North Carolina Lawyers Weekly August 29, 2022

■ BY NICK HURSTON BTM Wire Services

See Misconduct Page 7 ► DepositPhotos

See Attorneys Page 6 ►

Registered patent attorneys Doug Kim and Seann Lahey of the Greenville area have joined together with Charleston patent attorneys B.C. Killough and Ernest B. Lipscomb III to form the statewide intellectual property law firm Kim Lahey & Killough, according to a Kim Lahey & Killough news release.

‘Single

Attorneys

■ BY CORREY E. STEPHENSON BridgeTower Media Newswires

An employee who routinely received above-average performance reviews and received the highest rating possible in her last two reviews before her termination will have her discrimination case heard by a Thejury.4th U.S. Circuit Court of Appeals vacated the dismissal of the employee’s discrimination claim after finding enough evidence to send the claim of discrimination under the Americans with Disabilities Act, or ADA, to a jury. The employer put forth several arguments, including that the plaintiff wasn’t meeting its legitimate business expectations, a discrimination inference was unwarranted and its reason for terminating her wasn’t pretextual. Judge Roger L. Gregory disagreed.“There is a sufficient basis for a reasonable factfinder to conclude that [the employee] — despite being similarly-situated to the comparators — was treated differently,” he wrote. The judge added that a “reasonable factfinder could conclude that [the employer] searched for and found the single nugget of misconduct that allowed it to place [the employee] on an IAP and set the course for her termination.” Gregory was joined by Judge Stephanie D. Thacker. Judge A. Marvin Quattlebaum Jr., concurred in part and dissented in part, saying the evidence didn’t support a finding that the employee met legitimate expectations. The July 22 opinion is Cowgill v. First Data Technologies Inc. (VLW 022-2-179).

See Failure Page 6 ► NCLAWYERSWEEKLY.COM COA:

Page 2 AttorneyINSIDEreprimanded after of cial misconduct case Page 2 Charging, collecting excessive fee results in reprimand Page 2 Health care attorney appointed to Governor’s Council on Aging BAR DISCIPLINE ROUNDUP BAR DISCIPLINE ROUNDUP COMMENTARY VOLUME 34 NUMBER 17 ■ AUGUST 29, 2022 ■ $8.50Part of the network

FMLA leave Terri Cowgill worked as a call center representative from 2004 until September 2015 for First Data Technologies, Inc., a credit

Registered patent attorneys Kim, Lahey, Killough and Lipscomb collectively have more than 140 years of experience and have the capabilities in providing legal services throughout the Carolinas to companies ranging from start-ups and early ventures to established international markets, the release stated. Key practice areas include intellectual property, business and commercial litigation, mediation, employment, corporate and business matters, mergers and acquisitions, contracts, and cybersecurity in a number of industries to include manufacturing, software, energy, finance, hospitality, tourism, technology and more.

Evidence of pretextual firing saves ADA claim nugget of misconduct’ ■ BY JASON THOMAS jthomas@scbiznews.com

A trial court properly concluded that it did not have personal jurisdiction over a defendant that was never properly served with service of process, a unanimous panel of the North Carolina Court of Appeals has ruled, affi rming dismissal of the action. Gary Blaylock was hired by AKG North America in 2017. He claimed that the company fi red him for repeatedly complaining about the “sexual harassment, hostile work environment and absence of supervisors attempt to resolve the issues.” Blaylock fi led his original complaint in Alamance County Superior Court on Dec. 18, 2019, with the summons issued the same day. On Dec. 23, he attempted to serve the defendant but failed when the Alamance County Sheriff returned the summons, noting that the address given for the company was in Orange County. Over the next 12 months, Blaylock never properly served AKG. On Jan. 17, 2020, the defendant removed the action to the Middle District of North Carolina based on federal claims alleged in the complaint. In the notice of removal before the federal court, AKG raised the issue that Blaylock had not affected service of process. After removal, AKG sought an extension of time to answer or respond to the complaint, explaining that it had not been served by Blaylock. Blaylock responded with Failure of endsservicecase

Charleston B. C. Killough has provided legal services in the areas of patents, trademarks, copyrights, commercial transactions, litigation and mediation to his clients for over 30 years, the release stated. He has obtained more than 300 U.S. patents for clients, participated in prosecuting more than 100 foreign patent applications and filed more than 1,200 trademark applications with the U.S. Patent and Trademark Office on behalf of his clients. In addition, he has obtained numerous foreign trademark registrations for clients and his foreign patent work includes participation join to create new IP law firm

According to news release from Baker Donelson, Burgess previously served as senior di rector of Legal Ser vices and Facility Operations of the American Health Care Association and as general counsel of both the North Carolina Health Care Facil ities Association and the Assisted Living Federation of America, the national assisted living trade as sociation in Washington, D.C. A shareholder in Baker Donel son’s Raleigh/Research Triangle office, Burgess has over 35 years of experience advising providers on legal issues arising in hospitals, skilled nursing facilities, assisted living communities, hospice, home health and other aspects of health care, the release stated. He is recognized in the world of heath care law, being acknowl edged by Chambers USA, The Best Lawyers in America, Best Lawyers, North Carolina Super Lawyer, National Law Journal, and the North Carolina Bar Asso ciation.

BAR DISCIPLINE ROUNDUP BAR DISCIPLINE ROUNDUP

Although the defendant’s relationship with his client did not occur during a time of active prosecution of a case in which she was the victim/complaining witness, given the history of repeated domestic violence charges, it was reasonably likely that the DA’s Office would be reviewing the abuser’s compliance with probation and/or seeking to revoke his bond. In addition, the DA’s Office was prosecuting additional charges against the abuser while they were dating. Accordingly, the defendant should have reported the relationship to his superiors so they could be screened from any matter involving the client or the abuser, and the DA’s Office could demonstrate that defendant’s personal conflict of interest did not affect the State’s handling of cases against the abuser. His failure to properly and openly address the fact that he was dating the victim of crimes being prosecuted by the DA’s Office was prejudicial to the administration of justice in violation of Rule 8.4(d), in that it cast doubt on the integrity of the criminal process, formed the basis for MARs seeking to set aside several of the abusers convictions, and limited the state’s options in prosecuting him.

Attorney: Steven L. Gourley Location: Wake County Disciplinary action: Reprimand Background: The defendant was found guilty of professional misconduct due to the development of a personal relationship with a past client. After the defendant prosecuted several domestic violence charges in which his client was a complaining witness/victim, they got involved in a romantic relationship.

■ BY HAVILAND STEWART hstewart@nclawyersweekly.com Prominent health care attorney Ken Burgess has been appointed by North Carolina Gov. Roy Coo per to the Governor’s Advisory Council on AccordingAging.tothe North Carolina Department of Health and Human Services’ website, the Governor’s Advisor Council on Aging consists of 33 members, 29 of which were appointed by the governor, and two members that were appoint ed by the President Pro Tempore of the Senate, and two members appointed by the speaker of the house of representatives. The GAC is in place to advise the governor and the Secretary of Health and Human Services on recommendations for improving human services to the elderly. This project includes promoting public understanding of the prob lems the elderly population face, the need for new state programs in this field, and preparation of a plan describing the quality, extent, and scope of services to be provided to elderly people in North Carolina.

BurgessKen Attorney: David D. Moore Location: Wake County Disciplinary action: Reprimand

Background: The defendant is found guilty of charging and collecting an excessive fee in violation of Rule 1.5(a) and providing his client with a “receipt and release” form that violates Rule 1.8(h)(2). In May 2020, the defendant began representing his client regarding a Marital Separation Agreement (“MSA”) and charged a $3,500 flat fee. The fee agreement provides for monthly billing statements for work performed and expenses recorded during the previous month. In August 2021, the defendant’s client requested an update on the status of the MSA. The defendant informed his client that the only way to expedite the MSA would be to file suit and would require an additional $7,500 fee. By requesting an additional $7,500 from the client, despite the flat fee arrangement, the defendant attempted to charge and collect an excessive fee in violation of Rule 1.5(a). In September 2021, the client indicated that she would terminate the attorney/client relationship and requested an accounting of funds, any unused portion of her fee, and her client file. On Oct. 1, 2021, the defendant sent his client an invoice for $11,783. On Oct. 4, 2021, the defendant provided the client file to her upon the execution of a “receipt and release” form, which was prepared by the defendant’s paralegal. The form acknowledges receipt of the client file and termination of attorney/client relationship, but also states: “I release and indemnify the firm of the Law office of David D. Moore, P.C. from any and all claims whatsoever which may arise from his representation of me in this matter.” The defendant did not advise his client in writing of the desirability of seeking, nor gave his client a reasonable opportunity to seek, the advice of independent legal counsel in connection with the indemnification. By providing the “receipt and release” form for the client to sign the defendant violated Rule 1.8(h)(2), which forbids an attorney from settling a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection with the indemnification.

Attorney: Deborrah L. Newton

Press Millen, a partner in the Raleigh office, adds: “In his time at Womble, Sean proved himself as one of the finest and most creative appellate lawyers in the country. Those who worked closely with him had an opportunity to observe the relentlessness with which he fought for our clients, which in variably translated into sharp and powerful legal arguments on their behalf.”Andrussier has extensive ex perience with a range of issues of nationwide scope affecting busi ness organizations, and he has represented clients across a broad spectrum of industries. An active member of the North Carolina Bar Association, he is a longstanding member of the Appellate Rules Committee, and he is again serv ing as an elected member of the council for the Appellate Practice Section. He recently served by ap pointment of the N.C. Chief Jus tice a three-year term on the Chief Justice’s Commission on Profes sionalism.Andrussier received his J.D. from Duke University School of Law, where he was in the Order of the Coif and on the Duke Law Jour nal. After law school, he clerked for Judge Karen LeCraft Henderson of the U.S. Court of Appeals for the D.C. Circuit and the late Judge M. Blane Michael of the U.S. Court of Appeals for the Fourth Circuit. - Staff report

Cooper names Burgess to Advisory Council on Aging

NORTH CAROLINA LAWYERS WEEKLY I August 29, 20222 / NEWS

BAR DISCIPLINE ROUNDUP

Former Duke law professor rejoins Raleigh firm Womble Bond Dickinson an nounced in a news release that Sean E. Andrussier has rejoined the firm’s Business Litigation group. He has significant experi ence representing clients in com plex disputes, particularly appel late litigation and constitutional law issues. Andrussier returns to Womble from Duke University School of Law, where for years he was a clin ical professor of law and the direc tor of Duke’s Appellate Litigation Clinic, which successfully handled federal appeals in multiple cir cuits. Before joining Duke’s faculty full-time in 2009, he practiced for a decade at Womble in the firm’s Business Litigation group and cochaired the firm’s Appellate group. Andrussier first joined Womble from the Washington, D.C., office of Gibson Dunn, where he prac ticed in the Appellate and Consti tutional Law group. “Sean is a uniquely credentialed and proven talent in an area of lit igation that is often critically im portant to our clients,” said Chris Jones, leader of the firm’s Busi ness Litigation group. “His addi tion represents a strong, strategic addition to our appellate practice, and we are excited to welcome him back to Womble.”

Location: Wake County Disciplinary action: Reprimand Background: Defendant was found guilty of submitting fee applications that contained inaccurate and excessive billing entries. Defendant engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(d). In 2021 the defendant was appointed by The Office of the Capital Defender to represent eight indigent clients charged with murder. In May, June, and July 2021 she submitted fee applications for those eight cases. In September 2021, the Office of the Capital Defender informed the defendant that an audit conducted by The Office of Indigent Defense Services (IDS) showed that the defendant overbilled her clients, including duplicate billing for travel time, mileage and client meetings. At the time the defendant submitted her eight fee applications, she was failing to keep accurate clientspecific timesheets for her indigent murder cases. At the time of the audit, the defendant had already been paid for three of her eight fee applications. As a result, the defendant received a total of $6,520.40 in unearned funds. By submitting fee applications that contained inaccurate overbilling to The IDS and accepting payment for three of the eight fee applications, the defendant charged and collected a clearly excessive fee in violation of Rule 1.5(a).

“Resolving legacy litigation is one of my strategic priorities for the com pany, and we are fortunate to have Dave singularly focused on those efforts before he retires from Che mours,” Newman said in the release. Wellman takes on her new execu tive role with 20-plus years of legal experience, exceptional performance, and deep knowledge of the Che mours business. As a part of the legal leadership team at spin-off, Wellman was integral to the successful standup of Chemours as an independent, public company, and she developed the organization’s corporate gover nance framework. During her tenure with Che mours, Wellman enhanced her ca pabilities and business knowledge through assignments outside of the legal discipline. She served as plant manager at Chemours’ Chambers Works manufacturing site, where she led the operations team safely through the initial phase of the pan demic, maintaining full production with no interruptions. She also contributed to the global organizational design of the new Ad vanced Performance Materials busi ness unit and went on to become the leader of its sustainability strategy, positioning Chemours as a leader in responsible chemistry. Chemours’ Fayetteville Works manufacturing site is located on a 2,150-acre site in southeast North Carolina, near the Bladen and Cum berland county line, of which approxi mately 400 acres is developed, accord ing to Chemours’ website. Two other chemical manufacturing operations are located on the site, and together, we employ more than 550 people from the surrounding community.

WellmanKristine David Shelton Co. general counsel 832-6690 100 Raleigh, North Carolina

zaytounlaw.com (919)

Zaytoun Ballew & Taylor is very pleased to announce the addition of PJ Puryear as Of Counsel with the Firm.

names new

• Catastrophic Personal Injury and Medical Malpractice Civil Rights and Police Misconduct Boating and Maritime Accidents

RALEIGH. N.C. (AP) — A fed eral appeals court has blocked a lo cal North Carolina district attorney from prosecuting state Attorney General Josh Stein or anyone else for his 2020 campaign ad through a criminal libel law.

The Chemours Co., a global chem istry company with leading market positions in titanium technologies, thermal and specialized solutions, and advanced performance materials, announced that David Shelton, senior vice president, general counsel and corporate secretary, has announced his intention to retire from Chemours at the end of 2023, according to a Che mours news release.

Paul J. Puryear, Jr. (Of Counsel)

Mr. Puryear brings over a decade of trial and appellate experience to our firm, including trying cases in state and federal court, before the American Arbitration Association and the North Carolina Office of Administrative Hearings. His complex commercial litigation practice has included cases involving contractual disputes, intra-corporate disputes, unfair and deceptive trade practices, embezzlement, breach of fiduciary duty, and derivative claims. His practice will now expand into civil rights, medical malpractice, motor vehicle accidents, premises liability, and maritime law. Our expanded team at Zaytoun Ballew & Taylor looks forward to continuing to represent clients in state and federal courts in complex civil litigation matters. We continue to welcome referrals and associations in the following areas:

Appeals panel blocks law’s use in campaign case

Chemours

“This law is 90 years old, has never been used against any candi date, and undermines free speech in our state,” the campaign said. Freeman, a Democrat, recused herself from the campaign ad inves tigation, leaving in to a senior as sistantEarlierprosecutor.Tuesday, Democratic Gov. Roy Cooper criticized the in vestigation and the potential prose cution as “an unprecedented repres sion of free speech.” Stein succeeded Cooper as attorney general in 2017.

3130 Fairhill Drive, Suite

•

As a part of his transition plan, ef fective Oct. 1, Shelton will focus ex clusively on leading and managing the resolution of the company’s legacy liabilities and related remediation programs, and act as a legal advisor reporting directly to CEO Mark New man. Concurrent with this change, effective Oct. 1, Kristine Wellman, currently vice president, strategic planning, will be promoted to the role of senior vice president, general counsel and corporate secretary, lead ing all non-legacy aspects of the legal function, in addition to government affairs, ethics and compliance, corpo rate remediation and security.

•

The majority on a three-judge panel of the 4th U.S. Circuit Court of Appeals granted the request by Stein’s campaign committee to pre vent enforcement of the law while it seeks to have it declared uncon stitutional. A trial judge declined to issue an injunction.

• Land Condemnation and Eminent Domain • Representation of Physician and Dental Professionals in Board Licensure, Governmental and Insurer Regulatory Investigations, Complex Business Litigation and Non-Compete Disputes

Associated Press

27612

Josh Stein will not be prosecuting after a ruling from a federal court. Photo via AP

The law’s language says a viola tion occurs when a person knows a derogatory report “to be false or in reckless disregard of its truth or falsity,” the order said. So the law could actually criminalize someone who makes a true statement, ac cording to the “Candidatesjudges.running for office in North Carolina might well be chilled in their campaign speech by the sudden reanimation of a crimi nal libel law that has been dormant for nearly a decade — harming the public’s interest in a robust cam paign,” the order read. Heytens was nominated to the 4th Circuit by President Joe Biden, while Diaz was the choice of President Barack Obama.The probe stems from a com plaint that Stein’s Republican op ponent in 2020, Forsyth County District Attorney Jim O’Neill, filed with the State Board of Elections against Stein’s campaign. O’Neill’s complaint cited the law while demanding that the board in vestigate a political ad that accused the Republican of letting more than a thousand rape kits go untested. O’Neill said the ad was false be cause police agencies, not prosecu tors, are responsible for testing the kits.Stein and his allies have said the ad is truthful and was designed to counter false statements that O’Neill made during the campaign that Stein had failed to act on more than 15,000 untested rape kits since becoming attorney general in 2017.

A lawyer for Freeman, whose of fice took over the campaign ad in vestigation in 2021, has said block ing enforcement of the law could scuttle any prosecution because the statute of limitations on the misde meanor is two years. But the majority’s order said that such an issue is at least to some ex tent “self-inflicted” because Free man hasn’t adequately explained why it’s taken so long to bring charges.Theprevailing order directed that oral arguments on the appeal be held in December, which would likely be after the two-year prosecu tion window expires. It’s possible, however, that the window could be extended. Circuit Judge Allison Rushing wrote a dissenting opinion, saying Stein’s campaign, the ad produc tion company and the woman who appeared in the ad haven’t shown they are entitled to this “extraordi nary“Therelief.”state will forever lose its op portunity to enforce the law” if the grand jury proceedings are stopped, wrote Rushing, a nominee of Presi dent Donald Trump. Freeman said late Tuesday that she hadn’t yet read the opinion. The Stein campaign said in a statement that it was pleased with the delay.

-

NORTH CAROLINA LAWYERS WEEKLY I August 29, 2022 NEWS / 3

The 2-1 decision came the day after a Wake County grand jury formally asked the Wake district attorney’s office to submit an indict ment against Stein and two of his advisers or any one of the three for jurors to consider. Wake County DA Lorrin Freeman said Monday that could have happened as soon as next month. Any formal charges could harm the political future of Stein, a Dem ocrat and possible 2024 gubernato rialThecandidate.law,which dates back to at least 1931, makes it a misdemean or to circulate “derogatory reports” about a candidate with the intent of hurting that candidate’s chances in theEarlierelection.this month, U.S. District Judge Catherine Eagles refused to issue a preliminary injunction, say ing the law was constitutionally permissible because it criminal ized “false defamatory speech about public officials made with actual malice.”ButTuesday’s order from the ma jority — U.S. Circuit Judges Toby Heytens and Albert Diaz — says Stein’s campaign and other law suit plaintiffs are likely to succeed on their challenge that the law vio lates First Amendment free-speech protections.

Republican candidate Bobby Hanig, a current House member now seeking the 3rd District seat, lodged a protest last week ques tioning whether Jordan actually resides in Warren County. Warren is one of 10 northeastern counties that make up the 3rd District.

Kaufman & Canoles, which has of fices in Raleigh, N.C., has announced that Christopher L. McLean has been selected to chair the firm’s new ly established Sports & Entertain ment Team, according to a Kaufman & Canoles news relesae.

"Helping lawyers practice

better, more efficiently, and more profitably."

Michael Best continues NC expansion

Firm selects chair for newly created division ■ BY JASON THOMAS jthomas@bizjournals.com

Hanig alleges Jordan, a state Board of Transportation member, never moved to Warren County despite changing her voter regis tration to her stepfather’s house in Warrenton in December 2020. Rather, he said, Jordan moved into a Raleigh house in the late 1990s. Hanig’s case on Tuesday centered around photos of two ve hicles at Jordan’s Raleigh home that his attorney alleges show she stayed there at least 23 consecutive nights in July and August. Currituck board members “put partisanship aside and voted to do the right thing,” Hanig said. “I fully expect the State Board of Elections to do the same thing.” Jordan said she considers Warrenton her home and that she splits time between there and Ra leigh because her daughter and grandson live in the state capital.

Members of the Kaufman & Canoles’ Sports & Entertainment team include Nicole J. Harrell, Jo seph E. Houchin, Stephen E. Noona, William M. Palmer, Ellis H. Pretlow, and Randy C. Sparks Jr.

The Currituck board’s two Re publican members and board Chair Susan Johnson, a Democrat, agreed to send the case to the state board. The other two Democratic members said Jordan lives in the 3rd Dis trict.

The printing of ballots in the 10 counties is being delayed until the protest is resolved, State Board of Elections spokesperson Pat Gan non said. Jordan’s name will re main on the ballot if it doesn’t get resolved, he added.

CURRITUCK, N.C. (AP) — A closely divided county elections board in North Carolina deter mined last that there’s substantial evidence that a state Senate candi date doesn’t reside in the district for the seat she’s running for this fall.The Currituck County Board of Elections voted 3-2 to forward its findings from its election protest hearing involving the candidacy of Democratic 3rd Senate District can didate Valerie Jordan to the State Board of Elections to make a final decision, news outlets reported.

Election board moves NC Senate candidate protest forward

Drawing on two decades of experi ence in the real estate sector, Craw ford concentrates his practice in the areas of public finance, affordable housing and economic development. Wiggen is also a commercial real es tate attorney, who has steered his ef forts toward contract review over his decade in law.

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.

“Brian and Jack are incredibly tal ented real estate lawyers, held in high regard by their colleagues and peers in the region,” said James Forrest, of fice managing partner of North Caro lina, in the release. “Their addition to Michael Best further reinforces our strategic growth efforts in the North Carolina market. We welcome their unique backgrounds, which are sure to benefit our real estate clients, both regionally and national – and I’m ex cited to bring them onboard.” Previously, Crawford was a part ner at his former firm, providing a suite of essential legal services for regional real estate heavyweights in matters related to state and federal lending, as well as tax credit pro grams. From 2002 until 2014, Craw ford owned and operated his own solo law practice that focused on commer cial real estate and community devel opment.Inaddition, he served as out side counsel to the Affordable Hous ing Program for Branch Banking & Trust Company, now known as Tru ist Financial. Prior to that, Crawford served as Senior Vice President and General Counsel for North Carolina Community Development Initiative, Inc. — a collaborative community and economic development effort designed to support and facilitate transforma tion in the state’s low-wealth commu nities.“Brian has been deeply invested in the Triangle Region for nearly thirty years, and he brings with him sharp insights crucial to understanding the real estate market,” Michelle Wagner Ebben, chair of Michael Best’s Real Estate Practice Group, said in the re lease. “His dedication to community development shines through all the incredible work he’s done in the area, and he’ll be a vital asset to our team.”

NORTH CAROLINA LAWYERS WEEKLY I August 29, 20224 / NEWS ■ 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.

The Sports & Entertainment Team members use their business law expertise to assist and provide counsel to athletes and entertainers throughout their careers and after, as they look to invest and grow their opportunities, brand, and earnings, the release stated. Our professionalsexperiencedare dedicated to helping athletes and enter tainers build and maintain successful careers.Continuous change and growth in the sports and entertainment in dustries have necessitated specific legal needs for athletes, entertain ers, and organizations, according to the relee. New technology and platforms continue to impact how sports, media, and entertainment are produced, distributed, and con sumed. The latest gadgets, delivery methods, and content genres bring with them new opportunities for building successful brands as well as new hazards to avoid. The Kaufman & Canoles Sports & Entertainment team ensures their client’s financial interests and creative assets are pro tected.

Wiggen was in-house counsel for a North Carolina civil engineering firm before joining Michael Best. Prior to that, he was an entrepreneur and business owner in the fitness indus try, negotiating several leases over the course of seven years. From 2005 to 2014, he served in a number of le gal roles, culminating in his partner ship at Wiggen Law Group PLLC. “We’re excited that Jack has re cently chosen to return to law after years of working within his local com munity in the Triangle Region. His experience navigating real estate transactions related to major infra structure projects will be a great asset to the team, especially as we continue to expand our group’s capabilities,” said Jason Rogers, chair of the firm’s Corporate Practice Group, in the re lease.Crawford received his J.D. from North Carolina Central University in 2000 and his B.A. from Connecticut College in 1995. Wiggen received his J.D. from University of North Caro lina School of Law in 2005 and his B.S. from East Carolina University in 2002. - Staff report

In a statement after the hear ing, Jordan called Hanig’s protest a “political stunt” and said she was confident the state board “will cor rectly recognize my residency here in DemocraticWarrenton.”Party officials would have to find a replacement for Jor dan should she ultimately fail to re main a candidate.

Jack Wiggen CrawfordBrian Chris McLean

Michael Best announces that Bri an Crawford has joined the firm’s Real Estate Team as a partner in the Durham office, and Jack Wiggen has joined the firm’s Corporate Practice Group as senior counsel in the Wilm ingtonCrawfordoffice. and Wiggen mark the latest addition to the firm in the past month, coming on the heels of Linda Emery and Chris Seamster in Mil waukee and Winston-Salem respec tively, according to a Michael Best news release.

Approved NC NC NC honors attorney with Advocate Award

- Associated Press

NORTH CAROLINA LAWYERS WEEKLY I August 29, 2022 NEWS / 5

Bar Association

Superior Court TrainingMediation MAY 8 - 12, 2023 RALEIGH,

Life of luxury

■ BY JASON THOMAS jthomas@scbiznews.com

MEDIATION TRAINING

Superior Court TrainingMediation JANUARY 23 - 27, 2023 CHARLOTTE,

A stunning 26-acre estate in the Blue Ridge Mountains has entered the market for $9.25 million — the highest-priced home in Fairview. Located at 5 Wild Wind Trail, this unique residence boasts sweeping long-range mountaintop vistas and sunset scenes. After an extensive renovation, the mountain residence was awarded Best Whole House Re model, Best Outdoor Living Space and Best Room Remodel for the kitchen by the North Carolina Home Builders Association in 2019. The listing is marketed exclusively by Marilyn Wright of Premier Sotheby’s International Realty’s Asheville of fice.Originally built in 2009, the fourbedroom, five-and-two-half-bath primary residence underwent a twoyear remodel and expansion by Kev in Reed of BlueStone Construction, architect Wayland Shamburger and interior redesign by Ronal Fenster macher. An array of distinguished ele ments and bespoke finishes inspired by destinations across the globe are present throughout the reimagined property. A porcelain tile fireplace surround in the great room soars to 25 feet while European white-oak flooring is complemented by waxed steel beams for a contemporary and industrial feel. Bright, open living spaces deliver a modern sanctuary that connects to the views beyond.

MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC.

The North Carolina Bar Associa tion Litigation Section recently hon ored Young Moore’s Walter E. Brock Jr. as the 14th recipient of The Ad vocate’s Award, according to a Young Moore news Presentedrelease.asmerited, and not an nually, the award recognizes a life and career exemplifying the art and skill of advocacy, client and community ser vice, the highest degree of profession alism, and dedication to the pursuit of justice, the release stated. Brock joined Young Moore in 1979 and focuses his practice on civil litiga tion and insurance law. He litigates cases in the Superior Courts through out North Carolina, including the North Carolina Business Court, and in each of the three Federal District Courts in North Carolina. He fre quently represents parties in appeals before the Court of Appeals of North Carolina, the North Carolina Supreme Court, and the United States Court of Appeals for the Fourth Circuit. Brock is admitted to practice before the United States Supreme Court. \ He also appears before administrative agencies, including the North Carolina Department of Insurance. Brock authored the book chapter on professional liability insurance in the “LexisNexis Practice Guide: North Carolina Insurance Litigation.” He has served the bar as president of the Wake County and 10th Judicial Dis trict Bars, as a hearing officer on the North Carolina State Bar Disciplin ary Hearing Commission, and is in his third term as a State Bar Councilor representing the 10th Judicial District on the Grievance Committee and the Authorized Practice of Law Commit tee among others. He is an elected member of the Eastern North Carolina Chapter of the American Board of Trial Advocates and a Fellow of the American College of Coverage Counsel. He is recognized in The Best Lawyers in America, North Carolina Super Lawyers, and Business North Carolina’s Legal Elite.

Walter Brock Jr., right, with the current chair of the NCBA Litigation Section, Matt Van Sickle, as Brock Jr. receives The Advocates Award, which recognizes a life and career exemplifying the art and skill of advocacy. Photo provided

by the Dispute Resolution Commission and the NC CLE Board! Andy Little, Lead Instructor For more information, please contact us at: 1-888-842-6157 or info@MediationIncNC.com Visit our web site at www.MediationIncNC.com Superior Court TrainingMediation OCTOBER 24 - 28, 2022 RALEIGH,

A 26-acre mountainside estate in the Blue Ridge Mountains that was originally built in 2009 has entered the market for $9.25 million, and is the highest-priced hom in Fairview, which is just outside of Asheville. Associated Press

Fairview’s most expensive home listed for $9.25 million

The award-winning kitchen is crafted with natural stone chevron tile, a brass range, gold fixtures, a turquoise stove and an island that was quarried in Brazil. An expansive main-level master wing captures the beauty of the surrounding landscape through frameless windows. The home’s lower level is reminiscent of a sophisticated urban hotel high lighted by a Parisian-style bar with custom light fixtures from New York. Middle Eastern and Asian influences are also showcased throughout the bar and lounge while silver-studded French blue doors open into a stateof-the-art theater room. Additional appointments include an elevator, billiards room and spa/steam room. The outdoor living area features phantom screens, infinity-edge pool, spa and fire pit that overlook the mountain range. A separate guest house is ideal for entertaining fea turing three bedrooms and two full baths. The property also includes at tached and detached garages. “This carefully curated estate is truly one of the most remarkable residences in the western North Car olina region,” said Marilyn Wright. “Its breathtaking views, one-of-akind features and abundant acreage will appeal to the discerning buyer seeking exceptional private moun tain living just outside of downtown Asheville.”

■ BY JASON THOMAS jthomas@bizjournals.com

Removal to federal court

NORTH CAROLINA LAWYERS WEEKLY I August 29, 20226 / NEWS in contested proceedings before the Opposition Division of the European Patent Office. Bill Killough is a senior fel low with the Litigation Counsel of America, is rated AV Preeminent by Martindale Hubbell, and listed in The Best Lawyers in America (2015 Charleston, SC Corporate Lawyer of the Year), South Carolina Super Lawyers and Charleston Business Magazine as one of its Legal Elite, the release stated. He and his cocounsel Lip Lipscomb both previous ly served as adjunct professors of the patent law course at the University of South Carolina School of Law. “Lip and I are excited to be work ing with fellow patent attorneys who know and understand the highly technical nature of an intel lectual property law practice. Both Doug and Seann are highly regard ed intellectual property attorneys. Having them available to assist in working through particularly chal lenging matters is a huge asset to our clients and we are thrilled to be a part of their team,” Bill Killough said in the release. Lipscomb is the author of the semi nal 11-volume trea tise in the patent field, “Lipscomb’s Walker on Patents,” and “Lipscomb’s Patent Claims.” He has also testified as an expert witness in numerous pat ent cases. In 2015, the South Carolina Bar Foundation honored him as a member of the Nifty Fifty Class.

Considering whether the re moval of the case to federal court constituted a general appearance – a matter of first impression – he reached a similar conclusion.

Because the right of removal is governed by federal statute, the federal court determines if origi nal jurisdiction has been properly established by the defendant.

Importantly, Jackson noted, de fendants can remove a case to fed eral court by their own election un der the federal statute if the case could have been filed in federal court to begin with, which means that “state courts do not actually exercise any discretion or adjudi catory authority in determining whether a case is removed to fed eral court or not. Once a defendant files a notice of removal with the state court, all further proceedings take place in federal court.”

FAILURE / COA:

Lahey counsels clients in all aspects of intellectual property law and has extensive ex perience dealing with international and U.S. patent prosecution. In addition, he regularly works with matters including trademarks, copyrights, trade secrets, licensing of intellectual property rights, and rendering legal opinions on validity, infringement and enforceability of intellectual property rights, as well as litigation involving intellectual propertyLahey’srights.practice involves advis ing startups, middle market com panies, multinational corporations, universities, and individuals alike on various intellectual property pro tection and enforcement strategies. He has worked across a range of technologies and industries includ ing automotive, agriculture, biotech, composite technology, construction, education, manufacturing, medical, and others. With offices in Greenville and Charleston, and Brevard, N.C., Kim, Lahey & Killough Law Firm is devoted to helping clients estab lish, enforce, and leverage their intellectual property rights from the Upstate, to the Lowcountry to across the globe, the release stated. For more information, visit the firm website at kimandlahey.com. a motion to remand the action back to state court. The defendant sought a second extension of time (again due to the fact it had not been served), but in a hearing before the federal court, Blaylock disavowed any reliance on federal law and the motion to remand was granted. Blaylock mailed the complaint and summons to AKG’s litigation counsel on Aug. 5, 2020. The defen dant then filed a motion to dismiss, arguing that the court lacked per sonal jurisdiction as service had never been properly effectuated. The trial court granted the mo tion and Blaylock appealed. In an opinion authored by Judge Darren Jackson, the panel af firmed dismissal.

“We disagree with Plaintiff’s position that the filing of any mo tion or notice in court constitutes a waiver of service of process and consent to the court’s jurisdiction,” Jackson wrote. If a defendant makes a “general appearance,” the trial court has personal jurisdiction, even if ser vice of process was defective. Jack son was not persuaded that AKG’s filing for extensions of time consti tuted a general appearance, finding that it was expressly contradicted by N.C. Gen. Stat. § 1-75.7(1).

create new IP law firm

Greenville A former a computer program mer and software engineer, Kim assists clients with drafting, nego tiating, and reviewing license, as signment, independent contractor, and employment agreements as they pertain to intellec tual property and ownership. He has experience with ad vanced materials, consumer products, software develop ment, data privacy, data security, man ufacturing, medical devices, healthcare, sporting goods, boats, kayaks and paddleboards, re tail, Geographical Information Sys tems (GIS), books, music, product packaging, and dis tribution.

Kaufman & Canoles, which has of fices in Raleigh, N.C., has announced that Christopher L. McLean has been selected to chair the firm’s new ly established Sports & Entertain ment Team, according to a Kaufman & Canoles news relesae. The Sports & Entertainment Team members use their business law expertise to assist and provide counsel to athletes and entertainers throughout their careers and after, as they look to invest and grow their opportunities, brand, and earnings, the release stated. Our experienced professionals are dedicated to help ing athletes and entertainers build and maintain successful careers. Continuous change and growth in the sports and entertainment indus tries have necessitated specific legal needs for athletes, entertainers, and organizations, according to the relee. New technology and platforms con tinue to impact how sports, media, and entertainment are produced, distributed, and consumed. The lat est gadgets, delivery methods, and content genres bring with them new opportunities for building success ful brands as well as new hazards to avoid. The Kaufman & Canoles Sports & Entertainment team en sures their client’s financial interests and creative assets are protected. Members of the Kaufman & Canoles’ Sports & Entertainment team include Nicole J. Harrell, Jo seph E. Houchin, Stephen E. Noona, William M. Palmer, Ellis H. Pretlow, and Randy C. Sparks Jr.

Jackson disagreed. Absent valid service of process, a court does not acquire personal jurisdiction over the defendant, he explained.

“In order to constitute a gen eral appearance, ‘[t]he appearance must be for a purpose in the cause, not a collateral purpose,’” he said. “In cases where this Court has found a general appearance, typi cally, the lower court’s discretion was invoked by the moving party or the court’s authority was as sented to without objection.”

“Because Defendant was never properly served with service of process and did not generally ap pear before the trial court, the tri al court properly concluded that it did not have personal jurisdiction over Defendant and was thereby required to dismiss the action,” he wrote. “The trial court’s order is therefore affirmed. General appearance

Raleigh attorney Zebulon D. An derson of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, who represented the defendant, did not respond to a request for comment. Blaylock represented himself pro se. The 13-page decision is Blaylock v. AKG North America (Lawyers Weekly No. 011-113-22). The full text of the opinion is available on line at nclawyersweekly.com. Failure of service ends case join to

“The methods for proper service of process are established by Rule 4 of the North Carolina Rules of Civil Procedure,” he said. “A corpo ration may be served by mail or de livery to an officer, director, man aging agent, or authorized service agent.”Rule 4 must be “strictly en forced,” he added, and “actual no tice” cannot cure insufficient ser vice of Blaylockprocess.repeatedly admitted that AKG was not timely served, but claimed that AKG waived the jurisdictional argument by appear ing and filing motions in court, when it removed the case to feder al court and sought two extensions of time.

Blaylock argued that not only was personal jurisdiction present, AKG waived its contention that ju risdiction was lacking.

Continued from 1 ► ATTORNEYS / Attorneys

Doug Kim Ernest LipscombB. Seann Lahey B.C. Killough Firm selects chair for newly created division

“Therefore, a North Carolina trial court does not exercise any adjudicatory or discretionary pow er when presented with a notice of removal,” he wrote. “Consequent ly, filing such notice cannot con stitute a ‘general appearance’ by a defendant. Because we conclude that Defendant’s filing of a notice removal was not a general appear ance, we reject Plaintiff’s argu ment that service of process de fects were waived by Defendant.” Nor did Blaylock did not cure the defect in service by serving AKG’s litigation counsel, Jackson found. “[E]ven assuming Defendant’s litigation counsel was a proper party upon which to effectuate ser vice on the corporation, Plaintiff’s argument is fruitless,” he said. “Plaintiff’s second attempt to serve the original complaint to Defen dant’s counsel was well beyond the time allotted to serve process or seek an extension under Rule 4(d). Therefore, Plaintiff failed to serve Defendant and then subsequently failed to cure the defective service in a timely manner.”

Continued from 1 ►

The district court later granted summary judgment to First Data and dismissed Cowgill’s disability discrimination and failure to accom modate claims.

“Cowgill disclosed her disability and requested an accommodation on January 20, 2015 and — exactly three weeks later — on February 11, First Data placed Cowgill on an IAP after she used the FMLA leave granted to her,” he wrote. “That First Data eventually with drew the FWW does not erase the mark of discriminatory motive.”

In August 2015, Rowe informed Cowgill she was being put on a 90day IAP due to alleged call avoid ance and unprofessionalism during a call in the prior month. According to Cowgill, the an nouncement was made immediately after she requested to recertify her FMLA leave. Furthermore, she ar gued that First Data had deviated from its policy of reviewing ques tionable calls within two days. Despite the IAP requiring weekly performance coaching, Cowgill tes tified that Rowe only met with her once and that her advice was simply to “play pretty.” Next month, a customer com plained that Cowgill prematurely hungCowgillup. said she wasn’t aware of a problem with her equipment, and she greeted the caller three times, but she could only hear background voices. While hanging up, she heard a voice say “hello,” but she was un able to reconnect the call. Viewing the incident as a second act of call avoidance, Rowe asked to terminate Cowgill. In response, the HR director not ed Cowgill’s good performance re views, inquired about her mid-year 2015 evaluation and whether the allegations were “out of character” forTheher.director also pointed out that Cowgill received the FWW and IAP as her first level of discipline and didn’t understand what was motiv ing her decline in performance. Cow gill had received an “above-average” in her 2015 mid-year evaluation. Cowgill filed a charge of ADA discrimination with the Equal Em ployment Opportunity Commission. When that was dismissed, she filed in U.S. District Court in Maryland. In the complaint, Cowgill alleged disability discrimination and failure to accommodate under the ADA, as well as retaliation pursuant to the ADA and FMLA.

In January 2015, Cowgill re quested leave under the Family and Medical Leave Act, or FMLA, due to back pain from a car accident. Her physician said she needed a “re duced work schedule: 4 hour(s) per day; 3-5 days per week” for a month. First Data approved her for an “intermittent leave of absence,” and she was required to follow her “business unit’s call in procedures” and try to schedule doctor’s appoint ments during non-work hours. Eight months later, Cowgill re certified her request for FMLA leave but limited it to one to two days per month. Cowgill testified that she com plained to her supervisor, Dawn Rowe, who told her to request leave for physical therapy or flare ups as needed using their call-in system. However, Cowgill said that “schedule compliance” was part of First Data’s review system and the requests would count against her. According to Cowgill, First Data never actually provided a reason able accommodation because she wasn’t recertified for enough leave, although she couldn’t recall having been denied a request for intermit tent leave.

“For example, after engaging in call avoidance and being placed on a FWW, Comparator A was given spe cial coaching attention, including re assignment of her work location to sit next to two team leaders for support and assistance,” the judge pointed out. “Yet, in spite of its commitment to coach Cowgill, First Data failed to follow through and ultimately did not go to the same lengths as it did with Comparator A to shore up Cow gill’s purported deficiencies.” Gregory found evidence suggest ing that, “for those without a dis ability — something more than call avoidance is required for termina tion,” such as taking long breaks and missing days of work at the same time. “But Cowgill’s termination was prompted by call avoidance infrac tions alone — not anything more,” the judge Finally,noted.theHR director’s inquiry about Cowgill’s sudden “out of char acter” conduct provided an addition al layer of pretext, and it was “highly suspicious that Rowe failed to coach Cowgill,” he wrote. The matter returns to the district court.

MISCONDUCT ‘Single nugget of misconduct’ ►

Comparators Cowgill identified as compara tors two employees First Data cited during the EEOC process. But here, First Data argued they weren’t valid comparators because they didn’t re port to Cowgill’s supervisor. Gregory dismantled this argu ment, saying caselaw shows “plain tiffs do not need to share the same supervisor in every case, and that comparison point is not a bar to re lief in a case like this one, where the comparators are otherwise similar in ‘all relevant respects.’” There was plenty of evidence for a factfinder that Cowgill was treated differently.

NORTH CAROLINA LAWYERS WEEKLY I August 29, 2022 NEWS / 7 and debit card processing company. Cowgill handled calls about dis puted transactions and was expect ed to refrain from “call avoidance,” a broad set of prohibited behaviors, such as failing to or not promptly answering, and prematurely hang ingExceptup. for being placed on a 30day Improvement Action Plan, or IAP, in 2006, Cowgill “retained a spotless disciplinary record’ … and ‘she routinely received above-aver age performance reviews.’”

First Data moved to dismiss the retaliation claims under the FMLA as time-barred and for failure to exhaust remedies under the ADA, which the district court granted.

ADA discrimination

Because Cowgill was entitled to the benefit of all inferences, the judge found a genuine dispute if she was meeting First Data’s ex pectations. Gregory also noted that fact is sues existed regarding causation.

Cowgill complained about harass ment to Annette Wood, a human resources employee, who withdrew the warning. Wood told her she did so because Cowgill was “such a good rep,” but she never admitted the warning was a mistake. Wood also told her that “she needed to do what she had to do to ‘protect’ her job.”

The Fourth Circuit rejected First Data’s contention that Cow gill wasn’t meeting their legiti mate business expectations. “If an employer genuinely be lieved that one of its employees was performing poorly on metrics the employer perceives as important (as First Data claims here), it seems unlikely that it would rate the em ployee’s performance highly,” Greg ory wrote. “Yet that is what hap pened here. The record shows that Cowgill ‘routinely received aboveaverage performance reviews,’ and during her 2014 year-end and 2015 mid-year reviews, she received the highest rating possible — a ‘3.’”

Likewise, the judge continued, “Rowe placed Cowgill on an IAP immediately after Cowgill con firmed that she was requesting recertification of FMLA leave. The extremely short time gap between these two events raises an even stronger discriminatory infer ence….”

Finally, Wood’s statements to Cowgill about needing “to ‘protect’ her job” also revealed “a discrimi natory motive because it suggests that Cowgill’s job would remain unprotected if she allowed her dis ability to get the way of her work performance,” Gregory pointed out. Taken together, there is enough evidence “to create a jury ques tion regarding the causation prong of Cowgill’s prima facia disability discrimination claim.”

/

Continued from 1

The 4th U.S. Circuit Court of Appeals vacated the dismissal of an employee’s discrimination claim after finding enough evidence to send the claim of discrimination under the Americans with Disabilities Act to a jury. DepositPhotos

The warnings On Feb. 11, 2015, Cowgill felt too uncomfortable to keep working, so she called in and requested leave. Instead of granting leave, First Data issued a final written warning that she had more than 64 hours of un scheduled absences and that further requests may result in termination.

See Page 9 ►

In this civil forfeiture case, law en forcement found an intoxicated driver, with a history of both drug trafficking and asset forfeiture, crashing into a gas station early on a Sunday morn ing with tens of thousands of dollars in rubber-banded bills in a duffel bag in the trunk of his car, with vague and perhaps implausible explanations as to what he was doing with the cash or how he came into possession of that amount of money. A jury could believe claimants’ explanations for the prove nance of the cash; even if the jury dis believed claimants’ explanations, the jury might still not believe the cash came from drug trafficking. We reverse the district court’s grant of summary judgment for the government.

Prior Convictions

Ion Scans Ion scans of the cash produced a positive result for cocaine. Because ion scans can detect mere particles, extremely small amounts of a sub stance may trigger a positive result. Standing alone, then, the positive scan tells us little about when, where or why the cash contacted cocaine. As it stands, we cannot reasonably infer that the positive ion test suggests this cash was uniquely connected to drugs. This conclusion is bolstered by the government’s treatment of the RDX revealed on the scans. RDX is an ex plosive. But the government does not rely on the presence of explosive par ticles to suggest that McClellan traf ficked in explosives—an activity that we would expect to get the govern ment’s attention and might also per mit forfeiture. So, given our obliga tion to construe inferences in favor of Claimants, the ion scans cannot con nect this case with drug trafficking.

Marijuana

NORTH CAROLINA LAWYERS WEEKLY I August 29, 20228 / OPINION DIGESTS 92% (2019) INSPIRE THE PROFESSION. INNOVATE THE PRACTICE. IMPACT THE WORLD. � LawCareer@liberty.edu � (434) 592-6068 � /LibertyUniversityLawLiberty.edu/Law 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) Opinions Criminal Practice Civil Forfeiture – Alleged Drug Traf ficking Proceeds – Explanations for Cash

The government argues that Cali fornia medical marijuana cards in Claimants’ names – found in the crashed car – should create an infer ence that they engaged in marijuana trafficking. This inference arises, they contend, because marijuana dealers often use medical marijuana cards to buy marijuana in states where it is le gal and then bring it to other states for illegal sale. But California legalized even rec reational marijuana before Claim ants obtained the cards in 2017. And even if the cards are sometimes used by drug dealers as the government describes, the cards can also be used to buy marijuana for personal use. Other than these cards, the govern ment has presented no evidence of marijuana trafficking. Indeed, the marijuana blunt found in the car tends to suggest the person al use of marijuana that McClellan admitted to. The personal use of mar ijuana also does not establish a link to a broader drug-trafficking scheme that might involve the tens of thou sands of dollars seized here. Users of marijuana do not necessarily traffic in marijuana or cocaine. The cash here is only subject to for feiture if it was exchanged for drugs, traceable to drug dealings, or intend ed to be used to violate federal drug laws. 21 U.S.C. § 881(a)(6). And the ion scans tested positive for cocaine, not marijuana. A reasonable juror could look at all this evidence and come away unconvinced that Claim ants were marijuana dealers.

–Failed Title Transfer – Drunk Driver When the defendant-dealership sold a 1995 Camaro to a customer, the dealership failed to successfully trans fer title because it had misplaced its copy of the customer’s driver’s license. Since the dealership made an uncon tradicted forecast of evidence that (1) the dealership relinquished authority and control over the Camaro when it completed the sale and released the Camaro to the customer and (2) the dealership had no other agency rela tionship with the customer’s relative – who caused a fatal accident while driving the Camaro two months later – plaintiff’s agency theory of liability fails.

Dissent (Wilkinson, J.) This case reads like a laundry list of the factors that courts use to determine that assets are tied to drug trafficking. Any reasonable juror would conclude that the cash was more likely than not a product of drug trafficking, so the district court properly granted summary judgment to the government. United States v. McClellan (Law yers Weekly No. 001-101-22, 32 pp.) (Julius Richardson, J.) (Harvie Wilkinson, J., dissenting) No. 202251. Appealed from USDC at Green ville, S.C. (Henry Herlong, S.J.) Adri anne Turner for appellants; Carrie Fisher Sherard and Rhett Dehart for appellee; Robert Everett Johnson and Caroline Grace Brothers for amicus curiae. 4th Cir.

Cash Source Claimants explained that the cash in question came from claimant Sil ver’s retail business, Labelz Style House. Claimants’ tax returns show significantly less income from the business than could explain the cash found in McClellan’s car. Although Claimants originally claimed that the cash was “profit” from the business, they later explained that they meant the cash was working capital. When considered alongside Mc Clellan’s inheritance of $110,000, a mortgage-free house and an auto in surance settlement of $25,000, a jury could conclude that the cash was from Labelz rather than drug trafficking. In any event, disproving that the cash was Labelz’s funds does not prove that the cash is drug proceeds. When a defendant makes a false ex culpatory statement, that statement is evidence of the defendant’s con sciousness of guilt. But it is the jury’s role to determine what inferences to draw from someone’s false exculpa tory statements. A reasonable juror could find that Claimants lied about the source of the cash for some other reason—perhaps to avoid embarrassment or to conceal other illicit activity that would not give rise to forfeiture—so a genuine dispute of material fact persists even in the face of a false exculpatory state ment. While it may be dubious to drive around with a large amount of cash in one’s car, it does not create an ines capable inference of criminal activity. Not using a bank does not necessarily make one a criminal. Even if a jury rejects Claimants’ assertion that the cash was Labelz’s funds, and even if Claimants have no other explana tion, the jury could still conclude that, given the dearth of direct evidence of drug dealing, the cash does not consti tute drug Reversedproceeds.andremanded.

The government argues that claim ant McClellan’s prior drug charges and the cash he forfeited in 2013 are evidence that he was likely deal ing drugs when the cash was seized in 2019. In doing so, the government asks us to make the kind of forbidden propensity inference that the Fed eral Rules of Evidence prohibit. The fact that a defendant may have been involved in drug activity in the past does not in and of itself provide suf ficient nexus to the charged conduct where the prior activity is not related in time, manner, place or pattern of conduct. The government has not attempt ed to offer a “proper purpose” for con sidering this evidence at this stage. Because evidence, which is inadmis sible at trial, cannot be considered on a motion for summary judgment, we cannot rely on McClellan’s past con victions.

NegligentTort/NegligenceEntrustment–Agency

G.S. § 20-71.1.Proof of ownership under § 20-71.1 is a rule of evidence. The plaintiff con tinues to carry the burden of proving an agency relationship between the driver and owner at the time of the driver’sWhennegligence.adefendant offers evidence contradicting this statutory agency principle, the statutory presumption is not weighed against the defen dant’s evidence by the trier of fact. Instead, the plaintiff must present affirmative evidence supporting the agency theory. At the summary judgment stage, when a defendant forecasts evidence that rebuts the agency relationship described by § 20-71.1, the plaintiff must forecast at least some evidence, beyond the statute itself, that creates a genuine issue of material fact on thisHere,question.thetrial court properly en tered summary judgment in favor of defendants. On 8 January 2015, the dealership and its customer signed various documents collectively repre senting the sale and intended trans fer of ownership of the Camaro from the dealership to the customer. The dealership and its defendant-owner also submitted an affidavit describing the sale of the Camaro and testifying that Brooks had no connection to the dealership and was not an employee or agent of the dealership at any time. This undisputed evidence demon strates, as a matter of law, that there was no agency relationship between the dealership and Brooks. Although the formal transfer of title to the Ca maro did not occur because the dealer ship misplaced its copy of its custom er’s driver’s license—and thus was unable to complete the title transfer through the DMV—the dealership re linquished authority and control over the Camaro when it completed the sale and released the Camaro to its customer. Accordingly, the trial court properly entered summary judgment in favor of the dealership and its own er on all claims that depended on the agency theory of liability.

— Joan H. Feldman, Editor/Publisher, Attorney at Work

See Page 10 ► Continued from 8 ►

Civil Practice Service of Process – Personal Jurisdic tion – First Impression – Removal to Federal Court – General Appearance

“ Practical. Readable. Motivating. “Designing a Succession Plan” is an invaluable resource and planning guide. Solo and small firm partners will be especially interested in the sections on valuing and selling a law firm. All lawyers will appreciate the practical, expert advice outlining the options that await lawyers in this next phase.

NORTH CAROLINA LAWYERS WEEKLY I August 29, 2022 OPINION DIGESTS / 9

WWW.DESIGNINGASUCCESSIONPLAN.COM HELPING LEGAL PROFESSIONALS EVOLVE

Negligent Entrustment

The insider’s guide to selling a law practice, transferring ownership, and designing a great Life After Law, written by two of the top authorities in succession planning.

We affirm summary judgment for the dealership and its owner. Facts The dealership and the customer completed all the customary paper work for the sale of a vehicle. There after, the customer’s relative, Daryl Brooks, arrived at the dealership and drove the Camaro off the lot. When the dealership sent its titletransfer paperwork to the Division of Motor Vehicles, DMV rejected the transfer because the paperwork did not include a copy of the customer’s driver’s license. The dealership had misplaced its copy. The dealership made eight unsuccessful attempts to reach the customer via telephone over the next two months. Then, Brooks drove the Camaro drunk and caused the accident that killed plaintiff’s decedent.

Moreover, there is no evidence in the record that the dealership entrusted Brooks with the use of the Camaro at the time of the collision – more than two months after the dealership re linquished authority and control over the vehicle. Affirmed. Biggs v. Brooks (Lawyers Weekly No. 011-112-22, 12 pp.) (Richard Di etz, J.) Appealed from Durham Coun ty Superior Court (Osmond Smith, J.) Finesse Couch and Destine Couch for plaintiff; Stephanie Anderson for de fendants. 2022-NCCOA-548

Agency Proof of ownership of a motor ve hicle at the time of a collision is prima facie evidence that the vehicle was be ing operated with the authority, con sent and knowledge of the owner and being operated by and under the con trol of a person for whose conduct the owner was legally responsible.

WWW.LAWYERSMUTUALCONSULTING.COM 1.800.662.8843 Learn

Although it was Brooks who drove the Camaro off the lot on 8 January 2015, this occurred after the dealer ship had already relinquished au thority and control over the Camaro to its customer (Brooks’ relative).

On an issue of first impression, the court decides that, when a defendant – who has not been served with pro cess – removes a case to federal court, this does not constitute a general ap pearance by the defendant. We affirm the trial court’s grant of defendant’s motion to dismiss.

Background Plaintiff filed suit against defen dant in state court but failed to serve defendant as prescribed by N.C. R. Civ. P. 4. Defendant twice moved for extensions of time to file a response and also removed the case to federal court on the basis of a federal ques tion. When plaintiff disavowed any federal claim, the case was remanded to state Thereafter,court. plaintiff sent the summons and complaint to defense counsel. Plaintiff also amended his complaint and sent the amended com plaint to defense counsel. Defendant moved to dismiss for lack of personal jurisdiction (among other reasons), and the trial court granted the mo tion. Discussion Absent valid service of process, a court does not acquire personal juris diction over the defendant. Plaintiff takes the position that defendant, who was unserved and therefore not required to respond to the suit, waived this jurisdictional argument by appearing and filing motions in court.Under G.S. § 1-75.7(1), if a defen dant makes a general appearance, the trial court has personal jurisdiction even if service of process was defec tive. Plaintiff’s argument that mov ing for extensions of time constitutes a general appearance is expressly contradicted by the statute. There fore, whether defendant’s removal of the case to federal court constituted a general appearance is primarily at issue. more and see additional resources at AND THRIVE

As plaintiff testified during his deposition, he relied primarily on “put[ting] two and two together” in support of his contention that one or more of the parties sexually involved with Alison prior to their separation was actually defendant. Evidence supporting this identification in cludes phone and Facebook contact between Alison and defendant dur ing her and plaintiff’s marriage, the existence of their friendship at work, and the fact that they openly had a romantic and sexual relationship less than four months from the separation date of Alison and plaintiff’s more than decade-long marriage.

EmergencySchoolsTort/Negligence&SchoolBoards–Sudden–SchoolBusCollision

Sudden Emergency Our courts have defined an emer gency situation as that which compels one to act instantly to avoid a collision or injury. Plaintiffs have not challenged the Commission’s findings of fact, so those findings are binding. The Com mission found, “When it became ap parent that [the impaired teenage driver] was slumped over the steering wheel and [he] would not return his vehicle to the proper lane, [the school bus driver] had less than five seconds to choose to either (1) steer right and risk overturning the school bus in the ditch with her student passenger, or (2) steer left into the empty lane.” Our court has held that reacting in less than five seconds qualifies at act ing “instantly” to avoid injury for the purposes of the sudden emergency doctrine. Consequently, the Commis sion properly concluded the emergen cy, created by the teenager driving in the wrong lane of travel, compelled the bus driver to act instantly, in less than five seconds, to avoid a head-on collision.Furthermore, the school bus driv er did not contribute to or cause the sudden emergency. When she steered the bus to the left, its front tire went slightly over the nearest double yel low line but not across the second yel low line. Moreover, the Commission found “that even if [the] school bus crossed the double yellow line prior to the collision, doing so was reason able given that [the bus driver] was attempting to avoid [the teenager’s]

At issue here is whether plaintiff made a prima facie showing of the thirdMaliceelement.isconclusively presumed by a showing that the defendant en gaged in sexual intercourse with the plaintiff’s spouse. Here, the evidence consists, in primary part, of a se ries of text messages indicating that plaintiff’s then-wife, Alison, engaged in sexual intercourse with someone denominated on her phone as “Bes tie,” an admission by Alison that she engaged in sexual acts with “Bestie” and that “Bestie” was a man named “Dustin,” and a separate admission by Alison indicating she had engaged in sexual intercourse with an un named person. At issue is whether plaintiff provided sufficient evidence exists that any paramour referenced – “Bestie,” “Dustin” or the unnamed paramour – was actually defendant.

Rodri guez v. Lemus, 257 N.C. App. 493, 810 S.E.2d 1, disc. rev. denied, 371 N.C. 447, 817 S.E.2d 201 (2018).

senting) Appealed from Wake Coun ty Superior Court (Keith Gregory, J.) John Szymankiewicz for plain tiff; Shannon Poore for defendant. 2022-NCCOA-547

Beavers v. McMican (Lawyers Weekly No. 011-114-22, 55 pp.) (Hunter Murphy, J.) (Chris Dillon, J., concurring) (Darren Jackson, J., dis

Dissent (Jackson, J.) Plaintiff has utterly failed to produce one single genuine issue of material fact as to the iden tity of his wife’s paramour. Addition ally, on a more fundamental level, the torts of alienation of affection and criminal conversation have been out dated for over a hundred years and it is past time that these torts be abol ished.First, the concept of women as property inherent in the heartbalm torts is wrong and inconsistent with modern law. If, as the law now recog nizes, a person is not the property of another person—nor is their love or their affection—then that person can not be compensated for the loss of this property because it was not property in the first Althoughplace.the heartbalm torts are intended to protect marriage and family, neither marriages nor fami lies are protected by them. No cred ible empirical evidence suggesting otherwise exists. In any event, the post-separation evidence plaintiff produced about the relationship between his wife and de fendant that he argues corroborates the pre-separation evidence of mari tal misconduct gives rise to nothing more than conjecture.

The Rodriguez principle was artic ulated in response to the question of whether factfinders could consider ev idence of post-separation at all after our General Assembly enacted G.S. § 52-13, which provides, “No act of [a] defendant shall give rise to a cause of action for alienation of affection or criminal conversation that occurs after the plaintiff and the plaintiff’s spouse physically separate with the intent of either the plaintiff or plain tiff’s spouse that the physical separa tion remain permanent.” Section 52-13 prevents defendants in cases involving criminal conversa tion and alienation of affection from being held liable for acts taking place after two spouses have separated, and Rodriguez effectuates that policy by ensuring that, if a factfinder consid ers evidence of post-separation con duct, it does so only insofar as it con textualizes pre-separation conduct.

Alienation of Affection In order to establish a claim for alienation of affection, a plaintiff must show that (1) there was a mar riage with love and affection existing between the plaintiff and his or her spouse, (2) that love and affection was alienated and (3) the malicious acts of the defendant produced the loss of that love and affection.

Once she realized that the car heading straight towards her school bus would not return to its proper lane, a school bus driver had less than five seconds to decide how to react. As such, the defendant-school board was entitled to the protection of the sud den emergency doctrine. We affirm the Industrial Commis sion’s denial of plaintiffs’ claims.

The parties do not point to any binding North Carolina precedent, nor have we found any, addressing whether removal to federal court is a general appearance. This is therefore an issue of first impression. Under 28 U.S.C. § 1441(a), defen dants can remove a case to federal court by their own election, if the case could have been filed in federal court to begin with; therefore, state courts do not actually exercise any discre tion or adjudicatory authority in de termining whether or not a case is removed to federal court. Once a de fendant files a notice of removal with the state court, all further proceed ings take place in federal court. Therefore, a North Carolina trial court does not exercise any adjudi catory or discretionary power when presented with a notice of removal. Consequently, filing such notice can not constitute a “general appearance” by a defendant. Because we conclude that defendant’s filing of a notice re moval was not a general appearance, we reject plaintiff’s argument that service of process defects were waived by Afterdefendant.thecase was remanded to state court, plaintiff had a third-party mail the summons and complaint to defendant’s litigation counsel on 5 Au gust 2020, nearly eight months after the complaint was filed. Thereafter, plaintiff amended his complaint on 12 August 2020 and served the amended complaint upon defendant’s litigation counsel on or around 12 August 2020. Plaintiff does not cite any binding authority to support his argument that defendant’s litigation counsel was authorized to accept service on behalf of defendant. Nonetheless, even assuming defendant’s litiga tion counsel was a proper party upon which to effectuate service on the cor poration, plaintiff’s argument is fruit less.Plaintiff’s attempt to serve the original complaint to defendant’s counsel was well beyond the time al lotted to serve process or seek an ex tension under Rule 4(d). Therefore, plaintiff failed to serve defendant and then subsequently failed to cure the defective service in a timely manner. Affirmed. Blaylock v. AKG North America (Lawyers Weekly No. 011-113-22, 13 pp.) (Darren Jackson, J.) Appealed from Alamance County Superior Court (John Dunlow, J.) Gary Blay lock, pro se; Zebulon Anderson and David Ortiz for defendant. 2022-NC COA-549

Criminal Conversation To withstand a defendant’s motion for summary judgment on a claim of criminal conversation, a plaintiff must present evidence demonstrating (1) marriage between the spouses and (2) sexual intercourse between the defendant and the plaintiff’s spouse during the marriage. Here, Alison’s admission that she had engaged in sexual intercourse with a third party, together with her friendship, contacts, and future ro mantic and sexual relationship with defendant, would allow a jury to find defendant had engaged in sexual in tercourse with Alison prior to her and plaintiff’s separation. Accordingly, the trial court also erred in granting summary judgment for defendant’s with respect to plaintiff’s claim for criminal conversation. Reversed and remanded.

Concurrence (Dillon, J.) I write separately to ad dress our dissenting colleague’s con cern that North Carolina still recog nizes claims for alienation of affection and criminal conversation. Despite the misogynistic origins of heartbalm torts – which were origi nally only available to married men –our usual response to such injustices is to extend these rights to be enjoyed by more groups, not by eliminating them. We have long recognized claims for loss of consortium and tortious in terference with contractual relations, and I am not aware of any movement to take away the right to seek dam ages for these civil wrongs. How much more should we continue to recognize the right of individuals to seek dam ages from those who out of malice interfere with one of the most impor tant relationships in society?

Facts An 18-year-old driver – impaired by marijuana and Xanax – drove in the wrong lane, straight toward a school bus. When the bus driver first saw the teenager’s car, she slowed the bus and honked the bus’s horn. She considered moving the bus to the right, but the shoulder of the road sloped, and she feared the bus would overturn.Thenthe bus driver saw that teen ager appeared to be reaching down, looking at the floor of his car. In the few seconds remaining before the col lision, the bus driver moved the bus towards the empty left lane – where the teenager’s car should have been. However, the right front of the teen ager’s car still collided with the right front of the school bus. One of the teenager’s passengers was killed and another was injured. Their estate and guardian, respec tively, filed claims against the school board under the Tort Claims Act. The Industrial Commission denied their claims.

of Affection & Criminal Conversation –Post-Separation Conduct – Identity Evidence Although post-separation conduct cannot form the basis for claims of alienation of affection or criminal con versation, evidence of post-separation conduct can be used to prove the iden tity of a spouse’s pre-separation par amour. We reverse summary judgment for defendant. When it ruled on defendant’s sum mary judgment motion, the trial court did not consider the parties’ ex-wives’ depositions, which were not certified until after the summary judgment hearing. Consequently, we do not consider the ex-wives’ depositions on appeal.

In cases involving alienation of af fection, “evidence of post-separation conduct may be used to corroborate evidence of pre-separation conduct and can support claims for alienation of affection and criminal conversation, so long as the evidence of pre-separa tion conduct is sufficient to give rise to more than mere conjecture.

The evidence of a friendship and frequent contact between Alison and defendant that existed prior to the re lationship, as well as their romantic and sexual relationship after separa tion, while not sufficient for a jury to conclude the final element of alien ation of affection had been met on its own, could convince a jury that defen dant was “Bestie”—or, if different, the person with whom she admitted she had engaged in sexual intercourse. Accordingly, the trial court erred in granting summary judgment for de fendant with respect to plaintiff’s claim for alienation of affection.

NORTH CAROLINA LAWYERS WEEKLY I August 29, 202210 / OPINION DIGESTS

DomesticTort/NegligenceRelations–Alienation

See Page 11 ► Continued from 9 ►

Constitutional Challenge In the alternative, plaintiff argues that § 1-17(c), as applied, violates his equal protection rights by violat ing N.C. Const. art. I, § 18, the Open CourtsHowever,provision.persons with malprac tice claims are not a suspect class, and a classification so as to shorten the statute of limitations as to them does not affect a fundamental inter est. This classification is not inher ently suspect. Hohn v. Slate, 48 N.C. App. 624, 269 S.E.2d 307 (1980). Plaintiff’s as-applied challenge is subject to rational-basis review. Plaintiff offers no argument and cites no authority to demonstrate that § 1-17(c) does not pass rational-basis review. Reversed. Dissent (Hampson, J.) I would deny the pe tition for writ of certiorari, obviating the need for this court to wade into a question of first impression and to reach – in the first instance – a consti tutional question we might otherwise judiciously avoid. I also dissent on the merits. We must read the pertinent stat utes – G.S. §§ 1-15(c) and 1-17 – to gether. Section 1-15(c) sets a three-year statute of limitations on professional malpractice actions “[e]xcept where otherwise provided by statute. . . .” Section 1-17 is one such excep tion. Subsection 1-17(a) gives a minor plaintiff until the age of 21 to bring a claim based on a general tort. How ever, § 1-17(b) only gives a minor plaintiff until the age of 19 to bring an action for professional malpractice – including medical malpractice – “[n] otwithstanding the provisions of sub section (a). . . .”

Statute of Limitations G.S. § 1-15(c) sets a three-year statute of limitations for profession al malpractice actions. For a minor plaintiff, G.S. § 1-17(b) extends the statute of limitations on professional malpractice actions until the minor reaches the full age of 19, “except as otherwise provided in subsection (c) of this section. . . .” G.S. § 1-17(c) applies only to med ical malpractice actions. It provides in pertinent part: “Notwithstanding the provisions of subsection (a) and (b) of this section, an action on be half of a minor for injuries alleged to have resulted from [medical] malpractice . . . shall be commenced within the limitations of time speci fied in G.S. 1-15(c), except as follows: (1) If the time limitations specified in G.S. 1-15(c) expire before the mi nor attains the full age of 10 years, the action may be brought any time before the minor attains the full age of 10 Thus,years.”under § 1-17(c), a plaintiff who is older than age seven when his medical malpractice cause of ac tion accrued does not receive any ex tension to the statute of limitations. Plaintiff was over the age of ten at the time of accrual of his claim. Thus, the three-year statute of limitations that ordinarily governs medical malpractice actions applies. Plaintiff’s lawsuit is untimely be cause his medical malpractice ac tion accrued when he was thirteen years old and he filed suit five years later.

G.S.§ 1-50(a)5.c. Neither party cites a North Caro lina case which provides a clear guide on how to interpret the definition of “substantial completion” for a proj ect that has several components. The plain language of the statute suggests that the date of substantial comple tion occurs with respect to a particu lar contractor when the part of the im provement the contractor was hired to provide services for has reached “a degree of completion” where “the owner can use the same for the pur pose for which it was intended.” Plaintiff alleges that it hired En gineer to provide services “for the Project.” There is no allegation that Engineer was hired just to perform services related to the retaining wall. Plaintiff did allege that it entered into a “certificate of substantial com pletion” with the contractor and the architect on 15 May 2013, but there is no allegation that Engineer was a party to that “certificate,” much less that by signing the certificate plain tiff was agreeing that the project was substantially complete as of 15 May 2013. Accordingly, the trial court erred in granting Engineer’s motion to dismiss.Subcontractor was hired by the project architect. There is no allega tion that Subcontractor was hired to work on the retaining wall alone, nor was Subcontractor a party to the certificate of substantial completion. Accordingly, the trial court erred in granting Subcontractor’s motion to dismiss. Reversed in part, vacated in part, dismissed in part and remanded.

MedicalTort/NegligenceMalpractice–CivilPractice

G.S. § 1-50(a)(5) provides in part, “No action to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property shall be brought more than six years from the later of [1] the specific last act or omission of the de fendant giving rise to the cause of ac tion or [2] substantial completion of the improvement . . . or specified area or portion thereof (in accordance with the contract . . . .).” At a summary judgment hearing, a plaintiff would have the burden to provide evidence that she had filed her claim within the applicable stat ute of repose. However, a plaintiff has no burden at the pleading stage to al lege facts showing that the complaint was filed within the applicable stat ute of repose. Here, plaintiff did not allege any date when substantial completion occurred. Therefore, a Rule 12(b)(6) dismissal was inappropriate. “Sub stantial completion” is defined as “that degree of completion of a proj ect, improvement or specified area or portion thereof (in accordance with the contract . . . ) upon attainment of which the owner can use the same for the purpose for which it was intend ed. The date of substantial completion may be established by written agree ment.”

NORTH CAROLINA LAWYERS WEEKLY I August 29, 2022 OPINION DIGESTS / 11 vehicle.” The Commission’s findings support its conclusion that the bus driver’s ac tions are insulated from liability un der the doctrine of sudden emergency. Affirmed. Estate of Johnson v. Guilford County Board of Education (Law yers Weekly No. 011-115-22, 13 pp.) (Lucy Inman, J.) Appealed from the Industrial Commission. Torin Fury and Edward Yount for plaintiffs; Carl Newman for defendant. 2022-NC COA-553.

Gaston County Board of Education v. Shelco, LLC (Lawyers Weekly No. 011-117-22, 13 pp.) (Chris Dillon, J.) Appealed from Gaston County Supe rior Court (Athena Brooks, J.) Patri cia Ryan Robinson, Rod Malone and Colin Shive for plaintiff; Gerald Stein, Tyler Stull, Duane Jones, Collier Marsh, Daniel Knight, Sandra Mit terling Schilder, Amie Sivon, Nancy Litwak and Carl Burchette for defen dants. 2022-NCCOA-550 Domestic Relations Parent & Child – Termination of Pa rental Rights – Insufficient Evidence

See Page 12 ► Continued from 10 ►

–Statute of Limitations – Minor Patient – First Impression

Because plaintiff was 13 years old – i.e., older than seven – when he un derwent the appendectomy at issue in this medical malpractice action, he was required to file suit within three years of his surgery. Since he waited until he was 18 years old to file suit, his claim is time-barred un der G.S. § 1-17(c). We reverse the trial court’s denial of defendants’ motion to dismiss. In 2015, when plaintiff was 13, the defendant-doctor performed an appendectomy on plaintiff. Plaintiff subsequently developed an infection and had to undergo two more surgi cal operations. In 2020, after plain tiff turned 18, he filed this medical malpractice action. The trial court denied defendants’ motion to dismiss. Although the trial court’s order is interlocutory, it involves a question of law. Because interlocutory re view of a dispositive question of law would be more efficient than defer ring the issue until final judgment at the trial level, we grant defen dants’ petition for writ of certiorari.

Finally, § 1-17(c) is an exception to the general rule applicable to minors injured by professional negligence set forth in § 1-17(b). Subsection (c) pro vides in pertinent part that “an action on behalf of a minor for injuries al leged to have resulted from [medical] malpractice . . . shall be commenced within the limitations of time speci fied in G.S. 1-15(c), except as follows: (1) If the time limitations specified in G.S. 1-15(c) expire before the minor attains the full age of 10 years, the ac tion may be brought any time before the minor attains the full age of 10 years.”

Reading the statutes together, § 1-17(b) remains generally applicable unless one of the exceptions under § 1-17(c) applies. By its terms, and using language similar to § 1– 17(b), § 1–17(c)(1) pro vides that (A) in medical malpractice cases involving a minor § 1–15(c) re mains generally applicable, except when (B) the general statute of limi tations under § 1–15(c) would begin to run before the minor attains the age of seven, in which case the expiration of the statute of limitations is delayed until the minor attains the age of ten. Thus, § 1–17(c)(1) targets only those very young children who are injured by alleged medical negligence requir ing them to bring suit by age ten. Tead together, these statutes oper ate to provide a minor injured by al leged medical negligence until the age of 19 to bring suit, unless the action accrues before the minor turns seven, in which case, the minor has until age ten to bring suit. A common-sense plain reading of these statutes re flects a legislative intent to preserve the tolling provisions for minors but to limit the tolling for claims occur ring when the minor is very young to balance against stale claims and loss of evidence prejudicing medical defen dants.Finally, it is inappropriate to reach the merits of plaintiff’s as-applied challenge prior to the development of the facts applicable to plaintiff’s claim. I would affirm. Morris v. Rodeberg (Lawyers Weekly No. 011-116-22, 25 pp.) (Fred Gore, J.) (Toby Hampson, J., dissent ing) Appealed from Pitt County Su perior Court (Carlton Cole, J.) Steven Bader, Colleen Shea, Alex Hagan, Michelle Liguori and Robert Barry for defendants; Ryan Oxendine, James Barnes and Spencer Fritts for plain tiff; David Hawisher for amicus cur iae. 2022-NCCOA-555 Civil Practice Statute of Repose – Pleadings –Construction Project – ‘Substantial Completion’ Where the complaint does not al lege facts showing that it was filed after the expiration of the six-year statute of repose, dismissal under N.C. R. Civ. P. 12(b)(6) was improper. The 2020 complaint is based on an al legedly defective retaining wall – just part of a construction project – and the wall completed in 2012, but the complaint does not allege any date when “substantial completion” oc curred. We reverse the trial court’s grant of the motion to dismiss filed by the de fendant-Engineer and the defendantSubcontractor. We dismiss the appeal of the defendants whose motions to dismiss were denied. We vacate the trial court’s denial of plaintiff’s mo tion to amend its complaint.

While the respondent-Father did not follow his case plan perfectly, his progress was nevertheless reason able. We reverse the termination of Fa ther’s parental rights. Although the trial court found that Father never “sought paternity” of baby “Alison,” the record shows that the mother was unsure which of two men was Alison’s father and she did not have a current telephone number for Father. After DSS was finally able to contact him in October 2019, Fa ther obtained a DNA test in Novem ber 2019. Although Father did not originally have steady employment or housing, did not have a driver’s license, and had a few brushes with the law, he found both steady employment and housing, he worked through the ad ministrative process to get his driv er’s license restored, and he started visiting Alison regularly. Father also made some support payments, and he ended a romantic relationship be cause he thought his girlfriend did not support his parenting of Alison. Father challenges the trial court’s sub-finding of fact 10(ll) as mislead ing. It states that “[t]he [trial court] finds that [Father’s] progress has not been adequate to meet the needs standing in his way to provide proper and adequate care for [Allison].” Fa ther also contests sub-finding of fact 10(pp), which states, “[Father] has failed to comply with all but the most minimal requirements of his family service case plan. The limited prog ress made is not reasonable.” Father argues that this finding is vague, does not provide dates, and does not refer

Though the trial court’s findings of fact are unartfully drafted, this is not a close case. Furthermore, the fact that the trial court’s oral rendition and written order do not precisely mirror each other is of no moment. The written order sufficiently, al beit minimally, supports the trial court’s conclusion that mother’s pa rental rights with respect to H.B. should be terminated pursuant to subsection G.S. § 7B-1111(a)(2). Despite the guardian ad litem’s (GAL’s) testimony that there was a bond between H.B. and mother, the trial court’s written findings of fact stated that there was no such bond. The trial court provided more context to this finding during its oral rendi tion, stating: “The Court finds that there is not a significant relationship with the child and parent because the parent has not cared for the child, has failed to visit consistently with the child during the time that the child was in the care and legal custody of [DSS].” Not only is this reasoning supported by the record, the GAL re port, and other evidence, but it is also not inconsistent with how our appel late courts have accepted a finding of a lack of bond between a respondentparent and child. The record shows that the trial court sufficiently considered and made findings of fact, bolstered by the GAL report, regarding the multiple, required factors set out by G.S. § 7B1110, namely: H.B.’s age, her high likelihood of adoption, her lack of bond with mother, that termination of mother’s parental rights should aid in the accomplishment of H.B.’s adop tion, and the good relationship be tween H.B. and her prospective adop tive parents. Accordingly, we hold the trial court did not abuse its discretion in determining that termination was in H.B.’s best interest. Affirmed. Dissent (Wood, J.)

The trial court did not make a find ing regarding the amount of income that the respondent-father earned during the six months before the peti tion to terminate his parental rights was filed. Nevertheless, there was evidence to support the trial court’s finding that defendant was employed yet paid nothing in child support dur ing that six-month period. Evidence of a failure to pay any portion of the children’s cost of care while earning some amount of income is sufficient to conclude that a parent did not pay a reasonable portion of the cost of care. We affirm the termination of re spondent’s parental rights. It is true that respondent was incarcerated during part of the sixmonth period and that he failed to report a specific amount of income. However, the trial court was not re quired to find that respondent worked throughout the entire six-month pe riod. The trial court’s finding that re spondent had the ability to pay some thing toward the cost of care for his children within the six-month period but paid nothing was sufficient to ter minate his parental rights.

Even though the trial court’s find ings are disordered and bare-bones, they are sufficient to support the trial court’s conclusion that the respon dent-mother had failed to make suf ficient progress on her case plan dur ing the two years that her daughter, H.B., was in DSS custody.

When we consider the many ways Father complied with his case plan in order to correct the conditions that led to Allison’s placement into custo dy, together with the findings of the trial court we have overruled, we hold that the remaining findings of fact do not support the conclusion of law that Father has failed to make reasonable progress in correcting the conditions which led to Allison’s removal and do not warrant the termination of his pa rentalReversed.rights.

NORTH CAROLINA LAWYERS WEEKLY I August 29, 202212 / OPINION DIGESTS ence the progress Father made. We agree.Based on Father’s progress in seek ing help and addressing DSS’s con cerns regarding his unsubstantiated mental health and substance abuse issues and his sufficient progress in addressing the other elements of his case plan, we hold the trial court’s sub-findings of fact 10(ll) and 10(pp) are not supported by clear and con vincing evidence. To the extent that sub-finding of fact 10(nn) states that Father has not attended mental health or substance abuse therapy as recommended by his assessments, the sub-finding is unsupported by clear and convincing evidence. Although the trial court correctly found that substance abuse issues led to Alison’s removal, those were the substance abuse issues of Alison’s mother, who had at the time identi fied a different man as Alison’s fa ther. And there is no evidence in the record to support the trial court’s find ing that Father previously had denied having any kind of relationship with theFinally,mother.Father contends the tri al court erred by concluding that grounds existed to terminate his pa rental rights based upon his willfully leaving Allison in a placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress “under the circumstances has been made in correcting those conditions which led to the removal” of Allison pursuant to G.S. § 7B-1111(a)(2). We agree.Looking at the requirements of Father’s family service case plan, the evidence tends to show that Father made sufficient progress in meeting each element. Father completed his parenting classes and pursued even more opportunities to improve his parenting skills. Father’s case plan required visita tions with Allison. To be able to do so, Father moved across the state to be closer to his daughter. Father’s case worker testified that while Father missed some visits early on, his vis its had become consistent over time. Father talks, plays, brings gifts, and acts appropriately with his daughter. Father’s case plan also required him to obtain stable employment and suitable housing. The record evidence shows Father obtained full-time em ployment in his field of construction several months before the termina tion hearing. The record also demon strates Father obtained appropriate and permanent housing in February 2021, signed a one-year lease, and had consistently paid his monthly rent.Father was also required to obtain reliable transportation. The record shows Father took the necessary steps and paid all fees to have his driver’s license reinstated in March 2021. Father purchased a vehicle in May 2021. Concerning the substance abuse and mental health requirements in Father’s case plan, Father substance abuse issues were addressed both in his case plan and his probation. Father was diagnosed with border line personality disorder, and it was recommended that he engage in indi vidual therapy and DBT group ther apy. It is true that Father attended only one therapy session and signed up for three group sessions during the month of April 2021 but did not attend any sessions. However, Father has taken steps to register for further DBT therapy which will work with hisAschedule.parent’s failure to fully satisfy all elements of the case plan goals is not the equivalent of a lack of reason able progress. While Father has not met every required element in his case plan, certainly, perfection is not required to reach the “reasonable” standard.

We affirm the termination of moth er’s parental rights. The evidence before the trial court, taken together, showed exactly what the trial court found, and more: that mother had willfully left H.B., who was six years old by the time of the termination hearing, “in the legal and physical custody of [DSS] . . . for over 12 months”; that H.B. had already spent most of her life living outside of mother’s care, either in the precari ous home of her great-grandmother or in foster placement, by the time DSS became involved with the fam ily; that H.B.’s living arrangements had been “injurious” to her welfare; that mother had “willfully failed to pay a reasonable portion of the costs of the child’s care for a continuous period of six months immediately pre ceding the filing of the petition”; that H.B. had been adjudicated neglected; that mother’s “parental rights with respect to another child”, A.L., “ha[d] been terminated involuntarily”; that mother “lacks the ability or willing ness to establish a safe home”; that mother had repeatedly failed to follow through on her case plan; that DSS had repeatedly attempted to make contact with mother; and that mother had not made any progress toward bringing H.B. back into her care.

The trial court failed to make the necessary, substantive find ings of fact to support its conclusions of law that grounds existed under § 7B-1111 to terminate Mother’s paren tal rights to H.B. The order of the trial court should be vacated and remand ed for the trial court to make further findings of fact to support its conclu sions of law that grounds existed to terminate Mother’s parental rights. The trial court made numerous oral findings that were not contained in the written order; however, since the trial court retains the authority to change its ruling prior to entry of the written order, we cannot presume that the trial court was still confi dent in its finding made during its oral rendition at the time the writ ten order was signed and filed. Upon review, then, we cannot mend the trial court’s shortcomings in drafting the order with our own investigation of that court’s previous statements. Because the trial court’s oral adjudi cation is not a judgment, this court’s review must be limited to the trial court’s written order for the purpose of this appeal. Even though there was evidence that H.B. was doing well in foster care, this was insufficient to support the trial court’s finding that there was no bond between H.B. and Mother, es pecially when the GAL reported that there was indeed such a bond. I would vacate and remand for fur ther findings. In re H.B. (Lawyers Weekly No. 011-120-22, 43 pp.) (John Arrowood, J.) Appealed from Robeson County District Court (Vanessa Burton, J.) Edward Yeager for petitioner; Ben jamin Kull for respondent; Matthew Wunsche for guardian ad litem. 2022-NCCOA-453 Domestic Relations DVPO – Single Act – ‘Harassment’ –Legitimate Purpose – Prior DVPO Even though the domestic vio lence protection statute, G.S. 50B3, adopts the definition of “harass ment” from the criminal stalking statute, G.S. 14-277.3A, the stalking statute’s requirement of a course of conduct is not incorporated into the domestic violence protection statute. Accordingly, we reject defendant’s argument that the trial court was required to base its domestic vio lence protective order (DVPO) on at least two acts. A single act can form the basis for issuance of a DVPO. We affirm the DVPO. The act underlying the DVPO was defendant’s mowing of plain tiff’s lawn, despite her repeated requests that he not do so and her explanation that she had made ar rangements to have the lawn mown. Defendant asserted that he had a legitimate purpose for his act: the lawn was overgrown, and he cut the grass to protect his children and their best interests and their health andWhateverwell-being.persuasive value defen dant’s characterization of the events may have – that his actions served the legitimate purpose of mowing plaintiff’s lawn and were directed at plaintiff’s lawn rather than plaintiff – they do not establish that his ac tions were somehow legitimate as a matter of law or negate competing interpretations of his conduct. In deed, the ability to torment a person while ostensibly targeting a nearby object makes conduct of this type especially appealing to a passiveaggressive harasser, producing the intended effect while maintaining deniability. This very phenomenon underscores the importance of the factfinder’s credibility determina tion. Here, where the finder of fact determined that defendant’s con

In re A.C. (Lawyers Weekly No. 011-119-22, 15 pp.) (Hunter Murphy, J.) Appealed from Wake County Dis trict Court (Lori Christian, J.) Mary Boyce Wells for petitioner; Anné Wright for respondent; Daniel Gib son for guardian ad litem. 2022-NC COA-552 Domestic Relations Parent & Child – Termination of Parental Rights – Barely Sufficient Findings

See Page 13 ► Continued from 11 ►

In re A.D. (Lawyers Weekly No. 011-118-22, 43 pp.) (April Wood, J.) Appealed from Ashe County District Court (David Byrd, J.) Peter Wood for respondent; Anné Wright for petition er; Paul Freeman and Matthew Wun sche for guardian ad litem. 2022-NC COA-551 Domestic Relations Parent & Child – Termination of Parental Rights – Willful Failure to Support – Employment Evidence

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 See Page 14 ► Continued from 12 ►

Claimant Exception – Stacking Defendant was one of several passengers in his own car when a collision occurred; the estate of one passenger, defendant, another passenger, and the driver of the other vehicle all agreed to divide defendant’s $100,000 per-accident liability coverage. Although the liability and underinsured motorist (UIM) limits on defendant’s auto insurance were the same, defendant was entitled to stack his parents’ $100,000 per-person UIM limit before comparing UIM coverage to his car’s liability coverage. As a result, defendant’s UIM recovery is not limited to his parents’ UIM coverage. We affirm judgment on the pleadings for defendant.

Background Defendant was one of several passengers in his 2004 Chevrolet when it was involved in an accident. The driver and one of the passengers in defendant’s vehicle were killed. Defendant, another passenger, and the driver of the other vehicle were injured.Defendant’s car had both liability coverage and UIM coverage of $50,000 per person/$100,000 per accident. Pursuant to an agreement, defendant received $100 in liability coverage; the deceased passenger’s estate received $49,500; the other injured passenger received $49,500; and the driver of the other vehicle received $900. Defendant sought UIM coverage under both his own policy and his parents’ policy. His parents’ policy provided UIM coverage of $100,000 per person/$300,000 per accident. Plaintiff had issued both policies and argued that the “multiple claimant exception” to the definition of “underinsured motor vehicle,” found in G.S. § 20-279.21(b)(4), prohibited defendant from recovering UIM benefits under his own policy. Plaintiff argued that, after defendant’s recovery under his liability coverage, he was entitled to only $99,900 under his parents’ UIM coverage. The trial court disagreed.

Discussion The multiple claimant exception in G.S. § 20-279.21(b)(4) reads, “For purposes of an underinsured motorist claim asserted by a person injured in an accident where more than one person is injured, a highway vehicle will also be an ‘underinsured highway vehicle’ if the total amount actually paid to that person under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of underinsured motorist coverage for the vehicle involved in the accident and insured under the owner’s policy.

NORTH CAROLINA LAWYERS WEEKLY I August 29, 2022 OPINION DIGESTS / 13 duct did not serve a legitimate purpose, we will not undermine that determination by speculating over a coldDefendantrecord. relies on Kennedy v. Morgan, 221 N.C. App. 219, 726 S.E.2d 193 (2012), to argue the trial court could not rely, in any part, on a prior DVPO that plaintiff had obtained against him. Kennedy is distinguishable. Our remark therein that “a vague finding of a general history of abuse is not a finding of an act of domestic violence” was made in the context of a challenge to the sufficiency of the evidence at trial, not a challenge to the admissibility of the evidence. Kennedy expressly contemplated that a trial court might consider a prior DVPO as long as it was not the sole consideration leading to the entry of the currentHere,DVPO.theprior DVPO, at minimum, would demonstrate to the finder of fact whether plaintiff was placed “in fear of imminent serious bodily injury or continued harassment[] . . . that rises to such a level as to inflict substantial emotional distress” by contextualizing plaintiff’ emotional response to defendant trespassing on her property. Moreover, a detailed sense of the relationship dynamic between the parties would assist the finder of fact in determining defendant’s state of mind when evaluating whether defendant’s actions served a legitimate purpose. As such, the trial court did not err in admitting the prior DVPO. Affirmed. Keenan v. Keenan (Lawyers Weekly No. 011-121-22, 16 pp.) (Hunter Murphy, J.) Appealed from Johnston County District Court (Resson Faircloth, J.) David Walker for plaintiff; Robert Schupp for defendant. 2022-NCCOA-554 AutoInsurance–UIM–Multiple

Notwithstanding the immediately

See Page 15 ► Continued from 13 ►

Although the majority holds that defendant’s vehicle qualifies as an underinsured motor vehicle after in ter-policy stacking with his parents’ policy limits, I believe the multiple claimant exception applies and that defendant was not entitled to stack insurance policies. The General As sembly contemplated underinsured motorist claims under an owner’s policy and specifically confined the limit coverage comparison to the owner’sBecausepolicy.defendant was the own er of the vehicle and brought a UIM claim under his own policy, the sec ond sentence of the multiple claim ant exception applies, and the trial court was not permitted to stack de fendant’s policy limits with the lim its of his parents’ policy. Although inter-policy stacking is generally permitted as part of the statute’s avowed purpose of com pensating the innocent victims of financially irresponsible motorists, considering multiple insurance poli cies in this particular type of claim is impermissible pursuant to the statute. Le Bei is factually distinct and not controlling in this case. North Carolina Farm Bureau Mutual Insurance Co. v. Hebert (Lawyers Weekly No. 011-122-22, 13 pp.) (Fred Gore, J.) (John Arro wood, J., dissenting) Appealed from Wake County Superior Court (Vince Rozier, J.) William Lipscomb for plaintiff; Preston Lesley for defen dant. 2022-NCCOA-556

Discussion

Affirmed. R.E.M. Construction, Inc. v. Cleve land Construction, Inc. (Lawyers Weekly No. 011-123-22, 14 pp.) (Val erie Zachary, J.) Appealed from Bun combe County Superior Court (Alan Thornburg, J.) Fenton Erwin and Erin Huegel for plaintiff; Seth Price, Tracy James and Carmela Mastri anni for defendant; James Hash and Kelley Herrin for intervenor. 2022-NCCOA-557

The case sub judice presents a similar factual scenario to Le Bei, in that a plaintiff insurance company is arguing that the multiple claim ant exception prevents an innocent occupant of a vehicle driven by the tortfeasor from stacking and recov ering UIM coverage from multiple insurance policies. Following this court’s precedent, we hold that de fendant is entitled to stack insur ance policies and the multiple claim ant exception does not apply. Because we hold the multiple claimant exception does not apply, the trial court properly held that defendant is entitled to recover UIM coverage from his insurance policy and the parents’ insurance policy. Affirmed. Dissent (Arrowood, J.) This case concerns defendant’s UIM claim under his own policy; accordingly, the mul tiple claimant exception applies and defendant’s vehicle does not qualify as an underinsured motor vehicle under § 20-279.21(b)(4).

With regard to an award of rem edies, an arbitrator does not exceed his powers if (1) state law allows the remedy for the specified cause of ac tion and (2) the arbitration contract does not unequivocally preclude it. State law unquestionably allows for the equitable remedy fashioned by the panel. Thus, the issue presented is whether the subcontracts unequiv ocally precluded the panel’s award. The subcontracts do not explic itly preclude the equitable remedy that the panel fashioned; rather, they expressly vest the arbitration panel with broad discretion to craft equitable remedies through the spe cific adoption of the American Arbi tration Association Rules, including Rule 48(a) (“The arbitrator may grant any remedy or relief that the arbi trator deems just and equitable and within the scope of the agreement of the parties, including, but not limited to, equitable relief and specific per formance of a contract.”). Hence, in estimating the “actual direct cost” in curred by the subcontractor pursuant to the subcontracts, the panel did not exceed the vast equitable powers with which it was endowed by the parties. At its essence, the sole source of the contractor’s complaints on ap peal is that the panel estimated an approximate “amount of the contract funds earned by [the subcontractor] at the time of termination” when the subcontractor had not submitted any evidence to that effect, based on the panel’s statement that it would be “unfair to deny any compensation” to the subcontractor under the cir cumstances presented. However, the contractor cannot point to any provi sion in the subcontracts that forbids the panel from (1) awarding this eq uitable relief— which, again, was explicitly authorized by Rule 48(a) and not specifically precluded by the terms of the subcontracts—and thus (2) estimating the “actual direct cost” to which the subcontractor was en titled based on evidence in the record before it, regardless of which party provided that evidence. The parties could have—but did not—write into the contract a limiting provision for bidding the arbitration panel from fashioning this specific remedy.

Even though the plaintiff-subcon tractor did not present evidence of its damages, the arbitration panel could rely on a document provided by the defendant-contractor and an estimate of damages incurred after the date of the document to calculate an arbitra tion award for the subcontractor. We affirm the trial court’s grant of the subcontractor’s motion to confirm its $237,077 award.

of the Con tract – Choice of Law Provision – Car Title Loan When faced with the plaintiffborrower’s claims arising out of the parties’ car title loan, the arbitrator acknowledged that he had to decide whether to apply the law of plaintiff’s home state – North Carolina – or de fendant’s home state – Virginia. Yet the arbitrator ignored the choice-oflaw provision in the parties’ contract; that provision specified that the con tract was governed by Virginia law. As such, the superior court properly vacated the arbitration award based on the “essence of the contract” doc trine. We affirm the vacatur, but we re verse the trial court’s subsequent dismissal of plaintiff’s claim. We re mand for the trial court to determine whether it will decide the issues itself or return the matter to the arbitrator.

AwardArbitrationVacatur–Essence

Background Under the terms of the parties’ contracts, the contractor did not prop erly terminate the subcontractor for default; therefore, the subcontractor was entitled to monetary compensa tion in the amount of the actual direct cost of all work it provided before be ing improperly terminated. The sub contractor sued, and the contractor elected to submit the matter to arbi tration.Given the lack of evidence of the contractor’s actual direct cost, the arbitration panel (1) relied on a docu ment provided by the contractor to estimate the subcontractor’s cost at $211,151, (2) added an estimate of $25,000 for labor, equipment and de mobilization incurred after the date of the contractor’s document, and (3) added another $926 for technical vio lations of the North Carolina Prompt Pay Act.

Facts Plaintiff borrowed $2,500 from defendant, secured by title to her ve hicle, with interest and fees of around 144 percent. The loan contract speci fied that it was governed by the law of Virginia, where such a contract is arguablyPlaintifflegal.later filed suit, alleging defendant had violated several North Carolina laws. Plaintiff elected arbi tration. The arbitrator recognized that he had to decide which state’s law to ap ply, but he never mentioned the con tract’s choice-of-law provision. The arbitrator awarded plaintiff around $12,800, representing treble damag es. Upon plaintiff’s motion to confirm the award, the trial court instead va cated the award and dismissed plain tiff’s claims.

The U.S. Supreme Court has recognized the essence of the contract doctrine as fitting within § 10(a)(4). The essence of the contract doc trine allows vacatur of an arbitration award if the arbitrator’s award did not draw its essence from the par ties’ contract. The bar for an arbitra tor’s award drawing its essence from a contract is low; the arbitrator need only be arguably construing or apply ing the contract. Here, the trial court found that the award fails to draw its essence from the loan contract “as the application of North Carolina law is inconsistent with the plain language of the Loan Agreement stating that Virginia law applies.”Because the arbitrator’s award “disregarded the plain and unambig uous language of the” loan contract requiring application of Virginia law, the award simply was not rationally inferable from the contract. There fore, the arbitrator’s award failed to draw its essence from the loan con tract.The issue before us is solely “Whether the trial court erred by granting Defendant-Appellee’s Mo tion to Vacate [the] Arbitration Award.” We conclude the trial court did not err in granting that motion because the arbitrator’s lack of men tion or consideration of the loan con tract’s choice of law provision means his award does not draw its essence from the parties’ contract containing that provision, and a failure to draw from the essence of the contract is a valid ground on which to vacate an arbitration award. While the trial court properly va cated the arbitration award as we have explained above, the FAA does not allow it to then dismiss the action. The FAA explains, “If an award is vacated . . . the court may, in its dis cretion, direct a rehearing by the ar bitrators.” 9 U.S.C. § 10(b). The U.S. Supreme Court has explained that, if a court, in its discretion, chooses not to direct a rehearing by the arbitra tors then the court must decide the question that was originally referred to the arbitrators. We remand to the trial court to, in its discretion, choose between directing a rehearing by the arbitrator or deciding the question that was originally referred to the ar bitrator. Affirmed and remanded. Snipes v. TitleMax of Virginia, Inc. (Lawyers Weekly No. 011-124-22, 23 pp.) (Donna Stroud, C.J.) Appealed from Guilford County District Court (Caroline Pemberton, J.) Drew Brown for plaintiff; Jason Evans and Wil liam Farley for defendant. 2022-NC COA-374 Criminal Practice Murder – Expert’s Testimony – Mo tion in Limine & Voir Dire – Cell Phone Analytics Where (1) defendant moved in li mine that the trial court reject pros ecution witness Potter as an expert in cell phone analytics, (2) defense coun sel conducted voir dire of Potter out side the presence of the jury and ob jected to Potter being accepted by the trial court as an expert, (3) the trial court overruled defendant’s objection and accepted Potter as an expert, (4) Potter testified about his use of “Geo Time” to plot the respective locations of defendant’s and the victim’s cell phones at various points of time, (5) defense counsel did not object to Pot ter’s testimony in the presence of the

NORTH CAROLINA LAWYERS WEEKLY I August 29, 202214 / OPINION DIGESTS preceding sentence, a highway ve hicle shall not be an ‘underinsured motor vehicle’ for purposes of an un derinsured motorist claim under an owner’s policy insuring that vehicle unless the owner’s policy insuring that vehicle provides underinsured motorist coverage with limits that are greater than that policy’s injury liability limits.”

Analysis Under the Federal Arbitration Act, an arbitration award can be vacated only if it falls within one of the cat egories set out in FAA § 10. One such category, § 10(a)(4), is “where the ar bitrators exceeded their powers, or so imperfectly executed them that a mu tual, final, and definite award upon the subject matter submitted was not made.”

AAAArbitrationRules–Equitable

Remedy – Con struction Project Subcontractor

The multiple claimant excep tion is not triggered simply because there were two injuries in an acci dent. Instead, the exception only applies when the amount paid to an individual claimant is less than the claimant’s limits of UIM coverage after liability payments to multiple claimants.InNationwide Affinity Ins. Co. of Am. v. Le Bei, 259 N.C. App. 626, 816 S.E.2d 251 (2018), this court in terpreted the multiple claimant ex ception in a manner that would not limit the recovery of innocent occu pants of a tortfeasor’s vehicle.

The contractor argues the arbitra tion panel exceeded its powers and manifestly disregarded the law. We disagree.G.S.§ 1-569.23(a)(4) provides that a trial court may vacate an arbitra tion award where an “arbitrator ex ceeded the arbitrator’s powers. . . .”

On the whole, if the de fense had chosen to use the Gadson evaluation at trial, the state could have been expected to characterize the evaluation as a professional as sessment that Gadson was sane and his memory reliable. Finally, as to the undisclosed un indicted charges against prosecu tion witness Johnson, there is no evidence that the state had treated Johnson favorably at the time of tri al or offered to do so, nor was John son the state’s central witness. Considering the withheld evi dence cumulatively, at best, it would have undercut the reliability of Gad son and Johnson. But both men’s testimony was consistent with the other evidence offered at trial. Even discounting their testimony, the evidence against defendant re mains forceful and compelling. De fendant has not proven a reasonable probability that, had he received the undisclosed evidence, the jury would not have convicted him of the victim’s murder or recommended a sentence of death. Affirmed.

ecution witness – and one-time co defendant – Gadson had confessed to the murder. The evaluation of Gadson’s fit ness to stand trial revealed that he had occasionally suffered seizures and blackouts, but not near the time of the murder. The evaluation said Gadson’s description of hearing voices and a beeping noise was atyp ical for mental illness. Finally, Gad son “exhibited some mild impair ment of verbal memory, but [his] verbal learning was good.” Accord ing to the evaluation, “[o]ther areas of cognition that were assessed were adequate.”

Governmental Immunity

See Page 16 ► Continued from 14 ►

Bowman v. Stirling (Lawyers Weekly No. 001-102-22, 35 pp.) (Allison Jones Rushing, J.) No. 2012. Appealed from USDC at Beau fort, S.C. (Terry Wooten, J.) Teresa Norris, Lindsey Vann and Megan Barnes for appellant; William Jo seph Maye, Alan Wilson, Donald Zelenka and Melody Brown for ap pellees. 4th Cir. Domestic Relations Parent & Child – Termination of Pa rental Rights – Insufficient Findings – Likelihood of Repetition of Neglect – Lack of Progress – Willfulness

Furthermore, the mother testified she had purchased an iPhone for the victim but did not see it at her daugh ter’s house after the shooting occurred. A forensic technician corroborated the mother’s testimony, testifying she did not see the victim’s iPhone during the search of her house. In light of this evidence, we cannot say Potter’s testimony had a probable impact on the jury’s finding of guilt, was a fundamental error, amounted to a denial of a fundamental right for defendant, resulted in a miscarriage of justice, denied defendant a fair tri al, or seriously affected the fairness, integrity or public reputation of ju dicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty. Given the above evidence, defen dant also failed to show plain error in the trial court’s jury instruction on flight. No error. State v. McIver (Lawyers Weekly No. 011-125-22, 16 pp.) (April Wood, J.) Appealed from Cumberland Coun ty Superior Court (Gale Adams, J.) Jo seph Hyde for the state; James Glover for defendant. 2022-NCCOA-561

State v. Highsmith (Lawyers Weekly No. 011-126-22, 11 pp.) (Lucy Inman, J.) Appealed from Du plin County Superior Court (Henry Stevens, J.) Scott Stroud for the state; Joseph Lattimore for defen dant. 2022-NCCOA-560

– Outside Corporate Counsel – Main Purpose of Communication – In Camera Review

We affirm the interlocutory order of the Business Court. Buckley, LLP v. Series I of Oxford Insurance Co., NC, LLC (Lawyers Weekly No. 010-094-22, 3 pp.) (Per Curiam) Appealed from Mecklenburg County Superior Court (Louis Bled soe, C.J.) Mark Kinghorn for plaintiff; James Cooney and Michael Barnhill for defendant; Paul Smith, Naren dra Ghosh, Laura Wetsch and Brian Boone for amici curiae. 2022-NCSC94

First Impression Firefighting is a traditional gov ernmental – as opposed to proprie tary – function of municipal govern ments. We decline to separate out all the components of the defendanttown’s preparatory steps to fight fires, and we agree with our Court of Appeals that the town’s actions were governmental and therefore protect ed by governmental immunity. We affirm the Court of Appeals’ decisions that (1) the town is pro tected from plaintiff’s fraud-related claims based on the doctrine of gov ernmental immunity and (2) the defendant-mayor is protected from those claims by the doctrine of legis lative immunity. Plaintiff, a volunteer fire depart ment, and the defendant-town en tered into a series of contracts re garding plaintiff’s provision of fire protection to the town. One con tract involved the town’s purchase of plaintiff’s real property and the town’s lease of the property back to plaintiff. Plaintiff alleges that the town fraudulently entered into the contracts because the town intended to use, and did use, unsubstantiated claims of breach of contract in order to acquire plaintiff’s property.

Defendant contends that, if the state had given him three pieces of evidence, they would have made a difference in the outcome of his murder trial. Those items of evi dence – (1) an investigator’s report concerning a jail inmate’s recanted note that a prosecution witness had confessed to the murder (defendant had the note itself), (2) an evalua tion of that prosecution witness’s fitness to stand trial himself and (3) the fact that the state had unrelat ed and unindicted charges to bring against a second prosecution wit ness – whether considered singly or cumulatively, would have been in sufficient to overcome the mountain of evidence against defendant. We affirm the district court’s de nial of defendant’s petition for a writ of habeas corpus.

NORTH CAROLINA LAWYERS WEEKLY I August 29, 2022 OPINION DIGESTS / 15 jury, and (6) the trial court stated in the presence of the jury, “Put it on the record so that it is in front of the jury that the objection was overruled as to Mr. Potter being tendered and ac cepted as an expert[,]” defendant did not preserve his objection to the trial court’s acceptance of Potter as an ex pert. Accordingly, we review the trial court’s ruling for plain error. We find no error in defendant’s conviction for first-degree murder. Defendant merely objected to the state’s forecast of the evidence but did not then subsequently object when the evidence was actually introduced at trial. Hence, defendant failed to properly preserve his objection for ap peal.The jury heard testimony from Antonio Johnson that he drove defen dant to the victim’s house, saw defen dant exit the car with Alkeen Hair, and then heard the sound of gunshots approximately five minutes later from the direction defendant had walked. He explained he observed defendant get back into the car; frantically ask Hair “What the f*** you got going on? What type time you on?”; and then re ceive a gun from Hair. Likewise, the victim’s mother testi fied she heard gunshots coming from the victim’s house and saw two men leaving the victim’s front porch. The mother told the jury she recognized defendant because she had previously seen him “several mornings” at the victim’s house. The mother further explained that she saw the victim ly ing in front of the front porch of the house and overheard Hair saying, “Hurry up. Come on ‘cause she gonna call the police.”

Respondent’s children were re moved from her care because of re spondent’s substance abuse, improp er supervision and unsanitary home conditions. After the children had been outside respondent’s care for more than two years, the trial court made findings that could have sup ported a determination that a rep etition of neglect was likely and that respondent’s lack of progress on her case plan was willful; however, the trial court’s termination order fails to make these necessary and distinct de terminations. We vacate the order terminating respondent’s parental rights and re mand for further proceedings. Dissent (Berger, J.) The trial court’s ex tensive unchallenged findings of fact demonstrate that respondent lacked the ability to provide care to the chil dren at the time of the termination hearing and are indicative of a likeli hood of future neglect if the children were returned to her care. Though the trial court could have provided addi tional findings, those it did make sup port its decision to terminate respon dent’s parental rights. In re M.B. (Lawyers Weekly No. 010-093-22, 15 pp.) (Robin Hudson, J.) (Philip Berger, J., joined by Paul Newby, C.J., dissenting) Appealed from Surry County District Court (Marion Boone, J.) Blake Cheek for petitioner; James Freeman for guard ian ad litem; David Perez for respon dent. 2022-NCSC-96 Attorney-ClientAttorneysPrivilege

Criminal Practice Habeas Corpus – Suppressed Evi dence – Cumulative Effect – Over whelming Evidence

The state presented multiple witnesses’ testimony that, before the victim’s death, defendant said he was going to kill the victim and multiple witnesses’ testimony that, after the victim’s death, defendant said he had killed the victim. There was also physical evidence linking defendant to the murder the bul lets used to kill the victim had ri fling that matched a gun connected to defendant, defendant’s DNA was found on the victim, and the vic tim’s wristwatch was found in the jeans defendant wore on the day of the murder. Witnesses also testified about defendant driving the victim’s car, trying unsuccessfully to sell it, and then burning it. The investigator’s report repre sented multiple levels of hearsay, and defense counsel agreed that he would not have wanted the jail in mate to testify, given that he had recanted his note, which said pros

FraudTort/Negligence–Municipal–Governmental & Legislative Immunity – Firefighting –

We must determine whether the activity in question is one in which only a governmental agency could engage. Although private fire depart ments such as plaintiff are autho rized to provide fire service within municipal boundaries, they are fre

Where an investigation by outside counsel had both business and legal purposes, the Business Court prop erly determined that it was neces sary to conduct a detailed in camera review of each disputed document and to mandate disclosure of all com munications that “were unrelated to the rendition of legal services,” while protecting communications that “re flect a primary purpose of giving or receiving legal advice.”

Criminal Practice Search & Seizure – Marijuana Posses sion – Smell Test – Legal Hemp Even though legal hemp is indis tinguishable by either sight or smell from marijuana, the K-9 alert in this traffic-stop case was not the only in dication that defendant was in pos session of marijuana. Other factors cited by the prosecutor were the inconsistent statements made to of ficers by defendant and the driver of the vehicle, the fact that neither the driver nor defendant was the regis tered owner of the vehicle, and the officers’ knowledge of defendant’s prior arrests related to marijuana. Moreover, the trial court found that the officer’s search revealed not only marijuana, but also additional items including a digital scale, over $1,000 in folds of money, ammunition, and a flip cellphone. Under the totality of the circumstances, a vacuum-sealed bag of what appeared to be mari juana, hidden under the seat and found with these items, without any evidence that defendant claimed to the officers the substance was legal hemp, the officers’ suspicions were bolstered, amounting to probable cause to believe the substance at is sue was in fact illicit marijuana and not hemp. The trial court therefore did not err in concluding that defen dant’s Fourth Amendment rights were not violated. We find no error in defendant’s conviction for felony possession of marijuana in excess of one and a half ounces. Given the above facts, we also find the trial court did not err in failing to instruct the jury ex mero motu on whether defendant knew the sub stance he possessed was marijuana.

Legislative Immunity Although this court has not di rectly addressed the doctrine of leg islative immunity to date, our Court of Appeals, the Fourth Circuit and the U.S. Supreme Court have rec ognized its existence. We hold that legislative immunity is a recognized bar to claims against North Carolina public officials. The defendant-mayor’s actions in calling a town council meeting and setting the agenda for that meet ing constituted legislative actions. Although certain of the allegations that plaintiff has made in support of its fraud-related claims describe events that occurred before the mayor’s election, his alleged con duct would not have resulted in any injury to plaintiff in the absence of the legislative acts of calling a town council meeting to vote to terminate the contracts, placing the issue of contract termination on the agenda, and calling for a vote on that issue. As a result, the trial court erred when it denied the mayor’s motion to dismiss plaintiff’s fraud-related claims against him on the basis of legislativeAffirmed.immunity.

Providence Volunteer Fire Depart ment, Inc. v. Town of Weddington (Lawyers Weekly No. 010-095-22, 58 pp.) (Sam Ervin, J.) (Anita Earls, J., concurring in part & dissenting in part) (Tamara Barringer, J., joined by Paul Newby, C.J., concurring in part & dissenting in part) Appealed from Union County Superior Court (Daniel Kuehnert, J.) On discretion ary review from the Court of Ap peals. Christopher Duggan for plain tiff; Andrew Santaniello, Scott Hart and Frederick Bailey for defendants. 2022-NCSC-100

RealConstitutionalProperty–Development

– Mu nicipal – Unconstitutional Conditions Doctrine

Dissent (Earls, J.) Not everything a mu nicipality does that is related to fire fighting is “conduct performed in the course of fighting a fire.” Pruett v. Bingham, 238 N.C. App. 78 (2014), aff’d, 368 N.C. 709 (2016). Certain actions undertaken by a governmen tal entity that are only tangentially connected to a public purpose are not governmental functions. A town purchasing a copier for use at the fire station is not the same legally as firefighters rushing to the scene of a blaze.Purchasing a fire station is not necessarily “conduct performed in the course of fighting a fire.” The fact that the town’s conduct is firefight ing-adjacent is not enough to dem onstrate its entitlement to govern mental immunity when plaintiff has alleged facts that, if taken as true, are sufficient to establish a waiver of immunity.Idissent from the portion of the majority opinion affirming the Court of Appeals’ reversal of the trial court’s order denying the town’s mo tion to dismiss plaintiff’s fraud-based claims on governmental immunity grounds.

Dissent (Barringer, J.) I join paragraphs eleven through nineteen of Justice Earls’ opinion, which explain why, when the complaint is viewed in the light most favorable to plaintiff, the town is not entitled to governmen tal immunity. According to the com plaint, the reason the town commit ted fraud was not for the purpose of obtaining fire services but rather for the purpose of acquiring plaintiff’s real property and then leasing and selling that real property to a differ ent entity. Accepting that allegation as true, the town’s alleged fraud was a proprietary act, not a governmen tal one. Integrity in government is vital for building and maintaining citi zens’ trust and confidence in their governing bodies. A municipality that chooses to participate in a pro prietary function must be held to the same standard as any other busi ness, acting in good faith and free from fraud.

An ordinance adopted by the de fendant-county requires residential property developers to pay one-time water and sewer “capacity use” fees associated with each lot that they wish to develop as a precondition for obtaining the county’s concurrence in the developer’s application for the is suance of required water and sewer permits by the North Carolina De partment of Environmental Quality. These “capacity use” fees are “mon etary exactions” subject to constitu tional scrutiny and must, therefore, satisfy the “essential nexus” and “rough proportionality” test in order to avoid being treated as takings of plaintiffs’ property. We reverse the decision of the Court of Appeals and remand for fur therAccordingproceedings.tothe “unconstitutional conditions” doctrine, “the government may not deny a benefit to a person because he exercises a constitutional right.” Regan v. Taxation With Rep resentation of Wash., 461 U.S. 540 (1983). In instances involving “land-use exactions,” applicants for land use permits are especially vulnerable to the type of coercion that the uncon stitutional conditions doctrine pro hibits because the government often has broad discretion to deny a permit that is worth far more than property it would like to take, thereby creating a situation in which the government can pressure an owner into voluntari ly giving up property for which the Fifth Amendment would otherwise require just compensation. Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), ac knowledge that “many proposed land uses threaten to impose costs on the public that dedications of property can offset” and that “[i]nsisting that landowners internalize the negative externalities of their conduct is a hall mark of responsible land-use policy,” with the Supreme Court having long sustained such regulations against constitutional attack. Nollan and Dolan sought to ac commodate these two concerns by al lowing the government to condition approval of a land-use permit applica tion on the landowner’s agreement to dedicate a portion of his or her prop erty to public use if there is an “es sential nexus” and “rough proportion ality” between the property that the government demands and the social costs of the landowner’s proposed use for the remaining property, with this arrangement serving to “enable per mitting authorities to insist that [per mit] applicants bear the full costs of their proposals while still forbidding the government from engaging in ‘out-and-out . . . extortion’ that would thwart the Fifth Amendment right to justIncompensation.”

Concurrence & Dissent (Berger, J.) If an unconstitutional taking occurred, there is no scenario in which the county can retain the fees collected. I respectfully dissent from that portion of the opinion.

Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013), the Supreme Court extended the requirement to show an “essential nexus” and “rough proportionality” to cases involving “monetary exactions.” Neither party has cited, nor has our own research discovered, any North Carolina precedent other than the Court of Appeals’ decision in this case that addresses the applicability of the “unconstitutional conditions” doctrine to monetary exactions since the Supreme Court decided Koontz in 2013.Initially, we must decide how the “capacity use” fees at issue should be classified. The county contends that the payments are permissible “user fees.” Plaintiffs assert that the pay ments are instead “impact fees” that result in an “exaction.” We agree with plaintiffs. “Impact fees,” which are designed to offset the costs to expand water and sewer systems to accommodate devel opment, are not the same as “user fees,” which are associated with the contemporaneous provision of water and sewer service. The fees at issue are intended to provide the county with a contribution toward the cost of expanding its water and sewer infra structure to account for the additional customers that will be added as a re sult of the developer’s development. As such, the challenged “capacity use fees” are properly categorized as im pact fees rather than “user fees.” This court has yet to specifically define the term “exaction.” We adopt the definition of “exaction” in Batch v. Town of Chapel Hill, 92 N.C. App. 601 (1989), rev’d on other grounds, 326 N.C. 1 (1990): a condition of de velopment permission that requires a public facility or improvement to be provided at the developer’s expense. We hold that the challenged “capacity use fees” constitute both “impact fees” and “monetary exactions.” We remand to the trial court for application of the essential nexus and rough proportionality tests. Despite our acceptance of the plaintiffs’ underlying legal theory, we agree with the county that it would be improper for plaintiffs to recover the “capacity use” fees that they have already paid in the event that plain tiffs have passed those costs along to others, such as ultimate purchasers, in order to ensure that no party re ceives a “windfall.” On remand, the county shall be permitted to pres ent evidence concerning the extent to which, if at all, plaintiffs factored the cost of the challenged “capacity use” fees into the prices at which they have sold lots to ultimate purchasers. In the event that the trial court finds that plaintiffs have done so, it shall be permitted to hear evidence regarding the appropriate manner by which any such amount should be distributed to the parties in order to ensure that no party receives a windfall as a result of theseWeproceedings.holdthatthe “capacity use” fees at issue in this case are “mon etary exactions” subject to consti tutional scrutiny under Koontz and must therefore satisfy the “essential nexus” and “rough proportionality” test in order to avoid being treated as takings of plaintiffs’ property. Reversed and remanded

Continued from 15 ►

Anderson Creek Partners, L.P. v. County of Harnett (Lawyers Weekly No. 010-096-22, 89 pp.) (Sam Ervin, J.) (Philip Berger, J., joined by Paul Newby, C.J., concurring in part & dissenting in part) (Anita Earls, J., joined by Robin Hudson & Michael Morgan, JJ., dissenting) Appealed from Harnett County Superior Court (Michael O’Foghludha, J.) On discre tionary review from the Court of Ap peals. 2022-NCSC-93

Dissent (Earls, J.) The county’s impact fee is not a monetary exaction subject to the unconstitutional conditions doc trine, requiring property owners who want the county to expand its water and sewer infrastructure to their property to offset a portion of the cost is not a taking, and imposition of a generally applicable non-discretion ary legislative fee is not coercive. The result of the majority opinion is an unwarranted and unwise expansion of the scope of the Takings Clause that will engender frequent litigation and may ultimately diminish the ca pacity of municipalities to recoup fees to offset the costs of maintaining vital public infrastructure for the public’s benefit.

NORTH CAROLINA LAWYERS WEEKLY I August 29, 202216 / OPINION DIGESTS

quently acting on behalf of local gov ernmental entities when they do so. Fire protection is traditionally provided by a governmental entity, the town does not charge a fee to its residents for fire protection services, and the town does not make a profit in connection with the provision of suchFurthermore,services. even if our statutes do not directly resolve the issue of whether entering into contractual arrangements for the provision of fire protection services is govern mental or proprietary in nature, G.S. § 160A-291 and G.S. Chapter 69 represent a significant statutory indication that the activity is govern mental. In addition, the provision of fire protection services is decidedly noncommercial in nature given that such services have traditionally been provided by governmental entities for the purpose of protecting the safe ty and well-being of local residents. Finally, we decline to differen tiate between the purchasing and leasing of real estate for the purpose of providing fire protection services from the other activities involved in the provision of such services, given that both actions were part of the same transaction and had the effect of accomplishing the same govern mental purpose. In essence, the contracts between the parties reflect that the fire sta tion that plaintiff intended to use to provide fire protection services to the residents of the town needed renova tion, that the town had agreed to pay for those renovations and assume a portion of plaintiff’s debt, and that the town had entered into the sale and lease back arrangement with plaintiff for the purpose of securing its investment. Given that plaintiff would need a fire station in order to provide service to the town and given that the transaction reflected in the sale and lease-back agreement set out the manner in which the needed fire station would be provided, we are unable to divorce the provisions of the sale and lease-back agreement from the remainder of the overall transaction between the parties, which was clearly intended to en sure that the residents of the town received fire protection services.