NCLAWYERSWEEKLY.COM Part of the
VOLUME 34 NUMBER 5 ■
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FEBRUARY 28, 2022 ■ $8.50
AG’s deal over hog farm fines blessed again ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires
Since 2020, Brown has incorporated information on calendar fraud into cybersecurity presentations and continuing legal education, though he admits that it may only be one small part of a comprehensive discussion cover-
An appeals court erred when it allowed a party to amend its complaint to assert violations of a law that wasn’t in existence when the initial complaint was filed, the North Carolina Supreme Court has unanimously ruled, reversing a divided appellate panel decision in a case involving payments to the state. In 2000, then-Attorney General Michael F. Easley entered into an agreement with Smithfield Foods, the state’s largest hog farming operation, to undertake immediate measures for enhanced environmental protection and commit $50 million to environmental enhancement activities. The state established the Environmental Enhancement Grants Program, which awarded millions to various organizations using the money from Smithfield for many years. In 2016, Francis X. De Luca filed a complaint alleging that the Smithfield payments constituted penalties for purposes of article IX, section 7 of the North Carolina Constitution, which requires that the “proceeds of all penalties and forfeitures and of all fines collect-
See Phishing Page 6 ►
S e e Pe n a l t i e s P a g e 6 ►
Hackers are finding a new weak point in calendar invites ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com When COVID-19 struck, calendar software and videoconferencing became a viable, popular means of doing business. Unfortunately, cybercriminals got the memo and have begun pursuing a new and particularly dangerous line of attack. In recent years, internet bad guys have increasingly targeted law firms and their valuable corporate and customer data, looking to profit by weaseling into networks and injecting themselves into others’ financial affairs. Email attacks have long been the hacker’s preferred modus ope-
randi, and remain so even today. But most people have become rightly more suspicious of emails, so today’s hackers, like the savvy businesspeople they are, are casting wider nets and chasing multiple revenue opportunities. Calendar fraud attacks started appearing a few years ago, but particularly since the pandemic started, these efforts to infiltrate platforms such as Zoom, Microsoft Teams, WebEx, and Google Calendar are wreaking havoc on unwitting victims. “We’re on these [videoconferences] a lot more than we used to be, and if something’s on our calendar, we just kind of trust that we put it there or that someone in
our office or someone else who had access put it there,” said Patrick Brown, vice president of Enterprise and Operational Risk Management at Lawyers Mutual of North Carolina. Unfortunately, that may not always be the case.
You don’t want to be in the room where this happens
Therapeutic use limited time for med-mal suit ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires A surgeon’s decision to leave a fabric barrier in a patient’s body permanently had a therapeutic purpose at the time the barrier was implanted, and so a subsequent lawsuit couldn’t benefit from the longer statute of limitations for medical malpractice cases involving foreign objects left in the body, the North Carolina Court of Appeals has ruled. Dr. Mehmet Tamer Yalcinkaya performed surgery on Kimberly D. Bryant to remove non-cancerous growths on her uterus in 2007. During the procedure, Yalcinkaya implanted a breathable fabric
membrane—which the court referred to by its trade name, Gore-Tex, a substance also commonly used to waterproof jackets—to prevent adhesions forming at the surgical incision site, and used sutures to keep it in place permanently. Yalcinkaya documented the use of the barrier, listing it under the “Implants” section of the file with the serial number, lot number and model number. Although he noted that Bryant’s prognosis regarding fertility required continuing post-operative treatment, she discontinued her treatment. Ten years later, during surgery for treatment of a large pelvic mass, the barrier was removed. Bryant sued Yalcinkaya and his employers, al-
leging that the Gore-Tex barrier caused her infertility. Her standard of care expert testified that barriers “can” have a therapeutic purpose if they are properly used, but that it was improperly used in Bryant’s case. Forsyth County Superior Court Judge Eric C. Morgan granted summary judgment in favor of the defendants, and Bryant appealed. She argued that a genuine issue of material fact existed regarding whether the Gore-Tex barrier had a therapeutic purpose or effect at the time it was implanted, which would extend the time period for her lawsuit. See Med-Mal Page 7 ►
INSIDE VERDICTS & SETTLEMENTS
VERDICTS & SETTLEMENTS
COMMENTARY
Overdose death in custody leads to $1.8M settlement
Estate of hit-and-run victim settles for $1M
Early intervention in litigation
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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 Fe br u ar y 28, 2022
LAWYERS IN THE NEWS Michele M. Glessner has joined Moore & Van Allen as a member of the firm’s intellectual property group in its Charlotte office. Glessner counsels clients on complex trademark, patent, copyright, and other intellectual property issues. She was previously a partner at Alston & Bird. Colby Jenkins has joined Alston & Bird as a partner in the firm’s Charlotte office. Jenkins advises clients on structuring, documenting, and operating U.S. and offshore investment funds. He comes to the firm from Moore & Van Allen, where he led the firm’s investment management practice. Daniel Watts has joined Conner Gwyn Schenck as an associate in the firm’s Raleigh office. Watts’ practice focuses on litigation and arbitration of construction claims and disputes. He was previously an assistant dis-
trict attorney in the Wake County District Attorney’s Office. Maryam Al-Zoubi has joined Gardner Gordon Immigration Law in Raleigh as an associate. Her practice focuses on all areas of immigration law. Parker Poe announced that Shalanna Pirtle in its Charlotte office has been named as the firm’s new Chief Talent, Diversity & Inclusion Officer. It is the firm’s first C-suite role overseeing all aspects of talent management, diversity, equity, and inclusion. Pirtle is currently a partner at the firm. Smith Anderson in Raleigh announced that it has named Alex Bowling, James Jolley, and Darrell Fruth partners in the firm. Bowling and Jolley are part of the firm’s corporate team; Fruth is a member of its intellectual property group.
NEWS BRIEFS
Walter Dellinger, influential scholar and lawyer, dies at 80 DURHAM (AP) — Walter E. Dellinger, a constitutional scholar who argued numerous cases before the Supreme Court, served in top positions in the Justice Department and taught for decades at Duke University, has died. He was 80. Dellinger died on the morning of Feb. 16 in Chapel Hill, his son Hampton Dellinger said. During the administration of former President Bill Clinton, Dellinger headed up the influential Office of Legal Counsel that advises the attorney general on often sensitive legal and policy issues and served as the acting solicitor general, the administration’s top Supreme Court lawyer. While serving as acting solicitor general during the 1996-97 term of the high court, he personally argued nine cases, more than any of his predecessors in two decades at the time. Dellinger was an emeritus professor at the Duke University School of Law, where he had been a faculty member since 1969. After his passing, he was remembered for his friendship and guidance from Duke’s campus to the Supreme Court itself. “Walter was a great mentor and friend to me. He gave the best advice when I became Solicitor General, sharing everything he knew about the job,” Justice Elena Kagan, who served as solicitor general during the Obama administration, said in a statement. “He was generous and kind, and he made everyone he dealt with feel ten feet tall. He was a phenomenal lawyer with an endless string of accomplishments, but he always gave the credit to others.” Justice Stephen Breyer called Dellinger “a great lawyer and a valuable public servant.” “His positive contribution to law and to the rule of law in this country will be long remembered,” Breyer said in a statement. Dellinger remained an active commentator on legal, political and other news until just before his death. Ahead of the 2020 presidential election, Dellinger helped lead a legal team assembled by Democrats to take on election-related court cases. And in early February, Dellinger
spoke out in defense of Biden’s pledge to name a Black woman to the Supreme Court in an essay published by the New York Times. “There are approximately 25,000 Black female attorneys in America. There is every reason to believe that President Biden’s nomination process will benefit by focusing on that extraordinary group for the next justice of the United States Supreme Court,” Dellinger wrote. Walter Dellinger was born in Charlotte and attended the University of North Carolina and Yale Law School. Early in his career, Dellinger served as a law clerk to Supreme Court Justice Hugo Black. “Walter lived a wonderful and extraordinary life. He had many loves, first among them his wife Anne but also the State and University of North Carolina, the law and the rule of law, and American democracy,” said Hampton Dellinger, himself an assistant attorney general in the Biden administration’s Justice Department. As acting solicitor general, Walter Dellinger won five of the cases he argued himself, including when he defended the president’s line-item veto and two cases defending state laws outlawing physician-assisted suicide. He got a split decision in another, and lost three, including when the high court threw out a key part of the Brady gun control law and allowed the Paula Jones sexual harassment lawsuit to proceed against Clinton. “This is the best lawyer’s job in the world,” Dellinger said in a 1997 interview as he prepared to leave the role to return to Duke to teach. He said then that spending time with his family in North Carolina was a big part of his decision. Prior to that, while leading the Office of Legal Counsel, Dellinger issued opinions on the president’s authority to send U.S. troops to Haiti and Bosnia, as well as the president’s right to decline to enforce laws he believes are unconstitutional. Overall, Dellinger argued 24 cases at the high court, representing the government and also private clients before and after his time in the administration, according to legal information site oyez.org. Dellinger was a mentor and friend See Page 3 ►
BAR DISCIPLINE
ROUNDUP Attorney: Nikita V. Mackey Location: Charlotte (formerly of Kings Mountain) Bar membership: Member since 2003 Disciplinary action: Disbarred on Feb. 11 Background: In June 2020 Mackey pleaded guilty in Tennessee to the crimes of reckless endangerment, assault, and vandalism/malicious mischief. In December 2020 Mackey pleaded guilty in Caswell County to the crimes of injury to personal property and injury to real property. The two sets of charges stemmed from separate incidents in which Mackey fired gunshots into buildings and residences belonging to his former wife or her family. In June 2021 Mackey was convicted in Cabarrus County of uttering a false check and obtaining property by false pretenses after forging his former wife’s signature on a check issued to her and depositing it into his own bank account. Separately, in 2015 the state bar administratively suspended Mackey’s license to practice law. During this suspension, Mackey engaged in the unauthorized practice of law, accepted new legal fees from a client while his license was suspended, and made a false statement on his petition for reinstatement about whether he had practiced law while he was suspended. In another separate matter, Mackey fell asleep during a substantial portion of the criminal trial of a client he’d been appointed to represent, and his client’s conviction was overturned on appeal due to ineffective assistance of counsel. Previous discipline: Mackey was reprimanded in 2008 for neglecting a client’s matter and attempting to collect an excessive fee, admonished in 2008 for attempting to collect an illegal fee and threatening to expose an affair between a client and Mackey’s staff member to gain leverage in a fee dispute, reprimanded in 2009 for making a false statement about his marital status on a bankruptcy petition, and suspended for three years in 2010 for failing to disclose on his bar exam application that he had failed to timely file and pay certain state and federal income taxes and for failing to timely file state and federal income tax returns after being admitted to the bar. Attorney: H. Trade Elkins Location: Hendersonville Bar membership: Member since 2000 Disciplinary action: Disbarred on Feb. 3 Background: Elkins’ af f idavit of surrender of law license, and the order disbarring him, simply says that there is a pending complaint against him in the Disciplinar y Hearing Commission alleging that he violated the Rules of Professional Conduct. Elkins acknowledged that the material facts upon which the pending complaint is predicated are true, and that he could not successfully defend against them. Previous discipline: None Attorney: Joshua Michael Reed Location: High Point Bar membership: Member since 2016 Disciplinary action: Disbarred on Jan. 21 Background: Reed pleaded guilty to and was convicted of the federal felony offense of attempted coercion or enticement of a minor in U.S. District Court for the Western District of North Carolina. Reed surrendered his law
license voluntarily, acknowledging that the material facts upon which the case is predicated are true, and that he could not successfully defend against them. Previous discipline: Reed had been on indefinite suspension since Nov. 9, 2021. Attorney: Tiffany Dawn Russell Location: Durham Bar membership: Member since 2008 Disciplinary action: Disbarred on Jan. 21 Background: On Jan. 20, Russell pleaded guilty to and was convicted of the federal felony offenses conspiracy to commit mail, wire, and financial fraud and filing a false federal income tax return. According to a statement by the U.S. Department of Justice, Russell was originally indicted in November 2020 for conspiracy to commit bank fraud, bank fraud, access device fraud, and misuse of a social security number. According to the indic tment, Russell and her co-conspirators applied for loans and credit cards with Social Security numbers that were not issued to them by the Social Security Administration. By doing so, they created new credit profiles or synthetic identities for themselves to open financial accounts and make purchases from retailers without any intention of paying for the items and services obtained. Russell surrendered h e r l a w l i c e n s e v o l u n t a r i l y, acknowledging that the material facts upon which the case is predicated are true, and that she could not successfully defend against them. Previous discipline: Russell was censured by the Chief District Court Judge of Rowan County in 2014 after making an outburst in the courtroom. Attorney: Victoria Lynn Block Location: New Bern Bar membership: Member since 2003 Disciplinary action: Suspended from the practice of law for two years on Jan. 19. The suspension is stayed for two years so long as Block complies with certain conditions. Background: A random audit of Block’s trust account in 2015 showed deficiencies in her management of the account, including failure to conduct quarterly reconciliations, failure to identify clients on wire and electronic transfers for the trust account, bank charges for the trust account paid with trust funds and then reimbursed by office funds, failure to maintain a ledger of attorney funds to service the trust, failure to maintain records of monthly reconciliations for the account, failure to maintain wire and electronic transfer confirmations for the account, and failure to maintain funds in the trust account to cover credit card processing. Block had been the subject of a random audit in 2008, and that audit had showed similar deficiencies in management of entrusted funds. Previous discipline: Block was reprimanded in August 2014 for taking on a case that she did not have adequate experience to handle, failing to consult with a more experienced attorney, and failing to adequately communicate with the client. 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.
VERDICTS & SETTLEMENTS / 3
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 Feb ruary 28, 2022
Overdose death in custody leads to $1.8M settlement ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com The estate of a man who died after overdosing on methamphetamine while in the custody of the Cherokee County Sheriff’s Department has settled its lawsuit against the office for $1.8 million. Ellis Boyle of Knott & Boyle in Raleigh and Winslow Taylor of Taylor & Taylor in WinstonSalem, the attorneys for the estate of Joshua Long, said that the 31-year-old man died unnecessarily, and that the sheriff’s office has a longstanding practice and custom of violating its own written policy. “Although Detention Center policy required a medical observation form, a medical questionnaire form, an officer observation form, and a mental health screening form, neither Sgt. [Frank] Daly nor any other Defendant Detention Officer completed said documents,” the attorneys wrote in court documents. “Sgt. Daly never even took Mr. Long’s mug shot.” According to the complaint, Cherokee County deputies responding to a call for service found Long shirtless, yelling, and cursing before he swallowed an unknown substance. Long was arrested for marijuana possession and resisting an officer. Two deputies on the scene asked Long if the substance he swallowed was drugs, which Long denied. Long also declined medical attention. He was taken to the Cherokee County Detention Center at approximately 7 p.m., where he was given a $1,000 secured bond to help ensure that he wouldn’t leave jail before sobering up. The arresting deputy told detention officers
that Long had swallowed an unknown substance, according to court documents. Long’s attorneys said that tint on the windows of his holding cell made it difficult to see inside without peering from up close, and jail video showed officers completing several “insufficient” Ellis Boyle security rounds without looking into the cell. At 10:45, Long slipped a piece of paper under his cell door, though no one to this day knows what it said or can produce it. Shortly after Long passed the note, officers found him unconscious in his cell. They began CPR and told emergency Winslow dispatchers that Long might be “coming down from something.” Taylor Around midnight, officers realized that Long’s medical situation was dire. Long left the jail on a medical helicopter at around 12:40 a.m. and was pronounced dead at the University of Tennessee Medical Center. Long’s attorneys said that he should have been sent for a medical evaluation hours before his medical emergency manifested. “They ignored Mr. Long until he died in a cell just a few feet away from their booking desk,” his attorneys wrote in court documents. Although an Aug. 27, 2021 mediation failed to produce a resolution, the parties agreed to the settlement terms just over two weeks later. Boyle said that plaintiff’s attorneys appreciate the hard-fought efforts by the defense, but also
SETTLEMENT REPORT – CIVIL RIGHTS
Amount: $1.8 million Injuries alleged: Death Case name: Jason Blackwell on behalf of estate of Joshua Shane Long v. Sheriff Palmer, Cherokee County Sheriff Department, et al. Court: U.S. District Court for the Western District of North Carolina Case No.: 1:20-CV-00146 Judge: Martin Reidinger Date of settlement: Jan. 3 Most helpful experts: Dr. Josef Thundiyil of Orlando, Florida (emergency medicine physician) Attorneys for plaintiff: Ellis Boyle of Knott & Boyle in Raleigh and Winslow Taylor of Taylor & Taylor in Winston-Salem Attorneys for defendants: Sean Perrin of Womble Bond Dickinson in Charlotte and Pat Flanagan of Cranfill Sumner in Charlotte appreciates that the parties were able to come together and avoid a “painful and long trial.” “It was the right thing and justice was served,” Boyle said. “And the family appreciated it.” Sean Perrin of Womble Bond Dickinson in Charlotte and Pat Flanagan of Cranfill Sumner in Charlotte represented the defendants. Neither responded to requests for comment on the settlement. Follow Heath Hamacher on Twitter @ NCLWHamacher
Estate of hit-and-run victim settles for $1M ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com The estate of a woman who died after she was struck by a bread delivery truck while she was walking down a busy residential street has settled its wrongful death lawsuit for $1 million, her attorneys report. David Kirby and Mary Kathryn Kurth of Edwards Kirby in Raleigh report that 65-year-old Nancy Mallian was walking her two dogs on the shoulder of Penny Road in Cary at approximately 6 a.m. on Oct. 9, 2020 when she was hit despite having taken numerous safety precautions. “Mrs. Mallian was wearing a reflective vest and a head lamp, so she was visible to traffic, but it was dark, and she was walking with her back toward traffic,” her attorneys wrote in an email to Lawyers Weekly. The attorneys said that the truck’s passenger-side mirror struck Mallian in the back of
C o nt inu e d f r o m 2 ►
to many Washington lawyers, especially among Democrats. Tributes came from across the political spectrum, with former Judge Michael Luttig, a conservative, tweeting: “Walter Dellinger was a wonderful human being, a spectacular lawyer and counselor, and a friend.” Attorney General Merrick Garland, who worked with Dellinger at the Justice Department, lauded his impactful work and dedication. “Walter approached the law not as a career, but as a calling. He believed it was his privilege to be able to use the law to make our democracy work better for everyone,” Garland said in a statement. Dellinger also will be missed by the Duke Law community, dean Kerry Abrams said. “Walter Dellinger was a lion of
David Kirby
Mary Kathryn Kurth
the head, killing her. The truck also ran over and killed one of Mallian’s dogs. The defendant driver, 54-year-old Burt Ramos of Morrisville, left the scene but turned himself in the same day after seeing news reports of a dead pedestrian in a neighborhood he’d driven through. Ramos told authorities that he believed that he’d hit a deer, but court records show that he was charged with felony hit and run and misdemeanor death by motor vehicle. The case settled for the $1 million available policy limits after a demand letter was sent to Allstate, the insurance carrier, the attorneys said. Jodee Larcade of Raleigh rep-
the law, the legal profession, and legal education,” she said in a statement. “A cherished member of the Duke Law School faculty for more than five decades, he was a true intellectual as well as being a generous and big-hearted colleague, mentor, and friend.”
U.S. Supreme Court takes case over refusal to serve gay couples WASHINGTON (AP) — The Supreme Court has agreed to hear a new clash involving religion and the rights of LGBTQ people in the case of a Colorado web designer who says her religious beliefs prevent her from offering wedding website designs to gay couples. The high court said on Feb. 22 that it would hear the case of Lorie
SETTLEMENT REPORT — WRONGFUL DEATH
Amount: $1 million Injuries alleged: Death Case name: Settled before any suit was filed Venue: Wake County Date of settlement: Oct. 21, 2021 Insurance carrier: Allstate Most helpful experts: John Flanagan of Accident Research Specialists in Cary Attorneys for plaintiff: David Kirby and Mary Kathryn Kurth of Edwards Kirby in Raleigh Attorney for insurer: Jodee Larcade of Raleigh resented Allstate. Larcade did not immediately respond to a message seeking comment.
Smith. The Denver-area designer offers graphic and website design services and wants to expand to wedding website services, but she says her Christian beliefs would lead her to decline any request from a same-sex couple to design a wedding website. She also wants to post a statement on her website about her beliefs. Doing those things, however, would run afoul of a Colorado anti-discrimination law. Smith had argued the law violates her free speech and religious rights. The Supreme Court said in taking the case that it would look only at the free speech issue. It said it would decide whether a law that requires an artist to speak or stay silent violates the free speech clause of the First Amendment. The case is expected to be argued in the fall. In a 2-1 ruling last year, the 10th U.S. Circuit Court of Appeals denied
Smith’s attempt to overturn a lower court ruling throwing out her legal challenge. The panel said Colorado had a compelling interest in protecting the “dignity interests” of members of marginalized groups through its law, the Colorado Anti-Discrimination Act. The law, which prohibits discrimination on the basis of sexual orientation, is the same one at issue in the case of Colorado baker Jack Phillips that was decided in 2018 by the U.S. Supreme Court. The high court said at the time that the Colorado Civil Rights Commission had acted with anti-religious bias against Phillips after he refused to bake a cake for two men who were getting married. But it did not rule on the larger issue of whether a business can invoke religious objections to refuse service to LGBTQ people.
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 Fe br u ar y 28, 2022
Early intervention in litigation ■ BY GALINA DAVIDOFF While in graduate school, I worked for an early intervention program that involved sending psychologists to talk to struggling young families before they developed serious problems. Professionals of all kinds—doctors, exterminators, psychotherapists and lawyers—always point out that getting them involved earlier brings substantial benefits and prevents future problems and disasters. Litigation consultants, more commonly known as jury consultants, have been saying the same thing for years: Taking a look at your case through the jurors’ eyes early in the litigation process helps you avoid losses and maximize your wins, helps shape discovery and prepare for mediations and arbitrations. Most lawyers associate litigation consultants with mock trials conducted a few weeks before trial and with jury selection. But the most seasoned trial attorneys prefer to talk with their litigation consultant as early as possible. Plaintiffs’ attorneys may even do it before filing a complaint. Defense attorneys do it when they learn enough to realize that they have a serious matter on their hands. They send their litigation consultants the complaint and perhaps one or two additional case documents and ask for their thoughts: What is this case about for jurors? What are our potential themes? Do you see any red flags or pitfalls for our side? What are our main strengths? How would the local issues play in this litigation? What background information do we need for jurors to be able to understand the case issues? What questions will jurors have about this case? What would they want to know most of all? What experts will jurors want to hear? How damaging is this fact or document? Sometimes the consultant will send a memo outlining their thoughts in response. Sometimes there is only a conversation or two with or without a memo. In rare cases, an early jury research project would be commissioned. Jury research projects that involve
renting space, hiring surrogate jurors, flying the trial team to the case venue, feeding everyone, and videotaping the proceedings are necessarily expensive.
It appears that litigation managers are finally hearing the call for more strategic thinking and respect for jurors’ abilities and limitations. They no longer want a “no stone unturned” prolonged discovery. They want to know early on if their case is winnable and do not want to wait to find out the answer until the eve of the trial, having spent millions on discovery and litigation. Prior to the pandemic, only a small subset of jury research projects was conducted online, and those involved special platforms and technical difficulties. So, early intervention jury research was pretty rare. The pandemic greatly accelerated the trend of getting litigation consultants involved earlier rather than later in the litigation process and in taking jury research projects online. With trials postponed into an indefinite future, many chose to use the time to think about their themes and discovery strategies with their consultants’ help. And as everyone became proficient in joining Zoom meetings with colleagues, friends, and grandchildren, online projects became much more feasible, saving thousands of dol-
lars in expenses. Understanding the changing environment, large companies and insurers that manage multiple cases conducted seminars on the early use of litigation consultants. I’ve received more invitations to lead such seminars in 2020 and 2021 than in the prior 20 years taken together. The goals of early intervention specified by litigation managers were as follows: 1. To identify “nuclear” cases early on 2. To help shape discovery strategy and expert selection 3. To prepare witnesses for video depositions 4. To save money not only on the final outcome but also on the litigation process Keeping your ultimate audience in mind from the beginning of a case is beneficial in many respects. Great trial lawyers used to think about their closing arguments as soon as they started working on a case. As many have abandoned this practice, the result of discovery is often a great number of facts and arguments that do not tell a story but obscure it. That is fine if you don’t mind the expense and are prepared to then ruthlessly edit your case, limiting your trial presentation only to the facts that help you tell the winning story. But the reality of human psychology is that after we invest time and effort into developing information, we hate to have it fall by the wayside. And so you have many prolonged trials in which jurors are overwhelmed by the sheer number of facts and arguments not united by themes and story. Judges do what they can to trim the number of issues presented to the jury, but they can only do so much. Retired Judge Mark Bennet, who served on the federal bench for nearly a quarter of a century and is known not only for his opinions but also for many eloquent publications on jury selection and trial persuasion, said it best: “Walk into any state or federal See Page 5 ►
"Helping lawyers practice better, more efficiently, and more profitably." ■ PUBLISHER Liz Irwin lirwin@bridgetowermedia.com ■ EXECUTIVE EDITOR Andy Owens aowens@scbiznews.com ■ EDITOR IN CHIEF David Donovan david.donovan@nclawyersweekly.com ■ EDITORIAL Heath Hamacher, Reporter hhamacher@nclawyersweekly.com Scott Baughman, Digital Media Manager sbaughman@mecktimes.com ■ ADVERTISING Sheila Batie-Jones, Advertising Account Executive sheila.batie-jones@nclawyersweekly.com ■ ACCOUNTING & ADMINISTRATIVE Michael McArthur, Business Manager mmcarthur@bridgetowermedia.com ■ CIRCULATION Disa Ehrler, Audience Development Manager dehrler@bridgetowermedia.com Circulation: 1-877-615-9536 service@bridgetowermedia.com ■ PRODUCTION & OPERATIONS Ryan O’Shea, Production Supervisor roshea@molawyersmedia.com ©2022 BridgeTower Media. Material published in North Carolina Lawyers Weekly is compiled at substantial expense and is for the sole and exclusive use of purchasers and subscribers. The material may not be republished, resold, recorded, or used in any manner, in whole or in part, without the publisher’s explicit consent. Any infringement will be subject to legal redress. Subscriptions: $410.36 per year Established 1988 Statewide General Circulation
The difficult but important task of letting someone go
919-829-9333 • 1-800-876-5297
■ BY CHRISTOPHER R. EARLEY BridgeTower Media Newswires
B, Charlotte, NC 28204
“In any moment of decision, the best thing you can do is the right thing, the next best thing is the wrong thing, and the worst you can do is nothing.” — Theodore Roosevelt There are few things harder for me than letting go of someone who is not working out. This is, however, just a necessary part of running a successful practice that must be done from time to time. If someone has to go and you delay the inevitable, you are stalling the growth of your firm — and that person’s growth as well. That is not fair to that person, and it does not reflect strong leadership. Here are some things to keep in mind if you are faced with the hard decision of whether or not to let go of someone.
Making the decision
I call this the litmus test. If you are being really honest with yourself when evaluating your team members, the test of whether someone is
working out is simply to ask yourself: Would I enthusiastically re-hire this person again? Brutal honesty is needed here, and there is no middle ground. The answer to this simple binary question will give you clarity on whether someone is either helping you or hindering you. If it is the former, then continue to make sure that person is growing and thriving. If it is the latter, you at that point can decide either to kick the can or to be proactive and make the necessary change for your firm.
Having the conversation
It is unquestionably an uncomfortable meeting when you have to sit down with the team member to let the person go. I always make sure to have a witness present and to get right to the point. I begin the conversation by telling the person I have given great thought to the decision and have decided that he or she is no longer a good fit for the firm and would be a better fit someplace else. This is not the time to rehash the past or to argue. Being blunt and straightforward is really impor-
tant here. I believe in fair and generous severance and will briefly describe the severance offered. If done right, the entire conversation should be no longer than a few minutes.
The aftermath
You will find great relief that you made this decision. Your existing team members will probably wonder what took you so long. At the same time, the departing team member will likely realize that he was not a good fit for the position and that he can thrive and be better suited at a different company. You made a hard decision, but that hard decision instantly and positively impacted the lives of others. That is a hallmark of true and genuine leadership. No one ever enjoys letting go of someone, but it must be done when it is necessary. Christopher F. Earley is a Boston attorney and author who concentrates his practice on the representation of the seriously injured and their families.
Charlotte office: 130 North McDowell Street, Unit 704-377-6221 • 704-377-4258 fax: 1-800-8765297 www.nclawyersweekly.com For subscription questions 1-877-615-9536 service@bridgetowermedia.com North Carolina Lawyers Weekly [ISSN10411747] [USPS 002-904] is published weekly each month except April through September, when it is printed bi-weekly for $410.36 per year by North Carolina Lawyers Weekly, 130 North McDowell Street, Unit B, Charlotte, NC 28204 Periodicals postage paid at Charlotte, North Carolina 28228-9998. Postmaster: Electronic ACS Service Requested. Send address changes to: North Carolina Lawyers Weekly, Subscription Services, P.O. Box 1051, Williamsport, PA, 17703-9940 North Carolina Lawyers Weekly is a publication of BridgeTower Media, 222 South Ninth Street, Suite 900, Minneapolis, MN 55402.
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 Feb ruary 28, 2022
Survey finds most young lawyers are happy, hopeful, but want change ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com North Carolina’s newest and youngest attorneys believe that their work allows them to make society a better place, but the large majority of them also think that the legal profession needs significant changes, a recent survey has found. The Elon University survey of 812 young attorneys, conducted last November and December, focused on lawyers younger than 45 who’ve been licensed fewer than 11 years. It found that 81 percent of those surveyed agree that their job allows them to make society a better place. And while most—at some point and to some degree—have considered retiring their lawyer hats, 85 percent plan to spend all their working days practicing law, and most said that they would encourage their younger selves to pursue a legal career.
But the young attorneys also believe that the profession has much room for improvement. It found that while 16 percent of those polled believe that minor changes would be sufficient, 82 percent believe that the system needs moderate to major changes. Just 1 percent said that no changes are warranted. “Those findings combined suggest a generation of legal reforms are on the long-term horizon in North Carolina,” said Jason Husser, director of Elon Poll and associate professor of political science. Husser said that this poll is the first of its kind at Elon and could lead to a series of surveys of professions. He said that attorneys are “advisors and leaders” who play a critical role in the state’s politics and business, and many have indicated interest in seeking political office. “Their attitudes on issues are often
leading indicators about trends across the state as a whole,” Husser said. Robeson County Assistant District Attorney Andrew Smith was not part of this survey but is part of the majority who believe that many people become lawyers to make a difference. During 16 years in the food service industry, Smith said, he saw how even low-level criminal prosecutions affected individuals’ everyday lives, especially marginalized and vulnerable populations. Because of that, in part, he chose public interest work after graduating from Duke Law in 2019. Where the civil system can use some tweaks, Smith said, the criminal justice system could stand a major overhaul. “I was fortunate enough to land in the work I do, and while I certainly think I’m able to help people on an individual level, societal change is going to require far, far more time and in-
vestment from a large segment of the population,” Smith said. The survey suggests that most younger attorneys are at least somewhat satisfied with their jobs, whether they work in a firm with five employees (as a quarter of newer lawyers do) or more than 50, or in-house. The poll shows that nearly a third of younger lawyers make between $50,000 and $75,000 and a quarter make between $75,000 and $100,000. Two percent earn less than $40,000 while 3 percent earn at least $250,000. Money, of course, can’t buy everything, including the satisfaction of making a positive impact on society. “Contrary to the stereotype of the unhappy lawyer, we found most younger attorneys in North Carolina found meaning in their careers,” Husser said. Follow Heath Hamacher on Twitter @NCLWHamacher
DOT to pay $3.2M for loss of parking at drug store ■ BY DAVID BAUGHER An eminent domain lawsuit over a Wilmington property that houses a CVS drugstore has reached a $3.2 million settlement, the landowner’s attorneys report. George Autry Jr., Stephanie Autry, and Jeremy Hopkins of Cranfill Sumner in Raleigh report that the dispute concerned parking isGeorge sues that the North Carolina DeAutry Jr partment of Transportation’s road. widening plans might create. Hopkins said that the property had a AAA tenant, meaning a tenant with the highest possible credit rating, and as a result of the taking, the property had parking and drive aisles that were impacted. “It changed the highest and best use of the property,” Hopkins said. “What the DOT did was they left the owner with a property that was no longer suitable for the tenant.” The client, Ogden Associates, was landlord to the
CVS location, which Hopkins said is still working with Ogden to see if a move can be avoided in the wake of the road construction and utilities easements. “They are trying to figure out if they can work anything out,” he said. Stephanie Autry said that OdStephanie gen bought adjoining property as Autry a partial, off-site cure for the loss of parking, which corroborated the appraisers’ opinion regarding the extent of the damage due to the taking. She described the lot as a “premium location” with two other major drugstores on other corners of the intersection. “The DOT’s appraiser recognized that the site would no longer Jeremy be suitable for a premier national Hopkins drug store chain as a result of the taking,” Autry said. “However, he failed to properly
SETTLEMENT REPORT – EMINENT DOMAIN
Amount: $3.2 million Injuries alleged: Land condemnation Case name: NCDOT v. Ogden Associates, et al. Court: New Hanover County Circuit Court Case No.: 17-CVS-04042 Date of settlement: July 9, 2021 Most helpful experts: John Cockrum of Wilmington (contractor) Attorneys for landowners: George Autry Jr., Stephanie Autry and Jeremy Hopkins of Cranfill Sumner in Raleigh Attorney for condemnor: John Oates of the North Carolina Department of Justice in Raleigh value the property before the taking.” Autry said that the owner also agreed to dismiss a related MAP Act case as part of the settlement.
N.C. man hurt in dredging mishap settles suit for $3.5M ■ BY DAVID BAUGHER A North Carolina man whose foot was mangled in a mishap during a dredging operation in Florida will receive a $3.5 million settlement for his Jones Act claim, his attorneys report. Don Evans, Jr. and Seth Buskirk of Clark, Newton & Evans in Wilmington said that in 2017 their client, Kyle Ginley, was climbing a ladder up from a smaller boat to a larger boat while the two vessels were pulled next to each other. When the captain of the tugboat that was pulling the larger boat took some slack out of the tow wire, Ginley’s foot was
C o nt inu e d f r o m 4 ►
jury trial from Alaska to Florida, or from Maine to Hawaii, and you will likely discover the long-awaited cure for insomnia. Bottle it, sell it on a TV infomercial, and you could get rich … I remain shocked that lawyers with both the perseverance to make it through law school and the courage to enter a federal courtroom are still so lacking in the art of persuasion and in the traits necessary to become great trial lawyers.” It appears that litigation managers are finally hearing the call for more strategic thinking and respect for ju-
smashed between the two vessels. He suffered a fractured foot and a degloving injury (in which flesh is torn from the foot). Evans said the captain of the tug called back to check if he was clear to pull in the line but the response was unintelligible and he proceeded anyway. He also said that there was some debate between the sides over whether pulling the tug into line constituted acceleration or had an effect on the position of the craft. Ginley sued in federal court in Florida under the Jones Act, a federal law under which seamen—who aren’t eligible for workers’ compen-
sation—can sue their employers for negligence. He alleged that the defendants had failed to provide a safe means of moving between the boats, that they had repositioned the vessels without receiving clearance to do so, that the ladder rungs used were too far apart, and that the tugboat was undermanned. Evans said it was a combination of these factors that caused the problem. “It seems that when really bad accidents happen, a lot of things all coincide to make it happen and we think that’s what happened here,” he said.
Ginley reached the settlement agreement with the dredge operator in March 2021. Evans said that a separate confidential settlement was reached with two towing companies Jules Massee of Hamilton, Miller & Birthisel in Tampa, Florida, represented the dredge operator. Massee did not return a phone call seeking comment on the settlement. Eric Thiel of Banker Lopez Gassler, also in Tampa, Florida, represented the towing companies. Thiel declined comment due to the confidential nature of his clients’ settlement.
rors’ abilities and limitations. They no longer want a “no stone unturned” prolonged discovery. They want to know early on if their case is winnable and do not want to wait to find out the answer until the eve of the trial, having spent millions on discovery and litigation. Besides helping to decide whether a case is winnable or needs to be settled in a hurry, mock jury deliberations inevitably point out new avenues of strengthening the case. Because most cases never make it to a jury, these findings are typically used to drive a more favorable settlement position. One of my most satisfying profes-
sional memories is of a case that was resolved in mediation after two rounds of jury research in a bet-the-company case. The first round showed us losing the case on all counts despite the eight expensive experts that supported it. The second round validated our newly developed strategy that dispensed with heavy reliance on expert testimony in favor of a case story that resonated with jurors. When the trial lawyer incorporated the new story into his opening statement in mediation, the other side caved on the spot. (It certainly helped that our new story was focused on the embarrassing mistakes made by the
opposition, which would have greatly hurt its public image if exposed at trial.) The opposing attorney shook our client’s hand and said, “Congratulations, you just made your case!” This was a great outcome, but it could have been even greater if the intervention had been conducted earlier, saving some of the money spent on experts whose testimony was not needed to persuade a jury. Galina Davidoff is a Boston-based jury consultant with a nationwide practice. The founder of Davidoff Consulting, she can be contacted at gdavidoff@davidoffconsulting.com.
6 / NEWS
N O R T H C A R O L I N A L A W Y E R S W E E K LY I Fe br u ar y 28, 2022
PENALTIES / Board couldn’t raise new argument on appeal C o nt inu e d f r o m 1 ►
ed in the several counties for any breach of the penal laws of the state … shall be faithfully appropriated and used exclusively for maintaining free public schools.” De Luca later added the New Hanover County Board of Education as an additional plaintiff. The trial court granted summary judgment for the attorney general. The Court of Appeals reversed, but was overruled by the Supreme Court, which found that no genuine issue of material fact existed. In a footnote, the justices acknowledged the passage of N.C.G.S. § 14776.1(b), which took effect in 2019 and provides that, “except as otherwise provided by law, all funds received by the state, including cash gifts and donations, shall be deposited in the state treasury.” Pointing to the new law, the Board of Education sought to amend its complaint. The Court of Appeals permitted the amendment, reversed the trial court’s summary judgment order, and remanded for entry of an order compelling the state to transfer all Smithfield funds presently held and paid in the future to the state treasury. The state appealed, and the Supreme Court again reversed the Court of Appeals in a Feb. 11 opinion authored by Justice Samuel Ervin IV. “The trial court was never asked to consider whether the Board of Education’s complaint sufficed to state a claim pursuant to N.C.G.S. § 147-76.1 and could not have done so because the relevant statutory provision did not exist at the time that the trial court decided to grant summary judgment in the Attorney General’s favor,” Ervin wrote. “In other words, the Court of Appeals lacked the authority to address and
decide a wholly new claim that had been asserted for the first time on remand from this court’s initial decision.”
Can’t forget the trial court
The state challenged whether the Board of Education had sufficiently stated a claim for relief predicated upon N.C.G.S. § 147-76.1. The board argued that it had alleged that the Attorney General was receiving and disbursing state funds, and that a complaint shouldn’t be dismissed simply because it failed to cite the statutory provision upon which its claim rests. As long as the complaint alleges facts that give the opposing party sufficient notice to permit it to understand the nature of the claim that is being asserted, that claim has been sufficiently stated, the board reasoned. The problem with this argument—and the cases relied upon by the board—was that the decisions all addressed the role of the trial court in evaluating the sufficiency of pleadings, Ervin said. In the case at hand, the trial court was never asked to consider whether the Board of Education’s complaint sufficed to state a claim. “As a result, this case does not involve ‘mislabel[ing]’ or a ‘fail[ing] to label’ a claim properly; instead, the Board of Education could not have asserted a claim based upon § 147-76.1 before the trial court because the amended complaint was filed years before the relevant statutory provision was enacted,” Ervin wrote. The board cited no authority in support of the proposition that a plaintiff may assert for the first time in the appellate division that its complaint alleges the existence of a cause of action that didn’t exist at the time the plaintiff filed its
complaint in the trial division, Ervin said. “Aside from the chaotic conditions that could result in the appellate courts in the event that the procedures utilized by the Court of Appeals in this case became commonplace, allowing such a result to occur would effectively deprive the trial court of the ability to perform its primary role—either through the judge or a jury—as the finder of fact, since the trial court would not have had the opportunity to decide the issue of whether the record contains sufficient factual support for the proposed claim for relief.” Further, the original cause of action was constitutional, rather than statutory in nature, making it even more challenging to understand how the state would have been able to understand the nature of the claim against it or prepare for trial, he added.
Swapping horses not allowed
Ervin was careful to note that the Board of Education retained the ability to assert any claim that might be available to it pursuant to the newly enacted N.C.G.S. § 14776.1. “Our decision in this case reflects nothing more than a recognition that the Board of Education is not free to raise a completely new claim for the first time on appeal from a trial court order granting summary judgment in favor of the opposing party, a result that reaffirms the long-standing principle that a party cannot ‘swap horses between courts in order to get a better mount in the Supreme Court.’” Ervin also corrected a “misapprehension” of the appeals court, which stated that the footnote reference to N.C.G.S. § 147-76.1 in the first Supreme Court opinion tasked
it with additional proceedings regarding the new statute. He said such footnotes shouldn’t “be interpreted as an invitation to consider new claims that are unrelated to any contention that had been advanced before this court, the Court of Appeals, or the trial court to that point in the litigation.” Justice Philip Berger Jr. did not participate in the consideration or decision of the case. Nazneen Ahmed, press secretary for the Attorney General, said the “office is reviewing the court’s decision, but we’re pleased with the result.” Also pleased with the result was Blakely E. Hildebrand of the Southern Environmental Law Center, who represented intervenors North Carolina Coastal Federation and Sound Rivers. “The Board of Education attempted to raise an entirely new claim for the first time on appeal, which is not permissible under North Carolina civil procedure,” Hildebrand said. “At a basic level, process is important. The grant monies being paid through the Environmental Enhancement Program are doing really important work protecting and supporting our environment throughout the state and we were pleased to see the court didn’t allow an end run around the rules in order to abandon this really critical program.” Paul Stam of the Stam Law Firm in Apex, who represented the Board of Education, didn’t respond to a request for comment. The 38-page decision is The New Hanover County Board of Education v. Stein (Lawyers Weekly No. 010-006-22). The full text of the opinion is available online at nclawyersweekly.com.
PHISHING / Trusted apps create a path for dangerous hacks C o nt inu e d f r o m 1 ►
ing smishing (SMS/text phishing), vishing (voice phishing), and other -ishings. But Brown said that while calendar scams might go by a different name, it’s the same game. “Basically, it’s a form of phishing that takes advantage of the user-friendly features in calendars where an appointment is automatically added to your calendar even before you accept it,” Brown said. Calendar fraud can be particularly effective because these very high-risk entries, notifications, and invitations reside within trusted web applications, said Jack Pringle of Adams & Reese in Columbia, South Carolina, who focuses his practice on privacy, cybersecurity, and data management. “A lot of people don’t give thought that one’s calendar might be an attack vector,” Pringle said. “But as with anything else, it’s important to understand that it’s not magic if someone manages to put something on your calendar if they know your email address and if settings allow them to put things on your calendar without approval.” A study conducted by cybersecurity and antivirus provider Kaspersky Lab, focusing mainly on Google
Calendars, found that users are less likely to ignore calendar invitations and events and more likely to open links on the fly that they assume to be sound. These conference links act like a legitimate meeting app, Brown said, but lead the recipient to an empty room. And by the time they realize what they’ve waded into, it’s too late. “No one else shows up for the meeting but, in the background, something has happened,” Brown said. “Maybe it’s downloaded malware or ransomware or keylogger [software that records the strokes the user makes on their keyboard] or some sort of command-and-control software.”
A good day of work beats a bad day of phishing
One third of law firms with 100 attorneys or more have been victimized by cybercriminals, according to the American Bar Association, and they’re not the only targets in the legal industry. In 2019, the North Carolina State Bar was infiltrated by hackers demanding ransom. While the association’s servers were locked up and its website rendered inoperable, no data appeared to have been
stolen. The bar recovered from the attack without paying a ransom and intensified its efforts to improve network security, including moving its data offsite into a secure cloud environment with real-time and redundant backups. “As you might imagine, we receive our fair share of … attacks, so employee education is a big part of our security plan,” said Peter Bolac, assistant executive director and legislative liaison at the bar. Brown recommended quarterly, if not monthly, security awareness training. He likens it to regular CPR training for lifeguards, except it provides “muscle memory” for hacker defense. “It keeps us all safer and keeps everyone thinking about it,” Brown said. “If you see something suspicious, anything that you don’t remember putting there, report it. If you’re at a firm with secretaries or paralegals, check with them.” Most experts agree that protecting everything, all the time, from experienced, motivated bad actors is likely impossible. In addition to being computer whizzes, scammers are notoriously persistent, sometimes setting reminders to send messages until the invitation is deleted or the recipient enters the
room. To help counteract that persistence, as with other cyber scams, experts recommend a healthy dose of skepticism and common sense. In a world where information from family schedules to financial information is synced and responses are often instantaneous, Brown said that the motto should be “don’t trust anything.” “Take a second to stop, breathe, and think,” Brown said. “Don’t just assume that something is trustworthy.” Some platforms claim to have adjusted their settings to help defend against these types of attacks, but Pringle said that the working assumption should be that a calendar application by default is going to automatically accept invitations. “Each of us has to weigh the benefits of various technology tools and features—convenience, ease, rapid transactions, etc.—with the potential risks those tools and features create or heighten,” Pringle said. “There is almost always some tension between security and convenience … we have to put friction in the process [of cyber-attacks].” Follow Heath Hamacher on Twitter @NCLWHamacher
NEWS / 7
N O R T H C A R O L I N A L A W Y E R S W E E K LY I Feb ruary 28, 2022
Circumstances supported warrantless cell phone ‘ping’ ■ BY NICHOLAS A. HURSTON Exigent circumstances supported a warrantless request to a cellphone provider for a “ping” of the defendant’s cellphone, the 4th U.S. Circuit Court of Appeals has held in a case of first impression. Prosecutors had argued that the man’s violent criminal history and armed threats of harm to civilians and police allowed them to consider the defendant “an extreme urgent threat to the community,” which justified the warrantless search. Senior Judge Barbara Milano Keenan agreed with the lower court’s statement that even a brief delay in apprehending the defendant placed several individuals at significant risk of harm. “Based on the record before us, we hold that the officers reasonably concluded that use of the ‘exigent form’ was necessary to obtain a prompt response from the cell phone provider when an armed and dangerous suspect was at large,” Keenan wrote in a Feb. 1 opinion. The case stemmed from domestic violence allegations reported by Jaquanna Foreman, who was defendant Erick Hobbs’s former girlfriend. Foreman was at home with her 7-year-old daughter when Hobbs used a handgun to forcibly enter her home and retrieve a television set. Before leaving, Hobbs threatened to kill her, her daughter, and other family members. Hobbs also allegedly stated that
if she contacted the police, he also would kill any responding officers. Officers took Foreman and her daughter to the police station. At the station, Foreman told the officers of Hobbs’s criminal record. Detective Michael Nesbitt verified that information and concluded there was an “extreme urgent threat to the community.” Around midnight, Nesbitt submitted an “exigent form” to Hobbs’s cellphone provider, T-Mobile, seeking immediate police access without a warrant to “pings” that would show the location of Hobbs’s cell phone and to call logs showing the phone numbers Hobbs contacted. T-Mobile responded within an hour with real-time pings on Hobbs’s phone. Nesbitt was alerted every 15 minutes to Hobbs’s general location. Another officer used the call logs to figure out which of Hobbs’s associates lived within that general area. Hobbs tried to flee when a team of officers tried to conduct a traffic stop of his vehicle. He was arrested, and a handgun was found on the ground between the curb and the driver’s side of his vehicle. Hobbs moved to suppress evidence of the firearm. The exigent circumstances exception to the warrant requirement didn’t justify the officers’ use of cell phone pings and call logs, he argued. District Judge Deborah K. Chasanow of the District of Maryland denied the motion, holding that Nesbitt “reasonably concluded that the ‘exi-
gent form’ was the only way to ensure a timely response from T-Mobile, because ‘even an hour delay under the circumstances here could be disastrous.’” Chasanow also said the officers had properly used the call logs to “narrow the search area” shown by the pings. Keenan noted this was a case of first impression since the Fourth Circuit hadn’t yet considered the exigent circumstances exception in the context of police use of a cellphone “ping” along with call logs from a suspect’s cellphone. She found a 2016 decision from the 2nd U.S. Circuit Court of Appeals, United States v. Caraballo, instructive. The exigent circumstances in that case “justified the officers’ failure to obtain a warrant for access to the defendant’s cell phone ‘pings.’” The Caraballo court pointed out that the officers had “good reason to believe” the defendant was armed and they “were aware that he was the primary suspect in a brutal murder.” Most importantly, however, the officers “had ‘specific reasons to think’ that he would act to kill undercover officers and other informants who had infiltrated his drug operation.” While the officers could have obtained a warrant within about six hours, the defendant’s cellphone provider would act immediately to comply with any “exigent” request. Further, according to the court, there was relatively limited police intrusion on the defendant’s privacy interests. The use
of pings was “strictly circumscribed” and the officers located the defendant within two hours. Keenan said the same reasoning applied here. “When Foreman recounted Hobbs’ actions to the police, she was trembling and distraught, explaining that Hobbs was armed and had threatened to kill her, her minor daughter, other family members and any law enforcement officers who might try to apprehend him,” she wrote. She added that the officers were “so concerned about Foreman’s safety that they escorted her to the police station, an extremely rare precaution according to Detective Nesbitt, and initiated ‘constant surveillance’ of Foreman’s residence while Hobbs was still at large.” Keenan said the district court made no error when it held that “‘the only way to get help from T-Mobile’ in a timely fashion was by submitting an ‘exigent form.’” “Under these circumstances, we hold that the officers reasonably concluded that Hobbs was armed and dangerous, that he posed an imminent threat to Foreman, to her family members, and to law enforcement officers, and that these exigent circumstances required them to seek the cell phone location information from TMobile without delay.” Keenan offered a word of caution, though, emphasizing that the exigent S e e P a g e 24 ►
MED-MAL / Barrier was placed in body on purpose C o nt inu e d f r o m 1 ►
But Judge Darren Jackson, writing for a unanimous court, disagreed. “For statutory construction and public policy reasons, and because defendant Yalcinkaya implanted the Gore-Tex barrier intending that it be permanently implanted, we decline to hold that a purposeful medical implant that initially serves a therapeutic purpose but potentially later has a non-therapeutic effect requires application of the 10-year statute of limitations period for foreign objects,” Jackson wrote. “To do so would allow any therapeutic device implant, whether a Gore-Tex barrier, cardiac stent, pacemaker, knee replacement, etc., to be subject to the 10-year statute of limitations if an expert testifies that at some point during the 10-year period it became non-therapeutic.”
Disjunctive statutory language
The North Carolina statutes provide three different time limitations for medical malpractice claims. At issue was N.C.G.S. § 1-15(c)(3), which states: “where damages are sought by reason of a foreign object, which has no therapeutic or diagnostic purpose or effect, having been left in the body, a person seeking damages for malpractice may commence an action therefor within one year after discovery thereof as hereinabove provided, but in no event may the action be commenced more than 10 years from the last act of the defendant giving rise to the cause of action.” Bryant argued that the Gore-Tex barrier was a nontherapeutic foreign object, triggering the 10-year statute of limitations for her medical malpractice claim. In support, she pointed to
her expert’s statements that the barrier was improperly used in her case. “Here, the crux of the statutory language in question focuses on the phrase ‘a foreign object, which has no therapeutic or diagnostic purpose or effect, having been left in the body,’” Jackson wrote. “We hold that the statute’s natural and ordinary meaning indicates that an object can have either a therapeutic purpose or therapeutic effect to be removed from the outer 10-year statute of limitations.” Even accepting Bryant’s expert’s testimony that the barrier was left in her body too long and should have been removed after eight weeks, the expert still acknowledged that it served a therapeutic purpose when properly used. “Assuming that the Gore-Tex barrier should have been removed eight weeks after implantation, the barrier still had a therapeutic purpose on the date it was implanted: to prevent adhesion formation at the incision site,” Jackson said. “This therapeutic purpose does not disappear simply because the barrier was not timely removed.” Whether the barrier was timely removed may have created a factual dispute about whether it had a therapeutic effect, but not whether it had a therapeutic purpose, he added. Because of the disjunctive “or” in the statute, and the agreement by both sides as to the therapeutic purpose of the Gore-Tex barrier, “the dispute over whether the Gore-Tex barrier had a therapeutic effect after being left in plaintiff’s body for nearly 10 years does not change § 1-15(c)’s application in this case,” Jackson wrote. “If our legislature intended the object to both have a therapeutic purpose
and effect in order to be exempt from applying the 10-year statute of limitations, then the legislature would have included the conjunctive ‘and’ instead of the disjunctive ‘or’ between ‘purpose’ and ‘effect.’” From a public policy and legislative intent perspective, the facts “seem precisely inapposite to what our legislature intended when drafting this 10-year outer limit for certain foreign object malpractice claims,” he added. “Here, the Gore-Tex barrier was purposefully implanted by defendant Yalcinkaya with the purpose of decreasing post-surgical pelvic adhesions on the surgical incision site,” making it unlike cases where defendants accidentally leave items in a plaintiff’s body only to be found years later.
Matter of first impression
Bryant’s other claims met a similar fate. Her claim of actual fraud failed, given that Yalcinkaya made detailed notes about the implantation of the barrier and Bryant’s need for continuing treatment. She also voluntarily discontinued her treatment with Yalcinkaya, Jackson noted. As for breach of fiduciary duty and constructive fraud, she was unable to allege and prove that Yalcinkaya benefited from the transaction, as there were no factors about her case or procedure that would enhance his reputation or give him any possible benefit. Finally, Jackson agreed that res ipsa loquitor was inapplicable in the case. “We agree with the trial court that res ipsa loquitor cannot apply because a layperson, without the assistance of expert testimony, could not infer negligence from the facts of this case based on common knowledge and ordinary human experience,” he wrote. “Plain-
tiff’s procedure involved the surgical placement of a Gore-Tex adhesion barrier, the proper use of which is outside the common knowledge, experience and sense of a layperson.” The case involved a matter of first impression as to whether the statutory language on foreign objects in medical malpractice cases was disjunctive or not, said Tamura D. Coffey of Coffey Law in Bermuda Run, who represented Yalcinkaya. “Any lawyer involved in medical malpractice work needs to be aware when dealing with a device or object placed by a surgeon to pay very close attention to the statutory language involving foreign objects, and whether or not it had a therapeutic purpose or effect, at inception and continuing thereafter,” Coffey said. Harvey L. Kennedy of Kennedy, Kennedy, Kennedy & Kennedy in Winston-Salem represented Bryant. Kennedy said that his client intends to appeal the case to the North Carolina Supreme Court. “Kimberly Bryant lost her ability to have children allegedly because of Dr. Yalcinkaya’s decision to insert a GoreTex device inside of her body during surgery without her knowledge and consent,” Kennedy said in a written statement. “Our position is that Kimberly Bryant never should have been permanently stripped of her opportunity to have children when she was only in her 20’s and when she and her husband definitely wanted to have a family.” The 23-page decision is Bryant v. Wake Forest University Baptist Medical Center (Lawyers Weekly No. 011034-22). The full text of the opinion is available online at nclawyersweekly. com.
8 / OPINION DIGESTS
N O R T H C A R O L I N A L A W Y E R S W E E K LY I Fe br u ar y 28, 2022
Opinions N.C. SUPREME COURT
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N.C. COURT OF APPEALS
N.C. SUPREME COURT
Criminal Practice Video Sweepstakes – PredominantFactor Test – Standard of Review – Game of Chance
Predominant-Factor Test
In deciding that plaintiffs’ video sweepstakes game violated G.S. § 14-306.4, our Court of Appeals held that the game violated the statute “regardless of whether [the game] is dependent on skill or dexterity ... if it is ‘visual information, capable of being seen by a sweepstakes entrant, that takes the form of actual game play, or simulated game play.’” The Court of Appeals majority based its interpretation on the fact that the list of prohibited games in the definition of “entertaining display” in § 14-306.4(a)(3) was set out “by way of illustration and not exclusion.” Although the list in question was not intended to be exhaustive, the list contemplates only games of chance. Subsection (i), the statute’s “catch-all provision,” prohibits sweepstakes through “any other video game not dependent on skill or dexterity…” The logical implication of this provision is that the other games listed are also games “not dependent on skill or dexterity” and that only sweepstakes conducted through video games of chance are prohibited under § 14-306.4. We reaffirm our prior holding that § 14-306.4 prohibits sweepstakes conducted “through the use of an entertaining display,” but only when the electronic display “takes the form of actual game play, or simulated game play” where the game in question is “not dependent on skill or dexterity.”
Standard of Review
In recent cases applying § 14306.4, we did not expressly state the standard of review. However, our court freely substituted its own judgment based on the undisputed evidence. We hold that whether chance or skill predominates in a given game is a mixed question of fact and law and is therefore reviewed de novo when there is no factual dispute about how a game is played. There is no factual dispute in this case.
Application
After a prior litigation loss, plaintiffs revised their video sweepstakes game so that it now has a “winnerevery-time” feature. Players can now “nudge” a ¢ symbol into place and receive a nominal prize of some cents. Nevertheless, 75 percent of turns will still have no opportunity to compete for the largest possible prize of $2,400. Therefore, the new feature does not alter plaintiffs’ game such that chance does not predominate over
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N.C. BUSINESS COURT
skill or dexterity. Plaintiffs now also allow players to “nudge” numbers twice. Skill and dexterity still have no more than a de minimis role in plaintiffs’ new game. Plaintiffs’ own expert testified that, when players were allowed only a single nudge per game, players correctly nudged the reel into place between 86 and 90 percent of the time. A game need not be won 100 percent of the time for there to be nothing more than a minimal level of skill or dexterity involved, and undisputed evidence shows that the skill and dexterity involved are essentially de minimis. Chance controls plaintiffs’ game by determining that in 75 percent of turns, players will not be eligible to play for the top prize and, indeed, cannot play for anything more than mere cents. Accordingly, just as is the case with a traditional slot machine, the return to the player in plaintiffs’ game is dependent on chance. Accordingly, plaintiffs’ game violates § 14306.4(a)’s prohibition on sweepstakes conducted through video games of chance. Modified and affirmed. Gift Surplus, LLC v. State ex rel. Cooper (Lawyers Weekly No. 010-001-22, 23 pp.) (Robin Hudson, J.) (Samuel Ervin & Philip Berger, JJ., not participating) Appealed from Onslow County Superior Court (Ebern Watson, J.) On discretionary review from the Court of Appeals. 2022NCSC-1
Criminal Practice Rape – Constitutional – Confrontation Clause – Expert Testimony – Prior Bad Acts – Assumed Error – No Prejudice In this drug-facilitated rape case, even assuming the trial court erred by allowing the manager of a laboratory to testify about the results of tests conducted by other toxicologists, the error was not prejudicial. First, defendant does not base his Confrontation Clause argument on the part of the manager’s testimony that then allowed another expert to testify about the synergistic effects of Cyclobenzaprine and Clonazepam. More importantly, even ignoring all of the manager’s testimony, there was ample evidence of (1) the victim’s ingestion of Cyclobenzaprine, (2) that drug’s effects, (3) the victim’s behavior exhibiting those effects, and (4) defendant’s sexual assault upon the victim. We modify and affirm the Court of Appeals’ decision upholding defendant’s convictions for second-degree forcible rape and first-degree kidnapping. We also assume without deciding that the trial court erred in admitting the testimony of two witnesses (Chanel Samonds and Elise Weyersberg) who said defendant had sexually assaulted them in the past. Although defendant and the victim presented two contrasting stories about the events of 4 January 2017, the vic-
19
N.C. COURT OF APPEALS, UNPUBLISHED
tim’s version of the events was then corroborated by extensive supporting external testimony and evidence. This corroborating evidence included: testimony by the victim’s mother and a waitress regarding the victim’s apparent incapacitation; surveillance video footage demonstrating this incapacitation; a sexual assault nurse examiner’s testimony regarding the victim’s description of the alleged rape during the sexual assault examination; the nurse examiner’s testimony regarding the victim’s vaginal injury consistent with penetration by a penis; subsequent DNA testing of the rape kit; Detective Danielle Helms’s testimony regarding her interview with the victim and subsequent investigation; a sheriff’s lieutenant’s testimony regarding his review of the evidence and investigation of the scene of the alleged crime; Detective April Samples’ testimony regarding the investigation process; and Dr. Ernest Lykissa’s testimony regarding the presence of a drug common in drug-facilitated sexual assaults in the victim’s hair sample, among other testimony and evidence. We see this case not as simply a “credibility contest,” as argued by defendant, but as one with overwhelming evidence of defendant’s guilt. It is within the context of this overwhelming evidence that we must consider the relative impact of the Samonds and Weyersberg testimony alleging past sexual assault. By the time Samonds and Weyersberg shared their allegations with the jury, Dr. Lykissa, the nurse examiner, the victim’s mother, former forensic scientist Kari Norquist, Detective Helms, the waitress, and the sheriff’s lieutenant, among others, had already corroborated the victim’s testimony, with additional supporting testimony to come later. Under these circumstances, we cannot conclude that a reasonable possibility exists that the jury would have reached a different verdict but for the assumedly erroneous admission of the Samonds and Weyersberg testimony. Modified and affirmed.
Concurrence
(Newby, C.J.): Since we have assumed without deciding that the trial court erred, it is unnecessary to discuss defendant’s arguments regarding the trial court’s alleged error under the Confrontation Clause. State v. Pabon (Lawyers Weekly No. 010-002-22, 36 pp.) (Robin Hudson, J.) (Paul Newby, C.J., concurring) (Philip Berger, J., not participating) Appealed from Cabarrus County Superior Court (Christopher Bragg, J.) On appeal and discretionary review from the Court of Appeals. 2022NCSC-16
Criminal Practice Constitutional – Batson Error – Rejection of Race-Neutral Reasons Where (1) the trial court rejected
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the prosecutor’s race-neutral reasons for peremptorily striking two of the three Black venire members (and the only two Black women); (2) on the issue of jurors’ ability to concentrate, the prosecutor engaged in disparate questioning of a Black juror and a white juror, given the stresses of their jobs; (3) the trial court considered arguments not presented by the state; and (4) the trial court held defendant to too high a burden of proof, defendant’s Fourteenth Amendment rights were violated when the prosecutor peremptorily struck venire member Gwendolyn Aubrey from the jury. We reverse the trial court’s rejection of defendant’s challenge under Batson v. Kentucky, 476 U.S. 79 (1986), and remand for any further proceedings. After the prosecutor struck two Black women from the jury, defendant raised a Batson challenge, presenting evidence tending to indicate that racial discrimination was a substantial motivating factor. The prosecutor then proffered race-neutral justifications for each peremptory strike. We focus solely on juror Aubrey. As reasons for striking Aubrey, the prosecutor said she had responded, “I suppose” when asked whether she could be fair and impartial. The prosecutor also cited her body language and lack of eye contact. Upon remand, the trial court found that Aubrey’s “I suppose” answer was in response to a different question: one regarding whether she could concentrate on the trial, given that her job required her to work “day and night.” Furthermore, the prosecutor’s comments about Aubrey’s body language and eye contact were not corroborated by the trial court in the record and were contested by defense counsel. The trial court then considered the case-specific and statewide statistical evidence proffered by defendant tending to show racial discrimination. Although the trial court ruled that the race-neutral justifications offered by the prosecutor were not supported by the record and that defendant had shown statistical disparities in the exercise of peremptory challenges, the trial court concluded that “essential evidence of purposeful discrimination—which is the defendant’s burden to prove—is lacking.” Our review reveals several errors that collectively leave this court with the definite and firm conviction that a mistake has been committed, thus rendering the trial court’s determination clearly erroneous. We note four interrelated errors: (1) overruling defendant’s Batson challenge after rejecting all of the race-neutral reasons provided by the prosecutor; (2) applying an improperly high burden of proof; (3) independently considering reasoning not offered by the prosecutor; and (4) giving inadequate consider-
OPINION DIGESTS / 9
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ation to racially disparate questioning and acceptance of comparable jurors. First, if the trial court finds that all of the prosecutor’s proffered raceneutral justifications are invalid, it is functionally identical to the prosecutor offering no race-neutral justifications at all. In such circumstances, the only remaining submissions to be weighed—those made by the defendant—tend to indicate that the prosecutor’s peremptory strike was motivated in substantial part by discriminatory intent. As a consequence, then, a Batson violation has been established. After finding that both race-neutral justifications for the prosecutor’s peremptory strike of Aubrey failed, the trial court should have ruled on this record that defendant met his burden under Batson. Ruling otherwise was erroneous. Second, the trial court erred by holding defendant to an improperly high burden of proof. Under Batson, a defendant must establish that is more likely than not that a peremptory strike was improperly motivated. Instead, the trial court looked for smoking-gun evidence of racial discrimination similar to what was present in Foster v. Chatman, 578 U.S. 488 (2016), and Miller-El v. Dretke, 545 U.S. 231. After noting the glaring evidence of discrimination present in those cases, the trial court found, “This case is markedly distinguishable from the facts of this controlling authority.” While that may be true, it is not the facts of those decisions that make them controlling authority—it’s the law. Third, the trial court erred by considering reasoning not presented by the prosecution on its own accord. For instance, when considering the prosecutor’s questioning of Aubrey and white juror David Williams, the court ruled that the comparison was “not ... particularly pertinent because Mr. Williams had previously stated that, with respect to his supervisory duties, ‘I can juggle things around[,]’ ... whereas Ms. Aubrey did not indicate any flexibility in her ‘day and night’ work schedule that might ease her concern about missing work.” But the prosecution had never advanced this “day and night” argument on its own accord. Accordingly, the trial court erred by considering this reasoning. Fourth and finally, the trial court erred by failing to adequately consider the disparate questioning and disparate acceptance of comparable white and Black prospective jurors. First, out of the 15 potential jurors that the prosecutor had asked about their ability to focus up to this point, Aubrey was the only one the prosecutor singled out for further specific questioning. She was far from the only one who had substantially similar logistical challenges that might impact her ability to focus. Second, after the prosecutor asked the question about jurors’ ability to focus, Williams volunteered, “I have 11 employees out in the field, so —”. Indeed, Williams had previously noted that he was self-employed and that “this is our season[.]” Instead of following up with Williams about this comment, the prosecutor, without explanation, turned immediately to Aubrey: “Okay. Ms. Aubrey, do you feel confident you can focus on what’s going on here?” Ms. Aubrey then replied “I sup-
pose[,]” and later, “I think so[,]” responses that are perfectly normal in jury selection. When viewed in the context of the full record, this exchange illustrates disparate questioning and exclusion of Aubrey compared to substantially comparable white potential jurors who were unquestioned and accepted by the prosecutor. The trial court should have fully considered this evidence within the totality of defendant’s submissions. Its failure to do so was erroneous. The totality of the evidence established that it was sufficiently likely that the strike of Aubrey was motivated in substantial part by discriminatory intent. Accordingly, the trial court’s order overruling defendant’s Batson objection is reversed, defendant’s conviction is vacated, and the case is remanded to the trial court for any further proceedings.
Concurrence
(Earls, J.): I would further hold that the prosecutor’s use of a peremptory challenge to exclude Viola Jeffreys, another African-American woman, also violated the Fourteenth Amendment. The prosecutor cited Jeffreys’ work as a nurse at Dorothea Dix Hospital as an indication that she might be sympathetic to defendant’s mental health issues. However, defendant’s competency issues had already been resolved pre-trial, and there was no reason to believe that the jury would hear about or have anything to decide about his competency. Significantly, the prosecutor did not ask any other juror if they had experience with mental health or competency issues. These facts alone are sufficient to demonstrate that the prosecutor’s race-neutral explanation is pretextual.
Dissent
(Berger, J.): The back and forth of a Batson hearing can be hurried, and prosecutors can make mistakes when providing explanations for the use of peremptory challenges. That is entirely understandable, and mistaken explanations should not be confused with racial discrimination. Batson prohibits purposeful discrimination, not honest, unintentional mistakes. The mistaken explanation provided by the prosecutor cannot, by definition, be purposeful discrimination. I respectfully dissent. State v. Clegg (Lawyers Weekly No. 010-003-22, 91 pp.) (Robin Hudson, J.) (Anita Earls, J., concurring) (Philip Berger, J., joined by Paul Newby, C.J. and Tamara Barringer, J., dissenting) Appealed from Wake County Superior Court (Paul Ridgeway, J.) Amy Kunstling Irene for the state; Dylan Buffum for defendant. 2022-NCSC-11
Criminal Practice Indecent Liberties – Expert Witness – Inadmissible Testimony – Vouching Since there were no physical symptoms of sexual abuse, the trial court erred by allowing a prosecution expert to testify—based on the child victim’s disclosures to family, law enforcement, and a forensic interviewer at a child advocacy center—that the child had been sexually abused. We affirm the Court of Appeals’ dismissal without prejudice of de-
fendant’s claim of ineffective assistance of counsel. Otherwise, we reverse and remand for a new trial. In addition to evidence that turned on the credibility of the victim, the state presented evidence of changes in the child’s behavior following the incident, namely, “bedwetting, nightmares, and social withdrawal.” But bedwetting, nightmares, and social withdrawal may have causes besides sexual abuse. Therefore, such behavioral changes cannot serve as substantial evidence that supports a verdict for a sexual offense independent of direct evidence of abuse. Admission of the improper testimony here had a probable impact on the jury’s finding that defendant was guilty of taking indecent liberties with a child, and we must conclude the error had the prejudicial effect necessary to establish that the error was a fundamental error. Accordingly, permitting the expert to testify that the child was “sexually assaulted” in the absence of definitive physical evidence, irrespective of testimony concerning the victim’s behavioral changes, constituted plain error. The trial court also erred in allowing the expert, while describing her treatment recommendations, to identify defendant as the perpetrator of the victim’s assault. This constituted improper opinion testimony as to the credibility of the victim’s testimony. Affirmed in part; reversed and remanded in part.
Dissent
(Newby, C.J.): When viewed as a whole, the record shows the physical and psychological evidence corroborates the victim’s consistent account of the sexual abuse she suffered. Given the consistency of the child’s testimony during the investigation and at trial, as well as the physical and psychological evidence, the expert’s challenged testimony did not rise to the level of plain error. The jury’s verdict did not hinge on the expert’s allegedly erroneous testimony. Rather, a review of the record shows the victim’s credibility was well established through other means. State v. Clark (Lawyers Weekly No. 010-004-22, 25 pp.) (Robin Hudson, J.) (Paul Newby, C.J., joined by Tamara Barringer, J., dissenting) (Philip Berger, J., not participating) Appealed from Pitt County Superior Court (Jeffrey Foster, J.) On appeal from the Court of Appeals. Lisa Finkelstein for the state; Paul Herzog for defendant. 2022-NCSC-13
Domestic Relations Parent & Child – Termination of Parental Rights – Failure to Legitimate The respondent-father appeals the termination of his parental rights based on a failure to legitimate the minor, “Alice.” Counsel for respondent filed a no-merit brief identifying two potential issues. Counsel acknowledged that, although respondent objected to the admission of the certified reply of DHHS to the petitioner-mother stating that no affidavit of paternity had been received, respondent did not argue to the trial court that the document in question was not DHHS’s certified reply to petitioner’s inquiry and G.S. § 7B-1111 (a) (5)(a) requires that DHHS’s “certi-
fied reply shall be submitted to and considered by the court.” Counsel also questioned whether the trial court’s findings of fact were supported by clear, cogent and convincing evidence. However, counsel noted that the trial court’s findings are supported by the testimony of both parties, and the trial court made findings that encompass all of the statutory factors required to determine whether termination of respondent’s parental rights was in Alice’s best interests. Having reviewed the two issues identified by counsel in the no-merit brief, we are satisfied that the trial court’s order terminating respondent’s parental rights is supported by clear, cogent, and convincing evidence and is based on proper legal grounds. Affirmed. In re K.M.S. (Lawyers Weekly No. 010-005-22, 5 pp.) (Paul Newby, C.J.) Appealed from the District Court in Gaston County (John Greenlee, J.) No brief filed for petitioner or guardian ad litem; Michael Spivey for respondent. 2022-NCSC6
Civil Practice Appeals – Amended Complaint – New Statute – Hog Farm Settlement When this court remanded this case to the Court of Appeals for “further proceedings,” those proceedings did not include ruling that plaintiff’s complaint asserted a new cause of action based on a statute that was enacted three years after the filing of plaintiff’s complaint. We reverse and remand for reinstatement of the trial court’s grant of summary judgment for defendants on plaintiff’s original claim that the proceeds from a settlement between hog producers and the state were civil penalties that were required to be made available to the state’s school boards under N.C. Const. art. IX, § 7. Plaintiff remains free to file a new complaint in the trial division asserting any claims that might be available pursuant to G.S. § 147-76.1, which requires all funds received by the state to be deposited in the state treasury, or any other statutory provision. Reversed and remanded. Plaintiff’s complaint did not state a claim for relief under § 14776.1. This case does not involve “mislabel[ing]” or a “fail[ing] to label” a claim properly; instead, plaintiff could not have asserted a claim based upon § 147-76.1 before the trial court because the complaint was filed years before the statute was enacted. The Court of Appeals lacked the authority to address and decide a wholly new claim that had been asserted for the first time on remand from this court’s initial decision. As Judge Bryant recognized in her dissent, “the Rules of Civil Procedure apply to our trial courts” and “we are not authorized to substitute those rules [for the rules that] govern our review on appeal[,]” i.e., the North Carolina Rules of Appellate Procedure. Plaintiff cites no authority in support of the proposition that a plaintiff may assert for the first time in the appellate division that a complaint alleges the existence of a cause of action that did not exist at the time the plaintiff filed his or her complaint in the trial division.
10 / OPINION DIGESTS Allowing such a result would effectively deprive the trial court of the ability to perform its primary role— either through the judge or a jury— as the finder of fact, since the trial court would not have had the opportunity to decide the issue of whether the record contains sufficient factual support for the proposed claim for relief. Although the concept of notice pleading is liberal in nature, a complaint must nonetheless state enough to give the substantive elements of a legally recognized claim. In spite of the fact that the amended complaint sufficed to put the Attorney General on notice that plaintiff contended that he had violated N.C. Const. art. IX, § 7, we cannot see how the allegations set out in the amended complaint would have permitted the Attorney General to “prepare for trial” with respect to a claim that did not, at that time, exist or how plaintiff could have pled or proved the elements of a “legally recognized claim” based upon a statutory provision that had not yet been enacted or even proposed. In addition, assuming, without deciding, that plaintiff has properly stated the elements of any claim for relief that might be available to it pursuant to § 147-76.1, plaintiff would have been required to allege that the Attorney General had failed to deposit the funds that the hog producers have paid in accordance with the agreement into the state treasury. The complaint is, however, completely devoid of any such allegation. Instead, the complaint simply alleges that the Attorney General had failed to deposit the relevant funds into the Civil Penalty and Forfeiture Fund, which is an entirely different kettle of fish. Moreover, the originally stated cause of action was constitutional, rather than statutory. As far as we have been able to ascertain, nothing in § 147-76.1 positively changes the rule which governs the proper resolution of the civil penalties issue. For that reason, nothing in State v. Currie, 19 N.C. App. 241 (1973), aff’d, 284 N.C. 562 (1974), or the decisions upon which it relies provides any support for a determination that the enactment of a statute during the pendency of an appeal that does not have any direct bearing upon the proper resolution of the issue that is before the appellate court on appeal allows a party to assert a completely new claim for the first time in an intermediate appellate court on remand from the decision of a state court of last resort. As a result, the enactment of § 147-76.1 does not constitute a change in the applicable legal principles governing the claim asserted in the amended complaint that was addressed in the first round of appellate decisions in this case. Plaintiff remains free to file a new complaint in the trial division asserting any claims that might otherwise be available to it pursuant to § 147-76.1 or any other statutory provision. Our decision reflects nothing more than a recognition that plaintiff is not free to raise a completely new claim for the first time on appeal from a trial court order granting summary judgment in favor of the opposing party, a result that reaffirms the long-standing principle that a party cannot swap horses between courts in order to get a better mount in the Supreme Court. The Court of Appeals erred by considering and granting plain-
tiff’s request for relief pursuant to § 147- 76.1. Reversed and remanded. New Hanover County Board of Education v. Stein (Lawyers Weekly No. 010-006-22, 38 pp.) (Samuel Ervin, J.) (Philip Berger, J., not participating) Appealed from Wake County Superior Court (Paul Ridgeway, J.) On appeal and discretionary review from the Court of Appeals. Paul Stam and Daniel Gibson for plaintiff; James Doggett and Marc Bernstein for defendant; Mary Maclean Asbill, Brooks Rainey Pearson and Blakeley Hildebrand for intervenors; Christopher Edwards and Marcus Gadson for amicus curiae. 2022-NCSC-9
Workers’ Compensation Average Weekly Wage – Calculation Method – Standard of Review Although the record contains sufficient evidence to support the specific facts found by the Industrial Commission regarding the seasonal nature of the landscaping position in which the defendant-staffing agency placed plaintiff, the Commission’s analysis does not reflect a proper understanding of the legal standard, which focuses upon whether the method used to determine plaintiff’s average weekly wage most nearly approximates the amount he would be earning in that position if not for his injury. Dividing the wages plaintiff earned over 16 weeks by 52, instead of 16, assumes that plaintiff would only have worked for defendant for a fraction of a year in the absence of his injury, an assumption that might not be plausible, given that temporary employees sometimes worked longer than their original 520-hour assignments and the Commission’s failure to find that plaintiff would not have received further work assignments from defendant had he not been injured. We modify and affirm the Court of Appeals’ decision to remand to the Commission for further findings and conclusions. Our review of the relevant case law indicates that, in the absence of a showing that the use of a particular method for calculating an injured employee’s average weekly wages does or does not produce “fair and just” results lacks sufficient evidentiary support or rests upon an erroneous application of the relevant legal standard, which is whether the result reached by the Commission “most nearly approximate[s] the amount which the injured employee would be earning ... in the employment in which he [or she] was working at the time of his injury,” G.S. § 97-2(5), the applicable standard of review is whether the Commission’s decision with respect to that issue is supported by any competent evidence. When the issue before an appellate court is whether the Commission’s determination rests upon a misapplication of the applicable legal standard, that determination is a question of law subject to de novo review. In its order, the Commission determined that the use of the third method for calculating plaintiff’s average weekly wages set out in § 97-2(5) “would produce an inflated average weekly wage that is not fair to Defendants because Plaintiff was
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employed in a temporary capacity with no guarantee of permanent employment, length of a particular assignment, or specific wage rate, and he was assigned to a client account whose work was seasonal” and that average weekly wages of $111.64 would be “fair and just to both sides” given that it took “into account that Plaintiff was working a temporary assignment that most likely would have ended once he worked 520 hours” and that “annualize[d] the total wages that Plaintiff likely could have expected to earn in the assignment.” Plaintiff’s challenge to the validity of the Commission’s determinations rests upon an assertion that the approach adopted by the Commission cannot be squared with the applicable legal standard that has been enunciated by this court. Although the record does contain sufficient evidence to support the specific factual assertions set out in the Commission’s order, its analysis does not reflect a proper understanding of that legal standard, which focuses upon whether, based upon a consideration of all relevant facts and circumstances, the chosen method for calculating plaintiff’s average weekly wages “most nearly approximate[s] the amount which the injured employee would be earning ... in the employment in which he [or she] was working at the time of his [or her] injury,” given that dividing the wages that plaintiff earned over 16 weeks by 52, instead of 16, assumes that plaintiff would have only worked for defendant for a fraction of a year in the absence of his injury, an assumption that might not be a plausible one given the existence of evidence tending to show that temporary employees sometimes worked more than their originally contracted 520 hours at specific assignments and the Commission’s failure to find that plaintiff would not have received further work assignments from defendant had he not sustained a compensable back injury (regardless of what the situation might have been with an “average” employee). Since the Commission appears to have found the facts on the basis of a misapprehension of the applicable law, and since the Court of Appeals appears to have made its own factual determinations in the course of reversing the Commission’s decision rather than simply reviewing the Commission’s decision using the applicable standard of review, the most appropriate disposition is to remand to the Commission for the entry of an order that contains findings and conclusions based upon a correct understanding of the applicable law. Modified and affirmed.
Dissent
(Barringer, J.): Our precedent uniformly holds that, in a workers’ compensation action, whether a certain method calculates an average weekly wage that is fair and just to both employee and employer is a question of fact. Here, the Commission found that the fifth method, not the third method, produced results fair and just to both parties. Competent evidence supported this finding. Defendant’s CEO, Thomas Chandler, testified that defendant’s clients agreed not to hire an employee permanently until the employee had worked for 520 hours. Typically, after the 520-hour contract period,
workers who were not hired as permanent employees were either let go or the assignment ended. When not assigned to a client, employees might wait a significant amount of time before another position became available. Furthermore, since employees could only be placed in positions for which they were qualified, an employee’s language barrier might prevent him or her from finding a position. Plaintiff testified that he spoke very little English. Chandler further testified that plaintiff was working for a landscaping company, whose work was seasonal. Plaintiff had completed over 95 percent of his 520 hours when he ceased working. When plaintiff was released to return to full duty, defendant was able to place him for three weeks. However, after that job ended, defendant was unable to place plaintiff with another client. Later, a different staffing agency was also unable to find plaintiff work. Additionally, plaintiff was unable to find a job for the eight months preceding his employment with defendant. This competent evidence supported the Commission’s findings that plaintiff would have stopped working for defendant around 7 December 2015, regardless of the injury. Accordingly, we should affirm the opinion and award. Nay v. Cornerstone Staffing Solutions (Lawyers Weekly No. 010-007-22, 46 pp.) (Samuel Ervin, J.) (Tamara Barringer, J., joined by Paul Newby, C.J., dissenting) (Philip Berger, J., not participating) Appealed from the Industrial Commission. On discretionary review from the Court of Appeals. Kathleen Sumner, David Stewart and Jay Gervasi for plaintiff; Joy Brewer and Ginny Lanier for defendants; Michael Ballance, Tracey Jones, Bruce Hamilton, Michael Bertics and Stewart Poisson for amici curiae. 2022-NCSC-8
Domestic Relations Parent & Child – Termination of Parental Rights – Likelihood of Repetition of Neglect Even though the respondentfather maintained employment throughout this case, he was unsuccessful in obtaining stable housing suitable for “Ronnie,” which was also a component of respondent’s case plan. Furthermore, respondent’s progress on his substance abuse issues in the two months prior to the termination of parental rights hearing did not negate the likelihood of future neglect, given his pattern of relapses. We affirm the termination of respondent’s parental rights. As the trial court’s binding findings demonstrate, respondent moved at least four times in the year preceding the termination of parental rights (TPR) hearing. Moreover, respondent had only occupied his newest residence for a few months by the time that the TPR hearing sessions had ended, and the residence still required additional repairs. These findings, based on record evidence, support the trial court’s determination that respondent lacked sufficient stability in his life, which in turn supports the trial court’s conclusion that there was a substantial likelihood of repetition
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12 / OPINION DIGESTS of neglect if Ronnie were returned to respondent’s care. With respect to his substance abuse issues, respondent fell substantially short of completing an intensive outpatient therapy program as recommended and continued to have positive drug tests as the case progressed. While respondent had begun to make progress in the month preceding the start of the TPR hearing, such progress did not adequately establish that his ongoing and unresolved substance abuse issues would not contribute to Ronnie’s future neglect if the child was returned to respondent’s care. Instead, the trial court’s findings establish a pattern of respondent’s drug relapses and distinct lack of candor when engaging with substance abuse treatment providers, which further buttressed the trial court’s determination that neglect would likely be repeated because of respondent’s “unaddressed” substance abuse issues. Similarly, respondent did not begin to make progress on his domestic violence issues until shortly before the start of the termination of parental rights hearing. The trial court’s findings, taken together, reflect that although respondent made some progress with respect to stability, substance abuse, and domestic violence issues, any measurable improvement did not begin until merely a month or two before the start of the TPR hearing. Respondent did not begin to make meaningful progress on his case plan for almost two years while Ronnie was in DSS custody. By the time the TPR hearing began,
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respondent’s progress had not been maintained for a sufficient period of time to show that he had ameliorated the conditions that led to Ronnie’s initial neglect adjudication. Based on the evidence before it, the trial court did not err when it determined that “repetition of neglect [was] highly likely” if Ronnie were returned to respondent’s care. Although the trial court found there was a bond between respondent and Ronnie, the bond between parent and child is just one of the factors to be considered under G.S. § 7B-1110(a), and the trial court is permitted to give greater weight to other factors. Respondent has failed to show that the trial court abused its discretion in determining that termination of respondent’s parental rights was in Ronnie’s best interests. Affirmed. In re J.R.F. (Lawyers Weekly No. 010-008-22, 21 pp.) (Michael Morgan, J.) Appealed from New Hanover County District Court (J. H. Corpening, J.) Jane Thompson for petitioner; Sophie Goodman for guardian ad litem; Christopher Watford for respondent. 2022-NCSC-5
Criminal Practice Probation Revocation – Absconding – Willfulness Where the probation violation report alleged that defendant willfully (1) failed to report to the probation office, (2) failed to return his probation officer’s telephone calls, (3) failed to provide a certifiable
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address, and (4) generally failed to make himself available for supervision as directed by his probation officer, defendant’s admission that he willfully failed to make himself available for supervision demonstrates that defendant absconded “by willfully avoiding supervision or by willfully making [his] whereabouts unknown to the supervising officer.” G.S. § 15A-1343(b)(3a). We affirm the Court of Appeals’ decision upholding the revocation of defendant’s probation. Sufficient notice of the absconding allegations was provided to defendant in the probation violation reports; the fact that defendant’s alleged violations of “regular conditions of probation” likewise served to constitute grounds for his commission of the expressly alleged probation violation of absconding did not prevent these violations from operating in such a dual capacity. Similarly, the state’s factual basis for its absconding allegation constituted sufficient notice to defendant of the basis for the state’s claim of a revocable violation of probation. Defendant’s admission of the probation violations as alleged, including the absconding allegation, confirms the effectiveness of the notice which informed defendant of the individual absconding allegation. Defendant’s knowledge of the individual allegation of absconding through the notice provided to him in the probation violation reports is buttressed by his awareness of the trial court’s ability to activate his suspended sentences upon defendant’s admission to absconding, as defendant capably addressed the trial court in an unsuccessful effort to convert his multiple terms of incarceration to concurrent sentences rather than consecutive sentences. Defendant was sufficiently and properly informed by the probation violation reports of his alleged violations and his alleged conduct which constituted the alleged violations, including the alleged absconding behavior which defendant admitted. Affirmed.
Dissent
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(Earls, J.): By failing to sharply distinguish between “absconding,” which permits a trial court to immediately revoke a defendant’s probation, and other probation violations, which do not, the majority’s opinion could be seen to be changing the law to permit the revocation of probation for failing to report, failing to answer a probation officer’s phone calls, and failing to notify a probation officer of a change in address. I am sure that is not the course this court intends to take. The violation reports filed by defendant’s probation officer only allege, and defendant therefore only admitted to, conduct which amounts to violations of G.S. § 15A-1343(b)(3)— for which a court “may not revoke probation unless the defendant has previously received” two periods of confinement under G.S. § 15A-1344(d2). Allowing actions which explicitly violate a regular condition of probation other than those found in § 15A1343(b)(3a) to also serve, without the state showing more, as a violation of that very same provision, renders portions of the statutory language in § 15A-1343 superfluous. The allegations in this case did not sufficiently allege willfulness; therefore, I dissent. State v. Crompton (Lawyers Weekly No. 010-009-22, 23 pp.) (Mi-
chael Morgan, J.) (Anita Earls, J., dissenting) (Philip Berger, J., not participating) Appealed from Buncombe County Superior Court (Marvin Pope, J.) On appeal from the Court of Appeals. Brenda Eaddy for the state; Sterling Rozear for defendant. 2022NCSC-14
Domestic Relations Parent & Child – Reunification Cessation & Termination of Parental Rights While the respondent-father’s completion of all of his court-ordered services prior to a trial home placement was expressly recognized by the trial court with regard to respondent’s case plan in its findings of fact, the trial court also made findings of fact regarding respondent’s subsequent arrest on more than 27 sex offense charges involving juveniles, the discovery of photographs of naked children on his cellular phone, and the substantiation of his sexual abuse of baby “Alice” and his exposure of Alice to an injurious environment. In addition, the trial court found that respondent was incarcerated with no scheduled trial date and with a substantial bond, and that respondent lacked an adequate source of income to support Alice. The trial court also made multiple findings of fact regarding possible relative placements for Alice and problems regarding these potential placements which prevented them from being approved as homes for the juvenile. The trial court did not abuse its discretion by ceasing reunification efforts. We affirm the trial court’s orders ceasing reunification efforts and terminating respondent’s parental rights. In its order terminating respondent’s parental rights, the trial court made extensive findings of fact indicating the following: (1) that respondent had been arrested and had remained incarcerated on dozens of pending sexual offense charges involving juveniles, including Alice; (2) that DSS had substantiated respondent’s sexual abuse of Alice, as shown by physical and behavioral evidence regarding the juvenile, along with testimony from respondent’s sister and brother-in-law, among others; and (3) that respondent’s suggested alternative placements for Alice had all been found to be unsuitable for the juvenile. In light of these unchallenged findings of fact which were fully supported by the evidence, we affirm the trial court’s determination that the ground of dependency existed for the termination of respondent’s parental rights, in that respondent was incapable of providing for Alice’s care and well-being, that there was “a reasonable probability that the incapacity would continue for the foreseeable future,” and that respondent lacked any alternative childcare for the juvenile. G.S. § 7B-1111(a)(6). In re A.K. (Lawyers Weekly No. 010-010-22, 11 pp.) (Michael Morgan, J.) Appealed from Randolph County District Court (Scott Etheridge, J.) Chrystal Kay for petitioner; Lindsey Reedy for guardian ad litem; Leslie Rawls for respondent. 2022-NCSC-2
Criminal Practice Stand Your Ground – Common Law Supplanted – Commission of Felony – Causal Nexus Although not expressly stated, the
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14 / OPINION DIGESTS General Assembly’s intent to abolish the common law right to perfect self-defense—via the enactment of the Stand Your Ground statutes—is unmistakable. Because there was no casual nexus between (1) defendant’s violation of the law against a felon possessing a gun and (2) his invocation of the protection of the Stand Your Ground statutes, the trial court erred by instructing the jury that defendant would not be entitled to invoke the Stand Your Ground statutes if he were in the process of committing the felony of being a felon in possession of a handgun. However, defendant cannot show prejudice because the jury found that he not only killed his attacker, but also committed armed robbery during the encounter. We modify and affirm the Court of Appeals’ decision upholding defendant’s murder conviction.
Common Law Supplanted
G.S. § 14-51.3 closely tracks the common law definition of the right to self-defense. This statute lacks a “carve out” explicitly conveying the General Assembly’s intention to preserve the common law. Together, these facts indicate that the General Assembly meant to replace the existing common law right to perfect selfdefense with a new statutory right.
Causal Nexus
G.S. § 14-51.4 says “The justification described in G.S. 14-51.2 and G.S. 14-51.3 is not available to a person who used defensive force and who ... was attempting to commit, committing, or escaping after the commission of a felony.” A literal
interpretation of § 14-51.4(1) would produce absurd consequences inconsistent with the General Assembly’s manifest purpose of making selfdefense more widely available as a justification for the use of force. At common law, no group of defendants was categorically prohibited from invoking the right to selfdefense. A defendant was prohibited from invoking self-defense only if it was in some sense the defendant’s “fault” that the confrontation occurred. If we adopted the state’s proposed interpretation, a woman in possession of a little more than one and a half ounces of marijuana, a felony in North Carolina, could not rely on self-defense to justify the use of defensive force if her abusive boyfriend, for reasons unrelated to her marijuana possession, began to beat and threaten to kill her. It is doubtful that the General Assembly intended to completely disavow a fundamental common law principle in a statute which otherwise closely hews to the common law. We hold that in order to disqualify a defendant from justifying the use of force as self-defense pursuant to § 14-51.4(1), the state must introduce evidence that “but for the defendant” attempting to commit, committing, or escaping after the commission of a felony, the confrontation resulting in injury to the victim would not have occurred. Here, the trial court did not instruct the jury on this causal nexus requirement. Therefore, the jury instructions it delivered were erroneous.
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No Prejudice
The jury determined beyond a reasonable doubt that defendant was engaged in the commission of a felony—other than possession of a firearm by a felon—when he shot the man who allegedly attacked him: robbery with a dangerous weapon. Because one of the elements of robbery with a dangerous weapon was defendant’s use or threatened use of a firearm, the jury finding defendant guilty of this offense meant that the jury determined beyond a reasonable doubt that defendant’s felonious conduct was immediately causally connected to the circumstances giving rise to his shooting the decedent. Based upon the outcome of defendant’s trial, it is indisputable that there existed an immediate causal nexus between his felonious conduct and the confrontation during which he used assertedly defensive force, and the felony disqualifier applies to bar his claim of self-defense. Because the state did prove to the jury’s satisfaction that defendant committed the felony offense of robbery with a deadly weapon, and based on the uncontroverted facts, defendant cannot establish that he was prejudiced by the trial court’s erroneous jury instruction. Modified and affirmed.
Concurrence
(Newby, C.J.): I agree with the majority’s determination that §§ 14-51.3 and 14-51.4 supplant the common law with respect to perfect self-defense. However, because defendant failed to preserve his causal
nexus argument for appellate review, this court should not address it. Further, even if defendant did preserve his causal nexus argument, § 14-51.4 does not require the state to prove a causal nexus between a defendant’s commission of a felony and his use of self-defense. Therefore, I do not join the portion of the majority’s opinion that places a causal nexus element into § 1451.4. State v. McLymore (Lawyers Weekly No. 010-011-22, 29 pp.) (Anita Earls, J.) (Paul Newby, C.J., joined by Tamara Barringer, J., concurring in the result) (Philip Berger, J., not participating) Appealed from Cumberland County Superior Court (Claire Hill, J.) On discretionary review from the Court of Appeals. Marc Sneed for the state; Sterling Rozear for defendant. 2022-NCSC12
Domestic Relations Parent & Child – ICWA – Visitation Cessation Although the respondent-mother asserted that she had Cherokee Indian heritage and might have a distant Cherokee relation on her mother’s side of the family, respondent’s assertions did not indicate that the child, “Carrie,” is an “Indian child” within the meaning of the Indian Child Welfare Act. Indian heritage, which is racial, cultural, or hereditary does not indicate Indian tribe membership, which is political. Thus, these statements do not pro-
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vide reason to know that Carrie is an Indian child under 25 C.F.R. § 23.107(c). We affirm the trial court’s cessation of visitation in a permanency planning order and its termination of respondent’s parental rights. In deciding to stop visitation between respondent and the teenage Carrie, the trial court found, “Upon entering foster care, [Carrie] exhibited behaviors such as walking on her tippy toes, talking in a baby voice, being noncompliant and throwing tantrums as well as selfharming behaviors.” Carrie received medical evaluations and was diagnosed with post-traumatic stress disorder. “During the period of time [Carrie] did not have contact with her [respondent,] these behaviors would improve.” “When visits or contact with [respondent] occurred, [Carrie’s] behaviors would regress.” Carrie desired to be adopted and did not see her mother as part of her future. Respondent only attended six visits with Carrie, and she “appeared at a visit impaired, fell asleep at a visit, made false promises to [Carrie,] and told [Carrie] to not comply with Ashe County DSS.” Respondent’s calls with Carrie were at times not appropriate and sometimes involved intensely questioning Carrie, making irrational comments, or giving Carrie false hope. Respondent continued to have positive drug screens, refused some drug screenings, did not attend a referred parenting class, and never completed her psychological evaluation. Respondent also absconded from the facility at which she was required to undergo treatment as a condition of her probation and refused to meet with the social worker in January 2020. Given the foregoing findings of fact, we are unable to say that the trial court abused its discretion by ceasing respondent’s visitation with Carrie. Affirmed. In re C.C.G. (Lawyers Weekly No. 010-012-22, 20 pp.) (Tamara Barringer, J.) Appealed from Ashe County District Court (Jeanie Houston & David Byrd, JJ.) Grier Hurley for petitioner; Paul Freeman for guardian ad litem; Jacky Brammer for respondent. 2022-NCSC-3
Criminal Practice DVPO Violation – Knowledge – Sufficient Evidence Even though defendant did not
attend the hearing at which an ex parte civil domestic violence protective order (DVPO) was continued, he was served with the ex parte DVPO and given notice of the hearing. Moreover, after police arrived while he was attacking the victim, he admitted that he knew the victim had obtained a DVPO. There was sufficient evidence to show that defendant knowingly violated the DVPO. We reverse the Court of Appeals’ ruling to the contrary. We reinstate defendant’s convictions for violating a civil DVPO while in possession of a deadly weapon, felonious breaking or entering, and being a habitual felon. State v. Tucker (Lawyers Weekly No. 010-013-22, 11 pp.) (Tamara Barringer, J.) Appealed from Mecklenburg County Superior Court (Jesse Caldwell, J.) On discretionary review from the Court of Appeals. Bethany Burgon for the state; Guy Loranger for defendant. 2022NCSC-15
Domestic Relations Parent & Child – Termination of Parental Rights – Plan Completion Even though the respondentmother completed her case plan, in uncontested findings, the trial court found that (1) her elder daughter, “Nadina,” was abused by her father; (2) respondent continued to refuse to believe Nadina’s claims of sexual abuse by her father; (3) respondent continued to contend that Nadina’s self-harming behavior of cutting herself was only to get attention; (4) respondent continued to call Nadina a liar; (5) respondent consistently failed to recognize her children’s special needs; (6) respondent said she would not provide her children their prescribed medications if she felt that did not need them; (7) respondent said she “did not know” whether her younger daughter, “Galena,” should be around her father; and (8) respondent lacked insight into the issues that led to DSS involvement and her role and responsibility in contributing to the situation. The trial court found that respondent had not demonstrated that she had gained knowledge from her case plan about how to resolve the issues at home, had showed no positive changes, and was not able to protect Galena from her father or any other male. These unchallenged findings support the trial court’s determination that there was a likelihood of future
neglect if Galena were returned to respondent’s care. Respondent’s completion of her case plan does not preclude a determination that neglect is likely to reoccur. We affirm the termination of respondent’s parental rights in Galena. In re G.D.C.C. (Lawyers Weekly No. 010-014-22, 10 pp.) (Tamara Barringer, J.) Appealed from Johnston County District Court (Resson Faircloth, J.) Jennifer O’Connor for petitioner; Marie Mobley for guardian ad litem; Thomas Diepenbrock for respondent. 2022-NCSC-4
Domestic Relations Neglect Adjudication – Standard of Review – De Novo The Court of Appeals was asked to decide whether the facts contained in a stipulation agreement supported the trial court’s decision to dismiss petitioner’s allegations of neglect of the respondent-mother’s baby, “Kelly.” The Court of Appeals should have applied a de novo standard of review; instead, it gave deference to the trial court’s dismissal of the claim of neglect, stating that it could not “say as a matter of law that the trial court erred by failing to conclude that Kelly was a neglected juvenile.” We vacate the decision of the Court of Appeals and remand with instructions to apply the proper standard of review. In re K.S. (Lawyers Weekly No. 010-015-22, 9 pp.) (Philip Berger, J.) Appealed from Cumberland County District Court (Luis Olivera, J.) On discretionary review from the Court of Appeals. Patrick Kuchyt for petitioner; Michelle FormyDuval Lynch for guardian ad litem; Thomas Diepenbrock for respondent. 2022NCSC-7
Tort/Negligence Unfair Trade Practices – Capital Investment – Not ‘In Commerce’ Where plaintiff’s loan to defendant Robertson’s trucking business was a capital-raising device, it was not “in or affecting commerce.” Moreover, the loan was neither between businesses nor between a business and a consumer. As a result, the Unfair and Deceptive Trade Practices Act does not apply. We affirm the Court of Appeals’ reversal of the trial court ruling to
the contrary. Defendant solicited $100,000 from plaintiff as a capital investment in his trucking company and then defaulted on his repayment obligations. Even if defendant acted in bad faith, since plaintiff’s loan was a capital raising device, it was outside the normal business activity of the purported company and therefore not “in or affecting commerce.” HAJMM Co. v. House of Raeford Farms, Inc. 328 N.C. 578, 403 S.E.2d 482 (1991). Furthermore, the UDTPA seeks to regulate interactions between businesses and those involving businesses and consumers. White v. Thompson, 364 N.C. 47, 691 S.E.2d 676 (2010). There is no evidence that plaintiff was a consumer of the business, nor that she was engaged in any commercial transaction with the company. Plaintiff was an investor in the company. The investments provided by plaintiff and any related exchanges concern the company’s internal operations. Since the interaction in question occurred within a single business, it falls outside the ambit of the UDTPA. Affirmed.
Dissent
(Earls, J.): For the purposes of the UDTPA, the General Assembly defined “commerce” to include “all business activities, however denominated, [except] professional services rendered by a member of a learned profession.” G.S. § 75-1.1(b). The UDTPA contains only one other enumerated exception, a provision excluding certain acts undertaken “in the publication or dissemination of an advertisement.” G.S. § 751.1(c). Neither of these exceptions applies here. Like all remedial statutes, the UDTPA is to be construed liberally to accomplish the purpose of the Legislature and to bring within it all cases fairly falling within its intended scope. The majority erred by expanding HAJMM, which involved the issuance of a stock certificate, conduct that fell under the ambit of the North Carolina Securities Act. Further, it is not clear that the company at issue here had any “business purpose” or “day-to-day activities” other than the “acquisition of capital” from people like plaintiff. Moreover, even if White means that the UDTPA does not apply to actions that remain confined within a single business, it is difficult to
16 / OPINION DIGESTS discern how a company receiving funding from an entirely unaffiliated investor is an interaction occurring entirely within a single market participant. Defendant’s conduct is clearly encompassed within the plain language of the UDTPA, even as that language has been construed in our precedents. Nobel v. Foxmoor Group, LLC (Lawyers Weekly No. 010-016-22, 16 pp.) (Philip Berger, J.) (Anita Earls, J., joined by Robin Hudson, J., dissenting) Appealed from New Hanover County Superior Court (Charles Henry, J.) On appeal from the Court of Appeals. Amanda Mason and Sarah Thomas for plaintiff; James Lea for defendant. 2022NCSC-10
Elections Constitutional – Declaration of Rights – Partisan Gerrymandering Even though our state constitution delegates the task of redistricting primarily to the legislature, the task must be performed in conformity with the state constitution, and it is the duty of this court to review the legislature’s work to ensure such conformity using judicially manageable standards. Here, the trial court’s findings demonstrate that the redistricting maps drawn by the General Assembly for the U.S. Congress and for both houses of our state legislature violate multiple provisions of the N.C. Constitution. We reverse the decision of the three-judge panel and remand to that court to oversee the redrawing of the maps by the General Assembly or, if necessary, by the court. Our constitution’s promise that “all elections shall be free” means that every vote must count equally. N.C. Const. art. I, § 10. A legislative body can only reflect the will of the people if it is elected from districts that provide one person’s vote with substantially the same power as every other person’s vote. In North Carolina, a state without a citizen referendum process and where only a supermajority of the legislature can propose constitutional amendments, it is no answer to say that responsibility for addressing partisan gerrymandering is in the hands of the people, when they are represented by legislators who are able to entrench themselves by manipulating the very democratic process from which they derive their constitutional authority. Accordingly, the only way that partisan gerrymandering can be addressed is through the courts, the branch which has been tasked with authoritatively interpreting and enforcing the North Carolina Constitution. The trial court made extensive factual findings based on the evidence presented at trial. These factual findings confirmed plaintiffs’ assertions that each of the three enacted maps (districting maps for the U.S. Congress, the N.C. House of Representatives, and the N.C. Senate) were “extreme partisan outliers” and the product of “intentional, pro-Republican partisan redistricting.” After making these extensive findings of fact, the trial court concluded as a matter of law that claims of extreme partisan gerrymandering present purely political questions that are nonjusticiable under the North Carolina Constitution. Accordingly, the court concluded that the enacted
maps are not unconstitutional as a result of partisan gerrymandering. We emphatically disagree.
Political Question Doctrine
Whether partisan gerrymandering claims present a nonjusticiable “purely political question” under North Carolina law is a question of first impression. Simply because the U.S. Supreme Court has concluded partisan gerrymandering claims are nonjusticiable in federal courts, it does not follow that they are nonjusticiable in North Carolina courts. First, our state constitution is more detailed and specific than the federal constitution in the protection of the rights of our citizens. Second, state law provides more specific neutral criteria against which to evaluate alleged partisan gerrymanders, and those criteria would not require our court system to consider 50 separate sets of criteria, as would federal court involvement. We conclude, as a matter of state law, that plaintiffs’ partisan gerrymandering claims are justiciable under the N.C. Constitution. In Stephenson v. Bartlett, 355 N.C. 354 (2002), we did not conclude that the text of our state constitution permits the General Assembly to “consider partisan advantage and incumbency protection”; rather, we concluded that federal law permitted that consideration by citing to the decision of Gaffney v. Cummings, 412 U.S. 735 (1973). Resolving Stephenson did not require us to decide the legality of partisan gerrymandering under the N.C. Constitution. The mere fact that responsibility for reapportionment is committed to the General Assembly does not mean that the General Assembly’s decisions in carrying out its responsibility are fully immunized from any judicial review. This court is the ultimate interpreter of our state constitution. So too when it comes to reapportionment.
Justiciability
Plaintiffs argue that the legislative defendants’ districting plans violate the free elections clause, equal protection clause, free speech clause, and freedom of assembly clause of our constitution’s Declaration of Rights. Partisan gerrymandering prevents election outcomes from reflecting the will of the people and such a claim is cognizable under the free elections clause. When a districting plan systematically makes it harder for one group of voters to elect a governing majority than another group of voters of equal size, the General Assembly unconstitutionally infringes upon that voter’s fundamental rights to vote on equal terms and to substantially equal voting power. When legislators apportion district lines in a way that dilutes the influence of certain voters based on their prior political expression—their partisan affiliation and their voting history—it imposes a burden on a right or benefit, here the fundamental right to equal voting power on the basis of their views. This practice subjects certain voters to disfavored status based on their views, undermines the role of free speech and association in formation of the common judgment, and distorts the expression of the people’s will and the channeling of the political power derived from them to their representatives in government based on viewpoint. Once a plaintiff shows that a map
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infringes on their fundamental right to equal voting power under the free elections clause and equal protection clause or that it imposes a burden on that right based on their views such that it is a form of viewpoint discrimination and retaliation based on protected political activity under the free speech clause and the freedom of assembly clause, the map is subject to strict scrutiny and is presumptively unconstitutional and the government must demonstrate that the classification it has imposed is necessary to promote a compelling governmental interest. Partisan advantage is neither a compelling nor a legitimate governmental interest, as it in no way serves the government’s interest in maintaining the democratic processes which function to channel the people’s will into a representative government. Incumbency protection may ordinarily be a permissible governmental interest if it is applied evenhandedly, is not perpetuating a prior unconstitutional redistricting plan, and is consistent with the equal voting power requirements of the state constitution; however, incumbency protection is not a compelling governmental interest that justifies the denial to a voter of the fundamental right to substantially equal voting power under the N.C. Constitution. Other widely recognized traditional neutral redistricting criteria, such as compactness of districts and respect for other political subdivisions, may also be compelling governmental interests. If the General Assembly has created a map that infringes on individual voter’s fundamental right to equal voting power and cannot show that the map is narrowly tailored to a compelling governmental interest, courts must conclude the map is unconstitutional and forbid its use. We hold partisan gerrymandering claims are justiciable in North Carolina courts under the free elections clause, equal protection clause, free speech clause, and freedom of assembly clause of the Declaration of Rights.
Elections Clause
The legislative defendants argue that “the federal constitution bars plaintiffs[’] claims against the congressional plan” under the Elections Clause, U.S. Const. art. I, § 4, cl. 1, because the word “Legislature” in that clause forbids state courts from reviewing a congressional districting plan violates the state’s own constitution. We disagree. This argument, which was not presented at the trial court, is inconsistent with nearly a century of precedent of the U.S. Supreme Court affirmed as recently as 2015. It is also repugnant to the sovereignty of states, the authority of state constitutions, and the independence of state courts, and would produce absurd and dangerous consequences.
Extreme Gerrymandering
The General Assembly has not demonstrated that the congressional map, the N.C. State House map, and the N.C. State Senate map, despite their extreme partisan bias, are nevertheless carefully calibrated toward advancing some compelling neutral priority. Accordingly, the maps fail strict scrutiny and must be rejected.
Concurrence
(Morgan, J.): Commensurate with the General Assembly’s constitutional authority to draw legislative maps is one’s constitutional right to participate in legislative elections which
shall be free of actions—such as the General Assembly’s creation of the legislative redistricting maps here— which are tantamount to the predetermination of elections and, hence, constitute constitutional abridgement.
Dissent
(Newby, C.J.): None of the constitutional provisions cited by plaintiffs prohibit the practice of partisan gerrymandering. Because the constitution expressly assigns to the General Assembly the authority to redistrict, and this court is without any satisfactory or manageable standards to assess redistricting decisions by the legislative branch, we should not and cannot adjudicate partisan gerrymandering claims. The claims here present a nonjusticiable political question, and this court’s intrusion violates separation of powers. Harper v. Hall (Lawyers Weekly No. 010-017-22, 217 pp.) (Robin Hudson, J.) (Michael Morgan, J., joined by Anita Earls, J., concurring) (Paul Newby, C.J., joined by Philip Berger & Tamara Barringer, JJ., dissenting) Appealed from a three-judge panel in the Superior Court of Wake County. Narendra Ghosh, Burton Craige, Paul Smith, Abha Khanna, Lalitha Madduri, Jacob Shelly, Graham White, Elisabeth Theodore, Stanton Jones, Samuel Callahan, Stephen Feldman, John Wester, Adam Doerr, Erik Zimmerman, Sam Hirsch, Jessica Ring Amunson, Zachary Schauf, Karthik Reddy, Urja Mittal Hilary Klein, Allison Riggs, Mitchell Brown, Katelin Kaiser, Jeffrey Loperfido, Noor Taj, Tom Boer and Olivia Molodanof for plaintiffs; Amar Majmundar, Terence Steed, Mary Carla Babb, Stephanie Brennan, Phillip Strach, Alyssa Riggins, John Branch, Thomas Farr, Katherine McKnight and Mark Braden for defendants; Abraham Rubert-Schewel, Chris Lamar, Orion de Nevers, William McKinney, Jonathan Klett, Sara Sykes, Christine Sun, Ranjana Natarajan, Edwin Speas, Caroline Mackie, Ryan Park, James Doggett, Zachary Ezor, Nathan Huff, Jared Burtner, Kathleen Roblez, Caitlin Swain, Daryl Atkinson, Ashley Mitchell, Aviance Brown, Irving Joyner and Caroline Mackie for amici curiae. 2022-NCSC-17
N.C. COURT OF APPEALS
Workers’ Compensation Medical Evidence – Traumatic Brain Injury – Attendant Care – Discovery Sanctions While working for defendant, plaintiff suffered a 25-foot fall through an attic floor and onto a stairway. Plaintiff’s doctor wrote a letter stating that plaintiff “has incomplete ... tetraplegia due to a 25 foot fall through an attic … He has also incurred a traumatic brain injury with loss of consciousness and approximately 2 days of post-traumatic amnesia.” It appears the Industrial Commission declined to consider this letter on the issue of causation of plaintiff’s traumatic brain injury for two improper reasons: (1) the doctor was not deposed and (2) the doctor did not state his opinion on causation to a reasonable degree of medical certainty. Plaintiff was required to present expert opinion evidence, not neces-
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sarily in the form of testimony, and this court has held that documentary evidence may be sufficient to support a finding of causation. Furthermore, a doctor is not required to testify to a reasonable degree of medical certainty. All that is required is that it is “likely” that the workplace accident caused plaintiff’s injury. We reverse the Commission’s determination that plaintiff’s traumatic brain injury was not compensable, and we remand for further findings and conclusions applying the correct standards. We affirm the Commission with respect to attendant care benefits and the imposition of discovery sanctions. Since the Commission received competent evidence that plaintiff required attendant care, and since the issue of the rate of compensation remained in dispute, the Commission did not abuse its discretion in permitting the parties to request further hearing pursuant to Workers’ Compensation Rule 614, which will allow plaintiff’s wife to file a motion to intervene. Even though defendants argue plaintiff already had in his possession the training materials he sought in discovery, since the deputy commissioner granted plaintiff’s motion to
compel; the corresponding order required defendants to fully respond to plaintiff’s discovery requests, which included “training courses and ratings or evaluations” provided to plaintiff; and defendants failed to comply with the deputy commissioner’s order, the Commission did not err in sanctioning defendants. Reversed and remanded in part; affirmed in part. Mahone v. Home Fix Custom Remodeling (Lawyers Weekly No. 011-032-22, 22 pp.) (John Arrowood, J.) Appealed from the Industrial Commission. Neal Camak and Michael Bertics for plaintiff; Steven Bader and Jerri Simmons for defendants. 2022-NCCOA-93
Real Property Development Plan – DOT Condemnation – Apportionment – Consolidation Motion After a developer had completed one of two planned condominium buildings but before it began to build the second, the N.C. Department of Transportation condemned part of the development property for the construction of Raleigh’s Union Sta-
tion. The proceeds from the DOT settlement must be divided between the developer and the phase-one condominium owners’ association, and these parties’ claims to the settlement proceeds involve appraisers’ opinions of value. A jury should be allowed to determine the credibility of each appraiser and examine their opinions of value. We reverse the trial court’s summary judgment order apportioning the settlement proceeds and remand for further proceedings. We affirm the trial court’s denial of the association’s motion to consolidate this action with the DOT condemnation action. Although the cases share a common nucleus of basic facts and common legal issues, the issues asserted herein can be fully litigated and resolved, while the distribution of the settlement funds from the DOT action can be completed following final judgments herein. The association cannot show injury or prejudice arising out of the trial court’s denial of its motion to consolidate. Department of Transportation v. Bloomsbury Estates, LLC (Lawyers Weekly No. 011-033-22, 14 pp.) (John Tyson, J.) Appealed from Wake County Superior Court (Vinston Rozier, J.) Jay Ferguson for appellee;
Keith Black and Harmony Taylor for appellant. 2022-NCCOA-91
Tort/Negligence Medical Malpractice – Statute of Limitations – First Impression – Foreign Object G.S. § 1-15(c) extends the statute of limitations to 10 years when “a foreign object, which has no therapeutic or diagnostic purpose or effect [has] been left in the body…” Even though plaintiff’s expert modified his testimony to question the therapeutic effect of leaving a Gore-Tex barrier in place for more than eight weeks, he agreed that the barrier had a therapeutic purpose when it was implanted. Accordingly, the defendant-doctor’s leaving the Gore-Tex barrier in plaintiff’s body— for the purpose of preventing adhesion formation at the surgical incision site—does not fall within the statutory language which would extend the statute of limitations. We affirm summary judgment for defendants.
Facts
In October 2007, the defendantphysician performed surgery on plain-
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18 / OPINION DIGESTS tiff to remove a large uterine fibroid. During surgery, defendant discovered advanced endometriosis and removed many of the endometrial adhesions. Defendant implanted a Gore-Tex adhesion barrier at the site where the fibroid was removed, with the intent that it remain in place permanently, to prevent adhesion formation at the incision site. The parties disagree about defendant’s communication to plaintiff about the need for further treatment. Plaintiff discontinued her treatment with defendant. In February 2017, a different surgeon operated on plaintiff, drained a pelvic mass and removed the GoreTex implant. On 21 September 2017, plaintiff filed suit, claiming medical malpractice and res ipsa loquitor. She alleged the Gore-Tex barrier caused her infertility. The trial court granted summary judgment for defendant.
Fraudulent Concealment
Although the parties dispute whether defendant told plaintiff about the Gore-Tex barrier, defendant’s operative notes reflect the placement of the barrier, and his post-operative record provides the serial, lot and model number of the Gore-Tex barrier that was implanted during plaintiff’s surgery. Plaintiff’s evidence does not support her argument that defendant concealed that the barrier needed to be removed after eight weeks. She presented no evidence to show that it was defendant’s intention to remove the barrier; in fact, he testified that he implanted the barrier with the intention that it remain in plaintiff’s body permanently. The parties dispute whether defendant told plaintiff about the need for further treatments. Even if defendant made a false statement or concealed a material fact, plaintiff has not produced any evidence that the statement was reasonably calculated to deceive or that defendant made the statement with intent to deceive. Because plaintiff’s suit was not filed until more than nine years after defendant’s last act, plaintiff’s claim for breach of fiduciary duty is necessarily barred unless it rises to the level of constructive fraud. A claim of constructive fraud requires a showing of a benefit to defendant. Plaintiff’s only argument that defendant benefitted from his alleged breach of duty is that plaintiff allowed him to perform the surgery on her. However, benefit alleged by a plaintiff must be more than a continued relationship with the plaintiff; further, defendant testified that there were no factors about plaintiff’s case or procedure that would enhance his reputation or give him any possible benefit. Plaintiff failed to create a prima facie case of fraudulent concealment.
Res Ipsa Loquitor
Plaintiff’s procedure involved the surgical placement of a Gore-Tex adhesion barrier, the proper use of which is outside the common knowledge, experience and sense of a layperson. Thus, without expert testimony, a layperson would lack a basis to determine whether plaintiff’s injury was one that would not normally occur in the absence of negligence or was an inherent risk of the procedure and use of this surgical bandage. A res ipsa loquitor claim is inappropriate in this case.
Medical Malpractice
G.S. § 1-15(c) sets a 10-year stat-
ute of limitations on a claim for medical malpractice “where damages are sought by reason of a foreign object, which has no therapeutic or diagnostic purpose or effect, [has] been left in the body…” There is no case law from North Carolina courts discussing or interpreting the meaning of therapeutic purpose or effect under this statute; therefore, this is an issue of first impression. We hold that the statute’s natural and ordinary meaning indicates that an object can have either a therapeutic purpose or therapeutic effect to be removed from the outer 10-year statute of limitations. Even if we accept an affidavit from plaintiff’s expert, which modifies his deposition testimony, the expert admits that Gore-Tex barriers serve a therapeutic purpose when properly used—he just disputes defendant’s decision to leave the barrier in plaintiff’s body permanently. Assuming that the Gore-Tex barrier should have been removed eight weeks after implantation, the barrier still had a therapeutic purpose on the date it was implanted: to prevent adhesion formation at the incision site. This therapeutic purpose does not disappear simply because the barrier was not timely removed. Even accepting that the barrier did not have a therapeutic effect in this case, the experts still agree that it at least initially served a therapeutic purpose. Because of the disjunctive “or” in the statute, the barrier need only have a therapeutic purpose or a therapeutic effect for the usual fouryear statute of limitations to apply. The trial court correctly concluded that the four-year statute of limitations applies as a matter of law. Affirmed. Bryant v. Wake Forest University Baptist Medical Center (Lawyers Weekly No. 011-034-22, 23 pp.) (Darren Jackson, J.) Appealed from Forsyth County Superior Court (Eric Morgan, J.) Harvey Kennedy and Harold Kennedy for plaintiff; Tamura Coffey, Elizabeth Horton, Peyton Pawlik, Scot Stevenson, John Kocher and Christopher Hood for defendants. 2022-NCCOA-89
Domestic Relations Parent & Child – DVPO – Text Messages Even though the parties’ daughter reached the age of majority before the domestic violence protective order was entered in this case, since she was only 17 when the plaintiff-mother filed this action, the trial court had jurisdiction to act on the motion under G.S. § 50B2(a) and to enter the DVPO. However, where (1) the motion was based on the defendant-father sending texts saying he could not pay for the daughter’s car or college education, (2) the daughter’s texted replies were flippant, and (3) she testified that the texts made her feel “anxious” and “upset,” the record contains no evidence that the daughter was tormented, terrorized or terrified by defendant’s text messages to her. We vacate the DVPO for lack of competent evidence of domestic violence. Walker-Snyder v. Snyder (Lawyers Weekly No. 011-035-22, 9 pp.) (Jefferson Griffin, J.) Appealed from Mecklenburg County District Court (Tracy Hewett, J.) No brief filed for plaintiff; Matthew Arnold and Ashley Crowder for defendant. 2022-NCCOA-97
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Real Property Taxation – Service of Process – Disabled Taxpayer – Redemption – Good Faith Purchaser The plaintiff-county unsuccessfully tried several methods to serve a delinquent taxpayer with process before serving her by publication; however, the county was on notice that the taxpayer was wheelchair-bound and legally blind and that the best way to contact her was via mail. Although it had the taxpayer’s email address, the county did not attempt to contact the taxpayer via email to give her notice of her delinquent property taxes. We reverse the trial court’s ruling that the county’s service under N.C. R. Civ. P. 4 was sufficient. We affirm the trial court’s refusal to set aside the commissioner’s deed, its ruling that the taxpayer had exercised her right of redemption, and its conclusion that the taxpayer is entitled to restitution under G.S. § 1-108. Jacob Belk was the successful bidder at the foreclosure sale. Prior to accepting the commissioner’s deed, Belk went to the property, and the taxpayer told him she had paid the outstanding taxes. Nevertheless, Belk reasonably relied on the county’s assertion and the certificate of taxes due when he purchased the property. The trial court did not err by concluding that Belk was a good faith purchaser. The taxpayer called the county tax office, inquired about the amount owed, and made a payment of $21,428.25. This amount was deducted from the taxpayer’s bank account four days before the foreclosure sale. We are not persuaded by the county’s assertion that – because the payment was later refunded to the taxpayer – she did not redeem the property. There was competent evidence to support the trial court’s finding that the taxpayer redeemed the property. G.S. § 105-361 says, “An oral statement made by the tax collector as to the amount of taxes ... due on any real or personal property shall bind neither the tax collector nor the taxing unit.” However, the county did not argue before the trial court that the taxpayer was not permitted to rely on the oral statement of the tax collector’s authorized representative. The law does not permit parties to swap horses between courts in order to get a better mount. Because the taxpayer properly redeemed the property that was subsequently sold at a foreclosure sale, she is entitled to seek restitution. Therefore, the trial court did not err in concluding the taxpayer was entitled to restitution. Affirmed in part, reversed in part and remanded. County of Mecklenburg v. Ryan (Lawyers Weekly No. 011-03622, 22 pp.) (April Wood, J.) (Hunter Murphy, J., concurring in the result only without separate opinion) Appealed from Mecklenburg County District Court (Paulina Havelka, J.) Ashley Lamm for plaintiff; Harrison Lord for defendant; Amy Hunt and Robert McNeill for third-party appellee. 2022-NCCOA-90
Domestic Relations Parenting Coordinator Order – Sua Sponte Modification The original parenting coordinator order in this case failed to comply with G.S. § 50-92, as it did not
set out the “issues to be addressed nor the authority of the Parenting Coordinator…” The trial court made binding findings of fact that this is a high-conflict case and that the issues in dispute are “final decision making, specifically, how to consult with each other in good faith, school assignment, providing after school care, and other parenting and communication issues.” We find that the trial court had good cause to modify the parenting coordinator appointment on its own motion under G.S. § 50-99. The trial court did not abuse its discretion by issuing the amended parenting coordinator order. Medina v. Ingram de Medina (Lawyers Weekly No. 011-037-22, 14 pp.) (April Wood, J.) Appealed from Mecklenburg County District Court (Tracy Hewett, J.) Jennifer Fleet for plaintiff; No brief filed for defendant. 2022-NCCOA-94
Criminal Practice Voluntary Intoxication – Intent – Handgun – Chain of Custody Before he shot victim Smith, defendant had been drinking for more than six hours and had acted recklessly in displaying a gun in front of a child; after the shooting, he went to a friend’s house and honked the horn of his car for 30 minutes. However, victim Plair testified that defendant and Smith argued before defendant shot Smith. Furthermore, defendant had the wherewithal to flee the scene in his car and make it back to his friend’s house without getting into an accident. Finally, defendant told police that he shot Smith in self-defense and that “He come at me; he got what he got.” This indicates that defendant appreciated the nature of his actions after the incident. Therefore, although there was evidence that defendant was very intoxicated and acted recklessly some hours before the shooting, there was not substantial evidence that defendant was intoxicated to the point he could not control himself and could not form the intent—based on premeditation or deliberation—to kill Smith at the time of the shooting. The trial court did not err in declining to instruct the jury as to defendant’s voluntary intoxication. We find no prejudicial error in defendant’s convictions of assault with a deadly weapon with intent to kill, attempted first-degree murder, and first-degree murder. The state introduced evidence of defendant’s acquisition of a gun before it connected the gun to the shooting. The trial court overruled defendant’s objection, subject to corroborating evidence the prosecution said it would introduce later. Defendant said he would likely still challenge the chain of custody at a later point. Even if the trial court should have required the state to establish the handgun’s relevance to the charges prior to admitting the handgun into evidence, the trial court did not err in admitting the handgun because the state presented later evidence connecting the handgun to the case. Defendant never actually objected on chain-of-custody grounds. Assuming this issue was preserved for appeal and the trial court erred in admitting the handgun without the state establishing a chain of custody, such error did not prejudice defendant in light of the other evidence. The state presented evidence that Plair heard defendant and Smith argue, heard gunshots and ran, and
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saw defendant drive away from the scene. The state also presented evidence that police recovered a handgun from defendant’s brother, shell casings fired from that gun were found at the scene, and Smith’s blood was on the handgun. Moreover, the state presented testimony that defendant told police that “it was self-defense” and “He come at me; he got what he got.” In light of such overwhelming evidence of defendant’s guilt, there was no reasonable possibility the jury would have reached different verdicts absent the handgun’s admission. Therefore, the trial court did not commit reversible error by admitting the handgun. No prejudicial error. State v. Green (Lawyers Weekly No. 011-038-22, 16 pp.) (Toby Hampson, J.) Appealed from Richmond County Superior Court (Stephan Futrell, J.) Robert Montgomery for the state; Jarvis John Edgerton for defendant. 2022-NCCOA-95
Criminal Practice Constitutional – Right to Silence – State’s Evidence – Harmless Error Despite defendant’s assertion that she would rely on the affirmative defense of duress, the state should not have introduced evidence of her silence at the time of her arrest. Nevertheless, the trial court’s admission of a single reference to defendant’s silence was harmless beyond a reasonable doubt given the other evidence of her guilt. We find no reversible error in defendant’s convictions for trafficking in methamphetamine and simple possession of marijuana. Defendant testified that Joshua Warren was the owner of the drugs and he had threatened her in order to convince her to possess and hold onto the drugs. However, after Warren exited their vehicle during the traffic stop, he did not return, defendant had the chance to but did not remove the methamphetamine from her body, and defendant showed no signs of duress. Defendant testified and admitted she knew what substances the bags contained when she placed them inside her bra and admitted to possessing both bags of illegal drugs on her person. Defendant, Shanna Shuler, also acknowledged her purpose of being with Warren was “to get high.” Defendant failed to contest the quantity of methamphetamine she possessed. After defendant’s arrest, officers searched the vehicle and obtained a set of digital scales from the vehicle’s console, within the driver’s reach. Beside the scale was a small handbag labeled, “Shanna Shuler, insane outlaw.” In addition, at trial, Warren denied threatening defendant and pled the Fifth Amendment when asked if he had tossed the bags of drugs into defendant’s lap. Substantial and overwhelming evidence was presented from which the jury could find beyond a reasonable doubt that defendant knowingly possessed both the small bag of marijuana and the approximately 40.39 grams of methamphetamine. The impact of the sole reference to defendant’s silence was minimal. The error in its admission was harmless beyond a reasonable doubt. State v. Shuler (Lawyers Weekly No. 011-039-22, 10 pp.) (John Tyson, J.) Appealed from Haywood County Superior Court (William Coward, J.) On remand from the N.C. Supreme
Court. Brent Kiziah for the state; Michael Spivey for defendant. 2022-NCCOA-96
Civil Practice Personal Jurisdiction – Specific Jurisdiction – Florida Horse Sale This dispute involves a buyer who traveled to Florida, negotiated to buy a horse in Florida, and then took possession of the horse in Florida before bringing it to North Carolina. The sellers later arranged for another horse to be transported from Virginia to Maryland so that the buyer could travel there and view the animal. The sellers, who are Florida residents and who did not reach out to our state in these business dealings, could not reasonably have anticipated being haled into court in North Carolina over claims concerning either of these horses. We reverse the trial court’s order and remand this case for the trial court to dismiss plaintiff’s claims against these Florida defendants for lack of personal jurisdiction. Dow-Rein v. Sarle (Lawyers Weekly No. 011-040-22, 11 pp.) (Richard Dietz, J.) Appealed from Wake County Superior Court (Keith Gregory, J.) Amie Sivon, Dorothy Bass Burch, John Walker and Sandra Mitterling Schilder for plaintiff; David Earley and Walter Brock for defendants. 2022-NCCOA-92a
N.C. BUSINESS COURT
Contract Expert Testimony – Truss Failure – Engineers’ Expertise When cross-examining plaintiff’s experts at trial, other parties may attack any lack of education or experience with respect to metal plate connected (MPC) floor trusses in particular; however, the experts’ extensive education and experience as civil engineers qualify them to testify about trusses, truss systems, and truss defects; the reasonableness of the repairs to the trusses and the design of the repair process; the design loads specified and used in the construction project in question (the Project), the code compliance and project suitability of those design loads, and any alleged overloading during construction of the project; and the likely or possible causes of the truss failure experienced at the Project. The motion to exclude plaintiff’s experts’ testimony is granted as to certain agreed-upon issues but is otherwise denied.
Qualification
To begin, expert Milan Vatovec’s dissertation in Structural Engineering and Wood Science and Engineering focused on MPC trusses. Moreover, he has published 6 articles on MPC trusses. All three of plaintiff’s experts have extensive experience in the design of structural systems and the investigation of failed structures, and each has experience designing wood structures, investigating the failures of wood structures, or both. Although the moving parties argue that this expertise is insufficient to permit the experts to express truss-related opinions under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),
the court disagrees. Not only is the central fact of this litigation the failure of a structural system—the Project’s trusses—but it also cannot be reasonably disputed that trusses and truss systems are foundational concepts in structural engineering that are well-known to civil engineers. The court concludes, in the exercise of its discretion, that while the moving parties may certainly attack the experts’ truss- and MPC-truss-related experience at trial, those experts’ knowledge, experience, and training in civil engineering generally—particularly when combined with their wood, truss, and MPC truss knowledge, experience, and training specifically—qualify them to opine to the jury about the matters set out above.
Methodology
The fact that plaintiff’s experts cannot tie the failure of a specific truss to a specific cause and instead opine more broadly that a set of trusses with a specific observed type of defect were likely caused by a particular process or action—and not caused by a design or other process for which plaintiff was responsible—does not render the proffered opinions inadmissible in this breach of contract action. The experts’ methods—observation, combined with training and experience, document and literature review, and performing calculations based on observed and compiled data—when subject to verification, are appropriate and reliable methodologies under Daubert. A lack of testing or a failure to use specific types of testing only goes to the weight of the testimony and is not grounds for exclusion when an expert reaches an opinion through other reliable methods. The court concludes, in the exercise of its discretion, that the experts’ extensive investigation, documentation, and review of photographs and other information concerning over 60,000 trusses at the Project, combined with their exhaustive review of relevant published literature and other documents, provides an ample basis on which the experts may apply their knowledge, training, and experience to render the causation opinions they intend to offer at trial. Those methods and conclusions, both as expressed in the experts’ report and at their depositions, are subject to review and verification as well as challenge on crossexamination at trial. As such, the court concludes that plaintiff’s experts have applied reliable principles and methods to sufficient facts or data to permit the admissibility of their causation opinions at trial under Daubert. Based on the experts’ acknowledgements at their depositions and plaintiff’s statements in its briefing and at the hearing, however, the experts will not be permitted to render opinions and testimony identifying that a defect in a specific truss was actually caused by a specific act or process. Motion granted in part, denied in part. Crescent University City Venture, LLC v. AP Atlantic, Inc. (Lawyers Weekly No. 020-006-22, 40 pp.) (Louis Bledsoe, C.J.) Kiran Mehta, William Farley and Victoria Alvarez for plaintiff; William Robinson, Dorothy Gooding, Greg Ahlum, Parker Moore, Robert McCune and Alan Belcher for defendant; Robert Gunst, Brian Wolfe, Jeffrey MacHarg, Martyn Hill, Kent Pagel, James Flynn, David Levy and Matthew Lancaster for third-party defendants. 2022 NCBC 6
N.C. COURT OF APPEALS, UNPUBLISHED
Real Property Sale Contract – Disclosure Misrepresentation – No Breach Although the defendant-sellers made a misrepresentation in their Residential Property Owners’ Association Disclosure Statement, since (1) the plaintiff-buyers acknowledged that the Disclosure Statement was not a warranty by the sellers; (2) the contract for the sale of the home—executed three months after defendants signed the Disclosure Statement— stated that it “[contained] the entire agreement of the parties and there [were] no representations, inducements or other provisions other than those expressed herein”; and (3) the sellers offered no warranty, instead selling the property “in its current condition, then we are bound by Cummings v. Carroll, 270 N.C. App. 204, 841 S.E.2d 555, disc. rev. allowed, 376 N.C. 525, 851 S.E.2d 42 (2020), to hold that defendants’ misrepresentation in the Disclosure Statement cannot support plaintiffs’ breach of contract claim. We reverse judgment for plaintiffs on their breach of contract claim. Plaintiffs assert that defendants had statutory duties to update the Disclosure Statement under certain circumstances. But plaintiffs did not allege that the Disclosure Statement and sale contract were merged as contemporaneously executed documents pursuant to these statutory duties in their complaint, nor did they make such a legal argument at the bench trial. Furthermore, plaintiffs offer no published North Carolina authority suggesting that these statutory duties suffice to render documents signed three months apart “contemporaneous” under our law. Cummings prohibits us from reaching such a conclusion, as the sellers there were subject to the same statutory obligations that failed to give rise to liability for breach of contract in that case. Plaintiffs also argue that the trial court “found that [defendants] were willfully or intentionally dishonest in their dealings with [plaintiffs],” and we may therefore affirm the trial court’s judgment on the basis that defendants breached the implied covenants of good faith and fair dealing. But the trial court found only that “Defendants knew or should have known of these and other issues with the home but failed to disclose said information to the Plaintiffs” and that “Defendants were untruthful in their disclosures to the Plaintiffs.” Neither finding suggests that defendants acted with willful intent rather than by unintentional, forgetful omission. Indeed, the trial court concluded that plaintiffs had failed to prove their claim for fraud, which required them to show that defendants’ misrepresentations were made with knowledge of their falsity and with intent to deceive. Because the trial court did not make the findings plaintiffs contend amount to a breach of the implied warranties of good faith and fair dealing—and Cummings otherwise precludes plaintiffs’ breach of contract claim—we reverse the trial court’s judgment awarding damages on this claim. Kandaras v. Jones (Lawyers Weekly No. 012-420-21, 10 pp.) (Lucy Inman, J.) Appealed from Alleghany
20 / OPINION DIGESTS County District Court (Jeanie Houston, J.) Anné Wright and John Benjamin Reeves for plaintiffs; Jill Dawkins for defendants. 2021-NCCOA-675
Civil Practice Interlocutory Appeals – Different Defendants & Different Facts – Real Property Sale The plaintiff-homebuyers’ claims against the defendant-sellers and the defendant-realty agents have been dismissed, but their claims against the defendant-inspector remain pending. Since the claims against the inspector are based on negligence, while the claims against the sellers and agents rested on misrepresentation, there is not a risk of inconsistent verdicts in the absence of an immediate appeal of the trial court’s grant of summary judgment in favor of the sellers and the agents. Plaintiffs’ appeal is dismissed. Monti v. Adelstein (Lawyers Weekly No. 012-421-21, 8 pp.) (Toby Hampson, J.) Appealed from Wake County Superior Court (Craig Croom, J.) Pamela Vesper and Adam Stallings for plaintiffs; Jeffrey Doyle and Anthony Penry for defendants. 2021-NCCOA-676
Civil Practice Interlocutory Appeals – Pending Counterclaim – Real Property – Slander of Title The trial court dismissed plaintiff’s complaint, which alleged claims based on an alleged lack of notice of foreclosure, and dissolved a related lis pendens. However, since defendant’s counterclaim for slander of title remains pending, plaintiff’s appeal is interlocutory. Because plaintiff has offered no argument asserting the trial court’s order affected a substantial right, we dismiss plaintiff’s appeal. Neal v. Prestwick Homeowners Association of Union County, Inc. (Lawyers Weekly No. 012-42221, 5 pp.) (Lucy Inman, J.) Appealed from Union County Superior Court (Jeffery Carpenter, J.) Pamela Hunter for plaintiff; Steven Bader, Patrick Flanagan and Virginia Wooten for defendant. 2021-NCCOA-677
Domestic Relations Parent & Child – Custody Order – Joint Custody – Decision-making Authority Where the trial court found that the parties’ children have “significant extracurricular activities” but that the plaintiff-father refused to transport the children to their practices and events that occurred during his visitation, the trial court could grant final decision-making authority surrounding the children’s extracurricular activities to the defendant-mother. We affirm the trial court’s custody order. While joint custody is encouraged, it is not absolutely required. Moreover, a trial court has discretion to grant joint custody yet split the decision-making authority. Given (1) plaintiff’s admission that he has recorded every exchange of the children with defendant, (2) that plaintiff’s acts of videotaping were a significant source of contention between the parties, and (3) that at least one child told her counselor that
she wanted plaintiff “to stop recording their interactions,” the trial court did not abuse its discretion when it prohibited the parties from recording each other and barred them from recording the children, except at extracurricular events “for commemoration purposes.” The trial court’s admonition that the parties “follow the recommendations” of the children’s therapist does not delegate power to the therapist to control the parties’ visitation rights. Nesbeth v. Nesbeth (Lawyers Weekly No. 012-423-21, 30 pp.) (April Wood, J.) Appealed from Wake County District Court (Christine Walczyk, J.) Steve Mansbery for plaintiff; Jillian Mack for defendant. 2021-NCCOA-678
Civil Practice Interlocutory Appeals – Domestic Relations – Divorce – Subject Matter Jurisdiction The defendant-wife appeals the trial court’s denial of her motion to dismiss this divorce action for lack of subject matter jurisdiction. Plaintiff-husband presented significant proof—his residential and mailing addresses, driver’s license, license plate, payment of state taxes, the location of his doctors, and his voting place— that he is domiciled in North Carolina, giving our courts subject matter jurisdiction over this divorce action. Although defendant contends that the divorce could also proceed in Maryland because she is a Maryland resident, there appears to be no litigation pending in Maryland regarding the parties’ divorce. The wife cites no case law supporting the idea that subject matter jurisdiction does not exist in a state where one spouse is domiciled and files for divorce, just because jurisdiction may have existed in another state where the other spouse is domiciled had divorce proceedings been initiated in that state. The wife’s argument that her appeal affects a substantial right in the avoidance of differing verdicts in two separate trials is without merit. Appeal dismissed. Preston v. Preston (Lawyers Weekly No. 012-424-21, 6 pp.) (Jeffery Carpenter, J.) Appealed from Mecklenburg County District Court (Karen McCallum, J.) Kyle LeBlanc for plaintiff; Jennifer Fleet for defendant. 2021-NCCOA-679
Domestic Relations Equitable Distribution – Separation Date – Stock Grant – Delayed Vesting Defendant took a job with Corning Inc. before the parties separated. His offer letter said, “Given the compensation you will forfeit as a result of accepting Corning’s Offer ... You will receive a grant of 7,500 shares of Corning Incorporated restricted stock.” The trial court could find that, although the Corning shares did not vest until after the parties separated, the stock grant was the result of defendant’s efforts during the marriage. We affirm the trial court’s equitable distribution order. During the parties’ marriage, defendant changed jobs frequently. He would stay in hotels or campgrounds near his new job until plaintiff could move their household to join him. On 17 April 2017, before defendant left for New York to start work with Corning, defendant told plaintiff that
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he wanted to separate. Nevertheless, defendant followed the parties’ usual practice of staying in hotels or campgrounds and coming home most weekends until 16 July 2017, which was the last time defendant stayed in the marital home. The trial court did not err in determining that the parties separated on 16 July 2017. The parties’ equitable distribution order was entered before the last third of the Corning stock vested. Accordingly, the trial court did not err by failing to classify this portion of the stock as divisible property. G.S. § 50-20.1 sets out the mathematical formula for distributing pension, retirement or deferred compensation. In Ubertaccio v. Ubertaccio, 359 N.C. 175, 604 S.E.2d 912 (2004), our Supreme Court adopted the concurring opinion of Judge Levinson. As a result, G.S. § 50-20.1 did not apply to the classification and distribution of the stock grants in Ubertaccio because a stock grant does not fall into the judicially construction definition of deferred compensation. Like the stock grant in Ubertaccio, defendant’s stock grant did not involve an option to purchase stock at a set price, but rather a right to receive a set number of shares upon remaining employed by Corning for three years. Thus, defendant’s stock grant is not a type of deferred compensation contemplated by § 50-20.1. Therefore, the trial court was not required to apply the valuation method in § 50-20.1. Affirmed. Salvadore v. Salvadore (Lawyers Weekly No. 012-425-21, 28 pp.) (Toby Hampson, J.) Appealed from Mecklenburg County District Court (Tracy Hewett, J.) Nicholas Cushing and Brett Holladay for plaintiff; Sabrina Blain for defendant. 2021-NCCOA-680
Criminal Practice Assault & First-Degree Kidnapping – Jury Instructions – Double Jeopardy Where the state’s theory of the case was that defendant confined, restrained or removed the victim for the purpose of murdering her, the trial court was not required to instruct the jury that the confinement, restraint or removal element of the kidnapping charge must be separate from that inherent in the other charged offenses of assault or rape. We find no error in defendant’s convictions for assault with a deadly weapon with intent to kill inflicting serious injury and first-degree kidnapping. When the jury asked whether the elements of kidnapping required “that the first-degree murder took place, or that there was only an intent to commit first-degree murder,” the trial court correctly instructed the jury that it was “not necessary that the felony be committed, or the injury actually occur. Only that such was the purpose of the defendant.” Defendant was convicted of and sentenced for first-degree kidnapping on the theory that the victim was seriously injured. He was also convicted of and sentenced for assault with a deadly weapon with intent to kill inflicting serious injury. Nevertheless, there was no violation of the Double Jeopardy Clause. Assault with a deadly weapon with intent to kill inflicting serious injury has multiple additional elements beyond the “serious injury” necessary to elevate the kidnapping charge and is not fully encompassed within the el-
evated kidnapping charge. Punishment for both assault causing serious injury and first-degree kidnapping is appropriate under our statutory scheme. Defendant was not improperly punished twice for the same conduct, but rather received two punishments for two distinct sets of actions—one for the confinement, restraint, or removal of the victim and the second for assaulting her with a deadly weapon by shooting her. Punishment for both did not implicate double jeopardy concerns and was permissible under the applicable statutory scheme, despite the fact that both offenses required the state to prove serious injury to the victim. In any event, these two convictions did not involve the identical serious injuries. The assault charge was based on the loss of the victim’s left eye, but the state’s evidence further indicated that she also suffered extensive mental trauma from the shooting, that she required multiple surgeries over several years to remove the bullet from her neck and reconstruct her face, and that she had facial scarring as a result of the shooting. Thus, there were multiple serious injuries supporting the firstdegree kidnapping offense, and defendant did not receive two punishments solely for inflicting the same serious injury to the victim. No error. State v. Henry (Lawyers Weekly No. 012-426-21, 15 pp.) (Richard Dietz, J.) Appealed from Mecklenburg County Superior Court (Stephen Futrell, J.) Joseph Finarelli for the state; Anne Gomez for defendant. 2021-NCCOA-683
Criminal Practice Sex Offender – Failure to Report a New Address – Anders Brief The state showed that, on 6 June 2017, defendant reported a change of address to “West Motel Room 2” at 691 Andrews Road; however, hotel records showed defendant staying there only through 6 June 2017, and defendant failed to report a subsequent change of address. Without objection, the trial court instructed the jury that the defendant willfully changed the defendant’s address and failed to provide written notice of the defendant’s new address.” The adverb “willfully” modified the verb “changed” rather than the verb “failed.” Although the jury instruction did not entirely conform to the statutory language of the offense, G.S. § 14-208.1, nothing in the record indicates the error was prejudicial to defendant or that the misplaced modifier had a probable impact on the jury’s finding of guilt. We find no prejudicial error in defendant’s conviction for failing to report a new address as a sex offender. State v. Parker (Lawyers Weekly No. 012-427-21, 8 pp.) (Jeffery Carpenter, J.) Appealed from Cherokee County Superior Court (William Coward, J.) Bryan Nichols for the state; Sterling Rozear for defendant. 2021-NCCOA-685
Criminal Practice Batson Challenge – Comparative Juror Analysis – Insufficient Record Because defendant contended that a comparative juror analysis revealed racial bias in the state’s decision to peremptorily strike the only black person on the jury venire despite ac-
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cepting other jurors with criminal histories, State v. Hobbs, 374 N.C. 345, 841 S.E.2d 492 (2020), and State v. Alexander, 274 N.C. App. 31, 851 S.E.2d 411 (2020)—both decided after the trial court’s ruling in this case— require the trial court to explain how it conducted its comparative juror analysis between the excused black juror and the other jurors defendant identified. The trial court simply stated, “I do not find the State has exercised a peremptory challenge based upon race or that race was a factor based upon the other considerations that the State has articulated. So the motion is respectfully denied.” In light of Hobbs and Alexander, we remand for further findings. State v. Brown (Lawyers Weekly No. 012-420-21, 8 pp.) (Jeffery Carpenter, J.) Appealed from Forsyth County Superior Court (David Hall, J.) Daniel O’Brien and Robert Montgomery for plaintiff; James Glover and Ann Petersen for defendant. 2021-NCCOA-681
Criminal Practice Closing Argument – References to Victims’ Race The state’s evidence showed that, on a Thanksgiving morning, defendant and his accomplices engaged in a string of armed robberies of Hispanic men. During closing argument, the prosecutor appropriately acknowledged the victims’ common race as a factor in the armed robberies. The trial court did not err when by failing to intervene ex mero motu. We find no error in defendant’s convictions for felony fleeing to elude arrest, possession of a stolen vehicle, three counts of conspiracy to commit robbery with a firearm, three counts of robbery with a firearm, and four counts of attempted robbery with a firearm. The shared characteristics of the victims, including their race, were relevant to show whom defendant and his co-suspects targeted to rob. Defendant’s statement to police that “I was present when some amigos were robbed” demonstrates the probative value of the victims’ race to show a common plan or scheme in the series of robberies. The prosecutor’s argument urged jurors to infer that defendant chose his victims not because of his racial prejudice toward them but because they would be less likely to report the crimes or be believed or helped by the community. State v. Burch (Lawyers Weekly
No. 012-429-21, 10 pp.) (Lucy Inman, J.) (Jefferson Griffin, J., concurring in result only without separate opinion) Appealed from Mecklenburg County Superior Court (Donnie Hoover, J.) Rajeev Premakumar for the state; Kellie Mannette for defendant. 2021-NCCOA-682
Widenhouse for defendant. 2021-NCCOA-684
Criminal Practice
Where a prosecution witness (1) helped defendant cash the victim’s checks, (2) entered into a plea agreement with the state, and (3) was incarcerated for allegedly violating the terms of her probation before defendant’s trial, the trial court did not plainly err when it allowed the state to introduce evidence of the plea agreement or when it allowed the state to examine the truthfulness of the witness after her credibility was attacked. We find no error in defendant’s convictions of two counts of forgery, two counts of uttering forged paper, and attaining habitual felon status. However, as the state concedes, the trial court erred in calculating defendant’s prior record level and in entering a civil judgment for attorney’s fees without providing defendant with notice and an opportunity to be heard. We vacate the judgment and remand for hearing and resentencing. State v. Whisenant (Lawyers Weekly No. 012-431-21, 10 pp.) (John Tyson, J.) Appealed from Caldwell County Superior Court (James Morgan, J.) Jodi Regina for the state; Sandra Payne Hagood for defendant. 2021-NCCOA-686
Murder & Armed Robbery – Cell Phone Tower Data – Police Detective’s Testimony – Spectator’s Exclusion A police detective did not testify as an expert when he used data from an already-admitted evidentiary exhibit to explain where cellphones were when they were used on the night of the robbery and murder. We find no error in defendant’s convictions of first-degree murder and robbery with a dangerous weapon. The trial court initially sustained an objection to Detective Joyner’s testimony regarding the Cast Viz program he used to map the location of the calls, reasoning that the trial court did not “understand how [Cast Viz] works,” and that the state had not “met the Daubert Standard under Rule 702…” Defendant later objected to Detective Joyner’s testimony regarding the cell towers themselves, as well as cell phone data contained within State’s Exhibit 24 among others. The cell phone data included a legend used to interpret the data provided, which Detective Joyner relied on in his testimony. The transcript reflects that Detective Joyner’s testimony was limited to illustrating and interpreting information previously admitted into evidence, without objection from defendant. Contrary to defendant’s argument, Detective Joyner’s testimony did not require the use of “scientific, technical, or other specialized knowledge…” N.C. R. Evid. 702(a). The state raised an issue of a “high-ranking member of the Blood gang” being present in the courtroom, potentially to intimidate a witness. Although the trial court heard arguments and defense counsel said he would discourage the spectator from coming, the trial court never ruled on the matter, and the spectator did not return to the courtroom. Accordingly, the trial court did not actually exclude the spectator from the courtroom. State v. Joyner (Lawyers Weekly No. 012-430-21, 11 pp.) (John Arrowood, J.) Appealed from Nash County Superior Court (James Hardin, J.) Kenzie Rakes for the state; Gordon
Criminal Practice Prosecution Witness – Attack on Credibility – Plea Agreement
Labor & Employment Tort/Negligence – Wrongful Discharge – Employer’s Internal Policy Although the plaintiff-nurse alleges that the defendant-hospital violated the Occupational Safety and Health Act of North Carolina when he was assigned as the only registered nurse in the hospital’s emergency department, OSHANC does not provide for any staffing requirements within the workplace. Plaintiff has not identified any specific North Carolina public policy that was violated when the hospital terminated him, ostensibly for complaining about the staffing decision—not to a public official but to the hospital’s officers. Since North Carolina public policy did not require the hospital to follow a minimum staffing policy, plaintiff has failed to identify a specific North Carolina public policy that was violated by the hospital when it fired him. We affirm the trial court’s grant of
the hospital’s motion to dismiss. Stevenson v. ANC Highlands Cashiers Hospital, Inc. (Lawyers Weekly No. 012-432-21, 9 pp.) (Fred Gore, J.) Appealed from Macon County Superior Court (William Coward, J.) Alexander Kelly for plaintiff; Jonathan Yarbrough for defendant. 2021-NCCOA-687
Real Property Mortgages – Loan Assignment – Lack of Notice – Payoff & Satisfaction It was the plaintiff-lenders’ own negligence—their failure to notify the defendant-homeowners when the homeowners’ loan was assigned to plaintiffs—that led to the loan payoff being sent to the defendant-loan servicer instead of plaintiffs when the homeowners refinanced. Even if plaintiffs did not authorize the loan servicer to record a “Satisfaction of Mortgage,” plaintiffs are not entitled to a priority lien encumbering the homeowners’ property. We affirm summary judgment for the homeowners and their new lender.
Facts
Plaintiffs operated as warehouse lenders to fund residential home loans originated by defendant First Mortgage Company (FMC), which has defaulted in this case. FMC made a construction and mortgage loan to the defendant-homeowners. The loan was secured by a duly recorded deed of trust. The deed of trust said that, if the homeowners’ loan was sold, the homeowners were to be given written notice. The homeowners’ promissory note said that any notice to the homeowners would be delivered or mailed to them. Pursuant to certain cross-collateralization agreements, FMC assigned all rights and interests in the homeowners’ loan to plaintiffs. The crosscollateralization agreements required plaintiffs to notify borrowers of the assignment. Although plaintiffs recorded the assignment of the homeowners’ loan in the register of deeds, plaintiffs do not claim that they provided any other notice to the homeowners. The homeowners refinanced, and the payoff for their original loan was sent to FMC. FMC recorded a satisfaction of mortgage. Plaintiffs contended that no one informed them of the refinance.
Analysis
Plaintiffs admitted that FMC was
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22 / OPINION DIGESTS the servicer of the homeowners’ loan at all times pertinent to this case. As servicer of the loan, FMC was authorized to receive payments of the loan on behalf of plaintiffs. Plaintiffs argue that they did not authorize FMC to file the Satisfaction of Mortgage, and that therefore they are entitled to a priority lien encumbering the property. Plaintiffs cite Union Central Life Insurance Co. v. Cates, 193 N.C. 456, 137 S.E. 324 (1927), for the proposition that the discharge of a perfected mortgage upon public record by the act of an unauthorized third party entitles the mortgagee to restoration of its status as a priority lienholder over an innocent purchaser for value. However, the Supreme Court in Union Central went on to say, “If, however, the owner of the mortgage is responsible for the mortgage being released of record, as when the entry of satisfaction is made possible by his own neglect ... he will not be permitted to establish his lien to the detriment of one who has innocently dealt with the property in the belief that the mortgage was satisfied.” Assuming arguendo that FMC was an unauthorized third party, plaintiffs’ own neglect would preclude a reinstatement of their lien priority. Plaintiffs were under a statutory duty to provide written notice to the homeowners that their loan had changed ownership. 15 U.S.C. § 1641(g). Plaintiffs failed to provide such notice. Plaintiffs’ breach of this statutory duty contributed to the homeowners sending payoff of the loan to FMC, which in turn enabled FMC to file the Satisfaction of Mortgage. Since the homeowners had in fact paid off their loan to an authorized agent of plaintiffs, the debt secured by the original deed of trust was extinguished. Although FMC may have breached its duty to remit this payment to plaintiffs, that question is outside the quiet title issue decided by summary judgment. The homeowners were entitled to a judgment in their favor to quiet title, subject to the refinancing lender’s deed of trust. Affirmed. American Southwest Mortgage Corp. v. Arnold (Lawyers Weekly No. 012-433-21, 11 pp.) (Jefferson Griffin, J.) Appealed from Mecklenburg County Superior Court (George Bell, J.) Louis Spencer for plaintiffs; Zipporah Basile Edwards for defendants. 2021-NCCOA-704
Civil Practice Subject Matter Jurisdiction – Husband’s Secreting of Marital Property After making the same allegations in the parties’ equitable distribution/ alimony action in district court, the plaintiff-wife filed suit against the defendant-husband in superior court, alleging that he had misappropriated the proceeds from the sale of the parties’ investment property. Regardless of the husband’s alleged motives, because the sale proceeds and the bank account into which the husband deposited them were created during the parties’ marriage, they both constitute marital property. Thus, the division and assignment of the sale proceeds and the husband’s personal account fall squarely within the district court’s jurisdiction. We affirm the superior court’s dismissal of the wife’s complaint for lack of subject matter jurisdiction. Furthermore, the domestic action has now been settled by way of a
consent order. This resolved not only the parties’ equitable distributions claims, but also the parties’ claims for alimony and any allegations set out therein. Accordingly, the superior court complaint has been rendered moot by the consent order. Hauser v. Idilbi (Lawyers Weekly No. 012-434-21, 8 pp.) (John Arrowood, J.) Appealed from Mecklenburg County Superior Court (Lisa Bell, J.) Tyler Peacock and Jared Gardner for plaintiff; Troy Shelton and Matthew Nis Leerberg for defendant. 2021-NCCOA-708
Contract Mammogram Service – Accreditation Loss – Failure to Allege Breach According to plaintiff’s complaint, after the defendant-radiology practice lost its accreditation to perform mammograms, defendant sent letters to its patients informing them of the accreditation suspension and advising them (1) to consult with their referring physician at their own expense and (2) that it might be necessary to repeat mammograms taken between November 2017 and November 2019. On appeal, plaintiff asserts that she paid for accredited breast cancer screenings and did not receive them, yet the complaint alleges only that she “was not informed” whether her mammograms met accreditation standards or not. Thus, plaintiff failed to allege a breach of her implied contract with defendant. We affirm the trial court’s grant of defendant’s motion to dismiss. Plaintiff requested that any dismissal be without prejudice. The trial court took her request under advisement and considered it for 30 days before dismissing the complaint with prejudice. We cannot conclude that the trial court abused its discretion. Cram v. Raleigh Radiology, LLC (Lawyers Weekly No. 012-43521, 14 pp.) (Hunter Murphy, J.) Appealed from Wake County Superior Court (Michael O’Foghludha, J.) Stuart Paynter, David Larson and Sara Willingham for plaintiff; Jennifer Maldonado and David Fothergill for defendant. 2021-NCCOA-706
Contract Truck Scale Installation – Quote – Boilerplate Terms – Mutual Assent In December 2015, defendant quoted plaintiff a price to move plaintiff’s truck scale to a new location, to install the scale, and to calibrate it. The last few pages of the emailed quote included terms that, among other things, limited damages to the contract price. However, since (1) the parties continued to negotiate details for the next ten months, (2) plaintiff did not sign any documents that would serve to bind the parties in contract, and more importantly (3) the parties stipulated that, “in October of 2016, [defendant] was contracted by [plaintiff] to assist with the relocation, installation, and calibration of an existing scale,” defendant did not show that plaintiff assented to the terms of defendant’s December 2015 quote. We affirm the trial court’s denial of defendant’s motion for judgment notwithstanding the verdict. Granite Contracting, LLC v. Carlton Group, Inc. (Lawyers Weekly No. 012-436-21, 8 pp.) (John Arrowood, J.) Appealed from Mecklenburg County Superior Court (Lou-
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 Fe br u ar y 28, 2022
is Trosch, J.) William Robinson and Dorothy Gooding for plaintiff; Kevin Rust, Rachel Decker and Andrew Horowitz for defendant. 2021-NCCOA-707
Workers’ Compensation Parsons Presumption – Compensable Shoulder Injury – Prior Accidents Plaintiff’s treating physician testified that plaintiff’s ongoing shoulder problems were not related to his 2017 workplace injury and that the 2017 injury had not likely aggravated plaintiff’s pre-existing shoulder problems. The doctor based his opinion on factors including plaintiff’s previous medical records reporting preexisting shoulder pain, the doctor’s own examination of plaintiff, and plaintiff’s lack of candor about his pre-existing shoulder issues (when the defendant-employer hired him, he filled out a questionnaire indicating that he had never been treated by a physician for shoulder problems, despite having been treated for shoulder pain after auto accidents in 2014 and 2016). This was at least some evidence supporting the Industrial Commission’s determination that, after having accepted plaintiff’s 2017 shoulder injury as compensable, defendants had rebutted the presumption of compensability arising under Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997). We affirm the Commission’s denial of additional benefits. Samuel v. RC Creations, LLC (Lawyers Weekly No. 012-437-21, 6 pp.) (Richard Dietz, J.) Appealed from the Industrial Commission. John Landry for plaintiff; Duane Jones and Dalton Green for defendants. 2021-NCCOA-715
Civil Practice Service of Process – Personal Jurisdiction – Pro Se Plaintiff After being told he would be asked to leave a Target store if more customers complained that he was making them uncomfortable, plaintiff filed suit, issuing civil summonses to “Defendant 1”: “Target, Brian Cornell, 7 Does, 2056 Skibo Rd, Fayetteville, NC 28314” and to “Defendant 2”: “Sedgwick, Dave North, Jaylynn Crawford, 8125 Sedgwick Way, Memphis, TN 28187-1865.” The pro se plaintiff’s summonses were ineffective because (1) they were not issued to any of the defendants within five days of the filing of the complaint, as required by N.C. R. Civ. P. 4(a); (2) a summons was not directed to each of the separate defendants; (3) the summons addresses several defendants as one, residing at the address of the Fayetteville Target store; (4) there is no legal entity named “Sedgwick” that can be summoned at 8125 Sedgwick Way, Memphis, Tennessee; (5) two individuals—identified in the complaint as the CEO and as an employee of Target, respectively—were individually summoned at the same address. These defects support dismissal of the lawsuit for insufficiency of process under N.C. R. Civ. P. 12(b)(2). Moreover, Cornell, North and Crawford are not natural persons domiciled within North Carolina. Plaintiff has not pleaded with specificity that any one of the defendants is subject to personal jurisdiction in North
Carolina apart from the Target store where the alleged conflict occurred. Plaintiff has failed to carry his burden of alleging a prima facie case of personal jurisdiction over the nonresident defendants. We affirm the trial court’s grant of defendants’ motion to dismiss. Henderson v. Target (Lawyers Weekly No. 012-438-21, 5 pp.) (John Tyson, J.) Appealed from Cumberland County Superior Court (Mary Ann Tally, J.) Glenn Henderson, pro se; Steven Bader and Stephanie Gaston Poley for defendants. 2021-NCCOA-709
Domestic Relations Parent & Child – Neglect Adjudication – Older Siblings – Mother’s Mental Health Contrary to the respondentmother’s argument, the trial court’s adjudication of newborn “Brianna” as neglected was not based entirely on the family’s prior history with the Department of Health and Human Services. Rather, there was clear and convincing evidence that Brianna was at risk due to current circumstances: the respondent-parents’ history of domestic violence, the respondent-father’s current displays of anger, and the mother’s lack of current mental health treatment for her schizophrenia. We affirm the trial court’s adjudication of Brianna as neglected. We dismiss the father’s argument regarding any future termination of parental rights proceeding. The mere identification of an alternative placement does not require DHHS to prove that the alternative placement is unsafe; even if the child is living in the alternative placement at the time of disposition, the question before the court is the fitness of the parent to care for the child at the time of the proceeding, not the fitness of the alternative placement. The father argues that the primary basis for the adjudication of neglect was the mother’s noncompliance with mental health treatment and the adjudication should therefore be without prejudice to the father in any subsequently filed petition for termination of parental rights concerning Brianna. In adjudication proceedings—in contrast to termination of parental rights proceedings—the trial court is not required to determine the culpability of each parent as to the children. Accordingly, there was no adjudication of neglect as to a particular parent; there was just an adjudication that Brianna was neglected. Further, our appellate courts have rejected attempts to link initial adjudication and termination of parental rights orders in such a way as to make the termination of parental rights order dependent on the validity of the initial adjudication order. As a result, the issue of whether and how Brianna’s status as neglected may impact the father is not yet ripe for review, and we dismiss this issue because any determination of the termination of the father’s parental rights is not before us. Affirmed in part; dismissed in part. In re B.H. (Lawyers Weekly No. 012-439-21, 33 pp.) (Darren Jackson, J.) Appealed from Guilford County District Court (Angelica Foster, J.) Mercedes Chut for petitioner; Mark Hayes and Anné Wright for respon-
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dents; Jon Ward for guardian ad litem. 2021-NCCOA-710
Domestic Relations Parent & Child – Neglect Adjudication – Potential Injury – Pattern of Conduct The trial court’s findings of fact show that (1) the respondent-Mother abused illegal substances and was discharged from the Center for Emotional Health due to her continued drug use; (2) Mother was subject to domestic violence, experienced unstable housing, and was found to lack parenting skills in the case of her youngest child, “Sam”; and (3) Mother dismissed “Carl’s” education, despite his need for an individualized education plan. Mother’s neglect of Sam further supported a conclusion that Carl was neglected; Mother’s failure to address the issues that caused Sam’s removal indicates a likelihood that she will continue to neglect Carl in the future. We affirm the trial court’s adjudication of Carl as neglected. In re C.D.B. (Lawyers Weekly No. 012-440-21, 28 pp.) (Jefferson Griffin, J.) Appealed from Cabarrus County District Court (Nathaniel Knust, J.) Michael Spivey for respondent; Garrison White for petitioner; Wesley Tripp for guardian ad litem. 2021-NCCOA-711
Civil Practice Service of Process – Voluntary Dismissal – Statute of Limitations Although N.C. R. Civ. P. 4(j)(1)(e) allows for the service of process on natural persons via U.S. Postal Service mail with signature confirmation, the provision allowing for USPS service with signature confirmation is specifically not listed in the section for service upon a corporation. Accordingly, in plaintiffs’ 2018 action, their attempt to serve the corporate defendants via USPS mail with signature service was invalid and did not toll the statute of limitations. Though plaintiffs voluntarily dismissed their 2018 action and refiled within one year, since their second action was filed more than three years after the auto accident in question, plaintiffs’ claims were barred by the statute of limitations. We affirm the trial court’s grant of the corporate defendants’ motion to dismiss. Where plaintiffs’ complaint in this refiled action specifically referred to the pleadings in the 2018 action, the trial court could consider the 2018 pleadings and summonses without converting the hearing on defendants’ motion to dismiss into one for summary judgment. Jones v. Trinity Highway Products, LLC (Lawyers Weekly No. 012441-21, 18 pp.) (Donna Stroud, C.J.) Appealed from the Superior Court in Edgecombe County (Jeffery Foster, J.) Richard Batts for plaintiffs; Nicholas Ellis, Michael Gruman and Christopher Skinner for defendants. 2021-NCCOA-712
Taxation Appeals – Mandate on Remand – Escrowed Funds In her complaint, plaintiff sought “an immediate release of the funds
being held in escrow by Graham County in the amount of $45,309.67,” and Graham County’s counterclaim sought a declaration that it was “entitled to have said funds held in reserve disbursed to it…” In a prior appeal, we decreed, without qualification, that plaintiff was “entitled to summary judgment and the return of her escrowed funds.” Therefore, on remand, the trial court was without authority to withhold part of the escrowed funds for the payment of real property taxes for subsequent years, nor may plaintiff now seek from the trial court an amount in excess of that specified in our prior decision. We affirm in part, reverse in part and remand for the return to plaintiff of the full amount held in escrow. Miller v. Graham County (Lawyers Weekly No. 012-442-21, 8 pp.) (Hunter Murphy, J.) Appealed from Graham County Superior Court (Steven Warren, J.) Reid Goldsby Miller, pro se; J. K. Coward for defendants. 2021-NCCOA-713
Civil Practice Personal Jurisdiction – Necessary Party – Alignment as Plaintiff – Real Property In this action to enforce the terms of a contract involving North Carolina real property, added party plaintiff Stephen Rice performed several contractual obligations in North Carolina. It does not violate his due process rights for our courts to exercise personal jurisdiction over him. We affirm the trial court’s denial of Stephen’s motion to dismiss. Even though the trial court added Stephen as a party plaintiff, since the court added him as a necessary party without his consent, Stephen may assert the defense of a lack of personal jurisdiction. This action, filed by Patricia Rice, arises out of a breach of an alleged contract, the parties’ “Agreement.” The trial court found as fact that “Mr. Rice was party to the alleged Agreement,” which is the bargaining arrangement upon which the suit is brought. Stephen does not challenge this finding on appeal, and it is thus presumed to be correct. In the Agreement, defendants promised to convey real property in Buncombe County to “Patricia Rice or her designee[.]” By the terms of the Agreement, the Rices were obligated to coordinate matters with Buncombe County zoning officials (a task that Stephen completed in this state), and to provide a metes-andbounds description of the relevant subdivision lot that conformed to local ordinances. In turn, the Rices were given access to the home on lot 140 for 12 days in order to remove their personal property. Furthermore, defendant Rutledge Road Associates, LLC, was obligated by the Agreement “to create a property owners’ association to take over the sewer pump system [for the Buncombe County subdivision], and execute a hold harmless agreement in favor of Mr. Rice.” The Agreement thus plainly reveals that “real property situated in the state” was the “subject matter of the arrangement” to which Stephen was a party. Accordingly, the trial court properly exercised personal jurisdiction over Stephen under the North Carolina long-arm statute, G.S. § 1-75.4(6)(a). In order to satisfy the Rices’ contractual obligations, Stephen trav-
eled to North Carolina on several occasions: he met with Buncombe County zoning officials, presented documents to the zoning officials in North Carolina, hired a North Carolina surveyor, and removed his personal property from the house on lot 140. Stephen timely performed all of these obligations in this state in furtherance of the Agreement, the alleged breach of which is the basis of this cause of action. By choosing to promise to perform in North Carolina when he signed the Agreement, Stephen must reasonably have anticipated that he could be sued in North Carolina if he failed to meet his promise. Moreover, the courts of this state are open to Stephen for protection of his activities and to enforce valid obligations assumed by reason of the contract. Because Stephen engaged in purposeful activity centering on North Carolina property, traditional notions of fair play and substantial justice are not offended by requiring that he submit to the jurisdiction of the courts of this state. Accordingly, the trial court appropriately concluded that Stephen’s “contacts with the state are sufficient to satisfy due process requirements.” Affirmed. Rice v. Rutledge Road Associates, LLC (Lawyers Weekly No. 012-443-21, 15 pp.) (Valerie Zachary, J.) Appealed from Buncombe County Superior Court (William Coward, J.) No brief filed for plaintiff Patricia Rice; Thomison Holman for plaintiff Stephen Rice; Katherine Langley and David Matney for defendants. 2021-NCCOA-714
Civil Practice Appeals – Magistrate’s Order – Jurisdiction Where a magistrate judge granted plaintiff’s motion under N.C. R. Civ. P. 60(b)(1), setting aside an earlier order in the case, defendant’s only avenue for appeal was to seek a trial de novo in the district court. This court lacks jurisdiction to hear defendant’s attempted appeal directly to this court. Appeal dismissed. Snider v. Elite Mountain Business, LLC (Lawyers Weekly No. 012-444-21, 5 pp.) (April Wood, J.) Appealed from Macon County Small Claims Division of District Court (Joseph Brogden, M.J.) Kimberly Carpenter for plaintiff; Stuart Sloan for defendant. 2021-NCCOA-716
Criminal Practice Sentencing – Aggravating Factor – Probation Violation – Different Cases – Notice – Conspiracy to Sell Methamphetamine Originally, the state notified defendant that it intended to prove, as an aggravating factor, that defendant had committed a probation violation in a Haywood County case, but on the day of the aggravating factor phase of defendant’s trial, the state informed defense counsel that it was instead relying on a Jackson County case to prove the probation-violation aggravating factor. Nevertheless, the state gave defendant the notice required by G.S. § 15A-1340.16. Nowhere in the statute nor in our case law is the state required to specify the exact case (or from what county) it intends to use as
evidence of an aggravating factor at trial. In fact, the associated form does not even leave room for such specificity. The trial court did not err in denying defendant’s motion to dismiss the charge or conspiracy nor in sentencing him in the aggravated range. As evidence of conspiracy, the state presented evidence tending to show defendant, together with Timothy Shuler, went to a gas station where Detective Evan Davis had “been involved in some drug activity” and “where some arrests ha[d] been made…” At the gas station, defendant and Shuler interacted with Heath Underwood, whom Detective Davis had previously arrested for possession of methamphetamine. A vehicle search of the white car in which Shuler and defendant were seated produced methamphetamine on both Shuler’s and defendant’s persons, a glass methamphetamine pipe, digital scales, ledgers, ammunition, and lots of “[awkwardly]” folded cash belonging to defendant. Furthermore, defendant was very fidgety throughout the traffic stop. Lastly, Officer Jason Reynolds’s testimony at trial provided that, based on training and experience, all of this evidence taken together was consistent with the sale of drugs. Viewed in the light most favorable to the state, the circumstances surrounding defendant’s arrest pointed to a mutual implied understanding to commit the unlawful act of selling or delivering methamphetamine. No error. State v. Warren (Lawyers Weekly No. 012-445-21, 11 pp.) (John Arrowood, J.) Appealed from Haywood County Superior Court (Bradley Letts, J.) Katherine Murphy for the state; Candace Washington for defendant. 2021-NCCOA-729
Criminal Practice Child Abuse – Forensic Interview Recording – Ineffective Assistance Claim Defendant contends his trial counsel’s failure to request a voir dire prior to the trial court’s admission of State Exhibit 7—a recording of a social worker’s interviews with the child-victims—deprived him of effective assistance of counsel. However, defense counsel actively participated in the pretrial evidentiary hearing regarding the admissibility of State’s Exhibit 7, the trial court ruled the exhibit to be admissible for corroborative purposes only, defendant did not challenge the limiting instruction given, and he concedes the trial court “gave appropriate instructions to the jury ... and in his closing instructions to the jury.” Defendant cannot show his counsel’s performance was deficient. We find no error in defendant’s convictions of two counts of felony child abuse inflicting serious physical injury. State v. Basnight (Lawyers Weekly No. 012-446-21, 6 pp.) (John Tyson, J.) Appealed from Washington County Superior Court (Wayland Sermons, J.) Gwenda Laws for the state; Paul Herzog for defendant. 2021-NCCOA-717
Criminal Practice Pro Se MAR – Sentencing – No New Facts Even though defendant’s pro se fil-
24 / OPINION DIGESTS ing was labeled as a “Petition for Actual Innocence” instead of a “Motion for Appropriate Relief,” and even though the document mistakenly cites to G.S. Chapter 14A instead of G.S. Chapter 15A, since defendant sought resentencing for a lesser offense, the trial court properly treated defendant’s filing as a motion for appropriate relief. We affirm the trial court’s denial of defendant’s petition/MAR. Defendant was convicted of firstdegree murder, and he pled guilty to statutory rape of the victim. In his petition, defendant asserts that while in an “incontrollable rage,” defendant stabbed the victim 16 times “and left the knife in her chest, gave victim a kiss and departed.” He requested that his conviction be set aside and that he be resentenced for voluntary manslaughter. In his first appeal, defendant did not raise the issue related to whether the evidence could sustain a verdict of voluntary manslaughter but not first-degree murder. Further, defendant’s petition does not articulate any newly discovered evidence or claims based on rights arising by reason of constitutional decisions announcing new principles or changes in the law made after his first appeal. Instead, defendant’s petition merely reiterates facts and evidence that were contained in his testimony at trial. As such, the petition contains no new issues or arguments that could not have been raised on his first direct appeal. The trial court correctly concluded the petition was procedurally barred under G.S. § 15A-1419(a)(3). As the trial court properly concluded defendant’s petition was procedurally barred, defendant was not entitled to an evidentiary hearing because the petition did not present any questions of fact—only questions of law. Thus, the trial court did not err by concluding that petitioner was not entitled to an evidentiary hearing. Affirmed. State v. Ramirez (Lawyers Weekly No. 012-447-21, 10 pp.) (Toby Hampson, J.) Appealed from Guilford County Superior Court (Patrice Hinnant, J.) Marissa Jensen for the state; Amanda Zimmer for defendant. 2021-NCCOA-726
Criminal Practice Subject Matter Jurisdiction – Conditional Discharge Probation – Extensions Defendant’s conditional discharge probation ended on 20 May 2019. This type of probation can be extended under G.S. § 15A-1344(f), but the trial court instead relied on G.S. § 15A-1342(a). Under § 15A1342(a), the extension may be ordered “only in the last six months of the original period of probation.” Consequently, the trial court lacked the authority to enter its 10 October
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circumstances exception “does not serve as a tool of convenience to be employed by law enforcement in the absence of immediate danger to persons, a fleeing suspect, or the need to ‘prevent the imminent destruction of evidence.’” In fact, she noted, the warrant requirement, by design, imposes certain restrictions on law enforce-
2019 order extending defendant’s probation. Because the trial court lacked jurisdiction to extend defendant’s probation on 10 October 2019, the trial court also lacked jurisdiction to revoke defendant’s probation and enter judgment suspending his sentence on 5 October 2020. We remand to the trial court to vacate its order and judgment revoking defendant’s probation and to discharge and dismiss the charge against defendant. The state argues defendant’s charge cannot be discharged and dismissed because he entered a contract of conditional discharge with the state, and defendant did not fulfill the obligations of his side of the contract. The state contends this court giving defendant the benefit of the bargain without defendant fulfilling his obligations would be an “outrageous ... abuse of the conditional discharge procedure.” We disagree. The state and defendant agreed to 12 months of probation as part of a conditional discharge. If the state wanted to extend, modify, or revoke defendant’s probation, it needed to do so either in the last six months of defendant’s probationary period or in accordance with § 15A-1344(f). The state did neither of these things. Thus, G.S. § 15A-1342(i) controls. Because the term of probation expired, and the trial court did not re-obtain or extend its jurisdiction, defendant “shall be immune from prosecution of the charges deferred or discharged and dismissed.” § 15A-1342(i). Remanded. State v. Hilgert (Lawyers Weekly No. 012-448-21, 12 pp.) (Jeffery Carpenter, J.) Appealed from New Hanover County Superior Court (James Carmical, J.) Kayla Britt for plaintiff; David Andrews for defendant. 2021-NCCOA-720
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burglary. State v. Caballero (Lawyers Weekly No. 012-449-21, 10 pp.) (John Arrowood, J.) Appealed from Durham County Superior Court (Michael O’Foghludha, J.) Heyward Earnhardt and Ryan Park for the state; James Glover for defendant. 2021-NCCOA-718
Criminal Practice Constitutional – Ineffective Assistance Claim – Fingerprint Expert Defendant argues that his trial counsel’s failure to obtain a continuance to retain a fingerprint expert constituted ineffective assistance of counsel. We cannot say whether defendant was prejudiced by his trial counsel’s failure to retain a defense fingerprint expert because we do not know whether such an expert would have had a materially differing opinion from the state’s expert in fingerprint analysis. At a hearing on a motion for appropriate relief, defendant would have the opportunity to show what testimony or evidence another fingerprint expert would have added to the proceedings, had trial counsel retained one. Accordingly, we dismiss defendant’s ineffective assistance of counsel claim without prejudice to any motion for appropriate relief on the basis of ineffective assistance of counsel defendant may later file in the trial court. State v. Newton (Lawyers Weekly No. 012-450-21, 8 pp.) (Darren Jackson, J.) Appealed from Mecklenburg County Superior Court (Gregory Hayes, J.) Kimberley D’Arruda for the state; Jeffrey William Gillette for defendant. 2021-NCCOA-723
Criminal Practice Subject Matter Jurisdiction – Indictment – Habitual Felon Even though the grand jury marked its original habitual-felon indictment “NOT A TRUE BILL,” there was a true bill habitual felon indictment dated the same day the grand jury returned valid indictments for defendant’s underlying substantive charges, and defendant was properly served with the true bill. Before finding the habitual-felon true bill, the trial court granted the state a continuance, during which the state acquired a subsequent habitual-felon indictment. This continuance did not result in defendant being subjected to an increased sentence that was otherwise impermissible because the trial court had jurisdiction to try defendant as a habitual felon before the state acquired the subsequent indictment. No error. State v. Hodge (Lawyers Weekly No. 012-452-21, 8 pp.) (Jefferson Griffin, J.) Appealed from Wake County Superior Court (Rebecca Holt, J.) On remand from the N.C. Supreme Court. Joseph Hyde for the state; Aaron Thomas Johnson and Kellie Dorise Mannette for defendant. 2021-NCCOA-721
Criminal Practice DWI – Motion to Suppress – Probable Cause
A deputy sheriff testified that, despite multiple attempts to give an eyewitness the opportunity to expand her story, her account “stayed entirely 100 percent consistent, resolute and solid.” The deputy’s testimony about the eyewitness’s statement at the scene of the murder corroborated her testimony at trial, and the deputy did not express any other opinion about the credibility of the witness’s statements made on the day of the murder or at trial. Because the deputy’s testimony was limited to corroborating the eyewitness’s statements and testimony, defendant has failed to show that he was prejudiced. Accordingly, the trial court did not plainly err in admitting the deputy’s testimony. We find no error in defendant’s convictions for first-degree murder, attempted murder and first-degree
Before indicating to the trial court that it intended to present an aggravating factor during sentencing, the state proffered its exhibit to the defense. There is no indication that the aggravating factor—that defendant was in willful violation of probation within the last ten years—would not have been proven by the state if defendant had not stipulated to it. Therefore, even if the trial court erred by accepting the stipulation from defense counsel without directly addressing defendant, defendant was not prejudiced by the trial court’s action. We find no error in the judgment finding defendant guilty of seconddegree forcible rape. State v. Fiabema (Lawyers Weekly No. 012-451-21, 6 pp.) (Chris Dillon, J.) Appealed from Person County Superior Court (Orlando Hudson, J.) Sonya Calloway-Durham for the state; Dylan Buffum for defendant. 2021-NCCOA-719
The trial court’s findings of fact showed that (1) an officer observed defendant traveling more than 20 mph over the speed limit, (2) defendant had a strong smell of alcohol on his breath, (3) defendant admitted to drinking at least one drink and then repeatedly changed his story, (4) defendant had trouble following directions, (5) defendant had difficulty following the officer’s instructions and completing each field sobriety test despite passing “the [horizontal gaze nystagmus test] medical ruleout without any issues” and (6) defendant failed to provide two sufficient samples for the portable breath test. Based on this evidence that defendant violated traffic laws, showed several signs of impairment, and admitted to drinking, a reasonable officer would believe that defendant had driven a vehicle on public streets under the influence of alcohol. Therefore, the trial court did not err by concluding that the totality of the circumstances supported probable cause to arrest defendant. We find no error in defendant’s conviction of driving while impaired. State v. Jones (Lawyers Weekly No. 012-453-21, 11 pp.) (Jefferson Griffin, J.) Appealed from Wake County Superior Court (Vinston Miller Rozier, J.) Kellie Army for the state; Stephen Driggers for defendant. 2021-NCCOA-722
ment to protect suspects’ rights. The time and effort to get a warrant is typically not enough to show exigent circumstances. “Based on the record before us, we hold that the officers reasonably concluded that use of the ‘exigent form’ was necessary to obtain a prompt response from the cell phone provider when an armed and dangerous suspect was at large,” Keenan said.
Baltimore attorney Joshua E. Hoffman represented Hobbs. He said the issue regarding T-Mobile being “notoriously slow” in responding to warrants was “unexpected,” and he was surprised it was effective. He added that he felt the Fourth Circuit misapplied the Caraballo holding because that defendant exhibited a far greater and more imminent threat compared with Hobbs. On Feb. 15, Hoffman filed a re-
quest that the Fourth Circuit conduct a rehearing of the appeal en banc. Brandon Keith Moore of the Office of the United States Attorney in Baltimore did not respond to a request for comment. The 13-page opinion is United States v. Hobbs (Lawyers Weekly No. 001-023-22, 13 pp.) The full text of the opinion is available online at sclawyersweekly.com.
Criminal Practice Murder – Eyewitness Account & Prior Consistent Statement
Criminal Practice Sentencing – Aggravating Factor – Stipulation – Defense Counsel