North Carolina Lawyers Weekly May 23, 2022

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Enhancement harmless where court would’ve reached same result ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com

last year. Berger noted in the messages that despite the GOP’s 10-5 Court of Appeals majority, a former Democrat (now unaffiliated) won the job by an 8-7 vote after Stroud and two other Republican judges voted for him. Stroud “shut out qualified republicans, including one of my former clerks, who also worked with 2 other GOP judges,” Berger wrote to the other individual, who had asked why Berger was endorsing Freshwater Smith. “The dems got their clerk of

Even if a district court erred by increasing a defendant’s offense level based on the possession of a firearm “in connection with” another felony offense, the error is harmless where the court would have reached the same result had it sided with the defendant on the sentencing guideline issue, the 4th U.S. Circuit Court of Appeals has ruled. Robert Cisson pleaded guilty in the U.S. District Court for the District of South Carolina to the possession of a firearm and ammunition by a convicted felon after he used counterfeit bills to purchase a 9mm pistol in October 2016. Upon his plea, prosecutors dismissed a charge of passing counterfeit money. Cisson was sentenced to 100 months in prison and three years’ supervised release. He appealed the sentence to the 4th Circuit on an issue not considered here, and on remand to district court a probation officer applied in his amended presentence report a sentencing enhancement advising the district court to increase, pursuant to United States Sentencing Guidelines, Cisson’s offense level by four if he “used or possessed any firearm or ammunition in connection with another felony offense.” The officer calculated a total offense level of 21 and a criminal history category of V. Cisson

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See 4th Circuit Page 6 ►

Decorum in doubt North Carolina Supreme Court Justice Phil Berger Jr. Photo from nccourts.gov

Facebook messages, contributions raise questions of impropriety ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com Judges and justices of North Carolina’s courts are sworn to be independent of partisan politics and to conduct themselves in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Some are saying state Supreme Court Justice Phil Berger Jr. is doing neither. In recent social media messages—apparent private Facebook messages to a Caldwell County resident that have been publicly circulated—

Berger offered a “cliffs notes” version of why he supported longtime prosecutor and District Court Judge Beth Freshwater Smith over incumbent Chief Judge Donna Stroud for a seat on the state’s Court of Appeals: Freshwater Smith was endorsed by law enforcement, Grass Roots North Carolina, and Republican appeals court judges Jefferson Griffin, Jeffery Carpenter, and Richard Dietz. But what Berger called a lack of leadership from Stroud apparently stems, in part, from her unwillingness to help usher in one of his former law clerks as clerk for the Court of Appeals when the position opened

Right to remain silent for Industrial Commission ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com A full North Carolina Industrial Commission may reconsider evidence before the deputy commissioner, receive additional evidence and amend the deputy commissioner’s award where it finds “good ground” to do so, the state’s Court of Appeals has held in a case of first impression. In this matter, the full commission overturned the deputy commissioner’s award of workers’ compensation benefits to a defendant who argued on appeal that the full commission’s opinion did not expressly state that it found any good grounds

to reconsider the evidence and alter the award or expressly state what it determined those grounds to be. The court unanimously rejected the argument, however, holding that “consistent with how our case law handles discretionary ‘good cause’ analyses in other contexts,” the commission need not make those express statements. “When the Commission’s opinion and award is silent on this issue, we will presume the Commission found the necessary good grounds if there is a basis in the record to support that finding in the Commission’s sound discretion,” Judge Richard Dietz wrote for the court.

Not sure what happened

Defendant Gary Forte had worked for Goodyear Tire for nearly a decade when, in June 2015, he says he twisted his left leg on the job. Over the next couple of weeks, he visited urgent care and an orthopedic specialist, complaining of knee pain but denying any event that might have caused an injury. That month, a car accident sent Forte back to the orthopedic specialist where he again failed to recall “any acute injury or trauma” that might be responsible for his knee pain. The specialist S e e Wo r k e r s Co m p P a g e 5 ►

INSIDE BAR DISCIPLINE ROUNDUP

VERDICTS & SETTLEMENTS

COMMENTARY

Attorneys in Chapel Hill, Durham and Matthews reprimanded or censured.

Pool victim settles for $4.1M

Professionalism and civility are the foundation of the legal profession

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I M ay 23, 2022

NEWS BRIEFS Advocacy center names new CEO Former Mecklenburg County public defender Toussaint Romain has been named the new CEO for the Charlotte Center for Legal Advocacy, an agency that provides legal representation to those who are unable to afford it. Romain, the center’s first leader of color, most recently served as the deputy general counsel for Appalachian State University. He has conducted trainings and taught courses in constitutional law and mass incarceration and served as a national speaker presenting on issues such as leadership, systemic racism and sexism, and criminal justice reform to legal professionals, systems leaders, and corporate executives, according to a news release. Before graduating from law school

in 2007, Romain worked for federal prosecutors, federal and state judges, large law firms, the National Institute of Justice, and Sen. John Edwards. John Grupp, president of the center’s board of directors, said that Romain is the right person to “expand the reach and impact of the Advocacy Center’s mission and vision to pursue justice for those in need.” Romain said that he asks himself one question regarding how to best serve vulnerable Charlotteans: How do we get this done? “I have been offered a once in a lifetime opportunity to join Charlotte Center for Legal Advocacy and fight for access to justice and utilize our legal system as a tool for economic opportunity and upward mobility for all,” Romain said in a statement. Heath Hamacher

LAWYERS IN THE NEWS Megan McGee Stacy and Laura Gregory have joined Hall Booth Smith in Charlotte. Stacy is Of Counsel and focuses her practice on commercial contracts and business torts, construction, general liability, medical malpractice, premises liability, products liability, professional liability, and transportation matters. Gregory joins the firm as an associate and focuses her practice on general liability, medical malpractice, labor and employment, and workers’ compensation matters. Troy Shelton has been elevated to partner at Fox Rothschild. Shelton works out of the firm’s Raleigh office and has a wide variety of trial and appellate experience, including class actions, antitrust, employment disputes, land use litigation,

and family law cases. Shelton also serves as a class action consultant to attorneys inside and outside the firm, for both plaintiffs and defendants. Brandon Massengill has joined Womble Bond Dickinson as of counsel and will be working in the firm’s Raleigh office on its Software and Electrical Engineering team. Massengill will focus on drafting and prosecuting patents, opinions, and counseling in several fields, including electrical, mechanical, and civil engineering; software technologies; and medical devices. Nicholas J. D’Auria has joined The Van Winkle Law Firm’s trusts, estates, and elder law practice group. D’Auria will work from the firm’s Hendersonville office.

BAR DISCIPLINE

ROUNDUP Chapel Hill attorney reprimanded (May 2022) Attorney: Michelle L. English Location: Chapel Hill Bar membership: Member since 2011 Disciplinary action: Reprimanded on April 19 Background: English undertook to serve as sponsoring local lawyer for Donnya Banks, an Illinois lawyer who undertook to represent plaintiffs in multiple claims in Wake County Superior Court and before the N.C. Industrial Commission (NCIC) arising from a prison riot (collec tively “ the ac tions” ). The Disciplinary Hearing Commission found that English did not educate herself about the responsibilities of a lawyer who sponsors pro hac vice admission. Pursuant to N.C. Gen. Stat. § 84-4.1(5), as sponsoring attorney English was required to appear at all court proceedings in all cases and required to ensure that the pro hac vice requirements, including filing the registration statements and paying required fees, were satisfied. English and Banks filed pleadings in the Wake County actions alleging negligence by the state. Jurisdiction over such claims is exclusively in the Industrial Commission. English did not initially appear at hearings in any of the proceedings. Previous Discipline: none Matthews attorney censured (May 2022) Attorney: John C. Snyder III Location: Matthews Bar membership: Member since 2001 Disciplinary action: Censured on February 16 Background: Snyder represented V.K. in a lawsuit brought by his former employer for allegedly violating a noncompete agreement. One week after the plaintiff

took a voluntary dismissal with prejudice of the case against V.K., Snyder filed an Answer and Motion for Summary Judgment. The DHC found Snyder violated Rule 3.1 in making these filings because they had no basis in law or fact. Snyder then billed V.K. for the work in preparing and filing the unnecessary pleadings and provided an inadequate billing statement to him in violation of R u l e 1. 5 ( a ) . T h r o u g h o u t t h e representation, Snyder failed to keep V.K. reasonably informed about the status of the matter in violation of Rule 1.4(a)(3) and failed to comply promptly with reasonable requests for information in violation of Rule 1.4(a)(4). Snyder also violated Rule 8.1(b) by failing to respond to the local grievance committee after being notified of V.K.’s grievance. Previous Discipline: none Durham attorney reprimanded (May 2022) Attorney: Charles M. Kunz Location: Durham Bar membership: Member since 2016 Disciplinary action: Reprimanded on February 16 Background: In December 2019, J.S. retained Kunz to file a new I-130 immigration petition for S.P. The petition Kunz filed omitted various pieces of necessar y information, including information about S.P.’s current and former spouses and when she was in the United States. The petition Kunz filed did not reflect that J.S. had previously filed a petition for S.P. and did not contain any of the supporting documents J.S. had provided for submission with the petition. Kunz’s failure to ensure that the petition was complete and accurate and that the supporting documentation was attached thereto violated Rule 1.3. Previous Discipline: none

IP Frontiers: Checking in on expungement and reexamination: Early common pitfalls ■ BY THOMAS SICA BridgeTower Media Newswires ROCHESTER, NY — Since Dec. 18, the United States Patent and Trademark Office has accepted two new types of ex parte proceedings to be filed for trademark purposes: expungement and reexamination. When these new proceedings were first proposed and announced, many practitioners were curious about how effective these would be in practice. Now, a few months have passed since commencement of these proceedings; thus, we have an early look at how these are being handled by the USPTO. To start: what is expungement and reexamination? The Trademark Office has long recognized that many registered trademarks are unfortunately not actually being used in commerce. Before the Trademark Office registers any mark, the trademark applicant must provide a specimen (i.e., an example) that the mark is being used in commerce on the goods and/or services that are listed in the application. While the specimen process is intended to weed out any marks that are not actually being used, several marks still slip through the cracks through the use of fraudulent specimens. The USPTO intended expunge-

ment and reexamination proceedings to act as a new way to remove fraudulently obtained trademark registrations from the rolls of the Trademark Office. Both proceedings commence with a petition to the Director of Trademarks claiming that an existing registration should be cancelled, in whole or in part. For an expungement proceeding, the basis for the petition is that the registered trademark was never used in commerce by the registrant for all or some of the identified goods and/or services listed in the registration. For reexamination proceedings, the basis for the petition is that the registered trademark was not in use in commerce in connection with some or all of the goods and/or services listed in the registration at the time use was alleged (i.e., at the time the application was filed in a use-based application, or at the time the statement of use was filed in an intent-to-use application). Both petitions must contain certain items such as a required fee, the basis for the petition, the name and address of the petitioner, and the specific goods and/or services that the petitioner challenges. Additionally, the petition for expungement or reexamination must further include a verified statement from the petitioner outlining the investigation conducted along with the petitioner’s basis for its belief

that the trademark was not in use in commerce as of the relevant date and supporting documentary evidence. However, the proceeding will not be instituted automatically. Once the petition is submitted, the Director of Trademarks must determine whether to institute the expungement or reexamination proceeding. If the director determines that the petitioner made a prima facie case that the mark was not used at the relevant time, then the director will institute the proceeding and issue an office action to the registrant. After which, the registrant will have an opportunity to respond, similar to how preregistration office actions are handled at the Trademark Office. The USPTO, on their website at https://www.uspto.gov/trademarks/ apply/expungement-and-reexamination-petitions-received, has been keeping a list of expungement and reexamination proceedings filed at the office. Between Dec. 21 and April 2, 64 petitions for expungement or reexamination have been filed. As this process is still new, none of these actions have proceeded far enough yet to actually remove any trademark registrations from the rolls. But the director has made a decision on whether to institute 29 of these petitions thus far. To break it down, the director has issued institution or-

ders for 10 expungement proceedings and six reexamination proceedings, but the director declined to institute seven expungement proceedings and six reexamination proceedings. That means that petitioners are thus far only 55% successful on getting the proceedings instituted. The director has not been rubber-stamping these petitions; the petitioner truly must make out a prima facie case that the trademark was not being used in order for the proceeding to even reach the registrant. Among the failed petitions, there exists some commonality in the reasons that the director has declined to institute the expungement or reexamination proceeding. In other words, many petitioners are running into the same issues. Thus, here are three common pitfalls that petitioners are facing in attempting to institute these ex parte proceedings: No Index of Evidence One of the many requirements for a petition for expungement or reexamination is a “clear and legible copy of all documentary evidence supporting a prima facie case of nonuse of the mark in commerce and an itemized index of such evidence.” 37 C.F.R. §2.91(c)(9). While most petitioners thus far have submitted documenSee Page 3 ►

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tary evidence, many have neglected to provide an itemized index of that evidence. The index of evidence acts similar to a table of contents; it exists as a way for the director to easily navigate through the evidence provided. The itemized index is relatively simple but must not be forgotten when preparing these petitions. Insufficient Investigations “A petitioner must make a bona fide attempt to determine if the registered mark was not in use in commerce or never in use in commerce on or in connection with the goods and/ or services … by conducting a reasonable investigation.” 37 C.F.R. §2.91(d). Thus far, many petitions have been rejected based upon the director’s determination that the petitioner’s investigation was not reasonable or comprehensive enough. Some peti-

tions have only submitted testimonial evidence rather than documentary evidence; other petitions have merely submitted screenshots of the registrant’s webpages in order to establish non-use. These types of evidence alone will not establish a prima facie case for non-use sufficient to institute an expungement or reexamination proceeding. More evidence is required such as State and Federal trademark records, website evidence outside of the registrant’s website, or attempts to contact the registrant or purchase the relevant goods and/or services, among other acceptable evidence. The evidence must be enough to establish a prima facie case that the mark was not used at the relevant time; a comprehensive investigation is necessary. Evidence not Tailored to the Relevant Date Neither expungement nor reexamination proceedings are concerned

merely with the current use, or nonuse, of the trademark at issue. A petition for expungement asserts that the trademark has never been used in commerce; a petition for reexamination asserts that the trademark was not used as of the date that the registrant alleged use to the Trademark Office. Thus far, some petitioners have failed to submit evidence showing that the mark was not in use as of the relevant date. Petitioners must not only submit evidence about the current non-use of the trademark, but must submit evidence that the mark was not used at any time (in an expungement proceeding) or at the time that use was alleged (in a reexamination proceeding). The mere submission of recent evidence of non-use will not establish a prima facie case for expungement or reexamination, and the proceeding will not be instituted. While expungement and reexami-

nation proceedings may still be more convenient for petitioners than attempting to cancel a trademark at the Trademark Trial and Appeals Board, potential petitioners still must make a significant effort to follow the instructions provided by the USPTO, conduct a reasonable investigation and provide sufficient evidence in order for the director to institute the proceeding. We now know that merely instituting expungement or reexamination proceedings may be a significant hurdle to overcome; it still remains to be seen how successful these petitions will be once they are instituted. Thomas Sica is an associate with the law firm of Heslin Rothenberg Farley & Mesiti P.C. He can be reached at (518) 452-5600 or thomas.sica@hrfmlaw.com.

How to successfully navigate the uncertainty of waiting ■ BY TRACEY MEYERS BridgeTower Media Newswires For lawyers, having to navigate uncertainty usually starts with the first reading assignment in law school. Uncertainty grows as students wait for their grades to come out after their first set of final exams and every round of finals thereafter, until the monumental bar exam — and it persists into practice. Students often agonize about whether they passed or failed and can create serious doubt over whether they are cut out to be lawyers. The bar exam presents one of the most stressful waiting periods as students must wait anywhere from six to 12 weeks to find out if they can practice law, get the job they have been dreaming of, move to a preferred city, and pay their rent. After passing the bar, lawyers encounter many other stressful waiting periods related to their employment (the job search, performance evaluations, partner track), and legal proceedings that have inherent waiting periods built in (waiting for discovery, waiting for the opposing side to respond, waiting for a verdict). In addition, lawyers must reassure their anxious clients as they await the outcome of their case. While it may be a routine part of the job, for many lawyers waiting can create a heightened sense of anxiety and distress and can lead to burnout and professional dissatisfaction. Of course, not just lawyers struggle with awaiting uncertain news. Anyone who is waiting for test results from a biopsy or waiting to hear if there are going to be layoffs at work knows how distressing it can feel to have to wait. Psychologists have explored why awaiting uncertain news creates so much anxiety. James Shepperd, a social psychologist from the University of Florida, has studied how individuals respond to waiting and receiving challenging information. His research has shown a predictable pattern of thoughts leading up to the receipt of potentially bad news. Specifically, people tend to display more optimism in the beginning of the waiting period but tend to lower their expectations and shift to a more pessimistic view at the “moment of truth” to protect themselves from disappointment in the face of potentially bad or even life-threatening news. This protection — called “bracing”

— is designed to reduce being caught off guard by expected negative news. In other words, if I predict that I am going to fail the bar exam right before I receive my results, I won’t be surprised and can therefore plan accordingly. Bracing relates to shifting expectations but falls short of helping people manage the anxiety that inevitably occurs when encountering difficult waiting periods. Bracing focuses solely on preparing for bad news, but people can manage their anxiety by assuming the best possible outcome. Kate Sweeny, a professor of psychology at the University of California-Riverside, has studied extensively how people cope most effectively with intense uncertainty. She developed the “uncertainty navigation model” as a framework to understand the strategies that people use (including thoughts, feelings and behaviors) to get through intense waiting periods. She studied different populations, including law students waiting for bar exam results and women who underwent breast biopsies and were waiting for these results. Research on health issues has demonstrated that maintaining an optimistic view, even under difficult situations like waiting for test results, has several health benefits including increased immune functioning, reduced risk for hypertension, and faster recovery from illness. Sweeny’s study in 2014 on law students who prepared for the California state bar found those students who were optimistic about the results had lower levels of anxiety and rumination. It can be very difficult at first to have an optimistic view, especially for lawyers who are trained to look for the potential negative outcomes as part of their jobs or clients who have had a lot of turmoil in their lives. Therefore, it can take practice to believe that positive outcomes are even a possibility when waiting for news. To move toward this optimistic way of thinking, it can be helpful to rehearse positive outcomes through journaling, visualization and setting goals for the future based on a desired result. Harnessing the power of optimistic thinking can be further strengthened by working on these skills in conjunction with a therapist utilizing cognitive behavioral techniques. By continuing to rehearse these positive outcomes, our minds develop an alternative mental path-

way to the “bracing for the worst” strategy. Emotion regulation is another strategy to cope with uncertainty recommended by Sweeny, which helps us focus on what we can control amid the uncertainty. Emotion regulation refers to the ability to modulate or regulate difficult emotions including anxiety, fear and anger. By focusing on how to cope with the anxiety itself, rather than the outcome of the news, people can often find relief because they are not relying on something outside their control. Getting into a state of what researchers call “flow” is one of the most effective emotion regulation strategies for coping with uncertainty. We can find “flow” by engaging in an “intrinsically rewarding activity that is just challenging enough to match one’s skill level and that provides clear goals and feedback.” Sweeny found that engaging in flow-inducing activities including exercise, games, puzzles, sports, work and social outings boosted an individual’s sense of emotional well-being while awaiting important news, including bar exam results, internship and residency matches for medical students, and even during quarantine through the pandemic. Mindfulness meditation is another strategy that was equally effective in promoting well-being during difficult waiting periods. Mindfulness refers to paying attention — in the present moment, for a specific period — nonjudgmentally to the breath, the body, or other objects in the environment such as sounds. Mindfulness during uncertainty is associated with more positive emotions and a reduction in depression. In my own clinical practice, I have found additional emotion regulation practices, including self-compassion meditations (practices designed to reduce shame and increase self-kindness), yoga and tai chi/qi gong that create strength, balance and flexibility, along with improved focus and concentration, and support groups in which individuals recognize that they are not alone in their struggles can be powerful tools during difficult waiting periods. There are no one-size-fits-all ways to cope with uncertainty, but there are some key strategies that can reduce the intensity of the distress. 1. Accept that uncertainty is challenging and have compassion, patience and understanding for our-

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selves and others during difficult waiting periods. Sometimes just offering this acceptance to ourselves or our clients can be helpful. For example, say to a client, “It is really hard to wait for a verdict,” rather than simply try to reassure that everything will be fine or downplay the difficulty. 2. While most of us tend to “brace” for the worst when waiting, optimism about the outcome is more effective in reducing anxiety and worrying. This can be particularly difficult for legal professionals and takes practice. 3. Emotion regulation strategies that can soothe the nervous system play a key role in managing anxiety during waiting periods. These might include breathing exercises, massage, counseling and support groups. 4. Engaging in rewarding activities that allow the mind to be absorbed in something challenging and goal-oriented (“flow”) can increase well-being during uncertainty. This is especially true as the “moment of truth” for finding out the answer nears, and anxiety hits its peak. 5. Mindfulness meditation, yoga and tai chi, and self-compassion can also reduce anxiety and increase wellbeing during uncertain times and help keep our minds focused on the present moment. By learning to navigate uncertainty with optimism and self-compassion, lawyers can help themselves and their clients manage this difficult time with more ease, less anxiety, and an improved sense of well-being. Dr. Tracey Meyers is a clinical psychologist and mindfulness instructor with Lawyers Concerned for Lawyers.

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 23, 2022

Professionalism and civility are the foundation of the legal profession ■ BY PAUL MARK SANDLER BridgeTower Media Newswires BALTIMORE, MD -- The practice of law has a rich heritage. Lawyers throughout history have contributed to the development of the rule of law, and to our present day system of justice. Representation of a client whether in court, the board room, or in the drafting of documents is an awesome responsibility. Historically, lawyers have been recognized with respect and gratitude for their many contributions to their clients and to a free society. Many have risked their careers and lives on behalf of their clients. That is not to say that throughout the centuries there have not be criticisms of the Bar. It is fairly debatable, for example, whether Shakespeare in “Henry VI” — “The first thing we do is kill all the Lawyers” — expresses criticism of lawyers or a compliment. I side with those who consider it a compliment, as lawyers are the palladium of freedom. In the context of the play, there was a revolt against the government. Killing all the lawyers was to break down the walls of society. Throughout the 19th and much of the 20th centuries, many recognized the practice of law as a profession — advertising was not permitted. Today, the private practice of law is often focused intensely on business profit, instigating many to now use the term “legal industry.” However, the best of the profession practice professionalism in concert with fulfilling business objectives. In Maryland, professionalism is the doctrinal underpinning of the practice of law. This is clear by the conduct of the best lawyers, and the written guidelines advocating professionalism contained in the Maryland Rules of Procedure. Following Chapter 300 of “Mary-

land Attorneys’ Rules of Professional Conduct,” which focus on ethical rules — is Appendix 19-B, “Ideals of Professionalism,’ where professionalism is defined as: “…the combination of the core values of personal integrity, competency, civility, independence, and public service that distinguish attorneys as the caretakers of the rule of law.” Though these “rules” are aspirational, let them inspire your conduct both in and outside the courtroom. I have included below just a few of the aspirations I find particularly compelling, followed by some of my observations. Put fidelity to clients before selfinterest. This includes integrity and fairness in billing; keeping confidences by not revealing client discussions with others; and taking care to go the “extra mile,” when appropriate. Also, avoid conflicts of interest. Preserve the dignity and integrity of the profession. Cooperate with opposing counsel to accomplish mutual goals. For example, if you are engaged in litigation and concerned that the discovery rules in state court regarding experts are much broader than comparable federal rules—i.e., draft reports and many conversations with experts are discoverable under the state rules but not so under federal rules—why not enter into a side bar agreement with opposing counsel to operate under the federal rules regarding expert discovery? Perhaps opposing counsel filed an amended complaint that you deem defective, e.g., a flaw exists that would result in a dismissal but with leave to amend. Why not call counsel and suggest an amended complaint, unless that would be against the interest of your client? Regarding integrity, consider that it is reported that one lawyer stated to another while seated at counsel

table: “This judge does not know his head from his ... about dispute resolution agreements.” Soon the judge appeared, took his seat, and stated: “Good morning, counsel. Are we ready to proceed? And by the way, I know more about dispute resolution clauses than you think.” The judge’s practice was to record conversations in the courtroom. Also, avoid ad hominem attacks on opposing counsel. Recognize the practice of law is a calling. Enhancing access to justice by providing pro bono representation, and by contributing financially to legal services is vital. Serving on bar association committees and community boards are also important ways to answer the calling for public service. Appreciate the importance of continuing education, mentoring, and excellence. It is important to stay abreast of the law and attend CLE programs. Additionally, mentoring new lawyers is an implicit commitment by the best lawyers. It is not wrong to take time out during a deposition to suggest to a new lawyer the proper way to pose the question, after several failed attempts. Of course, if this contradicts the best interest of your client, this suggestion is not appropriate. When thinking of professionalism, consider the following remarks made many years ago by John W. Davis, Esq.: “In the heart of every great lawyer, worthy of the name there burns a deep ambition so to bear themselves that the profession may be stronger by reason of their passage through its ranks, and that they may leave the law itself a better instrument of human justice than they found it.” Let’s all be one of the best lawyers to which he refers. Paul Mark Sandler, trial lawyer and author, can be reached at pms@ shapirosher.com.

Win more often: Avoid fallacies in your advocacy ■ BY PAUL MARK SANDLER BridgeTower Media Newswires BALTIMORE, MD -- A fallacy is a mistake in reasoning. It can undermine your case. Therefore, it is important to examine your own planned written and oral presentations. Also, carefully consider opposing presentations to determine whether they “hold water” or are fallacious. Remember, sound reasoning is at the heart of advocacy; it is the most effective tool of advocacy. Aristotle, in his work “Rhetoric,” stated that logic is the most potent ingredient in the art of persuasion, followed by emotion and ethos. Interestingly, mistakes in reasoning are often overlooked by both proponents and opponents. Consider some of these common fallacies: False premise In a deductive argument, reasoning from general to specific via syllogism is fallacious, if one of the underlying premises is false. For example: All men are good. Socrates is a man, hence Socrates is good. But the false premise of “all men are good” weakens, if not destroys, the entire argument. Now transpose this example to an

argument in court. Opposing counsel states: “Your honor, the complaint should be dismissed. The statute of limitations is three years (major premise). The complaint was filed four years after the alleged negligence (minor premise). Thus limitations is not tolled (conclusion).” Your response should be: “Your honor, the statute of limitations provides that the case must be filed within three years from the date of the negligence or when reasonably discovered (showing false major premise). Hence this is our case. The complaint should not be dismissed.” Red herring This fallacy presents irrelevant, or false, facts that distract from the main point, in an effort to change the argument to a different direction. The concept of a “distraction like a red herring” originates from the sport of fox hunting, where an odiferous scent was spread across the track of the fox to throw the hounds off the scent. Consider, for example: “You cannot accept the plaintiff’s expert’s opinion. He never even examined her. He only looked at the medical records.” Response: “The defendant’s argument is nothing more than a red herring when, in fact, the expert had

no reason to examine plaintiff as her condition did not warrant it, and the medical records were thorough and accurate.” Straw person This fallacy involves the creation of a distracting position in opposing an argument, and then attempting to refute or destroy it. For example, in a case where the former wife claims the husband assaulted her, counsel for the husband tries to emphasize eccentric characteristics of the wife by suggesting she was difficult to live with. This type of argument is a “straw person.” Point out the absurdity of its relevance, even if it is true. Also, refrain from including such arguments in your own presentations. Ad hominem attacks This fallacy involves a personal attack on an adversary and must be avoided. Take, for example,counsel who states the following during closing argument to opposing counsel in front of the jury: “Mr. Darrow, you should be ashamed of yourself for bringing this case, which has no merit.” Such attacks can bring about sanctions, and can certainly demean your See Page 5 ►

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I May 23, 2022

Pool victim settles for $4.1M ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com A woman who suffered permanent, debilitating brain injuries after a non-fatal drowning has settled her negligence claim for $4.1 million, her attorneys report. The plaintiff was represented by Amanda Mingo and Katie Clary of Rawls, Scheer, Clary & Mingo in Charlotte. The attorneys said that the woman “suddenly and explicably” slipped underwater and sank to the deep end of a swimming pool. It’s unclear how long the woman remained submerged, but the attorneys said that she suffered permanent cognitive impairments and physical injuries. Many of the case’s details, including the venue

C o nt inu e d f r o m 4 ►

character. Further, subtle attacks in written memoranda and appellate briefs should also be avoided. Slippery slope This fallacy is based on the premise that if we take one small step in the wrong direction, more and more serious problems will arise as we go down a slippery slope. Imagine this argument in the courtroom: “If you do not find for the plaintiff in this

and the names of the parties and defense counsel, have been withheld pursuant to a confidentiality agreement. The woman Katie Clary Amanda alleged that the Mingo pool’s lifeguard was negligent in failing to see and rescue her in a timely manner. The attorneys said that the defendant challenged the allegations of negligence and the extent of permanent injury before agreeing to the settlement. Follow Heath Hamacher @NCLWHamacher

slip-and-fall case, you will be encouraging other grocery stores to slack off on their responsibility to keep their floors safe for the customers to walk, resulting in more and more stores failing to keep their floors safe.” The fallacy here is that there is no basis in fact for such a statement, and the prediction is speculative — if not overreaching. Non sequitur This fallacy, which is related to the false premise, reflects an argument

SETTLEMENT REPORT — NEGLIGENCE

Amount: $4.1 million Injuries alleged: Non-fatal drowning that led to hypoxic brain injury and permanent neurological defects Case name: Withheld Court: Withheld Date of settlement: April 2022 Attorneys for plaintiff: Amanda Mingo and Katie Clary with Rawls, Scheer, Clary & Mingo in Charlotte Attorney(s) for defendant: Withheld

that does not follow from the prior statements. For example, counsel for the defense in closing argument is validating her client’s honesty when he took the stand in his own defense: “Ladies and gentlemen, during his testimony Mr. Gold looked you in the eyes so you know he was telling the truth. He had nothing to do with robbing the bank.” The fallacy here is glaring (no pun intended). People who look you in the eyes when speaking may or may not be truthful. The

conclusion, therefore, does not follow the premise. These examples of fallacies are but the tip of the iceberg. Suffice to say that all of us need to take care that what we present in the courtroom to support our case “makes sense.” We also must be vigilant to recognize the fallacies or weaknesses in opposing arguments. Paul Mark Sandler, trial lawyer and author, can be reached at pms@ shapirosher.com.

WORKERS’ COMP / Right to remain silent C o nt inu e d f r o m 1 ►

performed surgery to address a meniscal derangement. In September 2015, a month after surgery, Forte reported the injury to Goodyear for the first time, saying that he had not reported it previously because he didn’t consider it an accident, like getting hit with a forklift or something similar. The commission denied Forte’s subsequent workers’ compensation claim but the deputy commissioner found him to be a “compelling and credible” witness, determining that Forte’s injury was compensable because it happened within the course of his employment. The full commission, however, found that his testimony was not credible based on inconsistent reports to medical providers, vague

testimony concerning car accidents before and after the alleged injury, and his failure to report the injury until three months after it allegedly occurred. Forte was represented on appeal by Kathleen Sumner and David Stewart of Law Offices of Kathleen Sumner and Jay Gervasi, all of Greensboro. Gervasi said that there is an implication that the full commission was looking for an excuse to find that Forte wasn’t credible. “There was a process of picking through the record to find bits, when the Deputy Commissioner had seen everything, including Mr. Forte, and decided the other way,” Gervasi said in an email to Lawyers Weekly. Gervasi added that the full commission was oblivious to the difficulties in trying to have Forte’s co-workers testify against their em-

ployer and the “pointlessness of subpoenaing a nurse to have her testify that she saw Forte in the clinic.” “As Kathleen argued, the Full Commission made too much of Mr. Forte’s ‘failure’ to call corroborating lay witnesses,” Gervasi wrote.

‘Good ground’ is good enough

On appeal, the court found that state law allows the full commission to amend the deputy commissioner’s award “if good ground be shown” to do so and that the determination will not be reviewed on appeal absent “manifest abuse” of the discretion. Ordinarily, the court noted, when a trial court has discretion to act upon a showing of good cause and makes no express findings, the appeals court presumes that the trial judge found the necessary good cause and examines whether the record supports that finding. The

court found no need to create a different rule for the discretionary decision of the full commission. “The Full Commission indicated that it heard the case and entered its opinion and award ‘pursuant to N.C. Gen. Stat. § 97-85,’” Dietz wrote. “Moreover, there is no indication in the record that the Full Commission acted under any misapprehension of the law when assessing its authority to reconsider the deputy commissioner’s findings.” M. Duane Jones and Jennifer Mitchell of Hedrick Gardner Kincheloe & Garofalo in Charlotte represented the defendants. The 10-page decision is Gary Forte v. Goodyear Tire & Rubber Co. (Lawyers Weekly No. 011-103-22). The full text of the opinion is available online at nclawyersweekly.com. Follow Heath Hamacher on Twitter @NCLWHamacher

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6 / NEWS

N O R T H C A R O L I N A L A W Y E R S W E E K LY I M ay 23, 2022

FACEBOOK / Contributions raise questions of impropriety C o nt inu e d f r o m 1 ►

court,” when Stroud “whipped the votes,” Berger wrote, adding that other candidates had “worked for years in GOP politics.” Years of service with a specific political party is not requisite for serving as the appeals court clerk, but having at least 10 years of experience as a lawyer is, according to the job posting. Based on Berger’s time on the bench, it is unlikely that his former clerk met this minimum qualification. Berger went on to say that Stroud “had an opportunity to correct what she had done” after several Republican judges questioned her vote tally. “The process was repeated,” Berger wrote. “10-5 court votes 8-7 so the dems got their clerk of court.”

‘Perpetual candidates’

Justices and judges are publicly elected in North Carolina, so the freedom to campaign and endorse candidates is theirs. Canon 7 of the state’s Code of Judicial Conduct aims to “strike a balance between … the need for an impartial and independent judiciary and … the right of judicial candidates to engage in constitutionally protected political activity.” It holds that a judge or justice cannot endorse a candidate unless that judge or justice is also a candidate, someone “actively and publicly seeking election

to judicial office.” Berger meets this requirement, having already formally declared himself a candidate for reelection in 2028. But those who declare themselves “perpetual candidates” are sidestepping the state’s ethics code, said Duke University law professor and former advisory member to the North Carolina State Bar Ethics Committee Thomas Metzloff, who told the News & Observer in Raleigh that being a political actor should be limited to “periods of their active candidacy.” Berger did not respond to multiple requests for comment.

All is not fair

Some argue that Berger’s actions go beyond the appropriate endorsement of one candidate and into inappropriate methods of attacking another. When the previous Court of Appeals clerk, Dan Horne, announced his plans to retire, the court began its search for his replacement. Typical for state jobs, the position was publicly posted through the Administrative Office of the Courts. Each Court of Appeals judge had access to the applications, participated in the interview process, and voted on whom to hire. But while all 15 appeals court judges are privy to applicant’s information, neither Supreme Court justices nor the public should have been. “The hiring process is a personnel

matter and details of the identities and qualifications of the applicants who applied, information regarding the interviews, and internal discussions of the judges on the Court regarding the applicants are therefore confidential,” Stroud said. “Neither I nor any other judge should disclose details of this confidential process outside the Court of Appeals.” Records also show that Berger’s campaign contributed $4,000 to a political action committee (PAC) that recently referred to Stroud in Facebook ads as a RINO (Republican in name only) and “The Liberal Choice for the Court of Appeals!” “In 2020 while grassroots conservatives were working hard to elect constitutional conservatives to the Court of Appeals, RINO Donna Stroud was working to help liberal progressives control the NC Court of Appeals! But we got the last laugh!” one of the ads states. On May 16, campaign watchdog Bob Hall of Durham filed a complaint with the North Carolina State Board of Elections, alleging that the contribution to the PAC was illegal. “NCGS 163-278-16.B clearly prohibits Berger for Justice and other candidate campaign committees from making contributions to PACS,” the complaint reads. “The law specifies that candidate committees may only contribute to another

candidate committee or to a political party committee or its affiliate or caucus. If the General Assembly intended to allow contributions to PACs, the law (which was updated as recently as 2018) would have included ‘political committees’ among the permitted recipients of contributions.” Hall wrote that he understands that it may be difficult for the Board to rule against Berger, “the son of state Senate boss Phil Berger Sr., who could retaliate by undercutting the Board’s budget.” Hall also noted a $5,600 contribution by the Committee to Elect Jeff Carpenter and accused the PAC of “systematically and repeatedly violating campaign finance laws designed for the public’s benefit and fair elections.” Stroud said that there is a duty to protect and defend the judiciary from “inappropriate political interference.” “My primary election this year has presented unprecedented issues testing the limits of the Code of Judicial Conduct and challenging the independence and integrity of the court,” Stroud said. Despite those issues, Stroud survived Freshwater Smith’s challenge, winning the primary election on May 17 Follow Heath Hamacher on Twitter @NCLWHamacher

4TH CIRCUIT / Enhancement harmless C o nt inu e d f r o m 1 ►

objected to the district court at his resentencing hearing, arguing that the court should not apply the enhancement because the pistol was not used “in connection with” the crime of passing counterfeit money. The court overruled the objection but granted two others, decreasing his category from V to IV and lowering his sentencing range to 57 to 71 months in prison. It resentenced Cisson to 62 months in prison and three years’ supervised release. Cisson appealed, asserting that the court erred in applying the enhancement.

‘In connection with’ irrelevant here

Cisson did not dispute that he possessed the firearm or ammuni-

tion, nor that he committed another felony offense. But he argued that possession of the firearm was not “in connection with” the offense of passing counterfeit money. The 4th Circuit explained that it is not especially burdensome to the government to satisfy the “in connection with” requirement but that despite the strengths or weaknesses of each side’s arguments regarding the enhancement, the court ultimately would not need to decide the question if it determined that the error was harmless. One prong of that analysis would be whether the district court would have reached the same result if it had decided the Guidelines issue (the “in connection with” issue) the other way. District Judge J. Michelle Childs indicated that it would have, Motz noted.

“First, under binding circuit precedent, we have held that we know a district court would have reached the same result when it tells us that it would have done so and explains why, and here the district court did just that,” Motz wrote.

No grounds for Rogers error

Cisson also alleged that the district court committed two Rogers errors—each requiring that his sentence be vacated and remanded for resentencing—by 1) orally describing a condition specifying the district to which he should report after his release that differed from the description of that condition in the court’s written judgment, and 2) orally announcing merely that Cisson would be subject to the “mandatory standard conditions” of supervised release, thereby failing

to adequately announce the discretionary conditions that it later imposed in its written judgment. After Cisson’s conviction, the 4th Circuit decided in U.S. v. Rogers that a district court must announce discretionary conditions of supervised release at sentencing hearings. Subsequently, in State v. Singletary, the court emphasized that the proper remedy for a Rogers error is to vacate the sentence and remand for resentencing. Finally, in U.S. v. Jenkins, the court noted that where the description of a condition in an oral sentence did not match the description of that condition in the written judgment, the error alone is a reversible Rogers error. In his first Rogers claim, Cisson claims not a failure to announce a S e e P a g e 16 ►

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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 23, 2022

Opinions Criminal Practice Sentencing – Harmless Error – Firearm Purchase – No Rogers Error Defendant, a convicted felon, used counterfeit bills to buy a handgun. Even if it were error for the district court to increase defendant’s offense level based on his possession of a firearm “in connection with another felony offense,” any such error was harmless because the district court adequately explained defendant’s sentence and its relation to the factors set out in 18 U.S.C. § 3553(a). The district court’s judgment is affirmed. After defendant was sentenced, we decided in United States v. Rogers, 961 F.3d 291 (4th Cir. 2020), that a district court must announce discretionary conditions of supervised release at sentencing hearings. In this situation, defendant could properly raise the issue for the first time in a Fed. R. App. P. 28(j) letter. Defendant asserts there was an inconsistency between the district court’s oral sentence – that he was to report to probation in the district to

which he is released – and the written judgment directing him to report to probation in the district where he is authorized to reside. According to the government, the district to which a defendant is released is the district in which he is authorized to reside. Defendant has waived any possible response to the government’s proffered explanation. Therefore, we must hold there is no inconsistency between the descriptions of the condition in the oral sentence and the written judgment and thus no Rogers error. United States v. Cisson (Lawyers Weekly No. 001-072-22, 17 pp.) (Diana Gribbon Motz, J.) 19-4031. Appealed from USDC at Anderson, S.C. (Michelle Childs, J.) Erica Marie Soderdahl and Benjamin Stepp for appellant; Benjamin Neale Garner, Sherri Lydon and Maxwell Cauthen for appellee. 4th Cir.

Criminal Practice

ficer was allowed to testify – over defendant’s objection – that the circumstances of the single-vehicle accident led him to believe defendant had been the driver. Even if it were error for the trial court to admit this lay opinion testimony, since the same information was admitted via defendant’s cross-examination of the officer and through a blood-draw warrant application to which defendant stipulated, the error was not prejudicial. We reverse the Court of Appeals’ award of a new trial. State v. Delau (Lawyers Weekly No. 010-045-22, 20 pp.) (Robin Hudson, J.) On appeal from the Court of Appeals. Appealed from Buncombe County Superior Court (Marvin Pope, J.) Zachary Dunn for the state; Joseph Lattimore for defendant. 2022NCSC-61

Domestic Relations

DWI – Identity of Driver – Lay Opinion Testimony – Other Evidence

Parent & Child – Termination of Parental Rights – Plan Participation – Continued Denial of Responsibility

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Although the respondent-father challenged some of the trial

court’s findings of fact, the trial court’s unchallenged findings show that, while domestic violence was clearly identified as the reason for “Kenny’s” removal and respondent engaged in services required by his case plan to address the issue, respondent continued to deny his role in the domestic violence, failed to acknowledge the effects the domestic violence had on Kenny, and refused to accept any responsibility for Kenny’s removal. The unchallenged findings provide support for the trial court’s continued concern that the issue of domestic violence had not been alleviated and support its conclusion that there was a likelihood of repetition of neglect if Kenny was returned to respondent’s care. Accordingly, we hold that the trial court did not err by concluding that there was a likelihood of repetition of neglect and affirm the trial court’s determination that respondent’s parental rights were subject to termination for neglect pursuant to G.S. § 7B-1111(a)(1). In re K.Q. (Lawyers Weekly No. 010-046-22, 16 pp.) (Robin Hudson, J.) Appealed from Cumber-

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8 / OPINION DIGESTS land County District Court (Cheri Siler Mack, J.) Patrick Kuchyt for petitioner; Matthew Wunsche for guardian ad litem; Mary McCullers Reece for respondent. 2022-NCSC53

Criminal Practice Guilty Plea – Multiple Assaults – Factual Basis – Insufficient Interruptions From the state’s description of the factual basis for defendant’s plea of guilty to assault on a female, assaulting inflicting serious bodily injury and assault by strangulation, one can imagine distinct interruption between the assaults. However, the actual factual basis presented to the trial court does not support a finding of distinct interruptions. Where defendant entered into a plea agreement, we may not – as the Court of Appeals ruled – uphold defendant’s sentence for the most serious offense. Instead, we must reject the plea agreement as a whole and remand. Under G.S. § 15A-1022(c), a “judge may not accept a plea of guilty . . . without first determining that there is a factual basis for the plea.” This statutory condition requires an independent judicial determination that a sufficient factual basis exists before a trial court accepts a guilty plea. Therefore, a trial court’s determination as to whether a sufficient factual basis exists to support a defendant’s guilty plea is a conclusion of law re-

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 23, 2022

viewable de novo on appeal. In its factual summary, the prosecution stated that victim Leslie Wilson said she’d been held captive by defendant for three days. “Wilson . . . stated that . . . defendant[ ] had grabbed her around the neck and that while he was choking her she had a taken a box cutter from him. During the assault that occurred over that night, Your Honor, Ms. Wilson was punched a number of times causing a broken jaw and a dislodged breast implant. She also had small cuts on her hands that were consistent with the altercation, as well as bruising around her neck. Ms. Wilson describes that during the strangulation she was unable to breathe and felt like she was going to pass out.” Wilson told the court, “We were both drinking and he was getting ill, so I dumped all the beer out. Dumped out everything I could find. And then I locked myself in the bathroom. And he broke two doors trying to get to me and he kept telling me to tell him where I had hid the beer. I didn’t want to tell him then that I’d poured it out because I was so afraid. But I poured it out, trying to keep him from getting to this point. And then he got after me and I had a box cutter, which I was trying to defend myself at that point, and he held me down on the bed. I actually blacked out twice. And when he was strangling me and told me I needed to learn where the pressure points was, with his elbow on my jawbone and my throat. And then when I got back up I did—I had the box cutter but I

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was trying—I was scared to death. I thought he was going to kill me. I couldn’t even hardly talk.” These facts fail to establish evidence of a distinct interruption in the assault to support multiple assault convictions and sentences. Neither the prosecutor’s factual summary nor Wilson’s statement note an intervening event, a lapse of time in which a reasonable person may calm down, an interruption in the momentum of the attack, a change in location, or some other clear break delineating the end of one assault and the beginning of another. Instead, the factual statements as given describe a confined and continuous attack in which defendant choked and punched Wilson in rapid succession and without pause or interruption. We acknowledge that one can imagine a distinct interruption being described here with additional facts. However, this court must consider the factual summary not as it could have been, but as it was presented. As it was presented, the factual summary provided by the state and Wilson describe no such discernible sequence of events indicating a distinct interruption in the assault. Without evidence of a distinct interruption in the assault, the trial court did not have a sufficient factual basis upon which to sentence defendant to separate and consecutive assault sentences. Accordingly, we affirm the ruling of the Court of Appeals majority that the trial court erred when it accepted the plea and entered judgment on the three different assault charges. We modify the remedy, rejecting the plea agreement as a whole. Modified and affirmed.

court’s determination that a factual basis existed for defendant’s plea. In so doing, the majority expands the role of the trial court beyond that envisioned by the statute, into one similar to the role performed when reviewing a motion to dismiss. The decision of the Court of Appeals should be reversed and the trial court’s entry of judgment and sentences against defendant should be affirmed. State v. Robinson (Lawyers Weekly No. 010-047-22, 31 pp.) (Robin Hudson, J.) (Paul Newby, C.J., joined by Tamara Barringer, J., dissenting) (Philip Berger, J., not participating) On appeal from the Court of Appeals. Appealed from Buncombe County Superior Court (Marvin Pope, J.) Jessica Macari for the state; Dylan Buffum for defendant. 2022-NCSC-60

Dissent

In a question of first impression for this court, defendant argues the standard of review on appeal for Commission findings on compliance with § 97-24’s timely filing requirement is a competent-evidence standard of review, rather than de novo review as applied by the Court of Appeals below. We disagree. When reviewing findings of fact by the Commission on which the scope of its jurisdiction depends, we apply a de novo standard of review. Despite a reference in Gore v. Myrtle/Mueller, 362 N.C. 27 (2007), to a treatise, we adhere to our ruling in Biddix v. Rex Mills, 247 N.C. 660 (1953): “But the Commission has no authority . . . to intervene and make an award of any type until its jurisdiction as a judicial tribunal has been invoked in the manner prescribed in the [Workers’ Compensation] Act under which it operates.” Nevertheless, under Biddix, the law of estoppel may sometimes bar assertion of G.S. § 97-24’s timelyfiling requirement. Under Gore, unlike questions of subject-matter jurisdiction in other contexts, a defendant may be barred by equitable estoppel from raising lack of jurisdiction for failure to comply with the timely-filing requirement of § 97-24 as an affirmative defense. The timely-filing requirement is jurisdictional and subject to de novo review.

(Paul Newby, C.J.) The prosecutor’s factual summary and the testimony of the victim tended to show that there was a distinct interruption between each assault. One assault began when defendant “broke two doors trying to get to” the bathroom, where Wilson had locked herself in, and then “grabbed [Wilson] around the neck and . . . was choking her” before she took a box cutter from him. At some point, defendant “got after [Wilson]” and chased her from the bathroom to the bedroom. This change in location constituted a distinct interruption. After this interruption, defendant “held [Wilson] down on the bed.” Defendant “strang[led] [Wilson] and told [her that she] needed to learn where the pressure points w[ere], with his elbow on [Wilson’s] jawbone and [her] throat.” Defendant thus caused Wilson to black out, creating another distinct interruption. When she awoke, Wilson still “had the box cutter” and tried to defend herself, but defendant nonetheless committed another assault by “punch[ing] [Wilson] a number of times causing a broken jaw and a dislodged breast implant.” Thus, the substantive material independent of the plea tends to show that a distinct interruption occurred between the assaults. Accordingly, the trial court did not lack authority to sentence defendant for each assault. In holding otherwise, the majority errs by wrongly applying a de novo standard of review to the trial

Workers’ Compensation Subject Matter Jurisdiction – Timely Filed Claim – De Novo Review – First Impression – Estoppel Even though plaintiff waited until 2018 to file a workers’ compensation claim for her 2014 back injury, since the record shows that the defendant-employer last paid for treatment for the injury in 2017, plaintiff’s claim was not barred by G.S. § 97-24’s time limit for filing claims. We affirm the Court of Appeals’ decision, which reversed the Industrial Commission’s determination that it lacked subject matter jurisdiction.

Standard of Review

Application

Applying a de novo standard of review and freely substituting our own judgment, the evidence in the record tends to show that plaintiff’s

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 23, 2022

25 April 2017 visit to defendant’s physical therapist, Frank Murray, for treatment was related to her 27 May 2014 injury. Although plaintiff’s treatment by Murray had been discontinued in 2015, the record shows that she continued to seek treatment from other providers in the interim and returned to Murray for chronic back pain, which had originated in 2014. Taken in isolation, Murray’s 2015 “discontinuation” note may be some evidence that plaintiff’s medical treatment for the 27 May 2014 injury was completed in 2015. However, the Commission erred in relying on it, given evidence that plaintiff continued to suffer chronic back pain stemming from the 27 May 2014 injury. Elevating the discontinuation note above the greater weight of the evidence is the sort of technical, narrow and strict interpretation of workers’ compensation provisions our case law warns against. Affirmed and remanded.

Dissent

(Newby, C.J.) The timely-filing requirement of § 97-24 has repeatedly been held to be a condition precedent to the right to compensation. The Commission’s determination of whether plaintiff’s treatment with Murray in 2017 was related to her 2014 injury – which would have rendered her 2018 claim timely – required the Commission to make numerous credibility and weight determinations, a task it is designed to do. Though a party invokes the Commission’s authority by timely filing a

claim, the party does not confer jurisdiction upon the Commission. Moreover, holding that the timely filing requirement is jurisdictional theoretically seems to put it beyond the reach of estoppel. Under the proper standard of review, the Commission’s finding that defendant did not pay for medical treatment related to plaintiff’s 27 May 2014 injury beyond April of 2015 was supported by competent evidence. That finding, in turn, supported the conclusion of law that plaintiff’s claim was barred because she did not timely file her claim. Accordingly, this court should reverse the Court of Appeals, which reversed the Commission’s dismissal of plaintiff’s claim. Cunningham v. Goodyear Tire & Rubber Co. (Lawyers Weekly No. 010-048-22, 31 pp.) (Robin Hudson, J.) (Paul Newby, C.J., joined by Tamara Barringer, J., dissenting) (Philip Berger, J., not participating) On appeal from the Court of Appeals. Appealed from the Industrial Commission. Kathleen Sumner, David Stewart and Jay Gervasi for plaintiff; Angela Farag Craddock for defendant; Vernon Sumwalt and Michael Bertics for amicus curiae. 2022-NCSC-46

Civil Practice Motion to Dismiss – Summary Judgment Conversion – Memoranda & Arguments of Counsel – Tort/Negligence – Medical Malpractice – Statute of Limitations In this medical malpractice case, on defendants’ motion to dismiss the

complaint as time-barred, the trial court considered only the “arguments of parties and counsel for the parties and . . . reviewed the court file, pleading[ ], and memorand[a] of law submitted by both parties.” Nothing in the trial court’s order indicates any additional documents were presented apart from the memoranda submitted by the parties. Accordingly, the trial court did not convert defendants’ motion to dismiss into a motion for summary judgment. We reverse the Court of Appeals’ reversal of the trial court’s grant of defendants’ motion to dismiss. We remand for consideration of additional issues. Defendants’ memorandum included the pleadings, a statute, and case law as exhibits, but it did not include any evidentiary materials. Plaintiff did not include any exhibits with his memorandum. Though plaintiff’s counsel made several factual assertions in his memorandum and during the hearing, these statements by plaintiff’s counsel were not evidence and thus are not matters outside the pleading. Accordingly, the trial court did not consider any matters outside the pleading. Because the trial court’s review was limited to the pleading, it did not convert the N.C. R. Civ. P. 12(b) (6) motion to a N.C. R. Civ. P. 56 motion.

Dissent

(Earls, J.) Given that (1) the plaintiff faces a serious, life-threatening illness, (2) the issues on re-

mand are pure questions of law, (3) those issues have been fully briefed, and (4) this court has not yet considered these issues and the Court of Appeals’ rulings on the issues appear inconsistent, we should not remand. Instead, we should determine the issues of whether the trial court properly granted defendants’ motion to dismiss and whether the trial court should have granted plaintiff leave to amend his complaint. Blue v. Bhiro (Lawyers Weekly No. 010-049-22, 15 pp.) (Paul Newby, C.J.) (Anita Earls, J., concurring in part & dissenting in part) On appeal from the Court of Appeals. Appealed from Scotland County Superior Court (Gale Adams, J.) Christopher Edwards and Alex Dale for plaintiff; Gary Adam Moyers and Gloria Becker for defendants.

Criminal Practice Felony Larceny – Lesser Included Offense – Common Law Robbery – Indictment – Property Owner We improvidently granted discretionary review of our Court of Appeals’ decision (The common law robbery indictment against defendant did not identify the owner of the property he was alleged to have stolen; nevertheless, defendant could be convicted of the lesser included offense of felony larceny. Even though the victim testified that much of the Nintendo equipment he was carrying in a bag dropped

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10 / OPINION DIGESTS onto the ground when defendant grabbed the bag, defendant admitted that he took the property from the victim by force and ran off but later dropped or lost it. The victim’s and defendant’s testimony satisfies the asportation requirement of the offense of larceny.). State v. Boyd (Lawyers Weekly No. 010-050-22, 1 p.) (Per Curiam) On discretionary review from the Court of Appeals. Appealed from Mecklenburg County Superior Court (Hugh Lewis, J.) Keith Clayton for the state; Jason Christopher Yoder for defendant. 2022-NCSC58

Criminal Practice Controlled Substance Embezzlement – Pharmacy Technician We affirm our Court of Appeals’ holding (Defendant – a pharmacy technician – had access to controlled substances by virtue of her employment because she was allowed to take filled prescriptions from the pharmacy’s waiting bins after they were filled by the pharmacist. Because the state showed that defendant lawfully possessed the filled prescriptions – which were obtained through fraud – the state’s evidence was sufficient to prove embezzlement under G.S. § 90-108(a)(14).). State v. Woods (Lawyers Weekly No. 010-051-22, 1 p.) (Per Curiam) On appeal and discretionary review from the Court of Appeals. Appealed from Mecklenburg County Superior Court (Karen Eady-Williams, J.) Jessica Sutton for the state; Aaron Thomas Johnson for defendant. 2022-NCSC-56

Domestic Relations Parent & Child – Permanency Planning Order – Guardianship – Constitutional A mother who left her children with their paternal grandmother for three years – making infrequent visits and no support payments – acted inconsistently with her constitutionally protected status as a parent. We affirm the Court of Appeals’ decision to affirm the trial court’s award of legal guardianship of “Brittany” and “Brianna” to their paternal grandmother. A period of voluntary nonparent custody may constitute conduct in-

consistent with the protected status of natural parents and therefore result in the application of the “best interest of the child” test, as the trial court did here. According to the trial court’s findings of fact, respondent-mother left the father’s home in 2015. At that time, respondent-mother surrendered custody of the children to the paternal grandmother (who lived with the children’s father) and made no attempt to reunify with the children until after they had been taken into custody by the county human services agency (HSA). In the course of that threeyear period, respondent visited the children on holidays and birthdays without ever taking the children to her home overnight or visiting with them on other than special occasions. HSA became involved when the father was arrested. Although respondent has taken a more active role in the children’s lives in recent years, including paying child support and engaging in overnight and weekend visitation, she was unable to obtain suitable housing for the children until approximately one month prior to the permanency planning review hearing, at which point the children had been in HSA custody for over 19 months. In addition, the trial court found that, “although [respondent] and [her husband (the stepfather)] have completed their family service agreement and have a bond with the children, the strongest bond is with [the paternal grandmother]”; that both girls had experienced “adjustment issues” following weekend visitations with respondent and the stepfather; and that the children want to live in the paternal grandmother’s home. In light of our cumulative view of respondent’s conduct, as described in the trial court’s findings of fact, we hold that the relevant findings support the trial court’s conclusion that respondent acted in a manner inconsistent with her constitutionally protected rights as a parent by voluntarily ceding the custody and care of her children to the parental grandmother for a period of three years. The minimal degree of contact that respondent had with the children prior to their placement in HSA custody indicates that respondent intended for the paternal grandmother to continue to provide primary care for the children for an indefinite period of time with no notice that such relinquishment of

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I M ay 23, 2022

custody would be temporary, particularly given respondent’s failure to take any steps to regain custody of Brittany and Brianna until after they entered HSA custody. As a result, the trial court’s findings of fact show that respondent induced the children and the paternal grandmother to allow that family unit to flourish in a relationship of love and duty with no expectations that it would be terminated. To be sure, respondent’s efforts to regain custody of her children following their placement into HSA custody are relevant to the issue of parental fitness. However, a parent’s compliance with his or her case plan does not preclude a finding of neglect. the fact that respondent complied with the provisions of her family services agreement does not overcome the effect of her prior decision to surrender custody of her children to the paternal grandmother, particularly given the trial court’s findings that the children’s paramount bond was with the paternal grandmother rather than with respondent and the difficulties that the children have experienced in being away from their grandmother. Although nothing in this opinion should be understood to preclude any possibility that a parent who has taken affirmative steps, including compliance with the directives of a district court or social services agency, would be able to overcome the effects of past behavior that would be otherwise inconsistent with his or her constitutionally protected right to parent his or her child, we see nothing in the trial court’s findings, in light of its analysis of the best interests of the children, that would prevent it from making the paternal grandmother the children’s guardian in this case, notwithstanding respondent’s compliance with the provisions of her family services agreement. Because respondent’s abdication of responsibility for the children in 2015 clearly contributed to their placement in HSA custody and because respondent had failed to obtain suitable housing until shortly before the 30 January 2020 permanency planning hearing despite the fact that HSA’s involvement began in early to mid-2018, we hold that the trial court’s findings of fact provide adequate support for its conclusion that the conditions that had led to the children’s removal from the family home continued to exist. Affirmed.

Dissent

(Earls, J.) This court’s decision puts parents who are trying to navigate challenging circumstances, including those who are experiencing domestic violence, in an impossible bind: while a parent who chooses to remain in an unsafe living environment with her children risks having her children adjudicated neglected or her parental rights terminated, a parent who escapes a dangerous living environment but needs time to get back on her feet risks having her parental rights displaced precisely because of her efforts to seek out a safe and stable home. This court’s decision also potentially signals to parents that even if they comply with every element of a case plan or family services agreement developed during a juvenile proceeding, their parental rights are always subject to displacement should a court decide that another caregiver offers a “better” home for their child. That is contrary to what our statutes provide and what the constitution requires. Therefore, I respectfully dissent. In re B.R.W. (Lawyers Weekly No. 010-052-22, 72 pp.) (Samuel Ervin, J.) (Anita Earls, J., dissenting) On appeal from the Court of Appeals. Appealed from Yadkin County District Court (Jeanie Houston, J.) James Freeman for petitioner; Paul Freeman for guardian ad litem; Thomas Diepenbrock for respondent. 2022-NCSC-50

Civil Practice UVTA – Agency – Partnerships – Real Property – Defrauding a Creditor During litigation in which plaintiff ultimately won a large judgment against a real estate developer, that developer surreptitiously sold real property to defendants – the developer’s partner in a joint venture to build a mixed-use development on the developer’s land and defendants’ adjacent land. Since defendants and the developer were partners, the developer’s knowledge is imputed to defendants, so defendants did not acquire the land as a good-faith purchaser. We reverse the Court of Appeals’ decision to uphold the trial court’s finding under the Uniform Voidable Transfers Act (UVTA). Plaintiff’s claim under the Unfair and Deceptive Trade Practices Act is not properly before us. Remanded.

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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 23, 2022

Background

Plaintiff sold land to Stoney Sellars at below-market rates in exchange for his promise to build affordable housing. Instead, Sellars sold most of the land to market-rate residential builders at an enormous profit. Sellars’ company, Stonehunt, LLC, entered into a joint venture with defendant to develop the rest of the land, along with defendants’ adjacent land, as a mixed-use development. However, facing litigation from plaintiff, Stonehunt sold its remaining land to defendants in order to defraud plaintiff as a judgment creditor. StoneHunt and defendants agreed to fully conceal their pending land transaction until it was too late for plaintiff to attempt to prevent the sale. The sale and the distribution of the sale proceeds left StoneHunt unable to pay its bills, and it filed for bankruptcy. Plaintiff filed suit against defendants, seeking to avoid the transfer. The trial court entered a judgment dismissing plaintiff’s lawsuit against defendants. The trial court made extensive findings and conclusions which detailed a calculated scheme by Sellars and StoneHunt to fraudulently liquidate the subject property and to hide the monetary proceeds from legitimate creditors. Despite its express recognition of the width and depth of StoneHunt’s fraud, the trial court nonetheless concluded that defendants “acted in a commercially reasonable manner” in their acquisition of the property and “did not engage in fraudulent activities.” The trial court further concluded that defendants had “established and met its burden of proof to show that it was a good faith purchaser of the Subject Property,” and lamented that its decision and its designation of defendants as good faith purchasers would likely leave plaintiff with little recourse in collecting the $7 million owed by StoneHunt to plaintiff for StoneHunt’s breach of their contract.

Discussion

We conclude that defendants were imputed with the knowledge of their co-principal’s fraudulent intent by virtue of the principal-agent relationship which existed between the parties pursuant to common law. Therefore, the Court of Appeals erred in affirming the trial court’s determination that defendants were good faith purchasers of the subject property. In order to show that they were good-faith purchasers under the UVTA, defendants had the burden of proving both that they (1) took title to the subject property in good faith from StoneHunt, which was defendants’ co-principal in the joint real estate development venture, and (2) bought the subject property for a reasonably equivalent value which it gave to the debtor StoneHunt. A principal is deemed to know facts known to his or her agent if they are within the scope of the agent’s duties to the principal, unless the agent has acted adversely to the principal. The creation of a business partnership constitutes each member an agent of the others in matters appertaining to the partnership and within the scope of its business. Defendants and StoneHunt were business partners engaged in a joint venture to develop the subject property by erecting a mixed-use project. As

co-principals in this endeavor, both parties were recognized as agents for one another—under both statutory and common law—in matters which involved the purpose and scope of the business partnership. StoneHunt’s subsequent relinquishment of the subject property was in furtherance of the purpose and scope of its business partnership with defendants. Defendants are charged with the knowledge of StoneHunt’s fraudulent relinquishment of title to the subject property, as defendants are deemed to know the facts which are known by StoneHunt regarding StoneHunt’s desire to convey the subject property prior to the subject property being reached by plaintiff, in its capacity as StoneHunt’s creditor, to satisfy plaintiff’s $7 million judgment against StoneHunt. There is no evidence in the record, nor any legal argument advanced by defendants, that an adverse interest between StoneHunt and defendants existed. The imputation of knowledge to defendants of those facts which were known to StoneHunt at the time of the conveyance operates to defeat defendants’ claim that it was a good faith purchaser for value of the land at issue. Defendants were not entitled to protection under G.S. § 39-23.4(b) because (1) the transfer was to an insider, (2) the transfer was concealed, (3) StoneHunt had been sued, (4) the transfer was of substantially all of Stonehunt’s assets, (4) there was evidence that the purchase price was significantly less than the land’s worth, and (5) StoneHunt was insolvent after the transfer. Reversed in part and remanded.

Dissent

(Barringer, J.) The Court of Appeals correctly held that the trial court’s determination that defendant Midtown Area Partners (MAP) was a good faith purchaser of the subject property was a finding of fact that was supported by competent evidence. Therefore, this court should affirm the decision of the Court of Appeals. A full consideration of the evidence before the trial court—including the trial court’s consistent denial of plaintiff’s claims to the title of the subject property, MAP’s independent efforts to ensure that the subject property’s title was unencumbered, and the fact that MAP paid a reasonably equivalent value for the subject property— dictates that this court should affirm the decision of the Court of Appeals. Cherry Community Organization v. Sellars (Lawyers Weekly No. 010053-22, 42 pp.) (Michael Morgan, J.) (Tamara Barringer, J., joined by Paul Newby, C.J., concurring in part and dissenting in part) (Philip Berger, J., not participating) On discretionary review from the Court of Appeals. On appeal from Mecklenburg County Superior Court (Eric Levinson, J.) Scott Miskimon, Kerry Shad and Mitchell Armbruster for plaintiff; Roy Michaux and Matthew Houston for defendants. 2022-NCCOA-62

Domestic Relations Parent & Child – Termination of Parental Rights – Case Plan – Near Completion – Positive Drug Tests Although the respondent-father tested positive at some of his drug screens, he also completed most of the other requirements of his case plan, including having employment

and suitable housing; paying child support; attending almost all visitations; and completing substance abuse, domestic violence and parenting programs. We cannot conclude that respondent failed to make reasonable progress towards correcting the conditions that led to “Annie’s” removal. We vacate the termination of respondent’s parental rights. In re A.N.H. (Lawyers Weekly No. 010-054-22, 28 pp.) (Anita Earls, J.) Appealed from Henderson County District Court (Emily Cowan, J.) Susan Davis for petitioner; Ryan Niland and John Still for guardian ad litem; Edward Eldred for respondent. 2022-NCCOA-47

Criminal Practice Constitutional – Speedy Trial Motion – Ineffective Assistance Claim – Attorney-Client Privilege In its hearing on defendant’s speedy trial motion, the trial court plainly erred by allowing one of defendant’s appointed attorneys to testify against him regarding the attorney’s strategy of delay. We affirm the Court of Appeals’ ruling that the trial court should not have admitted the attorney’s testimony, but we reverse the Court of Appeals’ grant of defendant’s motion to dismiss. Instead, we remand for further proceedings on defendant’s speedy trial claim. Defendant was charged with several offenses arising out of a 2012 motor vehicle accident. He was accused of driving drunk and killing two people. Defendant was arrested and jailed in 2012, but he was not tried until 2018. His pretrial speedy-trial motion was denied, based in part on defense counsel James Davis’ testimony that the delay was strategic. The trial court failed to recognize the presumption of prejudice to defendant created by the over six-year delay in his case before undertaking its review of the other factors from Barker v. Wingo, 407 U.S. 514 (1972). As a delay approaches one year, it is generally recognized as long enough to create a prima facie showing that the delay was caused by the negligence of the prosecutor. Defendant did not assert the attorney-client privilege or workproduct privilege at the hearing on his speedy trial motion. And despite being represented by attorney Chris Sease at the hearing, there was no objection made on defendant’s behalf to any of Davis’s testimony. Therefore, we review for plain error. The attorney-client privilege attached to Davis’ testimony concerning his representation of defendant, which included both the testimony about his decision to engage in delay and any communications Davis had with defendant regarding his decision that flowed therefrom. According to the state, defendant waived the attorney-client privilege by filing his speedy trial motion. However, to demonstrate that defendant went along with Davis’s trial strategy, and thus that defendant was the cause of the delay, the state relied upon privileged communications between defendant and his attorney. The state has failed to demonstrate any exception that would allow the admission of testimony containing such privileged information absent a waiver.

Moreover, defendant was represented by counsel and was not allowed to file pro se motions. Therefore, such a legal nullity cannot be the basis of any sort of waiver of the attorney-client privilege in these circumstances. Furthermore, G.S. § 15A-1415(e) (limited waiver of the attorney-client privilege in relation to claims of ineffective assistance of counsel) cannot be read to imply a waiver of the attorney-client privilege upon the filing of a speedy trial motion, nor can a defendant be required to forfeit one constitutional right as a condition of asserting another. While Davis’ testimony concerning trial strategy was inadmissible as evidence, the testimony regarding his professional obligations and the backlog of cases that plagued the Rowan County courts was admissible, nonprivileged testimony about which Davis had personal knowledge. The court summed up the reasons for the delay in this case as administrative encumbrances such as “the extensive backlog in Superior Court cases.” Further, the court found that the state had taken no actions to deliberately delay the trial, had not been negligent in bringing the case to trial, and that defendant contributed to the delay through acquiescence. Because Davis was the state’s only witness from which this evidence was drawn out, then necessarily, these conclusions can only be based on his testimony. Thus, the erroneous admission of this evidence, and the trial court’s reliance thereon, seriously affected the fairness and integrity of the judicial proceeding and had a probable impact on its decision to deny the motion to dismiss. The trial court plainly erred in allowing Davis to testify to privileged communications and confidential trial strategy. On remand, the court is free to consider any other competent evidence the state may offer relevant to the reasons for the delay of the trial in this case. We also note that the trial court erred in finding that “the State has been significantly prejudiced by the length of the delay.” So finding, the trial court misapprehended Barker and improperly identified the state, rather than defendant, as the prejudiced party. The state has the calendaring authority to set a case for trial. Furthermore, the Sixth Amendment right to a speedy trial is a right granted to the defendant. Second, the trial court erred in concluding that the prejudice factor weighed decisively against defendant because he did not prove actual prejudice. The trial court may not find that a criminal defendant’s speedy trial claim is doomed merely because he does not demonstrate actual prejudice. Affirmed in part, reversed in part, and remanded.

Dissent

(Philip Berger, J.) By improperly removing the burden of proof from defendant and placing it squarely on the shoulders of the State, the majority effectively holds that the mere passage of time entitles a defendant to relief on a motion to dismiss for a purported speedy trial violation. In addition, the majority eliminates the requirement under Barker that a defendant demonstrate prejudice caused by the delay. Finally, the majority offers the shelter of privilege to defense coun-

12 / OPINION DIGESTS sel’s testimony despite the waiver of such privilege by defendant himself. Because defendant waived the attorney-client privilege, failed to prove that delay was attributable to the State, and failed to show prejudice, I respectfully dissent. Importantly, defendant’s ineffective assistance of counsel claim contained specific allegations of ineffective representation and a voluntary disclosure of privileged information, both of which result in a waiver of the attorney-client privilege. State v. Farook (Lawyers Weekly No. 010-055-22, 61 pp.) (Anita Earls, J.) (Philip Berger, J., joined by Paul Newby, C.J. & Tamara Barringer, J., dissenting) On discretionary review from the Court of Appeals. Appealed from Rowan County Superior Court (Anna Mills Wagoner, J.) John Congleton for the state; Sarah Holladay for defendant. 2022-NCSC-59

Domestic Relations Parent & Child – Termination of Parental Rights – Constitutional – Due Process – Imprisoned Parent Although this termination-ofparental-rights case was already outside its 90-day window, since (1) the respondent-father sought just a few days’ continuance until a Covid-19-related lockdown at his West Virginia prison was lifted, (2) his testimony was relevant to many of the factors the trial court considered, and (3) counsel had been unable to confer with his client because of the lockdown, the denial of respondent’s motion for a continuance violated his due process rights. We vacate the termination of respondent’s parental rights and remand.

Dissent

(Newby, C.J.) Despite being employed in the prison kitchen and receiving money from his family, respondent paid nothing toward “Caleb’s” support during the six months preceding the filing of the petition to terminate his parental rights. Respondent’s presence at the hearing would not have changed the trial court’s adjudication under G.S. § 7B-1111(a)(3); therefore, respondent cannot show prejudice. In re C.A.B. (Lawyers Weekly No. 010-056-22, 40 pp.) (Anita Earls, J.) (Paul Newby, C.J., joined by Philip Berger & Tamara Barringer, JJ., dissenting) Appealed from Alamance County District Court (Kathryn Whitaker Overby, J.) Jamie Hamlett for petitioner; Christina Freeman Pearsall for guardian ad litem; Mercedes Chut for respondent. 2022-NCSC-51

Domestic Relations Parent & Child – Termination of Parental Rights – Case Plan – Neglect Respondent allowed “Brian” to remain in foster care for more than 12 months without following the case plan designed to address the issues that led to Brian’s removal: domestic violence, substance abuse, mental health, stability, parenting, employment and medical care for Brian. Furthermore, respondent’s therapist testified that respondent was not capable of parenting, and

respondent admitted to her social worker that she was not ready to parent Brian. We affirm the termination of respondent’s parental rights. In re B.R.L. (Lawyers Weekly No. 010-057-22, 8 pp.) (Tamara Barringer, J.) Appealed from New Hanover County District Court (J.H. Corpening, J.) Jane Thompson for petitioner; Greg Crumpler for guardian ad litem; Sydney Batch for respondent. 2022-NCSC-49

Domestic Relations Parent & Child – Termination of Parental Rights – Willful Abandonment – Contact Information The respondent-father does not argue that he had any contact with “Becky” in the six months before the petitioner-mother filed a petition to terminate respondent’s parental rights; instead, respondent contends he had no way to contact or locate Becky. However, (1) respondent was friendly with petitioner’s family but never reached out to them to try to get in contact with Becky; (2) the address for petitioner and her husband was publicly available through the Register of Deeds; (3) respondent was able to go onto petitioner’s husband’s Facebook page and copy photos of Becky, but he never used this avenue to attempt to get into contact with Becky; and (4) respondent and petitioner’s main means of communication was Snapchat, but respondent did not try to contact Becky by reaching out to petitioner through Snapchat. The trial court’s findings that respondent acted willfully were supported by clear, cogent and convincing evidence. We affirm the termination of respondent’s parental rights. In re B.E.V.B. (Lawyers Weekly No. 010-058-22, 11 pp.) (Tamara Barringer, J.) Appealed from Brunswick County District Court (Pauline Hankins, J.) James Lea for petitioner; Anné Wright for respondent. 2022-NCSC-48

Criminal Practice Search & Seizure – DWI – Checking Station – Brown Factors The primary programmatic purpose of the checking station at which defendant was stopped was to check driver’s licenses, and the trial court’s unchallenged findings of fact show that all three prongs of Brown v. Texas, 443 U.S. 47 (1979), were met: (1) the public interest in ensuring compliance with motor vehicle laws is a well-established and important public concern; (2) the checking station was on a heavily traveled thoroughfare during a timeframe (12:15 a.m. to 2:00 a.m.) conducive to apprehending impaired drivers; and (3) all drivers were stopped, the seizure was of short duration for most drivers, and the checking station was operated within specific restraints such that it was appropriately tailored to address its stated purpose. Consequently, the checking station was reasonable under the Fourth Amendment. We reverse the Court of Appeals’ reversal of the trial court’s denial of defendant’s motion to suppress. State v. Cobb (Lawyers Weekly No. 010-059-22, 14 pp.) (Philip Berger, J.) On appeal from the

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 23, 2022

Court of Appeals. Appealed from Harnett County Superior Court (Claire Hill, J.) Kindelle McCullen for the state; Wyatt Orsbon for defendant. 2022-NCSC-57

Domestic Relations Parent & Child – Termination of Parental Rights – Motion to Continue Even if the respondent-mother – who lived in Ohio – received only five days’ notice of the exact date the termination-of-parental-rights hearing was scheduled to occur (February 10, 2021), since she had known for months that the hearing would occur during the week of February 8, 2021, and since she has provided no specific reasons for her absence, respondent has not shown that the trial court abused its discretion in refusing to once again continue this hearing that was already far beyond the 90-day period set by G.S. § 7B-1109(d). We affirm the trial court’s termination of respondent’s parental rights. In re L.A.J. (Lawyers Weekly No. 010-060-22, 7 pp.) (Philip Berger, J.) Appealed from Gaston County District Court (John Greenlee, J.) No brief for petitioners or guardian ad litem; Leslie Rawls for respondent. 2022-NCSC-54

Domestic Relations Parent & Child – Termination of Parental Rights – Plan Progress The trial court’s oral statements praising the respondent-mother’s case plan efforts did not preclude the court from determining that termination of respondent’s parental rights was in “Scott’s” best interests. The trial court’s findings demonstrate that it considered the dispositional factors set forth in G.S. § 7B-1110(a) and performed a reasoned analysis weighing those factors. Thus, the trial court did not abuse its discretion when it determined that termination of respondent’s parental right was in Scott’s best interests. We affirm the termination of respondent’s parental rights. In re S.D.C. (Lawyers Weekly No. 010-061-22, 11 pp.) (Philip Berger, J.) Appealed from Catawba County District Court (Clifton Smith, J.) Marcus Almond for petitioner; Michelle FormyDuval Lynch for guardian ad litem; Garron Michael for respondent. 2022-NCSC-55

Domestic Relations Parent & Child – Constitutional – Appeals – Issue Preservation Despite being on notice that DSS and the guardian ad litem were recommending that the trial court change the primary permanent plan for “Jimmy” and “Lola” from reunification to guardianship, the respondent-father failed to assert before the trial court his constitutional argument concerning his paramount interest in the custody of his children. Consequently, respondent failed to preserve this issue for appeal. We affirm the Court of Appeals’ ruling on issue preservation.

Concurrence

(Earls, J.) Limited to the narrow

facts of this case, we hold today that, while a parent’s rights are protected by a constitutionally based presumption, when a child is already in the custody of a nonparent by valid court order, as in these juvenile court proceedings, a parent on notice that a court may enter a permanent order of guardianship must raise the objection that the constitutionally required findings are not present in order to preserve that issue for appeal. In re J.N. (Lawyers Weekly No. 010-062-22, 10 pp.) (Philip Berger, J.) (Anita Earls, J., concurring) On discretionary review from the Court of Appeals. Appealed from Forsyth County District Court (Lisa Menefee, J.) Theresa Boucher for petitioner; Nancy Litwak for guardian ad litem; Troy Shelton and Daniel Gibson for juveniles’ guardians; Benjamin Kull for respondent. 2022-NCSC-52

Criminal Practice Traffic Stop – Sticker Misplacement – Reasonable Mistake At the time that defendant was stopped for a misplaced renewal sticker violation, there was no regulation directing her where to place the sticker. Nevertheless, the instructions on her registration card instructed her to place the sticker on the upper right corner of her license place, and she had placed the sticker on the upper left corner of the plate. If the arresting officer was mistaken in stopping defendant’s car, it was a reasonable mistake. We affirm the trial court’s denial of defendant’s motion to suppress the methamphetamine found in her car during the traffic stop. At the time that defendant was stopped for a misplaced renewal sticker violation, G.S. § 20-66(c) required her to place the sticker “in the place prescribed by the [DMV] Commissioner.” The Commissioner had not yet updated our Administrative Code to account for the switch from a twosticker system (one for the month and one for the year) to a single-sticker system (with the month and year on the same sticker). Nevertheless, G.S. § 20-41 also required the Commissioner to create and provide the registration card received with the sticker, and that registration card instructed vehicle owners to place the sticker on the upper right side of their license plates. Even assuming the officer was not correct in his interpretation of the law, any mistake made by the officer was reasonable. There is no controlling decision in our caselaw stating that the information on the registration card cannot support a prosecution under § 20-66(c). And Heien v. North Carolina, 574 U.S. 54 (2014), held that reasonable suspicion to justify a traffic stop can arise from an officer’s mistake of law, so long as the mistake is reasonable. The relevant law was ambiguous at the time of defendant’s traffic stop. It is not clear from the statute exactly where the single month/year sticker should be placed, only that it be displayed as “prescribed by the Commissioner.” Therefore, the officer relied on his “Law Enforcement Officers Quick Reference Statute Guide” and the information from the Commissioner on the back of the registration card to conclude that defendant had violated § 20-66(c), and there was reasonable suspicion to conduct the traffic stop on this ground. If the officer was mistaken, his mistake was reasonable. Affirmed.

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I May 23, 2022

State v. Amator (Lawyers Weekly No. 011-116-22, 7 pp.) (Chris Dillon, J.) Appealed from McDowell County Superior Court (Thomas Davis, J.) Donna Wojcik for the state; Sharon Smith for defendant. 2022-NCCOA-293

Criminal Practice Constitutional – Request for Counsel – Custodial Interrogation – Statutory Rape Once his Miranda rights were read to him during custodial police interrogation, defendant said, “I’ll talk to you but I want a lawyer with it and I don’t have the money for one.” Given the ambiguity of defendant’s statement, police detectives were entitled to clarify defendant’s wishes with follow-up questions, and defendant subsequently agreed to talk to them. Defendant’s right to counsel was not violated. We find no error in defendant’s conviction for statutory rape.

Background

After a shooting at his house, defendant went to the police station for non-custodial questioning. While he was there – and knew he was free

to leave – detectives questioned him about his relationship with the victim. Defendant, who was born on 20 May 1982, admitted to engaging in vaginal intercourse with the victim, who was born on 30 August 2001, multiple times in 2017 and 2018. Defendant was placed under arrest and read his Miranda rights. At that point, defendant said, “I’ll talk to you but I want a lawyer with it and I don’t have the money for one.” The detectives asked several questions to clarify defendant’s wishes. Detective Trogden told defendant he did not see how talking with the detectives “could hurt [defendant],” and “[he] want[ed] to make sure [defendant was] willing to speak[.]” Detective Trogden then asked defendant if he wished to speak without a lawyer present, if he wished to speak with the detectives, and if he wanted a lawyer present for questioning. Detective Trogden asked defendant to respond “yes or no” to whether defendant would answer questions without an attorney present. Defendant answered in the affirmative and signed a waiver of his right to counsel. Defendant continued to speak with the detectives; however, defendant did not expand on his earlier confession after his arrest.

Defendant was convicted of statutory rape of a child 15 years or younger.

Right to Counsel

Defendant was not in custody when he first confessed and voluntarily answered the questions of the detectives. Therefore, an analysis of a request-for-counsel inquiry is inapplicable to defendant’s initial confession. Defendant’s statements made after his formal arrest are subject to a request-for-counsel inquiry, as these statements were made during a custodial interrogation. When defendant said, “I want a lawyer with it,” in light of his initial voluntary confession, “it” could have referred to the charge, the expected trial, or the interrogation. The detectives repeatedly tried to clarify defendant’s request, a practice labeled by this court as “good police practice.” Defendant then agreed to continue the interrogation without counsel and signed a waiver of counsel. In the factual context of this case, a reasonable police officer would not understand defendant’s statement as an unambiguous request for counsel during interrogation. The trial court’s findings were supported by competent evidence to show defendant’s request was am-

biguous at the time the request was made, and the detective’s statements were an attempt to clarify defendant’s statements. Therefore, the statements made after defendant’s arrest were not subject to suppression.

Offense Dates

Victim testified that defendant engaged in vaginal intercourse with her in 2016 when she was 14 years old, and defendant was 19 years her elder. Defendant admitted to having vaginal intercourse with Victim in 2017, but it is unclear whether these occasions were before or after Victim’s fifteenth birthday. The date of the vaginal intercourse listed on the indictment was 2017. Variance between the date on the indictment and Victim’s testimony is not enough to justify a motion to dismiss, as the date given on an indictment for statutory rape is not an essential element of the crime, and courts are lenient concerning dates in cases involving the sexual abuse of minors. Therefore, Victim’s testimony alleging vaginal intercourse in 2016 between her and defendant—when Victim was 14—is sufficient to survive a motion to dismiss. No error.

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14 / OPINION DIGESTS Concurrence

(Arrowood, J.) I write separately to address defendant’s request for counsel during the custodial interrogation. Although defendant initially expressed some willingness to speak with police, his statements were also clear that he wanted a lawyer before doing so. Defendant stated that he would talk to police, “but I want a lawyer with it . . . [and] I don’t have the money to get one . . . .” This was an unequivocal, unambiguous request for counsel, combined with a statement that defendant could not afford to hire counsel. Once defendant told Detective Trogdon that he wanted a lawyer, the custodial interrogation should have ceased, and Detective Trogdon’s statements, including stating how he did not see how talking to police “could hurt [defendant],” were improper. This is especially clear given defendant’s later statement reasserting his desire for the assistance of counsel. Although defendant eventually did agree to talk with the detectives after a more detailed inquiry, the interrogation should have ceased prior to that point. Nevertheless, because defendant’s initial confession was made voluntarily and prior to custodial interrogation, the trial court’s decision regarding the suppression of defendant’s later statements amounts to harmless error. State v. Darr (Lawyers Weekly No. 011-117-22, 19 pp.) (Jeffery Carpenter, J.) (John Arrowood, J., concurring) Appealed from Randolph County Superior Court (Bradford Long, J.) Marilyn Ozer for defendant; Joseph Hyde for the state. 2022-NCCOA-296

Criminal Practice DWI – Constitutional – Medical Blood Draw – Other Overwhelming Evidence Even if G.S. § 8-53, which allows a judge to compel disclosure of confidential medical information “if in [the judge’s] opinion disclosure is necessary to a proper administration of justice,” was not a constitutional method for law enforcement to obtain defendant’s medical records – including tests results showing his blood alcohol concentration was 0.12 – given the other overwhelming evidence of defendant’s intoxication, any error in the admission of such evidence was harmless beyond a reasonable doubt. We find no prejudicial error in defendant’s convictions for driving while impaired, habitual impaired driving, and attaining habitual felon status. The other evidence of defendant’s intoxication came in the form of testimony from a Taco Bell employee who saw defendant at the drive-through window and called the police after he drove away and from three police officers who observed defendant’s odor of alcohol, slurred speech, glassy eyes, unsteadiness, difficulty standing up straight, signs of impairment during field sobriety tests, a positive test for alcohol on a portable breath test and lack of cooperativeness. The overwhelming evidence of defendant’s guilt of driving while impaired by driving “[w]hile under the influence of an impairing substance” under G.S. § 20-138.1(a)(1) renders any error in the denial of defendant’s motion to suppress his medical records and the subsequent admission of those records at trial harmless beyond a reasonable doubt. State v. Kitchen (Lawyers Weekly No. 011-118-22, 21 pp.) (Allegra

Collins, J.) Appealed from Carteret County Superior Court (Joshua Willey, J.) Kathryne Hathcock for the state; Kellie Mannette for defendant. 2022-NCCOA-298

Criminal Practice Confession – First Impression – Surrender Negotiations When sheriff’s deputies went to defendant’s home to arrest him for statutory rape and indecent liberties, defendant locked himself in his bedroom and threatened suicide. Defendant was not “in custody” while deputies negotiated his safe exit from his bedroom, so the lack of Miranda warnings did not require the trial court to suppress a confession – to possessing methamphetamine – that defendant made during the negotiations. We remand one judgment for correction of a clerical error. Otherwise, we find no error in defendant’s convictions of statutory rape of a child by an adult, five counts of indecent liberties with a child, two counts of statutory sex offense with a child by an adult, and possession of methamphetamine. At the time of the negotiations, defendant was not under formal arrest. Law enforcement cannot be expected to issue Miranda warnings when attempting to arrest an individual. Miranda warnings are only required once an arrest has been made or law enforcement is able to exercise a degree of control equivalent to a formal arrest. Defendant’s actions prevented the deputies from placing defendant under formal arrest or exercising any degree of control equivalent to a formal arrest. Because defendant had barricaded himself in the bedroom and refused to exit, defendant was not in custody. Thus, we need not reach the issue of whether the deputies’ conversation with defendant amounted to “interrogation,” as defendant argues, because defendant was never in custody; therefore, Miranda warnings were not required. State v. Conner (Lawyers Weekly No. 011-119-22, 9 pp.) (Fred Gore, J.) (Hunter Murphy, J., concurring in result only without separate opinion) Appealed from McDowell County Superior Court (Steve Warren, J.) Tamika Henderson for the state; Drew Nelson for defendant. 2022-NCCOA-295

Criminal Practice Attorney-Client Privilege – Prosecutor’s Questions – No Prejudice – Defendant’s Credibility The trial court should have sustained defendant’s objection to the prosecutor’s questions about defendant’s communications with his lawyer; however, the questions were posed to impeach defendant’s credibility, and defendant had already admitted that he had lied to the police about what happened on the morning that his girlfriend’s young son passed away. Defendant had also already testified that he had not told anyone about the version of events he testified to at trial in the two years between lying to the police and his trial. The trial court’s error was not prejudicial. We find no prejudicial error in defendant’s conviction of first-degree murder. Defendant testified that he had told police a false version of events and that he had not told anyone the

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true version of events until his testimony at trial. The prosecutor asked defendant if – in the two years between the child’s death and his trial – he had not told his lawyer the version of events he testified to at trial. Because the prosecutor’s questions probing the substance of defendant’s communications with counsel were pertinent to the substance of defendant’s communications with counsel, the communications were privileged and the prosecutor’s questions should not have been permitted. Nonetheless, given defendant’s prior admissions on the stand, his credibility was already at issue. Defendant has not established prejudice sufficient to warrant a new trial. The trial court instructed the jury, “When an adult has exclusive custody of a child for a period of time during which that child suffers injuries that are neither self-inflicted nor accidental, there is sufficient evidence to create an inference that the adult intentionally inflicted those injuries.” This language – especially in the context of the rest of the jury instructions – cannot reasonably be interpreted as meaning that the basic facts, if proven necessarily create an inference of intent. Viewing the jury instruction contextually and in its entirety, the instruction provides no reasonable cause to believe the jury was misled or misinformed by the instruction. No prejudicial error. State v. Graham (Lawyers Weekly No. 011-120-22, 15 pp.) (Jefferson Griffin, J.) Appealed from Gaston County Superior Court (David Phillips, J.) John Barkley for the state; Dylan Buffum for defendant. 2022-NCCOA-297

Criminal Practice Jury Instructions – Solicitation to Murder – First & Second Degree – First Impression Since the state’s evidence was that defendant asked a fellow jail inmate to murder defendant’s girlfriend when the other inmate was released, if the jury believed the state’s evidence, the jury would necessarily find premeditation. Accordingly, any error in the trial court’s instruction to the jury on the lesser included offense of solicitation to second-degree murder was harmless. We find no reversible error in defendant’s convictions of solicitation to commit murder, two violations of domestic violence protective orders, and hit and run with a motor vehicle.

Solicitation

Defendant was in jail awaiting trial after he twice violated his exgirlfriend’s domestic violence protective order and drove his truck into the back of her vehicle. Christian Capps was also in jail. He and defendant talked to each other about hating their ex-girlfriends and spoke about killing each other’s ex-girlfriends. When defendant learned that Capps would soon be released, he gave Capps a detailed map that he had drawn showing where his exgirlfriend, Carrie Thomas, lived with physical descriptions of Thomas and her car. Defendant told Capps, “If you go home, you kill my old lady, and I’ll kill your old lady in return.” Defendant suggested that Capps could kill Thomas either by (1) going to her home, making her drink liquor until she passed out, then injecting her with heroin to make it seem like an overdose or (2) running “up in the

house Rambo-style and kill[ing] everyone there execution-style.” Defendant was charged with solicitation to commit first-degree murder. The trial court instructed the jury on solicitation to commit second-degree murder. We have not found a prior appellate opinion directly addressing jury instructions on lesser-included offenses of solicitation crimes. But following the reasoning of State v. Suggs, 117 N.C. App. 654, 453 S.E.2d 211 (1995), we hold that a defendant indicted for solicitation of a felony may be properly convicted of solicitation to commit a lesser-included offense not named in the indictment when the conviction for soliciting the unnamed lesserincluded offense is supported by the evidence. In this case, any error in the trial court’s instruction was harmless. Based on the evidence presented, if defendant solicited Capps to kill Thomas with malice upon Capps’s release from prison, he necessarily asked Capps do so in the future and according to defendant’s suggested plans. Defendant’s solicitation of murder therefore included and required premeditation and deliberation by Capps. Thus, to the extent the evidence convinced the jury beyond a reasonable doubt that defendant solicited Capps to kill Thomas with malice once he was released from prison, that same evidence unavoidably established defendant solicited a premeditated and deliberated homicide with the specific intent to kill. In light of the evidence in this case, there is no indication that, absent the error, the jury probably would have reached a different verdict. Nor does it appear that the trial court’s instruction frustrated defendant’s ability to defend himself from the crime charged, as his defensive strategy was to persuade the jury that there was no credible evidence he asked Capps to kill Thomas at all, regardless of any premeditation, deliberation, or specific intent. Because any error in the jury instruction appears harmless, defendant is not entitled to a new trial.

Other Issues

In one of his many expletive-laden disruptions of his trial, defendant expressed (1) dissatisfaction with his appointed counsel’s cross-examination and (2) his belief that counsel, who is Black, was working against him because he was an accused white supremacist. The trial court engaged in a lengthy colloquy with defendant and concluded that defendant’s dissatisfaction with counsel did not constitute an absolute impasse, but that defendant was acting in a manner to disrupt the proceedings and to inject error into the proceeding. These determinations are assuredly supported by the record, and we will not disturb them. Defendant contends the trial court should have intervened ex mero motu with respect to several parts of the prosecutor’s closing argument. We disagree. When the prosecutor urged the jury to believe Capps over defendant, she pointed out reasons for them to do so, and she left the ultimate credibility determination up to the jury. The prosecutor’s references to defendant as “unpredictable,” “impulsive,” “angry,” “obsessed,” “frustrated,” and “dangerous” are derived from the evidence, are not mere opinions or name-calling, and were not so incendiary as to warrant objection at the

OPINION DIGESTS / 15

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time they were made. When read in context, the prosecutor’s statement that “Defendant’s presumption of innocence has been removed and replaced with proof beyond a reasonable doubt,” is simply an argument that the state had offered sufficient evidence to rebut the presumption that defendant was innocent and had shown defendant’s guilt beyond a reasonable doubt. Defendant also complains about the prosecutor’s argument that a guilty verdict was necessary “to protect society, other members of Edgecombe County and in particular this member of society. . . By your verdict, you not only protect [] Thomas, but every other vulnerable female in Edgecombe County that might find herself in the unfortunate position of being in a domestic relationship with defendant.” Read in context, the prosecutor’s statements disclose they were made for the permissible purpose of calling the jury’s attention to its role as representatives of the community and out of specific deterrence concerns. She did not impermissibly suggest that the jury would have to answer to the victim or the public if they failed to find defendant guilty, nor did she ask the jury to determine defendant’s guilt or innocence as if the jurors themselves were victims. The prosecutor’s reference to Thomas and the specific deterrent effect of finding defendant guilty was likewise not improper. No prejudicial error. State v. Strickland (Lawyers Weekly No. 011-121-22, 28 pp.) (Lucy Inman, J.) (Hunter Murphy, concurring in part and concurring in result only in part without separate opinion) Appealed from Edgecombe County Superior Court (James Hardin, J.) Derek Hunter for the state; William Spence for defendant. 2022-NCCOA-299

both multiple underinsured tortfeasors and multiple UIM insurance carriers. However, we agree with the trial court’s application of the statute. The applicable limit of combined UIM coverage is the difference between the total amount paid under all exhausted liability policies and the total limits of all applicable UIM policies. When the combined liability-coverage payments of $200,000 are deducted from the available UIM coverage of $200,000, the result is $0. Plaintiff also argues that the trial court failed to acknowledge that one of the UIM carriers, State Farm, waived its subrogation rights and thus cannot be entitled to reimbursement of the $100,000 in UIM coverage that it advanced while reserving its right to reimbursement. However, when the underlying liability insurers exhausted the limits of their two $100,000 policies by tendering the full limits, the UIM carriers had no duty to advance any payments because they owed nothing under their policies. Because State Farm did not have any obligation to advance payment under its UIM policy, the statutory provision governing waiver of subrogation rights upon failure to timely advance payment does not apply. Affirmed. Tutterow v. Hall (Lawyers Weekly No. 011-122-22, 11 pp.) (Richard Dietz, J.) Appealed from Davie County Superior Court (Joseph Crosswhite, J.) Henry Van Hoy and Katherine Freeman for plaintiff; Jeffrey Kuykendal, Kara Bordman, Kenneth Rotenstreich and Robert Ratch for defendants. 2022-NCCOA-300

Insurance

Even though a former jailer could not remember encountering defendant after he was arrested, the jailer recalled creating a jail incident report about the methamphetamine he found on defendant’s person. The state laid an adequate foundation for admission of the report based on the jailer’s usual procedure for preparing such reports. Although a recorded recollection – like the jail incident report here – may not be received as an exhibit, since the entire report could have been read to the jury, defendant has failed to show prejudice in the publication of the report to the jury. We find no error in defendant’s convictions for possession of methamphetamine and attaining habitual felon status. However, we remand for resentencing. Defendant argues that his trial counsel violated State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), during closing arguments during the habitual-felon phase of his trial by admitting his guilt to prior felonies. Under State v. Womack, 211 N.C. App. 309, 712 S.E.2d 193 (2011), Harbison has no application at a proceeding convened for the purpose of determining whether a defendant’s sentence should be enhanced because of his prior criminal conduct. In any event, counsel did not admit guilt; instead, she said she trusted the jury to exercise its judgment and to examine the state’s exhibits. Finally, despite a diligent effort, defendant was unable to obtain a copy of his prior record level (PRL) worksheet. Without the PRL work-

Auto – UIM – Multiple Tortfeasors & Policies – First Impression Although a passenger who was killed in a motor vehicle accident was entitled to $100,000 in underinsured motorist coverage under two separate policies, since the negligence of two tortfeasors – each with liability coverage of $100,000 – caused the passenger’s death, the amount of UIM coverage payable to the passenger’s estate is $0. We affirm the trial court’s calculation of UIM coverage. G.S. § 20-279.21(b)(4) provides, “In any event, the limit of underinsured motorist coverage applicable to any claim is determined to be the difference between the amount paid to the claimant under the exhausted liability policy or policies and the limit of underinsured motorist coverage applicable to the motor vehicle involved in the accident. Furthermore, if a claimant is an insured under the underinsured motorist coverage on separate or additional policies, the limit of underinsured motorist coverage applicable to the claimant is the difference between the amount paid to the claimant under the exhausted liability policy or policies and the total limits of the claimant’s underinsured motorist coverages as determined by combining the highest limit available under each policy. . . .” Our state’s appellate courts have not yet interpreted how this statutory language applies in a case involving

Criminal Practice Evidence – Jail Incident Report – Recorded Recollection – IAC Claim – Sentencing – Prior Record Level Worksheet

sheet, we are unable to determine (1) whether the trial court impermissibly assigned points to multiple convictions from a single court week, (2) whether all the elements of the present offense are included in any prior offense for which the offender was convicted and (3) whether the trial court impermissibly calculated defendant’s prior record level using any of the convictions used to establish habitual felon status. No error; remanded for resentencing. State v. Turner (Lawyers Weekly No. 012-163-22, 24 pp.) (Allegra Collins, J.) Appealed from Cherokee County Superior Court (William Coward, J.) Charles Whitehead for the state; Anne Gomez for defendant. 2022-NCCOA-254

Trusts & Estates Breach of Trust – Constructive Fraud – Mandatory & Discretionary Duties A trust allows its trustees to make distributions to beneficiaries and requires the trustees to pay the trust’s share of upkeep on a house jointly owned by the trust and the third wife of the late settlor. The widow’s complaint adequately states claims of breach of trust based on the trustees’ failure to make such payments. We affirm in part and reverse in part the trial court’s grant of the trustees’ motion to dismiss.

Allegations

The late settlor had a trust drafted at the law firm at which his defendant-daughter (Sarah) and her defendant-husband (Craig) practiced law. The beneficiaries of the trust were the settlor’s third wife (the plaintiff-widow) and all the settlor’s issue. As successor trustees, the trust named Sarah and Craig, as well as the widow’s former husband, Russell Lee Stephenson, Jr. Believing that (1) his appointment had been an error; (2) the widow’s son, Russell Lee Stephenson, III, was the intended third trustee, and (3) the trust’s beneficiaries would appoint Stephenson III in his stead, Stephenson Jr. resigned as trustee. Stephenson III was not appointed as a trustee, leaving only Sarah and Craig as trustees once the settlor passed away. The trust owns an 89 percent interest in the home in which the widow lives, and the widow owns the remaining 11 percent. The trust requires the trustees to pay 89 percent of the upkeep on the house. According to the complaint, the trustees have refused to do so. The trust also allows the trustees to make distributions to beneficiaries for their health, maintenance, and support. The trustees have made such distributions to Sarah and her children but not to the widow.

Individual Capacity Claims

The widow’s claim challenging the validity of the trust is time-barred. Such claims must be filed within three years of the settlor’s death. Here, the settlor died on 22 February 2014, but plaintiff did not bring this suit until 29 May 2020. The widow has not alleged facts that would support a finding that Sarah and Craig, in their individual capacities, owed the widow a fiduciary duty. Accordingly, the complaint does not state a claim for constructive fraud against Sarah and Craig in their individual capacities.

Defendants as Trustees

Determining whether defendants are liable for making unauthorized distributions for health, maintenance, and support to Sarah and their children while withholding distributions for health, maintenance, and support from plaintiff and for failing to fully reimburse plaintiff for the trust’s share of the cost to maintain the home plaintiff jointly owns with the trust will require a developed factual record of all distributions of trust property and potentially other evidence, such as evidence in the form of expert opinion regarding whether attributing distributions to plaintiff for health, maintenance, and support for continuing to live in the home was consistent with the trustees’ duties to administer the trust in good faith, loyally, impartially, and prudently with respect to the interests of all beneficiaries, including plaintiff. Because plaintiff’s claims for breach of trust are legally sufficient, and resolution of these claims will require consideration of matters outside the pleadings and the exhibits thereto, the trial court erred in dismissing these claims. In its constructive fraud claim, the complaint essentially alleges that including Stephenson Jr. as a trustee rather than Stephenson III was either a simple mistake or some kind of ploy and that Craig induced Stephenson Jr. to resign as a trustee on the pretext that Stephenson III would be appointed upon Stephenson Jr.’s resignation while knowing full well that a majority of the settlor’s adult issue – Craig’s wife and children – would refuse to appoint Stephenson III as a trustee, which they in turn refused to do once Stephenson Jr. resigned. Stephenson Jr. was the only obstacle to defendants’ control of the trust before his resignation. Once he resigned, it is alleged that defendants exercised the discretionary powers created by the trust and conferred upon them as trustees in a manner that breached their duties to plaintiff as trustees, thereby benefitting Sarah and defendants’ children at plaintiff’s expense. The complaint states a valid claim for constructive fraud against defendants as trustees. The complaint also alleges that defendants agreed to take control of the trust by securing Stephenson Jr.’s resignation and then made allegedly improper distributions while withholding distributions from plaintiff as part of a deliberate, premeditated plan. The trial court erred in dismissing the civil conspiracy claim against defendants in their capacities as trustees. Affirmed in part, reversed in part. Fox v. Fox (Lawyers Weekly No. 011-123-22, 28 pp.) (Darren Jackson, J.) Appealed from Wake County Superior Court (Bryan Collins, J.) Amiel Rossabi and Gavin Reardon for plaintiff; Anthony Penry and Mark Stafford for defendants. 2022-NCCOA-334

Insurance State Health Plan – External Review – Statutory Framework – Subject Matter Jurisdiction As an employee of a state agency and a participant in the State Health Plan, plaintiff exhausted her administrative remedies by seeking external review of the denial of her medical

16 / OPINION DIGESTS claim. However, when the external review did not go her way, plaintiff should have continued to follow the framework set out in G.S. Chapter 58 by seeking further review before the Industrial Commission. Instead, she filed suit in superior court. The superior court lacked subject matter jurisdiction. We affirm the superior court’s dismissal of plaintiff’s complaint. Birchard v. Blue Cross & Blue Shield of North Carolina, Inc. (Lawyers Weekly No. 011-124-22, 11 pp.) (John Tyson, J.) Appealed from Orange County Superior Court (Alyson Adams Grine, J.) Barry Nakell for plaintiff; Christopher Kelly and Kelsey Dorton for defendant. 2022-NCCOA-333

Commercial Statutory Lien – Vehicle Storage – Real Property – Foreclosure While respondent’s principal was battling criminal charges, respondent’s real property was foreclosed on, and the new owner – as lawful possessor – had respondent’s truck towed off the property by petitioner, who charged $40 a day to store the truck at its facility. Although Eulanda Elliott purported to act on behalf of respondent when she inquired about getting the truck out of storage, Elliott had no legal authority to act on behalf of respondent. Accordingly, respondent did not present an authorized agent until its principal got out of prison and contacted petitioner. Petitioner’s claimed lien did not exceed legal limits. We affirm judgment for petitioner on its lien and petition to sell the truck.

Dissent

(Tyson, J.) The trial court found that petitioner’s principal, Glenn Bottoms, drove respondent’s truck when it was supposed to be in storage, crediting respondent $0.25 per mile for the 250 miles that Bottoms admitted to having driven the truck. The trial court also reduced the claimed lien for alterations and maintenance it deemed unnecessary. The trial court erred in its calculation of the reduction of the lien for Bottoms’ unlawful conversion and personal use of the truck. Respondent presented documentation showing the truck’s mileage increased by approximately 10,000 miles while it was purportedly in storage. Bottoms’ self-serving admission of using the truck for about 250 miles is not supported by any other competent evidence and is directly

C o nt inu e d f r o m 6 ►

discretionary condition but an inconsistency between descriptions in his oral sentence and written judgment. The court told Cisson that within 72 hours of release from prison, he was to report to the probation office in the district to which he was released, whereas the written judgment directed him to report to the district where he was authorized to reside. The government argued that there is no inconsistency because the district in which a defendant is released is the district in which the government has authorized him to reside. The court noted that while

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for guardian ad litem. 2022-NCCOA-335

Where four-year-old “Nancy” weighed only 19 pounds; had burn marks and scars; had very dry skin; was diagnosed with severe protein malnourishment, failure to thrive, development delays, and Norovirus; and gained four pounds while she was in the hospital, the trial court’s findings support its conclusion that DSS made reasonable efforts to prevent placement outside the home while taking in to consideration Nancy’s health and safety as the paramount concern. We affirm the trial court’s adjudication of Nancy as abused and neglected and its adjudication of Cameron, Naomi and Timothy as neglected. We also affirm the continuing suspension of visitation. Respondent-Mother contends the trial court abused its discretion in that it acted under a misapprehension of law when it believed it lacked discretion to grant Mother visitation. Mother specifically notes that the trial court stated that “there cannot be any visitation due to what’s set forth by superior court” and claims that this misapprehension of law constitutes an abuse of discretion. However, we do not construe the trial court’s remarks as an indication that it acted under a misapprehension of law. The trial court made findings as to charges pending against Mother in superior court, including a charge of

child abuse. The trial court then concluded as law that it was “not in the best interests of the juveniles to have visitation with the mother or father pursuant to N.C. Gen. Stat. § 7B905.1.” As the trial court’s findings of fact support its conclusion of law that it was not in the best interests of the children to see Mother, the trial court did not abuse its discretion when it declined to grant visitation to Mother. As to the respondent-Father, the trial court’s findings of fact show that Father created or allowed to be created a substantive risk of serious physical injury and serious emotional damage for Nancy; Naomi, Timothy, and Cameron all witnessed Nancy’s mistreatment and malnourishment; Father complied with only some of his case plan tasks; Father did not follow through with recommended psychiatric care; Father would not sign releases to allow DSS to learn about Father’s participation in counseling; and Father had a pending criminal charge for felony aiding and abetting child abuse. These unchallenged findings of fact amply support the trial court’s conclusion of law that visitation with Father was not in the best interests of the juveniles. The trial court did not abuse its discretion in denying visitation to Father. Father complains that the trial court failed to inform him of his right to move for a review of the trial court’s visitation plan. G.S. § 7B-905.1(d) now provides, “If the court waives permanency planning hearings and retains jurisdiction, all parties shall be informed of the right to file a motion for review of any visitation plan[.]” We agree with Father that the trial court was required to, but did not, inform him of his right for review of any visitation plan; however, this error was harmless because the trial court immediately scheduled the next hearing date and Father was aware of the newly scheduled hearing date. The trial court did not fail to inform Father of his right for review and waive permanency planning hearings, a situation for which the updated statute contemplates and provides. Thus, while the trial court erred in failing to inform Father of his right for review of any visitation plan, the error was harmless. Affirmed. In re N.L.M. (Lawyers Weekly No. 011-126-22, 29 pp.) (Allegra Collins, J.) Appealed from Guilford County District Court (Angela Foster, J.) Mercedes Chut for petitioner; Daniel Gibson and Richard Croutharmel for respondents; Keith Karlsson

different interpretations are possible (e.g., a defendant is released to a district where a prison physically sits rather than where he or she will live), Cisson waived his possible response to the government’s explanation when he failed to respond to it. “For this reason, we must hold that there is no inconsistency between the descriptions of the condition in the oral sentence and written judgment, and thus no Rogers error,” Motz wrote. Cisson’s second Rogers claim “fares no better,” the court held, rejecting his contention that the district court failed to adequately announce his discretionary conditions of supervised release by merely

stating that it would impose the “mandatory standard” conditions of release. An audio review of the sentencing revealed that the court said that it would impose the “mandatory and standard conditions.” Either way, Motz noted that the court made clear in Rogers that a court may satisfy its requirement to announce discretionary conditions by incorporating all Guidelines “standard” conditions when it announces a supervised release sentence. “The District of South Carolina has no standing order listing its own ‘standard’ conditions that differs from the Guidelines list of standard conditions found at U.S.S.G. §

5D1.3(c),” Motz wrote. “Thus, there is no other set of ‘standard’ 17 conditions to which the court could have been referring other than the Guidelines ‘standard’ conditions.” Circuit Judges G. Steven Agee and James Wynn Jr. concurred in the opinion. Erica Soderdahl of the Office of the Federal Public Defender in Greenville represented Cisson. Benjamin Garner of the Office of the U.S. Attorney in Columbia represented the government. The 17-page decision is U.S. v. Cisson (Lawyers Weekly No. 001072-22). The full text of the opinion is available online at sclawyersweekly.com.

contracted by documented objective evidence. The lien statute does not allow for personal use of respondent’s truck. Petitioner charged respondent storage fees during the time Bottoms admitted he was driving the truck for personal use, and not keeping the truck in the same condition it was in when taken. The validity of petitioner’s lien does not foreclose respondent’s ability to receive credit for Bottoms’ unlawful conversion and use. Furthermore, the trial court’s choice of $0.25 per mile as an offset was unsupported and arbitrary. Bottoms Towing & Recovery, LLC v. Circle of Seven, LLC (Lawyers Weekly No. 011-125-22, 21 pp.) (John Arrowood, J.) (John Tyson, J., concurring in part & dissenting in part) Appealed from Nash County Superior Court (Quentin Sumner, J.) John Williford and Ryan King for petitioner; Quentin Byrd for respondent. 2022-NCCOA-342

Domestic Relations Parent & Child – Abuse & Neglect Adjudication – Visitation

Criminal Practice Sex Offender Registration – Texas & N.C. Offenses – Substantial Similarity The Texas offense of possession or promotion of lewd visual material depicting a child, Tex. Penal Code § 43.262(b), is substantially similar to the North Carolina offense of second-degree exploitation of a minor, G.S. § 14-190.17, in that (1) both offenses include an element of the defendant’s knowledge; (2) the Texas offense’s “visual material” and the North Carolina offense’s “visual representation” both graphically depict the genital or pubic areas of a child under the age of 18 in a manner that appeals to and arouses sexual desire; and (3) the criminalized behavior of possessing, accessing with intent to view, or promoting the “visual material” in Texas is comparable to the criminalized behavior of recording, photographing, filming, developing, duplicating, distributing, transporting, exhibiting, receiving, selling, purchasing, exchanging, or soliciting the “visual representation” in North Carolina. Given this substantial similarity, the trial court correctly held that petitioner is required to register as a sex offender in North Carolina. Affirmed. Defendant argues that the Texas offense may be based on the “lewd exhibition of the genitals or pubic area of [a] . . . clothed child,” while the North Carolina statute, which prohibits the “lascivious exhibition of the genitals or pubic area of any person,” does not apply to the mere exhibition of the genitals or public area of a clothed child. We disagree for two reasons. First, according to its plain terms, the statute applies to the “lascivious exhibition of the genitals or pubic area of any person” and nothing in these terms limits its application to the exhibition of the genitals or pubic area of a clothed child. Furthermore, even if the North Carolina statute does not apply to visual depictions of the genitals or pubic area of a clothed child, substantial similarity between the two offenses is not a requirement of exactitude. In re McIlwain (Lawyers Weekly No. 011-127-22, 10 pp.) (Allegra Collins, J.) Appealed from Forsyth County Superior Court (David Hall, J.) Glenn Gerding and Andrew DeSimone for petitioner; Alex Williams for the state. 2022-NCCOA-336