In a statement, the plaintiff’s attorney Joshua Erlich said, “we are excited to get back into court to vindicate Kesha’s rights.”
U.S. Circuit Judge Diana Gribbon Motz said the court “could not adopt an unnecessarily restrictive reading of the ADA,” given that Congress expressly instructed courts to construe the act in favor of maximum protection for those with disabilities.
Bar Association General Practice Hall of Fame in 2012 and was recognized by the North Carolina Senate for 60 years of legal practice in 2021.
The U.S. Court of Appeals has ruled that gender dysphoria is a covered ‘disability’ within the Americans with Disabilities Act, which the court recently decided in a case of first impression. DepositPhotos
U.S. Circuit Judge Pamela A. Harris joined Motz’s opinion, while U.S. Circuit Judge A. Marvin Quattlebaum Jr. penned a partial concurrence and dissent.
McGirt’s professional associations and mem-
“To so hold would be for a court to take it upon itself to rewrite the statute in two impermissible ways: by penciling a new condition into the list of exclusions, and by erasing
are with Dottie and his family.”
Page 3 AdviceINSIDEongetting ready for the end of public health emergency Page 4
Page 4 Several
See Supreme Court Page 7 ► NCLAWYERSWEEKLY.COM
See McGirt Page 6 ►
Plaintiffs settle for $4.4M in bridge collapse at Wake Tech employees to be compensated in settlement
Congress’ command to construe the ADA as broadly as the text permits,” Motz wrote. “We cannot add to the ADA’s list of exclusions when Congress has not chosen to do so itself.”
Through the years, McGirt represented clients in a wide range of cases, including banking law, business and commercial law, estate planning, business organizations, condemnation, civil litigation and real estate, earning recognition for more than 30 straight years as an AVPreeminent attorney based on Martindale-Hubbell’s Peer Review Ratings.
■ BY JASON BOLEMAN BTN Wire Services
covers gender dysphoria, defined in the court’s opinion as a “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.”
The ruling makes the Fourth Circuit the first federal appellate court in the country to find that the ADA
McGirt was admitted to the NC Bar in 1961 after earning his B.A. degree from LenoirRhyne College (class of 1958) and J.D. from University of North Carolina Chapel Hill School of Law (1961). He joined Walser Brinkley (as the firm was then known) immediately thereafter. He was admitted to the Bar of the Supreme Court of the United States in 1971.
COMMENTARY VERDICTS & SETTLEMENTS VERDICTS & SETTLEMENTS VOLUME 34 NUMBER 18 ■ SEPTEMBER 12, 2022 ■ $8.50Part of the network
See Protection Page 6 ►
NC precedentCourtSupremetosses
David Inabinett, managing member of Brinkley Walser Stoner PLLC, recently announced the passing of longtime firm member Charles “Charlie” McGirt.
The case returns to the Eastern District of Virginia.
McGirt joined the firm in 1961 and recently celebrated 60 years of practicing law. He died on Sept. 2 after a recent illness, according to a news“Charlierelease.was the consummate professional, dedicated to his clients, the firm, and the community,” Inabinett said in the news release. “He was caring team member, always courteous and respectful. Charlie was a mentor and friend to those of us in the firm and outside. Our prayers
MAXIMUM PROTECTION
■ BY HAVILAND STEWART hstewart@nclawyerseweekly.com
Although the use of resuscitation drugs and the performance of CPR Doyle was able to revive Gullatte, the approximately 13 minutes of oxygen
A recent ruling by the North Carolina Supreme Court that overturned a 90-year-old precedent could alter physician/nurse relationships in the future.The Supreme Court’s ruling, which was handed down Aug. 18, also brings into focus the changing nature of the health care industry and the evolving role of registered nurses during medical procedures.In2010, then3-year-old Amaya Gullatte underwent a procedure at Carolinas Medical Center for cardiomyopathy – a condition that enlarges the heart and makes it difficult for the heart to pump blood correctly, according to the N.C. Supreme Court Opinion.Heranesthetics team consisted of anesthesiologist Dr. James M. Doyle, and Certified Registered Nurse Anesthetist Gus C. VanSoestbergen. They used a mask to administer the anesthetic sevoflurane to Gullatte prior to the surgical procedure. Shortly after she received the anesthesia, Gullatte went into cardiac arrest.
Longtime attorney Charles ‘Charlie’ McGirt dies
John Edwards
Mary Kathryn Kuhn
McGirt‘Charlie’Charles
Gender dysphoria is a covered “disability” within the Americans with Disabilities Act, or ADA, the 4th U.S. Circuit Court of Appeals has ruled in a case of first impression.The decision in Williams v. Kincaid (VLW 022-2-204) reverses the district court and allows a transgender woman’s lawsuit against the Fairfax County sheriff and two prison officials to proceed.
Gender dysphoria covered by ADA
McGirt was inducted into the North Carolina
tion attorney who focuses his practice on general civil litigation, the defense of tort matters including medical malpractice, product liability and ap pellate law matters.
Fisher Phillips, one of the coun try’s preeminent labor and employ ment law firms representing em ployers, has announce that Mary Grace Miller and Sharon Suh have joined the firm as associates in the Charlotte office.
• Rhodes focuses his practice on complex commercial litigation
NORTH CAROLINA LAWYERS WEEKLY I September 12, 20222 / NEWS
Employment Opportunity Commis sion.Miller also served as Assistant Attorney General for the Virginia Department of Corrections where
and tort matters, including product liability defense and general liability claims. Before attending law school, he earned a master’s degree in NonProfit Leadership and worked in the field to reduce intergenerational pov erty.
• Sitjar has over a decade of ex perience in both private and govern ment practice. She previously served our country in the United States Air Force Judge Advocate General Corps, representing the government and in dividuals in criminal justice and ad ministrative matters.
The constitutional right to hunt, fish and harvest wildlife was approved by voters in November 2018. The “conserve and protect” language cited in the lawsuit was added to the constitution in 1972.
The state appealed Collins’ rul ing. Court of Appeals Judge Toby Hampson wrote Tuesday that state courts hadn’t previously ruled until now whether sovereign immunity bars someone from su ing to enforce the state’s “public trust” obligations.
Superior Court Judge Bryan Collins refused last year to dis miss the lawsuit. He rejected ar guments by state Department of Justice attorneys that individual rights haven’t been violated in the challenged constitutional pro visions, which in part only clari
Prior to joining Fisher Phillips, Suh was an associate at a national law firm where she assisted clients with legal research and composed legal briefs, pleadings, memoran
Mary MillerGrace
Before joining Fisher Phillips, Miller was an attorney at a na tional law firm where she defended clients against business and com mercial litigation, and labor and employment claims, according to a news release from the firm. She also provided employment counsel ing and responded to requests from and appeared before the Equal
Ellis & Winters welcomes four attorneys
Suh earned her J.D. from Notre Dame Law School and her B.A., cum laude, from Pepperdine Uni versity.
fies state policies and functions. The state attorneys also said the state hasn’t waived sovereign im munity, which exempts state gov ernment from lawsuits unless an agency consents to be sued.
Sharon Suh
As a litigator, she advocates for her clients in the courtroom and provides timely and effective legal advice related to employment mat ters. At Fisher Phillips, Suh will continue her employment practice by defending clients against em ployment litigation and advising them on sound workplace policies to reduce the risk of litigation.
The Coastal Conservation As sociation of North Carolina and more than 80 individuals sued the state in 2020, alleging it had failed its fiduciary duty to protect the state’s fisheries from overfishing. Their complaint cited constitu tional provisions giving people the right to hunt and fish and making it the state’s policy “to conserve and protect its lands and waters for the benefit of all its citizenry.”
The complaint was filed in No vember 2020. It said fisheries reg ulators have “continued to allow — and even facilitated — several commercial fishing practices that result in substantial wastage of coastal fish stocks or their prey species, or result in critical habi tatThosedestruction.”practices included shrimp trawling in estuarine waters heav ily populated by young fish, un attended gill nets, and chronic overfishing of popular species, according to the association. Fish stocks that have declined mark edly include weakfish, Atlantic croaker and river herring, the con servation group says.
In particular, the anglers blamed the state Division of Ma rine Fisheries and state Marine Fisheries Commission for allow ing excessive for-profit commer cial fishing and certain fishing methods that they say have led to dramatic declines in certain fish stocks since 1997. The plaintiffs want a court to declare violations have occurred and to force the state to make changes.
The North Carolina Court of Appeals has ruled that coastal anglers can keep suing the state over accusations that regulators have devastated fishing stocks. Pexels.com
“The doctrine of sovereign im munity will not stand as a barrier to North Carolina citizens who seek to remedy violations of their rights guaranteed under the North
• Johnson is an experienced litiga
Miller earned her J.D., cum laude, from the University of Rich mond School of Law and her B.A., cum laude, from Dickinson College. She is admitted to practice in North Carolina and Virginia.
she defended the agency in suits brought pursuant to the state’s Civil Rights Act. At Fisher Phillips, Mary Grace expands the firm’s em ployment litigation and advice and counseling capabilities in Charlotte.
Ellis & Winters has welcomed four attorneys to the firm’s Litigation Group. Barrett Johnson, Christopher Rhodes, Jaclyn Sitjar, and Chazle’ Woodley joined the firm’s Raleigh of fice in August.
• Chazle’ Woodley grew up in North Carolina and moved back to attend law school as a scholarship student. She spent several years in Chicago, working predominantly in the non-profit arena after earning her MBA. She focuses her practice on complex commercial disputes and tort matters.
Staff report
“We are very excited to have these four impressive attorneys, Barrett, Chris, Jackie, and Chazle’ join Ellis & Winters. Each of these individu als offers unique and diverse talents to our Litigation Group, and to our clients,” said Ellis & Winters Manag ing Partner Leslie Packer in a news release.Below is additional information re garding our newest attorneys.
Staff report
Appeals court: NC fisheries challenge can continue
Fisher Phillips adds 2 attorneys in Charlotte
The public trust doctrine states that natural resources are held in the government’s trust to benefit current and future generations. But Hampton said a review of North Carolina law by the threejudge panel hearing the case de termines that sovereign immunity doesn’t bar such claims.
da, and motions in both federal and state courts, the release stated.
Carolina Constitution,” Hampson wrote in the unanimous opinion. And he said the plaintiffs’ alleged wrongs — the inability to protect public waters and to carry out the right to harvest fish — can’t be ad dressed through any other means.
Jaclyn SitjarRhodesChristopher WoodleyChazle’
The Coastal Conservation Asso ciation of North Carolina praised Tuesday’s decision, which also was agreed to by Court of Appeals Judge Hunter Murphy and April Wood.“We look forward to proving our case on the merits and ensuring that sustainable coastal fisheries will be there for our children and grandchildren,” David Sneed, the group’s executive director, said in a statement.Divisionof Marine Fisheries spokesperson Patricia Smith said state attorneys were reviewing Tuesday’s decision and consider ing whether to appeal it to the state Supreme Court.
JohnsonBarrett
RALEIGH, N.C. (AP) — Coastal recreational anglers can keep su ing the state of North Carolina over accusations that government regulators have devastated nearshore fishing stocks in violation of the state constitution, the state Court of Appeals ruled last week.
During the PHE, CMS processed over 250,000 section 1135(b) waiver requests, so the process of unwind ing the extensive waivers and flex ibilities is complex. To assist provid ers with understanding the status of the waivers and flexibilities, CMS released fact sheets[2] summarizing which waivers and flexibilities have already been terminated, which have been made permanent, and which will end at the end of the PHE. There are over 35 CMS fact sheets which include fact sheets for the following providers:•Physicians and other clinicians
It is very likely CMS will conduct audits in the future to ensure that providers are no longer utilizing waivers and flexibilities that have been terminated. To avoid overpay ments, civil monetary penalties, provider enrollment issues, admin istrative liability, and False Claim Act liability, providers must react quickly to be compliant with CMS policies that are shifting to the postpandemic world.
• Long-term care agencies (skilled nursing facilities and/or nursing fa cilities)
prior to the pandemic.
• Understand the waivers and flexibilities that are still being uti lized by your organization, and whether they will expire with the end of the PHE, or have been tem porarily or permanently extended.
Alice
■ BY JENNA K. GODLEWSKI AND ALICE V. HARRIS Nexsen Pruet
GodlewskiJennaHarris
As the need wanes for the waivers and flexibilities implemented due to the public health emergency declared as a result of the COVID-19 pandemic, there has been great speculation on when the PHE will end. Pexels.com Raleigh,
Paul J. Puryear, Jr. (Of Counsel)
Advice to providers: Prepare to implement a 60-day plan to be compliant when the federal PHE ends
It is likely the PHE will be ex tended past Oct. 15, 2022, since no tice has not yet been given that it will be terminated. However, due to the message conveyed in the CMS blog post, providers should create a “60day plan” now to ensure compliance with CMS policies and regulations well in advance of the termination of the PHE. Core elements of a “60-day plan” plan should include the follow ing considerations:
Implement policies and proce dures that adhere to CMS policies and regulations that were in place
Ensure that any additional re quirements imposed on your orga nization during the PHE that are not expiring with the PHE are still being performed.
Our
CMS states in the CMS Blog Post that the waivers listed in the fact sheet for each provider type will be terminated when the PHE ends un less specifically stated otherwise. As an example of extending a waiver, the use of Audio-Only Telehealth for certain services, has been extended for 151 days past the termination of theThePHE.[3]CMS Blog Post also advises providers that it found additional re quirements implemented for certain providers as a result of the PHE to be valuable and, therefore, will not be terminated with the PHE. For exam ple, CMS has extended the require ment for long term care facilities to report resident and staff infections and deaths related to COVID-19 through December 2024.
The current extension of the feder al public health emergency declared as a result of the COVID-19 pandemic (“PHE”) will expire on Oct. 15, 2022. As the need wanes for the waivers and flexibilities implemented due to the PHE, there has been great specu lation on when the PHE will end.
plans•Ambulances•Endstagerenal disease facilities
Risks of not preparing
• Educate and your providers and
North Carolina 27612
The CMS roadmaps for under standing the status of PHE waiv ers and flexibilities
• Medicare shared savings pro grams
Laboratories
CMS reminded pro viders that many of the waivers and flexibilities will be terminated when the PHE ends. CMS also confirmed that it will give a 60-day notice prior to the termina tion of the PHE. Throughout the blog post, CMS advises providers to pre pare by returning to the health and safety protocols and billing practices in place prior to the pandemic.
staff on the “new” policies and pro cedures and explain the importance of swift implementation.
• Conduct internal audits prior to the termination of the PHE to en sure the waivers and/or flexibilities are no longer being used.
We
• Hospitals and CAHs, ASCs and CMHCs•Teaching hospitals, teaching physicians and medical residents
NORTH CAROLINA LAWYERS WEEKLY I September 12, 2022 COMMENTARY / 3
ed flexibilities to re spond to COVID-19. CMS is now signal ing that the end of the PHE is near, and, with it, many of the flexibilities will end.In a blog post called “Creating a Roadmap for the End of the COV ID-19 Public Emergency,[1]”Health (“CMS Blog Post”)
and associations in the following areas: • Catastrophic Personal Injury and Medical Malpractice • Civil Rights and Police Misconduct • Boating and Maritime Accidents • 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
Getting ready for the end of the federal PHE
• Inpatient rehabilitation facili tiesLong-term care hospitals and extended neoplastic disease care hospitals• Rural health clinics and feder ally qualified health centers
Zaytoun Ballew & Taylor is very pleased to announce the addition of PJ Puryear as Of Counsel with the Firm. 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. expanded team at Zaytoun Ballew & Taylor looks forward to continuing to represent clients in state and federal courts in complex civil litigation matters. continue to welcome referrals
• Durable medical equipment, prosthetics, orthotics and supplies Medicare advantage and Part D
zaytounlaw.com (919) 832-6690 3130 Fairhill Drive, Suite 100
On Aug. 18, 2022, the Centers for Medicare & Medicaid Servicesclearly sent a message that the end is near and providers need to prepare for the “return to normal” business practices.
• Home health agencies Hospice
Harris is an experienced health care, reimbursement, and compli ance attorney based in Nexsen Pruet’s Columbia, S.C., office, where she as sists hospitals, health care systems, physician practices, skilled nurs ing facilities, hospice agencies, home health care agencies and other health care providers with a wide variety of matters. Godlewski focuses solely on health care law and assists medical practices across the country on reim bursement, regulatory, and compli ance matters.
During the COVID-19 PHE, CMS used a variety of tools including emer gency waivers, regulations, enforce ment discretion, and carealsoaccessguidancesub-regulatorytoensuretocarewhilegivinghealthprovidersneed
©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.
Michael McArthur, Business Manager mmcarthur@bridgetowermedia.com
■ DisaCIRCULATIONEhrler
Attorneys for plaintiff: Robert Zay toun, Matthew Ballew, and George Podgorny of Zaytoun Ballew & Taylor in Raleigh
SETTLEMENT REPORT – FAIR LA BOR STANDARDS ACT
Venue: United States District Court for the Eastern District of North Carolina
Plaintiffs settle for $4.4M in bridge collapse at Wake Tech in Raleigh
Several plaintiffs have agreed to a total settlement of more than $4.4 million in cases involving the 2014 bridge collapse at a Raleigh college that injured four construction work ers and killed another.
Plaintiffs’ attorneys Robert Zay toun, Matthew Ballew, and George Podgorny of Zaytoun Ballew & Tay lor in Raleigh wrote in an email to Lawyers Weekly that the bridges collapsed due to a design flaw in the way the trusses on the bridge span connected to the end girders.
Injuries alleged: Unpaid overtime
lirwin@bridgetowermedia.com
Just 12 hours later, another bridge collapsed on campus, though no one was injured in the 12:30 a.m. inci dent. This bridge, similar in design to the bridge at issue in this case, was also under construction. Both bridges were part of the expansion of the Northern Wake campus.
Send address changes to: North Carolina Lawyers Weekly, Subscription Services, P.O. Box 1051, Williamsport, PA, 17703-9940
More than $80,000 in attorney’s fees and costs and $7,500 in a service award fee to the lead plaintiff were included in the settlement.Oxendine listed Kevin Joyner and Michael Cohen of Ogletree, Deakins and Roger Askew and Jennifer Jones of Wake County as representing the de fense.Neither Joyner nor the Wake Coun ty attorney’s office returned a request for comment on the matter. A number for Cohen could not be immediately located.
Amount: $378,097.21
NORTH CAROLINA LAWYERS WEEKLY I September 12, 20224 / VERDICTS & SETTLEMENTS
■ ACCOUNTING & ADMINISTRATIVE
Amount: $4,413,750 (total amount of six settlements)
Bradley Redmond, Director of Production
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
■ BY HEATH HAMACHER
attorneys claimed that several companies and individu als involved in the project shared liability not only for the presence of the flawed notch design but also for the failure to identify and cor rect the flaw during the design and construction phases prior to the col lapse. They included the project structural engineers involved in de signing the notched connections and the architecture firm that retained and worked with the structural en gineers.After seven years of “hard-fought
Defense counsel included Bob Meynardie of Meynardie & Nanney, Fred Rom of Womble Bond Dickin son, and Stephen Safran of Safran Law, all in Raleigh. None of the at torneys immediately responded to a request for comment.
North Carolina Lawyers Weekly is a publication of BridgeTower Media, 222 South Ninth Street, Suite 900, Minneapolis, MN 55402.
“It was quite complex to figure it all out but once we did, we filed suit and then we ended up settling the case,” said attorney Ryan Oxendine of Ox endine Barnes & Associates which represented 120 plaintiff employees in the Thecase.class action matter concerned back wages alleged to be owed to EMS workers due to overtime regulations. Oxendine said that hours worked on overnight shifts were sometimes situated all on the previous day’s timesheet which, in some instances, might cause misreporting of overtime by placing hours in the wrong week.
Judge: Robert Ervin
POSTMASTER: Electronic Service Requested.
Most helpful experts: David John son, PE, Ph.D. (structural engineer), Chris McClure, AIA (architect), and Ian Chin AIA, PE (architect and structural engineer)
Attorneys for defendants: Bob Meynardie of Meynardie & Nanney, Fred Rom of Womble Bond Dickin son, and Stephen Safran of Safran Law, all in Raleigh
Case name: Steven Gorrell v. Wake County
SETTLEMENT REPORT—WRONG FUL DEATH/NEGLIGENCE
Jason Thomas jthomas@scbiznews.com
(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.
Case No.: 5:21-CV-00129
At approximately 10:30 a.m. on Nov. 13, 2014, a 200-foot-long pe destrian bridge being constructed at Wake Technical Community Col lege collapsed as concrete was being poured on the metal deck to provide the walking surface. Construction worker Jose Luis Rosales-Nava, 42, was killed in the incident.
Corey Edwards, Production Specialist
Charlotte919-829-9333Establishedredress.1988•1-800-876-5297office:130NorthMcDowell Street, Unit B, Charlotte, NC 28204
Date of settlement: August 9, 2022
■ PRODUCTION & OPERATIONS
■ SheilaADVERTISINGBatie-Jones, Advertising Account Executive sbatie-jones@sclawyersweekly.com
“This was an internal error,” said the statement. “It was not intention al or willful. The county has made
Employees to be compensated as part of settlement
changes in the way overtime is calcu lated and paid to ensure this will not happen again. The county is proud of the hard work and dedication of all of its employees and did not hesitate to make all affected employees whole.”
■ BY DAVID BAUGHER
BallewMatthewJimOxendineRyanPodgornyGeorgeZaytounRobertBarnes
“That is what motivated us, and in the end, we believe we achieved that goal,” Zaytoun said.
■ INTERIM EDITOR
Circulation: 1-877-615-9536
Court: Wake County Superior Court Case No.: 16-CVS-13800
"Helping lawyers practice better, more efficiently, and more profitably."
Attorneys for defendant: Kevin Joyner and Michael Cohen of Ogletree, Deakins, (Raleigh); Roger Askew and Jennifer Jones of Wake County, (Raleigh)
Attorneys for plaintiff: Ryan Oxen dine and Jim Barnes of Oxendine Barnes & Associates, (Raleigh)
service@bridgetowermedia.com
Scott Baughman, Digital Media Manager sbaughman@mecktimes.com
The practice was calculated to have ultimately totaled more than $144,000 in lost Oxendinewages. said that the defense claimed it was simply an oversight but he felt the evidence indicated that there was awareness of the practice.
Multiple litigations were filed in the incident and were consolidated for discovery purposes. The last of six settlements was approved on Jan. 25, plaintiffs’ attorneys report.
settlement included an amount of liqui dated wages equal to the back wages.
litigation,” multiple mediations, and six settlements, plaintiffs’ attorneys said a resolution was finally reached.
“The notches failed when concrete began to be poured onto the bridges, while our clients were standing atop the bridge structures smoothing and finishing the concrete as it was being poured,” the attorneys wrote. “The notches caused the wooden beams of the bridge to violently crack and rip apart, causing the catastrophic and immediate collapse of the en tire bridge structure, bringing down literally tons of concrete, wood, and
, Audience Development Manager dehrler@bridgetowermedia.com
A statement released to news out let WRAL from County Manager Da vid Ellis said that the issue was a sim ple mistake which was solved through quick action after it was discovered.
Zaytoun said that his clients asked him to hold everyone responsible for the “tragedy” to account.
Dozens of Wake County employees will be compensated with more than $378,000 as part of a settlement over wage and hour issues.
steel on top of our clients.”According to an Occupational Safety and Health Admin istration (OSHA) report, the bridges failed because OSHAstrophicleadingcracks,mationresulted“fullthenotchesnections,endlygirdersglue-laminatedthewereseverenotchedateachtofacilitateconandthosewereunderapplicationofadeadload”thatintheforofhorizontal“eventuallytothecatafailures.”notedthatnotchesinwoodmembershavebeenaperennialconcernamongstructuralengineersandthatalltextbooksandcodesrecommendagainstusingthemunlessremediedbylonglagwoodscrewsorsteelplatesboltedtothebeamsonei
therPlaintiffsside.
Date of settlement: Last settlement approved on Jan. 25
■ HavilandEDITORIALStewart, Reporter hstewart@nclawyersweekly.com
■ LizPUBLISHERIrwin
Case name: Estate of Rosales-Nava et al. vs. Clark Nexsen, Inc. et al.
John Reno, Production Specialist
Judge: Richard Myers II
Injuries alleged: Death, multiple broken bones and various trau matic injuries
“We had a recording of a Zoom call and we had an email where you could clearly see that they knew about it,” he Thesaid. Fair Labor Standards Act
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In a case of first impression decided in July 2022, the Second Circuit set a bright-line rule that the Bankruptcy Code’s automatic stay provisions “are violated by the foreclosure sale of a property when the debtor is a named party in the foreclosure proceedings, even if the debtor holds only a posses sory interest in the property.” In re Fogarty, 39 F.4th 62, 71 (2d Cir. 2022). The case addressed a fore closure on a home occupied by the debtor but owned by the debtor’s limited liability company (LLC), which had not filed for bankruptcy.
The decision may surprise some creditors because a fundamental precept of corporate law is that an LLC is a legal entity separate from its members, so the members have no ownership rights in as sets owned by the company. Thus, when a member of an LLC files a bankruptcy petition, assets owned solely by the LLC do not consti tute property of the debtor’s bank ruptcy estate and aren’t necessar ily shielded from collection efforts by the automatic stay. However, if the member who entered bank ruptcy holds a possessory interest in a residence owned by the nondebtor LLC, the member’s posses sory interest itself may constitute property of the bankruptcy estate and be entitled to the protections of the automatic stay.
The debtor filed a motion in her bankruptcy case seeking sanctions against the servicer for a willful violation of the automatic stay. The bankruptcy court denied the motion, but on appeal the district court reversed and instructed the bankruptcy court to determine the amount of actual damages and to consider punitive damages. The Second Circuit Court of Appeals affirmed the district court’s ruling in favor of the debtor.
In the Fogarty case, the in dividual debtor lived in a house owned by an LLC in which the debtor held a 99 percent member ship interest. The house was sub ject to a mortgage to secure debt owed by the LLC. When the LLC defaulted on the mortgage prior to the debtor’s bankruptcy, the loan servicer started a foreclosure ac tion in state court. The LLC was initially the only named defendant in the foreclosure action, but the servicer later added the debtor as
damages. A creditor may also face punitive damages if the bankrupt cy court finds the creditor acted maliciously or with reckless disre gard and actual knowledge of the stay. A creditor with a track record of stay violations may be presumed to have acted in bad faith, weigh ing in favor of a punitive damages award.
Lisa Sumner is a member at
The automatic stay triggered by a bankruptcy filing may protect the debtor’s residence even if the debtor does not own the property, according to a recent decision from a New York-based federal appeals court.
a defendant. The servicer obtained a judgment allowing a foreclosure sale.
Creditors beware: Bankruptcy stay may shield property possessed but not owned by debtor
Lisa Sumner
P.
■ BY LISA P. SUMNER Nexsen Pruet
It remains to be seen whether other courts follow the Second Cir cuit’s lead. The Fourth Circuit has held that, at least for nonresiden tial property, “[a] mere possessory interest under an expired lease is insufficient to trigger an auto matic stay . . .” In re Premier Auto. Servs., Inc., 492 F.3d 274, 281 (4th Cir. 2007).
Four days before the scheduled fore closure sale, the individual debtor filed a Chapter 7 bankruptcy pe tition. Debtor’s counsel called the servicer on the eve of the sale to contend the automatic stay barred the foreclosure sale because the property was the debtor’s resi dence, even though she did not own the property. The servicer rejected the argument on the grounds that the debtor’s petition for personal bankruptcy did not protect assets owned by the LLC. Although the servicer could have sought stay relief from the bankruptcy court to allow the foreclosure sale, the servicer chose not to do so. The sale took place and the third-party purchaser evicted the debtor after securing relief from the automatic stay.
Nexsen Pruet and is admitted to practice in North Carolina and South Carolina. She has been help ing creditors protect and enforce their rights in North Carolina, South Carolina and Virginia for more than two decades by structur ing deals to avoid risk and maxi mize recovery, pursuing effective collection strategies, and defending against lender liability claims.
COMMENTARY / 5 In a case of first impression from July 2022 the Second Circuit Court set a bright-line rule regarding the Bankruptcy Code’s automatic stay provisions. Pexels.com
In the absence of clear author ity, wise creditors will seek stay relief to avoid potentially costly consequences. A creditor found in violation of the automatic stay may be ordered to pay the debtor’s actual damages, including attor ney fees — and, depending on the jurisdiction, emotional distress
NORTH CAROLINA LAWYERS WEEKLY I September 12, 2022
At trial, the defendants moved to dismiss the complaint, contending that the ADA offered no basis for relief as gender dysphoria is not a covered “disability” under the ADA because gender dysphoria “is an identity dis order not resulting from physical im pairments.”Thelower court dismissed the ADA and Retribution Act claims under this basis.
Gender dysphoria
The reassignment came after she explained that she had not had geni tal surgery pursuant to a prison policy that stated “[m]ale inmates shall be classified as such if they have male genitals” and “[f]emale inmates shall be classified as such if they have fe maleAftergenitals.”being moved to men’s hous ing, Williams claimed she experienced delays in receiving medical treatment, including hormone medication she had been taking for 15 years for her gender dysphoria.
exclusions found in the statute, argu ing that because the statute excludes “gender identity disorders not result ing from physical impairments” from its protections, Williams’ condition was not covered.
The majority opinion further states the prison’s policy of classifying detain ees according to genitalia appears to violate the Prison Rape Elimination Act, which requires prisons to “con sider on a case-by-case basis whether placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.”
“Critically, this holding applies to any individual seeking accommoda tions for gender dysphoria, including in employment, public accommoda tions, and in any other context in which the ADA provides disability protections,” Erlich noted.
Staff report
The court agreed that Williams al leged sufficient facts to support the inference that her gender dysphoria results from physical impairments, particularly the need for hormone treatments that she has been taking for 15 “Thatyears.Williams did not ‘specifically allege that her gender dysphoria is rooted in some physical component’ by using those particular words does not render implausible the inference that her gender dysphoria has a physical ba sis,” Motz wrote. “Williams’ complaint, as it stands, permits the plausible in ference that her condition ‘result[ed] from a physical impairment.’”
In one instance, Williams claimed her request to have a female deputy search her during a “shakedown” was denied “despite the presence and availability of a female deputy.” Wil liams alleged the resulting search from a male deputy was “highly ag gressive,” and caused bruising and “pain for several days,” and that the deputy “mocked Ms. Williams and made light of his actions in searching herWilliamsperson.” was released after six months and subsequently brought a § 1983 action against the Fairfax Coun ty sheriff and two prison officials. The complaint asserted violations of the ADA, the Rehabilitation Act, the U.S. Constitution and state common law.
Charles ‘Charlie’ McGirt dies www.ymwlaw.com
Background
“Whether this is so constitutes a question of first impression for the fed eral appellate courts,” Motz noted.
Motz added that barring ADA cov erage for both “gender identity disor der” as it existed in 1990 and “gender dysphoria” could run afoul of the Con stitution.“Wehave little trouble concluding that a law excluding from ADA protec tion both ‘gender identity disorders’ and gender dysphoria would discrimi nate against transgender people as a class, implicating the Equal Protec tion Clause of the Fourteenth Amend ment,” Motz wrote.
RALEIGH, NC (Tuesday, August 30, 2022) Yates McLamb & Weyher (YMW) is pleased to announce that Wesley Jones, JD and Jamie Blue, PE/JD, have joined the firm as associates in the firm’s Raleigh office.
NORTH CAROLINA LAWYERS WEEKLY I September 12, 20226 / NEWS
She further alleged harassment by other inmates and that “prison deputies repeatedly harassed her re garding her sex and gender identity.”
MCGIRT / Longtime attorney
Motz said the court had to follow Congress’ direction and cited a 2008 amendment to the ADA instructing courts that the definition of disability “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent per mitted by the [ADA’s] terms.”
In 1990, the judge said, “gender identity disorders” did not include gen der dysphoria. At the time, the medi cal community did not acknowledge gender dysphoria as an independent condition or a subset of another condi tion. However, a gender identity disor der diagnosis marked being transgen der as a mental illness.
Kesha Williams spent six months incarcerated in the Fairfax County Adult Detention Center. A transgen der woman, Williams was initially assigned to women’s housing before being reassigned to the men’s section.
In evaluating Williams’ first claim, Motz said the ADA does not define “gender identity disorders” — and never mentions gender dysphoria.
berships included the Fourth Cir cuit Judicial Conference (Perma nent); the NC Bar Association; North Carolina Association of De fense Counsel; Federation of Insur ance & Corporate Counsel; David son County Bar Association; 22nd Judicial District; and the North Carolina Bar Association General Practice Hall of Fame – 2012 In duction Class.
Plausible inference
The ADA broadly defines “disabil ity” to include “a physical or mental impairment that substantially limits one or more major life activities of suchTheindividual.”sheriffdid not dispute that gender dysphoria falls within that definition. Rather, he relied on the
“The binary approach … flouts the case-by-case analysis federal law re quires,” Motz wrote. As such, the ma jority reversed the dismissal of the gross negligence claim against the sheriff.
As medical knowledge advanced, the American Psychiatric Association removed “gender identity disorders” from the DSM-5, and added “gender dysphoria” as a diagnosis that did not exist in 1990. That is defined as “clinically significant distress or im pairment related to gender incongru ence, which may include the desire to change primary and/or secondary sex characteristics.”
Williams posed two challenges to the lower court’s holding: that gender dysphoria is not a “gender identity dis order” and that, even if it were, it “re sults from a physical basis that places it outside the scope of the exclusion from ADA protection.”
The “ADA excludes from its protec tion anything falling within the plain meaning of ‘gender identity disorders,’ as that term was understood ‘at the time of its enactment,’” Motz wrote. “But nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a ‘gender identi ty disorder’ excluded from ADA protec tion. For these reasons, we agree with Williams that, as a matter of statutory construction, gender dysphoria is not a gender identity disorder.”
Requests for accommodations includ ing the ability to shower privately from the other inmates and for body searches to be conducted by a female deputy were denied.
Continued from 1 ► Continued from 1 ►
He was a member of the First First Presbyterian Church in Lex ington, Delta Theta Phi, and in volved in other community organi zations and endeavors.
because of all of the advantages of living there and raising your fam ily there, but I also wanted to as sociate with attorneys who were highly qualified and possessed all of the skills and abilities of the best of any big city lawyer who genuinely cared about their clients and in promoting their cause while exhibiting the finest qualities of professionalism.”AddedInabinett: “Charlie’s en cyclopedic knowledge of the law, his dedication to research and preparation, and how to apply that knowledge in practical ways to solve client’s problems was amaz ing. His unwavering friendship and loyalty to his family, commu nity, clients and law firm will be greatly missed.”
Mr. Jones received his bachelor’s degree from The University of Georgia, and his juris doctorate from Regent University School of Law. He clerked for the Honorable Chris Dillon on the North Carolina Court of Appeals from 2020 to 2022.
“Thus, although the ADA specifi cally lists a number of exclusions from the definition of “disability,” that list does not include gender dysphoria,” Motz wrote. “To determine whether ‘gender identity disorders’ includes gender dysphoria, we must look to the meaning of the ADA’s ‘terms at the time of its enactment.’”
Mr. Blue received his bachelor’s degree from Clemson University and his juris doctorate from the Norman Adrian Wiggins School of Law, Campbell University. He worked 19 years as a professional engineer before law school.
The district court agreed with the defendant, holding that the exclusion applied to Williams’ gender dysphoria and barred her ADA claim.
McGirt was once asked why he chose to practice law in Davidson County. He responded, “I wanted to practice law in a smaller town
PROTECTION / Gender dysphoria covered by ADA
The effect of this ruling on nurses and medical malpractice cases in North Carolina raises many ques tions, including what procedure will be when nurses and physicians disagree on proper treatment of a patient.
Byrd v. Marion General Hospital was brought to the court of appeals following a medical malpractice case in which a 3-year-old suffered per manent brain damage, cerebral palsy and profound developmental delay due to the procedure.
— Joan H. Feldman, Editor/Publisher, Attorney at Work
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ders unless it is apparent that injury wouldTheresult.Supreme Court’s ruling on the Gullatte case now brings that prec edent into question.
In 2018, a trial court jury ruled in favor of the defense after the trial
The overturning of Byrd now calls for a new trial for the case between Gullatte and the Charlotte-Mecklen burg Hospital Authority.
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The resulting ruling created a precedent that nurses cannot be held liable for executing physician or
“Byrd was a case that was decided back when advanced practice nurses like CRNAs didn’t even exist,” Kurth, who is also with Edwards Kirby Law firm, said. “The justices that sat on the court at that time [of Byrd] couldn’t even conceive the way that
Learn more and see additional resources at
HELPING LEGAL PROFESSIONALS EVOLVE AND THRIVE
“Our primary concern for my client was making sure that the court didn’t upset the statutory scheme that governs doctors and nurses,” Mitch Armbruster, attorney for North Caro lina Society of Anesthesiologists, said. “And that includes the concept of physician supervision, which is part of North Carolina law. So, we were pleased to see that the majority does recognize that nurses have to work under physician supervision, though at the end of the day, I think the deci sion might create a little uncertainty.”
The plaintiffs appealed the trial court’s decision and the N.C. Supreme Court overturned Byrd v. Marion General Hospital, stating that even in circumstances where a registered nurse is discharging duties and re sponsibilities under the supervision of a physician, the nurse may be held liable for negligence and for medical malpractice if the registered nurse is found to have breached the applicable professional standard of care.
Justice Tamara Barringer and Chief Justice Paul Newby dissented on the opinion; Justices Samuel Er vin IV and Philip Berger Jr. did not participate in the consideration or de cision of the opinion.
medicine is practice today and the role that nurses play today – which they did not play back in the time for. So, our case, which applies to these facts, the court overturned Byrd and in our view, made the case law more consistent with the way that medicine is practiced today and recognizes the significant contributions of nurses, es pecially advanced practice nurses like CRNA.”
“
“The anesthesia that was given to her is well known to have cardiovas cular side effects, the most significant being on the cardiac output, and she already had a very low cardiac out put,” said Edwards, who is a partner at Edwards Kirby LLP in Raleigh, N.C. “So, they started the anesthesia by mask and her cardiac output – not surprisingly – went down, and even tually her heart stopped, and she had to be resuscitated. Her resuscitation lasted about 13 minutes.
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SUPREME COURT / N.C. Supreme Court tosses precedent
“We have certain evidence about what the CRNA should have done,” Mary Kathryn Kurth, an attorney for the Gullatte family, said. “That evidence was not allowed by the judge because the judge was applying a case called Byrd which was good law in North Carolina, and essentially said that when a nurse is following doctor’s orders, there is no liability. So, in applying Byrd and another case called Daniels to this case, the choice of anesthesia was a choice by the anesthesiologist and the anesthe siologist alone. So, the CRNA had no liability for that choice of anesthesia and administration of anesthesia.”
We were pleased to see that the majority does recognize that nurses have to work under physician supervision, though at the end of the day, I think the decision might create a little uncertainty.”
Mitch Armbruster, attorney for North Carolina Society of Anesthe siologists
deprivation led to permanent dam age.“There were a number of allega tions of negligence, but the core alle gations were that they use the wrong anesthesia given by the wrong meth od,” said John Edwards, attorney for the Gullatte family. “In other words, they gave the anesthesia by mask, as opposed to by IV – because there are types of anesthesia that you can give by IV that have very little or no car diovascularGullatte’seffects.”family went to trial court against Doyle, VanSoestbergen, the Charlotte-Mecklenburg Hospital Authority, and two other physicians that treated Gullatte.
judge blocked testimony that called into question VanSoestbergen’s deci sion in Gullatte’s case, citing a case from 1932 called Byrd v. Marion Gen eral Hospital, 202 N.C. 337.
“And at the end of the resuscita tion, they were able to get her heart beat back. But at that point, because of blood and oxygen deprivation to the brain, Amaya suffered a permanent and very serious brain injury.”
NORTH CAROLINA LAWYERS WEEKLY I September 12, 2022 OPINION DIGESTS / 7
Where the trial court addressed defendant personally, ensured that defendant understood the plea agreement into which he had en tered, and heard a statement of the facts proffered by the state, to which defendant made no ob jection, defendant has no right to appeal from his guilty plea and we see no merit in his petition for a writ of certiorari in which he as serts that the state’s factual basis did not support the commission of each offense reflected in the plea transcript.
Jury & Jurors – Murder of a Child –Guardian ad Litem Application
We find no error in defendant’s convictions of murder and heroin possession.Thetrial court did not abuse its
Guilty Plea – Appeals – Factual Basis
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state; James Glover for defendant. 2022-NCCOA-438
theNojuror.error.
discretion in determining that a juror responding to a guardian ad litem flyer did not make it impos sible for defendant to attain a fair and impartial verdict, particularly in light of the overwhelming evi dence, including heroin found in defendant’s house, the child’s trau matized body which exhibited head injuries which resulted in his death, and defendant’s statements that he had “banged” the child’s head.
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We find no error in defendant’s convictions for first-degree murder and first-degree sexual offense.
Criminal Practice
State v. Roach (Lawyers Week ly No. 012-282-22, 12 pp.) (Fred Gore, J.) Appealed from Greene County Superior Court (Imelda Pate, J.) Daniel Mosteller for the
After defendant was found guilty of the first-degree murder of a twoyear-old child and of possession of heroin, it was revealed that one of the jurors had responded to a guard ian ad litem flyer she had found in the jury room (the flyers were all over the courthouse). Before the tri al court, defendant asked only that the juror be removed and replaced with one of the alternate jurors; he did not – as he does on appeal – ask for a mistrial. Even if we were to presume the issue of mistrial were properly before us and an allowable remedy, defendant has not demon strated error on the part of the trial court or his counsel, and he has not demonstrated prejudice.
Criminal Practice
Constitutional – Ineffective Assis tance Claim – Confrontation Clause – Shell Casing Found
Further, we conclude defendant’s counsel was not ineffective in fail ing to seek such a drastic remedy on defendant’s behalf, as failure to ask for a mistrial over the flyer was not an error, much less one that was so serious as to deprive defendant of a fair trial in light of the extensive evidence against him. We also note defendant’s counsel had previously questioned the juror during jury selection regarding her work at the children’s hospital, which included working on a few occasions with doctors involved in the case. Thus, defendant had already had a full opportunity to question this par ticular juror regarding any poten tial bias arising from her work with children, and defendant accepted
According to a deputy’s testimo ny, when a murder victim’s family was cleaning up the room in which she had been fatally shot, a shell casing apparently fell out of some clothing. The family members’ out-of-court statements were not hearsay because they were not ad mitted for the truth of the matter asserted – the location of the shell casing – but to explain the deputy’s subsequent actions in returning to the scene and collecting the shell casing. Defense counsel’s failure to raise a Confrontation Clause issue did not constitute ineffective assis tance.
State v. Stacks (Lawyers Week ly No. 012-283-22, 10 pp.) (Donna Stroud, C.J.) Appealed from For syth County Superior Court (Stuart Albright, J.) Sherri Horner Law rence for the state; Lisa Miles for defendant. 2022-NCCOA-440
Criminal Practice
invtitle.com Capable. Experienced.Committed.Invested. Residential Title Insurance • Approved-attorney advocates • Underwriting support from a bench of title attorneys with 250 combined years of experience • In-person & online CLE & CPE • Superior claims services • Innovative technology solutions Commercial Title Insurance • Single point of contact from search to recording • Coordination of searches • Multi-state & multi-site transactions • Escrow & disbursement services 1031 Exchanges | Trust Account Reconciliation Services
Section 36C-5-505(a)(3) provides in part, “(a) Subject to the other applicable law, whether or not the terms of a trust contain a spend thrift provision . . ., the following rules apply: . . . . (3) After the death of a settlor, and subject to the set tlor’s right to direct the source from which liabilities will be paid, the property of a trust that was revoca ble at the settlor’s death is subject to claims of the settlor’s creditors . . . to the extent that the settlor’s
Given this reversion, plaintiff’s claim for a resulting trust also fails.
Eastpointe Human Services v. North Carolina Department of
Even though plaintiff had chron ic medical conditions – hyperten sion, diabetes and obesity – which, if left uncontrolled, could cause a syncopal episode, plaintiff was not feeling sick or nauseated on the day of his fall at work until he mixed a second batch of chemicals con sisting of acid powder and Dytek, which has a “very strong odor.” At that point, plaintiff began to feel sick and nauseated and tried to get to a cooler place but then found himself at the bottom of a staircase. Competent evidence supports the Industrial Commission’s conclu sion that any idiopathic condition of plaintiff’s combined with risks attributable to his employment such that his injury arose from his employment.
State v. Shade (Lawyers Weekly No. 012-284-22, 8 pp.) (John Ar rowood, J.) (Hunter Murphy, J., concurring in result only without separate opinion) Appealed from Rutherford County Superior Court (Thomas Davis, J.) Sarah Cibik for the state; Kimberly Hoppin for de fendant. 2022-NCCOA-439
We affirm the Commission’s
ConditionsFallCompensationWorkers’–UnknownCause–Idiopathic–ChemicalFumes
When defendant Robert Jack son killed his wife, Lena Jackson, the couple’s trust became both ir revocable and spendthrift. Lena’s estate may not pierce the spend thrift provision of the trust so as to execute on the $500,000 wrongful death judgment obtained against Robert.Weaffirm the trial court’s judg ment denying the plaintiff-exec utrix’s request to pierce the trust under G.S. § 36C-5-505.
Real Property
Pursuant to G.S. § 31A-4, a “slayer” is deemed to have died immediately prior to his victim’s death for purposes of excluding the slayer from his victim’s estate.
We affirm the trial court’s grant of the counties’ motion to dismiss.
Even if plaintiff’s claim were not time-barred, it would nevertheless fail pursuant to the terms of the contract between the counties and ENHM. The contract provided that, if ENHM ceased to exist, the title to the land and buildings thereon would revert to the counties. Pursu ant to the terms of a 2012 merger, plaintiff was the surviving entity. Since ENHM ceased to exist, the property reverted to the counties.
award of benefits.
Wright v. Jackson (Lawyers Weekly No. 012-286-22, 6 pp.) (Al legra Collins, J.) Appealed from Cumberland County Superior Court (James Ammons, J.) Eric Dit more for plaintiff; Isaac Halverson, Lonnie Player and Stacey Tally for defendants. 2022-NCCOA-442
Pursuant to the terms of the couple’s trust, upon Lena’s death, the trust became irrevocable and Robert became the sole trustee of the trust. Although Robert was subsequently found to be a “slayer” and “deemed to have died” immedi ately prior to Lena’s death, § 31A4 deems the slayer to have prede ceased his victim only for purposes of excluding the slayer from his vic tim’s estate. The statute does not indulge the fiction that the slayer’s date of death is other than the ac tual date of death, but merely es tablishes a presumption to exclude theAsslayer.thetrust became irrevocable at the time of Lena’s death, and Robert is not in fact dead, § 36C5-505(a)(3) is inapplicable to the facts of this case, and the trust’s assets cannot be used to satisfy the outstanding civil judgment against Robert.Affirmed.
Trusts & Estates
Continued from 8 ► See Page 11 ►
probate estate is inadequate to sat isfy those claims . . . unless barred by applicable law.”
Spendthrift Trust – Slayer Benefi ciary – Presumed Predeceased – No Piercing
Defendants Nash and Edge combe Counties clearly breached their contract with the EdgecombeNash Mental Health Disabilities and Substance Abuse Area Author ity (ENHM) when – once ENHM’s debt was paid – the counties failed to transfer title to the land on which ENMH had built its facility. How ever, that breach occurred in 1997. Plaintiff is ENMH’s successor via merger. Plaintiff’s claim is against two local governmental entities; as such, it is subject to a two-year stat ute of limitations, G.S. § 1-53(1). Consequently, plaintiff’s 2017 quiet title action is time-barred.
NORTH CAROLINA LAWYERS WEEKLY I September 12, 202210 / OPINION DIGESTS
Defendant’s petition is denied and his appeal dismissed.
Stewart v. Goulston Technolo gies, Inc. (Lawyers Weekly No. 012-285-22, 9 pp.) (Lucy Inman, J.) Appealed from the Industrial Commission. Mark Sumwalt, Rich ard Anderson and Lauren Walker for plaintiff; Duane Jones and Neil Andrews for defendants. 2022-NC COA-441
Quiet Title Action – Contract – Stat ute of Limitations – Mental Health Authority
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Portee v. N.C. Department of Health & Human Services (Law yers Weekly No 012-288-22, 6 pp.) (Chris Dillon, J.) Appealed from
NORTH CAROLINA LAWYERS WEEKLY I September 12, 2022 OPINION DIGESTS / 11
The pro se petitioner gave re spondent neither notice nor copies of petitioner’s documents prior to a hearing before an administrative law judge. The ALJ was patient, even going so far as to walk peti tioner through building a founda tion for a piece of evidence; howev er, petitioner made no offer to place her documents into evidence. The ALJ dd not prevent petitioner from presenting her evidence.
We affirm summary judgment for defendant.
ProAdministrativeSeLitigant–Documentary Evi dence
NAME Hon. Sharon Barrett Sarah V. Corley Michael W. Drye Anne M.KenScottMichaelRobertJonathanLynnWilliamThomasRichardT.HenryReneDaileyJosephDonaldRobertRaymondJasonWayneSteveMelindaLeAnnJenniferDuvoisinS.BrearleyNeaseBrownM.EvansDunnP.HuckelB.JamesE.OwensJr.A.BeasonH.BeskindChamblissJ.DerrStempleTrehyW.GorhamAlanPittmanD.ConnerC.DuncanA.EaglesG.GullickRHarkavyA.BrinsonA.SwannC.HartMcCotterJr.AnnAnderson PROFILE ONLINE AT
Domestic Relations
Cumberland County Superior Court (Mary Ann Tally, J.) Quintin Byrd for petitioner; Erin Gibbs for respondent. 2022-NCCOA-470
We affirm judgment for respon dent.The ALJ’s order explains that petitioner attempted to hand over voluminous records for the ALJ to sift through. It is not the ALJ’s duty nor prerogative to present one side’s case – pro se litigants includ ed.
“Clara” and “Lillian” were re moved from the respondent-Moth er’s care on the grounds of (1) ne glect and likelihood of continued neglect, (2) failure to make reason able progress to correct the condi tions which led to removal of the children, (3) failure to pay a rea sonable portion of the cost of care for the children although physically and financially able, (4) incapabil ity of providing for the proper care and supervision of the children and (5) willful abandonment. Although only one ground is required to up hold the trial court’s termination of Mother’s parental rights, the record shows that Mother (1) was aware of the services she needed to complete to reunify with her chil dren yet took no action towards completing her case plan or main taining contact with DSS to inquire about her children’s welfare, (2) evinced repeated inaction towards providing a safe environment for her children, (3) failed to complete
Health & Human Services (Law yers Weekly No. 012-287-22, 27 pp.) (April Wood, J.) Appealed from Dup lin County Superior Court (Stanley Carmical, J.) Jonathan Charleston and Jose Coker for plaintiff; Nicho las Ellis, Vincent Durham, Dudley Whitley, Greg Crumpler and Brad ley Wood for defendant. 2022-NC COA-459
Parent & Child – Permanency Plan ning Order – Reunification Elimina tion – Drug Use
Elite Vehicles, Inc. v. Lee (Law yers Weekly No. 012-289-22, 11 pp.) (Fred Gore, J.) Appealed from Iredell County Superior Court (Wil liam Long, J.) Joseph Pellington and John Veach for plaintiffs; Nan cy Litvak and Erik Rosenwood for defendant. 2022-NCCOA-460
Domestic Relations
The respondent-Mother argues that the trial court erred in its find ings about her substance abuse because “there were never any re ports that [her substance abuse] had detrimentally affected her chil dren.” We are unaware of any prec edent in permanency panning cases holding that the trial court must make a specific finding that the re spondent-parent’s illegal drug use is detrimental to the child. In this case, the trial court could reason ably infer that Mother’s substance abuse would be contrary to the chil dren’s health and safety.
Design–MisappropriationTort/NegligenceofTradeSecretsPontoonBoat–SwimPlatform–OtherPatentedDesigns
substance abuse treatment, (4) failed to provide financial support towards the children despite hav ing periodic income, and (5) failed to contact the children for 361 days while they were in out-of-home care.
Parent & Child – Termination of Pa rental Rights – Multiple Grounds
Plaintiffs designed a swim plat form for a pontoon boat, and they claim their defendant-shareholder improperly shared the design with the shareholder’s financial advisor. A competitor developed a similar swim platform; however, plaintiffs cannot make out a claim for mis appropriation of trade secrets be cause they cannot show that their swim-platform design derived “in dependent actual or potential com mercial value from not being gener ally known or readily ascertainable through independent development or reverse engineering by person s who can obtain economic value from its disclosure or use.” G.S. § 66-152(3)(a).Infact,plaintiff Richards ac knowledged that there had been various swim platform designs –many of them patented – for more than 50 years. Richards agreed that it was possible that someone from the competitor had reached the design concept through inde pendent thinking outside of Rich ards’ design. Plaintiffs have failed to show the existence of a genuine issue of material fact as to whether Richards’ design was a trade secret.
In re C.L.R. (Lawyers Weekly No. 012-290-22, 4 pp.) (Chris Dillon, J.) Appealed from Guilford County District Court (Angela Foster, J.) Mercedes Chut for petitioner; Amy Flanary-Smith for guardian ad li tem; Sydney Batch for respondent. 2022-NCCOA-461
We affirm the permanency plan Calendars & Bios Online for the State’s Premier Mediators ncmediators.org/ann-andersonncmediators.org/charles-mccotterncmediators.org/scott-hartncmediators.org/michael-swannncmediators.org/robert-brinsonncmediators.org/jonathan-harkavyncmediators.org/lynn-gullickncmediators.org/william-eaglesncmediators.org/thomas-duncanncmediators.org/richard-connerncmediators.org/alan-pittmanncmediators.org/henry-gorhamncmediators.org/rene-ellisncmediators.org/dailey-derrncmediators.org/joseph-chamblissncmediators.org/donald-beskindncmediators.org/robert-beasonncmediators.org/raymond-owensncmediators.org/jason-jamesncmediators.org/wayne-huckelncmediators.org/steve-dunnncmediators.org/melinda-evansncmediators.org/leann-nease-brownncmediators.org/jennifer-brearleyncmediators.org/anne-duvoisinncmediators.org/michael-dryencmediators.org/sarah-corleyncmediators.org/sharon-barrett
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We affirm the termination of Mother’s parental rights.
Even though there is a pending partition action in India regard ing title to real property in Uppal, the trial court correctly determined that the equitable distribution ac tion before it was not barred by the pending action in India.
– Danger to Others – Forced Medication
We affirm the trial court’s equi table distribution order.
ning order, which eliminated DSS’s obligation to make efforts towards reunification.
Delinquency proceedings under the Juvenile Code are civil in nature; accordingly, when the judgment from which a party attempts to appeal has not been entered by the trial court, the appeal must be dismissed. Be cause the record on appeal contains only unsigned and unfiled adjudica tion and disposition orders, we dis miss this appeal without prejudice to appellant timely taking an appeal, consistent with G.S. § 7B-2602, upon entry of written adjudication and disposition orders or, to the extent the right to appeal has been lost, fil ing a petition for writ of certiorari to obtain appellate review.
At the time of the hearing on the petition to terminate respondents’ parental rights, the primary plan for “Kevin” and “Jim” was adoption; ac cordingly, the trial court’s consider ation of access to adoption resources was effectively a consideration of whether termination of parental rights would aid in the accomplish ment of the permanent plan, as re quired by G.S. § 7B-1110(a)(3). Con trary to the respondent-mother’s arguments, the trial court is not re quired to make written findings of fact that directly track the language of the statute.
Given that, as of the hearing on the petition to terminate the respon dent-Father’s parental rights, held on 2 June and 14 July 2021, (1) no date had been set for Father’s trial for felony sexual abuse of a minor child, (2) Father’s trial could not be scheduled until at least five to six months after the termination hear ing, (3) Father had been incarcerated for nearly two years preceding the hearing because of charges pending since 2015, and (4) no evidence was presented giving rise to any expecta tion of his release from incarceration in the foreseeable future, the trial court did not err in concluding there was a reasonable probability that Father’s unavailability would contin ue for the foreseeable future. Father does not contest the other elements of dependency.
did exhibit behavioral issues in a prior placement, the IPA report and other evidence presented to the trial court were sufficient to support the trial court’s finding that the juve niles were adoptable.
We affirm the termination of Fa ther’s parental rights on grounds of dependency.Termination of parental rights based on dependency does not re quire that the parent’s incapability be permanent or that its duration be precisely known. Instead, this ground for termination merely requires that there is a reasonable probability that such incapacity will continue for the foreseeable future.
The trial court concluded, “4. A pending suit in a foreign country will not bar this Court from enter ing a judgment. North Carolina courts have not dealt with what a court should do when a similar ac tion is pending in a foreign country. However, other courts facing simi lar issues have held the court had jurisdiction when the courts of that state had at least an equally signifi cant interest in the property. . . .
In re I.B.M. (Lawyers Weekly No. 012-291-22, 24 pp.) (Darren Jackson, J.) Appealed from David son County District Court (Carlton Terry, J.) Sheri Woodyard for pe titioner; Michael Mitchell and An drew Benton for guardian ad litem; Richard Croutharmel for respon dent. 2022-NCCOA-462
Regarding adoptability, although the respondent-father asserts that Kevin’s behavioral issues were sig nificant and contrary to the trial court’s findings, an independent psy chological assessment (IPA) report indicates that Kevin has advanced social and intellectual skills for his age. Additionally, although Kevin
Domestic Relations
Dismissed without prejudice.
Parent & Child – Termination of Paren tal Rights – Adoption
Equitable Distribution – Classification – Foreign Property – Indian Litigation
In re M.E.W. (Lawyers Weekly No. 012-295-22, 4 pp.) (Toby Hampson, J.) Appealed from Guilford County District Court. Vanessa Totten for the state; Katy Dickinson-Schultz for defendant. 2022-NCCOA-467
We affirm the trial court’s invol untary commitment order.
fied that he has no mental illness. The trial court heard testimony that defendant had been diagnosed with schizophrenia, refused medication, expressed his desire to not be forcemedicated, became agitated, and assaulted multiple hospital staff members during a forced medica tion administration. The trial court also heard testimony about previous episodes in which law enforcement officers encountered respondent on the street with a sword, trying to “slay demons,” which respondent ex plained were Defendant’speople.behavior presents a substantial risk of serious bodily harm, and evidence of his refusal to accept medication and denial of his diagnosed mental illness also indi cate a reasonable probability that the conduct will be repeated.
Parent & Child – Termination of Pa rental Rights – Dependency – Incar ceration – Foreseeable Future
During the parties’ marriage, the defendant-wife bought five gold bars weighing 33 ounces. The par
Parent & Child – Abuse & Neglect Adjudication – Insufficient Evidence – Child Abuse Conviction
Although defendant contends that he merely defended himself during a forced medication, he also testi
Under the conditions of his pretri al release, which have been in effect for Kylie’s entire life, Father has not been allowed unsupervised contact with children. In September 2019, Father was arrested for failing to ap pear at a court date on his criminal charges and remained incarcerated awaiting trial through the termina tion hearing in June and July 2021. Additionally, prior to his incarcera tion, Father was living “place to place” and did not have safe or stable housing.Aparent’s incarceration can lead to a finding of dependency as grounds forAttermination.thetime of the termination hearing, Father was awaiting trial on at least one felony and had been incarcerated for nearly two years. The termination hearing was held on 2 June and 14 July 2021 and Fa ther’s criminal case could not be set until 2022. The delay in Father’s tri al is at least partially due to Father’s own actions: his failure to appear for the initial setting of his trial result ed in his incarceration and delayed the ultimate setting of a trial date. He has also requested new counsel, which has resulted in further delay.
In re J.S. (Lawyers Weekly No. 012-296-22, 13 pp.) (John Arrowood, J.) Appealed from Mecklenburg County District Court (Roy Wiggins, J.) Keith Smith for petitioner; Rob ert Ewing and Sydney Batch for re spondents; Ashley Edwards and Pa tricia Adcroft for guardian ad litem. 2022-NCCOA-463
The evidence before the trial court consisted of (1) the shuck from a criminal case in which the respondent-Mother pleaded guilty to willful or negligent child abuse and (2) the testimony of a DSS su pervisor who reviewed the file but was not involved in the investiga tion. The record does not contain any factual basis proffered for Mother’s guilty plea. It is impos sible to ascertain whether the facts giving rise to Mother’s guilty plea are the same or similar facts as those in the petition to adjudicate “Kevin” abused and neglected. In fact, the trial court made no find ing that the offense to which Moth er pleaded guilty was based on the same conduct alleged in the peti tion.We vacate the trial court’s ad judication order and remand this matter to the trial court to (1) make findings based on the existing re cord before it that are supported by the competent evidence of re cord, and (2) make a new determi nation as to whether or not those facts support a conclusion Kevin is abused and/or neglected based on the conditions alleged in the peti tion. Because of our result here, we also vacate the trial court’s disposi tion order. If the trial court deter mines there is evidence to support an adjudication of abuse or neglect, the trial court should enter a new order addressing disposition. If the trial court determines the evidence supports neither adjudication of Kevin as abused nor neglected, it shall dismiss the petition.
NORTH CAROLINA LAWYERS WEEKLY I September 12, 202212 / OPINION DIGESTS
Grounds existed pursuant to G.S. § 7B-1111(a)(6) to terminate Father’s parental rights.
In re K.L. (Lawyers Weekly No. 012-292-22, 15 pp.) (Toby Hamp son, J.) Appealed from Cumber land County District Court (Cheri Siler-Mack, J.) Patrick Kuchyt for petitioner; Christopher Watford for respondent; Matthew Phillips for guardian ad litem. 2022-NC COA-465
Domestic Relations
Criminal Practice
Civil InvoluntaryPracticeCommitment
Domestic Relations
We affirm the termination of re spondents’ parental rights.
“5. The Parties have ties to North Carolina that are equal or greater than their ties to India be cause they are both employed here, showed no intent to move back to India, and the vast majority of their property except the Uppal prop erty is located in North Carolina. North Carolina has a greater inter est in this action than India. Thus, this Court can proceed despite the pending suit in India over the Up palTheproperty.”trialcourt also concluded that comity would not prevent it from taking action, given that no final judgment had been reached in India and the judgment in India would not decide the issue of equi tableThesedistribution.arecorrect statements of the law regarding comity and es toppel, and the trial court correctly applied it where no final judgment had been entered. The trial court’s conclusion that it had jurisdiction to distribute the value of the Uppal property as marital property while international litigation was pend ing was not error.
For 12 months, the plaintiffhusband made post-separation payments on the parties’ marital vehicle. However, plaintiff had ex clusive possession of the vehicle for eight of those 12 months. Given plaintiff’s exclusive post-separation use of the vehicle and the distri bution of its sale proceeds to him, plaintiff was not entitled to a credit for the post-separation payments. Nor was he entitled to consider ation of the payments as a distri butional factor; nevertheless, the trial court did consider plaintiff’s post-separation payments as a dis tributional factor.
Juvenile Delinquency – Appeals – Un signed & Unfiled Orders
In re L.L. (Lawyers Weekly No. 012-294-22, 9 pp.) (John Arrowood, J.) Appealed from Granville County District Court (John Davis, J.) John Tillery for the state; David Andrews for respondent. 2022-NCCOA-466
Continued from 11 ► See Page 13 ►
In making its decision to cease reunification efforts and elimi nate reunification from the per manent plan, the trial court relied on Mother’s continued substance abuse, repeated failure to follow court orders, poor decision-making skills, blaming behaviors, and the juveniles’ expressed desire for a stable home with a relative other than Mother. Although Mother had shown improvement under the plan, as exemplified by her completing parenting, domestic violence, and substance abuse classes, obtaining a DVPO against the children’s fa ther, and securing a stable job and housing, all of which the trial court acknowledged in its order, it is not the role of this court to reweigh the evidence.
In re K.A.S. (Lawyers Weekly No. 012-293-22, 14 pp.) (Lucy Inman, J.) Appealed from Cleveland County District Court (Jeannette Reeves, J.) Charles Wilson for petitioner; Jacob Wharton and Ryan Niland for guard ian ad litem; Annick Lenoir-Peek and Anné Wright for respondents. 2022-NCCOA-464
Domestic Relations
ties separated in December 2015, but they both presented evidence of the gold’s value as of March 2018. Considering the fluctuation of the value of gold, the trial court declined to distribute the bars because it could not value them.
Jonna v. Yaramada (Lawyers Weekly No. 012-297-22, 31 pp.) (Allegra Collins, J.) Appealed from Wake County District Court (Sam Hamadani, J.) Srinivas Jonna, pro se; Sudha Yaramada, pro se. 2022-NCCOA-468
We affirm the Industrial Commission’s rejection of plaintiff’s negligence claim.
Prisons & Jails
NORTH CAROLINA LAWYERS WEEKLY I September 12, 2022 OPINION DIGESTS / 13
The contract between the parties – two separate radio stations –required defendant to maintain its FM license and to rebroadcast some
of plaintiff’s programming; plaintiff was required to share its advertising revenue. After defendant breached the contract by losing its FM license (and consequently went off the air), plaintiff allegedly failed to pay defendant the minimum revenue-sharing amount set out in the contract. However, defendant filed its breach-of-contract counterclaim without complying with the contract’s requirement of notice and an opportunity to cure default.
Affirmed.
We affirm the trial court’s dismissal of defendant’s counterclaim.
Northstar Broadcasting Corp. v. Arohi Media, LLC (Lawyers Weekly No. 012-298-22, 6 pp.) (Chris Dillon, J.) Appealed from Durham County Superior Court (Josephine Kerr Davis, J.) Nichole Hatcher for plaintiff; Joseph Nanney for defendant. 2022-NCCOA-469
Prentice v. North Carolina Department of Public Safety (Lawyers Weekly No. 012-299-22, 8 pp.) (John Arrowood, J.) Appealed from the Industrial Commission. Steven Prentice, pro se; Benjamin Gurlitz for defendant. 2022-NCCOA-471
STCA – Work Boots – Property Inventory
With respect to plaintiff’s claim of lost property, although he presented DC-160 forms dated 4 February 2019, he did not present any DC-160 form from the date of the alleged incident: 5 February 2019. Plaintiff presented no documentary evidence to support his allegations of lost property (prescription glasses that allegedly took ten months to replace). Plaintiff’s testimony alone is insufficient to establish his claim, and the DC160 forms do not conclusively establish that defendant breached its duty of reasonable care.
– Notice & Cure Provision – Radio Stations
sufficient – without documentary or other objective evidence – to establish that the defendant Department of Public Safety owed him a duty to provide specific footwear.
As neither party offered evidence of the value of the gold bars on the date of separation, the trial court was not obligated to value the gold bars. Furthermore, the trial court did not abuse its discretion by considering defendant’s possession of the gold bars as a distributional factor.With respect to the balance owed on a Citi Dividend credit card, defendant listed in her equitable distribution inventory affidavit (EDIA) that there was $1,731 in separate debt on the Citi Dividend card, but she specifically noted that she did not stipulate to the classification, amount, or distribution of this debt. Plaintiff also listed this amount in his EDIA, but cites to no evidence that would have allowed the trial court to classify and value the debt. The trial court was thus not obligated to classify or value the debt.
BreachContractCounterclaim
Although plaintiff did not make post-separation contributions to his IRA, the trial court found that the IRA’s post-separation appreciation of $7,766 came about because of plaintiff’s active management of the account. Since the trial court’s findings are supported by competent evidence, the trial court did not err by determining that the evidence was sufficient to rebut the divisible property presumption and that the post-separation appreciation on plaintiff’s IRA account was his separate property.
The plaintiff-prisoner’s testimony regarding the conditions of his janitorial job and his attempts to obtain orthopedic boots was in-
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Prior to the legalization of in dustrial hemp, our appellate courts firmly established that the smell or sight of marijuana was sufficient to create probable cause. Defen dant argues that our General As sembly’s legalization of industrial hemp requires a change in how marijuana cases are investigated and prosecuted in this state.
We affirm the domestication of the $600,337.61 Florida judgment against defendant.
Criminal Practice
Criminal Practice
Search & Seizure – Traffic Stop –Probable Cause – Marijuana Odor –Industrial Hemp
State v. Michelson (Lawyers Weekly No. 012-306-22, 7 pp.) (John Arrowood, J.) Appealed from Buncombe County Superior Court (Steve Warren, J.) Kayla Britt for the state; Edward Eldred for defen dant. 2022-NCCOA-478
Setzer v. Monarch Projects LLC (Lawyers Weekly No. 012-300-22, 10 pp.) (Chris Dillon, J.) Appealed from Wake County Superior Court (Paul Ridgeway, J.) Angela Farag Craddock for plaintiff; John Kirby for defendant. 2022-NCCOA-472
Probation Revocation – Violation Report – Defendant’s Admission
State v. Portillo-Tobias (Lawyers Weekly No. 012-302-22, 11 pp.) (Valerie Zachary, J.) Appealed from Johnston County Superior Court (Thomas Lock, J.) Kindelle McCul len for the state; Anne Gomez for defendant. 2022-NCCOA-481
Defendant argues that he “did not receive the benefit of his plea bargain” because, per his plea agreement, he was supposed to re ceive a maximum sentence of 65 months’ imprisonment, and the trial court’s judgments provided a maximum of 74 months. The trial court may have come to the wrong mathematical conclusion while de termining in open court how to type out the sentence to which defen dant had agreed via the plea agree ment. However, it is undisputed that defendant’s plea agreement constituted a time-served plea, that defendant was credited for time served, and, as a result, that defendant was released from de tention on the same day as the plea hearing. In other words, defendant did indeed receive the benefit of his plea bargain. Thus, even presum ing, arguendo, that the trial court committed error, defendant cannot show that this error has prejudiced him.We deny defendant’s petition for a writ of certiorari and dismiss his appeal.
We affirm the trial court’s denial of defendant’s motion to suppress.
We affirm the trial court’s grant of the defendant-builder’s motion to dismiss.
Bench Trial – Judge’s Colloquy – Jury Instructions
COA-479
– Due Process – Florida Attorney’s Withdrawal – Defendant’s Contact Info
Criminal Practice
Continued from 13 ► See Page 15 ►
We note that Defendant was aware that she was being repre sented by counsel in a lawsuit. If her counsel withdrew in April 2018 without telling her, a couple months of radio silence would lead a reasonable person to inquire as to status of a lawsuit against them—especially when exposed to hundreds of thousands of dol lars of personal liability. Lawsuits do not just disappear. One call to the court, codefendants, or former counsel would have confirmed that the case against her was ongoing.
Even if service of process upon defendant was irregular, since she had actual notice of the Florida ac tion, the Florida judgment is not subject to collateral attack.
We affirm the revocation of de fendant’s probation.
The trial court took judicial no tice of records from the Florida court. Defendant argues that by taking judicial notice in its order without prior notification, the trial court did not give Defendant an op portunity to request to be heard on the matter. This is not so, as Defen dant could have been heard on this issue by filing a Rule 60 motion to set aside the order, yet chose not to.But even assuming the court erred, Defendant has failed to show prejudice. In fact, Defendant relies on many of these documents to ar gue her appeal and has not con tended that the filings relied upon by the trial court were inauthentic. Affirmed.
Defendant joined his brother’s fight with the victim, stabbing the victim several times. The trial court instructed the jury on assault with a deadly weapon with intent to kill inflicting serious injury, followed by a charge on the lesser included offense of assault with a deadly weapon inflicting serious injury. The trial court did not err when it then combined the two offenses for the remainder of the instruction, in which it defined “aggressor” and “excessive force.” Even if combin ing the instruction were error, de fendant has not shown prejudice.
However, the facts in this case closely resemble the facts in State v. Parker , 277 N.C. App. 531, 2021-NCCOA-217, disc. review de nied , 378 N.C. 366 (2021). Conse quently, as in Parker , we need not determine whether the scent or visual identification of marijuana alone remains sufficient to grant an officer probable cause to search a vehicle. The detective here pos sessed more than just the scent of marijuana to indicate defendant might have illegal substances within the vehicle.
State v. Mingo (Lawyers Weekly No. 012-305-22, 9 pp.) (Fred Gore, J.) Appealed from Guilford County Superior Court (William Wood, J.) James Bernier for the state; Les lie Rawls for defendant. 2022-NC
Jury Instructions – Assault Charges – Combined Definitions
NORTH CAROLINA LAWYERS WEEKLY I September 12, 202214 / OPINION DIGESTS
Criminal Practice
Civil RegistrationPracticeofForeign Judgment
We find no error in defendant’s conviction for assault with a deadly weapon.Incriminal bench trials, the judge is not required to set forth the law it will follow in the form of jury instructions or to make detailed findings of fact and con clusions of law. Nevertheless, the judge here articulated which jury instructions would apply.
Even though the prosecutor elicited one witness’s mention of defendant’s post-arrest silence, another witness’s mention of de fendant’s silence was unsolicited. The prosecutor did not emphasize or highlight the fact that defendant did not answer questions; addition ally, the prosecutor did not men tion either instance of defendant exercising his right to remain si lent in his closing argument. More over, there was ample evidence of defendant’s guilt: the victim identi fied defendant as the man who shot him, a vehicle matching a witness’s description was stopped mere min utes after the shooting, defendant was the passenger, the back pas senger side window of the car was shot out, and shell casings were found in the car.
Plea Agreement – Maximum Sen tence – Time Served
We note that the detective did
requirement that the state present evidence.
Shearon Farms Townhome Own ers Association II, Inc. v. Shearon Farms Development, LLC (Law yers Weekly No. 012-301-22, 8 pp.) (John Tyson, J.) Appealed from Wake County Superior Court (Mark Sternlicht, J.) Brian Edlin and Weldon Jones for plaintiff; John Benjamin and Jake Garris for defendant. 2022-NCCOA-473
We find no plain error in defen dant’s conviction for assault with a deadly weapon inflicting serious injury.The trial court instructed the jury on defense of another. The court did not plainly err when it failed to define “family member.” It is self-explanatory that defendant’s brother is his family member.
Constitutional – Defendant’s Silence – Plain Error Review
Due to the lack of emphasis placed on the potentially imper missible testimony by the prosecu tor and the presence of additional overwhelming evidence of defen dant’s guilt, we find no plain error in defendant’s conviction of assault with a deadly weapon with intent to kill inflicting serious injury.
There is no judicially estab lished or statutory script for the colloquy required for a trial judge to accept a criminal defendant’s waiver of his right to a jury trial. The colloquy in this case satisfied G.S. § 15A-1201 when the judge described defendant’s charge to him; informed defendant that he had “the absolute right” to a jury trial; explained to defendant that the court would substitute for the jury as factfinder if defendant waived his right; asked defendant whether he understood that “re gardless of [his] lawyer’s advice, it is ultimately up to [defendant] to decide whether or not [he] want[s] to waive” his right; and confirmed with defendant personally that he desired to waive his right. The trial judge thus sufficiently determined that defendant understood and ap preciated the consequences of his decision to waive the right to trial by jury.
On appeal, defendant argues that his probation officer’s viola tion report only alleged a failure to report rather than absconding supervision. However, defendant, through counsel, expressly admit ted to the allegations in the viola tion report, including specifically the allegation of absconding. De fendant’s admission waived any
Despite the fact that legal in dustrial hemp smells the same as marijuana, the combination of factors in this case – the scent of what a detective believed to be marijuana, defendant’s admission that he had “weed” in his vehicle, and the detective’s observation of a plastic baggy filled with what he concluded to be marijuana – suffi ciently established probable cause to search defendant’s vehicle.
Defendant contends that, in the underlying Florida action, she did not receive notice of the hearing on plaintiff’s motion for summary judgment because her attorney had withdrawn. However, the attorney gave the court and other parties what he believed were defendant’s physical and email addresses. If, as defendant argues, she had nev er lived at the physical address and had stopped using the email address, defendant failed to take reasonable steps to protect her in terests by providing the court with current contact information. De fendant’s due process rights were not violated in the Florida action.
assert identical claims against an other defendant.
State v. Jones (Lawyers Week ly No. 012-303-22, 10 pp.) (Toby Hampson, J.) Appealed from Ire dell County Superior Court (Jo seph Crosswhite, J.) John Tillery for the state; Candace Washington for defendant. 2022-NCCOA-477
Civil StandingPractice–Homeowners’ Associa tion – Faulty Construction Claims
In a prior appeal involving dif ferent defendants, a panel of this court held that the plaintiff-town home owners’ association lacked standing to assert claims for al leged casualty damages (arising out of construction defects) to indi vidual owners’ properties. We are bound by that panel’s ruling to hold that plaintiff also lacks standing to
Defendant does not argue that the trial judge erroneously con sidered an incorrect instruction; he only asserts that the judge in fringed on his right to appeal by neither explicitly reading the in structions into the record nor pro viding findings and conclusions in support of its verdict. Presuming that the trial judge knew and fol lowed the applicable law, we dis cern no error.
Criminal Practice
State v. Perez (Lawyers Weekly No. 012-304-22, 4 pp.) (Chris Dil lon, J.) Appealed from Pender County Superior Court (Richard Kent Harrell, J.) J.D. Prather for the state; Sarah Holladay for de fendant. 2022-NCCOA-480
Criminal Practice
Larceny – Doctrine of Recent Posses sion – PlayStation – Mistrial Motion
We find no error in defendant’s convictions for breaking and en tering, larceny after breaking and entering, felony conspiracy to com mit breaking and entering, obtain ing property by false pretenses, and attaining the status of habit ual felon. We dismiss defendant’s argument as to jail credit without prejudice to his ability to file a motion for an award of additional credit in the superior court.
In this case, handymen left the victim’s house unsecured for a short time. When they returned, the handymen saw defendant Jackie Rook and his father, Jackie Rook, Sr., in a car in the victim’s driveway. The Rooks claimed to be there to look at an air conditioner for use as scrap metal; however, the air conditioner was located in
Hostile Work Environment – Employer’s Knowl edge – Prior Incidents
Defendant also argues that his traffic stop was unreasonably pro longed. However, given the detec tive’s observations – seeing and smelling marijuana – and defen dant’s admission to having weed in the car, the detective had reason able suspicion to extend the traffic stop.Defendant cites State v. Ward , 364 N.C. 133, 694 S.E.2d 738 (2010): “Unless the State establish es before the trial court that anoth er method of identification is suf ficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of sci entifically valid chemical analysis is required.” However, the holding in Ward was specifically limited to N.C. R. Evid. 702, concerning testi mony by Assumingexperts.arguendo, the legal ization of industrial hemp war rants an expansion of the holding in Ward to include requiring a sci entifically valid chemical analysis on marijuana and industrial hemp, we need not make such a determi nation. Here, the detective had am ple reasonable suspicion to prolong the duration of defendant’s traffic stop.
No error in part; dismissed in part.
not see the baggy of marijuana un til defendant was ordered to exit his vehicle. The Fourth Amend ment is not violated when the po lice order the driver of a lawfully detained vehicle to exit the vehicle.
Police tracked the PlayStation’s serial number and seized it from GameStop. Officers then arrested defendant for the theft.
a trailer about 500 yards from the victim’s home. The Rooks then left theWhenproperty.thevictim returned home, the handymen told him about the Rooks. The victim discovered that his PlayStation and video games were missing, He reported the theft and his PlayStation’s serial number to law enforcement.
In any event, as plaintiff assert ed, a coerced apology would have left two questions entirely unad dressed: first, how the child devel oped these racial attitudes and the shockingly specific view that plain tiff was a “lazy ass black n*****” who “didn’t come to work,” and second, whether the child would remain a constant presence in the workplace. A serious and appropri ate response to an incident of this severity would have required a real reckoning with how it happened, how the employer would prevent it from recurring, and how plaintiff’s confidence in the integrity of her workplace and her primary supervi sor could be restored.
The passage of time between the theft and evidence of defendant’s possession was not too stale for the jury to infer that defendant was in wrongful possession of stolen prop erty.
ConfidentialityContract–
Plaintiffs have cited no North Carolina decisions which support their argument that a party to a confidentiality agreement possesses a privilege to file documents on the public record in violation of that confidentiality agreement. Business Court Rule 5 provides a mechanism for a party to request that a filing be made under seal. Plaintiffs’ deci sion not to use that mechanism is not protected by a “litigation privi lege.”Plaintiffs’ motion to dismiss de fendants’ counterclaim is denied.
NORTH CAROLINA LAWYERS WEEKLY I September 12, 2022 OPINION DIGESTS / 15
After one probation violation re sulted in the extension of her proba tion, defendant reportedly violated probation three more times. After a hearing, the trial court found that defendant had committed a crimi nal offense, revoked her probation, activated her suspended sentence, and reduced her prison sentence from a period of 17 to 30 months to a period of 15 to 27 months. On this record, defendant’s appeal is frivo
lous.Appeal dismissed.
Defendants’ counterclaim alleges that (1) the parties’ contract re quired plaintiffs to keep confidential the information contained in their contract, (2) plaintiffs breached the confidentiality provisions by filing the contracts on the public docket and (3) defendants were damaged thereby. Accordingly, defendants have stated a claim for breach of contract.Thecomplaint alleges that it was plaintiffs who accepted a con tractual duty not to disclose confi dential information. Nothing in the complaint alleges that defendants agreed to be bound by the same duty. Furthermore, defendants’ de cision to file the confidential mate rial with their counterclaim came only after plaintiffs had already put the same material on the public re cord. Thus, defendants’ decision to file confidential material does not constitute a waiver of plaintiffs’ al leged breach.
Labor
On three occasions in two months, a six-year-old – the grandson of the defendant-employer’s owners and son of a supervisor being groomed to take over the family business –called plaintiff the n-word in her workplace. While the district court read plaintiff’s EEOC charge to mean she had not reported the first incident at all, the record could be read to mean plaintiff reported the first incident to a co-worker who functioned as her supervisor. More over, since the employer failed to show that it had any procedures for victims to register complaints, a reasonable jury could charge the employer with constructive of all three n-word incidents.
It is significant – though not dis positive of the adequacy of the fa ther’s response – that the response proved ineffective and that the third n-word incident quickly fol lowed the first.
Chi v. Northern Riverfront Ma rina & Hotel, LLLP (Lawyers Weekly No. 020-046-22, 9 pp.) (Ju lianna Theall Earp, J.) Katherine Burghardt Kramer for plaintiffs; George Oliver, Clifton Brinson, Grace Gregson, Kevin Ainsworth and Jennifer Carpenter for defen dants. 2022 NCBC 46
Probation Revocation – Frivolous Appeal
Continued from 14 ► See Page 16 ►
Even though several months passed between the victim’s report of the theft of his PlayStation and defendant’s arrest for its larceny, the doctrine of recent possession was applicable.
State v. Rook (Lawyers Weekly No. 012-308-22, 12 pp.) (Chris Dil lon, J.) Appealed from Johnston County Superior Court (Keith Gregory, J.) Jonathan Marx for the state; Mary McCullers Reece for defendant. 2022-NCCOA-482
Public Docket –‘Litigation Privilege’ – Waiver
State v. Stocker (Lawyers Week ly No. 012-309-22, 5 pp.) (Allegra Collins, J.) Appealed from Jackson County Superior Court (Thomas Lock, J.) Gail Carelli for the state; Sterling Rozear for defendant. 2022-NCCOA-485
Affirmed.
We vacate summary judgment for the employer.
A few days after the theft, the victim noticed that someone had logged into his PlayStation ac count. Law enforcement discovered that someone using an email ad dress containing “JackieRook85” had logged into the stolen PlaySta tion three days after the theft from an IP address assigned to Jackie Rook.
Criminal Practice
Finally, although plaintiff’s
In her EEOC charge, plaintiff said of the first incident, “I told [the boy] to stop, but I did not report it.” A feasible interpretation of this charge is that plaintiff dd not re port the first incident to the owners or their son. Such an interpretation is consistent with the evidence that the owners were absent from the fa cility at the time and that plaintiff opted to report the incident to a coworker whom plaintiff believed was her supervisor, Patricia Warner. The interpretation of the EEOC charge is a credibility determina tion for the jury, not a reason to re fuse to consider plaintiff’s evidence of her report to Furthermore,Warner.therelevant ques tion is not whether Warner quali fies as a “supervisor.” Rather, the proper question is whether War ner’s position would allow a reason able juror to find that the employer knew or should have known of the first n-word incident as a result of plaintiff’s report of that incident to Warner. That question is yet unan swered.There is also a genuine dispute of fact as to whether the boy’s father’s response to the second n-word in cident – spanking his young son, dragging the boy to the facility’s kitchen to apologize to plaintiff (where the child did not apologize), and abruptly leaving the boy crying and recalcitrant with plaintiff and Warner, without even offering his own apology – was reasonably cal culated to prevent further harass ment. That is, a reasonable juror could conclude that leaving a dis tressed six-year-old child, who has just been making racist comments, alone in the workplace with the vic tim and target of those comments certainly is not action reasonably calculated to stop the harassment or to repair the working environ ment.
State v. Howard (Lawyers Week ly No. 012-307-22, 22 pp.) (April Wood, J.) (Jefferson Griffin, J., concurring in result only without separate opinion) Appealed from Cabarrus County Superior Court (Martin McGee, J.) James Wilson for the state; Stephen Driggers for defendant. 2022-NCCOA-476
Criminal Practice
The doctrine of recent possession is the rule that upon an indictment for larceny, possession of recently stolen property raises a presump tion of the possessor’s guilt of the larceny of such property. There is no bright-line rule on the amount of time deemed too long to support an inference of recent possession.
At bottom, a reasonable jury could find that the employer had either or both constructive and ac tual knowledge of the three n-word incidents and that its response was insufficient.
Several months later, defendant sold the PlayStation and video games to a third party, who then resold the PlayStation to a Game Stop store. In a video provided to the third-party purchaser to prove the PlayStation was operational, defendant and his wife are visible.
When a detective testified that he had contacted defendant’s pro bation officer in order to determine his residence, defendant objected, and the trial court sustained the objection. The trial court dismissed the jury for the day and heard de fendant’s motion for a mistrial. The next day, the trial court gave a curative instruction; all members of the jury affirmed they could con tinue with the case; and the trial court denied defendant’s motion for a Themistrial.trialcourt’s actions cured any prejudice defendant potential ly faced following the detective’s reference to his probation officer. Ultimately, the improper testimo ny was not so serious that it sub stantially and irreparably preju diced defendant’s case and made it impossible for defendant to receive a fair and impartial verdict. The trial court did not abuse its discre tion in denying defendant’s motion for a mistrial, striking the offend ing testimony and delivering a cu rative instruction to the jury.
RacialEmployment&Discrimination–
In ruling on plaintiff’s claim of constructive discharge, the dis trict court applied an old standard, which required a showing of deliber ateness on the part of the employer. There is no longer such a require ment. On remand, the district court should apply the proper standard.
Defendant contends that police did not have reasonable suspicion to stop his vehicle based on the trial court’s finding that a detective “was directly behind [defendant’s] Lexus and was able to observe the vehicle’s speed. Maintaining a constant dis tance behind the Lexus, he paced the Lexus at 62 mph in a 55 mph zone.” However, the detective’s observation of defendant’s vehicle, along with him following closely behind defen dant’s vehicle and his personal ob servation of its speed furnished him with a sufficient blend of circum stances to establish a fair probabil ity that defendant was speeding.
NORTH CAROLINA LAWYERS WEEKLY I September 12, 202216 / OPINION DIGESTS
We find no error in defendant’s conviction for failure to notify the sex offender registry of his new ad dress.The indictment alleged that de fendant “Unlawfully, willfully and feloniously did as a person required by Article 27A of Chapter 14 of the General Statutes to register, fail to register and verify address in per son with the Sheriff of Pitt County within three (3) business days after being released from a penal insti tute as required by law.”
During the traffic stop of the Lex us, defendant was observed to “lean forward in his seat in an unusual manner, pressing his right arm be tween his chest and right thigh and reaching his left arm down toward the floorboard.” A subsequent patdown of defendant’s person revealed a large wad of cash in his pocket. Defendant told the officers he had served ten years in a federal prison for a previous drug trafficking con viction. A K-9 officer alerted to the presence of narcotics at the area of the vehicle where defendant had been sitting. A search of the passen ger side of the vehicle revealed cash underneath the front seat.
Miranda Waiver – Evidence of Impair ment
Affirmed.
Police officers also had probable cause to search defendant’s body. Police had been observing a white BMW sedan parked in the corner of a gas station parking lot in an area known for illegal drug activity. They saw defendant’s Lexus SUV park at the gas pump closest to the BMW.
Based on the totality of the cir cumstances, the police had probable cause to search defendant’s person.
State v. Sisk (Lawyers Weekly No. 012-311-22, 12 pp.) (Jeffery Carpenter, J.) Appealed from Mc Dowell County Superior Court (Athena Brooks, J.) Stephen Drig gers for defendant; William Walton for the state. 2022-NCCOA-483
Real ConstitutionalProperty–FirstAmendment
Criminal Practice
State v. Cameron (Lawyers Week ly No. 012-310-22, 12 pp.) (April Wood, J.) Appealed from Durham County Superior Court (Orlando Hudson, J.) Hill Davis for the state; Daniel Blau for defendant. 2022-NC COA-475
Criminal Practice
We affirm the sentencing en hancement for maintaining a prem ises for the purpose of drug distri bution.
Criminal Practice
dress can no longer be the prison due to his release. It logically fol lows then that defendant changed his address, which is subject to re porting.
At defendant’s trial for malicious conduct by a prisoner – which arose from defendant spitting in the face of the officer who was arresting him – defense counsel requested a jury instruction on misdemeanor assault on an officer as a lesser in cluded offense. The trial court cor rectly ruled that assault on an of ficer is not a lesser-included offense of malicious conduct by a prisoner.
Defendant was already a con victed sex offender, so, when he was released from prison, it was G.S. § 14-208.9 which required him to register his change of address. Al though the indictment incorrectly cited G.S. § 14-208.7, the charging language of the indictment alleged sufficient facts to charge defendant with violating § 14-208.9.
Sergeant Price then performed a search of defendant’s person and first found cash in his pocket, and then, after pulling the top of his un derwear away from his back side, observed a bag of heroin protruding from between defendant’s buttocks.
Malicious Conduct by a Prisoner –Lesser Included Offense
Chapman v. Oakland Living Center, Inc. (Lawyers Weekly No. 001-103-22, 26 pp.) (Robert King, J.) No. 20-2361. Appealed from USDC at Asheville, N.C. (Martin Reidinger, C.J.) Kimberly Veklerov, Gregory Eng, Scott Ballenger, Jen nifer Elchisak, Zev Klein, Jehanne McCullough and Carly Wasserman for appellant; Jonathan Woodward Yarbrough and Jill Sticklin for ap pellees; Jeremy Daniel Horowitz, Gwendolyn Young Reams, Jennifer Goldstein, Sydney Foster and Anne King for amicus curiae. 4th Cir.
State v. Speight (Lawyers Week ly No. 012-312-22, 5 pp.) (Darren Jackson, J.) Appealed from Pitt County Superior Court (Jeffery Foster, J.) Andrew Hayes for the state; Benjamin Kull for defendant. 2022-NCCOA-484
State v. Crouse, 169 N.C. App. 382, 610 S.E.2d 454 (2005).
Church Property – Neutral Principles
Sentencing Enhancement – Main taining Premises – Cousin’s House
Criminal Practice
to make a knowing and intelligent waiver; and during the recorded interrogation, defendant mumbled, fidgeted and briefly closed his eyes. However, defendant’s statement, without more, cannot form a basis for the suppression of his confes sions; furthermore, his fidgeting, mumbling and resting do not pres ent a clear indication of intoxica tion.There was also competent con trary evidence: defendant’s ability to drive and his coherent discussion with the police officer. Because com petent evidence existed to support the trial court’s finding that defen dant knowingly and intelligently waived his Miranda rights, the tri al court’s denial of defendant’s mo tion to suppress was proper.
Truth Temple v. Word Pro claimed Church of God in Christ, Inc. (Lawyers Weekly No. 012-31422, 18 pp.) (Valerie Zachary, J.) Ap pealed from Pitt County Superior Court (Marvin Blount, J.) Christo pher Edwards for plaintiff; Natar lin Best for defendants. 2022-NC COA-486
Search & Seizure – Traffic Stop – Pac ing – Drug Transaction
The allegation that defendant was released from a penal institute sufficiently alleges the element of a change of address. Defendant’s ad
Affirmed.
EEOC charge only referred to the three n-word incidents, the district court should not have excluded evi dence of earlier incidents. The trier of fact would be entitled to consider evidence of the prior incidents to assess witness credibility and to de cide other issues, such as whether the employer had notice of the en vironment and whether it would be reasonable to expect plaintiff to pursue further complaints for the 2018Forincidents.example, the jury could con clude that a reasonable person in plaintiff’s position could have per ceived past discriminatory incidents involving the child’s grandparents and parents as confirmation that challenging the three n-word in cidents could lead to unwelcome consequences. The jury also could conclude that viewing the child’s con duct through the lens of his family members’ prior actions rendered the three n-word incidents more severe. Vacated and remanded.
We find no error in defendant’s conviction for malicious conduct by a prisoner.
–
We affirm judgment for plaintiff. Defendants lodged a general ob jection to the testimony of “all wit nesses” called to testify on plain tiff’s behalf, including any “natural persons.” The trial court overruled theAobjection.generalobjection, if overruled, typically does not entitle a party to appellate review thereof unless there is no possible purpose for which the proffered evidence could have been admissible. This is not such a case. It is beyond cavil that religious associations may sue and be sued as entities unto themselves without the inclusion of individual party-plaintiffs, and that clergy and members of churches may testify in such cases without themselves be ing parties to the action.
Continued from 15 ►
We affirm the trial court’s denial of defendant’s motion to suppress.
This dispute is between the Greater North Carolina Jurisdic tion Church of God in Christ, Inc. (GNCJ), and the plaintiff-church, which bought land and built a church on it with no funding from the GNCJ or the national Church of God in Christ. The defendanttrustees deeded the church’s prop erty to the GNCJ. The trial court followed First Amendment juris prudence when it looked to the Offi cial Manual with the Doctrines and Disciplines of the Church of God in Christ to determine that the trust ee defendants were not, in fact, constituent members of plaintiff’s governing body when they executed the deed to the GNCJ.
Criminal Practice
Even though defendant did not own or live at his cousin’s Calvary Street house, (1) defendant claimed ownership of the bulk drugs stored inside the house alongside the ac coutrements of drug trafficking; (2) he frequented the Calvary Street house, apparently for the primary – if not sole – purpose of accessing the drugs he stored there in order to portion and sell them, which he did both on the property and up and down Calvary Street multiple times per day; (3) after defendant encoun tered an informant in the driveway of the Calvary Street house, he in vited the informant to return to the house to purchase drugs; (4) defen dant later completed the sale to the informant on the premises; and (5) when police arrived to execute a search warrant at Calvary Street, defendant ran into the house before heading for the fence to make his escape. Under these circumstances, the district court did not clearly err in finding that these facts demon strated defendant’s access to and control over the Calvary Street house and the drug distribution business operating there.
There was some evidence that defendant was impaired when he waived his Miranda rights and confessed to many larcenies: at the hearing on defendant’s mo tion to suppress his admissions, he testified that he was too impaired by methamphetamine during his conversation with a police officer
State v. Anderson (Lawyers Weekly No. 012-313-22, 5 pp.) (Chris Dillon, J.) Appealed from Pitt County Superior Court (Mar vin Blount, J.) Locke Milholland for the state;
Defendants’ decision not to pres ent any evidence at trial leaves the record bereft of any evidence con tradicting plaintiff’s allegation that Truth Temple “is the legal name under which the church intends to continue worshiping and meeting in the future[,]” other than the trustee defendants’ general denial of this al legation in their unverified answer. Nor is there any evidence in the record to support defendants’ argu ment that the trustee defendants were, in fact, trustees of plaintiff or, for that matter, of Truth Temple Church of God in Christ, Inc. (noted in the caption as plaintiff’s former name)—if that is, in fact, a distinct entity. And as there is no evidence in the record to support the conten tion that the trustee defendants had any legal authority to execute the deed on behalf of either plaintiff or Truth Temple Church of God in Christ, Inc. Defendants have no ba sis upon which to challenge the trial court’s judgment.
Affirmed.
Sex Offender – Change of Address – Indictment Sufficiency – Wrong Statute Cited
Defendant got out of the passen ger side of the Lexus, got into the BMW, got back out of the BMW 30 seconds later, and walked back to the Lexus. Police Sergeant Price testified that defendant’s head was “on a swivel” as he returned to the Lexus, and he appeared to be hold ing something in his hand. The Lex us left without buying gas.
United States v. Barnett (Law yers Weekly No. 001-104-22, 10 pp.) (Allison Jones Rushing, J.) No. 19-4557. Appealed from USDC at Charlotte, N.C. (Max Cogburn, J.) Richard Croutharmel for appellant; Anthony Joseph Enright and An drew Murray for the government. 4th Cir.