NCLAWYERSWEEKLY.COM Part of the
VOLUME 34 NUMBER 10 ■
network
MAY 9, 2022 ■ $8.50
‘Aggressor’ charge was reversible error ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com
Former public defender can sue federal judiciary ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com While sovereign immunity will limit her claims, a former federal public defender in North Carolina can pursue claims against the judiciary for failing to take immediate and effective action regarding her sexual harassment complaints, the 4th U.S. Circuit Court of Appeals unanimously ruled on April 26. The ruling partly reverses a 2020 dismissal of the lawsuit by U.S. District Court Judge William G. Young. Because the 4th Circuit is a defendant, judges from other circuits
were designated to hear the case. The three-judge panel consisted of 10th Circuit Senior Circuit Judge Mary Beck Briscoe, 6th Circuit Senior Circuit Judge Ronald Gilman, and 8th Circuit Senior Circuit Judge Michael Melloy. In a nutshell, the court found that the Fifth Amendment to the U.S. Constitution secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. “We have no doubt, given the Supreme Court’s equivalent treatment of equal protection claims under the Fifth and Fourteenth Amendments,
that they should be extended to retaliation claims brought under the equal protection component of the Fifth Amendment’s Due Process Clause,” Briscoe wrote.
‘Quid pro quo’ harassment
Caryn Strickland, who worked for the Federal Public Defender’s Office in the Western District of North Carolina, claims that she was harassed by her supervisor, the first assistant public defender, who “lavished” her with attention, created “shadowing” activities
A woman serving 19 years in prison for killing her paramour inside her bedroom will get a new trial after the North Carolina Court of Appeals unanimously determined that the trial court erred by instructing the jury on the aggressor doctrine. The aggressor doctrine denies an individual the benefit of a self-defense claim where the user of force is the aggressor in a situation, but even though the defendant here shot the deceased in the back and the pair had a history of vulgar arguments, evidence does not show that she was acting as the aggressor at the time that she fired the fatal shots. “In determining whether a selfdefense instruction should discuss the ‘aggressor’ doctrine, the relevant issue is simply whether the record contains evidence from which the jury could infer that the defendant was acting as an ‘aggressor’ at the time that he or she allegedly acted in selfdefense,” Judge April Wood wrote in the court’s April 19 opinion. “Where the trial court delivers an aggressor instruction ‘without supporting evidence, a new trial is required.”
‘Tumultuous’ times
Defendant Wendy Hicks met Caleb Adams, who was married, in September 2015 and the pair began an intimate and tumultuous relationship that lasted until Adams’ death on June 13, 2017. Hicks said that weeks
See Strickland Page 6 ►
S e e S t a t e v. P a g e 6 ►
COA: Extortion charge need not name alleged victim ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com A charging document in a juvenile action for extortion need not specifically identify the alleged victim for a trial court to have jurisdiction, the North Carolina Court of Appeals has ruled in a matter of first impression. In its April 19 opinion, the appeals court unanimously held that a petition that “clearly apprised [the juvenile] of the conduct for which he was being charged with sufficient specificity to allow him to prepare an adequate defense” is not fatally defective.
“The requirement that a victim be named with any specificity at all stems not from a material consideration of the victim’s identity, but from a need to affirmatively prove that the defendant acted with the requisite felonious intent to take another’s property, not to take his own,” Judge Jefferson Griffin wrote for the court. In 2020, juvenile “Jeremy” obtained pictures of an eighth-grade classmate — “Cecilia” — from the girl’s cell phone. According to court documents, Jeremy and three other students, including Cecilia, were working on a class project when Jeremy took the girl’s phone to the bathroom for several moments. Sometime later, Cecilia told
school officials that three classmates were using a picture of her wearing only underwear and a bra to coerce her into buying them cookies from the cafeteria. She also said that Jeremy threatened to expose the photo if she didn’t do his math homework. After investigating, a school resource officer, believing that Jeremy and the other students had shared the photo on social media, filed a juvenile petition against Jeremy for extortion. That petition was ultimately dismissed but an identical petition resulted in the Surry County S e e JA D P a g e 5 ►
INSIDE BURNED BOOKS
SANCTIONS VACATED
COMMENTARY
Prison inmate may receive compensation for value of destroyed books.
Defamation, tortious interference claims not frivolous.
Has the legal system failed us? Not so PFAS-t!
Page 3
Page 3
Page 4
2 / NEWS
N O R T H C A R O L I N A L A W Y E R S W E E K LY I M ay 9, 2022
NEWS BRIEFS North Carolina sheriff’s office arrests man in 2012 killing CLINTON, N.C. (AP) — A North Carolina man has been arrested in connection with a murder case dating back to 2012, authorities said. News outlets reported the Sampson County Sheriff’s Office said in a statement on Wednesday that Glen Allen Stewart, Jr. was identified as a person of interest during the initial investigation into the death of Kim Douglas Mckoy Jr., whose body was discovered on a road on July 19, 2012. But authorities said there was not enough evidence to proceed with charges. Mckoy died from a gunshot wound, the sheriff’s office said. Last September, investigators met with District Attorney Ernie Lee, who determined there was sufficient evidence against Stewart to bring the murder charge and to present an indictment to the Sampson County grand jury. An indictment was returned in October, and on Tuesday, Stewart was served with an order for arrest. A judge issued Stewart a $500,000 secured bond and ordered him to electronic house arrest in the event bail is posted. The Sampson Independent reports that Stewart is being held currently in the federal prison system for unrelated charges.
North Carolina woman charged in fatal hitand-run GREENSBORO, N.C. (AP) — Police say a North Carolina woman is accused of driving away after her car hit and injured a pedestrian last fall. The victim died this week. News outlets report Nyquasia Shybreal Rowell, 22, of High Point was driving south on North Spring Street in Greensboro in the center travel lane early on Oct. 16 when she entered an intersection at Friendly Avenue on a green light, Greensboro police said. Scarlett Ann Hill, 28, of Greensboro was crossing Spring Street within a crosswalk but against the pedestrian signal when Rowell’s car hit her and left the scene, police said. Hill died on Sunday. Rowell is charged with felony hit-and-run, driving while license revoked and vehicle regulatory violations.
North Carolina father accused in death of 3-month-old son SMITHFIELD, N.C. (AP) — A North Carolina man is facing murder and abuse charges after his 3-month-old son died this week. a sheriff’s office said. The Johnston County Sheriff’s Office said Andrew Chance Weckesser, 27, was charged on Wednesday with murder for the death of his son, who died on Tuesday from his injuries, news outlets reported. Sheriff’s deputies began their investigation on April 22 after responding to an assault call from Wake Medical Hospital. Staff members told law enforcement that a 3-month-old was admitted and was
on life support. The staff also told investigators that the child had signs of trauma consistent with abuse. Weckesser, who is jailed without bond, was charged on April 27 with intentional child abuse resulting in severe physical injury. The charge was upgraded after the child died. It wasn’t immediately known if Weckesser had an attorney.
Another NC minisession begins, with no action expected RALEIGH, N.C. (AP) — The North Carolina General Assembly will bypass work this week during another reconvened session that had been previously announced to take up any unexpected business. The House and Senate gaveled in their floor meetings at midday Wednesday, and both adjourned within 15 minutes. The meetings were sparsely attended. There are no plans for recorded votes before the session ends Friday, according to House Speaker Tim Moore and Senate leader Phil Berger. When lawmakers held their last voting session in March, they scheduled two mini-sessions in April and May in which they could act if needed. No action occurred during the three-day session in April, either. The full load of state lawmakers will return to Raleigh soon. The General Assembly’s traditional budget-adjusting session begins May 18. Berger said in an interview that he and Moore are aiming to complete that session by July 1.
US Rep. Butterfield tests positive for COVID-19 RALEIGH, N.C. (AP) — U.S. Rep. G.K. Butterfield announced on Wednesday that he’s tested positive for COVID-19. Butterfield, a Democrat from Wilson who has represented northeastern North Carolina since 2004, said he’ll be working from home this week during an isolation period, in keeping with federal guidelines and guidance from the Office of the Attending Physician in Congress. Congress is not holding floor votes this week. “I tested positive for COVID-19 today, and I am experiencing mild symptoms. Thankfully, I am fully vaccinated and boosted,” Butterfield said in a news release. Butterfield is the latest in a number of political figures who serve in Washington to announce a positive test, including Vice President Kamala Harris. U.S. Rep. Deborah Ross, a Democrat from Raleigh, announced a positive test last week. Butterfield, a former state Supreme Court justice and ex-chair of the Congressional Black Caucus, is not seeking reelection this fall to his 1st Congressional District seat.
Atlanta agrees to pay nearly $1M to man shot by officer ATLANTA (AP) — The city of Atlanta has agreed to pay nearly $1 million to a North Carolina
man who was shot and injured by a police officer as he was leaving an event downtown in February 2017. The Atlanta City Council on Monday approved a $999,000 settlement for Noel Hall. Hall and his family had come to Atlanta because his son was participating in a supercross event. As he and his wife were leaving with their grandchildren around 10:30 p.m., Atlanta police Sgt. Mathieu Cadeau, who was working off duty as security, told Hall he couldn’t make a left turn. When Hall made the turn anyway, Cadeau fired into the vehicle. A bullet hit Hall in the arm and exited through his chest, barely missing his heart. The police department fired Cadeau in May 2017. He was indicted in October 2018 on charges of aggravated assault, violation of his oath and reckless conduct. Cadeau pleaded guilt in early 2020 and was sentenced to 30 years of probation, according to The Atlanta JournalConstitution.
Court mulls ruling that blocked NC Rep. Cawthorn challenge RALEIGH, N.C. (AP) — A federal appeals court on Tuesday questioned whether a lower court got it right when it blocked a challenge of North Carolina Rep. Madison Cawthorn’s candidacy by voters who cited a section of the Constitution addressing insurrection as disqualifying him. Three judges on the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, heard arguments in a lawsuit that the first-term Republican congressman filed to derail the formal challenge sent to the State Board of Elections from going forward. U.S. District Judge Richard Myers ruled for Cawthorn in March and prevented the board from formally examining whether he should remain on ballots, and the voters appealed. Cawthorn is one of eight candidates on the May 17 primary ballot for the 11th Congressional District. There’s no timetable on when the judicial panel will rule, but the court did accelerate the appeal process. The challenge focused on Cawthorn’s involvement in the rally that preceded the U.S. Capitol riot in January 2021 at which the presidential election outcome was questioned. The voters cite Section 3 of the 14th Amendment ratified in 1868 that is designed to prevent congressmen who had fought on the Confederate side during the Civil War from returning to Congress. Similar challenges have been filed against members of Congress in other states who have been strong supporters of former President Donald Trump, including Georgia Rep. Marjorie Taylor Greene. A Georgia state judge recently heard testimony from Greene but has yet to issue a finding. They will be passed on to Secretary of State Brad Raffensperger, who will ultimately determine whether Greene is qualified. Some circuit judges Tuesday raised doubts about Myers’ logic and those of Cawthorn’s attorney,
who said an 1872 law that removed office-holding disqualifications from most ex-Confederates also exempt current members of Congress like Cawthorn today. “Why would Congress do this anyway?” asked U.S. Circuit Judge Jim Wynn, a nominee of thenPresident Barack Obama, during oral arguments. “Why would you rather take away a disability of an individual who’s going against the United States?” The amendment says no one can serve in Congress “who, having previously taken an oath, as a member of Congress ... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” The amendment does allow Congress to pass laws that can remove such restrictions. But any such law can’t for all time prevent prohibitions against future insurrectionists, said Press Millen, a Raleigh attorney representing voters who filed formal challenges of Cawthorn. “You cannot simply amend the Constitution through a vote in Congress,” Millen said. A federal judge in Georgia last month said she disagreed with Myers and ruled the 1872 Amnesty Act didn’t apply to Greene. James Bopp, Cawthorn’s lawyer, said his client “vigorous denies that he ever engaged in insurrection or rebellion against the United States, the country he loves. But this is not about the facts. This is about the law. This is about whether there are valid claims that are being made under Section 3 against him.” Bopp, who also represents Greene in her case, told the judges that the Constitution leaves the decision on whether someone is disqualified to serve in the U.S. House with the elected body itself, not the states. That means a candidate’s ultimate seating doesn’t get settled until when each two-year session begins in January, he said. In the meantime, Bopp suggested, elections will work out potential conflict. “In a democracy ... where we have the right to vote and we have the First Amendment, we leave a lot of things to the voters,” Bopp said. But Millen countered by saying the Constitution makes clear that insurrectionists can’t be members of Congress, just like teenagers or citizens of other countries. The tangled case began in January, when candidate challenges were initially brought against Cawthorn by voters in a district that he initially decided to run in this fall. But North Carolina’s congressional map for the 2022 elections was altered twice since then because of redistricting litigation that changed the district that Cawthorn decided to run in this fall. That led to a second challenge by voters in the 11th Congressional District. Myers refused to let voters from the new 11th District and the other district that Cawthorn had officially filed to run in earlier formally enter the lawsuit. Those denials also form part of the appeal argued Tuesday and also were heard by Circuit Judges Julius Richardson and Toby Heytens. Richardson was a Trump nominee, while Heytens was picked by President Joe Biden.
NEWS / 3
N O R T H C A R O L I N A L A W Y E R S W E E K LY I May 9, 2022
COA: Prison inmate may receive compensation for value of destroyed books ■ BY TERI SAYLOR, CORRESPONDENT terisaylor@gmail.com A prison inmate who received $100 in compensation for losing the use of 10 law books he alleged were negligently destroyed by a prison official may have a chance to receive full compensation for their actual value, the N.C. Court of Appeals has determined. Plaintiff Carl Brewton, who is incarcerated at the Tabor Correctional Institute in Tabor City, N.C. was using the books for legal research for his own defense in a criminal case. The corrections officer, believing Brewton was in violation of Section F.00503(b) of the facility rules which govern the volume of legal materials inmates may possess, destroyed his books. Brewton filed a pro se tort claim with the N.C. Industrial Commission, and after an evidentiary hearing, the deputy commissioner entered an order denying his claims, finding the officer had not acted negligently.
Brewton then filed an appeal to the full commission, which found instead that the officer had indeed acted negligently. The full commission awarded Brewton $100 for “the loss of use and enjoyment” of the books. However, the order did not grant Brewton any damages for the value of the books, and Brewton turned to the Court of Appeals. The appeal was heard on November 16, 2021. “Defendant’s negligence is undisputed,” wrote Judge Chris Dillon in the court’s opinion, filed on March 15. “The only issue before us is whether the full commission correctly calculated the plaintiff’s damages.” The court pointed to general statute § 143-291(a)(2018) that directs the Industrial Commission to “determine the amount of damages that the claimant is entitled to be paid, including medical and other expenses, and by appropriate order direct the payment of damages.” The court also cited case law in finding that where a plaintiff’s property is destroyed through negligence,
the plaintiff is entitled to damages equal to the value of that property and a Supreme Court opinion that “the amount of damages is a matter which the statute leaves to the discretion of the Industrial Commission.” (Brown v. Charlotte-Mecklenburg Bd. Of Educ., 269 N.C. 667, 671, 153 S.E. 2d 335, 339 - 1967). “In this appeal, there is no challenge by either party regarding the Commission’s award of $100 for Plaintiff’s loss of the use of his books,” Dillon wrote. “What is before us is whether the Commission erred by failing to consider whether Plaintiff was entitled to be compensated for the value of the books themselves, after finding that Plaintiff’s books were indeed destroyed through the negligence of Defendant.” Neither the Industrial Commission nor Brewton has determined the market value of the books, so the court remanded the matter back to the Commission to make that determination. The Court of Appeals, in its opin-
ion, concluded the Full Commission erred by not including any findings of fact or conclusions of law pertaining to the actual value of the destroyed books, and never exercised its discretion in making that determination of value. “We therefore remand this matter and direct that the Commission reconsider its award to Plaintiff and base any claim on the appropriate measure of damages, including the value of the books destroyed through the Defendant’s negligence,” Dillon wrote. Carl Brewton, Pro Se. Attorney General Joshua Stein, represented by Assistant Attorney General Elizabeth B. Jenkins for the defendantappellee. The 5-page opinion is In re: Brewton v. North Carolina Department of Public Safety (Lawyers Weekly No. 011-056-22). The full text of the opinion is available online at nclawyersweekly.com. Teri Saylor is a writer in Raleigh, N.C.
hova were appealing.” The court further held that the substance of the plaintiffs’ opening brief addressed sanctions as they applied to both Lokhova and to Biss, with two pages devoted entirely to Biss.
lishers and he never filed suit when Lokhova self-published her book. Niemeyer noted that, while Lokhova and Biss made several credible claims about the true purpose behind Halper’s letters, his intent in sending the letters is ultimately a question of fact that can’t be resolved on the “thin record” before the court. “Only after discovery and the development of a fuller record can it be determined whether Halper is able to show that the letters qualify for absolute privilege under Virginia law as (1) ‘made preliminary to a proposed proceeding,’ (2) ‘related to a proceeding contemplated in good faith and under serious consideration,’ and (3) ‘disclosed to interested persons,’” the judge wrote. “Because the district court’s conclusion that the complaint was frivolous depended on Halper’s proving these elements to show the applicability to the letters of the absolute privilege as an affirmative defense … the court erred in reaching that conclusion, as it should not have determined that the intent element of the privilege was satisfied on the basis of such a limited record.” Niemeyer added that, “At bottom, it is clear that the district court could not have concluded, based on the record before it, that Lokhova’s complaint ‘had no chance of success.’”
Sanctions vacated Defamation, tortious interference claims not frivolous ■ BY NICHOLAS A. HURSTON Where a claimant’s defamation suit was dismissed with a warning that further frivolous pleadings might justify sanctions, her subsequently filed claims based on new conduct were not frivolous and did not warrant sanctions. The 4th U.S. Circuit Court of Appeals reversed the Eastern District of Virginia’s dismissal of the subsequent complaint and vacated the sanctions imposed on the plaintiff and her attorney. “[W]hen the same cast of characters, accusing each other of making defamatory statements about some of the same historical events, came before the district court in this case, the parties’ litigation history appears to have played a significant role in the court’s reaction, causing the court to devalue the fact that [plaintiff’s] second complaint presented claims based on new, distinct facts,” Judge Paul V. Niemeyer wrote. The district court erred by finding that absolute privilege rendered the complaint frivolous with “no chance of success.” Niemeyer’s April 5 opinion, Lokhova v. Halper (VLW 022-2-084), was joined by Judges G. Steven Agee and Albert Diaz.
‘Contentious litigation history’
In May 2019, Russian-born author and academic Svetlana Lokhova sued Stefan A. Halper, a “veteran political operative,” for defamation in a 73page complaint that Niemeyer characterized as acrimonious, unprofessional and excessively long. Lokhova claimed Halper was the source of accusations that she was a Russian spy having an affair with Gen. Michael Flynn in furtherance of her mission, according to the opinion. Halper moved to dismiss the complaint as untimely. He also asserted that the complaint was filed in bad faith and moved for sanctions against Lokhova and her attorney, Steven Biss. The district court dismissed the complaint. Rather than imposing
sanctions, it warned Biss that filing any further inappropriate or frivolous pleadings might warrant sanctions. Ten months later, Biss filed another complaint for Lokhova, this time claiming that Halper and his attorney contacted publishers of Lokhova’s then-forthcoming book with the sole purpose of causing her book contract to be cancelled. Lokhova demanded $5 million for defamation and tortious interference. Biss attached to the complaint two letters Halper delivered to Lokhova’s publishers, which she alleged made numerous false statements about her. These letters accused the publishers of defaming him in their marketing materials for Lokhova’s book and requested a public retraction. According to Lokhova, the publishers were motivated by Halper to cancel her contract despite already having thousands of online preorders and a reasonable expectation to sell more than 500,000 copies. Halper immediately moved for sanctions against Lokhova and Biss. He acknowledged sending the letters, but claimed they were absolutely privileged. Thus, the complaint was frivolous. The Eastern District of Virginia agreed. It dismissed the complaint in May 2021, and ordered that Lakhova and Biss were jointly and severally liable for sanctions in the amount of $33,875. When Lokhova and Biss appealed, Halper claimed the appeal was frivolous and requested sanctions before the Fourth Circuit. Lokhova and Biss retorted that Halper’s sanctions request was itself frivolous and sanctionable.
Waiver
Halper argued that Biss failed to perfect his own appeal of the sanctions because he was not explicitly identified as an appellant on the notice of appeal. Alternatively, he claimed Biss waived his arguments by not making them in the opening brief. Niemeyer was unpersuaded, writing that while “Biss is not explicitly identified as an appellant […] the substance of each notice made it objectively clear that both he and Lok-
Defamation
Lokhova and Biss first argued on appeal that the litigation privilege asserted by Halper applied only to defamation, not to tortious interference. Niemeyer agreed, noting a 2021 decision from the Virginia Supreme Court — Givago Growth, LLC v. iTech AG, LLC — which upheld “preexisting principles” that absolute privilege doesn’t apply to non-defamation torts in Virginia, including tortious interference. Halper argued that the privilege did apply to Lokhova’s tortious interference claim because it had a “shared basis” with and was “inextricably tied” to her defamation claim. The court rejected that contention. “This argument … fails to recognize the distinct elements for the two torts under Virginia law, which make clear that pre-litigation demand letters, even if not defamatory, could constitute tortious interference,” the opinion pointed out.
Privilege
Lokhova and Biss next asserted that Halper failed to meet the requirements to qualify for the privilege under Mansfield v. Bernabei. They claimed Halper did not “genuinely contemplate the filing of a lawsuit,” adding that his intent was exposed because he never threatened legal action in his letters to the pub-
Current Status
On April 19, Halper petitioned the Fourth Circuit for a panel rehearing or rehearing en banc, which stayed the mandate of the court pending its ruling. Attorneys for the parties did not respond to a request for comment.
4 / COMMENTARY NEWS
N O R T H C A R O L I N A L A W Y E R S W E E K LY I M ay 9, 2022
Has the legal system failed us? Not so PFAS-t! ■ BY DAN SMITH This weekend I was mildly concerned to see a news article stating that the wrappers for the oh-so-delicious chicken sandwiches I enjoy likely contain PFAS (per- and polyfluoroalkyl substances). Even more recently, a proposed class action was filed in the Southern District of Illinois against the keeper of the golden arches, alleging that the PFAS content in its food and food wrappers has injured customers. (Clark v. McDonald’s Corporation, 3:22-cv-00628, filed March 28, 2022). At least some of the family of chemicals known as PFAS likely have health impacts on humans. With continuing advancements in analytical chemistry, PFAS can be detected in the parts per trillion and, for nearly ten years, have been the subject of much study—and, increasingly, lawsuits—throughout the country. The federal government appears to be proceeding deliberately towards greater regulation of PFAS using existing regulatory structures. But if PFAS has made it into my chicken sandwich, I have to ask myself, has the legal system failed us? Having pondered for the past few days and eaten one (quite delicious) sandwich in the interim, I
think the answer is no. Human civilizations have a long history of causing ourselves trouble with our own activities—and then growing, adjusting and improving. A classic example is the human waste problem and all the wonderful diseases we can give ourselves (cholera, typhoid, parasitic diseases, etc.) if our waste is not handled in a sanitary manner. After dozens of epidemics and outbreaks, we learned to separate ourselves from our waste and treat our sewage. I also think back to DDT, Rachel Carson and Silent Spring, where the chemical at issue (and its degradation products: the chemicals produced when DDT breaks down) interfered with calcium transport in the ovarian glands of birds leading to thinner eggshells and declining bird populations. During my wonderful liberal arts education, I took a history of public health class where I wrote a paper on James Whorton’s 1975 book, Before Silent Spring: Pesticides and Public Health in PreDDT America. Whorton addressed the use of lead and arsenic pesticides on various food crops, including apples. I still recall an apple salesperson being quoted sometime in the early 1900s as saying you would have to eat a whole bushel of apples to get sick. (Unfortunately, at that
time, there was no appreciation for the chronic impacts of lead and arsenic exposure.) Within the legal system, I am reminded of the layers of protection that have developed in our nation over nearly 250 years. Statutes like the Clean Water Act, Safe Drinking Water Act and Resource Conservation and Recovery Act are generally intended to be forward-looking, creating a regulatory system that is intended to prevent society from injuring itself. Moreover, assuming consensus can be built among legislators, new statutes could be passed. If the statutory scheme fails to protect us adequately, torts and other common law claims provide a backwardlooking approach, allowing injured parties to seek payment from the bad actor who caused them harm. Admittedly, the system is imperfect and has its troubles. But the law does grind on towards justice. In the meantime, I think I’ll have another sandwich. Dan Smith, a partner at Brooks Pierce, focuses his law practice on matters involving environmental, commercial, education, and state constitutional law. A former educator and environmental scientist, Dan represents businesses, boards of education, and individuals in state, federal, administrative, and appellate courts.
"Helping lawyers practice better, more efficiently, and more profitably." ■ PUBLISHER Liz Irwin lirwin@bridgetowermedia.com ■ EDITOR Jordan Yount jyount@molawyersmedia.com\ EDITORIAL Heath Hamacher, Reporter hhamacher@nclawyersweekly.com Scott Baughman, Digital Media Manager sbaughman@mecktimes.com ■ ADVERTISING Sheila Batie-Jones, Advertising Account Executive sbatie-jones@nclawyersweekly.com ■ ACCOUNTING & ADMINISTRATIVE Michael McArthur, Business Manager mmcarthur@bridgetowermedia.com ■ CIRCULATION Disa Ehrler, Audience Development Manager dehrler@bridgetowermedia.com Circulation: 1-877-615-9536 service@bridgetowermedia.com ■ PRODUCTION & OPERATIONS Bradley Redmond, Director of Production Ryan O’Shea, Production Supervisor John Reno, Production Specialist ©2022 BridgeTower Media. Material published in North Carolina Lawyers Weekly is compiled
Trial court properly disqualified attorney doubling as defendant
at substantial expense and is for the sole and
■ BY CORREY E. STEPHENSON BridgeTower Media Newswires
The material may not be republished, resold,
A trial court did not abuse its discretion in disqualifying an attorney from appearing on behalf of himself or his law firm, both named as defendants in a legal malpractice action, a unanimous panel of the North Carolina Court of Appeals has ruled. Jonathan A. Fine, an attorney with Marshall Grant, represented Rosenthal Furs, Inc. in a dispute related to the enforcement of a renewal option provision in a commercial lease. During the representation, the North Carolina State Bar suspended Fine’s law license and subsequently censured him for practicing law while his license was suspended. Neither Fine nor the firm informed Rosenthal about the license suspension. The company later filed suit against Fine and the firm, alleging legal malpractice, constructive fraud and negligent misrepresentation. Fine filed a notice of appearance in the case on behalf of himself and the law firm. Rosenthal responded with a motion to disqualify Fine as counsel for the defendants. The company argued that the state’s Rules of Professional Conduct – specifically Rule 1.9 and Rule 3.7 – applied to disqualify Fine because he was a material and necessary witness in the litigation. The trial court granted the motion to disqualify Fine and the defendants appealed. A panel of the Court of Appeals
affirmed in an opinion authored by Judge Toby Hampson. “Given the litany of concerns reflected in the trial court’s order, 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,” he wrote. “Thus, the trial court did not abuse its discretion in disqualifying Fine from appearing as an attorney for himself or Marshall Grant on the facts of this case.”
Proof or analysis of proof?
Beginning with the question of Fine’s representation of the law firm, the defendants argued that Rule 3.7 only disqualifies a lawyer as an advocate at trial if the lawyer is likely to be a necessary witness. Since the case wasn’t close to trial, it was premature of the trial court to rule Fine out when a disqualifying conflict had yet to arise, the defendants told the court. However, the defendants failed to acknowledge “a crucial portion” of a 2020 opinion from the North Carolina State Bar Ethics Committee, Hampson said. In 2020 Formal Ethics Opinion 3, the 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.”
In the case at hand, the trial court found that Fine — as well as Marshall Grant — would be deposed and be witnesses at trial, as Rosenthal required evidence about several issues: Fine’s wrongful conduct, his suspension from the practice of law during the representation of Rosenthal and the amounts of money invoiced and paid by Rosenthal to the defendants during Fine’s suspension. “Thus, if admitted at trial, the evidence obtained during these depositions 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,” Hampson explained. “Therefore, the trial court did not abuse its discretion in disqualifying Fine from representing Marshall Grant under Rule 3.7 of the Rules of Professional Conduct.”
exclusive use of purchasers and subscribers. recorded, or used in any manner, in whole or in part, without the publisher’s explicit consent. Any infringement will be subject to legal redress. Established 1988 919-829-9333 • 1-800-876-5297 Charlotte office: 130 North McDowell Street, Unit B, Charlotte, NC 28204 (704) 377-6221 • (704) 377-4258 fax: www.nclawyersweekly.com For subscription questions 1-877-615-9536 service@bridgetowermedia.com
North Carolina Lawyers Weekly [ISSN10411747] [USPS 002-904] is published biweekly every other Monday with General Statewide Circulation for $410.36 per year by North Carolina Lawyers Weekly, 130 North
‘The key witness’
Turning to the question of Fine’s pro se appearance, the defendants contended that his right to represent himself is codified in state law and disqualification could not be based on his dual role because a pro se litigant will also play a dual role as advocate and witness. While acknowledging that state law broadly permits litigants to appear pro se — regardless of whether the litigant is an attorney or a layperson — Hampson pointed out that a trial court retains the discretion “to determine advocate/witness issues” when raised in a motion to See Page 5 ►
McDowell Street, Unit B, Charlotte, NC 28204 Periodicals postage paid at Charlotte, North Carolina 28228-9998. POSTMASTER: Electronic Service Requested. Send address changes to: North Carolina Lawyers Weekly, Subscription Services, P.O. Box 1051, Williamsport, PA, 17703-9940 North Carolina Lawyers Weekly is a publication of BridgeTower Media, 222 South Ninth Street, Suite 900, Minneapolis, MN 55402.
NEWS / 5
N O R T H C A R O L I N A L A W Y E R S W E E K LY I May 9, 2022
Rule 3.7 alone as the basis for disqualifying Fine, he added. “In fact, the trial court’s findings reflect the trial court’s concern was not merely that Fine may likely be a necessary witness, but rather that Fine would like be the key witness with unique knowledge upon which both his and Marshall Grant’s liability may hinge,” Hampson wrote. “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 the case including Fine’s own acknowledgement: ‘he was angry about being sued by [Rosenthal] and therefore his filed motions may reflect his emotional feelings … .’” The trial court also expressed concern about the “interwoven relationships at the heart of this
C o nt inu e d f r o m 4 ►
disqualify, per a 2011 Formal Ethics Opinion. “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,” he wrote. North Carolina courts have yet to address the issue, but a Louisiana court held that the pro se lawyer may be subject to discipline or sanctions including disqualification for abusing the role of lawyer/litigant. This approach is consistent with North Carolina law, Hampson said, as courts in the state retain inherent disciplinary power to regulate attorneys that appear before them. The trial court did not rely upon
case,” including the attorneyclient relationship between Fine and Rosenthal, Fine’s relationship with Marshall Grant and Marshall Grant’s role in collecting substantial fees from Rosenthal for legal work while Fine was unlicensed. Undergirding all of these worries: “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 suspended at the time’; and charging or collecting ‘an illegal or excessive fee in violation of Rule 1.5(a).’ “Indeed, the allegations against Fine in this case include allegations of the same or similar wrong-
ful conduct in his representation of [Rosenthal],” Hampson concluded, affirming the trial court’s order. Judges John Arrowood and Jeffrey Carpenter joined the unanimous opinion. Winston-Salem attorney Randolph M. James, who represented Rosenthal, said he appreciated the clarification on the issue of a trial court’s powers to disqualify an attorney at the pre-trial stage of litigation. “The Court of Appeals was clear: the trial court has the discretion and authority to consider whether an attorney should be disqualified,” he said. Fine, of Durham, did not respond to a request for comment. The 17-page decision is Rosenthal Furs, Inc. v. Fine (Lawyers Weekly No. 011-080-22). The full text of the opinion is available online at nclawyersweekly.com.
JAD / COA: Extortion charge need not name alleged victim instrument for extortion must name the victim, but points to an overturned decision in State v. Oldroyd (2020) that set the rule for charging armed robbery. In Oldroyd, robbery victims were named only as “Huddle House employees,” which the appeals court found insufficient because there was no named victim. But the state’s Supreme Court determined that the general identification was plain, concise, and factual enough to place the defendant
C o nt inu e d f r o m 1 ►
District Court adjudicating Jeremy delinquent and sentencing him to 12 months of probation. Jeremy’s primary argument on appeal was that the court lacked subject matter jurisdiction where the petition failed to name the victim of the alleged extortion. The court noted that Jeremy cites no authority stating that a charging
on notice of the alleged misconduct against which he was expected to defend himself. The high court ruling, Griffin wrote, placed emphasis on modern, less strict pleading requirements set forth in the Criminal Procedure Act of 1975, signaling a shift away from the technical rules. “It is important that the indictment in Oldroyd did name the victims with some specificity,” Griffin wrote, adding that no precedent ex-
ists to dictate whether a charging instrument for extortion must name victims specifically or what that degree of specificity should be. The court compared armed robbery and extortion — similar offenses criminalizing the taking of property from another through threat of harm — in its analysis. Regarding armed robbery, the state’s Supreme Court has held that ownership of See Page 6 ►
More than 60 attorneys have been recognized by the National Academy of Distinguished Neutrals for
Excellence in the field of Alternative Dispute Resolution
James L. Conner II Raleigh (919) 313-4571
Sarah V. Corley Asheville (828) 232-2800
William A. Eagles Greensboro (336) 433-9980
Sherman Lee Criner Wilmington (910) 251-0004
Melinda Evans Chapel Hill (919) 593-5167
Lynn G. Gullick Greensboro (336) 686-4336
Kate Deiter-Maradei Raleigh (919) 400-4087
Paul T. Flick Raleigh (919) 809-7346
Jonathan Harkavy Greensboro (336) 370-4200
Dailey J. Derr Durham (919) 419-1265
William H. Freeman Winston-Salem (336) 722-8872
Scott C. Hart New Bern (252) 633-3131
Michael W. Drye Asheville (828) 298-1484
Marshall A. Gallop Jr. Rocky Mount (252) 937-2200
Patricia L. Holland Raleigh (984) 232-8014
Thomas C. Duncan Greensboro (336) 274-7243
Ellen R. Gelbin Winston-Salem (336) 945-0214
Joseph T. Howell Raleigh (919) 365-6000
Anne Duvoisin Blowing Rock (828) 295-7469
Henry W. Gorham Emerald Isle (919) 805-5003
Wayne P. Huckel Charlotte (704) 333-0073
For a FULL roster of ADR attorneys and to check AVAILABLE DATES online visit www.NCMediators.org/dateselector and select your case criteria The NC Academy is the local chapter of the National Academy of Distinguished Neutrals, a nationwide association of mediators and arbitrators who have substantial experience in the resolution of commercial and civil disputes. All members have been recognized for their accomplishments through the Academy’s peer nomination system and extensive attorney-client review process. Membership is by invitation only and is limited to individuals who devote a substantial percentage of professional efforts to ADR practice. To access our FREE National Directory, please visit www.NADN.org/directory and select your preferred state.
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 M ay 9, 2022
STRICKLAND / Former public defender can sue C o nt inu e d f r o m 1 ►
for her exclusively, and asked her to drink alcohol with him in work settings, looking to create a “quid pro quo” arrangement. She further claims that she was retaliated against when she reported the alleged abuse and that the office normalized “bullying, sexism, homophobia, racism, and mockery of disabilities,” promoting those responsible for the conduct and punishing those who complained. Strickland alleges that rather than taking proper action when she reported the harassment, the federal public defender required her to continue to work under and meet with the first assistant and that he reclassified her job and denied her a promotion. Strickland said that she tried to “self-manage” the situation before unsuccessfully attempting to solve the issues informally through the Administrative Office of the United States Courts. As part of the first
two steps of the 4th Circuit’s Employment Dispute Resolution Plan (EDR Plan), Strickland filed a request for counseling and a wrongful conduct report and a request for mediation. Ultimately, after “delays, procedural irregularities, and no resolution,” Strickland resigned in March 2019 and claims that she was constructively discharged. Strickland filed suit in 2020, alleging violations of her due process and equal protection rights, but the district court dismissed those claims, finding that claims against the defendants in their official capacity were precluded by sovereign immunity and that claims against defendants in their individual capacity failed to state any cognizable claims for relief.
Deliberate indifference impermissible
Briscoe noted that the EDR Plan was implemented by the 4th Circuit because federal judiciary employees have no remedies under the Civil
Service Reform Act and are not covered by Title VII of the Civil Rights Act, and that judiciary employees in management roles can be held liable for deliberate indifference to sexual harassment “committed by a federal judiciary employee or supervisor against another federal judiciary employee.” The court held that the Fifth Amendment’s equal protection clause guards against sexual harassment by other federal judiciary employees and “protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.” While the circuit’s EDR Plan does not afford employees a substantive right to continued employment, it does provide the substantive right to work under conditions free from discrimination and harassment and to be free from retaliation where employees file a claim under the plan.
Further, it creates a clear and specific set of procedures to follow when an employee claims that those rights have been violated, the court found. “Defendants could of course have chosen not to provide a right to combat the harassment of federal judiciary employees. But once they did so by adopting the EDR Plan, ‘the floor for the procedures due is set by the federal Constitution,’” Briscoe wrote, citing the 3rd Circuit decision in 1987’s Stephany v. Wagner. The court rejected Strickland’s argument that the internal employment dispute resolution process used by the 4th Circuit like other courts to handle misconduct complaints was unconstitutional but found that the refusal to disqualify the federal public defender from the investigation to be a plausible violation of her due process rights. The court also declined to vacate the district court’s judgment and to recuse District Judge Young, holding that Strickland has not shown a likelihood of actual bias.
STATE V. / ‘Aggressor’ charge was reversible error C o nt inu e d f r o m 1 ►
before the shooting, she noticed significant changes in his behavior that she attributes to methamphetamine usage. Court documents say that on June 12, 2017 — the day before the shooting — Hicks threatened to send sexually explicit photos to Adams’ wife and that she told Adams’ wife over the phone that they were having an affair and that Adams was doing drugs. Later that day, Hicks said, a man showed up at her residence yelling and “looking for” Adams, who had expressed concern about his supplier raising his prices and Adams owing people money. Around 6:30 a.m. on June 13, despite having been told by Hicks to not come to her home, an enraged Adams stormed into Hicks’ trailer and demanded to see her phone. Hicks agreed only when Adams picked up her firearm from a nightstand and pointed it at her. Adams threw the gun down after searching the phone, but began shoving and hitting Hicks, who testified that she was afraid that Adams would hurt her, her daughter, or her daughter’s friend, who had spent the night. During the altercation, Hicks fired two close-range shots into Adams’ back, killing him. On July 11, 2017, Hicks was indicted on one count
C o nt inu e d f r o m 5 ►
the property does not have to be laid in a particular person to prove the crime where the property is shown to be the “subject of robbery” and not the property of the accused. As such, a charging instrument for armed robbery need show only that the accused used a dangerous weapon to take personal property from “someone other than himself.” Extortion, the court notes, is not limited to personal property but can apply to anything of value, “acquittance, advantage, or immunity.” While an indictment for armed robbery must at least name a person who was in charge or in the presence of the property at the time of
of second-degree murder. Despite Hicks’ objection at trial, Randolph County Superior Court Judge Bradford Long instructed the jury on the aggressor doctrine. Hicks was subsequently convicted of second-degree murder. The appeals court reversed, however, agreeing with Hicks’ argument that the trial court committed reversible error through its jury instructions, finding a reasonable possibility that a different result might have been reached but for the error. Wood noted that the North Carolina Supreme Court has held that individuals are not required to retreat in their own home where they are threatened with assault, regardless of the character of the assault. Additionally, state law provides that the lawful occupant of a home is immune from civil and criminal liability for the use of force likely to cause death or serious bodily harm where they reasonably fear imminent death or seriously bodily harm to themselves or another. Further, one who unlawfully and by force enters a person’s home is presumed to be doing so with the intent to commit an unlawful act involving force or violence. Self-defense is not available, however, where the defendant is the aggressor in a situation. Here, the state argued that testimony from Adams’
wife denying that Adams was a violent man supports the inference that Hicks was the aggressor. But the Court of Appeals found that argument fatally flawed, noting that “the point in time where aggressor status may attach is temporally connected with the actual use of force.” Wood noted that Adams had threatened Hicks on several occasions, including half an hour before his death, and that he spent the two minutes he was inside Hicks’ home threatening her and initiating a physical altercation. The court also rejected prosecutors’ argument that Hicks was the aggressor because she threatened, on the night before the killing, to send explicit photos to Adams wife, finding that seven hours passed between that threat and the shooting. “The threats of sending sexual photographs to Caleb’s wife are insufficient to support a jury instruction on the aggressor doctrine, because these threats were not made at the time the self-defense occurred,” Wood wrote. “Moreover, we decline to hold that a threat to expose one’s extramarital affair constitutes conduct demonstrating an aggressive willfulness to engage in a physical altercation.” Hicks armed herself only after Adams had already held her at gunpoint and, after relinquishing the weapon, began pacing around the room with his fists balled, threaten-
ing to kill Hicks for ruining his life. In fact, the court found, Hicks attempted to leave the room before Adams assaulted her. “As defendant was attacked in her own home and feared for the safety of herself and others in her home, defendant acted in self-defense to repel Caleb’s assaults against her,” Wood wrote. Judges Lucy Inman and Hunter Murphy concurred in the result. Assistant Attorney General Joseph Hyde represented the state. Hicks was represented by Marilyn Ozer of Chapel Hill. Ozer declined to go into specifics about the case, as prosecutors still have the option of petitioning the state’s Supreme Court for review. But she wrote in an email to Lawyers Weekly that she sees the opinion as a significant one. “I believe the Court of Appeals decision is important for victims of domestic violence as the opinion finds a woman does not become the aggressor while the man who has broken into her home and assaulted her is still in her bedroom within reach of her and able to continue his assault,” Ozer wrote. The 19-page decision is State v. Hicks (Lawyers Weekly No. 011-09722). The full text of the opinion is available online at nclawyersweekly. com. Follow Heath Hamacher on Twitter @NCLWHamacher
the robbery (but not legal ownership of the property), the requirement cannot be practically applied to extortion cases in which properties are not necessarily owned, possessed, or in the charge or presence of an extortion victim. “Extortion does not share armed robbery’s focus on the ownership of the valuable property the defendant obtains or seeks to obtain,” Griffin wrote. “We hold that a charging instrument charging extortion need only apprise the charged party of the material elements of the offense of extortion: (1) that a wrongful demand was made with (2) the intent to demand something of value.” The appeals court also rejected Jeremy’s argument that “true
threat” crimes require the threat of unlawful physical violence, a notion that Griffin found would “defeat the purpose of the crime” of extortion, which covers “any” threat made with the intention to wrongfully obtain anything of value, acquittance, advantage, or immunity “in an unlawful and unjust manner.” Griffin noted, citing the state Supreme Court’s ruling in State v. Taylor, that neither that court nor the U.S. Supreme Court has explicitly defined the scope of the true-threats exception to the First Amendment and that no federal or state constitutional rule exists stating that threats are protected speech unless they threaten unlawful physical violence. “Assuming without deciding that
[the state’s extortion law] is an antithreat statute, we hold that First Amendment jurisprudence does not limit application of the statute to threats of unlawful physical violence,” Griffin wrote. “The state was under no burden to prove that Jeremy threatened unlawful physical violence.” Assistant Attorney General Melissa Walker represented the state. Assistant Appellate Defender Jillian Katz represented the juvenile. The 28-page decision is In re J.A.D. (Lawyers Weekly No. 011093-22). The full text of the opinion is available online at nclawyersweekly.com. Follow Heath Hamacher on Twitter @NCLWHamacher
No signs of aggression
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 May 9, 2022
Opinions Insurance Healthcare – ERISA – Abuse of Discretion – Inadequate Records – Extratextual Requirement At the first level of reviewing plaintiff’s claim for back surgery, the trustees of the defendant-healthcare plan sought an independent medical review but failed to provide the reviewing doctor with the relevant medical records. At the second level of review, the trustees both imposed a requirement not set out in the plan – conservative treatment prior to surgery – and ignored evidence that plaintiff had attempted conservative measures. At the third level of review, the trustees combined these mistakes to affirm the denial of coverage for plaintiff’s back surgery. The trustees abused the discretion afforded them by the plan. We affirm the district court’s award of plan benefits to plaintiff.
Background
Plaintiff suffered from back and neck pain for years. On the advice of neurosurgeon Dr. Henry Elsner, she performed postural exercises and occasionally used pain medication. When plaintiff’s pain worsened, an MRI led Dr. Elsner to conclude that surgery would help relieve her symptoms. Dr. Elsner performed the surgery, at a cost of about $90,000. The defendant-plan denied coverage, and plaintiff appealed. The plan sought an independent medical review (IMR) from Dr. Francesco Serafini. However, the plan failed to provide Dr. Serafini with the MRI report or Dr. Elsner’s office notes explaining his recommendation of surgery. Dr. Serafini concluded there was no basis in plaintiff’s medical records to justify surgery. Plaintiff’s claim was rejected. Plaintiff appealed again. This time, the plan sought an IMR from Dr. Brad Ward, and they supplied him with the relevant medical records. Dr. Ward concluded that surgery was not medically necessary, relying in part on a lack of documented abnormalities on a neurologic exam and in part on the fact that plaintiff had not taken “any conservative measures other than medication.” Plaintiff’s claim was again rejected. On appeal to the plan’s trustees, plaintiff’s appeal was rejected a third time. The trustees expressly relied on both IMRs.
Discussion
The plan vests the trustees with discretionary and final authority in making benefits determinations. We must decide whether the trustees abused this discretion in denying benefits. Even under abuse-of-discretion review, we will not uphold the trustees’ decision unless it was the result of a deliberate, principled reasoning process and unless it was supported by substantial evidence. Primarily, the trustees erred by
relying on Dr. Serafini’s IMR, given the plan’s failure to provide him with the relevant medical records. None of the virtues of an independent evaluation are present when the evaluator is denied the very evidence necessary to come to a reasoned judgment. The plan emphasizes Dr. Ward’s finding that plaintiff had not demonstrated conservative medical treatment prior to her surgery, except for medication. But this was inaccurate, since the record shows that plaintiff had tried postural exercises such as yoga without relief. Furthermore, the trustees erred to the extent that they imposed a requirement of conservative treatment as a precondition to finding that plaintiff’s surgery was medically necessary. While a lack of conservative treatment may be a useful factor as part of a holistic inquiry, that does not justify requiring such treatment as an absolute condition. Sometimes it is readily apparent that no amount of conservative treatment would alleviate a patient’s pain or render surgery unnecessary. And to impose a rigid requirement of conservative treatment would be effectively to add a new term to the plan, a term for which plaintiff did not bargain, and about which she lacked any notice. We agree with the district court that the trustees abused their discretion in denying plaintiff’s claim. Given the plan’s repeated failure to handle plaintiff’s claim in a sensitive and fair-minded manner, we also agree with the district court that the appropriate remedy is an award of benefits rather than remand. Affirmed. Garner v. Central States, Southeast & Southwest Areas Health & Welfare Fund Active Plan (Lawyers Weekly No. 001-06622, 11 pp.) (Harvie Wilkinson, J.) No. 21-1602. Appealed from USDC at Greensboro, N.C. (Catherine Eagles, J.) Francis Joseph Carey for appellant; Leila Louzri for appellee. 4th Cir.
Criminal Practice ‘Crime of Violence’ – Federal Murder – Divisible Statute The federal first-degree murder statute, 18 U.S.C. § 1111(a), includes felony murder, which requires the government to prove only recklessness. However, a review of § 1111(a)’s wording and punctuation shows that the statute is divisible. Since defendant was convicted of premeditated murder under § 1111(a), he was convicted of a “crime of violence” within the meaning of 18 U.S.C. § 924. We affirm the district court’s denial of defendant’s motion for relief under 28 U.S.C. § 2255.
Background
In Pisgah National Forest, defendant kidnapped the victim, duct-taped her to a tree, raped her, shocked her with a stun gun multiple times, and shot her in the head. After his state-
court convictions were vacated because of a Miranda violation, defendant pleaded guilty to second-degree murder and related offenses. In federal court, defendant was indicted for using and carrying a firearm during and in relation to a crime of violence in violation of § 924(c) and using and carrying a firearm during and in relation to a crime of violence resulting in death in violation of § 924(j). A jury voted to convict. The jury found that defendant had committed kidnapping, sexual abuse and murder.
Discussion
A “crime of violence” underlying a § 924 conviction must have as an element the use, attempted use, or threatened use of physical force against the person or property of another. Because conviction under § 924(c) requires proof of only one underlying “crime of violence,” we need only consider the first-degree murder statute. That statute, 18 U.S.C. § 1111(a), defines four types of first-degree murder as follows: “Murder is the unlawful killing of a human being with malice aforethought. Every murder [1] perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or [2] committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or [3] perpetrated as part of a pattern or practice of assault or torture against a child or children; or [4] perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.” If a statute is indivisible – as defendant argues § 1111(a) is – the most innocent conduct criminalized by the statute must categorically meet the definition of a “crime of violence.” Felony murder cannot qualify as a “crime of violence” because it requires only the mens rea necessary to attempt or complete the underlying felony (i.e., arson, escape, etc.). That mens rea is not more than recklessness and thus, does not satisfy Borden v. United States, 141 S. Ct. 1817 (2021), which held that a criminal offense that requires only a mens rea of recklessness cannot qualify as a “violent felony.” However, § 1111(a) is phrased alternatively. The second sentence contains four separate components, the first two of which are relevant here. Each component is separated by a semicolon followed by the word “or.” The first component of § 1111(a) sets out premeditated murder as a type of first-degree murder, while the second component sets out felony murder as a type of first-degree murder. Each of these components requires the Government to prove a unique element that the jury must find unanimously; the first component requires proof of premeditation, and the sec-
ond requires proof of the accomplishment (or attempted accomplishment) of a listed felony. Therefore, these two components list alternative versions of first-degree murder, which makes the statute divisible. Because the statute is divisible, we apply the modified categorical approach. The jury found that defendant committed both premeditated murder and felony murder. Undoubtedly, federal premeditated murder is categorically a “crime of violence.” Therefore, it constitutes a valid underlying crime sufficient to support defendant’s conviction of violating § 924(c) and (j). Affirmed. United States v. Jackson (Lawyers Weekly No. 001-067-22, 14 pp.) (Diana Gribbon Motz, J.) No. 20-9. Appealed from USDC at Asheville, N.C. (Martin Reidinger, C.J.) Andrew Reed Childers and Shawn Nolan for appellant; Anthony Joseph Enright and Dena King for appellee. 4th Cir.
Insurance Commercial – Unfair Trade Practices – Confusing Coverage Denial – Building ‘Collapse’ – Sudden Breezeway Drop During a party, a breezeway in the plaintiff-insured’s student housing building suddenly dropped by about a foot. After saying it had issued or would issue payment, the defendant-insurer sent plaintiff a coverage denial letter that recited multiple policy provisions, some of which were inapplicable and others of which had been deleted and superseded by amendments or endorsements. Moreover, the letter offered no reasonable explanation for denying coverage, something N.C.G.S. § 58-63-15(11) (n) requires. Defendant’s violation of § 58-63-15 constituted an unfair trade practice. We affirm the district court’s grant of summary judgment for plaintiff on its declaratory judgment and breach of contract claims and on one of its unfair trade practices claims. We also affirm the district court’s award of attorney’s fees to plaintiff, but we reverse the district court’s refusal to treble plaintiff’s damage award.
Breach of Contract
Both parties’ engineers found water damage which had deteriorated the wooden framework of the breezeway. The parties’ policy barred coverage for loss caused by decay, deterioration or defective construction. The policy also excluded loss caused by “continuous or repeated seepage or leakage of water . . . that occurs over a period of 14 days or more.” However, a “Collapse Endorsement” expressly covered “abrupt collapse,” which was defined as “an abrupt falling down or caving in of a ‘building’ or any part of a ‘building’ with the result that the ‘building’ or part of the ‘building’ cannot be occupied for its intended purpose.” The undisputed evidence shows the
8 / OPINION DIGESTS breezeway fell suddenly by at least a foot. With no definition of “abrupt collapse” in the policy that excludes these circumstances, we find that requirement satisfied. Defendant’s next argument – that plaintiff’s loss was caused by defective construction – mistakenly frames plaintiff’s loss as water damage caused by faulty construction, rather than the breezeway’s sudden collapse. Defendant challenges the district court’s finding that relocating students to alternative housing was covered under the policy’s “Extra Expenses” provision. Even though plaintiff’s contract with the university did not expressly require that plaintiff provide alternative housing, providing student housing was the only purpose of plaintiff’s contract with the university. The university withheld rent until plaintiff relocated the students. Accordingly, relocating the students was a necessary expense under the “Extra Expenses” provision.
Unfair Trade Practices
Conduct that violates § 58-6315(11) constitutes a violation of North Carolina’s Unfair and Deceptive Trade Practices Act (UDTPA) as a matter of law. Section 58-63-15(11) (n) requires insurers to “promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts . . . for denial of a claim.” Defendant’s confusing denial letter failed to satisfy § 58-63-15(11) (n). Shortly after notifying plaintiff that it would be investigating the claim, defendant said it had “issued, or [would] be issuing payment.” Yet a few weeks after that, defendant denied plaintiff’s claim in a letter that failed to reference its earlier agreement to pay. Moreover, nothing in the denial letter links the basis in the insurance policy for the denial to the facts. The letter says coverage was denied because plaintiff’s damage was “the result of long-term water intrusion and deteriorated wood framing.” But not one of the policy provisions that defendant listed in the denial letter used the phrase “water intrusion.” Nor did the letter explain which of the many enumerated provisions barred coverage. This is particularly troubling because some of the cited provisions were no longer even part of the policy. Others patently didn’t apply, such as those citing flood or steam boilers. Defendant even included the wrong provision governing collapse. In context, the denial letter had the capacity to mislead. We agree with the district court that defendant offered no reasonable explanation for denying coverage, which § 58-6315(11)(n) requires. Defendant’s deceptive letter was its sole communication denying coverage; therefore, the letter was defendant’s breach of contract. Defendant’s UDTPA violation was aggravating conduct accompanying its contract breach. Consequently, plaintiff was entitled to treble contract damages. Finally, we agree with the district court that defendant’s willful refusal to settle entitles plaintiff to an award of attorney’s fees. Affirmed in part; reversed in part, and remanded for a trebling of damages.
Dissent
(Rushing, J.) Defendant’s denial letter summarizes the factual findings by defendant’s investigators and then identifies and quotes what appears to be every potentially appli-
cable policy exclusion. The letter then states the bases for the denial of coverage in plain language, linking the facts to the quoted exclusions. It says: “We respectfully must deny coverage because the damage is reportedly the result of long-term water intrusion and deteriorated wood framing,” which was “the result of the failure to properly install a water management system on the walls and a properly integrated waterproof system for the walkway slab and framing configuration as well as improper venting of the dryers.” The letter further declines coverage because “the damage was not caused by any of the Specified Causes of Loss as defined under the policy.” Lastly, the letter explains that coverage is denied because the damage began “prior to the inception date of coverage,” and it immediately quotes the policy’s exclusion for “loss or damage commencing” outside the policy period. The letter’s explanation clearly faults defective construction and design of the water management system and dryer vents for long-term water seepage and decay, all of which are mentioned in the previously quoted policy exclusions. These are reasonable explanations for defendant’s denial of coverage, even though defendant’s reasons for the denial ultimately proved to be incorrect. Accordingly, I would reverse the district court’s UDTPA ruling. It follows that I would also find no basis for awarding attorney’s fees or treble damages. DENC LLC v. Philadelphia Indemnity Insurance Co. (Lawyers Weekly No. 001-068-22, 35 pp.) (Albert Diaz, J.) (Allison Jones Rushing, J., concurring in part & dissenting in part) No. 20-1640. Appealed from USDC at Greensboro, N.C. (Catherine Eagles, J.) David Brown and David Harris for appellant/cross-appellee; Gregg McDougal, John Branch, Andrew Brown and Lawrence Duke for appellee/cross-appellant. 4th Cir.
Corporate Cooperative – Dissolution Claim – Purpose Fulfillment – First Impression – ‘So Far as Appropriate’ The plaintiff-members of the defendant-cooperative seek dissolution of the cooperative on the basis that it can no longer fulfill its purpose of stabilizing tobacco prices. This is a valid reason for dissolution under the North Carolina Nonprofit Corporation Act (NCA) but not under the North Carolina Business Corporation Act (BCA). N.C.G.S. § 54-142 of the North Carolina Cooperative Marketing Act says the NCA applies to cooperatives which do not have capital stock, while the BCA applies to cooperatives which do have capital stock. After analyzing § 54-142, we conclude that, since defendant has capital stock, its alleged inability to fulfill its purpose is not a valid basis for dissolving the cooperative. We affirm the district court’s dismissal of plaintiffs’ dissolution claim. Aside from the “capital stock” language, § 54-142 also says the BCA applies only to the extent that it is “appropriate” and not “in conflict with or inconsistent with the express provisions of this Subchapter.” Plaintiffs have failed to identify any provisions in the BCA which conflicts with the express provisions of the Cooperative Marketing Act. The General Assembly did not de-
N O R T H C A R O L I N A L A W Y E R S W E E K LY I M ay 9, 2022
fine the phrase “so far as appropriate,” and neither we nor the parties have found any reported North Carolina decisions interpreting it. Plaintiffs point out that defendant is a nonprofit corporation, so they argue that it would be inappropriate to apply the dissolution provisions of the BCA. But the Cooperative Marketing Act requires all cooperative associations to be nonprofit. The North Carolina legislature made a conscious decision that, regardless of the cooperative’s nonprofit nature, the applicability of the BCA or the NCA hinges on the existence of capital stock. We refuse to write that choice out of the statute. The members fail to explain why applying the BCA’s dissolution provisions here would contradict the statute’s “so far as appropriate” language. Therefore, we maintain that since defendant is organized “with capital stock,” the BCA governs defendant’s dissolution. And as noted above, the failure of a corporation to carry out its purposes—the only ground advanced by plaintiffs—is not a ground for dissolution under that act. Accordingly, we affirm the district court’s dismissal of plaintiffs’ claim for judicial dissolution. Affirmed. Speaks v. U.S. Tobacco Cooperative Inc. (Lawyers Weekly No. 001069-22, 11 pp.) (Marvin Quattlebaum, J.) No. 20-2098. Appealed from USDC at Raleigh, N.C. (James Dever, J.) Gary Shipman and William Wright for appellants; Lee Michael Whitman, Benjamin Thompson and Paul Puryear for appellee. 4th Cir.
Civil Practice Amended Complaint – Relation Back – Time for Service – Civil Rights – Prisons & Jails Plaintiff, proceeding pro se and in forma pauperis on his claim that he was denied necessary medical treatment while incarcerated, was allowed to amend his otherwise timely filed complaint to substitute prison nurses as defendants in place of the North Carolina Department of Public Safety, which is immune from suit. Because defendant Wargas was served within the time the district court set for service, plaintiff’s amended complaint relates back to the filing of his original complaint, and plaintiff’s claim against Wargas is not timebarred. We reverse the district court’s dismissal of plaintiff’s complaint. At issue is the notice requirement of Fed. R. Civ. P. 15(c) for cases, like this one, in which an amended complaint “changes the party or the naming of the party against whom a claim is asserted.” The limitation period for purposes of analyzing whether a newly added defendant received notice and should have had knowledge of the action as required for relation back under Rule 15(c) is not the statute of limitations for the underlying claim, but instead “the Federal Rule of Civil Procedure 4(m) service period.” Relation back is allowed so long as the added defendant had notice within the 90 days – or any “good cause” extension – allowed under Rule 4(m). For in forma pauperis plaintiffs, the governing Rule 4(m) service period is tolled while a district court screens a complaint for frivolity under 28 U.S.C. § 1915 and begins to run only after the court authorizes service.
Wargas was served within 90 days of the district court’s authorization of service. At that time, the proceedings had not progressed to the point that Wargas could suffer any prejudice in her ability to defend against plaintiff’s claim. And Wargas also knew or should have known that the action would have been brought against her, but for a mistake concerning the proper party’s identity. Service with a complaint naming her as a defendant meant that she knew, within the Rule 4(m) period, that plaintiff intended to sue her, even though he mistakenly named in his original complaint the state agency for which she worked. The Marshals Service was unable to serve defendant Gore within Rule 4(m)’s 90-day limit. Plaintiff promptly sought an extension under Rule 4(m). The district court never ruled on that request because it believed – incorrectly – that plaintiff had lost his chance to take advantage of Rule 15(c)’s relation-back rule when the statute of limitations on his 42 U.S.C. § 1983 claim expired. Because the district court erred in that respect, we remand for consideration of plaintiff’s extension request. We note that plaintiff has no control over the delay in service of process by the Marshals Service. Even though plaintiff failed to sign his complaint before filing it, since he promptly corrected this omission when it was called to his attention, plaintiff’s complaint remains operative. Vacated and remanded. McGraw v. Gore (Lawyers Weekly No. 001-070-22, 18 pp.) (Pamela Harris, J.) No. 20-7539. Appealed from USDC at Raleigh, N.C. (Richard Myers, C.J.) David William McDonald for appellant; Alex Ryan Williams and Joshua Stein for appellees. 4th Cir.
Bankruptcy Breach of Fiduciary Duty – In pari delicto – Dodgy Accounting After using dodgy accounting to show a one-year increase in accounts receivable from $150,000 to $9.9 million, a collection agency eventually declared bankruptcy. Even if the collection agency’s bankruptcy trustee could stand in the shoes of a hypothetical creditor when the trustee pursued this action against an investment advisor who tried to solicit investors for the collection agency, that hypothetical creditor would itself be standing in the shoes of the collection agency and be subject to any defenses that could be asserted against the collection agency. Consequently, given the dodgy accounting practices of the collection agency, the doctrine of in pari delicto bars the trustee’s claims against the investment advisor. We affirm the district court’s decision upholding the bankruptcy court’s ruling in favor of the investment advisor and his firm.
Facts
A bad-check collection agency changed its accounting practices to begin reflecting anticipated receivables, including fees it would be entitled to if it managed to collect a check, with a certain portion discounted for estimated non-collections. This accounting practice was inconsistent with the generally accepted accounting principles endorsed by the Securities and Exchange Commission. Although defendant Meyers had
OPINION DIGESTS / 9
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 May 9, 2022
some accounting experience in a different field nearly a decade earlier, he trusted the representations of the collection agency’s CEO – and its outside auditors – that its accounting practices were acceptable. Meyers and his firm were unable to secure investors for the collection agency on their first attempt. Meyers and his firm again tried to find investors for the collection agency and were again unsuccessful. Meyers and his firm received no payments from the collection agency. The collection agency eventually declared bankruptcy, and the trustee brought this action agent Meyers and his firm, alleging fraud and breach of fiduciary duty under the law of South Carolina (where the collection agency’s operations center was located) and aiding and abetting breach of fiduciary duty under the law of Nevada (where the collection agency was incorporated). The bankruptcy court entered judgment in favor of Meyers and his firm. The district court affirmed, and the trustee appeals.
Discussion
The affirmative defense of in pari delicto bars recovery by a plaintiff who bears equal or greater fault in the alleged tortious conduct than the defendant. The trustee argues that he represents not just the collection agency/ tortfeasor, but also the collection agency’s creditors. Under the trustee’s theory, he steps into a hypothetical creditor’s shoes in his suit against Meyers and his firm. However, the hypothetical creditor would be stepping into the collection agency-debtor’s shoes, so the underlying shoes would still be those of a wrongdoer. The hypothetical creditor would be subject to the same defenses as the debtor, including in pari delicto. The trustee also argues that the actions of the debtor’s officers cannot be imputed to the debtor (and therefore to the trustee) because the relevant officers were acting adversely to the debtor’s interests. We are unpersuaded. The bankruptcy court identified all sorts of benefits the debtor derived from the accounting technique at issue, including growing the business’s base, raising capital, paying other debt, and extending the company’s life. Finally, the trustee contends that in pari delicto is categorically inapplicable in cases involving fiduciary duties. The trustee asserts that Nevada and South Carolina would follow the Delaware Court of Chancery, which has so held. However, the Supreme Court of Nevada squarely held that in pari delicto “applies to corporations and shareholder derivative suits” in an aiding and abetting breach of fiduciary duty case. Glenbrook Capital Ltd. P’ship v. Dodds, 252 P.3d 681 (Nev. 2011). South Carolina’s only appellate decision implicating this issue held that in pari delicto barred a breach of fiduciary duty claim in a case whose facts resemble those found here – a corporation’s receiver sued a bank that had enabled the corporation’s fraud but did not mastermind or benefit from it. In that case, the South Carolina court held that in pari delicto barred the claims. Myatt v. RHBT Fin. Corp., 635 S.E.2d 545 (S.C. Ct. App. 2006). Defendants are not seeking to avoid liability by pointing to their own wrongful conduct and asserting it should be attributed to the debtor.
Instead, they are arguing that the wrongful conduct of the debtor’s own officers and directors exceeds any of theirs and thus bars recovery. We see no indication that South Carolina would prohibit application of in pari delicto under such circumstances. Affirmed. Anderson v. Morgan Keegan & Co. (In re Infinity Business Group Inc.) (Lawyers Weekly No. 001-071-22, 19 pp.) (Toby Heytens, J.) No. 21-1536. Appealed from USDC at Columbia, S.C. (Michelle Childs, J.) Robert Humphrey, Mitchell Willoughby and Elizabeth Zeck for appellant; Valerie Sanders, Robert Byrd, Smith Podris and Olga Greenberg for appellee. 4th Cir.
Criminal Practice Collateral Attack – Immigration – Untimely Petition – Inquiry Notice In 2016 proceedings, not only did petitioner’s attorney tell him that his 2010 conviction for a methamphetamine distribution conspiracy was an aggravated felony, but the attorney also successfully argued to the district court that petitioner should be sentenced to time served because he would face deportation upon his release. Moreover, the district court revoked petitioner’s citizenship. As a result, petitioner’s October 2018 petition under 28 U.S.C. § 2255 – collaterally attacking his 2010 conviction – was not filed within § 2255’s one-year limitation period. We affirm the district court’s dismissal of petitioner’s collateral attack upon his 2010 conviction.
Facts
Petitioner, a native of Mexico, entered the United States in 1999 as the child of a lawful permanent resident. From February 12, 2009, to April 29, 2009, he engaged in a conspiracy to distribute methamphetamine. During that period, petitioner initiated naturalization proceedings. On naturalization forms, he affirmed that he had never knowingly committed a crime for which he had not been arrested. On April 29, 2009, petitioner was arrested. That same year, petitioner became a naturalized U.S. citizen. In 2010, petitioner pleaded guilty to conspiring to possess, with the intent to distribute, both 50 or more grams of methamphetamine and 500 or more grams of a mixture or substance containing methamphetamine. Petitioner contends his counsel told him he would not be deported because he was a citizen. In 2016, petitioner was indicted for making false statements under oath in support of his application for naturalization. Petitioner has admitted that his attorney told him in 2016 that his 2010 conviction was for an aggravated felony. Furthermore, that attorney stressed to the district court that petitioner was likely to face deportation once released from custody, convincing the judge to sentence petitioner to time served. Moreover, the district court revoked petitioner’s citizenship.
Discussion
A § 2255 petition based on facts that arise after a conviction becomes final must be filed within one year of “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” § 2255(f)
(4). If circumstances arise that place a petitioner on inquiry notice that he has an interest in challenging the prior conviction, then § 2255(f)(4)’s due diligence requirement is triggered. The petitioner’s investigation needs to uncover only the facts supporting the claim(s) raised in the petition – not their legal significance. Any noncitizen convicted of an aggravated felony is automatically subject to removal from the United States and disqualified from seeking several types of discretionary relief from removal. In 2016, petitioner was placed on inquiry notice that his 2010 conviction was an aggravated felony. First, petitioner has admitted that his attorney told him in 2016 that his 2010 conviction was an aggravated felony. Second, during the 2016 proceedings, his attorney stressed that petitioner was likely to face deportation once released from custody, and after sentencing, the district court revoked petitioner’s citizenship in his presence. A person in petitioner’s position exercising due diligence could have discovered in short order that the reason his deportation was so likely was that his 2010 conviction qualified as an aggravated felony. Under either set of events, petitioner’s October 2018 petition came well after § 2255(f)(4)’s one-year limitations period expired. The district court correctly dismissed it as untimely. Affirmed. United States v. Nunez-Garcia (Lawyers Weekly No. 001-072-22, 17 pp.) (Steven Agee, J.) No. 20-6710. Appealed from USDC at Harrisonburg, Va. (Michael Urbanski, C.J.) Erin Margaret Trodden and Juval Scott for appellant; Samuel Cagle Juhan, Daniel Bubar and Jean Hudson for appellee. 4th Cir.
Constitutional Standing – Local Legislation – Schools & School Boards – Municipal In response to legislation allowing several towns in Mecklenburg County to open their own charter schools (HB 514), the Charlotte-Mecklenburg County School System scaled back its efforts to promote diversity and to reduce the number of schools with high concentrations of poor children. Nevertheless, since no town has applied for approval to operate a municipal charter school, plaintiffs have only alleged an indirect injury arising from the enactment of HB 514 – not the direct injury required to establish standing to challenge the constitutionality of the act. We vacate the trial court’s order denying defendants’ motion to dismiss. North Carolina State Conference of the NAACP v. State (Lawyers Weekly No. 012-148-22, 14 pp.) (Jeffery Carpenter, J.) Appealed from Wake County Superior Court (Vinston Rozier, J.) Olga Vysotskaya de Brito for the state; Elizabeth Haddix, Genevieve Bonadies Torres and Luke Largess for plaintiffs. 2022-NCCOA-236
Domestic Relations Parent & Child – Support – Guidelines Worksheets – Insufficient Past Practice The trial court did not have be-
fore it evidence of a full calendar year of the number of nights the parties’ child spent with each parent. The trial court abused its discretion by projecting the amount of time the child would spend with each parent under its new custody order and then calculating the defendant-father’s child support obligation pursuant to N.C. Child Support Guidelines Worksheet A. We vacate the child support order and remand for further proceedings. The guidelines speak to the time a child lives with a parent “during the year” and “per year.” Thus, determining which guidelines worksheet to use requires an analysis into how many nights per year a child has spent with each parent. Here, the trial court did not have a full calendar year evidencing the child’s overnight visits with defendant from which to determine which worksheet to use. Thus, the trial court’s decision to use Worksheet A was impermissibly premised upon a speculation of how many overnight visits defendant might or might not use in the future. Because precedent prohibits such speculation, the trial court abused its discretion in using Worksheet A when calculating child support. Smith v. Grant (Lawyers Weekly No. 012-149-22, 9 pp.) (April Wood, J.) Appealed from Cabarrus County District Court (Christy Wilhelm, J.) Ashley Crowder for plaintiff; Jennifer Fleet for defendant. 2022-NCCOA-240
Domestic Relations Equitable Distribution – Divorce Judgment – ‘Reservation of Rights’ In response to her husband’s complaint for an absolute divorce, the plaintiff-wife filed an answer and reservation of rights. However, plaintiff did not file her complaint for post-separation support, alimony and equitable distribution until after the absolute divorce judgment was entered. The divorce judgment destroyed plaintiff statutory right to equitable distribution. We affirm the trial court’s dismissal of plaintiff’s complaint. In January 2019, during the divorce proceedings, the defendanthusband’s counsel asked plaintiff’s counsel if he planned to file formal claims for post-separation support, alimony, and equitable distribution. The proposed divorce judgment was emailed to both attorneys on 13 February 2019. Neither party contested the decree, and the judgment of absolute divorce was entered 15 February 2019. Plaintiff filed purported claims for post-separation support, alimony, and equitable distribution on 3 April 2019. The trial court found no grounds for equitable estoppel to exist based upon these facts. The district court was divested of jurisdiction to hear or enter an order for alimony or equitable distribution after entry of the judgment of divorce. The trial court did not err in granting defendant’s motion to dismiss plaintiff’s claims. Affirmed. Smith v. Smith (Lawyers Weekly No. 012-150-22, 7 pp.) (John Tyson, J.) Appealed from Durham County District Court (David Hall, J.) Hayes Hofler for plaintiff; Barri Payne for defendant. 2022-NCCOA-241
10 / OPINION DIGESTS Criminal Practice Assault on a Female – Defendant’s Age – Flight – Sentencing – Separate Assaults One element of the crime of assault on a female is that the defendant is at least 18 years of age. Where (1) the victim’s testimony indicated that she believed defendant was old enough to be served alcohol, (2) defendant was able to throw the victim around her apartment and physically subdue her, and (3) the jury had the opportunity to observe defendant in the courtroom, there was sufficient evidence to allow the jury to determine defendant was at least 18 years of age. We find no error in defendant’s convictions for assault by strangulation, assault on a female and being a habitual felon. It is true that a jury may not determine the age of a criminal defendant beyond a reasonable doubt merely by observing him in the courtroom without having the benefit of other evidence, whether circumstantial or direct. Here however, there was circumstantial evidence that defendant was at least 18 years of age when he assaulted the female victim. The victim testified that, at a social gathering at her apartment, she offered “coffee, tea or Coke,” but that she did not have alcohol, which supports the inference that the victim determined her guests, including defendant, were old enough to be served alcohol. Furthermore, the victim testified that defendant was able to throw her around her apartment and physically subdue her. This circumstantial evidence, together with the jury’s observation of defendant in the courtroom, was sufficient to allow the jury to determine that defendant was “at least 18 years of age” as required by G.S. § 14-33. The evidence at trial supported the trial court’s jury instruction on flight. After being in the victim’s apartment for approximately two hours, defendant abruptly assaulted the victim. When the victim attempted to scream for help, defendant quickly left her apartment. Within moments of defendant’s departure, the victim’s neighbor yelled to inform her that authorities were on the way. This constitutes sufficient evidence that defendant fled after assaulting the victim. Defendant also argues he should not have been sentenced for both assault convictions. The state may charge a defendant with multiple counts of assault only when there is
substantial evidence that a distinct interruption occurred between assaults. The indictments charging defendant with assault by strangulation and assault on a female were not based on the same conduct. Additionally, the victim’s testimony established that the assaults took place in different rooms in her apartment, with lapses of time and changes in the momentum of the attack. Defendant began by throwing the victim across her bed and strangling her. After a period of time, defendant stopped strangling the victim, allowing her to stand up, and the victim asked defendant why he was attacking her. Defendant then threw her into a closet, pulled her into a hallway, and threw her into a piece of furniture. Defendant proceeded to drag the victim into the kitchen and began strangling her again. These interruptions and changes in method and momentum of assault were sufficient to delineate between the end and beginning of each assault. No error. State v. Clark (Lawyers Weekly No. 012-151-22, 11 pp.) (John Arrowood, J.) Appealed from Carteret County Superior Court (Joshua Willey, J.) Melody Hairston for the state; Michael Spivey for defendant. 2022-NCCOA-242
Criminal Practice Murder – Drug Deal Gone Bad – Prosecution Witness – Pending Charges – Neighboring County At defendants’ Mecklenburg County murder trial, the state put on a witness who had drug trafficking charges pending in Gaston County. Where defendants failed to provide supporting documentation of any discussion between the two district attorneys’ offices to show that the witness’s testimony was biased, the trial court did not err in barring defendants from cross-examining the witness about the Gaston County charges. We find no error in defendant’s convictions of first-degree murder, first-degree kidnapping and possession of a firearm by a felon arising from a drug transaction which turned violent, resulting in a death. According to State v. Bowman, 372 N.C. 439, 831 S.E.2d 316 (2019), “where a witness faces pending charges in a separate jurisdiction than the one he testifies in, a defendant must provide supporting documentation of a discussion between the two district attorneys’ offices to demonstrate that
PUBLIC NOTICE FOR APPOINTMENT OF A U.S. MAGISTRATE JUDGE IN CHARLOTTE, NC The United States District Court for the Western District of North Carolina is seeking qualified applicants for the position of a full-time United States Magistrate Judge for the United States District Court Western District of North Carolina at Charlotte, North Carolina. This position is located in Charlotte, North Carolina. The current annual salary for this position is $205,528. The term of office is eight years. A full public notice for the magistrate judge position is posted on the office of the clerk of the district court website at www.ncwd.uscourts.gov. Interested persons may contact the clerk of the district court for additional information and application forms. The application form is also available on the court’s website. Applications must be submitted by 5:00 PM on Wednesday, June 1, 2022. ALL APPLICATIONS ARE TO BE SUBMITTED IN HARD COPY FORMAT AND MAILED TO: Clerk of Court, US District Court 401 West Trade Street Charlotte, NC 28202 MARK ENVELOPE CONFIDENTIAL The Western District of North Carolina is an Equal Opportunity Employer and encourages diverse candidates to apply.
N O R T H C A R O L I N A L A W Y E R S W E E K LY I M ay 9, 2022
the witness’s testimony is biased.” Here, witness Jamal Robinson had pending drug trafficking charges in Gaston County. He was never charged for his participation in the events in Mecklenburg County under an immunity agreement, which the jury did hear about. And there was no evidence of communication between the Mecklenburg and Gaston County District Attorneys’ Offices. The trial court found in an evidentiary hearing that “there was no evidence before the Court” of a “showing of bias or undue influence by the State” primarily due to a lack of communication shown between the two District Attorneys’ Offices. Accordingly, the trial court correctly followed Bowman in reaching its decision. Assuming arguendo that the trial court did err in this regard, said error was harmless beyond a reasonable doubt. Jamal was never presented as a disinterested witness to the jury. He was a prosecution witness who was the only survivor of the drug deal gone bad that occurred on 30 December 2015. The jury also heard that Jamal was a drug dealer and knew that he was subject to an immunity agreement. Defendants’ contentions that Jamal could have hoped for a benefit do not amount to actual communication between the prosecutors of the two counties regarding Jamal’s charges. The trial court did not err in denying defendants the opportunity to cross-examine Jamal about his pending criminal charges in Gaston County. Even though there was evidence that defendant Evans engaged in witness intimidation, leading to extra security measures at trial, the trial court did not abuse its discretion by denying defendant Springs-Owens’ motion to sever defendants’ trials. The additional security measures were identical to those at the entrance of the courthouse (a metal detector and wand). All members of the public were required to pass through the same security measures at the entrance to the courthouse and again at the entrance to the courtroom. The trial court noted that the case involved defendants with first-degree murder allegations and did not rely solely on the evidence of witness intimidation to order additional security measures. The trial court also delivered multiple limiting instructions to the jury, addressing any potential prejudice defendant Springs-Owens might have faced. The trial court did not abuse its discretion in denying the motion to sever.
Concurrence
(Murphy, J.) There is an argument that the scope of the evidentiary requirement set out in Bowman was dicta; however, when our Supreme Court says an evidentiary requirement must be met, we must assume the court meant what it said. Therefore, I concur in the portion of the majority’s holding that defendants have not complied with Bowman’s evidentiary requirement and, accordingly, did not have a Sixth Amendment right to cross-examine the witness with respect to his pending Gaston County charges. However, I disagree with the majority’s harmless-error ruling. In the event the trial court’s failure to allow cross examination regarding the pending charges in Gaston County was error, such error was not harmless beyond a reasonable doubt. State v. Evans (Lawyers Weekly No. 012-152-22, 15 pp.) (Chris Dillon, J.) (Hunter Murphy, J., concurring in part & concurring in result only in part) Appealed from Mecklenburg County Superior Court (Gregory Horne, J.) Zachary Dunn for the state; Warren Hynson and Kellie Mannette for defendants. 2022-NCCOA-243
Criminal Practice Ineffective Assistance Claim – Counsel’s Admissions – Insufficient Record At defendant’s trial for felony fleeing to elude arrest, defense counsel notified the trial court that he planned to make admissions to the jury during closing arguments. The trial court told defendant, “I understand from your attorney that he will make an admission as to one or more elements of the charged offense as part of an approved and agreed upon strategy during his closing remarks to the jury.” And defendant said, “I approve.” This colloquy was insufficient to allow us to determine from the cold record whether defense counsel exceeded the scope of defendant’s permission when he admitted all the elements of misdemeanor fleeing to elude arrest to the jury. We dismiss defendant’s claim of ineffective assistance of counsel without prejudice to his right to file a motion for appropriate relief. We have no indication from the record what element(s) defendant consented to admitting, and thus cannot determine whether he consented to a concession of guilt to all elements of the lesser-included offense of misdemeanor fleeing to elude arrest with
EMPLOYMENT LAW ASSOCIATE Gentry Locke has an amazing opportunity for a motivated associate to join our thriving employment and labor law practice group in Roanoke, Lynchburg or Richmond. The successful candidate is expected to possess a strong work ethic, exceptional analytical, research and oral/written communication skills, and a passion for this area of the law. The associate should also have the ability to think creatively, the confidence and experience to interact with clients, and the ability to work independently or as part of a team. If not currently a member of the Virginia Bar, the selected candidate must become a member promptly. If you are interested in a flexible work environment, Gentry Locke is the place for you. We offer alternative working arrangements, competitive compensation, generous benefits, and professional development opportunities. Interested candidates should submit a cover letter, resume, writing sample and transcript to humanresources@gentrylocke.com. Gentry Locke is a drug-free workplace. For more information about the firm, visit www.gentrylocke.com.
Gentry Locke is an equal opportunity employer and is committed to diversity, equity and inclusion.
OPINION DIGESTS / 11
N O R T H C A R O L I N A L A W Y E R S W E E K LY I May 9, 2022
a motor vehicle, some subset thereof, or any element(s) necessary to elevate it to a felony. Because we cannot discern from the cold record whether defense counsel made admissions to the jury beyond the scope of his client’s consent, we deny defendant’s petition for writ of certiorari and dismiss the appeal without prejudice to defendant filing an MAR with the trial court. State v. Green (Lawyers Weekly No. 012-153-22, 8 pp.) (Lucy Inman, J.) Appealed from New Hanover County Superior Court (Frank Jones, J.) Mary Maloney for the state; Gilda Rodriguez for defendant. 2022-NCCOA-244
Criminal Practice Habeas Corpus – Application Deficiencies – Prisons & Jails – COVID Spread Defendant, a prisoner who has asthma and 28 percent lung capacity, petitioned for a writ of habeas corpus directing his release or transfer to another correctional institution where the spread of Covid-19 was better controlled. However, defendant’s habeas petition failed to do the following: (1) provide the name of the officer or person by whom he is imprisoned or restrained, (2) attach the order or process by which he was detained, (3) state that the legality of his imprisonment has not been previously adjudicated and (4) swear under oath that the allegations in his petition are true. Defendant’s failure to adhere to the procedural requirements of G.S. § 17-7 requires the denial of his habeas
petition. We affirm the trial court’s denial of defendant’s petition. State v. Griffin (Lawyers Weekly No. 012-154-22, 6 pp.) (Allegra Collins, J.) Appealed from Wake County Superior Court (Paul Ridgeway, J.) Zachary Dunn for the state; Aaron Thomas Johnson for defendant. 2022-NCCOA-245
Criminal Practice Murder – Co-Defendant’s Confession – Redacted – DA’s Former Client At three men’s trial for murder, defendant Norris’s confession was admitted, despite the fact that it referred to three other participants: a prosecution witness – by name – and two others whose names were replaced with pronouns. The trial court adequately sanitized Norris’s statement by replacing all specific references to defendants Hawkins and Ray with pronouns in a manner that did not permit the jury directly to infer that the pronouns referred to Hawkins and Ray. We find no error in defendants’ convictions for first-degree murder. A statement may be admitted without violating Bruton v. U.S., 391 U.S. 123 (1968), if the redacted statement, when combined with other evidence in the case, permits the jury to infer that the redacted individual is the defendant. The focus is on whether the redacted statement, standing alone, directly invites the jury to infer or speculate from context that the neutral pronoun references the defen-
dant. Accordingly, any inferential incrimination of Hawkins and Ray because the jury could infer, based on other evidence in the case, that those unnamed individuals were Hawkins and Ray is not a violation of Bruton. Thus, the trial court’s determination that Norris’s statement was adequately redacted to comply with Bruton was not error. Ten years before the trial in this case, while the Transylvania County District Attorney was still in private practice, he represented defendant Hawkins with respect to several property crimes. Where Hawkins presented no evidence that confidential information was acquired by the DA during the representation, the trial court did not abuse its discretion in denying Hawkins’ motion to disqualify the Transylvania County DA’s office. The trial court was well within its discretion to merely instruct the elected DA not to personally participate in the case. No error. State v. Hawkins (Lawyers Weekly No. 012-155-22, 17 pp.) (Richard Dietz, J.) Appealed from Transylvania County Superior Court (Gary Gavenus, J.) Michael Henry for the state; Anne Bleyman, Sean Vitrano and Drew Nelson for defendants. 2022-NCCOA-246
Criminal Practice MAR – Pro se Letters – Procedural Bar After pleading guilty and while he was incarcerated, defendant
sent three letters to the court, complaining about his trial counsel, claiming he was suffering from mental illness at the time of trial, and contending that his sentences were supposed to have run concurrently rather than consecutively. The court construed each letter as a motion for appropriate relief. In 2017, the trial court denied the first MAR, and defendant did not appeal; in 2018, the trial court denied the second MAR, and defendant did not appeal; in 2019, the trial court denied the third MAR, defendant did not appeal, but he petitioned for a writ of certiorari. Although defendant’s third MAR was more specific, it covered the same ground as his two previous MARs. As the trial court correctly ruled, defendant’s 2019 MAR is procedurally barred. We affirm the trial court’s denial of defendant’s 2019 MAR. State v. Hendricks (Lawyers Weekly No. 012-156-22, 13 pp.) (Valerie Zachary, J.) Appealed from Currituck County Superior Court (Jerry Tillett, J.) Narcisa Woods for the state; Jillian Katz for defendant. 2022-NCCOA-247
Criminal Practice Alford Plea – Anders Brief – Non-Sentencing Issues Defendant’s appellate counsel’s Anders brief raises only non-sentencing issues which defendant has no right to appeal since he entered an Alford plea. Our own review of the record reveals no meritorious is-
Board of Law Examiners of The State of North Carolina RESOLUTION OF APPRECIATION TO THE MEMBERS OF THE BAR CANDIDATE COMMITTEES WHEREAS, The Board of Law Examiners of the State of North Carolina is required by statute to make such investigations as may be deemed necessary to satisfy it that applicants for admission to the North Carolina Bar possess the qualifications of character and fitness requisite for an attorney at law; and, WHEREAS, the Bar Candidate Committee has assisted the Board by interviewing those applicants to take the February 2022 North Carolina Bar Examination, and, WHEREAS, the attorneys and laymen who served on the Bar candidate Committee did so freely and with great contribution of their time and efforts to the Board and Bar. NOW THEREFORE,BE IT RESOLVED by the Board of Law Examiners of the State of North Carolina: 1. That the Board of Law Examiners of the State of North Carolina does hereby unanimously adopt a formal Resolution of Gratitude and Appreciation to all those persons who so freely gave of their time and efforts to serve on the Bar Candidate Committees and in recognition of their services to the Board of Law Examiners, the North Carolina Bar and the State of North Carolina. 2. That each member of the Bar Candidate Committee be notified of this action taken by the Board and that this Resolution be included with the Minutes of the Board. Adopted by the Board of Law Examiners on the 22nd of March 2022. D. Clark Smith Jr., Chair
FEBRUARY 2022 BAR CANDIDATE COMMITTEES Resolution List EAST DISTRICT Reed N. Fountain -Chair Kellie C. Gonzalez Nan E. Hannah Lisa LeFante John R. Szymankiewicz Sydney C. Plummer Samuel W. Tripp, Ill Anna H. Ayscue Nancy L. Grace Brian E. Clemmons Alexander M. Bowling Andrew M. Benton David J. Fussell C. Steven Mason Jackson Wyatt Moore, Jr. David R. Ortiz Patrick D. Wilson Jeffrey R. Whitley S. Blake Leger
Meryl M. Murtagh Brian N. McCracken Lorna A. Knick Trevor P. Presler Raquel A. Gonzalez Padron Hannah A Combs Christie A. Hartinger K. Christopher Poe, Jr. David A. Burns Allie Coggins R. Maria Hawkins Mario M. Meeks Jonathan A. Greene Kevin J. Stanfield Victoria E. Jimenez Andrew J. Gibbons Grace S. Pennerat Stephanie L. Gumm Brett A. Carpenter Amy L. Clay Nia Doaks Stephanie E. Goodbar Rachel P. Nicholas Riley W. M. Smith Savannah J. Story Joanne Wu
Emily K. Mather Cerretta G. Amos Alexander K. Auriti Benjamin T. Aydlett William T. Bowers Zachary S. Buckheit Bryan L. Cantley Anna C. Conaway Tucker A. Idol M. Claire Flowers Avery R. Miller Carri L. Preble M. Callan Skinner Jenny B. Sneed Elizabeth A. Thomsen Brett White Golzar Yazdanshenas Deonte L. Thomas Darren K. Chester Theodore 0. Dardess Megan N. Ellis Carrah B. Franke James M. Freeman David W. Snipes Lauren M. G. Toole Mary Wilson
Dora Kripapuri William P. Colbert Vince R. Eisinger, Jr. Georgia H. Malik RaShawnda T. Murphy Jake Stewart Tanis K. Whittington Ariella M. Zulman Todd A. Jones Felicia M. Haigh Matthew P. Blake Keith A. Boyette Lindsey E. Powell Peyton D. Mansure Alicia W. Lewis Samuel G. Thompson, Jr. Mel Black Michael J. Crook Jacob L. Bumm Christy Joyce Jacquelyn Adcock David Saacks Rachel Matthews David A. Coleman Patricia Flood M. Ashton Slagle
Alec Glenn Matthew K. Lively Melanie Shekita J. Shaun Taylor David Egan
WEST DISTRICT Maya M. Engle - Chair Deborah L. Dilman Laura H. S. Budd Faith R. Fox Ross R. Fulton Richard F. Kronk P. Barrett Morris Sheila G. Passenant Thomas E. Powers, Ill Darwin F. Rice Tory I. Summey Anne M. Tompkins Caleb Brown Shawn A. Copeland Landon S. Eustache As of: 4/2022
12 / OPINION DIGESTS sues entitling defendant to relief. We find no error in defendant’s conviction of assault by strangulation. State v. Horne (Lawyers Weekly No. 012-157-22, 3 pp.) (Jefferson Griffin, J.) Appealed from Lenoir County Superior Court (Imelda Pate, J.) Matthew Bream for the state; Richard Croutharmel for defendant. 2022-NCCOA-248
Real Property
N O R T H C A R O L I N A L A W Y E R S W E E K LY I M ay 9, 2022
ties to present evidence, the trial court acted within the Rule 12(h) (2) exceptions by converting defendant’s Rule 12(b)(56) motion into a motion for summary judgment. Osborne v. Redwood Mountain, LLC (Lawyers Weekly No. 012-130-22, 10 pp.) (John Tyson, J.) Appealed from Wilkes County Superior Court (Richard Gottlieb, J.) Timothy Joines and Carmen James for plaintiffs; Bryan Tyson for defendant. 2022-NCCOA-239
Civil Practice
Easements – Gate Installed – Declaratory Judgment – Summary Judgment Conversion
Appeals – Signed Order – Unfiled
Pursuant to a 2003 judgment, plaintiffs have an easement across defendant’s land. Even though defendant put a gate across plaintiffs’ easement, since there was no dispute about the validity of the easement, plaintiffs were not entitled to a declaratory judgment as to the easement’s validity. We affirm summary judgment for defendant. Defendant did not waive its right to file a motion under N.C. R. Civ. P. 12(b)(6) by first filing a motion to address venue under Rule 12(b)(3). Where (1) defendant had filed a motion to dismiss when plaintiffs filed their motion for summary judgment, which was supported by a verified complaint and case law; (2) plaintiffs argued there was no genuine issue as to any material fact; and (3) both plaintiffs and defendant had adequate opportuni-
On plaintiff’s appeal of the trial court’s purported granting of three defendants’ motion to dismiss, the record includes an order that was signed by the trial court but not file stamped by the clerk of court. The statement of organization of the trial court, required under N.C. R. App. P. 9(a)(1)b, does not indicate a date that the order was filed with the clerk of court or that the order was filed at all. A judgment is not entered until it is, inter alia, filed with the clerk of court. Without entry of an order by the trial court, we do not have subject matter jurisdiction to hear this appeal. Appeal dismissed. Brown v. Wortham Williams & Son, Inc. (Lawyers Weekly No. 012131-22, 3 pp.) (Lucy Inman, J.) Appealed from Anson County Superior Court (Mark Klass, J.) Michael Maurer and Naomi Ellis for plaintiff; Andrew Pinto and Deborah Bowers for defendants. 2022-NCCOA-220
Civil Practice Rule 60 Motion – Prior Declarations – Real Property – Mortgages In this lawsuit related to a foreclosure action, the pro se plaintiff has failed to show that declarations filed by bank employees in a federal lawsuit constituted “newly discovered evidence.” While these 2013 declarations were in existence with the trial court entered its 2018 order granting the bank’s motion to dismiss, plaintiff has failed to show that these declarations could not have been found with due diligence in time to move for a new trial under N.C. R. Civ. P. 59(b). We affirm the trial court’s denial of plaintiff’s N.C. R. Civ. P. 60 motion for relief. Plaintiff claims that the bank failed to provide its memorandum in support of its motion to dismiss to plaintiff or his then-counsel prior to the hearing. However, not only does the bank’s certificate of service indicate that its memorandum was timely sent to plaintiff’s counsel, but plaintiff’s memorandum in opposition also addressed the contents of the bank’s memorandum. Carpenter v. Bank of America Corp. (Lawyers Weekly No. 012-13222, 7 pp.) (Jefferson Griffin, J.) Appealed from Wake County Superior Court (Keith Gregory, J.) Raymond Carpenter, pro se; Danielle Harper for defendant. 2022-NCCOA-221
Landlord/Tenant Summary Ejectment – Notice – Rule 60 Motion – No Excusable Neglect
INSPIRE THE PROFESSION. I N N O VAT E T H E P R A C T I C E . I M PA C T T H E W O R L D.
At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.
Three consecutive years of high bar passage rate for first-time takers:
95% (2018)
92% (2019)
92%
(July-Oct. 2020)
While the defendant-tenant’s attorney was negotiating a settlement with the plaintiff-landlord’s in-house counsel, the landlord’s outside counsel instituted summary ejectment proceedings. Even though notice of the summary ejectment was not served on defense counsel, notice was served on the tenant’s registered agent, and the tenant concedes that it was aware of the eviction action yet failed to appear at trial. While defense counsel’s representation suggests that plaintiff’s attorneys could have comported themselves with greater professionalism by coordinating their efforts better, it does not absolve the tenant from failing to notify its own counsel of the eviction action or from failing to appear at trial. Relief for excusable neglect is only available for the excusable neglect of the litigant, not that of the attorney. The tenant’s failure to appear at trial does not constitute excusable neglect. We affirm the trial court’s denial of defendant’s N.C. R . Civ. P. 60 motion. Carroll at Bellemeade, LLC v. Kabuto, Inc. (Lawyers Weekly No. 012-133-22, 8 pp.) (Darren Jackson, J.) Appealed from Guilford County District Court (Kimberly Fletcher, J.) Gavin Reardon for plaintiff; Scott Meyers for defendant. 2022-NCCOA-222
Domestic Relations Parent & Child – Custody & Visitation – Interlocutory Appeal
� LawCareer@liberty.edu � (434) 592-6068 � Liberty.edu/Law /LibertyUniversityLaw
The defendant-father lost his visitation rights after he assaulted the plaintiff-mother in the presence of their children. In the order on appeal, the trial court declined to reach
a permanent conclusion about the father’s request for a resumption of visitation, deferring any such decision pending the recommendation of a court-appointed therapist. The plaintiff-mother has not shown that an exception applies to this interlocutory order that would make it immediately reviewable. Appeal dismissed. Newton v. Newton (Lawyers Weekly No. 012-134-22, 11 pp.) (Hunter Murphy, J.) Appealed from Sampson County District Court (William Sutton, J.) Gregory Griffin for plaintiff; no brief filed for defendant. 2022-NCCOA-237
Domestic Relations Equitable Distribution – Appeals & Remand – Parties’ Income, Property & Liabilities On a prior appeal, this court vacated the trial court’s 2018 equitable distribution order on the grounds that (1) the trial court’s findings ignored undisputed evidence of two post-separation distributions from Foxx Appraisals, Inc., to the plaintiff-wife and (2) the trial court applied an incorrect legal standard to the classification of awards from the defendant-husband’s workers’ compensation and personal injury lawsuits. Although the trial court was not required to hold additional proceedings on remand, since the most recent evidence before the trial court on remand was from the hearing before the entry of the 2018 order, the trial court could not address the “income, property, and liabilities” of the parties “at the time the division of property is to become effective.” Thus, the findings of fact and evidence in the record do not justify a modification from the 2018 order’s percentage division of marital assets because the evidence in the record for the trial court to consider between the orders remained the same and nothing in the 2021 order justified a reweighing of the percent distribution of marital assets based on the same material evidence. Therefore, the trial court did not make sufficient findings of fact to justify its conclusion that the modification of the percentage of distribution of marital assets between the 2018 order and the 2021 order was proper. The trial court’s amended equitable distribution order is vacated and remanded. On remand, if either party requests the opportunity to present additional evidence for consideration prior to entry of the new order, the trial court shall allow the parties to present additional evidence limited to any relevant changes in circumstances which may affect an unequal distribution under G.S. § 50-20 since the last evidentiary hearing. Foxx v. Foxx (Lawyers Weekly No. 012-135-22, 9 pp.) (Fred Gore, J.) Appealed from Catawba County District Court (Sherri Elliott, J.) Alan LeCroy for plaintiff; Wesley Starnes for defendant. 2022-NCCOA-223
Partnership Dissolution – Interlocutory Appeal – Winding Up The trial court’s order dismissed plaintiffs’ unfair trade practices claim, but it left plaintiffs’ alternative cause of action for constructive fraud to be decided. In addition, the order judicially dissolving the parties’ partnership said the trial court was
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 May 9, 2022
to retain jurisdiction over the matter “for entry of further Orders necessary to finish the wind up and distribution of assets of the Partnership.” Because the order did not dispose of the case and left further action to settle and determine the entire controversy, it is an interlocutory order. The trial court did not certify its order for immediate appeal, and the defendant-appellant did not show that the order is immediately appealable. Consequently, we dismiss the appeal. O’Neal v. Burley (Lawyers Weekly No. 012-136-22, 8 pp.) (Jeffery Carpenter, J.) Appealed from Hyde County Superior Court (Wayland Sermons, J.) Chad Hunter Stoop for defendant; Casey Varnell for plaintiffs. 2022-NCCOA-238
Civil Practice Interlocutory Appeals – Partial Summary Judgment – Undecided Claims – Virginia Contractor Plaintiffs’ complaint against the defendant-contractor alleged five causes of action: declaratory judgment, breach of contract, quantum meruit, fraud, and intentional misrepresentation. Upon plaintiffs’ motion, the trial court granted summary judgment on plaintiffs’ declaratory judgment and quantum meruit causes of action, denied summary judgment on plaintiffs’ breach of contract claim, and neither granted nor denied summary judgment on plaintiffs’ fraud and intentional misrepresentation claims. Accordingly, the order on appeal is interlocutory.
Because the defendant appellant makes no argument that the order deprived him of a substantial right that would be lost, prejudiced, or less than adequately protected absent immediate review, we dismiss the appeal. Hill v. Grant (Lawyers Weekly No. 012-137-22, 6 pp.) (Allegra Collins, J.) Appealed from Bertie County Superior Court (Cy Grant, J.) Brice Bratcher and Jeremy Denton Adams for plaintiffs; Phillip Hornthal for defendant. 2022-NCCOA-225
Domestic Relations Parent & Child – TPR – Willful Abandonment – Prison Even if, as the respondent-father argues, “the most obvious explanation for [his] conduct was not a purposeful and deliberate intent to abandon” “Caleb,” but “most likely the result of his debilitating substance abuse disorder,” this would not preclude a finding of abandonment during the determinative period, i.e., the six months before the petitioner-mother’s filing of the petition to terminate respondent’s parental rights. Respondent alleges that his heroin use ended when his prison sentence began and that he has been sober since. Therefore, respondent was admittedly sober throughout the determinative period, and we are not persuaded that his drug addiction precluded him from manifesting an intent to abandon Caleb during the determinative period. We affirm the trial court’s termination of respondent’s parental rights. Respondent was incarcerated for
OPINION DIGESTS / 13 the six months that preceded the filing of the petition. Although the trial court did not specifically find that respondent had the ability to contact petitioner or his child while incarcerated, the trial court found that “while in prison, the Respondent had infrequent contact with the Petitioner[,]” and “Respondent only called Petitioner once while he was incarcerated.” These findings necessarily show, at a minimum, that respondent had the ability to call petitioner, Caleb’s primary caretaker, while incarcerated. It is true that, prior to respondent’s incarceration, petitioner would remain present during his sporadic visits with Caleb due to respondent’s heroin addiction and her concern for Caleb’s safety. Moreover, it appears that, in one instance, petitioner did not allow respondent to visit with Caleb on Father’s Day for an apparently arbitrary reason. It is difficult to imagine a termination of parental rights case where one parent petitions to terminate the other parent’s parental rights without some evidence of friction between the parties. However, not all friction creates a material factual dispute. In any event, respondent effectively admitted at trial that his addiction and immaturity were major factors in the sporadic visitation with his child over the course of the child’s life, not simply his tenuous relationship with petitioner. Affirmed. In re C.J.O. (Lawyers Weekly No. 012-138-22, 20 pp.) (Darren Jackson, J.) Appealed from Vance County District Court (Katherine Burnette, J.) Jeffrey William Gillette for respon-
dent; Jillian Moore for petitioner. 2022-NCCOA-226
Domestic Relations Parent & Child – Permanency Planning & Guardianship Orders – UCCJEA – New York Custody Order – Visitation The petition alleged that “Lonnie” “had been taken into foster care” in New York and that he had been returned to his mother’s custody shortly before she returned to Charlotte. This was sufficient to place the trial court on notice that the State of New York likely made an initial determination and entered a court order concerning Lonnie’s custody prior to the current action. Although the allegations of mistreatment in this case gave the trial court temporary emergency jurisdiction, the trial court did not purport to exercise temporary emergency jurisdiction in either its nonsecure custody order or its adjudication and disposition order, nor did the trial court communicate with the New York court to determine whether the New York court expressly relinquished jurisdiction. We vacate all orders concerning Lonnie entered after the 18 June 2018 non-secure custody order and remand for further proceedings. We also remand the permanency planning order for correction (i.e., inclusion) of the visitation aspect of the order. In re K.A.B. (Lawyers Weekly No. 012-139-22, 16 pp.) (Fred Gore, J.) Appealed from Mecklenburg County District Court (Aretha Blake, J.)
14 / OPINION DIGESTS Richard Croutharmel for respondent; Kathleen Arundell Jackson for petitioner; Stacie Knight for guardian ad litem. 2022-NCCOA-228
Domestic Relations Parent & Child – Guardianship – Constitutional – GAL In this child neglect case, the second permanency planning review hearing included testimonial evidence, documentary evidence, and argument regarding guardianship. The respondent-Mother was on notice that guardianship to a third party was recommended. Mother’s attorney had the opportunity to object on constitutional grounds or to present evidence or argument regarding her constitutionally protected status as a parent but did not do so. Mother has therefore waived appellate review of the trial court’s finding that she “[has] acted inconsistently with [her] constitutionally protected parental status…” We affirm the trial court’s order granting guardianship of “Stan” to his foster parents. The trial court did not abuse its discretion when it did not conduct an additional inquiry into whether a guardian ad litem should be appointed for Mother. While the trial court’s findings of fact note that Mother “has a diagnosis of Intellectual Developmental Disorder,” and her psychological evaluation recommended an evaluation of the necessity for a “legal guardian,” the discretionary nature of G.S. § 7B-602(c) and similarity of this matter to In re
Z.V.A., 373 N.C. 207, 835 S.E.2d 425 (2019), support a conclusion that the trial court did not abuse its discretion when it did not conduct an additional inquiry into Mother’s competency or her need for a guardian ad litem. In re K.W. (Lawyers Weekly No. 012-140-22, 18 pp.) (Hunter Murphy, J.) Appealed from Lenoir County District Court (Beth Heath, J.) Robert Griffin for petitioner; Lisa Anne Wagner for respondent; Greg Crumpler for guardian ad litem. 2022-NCCOA-229
Domestic Relations Parent & Child – Neglect Adjudication – Insufficient Findings – Recitation of Allegations In its order adjudicating “Sharon” and “Denise” neglected, the trial court recited multiple allegations from the juvenile petition, failed to make ultimate findings regarding pertinent facts and made findings unsupported by clear and convincing evidence. As examples, (1) the trial court found, as alleged in the petition, that the respondent-mother was “believed to have used drugs” during a supervised visit with her children; however, the trial court did not find that respondent had in fact used drugs and made no other findings concerning drug abuse by respondent or any consequent harm to the juveniles and (2) in a finding that was not taken from the petition, the trial court found, based on clear and convincing evidence, that respondent told petitioner that she had COVID, but there was no evidence showing the level of con-
N O R T H C A R O L I N A L A W Y E R S W E E K LY I M ay 9, 2022
tact respondent had with the children during the relevant period, so the record does not support the trial court’s finding that respondent exposed the children to COVID. We vacate the adjudication of neglect and remand for further proceedings. In re S.M. (Lawyers Weekly No. 012-141-22, 12 pp.) (Allegra Collins, J.) Appealed from Onslow County District Court (Sarah Seaton, J.) Richard Penley for petitioner; Garron Michael for respondent; Valerie Bateman for guardian ad litem. 2022-NCCOA-230
Domestic Relations Social Media Gag Order – Show Cause Motion – Civil & Criminal Contempt The trial court’s “civil” contempt order did not provide any means for respondent to purge himself of contempt, and its terms—jail time and a fine—resemble those of a criminal contempt order. When a trial court’s contempt order does not contain the necessary findings or purge conditions, the appropriate remedy is to vacate the contempt order. Vacated. In this juvenile proceeding, the trial court entered a gag order prohibiting the parties from discussing the case on social media. The child’s guardians filed a motion for an order to show cause and a motion for contempt, alleging that respondent had violated the gag order. Although the guardians’ motion was one for civil contempt, and al-
though the trial court’s order indicates that it was for civil contempt, the order fined respondent and required him to spend five days in jail. The order did not satisfy the requirement of a civil contempt order that the contemnor have the means to obtain his release immediately upon complying with the court’s order. In re W.A. (Lawyers Weekly No. 012-142-22, 5 pp.) (Richard Dietz, J.) Appealed from Cumberland County District Court (Cheri Siler-Mack, J.) Patrick Kuchyt for petitioner; Matthew Wunsche for guardian ad litem; Samuel Gray for guardians; Benjamin Kull for respondent. 2022-NCCOA-232
Domestic Relations Parent & Child – TPR – Willful Abandonment – Pregnant Wife & Girlfriend Faced with a girlfriend and an estranged wife who were both pregnant at the same time, the respondentFather communicated with his wife (Mother) about their separation and property settlement prior to their son “Stephen’s” birth, made one inquiry as to whether Stephen had been born, and then had no further contact with Mother or Stephen until after Mother filed a petition to terminate his parental rights. The trial court could find that Father had willfully abandoned Stephen. We affirm the termination of Father’s parental rights. After the filing of the petition in this matter, Father filed a custody action and—when Mother failed to
The insider’s guide to selling a law practice, transferring ownership, and designing a great Life After Law, written by two of the top authorities in succession planning.
“
Practical. Readable. Motivating. “Designing a Succession Plan” is an invaluable resource and planning guide. Solo and small firm partners will be especially interested in the sections on valuing and selling a law firm. All lawyers will appreciate the practical, expert advice outlining the options that await lawyers in this next phase. — Joan H. Feldman, Editor/Publisher, Attorney at Work
Learn more and see additional resources at
WWW.DESIGNINGASUCCESSIONPLAN.COM
HELPING LEGAL PROFESSIONALS EVOLVE AND THRIVE
WWW.LAWYERSMUTUALCONSULTING.COM
1.800.662.8843
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 May 9, 2022
appear for the hearing—was granted temporary custody of Stephen. Mother’s motion to set aside the temporary custody order was pending at the time of the hearing on Mother’s termination of parental rights (TPR) petition. Although there was evidence that Father did not have sufficient funds to hire an attorney, this was not evidence that he did not have even minimal funds to provide support for Stephen. Moreover, the record shows that, during the six months before Mother filed her petition, Father was employed, earning $2,900 per month; purchased a house; and received approximately $15,000 in proceeds from the sale of the marital residence. The record contains clear, cogent and convincing evidence to support the finding that Father’s failure to provide or offer to provide even minimal financial support for Stephen evinces a willful intent to abandon the child. Father does not challenge the trial court’s findings that, during the determinative period, Father did not ask Mother about Stephen; Father did not attempt to see Stephen; Father did not provide, nor offer to provide, financial support for Stephen; Father did not attempt to counterclaim for custody or visitation of Stephen in response to Mother’s complaint for divorce; and Father has never seen or interacted with Stephen. These unchallenged findings of fact clearly show that Father’s actions are wholly inconsistent with a desire to maintain custody of Stephen. The evidentiary findings support the ultimate finding that Father’s actions during the determinative period “indicate a willful determination to abandon” Stephen. Father argues that he did not visit Stephen because he believed that he was not permitted to visit under a term of the parties’ separation agreement that prevented him from visiting Mother without permission. Although the separation agreement did not allow Father to visit Mother unannounced, the order did not prohibit Father from contacting Stephen or requesting visits with him. Further, even if he believed that he was not allowed to visit Stephen, Father never attempted to challenge this provision. In the dispositional portion of its order, the trial court mentioned the intention of Mother’s fiancé to adopt Stephen. Father argues that Stephen was already in a permanent and stable family situation with Mother, making adoption unnecessary to create stability. However, even disregarding the portions of the findings addressing Stephen’s potential adoption, the trial court’s findings demon-
strate that it considered the relevant factors under G.S. § 7B-1110(a) and made a reasoned decision based on those findings. Affirmed. In re S.P.B. (Lawyers Weekly No. 012-143-22, 19 pp.) (Allegra Collins, J.) Appealed from Rowan County District Court (Charlie Brown, J.) Rebecca Wofford and Huntington Wofford for petitioner; Sean Vitrano for respondent. 2022-NCCOA-231
Trusts & Estates Superseding Will – Statute of Limitations – Caveators’ Possession More than three years after decedent’s daughters (propounders) probated his will, caveators sought to reopen the estate to probate a holographic will with a later date than the will that propounders had probated. Although caveators contend that propounders never found the holographic will because they failed to inventory decedent’s wallet, the wallet was in caveators’ possession. Caveators failed to show extrinsic fraud which would have tolled the statute of limitations. We affirm the trial court’s grant of propounders’ motion for judgment on the pleadings. Caveators gained possession of decedent’s wallet shortly before his death and maintained possession of the wallet for the duration of probate. This wallet, which allegedly contained the holographic will when caveators gained possession, remained in caveators’ possession for the entire period while the statute of limitation was running. Although caveators assert they did not inventory the wallet because they were not asked to, they had years of opportunity to look inside and find the holographic will. Alternatively, they could have turned possession of the wallet over to propounders to ensure the wallet was inventoried and included in the original probate. Caveators made no allegations that they were prevented from discovering the holographic will. Instead, caveators waited until after the limitation period expired and now claim that propounders have prevented caveators from presenting their case to the court. Simply put, caveators have failed to present sufficient evidence of extrinsic fraud. The discovery of the holographic will was entirely within caveators’ control, and propounders’ alleged failure to inventory the wallet and discover the will does not amount
to extrinsic fraud. Caveators contend the trial court was required to convert propounders’ motion for judgment on the pleadings into one for summary judgment because the court considered a memorandum written by decedent. However, the trial court’s order indicates that the memorandum was not considered. In any event, decedent’s memorandum does not amount to matters outside the pleadings with respect to caveators’ petition. Although the memorandum provides apparent insight into decedent’s opinions regarding his family, the memorandum contains no reference to the wallet where the holographic will was found, nor any allegation that propounders would seek to prevent caveators from finding or probating the holographic will. Therefore, the memorandum does not relate to caveators’ claim of extrinsic fraud, and the trial court was not required to convert the motion for judgment on the pleadings into a motion for summary judgment. Affirmed. In re Will of Gard (Lawyers Weekly No. 012-144-22, 13 pp.) (John Arrowood, J.) Appealed from Dare County Superior Court (Alma Hinton, J.) Casey Varnell and Katherine Harrell for caveators; Matthew Spencer, Alan Powell and Andrew Irby for propounders. 2022-NCCOA-227
Domestic Relations Divorce – Insufficient Separation Period – Service of Process In his 21 October 2013 divorce complaint, the plaintiff-husband falsely alleged that the parties had been separated since 15 June 2012; however, the parties did not physically separate until 16 April 2018. The parties did not meet the requirement for a one-year separation under G.S. § 50-6, so the trial court lacked subject matter jurisdiction to enter its 28 January 2014 divorce judgment. We affirm the trial court’s orders granting the defendant-wife’s motions under N.C. R. Civ. P. 60(b) and 12(b)(1). Where the husband admitted that paragraphs three and four of his complaint were knowingly false, the complaint was improperly verified. Furthermore, there is a genuine dispute as to the validity of the acceptance of service. The wife testified she never signed the acceptance of service and alleges the signature on the document to be fraudulent. The wife denies ever meeting with or signing
before the notary listed on the acceptance, and the listed address is that of the husband’s sister. The wife denies having ever lived at that address. The trial court properly held the complaint is fatally defective, and the trial court lacked subject matter jurisdiction to enter the divorce judgment. Kumaga v. Kumaga (Lawyers Weekly No. 012-145-22, 7 pp.) (John Tyson, J.) Appealed from Mecklenburg County District Court (Christy Mann, J.) Carolyn Bellof for plaintiff; Jonathan McGirt for defendant. 2022-NCCOA-233
Civil Practice Interlocutory Appeal – Unfiled Order Although the record includes an order signed by the trial court, granting the landlord defendants’ motion to dismiss, the order was not file stamped by the clerk of court. Since it does not appear that the order was filed with the clerk of court, the order was not “entered” within the meaning of N.C. R. Civ. P. 58. Without entry of an order by the trial court, we do not have subject matter jurisdiction to hear this appeal. Appeal dismissed. Marshall v. Wortham Williams & Son, Inc. (Lawyers Weekly No. 012-146-22, 3 pp.) (Lucy Inman, J.) Appealed from Anson County Superior Court (Mark Klass, J.) Michael Maurer and Naomi Ellis for plaintiff; Andrew Pinto and Deborah Bowers for defendants. 2022-NCCOA-234
Domestic Relations Parent & Child – Support – Long Lasting Temporary Order A 2016 order suspended the plaintiff-father’s child support obligation, a 2019 order established plaintiff’s prospective child support obligation, and a 2020 order established his arrearage. The length of time the 2016 order was in effect did not convert it to a permanent order. We affirm the trial court’s 2020 order. The trial court did not describe the 2016 suspension order as either temporary or permanent. But the court did not make the findings of fact that typically appear in a permanent order under G.S. § 50-13.4. The context of the order also indicates that it was intended to be temporary. The matter came before the trial court on plaintiff’s motion seeking an order “reviewing and modify-
ATTORNEY Your spouse probably won’t be on the jury. Try a 90-minute virtual focus group session from Legal Focus Group to get relevant insight into the value of your case and the strength of your arguments.
Contact us today at 910-624-2799 or visit www.legalfocusgroup.com
Virginia Legal Aid Society seeks an energetic, creative attorney for a housing law position in our Suffolk and Lynchburg offices. Please see Employment Opportunities at vlas.org for details.
16 / OPINION DIGESTS ing the terms of temporary child support,” and the language of the order indicates that it was entered “upon the pending issue of review of temporary child support.” The court also indicated that the “cause is retained for further orders as appropriate.” Thus, although the 2016 suspension order did not set a specific reconvening time for the hearing on a permanent order, it indicated that it was not a permanent determination of plaintiff’s child support obligations. Moreover, in the 2020 order challenged in this appeal, the trial court made a number of findings indicating that the court had expected to hear the support matter again within a reasonably brief period after entering the 2016 suspension order. But the court also found that, although the matter was “set for hearing numerous times going back to 2016 and coming forward,” the hearing was delayed because the parties did not have the information necessary for the court to enter a permanent order. In light of the trial court’s findings, we hold that the 2016 suspension order was a temporary child support order that did not determine all issues concerning child support. Moreover, we hold that this temporary order did not convert to a permanent order despite the unusually long time period until the trial court addressed the matter again. Affirmed. Morris v. Morris (Lawyers Weekly No. 012-147-22, 10 pp.) (Richard Dietz, J.) Appealed from Cumberland County District Court (April Smith, J.) Renny Deese for plaintiff; Alicia Jurney for defendant. 2022-NCCOA-235
Civil Rights Attorney’s Fees – Prevailing Party – Legislative Change – Sex-Offender Registration – Out-of-State Convictions Although the district court order in plaintiff’s favor has been vacated as moot, since that order caused the state legislature to remedy the violation of federal law identified by the district court, plaintiff is a prevailing party under 42 U.S.C. § 1988. We affirm the district court’s award of attorney’s fees to plaintiff.
Background
Before plaintiff filed suit, North Carolina required N.C. residents with out-of-state convictions to register as sex offenders based solely on local officials’ ad hoc determinations that the out-of-state convictions were “substantially similar” to a North Carolina offense requiring registration. There was no opportunity to be heard prior to such decisions nor any form of post-decision review. The district court issued a decision declaring that North Carolina had violated plaintiff’s (and his class members’) Fourteenth Amendment due process rights, ordering that class members be removed from the state registry, and enjoining the defendantstate officials from prosecuting class members for offenses applicable only to registered sex offenders. Only then did the N.C. legislature change the law, specifically citing the district court decision. Once the law was changed, the district court vacated its judgment and dismissed plaintiff’s case as moot. Plaintiff sought an award of attorney’s fees under § 1988 as a prevailing party. The state officials argued
that plaintiff could not be a prevailing party because the judgment in his favor had been vacated. The district court disagreed and awarded attorney’s fees to plaintiff.
Discussion
Plaintiff won a final judgment on the merits in the district court. He also obtained substantial judicial relief on his claim, including entry of a final injunction. In the ordinary case, it would be clear that he is a prevailing party under § 1988. But here, the legislature stepped in to correct the constitutional violation identified by the district court. As a result, plaintiff’s case became moot on appeal and his judgment was vacated – leaving him, the defendants argue, without the “currently enforceable judgment” required for recovery under § 1988. Like the district court, we disagree. When the reason for mootness and an accompanying vacatur is that a state legislature acted to remedy a violation of federal law declared by the district court, the plaintiff who proved that violation in court has prevailed. To be sure – and as the district court recognized – a defendant’s voluntary change in conduct prior to the entry of judgment “lacks the necessary judicial imprimatur” to afford a plaintiff prevailing party status. However, an enforceable judgment is not a prerequisite to § 1988 attorney’s fees when the challenged conduct ceases after a plaintiff has received a favorable decision on the merits. Plaintiff proved his claim in court, and he did so before the legislature “capitulated” to the court’s ruling, rendering equitable relief unnecessary and mooting out his case. The very merit of his claim, as adjudicated by the district court, led the legislature to correct the constitutional deficiency identified by that court. In fact, the legislature’s amendment referred expressly to the district court’s judgment in providing for retroactive review of class members’ “substantially similar” determinations. The judgment may have run against state officials and not the state itself, but it was because plaintiff could enforce that judgment against those defendant officials – ordering them to delist hundreds of individuals from the sex-offender registry – that the legislature had to amend its statute or face massive deregistration. For purposes of this § 1988 claim, in other words, what matters is the effect of the judgment on the legislature, and not whether the defendant was a state official or the state itself. We also disagree with the defendants that awarding fees is tantamount to holding them to an adverse judgment that they no longer can appeal. The defendant officials here – those officials with the requisite connection to enforcement of the challenged law – are stand-ins for the State of North Carolina, and once the state abandons the challenged registration scheme, they have no separate interest to vindicate on appeal. A currently enforceable judgment is not a prerequisite to recovery under § 1988. Plaintiff remains a prevailing party entitled to attorney’s fees in connection with his successful district court litigation because the legislature amended the challenged law – and thereby mooted his case – only after he won a final judgment on the merits and because of that judgment. Affirmed.
N O R T H C A R O L I N A L A W Y E R S W E E K LY I M ay 9, 2022
Grabarczyk v. Stein (Lawyers Weekly No. 001-073-22, 17 pp.) (Pamela Harris, J.) 21-1209. Appealed from USDC at Raleigh, N.C. (Terrence Boyle, J.) Joseph Finarelli, Josh Stein, Tamika Henderson and Bryan Nichols for appellants; Paul Moore Dubbeling for appellee. 4th Cir.
Labor & Employment Civil Rights – Race & Age Discrimination Claim – Retaliation – Reassignment Where the plaintiff-employee waited until her response to the defendant-employer’s summary judgment motion to raise for the first time claims based on a supervisor’s statement that she didn’t want plaintiff on a team because she was afraid plaintiff would file another EEOC charge, plaintiff neither exhausted her administrative remedies as to such claims nor adequately pleaded them. We affirm summary judgment for defendant. The only claim properly before the district court was plaintiff’s claim that a temporary reassignment in 2013 was made in retaliation for an EEOC charge that plaintiff had filed in 2007. Plaintiff presented no direct evidence in support of her retaliation claim. Under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework, plaintiff failed to show a causal nexus between her 2007 EEOC charge and the temporary reassignment in 2013. Evidence of recurring animus during the interim between the filing of a charge and an adverse action can be sufficient to satisfy the element of causation in a retaliation claim. However, plaintiff points to only one alleged comment over six years by a supervisor, and that comment did not relate in any way to plaintiff’s 2013 reassignment. The supervisor’s statement about not wanting plaintiff on her team does not amount to evidence of recurring retaliatory animus sufficient to create a causal link between plaintiff’s 2007 EEOC charge and the 2013 employment action. The supervisor was not even the decision maker with respect to the 2013 reassignment. Even assuming that plaintiff could establish a prima facie case for employment retaliation, the burden would then shift to defendant to proffer a legitimate, non-discriminatory reason for its decision. The record contains ample evidence to support defendant’s decision to reassign plaintiff in 2013. The Space and Naval Warfare Systems Center, where plaintiff worked, reassigned multiple employees, within and outside of plaintiff’s protected classes (age and race) from its Contracts Administration section to its Task Orders section to address a statutorily mandated shift from single- to multi-award government contracts. Following the McDonnell Douglas framework, the burden would then shift back to plaintiff to show that defendant’s reason was pretextual. She has presented no such evidence. In fact, she does not even argue that defendant’s decision was pretextual. Lastly, we note the district court’s statement in its order that a failure to exhaust implicates subject matter jurisdiction. Although exhaustion is imperative, it is not jurisdictional. A little over a year before the district court’s decision in this case, the Supreme Court held that Title
VII’s exhaustion requirement is a non-jurisdictional “processing rule, albeit a mandatory one” that must be enforced when properly raised. Fort Bend Cnty., Tex. v. Davis, 139 S. Ct. 1843 (2019). Defendant had no reason to raise the exhaustion objection at the outset of the litigation because plaintiff did not assert claims related to team nonassignment until her response to defendant’s summary judgment motion. At that point, defendant promptly and properly raised the issue. Plaintiff has not suggested otherwise; thus, she has waived any possible argument that defendant failed to do so. Affirmed. Walton v. Harker (Lawyers Weekly No. 001-075-22, 22 pp.) (Steven Agee, J.) 21-1041. Appealed from USDC at Charleston, S.C. (Richard Mark Gergel, J.) Timothy O’Neill Lewis, Allan Holmes and Rebecca Wolfe for appellant; William Hammond Jordan and Rhett DeHart for appellee. 4th Cir.
Criminal Practice Hobbs Act Robbery – Victim Impact Statements – Witness Tampering – Screenshots Although the district court should not have allowed (1) the employees of two robbed jewelry stores to testify about how the emotional aftermath of the robberies affected their lives or (2) a law enforcement agent to give lay testimony about coded language defendant used in a recorded telephone call, the government’s other evidence of defendant’s guilt was overwhelming. We affirm defendant’s convictions for conspiracy to commit Hobbs Act robbery, two counts of Hobbs Act robbery, brandishing a firearm during the commission of a crime of violence, and witness tampering. Through the testimony of his accomplices, the jewelry store employees, and Byron Sparks – who sold defendant a vehicle in exchange for drugs, money and stolen jewelry – the government explained how defendant planned and helped to execute the robberies of two jewelry stores and then tried to intimidate Sparks to keep him from testifying. The government also presented corroborating evidence such as cellular analysis, GPS tracking data and traffic camera footage.
Victims’ Statements
The district court erred when it allowed the jewelry store employees to testify about how the robberies affected their lives. Perhaps the testimony about how Tiffani Bene lost her marriage and her children, Karen Swain was afraid to leave her home, and Shatima Soler-Garcia tried to go back to work but had to quit her job because she had panic attacks helps to demonstrate that the robberies were traumatizing for the store employees -- more akin to a victim impact statement at sentencing. But it is only minimally relevant to proof of an element of the crime charged -- the store employees’ fear of injury during the robbery. The district court erred when it allowed the victim store employees to testify about the robberies’ long-term effects on their lives. However, the district court properly admitted Bene’s testimony that defendant was the decoy guy and Swain’s testimony that defendant was trying to act like he was afraid
OPINION DIGESTS / 17
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 May 9, 2022
during the Elizabeth City robbery because those statements are proper lay opinions. Defendant asserts that Bene’s and Swain’s testimony was not rationally based on their observations during the robbery because he questions their abilities to think rationally during the “brief and chaotic time” his accomplices were robbing the store. To the contrary, Bene and Swain explained why they held those beliefs, and their testimony indicates that their opinions were “based on [their] reasoning and opinions about witnessed events,” which is the hallmark of lay opinion testimony. Bene and Swain offered a unique viewpoint of the robbery that is not reflected in the soundless surveillance video. Therefore, their statements were properly admitted as lay opinions.
Agent’s Testimony
The district court also erred when it allowed Robertson to interpret recorded phone calls between defendant and his then-incarcerated girlfriend. Robertson testified that one call’s references to a “mission” referred to a planned robbery and that another call’s references to a basketball game referred to a completed robbery. We agree with defendant that Robertson cannot testify about the meaning of a conversation to which he was not a party. Because he did not participate in the conversation, Robertson was in no better position than the jury to decipher what defendant meant when he made the statements at issue. A law enforcement officer’s narrative gloss that consists almost entirely of her personal opinions of what a defendant’s conversations meant based on her investigation after the fact, not on her perception of the facts is not admissible. About an October 12, 2018 call, Robertson testified that it “didn’t make sense” that defendant “would be so cryptic about something as seemingly innocuous as a basketball game,” and therefore, the basketball game “was code for discussion of the robbery.” The jury, if it were so inclined, could have reached this conclusion on its own, without Robertson’s personal opinion about the meaning of the conversation, which aligned with the government’s theory of the case. The same is true with regard to Robertson’s testimony about the meaning of certain language in a July 12, 2018 call. Robertson’s insistence that defendant’s use of the word “mission” was a reference to “a robbery
that’s being planned” is mere speculation absent the information Robertson discovered afterward while investigating this case. Moreover, the jury, hearing all the evidence the Government presented, did not need Robertson to tell them that defendant “meant that [he had] a leadership role” when he said he had “to go in because it’s [his] lineup.” To permit a law enforcement officer to testify in the manner Robertson did here is to bolster the government’s theory of the case with the imprimatur of law enforcement, which is improper. As such, the district court erred when it failed to exclude this testimony.
Witness Tampering
We further hold that the district court appropriately allowed Sparks to testify that defendant was dangerous and admitted screenshots that Sparks received of photographs of the letters saying that he was an informant. The government connected that screenshot to defendant by introducing testimony from Robertson that the images in the screenshot and in a page from a letter defendant admits he wrote “appear to be similar.” Another screenshot is a photograph of a letter purportedly written on December 23, 2019. The jury could compare the handwriting in both letters. The jury could also compare the similar words and phrases used in and the similar content of both letters. If the jury were to find that the documents depicted in the screenshots came from defendant, then even defendant would seem to agree that the threats therein “would be relevant to show the intimidation of a witness.” The same is true of Sparks’s testimony that the documents depicted in the screenshots came from defendant. Witness tampering involves “intimidation,” “threat[s],” or “corrupt[] persua[sion],” 18 U.S.C. § 1512(b), and Sparks’s explanation of why he felt threatened by defendant’s branding him as an informant bears on whether defendant engaged in witness tampering. The jury also heard defendant’s own testimony that he spent 14 years on death row for first-degree murder and later pled guilty to conspiracy to commit and accessory after the fact to murder. Sparks’s testimony therefore did not paint defendant darker than he already must have appeared. Any risk of unfair prejudice is minimal. Affirmed. United States v. Walker (Lawyers Weekly No. 001-076-22, 37 pp.) (Stephanie Thacker, J.) 21-4088. Ap-
pealed from USDC at New Bern, N.C. (Louise Flanagan, J.) Thomas Kieran Maher and Amos Todd for appellant; Kristine Fritz, Norman Acker and David Bragdon for appellee. 4th Cir.
U.S.C. § 455(a). In our view, a reasonable observer who is informed of all the surrounding facts and circumstances would not reasonably question our impartiality.
Labor & Employment
Due Process
Public Employees – Federal Public Defender – Sexual Harassment Claim Plaintiff alleges that, not only was she subjected to sexual harassment when she worked as a federal public defender, but also that the Fourth Circuit Court of Appeals’ Employment Dispute Resolution Plan (EDR Plan) was improperly designed and executed. Plaintiff has stated a due process deprivation of property claim and an equal protection claim, but some of the defendants are entitled to sovereign immunity. We deny plaintiff’s recusal motion. We affirm in part and reverse in part the district court’s judgment in favor of defendants. Plaintiff alleges that she was subjected to sexual harassment in the workplace and that she was constructively discharged. But the substance of her claims focuses on the defendants’ actions in both designing the EDR Plan, and in turn in executing the EDR Plan in response to her allegations of workplace sexual harassment. Plaintiff also effectively alleges that defendants’ actions knowingly deprived her of meaningful review of her claims of sexual harassment and that these actions ultimately led to her constructive discharge.
Vacatur & Recusal Motion
Plaintiff moves to vacate the district court judgment and for recusal of the district court judge and appellate panel the Administrative Office of the United States Courts (AO), and Judicial Conference officials were involved in the designation and assignment process in this case, despite the fact that the AO and Judicial Conference have, as entities, been named as defendants. Given the constraints of the processes involved, plaintiff has not shown a likelihood of actual bias. Although we agree with plaintiff that, from a public perception standpoint, it would have been preferable had no AO or Judicial Conference officials participated in the designation and assignment process, and that none of the defendants received notice of the panel’s identity prior to the remaining parties, the attorneys, and the public, we nevertheless are not persuaded that these circumstances require our disqualification under 28
The Fourth Circuit’s EDR Plan effectively affords employees with the substantive right to work under conditions free from discrimination and harassment, as well as the substantive right to be free from retaliation in the event that they file a claim under the EDR Plan. The Plan also creates a clear and specific set of procedures that are to be followed in the event that an employee claims that his or her substantive rights afforded under the EDR Plan have been violated. The EDR Plan provides plaintiff, in part, a right to redress injuries caused by workplace discrimination, a right that is functionally equivalent to a cause of action and one that is vitally important considering the lack of alternative means of seeking relief for employees of the federal judiciary. Therefore, the EDR Plan afforded plaintiff with substantive rights that are protected property interests under the Fifth Amendment. However, the minimal allegations in plaintiff’s complaint are insufficient to satisfy the dissemination/ publication requirement imposed by the Supreme Court to show deprivation of a liberty interest. Plaintiff alleges that the EDR Plan was facially invalid for two reasons: (1) it denied her a neutral decisionmaker because it required the involvement of the Chief Judge and Circuit Executive, who were involved in the denial-of-promotion decision that she challenged; and (2) judiciary officials told plaintiff that the presiding officer in an EDR hearing was powerless to order the EDR Plan’s promised remedies, which made the availability of the EDR process a “meaningless sham.” However, plaintiff fails to explain why these are innate defects of the EDR Plan itself that would apply in all circumstances. Nevertheless, plaintiff sufficiently alleges an as-applied challenge. The refusal to disqualify the federal public defender (FPD) from the investigation and the alleged coercing of plaintiff to end the investigation stated a plausible violation of her due process rights. The refusal to disqualify the FPD created a conflict of interest that infected the entire investigation when plaintiff was led to believe that the FPD would be the final decisionmaker in the case. Leading plaintiff to believe that her only way forward was to obtain a favorable decision
MEDIATION TRAINING Approved by the Dispute Resolution Commission and the NC CLE Board!
MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC.
Superior Court Mediation Training
Superior Court Mediation Training
Family Financial Mediation Training
MAY 16 - 20, 2022 RALEIGH, NC
AUGUST 8 - 12, 2022 CHARLOTTE, NC
SEPTEMBER 12 - 16, 2022 RALEIGH, NC
Andy Little, Lead Instructor For more information, please contact us at:
1-888-842-6157 or info@MediationIncNC.com Visit our web site at www.MediationIncNC.com
18 / OPINION DIGESTS from one of the key subjects of the investigation could be found to have deprived plaintiff of her property interest in the right to a remedy from injuries incurred because of harassment and discrimination.
Equal Protection
Contrary to the district court’s holding, plaintiff did not assert a pure retaliation claim (which is cognizable, not under the Fifth Amendment, but under the First); instead, she alleged that defendants violated her Fifth Amendment equal protection rights by (a) “subjecting [her] to harassment, retaliation, and discrimination,” (b) “failing to take immediate and effective action on her complaints,” and (c) “failing to provide her with meaningful review or remedies.” Thus, plaintiff has alleged a violation of her right under the Equal Protection Clause of the Fifth Amendment to be free from sex discrimination. Her complaint adequately alleged that defendants were deliberately indifferent to her complaints of sexual harassment.
Sovereign Immunity
The defendants sued in their official capacities (Official Capacity Defendants) assert sovereign immunity. However, plaintiff seeks a declaration that the actions that the Official Capacity Defendants took were unconstitutional. In addition, she expressly requests in her complaint that she be awarded front pay in lieu of reinstatement. This remedy has been deemed by federal courts to constitute an equitable remedy. If plaintiff can prove the allegations in her complaint, she will establish that the Official Capacity Defendants acted beyond the scope of their powers and/or in an unconstitutional manner, and in turn would be entitled to equitable relief. The Official Capacity Defendants are not shielded by sovereign immunity from those nonstatutory review claims.
APA
Although there is little case law on this issue, we hold that, when Congress excluded the “courts of the United States” from the Administrative Procedures Act, it also intended to exclude entities such as the AO, federal judicial councils, circuit executives, and federal public defenders. Unlike the executive agencies subject to the APA, federal courts do not take what could reasonably be described as “executive agency action[s],” i.e., they do not adopt rules or policies that impact the public at large and in turn could cause members of the public to suffer legal wrong. The same holds true for entities that are related to the federal courts, including the AO, federal judicial councils, 101 circuit executives, and federal public defenders. We agree with the district court that the APA does not waive the Official Capacity Defendants’ sovereign immunity.
Other Issues
Plaintiff first argued the application of the Back Pay Act in district court. However, she has failed to establish that the district court could reasonably be classified as an “appropriate authority” under the Back Pay Act because there was no “timely appeal” or an “administrative determination” in this case. Given the Supreme Court’s disinclination to expand Bivens causes of action, the court declines to expand Bivens to encompass plaintiff’s claims.
However, plaintiff contends that she has been deprived of a forum for meaningful review of her claims by judicial officers. As a result, we conclude that the Civil Service Reform Act should not be interpreted as precluding plaintiff’s claims for equitable relief against the Official Capacity Defendants. Recusal motion denied. District court order affirmed in part, reversed in part and remanded. Strickland v. United States (Lawyers Weekly No. 001-074-22, 118 pp.) (Mary Beck Briscoe, S.J.) No. 21-1346. Appealed from USDC at Asheville, N.C. (William Young, J.) Jeannie Suk Gerson and Cooper Strickland for appellant; Thomas Byron, Shannon Spainhour, Brian Boynton, Amanda Mundell and William Stetzer for appellees. Lynn Hecht Schafran, Jennifer Becker, Sunu Chandy, Emily Martin, Ally Coll, Shea Holman, Kristin Bender, Michael Gottlieb, Michaela Connolly, Erin Meyer, Deeva Shah, Ilann Maazel, Samuel Shapiro, Elizabeth Wydra, Brianne Gorod and Miriam Becker-Cohen for amici curiae. 4th Cir.
Civil Practice Appeals – Law of the Case – Reversal – Zoning – Asphalt Plant On a prior appeal on the issue of whether a proposed asphalt plant would be too close to an educational facility, this court reversed the trial court’s order, which had upheld the defendant-county’s denial of a permit to build the asphalt plant. On remand, the trial court correctly refused to consider the county’s other grounds for denying the permit. We affirm the trial court’s order requiring the county to issue the permit. Although the county relied on several grounds to deny plaintiff’s application to build an asphalt plant, the superior court’s original order affirming the denial relied only the issue of whether the plant would be too close to an educational facility. While it is true that an appellee does not waive future consideration of alternative legal grounds by failing to ask our court to consider them under N.C. R. App. P. 10(a), a trial court is compelled to follow the mandate of this court. On the prior appeal, the county did not seek consideration of the county’s other grounds for denying the permit, and we held that “the trial court erred in affirming the Board’s decision to uphold the denial of Appalachian’s permit application.” Rather than vacating the trial court’s order, we reversed. Therefore, despite the existence of the county board’s other grounds for denial, the trial court was required to order the county to issue the permit. Appalachian Materials, LLC v. Watauga County (Lawyers Weekly No. 011-101-22, 5 pp.) (Chris Dillon, J.) Appealed from Watauga County Superior Court (Gary Gavenus, J.) Tyler Moffatt for petitioner; Chelsea Bell Garrett for respondent. 2022-NCCOA-280
Civil Practice Statute of Limitations – Counterclaim – Conflicting Holdings – No Relation Back Before our Rules of Civil Procedure were adopted, our Supreme Court
N O R T H C A R O L I N A L A W Y E R S W E E K LY I M ay 9, 2022
held that a counterclaim filed after the expiration of a limitations period related back to the filing of the plaintiff’s complaint, and this court held the same shortly after the adoption of the Rules. However, our Supreme Court later held that, when pre-Rules caselaw conflicted with the Rules, the Rules should govern. Thereafter, this court held that counterclaims did not relate back to the filing of the complaint under Rule 13. PharmaResearch Corp. v. Mash, 163 N.C. App. 419, 594 S.E.2d 148, disc. rev. denied, 358 N.C. 733 (2004). We are bound by PharmaResearch to hold that defendant’s 20 December 2018 counterclaim, alleging plaintiff’s negligence in a 19 December 2015 auto accident, did not relate back to the 19 December 2018 filing of plaintiff’s complaint and is barred by the three-year statute of limitations in G.S. § 1-52(16). We affirm summary judgment for plaintiff on defendant’s counterclaim. Upchurch v. Harp Builders, Inc. (Lawyers Weekly No. 011-10222, 7 pp.) (Darren Jackson, J.) (Hunter Murphy, J., concurring in result only without separate opinion) Appealed from New Hanover County Superior Court (Phyllis Gorham, J.) Maynard Brown for plaintiff; Andrew Hanley for defendants. 2022-NCCOA-301
Workers’ Compensation Appeals – First Impression – ‘Good Ground’ – Credibility G.S. § 97-85(a) allows the Industrial Commission to reconsider the evidence that was presented to a deputy commissioner, receive further evidence and amend the deputy commissioner’s award “if good ground be shown” to do so. On a matter of first impression, we hold that the Commission need not expressly state that it has determined that such “good ground” exists. We affirm the Commission’s reversal of the deputy commissioner’s award of benefits. Ordinarily, when a trial court has discretion to act upon a showing of good cause and makes no express findings, we presume the trial judge found the necessary good cause and examine whether the record supports that finding. We see no reason to create a different rule for this discretionary decision of the Commission. There is no indication in the record that the Commission acted under any misapprehension of the law when assessing its authority to reconsider the deputy commissioner’s findings. Accordingly, we presume the Commission found the necessary good grounds to reconsider the evidence and change the resulting award. Even though the deputy commissioner found plaintiff to be a “compelling and credible witness,” the Commission could consider plaintiff’s failure to tell medical providers that his knee pain was work related and his failure to present corroborating evidence – such as the testimony of a co-worker who plaintiff said had witnessed the accident – in ultimately deciding that plaintiff’s testimony was not credible. Affirmed. Forte v. Goodyear Tire & Rubber Co. (Lawyers Weekly No. 011103-22, 10 pp.) (Richard Dietz, J.) Appealed from the Industrial Commission. Kathleen Sumner, David Stewart and Jay Gervasi for plaintiff; Duane Jones and Jennifer Mitchell
for defendants. 2022-NCCOA-281
Domestic Relations Parent & Child – Termination Petition – Failure to Pay Child Support – Underlying Order Even though a child support order was entered into evidence at the termination-of-parental-rights hearing, the trial court did not make a finding that an order existed requiring the respondent-father to pay child support. The findings of fact only include findings that respondent paid child support and that respondent’s child support payments stopped after petitioner elected to stop garnishment of child support from respondent’s paychecks through North Carolina Centralized Collections. Thus, based on the findings of fact made, the trial court’s conclusion that no grounds existed to terminate respondent’s parental rights was not erroneous. While the record contains evidence that would support a finding of fact that a child support order was in effect and a subsequent conclusion that grounds existed to terminate respondent’s parental rights pursuant to G.S. § 7B-1111(a)94), a finding that grounds exist to authorize termination does not require a trial court to terminate parental rights. The trial court acted within its discretion in electing to not terminate respondent’s parental rights, and any error in the trial court’s failure to make a finding regarding the existence of a child support order and subsequently concluding that grounds did not exist to terminate respondent’s parental rights was harmless. We affirm the trial court’s denial of the petition to terminate respondent’s parental rights. Although there was conflicting evidence about an incident in which respondent held a gun at his side, the trial court could assign more weight to respondent’s account that, even though he was holding a firearm, his finger was not on the trigger of the firearm, the firearm remained at his side and was not pointed at anyone, and his statement, “Does it look like I am serious now?” pertained to respondent’s threat to take his own life. The trial court clearly took this evidence to show that respondent was not threatening or combative towards petitioner. The evidence presented at the termination hearing shows that petitioner frequently did not respond to respondent’s communications and primarily responded when it benefited her (i.e., to ask where to send divorce papers, request respondent relinquish his parental rights, etc.). Additionally, the Guardian ad Litem testified that petitioner’s motive in switching the child support payments from garnishment from respondent’s paychecks through an agency to requiring respondent to pay on his own was because failure to pay child support is a ground for termination of parental rights. This testimony supports the trial court’s finding that petitioner’s “agenda” was to terminate respondent’s parental rights. Thus, we conclude that this finding of fact is supported by clear, cogent, and convincing evidence. Affirmed. In re S.R. (Lawyers Weekly No. 011-104-22, 17 pp.) (Fred Gore, J.) Appealed from Granville County District Court (Caroline Burnette, J.) Edward Eldred for petitioner; Lisa Anne Wagner for respondent. 2022-NCCOA-285
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 May 9, 2022
Civil Practice Special Proceedings – Public Records Act – DHHS – District Attorney When a media coalition asked the North Carolina Department of Health and Human Services to release records related to the death of a jail inmate, the local district attorney filed an objection and request for a temporary protective order. However, not only did the DA fail to issue the summons required for a special proceeding, but the DA also lacked authority under the Public Records Act to file a request for a temporary protective order. We dismiss the state’s appeal from the trial court’s order dissolving its temporary protective order. We remand with instructions for the trial court to dismiss the underlying proceeding for lack of jurisdiction. A temporary protective order is a special proceeding. Upon the filing of a special proceeding such as this, “summons shall be issued forthwith[.]” N.C. R. Civ. P. 4(a). When the DA filed his objection and request for a temporary protective order to keep the media coalition from accessing any files relating to the inmate’s death, neither The News & Observer, who filed the original voluntary public records request, nor any other member of the media coalition was named as a party or was notified to appear and answer. Although counsel for the DHHS is shown as having been served a copy of the DA’s objection, no summons was issued, nor was the DHHS named as party to the action. In fact, the record is devoid of any summons commencing the matter whatsoever. Thus, the DA’s objection and request for a temporary protective order was not initiated in accordance with our Rules of Civil Procedure; therefore, our courts do not have jurisdiction to consider the matter. Furthermore, according to McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C. App. 459, 596 S.E.2d 431, writ denied, disc. review denied, appeal dismissed, 359 N.C. 69, 603 S.E.2d 131 (2004), “the Public Records Act does not appear to allow a government entity to bring a declaratory judgment action; only the person making the public records request is entitled to initiate judicial action to seek enforcement of its request.” Under our precedent and G.S. § 132- 9, it was improper for the DA to file a request for temporary protective order to keep the media coalition from accessing the records. This is an additional jurisdictional defect on the face of this action. Dismissed and remanded. In re Public Records Request (Lawyers Weekly No. 011-105-22, 9 pp.) (John Arrowood, J.) (Hunter Murphy, J., concurring in part without separate opinion) Appealed from Forsyth County Superior Court (David Hall, J.) Mary Carla Babb for the state; Michael Tadych, Hugh Stevens, Amanda Martin and Elizabeth Soja for appellee. 2022-NCCOA-284
Trusts & Estates Will Caveat – Standing – Illegitimate Child Even though the propounder of the decedent’s will was deemed to have admitted that the caveator was the decedent’s “only biological child,” since the record contains no evidence
that the decedent and the caveator’s mother were married when she was born or that any of the conditions set out in G.S. § 29-19(b) – which would have allowed the caveator to inherit from the decedent – had been satisfied, the caveator has no legal right to inherit from the decedent. Since the caveator does not argue there was an earlier will, she lacks standing to challenge the will probated by the propounder. We vacate summary judgment for the caveator and remand for dismissal of her caveat. Standing to sue means simply that the party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Only a person “interested in the estate” may file a caveat after a will is submitted to probate. Two categories of people have standing to bring a caveat: (1) those who would take under a different will and (2) those who would take under the intestacy statutes. The caveator does not allege, and no evidence in the record shows, that the decedent had a prior will. Accordingly, the caveator could only be legally interested in the decedent’s estate if she qualified to take from him through intestate succession. Absent a statute to the contrary, a child born out of wedlock has no right to inherit from her putative father. Section 29-19(b) sets out several instances in which a child born out of wedlock may take from a putative father, such as a judicial determination or acknowledgement. However, the record contains no evidence that the decedent and the caveator’s mother were married to each other when the caveator was born or that any of the conditions in § 29-19(b) have been satisfied. In fact, the caveator’s birth certificate lists no father, and the family history affidavit filed by the propounder asserts that the decedent was never married. Because the caveator’s status as the decedent’s biological child is not sufficient, standing alone, to establish her right to take from the decedent through intestate succession, the caveator is not a party legally interested in the decedent’s estate. Consequently, she lacks standing to bring this caveat. Although a caveator need only be a potential beneficiary to challenge a will, given the lack of an earlier will, the caveator has not shown that she is a potential beneficiary. Even if there are other potential heirs, the caveator failed to show that she had standing to bring this caveat on her own behalf. Consequently, the trial court lacked subject matter jurisdiction over the caveator’s particular dispute. Vacated and remanded for dismissal. In re Purported Will of Moore (Lawyers Weekly No. 011-106-22, 9 pp.) (Allegra Collins, J.) Appealed from Harnett County Superior Court (Winston Gilchrist, J.) Matthew Sawchak, Ethan White and Brandan Biffany for propounder; Robert Buzzard and Tracy Berry for caveator. 2022-NCCOA-283
Tort/Negligence Child Sexual Abuse – SAFE Child Act – Claim Revival – Res Judicata The Safe Child Act of 2019 revived claims of child sexual abuse that would have otherwise been time-
barred, like plaintiff’s. However, since plaintiff had already filed his claims in 2011 and since they were summarily dismissed, res judicata bars plaintiff’s 2020 complaint, which arises out of the same conduct as alleged in his 2011 complaint. We affirm the trial court’s grant of defendant’s motion to dismiss. Plaintiff alleges that, in the 1970’s, he was sexually abused by a now-deceased priest. The SAFE Child Act (S.B. 199), § 4.2(b) states, “Effective from January 1, 2020, until December 31, 2021, this section revives any civil action for child sexual abuse otherwise timebarred under [G.S. §] 1-52 as it existed immediately before the enactment of this act.” S.B.199, § 4.2(b) (the Revival Provision). Based on the plain language of the Revival Provision, S.B. 199 revives only civil actions for child sexual abuse otherwise time-barred and does not revive civil actions for child sexual abuse barred by disposition of a previous action. Without specific language from the Legislature to the contrary, this court must observe the principles of the doctrine of res judicata as they apply to this case. There was a final judgment in plaintiff’s 2011 action, and the parties were the same as those in this 2020 action. Although plaintiff’s claims in the 2011 complaint and the 2020 complaint were not identical, all claims were premised on the same core factual allegations. Because it is clear any new claims brought in the 2020 complaint could have been adjudicated in a prior action, having arisen from the same factual assertions, we hold res judicata applies to all claims brought in the 2020 complaint. Plaintiff’s claims, having been summarily dismissed, the final order of Mecklenburg County Superior Court precludes their revival in the absence of some other procedural tool, such as a grant from the trial court on a motion to set aside judgment pursuant to N.C. R. Civ. P. Rule 60(b)(6), or a specific grant of revival from the Legislature. While such an outcome may not have been the intent of the Legislature in drafting the Revival Provision, this court is bound by the plain language of S.B. 199. Affirmed. Doe 1K v. Roman Catholic Diocese of Charlotte (Lawyers Weekly No. 011-107-22, 9 pp.) (Jeffery Carpenter, J.) Appealed from Mecklenburg County Superior Court (Carla Archie, J.) Sam McGee for plaintiff; Joshua Davey for defendant. 2022-NCCOA-287
Tort/Negligence Child Sexual Abuse – SAFE Child Act – Claim Revival – Res Judicata The Safe Child Act of 2019 revived claims of child sexual abuse that would have otherwise been timebarred, like plaintiff’s. However, since plaintiff had already filed his claims in 2011 and since they were summarily dismissed, res judicata bars plaintiff’s 2020 complaint, which arises out of the same conduct as alleged in his 2011 complaint. We affirm the trial court’s grant of defendant’s motion to dismiss. Plaintiff alleges that, in the 1970’s, he was sexually abused by a now-deceased priest. The SAFE Child Act (S.B. 199), § 4.2(b) states, “Effective from January 1, 2020, until December 31, 2021, this section revives any civil action for child sexual abuse otherwise time-
barred under [G.S. §] 1-52 as it existed immediately before the enactment of this act.” S.B.199, § 4.2(b) (the Revival Provision). Based on the plain language of the Revival Provision, S.B. 199 revives only civil actions for child sexual abuse otherwise time-barred and does not revive civil actions for child sexual abuse barred by disposition of a previous action. Without specific language from the Legislature to the contrary, this court must observe the principles of the doctrine of res judicata as they apply to this case. There was a final judgment in plaintiff’s 2011 action, and the parties were the same as those in this 2020 action. Although plaintiff’s claims in the 2011 complaint and the 2020 complaint were not identical, all claims were premised on the same core factual allegations. Because it is clear any new claims brought in the 2020 complaint could have been adjudicated in a prior action, having arisen from the same factual assertions, we hold res judicata applies to all claims brought in the 2020 complaint. Plaintiff’s claims, having been summarily dismissed, the final order of Mecklenburg County Superior Court precludes their revival in the absence of some other procedural tool, such as a grant from the trial court on a motion to set aside judgment pursuant to N.C. R. Civ. P. Rule 60(b)(6), or a specific grant of revival from the Legislature. While such an outcome may not have been the intent of the Legislature in drafting the Revival Provision, this court is bound by the plain language of S.B. 199. Affirmed. Doe v. Roman Catholic Diocese of Charlotte (Lawyers Weekly No. 011-107-22, 9 pp.) (Jeffery Carpenter, J.) Appealed from Mecklenburg County Superior Court (Carla Archie, J.) Sam McGee for plaintiff; Joshua Davey for defendant. 2022-NCCOA-287
Tort/Negligence Child Sexual Abuse – SAFE Child Act – Claim Revival – Res Judicata The SAFE Child Act of 2019 revived claims of child sexual abuse that would have otherwise been timebarred, like plaintiff’s. However, since plaintiff had already filed his claims in 2011 and since they were summarily dismissed, res judicata bars plaintiff’s 2020 complaint, which arises out of the same conduct as alleged in his 2011 complaint. We affirm the trial court’s grant of defendant’s motion to dismiss. Plaintiff alleges that, in 1984 when he was a teenager, he was sexually abused by a now-deceased priest in the defendant-diocese. The SAFE Child Act (S.B. 199), § 4.2(b) states, “Effective from January 1, 2020, until December 31, 2021, this section revives any civil action for child sexual abuse otherwise timebarred under [G.S. §] 1-52 as it existed immediately before the enactment of this act.” S.B.199, § 4.2(b) (the Revival Provision). Based on the plain language of the Revival Provision, S.B. 199 revives only civil actions for child sexual abuse otherwise time-barred and does not revive civil actions for child sexual abuse barred by disposition of a previous action. Without specific language from the Legislature to the contrary, this court must observe the principles of the doctrine of res judicata as they apply to this case. There was a final judgment in plaintiff’s 2011 action, and the parties
20 / OPINION DIGESTS were the same as those in this 2020 action. Although plaintiff’s claims in the 2011 complaint and the 2020 complaint are not identical, all claims were premised on the same core factual allegations. Because it is clear any new claims brought in the 2020 complaint could have been adjudicated in a prior action, having arisen from the same factual assertions, we hold res judicata applies to all claims brought in the 2020 complaint. Plaintiff’s claims, had they not been dismissed with prejudice in his 2011 action, would have fallen within the Revival Provision of S.B. 199. However, having been summarily dismissed, the final order in the 2011 action precludes their revival in the absence of some other procedural tool, such as a grant from the trial court on a motion to set aside judgment pursuant to N.C. R. Civ. P. 60(b)(6), or a specific grant of revival from the Legislature. While such an outcome may not have been the intent of the Legislature in drafting the Revival Provision, this court is bound by the plain language of S.B. 199. Affirmed. Doe v. Roman Catholic Diocese of Charlotte (Lawyers Weekly No. 011-108-22, 9 pp.) (Jeffery Carpenter, J.) Appealed from Mecklenburg County Superior Court (Carla Archie, J.) Sam McGee for plaintiff; Joshua Davey for defendant. 2022-NCCOA-288
Real Property Sale Contract – Storm Damage – Landlord/Tenant – Tort/Negligence The plaintiff-tenants contracted to buy the defendant-landlords’ house, but there was a hail storm during the contract’s due diligence period. The parties’ contract gave the tenants several options: (1) terminate the contract, (2) negotiate repairs, or (3) proceed to closing and receive any of the landlords’ insurance proceeds. Although there was a dispute as to whether there was hail damage to the roof of the house, since the landlord’s insurance company found no hail damage, there were no insurance proceeds. The parties’ contract did not give the tenants the option they took: filing suit to compel specific performance by the landlords. We affirm summary judgment for the landlords on the tenants’ claims for specific performance and breach of the implied warranty of habitability. We affirm summary judgment for the landlords on their claim for summary ejectment. We reverse summary judgment for the landlords on their counterclaims for tortious interference with contract and fraud. In support of their claim for breach of the implied warranty of habitability, the tenants made conclusory statements about unspecified electrical issues, violations of zoning ordinances and building codes. The tenants also alleged water leaks, a malfunctioning air conditioning system and vermin, but no specific facts appear in the record to substantiate such claims. Moreover, there is no indication that the landlords received written notice of any needed repairs or if the conditions constituted an emergency. Therefore, the trial court properly allowed the landlords’ motion for summary judgment on the tenants’ claim for breach of the implied warranty of habitability. Pursuant to G.S. § 7A-240 and E. Carolina Farm Credit, ACA v. Salter, 113 N.C. App. 394, 489 S.E.2d 610
(1994), the superior court had jurisdiction to rule on the landlord’s claim for summary ejectment. However, the landlords’ forecast of evidence did not satisfy any of the elements of tortious interference with contract. The landlords’ fraud counterclaim fails because the trial court found that the factual issue of whether there was hail damage was disputed. There are also gaps in the forecast of evidence as to whether the landlords were in fact deceived by the tenants’ alleged false representations. Affirmed in part, reversed in part, and remanded. Johnston v. Pyka (Lawyers Weekly No. 011-109-22, 22 pp.) (Fred Gore, J.) Appealed from Gaston County Superior Court (Gregory Hayes, J.) John Kirby for plaintiffs; Thomas Kakassy for defendants. 2022-NCCOA-289
Workers’ Compensation Causation – Medical Treatment – Bariatric Surgery – Knee Surgery Where there was evidence before the Industrial Commission that (1) plaintiff had previously undergone total knee replacement surgery, (2) her knee hardware had begun to loosen, (3) a fall at work materially aggravated the loosening of her knee hardware, (4) that material aggravation accelerated the need for knee surgery, and (5) doctors said plaintiff’s body mass index needed to be brought below 40 before the knee surgery, the Commission could conclude that plaintiff’s bariatric surgery was causally related to her compensable fall. We affirm the Commission’s award of benefits for plaintiff’s bariatric and knee operations.
Knee Surgery
In his first deposition, Dr. James Comadoll agreed that he had no reason to believe that plaintiff’s fall at work caused her knee hardware to loosen. In his second deposition, Dr. Comadoll agreed that the fall at work materially aggravated the hardware loosening. If we view these depositions in a light to favor defendants, we could describe Dr. Comadoll’s testimonies as contrarian: that he first concluded the work accident did not cause the hardware to loosen and then later concluded the work accident did cause the hardware to loosen in the form of a material aggravation. If we view the evidence in a light to favor plaintiff, we could describe the testimony Dr. Comadoll gave in his second deposition as a clarification of his first deposition: that the work accident did not cause plaintiff’s right knee hardware to loosen; rather, it only accelerated the loosening of the hardware through a material aggravation of the prosthesis. The presumption set out in Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997) – once a claimant shows the compensability of an injury, the claimant is entitled to a presumption that any further medical treatment for the “very injury the Commission has previously determined to be the result of a compensable accident” is directly related to that compensable injury – is intended to serve as a benefit to plaintiffs and not a burden. Regardless of how we treat the differences in Dr. Comadoll’s deposition testimony, the Parsons presumption applies to the material
N O R T H C A R O L I N A L A W Y E R S W E E K LY I M ay 9, 2022
aggravation theory of compensability for plaintiff’s right knee injury. Plaintiff was therefore entitled to a presumption that the requested medical treatment for her right knee was necessitated by her work accident. Defendants thus had to produce evidence that the medical treatment plaintiff sought—the total revision of her right knee replacement—was not directly related to the material aggravation of plaintiff’s right knee that resulted from the work accident. In light of the whole of Dr. Comadoll’s first and second deposition testimony, defendants have not presented any expert witness testimony or other affirmative medical evidence that plaintiff’s accident did not materially aggravate her pre-existing right knee condition. Dr. Comadoll’s testimony in his first deposition that the work accident did not cause the loosening does not refute or counter his testimony that the work accident materially aggravated the loosening and accelerated the need for surgery. Accordingly, defendants failed to overcome the Parsons presumption that applied to plaintiff’s right knee injury.
Bariatric Surgery
With respect to plaintiff’s bariatric surgery, the Commission concluded: “When an employee suffers a compensable injury, ‘[m]edical compensation shall be provided by the employer.’ N.C. Gen. Stat. § 97-25(a) (2020). Medical compensation is defined as ‘medical, surgical, hospital, nursing, and rehabilitative services . . . and other treatment . . . as may reasonably be required to effect a cure or give relief and for such additional time as, in the judgment of the Commission, will tend to lessen the period of disability . . . .’ N.C. Gen. Stat. § 97-2(19) (2020) (emphasis added). . . . Both Dr. Mallico and Dr. Barrier opined that reduction of plaintiff’s BMI was necessary for plaintiff’s safety and to achieve an optimal outcome from the revision right total knee arthroplasty surgery prescribed to treat her compensable right knee injury. Therefore, subject to the provisions of N.C. Gen. Stat. § 97- 25.1, Plaintiff is entitled to payment of medical expenses incurred as a result of her bariatric surgery, as such surgery was medically necessary to assist Plaintiff achieve an optimal BMI to allow her to undergo the May 29, 2019 revision right total knee arthroplasty.” There is a direct line connecting the dots between plaintiff’s original compensable injury and the Commission’s award for bariatric surgery. Plaintiff’s work accident materially aggravated her preexisting right knee condition. This material aggravation in turn necessitated that plaintiff undergo right knee surgery. For plaintiff to undergo knee surgery, she had to lose weight. According to Dr. Eric Mallico, plaintiff could not lose weight fast enough due to her physical limitations for the knee surgery to be conducted safely and optimally without undergoing weight loss surgery. By connecting the dots, we can conclude that but for plaintiff’s need to have right knee surgery to treat her compensable injury, she would not have needed to undergo bariatric surgery. Therefore, while the existence of plaintiff’s weight problem was not directly related to her work accident, the need for bariatric surgery is directly related. Affirmed. Kluttz-Ellison v. Noah’s Playloft Preschool (Lawyers Weekly No. 011-110-22, 25 pp.) (Darren Jackson, J.) Appealed from the Industrial
Commission. David Shelby for plaintiff; Duane Jones and Lindsay Wikle for defendants. 2022-NCCOA-290
Domestic Relations Parent & Child – Abuse Adjudication – Doctor’s Testimony In her 2020 examination of minor, “Carol,” child medical examiner Dr. Esther Smith found a tissue tag that was not present in Carol’s 2013 child medical exam. This was some physical evidence to support Dr. Smith’s conclusion that Carol had been a victim of child sexual abuse. We affirm the trial court’s adjudication of Carol and “Ann” as abused, neglected and dependent juveniles and the court’s cessation of reunification efforts with the respondentFather. On cross-examination, Dr. Smith testified that a normal physical exam without the presence of the tissue tag would not have changed her diagnosis. This was inadmissible bolstering of Carol’s credibility. However, it was not prejudicial error for the trial court to allow this testimony. Father cannot now object to testimony that was first elicited by his own counsel’s questioning. Further, Dr. Smith subsequently reiterated that she nonetheless did rely on the physical evidence in reaching her diagnosis. In any event, this was a bench trial, and Father has not overcome the presumption that the trial court, acting as finder of fact, did not improperly consider Dr. Smith’s bolstering testimony. The trial court found that Dr. Smith’s child medical exams reports were admissible as statements for medical diagnosis under N.C. R. Evid. 803(4) and as business records under Rule 803(6). Father challenges only the trial court’s determination under Rule 803(4). Even if we determine that the reports do not satisfy our standards of admissibility under Rule 803(4), Father has failed to show that the reports lacked admissibility under Rule 803(6). Because at least one unchallenged ground for admissibility remans, we hold the trial court did not err in admitting the reports into evidence. Affirmed. In re A.W. (Lawyers Weekly No. 011-111-22, 16 pp.) (Jefferson Griffin, J.) Appealed from Guilford County District Court (Marcus Shields, J.) Mercedes Chut for petitioner; Mary McCullers Reece for respondent; Eimile Stokes Whelan and Daniel Peterson for guardian ad litem. 2022-NCCOA-282
Public Utilities Renewable Energy Program – RFP – Proposal Security – Refundable & Nonrefundable Securities The Competitive Procurement of Renewable Energy Program implemented by Duke Energy pursuant to Session Law 2017-192 could equitably treat bids from third-party market participants differently than bids from Duke affiliates. Although one subset of bids was charged a nonrefundable proposal security while another subset of bids was not, equitable treatment does not mean the exact same treatment. We defer to the Utilities Commission’s determination that this treatment was equitable. We affirm the Commission’s denial of appellant Stanly Solar’s motion for
OPINION DIGESTS / 21
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 May 9, 2022
the return of its $1 million proposal security. Because Stanly Solar was a late entrant into the program, it did not qualify for a refund of its security on the basis that its project would not be put into service until after 1 January 2021. The Commission concluded that charging a nonrefundable proposal security to third-party market participants (MPs) and not proposals that came from Duke-affiliated entities was reasonable. The interpretation of a statute by an agency created to administer that statute is traditionally accorded some deference. We believe the same deference is applicable to an agency’s determination that a statute was complied with. In this case, the Commission found that the delineation of treatment between third-party MP bids and Duke affiliated bids was reasonable. Stanly Solar argues this treatment was inequitable solely because one subset of bids was charged a nonrefundable proposal security and one subset of bids was not. Equitable treatment does not mean the exact same treatment. The Commission found the treatment of the different types of bids reasonable. We see no reason to disturb this decision and give the
Commission’s decision its due deference. Affirmed. State ex rel. Utilities Commission v. Stanly Solar, LLC (Lawyers Weekly No. 011-112-22, 17 pp.) (Fred Gore, J.) Appealed from the Utilities Commission. Dwight Allen, Britton Allen, Brady Allen, Jack Jirak, James Mills and Daniel Higgins for appellees; Benjamin Snowden for appellant. 2022-NCCOA-286
Insurance Personal Liability Coverage – Intentional Acts Exclusion – Gunshots Defendant’s personal liability insurance policy excludes coverage for intentional acts. During an altercation with defendant, Baron Thomas Cass removed himself and walked away. Defendant produced a handgun and fired multiple shots in the direction of Cass, some of which struck and killed him. When considering the intentional action of firing a pistol multiple times in the direction of another person, where injury is probable or certain, an intent to injure may be inferred as a matter of law. Consequently, defendant’s con-
duct falls within the policy’s intentional-act exclusion, and the insurer has no duty to defend or indemnify defendant in the underlying wrongful death lawsuit. We affirm judgment for the insurer. It is true that a declaratory judgment action to determine a duty to defend under an insurance policy requires interpretation of the written instrument. However, a court measures the facts as alleged in the pleadings to ascertain an insurer’s duty to defend. Accordingly, it was within the purview of the trial court under the Declaratory Judgment Act to measure the facts as alleged in the pleadings; specifically, what transpired during the shooting. Defendant produced a handgun and fired multiple shots in the direction of Cass, some of which struck and killed him. The parties’ policy does not contain a specific definition of “accident” so, for defendant’s actions to be construed as an accident, the resulting injury must not have been intentional or substantially certain to occur. The action of firing a pistol in the direction of another is conduct from which the actor should expect the probability or certainty of a result-
ing injury. As intent to injure may be inferred as a matter of law from an act that is substantially certain to result in injury, defendant’s action of firing a pistol multiple times in the direction of Cass was not an “accident.” Therefore, we hold that defendant’s conduct was an intentional act. As defendant’s act was intentional, reading the complaint side by side with the policy’s language, defendant’s conduct falls within the intentional-act exclusion. Therefore, we conclude as a matter of law that the plaintiff-insurer has no duty to defend defendant. if an insurer has no duty to defend, it has no duty to indemnify. Therefore, plaintiff also has no duty to indemnify defendant. Finally, defendant contends that because the complaint alleges different theories of recovery, including grossly negligent acts by defendant, it cannot be ascertained whether defendant acted with intent to injure Cass, and a finder of fact must resolve that uncertainty. We disagree. Under a declaratory judgment action, in addressing the duty to defend, the question is not whether some interpretation of the facts as alleged could possibly bring the injury within the coverage provided by
LAWYER TO LAWYER / Directory
Your business partner. Tough Times Require Trusted Lawyers
• All Chapters of Bankruptcy
Alternatives •• All Chapters to of Bankruptcies Bankruptcy Receivershipsto Bankruptcies •• Alternatives • Receiverships
Serving Eastern NC 252.633.1930 www.olivercheek.com
Helping People Is What We Do.
Mesothelioma & Lung Cancer Serious Personal Injury Tractor Trailer Collisions Workers’ Compensation Defective Medical Devices Harmful Drugs & Products Medical Malpractice
We are always grateful for referrals and value our co-counsel relationships. Call John Alan Jones or Forest Horne to discuss a possible relationship at (800) 662-1234. All inquiries held in the strictest confidence. MartinandJones.com 800.662.1234
Serving all of North Carolina with offices in Raleigh, Durham and Wilmington.
22 / OPINION DIGESTS the insurance policy; the question is, assuming the facts alleged as true, whether the insurance policy covers that injury. Assuming the alleged facts as true, defendant acted intentionally and there is no duty to defend nor duty to indemnify. Affirmed. North Carolina Farm Bureau Insurance Co. v. Hague (Lawyers Weekly No. 011-113-22, 11 pp.) (Jefferson Griffin, J.) Appealed from Wake County Superior Court (Bryan Collins, J.) William Lipscomb for plaintiff; Christina Clodfelter for defendant. 2022-NCCOA-291
Domestic Relations Child Custody – Attorney’s Fee Award – Judgment Lien – Unauthorized In this custody action, G.S. § 5013.6 allowed the trial court to award attorney’s fees to the intervenors, and its award was enforceable by contempt. However, since the award was made pursuant to § 50-13.6, the trial court lacked the authority to order that its award be paid out of a personal injury settlement that defendant expected to receive. We vacate the trial court’s denial of defendant’s motion under N.C. R. Civ. P. 60(b)(4).
Background
On 2 August 2019, the intervenors intervened in an ongoing custody dispute and moved for emergency and permanent custody of defendant’s minor child, CR. On 4 August 2019, defendant was seriously injured in a car accident. The trial court awarded temporary custody of CR to the intervenors. On 20 November 2019, the intervenors moved for an award of attorney’s fees. On 9 December 2019, the trial court awarded attorney’s fees to the intervenors and ordered that such fees be taken from the proceeds of defendant’s personal injury settlement if not paid by 31 January 2020. A year later, defendant moved for relief under Rule 60. The trial court denied the motion, and defendant appeals.
Discussion
Section 50-13.6 provides, “In an action or proceeding for the custody . . . of a minor child, . . . the [trial] court may in its discretion order payment of reasonable attorney’s fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit.” § 5013.6 (2019). The trial court theorized it had the authority to order defendant to pay intervenor’s attorney’s fees from the proceeds of his personal injury settlement because the 9 December 2019 order for attorney’s fees was an order, not a judgment. Defendant concedes that § 50-13.6 authorizes the trial court to enter an order for an award of reasonable attorney’s fees. However, he contends the trial court’s 9 December 2019 order was an order in name only. “In the case of attorney fees authorized by N.C.G.S. § 50- 13.6, the court is given power to ‘order payment of reasonable attorney’s fees to an interested party,’ which makes the award of attorney’s fees an order of the court, enforceable by contempt for disobedience, rather than a civil judgment.” Smith v. Price, 315 N.C. 523, 340 S.E.2d 408 (1986). In this case, the order for attor-
ney’s fees is enforceable by the trial court’s contempt powers, and it does not tax the costs of the action against defendant. Critically, however, it provides an additional remedy: it creates a lien on defendant’s personal injury proceeds if payment is not received by 31 January 2020. Under § 50- 13.6, the trial court may enter an order for reasonable attorney’s fees. It is not authorized to enter a civil judgment taxing the costs of attorney’s fees to a fund that is unrelated to the subject matter of the litigation. Thus, pursuant to Rule 60(b)(4), the trial court did not have authority to render the judgment entered, and a misapprehension of law is tantamount to abuse of discretion. Vacated and remanded. Roark v. Yandle (Lawyers Weekly No. 011-114-22, 13 pp.) (Fred Gore, J.) Appealed from Mecklenburg County District Court (Christy Mann, J.) Paul Tharp for defendant; David McCleary for intervenors. 2022-NCCOA-292
Criminal Practice MAR – Ineffective Assistance Claim – Evidentiary Hearing Required – Alibi Witness Where (1) an alibi witness said defendant was with him the morning of the armed robbery, (2) defendant’s trial counsel does not recall whether she ever interviewed the alibi witness, and (3) the alibi witness says trial counsel never interviewed him, defendant was entitled to an evidentiary hearing on his claim of ineffective assistance of counsel. We affirm in part and vacate in part the trial court’s order denying defendant’s motion for appropriate relief (MAR).
Witness Statement
Defendant was convicted of robbing his second cousin, Hardy Ballard, at gunpoint. In his MAR, defendant asserted, inter alia, that the state suppressed a statement made to police by Hardy’s son, Kashon, in which Kashon may not have identified defendant as the robber, but then allowed Kashon to testify at trial that he recognized defendant as the robber. The trial court correctly concluded that Kashon’s statement was not material. Even without the statement, defendant’s trial counsel was able to reveal inconsistencies in Kashon’s testimony with regard to his identification of defendant as the robber. Moreover, trial counsel presented defendant’s prior counsel, who testified that Kashon was unable to identify defendant as the robber during the probable cause hearing. We do not believe that, had trial counsel impeached Kashon with the original statement, there would have been a reasonable probability of a different result. In any event, Hardy immediately and unwaveringly identified defendant as the robber. Additionally, the record does not support defendant’s contention that the state knew Kashon’s testimony was false. The mere fact that inconsistent testimony was presented does not suggest that such testimony was knowingly and demonstrably false.
Ineffective Assistance
Although there are no North Carolina cases precisely on point, other courts have concluded that an attorney’s representation was deficient
N O R T H C A R O L I N A L A W Y E R S W E E K LY I M ay 9, 2022
for failing to contact and interview prospective alibi witnesses. Because of the significance of a criminal defendant’s alibi defense, we are persuaded that a trial counsel’s failure to investigate known alibi witnesses can constitute deficient performance. Potential alibi witness, Khalief Ballard – defendant’s son – corroborated defendant’s alibi and claimed to have been with him the morning of the crime. In her affidavit, trial counsel states that she “do[es] not recall” whether she interviewed Khalief, although she concedes he was not on her witness list. In his sworn statement, Khalief claims that he “was never contacted or interviewed” by trial counsel about his father’s case. Nothing in the record indicates why counsel may have chosen not to interview Khalief, and, in fact, we do not know whether trial counsel interviewed him at all. Because whether a defendant’s counsel made a particular strategic decision remains a question of fact, and is not something which can be hypothesized, we cannot say with certainty whether counsel strategically decided not to investigate Khalief as an alibi witness, and this factual issue can only be appropriately resolved at an evidentiary hearing.
Gatekeeper Order
G.S. § 15A-1419(a) does not allow trial courts to enter “gatekeeper” orders that preclude defendants from filing any future MAR, because the determination regarding the merits of any future MAR must be decided based upon that motion. Gatekeeper orders are normally entered only where a defendant has previously asserted numerous frivolous claims. Because this is not a case where defendant has filed many frivolous MARs asserting the same claims, we vacate the erroneous gatekeeper portion of the trial court’s order. Affirmed in part, vacated in part and remanded.
Concurrence
(Griffin, J.) I write separately to express my concerns with our Supreme Court’s precedent binding this court to hold that defendant is entitled to an evidentiary hearing on his ineffective assistance claim. The standard employed by the majority effectively guarantees any defendant an MAR evidentiary hearing when the defendant merely alleges “facts which, if proven true, would entitle him to relief.” State v. Allen, 378 N.C. 286, 2021-NCSC-88. The standard used in Allen is not supported anywhere in our General Statutes or caselaw. Our legislature, in writing the unambiguous G.S. § 15A-1420(c), provided MAR defendants with sufficient protections as the statute is written. State v. Ballard (Lawyers Weekly No. 011-115-22, 26 pp.) (Darren Jackson, J.) (Jefferson Griffin, J., concurring) (Hunter Murphy, J., concurring in part without separate opinion) Appealed from Brunswick County Superior Court (Stanley Carmical, J.) Zachary Dunn for the state; Warren Hynson for defendant. 2022-NCCOA-294
Criminal Practice Search & Seizure – Traffic Stop – No Unlawful Extension Not only was defendant’s vehicle tag altered, but a plainclothes officer had also seen defendant engage in a hand-to-hand transaction in an area
known for drug trafficking. While officers were following defendant’s car, they saw him lean to the right and then straighten up as if tucking something under his body; after being stopped, defendant consented to a search of his car; and, while officers were patting defendant down, he clenched his buttocks. Officers had not unlawfully extended the traffic stop when an officer asked defendant if he was “tucking something” and asked defendant if was going to make the officer “go fishing,” resulting in defendant reaching into his pants and pulling out a baggie containing 0.6 grams of suspected cocaine from his buttocks. We affirm the trial court’s denial of defendant’s motion to suppress. As defendant’s detention was reasonably related in scope to the circumstances which justified the interference in the first place and the investigative means employed by the officers did not last longer than was necessary to effectuate the purpose of the stop, the trial court did not err by concluding that the officers “did not unlawfully extend the scope or duration of the traffic stop by searching Defendant’s car and, thus, did not violate any of Defendant’s Fourth Amendment rights.” State v. Jordan (Lawyers Weekly No. 012-158-22, 13 pp.) (Allegra Collins, J.) Appealed from Mecklenburg County Superior Court (Casey Viser & Daniel Kuehnert, JJ.) Joseph Hyde for the state; Christopher Brook for defendant. 2022-NCCOA-249
Criminal Practice Indecent Liberties & Sexual Offense – Inconsistent Verdicts The fact that defendant was found not guilty of committing a sexual offense with a child by fellatio did not prevent the same jury from finding him guilty of indecent liberties based on fellatio. A jury is not required to be consistent, and mere inconsistency will not invalidate a verdict. We find no error in defendant’s convictions arising from his sexual assault of a nine-year-old boy. The state presented sufficient evidence to prove sexual offense with a child by analingus. For instance, two witnesses testified that nine-year-old “Joe” had described how defendant “licked his butt,” without any objection or request for a limiting instruction from defendant. Therefore, the jury was free to consider Joe’s statement as substantive evidence. In addition, defendant’s DNA was found on the swab taken from Joe’s anus. It is true that it was not determined whether the DNA was from defendant’s saliva. Notwithstanding, based on the evidence as a whole when viewed in the light most favorable to the state, a reasonable inference of defendant’s guilt of analingus may be drawn from the circumstances. State v. Lewis (Lawyers Weekly No. 012-159-22, 6 pp.) (Chris Dillon, J.) Appealed from New Hanover County Superior Court (Richard Harrell, J.) Catherine Laney for the state; Mark Montgomery for defendant. 2022-NCCOA-250
Criminal Practice Armed Robbery – Jury Instructions – Common Law Robbery – Implement Used Even though defense counsel’s
OPINION DIGESTS / 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 May 9, 2022
cross-examination of the victim questioned the victim’s ability to tell whether defendant was using “an actual handgun and not a BB gun,” and even though counsel pointed out that the victim had said the implement was small enough to be covered completely by defendant’s hand that that he could only make out that it was dark in color, the crossexamination of the victim did not entitle defendant to a jury instruction on the lesser included offense of common law robbery. “When a witness testified that he was robbed by use of a firearm or other dangerous weapon, his admission on crossexamination that he could not positively say it was a gun or dangerous weapon is without probative value.” State v. Thompson, 297 N.C. 285, 254 S.E.2d 526 (1979). We find no error in defendant’s conviction of robbery with a dangerous weapon. We vacate the civil judgment against defendant for attorney’s fees and remand. Because the trial court may not enter a civil judgment for attorneys’ fees against a convicted defendant without providing them notice and an opportunity to be heard, and because there is no evidence defendant was provided notice and an opportunity to be heard, the trial court erred in entering a civil judgment for attorneys’ fees against defendant. State v. Point (Lawyers Weekly No. 012-160-22, 11 pp.) (Jeffery Carpenter, J.) Appealed from New Hanover County Superior Court (Kent Harrell, J.) Sandra Payne Hagood for defendant; Brent Kiziah for the state. 2022-NCCOA-251
Criminal Practice Rape of a Child – Rule 404(b) Evidence – Prior Girlfriend’s Daughter Even though the perpetrator’s identity was not at issue, the trial court could nevertheless admit evidence that defendant had sexually assaulted the daughter of a prior girlfriend ten years before he assaulted the victim in this case – his stepdaughter – since evidence of other offenses is admissible under N.C. R. Evid. 404(b) so long as it is relevant to any fact or issue other than the character of the accused. We find no error in defendant’s convictions for three counts of rape of a child by an adult, two counts of sex offense with a child by an adult, and three counts of indecent liberties with a child. Evidence showing modus operandi, intent, motive and common scheme/plan was admissible to show defendant acted willfully and purposefully in taking indecent liberties with his stepdaughter, “L.P.” The trial court made extensive findings regarding the similarities between the two assaults, including: Defendant was in a close, livein relationship with the mothers of the two victims; defendant ensured access to the victims through punishments and restrictions on their time outside or with friends; defendant had time alone with the victims while other household members were at work; and defendant initiated contact with the victims through “play-fighting” and touching their breasts which eventually transmuted into forced sexual intercourse. Therefore, while these similarities may not rise to the level of unique or bizarre, the similarities are sufficient to support the
state’s theory of modus operandi in this case. Thus, the trial court did not err by admitting the 404(b) evidence because the two sexual assaults were sufficiently similar to allow for admission. Although there was a ten-year gap between the reported sexual assaults, there is no evidence or showing that during that time frame defendant had a live-in relationship with a woman who had a young daughter in the home. However, when defendant began a relationship with L.P.’s mother, the evidence reflected he began building the same type of relationship with the woman’s daughter. Indeed, the similarity of the acts despite the time period works to support the state’s theory of a common scheme or plan because as soon as defendant re-gained access to a victim, he engaged in the same pattern of behavior. Therefore, the evidence supports the trial court’s findings, which in turn support its conclusions regarding the admissibility of the prior sexual assault for the purpose of showing a common scheme or plan under Rule 404(b). After completing its analysis regarding admissibility under Rule 404(b) the trial court undertook the balancing test under N.C. R. Evid. 403 and found that the probative value of the evidence substantially outweighed the danger of unfair prejudice. Thus, the evidence of the prior sexual assaults was properly admitted. No error. State v. Powell (Lawyers Weekly No. 012-161-22, 13 pp.) (Toby Hampson, J.) Appealed from Durham County Superior Court (James Hardin, J.) Erin Gibbs for the state; James Glover for defendant. 2022-NCCOA-252
Criminal Practice Post-Conviction DNA Testing – Materiality – Lesser Included Offense – Assault Defendant contends that there was insufficient evidence that he used a knife during a bar fight, such that DNA testing of the knife (to show the absence of the victims’ blood) would have led to his conviction of one of the lesser included offenses of assault with a deadly weapon inflicting serious injury. Despite the fact that the two victims never saw the knife that cut them as they were trying to subdue defendant, eyewitnesses testified that they saw defendant with the knife either before or during the altercation. Although the knife may have had a partial fingerprint belonging to someone besides defendant, this evidence is not proof of defendant’s innocence as to the conviction of assault with a deadly weapon inflicting serious injury. Defendant failed to show that, had DNA evidence been disclosed to the defense, there is a reasonably probability that the result of the proceeding would have been different. We affirm the superior court’s denial of defendant’s motion for postconviction DNA testing. Defendant is undisputedly the perpetrator of the assaults. He nevertheless argues he did not use a knife; hence, his convictions for assault with a deadly weapon inflicting serious injury upon a person cannot stand. He is attempting to use the requested biological evidence to show an absence of the victims’ blood on the knife. G.S.
§ 15A-269 is not applicable for such uses. The jury was instructed on two lesser-included offenses of assault with a deadly weapon inflicting serious injury, as requested by defense counsel: assault inflicting serious injury and simple assault. The jury weighed the evidence – including a detective’s testimony which revealed defendant’s fingerprints could not be traced to the partial print on the knife as well as eyewitness testimony indicating defendant possessed a knife – and determined the credibility of the witnesses. State v. Trull (Lawyers Weekly No. 012-162-22, 20 pp.) (Jeffery Carpenter, J.) Appealed from Cabarrus County Superior Court (Martin McGee, J.) Benjamin Szany for the state; Aaron Thomas Johnson for defendant. 2022-NCCOA-253
The only service the defendantlimited liability company has received came in the form of an expired summons, meaning the action was discontinued as to the LLC. However, the LLC is a necessary party in this derivative action. To avoid more disruption and delay in this case, plaintiffs are ordered to obtain and serve summons on the LLC by 5 May 2022. The court denies defendants’ motion to dismiss. In theory, the date the action is deemed to have commenced might implicate the statute of limitations, but that seems unlikely given that the LLC has no claims against it. Wright v. Lorusso (Lawyers Weekly No. 020-018-22, 5 pp.) (Adam Conrad, J.) Wtacy Miller and Matthew Van Horn for plaintiffs; Leonard Kornberg and Sara Higgins for defendants. 2022 NCBC 18
The weight of authority is that reserve information is generally not discoverable in coverage cases, which turn largely on an interpretation of the language of the policy. While there are many decisions regarding the discoverability of reserves from other jurisdictions, the court is aware of only one reported decision from this state’s courts. See Wachovia Bank, N.A. v. Clean River Corp., 178 N.C. App. 528 (2006). Wachovia Bank establishes that reserves are not categorically off limits in discovery as long as they are not shielded by privilege or qualified immunity. However, Wachovia Bank does not address the relevance of reserve information where, as here, bad faith and misrepresentation claims are not alleged. At this point, the court observes only that the claims and counterclaims alleged in this coverage case do not include a claim for bad faith, and well-reasoned authority holds that reserve information is generally not relevant to, and therefore not discoverable in, first-party coverage litigation. Coupling these facts with the fact that the insurers were required by statute to create the reserve information, and with the confidential, proprietary, and varying nature of their reserve philosophies, the court is disinclined to subject the insurers’ reserves to scrutiny absent a clearer showing that such information meets even the less demanding standard of relevance necessary for purposes of discovery. Motion denied. Aspen Specialty Insurance Co. v. Nucor Corp. (Lawyers Weekly No 020-019-22, 16 pp.) (Julianna Theall Earp, J.) David Levy, Rob Wilson, David Heiss and Peter Kanaris for plaintiffs; Jonathan Gilmartin, Scott Tyler, Harold Flanagan, Meghan Grant, Alice Duplechain, Thomas Flanagan, Camille Gauthier, Kimberly Kirk, Robert Santoro and Aidan McCormack for defendants. 2022 NCBC 19
Insurance
Taxation
Commercial – Civil Practice – Discovery – Reserve Information – Relevance
Large Individual Income Tax Deficiency – ‘By Any Means’ – Insufficient Documentation of Deductions
The defendant-insureds suffered an equipment breakdown and related losses, and their insurers seek a declaratory judgment as to coverage. Since this case does not involve fraud, the insurers’ reserves are not relevant and therefore are not discoverable. The court denies defendants’ motion to discover the insurers’ reserves. There is no real disagreement among the state and federal courts that have considered the issue that for reserve information to be discoverable, it must be both (a) relevant to the litigation and (b) not protected from discovery by either the attorneyclient privilege or the work product doctrine. Only relevancy is at issue here. It is folly to generalize about the meaning of a particular reserve given the various inputs and the range of philosophies that could have been used to develop it. Instead, each individual insurer’s inputs into and process for setting reserves must be examined on a case-by-case basis before conclusions can be fairly reached about that entity’s decision-making. Consequently, production of an insurer’s reserve information on a particular claim is only the beginning of the inquiry with respect to the relevance of the information.
In its decision reversing the imposition of a penalty for respondent’s large (64 percent) understatement of her income, the Office of Administrative Hearings drew a distinction between improper deductions and deductions that were insufficiently documented. However, G.S. § 105-236(a) (5)(b) says that if an individual “taxpayer understates taxable income, by any means, by an amount equal to twenty-five percent or more of gross income, the Secretary shall assess a penalty equal to twenty-five percent of the deficiency.” The plain meaning of the statute supports petitioner’s imposition of a 25 percent penalty on respondent. The OAH’s decision in favor of the respondent-taxpayer is reversed. Whether respondent acted innocently or with an improper motive, her claiming deductions and then failing to substantiate them is undoubtedly a “means” of understating her taxable income, subjecting her to the penalty provided for under § 105236(a)(5)(b). N.C. Department of Revenue v. Clifton (Lawyers Weekly No. 020020-22, 15 pp.) (Louis Bledsoe, C.J.) Ashley Hodges Morgan for petitioner; Greta Ann Clifton, pro se. 2022 NCBC 20
Civil Practice Late-Served Summons – Corporate – Derivative Action
Don’t miss out Join us online!
Take advantage of the resources available online at nclawyersweekly.com Including: • The latest legal news • Immediate access to the digital edition of the paper • Verdict & settlements, court opinion digests, andfull-text opinions A digital access account is included with your subscription to North Carolina Lawyers Weekly. Register your email to get full, behind-the-paywall access at nclawyersweekly.com
If you need assistance accessing your account contact customer service at 1-877-615-9536 or email service@bridgetowermedia.com