North Carolina Lawyers Weekly March 14, 2022

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MARCH 14, 2022 ■ $8.50

Batson error leads to conviction reversal ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com

Billionaire’s discovery violations justified ‘harsh’ sanctions ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires Repeated discovery violations committed by a real estate holding company and its owner-founder justified the “harsh” of striking their pleadings and entering a default judgment, the North Carolina Court of Appeals has ruled in a case involving a billionaire currently serving a prison sentence for attempting to bribe the state’s insurance commissioner.

The dispute at issue involved Greg Lindberg—the businessman and political donor convicted in a

bribery scandal—his ex-wife, Tisha Lindberg, and Dunhill Holdings, LLC, a real estate holding company of property they shared. After the couple divorced, Dunhill filed a complaint against Tisha, asserting claims of breach of fiduciary duty, constructive fraud, civil liability for theft and embezzlement and conversion, among others.

Tisha responded with her own counterclaims and the parties began a highly contentious discovery process. Greg and Dunhill objected to Tisha’s various requests, and Tisha accused them of spoliation of evidence.

In June 2018 Durham County Superior Court Judge Orlando F. Hudson Jr. granted Tisha’s request for a forensic examination and entered orders compelling discovery by Greg and Dunhill. The order was affirmed on the case’s first trip to the Court of Appeals.

On remand, discovery continued to be a battle, and in March 2019 and August 2019 orders, Hudson granted Tisha’s motions for sanctions against Greg and Dunhill. It ruled in her favor on all liability issues by dismissing Dunhill’s claims

The peremptory striking of a Black juror by a prosecutor who couldn’t provide the trial court with an acceptable race-neutral reason for the dismissal constituted a substantive violation of the defendant’s constitutional right to equal protection, a divided North Carolina Supreme Court has ruled.

In the high court’s Feb. 11 order, Justice Robin Hudson wrote that the state impermissibly excluded one of only two Black women in the jury pool (the court declined to consider the dismissal of the second woman) after Wake County Superior Court Judge Paul Ridgeway rejected the state’s race-neutral reasons for the strike. The majority also found that the prosecutor disparately questioned the prospective juror, and that the trial court considered arguments not presented by the state and held the defendant to too high a burden in his Batson challenge.

“As a consequence, the totality of the evidence presented for the court to consider established that it was sufficiently likely that the strike was motivated in substantial part by discriminatory intent,” Hudson wrote.

“This constitutes a substantive vio-

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See Batson Page 6 ►

4th Circuit: No rubber-stamp of asylum rejection ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com A Guatemalan man seeking asylum will get a review of his case because an immigration judge applied an improper standard when determining whether the man reasonably feared persecution or torture if he were sent back to his home country, a unanimous 4th U.S. Circuit Court of Appeals panel has ruled in a case of first impression.

The U.S. Department of Justice argued that the decision of the immigration judge who reviewed an asylum officer’s determinations should be upheld because they were based on a “facially legitimate and

bona fide reason,” a standard that the appeals court ruled was developed in the limited setting of denying visas, and thus inapplicable in an asylum case.

Judge Pamela Harris, writing for the 4th Circuit in its Feb. 2 opinion, said the government has yet to persuade a circuit to agree that courts should apply a more deferential standard than the usual substantial evidence standard in reasonable fear determinations.

“The government may not remove a noncitizen to a country in which there are substantial grounds for believing he would be tortured, or in which he faces a clear probability of persecution on account of a protected ground,” Harris wrote. “And if the non-

citizen meets the relevant burden of proof, then both [Convention Against Torture] relief and withholding relief are mandatory—just as they are in the context of a full removal hearing, when we apply our already very deferential substantial evidence standard of review.”

I hear what you’re saying, but…

Adan De Jesus Tomas-Ramos first entered the U.S. without authorization in 2017 but was returned to Guatemala a month later. He returned to the U.S. in 2018 with his teenage son, and the U.S. DepartSee Asylum Page 7 ►

INSIDE VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

COMMENTARY

Fatal work zone crash leads to $3.6M settlement

Injured ‘Ironman’ settles suit for $1.3M in bike crash

Sweat the small stuff – it matters

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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 M arch 14, 2022

NEWS BRIEFS Supreme Court adopts ability-to-pay rule The North Carolina Supreme Court has adopted a new ability-topay rule that will apply in criminal and infraction cases in which the court has discretion to impose monetary obligations including costs, fees, fines, and restitutions, the North Carolina Administrative Office of the Courts announced in a March 4 press release.

The release states that the rule, which was adopted on Dec. 14, 2021, and went into effect on Jan. 1, establishes a motion procedure for a defendant to request an equitable imposition of monetary obligations in eligible cases.

Rule 28, “Equitable Imposition of Monetary Obligations in Criminal Cases and Infraction Cases Based on the Defendant’s Ability to Pay” is a new addition to the General Rules of Practice for the Superior and District Courts, which are promulgated by the Supreme Court under Section 7A-34 of the General Statutes of North Carolina.

According to the Supreme Court order, a defendant convicted of a crime or found responsible for an infraction may use a form motion to move the court to impose the obligations equitably based on their ability to pay. The court must consider the motion and conduct a hearing, if necessary. The court must rule on the motion before imposing monetary obligations and may grant any relief permitted by law.

Staff reports

Settlement over N.C. driver license revocations OK’d RALEIGH (AP) — A federal judge has approved an agreement designed to help tens of thousands of North Carolina residents whose driver’s licenses are revoked only because they can’t afford to pay traffic fines and court costs know they can get their driving privileges restored.

The settlement signed by U.S. District Judge Thomas Schroeder and disclosed on March 3 essentially ends a 2018 lawsuit that challenged North Carolina’s practice of revoking the licenses of people for the inability to pay as unconstitutional.

Lawyers for a pair of low-income motorists who initially sued the Division of Motor Vehicles commissioner said the agency failed to alert drivers in danger of losing their licenses that they could get a reprieve by pleading to a judge that they could not afford to pay their penalties.

The lawsuit ultimately expanded to include everyone whose licenses were revoked since mid-2015 because of their failure to pay these costs for traffic offenses and are still unable to drive lawfully. They wanted the law governing license revocations for nonpayment struck down and licenses reinstated where the question of indigency applied.

DMV estimates there are 57,000 people with revoked licenses in which their failure to pay is the only obstacle to reinstatement, a state’s attorney told Schroeder during a hearing.

The settlement “will help mitigate the harms of the unnecessarily harsh and punitive practice of revoking people’s drivers’ licenses because they are not wealthy, a practice which has disproportionately affected people and

communities of color,” Michele Delgado, an attorney for the ACLU of North Carolina, which helped represent the plaintiffs, said in a news release.

Under the agreement, reached following negotiations with a mediator’s help, DMV will send letters and emails to an estimated 185,000 people letting them know of the legal process in place to seek a judge’s waiver of their traffic fees and court costs. Similar notices will be sent in the future before revocations are complete.

DMV also will pay $30,000 to fund a third-party website that provides information to motorists seeking how to prevent their licenses from being suspended due to nonpayment of penalties and costs, including legal resources. Notices will be posted in DMV offices and courthouses statewide about the settlement and options to prevent revocations.

DMV spokespersons did not immediately respond to an email request for comment. In early court filings, DMV’s lawyers argued the law was not unconstitutional.

Schroeder wrote that while the motorists had not demonstrated a likelihood that the law was unconstitutional, the “increased notice provisions included in the settlement seek to provide additional procedural due process safeguards” so drivers plainly know they can retain their licenses.

“The settlement appears fair, reasonable, and adequate,” Schroeder wrote in his order, dated March 2. The settlement contains no admission of wrongdoing by the DMV commissioner, he added.

The initial plaintiffs described in the litigation their struggles to get restored their licenses, which the lawsuit says are essentially a prerequisite to employment in a state like North Carolina. A 2016 U.S. Department of Transportation report said more than 90 percent of North Carolina residents traveled to work by car and only 1 percent got there by public transit, according to the lawsuit.

The initial plaintiffs — both Cabarrus County residents at the time — described in the lawsuit a cycle of fines and attempts to catch up on their debts as they try to hold on to their jobs and support their families.

One unemployed resident said he faced revocation because he failed to pay $228; the other could not pay several hundred dollars in penalties.

Voter ID lawsuit to N.C. Supreme Court in accelerated appeal RALEIGH (AP) — The North Carolina Supreme Court has agreed to accelerate appeals in a photo voter identification lawsuit by hearing the case without waiting for the Court of Appeals to deliberate first.

In a March 2 order the justices granted the request of lawyers for minority voters who successfully sued at the trial-court level to bypass arguments at the intermediate-level appeals court.

In September, a divided panel of three trial judges threw out the state’s latest photo ID law, which was approved by the General Assembly in late 2018, weeks after a photo ID mandate was added to the state constitution. Still, the panel’s majority declared the implementing law unconstitutional, in part because the justices said it intentionally discriminated against Black voters.

BAR DISCIPLINE

ROUNDUP Attorney: Brian R. Harwell Location: Mooresville Bar membership: Member since 2002 Disciplinary action: Suspended from the practice of law until the conclusion of all disciplinary proceedings against him on Feb. 17 Background: Harwell pleaded guilty to felony possession of methamphetamine, misdemeanor harboring a fugitive, and misdemeanor resisting a public officer in Iredell County Superior Court on Aug. 9, 2021. The conduct underlying the plea involved making one of more false statements to police regarding a client’s whereabouts when the officers arrived at Harwell’s home seeking to serve a warrant for the client’s arrest. Harwell had provided the client a home, medical care, and transportation, and the client had provided Harwell methamphetamine.

Harwell failed to timely respond to a properly served petition for order of interim suspension.

Previous discipline: None

the practice of for two years on Feb. 26.

That suspension is stayed for two years so long as Landivar complies with certain conditions.

Background: Landivar was an attorney with Carolina Legal Services (CLS), which provided debt-relief services to North Carolina consumers that included debtadjusting (acting as a paid intermediary between a debtor and his creditors for the purpose of settling the debtor’s debts), which is illegal under North Carolina law unless done by a licensed attorney who is not employed as a debt adjuster. Landivar provided only limited legal services to his clients and knew that CLS was not authorized to engage in debt adjusting in North Carolina and used non-lawyers employed by out-ofstate companies to provide most of the legal services to its North Carolina consumers, and did not adequately or directly supervise the non-lawyers doing this work.

Previous discipline: None

Attorney: James Landivar Location: Charlotte Bar membership: Member since 2018 Disciplinary action: Suspended from

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.

Republican legislative leaders who were sued appealed the ruling. They say there was no evidence of racial bias and that the rules ensured ballot access for all registered voters.

The attorneys for the minority voters asked the Supreme Court to take the case now because it addresses substantial legal issues. They also argued that it would help to avoid any delays in the legislature fashioning a voter ID law that complies with the constitution, which it would do if the justices uphold the trial court order.

Attorneys for Republicans wanted the case to work through the Court of Appeals first. They argued that a pending federal lawsuit challenging the same law likely won’t be resolved for at least more than a year, so accelerating the state case isn’t necessary.

The state Supreme Court didn’t say in its order when oral arguments would be held, but the group providing lawyers for the plaintiffs said in a news release that it expects them this summer.

The Republicans’ attorneys also argued that the lawsuit plaintiffs simply wanted to move the case to a more favorable forum with the Supreme Court. Four of the seven justices are registered Democrats. Two of the seven seats—both held by Democrats— are on the November statewide ballot.

Ten of the 15 Court of Appeals judges, which usually meet in panels of three, are registered Republicans.

Arguments were held before the state Supreme Court in February in another pending case focused on the legality of the constitutional amendment requiring a photo ID to vote.

U.S. Supreme Court narrows reach of career criminal law WASHINGTON (AP) — The U.S. Supreme Court has narrowed the reach of a federal law that strengthens penalties for career criminals found to illegally have a gun.

The high court was ruling in the case of a man a lower court classified as a career criminal after counting the man’s burglary of 10 different public storage units on a single evening as 10 separate offenses. The high court said unanimously on March 7 that that was an error.

The man’s 10 burglary convictions should have been treated as one event rather than separate crimes when considering whether he qualified for a stiffened sentence under the federal Armed Career Criminal Act, the justices concluded.

Without the stronger sentence, the man’s recommended sentence would have been approximately two years, but he was instead sentenced to nearly 16.

“Convictions arising from a single criminal episode … can count only once under ACCA,” Justice Elena Kagan wrote.

The decision could result in reduced sentences for other people subject to stronger sentences under the law. According to a U.S. Sentencing Commission report, however, people classified as armed career criminals have recently made up less than one percent of those sentenced every year for federal offenses.

The Armed Career Criminal Act requires a 15-year mandatory minimum sentence for anyone found to have a gun after three or more previous convictions for violent felonies or serious drug offenses. The law says that each of the offenses must have been “committed on occasions different from one another.”

Kagan wrote that a single “occasion” can include distinct activities, citing the example of multiple events occurring on a couple’s wedding day.

“The occasion of a wedding, for example, often includes a ceremony, cocktail hour, dinner, and dancing.

Those doings are proximate in time and place, and have a shared theme (celebrating the happy couple); their S e e P a g e 24 ►

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VERDICTS & SETTLEMENTS / 3

Fatal work zone crash leads to $3.6M settlement ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com

Donald Dunn

David Kirby

A 73-year-old woman whose husband was killed in a car wreck in a work zone has settled her wrongful death suit for $3.6 million, her attorneys report.

Donald Dunn of Riddle & Brantley in Goldsboro and David Kirby of Edwards Kirby in Raleigh represented Andrea Sawyer and the estate of her husband, 77-year-old Charles Sawyer. In a written report to Lawyers Weekly, the attorneys said that the Sawyers were driving on Interstate 42 in Garner on Oct. 4, 2017, when a member of the construction team that had created a traffic island flagged down the couple, instructing them to stop in the travel lane of the highway so a cement truck could back onto the highway.

As the plaintiffs were stopped in the road another vehicle rear-ended them, their attorneys said. Andrea Sawyer suffered soft-tissue injuries and emotional distress, while Charles suffered multiple thoracic spine fractures and a spinal cord injury that led to his death eight months later.

The Sawyers contended that the work zone traffic control violated the U.S. Department of Transportation Federal Highway Administration Manual on Uniform Traffic Control Devices due to improper warning signage, improper placement of the signage, and an improper lane taper distance.

“The driver who rear-ended the Sawyers said he saw the cone taper but didn’t notice the Sawyers’ stopped car,” the attorneys wrote in an email. “Plaintiff’s case against the construction company relied on doctrines of concurring negligence and multiple proximate causes.”

George Pender of Hedrick Gardner in Raleigh represented the defendants. He could not be reached for comment on the settlement.

Follow Heath Hamacher on Twitter @ NCLWHamacher

SETTLEMENT REPORT – WRONGFUL DEATH/ NEGLIGENCE

Amount: $3.6 million Injuries alleged: Wrongful death, soft-tissue injuries and emotional distress for surviving spouse Case name: Estate of Charles Sawyer, by and through Andrea Sawyer, Administratrix, and Andrea Sawyer, individually v. Daryl G. Goodwin, Brandon Garner, and Gelder & Associates, Inc. Court: Johnston County Circuit Court Date of Settlement: Aug. 10, 2021 Most helpful experts: Daren Marceau of Cary (traffic engineering) and Steve Farlow of Raleigh (accident reconstruction) Attorneys for plaintiff: Donald Dunn of Riddle & Brantley in Goldsboro and David Kirby of Edwards Kirby in Raleigh Attorneys for defendant: George Pender of Hedrick Gardner in Raleigh

Injured ‘Ironman’ settles suit for $1.3M in bike crash ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com A bicyclist who crashed into a vehicle that had pulled in front of him has settled his suit for $1.3 million, his attorney reports.

Ann Groninger of Johnson & Groninger in Charlotte reports that her client and two other cyclists were riding along a Union County road when a 17-year-old driver leaving his neighborhood gunned his car past a stop sign and into the plaintiff’s path. The client was already in the intersection and couldn’t avoid the collision, Groninger said.

The man, a 50-something Ironman triathlete who’d been out on a recreational bike ride, suffered clavicle fractures that required multiple surgeries, several broken ribs, two spinal fractures, a punctured lung, and traumatic brain injury (TBI).

Many details of the case, including names of the parties and defense counsel, were withheld due to a confidentiality agreement.

Groninger said that her client lost his job while recovering from the crash, but that he quickly moved back into the workforce and is doing well, despite his physical and mental injuries.

“Obviously that was a challenge to overcome,”

Groninger said.

Groninger said that the severity of the TBI was highly contested, partly because the effects weren’t apparent until after he’d recovered from his surgeries, when his family noticed signs of potential brain injury.

“It was our position that it Ann was pretty significant, but I often Groninger say about bicyclists that they are very driven and hard-pressing, and they want to recover and get on with their life, so it’s hard to show the damages sometimes,” Groninger said.

Neurological testing and before/after testimony from those who knew him aided in that, Groninger said.

Groninger said that years after the incident, her client still feels significant effects of the crash and will likely require future treatment and testing, but he is moving on. He remains active but is unable to compete in triathlons, largely because his injuries have severely limited his ability to swim at a high level.

“This guy is an athlete,” Groninger said. “He needs to win … but he tried every treatment you can think of … but just could never get back to where he was.”

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.3 million Injuries alleged: Fractured clavicle, multiple rib fractures, spinal fractures, punctured lungs, traumatic brain injury Case name: Withheld Venue: Union County Mediator: Wayne Huckel of Charlotte Date of settlement: Sept. 1, 2021 Most helpful experts: James Sobek of Fishers, Indiana; Antonio Puente, Ph.D., of Wilmington; and Dr. Dana Piasecki of Charlotte Attorney for plaintiff: Ann Groninger of Johnson & Groninger in Charlotte Attorneys for defendant: Withheld Wayne Huckel of Charlotte mediated the case, which Groninger said was settled on Sept. 1, 2021, within two weeks of when it had been set to go to trial.

Follow Heath Hamacher on Twitter @ NCLWHamacher

State to pay $6.6M after shops’ parking squeezed ■ BY DAVID BAUGHER The owners of a shopping center in Wilmington have reached a $6.6 million settlement with the North Carolina Department of Transportation after a dispute over how easements and other issues would impact parking at the development, the landowners’ attorneys report.

George George Autry Jr., Stephanie Autry Jr. Autry, and Jeremy Hopkins of Cranfill Sumner in Raleigh report that the NCDOT took rights of way and numerous temporary and permanent easements from a large Food Lion-anchored shopping center located in the Ogden neighborhood in Wilmington.

Access was restricted as the result of the taking of right of way and permanent easements, so that after the taking, delivery vehicles had to

access the rear of the shopping center through the main access points and parking lots. There was also a loss of parking, and several tenStephanie Jeremy ants terminated Autry Hopkins their leases or sought concessions because of the taking.

“Your national tenants are not going to remain and operate in a place where their operation is uncertain or at risk or where they have insufficient parking,” Hopkins said. “Parking and access are the lifeblood to those properties.”

The parties disagreed as to the value of the shopping center before the taking, with the DOT’s appraiser saying the value of the shopping center was significantly diminished due to

SETTLEMENT REPORT – EMINENT DOMAIN

Amount: $6.6 million Injuries alleged: Loss of rights of way and temporary and permanent easements Case name: North Carolina Department of Transportation v. ZP173 Court: New Hanover County Circuit Court Case No.: 17-CVS-02497 Attorneys for landowner: George Autry Jr., Stephanie Autry, and Jeremy Hopkins of Cranfill Sumner in Raleigh physical depreciation. The DOT initially deposited just $2,823,100, but after negotiations agreed to pay an additional $3,776,900, for a total settlement of $6,600,000, and the property owner agreed to dismiss its Map Act case.

4 / COMMENTARY 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 M arch 14, 2022

Sweat the small stuff – it matters ■ BY HAYNES HANSEN AND ERIC MAGNUSON BridgeTower Media Newswires The brief is done. You spent years working up the case, and months thinking through the legal arguments, chasing down every last citation as you wrote the appellate brief. Now it’s done, and all that’s left to do is file it and wait for the court to adopt it wholesale, right?

Hold on. Even the best writer’s best work needs editing. After hours of staring at those pages, the details of the citations start to grow into each other, all that carefully coiffed legal argument begins to lose the plot-line, and the typos have grown like weeds — but the writer is too close to it to see the obvious.

Yes, no matter how badly you would like that brief just to be done, it needs editing, and it needs to be edited by someone who didn’t write it. Here are some tips for those taking on the less glamorous—but always necessary—work of appellate brief editing.

1. Sweat the small stuff after all.

It’s tempting to think that we

left the Blue Book behind in our 1L year of law school and that citation form doesn’t matter. After all, who is really paying attention to that wrongly italicized comma or to that incorrectly abbreviated case name? Well, you never know who is paying attention. And more importantly, a persuasive brief has to be reliable. Messy citations can be an express route to losing credibility. Judges and law clerks rely on your citations, and when the citations are inaccurate, they have to find your cited case on their own. That is more than irritating; it makes them wonder what else you got wrong. Like it or not, accurate citations are an ingredient in the recipe for a confidence-inspiring brief.

We’d all love to draft perfect citations on the first go-around. But for us mere mortals, an attentive editor is the best way to error-free citations. Editors should be on the lookout for names that should be abbreviated, incorrect reporter names, and appropriate full and short-form citations. Word processing software lets you move text around with great freedom as you edit your brief, but it does not alert you when you move that

short form citation several pages ahead of the full form, or cut out the full form completely. Investing in the online version of the Blue Book ensures that you are not following rules from a previous version. Above all, citations should clearly and easily direct the reader to the original source, and citation rules serve that ultimate purpose.

Some editors and authors mark the citations in some way so they can be checked quickly in the final editing process. Highlighting in yellow, or printing the brief out and putting a small mark above every word in the body of the brief and a mark above every character in the citations forces the editor’s brain to catch small mistakes that might otherwise go unnoticed.

2. What would your eighthgrade English teacher say?

One of the most important jobs of the editor is to make the brief easier to read. This process again starts with the details. The editor should keep a sharp eye out for things like weeding out inconsistent tenses, eliminating legal jargon, and identifying hard to read fonts. Be ready to tell writers that, See Page 5 ►

To mediate on Zoom or in person?

"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 ddonovan@nclawyersweekly.com ■ EDITORIAL Heath Hamacher, Reporter hhamacher@nclawyersweekly.com Scott Baughman, Digital Media Manager sbaughman@mecktimes.com ■ ADVERTISING Sheila Batie-Jones, Advertising Account Executive sbatie-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 Bradley Redmond, Director of Production Ryan O’Shea, Production Supervisor

■ BY JEFF TRUEMAN BridgeTower Media Newswires After many months of pandemicrelated lockdown, we now know that Zoom works for mediation.

Simply stated, it’s efficient. When participants don’t have to travel to a physical location in order to mediate a satisfactory outcome to a litigated dispute, they save even more time and money than they did before the pandemic. Travel restrictions and preferences will likely wax and wane because of emerging COVID-19 variants.

If and when participants cannot mediate in person, lawyers and mediators can rely on Zoom to get the deal done.

But are in-person mediations really gone for good? I hope not. When environmental conditions permit, I encourage counsel to think strategically about whether to mediate in person or not.

First of all, do you want an opportunity to build a meaningful relationship with your client? Zoom’s breakout rooms are quick and easy to administer but keep you at a distance physically and emotionally. Your client may need your presence and guidance when considering his or her options.

Second, does your client want or need to experience something more tangible by interacting with the mediator or the other parties? People communicate on multiple levels, consciously and unconsciously. The physicality of a live, in-person mediation can intensify everyone’s attention to the process and the content of the discussions.

When it comes to Zoom, parties (and sometimes counsel and the mediator) often have disparate access to technology. Lagging video and audio can make it impossible to understand what is being conveyed. Even when

the technology works as intended, Zoom cannot accommodate conversational cross-talk.

On the other hand, Zoom allows people to participate from a safe space such as their home and that may foster greater engagement -- or distraction.

Some lawyers believe that the fear of trial can be leveraged more effectively in person. But the parties almost never meet face-to-face (by request of their lawyers). In private caucus rooms, with clients looking on, lawyers push back when pushed.

When it’s easier for parties to move off of their bargaining positions without threats and posturing from the other side, they may be more likely to negotiate strategically, manage risk responsibly, and make good decisions.

This tends to be true whether the process unfolds on Zoom or in person.

Third, do you want to show the other parties that you and your client are genuinely committed to the process and that you respect the other participants (assuming you do)? Everyone knows how easy it is to default to Zoom. So when you offer to show up in person, you make the statement that you’re serious about engaging in a meaningful process.

On the other hand, Zoom makes it easier for decision-makers to participate, assuming that they are not driving, caring for children, or otherwise distracted.

Joint discussion

There is one additional aspect of mediation that I don’t think should be overlooked: the benefits of a joint discussion.

Note that I did not say “joint session.” I’m not looking for reasons to inflame anyone’s emotions and make matters worse between the parties.

And there is no reason to assume or expect that joint sessions will occur at

any time in the process – especially at the beginning. But in my experience, strategic and well-managed joint discussions between select participants (counsel or the parties without counsel) often produce good results.

Yes, Zoom can facilitate effective joint discussions. But joint discussions that happen between participants who are physically in the same room are a bit more effective, in my opinion.

At the far end of the spectrum, the Mac-Daddy of all joint discussions, “breaking bread,” can work miracles.

It turned the tide in a highly sensitive case that occurred during lockdown.

With counsel’s permission, I ordered lunch for the parties and me— no lawyers. The case settled then and there (although getting counsel to stop blaming each other about other things was another matter).

If we used Zoom in that case, I suppose I could have arranged for lunch to be delivered to the parties via Door Dash but the power of archetypally “breaking bread” comes from the personal connection it creates. That cannot be facilitated in a virtual breakout room. Contentious and “impossible” cases require creativity and flexibility, with or without Zoom.

Essentially, mediation is about negotiating and making decisions with the aid of someone outside of the dispute. Zoom is just a tool that serves the mediation process, like other technological tools we use every day such as cell phones, email, PayPal, DocuSign, etc.

Consider how you use technology, along with elements of the mediation process, in order to generate quality information that will help you and your client get the best look at the best set of terms possible.

Jeff Trueman is a commercial mediator. He can be reached at jt@jefftrueman.com.

John Reno, Production Specialist ©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.

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NEWS / 5

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Ma rch 14, 2022

Lawyers see some ambiguities in federal arbitration measure ■ BY BARRY BRIDGES bbridges@lawyersweekly.com Employment lawyers are evaluating the impact of a brand new law that will prohibit employers from mandating arbitration for sexual harassment and sexual assault claims, with some predicting that Congress may ultimately pass similar legislation sending other types of workplace issues to the courtroom.

H.R. 4445, the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” was signed into law by President Joe Biden on March 3. The new law amends the Federal Arbitration Act to prohibit the enforcement of mandatory pre-dispute arbitration agreements at the election of the person alleging the conduct “or the named representative of a class or in a collective action alleging such conduct.”

That option of pursuing a claim via arbitration or the courts is an important one for employees, because it gives them the “power to control the narrative,” said Michael D. Pushee, an employee-side attorney in Rhode Island. An employee who wants to take a public stand against an employer, for whatever reason, can proceed in federal or state court and choose a jury trial.

“Some may not want the publicity or scrutiny associated with alleging claims of sexual harassment.

The privacy that comes with arbitration can provide that,” Pushee said. “With electronic docketing and social media, court filings are now more public than ever.”

Jessica Schachter Jewell, a business-side practitioner with Nixon Peabody in Boston, said that “the usual discourse” is that arbitration is pro-employer and employees favor litigation. But Jewell says she doesn’t think that is always the case, “as arbitration offers more privacy and is faster than going

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no, it is not helpful to write headings in all capitals. It can also be helpful to spot and eliminate the passive voice, unless keeping the attention off the subject of the sentence is advantageous. More generally, if a sentence doesn’t make sense to the editor, it probably won’t make sense to the judge.

Good editing can help avoid that outcome.

This is also a good time to look at the table of contents. A quality table of contents will give the reader a detailed idea of what to expect from the brief. And if someone knows in advance how a brief is organized and how that organization ultimately shapes into the argument, it will be easier for the reader to digest the contents. Judges often read tables of contents and conclusions first to orient themselves to the case.

There are no unimportant parts of a brief because you don’t know how a particular judge attacks the large volume of information she or he has to review each week. Too many briefs have tables of contents thrown together as an afterthought, and those briefs lose a chance to persuade with a big

through the courts.”

The law also explicitly states that any questions on whether it applies to a particular claim will be decided by a court, not an arbitrator, “irrespective of whether the agreement purports to delegate such determination to an arbitrator.”

“That is important because it allows employees who file a lawsuit to remain in federal or state court and have that court decide whether the claims are subject to arbitration,” Pushee said.

That is opposed to a situation in which a lawsuit is filed while a parallel arbitration proceeding is also moving forward just to decide whether arbitration is even permissible. “It streamlines things for the employee,” Pushee said.

Boston’s James W. Bucking, an employer-side attorney at Foley Hoag, characterizes the law on its face as a “fairly narrow carve-out” pertaining to a limited number of claims.

However, he envisions a potential “slippery slope” effect that the law could have on mandatory arbitration provisions in other contexts.

“I don’t see how you can say, for example, that you need to publicly call out sexual harassment but not racial harassment,” Bucking says. “This could serve as a ‘foot in the door.’ It’s really hard to imagine that there won’t be future carve-outs, and I think that racial discrimination and transgender discrimination could be the next developments at the federal level.”

Pushee says that in light of the law’s definition of sexual harassment as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law,” the law would already seem to encompass not only sexual ha-

Michael A. Gamboli, a businessside attorney at Partridge, Snow & Hahn in Rhode Island, describes the law as a “gaping departure” from the otherwise broad protections contained in the Federal Arbitration Act. “The FAA makes it largely impossible [for an employee] to avoid mandatory arbitration and goes so far as to invalidate any state law to the contrary under the Supremacy Clause of the Constitution,” Gamboli says.

He observed that the measure also upends the 2018 U.S. Supreme Court decision in Epic Systems Corp. v. Lewis, in which the justices held that a mandatory arbitration agreement forcing individual arbitration of employment claims and waiving the right to proceed as a class action was enforceable.

The legislation presents a bit of a shift in that federal law is outpacing state laws on the topic, Gamboli says.

“For example, with sexual orientation being a protected class, state law typically evolves more quickly than federal law. Here, only a few states have passed legislation purporting to ban forced arbitration of sexual harassment or other employment claims, so passing the pending legislation would be a rare case of the federal law evolving more quickly than state law in the employment arena,” Gamboli says.

But the three-page law does present some unanswered questions at this early stage. For ex-

ample, Jewell points to workplace claims encompassing allegations of different types of wrongful conduct.

“One wrinkle that Congress didn’t necessarily foresee is that while the act applies to a limited type of employee claim, some cases may have multiple causes of action against an employer,” Jewell said.

“So it’s a very simple bill on the one hand, but I can foresee some logistical issues where there are multiple claims. Will some be subject to arbitration while others go to court? It may be that you have to proceed in two different forums.”

Employers will have to give some thought in reviewing their policies and should be proactive early in deciding on the kind of position they want to take, Bucking said.

On the claim-splitting issue, for example, a company may want to specify that an employee will take a sexual harassment allegation in court with everything else going to arbitration, or may simply decide that everything should go to court.

“Employers may approach it differently, but every company should look at their workforce and the nature of their claims history and decide what they want to do,” Bucking says.

Elsewhere, Pushee identifies ambiguity in Section 3 of the law, which states that it shall apply to any dispute that “arises or accrues on or after the date of enactment of this Act.” He envisioned a scenario in which conduct has been occurring over months or even years, with some happening before the enactment and some after.

“What does that mean? Does the claim arise or accrue when the harassment first happens or does it arise when the employee first complains about it?” Pushee said.

“Does that mean the employee must arbitrate the older conduct, but is allowed to file a federal lawsuit as to the recent misconduct?

There is some uncertainty there.”

picture summary of the case and arguments.

When evaluating whether a brief is easy to read, don’t just point out the problems. A good editor points out the rule that will fix an error and suggests revisions to clarify language.

3. You’ve seen the trees, now look at the forest.

A brief can have perfect, flowing language and ornate, precise citations and still lose the day if it just isn’t persuasive.

The editor once again plays a critical role here. Is there a step in the legal analysis that the writer missed? Did the writer fail to see an argument from another angle?

Is there an absent but critical line of cases? A good editor can also evaluate the overall persuasiveness of the argument and help put together a brief that is sure to convince the court.

The editor should also pay close attention to the organization of the brief. Often, it is a good idea to put the strongest argument first. But some legal issues follow a well-trodden rubric, and courts will expect briefs to follow it.

4. Know thy writer.

The goal of the editor should not be to sand the brief into a one-

size-fits-all, standard-issue submission that anyone could have written. There is always more than one way to write a brief, and often there is vitality in a writer’s unique voice and perspective— good briefs are often not showy, but they are rarely boring. The editor’s job is to enhance and clarify the writer’s voice and the writer’s work. Is the writer someone who prefers a reserved, academic tone?

Is the writer someone who is not afraid of taking an aggressive tone? An editor should be attuned to the writer’s philosophy and work in the same direction.

At the same time, the editor should not be afraid to say so if the tone is not right. It is easy for many lawyers to sound too aggressive and too passionate. Just as easily, writers can sound too divested, as though they are unconvinced by their own arguments. An editor can help the writer find the right balance, in particular if the editor has experience with that court or members of the panel.

5. Stick to your principles, to a point.

Editing is not a job for the faint of heart. The editor must tell the writer, often someone highly credentialed and influential, what

they did wrong or tell them how they could do it better. But good editors are courageous to a fault, and that courage will benefit all involved. Writers do well not to take insult, but to use editing as a means to turn inward and sharpen their own skills. Of course, the writer has the final say, and editors need to be aware of the point when they should stop advocating for their changes. After all, the editor is a part of the writer’s process, not the other way around.

In the end, the court probably will not adopt your carefully crafted and well-written brief wholesale (we’re not selling magic beans here). But a well edited brief will be better than one that is not edited, and the improvement will be worth the investment.

Haynes Hansen is an associate in the Minneapolis office of Robins Kaplan and practices in the areas of commercial litigation, health care and appeals.

Eric J. Magnuson is a partner at Robins Kaplan LLP and served as Chief Justice of the Minnesota Supreme Court from 2008 to 2010.

He has more than 40 years of experience practicing law and he focuses his practice almost exclusively in appellate courts.

Tip of the iceberg?

rassment claims in the traditional sense, but other sex-based harassment claims as well.

“Under Title VII … unwelcome conduct includes harassment based upon sexual orientation, gender identity and pregnancy,” he said. “It appears all of these types of claims would be covered by H.R. 4445.”

Potential uncertainties

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DISCOVERY / Document dump wasn’t in good faith C o nt inu e d f r o m 1 ►

with prejudice and granted default judgment against Greg and Dunhill on all of Tisha’s claims. The only issue reserved for trial was damages.

Greg and Dunhill appealed, arguing that the orders were in error.

But in a unanimous March 1 opinion, Chief Judge Donna Stroud disagreed, affirming the orders almost in their entirety.

“Appellants’ failures to comply with the [2019 orders] were due to their own conduct and circumstances within their control,” Stroud wrote.

“Considering the entire history of this discovery dispute, the multiple orders addressing appellants’ objections and late and deficient responses, as well as Dunhill’s and [Greg’s] deposition testimony, appellants have not shown good faith in appellants’ responses to the discovery requests.”

Sanctions orders stand

The appellants challenged all aspects of the sanctions orders.

The 2018 order required Greg and Dunhill to completely reply to each and every interrogatory and discovery request for production, and incorporated by reference documents designated by Tisha in her discovery requests. The 2018 order also rejected objections to those discovery requests, which the appellants tried to raise again, Stroud said.

“The parties must comply with the order actually entered, regard-

less of what a party wishes the order had required,” Stroud wrote. “What appellants wish the June 2018 order required is not relevant. What matters is the June 2018 order actually identified the documents to be produced, ordered appellants to respond without objection and required appellants to indicate to which discovery request each document responded.”

Considering Tisha’s request for document production, Stroud noted that the appellants produced 129,000 pages of discovery just days before scheduled depositions. The appellants had these documents in their possession, control or custody and the document dump that occurred did not demonstrate a good faith effort at compliance, she said.

As for sanctions for depositions, Stroud identified predicate orders that were violated, eliminating one of the appellants’ arguments, and was not persuaded that Greg was inappropriately sanctioned for invoking his Fifth Amendment privilege against self-incrimination during his deposition.

“The key issue with [Greg’s] argument is that he never invoked his Fifth Amendment privilege during his deposition,” Stroud wrote. “Rather, [he] instead decided to repeatedly—over 100 times according to the unchallenged Findings of Facts—say he ‘can’t comment on that.’ The use of the phrase, ‘I can’t comment on that’ was not language that a person could ‘reasonably be expected to understand as an attempt to invoke the

privilege’ because it does not reference the privilege or even the Fifth Amendment.”

Dunhill’s contention that it was sanctioned because its witnesses couldn’t recall the exact date of events overlooked the extent to which its designees were “completely unprepared” as to certain topics, she added.

“The case law it cites is about whether a witness should be expected to predict the exact questions in a deposition and to have all the information at its fingertips,” Stroud wrote. “Here, Dunhill’s deponents did not have any information on certain topics … Put another way, this was not an imperfect deposition; as to certain topics on which the designees provided no answers, this deposition in effect did not happen at all.”

Inconsistencies remand

addressed

on

Stroud also affirmed the choice of sanctions, as the trial court properly considered lesser sanctions and ultimately rejected them, recounting the previous misconduct by Greg and Dunhill before concluding that lesser sanctions wouldn’t have an impact on the parties.

The court did vacate two aspects of the sanctions order, however, finding them inconsistent. First was the order for an additional deposition for Dunhill, as the majority of the specified topics were issues relevant to liability alone, which the trial court already determined.

“We cannot reconcile this inconsis-

tency because the emphasis on ‘all’ in the order makes it clear the trial court’s intention to include topics unrelated to damages,” Stroud wrote.

“Therefore, we vacate the paragraph ordering Dunhill to sit for another deposition and remand for clarification that Dunhill’s new deposition only cover damages.”

In addition, the trial court erred when it barred Greg from asserting new attorney-client privilege objections. While he could be ordered to sit for a new deposition on damages, the trial court should clarify on remand that he “can assert objections, including privileges, that have not been previously overruled.”

Stroud also found the provisions regarding forensic examination moot. All of the claims Tisha was seeking evidence on related to a dispute on liability issues.

“Since the August 2019 order has already determined all issues on liability, the relief [Tisha] sought via the forensic examination has been granted, and the provisions regarding forensic examination are moot,” Stroud wrote.

Matthew Nis Leerberg of Fox Rothschild in Raleigh, who represented Greg and Dunhill, did not respond to a request for comment.

Neither did Raleigh attorney Matthew D. Ballew of Zaytoun Ballew & Taylor, who represented Tisha.

The 100-page decision is Dunhill Holdings, LLC v. Lindberg (Lawyers Weekly No. 011-043-22). The full text of the opinion is available online at nclawyersweekly.com.

BATSON / Errors added up to require reversal C o nt inu e d f r o m 1 ►

lation of defendant’s constitutional right to equal protection under the Fourteenth Amendment of the United States Constitution, and the trial court clearly erred in ruling to the contrary.”

Harmless error?

In April 2016, Christopher Clegg, a Black man, was convicted of robbery with a dangerous weapon. The prosecutor in the case struck the only two Black women from the jury pool, prompting Clegg to raise a challenge under Batson v. Kentucky, a 1986 U.S. Supreme Court ruling that established a three-step process through which courts analyze racial discrimination claims during jury selection.

Under Batson, a defendant must show that the state exercised a racebased peremptory challenge. If so, the state must offer a facially valid, raceneutral explanation for the challenge.

The trial court must then decide if the defendant has proven “purposeful discrimination.”

Here, prosecutors offered raceneutral reasons for the strikes, stating that juror Aubrey—on whom the Supreme Court focused—was struck because of her body language when being spoken to and because she said “I suppose” when asked whether she could be fair and impartial.

The trial court found that the justifications couldn’t be supported by the record, either because the state misremembered (Aubrey answered “I suppose” when asked if she could focus on the testimony, not be fair and impartial) or the court failed to make an adequate record of her body

language. Ridgeway found that while Clegg showed evidence of statistical disparities regarding the statewide exercise of peremptory challenges by prosecutors, Clegg failed to provide the necessary “essential evidence of purposeful discrimination.”

Ridgeway cited U.S. Supreme Court cases Foster v. Chatman and Miller-El v. Dretke as two featuring “glaring evidence” of racial discrimination, including trick questions and specific policies within a prosecutor’s office of systematically excluding African-Americans from juries.

Clegg took his argument to the state’s Court of Appeals, which rejected it, finding that although Aubrey’s “I suppose” answer was to the question of whether she could remain focused on the trial because of her “day and night” job (rather than whether she could be fair and impartial), prosecutors’ concerns about her failure to make eye contact and their ability to be fair and focused were neutral explanations for the strike.

Four strikes

The Supreme Court disagreed, holding that while no one mistake by the trial court independently required reversal, it had committed four interrelated errors that collectively did.

First, when the trial court rejected both of the state’s race-neutral explanations for the strike, it shouldn’t have overruled Clegg’s challenge because invalid justifications are “functionally identical” to no justifications at all.

“In such circumstances, the only remaining submissions to be weighed—those made by the de-

fendant—tend to indicate that the prosecutor’s peremptory strike was “motivated in substantial part by discriminatory intent,” Hudson wrote.

Second, the trial court held Clegg to an improperly high burden of proof under Batson, which requires only that a defendant show that it’s more likely than not that a peremptory strike was improperly motivated. The trial court recited the proper burden in its decision, but didn’t apply it with fidelity, Hudson found.

“Instead, it looked for smokinggun evidence of racial discrimination similar to what has been present in previous U.S. Supreme Court cases that have found Batson violations,” Hudson wrote.

While the facts of Miller-El and Foster are sufficient to constitute a Batson violation, they aren’t necessary to show that a peremptory challenge was substantially, not solely motivated by discrimination.

Next, the trial court shouldn’t have considered evidence not presented by the prosecution on its own accord. For instance, a white male juror had stated that he could juggle his work duties, whereas Aubrey didn’t indicate any such flexibility.

While the state could have argued that Aubrey’s schedule might impact her ability to focus, it didn’t.

Citing Flowers v. Mississippi, Hudson noted that a Batson challenge doesn’t call for a “mere exercise in thinking up any rational basis.”

“If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false,” Hudson wrote.

Finally, Hudson wrote that the trial court failed to adequately consider disparate questioning and acceptance of comparable white and Black prospective jurors. After questioning the white male and Aubrey and receiving similar responses, the prosecutor used a peremptory strike to remove Aubrey.

The Supreme Court noted that one exchange stands out both for what the prosecutor did and didn’t do. He singled out Aubrey for further questioning regarding her ability to concentrate on the case—though she wasn’t the only prospective juror to indicate logistical challenges to jury service—but didn’t follow up with the white male who indicated that a professional obligation might impact his ability to focus, instead turning to question Aubrey again. This is when Aubrey answered, “I suppose” and “I think so” when asked if she could focus and do what she needed to as a juror.

“Responses that are perfectly normal in jury selection and perhaps even more honest and conversational than a flat ‘yes,’” Hudson wrote. “Indeed, if Ms. Aubrey had answered with a flat ‘yes’ … one can realistically imagine a prosecutor seeking to justify a peremptory strike on the grounds that such an answer was too short, cold, or confident.”

In a concurring opinion, Justice Anita Earls noted that she would further hold that the peremptory strike of the second Black woman was also unlawful because the prosecutor cited her work at a psychiatric hospital as an indication that she could be See Page 7 ►

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sympathetic to the defendant’s mental health issues. But Clegg’s competency had already been established and there was no reason to believe that the jury would have to hear or decide about regarding competency, Earls wrote.

“Significantly, the prosecutor did not ask any other juror if they had experience with mental health issues or competency issues,” Earls wrote.

“These facts alone are sufficient to demonstrate that the prosecutor’s race-neutral explanation is pretextual.”

Chief Justice Paul Newby and Justice Tamara Barringer joined Justice Phil Berger in dissent. Berger wrote that prosecutors can make mistakes during the “back and forth” of a hurried Batson hearing.

“That is entirely understandable, and mistaken explanations should not be confused with racial discrimi-

nation, not honest, unintentional mistakes,” Berger wrote.

But racial discrimination, Hudson wrote, undermines the judicial system’s credibility and tears at the fabric of democracy.

“Accordingly, the Batson framework establishes a process through which we seek to root out any remaining vestiges of racial discrimination in jury selection through the use of peremptory strikes,” Hudson wrote.

Special Deputy Attorney General Amy Irene represented the state. Dylan Buffum of Hillsborough represented the Clegg. Buffum did not respond to a request for comment.

The 91-page decision is State v.

Clegg (Lawyers Weekly No. 010003-22). The full text of the opinion is available online at nclawyersweekly.com.

Follow Heath Hamacher on Twitter @NCLWHamacher

Charlotte to pay $1.07M for land for trolley line ■ BY DAVID BAUGHER Four lawsuits over the city of Charlotte’s taking of adjacent properties near the city’s center have been consolidated into one $1.07 million settlement, the landowner’s attorney reports.

Thomas “Tommy” Odom Jr. of The Odom Firm in Charlotte reports that the city initially Tommy planned to take nearly 12,400 Odom Jr. square feet for a road realignment project and installation of an electric trolley system, more than 9,700 square feet for temporary construction easements, and nearly 7,400 additional square feet for sidewalk and utility easements from a 1.2acre tract owned by TA&S Enterprises of NC, Inc. But Odom, said that an inverse condemnation claim pushed the city to more than double the allotment for the construction easements for the five-year-long project.

“Their contractor used more of the property

than they were supposed to,” Odom said.

The city had initially deposited just $219,200 for the land, which contains a small commercial building that was being rented out for interim purposes. Odom said that the highest and best use of the properties would have been for roughly 87 units of multi-family, mixed-use development.

“The dispute was over how much just compensation they were entitled to for the land they actually took as well as the damages to the property remaining because the temporary construction easement covered most of the property for five years so it delayed the development of it,” Odom said.

The case over the parcel, located about a mile from the Charlotte City Center, was unified into a single matter and eventually settled through mediation in July 2021. Wayne Huckel served as mediator.

Bert Concepcion, senior assistant city attorney, represented the city. A message left with the city attorney’s office requesting comment wasn’t returned.

SETTLEMENT REPORT – EMINENT DOMAIN

Amount: $1.07 million Injuries alleged: Land taking Case name: City of Charlotte v. TA&S Enterprises of NC, Inc. Court: Mecklenburg County Superior Court Case Nos.: 16-CVS-14557, 16-CVS-15203, 16-CVS19259, and 16-CVS-19260 Mediator: Wayne Huckel Date of consent judgement: July 9, 2021 Most helpful experts: Debbie Haskell (MAI appraisal), Walter Fields (rezoning), Lee McLaren (land use, zoning, site planning), and Tom Wright (architect/density study) for landowner; William Morgan, Benjamin Curran, and Thomas Harris Jr. (MAI appraisal) for government Attorney for landowner: Thomas “Tommy” Odom Jr. of The Odom Firm in Charlotte Attorney for government: Bert Concepcion of the Charlotte City Attorney’s office

ASYLUM / Court rejects permissive standard of review C o nt inu e d f r o m 1 ►

ment of Homeland Security reinstated the previous removal order but allowed him to live in Virginia with electronic monitoring. When DHS sought to remove Tomas-Ramos in 2019, he requested a reasonable-fear interview, claiming that Guatemalan gang members had threatened to kill him and his family because he wouldn’t allow them to recruit his son. After agreeing to the interview, DHS mistakenly deported Tomas-Ramos but brought him back to the U.S. for a reasonable-fear hearing when he filed suit.

An asylum officer found TomasRamos’ story credible but determined that he hadn’t established a reasonable fear of persecution or torture because though the threats could indicate that he was harmed on account of a particular social group of his son’s “immediate family members,” that group does not qualify as a “cognizable and protected” particular social group because it “lacks social distinction.”

(Protected characteristics are race, religion, nationality, political opinion, and membership in a particular social group.)

The officer further found no evidence that Tomas-Ramos was being targeted because of his religious beliefs (he’d claimed that gangs would also target him as a churchgoer) and that he failed to establish a reasonable possibility that he would be persecuted by or with the consent or acquiescence of a public official, as required under the CAT. In 2020, an immigration judge reviewed and upheld the ruling, finding no nexus to any protected ground.

The judge also doubted that gang

members would harm Tomas-Ramos for the reasons he expressed, and was skeptical about his claim that he couldn’t avoid harm by relocating within his country.

Family ties

Regarding the government’s position that the “facially legitimate and bona fide reason” standard—laid out by the U.S. Supreme Court in 1972’s Kleindienst v. Mandel—should be applied, the court ruled that in the context of challenging the denial of visas, the executive branch has virtually unlimited discretion to make rules for the admission of noncitizens and that the decisions are generally not reviewable. But that “unfettered” discretion doesn’t translate to the ability to remove a noncitizen pursuant to a reinstated removal order where the individual believes he would be tortured or face the clear probability of persecution on account of a protected ground.

The court further found that had Mandel has no “sensible application” because Mandel claimed that officials had denied his visa because of his political views rather than the reasons stated, contrary to the legitimate and bona fide reason standard. Here, there was no suggestion that TomasRamos was denied asylum for reasons other than those stated by the asylum officer.

The substantial evidence standard of review thus applied, and TomasRamos established the requisite nexus to a protected ground in support of his claim of persecution. Harris noted that the asylum officer found his continued testimony regarding the reason gang members were threatening his life credible, and the 4th Circuit

ruled in 2011’s Crespin-Valladares v. Holder that the family provides a “prototypical example” of a particular social group and that “the threat of death qualifies as persecution.”

Tomas-Ramos met his burden of showing a “reasonable possibility” that he would be persecuted on a protected ground if returned to Guatemala.

“The record compels a finding that Tomas-Ramos was persecuted at least in central part because of his family relationship to his son, which qualifies as a protected ground for withholding purposes,” Harris wrote.

Attacking the kinship ties issue was a “legal mistake,” said Jeremy McKinney, a North Carolina boardcertified immigration law specialist with McKinney Immigration Law in Greensboro. McKinney is not involved in the case but commented on the ruling at the request of Lawyers Weekly. The mistake is one that immigration courts have made time and again, McKinney said, especially after the former administration’s justice department attempted to “walk back kinship ties” as a particular social group.

“Tomas-Ramos prevailed, like several others at the 4th Circuit in recent years, because the persecutors’ motivation for threatening him was the ‘relationship to his son—that is, on account of his membership in his son’s immediate family,’” McKinney wrote in an email.

Another safe place at home

The court also rejected the government’s argument that the immigration judge correctly held that TomasRamos could safely relocate within his country because of the court’s finding

of past persecution.

As the agency’s own manuals make clear, a showing of past persecution gives rise to a presumption of a reasonable fear of future persecution, and that presumption may be overcome only if it is established, by a preponderance of the evidence, that “under all the circumstances, it would be reasonable for the applicant to relocate,” Harris wrote.

Based on her incorrect belief that Tomas-Ramos hadn’t established past persecution, the immigration judge was unable to assess relocation under the proper framework of a man with a well-founded fear, the court determined.

The court also remanded TomasRamos’ torture claim for further consideration because the immigration judge never mentioned it at the hearing or in her written order.

McKinney wrote that seeking review of a negative reasonable fear determination is rare because the noncitizen often accepts a quick deportation rather than enduring prolonged litigation or detention, something that Tomas-Ramos declined to do.

“Tomas-Ramos fought and won,” McKinney wrote.

Michael Lieberman of Kirkland & Ellis in Washington represented Tomas-Ramos. Patricia Bruckner of the U.S. Department of Justice represented the government. Neither attorney immediately responded to a message seeking comment on the case.

The 25-page decision is TomasRamos v. Garland (Lawyers Weekly No. 001-025-22). The full text of the opinion is available online at nclawyersweekly.com.

Follow Heath Hamacher on Twitter @NCLWHamacher

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 M arch 14, 2022

Opinions N.C. COURT OF APPEALS

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N.C. BUSINESS COURT

N.C. COURT OF APPEALS

Workers’ Compensation Lump-Sum Payment – Permanent Disability – Mortality Table – ‘Unusual Cases’ Plaintiff has been awarded permanent disability benefits for the remainder of her life; consequently, it is not possible to know exactly how many future workers’ compensation payments she will receive. However, the Industrial Commission has the authority in unusual cases to grant plaintiff’s request for a lump-sum award, even where the sum of future benefits is not certain, if there is competent evidence tending to show how long the plaintiff was reasonably likely to have received future benefits. In fact, our General Assembly has provided a mortality table, G.S. § 8-46, that may be used for lump-sum award calculations.

The Industrial Commission erred in concluding that a lump-sum award under G.S. § 97- 44 is never allowed where the sum of future installments is uncertain. We remand for reconsideration of plaintiff’s request for a lump-sum award.

Of course, § 97-44 only provides for a lump-sum award in “unusual cases.”

In determining the appropriateness of a lump-sum award, the Commission must be cognizant that the goals of the Workers’ Compensation Act are best accomplished through periodic payments and an award of periodic payments is preferred to prevent the employee from dissipating the means for her support and thereby becoming a burden on society. The fact that the sum of plaintiff’s future benefits is unknown cuts against making a lumpsum award as plaintiff could outlive her life expectancy and, therefore, run out of money for her care, even if properly invested.

Blackwell v. North Carolina Department of Public Instruction (Lawyers Weekly No. 011-041-22, 7 pp.) (Chris Dillon, J.) Appealed from the Industrial Commission. Thomas Ramer for plaintiff; Patrick Wooten for the state. 2022-NCCOA-123

Zoning Municipal – Special Use Permit – Burden of Production – Neighbors’ Uses Petitioner applied for a special use permit to build a halfway house for recently released prisoners transitioning back into society. Petitioner presented more than a scintilla of evidence that its halfway house plans incorporated reasonable elements to protect neighbors’ property values and their ability to develop the uses permitted in the zoning district. Since there was no contrary evidence, the respondent-city was required to issue

13

N.C. COURT OF APPEALS, UNPUBLISHED

the special use permit.

Reversed and remanded.

Under the city’s zoning ordinance, the issuance of a special use permit requires a showing that the proposed special use meets eight specific standards. See Fayetteville, N.C., Code of Ordinances, UDO § 30-2.C.7.e.7. The city council determined that petitioner had not met the ordinance’s Standard 7, so the city council did not consider whether any contrary evidence was presented.

If an applicant for a special use permit meets its burden of production with respect to each ordinance standard and if there is the absence of competent, material, and substantial evidence tending to support a denial, then the city council lacks the authority to deny the application. PHG Asheville v. City of Asheville, 374 N.C. 133, 158, 839 S.E.2d 755, 771 (2020).

Accordingly, where no contrary evidence is presented, a city council’s decision rests on whether an applicant has met its burden of production, which is the same burden borne by a civil plaintiff facing a motion for a directed verdict: more than a scintilla of evidence.

Since this determination is directed toward the sufficiency of the evidence, it involves a legal, rather than a factual, determination. As such, the superior court should have reviewed the city council’s decision de novo, rather than applying whole-record review.

We need not remand this question, as we may apply a de novo review on appeal.

Based on our review of the record, we conclude that petitioner met its burden of production regarding Standard 7, in that its halfway house allows for the protection of property values and the ability of neighboring lands to develop the uses permitted in the zoning district.

Although petitioner did not offer expert testimony regarding the effect its halfway house would have on adjacent property values, Standard 7 does not speak to the effect of a special use on nearby property values.

Petitioner presented evidence that its halfway house would be an attractive, commercial-grade building, maintained to the highest standards and staffed by highly trained professionals. Residents are closely monitored. The building will be screened with landscape buffers, and the parking lot will be fenced and buffered.

Petitioner thus met its burden of production.

No contrary competent, material, substantial evidence came before the city council to counter petitioner’s evidence. It is true that citizens came before the city council expressing their desire not to have a halfway house in their neighborhood. However, none produced testimony or evidence tending to show that petitioner’s evidence was not credible; that there were other reasonable steps petitioner could take to protect property values generally; or that the halfway house would limit the way they could use their properties. And there is nothing in the record

15

tending to show that a member of the city council had specialized knowledge to counter petitioner’s evidence.

Since petitioner produced more than a scintilla of evidence that it satisfied Standard 7, the city council was required to issue petitioner’s permit.

Reversed and remanded.

Dismas Charities v. City of Fayetteville (Lawyers Weekly No. 011-042-22, 11 pp.) (Chris Dillon, J.) Appealed from Cumberland County Superior Court (Mary Ann Tally, J.) Amy Crout, John Cooke Michael Porter for petitioner; Chad Essick, Nicolas Tosco and Karen McDonald for respondent; Amie Sivon and Benjamin Kuhn for respondent-intervenor.

2022-NCCOA-124

Civil Practice Discovery Violations – Rule 30(b)(6) Depositions – Sanctions In a dispute between ex-spouses and the husband’s real estate holding company, the husband’s and his LLC’s many discovery violations support the trial court’s imposition of the extreme sanctions of striking their pleadings and entering default judgments against them, reserving only the issue of damages for trial. Although we uphold the trial court’s order that the husband and LLC sit for new depositions, and although those depositions are appropriately limited to the issue of damages, the trial court erred in barring the deponents from interposing objections, since that would allow the wife to inquire into privileged material.

We affirm the sanctions order in part, vacate in part and remand.

Background

At a hearing that led to the trial court’s March 2019 discovery order, counsel for the husband and his LLC (appellants) acknowledged their failure to fully comply with the trial court’s earlier June 2018 discovery order. The trial court’s March 2019 order faulted appellants for failing to organize 7,000 pages of documents they had produced. Nonetheless, just days before another hearing, appellants produced 129,000 more unorganized pages.

At the N.C. R. Civ. P. 30(b)(6) depositions of the LLC, the LLC’s designated corporate representatives were completely unprepared to address many of the designated topics.

As sanctions, the trial court first struck all of appellants’ pleadings and rule in favor of the wife on all liability issues; it reserved the issue of damages for trial. The trial court further allowed the wife to proceed with all discovery relevant to the issue of damages, including new depositions of appellants.

Discussion

Under N.C. R. Civ. P. 34(b), appellants may have originally had the choice to produce documents as kept in the ordinary course of business, but

the trial court’s June 2018 order removed that choice by requiring them to label the documents by request.

Appellants argue their 129,000page production in May 2019 was merely a supplement to their earlier production with “documents [that] were received from third parties and computer servers...”

However, 29,000 of those pages were emails from the LLC’s employees. The LLC clearly had possession, custody, or control over the email accounts of its own employees. Thus, the 29,000 pages of emails cannot all be supplemental.

The remaining 100,000 pages were bank and credit card statements. Appellants certainly had the legal right to obtain on demand their own bank and credit card statements. Therefore, they had possession, custody, or control of at least some of those 100,000 pages of records before the March 2019 order’s deadline.

The trial court did not abuse its discretion in finding, in the August 2019 order, that the 129,000-page production in May 2019 violated the March 2019 order.

Depositions

The husband contends he was inappropriately sanctioned for invoking his Fifth Amendment privilege against self-incrimination. However, his non-responses did not mention the Fifth Amendment or the privilege against self-incrimination. The husband’s repeated response to the questions of the wife’s counsel—that he could not comment—did not suffice to invoke the Fifth Amendment privilege against self-incrimination.

The husband’s next argument is about his “reluctance or refusal to answer some questions” because of the prior protective order requiring the wife’s counsel to remain six feet away from him. While the prior protective order covered “Counsel for Plaintiff,” which included one of the wife’s attorneys who deposed the husband in this case, it is clear from the prior protective order that the conflict which led to the protective order involved another attorney who was not present at the husband’s depositions in this case.

Given the relevant attorney from the past conflict was not even present at this deposition, we reject any argument by the husband that this past history in any way impacts how we should view his “reluctance or refusal to answer some questions…”

The LLC’s Rule 30(b)(6) designees were unprepared on the noticed topics. The LLC cannot claim the two days and 700 pages of testimony from its witnesses show its compliance, either. The trial court specifically found that designee Lynch, “intentionally and repeatedly gave evasive and longwinded responses to interfere with the deposition time available…”

Although a 30(b)(6) designee may refer to documents produced in litigation to answer a question, Lynch used a vague reference to potential documents in place of answers.

We find no error by the trial court

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with regard to any of its sanctions for appellants’ deposition misconduct and failures.

Sanctions

The trial court indicated again that it had considered all sanctions and gave its reasoning for why lesser sanctions were not enough. The trial court recounted in detail why harsh sanctions were necessary in this case, thereby showing why otherwise disfavored sanctions such as default judgment and dismissal were warranted.

Rule 37(b)(2) explicitly authorizes a trial court to make an order that “any other designated facts shall be taken to be established for the purposes of the action” without any caveat that those facts must not be contradicted by some of the evidence in the record.

We reject the LLC’s argument that the trial court erred because some of the facts it established might conflict with some evidence in the record.

The trial court’s order of additional depositions properly applies to damages issues rather than liability.

We find, however, internal inconsistency with the order for an additional deposition for the LLC. The August 2019 order requires the LLC to sit again for its Rule 30(b)(6) “for all previously noticed topics…” The previously-noticed topics included issues relevant to liability alone.

We remand for clarification that the LLC’s new deposition only cover damages.

The husband contends the August 2019 order erred by ordering him to sit for another deposition and answer all questions from the wife’s counsel without objection. The husband argues this language would require him to answer questions even on topics that should be protected by privileges such as attorney-client privilege.

A court cannot pre-determine that a person cannot claim attorney-client privilege as doing so would amount to a forced waiver by the trial court rather than the client. Therefore, we vacate the paragraph ordering the husband to sit for a new deposition on damages and answer all questions without objection. On remand, the trial court will clarify that, in his deposition on damages, the husband can assert objections, including privileges, that have not been previously overruled.

Affirmed in part, vacated in part and remanded.

Dunhill Holdings, LLC v. Lindberg (Lawyers Weekly No. 011-04322, 100 pp.) (Donna Stroud, C.J.) Appealed from Durham County Superior Court (Orlando Hudson, J.) Matthew Nis Leerberg and Kip Nelson for plaintiff; Matthew Ballew, Robert Zaytoun, John Taylor and Cole Williams for defendant. 2022-NCCOA-125

Administrative Attorney’s Fees – Gatekeeping Role – Final Agency Decision – ‘Substantial Justification’ In its gatekeeping function, the respondent-commission determined that petitioners’ challenge to a bridge project was frivolous. This was a final agency decision, so when petitioners successfully challenged the decision in superior court, petitioners were prevailing parties who could seek attorneys’ fees under G.S. § 6-19.1(a).

However, the superior court’s findings as to whether the commission acted with “substantial justification” are insufficient.

We vacate the award of attorneys’

fees and remand for further proceedings.

Our dissenting colleague raises his own issues with the trial court’s order, none of which are advanced by the commission.

First, the dissent argues that the trial court lacked subject matter jurisdiction over this fee petition because “Petitioners did not submit a request for attorney’s fees initially to the Commission, in their petition for judicial review, or to the OAH at any time.”

Petitioners filed their petition for attorneys’ fees on 17 June 2020. That petition was timely filed within 30 days after the expiration of the time to appeal the trial court’s order and thus within 30 days after “final disposition” of the matter.

Our dissenting colleague next asserts that the trial court, in a judicial review proceeding, sits as “an appellate court” and thus the superior court “could not find the requisite facts to award the attorney’s fees.” This is wrong. Our appellate courts repeatedly have held that trial courts, sitting in their “appellate” role in judicial review proceedings, have the authority to later award attorneys’ fees under § 6-19.1 and to make the corresponding fact findings necessary to support that award.

Our dissenting colleague also contends that the “superior court divested jurisdiction when the 27 April 2020 judicial review remand order was entered.” Again, this is wrong.

As discussed above, § 6-19.1’s plain language requires a prevailing party seeking recovery of attorney’s fees to “petition” for them. The petition must be filed within 30 days after final disposition of the matter. The use of a petition for attorneys’ fees within the 30day window acts as a “jurisdictional prerequisite” that confers subject matter jurisdiction on the trial court to address the request for attorneys’ fees, notwithstanding that the court no longer has jurisdiction over the matter that gave rise to the fee request.

Our dissenting colleague also argues that a provision in G.S. Chapter 150B authorizing administrative law judges to award attorneys’ fees in contested case proceedings preempts § 6-19.1 in this case. Our colleague’s argument is flatly inconsistent with the text of § 6-19.1.

The commission argues that § 6-19.1 does not apply because the petitioners were not “prevailing parties” under the statute. Petitioners fall squarely into the definition of a prevailing party under the merits test. The commission exercised its gatekeeper authority and denied petitioners the right to challenge the underlying regulatory action in an administrative proceeding on the ground that petitioners’ challenge was frivolous. This was a final agency decision.

Petitioners then sought judicial review in the courts, and the trial court rejected the commission’s determination and ordered that petitioners could pursue their administrative challenge to the permit. Under the merits test, petitioners were the prevailing parties in that judicial review proceeding because they succeeded in the relief they sought when they petitioned for judicial review.

Nevertheless, the commission’s stated reasons—although wrong—on their face are ones that a reasonable person could find satisfactory or justifiable. We vacate the trial court’s order and remand for further proceedings.

On a final note, the trial court reviewed the attorneys’ fees request, including the invoices and accompanying affidavits, and made a fact

finding that the fees were “fair and reasonable.” To avoid any uncertainty on this question, we hold that the attorneys’ fee request does not raise any ethical concerns under the Rules of Professional Conduct.

Vacated and remanded.

Dissent

(Tyson, J.): The superior court acted as a reviewing appellate court and was without jurisdiction to enter an award for attorney’s fees because (1) petitioners did not seek or raise the issue of attorney’s fees before the commission or the Office of Administrative Hearings (OAH) prior to dismissal of its contested case, (2) an appellate court cannot find facts to support an award of attorney’s fees, and (3) the superior court was divested of jurisdiction in this contested upon remand to the OAH. Presuming the superior court had retained or possessed jurisdiction, upon remand petitioners’ motion must be dismissed because it does not allege any statutory basis to award attorney’s fees. The superior court lacked any authority to award petitioners’ attorney’s fees under these facts.

Batson v. Coastal Resources Commission (Lawyers Weekly No. 011-044-22, 37 pp.) (Richard Dietz, J.) (John Tyson, J., dissenting) Appealed from Carteret County Superior Court (Charles Henry, J.) Clark Wright for petitioners; Mary Lucasse for respondent. 2022-NCCOA-122

Trusts & Estates Will Caveat – Mootness – Companion Case – Declaratory Judgment This will caveat seeks the same outcome as the declaratory judgment action in the companion case in this consolidated appeal, Parks v. Johnson, (2022-NCCOA-129). Our decision in Parks renders resolution of this caveat without practical effect, as the caveators will take through intestacy independent of the validity of the challenged will. Accordingly, we dismiss this appeal as moot.

In re Magestro (Lawyers Weekly No. 011-045-22, 7 pp.) (Lucy Inman, J.) Appealed from New Hanover County Superior Court (George Frank Jones, J.) Mary Euler and Joseph McGuire for caveators; David Ervin and Rick Graves for propounder. 2022-NCCOA-127

Domestic Relations Adoption – Constitutional – Due Process – Biological Father Although the respondent-biological father was deceived by the child’s mother into believing the child was not his, once he learned he was the child’s biological father, he failed to act to preserve his constitutional right to parent.

The trial court properly found and concluded that respondent has no statutory or due process rights to provide or withhold consent to petitioners’ adoption of the child, C.H.M. While being duped and deceived by the child’s mother into initially believing the child was not his, once he learned C.H.M. was his child, respondent remained “passive” in developing a relationship with his child. Respondent testified he did not know how to contact petitioners. However, he and his parents had visited C.H.M. in petitioners’ home when he was in North Carolina for his deposition in this mat-

ter. He acknowledged he had mailed no notes, cards, nor gifts to C.H.M. after his one visit with her in 2014.

Respondent purchased a crib, which remained in his home in Illinois, and gifts which he did not send to C.H.M., despite knowing petitioners’ and the adoption agency’s addresses. Respondent provided no evidence that Petitioners or the agency thwarted him in contacting them or C.H.M. during this period of time.

The trial court’s findings focus on respondent’s lack of “demonstrated parental responsibility” during the period immediately after respondent learned he was the father of C.H.M and was served with notice of the pendency of the adoption petition in November 2013. Respondent timely filed his objection to the adoption petition in December 2013. Respondent made one visit with C.H.M. in March 2014, which coincided with a court appearance.

Other than savings in he put into a lockbox and the purchase of a crib and some items—all of which he kept in Illinois—respondent did not begin any support payments, make or maintain contacts, or make any other attempts to parent C.H.M. until 30 January 2015, after petitioners had filed their termination of parental rights action in November 2014.

Respondent’s later conduct, while laudable, does not remove or excuse his non-actions for nine months in 2014, where for all intents and purposes he walked away from his responsibilities after visiting his child in petitioners’ home. Respondent’s conduct after the 2014 visit failed to preserve his entitlement to the constitutional protection of the family unit guaranteed by the Due Process Clause.

The trial court properly found and concluded that respondent has no statutory or due process rights to withhold consent to petitioners’ adoption of C.H.M. Affirmed.

Dissent

(Gore, J.): I join the majority opinion, except for the portion holding that respondent has no due process right to withhold consent to the adoption.

The majority’s review of respondent’s conduct after he knew C.H.M. was his biological child does not go far enough. It does not scrutinize the trial court’s order to establish that petitioners were not culpable for conduct that impeded respondent from contacting C.H.M. from March of 2014 until January 2015.

There is also an argument that the biological mother’s purposeful denial and refusal to allow respondent DNA testing hindered his due process rights to a degree that it mandates his right to object or withhold his consent to adopt.

Respondent attempted to assert his constitutionally protected rights but was hindered along the way by the fraudulent actions of the child’s biological mother. Depriving respondent of his right to raise his biological child without proper review, especially considering the fact he attempted to assert his rights and duties as a parent before and immediately after the child was born and before he knew with any degree of certainty that C.H.M. was his biological child, is not in line with the paramount rights and protections afforded to biological parents by the U.S. Constitution.

In re C.H.M. (Lawyers Weekly No. 011-046-22, 19 pp.) (John Tyson, J.) (Fred Gore, J., concurring in part & dissenting in part) Appealed from Wake County District Court (Debra

10 / OPINION DIGESTS Sasser, J.) Michael Harrell for petitioners; Jonathan McGirt for respondent. 2022-NCCOA-126

Domestic Relations Custody & Equitable Distribution – Settlement Stipulations – Withdrawal of Consent Although the parties negotiated a settlement of most of their disputed issues in 2017, upon inquiry by the trial judge, the record only reflects that the plaintiff-husband gave his affirmative assent to the settlement agreement; the record is silent as to the defendant-wife’s response to the trial judge’s inquiries. A party to a stipulation for settlement can withdraw their consent to the agreement before the court enters an order on the matter, so long as the stipulations for settlement are not reduced to writing. Since the parties never provided the trial court with a signed settlement agreement, the trial court properly resumed trial from the point when the July 2017 trial was stopped for the parties to enter their stipulations for settlement.

We affirm the trial court’s child custody and equitable distribution orders.

Maddukuri v. Chintanippu (Lawyers Weekly No. 011-047-22, 8 pp.) (Fred Gore, J.) Appealed from Mecklenburg County District Court (Gary Henderson, J.) Preston Odom, Jonathan Feit and Caroline Weyandt for plaintiff; Brione Pattison for defendant. 2022-NCCOA-128

Trusts & Estates Wills – Divorce – Residuary Clause – Condition Precedent The testator executed his will on his first anniversary in 1983 but then divorced his wife in 2016, two years before he died. G.S. § 31-5.4 therefore revoked the will’s clauses “in favor of” his wife; however, the condition precedent to the will’s residuary clause— that the wife predecease him—was not “in favor of” the wife. Since the wife survived the testator, the condition precedent was not satisfied, leaving the residuary clause inoperable.

The testator’s estate passes via intestacy to his siblings, rather than via the residuary clause.

We reverse the trial court’s ruling in favor of the defendant-residuary beneficiary.

Item Two of the testator’s will left his entire estate to his wife, Carol. If she predeceased him, Item Three provided that the estate was to pass to their children. The couple never had children.

Item Four of the will said that, if Carol predeceased the testator and they had no children, the estate was to be divided in two equal shares: (1) half to the decedent’s mother-in-law or her descendants per stirpes and (2) half to his parents or the survivor of them. If both his parents predeceased the testator, their share was to go to their descendants per stirpes.

Both the testator’s parents and his mother-in-law predeceased him. The testator was survived by four siblings, Carol, and Carol’s sister, the defendant herein.

The trial court adopted defendant’s view of § 31-5.4 and deleted all mention of Carol from the will. This eliminated the condition precedent of Carol predeceasing the testator from Item Four, so the trial court ruled that half of the estate went to defendant and

half to the testator’s four siblings.

However, § 31-5.4 plainly provides that divorce revokes only those provisions in a will which are “in favor” of a former spouse. We cannot interpret the statute to nullify all provisions in a will which simply refer to a former spouse.

Contrary to defendant’s assertion, the provision in Item Four of the will, “in the event my wife, Carol L. Magestro, be not living at the time of my death,” is a condition precedent that cannot be interpreted to favor Carol, because the residuary is operative only if Carol has died. Necessarily, she would not be alive to benefit from the estate passing to her relatives.

Because Carol survived the testator, the condition precedent went unfulfilled and the residuary devise under Item Four fails.

G.S. § 31-42(b) says, “Unless the will indicates a contrary intent ... if a devise otherwise fails, the property shall pass to the residuary devisee or devisees in proportion to their share of the residue. ... If there are no residuary devisees, then the property shall pass by intestacy.”

Intestate distribution is appropriate where a residuary clause is expressly subject to an unfulfilled condition. Further, in the absence of a manifest intention to the contrary, a will is to be construed in favor of beneficiaries appearing to be the natural or special objects of the testator’s bounty.

Defendant argues § 31-42(b) is inapplicable because the trial court correctly concluded Carol’s death was not a condition precedent. If Carol’s death was not a condition precedent, defendant contends, the residuary estate does not lapse and the devisees under Item Four, namely defendant and the testator’s siblings, inherit the residuary.

The will provides a residuary should Carol predecease the testator (and should he also have no children).

The testator manifestly and unequivocally expressed an intention contrary to distribution under the residuary clause by including a definite condition precedent––that Carol predecease him. As the will was written, the testator only intended the residuary devise to operate if Carol did, in fact, predecease him. She did not, and the condition went unfulfilled.

Because the gift in equal shares to the testator’s “mother-in-law ... or her descendants per stirpes” and “my mother and father ... or ... their descendants per stirpes” fails, and no other residuary clause exists, the testator’s estate passes by intestacy to his siblings.

Reversed.

Parks v. Johnson (Lawyers Weekly No. 011-048-22, 12 pp.) (Lucy Inman, J.) Appealed from New Hanover County Superior Court (Stanley Carmical, J.) Mary Euler and Joseph McGuire for plaintiffs; David Ervin and Rick Graves for defendant.

2022-NCCOA-129

Contract Bail Bond – First Impression – PreBreach Surrender – New Bond – Estoppel When the defendant-surety surrendered a criminal defendant (plaintiff Snow) because of a suspected breach of the bail undertaking—i.e., prebreach—the surety should have returned the premium to Snow within 72 hours pursuant to G.S. § 58-71-20.

Instead, a judge ruled a few days later that Snow had not violated his bond,

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the surety wrote a new bond without charging Snow a new premium, and Snow stayed out on bond for nine more months before pleading guilty and only then demanded a refund of his premium. The doctrine of quasiestoppel bars plaintiffs’ claim for a refund of the premium.

We affirm summary judgment for the surety.

Facts

Snow was out on bond, subject to electronic monitoring, and on a preapproved trip to Florida for medical treatment when his electronic-monitoring battery died for a couple of hours. A deputy returned Snow to jail in North Carolina.

The surety filed a surrender form, stating that it was for a “pre-breach surrender,” requesting exoneration from the bond obligation. Under § 5871-20, the surety was required to refund the $1 million premium to Snow within 72 hours, but it did not.

Five days later, a judge ruled that Snow had not violated the conditions of his pretrial release. The following day, the surety posted a re-written bond without charging Snow a new premium, and Snow was released.

Nine months later, Snow pled guilty to one charge, and the state dismissed the other charges against him.

Defense counsel informed the surety that the criminal matters had been resolved, and the surety released Snow’s $15 million in collateral.

The following month, Snow for the first time took the position that the surety was required to return the collateral within 72 hours of the filing of the surrender form and that he was entitled to a refund of his bond premium. The surety refused, and Snow, his son, and their family business filed this action.

Estoppel

Under a quasi-estoppel theory, a party who accepts a transaction or instrument and then accepts benefits under it may be estopped to take a later position inconsistent with the prior acceptance of that same transaction or instrument. Quasi-estoppel may operate without detrimental reliance on the part of the party invoking the estoppel. The acceptance of benefits precludes a subsequent inconsistent position, even where acceptance is involuntary, arises by necessity or when a party voluntarily accepts a benefit in order to avoid the risk of harm.

Seeking recovery of the bond premium for the original bond almost a year after receiving the benefit of the rewritten bond amounts to taking fundamentally inconsistent positions in connection with the bond. Plaintiffs essentially seek to retain the benefit of the surety’s services without paying anything for this benefit.

Seventy-two hours after the surrender form was filed, having not received a return of the bond premium, if plaintiffs or their counsel in fact believed that they were entitled to a return of the bond premium, the time was ripe to inform the surety of that view. Neither Snow nor anyone acting on his behalf communicated in any way to the surety that Snow believed he was owed $1 million by the surety at that time.

Plaintiffs dispute whether Snow, or anyone acting on his behalf, expressly authorized the surety to re-write the bond. However, it is undisputed that Snow received the benefit of the re-written bond; he was released from custody the same day the bond was re-written. Moreover,

voluntariness is not an element under the doctrine of quasi estoppel.

Snow’s receipt of the benefit of his bargain with the surety by being returned to the same position he occupied before the suspected breach of the conditions of his pretrial release, coupled with plaintiffs’ silence about their entitlement to a return of the bond premium or $15 million in collateral for almost a year, estops plaintiffs from seeking return of the bond premium or any other relief requested in their complaint.

Where the only opinions plaintiffs’ expert, a retired judge, would have offered were that a particular legal conclusion or standard had or had not been met, and where the expert’s opinions were based entirely on his personal knowledge and experience and were not the product of reliable principle and methods applied reliably to the facts of the case, the trial court did not err in disqualifying plaintiffs’ expert.

Affirmed.

Snow Enterprise, LLC v. Bankers Insurance Co. (Lawyers Weekly No. 011-049-22, 29 pp.) (Darren Jackson, J.) Appealed from Brunswick County Superior Court (Jason Disbrow, J.) Robert Edmunds, Kip Nelson, Elizabeth Brooks Scherer, Grady Richardson and Jennifer Carpenter for plaintiffs; Lori Jones for defendant. 2022-NCCOA-130

Criminal Practice Search & Seizure – Wrecked Vehicle – Missing Driver – Meth Possession Where a driver, Kyle, had fled the scene of an accident on foot, but where his passenger did not know Kyle’s last name, officers were justified in searching the wrecked car for Kyle’s ID. The trial court properly denied the defendant-passenger’s motion to suppress the evidence found in the officers’ search of the wrecked car, which belonged to her parents.

We find no error in defendant’s convictions of trafficking in methamphetamine by possession and possession of methamphetamine with the intent to sell or deliver.

Officers had reasonable suspicion to search the vehicle to verify the claims of another occupant and custodian of the vehicle to determine that alleged driver’s identity. Kyle’s identification may not have been inside the vehicle, but there was no other way for the officers to try to find information to identify the driver if the passenger and other witnesses did not know or would not provide his full name. The identification of the purported driver may have reasonably been determined from looking inside the wrecked vehicle.

In any event, the officers were justified in searching the wrecked vehicle to get it out of the ditch for an inventory or for officer safety.

Defendant argues the court failed to instruct on the knowledge element of the illegal drug charges. The jury was instructed that the state must prove defendant “knowingly” possessed methamphetamine. The trial court adequately advised the jury of the knowledge requirement by stating, “a person possesses methamphetamine if the person is aware of its presence ... and intent to control the disposition or use of that substance.”

The trial court properly instructed the jury that the state had to prove beyond a reasonable doubt that defendant knowingly possessed meth-

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12 / OPINION DIGESTS amphetamine.

No error.

Dissent

(Inman, J.): One of the officers at the scene of the accident was familiar with a man named Kyle who fit the description given by witnesses.

While there may have been probable cause to justify the issuance of a warrant by a magistrate, no exception to the warrant requirement authorized the warrantless search of the vehicle on the scene of the single-car accident.

The majority relies on the state’s argument that the search of the vehicle was incident to Kyle Lytle’s arrest and therefore authorized without a warrant, but Lytle was not arrested anywhere near the vehicle, and he was not arrested at the time of the search. Because Lytle was not present on the scene at the time of the search, there was no arrest to justify, even retroactively, the warrantless search of the vehicle.

Nor was the search of the vehicle authorized under the automobile exception to the warrant requirement, as the state contends. The automobile exception exists because the inherent mobility of motor vehicles creates the risk that evidence of criminal activity will be removed from the scene before officers have time to obtain a search warrant. In this case, the vehicle was in a ditch and inoperable, negating the automobile exception’s purpose.

The other theories offered by the majority to justify the warrantless search of the vehicle—officer safety, an inventory search, or search for

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other people—are nowhere to be found in the evidence, the officers’ testimony at the motion to suppress hearing, in the trial court’s findings on the motion to suppress, or in the state’s arguments presented on appeal. It is not within the province of this court to create the probable cause which might have existed to justify the warrantless search of the vehicle. I would hold that the warrantless search of the vehicle was unconstitutional.

Because the warrantless search of the vehicle was unconstitutional, the evidence discovered in the black and green Nike bag found in the vehicle should be suppressed under the exclusionary rule.

I would also hold the trial court erred in failing to further instruct the jury about defendant’s knowledge as prescribed by our pattern jury instructions. But given the ability of defendant’s trial counsel to present to jurors the argument that defendant did not know the black and green Nike bag contained methamphetamine, and considering all other evidence of record, as well as the jury’s sole province to assess the credibility of all witnesses, I do not conclude that the error had a probable impact on the jury’s verdict.

State v. Julius (Lawyers Weekly No. 011-050-22, 22 pp.) (John Tyson, J.) (Lucy Inman, J., dissenting in part & concurring in result in part) Appealed from McDowell County Superior Court (Thomas Davis, J.) William Walton for the state; Hannah Hall Love for defendant. 2022-NCCOA-135

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Criminal Practice Admission of Fact – Other Elements – Attempted Murder – Jury Instructions – Kidnapping Defendant chose to testify, and he repeatedly admitted that he had beaten the victim. During his closing argument, defense counsel merely repeated defendant’s own testimony and insisted that adequate provocation justified defendant’s use of force and that provocation negated evidence of premeditation and deliberation, which were elements of the charge of attempted first-degree murder. As to the assault charges against defendant, each required the state to provide additional evidence, and defense counsel made no statements which could be construed as concessions to the remaining elements necessary for the state to prove each charge of assault. The trial court did not err by allowing defense counsel to make the challenged statements without first conducting an inquiry into defendant’s consent.

We find no error in defendant’s convictions for attempted first-degree murder, first-degree kidnapping, assault with a deadly weapon with intent to kill or inflict serious bodily injury, assault inflicting serious bodily injury, assault by strangulation and violation of a domestic violence protective order.

Defense counsel’s opening statement did not concede guilt. In context, her reference to a “brutal, calculated assault” referred to the victim’s stabbing of defendant, not defendant’s beating of the victim.

Even though the victim stabbed defendant in the chest with a knife, since (1) defendant and the victim had a long history of defendant threatening and abusing the victim; (2) during his September 29, 2018, assault on the victim, defendant threatened that he “was going to chop [her] up where nobody would find [her] body”; (3) defendant’s assault on the victim on September 29 was hours-long and excessively brutal; and (4) defendant testified that he knew what he was doing and could have left at any time, defendant was not entitled to a jury instruction on attempted voluntary manslaughter as a lesser-included offense of attempted first-degree murder.

As to the confinement element of kidnapping, the state showed that, at some point during the night of the assault, defendant tried to re-hang the bedroom blinds so nobody could see what was going on inside. The victim ran for the door of her bedroom and was almost out when defendant grabbed her by the hair and pulled her back in and started beating her again.

The victim was thus prevented from leaving her apartment and denied the opportunity to reach safety, subjecting her to further abuse. The trial court did not err in denying defendant’s motion to dismiss the charge of first-degree kidnapping.

No error.

State v. Guin (Lawyers Weekly No. 011-051-22, 26 pp.) (Jefferson Griffin, J.) Appealed from Johnston County Superior Court (Keith Gregory, J.) Brian Rabinovitz for the state; Joseph Lattimore for defendant. 2022-NCCOA-133

Criminal Practice � LawCareer@liberty.edu � (434) 592-6068 � Liberty.edu/Law /LibertyUniversityLaw

Municipal Ordinance – Sentencing – Release Pending Appeal Defendant was convicted under G.S. § 14-4 for violating Fayetteville

Ordinance § 22-16(a) because he failed to remove metal objects from his yard after due notice; he had one prior conviction. Because “the judgment for a person convicted of a Class 3 misdemeanor who has no more than three prior convictions shall consist only of a fine,” G.S. § 15A-1340.23(d), the trial court erred by sentencing defendant to a 15-day term of incarceration and 18 months’ probation. Furthermore, because § 22-16 does not expressly state that the maximum fine for a violation of § 22-16(a) is greater than $50, the maximum fine for defendant’s violation of § 14-4 is $50. The trial court thus erred by imposing a $100 fine.

We find no error in defendant’s conviction under § 14-4 for failing to bring his property into compliance with a local ordinance. However, we vacate defendant’s sentence and remand to the trial court for resentencing.

The criminal summons referred to city code § 22-16(a)(1), which requires property owners to keep their premises free from breeding grounds for insects and pests. It is § 22-16(a)(6) that requires property owners to keep their premises free from dangerous metal items and appliances. Nevertheless, the summons alleged that defendant after due notice failed “to remove all metal items from the yard…” This allegation indicated to defendant the proper city ordinance subsection of which he was in violation. The summons was not defective in that defendant had sufficient notice of the charge against him.

Defendant also argues that the trial court erred by imposing upon him conditions of pretrial release pending appeal.

A defendant whose guilt has been established in the superior court who “has filed an appeal from the judgment entered may be ordered released upon conditions in accordance with the provisions of this Article.” G.S. § 15A-536(a). “If release is ordered, the judge must impose the conditions set out in [G.S. §] 15A-534(a) which will reasonably assure the presence of the defendant when required and provide adequate protection to persons and the community.” G.S. § 15A-536(b).

Section 15A-534(a) authorizes a judicial official to “release the defendant upon his execution of an unsecured appearance bond in an amount specified by the judicial official” and to “place restrictions on the travel, associations, conduct, or place of abode of the defendant as conditions of pretrial release.” Section 15A-536 applies to a defendant who is not in custody and whose probation has been stayed pending appeal.

Accordingly, the trial court did not err by imposing the following conditions of pretrial release upon defendant, pending the disposition of his appeal: post a $500 secured bond; not violate any criminal law; not violate any city code, ordinance, rule, or regulation; and allow the city inspectors to inspect defendant’s property upon 48 hours’ written notice either delivered to defendant or posted on his door.

No error in part; vacated and remanded in part.

State v. Hales (Lawyers Weekly No. 011-052-22, 15 pp.) (Allegra Collins, J.) Appealed from Cumberland County Superior Court (James Ammons, J.) Colin Justice for the state; Joseph Adams Hales, pro se.

2022-NCCOA-134

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I Ma rch 14, 2022

Criminal Practice Probation Revocation – Criminal Charge Where the state showed only that defendant had been arrested and charged with a crime while on probation, not that he had committed a crime, the trial court abused its discretion in concluded a crime had been committed and revoking defendant’s probation.

Reversed.

State v. Graham (Lawyers Weekly No. 011-053-22, 4 pp.) (Fred Gore, J.) Appealed from Wayne County Superior Court (Paul Jones, J.) Benjamin Szany for the state; Jason Christopher Yoder for defendant. 2022-NCCOA-132

Criminal Practice Sentencing – Habitual Felon Enhancement – Sex Offender Enhancement – First Impression Defendant filed Alford pleas to two Class H felonies and admitted he had attained habitual-felon status, thereby requiring that he be sentenced as a Class D felon. Even though defendant’s Class H felonies were reportable convictions subject to the sex-offender registry requirement, the habitualfelon sentencing enhancement did not convert the Class H felonies into reportable Class B1 through E felony convictions which would have been subject to further sentencing enhancement under G.S. § 15A-1340.17(f).

We vacate defendant’s sentence and remand for resentencing.

The trial court erroneously determined that defendant’s enhanced Class D sentence was a Class D conviction for purposes of administering the sentencing enhancement pursuant to § 15A-1340.17(f). The habitualfelon sentencing enhancement did not convert the lower-level felony for which defendant was convicted into the higher-level felony for which he was punished.

Therefore, because defendant’s contemporaneous conviction of being a habitual felon did not reclassify his Class H felony convictions to a Class D felony conviction, the trial court erred in applying the § 15A-1340.17(f) sentencing enhancement. The fact that defendant was sentenced as a Class D felon for his Class H felony convictions does not mean that the actual, underlying offenses were transformed into Class D felonies simply because of his status as a habitual felon. As a result of this error, defendant received a sentence “for a duration not authorized

by G.S. 15A-1340.17 ... for [his] class of offense and prior record or conviction level.” G.S. § 15A-1444(a2)(3).

By its plain language, § 15A1340.17(f) applies to those defendants convicted of and sentenced for a Class B1 through E felony that is a reportable conviction subject to the sex-offender registry requirement, rather than those convicted of a lower-level felony who happen to be sentenced at a Class B1 through E level due to a habitual-felon status enhancement.

Remanded for resentencing.

State v. Essick (Lawyers Weekly No. 011-054-22, 12 pp.) (Valerie Zach-

ary, J.) Appealed from Surry County Superior Court (Daniel Kuehnert, J.) Heather Freeman for the state; Lauren Miller for defendant. 2022-NCCOA-131

Criminal Practice Probation Revocation – New Offense – Competent Evidence – Breaking or Entering In order to prove that defendant violated his probation by committing a new offense, the state only needs to present competent evidence so as to reasonably satisfy the trial court that a violation of probation occurred. A breaking or entering is wrongful when it is without the consent of the owner or tenant or other claim of right.

Here, the trial court was presented with the following evidence. The state and defendant stipulated that when an apartment’s property manager arrived at a vacant apartment, a male and a woman later identified as Daniah Richardson were in the apartment’s back room. A police officer testified that defendant was known to associate with Richardson “on a routine basis.” The officer recovered several prints from the point of entry, a window in the rear of the residence. One of the prints was identified as belonging to defendant. The police officer spoke with the apartment’s property manager, and based on this discussion, formed the opinion that defendant did not have permission to be inside the apartment. Moreover, defendant lived next door to the apartment.

Competent evidence exists that

defendant willfully violated his probation by committing a new offense of misdemeanor breaking or entering.

We affirm the revocation of defendant’s probation.

State v. Pettiford (Lawyers Weekly No. 011-055-22, 9 pp.) (April Wood, J.) Appealed from Person County Superior Court (John Dunlow, J.) Caden William Hayes for the state; Amanda Zimmer for defendant.

2022-NCCOA-136

N.C. BUSINESS COURT

Corporate LLC Operating Agreements – Member’s Death – Dissolution – Estate’s Interest Although there were only two members of the three defendant-limited liability companies at the time their founder died, their operating agreements included a member’s death as a mandatory dissolution event “unless within 90 days following the occurrence, the Members mutually agree in writing otherwise.” Once the founding member died, the surviving member could not “mutually agree” with himself to continue to operate the LLCs. The court grants the defendantestate’s motion for judgment on the pleadings and dissolves the defendant LLCs. Nothing in the language of the operating agreements establishes that the parties intended for the number of members in the LLCs to be capped at

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14 / OPINION DIGESTS two. Indeed, defendant Wendover Donuts, LLC, had a third member for a short period of time.

Although a jury might decide that some of the provisions of the operating agreements could be read to transfer the interest of a deceased member to his estate, but the court does not find the language sufficiently clear to declare this as a matter of law. The court declines to declare that the decedent’s estate is a member of the LLCs. Agarwal v. Estate of Agarwal (Lawyers Weekly No. 020-007-22, 17 pp.) (Julianna Theall Earp, J.) William West for plaintiff; Kevin Rust for the estate. 2022 NCBC 7

Civil Practice Service of Process – Default – General Appearance – Split of Authority Even though plaintiff did not properly serve defendant Barber with process, since Barber made a general appearance when she filed a motion to claim exempt property, she has waived any objection to lack of personal jurisdiction over her due to defects in service of process and has subjected herself to the jurisdiction of this court.

The court denies Barber’s motions to set aside default and to vacate summary judgment.

Service Attempt

Plaintiff attempted to serve Barber with process via Federal Express, signature required. FedEx apparently (1) left the package at a Walgreens with which FedEx has a cooperation relationship and (2) left a notice for Barber somewhere advising her that a package was awaiting her at the store.

The address plaintiff used on the FedEx package was not Barber’s address; in fact, it was not a valid address at all. There is no record of where the FedEx driver may have left notice of the package for Barber.

The package was retrieved from Walgreens by someone who used the initials “D.B.” Although there is evidence that Walgreens requires proof of identification, Barber denies that she or anyone authorized by her picked up the package. Plaintiff has come forward with no other admissible evidence proving that Barber or her agent actually received the package.

Accordingly, plaintiff has failed to adequately demonstrate that Barber was served with process in this action.

General Appearance

However, plaintiff argues that Bar-

ber made a general appearance by filing her “Motion to Claim Exemptions”, thereby waiving any objection to lack of personal jurisdiction over her due to defects in service of process and has subjected herself to the jurisdiction of this court.

A defendant may voluntarily waive a defect in service by making a general appearance in an action instituted against her in which the court has subject matter jurisdiction. G.S. § 1-75.7.

There is a split of authority in North Carolina regarding whether an act by a defendant that might otherwise be considered a general appearance but which comes after the entry by the court of a final judgment against her constitutes such a general appearance thus waiving objections to personal jurisdiction.

In Faucette v. Dickerson, 103 N.C. App. 620 (1991), the N.C. Court of Appeals found that the defendant made a general appearance where the defendant filed a motion to claim exemptions post-judgment. Therefore, the court affirmed the trial court’s denial of that defendant’s later motion for relief from judgment based on the plaintiff’s failure to properly serve defendant with the summons and complaint.

There is a line of cases following Faucette, but there is a separate line of cases which have held, without referencing Faucette, that if a defendant “did nothing that could be considered a general appearance prior to the entry of the [judgments] now challenged”, an objection to personal jurisdiction has not been waived via conduct otherwise constituting a general appearance. Barnes v. Wells, 165 N.C. App. 575 (2004).

This court cannot distinguish or reconcile these conflicting lines of authority, so it follows the earlier decision, Faucette. In re Appeal from Civil Penalty, 324 N.C. 373 (1989).

Therefore, in accordance with Faucette, the court finds and concludes that Barber made a general appearance in this matter by filing her motion to claim exemptions postsummary judgment, and thereby is deemed to have waived any objection she may have to personal jurisdiction.

Because the court finds and concludes that Barber made a general appearance waiving her objection to personal jurisdiction by filing her motion to claim exemptions, the court must deny her request to set aside the entry of default against her under N.C. R. Civ. P. 55(d).

The court similarly denies Barber’s motion to set aside summary judgment.

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I M arch 14, 2022

Motions denied.

Slattery v. AppyCity, LLC (Lawyers Weekly No. 020-008-22, 14 pp.) (Michael Robinson, J.) Jeffrey Southerland and Benjamin Hintze for plaintiff; Reginald Gillespie and Alexandra Bradley for defendant. 2022 NCBC 8

Civil Practice Falsified Evidence – Created Email Chain – Attorney Litigant – Sanctions Where defendant Russell, a licensed attorney, created and backdated an email chain to make it look as though she had not breached a fiduciary duty in the form of self-dealing, the court sanctions Russell by taxing her with the costs caused by her misconduct, allowing evidence of Russell’s misconduct, and referring her to the State Bar. Plaintiffs’ motion for sanctions is granted.

Plaintiffs presented evidence that Russell altered the bylaws of nominal defendant Triangle Real Estate Investors Association, Inc. (the Association), a nonprofit corporation, to make the bylaws support actions she had taken to use the Association’s assets to create new entities: non-profit TREIA Foundation, Inc., and for-profit Triangle Real Estate Investors Association, LLC. Russell produced the allegedly altered bylaws in discovery.

However, plaintiffs could not show when the changes were made, who made the changes, or whether the changes were authorized. Plaintiffs’ evidence is insufficient to prove that Russell fabricated portions of the Association’s bylaws or that she produced a falsified documents to plaintiffs during discovery and to the court with her affidavit.

Nonetheless, plaintiffs were able to show that Russell fabricated and backdated an email chain. Russell and A.C. Johnson formed AK Partners Real Estate, bought a house for $28,676.55 and sold it to non-profit TREIA Foundation for $ 69,718.00.

The fabricated email chain between Russell and Johnson indicated that Russell gave up her half of AK Partners so that Johnson alone sold the house to TREIA Foundation, thereby avoiding any conflict of interest.

Plaintiffs’ expert determined that Russell had created a previously nonexistent email conversation between herself and Johnson discussing the property sale, backdated the newly created emails so that it would appear they were sent well before this litigation began, and forwarded the newly created emails to her counsel to be produced in discovery.

The court finds that Russell created and then back-dated the fake emails to counter the complaint’s allegations of self-dealing.

Russell engaged in this misconduct alone. Neither her counsel nor any other defendant was aware that Russell falsified the emails when those documents were produced in discovery. The court declines to strike Russell’s answer, since this would punish the defendants who were innocent of her misdeeds.

Instead, the court awards to plaintiffs, the Association, the new entities, and defendant Jurgens the costs associated with plaintiffs’ motion. These costs are to be paid personally by Russell.

Furthermore, the court will allow evidence of Russell’s misconduct with respect to the falsified emails, including but not limited to the testimony

of plaintiffs’ expert, to be admitted for impeachment purposes.

Had Russell appeared as a practicing attorney, rather than a litigant, the court would be compelled to sanction her further for her base violation of professional responsibility. Instead, the court opts to refer this matter to the State Bar to consider Russell’s transgressions.

Motion granted.

Ford v. Jurgens (Lawyers Weekly No. 020-009-22, 23 pp.) (Julianna Theall Earp, J.) 2022 NCBC 9

Intellectual Property Trade Name Infringement – Church Factions – Tort/Negligence – Corporate A breakaway faction of a church may not continue to use the church’s name to solicit donations or to contract with third parties. The right to use the name Wakefield Missionary Baptist Church inheres in Wakefield Missionary Baptist Church, Inc., which is the lawful successor to the previously unincorporated association. The dissenters are not allowed to confuse the public or appropriate the standing and good will of this stillexisting church by holding their own services under the same name.

The court grants summary judgment for Wakefield Missionary Baptist Church, Inc. (WMBC, Inc.), on its claim of trade name infringement.

The court defers ruling on the issue of remedies for trade name infringement. The court grants summary judgment for WMBC, Inc., and its trustees on plaintiff-dissenters’ claims of breach of fiduciary duty, constructive fraud and unjust enrichment.

The court grants summary judgment for plaintiffs on defendants’ counterclaims for conversion and conspiracy.

Wakefield Missionary Baptist Church (Wakefield) is a congregational church governed by bylaws. This dispute started with a congregational vote to elect signatories for the church bank account. The end result was two church factions: the plaintiff-trustees started holding meetings off-site (after defendants changed the locks), and the defendant-trustees held a congregational meeting to ratify their incorporation of the church and adoption of new bylaws.

Breach of Fiduciary Duty

Plaintiffs’ claims of breach of fiduciary duty, constructive fraud and unjust enrichment are based on their assertion that the unincorporated association is the rightful owner of the church’s property. In their view, the trustee defendants usurped the authority of the congregation by claiming control of the church’s grounds and bank account.

This inquiry implicates the First Amendment. Court review must be limited to questions that can be resolved on the basis of neutral principles of law such as (1) who constitutes the governing body of this particular church, and (2) who has that governing body determined to be entitled to use the properties.

On these narrow questions, the evidence is undisputed and favors the trustee defendants and WMBC, Inc. Wakefield’s governing body is its congregation. In February 2020, members of the congregation met to decide whether to ratify the actions of the trustee defendants—specifically including the incorporation of the church—and to authorize the transfer of church property to WMBC, Inc. At-

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I Ma rch 14, 2022

tending members unanimously voted yes.

Plaintiffs offer no contrary evidence and no constitutionally permissible reason to upset the congregation’s decisions.

Wakefield’s congregation has the right to control the church, including the right to forgive or to endorse actions previously taken by church leaders. The congregation, as the governing body, has had its referendum on these disputes and has declared the matter closed. Neither the court nor a jury can overrule the congregation’s edict.

The court therefore enters summary judgment in favor of defendants as to the claims for breach of fiduciary duty, constructive fraud, and unjust enrichment.

Conversion & Conspiracy

Defendants allege that plaintiffs have converted donations that belong to WMBC, Inc. However, the donations came from unknown sources, at unknown times, and in unknown amounts. At no point did WMBC, Inc. have possession of all or part of the donations. Nor has WMBC, Inc. offered any evidence to show that donors intended their money to go to it rather than to the faction led by defendants McKnight and Foster. In addition, WMBC, Inc. did not then and does not now control the bank account in which the donations were deposited; McKnight and Foster created that account after the church split.

No reasonable jury could conclude that the funds in question are capable of being identified and described with specificity or that they were owned by WMBC, Inc. Consequently, defendants cannot prove conversion of the donations.

Because there can be no conspiracy to commit conversion without an underlying claim for conversion, defendants have also failed to make out a claim for civil conspiracy.

Trade Name Infringement

Few North Carolina cases address the trademark and trade name rights of churches. Although a religious body may claim such rights, it is unclear how far a civil court may go in adjudicating the use of similar or identical names by two unaffiliated churches.

What a church or other house of worship chooses to call itself is, after all, an expression of its religious identity.

Perhaps for that reason, our Supreme Court has left open the question of whether an injunction may be issued to forbid one church to use a name similar to that of another church.

However, though few in number,

the cases in this area do offer clear guidance when dealing with factional disputes within a church. Our Court of Appeals has stressed that the right to use the name inheres in the institution, not in its members; and, when they cease to be members of the institution, use by them of the name is misleading and, if injurious to the institution, should be enjoined.

No question of religious liberty is involved because dissident members have no right to make use of a name which will enable them to appropriate the good will which has been built up by an organization with which they are no longer connected.

The right to use the name Wakefield Missionary Baptist Church inheres in WMBC, Inc., which is the lawful successor to the unincorporated association for the reasons discussed above. Yet the estranged faction has continued to use the church’s name—to advertise online, to collect donations, and to make contracts with third parties—while choosing to worship apart from the rest of Wakefield’s congregation.

It follows that WMBC, Inc. is entitled to summary judgment and an appropriately tailored injunction. The dissenters are not allowed to confuse the public or appropriate the standing and good will of this still existing church by holding their own services under the same name.

Motions granted in part; ruling deferred in part.

McKnight v. Wakefield Missionary Baptist Church, Inc. (Lawyers Weekly No. 020-010-22, 16 pp.) (Adam Conrad, J.) Michael Jones for plaintiffs; S.C. Kitchen for defendants. 2022 NCBC 10

N.C. COURT OF APPEALS, UNPUBLISHED

Criminal Practice Statutory Sexual Offense – Rape Shield Statute – Other Abuser The Rape Shield Statute, N.C. R. Evid. 412, states that evidence of other sexual behavior of the complainant is generally irrelevant unless it falls within one of four statutory exceptions. Sexual behavior is defined as “sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial.” There is no requirement that the “sexual behavior” be consensual; therefore, the trial court did not err when it applied Rule 412 to exclude evidence that—

during part of the time the child victim was being sexually abused by her stepfather (defendant)—she was also being sexually abused by a teenager.

We find no error in defendant’s convictions of one count of statutory sexual offense with a child by an adult and six counts of taking indecent liberties with a child.

Although the victim chose not to go into detail about the 15-year-old who abused her, she was consistent that he used to live near her father’s home but no longer lived near her. The victim gave no indication of confusing the abuser’s identity.

While there was an overlap of time during which the victim was being abused by both abusers, she was clear that defendant abused her at her mother’s house and the 15-year-old abused her at her father’s house.

The victim may have been fearful of the 15-year-old and she may have been concerned confessing that abuse would suggest complicity, but those facts do not provide a bridge of inference to defendant’s innocence. There must be additional factual evidence to suggest the sexual abuse at issue was committed by someone other than defendant beyond the existence of an additional abuser. Therefore, the excluded evidence does not fall within the Rule 412(b)(2) exception.

Because the excluded evidence bore no direct relationship to the incident in question the evidence was properly excluded as irrelevant even when viewed beyond the Rule 412 exceptions.

Finally, even if the trial court did err in excluding the evidence, it was not prejudicial. The distinct, idiosyncratic details the victim knew about defendant’s skin disease on his genitalia, paired with the lack of evidence to suggest confusion of abusers, false accusation, or motive, are sufficient to conclude the inclusion of evidence would not have swayed a reasonable jury to a different verdict.

No error.

State v. Washington (Lawyers Weekly No. 012-454-21, 21 pp.) (Fred Gore, J.) Appealed from Wake County Superior Court (Andrew Heath, J.) Kelly Chambers for the state; Dylan Buffum for defendant. 2021-NCCOA-730

Criminal Practice Arson – Single Structure with Multiple Apartments – Lesser Included Offense Defendant was charged with two counts of arson for burning two apart-

ments in the same house. For purposes of arson, a single structure with multiple dwelling units constitutes one dwelling house. Even though the trial court declined to dismiss one count of arson, since defendant was acquitted of one of the charges, he was not prejudiced by the trial court’s ruling.

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

A defendant is guilty of first-degree arson where “the dwelling burned was occupied at the time of the burning,” but is guilty of arson in the second-degree, “if the dwelling burned was unoccupied at the time of the burning.”

G.S. § 14- 58.

Defendant challenges his seconddegree arson conviction on the basis that one of the apartments he burned was occupied at the time. Notably, defendant does not argue there was insufficient evidence for first-degree arson. Defendant merely argues that, because one apartment was occupied at the time, no reasonable jury would convict him of an offense that required inoccupancy. However, where there is sufficient evidence to prove a greater crime, there is necessarily sufficient evidence to prove the lesser included offense and therefore judgment on the lesser offense is proper.

State v. Parks (Lawyers Weekly No. 012-455-21, 13 pp.) (April Wood, J.) Appealed from Cumberland County Superior Court (James Ammons, J.) Teresa Postell for the state; Wyatt Orsbon for defendant. 2021-NCCOA-725

Criminal Practice DWI – Miranda Warnings – Motion to Dismiss Even though the arresting officer testified that, while he was questioning the defendant-driver, she was not free to leave, since defendant was neither under formal arrest nor had her freedom of movement been restrained to the degree associated with a formal arrest at this point during the stop, defendant was not in custody for purposes of Miranda, and the trial court did not err by admitting defendant’s confession to taking Xanax and smoking marijuana earlier that day.

We find no error in defendant’s conviction for driving while impaired.

The deputy testified that defendant was driving her vehicle on Glenwood Avenue, a “street” within the State of North Carolina. G.S. § 20-138.1(a)(1).

The deputy administered three different standardized field sobriety

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16 / OPINION DIGESTS tests, on all of which defendant performed poorly. Following the administration of the tests, the deputy opined that defendant had consumed a sufficient quantity of an impairing substance so as to appreciably impair her mental and/or physical faculties.

Defendant admitted to taking her prescribed Xanax medication and to smoking marijuana earlier that day.

Further, defendant’s blood samples tested positive for amphetamine, cannabinoids, cocaine, and Xanax—all of which are controlled substances under G.S. Chapter 90. Considered in the light most favorable to the state, there is substantial evidence that defendant was “under the influence of an impairing substance”; G.S. § 20-138.1(a)(1).

Finally, it is undisputed that defendant was the operator of the vehicle involved in the offense. Therefore, the trial court did not err in denying defendant’s motions to dismiss.

No error.

State v. Paktiawal (Lawyers Weekly No. 012-456-21, 18 pp.) (Jeffery Carpenter, J.) Appealed from Wake County Superior Court (Andrew Hanford, J.) Matthew Buckner for the state; Sandra Payne Hagood for defendant. 2021-NCCOA-724

Criminal Practice Second-Degree Murder – Rival Motorcycle Gangs – Territory Patch – Motive – Expert Testimony A “bottom rocker” is a patch on the lower back of a motorcycle club’s vest, usually indicating the territory the club claims. The trial court did not err by allowing a member of the victim’s motorcycle club, the Iron Patriots, to testify that the Iron Patriots had changed their bottom rocker from “Band of Brothers” to “North Carolina” and that he was concerned that this change could possibly raise an issue regarding territory. Such testimony was admissible to show motive for defendant’s shooting of a member of the Iron Patriots because there was evidence that “North Carolina” was also on the bottom rocker used by defendant’s motorcycle club, Hell’s Angels, and that the Hell’s Angels were unhappy with the Iron Patriots having the same bottom rocker.

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

The trial court also allowed the state to present an expert in organized motorcycle club activity. The state’s expert witness testified that it is customary behavior for a smaller club to ask permission from the region’s dominant club to form a motorcycle club.

In addition, the expert affirmed it is ordinary practice for smaller clubs to seek approval from the dominant club as to what patches are allowed, what the club’s name may be, and what the club may display as their bottom rocker.

The expert stated that, in this case, Hell’s Angels was a dominant motorcycle club and that the Iron Patriots were a smaller club. The expert further testified that, based on defendant’s Hell’s Angels motorcycle jacket design, Hell’s Angels’ bottom rocker signified the club claimed North Carolina as its territory. Because the Iron Patriots’ bottom rocker claimed the same territory, the expert surmised that action could cause a disagreement with Hell’s Angels.

As the average juror could not readily conclude this information on their own, the state’s expert testimony assisted the trier of fact and was relevant to understanding the events

preceding the victim’s death. The trial court did not err in allowing the expert witness to testify.

There was sufficient evidence to support the trial court’s instruction on second-degree murder. Defendant cornered the victim and another Iron Patriot with his truck in a restaurant parking lot. Defendant then confronted the Iron Patriots and asserted they were not supposed to be in the area.

When the victim expressed confusion at the statement, defendant retorted that they both knew exactly what he meant. The victim then replied that he was not going anywhere, and defendant responded, “That’s the way it’s going to be.” Defendant then grabbed his 45-caliber pistol, tucked it into his waistband, exited his truck, and fired rounds that struck the victim. After firing a round in the companion’s direction as well, defendant got into his truck and left the parking lot.

The victim and his friend were a part of the Iron Patriots whose actions regarding the bottom rocker may have upset Hell’s Angels, the motorcycle club of which defendant was a member. The jury could have found that defendant acted maliciously, but without premeditating the killing, thus supporting an instruction for seconddegree murder.

Where defendant’s own evidence showed that he was the aggressor, he was not entitled to a jury instruction on the lesser-included offense of voluntary manslaughter.

No error.

State v. Russ (Lawyers Weekly No. 012-457-21, 10 pp.) (Chris Dillon, J.) Appealed from Randolph County Superior Court (Bradford Long, J.) Adren Harris for the state; Daniel Blau for defendant. 2021-NCCOA-727

Criminal Practice Sentencing – Factors Considered – Attorney’s Fees In sentencing defendant within the presumptive range for obtaining property by false pretenses, felony larceny and possession of heroin, the trial court said, “I’m going to give him as much time as I can, because he’s chosen to be a burden on society to both his mother, his wife, sister, or whoever else is here, along with everybody around him in life … He doesn’t intend to succeed at [Triangle Residential Options for Substance Abusers] anymore than he intended to do anything else. His—right now these charges are so serious that he’s looking for any way he can get out and stay out…

“I think it’s time. You just can’t— you have been a terrible burden on society in every area that you have lived in, and you cost the people a lot of money and a lot of problems. So there’s no way that you can expect this Court to help you.”

The trial court refrained from referring to anything outside the scope of defendant’s sentencing hearing, character, propensities, habit, record or history. Such considerations were proper and within the purview of the trial court during sentencing. Moreover, defendant has made no showing that a different outcome would have resulted absent the trial court’s commentary.

We find no error in defendant’s sentence. However, as the state concedes, defendant was not provided notice or an opportunity to be heard on the issue of the attorney’s fee award against him. We remand to allow defendant

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 M arch 14, 2022

such an opportunity.

State v. Sawyer (Lawyers Weekly No. 012-458-21, 10 pp.) (Jeffery Carpenter, J.) Appealed from Craven County Superior Court (John Nobles, J.) Kimberly Hoppin for defendant; Dylan Sugar for the state. 2021-NCCOA-728

Criminal Practice Murder – Surveillance Video – Lay Opinion Testimony – Other IDs Prior to defendant’s trial, a police detective’s only interaction with defendant was a 10-minute face-to-face interview. Since nothing in the record indicates that defendant significantly altered his appearance before trial or that the individual in surveillance footage from an EconoLodge had disguised his appearance at the time of the offense, it was error for the trial court to allow the detective to testify that defendant was the person seen in the EconoLodge surveillance footage.

However, defendant cannot show prejudice given that other witnesses described defendant’s appearance at a party/wake for the victim, the victim’s best friend identified defendant in street surveillance video from near the site of the shooting, and an inhouse guest list and receipt from the EconoLodge reveals that defendant checked into the hotel at approximately the same time the EconoLodge surveillance video showed an individual matching defendant’s description walking down the hallway. The admission of the detective’s testimony does not amount to plain error.

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

In her closing argument, the prosecutor referred to the street surveillance footage showing several flicks of light inside a vehicle before the person identified as defendant got out of the vehicle. The prosecutor said, “You saw the flicking of that lighter, flicking again and again. It’s not the way it flicks when you’re smoking cigarettes.

They’re smoking, they were getting amped up.”

Drugs were not at issue in this case.

The prosecutor’s one comment about “getting amped up” did not recur, and the trial court later instructed the jury that its “instruction contains no references to the law of impairment, voluntary intoxication, or diminished capacity.” Even if the prosecutor’s remark was improper, defendant fails to demonstrate prejudice. The trial court did not err by failing to intervene ex mero motu in this case.

State v. Whitted (Lawyers Weekly No. 012-459-21, 21 pp.) (Fred Gore, J.) Appealed from Durham County Superior Court (James Hardin, J.) John Oates for the state; Kimberly Hoppin for defendant. 2021-NCCOA-731

Criminal Practice Possession of a Firearm by a Felon – Dropped Gun In this case, (1) the state presented a certified copy of a judgment showing defendant had a prior felony possession of cocaine conviction; (2) a witness identified defendant as the person the witness encountered outside his apartment and testified that defendant was in possession of a weapon of the exact type and color as that of the weapon subsequently recovered near the witness’s apartment; (3) shortly after a police sergeant’s arrival, the

sergeant found defendant on a path consistent with the witness’s description of where defendant had fled; and (4) the sergeant testified that he found the firearm near the path defendant took after leaving the witness’s apartment. Defendant’s identification and arrest near the witness’s apartment, as well as the location of the recovered weapon, coupled with the witness’s in-court identification of defendant, amount to substantial evidence tending to show defendant perpetrated the offense.

We affirm the trial court’s denial of defendant’s motion to dismiss the charge of possession of a firearm by a felon.

State v. Wroten (Lawyers Weekly No. 012-460-21, 7 pp.) (Jeffery Carpenter, J.) Appealed from Buncombe County Superior Court (Marvin Pope, J.) Patrick Lineberry for defendant; Eric Hunt for the state. 2021-NCCOA-732

Arbitration Wrongful Death – RV Park – Falling Tree The fact that an arbitration clause did not mention “wrongful death” does not mean plaintiff’s wrongful death claim is not subject to arbitration.

We reverse the trial court’s denial of defendants’ motion to stay and compel arbitration.

While driving through defendants’ recreational-vehicle park, plaintiff’s decedent sustained fatal injuries when a tree broke and landed on his vehicle.

In their membership contract with the RV park, plaintiff and her late husband had agreed that “any and all claims, controversies and disputes of any kind arising out of or in any way relating to this agreement, the interpretation or enforcement thereof, the site, services, facilities, or maintenance in or about the resort, and any dispute respecting these matters ... shall be resolved solely by binding arbitration before a single, neutral arbitrator.”

The only disputes the arbitration clause of the contract explicitly did not cover were (1) “unlawful detainer and forcible detainer actions,” (2) “actions for unpaid rent and other charges,” and (3) actions for injunctive relief.”

Therefore, “wrongful death” and/or “death” would be included under the contract because it was not specifically excluded.

Based on the plain language of the contract, both plaintiff and her decedent appear to have contemplated the arbitration clause applying to and binding their “heirs, successors, executors, administrators and assignees.”

The agreement is therefore applicable to decedent’s “heirs, beneficiaries and/ or assigns,” and decedent need not have signed the contract on their direct behalf in order for the terms of the contract to apply to them.

The trial court erred in finding that no “parties to the Agreement signed the Agreement on behalf of their heirs or beneficiaries,” as such a finding is not supported by the record evidence.

Furthermore, the right of action for wrongful death is purely statutory and may be brought only by the personal representative of the decedent.

The decedent’s heirs are not parties to this action and cannot prevent arbitration in this matter.

Reversed and remanded for entry of an order granting defendants’ motion to compel arbitration.

Albright v. Equity Lifestyle

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Properties, Inc. (Lawyers Weekly No. 012-001-22, 10 pp.) (Jeffery Carpenter, J.) Appealed from Rowan County Superior Court (Anna Mills Wagoner, J.) Gavin Reardon for plaintiff; Kathryn Setzer for defendant.

2022-NCCOA-7

Civil Practice Appeals – Untimely – Notice of Appeal Although the defendant-Father’s notice of appeal—filed more than 150 days after entry of the order he is appealing—alleges that he “has not yet been served with a copy of the filed Order,” this is the only information we have about service of the order because the plaintiff-Mother has made no response and Father does not address the allegation in his brief. Since Father presents no evidence or argument that he did not receive actual notice within the time period designated

by N.C. R. App. 3(c)(1), his notice of appeal is untimely and deprives this court of jurisdiction over the appeal.

Father has failed to address his late notice of appeal with this court or to seek any other avenue for his appeal to be heard, such as a petition for writ

of certiorari.

Appeal dismissed.

Dotson v. Dotson (Lawyers Weekly No. 012-002-22, 6 pp.) (Donna Stroud, C.J.) Appealed from the District Court in Cabarrus County (Brent Cloninger, J.) James Epperson for defendant; no brief filed for plaintiff.

2022-NCCOA-8

Workers’ Compensation

dustrial Commission’s finding that plaintiff’s left knee injury “occurred while she was performing her usual job duties in the usual manner” is unsupported by competent evidence.

We reverse the Commission’s denial of benefits. Remanded.

Vance v. Laurels Healthcare Holdings (Lawyers Weekly No. 012-003-22, 19 pp.) (Jeffery Carpenter, J.) Appealed from the Industrial Commission. Thomas Ramer for plaintiff; Steven Sizemore for defendants. 2022-NCCOA-25

Injury by Accident – PT Assistant – Large Patient – Solo Lift – Knee Injury

Administrative

The defendant-employer classified 6’3”, 300-pound patient J.W. as a two-person lift for purposes of a sit-to-stand transfer. The record indicates that plaintiff, a physical therapy assistant, had never previously assisted a patient of J.W.’s size or classification with a sit-tostand transfer without help from another employee. Plaintiff’s unassisted sit-to-stand transfer with a patient weighing approximately 300 pounds caused plaintiff extra exertion, which constituted both an interruption of her work routine and an unusual circumstance. The In-

Medicare & Medicaid – Retroactive Medicaid Enrollment – Medicare Part B Because of petitioner’s income level, he had to meet a deductible before retroactively enrolling in Medicaid.

The respondent-agency impermissibly refused to count 80 percent of petitioner’s medical expenses toward his deductible because he was eligible for, but had failed to enroll in, Medicare part B. The agency’s action was not permitted by any federal statute or regulation, and the agency’s reading of G.S. § 108A-55.1 does

not comport with the statute’s plain language or with Duke Univ. Med. Ctr. v. Bruton, 134 N.C. App. 39, 516 S.E.2d 633 (1999).

We affirm the superior court’s ruling that the agency’s unpromulgated rule was unenforceable.

As we said in Bruton, people who are eligible for both Medicare and Medicaid are impoverished, leading to a risk that they will be unable to afford the cost-sharing requirements of Medicare part B insurance coverage. Federal law requires the state to bear the burden of a Medicaid recipient’s failure to take advantage of federal Medicare assistance. Furthermore, 42 U.S.C. § 1396b(b)(1) effectively requires states to enroll such “dual eligible” in Medicare part B in order to receive matching funds for Medicare part A. Here, the agency delayed, and effectively denied, full Medicaid coverage on the basis of petitioner’s failure to enroll in Medicare Part B and instead applied 20 percent of petitioner’s medical fees, representing the amount that Medicaid would have covered if petitioner had been enrolled in Medicare Part B, to his Medicaid deductible. By delaying the moment that Medicaid coverage would activate on the basis of peti-

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18 / OPINION DIGESTS tioner’s failure to enroll in Medicare part B, the agency has avoided payment of medical fees it would otherwise be obligated to pay under Medicaid.

The Superior Court correctly concluded the agency’s policy was in violation of federal law under Bruton.

G.S. § 108A-55.1 was enacted after Bruton was decided. It reads, “The Department shall require State Medical Assistance Program recipients who qualify for Medicare to enroll in Medicare, in accordance with Title XIX of the Social Security Act, in order to pay medical expenditures that qualify for payment under Medicare Parts B and D, except that enrollment in Part D is not required if the recipient has creditable prescription drug coverage as defined by federal law.

“Failure to enroll in Medicare shall result in nonpayment of these expenditures under the State Medical Assistance Program. A provider may seek payment for services from Medicaid enrollees who are eligible for but not enrolled in Medicare Parts B and D.” A plain reading of this statute reflects that it only permits the agency to deny Medicaid payments for medical expenditures that would qualify for Medicare part B coverage but for the beneficiary’s failure to enroll in Medicare part B. The statute makes no reference to the determination of when Medicaid deductibles are met as it relates to this situation, and a plain reading of the statute does not permit us to apply § 108A-55.1 to the calculation of when Medicaid deductibles are met. This interpretation is buttressed by federal Medicaid provisions that require the state to make Medicaid payments for medical expenses directly to the healthcare provider, which, in conjunction with § 108A-55.1’s use of “payment[s],” suggests the statute is focused on whom healthcare providers can seek payments from.

Section 108A-55.1 is not intended to apply to the determination of when a Medicaid deductible has been met.

Although the statute requires Medicaid “recipients” to enroll in Medicare, such an enrollment cannot occur for retroactive charges, as a Medicaid applicant would become a Medicaid “recipient” only upon being approved for Medicaid coverage.

Additionally, it will typically be impossible for respondent to require Medicaid recipients to enroll in Medicare part B for past medical expenditures. We conclude the General Assembly did not intend for § 108A55.1 to apply to retroactive Medicaid coverage.

The availability of federal reimbursement for retroactive Medicaid coverage bolsters this conclusion.

Affirmed.

Hendrixson v. Division of Social Services (Lawyers Weekly No. 012-004-22, 28 pp.) (Jeffrey Murphy, J.) Appealed from Macon County Superior Court (Thomas Davis, J.) Matthew Jordan Cochran for petitioner; Katherine McCraw for respondents.

2022-NCCOA-10

Domestic Relations Parent & Child – Guardianship & Reunification – Secondary Plan Removed Where the trial court held that (1) Wake County Human Services “is relieved of the obligation to make further efforts towards re-

unification”; (2) “further efforts towards reunification are inconsistent with the children’s need for a safe, permanent home within a reasonable time and [are] not in the best interests of the children”; and (3) the respondent-parents “continue to act in a manner inconsistent with their Constitutionally protected status as parents and are not fit and proper parents to have custody of the children” and where the court waived all further regularly scheduled reviews, the trial court clearly ended the efforts to reunify “Marvin” and “Douglas” with their parents.

We affirm the trial court’s order awarding guardianship of Marvin and Douglas to their foster parents.

The court did not name any secondary plan in its guardianship order. Had the court wished to establish a secondary plan, it would have needed to specify such a plan. Given that concurrent planning was no longer necessary, the court’s silence as to any secondary plan and its express suspension of reunification efforts indicate that the trial court effectively removed reunification as a secondary plan.

While we agree with the respondent-mother than the trial court was not required to eliminate concurrent planning, the trial court did in fact eliminate the secondary plan and made the requisite findings to do so.

In re D.B. (Lawyers Weekly No. 012-005-22, 9 pp.) (Jefferson Griffin, J.) Appealed from Wake County District Court (V.A. Davidian, J.) Robert Ewing for respondent; Mary Boyce Wells for petitioner; Christopher Waivers for guardian ad litem. 2022-NCCOA-11

Domestic Relations Parent & Child – Subject Matter Jurisdiction – Minor Mother – Placement Alternative The respondent-Mother was a minor in foster care when her infant, “Travis,” was alleged to be dependent. Even if the Hoke County Department of Social Services violated 10A N.C.A.C. 70A.103(1)(6) by failing to transfer Travis’ dependency report to another county, 10A N.C.A.C. 70A.103(1)(6) does not affect standing. G.S. § 7B401.1(a) provides that any county DSS director may file the juvenile petition. We reject Mother’s argument that HCDSS lacked standing to file the petition as to Travis based on a conflict of interest.

We affirm the trial court’s order adjudicating Travis dependent.

Even though Mother’s father (Grandfather) was the removal parent in Mother’s own case, HCDSS still made reasonable attempts to involve Grandfather in consideration for placement of Travis. Unfortunately, Grandfather failed to attend certain visits with Travis.

The trial court’s findings support its conclusion that there is no appropriate alternative child care arrangement for Travis.

In re T.C.M. (Lawyers Weekly No. 012-006-22, 9 pp.) (Chris Dillon, J.) Appealed from Hoke County District Court (Warren McSweeney, J.) Jacky Brammer for respondent; Charles Smith, Jonathan Charleston and Jose Coker for petitioner; Matthew Wunsche for guardian ad litem. 2022-NCCOA-13

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Domestic Relations Parent & Child – Abuse & Neglect – Unexplained Injuries The respondent-parents brought three-month-old “Kevin” to the emergency department, where he was found to have, among other injuries, fractures to his right tibia, right fibula, left tibia, left fibula, right humerus, and parietal bone.

Neither parent could adequately explain Kevin’s injuries, but they both admitted that Kevin had sustained serious injuries as the result of non-accidental trauma. Based on these facts, the trial court’s determinations that Kevin was both abused and neglected are well supported; further, the trial court’s dispositional order—that the child remain in the non-secure custody of DSS—and the court’s requirements of the parents should they wish reunification with Kevin are consistent with the purposes and functions of dispositional hearings.

We affirm the trial court’s adjudication and disposition.

In re K.T.B. (Lawyers Weekly No. 012-007-22, 6 pp.) (Darren Jackson, J.) Appealed from Forsyth County District Court (Theodore Kazakos, J.) Melissa Starr Livesay for petitioner; Sean Vitrano for respondent; Matthew Wunsche for guardian ad litem. 2022-NCCOA-12

Real Property ‘Transfer Fee’ – Certification Fee – HOA Dues Current G.S. Chapter 39A prohibits the imposition of a fee payable upon the transfer of an interest in real property. However, specifically excluded from Chapter 39A’s definition of a “transfer fee” is “any reasonable fee charged for the preparation of statements of unpaid assessments.” The $395 fee that defendant charged to prepare a statement showing plaintiffs were current on their homeowners’ association dues was not a transfer fee prohibited by Chapter 39A. We affirm the trial court’s order granting defendant’s motion to dismiss.

Although plaintiffs argue the fee charged by defendant was not reasonable, plaintiffs alleged in their complaint that the fee was payable upon defendant’s preparation of the statement certifying that they had no unpaid assessments. Yet a fee that is payable upon the preparation of such a statement is not the equivalent of a fee that is “payable upon the transfer of an interest in real property or payable for the right to make or accept such transfer[.]” G.S. § 39A-2(2). Indeed, accepting plaintiffs’ interpretation of Chapter 39A would result in any payment at closing being a transfer fee if not specifically excepted by § 39A-2(2)(a)–(j).

The fee here was assessed is often a prerequisite to obtaining title insurance or financing the purchase of real estate, neither of which constitutes the transfer of an interest in real property. Thus, even construed liberally, plaintiffs’ allegations do not establish that the fee was “payable upon the transfer of an interest in real property or payable for the right to make or accept such transfer.”

Plaintiffs have not alleged suffi-

cient facts to establish that the fee was a “transfer fee” under § 39A2(2).

Fleming v. Cedar Management Group, LLC (Lawyers Weekly No. 012-008-22, 13 pp.) (Valerie Zachary, J.) Appealed from Mecklenburg County Superior Court (Lisa Bell, J.) Scott Harris, Patrick Wallace and Jeremy Williams for plaintiffs; Steven Bader and Richard Boyette for defendant. 2022-NCCOA-9

Domestic Relations Custody & Visitation – Grandparents’ Standing – Abuse Allegations – Consent Order The plaintiff-grandfather’s son had temporary custody of his and the defendant-Mother’s children pursuant to an ex parte order entered upon allegations of abuse. After the children’s father died in an auto accident, the plaintiff-grandfather and his wife (Grandparents) filed this action seeking custody of the children.

Since Grandparents alleged that Mother had physically and emotionally abused the children, Grandparents had standing to seek custody.

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

Four years after entering into a consent judgment, Mother moved to dismiss, arguing the trial court erred by granting visitation to Grandparents. However, the trial court did not “grant” visitation to Grandparents.

Instead, Mother voluntarily agreed in the consent order to allow Grandparents visitation. After agreeing to its terms, Mother cannot now argue that the trial court erred in entering the consent order, which is premised entirely on the agreed-upon terms.

Lantz v. Lantz (Lawyers Weekly No. 012-009-22, 14 pp.) (Allegra Collins, J.) Appealed from Pitt County District Court (Paul Hardison & Galen Braddy, JJ.) No brief filed for plaintiffs; Cynthia Mills for defendant. 2022-NCCOA-14

Real Property Mortgages – Specific vs. General Description – Three-Parcel Tract Although a deed of trust referred to the mailing address applicable to all three of the borrowers’ tracts, since the deed of trust described only two small tracts (0.181 acres and 0.009 acres) that were deeded to the borrowers separately from their main 1.26-acre parcel, the lender’s foreclosure only encompassed the 0.181- and 0.009-acre tracts.

We affirm the trial court’s dismissal of plaintiff’s quiet-title action.

Facts

Although Paul and Anita Richardson’s property had a single address and tax parcel number (PIN), it was sold to them in three separate parcels: a 1.26-acre parcel via a 1962 deed and two adjacent tracts – 0.181 acres and .009 acres – via a 1978 deed. When the Richardsons mortgaged their property to build a home on it in 2009, the deed of trust described only the tracts that the Richardsons obtained via the 1978 deed.

After the Richardsons died, there was a default, and the lender foreclosed. The foreclosed property, encompassing the 0.181-acre parcel and the 0.009-acre parcel, was deeded to plaintiff. While the deed’s metes and

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bounds description did not include the 1.26-acre parcel, the deed did identify the property by street address, by reference to the improvements at the address, and by the PIN. Via special warranty deed, plaintiff conveyed the foreclosed property to Fannie Mae. A year later, via quitclaim deed, Fannie Mae conveyed the property back to plaintiff. The quitclaim deed included the metes and bounds descriptions of the 0.181-acre parcel and the 0.009-acre parcel.

Meanwhile, the Richardsons’ daughter conveyed the remaining 1.26-acre parcel to the defendant-buyers, who obtained a mortgage from the defendant-credit union.

Almost two years after the buyers purchased the 1.26-acre parcel, plaintiff filed its complaint seeking to quiet title on the 1.26-acre parcel and requesting a declaration that it was the fee simple title holder of all three parcels.

Discussion

In order to establish a prima facie case for removing a cloud on title, a plaintiff must meet two requirements: (1) plaintiff must own the land in controversy, or have some estate or interest in it and (2) defendant must assert some claim in the land which is adverse to plaintiff’s title, estate, or interest. To prove plaintiff has an ownership interest in the land, plaintiff may offer a connected chain of title or a grant direct from the state to himself.

When considering the terms used in deeds, generally, the rule is that where there is a particular and a general description in a deed, the particular description prevails over the general. It is only when the specific description is ambiguous, or insufficient, or there is a reference to a fuller or more accurate description, that the general description is allowed to control.

Here, since the tracts of land all shared the same address and PIN, the general description is consistent with the specific description as they describe the same property. As such, since the general description does not create an inconsistency or ambiguity, the general rule applies and we must conclude the particular description, identifying the 0.181-acre parcel and 0.009-acre parcel using metes and bounds, controls and the general description does not enlarge the conveyed property, but rather operates as another method of identifying the particular property described within the specific metes and bounds boundaries. Moreover, because the particular description of the encumbered property is clear and unequivocal, we may not speculate that the grantor intended to convey the 1.26-acre parcel by inclusion of the occupancy provisions, references to the improvements on the property, and identification of the property as a “primary residence” in the deed of trust. Thus, the deed of trust did not describe, encumber, or convey the 1.26-acre parcel.

Furthermore, plaintiff failed to allege any other facts showing it had an ownership interest in the 1.26-acre parcel, and thereby, supporting its claims to quiet title and for declaratory relief in another fashion.

Affirmed.

Reverse Mortgage Solutions, Inc. v. Dufault (Lawyers Weekly No. 012-010-22, 12 pp.) (Toby Hampson, J.) Appealed from McDowell County Superior Court (Thomas Davis, J.) Zipporah Basile Edwards for plaintiff; Alan Powell and Andrew Irby for defendants. 2022-NCCOA-15

Criminal Practice Constitutional – Batson Challenge – Failure to State Race-Neutral Explanation Even though defendant surmised that Juror Quinn’s brother being in jail would be the race-neutral reason for the state’s peremptory challenge to Juror Quinn, since, in the face of defendant’s Batson challenge, the state never proffered an explanation for its peremptory challenge to Juror Quinn, defendant is entitled to a new trial. It is the state’s burden, not defendant’s, to offer a race-neutral explanation for each and every peremptory challenge.

Remanded for a new trial.

State v. Ruth (Lawyers Weekly No. 012-011-22, 13 pp.) (April Wood, J.) Appealed from Forsyth County Superior Court (Stanley Allen, J.) Justin Isaac Eason for the state; Heidi Reiner for defendant. 2022-NCCOA-23

Criminal Practice Constitutional – Ineffective Assistance Claim – Final Summation Lost Defendant and his ex-girlfriend planned to set up the victim so defendant could beat him up and put him outside naked. Although the victim was naked when the ex-girlfriend called defendant, he had a gun under his pillow; defendant also brought a gun. Defendant shot and killed the victim.

Defense counsel put on evidence as part of a strategy of refuting premeditation and showing there was no intent to commit an armed robbery. In doing so, counsel lost the right to present the final summation to the jury.

Even if defense counsel made a miscalculation, defendant has failed to show that the result of his trial would have been different absent counsel’s alleged failure, given that the unflattering evidence presented during defendant’s case had already been presented during prosecution witness testimony.

We find no reversible error in defendant’s convictions of first-degree murder and robbery with a dangerous weapon.

State v. Locklear (Lawyers Weekly No. 012-012-22, 5 pp.) (Chris Dillon, J.) Appealed from Robeson County Superior Court (James Bell, J.) Taylor Crabtree for the state; Paul Herzog for defendant. 2022-NCCOA-20

Criminal Practice Sexual Battery – Indictment Allegations – Force – Masseur The complaining witness alleged that, after turning onto her back at the defendant-massage therapist’s suggestion, she felt her underwear pushed to the side and felt three acts of digital penetration from defendant.

Where the indictment alleged merely that defendant acted without the complaining witness’s consent, omitting any allegation that he committed his act “by force,” the indictment failed to allege an essential element of the offense of sexual battery. Therefore, the indictment failed to confer subject matter jurisdiction on the trial court to try defendant for sexual battery.

Judgment vacated.

State v. Stewart (Lawyers Weekly No. 012-013-22, 4 pp.) (Chris Dillon, J.) Appealed from Mecklenburg County Superior Court (George Coo-

per Bell, J.) Brenda Rivera for the state; Sterling Rozear for defendant.

2022-NCCOA-24

Criminal Practice Constitutional – Ex Post Facto Law – Supreme Court Decision – Self-Help Where our Supreme Court ruled that existing law did not permit a party to legally engage in self-help under a claim of right if the property at issue was subject to an illegal transaction, application of the Supreme Court’s ruling to defendant’s case does not violate the ex post facto clauses of the U.S. and N.C. Constitutions.

We find no error in defendant’s convictions for conspiracy to commit armed robbery and felonious breaking or entering.

Defendant gave the victim money to buy him drugs, she failed to buy the drugs, and he went to her house to get the money back. Defendant brandished and fired a gun while at the victim’s house.

During deliberations at defendant’s trial, the jury asked, “Is it still Robbery to take [b]ack [one’s own] property?” The trial court declined to answer the jury’s question, instead referring them back to their copy of the trial court’s original instructions.

The jury found defendant guilty of felonious breaking or entering, conspiracy to commit armed robbery and discharging a firearm into occupied property.

On appeal, this court held that the trial court erred by denying defendant’s motion to dismiss because defendant had a claim of right to the property that negated the element of felonious intent. Our Supreme Court reversed, holding that existing law did not permit a party to legally engage in self-help under a claim of right if the property was subject to an illegal transaction.

On remand, defendant argues that application of the Supreme Court’s ruling to his case would violate the constitutional ban on ex post facto laws. However, in order for a criminal law to be an ex post facto violation, it must be both retrospective by applying to events which occurred before its enactment, and it must disadvantage the offender affected by it. Although the ex post facto clauses refer to statutes, the federal ex post facto clause also forbids retroactive application of an unforeseeable judicial modification of criminal law to the disadvantage of the defendant.

Here, our Supreme Court’s decision in defendant’s case did not constitute an “unforeseeable judicial modification of criminal law.” To the contrary, the court noted, “[no] other case in this state has heretofore authorized a party to legally engage in ‘self-help’ by virtue of the exercise of a bona fide claim of right or title to property which is the subject of an illegal transaction”; and the court pointedly noted this court’s decision “erroneously extended beyond existing legal bounds the right of a party to engage in ‘self-help.’”

Therefore, we must likewise conclude the Supreme Court’s decision did not modify or create new law, but merely restated and reaffirmed existing law. Thus, retroactive application of our Supreme Court’s prior opinion in this case to defendant’s plain error and ineffective assistance of counsel claims does not implicate or violate the constitutional prohibitions on ex post facto laws.

The record shows that the trial

court’s decision not to re-instruct the jury was a considered one – made to avoid infusing its own application of the law to the facts – and not an abuse of discretion.

Given our Supreme Court’s ruling, defense counsel’s failure to request a “claim of right” instruction did not constitute ineffective assistance of counsel.

No error.

State v. Cox (Lawyers Weekly No. 012-014-22, 12 pp.) (Toby Hampson, J.) Appealed from Onslow County Superior Court (William Bland, J.) Daniel O’Brien for the state; Glenn Gerding for defendant. 2022-NCCOA-18

Criminal Practice Probation Revocation – Late-Presented Exhibit – Informal Proceeding – New Crime – 50B Order Given the informal nature of a probation revocation hearing, defendant’s opportunities to speak and present evidence, and defense counsel’s review of a domestic violence protective order before the order was handed to the judge at the end of the hearing, defendant’s due process rights were not violated by the judge’s consideration of the G.S. Chapter 50B order after the end of the presentation of evidence.

We affirm the revocation of defendant’s probation.

After closing arguments, the trial judge asked to see the 50B order, but the judge asked that the order be shown to defense counsel first. At that point, it was apparent that the judge was going to review the 50B order. Considering the informal nature of a probation revocation hearing, defendant could have asked the trial court for the opportunity to present relevant information or to be heard on the 50B order.

Defendant did not do so, and the trial court took no action preventing defendant from asking. Accordingly, the trial court did not violate defendant’s due process rights under G.S. § 15A-1345(e).

The 50B order did not need to be authenticated by a witness and it could be considered by the trial court despite being hearsay evidence because the formal rules of evidence do not apply in a probation revocation hearing. Furthermore, it was not arbitrary for the trial court to ask for a copy of the 50B order after defendant’s probation officer stated that a 50B order had been granted during her remarks about disposition. The trial court did not abuse its discretion in reviewing and relying on the 50B order to find that defendant had committed a new criminal offense.

The trial court in its sound discretion could be reasonably satisfied that defendant had willfully violated a condition of probation because the trial court knew defendant was charged with assault on a female, a 50B order had been issued in relation to the charge, and the prosecuting witness and defendant were both present at the civil proceeding about the 50B order. Therefore, the trial court did not err in revoking defendant’s probation on the ground that defendant had committed a new criminal offense.

Affirmed.

State v. Miles (Lawyers Weekly No. 012-015-22, 13 pp.) (Darren Jackson, J.) Appealed from Mecklenburg County Superior Court (Lisa Bell, J.) Kimberly Randolph for the state; Jillian Katz for defendant. 2022-NCCOA-22

20 / OPINION DIGESTS Criminal Practice

Criminal Practice

False Pretenses – Intent to Deceive – Other Bad Acts – General Contractor

MAR – Equal Protection – Racial Discrimination Claim – Plea Offers

Given the long string of projects for which the defendant-contractor received upfront payment but which he never completed or even substantially began, the state’s evidence of defendant’s intent to deceive was sufficient to survive defendant’s motion dismiss.

We find no error in defendant’s convictions for obtaining property by false pretenses.

The state produced substantial evidence for a rational juror to deduce that defendant did not intend to complete the construction projects at the time he collected payment from victims Brown and Howard. The state presented evidence under N.C. R. Evid. 404(b) from the same general timeframe of the allegations which tended to establish a pattern, motive, or scheme.

The state presented six 404(b) witnesses. All the 404(b) testimony tended to show that, in a period spanning less than a year, during which defendant contracted with victims Brown and Howard, defendant repeatedly contracted to complete costly construction projects, often without a valid general contractor’s license, requested and cashed large upfront payments, did not complete any meaningful work on the projects (and often only did any work after client complaints), repeatedly missed promised deadlines, and never obtained building permits on any of the projects (except when forced to by victim Brown).

Cumulatively, this evidence tended to show that defendant did not intend to complete Brown or Howard’s projects at the time he entered into the contracts. The evidence was more than sufficient to support defendant’s convictions for obtaining property by false pretenses.

State v. Daw (Lawyers Weekly No. 012-016-22, 16 pp.) (Darren Jackson, J.) Appealed from Lenoir County Superior Court (Frank Jones, J.) Torrey Dixon for the state; Emily Holmes Davis for defendant. 2022-NCCOA-19

Although the prosecutor offered plea deals to defendant’s white codefendants but not to the black defendant, since the white co-defendants ran away when they realized the victims were being shot, while defendant exhorted the shooters and their lookout to hurry, defendant has not shown that the prosecutor discriminated against defendant based on her race.

We affirm the trial court’s denial of defendant’s motion for appropriate relief.

The evidence shows that white co-defendant Mangold disengaged, warned his friend and fled the scene of the crime. No evidence suggested that Mangold profited from the robbery of the victims.

On the other hand, after Mangold told defendant that “they are killing people in there” and invited defendant to leave with him, defendant walked toward the scene of the crime, told the perpetrators to “come on” and later returned to Georgia in a stolen vehicle laden with stolen property.

Defendant and Mangold were not similarly situated.

When white co-defendant Goolsby learned that other members of their group had shot the victims, Goolsby fled the scene. Goolsby demonstrated a willingness to help prosecutors by testifying in defendant’s trial. No evidence suggested Goolsby profited from the robbery.

However, defendant exhorted the shooters to hurry and profited from the robbery. Even though defendant told law enforcement she did not know about the plan to rob the victims beforehand, during a jailhouse call to her mother, she admitted she knew about the robbery that was being discussed on the way the victims’ residence. Defendant and Goolsby were not similarly situated.

State v. Marion (Lawyers Weekly No. 012-018-22, 21 pp.) (April Wood, J.) Appealed from Swain County Superior Court (Marvin Pope, J.) Mary Carla Babb for the state; Lauren Miller for defendant. 2022-NCCOA-21

Criminal Practice Subject Matter Jurisdiction – Indictment Allegations – Obstruction of Justice Although the caption of defendant’s indictment included the words “obstruction of justice,” this was insufficient to correct the indictment’s omission of an essential element: that defendant obstructed, prevented, impeded, or hindered justice.

We vacate the judgment against defendant and remand for a new disposition.

Defendant’s Alford plea did not waive his right to appeal. A defendant may challenge the sufficiency of the indictment despite having knowingly and voluntarily pled guilty to the charge.

But where defendant has elected to repudiate a portion of his plea agreement, we must vacate the entire underlying plea agreement and remand for a new disposition.

State v. Acklin (Lawyers Weekly No. 012-017-22, 7 pp.) (Jefferson Griffin, J.) Appealed from Pitt County Superior Court (Jeffery Foster, J.) Caden William Hayes for the state; Wyatt Orsbon for defendant. 2022-NCCOA-16

Criminal Practice Guilty Plea – Factual Basis – Sentencing After pleading guilty to sale of cocaine and possession of cocaine with intent to sell and deliver, defendant seeks a writ of certiorari to determine whether there was a sufficient factual basis for the offense of selling cocaine. Where (1) defendant’s minimum sentence falls within the presumptive range, (2) defendant’s brief does not address any facet of G.S. § 15A-1444(a2) (allowing a defendant who pleads guilty to appeal in certain limited instances), and (3) defendant failed to preserve the argument he now attempts to bring before this court, we deny defendant’s petition for a writ of certiorari.

Appeal dismissed.

State v. Bowens (Lawyers Weekly No. 012-019-22, 5 pp.) (April Wood, J.) Appealed from Catawba County Superior Court (Nathaniel Poovey, J.) Brittany Pinkham for the state; Joseph Lattimore for defendant.

2022-NCCOA-796

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Workers’ Compensation Litigiousness – Attorney’s Fee Award – Refusal of Second Part of Treatment Where (1) defendants authorized plaintiff’s care to be transferred to Dr. VanDerNoord, a physician that defendants requested in lieu of plaintiff’s preferred treating physician; (2) Dr. VanDerNoord recommended plaintiff receive a two-part treatment protocol involving two sets of facet joint injections; (3) defendants authorized the first set of facet joint injections; and (4) defendants then declined to authorize the second set of facet injections despite a positive response to the first set and no other change in circumstances in the interim, the Industrial Commission properly determined that it could assess costs and attorneys’ fees against defendants under G.S. § 97-88.1 for refusing to authorize the second set of facet joint injections until being forced to do so by the Commission.

We affirm the Commission’s opinion and award.

Enoch v. Monarch (Lawyers Weekly No. 012-020-22, 10 pp.) (Richard Dietz, J.) Appealed from the Industrial Commission. Stewart Poisson for plaintiff; John Morris for defendants. 2022-NCCOA-41

Domestic Relations Parent & Child – Support – Contempt – Insufficient Findings – Extraordinary Expenses – Willfulness The parties’ consent order required each to pay half of their children’s “extraordinary expenses,” for which they would exchange statements. The plaintiff-mother said that she sent the defendant-father “some, but not all” of the statements at issue, and the father testified that he has never received requests for any of the payments that formed the basis for the mother’s contempt motion. The trial court did not resolve this factual dispute, made no other findings to indicate that the father had notice of these expenses, and did not make an express finding of willfulness.

We vacate the trial court’s contempt order and remand for further proceedings.

Kim v. Calloway (Lawyers Weekly No. 012-021-22, 7 pp.) (Richard Dietz, J.) Appealed from Orange County District Court (Joseph Buckner, J.) Noah Oswald for plaintiff; Edward Eldred for defendant. 2022-NCCOA-43

Domestic Relations Parent & Child – Support Modification Motion – Opening the Door – Childcare Expenses Where the defendant-father moved the trial court to modify his child support obligation “consistent with the worksheet relied upon each and every time since these proceedings first began in 2014” and attached to his motion a Worksheet B prepared by the trial court in 2017, defendant clearly opened the door to his income being recalculated and to calculation of work-related childcare expenses. The trial court did not err by including the plaintiff-mother’s work-related childcare expenses in its calculation of the father’s child support obligation as directed by our Child Support Guide-

lines.

We affirm the trial court’s order modifying child support.

In his challenge to the trial court’s findings regarding his income, the father’s entire argument relies upon his interpretation of the evidence as being unquestionably valid and fails to account for the trial court’s finding that his testimony regarding his income was not credible. In addition, in an unchallenged finding of fact, the trial court noted, “Defendant could not explain his business expenses in any detail to the Court at this hearing that would allow the Court to find that an expense was an appropriate business expense.” We are bound by the trial court’s determination that the father’s testimony lacked credibility.

Roth v. Roth (Lawyers Weekly No. 012-022-22, 16 pp.) (Valerie Zachary, J.) Appealed from Wake County District Court (David Baker, J.) Jonathan McGirt for plaintiff; Scott Allen for defendant. 2022-NCCOA-47

Domestic Relations Parent & Child – Neglect – Changed Circumstances Even though the respondent-mother had a history of neglect, unstable housing, unstable income, “legal issues” and incarceration, failure to submit to drug screens, and failing to be present for a January 2015 hearing, by the time of the trial court’s February 2021 hearing on her motion for review, mother had been working together with her son “Jon’s” caretaker, had visited Jon often and consistently, had secured an apartment in which she had resided with four of her children for almost two years, had taken good care of these four children, was no longer on probation, had not incurred any new charges since 2013, and had secured stable income. Furthermore, since he was granted custody of Jon in 2015, the respondentfather had left Jon in the caretaker’s home, where Jon had been living for years by the time of the review hearing, had visited Jon inconsistently, had unstable housing, and had pending drug charges against him. Given the changes in the parents’ lives, the trial court did not abuse its discretion in concluding that it was in Jon’s best interest to have custody changed from father to mother.

We affirm the trial court’s modification of its earlier custody order.

In re J.B. (Lawyers Weekly No. 012-023-22, 17 pp.) (John Arrowood, J.) Appealed from New Hanover County District Court (J. H. Corpening, J.) Lee Gilliam for respondentappellee; Mary McCullers Reece for respondent-appellant; Matthew Wunsche for guardian ad litem. 2022-NCCOA-42

Real Property Interlocutory Appeal – Sovereign Immunity – Purchasers – No Substantial Right Plaintiff claims that (1) she sold her real property under “extreme duress” because, after she began preparing the land to allow a bottling company access to a spring located on the land, the land’s present-use forestry classification was revoked and she was assessed back taxes and (2) the defendant-tribe improperly expanded “Indian country” by purchasing the property (from plaintiff’s buyers).

Since the parties who bought the land

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from plaintiff remain as defendants in this action, the trial court’s grant of the tribe’s motion to dismiss on the basis of sovereign immunity does not deprive plaintiff of a substantial right which would entitle her to immediate appellate review.

Appeal dismissed.

We are not persuaded that plaintiff would lose the opportunity to make her argument absent immediate appellate review. Plaintiff voluntarily sold the land to defendants Westridge Ranch, LLC, and Walter Ellsworth in 2016, and she does not currently have an ownership interest in the land.

Although plaintiff claims that the property was sold under duress, the parties to whom the property was sold are the remaining named defendants before the trial court. Plaintiff still has the ability to pursue the claims she has filed against them before the lower court. Because plaintiff advances no argument as to how a substantial right of her own would be lost absent immediate review, we dismiss her appeal as interlocutory.

Miller v. Eastern Band of Cherokee Indians (Lawyers Weekly No. 012-024-22, 9 pp.) (April Wood, J.) Appealed from Graham County Superior Court (William Coward, J.) Reid Goldsby Miller, pro se; Dale Curriden and Marie Claire O’Leary Smith for defendants. 2022-NCCOA-45

Tort/Negligence Medical Malpractice – Interlocutory Appeal – Rule 9(j) & Res Ipsa Loquitur In her negligence action against the defendant-doctor and the defendantmedical practice, plaintiff did not comply with N.C. R. Civ. P. 9(j). However, plaintiff claims medical negligence on the basis of res ipsa loquitur, based on allegations that defendants prescribed her a penicillin-based antibiotic after plaintiff disclosed that she was allergic to penicillin. Accordingly, we are not persuaded by defendants’ contention that “immediate appellate review [of the trial court’s denial of their motion to dismiss] is particularly appropriate given the facts of this case as it is the only procedural mechanism that can protect Defendants’ substantial right to be free from actions that do not comply with Rule 9(j).”

Appeal dismissed.

Defendants also contend immediate review is appropriate because “the trial court’s order affects Defendants’ substantial right to be free from inconsistent verdicts.” Defendants specifically argue that absent immediate appellate review, the case would erro-

neously proceed to trial. Thereafter, “if Plaintiff were to be successful at trial, it is reasonably possible that only one defendant would appeal,” allowing the case to be retried as to that defendant.

Defendants’ contention that a risk of inconsistent verdicts exists is speculative because it is dependent on plaintiff’s success at trial and only one defendant returning to this court. As we have previously held that a risk of inconsistent verdicts appears where there are overlapping factual issues between the claims appealed and any remaining claims, and all claims have been appealed here, defendants failed to meet their burden in justifying our acceptance of this interlocutory appeal.

Revis v. Schleder (Lawyers Weekly No. 012-025-22, 9 pp.) (April Wood, J.) Appealed from Buncombe County Superior Court (Marvin Pope, J.) No brief filed for plaintiff; Adam Peoples, Kaitlyn Myers, Carrie Meigs, Justin May and Mason Maney for defendants. 2022-NCCOA-46

Criminal Practice Indecent Liberties – Jury Instructions – Double Jeopardy – Invited Error Defendant argues that the jury instructions given by the trial court may have allowed the jury to convict him of two counts of taking indecent liberties with a child based on just one act. However, where it was defendant who requested the jury instructions of which he now complains, any doublejeopardy error was invited by defendant.

We find no error in defendant’s convictions of one count of statutory sex offense with a child under fifteen and two counts of taking indecent liberties with a child.

At defendant’s request, the trial court gave two pattern jury instructions for indecent liberties. The first instruction defined the first element of an indecent liberty as “an immoral, improper or indecent touching or act by defendant upon the child.” The second instruction said the first element was “that defendant willfully committed (or attempted to commit) a lewd or lascivious act upon a child.”

In its closing argument, the state remarked that the same three acts (kissing, fellatio, and attempted anal penetration) could each satisfy the first element of the indecent liberties charges.

Defendant did not object to either the state’s closing argument regarding the acts capable of constituting indecent liberties or the jury charge

at trial; and, when the jury asked for clarification on the first element of an indecent liberties charge midway through deliberations, defendant remarked that “probably the safest way to go about it would be to ... read that pattern jury instruction to [the jury] and leave it at that.”

Defendant contends the trial court erred in failing to instruct the jury that he could not be convicted of two indecent liberties counts for the same act. However, defendant invited any alleged error, and we need not further review his argument.

Defendant contends he did not invite the alleged error because he did not request or assent to the absence of a separate instruction on double jeopardy. This characterization ignores the fact that, to the extent double jeopardy concerns arose from the trial court’s instructions, they arose because defendant requested instructions on indecent liberties that did not factually differentiate between the acts alleged to have constituted the offense. Therefore, since he asked for the exact instruction that he now contends was prejudicial, any error was invited error.

No error.

Concurrence

(Dillon, J.): As an alternative ground, any error in the jury instructions does not rise to the level of plain error. Though any error in the jury instructions might rise to the level of prejudicial error (that it is reasonably possible that the jury relied on the same act to support both convictions), any such error did not rise to the level of plain error (that it is reasonably probable that the jury relied on the same act).

State v. Hugayes (Lawyers Weekly No. 012-026-22, 12 pp.) (Jeffrey Murphy, J.) Appealed from Lenoir County Superior Court (Frank Jones, J.) Mary Lucasse for the state; Jarvis John Edgerton for defendant.

2022-NCCOA-49

Criminal Practice Sentencing – Murder & Other Charges – Anders Brief Defendant pled guilty to first-degree murder, first-degree kidnapping, armed robbery and felony assault on a local detention officer causing physical injury, and his plea agreement specifically addressed sentencing: defendant would be sentenced to life without parole on the murder charge, and sentences for the other charges would run consecutive to each

other and concurrent with the murder sentence. In each judgment, the trial court sentenced defendant within the presumptive range and did not exceed the maximum duration of punishment for any judgment. The trial court did not err in sentencing defendant along statutory guidelines.

We affirm the trial court’s judgment.

State v. Dawson (Lawyers Weekly No. 012-027-22, 11 pp.) (John Arrowood, J.) Appealed from Surry County Superior Court (Angela Puckett, J.) Michael Bulleri for the state; Leslie Rawls for defendant. 2022-NCCOA-48

Criminal Practice Separate Assaults – Distinct Interruption – Ineffective Assistance Claim – Opening the Door Defendant first attacked his girlfriend inside her car while she was seated in the driver’s seat and defendant was in the passenger seat. Defendant then got out, walked around to the driver’s side, opened the door, and began hitting the victim again.

The victim jumped out of the car in an attempt to flee, but defendant grabbed her by the throat, threw her back into the front passenger seat and threatened to kill her if she got out of the car again. The change in defendant’s location when he left the car and walked to the driver’s side, combined with the interruption in the momentum of the attack when the victim tried to flee and defendant forced her back into the car, demonstrate a sufficiently distinct interruption between the assaults.

We find no error in defendant’s convictions on two assault charges.

We dismiss defendant’s claim of ineffective assistance of counsel without prejudice to his filing of a motion for appropriate relief.

The trial court ruled that it would not admit evidence that defendant had previously held a knife to the victim’s throat. But when defense counsel cross-examined the victim, counsel asked if she recalled jumping from a second-story balcony and whether she did so “in the same fashion” that she jumped out of the car during the events at issue in this case. On redirect, the prosecutor then asked the victim why she jumped from that second-story balcony, and the victim explained that defendant was abusive and held a knife to her throat that day.

There are a number of plausible strategic reasons for pursuing this line of questioning, most notably to show that the victim acted erratically.

Evidence of that erratic behavior sup-

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22 / OPINION DIGESTS ported the defense theory that the victim’s injuries could have occurred when she jumped out of the moving car. Because there are factual issues concerning counsel’s strategy, this is not a case where we can assess the ineffective assistance claim on a cold record on direct appeal.

State v. Johnson (Lawyers Weekly No. 012-028-22, 7 pp.) (Richard Dietz, J.) Appealed from Alamance County Superior Court (David Lambeth, J.) Lee Miller for the state; Joseph Lattimore for defendant.

2022-NCCOA-50

Tort/Negligence Prisons & Jails – Governmental Immunity – Inmate Death – Deliberate Indifference After being advised of decedent’s medical issues, the defendant-jailers placed decedent in the jail’s medical unit. Nevertheless, within 24 hours, decedent was discovered unresponsive and cold to the touch, and defendants had allegedly failed to conduct their required rounds. Plaintiff’s allegations are sufficient to overcome defendants’ assertions of various kinds of immunity. However, we clarify that governmental immunity applicable to plaintiff’s claims for wrongful death and injury to prisoner against the defendant-jail director in her official capacity is waived only to the extent of the sheriff’s bond for these claims.

We affirm in part, dismiss the appeal in part, and remand.

Allegations

Police raided the home of decedent’s brother, G. Taylor. The defendant-police officer threw decedent to the floor and placed his knee on her neck.

Decedent was arrested on substance abuse charges. Taylor, who was also arrested, told police that decedent needed medical attention, and he told jail officials that decedent suffered from substance abuse issues, high blood pressure, shortness of breath and chest pains. Taylor also expressed concern because of excessive force used during decedent’s arrest.

The defendant-jail officials placed decedent in the jail’s medical unit.

However, they did not conduct their required rounds. Within 24 hours, decedent was discovered unresponsive in her cell, blue and cold to the touch.

The Department of Health and Human Services found the jail was not in compliance with applicable regulations. The defendant-detention officer failed to complete her documented rounds, and any documentation of such rounds was not completed contemporaneously with the rounds.

Medical personnel failed to properly screen, monitor and diagnose decedent for substance abuse and the health conditions that Taylor had advised defendants that decedent had.

Discussion

Since a sheriff is a local county officer rather than an arm of the state, a sheriff is a “person” for purposes of 42 U.S.C. § 1983. Accordingly, the defendant-jail director—an employee of the sheriff—is a “person” under § 1983 and can be sued for monetary relief in her official capacity. With respect to claims against them in their official capacities, a sheriff and his employees are not entitled to qualified immunity.

Plaintiff’s allegations about the jail’s lack of adherence to official policies may have constituted the driving force of the alleged constitutional violation; consequently, plaintiff has al-

leged sufficient facts to state a deliberate indifference claim against the jail director in her official capacity.

Plaintiff alleges that, despite defendants having notice of decedent’s health problems, decedent did not receive any meaningful health assessment or care at the jail. Plaintiff alleges that the jail director ignored and failed to respond to obvious signs of medical distress and failed to implement required policies of jail administration. Such actions could constitute a deliberate indifference to serious medical needs in violation of the Eighth Amendment. If the jail director ignored requests for medical care or obvious signs of medical distress, then such conduct violates a clearly established right of which the jail director had fair warning, making qualified immunity inapplicable to the claim against her in her individual capacity.

Likewise, if the detention officer ignored obvious signs of medical distress or failed to observe decedent as required, thereby delaying medical treatment, then such conduct violates a clearly established right of decedent of which the detention officer had fair and prior warning, making qualified immunity inapplicable to the claim against her in her individual capacity.

When decedent was discovered unresponsive, multiple hours had elapsed since medical staff had checked on her and documented her status. The jail director, among others, did not maintain any records indicating any specific observations of decedent while she was confined in the medical unit. There facts are sufficient to assert a claim of wrongful death and injury to prisoner.

However, the sheriff and his employees have waived governmental immunity only to extent of the sheriff’s $25,000 bond.

Finally, the defenses of sovereign and qualified immunity are not available to the defendant-sheriff in his official capacity regarding plaintiff’s claim for injunctive relief. Therefore, the trial court’s denial of the motion to dismiss does not affect a substantial right of the sheriff, and he is not entitled to immediate appellate review.

Affirmed in part, dismissed in part and remanded.

McGirt v. Durham County Government (Lawyers Weekly No. 012029-22, 22 pp.) (Darren Jackson, J.) Appealed from Durham County Superior Court (Michael O’Foghludha, J.) Larissa Williamson for defendants; Brandon Atwater for plaintiff.

2022-NCCOA-44

Civil Practice Appeals – Would-Be Intervenor – Abandonment – Dueling Creditors Although a judgment creditor, which had liens on a debtor’s real property, could appeal the superior court’s denial of its motion to intervene in this action—wherein the superior court also extinguished the judgment creditor’s liens—since the judgment creditor failed to cite any authority to support its right to intervene, it has abandoned this issue.

Since the judgment creditor therefore remains a nonparty, it may not appeal other matters addressed in the superior court’s order.

Appeal dismissed.

Woodforest National Bank v.

Edwards Brothers Malloy, Inc. (Lawyers Weekly No. 012-030-22, 11 pp.) (Jeffrey Murphy, J.) Appealed from Harnett County Superior Court

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(Gale Adams, J.) Eric Biesecker for appellant; Tracy DeMarco, David Dragich, January Dragich and Amanda Vintevoghel for appellee. 2022-NCCOA-51

Real Property Condo Owners’ Association – Board Meetings – Attendance & Records Both the defendant-condominium owners’ association’s bylaws and G.S. § 47C-3-108(b) require the association’s board of directors (Board) to, “at regular intervals ... provide unit owners an opportunity to attend a portion of an executive board meeting and to speak to the executive board about their issues and concerns. The executive board may place reasonable restrictions on the number of persons who speak on each side of an issue and may place reasonable time restrictions on persons who speak.”

These requirements allowed the Board to limit owners to attending only one or two Board meetings between annual Board meetings and to limit an owner’s time for speaking to 15 minutes. Plaintiff argues a 15-minute limit is arbitrary because some issues might require more time; however, under plaintiff’s theory, any time limitation would be arbitrary.

We affirm summary judgment for defendants.

Plaintiff contends the Board’s policy prohibiting people from recording Board meetings violated the association’s bylaws because the bylaws contain no express authority for the Board to enact such a rule. But plaintiff points to no provision that limits the Board’s authority on this issue.

The Board had inherent authority to enact and enforce rules for its meetings, and those rules apply to owners attending those meetings.

The association’s bylaws state, “At regular intervals, the Executive Board shall provide Owners an opportunity to attend a portion of [an] Executive Board meeting and to speak to the Executive Board about their issues and concerns.” Plaintiff admitted that he attended a June 2018 meeting, and he offers no evidence that he was not allowed to attend any other meetings in 2018. Therefore, to the extent that the bylaws required Board meetings to be open meetings, the Board was holding its meetings according to the bylaws by allowing plaintiff to attend.

The bylaws say that (1) there is no requirement that a quorum be present and (2) a proposed budget will be deemed ratified unless a majority of the owners present at the budget meeting vote to reject the budget.

Even if plaintiff, who held no proxies, had moved to vote on the proposed budget, he has presented no evidence that any member would have seconded the motion or that any of the members present would have objected to the budget. Thus, under the Bylaws and G.S. § 47C-3-103(c), defendants were entitled to summary judgment on plaintiff’s request that the trial court declare the 2019 budget null and void based on the board’s alleged failure to comply with the bylaws.

Plaintiff argues defendants breached their duty of care in the preparation of the 2019 budget because an alleged shortfall resulted from defendants’ alleged under-collection in the amount of $59,000 that year. However, whether through a later correction of the alleged shortfall in the 2019 budget or through assessments in a budget plaintiff would deem proper, plaintiff would pay the same amount

to correct for defendants’ alleged misrepresentations. Thus, plaintiff has not shown that he suffered any real damages.

Affirmed.

Almason v. Southgate of Fairview Condominium Association, Inc. (Lawyers Weekly No. 012-03122, 16 pp.) (Toby Hampson, J.) Appealed from Mecklenburg County Superior Court (Jesse Caldwell, J.) Nicholas Cushing for plaintiff; James Dedman and Caroline Barrineau for defendants. 2022-NCCOA-62.

Civil Practice Rule 60 Motion – Hurricane Florence – Default – Motion to Set Aside – Delay Where the trial court found that (1) defendant Rizk was a resident of South Carolina, (2) he was unable to attend the original hearing on plaintiff’s motion for summary judgment due to “the approach of Hurricane Florence” which forced mandatory evacuations of the area around Rizk’s home, (3) Rizk’s responsibilities to his family and home during this natural disaster “prevented him from attending the Summary Judgment hearing,” (4) Rizk attempted to reschedule the hearing date but “was denied,” and (5) the trial court’s lower award of damages after a new hearing indicates that Rizk had a meritorious defense that reduced the damages, the trial court did not abuse its discretion when it set aside its original summary judgment order.

We affirm the trial court’s grant of Rizk’s motion to set aside judgment and its denial of his motion to set aside entry of default.

Given that (1) plaintiff properly served Rizk with its summons and complaint in June 2018 and served Rizk with numerous other filings for nearly a year; (2) Rizk waited until May 2019, when plaintiff sought to enforce its default judgment in South Carolina, to appear and seek to set aside the entry of default; (3) Rizk offers no explaining for why he failed to diligently respond to the allegations in the complaint; and (4) plaintiff presented evidence concerning the expenses it had incurred in seeking to enforce the judgment in South Carolina and how it would be harmed if the entry of default were set aside nearly a year after it was entered, the trial court did not abuse its discretion by finding no good cause to set aside the entry of default.

Because Rizk failed to appear and assert his improper venue argument before the entry of default, his forumselection argument is waived.

Associate MD, LLC v. Metabolic Medicine, LLC (Lawyers Weekly No. 012-032-22, 8 pp.) (Richard Dietz, J.) Appealed from Mecklenburg County District Court (Roy Wiggins & Paulina Havelka, JJ.) Harrison Lord for plaintiff; Jeremy Foster for defendant.

2022-NCCOA-63

Attorneys Tort/Negligence – Legal Malpractice – Civil Practice – Statute of Limitations – Rule 12(b)(6) Motion Plaintiff alleges that, in prior litigation brought by Blue Rhino Global Sourcing, defendants committed legal malpractice when they failed to obtain and provide documentation showing (1) plaintiff had sold a limited number of its firepits with the user manuals

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displaying the Blue Rhino trademark and (2) plaintiff’s net profits from the sales were $7,824.73. In the absence of such documentation, the trial court awarded Blue Rhino $185,199.30 in a summary judgment order issued on July 24, 2017. Given plaintiff’s allegation that defendants’ negligence continued until the issuance of the summary judgment order, plaintiff’s July 20, 2020, complaint does not disclose that the three-year statute of limitations set out in G.S. § 1-15(c) barred a legal malpractice action against defendants.

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

Although the summary judgment order attached to the complaint as an exhibit discloses specific dates which may be helpful in determining the last act giving rise to plaintiff’s cause of action, we do not find the dates dispositive in our determination of whether the motion to dismiss was properly granted. In treating the allegations in the complaint as true, we cannot say plaintiff failed to state a claim upon which relief could be granted. Plaintiff’s claim may not be barred by the three-year statute of limitations for legal malpractice actions based upon the allegations in the complaint and was improperly dismissed pursuant to N.C. R. Civ. P. 12(b)(6).

Nothing in this opinion precludes the trial court from addressing this matter pursuant to N.C. R. Civ. P. 12(c) or 56.

Best Choice Products, Inc. v. Hendrick, Bryant, Nerhood, Sanders & Otis, LLP (Lawyers Weekly No. 012-033-22, 10 pp.) (Jeffery Carpenter, J.) Appealed from Forsyth County Superior Court (Richard Gottlieb, J.) Lamar Armstrong for plaintiff; Chad Bomar for defendants.

2022-NCCOA-64

Civil Practice Appeals – Interlocutory – Inconsistent Verdicts Possibility – Frivolous Complaint The admittedly interlocutory order from which plaintiff appeals dismissed his complaint as frivolous and imposed sanctions against him under N.C. R. Civ. P. 11. In order for this order to be immediately reviewable based on the possibility of inconsistent verdicts, the trial court, when considering defendants’ counterclaims after dismissing the complaint as frivolous, would have to conclude that the complaint is actually meritorious. Plaintiff has failed to show that the trial court’s order deprives him of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.

Appeal dismissed.

Bossian v. Chica (Lawyers Weekly No. 012-034-22, 7 pp.) (John Arrowood, J.) Appealed from Wake County District Court (Ned Mangum, J.) John Kirby for plaintiff; Jeffrey Russell, Alice Stubbs and Casey Fidler for defendants. 2022-NCCOA-65

Civil Practice Voluntary Dismissal – Late Re-filing – COVID Anxiety Plaintiff voluntarily dismissed her personal injury complaint on 5 March 2019 but did not refile it until 9 March 2020, four days after the oneyear time extension provided by N.C. R. Civ. P. 41 and more than three years after the 9 December 2014 acci-

dent in which she was injured. Plaintiff has failed to show any evidence in the record or cite to any law in support of her contention that the COVID-19 pandemic created extenuating circumstances that would relieve plaintiff from strict application of the statute of limitations.

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

Governor Cooper did not declare a state of emergency until 10 March 2020, five days beyond the date plaintiff’s complaint should have been filed, and our Supreme Court did not begin extending filing deadlines until 19 March 2020, fourteen days beyond the date plaintiff’s complaint should have been filed. Therefore, without any evidence in the record tending to show plaintiff was suffering from a mental disability that would have tolled the statute of limitations, or indeed, any evidence tending to show the state was in a state of emergency at the time of the deadline on 5 March 2020 or subsequent filing on 9 March 2020, plaintiff’s complaint was barred by the three-year statute of limitations.

Chalileh v. Jenkins (Lawyers Weekly No. 012-035-22, 6 pp.) (Toby Hampson, J.) Appealed from Wake County Superior Court (George Collins, J.) John Austin for plaintiffs; Duane Jones for defendant. 2022-NCCOA-66

Workers’ Compensation Idiopathic Condition – Work Trip Due to an idiopathic condition, plaintiff “rolled” her ankle when she stood up from a couch during a business trip. Since plaintiff’s employment did not place her in a position which increased the dangerous effects of the fall, she did not suffer an injury by accident arising out of her employment.

We affirm the Industrial Commission’s denial of benefits.

Jenkins v. Wells Fargo Bank, N.A. (Lawyers Weekly No. 012-03622, 15 pp.) (Jeffery Carpenter, J.) Appealed from the Industrial Commission. Vernon Sumwalt and Christa Sumwalt for plaintiff; George Kurani for defendants. 2022-NCCOA-70

Domestic Relations Parent & Child – Custody – Constitutional – Grandparents’ Intervention While the intervenor-paternal grandparents’ allegations about (1) their granddaughter’s fear of her plaintiff-mother, (2) the mother’s frequent moves and job changes, and (3) the defendant-father’s pending criminal charges, unemployment, and transportation of the child without a seatbelt were sufficient to give the grandparents’ standing to intervene in this custody matter, the trial court’s findings about the parents do not indicate that their failings had such a negative effect on the child as to overcome their constitutional right to parent her.

We vacate the trial court’s order granting custody to the grandparents and limited visitation to the parents.

Remanded for further proceedings.

A parent’s deliberate refusal to provide a basic education is neglect inconsistent with parental status. However, the trial court merely found that the mother, who was primarily responsible for transporting the child to school,

had to drive more than an hour each way to take the child to school and suffered car problems.

The trial court did not find that the mother’s failure to take the child to school was volitional, as opposed to the result of an unexpected socioeconomic circumstance because she lacked a working car. Likewise, the court did not find that the child’s difficulty in school resulted from the parents’ failure to ensure her regular attendance.

Without those findings, the child’s absences from school are insufficient, standing alone, to conclude that the mother has forfeited her constitutionally protected status.

The mother’s frequent moves, a photo of the child in a bedroom with no sheets or pillowcases on the bed, and photos of the child with “dirty fingernails and an unkempt condition” do not indicate conditions that are so unsafe or unsuitable that they cause substantial harm and thus amount to unfitness.

The trial court found that the father has health problems, inconsistent employment, could not produce evidence of income, and that the child would stay with the father in a mobile home that was heated by a woodstove that burned coal. Under Dunn v. Covington, 272 N.C. App. 252, 846 S.E.2d 557 (2020), none of these socioeconomic factors suggest unfitness or conduct inconsistent with the father’s constitutionally protected status without additional findings that these factors result in substantial harm to the child.

Although the grandmother once saw the father driving the child “without her seat belt in a vehicle without working tail lights,” there was no finding of willfulness. Without that finding, this single incident, standing alone, is not sufficient to show that the father has forfeited his constitutionally protected status.

The existence of unproven sex offense charges, without more, is insufficient to demonstrate unfitness or forfeiture of a parent’s constitutionally protected status.

The trial court found that, viewed cumulatively, the parents’ conduct “impacts the present and could impact the future” of the child. But the trial court did not make a finding concerning how that conduct impacts or could impact the child—indeed, the finding does not even indicate the impact is detrimental.

Our holding does not suggest that the record would not support the necessary findings. We hold only that those findings are not present in the challenged order.

Vacated and remanded.

Evans v. Myers (Lawyers Weekly No. 012-037-22, 12 pp.) (Richard Dietz, J.) Appealed from Rowan County District Court (Charlie Brown, J.) Matthew Barton for plaintiff; Spencer Newsome and Cindy Ellis for defendant; Richard Forrest Kern, Mark Spencer Williams and Christine Sprow for intervenors. 2022-NCCOA-67

Real Property Mortgage Foreclosure – Appeals – Incomplete Record – Deed of Trust Versions At the foreclosure hearing below, the debtor attempted to introduce evidence that the deed of trust he signed—which contained handwritten changes—was not the deed of trust that was recorded, but the superior court excluded such evidence based on

its conclusion that the debtor was trying to establish an equitable defense.

Although the debtor’s defense may be legal in nature, the debtor did not include as part of the record on appeal a copy of what he purports to be the actual deed of trust. Since it is the duty of the appellant to ensure that all documents and exhibits necessary for an appellate court to consider his arguments are part of the record or exhibits, and since we are unable to evaluate the arguments of the debtor from the record, we dismiss the debtor’s appeal.

Although the debtor did attach as an appendix to his appellate brief an incomplete copy of the deed of trust he purports to have signed, the debtor has never sought to amend the record in accordance with our Rules of Appellate Procedure to include the document in the record. Accordingly, it is proper for us not to consider the document attached to the debtor’s brief, as it is not part of the record on appeal.

In re Noori (Lawyers Weekly No. 012-038-22, 5 pp.) (Chris Dillon, J.) Appealed from Wake County Superior Court (Vince Rozier, J.) Noorullah Noori, pro se; Gordon Woodruff for appellant. 2022-NCCOA-69

Criminal Practice Juvenile – Restitution – Findings Required – Self-Incrimination On the issue of whether juvenile “Dawson” should pay restitution, the trial court merely said, “Now I do want him to pay an appropriate amount of restitution. I believe that State has asked for $[500.00]. I believe that’s what we can do.” However, the trial court made no findings that this was fair and reasonable for Dawson, that Dawson’s best interest would be served by paying restitution, or that he had the ability to pay.

We remand for findings on the issue of restitution. We find no prejudicial error on the issue of self-incrimination.

The trial court erred when it allowed Dawson to testify without first engaging him in a colloquy about the privilege against self-incrimination.

Nevertheless, Dawson’s testimony was not prejudicial since it was either favorable to himself or consistent with the prior evidence presented by the state.

In re D.A. (Lawyers Weekly No. 012-039-22, 14 pp.) (April Wood, J.) Appealed from Wilson County District Court (Pell Cooper, J.) Vanessa Totten for the state; Kellie Mannette for respondent. 2022-NCCOA-68

Domestic Relations Parent & Child – Custody – Relocation – Insufficient Findings on Remand On remand from this court, the trial court failed to comply with our mandate in several ways: (1) it made almost no findings regarding Johnston County’s potential to enrich the children’s lives; (2) the finding as to the plaintiff-mother’s motive in relocating to Indiana is not supported by competent evidence, given the strained relationship between the mother and her parents at the time evidence was taken at the original hearing; (3) the finding that the mother will comply with visitation is based on an insufficient basis, i.e., that the defendant-father is insistent on adhering to the order; (4) rather than engaging in a thoughtful analysis of the father’s integrity

24 / OPINION DIGESTS in resisting relocation, the trial court instead addressed the father’s role in the collapse of the marriage; and (5) instead of considering the evidence to determine whether it was likely that a realistic visitation schedule could be arranged, the trial court simply concluded that one “should be ordered[.]”

The trial court’s failure to comply with this court’s mandate was an abuse of discretion.

We reverse the custody order and remand. The trial court is to re-start the proceedings, take new evidence, and make an award of custody as will best promote the interest and welfare of the children based on the then currently existing circumstances.

Tuel v. Tuel (Lawyers Weekly No. 012-040-22, 19 pp.) (John Arrowood, J.) Appealed from Johnston County District Court (Addie Rawls, J.) Alicia Jurney for plaintiff; Jeffrey Russell and Evan Horwitz for defendant.

2022-NCCOA-87

Insurance Homeowners’ & General Liability – Day Care – Indecent Liberties – ‘Occurrence’ In a separate action, a mother and her child allege that the child was molested at a home daycare insured by plaintiff. Even though the mother and child allege negligence on the part of one of the home/daycare owners, the plaintiff-insurer has no duty to defend or indemnify its insureds.

We affirm summary judgment for the insurer.

The insurer seeks a declaratory judgment that it is not obligated to defend or indemnify its insureds in an action filed against the insured homeowners and daycare owners, which alleges that one of the owners of the home and daycare sexually abused a minor entrusted to their care. The homeowners’ and general liability policies issued by the insurer restrict covered “occurrences” to those that are unexpected and unintended as viewed from the standpoint of the insured. Where the potentially damaging effects of an insured’s intentional actions can be anticipated by the insured, there is no “occurrence.”

The conduct of the insureds, as alleged in the separate action, do not qualify as unexpected or unintended from the viewpoint of the insureds. As such, the insureds’ actions do not meet the definition of an occurrence, and the policies do not provide personal liability coverage for the mother and child’s negligence claims.

The mother and child further argue that the insurer has a duty to defend because owner Caron Kerby, individually and d/b/a Caron’s Daycare, who herself is alleged of negligence and negligent supervision in the separate action, did not intend that defendant Robert Kerby sexually molest the child. Thus, the mother and child argue the molestation should qualify as an occurrence as applied to Caron, individually and d/b/a Caron’s Day-

C o nt inu e d f r o m 2 ►

connections are, indeed, what makes them part of a single event. But they do not occur at the same moment,” she said. “The newlyweds would surely take offense if a guest organized a conga line in the middle of their vows.

That is because an occasion may … encompass a number of non-simultaneous activities.”

The case before the justices in-

care. However, this attenuation of the nexus between the mother and child’s injury and the mechanism causing the damage is not sufficient to create a genuine issue of material fact as to whether intentional destructive actions qualify as an occurrence covered by the policies.

Section II(A) of the homeowners’ policy and § I(A) of the general liability policy cannot be read to cover intentional damage knowingly caused by an insured, namely Robert, which severally would not qualify as an occurrence, merely because the damages inflicted were not intended by other insureds covered by the policies.

Caron, individually and d/b/a Caron’s Daycare, never purchased, nor did the insurer provide, coverage to protect against the intentional destructive acts of Robert. Therefore, Robert and Caron’s actions that gave rise to the mother and child’s negligence claims do not fall within the coverage of § II(A) of the homeowners’ policy or § I(A) of the general liability policy.

Pursuant to exclusionary clauses in the homeowners’ policy, coverage is excluded where the bodily injury that occurs “is intended by or which may reasonably be expected to result from the intentional acts or omissions or criminal acts or omissions of one or more ‘insured’ persons.” This exclusion applies regardless of whether the insured is charged with or convicted of a crime. Assuming, arguendo, that § II(A) of the homeowners’ policy provided coverage for Robert’s intentional actions resulting from the negligence or negligent supervision of Caron, individually and d/b/a Caron’s Daycare, the insurer would still not have a duty to defend because § II(E) of the policy excludes coverage for damages that occur as the reasonably expected result of an insured’s intentional acts.

The mother and child also allege invasion of privacy based on Robert’s posting a picture of the child on the internet “by or at the direction of [Caron’s Daycare and Caron Kerby,] (and/or their agent/employee) with knowledge of its false nature and commercial impropriety.” Although this claim falls within the “personal and advertising injury” provision of the general liability policy, coverage is excluded because it allegedly arose “out of oral or written publication of material ... done by or at the direction of the insured with knowledge of its falsity.”

Affirmed.

North Carolina Farm Bureau Mutual Insurance Co. v. Kerby (Lawyers Weekly No. 012-041-22, 20 pp.) (Hunter Murphy, J.) Appealed from Wake County Superior Court (Graham Shirley, J.) Walter Brock and Andrew Flynt for plaintiff; William Moore for defendants. 2022-NCCOA-71

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 M arch 14, 2022

court’s grant of defendant’s motion for appropriate relief (one charge was dismissed, and defendant’s prior record level was reduced), the state concedes that the trial court did not address defendant by name in its colloquy about attorney fees. However, the fee award concerned previous counsel, not defendant’s counsel at the time of sentencing. Thus, State v.

Friend, 257 N.C. App. 516, 809 S.E.2d 902 (2018), does not apply.

We find no error.

State v. Lewis (Lawyers Weekly No. 012-042-22, 7 pp.) (April Wood, J.) Appealed from Buncombe County Superior Court (Steven Warren, J.) Robert Pickett for the state; Katherine Jane Allen for defendant. 2022-NCCOA-79

Criminal Practice SBM – Aggravated Offense – Search & Seizure Since defendant was convicted of an aggravated offense and ordered to register as a sex offender for the remainder of his life, under State v. Hilton, 378 N.C. 692, 2021-NCSC-115, and State v. Strudwick, 2021-NCSC127, defendant’s Fourth Amendment rights were not violated by the trial court’s order that he submit to satellite-based monitoring for 10 years after his release from prison.

Affirmed.

State v. McCauley (Lawyers Weekly No. 012-043-22, 6 pp.) (Valerie Zachary, J.) Appealed from Stanly County Superior Court (Kevin Bridges, J.) Sonya Calloway-Durham for the state; Sarah Holladay for defendant. 2022-NCCOA-80

this accusation.

The state then attempted to contradict this outright denial by reading text messages that tended to implicate defendant in an illegal gun sale. Thus, the state used the text messages for the permissible purpose of impeaching defendant’s credibility.

Further, upon defendant’s request, the trial court gave a limiting instruction explaining the text messages should only be considered for the purpose of evaluating defendant’s character for truthfulness. Given the wide latitude the trial court has to admit impeachment evidence, the trial court did not err in admitting the text messages over defendant’s objection.

No error.

State v. Brown (Lawyers Weekly No. 012-044-22, 18 pp.) (Toby Hampson, J.) Appealed from Wake County Superior Court (Paul Ridgeway, J.) Joseph Hyde for the state; Narendra Ghosh for defendant. 2022-NCCOA-73

Criminal Practice Search & Seizure – Assisting Motorist – Community Caretaking Doctrine

On writ of certiorari from the trial

When defendant, a convicted felon, retrieved a handgun from his car, he was not under any threat of violence; therefore, since he was committing the offense of possession of a firearm by a felon, he was not entitled to immunity under the Castle Doctrine when he subsequently shot a man who allegedly began entering his house.

We find no error in defendant’s convictions of voluntary manslaughter and possession of a firearm by a felon.

Since defendant’s claim of self-defense depended on the jury believing his version of events, his credibility was at issue. On cross-examination, the state asked defendant why he had ammunition in his car that did not match the caliber of ammunition needed for the gun in his car. The state followed this question by asking defendant if he traded in guns, and thus, had different calibers of ammunition to match the various guns he bought and sold. Defendant denied

At 1:50 a.m., a deputy sheriff saw defendant’s vehicle on the side of the road with its hazard lights flashing.

When the deputy stopped to assist the motorist, he was not conducting a traffic stop. He did not activate his siren or emergency lights; he asked defendant what was wrong with his vehicle; there is no evidence that the deputy acted in a threatening or intimidating manner, nor did he touch or otherwise constrain defendant. Accordingly, defendant was not “seized” at the time the deputy stopped to render aid.

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

The deputy detected the strong odor of marijuana when he approached defendant’s vehicle and, when asked, defendant admitted to possessing marijuana. The deputy also observed a hand-to-hand transaction between defendant and the person whom defendant had called for assistance with his flat tire and believed defendant was trying to distance or rid himself of contraband. Accordingly, the trial court did not err by denying defendant’s pre-trial motion to suppress, as the deputy had a reasonable, articulable suspicion to investigate a violation of the Controlled Substances Act. Further, the trial court did not err by “conflating” the community caretaking doctrine with the Terry reasonable suspicion standard because, under the community caretaking doctrine, defendant was not seized when the deputy stopped to assist defendant with his vehicle.

State v. Adams (Lawyers Weekly No. 012-045-22, 15 pp.) (April Wood, J.) Appealed from Forsyth County Superior Court (Lori Hamilton, J.) Robert Broughton for the state; Sharon Smith for defendant. 2022-NCCOA-72

volved William Dale Wooden. Wooden had a lengthy criminal history and was convicted in 2018 in Tennessee of being a felon in possession of a firearm. A judge concluded he should qualify for the Armed Career Criminal Act’s sentencing “enhancement.”

That conclusion was based on a 2005 burglary conviction and the fact that he had pleaded guilty in 1997 to 10 counts of burglary for joining in the burglary of 10 units at a ministorage

facility in Dalton, Georgia.

Wooden argued the burglaries should count as one conviction, but lower courts disagreed.

“We’re delighted the Supreme Court agrees that Mr. Wooden is not an armed career criminal and never should have been subject to a fifteen-year mandatory-minimum sentence,” Wooden’s attorney Allon Kedem wrote in an email.

Kedem said that the government

had previously agreed that his recommended a sentence had he not qualified for a stronger sentence under the Armed Career Criminal Act was about two years and he has already served much more than that.

Kedem said that “once he is resentenced, we expect him to be sent back home to his family.”

The Armed Career Criminal Act has been the subject of frequent litigation before the Supreme Court.

Criminal Practice Writ of Certiorari – MAR – Attorney’s Fees

Criminal Practice Castle Doctrine – Possession of a Firearm by a Felon – Prior Bad Acts – Impeachment