North Carolina Lawyers Weekly March 28, 2022

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VOLUME 34 NUMBER 7 ■

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MARCH 28, 2022 ■ $8.50

No UI aid for worker who left after injury ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires

O

ur Top Verdicts & Settlements list for 2021 is the first—and, hopefully, only—list that was fully impacted by the COVID-19 pandemic. As that year began, none of us really knew what it had in store for the legal profession. But as it turned out, our 2021 list ably demonstrates the resiliency of the legal profession and the civil justice system, and their ability to pursue justice even under the most trying of circumstances.

As you look over the list from 2021, there is hardly any sign at all that attorneys were operating in any sort of adverse environment. That was largely true of our 2020 list as well, but the

first three months of that year were largely unaffected by the pandemic, and plenty of other settlement negotiations were surely very close to the finish line when the pandemic closed down courts, and only needed a little bit more of a nudge to get over the line.

There were understandable

See page 6 concerns that 2021 might prove different. The closing of courts caused a backlog of cases awaiting trial, which potentially could have slowed down both trials and settlements. Our list

is only a partial snapshot of the civil justice system, comprised mostly of cases submitted to us by attorneys, but the picture we have suggests that these fears did not come to pass, and attorneys were able to keep the wheels of justice turning at a normal speed even in the face of adversity.

The pandemic is not truly over, of course, but it does seem to finally be receding into history. If so, the civil justice system has done a truly remarkable job of navigating the storm and helping clients bring their cases to a close and get on with their lives.

David Donovan Editor-in-chief

A service technician who was unwilling to move to a different state to take on less strenuous work after being injured on the job wasn’t entitled to unemployment benefits because his decision to leave work wasn’t attributable to his employer, a divided North Carolina Court of Appeals has ruled.

Frank Lennane worked as a service technician for ADT LLC from February 2012 until he left work in November 2018. In 2014, Lennane injured his left knee while on the job and had to undergo surgery. After his surgery, Lennane began to favor his right knee, which caused regular pain in that knee, and also had a permanent partial disability in his left knee.

Following a 2016 merger, service technicians began to perform installation jobs, which were challenging for Lennane due to the condition of his knees. He asked his manager if there were other jobs—such as administrative or clerical work—that he could apply for instead. The employer only had administrative positions in other states and Lennane was unwilling to move.

Lennane took a five-week leave of absence pursuant to the Family and Medical Leave Act (FMLA). When he returned to work, he asked his manager if he could be limited to service calls. Although Lennane’s request was denied because there needed to be a fair balance of work distribution among all the service technicians, his S e e U n e m p l oy m e n t P a g e 5 ►

Attorneys’ fees available for successful appeal of permit challenge ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires A trial court had the authority to award attorneys’ fees after it reversed a state commission’s denial of a permit challenge, a divided panel of the North Carolina Appeals Court has ruled.

In 2019, the North Carolina Division of Coastal Management issued a permit to the state’s Department of Transportation for construction of a new bridge to replace the aging bridges connecting Harkers Island to the mainland of the state, but a group of nearby landowners had concerns about the permit. By law, third parties impacted by this type

of permitting can challenge the regulatory decision through a contested case proceeding, although the Coastal Resources Commission plays a gatekeeping role.

Under N.C. Gen. Stat. § 113A-121.1, a third party “who is dissatisfied with a decision to deny or grant a minor or major development permit may file a petition for a contested case hearing only if the Commission determines that a hearing is appropriate.”

The Commission’s determination must be based on several factors, including whether the person seeking to commence a contested case “has alleged facts or made legal arguments that demonstrate that the request for the hearing is not frivolous.”

The property owners submitted a one-page request for authorization to pursue a contested case challenging the permit. The commission denied the request, stating that the property owners had failed to demonstrate that their request for a hearing wasn’t frivolous.

State law permits judicial review of the commission’s decision. After a hearing, Carteret County Superior Court Judge Charles H. Henry rejected the commission’s determination and remanded the matter for a contested case proceeding.

The court found that the commission’s finding that S e e Pe r m i t P a g e 6 ►

INSIDE VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

COMMENTARY

Distracted driving death leads to $1.8M settlement

$1.275M settlement for auto crash victim

Open letter to a DEI skeptic

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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 28, 2022

LAWYERS IN THE NEWS Kelsey Nix has joined Smith Anderson in Raleigh as a partner and coleader of its intellectual property litigation practice. Nix is an experienced trial lawyer who spent 23 years as a partner at international law firms in New York City. Cherell Harris, John Harris, and Elizabeth “Melissa” Schluter have also all joined Smith Anderson, as associates.

Bradford Sneeden has joined Moore & Van Allen. Sneeden joins the firm’s public affairs group as a director, based in Raleigh. He most recently served as legislative counsel for North Carolina Attorney General Josh Stein and was previously a policy advisor to the governor of North Carolina.

David Yontz has joined Brooks Pierce as a partner in the firm’s Raleigh office. Yontz focuses his practice

on real estate and represents clients in a broad range of commercial real estate matters including acquisitions, dispositions, development, leasing and financing.

Anthony (“Brad”) Eben has joined Conner Gwyn Schenck as an associate in the firm’s Raleigh office.

Eben’s practice focuses on litigation and arbitration of construction claims and disputes. Before joining the firm Eben practiced law in Chicago.

K&L Gates announced that Tucker Idol and Elizabeth Thomsen in its Raleigh office and Coleman Wombwell in its Charlotte office have joined the firm’s partnership.

Cranfill Sumner announced that Rebecca Knudson in the firm’s Raleigh office has been named the vice chair of its construction law practice group.

NEWS BRIEFS N.C. Supreme Court ruling keeps domestic violence ruling intact

N.C. Supreme Court orders new trial for man convicted as teen

RALEIGH (AP) — North Carolina’s Supreme Court has upheld a lower court’s ruling that said domestic violence protection orders in the state must apply to same-sex dating cases.

The state’s highest court on March 11 affirmed and altered a Court of Appeals decision from December 2020 that had involved a woman who ended her relationship with another woman in 2018 and feared for her safety.

The appeals panel had ruled that the state law laying out how protection orders are issued had treated LGBT people differently and therefore violated both the North Carolina and U.S. constitutions.

The law allowed protection orders to be issued between former and current spouses and couples who live or have lived in the same household.

But North Carolina appears to have been the only state that expressly prevented protection orders for people in same-sex relationships who are not spouses or former spouses and who are not current or former household members.

A divided Court of Appeals panel had reversed a local judge’s decision that denied the protection order to the Wake County woman on the basis on the limitations for granting one. The judge did issue a civil no-contact order to the woman, identified in the opinion only by her initials for privacy, but such orders are considered to provide fewer protections.

Several outside groups and individuals had filed legal briefs in the case, including Democratic Attorney General Josh Stein and Gov. Roy Cooper, who both favored the decision.

“Our state constitution provides robust protections against sex-based discrimination, including discrimination arising from sexual orientation and gender identity,” said Irena Como, an attorney with American Civil Liberties Union of North Carolina, which helped represent the woman seeking the order.

The state’s three registered Republicans on the seven-member court joined a dissenting opinion. The court’s majority, Associate Justice Phil Berger Jr. wrote, had ignored rules of civil procedure in part to “allow reverse engineered arguments based on sympathies and desired results.”

RALEIGH (AP) — A North Carolina Supreme Court decision will allow a man convicted as a teenager in the death of a cab driver more than 25 years ago to have a new trial.

Associate Justice Anita Earls, writing for the majority in a March 11 opinion, reversed a Court of Appeals declaration that a lower court judge had erred when ordering a new trial for Utaris Mandrell Reid based on newly discovered evidence.

Reid, now 40, was convicted of first-degree murder and common law robbery for the assault and ultimate death of John Graham in late 1995.

Reid was 14 at the time of the attack in Sanford and was sentenced to life in prison without parole in 1997. Charges against three other juveniles were ultimately dismissed.

Court documents that Reid filed in 2011 included an affidavit from a childhood friend who said he was at his mother’s house with Reid the night of Graham’s assault. The friend also said that another person had confessed to him that he and two others, all named, had robbed and assaulted Graham.

Superior Court Judge C. Winston Gilchrist ordered a new trial in 2018 based on what he said was “credible” and “newly discovered evidence as defined by law.” The decision was overturned by the Court of Appeals.

Chief Justice Paul Newby wrote in a dissenting opinion that the Court of Appeals decision should stand because Reid had failed to persuade that he had taken reasonable steps though his attorney to locate the childhood friend’s testimony before his trial.

N.C. retiree health insurance case left unsettled by top court RALEIGH (AP) — A decade-long legal fight over whether retired government workers were wronged when North Carolina stopped offering them a more generous level of premium-free health insurance remained unsettled after a March 11 ruling by the state Supreme Court.

A majority of justices did agree that the former state employees and teachers had a “constitutionally protected vested right” to remain in a government insurance plan in which the re-

BAR DISCIPLINE

ROUNDUP Attorney: Justice H. Campbell Location: Charlotte Bar membership: Member since 1999 Disciplinary action: Censured on Feb. 16 Background: Campbell represented a client in a personal injury matter and assigned an associate to handle the litigation. The associate failed to respond to the defendant’s discovery requests, and three days before a hearing on summary judgment Campbell instructed the associate to dismiss the case without prejudice without first consulting the client. Campbell later re-filed the lawsuit and attempted service but failed to maintain an adequate chain of summons and maintain a live controversy such that the client’s claim is likely time-barred and he will not be able to recover damages against the defendant. During this period the client made inquiries about the status of his case, and on at least three occasions Campbell falsely informed his client that the matter was still pending and falsely informed the client that he could not recover damages due to the facts of the case and not because of his own failure to maintain a live controversy.

Previous discipline: None Attorney: William R. Shilling Location: Murphy Bar membership: Member since 2004 Disciplinary action: Reprimanded on Feb. 16 Background: Shilling represented a client charged with several counts of abusing her child. While the criminal charges were pending, a parallel juvenile proceeding was pending related to custody of the child and termination of the client’s parental rights. Shilling emailed the attorney representing the child’s foster parents and offered to relinquish parental rights if the foster parents agreed to tell the district attorney that they would not allow the child to testify in the criminal matter. By asking the foster parents not to give relevant information to the district attorney in exchange for his client’s cooperation in the civil matter, Shilling engaged in conduct prejudicial to the administration of justice.

Previous discipline: Shilling was suspended from the practice of law for

tirees paid 20% of their coinsurance while paying no premium—or a plan that was equivalent. That “80/20” premium-free option was no longer offered in September 2011, as state lawmakers and plan leaders looked to close spending shortfalls.

“These retirees reasonably relied on the promise of this benefit in choosing to accept employment with the state.

They are entitled to the benefit of their bargain,” Associate Justice Anita Earls wrote in the majority opinion.

But Earls said it’s unclear whether that right has been impaired to the point that monetary damages are necessary for the former workers. And that could be counterbalanced by whether any harms served a “legitimate public purpose,” such as the legislature or State Health Plan seeking to rein in growing health care costs paid for with taxpayer dollars, she wrote.

The case will now be returned to a trial judge who had initially sided with a retiree legal class of 220,000 former state employees and teachers, but who the justices said went too far.

two years in February 2014. Shilling pleaded guilty to misdemeanor counts of child abuse, communicating threats, and violating a domestic violence protective order, and made multiple false statements to the bar in response to a grievance.

Attorney: David W. Hands Location: Charlotte Bar membership: Member since 2002 Disciplinary action: Reprimanded on Feb. 16 Background: Hands and his paralegal failed to review and verify and the payoff wiring instructions purportedly sent by their client in an email prior to a real estate closing. As a result, the payoff proceeds were wired to a fraudster’s account, resulting in the loss of a significant portion of the proceeds, claims against Hands’s insurers, and a lawsuit filed by the client. Hands also failed to immediately report the theft to the state bar’s trust account compliance counsel.

Previous discipline: None Attorney: Kaycee C. Staehle Location: Denver Bar membership: Member since 2000 Disciplinary action: Reprimanded on Feb. 16 Background: Staehle made double disbursements from her trust account in a real estate transaction, due primarily to her failure to maintain accurate client ledgers and proper reconciliation of her trust account. Staehle participated in the state bar’s trust account compliance program and showed progress but incurred recurring trust account deficiencies, including a negative balance due to failing to stop payment on duplicate checks issued by her and her law firm for a settlement agent’s fees.

Previous discipline: Staehle was censured in 2011 for assisting a corporation in the unauthorized practice of law and sharing a flat fee with the same non-lawyer corporation.

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.

Earls acknowledged that the legal parties may now have to present complicated and competing health care and monetary calculations to the judge, who will collect facts to decide whether retirees were truly harmed and should receive compensation. That could include evaluating whether the options provided to retirees after 2011 were substantially more or less valuable than what the retirees could get when they qualified for health benefits, and if so by how much. The State Health Plan could win the case by proving plans offered now are more valuable.

Although retirees today must pay relatively small monthly premiums for individual coverage under the “80/20” plan, premium-free benefits remain under 30% coinsurance and Medicare Advantage plans. State Treasurer Dale Folwell, whose office oversees the State Health Plan, said in 2017 that that premium refunds of more than $100 million were possible if courts sided with the retirees.

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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 28, 2022

VERDICTS & SETTLEMENTS / 3

Distracted driving death leads to $1.8M settlement ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com The estate of a man who was killed when his vehicle was struck by a distracted driver has settled its wrongful death suit for $1.8 million, the estate’s attorneys report.

Daniel Wallace and Mona Lisa Wallace of Wallace & Graham in Salisbury report that the deceased was a 53-year-old man who was on his way to work on Sept. 30, 2020 when the at-fault driver ran a red light and crashed into his vehicle, the attorneys said. The impact forced open the driver’s door and ejected the man from the vehicle.

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

The attorneys said that the deceased suffered blunt force trauma to the head and chest and died after being rushed to the hospital.

“The at-fault driver admitted that she was distracted and not paying attention when she ran the red light,” the attorneys wrote in an email to LawDaniel Mona Lisa yers Weekly.

Wallace Wallace The attorneys said that at mediation they did not make a claim for lost wages or earning capacity but focused on the pain and suffering their client endured.

Immediately after the incident, the attorneys said, the man’s GCS score—a system used to describe the level of consciousness in a person following a traumatic brain injury—indicated that he was fully conscious, aware, and able to appreciate the pain and distress caused by his lifethreatening injuries.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1,800,000 Injuries alleged: Death Case name: Withheld Venue: Withheld Mediator: Timothy Patti Date of settlement: Feb. 9 Attorneys for plaintiff: Daniel Wallace and Mona Lisa Wallace of Wallace & Graham in Salisbury Attorneys for defendant: Withheld “His physical and cognitive symptoms remained consistent for several hours after the incident until he abruptly declined and ultimately passed away,” his attorneys wrote.

Follow Heath Hamacher on Twitter @ NCLWHamacher

$1.275M settlement for auto crash victim ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com A 25-year-old Johnson County man who was severely injured when his vehicle crashed into a commercial vehicle that had crossed the center line while making a right turn has settled his personal injury case for $1.275 million, his attorneys report.

Bob Whitley and Ann Ochsner of Whitley Law Firm in Raleigh and Luke Durham of Brock Shipe Klenk in Knoxville, Tennessee represented the plaintiff. Whitley Law Firm attorneys wrote in an email to Lawyers Weekly that their client suffered a traumatic brain injury (TBI), a skull fracture, epidural hematoma, and several orthopedic injuries including fractured vertebra and ribs.

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

The client sued the driver of the vehicle and his employer, the attorneys said, seeking past and future medical expenses, physical pain and mental suffering, and damages for his lost earning capacity. The attorneys said that the defense attempted to minimize the man’s earning capacity, asserting that his job as a sandwich maker and his work his-

tory didn’t indicate that he would be a high-income earner in the future.

“Defendants pointed to the fact that Plaintiff was on an Individualized Education Bob Whitley Ann Ochsner Plan and was a low performer in school prior to the crash,” the attorneys wrote.

The defense also tried to minimize the residual effects of the man’s TBI by designating their own medical experts, his attorneys said, arguing that many of his injuries predated the crash.

“Defendants’ experts even testified that Plaintiff had undiagnosed autism spectrum disorder, which existed prior to the crash and had gone undiagnosed for 25 years,” the attorneys wrote. “Plaintiff’s counsel argued that Plaintiff did not meet the diagnostic criteria for this disorder.”

The attorneys said that they shored up the liability case through dash camera footage from the commercial vehicle and a deposition of the at-fault driver and used a life care plan to prove the plain-

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1,275,000 Injuries alleged: Traumatic brain injury, skull fracture, epidural hematoma, and several orthopedic injuries including fractured cervical vertebrae and ribs Case name: Withheld Mediator: Rene Ellis of Durham Date of settlement: Oct. 20, 2020 Attorneys for plaintiff: Bob Whitley and Ann Ochsner of Whitley Law Firm in Raleigh and Luke Durham of Brock Shipe Klenk in Knoxville, Tennessee Attorneys for defendant: Withheld tiff’s future medical care requirements.

Rene Ellis of Durham mediated the settlement.

The client’s case was settled in October 2020. The reporting of the settlement was delayed due to a related dispute that was settled later.

Follow Heath Hamacher on Twitter @ NCLWHamacher

Bail bond surety can keep cash after quick fix to goof ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com A bail bond surety doesn’t have to immediately return a premium to a defendant if a good-faith mistake leads to an alleged pre-trial breach of bond conditions and the surety, after realizing the mistake, re-writes the bond without charging another premium, the North Carolina Court of Appeals has ruled in a case of first impression.

In 2015, Mickey Snow was indicted on several charges related to the alleged sexual abuse of a minor. Snow—a man of substantial means—was arrested while visiting Thailand and returned to the U.S., where he was held at a Rockingham County jail. For a $1 million premium, Bankers Insurance Company secured his release on the $25 million bond. Snow and his company, Snow Enterprise, also provided collateral in the form of $20 million cash and at least $5 million in real estate.

In 2017 while Snow was on a court-approved trip to Florida, where he owned a home, authorities lost track of him for two hours when the battery in his electronic monitoring device died.

Snow charged his device when he returned home from an outing, but he was arrested for alleged violations of his pre-trial release conditions.

Bankers filed what’s known as a surrender form, stating that Snow has breached his bond

obligation and asking to be exonerated from its bond obligation. A superior court judge found that Snow had committed no violation and ordered him released from jail with the same bond amount and conditions as before. The next day, Bankers wrote Snow a new bond without charging an additional premium. Snow remained on the bond until approximately nine months later, when the criminal matters were resolved via plea bargain, and Bankers then released his collateral.

A month later, Snow for the first time asserted that Bankers should have to return the $1 million premium because the surrender form stated that his surrender on the original bond was a pre-breach surrender, but the judge ruled that he hadn’t violated the terms of his pre-trial release. Bankers disputed the claim, arguing that the full $1 million premium had been earned upon Snow’s release from custody, consistent with the bond application and agreement.

In a unanimous Mach 1 opinion, the Court of Appeals agreed with the surety and ruled that Snow was estopped from recovering the premium because he benefited from the re-written bond. Judge Darren Jackson, writing for the court, said that while Snow now claims that he didn’t expressly authorize the new bond, he didn’t request a premium refund or the return of his collateral at any point prior to his guilty plea.

“In other words, just over a month after his criminal charges were resolved—almost a year after the Surrender Form was filed—and after being free on bail for nearly three years while the criminal charges against him were pending … Mr. Snow argued that Defendant was required to return [his collateral] approximately a year earlier,” Jackson wrote.

Under state law, a surety must return a bond premium within 72 hours if it surrenders a defendant because of an alleged breach that a court later determines is not a breach, Jackson noted. But in Snow’s case, Bankers secured his re-release through a new bond, returning him to the position he was in before he was returned to jail after authorities mistakenly believed he might have intentionally gone off grid.

“If the surety returns both itself and the defendant to the same position each occupied before the suspected breach, and the defendant is released from custody and does not raise any objection or request a return of the bond premium before he is released, we hold that the defendant is estopped from later seeking recovery of the bond premium,” Jackson wrote.

Under a quasi-estoppel theory, accepting a transaction and enjoying its benefits may bar the taking of an inconsistent position regarding the transaction later, even where “acceptance is involuntary, arises by necessity, or when a See Page 5 ►

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 28, 2022

Open letter to a DEI skeptic ■ BY TRENT B. COLLIER My law firm is one of many to form a committee on diversity, equity, and inclusion, or DEI, over the past few years. You’re right: this seems to be a national trend.

More and more firms view DEI work as a chance to put the legal profession’s core values into practice.

But I understand you’re skeptical about DEI work and that many in the legal profession greet DEI initiatives with eye rolls and disdain.

Those opposed to DEI initiatives offer three main arguments. First, there’s the argument that DEI work is empty virtue-signaling—a false posture for “likes” on LinkedIn posts. Second, some argue that DEI emphasizes our differences when we should focus instead on our common humanity. Third, some believe that DEI work can only open doors for some if it closes doors for others. And if this dooropening decision hinges on, say, race or gender, then DEI is inherently prejudicial in their view.

I think it’s important for those of us who value DEI work to understand these criticisms as offered in good faith and to respond in kind. Here’s my attempt.

DEI is about more than collecting ‘likes’ on LinkedIn

Let’s start with the first criticism—your argument that DEI is just theater. Talk of DEI certainly can be empty sloganeering sometimes. We all fall short of the principles we espouse; it doesn’t follow that those principles lack merit.

To understand why DEI initiatives are not theater, it helps to consider some of the core beliefs underlying this work.

First, there’s the recognition that we spend our lives making choices that open some doors and close others. When we pick a law school, for example, that opens certain doors (like the influence of certain professors or the assistance of certain alumni) and closes others (like the professors and alumni at other schools).

Which doors we choose depends in part on which doors we think are available to us. We ask ourselves if there’s room for someone like us on the other side. DEI committees exist because we want the answer to be an emphatic yes—without regard to race, gender, religion or any similar trait—for every door in the legal profession. That’s what DEI committees mean when they talk about “representation.”

DEI work also arises from the recognition that, as our careers progress, we find ourselves holding the keys to certain doors—to jobs, to promotions, to opportunities, to raises and so on. We want to be good stewards of those doors.

And being a good steward means ensuring that those doors are open to anyone qualified to use them.

This equal-protection principle is a constitutional value—one of the rules we pledge to support when we earn a bar card—and we can uphold that value only if we act with intention.

DEI work also demands a little humility. It recognizes that we are

flawed human beings who are not always aware of our own biases.

We may close doors to others based on assumptions we hardly know we’ve made. Just as you cannot choose an antidote until you identify the poison, you cannot address bias until you identify it. That work starts with our own biases.

What does DEI look like on the ground? Judging from firms around the country, DEI means actions like: Keeping track of who gets invited to client meetings to make sure everyone is getting opportunities to grow their business.

Doing more to recruit from underrepresented groups, such as sending job openings to affinity bar groups.

Reviewing salaries to look for pay gaps.

Encouraging attorneys to share their pronouns so everyone feels free to be themselves.

Investing in underprivileged communities to ensure that today’s young people have the opportunity to become tomorrow’s leaders.

The list could go on and on. The point is that DEI work involves deliberate actions, grounded in constitutional values, that can make a difference in people’s lives.

Ignoring race and other characteristics is not neutral

You’ve argued that the only ethical and legal response to discrimination is to take no account of race or any similar characteristic. That idea finds an ally in Chief Justice Roberts, who wrote in 2007 that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

In a sense, you’re right. If we were creating a new society from scratch, without a history, this idea might have merit. We all want a society where people have the same opportunities no matter their race or gender or religion or so on. If we could work from a blank slate, of course we’d prefer to take such considerations off the table.

But we’re not working from a blank slate.

Our culture has a long history of discrimination against certain groups. Indeed, our Constitution itself originally included a racist compromise designed to preserve slavery—an institution of unfathomable racism, violence and cruelty. Things may be better today.

But racism, sexism, and other forms of discrimination remain painful realities for many Americans. We have miles to go before we can declare victory over discrimination—particularly when much of that discrimination comes from complex institutions and unconscious biases.

The truth is that refusing to acknowledge race and other protected characteristics is not a neutral position. At its worst, it’s a position that perpetuates harm while polishing its own halo. We form DEI committees because we recognize this country’s history and we recognize the discriminatory forces still at work today. We cannot accept facile answers to complicated problems—at least not if we intend to solve those problems.

DEI need not come at somebody’s expense

Finally, I’ve heard you argue that DEI is inherently discriminatory—that we can only ensure one group’s success while robbing another group of its success. What’s often at the heart of this somebody-has-to-lose criticism is the fear that one group—white, heterosexual men, usually—are going to be on the losing end of every decision now.

It’s tempting for DEI-minded folks to respond that white, heterosexual men have had unfair advantages for hundreds of years and would be wise to keep their bellyaching to themselves. But you’re right. That response isn’t helpful or even persuasive. We don’t punish children for their parents’ sins; we shouldn’t justify discrimination against a group today based on that group’s discrimination in the past.

Instead, we can rely on a healthy dose of truth. And the truth is that not everything is a zero-sum game.

We can work toward diversity, equity and inclusion without creating new forms of inequality. We can make sure every voice is heard without silencing any voices.

For example, if a firm is looking for a new associate, it could just place its ad with the usual outlets and forego any DEI considerations.

Alternatively, it could make sure its ad gets the widest possible audience by deliberately reaching out to affinity bar groups. Increasing the audience doesn’t harm anyone. To the contrary, the increased competition only increases the firm’s odds of making a great hire.

No one loses.

Or consider what happens when a firm looks critically at its standard operating procedure. It might discover that having every firm event revolve around that old lawfirm standby, alcohol, sends an exclusionary message to those who avoid alcohol for religious or other reasons. That doesn’t mean that a firm must eliminate all events featuring alcohol. Instead, it means planning some events that don’t revolve around alcohol. No one loses.

Or think about how DEI initiatives might work when it comes to hiring decisions. Becoming more mindful of your unconscious biases—of all the little presumptions shaping personnel decisions—only helps you combat those biases. And combatting those biases helps you make a better decision—one based on the things that really matter.

Maybe you find yourself more drawn to candidates with familiarsounding names rather than those with unfamiliar names. That’s a silly reason for a personnel decision, so out it goes. Or maybe you find yourself presuming that a former college football player is less intelligent than a former college chess player. Again, a bad assumption. Out it goes.

Or maybe you realize that you view a soft-spoken candidate as less capable of handling courtroom rough-and-tumble than a more boisterous candidate. That assumption is hardly grounded in See Page 5 ►

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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 28, 2022

UNEMPLOYMENT / C o nt inu e d f r o m 1 ►

manager made attempts to not dispatch him on the most strenuous or large installations.

In November 2018, Lennane notified ADT that he was resigning because he was no longer able to perform his job due to the physical condition of his knees. Prior to his resignation, he did not make any formal or written requests for workplace accommodations.

Lennane then filed for unemployment insurance benefits.

An adjudicator held that Lennane was disqualified for benefits, and he appealed. An appeals referee affirmed the decision following a hearing, determining that Lennane was disqualified for unemployment benefits because he’d failed to show good cause attributable to the employer for leaving as required by N.C.G.S. § 96-14.5(a).

The Board of Review for the North Carolina Department of Commerce adopted the findings of fact and affirmed, as did the superior court. A divided panel of the Court of Appeals also affirmed and Lennane appealed again. In a March 11 opinion, Justice Tamara Barringer, writing for a 4-3 majority, affirmed the denial.

“Having considered the legislature’s declared public policy, the plain language of the applicable statute, and the binding findings of fact, we conclude that Lennane failed to show that his leaving work was attributable to his employer as required by N.C.G.S. § 96-14.5(a),” she wrote.

Causal link lacking

According to N.C.G.S. § 96-14.5(a), an individual “does not have a right to benefits and is disqualified from receiving benefits if the Division determines that the individual left work for a reason other than good cause attributable to the employer.”

The burden of showing good cause attributable to the employer rests on the individual and good cause exists when an individual’s reason for leaving “would be deemed by reasonable men and women valid and not indicative of an unwillingness to work.”

Lennane argued that ADT acted by changing his job duties when it increased the amount of installation work required for his position and failed to act by not implementing his request to only be assigned service calls.

He also told the court that his unwillingness to relocate for an administrative position didn’t support the conclusion that he left work without good cause attributable to his employer.

“Admittedly, Lennane’s employer modified the allocation of installation jobs to service technicians two years before Lennane left work, and Lennane had difficulty performing installations because of pain in his knees,” Barringer wrote. “However, the findings of fact do not support the causal link required by N.C.G.S. § 96-14.5(a) between the employer’s action (change in allocation of installation work) or inaction (not ceding to Lennane’s request) and Lennane’s leaving.”

Lennane hadn’t demonstrated that his allocation of installation jobs as modified by his employer in 2016 was more detrimental to his health than his prior duties and responsibilities, Barringer said. Before 2016, he performed service calls as well as installations at times, and his knee problems predated the 2016 modification.

“There is no finding that the installations increased the amount of pro-

longed standing and walking by Lennane relative to service calls,” which were the reasons for the only medical request he provided to ADT, Barringer wrote. “Thus, we cannot conclude that the employer’s action caused Lennane’s leaving.”

‘A more limited individuals’

subset

of

Despite expressing her sympathy, Barringer declined to “fill in the facts” for Lennane.

“Our legislature expressly placed on the individual the burden—that cannot be shifted to an employer—to show good cause attributable to the employer when the individual left work,” Barringer wrote. “Given the requirement of attribution to the employer under N.C.G.S. § 96-14.5(a), we must consider both an individual’s and employer’s efforts to preserve the employment relationship when assessing whether the individual’s leaving is attributable to the employer.”

Lennane made some efforts to preserve his employment: he kept his employer informed of his physical health conditions, he asked his manager if there were other jobs and he took FMLA leave. In response, the employer made efforts to preserve the employment relationship by not dispatching him on the most strenuous or large installations and advising him about open administrative positions.

“Although Lennane left work for good cause as conceded by the Division, the legislature created unemployment insurance for a more limited subset of individuals: those who left work for ‘good cause attributable to the employer,’” Barringer wrote.

“Here, the employer made available to Lennane an administrative position as Lennane specifically requested. The employer offered positions in all the locales where the employer had such positions. The employer, thus, acted.

Lennane still left, but his employer’s inaction did not cause Lennane’s leaving. Lennane had made other requests to his employer, but an employer need not cede to every request of an individual employed by the employer to avoid having his inaction deemed the cause of an individual’s leaving.”

Justice Anita Earls dissented, joined by Justices Robin Hudson and Samuel Ervin IV. Joseph Chilton of Legal Aid of North Carolina in Sylva represented Lennane.

“To lose by one vote three times is really frustrating, especially for a client who is a wonderful man who didn’t want to leave his job, it just turned into something he couldn’t physically do,” Chilton said.

Chilton cautioned attorneys working on the employee side of benefits cases that the decision leaves them with an uphill battle, as “the majority came up with a balancing test that balances the employer and employee efforts to preserve the employment relationship. For practical purposes, it seems to be a standard that the employer was more attributable than the employee.”

R. Glen Peterson of the North Carolina Department of Commerce, Division of Employment Security, handled the appeal for the agency. He could not be reached for comment.

The 29-page decision is In re Lennane (Lawyers Weekly No. 010-02822). The full text of the opinion is available online at nclawyersweekly. com.

Sidebar The news told differently

BOOK HIM In prison, legal research and law books can serve as an enduring source of hope in a place where hope scarcely resides. And when someone does something that could dash that hope, an inmate serving life for first-degree murder might be compelled to take matters into their own hands.

And that’s what lifer Carl Brewton, who has racked up a mind-boggling 98 infractions in his 27 years in prison, did when a correctional officer at the Tabor Correctional Institute took his legal materials and destroyed them.

The officer likely never saw it coming—a pro se claim filed by Brewton against the entire North Carolina Department of Public Safety.

According to a March 15 ruling by the state’s Court of Appeals, the officer “negligently” seized and destroyed 10 law books that Brewton was apparently using to do legal research for his own defense in a criminal case.

The department allows inmates to possess legal materials, though it regulates the amount. Where there’s excess, assuming the items aren’t contraband, the inmate is supposed to be given an opportunity to mail the items home before they’re tossed.

It’s unclear whether Brewton was offered such an opportunity, but the full Industrial Commission determined that the officer acted negligently and awarded Brewton $100 for the loss of use and enjoyment of his books.

It neglected, however, to give Brewton any money for the value of the books.

The appeals court cited case law in finding that where a plaintiff’s property is destroyed through negligence, the plaintiff is entitled to damages equal to the value of that property. Brewton has presented some evidence as to the market value of the books, the court found, but how much he receives will be up to the Industrial Commission on remand.

One thing is apparent to Sidebar, though: The sooner Brewton (who prison records show is serving double life) can replace his research materials, the better—he is going to have to author one persuasive argument if he wants to write a new chapter to his life.

Heath Hamacher

C o nt inu e d f r o m 4 ►

fact, so out it goes.

Uncovering these biases harms no one. Instead, that process eliminates noise and equips firms to make better hiring decisions.

Why should you participate in DEI work?

Ultimately, there are many reasons for firms to spend time and money on diversity, equity and inclusion. For some, it’s the oath we take to support the Constitution and its guarantee of equal protection. For others, it’s the principle that we should treat others the way we want to be treated. And maybe it’s the fact that DEI work equips the legal profession to serve the public and our clients much better. Just as genetic diversity increases a population’s health, diversity of every kind makes our

C o nt inu e d f r o m 3 ►

party voluntarily accepts a benefit in order to avoid the risk of harm.”

Snow argued that he never expressly authorized the surety to re-write the bond, but couldn’t deny that he reaped its benefits, the court found, adding that voluntariness is not an element under the doctrine of quasi estoppel.

“Plaintiffs essentially seek to retain the benefit of the surety’s services without paying anything for this benefit,” Jackson wrote.

Judges Jeffery Carpenter and Toby Hampson concurred in the decision.

Lori Jones of Jordan Price Law Offices in Raleigh represented

law firms stronger.

If this letter doesn’t convince you of the value of DEI work, you might try something else: participating in your firm’s DEI committee. There’s no better way to see that DEI is more than a catchphrase, that ignoring issues like race and gender only perpetuates harm, and that firms can advance diversity, equity, and inclusion without engaging in discrimination.

Is every DEI initiative perfect?

Of course not. No human endeavor is. But DEI work is slowly, steadily improving our profession. And that effort could use your input, too.

Trent Collier is a co-chair of the appellate group at Collins Einhorn Farrell PC in Southfield, Michigan. His practice focuses on civil appeals, commercial litigation and professional-liability defense.

Bankers. Jones did not immediately return a request for comment.

Bob Edmunds, Kip Nelson, and Elizabeth Scherer of Fox Rothschild in Raleigh and Grady Richardson Jr. and Jennifer Carpenter of Wilmington represented Snow and his companies. Fox Rothschild attorneys didn’t immediately return a message seeking comment.

Richardson declined to comment on the ongoing litigation.

The 29-page decision is Snow Enterprise LLC v. Bankers Insurance Co. (Lawyers Weekly No. 011049-22). The full text of the opinion is available online at nclawyersweekly.com.

Follow Heath Hamacher on Twitter @NCLWHamacher

6 / NEWS C o nt inu e d f r o m 2 ►

The dispute “raises issues of profound importance to the hundreds of thousands of dedicated public employees who devoted their lives to serving their fellow North Carolinians, often for less immediate remuneration than would have been available to them in the private sector,” Earls wrote.

Three other justices sided with Earls in overturning parts of a 2019 ruling by a state Court of Appeals panel that found no contractual obligation existed to offer that level of premium-free benefits. The judges had contrasted them with public pension benefits, which courts have ruled are contractual. Although participation in the pension system is mandatory, the health insurance program is voluntary.

But rulings in other cases show that the treatment of a employee benefit as a contractual right doesn’t depend on how closely it resembles a pension, Earls wrote. The General Assembly first authorized premium-free benefits in 1981. Evidence from the retirees, including plan booklets for workers, led them to believe they could rely on health insurance coverage in retirement for life, according to the majority opinion.

Associate Justice Tamara Barringer wrote an opinion concurring in part and dissenting in part saying that a trial judge also should have been directed to decide whether any contractual obligation to the retirees is present.

“There is still work to be done in the trial court to conclude the case, but this is a major victory for the constitutional and contractual rights of state retirees,” Michael Carpenter and Sam McGee, attorneys for the plaintiffs, said in a statement. Attorney General Josh Stein’s office, whose lawyers represent the state and state agencies in the case, had no immediate response to

N O R T H C A R O L I N A L A W Y E R S W E E K LY I M arch 28, 2022

the ruling, a spokesperson said.

Retired employees led by retired Chief Justice Beverly Lake Jr. sued the State Health Plan and retirement plans in 2012. Lake died about six months after the Court of Appeals ruling.

Chief Justice Paul Newby didn’t participate in the ruling or in oral arguments in October. No reason was given for why he was recused, but he was one of five justices listed in a January 2021 order as having living or deceased family members who were once state workers or teachers, leading to conflict of interest questions that were resolved months later.

N.C. officer shooting plea stands despite nameless indictment RALEIGH (AP) — A 2014 plea agreement by a man arrested 16 years after the fatal shooting of a police officer should stand, the North Carolina Supreme Court ruled on March 11 while reversing a lower court decision that declared it should be canceled because an indictment was defective.

The justices overturned the 2020 ruling of the Court of Appeals involving Marc Peterson Oldroyd, who was sentenced to a maximum of almost 13 years in prison.

Oldroyd was one of three men arrested in 2012 for the 1996 slaying of Jonesville police Sgt. Gregory Keith Martin. Oldroyd pleaded guilty to second-degree murder, attempted armed robbery and conspiracy to commit armed robbery.

According to documents, Oldroyd and the two other men had planned to rob the Huddle House in Jonesville.

The other two men used a stolen truck, but the backdoor was locked and the robbery abandoned. Oldroyd was in a

separate getaway car in the parking lot. Martin later stopped the truck on Interstate 77, and ultimately one of the other men shot the officer, according to documents. Oldroyd and the two men met later at an apartment, authorities said.

On appeal, Oldroyd’s lawyer argued the attempted armed robbery count against his client was incurably flawed because the alleged victims were only listed as “employees of the Huddle House” at a certain Yadkin County address, and not specifically named workers. A majority of a Court of Appeals panel agreed, which meant the entire plea agreement had to be vacated.

But in a unanimous opinion, Associate Justice Mike Morgan said that the indictment fulfilled laws of criminal procedure.

“An indictment is sufficient if it asserts facts plainly, concisely, and in a non-evidentiary manner which supports each of the elements of the charged crime with the exactitude necessary to allow the defendant to prepare a defense and to protect the defendant from double jeopardy,” Morgan wrote.

Scott Vincent Sica, the man who fired the weapon at Martin, was convicted of first-degree murder and other charges and sentenced to life in prison without parole. He died in 2016. The other conspirator, identified in correctional records as Brian E. Whittaker, accepted a similar plea as Oldroyd and was sentenced to a maximum of roughly 17½ years in prison. Oldroyd’s projected release date is early next year.

COA: Officer not grossly negligent in pedestrian death RALEIGH (AP) — A lawsuit filed against a North Carolina police officer

who fatally struck a pedestrian while responding to a call should not be allowed to proceed, a divided Court of Appeals has ruled, saying there is no evidence the officer acted in a grossly negligent manner.

The majority’s March 15 opinion reversed a trial court decision that had given the go-ahead to a lawsuit filed

by Gregory Graham’s estate against Officer Ashton Lambert and the city of Fayetteville.

Lambert was responding to a report of domestic violence involving a weapon when he hit Graham with his cruiser as Graham was walking across a sevenlane road late at night in July 2018.

Lambert was traveling 53 mph in a 45-mph zone without his emergency lights and siren on when his vehicle struck Graham, the court notes in its opinion.

Based on body camera footage, the officer had looked at and touched his laptop computer in the cruiser while driving, and his vehicle deviated slightly from the lane it was traveling in just before the collision. Graham was crossing a portion of the road that had no pedestrian crosswalk but was well lit.

“We conclude that Officer Lambert’s actions were acts of discretion on his part which may have been negligent but were not grossly negligent,” Judge Fred Gore wrote in the majority opinion. Judge John Tyson agreed with Gore.

Court of Appeals Judge Darren Jackson, writing a separate opinion, said he would have allowed the lawsuit to continue. He wrote that there is a “genuine question” of whether Lambert’s actions were gross negligence—in particular his use of a laptop while driving. It was Lambert’s first night working on patrol by himself, Jackson’s opinion says.

The split decision means the state Supreme Court is obligated to hear the case if there’s an appeal.

PERMIT / Attorneys’ fees available for successful appeal C o nt inu e d f r o m 1 ►

the property owners’ claims were frivolous wasn’t supported by the record.

The property owners later requested an award of attorneys’ fees and costs against the commission. The trial court granted the request, awarding $89,444.36, and the Commission appealed.

Judge Richard Dietz, writing for the appeals’ court’s majority in a March 1 opinion, agreed that the trial court had the authority to award attorneys’ fees, but remanded for additional findings.

“Petitioners fall squarely into the definition of a prevailing party under the merits test,” Dietz wrote. “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.”

Property owners are prevailing parties The commission argued that the

statute authorizing attorneys’ fees, N.C. Gen. Stat. § 6-19.1, doesn’t apply to actions taken in its statutory gatekeeping role. Neither gatekeeper decision nor an appeal of one is a civil action, it contended.

“But it is now well-settled that a petition for judicial review is ‘a civil action,’” Dietz wrote. “Petitioners sought permission to begin an administrative proceeding, but the Commission declined to grant that permission. The applicable statute expressly provides that the Commission’s ‘determination that a person may not commence a contested case is a final agency decision and is subject to judicial review.’

That judicial review proceeding, under settled law, is a civil action.”

Had the legislature wished to insulate the commission’s gatekeeper decisions from the statute, it certainly could have, Dietz said, as it excluded certain other agency decisions subject to judicial review from the scope of Section 6-19.1.

The commission’s alternative contention that Section 6-19.1 didn’t apply because the property owners weren’t “prevailing parties” under the statute similarly failed.

Applying the merits test as the appropriate standard, it was clear that the property owners succeeded on a significant issue in the litigation which achieved some of the benefit the parties sought in bringing the suit, Dietz said.

“The challenged state action was the Commission’s final agency decision that petitioners’ request

to begin an administrative review process was frivolous,” Dietz wrote.

“This, in turn, prevented petitioners from pursuing any administrative claims at all. Petitioners challenged that state action in court and prevailed, ending the court’s role on that question. Thus, they are prevailing parties under the merits test, regardless of whether they ultimately prevailed in the administrative challenge to the permitting decision.”

Judge John Tyson wrote a lengthy dissent whose reasoning the majority rejected in unusually adamant terms. Tyson argued that the trial court lacked subject matter jurisdiction over the fee petition because the property owners didn’t submit their request for attorneys’ fees to the commission first, but Dietz said this argument “ignores both the language of the statute and settled case law.” Section 6-19.1 requires a party to petition for attorneys’ fees within 30 days of final disposition, which the property owners correctly did.

Nor was Dietz persuaded that the trial court sat as an appellate court and therefore couldn’t find the requisite facts to award attorneys’ fees.

“This is wrong,” Dietz wrote. “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 Section 6-19.1 and to make the corresponding fact findings necessary to support that award.”

Remand for “frivolous” consideration

But even though the trial court had authority to award attorneys’ fees under Section 6-19.1, it abused its discretion when it determined that the commission’s position wasn’t substantially justified, which the commission argued as a fallback position.

While the trial court rejected the commission’s reasons for denying the permit challenge as wrong, those reasons “on their face are ones that a reasonable person could find satisfactory or justifiable,” Dietz wrote.

Complicating the analysis was the fact that “frivolous,” is a term of art with a settled meaning in the context of administrative claims, and the trial court’s failure to make a specific finding concerning the Commission’s knowledge of the appropriate test for assessing frivolous claims. Reluctant to impute such a finding to the trial court, Dietz remanded for further proceedings.

Judge Jefferson Griffin concurred in the majority’s opinion.

A spokesperson for the Attorney General’s Office declined to comment on the decision, citing the pending litigation.

I. Clark Wright Jr. of Davis Hartman Wright in New Bern represented the property owners. He did not respond to a request for comment.

The 37-page decision is Batson v.

Coastal Resources Commission (Lawyers Weekly No. 011-044-22). The full text of the opinion is available online at nclawyersweekly.com.

TOP V&S 2021 / 7

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Ma rch 28, 2022

TOP VERDICTS & SETTLEMENTS OF 2021

1.

Exonerated men awarded $75M for wrongful convictions

A federal jury has awarded $75 million to two men who were wrongfully convicted and spent nearly 31 years on death row.

Brothers Henry McCollum and Leon Brown were convicted in 1984 and sentenced to death for the murder and rape of an 11-year-old girl.

But in 2014 DNA evidence finally set them free, and in 2015, then-governor Pat McCrory issued the men a pardon of innocence. The man who is presumed to have been responsible for the murder died in prison while serving a life sentence for a different murder.

The May 14 verdict was against two State Bureau of Investigations agents, Leroy Allen and Kenneth Snead. The eight-person jury awarded each brother $31 million in compensatory damages—$1 million for every year spent in prison—and a total of $13 million in punitive damages.

Also on May 14, the Robeson County Sheriff’s Office agreed to a $9 million settlement for its role in the case. The town of Red Springs has already settled its case for $1 million in 2017.

“The first jury to hear all of the evidence—including the wrongly suppressed evidence—found Henry and Leon to be innocent, found them to have been demonstrably and excruciatingly wronged, and has done what the law can do to make it right at this late date,” said Elliot Abrams of Cheshire Parker & Schneider in Raleigh, who was part of the brothers’ legal team.

In September 1983, the girl’s half-naked body was found in a soybean field near her Red Springs home. She had been raped and suffocated. Police said that a local teenager told them she heard that McCollum, then 19, was involved.

McCollum, who grew up in New Jersey, was in town visiting his mother. He initially denied the accusations but confessed after questioning by investigators and detectives. Brown also confessed, but the brothers’ legal team argued that the confessions were coerced by investigators who fed the teens details of the case and penned the confessions. They contended that McCollum and Brown were intellectually challenged and didn’t fully understand the confessions.

The state also withheld exculpatory evidence, the brothers’ attorneys asserted.

“Among other things, evidence that law enforcement considered the real killer [to be] a suspect, that law enforcement used coercive tactics to interrogate Mr. McCollum and Mr. Brown, and the identity of the person who initially implicated Mr. McCollum, as well as the fact that less than a week later she told police that she lied to them and in fact had no information that Mr. McCollum was involved,” Abrams said.

According to court records, a polygraph cast doubt on a prosecution witness’ testimony, and police failed to investigate a fingerprint—belonging to neither McCollum nor Brown—lifted from a beer can at the scene.

But even more damning evidence pointed directly to another man as a suspect. Roscoe Artis, who lived near the field where the victim was found, was at the time suspected of raping and killing a woman in Gaston County and had numerous arrests and convictions for assaulting women and attempted rape. And just weeks after the girl was killed, with McCollum and Brown in custody, the body of an 18-year-old woman was found in a nearby field. She had also been raped, killed in a manner similar to the 11-year-old girl and the Gaston County woman, and left partially clothed.

In August 1984, Artis was convicted of murdering the 18-year-old. Still, the trial of McCollum and Brown moved forward. Less than two months later, they were found guilty of raping and murdering the 11-year-old, despite no physical evidence linking them to the crime.

In 2010, the North Carolina Innocence Inquiry Commission got involved in the case at Brown’s request. Its investigation focused on a crucial piece of evidence, a DNA-bearing cigarette butt found next to the girl’s body. The DNA was analyzed in 2005 and excluded McCollum and Brown, but could

not match it to a specific person. Later testing by the commission confirmed the DNA to be that of Artis.

Artis was not prosecuted in the case because he was already on death row for killing the 18-yearold. His death sentence was commuted to life in prison. He died behind bars in December.

In a September 2, 2014, motion for appropriate relief hearing, Robeson County Superior Court Judge Douglas Sasser granted a motion by the men’s attorneys and the local prosecutor to vacate the convictions. McCollum and Brown were released from prison the next day, records show.

Allen and Snead were represented by Scott MacLatchie and Adam Peoples of Hall Booth Smith in Charlotte. MacLatchie did not respond to a request for comment.

VERDICT REPORT — WRONGFUL CONVICTION

Amount: $75 million Injuries alleged: Severe physical and psychological harm from incarceration Case name: Tarleton et al. v. Sealey et al.

Court: U.S. District Court for the Eastern District of North Carolina Case No. 5:15-cv-451 Date of verdict: May 14, 2021 Attorneys for plaintiff: Elliot Abrams of Cheshire Parker & Schneider in Raleigh and E. Desmond Hogan, Catherine A. Stetson, W. David Maxwell, and Elizabeth C. Lockwood of Hogan Lovells in Washington, D.C. Attorneys for defendant: Scott MacLatchie and Adam Peoples of Hall Booth Smith in Charlotte

2.

Feds to pay $32M to Duplin Co. farmers for hurricane damage

Farmers in Duplin County and adjacent areas should see an estimated $32 million in federal compensation after the resolution of a court case over a hurricane wind endorsement to an insurance policy, the farmers’ attorneys report.

J. Scott Flowers and Damon Gray II of Hutchens Law Firm in Fayetteville report that Duplin County had initially been excluded from coverage for damage from Hurricane Isaias, which made landfall near Myrtle Beach, South Carolina, in August 2020.

Although Isaias hit Duplin County, there was a dispute over the formula to be used in deciding whether farmers were due compensation for crop damage.

Flowers said that the National Oceanic and Atmospheric Administration publishes a data point for hurricanes every three hours, and the first point at which the weakening weather system was classified as a tropical storm was inside the county. His clients contended that the language of the endorsement indicated that this required the government to cover Duplin as well as adjacent counties.

“The farmers in Duplin County were confused about why they were excluded because all the news reports said that Hurricane Isaias had gone right through Duplin County,” Flowers said. “We started looking into this, and we found that the RMA [Risk Management Agency] had published a formula to determine which counties were triggered.”

Flowers said the government employed a process of “interpolation” to determine where the hurricane strength winds had weakened, but he argued that such a methodology wasn’t what had initially been published when the farmers purchased the insurance. He said the language has since been changed to reflect the new policy.

Flowers represented only two individuals in the matter, which wasn’t filed as a class action. But many more farmers are expected to reap compensation from coverage both in Duplin and in adjacent counties, which would also be covered by Duplin’s inclusion. The exact number of beneficiaries was unclear, but Flowers said it could include hundreds of people.

Flowers said that federal crop insurance for hurricane damage doesn’t involve an adjuster or an exact assessment of damage.

“You automatically get paid whatever the percentage amount that you purchased was,” he said.

The U.S. Attorney’s Office filed an answer which agreed in part and denied in part the allegations in the suit. No official settlement was made, but Flowers said that the government ultimately agreed to cover the farmers in the disputed area, and the parties stipulated to a dismissal of the lawsuit on Aug. 3.

Flowers said that he is from Duplin County and his brother-in-law is still a farmer there.

“That’s how I found out about all this and got involved,” he said.

Assistant U.S. Attorney Neal Fowler of the U.S. Attorney’s Office for the Eastern District of North Carolina represented the government. He could not be reached for comment on the settlement.

SETTLEMENT REPORT – FEDERAL ADMINISTRATIVE PROCEDURE ACT

Amount: Approximately $32 million Injuries alleged: Failure to pay federal crop insurance claims Case name: Thomas Bradley Frederick; Thomas Leroy Frederick v. United States Department of Agriculture; Risk Management Agency; Federal Crop Insurance Corporation Court: U.S. District Court for the Eastern District of North Carolina Case No.: 7:20-CV-239-M Date of settlement: Aug. 3, 2021 Attorneys for plaintiffs: J. Scott Flowers and Damon Gray II of Hutchens Law Firm in Fayetteville Attorneys for defendant: Assistant U.S. Attorney Neal Fowler of the U.S. Attorney’s Office for the Eastern District of North Carolina in Raleigh

3.

Tech company wins $31.95M for patent violations

An engineering company will receive $31.95 million after a jury found that another company took its plans for a new product and used them to secure patents by wrongly portraying the technology as its own invention, the company’s attorneys report.

John Morrow and Minnie Kim of Womble Bond Dickinson in Winston-Salem report that their client, Nexus Technologies, which is based in Henderson County, began talks with Christopher Petrella, the owner of a South Carolina company called Unlimited Power, to discuss whether Nexus could design and manufacture a prototype for a portable renewable energy system. Petrella told Nexus’ president, Daniel Conti, and another Nexus employee, Benjamin Bomer, that he could sell the system to the U.S. military and other government agencies, according to Nexus’ complaint.

Conti and Bomer designed the system and submitted the plans to Petrella, but the parties hadn’t entered into any contractual relationship for Nexus to actually design and manufacture a portable energy renewal system for Petrella, the complaint states.

“Conti merely agreed to prepare an engineering and design proposal for Petrella’s consideration, after which the parties could discuss whether terms for a development and supply agreement could be reached, including costs for Nexus to make and sell the product to Petrella or an entity designated by Petrella,” per the complaint.

Over the next several months, Petrella periodically told Nexus that he was attempting to secure funding that would enable him to retain and pay Nexus to design and manufacture initial prototypes of the portable renewable energy system. These communications continued throughout 2013 and into early 2014.

But the lawsuit claimed that without notice to Nexus, Petrella filed patent applications based on Nexus’ designs with the U.S. Patent and Trademark Office, which approved them.

Petrella transferred the patents to Ravensafe, Inc., a company owned by Unlimited Power’s ma-

8 / TOP V&S 2021 jority shareholder. In the meantime, Nexus placed a similar energy system up for sale on its website.

Ravensafe sued, alleging patent infringement.

After a three-day trial, the jury deliberated for two hours before returning a verdict for Nexus on all issues on March 15, Morrow said. The jury found that Petrella had surreptitiously obtained the patents using Nexus’ ideas and used the patents as leverage to persuade investors and others not to do business with Nexus.

The jury awarded Nexus $10.65 million in damages. Under North Carolina law, the award was trebled to $31.95 million due to violations of the state’s Unfair and Deceptive Trade Practices Act. Morrow said that the court employed safety procedures that limited exposure between the jurors and attorneys during the trial, “while allowing for in-person evidentiary presentations that are critical to evaluating factual disputes.”

“Our jury also appeared to be very attentive and conscientious,” Morrow said. “They went above and beyond what could reasonably be expected, particularly during a pandemic.”

Robert Ward of Atlanta represented the defendants. He could not be reached for comment.

VERDICT REPORT – INTELLECTUAL PROPERTY

Amount: $31.95 million Injuries alleged: Patent violations Case name: Nexus Technologies Inc., Daniel Conti and Benjamin Bomer v. Unlimited Power and Christopher Petrella Court: U.S. District Court for the Western District of North Carolina Case No.: 1:19-cv-00009 Date of verdict: March 15 Attorneys for plaintiff: John Morrow and Minnie Kim of Womble Bond Dickinson in Winston-Salem Attorney for defendants: Robert Ward of Atlanta

4.

$12.5M settlement for two minors injured in car crash

The guardians of two children who suffered severe injuries as a result of an automobile accident have reached a partial settlement for $12.5 million, their attorneys report.

Fred DeVore and Bill Acton of DeVore, Acton & Stafford in Charlotte report that one of the children suffered an upper cervical fracture that required a fusion to the base of her skull, while the other suffered quadriplegia from his injuries.

Many of the details of the case, including the location and nature of the accident, the names of the plaintiffs, and the names of the defendants and their attorneys were withheld pursuant to a confidentiality agreement.

DeVore said that the case reached a partial settlement last spring through mediation. In preparation of the mediation, the plaintiffs engaged two life care planners, an economist, and a life expectancy expert, among other experts.

An engineered animated re-creation of the accident was helpful in analyzing liability, and use of body cam footage from the first responders to the accident scene aided in locating witnesses and identifying the resting position of the vehicles, DeVore said. A day-in-the-life documentary produced in preparation for mediation included interviews with the children’s mother and therapists, and counsel also conducted several focus groups, including several virtual focus groups, to assist them in preparing the case.

As a result of the settlement, the attorneys were able to create trusts to provide immediate and future care for the children.

“This is a case where both sides worked diligently and cooperatively to reach this partial resolution of this matter, with the needs of the children being the focus of the negotiations,” DeVore said.

DeVore said that a case against one remaining defendant is still pending.

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $12.5 million Injuries alleged: Upper cervical fracture requiring a fusion to the base of the skull of one minor child, quadriplegia of another minor child

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 28, 2022

Case name: Confidential Court: Confidential Date of settlement: Spring of 2021 Attorneys for plaintiffs: Fred DeVore and Bill Acton of DeVore, Acton & Stafford in Charlotte Attorneys for defendants: Withheld

5.

Jury awards more than $10M for head-on collision

The judgment may be more symbolic than substantive, but a Craven County jury has awarded $10.755 million to a 71-year-old woman who was injured in a head-on collision with an impaired driver, her attorney reports.

Carlos Mahoney of Glenn, Mills, Fisher & Mahoney in Durham reports that his client, Clara Green, was driving home on NC 43 when her vehicle was struck by an SUV that crashed into the guard rail in front of her and rolled into her path.

The driver was 35-year-old Charles Plunkett Jr., a man with a long history of impaired driving arrests.

Plunkett, who is likely judgment-proof, is serving a minimum of 117 months in prison for criminal convictions related to the crash.

Mahoney said that Plunkett was driving approximately 90 mph when he swerved in his own lane, attempting to avoid rear-ending the vehicle in front of him. Plunkett sideswiped that vehicle, sending his car across the centerline and onto the bridge rail, which caused it to overturn several times before striking Green’s vehicle.

“Instead of helping Ms. Green, Plunkett got out of his vehicle and fled the scene as his vehicle burst into flames and exploded,” Mahoney said.

Green suffered multiple traumatic injuries, Mahoney said, and spent 24 days in the hospital, breathing with a ventilator and undergoing surgeries on her ribs, chest, knee, and ankle. She developed a deep wound infection which required two subsequent hospitalizations, and her medical expenses exceeded $200,000.

Mahoney said that Plunkett lived close to the crash site and was walking toward his home when he was picked up by a deputy sheriff. Plunkett refused a chemical analysis, Mahoney said, but lab tests showed his blood alcohol level to be between 0.13 and 0.18. Benzodiazepines and marijuana were also found in his system.

After Plunkett refused to cooperate with the defense, his insurer, North Carolina Farm Bureau Mutual Insurance Company, intervened. Ruthie Sheets and Nina Banfield of Harris, Creech, Ward & Blackerby in New Bern represented Farm Bureau.

Sheets said that no substantive defense was presented at trial and that her client willingly tendered the $30,000 policy limit.

“We gave all our money and did everything that we were able to do prior to the filing of the action,” Sheets said. “But plaintiff’s counsel went ahead and pursued the action.”

Before the wreck, Green worked part-time as a caregiver for the elderly. She was out of work for 10 months after the wreck and is able to work only a few hours a week because of her injuries.

Mahoney asked the jury for $2,250,000 in actual damages and $5 million in punitive damages. After a two-day trial, the jury deliberated less than an hour before awarding $4,255,000 and $6,500,000, respectively.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $10.755 million Injuries alleged: Broken leg, broken pelvis, liver laceration, fractured ribs Case name: Green vs. Plunkett and North Carolina Farm Bureau Mutual Insurance Company Court: Craven County Superior Court Case No.: 20-CVS-370 Judge: Joshua Willey Date of verdict: May 26, 2021 Highest offer: $30,000 Insurance carrier: North Carolina Farm Bureau Mutual Insurance Company Special damages: $206,893.88 for medical bills and $49,000 in lost wages

Most helpful experts: Dr. Claudia Goettler and Dr. Russell Norris, both of Greenville; Dr. Justin Ryan Kauk of Charlotte; and toxicologist Andrew Ewens of Cary Insurance carrier: North Carolina Farm Bureau Mutual Insurance Company Attorney for plaintiff: Carlos Mahoney of Glenn, Mills, Fisher & Mahoney in Durham Attorneys for defendant: Ruthie Sheets and Nina Banfield of Harris, Creech, Ward & Blackerby in New Bern

6.

Executive awarded $10M in discrimination suit

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

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

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

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

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

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

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

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

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

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

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

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

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

Largess said he was surprised at the notoriety the verdict has gained at the national level, finding coverage from CNN to the New York Times. He said the size of the award and the current political climate over racial issues may have contributed to its prominence. But he doesn’t feel it should be adopted as part of any cultural cause.

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

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

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10 / TOP V&S 2021 “She felt that Novant had not explained its decision, had not justified its decision,” Largess said.

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

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

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 28, 2022

SETTLEMENT REPORT – CLASS ACTION

Amount: $10 million Injuries alleged: Job termination Case name: David Duvall v. Novant Health, Inc. Court: U.S. District Court for the Western District of North Carolina Case No.: 3:19-cv-624 Judge: David Cayer Date of verdict: Oct. 26, 2021 Attorney for plaintiff: Luke Largess of Tin, Fulton, Walker & Owen in Charlotte Attorneys for defendant: Benjamin Holland, Elizabeth Gift, and Abby Littrell of Ogletree Deakins in Charlotte

Amount: $7 million Injuries alleged: Violations of the Fair Debt Collection Practices Act, the North Carolina Collection Agency Act, and regulations in other states Case name: Tracy Adams, Carrie Albers, Nicole Barilla, Walter Best, Jr., Lashonda Butler, David Dugan, Michael Ellison, Tristan Evans, Anita Fisher, Judith Fordham, Dani Gannon, Robert and Sandra Heinitz, Torrol Holt, Kenneth Koepplinger, Lois Kerr, Pamela Lavenhouse, Bridget Leak, Charles McDonald, Darrell Peebles, Susan Savage, Bernice Scott, Lukhwinder and Rattandeep Sidhu, Rhoda Smith, Michael Spehr, William Vaughan, Kay Wenger, and Patricia Williams v.

Seterus, Inc. and Nationstar Mortgage, LLC Venue: U.S. District Court for the Middle District of North Carolina Case No.: 1:17-cv-995 Judge: Catherine C. Eagles Date of settlement: April 16, 2021 (final approval) Attorneys for plaintiffs: Ed Maginnis, Karl Gwaltney, and Asa Edwards of Maginnis Howard in Raleigh and Scott C. Harris of Milberg Coleman Bryson Phillips Grossman Attorneys for defendants: Brian Kahn and Locke Beatty of McGuire Woods

7.

8.

VERDICT REPORT – EMPLOYMENT DISCRIMINATION

Class action against mortgage servicer settled for $7M

A class action against a mortgage servicer accused of using illegal tactics to collect payments has been settled for $7 million, the plaintiffs’ attorneys report.

Ed Maginnis, Karl Gwaltney, and Asa Edwards of Maginnis Howard in Raleigh and Scott C. Harris of Milberg Coleman Bryson Phillips Grossman report that the case stemmed from letters issued by Seterus, Inc., which demanded full payment of past due amounts owed by mortgagees before a 50-day deadline, with the threat that the company would “accelerate the maturity” date of the loan unless the required amount was submitted.

The suit filed against Seterus and its corporate successor, Nationstar, alleged that Seterus employed false representations with “threatened action it did not intend to take; and threatened to take action that it could not legally take.” It accused the company of violations of both the federal Fair Debt Collection Practices Act and the North Carolina Collection Agency Act. “The Fannie Mae servicing guidelines that they were required to abide by plus their own internal policies and procedures prevented them from foreclosing anywhere close to the time period that was threatened in that letter,” Gwaltney said. “It was just designed solely to scare people, solely to get people to make larger payments than they would otherwise have to [and] what was required under the law.”

Although the issue began with filings on behalf of North Carolina consumers, Gwaltney said that the case expanded when it became clear the letters were being used in different states.

“We come to find out that it was not just a North Carolina policy but was a policy that was implemented throughout the country,” Gwaltney said.

“At that point, we began filing cases in other jurisdictions.”

Eventually, homeowners in 13 states joined the case, with additional claims being asserted under Michigan and California laws. The matters just settled were ultimately consolidated in federal court for the Middle District of North Carolina.

Gwaltney said the matter was settled despite an initial failure at mediation. North Carolina plaintiffs will receive $180 checks for their role in the case. Plaintiffs in other states will get $63, except for California residents, who are due $53. The settlement received final approval from U.S. District Judge Catherine C. Eagles on April 16.

Brian Kahn and Locke Beatty of McGuire Woods represented the defendants. Neither returned requests for comment on the settlement, but Gwaltney said that the defendants had claimed that the letters didn’t violate the FDCPA and that any statements made were immaterial to the actions of people who wish to make their mortgage payments anyway.

State to pay $6.6M after shops’ parking squeezed

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 Autry Jr., Stephanie 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 tenants terminated 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 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.

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 Superior Court Case No.: 17-CVS-02497 Date of settlement: 2021 Attorneys for landowner: George Autry Jr., Stephanie Autry, and Jeremy Hopkins of Cranfill Sumner in Raleigh

9.

Estate settles car crash death for $6.5M

The estate of a person who was killed when their vehicle was rear-ended has settled its wrongful death suit for $6.5 million, the estate’s attorney reports.

Earl Taylor of Taylor Law Office in Wilson, who represented the estates, said that the victim died instantly from blunt force trauma injuries. Many details of the case, including the names of the parties and their counsel and the venue, were withheld pursuant to a confidentiality agreement.

Wilson said the case settled before trial after unsuccessful pre-suit and court-ordered mediations, and the defendant’s videotaped deposition was an important piece of evidence that Wilson said he had planned to use at trial.

Wilson said that the defendant alleged contributory negligence. Wilson said he didn’t think that the defense was supported by the evidence, and even if it had been it would have been trumped by the last clear chance doctrine.

“The accident reconstruction expert testified that the defendant had more than enough time and distance to easily and safely avoid the collision,” Wilson said.

The medical examiner testified that the death was immediate, so there was no evidence of pain and suffering, but Wilson said that N.C.G.S. 28A18-2—which covers death by the wrongful act of another and compensation for the relationship between the decedent and his beneficiaries—helped establish the value of the case.

The statutory language makes clear that an estate can pursue damages commensurate with the decedent’s value to their family, not to society at large or to a reasonable person.

“But rather what this person’s value actually was to his family as shown by the closeness, daily interaction, love, affection, and the importance each family member placed on that relationship before the collision and the tremendous loss each felt afterwards,” Wilson said. “The entire family had lived lives of service to the community.”

Wilson added that his twin sons, first-year law students at the University of North Carolina School of Law, were instrumental in preparing the case, attending mediations and assisting in making presentations to focus groups.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $6.5 million Injuries alleged: Death Case name: Withheld Court: Withheld Date of settlement: Fall 2021 Attorney for plaintiff: Earl Taylor of Taylor Law Office in Wilson Attorneys for defendant: Withheld

10.

Sheriff’s office to pay $6M in wrongful death, excess force suit

Six plaintiffs alleging numerous civil rights violations have settled their lawsuit against the Harnett County Sheriff’s Office and several deputies for $6 million, the limits of the agency’s insurance policy, their attorneys report.

The plaintiffs were represented by Robert Zaytoun, Matthew Ballew, and John Taylor of Zaytoun Ballew & Taylor in Raleigh; Jesse Jones of Lillington; and Charles McCotter Jr. of New Bern. In 2015, each plaintiff was victimized by deputies in five separate incidents, Zaytoun said, culminating in the beating and fatal shooting of 33-year-old John Livingston outside his home.

The lawsuit, filed in the U.S. District Court for the Eastern District of North Carolina, paints the department as one steeped in misconduct. Zaytoun said that a group of rogue deputies known as “The D Squad” harassed and abused vulnerable populations, targeting disadvantaged neighborhoods and operating within a culture of excessive force tolerated and encouraged by sheriff’s office’s leadership.

“They knew it was going on and turned a blind eye to it,” Zaytoun said. “In fact, I think they might’ve been proud of it. This is not an anti-law enforcement case, it’s an anti-rogue case.”

The complaint alleges that at about 3:40 a.m. on Nov. 15, 2015, deputies Nicholas Kehagias and John Werbelow entered Livingston’s home without consent, probable cause, or a warrant, and despite his objections. Zaytoun said that Kehagias was purportedly on his way to a domestic call at another address, but showed up at Livingston’s to confront a

TOP V&S 2021 / 11

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 28, 2022

man he believed was staying there.

Kehagias and Werbelow “brutalized” Livingston by punching him, pepper-spraying him, and shocking him several times with a stun gun before Kehagias shot him three times, killing him on his front porch, Zaytoun said.

Livingston’s case attracted widespread media attention, but the other plaintiffs in the case also brought allegations of serious police misconduct.

Christine Broom alleges that in January 2015 deputies helped an inebriated tenant break into her home after she refused to let him in and then assaulted her once they were inside.

On May 12, 2015, 66-year-old Michael Cardwell dialed 911 seeking help for a mental episode. Instead, the suit says, he suffered a broken hip and leg after he was “bull-rushed,” pepper-sprayed, and slammed by Kehagias.

In July 2015, Kehagias assaulted and handcuffed Tyrone Bethune and his cousin, Ryan Holloway, at Bethune’s home while purportedly attempting to serve a warrant on Bethune’s neighbor, the complaint states. Zaytoun said that Kehagias first told Bethune that he was there investigating a potential suicide attempt before saying he was looking for a man named Ryan Cox. The plaintiffs say that Kehagias entered the home, falsely claiming that Holloway had given him permission to search it, and became physical when Bethune asked him to leave because he didn’t have a warrant.

In September, 2015, Kehagias was investigating a noise complaint at the site of a birthday party when Wesley Wright reportedly shouted from the porch before walking inside the home. The complaint accuses Kehagias of following Wright inside and pointing his firearm at him before dragging him outside, slamming him, and pepper-spraying him.

Four of the five other plaintiffs specifically named Kehagias, whom Zaytoun said has a history of complaints against him, as a defendant. Three of the plaintiffs were charged with resisting arrest, but each charge was later dismissed. Zaytoun said that Kehagias never showed up for court, and that the charges had merely been pretenses.

Zaytoun said that after three mediations and a failed appeal to the 4th U.S. Circuit Court of Appeals, the defendants agreed to the $6 million settlement on June 17, exhausting the available liability insurance coverage.

Zaytoun said that the cases could’ve been worth much more, but that taxpayers would end up bearing the burden. In addition to financial compensation for the victims, Zaytoun hopes that the case will help do away with rogue officers who “hide behind qualified immunity.”

“Our hope is that more of these cases are brought and won and that at some point there will be … some real systemic change,” Zaytoun said. “There needs to be better screening for hiring, better training—the ego can’t be bigger than the badge.”

SETTLEMENT REPORT — CIVIL RIGHTS VIOLATIONS

Amount: $6 million Injuries alleged: Wrongful death, excessive force, deprivation of liberty, emotional injuries, unlawful arrest, malicious prosecution Case name: Estate of John Livingston et. al. vs. Nicholas Kehagias et. al.

Court: U.S. District Court for the Eastern District of North Carolina Case No.: No. 5:16-CV-00906-BO Judge: Terrence Boyle Date of settlement: June 17, 2021 Insurance carrier: Intact Insurance (formerly One Beacon) Attorneys for plaintiffs: Robert Zaytoun, Matthew Ballew, and John Taylor of Raleigh; Jesse Jones of Lillington; and Charles McCotter Jr. of New Bern Attorneys for defendants: Dan Hartzog Jr. and Katie Barber Jones of Raleigh, and Harnett County attorney Dwight Snow of Lillington

11.

Deadly gas leak leads to $5.5M settlement

A case involving a deadly explosion prompted by a gas leak at a North Carolina home has been settled for $5.5 million, the plaintiffs’ attorneys report.

John Jensen of Jensen Law Group on Chapel Hill

and Lee Falls of Falls Law Firm in Charlotte report that the blast destroyed the home, killing both the husband and wife who were residing there.

Due to a confidentiality agreement, many of the details of the case, including the location of the blast and the identities of the parties and the counsel for the defendant, were withheld.

“The explosion was caused when a gas line and regulator mounted outside the garage broke, which resulted in a gas leak,” Jensen said. “The husband reported the leak and sought defendant’s assistance in turning off the gas supply to his home. Defendant successfully assisted him in turning off the gas.”

But 20 minutes after that phone call with the defendant, the house exploded. The couple’s bodies were found later amid the debris.

“The husband and wife had no children and were deemed to have died simultaneously under North Carolina’s Simultaneous Death Act,” Jensen said.

“As such, the proceeds of the settlement were distributed separately to each of the decedents’ intestate successor beneficiaries.”

The settlement was agreed to in January 2021.

In addition to the wrongful death recovery, the settlement also covered property loss related to the home and its contents.

SETTLEMENT REPORT – WRONGFUL DEATH

Amount: $5.5 million Injuries alleged: Wrongful deaths and total destruction of a house and its contents Case name: Confidential Venue: Confidential Date of settlement: January 2021 Attorneys for plaintiffs: John Jensen of Jensen Law Group on Chapel Hill and Lee Falls of Falls Law Firm in Charlotte Attorney for defendant: Confidential

12.

Spouse, estate reach $5.35M settlement after fatal wreck

The surviving spouse of a person who was killed in a motor vehicle collision and the decedent’s estate have settled their claims for $5.35 million, the plaintiffs’ attorney reports.

Frank Pope of the Pope Law Firm in Jacksonville reports that the decedent, whose name was withheld pursuant to a confidentiality agreement, was operating their vehicle, with their spouse as a passenger, when the couple was involved in the collision.

In addition to the driver’s death, the collision caused the spouse to sustain multiple serious orthopedic injuries requiring surgery. The economic damages, including loss of services of the decedent, totaled $500,286. The medical expenses of the spouse were $165,391.

The settlement was agreed to on Aug. 12. Under the terms of the agreement, the decedent’s estate will receive $4 million, and the surviving spouse will receive $1.35 million. Scott Hart mediated the settlement.

Due to a confidentiality agreement, other details about the settlement, including the identities of the defendants and their counsel, were unavailable.

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $5.35 million ($4 million for estate and $1.35 million for injured spouse) Injuries alleged: Death, multiple fractures suffered by surviving spouse Venue: Confidential Mediator: Scott Hart Date of settlement: Aug. 12, 2021 Attorney for plaintiff: Frank Pope of the Pope Law Firm in Jacksonville Attorneys for defendants: Confidential

13.

Family of student killed by sleeping driver settles case for $5M

The family of a college student who was killed

in a collision with an armored box truck whose driver had fallen asleep at the wheel has agreed to a $5 million settlement, the family’s attorneys report.

Harry Albritton Jr. of Irons & Irons in Greenville and Chris Mauriello of Mauriello Law in Cornelius report that the 21-year-old woman was killed instantly when the truck crossed the center line on a two-lane rural road and smashed into her head-on.

Due to a confidentiality agreement many details of the case, including the identities of the parties and the location of the accident, were withheld.

Because the woman died instantly, there were no medical expenses at issue, the attorneys said, and she was unmarried and had no children to survive her. The defense conceded the commercial driver’s liability but denied corporate wrongdoing.

“The plaintiffs believed they had a very good punitive damage claim,” Mauriello said. “The defendant always maintained that there wasn’t any. But of course, the trier of fact, the jury, never heard it, so I think that both sides went into mediation with that as a big unknown what a final jury would do with it.”

The biggest question centered on the family’s contentions that the company bore responsibility for the crash because it had overworked its driver.

Albritton said suit was filed immediately after a police officer indicated that the driver admitted he may have dozed off at the wheel. Internal video from the cab of the vehicle confirmed that fact.

“We got deeper into discovery and obtained logbooks and focused on the ongoing problems in the company that we saw, which was overworking these guys,” Albritton said.

The family alleged that the company had created an environment where its drivers were more susceptible to driving fatigued by requiring excessive hours of service and not mandating rest or meal breaks. Albritton said that the driver’s logbook showed that the company had worked him for the previous nine days and he had requested a day off but was denied.

No drugs or alcohol were involved in the crash, which took place on a clear day with no roadway obstructions, the attorneys said.

Ray Owens of Higgins & Owens in Charlotte mediated the settlement, which was agreed to on Aug. 13.

The identities of the defense counsel were also withheld, but the family’s attorneys said that the defense contended that the business didn’t fall under relevant state or federal regulations regarding hours of service or mandatory breaks.

“We took lots of depositions of executives in the business and felt pretty strongly about our case and were able to resolve it at mediation,” Albritton said.

Albritton said the complicating factor in the matter was the potential settlement amount, and the attorneys used focus groups to test on the issue. He said the results were “all over the place,” with a wide range of numbers among group participants.

“We presented the case from a defense-heavy perspective,” Albritton said. “They were varied in their responses. We don’t normally do a damages focus group, but we were curious as to where they would come when it came down to a 21-year-old without any real economic damages.”

Mauriello was optimistic about the results from the group.

“There was a disparity in terms of the amount, but they all did believe that there were punitive damages in the case,” he said.

Albritton said that it would have all hinged on proving wanton and willful misconduct.

“We valued the case very early at $5 million and we did not move,” he said. “I think if we had gone to a jury, we would have been in that range.”

SETTLEMENT REPORT – WRONGFUL DEATH

Amount: $5 million Injuries alleged: Death Case name: Withheld Court: Withheld Mediator: Ray Owens of Higgins & Owens in Charlotte Date of settlement: Aug. 13, 2021 Attorneys for plaintiffs: Harry Albritton Jr. of Irons

12 / TOP V&S 2021 & Irons in Greenville and Chris Mauriello of Mauriello Law Offices in Cornelius Attorneys for defendants: Withheld

14.

Illegal family separation

by DSS leads to $4.6M verdict

A federal jury has awarded $4.6 million to a father and daughter after finding that Cherokee County and several of its Department of Social Services’ employees created and executed a fraudulent document to remove the girl from her father’s custody.

Dozens of families have alleged that Cherokee County’s DSS illegally separated children from their parents. The May 13 verdict, in which the jury awarded $1.5 million to the father and $3.1 million to the daughter, is the first verdict to be handed down in connection with the scandal, which led to criminal charges being filed against two DSS employees.

David Wijewickrama and Ron Moore of the Law Office of David Wijewickrama in Waynesville, Melissa Jackson of Waynesville, and D. Brandon Christian of Fayetteville represented Brian Hogan and his minor daughter. They alleged that the former Cherokee County DSS director, Cindy Palmer, and the agency’s former attorney, Scott Lindsay, along with other social workers, coerced Hogan into signing a Custody Visitation Agreement (CVA)—conjured up by the agency—which transferred custody of Hogan’s then-10-year-old daughter to Hogan’s father.

In November 2016, Hogan left his daughter with a neighbor so he could be with his wife, who had suffered a life-threatening heart attack and was in intensive care in Asheville, hours away from their home in Murphy. Cherokee County DSS later became involved when the daughter’s school expressed concern about her care.

The complaint states that social workers told Hogan that he was to come home immediately, where he claims he signed the CVA under duress.

The CVA is formatted such that it appears to be official, but it is not supported by statute or legal authority, state district court judges have found.

“They were told that their children would be placed in foster care and they wouldn’t be able to see them again, that they could be sent to jail, or they could face criminal issues if they didn’t sign,” Wijewickrama said.

Chief U.S. District Court Judge Martin Reidinger wrote in a Feb. 21 order granting a motion for summary judgment that Hogan—who is intellectually disabled and unable to adequately read and write—was given just 24 hours’ notice that he needed to sign the CVA and just a moment’s notice to read it before signing. Hogan wasn’t represented by an attorney or given an opportunity to confer with one, Reidinger found.

On Dec. 17, 2017, a state district court judge returned custody to Hogan and declared the CVA invalid and unenforceable. In a separate but similar case, another state district court judge voided all CVAs, calling them actual and constructive fraud, citing “gross irregularities” in the process used to obtain them and in the illegality of the CVA themselves.

In March 2018, the North Carolina Department of Health and Human services temporarily assumed leadership of child welfare services at Cherokee County DSS. Its investigation revealed a systematic lack of adequate training, supervision, and capacity to deliver appropriate services, even beyond the CVAs. “There is a lot of work to be done to bring Cherokee County Department of Social Services into compliance with laws, policies, and appropriate child welfare services,” DHSS secretary Mandy Cohen wrote in a news release.

Court records show that this case is one of many, and that Cherokee County DSS has used dozens of CVAs to remove children from their homes.

“It’s a long story that has 31 cases to go,” Wijewickrama said.

According to court records, there is no evidence that CVAs have been used anywhere else in the state.

In May 2020, Palmer and Lindsay were indicted on numerous felonies and misdemeanors related to their duties with DSS, including the use of CVAs.

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 28, 2022

VERDICT REPORT – CIVIL RIGHTS

Amount: $4.6 million Injuries alleged: Pain and suffering Case name: Hogan v. Cherokee County, et. al.

Court: U.S. District Court for the Western District of North Carolina Case No.: 1:18-cv-00096 Judge: Martin Reidinger Date of verdict: May 13, 2021 Most helpful experts: Dr. Jesse Raley and Dr. Matt Gaskins of Columbia, South Carolina Insurance carrier: North Carolina Association of County Commissioners’ Liability and Property Pool Attorneys for plaintiffs: David Wijewickrama and Ron Moore of the Law Office of David Wijewickrama in Waynesville, Melissa Jackson of Waynesville, and D. Brandon Christian of Fayetteville Attorneys for defendants: Sean Perrin of Womble Bond Dickinson in Charlotte, Patrick Flanagan of Cranfill Sumner in Charlotte, and John Kubis of Teague Campbell in Asheville

15.

Broadside collision leads to $4.5M settlement

A woman who was injured by an allegedly distracted driver has agreed to a mediated settlement of $4.5 million, her attorney reports.

William Goldfarb of Monroe reports that his client was turning left when the defendant, who was traveling approximately 55 mph in a commercial van, ran a red light and broadsided his client’s vehicle. Goldfarb said that phone records show that the defendant was using his cell phone at the time of the crash.

Many of the case’s details, including the names of the parties and venue, have been withheld pursuant to a confidentiality agreement.

The 51-year-old plaintiff is self-employed, Goldfarb said, but a vocational assessment shows that any future job searches will be “fruitless.”

Several witnesses, family members, and experts were critical in painting a vivid picture of how the crash happened and how it has affected the woman, Goldfarb said.

Goldfarb said that his client suffered numerous injuries, including a head injury, broken ribs, fractured vertebrae, a ruptured diaphragm, lacerations, respiratory failure, and probable neurocognitive disorder. But despite her lasting injuries, Goldfarb said that she has recovered remarkably well.

“Prior to the collision, the plaintiff was very healthy and active,” Goldfarb said. “This more than likely saved her life.”

Goldfarb brought on an orthopedic physician to opine about permanent issues and future medical treatment, and a certified life care planner. The client presented evidence of $203,000 in medical expenses under Rule 414 of the rules of evidence.

“The client wanted this chapter of her life to be over as soon as practical, but with proper value assigned to her injuries and pain and suffering,” Goldfarb said.

The case, mediated by Bill Brazil of Brazil & Burke in Asheville, was settled before any lawsuit was filed.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $4.5 million Injuries alleged: Head injuries, probable neurocognitive disorder, broken ribs, fractured vertebrae, ruptured diaphragm, lacerations, respiratory failure, anxiety, sleep disorder, and chronic pain, among others Case name: Case settled before any lawsuit was filed Venue: Withheld Mediator: Bill Brazil of Brazil & Burke in Asheville Date of settlement: Aug. 3, 2021 Most helpful experts: Dr. Jason O’Dell of Florence, South Carolina (orthopedist), Anthony Enoch of Wilmington (rehabilitation consultant), Steve Farlow of Raleigh (accident reconstruction), Cynthia

Wilhelm of Chapel Hill (life planner), and Jeffrey Ewert of Charlotte (neuropsychologist) Attorney for plaintiff: William Goldfarb of Monroe Attorneys for defendant: Withheld

16

(tie). Wrongful death suit against distracted driver settles for $4M

The estate of a 47-year-old North Carolina woman who was killed by a distracted driver has settled its case for $4 million, its attorneys report.

The plaintiff was represented by Brian Mickelsen and Danny Dalton of Mickelsen Dalton in Mount Pleasant, South Carolina, and Walter Wood of the Law Offices of James Scott Farrin in Greenville, South Carolina. At the time of the litigation, Wood worked from his firm’s Durham office. Mickelsen and Dalton were admitted pro hac vice.

The attorneys report that their client died when her minivan was broadsided by a defendant who blew through a stop sign and into the intersection.

Many of the case’s details, including the names of the parties and defense counsel, were withheld pursuant to a confidentiality agreement, although the attorneys said that the case was litigated in North Carolina and settled in April. Michael McDaniel mediated the settlement.

The victim was on her way to the store and preparing to host her young grandchildren for the weekend when the defendant crashed into the driver’s side of her vehicle, Dalton said. Her seatbelt failed and she was ejected, landing on a nearby utility pole. She died soon after arriving at the hospital.

“Her injuries were gruesome, and the loss to the family catastrophic,” Dalton said.

Dalton said that the insurance company argued that the victim should have seen the defendant coming and anticipated the impact, a claim that was controverted by responding officers, photographs, and an inspection of the crash site.

The company also argued that the driver, who was on the job when the crash happened, wasn’t distracted, although Dalton said that numerous social media posts suggest otherwise.

The estate’s attorneys likewise dismissed the defendant’s contentions that the low traces of prescribed painkillers found in the victim’s system caused the collision.

“The insurance company insisted that this beloved grandmother who worked full-time as a daycare worker and substitute elementary school teacher was a drug addict that contributed to her own death,” Dalton said. “The most frustrating part of this case was watching the pain this family went through repeat each time the insurance company came with a new offensive argument.”

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $4 million Injuries alleged: Death Case name: Confidential Court: Confidential Mediator: Michael McDaniel Date of settlement: April 2021 Most helpful experts: Mark Valentine (jury consultant) Attorneys for plaintiff: Brian Mickelsen and Danny Dalton of Mickelsen Dalton in Mount Pleasant, South Carolina, and Walter Wood of the Law Offices of James Scott Farrin in Greenville, South Carolina (previously of Durham) Attorneys for defendant: Withheld

16

(tie). Family settles nursing home death case for $4M

The family of a man who died after he fell while at a North Carolina nursing home has settled a lawsuit against the nursing home for $4 million, the family’s attorneys report.

Rachel A. Fuerst, Carma Henson and Thomas Henson Jr. of Henson Fuerst in Raleigh and John Green and Alex Hall of Hall & Green in Wilmington report that the man was at the facility for a “very brief period of time,” during which he suffered a fall

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after which he was sent back to the hospital which diagnosed him with a serious head injury. The family contended that the death was a result of his fallrelated injuries and alleged that “serious administrative failures” in the facility’s management led to the incident.

The identities of the plaintiffs and defendants as well as various details of the case were withheld due to confidentiality requirements.

The Henson Fuerst attorneys provided a written statement saying that punitive damages were an issue in the case and dozens of depositions were taken in the matter, including those of treating healthcare providers employed at the facility. Experts identified by the plaintiff included authorities in nursing and nursing administration as well as nursing home care, electronic records, neurosurgery and forensic economics.

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

SETTLEMENT REPORT – NURSING HOME

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

16

(tie). Cherokee Co. to pay $4M for illegal separation

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

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

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

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

“David Hughes, the social workers’ supervisor, said that the county’s lawyer … said that petitions are expensive,” Wijewickrama said. “Well, petitions for DSS cases are free—what’s expensive is the services you provide these children.

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

Molly’s biological father gained custody of her and her younger sister, Heaven, when their mother died unexpectedly in 2015, but the siblings began living with their grandmother.

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

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

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

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

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

Despite never being presented to the court as an abused, neglected, or dependent child, Molly said that she was separated from her sister and other family who knew and loved her and forced to sacrifice her adolescence, leading to “sadness, pain, and emotional distress” that later manifested into numerous life difficulties. At no time did Cherokee County provide medical care or other services and benefits that would’ve been required had the lawful process of a court proceeding been undertaken, she asserted.

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

In May, a federal jury awarded $4.6 million to a father and daughter in connection with the scandal, which has generated national attention and federal criminal charges. Two DSS employees—former county attorney Scott Lindsay and DSS director Cindy Palmer—were indicted on several charges.

Palmer has since pleaded guilty to felony obstruction of justice and is serving 12 months of unsupervised probation.

The status of Lindsay’s cases is unclear.

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

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

Sean Perrin of Womble Bond Dickinson in Charlotte, Patrick Flanagan of Cranfill, Sumner & Hartzog in Charlotte, and Mary Euler of McGuire, Wood, & Bissette in Asheville represented the defendants.

Lawyers Weekly was unable to speak with defense counsel before press time.

Wijewickrama said that Heaven Cordell settled her suit for $450,000, and that 21 cases are still pending discovery scheduling orders and must be reported to the court by May 2. He said he hopes that the litigation results in more than just monetary awards.

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

SETTLEMENT REPORT — CIVIL RIGHTS

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

Court: U.S. District Court for the Western District of North Carolina Case No.: 1:20-199 Judge: Martin Reidinger Date of settlement: Dec. 6, 2021 Most helpful experts: Dr. Jesse Raley of Columbia, South Carolina Insurance carrier: North Carolina Association of County Commissioners’ Liability and Property Pool Attorneys for plaintiff: David Wijewickrama and Ron Moore of the Law Office of David Wijewickrama in Waynesville, Melissa Jackson of Waynesville, and D. Brandon Christian of Fayetteville

Attorneys for defendant: Sean Perrin of Womble Bond Dickinson in Charlotte for Cherokee County, Cherokee County Department of Social Services, Scott Lindsay, and Cindy Palmer; Patrick Flanagan of Cranfill, Sumner & Hartzog in Charlotte for Scott Lindsay; and Mary Euler of McGuire, Wood, & Bissette in Asheville for Cindy Palmer

19.

Fatal work zone crash leads to $3.6M settlement

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.

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 Superior 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

20.

Jury awards $3.41M to woman sexually abused by father

A Wake County jury has awarded $3.41 million to a 23-year-old woman for sexual abuse she endured for nearly a decade.

Ian Richardson of Vann Attorneys and Daniel Barker of Barker Richardson, both in Raleigh, report that their client, Moriah Taylor, was repeatedly sexually abused by her father, David Taylor, from the time she was 8 years old until she reported the abuse to her bishop when she was 17. Her mother, Toby Taylor, knew about the abuse and did nothing to stop it, Richardson said.

Ordinarily, Lawyers Weekly does not divulge the names of victims of sexual abuse. But Richardson said that his client “wanted to shine a bright line on what happened, as she felt like when she was a child this was improperly swept under the rug by

14 / TOP V&S 2021 numerous people, including her mother.”

“I think, at least for our client, there was something powerful about facing this situation head-on,” Richardson said.

Court records show that David Taylor was convicted of attempted sexual battery in 2015, and Richardson said that David admitted to sexually abusing Moriah approximately five times, though Moriah claims she was abused “more times than she can count.”

The suit alleged negligence and negligent infliction of emotional distress by Toby Taylor. Richardson said that Toby admitted to knowing that when Moriah and some of her sisters (David and Toby have 11 children together, Richardson said) were younger, David would call them into his home office “to inspect their breasts.”

“Toby told [Child Protective Services] that she knew something was going on, but couldn’t put her finger on it,” Richardson said.

Richardson said that David served just a few days in jail after pleading guilty to the offenses, time meted out only after he violated probation by attempting to contact Moriah.

“Therefore, we asked a civil jury to hold both he and Toby Taylor accountable for what happened and impose a punishment consistent with the nature of the abuse,” Richardson said.

David and Toby represented themselves at trial.

After a three-day trial, the jury deliberated about four hours, Richardson said, before finding them liable on Aug. 19 and awarding Moriah $1,185,800 in actual damages and $2,225,000 in punitive damages.

Nevertheless, Richardson said he considers it only “halftime” in the case, since David and Toby claim that they are too poor to pay the judgment.

“But we have evidence that they own cryptocurrency and substantial precious metals,” Richardson said. “So now we’re going to go focus on collecting.”

VERDICT REPORT — SEXUAL ABUSE

Amount: $3,410,800 Injuries alleged: Emotional distress and post-traumatic stress disorder Case name: Moriah Taylor v. David and Toby Taylor Court: Wake County Superior Court Case No.: 18-CVS-12294 Judge: Graham Shirley Date of verdict: Aug. 19, 2021 Demand: $1 million Highest offer: $25,000 Attorneys for plaintiff: Daniel Barker of Barker Richardson and Ian Richardson of Vann Attorneys, both in Raleigh Attorneys for defendants: None

21.

Roadside crash leads to $3.25M settlement

The estate of a woman who was killed as she sat in her disabled car has settled its wrongful death suit for $3.25 million, the estate’s attorney reports.

Mark Gray II of Gray Legal Group in Greensboro reports that the victim was on her way home from work one early afternoon when her sedan broke down in the right lane of Interstate 40. As she sat in her vehicle with her blinkers on, a tanker being operated by a young driver ran over her vehicle, Gray said. She survived for 11 days before succumbing to her injuries.

“The young mother left behind a young son who will inherit her estate but will also never get to truly experience the love of his mother,” Gray said.

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

Gray said that defense counsel had initially contested the tanker driver’s liability and raised the defense of contributory negligence until the investigation—which included eyewitnesses, subpoenas of the Greensboro Police Department, and expert opinions—proved otherwise.

The case was settled prior to any lawsuit being filed. The settlement was approved (because the beneficiary is a minor) by Judge James Hill in October

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SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $3.25 million Injuries alleged: Death Case name: Case settled before any suit was filed Venue: Confidential Date of settlement: October 2021 Most helpful experts: Steve Farlow (engineer and accident reconstruction analyst) Attorney for plaintiff: Mark Gray II of Gray Legal Group in Greensboro Attorneys for defendant: Withheld

22.

DOT to pay $3.2M for loss of parking at drug store

An eminent domain lawsuit over a Wilmington property that houses a CVS drugstore has reached a $3.2 million settlement, the landowner’s attorneys report.

George Autry Jr., Stephanie Autry, and Jeremy Hopkins of Cranfill Sumner in Raleigh report that the dispute concerned parking issues that the North Carolina Department of Transportation’s road-widening plans might create.

Hopkins said that the property had a AAA tenant, meaning a tenant with the highest possible credit rating, and as a result of the taking, the property had parking and drive aisles that were impacted.

“It changed the highest and best use of the property,” Hopkins said. “What the DOT did was they left the owner with a property that was no longer suitable for the tenant.”

The client, Ogden Associates, was landlord to the CVS location, which Hopkins said is still working with Ogden to see if a move can be avoided in the wake of the road construction and utilities easements.

“They are trying to figure out if they can work anything out,” he said.

Stephanie Autry said that Odgen bought adjoining property as a partial, off-site cure for the loss of parking, which corroborated the appraisers’ opinion regarding the extent of the damage due to the taking. She described the lot as a “premium location” with two other major drugstores on other corners of the intersection.

“The DOT’s appraiser recognized that the site would no longer be suitable for a premier national drug store chain as a result of the taking,” Autry said. “However, he failed to properly value the property before the taking.”

Autry said that the owner also agreed to dismiss a related MAP Act case as part of the settlement.

SETTLEMENT REPORT – EMINENT DOMAIN

Amount: $3.2 million Injuries alleged: Land condemnation Case name: NCDOT v. Ogden Associates, et al.

Court: New Hanover County Superior Court Case No.: 17-CVS-04042 Date of settlement: July 9, 2021 Most helpful experts: John Cockrum of Wilmington (contractor) Attorneys for landowners: George Autry Jr., Stephanie Autry and Jeremy Hopkins of Cranfill Sumner in Raleigh Attorney for condemnor: John Oates of the North Carolina Department of Justice in Raleigh

23.

By gorge: DOT to pay $2.9M for taking scenic land

The North Carolina Department of Transportation will pay $2.9 million to a landowner after its road-widening operation required it to take part of a three-acre tract of land in Caldwell County that had previously had an unobstructed view into the Grandfather Mountain Gorge, the landowner’s attorneys report.

George Autry Jr., Stephanie Autry, and Jeremy Hopkins of Cranfill Sumner in Raleigh report that the DOT initially contended that the plot, owned by

the Arbuckle family, had been unsuitable for development altogether, but the dispute ultimately it became a debate over the degree to which it might be utilized for residential purposes.

“There was a dispute in the case about the number of home sites that could be built on the property, and the Arbuckles, through the use of local engineers, were able to show that the property was highly developable and therefore had immense value,” Hopkins said.

While there were no structures on the land at the time, Hopkins said that the site was surrounded by homes that had sprung up due to the majestic view.

“It’s a beautiful piece of property,” he said. “After we were able to demonstrate the potential, the DOT acknowledged that the taking was going to severely impact the development potential of the property.”

Hopkins said the DOT wasn’t claiming the entire three-acre plot, and its road-widening operation would consume only three-tenths of an acre, but the enormous retaining walls necessitated by the region’s mountainous topography would make access to the tract difficult or impossible.

“This case was not so much about the amount of land taken as it was the use of the part that wasn’t taken,” Hopkins said.

The family contended that the property was worth more than three-and-a-quarter million dollars. The DOT had initially offered only $432,950.

An additional issue increasing the potential recovery in the matter was the especially long period over which it had dragged out in court. The parties had been in dispute since 2011.

“There was well over $1.5 million in interest that was at stake,” Hopkins said.

SETTLEMENT REPORT – EMINENT DOMAIN

Amount: $2.9 million Injuries alleged: Partial taking of a three-acre tract of land, loss of development potential, interest Case name: Department of Transportation v. Howard Bell Arbuckle, III, et al.

Court: Caldwell County Superior Court Case No.: 11-CVS-1424 Date of settlement: June 9, 2021 Most helpful experts: Jason Gaston of Boone (engineering) Attorneys for landowners: George Autry Jr., Stephanie Autry, and Jeremy Hopkins of Cranfill Sumner in Raleigh Attorneys for condemnor: Thomas Lawton and Matthew Holloway of Ashville

24.

DOT to pay estate $2.8M in one of last Map Act cases

Doris White didn’t live to see the conclusion of her lawsuit against the North Carolina Department of Transportation, but her attorney, Matthew Bryant of Hendrick Bryant Nerhood Sanders & Otis in Winston-Salem, said the $2.8 million settlement in her case had been a long time in coming.

“Fighting the State of North Carolina is not as easy as one might think to say the least,” he said.

“It took a long time, but everyone has been properly compensated and it has been professionally very gratifying.”

White’s matter is among the last in a very large influx of inverse condemnation cases that has been occupying Bryant’s firm since 2009, when it began a challenge to the state’s Map Act, a piece of legislation from the late 1980s that allowed the DOT to draw up protected corridors covering parcels of property it wished to reserve for future acquisition in furtherance of roadway construction.

The act left landowners in the path of the state’s highway plans in limbo, with property that could be neither improved nor subdivided. White, whose farm was impacted by the Northern Beltway Corridor, was one example. Her suit accused the DOT of leaving plaintiffs like her in the lurch for years trapped with property that had little market value and crippling development restrictions.

Bryant said that ultimately his firm and its partners handled about 500 cases like White’s, stretching across seven or eight counties although most of them were in the Winston-Salem area.

The watershed moment came in 2016 with Kirby

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v. North Carolina Department of Transportation, in which the state’s Supreme Court sided with the landowners and ruled that compensation was owed to individuals whose land had been effectively appropriated by the state. After that, case after case began to settle.

“The firm has probably distributed close to $300 million in payouts over the last three years just on these condemnations,” Bryant said. “To the department’s credit, we reached resolutions that made sense to everybody … Ms. White had been in this situation for over a decade or two and, through the litigation, we were able to get that resolved along with all of her neighbors.”

SETTLEMENT REPORT – EMINENT DOMAIN

Amount: $2.8 million Injuries alleged: Restrictions on development potential under the Map Act Case name: Doris White v. North Carolina Dept. of Transportation Court: Forsyth County Superior Court Case No.: 15-CVS-3231 Date of settlement: June 16, 2021 Attorney for plaintiff: Matthew Bryant of Hendrick Bryant Nerhood & Sanders in Winston-Salem Attorney for defendant: North Carolina Department of Transportation

25.

Fatal rear-end collision in work zone leads to $2.5M settlement

The mother of a woman who died after she was rear-ended by a pickup truck driver in a construction zone has settled a claim against the at-fault driver’s employer for $2.5 million, her attorneys report.

Sam Coleman, James Rainsford, Katherine Merritt, and Jason Murphy of Coleman, Gledhill, Hargrave, Merritt & Rainsford in Hillsborough report that Lisa Revels was on her way to her job as a hairstylist in July 2020 when she stopped in a construction zone on U.S. 70 in Hillsborough. The at-fault driver, an employee of Graham Tractor Co., was driving a large pickup truck owned by the company at about 60 mph and slammed into the back of Revel’s Volkswagen Beetle. She died instantly.

Liability was uncontested. The driver later pleaded guilty to misdemeanor death by vehicle, and Revels’ mother and brother, who are now raising her three children, appeared at his sentencing hearing and asked the judge not to punish him. He ultimately received community service.

“By all accounts, she was kind and beautiful,” Rainsford said. “[Her family] are just very kind spiritual people and renewed my faith in humanity.”

Allen Smith of Hedrick Gardner in Charlotte represented Graham Tractor Co. He could not be reached for comment.

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $2.5 million Injuries alleged: Death Case name: Judy Knighten Aldridge, in her capacity as the Personal Representative of the Estate of Lisa Aldridge Revels v. Graham Tractor Company, Inc. Court: Orange County District Court Case No.: 20-CVD-901 Mediator: Tom Duncan of Greensboro Date of settlement: Jan. 18, 2021 Most helpful experts: Tricia Yount of Charleston, South Carolina (economist) Attorneys for plaintiff: Sam Coleman, James Rainsford, Katherine Merritt, and Jason Murphy of Coleman, Gledhill, Hargrave, Merritt & Rainsford in Hillsborough Attorney for defendant: Allen Smith of Hedrick Gardner in Charlotte

26.

Unsecured cargo leads to $2.2M settlement

A truck driver who was injured by falling car-

go has settled her suit for $2.2 million, her attorneys report.

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

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

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

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

Some of the delay in the case was also due to declaratory judgment actions filed by the involved liability carriers to determine which of them would be responsible to supply coverage for the corporate defendant, Blocker said.

Blocker said that the client spent several days in the hospital and required treatment at a multi-disciplinary (physical therapy, psychological treatment, and vocational rehabilitation) rehabilitation center and from eye, ears, nose, and throat specialists and an orthopaedic surgeon.

The client suffered from seizures until approximately a year ago, Blocker wrote, when her neurologist found an effective medication.

Initially dependent on a walker for mobility, the client now uses a cane only on occasion, Blocker said. She hasn’t returned to work, however, and was approved for Social Security benefits.

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

SETTLEMENT REPORT — PERSONAL INJURY

Amount: $2.2 million Injuries alleged: Subarachnoid hemorrhage, traumatic brain injury, non-displaced right tibial plateau fracture Case name: Withheld Court: Withheld Mediator: Thomas Duncan Date of settlement: Sept. 13, 2021 Special damages: Workers’ compensation lien of $356,629.96 Most helpful experts: Steve Farlow of Accident Reconstruction Analysis in Raleigh and Jessica Conard of Vargas Vocational Consulting in Raleigh Insurance carrier: Withheld Attorneys for plaintiff: Adrienne Blocker and Michael A. DeMayo of DeMayo Law Offices in Charlotte Attorneys for defendant: Withheld

27.

Driver hit by tractortrailer settles claim for $2.1M

A motorist struck by a tractor-trailer in North Carolina has obtained a $2.1 million settlement, his attorney reports.

“He saw the truck coming from behind in his rearview,” said Michael Greer of Hensley, Cloninger & Greer. “He realized that the truck wasn’t going to be able to stop in time, so he cut the wheel and tried to get onto the shoulder.”

Unfortunately, Greer said, the truck did the same thing and slammed into the back of his client’s vehicle.

Many details of the case, including the names of the plaintiff and the defendants, the location of the accident, and the names of the defendants’ counsel, were withheld pursuant to a confidentiality agreement.

Greer said that his client suffered a traumatic brain injury and cervical spinal stenosis—a narrowing of the spaces within the spine, which can put pressure on the nerves that travel through it—that required two-level fusion.

Greer said that the defense raised the issue of contributory negligence, and the trucker contended that the plaintiff had come to a stop before collision.

Greer said that his client contended that he was still moving when the impact happened, an assertion that Greer said the accident report supported.

Damages were also disputed in the matter, which was ultimately resolved through mediation that led to a settlement agreement reached on February 12.

Jason James of Bell, Davis & Pitt in Charlotte mediated the settlement.

“The defense claimed that there was no need for attendant care and that was a big part of our claim,” Greer said.

Greer’s said that a workers’ compensation claim remained open in the case, and the plaintiff filed a special proceeding to reduce a corresponding lien.

Before the hearing, an agreement stipulated that the plaintiff would pay 22 percent of its value.

SETTLEMENT REPORT – MOTOR VEHICLE WRECK

Amount: $2.1 million Injuries alleged: Traumatic brain injury, cervical spinal stenosis requiring two-level fusion Case name: Confidential Court: Confidential Mediator: Jason James of Bell, Davis & Pitt in Charlotte Date of settlement: Feb. 12, 2021 Most helpful experts: Dr. James Hoski of Asheville, Dr. T. Hemanth Rao of Charlotte, Ashley Johnson of Mooresville, and Dr. Gary Albrecht of WinstonSalem Attorney for plaintiff: Michael Greer of Hensley Cloninger & Greer in Asheville Attorneys for defendants: Confidential

28.

Workplace fall leads to $2M settlement

A construction worker who was permanently injured after falling 15 feet from an unprotected stairwell onto a concrete floor has settled his workers’ compensation claim for $2,006,000, his attorneys report.

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

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

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

The client’s employer did not provide workers’ compensation at the time, the attorneys said, so they had to find coverage and place the largest financial burden on the general contractor. Gantt said that intermediate and general contractors who use “low-cost subs” are subject to assuming full financial responsibility when workers are injured while working for “irresponsible companies” that fail to purchase workers’ compensation insurance.

Gantt said that obtaining the recovery was only part of the challenge because they had to structure the recovery to address competing demands of past and future benefits and current needs. The attorneys consulted with several law offices to coordinate the settlement distribution so that their client could continue to receive Social Security Disability and Medicare/Medicaid coverage and “achieve the best quality of life possible based on his unfortunate circumstances.”

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

Kathy Gleason of Candler mediated the settle-

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ment, which was agreed to on Sept. 3.

SETTLEMENT REPORT – WORKERS’ COMPENSATION

Amount: $2.006 million Injuries alleged: Traumatic brain injury, subarachnoid hemorrhage, skull fracture Case name: Withheld Court: North Carolina Industrial Commission Mediator: Kathy Gleason of Candler Date of settlement: Sept. 3, 2021 Most helpful experts: Cynthia Wilhelm, Ph.D. of Chapel Hill (life care plan) and Oliver Wood of Columbia, South Carolina (financial loss analysis) Attorneys for plaintiff: David Gantt of Gantt Law Office in Asheville and Perry Fisher of Fisher Stark in Asheville Attorneys for defendant: Withheld

29

(tie). City to pay $2M for police officer’s faked drug charges

The city of Raleigh will pay $2 million to 15 plaintiffs who claim that officers with the Raleigh Police Department used brown sugar and an unreliable confidential informant to frame them for drug trafficking.

Abraham Rubert-Schewel and Emily Gladden of Tin Fulton Walker & Owen in Durham and Raleigh, and Michael Littlejohn of Charlotte,

represented the plaintiffs in the federal civil rights lawsuit. The attorneys said that their clients were falsely arrested and jailed when Officer Omar Abdullah arranged phony drug transactions and other named defendants—including a sergeant and a lieutenant—failed to intervene in the ploy.

The confidential informant is identified in court documents only as “Aspirin,” a nickname police gave him after he sold them crushed aspirin passed off as cocaine. After arresting him, police recruited Aspirin to work for them as an informant.

According to the complaint, Aspirin, who was homeless, made a few low-level crack buys for the department but wanted to earn more money. Abdullah promised him bigger paydays for bigger cases, plaintiffs said, so the pair conspired to fabricate several heroin charges.

After he met with each dealer, Aspirin claimed that they sold him a heroin-like substance, which he handed over to police. But the plaintiffs say that whatever Aspirin turned in as evidence, he carried into those meetings.

“We are not sure if the CI planted the fake drugs or if Abdullah did, but our clients did not have them,” Rubert-Schewel wrote in an email to Lawyers Weekly.

The complaint states that, against department policy, Aspirin shielded his undercover camera to prevent the alleged transactions from being recorded, and that after the alleged buys, Abdullah met alone with Aspirin and paid him for his participation.

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In every case in which the alleged drugs were tested, according to the suit, they tested negative for a controlled substance. In some cases, officers either failed to tell prosecutors about the test results or “slowwalked” the testing process. Abdullah was aware that the substances were not drugs, but made the arrests anyway.

When officers did report the fake heroin to supervisors, the supervisors not only failed to prevent the false arrests and wrongful incarcerations, but continued to use Aspirin as an informant, “resulting in additional prosecutions of innocent plaintiffs.”

Officers also failed to notify or timely notify the Wake County District Attorney’s Office about the test results, the suit says.

Charges against all of the plaintiffs were subsequently dismissed, but their attorneys said that because of the wrongful incarceration, their clients were separated from their loved ones, lost jobs, were forced out of their homes, and missed birthdays and funerals.

“All were traumatized because of their wrongful detention or incarceration and the fabricated allegations against them,” the attorneys said in a release. “The RPD VICE unit’s actions also resulted in the unlawful detention of numerous women and children and at least one illegal SWAT raid of a family’s home.”

In addition to the monetary award, the plaintiffs have made recommendations and requested that the police department and the Wake County District Attorney’s Office adopt new policies regarding the testing of controlled substances, how drug crimes are charged, and how informants are handled.

Rubert-Schewel said that the policy recommendations were not made demands because they were not finalized until shortly before mediation.

“We hope the City adopts them,” Rubert-Schewel wrote. “They were drafted by us, with input from our clients, and our expert Howard Jordan, the former Oakland Chief of Police.”

Dorothy Kibler of the City of Raleigh Attorney’s Office represented the city of Raleigh. In an email, public information officer Julia Milstead wrote that city leaders “appreciate the efforts of all involved” and that while the settlement ends the lawsuit, the police department is dedicated to making sure that nothing like this happens again.

“No one should ever be arrested based on fraudulent evidence,” Milstead wrote.

Jason Benton of Parker Poe Adams & Bernstein in Charlotte represented Abdullah. Benton did not immediately return a request for comment.

SETTLEMENT REPORT — CIVIL RIGHTS (1983 CLAIM)

Amount: $2 million Injuries alleged: False arrest and incarceration, loss of employment, pain and suffering, others Case name: Washington, et al. v. The City of Raleigh, et al.

Court: U.S. District Court for the Eastern District of North Carolina Case No.: 21-cv-00194 Judge: Richard Myers Date of settlement: Sept. 28, 2021

Attorneys for plaintiffs: Abraham Rubert-Schewel and Emily Gladden of Tin Fulton Walker & Owen in Durham and Raleigh, respectively, and Michael Littlejohn of Charlotte Attorneys for defendants: Dorothy Kibler of the City of Raleigh Attorney’s Office for the city of Raleigh, and Jason Benton of Parker Poe Adams & Bernstein in Charlotte for Omar Abdullah

29

(tie). 87-yearold man’s estate reaches $2M settlement

A motor vehicle collision that led to the death of an elderly man has resulted in a $2 million settlement, the estate’s attorney reports.

Donald Strickland of Durham reports that the victim spent roughly three weeks in the hospital after a crash in which the defendant’s truck had run a stop sign and struck his driver’s side door at about 25 mph, resulting in traumatic orthopedic and internal injuries.

Due to a confidentiality agreement, many details of the case, including the location of the collision and the identities of the parties and the counsel for the defense, were withheld.

Strickland said that friends and family of the 87-year-old attested that he was in good health for his age, a fact supported by medical records.

“He had taken very good care of himself by eating right and exercising regularly,” Strickland said. “He was outgoing and drove wherever he wanted to go, but his visits with family and friends had been somewhat restricted prior to the collision due to the pandemic.”

Strickland’s said that liability in the matter wasn’t contested, but damages were, and the main dispute over damages related to the victim’s age. Additional factors involved limited economic damages due to a lack of income and low medical expenses thanks to Medicare coverage. Moreover, the defendant appeared to bear only ordinary negligence in a low-speed wreck.

Strickland said the victim had only one heir and the case was ultimately settled pre-suit.

“To support the settlement demand, in addition to the losses to his heir under the wrongful death statute, Plaintiff focused on the decedent’s physical pain and mental suffering while in the hospital,” Strickland said, “especially that mental suffering of the decedent, who was of sound mind, and had to make a choice to live on life support or go to hospice to die as peacefully as possible.”

Strickland said that the victim ultimately opted to go to hospice.

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $2 million Injuries alleged: Death Case name: Confidential Venue: Confidential Date of settlement: December 2021 Insurance carrier: Confidential Attorney for plaintiff: Donald Strickland of Durham Attorney for defendant: Confidential

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31.

Tire maker to pay $1.75M in wrongful death case

The parents of a truck driver who was killed after an accident on a North Carolina interstate has negotiated a $1.75 million settlement with a tire manufacturer, the parents’ attorneys report.

James A. Roberts III and Matthew D. Quinn of Lewis & Roberts in Raleigh represented the parents of truck driver, whose vehicle suffered a sudden and catastrophic failure of the front passenger side tire resulting in a jackknife and collision with a tree. The 2017 accident apparently occurred due to tread and belt separation which the family contended was a result a design defect which left a negligently manufactured belt assembly and an inner lining that was too thin.

The names of all of the parties in the case were kept confidential as part of the mediated settlement.

Roberts said that settlement usually isn’t easy in such cases, and the defendants denied that the tire was defective and argued that the truck driver may have underinflated it.

“Tire manufacturers typically don’t roll over,” Roberts said. “They fight.”

The litigation was subject to several significant hurdles which frequently bedevil plaintiffs in tire defects cases, the attorneys said. The tire manufacturer was a foreign corporation, and so the bulk of the case documents were in a foreign language, it was difficult to obtain service of process, and the defendants raised a “formidable” personal jurisdiction defense. Also, despite the assistance of the tractortrailer’s owner, little was known about the tire’s maintenance history, chain-of-custody, or condition.

But expert testimony was helpful in showing that the belt and lining were the true cause of the problem, and X-rays of the tire were a key piece of evidence, the attorneys said.

“It was completely out of line, and the x-ray photographs really showed that quite clearly,” Quinn

said. “We felt confident that, had we needed to go in front of a jury, we could have helped the jury to understand what happened with this tire based on that evidence.”

The attorneys said that testimony and photos from law enforcement was also an important part of the case, with two of the responding officers identifying tire failure as the cause and indicating that the driver’s reaction didn’t contribute to the accident.

The graphic photos, which Quinn called “difficult to look at,” also could have proved decisive in front of a jury.

When you understand that he survived for four minutes plus you have a visual of the injuries that he suffered, it was particularly powerful,” Quinn said. “Anybody who looked at it, their heart would have really gone out to the decedent and his family.”

The parent’s economist estimated their son’s future income at just over $1 million, with $200,000 in loss of services to his parents. The defendants had also contested damages, the attorneys said, and argued that the driver was overweight, smoked and had diabetes.

SETTLEMENT REPORT – PRODUCT LIABILITY/ WRONGFUL DEATH

Amount: $1.75 million Injuries alleged: Death Case name: Confidential Court: Confidential Date of settlement: Confidential (but case settled in 2021) Special damages: $1.022 million in future earnings, $200,000 in care and services to heirs, $10,000 in funeral expenses Most helpful experts: David Southwell (tires), Wayne McCraken (accident reconstruction), and J.C. Poindexter (economics)

Insurance carrier: Confidential Attorneys for plaintiff: James A. Roberts III and Matthew D. Quinn of Lewis & Roberts in Raleigh Attorneys for defendant: Confidential

32.

Board of Ed pays $1.55M in vehicle crash suit

The Cumberland County Board of Education has paid a $1.55 million settlement to a woman who was injured when a work truck owned by the school district jack-knifed across the road, causing the woman to broadside the attached trailer.

Shawn Howard of Maginnis Howard in Raleigh and Rebecca Britton of Britton Law in Fayetteville represented the plaintiff, Deborah Terry.

The attorneys said that on the morning of Feb. 8, 2017, Terry and her adult daughter were traveling along the two-lane road in Stedman when the other driver lost control of the dump truck and overcorrected. Terry’s compact car T-boned the trailer, damaging both vehicles and injuring Terry and her daughter.

Howard said that Terry suffered multiple traumatic injuries requiring several surgeries on her rotator cuff, cervical spine, and ankle that required the use of a wheelchair for months, including during her son’s wedding three weeks after the crash. Terry has numerous surgical scars and permanent injuries, Howard said, including chronic ankle pain and a permanent gait issue.

“Her injuries drastically changed her life, limiting many of her previous activities, including her love of volunteer fire-fighting and decorating cakes,” Howard said.

Mary Webb of Ragsdale Liggett in Raleigh represented the defendants. Webb said that several factors led to the mediated settlement approximately one month before trial.

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18 / TOP V&S 2021 that’s why the settlement was in the seven figures,” Webb said. “It is a serious, significant injury with significant property damage … and there is a significant life care plan and economic losses.”

Howard called Terry a humble, loving mother who continues to work full-time even after enduring the pain and physical limitations associated with the crash and multiple surgeries.

“She is one of those clients who instantly endears herself to you and becomes like family,” Howard said. “One of the main reasons we were able to obtain a good outcome for Ms. Terry is because she is simply a fantastic person and that was evident at every stage of the case.”

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.55 million Injuries alleged: Right distal fibular fracture at the malleolus with displacement, rotator cuff tear, compression of spinal nerve at C5-6 Case name: Terry v. Jackson and Cumberland County Board of Education Court: Cumberland County Superior Court Case No.: 19-CVS-5936 Date of settlement: October 2021 Special damages: $125,000 for medical expenses and lost wages Most helpful experts: Cynthia Wilhelm (vocational expert), Julius Poindexter (economist), Dr. Thomas Harbin (psychologist), and Dr. Douglas McFarlane (orthopedic surgeon) Attorneys for plaintiff: Shawn Howard of Maginnis Howard in Raleigh and Rebecca Britton of Britton Law in Fayetteville Attorney for defendant: Mary Webb of Ragsdale Liggett in Raleigh

33.

Massage parlor assault leads to $1.5M settlement

A Wake County woman who was sexually assaulted during a massage at a large-chain establishment has settled her lawsuit for $1.5 million, her attorneys report.

The woman was represented by Winston Kirby and Andrew Avram of Edwards Kirby in Raleigh, who said that the woman suffered minor physical injuries and severe emotional distress after the male massage therapist touched her breasts and genitals.

Many details of the case have been withheld due to a confidentiality agreement.

The woman’s attorneys said that the defendants denied any wrongdoing, disputing the woman’s version of events and focusing on pre-existing emotional trauma in defending claims that she suffered emotional damage from the assault. Defendants also argued that the plaintiff didn’t act like a victim before or after the establishment was made aware of her allegations, her attorneys said.

“Our position was that the client reported her assault within a short time after the occurrence, reported the details of the assault to the managerial staff at the massage establishment, to the police, and to her friends,” Kirby said. “It was difficult for us to reconcile how the client could have acted to make her assault more credible.”

Avram said that the establishment has a history of alleged sexual assaults and that it failed to take remedial measures to make the location safer for guests, including their client. Kirby said that the therapist was charged with sexual battery approximately two years after the incident and that the defendants agreed to the settlement a few months after mediation.

SETTLEMENT REPORT — SEXUAL ASSAULT

Amount: $1.5 million Injuries alleged: Severe emotional distress, minor abrasions Case name: Withheld Court: Withheld Date of settlement: October 2021 Attorneys for plaintiff: Winston Kirby and Andrew Avram of Edwards Kirby in Raleigh

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 28, 2022

Attorneys for defendant: Withheld

34

(tie). Man hit by car while clearing trees settles claim for $1.35M

A 20-year-old who was injured while he was working on a roadway maintenance crew has settled his workers’ compensation claim for $1.35 million, his attorney reports.

Ben Whitley of Whitley Law Firm in Raleigh reports that his client, who works for a company based in North Carolina, was clearing trees near Interstate 20 in Douglas County, Georgia, in September 2019 when he was struck and severely injured by a pickup truck that had careened off the road after being rear-ended by another vehicle.

The client, whose name was withheld due to a confidentiality agreement, suffered several facial fractures, a broken forearm, and traumatic brain injury, Whitley said. He spent three months in intensive in-patient rehabilitation and was diagnosed with a neurocognitive disorder that affects his ability to read and write, problem-solve, remain attentive, and analyze, process, and accurately recall information. He also suffered decreased fine motor dexterity and bilateral grip strength.

Whitley said that at the time of the incident, his client was “on track to attend college.”

A vocational rehabilitation expert opined that the client’s injuries have permanently affected his future earning capacity, Whitley said, and experts believe that his client must make substantial progress before he is ready to return to work or go to school.

Other details about the case, including the identities of the defendants and their attorneys, were withheld pursuant to the confidentiality agreement, but Whitley said that the defense contended that his client has made an incredible recovery and would be fully released from care and able to return to work much earlier than he claimed.

Whitley said that his client has indeed made a remarkable recovery, but that continued outpatient therapy is necessary to help him deal with the lingering TBI-related symptoms.

Whitley said that the client plans on furthering his education as soon as possible.

“With this settlement he can make sure that his costs of education and retraining are completely covered,” Whitley said.

Scott Taylor of Research Triangle Park mediated the settlement, which was agreed to on March 24.

SETTLEMENT REPORT — WORKERS’ COMPENSATION

Amount: $1.35 million Injuries alleged: Traumatic brain injury causing neurocognitive disorder, facial fractures, broken forearm Court: North Carolina Industrial Commission Case name: Withheld Mediator: Scott Taylor of Research Triangle Park Date of settlement: March 24, 2021 Attorney for plaintiff: Ben Whitley of Whitley Law Firm in Raleigh Attorney for defendant: Withheld

34

(tie). Truck driver who lost arm in crash settles suit for $1.35M

A 44-year-old truck driver whose lower arm had to be amputated after he crashed while trying to avoid a disabled truck on a rainy mountain road has settled his claim for $1.35 million, his attorneys report.

David Kirby and Mary Kathryn Kurth of Edwards Kirby in Raleigh report that their client was driving a tractor-trailer around midnight when he came upon a jack-knifed tractor-trailer that was blocking the right lane. While attempting an “avoidance maneuver” the attorneys said, the client’s own truck also jack-knifed and crashed

into a rock face at highway speed.

Many details of the case, including the identities of the parties and the defense counsel and the location of the crash, have been withheld due to a confidentiality agreement.

Kirby and Kurth said the defendants initially raised the defense of contributory negligence by the plaintiff. The client didn’t deny that he’d been speeding in the dark, rainy conditions when the crash occurred and was cited by police for failing to maintain his lane. But he invoked the last clear chance doctrine, arguing that the other driver had the last clear chance to avoid the crash.

“The defendant tractor-trailer driver placed only two of the three bidirectional reflective triangles that are required by the Federal Motor Carrier Safety Regulations, thus failing to adequately warn oncoming motorists of the hazard presented by his tractor-trailer partially blocking one of the two travel lanes,” the firm wrote in an email.

The client suffered amputation of his lower arm, traumatic brain injury, and an open pelvic fracture. His attorneys said that he went into cardiac arrest during a surgery to stabilize his pelvis and control internal bleeding. He continues to struggle with memory problems.

Kurth said that the client emigrated from Vietnam when he was 16 and had long been a commercial truck driver, but his injuries have left him ineligible to hold a commercial driver license.

Without health insurance, workers’ compensation insurance, or other benefits, the client had to foot the bill for all his medical expenses, his attorneys said.

“This was a heavily defended case, and our client was really pleased with the outcome,” Kurth said. “With the help of one of our retained experts, he was able to get a prosthesis from the Hanger Clinic, and he’s working on putting his life back together.”

Ray Owens of Charlotte mediated the settlement, which was agreed to on Feb. 15, 2021.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.35 million Injuries alleged: Arm amputation, traumatic brain injury, open pelvic fracture Case name: Case settled before any lawsuit was filed Venue: Confidential Mediator: Ray Owens of Charlotte Date of settlement: Feb. 15, 2021 Most helpful experts: Steven Farlow of Accident Reconstruction Analysis in Raleigh, Billy Erskine of Smithfield (trucking safety), and Dale Berry (prosthetics) Attorneys for plaintiff: David Kirby and Mary Kathryn Kurth of Edwards Kirby in Raleigh Attorneys for defendant: Withheld

36

(tie). Family reaches $1.3M settlement for fatal drunk driving crash

The family of a man who was killed in a headon collision will receive a $1.3 million settlement, most of it from the drinking establishment which served alcohol to the driver that struck the victim’s vehicle, the family’s attorney reports.

T. Shawn Howard and Karl Gwaltney of Maginnis Howard in Raleigh and Andrew Cioffi of Raleigh represented the survivors of a Charlotte man, whose name was withheld pursuant to a confidentiality agreement. The man was transporting his elderly mother from Michigan when a drunk driver traveling the wrong way on Interstate 77 hit their car near Statesville.

Both drivers were killed in the accident. The mother survived with significant injuries.

“The family was devastated,” Howard said. “It took them awhile to even think about hiring counsel to pursue the case. When they eventually did, it had been almost a year, and so the trail was cold in a way.”

Howard said the matter entailed a significant amount of investigative work, not just due to the time delay but also because of the death of individual liable in the accident.

“When that happens, it becomes very, very dif-

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ficult for us to find out where they were,” Howard said.

Neither phone records nor credit card transactions turned up any evidence of the other driver’s activities. Ultimately, the investigation unearthed information from a co-worker that showed where she had been before the crash, and the attorneys learned that she had apparently consumed seven vodka drinks at a local establishment over the course of two hours and had a .19 blood alcohol level. Howard said the plaintiff’s expert opined that the high BAC indicated that the drinks were likely stronger than normal.

The settlement included $1 million from the bar and $300,000 from the insurer for the at-fault driver.

Howard said he believed the case would have been well-received by a jury had it gone to trial.

“I think it would have been a substantial verdict,” Howard said. “I think giving somebody that many alcoholic drinks when they are sitting in a bar by themselves and watching them walk out with keys in their hand is a pretty dangerous thing to do.”

SETTLEMENT REPORT – DRAM SHOP

Amount: $1.3 million Injuries alleged: Death (bilateral ankle fractures for surviving passenger) Case name: Confidential Court: Confidential Date of settlement: August 2021 Most helpful experts: Randy Durnal of Tucson, Arizona (service of alcohol) and David Eagerton of Buies Creek (toxicologist) Attorneys for plaintiff: T. Shawn Howard and Karl Gwaltney of Maginnis Howard in Raleigh and Andrew Cioffi of Raleigh Attorneys for defendants: Confidential

36

(tie). Injured ‘Ironman’ settles suit for $1.3M in bike crash

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 was pretty significant, but I often 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.”

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.

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

38.

Clogged trach leads to death, $1.1M settlement

The estate of an 18-month-old child who died while under the care of a home health nurse has settled its medical malpractice suit for $1.1 million, its attorneys report.

The boy, born prematurely and home after six months in the neonatal intensive care unit, died from hypoxic ischemic encephalopathy—brain damage suffered when he could not breathe through his clogged tracheostomy tube, said one of the plaintiff’s attorneys, Michael Rousseaux of Elam & Rousseaux in Charlotte.

Rousseaux said that when the child began struggling to breathe, the nurse attempted to suction the trach. When that didn’t work, Rousseaux said, the nurse panicked, failed to properly perform CPR, and failed to change the trach, though a new one was nearby.

“Changing the trach is a simple process that takes less than a minute and clears the airway if suctioning it doesn’t work,” Rousseaux said.

“Knowing how to do this and when to do this is critical to caring for a ventilator dependent patient with a tracheostomy.”

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

Rousseaux said that the child had been weaned from oxygen and was successfully being weaned from a ventilator, and that the family contracted with a home health agency to help provide the required constant care.

But while under the care of a home nurse, just hours after the parents left town for their first trip since their child’s birth, he woke up coughing and unable to breathe properly.

The nurse called 911 but hung up because she did not know the home address, Rousseaux said, and did not answer a call-back from emergency medical workers because she was attempting to make other calls.

“Six minutes later, the nurse called 911, and repeated, ‘I need 911’ 40 times in less than two minutes, without providing any useful information,” Rousseaux said. “By the time the first responders arrived, the child was non-responsive.”

The parents learned of the incident when their plane landed at their destination, but they were unable to get a return flight until the following day.

“Upon returning home, they were able to get to the hospital and spend the last few hours of their son’s life with him,” Rousseaux said.

Rousseaux said that after viewing video clips from a crib-side camera documenting the incident, in-house counsel for the home health agency agreed to discuss a pre-suit resolution, including mediation. But talks stalled when the defendants failed to offer more than the statutory cap for noneconomic damages in medical malpractice cases, said Rousseaux, who argued that the caps should

not apply where the nurse’s conduct constituted reckless disregard.

The plaintiffs filed suit, but a second mediation soon led to the settlement.

SETTLEMENT REPORT — MEDICAL MALPRACTICE

Amount: $1.1 million Injuries alleged: Wrongful death Case name: Withheld Court: Union County Superior Court Mediators: Wayne Huckle (pre-suit) and Andy Cromer (second mediation) Date of settlement: May 2021 Special damages: $28,000 in medical expenses Attorneys for plaintiff: Michael Rousseaux and Bill Elam of Elam & Rousseaux in Charlotte Attorneys for defendant: Withheld

39.

Charlotte to pay $1.07M for land for trolley line

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 planned to take nearly 12,400 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 1.2-acre 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 being rented out for interim purposes.

Odom said that the highest and best use of the property would have been 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 of the property), Lee McLaren (land use and zoning and 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

20 / TOP V&S 2021

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(tie). Man hit while plowing snow settles claim for $1M

A man who was injured when he was hit nearly head-on while plowing snow has settled a pre-lawsuit claim with two insurance carriers for $1 million, his attorneys report.

Bob Lucas and Sarah Ellerbe of Lucas, Denning and & Ellerbe in Selma report that their client, whose name was withheld, was driving a commercial vehicle with a snow plow attached to the back of it when the at-fault driver, who had been speeding, lost control of his vehicle, crossed a median, and stuck the client’s vehicle nearly head-on. The wreck, which happened in January 2018 in Durham, caused fractures to the client’s left femur and pelvis.

The at-fault driver had $30,000 in liability coverage, and the client had a $1 million underinsured motorist insurance policy on the commercial vehicle, which he owned, with Donegal Insurance Group, which paid the remaining $970,000.

Lucas described the client as a “large person” who weighed more than 400 pounds when he was injured, and his weight contributed to the severity of the longstanding issues stemming from his pelvic injury. Donegal argued that his weight was a significant factor in the seriousness of his injury, and weight loss would greatly mitigate his long standing medical issues, but the client argued that he had no duty to lose weight, as he had been large all of his life, including on the date of the wreck.

The clients two orthopedic surgeons, Dr. Mark Gage of Duke Medical Center and Dr. John Chiavetta of Raleigh Orthopedics testified the seriousness of the client’s injury, but said that he should be able to return to work, which he had yet to do at the time of the settlement in January.

The client also filed a worker’s compensation claim, which paid for his medical treatment and his time out of work. A lien on the client’s insurance proceeds was waived as part of the workers’ comp settlement.

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $1 million Injuries alleged: Femur and pelvic fractures Case name: Claim settled before any lawsuit was filed Date of settlement: January 2021 Insurance carrier: Donegal Insurance Group (UIM policy), Nationwide (liability policy) Attorneys for plaintiff: Bob Lucas and Sarah Ellerbe of Lucas, Denning and & Ellerbe in Selma

40

(tie). Road repair negligence leads to $1M verdict

A Wake County jury has ordered a Virginiabased paving company to pay $1 million to a teenager injured when she crashed her vehicle on a road being repaired by the company, the girl’s attorney reports.

Coleman Cowan of the Law Offices of James Scott Farrin in Raleigh represented the plaintiff, Alexandra McArthur. Cowan said that McArthur, then 17, was driving her boyfriend home from school when she turned onto James Austin Road in Willow Spring, which was being re-paved by Whitehurst Paving Company, who’d been contracted by the North Carolina Department of Transportation.

Whitehurst was using a double-layer chipseal process, a surface treatment that includes two layers of tar or asphalt and two layers of gravel. Chipseal is commonly used on lower-traffic areas and is less expensive than other methods of resurfacing, but not as long-lasting. It also presents hazards where its construction is improper or incomplete.

Cowan said that the second layer of gravel on James Austin Road had been applied but not yet swept. His client lost control of her vehicle after running over a patch of loose gravel, Cowan said, spinning into a ditch and slamming into a tree.

“Alexandra broke her collarbone and suffered head injuries,” Cowan said. “[Her boyfriend] suffered a T10 compression fracture and became paralyzed from the waist down.”

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The trial began in February 2020 but was delayed due to COVID-19. On March 13, the same day that then-Chief Justice Cheri Beasley ordered district and superior court proceedings temporarily halted, the jury found Whitehurst liable for negligence and third-party breach of contract, Cowan said. It also found McArthur not liable for negligence in claims filed against her by her boyfriend and not contributorily negligent.

Because of the postponement, the damages phase was put on hold for more than a year. While courtrooms were closed, Cowan said, McArthur and Whitehurst unsuccessfully engaged in settlement talks. Whitehurst’s highest offer, Cowan said, was $250,000.

McArthur continues to suffer from headaches and memory loss, Cowan said. On April 26, nearly 15 months after finding Whitehurst liable, the same jury was presented evidence regarding her injuries. It returned the $1 million the next day.

Daniel Katzenbach of Cranfill Sumner in Raleigh, and Kevin Taylor and John Osgood of Taylor Anderson in Denver, Colorado represented the paving company. Katzenbach declined to comment on the verdict.

VERDICT REPORT — MOTOR VEHICLE CRASH

Amount: $1 million Injuries alleged: Broken collarbone, traumatic brain injury, intracranial bleeding, headaches, and memory loss Case name: Alexandra McArthur v. Whitehurst Paving Co., Inc. Court: Wake County Superior Court Case No.: 18-CVS-5709 Judge: G. Bryan Collins Date of verdict: April 27, 2021 Highest offer: $250,000 Most helpful experts: Sean Dennis of Accident Research Specialists in Cary Insurance carrier: The Cincinnati Insurance Company Attorney for plaintiff: Coleman Cowan of the Law Offices of James Scott Farrin in Raleigh Attorneys for defendant: Daniel Katzenbach of Cranfill Sumner in Raleigh, and Kevin Taylor and John Osgood of Taylor Anderson in Denver, Colorado

40

(tie). Dealership to pay $1M to motorcyclist hurt in hit-and-run

A motorcyclist who was rear-ended in a hit-andrun wreck on Interstate 85 has agreed to a $1M settlement with a used car dealership after evidence strongly implicated a dealership employee who was never charged in connection with the crash, his attorneys report.

T. Shawn Howard and Karl Gwaltney of Maginnis Howard in Raleigh report that the impact of the crash sent their client flying from his motorcycle, landing him in the emergency room, where he underwent a lower back surgery. (Many details of the case, including the names of the parties and the venue, have been withheld pursuant to a confidentiality agreement.)

The client later required a second surgery, his attorneys said, and the injuries will affect him for the rest of his life.

The attorneys said that after the at-fault driver struck their client, he removed his car’s license plate and fled the scene on foot without providing assistance or calling for help. Law enforcement used the vehicle identification number to trace the car to a nearby used car dealership. After being contacted about the crash, the dealership claimed that it didn’t know that the vehicle was missing from its lot.

“The dealership indicated that an unknown person must have come to the dealership and stole the vehicle, as every employee denied using it,” the attorneys said.

During depositions, the plaintiff’s attorneys learned that a particular manager/owner at the dealership was responsible for the vehicle and had primary access to its keys. The attorneys said that the crash site was directly on the manager’s route home from the dealership, and cell tower data

showed that he’d stopped within a two-mile radius of the scene of the wreck, at the time of the wreck, and remained there for several hours.

The attorneys said that the manager claimed that he’d gone straight home after work that day and had nothing to do with the wreck and disputed the claim that his phone had pinpointed his location. He also testified to having had at least four convictions for driving while intoxicated.

“He testified that his wife just happened to destroy his phone on the night of the incident because she caught him talking to his mistress,” the attorneys said.

Law enforcement closed the case without identifying a driver, the attorneys said, but the dealership paid its $1 million policy limit prior to a hearing on the plaintiff’s motion to amend the complaint to add a claim against the manager.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1 million Injuries alleged: Lower back injuries including multiple fractures and herniated discs requiring two surgeries Case name: Withheld Court: Withheld Date of settlement: Oct. 21 Special damages: $385,000 Most helpful experts: Ben Levitan (telecommunications expert) Insurance carrier: Withheld Attorneys for plaintiff: T. Shawn Howard and Karl Gwaltney of Maginnis Howard in Raleigh Attorneys for defendant: Withheld

40

(tie). Estate of hit-andrun victim settles for $1M

The estate of a woman who died after she was struck by a bread delivery truck while she was walking down a busy residential street has settled its wrongful death lawsuit for $1 million, her attorneys report.

David Kirby and Mary Kathryn Kurth of Edwards Kirby in Raleigh report that 65-year-old Nancy Mallian was walking her two dogs on the shoulder of Penny Road in Cary at approximately 6 a.m. on Oct. 9, 2020 when she was hit despite having taken numerous safety precautions.

“Mrs. Mallian was wearing a reflective vest and a head lamp, so she was visible to traffic, but it was dark, and she was walking with her back toward traffic,” her attorneys wrote in an email to Lawyers Weekly.

The attorneys said that the truck’s passengerside mirror struck Mallian in the back of the head, killing her. The truck also ran over and killed one of Mallian’s dogs. The defendant driver, 54-year-old Burt Ramos of Morrisville, left the scene but turned himself in the same day after seeing news reports of a dead pedestrian in a neighborhood he’d driven through. Ramos told authorities that he believed that he’d hit a deer, but court records show that he was charged with felony hit and run and misdemeanor death by motor vehicle.

The case settled for the $1 million available policy limits after a demand letter was sent to Allstate, the insurance carrier, the attorneys said.

Jodee Larcade of Raleigh represented Allstate.

Larcade did not immediately respond to a message seeking comment.

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $1 million Injuries alleged: Death Case name: Settled before any suit was filed Venue: Wake County Date of settlement: Oct. 21, 2021 Insurance carrier: Allstate Most helpful experts: John Flanagan of Accident Research Specialists in Cary Attorneys for plaintiff: David Kirby and Mary Kathryn Kurth of Edwards Kirby in Raleigh Attorney for insurer: Jodee Larcade of Raleigh

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Opinions N.C. SUPREME COURT

21

N.C. COURT OF APPEALS

N.C. SUPREME COURT

Civil Practice Voluntary Dismissal & Withdrawal – Pro Se Litigant – Domestic Violence – Same-Sex Dating Relationship When a pro se litigant went to the clerk of court’s office to obtain a domestic violence protective order against her former girlfriend, (1) the clerk’s staff gave her and she filled out G.S. Chapter 50B paperwork; (2) the trial judge told her she wasn’t eligible for Chapter 50B protection but could seek a no-contact order under G.S. Chapter 50C; (3) plaintiff returned to the clerk’s office, explained what the judge had told her, and was given a new stack of papers, including a voluntary dismissal of her Chapter 50B complaint; (4) plaintiff signed the notice of voluntary dismissal, and it was clocked in by the clerk’s staff; (5) after the clerk’s staff told plaintiff she could still file a 50B complaint even if the judge would deny it, plaintiff struck through the notice of voluntary dismissal and wrote on it, “I strike through this voluntary dismissal. I do not want to dismiss this action”; and (6) plaintiff then returned the form to the staff, who wrote “Amended” at the top and re-filed it 39 minutes after the notice had been clocked in originally.

Under these circumstances, the trial court could consider (a) the amended notice a motion under N.C. R. Civ. P. 60(b) or (b) plaintiff’s amended complaint as a functional re-filing under N.C. R. Civ. P. 41. The trial court had subject matter jurisdiction to consider plaintiff’s claim for a domestic violence protective order under Chapter 50B. We modify and affirm the Court of Appeals’ reversal of the trial court’s denial of a DVPO. The trial court granted a 50C no-contact order but denied a 50B DVPO (which would have included firearms restrictions) because the parties were in a same-sex relationship but had never lived together.

Jurisdiction

The procedures under G.S. § 50B2 are intended to provide a method for trial court judges or magistrates to quickly provide protection from the risk of acts of domestic violence by means of a process which is readily accessible to pro se complainants.

Rule 60(b) establishes that “on motion and upon such terms as are just, the court may relieve a party or [her] legal representative from a final judgment, order, or proceeding for ... mistake, inadvertence, surprise, or excusable neglect.”

Plaintiff’s amended notice of voluntary dismissal—in which she struck through and handwrote “I do not want to dismiss this action” on the form she had inadvertently or

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mistakenly filed 39 minutes previously—served as functional Rule 60(b) motion through which the trial court could, and did, grant equitable relief. There is plainly no doubt as to plaintiff’s intentions as expressed through the amended form: she “[did] not want to dismiss [the] action.”

Likewise, when the trial court allowed plaintiff to amend her Chapter 50B complaint—without objection from defendant—at the hearing on the merits, it reasonably could have considered this amendment as, in essence, a re-filing after a voluntary dismissal.

While it may have been preferable for plaintiff to have filed an official 60(b) motion or a new Chapter 50B complaint for formality’s sake, her amendment nevertheless expressed her intention to proceed with the complaint in such terms that every intelligent person understands what is meant, and therefore has fulfilled its purpose; and courts should not put themselves in the position of failing to recognize what is apparent to everyone else. To hold otherwise would be to exalt the form over the substance.

It was squarely within the discretion of the trial court to understand the plain intent of plaintiff’s amended notice of voluntary dismissal as a Rule 60(b) motion for equitable relief or her amended Chapter 50B complaint as a functional refiling, and to subsequently exercise its jurisdiction.

The trial court did not err in exercising jurisdiction, and the Court of Appeals did not err in its subsequent review.

Other Issues

Plaintiff’s counsel clearly and explicitly challenged the constitutionality of the application of the statute in question under well-established Due Process and Equal Protection doctrines. Moreover, the trial court passed upon this issue orally from the bench, in a form order, and in a written order. Plaintiff’s Due Process and Equal Protection arguments were preserved for appellate review.

Since plaintiff did not bring her complaint to challenge the facial validity of § 50B-2, so N.C. R. Civ. P. 19(d) did not require joinder of the General Assembly in this action.

To the extent that Booker v. Everhart, 294 N.C. 146 (1978), suggests that an appellate court must correct a necessary joinder defect ex meru motu before a ruling on the merits, it is overruled.

Defendant has not challenged the Court of Appeals’ substantive ruling on the merits of the constitutional issue. Accordingly, we do not address the Court of Appeals’ ruling that Chapter 50B’s exclusion of complainants in same-sex relationships from DVPO protection is unconstitutional as applied to plaintiff and those similarly situated, and this portion of the holding stands undisturbed.

Modified and affirmed.

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N.C. COURT OF APPEALS, UNPUBLISHED

Dissent

(Berger, J.): Because the majority fails to adhere to our basic Rules of Civil Procedure, and because the majority’s newly crafted “mistaken or inadvertent dismissal” rule cannot be found in the Rules of Civil Procedure, I respectfully dissent.

A Rule 41(a) dismissal strips the trial court of authority to enter further orders in the case, except as provided by Rule 41(d) which authorizes the court to enter specific orders apportioning and taxing costs.

The proceedings of a court without jurisdiction of the subject matter are a nullity.

Nowhere in the transcript or the trial court’s order is it intimated that the trial court “[understood] the plain intent of plaintiff’s amended notice of voluntary dismissal as a Rule 60(b) motion for equitable relief or her amended Chapter 50B complaint as a functional refiling.”

By failing to adhere to our basic rules, the majority makes our system of justice less predictable and causes our law to become more unsettled.

M.E. v. T.J. (Lawyers Weekly No. 010-018-22, 48 pp,) (Robin Hudson, J.) (Philip Berger Jr., J., dissenting) Appealed from Wake County District Court (Anna Worley, J.) On appeal from the Court of Appeals. Amily McCool, Irena Como, Kristi Graunke and Christopher Brook for plaintiff; Lorin Lapidus, Martin Warf and Gray Wilson for defendant. Ryan Park, Sarah Saint, Eric David, Kathleen Lockwood, Nisha Williams, Andrew Erteschik, John Michael Durnovich, Cosmo Zinkow, Stephen Feldman, Mark Hiller, Garrett Steadman, Kevin Hall, Samuel Hartzell and Ripley Rand for amici curiae. 2022NCSC-23

Civil Practice Personal Jurisdiction – Domestic Relations – Tort/Negligence – Alienation of Affection The Court of Appeals’ majority reversed the trial court’s decision.

We reverse for the reasons stated in Judge Stroud’s dissent (Plaintiff presented evidence that defendant knew or could have inferred that plaintiff’s then-wife was in North Carolina when defendant directed communications to her that allegedly destroyed plaintiff’s marriage. Since there was competent evidence to support the trial court’s denial of defendant’s motion to dismiss for lack of personal jurisdiction, we are required to affirm.).

Ponder v. Been (Lawyers Weekly No. 010-19-22, 1 p.) (Per curiam) Appealed from Mecklenburg County Superior Court (W. Robert Bell, J.) On appeal from the Court of Appeals.

Amy Simpson for plaintiff; Preston Odom and Claire Samuels for defendant. 2022-NCSC-24

29

Domestic Relations Parent & Child – Support Modification – Increased Income & Needs – Above the Guidelines A divided panel of the Court of Appeals affirmed the district court decision. We affirm the majority decision (In this above-the-guidelines child support case, the trial court was not required to use a particular formula to determine the amount of support.

The needs of the parties’ child have increased since a 2012 child-support order and plaintiff-Father’s income is more than sufficient to cover his individual expenses, the child’s expenses and the amount of child support ordered; therefore, the trial court properly based the child support amount on the court’s consideration of the parties’ income and expenses; their estates, earnings, and conditions; the accustomed standard of living of the child and the parties; the child care and homemaker contributions of each party, and other facts of this case. The trial court could consider the fact that defendant-Mother would incur greater expenses for the child if she had the means to do so.).

Bishop v. Bishop (Lawyers Weekly No. 010-020-22, 1 p.) (Per curiam) (Philip Berger Jr., J., not participating) Appealed from Wake County District Court (Anna Worley, J.) On appeal from the Court of Appeals. Jonathan McGirt for plaintiff; Michael Harrell for defendant. 2022NCSC-18

Criminal Practice False Pretenses – Probation Condition – No-Contact Order – Children’s Custodian The trial court properly exercised its substantial discretion in devising and imposing special conditions of probation that were sufficiently reasonable in their relationship to defendant’s rehabilitation. We affirm the Court of Appeals’ decision (Defendant was convicted of obtaining property by false pretenses after he pawned a ring belonging to his mother-in-law, who provided him and her daughter a place to live, and who also has custody of the couple’s three children. Although the mother-in-law had been allowing defendant and her daughter to visit their children in her home, she no longer wants defendant in her home, and the trial court ordered, as a condition of defendant’s probation, that he have no contact with her. Since the mother-in-law or her daughter can arrange a time and place for visitation; and since the no-contact provision is reasonably related to protection of the victim, defendant’s rehabilitation, and his compliance with his probation, the trial court did not abuse its discretion by imposing the no-contact provision as a special condition of defendant’s probation.).

22 / OPINION DIGESTS State v. Medlin (Lawyers Weekly No. 010-021-22, 2 pp.) (Per curiam) Appealed from Cabarrus County Superior Court (Anna Wagoner, J.) On writ of certiorari from the Court of Appeals. William Maddrey for the state; Sandra Payne Hagood for defendant. 2022-NCSC-25

Insurance Auto – Breach of Contract Claim – Damage Cause – Unfair Trade Practices Claim A divided panel of the Court of Appeals affirmed in part, reversed in part and remanded the trial court’s summary judgment order. We affirm the majority decision (Where the plaintiff-insured claims an unidentified vehicle backed into hers and drove away, but where the defendantinsurer claims the injury to plaintiff’s vehicle was caused by her own negligence when she hit a stationary object, there is an issue of fact as to whether plaintiff’s coverage was voided by a misrepresentation concerning the cause of the damage.)

Hope v. Integon National Insurance Co. (Lawyers Weekly No. 010-022-22, 1 p.) (Per curiam) Appealed from Sampson County Superior Court (Henry Stevens, J.) On appeal from the Court of Appeals.

Brenton Adams and Diana Devine for plaintiff; Rodney Guthrie and Jasmine Pitt for defendant. 2022NCSC-20

Criminal Practice Murder – Jury Instructions – Stand Your Ground – Character of Assault At his murder trial, defendant asked the trial court to instruct the jury that he was entitled to use deadly force to defend himself in his home “regardless of the character of the assault.” The trial court sufficiently informed the jury of this principle when it instructed that defendant had no duty to retreat, defendant was entitled to defend himself if he “believed it was necessary to kill [Damon Dry] ... to save [himself] from death or great bodily harm” and that his belief to that effect was reasonable in light of “the circumstances as they appeared to the defendant at the time.”

We affirm the Court of Appeals’ decision, which upheld defendant’s convictions for possession of a firearm by a felon and first-degree murder.

According to the trial court and the Court of Appeals, the fact that defendant fatally wounded Dry while possessing a firearm after having been convicted of a felony compelled the conclusion that the justifications afforded by G.S. §§ 14-51.2 and 1451.3 as reflected in N.C.P.I. – Crim.

308.10 were not available to him.

Although this conclusion may be inconsistent with § 14-51.2(g), which upholds the continued validity of the common law with respect to the exercise of one’s right to defend one’s habitation, as well as our decision in State v. McLymore, 2022-NCSC-12, we need not reconcile any such inconsistency or address the manner in which the disqualification provision contained in G.S. § 14-51.4(1) should be applied in this case given that the trial court included the substance of the instruction upon which defendant’s challenge to the Court of Appeals’ decision rests in the remainder

of its instructions to the jury.

Furthermore, although State v.

Francis, 252 N.C. 57 (1960), did use the expression “regardless of the character of the assault” in discussing the defendant’s right to defend himself, our use of that language was intended to make it clear that there was no distinction between a simple and a felonious assault in determining whether a defendant had a duty to retreat before defending himself in his own home.

Since the trial court in this case made no distinction between a simple and a felonious assault in its instructions to the jury concerning the extent to which defendant was entitled to exercise the right of self-defense without making an effort to retreat and did not tell the jury that defendant was not entitled to use a firearm or any other form of deadly force in the course of defending himself from Dry’s attack as long as he actually and reasonably believed that he needed to use deadly force to protect himself from death or great bodily injury, the trial court did not need to further clarify that defendant was entitled to exercise the right of selfdefense “regardless of the character of the assault.”

Even if the trial court erred, defendant has not shown prejudice.

The jury was told that defendant had no duty to retreat after having been attacked in his own home. Finally, the record contains more than sufficient evidence from which a reasonable jury could have determined that defendant used excessive force when he killed Dry. Defendant contends that the Court of Appeals erroneously upheld the trial court’s failure to afford him the benefit of a “complete self-defense instruction” by refusing to instruct the jury that he was “presumed to have held a reasonable fear of imminent death or serious bodily harm to himself” in light of the fact that he had been attacked in his own home. As the Court of Appeals correctly held, however, defendant failed to properly preserve his challenge to the trial court’s alleged instructional error for purposes of appellate review.

Defendant never asked the trial court to instruct the jury that he was presumed to have a reasonable fear of imminent death or great bodily injury as a result of the fact that he had been assaulted in his home. A request to be afforded the protections made available by §§ 14- 51.2 and 14-51.3 does not preserve his right to complain about the trial court’s failure to instruct the jury in accordance with every sentence or clause contained in those statutory provisions.

No error.

Dissent

(Hudson, J.): Because defendant was entitled to jury instructions that clearly established his right to selfdefense “regardless of the character of the assault,” the trial court prejudicially erred in ruling otherwise.

The trial court determined that defendant was not eligible for this instruction because: (1) G.S. § 1451.4(1), one of the statutes from which defendant’s requested jury instruction is derived, states that “[this] justification ... is not available to a person who ... was attempting to commit, committing, or escaping after the commission of a felony”; and (2) defendant, at the time of the shooting, was “committing” the felony of being a felon in possession of a firearm.

In the time since the Court of

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Appeals ruled on this case below, this court in McLymore explicitly overruled the holding in State v.

Crump, 259 N.C. App. 144 (2018), that the felony disqualifier within § 14-51.4(1) does not require a causal nexus. Rather, we held that § 1451.4(1) “requires the State to prove an immediate causal nexus between a defendant’s attempt to commit, commission of, or escape after the commission of a felony and the circumstances giving rise to the defendant’s perceived need to use force.”

Defendant’s requested jury instruction should have been given. I read Francis more broadly than the majority. Instructing a jury that a defendant has no duty to retreat, which the trial court functionally did here, is plainly not the same as instructing a jury that a defendant may use force of a character different from that used by an attacker in repelling an attack in his home, which it did not.

The trial court’s instruction virtually eliminated defendant’s right of self-defense since he used a gun in connection with defending himself against a simple assault.

This was prejudicial error. Because defendant admitted that he shot Dry, the only question for the jury to resolve here was whether defendant’s actions were justified.

By failing to give the defendant’s requested instruction, the trial court’s error bore on the only issue that the jury had to decide.

State v. Benner (Lawyers Weekly No. 010-023-22, 42 pp.) (Samuel Ervin, J.) (Robin Hudson, J., joined

by Anita Earls, J., dissenting) Appealed from Davidson County Superior Court (Kevin Bridges, J.) On discretionary review from the Court of Appeals. Joseph Hyde for the state; Gordon Widenhouse for defendant.

2022-NCSC-28

Criminal Practice Post-Conviction DNA Testing – Guilty Plea – First Impression – Materiality Nothing in the text of G.S. § 15A269 expressly precludes defendants who have pleaded guilty from seeking postconviction DNA testing. The General Assembly’s use of the terms “verdict” and “defendant’s defense” does not limit the statute’s application to defendants who are convicted after a trial.

We affirm the Court of Appeals’ holding that (1) defendants who plead guilty are not barred from seeking post-conviction DNA testing and (2) the defendant herein did not show that the DNA evidence he sought would be material to his defense.

The only issue before this court in State v. Sayre, 255 N.C. App. 215 (2020), aff’d per curiam, 371 N.C. 468 (2018), was whether the defendant had sufficiently alleged that the performance of postconviction DNA testing would be “material.” Sayre did not address, much less resolve, the issue of whether a defendant whose conviction stemmed from a guilty plea is entitled to seek and obtain postconviction DNA testing. As a result, the extent to which a plea of guilty operates as a categorial bar to postconviction DNA testing pursuant to § 15A-269 is a question of first impression for this court.

Nothing in the text of § 15A-269 expressly precludes defendants who have pleaded guilty from seeking postconviction DNA testing.

Although the presence of the term “verdict” in the relevant statutory language may suggest that the General Assembly did primarily have jury trials in mind at the time that it drafted § 15A-269, we are unable to understand the term “verdict” to operate as a limitation upon the reach of postconviction DNA testing given the manner in which the statute, considered as a whole, is written and the circumstances that led to its enactment.

Similarly, we are not persuaded that the term “defense” as used in § 15A-269(a)(1) should be limited to the specific arguments that the defendant advanced before the trial court prior to their conviction. The fact that § 269(a)(1) is couched in the present tense suggests a recognition on the part of the General Assembly that a defendant’s “defense” may evolve in light of newly available DNA evidence. As a result, the statutory reference to the defendant’s “defense” does not, without more, satisfy us that the General Assembly intended to limit the availability of postconviction DNA testing to defendants who were convicted at the conclusion of a contested trial on the issue of guilt or innocence.

Any argument that innocent people do not enter guilty pleas and that the General Assembly could not have intended to create a situation in which defendants were allowed to make conflicting sworn statements concerning their guilt or innocence also fails. Of the 2,997 documented cases since 1989 in which individuals who have been exonerated after having been wrongfully convicted, 672— or over 22 percent— involved guilty pleas, 6 with this number including 13 cases arising in North Carolina, eight of whom were exonerated on the basis of DNA testing. The available evidence clearly suggests that innocent people do, in fact, enter guilty pleas.

The Court of Appeals did not err in determining that a defendant who pleads guilty is not disqualified from seeking postconviction DNA testing pursuant to § 15A-269.

Materiality

The state’s principal witness consistently said she heard a commotion in an Amoco station and saw two men, one of whom was defendant, exit the station. Proof of third-party DNA on the shell casings and projectile found at the Amoco station would not be inconsistent with defendant’s participation in the killing of the victim, an Amoco station employee. The Court of Appeals did not err in finding that defendant had failed to show materiality.

Affirmed.

Concurrence

(Newby, C.J.): I would hold that a defendant who pleads guilty cannot prevail on a postconviction motion to test DNA evidence under § 15A-269.1 Therefore, I concur in the result.

When a defendant pleads guilty, no trial occurs, and thus no verdict is ever reached. Therefore, a defendant who pleads guilty can never meet the condition outlined in § 15A-269(b)(2).

Further, a defendant who enters a guilty plea cannot show that the relevant biological evidence “is material to [his] defense.” § 15A-269(a)(1). The phrase “material to the defendant’s defense” presupposes that the defendant making the motion presented a defense before the trial court. Since a sample of biological evidence cannot be material to a defense that never

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occurred, a defendant who did not present a defense before the trial court cannot meet the condition outlined in § 15A-269(a)(1).

Dissent

(Earls, J.): While I agree that defendants who plead guilty are not categorically ineligible for postconviction DNA testing under § 15A269, I cannot join the majority in its conclusion that this defendant has failed to demonstrate materiality.

A defendant must demonstrate that the evidence creates the possibility of an acquittal on a criminal charge, not that there is an insufficient evidentiary basis to convict.

The DNA evidence defendant seeks could provide evidentiary support for the reasonable determination that someone other than defendant was the shooter. The evidence would not conclusively establish defendant’s innocence, but that is not the burden he must carry at this stage. Instead, he must only demonstrate that with the DNA evidence he seeks there would have been a reasonable probability that he would not have pleaded guilty to seconddegree murder and would not have been convicted of the same had he proceeded to trial.

Given that the state’s case was not overwhelming, DNA testing could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.

Evidence which could support the inference that a defendant convicted of second-degree murder was not the shooter is material within the meaning of that statute.

State v. Alexander (Lawyers Weekly No. 010-024-22, 70 pp.)

(Samuel Ervin, J.) (Paul Newby, C.J., joined by Tamara Barringer, J., concurring in the result) (Anita Earls, J., concurring in part & dissenting in part) (Philip Berger Jr., J., not participating) Appealed from Warren County Superior Court (Henry Hight, J.) On discretionary review from the Court of Appeals. Kristin Uicker for the state; Anne Gomez for defendant; Julie Boyer, Kelly Dermody and Evan Ballan for amicus curiae. 2022-NCSC-26

Criminal Practice

Criminal Practice MAR – Newly Discovered Evidence – Due Diligence Having only heard intimations that William McCormick possessed information that might have benefited his client, defendant’s trial counsel exercised due diligence by hiring a private investigator to try to locate McCormick. Without knowing how McCormick would testify, due diligence did not require counsel to exercise other options, such as subpoenaing McCormick to testify at trial.

We reverse the Court of Appeals’ reversal of the superior court’s grant of defendant’s motion for appropriate relief.

Background

A taxicab driver was attacked, robbed and subsequently died from his injuries. An unrecorded confession was elicited from a 14-year-old defendant with intellectual deficiencies who was interviewed in a police station outside the presence of a parent or guardian. There was no physical evidence, and limited corroborating evidence, connecting defendant to the crime scene. Defendant’s first trial ended in a mistrial due to a hung jury, illustrating that the evidence of defendant’s guilt was not overwhelming.

At a second trial, defendant was convicted of first-degree murder.

Defendant later moved for appropriate relief based on newly discovered evidence: an affidavit from William McCormick, a childhood friend of defendant’s and the brother of Elliot McCormick, one of the juveniles defendant had implicated in his confession, stating that (1) on the night of the assault, William McCormick was at his mother’s house with defendant; (2) Robert Shaw, Norman Cox, and Antonio Bristow came to McCormick’s home “sweating and out of breath”; and (3) the next day, Shaw confessed to William McCormick that he, Cox, and Bristow had robbed and assaulted the victim.

William McCormick stated that he “was not interviewed by the police or any attorneys involved in ... [defendant’s] case.”

MAR Attempted Robbery – Subject Matter Jurisdiction – Indictment Allegations – Victims’ Identities Defendant argues that the attempted armed robbery indictment against him was invalid because it failed to give the names of the victims, instead describing them as the “employees of the Huddle House located at 1538 NC Highway 67, Jonesville, North Carolina.” However, defendant relies on caselaw from before the Criminal Procedure Act of 1975 was enacted. The indictment satisfies G.S. § 15A-924(a)(5), gives defendant sufficient notice to prepare a defense, and protects defendant from double jeopardy. As such, the indictment was valid.

We reverse the Court of Appeals’ ruling that the indictment was fatally defective.

State v. Oldroyd (Lawyers Weekly No. 010-025-22, 13 pp.) (Michael Morgan, J.) Appealed from Yadkin County Superior Court (Michael Duncan, J.) On appeal from the Court of Appeals. Ryan Park, Sarah Boyce and Heyward Earnhardt for the state; Emily Holmes Davis for defendant.

2022-NCSC-27\

In order to demonstrate that he was entitled to a new trial, defendant was required to establish that William McCormick’s recollection of Shaw’s confession was “probably true.”

There were some inconsistencies internal to William McCormick’s affidavit and discrepancies between his affidavit and subsequent testimony at the evidentiary hearing. But it was within the province of the MAR court to determine McCormick’s credibility. The Court of Appeals engaged in the prohibited exercises of reweighing evidence and making witness credibility determinations.

The Court of Appeals also held that the MAR court abused its discretion in granting defendant a new trial because defendant had failed to prove by a preponderance of the evidence that due diligence was used and proper means were employed to procure the testimony being offered in support of his MAR at trial.

The due diligence requirement does not demand that a defendant do everything imaginable to procure at trial the purportedly newly discovered evidence presented in a MAR. Neither defendant nor his trial coun-

sel knew that Shaw had confessed regarding his role in the murder to William McCormick; at most, counsel knew that his contacts “in the street” had identified William McCormick as someone who might possess information that could potentially benefit defendant. He had no knowledge of and no reason to know what that information was, or even whether it existed, at the time of trial.

Further, William McCormick was decidedly not “available” to defendant and his counsel; despite repeated efforts, defendant’s investigator was unable to locate William McCormick in order to interview him and ascertain what information McCormick possessed.

Nevertheless, the Court of Appeals concluded that defendant and his counsel “failed to exercise due diligence in procuring McCormick’s testimony.” The rationale for this conclusion was that counsel “could have secured McCormick’s attendance to testify at trial” by, for example, issuing a subpoena or requesting a material witness order. We disagree that counsel’s failure to issue a subpoena or request a material witness order means that the MAR court committed legal error or abused its discretion in determining that counsel had exercised due diligence.

Having only heard intimations that William McCormick possessed information that might have benefited his client—but having not been able to interview McCormick and having no insight into the substance of the information McCormick may or may not have possessed—it would not have been reasonably expected of counsel to subpoena William McCormick to testify at trial.

Similarly, it would not have been reasonably expected of counsel to submit an affidavit swearing that William McCormick “[possessed] information material to the determination of the proceeding,” given that he did not know what (if any) information McCormick possessed. G.S. § 15A-803(a).

Finally, given that counsel had already tried and failed to locate William McCormick on multiple occasions, it would not have been reasonably expected of counsel to request a recess or move for a continuance. On the basis of the information counsel possessed at the time of trial, his actions in obtaining funding to hire an investigator who repeatedly attempted to locate and interview William McCormick constituted due diligence.

Reversed.

Dissent

(Newby, C.J.): Defendant failed to take reasonable action to procure the evidence that he now deems “newly discovered.”

McCormick’s mother prevented defendant’s investigator from speaking with McCormick. Counsel then ceased his investigatory efforts when he realized that circumventing McCormick’s mother was “going to be difficult.” But difficulty in obtaining information does not make that information unavailable. Due diligence required more.

Counsel should have sought some form of relief from the trial court in an effort to speak to McCormick or should have further questioned other witnesses about the identity of the murderers.

The fact that McCormick had possibly exculpatory information was available to defendant in the present case. As such, based upon our prior

decisions, McCormick’s testimony at the MAR hearing does not constitute newly discovered evidence. Nonetheless, the majority now lowers the due diligence bar, allowing a defendant to decline to interview a witness he believed to be material and to later file a MAR asserting that the witness’s testimony is newly discovered.

Since defendant failed to pursue the available information, he is unable to establish a necessary element of his MAR. State v. Reid (Lawyers Weekly No. 010-026-22, 41 pp.) (Anita Earls, J.) (Paul Newby, C.J., joined by Tamara Barringer, J., dissenting) (Philip Berger, J., not participating) Appealed from Lee County Superior Court (Winston Gilchrist, J.) On discretionary review from the Court of Appeals. Mary Carla Babb for the state; Lauren Miller for defendant.

2022-NCSC-29

Constitutional Contract – Labor & Employment – Public Employees – Health Insurance Although the statutes enacting the State Health Plan did not themselves establish a contract requiring the state to provide a premiumfree preferred provider organization health insurance plan which allocated 80 percent of the costs of health care services to the insurer and 20 percent to the insured (the 80/20 PPO Plan), the plaintiff-Retirees’ undisputed evidence establishes that the 80/20 PPO Plan an important part of state employees’ acceptance of and continuation in employment with the state. The Retirees’ undisputed evidence also shows their reasonable reliance on the state’s representations.

We reverse the Court of Appeals’ reversal of the trial court’s ruling that the Retirees possessed a vested right protected under the Contracts Clause of the U.S. Constitution.

However, genuine issues of material fact make summary judgment inappropriate on the questions of whether the statute eliminating the noncontributory 80/20 PPO Plan option (the 2011 Act) worked a substantial impairment of the Retirees’ vested rights and whether any such impairment was reasonable and necessary.

If a statute provides benefits in the form of immediate compensation deferred until retirement, then the employee’s right to the benefit vests when the contract is formed. By contrast, if a statute provides benefits for which an employee only becomes eligible after certain conditions are met, then the employee’s right to the benefit vests when he or she satisfies the relevant eligibility criteria.

The undisputed evidence establishes that, as the trial court found, “the [State] offered [the Retirees] certain premium-free health insurance benefits in their retirement if they worked for the State ... for a requisite period of time” and that the “promise” of this benefit was “part of the overall compensation package” state employees reasonably expected to receive in return for their services.

Undisputed evidence illustrates that all parties understood the state to have undertaken an obligation to provide continued premium-free health insurance coverage to retirees who had satisfied the statutory eligibility requirements. While this evidence does not prove that the General Assembly acted with an express intent to contract, it demonstrates

24 / OPINION DIGESTS the reasonableness of the Retirees’ belief that lifetime eligibility for enrollment in a premium-free health insurance plan was an inducement to employment and a part of their overall compensation package.

The legislative history, including the General Assembly’s frequent use of the terms “vested” and “obligation” in reference to its future payment of retirees’ health insurance premiums, is further support for the proposition that the Retirees have demonstrated that they and the state shared a common understanding of what this benefit represented.

In press releases, benefits booklets, and training materials, the state conveyed to its employees that, after completing the applicable service eligibility requirements, they would be entitled to health insurance coverage “for life.”

Once state employees met the applicable statutory eligibility requirements and became eligible to enroll in a noncontributory health insurance plan, their right vested to enroll in a plan offering equivalent or greater value to the one offered to them at the time the contract was formed. Accordingly, we overrule the Court of Appeals’ determination that the Retirees had failed to prove the existence of a vested right subject to protection by the Contracts Clause.

Substantial Impairment

Recognizing that the Retirees’ vested rights have a substantive component does not resolve whether those rights were substantially impaired. To answer that question, the Retirees needed to (1) demonstrate a method for objectively determining the value of a health insurance plan, one that accounted for the numerous variables influencing the “value” of a health insurance plan to a plan member; (2) establish the baseline value of the health insurance plan offered to each Retiree when his or her right to retirement health insurance benefits vested; and (3) show that the plans currently offered by the State are substantially less valuable than those baseline plans. Given the conflicts in the evidence, the trial court erred in resolving these issues on summary judgment.

If, on remand, the trial court determines that the 2011 Act substantially impaired the Retirees’ contractual rights, the final question is whether the impairment was “a reasonable and necessary means of serving a legitimate public purpose.”

As to this question, there are also genuine disputes about material facts which require further development at trial. In particular, there are the State’s asserted interest in avoiding an “estimated thirty-five billion dollars in unfunded future outlays” and the Retirees’ rejoinder that “there were a multitude of methods to stabilize the State Health Plan without impairing vested rights.”

Finally, on remand, the trial court must reassess the Retirees’ Law of the Land Clause claim in light of its resolution of the parties’ dispute regarding the value of the noncontributory plans offered by the state to Retirees at various times.

Affirmed in part, reversed in part and remanded.

Dissent

(Barringer, J.): Because the evidence in the record, when viewed in the light most favorable to the state, creates a genuine issue of material fact as to whether any contractual obligation is present, we should also

remand that issue to the trial court for resolution by the fact-finder.

Lake v. State Health Plan for Teachers & State Employees (Lawyers Weekly No. 010-027-22, 61 pp.) (Anita Earls, J.) (Tamara Barringer, J., joined by Philip Berger, J., concurring in part & dissenting in part) (Paul Newby, C.J., not participating) Appealed from Gaston County Superior Court (Edwin Wilson, J.) On discretionary review from the Court of Appeals. Michael Carpenter, Christopher Whelchel, Marcus Carpenter, Marshall Walker, Sam McGee, Gary Jackson and Bryan Boyd for plaintiffs; Ryan Park and Marc Bernstein for defendants; Michael McGuinness, Verlyn Chesson Porte, Vernon Sumwalt and Ali Naini for amici curiae. 2022-NCSC22

Labor & Employment Unemployment Benefits – Good Cause – Not Attributable to Employer Even though the petitioner-employee left his job for good cause— knee pain exacerbated by his job duties—since the cause was not attributable to the employer, petitioner is not entitled to unemployment benefits.

We affirm the Court of Appeals’ decision, which upheld the denial of benefits.

Background

After petitioner suffered a knee injury at work, his employer underwent a merger, and petitioner’s job duties expanded to include more security system installations in addition to the less strenuous service calls. Petitioner kept his employer apprised of his health situation, requested an administrative post or to be assigned only service calls, and took Family and Medical Leave Act leave for a time.

The employer offered petitioner an administrative post in South Carolina or Tennessee, but petitioner declined to relocate. Petitioner’s manager denied petitioner’s request to be assigned only to service calls because he needed to keep a fair balance of work distribution among all of the service technicians.

Petitioner resigned and applied for unemployment benefits. The Employment Security Division found petitioner had left his job for good cause but that the cause was not attributable to the employer. Accordingly, petitioner’s application was denied.

Discussion

“An individual does not have a right to benefits and is disqualified from receiving benefits if the Division determines that the individual left work for a reason other than good cause attributable to the employer.”

G.S. § 96-14.5(a).

Since the Division conceded on appeal that petitioner had good cause to leave work, the only question before us is whether the findings of fact support the conclusion of law that petitioner’s leaving work was not attributable to his employer.

Admittedly, the employer modified the allocation of installation jobs to service technicians two years before petitioner left work, and petitioner had difficulty performing installations because of pain in his knees. However, the findings of fact do not support the causal link required by § 96.14.5(a) between the employer’s action (change in alloca-

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 28, 2022

tion of installation work) or inaction (not ceding to petitioner’s request) and petitioner’s resignation.

Although installations involved more physical work, such as more drilling, climbing, and crawling, than a service call, petitioner’s “doctor requested that [petitioner] not stand or walk for prolonged periods.” There is no finding that the installations increased the amount of prolonged standing and walking by petitioner relative to service calls. Thus, we cannot conclude that the employer’s action caused petitioner’s leaving.

In response to petitioner’s efforts to maintain the employment relationship, the employer also made efforts to preserve the relationship.

Petitioner’s manager “made attempts [after petitioner’s request] to not dispatch [petitioner] on the most strenuous or large installations” and “would try to ensure that [petitioner] had another service technician available to assist him.” The employer also “had administrative positions in Spartanburg, South Carolina and Knoxville, Tennessee,” but not in North Carolina.

Ultimately, petitioner was unwilling to relocate from North Carolina for an administrative position and did not take additional Family and Medical Leave to treat his knees.

The employer made available to petitioner an administrative position as petitioner specifically requested.

The employer offered positions in all the locales where the employer had such positions. The employer, thus, acted.

Petitioner still left, but his employer’s inaction did not cause petitioner’s leaving. Petitioner had made other requests to his employer, but an employer need not cede to every request of an individual employed by the employer to avoid having his inaction deemed the cause of an individual’s leaving.

Affirmed.

Dissent

(Earls, J.): The majority imposes a newly crafted “efforts to preserve the employment relationship” test and infers from the absence of factual findings that in fact, petitioner did not have good cause to leave his employment because he refused to leave North Carolina for Spartanburg, South Carolina, or Knoxville, Tennessee, and did not take additional Family and Medical Leave. These are all, in essence, arguments that he did not have good cause to leave his employment.

An employee does not leave work voluntarily when the termination is caused by events beyond the employee’s control or when the acts of the employer caused the termination.

Requiring that petitioner move out of state to maintain employment that does not further damage his health is holding him responsible for matters beyond his control.

Petitioner left his job for good cause, namely, personal health or medical reasons, in circumstances in which his employer did have work that he could have performed, specifically service calls rather than installation work, but chose not to give him the option of doing that work.

Petitioner’s good cause for leaving work was attributable to the employer, and he should not be disqualified from receiving unemployment benefits.

In re Lennane (Lawyers Weekly No. 010-028-22, 29 pp.) (Tamara Barringer, J.) (Anita Earls, J., joined by Robin Hudson & Samuel Ervin, JJ.,

dissenting) Appealed from Haywood County Superior Court (Robert Bell, J.) Joseph Franklin Chilton, Cindy Patton, John Keller and Celia Pistolis for petitioner; Elias Admassu, Glen Peterson and Sharon Johnston for respondent. 2022-NCSC-21

Civil Practice Personal Jurisdiction – Corporate – Tort/Negligence – Interference with Contract The Florida defendants were very much involved in the affairs of the N.C. defendant-corporation. For example, they negotiated a reduced rate of debt owed to the Florida limited partnership (LP) by the N.C. corporation, terminated plaintiff’s employment with the corporation (while defendant Irish, acting as manager of the Florida LLC, was physically present in North Carolina), and then increased the interest rate on debt owed by the corporation to the LP. Defendants could reasonably anticipate being haled into court in North Carolina to answer plaintiff’s claims that defendants violated his employment agreement.

We affirm the business court’s denial of defendants’ motion to dismiss for lack of personal jurisdiction. We dismiss plaintiff’s appeal of the business court’s dismissal, without prejudice, of his claims for a declaratory judgment and for tortious interference with contract. We also deny his petition for writ of certiorari.

When he entered into his employment contract with the corporation, plaintiff also entered into several other agreements which pertained to his potential purchase of stock. Whether any future act by defendants would constitute a breach of these other agreements is dependent on whether plaintiff’s employment contract was terminated for cause. With that issue still pending before the business court, this court cannot speculate as to what rights plaintiff has under the stock-purchase agreements. Plaintiff has failed to demonstrate that his petition has merit or that the trial court erred in dismissing his claim for declaratory judgment.

As to plaintiff’s claim of tortious interference with contract, defendants are non-outsiders to the contract; accordingly, plaintiff must allege malice. Plaintiff’s conclusory allegations are insufficient to comply with the specific pleading requirements of a tortious interference claim.

Dissent

(Earls, J.): I believe our interest in judicial economy justifies issuing a writ of certiorari. On the merits, I would affirm the trial court’s dismissal of plaintiff’s declaratory judgment claim against but reverse the court’s dismissal of his tortious interference claim.

The allegations set out in the section of the complaint dedicated to the tortious interference claim are indeed conclusory. However, the complaint contains a lengthy background section in which plaintiff alleges various facts common to all subsequent legal claims. That section sufficiently alleges that defendants were acting in their own financial interests as the North Carolina corporation’s creditors by firing plaintiff to get around the interest rate cap on the corporation’s debt that plaintiff had negotiated as part of his employment contract.

Button v. Level Four Orthot-

OPINION DIGESTS / 25

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 28, 2022

ics & Prosthetics, Inc. (Lawyers Weekly No. 010-029-22, 27 pp.) (Philip Berger, J.) Appealed from Forsyth County Superior Court (Michael Robinson, J.) Alan Duncan, Stephen Russell and Tyler Nullmeyer for plaintiff; Brian Church and David Wright for defendants. 2022-NCSC19

N.C. COURT OF APPEALS

Tort/Negligence STCA – Damages – Prisons & Jails – Inmate’s Law Books It is undisputed that defendant negligently destroyed ten law books that the plaintiff-inmate was using to research his defense, yet the Industrial Commission’s damages award compensated plaintiff only for the loss of the use of the books, not for the value of the destroyed books themselves.

Though the Commission has discretion to determine the amount of the award, the Commission erred by not making any findings of fact or conclusions of law pertaining to the actual value of the destroyed books.

We vacate the award and remand for the Commission to reconsider its award and the appropriate measure of damages, including the value of the books destroyed through defendant’s negligence.

Brewton v. North Carolina Department of Public Safety (Lawyers Weekly No. 011-056-22, 5 pp.)

(Chris Dillon, J.) Appealed from the Industrial Commission. Carl Brewton, pro se; Elizabeth Jenkins for defendant. 2022-NCCOA-156

Administrative Driver’s License – Revocation Proceeding – First Impression – Hearing Officer At the hearing held to decide whether petitioner’s driver’s license would be revoked, there was no attorney putting on the Division of Motor Vehicles’ case; in such cases, the hearing officer considers the evidence in the DMV file, issues subpoenas when necessary, and questions the driver and other witnesses. In the absence of any indication of bias on the part of the hearing officer, this procedure did not violate petitioner’s due process right to an impartial tribunal.

We reverse the superior court’s order, which overturned the revocation of petitioner’s driving privileges.

The superior court found that petitioner’s due process rights were violated because the hearing officer is a DMV employee and because she essentially acted, not only as factfinder, but also as the prosecutor.

Neither party cited, nor has our research uncovered a North Carolina case on point. We note, though, that the Fourth Circuit affirmed the decision of the Western District of North Carolina concluding that the hearing procedure prescribed in G.S. § 20-16.2 does not violate the driver’s due process rights. Montgomery v. N.C. Dep’t of Motor Vehicles, 455 F. Supp. 338 (W.D.N.C. 1978), aff’d, 599 F.2d 1048 (4th Cir. 1979).

We conclude that the fact that a hearing officer in a DMV hearing is a DMV employee does not violate a driver’s due process rights per se.

There is nothing to indicate that the DMV hearing officer had any spe-

cial knowledge or connection to petitioner’s case that would indicate a lack of impartiality. There is nothing in the record for us to conclude that the DMV hearing officer acting in accordance with § 20-16.2 presents such a hazard of arbitrary decision making that it should be held violative of due process of law.

The lack of an attorney present DMV’s case and the hearing officer’s questioning of witnesses does not violate a driver’s due process rights where there is nothing to indicate that the hearing officer was doing anything more than attempting to elicit the truth. We have made similar holdings in commitment proceedings where the state is not represented by counsel.

It is not a per se constitutional violation for a trial court to exercise its right to call or question witnesses, even where the witness’ answer provides the sole proof of an element which needs to be proved. The fact that the hearing officer is a DMV employee and plays a role in drawing out the truth does not render that officer biased any more than a judge, who has the same employer as the prosecutor (the State of North Carolina), could be deemed biased for merely questioning witnesses.

Reversed.

Edwards v. Jessup (Lawyers Weekly No. 011-057-22, 8 pp.) (Chris Dillon, J.) Appealed from Union County Superior Court (Jeffery Carpenter, J.) Paul Tharp for petitioner; Christopher Brooks for respondent.

2022-NCCOA-157

Constitutional Fines & Forfeitures Clause – Red Light Cameras – Schools & School Boards – Municipal – Collection & Enforcement Costs Fines collected pursuant to the City of Greenville’s red light camera program are paid to the school board, but the city violates N.C. Const. art.

IX, § 7 and G.S. § 115C-437 when it charges the school board for enforcement costs and when it charges the school board for costs exceeding ten percent of the fines.

We reverse the superior court’s dismissal of plaintiffs’ claim under the Fines and Forfeitures Clause, and we remand for entry of summary judgment in plaintiffs’ favor. Otherwise, we affirm the trial court’s orders in favor of defendants. We dismiss plaintiff’s assignment of error as to an expert affidavit; this issue was not preserved for appellate review.

The Fines and Forfeitures Clause of our state constitution requires that “the clear proceeds of all penalties and forfeitures and of all fines collected in the several counties for any breach of the penal laws of the State ... shall be faithfully appropriated and used exclusively for maintaining free public schools.” N.C. Const. art. IX, § 7. By “clear proceeds” is meant the total sum, less only the sheriff’s fees for collection, when the fine and costs are collected in full. Costs of collection do not include the costs associated with enforcing the ordinance but are limited to the administrative costs of collecting the funds.

G.S. § 115C-437 requires that “the full amount of all penalties, forfeitures or fines collected under authority conferred by the State, diminished only by the costs of collection, not to exceed ten percent of the amount collected.”

Greenville contracts with the Ari-

zona firm American Traffic Solutions (ATS) for the installation, maintenance and management of the city’s red light camera program.

After program expenses, including fees invoiced by ATS, the school board ultimately receives only 71.66 percent of the total amount of fines and fees collected by Greenville. Under § 115C-437, the school board must receive, at a minimum, 90 percent.

Greenville invoices the school board for the salary and benefits of a law enforcement officer as well as for all fees invoiced to Greenville by ATS. The salary and benefits of law enforcement officers are enforcement costs and are thus not deductible from “clear proceeds.” Also, the contract between ATS and Greenville requires that Greenville pay ATS $31.85 in fees for every $100 paid citation, in addition to other fees. Even assuming that the entirety of the $31.85 fee was for collection costs, Greenville is only permitted to deduct $10 from every $100 citation to offset the costs of collection.

Although Greenville initially forwards the entire $100 per citation to the school board and then collects its expenses at a later date, this does not comply with the constitutional mandate that the clear proceeds of such fines be “faithfully appropriated” to the public schools. Moreover, by stating that the clear proceeds are to “remain in the several counties,” the framers clearly did not intend for $31.85 of every $100 paid fine go to private companies such as ATS, a forprofit corporation in Arizona.

Plaintiffs are entitled to summary judgment on their claim under the Fines and Forfeitures Clause.

Other Issues

Even though defendants informed plaintiff Fearrington that he should have sought a declaratory judgment rather than the petition for judicial review that he (correctly) filed after he lost at the city’s administrative hearing, the consent order entered by the superior court—concluding that Fearrington had “fully exhausted his administrative remedies”— functioned as the exhaustion of his administrative remedies. We reject defendants’ argument that plaintiffs’ claims should be dismissed for failure to exhaust administrative remedies.

We also reject defendants’ challenge to plaintiffs’ standing. Not only were plaintiffs both issued citations and found liable for a $100 fine, but they both also alleged that they were taxpayers of Pitt County. There is no serious question that a taxpayer has an equitable right to sue to prevent

an illegal disposition of the moneys of a county.

Even if defendants violated G.S. Chapter 89C by using red light camera plans drawn by unlicensed engineers, Chapter 89C does not contemplate or provide a private cause of action for violations of its provisions.

Although a “Notice of Determination” found Fearrington “liable” because he had “no defense”—despite the fact that Fearrington had submitted that the red-light program violated substantive dues process as well as the Fines and Forfeitures Clause—municipal hearing officers do not have jurisdiction to decide constitutional issues. The superior court decides constitutional questions de novo. The procedures in this case protected plaintiffs’ procedural due process rights.

Plaintiffs argue that the red-light program infringes on their fundamental right to travel. We disagree.

So long as laws relating to the rules of the road are reasonably adapted to the attainment of the government’s interest in public safety, they will not be disturbed upon review by the courts.

Plaintiffs’ expert noted that plaintiffs entered the intersection in question within 0.4 seconds of the light turning red, stating that “such a quick time is discernable only by computer-triggered cameras, not by human perception.” In his opinion, plaintiffs “had no reason to know they were running a red light.”

Developments in technology will continue to present challenging problems with which policymakers must contend. This court, however, does not sit to make policy determinations.

A citizen’s best defense to what he sees as incompetent or corrupt policy judgments is to appeal to his fellow citizens and hold his government to account at the ballot box.

Dismissed in part; affirmed in part; reversed and remanded in part.

Fearrington v. City of Greenville (Lawyers Weekly No. 011-05822, 32 pp.) (Jefferson Griffin, J.) Appealed from Pitt County Superior Court (Jeffery Foster, J.) Daniel Gibson and Paul Stam for plaintiffs; Dan Hartzog, Robert King, Jill Wilson and Elizabeth Troutman for defendants.

2022-NCCOA-158

Tort/Negligence Wrongful Death – Public Official Immunity – Pedestrian Death – Police Cruiser After a police officer, while driving

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26 / OPINION DIGESTS his cruiser, struck and killed a pedestrian, the officer is entitled to public official immunity because plaintiff’s evidence that the officer looked at his computer and twice moved out of his lane of traffic was insufficient to show gross negligence.

We reverse the trial court’s denial of the officer’s motion for summary judgment.

Facts

The defendant-police officer was responding to a domestic violence call at night. The stretch of road in question was straight, flat, and well lit, and the weather was clear. The officer was traveling at a rate of 58 miles per hour in a 45-m.p.h. zone, but he did not activate his blue lights or siren.

Plaintiff’s decedent crossed the road on foot. In the moments before the cruiser struck the pedestrian, the officer’s body camera showed that he looked at and touched his computer.

The cruiser also moved outside its lane of travel twice. The cruiser was traveling at 53 mph when it struck and killed the pedestrian.

Public Official Immunity

Public official immunity serves to protect officials from individual liability for mere negligence.

Where the officer was responding to a domestic violence incident involving a firearm, his reason for driving at a speed above the speed limit was valid and lawful.

Although the officer’s vehicle slightly deviated from its lane of travel twice, there is no evidence he lost control of the vehicle. Less than two minutes elapsed from the time the officer was dispatched to the time of the accident.

Even if the officer violated police department policy by speeding without using his lights or sirens, the officer’s conduct did not rise to the level of gross negligence.

The officer’s actions were acts of discretion which may have been negligent but were not grossly negligent.

Reversed.

Dissent

(Jackson, J.): The question of whether the officer was grossly negligent should be decided by a jury.

Driving and watching a screen at the same time is dangerous. The officer’s body cam footage shows that he was driving with one hand on the steering wheel and the other on his laptop for 18 of the 23 seconds before he collided with the pedestrian, and he periodically glanced at his computer screen during this timeframe. The officer also committed at least two lane violations in the moments leading up to the accident, and the lane violations appear to coincide with the officer looking at his computer.

Five seconds before the collision, the officer placed his second hand on the steering wheel, but three seconds before the collision, he leaned distinctively towards his computer.

Enormous floodlights from a car dealership lit the area, and the dealership’s security footage shows the pedestrian crossing the road while using a cane. He successfully crossed five lanes of traffic before he was hit by the officer. The pedestrian stopped at the median and looked both ways before crossing the side of the road where he was hit by the officer.

From the dealership, body cam and cruiser camera footage, the officer did not appear to brake at all before hitting the pedestrian, nor did he appear to attempt to avoid hitting the pedestrian. In the body cam footage after

the collision, the officer can be heard to say, “I looked over, and…” but then the audio cuts out. In a subsequent statement, the officer could not recall what his next words were after “and.”

As the majority notes, the officer was speeding without activating his blue lights and sirens, in violation of department policy. Finally, the accident occurred on the officer’s first night shift and his first day working alone.

There is a genuine issue of material fact regarding the officer’s gross negligence.

Estate of Graham v. Lambert (Lawyers Weekly No. 011-059-22, 22 pp.) (Fred Gore, J.) (Darren Jackson, J., dissenting) Appealed from Cumberland County Superior Court (Mary Ann Tally, J.) Kevin Vidunas for plaintiff; Steven Bader for defendants. 2022-NCCOA-161

Domestic Relations Settlement Agreement – Life Insurance Proceeds – Children’s Trust In a mediated settlement agreement, the now-deceased Wife and the defendant-Husband agreed to maintain life insurance policies on themselves—$1 million on Wife and $2 million on Husband, naming each other as beneficiaries—and to set up trusts for their children “so that the children can receive any insurance proceeds in lieu of the other party being named the beneficiary.” The agreement could be read either as Husband proposes— requiring Wife’s $1 million policy to name him as beneficiary and allowing the children’s trust to be named as beneficiary of other policies—or as the plaintiff-trustee/personal representative proposes, allowing Wife to change the beneficiary of her $1 million policy to the trust once the trust was set up. The language of the agreement is ambiguous, and neither party was entitled to summary judgment.

We reverse the trial court’s grant of summary judgment for plaintiff.

Dissent

(Hampson, J.): The support the provisions at issue unambiguously provide for the parties’ obligations for college expenses of their minor children secured by life insurance policies purchased with the other party as the beneficiary with the option of a trust set up for the benefit of the children to be named the beneficiary in lieu of the other party. Therefore, by the unambiguous language of the agreement, Wife was permitted to name the trust she set up for the benefit of the children as the beneficiary of the insurance policies she maintained to secure her college expense obligations.

Consequently, the trust is the proper beneficiary of the insurance proceeds.

Accordingly, summary judgment was properly granted to plaintiff and should be affirmed.

Galloway v. Snell (Lawyers Weekly No. 011-060-22, 22 pp.) (Allegra Collins, J.) (Toby Hampson, J., dissenting) Appealed from Wake County Superior Court (Graham Shirley, J.) Gregory Connor for plaintiff; Bettie Kelley Sousa for defendant. 2022-NCCOA-159

Trusts & Estates Will Caveat – Testamentary Capacity – Undue Influence – New Estate Plan Although the testator’s caretak-

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 28, 2022

ers—new beneficiaries under his revised will—were bequeathed only $7,000 apiece from a $2 million estate, the caveator nevertheless forecasted evidence that, at the time his revised will and trusts were executed, the testator was confused and unsure about who was managing his finances, what real property he owned, and who were the beneficiaries of his will and trusts. The trial court should not have granted summary judgment for defendants on the issue of testamentary capacity.

We reverse the trial court’s orders granting summary for defendants on the issue of testamentary capacity, directing a verdict for defendants on the issue of undue influence, and excluding the testimony of Bill Godwin, and we remand. We vacate the trial court’s order holding that plaintiff’s claims lacked substantial merit.

On the issue of undue influence, plaintiff’s evidence asserted factual issues concerning the testator’s physical and mental weakness around the time of the execution of his 9 August 2017 revised estate plan; the caregivers’ status as propounders; and, the refusal of the caregivers to allow plaintiff and the testator’s other family members to visit and see the testator without supervision. No evidence tends to show plaintiff ever communicated any threats or intent to harm the testator, yet he twice sought domestic violence protective orders against her while he was in the caretakers’ care. Plaintiff acted in conjunction with her sister, first cousin, and other family members to alert the testator to non-family members and employees potentially taking advantage of him and his assets.

In addition, medical personnel and employees of financial institutions observed the testator’s unusual behaviors and actions and, on their own initiative, alerted family members and law enforcement to questionable activities and expenses by non-family caregivers and employees who were related to each other, who had accompanied the testator, managed his daily schedule, and overtly influenced his activities. These questionable actions and activities by caregivers were shared with the testator’s fiduciaries, who assisted and facilitated these activities, in derogations of the warnings and concerns of medical personnel, bank employees, the testator’s children, a son-in-law, and the testator’s nephew.

Plaintiff presented more than a scintilla of evidence to preclude the trial court entering a directed verdict for defendants.

Plaintiff asserts the trial court erred in excluding the testimony of the testator’s nephew, Bill Godwin, specifically his statement that the testator said he wanted his “[real] property to go to [plaintiff].”

“It has been generally held that declarations, oral or written, by the deceased may be shown in evidence upon the trial of an issue involving his mental capacity, whether such declarations were made before, at or after the date on which it is contended that the deceased was of unsound mind.” In re Will of Brown, 194 N.C. 583, 140 S.E.2d 192 (1927).

Bill Godwin, who was never a beneficiary under any iteration of the testator’s wills or trusts, heard the testator’s purported statement five months after the testamentary documents at issue were executed. The trial court erred in excluding Godwin’s testimony.

Reversed in part, vacated in part, and remanded.

In re Herman Earl Godwin Revocable Trust (Godwin v. Harvell) (Lawyers Weekly No. 011-06122, 25 pp.) (John Tyson, J.) Appealed from Carteret County Superior Court (Paul Quinn, Joshua Willey & Paul Quinn, JJ.) Jesse Schaefer and Elizabeth Arias for plaintiff; Wesley Collins, Samuel Morris-Bloom and David Creech for defendant.

2022-NCCOA-160

Domestic Relations Parent & Child – Neglect & Dependency Adjudication – 5th Amendment Invocation – Drug Use Although there was no direct evidence that the children’s mother used drugs in their presence or while she was supervising them, there was evidence that her behavior adversely affected the children. In addition, since the mother invoked her Fifth Amendment right not to answer questions regarding her use of illegal drugs, the trial court could infer that her answers would have been damaging to her claims that she did not have any real problem with drugs.

Nevertheless, the primary evidence offered to support the finding that the respondent-Father’s children, “Kenneth” and “Malcolm,” lived in an injurious environment was that the mother had kicked Father’s autistic stepson, “Zeke,” out of the residence. There was no evidence that either Kenneth or Malcolm had been kicked out or that the incident involving Zeke had any impact on his younger brothers. The trial court’s findings of fact do not include sufficient detail for this court to review its finding that Kenneth and Malcolm were affected by improper supervision or that an injurious environment had been created for them.

We vacate the order adjudicating Kenneth and Malcolm as neglected and dependent, and we remand for further findings.

In re K.W. (Lawyers Weekly No. 011-062-22, 15 pp.) (Fred Gore, J.) Appealed from Onslow County District Court (Sarah Seaton, J.) Leslie Rawls for appellant; Richard Penley for appellee; Daniel Heyman for guardian ad litem. 2022-NCCOA-162

Constitutional Red Light Camera Program – Local Laws – ‘Relating to Health’ – Funding Statute After being assessed a civil penalty for running a red light in Greenville, plaintiff brought a challenge under our state constitution’s prohibition against “local” laws “relating to health…” N.C. Const. art. II, § 24(1)(a). However, plaintiff’s challenge was brought, not against the statute authorizing Greenville to institute a red-light camera program, but instead against a law permitting Greenville to enter into a contract to lease or buy a red-light camera system. Since the challenged statute has, at most, an incidental connection to health, it is not sufficiently related to health to violate the constitution’s local laws prohibition.

We affirm the three-judge panel’s determination that the challenged statute is not unconstitutional.

Vaitovas v. City of Greenville (Lawyers Weekly No. 011-063-22, 11 pp.) (Richard Dietz, J.) Appealed from Wake County Superior Court (Richard Gottlieb, William Coward

OPINION DIGESTS / 27

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 28, 2022

& Imelda Pate, JJ.) Daniel Gibson and Paul Stam for plaintiff; Robert King, Jill Wilson, Elizabeth Troutman and Ryan Park for defendants.

2022-NCCOA-169

Criminal Practice Probation Revocation – Drug Possession – Constructive Possession – Car Passenger The defendant-probationer was a passenger in a car that was stopped for careless and reckless driving.

Defendant’s excessive movements prompted an officer to remove him from the passenger seat; defendant appeared impaired; and a subsequent search of the vehicle revealed a pill bottle containing Xanax, Oxycodone and Clonazepam in the glove box located directly in front of the passenger seat. The state presented competent evidence that defendant violated his probation by possessing Schedule II and Schedule IV substances.

We affirm the revocation of defendant’s probation.

Since the vehicle in which defendant was riding belonged to the grandmother of the driver, there was not substantial evidence to support the trial court’s finding that defendant willfully maintained a vehicle for the sale of a controlled substance, but this error was not prejudicial.

Defendant’s possession of controlled substances was sufficient to support the trial court’s revocation of his probation.

Dissent

(Hampson, J.): First, defendant was not charged with possession of the marijuana found in the car, but the state hinged much of its case on the marijuana. And the trial court did not specifically identify what offenses it found defendant had committed in violation of his probation.

As to the Schedule II and IV substances, the state failed to prove defendant constructively possessed the pills found in a bottle in the glove box of a car in which he was merely a passenger. There was no evidence that defendant’s “excessive moving” had any connection to the pill bottle or was an attempt to conceal the substances. Nor was there evidence that defendant’s impairment was the result of ingesting Schedule II or IV substances.

Because the evidence of defendant’s “constructive possession” of Schedule II or IV substances is nothing more than speculative, there is

no competent evidence to support a finding that defendant committed the offenses of possession of Schedule II and Schedule IV substances.

State v. Bradley (Lawyers Weekly No. 011-064-22, 22 pp.) (April Wood, J.) Appealed from Moore County Superior Court (James Webb, J.) Ebony Pittman for the state; Stephen Driggers for defendant. 2022-NCCOA-163

Criminal Practice Sentencing – Probation – 24 Months – Findings Required Since defendant was sentenced to community punishment, G.S. § 15A1343.2(d)(1) required the trial court to make specific findings that a probationary period of longer than 18 months was necessary when the trial court set the probationary period at 24 months.

We vacate the judgment below and remand for the reduction of defendant’s probation to a length of time authorized by § 15A-1343.2(d) (1) or entry of specific findings as to why a longer period of probation was necessary.

State v. Porter (Lawyers Weekly No. 011-065-22, 4 pp.) (Hunter Murphy, J.) Appealed from Cumberland County Superior Court (Gale Adams, J.) Carolyn McLain for the state; Richard Croutharmel for defendant.

2022-NCCOA-166

Criminal Practice Murder – GPS Data – Opportunity & Capability Even though GPS data collected by the Department of Public Safety is privileged, the privilege belongs to DPS, and DPS waived that privilege by releasing data to law enforcement as to where defendant traveled on the date of the victim’s murder.

We find no error in defendant’s convictions of first-degree murder, possession of a firearm by a felon, and driving while impaired.

Defendant threatened his family, and a warrant was issued for his arrest. Law enforcement officers stopped defendant in his pickup truck, in which they found bullets and blood stains. The next day, a victim was found fatally shot in his nearby home.

GPS Data

For multiple reasons, we reject defendant’s argument that the trial

court erred in admitting GPS data from his ankle monitor. First, defendant moved to suppress pursuant to G.S. § 15A-974 any evidence related to the search warrant seeking defendant’s GPS data obtained from the monitoring device he was wearing. Under § 15A-974(a)(2), evidence must be suppressed if “it is obtained as a result of a substantial violation of the provisions of [Chapter 15A].” Thus, § 15A-974(a)(2) does not provide a mechanism by which defendant could allege evidence was obtained as a result of a substantial violation of Chapter 15, the chapter under which the controlling statute, G.S. § 15-207, is found.

Second, the qualified privileged applicable to GPS data belonged to DPS, and DPS waived that privilege by releasing data to law enforcement as to where defendant traveled on 22 March 2017.

Lastly, Joan McCurry, on behalf of DPS, complied with the search warrant in providing the data to law enforcement, and it was these data that were actually admitted at trial.

Therefore, we conclude no plain error occurred at trial with respect to the admission of GPS data concerning defendant.

Facebook Message

A witness would have testified about a Facebook message send by the victim. However, the Facebook message was hearsay because the evidence was being offered for the truth of the matter asserted—to show the victim headed to Haw Branch to partake in a fight on the day he was murdered.

The Facebook message indicates the victim may have headed to Haw Branch at some time on 22 March 2017 with the intention to fight an undisclosed person; however, the message does no more than cast doubt over defendant’s guilt merely because it is possible some other person could have been responsible for the crime; it does not point directly to the guilt of another party. This conclusion is particularly bolstered given the victim was murdered while he was sitting on his living room couch, and the state’s evidence tends to show the bullets and shell casings found at the victim’s home matched bullets in defendant’s possession and were fired from a gun that was in defendant’s possession. Furthermore, the record tends to show defendant was at the address of the victim’s house on 22 March 2017 during a time when the offense could have been committed and after the victim was last seen alive.

Defendant did not present any other evidence to cast doubt upon the state’s theory of the case; he solely created an inference that another person was responsible for the victim’s death. Thus, the proposed evidence is too remote and speculative to be relevant. Therefore, the trial court properly denied admission of the victim’s Facebook message at trial.

Opportunity

The state’s evidence showed defendant’s electronic monitoring device placed defendant in the vicinity of the victim’s home and at the scene of the crime on 22 March 2017—one day before the deceased body was found and on the same day the victim was last seen alive, and at a time when a reasonable jury could find the crime could have been committed.

Additionally, the state presented the testimony of Tommy Carson, whom defendant told he, “was going up the road to take care of some business,” while defendant was located on the same road as the victim’s house. Defendant made his statement after he showed Carson a firearm matching the description of the murder weapon. Considering the evidence in the light most favorable to the state, a reasonable jury could conclude that defendant was in the vicinity of the victim’s home and the scene of the crime at the time of the victim’s death, which would establish defendant had the opportunity to commit the murder.

Capability

Silver-colored shell casings with the headstamp of FC LUGER 9 MM found around the victim’s body matched the ammunition that was found in defendant’s truck by law enforcement on 22 March 2021, shortly after defendant was in the vicinity of the victim’s home, based on GPS data provided at trial. The search of defendant’s truck and home also revealed defendant possessed multiple guns, one of which was later determined to be the murder weapon.

Thus, the record contains sufficient evidence to permit a reasonable jury to find he had the capability to commit first degree murder.

Premeditation & Deliberation

The evidence tends to show defendant fired three shots into the victim’s head, two of which were discharged at close range. This indicates the victim was shot after he had been felled and rendered unconscious, and he was killed in a brutal manner. In light of such evidence, we hold there

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28 / OPINION DIGESTS was substantial evidence of premeditation and deliberation; thus, the trial court did not err in denying defendant’s motion to dismiss the charge of first-degree murder and submitting the charge to the jury.

No error.

State v. Gallion (Lawyers Weekly No. 011-066-22, 52 pp.) (Jeffery Carpenter, J.) Appealed from Buncombe County Superior Court (Carla Archie, J.) Robert Montgomery and Daniel O’Brien for the state; William Spence for defendant. 2022-NCCOA-164

N.C. BUSINESS COURT

Tort/Negligence Breach of Fiduciary Duty – LLC – Majority Member – Business Judgment Rule Where (1) defendant Hornwood, Inc. (defendant) is the majority member of the nominal defendant limited liability company (LLC); (2) defendant owned all of the manufacturing facilities at which the LLC’s products were manufactured; (3) plaintiff was not capable of manufacturing the LLC’s products without defendant; (4) the LLC’s operating agreement says that “all decisions with respect to the management of the business and affairs of [the LLC] shall be made by action of a Majority Interest of the Members”; (5) the operating agreement does not address or disclaim fiduciary duties; (6) defendant acted unilaterally to decide financial issues of the LLC, including unilaterally deciding, and informing plaintiff without debate, that defendant would increase the prices it charged the LLC for its production of fabric and that plaintiff would no longer be paid a sales commission; and (7) defendant controlled the LLC’s bank account, there is sufficient evidence to support plaintiff’s claim that defendant both served the LLC in a fiduciary capacity and owed fiduciary duties directly to plaintiff.

The court grants defendants’ motion for summary judgment (a) on plaintiff’s breach of fiduciary duty claim regarding defendant’s management of the LLC’s transition to new laminator C.H. Mueller, (b) on plaintiff’s breach of fiduciary duty claim regarding the LLC’s management of its accounts receivable and its tax records, and (c) on plaintiff’s breach of fiduciary duty claim regarding defendant’s decision to cease cash distributions to members of the LLC. Otherwise, defendants’ motion is denied. The court grants plaintiff’s motion for summary judgment on the LLC’s counterclaim against it.

Business Judgment Rule

Defendant seeks the protection of the business judgment rule with respect to several of plaintiff’s claims of breach of fiduciary duty.

However, defendant’s alleged failure to communicate the correct specifications to Mueller prior to a customer’s product trials is not the type of conduct protected by the business judgment rule. The alleged tortious act by defendant through its agents regarding communication with Mueller about the customer’s specifications and overseeing the manufacturing and delivery process was not a “business decision” as contemplated by the business judgment rule, but was instead in the nature

of a ministerial act.

Plaintiff’s evidence tends to indicate that the customer sent defendant the trial specifications and that defendant failed to accurately convey that information to its laminator, Mueller, causing the LLC to submit samples to the customer in the wrong quantity with foam of the wrong thickness and with excessive fabric defects. Defendant’s communication to Mueller of the customer’s specifications was a ministerial act that did not involve either judgment as to whether to enter into a course of conduct, or a weighing of the risks and rewards of future conduct. Likewise, the alleged failure to properly oversee manufacturing and quality assurance is similarly ministerial. This is not the type of situation where defendant’s decisions and conduct are protected by the business judgment rule from critical review.

Plaintiff argues that defendant’s reliance on defendant’s customer service representative Scott Dutton to perform certain tasks essential to the Mueller transition, and defendant’s exclusion of plaintiff from communicating with Mueller constituted lack of attention, unreasonable decisionmaking, and a breach of loyalty.

However, the record indicates that defendant was attentive to Dutton’s performance in his role for the LLC. Thus, plaintiff has failed to provide sufficient evidence, at this stage, to suggest that defendant was inattentive, uninformed, acted in bad faith, or acted unreasonably. Further, the conduct at issue here is the type that comes within the ambit of the business judgment rule.

Plaintiff also alleges that defendant failed to properly collect the LLC’s accounts receivable. Yet the record contains evidence of the LLC’s efforts to collect past-due receivables from its customers. The evidentiary forecast is not sufficient to demonstrate that defendants’ actions were outside the realm of the business judgment rule, were improper, or caused plaintiff harm.

Plaintiff contends that defendant caused plaintiff’s tax forms to erroneously classify plaintiff’s income by failing to report commission payments by the LLC to plaintiff on a Form 1099.

Defendants maintain that discrepancies on plaintiff’s Form 1099 were clerical errors and that defendant has addressed these errors with the LLC’s accountant. In any event, plaintiff has not shown how it was injured by the alleged misconduct.

In addition, plaintiff has not submitted sufficient evidence to rebut the presumption afforded by the business judgment rule that defendants acted in good faith when deciding to halt cash distributions—particularly when the record reflects that the LLC faced financial difficulty less than one year later. The business judgment rule applies to the conduct at issue, and plaintiff has not rebutted the presumption afforded by the rule with respect to ceasing cash distributions to the LLC’s members.

Economic Loss Rule

Defendant argues that the economic loss rule bars plaintiff’s recovery in tort for defendant’s decision to raise the prices it charged the LLC for fabric.

To state a viable claim in tort for conduct that is also alleged to be a breach of contract, a plaintiff must also allege a duty owed to him by the defendant separate and distinct from any duty owed under a contract.

Plaintiff’s claims for breach of fiduciary duty against defendant arise

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 28, 2022

from the duties defendant owed as majority member and manager of the LLC. Those duties are independent from any contractual duties the operating agreement may require of defendant. Thus, the economic loss rule does not bar plaintiff’s claims.

When the COVID-19 pandemic hit the United States, plaintiff, who was already in poor health, executed the Redemption Agreement, despite his continued opposition to B&M’s valuation.

Counterclaim

Based on the facts alleged in the complaint, it is not clear that there was an intent by all the parties that the Redemption Agreement be substituted for the original contract, the Stock Partner Agreement. Further, the Redemption Agreement itself does not express an intent by all the parties that it was meant to be substituted for the Stock Partner Agreement.

Neither the facts alleged in the complaint nor the language within the four corners of the Redemption Agreement supports defendants’ contention that all parties agreed to a novation. Defendants are not entitled to dismissal of plaintiff’s breach of contract claim.

Where the LLC’s counterclaim against plaintiff for breach of fiduciary duty is entirely premised on plaintiff’s initiating this lawsuit – a petitioning activity protected by the state and federal constitutions – the counterclaim is dismissed with prejudice.

Emrich Enterprises, LLC v.

Hornwood, Inc. (Lawyers Weekly No. 020-011-22, 50 pp.) (Michael Robinson, J.) Michelle Liguori, Emily Melvin, Jonathan Sasser and Thomas Segars for plaintiff; Mark Nebrig and Kaitlin Price for defendants. 2022 NCBC 11

Civil Practice

Breach of Contract

Mutual Mistake Mislabeled Claim – Motion to Dismiss – ‘Course of Dealing’ – Implied-in-Fact Contract The parties agree that the complaint’s “course of dealing” claim was actually a mislabeled claim for breach of an implied-in-fact contract. The fact that a plaintiff might have mislabeled his claim is of no significance in ruling on a motion to dismiss pursuant to N.C. R. Civ. P. 12(b)(6).

Defendant’s motion to dismiss is denied.

Cardinal Travel Service, Inc. v. Advance Stores Co. (Lawyers Weekly No. 020-012-22, 5 pp.) (Louis Bledsoe, C.J.) Matthew Waters and Rhian Mayhew for plaintiff; Alexander Gormley, Lauren Fassell and Camden Webb for defendant. 2022 NCBC 12

Corporate Stock Agreement – Breach of Contract – Constructive Fraud – Accounting Practices Plaintiff, who was in poor health and dire financial straits, signed a stock redemption agreement (Redemption Agreement) even though he disagreed with the agreement’s valuation of the defendant-corporation’s stock. However, nothing in the Redemption Agreement or in plaintiff’s complaint indicates that the parties meant for the Redemption Agreement to be substituted for their earlier “Stock Partner Agreement.”

Defendants’ motion to dismiss is granted as to plaintiff’s claims of mutual mistake and negligent misrepresentation but denied as to plaintiff’s claims of breach of contract, constructive fraud and unjust enrichment.

Background

On January 1, 2015, plaintiff joined defendant-corporation Brown & Morrison, Ltd. (B&M) and became a one-third owner via the purchase of 100 shares of its stock. Plaintiff subsequently learned that not all account or commission receivables were being included in B&M’s accrual-method accounting records.

Plaintiff alleges that this resulted in an understatement of B&M’s value. According to plaintiff, inclusion of the omitted receivables would significantly increase the per-share purchase price to be paid to redeem his stock.

Even if the court were to read the complaint’s claim of “mutual mistake” as a claim for reformation or rescission of the Redemption Agreement, the claim would still fail for failure to allege any “mistake.”

Plaintiff was fully aware of the provisions in the contract that were not in accordance with his understanding of the terms that should have been included in the contract. Yet, despite his disagreement with the content and manner in which his per-share purchase price had been calculated, he executed the Redemption Agreement anyway.

Based on the express statements in his complaint, the court can only conclude that plaintiff made no mistake as to the terms of the Redemption Agreement; rather, he agreed to take less than what he had argued he was owed.

Plaintiff’s “mutual mistake” claim is dismissed.

Negligent Misrepresentation

In his complaint, plaintiff repeatedly admits that he knew the true facts underlying defendants’ alleged “misrepresentation.” Plaintiff cannot properly allege that he justifiably relied on representations made by B&M while also alleging that he knew the true facts underlying those alleged misrepresentations. The complaint further fails to allege how plaintiff, with reasonable diligence, could not have discovered the true facts prior to executing the agreement sin question.

Plaintiff’s negligent misrepresentation claim is dismissed.

Constructive Fraud

The parties were on essentially equal footing. By the time they started negotiating plaintiff’s withdrawal, another stockholder had already withdrawn, leaving plaintiff and defendant Marks as equal 50-percent shareholders in B&M and each brought business knowledge and sophistication to their respective roles, notably including plaintiff’s prior experience at his company, Chapman Associates, Inc., which offered similar products and services as B&M. Further, shareholders generally do not owe a fiduciary duty to each other or to the corporation. However, to the extent that plaintiff alleges that B&M and Marks—as president of B&M— were functioning in the capacity of fiduciaries to the company’s shareholders, and that defendants breached

OPINION DIGESTS / 29

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 28, 2022

that fiduciary duty as to plaintiff as the only other shareholder in B&M, plaintiff’s allegations are sufficient to withstand the motion based on a unique injury.

Corporate officers owe fiduciary duties to the company but not directly to its shareholders. A shareholder may only bring an individual action against a third party for an injury that directly affects the shareholder under two circumstances: (1) where the third party owed the shareholder a special duty; or (2) where the shareholder suffered a separate and distinct personal injury from the injury sustained by other shareholders or the corporation itself.

Plaintiff has alleged sufficient facts to demonstrate that his injuries were unique from any other shareholders and from B&M. Firstly, B&M stood to benefit from the reduced pershare purchase price paid to plaintiff.

Secondly, plaintiff alleges that his treatment at the time of his resignation and stock sale differed dramatically from the treatment that former shareholder Doug Jackson received from B&M in 2019 when Jackson sold his shares to the company.

Therefore, the complaint sufficiently alleges that plaintiff’s injuries were unique based on his agreements with

B&M—the Redemption Agreement and the Stock Partner Agreement— and the per-share purchase price paid

by B&M for plaintiff’s shares.

Finally, contrary to defendants’ arguments, an indirect benefit can form the basis for a claim of unjust enrichment, and the complaint need not explicitly state that an unjust enrichment claim is being alleged in the alternative to claims based on an express contract.

Motion granted in part, denied in part.

Oliver v. Brown & Morrison, Ltd. (Lawyers Weekly No. 020-01322, 31 pp.) (Michael Robinson, J.) Rick Ruffin for plaintiff; Anthony Todd Capitano, Erin Christin Huegel and Frederick Sharpless for defendants.

2022 NCBC 13

N.C. COURT OF APPEALS, UNPUBLISHED

Criminal Practice Plea Agreement – Factual Basis – Alternative Facts Defendant petitions for writ of cer-

tiorari to review the judgment based on his guilty plea, for which the prosecution set out a factual basis: during an altercation, defendant struck a fatal blow to the victim’s head with a metal pipe, put the victim in a car, drove the car away, took the victim’s wallet and bloody shirt, and abandoned the car with the victim inside it. Defendant presented an alternative factual basis—not mentioned during the investigation—asserting that he stepped in because the victim was attacking defendant’s house guest.

Defendant argues that the trial court was required to make a formal finding identifying which factual basis was accurate—the state’s or defendant’s. However, defendant does not cite any cases suggesting that a defendant must agree with the state’s factual basis to enter a guilty plea, or that the trial court must conduct an evidentiary hearing or make fact findings about the state’s factual basis if the defendant submits an alternative factual basis. Defendant has failed to show merit or that error was probably committed below.

Appeal dismissed.

Even though the scoring grid for defendant’s prior record level incorrectly included certain misdemeanor

convictions, it also omitted stipulated felony convictions. Had the scoring grid accurately tallied defendant’s prior convictions, he would still be at prior record level V, the same level at which he was sentenced. He has not shown prejudice.

State v. Largen (Lawyers Weekly No. 012-046-22, 8 pp.) (Richard Dietz, J.) Appealed from Rockingham County Superior Court (Stanley Allen, J.) Caden William Hayes for the state; Jarvis John Edgerton for defendant. 2022-NCCOA-78

Criminal Practice Post-Conviction DNA Testing Motion – Actual Innocence – Conclusory Statements In support of his motion for postconviction DNA testing, defendant has made numerous conclusory statements such as “testing will prove the outcome of facts to show [defendant’s] Innocence.” Defendant has failed to allege any specific facts showing materiality to his defense.

We find no error in the trial court’s denial of defendant’s motion for postconviction DNA testing.

State v. Denny (Lawyers Week-

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30 / OPINION DIGESTS ly No. 012-047-22, 6 pp.) (Jefferson Griffin, J.) Appealed from Forsyth County Superior Court (David Hall, J.) Benjamin Szany for the state; Heidi Reiner for defendant.

2022-NCCOA-74

Criminal Practice Statutory Rape & Indecent Liberties – Sex Offender Registry – Aggravating Factor – Position of Trust At the trial court’s suggestion, a prosecution witness referred to the sex offender registry simply as a “database.” However, she also testified about her efforts to make sure offenders were in compliance with the database’s requirements, such as ensuring they were living at their listed addresses. This evidence was used to show that defendant lived with the child complainant’s mother, giving him access to the victim.

We find no error in defendant’s convictions of two counts of first-degree statutory rape and two counts of taking indecent liberties with a child.

Defendant’s counsel did not request that the witness, a detective, be prohibited from explaining how the database was maintained or type of information included, nor did he object to the detective’s testimony regarding the database.

Although defendant stipulated to one change of address form, he did not stipulate to the other change of address forms. Since defendant had not stipulated to the remaining change of address forms, the state had to present testimony to lay the foundation for this evidence, so the detective testified about her role in maintaining the database.

Moreover, the evidence regarding the database was relevant for a purpose other than “to alert the jury to [defendant’s] prior bad behavior and bad character.” The state presented evidence of defendant’s addresses over the years to show he lived with complainant “K.T.’s” mother. This evidence showed defendant had access to K.T. by living in a residence with K.T. and her mother for years, and the state also used this evidence to support the aggravating factor of taking advantage of a position of trust or confidence, including a domestic relationship.

Further, defendant’s attorney did not object to K.T.’s or her mother’s references to defendant’s incarceration. Defendant can show no prejudice where evidence of a similar import has also been admitted without objection and has not been made the subject of an assignment of error on appeal.

The state presented evidence that (1) defendant dated and lived with K.T.’s mother from 2006 to 2015, except for three periods of incarceration; (2) defendant sexually assaulted K.T. and threatened that he would kill the people she loved if the ever told anyone; (3) when K.T. lived under the same roof as defendant, defendant picked her up from school and cared for her when her mother worked; and (4) defendant used his access to K.T. while living in the same home with her family or with her mother to commit each alleged act of abuse. Therefore, the record contained sufficient evidence to support the finding as an aggravating factor that defendant took advantage of a position of trust and confidence.

State v. Glasson (Lawyers Weekly No. 012-048-22, 23 pp.) (Donna Stroud, C.J.) Appealed from Union

County Superior Court (Jeffery Carpenter, J.) Tracy Nayer for the state; Kimberly Hoppin for defendant.

2022-NCCOA-76

Criminal Practice Trespassing – First Impression – Public Sidewalk – Resisting Arrest Although our court has not addressed whether an individual can be prosecuted for trespassing in a public space such as a city sidewalk, the reasoning in our precedent regarding a defendant’s trespass in an establishment open to the public is binding. A uniformed (though off-duty) police officer told defendant numerous times to “move along” from the sidewalk in front of the restaurant where the officer was working security. Despite being warned that, if he did not stop disturbing the restaurant’s patrons (defendant was talking loudly and using curse words), he would be arrested, defendant continued to return to the spot outside the restaurant and began looking in the restaurant window. The evidence demonstrated that defendant committed acts sufficient to render the implied consent for an individual to occupy a public space void ab initio; accordingly, there was sufficient probable cause for the officer to arrest defendant for trespassing.

We find no error in defendant’s convictions for assault on a government official, malicious conduct by a prisoner, and resisting a public officer.

The off-duty officer, Sergeant Rick Tullis, and the on-duty officers who came to assist him lawfully arrested defendant for second-degree trespass. Therefore, defendant did not have the right to resist a lawful arrest or to exercise his right to self-defense against a lawful arrest.

The trial court did not err in denying defendant’s motion to dismiss the offense of assault on a government official based on defendant’s kicking of Sergeant Tullis.

While working off duty, Sergeant Tullis was still a law enforcement officer. Defendant spat at Sergeant Tullis during his arrest. Consequently, the trial court did not err by denying defendant’s motion to dismiss the charge of malicious conduct by a prisoner.

Body camera footage of defendant’s arrest showed that he verbally protested by repeatedly stating, “Whoa,” and resisted by rapidly shaking his hands and moving his hands up and down behind his back while the officer was handcuffing him. Defendant kicked Sergeant Tullis in the shin after the officer had him in handcuffs.

Accordingly, the “assault” of kicking the officer was not the means by which the officers were resisted. The trial court properly sentenced defendant for both resisting arrest and assault on a law enforcement officer.

No error.

State v. Hahn (Lawyers Weekly No. 012-049-22, 15 pp.) (April Wood, J.) Appealed from Buncombe County Superior Court (Peter Knight, J.) Patrick Wooten for the state; Jason Christopher Yoder for defendant.

2022-NCCOA-77

Criminal Practice Felony Breaking & Entering – Fired Contractor – Intent The trial court allowed the de-

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fendant-contractor to testify that, when he entered the building he had been hired to renovate, he did not intend to steal items from the building and that he believed he had “every right” to enter the building. Because defendant was still permitted to argue his theory of the case, the trial court did not err by granting the state’s motion in limine to preclude defendant from arguing the building’s owner could not engage in self-help eviction.

We find no error in defendant’s convictions of felony larceny, felony breaking and entering and injury to real property.

Before he learned that he had been replaced by a different contractor, defendant went to the building to retrieve a saw. His keys no longer worked (the owner had changed the locks), so defendant simply lifted the very old front door out of his way. On his way out of the building, defendant saw a note from the building owner, notifying him that he had been fired. Thereafter, defendant took items from the building and caused damage to the building.

Aside from the fact that defendant failed to produce purportedly illustrative photographs in discovery, his purpose for seeking to introduce them – that the length of time of the renovation – has little bearing on whether defendant was criminally liable for breaking into the building, damaging it and stealing items from it.

Defendant argues that, had the trial court fully instructed the jury on the specific intent requirement, he would not have been convicted of felony breaking and entering as he lacked the requisite intent.

However, the trial court instructed the jury, “Non-felonious breaking or entering differs from felonious breaking or entering in that it need not be done with the intent to commit a larceny at the time of the breaking and/or entry, so long as it was wrongful; that is, without any claim of right.”

Statements made by the building’s owner contradicted the theory that defendant had consent to be on the premises at the time of the incident. The owner had terminated the contract with defendant, leaving a note on the door and changing the locks. The note specifically stated defendant was not to enter the building and that he could contact the owner about arranging a way to get his property back. The owner then hired a new contractor to complete the renovations.

While defendant was on the premises, he discovered he was locked out of the building and forcibly gained entry. Defendant further admitted that he intentionally caused damage after he saw the note, and took a box of floor tile, a hose bib, a water heater, and several other items from the building.

Defendant further conceded that it took “several trips” for him to remove the items from the building and load them into his vehicle.

Accordingly, we decline to hold that the trial court committed plain error in instructing the jury when it distinguished between felonious breaking and entering and misdemeanor breaking and entering.

No error.

State v. Sanford (Lawyers Weekly No. 012-050-22, 16 pp.)

(April Wood, J.) Appealed from McDowell County Superior Court

(Marvin Pope, J.) Gail Carelli for the state; Sandra Payne Hagood for defendant. 2022-NCCOA-84

Criminal Practice Invited Error – Jury Instructions – Deadly Weapon – 4 ½-Inch Blade The trial court ruled that, as a matter of law, the 4 ½-inch bladed knife that defendant used to stab the victim was a deadly weapon.

However, defendant’s failure to object during the charge conference or after the instructions were given to the jury, along with his express agreement during the charge conference and after the instructions were given to the jury, constitutes invited error. Defendant’s invited error waives any right to appellate review including plain error review.

We find no error in defendant’s conviction of assault with a deadly weapon inflicting serious injury.

State v. Poss (Lawyers Weekly No. 012-051-22, 6 pp.) (John Tyson, J.) Appealed from Guilford County Superior Court (Stuart Albright, J.) Terence Steed for the state; Richard Costanza for defendant. 2022-NCCOA-83

Criminal Practice Attempted Murder – Premeditation & Deliberation – Heat of Passion After custody of defendant’s granddaughter was awarded to the child’s father, victim Palacios, defendant attempted to lure Palacios to an isolated location under false pretenses, she texted others that she was hunting Palacios down to kill him and would be going to prison, and she fired multiple shots at Palacios and his girlfriend. The state presented substantial evidence of the premeditation and deliberation elements of attempted first-degree murder.

We find no error in defendant’s convictions for two counts of attempted first-degree murder.

The trial court denied defendant’s request for a jury instruction on attempted voluntary manslaughter. Defendant contends that her testimony showed the unexpected custody ruling “completely devastated her,” causing her to act in the heat of passion. She argues that the court’s ruling in the custody matter earlier in the day, coupled with her “previous history” with Palacios, “pushed her over the edge.”

But undisputed evidence showed that the court ruling on custody occurred many hours before the shooting. During that intervening time, defendant actively sought out Palacios, lured him to meet her under false pretenses, and attempted to kill him and victim Dyer, his girlfriend. In light of this evidence, the trial court properly determined that it was not appropriate to instruct on the lesser-included offense of voluntary manslaughter based on heat of passion.

Defendant also unsuccessfully sought a jury instruction on voluntary intoxication. Defendant testified that she took a large amount of Klonopin pills, a drug that can produce intoxicating effects. She also testified that did not recall many of the details of the events that day.

But the state’s evidence showed that during the relevant time

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frame leading up to and during the shooting, defendant was able to drive a car, speak coherently with Palacios by phone, formulate a deceptive plan to get Palacios to meet her, including negotiating the location, and then describe a plan to kill Palacios in a series of other text messages. Officers who spoke to defendant after her arrest found her able to speak clearly and respond to questions. In light of this evidence, the trial court properly determined that a voluntary intoxication instruction was not appropriate because defendant had not presented substantial evidence that she was utterly incapable of forming a deliberate and premeditated intent to kill.

No error.

State v. Nougier (Lawyers Weekly No. 012-052-22, 10 pp.)

(Richard Dietz, J.) Appealed from Randolph County Superior Court (Kevin Bridges, J.) Jeremy Lindsley for the state; William Spence for defendant. 2022-NCCOA-81

Criminal Practice Appeals – Guilty Plea – Court Costs Since he pleaded guilty, defendant can only appeal the issues set out in G.S. § 15A-1444(a2)(2).

Although those issues include any sentence not authorized by G.S. § 15A-1370.17 or § 15A-1340.23, and although G.S. § 1340-17(b) allows a court to include a discretionary fine in any judgment, neither § 15A-1340.17 nor § 1340-23 governs court costs, which are prescribed in G.S. § 7A-304(a). Section 7A304 distinguishes between fines and costs. We conclude that § 15A1444(a2)(2) does not entitle defendant to appeal the issue of court costs imposed in his judgments under § 7A-304(a). Defendant did not petition the court for a writ of certiorari.

Appeal dismissed.

State v. Parker (Lawyers Weekly No. 012-053-22, 6 pp.) (Jeffery Carpenter, J.) Appealed from Beaufort County Superior Court (Wayland Sermons, J.) Regina Cucurullo for the state; Leslie Rawls for defendant. 2022-NCCOA-82

Criminal Practice Search & Seizure – Maryland Arrest – Exigent Circumstances – Murder Even if Maryland state troopers were not in possession of defendant’s North Carolina arrest warrant at the time they entered a Maryland home and arrested defendant, exigent circumstances existed to justify entry into the home, and the items found in the home at the time of the arrest were admissible at defendant’s trial.

We find no error in defendant’s convictions of first-degree murder and armed robbery.

The Maryland state troopers had reason to believe defendant was armed. They also had a strong reason to believe defendant was on the premises at the time of entry as (1) they had been led there by defendant’s sister and (3) defendant’s accomplice confirmed that defendant was in the house when he surrendered to police. The evidence and the trial court’s uncontested findings disclosing the troopers’ manner of entry – peaceably, after an-

nouncing their presence, through an unlocked door, and in the afternoon – likewise support the trial court’s determination.

All of these facts, as established by uncontradicted evidence and findings not challenged on appeal, weigh in favor of the existence of exigent circumstances.

Defendant argues that no exigency existed because (1) the troopers created any exigency by knocking and announcing their presence, (2) she was not a flight risk, and (3) she was not in a position to destroy evidence at the time of arrest.

These contentions do not withstand scrutiny.

Defendant’s first argument— that the result of the troopers knocking and announcing their presence would be an attempt by one or both of the co-defendants to leave the house—is unconvincing on its fact and as a matter of fact.

Defendant’s argument that she was otherwise not a flight risk also lacks merit. Defendant had fled North Carolina for Maryland immediately after the murder. Her accomplice had attempted to exit the house through the back door when the troopers knocked on the front door and announced their presence.

Such facts support a reasonable belief that defendant would attempt to flee if given the opportunity.

Defendant’s final contention is that evidence of the crime was not readily destructible and she was in no position to destroy evidence because she was in the shower at the time of her arrest. However, the act of showering could itself result in the destruction of evidence of the murder. A perpetrator could very well wash away DNA, blood, or other physical evidence from her person or effects by taking a shower.

This fact supports a conclusion of existent circumstances.

The trial court did not err by finding that exigent circumstances obviated the need for an arrest warrant under the state and federal constitutions.

State v. Faulk (Lawyers Weekly No. 012-054-22, 14 pp.) (Lucy Inman, J.) Appealed from Columbus County Superior Court (Douglas Sasser, J.) Zachary Dunn for the state; Marilyn Ozer for defendant.

2022-NCCOA-75

Criminal Practice Indecent Liberties – Hearsay – Corroboration – Mother & Detective The child victim’s mother testified that, during a telephone conversation with defendant, her ex-boyfriend, he asked that if he had done “this” (i.e., molested her daughter), could she forgive him; however, she testified that, when she asked him directly if he had done it, he said he couldn’t talk about it on the phone. The mother also testified that she had talked to a detective, but she gave no details about their conversation. When describing that conversation, the detective testified that, the “gist” of it was that defendant had admitted he had done it. Although there were differences between the witnesses’ testimonies, the trial court did not abuse its discretion in admitting the detective’s testimony as corroboration of the mother’s testimony.

We find no error in defendant’s conviction for taking indecent liberties with a child.

The differences between the trial testimonies of the mother and the detective are the sort of variation that a trial court, in its sound discretion, could find to affect the credibility of the evidence, not its admissibility. After all, the mother’s testimony about her conversation with defendant reasonably could be understood as “an admission of some sort” (as the detective testified) and the “gist” of that conversation could reasonably be described as an admission, although not a direct one. Thus, the detective’s testimony, although it varied from the mother’s trial testimony, added credibility to the mother’s direct testimony about her conversation with defendant.

The trial court also provided a detailed limiting instruction explaining that the detective’s testimony was admitted solely to corroborate the mother’s earlier trial testimony and that the jury could not consider the detective’s testimony “as evidence of the truth” of what the mother told the detective. In light of these facts, the trial court’s decision to admit the testimony as corroboration was not so arbitrary that it could not have been the result of a reasoned decision and was thus within the trial court’s sound discretion.

State v. Torres (Lawyers Weekly No. 012-055-22, 10 pp.) (Richard Dietz, J.) Appealed from Buncombe County Superior Court (Alan Thornburg, J.) Margaret Force for the state; Mark Montgomery for defendant. 2022-NCCOA-85

Criminal Practice Child Sex Abuse – Expert Witness – Consistent Symptoms Because the state’s expert only testified that characteristics of “Henrietta’s” reported history were consistent with sexual abuse, did not factually assert that sexual abuse had occurred, and did not affirmatively diagnose Henrietta as having endured sexual abuse in concluding her “history supports a diagnosis of sexual abuse,” the expert did not improperly vouch for Henrietta.

We find no prejudicial error in defendant’s convictions for two counts of statutory sex offense with a child, three counts of rape of a child, and five counts of taking indecent liberties with a child.

Although defendant raised several objections to the expert’s reports, he failed to object when Henrietta’s therapy recommendation and the challenged portions of “Irene’s” report were read for the jury. Defendant has thus waived review of this evidence, as the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character.

Even if we were to presume error, defendant has not shown prejudice. The jury had ample opportunity to appraise the credibility of both Henrietta and Irene, as both children testified at trial. The jury also viewed the same videotaped forensic interviews of Henrietta and Irene that the expert relied on in evaluating the children, giving the jury another chance to observe their demeanor and consider their truthfulness as it related both to the expert’s opinion and the prosecution of defendant.

Further, physical evidence corroborated Henrietta and Irene’s testimony: police found (1) pornography recovered in defendant’s bedroom consistent with Henrietta’s reports and (2) a blue massager in defendant’s dresser that matched descriptions given by both children.

And defendant’s wife read for the jury the letter in which defendant expressed remorse for his past conduct. Defendant has not shown a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.

No prejudicial error.

State v. Viers (Lawyers Weekly No. 012-056-22, 13 pp.) (Lucy Inman, J.) Appealed from Johnston County Superior Court (Keith Gregory, J.) Lauren Clemmons for the state; James Glover for defendant. 2022-NCCOA-86

Civil Practice Appeals – Interlocutory – Defendant’s Dismissal In this wrongful death suit, plaintiff named two defendants.

The trial court dismissed one of those defendants on the basis of insufficiency of process and insufficiency of service of process; however, plaintiff’s claims remain against the other defendant. Therefore, this appeal is interlocutory.

Since N.C. R. Civ. P. 54 does not apply and plaintiff does not argue the judgment affects a substantial right, this appeal is not properly before us.

Appeal dismissed.

Wattley v. Wortham-Thomas (Lawyers Weekly No. 012-057-22, 13 pp.) (Donna Stroud, C.J.) Appealed from Mecklenburg County Superior Court (Lisa Bell, J.) Elliott Field for plaintiff; Ted Mitchell for defendant. 2022-NCCOA-88

Labor & Employment REDA – Complaints to Supervisors – Retaliation Complaint – Employer Plaintiff’s complaints about safety concerns were made only to his supervisors; his complaints to the human resources department and to the U.S. Department of Labor were that he had been retaliated against for complaining to management about unsafe conditions and for refusing to perform an unsafe task. Under Pierce v. Atlantic Group, Inc., 219 N.C. App. 19, 724 S.E.2d 568 (2012), plaintiff cannot make out a prima facie case of retaliatory discrimination under the Retaliatory Employment Discrimination Act. We affirm summary judgment for defendant.

As a separate ground for summary judgment, plaintiff named the wrong defendant. He was employed

by Mission Hospital, Inc., but he named Mission Health System, Inc., as the defendant. A REDA claim must be brought against the plaintiff’s employer, not a related organization.

Abernathy v. Mission Health System, Inc. (Lawyers Weekly No. 012-058-22, 14 pp.) (Richard Dietz, J.) Appealed from Buncombe County Superior Court (Marvin Pope, J.) John Hunter for plaintiff; Jonathan Yarbrough and Jill Stricklin for defendant. 2022-NCCOA-98

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