North Carolina Lawyers Weekly April 11, 2022

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Habitual felon sentence didn’t transform underlying crimes ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com

The court also wasn’t persuaded that “defense” was limited to specific arguments made by a defendant before the trial court prior to their conviction, ruling that the law is “couched” in the present tense (postconviction DNA testing “is material to the defendant’s defense” rather than the defense presented at trial), indicating that lawmakers recognize that a defense may evolve in light of new DNA evidence.

Kelvin Alphonso Alexander pleaded guilty to second-degree murder in the killing and robbery

A habitual felon sentencing enhancement doesn’t reclassify underlying felonies to higher-level felonies, the North Carolina Court of Appeals has unanimously ruled in a case of first impression, finding that a trial court erroneously applied a further sentencing enhancement for serious sexual offenders to a man whose sentence for a low-level felony was enhanced because he was a habitual felon.

Roger Essick Jr. pleaded guilty to two counts of sexual exploitation of a minor, a Class H felony, and stipulated to being a habitual offender. Under a plea deal, his charges were to be consolidated into one Class H felony judgment with enhanced sentence of 67-93 months, equivalent to a Class D felony. But Surry County Superior Court Judge Daniel Kuehnert applied another enhancement, applicable to certain reportable convictions subject to the sex-offender registry, increasing Essick’s maximum sentence to 141 months.

The Court of Appeals, in its March 1 opinion, noted that the trial court properly enhanced Essick’s sentence for the consolidated Class H felonies because of his habitual-felon status (habitual felons are required to be sentenced four class levels higher than the principal felony for which they are convicted). But it determined that being sentenced as a Class D felon does not equate to being convicted of a Class D felony.

S e e D N A Te s t i n g P a g e 6 ►

See Enhancement Page 6 ►

Guilty plea doesn’t bar post-conviction DNA testing ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com Defendants who’ve pleaded guilty of a crime are entitled to post-conviction DNA testing if they’ve shown that the results could be material to their case, the North Carolina Supreme Court has ruled in a case of first impression.

The March 11 opinion affirms a 2020 Court of Appeals ruling in State v. Alexander, in which prosecutors argued that lawmakers used terms such as “verdict” and “defendant’s defense” to limit the statute’s application to defendants who are

convicted after a trial.

The Supreme Court interpreted the definitions more broadly.

“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,” Justice Samuel Ervin wrote for the Supreme Court.

4th Circuit makes new law on class objectors ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires A district court properly approved the settlement of a long-running class action lawsuit brought by life insurance policyholders, the 4th U.S. Circuit Court of Appeals has ruled, rejecting the objection by a single policyholder and laying down for the first time clear rules about who bears what burdens when a class member objects to a proposed settlement.

A proposed class of life insurance policyholders sued Banner Life Insurance Company and the Wil-

liam Penn Life Insurance Company of New York in 2016, alleging that, as former policyholders, they paid an excess premium to accrue a higher cash value in their account. They claim that the “cashstrapped” insurers increased their cost-of-insurance (COI) charges to prompt policyholders to move more money into their accounts, then “raided” the cash value and attempted to force policyholders to surrender their policies in an effort to solve the insurers’ liquidity problems.

Years of litigation followed, and the parties reached a settlement agreement in October 2019.

Pursuant to the deal, the insurers would refund

class members a portion of the money they’d paid, with a minimum of $100 per class member and a total value of $40 million. In return, class members released the insurers from liability for any and all claims arising out of or relating to COI rate increases.

The district court judge in Maryland preliminarily approved the settlement. In response, 89 policyholders—less than one percent of the class—opted out. A single policyholder, the 1988 Trust for Allen Children Dated 8/8/88, filed an objection, alleging See Objection Page 6 ►

INSIDE VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

COMMENTARY

School employee hurt in car crash settles case for $980K

Mold problem in new home results in $450K settlement

Fighting stigma: A lawyer’s mental health journey

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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 Apr il 11, 2022

NEWS BRIEFS Wake, UNC rise in law school rankings, Duke falls

COA halts suit fighting municipal charter school option

Two North Carolina law schools made modest jumps in the latest U.S. News & World Report Best Law School rankings, which were announced on March 29.

After taking a significant drop several years ago, Wake Forest has been steadily climbing its way back up the rankings. This year it made the biggest move of all the state’s schools, advancing four spots and improving to No. 37.

Wake’s dean, Jane Aiken, said that while it’s unfortunate that rankings have become the “coin of the realm” for law schools, she’s “delighted” to see the rise, which she attributes in part to the school’s employment rate 10 months after graduation (92.1 percent), its 94.6 percent bar passage rate, and its below-average student debt load.

“These are the critically important numbers for students looking at law schools,” Aiken wrote in an email to Lawyers Weekly.

UNC, tied for No. 24 in 2021, rose one spot to No. 23. Dean Martin Brinkley said that remaining in the top 25 is a testament to the quality of the school’s students, faculty, staff, and alumni.

“We will continue to invest in the values we hold true to being a great public law school,” Brinkley said.

“The best evidence of Carolina Law’s quality is our students and how they go out into communities and become great lawyer-leaders.”

After returning to the top 10 last year after a brief hiatus, Duke fell one spot in the latest rankings, to No. 11.

Campbell, Elon, and North Carolina Central were all unranked.

Heath Hamacher

RALEIGH (AP) — A North Carolina lawsuit that attempts to block a law permitting four Charlotte-area municipalities to operate their own charter schools can’t go forward, the state Court of Appeals ruled on March 5.

Two years ago, the North Carolina and Charlotte-Mecklenburg NAACP chapters and two parents challenged the law approved by the General Assembly in 2018, saying it violated the state constitution in part by encouraging racial segregation and financial inequity in public schools.

Republican lawmakers and town leaders who pushed the measure said it had nothing to do with race, but rather addressed overcrowded public schools in their area that the Charlotte-Mecklenburg school system failed to address adequately.

Wake County Superior Court Judge Vince Rozier refused last year to dismiss the lawsuit—as Republican legislative leaders who were sued had sought—and referred it to a panel of trial judges, which handle claims of unconstitutionality.

But the GOP lawmakers appealed to the Court of Appeals, where a separate panel of appeals judges vacated Rozier’s ruling Tuesday.

The plaintiffs “have not alleged in their complaint they sustained a direct injury, or that they are in immediate danger of sustaining a direct injury, resulting from the (law’s) enactment,” Court of Appeals Judge Jeffery Carpenter wrote in the unanimous opinion.

The plaintiffs argued the new option for Matthews, Mint Hill, Huntersville and Cornelius would create essentially new town school districts that siphon money from the Charlotte-Mecklenburg schools.

The law caused the school system—the state’s second largest with 140,000 students—to scale back student reassignment plans designed to promote classroom integration and blunt the effects of poverty upon students, according to the lawsuit.

But this allegation demonstrates an indirect injury to the civil rights groups and parents, Carpenter wrote, rather than a direct injury that the state Supreme Court declared is needed to have legal standing to sue.

And since none of the four towns has formally applied to the State Board of Education to operate a charter school, Carpenter added, “we conclude there can be no direct injury or immediate threat of injury.” Judges Valerie Zachary and Allegra Collins joined in the opinion.

Spokespeople for House Speaker Tim Moore and Senate leader Phil Berger, the two named defendants, didn’t immediately respond to a request for comment.

The Lawyers’ Committee for Civil Rights Under the Law, whose attorneys helped represent the plaintiffs, emphasized that Tuesday’s ruling focused on the legal standing to sue, rather than the challenge of the actual law.

“In short: it did not close the door to challenging (the law’s) constitutionality at a future point,” Genevieve Bonadies Torres, one of the attorneys, said in a written statement.

It’s possible the ruling could be appealed, but the ruling’s unanimous

Cooper appoints four new judges Gov. Roy Cooper has elevated a district court judge to the superior court and appointed three new district court judges, the governor’s office has announced.

Lee Gavin has been appointed to serve as a superior court judge in Judicial District 19B, serving Randolph County. Gavin was appointed to fill the vacancy created by the retirement of Judge Vance B. Long.

Gavin previously served as a district court judge in Judicial District 19B. Adam Phillips has been appointed to serve as a district court judge in Judicial District 12, serving Cumberland County. He was appointed to fill the vacancy created by the retirement of Judge April Smith.

Phillips was an assistant public defender and district court supervisor in the Cumberland County Public Defender’s Office.

Christopher Rogerson has been named a district court judge in District 8, which serves Greene, Lenoir, and Wayne counties. He will fill the vacant seat created by the retirement of Judge Charles P. Gaylor III. Craig James has been named a district court judge in District 11, which serves Johnston, Harnett and Lee counties. He will fill the vacancy created by the retirement of Judge Addie Rawls.

Staff reports

BAR DISCIPLINE

ROUNDUP Attorney: Brian Matthew Love Location: Durham Bar membership: Member since 2010 Disciplinary action: Disbarred on March 14 Background: Love used the personal information of his then-wife and ex-wife to falsely register online accounts in their names and impersonate them in sexually explicit communications with numerous men. Love obtained sexually explicit images of these victims without their consent and used the fraudulent accounts to repeatedly text them with the intent to harass them and cause them substantial emotional distress. Love was charged in federal court with twenty counts of wire fraud, two counts of aggravated identity theft, two counts of stalking, and one count of transmitting interstate communications with intent to extort. Love pleaded guilty to and was convicted of aggravated identity theft and stalking. Love surrendered his law license voluntarily, acknowledging that the facts upon which the investigation was predicated are true, and if disciplinary charges were predicated upon them he could not successfully defend against them.

Previous discipline: None

nature means the state Supreme Court isn’t obligated to hear the case.

Since the 2018 law was limited to only four communities, it wasn’t subject to Democratic Gov. Roy Cooper’s veto review. But he said that year that “municipal charter schools set a dangerous precedent that could lead to taxpayer funded resegregation.”

Racial equality in public schools is particularly scrutinized in the Charlotte-Mecklenburg system, which was the subject of a landmark 1971 U.S. Supreme Court ruling upholding busing to address segregation.

In the 1990s, a federal judge lifted the busing order upheld by the Supreme Court. A “neighborhood” school assignment policy followed that the plaintiffs say led to “dramatic resegregation.”

COA upholds Asheville’s removal of Vance obelisk RALEIGH (AP) — A western North Carolina city’s decision to remove a downtown monument honoring a Civil War-era governor has been upheld by the state’s Court of Appeals.

On March 5 the court unanimously affirmed Superior Court Judge Alan Thornburg’s decision last year to dismiss a lawsuit filed by an historic preservation group. The Society for the Historical Preservation of the 26th North Carolina Troops opposes the demolition of the obelisk honoring former Gov. Zebulon Vance in Asheville.

The Asheville City Council voted in March 2021 to remove the structure from Pack Square Plaza. The 75-foot tall obelisk was dismantled before the Court of Appeals told the city and Buncombe County in June to stop the demolition while appeals were heard, so the monument base has stayed in place.

The society had entered a formal agreement in 2015 with the city to restore the monument and raised

Attorney: Ralph J. DiLeone Location: Raleigh Bar membership: Member since 1999 Disciplinary action: Censured on March 1 Background: DiLeone hired a North Carolina resident, who was licensed to practice law only in California, to work as an attorney at his law firm. He held the attorney out on his website as an attorney able to practice law in North Carolina without any disclaimer that she wasn’t licensed in the state, and charged and collected fees for work done by the attorney on legal matters in North Carolina. DiLeone also sponsored the attorney for pro hac vice admission to local courts, even though she was ineligible as a North Carolina resident.

DiLeone said he didn’t know that the attorney was ineligible when the motions were filed, but even after he learned that the motions had b een granted erroneously, he failed to notify the courts about the error.

Previous discipline: None All information contained in the Bar Discipline Roundup is compiled and edited

by Lawyers Weekly editor-in-chief David Donovan. He can be reached at david. donovan@nclawyersweekly.com.

over $138,000 for the project, but that contract didn’t require city officials to preserve the 1897 obelisk, as the society contends, Court of Appeals Judge John Arrowood wrote.

Instead, the contract “was for the donation of restoration work, which was completed prior to (Asheville’s) decision to remove the Vance Monument,” Arrowood wrote in upholding Thornburg’s dismissal on grounds a contract breach claim was insufficient. Chief Judge Donna Stroud and Judge April Wood agreed with Arrowood’s ruling.

Vance, who was born in Buncombe County, served as governor from 1862-1865 and 1877-1879. He was also a Confederate military officer and U.S. senator. The city has said the monument is located on a site where enslaved people are believed to have been sold.

The monument was one of many Confederate statues and memorials that have been removed across the South since 2020 amid protests for racial justice.

High court opens door wider to malicious prosecution claims WASHINGTON (AP) — In a victory for people falsely accused by police of crimes, the U.S. Supreme Court has removed a barrier to lawsuits against law enforcement for malicious prosecution.

The 6-3 ruling handed down April 4 means that some malicious prosecution lawsuits that had previously been thrown out at an early stage will instead be allowed to move forward. The ruling was joined by both liberal and conservative justices.

Justice Brett Kavanaugh wrote for the majority of the court that a person seeking to sue for malicious prosecution under a federal civil See Page 23 ►

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 Ap ri l 11, 2022

VERDICTS & SETTLEMENTS / 3

School employee hurt in car crash settles case for $980K ■ BY DAVID BAUGHER A North Carolina woman with a severe fracture will receive a settlement of nearly a million dollars after being injured in a three-car accident, her attorney reports.

Isaac Thorp of Thorp Law in Raleigh and Kevin Bunn of Cary report that the bulk of their cliIsaac Thorp ent’s $980,000 settlement will come from the underinsured motorist policy of her employer, the Johnston County Schools.

The client, Barbara Hedrick was traveling north on State Route 1561 when another driver, Juan Saldana, lost control of his pickup truck coming in the opposite direction. Saldana sideswiped another vehicle before crashing into Hedrick’s car. According to the accident report, Saldana’s vehicle exceeded a safe speed for conditions.

Thorp said that his 50-year-old client suffered significant injuries in the crash and required surgery to fuse her T12-L2 vertebrae. A neurosurgeon offered testimony that Hedrick needed

permanent work restrictions indicating that she shouldn’t walk or sit for more than half an hour or be required to squat, bend, or lift more than 10 pounds.

Thorp said that Saldana had been going too fast for the curve in the road and there was some indication that his tires might possibly have been bad.

“They denied liability but they didn’t really argue much about it after his deposition,” Thorp said. He said there was some dispute over the potential cost of future medical treatments.

Thorp said that Hedrick worked for the school system and was acting in the course and scope of her employment at the time of the crash. He said that the employer’s worker’s comp carrier was entitled to be paid back for about a quarter million dollars in medical expenses and lost wages, but this amount was negotiated down substantially.

Thorp believes jurors would have liked his client if the matter had gone to trial.

“I think we would have gotten a good result,” he said.

Ben Thompson of Broughton Wilkins Sugg & Thompson in Raleigh represented Saldana, and David Fothergill of Yates, McLamb and Weyher

SETTLEMENT REPORT – MOTOR VEHICLE ACCIDENT

Amount: $980,000 Injuries alleged: Comminuted displaced L1 fracture Case name: Barbara Hedrick v. Juan Saldana Court: Johnston County Superior Court Case No.: 20-CVS-001534 Date of settlement: July 23, 2021 Insurance carrier: North Carolina Farm Bureau for at-fault driver, Union Insurance Company of Providence for UIM Attorneys for plaintiff: Isaac Thorp of Thorp Law in Raleigh and Kevin Bunn of Cary Attorneys for defendants: Ben Thompson of Broughton Wilkins Sugg and Thompson in Raleigh for at-fault driver and David Fothergill of Yates, McLamb and Weyher in Raleigh for UIM in Raleigh represented the UIM carrier. Neither returned a request for comment.

Mold problem in new home results in $450K settlement ■ BY DAVID BAUGHER A dispute stemming from a toxic mold problem allegedly caused by airflow issues in a newly constructed home has resulted in a $450,000 global settlement, the homeowners’ attorneys report.

Ed Gaskins and Katie King of Everett Gaskins Hancock in Ed Gaskins Raleigh report that the contractors designed their clients’ home just as they wanted it, including a commercial grade vent hood in the kitchen. But King said that the powerful exhaust appliance resulted in “negative air balance” in the home drawing humid, unconditioned air into the ventilation system and leaving Katie King excessive moisture which caused mold growth.

“Every time the HVAC system ran, it was circulating this black mold growth throughout the home,” King said. “What should have happened

was that the HVAC subcontractors supervised by the builder should have ensured that the home was properly balanced.”

The couple that owned the home alleged that within months of moving in, the wife began exhibiting an array of cognitive and physical symptoms that sent her to numerous specialists. After more than three years, and what King said was a “long medical journey,” tests revealed that she had elevated levels of mycotoxin, which is produced by mold.

King said that, although the homeowners selected the hood, the subcontractor should have installed a “makeup” air system to rebalance the home, and there was no allegation that the hood itself malfunctioned in any way.

Many details of the case, including the identities of the parties and the defense counsel, were withheld pursuant to a confidentiality agreement, but King said much of the defense’s arguments in the case focused on causation rather than damages, as her client eventually tested positive for Lyme disease.

“The defense was not so much that there was no mold, but that mold did not cause her condition and her symptoms,” she said.

SETTLEMENT REPORT – CONSTRUCTION DEFECT

Amount: $450,000 Injuries alleged: Property damage and permanent and severe neurological damage Case name: Confidential Venue: Confidential Date of settlement: November 2021 Most helpful experts: Bob Herrick of Cary (environmental engineering) and Frank Tyndall of Wake Forest (mechanical engineering) Attorneys for plaintiff: Ed Gaskins and Katie King of Everett Gaskins Hancock in Raleigh Attorneys for defendant: Confidential King said there was also dispute over the cost of some remediation measures at the house. The HVAC subcontractor ultimately contributed $215,000 to the settlement, with the builder giving another $140,000. The remaining $95,000 came from the heating and cooling system’s maintenance company.

Jury awards $250K to woman hit by car during lights tour ■ BY DAVID BAUGHER A Union County jury has awarded $250,000 to a Marshville woman who was struck by a car while viewing Christmas lights.

Adrienne Blocker of DeMayo Law Offices in Charlotte said that her client, Marilyn Ridnouer, was viewing holiday decorations in Monroe while walking with a Adrienne group during a home tour event Blocker when a vehicle operated by Howard John Heda ran into her, sending her flying through the air.

“We argued that Mr. Heda knew about the event going on in the neighborhood,” Blocker said. “His home was between two of the houses on the tour.

He’d seen people walking.”

Blocker said that the 2017 incident left her client with injuries including a torn rotator cuff and a broken leg that required implantation of a metal rod. No medical special damages were alleged, and the case was argued strictly on pain and suffering.

The defense’s answer to Ridnouer’s complaint argued that she bore some responsibility for her injuries because she’d been walking facing away from traffic and “failed to walk only on the extreme left of

the roadway.”

Blocker acknowledged that her client wasn’t on a sidewalk but said she was wearing a bright yellow jacket and should have been fully visible to any reasonably attentive driver.

“There were no sidewalks in the neighborhood, so she couldn’t walk on the sidewalk, which would have been the preferred place to do it,” she said.

Blocker said that the impact occurred at a low speed, and an accident reconstruction expert testified in the case regarding reactions, stopping time, and the possibility of swerving around the plaintiff.

The defense attorney, Ken Raynor of Raynor Law Firm in Charlotte, said there was little dispute over the extent of injury, and much of the case dealt with the issue of who had the “last clear chance” to avoid the crash since plaintiffs are usually barred from recovery if contributory negligence can be established.

On its verdict sheet, jurors indicated that Ridnouer’s negligence did in part contribute to her injuries. But the jury also found that Heda had the last clear chance to avoid the impact, which meant that it could still award damages to Ridnouer.

Raynor said that the case was a difficult situation.

“It is a tough case for the defendant just because the testimony was that my client never saw the plaintiff at all before he hit her,” Raynor said.

VERDICT REPORT – MOTOR VEHICLE CRASH

Amount: $250,000 Injuries alleged: Broken leg and torn rotator cuff Case name: Marilyn Ridnouer v. Howard John Heda Court: Union County Superior Court Case No.: 20-CVS-1071 Judge: N. Hunt Gwyn Date of verdict: Feb. 4 Demand: $750,000 Highest offer: $15,000 Most helpful experts: Steve Farlow of Raleigh (accident reconstruction), J. Kent Ellington of Charlotte (medical), and Marcus Cook of Charlotte (medical) Insurance carrier: Travelers Attorney for plaintiff: Adrienne Blocker of DeMayo Law Offices in Charlotte Attorney for defendant: Kenneth Raynor of Raynor Law Firm in Charlotte

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 Apr il 11, 2022

Fighting stigma: A lawyer’s mental health journey ■ BY WENDY TANIS ROBBINS BridgeTower Media Newswires Anxiety is the most common mental health issue among the general population. Anxiety can range from being a protective response to a potential threat to being an overwhelming impediment that can lead to feeling overwhelmed or paralyzed. One factor that exacerbates the experience of unhelpful anxiety is being afraid to talk about it and feeling alone in the struggle. A powerful tool to fight that stigma is hearing real stories from lawyers who have felt that fear of stigma, persisted through it, and come out stronger on the other side. One such story is from Wendy Tamis Robbins.

— Shawn Healy, Lawyers Concerned for Lawyers I don’t remember living without anxiety. As a child, my first memories are of a world that was unsafe and unstable. I had my first panic attack when I was just 6 years old.

As I grew, so did my fear and isolation as the anxious thoughts became more intrusive and difficult to manage.

So, I started running and hiding. I ran as fast I could toward the achievements and accomplishments that would prove I was not broken. I thought external validation would calm the storm inside of me. I sprinted to outrun the dark ruminations in my mind and the physical toll they took on my body.

And I hid. I hid my broken pieces from others with destructive perfectionism, people-pleasing, and disordered eating. And I hid them from myself with disordered drinking and over-working.

The most obvious place I hid was right in broad daylight as a lawyer. No one looked at lawyers as broken. They were superheroes and saviors. They sought truth and found justice for what was broken: broken lives, broken companies, broken vows.

At first, these self-preservation practices worked to my advantage.

I was a four-sport all-star athlete with straight A’s and recruited to an Ivy League college.

After successfully hiding my in-

trusive thoughts, bouts of depression and suicide ideation, I entered law school. There I found others hiding just like me. We showed up early to spaces that would later be too populated for us. We sat in the back of class or at the end of the row near the door. We avoided eye contact with each other and professors.

We were the first to leave class and the last to leave the bar. At the time, we didn’t understand or appreciate the support we could have provided each other. Instead, we all made an unspoken pact to hide this dirty secret and avoid each other. Because each one of us was a reminder of the unbearable anxiety brewing just below the surface.

I hit a handful of rock-bottoms before joining my first law firm.

Therapy and medication were making my life manageable while still accommodating my anxiety daily. So, I kept running and pushing it away, convinced that when I reached my goal—the big law firm—I would be better.

But it was the opposite. When I hit the next rock bottom I became agoraphobic. Leaving the house, my safe place, became excruciating. I struggled to hide my condition at work, exacerbating my anxiety that much more. I could barely survive the commute on public transportation or in traffic, having several panic attacks before arriving to the office exhausted.

I panicked in meetings with clients and lunches with partners. I panicked in my office, alone with my own thoughts.

I remember as a second-year associate when the partner I worked closely with in the office next to mine committed suicide. No one discussed it openly or asked how we were doing. It was acknowledged with “God, how awful!” in the hallway, and then we walked back to our offices and kept working. The message was crystal clear.

So, I just kept running—to the next law firm, the better law firm, always looking outside of myself for a cure when it was inside of me all along. It wasn’t until I stopped running and started writing that I

found my freedom and chronicled that journey in my bestselling book, “The Box: An Invitation to Freedom from Anxiety.”

Now, as a speaker, coach and advocate within our industry, I’m painfully aware of the fact that I was never alone in this struggle.

We, as lawyers, are riddled with anxiety, depression and addiction because external success and achievements don’t make us impervious to the highly competitive, stressful and destructive environment we have cultivated. In fact, this environment creates and exacerbates our mental health issues at an alarming rate. Because of the stigma surrounding mental health, I couldn’t ask for the help I needed within my law firms, so I found it without them.

My story had a happy ending.

But many do not. If we are providing support that no one dares ask for because we are not promoting help-seeking behaviors without judgment or consequences, we are failing our people.

I’ve been a lawyer for 24 years now, and I hid my mental illness for 23 of them. In 2021, I came out to my colleagues and clients not knowing what the response or reaction would be. I had found my freedom and there was no going back. I was prepared to face the consequences.

To my surprise and delight, I was met with overwhelming support and compassion. And the doors I imagined shutting started opening all around me, with people on the other side who wanted to listen and share their own stories.

With every person I spoke to, either they suffered, a loved one did, or they feared for the well-being of their teams and fellow attorneys.

The last year of my journey has made it clear that people are desperate to talk about their struggles and find the support they need.

As I continue working with law firms to chip away at the stigma surrounding mental illness that is so engrained in our culture, my focus is to emphasize the need for more empathy, education and See Page 5 ►

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

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All you can do is be the best lawyer you can be ■ BY JESSICA MARKHAM BridgeTower Media Newswires I seem to recall litigating cases when I was a less seasoned attorney, and I took the losses much more to heart than I do now. You would think it would be the opposite, because now I am the first chair and the one that is responsible for strategy and execution.

However I felt every loss, however small, very deeply in the early years.

Losing a motion would quite literally keep me up at night, staring at the ceiling, unable to sleep. It would take a long time to shake even the smallest loss. It was even worse when I had a long winning streak that was suddenly and unexpectedly broken.

I think the reason this has changed is because I have realized how diffi-

cult it is to predict success in the beginning of a case. Moreover, you have little control over whether you get the “winning” party or the “losing” party as your client. Yes, of course, you can screen out people that seem completely unreasonable; however, by and large when you take a new client you probably have a 50-50 chance of ending up with the party who will not prevail at trial.

Sometimes the facts just aren’t on your side. Sometimes they are, and you lose anyway.

A colleague once gave me great advice that has stuck with me and I have often repeated it to my associates. He told me the best you can do is be the best lawyer you can be, do your job to the best of your ability and after that it is out of your hands.

I think that is true.

You have no control over the facts, the law and limited control over the judge’s interpretation of them, among other things. Sometimes the facts, however much you prepare, change or evolve up to the trial date.

As much as you will prepare, research and toil over a case, it is not your life, these are not your decisions or your consequences. Sometimes your client has made missteps and hurt their own case. Again, that’s out of your hands.

Do the best within the bounds of your job and ethical duties. If you have done that, even if you lost your case you should be able to go to sleep soundly that night. The sooner you realize this, the better off you’ll be.

Jessica Markham is the managing attorney at Markham Law Firm in Bethesda, Maryland.

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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 Ap ri l 11, 2022

Pass rates dip for first in-person bar exam since COVID ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com Results are in from February’s bar exam, and the state’s first inperson exam since the summer of 2020 saw 175 law graduates pass the exam, out of 348 who sat for it, for a pass rate of 50.3 percent.

The latest results continue a trend of fluctuating fortunes for the February exam. North Carolina began administering the Uniform Bar Exam in February 2019, and the pass rate leapt to 64 percent after several consecutive years well below 50 percent. But pass rates sank back down to 50 percent in 2020 before jumping back up again to 60 percent in 2021, which was also the first time the state ever administered the bar exam remotely due to the pandemic.

This year the state returned to giving the exam in person, and pass rates fell again, back in line with where they were two years ago. As

C o nt inu e d f r o m 4 ►

empowerment. Not just for those struggling, but for those who are not—the stakeholders and leaders who have the power and authority to make the changes we desperately need.

This topic needs to be moved from behind closed bathroom doors to the boardrooms where decisions are being made. When policies and

usual, there was a big gap between first-time test takers repeat test takers. Nearly 62 percent (130 of 210) of first-time examinees passed while just 32.6 percent (45 of 138) of those taking the bar for at least a second time did.

Despite the dip in the pass rate, North Carolina Board of Legal Examiners Executive Director Lee Vlahos said that the transition back to an in-person administration went smoothly and that she believes North Carolina is the first state to release exam results to applicants, which it did March 28.

“The Board is cognizant of successful applicants’ need to be licensed and able to begin practice without delay and is pleased to assist them in that regard,” Vlahos said.

Graduates of North Carolina law schools passed the exam at a rate of 52.1 percent (99 of 190), including 60.5 percent (69 of 114) of first-time examinees and 30 of 76 (39.5 per-

cent) of repeaters.

Duke Law School had the highest pass rate, 100 percent, though it sat just three examinees, all of whom took the test for the first time. The University of North Carolina School of Law’s 70.4 percent pass rate was second-best, with all 10 of its first-timers and nine of its 17 (52.9 percent) repeaters passing.

Nineteen of 30 (63.3 percent) Campbell Law School graduates passed the bar exam, including six of seven (85.7 percent) first-timers and 13 of 23 (56.5 percent) repeaters.

As has been the case in recent years, Elon Law University School of Law sat far more graduates than other schools because of its twoand-a-half year program. None of its four subsequent test-takers passed this time around, and 47 of its 85 (55.3 percent) first-timers passed, for a total pass rate of 52.8 percent.

Exactly half of Wake Forest Uni-

versity School of Law test-takers (three of six) passed, including one of three repeaters (33 percent) and two of three (66 percent) first-timers.

North Carolina Central University School of Law dropped nearly 20 percentage points from last winter’s exam, posting an overall 26.9 percent pass rate (seven of 26), including 30 percent of repeaters (six of 20) and 16.7 percent (one of six) of first-timers.

Nine graduates of the nowdefunct Charlotte School of Law sat for the exam, all of whom had taken the exam before. One examinee passed (11.1 percent).

Forty-eight percent (76 of 158) of examinees from law schools outside of North Carolina passed the exam, including 63.5 percent (61 of 96) of first-timers and 24.2 percent (15 of 62) of repeaters.

Follow Heath Hamacher on Twitter @NCLWHamacher

practices are not only endorsed, but embraced and modeled from the top down, we will see a shift in this culture of silence.

Because only when we shine a light in the darkness can we ensure all of our people are supported in becoming the best versions of themselves both personally and professionally. These should not only be human values, they should be our corporate, firm and profes-

sional values.

tees/professional-liability/lawyerassistance-programs/.

Wendy Tamis Robbins is senior counsel at Holland & Knight in Boston, and also works with individuals as an anxiety and wellness coach and provides programming and workshops for law firms dedicated to attorney well-being and ending the stigma surrounding mental health.

If you need help

For information on available resources and support to the legal community, contact Virginia Judges & Lawyers Assistance Program at (877) 545-4682 or visit http:// www.valhl.org/.

Programs nationwide can be found here: https://www.americanbar.org/groups/litigation/commit-

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6 / NEWS

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 11, 2022

DNA TESTING / DNA results could alter plea decision C o nt inu e d f r o m 1 ►

of a Norlina gas station manager in 1992. In 2016, he filed a motion to test the DNA and fingerprints on several .22-caliber shell casings and a projectile found at the gas station, alleging that an informant had told federal authorities that another man had admitted to committing the crime. The murder weapon was never recovered.

According to prosecutors, the issue has little to do with guilt or innocence because state law dictates that a defendant must show that test results would be material to his defense and that there is a reasonable probability that the evidence would have led to a more favorable verdict. As he accepted a guilty plea, the state reasoned, Alexander couldn’t make the necessary showing of materiality because he hadn’t presented a defense and couldn’t have gotten a more favorable verdict where a jury hadn’t issued one.

But the high court cited 2018’s State v. Randall, in which the Court of Appeals held that construing “verdict” in a strict legal sense, especially given the wording regarding a jury, might imply that DNA testing wouldn’t be available for a defendant convicted in a bench trial.

Court of Appeals Judge Chris Dillon wrote for the majority in that case that situations could reasonably arise where a defendant wouldn’t have

pleaded guilty or otherwise been convicted if he’d had the results of DNA testing when faced with the charges.

The high court agreed, noting that more than 22 percent of wrongfully convictions involve guilty pleas, including 13 people in North Carolina, eight of whom were exonerated based on DNA testing.

“An innocent person may plead guilty to the commission of a criminal offense for a number of perfectly understandable reasons,” Ervin wrote.

“For example, an innocent defendant may elect to plead guilty to avoid the risks and uncertainties associated with a trial that may result in a more severe sentence than the one offered by the prosecutor pursuant to a plea agreement.”

California attorney Evan Ballan wrote an amicus brief on behalf of The Innocence Network in which he suggested that Alexander pleaded guilty to avoid a death sentence. He called the decision a “watershed” result.

“The pressure to plead guilty is substantial in many criminal cases and even an innocent defendant will often conclude that a guilty plea is the more prudent path,” Ballan wrote.

“When the crime at issue is deathpenalty eligible (as it was in this case), the innocent defendant must make an impossible choice: falsely plead guilty and serve time in prison, or risk execution.”

But even though the court made clear that a defendant is entitled to post-conviction DNA testing in certain cases, it found that Alexander wasn’t. Ervin wrote that a materiality finding should be made based on consideration of the entire record and whether the defendant wouldn’t have pleaded guilty “and otherwise would not have been found guilty.”

Alexander argued that the court failed to consider facts concerning his decision to plead guilty, such as his repeated proclamations of innocence, his hesitance to plead guilty, his alleged alibi, and the key testimony of a “single highly impeachable purported eyewitness.” But the justices held that the appeals court could’ve considered the entire record without addressing “each and every” piece of evidence presented by Alexander.

The Supreme Court noted that the eyewitness, who knew Alexander, testified that he was one of two men she saw leaving the gas station after a “commotion,” and because evidence showed that more than one person was involved in the crime, the presence of someone else’s DNA on shell casings on the scene wouldn’t exonerate him of the killing.

“Aside from the fact that the State did not need to show that defendant handled the weapon from which the fatal rounds were fired in order to establish his guilt, proof of the presence

of third-party DNA on the shell casings and projectile would do nothing more than establish that, at some unspecified point in time, someone other than defendant touched these items, an event that could have happened before defendant or his accomplice obtained possession of the weapon or in the aftermath of the killing of Mr. Boyd at or before the time that the items were taken into the possession of the investigating officers,” Ervin wrote.

Chief Justice Paul Newby wrote a concurring opinion joined by Justice Tamara Barringer. Newby would have held that a defendant who pleads guilty can’t prevail on a postconviction motion to test DNA. Justice Anita Earls also wrote a concurring opinion. Earls would have held that a defendant doesn’t need to exculpate himself in order to establish his entitlement to DNA testing.

Justice Phil Berger didn’t participate in the consideration of decision of the case.

Assistant Attorney General Kristin Uicker represented the state. Assistant Appellate Defender Anne Gomez represented the defendant.

The 70-page decision is State v.

Alexander (Lawyers Weekly No. 010024-22). The full text of the opinion is available online at nclawyersweekly. com.

Follow Heath Hamacher on Twitter @NCLWHamacher

ENHANCEMENT / Novel question, but law’s language clear C o nt inu e d f r o m 1 ►

“By its plain language, [the applicable law] applies to those defendants convicted of and sentenced for a Class B1 through E felony that is a reportable conviction subject to the sex-offender registry requirement, rather than those convicted of a lower-level felony who happen to be sentenced at a Class B1 through E level due to a habitual-felon status enhancement,” Judge Valerie Zachary wrote.

The state’s appellate courts had never considered this precise question before, but the state argued that the appeals court should find persuasive the 2004 North Carolina Supreme Court decision in State v. Jones, in which the high court considered state

law providing that possession of certain controlled substances is a Class 1 misdemeanor, but that possession of cocaine is punishable as a Class I felony.

The Jones court found that the specific reference to cocaine controlled over the general misdemeanor provision and, as such, didn’t simply denote a sentencing classification but dictated that a conviction for possession of the substances listed including cocaine was elevated to a felony classification for all purposes.

“In the instant case, however, we are not presented with a conflict between two statutory provisions—one general and one specific—which the traditional rules of statutory interpretation would guide us to resolve

by favoring the specific provision as an exception to the general. Thus, the State’s reliance on Jones is misplaced,” Zachary wrote.

Instead, the court was persuaded by its own rulings, including 2013’s State v. Gardner in which it held that the fact that “a defendant has been sentenced as a Class C felon … does not mean that the actual, underlying offense is transformed into a Class C felony.” And in 1998, the appeals court found in State v. Vaughn that the trial court erroneously considered a Class C sentence to be a Class C conviction (the defendant was convicted of a Class H felony but subject to enhanced sentencing as a habitual offender) for purposes of calculating the prior record level.

“And just as in Vaughn, the habitual-felon sentencing enhancement did not convert the lower-level felony for which Defendant was convicted into the higher-level felony for which he was punished,” Zachary wrote.

Judges Lucy Inman and Jeff Carpenter concurred in the decision.

Assistant Attorney General Heather Freeman represented the state.

Lauren Miller of N.C. Prisoner Legal Services represented the defendant.

Miller declined to comment on the record.

The 12-page decision is State v. Essick (Lawyers Weekly No. 011-054-22).

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

Follow Heath Hamacher on Twitter @NCLWHamacher

OBJECTION / Court explains who should bear what burdens C o nt inu e d f r o m 1 ►

that the class members hadn’t given sufficient weight to the specific allegations it had made while the class was negotiating the settlement.

The district court continued its final fairness hearing and allowed the Allen Trust to conduct discovery. Following the interim discovery, the court concluded the hearing and overruled the Allen Trust’s objection, certifying the class for purposes of settlement as fair, reasonable and adequate.

The Allen Trust appealed. Writing for the 4th Circuit in its March 15 opinion, Judge Diana Gribbon Motz affirmed, finding that the district court didn’t abuse its discretion either in certifying the class or approving the settlement. “‘Because a district court possess greater familiarity and expertise than a court of appeals in managing the

practical problems of a class action, its certification decision is entitled to ‘substantial deference,’ especially when the court makes ‘well-supported factual findings supporting its decision,’” Motz wrote. “This case, chockfull of the most esoteric principles of life insurance accounting imaginable, could be the poster child for that rule.

The district court did a commendably careful job in evaluating the Allen Trust’s arguments and determining that they did not justify refusing to certify the class. It did not abuse its discretion in doing so.”

Motz took the opportunity to explain “who bears what burdens when a class member objects to a proposed settlement,” something that had not been previously done by the 4th Circuit.

An objector to a class settlement must state the basis for its objection with enough specificity to allow

the parties to respond and the court to evaluate the issues at hand, Motz said. Next, the parties propounding the settlement—in addition to bearing the initial burden to satisfy the Rule 23(a) and (e)(5) requirements— must show that the objection doesn’t demonstrate that the proposed settlement fails one of those requirements.

At all times the district court remains a fiduciary of the class, Motz said, and must protect the class’s interests, both from parties and counsel overeager to settle, and also from frivolous objectors.

“Upon a review of the record, we do not understand the district court to have done anything different than what we have just outlined,” Motz wrote. “The court required the Allen Trust to specify and support its objection, while keeping the ultimate burden on the proponents of the settlement to demonstrate its fairness.

Thus, the Allen Trust’s argument that the court improperly placed upon it the burden of overcoming the settlement provides no basis for reversal.”

Motz then addressed the Allen Trust’s argument that the district court abused its discretion by certifying the class. The Allen Trust contended that its allegations against Banner were different enough to defeat the requirement all class members’ claims must generally involve common questions of fact and law.

“But upon closer examination, the Allen Trust’s and [class] claims are two sides of the same coin,” Motz wrote. “The difference, such as it is, turns on when the plaintiffs would have to pay the allegedly unlawful charges. The [class] had been paying them on a rolling basis, going above and beyond the guaranteed minimum See Page 23 ►

OPINION DIGESTS / 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 Ap ri l 11, 2022

Opinions N.C. SUPREME COURT

7

N.C. COURT OF APPEALS

N.C. SUPREME COURT

Domestic Relations Parent & Child – Termination of Parental Rights – Domestic Violence Where the trial court found that the respondent-mother had made insufficient progress in addressing domestic violence issues, had made minimal efforts to remain in contact and develop a relationship with daughter “Tammy,” and lacked appropriate housing, the trial court’s findings support its determination that there is a likelihood of repetition of neglect.

Combined with Tammy’s prior adjudication as a neglected juvenile, this likelihood of further neglect if the child were returned to respondent’s custody supports the trial court’s conclusion that grounds existed to terminate respondent’s parental rights pursuant to G.S. § 7B-1111(a)(1).

After review of issues identified in the no-merit brief filed by the respondent-father’s counsel, we affirm the termination of both respondents’ parental rights.

In re T.B. (Lawyers Weekly No. 010-030-22, 19 pp.) (Robin Hudson, J.) Appealed from Mecklenburg County District Court (Donald Cureton, J.) Laura Kaiser Anderson for petitioner; Chelsea Barnes for guardian ad litem; Anné Wright and Peter Wood for respondents.

2022-NCSC-43

Domestic Relations Parent & Child – Termination of Parental Rights – Civil Practice – Service of Process – Jurisdiction – Nonresident Respondent Pursuant to our caselaw, any deficiencies in the issuance and service of the summons in neglect and termination-of-parental-rights (TPR) proceedings do not affect the trial court’s subject matter jurisdiction; instead, such deficiencies implicate personal jurisdiction. In re K.J.L., 363 N.C. 343, 677 S.E.2d 835 (2009). A parent’s status as a nonresident does not change this law and where, as here, the nonresident respondent-father participated in the TPR proceedings without raising an objection to the trial court exercising personal jurisdiction, he waived any argument of insufficient service of process.

We affirm the termination of respondent’s parental rights.

In re A.L.I. (Lawyers Weekly No. 010-031-22, 8 pp.) (Paul Newby, C.J.) Appealed from Wilkes County District Court (William Brooks, J.) Mary McCullers Reece for respondent; no brief filed for petitioner or guardian ad litem.

2022-NCSC-31

9

N.C. BUSINESS COURT

Domestic Relations Parent & Child – Termination of Parental Rights – Potential Relative Placement “Heather’s” father did not mention his Maryland cousin to DSS during the initial abuse, neglect and dependency stage of these proceedings, while DSS was considering possible placements of Heather with several relatives, none of which turned out to be suitable. At that stage, the Juvenile Code requires the trial court to consider whether a relative placement is available”; however, at the termination of parental rights stage, the trial court is not expressly directed to consider the availability of a relative placement.

Where the trial court found that the Maryland cousin and his wife, who had never met Heather, “would make suitable caretakers and custodians of the juvenile,” but that (1) there was a strong, loving bond between Heather and her foster mother; (2) the likelihood of adoption was “exceptionally high”; and (3) Heather “had behavioral issues when she came into care” but those issues had improved while she lived with her foster mother, the trial court balanced the goal of preserving Heather’s ties with her relatives against the goal of achieving permanence for Heather. The trial court was not required to prioritize placement with the Maryland cousin.

We affirm the termination of respondent’s parental rights.

In re H.R.S. (Lawyers Weekly No. 010-032-22, 14 pp.) (Paul Newby, C.J.) Appealed from Stokes County District Court (Thomas Langan, J.) Jennifer Oakley Michaud for petitioner; James Freeman for guardian ad litem; Robert Ewing for respondent. 2022-NCSC-36

Domestic Relations Parent & Child – Termination of Parental Rights – Stipulations – Drug Use The respondent-father stipulated as to the circumstances supporting the grounds for termination of his parental rights, and he sought to be heard only as to the best-interests determination. On appeal respondent asserts that the trial court improperly relied on his stipulation, which amounted to an impermissible stipulation to conclusions of law. However, as viewed properly, respondent’s stipulation related to factual circumstances surrounding the grounds for termination.

Even though respondent was not responsible for “Monica’s” initial placement with DSS, respondent stipulated that Monica had previously been adjudicated neglected, which stemmed from Monica testing positive for controlled substanc-

17

N.C. COURT OF APPEALS, UNPUBLISHED

18

es at birth. Despite this history, after respondent presented himself as Monica’s father, he continued to use controlled substances, contrary to the recommendations from his parenting capacity assessment.

Respondent also failed to recognize the severity of his continuous drug abuse and was repeatedly dishonest with the trial court about his continued cocaine use. As such, the trial court properly terminated respondent’s parental rights based upon neglect.

Affirmed.

In re M.S.L. (Lawyers Weekly No. 010-033-22, 14 pp.) (Paul Newby, C.J.) Appealed from Forsyth County District Court (Denise Hartsfield, J.) Theresa Boucher for petitioner; Maya Madura Engle for guardian ad litem; Benjamin Kull for respondent. 2022-NCSC-41

the trial court did not announce that it was using such a standard, either in open court or in its written order. In fact, the written order says the trial court’s findings were made based on a preponderance of the evidence.

We reverse the termination of respondents’ parental rights and remand for the trial court to review and reconsider the record by applying the clear, cogent and convincing evidence standard to make findings of fact.

In re J.C. (Lawyers Weekly No. 010-035-22, 15 pp.) (Michael Morgan, J.) Appealed from Swain County District Court (Kristina Earwood, J.) Justin Greene for petitioner; Jonathan Townsend and Theresa Sprain for guardian ad litem; Edward Eldred and Lee Gilliam for respondents. 2022-NCSC-37

Domestic Relations

Domestic Relations

Parent & Child – Termination of Parental Rights – Relationship with Abuser – Drug Use

Parent & Child – Termination of Parental Rights – Dependency – Mental Incapacity

The respondent-mother maintained her relationship with the father of her children even after he seriously abused their infant daughter, and two of those children tested positive for controlled substances when they were born during the pendency of this action. Although respondent attended substance abuse classes, she left early and tested positive for controlled substances again (when she gave birth to one of the children). The two children who are the subject of these proceedings have remained in placements outside respondent’s care for well over a year, and she only sporadically called DSS to check on them.

Finally, respondent was not employed, did not have stable housing, and had gone to very few parenting classes. These facts support the trial court’s conclusion that respondent willfully left the children in a placement outside the home and failed to make reasonable progress to correct the conditions that led to the children’s removal.

We affirm the termination of respondent’s parental rights.

In re L.D. (Lawyers Weekly No. 010-034-22, 18 pp.) (Paul Newby, C.J.) Appealed from Scotland County District Court (Christopher Rhue, J.) Quintin Byrd for petitioner; Michelle FormyDuval Lynch for guardian ad litem; Wendy Sotolongo and Jacky Brammer for respondent.

2022-NCSC-40

Although there was evidence that the respondent-father had exercised all of his scheduled visitations with the children, during which he demonstrated safe parenting skills, the trial court found that respondent suffered from severe mental infirmities which demonstrably impaired his ability to reason, plan, exercise judgment, think abstractly, and problem solve. The trial court made uncontested findings that (1) at the time of the termination hearing, respondent suffered from debilitating mental infirmities which rendered him incapable of providing care for “James” and “Amy” such that the children were dependent as defined

by G.S. § 7B-101(9); (2) the children lacked an appropriate alternative child-care arrangement; and (3) respondent’s incapacity is expected to continue for the foreseeable future.

Therefore, grounds existed to terminate respondent’s parental rights under G.S. § 7B-111(a)(6).

Affirmed.

In re J.I.G. (Lawyers Weekly No. 010-036-22, 14 pp.) (Michael Morgan, J.) Appealed from Forsyth County District Court (Denise Hartsfield, J.) Melissa Starr Livesay for petitioner; Mary Cavanagh and Jordan Spanner for guardian ad litem; Robert Ewing for respondent.

2022-NCSC-38

Domestic Relations

Parent & Child – Termination of Parental Rights – Parental Bond

Parent & Child – Termination of Parental Rights – Standard of Proof

Although 11-year-old “Sarah” had a bond with the respondent-parents, the trial court could find that the bond was unhealthy, given evidence of sexually inappropriate boundaries, inappropriate discipline, and grooming behaviors that led Sarah

In order to terminate parental rights, the trial court must make its findings based on clear, cogent and convincing evidence. In this case,

Domestic Relations

8 / OPINION DIGESTS to form negative attachments to respondents that are not conducive to her overall well-being and safety.

We affirm the trial court’s termination of respondents’ parental rights.

Under G.S. § 48-3-601(a)(1), a child who is at least 12 years of age must consent to be adopted. However, since a trial court may waive this requirement, we find no prejudicial error in the trial court’s refusal to allow a line of inquiry into whether DSS would consider Sarah’s feelings on adoption when she turned twelve.

Adoption was the primary plan for Sarah, and termination of respondents’ parental rights was a necessary precondition of Sarah’s adoption. The respondent-father cites no authority for his assertion that G.S. § 7B-1110(a)(3) required the trial court to address the secondary plan of guardianship before terminating respondents’ parental rights.

Moreover, there was no evidence that it was in Sarah’s best interests to appoint a guardian for her while leaving respondents’ parental rights intact. The trial court established a primary permanent plan of adoption based on respondents’ failure to acknowledge and remedy the issues that led to Sarah’s removal from their home. Respondent-father argued at the hearing that the alternate permanent plan of guardianship without a termination of parental rights would allow respondents to “continue to be a positive influence on [Sarah’s] life.” However, the evidence showed that, despite the love Sarah and respondents had for each other, respondents were not a positive influence in her life, and adoption rather than guardianship was in her best interests.

Despite Sarah’s age and past behavioral issues, the trial court’s finding that she is likely to be adopted is supported by competent evidence, including improvements in her behavior as her living situation and mental health providers stabilized in the months leading up to the termination hearing. There was also evidence of Sarah’s positive and trusting bond with her foster mother and how Sarah was opening up and seeking affection, something she had not done in her earlier placements. It was within the trial court’s discretion to view Sarah’s likelihood of adoption as a fact favoring termination of respondents’ parental rights.

The evidence provides ample basis for the trial court’s findings that Sarah continued to experience guilt arising from a distorted sense of loyalty to respondents, who refused to acknowledge the injurious environment they created for Sarah while she was in their care. The evidence also demonstrates the distinction between Sarah’s unhealthy tendency to avoid upsetting respondents and her growing openness to and desire to please her foster mother, who “provides [Sarah] with a safe, nurturing, and structured loving and structured home environment.”

The trial court’s findings are consistent with the evidence received by the trial court regarding Sarah’s bond with respondents and the negative impact of the relationship on Sarah’s emotional development and well-being.

Affirmed.

In re S.M. (Lawyers Weekly No. 010-037-22, 30 pp.) (Anita Earls, J.) Appealed from Durham County Dis-

trict Court (Doretta Walker, J.) Derrick Hensley for petitioner; Brendan Bailey and Ashley Edwards for guardian ad litem; Kathleen Joyce and Benjamin Kull for respondents.

2022-NCSC-42

Domestic Relations Parent & Child – Termination of Parental Rights – Poverty – Mental Health Although the respondent-mother argues that the trial court impermissibly terminated her parental rights because it failed to consider the extent to which her inability to care for “Damion” was due to her being impoverished, the record shows that it was respondent’s failure to make reasonable efforts to complete her case plan, rather than her lack of financial resources, that was the basis of the trial court’s order. As examples, (1) respondent attended very few medical appointments or visits with Damion, even though social workers consistently offered her transportation and (2) respondent quit her job at Taco Bell in January 2019, began working at an assisted living facility in May 2019, but, at the time of the trial court’s 27 May 2021 termination order, had been unemployed since the birth of her youngest child in March 2020. The trial court’s findings demonstrate that respondent could have sought to comply with the requirements of her case plan even while having otherwise insufficient monetary resources.

We affirm the termination of respondent’s parental rights.

In re D.D.M. (Lawyers Weekly No. 010-038-22, 11 pp.) (Anita Earls, J.) Appealed from Catawba County District Court (Clifton Smith, J.) Maranda Stevens for petitioner; Michelle FormyDuval Lynch for guardian ad litem; Richard Croutharmel for respondent. 2022-NCSC-34

Domestic Relations Parent & Child – Termination of Parental Rights – Neglect – Likelihood of Repetition “Andrew” had not been in the respondent-father’s care for two years, and respondent spent part of that time incarcerated. Nevertheless, the record supports the trial court’s determination that it was likely that Andrew would be neglected again if the were returned to respondent’s care. One of the reasons for Andrew going into foster care was the filthy condition of respondent’s home. After his release from incarceration, respondent told a social worker he would contact her after he finished “fixing up” his home, but he never did so and ignored the social worker’s attempts to contact him about a home assessment. Moreover, respondent was given the opportunity to attend parenting classes both while he was incarcerated and after his release, but he failed to do so.

We affirm the trial court’s termination of respondent’s parental rights.

In re A.E.S.H. (Lawyers Weekly No. 010-039-22, 15 pp.) (Anita Earls, J.) Appealed from Henderson County District Court (Mack Brittain, J.) Susan Davis for petitioner; John Cobb for guardian ad litem; David Perez for respondent. 2022NCSC-30

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Domestic Relations Parent & Child – Termination of Parental Rights – Trauma – Improved Behavior The respondent-father challenges the trial court’s finding that “Rob’s” therapy addressed trauma from his life before foster care.” The testimony in the record does not expressly reflect that Rob’s therapy addressed trauma from his life before foster care, but this is a reasonable inference by the trial court based on the evidence. The unchallenged adjudicatory findings of fact reflect Rob’s continued exposure to methamphetamine when in the care of his mother, that a physical altercation occurred between Rob’s half-brother and his mother’s boyfriend, and the absence of respondent due to his incarceration for felony drug convictions. Therefore, in light of the evidence before the trial court, we are bound to this finding and cannot disturb it on appeal.

We affirm the termination of respondent’s parental rights.

Respondent also contests the trial court’s finding that Rob’s behavioral issues “have improved significantly since coming [into DSS] custody.”

However, the evidence shows that, when Rob came into DSS custody, he was nine, had aggressive and violent tendencies, and had been suspended from school and riding the bus. He was diagnosed with attention deficit hyperactivity disorder.

Rob’s first relative placement could not meet his needs. Although Rob made significant progress with a second relative placement, a special education teacher, that placement ended when a family member needed hospice care.

Thereafter, Rob was moved to a therapeutic foster home, where he received trauma-focused therapy.

When asked whether Rob’s behavior stabilized after being transferred to a therapeutic foster home, a social workers answered in the affirmative. The social worker explained that the first couple of months went really well and that most of Rob’s behavioral issues have been school related. Rob also got along well with a ten-year-old child at his therapeutic foster home. Additionally, Rob had not been suspended from school since he came into foster care.

Given this evidence, the trial court could find that Rob’s behavioral issues “have improved significantly since coming [into DSS] custody.”

Affirmed.

In re K.N.L.P. (Lawyers Weekly No. 010-040-22, 15 pp.) (Tamara Barringer, J.) Appealed from Henderson County District Court (Emily Cowan, J.) Sara Player for petitioner; Sloan Carpenter and Kyle Musgrove for guardian ad litem; Edward Eldred for respondent. 2022NCSC-39

Domestic Relations Parent & Child – Termination of Parental Rights – Custody Order Petitioners began caring for “Daniel” because of his parents’ neglect. By the time petitioners sought termination of the respondent-father’s parental rights, a civil order already granted them custody, so respondent would have had to show a change of condition before he could

obtain custody of Daniel. This fact has no bearing on whether petitioners showed a likelihood of repetition of neglect if Daniel were returned to respondent’s care.

We affirm the termination of respondent’s parental rights.

The trial court assesses the fitness of the parent to care for the child at the time of the terminationof-parental-rights proceeding when determining a probability of repetition of neglect. Further, the applicable statutes do not deem the fitness necessary for a parent to regain custody of a child relevant to a determination of neglect under G.S. § 7B1111(a)(1). Notably, the applicable statutes use the present or present perfect tense – not the future – and make no mention of the fitness necessary for a parent to regain custody of their child.

In re D.I.L. (Lawyers Weekly No. 010-041-22, 7 pp.) (Tamara Barringer, J.) Appealed from Yadkin County District Court (David Byrd, J.) Clark Fischer for petitioners; no brief for guardian ad litem; Peter Wood for respondent. 2022-NCSC35

Domestic Relations Parent & Child – Termination of Parental Rights – Likelihood of Repeated Neglect – Lack of Comprehension – Assistance of Others Even if the respondent-mother were to rely on others for assistance in caring for her children, the trial court must assess the fitness of the parent herself, not others, since the parent retains ultimate authority over the children. At the time of the termination-of-parental-rights hearing, respondent lacked the ability to understand (1) the past neglect her children suffered while in her care (unstable, unsuitable and filthy housing as well as exposure to pornography and domestic violence) and (2) how to keep the children safe from harm through proper care, supervision, discipline, and provision of a living environment not injurious to their welfare. As a result of respondent’s intellectual disabilities, she lacked this ability at the time of the hearing; accordingly, the trial court properly found a likelihood of repetition of neglect.

We affirm the termination of respondent’s parental rights.

In re V.S. (Lawyers Weekly No. 010-042-22, 13 pp.) (Tamara Barringer, J.) Appealed from Bertie County District Court (Turner Stephenson, J.) Jay Anthony Audino for petitioner; Michelle FormyDuval Lynch for guardian ad litem; Wendy Sotolongo and Annick Lenoir-Peek for respondent. 2022-NCSC-44

Domestic Relations Parent & Child – Termination of Parental Rights – Past Neglect – Noncustodial Parent Even though the respondentfather had never had custody of “Carl,” since there had been a prior adjudication of neglect, the trial court did not err in finding past neglect in this case.

In its disposition order, the trial court found, “While [respondent] obviously loves [Carl], he is not in a position to meet [Carl’s] needs in a safe, nurturing, and stable environment.”

The trial court also found that Carl

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had a “very” strong bond with his foster parents, having spent most of his life with them. These findings show that the trial court considered Carl’s bond with his father before determining that termination of respondent’s parental rights was in Carl’s best interests.

We affirm the termination of respondent’s parental rights.

In re C.S. (Lawyers Weekly No. 010-043-22, 11 pp.) (Tamara Barringer, J.) Appealed from Carteret County District Court (Clinton Rowe, J.) Stephanie Sonzogni for petitioner; William Esser for guardian ad litem; Jeffrey Miller for respondent. 2022-NCSC-33

Domestic Relations Parent & Child – Termination of Parental Rights – Best Interests – Coronavirus Restrictions The respondent-father contends that the trial court abused its discretion by failing to consider the impact that coronavirus restrictions had on his housing and employment as a “relevant factor” in its best interest analysis. However, although respondent was laid off from employment at a restaurant due to coronavirus restrictions, respondent admitted that his income increased after he was laid off and that he could have worked but chose not to. Although coronavirus restrictions may have affected respondent’s housing and employment situations, respondent acknowledged that he did not have a plan for his family and that it could take up to a year to obtain a suitable residence. Respondent has not shown an abuse of discretion.

We affirm the termination of respondent’s parental rights.

In re A.N.D. (Lawyers Weekly No. 010-044-22, 10 pp.) (Philip Berger, J.) Appealed from Wake County District Court (V.A. Davidian, J.) Mary Boyce Wells for petitioner; Michelle FormyDuval Lynch for guardian ad litem; Leslie Rawls for respondent. 2022-NCSC-32

N.C. COURT OF APPEALS

Criminal Practice Search & Seizure – License Retention – Additional Deputies Body camera footage from defendant’s parking-lot encounter with deputies shows indications that she was seized—a deputy directs defendant to tell the niece she was planning to meet to drive over to where the deputy was parked next to the vehicle defendant was driving—and that she was in fact seized at some point, given that (1) the deputy took defendant’s driver’s license so he could determine whether she was the person he was looking for and (2) two other uniformed deputies came to the scene. Clearly, once the deputy determined that defendant was not the person he was looking for, he returned to defendant’s car, and he held onto her license, defendant remained seized, as she would not have felt free to ignore the deputy and leave, even with her niece.

The initial justification for the seizure ended 50 seconds before one of the backup deputies saw a baggie of drugs through a hole in defendant’s pocket.

We vacate the trial court’s order denying defendant’s motion to suppress. We remand to the trial court to make additional findings concerning whether there was any other justification for the deputies to extend the seizure for fifty (50) seconds beyond the time the first deputy re-approached defendant’s car or, otherwise, whether any exception to the exclusionary rule might apply. If not, the trial court will allow defendant’s motion to suppress and strike defendant’s conditional guilty plea.

State v. Mullinax (Lawyers Weekly No. 011-067-22, 14 pp.)

(Chris Dillon, J.) (Donna Stroud, C.J., concurring in result only without separate opinion) Appealed from Cleveland County Superior Court (Thomas Davis, J.) Robert Pickett for the state; Shelly Bibb DeAdder for defendant. 2022-NCCOA-165

Municipal Subdivision Roads – Civil Practice – Mandatory Injunction – Prior Appeal The parties have a long history of disagreement about exactly how to bring the roads of the defendant-developers’ subdivision into compliance with North Carolina Department of Transportation (DOT) standards.

The trial court recognized this disagreement but failed to resolve the dispute when it ordered the developers “to submit to the [plaintiff] Town a proposed plan to bring [the subdivision] streets into compliance with NCDOT standards.” As the order is written, the developers cannot know exactly what DOT standards have not been met and what repairs the developers must make to bring the subdivision roads into compliance.

We affirm in part, but we reverse the trial court’s attorney’s fee order, and we remand the mandatory injunction for further findings of fact identifying the specific DOT standards that the developers have failed to meet and to provide a specific decree for repairs necessary to bring the subdivision roads into compliance.

Background

The developers sought to turn over maintenance of their subdivision’s roads to the town. Instead of accepting the roads, the town issued a notice of violation because the roads failed to meet DOT standards.

The developers challenged the notice of violation in court and lost at all levels. Nevertheless, the developers failed to bring the subdivision roads up to DOT standards, and the town assessed civil penalties based on the developers’ failure to make the repairs. The town brought this action to require the developers to repair the roads.

Civil Penalties

Based on this court’s decision in a prior appeal, the town had the authority by local ordinance to issue civil penalties for the developers’ failure to comply with the trial court’s prior judgment.

The town’s ordinance provides for appeal of a notice of violation. It does not, however, establish a right to appeal civil penalties.

The developers unsuccessfully appealed the judgment arising from the initial notice of violation. Pursuant to the town’s ordinances, no other avenue was available to the developers to challenge the town’s enforcement of that judgment in the

form of civil penalties.

The trial court did not err by awarding summary judgment for civil penalties in the town’s favor.

Mandatory Injunction & Abatement

Our dissenting colleague asserts that the developers’ obligation to maintain the subdivision roads has not yet been established. This question was settled by this court’s prior opinion on this issue, and we cannot revisit it.

The town’s past communication with a DOT engineer about the street maintenance takeover process cannot relieve the developers of their obligation to maintain the subdivision roads, as it has been previously determined by this court on the same record relied upon by our dissenting colleague.

The record reveals the parties have a long history of disagreement about exactly how to bring the roads in compliance with DOT standards.

The trial court recognized this disagreement could give rise to “a disputed fact[,] ... that [the developers] made an effort to correct these [roads] and they’re now where they should be.” Nevertheless, the trial court failed to resolve this dispute.

The trial court’s order requires the developers “to submit to the Town a proposed plan to bring [the development] streets into compliance with NCDOT standards.” As written, the developers cannot know from the terms of the order itself exactly what the court is ordering them to do, namely what DOT standards have not been met and what repairs the developers must make to bring the development roads into compliance. The order must identify which DOT standards are at issue and what repairs are sufficient to bring the roads into compliance.

Attorneys’ Fees

The town was not authorized to impose penalties between 14 October 2016 and 8 June 2017, while the developers’ first lawsuit was on appeal.

The town’s agreement to dismiss the penalties imposed upon the developers from 14 October 2016 to 8 June 2017 during the pendency of the first appeal does not relieve the town of its liability for the developers’ attorney’s fees incurred contesting those penalties. We reverse the order denying the developers’ motion and remand to the trial court to determine and make appropriate findings regarding what attorney’s fees the developers reasonably incurred in challenging the civil penalties imposed during the pendency of their first appeal.

Affirmed in part, reversed in part, and remanded.

Dissent

(Tyson, J.): The town wrote DOT engineer Ritchie Hearne on 19 January 2006 stating that the town was “‘willing to take the [subdivision] streets ... into the Town with some verification from you. [We request] a letter from you stating that the roads ... are built to NCDOT standards. When we receive this letter, we will proceed with adoption of said streets.’”

The real issue appears to be who is responsible for the repairs and maintenance for the normal wear and tear to the streets in the subdivision since Hearne’s letter dated 25 April 2006. If repairs were needed to meet DOT standards on that date,

those would be the developers’ responsibility. The town had expressly agreed to be bound by Hearne’s determination of the developers’ compliance with DOT standards, which he certified, and to accept maintenance of the streets. The record does not show that the town inspected the development and provided the developers with a list of items that needed to be corrected, until over eight years later.

The town has collected ad valorem taxes from the developers and the property owners of the subdivision since bringing the subdivision into the town’s limits. The town cannot now shirk its maintenance and repair obligations for normal wear and tear to the streets and shift them onto the developers. Those obligations and costs are rightfully the town’s responsibility.

Town of Midland v. Harrell (Lawyers Weekly No. 011-068-22, 42 pp.) (Lucy Inman, J.) (John Tyson, J., concurring in part & dissenting in part) Appealed from Cabarrus County Superior Court (Martin McGee, J.) Anthony Fox and La-Deidre Matthews for plaintiff; James Scarbrough for defendants. 2022-NCCOA-167

Civil Practice Judgments – Default Judgment Renewal – Underlying Interest Rate In this action to renew a 2010 default judgment against her, defendant argues that the 23.99-percent interest rate charged on her debt between 2008 and 2010 violates G.S. § 24-1. However, usury is an affirmative defense and must be pleaded. Defendant did not attack the 23.99-percent interest rate prior to entry of the 2010 default judgment on 25 February 2010. As defendant failed to raise the defense of usury to the 2010 default judgment in a timely manner, she cannot now present this defense before this court.

We affirm summary judgment for the plaintiff-judgment creditor.

The outstanding debt plus 23.99 percent interest was settled by the 2010 default judgment and is now the debt of record. This 2019 action simply renewed the existing judgment declaring that plaintiff is entitled to an established amount.

Defendant cannot assert usury as an affirmative defense to the 2019 action on a judgment.

Where defendant does not allege that she was deprived of the opportunity to present her case to the court, and where she instead alleges the submission of inadmissible materials to the trial court, defendant is alleging intrinsic rather than extrinsic fraud. N.C. R. Civ. P. 60 gave her a year to file a motion alleging such fraud. Defendant’s attack on the 2010 default judgment was filed more than nine years after entry of the judgment, so it is time-barred.

The Consumer Economic Protection Act of 2009 became effective October 1, 2009, and applies to debt collection actions “filed on or after that date.” Plaintiff’s action was filed in August 2009, so the CEPA does not apply to it.

Plaintiff’s 2019 action to renew its 2010 default judgment is a new, distinct action. Because the original debt has merged into the judgment, this is not an action on the credit account that plaintiff purchased but rather an action on a judgment.

10 / OPINION DIGESTS Thus, the present action does not implicate the heightened pleading requirements of the CEPA. Affirmed.

Unifund CCR Partners v.

Young (Lawyers Weekly No. 011069-22, 17 pp.) (Allegra Collins, J.) Appealed from Wake County District Court (Ned Mangum, J.) Andrew Hoke for plaintiff; Jerome Hartzell for defendant. 2022-NCCOA-168

Real Property Restrictive Covenants – Amendment – Planned Community – Spouses’ Consent – Chickens as Pets In 2020, the restrictive covenants of the parties’ community, Sleepy Hollow, were amended to allow the keeping of up to five chickens. But the recorded document before the trial court said the amendment was adopted by “written agreement.”

Therefore, since a restrictive covenant is an encumbrance on land, in order to count a lot as a “yes” vote, all owners of the lot were required to assent to the amendment. Because plaintiffs contend that some of the signers own their lots as tenants by the entireties with their respective spouses, we cannot say that the trial court abused its discretion in refusing to relieve defendants of the court’s 2019 order—enjoining defendants from keeping their four chickens—based on the 2020 amendment.

We affirm the trial court’s denial of defendants’ N.C. R. Civ. P. 60 motion. However, we vacate summary

judgment for plaintiffs based on the original (1998) covenant.

1998 Covenant

Defendants keep four hens in a coop on their Sleepy Hollow property. The trial court agreed with plaintiffs that defendants are therefore in violation of a 1998 restrictive covenant: “No animals, livestock or poultry of any kind shall be raised, bred or kept on the building site, except that dogs, cats or other household pets may be kept, provided that they are not bred or maintained for any commercial purpose.”

However, while the first clause of the 1998 covenant forbids the keeping of any “animals,” the second clause clearly allows the keeping of animals, so long as they are “household pets” and otherwise not used for a commercial purpose. In the same way, where the first clause forbids the keeping of “poultry,” the second clause could be reasonably read to allow poultry—which, we note, are animals—kept as “household pets” and otherwise not kept for any commercial purpose.

There is a genuine issue as to whether defendants keep their hens as household pets and not otherwise for any commercial purpose. We vacate the trial court’s 2019 summary judgment order.

2020 Amendment

In 2020, as required by G.S. § 47F-2-117, owners of more than 67 percent of the lots in Sleepy Hollow voted to amend their restrictive covenants to allow lot owners to keep up to five chickens. Based on

PUBLIC NOTICE REGARDING REAPPOINTMENT OF INCUMBENT UNITED STATES MAGISTRATE JUDGE ROBERT T. NUMBERS, II. FOR THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA The current term of office of United States Magistrate Judge Robert T. Numbers, II at Raleigh, North Carolina, is due to expire on December 7, 2022. The United States District Court for the Eastern District of North Carolina is required by law to establish a panel of citizens to consider the reappointment of U.S. Magistrate Judge Numbers to a new eight-year term.

The duties of a magistrate judge in this court are demanding, wide-ranging, and may include: (1) conducting of most preliminary proceedings in criminal cases; (2) presiding over the trial and disposition of misdemeanor cases; (3) conducting of various pretrial matters and evidentiary proceedings on delegation from the judges of the district court; and (4) presiding over trial and disposition of civil cases upon consent of the litigants. The basic authority of a United States magistrate judge is specified in 28 U.S.C. § 636.

Comments from members of the bar and the public are invited as to whether U.S. Magistrate Judge Numbers should be recommended by the panel for reappointment by the court and should be directed to: Chair, Merit Selection Panel c/o Peter A. Moore, Jr. Clerk U.S. District Court P.O. Box 25670 Raleigh, NC 27611 Comments must be received no later than May 9, 2022.

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the amendment, defendants moved for relief from the trial court’s 2019 judgment. The trial court denied the motion.

The 2020 amendment is presumed valid under § 47F-2-117.

Moreover, G.S. § 47F-3-110(a) allows one of multiple owners of a lot to bind the lot’s other owners to a vote taken in an open meeting if those other owners chose not to attend the meeting.

However, since the recorded document in the record says that it was adopted by “written agreement,” § 47-2-110(a) does not apply. And since a restrictive covenant is an encumbrance on land, the amendment must comply with G.S. § 4158, which says, “Neither spouse may ... encumber any property held by them as tenants by the entirety without the written joinder of the other spouse.”

We are not holding that the 2020 covenant is invalid. It may be that the covenant was voted on at a meeting. On remand, defendants are free to move the trial court for leave to amend their answer to assert the 2020 amendment as a defense.

However, the recorded document that was before the trial court states that the document was adopted by “written agreement.” Accordingly, we cannot say that the trial court abused its discretion in denying defendants’ motion based on the 2020 amendment.

Affirmed in part, vacated in part and remanded.

Bryan v. Kittredge (Lawyers Weekly No. 011-070-22, 11 pp.)

(Chris Dillon, J.) Appealed from Granville County Superior Court (Alma Hinton, J.) Chance Wilkinson for plaintiffs; Lydney Bryant for defendants. 2022-NCCOA-201

Administrative Certificate of Need – Substantial Prejudice – Competition Pursuant to G.S. § 150B-23(a) and our caselaw, as part of the merits of its contested case, a petitioner must show that the respondentagency substantially prejudiced the petitioner’s rights. Although petitioner argues that it was substantially prejudiced by respondent’s partial denial of its application for a certificate of need because respondent “limited the number of its own [dialysis] stations that [petitioner] could move,” a petitioner’s mere status as a denied competitive CON applicant alone is insufficient to establish substantial prejudice as a matter of law.

We affirm summary judgment in favor of the respondent-agency and the respondent-intervenor.

Although summary judgment is inappropriate where two or more applicants conform to the majority of the statutory criteria, summary judgment can be appropriate when an applicant fails to forecast evidence of substantial prejudice.

Bio-Medical Applications of North Carolina Inc. v. NC Department of Health & Human Services (Lawyers Weekly No. 011071-22, 10 pp.) (Jefferson Griffin, J.) Appealed from of Office of Administrative Hearings (Stacey Bice Bawtinhimer, ALJ) Marcus Hewitt and Elizabeth Sims Hedrick for petitioner; Derek Hunter, Lee Whitman and Blakely Kiefer for respondents.

2022-NCCOA-199

Municipal Public Utilities – Water & Sewer Capacity Fees – Former Statute Version The version of G.S. § 160A-314(a) in effect during the fiscal years 20162018 required that municipal water and sewer fees be applied to contemporaneous uses of those systems.

Where the defendant-city collects and deposits “capacity” fees into its general water and sewer fund, carries the monies forward over time, does not currently have a plan for spending the carried-over monies, and states that the funds will be spent to “fund future operations,” the undisputed evidence shows that the city’s capacity fees were charged for future discretionary spending and not for contemporaneous use of the system or for services furnished.

Therefore, the charging of capacity fees for the fiscal years 2016-2018 was not authorized by the previous version of § 160A-314(a) and was ultra vires.

We affirm partial summary judgment for the plaintiff-developers.

Although the statute has been amended, the amendment was not retroactive.

Daedalus, LLC v. City of Charlotte (Lawyers Weekly No. 011-07222, 17 pp.) (Toby Hampson, J.) Appealed from Mecklenburg County Superior Court (Carla Archie, J.) James DeMay, Daniel Bryson, Martha Geer, Mark Sigmon, John Hunter Bryson, James Scarbrough, John Scarbrough, Madeline Trilling, Gary Shipman and William Wright for plaintiffs; Steven Bader, Patrick Flanagan and Stephanie Webster for defendant. 2022-NCCOA-203

Workers’ Compensation Third-Party Recovery – Subrogation – Auto Insurance – UIM – Attorney’s Fees In a prior appeal, our Supreme Court determined that, pursuant to a commercial insurance policy’s choice-of-law clause, South Carolina law applied to the issue of whether underinsured motorist benefits paid pursuant to that policy were subject to the subrogation claim of a workers’ compensation insurer. However, our Supreme Court did not address whether UIM benefits paid pursuant to a personal auto insurance policy were subject to such a subrogation claim. Applying this court’s precedent, we conclude that UIM benefits paid pursuant to the personal policy are subject to the subrogation claim of the workers’ compensation insurer.

We affirm the Industrial Commission’s imposition of a workers’ compensation lien against that portion of plaintiff’s wrongful death recovery that would have been distributed to heirs who did not receive any part of the workers’ compensation award. We reverse the Commission’s determination that the proceeds of the personal UIM policy are not subject to defendants’ subrogation lien. The costs and reasonable expenses are to be distributed from the proceeds of the tortfeasor’s liability policy, and one-third of the proceeds of each policy are to be distributed as attorneys’ fees.

Facts

While driving a truck for the defendant-employer in South Caroli-

Capable. Committed.

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12 / OPINION DIGESTS na, plaintiff’s decedent was involved in a fatal accident. The defendantworkers’ compensation carrier paid plaintiff $333,763 in workers’ compensation death benefits.

Plaintiff filed a wrongful death action against the at-fault driver in South Carolina. Plaintiff settled that case and received (1) $50,000 in liability benefits from the tortfeasor’s insurer; (2) $12,000 in personal UIM proceeds from plaintiff’s and the decedent’s personal UIM policy; and (3) $900,000 in UIM proceeds from the employer’s commercial UIM policy.

The workers’ compensation carrier sought subrogation pursuant to G.S. § 97-10.2. Although our statute allows subrogation of UIM proceeds, South Carolina law does not. The employer’s commercial UIM policy included an endorsement making South Carolina law applicable to all UIM payments under the policy. Accordingly, our Supreme Court ruled that defendants were not entitled to subrogation from the proceeds of the employer’s UIM policy.

On remand, the Commission allowed subrogation only from the tortfeasor’s liability policy. The Commission first deducted the costs and expenses of the South Carolina litigation from the liability-policy proceeds, then deducted $16,666.67 for plaintiff’s attorneys’ fees, and finally awarded the carrier $27,411.42.

Plaintiff’s Appeal

Plaintiff argues that the Commission erred by imposing a workers’ compensation lien against that

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portion of a wrongful death recovery that would have been distributed to heirs who did not receive any part of the workers’ compensation award.

Plaintiff’s argument is contrary to In re Estate of Bullock, 188 N.C. App. 518, 655 S.E.2d 869 (2008).

Plaintiff acknowledges that her arguments in favor of overturning Bullock are properly addressed to our Supreme Court.

Defendants’ Cross-Appeal

Our Supreme Court did not address the issue of whether the proceeds from the personal UIM policy were subject to a workers’ compensation lien.

Under well-settled conflict-oflaws principles, the tort law of South Carolina governs the substantive issues of liability and damages, while procedural rights are determined by the laws of North Carolina.

In Anglin v. Dunbar Armored, Inc., 226 N.C. App. 203, 742 S.E.2d 205 (2013), the plaintiff sought the “reduction or elimination of [a workers’ compensation] subrogation lien pursuant to N.C. Gen. Stat. § 97-10.2(j)” on South Carolina UIM funds. In that “N.C. Gen. Stat. § 9710.2(j) is remedial in nature and remedial rights are determined by the law of the forum,” we concluded that “the trial court did not err in applying N.C. Gen. Stat. § 97-10.2(j) to [the] plaintiff’s UIM funds received under a South Carolina insurance policy[,]” thus allowing the subrogation lien to be asserted against the UIM proceeds. Anglin controls here.

The proceeds from the personal UIM policy are subject to subrogation.

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Following the prescription of G.S. § 97-10.2(f)(1), from the $12,500 personal UIM proceeds, $4,166.67 shall be awarded to plaintiff’s counsel and $8,333.33 shall be awarded to defendants in satisfaction of their subrogation lien.

Affirmed in part, reversed in part and remanded.

Walker v. K&W Cafeterias (Lawyers Weekly No. 011-073-22, 18 pp.) (Valerie Zachary, J.) Appealed from the Industrial Commission. Vernon Sumwalt and Christa Sumwalt for plaintiff; Steven Bader and Roy Pettigrew for defendants.

2022-NCCOA-219

Civil Practice Res Judicata – Gatekeeping Order – Attorney’s Fees – Appeals After his father’s death, plaintiff filed multiple unsuccessful lawsuits against his father’s estate, all arising from his father’s conveyance of real property from a trust to himself and plaintiff’s claims in the parcels. Not only is the current action barred by res judicata, but the trial court also did not abuse its discretion in issuing a gatekeeping order against plaintiff since the trial court found that (1) plaintiff never asserted a claim against his father’s estate, and the creditor notice and claims period had long expired; (2) plaintiff pursued four separate actions in North Carolina, including two prior appeals to this court, plus two actions filed in Massachusetts; (3) no basis exists in law for the complaint in this action; and (4) plaintiff’s numerous filings were frivolous, amounted to harassment, caused defendant to incur needless expense, and placed an undue burden on the judicial system.

We affirm the trial court’s dismissal of plaintiff’s complaint, its gatekeeping order, and its decision to award sanctions under N.C. R. Civ. P. 11. However, we vacate and remand for recalculation of the attorney’s fee award.

The trial court’s attorney’s fee award of $28,833.25 included fees for a previous appeal to this court.

“The authority to sanction frivolous appeals by shifting expenses incurred on appeal ... onto appellants is exclusively granted to the appellate courts under N.C. R. App. P. 34.” Hill v. Hill, 173. N.C. App. 309, 622 S.E.2d 503 (2005).

Barrington v. Dyer (Lawyers Weekly No. 011-074-22, 12 pp.)

(John Tyson, J.) Appealed from Carteret County Superior Court (Paul Quinn, J.) Wyles Johnson for plaintiff; Bradley Schulz for defendant. 2022-NCCOA-198

Domestic Relations

ly expenses actually were. The trial court did find that defendant had a monthly surplus of $5,250, allowing an inference that his reasonable monthly expenses were $5,672.01; however, the trial court made no such finding. Additionally, it does not appear that—in determining that defendant had the ability to pay monthly alimony of $5,250—the trial court considered defendant’s monthly child support obligation of $3,483.83. Finally, while the trial court found that defendant could access his dental practice funds “when he needs and/or wants the money,” it is unclear whether and to what extent the trial court considered defendant’s access to his dental practice funds when determining his ability to pay $5,250 in monthly alimony.

We vacate the alimony award and remand for further findings of fact and conclusions of law. Otherwise, we affirm.

Where the record evidence shows that neither defendant’s dental practice nor the dental office suite was susceptible to division, the evidence supports the trial court’s finding that the presumption favoring in-kind distribution was rebutted.

Moreover, the $520,000 value of the dental practice, as found by the trial court, plus the $384,495 equity in the dental suite, as stipulated to by the parties, comprised a bulk of the $1,152,874 distributed to defendant. The remaining value of the assets distributed to defendant, including defendant’s two IRAs worth a combined value of $195,683.34, was $248,372, short of the $364,000 distributive award ordered. The evidence supports the trial court’s finding and conclusion that defendant refinance the dental suite to fund the distributive award.

Plaintiff’s valuation expert said she included only one bank account in her valuation of defendant’s dental practice; that account had a June 11, 2017, balance of $27,061; and the dental practice’s May 31, 2017 balance sheet reported total cash of $26,641. This evidence (1) supports the trial court’s conclusion that two other bank accounts were not included in the expert’s valuation of the dental practice and (2) is sufficient to support the trial court’s decision to exclude the other accounts from the value of the dental practice and instead to distribute them to defendant as personal property.

Affirmed in part, vacated and remanded in part.

Brady v. Brady (Lawyers Weekly No. 011-075-22, 20 pp.) (Allegra Collins, J.) Appealed from Mecklenburg County District Court (Paulina Havelka, J.) Amy Simpson and Kyle LeBlanc for plaintiff; Matthew Myers for defendant. 2022-NCCOA-200

Tort/Negligence

Alimony – Ability to Pay – Insufficient Findings – Equitable Distribution – Unequal Division – Distributive Award

NIED – Severe Emotional Distress – Insufficient Allegations – Foreseeability

Based on the trial court’s unchallenged findings, the defendant-husband, a dentist with his own practice, had a gross monthly salary of approximately $18,364.42 and net monthly income of approximately $10,922.01. Although the trial court found that defendant’s claimed monthly expenses of $11,974.43 were not reasonable, the trial court did not make a finding of fact as to what defendant’s reasonable month-

The complaint sufficiently alleged foreseeability: plaintiff and her father were riding bicycles when defendant, driving erratically, narrowly missed plaintiff, fatally struck her father, and fled the scene. However, the only allegations regarding plaintiff’s emotional distress are that defendant’s actions “proximately caused the negligent infliction of emotional distress of plaintiff” and that “plaintiff suffered severe emo-

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14 / OPINION DIGESTS tional distress.” Under Holleman v. Aiken, 193 N.C. App. 484, 668 S.E.2d 579 (2008), and Horne v.

Cumberland Cnty. Hosp. Sys., Inc., 228 N.C. App. 142, 746 S.E.2d 13 (2013), plaintiff’s complaint does not contain sufficient factual allegations to support her allegation of severe emotional distress.

We affirm the trial court’s dismissal of plaintiff’s claim for negligent infliction of emotional distress.

Cauley v. Bean (Lawyers Weekly No. 011-076-22, 14 pp.) (Allegra Collins, J.) Appealed from Caldwell County Superior Court (Robert Ervin, J.) Jennifer Iliana Segnere and Ann Groninger for plaintiff; Cameron Caudle and Christopher Raub for defendant. 2022-NCCOA-202

Labor & Employment Public Employees – Disability Benefits – Social Security Reduction – COLA Glitch Where the defendant-treasury department was statutorily required to recoup overpayments of disability benefits, defendant did not breach any contract with plaintiffs when it recouped overpayments made to them because of an error in defendant’s computer programming.

We affirm the superior court’s dismissal of plaintiffs’ complaint.

Plaintiffs, a former University of North Carolina employee and a former Wake County public school teacher, receive long-term disability benefits pursuant to G.S Chapter 135. In accordance with the relevant

statutes, plaintiffs’ state disability benefits were reduced by the amount of social security benefits they received, and their state benefits were to be reduced commensurate with any cost of living increases to their social security benefits.

Between 2006 and 2017, the defendant’s computer programming failed to account for cost of living increases to plaintiffs’ social security benefits. Defendant reduced plaintiffs’ disability benefits in order to recoup the resulting overpayments.

Under G.S. § 135-106(b), the amount of long-term disability benefits received were supposed to be offset dollar-for-dollar by the social security disability benefit for which plaintiffs would otherwise be eligible. Additionally, each plaintiff’s contract contained a recoupment provision pursuant to G.S. § 135-9.

Moreover, the state has a duty under G.S. § 143-64.80 to pursue the recoupment of any overpayment.

In other words, the statutory terms of plaintiffs’ right to receive disability payments included a recoupment clause which mandated defendant to seek reimbursement from any overpayment.

Plaintiff Shuford’s evidence as to the social security offset amount differed from defendant’s evidence.

However, a defense witness testified that this was because defendant used the gross amount of benefits and Shuford’s evidence failed to account for amounts withheld by the Social Security Administration. The administrative law judge had substantial evidence to support her decision.

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 Apr il 11, 2022

Affirmed.

Moss v. N.C. Department of State Treasurer (Lawyers Weekly No. 011-077-22, 19 pp.) (April Wood, J.) Appealed from Wake County Superior Court (Paul Ridgeway, J.) John Taylor, Robert Zaytoun and Clare Kurdys for plaintiffs; Katherine Murphy for defendant. 2022-NCCOA-206

Administrative Appeals – Time for Filing – USPS – No Postmark – Late Receipt – Pandemic Extensions The deadline for filing the appellant-taxpayers’ appeals of their property valuations was April 1, 2020.

Although it appears the taxpayers mailed their notices of appeal on March 30, 2020, since their notices were not postmarked, and since the Property Tax Commission did not receive the notices until April 6, 2020, the notices were not timely filed.

We affirm the Property Tax Commission’s dismissal of the taxpayers’ appeals as untimely.

Although G.S. § 105-290(e) refers to the date “the board mailed” a notice of its decision, the statute does not require a board of equalization and review, made up of volunteers, or one of its members to physically deliver notices of decision to the U.S. Postal Service. In fact, G.S. § 105-322(d) appoints the county assessor as clerk to the board, and G.S. § 105-296(a) grants the assessor “all powers reasonably necessary in the performance of his duties not inconsistent with the

Constitution or the laws of this State.”

We reject (1) the taxpayers’ challenge to the assessor’s employment of a third-party, nongovernmental contractor to mail the board’s notices and (2) the taxpayers’ argument that the board must supervise the assessor in mailing the notices.

It is true that then Chief Justice Cheri Beasley entered emergency orders extending time limits for the courts during the pandemic shutdown; however, the Property Tax Commission is an administrative agency, not a trial court. Administrative agencies, even if quasi-judicial, are not considered trial courts for purposes of limitations periods.

Former Chief Administrative Law Judge Julian Mann, III, also entered an order extending limitation periods, but only for contested cases before the Office of Administrative Hearings. As such, this order cannot be applied to extend the filing deadline for the taxpayers’ appeals to the Property Tax Commission.

Affirmed.

In re POP Capitol Towers, LP (Lawyers Weekly No. 011-078-22, 20 pp.) (Darren Jackson, J.) Appealed from the Property Tax Commission.

Lindsey Walker Hillis for appellants; Ronald Gibson and Robert Adden for appellee. 2022-NCCOA-205

Domestic Relations Rule 11 Sanctions – Interlocutory Appeal – No Substantial Right Argument The defendant-wife makes a bare

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OPINION DIGESTS / 15

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Ap ri l 11, 2022

assertion that she is unable to pay the $15,000 in attorney’s fees imposed on her as a N.C. R. Civ. P. 11 sanction, and her pleadings allege that she is a dependent spouse.

The wife’s assertions do not suffice to confer jurisdiction on this court to hear the wife’s appeal of the trial court’s interlocutory sanction order.

Appeal dismissed.

Although an interlocutory order to pay attorney’s fees as a sanction does not affect a substantial right, an order for a party to pay a significant amount of money may be immediately appealed if it can be shown by the appellant to affect a substantial right. Here, the Rule 11 sanctions—requiring defendant to pay $15,000 of plaintiff’s attorney’s fees in $300 monthly increments— did not signify the disposal of any issue underlying the parties’ underlying divorce litigation; rather, it was imposed to address and deter defendant’s conduct in the ongoing action.

Defendant provides no argument attempting to meet her burden of establishing that a substantial right will be affected unless she is allowed an immediate appeal from an interlocutory order. Therefore, this court lacks jurisdiction to hear defendant’s appeal.

Dissent

(Tyson, J): This court has previously allowed the immediate appeal of an interlocutory order requiring the payment of attorney’s fees in a domestic relations case. Here, the trial court failed to make sufficient findings as to the reasonableness of plaintiff’s attorney’s fees. Defendant’s substantial rights are affected to warrant immediate review.

Defendant, a Maryland resident, contested the trial court’s jurisdiction to hear this matter. Anticipating that the trial court might not agree with defendant, her counsel prepared and defendant signed pleadings acknowledging the jurisdiction of North Carolina’s courts.

Those pleadings were filed an hour after the trial court ruled that it had jurisdiction.

It is not sanctionable for counsel to alternatively anticipate an adverse outcome and to plan accordingly. Defendant’s acknowledgement of North Carolina jurisdiction only occurred after her attorney filed her complaint to protect her marital interests in North Carolina.

Whether it was filed an hour, day, or week later after the court ruled is immaterial.

Even if sanctions were appropri-

ate, the trial court made an error of law and abused its discretion by ordering defendant to pay for the entirety of plaintiff’s attorney fees.

Both parties filed a myriad of complaints and motions throughout the preceding. Plaintiff failed to show why defendant should be financially responsible for more than two years of legal fees prior to defendant’s purported sanctionable conduct.

I would vacate the sanctions order and remand for further proceedings.

Preston v. Preston (Lawyers Weekly No. 011-079-22, 19 pp.) (Jeffery Carpenter, J.) (John Tyson, J., dissenting) Appealed from Mecklenburg County District Court (Karen McCallum, J.) Kyle LeBlanc for plaintiff; Jennifer Fleet for defendant. 2022-NCCOA-207

Attorneys Disqualification – Tort/Negligence – Legal Malpractice – First Impression – Self Representation Even though a lawyer generally may appear pro se, the court concludes, in a matter of first impression, that a court may disqualify a lawyer from appearing pro se in a particular case. The trial court did not abuse its discretion in disqualifying the defendant-attorney from representing himself in this legal malpractice action arising out of his representation of plaintiff while his license was suspended.

We affirm the trial court’s disqualification of defendant attorney Fine from representing himself or the defendant-law firm in this action.

Without informing plaintiff or the courts that his law license was suspended, Fine accepted fees from and represented plaintiff in litigation. In this malpractice action, plaintiffs sue both Fine and his law firm. Arguing that Fine would be a material and necessary witness in the litigation and that Fine’s representation of the firm would be materially adverse to plaintiff’s interests, plaintiff successfully moved to have Fine disqualified from representing himself and the firm in this litigation.

Law Firm

In a 2020 Ethics Opinion addressing N.C. R.P.C. 3.7, the State Bar Ethics Committee noted that, while Rule 3.7’s prohibition on a lawyer acting as both advocate and witness “does not automatically extend to a lawyer’s representation of a client in pretrial

proceedings,” the court has discretion to disqualify a lawyer from pretrial proceedings “if the pretrial activities involve evidence that, if admitted at trial, would reveal the lawyer’s dual role.” 2020 Formal Ethics Opinion 3, no. 2, N.C. State Bar. In this case, if admitted at trial, evidence obtained during pretrial depositions of Fine and other lawyers at the firm would reveal Fine’s dual role as it may not be clear to the jury whether they should take Fine’s deposition statements as proof or as an analysis of the proof. Therefore, the trial court did not abuse its discretion in disqualifying Fine from representing the firm under Rule 3.7.

Pro Se Appearance

In broad terms, litigants are permitted to appear pro se, regardless of whether the litigant is a lawyer or a layperson and even when a lawyerlitigant is likely to be a necessary witness. Nevertheless, 2011 Formal Ethics Opinion 1, Opinion no. 3, N.C. State Bar notes that “it is the sole prerogative of a court to determine advocate/witness issues when raised in a motion to disqualify.”

A lawyer’s right to be self-represented even when the lawyer is likely to be a necessary witness notwithstanding, the question remains whether circumstances may arise permitting a court to disqualify a lawyer from appearing pro se in a particular case. North Carolina courts do not appear to have addressed this question.

The State Bar Formal Ethics Opinion on the question suggests there may well be circumstances necessitating disqualification of a lawyerlitigant during the course of proceedings in an individual case. Moreover, North Carolina courts retain inherent disciplinary power to regulate attorneys appearing before the courts.

While it is apparent that the trial court did rely on Rule 3.7 in part for the basis of disqualifying Fine from representing both himself and the firm, it is also clear this was not the sole basis for disqualifying Fine. In fact, the trial court’s findings reflect the trial court’s concern that Fine would likely be the key witness with unique knowledge upon which both his and the firm’s liability might hinge. Further, the trial court’s findings reflect concern about Fine’s ability to operate and advocate objectively in this tripartite role of litigant, lawyer, and key witness as illustrated by Fine’s behavior and demeanor in this case including Fine’s own acknowledgment: “he was angry about being sued by Plaintiff and therefore his

filed motions may reflect his emotional feelings…”

Moreover, the trial court’s findings also demonstrate the trial court’s additional concern about the interwoven relationships at the heart of this case including the attorney-client relationship between Fine and plaintiff, Fine’s relationship with the firm, and the firm’s role in collecting substantial fees from plaintiff for legal work while Fine was unlicensed. Finally, undergirding all of these concerns was the trial court’s recognition of Fine’s history of wrongful conduct as found by the North Carolina State Bar including: making “misleading statements [to clients] regarding the services Fine could provide”; making “a false statement to a tribunal by holding out in case filings as an actively licensed attorney in North Carolina despite being suspend at the time”; and charging or collecting “an illegal or excessive fee in violation of Rule 1.5(a).”

Given this litany of concerns, we cannot conclude the trial court’s exercise of its inherent authority to control proceedings—including control of the lawyers appearing before it—was arbitrary or unsupported by reason.

Therefore, the trial court did not err in disqualifying Fine from appearing pro se and from representing the firm in this litigation.

Affirmed.

Rosenthal Furs, Inc. v. Fine (Lawyers Weekly No. 011-080-22, 17 pp.) (Toby Hampson, J.) Appealed from Durham County Superior Court (Orlando Hudson, J.) Randolph James for plaintiff; Andrew Fine for defendants. 2022-NCCOA-208

Labor & Employment Public Employees – Grievance Process – Subject Matter Jurisdiction – Timely Filing After being terminated from his job, petitioner had until 24 March 2020 to file a grievance. Although petitioner testified that he watched his wife stamp and mail his grievance form on 20 March 2020, the respondent-employer presented evidence that it never received the mailed form and first received an illegible emailed copy on 7 April 2020. While the administrative law judge did not explicitly rule on the timeliness of petitioner’s filing of the grievance form, the ALJ denied respondent’s motion to dismiss for lack of subject matter jurisdiction, thereby impliedly crediting petitioner’s testimony implicitly

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16 / OPINION DIGESTS finding that the form was timely filed.

The finding implicit in the ALJ’s rulings denying respondents’ motions to dismiss for lack of subject matter jurisdiction—that the grievance form was timely filed—has a rational basis in the evidence under the whole record test. To hold otherwise would effectively require us to re-weigh the evidence before the ALJ and substitute our own credibility determination for that of the ALJ, which we cannot do as a reviewing court under the whole record test.

Affirmed.

Dissent

(Tyson, J.): Petitioner chose to purportedly invoke internal agency jurisdiction by a means which left no objective proof of timely filing. Petitioner’s form was not received until 15 days after the deadline, and only then after Petitioner emailed the admittedly untimely form. He failed to comply with and invoke respondent’s internal grievance process. Petitioner’s failure deprived the Office of Administrative Hearings of jurisdiction to hear the contested case.

I would reverse and remand to dismiss for lack of jurisdiction.

Russell v. North Carolina Department of Public Safety (Lawyers Weekly No. 011-081-22, 25 pp.)

(Darren Jackson, J.) (John Tyson, J., dissenting) Appealed from the Office of Administrative Hearings (Melissa Owens Lassiter, ALJ) Jennifer Knox for petitioner; Adrina Bass for defendant. 2022-NCCOA-209

Municipal Short-Term Rentals – Registration Requirement – Ultra Vires Pursuant to former G.S. § 160A424(c), the defendant-city was prohibited from requiring the owner of rental property (1) to obtain permission from the city to lease or rent or (2) to register rental property with the city.

The General Assembly’s 2019 recodification of the statute to G.S. § 160D1207(c) and its slight amendment of the statute did not eliminate these prohibitions. The trial court properly determined that it was statutorily impermissible for the city to require a short-term rental owner to obtain a permit to rent under G.S. Chapter 160D, Article 11 or 12; to obtain a permission to rent under the same Articles; or to register the property as a rental with the government.

We affirm the trial court’s striking of these provisions of the city’s ordinance. However, we reverse the trial court’s striking of severable provisions of the city’s ordinance that do not depend on registration, permits or permission.

Before its recodification, § 160A424(c) barred cities from “[requiring] any owner or manager of rental property to obtain any permit or permission ... to lease or rent ... or to register rental property with the city.”

The defendant-city nevertheless enacted an ordinance to restrict short-term rentals to specific zoning districts, to require at least 400 feet of separation between short-term rentals, and to cap the total percentage of short-term rentals at two percent of residential parcels. To implement the separation and cap requirements, the ordinance required short-term rental operators to register their properties.

A lottery was held, and plaintiffs were unsuccessful, as another property within 400 feet of their townhouse drew a lower lottery number.

Shortly before plaintiffs filed this declaratory judgment action, the General Assembly recodified § 160A424(c) to G.S. § 160D-1207(c). Section 160D-1270(c) substituted “local government” for “city” and prohibited a local government from adopting or enforcing “any ordinance that would require any owner or manager of rental property to obtain any permit or permission under Article 11 or Article 12 of this Chapter from the local government to lease or rent residential real property or to register rental property with the local government.”

The new language “under Article 11 or Article 12 of this Chapter” does not change the statute’s preemptions.

Article 11’s statutes explicitly refer to “permits” and other approval mechanism. Article 12’s statutes contemplate other forms of governmental approvals, i.e., permissions. Thus, applying the statutory cross-reference to both “permit or permission” and treating them together results in a general prohibition against requiring government approval to lease or rent, however required under Articles 11 or 12, that aligns with the structure of those Articles.

We agree with the trial court’s interpretation of § 160D-1207(c) as prohibiting local governments from requiring a short-term rental owner to obtain a permit to rent under Articles 11 or 12, a permission to rent under the same Articles, or to register the property as a rental with the government. The provisions of the city’s ordinance requiring such a registration— as well as any provisions that are inseverable from that initial registration requirement—are preempted by § 160D-1207(c) and its unambiguous predecessor § 160A-424(c).

However, the ordinance includes a severability clause, and several parts of the ordinance do not violate § 160D-1270(c). Such requirements – like requiring one off-street parking space per bedroom – are permissible and remain in effect.

Affirmed in part, reversed in part, and remanded.

Schroeder v. City of Wilmington (Lawyers Weekly No. 011-08222, 26 pp.) (Lucy Inman, J.) Appealed from New Hanover County Superior Court (Kent Harrell, J.) John Branch, Andrew Brown, Ari Bargil and Adam Griffin for plaintiffs; Cosmo Zinkow, Robert Hagemann and Meredith Everhart for defendant. 2022-NCCOA-210

Criminal Practice Constitutional – Equal Protection – Batson Analysis – Steps 2 & 3 The prosecutor satisfied his burden at step two of the analysis under Batson v. Kentucky, 476 U.S. 79, when he said he peremptorily excused black prospective juror R.S. because he had a felony conviction but didn’t own up to it when asked and that he peremptorily excused black prospective juror V.B. because her business was connected to a drug investigation and because she seemed confused when he asked her whether she could accept witness testimony as proof or whether she would need to see an event to be convinced. At step three of the Batson analysis, defendant failed to show that the prosecutor’s proffered reasons were a pretext for race discrimination.

We affirm the trial court’s order overruling defendant’s Batson objections.

The prosecutor’s proffered reasons

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for his peremptory strikes were raceneutral, and nothing more was required at step two.

While the prosecutor did not produce evidence of R.S.’s criminal conviction, defendant also had access to prospective jurors’ criminal records.

It was his burden to rebut the prosecutor’s showing, and the failed to do so.

Moreover, the trial court was inherently evaluating the prosecutor’s credibility when it accepted his representations as to running criminal history checks on all jurors and learning of R.S.’s criminal record. Therefore, the trial court had the proper record before it even without the actual documents the prosecutor used.

With respect to the alleged connection between V.B.’s business and a drug investigation, the trial court accepted the prosecutor’s statement as credible. While defendant could not undertake the same investigation as the prosecution in regard to a criminal investigation that did not even result in charges against V.B., this court has accepted a similar explanation in the past. In any event, the connection to the drug investigation is but one reason the prosecutor gave for striking V.B. Defendant points out that the prosecutor did not question R.S. or V.B. about criminal activity. The prosecutor explained he did not want to embarrass V.B. or reveal the methods of an undercover investigation. As to R.S.’s criminal record, the prosecutor explained he did not want to embarrass R.S. and had seen other prosecutors striking jurors for undisclosed criminal records without questioning them.

Among those explanations, the desire to avoid revealing police undercover investigations appears reasonable. The other explanations are race-neutral. We cannot find clear error here where the trial court accepted plausibly race-neutral explanations for the failure to question R.S. and V.B. about the subjects the prosecutor later used to justify the strikes.

While the prosecutor noted V.B. looked confused by his question about witness testimony versus seeing an event, he also discussed how her answers exhibited what he believed was confusion and otherwise concerned him. The prosecutor did not primarily focus on V.B.’s demeanor.

A case is particularly susceptible to racial discrimination if the identities of the defendant, victims, and witnesses cross racial lines. Here, the trial court found defendant is AfricanAmerican, there were no victims, and “there is no record of the race of key witnesses.” The trial court also found there was no evidence of “any potential racial motivations on the part of any witness.” Based upon these findings, the trial court determined the case was not susceptible to racial discrimination and emphasized that there were no cross racial issues.

The trial court did not err in that analysis; it did exactly what our caselaw required it to do. Where there is no evidence of any racial motivations or discrimination in the particular case under review, our precedent does not allow us to account in some sort of general philosophical way for “the effect of bias and racial stereotypes on jurors” as defendant wants us to consider.

Even if we accept as true defendant’s evidence which indicates Black people have a disparate arrest rate and rate of imprisonment after conviction for marijuana possession and “in general,” this does not mean that

a particular case is “susceptible to racial discrimination” for purposes of the Batson analysis.

With respect to reports analyzing statistics, we agree with defendant that (1) just the fact that law students provided assistance in a study does not make the study reliable or unreliable, without more information; (2) the lack of prosecutorial opinions in the study does not necessarily undermine the study; and (3) the fact that a study is conducted on a cold record, does not justify discounting it.

Finally, the trial court discounted a Mississippi State University study because it did not show racial disparity in juror strikes in past cases involving the prosecutor in this case. In the time since the trial court made its ruling and the parties finished their supplemental briefing, our Supreme Court has clarified statistical evidence “regarding the disproportionate use of peremptory strikes against Black potential jurors” should be considered.

State v. Clegg, 2022-NCSC-11.

Based on Clegg, the trial court did not identify a proper basis for failing to take into account defendant’s data showing racially disparate strike rates in Sampson County, regardless of whether the same prosecutor in this case was involved in the studied cases. Yet we note that a trial court could weigh the usefulness of statistical information based upon the timing of the study and any relevant changes in the policies or procedures of the prosecutor’s office in a particular county, even if the data did not identify the particular prosecutor involved in a case.

The record does not indicate if the practices or policies of the District Attorney’s office in Sampson County were the same during the years covered by the study and 2017, when defendant was tried. Our Supreme Court has noted these policies could be quite important.

But even weighing the data in defendant’s favor, we cannot find the trial court clearly erred.

Side-by-side comparisons of the potential jurors are more powerful than bare statistics, and those comparisons here support the prosecutor. Further, we have already concluded the lack of susceptibility of this case to racial discrimination favors the prosecutor’s reasoning as well.

Finally, where the prosecutor accepted other Black jurors both before and after peremptorily challenging R.S. and V.B., the trial court did not clearly err by giving weight to the Black jurors accepted by the prosecution.

Affirmed.

State v. Bennett (Lawyers Weekly No. 011-083-22, 70 pp.) (Donna Stroud, C.J.) Appealed from Sampson County Superior Court (John Nobles, J.) Kristin Uicker for the state; Sterling Rozear for defendant. 2022-NCCOA-212

Criminal Practice Extortion – Constitutional – First Amendment – First Impression Since extortionate speech is criminal conduct in and of itself, it is not constitutionally protected speech.

Where defendant engaged in a “sugar daddy/sugar baby” relationship with a married man and then offered him a confidentiality agreement—in exchange for a six-figure sum—to keep his name out of her supposedly imminent tell-all book, defendant was not entitled to a “true threat” analysis be-

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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 Ap ri l 11, 2022

fore being convicted of violating G.S. § 14-118.4.

We find no error in defendant’s extortion conviction.

The First Amendment requires a “true threat” reading to be applied to every anti-threat statute. A “true threat” is an objectively threatening statement communicated by a party which possesses the subjective intent to threaten a listener or identifiable group.

The speaker of the true threat need not intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.

G.S. § 14-118.4 sets forth the crime of extortion. Whether § 14-118.4 falls under the “true threat” requirement of the First Amendment is a case of first impression. We decline to extend the “true threat” requirement to § 14118.4 and hold the First Amendment does not require a threat under the terms of § 14-118.4 be a “true threat” to fall outside the protections of the First Amendment.

Extortion, though verbal, is a crime in and of itself. Like robbery or murder, extortion refers to criminal conduct that has a commonly understood meaning providing ample notice of the conduct falling within its ambit, limiting the potential for abuse in enforcement, and ensuring that protected First Amendment speech is not within its reach. Extortion is speech that is integral to criminal conduct, notwithstanding the content of the speech. It therefore falls within the category of unprotected speech, and necessarily may be restricted.

Extortionate speech as prohibited § 14-118.4 is not constitutionally protected speech. Thus, a “true threat” application and analysis to § 14-118.4 is unmerited.

Although extortion statutes may be unconstitutional, § 14-118.4 contains the necessary intent and act requirements to pass constitutional muster. Section 14-118.4 states, “Any person who threatens or communicates a threat or threats to another with the intention thereby wrongfully to obtain anything of value or any acquittance, advantage, or immunity is guilty of extortion and such person shall be punished as a Class F felon.”

Per the plain language of § 14118.4, the “intent” component of the section lies in the requirement that the perpetrator must “communicate a threat or threats” while possessing the requisite intent to “wrongfully

... obtain anything of value or any acquittance, advantage, or immunity…” The “act” component, in turn, rests in § 14-118.4’s prohibition of the crime of extortion within our state and does not limit speech relating to social or political conflict.

Consequently, we hold § 14-118.4 withstands First Amendment scrutiny as it prohibits only extortionate speech.

In this case, extensive evidence was presented to support defendant’s conviction of extortion. Defendant sent the victim multiple e-mails and letters asserting that she was writing a book about their “sugar daddy” and “sugar baby” relationship. Defendant told the victim she sent certified letters to his ex-wife regarding statements he had made about her.

When the victim did not immediately offer to “purchase” a confidentiality agreement, defendant sent frequent e-mails demanding the victim submit a bid for a confidentiality agreement. Defendant threatened, absent a confidentiality agreement, the victim’s ex-wife could come after him for defamation, he may be asked to appear on the Dr. Phil show about the book, and his current wife would receive letters from defendant. Under these facts, there was ample evidence to support the jury’s finding that defendant committed extortion under § 14-118.4.

No error.

State v. Bowen (Lawyers Weekly No. 011-084-22, 16 pp.) (April Wood, J.) Appealed from Mecklenburg County Superior Court (George Cooper Bell, J.) Brian Miller for the state; Aaron Thomas Johnson for defendant. 2022-NCCOA-213

Criminal Practice Second-Degree Murder – Jury Instructions – Written Request – Unpreserved – Self-Defense Even though defense counsel made a written request for jury instructions on self-defense and voluntary manslaughter, after the trial court denied the request, counsel was given two chances to object to the instructions as given, and he instead indicated his assent. As such, defendant’s exception to the trial court’s failure to instruct on self-defense and voluntary manslaughter was not preserved for appellate review.

We find no plain error in defendant’s convictions for second-degree murder, robbery with a dangerous weapon, and felony larceny.

While defendant testified at trial

that he was fearful and thought the victim might have been holding a gun, defendant made numerous statements prior to trial indicating that he killed the victim not out of fear, but because she threatened to cut off power to and evict his family from their home or because she “was talking s*** about his family…” Furthermore, the victim did not verbally threaten or physically attack defendant, and the only weapon found at the scene was the bat defendant used to kill the victim.

The trial court did not plainly err when it declined to instruct the jury on self-defense or involuntary manslaughter. In any event, the lack of such instructions was not prejudicial given the overwhelming evidence of defendant’s guilt.

State v. Acker (Lawyers Weekly No. 011-085-22, 17 pp.) (John Arrowood, J.) Appealed from Craven County Superior Court (John Nobles, J.) Michael Wood for the state; Michael Casterline for defendant. 2022-NCCOA-211

duty, the 2015 complaint did not mention insolvency or allege that plaintiff was unable to pay its financial obligations. The 2021 complaint’s insolvency allegations and the expansion of its fiduciary duty claim to include duties arising from plaintiff’s insolvency are newly made and not subject to the savings provision of Rule 41(a).

In addition, nothing even suggesting the kind of mismanagement that the 2021 complaint alleges appears anywhere in the 2015 complaint.

Plaintiff’s pre-departure allegations of defendant’s mismanagement are newly made and not protected by Rule 41(a)’s savings provision.

Constructive Fraud

In its 2015 complaint, plaintiff alleged that defendant (1) owed fiduciary duties to plaintiff, (2) had access to patient information only because he was plaintiff’s fiduciary, and (3) misused that patient information for his own financial benefit. Thus, the 2015 complaint’s allegations sufficiently notified defendant that plaintiff sought to recover against him not only because he had breached his fiduciary duty to plaintiff by using its confidential information to solicit its patients but also because he had obtained a personal financial benefit from doing so by receiving fees from plaintiff’s former patients. As a result, even though plaintiff failed to caption a claim as constructive fraud in the 2015 complaint, the allegations in the 2015 complaint put defendant on notice of the 2021 constructive fraud claim.

Rule 41’s savings provision therefore applies.

N.C. BUSINESS COURT

Civil Practice Voluntary Dismissal & Refiling – Statutes of Limitation – Corporate – Tort/ Negligence Where plaintiff’s refiled 2021 complaint alleges facts in support of the breach of fiduciary duty claim that were not included in its 2015 voluntarily dismissed complaint, the expanded allegations are not subject to the savings provision of N.C. R. Civ. P. 41(a).

The parties’ cross-motions for judgment on the pleadings are granted in part and denied in part.

Unfair Trade Practices

Plaintiff must prove different elements to prevail on its unfair trade practices (UDTPA) claim than it would on its breach of fiduciary duty or constructive fraud claims, including proof of an unfair or deceptive act and conduct in or affecting commerce, and a UDTPA claim permits wholly different remedies, including treble damages and attorneys’ fees. Even if the court could read the 2015 complaint to include the conduct on which it relies for its 2021 UDTPA claim, the court cannot further conclude that defendant should be deemed to have been on notice of that claim for purposes of Rule 41, particularly given the very different and potentially far more consequential remedies that are available for a violation of G.S. § 751.1 than exist for a claim for breach of fiduciary duty or constructive fraud.

Rule 41’s savings provision does not apply, so plaintiff’s UDTPA claim is time-barred.

Background

Plaintiff, a now-insolvent medical practice, filed suit in 2015 against defendant, a former employee, stockholder and alleged corporate officer after defendant left plaintiff to form a new practice. Defendant took some of plaintiff’s employees and patients with him.

Plaintiff voluntarily dismissed its 2015 complaint without prejudice.

Pursuant to Rule 41(a)’s one-year savings provision, plaintiff refiled its complaint in 2021. Defendant also refiled his counterclaims.

Breach of Fiduciary Duty

Although the 2015 complaint included a claim for breach of fiduciary

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18 / OPINION DIGESTS Setoff/Recoupment

A setoff is a defendant’s counterdemand against a plaintiff arising out of a transaction independent of the plaintiff’s claim. Recoupment arises out of the same transaction.

Defendant’s first counterclaim is for breach of the parties’ employment agreement and his third counterclaim is for violation of the North Carolina Wage and Hour Act Plaintiff’s claims for breach of contract and defendant’s first and third counterclaims unquestionably arise from the employment relationship between the parties.

The same cannot be said for plaintiff’s breach of fiduciary duty and constructive fraud claims because those claims arise from defendant’s fiduciary duties to plaintiff as an alleged director and officer.

Defendant’s employment relationship with plaintiff stands separately and independently from defendant’s fiduciary duties. As a result, any damages defendant may recover from plaintiff on his first and third counterclaims do not arise out of the same transaction (i.e., his employment relationship with plaintiff) as do plaintiff’s claims for breach of fiduciary duty and constructive fraud (his relationship to plaintiff as an alleged officer and director).

Accordingly, any damages defendant may recover on his first and third counterclaims may reduce an award of damages that plaintiff may obtain on its breach of contract and Wage and Hour Act claims but not on its other claims.

Distributions

G.S. § 55-6-40(c) prohibits an insolvent corporation from making distributions to its shareholders.

A stockholder wishing to compel a dividend must allege facts disclosing that the corporation has surplus or net profits available for the payment of the dividend when he brings his action.

Defendant seeks to compel plaintiff to pay a distribution in the future. However, defendant did not plead that plaintiff was solvent when the amended counterclaim was filed or that plaintiff would be solvent at the time of any distribution upon entry of final judgment.

Defendant cites G.S. § 55-640(k), which says, “Nothing in [§ 55-6-40] shall impair any rights which a shareholder may have on general principles of equity to compel the payment of dividends.”

The court is not prepared to conclude that § 55-6-40(k) permits the court to compel an insolvent corporation to pay a dividend to a shareholder when there is no dissolution and winding up process to guarantee fairness to all creditors and shareholders. Accordingly, defendant’s failure to plead that plaintiff was solvent at the time his counterclaim was filed or would be solvent at the time a distribution would be made is fatal to his counterclaim seeking set-off or recoupment for failure to make distributions in compliance with § 55-6-40.

Motions granted in part, denied in part.

Central Carolina Surgical Eye Associates, P.A. v. Matthews (Lawyers Weekly No. 020014-22, 37 pp.) (Louis Bledsoe, C.J.) Richard Greene for plaintiff; Robert Fields for receiver; Lyn Broom, Steven Fox and Mallory Horn for defendant. 2022 NCBC 14

N.C. COURT OF APPEALS, UNPUBLISHED

Attorneys Fee Dispute – Compulsory Counterclaims – Disqualification In the case of a fee dispute, Rule of Professional Conduct 1.5(f)(1) requires a lawyer to notify the client of the State Bar’s fee dispute resolution program at least 30 days prior to initiating legal proceedings to collect the disputed fee. However, when a client files a legal malpractice action, the lawyer’s claims for the related fees are likely compulsory counterclaims. We hold that lawyers do not have to give notice of the fee dispute resolution program when filing a compulsory counterclaim to collect disputed fees from the client in a legal malpractice suit initiated by the client.

We affirm judgment for the law firm.

The plaintiff-clients’ legal malpractice claims were dismissed, and the case proceeded to trial on the defendant-law firm’s claims for unpaid fees.

Disqualification

Prior to trial, the trial court disqualified Brian Upchurch from representing plaintiffs. Upchurch had previously worked on matters for plaintiffs while he was employed by the defendant-law firm. He left the firm, worked as general counsel for Tompkins International, and then opened his own practice.

Plaintiffs consulted Upchurch about their claim against the law firm.

He prepared an analysis containing a factual narrative and a list of 13 “Attorney’s shortcomings.”

Thereafter, Upchurch formally reestablished an attorney-client relationship with plaintiffs with respect to other matters.

Based on these facts, the trial court found, “Upchurch acted, in fact, as the lawyer for the Plaintiffs in January 2015.”

Given that plaintiff Cecil Holcomb asked Upchurch to represent him in the legal malpractice action against defendants in 2014, Upchurch knew or reasonably should have known that defendant Thomas Wilson was represented by counsel in this case as of January 2015. Therefore, when Upchurch met with Wilson to discuss a return to work for the law firm, Upchurch should not have engaged in discussion of plaintiffs’ legal malpractice action with Wilson, regardless of whether he asked Wilson directly about the litigation or they discussed the case generally in relation to his rejoining the firm.

Such communication in these circumstances violates Rule of Professional Conduct 4.2. Accordingly, the trial court did not abuse its discretion in disqualifying Upchurch from serving as plaintiffs’ counsel based on a Rule 4.2 violation.

Subject Matter Jurisdiction

Plaintiffs contend the trial court lacked subject matter jurisdiction over the law firm’s counterclaim for unpaid fees because the firm failed to notify plaintiffs of the State Bar’s fee dispute resolution program and that compliance with the program is a prerequisite to the trial court assuming jurisdiction over the litigation. We disagree.

Pursuant to RPC 1.5(f)(1), in a dispute over fees, before a lawyer can initiate a lawsuit to collect the dis-

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 Apr il 11, 2022

puted fees, the lawyer must give the client notice of the fee dispute resolution program. Neither Rule 1.5(f)(1) nor N.C.A.C. § 1D.0707(a) includes any reference to or requirement that a lawyer give notice when the client initiates a lawsuit against the lawyer and the lawyer files a counterclaim to collect disputed fees.

Additionally, in a legal malpractice suit brought by a client, a counterclaim by the lawyer for outstanding fees in the underlying case will likely be compulsory.

We hold specifically that lawyers do not have to notice the fee dispute resolution program when filing a compulsory counterclaim to collect disputed fees from the client in a legal malpractice suit initiated by a client.

Defendants did not initiate legal proceedings to collect the disputed fees. Rather, defendants filed counterclaims for outstanding legal fees in several matters, all of which were the subject of plaintiffs’ legal malpractice suit. Accordingly, the requirements set forth in Rule 1.5(f)(1) and § 1D.0707(a) that a lawyer must notify the client of the fee dispute resolution program before filing a lawsuit do not apply to the case at bar.

Defendants did not need to notify plaintiffs of the fee dispute resolution program before or after filing their compulsory counterclaim. Therefore, the trial court had subject matter jurisdiction and correctly denied plaintiffs’ motion for a directed verdict.

Affirmed.

Cecil Holcomb Renovations, Inc. v. Law Firm of Wilson & Ratledge PLLC (Lawyers Weekly No. 012-059-22, 22 pp.) (Darren Jackson, J.) (Hunter Murphy, J., concurring in part & concurring in result only in part without separate opinion) Appealed from Wake County Superior Court (Bryan Collins, J.) Matthew Van Horn for plaintiffs; David Coats for defendants. 2022-NCCOA-99

Landlord/Tenant Summary Ejectment – Month-toMonth Lease – Notice The record indicates that the parties had a month-to-month tenancy, that the plaintiff-landlord provided timely notice of termination, and that the defendant-tenants held over after the lease was properly terminated.

The tenants attempted to explain the history of their unsuccessful efforts to secure financing to purchase the property, but the trial court interrupted to explain that those issues were not relevant to the ejectment proceeding.

We find nothing in the record suggesting that the trial court precluded the tenants from raising other arguments such as lack of notice or estoppel.

We affirm summary judgment for the landlord.

Coghill v. Brown (Lawyers Weekly No. 012-060-22, 6 pp.) (Richard Dietz, J.) Appealed from Vance County District Court (John Davis, J.) Brice Bratcher for defendants; no appellee brief filed. 2022-NCCOA-100

Landlord/Tenant Commercial Lease – Default – Waiver – Acceptance of Rent Even though the defendant-tenant was in default on the parties’ lease due to the tenant’s failure to pay April and May 2020 rent as of May 2020, the plaintiff-landlords waived their right to possession of the leased prem-

ises by accepting June 2020 rent after the breach and before instituting suit for summary ejectment.

We affirm summary judgment for the tenant.

Pursuant to the parties’ lease and G.S. § 42-26(a)(2), the landlords were entitled to terminate the lease when the tenant defaulted by failing to pay rent. However, just because the landlords met the statutory requirements for summary ejectment did not mean they had not waived this right.

Relying on Winder v. Martin, 183 N.C. 410, 111 S.E. 708 (1922), the tenant argues that, when a landlord accepts payment from a tenant with full knowledge that the tenant is in material breach of a lease, the landlord is considered to waive its right to forfeiture.

Winder cited the general rule that “the acceptance of rent by the landlord, with full knowledge of a breach in the conditions of the lease, will ordinarily be treated as an affirmation by him that the contract of lease is still in force, and he is thereby estopped from setting up a breach in any of the conditions of the lease and demanding a forfeiture thereof.”

The rule from Winder has been applied consistently in our jurisprudence over the last century.

Here, the tenant was in default of the lease due to failure to pay April and May 2020 rent as of May 2020.

However, on 8 June 2020, the tenant paid, and the landlords accepted, payment for June 2020 rent. The landlords then purported to terminate the lease on 29 June 2020.

According to Winder, this purported termination was ineffective because the landlords waived their right to terminate the lease when they accepted the June 2020 rent payment. This waiver was binding even though the April and May 2020 rent payments were still outstanding. The fact remains that the June rent was accepted after the breach, and with full knowledge thereof, and before suit was brought. This constituted waiver of the landlords’ right to possession.

Affirmed.

Grace Ridge Gateway Terrace Durham, LLC v. Mattress Firm, Inc. (Lawyers Weekly No. 012-06122, 16 pp.) (Hunter Murphy, J.) Appealed from Durham County District Court (Shamieka Rhinehart, J.) Nelson Harris for plaintiffs; A,anda Bailey, Ellen Mathews and Wade Leach for defendant. 2022-NCCOA-102

Domestic Relations Parent & Child – Juvenile Petition – Unsigned – Subject Matter Jurisdiction Even though baby “Tammy” suffered a series of injuries while she was living with the respondent-mother in the first months of her life, since the juvenile petition in this case was not signed by the designee of the Director of the Mecklenburg County Department of Social Services, the trial court lacked subject matter to hear the case.

We vacate the trial court’s adjudication order.

In re E.M. (Lawyers Weekly No. 012-062-22, 4 pp.) (Hunter Murphy, J.) Appealed from Mecklenburg County District Court (Reggie McKnight, J.) Kristina Graham for petitioner; Christopher Watford for respondent; Michael Mitchell and Amelia Serrat for guardian ad litem. 2022-NCCOA-103

OPINION DIGESTS / 19

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 Ap ri l 11, 2022

Criminal Practice Juvenile – Controlled Substance Sale – Inadmissible & Insufficient Evidence Although there was testimony that the juvenile respondent sold a dividable pill to a fellow student, the only evidence as to the identity of the pill was the student’s testimony that he believed the pill looked like Xanax, the alleged effect of the pill on the student, and a deputy’s testimony that the pill he recovered from the student looked like other pills he had seen that were Xanax. There is no evidence of any positive field tests of the pill in question and no evidence that the juvenile ever admitted to ever possessing Xanax. The student and deputy’s inadmissible lay opinion testimony was the only evidence as to whether the pills in question were, in fact, Xanax.

This was insufficient to prove the juvenile sold a controlled substance.

We reverse the adjudication of delinquency.

The reason such testimony is inadmissible to establish a substance’s identity is because it is legally insufficient, without more, to convince a jury the substance is a controlled substance. As such, it must surely follow that if lay visual identification testimony is inadmissible because standing alone it is not sufficiently reliable for a criminal prosecution, that standing alone, such testimony also cannot be sufficient to secure a criminal conviction. This is precisely because such testimony—without more—can raise but mere suspicion or conjecture as to the identity of the alleged substance.

Moreover, the only additional evidence in this case supporting denial of the juvenile’s motions to dismiss was testimony that the student acted strangely after allegedly ingesting the pill. However, there was no evidence that the behaviors the student allegedly displayed were consistent with someone who had taken Xanax, or any causal relation between the behavior and the ingestion of the pill. In other words, there is no evidence tying the pill to the alleged behavior beyond mere suspicion and conjecture.

Thus, the evidence was not sufficient to establish the pill in question was a controlled substance. Therefore, the juvenile’s motions to dismiss for insufficient evidence should have been allowed.

Reversed.

In re L.J.J. (Lawyers Weekly No. 012-063-22, 11 pp.) (Toby Hampson, J.) (Fred Gore, J., concurring in result only without separate opinion) Appealed from Henderson County District Court (Kimberly GaspersonJustice, J.) LeeAnne Lawrence for the state; Jillian Katz for appellant.

2022-NCCOA-104

Domestic Relations Parent & Child – Neglect Adjudication – Sister’s Injuries The respondent-mother gave conflicting stories as to how her baby daughter, “Zabrina,” was injured, and neither story adequately explained the injuries. Since respondent’s elder daughter, “Gianna,” is autistic and minimally verbal, she is limited in her ability to seek help or communicate what occurs in the home. Under these circumstances, the trial court could conclude Gianna is at a substantial risk of impairment and harm in respondent’s care.

We affirm the adjudication of Gi-

anna as neglected.

In re Z.B. (Lawyers Weekly No. 012-064-22, 12 pp.) (Darren Jackson, J.) Appealed from Mecklenburg County District Court (Aretha Blake, J.) Thomas Diepenbrock and Christopher Watford for respondents; Kathleen Arundell Jackson and Marc Gentile for petitioner; Matthew Wunsche for guardian ad litem. 2022-NCCOA-105

Partnerships Contract – Limited Partnership Agreement – Dissolution Provision – Direct Action In separate provisions, a Delaware limited partnership agreement (1) said the partnership would be dissolved if a general partner resigned and (2) allowed the general partner (who also happened to be the managing general partner) to appoint her successor managing general partner.

The late Emily Verdone was the only general partner. Although she appointed a new managing general partner upon her resignation, no other general partners remained (or were appointed). General partner and managing general partner are separate offices under the agreement. Consequently, the limited partnership was non-judicially dissolved upon Emily Verdone’s resignation as general partner.

We affirm the trial court’s grant of summary judgment.

The limited partnership is governed

by Delaware law. Del. Code Ann. tit.

6, § 17-111 says, “Any action to interpret, apply or enforce the provisions of a partnership agreement ... may be brought in the Court of Chancery.”

This statute simply directs Delaware claimants to the proper court within the enacting state’s own jurisdiction; it does not purport to claim that no court outside of Delaware can exercise jurisdiction over this type of case.

North Carolina’s courts have subject matter jurisdiction over this dispute.

Del. Code Ann. tit. 6, § 17-806 could have been followed to revoke dissolution of the limited partnership.

However, at no point was dissolution revoked by a vote of two-thirds of the limited partnership interests, as the statute requires.

Contrary to defendants’ argument, plaintiff, one of the limited partners, could not have waived the dissolution of the partnership, as the ongoing existence of the partnership was not plaintiff’s personal right, nor did the dissolution result from the invocation of plaintiff’s right; rather, it occurred as a condition of the agreement that formed the partnership.

Defendants do not allege that (1) they lacked knowledge or the means of obtaining knowledge of the truth of the facts in question or (2) they suffered a prejudicial change in position as a result of relying on plaintiff’s conduct. Therefore, estoppel does not apply to plaintiff’s argument that the partnership has dissolved.

Defendant’s arguments regarding laches and the statute of limitations are all based on Delaware law.

However, North Carolina courts have held that, in conflict of laws cases, the law of the forum determines the time within which a cause of action shall be enforced. Having made no contention on appeal that plaintiff’s claims were barred under North Carolina law, defendants have abandoned the affirmative defenses of laches and the statute of limitations.

Plaintiff alleges that the managing partner’s undervaluation of the

partnership caused both (1) plaintiff’s loss of economic and voting power in the partnership and (2) dilution of the value of the partnership. Under Delaware law, plaintiff was entitled to bring his claim for breach of fiduciary duty either directly or derivatively.

Accordingly, plaintiff had standing to bring a claim for breach of fiduciary duty directly.

Affirmed.

Verdone v. Verdone (Lawyers Weekly No. 012-065-22, 28 pp.)

(Hunter Murphy, J.) Appealed from Mecklenburg County Superior Court (George Bell, J.) Kaitlin Price and Joshua Lanning for plaintiff; David Boggs and Lee Falls for defendants.

2022-NCCOA-119

Civil Practice Personal Jurisdiction – Specific Jurisdiction – Texas Company Via affidavits, the Texas defendants showed that they did not realize plaintiff was in North Carolina when they communicated with him, they met him at their Georgia event, their business model was nationwide, and they expected plaintiff to travel across the country in his work for defendants. Although a North Carolina address was listed at the top of the documents signed by the parties in Georgia, defendants presented testimony that, according to plaintiff, this was the address for a third-party business with whom plaintiff worked, and not an address for plaintiff himself.

Based on this record, the trial court could find that defendants never met with plaintiff in North Carolina, did not know plaintiff resided in North Carolina, did not know plaintiff was in North Carolina when they communicated with him, and did not hire him to perform any work directed at North Carolina.

We affirm the trial court’s order granting defendants’ motion to dismiss for lack of personal jurisdiction.

Jones v. Atlas Distributions, LLC (Lawyers Weekly No. 012-06622, 7 pp.) (Richard Dietz, J.) Appealed from Guilford County Superior Court (Susan Bray, J.) Jon Ward and Britney Millisor for plaintiff; Daniel Smith for defendants. 2022-NCCOA-106

Consumer Protection Fair Debt Collection Practices Acts – Real Property – Mortgage Foreclosure Plaintiffs’ complaint and attachments thereto reveal that Madison Revolving Trust 2017 was the holder of plaintiffs’ note. Plaintiffs did not allege that Madison was not a valid note holder or that there was, in fact, no authority to assign the note or deed of trust to Madison or that the assignment to Madison from Springleaf Mortgage Loan Trust 2013 was legally ineffective. Thus, plaintiffs failed to allege Madison lacked a right to foreclose on their property. Therefore, in turn, plaintiffs did not allege facts showing Madison did not have a right of possession in the property so as to sustain a claim for violation of 15 U.S.C. § 1692f(6) of the federal Fair Debt Collection Practices Act. We affirm the trial court’s grant of defendants’ motion to dismiss.

However, plaintiff’s allegations that they obtained a home equity line of credit on their residence are adequate to allege they are “consumers” in that they incurred the debt for household

or personal purposes to withstand a Rule 12(b)(6) motion to dismiss on their North Carolina Debt Collection Act claims. Thus, the trial court erred in granting defendant Trustee Services of Carolina, LLC’s (TSC) motion to dismiss plaintiffs’ NCDCA claim against TSC. Affirmed in part, reversed in part, and remanded.

Dissent

(Murphy, J.): I agree with the majority’s holding that plaintiffs’ complaint sufficiently alleges violations of the NCDCA by defendant TSC. However, I disagree with the majority’s holding that the complaint does not sufficiently allege violations of the federal FDCPA. The majority reads Obduskey v.

McCarthy & Holthus LLP, 139 S. Ct. 1029 (2019), to conclude that “the only claim for which Plaintiffs could seek relief specifically in this case would be Defendants’ alleged violations of [15 U.S.C.] § 1692f(6) as an entity enforcing a security interest” because “the allegations giving rise to Plaintiffs’ Complaint stemmed from Defendants’ actions in enforcing security interests[.]”

However, I read Obduskey to leave open the possibility that a party enforcing a security interest could be considered a general debt collector under the FDCPA where a complaint alleges facts that support the party being a debt collector based on the nature of its business generally. Consequently, I would hold plaintiffs’ complaint sufficiently alleges that defendants are debt collectors based on the nature of their businesses generally and, thus, are subject to the full coverage of the FDCPA. I would also hold the complaint sufficiently alleges that defendants violated several prohibitions of the FDCPA upon which relief can be granted.

As a result, I would reverse the trial court’s dismissal of plaintiffs’ FDCPA claims.

Jones v. Brock & Scott, PLLC (Lawyers Weekly No. 012-067-22, 52 pp.) (Toby Hampson, J.) (Hunter Murphy, J., concurring in part & dissenting in part) Appealed from Davidson County Superior Court (Mark Klass, J.) Jonathan Miller for plaintiffs; Alan Presel, John Benjamin and Archie Sumpter for defendants. 2022-NCCOA-107

Workers’ Compensation Temporary Employee – Staffing Agency The evidence showed that the defendant-staffing agency alone had the power to hire and fire plaintiff and that the agency paid plaintiff’s wages and provided workers’ compensation insurance for plaintiff from its payroll.

Plaintiff, the agency and alleged special employer Atlantic Corp. of Wilmington all knew plaintiff’s job was temporary and he was not a full-time employee on the payroll of Atlantic.

Nothing in the record indicates a contract of any kind was formed between plaintiff and Atlantic. Further, Atlantic could not hire, fire or discipline plaintiff. Atlantic could not and did not pay plaintiff. The Industrial Commission did not err in rejecting the contention of the North Carolina Insurance Guaranty Association that a special employee relationship existed between plaintiff and Atlantic.

Affirmed.

20 / OPINION DIGESTS Thomas v. Century Employer Organization, LLC (Lawyers Weekly No. 012-068-22, 8 pp.) (John Tyson, J.) Appealed from the Industrial Commission. Cameron Simmons for plaintiff; Christopher Blake, Joseph Eason, Matthew Blake and Richard Granowsky for defendants. 2022-NCCOA-116

Domestic Relations Parent & Child – Custody – Non-Party Caretaker At a hearing on the plaintiff-Father’s custody modification motion, Linda Key testified, as a witness for Father, that she had been caring for the parties’ daughter for almost three years, since the defendant-Mother had relocated to Atlanta and “nobody really knows where [Mother] is.” Key testified that the child had been doing well in her and her husband’s care, that they had enrolled the child in school and other development services, and that they provided for the child financially; however, nothing in the record shows that Key was a party to this action, filed any motion to intervene or otherwise join as a party, or requested that she be given custody of the child. Nevertheless, the trial court awarded custody of the child to Key. Key has not joined this action on appeal to defend the trial court’s grant of custody to her.

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

Williams v. Johnson (Lawyers Weekly No. 012-069-22, 7 pp.) (Jefferson Griffin, J.) Appealed from New Hanover County District Court (Jeffrey Evan Noecker, J.) Brittany Hart for plaintiff; no brief filed for defendant. 2022-NCCOA-120

Domestic Relations Separation Agreement – Fraud Allegation – Ratification Even if the defendant-Husband had done more than broadly allege fraud by the plaintiff-Wife regarding the amount of her income (which he did not), he admitted that he continued to accept and retain benefits under the parties’ unincorporated separation agreement (the contract) long after he became aware of Wife’s alleged improprieties. Because Husband did not act within a reasonable time after the discovery of the alleged fraud, he ratified the contract and waived any right he might have had to rescind the contract.

We affirm summary judgment for Wife.

Wooten v. Wooten (Lawyers Weekly No. 012-070-22, 9 pp.) (Jeffery Carpenter, J.) Appealed from Mecklenburg County District Court (Jena Culler, J.) Rebeca Watts for defendant; Fred Wood for plaintiff.

2022-NCCOA-121

Civil Practice Appeals – Notice of Appeal – Parties’ Statement Even though the parties included a statement in the record that “Plaintiff filed and served written notice of appeal on 2 November 2020” from “the 4 October 2020 Order Allowing Relief From and Denying Enforcement of foreign judgment,” subject matter cannot be obtained by consent of the

parties. Since the record does not contain the notice of appeal, as required

by N.C. R. App. P. 9(a)(1)(i), we lack subject matter jurisdiction over this appeal.

Appeal dismissed.

Nehemiah v. Ameriglide, Inc. (Lawyers Weekly No. 012-071-22, 3 pp.) (Donna Stroud, C.J.) Appealed from Wake County Superior Court (George Collins, J.) Amy Lynn Schmitz and Jonathan Carnes for plaintiff; Julia Young Kirkpatrick for defendant.

2022-NCCOA-108

Criminal Practice Search & Seizure – Traffic Stop – Locked Safe – Consent to Search During a traffic stop, defendant consented to a search of his car and of a locked safe discovered inside the car.

Even though defendant disclaimed ownership of the safe, he could consent to a search of the safe because (1) defendant was the owner and sole occupant of the vehicle and (2) he possessed the key that a deputy used to unlock the safe. Based on these facts, it is reasonable to find that defendant was in apparent control of the vehicle and the safe at the time of the stop and was able to consent to the search, regardless of ownership status of the safe.

We affirm the trial court’s denial of defendant’s motion to suppress the methamphetamine found in the safe.

State v. Bates (Lawyers Weekly No. 012-072-22, 7 pp.) (Jefferson Griffin, J.) Appealed from McDowell County Superior Court (Thomas Davis, J.) Scott Slusser for the state; Andrew Nelson for defendant. 2022-NCCOA-109

Criminal Practice Assault – Self-Defense & Defense of Habitation – Aggressor & Invited Guest The state presented evidence to contradict defendant’s claims of selfdefense and defense of habitation through the testimony of witness Jeffery Struckman, who testified that (1) he was invited to defendant’s home by defendant’s brother, Berry; (2) defendant was acting erratically and swinging a machete; (3) Struckman called Berry, who came to defendant’s residence and tried to calm defendant down; and (4) defendant swung the machete and cut Berry’s face with it.

Even though Struckman’s testimony is inconsistent with the testimony of every other witness who described the events of that night, it was sufficient to overcome defendant’s motion to dismiss.

We affirm defendant’s conviction for assault with a deadly weapon inflicting serious injury.

State v. Porter (Lawyers Weekly No. 012-073-22, 7 pp.) (Richard Dietz, J.) Appealed from Brunswick County Superior Court (Jason Disbrow, J.) Rachel Brunswig for the state; Kerri Sigler for defendant. 2022-NCCOA-112

Criminal Practice Sexual Offense with a Child – FirstDegree Sexual Offense – LesserIncluded Offense – Evidence – Other Bad Acts Even though defendant was indicted for sexual offense with a child in

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violation of G.S. § 14-27.4A, and even though that statute was not enacted until several years after the events alleged in the indictment, since the indictment alleged all the elements of first-degree sexual offense under existing statute G.S. § 14-27.4, and since first-degree sexual offense is a lesserincluded offense of sexual offense with a child, the trial court had jurisdiction to enter judgments against defendant for first-degree sexual offense.

We find no error in defendant’s convictions of 15 counts of first-degree sexual offense and 49 counts of taking indecent liberties with a child.

Defendant argues the trial court erred in allowing his former stepdaughter to testify, based upon the court’s conclusion that her testimony was sufficiently similar to the allegations in the indictment. Defendant argues, “The only similarities were the age of the alleged victim and the generic nature of the location as a bathroom.” However, the similarities in the evidence exceed those noted by defendant.

In all instances, defendant held a position of authority over the victims, either as a teacher or a stepfather. Defendant’s dominant position provided him easy access to his child victims.

The chosen location—the bathroom— was more than a generic location, as it provided a closed-door, isolated spot which the children associated with privacy.

The alleged assaults were also similar in nature. Defendant removed only the clothes necessary for him to expose his penis, and he used his penis to perpetrate each alleged assault. Thus, the evidence supports the trial court’s finding that “the facts are similar … specifically her testimony of how it occurred, how he took her to the bathroom.”

Furthermore, the evidence presented at trial supports the trial court’s finding that the incidents involving the alleged victims and the former stepdaughter all occurred in the mid to late 1990s. As the trial court made findings of fact regarding the similarity and temporal proximity of the incidents, we hold the trial court did not err in admitting the stepdaughter’s testimony pursuant to N.C. R. Evid.

404(b).

No error.

State v. Young (Lawyers Weekly No. 012-074-22, 14 pp.) (Donna Stroud, C.J.) Appealed from Iredell County Superior Court (Joseph Crosswhite, J.) Teresa Postell for the state; John Carella for defendant. 2022-NCCOA-115

Criminal Practice Habitual Larceny – Defective Appeal – Representation by Counsel Because the habitual larceny indictments against defendant were not required, by statute or precedent, to allege any facts as to whether defendant was represented by counsel or had waived counsel during any of his prior four larceny convictions, the lack of such allegation does not render the indictments fatally defective. Therefore, the issue defendant seeks to raise by writ of certiorari is without merit.

Since defendant failed to serve notice of appeal on the state, and since he had no statutory right to appeal from a non-sentencing issue following his Alford plea, defendant’s appeal is not properly before us.

Appeal dismissed.

State v. McGill (Lawyers Weekly No. 012-075-22, 7 pp.) (John Arrowood,

J.) Appealed from Catawba County Superior Court (Donnie Hoover, J.) Nathan Childs for the state; Richard Croutharmel for defendant. 2022-NCCOA-111

Criminal Practice Murder – Jury & Jurors – Batson Challenge – Sufficient Reasons – Evidence – Forensic Psychiatrist At the front of a line of jurors waiting to ask the trial judge to defer service due to hardship or other excuses, juror Wallace said, “When this took place I stayed three quarters of a mile or so down the road. I’m very familiar with this case…” When asked whether he leaned one way or the other, Wallace responded, “Yes, sir. I lean towards him being guilty...” Although seven jurors who were in the same line were ultimately seated on defendant’s jury, defendant has provided no evidence that they were unable to render a verdict based on the evidence presented in court. The trial court did not abuse its discretion in denying defendant’s motion to strike the entire group of prospective jurors.

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

Even though the state used three of its first four peremptory challenges against Black jurors, the state gave immediate obvious justifications to exercise a peremptory challenge as to the first two: (1) during voir dire by defense counsel, juror McLean said the death penalty was the “easy way out” and suggested that pictures of the victims “should be placed in the cell with him, [so] he would have to look at it every day to think about what he did” and (2) juror Kirkley responded to the state’s question about her feelings on the death penalty by saying, “I’m unsure of my feelings. I think that definitely would have to be without a shadow of a doubt that that person would be guilty of the crime that could – case that could lead to somebody’s death.” Given these jurors’ responses and the absence of any statements or questions by the prosecutor which give rise to an inference of racial discrimination, we find no clear error in the trial court’s ruling that defendant failed to make a prima facie showing of purposeful racial discrimination.

Upon the state’s motion, the trial court excluded from defendant’s forensic psychiatrist’s report the following language: “[Defendant] reported on the day of the offense he did cocaine all day. He stated he got $100 from his wife earlier in the day. He stated he came home and found his wife and father-in-law dead.”

Statements made to a psychiatrist for the purpose of preparing for trial lack the trustworthiness generally attributed to statements made for medical diagnosis or treatment. Such statements therefore may be ruled inadmissible under N.C. R. Evid.

803(4).

In its ruling, the trial court stated that Dr. Maddox evaluated the defendant “as a forensic psychiatrist and not as a clinical psychiatrist ... and not for the primary purpose of diagnosis and treatment[,]” that Dr. Maddox “informed the defendant that a report would be issued and possibly used at his upcoming trial[,]” and that her report “makes no diagnosis and recommends no treatment.”

Given these findings, the self-serving nature of defendant’s statement that

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he came home and found the victims dead, and the fact defendant was unavailable for cross-examination, the trial court did not abuse its discretion in excluding the quoted portion of the psychiatrist’s report.

No error.

State v. English (Lawyers Weekly No. 012-076-22, 30 pp.) (Darren Jackson, J.) Appealed from Scotland County Superior Court (William Bell, J.) Kimberly Callahan for the state; Kathryn VandenBerg for defendant.

2022-NCCOA-110

Criminal Practice

and proceed to trial, against their advice; a personality conflict; or even defendant’s rudeness, could not be a basis for concluding that defendant forfeited his right to counsel and requiring him to proceed pro se.

The trial court deprived defendant of his constitutional right to counsel.

We vacate the judgment of the trial court and remand for a new trial.

State v. Washington (Lawyers Weekly No. 012-077-22, 20 pp.) (Allegra Collins, J.) Appealed from Onslow County Superior Court (Henry Stevens, J.) Juliane Bradshaw for the state; Dylan Buffum for defendant.

2022-NCCOA-114

Constitutional – Right to Counsel – Forfeiture – Attorney Withdrawals

Criminal Practice

The trial court entered a written order finding that “due to the number of attorneys appointed and/or hired on this case and then subsequently fired on this case, [the] court orders Defendant’s right to an attorney forfeited.” However, defendant did not fire any of the three attorneys hired or appointed to represent him in this case; rather, each attorney withdrew from the representation. The attorneys’ withdrawals, whether based on defendant’s desire to plead not guilty

Constitutional – Right to Counsel – Waiver – Permissible Punishments

to proceed pro se, the trial court was required to ensure that defendant “comprehends ... the range of permissible punishments,” but the trial court failed to do so. The state has not advanced any argument that the deprivation of defendant’s right to counsel was harmless beyond a reasonable doubt.

We vacate the trial court’s judgments and remand for a new trial.

State v. Thomas (Lawyers Weekly No. 012-078-22, 15 pp.) (Toby Hampson, J.) Appealed from Guilford County Superior Court (Michael Duncan, J.) Benjamin Spangler for the state; Kirby Smith for defendant.

2022-NCCOA-113

Civil Practice

Before allowing defendant to proceed to trial pro se, the trial judge indicated that he had advised defendant of all permissible punishments; however, defendant was only so advised prior to being indicted as a habitual felon. Thereafter, defendant agreed that he was facing “a big number,” but he was never advised as to just how big. Before allowing defendant

Personal Jurisdiction – Virginia Horse Sale – Contract Addendum – Remand Mandate After the North Carolina plaintiff went to Virginia to buy the Virginia defendants’ horse, “Fred,” defendant Allyson Coluccio added the following language to the parties’ contract: “As per my agreement upon arrival at Paramount Show Stables 3417 Old Milburnie Rd. Raleigh, NC 27616

Opening Nite aka Fred (horse) will behave in the same manner as when he was ridden at Hidden Ridge Middleburg Va. this includes him being quiet, honest and brave for a child or amateur rider.”

Although this warranty provision refers to North Carolina, that is not enough to create purposeful availment of the privilege of conducting activities in North Carolina.

We affirm the trial court’s dismissal of the Virginia defendants for lack of personal jurisdiction.

Based on affidavits which the trial court found credible, although the Virginia defendants were aware that plaintiff was from North Carolina and would be taking Fred to North Carolina, the contract for the sale of Fred was not formed or performed in North Carolina, plaintiff took possession of Fred in Virginia, the Virginia defendants did not intentionally direct any actions to North Carolina and never directed any communication to North Carolina, and they never took any action in North Carolina related to the transactions or occurrences alleged in plaintiff’s complaint. We are bound by the trial court’s findings, and they support its conclusion that North Carolina lacks specific personal jurisdiction over the Virginia defendants.

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22 / OPINION DIGESTS On a previous appeal, this court specifically directed the trial court, on remand, to make the required findings “based on the appropriate evidence in the record.” The plain terms of our remand instructions to the trial court limited its consideration to the appropriate evidence already contained in the record—namely, the parties’ existing affidavits and any allegations from the unverified complaint not disputed by those affidavits. The trial court correctly refused plaintiff’s request to submit additional evidence on remand.

Dow-Rein v. Sarle (Lawyers Weekly No. 012-079-22, 10 pp.) (Richard Dietz, J.) Appealed from Wake County Superior Court (Keith Gregory, J.) Amie Sivon, Dorothy Bass Burch and Sandra Mitterling Schilder for plaintiff; Daniel Gibson for defendants. 2022-NCCOA-101

Real Property Foreclosure – Upset Bid – COVID Filing & Limitations Extensions Even if the time for filing an upset bid in a foreclosure action is considered a period of limitation, the Chief Justice’s emergency extension of “periods of limitation” to the close of business on 31 July 2020—even considering an emergency directive declaring documents timely filed if they were mailed and received within five business days of the due date for filing— the plaintiff-homeowner’s attempted upset bid would still not be timely since she put the bid in the mail on 6 August 2020 and she does not allege it was received by the clerk of court on 7 August 2020.

We affirm the trial court’s dismissal of plaintiff’s declaratory judgment action.

Background

The defendant-homeowners’ association initiated a foreclosure action against plaintiff’s home for unpaid dues. The sale took place on 18 March 2020, and the HOA’s bid was the highest. That same day, defendant Frosty Property, LLC, submitted an upset bid of $3,902.35.

Thereafter, Chief Justice Cheri Beasley filed several orders extending the times for filing documents. An order filed on 21 May 2020 reiterated an earlier order’s extension of the time for filing documents to 1 June 2020 and also clarified that “all periods of limitation that were set to expire between 16 March 2020 and 31 July 2020 ... are hereby extended until the close of business on 31 July 2020.” An earlier emergency directive had declared that documents delivered by the U.S. Postal Service to the clerk of superior court would be deemed timely filed if received within five business days of the date the filing was due.

Plaintiff mailed her attempted upset bid on 6 August 2020. She filed this action the next day, requesting a declaration that she was the highest bidder. Ultimately, the clerk of court did not accept the bid.

Discussion

Even if we accept plaintiff’s argument that extending the timeframe should be categorized as the extension of a period of limitation rather than an extension of time for filing, which would have only extended the deadline to 8 June 2020 for receipt of mailed bids, plaintiff still did not timely file her upset bid.

If the deadline for submitting upset bids was 31 July 2020, a Friday, then

per Emergency Directive 15, which deems pleadings and other documents “timely filed if received within five (5) business days of the date the filing is due[,]” then plaintiff’s bid had to be received by the clerk of court before close of business on Friday, 7 August 2020 in order to be deemed timely filed.

Plaintiff mailed her bid on 6 August 2020. If plaintiff had gone in-person to the clerk of court on 6 August 2020 to file her upset bid instead of mailing it, the bid would have been rejected as untimely. Significantly, plaintiff made no allegation that her upset bid was received by the clerk of court by 7 August 2020, only that she mailed her bid on 6 August 2020.

As plaintiff’s complaint did not allege that her upset bid was received by the clerk of court on or before 7 August 2020, she has failed to state a claim upon which relief can be granted. Specifically, plaintiff has failed to sufficiently allege that she timely filed her upset bid even when interpreting Chief Justice Beasley’s orders to establish the latest deadline possible.

Reinforcing this conclusion is the fact the record contains no evidence that the clerk of court received Plaintiff’s upset bid before the close of business on 7 August 2020. The trial court properly granted defendant Frosty’s motion to dismiss.

We note that Frosty’s contractual rights as the highest bidder became fixed when the bidding period closed and, as a named party in plaintiff’s complaint with a sufficient stake in the outcome of the controversy, Frosty had standing to bring its motion to dismiss.

Affirmed.

Utley v. Swann’s Mill Homeowners Association (Lawyers Weekly No. 012-080-22, 11 pp.) (Darren Jackson, J.) Appealed from Durham County Superior Court (Michael O’Foghludha, J.) James White for plaintiff; Ryan Adams and David Martin for defendants. 2022-NCCOA-117

Corporate LLC – Operating Agreement – Unwritten Amendment – Equity Interest The operating agreement for the plaintiff-limited liability company does not contain a rule of equal dignities, requiring amendments thereto to be in writing. As a result, defendants’ forecasted evidence— (1) that defendant Smith was induced to leave another sports agency to join plaintiff and (2) email communications noting Smith’s equity interest during the due diligence for a loan and outside investment in plaintiff—raises a genuine issue of material fact as to whether Smith holds an equity interest in plaintiff.

We reverse the trial court’s grant of summary judgment for plaintiff.

Remanded.

Vanguard Sports Group, LLC v. Smith (Lawyers Weekly No. 012081-22, 7 pp.) (John Tyson, J.) Appealed from Wake County Superior Court (Bryan Collins, J.) Rebecca Riley, Andrew Kim and Daniel Boyce for plaintiff; Anthony Young for defendants. 2022-NCCOA-118

Civil Practice Interlocutory Appeal – Arbitration – Domestic Relations – Prenuptial Agreement The trial court’s denial of peti-

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tioner’s many motions aimed at forestalling arbitration is interlocutory.

Although petitioner asserts the risk of inconsistent verdicts and raises interesting issues as to whether arbitration is appropriate, none of these issues will be waived, nor will petitioner lose the right to have them determined, once the arbitrator has rendered an opinion and award. There is no risk of inconsistent verdicts.

Appeal dismissed.

The parties agreed to arbitration in their premarital agreement; as such, petitioner is bound by this arrangement. Being required to engage in an arbitration for which one has contracted and which one has sought to enforce by requesting the initial appointment of an arbitrator does not— much like being required to engage in a trial prior to appealing ancillary matters—deprive one of a substantial right.

This case is replete with evidence that petitioner, having agreed to an arbitration and initially seeking the involvement of the courts, has, once he did not obtain the arbitrator he sought, engaged in a concerted pattern to delay and obstruct the arbitration through a series of appeals and motions. Therefore, in our discretion, we deny his petition for writ of certiorari.

Lindberg v. Lindberg (Lawyers Weekly No. 012-082-22, 13 pp.) (John Arrowood, J.) Appealed from Chatham County Superior Court (Allen Baddour, J.) Matthew Nis Leerberg, Kip Nelson and Jonathan Melton for petitioner; Matthew Ballew, Robert Zaytoun and Cole Williams for respondent. 2022-NCCOA-142

Domestic Relations Parent & Child – Custody Modification – No Changed Circumstances – Attorney’s Fees Where the trial court determined that “there has not been a substantial change in circumstances since the entry of the [2018 custody order] that would warrant modification at this time,” the trial court erred when it nevertheless modified the parties’ responsibilities under the order, particularly regarding communication.

We reverse the custody modification portion of the trial court’s order.

We vacate the attorney’s fee award and remand for a new hearing.

It is unclear which portion of the trial court’s attorney’s fee award related to the issue of the defendant-Father’s alleged contempt and which portion related to the modification of the custody order. On remand, the district court is to take into consideration our resolution of the appeal from the custody modification as well as the superior court’s apparent dismissal of the contempt charge against Father.

Harris v. Harris (Lawyers Weekly No. 012-083-22, 5 pp.)

(Chris Dillon, J.) Appealed from Durham County District Court (Clayton Jones, J.) Logan Shipman for plaintiff; Scott Allen for defendant. 2022-NCCOA-137

Domestic Relations Equitable Distribution – Civil Practice – Consent Judgment Error – Rule 60 Motion – Reasonable Time Although the plaintiff-Wife’s motion to correct a consent judgment

was filed more than a year after entry of the judgment, during that time, the parties were working toward complying with the terms of the judgment as they intended them to be, not as they were incorrectly written. Since Wife’s counsel filed a motion under N.C. R. Civ. P. 60 just eight days after she discovered the error, the motion was timely filed.

We affirm the trial court’s grant of Wife’s Rule 60 motion.

All the evidence presented at the hearing on the Rule 60 motion showed that the parties intended for the defendant-Husband to pay a distributive award to Wife after Wife transferred her interest in the marital home and a business to Husband. The trial court did not abuse its discretion when it granted Wife’s motion under N.C. R. Civ. P. 60(b)(6) to correct a consent order that incorrectly said Wife was to pay the distributive award to Husband.

The trial court concluded Wife discovered the error within a reasonable time after the entry of the consent order on 25 September 2018, and based upon all the facts and circumstances presented, timely filed the Rule 60 motion. This conclusion is supported by the trial court’s finding that the error was first brought to light when Husband’s new attorney wrote Wife a letter dated 3 April 2020, and Wife’s counsel, Julie Ramsey, called to inquire about the payment. Prior to this time, Wife, by and through her attorney, attempted to settle the provisions of the consent order through Husband’s previous attorney, who withdrew from the matter in November 2019.

Furthermore, prior to April 2020, no one asserted the obligation to pay the award fell on Wife, and Husband made attempts to pay the money by taking out a loan to cover the amount. After Wife discovered the error on 7 April 2020, she filed the Rule 60 Motion on 15 April 2020, a mere eight days after the discovery of the error.

Thus, the trial court’s findings of fact—supported by the evidence— support its conclusion that the delay in filing the Rule 60 motion was reasonable under the circumstances.

Therefore, the trial court’s conclusion, in turn, supports its decision to allow amendment of the consent order. Consequently, the trial court did not abuse its discretion in granting Wife’s motion under Rule 60(b) (6).

Affirmed.

Hicks v. Hicks (Lawyers Weekly No. 012-084-22, 13 pp.) (Toby Hampson, J.) Appealed from Person County District Court (Caroline Slater Burnette, J.) Ronnie King for defendant; Patricia Shields for plaintiff. 2022-NCCOA-139

Domestic Relations Parent & Child – Visitation Denial – Autistic Child – TF-CBT The respondent-Father’s 12-yearold autistic son, “Keith,” reported that, while visiting Father, he was exposed to pornography, Father’s drug use, and guns. Keith’s therapist testified that trauma-focused cognitive behavioral therapy (TFCBT) is not effective in helping children deal with and overcome their trauma if they still have contact with the named perpetrator. The therapist’s testimony is competent evidence supporting the trial court’s finding that contact between Father

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and Keith would risk the effectiveness of Keith’s TF-CBT treatment.

We affirm the trial court’s order denying Father visitation with Keith.

In re K.W.M. (Lawyers Weekly No. 012-085-22, 10 pp.) (Fred Gore, J.) Appealed from New Hanover County District Court (J. H. Corpening, J.) Sean Vitrano for respondent; Jennifer Cooke for petitioner; Matthew Wunsche for guardian ad litem. 2022-NCCOA-140

Civil Practice Involuntary Commitment – Insufficient Findings – Unchecked Boxes On the involuntary commitment order form, the trial court included details about the psychiatrist’s examination report below line four, but it did not check box 4 to expressly incorporate the report into its order.

Likewise, the trial court made handwritten notes below box five but did not check the box expressly indicating the notes constituted findings found by clear and cogent evidence. Without either box checked, there are no express findings made by the trial court, and we cannot infer the trial court intended to incorporate either its notes or the examination report as findings.

Without any findings found by clear, cogent, and convincing evidence, the order is insufficient to support an involuntary commitment.

We vacate the involuntary commitment order and remand to the trial court for entry of additional findings, if any can be made on the basis of the existing record, to support its conclusion that respondent was a danger to others.

The trial court did not violate respondent’s due process right to an impartial tribunal. The state was not represented by counsel. When the psychiatrist took the witness stand, the trial court said only, “Now let me know what is you want me to know about this matter”; “Doctor do you mind slowing down a little bit? I have to take notes, and --”; and “is it your testimony that she is a danger to herself or not?” Thus, the trial court did not ask questions meant to prejudice either party or impeach any witness

C o nt inu e d f r o m 6 ►

payment during the first twenty years. The Allen Trust may have to pay these charges all at once, in year 21. But the COI charges themselves are the same.”

Nor had the district court abused its discretion when it found the settlement fair, reasonable and adequate, Motz said. The parties litigated their claims through mo-

C o nt inu e d f r o m 2 ►

rights law has to prove that the case brought against him “ended without a conviction.” The justices rejected a higher bar that federal appeals courts in much of the country had adopted that said the person had to show their case ended because they were innocent.

Justice Samuel Alito wrote in a dissent that his colleagues’ decision “has no basis in the Constitution and is almost certain to lead to confusion.” He was joined by two other conservative justices, Justice Clarence Thomas and Justice Neil Gorsuch.

The case before the justices in-

but merely sought to elicit information it deemed helpful to its decision.

In re T.B. (Lawyers Weekly No. 012-086-22, 11 pp.) (Toby Hampson, J.) Appealed from Durham County District Court (Pat Evans, J.) Erin McKee for the state; James Grant for respondent.

Civil Practice Appeals – Motion to Reconsider – Discovery – Protective Order

recommendation, and even though the oral surgeon and physical therapist sent the dentist treatment updates, under the continuing course of treatment doctrine, the statute of limitations for plaintiff’s claim against the dentist started to run on the day of her last visit with him, not on the day he received the last update on her treatment from the oral surgeon.

We affirm the trial court’s dismissal of plaintiff’s complaint as untimely.

Defendants have appealed the trial court’s denial of their motion to reconsider the court’s earlier imposition of a protective order barring defendants from inquiring into plaintiff’s sexual encounters other than the alleged assault by defendant Manojkumar Gandhi. Although the original protective order may have affected a substantial right, defendants failed to appeal from that order. The trial court’s reconsideration order is not an order denying discovery and thus cannot affect a substantial right entitling defendants to immediate appeal.

Appeal dismissed.

The trial court’s reconsideration order is interlocutory. It in no way makes any determinations as to the scope of discovery. Moreover, defendants cite to no cases holding that a reconsideration order affects a substantial right, and we are aware of none.

Lowrey v. Choice Hotels International, Inc. (Lawyers Weekly No. 012-087-22, 5 pp.) (Jefferson Griffin, J.) Appealed from Durham County Superior Court (Orlando Hudson, J.) Ruth Sheehan, Charles Francis, Harvey Kennedy and Harold Kennedy for plaintiff; Skylar Gallagher, Craig Tierney, Leo Daughtry and Luther Starling for defendants. 2022-NCCOA-143

Background

Tort/Negligence

Continuing Course of Treatment

The defendant-dentist removed the plaintiff-patient’s wisdom tooth.

According to the notes of a colleague who assisted, a large portion of the maxillary tuberosity fractured off with the tooth during extraction.

However, the dentist told the patient that a small piece of bone in her jaw had broken during the procedure.

After the procedure, the patient suffered intense pain in her face and jaw. The dentist told her it was “referred pain” that could be due to “over extending her jaw muscles throughout the long procedure.” After her last visit with the defendant-dentist on 30 January 2017, plaintiff followed defendant’s recommendations and saw an oral surgeon and a physical therapist, both of whom sent treatment updates to the dentist. The last such update was sent on 10 May 2017.

On 31 January 2020, plaintiff filed a motion to extend the statute of limitations pursuant to N.C. R. Civ. P. 9(j), and Judge Alan Thornburg entered an order extending the statute of limitations to 29 April 2020.

Plaintiff filed her medical malpractice complaint against the dentist on 29 April 2020. Judge Marvin Pope granted the dentist’s motion to dismiss the complaint as time-barred.

that letters written by a surgeon to a patient encouraging the patient to seek follow-up treatment with the surgeon did not constitute treatment.

Following the logic and analysis in Hensell, the correspondence containing treatment updates between defendant and plaintiff’s physical therapist and oral surgeon do not constitute “treatment” for purposes of the continuing course of treatment doctrine. Thus, assuming plaintiff did not discover her injury earlier, the latest the statute of limitation began to run in this case was 30 January 2017; and the statute of limitation would subsequently expire on 30 January 2020. Plaintiff filed her motion to extend the statute of limitation on 31 January 2020, one day after the latest the statute of limitation could have expired. As a result, plaintiff’s claim is barred by the statute of limitation.

Different Judges

Even though the plaintiff-patient saw an oral surgeon and a physical therapist at the defendant-dentist’s

The three-year statute of limitations for a medical malpractice claim starts to run when the defendant’s treatment of the plaintiff ended or the time at which the plaintiff knew or should have known of her injury, whichever comes first. In Hensell v. Winslow, 106 N.C. App. 285, 416 S.E.2d 426, disc. rev. denied, 332 N.C. 344, 421 S.E.2d 148 (1992), we held

One superior court judge may not overrule another superior court judge. Callaway v. Ford Motor Co., 281 N.C. 496, 189 S.E.2d 484 (1972).

However, a judge has the power to modify an interlocutory order made by another whenever there is a showing of changed conditions which warrant such action.

Judge Thornburg’s extension order was interlocutory because it did not finally determine or complete the suit.

There was a change of circumstances in this case: In her motion to extend the statute of limitation, plaintiff alleged her final follow-up visit with defendant occurred on 3 February 2017 while plaintiff’s complaint alleged the final follow-up visit was 30 January 2017. If plaintiff had alleged the same facts in her motion to extend the statute of limitation as she did in her complaint, Judge Thornburg’s ruling likely would have been different.

Thus, Judge Pope properly overruled to the extent necessary the order entered by Judge Thornburg to meet the justice and equity of the case.

Affirmed.

Harrison v. Morris (Lawyers Weekly No. 012-088-22, 9 pp.) (Fred Gore, J.) Appealed from Buncombe County Superior Court (Marvin Pope, J.) George Moore for plaintiff; David Hawisher and Phillip Jackson for defendant. 2022-NCCOA-138

tion practice, discovery, dispositive motions and protracted mediation; settlement was reached after multiple discussions and hearings.

The Allen Trust’s contention that it was giving up its claims against the insurers in the settlement for nothing also failed to pass muster.

“The district court found that at this time, the Allen Trust did not have much of a claim at all, and so was not really giving up very much,”

Motz wrote, noting that the trust’s concerns were not widespread, as it was the only class member to object to the settlement.

Further, the district court carefully weighed the size of the proposed settlement against the claims at issue and found that it compared favorably to similar deals.

Neither Jeven Robinson Sloan of Loewinsohn Flegle Deary Simon in Dallas, Texas, who represented the

trust, nor George Walton Walker III of Boles Holmes White in Auburn, Alabama, who represented the insurer responded to requests for comment.

The 25-page decision is The 1988 Trust for Allen Children dated 8/8/88 v. Banner Life Insurance Company (Lawyers Weekly No. 001-056-22). The full text of the opinion is available online at nclawyersweekly.com.

volved the 2014 arrest of Brooklyn resident Larry Thompson who sued for malicious prosecution after charges against him resulting from a scuffle with police were dropped.

Lower courts ruled against Thompson saying it wasn’t enough that the case against him ended without a conviction. They said he had to show it ended with “affirmative indications of innocence” such as an acquittal or a dismissal by a judge along with a statement that the evidence was insufficient. The Supreme Court disagreed.

Thompson’s lawyer Amir Ali of the MacArthur Justice Center said in an interview he was “very pleased with the court’s decision” and that it was

“welcome and needed.” Ali said that prior to the court’s decision there was a “completely unjust and really senseless barrier to bringing these lawsuits” and that the court had “removed that unjust barrier.” Ali said his client will now “have his day in court” and get the opportunity to prove his malicious prosecution claim.

The case against Thompson began when authorities were called to his apartment. Thompson’s sister-in-law, whom Thompson’s lawyers said has “cognitive delays,” called 911 to report Thompson was sexually abusing his infant daughter. Initially two EMTs arrived and Thompson, not knowing his sister-in-law had called, told them

they had the wrong apartment.

After the EMTs left, police officers arrived and Thompson refused to let them in without a warrant. After a scuffle, Thompson was arrested and charged with resisting arrest and obstructing governmental administration. He was held two days, but the charges against him were dropped.

The baby was examined at the hospital and no evidence of abuse was found, only diaper rash. Thompson’s lawsuit followed.

The Biden administration had urged the court to side with Thompson as did the American Civil Liberties Union and NAACP, among other organizations.

Medical Malpractice – Civil Practice – Statute of Limitations – Continuing Course of Treatment – Different Judges’ Rulings

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