighing of the statutory factors, the trial court did not abuse its discretion by concluding that termination of the respondent-mother’s parental rights in Nathan and Nick was in the children’s best interests.

Affirmed.

In re N.C.E. (Lawyers Weekly No. 010-130-21, 18 pp.) (Robin Hudson, J.) Appealed from the District Court in Pasquotank County (Meader Harriss, J.) Frank Hiner for petitioner; Chelsea Barnes for guardian ad litem; Robert Ewing for respondent.

2021-NCSC-141

Domestic Relations Parent & Child – Termination of Parental Rights – Repetition of Neglect – Plan Completion Despite the fact that the respondent-parents substantially completed their case plans, since they never fully acknowledged responsibility for why the children came into DSS care—the filthy condition of the home, domestic

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 N ove m be r 22, 2021

violence, and a lack of supervision—or how these conditions affected the children, the trial court could find that the children would likely be neglected if returned to respondents’ care.

We affirm the termination of respondents’ parental rights.

The respondent-mother argues that her “failure to accept responsibility does not equate to a conclusion that ... the children would be neglected in the future if they were returned home because of [her] progress with her court ordered case plan.” She contends that “although [she] has not taken responsibility for her prior conduct, [she] nevertheless has corrected the conditions which led to the children’s removal” because she has refrained from using illegal drugs, refrained from domestic violence, participated in dialectical behavioral therapy, participated in numerous parenting classes, and engaged in appropriate visits with the children.

However, a parent’s compliance with his or her case plan does not preclude a finding of neglect. The trial court found that respondents “completed substantially all of their case plan but, despite their participation, they have shown that they have not gleaned sufficient insight into why their three children came into DSS custody.” The mother does not challenge this finding. The trial court’s findings and the record evidence support the trial court’s finding that the children would likely be neglected if returned to respondents’ care.

The respondent-father argues that the trial court abused its dis-

cretion in finding that termination was in the best interest of respondents’ eldest child, “Gary,” because Gary was not likely to be adopted.

Social Worker Melanie Ellis testified that although Gary was not in a position for adoption at the time of the hearing and that it was uncertain when he might be in a position to be adopted because “it [depended] on his treatment and his continued progress[,]” she also testified that “he’s continuing to progress and has—you know, last year, he ... stepped down to a therapeutic foster home, and he’s begun to stabilize.”

Ellis testified that she believed it was possible for him to eventually step down from leveled care and find a long-term or adoptive foster home. This testimony supports the trial court’s finding that adoption “is a realistic possibility for [Gary] as he continues to show improvement over the next year or two.”

The court found that Gary was highly functioning despite his diagnoses of autism and ADHD and that he was making progress in his treatment and in foster care; that his bond with respondents was “in some ways, unhealthy”; that Gary had expressed a desire to be adopted and to not return to respondents; and that termination would aid in achieving the plan of adoption. Although Gary was not in an adoptive placement at the time, the absence of an adoptive placement for a juvenile at the time of the termination hearing is not a bar to terminating parental rights.

The trial court’s determination that terminating the father’s parental rights was in Gary’s best interests

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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 Novem ber 22, 2021

was not an abuse of discretion.

Affirmed.

In re L.G.G. (Lawyers Weekly No. 010-131-21, 25 pp.) (Robin Hudson, J.) Appealed from the District Court in Watauga County (Larry Leake, J.) Chelsea Bell Garrett for petitioner; Michelle FormyDuval Lynch for guardian ad litem; Robert Ewing and Sean Vitrano for respondents. 2021NCSC-139

Domestic Relations Parent & Child – Termination of Parental Rights – Child Molestation Conviction – No Contact The respondent-father was convicted of molesting another child in Georgia, and the terms of respondent’s probation will not allow him to have any contact with his minor son, “Jeb,” until Jeb reaches the age of majority. While a lengthy period of probation cannot be the sole basis for a determination that future neglect is likely, it is a highly relevant factor. Also considering the fact that respondent failed to even attempt to find a way to learn about Jeb’s wellbeing during the four years between his arrest and the termination hearing, the trial court properly found that respondent’s parental rights were subject to termination based on neglect.

We affirm the termination of respondent’s parental rights.

In re J.B. (Lawyers Weekly No. 010-132-21, 17 pp.) (Robin Hudson, J.) Appealed from the District Court in New Hanover County (J.H. Corpening, J.) No brief filed for petitioner or guardian ad litem; Richard Croutharmel for respondent. 2021-NCSC-135

Domestic Relations Parent & Child – Termination of Parental Rights – Abandonment – Incarceration The respondent-father had not seen “Charlie,” born in February 2014, since he was four to six months old. Between that time and respondent’s incarceration in October 2016, respondent did not contact Charlie.

While he was incarcerated, respondent had a conduit to Charlie through respondent’s grandmother—with whom the petitioner-mother kept in touch—but respondent nevertheless failed to send money, gifts, cards or letters to Charlie. Between his release from prison in July 2019 and the filing of the petition to terminate his parental rights in November 2019, respondent made no attempt to communicate with Charlie. These facts evidence the lack of care, support and maintenance that indicate abandonment.

We affirm the trial court’s termination of respondent’s parental rights on the ground of willful abandonment.

In re C.K.I. (Lawyers Weekly No. 010-133-21, 13 pp.) (Robin Hudson, J.) Appealed from the District Court in Dare County (Robert Trivette, J.) No brief filed for petitioner or guardian ad litem; Edward Eldred for respondent. 2021-NCSC-131

Domestic Relations Parent & Child – Drug Addiction – Incarceration – Phone Calls During his incarceration, the respondent-father did not participate

in a substance abuse program that would have allowed him to spend time with “Wallace” on the prison’s family day. Moreover, during his weekly phone calls to the petitionergrandmother (who had custody of Wallace), respondent rarely asked about Wallace and did not inquire about his medical conditions (cerebral palsy and blindness in one eye).

Although he was in prison for all five of Wallace’s birthdays, respondent sent him only one birthday card, never wrote him a letter, sent him only one Christmas gift, and provided him no financial support. This is contrasted to respondent’s treatment of his daughter; he communicated with her weekly, sent money for her benefit, inquired about her welfare, and asked petitioners to bring her to visit him in prison. The record supports the trial court’s determination that there was a high probability that Wallace would be neglected in the future were he placed in respondent’s care.

We affirm the termination of respondent’s parental rights.

In re W.K. (Lawyers Weekly No. 010-134-21, 22 pp.) (Robin Hudson, J.) Appealed from the District Court in Forsyth County (Laurie Hutchins, J.) Andrew Fitzgerald for petitioners; no brief for guardian ad litem; Peter Wood for respondent. 2021-NCSC146

Domestic Relations Parent & Child – Termination of Parental Rights – Abandonment – Custody Order Although a 2015 custody order did not grant the respondent-father visitation with “Molly,” that order did not prohibit all contact between respondent and Molly, and it laid out the steps respondent could take to gain visitation rights. Nevertheless, respondent did not contact Molly, and—after starting to address the issues laid out in the custody order (substance abuse, domestic violence and anger management)—respondent abandoned such efforts and never moved to modify visitation.

Finally, respondent never paid more than a third of his $300 per month child support obligation. Under these circumstances, the trial court properly terminated respondent’s parental rights on the ground of willful abandonment.

We affirm the termination of respondent’s parental rights.

In re M.E.S. (Lawyers Weekly No. 010-135-21, 12 pp.) (Paul Newby, C.J.) Appealed from the District Court in Wake County (Monica Bousman, J.) No brief for petitioner; Mary McCullers Reece for respondent.

2021-NCSC-140

Domestic Relations Parent & Child – Termination of Parental Rights – No-Merit Brief – Incarcerated Father In this case involving an incarcerated respondent-father who (1) has seen his nine-year-old son only twice, (2) provided no support during the six months preceding the filing of the petition, (3) did not inquire about “Jamal,” and (4) has a projected release date of 2025, none of the potential issues identified by counsel have merit, and our review of the record shows that the trial court’s order terminating respondent’s parental

rights is supported by clear, cogent and convincing evidence.

We affirm the termination of respondent’s parental rights.

In re J.G.S. (Lawyers Weekly No. 010-136-21, 4 pp.) (Paul Newby, C.J.) Appealed from the District Court in Burke County (Burford Cherry, J.) Thomas Diepenbrock for respondent; Amanda Perez for petitioner; Michelle FormyDuval Lynch for guardian ad litem. 2021-NCSC136

Domestic Relations Parent & Child – Termination of Parental Rights – Failure to Pay Support – No-Merit Brief In the months before the petition to terminate her parental rights was filed, while her children were in the custody of DSS, the respondent mother had consistent employment and had more than $10,000 in her savings account, yet she did not pay any child support or pay for her four children’s reasonable cost of care. She conditioned payment on her ability to see the children. Upon review of the record, we conclude that the trial court did not err or abuse its discretion in terminating respondent’s parental rights.

Affirmed.

In re P.R.F. (Lawyers Weekly No. 010-137-21, 8 pp.) (Per curiam) Appealed from the District Court in Burke County (Mark Killian, J.) Mona Leipold for petitioner; Mark Frederick for guardian ad litem; Anné Wright for respondent. 2021-NCSC143

Domestic Relations Parent & Child – Termination of Parental Rights – Failure to Pay Cost of Care During the time that her children were in DSS custody, the respondentmother was employed but failed to provide sufficient information about her earnings, and she failed to take any steps to satisfy her obligation to provide support for her children.

The record supports the trial court’s termination of respondent’s parental rights under G.S. § 7B-1111(a)(3) for failure to pay a reasonable portion of the cost of the care that her children had received while in a placement outside the home.

Affirmed.

In re C.M.F. (Lawyers Weekly No. 010-138-21, 8 pp.) (Per curiam) Appealed from the District Court in Alamance County (Ricky Champion, J.) Jamie Hamlett for petitioner; Thomas Griffin for

Domestic Relations Parent & Child – Termination of Parental Rights – Neglect – Likelihood of Repetition Although the respondent-parents made some progress towards improving the conditions that led to their children’s removal from their care, the trial court’s findings—including findings that respondents did not agree that there were problems with their parenting—support its determination that the neglect would likely

14 / OPINION DIGESTS recur if the children were returned to respondents’ care.

We affirm the termination of respondents’ parental rights.

According to the respondentfather, the trial court’s findings of fact do not support a determination that his parental rights in his children were subject to termination on the basis of neglect given that the problems that led to the initial adjudication of neglect were resolved before the termination hearing, with the trial court having failed to give proper consideration to the changes in his circumstances and the progress that he had made towards reunification following the initial adjudication. However, the record contains ample evidence tending to show that the children, with the consent of both parents, were found to be neglected juveniles in May of 2018, and that (1) the children had significant needs; (2) the parents exhibited “a pattern of neglect and a failure to understand the need to change diapers, keep the home and the juvenile[s] clean, and keep themselves clean”; (3) the father continued to deny that the children had special needs even after having been presented with “evidence-based documentation”; (4) the father did not believe that the family had any problems that needed to be addressed; (5) he failed to accept “that there was a problem that needed addressing to begin with”; (6) the father left most of the parenting responsibilities to the respondent-mother and never made any effort to assume responsibility for the performance of any parenting duties; and (7) the father failed to provide consistent care for the juveniles. These findings fully support the trial court’s determination that “Jake,” “Evette,” and “Alana” were neglected juveniles and that the neglect that they had previously experienced was likely to reoccur in the event that they were to be returned to the father’s care.

The mother challenges the sufficiency of the evidentiary support for the trial court’s finding that “the mother and ... father have shown a pattern of neglect and a failure to understand the need to change diapers, keep the home and the juvenile clean, and keep themselves clean.” In addition to the evidence that we relied upon in rejecting the father’s challenge to this finding, we note that the record also contains evidence tending to show that the mother exhibited a pattern of “[failing] to understand” the need to ad-

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dress problems relating to the sanitary conditions in the home given that she did not see these conditions as problematic to begin with. In addition, a social worker and a psychologist, who evaluated the mother in 2014 and 2018, both testified that the mother’s intellectual limitations resulted in a lack of understanding of the parenting skills that DSS had attempted to teach her.

These findings show a likelihood of repetition of neglect.

In re A.E. (Lawyers Weekly No. 010-139-21, 49 pp.) (Sam Ervin, J.) Appealed from the District Court in Stokes County (Marion Boone, J.) Jennifer Oakley Michaud for petitioner; James Freeman for guardian ad litem; David Perez and Mercedes Chut for respondents. 2021-NCSC130

Domestic Relations Parent & Child – Termination of Parental Rights – Lack of Support A valid child support order must rest upon an analysis of the amount of support necessary to meet the reasonable needs of the child and the relative ability of the parties to provide that amount. As we held in In re J.M., 373 N.C. 352 (2020), in determining whether a parent’s parental rights are subject to termination pursuant to G.S. § 7B-1111(a)(3), when the parent is subject to a valid child support order, there is no requirement that the petitioner independently prove or that the termination order find as fact the parent’s ability to pay support during the relevant statutory time period. We reject the respondent-parents’ argument that In re J.M. should be overruled, and we uphold the trial court’s finding that respondents were physically and financially able to pay a reasonable portion of “Sandra’s” cost of care.

We affirm the termination of respondents’ parental rights.

According to the parents, the only barrier precluding their reunification with Sandra consisted of their poverty, which deprived them of the ability to afford the services that were required by their case plans. We are not persuaded.

According to the trial court’s unchallenged findings of fact, Sandra was placed in foster care on 13 February 2018, and she had been in foster care for 28 months at the time of the termination hearing. Although the parents were allowed to have supervised visits with Sandra

twice each month, neither of them took advantage of their opportunity for a visit with Sandra during the period between August 2018 and January 2019. In addition, the aspects of their case plans that the parents failed to complete, including mental health evaluations and random drug screens, were initially made available to them by Yadkin County Human Services Agency; that, even though each parent participated in a psychological assessment, the results of that process were inconclusive given their “defensive” or “guarded” responses; and that YCHSA provided drug screens to the parents until they indicated that they could not participate in the drug screening process in light of the transportation-related difficulties that they were experiencing.

The trial court’s unchallenged findings support its determination that, as of the date of the termination hearing, there was no reasonable probability that the parents could be reunited with Sandra within a reasonable period of time.

In re S.C.C. (Lawyers Weekly No. 010-140-21, 21 pp.) (Sam Ervin, J.) Appealed from the District Court in Yadkin County (Jeanie Houston, J.) James Freeman for petitioner; Paul Freeman for guardian ad litem; Benjamin Kull and Garron Michael for respondents. 2021-NCSC-144

Domestic Relations Parent & Child – Termination of Parental Rights – Post-Petition Evidence Even though petitioner’s counsel objected to certain testimony on the mistaken ground that post-petition evidence was irrelevant to the adjudication of the petition to terminate the respondent-mother’s parental rights, and even though the trial court did not expressly correct counsel’s incorrect statement of law, since the trial court overruled the objection and clearly considered post-petition evidence, we reject respondent’s contention that the trial court acted on the basis of a misapprehension of law.

We affirm the termination of respondent’s parental rights.

In re I.E.M. (Lawyers Weekly No. 010-141-21, 12 pp.) (Sam Ervin, J.) Appealed from the District Court in Robeson County (William Moore, J.) Edward Yeager for petitioner; Lindsey Reedy for guardian ad litem; Garron Michael for respondent. 2021NCSC-133

Domestic Relations Parent & Child – Termination of Parental Rights – Credibility – Insufficient Progress Where the trial court found that the respondent-father’s testimony was not credible and that he had fabricated a lease and pay stubs—calling into question whether he had stable housing and employment—and where respondent had visited “Ivey” inconsistently and lacked a strong bond with her, the trial court could find that respondent had willfully failed to make reasonable progress to reunify with Ivey after she had been in an out-of-home placement for at least 12 months.

We affirm the termination of respondent’s parental rights.

In re I.P. (Lawyers Weekly No. 010-142-21, 8 pp.) (Michael Morgan, J.) Appealed from the District Court in New Hanover County (J.H. Corpening, J.) Garron Michael for petitioner; no brief filed for guardian ad litem; Richard Croutharmel for respondent. 2021NCSC-134

Domestic Relations Parent & Child – Termination of Parental Rights – Willful Failure to Pay Support During the six months preceding the filing of the petition to terminate her parental rights, the respondent-mother entered into a voluntary support agreement, which is evidence of her ability to pay a monthly sum of “$107.00 in ongoing support, with $30.00 towards the arrears, split amongst all three children.”

Respondent paid no support during the relevant six-month period.

Since respondent was subject to a voluntary support agreement establishing her ability to pay a particular amount, petitioner was not required to prove that respondent had the ability to pay child support during the statutory period.

We affirm the termination of respondent’s parental rights.

In re J.K.F. (Lawyers Weekly No. 010-143-21, 12 pp.) (Anita Earls, J.) Appealed from the District Court in Yadkin County (David Byrd, J.) James Freeman for petitioner; Paul Freeman for guardian ad litem; Mercedes Chut for respondent. 2021NCSC-137

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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 Novem ber 22, 2021

Domestic Relations Parent & Child – Termination of Parental Rights – Lack of Progress Where the trial court made findings of the respondent-mother’s continued substance abuse, positive drug screens up to the month of the termination hearing, and issues with domestic violence that resulted in her incarceration at the time of the hear-

ing, and where the trial court found that respondent had failed to make any progress on her case plan, the trial court could conclude that respondent’s parental rights were subject to termination under G.S. § 7B-1111(a) (1).

We affirm the termination of respondent’s parental rights.

In re N.K. (Lawyers Weekly No. 010-144-21, 5 pp.) (Philip Berger, J.) Appealed from the District Court in Davie County (April Wood, J.) Holly

Groce for petitioner; Kip David Nelson for guardian ad litem; Peter Wood for respondent. 2021-NCSC-142

Domestic Relations Parent & Child – Termination of Parental Rights – Abandonment – Incarcerated Father Even though the respondent-father was incarcerated, he (1) was aware

that his son, “Aiden,” was in DSS custody; (2) had the ability to communicate by telephone; and (3) had the contact information for the foster family with whom Aiden was placed. Despite this, respondent failed to check on Aiden’s health, safety, welfare, condition or status and failed to provide any financial support. Respondent also did not send cards, gifts or letters, and the gifts given to Aiden by respondent’s fiancée were not at the direction of respondent. Thus, respondent never

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16 / OPINION DIGESTS acted as a parent to Aiden and never cultivated a bond with him. Therefore, the trial court could find that grounds existed to terminate respondent’s parental rights pursuant to G.S. § 7B1111(a)(7) (willful abandonment).

We affirm the termination of respondent’s parental rights.

In re A.A.M. (Lawyers Weekly No. 010-145-21, 15 pp.) (Philip Berger, J.) Appealed from the District Court in Burke County (Mark Killian, J.) Amanda Perez for petitioner; Morgan Renee Thomas, Heather Williams Forshey and Katelyn Bailey Heath for guardian ad litem; Annick LenoirPeek for respondent. 2021-NCSC-129

Domestic Relations Parent & Child – Termination of Parental Rights – Unmet Medical Needs The trial court found that the respondent-mother had (1) tested positive for amphetamine and methamphetamine on the day of the hearing on the petition to terminate her parental rights to “Kate”; (2) failed to make necessary medical appointments for Kate, who suffered from cystic fibrosis and end-stage liver disease; (3) failed to take Kate to all scheduled appointments; and (4) failed to obtain mental health treatment for Kate. The trial court also determined that respondent had acted inconsistently with her constitutionally protected status “by failing to provide proper care and supervision in a safe home, specifically with regard to unstable housing, substance misuse, [and unmet] medical and educational needs for [Kate].” The trial court’s findings support its conclusion that respondent’s parental rights were subject to termination on the basis of neglect.

We affirm the termination of respondent’s parental rights.

In re K.W. (Lawyers Weekly No. 010-146-21, 5 pp.) (Philip Berger, J.) Appealed from the District Court in Wayne County (Annette Turik, J.) Delaina Davis Boyd and Borden Parker for petitioner; Neil Riemann for guardian ad litem; Edward Eldred for respondent. 2021-NCSC-138

N.C. COURT OF APPEALS

Real Property Condominium – Freestanding Units – Maintenance Responsibility – Limited Common Elements Although the parties’ community is legally a “condominium,” each unit is a freestanding structure, and the units vary considerably in size. While the units’ outer walls, roofs and gutters do not fall within the condominium declaration’s definition of “limited common element” (an element for which only those benefiting bear the responsibility to maintain), such walls, roofs and gutters do fall within the definition of limited common element set out in G.S. § 47C-2-102(4) of the Condominium Act. Since the declaration does not expressly categorize the exterior walls, roofs or gutters or otherwise limit the definition of limited common elements to those components expressly mentioned, they are limited common elements by operation of § 47C-2-102(4), and only the unit owner is responsible for their maintenance.

We affirm in part, but we reverse the trial court’s ruling that the unit owners’ association bears the burden of maintaining the structures’ outer

walls, roofs and gutters.

Since the outer walls, roofs and gutters are limited common elements, the declaration puts the onus on the association to insure them against certain perils, like fire and lightning.

Even though the association has the obligation to provide insurance coverage for the exterior walls, roofs, and gutters against certain perils, the declaration provides that the unit owners respectively are responsible for their repair and maintenance.

Specifically, article VIII of the declaration directs that the unit owners respectively are responsible for the repair and maintenance of any limited common element serving his/her unit except for the two parking spaces outside each unit serving that unit, each unit’s private exterior entrance, and each unit’s front porch.

Dissent

(Hampson, J.): I dissent only as to the scope of the remand as it relates to the insurance coverage obligations.

The record does not contain a full version of the declaration.

There are two central questions left unanswered here: (1) does the declaration supplement the provisions of the Condominium Act or attempt to vary from the provisions of the act; and (2) if the declaration varies from the act (rather than supplementing the act), does it do so in a way that is consistent or permissible under the act?

In the absence of answers to these two questions, entry of judgment in this matter was premature. Consequently, I would simply vacate the trial court’s Judgment in full and remand this matter to permit further proceedings.

Alexander v. Becker (Lawyers Weekly No. 011-215-21, 14 pp.) (Chris Dillon, J.) (Toby Hampson, J., concurring in part & dissenting in part) Appealed from Mecklenburg County Superior Court (George Bell, J.) Roy Michaux and Ryan Hoffman for petitioners; Christopher Gelwicks for respondents. 2021-NCCOA-582

Civil Practice Appeals – Interlocutory – Real Property – Development Costs In this case arising out of defendants’ upward revision of their estimate of the cost of developing a certain property—a revision made after the plaintiff-developer bought the land—plaintiff’s remaining claims for negligence, negligent misrepresentation and breach of contract require different proof than its unfair trade practices and fraud claims, which the trial court disposed of in its partial summary judgment order. Consequently, plaintiff has not shown that it is entitled to immediate appellate review based on the risk of inconsistent verdicts.

We grant defendants’ motion to dismiss plaintiff’s appeal.

Greenbrier Place, LLC v. Baldwin Design Consultants, P.A. (Lawyers Weekly No. 011-216-21, 8 pp.)

(John Arrowood, J.) Appealed from Pitt County Superior Court (Jeffery Foster, J.) Gregory Duke for plaintiff; Steven Bader and Daniel Katzenbach for defendants. 2021-NCCOA-654

Domestic Relations Parent & Child – Permanent Guardianship – Insufficient Findings Where most of the trial court’s

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findings address the respondent-parents’ history of domestic violence, but where the trial court also found that “there [had] not been any reports of domestic violence since the last hearing” and that the parties had completed and/or were participating in services, the trial court’s findings do not support its conclusion that respondents were not “fit or proper” to parent “Andrea.”

We vacate the trial court’s order granting permanent guardianship of Andrea to her foster parents. Remanded for further proceedings.

The record reflects no evidence that respondents placed Andrea in harm’s way after the argument that had prompted DSS’ juvenile petition alleging neglect and dependency. No testimony showed her needs were ignored due to the parents’ behaviors.

No testimony showed their ongoing neglect or dependency of Andrea.

Moreover, testimony showed their visitation with Andrea was positive and appropriate, and that she knew and had established bonds to her parents.

Four social workers’ lay beliefs that respondents did not understand the seriousness of domestic violence is not clear, cogent, or convincing evidence that respondents are unfit or had continued to engage in conduct inconsistent with their constitutional right to parent Andrea, particularly considering the parents’ full participation in services, the lack of any additional incidents, and the presence of another child in the home.

The order does not explain how respondents can be fit and proper parents for Andrea’s younger sibling but not for Andrea.

The trial court’s insistence that respondents admit blame to prevent ceasing reunification efforts has no lawful basis without the threshold finding of unfitness or conduct inconsistent with their constitutionally protected status as parents.

Vacated and remanded.

In re A.W. (Lawyers Weekly No. 011-217-21, 18 pp.) (John Tyson, J.) Appealed from Johnston County District Court (Jason Coats, J.) Jennifer O’Connor for petitioner; Kimberly Connor Benton and Benjamin Kull for respondents; Marie Mobley for guardian ad litem. 2021-NCCOA-586

Civil Practice Involuntary Commitment – Danger to Others – No Opposing Attorney – Judges Because respondent was being treated at a private institution, there was no statutory requirement to have an attorney for the state present at respondent’s involuntary commitment hearing; moreover, there is no constitutional right to opposing counsel.

The trial court’s neutral questioning of witnesses did not violate respondent’s constitutional rights.

We affirm the trial court’s involuntary commitment order.

We have held that a trial court’s checking of a box on a judgment form is insufficient to support the determination that a respondent is a danger to himself or others. By the same logic, we conclude that a written order that, by virtue of not checking the designated box, does not expressly indicate the trial court “by clear, cogent and convincing evidence[] finds as facts all matters set out” within a report cannot be construed to mean the inverse.

In re J.C.D., 266 N.C. App. 441, 444, 828 S.E.2d 186, 189 (2019). Because

the trial court did not enter Dr. Grace Thrall’s report into evidence and the not check box four in its written order, the trial court did not incorporate the report as findings in its order.

The trial court’s findings of fact are based not on Dr. Thrall’s report but on testimony given at the involuntary commitment hearing by both Dr. Thrall and respondent himself. Those findings, which address respondent’s past behavior and the probability of harm absent treatment, support the trial court’s conclusion that respondent is a danger to others.

In re A.S. (Lawyers Weekly No. 011-218-21, 17 pp.) (John Arrowood, J.) Appealed from Durham County District Court (Pat Evans, J.) Jason Christopher Yoder for respondent; Rachel Brunswig for the state.

2021-NCCOA-585

Tort/Negligence Wrongful Death – Public Official Immunity – Public Employees – Intersection Design The defendant-employees of the North Carolina Department of Transportation, assert that they are entitled to public official immunity because their positions were created pursuant to statute, i.e., G.S. §§ 143B-345, 143B-346 and 136-18.

These statutes speak to NCDOT as an entity and grant statutory responsibility to NCDOT; they do not create defendants’ positions, nor do they delegate statutory authority to employees of NCDOT. Defendants have not established a clear statutory basis for their positions within NCDOT, so they are considered public employees, not public officials.

Defendants are not entitled to public official immunity.

We affirm the trial court’s denial of defendants’ motions to dismiss.

Baznik v. FCA US, LLC (Lawyers Weekly No. 011-219-21, 8 pp.) (April Wood, J.) Appealed from Wake County Superior Court (Andrew Heath, J.) Ann Ochsner, Douglas Abrams, Noah Abrams, Margaret Abrams and Melissa Abrams for plaintiff; Alexander Walton for defendants. 2021-NCCOA-583

Administrative OSHA Citation – Notice of Contest – Untimely Even though the OSHA Review Commission docketed the petitioneremployer’s “Notice of Contest” challenging an OSHA citation, since the citation had been issued more than 15 months earlier and gave petitioner 15 business days to file its Notice of Contest, petitioner’s Notice of Contest was not timely filed, and petitioner has failed to show that the docketing of its Notice of Contest was a procedural forfeiture or waiver to challenge.

We affirm the dismissal of the Notice of Contest as untimely.

Petitioner gave oral notice of its desire to contest the citation after an informal conference. Petitioner argues that that was sufficient because G.S. § 95-137(b)(1) does not require written notice. However, 13 N.C.A.C. 7A.0802 does require written notice, and the Commissioner of Labor supplied reasonable notice to petitioner twice within the allotted time for the notice to be filed and even complied with an extension request.

While N.C. R. Civ. P. 60 potentially

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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 Novem ber 22, 2021

provides relief from excusable neglect, petitioner made no efforts to submit any written notice and admittedly did not give the citation the attention it deserved. Petitioner has failed to show that it acted in good faith.

Lost Forest Development, L.L.C. v. Commissioner of Labor (Lawyers Weekly No. 011-220-21, 15 pp.) (John Tyson, J.) Appealed from Wake County Superior Court (Rebecca Holt, J.) Michael Lord for petitioner; Stacey Phipps for respondent.

2021-NCCOA-587

Trusts & Estates Marital Trust – Spousal Share – Fully Countable – Discretionary Distributions In order to count the assets of a marital trust towards a surviving spouse’s elective share of a decedent’s estate, G.S. § 30-3.3A(e)(1)c requires that the “trustee shall distribute to or for the benefit of the surviving spouse out of the principal of the trust such amounts and at such times as the trustee, in its discretion, determines necessary for the health, maintenance, and support of the surviving spouse.” Although the marital trust at issue admonishes the trustees “to make all reasonable efforts to preserve the principal … invading principal only when absolutely necessary for essential things,” since the trust also says, “My Trustees may distribute all or any portion of the principal of the trust to my wife in such amounts and at such times as my Trustees may determine to be necessary and prudent,” the trust complies with § 30-3.3A(e)(1)c.

We reverse summary judgment for the defendant-beneficiaries and the trial court’s ruling that the trust did not meet the requirements of § 303.3A(e)(1) to be a fully countable trust against the defendant-widow’s elective share.

In satisfaction of other parts of § 30-3.3A(e)(1), the decedent was the settlor of the trust, the terms of the marital trust are for the exclusive benefit of his surviving spouse during her lifetime, and the trustees are non-adverse. Speculation about a purported future adverse trustee violation does not prevent the marital trust, with its current trustees, from qualifying under the statute.

In compliance with § 30-3.3A(e)(1) b, the marital trust requires the net income of the trust to be distributed to the widow at least quarter annually, and the trustees have the discretion to make distributions for the widow’s benefit so long as the distributions are “necessary for the health, maintenance, and support of the surviving spouse.”

Finally, § 30-3.3A(e)d provides the trustee can in its discretion take into consideration other income assets and other means of support of the surviving spouse. Here, the terms of the marital trust provide the trustees have the discretion to consider “any other means of support available to my wife.” The marital trust meets the requirements of § 30-3.3A(e)(1) to be a fully countable trust.

Reversed and remanded.

Phillips v. MacRae (Lawyers Weekly No. 011-221-21, 13 pp.) (John Tyson, J.) Appealed from New Hanover County Superior Court (Phyllis Gorham, J.) Lawrence Moye, Elizabeth Arias and Patricia Jenkins for plaintiffs; Kimberly Kirk, David Lewis and Susan Keelin for defendants.

2021-NCCOA-588

Domestic Relations Prenuptial Agreement – Divorce – Gift Presumption Even though the parties’ prenuptial agreement said that properties acquired with one spouse’s separate assets would also be that spouse’s separate property upon the couple’s divorce, since (1) the agreement also said the spouses could make gifts to each other, (2) there was evidence that the plaintiff-Husband gave the defendant-Wife property in order to get her interested in real estate investment, and (3) Wife provided consideration for some properties by putting her own assets at risk when she personally guaranteed loans, the record does not support the trial court’s ruling that, under the prenuptial agreement, the parties’ jointly owned real estate company belonged solely to Husband.

The trial court’s order is affirmed in part, reversed in part, vacated in part and remanded.

On paper, all the disputed assets were owned by the parties jointly.

Because the parties agreed not to be subject to our equitable distribution statute, common law governs the rebuttal of a gift presumption.

Under the common law, where a spouse allows his separate assets to be used to acquire property titled to both spouses as tenants by the entirety or to the other spouse, it is presumed that the spouse supplying the consideration has made a gift to the marriage. This gift presumption may only be overcome by clear, cogent and convincing evidence.

The parties’ prenuptial agreement said that, if the parties divorce, the property owned by Husband prior to marriage and any property he acquired during marriage using his separate property would be his separate property. Wife waived all marital interest in Husband’s property, whether the marriage ended in divorce or Husband’s death.

However, the agreement went on to say that if Husband “shall create ... tenancies by the entirety, or otherwise so establish assets that upon [his] death[,] it shall be presumed that [Husband] presumed that [he] intended such passage and [that Wife] shall then become the sole and uncontested owner of such asset or assets, anything herein contained to the contrary notwithstanding … [It is] the wish of each party that any affirmative action taken by either after the signing of this Agreement, whether it be testamentary or in the creation of joint assets, shall override the releases and renunciations herein set forth.”

The agreement thus expressly provides that any affirmative action by Husband to create joint assets during the marriage “shall override [Wife’s] releases and renunciations” in the agreement. And there is nothing in the agreement stating that property titled to the parties jointly was to be deemed Husband’s separate property upon their separation or divorce.

There was substantial evidence that Husband gave Wife properties and a 50-percent interest in their real estate investment company in order to get her interested in real estate investing, and that Wife did become quite involved in the company and in real estate investing. Moreover, Wife guaranteed loans to acquire several of the investment properties.

The evidence overwhelmingly demonstrates that Husband and Wife

jointly own the real estate investment company.

There is conflicting evidence, which the trial court must consider on remand, as to the husband’s intent when he titled his beach house in both parties’ names and as to how several investments in Peru are titled or how they came to be so held.

Affirmed in part, reversed in part, vacated in part and remanded.

Poythress v. Poythress (Lawyers Weekly No. 011-222-21, 17 pp.)

(Chris Dillon, J.) Appealed from Wake County District Court (Ned Mangum, J.) Michelle Connell for plaintiff; John Kirby for defendant. 2021-NCCOA-589

Criminal Practice Second-Degree Rape – Force – Inability to Consent – Prior Bad Acts In this second-degree forcible rape case, the state’s theory was that the victim was physically helpless; consequently, force and lack of consent were implied by law. Thus, any mistake as to the victim’s consent was relevant.

The trial court did not err in admitting evidence that defendant had forced his former girlfriend to have intercourse since the court warned the jury that it could only consider the former girlfriend’s testimony for the purpose of proving intent, consent and absence of mistake.

We find no error in defendant’s conviction of second-degree rape.

Because force and consent are relevant issues in any second-degree forcible rape case, the absence of any mistake as to consent was an issue relevant to this case. Although the force involved in the alleged rapes to which the former girlfriend testified was not the same as the force implied by law in this case, it was relevant to prove defendant did not mistake the victim’s actions and inactions as consent in this case where he had allegedly raped the girlfriend by force and without her consent previously.

Consequently, the trial court did not err in determining the girlfriend’s testimony was relevant pursuant to N.C. R. Evid. 401.

Where the trial court (1) heard defendant’s pre-trial arguments on his motion in limine to exclude the girlfriend’s testimony, (2) heard the girlfriend testify on voir dire, (3) acknowledged N.C. R. Evid. 404(b) is a rule of inclusion and that the girlfriend’s testimony “was sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test and that the probative value is not outweighed by the prejudicial effect[,]” and (4) limited the girlfriend’s testimony to the “purposes of showing absence of mistake, lack of consent and intent,” the trial court’s decision to admit the girlfriend’s testimony was the result of a reasoned decision and not an abuse of discretion.

State v. Rodriguez (Lawyers Weekly No. 011-223-21, 14 pp.) (Toby Hampson, J.) Appealed from Wake County Superior Court (Rebecca Holt, J.) Karen Blum for the state; Drew Nelson for defendant. 2021-NCCOA-594

Criminal Practice Search & Seizure – Vehicle Tracking Device – Standing – Trespass Theory Pursuant to a court order, law enforcement placed a tracking device

on a vehicle owned by Sherry Harris and regularly driven by Ronald Evans. During a trip to New York to obtain heroin, defendant apparently knew the route and did the majority of the driving; nevertheless, Evans remained within the vehicle during the entire trip. Under the common law trespass theory of United States v. Jones, 565 U.S. 400 (2012), the trial court correctly ruled that defendant did not have standing to challenge the tracking device.

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

Defendant also failed to show he had a reasonable expectation of privacy to confer standing to challenge the order issued on probable cause.

State v. Lane (Lawyers Weekly No. 011-224-21, 13 pp.) (John Tyson, J.) Appealed from Wake County Superior Court (Graham Shirley, J.) Jonathan Evans for the state; Michele Goldman for defendant. 2021-NCCOA-593

Criminal Practice Search & Seizure – Search Warrant Affidavit – Insufficient Details From the plain language of the affidavit in support of a warrant to search defendant’s home, all that can be discerned is that law enforcement observed their confidential informant’s drug dealer, Robert Jones, at defendant’s home and apprehended Jones with narcotics “on the same date.” Notwithstanding the fact that Jones had visited the residence at least twice before, the record on appeal tends to show that the detective who prepared the affidavit did not provide any facts or circumstances that would lead an objective magistrate to reasonably conclude that drugs or other illegal items could potentially be found at defendant’s home.

We reverse the trial court’s denial of defendant’s motion to suppress, and we remand for a new trial.

Dissent

(Stroud, C.J.): The majority’s own summary of the facts indicates that it was approximately two minutes from when Jones left defendant’s residence until law enforcement attempted to stop him. While the local magistrate was likely aware of the proximity of the locales mentioned in the affidavit, I take judicial notice that defendant’s house is 2.8 miles from the address where Jones was stopped and thus, assuming normal driving speeds, the time to travel the distance would be at most a few minutes. I believe the trial court’s characterization of the stop as “immediat[e]” was accurate given a commonsense and realistic interpretation rather than the technical interpretation of the requirements with elaborate specificity which is discouraged.

The affidavit establishes a reasonable ground to believe that the proposed search would reveal the presence upon the premises to be searched of the objects sought and that those objects would aid in the apprehension or conviction of the offender. I would affirm.

State v. Eddings (Lawyers Weekly No. 011-225-21, 23 pp.) (April Wood, J.) (Donna Stroud, C.J., dissenting) Appealed from Buncombe County Superior Court (Thomas Davis, J.) Jonathan Marx for the state; Michael Spivey for defendant.

2021-NCCOA-590

18 / OPINION DIGESTS Criminal Practice Constitutional – Juvenile Tried as Adult – Juvenile Justice Reinvestment Act – Effective Date Although defendant was 16 years old when he allegedly committed the Class H felonies with which he is charged (breaking or entering and larceny), since the alleged crimes occurred before the effective date of the Juvenile Justice Reinvestment Act, it is not a violation of defendant’s constitutional rights for him to be tried as an adult in superior court without following the procedures required by the JJRA. We reverse the trial court’s dismissal of the charges.

The trial court granted defendant’s motion to dismiss, which was filed under G.S. § 15A-954(a)(4). That statute requires the dismissal of charges when a defendant’s constitutional rights have been flagrantly violated and there is irreparable prejudice to defendant’s preparation of his case.

Equal Protection

The trial court found an equal protection violation based on the lack of a rational basis for treating 16-yearold juveniles differently depending on the date of the alleged Class H felony. Sixteen-year-old juveniles alleged to have committed a Class H felony before the effective date of the JJRA, like defendant, are automatically prosecuted as adults in superior court; whereas, 16-year-old juveniles alleged to have committed a Class H felony after the effective date of the JJRA are initially prosecuted in juvenile court, and then a determination is made as to whether the juvenile should be prosecuted as an adult in superior court.

The Fourteenth Amendment does not forbid statutory amendments from having a beginning, and thus to discriminate between the rights of an earlier and later time.

After a change in our law against driving while impaired, State v. Howren, 312 N.C. 454, 323 S.E.2d 335 (1984), held, “The statute merely treats the same group of people in different ways at different times. It is applied uniformly to all members of the public and does not discriminate against any group. If [the] defendant’s argument were accepted the State would never be able to create new safeguards against error in criminal prosecutions without invalidating prosecutions conducted under prior less protective laws. Article I § 19 and the Equal Protection Clause do not require such an absurd result.”

Where no classification was created between different groups of people, defendant’s equal protection rights were not violated.

Cruel & Unusual Punishment

The state argues that the government does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process.

In Robinson v. California, 370 U.S. 660 (1962), the U.S. Supreme Court held that a statute, which made the illness of being addicted to narcotics a criminal offense, violated the Eighth Amendment. We do not identify defendant being tried as an adult, pursuant to G.S. § 7B-1604(a), to be of the same character as a person’s illness being criminalized, and it does not trigger the Eighth Amendment’s imposition of substantive limits on what

can be made criminal and punished as such. As an initial matter, our research has not revealed any North Carolina or U.S. Supreme Court decision applying the above principle from Robinson outside of the status of addiction to drugs or alcohol.

Further, the prosecution of juveniles as adults does not involve the substance of what is made criminal, and instead involves the procedure taken regarding a criminal offense alleged against juveniles. Here, the substance is properly criminally punished as defendant was charged with felonious breaking and entering and larceny after breaking or entering, offenses that are undoubtedly within the police powers of North Carolina.

The situation defendant faces is not analogous to Robinson because his prosecution as an adult does not criminalize a status, but instead punishes criminal behavior by juveniles according to the procedures in place at the time of the offense.

Defendant has no claim under the Eighth Amendment. Instead, to the extent defendant claims the state punished him prior to a conviction, this claim properly falls under due process.

Due Process

Relying on Kent v. United States, 383 U.S. 541 (1966), the trial court concluded that defendant’s due process rights had been violated. However, Kent involved a minor who was tried as an adult without being afforded the benefit of an existing, applicable statute governing the trial of juveniles. The U.S. Supreme Court explicitly based its holding on due process’s interaction with the requirements of the applicable statute. Here, there was no such protected interest, and defendant’s procedural due process protections were not implicated.

Turning to substantive due process, as there is not a fundamental right at issue, we apply the rational basis test. The state’s decision to prosecute and sentence juveniles under the statutory scheme in place at the time they commit their offense is rationally related to the state’s legitimate interest in having clear criminal statutes that are enforced consistently with their contemporaneous statutory scheme.

Defendant’s constitutional rights were not violated, much less flagrantly so, as required for the grant of his motion to dismiss pursuant to § 15A954(a)(4).

Reversed and remanded.

State v. Garrett (Lawyers Weekly No. 011-226-21, 29 pp.) (Hunter Murphy, J.) Appealed from Mecklenburg County Superior Court (Donnie Hoover, J.) Kimberly Callahan for the state; David Andrews for defendant.

2021-NCCOA-591

Criminal Practice Present Recollection Refreshed – Jailhouse Cellmate’s Letter After a jailhouse conversation, defendant’s cellmate wrote a letter to the district attorney about details defendant had revealed concerning the crimes with which he had been charged. At trial, before using the letter to refresh his recollection, the cellmate testified about part of his conversation with defendant and about writing the letter; moreover, the cellmate testified to details about the conversation that were not included in the letter. Thus, it is not clear that the cellmate merely recited the letter

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 N ove m be r 22, 2021

after it was used to refresh his recollection; as such, the trial judge did not abuse his discretion in allowing the cellmate to use the letter to refresh his recollection.

We find no error in defendant’s convictions of two counts of each of multiple offenses: attempted first degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and discharging a weapon into occupied property resulting in serious bodily injury.

The trial court also admitted the letter into evidence as a prior consistent statement to corroborate the cellmate’s testimony. The letter corroborates the cellmate’s testimony both as to how he came to have the information about defendant’s crime as well as the information about defendant’s crime to which the cellmate testified.

The letter reinforces the cellmate’s testimony that he knew defendant as “Jones” or “Rage” and that they shared a cell block together. Further, the letter corroborates the cellmate’s testimony regarding the location of the shooting on Glenwood Avenue, that defendant used an AK-47 in the shooting, that defendant lost his cell phone at the scene of the shooting, and that defendant told the cellmate that God was with defendant or he would be facing a murder charge. The letter is thus exactly the type of confirming evidence that defines corroboration.

Jury Instructions

Both N.C. Pattern Instructions 206.10 and 206.17A define “malice” in relevant part as “the condition of mind which prompts a person to [intentionally] take the life of another [intentionally] or to intentionally inflict serious bodily harm that[/which] proximately results in another person’s[/his] death without just cause, excuse or justification.” N.C.P.I. – Criminal 206.10 (2019), 206.17A (2003) (alteration to reflect difference between 206.10 and 206.17A with intentionally appearing in the first spot in 206.10 and in the second spot in 206.17A). By contrast, the jury instructions given at defendant’s trial in relevant part defined malice as “that condition of mind which prompts a person to take the life of another intentionally or to intentionally inflict a wound with a deadly weapon upon another which proximately results in his death, without just cause, excuse or justification.” (Emphasis added.)

As defendant indicates, a wound is not the same as serious bodily harm.

Defendant relies on case law defining wound as “an injury to the person by which the skin is broken.” Further, as defendant highlights, the statutory definition of serious bodily injury in the context of assault requires “substantial risk of death,” “serious permanent” harm, or harm that “results in prolonged hospitalization.

Assuming arguendo the trial court erred in its jury instructions, it was not a plain error; defendant cannot show prejudice.

The jury found the necessary elements as to the other charges for which defendant does not challenge the jury instructions. Even under defendant’s preferred instruction, N.C.P.I – Criminal 206.17A, malice includes “the condition of mind which prompts a person to take the life of another intentionally,” i.e. the intent to kill. The jury separately convicted defendant of two counts of “assault with a deadly weapon with intent to kill inflicting serious injury.” This charge was based on the same action – shooting at the victims – as the at-

tempted first-degree murder charge, so the jury would have found intent to kill and thus malice even with defendant’s requested jury instruction or any jury instruction that was not erroneous.

If the jury had been properly instructed as to malice on the attempted first-degree murder charge, the jury probably would not have reached a different result because the jury also convicted defendant on the assault charge, which, like malice, required finding intent to kill.

No error; remanded.

State v. Jones (Lawyers Weekly No. 011-227-21, 37 pp.) (Donna Stroud, C.J.) Appealed from Wake County Superior Court (Paul Ridgeway, J.) Amar Majmundar for the state; Daniel Dolan for defendant.

2021-NCCOA-592

Criminal Practice Search & Seizure – Reasonable Suspicion – Anonymous Phone Tip – Corroboration An anonymous tip told police defendant’s name and nickname, described his car, and said he would be at a specified school at a given time and that he would have heroin and a gun in the armrest of his car. The anonymous tip alone did not give police reasonable suspicion to stop defendant; nevertheless, police had reasonable suspicion to stop defendant under the totality of the circumstances: (1) police learned from a database that defendant had prior drug and gun charges; (2) defendant and his car matched the description given by the anonymous caller; and (3) when a police sergeant called defendant’s name, defendant turned off the car he had just started, walked away and reached toward his waistband. Since defendant was on school property, under the totality of the circumstances, police had a reasonable articulable suspicion that defendant was unlawfully in possession of a firearm on school property.

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

The anonymous tip said defendant kept his firearm in the armrest of his car, and there was no testimony that the sergeant observed any movements consistent with retrieving the firearm. However, there is also evidence that the sergeant was 40 to 50 yards away from the vehicle when defendant first approached the vehicle, a distance where movements inside the vehicle could have gone unseen, and defendant could have retrieved the alleged firearm between the time of the tip and when the law enforcement officers arrived.

State v. Royster (Lawyers Weekly No. 011-228-21, 26 pp.) (Hunter Murphy, J.) Appealed from Forsyth County Superior Court (Casey Viser, J.) Robert Pickett for the state; Sean Vitrano for defendant. 2021-NCCOA-595

Civil Practice Constitutional Challenge – As Applied – Transfer G.S. § 1-17(e) allows a person who was a victim of sexual abuse when she was a minor to bring an action for claims “related to [the] sexual abuse” “within two years of the date of a criminal conviction” of the perpetrator of the sexual abuse. In its motion to dismiss, the defendant-YMCA asserted that § 1-17(e) was unconstitutional

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as applied in this case because plaintiffs’ claims had already become timebarred when the statute was enacted.

Since defendant did not raise a facial challenge to § 1-17(e), the trial court erred by transferring defendant’s motion to dismiss to a three-judge panel in Wake County.

We vacate and remand.

Although defendant’s appeal is interlocutory, we grant its petition for writ of certiorari because the issue defendant raises on appeal presents the central question of what the appropriate requirements for a trial court are to transfer a case to be heard by a three-judge panel. Granting defendant’s petition affords this court the opportunity to consider a relatively new statutory scheme which has limited jurisprudence surrounding it.

The issue defendant raises is significant and important. Granting the petition for writ of certiorari will promote judicial economy by providing trial courts with guidance on a novel and complex statutory scheme.

In 2014, the General Assembly implemented a statutory scheme which requires certain challenges to its acts be decided by a three-judge panel in the Superior Court of Wake County.

G.S. §§ 1-81.1 and 1-267.1. These statutes only apply to facial challenges to the validity of an act of the General Assembly, not as applied challenges.

Under N.C. R. Civ. P. 42(b)(4), for a facial challenge to the validity of an act of the General Assembly to be transferred to a three-judge panel, the facial challenge must be raised by a claimant in the claimant’s complaint or amended complaint or by the defendant in the defendant’s answer, responsive pleading, or within 30 days of filing the defendant’s answer or responsive pleading. If the facial challenge is properly raised, “the court shall on its own motion, transfer that portion of the action challenging the validity of the act of the General Assembly to the Superior Court of Wake County for resolution by a three-judge panel…”

Here, the initial constitutional challenge was raised in defendant’s motion to dismiss. However, defendant specifically stated that it was arguing the General Assembly’s 2019 amendments “are unconstitutional only as applied to the Kernersville YMCA on the particular facts of this case…”

As defendant made clear it was only making an as applied challenge to the 2019 amendments, and the trial court did not make a determination itself that defendant’s constitutional challenge was in fact a facial challenge, no facial challenge was made in the time prescribed by Rule 42(b)(4) to allow the transfer of a facial challenge to a three-judge panel.

Defendant does not challenge the authority of the General Assembly to create disabilities as a means of extending the time during which a sufferer of sexual abuse may sue. Rather, defendant only challenges subsection (e)’s application to claims that had already become time-barred prior to its enactment in 2019. Indeed, a right or remedy, once barred by a statute of limitations, may not be revived by an act of the General Assembly.

The plain language of the statutory scheme clearly provides that a party must affirmatively raise a facial challenge, and that facial challenge must be raised in either the claimant’s complaint/amended complaint or the defendant’s answer, responsive pleading, or within 30 days of the defendant’s answer or responsive pleading. No such facial challenge was

raised here. As a result, the trial court erred by transferring defendant’s motion to dismiss to a three-judge panel.

Vacated and remanded.

Dissent

(Carpenter, J.): The issues defendant raises on appeal present the central question of whether the constitutional challenge to § 1-17(e) should be heard by a three-judge panel in Wake County or an individual judge in Forsyth County. Defendant is not asking this court to decide the constitutionality of the statute—nor is this court the proper place to do so. Consequently, while defendant’s raised issue is significant and important to the parties, it does not introduce a matter so pressing that the denial of defendant’s petition would negatively affect the efficient administration of justice or work against our judicial economy.

I would deny defendant’s petition for writ of certiorari.

Cryan v. National Council of Young Men’s Christian Associations of the United States of America (Lawyers Weekly No. 011229-21, 20 pp.) (Fred Gore, J.) (Jeffery Carpenter, J., dissenting) Appealed from Forsyth County Superior Court (Richard Gottlieb, J.) Donald Higley for petitioner; Lorin Lapidus for respondent. 2021-NCCOA-612

Domestic Relations Equitable Distribution – Marital Debt – Student Loans – Adult Daughter – First Impression During the parties’ marriage, student loans for the parties’ adult daughter were taken out in the plaintiff-husband’s name alone. Nevertheless, there was a joint benefit, in that the daughter’s tuition, books and living expenses were covered by the loans rather than being paid by the parties out-of-pocket. Further, “providing [their] daughter with a formal education was something that [they] both wanted and agreed to do.”

We affirm the trial court’s classification of the student loan debt as marital.

Although our statutory definitions of marital and separate property exclude educational degrees, the question before this court is whether educational loans are a marital debt.

Debt is not treated differently from assets. A marital debt is one incurred during the marriage and before the date of separation by either spouse or both spouses for the joint benefit of the parties. The party claiming the debt to be marital has the burden of proving the value of the debt on the date of separation and that it was incurred during the marriage for the joint benefit of the husband and wife.

Here, the parties do not dispute that the student loans were incurred during the marriage and before the date of separation. The only issue before us is whether the loans were for the joint benefit of the parties.

While our court has addressed the classification of a spouse’s educational degree and its associated student loans, no North Carolina court has considered student loan debt on these facts.

Some states’ courts hold that student loans incurred for the couple’s adult child are not marital property.

However, the Ohio Court of Appeals has upheld the classification of student loan debt incurred for an adult child as marital property.

In Vergitz v. Vergitz, 2007-Ohio-

1395 (Ohio Ct. App. Mar. 23, 2007) (unpublished), the court noted, “The important point is the loans were debt incurred during the marriage” and “the loan agreement ... could be treated as any other expenditure that married couples make.” Cooper v. Cooper, 2013-Ohio-4433 (Ohio Ct. App. Oct. 7, 2013) (unpublished), held that student loan debt incurred for the benefit of the parties’ adult son was presumed marital, noting that “the mere fact that the debt was in [the husband’s] name alone is not enough to establish that the debt was ... separate debt.”

We find the reasoning in Vergitz and Cooper persuasive and adopt it.

While the parties did not receive a tangible benefit from the student loans, a tangible benefit is not required.

The trial court did not err in classifying the daughter’s student loans as marital property.

Affirmed.

Purvis v. Purvis (Lawyers Weekly No. 011-230-21, 9 pp.) (April Wood, J.) Appealed from Moore County District Court (Warren McSweeney, J.) Whitney Shea Phillips Foushee for plaintiff; Jonathan Kreider for defendant. 2021-NCCOA-616

Domestic Relations Parent & Child – Permanency Planning Order – Guardianship – Insufficient Findings – Standard of Proof In its permanency planning order, the trial court concluded that the respondent-father had acted inconsistently with his constitutional rights as a parent. Such a conclusion must be based on findings of fact which are in turn based on clear and convincing evidence. Instead, the trial court said its findings of fact were based on “sufficient and competent” evidence. We remand for findings of fact pursuant to the proper standard of proof.

We vacate the permanency planning order and remand.

Until entry of the court’s permanency planning order, DSS was under the obligation to continue reunification efforts as reunification was one of the two required plans. Andy’s permanent plan of guardianship with his foster parents was not achieved until after the permanency planning hearing subject to this appeal.

The trial court orally announced its intention to award guardianship at the conclusion of a 30 September 2019 hearing. It entered its order awarding legal guardianship to the foster parents on 9 October 2019.

DSS’ strategic submission of one order ahead of another order does not remove the court’s statutory obligation to take evidence and make written findings of fact by clear and convincing evidence of the four statutory factors required before ceasing reunification efforts with respondentfather. G.S. § 7B-906.2.

We vacate and remand for a new permanency planning hearing to apply all appropriate evidentiary standards. Upon remand if the trial court wishes to remove reunification as a permanent plan, the trial court is bound by statute to make all four findings consistent with § 7B-906.2(d).

In re A.C. (Lawyers Weekly No. 011-231-21, 13 pp.) (Fred Gore, J.) Appealed from New Hanover County District Court (J. H. Corpening, J.) Jennifer Cooke for petitioner; Benjamin Kull for respondent; Matthew Wunsche for guardian ad litem.

2021-NCCOA-280

Criminal Practice Juvenile – Transcript of Admission – Disposition Level Where respondent’s transcript of admission provided – and the juvenile court informed him – that the most severe disposition that he would receive was a Level 2, but where the juvenile court imposed a Level 3 disposition without sufficient notice to respondent or any accompanying chance to withdraw the admission, respondent’s admission was not knowing and voluntary.

We vacate the transcript of admission, reverse the juvenile court’s adjudication and disposition orders, and remand for further proceedings.

In re J.G. (Lawyers Weekly No. 011-232-21, 6 pp.) (Valerie Zachary, J.) Appealed from Wake County District Court (Sam Hamadani, J.) and Cumberland County District Court (Cheri Siler-Mack, J.) Zachary Dunn for the state; Kellie Mannette for respondent. 2021-NCCOA-613

Domestic Relations Parent & Child – Support – Contract – Separation Agreement Where the parties’ unincorporated separation agreement delineated five specific events that would terminate the defendant-father’s child support obligation, a change in custody was not included on this list. Defendant was not entitled to relief from his support obligation based solely on the fact that the parties’ youngest child – the only child who was still a minor – lived with him for a time.

We affirm the trial court’s award of damages for breach of contract and attorney’s fees to the plaintiffmother. We vacate the portions of the order in which the trial court established child support at the contractual amount, $1,150 per month to plaintiff. We remand for further proceedings.

Pursuant to Pataky v. Pataky, 160 N.C. App. 289, 585 S.E.2d 404 (2003), the trial court determined that defendant had not rebutted the presumption that the child support amount set out in the separation agreement was reasonable. However, although the trial court made findings as to past expenditures for the minor child, there was no finding of her reasonable present expenses.

Furthermore, the child had moved back in with plaintiff by 2019, but the substantive evidence of expenses offered by plaintiff included bank and credit card statements. While these exhibits show how much money plaintiff spent, they do not provide information on what proportion of that money was spent to cover the child’s expenses.

The trial court’s findings of fact as to the minor child’s reasonable needs at the time of the hearing were not supported by competent evidence and, therefore, were insufficient to support the trial court’s conclusion that the contractual child support amount was sufficient to meet the minor child’s needs.

Affirmed in part, vacated and remanded in part.

Jackson v. Jackson (Lawyers Weekly No. 011-233-21, 19 pp.) (Fred Gore, J.) Appealed from Wake County District Court (Christine Walczyk, J.) Michelle Connell and Kip Nelson for plaintiff; Deborah Sandlin for defendant. 2021-NCCOA-614

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