North Carolina Lawyers Weekly August 15, 2022

I’ve experienced both sides of the sizzling real estate market over the past couple of months as a seller and now, a buyer. But I guess I should introduce myself first, right, before you hear my sob story? I’m the new executive editor of SC Biz News. What does that have to do with North Carolina Lawyers Weekly, you ask? Great question. I’m acting as interim editor of NCLW until we find a replacement for former editor David Donovan. Big shoes to fill there, right? By the way, if you know of anyone interested in the position, please send me an email. (Contact info is at the end of this column). Back to the real estate scene. We were fortunate to benefit from a very hot (but cooling) real estate market in Louisville, Ky., where we sold our house. Now we’re on the buyer’s end of a seller’s market in Greenville, S.C. What should be a fun experience has turned into a stressful one. Everyone knows how you practically sign your life away when buying (and selling) a home. Thankfully, technology has eased the hand cramps caused by holding a pen. The documents have to get signed nonetheless. Attorneys have a front-row seat to the closing process. Lucky them. Inside this edition of North

issues BAR DISCIPLINE ROUNDUP COURT CASE COMMENTARY VOLUME 34 NUMBER 16 ■ AUGUST 15, 2022 ■ $8.50Part of the network

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Valerie Johnson of Johnson & Groninger PLLC in Durham began a one-year term as the 48th president of North Carolina Advocates for Justice on July 1, according to a post on NCAJ’s website. Johnson is the first Black woman to serve as NCAJ president in the organization’s 60-year history, the post stated. She accepted the president’s gavel after the membership vote in June during the NCAJ Annual Meeting, held in Charlotte. In her speech at Annual Meeting, Johnson told members that she stood before them as a symbol of dreams and visions and the fact that they do come true, the post stated. She shared the stories of her grandparents and parents, who gained education and economic stability despite the obstacles they faced in rural North Carolina. Johnson also praised the vision of the men who established NCAJ – then the North Carolina Academy of Trial Lawyers – in“Our1962.founders’ vision came from a deep desire to make change,” she said, in part, in her acceptance speech, according to the post. “They wanted to help people and to serve them. We still share that vision, and the belief that we will be effective in See President

INSIDE: Real estate attorneys Power List See Power List Page 6 ► NCAJ 48thJohnsonnamesaspresident

GAME CHANGER See GAME Page 6 ►

Last year’s U.S. Supreme Court ruling regarding NCAA policies on compensation of students continues to have broad implications in North and South Carolina, as legislatures and law firms try to sort out a patchwork of actions. Photo via Pexler JohnsonValerie

Wake County attorney gets ve-year suspension Former Duke standout, NBA star scores a legal victory What lawyers need to know about meeting

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■ BY JASON THOMAS jthomas@scbiznews.com

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Page 2 INSIDE : REAL ESTATE ATTORNEYS POWER LISTS

■ BY JASON THOMAS jthomas@scbiznews.com

■ BY DAVID BAUGHER Correspondent W hat’s in a name? For some amateur athletes, the answer may be defined in dollars and cents, thanks to court cases and legislative efforts that are fast changing the rules of the once-staid world of university athletics.Lastyear’s U.S. Supreme Court ruling regarding NCAA policies on compensation of students may have been limited in scope but it continues to have broad implications, including on issues related to an athlete’s ability to capitalize financially on their own notoriety. “Because of the way that the decision was interpreted, it led everyone to kind of jump to this conclusion that the NCAA doesn’t have the same powers to regulate individual student athletes’ commercialization of their name image and likeness,” said William “Corky” Klett III, an intellectual property attorney with Burr & Forman in Charleston and Columbia.InNCAA v. Alston , the high court found that the association, with its billion-dollar revenue stream, is not exempt from the Sherman Act, a late-19th Century antitrust law intended to promote competition. The unanimous decision, which has prompted ongoing changes in NCAA policies, did not directly address name, image and likeness (NIL) matters. However, it has been widely seen as a shot across the bow to the National Collegiate Athletic Association’s longstanding restrictions that have previously limited amateur athletes’ opportunities to profit

Name, image and likeness challenges the legal industry

Gordon & Rees adds partners to Raleigh office Gordon Rees Scully Mansukhani welcomes Mindi L. Schulze and Kelly A. Brewer to the firm’s Ra leigh office. Schulze joins the Health Care, Professional Li ability, and Construction practice groups. Brewer joins the Health Care, Employment, Commercial Litigation, and Insurance practice groups.They both join from Yates, McLamb & Wey her,SchulzeL.L.P. concen trates her prac tice in the areas of medical malprac tice defense and HIPAA compli ance. Previously, she practiced at a series of regional law firms, where she represented various clients in cases involving medical malprac tice defense, con struction isesdefense,automobilelitigation,liabilityandpremliability.She is admitted to practice in North Carolina and Virginia state and federal courts. She earned her law degree from Campbell University School of Law and her undergradu ate degree from Appalachian State University. Brewer represents profession als, insurance companies, and their insureds in civil litigation as well as before state licensing boards. She focuses her practice on a broad range of civil litigation, including medical malpractice, professional malpractice, employment, insur ance defense, and general liability. Brewer is admitted to practice in North Carolina state and federal courts, and the U.S. Court of Ap peals for the Fourth Circuit. She earned her law degree from Uni versity of North Carolina School of Law and her undergraduate degree from University of North Carolina at Chapel Hill “We are thrilled to welcome Min di and Kelly to Gordon & Rees,” Allison Becker, managing partner of the Raleigh office, said. “Their depth of knowledge, commitment to superior client service, and trial expertise will be a tremendous as set to our clients both here in North Carolina and across the country.”

Attorney: Jim Melo Location: Wake County Bar membership: Member since 2006 Disciplinary action: Five-year suspension Background: Defendant was found guilty of withholding funds from the firms employees as required by 26 U.S.C. § 7202. Defendant committed felonious criminal acts that reflect adversely on his honesty, trustworthiness or fitness as a lawyer in other respects in violation of Rule 8.4(b), and Defendant engaged in conduct involving dishonesty, fraud, decit or misrepresentation in violation of Rule 8.4(c). The Federal Tax Liens on the firm’s delinquent IRS 941 unpaid balance assessments were totaled at $162,039.10 for the relevant time period. As a selfdescribed 100% owner of the firm, the defendant was solely resposible for the firms liabilities, including its tax obligations. The defendant was required to collect, accurately and truthfully and account for and in timely remit to the IRS the employment taxes withheld for the employees of the firm, but did not do so.

The U.S. government has taken action to bring justice to those who may have been exposed to toxic substances at Camp Lejeune dur ing a span between 1953 and 1987 – and a Charleston-based firm is reportedly the first to file a claim. Under the Camp Lejeune Jus tice Act recently signed by Presi dent Joe Biden, victims have two years from Aug. 10, 2022, when the act when into effect, to bring a claim forward, according to a news release from Beasley Allen Law Firm. Anyone who lived, worked, or served at Marine Corps Base Camp Lejeune for at least 30 days be tween 1953 and 1987 and suffered injuries or death from exposure to contaminated water can submit a claim, the release stated. During the years of operation, over one million military service personnel and their families were exposed to toxic water at Marine Corps Base Camp Lejeune and Marine Corps Air Station New River in North Carolina, accord ing to the release. The water was contaminated with volatile organic compounds, degreasers, chemicals used on heavy machinery, and more than 70 other highly toxic substances, the release stated. During this time the water was used for drinking, cooking and bathing.Poulin, Willey, and Anastopoulo Law Firm in Charleston, S.C., is believed to be the first in the na tion to file a claim for adminis trative relief immediately after Biden’s signing of the act, accord ing to a news release from the firm.

THE NEWS

President Joe Biden on Aug. 10 signed the Camp Lejeune Justice Act, which allows those exposed to contaminated water during a span of 30 days between 1953 and 1987 to bring a claim. Photo via U.S. Marines Corps

LAWYERS IN

NORTH CAROLINA LAWYERS WEEKLY I August 15, 20222 / NEWS associate attorney. He focuses his practice in civil litigation with an emphasis on admiralty and mari time law and construction law. Prior to joining Cranfill Sum ner, Derrow was an attorney with a small law firm in the Triangle area where his practice focused on advising businesses and in dividuals through business and per sonal injury liti gation. While at tending law school, he interned at the United States Bankruptcy Court for the Eastern District of North Carolina. Derrow also participated in in ternational moot court competi tions including the 27th Annual Willem C. Vis. and 18th Annual Vis East, earning multiple individual and team recognitions and awards for his oral and written advocacy. In 2019, he participated in a resi dential program in Ghana, Africa, where he studied International Human Rights Law and Compara tive Law. Prior to law school, he worked in a management position with a small business in New Bern, NorthDerrowCarolina.received a Master of Business Administration and a law degree from Campbell University. He received his bachelor’s degree from the University of North Caro lina at Wilmington.

Associate attorney joins Cranfill Sumner Cranfill Sumner LLP announced that Peyton L. Derrow has joined the firm’s Wilmington office as an Kelly BrewerA. DerrowPeyton Mindi SchulzeL.

“The signing of this bill is a mas sive victory for the Camp LeJeune Community, and we are proud to be able to join the fight in repre senting those who are going to be affected by it,” Paul Doolittle, the firm’s Chair of Class Actions & Mass Torts, said in the release. Many firms around the country are dedicated to helping the con taminated water victims of Camp Lejeune receive justice for the damage done to them and their families. “It’s been a long road toward jus tice, and now we have to spread the word about this opportunity,” Bea sley Allen attorney Trisha Green said in the release. “The U.S. gov ernment has finally acknowledged the damage it caused to those at Camp Lejeune and MCAS New River, nearly seven decades after the contamination began.” Anyone who suffered serious ill ness, miscarriage, or birth defects from the water contamination in this area is potentially eligible for disability, health care and com pensation. “We commend President Biden and lawmakers for taking action to address the catastrophic harms caused at Camp Lejeune,” Beasley Allen attorney Julia Merritt said in the release. “Our clients and oth ers dedicated their lives to serving our country … Now, it’s our duty to help them obtain justice.”

BAR DISCIPLINE ROUNDUP

Claims process set for Camp Lejeune water contamination victims ■ BY HAVILAND STEWART hstewart@nclawyersweekly.com

Operating on a 90-day delay, the North Carolina Court of Appeals on Aug. 1 began disclosing the iden tity and votes of judges who rule on petitions filed with the court, ac cording to a July 29 news release. The court will disclose in real-time whether a petition was decided by a unanimous or majority vote. A petition is a request for the court to provide relief such as com pelling a trial court to act, asking the appeals court to review a lower court’s decision when there is no right to appeal, and staying a trial court’s judgment pending appeal. Chief Judge Donna Stroud said that since the court’s founding, it has not disclosed the judges who rule on hundreds of petitions each year.“The Court has been discussing potential changes to this practice for some time, and we have been working on our internal procedures and configuring our electronic dock eting system to make these new disclosures possible,” Stroud wrote in a press release. “We’re glad to take this step to give the public ad ditional information regarding pe titions.” According to the release, the court has historically refrained from disclosing a panel member ship to prevent judge shopping. “Waiting 90 days to reveal panel membership allows the Court to maintain this policy goal, as the current panel will continue to be anonymous and the composition of future panels will remain difficult to predict,” the statement reads. The new policy states that whether a panel’s decision was unanimous or majority will be re leased on the day the order is is sued. The order will not identify the three judges who heard the petition or how they voted. Ninety days af ter the filing, the three judges who voted on the petition and a dissent ing judge, if any, will be listed on the court’s website. The release states that the court has electronically recorded judges’ votes since March 10. As petitions reach the 90-day mark, the judges and their votes will be disclosed. Staff reports

Marketing agent falls short in recouping $100M from Zion Williamson

In their brief, Williamson’s at torneys added: “All of Prime Sports’ claims seek to benefit from the void contract either directly—as is the case for Prime Sports’ claims for breach of contract, breach of the covenant of good faith and fair dealing, and un just enrichment—or indirectly—as is the case for Prime Sports’ claims seeking to recover payment in connec tion with certain marketing materials prepared under the contract.” Lawyers Weekly reached out to two attorneys for the defense, Alvin Pittman of Los Angeles and JoAnn Squillace of New York, but was un able to speak with either attorney be fore publication. However, court re cords show that defense counsel has filed a notice of appeal in the matter.

Court of Appeals to reveal judges’ petition votes

Where the defendants alleged that their comprehensive marketing plan, including numerous multi-milliondollar strategic branding and mar keting endorsements and opportuni ties, constitutes a trade secret, it does not specify what information, if any, defendants consider proprietary. And where defendants do explic itly identify trade secrets, they do not qualify as such under the statutory definition. Biggs cites the defendants’ contention that “the First Zion Wil liamson” slogan is their trade secret. According to the defendants, Ford told Williamson and his parents that he should not be marketed as “the next Lebron” or “the next anyone,” but the “First Zion Williamson.” But Biggs noted that Williamson stated in interviews dating to 2017 that he is “just trying to be the first Zion.”

NORTH CAROLINA LAWYERS WEEKLY I August 15, 2022 NEWS / 3

“This is particularly true for alle gations of fraud, which must be pled ‘with particularity’ in order to give the other party ‘sufficient informa tion to formulate a defense by putting [him] on notice of the conduct com plained of,’” she wrote. “This alone is sufficient reason to deny Defendants’ motion for summary judgment as to thisBiggsclaim.”further found that the de fendants cited no evidence support ing their assertion that Williamson actively concealed material informa tion and that a typical enforceable contract would not create a duty to disclose his relationship with CAA, so this unenforceable agreement “cer tainly did not create such a duty.”

The ‘secret’s’ been out In a brief, Williamson’s attorneys, including John Wester and Fitz Bar ringer of Robinson Bradshaw in Charlotte, wrote that uncontrovert ed evidence forecloses the plaintiffs’ claims regarding marketing materi als.“The evidence belies Prime Sports’ assertion that the marketing materi als are trade secrets,” the attorneys wrote. “Far from it. The summary judgment record shows they were as sembled hastily, shared with aban don without efforts to protect con fidentiality, and contained nothing more than publicly accessible or eas ily acquired information.” The court agreed, finding that the defendants’ allegations of trade secrets are “general and sweeping.”

“Before that, Lebron James’ mar keting agent stated publicly in 2005 that ‘our focus is to make sure [James is} the first LeBron James and not the second Michael Jordan,’” Biggs wrote. “Michael Jordan, in turn, was compared to Julius Erving as ‘The Next Dr. J.’ … [T]his concept is not a trade secret as a matter of law.”

■ BY HEATH HAMACHER Correspondent A Florida-based marketing agent looking to recoup $100 million from former Duke basketball star and current NBA player Zion William son will receive nothing after a fed eral judge on July 18 disposed of all counterclaims by the defendant agent, finding that the claims fail as a matter of law since the contract be tween the two parties is void under the North Carolina Uniform Athlete Agents Act. On Jan. 20, 2021, district court Judge Loretta Biggs found that the agreement is void under the UAAA because the agent, Gina Ford, was not registered with the state at the time she met with Williamson, and it lacked the requisite language stating that Williamson would forfeit NCAA eligibility by signing the contract. Signing with a new team Before becoming the No. 1 over all pick in the 2019 NBA draft, Wil liamson played at Duke during the 2018-19 season. According to court documents, it is disputed whether Williamson or Ford initiated the re lationship between Ford’s company, Prime Sports, but the parties began discussing a potential partnership in February 2019 and entered into an agreement in April 2019. The agree ment provided that Prime Sports would provide “identity branding and endorsement opportunities” and ex clusively oversee all marketing oppor tunities brought before Williamson. In April and May of 2019, William son and his family were contacted by a competing agency, Creative Artists Agency (CAA). Williamson emailed Ford on May 31, 2019, to terminate their agreement. He signed with CAA the same day. Williamson sued Prime Sports on June 13, 2019, alleging that the defendants fraudulently induced him to sign their agreement. Defen dants filed their answer with counter claims including breach of contract, fraud, unjust enrichment and misap propriation of trade secrets. In her Jan. 20, 2021 ruling, Biggs wrote that the agreement was void as a matter of law because William son was a student-athlete under the UAAA, and neither Prime Sports nor the agreement complied with the UAAA’s requirements for student athletic agents and agency agree ments. The defendants motioned to vacate or amend the court’s decision, but on Sept. 15, 2021, Biggs denied those motions. Fair play Here, Williamson and the de fendants both argued that they are entitled to summary judgment on the counterclaims. The defendants contend that the agreement is valid and enforceable because Williamson breached the agreement and the im plied duty of good faith and fair deal ing. However, since the agreement is void under the UAAA, Biggs wrote, the claims fail as a matter of law. Biggs also shot down claims that Williamson received financial or eco nomic benefits from the defendants for which they have not been com pensated.“Contracts in violation of the UAAA are void as against public poli cy,” Biggs wrote. “Defendants are not entitled to recover payment for the work they did, or recoup benefits they provided to Plaintiff pursuant to the Agreement under a theory of unjust enrichment.” Defendants claimed in their an swer that Williamson lied to Ford to obtain a written marketing plan that they intended to share with CAA rather than for their purported pur pose of ensuring that Ford was estab lishing “a global brand and not just … endorsement deals.” But in their briefing, Biggs notes, defendants argued that Williams falsely omit ted his discussions with CAA and his plan to end his relationship with Prime Sports, inducing the agency to provide him with the plan and other benefits. Biggs held that defendants are not allowed to “pivot at the sum mary judgment stage to new legal theory that is based on allegations that are not included in their plead ings.”

Hoops star notches legal victory

“It would be contradictory to hold that the Agreement is void as against North Carolina public policy but nev ertheless creates a duty to disclose,” Biggs wrote. “Allowing such a claim would create a backdoor for athlet ics agents to avoid the requirements of the UAAA and effectively enforce unenforceable contracts through tort law.”

In this Jan. 5, 2019, file photo, Duke’s Zion Williamson drives for a dunk against Clem son during the second half of an NCAA college basketball game, in Durham, N.C. Zion. AP Photo/Gerry Broome, File

The Previous Question (or mo tion to close debate) is often han dled wrong. Shouting “Call the Question” or “Question!” from the back of the room is not only bad form, it’s also ineffective. The mo tion to close debate is like any oth er motion. A member wanting to close debate must be recognized by the chair. The Previous Question requires a second and a two-thirds vote. Only the assembly decides when to end debate.

The chair is the servant of the assembly, not its master. Put an other way, the chair can only get away with what the assembly al lows. If the rules of the assembly are being violated, any member can raise a “Point of Order.” Once the chair rules on the Point of Or der, a member can move to Appeal from the decision of the chair. If seconded, an Appeal takes the parliamentary question away from the chair and gives it to the assembly. The assembly is the ul timate decider of all procedural is sues.

Myth #2: Any Robert’s Will Do There are lots of books with “Robert’s Rules” in the title. How ever, most of these books are ear lier editions of Robert’s or knock offs. There is always one official Robert’s that is the successor to earlier works. Each new edition brings changes to procedure. The current edition is Robert’s Rules of Order Newly Revised (12th Edi tion). If your organization’s rules specify the “latest edition” of Rob ert’s , this is your book. The newest Robert’s came out in late 2020 and can be identified by “12th Edition” on its cover and the fact that it’s 714 pages long.

• Members may remain seated while speaking or making mo tions.•Motions need no second. Discussion of a subject is per mitted while no motion is pend ing.•When a proposal is clear, a vote can be taken without a formal mo tion.•There is no limit to the number of times a member may speak to a subject or motion.

POSTMASTER: Electronic Service Requested. Send address changes to: North Carolina Lawyers Weekly, Subscription Services, P.O. Box 1051, Williamsport, PA, 17703-9940 North Carolina Lawyers Weekly is a publication of BridgeTower Media, 222 South Ninth Street, Suite 900, Minneapolis, MN 55402. "Helping lawyers practice better, more efficiently, and more profitably." Lawyers get pulled into meet ings issues all the time, whether for clients or personally. Think of the types of meetings that attor neys advise—nonprofit associa tions, shareholder meetings, gov ernmental bodies, homeowner and condominium associations, houses of worship, unions. Mishandling how decisions are made at such meetings can invalidate those decisions. Outside of work, law yers serve on and lead all types of boards, commissions, nonprofits andAscharities.aresult,learning some essen tials of parliamentary procedure has benefits. Such knowledge can enhance credibility, result in bet ter meetings, and make the differ ence between official actions and illegal ones. Sadly, parliamentary procedure is not generally taught in law schools. And what we think we know about parliamentary procedure often isn’t accurate. As Mark Twain warned, “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” Listed below are ten well-known meeting “facts” that just aren’t so.

Conclusion Attorneys, whether for profes sional or personal use, should learn at least the basics of Rob ert’s Rules and parliamentary pro cedure. The benefits of a well-run meeting go beyond legal concerns.

• Smaller boards that dislike this informality may wish to fol low more formal procedures. Even informal boards may choose to be more formal on important or con troversial matters.

Myth #1: Parliamentary Pro cedure Doesn’t Matter Courts have held that organi zations meeting to transact busi ness are subject to principles and rules of common parliamentary law, such as proper notice, discus sion, and voting. In addition, or ganizations often have governing document language that requires following a particular parliamen tary procedure book, such as Rob ert’s Rules of Order . State statutes now often prescribe procedural rules for certain entities, such as corporations, governmental bod ies, and community association (HOAs and condos). Ignoring or incorrectly applying mandatory meeting procedures can lead to embarrassment, hard feelings, and even lawsuits.

Myth #10: The Chair Rules the Meeting

NORTH CAROLINA LAWYERS WEEKLY I August 15, 20224 / COMMENTARY ■ LizPUBLISHERIrwin lirwin@bridgetowermedia.com ■ INTERIM EDITOR Jason Thomas jthomas@scbiznews.com ■ HavilandEDITORIALStewart, Reporter hstewart@nclawyersweekly.com Scott Baughman, Digital Media Manager sbaughman@mecktimes.com ■ SheilaADVERTISINGBatie-Jones, Advertising Account Executive sbatie-jones@nclawyersweekly.com ■ ACCOUNTING & ADMINISTRATIVE Michael McArthur, Business Manager mmcarthur@bridgetowermedia.com ■ DisaCIRCULATIONEhrler , Audience Development Manager dehrler@bridgetowermedia.com Circulation: 1-877-615-9536 service@bridgetowermedia.com ■ PRODUCTION & OPERATIONS Bradley Redmond, Director of Production John Reno, Production Specialist ©2022 BridgeTower Media. Material published in North Carolina Lawyers Weekly is compiled at substantial expense and is for the sole and exclusive use of purchasers and subscribers. The material may not be republished, resold, recorded, or used in any manner, in whole or in part, without the publisher’s explicit consent. Any infringement will be subject to legal Charlotte919-829-9333Establishedredress.1988•1-800-876-5297office:130NorthMcDowell Street, Unit B, Charlotte, NC 28204 (704) 377-6221 • (704) 377-4258 fax: NorthPeriodicalsMcDowellNorthStatewidebiweekly[ISSN10411747]Northservice@bridgetowermedia.comForwww.nclawyersweekly.comsubscriptionquestions1-877-615-9536CarolinaLawyersWeekly[USPS002-904]ispublishedeveryotherMondaywithGeneralCirculationfor$410.36peryearbyCarolinaLawyersWeekly,130NorthStreet,UnitB,Charlotte,NC28204postagepaidatCharlotte,Carolina28228-9998.

Myth #5: Debate and a Formal Vote Are Required Many noncontroversial matters can be resolved without debate through “general” or “unanimous” consent. Using this method, the presiding officer asks, “Is there any objection to …?” For example, “Is there any objection to ending debate?” If no one objects, you’re done. Debate is closed. If a mem ber objects, the matter is resolved with a motion and vote. Unani mous consent allows an assembly to move quickly through non-con tested issues.

Myth #9: “Lay on the Table” Kills Sticky Issues

The motion to “Lay on the Ta ble” (often shortened to “Table”) is often misused to sweep difficult issues under the rug. Robert’s pro vides that the motion is out of or der if the intent is to kill or avoid dealing with a measure. Properly used, the motion temporarily de lays a matter when some other ur gent issue has arisen, such as an emergency or an important guest who is to speak. Once the urgent matter is over, the group can re sume the tabled matter. Because the motion to Table is undebatable and only requires a majority vote, it should not be used to get rid of a matter.

• The chair is typically a full par ticipant and can debate and vote on all questions.

Myth #8: Yelling Out “Ques tion!” Stops Debate

Proper procedure can turn long, confrontational meetings into short, painless ones. Eliminating these myths will bring your meet ings more in line with proper pro cedure and result in shorter, more effective meetings. Jim Slaughter is President of Law Firm Carolinas, which has six offices in the Carolinas. In ad dition, he is a Certified Profession al Parliamentarian, Professional Registered Parliamentarian, and past President of the American College of Parliamentary Lawyers. Jim is author of four books on meeting procedure, including two published this year: Robert’s Rules of Order Fast Track: The Brief and Easy Guide to Parliamentary Pro cedure for the Modern Meeting and “Notes and Comments on Robert’s Rules, Fifth Edition. Many charts and articles on meeting procedure can be found at www.jimslaugh ter.com

Myth #3: Rules Are the Same for All Meetings Rules aren’t one-size-fits all. Problems are common when large meetings behave too informally or small meetings behave too formal ly. Rules should be like clothes— they should fit the organization they are meant to serve. Most parliamentary manuals provide that board meetings and membership meetings are conduct ed differently. Large meetings must be fairly formal. However, formal ity can hinder business in smaller bodies. As a result, Robert’s recom mends less formal rules for com mittees and smaller boards (where there are not more than about a dozen members present), such as:

Myth #4: Seconds Always Mat ter In a larger or more formal body, a second to a motion implies that at least two members want to discuss the motion. If there is no second, there should be no further action on the proposal, so seconds have their place. However, after any debate on an issue, the lack of a second is irrelevant. For less for mal smaller bodies or on motions coming from a committee, seconds aren’t even required.

Myth #6: The Maker of a Mo tion Gets to Speak First and Last The maker of a motion has the right to speak first to a proposal. After speaking, the maker has no more rights to speak than other members. In fact, the maker can not speak a second time unless ev eryone else who wishes to speak to the issue has had a chance.

Myth #7: “Old Business” “Old Business” is not a par liamentary term and suggests a revisiting of any old thing ever discussed. The correct term “Un finished Business” makes clear the term refers to specific items carried over from the previous meeting. A presiding officer never needs to ask, “Is there any Un finished Business?” but simply states the question on the first item (“There is one item of Un finished Business . . . .”). Annual meetings generally have no unfin ished business.

Here are ten things lawyers should know (but don’t) about parliamentary procedure

AG in legal bind amid probe over 2020 TV ad

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Superior Court Mediation Training Superior Court Mediation Training AUGUST 8 - 12, 2022 CHARLOTTE, NC OCTOBER 24 - 28, 2022 RALEIGH, NC Construction personnel work on the Carolina Panthers’ practice facility Tuesday, Aug. 24, 2021, in Rock Hill, S.C. Panthers owner David Tepper’s real estate company has promised to pay more $82 million to creditors over an abandoned practice facil ity project in Rock Hill under a new plan proposed on Aug. 11. AP Photo/Chris Carlson, File

RALEIGH, N.C. (AP) — The cam paign committee for North Carolina Attorney General Josh Stein, facing trouble for a TV ad aired against a rival in 2020, plans to ask a federal court to block enforcement of a state law making it illegal to knowingly circulate false reports to damage a candidate’s election chances. The notice of appeal to the 4th U.S. Circuit Court of Appeals was filed last week by the campaign’s attor ney. It comes a day after a trial judge refused to bar Wake County District Attorney Lorrin Freeman from po tentially using the law to prosecute anyone over the disputed commer cial. Lawyers for Stein have argued the law is overly broad and chills po litical speech. By challenging the state law, Stein may put himself in a bind between his public duties and his political future. Stein’s campaign committee argues that the statute is unconstitutional, noting one of the attorney general’s chief jobs is to defend North Carolina laws in court. Stein, a Democrat, is a potential 2024 governor’s contender. The law, which dates to at least 1931, makes it illegal to knowingly circulate false “derogatory” reports about candidates to harm them at the ballot box. Freeman’s investiga tion stems from a September 2020 State Board of Elections complaint about the ad, which was filed against Stein’s committee by his then-chal lenger, Republican Jim O’Neill. U.S. District Judge Catherine Ea gles, in canceling her July 25 emer gency order that had stopped the law’s enforcement, wrote Tuesday that the statute was permissible un der the Constitution.

The ad talks about untested rape kits held by local law enforcement agencies, and a woman appearing in the commercial asserts that O’Neill “left 1,500 rape kits sitting on a shelf” in Forsyth County, where he’s been district attorney since 2009. Stein’s committee and two other plaintiffs sued last month to attempt to the have the law struck down as Freeman’s office prepared to take its investigation of the commercial to a state grand jury, according to legal briefs. No one has been charged in the case, and it’s unclear who specifi cally would have been a possible tar get.O’Neill has said the 2020 ad was false because police agencies, not prosecutors, are responsible for test ing rape kits. Stein, who defeated O’Neill by fewer than 14,000 votes in November 2020, has defended the ad’s accuracy. He said it countered false accusations by O’Neill that he had failed to act on over 15,000 un tested rape kits since becoming attor ney general in 2017. “The voters deserved to be in formed about the differences between how my opponent and I handled this critical public safety issue,” Stein said in a statement Wednesday. “I am confident that this statute will ul timately be struck down and we will move forward.” After a state election board inves tigation, the matter was forwarded to Freeman’s office, after which the State Bureau of Investigation inter viewed Stein, members of his cam paign staff and the woman in the ad, who also worked in the attorney gen eral’s office, according to briefs. Separately last week, the state Democratic Party wrote Freeman demanding that she investigate comments O’Neill made in the 2020 campaign’s final months that it al leges were also false and derogatory. Party attorney John Wallace pointed to statements O’Neill made to the media, one that he said alleged Stein had “done nothing about the rape kits” and another that alleged Stein had sued then-President Donald Trump over funding for a border wall withFreeman,Mexico. herself a Democrat, “should apply equal protection under the law and open an investigation,” party spokesperson Kate Frauen felder said. In an emailed statement Wednes day evening, Freeman said the Dem ocratic Party was requesting “unique treatment” but instead needed to fol low the normal procedure in a cam paign case by filing a complaint with the State Board of Elections. Freeman recused herself from in vestigating Stein’s ad, leaving it with a senior assistant DA in her office. She said last week her recusal would remain for any other 2020 attorney general campaign case. O’Neill didn’t have a comment Wednesday. A state law says a public official convicted of the misdemeanor at is sue in the lawsuit must be removed from office by a judge. This directive appears to conflict with a provision in the North Carolina Constitution in which someone like the attorney gen eral can only be thrown out of office through impeachment and conviction by the General Assembly.

NORTH CAROLINA LAWYERS WEEKLY I August 15, 2022 NEWS / 5

Panthers propose to pay $82M over failed practice facility

lina Panthers owner David Tepper’s real estate company has promised to pay more $82 million to creditors over an abandoned practice facility project in Rock Hill under a new plan proposed Thursday. The plan would require approval from courts and creditors. The de velopment of the Panthers’ state-ofthe-art $800 million practice facil ity — which would have served as the NFL team’s headquarters — fell apart after highly-publicized dis putes between Tepper and the City of Rock Hill and York County. GT Real Estate Holdings, a Dela ware limited liability company, an nounced it has filed a comprehen sive plan of reorganization in the U.S. Bankruptcy Court for the Dis trict of UnderDelaware.theterms of the plan, GTRE would resolve claims by pay ing $60.5 million in cash funded into a settlement trust for the ben efit of contractors, subcontractors and general unsecured creditors, $21.1 million to York County and $20 million or more to the City of RockEarlier,Hill. DT Sports Holding, LLC, a Tepper entity, previously funded $20 million in debtor-in-possession financing. York County announced in June it was suing Tepper for at least $21 million. Tepper invested more than $175 million into the half-built practice facility, which is located about 25 miles south of the team’s current downtown stadium and headquar ters in Charlotte, North Carolina, before construction shut down. “This plan reflects GTRE’s prom ise to expeditiously resolve all claims and make payments to its creditors, including to York County and the City of Rock Hill,” accord ing to a statement released by GT Real Estate Holdings. “GTRE now has a clear path to emerge from bankruptcy made possible by sub stantial commitments from DT Sports Holding, which has made available to GTRE more than $82 million in cash in an effort to bring this process to an orderly and equi table conclusion. “GTRE believes that the plan is in the best interests of its creditors and anticipates that a hearing to consider

NORTH CAROLINA LAWYERS WEEKLY I August 15, 20226 / NEWS off their fame. Of particular import was a con curring opinion by Justice Brett Kavanaugh which indicated that, although Alston only dealt with a limited set of concerns, future liti gation is likely to widen the rami fications of its decision noting that the NCAA’s “current compensation regime raises serious questions.” “Businesses like the NCAA cannot avoid the consequences of price-fixing labor by Kavanaughofintoprice-fixedincorporatinglaborthedefinitiontheproduct,”wrote.Heclosedpoint

GAME / Name, image and likeness resembles the ‘wild, wild West’

Continued from 1 ► meeting our goals.”

Johnson succeeds outgoing Presi dent John McCabe of The Law Offic es of John McCabe P.A., in Cary, ac cording to the post. Andy Banzhoff of Devereux Banzhoff, PLLC Asheville was chosen President-elect. Johnson has been a trial lawyer since she graduated from the Uni versity of North Carolina School of Law with honors in 1994, the post stated. Her firm, Johnson & Gron inger PLLC, with offices in Durham and Charlotte, practices statewide in the areas of workers’ compensa tion law, personal injury and bicycle crashShelaw.teaches trial advocacy at the University of North Carolina School of Law and has taught workers’ com pensation law at the Wake Forest University School of Law, according to the post. She is an editor of “North Carolina Workers’ Compensation Law: A Practical Guide to Success at Every Stage of a Claim,” published by JohnsonLexisNexis.isa member of the Na tional Academy of Social Insurance and a fellow of the College of Work ers’ Compensation Lawyers. She is the 2021 recipient of the Charles L. Becton Award for teaching from the North Carolina Advocates for Justice. Johnson also serves as a director on the board of Lawyers Mutual In surance Company.

On the other side of the state line in North Carolina, Bobby Rob inson of Nexsen Pruet in Charlotte, agreed saying that there were al ready NIL cases bubbling up in the courts and “the writing was on the wall” for the NCAA. “They knew without a shadow of a doubt that they would lose those cases and that it was time to change their policy,” said Robin son who has regularly worked with student athletes on such matters. “I always emphasize ‘policy’ be cause they weren’t operating un der some other legal standard oth er than that they are a non-profit collegiate association and that was an internal policy that they cre ated nearly 100 years ago.”

PRESIDENT / NCAJ names Johnson as 48th president

“Right now, it is the wild, wild West,” Robinson said. “It is a quilt ed approach only because there is no federal standard as of yet.” Until one arrives, the issue of how student athletes can monetize their own images may keep fill ing legislative agendas and court dockets.“Really, everyone is trying to figure out what to do with this,” Klett said.

POWER LIST / Real estate attorneys making an impact Continued from 1 ► Continued from 1 ► Corky RobinsonBobbyKlett

The National Law Review re cently noted legislative efforts to create or update NIL legislation in Florida, Kentucky and Virginia. “You’ve got universities and state legislatures trying to scram ble to keep up with what it means,” Klett said. “There is no national name, image and likeness statute like you have in other areas of in tellectual property law.” So far, North Carolina’s legisla ture has not passed any new mea sures on the matter. Robinson said that schools in the state currently rely on a combination of guidance from the NCAA and an executive order by Gov. Roy Cooper. “Our firm is closely watching the legislative process with re gards to whether or not it is going to be introduced during a certain legislative session,” he noted. “We do know that there have been some senators here who have advocated for this to be brought to the senate floor. We’re just waiting on that to happen.”Hefeels that, over time, a gen eral consensus may form in terms of best practices that will guide athletes, schools, attorneys and fi nancial providers in making sure that the right safeguards are there to protect athletes. He also thinks that it may open a new world to some once-impoverished students looking to channel their abilities on the field into entrepreneurial ventures.“There are top-tier athletes that can barely feed themselves in many instances,” he said. “This now allows them an opportunity to create some financial indepen dence for themselves while also still being able to perform at the highest levels.” In any event, a national ap proach may ultimately emerge to solve the issue and end the stateby-state and case-by-case situation that currently rules the day.

Universities and state legislatures are scrambling to keep up with the name, image and likeness issue, as there is no NIL statute like in other areas of intellectual prop erty law, according to attorney Corky Klett. Photo via Pexler Carolina Lawyers Weekly you’ll find our real estate attorneys Power List. These are the folks doing notable things in the real estate realm. And it’s not just limited to resi dential. Commercial real estate presents its own set of challenges, and opportunities. The Covid-19 pandemic made sure of that. The ups and downs of a volatile indus try, especially with office space and the evolving post-pandemic workplace, take a attorney’s mind to Thankfully,track. North Carolina is full of talented attorneys in both real estate sectors. You can find some of them inside these pages. Jason Thomas can be reached via email at jthomas@scbiznews. com.

edly with “The NCAA is not above the“Justicelaw.” Kava naugh’s concurring opinion gave every one the impression that the business model of the NCAA was probably not valid,” said Klett, “and the whole con cept of amateurism and not allowing athletes to be paid or commercialized or anything like that was probably not a good busi ness model.”

Still, the NIL issue had been on legislative radar screens even be fore the ruling was handed down. That includes in South Carolina where a 2021 law aimed to give students leeway, within certain parameters, to commercialize their identity. However, such efforts, well-in tentioned as they might be, have yielded uneven results and some times ended up sparking their own set of concerns. For instance, South Carolina’s law, passed just last year, included a provision that kept student athletes from using the logos of their team. “That didn’t really quite seem work or make sense because that was the very reason that people would pay money was the associa tion between the university and the athlete,” noted Klett. The law was suspended earlier this year. NIL legislation in Ala bama, also passed in 2021, was scrapped altogether. “As we all know, particularly with college football, you don’t want to put your school or your state at a competitive recruiting disadvantage,” Klett said. “By be ing one of the states that tried to get out in front with a state stat ute, it was actually detrimental to the process. The states that didn’t do that, the universities were able to make up their own rules.”

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Criminal Practice Search & Seizure – Expectation of Privacy – Rental Car – Unauthorized Driver

Although a rental car was found outside defendant’s motel room, he was not an authorized driver of the car and he did not put forward any evidence that would support defense counsel’s claim that the person who had rented the car let him use the car or that he lawfully possessed the rent al car by other means. Defendant has failed to carry his burden that he had a legitimate expectation of privacy in the rental car. We affirm the denial of defendant’s motion to suppress the gun (bearing the convicted-felon defendant’s DNA) found in the rental car. United States v. Daniels (Law yers Weekly No. 001-095-22, 6 pp.) (Julius Richardson, J.) No. 19-4812. Appealed from USDC at Charlotte, N.C. (Robert Conrad, J.) Joshua Car penter, Anthony Martinez and Ann Hester for appellant; Anthony Joseph Enright and William Stetzer for ap pellee. 4th Cir.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities. Three consecutive years of high bar passage rate for first-time takers: 95% (2018) 92% ( July-Oct. 2020) Officers took defendant into cus tody for driving without a license and failure to maintain lane con trol. A drug-sniffing dog confirmed the presence of drug residue on the cash.During the search of defendant’s person, five micro-SD cards fell out of his shoe. Defendant scooped up two of the cards and shoved them into his mouth. Based on this information, of ficers sought a search warrant for defendant’s smartphone and the three operable SD cards. The resulting warrant authorized a search for records of drug traffick ing. When officers saw what they believed to be child pornography, they sought subsequent warrants for the SD cards and the smart phone. Child pornography was found on the cards and the phone. Discussion We recognize that a drug dog’s alert on cash may not always mean it is drug money. Likewise, defen dant’s sweating and nervous be havior when interacting with offi cers does not necessarily establish probable cause. But the totality of these cir cumstances is more than enough to establish a fair probability that defendant was engaged in drug trafficking. So the officers had probable cause to search defen dant’s relevant effects for evidence, so long as they bore some potential connection to the suspected crime. When an arrestee attempts to destroy evidence, he is most like ly trying to prevent that evidence from being seen by police. When police have probable cause to be lieve the arrestee is engaged in drug trafficking, the most reason able inference is that the item re lates to that Defendant’scrime.attempt to destroy the SD cards provided a substan tial factual basis that allowed a magistrate to reasonably infer that the SD cards contained evi dence that defendant was traffick ingThedrugs.evidence in the warrant application established probable cause that defendant was running drug money when arrested. And it shows that he was using his cell phone for navigation at the time. That is enough to find the magis trate had ample reason to believe defendant’s phone would contain evidence of a drug-trafficking con spiracy. Moreover, defendant’s quick exit from the phone’s GPS app indicated that there was evi dence of a drug-trafficking crime – i.e., the destination of the cash – on his phone. The warrants were properly is sued. Affirmed. United States v. Orozco (Law yers Weekly No. 001-094-22, 15 pp.) (Julius Richardson, J.) No. 214473. Appealed from USDC at Ra leigh, N.C. (James Dever, J.) Rich ard Croutharmel for appellant; Natasha Katherine Harnwell-Da vis, Keneth Polite, Lisa Miller, Mi chael Easley, David Bragdon and Jacob Pugh for appellee. 4th Cir.

Criminal Practice Search & Seizure – Suspected Drug Money – Electronic Media – Child Pornography Where the defendant-driver (1) was stopped for weaving, (2) quickly exited a smartphone nav igation application, (3) was ar rested on suspicion of drug smug gling, and (4) attempted to eat SD cards found in his shoe, affidavits reciting these facts were sufficient to support the issuance of search warrants for defendant’s uneaten SD cards and his smartphone, re gardless of the fact that what the searches revealed was not drugsmuggling evidence but child por nography. We affirm the district court’s de nial of defendant’s motion to sup press. Background After defendant’s car passed his position, a law enforcement officer ran the plate and learned that the car’s registered owner had a sus pended license. Defendant was stopped after swerving across the centerlineDefendanttwice.had a smartphone in his lap displaying a GPS naviga tion map. When asked where he was headed, defendant abruptly exited the GPS app but could not say where he was going. An officer noted that defendant was “sweating profusely”, despite the car’s blasting A/C, and was shaking nervously. The officer also noted that the dashboard was not flush and bore toolmarks. Officers called a K-9 unit, defendant con sented to a search, and the K-9 alerted to the presence of drug residue near the toolmarks on the dashboard. Officers opened the dashboard’s secret compartment and found gro cery bags filled with $111,252 in cash. Defendant said he had been paid to drive the car and that the money was not his. A call to the DEA revealed that defendant’s cell phone number was linked to an on going investigation. 92% (2019) INSPIRE THE PROFESSION. INNOVATE THE PRACTICE. IMPACT THE WORLD. � LawCareer@liberty.edu � (434) 592-6068 � /LibertyUniversityLawLiberty.edu/Law

Opinions See Page 10 ►

NORTH CAROLINA LAWYERS WEEKLY I August 15, 20228 / OPINION DIGESTS

Where the record reveals that the sentencing court failed to consider evidence of uncontroverted diag noses that petitioner suffered from the mental illnesses of rumination and anti-social personality disorder and that he suffered a childhood of severe abuse and neglect – focusing instead only on the controverted di agnosis of schizophrenia – the postconviction relief court unreasonably determined that the sentencing court considered all the mitigating evidence before sentencing petition er to Wedeath.reverse the district court’s denial of the petition and remand with instructions that the district court issue the writ of habeas corpus unless the State of South Carolina grants petitioner a new sentencing hearing within a reasonable time. Background Petitioner was severely abused and neglected throughout his child hood. He also has a lengthy history of mental health issues. In the summer of 2002, petition er committed heinous murders. He pleaded guilty and was sentenced to death. He was denied post-convic tion relief (PCR) in state court, and

Criminal Practice Habeas Corpus – Constitutional –Death Penalty – Mitigating Circum stances

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Continued from 8 ► See Page 11 ►

DevelopmentMunicipalPermit

The defendant-applicant had not completed its application under Ashe County’s Polluting Industries Development Ordinance (PID Ordi nance) before Ashe County imposed a moratorium on issuing permits thereunder. The application was completed during the moratorium, but, after the county lifted the mora torium, it was replaced with a more onerous ordinance. The applicant was not entitled to a PID permit to build its asphalt plant. We reverse the superior court’s order, which required issuance of the permit. Facts

Dissent (Rushing, J.) After petitioner re ceived the death penalty and lost his direct appeal in state court, he sought relief in South Carolina’s PCR court. That court considered and rejected petitioner’s arguments against his death sentence. He tried again in federal court, arguing that the sentencing judge failed to consider all the evidence he offered in mitigation and that the judge applied the wrong standard for analyzing his mental-health evi dence. The district court denied re lief, concluding that petitioner failed to show that the PCR court’s ruling rejecting these arguments was con trary to, or an unreasonable appli cation of, clearly established federal law or based on an unreasonable determination of the facts. Because fair-minded jurists could agree with the PCR court’s decision, the major ity errs in overriding the state court to grant relief. Much of the majority’s supposed proof that the sentencing judge did not consider certain evidence that petitioner presented instead dem onstrates that the judge simply did not find that evidence mitigating in petitioner’s case. Moreover, rumina tion is referred to as an eating dis order. Having identified neither an ob jectively unreasonable factual de termination by the PCR court nor a “materially indistinguishable” Su preme Court decision that the PCR court contradicted, the majority errs in granting relief. Allen v. Stephan (Lawyers Weekly No. 001-096-22, 76 pp.) (Roger Greg ory, C.J.) (Allison Jones Rushing, J., dissenting) No. 20-6. Aren Kevork Adjoian, Joshua Snow Kendrick and Charles Grose for appellant; Melody Jane Brown, Alan Wilson and Don ald Zelenka for appellee. 4th Cir.

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Discussion When placed against the back drop of the record and considered within the bounds of clearly estab lished federal law, the PCR court’s conclusion that the sentencing judge “properly considered” petitioner’s mitigating evidence was in error. First, in his “Post-Sentencing Af fidavit,” the sentencing judge states outright: “[Petitioner] was NOT con clusively diagnosed to be mentally ill.” Yet the record plainly and un equivocally belies this conclusion. The government’s own experts con clusively diagnosed defendant with rumination disorder. Around the second grade, peti tioner began ruminating. About half an hour after eating, he would push his food back up by contracting his stomach muscles, fill his mouth un til his cheeks puffed out, re-chew the food, swallow it, and then bring it up again and again. He smelled of vomit all the time. Petitioner states he continues to do this daily; it’s a compulsion.Dr.Pam Crawford, one of the defense’s mental health experts, clearly said “[Petitioner] is mentally ill now” and “[he] was mentally ill” in the summer of 2002. Defense wit nesses Dr. George Corvin and Dr. Donna Schwartz-Watts were just as clear when they said the same. And no government rebuttal expert said different.Second, in the Post-Sentencing Report, the sentencing judge con cluded that there was “[no] evidence of mitigating circumstances found supported by the evidence.” But there was such evidence. Petitioner suffered from rumination and antisocial personality disorders and en dured persistent childhood abuse. Further, per the Post-Sentencing Report, “a psychiatric evaluation [was] performed”; Dr. Crawford was the evaluator; and she found “character or behavior disorders.” Yet, when asked to elaborate, the sentencing judge memorialized a single disorder: schizophrenia. The Post-Sentencing Report is silent as to petitioner’s rumination disorder, an Axis I mental illness with which Dr. Crawford diagnosed petitioner. We find clear and convincing evidence that the sentencing judge did not consider all of petitioner’s mitigating evidence, and therefore hold that the PCR court’s determi nation that the sentencing judge “consider[ed] the mitigation evi dence as presented” is an unreason able determination of the facts be cause it is based on a factual finding that is plainly contradicted by the record. We thus do not defer to the state court’s ultimate ruling on pe titioner’s Eighth Amendment claim, predicated as it is on an unreason able factual determination, and in stead review that claim de novo. Failing to consider some of a de fendant’s mitigating evidence, as the sentencing court did here, vio lates clearly established federal law. And it follows that the PCR court’s conclusion that the sentencing judge “properly” considered petitioner’s mitigating evidence is contrary to clearly established federal law. In the end, the sentencer’s failure to consider all of the mitigating evi dence risks erroneous imposition of the death sentence, so it is our duty to remand this case for resentenc ing. Reversed and remanded.

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the district court rejected his peti tion for a writ of habeas corpus.

Even if one found the term “com mercial building” ambiguous with respect to the barn, we must con strue this ambiguity in favor of AM. The planning board got it right. Finally, the planning board found that AM did not make any material misrepresentations to the county in its application. There is no basis for this court to reverse the board’s de termination on this issue.

Plaintiff’s permanent work re strictions included no lifting over 20 pounds with her right arm and no repetitive forceful gripping or grasping with her right hand. The Carcass Trucker position offered to plaintiff by the employer required 12 hours of driving while gripping the steering wheel, occasionally lift ing 25 pounds and pushing or pull ing 30 pounds total. Three doctors testified that the Carcass Trucker position did not comply with plain tiff’s permanent work restrictions. We cannot reweigh the evidence. Cromartie v. Goodyear Tire & Rubber Co. (Lawyers Weekly No. 011-189-22, 16 pp.) (Lucy Inman, J.) Appealed from the Industrial Com mission. Kathleen Sumner, David Stewart and Jay Gervasi for plain tiff; Angela Farag Craddock for de fendants. 2022-NCCOA-519

Domestic Relations Parent & Child – Support – Modifica tion Order – Prior Appeal

NORTH CAROLINA LAWYERS WEEKLY I August 15, 2022 OPINION DIGESTS / 11

Continued

Medical Restrictions – Proffered Job In this case, (1) the defendantemployer has acknowledged that plaintiff suffered a compensable in jury and paid her temporary total disability benefits; (2) throughout every level of litigation, defendants have disputed whether plaintiff re mained totally disabled; (3) the crit ical issue of disability was before the full Industrial Commission; but (4) the Commission made no findings or conclusion about whether plaintiff remained disabled. Since the ques tion of plaintiff’s disability affects her right to compensation, the Com mission must make express findings about plaintiff’s disability status. We remand to the Commission for it to enter explicit findings on the existence and extent of plain tiff’s disability. We affirm the Com mission’s determination that the “Carcass Trucker” position offered to plaintiff was not suitable employ ment for her.

After the issuance of a temporary child support order and a trial on the question of permanent child sup port, while the trial court had the question of permanent child sup port under advisement, one of the parties’ children turned 18 and the plaintiff-Father moved to modify the temporary child support order. After the entry of a permanent sup port order (which did not take into account the child reaching the age of majority), an appeal, and remand of the permanent support order –during which time Father made all required payments – Father clari fied that his motion to modify ap plied to the permanent order. Since Father stayed current on his obliga tions, G.S. § 50-13.10(a) allowed the trial court to retroactively reduce Father’s child support obligation (due to the child turning 18) and to direct the defendant-Mother to pay back some of the support she had received from Father after the filing of his original motion to modify the temporary order. We affirm the order requiring Mother to repay Father $40,859.28. However, we vacate and remand as to the amount of Father’s ongoing child support obligation. The portion of § 50-13.10(a) –which prohibits a trial court from retroactively modifying any child support obligation that arose prior to the filing of a motion to modify – does not apply. This statute only applies to “past due” obligations, and Father was not “past due” on any child support obligation. The plain language of the stat ute provides that only “past due” obligations which accrued after the date that the parent seeking modi fication files and gives notice of his motion may be modified. The stat ute, though, further provides that a “child support obligation” (without any reference to “past due” obliga tions) may, otherwise, be modified as “provided by law”, which includes our common law. There is nothing in the record be fore us which suggests that, at the time the trial court’s 2021 modifi cation order was entered, Father was “past due” in any payment he was required to make under prior orders. Accordingly, even if Fa ther’s May 2018 motion to modify the temporary order was mooted by our affirmance of the 2018 perma nent order, the trial court was not prohibited under § 50-13.10(a) from modifying Father’s child support obligation accruing from the time that one of the children was eman cipated. And the 2021 modification order otherwise supports the retroactive change under our case law: Mother was aware that her child had turned 18 and had graduated high school; Mother was aware in May 2018 that Father was seeking a reduction in his child support obligation based on this change of circumstance; and Mother would not be prejudiced by the retroactive change. However, in calculating Father’s prospective obligation, the trial court found that Mother earned $12,237 per month as a real es tate broker. The trial court may have failed to take into account that some of Mother’s gross com missions were shared with other brokers and/or the brokerage com pany Mother worked under. Also, the amount of legitimate business expenses Mother incurred to earn those commissions is unclear. We vacate and remand for further find ings as to Mother’s income. Affirmed in part; vacated in part and remanded. Berens v. Berens (Lawyers Week ly No. 011-188-22, 16 pp.) (Chris Dil lon, J.) Appealed from Mecklenburg County District Court (Sean Smith, J.) Gena Graham Morris and Pres ton Odom for plaintiff; Troy Shelton and Michelle Connell for defendant. 2022-NCCOA-518

The doctor who reviewed the medical records of plaintiff’s dece dent is board certified in internal medicine. Neither the trial court nor defendants cited specific au thority, of which plaintiff knew or should have known, that such a doctor is not practicing in the same or similar specialty to that of an internist or a general practitioner providing and supervising the care of a pneumonia patient. We reverse the trial court’s dis missal of plaintiff’s complaint. Plaintiff’s decedent – who died of an apparently unrelated drug over dose – suffered from pneumonia while he was in jail. He was under the care of defendants. Despite his symptoms, he was prescribed only an inhaler, over-the-counter pain medicine and antibiotics. Eventu ally, he developed septic shock and lost a Thelung.trial court dismissed plain tiff’s medical malpractice com plaint, finding she had failed to comply with N.C. R. Civ. P. 9(j)’s requirement that the relevant from

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DisabilityCompensationWorkers’–HandInjury–

MedicalTort/NegligenceMalpractice–Rule9(j) –Pneumonia Treatment – Prisons & Jails

Ashe County v. Ashe County Plan ning Board (Lawyers Weekly No. 011-187-22, 33 pp.) (Darren Jack son, J.) (Chris Dillon, J., dissent ing) Appealed from Ashe County Superior Court (Susan Bray, J.) On remand from the N.C. Supreme Court. Amy O’Neal and John Cooke for petitioner; Tyler Moffatt for re spondent-appellee; Bryan Brice, Da vid Sloan and Natalia Isenberg for amici curiae. 2022-NCCOA-516

In 2015, before a permit could be issued under Ashe County’s PID Or dinance, one requirement was that an applicant have obtained all nec essary federal and state permits. Defendant Appalachian Materials, LLC (AM), submitted an application to build an asphalt plant before it obtained a state air quality permit. Ashe County then imposed a moratorium on PID permits. While the moratorium was in place, AM obtained and submitted an air qual ity permit. However, after the county lifted the moratorium, the county re pealed its PID Ordinance and re placed it with the High Impact Land Use Ordinance, which created new and more onerous requirements. The county planning director de nied AM’s PID permit application because (1) the application was not complete before the moratorium went into effect, (2) AM’s land was within 1,000 feet of two commercial buildings and (3) the incomplete ap plication contained material misrep resentations. As to the third reason, AM’s air-quality permit application represented that the annual out put of the asphalt plant would be 300,000 per year or less, whereas the incomplete PID Ordinance ap plication represented that the an nual output would be 150,000 tons per year or less. The defendant-planning board reversed the planning director’s de cision and ordered that a PID Ordi nance permit be issued. The superi or court upheld the planning board’s decision. Analysis Our permit choice statutes – G.S. §§ 143-755, 153A-320.1 and 160A360.1 when AM submitted its in complete application and §§ 143-755 and 160D-108 today – provide, in general, that if a land use regulation changes between the time a permit application is “submitted” and the time a permit decision is made, then the applicant may choose which ver sion of the regulation applies. AM’s PID Ordinance applica tion was not “submitted” within the meaning of the permit choice statutes until it was complete, i.e., when AM forwarded its air qual ity permit to the county during the moratorium. Whether the planning director was justified in denying the application that was submitted within the meaning of the permit choice statutes by AM thus depends on whether the moratorium barred the planning director from issuing theUnderpermit.either version of the permit choice statutes, the permit choice rule applies only to completed appli cations. Therefore, AM’s incomplete application was not exempt from the moratorium because AM never ob tained a prior valid administrative or quasi-judicial permit or approval of its G.S.application.§153A-340(h) authorized Ashe County, through its Board of Commissioners, to “adopt tempo rary moratoria on any county devel opment approval required by law” with exceptions not applicable here. In the absence of any exemption pro vided by Ashe County’s moratorium, the planning director lacked the au thority to approve AM’s application. Furthermore, denial of AM’s ap plication was required because the proposed plant would have violated the PID Ordinance by being located within 1,000 feet of not one, but two commercial buildings: a quarry and a barn.Wedo not reach the issue of AM’s apparent misrepresentation as to the proposed plant’s expected level of output.Thesuperior court erred by re quiring the county to issue AM a PID Ordinance permit. Reversed. Dissent (Dillon, J.) There is nothing in the PID Ordinance to suggest that a developer have all required state and federal permits in hand before it could submit its application for the county permit. The ordinance merely said that any required state and federal permits had to be in hand before the county would issue the permit: “A uniform permit fee of $500.00 shall be paid at the time of the application for the permit. No permit from the planning depart ment shall be issued until the ap propriate Federal and State permits have been issued.” AM was entitled to the protection of our permit choice laws. The ordinance did not define “commercial building,” but the near by quarry and barn would not qual ify as such. First, the “building” at the quarry was a movable shed. Even if it quali fied as a “building,” it was owned by AM’s parent, and the planning board found that the parent would have moved the shed if it were deemed a “commercial building.” As for the barn, it should be not ed that the stated purpose of the ordinance is to protect the “health, safety and general welfare” of those in “established residential and com mercial areas in Ashe County.” No one works in the barn, no custom ers visit the barn, nothing is stored there that is sold, and the barn is not located in an established com mercial area. Thus, the barn does not appear to be a “commercial building.”

Dr. Hall devoted a majority of his professional time during the year immediately preceding the date of the decedent’s care to the active clinical practice of a similar specialty which includes within its specialty the care of pneumonia patients and has prior experience treating similar patients.

The trial court’s conclusion that “Plaintiff could not have reason ably expected Dr. Hall to qualify as an expert witness against [de fendants Eastern Carolina Medical Services PLLC, Dr. Leonhardt, and Dr. Cervi] pursuant to Rule 702(b)(d) based on what she knew or should have known at the time of filing of the Complaint, and there fore, failed to substantively comply with Rule 9(j)” is not supported by the findings or the evidence. The trial court thus erred by dismiss ing plaintiff’s complaint against defendants ECMS, Dr. Leonhardt, and Dr. Cervi for failure to sub stantively comply with Rule 9(j)(1). As to the defendant-nurses, the focus of the trial court’s relevant findings as to Dr. Hall’s experi ence supervising nursing staff and nurse practitioners is on the fact Dr. Hall did not practice in a family practice, general primary practice, or specifically in a detention cen ter. The inference—again drawn against plaintiff—is that these settings are so dissimilar from Dr. Hall’s clinical and hospital prac tices, particularly as it relates to the course of treatment for pneu monia patients, that it would be unreasonable for plaintiff to expect Dr. Hall to qualify as an expert. Accepting these practices may not be the same, there is nothing in the record to support the inference they are not similar for purposes of meeting the requirements of Rule 9(j). Defendants point to no author ity to support their position that under the circumstances present in this case it would be unreasonable to expect Dr. Hall to qualify as an expert here. The question under Rule 702(d) is, by reason of his clinical practice, whether Dr. Hall has knowledge of the applicable standard of care for nursing staff and nurse practi tioners. The evidence of record at this stage is that in his practice Dr. Hall regularly supervises nurs ing staff and works in conjunction with nurse practitioners to provide treatment for pulmonary condi tions (of which pneumonia is one). Moreover, it is evident from his limited testimony that Dr. Hall, again based on his own clinical experience, is aware of different types of nursing providers and the roles they play in patient care which he oversees. From this, the proper inference to be drawn is that it is reasonable to expect Dr. Hall to qualify as an expert based on his clinical experience in a simi lar specialty which also includes within that specialty the treatment of pneumonia patients. The trial court erred by dismiss ing plaintiff’s complaint. Gray v. Eastern Carolina Medi cal Services, PLLC (Lawyers Weekly No. 011-190-22, 23 pp.) (Allegra Collins, J.) Appealed from Pitt County Superior Court (Jeffery Foster, J.) Gregory Duke for plaintiff; Gary Adam Moyers, Houston Foppiano, Elizabeth Mc Cullough, Barrett Johnson, Kath erine Hilkey-Boyatt, Carrie Meigs and Justin May for defendants.

Domestic Relations Parent & Child – Termination of Pa rental Rights – Murder of Mother Where (1) the respondent-Father fatally shot “Arthur’s” mother in front of Arthur; (2) as a result, Ar thur was adjudicated abused, ne glected and dependent; (3) Father was convicted of murdering Arthur’s mother; and (4) because of the egre gious circumstances that brought Arthur into its custody, DSS has not and will not provide any services which are designed to help Father rectify the conditions that caused Arthur to be removed from Father’s custody, the trial court could find that Father neglected Arthur. More over, Father cannot provide proper care, supervision or discipline to Arthur if Father is in prison for life without the possibility of parole. We affirm the termination of re spondent’s parental rights on the basis of neglect. In re A.N.S. (Lawyers Weekly No. 011-191-22, 9 pp.) (Allegra Collins, J.) Appealed from Guilford County District Court (William Davis, J.) Mercedes Chut for petitioner; Mary Cavanagh for guardian ad litem; Mary McCullers Reece for respon dent. 2022-NCCOA-521

Domestic Relations Parent & Child – Termination of Pa rental Rights – Attorneys – Appointed Counsel

It does not appear from the re cord that notice of the hearing to terminate the respondent-Moth er’s parental rights was served on Mother personally. Instead, notice was served on Mother’s appointed counsel, who had not heard from Mother for around three months. When Mother failed to appear at the hearing, the trial court should have inquired into efforts made by coun sel to contact Mother before allow ing counsel to withdraw. We vacate the order terminating Mother’s parental rights. Remand ed.Even though Mother’s notice of appeal was directed to the North Carolina Supreme Court rather than to this court, we can reason ably infer from which court Mother sought relief from the timely filing of her record on appeal and her brief with this court. Petitioners were not prejudiced by Mother’s mistake; in fact, they, too, timely filed their brief with this court. Mother’s mistake in failing to specify this court in her ap peal does not warrant dismissal. Ad ditionally, the court elects to treated Mother’s purported appeal as a peti tion for writ of certiorari and grant it in our Underdiscretion.

G.S. § 7B-1101.1(a)(1) requires: “At the first hearing after service upon the respondent parent, the court shall dismiss the provisional counsel if the respondent parent: [d] oes not appear at the hearing.” The trial court found and concluded all service and notice requirements had been met and that Mother’s provi sional attorney should be released, “despite efforts by the respective at torney[] to engage the Mother . . . in the participation of this proceeding.” This finding and conclusion is un challenged and is binding on appeal.

I would affirm. In re R.A.F. (Lawyers Weekly No. 011-192-22, 30 pp.) (April Wood, J.) (Lucy Inman, J., concurring) (John Tyson, J., dissenting) Appealed from Henderson County District Court (Mark Brittain, J.) James Palmer for petitioners; Peter Wood for re spondent. 2022-NCCOA-522

Civil Practice Statute of Limitations – S.C. Plane Crash – N.C. Borrowing Statute – Un fair Trade Practices According to the complaint, the South Carolina plaintiffs hired the North Carolina defendant to over haul the engine of plaintiffs’ air plane and, when plaintiffs took the plane out for a flight in South Caro lina, the engine failed, leading to an emergency landing which damaged the plane beyond repair and caused plaintiffs physical and psychological injuries. Plaintiffs’ only claim is one for unfair and deceptive trade prac tices (UDTP), and they filed it in North Carolina, within our four-year statute of limitations but outside South Carolina’s three-year statute of limitations. Under our borrowing statute, G.S. § 1-21, plaintiffs’ claim is time-barred in North Carolina as well. We affirm the trial court’s grant of defendant’s motion to dismiss.

NORTH CAROLINA LAWYERS WEEKLY I August 15, 202212 / OPINION DIGESTS medical records had been reviewed by a witness whom plaintiff rea sonably believed would qualify as an Theexpert.trial court found, and plain tiff does not dispute, that her wit ness, Dr. William Hall does not specialize in the same specialty as either defendant Gary Leonhardt, M.D., or defendant Mark Cervi, M.D. However, plaintiff does dis pute the trial court’s finding that Dr. Hall does not practice in a similar specialty as either Dr. Le onhardt or Dr. Cervi. Neither the trial court nor de fendants cited specific authority, of which plaintiff knew or should have known, holding that a physi cian who – like Dr. Hall – is board certified in internal medicine, pul monary disease medicine, and crit ical care medicine providing and supervising the care of a pneumo nia patient is not practicing in a similar specialty to that of an in ternist – like Dr. Cervi – or a gen eral practitioner – like Dr. Leon hardt – providing and supervising the care of a pneumonia patient. Furthermore, the trial court’s find ings of fact impermissibly draw in ferences against plaintiff. The trial court found that Dr. Hall had not formed any opinions as to the care provided by the de fendant-doctors. However, defen dants repeatedly objected during Dr. Hall’s Rule 9(j) deposition to any questions related to the opin ions Dr. Hall formed as outside the scope of the deposition. Thus, Dr. Hall’s deposition transcript does not reflect whether Dr. Hall formed any opinions. Dr. Hall’s deposition testimony supports the inference that pulmo nary disease medicine and criti cal medicine are sub-specialties of internal medicine. In his clinical practice, he regularly treats pa tients with pneumonia. Drawing all reasonable inferences in plain tiff’s favor from these facts, it was reasonable for plaintiff to expect Dr. Hall to be deemed similar in specialty to internal medicine prac titioners who provided care for a pneumonia patient. There is nothing in the record that would suggest a pulmonolo gist would treat pneumonia in any manner different than internal medicine practitioners. The trial court also found that “Dr. Hall has never cared for pa tients in a detention or correctional setting. . . .” Rule 9(j) does not require an expert witness to practice in the same, or even similar, setting. Nonetheless, Dr. Hall testified that he has experience treating inmates brought to the hospital for treat ment and his practice was to treat them in the same manner as any other patient, notwithstanding the fact they may be handcuffed and underMoreover,guard. to the extent the tri al court’s findings conflate the re quirements of N.C. R. Evid. 702(b) with the “same or similar commu nity” standard of care under G.S. § 90-21.12, the relevant community in this case is Pitt County, North Carolina, or similar communities. Dr. Hall verified that he is familiar with the standard of care within Pitt County and medical commu nities similarly situated to Pitt County, and specifically articulat ed the basis of his familiarity.

In re K.M.W., 376 N.C. 195, 851 S.E.2d 849 (2020), Mother is not required to demonstrate prej udice in order to obtain appellate relief based upon a violation of her right to counsel. Concurrence (Inman, J.) I write separately to note that this case exemplifies the tension between a parent’s right to due process and the best interest of a child who has been living with foster parents for more than four years. I do not take lightly the limbo in which children and foster par ents are placed in order to protect the rights of parents whose children have for years been adjudicated abused, neglected, and/or depen dent. Dissent (Tyson, J.) No petition for writ of certiorari is pending before this court. The majority’s opinion as serts the defective notice of appeal together with Mother’s arguments in her brief is a de facto petition and “in our discretion” decides to “treat the purported appeal as a petition for writ of certiorari” and address the merits, citing N.C. R. App. P. 21(a)(1).Assuch, even if the purported ap peal is properly before this court, the burden is and remains on Mother to show both the trial court committed reversible error and prejudice and she did not invite nor brought about the reasons to forfeit her parental rights. This she has not and cannot do. It is not the role of this court to create an appeal for appellant. Nothing in the reasoning or hold ing of In re K.M.W. absolves Mother or this court from long established requirements to grant a PWC or to shift or reduce her burdens on ap peal. A client who fails to keep appoint ments, does not maintain contact and appraise counsel of means and an address to contact them and ab sents and secrets themselves is a justifiable cause to cease represent ing a client.

2022-NCCOA-520

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In a plea agreement, defendant agreed to plead guilty to one count of violating 18 U.S.C. § 2250(d) by committing a crime of violence –kidnapping in violation of 18 U.S.C. § 1201 – while having failed to register as a sex offender; however, defendant reserved the right to appeal the question of whether § 1201 kidnapping was categorically a crime of violence. In return, the government agreed to dismiss a second § 2250(d) count along with a charge of failure to register as a sex offender under 18 U.S.C. § 2250(a). When defendant was successful on appeal, the government could not then put defendant on trial for failure to register as a sex offender. We vacate defendant’s conviction for failure to register as a sex offender.Onits face, the plea agreement seems to provide that so long as defendant lived up to his side of the bargain and entered a guilty plea to Count Two (kidnapping), the government would refrain from any further prosecution for conduct charged in the indictment – including the failure to register offense charged in Count One, on which defendant now standsMoreover,convicted.thepossibility of a successful appeal was a contingency expressly contemplated by the parties and their agreement, as reflected in defendant’s conditional plea to Count Two and his reservation of the right to appeal on the crime of violence issue. If the government

LAWYER TO LAWYER / Directory We are always grateful for referrals and value our co-counsel relationships. Call John Alan Jones or Forest Horne to discuss a possible relationship at (800) 662-1234. All inquiries held in the strictest confidence. Helping People Is What We Do. 800.662.1234MartinandJones.com Mesothelioma & Lung Cancer Serious Personal Injury Tractor Trailer Collisions Workers’ Compensation Defective Medical Devices Harmful Drugs & Products Medical Malpractice Serving all of North Carolina with offices in Raleigh, Durham and Wilmington. Your business partner. Serving Eastern www.olivercheek.com252.633.1930NC • All Chapters of Bankruptcy • Alternatives to Bankruptcies • Receiverships Tough Times Require Trusted Lawyers • All Chapters of Bankruptcy • Alternatives to Bankruptcies • Receiverships John P. Marshall COMMERCIAL & LITIGATIONCONSTRUCTION 106 S. McLewean Street P.O. Box 3169 Kinston, NC 252.527.800028502-3169x245Fax:252.527.8128 jmarshall@whiteandallen.com Continued from 12 ► See Page 14 ►

NORTH CAROLINA LAWYERS WEEKLY I August 15, 2022 OPINION DIGESTS / 13

Pursuant to § 1-21, where a claim arising in another jurisdiction is barred by the laws of that jurisdiction, and the claimant is not a resident of North Carolina, the claim will be barred in North Carolina as well. There is no question that plaintiffs are not North Carolina residents or that their UDTP claim is time-barred in South Carolina. In the parties’ contract, the warranty provisions stated that North Carolina law would apply to a warranty dispute. As neither an intentional breach of contract nor a breach of warranty, standing alone, is sufficient to maintain a UDTP claim, the warranty’s choice-of-law provision does not specifically apply to plaintiffs’ UDTP claim. Conversely, the warranty provision is not sufficiently broad to encompass plaintiffs’ UDTP claim. Accordingly, North Carolina law, and specifically its four-year statute of limitations, does not apply to plaintiffs’ UDTP claim by virtue of the terms of the warranty.Nonetheless, applying the laws of the State of North Carolina to plaintiffs’ UDTP claim would necessitate a determination of whether the borrowing provision of § 1-21 requires the application of South Carolina’s three-year statute of limitations to plaintiffs’ UDTP claim. Our Supreme Court has not addressed the proper choice-of-law test for UDTP claims. But under both the most significant relationship test and the lex loci choice of law analysis, plaintiffs’ claim arose in South Carolina. Under the most significant relationship test, the individual plaintiffs reside in South Carolina, plaintiffs shipped the engine to defendant from South Carolina, the airplane accident occurred in South Carolina, plaintiffs sustained their injuries in South Carolina, and plaintiffs’ alleged efforts to notify defendant of the accident occurred in South Carolina. South Carolina thus has the more significant relationship. Under the lex loci approach, plaintiffs sustained their injuries in South Carolina and the last act giving rise to plaintiffs’ claim occurred in South Carolina when plaintiffs’ airplane engine failed in South Carolina and they were forced to attempt an emergency landing in South Carolina. Thus, under the lex loci approach, plaintiffs’ claim “arose” in South Carolina.

Plaintiffs failed to plead facts sufficient to support a conclusion that defendants are equitably estopped from asserting the statute of limitations as a Finally,defense.evenif we were to apply North Carolina procedural law, plaintiffs have failed to state a UDTP claim under North Carolina substantive law because they have failed to allege substantial aggravating circumstances. Affirmed. Izzy Air, LLC v. Triad Aviation, Inc. (Lawyers Weekly No. 011-19322, 16 pp.) (Allegra Collins, J.)

Criminal Practice Plea Agreement – Appeal Preserved –Vacated Conviction – Lesser Included Offense

Labor & Employment Civil Rights – Race Discrimination –Hostile Work Environment & Retali ation Claims – Long Past Incidents & Insufficient Connections

McIver v. Bridgestone Americas Inc. (Lawyers Weekly No. 001-09822, 25 pp.) (Julius Richardson, J.) (Diana Gribbon Motz, J., concur ring in the judgment) No. 20-2310. Appealed from USDC at Raleigh, N.C. (Malcolm Howard, S.J.) Mark Lowell Hayes for appellant; Nicho las Alex Sarkhanian and Mary Go odrich Nix for appellees. 4th Cir. Criminal Practice Standing – Death Penalty Protocols –S.C. ‘Identity’ Statute Although plaintiff offers post-con viction representation to South Car olina’s death-row inmates, it brings this action, not on behalf of any of these clients, but on its own behalf. Plaintiff therefore lacks standing to challenge a South Carolina statute that limits the disclosure of informa tion about death penalty protocols. The district court dismissed plaintiff’s complaint on the merits. We vacate the district court’s judg ment and remand with instructions to dismiss for lack of jurisdiction. Plaintiff alleges that S.C. Code Ann. § 24-3-580 (“Identity Stat ute”)— which protects against the disclosure of certain information re lated to the state’s execution proto cols—violates its First Amendment right to counsel clients and to par ticipate in public debate about the death penalty. Plaintiff also chal lenges a 2015 opinion by the South Carolina Office of the Attorney Gen eral (“AG”) interpreted the Identity Statute’s use of the phrase “member of an execution team” “to include an individual or company providing or participating in the preparation of chemical compounds” intended for use in executions. South Carolina currently lacks the drugs required for execution by lethal injection, and there is a pending legal challenge to the con stitutionality of execution by fir ing squad. Consequently, there are currently no planned executions in South Carolina and none set to be scheduled.Plaintiff has failed to show that it would find full redress through a declaration that the Identity Stat ute “is unconstitutional as applied to [it]” or, in the alternative, that the 2015 AG Opinion’s “interpreta tion . . . is improper and should be invalidated.” Even if we were to grant plaintiff the exact relief it has requested, defendant Stirling, as director of the South Carolina De partment of Corrections, would still retain pure discretion over whether to provide (or not provide) the exe cution-related information plaintiff is seeking. Moreover, when plaintiff tried to obtain the protocols through the Freedom of Information Act (as opposed to the First Amendment claims pressed in the present suit), a South Carolina state court held the information constitutes “secu rity plans,” which is not the kind of “public record” that is subject to disclosure, see S.C. Code Ann. § 342-20(c). Plaintiff did not appeal that ruling. Thus, even if we were to strike down the Identity Statute or the 2015 AG Opinion, plaintiff still would have no legal right—through FOIA or any other vehicle—to de mand the information it seeks. At most, it could ask Stirling for it; yet, he appears to retain discretion over whether to release such infor mation. And plaintiff has put for ward no evidence establishing that Stirling would, in fact, provide that information if left to his own discre tion. Any suggestion that he would do so is speculation built on specula tion.Therefore, granting plaintiff the relief it seeks would amount to no

Although it appears that the defendant-employer allowed inci dents of abhorrent racially-moti vated conduct – the hanging of a noose, hanging monkey images, and racist caricatures of President Obama and Trayvon Martin – to go unpunished, those incidents occurred years ago. The impetus for plaintiff’s allegedly retaliatory transfer was her complaint that someone often tampered with her machine, which impaired her per formance at work. Since plaintiff did not assert that the tampering was racially motivated, she has failed to make out a case for either a hostile work environment or re taliation. We affirm summary judgment for the Plaintiffemployer.doesnot attribute any of the conduct at issue to supervi sors. Harassment by a co-equal is less serious than that of a supervi sor.Furthermore, the explicitly rac ist conduct was not directed at plaintiff, though she knew about it and witnessed most of it. In any event, the sporadic con duct occurred long ago. The most recent instance occurred more than five years before plaintiff filed this claim. The conduct is thus too remote to allow plaintiff’s hostile work environment claim to survive summary judgment. Plaintiff also claimed that some one tampered with her machine, thereby impairing her perfor mance at work. However, she has not shown that the tampering was racially motivated. Consequently, the tampering does not support her hostile environment claim, ei ther.Plaintiff’s retaliation claim is based on the fact that, when she complained to the employer about the tampering, the employer re sponded by transferring her to a different department. However, when she complained to the em ployer, she did not assert that the tampering was racially motivated. Without that knowledge, the employer had no duty to avoid transferring plaintiff based on her facially neutral allegations, which the employer perceived to disrupt the working environment and to cause friction among teammates. With no complaint tied to racial discrimination, the employer’s res olution of this interoffice dispute was exactly the kind of decision that employers must make every day, and the law does not require employers to look behind every complaint to determine the em ployee’s motive. Affirmed. Concurrence (Motz, J.) I write separately to emphasize the challenges faced by African American workers, like plaintiff, who work in a predomi nantly white environment. The plant in which plaintiff worked was home to the most blatant dis plays of racism imaginable, and the removal of explicitly racist im agery does not eliminate racism in the workplace. Especially in predominantly white workplaces, African Ameri cans regularly experience forms of racism that are less explicit but no less insidious. For instance, when an African American woman as serts herself, she is often tagged by her supervisors and coworkers as an “angry Black woman,” a harm ful and well-rooted racial stereo type.Plaintiff vigorously asserted that her machine had been tam pered with and expressed frus tration that the employer had not done enough to investigate her claims. The employer justified its transfer of her on the basis that in doing so, plaintiff was “very intense” and “loud.” I question whether an employer would have similarly labeled a white employee as “very intense” or “loud” under suchWhencircumstances.anAfrican American per son works in a predominantly white environment that has repeatedly allowed abhorrent, explicitly racist incidents to occur unpunished, the employee could well conclude that frequent machine tampering was based on race. But plaintiff failed to offer evidence that the tamper ing here was motivated by her race, so I concur in the judgment.

NORTH CAROLINA LAWYERS WEEKLY I August 15, 202214 / OPINION DIGESTS wanted to reserve its right to pursue the failure to register charge should defendant’s challenge prove success ful, it would have included language to that effect in the agreement – as the government often does. Or the government could have required defendant to plead guilty to Count One – the failure to register charge – along with his conditional plea to Count Two. But it did neither. As a result, the plea agreement prescribed that, if defendant lost his appeal, he would stand convicted on Count Two – but that if he won, the government could not pursue the other charges in the indictment. The government never contracted for the right to prosecute defendant on failure to register charges, and so it may not prosecute him now. In finding to the contrary, the dis trict court relied primarily on what it saw as the absence of an “immu nity-on-remand provision” – that is, a provision stating expressly that defendant could not be prosecuted for failure to register if he succeeded on appeal of his Count Two crime of violence conviction. But the fairest reading of the agreement is that it does just that: So long as defendant abides by his agreement to plead guilty to Count Two – with an ex press right to appeal his conviction, and with no further proviso as to the outcome of that appeal – the govern ment promises not to “further pros ecute [defendant] for conduct consti tuting the basis for the Indictment,” which would include the failure to register offense charged in Count One. And even if there were some ambiguity on this point, the burden would be on the government, not on defendant, to clear it up. Contrary to the government’s “frustration of purpose” argument, the plea agreement was not made on the “assumption” that Count Two would remain valid; to the contrary, it explicitly contemplated a legal challenge. Just as we often enforce plea agreements against criminal defendants even in the face of sub sequent, favorable changes in the law, so, too, must we enforce plea agreements that may later prove less advantageous than the govern ment had anticipated. The district court decided that, upon the vacatur of defendant’s plea to kidnapping, the plea agreement required him to plead guilty to the lesser included offense of failure to register as a sex offender. When he failed to do so, he repudiated the agreement, allowing the govern ment to prosecute defendant on pre viously dismissed charges. We cannot agree. We can find no support for the proposition that de fendant’s agreement to plead guilty to Count Two as charged incorporat ed a separate promise also to plead guilty to its lesser included offense of failure to Furthermore,register.aguilty plea must be knowing, intelligent and volun tary. But there is no background law that might have alerted defendant (or his counsel) that his promise to plead guilty extended beyond the § 2250(d) offense actually charged in Count Two to the lesser included failure to register offense. Nor, as best we can tell, did anyone inform defendant at his plea colloquy that he was promising to enter a guilty plea to § 2250(a) – notwithstand ing the dismissal of that charge in Count One – if he succeeded on ap peal. There is no unambiguous pro vision in his plea agreement to that effect, either. We do not think it can be said that defendant knowingly and intelligently agreed to plead guilty to Count Two’s lesser includ ed Finally,offense. 18 U.S.C. § 3296 provides a mechanism for reinstatement of counts dismissed pursuant to a plea agreement where “the guilty plea was subsequently vacated on the motion of the defendant.” There appears to be little or no precedent analyzing § 3296 in this context. Nonetheless, at oral argument, the government conceded that if its plea agreement barred it from pros ecuting defendant on the previously dismissed charge of failure to regis ter, then it would remain bound by that agreement and could not pur sue the charge by way of reinstate ment under § 3296. And defendant made the correlative concession: that if the plea agreement did pro vide that the government could pursue the dismissed counts, then it would be able to do so whether or not § 3296 applied. The parties agree, in other words, that § 3296 is neither sufficient (the government) nor necessary (defendant) to allow for prosecution on the dismissed charges after defendant’s convic tion was vacated on appeal; here, it is the plea agreement itself that controls. The plea agreement here barred the government from pursu ing the failure to register charge on remand.Vacated and remanded. United States v. Petties (Lawyers Weekly No. 001-097-22, 17 pp.) (Pa mela Harris, J.) No. 21-4337. Ap pealed from USDC at Raleigh, N.C. (James Dever, J.) Jennifer Claire Leisten and Alan DuBois for appel lant Lucy Partain Brown, Norman Acker, David Bragdon and Kristine Fritz for appellee. 4th Cir.

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The racetrack’s second constitu tional claim alleges that the abate ment order, levied against the defendant-racetrack and no other speedways, constituted selective enforcement that thereby ran afoul of N.C. Const. art. 1, § 19’s decree that “[n]o person shall be denied the equal protection of the laws[.]”

Thus, in response to leading ques tions by a prosecutor and advice from his lawyer, defendant acknowl edged that he had not—in reality— been allowed to possess a firearm at the time of the underlying incident. But defendant persistently denied having known at the time he pos sessed the firearm that his previous conviction had the characteristics necessary to trigger the felon-inpossession statute. Had this case gone to trial, the government would have needed to prove that defendant knew, when he possessed the firearm, that his prior state conviction was punishable by more than two years of imprison ment. Although defendant ultimate ly admitted that he had a qualifying prior conviction, his statements did not address whether he had the rel evant knowledge at the time of the underlying incident. The record tends to show that defendant would have been able to mount a potentially credible argu ment at trial that he lacked the nec essary knowledge to be convicted. There is also evidence that defen dant’s contemporaneous preference would have been to hold the govern ment to its burden. Defendant hesi tated during the plea colloquy when asked about the critical element, and shortly thereafter wrote a letter to the district court further attempt ing to clarify exactly what he knew andFinally,when. allowing defendant’s plea to stand without further inquiry would seriously affect the fairness, integrity, and public reputation of judicial proceedings. Vacated and remanded. Dissent (Agee, J.) Defendant has failed to meet his burden and is not en titled to plain-error relief. During his Rule 11 colloquy, he admitted he was “[a] convicted felon” for pur poses of § 922(g)(1) at the time of his offense. In his subsequent letter to the district court, he admitted that his prior conviction “made [him] a prohibited person to have a gun.” Yet the majority sets aside these straightforward admissions through strained interpretations of inappo site evidence. The majority goes further. This court permitted the government to supplement the record on appeal with evidence which confirms that defendant cannot meet his burden. The majority vacates this ruling in a footnote and refuses to consider any of the government’s supplemen tal record evidence. That ad hoc de cision sets us apart from all other circuits to have addressed this is sue, which permit the government to supplement the record on appeal when presented with a Rehaif claim on plain-error review. United States v. Heyward (Law yers Weekly No. 001-100-22, 47 pp.) (Toby Heytens, J.) (Steven Agee, J., dissenting) No. 18-4819. Appealed from USDC at Charleston, S.C. (David Norton, J.) Emily Dec Har rill for appellant Kathleen Michelle Stoughton, Sherri Lydon, Corey El lis, Nathan Williams and Sean Kit trell for appellee. 4th Cir.

Criminal Practice Firearm Possession – Rehaif Error –‘Knowingly’ – Felon Status

Our Supreme Court has set out the two-part test for selective en forcement as (1) a singling out of the defendant for (2) discriminatory, in vidious reasons. The racetrack once again pleads that its rights were violated by plaintiff in his official capacity as a state actor, and that it has no ave nue for redress other than an action under the constitution. The racetrack effectively pled that it was among a class of “many speedways” that similarly conduct

ShutdownProhibitionCovidConstitutionalPandemic–MassGathering–RacetrackDefiance–

Background Near the start of the pandemic, the governor issued executive orders banning mass gatherings. Defen dant Turner spoke out against the bans. Defendants consulted with local health officials, followed the protocols they recommended, and held race events, each of which was attended by more than 1,000 specta tors.When the local sheriff declined to enforce the executive order, plain tiff issued an abatement order, de manding that defendants comply with the governor’s executive or ders. Plaintiff then sought and ob tained a preliminary injunction bar ring defendants from holding mass gatherings. Defendants filed coun terclaims, alleging violations of the statePlaintiffconstitution.voluntarily dismissed his claims, but the trial court denied plaintiff’s motion to dismiss defen dants’ counterclaims. Plaintiff ap peals. Fruits of Their Labor N.C. Const. art. I, § 1 guarantees North Carolina citizens the right to “the enjoyment of the fruits of their own labor. . . .” Our courts have con strued this right to be synonymous with their “right to earn a living” in any lawful occupation. Arbitrary interference with private business and unnecessary restrictions upon lawful occupations are not within the police powers of the state. The racetrack has pled that its rights were violated by plaintiff in his official capacity as a state actor. The racetrack has also pled its lack of an alternative, adequate state remedy through which it could seek relief. We agree that the racetrack has no other avenue to seek relief for plaintiff’s allegedly improper en forcement apart from a direct action under the constitution. The racetrack has also pled a colorable, though admittedly novel, claim for government intrusion on its right to earn a living. It is wellestablished that the fruits of their labor clause applies when our gov ernment, most often the legislature, enacts a scheme of legislation or regulation that purports to protect the public from undesirable actors within occupations. Likewise, our courts have more recently held that the clause also applies when a gov ernment employer denies a state employee due process with respect to the terms and procedures of his or her employment. It naturally follows that actions taken by other non-legislative state actors, whether elected officials or unelected bureaucrats, may run afoul of a citizen’s right to the fruits of his own labor when they arbi trarily interfere with occupations, professions, or the operation of busi ness.The core principle behind the fruits of their labor clause is that government may not, under the guise of protecting the public inter ests, arbitrarily interfere with pri vate business, or impose unusual and unnecessary restrictions upon lawful occupations. Here, the in tended purpose of the governor’s or der was not to regulate a particular occupation or business enterprise, but the direct and intended purpose of the plaintiff’s abatement order was to cease the operation of a busi ness. The racetrack pled that the abate ment order was the foundational au thorization to force it to cease oper ating its racetrack and that the was order unconstitutional as applied to it. An examination of the facts sur rounding the COVID-19 pandemic at a later stage of trial may show that the racetrack’s precautionary measures were sufficient to combat the spread of COVID-19 within an open-air racetrack. Presuming these facts in favor of the racetrack as the non-movant, the reasonableness of an “imminent hazard” as justi fication for plaintiff’s actions can be questioned. The racetrack ad equately pled that plaintiff, through his abatement order, deprived the racetrack of its constitutional right to the fruits of one’s own labor; therefore, sovereign immunity can not bar the racetrack’s claim.

Although he plead guilty to being a felon in possession of a firearm, defendant repeatedly asserted that his underlying convictions did not qualify as felonies or crimes pun ishable by imprisonment for a term exceeding one year. Accordingly, de fendant is the rare defendant who can make the difficult showing that, had he been properly advised, there is a reasonable probability that he would not have pled guilty. We vacate defendant’s conviction and remand for further proceedings. Defendant pleaded guilty to “knowingly” possessing a firearm af ter being convicted of “a crime pun ishable by imprisonment for a term exceeding one year.” 18 U.S.C. §§ 922(g)(1), 924(a)(2). Two years later, the Supreme Court held that “the word ‘knowingly’ applies both to the defendant’s conduct and to the defendant’s status.” Rehaif v. Unit ed States, 139 S. Ct. 2191 (2019). Defendant was not advised of the second knowledge requirement be fore pleading guilty, and his lawyer made no objection to that omission. Because it is now clear that the government must prove that a de fendant knew he was a felon when he possessed the firearm, we con clude the district court plainly erred in not advising defendant of that requirement before accepting his guilty plea. In prior proceedings, defendant repeatedly insisted that he had not known of the relevant fact—that is, his status as a felon—that made it unlawful for him to possess a fire arm. The first occasion was during a hearing on state charges that were ultimately dismissed. At that hear ing, the state prosecutor asked de fendant if he was “legally allowed to have a gun.” Defendant responded that he had “owned a gun before in [his] name, ma’am, yes,” and that he was “not a felon right now, so [he could] get one.” After the government followed up, “Isn’t it true that you were con victed of possession of cocaine and unlawful carrying of a pistol in the past,” Heyward responded, “Yeah, but I pleaded to a misdemeanor and got six month probation.” Pressing on, the prosecutor as serted that defendant’s prior drug conviction “carries over a year” and asked, “so federally you are not al lowed to possess a gun; correct?” At that point, defendant said: “I guess so. It says on my gun act I pleaded to a misdemeanor and I cannot possess ammunition. But it didn’t say I can’t own a firearm.”

A third example appears in a letter defendant wrote the district court in connection with his sentenc ing. In that letter, defendant stated, “I didn[’]t have any felon[ies] in the state only [misdemeanors]. I did get 6 months probation when I was 21 years old in 2006 for unlawful carry of a gun that was register[ed] to me in my name with simple poss[ession] of [cocaine] which made me a pro hibited person to have a gun but other than that my record is clean.”

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Selective Enforcement

The second instance occurred dur ing the change of plea hearing before the district court. After reciting the factual basis for defendant’s plea, the government stated: “I’ll tell the Court also that at the time this inci dent occurred, as I mentioned ear lier, he was a convicted felon.” The district court asked defendant if he “agree[d] with the prosecutor’s sum mary of the—that you were [a] con victed felon on July 18th and 19th, 2014, and at that time you had this .357 magnum in your possession?” Defendant did not immediately re spond, stating “I would like to refer that question to my attorney.” After that consultation, defendant said, “Yes.”

NORTH CAROLINA LAWYERS WEEKLY I August 15, 2022 OPINION DIGESTS / 15 more than an impermissible advi sory opinion, as the organization’s alleged injuries would remain unre dressed. As such, we lack authority to consider its claims. Vacated and remanded. Justice 360 v. Stirling (Lawyers Weekly No. 001-099-22, 19 pp.) (Ste ven Agee, J.) No. 21-2205. Appealed from USDC at Columbia, S.C. (Mary Lewis, J.) Lindsey Caroline Ruff, Jared Carter and John Kassel for appellant; Kevin Alan Hall, Alan Wilson, Robert Cook, Emory Smith, Todd Carrell and Bryant Caldwell for appellees. 4th Cir.

The defendant-racetrack’s coun terclaims allege that its constitu tional rights to earn a living and to be free from selective enforce ment were violated when the plain tiff Secretary of the Department of Health and Human Services shut down the racetrack during the CO VID-19 pandemic. Reading the al legations as true, they are sufficient to survive a motion to dismiss under N.C. R. Civ. P. 12(b)(6). We affirm the trial court’s denial of plaintiff’s motion to dismiss the counterclaims on the basis of sover eign immunity.

Tort/NegligenceLandlord/Tenant–CodeViolations

The question of whether a juve nile-age conviction may count to wards a three-strikes law that man dates a sentence of LWOP appears to be an issue of first impression in our state.Nevertheless, applying the gen eral principles found in U.S. Su preme Court precedent, in North Carolina Supreme Court precedent and in persuasive precedent from other jurisdictions, the application of the violent habitual felon statute to defendant’s conviction of seconddegree kidnapping, committed when defendant was 33 years old, did not increase or enhance the sentence de fendant received for his prior seconddegree kidnapping conviction, com mitted when defendant was 16 years old.Thus, the trial court correctly de termined, “Defendant’s sentence did not violate the constitutional prohi bitions against mandatory sentences of [LWOP] for juveniles.” In turn, the trial court did not err by ultimately concluding, “Defendant’s sentence is therefore not unconstitutional as ap plied to Defendant.”

Finally, in accordance with State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818 (1997), the trial court did not err in concluding defendant’s sentence of LWOP for second-degree kidnapping is not disproportionate under the Eighth Amendment.

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Ineffective Assistance Claim At the hearing on defendant’s mo tion for appropriate relief (MAR), his 2001 trial counsel, Mark Key, had an imperfect recollection of all the statements he had made to de fendant. During the intervening 18 years, defendant’s case file had been destroyed. These circumstances prevented the trial court from re constructing the circumstances of counsel’s challenged conduct and evaluating the conduct from coun sel’s perspective at the time. Furthermore, a review of the re cord shows Key met with defendant on 25 April 2001, before the trial on 1 October 2001, to discuss a plea of fer with defendant, and at the very least, informed defendant he was fac ing the potential of LWOP depending on the outcome of the trial. Indeed, defendant acknowledged he knew he was “facing my life with no parole in prison” in discussions with the trial court on 1 October 2001. Thus, the ev idence supports the trial court’s find ings that defendant was informed of the plea deal before trial, defendant knew of the possibility of LWOP, and Key fully, timely, and competently advised defendant of the desirabil ity of the plea deal. Based on these findings, the trial court did not err by determining Key’s performance was not objectively unreasonable. Assuming arguendo that Key’s performance was constitutionally deficient, the trial court found that defendant never expressed to any one a desire to accept the plea deal; defendant knew he faced a sentence of LWOP, but still declined to accept a plea bargain; and the evidence did not demonstrate a reasonable proba bility defendant would have accepted a plea. The record supports the trial court’s findings. In turn, those find ings support the determination that defendant had not established he was prejudiced by Key’s allegedly de ficient performance.

NORTH CAROLINA LAWYERS WEEKLY I August 15, 202216 / OPINION DIGESTS ed races with fans in attendance during the period where such ac tions were banned by executive or der. The racetrack further pled that the governor Cooper and plaintiff “singled out” the racetrack for en forcement by directing the sheriff to take action against the racetrack and, when that failed, by issuing the abatement order against the race track alone. Finally, the racetrack’s counterclaim pled its belief that it was singled out for enforcement in response to defendant Turner’s statements to the press “and not because a true Imminent Hazard exist[ed,]” as plaintiff asserted in the abatement order. The racetrack has sufficiently pled that plaintiff singled it out for enforcement in bad faith for the in vidious purpose of silencing its law ful expression of discontent with the governor’s actions. Therefore, sover eign immunity cannot bar the race track’sAffirmed.claim.

Kinsley v. Ace Speedway Racing, Ltd. (Lawyers Weekly No. 011-19422, 24 pp.) (Jefferson Griffin, J.) Appealed from Alamance County Superior Court (John Dunlow, J.) Nicholas Brod, Zachary Ezor and John Barkley for plaintiff; S.C. Kitchen for defendants; Jeanette Doran for amicus curiae. 2022-NC COA-524

Affirmed. State v. McDougald (Lawyers Weekly No. 011-196-22, 23 pp.) (Toby Hampson, J.) Appealed from Harnett County Superior Court (Winston Gil christ, J.) Nicholas Sanders for the state; Christopher Heaney for de fendant; Marsha Levick, Aryn Wil liams-Vann, Katrina Goodjoint, Riya Saha Shah and John Mills for amici curiae. 2022-NCCOA-526

Eighth Amendment

Criminal Practice Violent Habitual Felon – Constitu tional – First Impression – Underlying Conviction as a Minor Defendant was only 16 when he committed one of the felonies under lying his conviction as a violent ha bitual felon, yet the violent habitual felon statute required the trial court to sentence defendant to life without parole (LWOP) for his conviction for a subsequent kidnapping. Since the violent habitual felon statute and the resulting LWOP sentence applied to the conviction for a kidnapping that defendant committed as an adult, the LWOP sentence was not imposed for conduct committed before defen dant was 18 years of age. We affirm the denial of defen dant’s motion for appropriate relief. In 2001, defendant was convicted of second-degree kidnapping, mis demeanor breaking or entering and assault on a female. Defendant had two prior convictions, including (1) a guilty plea to second-degree kid napping, which was entered in 1984 when defendant was 16 years old, and (2) a 1988 no-contest plea to sec ond-degree sexual offense, common law robbery and armed robbery. In 2001, the jury found defendant guilty of attaining violent habitual felon status, and the trial court imposed the mandatory LWOP sentence.

Accepting this as true, as we must, plaintiff nevertheless fails to dem onstrate that an owner’s failure to measure the width and height of the steps and calculate the tread slope constitutes a breach of the owner’s duty to make a reasonable inspec tion to ascertain the existence of hidden dangers. Rather than measuring the steps themselves, the landlords relied on a licensed home inspector’s exper tise and the feedback of those who regularly used the steps. In light of the inspector’s report, their tenants’ accounts, and their own inspections of the steps—none of which suggested the presence of the minor code violations at issue— the landlords had no reason to sus pect that the steps contained “hid den hazards” that required repairs or Acceptingwarnings. plaintiff’s position would require landowners to doublecheck the work of their hired profes sionals, which would unreasonably mandate that landowners perform important safety tasks without the requisite expertise. Plaintiff has failed to come for ward with evidence that the land lords breached their duty to make a reasonable inspection to ascertain the existence of hidden dangers. As such, plaintiff cannot demonstrate that the landlords negligently failed to correct the condition of the steps after actual or constructive notice of its existence. Affirmed. Asher v. Huneycutt (Lawyers Weekly No. 011-195-22, 19 pp.) (Valerie Zachary, J.) Appealed from Mecklenburg County Superior Court (Karen Eady Williams, J.) Robert Smith and Stanley Green for plaintiff; Stephen Fuller and Joseph Fulton for defendants. 2022-NC COA-517

Premises Liability To prove a defendant’s negligence in a premises liability case, a plain tiff must show that the defendant either (1) negligently created the condition causing the injury or (2) negligently failed to correct the con dition after actual or constructive notice of its existence. Although the landlords owed a duty of reasonable care to plaintiff as a lawful visitor on their property, plaintiff cannot demonstrate that the landlords breached their duty by failing to notice and remedy the steps’ minor code violations. Plaintiff argues that the land lords breached their duty of rea sonable care because they failed to notice “the unreasonably hazardous conditions and Code violations[,]” which “a reasonable inspection would have revealed[.]” In support of this contention, plaintiff points to his expert’s opinion that a person could have discovered the problems with the steps “us[ing] nothing more than a tape measure or other simple tools to detect them—no specialized equipment or calculations would be needed (with the possible exception of the calculation of tread slope).”

–Fall Down Stairs – Reliance on Inspec tion After plaintiff fell down a threestep set of stairs at defendants’ rental house, an inspection revealed that the stairs’ height and slope varied slightly from what the North Carolina Residential Building Code required. The defendant-landlords’ inspector had not noticed the varia tions, nor had any of the landlords’ tenants. With no notice of the viola tions or any other problem with the stairs (aside from a loose handrail, which the landlords fixed), the land lords were not negligent in failing to bring the stairs into compliance with the code. We affirm summary judgment for the landlords. Facts On 21 May 2016, when plaintiff and his wheelchair-bound wife were ready to leave a party at defendants’ rental house, the defendant-tenant grabbed the legs of the wheelchair and started to maneuver it down the three-step set of stairs leading to the garage. Plaintiff held onto his wife and tried to stop the tenant. When the tenant stopped mov ing the wheelchair, plaintiff lost his balance and fell down the stairs. He landed on a part of his wife’s wheel chair, severed his optic nerve and lost all vision in his left eye. Subsequent inspection by the parties’ experts revealed that the steps did not comply with the North Carolina Residential Building Code. Specifically, the variance among the steps’ heights was 1/4-inch greater, the threshold height from the floor was 1/4-inch higher, and the vari ance between each step’s tread depth was 3/8-inches greater than the code permitted; additionally, at least one tread had a 3.1 percent slope—1.1 percent greater than the maximum 2 percent slope that the code permitted. However, the defendant-land lords forecasted evidence that, be fore they bought the house in 2013, they had the house inspected. With respect to the stairs, the inspection revealed only that the handrail was slightly loose. The landlords tight ened the handrail and rented out theTenantshouse. who lived in the house from 2013 to 2015 reported no prob lems with the steps. The defendanttenant also reported no complaints with the steps. Negligence per se Proof that a building’s owner vio lated the State Building Code, with out more, is insufficient to establish negligence per se. The plaintiff must demonstrate the owner’s actual or constructive knowledge of the code violation. Here, plaintiff’s forecast of evi dence failed to support that the landlords knew or should have known of the code violation. At his deposition, defendant Michael Kiser said that he was unaware of any safety issues with the steps prior to plaintiff’s fall. The house’s tenants reported no problems with the steps. Furthermore, the official home inspection conducted in 2013 re vealed no problem with the steps, except that “[t]here [wa]s a little play or movement of the handrail for the steps located in the garage[,]” which the landlords repaired before renting out the house. The issues in question were not obvious, violat ing the code by fractions of an inch; indeed, the landlords’ expert could not visually identify any code viola tions with regard to the steps prior to measuring them. It follows, then, that it is not unreasonable for the landlords, who are neither construc tion nor carpentry professionals, to fail to notice the modest violations. Accordingly, although the steps violated provisions of the code, plaintiff cannot adequately demon strate that the landlords knew or should have known of the code viola tions. Plaintiff thus cannot establish that the landlords were negligent per se by violating the code.