North Carolina Lawyers Weekly January 3, 2022

NCLAWYERSWEEKLY.COM VOLUME 33 NUMBER 52 ■

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JANUARY 3, 2022 ■ $8.50

Cherokee Co. to pay $4M for illegal separation

MOST IMPORTANT OPINIONS OF 2021

■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com Cherokee County has agreed to pay $4 million to a woman who was unlawfully removed from her home when she was a minor by Department of Social Services employees who created and executed a fraudulent document that illegally separated dozens of families over nearly three decades.

The Dec. 6 settlement comes on the heels of a $4.6 million judgment against the agency in May for similar violations.

David Wijewickrama and Ron Moore of the Law Office of David Wijewickrama in Waynesville, Melissa Jackson of Waynesville, and D. Brandon Christian of Fayetteville represented the plaintiff, Molly Cordell.

Wijewickrama said that the county’s DSS overstepped its authority and violated due process rights in order to avoid judicial oversight and have the federal government foot the county’s bills.

“David Hughes, the social workers’ supervisor, said that the county’s lawyer … said that petitions are expensive,” Wijewickrama said.

“Well, petitions for DSS cases are free—what’s expensive is the services you provide these children.

“Foster care accounts for 50 percent of the county’s budget expenditure. This was all so the county could save money.”

Molly’s biological father gained

SEE PAGE 6

See Cherokee Page 3 ►

Not a class act: no immunity for charter school, CEO ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires A charter school and its CEO can be liable under the False Claims Act, the North Carolina Supreme Court has ruled, rejecting the defendants’ efforts to evade prosecution by classifying themselves as a state agency and public officer entitled to immunity.

Kinston Charter Academy, organized as a nonprofit corporation, began operating as a charter school in 2004.

The Academy served students from kindergarten through eighth grade residing in Lenoir, Pitt, and Greene counties. Ozie L. Hall Jr. served as chief executive officer of

the academy, and his wife, Demyra McDonald Hall, began serving as the chair of its board of directors in 2007.

From the date it began operation the academy experienced financial difficulties, and The Department of Public Instruction cited it on at least six occasions for having deficit fund balances. It dodged shutdown in 2007 because five of the eight members of the board took out personal loans to continue operations. It also obtained two shortterm loans in 2013, with Hall personally liable for the obligations.

In 2013 Hall informed the PPI that the academy

Send us your top Verdicts & Settlements of 2021!

North Carolina Lawyers Weekly will be publishing its annual Top Verdicts & Settlements list for 2021 in March.

If you or your firm obtained a verdict or settlement that you believe might qualify for our list, please report it to Lawyers Weekly so it can be included for consideration. You can submit your reports, or send any questions, to editor in chief David Donovan at ddonovan@nclawyersweekly.com. The deadline for submitting verdicts and settlements in time to be included in our list is Tuesday, Feb 1. Thanks!

See Charter Page 5 ►

INSIDE VERDICTS & SETTLEMENTS

COMMENTARY

COMMENTARY

Unsecured cargo leads to $2.2M settlement

And the most notable legal terms of 2021 are...

Instead of the dreaded review, try ‘quarterly conversations’

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2 / 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 Janu ar y 3, 2022

NEWS BRIEFS After impasse, N. Carolina politicians make big deals in ’21 RALEIGH (AP) — As the year draws to a close in politically divided North Carolina, hostilities have eased somewhat between the Democratic governor and majority-Republican lawmakers, both of whom recently agreed on a comprehensive budget more than three years after the last one was approved. But their relationship is still far from harmonious.

Last month, second-term Gov. Roy Cooper signed a two-year, $53 billion state budget bill penned by GOP legislative leaders that was 4 1/2 months late, and with lots inside for him to dislike, such as provisions that rein in his emergency powers and phase out corporate income taxes. And there are only plans to study the broad Medicaid expansion he’s sought for years, with no promise for an actual vote.

Two years ago, Cooper vetoed the spending bill. But this year, there was enough in it to make him sign, including an avalanche of surplus funds that Republicans were happy to direct toward myriad projects across the state, including broadband expansion and water treatment plant repairs.

“The good outweighed the bad, and it was time to move forward,” Cooper said in an interview with The Associated Press. “There’s been a long time since we’ve had a budget, and (vetoing) it would have at that time stopped everything.”

North Carolina, the nation’s ninthlargest state, was the last to enact a budget for 2021.

The governor’s signature capped a year in which Cooper agreed with Republican House Speaker Tim Moore and Republican Senate leader Phil Berger that good-faith negotiations, rather than stalemate, was the path to take.

The two sides also passed compromise legislation requiring more students to return to in-person classes earlier this year when the coronavirus pandemic eased and data showed low transmission among young people; raising police accountability standards; and making North Carolina the first southeastern state to establish greenhouse gas emission reduction requirements. And they celebrated announcements that Apple will build its first East Coast campu s and Toyota its first North American battery plant in the state, thanks in part to approved incentives.

“I think we’ve worked to try and make a difference,” Cooper said, and “we’ve come together on some historic legislation that’s going to make this state better.”

Conflict between Cooper and the General Assembly hasn’t ebbed fully.

The governor used his veto stamp on 16 bills this year, and none of the vetoes have been overturned. His fights with the Republicans began even before he was sworn in. Just two days before taking office in January 2017, the then-outgoing attorney general began suing GOP legislators for passing laws shifting gubernatorial powers to themselves.

In 2019, Cooper vetoed the budget bill, insisting that Medicaid expansion be negotiated. The GOP disagreed, and a conventional spending plan was never approved for the first time in recent state history. There was no government shutdown, yet many agencies operated at previous-

year levels.

Then COVID-19 arrived, as did billions of dollars in federal relief. A 2020 election to determine control of state government didn’t change a thing: Cooper won reelection, and Republicans maintained majorities that weren’t veto-proof.

Some Democratic legislators who were committed to upholding Cooper’s 2019 budget veto were determined this year to enact a plan.

Massive amounts for building construction and other special projects sprinkled nearly everywhere in the budget appeared to give Republicans leverage, too.

“We had funding in there to touch the lives of every North Carolinian,” said Rep. Charles Graham, a Democrat who was one of the budget negotiators because he had voted for the original House plan. Failing to enact a budget, Graham added, “would have not been ... good leadership.”

Cooper managed enough concessions, particularly on education spending, to accept the final product.

“To his credit, he really wanted to make sure that we had a budget, and he was willing to sign a budget,” Berger said in a recent interview.

GOP Rep. Jason Saine, a top House budget writer, said that Cooper, who is term-limited from serving beyond 2024, may have felt pressure to sign a budget because he had never done so.

“The (game) board has changed a little bit. And I think anybody that seeks that office, whether Republican or Democrat, they’ve got to think about their legacy, too,” Saine said.

More than 50 Democrats ended up voting for the bill after Cooper signaled he’d sign it. Criticism from Cooper’s allies was muted or directed at Republicans.

Assembly said Lee had no such power, since appropriating state funds rests solely with the legislature. A majority on a Court of Appeals panel, responding to a request for intervention by State Controller Linda Combs, agreed Nov. 30 that Lee overstepped his bounds and blocked the transfer.

The plaintiffs’ lawyers question whether the appeal panel’s quick ruling ran counter to rules of appellate procedure, as well as to the state constitution and Supreme Court opinions. Lee wrote last month that a portion of the constitution addressing the right to education in part gave him the authority to appropriate funds for education without a specific law of the General Assembly.

“The children of North Carolina have waited long enough for vindication of their constitutional right to the opportunity for a sound basic education and deserve no less,” wrote Melanie Dubis, one of the plaintiffs’ lawyers, to the Supreme Court.

Last week, House Speaker Tim Moore and Senate leader Phil Berger asked Lee that they be allowed to formally intervene as defendants in the Leandro case. Lee’s order effective challenges the state budget that the General Assembly approves, as well as the legislature’s constitutional authority, the GOP leaders’ attorneys wrote.

Cooper a Democrat, sought unsuccessfully for the remedial plan to be funded in the recently passed budget law.

School funding plaintiffs ask NC Supreme Court to weigh in

A North Carolina man who came to Washington armed with guns and threatened to shoot House Speaker Nancy Pelosi the day after the Jan. 6 riot was sentenced Tuesday to more than two years and four months in prison. Cleveland Meredith Jr. had planned to attend President Donald Trump’s rally in Washington on Jan. 6, but a vehicle breakdown caused him to arrive after the riot had ended.

He remained in Washington at a hotel and sent his uncle a text the day after the insurrection using a misogynistic term to describe the House Speaker and saying he was thinking of heading to her speech and “putting a bullet in her noggin on Live TV.” The comments concerned his uncle, who contacted Meredith’s mother.

His mother, who was alarmed by her son’s extremist social media postings and knew he had been experiencing mental health difficulties, called the FBI. U.S. District Judge Amy Berman Jackson said the text threatening to shoot Pelosi wasn’t the only alarming comment he made and rejected a suggestion that Meredith’s statements were in jest. “They cannot be erased by adding LOL on the end,” Jackson said.

Meredith, who has been jailed for the last 11 months, tearfully said he was out of control the day after the riot, expressed embarrassment over his arrest and offered an apology to Pelosi. “I know what I did was wrong,” said the 53-year-old Meredith, who lives in Hayesville, North Carolina.

Approximately 700 people have been charged with federal crimes related to the riot at the U.S. Capi-

RALEIGH (AP) — Plaintiffs in long-running North Carolina school funding litigation have asked the state’s highest court to decide whether a trial judge’s directive to send $1.75 billion from government coffers to state agencies to address inequities is lawful.

Lawyers representing school districts and parents on behalf of their children filed two separate appeal notices dated Wednesday with the state Supreme Court.

They are unhappy with last month’s decision by a Court of Appeals panel that blocked Superior Court Judge David Lee’s order to send the money from being enforced, and want the justices to get involved.

Lee is overseeing the litigation known as “Leandro,” named for one of the plaintiffs in the original lawsuit filed in 1994.

The judge declared last month that he had authority to direct funds from the state treasury because elected officials had failed repeatedly to comply with previous Supreme Court rulings that declared the state constitution gives children the “opportunity to receive a sound basic education.”

The $1.75 billion would cover two years of a remedial spending plan. It was developed by an outside consultant with input from Gov. Roy Cooper’s office and the State Board of Education.

Republicans leading the General

Man gets over 2 years in prison for Pelosi threat after riot ■ BY JACQUES BILLEAUD ASSOCIATED PRESS

tol. About 150 of them have pleaded guilty. More than 20 defendants have been sentenced to jail or prison terms or to time already served behind bars.

Over a dozen others received home confinement sentences.

Meredith brought a handgun and a military style rifle to Washington, bragged in a text about having thousands of rounds of armor-piercing bullets, profanely said “Burn DC” to the ground when a friend told him the Capitol had been breached and sent a text saying he was going to collect the heads of traitors.

The day after the riot, Meredith used misogynistic language when referring to Washington Mayor Muriel Bowser and said he may go to her office to shoot her. He is accused of headbutting and punching a person who was in a vehicle that was blocking his truck. And he said he thought he was going to run over Pelosi, Jackson said.

Meredith’s lawyers argued there was no serious intent for Meredith to follow through on the threats, noting he sent the messages to family and friends.

Family members say Meredith was immersed in the QAnon movement, which is centered on the baseless belief that former President Donald Trump was fighting a cabal of Satan-worshipping, child sex trafficking cannibals.

The judge said the mental health problems in Meredith’s life were present before Joe Biden won office or QAnon emerged. She said Meredith previously had been involved in assaults and a road rage incident.

NC’s top court halts March primary due to remapping suits ■ BY GARY D. ROBERTSON ASSOCIATED PRESS RALEIGH (AP) — North CaroSee Page 3 ►

BAR DISCIPLINE

ROUNDUP Attorney: Mark D. Lackey Location: Shelby Bar membership: Member since 1983 Disciplinary action: Suspended from the practice of law for two years on Dec. 13. The suspension is stayed so long as Lackey complies with certain conditions.

Background: Between July 2016 and January 2020, Lackey failed to conduct required monthly and quarterly reconciliations, properly maintain and review client ledgers, promptly pay title insurance on behalf of his clients, consistently provide information identifying the clients from whose balances wire transfer fee were drawn, maintain and accurate general ledger for his trust account, or take a required CLE for lawyers with authority over a trust account.

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.

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 Ja nuary 3, 2022

VERDICTS & SETTLEMENTS / 3

Unsecured cargo leads to $2.2M settlement ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com A truck driver who was injured by falling cargo has settled her suit for $2.2 million, her attorneys report.

Adrienne Blocker and Michael A. DeMayo of DeMayo Law Offices in Charlotte report that their client, identified only as “KW,” was seriously injured in 2015 while assisting a co-worker and fellow truck driver.

Many details of the case were withheld pursuant to a confidentiality agreement.

In an email to Lawyers Weekly, Blocker said that the client was injured when she “carefully” opened one door of her co-worker’s truck and both doors swung open, spilling a double stack of pallets loaded with heavy bales of cardboard onto her, knocking her down. The client contended that the pallets had shifted because they were not secured by a load bar.

Blocker said that during nearly six years of “hotly contested” litigation, defense experts opined that the plaintiff was contributorily negligent because she didn’t follow protocol for opening the door and it wasn’t her job to assist the co-worker. While the defendant didn’t contest the cause of the plaintiff’s TBI, Blocker said, it did question the duration of the injury’s effects.

Some of the delay in the case was also due to de-

claratory judgment actions filed by the involved liability carriers to determine which of them would be responsible to supply coverage for the corporate defendant, Blocker said.

Blocker said that the client spent several days in the hospital and required treatment at a multi-disAdrienne ciplinary (physical therapy, psychological treatment, and vocational Blocker rehabilitation) rehabilitation center and from eye, ears, nose, and throat specialists and an orthopaedic surgeon. The client suffered from seizures until approximately a year ago, Blocker wrote, when her neurologist found an effective medication.

Initially dependent on a walker Michael A. for mobility, the client now uses a cane only on occasion, Blocker said.

DeMayo She hasn’t returned to work, however, and was approved for Social Security benefits.

“KW was not able to again qualify for a CDL or return to her job she loved as an over-the-road truck driver,” Blocker wrote.

Follow Heath Hamacher on Twitter @NCLWHamacher

SETTLEMENT REPORT — PERSONAL INJURY

Amount: $2.2 million Injuries alleged: Subarachnoid hemorrhage, traumatic brain injury, non-displaced right tibial plateau fracture Case name: Withheld Court: Withheld Mediator: Thomas Duncan Date of settlement: Sept. 13 Special damages: Workers’ compensation lien of $356,629.96 Most helpful experts: Steve Farlow of Accident Reconstruction Analysis in Raleigh and Jessica Conard of Vargas Vocational Consulting in Raleigh Insurance carrier: Withheld Attorneys for plaintiff: Adrienne Blocker and Michael A. DeMayo of DeMayo Law Offices in Charlotte Attorneys for defendant: Withheld

CHEROKEE / Co. to pay $4M for illegal separation C o nt inu e d f r o m 1 ►

custody of her and her younger sister, Heaven, when their mother died unexpectedly in 2015, but the siblings began living with their grandmother.

It’s unclear why social workers later became involved, but court records show that DSS began investigating the alleged volatile relationship between Molly and her grandmother to determine the suitability of the living arrangement. After convincing the Cordells’ father to sign a “Custody Visitation Agreement”—an official-looking but bogus form conjured up by the agency—DSS removed the sisters from their home and placed them separately.

It’s also unclear why Cordell’s father executed the CVA, but court records show that other plaintiffs were told that refusal to sign the form could result in court involvement, jail time, and the possibility that their children would be placed in foster care, never to be seen again.

Molly was sent to live with her brother in Alabama while Heaven remained in North Carolina. Molly returned to North Carolina when the Alabama school system wouldn’t recognize the CVA and refused to enroll her in school.

She said that DSS, which hadn’t conducted a follow-up or welfare check, refused to assist in the situation.

At some point after rejoining her grandmother, an argument between them led to law enforcement involvement and further DSS intervention. According to the complaint, Molly was then placed with a friend’s parents who, rather than providing room and board, forced Molly to pay approximately $400 monthly for rent.

Despite never being presented to the court as an abused, neglected, or dependent child, Molly said that she was separated from her sister and other family who knew and loved her and forced to sacrifice her adolescence, leading to “sadness, pain, and emotional distress” that later manifested into numerous life difficulties. At no time did Cherokee County provide medical care or

C o nt inu e d f r o m 2 ►

lina’s highest court on Wednesday pushed back the March election primaries for legislative, congressional and judicial seats to give state courts time to review lawsuits claiming the Republican-controlled legislature illegally gerrymandered some districts.

The decision by the state Supreme

other services and benefits that would’ve been required had the lawful process of a court proceeding been undertaken, she asserted.

The case is the second of many lawsuits filed by families alleging that since 1999, Cherokee County DSS has coerced dozens of guardians and biological parents to sign a CVA to transfer custody without court oversight. According to court records, there is no evidence that CVAs have been used anywhere else in the state.

In May, a federal jury awarded $4.6 million to a father and daughter in connection with the scandal, which has generated national attention and federal criminal charges. Two DSS employees—former county attorney Scott Lindsay and former DSS director Cindy Palmer—were indicted on several charges. Palmer has since pleaded guilty to felony obstruction of justice and is serving 12 months of unsupervised probation.

The status of Lindsay’s cases is unclear.

In March 2018, U.S. District Judge Tessa Sellers voided all CVAs, calling them actual and constructive fraud on behalf of Lindsay, Palmer, and other DSS employees, citing “gross irregularities” in the process used to obtain them and in the illegality of the CVA themselves.

That same month, the North Carolina Department of Health and Human services temporarily assumed leadership of child welfare services at Cherokee County DSS. Its investigation revealed a systematic lack of adequate training, supervision, and capacity to deliver appropriate services, even beyond the CVAs. “There is a lot of work to be done to bring Cherokee County Department of Social Services into compliance with laws, policies, and appropriate child welfare services,” DHSS secretary Mandy Cohen wrote in a news release.

Sean Perrin of Womble Bond Dickinson in Charlotte, Patrick Flanagan of Cranfill Sumner in Charlotte, and Mary Euler of McGuire, Wood, & Bissette in Asheville represented the defendants. Lawyers Weekly was unable to speak with defense counsel before press time.

Wijewickrama said that Heaven Cordell set-

Court comes after a state Court of Appeals panel initially blocked filing for legislative and congressional candidates on Monday, only to have the decision reversed when the full 15-member intermediate appeals court was asked to weigh in on the matter. Filing began Tuesday for those races instead.

Wednesday’s order suspends all candidate filing in the state until the

SETTLEMENT REPORT — CIVIL RIGHTS

Amount: $4 million Injuries alleged: Pain and suffering Case name: Molly Cordell v. Cherokee County, Cherokee County Department of Social Services, et al.

Court: U.S. District Court for the Western District of North Carolina Case No.: 1:20-199 Judge: Martin Reidinger Date of settlement: Dec. 6 Most helpful experts: Dr. Jesse Raley of Columbia, South Carolina Insurance carrier: North Carolina Association of County Commissioners’ Liability and Property Pool Attorneys for plaintiff: David Wijewickrama and Ron Moore of the Law Office of David Wijewickrama in Waynesville, Melissa Jackson of Waynesville, and D. Brandon Christian of Fayetteville Attorneys for defendant: Sean Perrin of Womble Bond Dickinson in Charlotte for Cherokee County, Cherokee County Department of Social Services, Scott Lindsay, and Cindy Palmer; Patrick Flanagan of Cranfill Sumner in Charlotte for Scott Lindsay; and Mary Euler of McGuire, Wood, & Bissette in Asheville for Cindy Palmer tled her suit for $450,000, and that 21 cases are still pending discovery scheduling orders and must be reported to the court by May 2. He said he hopes that the litigation results in more than just monetary awards.

“The case establishes constitutional rights for children to require judicial oversight for them to maintain their family unit,” he said.

Follow Heath Hamacher on Twitter @ NCLWHamacher

litigation is resolved and delays the March 8 primary for two months. The Supreme Court says three trial judges hearing a pair of lawsuits must rule by Jan. 11. The ruling will then likely be appealed.

The delay is being granted “in light of the great public interest” in the matter and “the need for urgency in reaching a final resolution ... at the earliest possible opportunity,” the or-

der reads.

Primary elections for the U.S. Senate seat of the retiring GOP Sen. Richard Burr and U.S. House, General Assembly and judicial seats, along with elections for other local posts, will now be held May 17, according to the order.

The groups that filed the lawsuits See Page 5 ►

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 Janu ar y 3, 2022

And the most notable legal terms of 2021 are …

■ BY KEN BRESLER The most notable legal phrases of 2021 weren’t coined in 2021. If they had been, it probably would be too soon to have noticed them and too soon to gauge their impact, longevity and usefulness. Nonetheless, these notable legal phrases are fairly new, did make news, and are not in Black’s Law Dictionary. Here are my picks and definitions.

6. Blank check company. noun.

A company that has no specific business plan or purpose or whose business plan is to conduct a merger or acquisition with an unidentified company, companies, entity or person.

A blank check company encompasses a …

5. Special purpose acquisition company (SPAC). noun. A blank check company created to finance, within a set time, a merger or acquisition, which usually has yet to be identified.

Although the terms “blank check company” and “special purpose acquisition company” are used as synonyms, a SPAC is a kind of blank check company, according to the Securities and Exchange Commission.

SPACs and other blank check companies are an alternative to traditional initial public offerings. They have been around for years, so they’re not the new hot thing, but they did become a newly hot thing. Do you remember 23AndMe, the genetic testing company, and Buzzfeed, the digital media company, going public in 2021?

Whether you remember or not, they went public through SPACs. As of this writing, the SEC and Financial Industry Regulatory Authority are investigating a SPAC that was supposed to take public the new media venture of ex-President Donald Trump.

Still don’t understand SPACs? Don’t worry. On March 31, the SEC issued a staff statement advising companies to carefully consider “certain accounting, financial reporting and governance issues” before merging with a SPAC. In response, the number of SPACs plummeted. A commentator, Tom Tibbs, predicted that the number of SPACs in 2022 will fall far short of 2021’s number. That means that “blank check company,” “special purpose acquisition company,” and “SPAC”—among 2021’s hottest legal terms—might be lukewarm or even coolish in 2022.

Be on the lookout for “de-SPAC.” Tibbs, the senior product marketing manager for M&A at SS&C Intralinks, writes that “de-SPAC” means “merging a publicly traded SPAC with a private operating company, resulting in an operating company that then itself becomes publicly traded.” Who

knows? This could become a notable legal phrase of 2022.

4. Shadow docket. noun. The U.S. Supreme Court’s list of orders and summary decisions that lack typical procedure and transparency. 9 N.Y.U. J.L. & Liberty 1 (2015).

The legal controversy over abortion just won’t end and won’t stop generating new legal terms—or at least bringing them to our attention. In 2015, I called “fetal assault law” the most notable legal term of the year. (Tennessee’s law expired the next year.) I added “targeted regulation of abortion providers (TRAP)” to my online legal dictionary in 2016, and “fetal heartbeat bill” in 2019. (My online dictionary is at www.ClearWriting.com/dictionary.)

A law review article coined “shadow docket” six years ago. The term hit the news after the U.S. Supreme Court on Sept. 1 allowed the new Texas Heartbeat Act, illegalizing most abortions, to remain in effect while the case was fully briefed and argued. (Yes, the Texas legislation is a fetal heartbeat bill.)

On Dec. 1 the U.S. Supreme Court heard oral argument on a Mississippi law that could be a vehicle to overturn or curtail Roe v. Wade. That leads me to define “trigger law,” which has nothing to do with guns or emotional triggers. I’m not naming this as a notable legal term of 2021, but this is a good place to discuss another abortion-related phrase.

Trigger law. noun. A contingent state law generally banning abortions that will become effective—be triggered—if the Supreme Court overturns or curtails Roe v. Wade, which protects a woman’s constitutional right to decide whether to abort a pregnancy.

The following states, as of this writing, have trigger laws: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and Utah. Most trigger laws were enacted during the Trump administration, when opponents of abortion rights became heartened with the appointment of conservatives Neil Gorsuch and Brett Kavanaugh as Supreme Court justices.

Who knows? The most notable legal phrase of 2022 could be “trigger law.”

As for 2021, the pandemic generated the last three notable legal terms, which, unlike “trigger law,” are fairly self-explanatory and don’t need definitions.

3. Mask mandate. noun.

Most reported legal cases in 2021 using “mask mandate” involved individual litigants challenging such mandates. On Sept. 30, the South Carolina Supreme Court upheld what is in effect a state legislative ban on

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

public schools imposing mask mandates on students and staff. Call it a mask anti-mandate.

2. Vaccine passport. noun.

This legal term emerged in three scenarios: jurisdictions creating a verified documentation system of people’s vaccination status; jurisdictions requiring people to have and show vaccine passports for certain activities; and jurisdictions banning vaccine passports.

On Nov. 29, Gov. Charlie Baker announced that Massachusetts would be part of a consortium of 15 to 20 states to introduce a vaccine passport based on a QR code. As of this writing, further details have not been announced.

On Sept. 13, New York City became the first city in the U.S. to require people to show proof of vaccination to enter indoor public spaces, such as restaurants, gyms, cinemas, sports arenas and museums. The requirement continued to expand through December, including by lowering the age of people who needed proof of vaccination.

Various states have banned vaccine passports by legislation or executive order. Florida did so early on by executive order on April 2, barring state government entities from issuing “vaccine passports, vaccine passes, or other standardized documentation for the purpose of certifying an individual’s COVID-19 vaccination record…” Florida businesses are barred from requiring vaccine passports.

1. Vaccine mandate, also called vaccination mandate. noun.

The term existed before the COVID-19 pandemic. It referred to required vaccines against other diseases. Reported legal cases using the term proliferated in mid-2021. A recent and prominent use of the term happened on Dec. 13, when the U.S. Supreme Court denied an application to block New York’s regulation requiring health care workers to be vaccinated against COVID-19. Justice Gorsuch dissented from the denial, used the term “vaccine mandate,” and quoted a New York news release that used “vaccination mandate.”

Almost 117 years earlier, on Feb. 20, 1905, the U.S. Supreme Court upheld the constitutionality of Cambridge’s smallpox vaccine mandate for all inhabitants, authorized under a Massachusetts statute. Did the case, Jacobson v. Massachusetts, use the term “vaccine mandate”? No, it used “compulsory vaccination law.”

Legal terminology keeps on evolving. Unfortunately, so does COVID-19.

Ken Bresler is a lawyer, writer and legal writing coach. His website is ClearWriting.com. He tweets on legal writing at @LawWritingCoach.

Instead of the dreaded review, try ‘quarterly conversations’ ■ BY CHRISTOPHER F. EARLEY BridgeTower Media Newswires “To listen well is as powerful a means of communication and influence as to talk well.” – John Marshall Open and honest communication with team members is crucial when running a law firm. Whether it be a group meeting or a one-on-one meet-

ing, effective communication is critical.

When I have one-on-one meetings with team members, I do quarterly conversations as opposed to the dreaded review. Reviews are uncomfortable and awkward for everyone. No one ever likes administering them—or being subjected to them.

Instead, the quarterly conversa-

tion is something I have been doing for nearly a year, and I find them to be productive and rewarding for both myself and my team. I was inspired to start doing them after reading the fantastic book “How to Be a Great Boss”

by Gino Wickman.

Quarterly conversations are a casual

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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 Ja nuary 3, 2022

CHARTER / No immunity for charter school C o nt inu e d f r o m 1 ►

projected having 366 students for the 2013-2014 school year—the maximum estimate of student attendance that it was entitled to claim without seeking and obtaining prior approval from the Board of Education. When the academy received its funding for the 2013-2014 school year, it paid various amounts to Hall, McDonald Hall, and their daughter, for expenses such as unused vacation time and a website redesign that was never implemented.

Only 189 students enrolled for the school year. Department officials informed Hall and McDonald Hall that the academy would need to repay the funds that had been allotted based upon the over-estimate of student enrollment numbers. A subsequent audit by the state found that their “unqualified relatives” were paid $92,500 and that Hall and McDonald Hall accepted more than $11,000 in questionable payments.

The state didn’t recoup any funds from the academy after it closed. It then sued Hall, McDonald Hall, and the academy, alleging that they violated the state’s False Claims Act and Unfair and Deceptive Trade Practices Act and various duties imposed by the statutory provisions governing the operation of nonprofit corporations.

All three defendants moved to dismiss. Wake County Superior Court Judge A. Graham Shirley denied the motions, but in 2019 a unanimous panel of the Court of Appeals reversed the denial with regard to the academy, holding that it was entitled to sovereign immunity.

On appeal to the North Carolina Supreme Court, the state argued that the academy wasn’t protected by sovereign immunity. Hall also appealed the denial of his motion seeking to rely upon public official immunity.

Writing for the unanimous court, Justice Samuel Ervin IV affirmed the denial of Hall’s motion and reversed with regard to the academy.

“We conclude that North Carolina charter schools are not state agencies and are, for that reason, precluded from asserting a defense of sovereign immunity; that North Carolina charter schools are ‘persons’ as defined in N.C.G.S. § 1-607; that the state properly pled claims against the Academy and Mr. Hall for purposes of the False Claims Act; and that the trial court did not err by denying Mr. Hall’s request that the state’s complaint be dismissed

C o nt inu e d f r o m 3 ►

— the North Carolina League of Conservation Voters and math experts in one case and voters backed by an affiliate of the National Democratic Redistricting Committee in the other — have said voters would be irrevocably harmed if elections went forward under the approved lines.

The lawsuits claim the legislature manipulated the boundaries according to the political leanings of voters, the racial composition of voters, or both. In doing so, the suits say, lawmakers gave Republicans nearly unbreakable majorities in the state House and Senate and nearly assured victories in at least 10 of the 14 U.S. House seats starting with the 2022 elections. The state is closely divided in statewide elections.

Republicans hold eight of the 13 current House seats. North Carolina is getting an additional seat due to

on the basis of public official immunity,” Ervin wrote.

No sovereign immunity

To invoke the protections of sovereign immunity, the academy told the court that it was a part of the North Carolina school system. But the Charter School Act didn’t intend for charter schools to be categorized as state agencies, Ervin countered, as they operate as private, nonprofit corporations.

The state argued that the Academy wasn’t entitled to rely upon a sovereign immunity defense in response to an action brought by the state because as a lesser sovereign, equivalent to a local school board, and so its immunity yielded to the greater sovereignty of the state. The court sided with the state on this question as well.

Ervin began with the language of the Charter School Act, which categorizes charter schools as entities that “operate independently of existing schools” and not state agencies or instrumentalities.

“As a result, given that statutory language must be construed in accordance with its clear and unambiguous meaning, we hold that the General Assembly did not intend for charter schools to be deemed to be agencies or instrumentalities of the state,” Ervin wrote. “In addition, we agree with the state’s contention that charter schools are local rather than statewide in character and that such locally oriented entities are typically protected by governmental, rather than sovereign, immunity.”

Charter schools also fall within the definition of a “person” for purposes of the False Claims Act, Ervin wrote, which includes “bodies politic and corporate, as well as individuals, unless the context clearly shows to the contrary.”

“In view of the fact that a non-profit corporation of the type that is statutorily required to operate a charter school is clearly a ‘corporate’ body, a charter school is necessarily encompassed within the statutory definition of ‘person’ set out in [the statute],” Ervin wrote, finding no reason why accepting this definition of a person would be inconsistent with General Assembly’s intent in enacting the False Claims Act. Finally, Ervin rejected the academy’s position that the state’s complaint failed to satisfy the False Claims Act’s pleading requirements because the estimate of 366 students was nothing population growth, so the delegation’s partisan composition could affect whether the GOP regains the U.S. House next year.

The groups that filed the lawsuits want the courts to order the General Assembly to redraw the lines.

The delay “will allow voters to be heard in court and to hopefully establish once and for all that our state constitution forbids partisan gerrymandering,” League of Conservation Voters Executive Director Carrie Clark said in a news release. “We will continue going to bat for voters so they will vote under fair maps for elections next year and beyond.”

Lawyers for GOP legislative leaders who were sued say the boundaries are lawful, created through a transparent mapmaking process that prohibited the use of political data in map software programs. They also argue that state Supreme Court rulings in the early 2000s allow legisla-

more than a “projection” rather than an objective falsehood.

The estimate of a charter school’s student enrollment—which determines how much money it is entitled to receive from the state—must “be a genuine, good-faith estimate of the number of students that the charter school anticipates serving rather than an arbitrary figure that the charter school is entitled to present to the Department regardless of its accuracy,” Ervin wrote. “A contrary interpretation of the relevant statutory language would authorize charter schools to requisition ever-greater amounts of money from the state regardless of their actual need for the amount of money in question.”

Liability possible for individual claims

Turning to Hall’s liability, Ervin sidestepped a decision on whether or not he qualified as a public official, given the allegations made against him by the state went beyond “mere negligence.”

“Assuming, without in any way deciding, that a ‘CEO/Principal’ is a public official rather than a public employee and that such a person exercises discretionary authority, we agree with the Court of Appeals that, in light of the state’s allegation that Mr. Hall knowingly made ‘false or fraudulent statements in connection with receiving state funds,’ the state’s complaint contained sufficient allegations to preclude dismissal of the False Claims Act claim that it asserted against Mr. Hall,” Ervin wrote. “As a result, the Court of Appeals did not err by denying Mr. Hall’s motion to dismiss the False Claims Act claim that the state sought to assert against him in his individual capacity.”

Justice Philip Berger Jr. didn’t participate in the consideration or decision of the case, as he wrote the Court of Appeals’ 2019 ruling in the matter when he was a judge on that court.

In a statement, Laura Brewer, a spokesperson for Attorney General Joshua H. Stein, said that the office was “pleased with the outcome in helping protect taxpayers’ money.”

Amie C. Sivon of Ragsdale Liggett in Raleigh represented the defendants.

She declined to respond to a request for comment.

The 47-page decision is State ex rel. Stein v. Kinston Charter Academy (Lawyers Weekly No. 010-159-21). The full text of the opinion is available online at nclawyersweekly.com. tors to consider partisan advantage in mapmaking.

Last week, the three trial judges rejected requests by the plaintiffs to block the use of the approved lines, setting appeals in motion. Wednesday’s order came from the entire Supreme Court, not individual justices.

Four of the seven justices are registered Democrats.

“The court didn’t even articulate a legal or factual basis for suspending elections,” said GOP state Rep. Ralph Hise, one of the lawsuits’ defendants. “The Democrats on the Supreme Court want districts that elect more Democrats, so they’re blocking every election in the state until they get their way.”

Over 1,400 people whom the State Board of Elections says had already filed across North Carolina this week will remain candidates for those same offices when filing resumes, unless they withdraw at that time,

C o nt inu e d f r o m 4 ►

and relaxed back-and-forth dialogue between a manager and team member. They are a great opportunity to truly listen to the team member and to gain insight on how you can be a better leader, and how the team member can be further challenged and utilized.

Here are some things to keep in mind when doing quarterly conversations: Ask team members prior to the conversation to perform a written self-evaluation, scoring themselves in different categories on a scale of 1 to 5. The categories I use are work quality, productivity, enthusiasm, dependability and communication.

You might be surprised at how team members score themselves within these categories.

Reviews are uncomfortable and awkward for everyone.

I, too, perform my own written evaluation of the team member and score them using the same categories and scale. We then compare one another’s evaluation and discuss them at the quarterly conversation.

After we review the evaluations, I ask the team member a series of questions that aim to drill down to how they truly feel about their role, and how they are doing.

These questions yield so much interesting information. Really and truly listening to the answers you get in this context is so important.

Some of the questions I typically ask are: Do you feel your work makes a difference? Do you feel challenged in your current role? How can we better utilize your skill set? What is a personal goal you want to accomplish in the next six to 12 months?

I guarantee you that other employers do not take the time to do this, and it will make you stand out. The team member will appreciate you for taking the time to ask questions that show you truly care. Retaining great team members is crucial, and this is a great way of reducing the likelihood of someone leaving.

Having an actual back-and-forth conversation instead of a review, for me, is very helpful to help improve a team member’s performance while reminding them that I care about their success. If you are not already doing quarterly conversations, give them a try. They can be a true win-win for everyone.

Christopher F. Earley is a Boston attorney and author who concentrates his practice on the representation of the seriously injured and their families. the order reads. Candidate filing had been supposed to continue through midday Dec. 17.

The ruling means candidates will have several more weeks to raise money and campaign before a primary.

The top-of-the-ballot races will be for the party nominations to succeed Burr, who isn’t seeking reelection. Former Gov. Pat McCrory, U.S. Rep. Ted Budd and former Rep. Mark Walker remain among the announced candidates for the GOP nomination, with state Sen. Jeff Jackson and former Supreme Court Chief Justice Cheri Beasley among the Democratic hopefuls.

Republicans have controlled both the state House and Senate since 2011, allowing them to shape redistricting this past decade.

In 2019, a different three-judge S e e P a g e 19 ►

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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 Janu ar y 3, 2022

Most Important Opinions of 2021 Arbitration Non-Party – Credit Card – Equitable Estoppel In a case arising out of the installation of a water treatment system in plaintiff’s home, defendant Home Depot is not entitled to enforce the arbitration provisions in plaintiff’s credit card contract or in his contract with the installation professional.

We affirm the trial court’s denial of Home Depot’s motion to dismiss or to stay in favor of arbitration.

Plaintiff’s “Home Depot” credit card was issued by Citibank. By its own terms, the credit card contract does not provide Home Depot with the authority to compel arbitration.

We are persuaded by the reasoning of White v. Sunoco, Inc., 870 F.3d 257 (3d Cir. 2017), which analyzed a similar argument regarding identical language in another Citibank credit card contract. The arbitration clause of the cardholder agreement says “either you or we may ... elect ... arbitration…” The agreement defines “you” as the cardholder and “we” as Citibank. The credit card contract does not provide Home Depot with the authority to compel arbitration.

Equitable estoppel does not apply here because plaintiff is not seeking a direct benefit from the provisions of the credit card contract while simultaneously seeking to avoid its arbitration clause.

There was also an arbitration clause in plaintiff’s original contract with the installation professional, Carolina Water Systems, Inc.; however, plaintiff then entered into a contract with Home Depot, which, by its own terms, superseded plaintiff’s contract with Carolina Water Systems. Home Depot’s contract did not include an arbitration clause.

Home Depot cannot compel plaintiff to arbitrate his claims.

Affirmed.

Jackson v. Home Depot, U.S.A., Inc. (Lawyers Weekly No. 011-036-21, 23 pp.) (Valerie Zachary, J.) Appealed from Mecklenburg County Superior Court (Forrest Bridges, J.) Daniel Bryson, Scott Harris and Hunter Bryson for plaintiff; Lex Erwin and Stewart Haskins for defendant. 2021-NCCOA-313

Attorneys Fees – Receivership – Appeals – First Impression The trial court denied outside counsel’s request for fees for work counsel had performed for a courtappointed receiver. Counsel appealed, and the court also denied counsel’s requests for fees related to the appeal because “the Appeal, if successful, would benefit only [counsel] and would reduce the assets of” the receivership. However, there may be circumstances under which an attorney’s actions benefit a receivership even without contributing

to an increase in the receivership’s assets; further, 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.

We reverse the Business Courts orders (1) refusing to authorize the receiver to pay fees for services rendered by attorney Philip Mohr and (2) refusing to authorize the receiver to pay Mohr’s firm’s fee-litigation fees. We remand for further proceedings.

This court has not previously considered whether outside counsel is entitled to compensation for work performed while seeking to recover fees originally incurred for legal services rendered to a receiver. We hold that, 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. The trial court’s finding that payment of the firm’s fee-litigation fees “would reduce the assets” of the receivership is insufficient to support its conclusion that the services the firm rendered did not benefit the receivership.

With respect to the trial court’s order denying the receiver’s request to pay attorney Mohr’s fees, our jurisprudence teaches that 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 proper compensation for the services outside counsel performed. Where the trial court’s order denying Mohr’s fees failed to address either of these questions and instead based its denial solely upon what the court perceived to be the receiver’s and Mohr’s failure to adhere to the requirements of a prior order dictating how invoices for attorneys’ fees should be submitted to the court, the trial court’s denial of the request for fees was an abuse of discretion.

The trial court’s denial of Mohr’s fees could be construed as a sanction.

A court has the inherent authority to sanction parties and attorneys for misconduct during litigation; however, before an order imposing sanctions is entered, the court must provide the party being sanctioned with notice and an opportunity to be heard. In addition, the trial court’s conclusion that sanctions should be imposed must be supported by findings of fact which must in turn be supported by sufficient evidence.

Here, the trial court did not give Mohr notice that it was considering sanctions.

Furthermore, the trial court’s

finding that Mohr “[flagrantly] disregarded] ... the requirements imposed by” its prior order is unsupported by the record. That prior order required the receiver to submit invoices to the court and specifically forbade “outside counsel” from submitting requests for fees. Therefore, under the terms of the order, Mohr was prohibited from doing precisely that which the trial court apparently penalized him for not doing.

Reversed and remanded.

Bandy v. A Perfect Fit for You, Inc. (Lawyers Weekly No. 010-12321, 20 pp.) (Anita Earls, J.) Appealed from the Business Court (Gregory McGuire, J.) Philip Mohr and Brent Powell for appellants; no brief filed for appellees. 2021-NCSC-117

Civil Practice Standing – Constitutional – First Impression – Elections – Political Ads Where our General Assembly created a statutory cause of action for a political candidate when a political advertisement fails to include certain content (identifying the source of the ad), the candidate (or, in this case, his assignee) may bring suit under the statute without showing an “injury in fact.”

We affirm the decision of the Court of Appeals, reversing the trial court’s grant of summary judgment for defendant.

Defendant ran an advertisement against political candidate Dan Forest. Forest assigned his rights under § 163-278.39A(f) to plaintiff. Plaintiff sued, alleging defendant had failed to comply with the statute.

The trial court granted summary judgment for defendant on the ground that plaintiff lacked standing. In a divided opinion, our Court of Appeals reversed.

At issue here is a question of first impression for our court: whether the North Carolina Constitution limits the jurisdiction of our courts in the same manner as the standing requirements Article III imposes on federal courts, including the requirement that the complaining party must show she has suffered “injury in fact,” even where an act of the North Carolina General Assembly expressly confers standing to sue on a party, as it did in G.S. § 163-278.39A(f) (2011) (now repealed). We hold that it does not, and we affirm the decision of the Court of Appeals.

After surveying the relevant English, American, and North Carolina law of standing, we conclude that our Constitution does not impose an “injury-in-fact” requirement on a plaintiff.

The federal injury-in-fact requirement has no place in the text or history of our state constitution.

Our constitution includes no caseor-controversy requirement, upon which the federal injury-in-fact requirement is based.

The “judicial power” provision of our constitution imposes no par-

ticular requirement regarding “standing” at all. Rather, as a rule of prudential self-restraint, in order to assure the requisite “concrete adverseness” to address “difficult constitutional questions,” we have required a plaintiff to allege “direct injury” to invoke the judicial power to pass on the constitutionality of a legislative or executive act.

This standing principle arises as an incident of our power and duty to determine whether executive or legislative acts violate the constitution in the resolution of actual controversies. However, where a purely statutory or common law right is at issue, this rationale is not implicated, and a showing of direct injury beyond the impairment of the common law or statutory right is not required.

Furthermore, the injury-in-fact standard is inconsistent with the caselaw of this court.

Moreover, the Remedy Clause of the North Carolina Constitution does not impose an “injury-in-fact” requirement.

In Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 6402 (2008), we stated, “The North Carolina Constitution confers standing on those who suffer harm: ‘All courts shall be open; [and] every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law…” (quoting N.C. Const. Art. I, § 18). While our statement in Mangum was an adequate summary of the remedy clause’s effect on questions of standing—that the provision “confers standing on those who suffer harm”—it does not follow that those who do not suffer “harm” lack “standing.” In terms of logic, “harm” is a sufficient but not a necessary condition for “standing.”

The word “injury” in the remedy clause of our constitution’s open courts provision means, at a minimum, the infringement of a legal right; not necessarily “injury in fact” or factual harm. Taking the remedy clause as a whole and in the context of history, it cannot be understood to impose a limitation on the power of the courts to hear a claim, under the “injury in fact” test or otherwise.

Nor can the remedy clause be understood to impose a limitation on the legislature’s power to create new legal rights. To the contrary, by its express terms, which provide that “every person for an injury done him ... shall have remedy by due course of law,” to the extent it implicates the doctrine of standing, our remedy clause should be understood as guaranteeing standing to sue in our courts where a legal right at common law, by statute, or arising under the North Carolina Constitution has been infringed. N.C. Const. Art. I, § 18, cl. 2.

We have held that, in directly attacking the validity of a statute under the constitution, a party must show they suffered a “direct injury.”

The direct injury requirement applicable in cases involving constitutional challenges to the validity of government action is a rule of prudential self-restraint based on

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functional concern for assuring sufficient “concrete adverseness” to address “difficult constitutional questions.”

When a person alleges the infringement of a legal right arising under a cause of action at common law, a statute, or the North Carolina Constitution, however, the legal injury itself gives rise to standing. The North Carolina Constitution confers standing to sue in our courts on those who suffer the infringement of a legal right, because “every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law.”

N.C. Const. art. I, § 18, cl. 2. Thus, when the legislature exercises its power to create a cause of action under a statute, even where a plaintiff has no factual injury and the action is solely in the public interest, the plaintiff has standing to vindicate the legal right so long as he is in the class of persons on whom the statute confers a cause of action.

Plaintiff has alleged defendant violated the requirements of § 163278.39A(f). Part of § 163-278.39A(f) creates a cause of action permitting the candidate targeted by the illegal ad to enforce the regulations by bringing suit and establishing statutory damages he can seek. The record indicates plaintiff has complied with the requirements of § 163-278.39A(f).

Plaintiff clearly falls under the class of persons on whom the Disclosure Statute confers a cause of action. Forest was the candidate against whom the ad below was run.

He has assigned his interest in the case to plaintiff.

Defendant contends that plaintiff lacks standing because it cannot show “injury in fact.” But that is not the law of North Carolina.

Under North Carolina law, the legislature may create causes of action, including “private attorney general actions” to vindicate even a purely public harm. Our requirement for a “direct injury” in cases where the plaintiff attacks the validity of a statute under the constitution does not apply here. Where the plaintiff has suffered infringement of a legal right arising under a statute that confers on a class of persons including the plaintiff a cause of action, and the plaintiff has satisfied the requirements of the statute, the plaintiff has shown standing under the North Carolina Constitution.

Here, plaintiff has standing based on the statutory cause of action created by § 163-278.39A(f).

Concurrence

(Newby, C.J.): The General Assembly used its longstanding constitutional authority to create a private attorney general cause of action.

Plaintiff has the right to sue under § 163-278.39A(f), and neither the North Carolina Constitution nor this court’s precedent limits courts from hearing the case.

Committee to Elect Dan Forest v. Employees Political Action Committee (Lawyers Weekly No. 010-001-21, 91 pp.) (Robin Hudson, J.) (Paul Newby, C.J., concurring in the result) (Philip Berger & Tamara Barringer, JJ., not participating) Appealed from the Superior Court in Wake County (Allen Baddour, J.) On appeal from the Court of Appeals.

David Steven Walker for plaintiff; Amanda Martin and Michael Tadych for defendant. 2021-NCSC-6

Civil Practice Involuntary Commitment – Constitutional – No State Representation – Danger to Self When the district attorney and attorney general declined to send an attorney to represent the interests of the state in respondent’s involuntary commitment proceeding, the trial court could call and question witnesses to determine whether respondent posed a danger to himself or others.

We affirm the trial court’s involuntary commitment order.

Because our court has previously upheld involuntary commitments where the state has not appeared and where the trial court has questioned witnesses and elicited evidence, we are bound by our prior precedent to conclude the same. Nothing in the record indicates language or conduct that could be construed as advocacy for or against either petitioner or respondent. The trial court merely elicited evidence that would otherwise have been overlooked as no counsel for the state was present. The trial court did not ask questions meant to prejudice either party or to impeach any witness, and the court afforded respondent the opportunity to testify on his behalf even after the close of all the evidence. The trial court did not violate respondent’s right to an impartial tribunal.

The trial court found respondent was a danger to himself because respondent suffered from schizoaffective disorder; had been hospitalized 30 times; had a history of suicidal

ideations; and exhibited speech that was “fast and somewhat incoherent.” The trial court, by incorporating Dr. Sharma’s report, received evidence that police brought respondent to Duke Medical Center in this instance, in part, because of suicidal ideations. Therefore, competent evidence supports the underlying finding that respondent had a history of suicidal ideations in the relevant past.

Although the trial court did not expressly state that respondent had a reasonable probability of decompensating and harming himself, the trial court did find that respondent needed a long-acting, injectable medication that respondent had not yet received; intended to fire his “assertive management team”; and—by incorporating Dr. Sharma’s report— presented in the same manner as when he had been hospitalized in the past and needed inpatient treatment for “stabilization and safety.”

Therefore, the trial court’s findings indicate that respondent’s illness or any of his aforementioned symptoms will persist and endanger him within the near future. Thus, these findings also support the trial court’s ultimate finding that respondent was a danger to himself.

Affirmed.

Concurrence

(Dillon, J.): I write separately to reiterate the points I made regarding due process in my concurring opinion in In re C.G., 2021-NCCOA-344.

Dissent

(Griffin, J.): I dissent from the majority opinion for the reasons stated in my dissenting opinion in In re C.G., 2021-NCCOA-344.

In re Q.J. (Lawyers Weekly No. 011-129-21, 22 pp.) (Toby Hampson, J.) (Chris Dillon, J., concurring) (Jefferson Griffin, J., dissenting) Appealed from Durham County District Court (Pat Evans, J.) John Tillery for the state; Katy Dickinson-Shultz for respondent. 2021-NCCOA-346

Civil Practice Constitutional Challenge – As Applied – Transfer G.S. § 1-17(e) allows a person who was a victim of sexual abuse when (s)he 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 defendantYMCA asserted that § 1-17(e) was unconstitutional as applied in this case because plaintiffs’ claims had already become time-barred 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

8 / MOST OPINION IMPORTANT DIGESTS OPINIONS 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. 011-229-21, 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

Constitutional Interstate Sovereign Immunity – Alabama University – Equal Protection Claim Even though an Alabama state university registered as a nonprofit corporation in North Carolina, and even though all the actions plaintiff complains of occurred in North Carolina, under Franchise Tax Board of California v. Hyatt, 203 L.Ed.2d 768 (2019), the university and its employees are entitled to sovereign immunity.

We affirm the trial court’s grant of defendants’ motion to dismiss.

Plaintiff alleges that he and the individual defendants worked for Troy University—one of Alabama’s state universities, which had regis-

tered in North Carolina as a nonprofit corporation—in its office in Fayetteville. Plaintiff further alleges that the individual defendants sexually harassed him before defendant Gainey fired him.

Relying on Hyatt, the trial court granted defendants’ motion to dismiss on the basis of sovereign immunity. “States retain their sovereign immunity from private suits brought in the courts of other States.” Hyatt.

Plaintiff attempts to distinguish the facts of the instant case from those of Hyatt by arguing that, in Hyatt, the legal dispute had its genesis in the State of California, while here, all the tortious conduct occurred in North Carolina, and the individual defendant were North Carolina residents. However, for purposes of interstate sovereign immunity, the state in which the allegedly tortious conduct was committed is not a distinguishing fact of any relevance; the dispositive issue is whether one state has been haled involuntarily into the courts of another state. The approach to interstate sovereign immunity laid out in Hyatt is “absolute.”

Plaintiff also contends that for this court “to apply Alabama sovereign immunity under Article I, § 14 of the Alabama Constitution to conduct which occurred exclusively within ... North Carolina would constitute an intrusion on the sovereignty of this State.” Yet under Hyatt, it is clear that the “intrusion”—if any—upon the sovereignty of North Carolina occurred upon the ratification of the U.S. Constitution, and not upon the trial court’s dismissal of plaintiff’s claims on the grounds of interstate sovereign immunity.

Plaintiff next argues that the doctrine of interstate sovereign immunity does not apply in this instance because Troy University was not exercising a governmental function, but rather “came into North Carolina and leased office space in Fayetteville for a business and commercial venture.” However, neither North Carolina nor Alabama recognizes a “business and commercial ventures” exception to its sovereign immunity. Plaintiff is conflating our jurisprudence regarding the doctrines of sovereign immunity and governmental immunity. As an arm of the State of Alabama, Troy University is immune from suit under the doctrine of sovereign immunity, not governmental immunity.

Plaintiff next argues that the trial court erred in granting defendants’ motion to dismiss because Troy University waived its sovereign immunity by registering with the North Carolina Secretary of State as a nonprofit corporation, thus enabling it to sue and be sued in its corporate name. G.S. § 55A3-02(a)(1). But a state’s waiver of its sovereign immunity cannot be implied; it must be express. Alabama has explicitly not consented to be sued.

In that interstate sovereign immunity is a fundamental right “[embedded] ... within the constitutional design,” Hyatt, we must “indulge every reasonable presumption against [its] waiver,” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999). Accordingly, we will not read into the Nonprofit Corporation Act a blanket waiver of interstate sovereign immunity for an arm of another state that registers as a nonprofit corporation in the State

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of North Carolina, absent clear and express statutory authority to do so.

Troy University has not waived its interstate sovereign immunity by registering with the North Carolina Secretary of State as a nonprofit corporation.

In light of our courts’ presumption that the decision of a higher court generally operates retroactively, we conclude that retroactive application of Hyatt is required to achieve the purpose of the Supreme Court’s holding. In so concluding, we simply recognize the interstate sovereign immunity—an implicit and essential component of federalism—which the State of Alabama never waived.

Plaintiff further maintains that his state constitutional claim of an equal protection violation “trump[s] the doctrine of sovereign immunity.” We disagree.

Although our Supreme Court has ruled that “sovereign immunity cannot stand as a barrier to North Carolina citizens who seek to remedy violations of their rights guaranteed by” our state constitution, Corum v. Univ. of N.C., 330 N.C. 761, 413 S.E.2d 276, cert. denied, 506 U.S. 985 (1992), Corum dealt with intrastate sovereign immunity and is thus inapplicable to the case at bar. While our state constitution may indeed trump our state’s intrastate sovereign immunity, in the interstate context, the federal constitution protects the several states’ sovereign immunity vis-à-vis one another.

Where the complaint never specifies that defendant is suing the individual defendants in their individual capacities, we must presume that he sued the individual defendants in their official capacities. As such, his claims against the individual defendants are as much against the State of Alabama as are his claims against the university. Thus, the individual defendants are protected by the sovereign immunity afforded to the university.

Affirmed.

Farmer v. Troy University (Lawyers Weekly No. 011-008-21, 22 pp.) (Valerie Zachary, J.) Appealed from Cumberland County Superior Court (Andrew Heath, J.) Harvey Kennedy and Harold Kennedy for plaintiff; Julie Adams and Wesley Redmond for defendants.

2021-NCCOA-36

Criminal Practice Murder – Self-Defense – Children’s Hearsay Excluded – Blood Spatter Expert Although defendant Corbett’s stepchildren later partially recanted statements they made to a DSS investigator and to a forensic investigator regarding their father’s temper and mistreatment of Corbett, the trial court should have admitted the statements under the hearsay rule’s residual and medical treatment exceptions.

We affirm the Court of Appeals’ award of a new trial.

There was no dispute that Corbett (Molly) and her father, defendant Martens (Tom) killed the victim during a visit by Molly’s parents. Our Court of Appeals agreed with defendants’ challenges to several of the trial court’s evidentiary rulings, including its exclusion of statements made by Molly’s stepchildren (Jack and Sarah).

Hearsay

Jack and Sarah told a DSS investigator and a forensic investigator that their father had recently been angry and abusive towards Molly. Jack’s statement explained the presence of a brick paver on Molly’s nightstand (they were keeping it out of the rain so they could paint it), and Sarah’s statement explained why the victim was angry the night he was killed (Sarah came to their bedroom because she was frightened by the designs on her bedsheets).

After Jack and Sarah went to live with paternal relatives in Ireland, Jack said in a Skype interview that he hadn’t told the truth in his statements to the DSS investigator and the forensic interviewer. Sarah made diary entries that called into question her earlier statements.

The trial court excluded the children’s statements.

The statements made to the forensic interviewer were admissible under N.C. R. Evid. 803(4), the medical diagnosis or treatment exception to the rule against hearsay.

The forensic interviews took place at Dragonfly House, an accredited child advocacy center. Dragonfly House used procedures designed to elicit truthful information and did so in an environment that linked the children’s interviews to their medical exams.

When asked why they were at Dragonfly House, the children said it was because their father had died. These answers were not inconsistent with an understanding of the overarching medical purpose of their visit to Dragonfly House and the need for them to be truthful. Jack and Sarah properly identified the event which triggered their referral to Dragonfly House to be treated for possible physical and psychological trauma.

Defendants have met their burden of affirmatively establishing that the declarants had the requisite intent by demonstrating that the declarant made the statements understanding that they would lead to medical diagnosis or treatment.

Accordingly, the trial court erred by ruling that Jack’s and Sarah’s statements regarding the victim’s and Molly’s relationship and the children’s statements regarding their own relationships with their father and Molly were inadmissible.

The trial court abused its discretion in failing to admit Jack’s and Sarah’s statements to the DSS investigator under the residual exception to the hearsay rule.

First, the trial court said that “both children identified the source of their knowledge being nothing more than statements of [Molly] and [Molly’s] mother.” However, at least some of the relevant statements proffered by defendants were based on the children’s firsthand knowledge.

The trial court’s conclusion that the children’s statements lacked trustworthiness also rested on its unsupported determination that it was “not assured of the children’s motivation to speak the truth,” finding that they were motivated to stay with the only mother-figure they knew. We have never held that only children who do not like their parents or who are blind to the potential consequences of a destabilizing family crisis possess a motivation for truthfulness, and we reject the invitation to do so here.

Finally, the trial court’s finding

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that Jack’s and Sarah’s statements “were specifically recanted and disavowed” is unsupported by the record. The children’s subsequent statements calling into question the reliability of their statements to the DSS investigator and at Dragonfly House are not evidence that all of their statements lacked trustworthiness.

In his Skype interview, Jack stated that while in the car on the way to Dragonfly House, Molly “started making up little stories about my dad, saying that he was abusive.

And then she started crying, and she said if you don’t tell the truth, we’ll never, ever see you again. If you don’t tell this, we’ll never see you again.”

Even if this exchange did occur, it occurred after Jack and Sarah were interviewed by the DSS investigator. Notably, the DSS investigator’s visit was unannounced and Molly was not present at the time.

Jack’s recantation was limited in nature—at most, he recanted his previous claims that his father was abusive toward Molly and the children—not a specific disavowal of every statement he had made during his DSS interview. Accordingly, the record cannot support the trial court’s conclusion that Jack and Sarah “specifically recanted and disavowed” all of the relevant, probative statements they made to the DSS investigator.

The proponents gave proper notice. The substance of Jack’s and Sarah’s statements were not adequately covered by any other source of evidence. Jack’s and Sarah’s statements were material and probative, and their admission serves the interests of justice by enabling Tom and Molly to present an adequate defense. It was an abuse of discretion for the trial court to exclude the statements that Jack and Sarah made in their interviews with the DSS investigator under the residual exception to the hearsay rule contained in Rule 803(24).

The trial court’s erroneous exclusion of Jack’s and Sarah’s testimony meaningfully deprived defendants of the opportunity to support their self-defense claim in several ways.

This error was prejudicial for three reasons.

First, Jack’s statement explaining the presence of the brick paver on Molly’s nightstand would have provided a non-culpable justification for why one of the defendants possessed one of the alleged murder weapons. We agree with the majority below that the state benefited from the unexplained presence of one of two potential murder weapons in the master bedroom (the other weapon was a baseball bat that Tom had brought as a gift for Jack).

Second, Sarah’s statement describing her nightmare and her entry into the master bedroom provided compelling firsthand evidence supporting defendants’ account of how the altercation began.

Third, Jack’s and Sarah’s statements regarding their father’s worsening anger and their characterization of his and Molly’s relationship filled crucial gaps in Molly’s own statement, most notably why she had a brick paver within arm’s reach in her bedroom and why she felt the need to use it under the circumstances as she perceived them.

Without evidence supporting their account of the circumstances leading up to the tragic events of 2 August 2015, it was easier for the

jury to conclude that Tom and Molly had invented their story in an effort to cover up their crime and falsely assert that they acted in self-defense.

A different outcome might reasonably have occurred at trial had the jury been provided with evidence tending to show that the victim was frequently angry and experiencing increased anger over recent months and that the victim and Molly had been awakened that night in a manner known previously to have caused discord in their relationship.

Affirmed.

Dissent

(Berger, J.): Concerning preservation, the majority creates an argument for defendants. In addition, throughout the opinion, the majority reweighs the evidence. Finally, and perhaps most remarkably, the majority engages in a de novo analysis of issues which should be reviewed for an abuse of discretion.

The trial court’s judgments should be affirmed.

The trial court determined the children’s statements at issue did not qualify as statements for the purposes of the medical diagnosis or treatment exception because the trial court found that the children thought the interview was about custody. Given that the children’s statements were not based on firsthand knowledge, but only what they had been told, and that Jack later recanted, we cannot say the trial court abused its discretion.

Any purported errors relating to the trial court’s decision to exclude the children’s statements as evidence did not deprive defendants of a fair hearing on the issue of selfdefense. Moreover, the children’s statements and subsequent recantations were not relevant to Tom’s state of mind. He testified that he was unaware of any acts of violence between the victim and Molly.

State v. Corbett (Lawyers Weekly No. 010-018-21, 76 pp.)

(Anita Earls, J.) (Philip Berger, J., joined by Paul Newby, C.J. and Tamara Barringer, J., dissenting) Appealed from the Superior Court in Davidson County (David Lee, J.) On appeal from the Court of Appeals. Jonathan Babb and Michael Dodd for the state; Douglas Kingsbery, Dudley Witt, David Freedman and Jones Byrd defendants. 2021NCSC-18

Criminal Practice Juvenile Miranda Warnings – Principal’s Office – Silent SRO Even though a school resource officer remained silent at the principal’s side when a 13-year-old middle school student, who was suspected of selling marijuana to a classmate, was called to the principal’s office and was questioned by the principal without the juvenile’s guardian being notified, the juvenile was nevertheless subjected to a custodial interrogation.

We reverse the trial court’s denial of the juvenile’s motion to suppress the confession he made in response to the principal’s questions.

Miranda v. Arizona, 384 U.S. 436 (1966), does not automatically apply to all government actors; rather, it only applies to interrogations conducted by (or in concert with) law enforcement officers. Furthermore,

due to the constraints inherent in the schoolhouse environment, a child is only under custodial interrogation when he is subjected to additional restraints beyond those generally imposed during school.

The following factors are most relevant in determining whether a juvenile is in custody in the context of a schoolhouse interview: (1) traditional indicia of arrest; (2) the location of the interview; (3) the length of the interview; (4) the student’s age; (5) what the student is told about the interview; (6) the people present during the interview; and, (7) the purposes of the questioning.

And the following factors are most relevant to the issue of whether a schoolhouse interview qualifies as an interrogation: (1) the nature of the questions asked (interrogative or mandatory); (2) the willingness of the juvenile’s responses; and, (3) the extent of the SRO’s involvement.

Custody

Thirteen-year-old “Deacon” arrived at school on the morning of 14 March 2019 knowing that he was in trouble—knowing that his classmate had recently been caught with marijuana that Deacon had sold him. In fact, he had been absent from school the prior two days because he was so nervous about what might happen when he returned.

His worries were confirmed when he was summoned to the principal’s office that morning, where both Principal Whitaker and Deputy Sechrist, the school resource officer, were waiting for him. The two authority figures sat together opposite Deacon. Deputy Sechrist was wearing his uniform, and Principal Whitaker was dressed formally in a suit.

Deacon was not told that he was free to go, was not told that he did not have to answer questions, and was not told that he could call his grandmother if he wished. Under these circumstances, no reasonable 13-year-old would have felt free to leave.

Interrogation

Though it is not clear precisely what questions Principal Whitaker asked Deacon, it is clear that Deacon’s grandmother was not contacted until after Deacon had already confessed in response to the questioning. It seems clear that multiple questions were asked before Deacon’s guardian was notified, and that enough were asked to elic-

it a confession. Under these circumstances, both Principal Whitaker and Deputy Sechrist should have known that asking these questions of a 13-year-old (who was already the suspect of a criminal investigation and likely knew he was a suspect, and who had not yet been afforded any ability to contact his guardian), would have been likely to result in an incriminating statement.

Finally, we note that the trial court relied on an erroneous legal standard in concluding that Deacon’s interview was not a custodial interrogation. The trial court based its determination primarily on the “fact” that Deputy Sechrist was not “some strange officer in uniform” and that it was “not unusual in a school setting” for a student “to be called into a principal’s office.”

This is not the test for whether a Miranda warning is required.

Rather, the objective Miranda inquiry turns on (1) the circumstances surrounding the interrogation; and (2) whether given those circumstances, a reasonable 13-year-old would have felt he was not at liberty to terminate the interrogation and leave. The circumstances here were that Deacon, a 13-year-old suspect in a criminal investigation, was called out of class to be questioned in the principal’s office alongside the SRO; was neither told he was free to leave nor that he did not have to answer questions; and was not provided the option of contacting his guardian until after he had already confessed.

The trial court was required to take these circumstances into account to determine whether a reasonable 13-year-old in Deacon’s position would have felt free to terminate the encounter and leave.

There is no indication in the trial court’s order that it considered or applied this standard. Accordingly, the trial court erred in denying the motion to suppress Deacon’s confession; in concluding that the questioning did not amount to a custodial interrogation; and in concluding that Deacon was not entitled to the protections of the Fifth Amendment or G.S. § 7B-2101.

Reversed and remanded.

In re D.A.H. (Lawyers Weekly No. 011-049-21, 39 pp.) (Darren Jackson, J.) Appealed from Surry County District Court (Marion Boone, J.) Vanessa Totten for the state; Jillian Katz for the juvenile.

2021-NCCOA-135

10 / MOST OPINION IMPORTANT DIGESTS OPINIONS Criminal Practice Competence – NGRI – Constitutional – Due Process – First Impression Where a question was raised as to defendant’s capacity to stand trial, the trial court violated defendant’s due process rights when, instead of determining whether defendant was competent, it accepted a plea of not guilty by reason of insanity.

We vacate the finding of not guilty by reason of insanity (NGRI) and remand for a determination of defendant’s capacity.

The trial court held a hearing to determine defendant’s capacity to proceed but made no findings regarding whether defendant was capable of proceeding. The trial court bypassed this necessary step and found defendant NGRI. This error was contrary to the mandate of G.S. § 15A-1002, violated defendant’s right to due process, and prejudiced defendant.

Section 15A-1002 says, “When the capacity of the defendant to proceed is questioned, the court shall hold a hearing to determine the defendant’s capacity to proceed.”

Furthermore, defense counsel lacked authority to enter a plea on defendant’s behalf. The record does not indicate that defendant agreed to, or was even consulted about, a plea of NGRI. The entry of a plea of NGRI, without a prior determination that defendant was capable of proceeding, also violated defendant’s right to due process. Although this court has not found a North Carolina decision directly addressing this issue, other jurisdictions have held that accepting a NGRI plea from an incompetent defendant violates due process.

Finally, the trial court’s error will prejudice defendant. As an insanity acquittee, defendant bears the burden of proof at rehearing to demonstrate that he no longer has a mental illness. G.S. § 122C-276.1(c).

Were he not an insanity acquittee, defendant would not bear this burden of proof.

A criminal defendant who lacks the capacity to proceed is entitled to have his charge dismissed without leave after being confined for the maximum length permissible as a prior record level IV offender. G.S. § 15A-1008(a)(2), (b). Defendant has been confined since March 2019 on a class I felony charge, for which the maximum aggravated sentence at prior record level IV is 21 months.

G.S. § 15A-1340.17(c)-(d).

We vacate the NGRI order and remand for a determination of defendant’s capacity to proceed. If defendant is found incapable of proceeding, the charge against him should be dismissed.

State v. Myrick (Lawyers Weekly No. 011-055-21, 9 pp.) (Jefferson Griffin, J.) Appealed from Bertie County Superior Court (Carlton Cole, J.) Joseph Hyde for the state; James Grant for defendant.

2021-NCCOA-689

Criminal Practice SBM – Statutory Right to Counsel – Ineffective Assistance Claim – First Impression – Speedy Trial – Juror Misconduct Under North Carolina law, indigent parties are entitled to the effective assistance of counsel whenever

they are involved in adversarial proceedings that jeopardize their liberty interests. This right extends to satellite-based monitoring (SBM) proceedings. Where lifetime SBM was ordered without any argument or evidence regarding the reasonableness of the Fourth Amendment search effected by SBM, defendant has shown prejudice and statutory ineffective assistance of counsel with regard to the SBM hearing.

We find no error in defendant’s conviction for taking indecent liberties with a child. We reverse the order imposing lifetime SBM and remand for a hearing on the reasonableness of the imposition of SBM.

SBM

After defendant was convicted of taking indecent liberties with a minor, lifetime SBM was ordered without any argument or evidence regarding the reasonableness of the Fourth Amendment search effected

by SBM. At the hearing, defendant made no argument, objection, or motion that SBM amounted to an unreasonable search. In our discretion, we decline to invoke N.C. R. App. P. 2 to review defendant’s unpreserved argument on direct appeal.

A constitutional claim of ineffective assistance of counsel is not available to defendants in this context because SBM proceedings are civil, not criminal, in nature.

Nevertheless, defendant raises a claim that he received ineffective assistance of counsel under his statutory right to counsel, stemming from G.S. § 7A-451(a)(18) (“An indigent person is entitled to services of counsel” in “[a] proceeding involving placement into satellite monitoring”). Defendant presents an issue of first impression in our Court.

Under North Carolina law, indigent parties are entitled to court-appointed counsel whenever they are involved in adversarial proceedings that jeopardize their liberty interests. The statutory right to counsel includes the right to effective counsel, together with a remedy for the violation of that right.

While our courts have not extended this reasoning to counsel in SBM hearings, we see no reason—and the state makes no argument—that we should not consider defendant’s statutory ineffective assistance of counsel claim. Indeed, our Supreme Court has noted that the imposition of satellite-based monitoring “constitutes a substantial intrusion into [defendants’ Fourth Amendment] interests[.]” State v. Grady, 372 N.C. 509, 831 S.E.2d 542 (2019).

To assert a statutory ineffective assistance of counsel claim on appeal from the imposition of SBM, a defendant must show that counsel’s performance was deficient and that this deficiency was so serious as to deprive him of a fair hearing. To demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel’s errors, there would have been a different result in the proceedings.

Here, defense counsel did not object to the imposition of SBM, raise a constitutional argument regarding the imposition of SBM, or file written notice of appeal from the SBM order. We can discern no strategic reason for counsel to decline to object to or offer a constitutional argument regarding the imposition of SBM in this case.

Prior to defendant’s SBM hearing, our court’s precedent had already established that, in SBM pro-

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ceedings, the state bears the burden of establishing that the imposition of SBM constitutes a reasonable search under the Fourth Amendment, and that the trial court must consider the totality of the circumstances before imposing SBM. Nor can we see a strategic reason for counsel to fail to properly file notice of appeal from the order.

Moreover, it is evident that counsel’s deficient performance prejudiced defendant. A trial court errs where it orders lifetime SBM without evidence that the enrollment constitutes a reasonable Fourth Amendment search.

Had counsel lodged an objection regarding the reasonableness of SBM or appealed from the order imposing lifetime SBM, it is reasonably probable that the result of the proceeding would have been different.

Accordingly, we conclude that defendant received statutory ineffective assistance of counsel with regard to the SBM hearing. We therefore reverse the SBM order and remand with instructions for the trial court to conduct a hearing on the reasonableness of the imposition of SBM.

Other Issues

There was a seven-year delay between defendant’s arrest and his trial, but much of the delay resulted from defendant’s frequent changes of counsel, though some was attributable to the lead investigator suffering a serious illness. Defendant’s assertion that it was “hard to get in touch” with witnesses did not indicate that those witnesses had become unavailable. Where most of the delay was attributable to defendant and not the state, and where defendant has failed to establish that the delay prejudiced his defense, the trial court properly denied defendant’s speedy-trial motion.

During deliberations, a juror spoke to his mother to get “her opinion,” thereafter changing his vote on one count. However, the juror informed the trial court that his conversation with his mother did not change his decision regarding the verdicts, that he based his decision only on the evidence presented at trial, and that he did not discuss the facts of the case with his mother or with anyone else.

The trial court conducted a thorough inquiry into the circumstances and determined from the evidence before that the juror had not been improperly influenced. Defendant has failed to show that the trial court abused its discretion by denying his motion for a mistrial.

No error in part; reversed in part and remanded.

State v. Spinks (Lawyers Weekly No. 011-080-21, 33 pp.) (Valerie Zachary, J.) Appealed from Guilford County Superior Court (Michael Duncan, J.) Scott Slusser for the state; Candace Washington for defendant. 2021-NCCOA-218

Criminal Practice Murder by Starvation – First Impression – Malice – Some Feedings The act of starving another person to death—as defendant did to his four-year-old stepson, Malachi— takes time, during which the defendant has ample opportunity to reflect upon his conduct, to take mercy upon the victim, and to be increasingly

aware of the other person’s condition, with a decision to intentionally deprive another person of needed nutrition and hydration resulting in death being, under such circumstances, inherently malicious as a matter of law. Thus, the malice necessary for guilt of murder is inherent in the intentional withholding of hydration or nutrition sufficient to cause death.

After a bench trial, the trial court did not plainly err by failing to make a separate determination that defendant acted maliciously.

We affirm the Court of Appeals’ decision upholding defendant’s convictions for first-degree murder by starvation and negligent child abuse inflicting serious bodily injury.

The record shows there was food present in defendant’s residence and that Malachi’s siblings received sufficient nutrition and hydration to survive. Although the evidence clearly depicts Malachi as hungry and dehydrated during the months leading to his death, defendant made no effort to seek medical attention for Malachi during that period of time and, at most, fed Malachi only once each day despite the fact that he served as Malachi’s primary caretaker for a great deal of the time. Thus, the record and the trial court’s findings contain ample evidence tending to show that defendant proximately caused Malachi’s death by intentionally depriving him of needed hydration and nutrition, a showing that amply supports the trial court’s decision to convict defendant of murder by starvation pursuant to G.S. § 1417(a).

We reject defendant’s contention that murder by starvation is limited to situations involving the complete deprivation of hydration and nutrition. Under that definition, a person who kills someone by withholding virtually all, but not all, food and drink would not be guilty of murder by starvation.

A pathologist originally attributed Malachi’s death to malnutrition. After defendant changed his story to say he had choked Malachi and thrown him across the room, the pathologist amended his autopsy report to attribute Malachi’s death to asphyxia secondary to strangulation. Nonetheless, the record clearly demonstrates that his opinion to that effect rested solely upon the information that defendant provided in his final police interview. Defendant later recanted.

Nevertheless, there was ample expert support for a determination that Malachi died of starvation. Pediatric neurologist Stephanie Robinett said the only that would make a child look like Malachi was “starvation.” Furthermore, the pathologist’s initial autopsy report appears to have been admitted into evidence without limitation, so the trial court was entitled to rely on the pathologist’s initial conclusion that “malnutrition may be the immediate cause of death…”

Finally, there was no fatal variance between the child abuse indictment and the evidence. The indictment charging defendant with negligent child abuse inflicting serious injury alleges that defendant failed to provide Malachi “with medical treatment” for over one year, “despite the child having a disability,” and with failing to “[provide] the child with proper nutrition and medicine, resulting in weight loss and failure to thrive.” The trial court’s determinations that defendant “[allowed] the child to remain

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in soiled diapers until acute diaper rash formed on the [child’s] groin and bottom,” resulting in “open sores and ulcers,” and that defendant kept “the child in a playpen for so long a period of time that bed sores formed on [his] legs and knees” are fully consistent with the grand jury’s allegations that defendant deprived Malachi of medical treatment, resulting in the infliction of serious bodily injury. As a result, we hold that the trial court’s findings and the relevant allegations of the indictment are fully consistent with each other.

Affirmed.

State v. Cheeks (Lawyers Weekly No. 010-064-21, 36 pp.) (Sam Ervin, J.) Appealed from the Superior Court in Gaston County (Hugh Lewis, J.) On appeal from the Court of Appeals. Kimberly Callahan for the state; Daniel Shatz for defendant.

2021-NCSC-69

Criminal Practice Speeding – Jury Trial Waiver – Judge’s Colloquy – Mid-trial After defense counsel notified the trial court that defendant wished to waive a jury trial, the trial court did not conduct the colloquy with defendant required by G.S. § 15A-1201 until after the state rested its case. This statutory violation was not structural error.

We affirm the Court of Appeals’ decision to uphold defendant’s conviction of speeding 94 mph in a 65-mph zone.

When the trial court conducted its colloquy with defendant, defendant had the unique authority to compel the trial court to declare a mistrial. Defendant’s desire to be tried in a bench trial was affirmed after he heard the state’s evidence, knew that the trial court had erred, and was given the opportunity to revoke the waiver and start anew; instead, he reaffirmed the waiver.

Further, there was overwhelming evidence of defendant’s guilt, and defendant has not met his burden as there is no reasonable possibility that had the error in question not been committed, a different result would have been reached in a bench trial or a jury trial.

Affirmed.

Dissent

(Ervin, J.): In order to ensure that a defendant’s waiver of the right to a jury trial satisfied the constitutional requirement that it be knowing and voluntary, the General Assembly has prescribed prerequisites that must be satisfied before a knowing and voluntary waiver can be said to have occurred. Here, jeopardy had already attached and the vast majority of the trial had already been completed before the trial court personally addressed defendant to determine whether he wished to waive his right to trial by jury. Even more importantly, the trial court failed to “determine whether the defendant fully [understood] and [appreciated] the consequences of [his] decision to waive the right to trial by jury.” G.S. § 15A-1201(d)(1).

Although N.C.G.S. § 15A-1201(d) (1) clearly contemplates that the trial court would personally determine that the defendant understood the consequences of his or her decision to waive the right to a jury trial, the trial court, instead, asked defendant’s trial counsel to “explain that to your client.”

According to decisions of this court in the waiver-of-counsel context, the trial court is not entitled to delegate responsibility for explaining the consequenc-

es of a decision to waive a constitutional right to the defendant’s attorney.

Moreover, the record is completely silent with respect to what, if anything, defendant may have been told by his trial counsel during the conversation that was held in response to the trial court’s request.

Finally, the trial court’s colloquy with defendant was limited to an inquiry concerning whether defendant consented to his trial counsel’s actions in waiving his right to a jury trial and whether defendant understood that he was charged with speeding coupled with a statement that the speeding offense “[carried] a possible fine” and might “carry [the] possibility of a 20day jail sentence.” For that reason, given the trial court’s failure to explain that defendant had the right to be tried by a jury rather than by the trial court sitting without a jury and what the two methods of proceeding in defendant’s case might entail, there is nothing in the record which shows that defendant understood and appreciated the consequences of” waiving his right to trial by jury.

I am unable to join my colleagues in concluding that the trial court’s delayed colloquy constituted a mere “technical” violation of § 15A-1201(d) and believe, instead, that the trial court’s noncompliance with § 15A1201(d)(1) was substantial.

Given that a conviction by 11 or 13, rather than 12, jurors results in error per se, a conviction obtained without a valid waiver of the right to a jury must constitute error per se as well, entitling defendant to a new trial.

State v. Hamer (Lawyers Weekly No. 010-070-21, 27 pp.) (Philip Berger, J.) (Sam Ervin, J., joined by Robin Hudson & Anita Earls, JJ., dissenting) Appealed from the Superior Court in Orange County (Michael O’Foghludha, J.) On appeal from the Court of Appeals. Robert Ennis for the state; Michael Spivey for defendant.

2021-NCSC-67

Criminal Practice Search & Seizure – Warrant Affidavit – Timing of Events – First Impression Where the affidavit in support of a search warrant application lacked information as to when the alleged events occurred, the application was insufficient to allow the magistrate to find probable cause to search defendant’s premises.

We reverse the trial court’s denial of defendant’s motion to suppress, vacate defendant’s convictions for possession of a firearm by a felon and attaining habitual felon status, and remand for a new trial.

Defendant, a convicted felon, threw a party at his auto detail shop. Police officers responding to a noise complaint detected a strong odor of burnt marijuana. The officers applied for and obtained a warrant to search defendant’s premises, where they located several firearms.

Our court has not previously determined whether a search warrant affidavit based on officers’ personal observations is fatally defective where the affidavit fails to specify when the purported facts occurred.

We hold that the search warrant at issue was invalid on the ground the affidavit lacks a sufficient nexus between the odor of marijuana and the building to be searched at the time the warrant was executed. Our holding is consistent with the rule of law that a magistrate must be able to reasonably infer when alleged facts occurred to

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The supporting affidavit to the search warrant application was completely devoid of any indication as to when the events used to establish probable cause occurred. The affidavit did not include the date on which the officers’ investigation began, the date when the officers were dispatched to defendant’s address, the date when the officers spoke to defendant regarding loud music, or the date when the officers smelled marijuana coming from inside defendant’s building.

The magistrate could not reasonably conclude that the search warrant application established probable cause because it failed to provide facts so closely related to the time of issuance of the warrant, as required for a valid search warrant.

To allow issuance of a search warrant without such essential temporal information would encourage magistrates to make speculations and assumptions regarding probable cause, which would in turn violate constitutional protections against unreasonable searches and seizures. The state has provided no arguments on appeal to justify the officers’ otherwise warrantless search. Therefore, we hold the trial court erred in denying defendant’s motion to suppress where the supporting affidavit provided no indication as to when the alleged criminal activities occurred. The affidavit was invalid; thus, any evidence obtained as a result of the search warrant was erroneously admitted at trial.

New trial.

State v. Logan (Lawyers Weekly No. 011-123-21, 22 pp.) (Jeff Carpenter, J.) Appealed from Cleveland County Superior Court (Gregory Hayes, J.) Joseph Elder for the state; Michael Spivey for defendant.

2021-NCCOA-311

Criminal Practice Probation Revocation – First Impression – Superior Court Jurisdiction – Waiver of Revocation Hearing Under the plain language of G.S. § 15A-1347(b), where defendant waived his revocation hearing, and where the district court activated his sentences, the superior court lacked jurisdiction to hear defendant’s appeal.

We vacate the superior court judgment and reinstate the district court judgment.

State v. Flanagan (Lawyers Weekly No. 011-171-21, 12 pp.) (April Wood, J.) Appealed from Stokes County Superior Court (Angela Puckett,

J.) Robert Ennis for the state; Jason Christopher Yoder for defendant.

2021-NCCOA-456

Criminal Practice Multiple Assault Charges – First Impression – Distinct Interruption According to the victim’s testimony, defendant first beat her for two hours while they were inside her parents’ beach trailer. The beating stopped while the couple packed up and got in their car to go home. Defendant then assaulted the victim again during their two-hour drive home. On these facts, the state could charge defendant with two separate assaults.

We direct the trial court to vacate defendant’s conviction for assault on a female and to resentence defendant.

Thus modified, we affirm the Court of Appeals’ decision to uphold defendant’s remaining two assault convictions. On the issue of whether defendant used his hands, feet or teeth as deadly weapons, the members of this court are equally divided. Accordingly, the decision of the Court of Appeals— that defendant used his hands, feet or teeth as deadly weapons—stands without precedential value.

After being charged with five assaults arising out of his beating of the victim, defendant was found guilty of (1) assault with a deadly weapon inflicting serious injury (AWDWISI) resulting in the rupture of the victim’s eardrum, (2) assault on a female in connection with head-butting the victim and (3) AWDWISI resulting in the fracture of the victim’s nose. Our Court of Appeals upheld the three assault convictions.

On a matter of first impression, we are asked to determine what exactly constitutes an assault and how a court may determine whether there is substantial evidence of multiple assaults or only a single assault.

“Assault” is not defined by statute but by common law. This court generally defines the common law offense of assault as an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.

We have not found, and the parties have not presented, any evidence or indication that the General Assembly intended for the state to be able to charge someone with a separate assault for

12 / MOST OPINION IMPORTANT DIGESTS OPINIONS every punch thrown in a fight. Thus, we must look beyond the number of physical contacts with the victim to determine whether more than one assault has occurred such that the state can appropriately charge a defendant with multiple assaults.

In its decisions involving this issue, the Court of Appeals has required that, in order for a criminal defendant to be charged and convicted of two separate counts of assault stemming from one transaction, the evidence must establish a distinct interruption in the original assault followed by a second assault, so that the subsequent assault may be deemed separate and distinct from the first. We agree with the Court of Appeals that the State may charge a defendant with multiple counts of assault only when there is substantial evidence that a distinct interruption occurred between assaults.

Given the differences between the thought processes involved and the broad definition of “assault,” we decline to apply State v. Rambert, 341 N.C. 173 (1995) – in which the firing of three bullets led to three convictions of discharging a firearm into occupied property – to assault cases generally.

Furthermore, the fact that a victim has multiple, distinct injuries alone is not sufficient evidence of a distinct interruption such that a defendant can be charged with multiple counts of assault.

In this case, the victim testified that, after the beating in the trailer, but before defendant began beating her in the car, she wiped down the mattress cover and took the sheets off of the bed, she took their luggage out to the car, and defendant got his daughter off of the couch and put her in the back seat of the car. This is substantial evidence of a distinct interruption between occurrences in the trailer and those in the car. The process of cleaning up and packing up was an intervening event interrupting the momentum of the attack.

In addition, the beating in the trailer was distinct in time and location from the beating in the car.

The jury could have found that there was a distinct interruption between when the first assault concluded with the victim vomiting on the bed and when defendant resumed his attacks in the car during the drive home.

Accordingly, we conclude that the jury could find that the beating in the trailer and the beating in the car were distinct assaults.

Two of defendant’s convictions—assault on a female in connection with head-butting the victim and AWDWISI resulting in the fracture of the victim’s nose—arose from the attack in the trailer. Since the state’s evidence showed an ongoing, continuous attack in the trailer, there is substantial evidence of only one assault in the trailer.

On remand, the trial court should vacate the judgment for the assault on a female and enter a new sentence for the remaining offenses.

Affirmed as modified; remanded for resentencing.

State v. Dew (Lawyers Weekly No. 010-117-21, 19 pp.) (Robin Hudson, J.) Appealed from the Superior Court in Carteret County (John Nobles, J.) Wes Saunders for the state; Daniel Shatz for defendant. 2021-NCSC-134

Domestic Relations Parent & Child – Support – Paternity – Virginia Sperm Donor – Choice of Law – First Impression It was in Virginia that (1) defen-

dant and the plaintiff-mother entered into a “verbal contract” pursuant to which defendant donated sperm, (2) the mother lived during the entirety of her pregnancy, (3) the child was born, and (4) the mother and child lived together for the first several years of the child’s life. Pursuant to North Carolina’s choice of law test, Virginia law will determine whether defendant qualifies as a “parent” of the minor child.

We reverse the trial court’s ruling that North Carolina law governs in this case, which seeks to establish defendant’s paternity and child support obligation.

Background

Some years after the child’s birth, the mother moved with the child to California and began receiving public assistance. Defendant was residing in Norlina, and the Warren County Department of Social Services filed suit alleging defendant was the father of the child and was obligated to pay child support.

Defense counsel explained that, under a Virginia statute, a sperm donor does not legally qualify as a parent and thus defendant did not owe any child support under Virginia law.

DSS argued that North Carolina law should apply as a matter of public policy. The trial court applied North Carolina law, adjudicated defendant to be the biological father of the child, and ordered him to pay past-due and continuing child support.

Choice of Law

First, the Full Faith and Credit Clause is inapplicable here because this case does not involve an existing judgment or order from another state.

At issue is whether we should apply the substantive law of Virginia or North Carolina in adjudicating the question of paternity.

Under North Carolina choice of law rules, we apply the substantive law of the state where the cause of action accrued and the procedural rules of North Carolina. Does a paternity statute qualify as a procedural or substantive law? We conclude that a paternity law is substantive in nature and thus that the lex loci test should be applied.

A “substantial right” has been defined by this court as “a legal right affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which a person is entitled to have preserved and protected by law.” Bluebird Corp. v. Aubin, 188 N.C. App. 671, 657 S.E.2d 55 (2008).

A law that formally adjudicates a person’s status as a parent (or nonparent) of a child meets this definition, as parenthood is one of the most fundamental protected rights in our entire legal system. We accordingly conclude that the lex loci test should be applied to determine which state’s paternity law governs this dispute.

This court has not previously had occasion to address what qualifies as “the situs of the claim” when the claim in question is a paternity claim or child support claim. We conclude that the proper “situs of the claim” of the parties’ paternity dispute is Virginia.

Virginia is the state where defendant and the mother entered into a “verbal contract” regarding the artificial insemination; Virginia is where the artificial insemination occurred; Virginia is where the mother lived during the entirety of her pregnancy; Virginia is where the child was born; and Virginia is where the mother and

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child lived together for the first several years of the child’s life. Under the lex loci tort theory, Virginia thus qualifies as the state where the last event necessary to make the actor liable occurred, in that it was the state where the mother was impregnated and gave birth.

Under the lex loci contractual theory, Virginia also qualifies as the state where the contract was executed, in that it was the state where the mother and defendant entered into a “verbal contract” regarding the artificial insemination.

Following the paternity laws of the state where the child is conceived not only fulfills the parties’ natural expectations, but also helps ensure predictable and equitable results. If we were to accept DSS’s arguments—and hold that a paternity action is simply governed by the laws of whichever state the plaintiff chooses to sue in—this would encourage forum-shopping, as a parent seeking a paternity determination could simply travel to whichever state has the most favorable laws. We cannot condone such a result, and instead conclude that, under our state’s choice of law principles, we must follow the paternity law of the state where the insemination and conception occurred. Because that state here is Virginia, the trial court erred in applying North Carolina law to this matter.

Reversed and remanded.

Warren County Department of Social Services ex rel. Glenn v.

Garrelts (Lawyers Weekly No. 011103-21, 13 pp.) (Darren Jackson, J.) Appealed from Warren County District Court (Adam Keith, J.) Mitchel Styers and Jill Neville for defendant; no brief for plaintiff. 2021-NCCOA-275

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-Ohio1395 (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

Business Excess Policy – Attorneys – Lawsuit Defense – ‘Knowing’ & ‘Willful’

Equitable Distribution – Marital Debt – Student Loans – Adult Daughter – First Impression

The defendant-attorney and -law firm were sued in a class action for violating the federal Driver’s Privacy Protection Act of 1994 (DPPA) based on their use of DMV records to send marketing materials to individuals who had been involved in automobile accidents. A knowing violation of the DPPA, which gives rise to a civil claim, is also a violation of the penal provision of the DPPA, 18 U.S.C. § 2723. Since the parties’ business excess insurance policy excludes coverage for advertising injury “arising out of the willful violation of a penal statute…” and since the words “willful” and “knowing” carry essentially equivalent meanings, the plaintiffinsurer had no duty to defend defendants in the underlying class action.

We affirm summary judgment for the insurer.

The class-action complaint alleged, “Defendants knowingly obtained, disclosed and used Plaintiffs’ personal information from a motor vehicle record in violation of the DPPA.” 18 U.S.C. § 2723 criminalizes knowing violations of the DPPA. The dispositive issue is whether the class-action plaintiff’s allegations of “knowingly” violating the DPPA has the same meaning as “willfully” doing so. Neither the parties’ insurance policy nor the DPPA defines “knowingly” or “willfully.”

Webster’s New World College Dictionary (5th ed. 2014) defines both “knowingly” and “willfully” as deliberate or deliberately. Our General Assembly and our appellate courts have used both words in tandem and interchangeably in both criminal and civil contexts.

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

Insurance

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We conclude that the words “willful” and “knowing” carry essentially the same or equivalent meanings. An allegation of a “knowing” violation of the DPPA is an allegation of a “willful” violation of the DPPA. The injury alleged in the underlying complaint, which is based upon defendants having “knowingly obtained, disclosed and used [the class-action] Plaintiffs’ personal information from a motor vehicle record in violation of the DPPA,” is injury arising out of the “willful” violation of a penal statute and that violation is excluded from coverage under the plain terms of the parties’ policy.

Affirmed.

North Carolina Farm Bureau Mutual Insurance Co. v. Lanier Law Group, P.A. (Lawyers Weekly No. 011-088-21, 14 pp.) (John Tyson, J.) Appealed from Guilford County Superior Court (Susan Bray, J.) David Brown and Martha Brown for plaintiff; Richard Pinto and Matthew Millisor for defendants. 2021-NCCOA-233

Insurance Commercial Liability – Assignability – Excess Coverage Where (1) plaintiff purchased an already-burned chicken processing plant, (2) the seller assigned to plaintiff its right to recover under various commercial liability policies, and (3) plaintiff seeks to recover from the defendant-excess insurers (after recovering from the seller’s primary insurer), North Carolina law does not

bar the excess insurers from asserting their policies’ restrictions on assignments, even when the assignment was made post-loss.

The court grants in part and denies in part defendants’ motions to dismiss.

Plaintiff Brakebush Brothers Inc. argues that First-Citizens Bank and Trust Co. v. Universal Underwriters Ins. Co., 113 N.C. App. 792 (1994), establishes that the validity of a postloss assignment of proceeds can never be restricted by the language of an insurance policy. The excess insurers, in turn, cite Terrell v. Lawyers Mut. Liab. Ins. Co., 131 N.C. App. 655 (1998), a later decision, for the proposition that North Carolina courts do, in fact, enforce such provisions.

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. Brakebush’s reliance on First-Citizens Bank is misplaced as the decision in that case was based on an interpretation of the specific language used in the insurance policy at issue.

Brakebush contends the excess insurers waived their right to enforce anti-assignment provisions because the excess insurers have already made a partial payment to Brakebush. However, the excess insurers made the partial payment pursuant to an express reservation of rights. In a letter to Brakebush’s counsel, counsel for the excess insurers stated, “The Insurers have and continue to reserve all rights under the relevant policy language regarding an assignment of

MOST IMPORTANT OPINIONOPINIONS DIGESTS / 13 rights under the subject Policies.”

Although the court has been unable to identify a North Carolina case involving the issue of whether a reservation of rights letter was effective to preclude waiver of an anti-assignment clause in an insurance policy, North Carolina courts have recognized the ability of an insurer to take action favorable to the insured subject to a reservation of rights.

Moreover, the court is not persuaded by Brakebush’s contention that the excess insurers’ demand that Brakebush fill out a standard proof of loss form constituted a waiver of their right to contest the validity of the assignment at issue. Even though the proof of loss forms may have identified Brakebush as “Assignee,” the mere use of this form—without more—is simply insufficient to show an intentional waiver by the excess insurers of their right to challenge Brakebush’s status as an assignee.

Upon review of the language of the excess insurers’ various policies, the court rules that the broad anti-assignment language of three of the policies deprives Brakebush of standing to assert claims thereunder. Brakebush is likewise barred from bringing claims for bad faith or unfair trade practices against these defendants.

With respect to the remaining excess insurers—whose policies’ antiassignment language is ambiguous or inapplicable—the court rejects their arguments that Brakebush may not bring bad faith and unfair trade practices claims against them on the basis that Brakebush is a “stranger” to the policies.

The bad faith and unfair trade

practices claims at issue are not claims that previously belonged to the seller and were then assigned to Brakebush. Rather, they are claims that never belonged to the seller. Instead, Brakebush seeks to bring these claims based on the insurers’ conduct toward Brakebush in the course of its attempt to collect post-loss proceeds under the policies as an assignee. Indeed, the conduct forming the basis for Brakebush’s bad faith and unfair trade practices claims occurred after the assignment from the seller to Brakebush.

The excess insurers cite cases which arose in the context of a claim against an insurer brought by an adverse third-party claimant. In those cases, our Court of Appeals held that a bad faith claim is unavailable to an adverse third-party claimant suing under an insurance policy of another.

Similarly, the Court of Appeals has stated that “North Carolina law does not recognize a cause of action for third-party claimants against the insurance company of an adverse party based on unfair and deceptive trade practices under N.C.G.S. § 75-1.1.”

Brakebush cannot properly be viewed as a third-party claimant. By virtue of the assignment from the seller, Brakebush stepped into the seller’s shoes with respect to the right to collect post-loss proceeds under the excess policies. The excess insurers have not cited any case from North Carolina’s appellate courts holding that a bad faith or unfair trade practices claim was barred under the circumstances presented here.

Moreover, a contrary ruling would mean that even though a party in

14 / MOST OPINION IMPORTANT DIGESTS OPINIONS 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. 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. The remaining excess insurers’ motion to dismiss the bad faith and Chapter 75 claims under N.C. R. Civ. P. 12(b)(1) is denied.

Their motion to dismiss under N.C. R. Civ. P. 12(b)(6) is also denied.

Among other allegations, the complaint asserts that the excess insurers’ own documents showed that the extent of the damage incurred from the fire was approximately $1.5 million higher than the amount they paid to Brakebush and that the excess insurers subsequently refused to provide an explanation for their refusal to pay the higher amount. Construing the allegations in the light most favorable to Brakebush, as the court is required to do at this stage, the court concludes that Brakebush’s allegations are sufficient to state claims for bad faith and unfair trade practices.

Motions granted in part, denied in part.

Brakebush Bros., Inc. v. Certain Underwriters of Lloyd’s of London (Lawyers Weekly No. 020070-21, 38 pp.) (Mark Davis, J.) Susan Boyles, Eric Weisenburger and Vernle Durocher for plaintiff; Gray Wilson, Stuart Russell, Timothy Jabbour, Anthony Tessitore, Kiera Fitzpatrick, Clark Schirle, Khrystyne Smith, Andrew Watson, and Bryan Scott for defendants. 2021 NCBC 70

enjoyment of the fruits of their own labor, and the pursuant of happiness.” This guarantee has no federal constitutional analog. It was added to our state constitution at a time when formerly enslaved persons were newly able to work for their own benefit.

In Tully v. City of Wilmington, 370 N.C. 527, 810 S.E.2d 208 (2018), our Supreme Court held that “to state a direct constitutional claim grounded in this unique right under the North Carolina Constitution, a public employee must show that no other state law remedy is available and plead facts establishing three elements: (1) a clear, established rule or policy existed regarding the employment promotional process that furthered a legitimate governmental interest; (2) the employer violated that policy; and (3) the plaintiff was injured as a result of that violation.”

Although this case does not involve a promotion, we follow the reasoning of Tully to determine that plaintiff has stated a claim under Article I, § 1. He has alleged (1) a clear, established policy that was designed to further the legitimate government interest that the city’s employees be treated fairly in the administration of discipline; (2) that the city violated this policy; and (3) that he was injured as a result of the violation.

Plaintiff specifically alleges that “[h] ad [he] been afforded his opportunity . . . to prepare at a minimum of three days instead of less than 24 hours, [plaintiff] would have had reasonable notice and could have better prepared and provided a more comprehensive response.”

Labor & Employment

Due Process & Equal Protection

Municipal Employment – Constitutional – Fruits of Labor – Due Process & Equal Protection Where plaintiff alleges that the defendant-city violated its own personnel policies—by giving him only one day instead of at least three days to prepare for a pre-disciplinary hearing—plaintiff has stated a claim under N.C. Const. art. I, § 1 for violation of his right to enjoy the fruits of his own labor.

We affirm the trial court’s dismissal of plaintiff’s due process and equal protection claims. We reverse the dismissal of plaintiff’s claim of a violation of N.C. Const. art. I, § 1.

Facts

During a stand-off with a suspect, the plaintiff-police sergeant convinced the suspect to surrender.

As part of the negotiations, plaintiff convinced the suspect not to smoke his marijuana blunt until after he was arrested. After the suspect handcuffed himself, plaintiff kept his word and allowed the suspect to smoke the blunt.

Following the suspect’s peaceful surrender, the defendant-city’s police department launched an internal investigation of plaintiff’s actions.

About four months after the incident, plaintiff was informed in writing that a pre-disciplinary hearing would be held the next day, despite the city’s written policy requiring advance notice of at least three days. Following the hearing, plaintiff’s immediate supervisors recommended that he be reprimanded, but the city fired him.

Fruits of Labor

N.C. Const. art. I, § 1 ensures each person the right to “life, liberty, the

Plaintiff’s due process claim fails because of N.C. Supreme Court precedent holding that employees in this state generally do not have a property interest in continued employment.

The city’s internal personnel policies, which have not been enacted as an ordinance, do not give rise to a protected property interest.

Plaintiff seeks to assert a class-ofone equal protection claim by arguing that he was situated similarly to other police officers who violated department policies and received significantly less severe discipline.

But the U.S. Supreme Court has held that class-of-one clams cannot be stated in the employment context, and this court has held that the equal protection rights guaranteed by the N.C. Constitution are the same as those in the U.S. Constitution.

Affirmed in part, reversed in part and remanded.

Mole’ v. City of Durham (Lawyers Weekly No. 011-199-21, 26 pp.)

(Lucy Inman, J.) Appealed from Durham County Superior Court (John Dunlow, J.) Michael McGuinness and Travis Payne for plaintiff; Henry Sappenfield and Michele Livingstone for defendant; Norris Adams for amicus curiae. 2021-NCCOA-527

Real Property Restrictive Covenants – Solar Panels – ARC Denial – First Impression A subdivision’s restrictive covenants give its architectural review committee (ARC) discretion over all “improvements,” and the covenants’ definitions are expansive enough to include solar panels. As a result, G.S. 22B-20(d) allows the ARC to prohibit homeowners from installing solar panels on street-facing roofs, even

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if placing the panels on the opposite side of the roof would not be economically feasible.

We affirm summary judgment for the plaintiff-homeowners’ association.

Without following the restrictive covenant requirement of seeking ARC approval for improvements, the defendant-homeowners installed solar panels on the south- and streetfacing part of their roof. When the ARC sent defendants a notice of violation, defendants submitted an application. The ARC denied the application, and plaintiff upheld the ARC’s decision.

G.S. 22B-20 generally prohibits restrictive covenants that would prevent the installation of solar panels.

However, subsection (d) allows for a covenant or similar agreement to prohibit the location of solar panels that are visible from the ground in specific places.

While the declaration does not expressly address solar panels, the ARC has discretionary power that has an “effect of prohibiting” their installation in the statutorily specified areas. Solar panels are an “improvement” within the meaning of the declaration, and defendants were required to apply and receive written approval before installing them. In the ARC’s denial of defendant’s appeal letter, it found that the solar panels were on the roof that slopes downward toward the façade of the home facing the public and common areas, and clearly visible from the street. This is a statutorily specified location within the purview of subsection (d). Additionally, the ARC had rejected at least four other applications to install solar panels from other homeowners in the community on the same grounds that they are inconsistent with the plan and scheme of development of the subdivision.

Defendants are subject to the declaration, which provides that the ARC has the sole discretion to deny the installation of improvements to their property that do not comport with aesthetics or the common scheme of development. The ARC does not appear to have acted arbitrarily or in bad faith. It exercised its powers in line with a consistent policy, and within the scope of § 22B20(d).

G.S. § 22B-20(d) is applicable in this action because the declaration has the effect of prohibiting the installation of solar panels “on a roof surface that slopes downward toward the same areas open to common or public access that the façade of the structure faces.” § 22B-20(d).

The trial court correctly granted summary judgment for plaintiff.

Affirmed.

Dissent

(Jackson, J.): Section 22B-20 applies to plaintiff’s refusal to approve the installation of defendants’ solar panels because subsection (b) of the statute invalidates land use restrictions that have the effect of prohibiting the installation of solar panels on residential property, even if the restriction does not explicitly prohibit solar panels.

Subsection (d) of § 22B-20, relied upon by the majority, does not provide an exception for a land use restriction that effectively prohibits the installation of solar panels unless the restriction appears in a pre-existing “deed restriction, covenant, or similar binding agreement that runs with the land” related to “[prohibiting] the location of solar collectors ... visible

by a person on the ground[,]” as subsection (d) unambiguously provides.

In holding otherwise, the majority ignores the words “have the effect of prohibiting” in subsection (b), while reading these same words into subsection (d), where they do not exist. Subsection (d) does not provide an exception from subsection (b) for restrictions that effectively prohibit the installation of solar panels on residential property in “deed restriction[s], covenant[s], or similar binding agreement[s] that run[] with the land that would prohibit[, or have the effect of prohibiting,] the location of solar collectors[.]” The italicized words in the preceding sentence do not exist in subsection (d). They do, however, exist in subsection (b).

Reading the words “have the effect of prohibiting” into subsection (d) and out of subsection (b) ignores the deliberate choice made by the General Assembly to use the words “effect of preventing” in subsection (b) of § 22B-20 and not in subsection (d), a choice we must presume the legislature carefully made. This choice demonstrates that the General Assembly intended for the exception created by subsection (d) to be unavailable unless there was an existing “deed restriction, covenant, or similar binding agreement that runs with the land that would prohibit the location of solar collectors . . . that are visible by a person on the ground[.]” § 22B-20(d). The majority ignores this choice and reads the exception to swallow the rule.

The covenants in question are “covenant[s] ... that run[] with the land that ... have the effect of prohibiting[] the installation of a solar collector[.]” § 22B-20(b). Thus, under § 22B-20(b), these covenants should be “void and unenforceable.” As shown by the materials submitted in support of defendants’ appeal of their architectural request, the declaration contains covenants “that could have the ultimate effect of driving the costs of owning and maintaining a residence beyond the financial means of most owners.” § 22B-20(a).

The General Assembly gave developers subsection (d) so that if they wanted to create covenants with a limited prohibition of solar panels, they could do so by expressly recording the language of subsection (d) in their restrictive covenants, providing potential buyers with notice of their intention to take advantage of the limited, allowable prohibitions.

Plaintiff failed to take advantage of this safe harbor.

Finally, the majority also erroneously construes the declaration as more restrictive than its terms require, violating the rule of strict construction that governs the interpretation of restrictive covenants.

Belmont Association v. Farwig (Lawyers Weekly No. 011-073-21, 29 pp.) (Fred Gore, J.) (Darren Jackson, J.) Appealed from Wake County Superior Court (Graham Shirley, J.) Hope Derby Carmichael, Brian Edlin and Mollie Cozart for plaintiff; James Galvin and Alexander Warner for defendants. 2021-NCCOA-207

Schools & School Boards Constitutional – Sound Basic Education – Student-on-Student Harassment – Deliberate Indifference The plaintiff-elementary school students allege that the defendant-local school board was deliberately in-

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different to harassment by other students that was so severe as to deprive plaintiffs of their constitutional right to a sound basic education. Plaintiffs have stated a claim for violation of their state constitutional rights, and sovereign or governmental immunity cannot bar such claims.

We reverse the Court of Appeals’ decision, which reversed the trial court’s denial of the school board’s motion to dismiss on the basis of governmental immunity.

Allegations

Plaintiff-student C.E.D. was physically bullied by Students #1 and #2, and she was sexually harassed by Students #3 and #4. C.E.D.’s siblings, plaintiffs E.M.D. and K.A.D., experienced similar sexual harassment by Student #3.

Despite repeated complaints by C.E.D. and her plaintiff-mother, school personnel insisted that there was a “process” that would “take time.” Meanwhile, the bullying and

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harassment continued.

Ultimately, the mother transferred the children to a different school.

Analysis

The trial court denied the school board’s motion to dismiss, but our Court of Appeals reversed. In the Court of Appeals’ view, N.C. Const. art. 1, § 15 extends no further than the availability of a sound basic education. However, the right to the “privilege of education” and the state’s duty

to “guard and maintain” that right extend to circumstances where a school board’s deliberate indifference to ongoing harassment prevents children from receiving an education.

Article I, § 15 provides, “The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.” This 1986 provision was intended to mark a new and more positive role for state government. It requires a commitment to social betterment through

16 / MOST OPINION IMPORTANT DIGESTS OPINIONS educational opportunities.

Article IX, § 2 implements the right to education: “The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools ... wherein equal opportunities shall be provided for all students.”

Taken together, Article I, § 15 and Article IX, § 2 require the government to provide an opportunity to learn that is free from continual intimidation and harassment which prevent a student from learning. In other words, the government must provide a safe environment where learning can take place.

In order to allege a cause of action under the North Carolina Constitution, a complaint must allege (1) that a state actor violated an individual’s constitutional rights, (2) a colorable claim and (3) that there is no adequate state remedy. A claim that is barred by sovereign or governmental immunity is not an adequate remedy.

Here, the complaint alleged that the school board failed to protect the plaintiff-students’ constitutionally guaranteed right to education by being deliberately indifferent to harassment by other students. The allegations support plaintiffs’ contention that the government did not “guard and maintain” the students’ right to a sound, basic education. Finally, the remedy sought here—monetary damages and a permanent injunction barring defendant from requiring the plaintiff-students to attend Lakeforest Elementary—cannot be redressed through other means.

Thus, the complaint alleges a colorable constitutional claim for which no other adequate state-law remedy exists. Therefore, sovereign or governmental immunity cannot bar plaintiffs’ claim.

Doe v. Charlotte-Mecklenburg Board of Education, 222 N.C. App. 359, 731 S.E.2d 245 (2012), in which the Court of Appeals found no colorable state-constitutional claim based on a teacher’s sexual activity with a high school student, is not binding on this court. Moreover, it is distinguishable in that the allegations here both go directly to the nature, extent and quality of the educational opportunities made available to the plaintiffstudents, as well as indicate that the government failed to guard and maintain their constitutional right to a sound basic education.

Reversed in part; discretionary review improvidently allowed in part.

Deminski v. State Board of Education (Lawyers Weekly No. 010-057-21, 16 pp.) (Paul Newby, C.J.) Appealed from the Superior Court in Wake County (Vince Rozier, J.) On appeal from the Court of Appeals. Troy Shelton, Nis Leerberg and Ashley Honeycutt Terrazas for plaintiffs; Deborah Stagner, Edwin Speas and Caroline Mackie for defendant; Daniel Siegel, Kristi Graunke, Lisa Grafstein, Virginia Fogg, Maria Perry, Mark Dorosin, Elizabeth Haddix, Elizabeth Troutman, Jill Wilson and Allison Brown Schafer for amici curiae. 2021-NCSC-58

Schools & School Boards Tort/Negligence – Duty of Care – Special Needs Student – Bus Driver – Independent Contractor – First Impression While the defendant-school board owes its students a duty of care com-

mensurate with the students’ level of maturity, G.S. § 115C-253 allowed the school board to delegate this duty to an independent contractor. Before hiring a private school transportation company, the board researched and reviewed the private company’s reputation and safety plans, so the school board is not liable in negligence for the injuries suffered by a special needs student who was repeatedly sexually assaulted by her school bus driver.

We affirm summary judgment for the school board.

Equal Protection

Since the complaint makes no factual allegations that would establish that the plaintiff-student (Lauren) was treated differently from similarly situated male students, the complaint fails to state an equal protection claim based on Lauren’s gender.

Although the complaint alleges that Lauren was denied equal protection on the basis of her disability, the disabled are not a suspect or quasi-suspect class entitled to special protection under the Equal Protection Clause.

Failure to Train & Supervise

Our courts have not yet decided a failure to train claim arising under 42 U.S.C. § 1983. We look to federal decisions for guidance.

Plaintiffs do not allege there were prior incidents of this kind, nor are there any factual allegations showing that the board or school officials demonstrated a deliberate indifference that was likely to lead to a contracted bus driver’s sexual abuse of a student. Plaintiffs further fail to identify any specific deficiency in training that led to a violation of Lauren’s constitutional rights.

Plaintiffs’ allegations of mere negligence with regard to training are insufficient to state a claim for municipal liability.

Plaintiffs’ claim of a failure to supervise also fails. No school employee is alleged to have committed acts upon Lauren that violated her substantive due process rights to bodily integrity and to be free from sexual abuse.

All factual allegations in the complaint regarding the board’s alleged supervisory liability consist of contentions that it failed to ensure YVEDDI properly trained and supervised its employees. Such allegations simply do not support a plausible conclusion that the board had actual or constructive knowledge that the bus driver was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to Lauren.

Negligence

Where a student is a member of a vulnerable population, particularly one who possesses an IQ far below the average for her age, the state owes a duty of care relative to the victim’s maturity.

However, in general, “one who employs an independent contractor is not liable for the independent contractor’s negligence unless the employer retains the right to control the manner in which the contractor performs his work.” Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). The only exception to this rule is certain non-delegable duties, such as work involving ultra-hazardous or inherently dangerous activity.

Here, the board delegated its duty to safely transport public

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school students pursuant to G.S. § 115C-253, which provides, “Any local board of education may ... enter into a contract with any person, firm or corporation for the transportation ... of pupils enrolled in the public schools.”

There is no evidence in the record to suggest the board retained the right to control the manner in which YVEDDI would transport students such as Lauren. YVEDDI hired and controlled the drivers, owned its own vehicles, determined its routes, and set its own policies.

The board researched and reviewed YVEDDI’s reputation, safety plans, and, after contracting, provided names and addresses of students to be transported, along with bell times. Therefore, the board did not exercise the degree of control over YVEDDI necessary to convert YVEDDI from an independent contractor to an employee.

Nor is there any evidence to suggest that transporting students is an ultra-hazardous or inherently dangerous activity. Moreover, the statute authorizing school districts to contract for student transportation expressly indicates that this is a delegable duty.

While we agree that the board should exercise the utmost standard of care while making decisions regarding its students, under our current law, the board could properly delegate any duty owed to Lauren to an independent contractor such as YVEDDI. Although no North Carolina court has considered whether the duty to transport students safely is delegable on these facts, other jurisdictions’ decisions are in accord with our ruling here.

Absent guidance from our Supreme Court or our legislature, we must hold the board was not an insurer of student safety but delegated any duty it owed to Lauren pursuant to the statutory authority found in § 115C-253.

We note that there is no genuine dispute as to the foreseeability of Lauren’s injury. It is undisputed that Lauren’s intellectual disabilities and medial fragility render her highly susceptible to exploitation and harm without proper monitoring and support. Because the board’s customary practice had been to provide transportation for Lauren on an exceptional students school bus staffed with a safety monitor, we emphasize that Lauren’s injury was one that could have been prevented.

Affirmed.

Concurrence

(Dietz, J.): I write separately because (1) I do not agree that Lauren’s injury was “certainly” foreseeable since criminal acts are not foreseeable under tort law principles and (2) the duty of care owed to Lauren is the same whether her transportation is provided by the school itself or by a contractor.

Here, the duty to provide that level of protection passed to YVEDDI under the independent contractor rule.

Concurrence

(Arrowood, J.): I write separately to express my concerns that the statute authorizing delegation of the duty to transport public school students has effectively permitted school boards to contract out of the heightened standard of care that this court has previously held them to.

Osborne v. Yadkin Valley Economic Development District, Inc. (Lawyers Weekly No. 011-168-21, 33 pp.) (April Wood, J.) (Richard Dietz & John Arrowood, JJ., concurring separately) Appealed from Stokes County Superior Court (Stanley Allen & Eric Morgan, JJ.) 2021-NCCOA-454

Tort/Negligence Road Maintenance – Black Ice – Filled Ditch – Constructive Notice Plaintiffs presented more than a scintilla of evidence that the thirdparty defendant North Carolina Department of Transportation had constructive notice that its roadside ditch was filled with debris, allowing runoff to move onto the road and freeze, leading to the accident which injured plaintiffs; accordingly, the trial court properly denied NCDOT’s motions for directed verdict and judgment notwithstanding the verdict.

We affirm the trial court’s denial of NCDOTs motions.

Plaintiffs were injured when their vehicle was struck by an oncoming car that hit black ice and spun out of control. There had been no precipitation that day.

An investigation revealed that the pipes of a well had burst, resulting in water running downhill into a roadside ditch. A section of the ditch had become filled with dirt and debris, such that this spot was flat with the surrounding land.

Instead of running freely through the ditch and avoiding the road, the water ran downhill into the ditch, reached the filled-in spot, and was pushed out onto the road, where it froze and formed the black ice that caused the accident in question.

NCDOT contends it did not breach its duty of care under a theory of constructive notice because it exercised proper diligence and there was no evidence of how long the condition existed. We disagree. There was circumstantial evidence, viewed in the light most favorable to plaintiffs, from which the jury could infer the ditch had been filled in for enough time that the condition would have been discovered had NCDOT exercised due diligence.

According to NCDOT’s internal guidelines, maintenance was required when ditches became 50 percent filled in to ensure they could effectively collect and disperse surface water. Further, the purpose and policy of NCDOT was to prioritize safety. As a result, these guidelines were effectively safety guidelines for the roads of North Carolina, and violation of these guidelines constituted some evidence of breach of duty.

Plaintiffs presented more than a scintilla of evidence of a violation of these guidelines, and therefore some evidence of breach, as there were multiple witnesses who testified to seeing the ditch completely filled in shortly after the accident.

There was also circumstantial evidence from which the finder of fact could infer the dangerous condition existed for some time, satisfying constructive notice. In the light most favorable to plaintiffs, this evidence shows the ditch took longer than a year to completely fill in, and it would have been at least halfway filled in for at least six months.

Read together with NCDOT’s

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guidelines requiring it to note any ditch more than 50 percent filled in for maintenance, and viewed in the light most favorable to plaintiffs, this evidence shows the ditch was in violation of NCDOT guidelines for at least six months. This sixmonth frame was sufficient to satisfy plaintiffs’ burden on a motion for directed verdict and was properly submitted to the jury.

Additionally, the evidence, viewed in the light most favorable to plaintiffs, showed NCDOT had at least six months to discover the ditch filling-in beyond 50 percent, which was conspicuous at the time it was completely filled in, through its employees or contractors mowing the area, its employees inspecting roads in the county, and its employees driving the county outside of work, all of whom had a duty or expectation to report such a problem according to their supervisor.

The alleged failure to discover the deficiency in this ditch over the course of those six months constitutes more than a scintilla of evidence NCDOT did not exercise due diligence.

Altogether, there was more than a scintilla of evidence NCDOT breached its duty by failing to maintain the completely filled ditch, which had been at least half filled, in violation of NCDOT guidelines, for at least six months, and, had NCDOT exercised due diligence, it would have discovered the clearly visible deficient ditch through its review of Highway 56 and the surrounding areas.

Affirmed.

Hicks v. KMD Investment Solutions, LLC (Lawyers Weekly No. 011-011-21, 15 pp.) (Hunter Murphy, J.) Appealed from Halifax County Superior Court (Cy Grant, J.) Sanford Thompson, Robert Perry and Alexander Perry for plaintiffs; Alexander Walton for third-party defendant. 2021-NCCOA-39

Tort/Negligence Damages – Collateral Source Rule – First Impression – Construction Project – Retaining Wall A subcontractor hired to build a retaining wall was unable to do so properly, and he independently hired a new subcontractor (plaintiff) to build the wall. Where plaintiff’s own negligent work caused damage to the construction site, plaintiff was not entitled to a reduction in the judgment against it based on payments that the original subcontractor made to the defendant-general contractor for costs attributable to the repair of the wall.

We affirm the trial court’s application of the collateral source rule to deny plaintiff a credit based on the original contractor’s payments to the general contractor.

Facts

The defendant-general contractor was hired to build a home in Haywood County. Defendant hired subcontractor Ariel Mendoza to build a retaining wall.

Mendoza’s wall collapsed twice

during construction. To remove his damaged work and to erect the wall anew, Mendoza contracted with plaintiff. Plaintiff did not have a contract with defendant.

Plaintiff’s attempt to build the retaining wall also failed, and defendant ordered plaintiff to stop work and to remove its equipment and employees from the site.

Defendant hired another subcontractor to raze the existing construction and to rebuild the wall, at a cost of $106,000. Mendoza paid defendant $105,000 for costs attributable to the repair of the wall.

Plaintiff sued defendant in quantum meruit, and defendant counterclaimed, alleging plaintiff’s negligence had damaged defendant. The jury awarded plaintiff $5,000, but the jury also found that defendant had been damaged by plaintiff’s negligence and awarded defendant $41,678.

Plaintiff contended it was entitled to a credit based on Mendoza’s payments to defendant. The trial court rejected plaintiff’s contention, based on the collateral source rule.

Analysis

Whether the collateral source rule applies to payments made by a source independent of the negligent actor to an injured party in the context of a construction dispute appears to be an issue of first impression in North Carolina.

The collateral source rule provides that a tortfeasor should not be permitted to reduce his own liability for damages by the amount of compensation the injured par-

ty receives from an independent source. The collateral source rule is punitive in nature, and is intended to prevent the tortfeasor from a windfall when a portion of plaintiff’s damages have been paid by a collateral source. The defining characteristic of a collateral source is its independence from the tortfeasor.

The collateral source rule is an exception to the general commonlaw principle that there should be only one recovery for one injury.

After his own attempt to build the retaining wall failed, Mendoza hired plaintiff to re-erect it; defendant was not a party to the contract between Mendoza and plaintiff. Other than contracting with plaintiff, Mendoza had no further involvement with the reconstruction of the wall. Mendoza was not plaintiff’s agent or employee.

Mendoza’s payments to defendant for his failure to fulfill his obligations were entirely independent of plaintiff’s negligence and do not relieve plaintiff from its own distinct liability to defendant for damage caused at the site. Because plaintiff was an independent subcontractor, Mendoza had no obligation beyond his own contractual duties to defendant to rectify damages caused by plaintiff’s negligence. Mendoza’s payments to defendant thus constitute payments made from a collateral source.

Plaintiff’s work on the retaining wall was entirely separate from Mendoza’s work, causing injury and delay distinct from Mendoza’s own deficient work and failure to

18 / MOST OPINION IMPORTANT DIGESTS OPINIONS perform under its agreement with defendant.

Plaintiff bemoans that defendant will recover doubly for the same injury. To the extent Mendoza’s payments and the damages awarded against plaintiff overlap, in this situation, the injured party—defendant—not the tortfeasor—plaintiff—should reap any such windfall.

Affirmed.

Caroline-A-Contracting, LLC v. J. Scott Campbell Construction Co. (Lawyers Weekly No. 011-019-21, 13 pp.) (Lucy Inman, J.) Appealed from Haywood County Superior Court (Bradley Letts, J.) John Spainhour and Lucienne Peoples for plaintiff; Allan Tarleton and Martini Moore for defendant.

2021-NCCOA-62

Tort/Negligence Medical Malpractice – Rule 9(j) – Expert Witnesses – Medical Records – Civil Practice – Cross-Appeals & Amended Pleadings Although the plaintiff-widow was present for some of her decedent’s relevant medical treatment and kept handwritten notes, the court applies the definition of “medical records” from the North Carolina Medico-Legal Guidelines and holds that plaintiff’s handwritten notes were not “medical records” that were required to be reviewed by her expert under N.C. R. Civ. P. 9(j).

We deny plaintiff’s motions to dismiss defendants’ cross-appeals.

We affirm the trial court’s denial of defendants’ motions to dismiss. We affirm the trial court’s exclusion of expert witness Dr. Leyrer with respect to the defendant-hospital but otherwise reverse the trial court’s exclusion of plaintiff’s expert witnesses.

We vacate the trial court’s grant of summary judgment for defendants.

Cross-Appeals

Defendants could not appeal the trial court’s denial of their original motions to dismiss because these motions were interlocutory. Moreover, the trial court dismissed plaintiff’s claim against defendants in its summary judgment orders. Thus, defendants had no reason to file appeals from the judgments as they won in the court below. Defendants’ crossappeals were not time-barred and are properly before this court.

In defendant Rana’s original answer to plaintiff’s previously dismissed and then re-filed complaint, he raised the issue of plaintiff’s failure to pay the costs of the dismissed action, but he did not raise personal jurisdiction, process or service of process defenses. Rana’s original answer invoked the trial court’s jurisdiction and waived his personal jurisdiction defense.

Furthermore, under N.C. R. Civ. P. 15, only claims and not defenses relate back to the filing of the original pleading. Moreover, Rana’s original answer did not allege facts putting plaintiff on notice that he would raise personal jurisdiction, process and service of process defenses. The defenses raised for the first time in Rana’s amended answer do not relate back.

Accordingly, the trial court did not err in concluding Rana waived his process, service of process, and personal jurisdiction defenses.

As to the merits of defendants’ cross-appeals, plaintiff reasonably

expected Dr. Leyrer to qualify as an expert against the hospital as he was a practicing emergency physician at the time plaintiff filed her complaint.

Plaintiff could have reasonably believed he would be able to testify as an expert as to the hospital’s emergency room nurses’ standard of care.

Moreover, because both Leyrer and Rana were emergency physicians, plaintiff could have reasonably expected Leyrer to qualify as an expert against Rana and against the hospital if Rana was the hospital’s agent.

It is true that, well after plaintiff filed her complaint, Leyrer stated he did not actually have any opinions as to whether the hospital breached the standard of care. Moreover, Leyrer stated he was not an expert in emergency nursing care. However, the record contains nothing to suggest Leyrer made any of these reservations known to plaintiff before she filed either of her complaints.

Since Leyrer was a practicing emergency physician at the time plaintiff filed the complaint, the trial court correctly concluded plaintiff exercised reasonable diligence in assuring her Rule 9(j) certification was true and she reasonably believed Leyrer would qualify as an expert and testify as a witness against the hospital. Accordingly, the trial court did not err in denying the original motion to dismiss.

Subsequent Motions

One of the reasons the trial court granted defendants’ subsequent motions to dismiss was that Leyrer had not reviewed all relevant medical records, specifically, plaintiff’s handwritten notes about her husband’s medical care, EMT records, and records concerning the decedent’s past medical care.

There does not appear to be a clear definition of what constitutes “medical records” contemplated under Rule 9(j). In the absence of that clear definition, the North Carolina MedicoLegal Guidelines provide a commonsense definition: “Medical records are a collection of Health Information and the Designated Record Set for a particular individual whether created by a physician or other health care provider, as well as received from a physician or other health care provider.” North Carolina Bar Association, Medico-Legal Guidelines, Guideline II (2014).

Plaintiff’s personal handwritten notes—while certainly potentially relevant information—do not constitute medical records because they were not created by a physician or other health care provider or from information provided by a physician or other health care provider.

Where there is a factual dispute over whether a medical malpractice expert reviewed the pertinent medical records related to an alleged medical malpractice claim, at this early stage in the case, the trial court and this court, must view the evidence in the light most favorable to the plaintiff.

There are factual disputes over (1) whether Leyrer reviewed EMT records, (2) whether decedent’s prior medical records were pertinent to the medical care he received from defendants on 8 and 9 March 2010; and (3) whether and why Leyrer’s opinions would or would not change based on his review and interpretation of those records. Drawing all inferences and viewing the evidence in the light most favorable to plaintiff, the trial court erred in granting Rana’s Rule

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9(j) motion to dismiss on this basis.

Where Leyrer reviewed demographic data for Dunn that included the relevant timeframe, it was not unreasonable for plaintiff to expect Leyrer would supplement any purported deficiency in his familiarity with the Dunn community or applicable standard of care. As to Rana, the trial court erred in excluding Leyrer as an expert witness because he did not review sufficient data about the Dunn community, the hospital, and Rana at the time of the alleged negligence.

However, as it relates to the hospital, the trial court’s exclusion of Leyrer also rests on Leyrer’s testimony that he was not an emergency nursing expert and that he had no criticisms or opinions as to the hospital or its staff. Plaintiff does not contest this aspect of the trial court’s order excluding Leyrer. Thus, we affirm this aspect of Leyrer’s exclusion.

As to plaintiff’s second expert, Dr. Harris, the record does not support the trial court’s conclusion that Harris failed to satisfy G.S. § 9021.12(a)’s requirement he be familiar with the standard of care in Dunn or a similar community. Likewise, the record fails to support the trial court’s determination that Harris, a practicing emergency room physician who devoted the majority of his practice to emergency room care in the previous year, failed to satisfy N.C. R. Evid. 702(b). To the contrary, Harris examined the medical records from the hospital for the two hospital visits in question as well as at least some of decedent’s prior medical records relevant to his care on the days in question. Therefore, the trial court misapplied Rule 702(a) by concluding Harris’s opinions were not based on sufficient data.

Because we reverse the trial court’s orders excluding Harris’s testimony against Rana and the hospital and Leyrer’s testimony against Rana, we also vacate the trial court’s summary judgment order.

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

Miller v. Carolina Coast Emergency Physicians, LLC (Lawyers Weekly No. 011-078-21, 47 pp.) (Toby Hampson, J.) Appealed from Harnett County Superior Court (Claire Hill, Stanley Allen & Gale Adams, JJ.) Brenton Adams and Patricia Shields for plaintiff; Louis Foy, Alicia Johnson, Maria Wood and Kristina Wilson for defendant. 2021-NCCOA-212

Tort/Negligence Car-Bicycle Collision – Jury Instructions – ‘Pedestrian’ – ‘Highway’ The defendant-driver’s vehicle struck the plaintiff-bicyclist in a crosswalk. Since plaintiff was bicycling and not walking, the trial court correctly declined to give plaintiff’s proposed jury instruction that “when a lawful crosswalk user is crossing a roadway within a marked crosswalk, the operator of any vehicle must yield the right of way to the lawful crosswalk user.”

We affirm judgment for defendant.

G.S. §§ 20-155 and 20-173 require the drivers of vehicles to yield the right of way to a “pedestrian” within a crosswalk. Though these statutes do not define “pedestrian,” the term’s ordinary meaning has long been understood to be a person traveling on foot, not a person bicycling. In addition, G.S. § 20-4.01 defines a bicycle

as a vehicle. Plaintiff’s proposed jury instruction was not a correct statement of the law.

Plaintiff also asked the trial court to define “highway” as “the entire width between property or rightof-way lines of every way or place of whatever nature, when any part thereof is open to the use of the public as a matter of right for the purposes of vehicular traffic” and that “a sidewalk is a part of the highway.”

However, the evidence did not support such an instruction.

A sidewalk is not categorically part of the highway, but a sidewalk that falls within the boundaries of the property or right-of-way lines described in § 20-4.01(13) would be a part of the highway. Our Supreme Court has held that the portion of sidewalk which drivers cross to access a parking lot open to public vehicular traffic is considered a part of the “highway” under the definition now codified in § 20-4.01(13). State v. Perry, 230 N.C. 361, 53 S.E.2d 288 (1949).

There is no evidence in the record that the sidewalk at issue was “between property or right-of-way lines of” the property upon which Jetton Road was located. Nor was there evidence that the sidewalk at issue was crossed by drivers to access a parking lot open to the public for vehicular traffic.

While the evidence shows that the crosswalk is within the “roadway” of Meta Road and is therefore a part of the “highway,” plaintiff requested that the jury be instructed more broadly that “a sidewalk is a part of the highway.” Plaintiff has therefore failed to demonstrate that his alternative proposed instruction was supported by the evidence, and the trial court did not err by declining to give the instruction.

When plaintiff introduced a portion of defendant’s deposition testimony at trial, since other portions of defendant’s deposition testimony further explained (1) defendant’s familiarity with the neighborhood, (2) what defendant did at the time of the collision, and (3) what defendant saw and what conditions were like at the time of the collision, the trial court did not abuse its discretion when it required the other parts of defendant’s deposition to be read into evidence.

Affirmed.

Barrow v. Sargent (Lawyers Weekly No. 011-104-21, 19 pp.) (Allegra Collins, J.) Appealed from Mecklenburg County Superior Court (Martin McGee, J.) Ann Groninger and Helen Baddour for plaintiff; William Robinson and Dorothy Gooding for defendant. 2021-NCCOA-295

Tort/Negligence Wrongful Death – State Employees – Individual Capacity – Sovereign Immunity – Proximate Cause – Punitive Damages Where the plaintiff-widow is suing her late husband’s NCSU co-workers for negligence and gross negligence that led to the death of her husband, the co-workers are not entitled to sovereign immunity.

We affirm the Court of Appeals’ reversal of the trial court’s dismissal of the complaint.

According to the complaint, when fulfilling a work order to drain an outdoor chiller at North Carolina State University (NCSU), the decedent’s co-workers failed to refill the

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chiller with antifreeze, as directed by warnings posted on the chiller.

Water in the chiller’s pipes froze and ruptured the pipes, which caused the pipes to fill with a pressurized refrigerant gas. The gas built up in the pipes behind metal flanges.

So that the chiller could be reconnected, plaintiff’s decedent tried to loosen the flanges. As he began doing so, one of the flanges flew off the end of the pipe, propelled by the pressurized refrigerant gas, and struck him in the face. The flange knocked off part of the decedent’s skull, and he died five days later.

Plaintiff filed suit in superior court against her decedent’s co-workers in their individual capacities.

Sovereign Immunity

A suit against state employees is not subject to the doctrine of sovereign immunity when brought against the employees in their individual capacities. Defendants are not entitled to the defense of sovereign immunity merely because they are state employees, even when the tortious conduct is alleged to have occurred during the scope of their employment.

Whether a complaint’s allegations relate to actions outside the scope of defendant’s official duties is not relevant in determining whether the defendant is being sued in his or her official or individual capacity. To hold otherwise would contradict our cases that have said that public employees may be held individually liable for mere negligence in the performance of their duties.

Plaintiff has also sued NCSU in the Industrial Commission. However, a plaintiff may maintain both a suit against a state agency in the Industrial Commission under the Tort Claims Act and a suit against the negligent agent or employee in the General Court of Justice for common-law negligence.

Proximate Cause

There is nothing surprising about the fact that water left in pipes that are subjected to freezing temperatures may freeze and cause the pipes to burst. Even though a work order instructed defendants only to “drain”

C o nt inu e d f r o m 5 ►

panel declared there was evidence that GOP legislators created extreme partisan gerrymanders when drawing U.S. House districts in 2016 and legislative districts in 2017. The legislature redrew the maps in time for the 2020 elections. But the panel’s declarations were never affirmed on appeal.

Democratic Gov. Roy Cooper, whose veto stamp can’t be used on redistricting maps, had urged in a friend-of-the-court brief for the Supreme Court to intervene.

Wednesday’s order “restores faith in the rule of law,” Cooper said in a statement.

Bishop sues for NC judges to share 2022 election delay votes ■ BY BRYAN ANDERSON ASSOCIATED PRESS/REPORT FOR AMERICA RALEIGH (AP) — A North Carolina congressman has filed a federal lawsuit to demand more transparency from state Supreme Court and Court of Appeals judges whose votes

the chiller, a notice on the chiller informed defendants that the chiller could not be completely drained, so it had to be drained and refilled with antifreeze. Therefore, defendants were on notice that a necessary part of their task was to refill the chiller with antifreeze.

The work order did not need to set out every step required to execute the task properly and safely.

The complaint adequately alleged that defendants either knew or should have known that their conduct would cause damage to the chiller that might leave it in a dangerous state, that defendants in fact caused the damage through their actions, and that injury in fact resulted. This was sufficient to plead the substantive elements of a legally recognized claim.

MOST IMPORTANT OPINIONOPINIONS DIGESTS / 19 requirements necessary for punitive damages in this state.

Estate of Long v. Fowler (Lawyers Weekly No. 010-086-21, 45 pp.)

(Anita Earls, J.) (Philip Berger, J., joined by Paul Newby, C.J. & Tamara Barringer, J., dissenting) Appealed from the Superior Court in Person County (Josephine Davis, J.) On appeal from the Court of Appeals. John Paul Godwin and Sanford Thompson for plaintiff; Jonathan Hall, Patrick Meacham, Melissa Walker, Shannon Cassell and Sarah Boyce for defendants.

2021-NCSC-81

(Berger, J.): Because the complaint indicates that plaintiff is suing defendants in their official capacities—the only capacity in which they performed their task— the Industrial Commission has exclusive jurisdiction over this case.

Furthermore, the majority’s holding constitutes a drastic departure from our requirements to plead facts sufficient to establish both proximate cause and willful or wanton conduct.

Therefore, I respectfully dissent.

G.S. § 143-291(a) makes it clear that the Industrial Commission, not a plaintiff, is vested with the power to determine whether the negligence of employees of the state occurred during the course and scope of their employment. Furthermore, because the state can only act through officers and employees, the distinction between official capacity and individual capacity conflicts with the concept of waiver of the state’s sovereign immunity.

Where the complaint alleges that defendants were employed

by NCSU, defendants were fulfilling an NCSU work order, and the work order did not mention refilling the chiller with antifreeze, the substance of plaintiff’s allegations show that the alleged negligence arose from defendants carrying out a work order directed by NCSU. It is readily apparent that plaintiff was suing defendants in their official capacities for the work performed pursuant to the work order. Thus, the allegations in the complaint, along with the course of proceedings in the present case (such as plaintiff’s largely duplicative complaint in the Industrial Commission), indicate that this case is really an officialcapacity claim couched under the heading of an individual capacity suit.

Plaintiff has also failed to allege facts that would support a finding of proximate cause. Nothing in the work order or on the chiller’s labels mentioned that failing to refill the chiller with antifreeze would create a possibility of a pressurized buildup that could cause injury. In fact, the only warning mentioned on the labels was that failure to fill the chiller with antifreeze could cause “damage to the cooler tubes.” It was not reasonably foreseeable that, in the face of the instructions on the work order and the labels on the chiller, defendants’ actions would cause injury to plaintiff’s decedent.

Lastly, the majority’s holding that plaintiff adequately alleged willful or wanton conduct to bring a claim for punitive damages constitutes a dangerous reduction of the pleading

this month prompted the state to push back its 2022 primary by 10 weeks.

The complaint U.S. Rep. Dan Bishop, a Charlotte-area Republican, announced Wednesday night and filed earlier in the day criticizes a string of private court decisions, arguing three private votes run counter to “a well-established tradition of public access to the votes of individual justices and judges in the decisions of these courts.”

“It’s breathtaking hypocrisy: judges require legislators to draw maps, debate maps, and vote on new maps in public,” Bishop said in a news release. “But they rule on them in the deepest, darkest recesses of the court system. No matter which side of the issue you’re on, every North Carolinian has a right to this information and everyone should demand transparency from our judges. There are no grounds whatsoever for our courts to operate in secret.”

On Dec. 6, a three-judge appeals court panel voted minutes before candidate filing was set to begin to suspend filing for U.S. House and North Carolina General Assembly races. The court told state and local elections officials not to begin ac-

cepting candidates for those seats, prompting the state Board of Elections to turn away from the State Fairground in Raleigh several candidates for office, including U.S. Rep. Alma Adams, a Democrat who traveled from Charlotte to file her paperwork.

But later that night, “a vote of the majority of judges” on the 15-person Court of Appeals reversed the panel’s decision and allowed candidate filing to resume.

In both decisions, the judges used a lesser-known “conference” process where they are free to discuss the issues at hand privately and then announce a ruling publicly without providing a tally of how the vote went or which judge voted in which direction.

On Dec. 8, the state Supreme Court suspended candidate filing and ordered the 2022 primary election to be delayed by 10 weeks from March 8 to May 17 as lower courts examined whether the GOP-drawn legislative and congressional maps were unlawfully drawn for pure partisan gain and to dilute the voting power of racial minorities.

Bishop believes Democrats and Republicans alike should demand transparency for all three decisions

and said he is particularly interested to know the vote of Jimmy Ervin, a Democratic justice on the state Supreme Court who filed for office before possibly voting shortly thereafter to halt candidate filing.

The high court’s order did not disclose how each of the seven justices voted. The signature written on the decision was illegible and appeared over the words “For the Court.”

In his lawsuit, Bishop notes that Amy Funderburk, clerk of the state Supreme Court, told him by email that Justice Tamara Barringer, a registered Republican, signed the order postponing the election. Bishop claims that neither Barringer nor any other Supreme Court worker responded to his request for a breakdown of how the seven justices voted.

Bishop, who accuses the high court and Court of Appeals of depriving him of his First Amendment rights, is also asking the courts to pay his attorneys’ fees for this case.

“The First Amendment-protected interest will retain no significant value unless the deprivation of access is remedied almost immediately and in any event well prior to the general election 2022,” Bishop wrote in the suit.

Punitive Damages

As to each defendant, the complaint alleges that the defendant, either knowingly or with reckless disregard of the consequences of his actions, left the chiller in such a condition that it was likely to seriously injure the next person who came along to work on it. Moreover, the complaint alleges that each defendant’s actions “demonstrated a conscious or intentional disregard or indifference to the rights and safety of others, including Joe Long, which [that defendant] knew, or should have known, would be reasonably likely to result in injury or death and as such constituted willful or wanton conduct.” These allegations were sufficient to support claims for punitive damages.

Affirmed.

Dissent

Trusts & Estates Amendment – Power of Appointment – Civil Practice – Collateral Estoppel – Attorneys – Tort/Negligence – Legal Malpractice In this legal malpractice action, the defendant-attorney and law firm contend that collateral estoppel bars the plaintiff-trustee and executor from re-litigating the issue of a testatrix’s intent with respect to the exercise of a power of appointment granted to her in her predeceased husband’s trust. However, in the underlying declaratory judgment action, the trial court’s order could have been based on considerations that made the testatrix’s intent to exercise her power of appointment irrelevant. Consequently, defendants cannot show that the testatrix’s intent was material to, and therefore actually and necessarily determined in the underlying declaratory judgment action.

We affirm the trial court’s denial of defendants’ motion for summary judgment as to the defense of collateral estoppel.

Wells Fargo Bank, N.A. v.

Orsbon & Fenninger, LLP (Lawyers Weekly No. 011-124-21, 21 pp.) (Allegra Collins, J.) Appealed from Mecklenburg County Superior Court (Donnie Hoover, J.) Richmond McPherson and Anne Doherty for plaintiffs; Gary Parsons and Kimberly Marston for defendants.

2021-NCCOA-315

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