North Carolina Lawyers Weekly June 6, 2022

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VOLUME 34 NUMBER 12 ■

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JUNE 6, 2022 ■ $8.50

Supreme Court gives workers’ comp decision de novo review ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires

Ken Schorr and his wife, Jane, in front of the Temple of the Great Relic in central Thailand in 2019. Photo provided by Ken Schorr

Q&A: He toured the country in advocacy, might tour the world in retirement ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com Ken Schorr grew up in an affluent Washington, D.C. suburb but always knew that while he wanted for nothing, the needs of the world were great. Ultimately, he chose to dedicate his entire legal career to serving the less fortunate. From representing factory workers and unions in Arkansas, to leading legal services agencies in Arizona and Texas, to spending 34 years

helping build Charlotte Center for Legal Advocacy, Schorr has enjoyed pursuing justice, fairness and equity since graduating from the University of Michigan School of Law in 1975. He believes that he has been blessed to work with low-income individuals, that the legal profession has a collective obligation to make the legal system serve everyone and that society has all the tools it S e e Ke n S c h o r r P a g e 6 ►

Whether a workers’ compensation claim was time-barred because it was filed after the twoyear limit set by N.C.G.S. § 97-24 is a jurisdictional matter subject to de novo review on appeal — including facts, the North Carolina Supreme Court has ruled, affirming an appellate decision reversing the Industrial Commission’s determination that an employee’s claim for disability compensation was untimely. Doris G. Cunningham worked for The Goodyear Tire & Rubber Company for more than 17 years. Since 2014, she was a press operator, a physically demanding job that required her to walk at least eight miles per day, pick up tires, place them in a loader plan and clear out jams when the tires backed up. Cunningham injured her back twice while lifting tires in 2011 and filed claims with the Industrial Commission, both of which were settled in 2012. On May 27, 2014, she hurt her back when she attempted to pick up a tire that was stuck. Cunningham filed an internal report of the incident and was placed on light duty for six weeks. Her form was sent to Goodyear’s insurance carrier, Liberty Mutual, which in turn filed a form with the Commission. Cunningham received physical therapy through an onsite medical facility multiple times in 2014 and 2015, but did not return again until 2017, when she told the therapist that her back problems had never gone away. She was told that her file had been closed because she had reached the statute of limitations in regard to her back claims and

further treatment wasn’t covered. Cunningham then reported that she had been injured again in April 2017 from a stuck tire. A neurosurgeon who evaluated her testified that it was “more than likely” that the 2017 injury exacerbated her 2014 injury. When she filed disability claims with the Commission, Goodyear and Liberty Mutual moved to dismiss, arguing that the 2014 claim was time-barred because it had not been filed within two years of the alleged injury and the evidence in the record did not support a compensable injury for the 2017 claim. The Deputy Commissioner agreed and the Full Commission affirmed the denial of Cunningham’s claims. In a divided opinion, a panel of the Court of Appeals reversed, holding that compliance with the requirement of N.C.G.S. § 97-24 was a jurisdictional fact reviewed de novo and that the Commission erred in denying the claim. Goodyear and Liberty Mutual appealed. Writing for the majority, Justice Robin Hudson affirmed. “[W]hen reviewing findings of fact by the Commission on which the scope of its jurisdiction depends, we apply a de novo standard of review,” she wrote. “The reviewing court has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the record.”

Jurisdictional in nature

The defendants first argued that the standard of review on appeal for Commission findings on compliance with the statute’s S e e Co m p e n s a b l e P a g e 6 ►

Unnamed lesser offense OK when greater offense proven ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com A man convicted of concocting a jailhouse plan to have his girlfriend killed is not entitled to a new trial, the North Carolina Court of Appeals has ruled in a matter of first impression, finding that any error in the court’s jury instruction regarding the lesser-included offense of solicitation to commit second-degree murder was harmless. In its unanimous May 3 opinion, the appeals court affirmed the defendant’s conviction for so-

licitation to commit murder, finding 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 lesser-included offense is supported by the evidence. “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,’” Judge Lucy Inman wrote for the court, quoting, 1986’s State v. Walker.

‘Kill everyone’

According to court documents, defendant Bennie Strickland Jr. started his on-again-off-again relationship with his girlfriend by telling her that if he couldn’t have her, no one would because he would kill her. During the volatile relationship, the woman secured two domestic violence protective orders against Strickland and obtained an emergency concealed weapons permit after he allegedly told her that he would kill her and See Solicitation Page 3 ►

INSIDE MIRANDA LIMITATIONS

VERDICTS & SETTLEMENTS

COMMENTARY

Court rules no right to Miranda while holding police at bay.

Fatal fire leads to $10M settlement.

SC holds emotional distress damages not available under Title VI, Title IX.

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2 / NEWS

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Ju n e 6, 2022

NEWS BRIEFS Medical pot bill resurfaces in NC Senate, heading to floor RALEIGH, N.C. (AP) — Legislation authorizing marijuana for medical use in North Carolina and developing a system to grow, sell and regulate cannabis is back on the front burner in the Senate. The rules committee approved the measure Wednesday, nine months after it last surfaced. The first floor vote is expected Thursday. The measure would allow patients with at least one of the more than a dozen “debilitating medical conditions” to purchase and use marijuana with their physician’s formal approval. The bill envisions medical cannabis centers operated by state-licensed growers and vendors. Any measure also would have to pass the House, where action appears unlikely this year.

NC parents’ bill blocking K-3 LGBTQ curriculum clears Senate RALEIGH, N.C. (AP) — The state Senate has passed “Parents’ Bill of Rights” legislation that in part would prohibit instruction about sexual orientation and gender identity in K-3 public school curriculum. The measure cleared the chamber Wednesday on a near party-line vote and now heads to the House. The outcome suggests a likely veto by Democratic Gov. Roy Cooper if the bill reaches his desk could doom the Republican measure. The bill’s authors said the legislation was needed to give parents more ability to oversee their children’s’ education and health. But opponents said the measure is an election-year attempt at censorship that would harm LGBTQ students.

‘Boogaloo’ member sentenced to 4 years on weapons charges MINNEAPOLIS (AP) — The second of two self-described members of an anti-government extremist group accused in Minnesota of dealing firearm components to informants acting as members of Hamas is headed to prison. A federal judge on Wednesday sentenced Benjamin Ryan Teeter, of Hampstead, North Carolina, to four years behind bars. He plead-

ed guilty in December to one count of conspiracy to provide material support to a foreign terrorist organization. Authorities say Teeter and 32-year-old Michael Robert Solomon of New Brighton, Minnesota, sold silencers and other firearm components to FBI informants during the unrest following George’s Floyd’s killing. Solomon was sentenced in March to three years in prison.

NC health bill with Medicaid expansion gets first Senate OK RALEIGH, N.C. (AP) — The North Carolina Senate has given initial approval to a wide-ranging health care access bill penned by Republicans that would include Medicaid expansion, which GOP lawmakers in the chamber had opposed for years. The Senate voted overwhelmingly Wednesday for the measure, which would provide Medicaid coverage for hundreds of thousands of adults who make too much to qualify for traditional Medicaid. The bill represents a dramatic turn for the prospects for expansion. But the odds appear long that the House will take up the measure before the annual work session ends in about a month. A final Senate vote will occur Thursday.

NC House primary winner Buansi takes seat, succeeding Insko RALEIGH, N.C. (AP) — A local government attorney has joined the North Carolina House. Allen Buansi of Orange County is now a state representative after being picked by Orange County Democratic activists. He’s filling the remainder of the term won last year by veteran Rep. Verla Insko. She decided not to seek reelection and formally resigned this week. Buansi already was poised next January to join the House for a two-year term after winning the 56th House District Democratic primary on May 17. There is no Republican candidate for the district seat this fall. Buansi is an assistant city attorney for Greensboro who recently served on the Chapel Hill town council.

LAWYERS IN THE NEWS Sarah Barnett, Fenton Erwin Jr., Lex Erwin, Matthew Holtgrewe, Erin Huegel, David Luzum, and Joseph Moss Jr. have joined Nexsen Pruet in its Charlotte office. Barnett practices business and commercial litigation and construction. Fenton Erwin practices business disputes, construction, and serious personal injury cases. Lex Erwin practices commercial litigation, construction, employment, and real

estate disputes. Holtgrewe practices business and commercial litigation and construction law. Huegel practices business and commercial litigation and construction law. Luzum practices construction, business, financial services, and appellate litigation. Moss practices construction, real estate development, finance, securities transactions, employer-employee relations, technology transactions, and business torts.

COA calculates UIM coverage where multiple underinsured tortfeasors, policies ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires The proper calculation of underinsured motorist (UIM) coverage in a case involving both multiple underinsured tortfeasors and multiple UIM insurance policies is the difference between the total amount paid under all exhausted liability policies and the total limits of all applicable UIM policies, a unanimous panel of the North Carolina Court of Appeals has ruled in a matter of first impression. In 2014, Vivian Tutterow was killed in a car accident. She was a passenger in a car driven by Pamela Crump. The accident involved a second vehicle, driven by Brian Hall. Crump had an auto policy issued by Horace Mann with $100,000 per person liability limits and $100,000 per person UIM coverage. Hall had an auto policy issued by Nationwide with $100,000 per person liability limits. Tutterow, as a passenger in Crump’s car, was covered under Crump’s $100,000 per person UIM coverage. Tutterow also had an auto policy issued by State Farm with $100,000 per person UIM coverage. In 2015, Tutterow’s estate brought a wrongful death action against Crump, Hall and others. The parties stipulated that both Crump and Hall negligently caused the accident. Horace Mann tendered the $100,000 limits of its liability policy on behalf of Crump; Nationwide tendered the same amount on behalf of Hall. No money was advanced under the UIM policies. State Farm advanced $100,000 to Tutterow’s estate under its UIM policy while reserving its rights to recoup funds should the estate recover from Nationwide. In 2019, the estate informed the UIM carriers that it reached a settlement with Hall that included a payment from Nationwide of the $100,000 limits of Hall’s liability policy. State Farm then requested that the estate reimburse the $100,000 it had advanced. The funds were placed in escrow and the estate filed a declaratory judgment seeking a declaration of the UIM carriers’ coverage obligations and State Farm’s right to reimbursement. On cross motions for summary judgment, the trial court sided with the UIM carriers on the ground that the amount of UIM coverage was $0. The estate appealed. A panel of the Court of Appeals affirmed in an opinion authored by Judge Richard Dietz. “The trial court’s calculation follows the statute’s plain language and is consistent with the purpose of underinsured motorist coverage identified in our State’s case law,” he wrote. “We therefore affirm the trial court’s judgment.”

Unambiguous statutory language

Addressing the matter of first impression, Dietz began with the Motor Vehicle Safety and Financial Responsibility Act. According to N.C. Gen. Stat.

§ 20-279.21(b)(4): “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.” The statutory language is unambiguous, Dietz found. While the first sentence was inapplicable to the case at hand (as it applied to scenarios in which the claimant is covered by only one UIM policy), the second sentence addressed a scenario in which the claimant is covered by more than one UIM policy. “The use of the transitional word ‘furthermore’ indicates that this second sentence provides an additional factor or consideration that distinguishes it from the proceeding statement,” he wrote. “That additional consideration – meaning the thing that distinguishes the second sentence from the first – is the existence of multiple UIM policies that apply to the claimant. This is confirmed by the grammar of this second sentence, which refers to the ‘total limits of the claimant’s underinsured motorist coverages’ in the plural form, in contrast to the first sentence, which refers to the ‘limit of underinsured motorist coverage’ in the singular.” In the scenario addressed by the second sentence of the statute, involving multiple applicable UIM policies, “the statute provides an unambiguous method to calculate the applicable limit of combined UIM coverage: it is the difference between the total amount paid under all exhausted liability policies and the total limits of all applicable UIM policies,” Dietz said.

Interpretation consistent with statutory purpose

The trial court properly applied the statutory provision, Dietz added. “The court calculated the total amount paid under the exhausted liability policies as $200,000 and calculated the total limits of the claimant’s underinsured motorist coverages as $200,000,” he explained. “The court then determined that the total limits of UIM coverage is the difference between these two totals and, therefore, the ‘available UIM coverage is $0.’ This determination properly applied the statute’s plain language and is correct.” Although the statute compelled this result, Dietz noted that this interpretation is also consistent with the purpose of the statute. See Page 3 ►

NEWS / 3

N O R T H C A R O L I N A L A W Y E R S W E E K LY I June 6, 2022

No right to Miranda while holding police at bay In a matter of first impression, the North Carolina Court of Appeals has held that Miranda warnings are not required where police are negotiating with a suspect who has barricaded himself and they are attempting to convince him to come out peacefully and not harm himself. In the court’s unanimous May 3 opinion, Judge Fred Gore wrote that defendant John Conner was not “in custody,” a key element triggering Miranda rights, while deputies attempted to coax him out of his locked bedroom as he threatened to take his own life. “At the time of the negotiation defendant was not under formal arrest,” Gore wrote. “Defendant’s actions prevented the deputies from placing defendant under formal arrest or exercising any degree of control equivalent to a formal arrest.”

rants for sex offenses against a minor. Conner refused to come out of the bedroom, informing deputies that he was armed with a knife and that he would kill himself if they entered. Deputies negotiated with Conner for approximately five hours, during which they told him about the allegations against him. At some point, Conner admitted to having either methamphetamine or cocaine in the room with him. After a five-day trial, Conner was convicted of several sexual offenses and methamphetamine possession and sentenced to decades in prison. On appeal, Conner argued that McDowell County Superior Court Judge Steve Warren erred when he allowed a deputy to testify regarding Conner’s statement about the methamphetamine in the bedroom because Conner was “in custody” and subject to interrogation at the time and had not been read his Miranda rights.

Bedroom confessions

No custody without control

■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com

On Jan. 19, 2018, McDowell County deputies went to Conner’s aunt’s house to arrest him on war-

The question for the courts here was whether Conner was “in custody” or “otherwise deprived of his

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

her children by burning down their house with them inside. Strickland was arrested for violating the DVPO, hit and run, and assault with a deadly weapon after driving his truck into the back of her vehicle. He continued to call the woman while incarcerated at the Edgecombe County Detention Center (further violating his DVPO), and soon began hatching a plan, prosecutors said, to have a fellow inmate kill her when he got out of jail. Eventually, three inmates went to law enforcement with Strickland’s plans, and he was indicted on two counts of solicitation to commit first-degree murder. At trial, one inmate testified that Strickland had drawn him a map showing where his girlfriend lived and given him a physical description of her and her car. According to prosecutors, Strickland even laid out two ways the inmate could commit the murder: inject her with heroin to make it look like an overdose or “run up in the house Rambo-style and kill ev-

C o nt inu e d f r o m 2 ►

UIM coverage serves as a safeguard, intended to put the insured in a position where total insurance coverage for injuries sustained in an automobile accident is no less than the amount of UIM coverage. “Here, for example, the UIM carriers provided combined UIM coverage ensuring that, in the event of bodily injury or death in an auto accident, there would be at least $200,000 in available insurance coverage,” he wrote. “That is the amount of liability coverage provided in this case. Accordingly, we affirm the trial court’s entry of summary judgment in favor of the UIM carriers on this issue.”

freedom in any significant way,” according to the 1966 ruling in Miranda v. Arizona. The U.S. Supreme Court in 1977 in Oregon v. Mathiason held that officers are not required to administer Miranda warnings to everyone they question or even suspect of a crime, but only where there “has been such a restriction on a person’s freedom as to render him ‘in custody.’” North Carolina’s Supreme Court has determined that a court must consider the totality of the circumstances when determining the meaning of “in custody,” noting that the definitive inquiry is “whether there was a formal arrest or a restraint on freedom of movement of the degree associated with formal arrest.” But no court in the state has directly addressed how this applies to a situation where authorities are negotiating with a barricaded suspect threatening suicide. Here, despite Conner’s claim that he was being interrogated during negotiations, the high court found that he had not been placed under formal arrest at the time and deputies did not restrain his movement—had not detained him—because he chose to

lock himself inside the bedroom. The court was persuaded by several rulings from other jurisdictions, all of which found that barricaded subjects are not in custody while authorities are attempting to convince them to surrender themselves peacefully. “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,” Gore wrote. “We conclude that because defendant had barricaded himself in the bedroom and refused to exit defendant was not in custody. [T]herefore, Miranda warnings were not required.” Judges Jefferson Griffin and Hunter Murphy concurred in the decision. Special Deputy Attorney General Tamika Henderson represented the state. Drew Nelson of Raleigh represented Conner. The nine-page decision is State v. Conner. (Lawyers Weekly No. 011-119-22). The full text of the opinion is available online at nclawyersweekly.com. Follow Heath Hamacher on Twitter @NCLWHamacher

Unnamed lesser offense OK when greater offense proven

Though Strickland had been charged with solicitation to commit first-degree murder, the trial court instructed the jury on solicitation to commit second-degree murder. Strickland was convicted and sentenced to 110 to 144 months in prison for solicitation to commit murder. He received additional time for violating the DVPO and hit and run. The appeals court noted that to find a defendant guilty of solicitation of first-degree murder, a jury must find that the defendant asked another person to commit every element of first-degree murder and that first-degree murder is distinguished from its lesser-included offense of second-degree murder by the presence or absence of premeditation and deliberation. Inman wrote that its ordinarily prejudicial error for the trial judge to permit a jury to convict upon an abstract theory not supported by the bill of the indictment, but that a defendant may be convicted of the

charged offense or a lesser-included offense when the greater offense charged in the bill of indictment contains all of the essential elements of the lesser, all of which could be proved by proof of the allegations in the indictment. The court noted that it could not find a prior appellate opinion directly addressing jury instructions on lesser-included offenses of solicitation crimes, but that it found persuasive its ruling in 1995’s State v. Suggs. In Suggs, the defendant was convicted of solicitation to commit assault with a deadly weapon inflicting serious injury. The appeals court threw out that conviction because the state failed to present evidence that the defendant solicited the use of a deadly weapon but found that the conviction for the lesser-included offense of solicitation to commit misdemeanor assault was proper because the jury necessarily found the facts establishing the crime of soliciting assault with a deadly weapon inflicting serious injury. Where Strickland solicited anoth-

er inmate to kill his girlfriend with malice, he necessarily requested the inmate to do so in the future and according to his suggested plans, the court held. “Defendant’s solicitation of murder therefore included and required premeditation and deliberation by [the other inmate],” Inman wrote. “Thus, to the extent the evidence convinced the jury beyond a reasonable doubt that Defendant solicited [the inmate] to kill [Strickland’s girlfriend] once he was released from prison, that same evidence unavoidably established Defendant solicited a premeditated and deliberated homicide with the specific intent to kill.” Assistant Attorney General Derek Hunter represented the state. William Spence represented the defendant. The 28-page decision is State v.Strickland. (Lawyers Weekly No. 011-119-22). The full text of the opinion is available online at nclawyersweekly.com. Follow Heath Hamacher on Twitter @NCLWHamacher

The estate attempted to argue that the trial court’s order failed to acknowledge that State Farm waived its subrogation rights and was not entitled to reimbursement, but Dietz found that the statutory provision the estate relied upon was inapplicable. “[W]hen 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,” he said. “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.” Judges Hunter Murphy and Darren Jackson joined the unanimous opinion. Henry P. Van Hoy, II of Martin & Van Hoy in Mocksville represented the estate. While he was disappointed with the outcome, he appreciated the “clarity” from the appellate court on exactly how the statute should be interpreted. “That way, we can bring it to the attention of our legislators to determine if the result reflects what the public policy of the state should be,” he said. “If the purpose of the statute is to compensate an injured party against UIM motorists and compensate them fully,

then why give UIM carriers a benefit because there are more people at fault?” Van Hoy noted that the decision of whether to appeal the case further “has not been fully resolved.” Neither Charlotte attorney Jeffrey B. Kuykendal of McAngus, Goudelock & Courtie, who represented State Farm, nor Kara V. Bordman of Teague, Rotenstreich, Stanaland, Fox & Holt in Greensboro, who represented Horace Mann, responded to a request for comment. The 11-page decision is Tutterow v. Hall (Lawyers Weekly No. 011-122-22). The full text of the opinion is available online at nclawyersweekly.com.

eryone there execution-style.”

Every element and then some

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 Ju n e 6, 2022

Supreme Court holds that emotional distress damages are not available under Title VI, Title IX, and other spending clause statutes ■ BY DEREK TEETER AND MICHAEL RAUPP Husch Blackwell ST. LOUIS, — In Cummings v. Premier Rehab Keller, P.L.L.C., the U.S. Supreme Court held that a plaintiff suing under Title VI (prohibiting race, color, and national origin discrimination), Title IX (prohibiting sex discrimination), the Rehabilitation Act (prohibiting disability discrimination), and the Patient Protection and Affordable Care Act (ACA) may not recover emotional distress damages. The Court reasoned that the scope of available remedies under these Spending Clause statutes is limited to only those remedies generally available for breach of contract. Because emotional distress damages are not generally available for breach of contract, the Court reasoned that emotional distress damages are not available under these Spending Clause laws. Cummings will substantially reduce the scope of available damages in a wide range of civil rights lawsuits brought by students against colleges and universities, including Title IX cases where a plaintiff claims emotional distress arising from sexual harassment, sexual assault, or the erroneous outcome of a Title IX investigation. In Cummings, the plaintiff, who was deaf and legally blind, sought physical therapy services from a private provider and requested that the provider hire a sign language interpreter to help the plaintiff communicate during physical therapy sessions. The provider declined to provide an interpreter, and the plaintiff sued the provider under the Rehabilitation Act and the ACA. The provider was subject to the Rehabilitation Act and ACA because it agreed to comply with those laws as a condition of receiving payments under Medicare and Medicaid programs. The plaintiff sought injunctive relief and damages, including damages for emotional distress that the plaintiff claimed she suffered from being unable to obtain the requested services. The district court held that the plaintiff could not recover damages for “humiliation, frustration, and emotional distress,” 2019 WL 227411, at *4 (N.D. Tex. Jan. 16, 2019) and the Fifth Circuit affirmed. 948 F.3d 673 (2020). The plaintiff asked the Supreme Court to reverse these lower courts and was supported by numerous groups (amici) who argued that Spending Clause legislation prohibiting discrimination should be construed broadly to include recovery for

emotional distress damages. Plaintiff and her amici argued, among other things, that because emotional distress is particularly likely to result from discrimination, emotional distress is a foreseeable type of damage that should be recoverable even under contract law principles. The Supreme Court, adhering to its prior precedent in Barnes v. Gorman, 536 U.S. 181 (2002), did not agree. In Barnes, the Supreme Court held that because Spending Clause legislation operates like a contract — that is, a funding recipient agrees not to engage in discrimination in exchange for certain federal funds — it was appropriate to use a contract-law analogy to define the scope of recoverable damages. Under this analogy, a plaintiff is permitted to pursue particular relief only “if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature.” Id. at 187. In Barnes, this reasoning resulted in a holding that punitive damages — not generally available for breach of contract — cannot be recovered under Spending Clause statutes. Cummings applied Barnes’ analysis to the separate category of emotional distress damages, finding them also to be not generally available for breach of contract and, therefore, not available for claims under Title VI, Title IX, the Rehabilitation Act, and the ACA. The dissent recognized that Cummings’ holding applies to bar the recovery of emotional distress damages under Title IV, Title IX, the Rehabilitation Act, and the ACA, even though the plaintiff’s claims in the case directly implicated only the Rehabilitation Act and the ACA. The dissent argued that emotional distress is particularly likely to result from breach of the contract at issue in Spending Clause cases — that is, an agreement not to discriminate — and should thus be recoverable. In other words, the dissent would have accepted the plaintiff’s argument that because emotional distress damages are available in some breach of contract actions, they should be available under Spending Clause legislation as well. The dissent also made an important observation regarding employment discrimination. Cummings limits recovery of emotional distress damages under Title VI and Title IX, which prohibit discrimination against students at colleges and universities, but Cummings does not limit recovery of emotional distress damages under Title VII, which prohibits multiple forms of protected-status discrimination against employees in the work-

place. This is because Title VII was not enacted pursuant to the Spending Clause (it was enacted as part of Congress’ authority under 14th Amendment) and a separate federal statute specifically permits the recovery of emotional distress damages for Title VII and other non-Spending Clause civil rights laws. Thus, unless Congress chooses to act, a student who experiences sex discrimination in a college or university will not be able to recover emotional distress damages under Title IX, whereas an employee of a college or university who experiences sex discrimination in the workplace will be able to recover emotional distress damages under Title VII.

What this means to you

Cummings will have an immediate impact on the valuation of lawsuits where a plaintiff claims discrimination by a college or university under Title VI, Title IX, or the Rehabilitation Act. Higher education institutions are rarely sued under the ACA. Under Cummings, plaintiffs in such suits will not be able to recover emotional distress damages and the scope of recovery will be limited to traditional compensatory damages, like out-of-pocket costs a plaintiff has experienced due to discrimination. The most profound impact of Cummings may prove to be in two specific types of Title IX lawsuits. First, Cummings will impact cases brought by victims of third-party sexual assault who claim an institution was deliberately indifferent to the risk of sexual assault. Prior to Cummings, the most significant element of damage in such cases was typically emotional distress resulting from the sexual assault itself, which plaintiffs often asserted should be valued in hundreds of thousands if not millions of dollars. With the emotional distress theory of damage no longer available, Cummings may result in fewer such lawsuits being filed, more modest settlements, and/or diminished verdicts for those cases that proceed to trial. Second, Cummings will impact cases in which students found responsible for committing acts of sexual harassment or sexual assault sue educational institutions claiming that the institution reached an “erroneous outcome.” Emotional distress typically forms a significant part of the damage theory in those cases as well. — For more information about the implications of this ruling for your institution, please contact Derek Teeter, Michael Raupp or your Husch Blackwell attorney.

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Asking for help? Here are some tips to do it right ■ BY JESSICA MARKHAM BridgeTower Media Newswires BALTIMORE, MD -- I receive inquiries for help from outside of my law firm almost every single day. Mostly, inquiries about help finding a job, starting a firm, advice on a case, and advice on hiring and networking. I realized at some point that some of these inquiries are very easy to respond to, and I’m happy to help. Every so often I get an inquiry or two that are off-putting. I couldn’t really put my finger on why until I read an article that explained that

the way you ask for help can really impact the help that you receive. First, be targeted. Be clear about what you are asking for. Professor David Garvin and Professor Joshua Margolis from Harvard Business School explained that there are four different types of advice: discrete advice, where you need help exploring options for a single decision; counsel, where you need guidance on how to approach an unfamiliar situation; coaching, where you need help with personal development; and mentoring, where you need support in navigating work and build-

ing your career. Take the time to think about what exactly is the nature of your request. When you’re asking for help it is recommended that you think about exactly the nature of your request as simple as opposed to asking for vague help. When you are the most specific about the help you are seeking, the listener will be more receptive to providing help. Asking out of the blue “can I pick your brain” is not as effective as a clear ask. See Page 6 ►

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VERDICTS & SETTLEMENTS / 5

N O R T H C A R O L I N A L A W Y E R S W E E K LY I June 6, 2022

Fatal fire leads to $10M settlement ■ BY DAVID BAUGHER

A deadly late night fire has resulted in a $10 million global settlement against both the apartment complex and the county’s 911 operators who allegedly failed to tell the victims of the blaze that they should leave the burning residence. “They didn’t follow their own protocols pertaining to a structure fire,” said Ann Ochsner of the Whitley Law Firm in Raleigh. Ochsner said that four individuals aged 17 to 19 perished in the blaze which resulted in three emergency phone calls. She said that a recording of the second call, which originated in the decedents’ apartment, showed that the callers asked whether they should try to escape out of the unit’s second-story window while seeking refuge in a bedroom. Ochsner said that the operator promised they would be rescued and that they should just try and stay low. “That’s also contrary to their general training and he was saying it at a time when he knew the volunteer firefighter units were just then being alerted,” she said. Ochsner said that proper procedure is for the operator to advise the caller to evacuate the structure and that the operator did eventually indicate that the window might be an acceptable means of egress. But, by that time, the smoke had become too thick. “By the time that had happened, the caller and all of the occupants in the room are saying ‘we can’t see the window,’” she said.

The attorneys sued the county, the operator and the operator’s supervisor over the incident. Ochsner said that there was some question about whether the operators were able to be sued in their personal capacity as employees or if they qualified as imC. Douglas munized officials. She said that Maynard Jr. she believed they could be classified as the former which would leave them open to suit. “There is appellate precedent that sets out a test as to how you determine when someone is a public official or a public employee,” she said. Another plaintiffs’ attorney, C. Douglas Maynard of Winston-Salem, said that by the time firefighters accessed the apartment through the back window area, three of the young adults were dead and the fourth died shortly afterward. “The 911 operators had no specific training on fire calls and had never handled a structure fire with occupants in a structure,” Maynard said. The apartment complex was also sued. Maynard said that the plaintiffs “asserted that the apartment complex was aware of dangerous conditions including, but not limited to, a cigarette bucket beneath the wooden staircase in the front of the building surrounded by flammable debris.” Maynard said that government investigations could not confirm the origin of the fire, however. “They all came to the conclusion that it was accidental and had several potential sources as reference but they never did nail down the actual

SETTLEMENT REPORT – WRONGFUL DEATH

Amount: $10 million Injuries alleged: Death Case name: Confidential Venue: Confidential Case No.: Confidential Date of settlement: 2022 Attorneys for plaintiffs: C. Douglas Maynard Jr., of the Law Offices of C. Douglas Maynard Jr. in Winston-Salem; Ann Ochsner of the Whitley Law Firm in Raleigh; Jeffrey Powers of Powers Law Group in Macon, Ga.; Christopher B. Newbern of Piasta Newbern Walker in Atlanta; Stephen Chance of Watkins, Lourie, Roll & Chance in Atlanta; and Mark Murray of The Murray Law Firm in Atlanta Attorney(s) for defendants: Confidential source or cause,” he said. Another plaintiffs’ attorney, Christopher Newbern of Piasta Newbern Walker in Atlanta, said that a trial would have been emotionally difficult and it was better to find an amicable resolution to the matter. “I think it would have been hard on everybody,” he said. “It is such a huge tragedy when four people that young passed the way they did.” Due to the terms of the settlement, the names of all parties were kept confidential.

Pedestrian awarded $87K in crosswalk crash ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com

A Wake County jury has awarded $87,000 to a woman who, along with her 3-year-old son, was struck by a vehicle while walking near the parking lot of a Zebulon Walmart. Ellis Boyle of Knott & Boyle in Raleigh said that his client, 34-year-old Amber Brooke Kornegay, had just finished shopping at around 4 p.m. on Dec. 20, 2019, and was pushing a shopping cart in the crosswalk in front of the store when defendant Renee Parry abruptly turned left out of the parking lot area, accelerating into Kornegay and her son, Brannon, who was riding in the cart’s designated child seat. Kornegay was knocked back and the cart was knocked over, causing Brannon to hit his head on the pavement. Boyle said that two doctors testified that Kornegay suffered permanent nerve injury to the intercostal nerve on her left side. Brannon suffered a “goose egg” on his head but has fully recovered, Boyle said. The defendants were represented by Robert Ruegger of Raleigh, who did not immediately respond to a request for comment.

Boyle said that the defense argued that Kornegay was partly to blame. “According to the defense, a person must constantly scan left and right the whole time a person walks through a crosswalk just outside a store in a parking lot,” Boyle said. “Defendant struck the cart and Ms. Kornegay as she was about seven or eight steps into the crosswalk, and beyond the left traveling lane of traffic where a car coming from Defendant’s direction should have been.” Defense also argued, Boyle said, that Kornegay was not injured because the subjective reports of pain could not be proven through testing or a radiographic image. “The jury believed the two doctors,” he said. After a one-day trial, the jury deliberated a little less than two and a half hours before finding negligence against the driver and the vehicle’s owner and no contributory negligence against Kornegay. Boyle said that he spoke to one juror, who told him that surveillance video of the crash was helpful. The jury awarded $86,000 to Kornegay and $1,000 to her son. Follow Heath Hamacher on Twitter @ NCLWHamacher

VERDICT REPORT — MOTOR VEHICLE/ PEDESTRIAN

Amount: $87,000 Injuries alleged: Minor head injuries to child, soft tissue injuries and permanent intercostal nerve injuries to mother Case name: Kornegay v. Parry and Pfahler Court: Wake County Superior Court Case No.: 20-CVS-13326 Judge: Graham Shirley Date of verdict: May 25 Demand: $60,000 Highest offer: $30,000 Insurance carrier: National General Insurance Attorney(s) for plaintiff: Joe Knott and Ellis Boyle of Knott & Boyle in Raleigh Attorney(s) for defendant: Robert Ruegger of Raleigh

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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 Ju n e 6, 2022

KEN SCHORR / Q&A: He toured the country in advocacy C o nt inu e d f r o m 1 ►

needs to end poverty. Schorr recently spoke with Lawyers Weekly reporter Heath Hamacher about his life of practicing law and what he plans to do in his recent retirement. That conversation has been slightly edited for clarity and brevity.

What originally led you to law school?

When I was in college, I majored in economics and environmental science. I was very interested in what was happening to the environment. It was the early 70s … there was a lot of concern about air and water pollution. I was deep into the science and the economics of the environment, but I thought that nobody really listened to the economists or the scientists and that the only way we could fix the environment was to … go sue people. So, I went to law school to fix the environment.

At some point your focus shifted a little. Tell me about that. I did not realize that most of the

law school curriculum was about business law, managing financial transactions and wealth, and the regulation of business. It seemed to me that all the people in the country who were not wealthy and who were not working in corporations needed legal representation and so I reoriented my focus to working with low-income people and working people.

Where did that come from?

It’s how I was raised. My parents were both social activists. My two sisters are social activists. I’m Jewish — only two generations back my family was subject to extreme persecution. People struggle. I grew up as an affluent suburban white kid … with all the opportunities and all of the protections and privileges, and it just seemed to me that life is about giving back. When a lot is given to you, you give back.

You spoke at your retirement event about being able to help build organizations and your love of their mission, but there are challenges, right?

Running a legal services agency is very challenging. There’s not stability in funding and we’ve witnessed some very rocky times. The work can be controversial … we work with minorities, with immigrants, with incarcerated people … the legal system is an adversarial system, and it can be very volatile and challenging to run. There were times when we had to reinvent the organization and change it in very significant ways.

But you stuck with it.

It’s what I do. I thought at different points about changing and I really took inventory of the sacrifices and the difficulties and the satisfaction, the reward. It can be incredibly stressful … but the satisfaction is amazing. I got to work with amazing people … the staff and volunteers are all the best people of the profession. The people who choose to do antipoverty and social justice work are terrific people. As director, I get to work with the senior people at many other nonprofit and government agencies. And the clients — I’ve represented hundreds

of individual people … and I can tell you great stories of people who are just interesting people who got in a jam.

You told me it’s time to step back and let others lead, although you plan to look for advocacy roles you can play post-retirement, so what does retirement look like for you?

My favorite travel spot is every spot on the globe we haven’t been. September, we’re booked on a trip to Morocco we’ve been planning for two years. We have a series of driving trips planned that are not yet focused. We have family in New York, New England, and Florida, so we’ll spend some time there. My wife’s never been to Arkansas. We just finished watching the series “Ozark,” so we’ll take the driving trip and I’ll show her the Ozarks. We will also travel internationally. My wife’s list includes a safari in Africa and she’s intrigued with Mongolia which is awfully far away. Maybe we’ll spend some time in Europe, South America, and in Israel, where we both have family.

COMPENSABLE / SC gives workers’ comp decision de novo review C o nt inu e d f r o m 1 ►

timely filing requirement is a competent evidence standard of review – not the de novo review as applied by the Court of Appeals. Hudson disagreed. While ordinarily the court does not have the right to weigh the evidence and decide the issue on the basis of its weight, the standard changes when considering the Commission’s findings of fact on which the scope of its jurisdiction depends, she said. The defendants pointed to a 2007 decision, Gore v. Myrtle/Miller, to contend that the court expressly rejected the view that the timely filing requirement under N.C.G.S. § 97-24 is a jurisdictional fact. But Hudson went back even further to a 1953 decision — Biddix v. Rex Mills — for the proposition that the timely-filing requirement under the statute is jurisdictional in nature, and said Gore did not deviate from that position. In Gore, “we reaffirmed that ‘if the employee follows this procedure [of timely filing under the statute], ‘the jurisdiction of the Commission, as a judicial agency of the State, is invoked,’” Hudson wrote. She also reconciled seemingly contradictory statements in Gore that satisfaction of the timely-filing requirement is a condition precedent to the exercise of the Commission’s jurisdiction and, accordingly, implicates the subject-matter jurisdiction of the Commission, while

C o nt inu e d f r o m 4 ►

Here are some other tips I have identified for improving your requests for advice: Show you have tried to get the information in other ways. Don’t dump your homework on someone else, or make it appear that’s what

a defendant may be barred by equitable estoppel from raising lack of jurisdiction for failure to comply with the timely-filing requirement of N.C.G.S. § 97-24 as an affirmative defense. The explanation: the legislative purpose underpinning the Workers’ Compensation Act, which is the statutory source of the Commission’s jurisdiction, and the general guideline that the statute requires liberal construction to provide compensation for injured employees. “As an overly strict reading of the timely-filing requirement would frustrate this purpose, we reasoned that the jurisdiction conferred by the Workers’ Compensation Act on the Commission was more generous than that which a fastidious adherence to the timely-filing requirement would entail and, accordingly, equitable estoppel could bar assertion of lack of jurisdiction as a defense,” Hudson said. She also noted that while the court is not bound by decisions of the Court of Appeals, that court has “consistently” applied a de novo standard of review to the Commission’s findings under N.C.G.S. § 9724, treating them as jurisdictional. Applying de novo review “and freely substituting our own judgment,” Hudson found the evidence in the record “tends to show” that Cunningham’s 2017 return for

treatment was related to her 2014 injury. The physical therapist testified that Cunningham stated she continued to have back pain and that her symptoms never went away; the neurosurgeon said that her presentation was “chronic pain” dating back several years and Cunningham herself said the onset date of her chronic back pain was 2014. “The Commission, on the other hand, points to no evidence in the record in its findings to support its conclusion that [Cunningham’s] last medical treatment for the [2014] injury was in 2015,” Hudson wrote. “[O]verwhelmingly, the greater weight of the evidence, including [the neurosurgeon’s] testimony and [Cunningham’s] testimony, supports the contrary conclusion that [her] back pain was chronic and stemmed from the [2014] injury.” She also rejected the defendants’ argument that Cunningham’s pain was related to her 2011 injury. “The proposition that chronic back pain following any new back injury is attributable solely to an old one is unsupported by evidence in the record and, moreover, would frustrate the beneficent purposes of the Workers’ Compensation Act of ensuring compensation for every injury attributable to the employee’s work,” she said. Hudson affirmed the Court of Appeals decision and remanded to

the Commission for consideration of the merits of Cunningham’s 2014 injury claim. Justice Philip Berger Jr. did not participate in the consideration or decision of the case. Chief Justice Paul Newby authored a dissenting opinion, joined by Justice Tamara Barringer, where he expressed concern that “[b]roadening appellate judicial authority to allow de novo fact findings brings increased uncertainty to the process.” Vernon Sumwalt of The Sumwalt Group in Charlotte filed an amicus brief on behalf of North Carolina Advocates for Justice in support of the plaintiff’s position. “Jurisdiction is jurisdiction and that is the fundamental question every court has to look at before it can go on to other issues in the claim,” he said. “And the jurisdictional standard of review is de novo, so the appellate court can look at it with fresh eyes.” Greensboro attorney Kathleen G. Sumner, who represented Cunningham, did not respond to a request for comment. Neither did Angela Farag Craddock of Young Moore & Henderson in Raleigh, who represented the defendants. The 31-page decision is Cunningham v. The Goodyear Tire & Rubber Co. (Lawyers Weekly No. 010-048-22). The full text of the opinion is available online at nclawyersweekly.com.

you are doing. Make the request brief and make the meeting/call/inquiry brief, too. Get to the point to respect the other person’s time. Provide value to your adviser: compensation, coffee/lunch, future referrals, “credit” for their idea in writing, whatever that may be. Even

a thank you note goes a long way! Make it fun or meaningful. This can be done in many ways. People WANT to help. They experience a natural high by helping and being thanked. Do you share common goals? Will a “circle back” about the case make them feel they have made a positive impact?

Have you asked for help before? Make it clear you have acted on the advice and learned from it. It’s really frustrating to help the same person over and over with the same thing. Though people often want to help, not everyone has time. Make it easier on them.

Applying de novo review

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 June 6, 2022

Opinions Workers’ Compensation 2016 Back Injury – 2019 Back Pain – Causation – Parsons Presumption Even if the Industrial Commission erred when it found there was “no documentation” that plaintiff had complained of significant leg pain or radicular symptoms until April 2019, in that there was one mention of radicular symptoms on 21 December 2016, the Commission could still rely on the opinion of plaintiff’s treating physician, who testified that (1) he did not believe plaintiff’s 2019 back symptoms were related to his 2016 accident; (2) the disc herniation seen on the 2019 MRI was a new finding, compared to the 2017 MRI; (3) when he evaluated plaintiff several times in 2017, plaintiff did not exhibit radicular symptoms; and (4) he believed there had been a “new event” that had brought on plaintiff’s symptoms in 2019. The Commission was entitled to rely on the physician, an expert in physical medicine and rehabilitation.

We affirm the Commission’s denial of additional benefits. Under Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997), a plaintiff is entitled to a presumption that her current discomfort and related medical treatment are directly related to her compensable injuries. Relying on unpublished case law, plaintiff argues that his doctor equivocated when he testified that it would be possible, if plaintiff had significant gait change from his 2016 injury, that plaintiff could develop a herniated disc and thus other low back issues, from the gait change. However, the doctor did not equivocate. He was plainly speaking in hypotheticals to answer the question posed to him. When asked to determine what he believed had actually occurred, the doctor said a “new event” caused plaintiff’s back pain. Defendants thus rebutted the Parsons presumption with the testimony of plaintiff’s authorized treating physician, an expert in physical medicine and rehabilitation, which indicated he believed the 2019 MRI revealed an issue caused by a “new event.” Valdiviez v. Supreme Maintenance

Organization (Lawyers Weekly No. 012-166-22, 8 pp.) (Donna Stroud, C.J.) Appealed from the Industrial Commission. Russell Johnson for plaintiff; Steven Bader and James Black for defendant. 2022-NCCOA-256

trial Commission. Nathaniel Webb, pro se; Lisa Taylor for defendant. 2022-NCCOA-257

Domestic Relations Alimony Modification – Imputed Income – Dependent Spouse

Tort/Negligence STCA – Intentional Torts – False Arrest – Subject Matter Jurisdiction Even though plaintiff alleges that state troopers negligently arrested him and handcuffed him behind his back while he was astride his motorcycle, causing him to fall and suffer injuries, since all of the claims asserted by plaintiff are intentional torts or federal constitutional violations, the Tort Claims Act did not give the Industrial Commission jurisdiction to hear the claims. We affirm the Commission’s dismissal of plaintiff’s claims for lack of subject matter jurisdiction. Webb v. North Carolina State Highway Patrol (Lawyers Weekly No. 012-167-22, 5 pp.) (John Tyson, J.) Appealed from the Indus-

Even though the defendant-husband’s motion to modify his alimony obligation did not refer to the plaintiff-wife’s lack of income, the trial court could nevertheless consider the wife’s lack of income and it could also impute income to her in deciding whether the modify the husband’s alimony obligation. However, we are unable to discern how the trial court derived its ultimate income figures from the evidence in the record, so we remand for further findings.

Facts

Pursuant to a 2015 consent order, defendant’s monthly alimony obligation was $5,300. However, in 2017, he left a lucrative job at Hitachi Data Systems because of a change in corporate direction. He took a sales

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8 / OPINION DIGESTS position – earning significantly less – at Connection Enterprise. He was ultimately let go because of poor performance. While defendant continues to search for work, he operates his own company offering construction project design and project management services. He also works as a handyman. Defendant is earning substantially less than when he was employed by either Hitachi or Connection Enterprise. Plaintiff has not held a full-time paid job since 1998. However, she does substantial volunteer work, including serving as vice-president of a successful non-profit, which takes in approximately $400,000 in annual revenue. The trial court reduced defendant’s monthly alimony obligation to $1,966.90.

Discussion

There was competent evidence to support the trial court’s findings that defendant expected to make as much money at Connection Enterprise as he had at Hitachi and that he attempted to make himself more marketable by earning certificates in his field and obtaining professional assistance to improve his resume and LinkedIn profile. The trial court’s findings reflect a reduction in defendant’s income that was substantial and sustained, affecting his ability to satisfy his alimony obligation, and which defendant did not engineer in bad faith. The trial court found that plaintiff “would likely be able to obtain a job that would cover most, if not all,

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 Ju n e 6, 2022

of her reasonable monthly needs” if she “devoted herself to a good faith job search as diligently as she has worked in part-time and uncompensated positions.” This indicates that the trial court considered liquidating defendant’s assets unnecessary because the original award overcompensated plaintiff relative to her current needs. In that the court reduced the alimony award, it follows that the court deemed it unfair to require defendant to deplete his estate to satisfy the original obligation. Plaintiff argues that, because income was not imputed to her at the time the consent order was entered, it cannot be imputed to her on a motion to modify; pursuant to the original order, plaintiff had no duty of self-support for 14 years. We are not persuaded. On a motion to modify alimony, the trial court may consider whether the dependent spouse’s financial need has changed, in accordance with the factors listed in G.S. § 50-16.3A(b). Because the “relative earnings and earning capacities of the spouses” is specifically delineated as a relevant factor in determining a party’s alimony obligation on a motion to modify, the trial court did not err as a matter of law in imputing income to plaintiff in a proceeding to modify alimony when income was not imputed to her at the entry of the alimony consent order. Plaintiff next challenges the trial court’s findings regarding the bad faith suppression of her income. Bad faith for the dependent spouse means shirking the duty of

self-support. Plaintiff was the vice-president of the financially successful nonprofit corporation, Math/Science Nucleus, and served on its board of directors; she managed familyowned land in Halifax County; she rehabilitated and fostered animals; and she performed public forestry services “as a favor to the county.” Based on this evidence, the trial court found that plaintiff could likely obtain gainful employment if she “devoted herself to a good faith job search as diligently as she has worked in part-time and uncompensated positions[.]” The trial court’s determinations that plaintiff willfully suppressed her income and that “[a]n imputation of income to Plaintiff would be appropriate because she has failed to earn according to her earning capacity in bad faith” are adequately supported by its findings. Accordingly, the trial court did not abuse its discretion in imputing income to plaintiff. However, we are unable to determine just how the trial court applied the evidence before it to arrive at its determinations that (1) defendant’s annual income is $100,000 and (2) plaintiff has the ability to earn at least $40,000 per year. Remanded. Davidson v. Davidson (Lawyers Weekly No. 012-168-22, 34 pp.) (Valerie Zachary, J.) Appealed from Iredell County District Court (Carole Hicks, J.) Charles Clanton and Edward Greene for plaintiff; Alex Graziano for defendant. 2022-NCCOA-267

Domestic Relations DVPO – Harassment – ‘Legitimate Purpose’ Even though the parties were involved, not only personally, but also professionally, threatening to harm someone or to burn their home because of a business dispute would not constitute a “legitimate purpose” under G.S. § 14-277.3A(b)(2). We affirm the trial court’s issuance of a domestic violence protective order. Plaintiff testified he believed a pistol he found in the parties’ home was going to be used to harm him and that defendant’s repeated threats to burn down his house (after she moved out) were genuine. Along with this evidence, plaintiff testified defendant struck him multiple times during heated arguments. A reasonable mind might find this evidence adequate to support a finding that defendant suffered substantial emotional distress. Because the current statute defining domestic violence, G.S. § 50B-1(a) (2), includes a harassment provision, and the trial court found plaintiff was “in fear of continued harassment that rises to the level of substantial emotional distress,” the trial court’s findings of fact support its conclusion of law that defendant committed acts of domestic violence. Hitchcock v. Rupert (Lawyers Weekly No. 012-169-22, 8 pp.) (Jeffery Carpenter, J.) Appealed from Brunswick County District Court (Quintin McGee, J.) Howard Jacob-

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son for defendant; Dana Hitchcock, pro se. 2022-NCCOA-268

Domestic Relations Parent & Child – Out-of-State Visitation – Contingency Plan Although the trial court allowed the respondent-mother to have supervised, in-person visitation with “Josh,” the court neither explained why such visitation must occur in Ohio (where Josh lives with his father) nor provided for visitation in the event respondent is unable to travel to Ohio. The order also failed to provide any direction as to the frequency of the supervised visitation. We affirm the permanency planning order in part, vacate it in part, and remand for new findings and a visitation plan that complies with G.S. § 7B-905.1(c). The trial court found that “Lucy” was a neglected and abused juvenile; the permanent plan for Lucy had already been achieved; Lucy had been living with her father in Ohio for the past eight months and thriving; respondent had pending criminal charges related to her boyfriend’s alleged abuse of Lucy, and due to these charges was not entitled to visitation or contact with Lucy; and respondent had failed to comply with any courtordered assessment or treatment services since the last court order. The trial court did not abuse its discretion by denying respondent visitation with Lucy. Although the

trial court could have articulated more precisely findings as to why respondent was an “unfit” parent, we conclude the totality of the findings were sufficient to support the conclusion that respondent is not entitled to visitation or contact with Lucy. In re L.B. (Lawyers Weekly No. 012-170-22, 17 pp.) (April Wood, J.) Appealed from Cleveland County District Court (James Hodges, J.) Charles Wilson for petitioner; Sophie Goodman for guardian ad litem; Anné Wright for respondent. 2022-NCCOA-271

Domestic Relations Parent & Child – Permanency Planning Order – Reunification Steps When the permanent plan is reunification, the trial court must provide parents with a specific plan to measure their degree of success or failure towards reunification. The trial court’s three steps for the respondent-Mother – continuing to have visitation, contacting the social worker and attending team meetings, and being available for monthly home visits from the social worker – were insufficient. Where the DSS case plan addressed the reasons for the neglect adjudication and “Sarah’s” removal from Mother’s care, the trial court could have ordered Mother to comply with the provisions in the DSS case plan, but it did not. We vacate the permanency

OPINION DIGESTS / 9 planning order and remand for the trial court to set out a specific and measurable case plan against which DSS’s reasonable efforts and Mother’s progress towards reunification can be measured. While visitation is important, it is not the same thing as setting out a plan for Mother to receive services to address the direct and indirect causes of the neglect adjudication and thereby make progress toward reunification. The second action step to make contact with a social worker and attend meetings is too general and also does not address the particular facts that led to government intervention here. Finally, while the requirement that Mother receive home visits corresponds with one reason for the neglect findings, i.e., Sarah being “very dirty” on past home visits, it does not address the many other reasons for the neglect adjudication including Mother providing for Sarah’s medical and educational needs, Mother’s mental health issues, and the domestic violence between Mother and her partner. Mother’s consistent refusal to cooperate with DSS’s prior efforts to work with her does not eliminate the need for the trial court to order a case plan. In re S.F.D. (Lawyers Weekly No. 012-171-22, 16 pp.) (Donna Stroud, C.J.) Appealed from Graham County District Court (Kristina Earwood, J.) Jane Thompson for petitioner; Lee Gilliam for respondent; Matthew Wunsche for guardian ad litem. 2022-NCCOA-273

Civil Practice Involuntary Commitment – Danger to Others – Refusal of COVID-19 Test The state argues that the respondent-patient’s refusal to take a COVID-19 test in the middle of an outbreak on the patient’s unit “on its own, consists of being dangerous to others.” The state cites no authority for this contention, perhaps in part because legal issues from the COVID-19 pandemic are just starting to travel to our appellate courts. However, we decline to subscribe to a bright-line rule without further evidence that respondent was creating a substantial risk of bodily harm to people around her. The trial court’s findings do not support its conclusion that respondent was a danger to others. We vacate and remand for further proceedings. The trial court’s findings fail to establish that respondent was (1) currently a danger to others or (2) that there was a reasonable probability that she would be a danger to others in the future. G.S. § 122C3(11)(b) requires both elements to be satisfied. If we consider that the only evidence of “dangerousness to others” was respondent’s “screaming and cussing and yelling” and refusing to take a COVID-19 test while there was an outbreak on the unit, these actions fall short of what is required. Similarly, respondent’s threat to sue her psychiatrist is not “a substantial risk of serious bodily

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10 / OPINION DIGESTS harm[.]” § 122C-3(11)(b). We further note that refusal to take medication does not support a dangerousness to others finding. In re T.S. (Lawyers Weekly No. 012-172-22, 6 pp.) (Chris Dillon, J.) Appealed from Mecklenburg County District Court (Kimberly Best, J.) John Tillery for the state; Sterling Rozear for respondent. 2022-NCCOA-274

Domestic Relations Parent & Child – Abuse & Neglect – Siblings’ Adjudication C.L., D.L. and E.L. – S.L.’s three younger siblings – all lived in the same house as S.L.; this home included their father – who used methamphetamine, sexually abused S.L. and provided S.L. with methamphetamine – and the respondentmother – who knew of the ongoing sexual abuse of S.L. by the father, allowed the father to continue living in the home despite her knowledge of his sexual abuse of S.L. and herself provided S.L. with marijuana. Since the statutory definition of a neglected child includes living with a person who has abused or neglected other children, and since the weight to be given that factor is a question for the trial court, the trial court was permitted to conclude that C.L., D.L. and E.L. were neglected based on evidence that the father had abused S.L. We affirm the trial court’s order (1) adjudicating S.L. as abused and neglected and (2) adjudicating C.L., D.L. and E.L. as neglected. In re C.L. (Lawyers Weekly No. 012-173-22, 21 pp.) (John Arrowood, J.) Appealed from Yadkin County District Court (David Byrd, J.) James Freeman for petitioner; Jacky Brammer for respondent; Matthew Wunsche for guardian ad litem. 2022-NCCOA-270

Domestic Relations Parent & Child – Termination of Parental Rights – Motion to Proceed Pro Se Even though the trial court’s colloquy with the respondent-mother showed that respondent wished to represent herself, the trial court did not abuse its discretion in declining respondent’s request to proceed pro se. We affirm the termination of respondent’s parental rights. Former G.S. § 7A-631 required the trial court to protect a parent’s “right of self-representation.” That statute was repealed effective 1 July 1999. In re J.R., 250 N.C. App. 195, 791 S.E.2d 922 (2016), held that “by removing the language specifically requiring the trial court to protect the right of self-representation, the General Assembly also eliminated any statutory right to self-representation.” G.S. § 7B-1101.1(a1) says, “A parent qualifying for appointed counsel may be permitted to proceed without the assistance of counsel only after the court examines the parent and makes findings of fact sufficient to show that the waiver is knowing and voluntary.” The current statute does not require the trial court to allow parents to waive counsel and represent themselves, but rather gives the court the discretion to do so.

Here, the trial court fulfilled its obligation to make an inquiry into the knowingness and voluntariness of respondent’s request to waive counsel by making sufficient findings of fact regarding the issue. The trial court’s analysis and ultimate conclusion from the bench reflected a serious consideration given to respondent’s concerns. Although the trial court, acting in its discretion, denied her request, the trial court found that she would be better represented in the matter with the assistance of counsel. Nothing in the record suggests an abuse of the trial court’s discretion. Affirmed. In re S.B. (Lawyers Weekly No. 012-174-22, 12 pp.) (Fred Gore, J.) Appealed from Orange County District Court (Sherri Murrell, J.) Deana Fleming for petitioner; Garron Michael for respondent; Heather Williams Forshey and Katelyn Heath for guardian ad litem. 2022-NCCOA-272

Tort/Negligence Contributory Negligence – Vehicle & Bicycle Collision – Left Turn At an intersection, the plaintiffcyclist – who had a white blinking light on the front of her bicycle, a red light on the back of her bicycle, and a red blinking light attached to the back of her jersey – had a green light and began traveling southbound through the intersection. She saw defendant, who was on the northbound side of the road, signaling a left turn but waiting for the vehicles traveling southbound to pass through the intersection. Plaintiff was entitled to assume defendant would do the same for her, but he did not, and defendant’s vehicle collided with plaintiff’s bicycle. There was no more than a scintilla of evidence that plaintiff was contributorily negligent. We reverse the verdict in defendant’s favor and remand for a trial on the issue of damages. While a plaintiff has a duty to take due care on the road, he is entitled to assume, even to the last moment, that a driver will comply with the law and stop before illegally entering a highway or intersection. Our conclusion might be different had plaintiff run into defendant. But plaintiff was already occupying her lane of travel when defendant crossed into the intersection. Klapp v. Buck (Lawyers Weekly No. 012-175-22, 6 pp.) (Chris Dillon, J.) Appealed from Mecklenburg County Superior Court (Donnie Hoover, J.) Helen Baddour and Ann Groninger for plaintiff; John Barringer and Sharon Suh for defendant. 2022-NCCOA-276

Domestic Relations Parent & Child – Guardianship – Constitutional Right to Parent – Prioritizing Mother Even though the respondent-father made progress on his own case plan, “Iris’s” mother did not, and respondent continuously prioritized the needs of the mother over those of Iris, despite the mother’s substance abuse, criminal offenses, and physical aggression towards him. The evidence tends to show that respondent failed to shoulder the responsibilities attendant to rearing Iris

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by continuing the prioritize his or the mother’s desires over Iris’s wellbeing. We affirm the trial court’s conclusion that respondent acted inconsistently with his constitutionally protected status as a parent. In re C.A.M. (Lawyers Weekly No. 012-176-22, 29 pp.) (April Wood, J.) Appealed from New Hanover County District Court (J.H. Corpening, II, J.) Jill Cairo for petitioner; Neil Riemann for guardian ad litem; Jeffrey Miller for respondent. 2022-NCCOA-269

(4), the trial court properly classified defendant’s 1982 conviction for possession of a weapon of mass destruction as of the date he committed the assault in question, i.e., 8 February 2020. The trial court did not err in calculating defendant’s prior record level as a level IV. State v. Adams (Lawyers Weekly No. 012-178-22, 9 pp.) (John Tyson, J.) Appealed from Guilford County Superior Court (Stuart Albright, J.) Shawn Maier for the state; Benjamin Kull for defendant. 2022-NCCOA-278

Contract

Civil Practice

Construction – Drilling Subcontractor – Project Inspector

Discovery – Late Response – Objection Waiver – Attorney-Client Privilege & Work Product

At first, the defendant-supervisor made notations in its reports when the plaintiff-drilling subcontractor reached “auger refusal,” but the supervisor ultimately determined that plaintiff was not demonstrating true auger refusal and discontinued the use of this notation. In the absence of any evidence that the supervisor was contractually obligated to determine and record whether plaintiff had reached augur refusal, the trial court could determine that plaintiff’s bad-faith claim failed as a matter of law. We affirm summary judgment for the supervisor. We also affirm judgment for the defendant-prime contractor. Plaintiff made cell-phone recordings of conversations with the prime contractor’s representatives, but – despite discovery requests – plaintiff did not produce those recordings before playing them for the contractor’s employee, Dwayne Durham, at his deposition. The court reporter did not record the portions of the audio recording played for the deponents; instead, the transcript merely states “Playing Recording” during the times plaintiff played the recordings. Since Durham died a couple of months after his deposition – meaning plaintiff could not “redepose” him – the trial court did not abuse its discretion when it excluded the portions of the deposition transcript related to the audio recordings. Southeast Caissons, LLC v. Choate Construction Co. (Lawyers Weekly No. 012-177-22, 26 pp.) (Toby Hampson, J.) Appealed from Forsyth County Superior Court (Richard Gottlieb, J.) Randolph James for plaintiff; Robert Burchette, David Brennan, Steve Pharr, Kyle Leopard, Adrianne Chillemi, Kenneth Dantinne and Sarah Sawyer for defendants. 2022-NCCOA-277

Criminal Practice Assault – Intent to Kill – Sentencing – Prior Record Level Even if the trial court erred in denying defendant’s motion to dismiss based on the state’s failure to prove an intent to kill, since the jury found defendant guilty of the lesser-included offense of assault with a deadly weapon inflicting serious injury, defendant has not shown prejudice. Defendant made no attempt to show the jury’s consideration and rejection of the “with intent to kill” element created any likelihood of a different verdict on the lesser-included charge. We find no error in defendant’s conviction or sentence. Pursuant to G.S. § 15A-1340.14(c)

Where defendant was 31 days late – after extensions – in serving her discovery responses, the trial court did not abuse its discretion when it ruled that she had waived all objections to plaintiff’s discovery responses, including objections grounded in the attorney-client privilege and the work-product doctrine. We affirm the trial court’s order compelling discovery. Defendant’s discovery responses were originally due by 6 April 2020. Taking into account an extension granted by the trial court and other pandemic-related extensions, defendant’s responses were due on 1 June 2020, yet she did not serve her responses until 2 July 2020. In Addison Whitney, LLC v. Cashion, 2018 WL 2084678 (N.C. Super. Ct. Feb. 26, 2018), the Business Court applied a six-factor test to determine whether failure to timely respond to interrogatories and requests for production of documents amounted to an automatic waiver of all objections to the discovery requests. Based on the factors considered in Whitney, defendant argues the trial court should have found good cause to excuse her late filings and preserve her privilege-based objections. Whitney is not binding on this court nor was it binding on the trial court. The trial court was not required to consider defendant’s untimely responses in light of the Whitney decision and neither are we. It is not lost on us that defendant and her original counsel failed to timely serve discovery responses at an unprecedented time for our society, including the legal profession. But we are bound by a standard of review that requires deference to the trial court’s discretion regarding the appropriate sanction for a violation of the discovery deadline. We will not disturb the trial court’s order compelling discovery absent a showing it abused its discretion. Affirmed. Kean v. Kean (Lawyers Weekly No. 012-179-22, 12 pp.) (Lucy Inman, J.) Appealed from Iredell County Superior Court (Steven Warren, J.) Kip David Nelson, Marilyn FeuchsMarker and Jessie Conley for plaintiff; Preston Odom, John Buric and John Brickley for defendant. 2022-NCCOA-275

Real Property Sale Contract – Multiple Sellers – Separate Deeds The three adult defendant-heirs and the father of a minor heir agreed to sell real property, which

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the heirs had inherited, to plaintiff. Defendants admitted in their answer that they failed to fulfill their obligations under the contract when each adult heir presented plaintiff with a separate deed for his or her undivided interest in the property; the contract required a single deed from all the heirs. We affirm summary judgment in favor of plaintiff.

Facts

In March 2019, the three adult heirs and the father of the minor heir entered into the contract to sell their inherited property to plaintiff for $38,000. The property was subject to a deed of trust in favor of the State Employees Credit Union (SECU) with a balance of around $12,000. A guardian ad litem (GAL) was appointed to represent the minor heir. In May 2019, the superior court authorized the GAL to sell the property to plaintiff pursuant to the contract. The order of sale required any proceeds first satisfy SECU’s deed of trust before being deposited with the clerk of court for the minor’s benefit. SECU had already calendared a foreclosure sale. The adult heirs tendered three separate deeds, each conveying their fractional interests. Plaintiff requested a single deed executed by all four heirs. Instead, defendants posted the property for upset bid pursuant to the statutes governing judicial sales of guardianship real property. Defendants subsequently dismissed the guardianship sale proceeding,

and the property was sold through SECU’s foreclosure proceeding for $99,750, netting $78,818.56 in surplus funds. The clerk of court disbursed the funds to the heirs. Plaintiff filed suit, seeking damages for breach of the sale contract. The three adult heirs’ answer admitted that their tender of three separate deeds did not satisfy their obligation under the contract. The trial court granted summary judgment for plaintiff in the amount of $59,881.

Discussion

Where the pleadings or proof of either party discloses that no cause of action or defense exists, a summary judgment may be granted. Allegations contained in the pleadings of the parties constitute judicial admissions which are binding on the pleader as well as the court. Here, plaintiff alleged that defendants contracted to sell the property pursuant to the contract and that defendants failed to do so. In their answer, defendants alleged that (1) they were required by the contract to convey all interest in the property; (2) their provision of three deeds conveying fractional interests failed to fulfill that term of the contract; and (3) they were ultimately unable to perform under the contract due to SECU’s foreclosure on the property. Having made these allegations without amending, altering, or withdrawing them, defendants judicially admitted to the contract’s terms and their ultimate failure to perform thereunder, and the trial court was bound to accept those ad-

missions as fact. Affirmed.

Civil Practice

Dissent

Interlocutory Appeals – Appointed Expert’s Fee – Initial Payment

(Arrowood, J.) The sale contract contemplates plaintiff’s purchase of a fee simple interest in the property in question. However, the minor heir’s father was not appointed as GAL to represent her interests, so the contracting parties were unable to convey a fee simple interest in the property. Defendants were unable to assent to the terms provided in the contract, so there was no meeting of the minds between the parties. Furthermore, foreclosure proceedings had been instituted prior to the execution of the contract. Plaintiff did not tender payment to defendants pursuant to the contract. Under the circumstances, it is appropriate to view plaintiff similarly to a third-party bidder. Accordingly, in order to fix its rights in the property, plaintiff was required to succeed in the upset bidding process or remain the highest bidder after the upset bidding process began. Plaintiff, however, did not submit any upset bids, much less emerge as the high bidder. Because plaintiff failed to fix its rights in the property, plaintiff is unable to prevail in its breach of contract claim. I would reverse. West 4th, LLC v. Brown (Lawyers Weekly No. 012-180-22, 24 pp.) (Lucy Inman, J.) (John Arrowood, J., dissenting) Appealed from Durham County Superior Court (James Hardin, J.) Robert Shields for plaintiff; Robert Brown for defendants. 2022-NCCOA-279

An order which does not completely dispose of an issue does not affect a substantial right. The trial court ordered plaintiff to pay the initial fees for an expert witness to value his company. However, the order indicates that the final apportionment of fees will be evaluated at the parties’ equitable distribution hearing and will be factored into the trial court’s equitable distribution order. Thus, the trial court’s order is temporary in nature and does not affect a substantial right. We dismiss plaintiff’s appeal of the order requiring him to pay the expert’s fee. Maiwald v. Maiwald (Lawyers Weekly No. 012-181-22, 8 pp.) (Fred Gore, J.) Appealed from Catawba County Superior Court (Andrea Plyler, J.) Erica Nesmith for plaintiff; Scott Hanvey for defendant. 2022-NCCOA-321

Tort/Negligence Dog Bite – Ordinary or Gross Negligence – Strict Liability – Insufficient Allegations – Voluntary Dismissal The minor plaintiff alleged that the defendant-neighbors’ Australian Shepherd ran into her yard and bit her, but the complaint did not allege (1) that the dog was dangerous, (2) that the neighbors should have

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12 / OPINION DIGESTS known of any dangerous propensities, (3) that the Australian Shepherd was a dangerous dog under G.S. § 67-4.1, or (4) that the neighbors failed to abide by any statute, ordinance or regulation. Accordingly, plaintiff failed to state a claim for ordinary negligence, gross negligence or strict liability. We affirm the trial court’s grant of defendants’ motion to dismiss. After the trial court heard the parties’ arguments, plaintiff’s counsel announced to the court that he was “going to voluntarily take a dismissal without prejudice at this time,” and explained to the court, “We’ll have one more year to re-file this claim.” On appeal, plaintiff fails to furnish this court with a legitimate argument as to why the trial court was constrained to dismiss her complaint without prejudice as a consequence of counsel’s announcement. Nor does she set forth any argument or cite any case law in support of this claim. It is not the job of this court to create an appeal for plaintiff or to supplement an appellant’s brief with legal authority or arguments not contained therein. Thus, this argument is abandoned. Campos v. Hausler (Lawyers Weekly No. 012-182-22, 11 pp.) (Valerie Zachary, J.) Appealed from Cabarrus County Superior Court (Lora Cubbage, J.) Cecil Jenkins for plaintiff; Andrew Dandison and Duane Jones for defendants. 2022-NCCOA-302

Attorneys Fee Dispute – Subject Matter Jurisdiction – Disqualification Where the defendant-attorney filed a counterclaim for unpaid fees in response to a legal malpractice action brought by his former client, and where no fee dispute resolution process had been commenced prior to the attorney filing his counterclaim, the trial court was not stripped of its jurisdiction over the counterclaim by the State Bar’s fee dispute resolution program. We affirm judgment for defendants.

Fee Dispute

N.C.R.P.C. 1.5(f)(1) requires a lawyer who has a fee dispute with a client to notify the client in writing of the State Bar’s fee dispute resolution program before the lawyer initiates legal proceedings to collect the disputed fee. 27 N.C.A.C. 1D.0707(a) also sets out the notice requirement for the fee dispute resolution program. Cunningham v. Selman, 201 N.C. App. 270, 689 S.E.2d 517 (2009), held that, once an attorney has commenced negotiations over a fee dispute in the State Bar’s fee dispute resolution program, he may not file an action in Superior Court until the process has completed because the trial court will not have jurisdiction over such a complaint. However, this holding does not apply here, where the lawyer counterclaimed for the disputed fee in a legal malpractice action before any fee dispute resolution process had begun. The State Bar’s rules and regulations are adopted pursuant to G.S. Chapter 84, Article 4. Regarding the existence of these rules and the jurisdiction of the General Court of Justice, G.S. § 84-36 says, “Nothing contained in this Article shall be

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construed as disabling or abridging the inherent powers of the court to deal with its attorneys.” Under G.S. §§ 7A-240, 84-36, the trial court had original jurisdiction over the defendant-law firm’s counterclaim. Accordingly, because the law firm had filed its counterclaim to collect fees in response to plaintiffs’ legal malpractice action, and because a fee dispute resolution process had not been commenced with the State Bar, the trial court could not be deprived of jurisdiction over the firm’s counterclaim. Therefore, unlike in Cunningham, the trial court had subject matter jurisdiction and correctly denied plaintiffs’ motion for a directed verdict.

tion under N.C. R. Civ. P. 60(b)(6) violated her right to due process. But even if she had, defendant has made no argument that the trial court erred when it ruled that it could not grant the relief defendant requested: to set aside one provision of an equitable distribution consent order. We affirm the trial court’s dismissal of defendant’s Rule 60 motion. Dozier v. Dozier (Lawyers Weekly No. 012-184-22, 8 pp.) (Fred Gore, J.) Appealed from Durham County District Court (Amanda Maris, J.) Jill Jackson for defendant; Kirsten Grieser for plaintiff. 2022-NCCOA-307

Disqualification

Domestic Relations

Attorney Brian Upchurch worked at the defendant-law firm and represented plaintiffs. Upchurch left the firm and became in-house counsel for a corporation. Plaintiffs were having difficulty retaining counsel to represent them in this legal malpractice action. Upchurch reviewed the matter for plaintiffs and produced a document intended to help plaintiffs’ presentation to attorneys. Upchurch left the corporation and went into private practice. He began to represent plaintiffs on other matters. Upchurch spoke to defendant Thomas Wilson about potentially returning to the defendant-law firm. Upchurch mentioned that he was representing plaintiffs on other matters and asked about their legal malpractice action. Wilson discussed the matter with Upchurch. Where Upchurch had advised plaintiffs on their malpractice claims, and where he had a formal attorneyclient relationship with plaintiffs as to other matters, there was evidence to support the trial court’s conclusion that “Upchurch acted, in fact, as the lawyer for the Plaintiffs” at the time of his meeting with Wilson. Since plaintiff Cecil Holcomb had asked Upchurch to represent him in the legal malpractice action against defendants, Upchurch knew or reasonably should have known that Wilson was represented by counsel in this case at the time of their meeting. Therefore, Upchurch should not have engaged in discussion of plaintiffs’ legal malpractice action with Wilson at their meeting regardless of whether he asked Wilson directly about the litigation or they discussed the case generally in relation to Upchurch’s joining the defendant-law firm. Such communication in these circumstances violates N.C.R.P.C. 4.2. The trial court did not abuse its discretion in disqualifying Upchurch from serving as plaintiffs’ counsel based on a Rule 4.2 violation. Affirmed. Cecil Holcomb Renovations, Inc. v. Law Firm of Wilson & Ratledge PLLC (Lawyers Weekly No. 012183-22, 24 pp.) (Darren Jackson, J.) Substituted opinion. Appealed from Wake County Superior Court (Bryan Collins, Jr., J.) Matthew Van Horn for plaintiffs; David Coats for defendants. 2022-NCCOA-303

Domestic Relations Consent Order – Single Provision – Civil Practice – Rule 60 Motion Defendant did not preserve for appellate review her argument that the trial court’s dismissal of her mo-

Parent & Child – Custody Modification – Decision-making Authority The trial court made findings regarding how the circumstances surrounding the parties’ child’s education have changed but not how those changes affected the child. Accordingly, the trial court’s findings are insufficient to support its modification of the parents’ joint legal custody so as to give the defendant-mother final decision-making authority. We reverse the trial court’s order modifying child custody. The trial court made unchallenged findings that the plaintifffather had moved to Virginia; the defendant-mother had moved out of the district in which the parties’ child attended elementary school, so that she must apply for a waiver each year; due to the pandemic, the child’s public school is on a hybrid schedule of two days in-person learning and three days remote learning; the child has the opportunity to attend a private school, which has full-time in-person learning; the child was eligible for a partial scholarship, and the mother would pay the rest of the tuition; and the father objected to removing the child from the public school at which she was doing well. Based on these findings, the trial court did not abuse its discretion in concluding that there was a substantial change in circumstances. However, the substantial change in circumstances centers around the parties’ disagreement over whether the minor child can attend Grace Christian School. We conclude this is not a set of circumstances where the effect on the minor child is selfevident; consequently, the trial court must make findings on the connection between the substantial change in circumstances and the welfare of the minor child before the trial court may modify child custody. Our review of the trial court’s findings of fact and conclusions of law shows no findings as to the connection between the substantial change in circumstances and the minor child’s welfare. As a result, we conclude the trial court erred in modifying child custody. We also note that the trial court erred in granting the mother primary decision-making authority after awarding joint legal custody. Upon granting joint legal custody, the trial court may only deviate from “pure” legal custody after making specific findings of fact. The extent of the deviation from pure legal custody is immaterial. The trial court’s findings show that both parents remain fit and

proper to have joint legal custody. Thus, the trial court’s findings regarding one singular disagreement between the parties are insufficient to justify granting the mother final decision-making authority in all matters. Reversed.

Dissent

(Wood, J.) The trial court concluded that there had “been a substantial and material change in circumstances that materially affect[s] the welfare of the minor child.” A substantial change in circumstances which inhibits a child’s ability to obtain an education necessarily affects the child’s welfare. A child has the inherent right to obtain an education in North Carolina. A substantial change in circumstances which affects this right, in turn, effects the child’s welfare. Thus, the trial court did not err by concluding the minor child’s welfare was affected because the trial court’s findings support this conclusion; accordingly, I would affirm the trial court’s order modifying child custody. As to the delegation of decisionmaking authority to the mother, the trial court found that the parties were in conflict as to the child’s education and there needed to be a final decision maker when the parties reach an impasse. The court also found that the mother is mainly responsible for the child’s daily activities and care and that allowing her final decision-making authority in situations where the parties cannot agree after good faith discussions was in the child’s best interest and would prevent situations where the child’s opportunities were limited simply because the parties could not agree. The trial court thus made the required, specific findings as to why a split in decision-making authority was necessary and in the child’s best interest. I would affirm. Johnson v. Gyurisko (Lawyers Weekly No. 012-185-22, 27 pp.) (Fred Gore, J.) (April Wood, J., concurring in part & dissenting in part) Appealed from Moore County District Court (Tiffany Bartholomew, J.) Craig Michael Johnson, pro se; Arthur Blue for defendant. 2022-NCCOA-320

Civil Practice Interlocutory Appeals – Counterclaims Dismissal Defendant appeals from the trial court’s dismissal of her counterclaims, but she fails to make any argument in her opening brief explaining how the trial court’s order affects a substantial right, failing even to recognize that the order is interlocutory. Appeal dismissed. Craige Jenkins Liipfert & Walker, LLP v. Woods (Lawyers Weekly No. 012-186-22, 4 pp.) (Chris Dillon, J.) Appealed from Forsyth County Superior Court (Eric Morgan, J.) Lori Edwards for plaintiff; Carmelen Woods, pro se. 2022-NCCOA-304

Tort/Negligence Damages – Jury Verdict – Factual & Legal Inconsistencies – Storage Unit Sale Where (1) defendants mistakenly marked plaintiffs’ paid-up storage

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unit as delinquent and sold its contents; (2) plaintiffs sued defendants, alleging several causes of action; (3) each cause of action should have yielded the same damages if the jury found defendants liable; yet (4) the jury awarded only nominal damages as to plaintiffs’ claims for negligence, conversion and breach of contract while awarding damages of $19,098 as to plaintiffs’ unfair trade practices claim, the jury’s verdict is irreconcilably inconsistent. We remand for a new trial on damages. Where, as a matter of law, a claimant is entitled only to the same nominal or actual damages on every claim, it is impossible to discern whether the jury found no actual damages, found some actual value of the claimants’ loss, or assessed damages on some other basis not rooted in the evidence or law. Because these factual and legal inconsistencies are only for the jury to resolve, the trial court abused its discretion in declining to require a new trial and entering a judgment that effectively vacated the jury’s findings that contradicted its unfair trade practices award. Since the jury was unequivocal in finding defendants liable on each

cause of action submitted to it, no new trial on liability is required. Davis v. Smartop, Inc. (Lawyers Weekly No. 012-187-22, 19 pp.) (Lucy Inman, J.) Appealed from Carteret County Superior Court (Paul Quinn, J.) Joseph Dupree and Stephanie Murad for plaintiffs; Stevenson Weeks for defendants. 2022-NCCOA-305

Real Property Condemnation – POA Common Area – Lot Owners’ Easements – Land Subject to Taking Even though the individual lot owners in the McClendon Hills Subdivision have easements in the common areas that are being taken by the Department of Transportation to widen Highway 211, since there is no evidence that the lot owners’ interest is anything other than common amongst the entire membership – i.e., the lot owners do not have individualized claims based on the location of their lots – the defendant-property owners’ association can adequately represent the interests of the individual lot owners. The individual lot owners are

not necessary parties. We affirm the trial court’s order, which did not join the individual lot owners and did not define the property subject to taking as the entire subdivision. In determining whether condemned land is part of a unified tract, North Carolina courts consider several factors, including unity of ownership. Absent unity of ownership, multiple parcels of land cannot be regarded as a single tract for the purpose of determining a condemnation award. The common area taken by the DOT is owned by the POA in fee simple. The POA relies on a Texas case to argue that the POA’s right to levy annual dues and special assessments on the individual lot owners constitutes an inherent property interest in all the individual subdivision lots. However, we are not bound by the Texas decision, and North Carolina does not recognize the right to levy dues and assessments as an inherent property right. The POA does not have an interest or estate in the land it seeks to be included in the whole and only has an estate in the common area land taken by the DOT. Unity of ownership does not exist between the land

taken and the land the POA seeks to be included in the whole. Affirmed. Department of Transportation v. McLendon Hills Property Owners’ Association (Lawyers Weekly No. 012-188-22, 20 pp.) (Darren Jackson, J.) Appealed from Moore County Superior Court (James Webb, J.) Kelly Moore for plaintiff; Keenya Justice for defendant. 2022-NCCOA-306

Tort/Negligence Civil Practice – Choice of Law – Lex Loci & Most Significant Relationship Tests – Labor & Employment The defendant-employee allegedly accepted a job with a direct competitor of the plaintiff-employer and – before leaving his job with plaintiff – sabotaged plaintiff’s bid for a project. Even though plaintiff is a North Carolina company, defendant worked from his home office in Virginia, and plaintiff’s claims arise out of defendant’s behavior affecting a Virginia project. Since the last event necessary to make defendant liable or the last event required to constitute the cause of action took place in Virginia, under the lex loci

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14 / OPINION DIGESTS test, Virginia law applies to plaintiff’s claims. Applying the most significant relationship test yields the same result. Defendant’s motion to dismiss is granted as to plaintiff’s claims under the North Carolina Trade Secrets Protection Act and the North Carolina Unfair and Deceptive Trade Practices Act, as these statutes provide no source of liability under Virginia law. However, the complaint states claims under Virginia law for breach of fiduciary duty and tortious interference with prospective economic relations; defendant’s motion to dismiss those claims is denied. Environmental Holdings Group, LLC v. Finch (Lawyers Weekly No. 020-025-22, 18 pp.) (Mark Davis, J.) Jeffrey Whitley and George Oliver for plaintiff; Mark Kutny for defendant. 2022 NCBC 25

Tort/Negligence Attorneys – Legal Malpractice Claim – Underlying Decision – Corporate Winding Up – Breach of Fiduciary Duty Nothing the defendant-attorney or the defendant-law firm could have done would have prevented the plaintiff-client from being found liable for breach of fiduciary duty, constructive fraud and unfair trade practices after plaintiff – a corporate director who knew the corporation had a creditor – transferred the corporation’s assets to himself and his new business, leaving the corporation unable to pay its debts. The court grants defendants’ motion for summary judgment on plaintiff’s legal malpractice claim. Plaintiff argues that the corporate veil of his former company, WFT, Inc., if defendants had shown that he relied on professional advice during the restructuring of WFT and when all relevant transfers of WFT’s assets were made. Although it is true that plaintiff retained K&L Gates LLP and Grant Thornton LLP, plaintiff failed to inform them that WFT had ceased business and was winding up at the time plaintiff engaged them. Moreover, they were not aware that WFT had a known creditor to whom plaintiff, as a director of WFT, owed a fiduciary duty. Had Grant Thornton known these facts, it would have advised plaintiff to satisfy creditors rather than make distributions to himself. The protections of G.S. § 55-8-30(b) do not apply when a director does not apprise the advisors of essential, relevant information. Even if plaintiff’s administrative assistant would have testified that WFT operated with an independent board of directors – proof that he did not completely dominate WFT – there was still no board approval, or even discussion, of the payments and transfers made from WFT to plaintiff. The mere fact that there were other directors does not mean that plaintiff did not exercise complete control over WFT’s affairs, and nothing in the assistant’s proposed testimony speaks to the contrary. As a corporate director, plaintiff owed a fiduciary duty to WFT’s creditor as WFT was winding up. WFT had a $12 million judgment creditor, yet plaintiff diverted WFT’s assets to his own use and to the detriment of WFT’s creditor,

thereby committing constructive fraud as a matter of law. Finally, plaintiff argues that he would not have been held liable for unfair trade practices if defendants had proven his actions were not in or affecting commerce. However, in the underlying action, the Court of Appeals held that his actions were “in or affecting commerce” under G.S. § 75-1.1(a). While the Court of Appeals’ analysis was confined to plaintiff’s transfer of WFT assets to his new company, the same analysis applies equally to his transfer of WFT assets to himself or to third parties for his personal benefit. The fraudulent transfers by plaintiff seeking to avoid WFT’s creditor negatively affect commerce and constitute violations of the Unfair and Deceptive Trade Practices Act. Motion granted. Fleming v. Horner (Lawyers Weekly No. 020-026-22, 26 pp.) (Michael Robinson, J.) Charles Rabon, Ronald Richter and Eric Steven Bland for plaintiff; Ryan Dale Bolick and Melody Jolly for defendants. 2022 NCBC 26

Insurance Wind Damage – ‘Other Insurance’ – Two Deductibles This court has previously held that an insurance policy issued to another insured was not “other insurance” within the meaning of the parties’ policies and that the defendant-insurer was not entitled to two deductibles when plaintiff’s goods were damaged on two dates. The insurer breached the parties’ policy on 28 June 2019 when it refused to reimburse plaintiff for its losses. The court enters judgment for plaintiff in the amount of $5.55 million, with interest at the rate of eight percent beginning 28 June 2019 and accruing until paid. Hyosung USA, Inc. v. Travelers Property Casualty Co. of America (Lawyers Weekly No. 020-027-22, 5 pp.) (Louis Bledsoe, C.J.) Jeffrey Long and Christopher Bechhold for plaintiff; Ryan Niland, Bryant Green and Craig Roswell for defendant. 2022 NCBC 27S

Tort/Negligence False Claims Act – Administrative – Medicaid Billing – Personal Care Services – Adult Care Facilities Pursuant to North Carolina’s Medicaid policy 3L, a provider need not document the time spent on each task of personal care services provided to a Medicaid beneficiary. The qui tam plaintiff has not shown that the defendant-adult care facilities’ system of billing Medicaid based on a beneficiary’s presence at a facility was done with knowledge, deliberate ignorance or reckless disregard of any violation of the Medicaid policy. We affirm summary judgment for defendants. Defendants’ “census” billing method functions as a form of taskbased billing for their full-time care homes. Given the special needs of their residents and defendants’ obligation to provide around-the-clock care, defendants use a census to determine the residents who received care on a given day. Defendants’ employees track the

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accomplishment of personal care service (PCS) tasks for their beneficiaries to ensure each beneficiary’s service plan is completed on any day he or she receives care. And based on completion of the tasks in a beneficiary’s daily service plan, defendants bill Medicaid for the beneficiary’s daily allotment of PCS hours any day he or she was present in the facility. We need not determine whether defendants’ interpretation of Policy 3L is correct. The policy and related guidance from NC Medicaid are sufficiently ambiguous to foreclose the possibility of proving scienter based solely on the clarity of the regulation. We cannot infer scienter from an alleged regulatory violation itself, and we especially will not do so where there is regulatory ambiguity as to whether defendants’ conduct even violated the policy. Plaintiff does not identify any evidence to suggest that defendants knew, or had any reason to believe, their interpretation of the regulation was incorrect or that defendants ignored any relevant agency guidance in reaching their conclusion. Because Policy 3L’s billing requirement for adult care homes is ambiguous and defendants’ interpretation of the policy and agency guidance is reasonable, plaintiff cannot prove, based on the policy alone, that defendants knowingly submitted false claims. To prove that defendants knowingly submitted false or fraudulent claims for payment, it is not enough to show that defendants could have sought more guidance about an ambiguous regulation. Plaintiff does not identify any evidence that defendants knew, or even suspected, that their interpretation of Policy 3L and the related guidance from NC Medicaid was incorrect (indeed, it may be right). Nor does plaintiff identify any evidence that defendants attempted to avoid discovering how the regulation applied to adult care homes or plowed ahead with a dubious interpretation despite serious doubts about its accuracy. Moreover, state and federal regulators audited defendants’ facilities numerous times without incident during the relevant period. Even if defendants’ interpretation of Policy 3L were incorrect—a question we do not decide—their actions amount, at most, to an error in judgment or mistake. Plaintiff has not identified evidence from which a reasonable jury could conclude that defendants billed Medicaid for PCS in reckless disregard of the truth or falsity of those bills, much less with deliberate ignorance or actual knowledge of falsity. Affirmed.

Dissent

(Traxler, S.J.) Plaintiff has presented evidence that defendants intentionally billed the government for the maximum amount of compensable time for PCS for every Medicaid beneficiary in every one of their adult care homes, without any inquiry whatsoever into what services the beneficiaries actually received. Plaintiff has also presented documentary and expert evidence that for every eight hours their adult care home aides worked, defendants billed Medicaid for almost 12 hours of personal care services, resulting in over 1,900,000 false claims being submitted to the Medicaid program for payment. Over a

five-year period, the losses to the Medicaid program from this overbilling could exceed $40,000,000. Plaintiff has also presented evidence that defendants did next to nothing to educate themselves about how NC Medicaid’s new Policy 3L affected their billing practices. Medicaid was billed the maximum number of authorized hours even if the beneficiary was absent from the facility for a portion of the day or received no assistance at all with his or her activities of daily living. The majority’s interpretation of the scienter element of a False Claims Act claim is far too narrow and its affirmance of summary judgment is based upon a review of the evidence in the light most favorable to defendants, not to plaintiff. Plaintiff has produced sufficient evidence from which a reasonable jury could find that defendants failed to make a reasonable and prudent inquiry into how Policy 3L affected their billing method and, instead, buried their heads in the sand to maximize their billings. United States ex rel. Gugenheim v. Meridian Senior Living, LLC (Lawyers Weekly No. 001-073-22, 34 pp.) (Allison Jones Rushing, J.) (William Traxler, S.J., dissenting) No. 20-1583. Appealed from USDC at Raleigh, N.C. (Terrence Boyle, J.) Mark Russell Sigmon, Matthew Lee, Jeremy Williams and Clifford Marshall for appellants; Jimmie Watkins Phillips, Jennifer Van Zant, Donald O’Brien and Kimberly Marston for appellees. 4th Cir.

Insurance Medical Malpractice – Declaratory Judgment Action – Abstention The plaintiff-insurer seeks a declaratory judgment that it is not required to defend the defendantphysician in an underlying medical malpractice action because the physician altered the medical records of the defendant-estate’s decedent, in violation of insurance policy § IV(e). The Virginia Supreme Court has not yet spoken as to what sort of record alterations are sufficient to breach such a provision, nor has it addressed whether such a provision is enforceable if it serves to void medical malpractice coverage. The district court did not abuse its discretion when it abstained from hearing the insurer’s claim. We affirm the district court’s dismissal without prejudice of the insurer’s declaratory judgment action. Because of the unsettled and complex nature of the state law questions at issue, Virginia’s interest in having this dispute resolved in its courts favors abstention. Furthermore, this case may more satisfactorily be adjudicated in a state proceeding because the Virginia court would have more knowledge of the evidence which § IV(e) would require the presiding court to review. The insurer argues that there is no factual overlap between this declaratory judgment action and the underlying medical malpractice action because the issue on appeal is not before the state court and never will be because neither party would risk voiding the insurance coverage. Factual overlap is not certain,

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but the risk is present and significant. The medical records are of primary importance in wrongful death suits such as this where medical malpractice is the core issue. The facts surrounding the alteration could aid the plaintiff in state court. Although this might be considered a close call, abstention here avoids the preclusive circumstances we seek to avoid. Affirmed. Medical Mutual Insurance Co. of North Carolina v. Littaua (Lawyers Weekly No. 001-074-22, 12 pp.) (Roger Gregory, C.J.) No. 21-1215. Appealed from USDC at Richmond, VA (Henry Hudson, S.J.) Danny Mark Howell and Robert Jackson Martin for appellant; Edward Kyle McNew, Thomas Williamson and Bryan Slaughter for appellee. 4th Cir.

Elections Constitutional – 14th Amendment – 1872 Amnesty Act – Congressional Candidate – Insurrection After the Civil War, § 3 of the 14th Amendment disqualified insurrectionists from holding state or federal office. The text – more specifically the verb tense – of the 1872 Amnesty Act clearly shows that Congress removed the 14th Amendment’s disqualification only from those who had, in the past, engaged in insurrection or given aid to insurrectionists. The 1872 Amnesty Act did not remove the 14th Amendment’s disqualification from all future insurrectionists. We reverse the district court’s refusal to allow a voter to intervene in this action and its interpretation of the 1872 Amnesty Act; we vacate its permanent injunction; and we remand for further proceedings.

Intervention

Relying on § 3 of the 14th Amendment, several voters filed an administrative challenge to Madison Cawthorn’s candidacy for Congress. Cawthorn filed this action in federal court. Thereafter, North Carolina’s congressional districts were redrawn. One challenger in the underlying action, Ashton, was a resident of the relevant congressional district pursuant to both the now-stricken redistricting map and the newly drawn map. We review her standing to intervene in this action. The district court exceeded the bounds of its discretion in refusing to allow Ashton to intervene. The court denied Ashton’s renewed motion principally on timeliness grounds, based on her failure to predict whether or not the state elections board would appeal. The state board defendants vigorously contested Cawthorn’s statutory argument both in their pre-hearing briefing and at the preliminary injunction hearing itself and gave no advance indication they would later decline to appeal an adverse ruling on that issue. The district court also exceeded the bounds of its discretion in concluding that intervention would “prejudice” Cawthorn by subjecting him to “‘new’ arguments, unanticipated theories, and possible re-litigation of issues already decided.” By that point, the district court had already concluded that the challengers’ arguments on the statutory issue added “little to nothing” to what

the state board defendants had already argued. And to the extent our review of the district court’s decision could be characterized as “relitigation of issues already decided,” that is part of the ordinary course of litigation rather than legally cognizable “prejudice.” Ashton plainly has “a claim or defense that shares with the main action a common question of law or fact,” and no party currently represents that interest. Fed. R. Civ. P. 24(b)(1)(B). We therefore reverse the denial of intervention as to Ashton.

Amnesty Act

The district court erred in construing the 1872 Amnesty Act (the Act) as a sweeping removal of all future Fourteenth Amendment disabilities. “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), That all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.” 17 Stat. 142. The Act’s operative clause refers to those “political disabilities imposed ” in the past tense rather than new disabilities that might arise in the future. The operative clause’s principal verb—“removed”—reinforces this conclusion. In the midnineteenth century, as today, that word generally connoted taking away something that already exists rather than forestalling something yet to come. The district court attributed to the 1872 Congress a grand, structural purpose, specifically, a desire “to reserve [for itself ] the right to decide whether one of its members has engaged in insurrection.” That atextual conjecture, however, suffers from at least two serious problems. For one thing, nothing in the Act’s text reserves to a future Congress the “right to decide whether one of its members has engaged in insurrection.” And once a given Congress has exercised its constitutional authority to lift a particular disability, it is at minimum unclear on what basis a future Congress might later refuse to seat a member on the theory that the previously rescinded disability nonetheless remains. In any event, the district court cited no evidence that Congress had such a procedure in mind when it voted for amnesty. To the contrary, the available evidence suggests that the Congress that enacted the 1872 Amnesty Act was, understandably, laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness. The 1872 Amnesty Act did not prospectively immunize Cawthorn—or anyone else—from § 3’s reach. Because the district court’s ruling was based solely on its view of the 1872 Amnesty Act, we reverse its decision and vacate the permanent injunction.

Concurrence

(Wynn, J.) Judge Richardson’s concurrence indicates that every state in the union is completely powerless to regulate candidates or ballot access. No court has ever held that view. Nor has any court ever held that U.S. Const. Art. I, § 5 prevents states from enacting eminently reasonable measures to prevent twelve-year-olds or noncitizens, for example, from running for congressional office. Yet that is precisely what the concurring opinion—as well as counsel for Cawthorn—argues the Constitution requires. Because the premises underlying this conclusion are flawed as a matter of law and common sense, I respectfully must disagree with my fine colleague who concurs separately. The text of Article I, § 5, Clause 1 plainly reads: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” U.S. Const. art. I, § 5, cl. 1. Nothing in the text of that clause says anything about “candidates,” “prospective Members,” “would-be [M]embers,” and the like. By its clear terms, it only applies to Congress’s “own Members”—those individuals elected or appointed to our national legislative body. The text of the Constitution does not grant Congress the exclusive power to judge candidate qualifications. However, under the Elections Clause, the Constitution does grant states broad powers to regulate candidates and ballot access.

Concurrence

(Richardson, J.) The House of Representatives is the sole judge of the qualifications of its members. So the district court did not have jurisdiction to consider Cawthorn’s claim under the 1872 Amnesty Act, which ultimately asked the court to determine his qualifications, a privilege and duty given only to the House itself. Cawthorn v. Amalfi (Lawyers Weekly No. 001-075-22, 73 pp.) (Toby Heytens, J.) (James Wynn & Julius Richardson, JJ., concurring separately) No. 22-1251. Appealed from USDC at Raleigh, N.C. (Richard Myers, J.) Pressly McCauley Millen, Raymond Bennett, Samuel Hartzell, Scott Anderson, Margaret Hayes Jernigan Finley, Ronald Fein, John Wallace, James Exum and Robert Orr for appellants; James Bopp and Melena Siebert for appellee; Elizabeth Wydra, Brianne Gorod, Praveen Fernandes, Charlotte Schwartz, Joshua Stein, Amar Majmundar, Stephanie Brennan, Terence Steed, Mary Carla Babb, Philip Thomas, Kevin Cline, Michael Francisco and Michael Brody for amici curiae. 4th Cir.

Domestic Relations Separation Agreement – Undue Influence – Mob-Ties Claims The defendant-wife claims she was unduly influenced to enter into the parties’ separation agreement, but her claims were based on vague statements she claimed the plaintiff-husband had made about his purported involvement with the “mob.” The wife failed to show undue influence. We affirm summary judgment for the husband. The parties’ separation agreement required the defendant-wife to sell three properties and to pay

the plaintiff-husband $45,000 from the proceeds of each sale. Defendant paid plaintiff $45,000 from the proceeds of the first two sales but refused to pay him after the third sale. Plaintiff filed suit, seeking specific performance of the separation agreement. Defendant claimed that plaintiff had made a veiled threat that, if she didn’t pay, he would have to involve “the family,” i.e., the mob. She also claimed that she only entered into the separation agreement because she believed plaintiff was or is involved in organized crime. However, defendant’s statements in support of this belief are conspicuously lacking in any particularity about the underlying details of the events or occurrences related to plaintiff’s alleged association with organized crime and defendant’s personal knowledge of such an association. For example, although defendant recounted an occasion when plaintiff allegedly confessed to her while “very drunk, very high” that he had spent time in prison in Pennsylvania for controlled substances and weapons violations and testified that “the mob boss’s attorney [] helped get him off or reduce[d] [his] sentence[,]” she offered no testimony about the basis for this belief aside from references to alleged statements made by plaintiff during the marriage. Defendant averred by affidavit that plaintiff “explained, in detail, his rank within the organized crime and his level of involvement in criminal activity”; that he “told [her] that he moved to North Carolina after being released from prison to leave the organized crime”; and that he told her “that shortly after moving, he woke up to find a deer head on his front porch.” Yet, there is no detail about plaintiff’s alleged “rank within the organized crime and level of involvement in criminal activity” in the affidavit, or elsewhere in the record, nor are any of the statements offered by defendant in support of her stated belief that plaintiff was or is involved in organized crime based on anything she personally observed or knew about firsthand. Finally, defendant admitted that she had never met anyone associated with organized crime (besides plaintiff, presumably) and that she was not aware of anyone associated with organized crime ever visiting her home (again, besides plaintiff, presumably). Defendant’s belief that plaintiff was or is associated with organized crime and her sworn statements in connection with this belief are inadmissible because the record does not demonstrate that this belief is based on defendant’s personal knowledge. Faced with an adequately supported motion for summary judgment, defendant bore the burden to come forward with facts, not mere allegations, which controverted the facts set forth in the moving party’s case. Defendant’s deposition testimony was inadmissible to the extent it lacked any foundation demonstrating it was based on her personal knowledge. N.C. R. Evid. 602. Defendant’s statements about plaintiff’s alleged involvement in organized crime and her fears related to her beliefs that plaintiff was or is involved in organized crime in her deposition testimony and in her

16 / OPINION DIGESTS affidavit do not constitute substantial evidence supporting a defense of undue influence because these statements were not based on evidence sufficient to support a finding that defendant had personal knowledge of the matter and are therefore inadmissible under Rule 602 and, with respect to the affidavit in opposition to the motion for summary judgment, violated N.C. R. Civ. P. 56(e). Affirmed. Fuchs v. Storry (Lawyers Weekly No. 012-189-22, 18 pp.) (Darren Jackson, J.) Appealed from Catawba County District Court (Sherri Elliott, J.) Wesley Starnes for plaintiff; Alan LeCroy for defendant. 2022-NCCOA-308

Domestic Relations Equitable Distribution – Classification & Valuation – Debt – Gold & Silver The defendant-husband contends that the mortgage on the marital home was refinanced to pay off the plaintiff-wife’s separate debts; however, the mortgage was refinanced and these debts were paid during the marriage. They did not exist on the date of separation. The trial court was not required to look back in time beyond the date of separation. Furthermore, there was no evidence that the mortgage debt was not marital; it was incurred during the marriage and was presumed to be marital in the absence of evidence it was separate. We affirm the trial court’s equitable distribution and alimony order. Where the trial court included the mortgage balance and a loan against defendant’s 401(K) retirement account in a list of marital property, the trial court classified these debts as marital property. Defendant claims plaintiff withdrew $12,000 from their joint bank account and that he should have been given credit for his share of these funds in the equitable distribution. However, according to defendant’s own evidence, the withdrawal happened before the date of separation. In fact, defendant agreed that plaintiff’s withdrawal of the money caused the argument that eventually led to the parties’ separation. The trial court distributes the value of assets existing on the date of separation. The trial court did not need to account for or make findings about the pre-separation withdrawal. Defendant challenges the italicized portion of the trial court’s finding that “it is expected [plaintiff] will have to go into an assisted living facility. It is uncertain whether Medicare or other governmental programs will be available to pay [the] cost of care and treatment.” Although the evidence shows that plaintiff has Medicare coverage, it is nevertheless uncertain if Medicare of another governmental program will pay for an assisted living facility. This finding is supported by testimony from plaintiff’s son regarding her medical condition, her Medicare coverage, and her need for an assisted living facility. Although evidence of defendant’s “questionable relationship with another lady” was circumstantial, adultery is nearly always proved by circumstantial evidence. Phone re-

cords showing frequent and extensive communications between defendant and another woman were competent evidence of a romantic relationship. Moreover, defendant invoked the Fifth Amendment when asked if he was romantically involved with the other woman. In a civil case, the finder of fact may use a witness’s invocation of his Fifth Amendment privilege against self-incrimination to infer that his truthful testimony would have been unfavorable to him. Defendant testified that plaintiff had removed from the marital home a can that contained scrap gold and silver: “I bet there was 25 pounds of gold and silver in that thing. . . .” However, the actual can of scrap metal was not in evidence, and there was no evidence as to the actual content of the gold and silver or of its value. Even assuming the parties did have a can of coins and “scrap jewelry” on the date of separation, the trial court must identify and value marital property only when there is credible evidence supporting the value of the asset. In this case, the parties did not file equitable distribution inventory affidavits. Given the lack of evidence for the value of the scrap gold and silver as well as the trial court’s implicit determination that defendant’s testimony as to the weight of the metals was unreliable, the trial court did not err by not making findings of fact on the matter. Affirmed. Huffman v. Huffman (Lawyers Weekly No. 012-190-22, 25 pp.) (Donna Stroud, C.J.) Appealed from Wilkes County District Court (William Brooks, J.) Anné Wright for plaintiff; Wayne Clontz for defendant. 2022-NCCOA-309

Tort/Negligence Medical Malpractice – Civil Practice – Statute of Limitations – Discontinued Action On 12 January 2018, the trial court closed this medical malpractice case on the mistaken ground that no summons had been issued by 3 November 2017 (in fact, summonses were issued on that day). On 10 August 2018, the trial court struck its 12 January 2018 order and allowed the plaintiff-patient “to move forward with the case relating the case back to where it stood as of [12 January 2018].” Since plaintiff failed to obtain alias and pluries summonses in the interim, the action was discontinued, and the trial court’s 10 August 2018 order – which purports to override the requirements of N.C. R .Civ. P. 4 – is ineffective. We affirm the trial court’s order dismissing this action with prejudice.

Background

Based on a prescription that was allegedly improperly filled on 7 July 2014, and improperly refilled on 19 August 2014 and 27 September 2014, the plaintiff-patient filed a motion to extend the statute of limitations on 6 July 2017, and the trial court issued summonses on 3 November 2017. After the 12 January 2018 order closing the case, plaintiff obtained alia and pluries (A&P) summonses on 31 January 2018. Plaintiff did

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not serve any of the summonses. On 7 August 2018, plaintiff moved to set aside the 12 January 2018 order. The trial court granted the motion. Plaintiff obtained five additional A&P summonses but did not serve any of the defendants for well over a year. On 5 November 2019, plaintiff filed an amended complaint adding claims for loss of consortium. The trial court issued summonses. Defendants were served with the summonses and moved to dismiss. The trial court dismissed the complaint with prejudice.

Discussion

After obtaining A&P summonses on 31 January 2018, plaintiff had until 1 May 2018 to obtain and serve new A&P summonses on defendants. He did not do so. At that point, this action was discontinued. Plaintiff was permitted to revive this action by obtaining another endorsement or A&P summons. However, the new endorsement or summonses would not relate back to the original date of the filing of the complaint. The trial court’s 10 August 2018 order purports to alter or ignore our Rules of Civil Procedure and is not effective to override the requirements of Rule 4. Trial courts are without jurisdiction to prevent a discontinuance of an action under Rule 4(e) where there is neither an endorsement of the original summons nor issuance of an A&P summons within 90 days after issuance of the last preceding summons. When plaintiff obtained a second A&P summons on 17 August 2018, he commenced an entirely new action. Plaintiff’s claims are time-barred because this action was commenced on 17 August 2018, almost a year after the three-year statute of limitations expired. The three-year statute of limitations in G.S. § 1-52(5) applies to plaintiff’s wife’s loss of consortium claim. A spouse’s claim for loss of consortium must be joined with the other spouse’s claim for personal injury and is not barred by the statute of limitations so long as the original negligence claim of the injured spouse is not so barred. When the statute of limitations expired on plaintiff’s claim, his wife’s loss of consortium claim was also barred. Affirmed. Hutchins v. CVS Pharmacy, Inc. (Lawyers Weekly No. 012-191-22, 11 pp.) (Fred Gore, J.) (Darren Jackson, J., concurring in the result only without separate opinion) Appealed from Forsyth County Superior Court (Richard Gottlieb, J.) Todd Darren Hutchins and Angela Rentenbach Hutchins, pro se; Leslie Packer and Steven Scoggan for defendants. 2022-NCCOA-310

Domestic Relations Parent & Child – Termination of Parental Rights – Conflated Findings In its order terminating the respondent-father’s parental rights, the trial court’s finding of fact 10.i begins by addressing the language of G.S. § 7B-1111(a)(6), dependency, by finding that respondent “is incapable of providing for the proper care and supervision of the juvenile . . . and there is a reasonable possibility that such incapability will continue for the foreseeable future,”

but finding 10.i does not address that ground’s essential element that “the parent lacks an appropriate alternative child care arrangement.” Finding 10.ii begins with language that echoes § 7B-1111(a)(2), stating that respondent “willfully, and not due solely to poverty, left the child in foster care or placement outside the home for more than twelve (12) months” but that he had not demonstrated to the trial court’s satisfaction “that reasonable progress under the circumstances has been made within 12 months in correcting the conditions that led to the child’s removal.” However, finding 10.ii then ascribes that lack of reasonable progress to § 7B-1111(a) (6)’s required lack of “an appropriate alternative child care arrangement.” Finally, conclusion of law 2.iii cites § 7B-1111(a)(7), abandonment. This ground was neither alleged by DSS in its termination petition nor addressed by the court’s findings of fact. We vacate the order terminating respondent’s parental rights and remand for the entry of a new order. In re J.H. (Lawyers Weekly No. 012-192-22, 13 pp.) (Valerie Zachary, J.) Appealed from Perquimans County District Court (Amber Davis, J.) William Crowe for petitioner; Jackson Moore for guardian ad litem; Daniel Gibson for respondent. 2022-NCCOA-311

Domestic Relations Parent & Child – Neglect Adjudication – Risk of Future Neglect The trial court found that the respondent-mother did not follow the recommendations outlined in her case plan, including recommendations to address mental health, parenting and substance abuse issues; could not, at the time of adjudication, provide safe and stable housing for her children; has not provided support to newborn “Keith’s” placement provider; and had not remedied or resolved the conditions that led to the removal of her other seven children from her home. The trial court also included an evaluation of past adjudications of respondent’s other children by finding (1) reunification efforts with her other children have ceased pursuant to court orders; (2) in the adjudication order regarding juvenile A.L., the court found that respondent had outstanding mental health and substance abuse issues and had not followed the services offered to her; (3) respondent has not complied with the previous recommendations of DSS; (4) respondent had her parental rights terminated as to one of her children; and (5) five of respondent’s children are in the guardianship of a non-parent. The evidence upon which the trial court based its findings is consistent with a substantial risk of future injury in respondent’s home. Therefore, the findings support a conclusion that Keith faced substantial risk of impairment in respondent’s home. We affirm the trial court’s adjudication of Keith as neglected. In re K.L.M.F.J. (Lawyers Weekly No. 012-193-22, 20 pp.) (Jeffery Carpenter, J.) Appealed from Onslow County District Court (Sarah Seaton, J.) Richard Penley for petitioner; David Perez for respondent; Stephen Schoeberle for guardian ad litem. 2022-NCCOA-313