North Carolina Lawyers Weekly September 26, 2022

Originating site

Use of racial epithets moves claims case forward

■ BY CORREY E. STEPHENSON BridgeTower Media Newswires

The repeated use of a racial epithet by the 6-year-old grandson of the owners of an assisted living facility was sufficient to support a former employee’s hostile work environment claim, a unanimous panel of the 4th U.S. Circuit Court of Appeals has ruled, reversing summary judgment in favor of the employer.

Med mal suit vs. NC doctor survives dismissal

■ BY JASON BOLEMAN

A doctor who was physically present in North Carolina but examined a patient in Virginia through a telemedicine program had his motion to dismiss for lack of jurisdiction and for failure to state a claim rejected by a federal court.

The Western District of Virginia has personal jurisdiction because the doctor’s alleged tortious actions are considered to have happened in Virginia and the patient sufficiently alleged a plausible medical malpractice claim against the doctor.

The court further denied a motion

to transfer venue to the Middle District of North Carolina, where the defendant doctor and his employer are located, citing convenience to witnesses and the location where the alleged injury occurred.

Chief U.S. District Judge Michael F. Urbanski authored the court’s opinion in Corradi v. Kolls, et al. (VLW 022-3-388).

Background

Michael Corradi arrived at the SOVAH Health Virginia Hospital in Martinsville in October 2019 exhibiting symptoms of a stroke, including slurred speech and sudden

numbness in his arm, leg and mouth. He was admitted and stroke protocol was initiated. A CT scan and a Telestroke exam were ordered.

To administer the Telestroke exam, the attending physician contacted Dr. Bradley Kolls, a physician who was at Duke University Hospital in North Carolina at the time. Kolls is a North Carolina citizen but is licensed to practice medicine in Virginia. At the time of the events in this case, Kolls was “an employee or agent” of Duke Health, a non-profit corporation principally located in

An African-American female, Tonya R. Chapman, worked at the Oakland Living Center (OLC) in Rutherfordton for two periods of time. From 2004 to 2015, she worked as a housekeeper, cook and personal care aide at the assisted living facility. She claimed that during this 11-year span, she experienced racial harassment and other discrimination perpetrated by members of the white family that owned the facility.

According to Chapman, the Smith family – Arlene and Michael, who own OLC; their son Steve, who served as a supervisor while training to take over the business; and three of Steve’s sons – made comments about giving her a “slave number,” complained “there were

Inside this issue of North Carolina Lawyers Weekly you’ll find the latest Carolina Paralegal News edition.

This edition’s cover story is a feature on Yazmeen Gadalla, the new chair of the North Carolina Bar Association Paralegal Division. Gadalla’s priorities in hew new leadership role include getting involved in the profession, cultivating relationships with her colleagues and giving back.

Gadalla’s interest in law was sparked while an English major at N.C. State University. She worked a four-month internship at the U.S. Attorney’s office in Raleigh, primar-

ily performing administrative tasks, but also soaking up the culture and learning how the legal system works.

Gadalla also co-chairs the Paralegal Division’s Long Range Planning Committee, the Membership Committee and is a member of the Pro Bono Committee.

“Within the Paralegal Division, I have found a lot of great role models and colleagues, and I enjoy being around them because I know that they make me a better paralegal because they are so passionate about the profession,” she told Teri Saylor for her cover story.

Also inside you’ll meet more of

the Paralegal Division’s leadership team, as well as Q&As with Amy Fleischer with Ragsdale Liggett in Raleigh (who also happens to have a law degree), and Katie Riddle, who is a life products paralegal at Lincoln Financial Group and who recently enrolled in the North Carolina Central University School of Law.

Know a paralegal making a difference? Be sure to contact me. Info below.

As always, thanks for reading.

Jason Thomas is interim editor of North Carolina Lawyers Weekly. Reach hin via email at jthomas@ scbiznews.com.

Introducing

A federal court has rejected a dcotor’s motion to dismiss based on jurisdiction tied to a telemedicine program. DepositPhotos

4th Circuit Court reverses summary judgment in favor of former employer

Womble Bond Dickinson adds partner in Raleigh

Womble Bond Dickinson has an nounced that Michael M. Choy has joined the firm’s Capital Markets group as a partner in the Raleigh of fice. He brings over two decades of ex perience representing financial insti tutions and lenders in corporate legal departments of regional and national banks and in private practice at Am Law 100 firms, a news release from the firm stated.

Choy joins Womble from one of the country’s largest banks, where he most recently served as Senior Vice President and Managing Counsel. In that role, he co-led the Middle Mar ket Banking Legal Team, acting as section leader of the Emerging Mid dle Market segment of Middle Mar ket Banking and certain Specialized Industries lending businesses, and served on the Commercial Banking

Division Leadership Team within the Le gal Department.

“Mike is a prag matic, collaborative, and solution-orient ed leader with deep connections in the North Carolina com munity of bankers and in-house law yers,” said Beth Tyner Jones, manag ing partner of the firm’s Raleigh and Research Triangle Park offices, said in the release. “He has a track record of building meaningful relationships with business partners at all levels and will be a valuable addition to the Triangle offices.”

tice group, adds: “We are extremely pleased to add an attorney of Mike’s caliber to our world-class Financial Services practice. Our clients will cer tainly benefit from Mike’s formidable experience as a Big Law attorney and, more recently, as a senior managing counsel at a money center bank.”

ic legal services across the transat lantic financial centers,” said Choy. “I have engaged and worked with many of the firm’s attorneys over the years in my prior in-house roles, and I am excited to start the next chapter of my career by joining this team.”

Michael M. Choy

Merrick Benn, a member of the firm’s Executive Committee and leader of the Capital Markets prac

Prior to his in-house roles, Choy was an associate at Am Law 100 firms in Atlanta and Chicago. His practice focused on representing financial in stitutions, non-bank lenders, and bor rowers in a variety of finance trans actions. At Womble, he joins a team of more than 200 Financial Services sector lawyers across the U.S. and the U.K., representing nearly half of the top 100 U.S. banks, including 17 of the top 25.

“Womble has a solid reputation for providing sophisticated and pragmat

Choy is a graduate of Rutgers Law School, Duke University, Columbia University, and the University of Georgia. He is fluent in Korean.

Womble has grown significantly in the last year, with new offices in New York, Nashville, San Francisco, and Huntsville, Ala., and the addition of 23 new partners. Choy’s arrival fol lows several laterals in the Capital Markets group, including bankruptcy partner Don Detweiler, energy part ner Shawan Gillians, and financial services partner Laura Hoag.

Staff report

North Carolina native joins Gordon & Rees as partner

Gordon Rees Scully Man sukhani has added Samuel G. (“Bo”) Thompson Jr. as a partner in the firm’s Raleigh office, accord ing to a news release.

He is a North Carolina native whose practice areas include pro fessional liability defense, health care, agribusiness and toxic tort law, privacy and data security, products liability, and general li ability matters. He has experience in all phases of litigation from presuit claims through trial, the re lease stated.

“Bo Thompson has built a reputa tion for zealous ad vocacy, meticulous attention to detail, and unrivaled pro fessionalism here in North Caro lina,” said Allison Becker, managing partner of the Ra leigh office, said in the release. “We are delighted to welcome him to our growing team.”

Thompson has nearly two de cades of experience defending health care professionals, their practices, hospitals, and other health care facilities and their staff against claims of alleged medical malpractice. He also represents accountants, appraisers, attorneys, educators, farmers, law enforce ment officers, property managers, real estate developers, realtors, and other regulated business own ers and their state-licensed em ployees, according to the release.

Thompson has been recognized

as a Super Lawyer in the area of professional liability defense since 2015. He has also served on the Wake County Bar Association’s Board of Directors, as well as on the North Carolina Chief Justice’s Commission on Professionalism. He is admitted to practice in North Carolina.

Thompson received his under graduate degree from University of North Carolina at Chapel Hill and earned his law degree from Campbell Law School.

Staff report

Governor makes 2 judicial appointments

Gov. Roy Cooper recently an nounced two judicial appoint ments to Superior and District Courts.

“These appointees are knowl edgeable leaders, and have served their communities well over the years,” Cooper said in a news re lease. “I’m grateful for their will ingness to continue serving our state in these new positions.”

Robert “Bob” Roupe has been

appointed to serve as a Superior Court Judge in Judicial District 4, serving Duplin, Jones, Onslow and Sampson counties. Roupe was appointed to fill the vacancy created by the retirement of the Honorable Charles Henry.

Roupe is currently an assistant district attorney in the 5th Pros ecutorial District, serving Dup lin, Jones, Onslow and Sampson counties. He received his bach

elor’s degree from Bob Jones Uni versity and his Juris Doctor from the University of North Carolina at Chapel Hill School of Law.

Rhonda Patterson has been appointed to serve as a District Court Judge in Judicial District 26, serving part of Mecklenburg County. She was appointed to fill the vacancy created by the retire ment of the Honorable Rickye McKoy-Mitchell. Patterson is

currently the managing aAttor ney at The Patterson Law Office, PLLC.

Previously, she was an adjunct instructor at Johnson C. Smith’s Metropolitan College and an As sociate at K&L Gates, LLP. She received her bachelor’s degree and Juris Doctor from the Uni versity of North Carolina at Cha pel Hill.

Staff report

RALEIGH, N.C. (AP) — North Carolina Senate leader Phil Berger recently called an offer from state hospitals to expand Medicaid to hundreds of thousands of the work ing poor “not a serious proposal,” saying loosened regulations for medical construction projects didn’t go far enough.

Berger’s dismissal of the propos al from the North Carolina Health care Association short-circuited any expectations — though much improved compared to months ago — that a Medicaid expansion agreement could be at hand. Still, Democratic Gov. Roy Cooper, an expansion advocate, urged Berger separately Tuesday to make a coun teroffer.

Expansion also would create an influx of several billion dollars from the federal government that the state is missing out on, Cooper add ed. North Carolina is one of a dozen

states that haven’t accepted the federal government’s Medicaid of fer originating from the 2010 health care law.

The House and Senate passed competing expansion proposals in June, and the next month Berger and House Speaker Tim Moore ex pressed their commitment to work together for the initiative.

Senate Republicans insist any final agreement must contain pro visions to increase the supply of medical services to handle the addi tional patients that Medicaid would bring. Chief on their list is scaling back and streamlining “certificate of need” laws that require health regulators to sign off on expansion plans by medical providers.

Berger had complained in recent months that the North Carolina Healthcare Association, a lobbying group for over 130 hospitals, health systems and other groups, wouldn’t

accept a significant pullback of cer tificate of need laws.

The association’s offer, which came a few days after Cooper urged the hospitals to engage with Berger, would do away with such laws for psychiatric inpatient beds and beds to treat people with chemical de pendency. Within five years, it also would scale back regulations for op erating rooms in ambulatory surgi cal centers.

Berger has said the association’s offer looked “like it was more to deal public relations than a substantive or a serious proposal.” And he said the ambulatory surgical center rule changes would appear to make it so the only entities that could open such a center would be another hos pital.

“It looks to me like it’s more de signed to further entrench the mo nopolies that the hospitals have,” Berger said.

Association spokesperson Cyn thia Charles said later that there could be many more independently owned ambulatory surgical centers in the state if the proposal were car ried out.

The “association has made a se rious and fair proposal that took shape over several weeks,” Charles said in a written statement. “The General Assembly had said that they were interested in getting in put from hospitals and health sys tems on this issue and we have pro vided it. The next steps are up to them.”

Berger didn’t say specifically whether Senate Republicans would make a counteroffer, adding that the Republican-controlled House, the governor and the hospitals know their certificate of need position and that senators previously sent “sev eral alternatives” to the House. He wouldn’t provide further specifics. hospitals’ Medicaid proposal not

Samuel G. (“Bo”) Thompson Jr.

College to host inaugural law and tech summit

The North Carolina Central Uni versity (NCCU) Technology Law and Policy Center announces the inaugu ral Law and Technology Summit on Oct. 14-15, 2022. The hybrid event will be held on the NCCU campus and virtually, according to a news release from the school.

The summit aims to bring together some of the industry’s top legal ex perts, policy advocates and technolo gists from around the country. It will include keynotes, presentations, and panel discussions designed to exam ine issues and current developments in law and technology, including arti ficial intelligence, data privacy, cyber security, tech policy, legal services,

regulatory reform and more.

“There is a growing need for law yers who have expertise in the emerg ing technology-related areas like data privacy and cybersecurity,” said April Dawson, associate dean of technol ogy and innovation and professor of law at NCCU School of Law. “There is also an enormous need for diverse legal professionals who can engage in meaningful technology-related policy discussions to ensure that technology law, regulations, and technology im plementation do not result in the fur ther marginalization of communities of color and that technology is used to create a more just society.”

Housed in the NCCU School of

Law, the Technology Law and Policy Center is a result of a $5 million gift from the Intel Corporation. The mis sion of the center is to provide more access to diverse professionals in the tech law field and address discrimi natory laws and public policies that create structural and systemic ineq uities. Through the partnership, Intel will also contribute legal and strate gic expertise, faculty training, sum mer internships and Intel mentors for both students and faculty members.

“The NCCU School of Law has been a leader in equity and diversity within the legal education field for several decades,” said Johnson O. Akinleye, Ph.D., NCCU chancellor.

“The Technology and Policy Center and its inaugural summit play an essential role in assisting the univer sity in delivering the Eagle Promise to students. Both provide innovative learning opportunities, direct con nections with leading tech executives and produce diverse legal profession als who are equipped to transform their communities.”

For more information about the Technology Law and Policy Cen ter, visit law.nccu.edu/academics/ techlawcenter/.

To register for the Law and Tech nology Summit, visit bit.ly/NCCU LawTechSummit.

Staff report

ACC relocating HQ — but is staying in NC

The Atlantic Coast Conference is relocating its headquarters but re maining in its home state of North Carolina.

The league announced last week it would move its offices from Greens boro — the city where it was founded in 1953 — to downtown Charlotte in 2023. In a news release, the league said it will use the 2022-23 academic year as a transition period for the re location.

The league had also considered remaining in Greensboro while com missioner Jim Phillips said Tuesday in a media call that the league also made multiple visits to Orlando, Florida. But the decision to remain in North Carolina positions the league to obtain $15 million in state funds, which were earmarked in the latest budget for a “collegiate sports em ployer” for building a new headquar ters in the state.

“It really was not Greensboro or not Charlotte,” Phillips said of the state’s proposal. “It was really a com mitment to stay in the state of North Carolina and (the league) select where would be best.

“I think that’s an important piece of information, that the state was in credibly neutral towards where the conference office would be located. It just did not want to see it leave the state.”

The league cited criteria in a re view aided by an outside agency such as location within the Eastern time zone, population trends, access to a large hub airport for accessibil

ity throughout the league’s 15-school footprint and financial consider ations.

Phillips had been discussing the possibility since last year after tak ing over for the retiring John Swof ford. At the ACC’s men’s basketball media day last October, Phillips had said the ACC’s school presidents and chancellors had inquired about the future of the league’s headquarters during his interview process.

At the time, Phillips said the op tions included remaining at the lo cation along Interstate 85 outside of

Young Moore adds associate attorney to Raleigh team

Young Moore has welcomed Xavier J. McLean to the firm.

Moore is an associate on Young Moore’s Employment and Work ers’ Compensation Team. He ad vises and defends employers and insurers in workers’ compensation claims and other employment mat ters.

Moore is a graduate of the Uni versity of North Carolina School of Law and Brigham Young Universi ty. Before pursuing his law degree, Xavier worked as a Child Protec tive Serves Caseworker for the State of Utah. While attending law school Xavier served on the Hold

erness Moot Court Corporate Team, as Co-chair of the Academic Support Committee of the Black Law Student Association, and as Secretary of Caro lina Law FirstGeneration Profes sionals.

downtown Greensboro and near the Grandover Resort and Spa.

“This was not an easy decision for the board as we recognize the truly wonderful relationship we’ve had with Greensboro,” Duke president and board chair Vincent E. Price said. “But we are thrilled we are re maining in North Carolina.”

The league’s North Carolina roots had become a topic of discussion as the league has expanded in recent decades to 15 basketball members stretched along the entire Eastern seaboard and west into Kentucky

and Indiana. Specifically with men’s basketball, the league has held its tournament in North Carolina in 54 of 69 years, including 28 in Greens boro and 13 in Charlotte.

More are coming considering the state budget provision that the league hold championship events for numer ous sports in the state by the 203233 academic year. That includes four men’s basketball tournaments, with two of those slated for Greensboro be yond the one already scheduled there for the upcoming season.

Associated Press

The Law Office Of JENNIFER JERZAK BLACKMAN

Young Moore and Henderson, P.A. is a civil law firm in Raleigh, N.C., represent ing clients in a variety of litigation and transactional matters.

Staff report Xavier J. McClean

Atlantic Coast Conference commissioner Jim Phillips speaks during an NCAA college football news conference at the ACC media days in Charlotte, N.C., Wednesday, July 20, 2022. The Atlantic Coast Conference is relocating its headquarters but remaining in its home state of North Carolina. The league announced Tuesday, Sept. 20, 2022, it would move its offices from Greensboro — the city where it was founded in 1953 — to downtown Charlotte in 2023. AP Photo/Nell Redmond, File

CLAIMS / Use of racial epithets moves claims case forward

too many Blacks at Myrtle Beach” and gave her a cake arguably de picting a Black figure hanging from a noose at a monkey-themed party for Steve’s sons.

Based on these incidents and a lack of advancement, Chapman quit.

But in 2018, she returned to OLC as a weekend cook. One day, one of Steve’s sons – who were present at the facility all the time – kicked her and told her, “My daddy called you a lazy [expletive] Black [n-word], because you didn’t come to work.” Chapman reported the incident to her supervisor.

The following month, the same 6-year-old yelled at her “[n-word, [nword]. Get to work, [n-word].” When Chapman reported it, Steve brought the boy into the kitchen to apolo gize, but he cried and refused. Steve left and the boy said to Chapman, “Tonya you are a [n-word].”

Chapman quit and filed a charge of discrimination with the Equal Employment Opportunity Commis sion (EEOC), which didn’t include information about the discrimina tion she allegedly experienced dur ing her first time at OLC. She then filed suit pro se, accusing OLC of a hostile work environment and con structive discharge.

OLC moved for summary judg ment. The district court – consider ing only the three n-word incidents – granted the motion. Chapman ap pealed.

Judge Robert B. King reversed, finding the three incidents sufficient to move her claims forward and fur ther holding that the district court should have considered the earlier alleged harassment.

“[T]he fact that the three n-word incidents were perpetrated by a sixyear-old boy does not preclude a finding that those incidents are suf ficiently severe or pervasive to alter Chapman’s conditions of employ ment and create an abusive work environment,” he wrote. “[D]ue consideration must be given on re mand to the racial harassment and other discrimination allegedly per petrated against Chapman during her earlier period of employment. At minimum, it is relevant background evidence in support of the hostile work environment and constructive discharge claims premised on the three n-word incidents.”

‘Purpose or effect’ of interfering with work

King began with Chapman’s hos tile work environment claim, focus ing on the third and fourth elements.

The third element of a hostile work environment claim requires a showing that the environment would reasonably be perceived, and is perceived, as hostile or abusive.

While OLC argued that the re peated use of the n-word was not objectively severe because it was uttered by a young child, Chapman countered that it was uttered by the grandson of OLC’s owners and the son of a supervisor being groomed to take over the family business.

Moreover, the first time he used the slur, the boy attributed it to his father, along with a negative com mentary on Chapman’s work perfor mance.

“[A] reasonable person in Chap man’s position could ‘fear that the

child had his relatives’ ear and could make life difficult for her,’” King wrote. “Whether or not the boy was being truthful, the invocation of his father can reasonably be seen as further amplifying the severity of the boy’s comment to Chapman.”

Importantly, King emphasized that it didn’t matter if the boy was too young to understand the force of his words or if he lacked intent to harm Chapman, because “harass ment based on a protected charac teristic may be actionable where it ‘has the purpose or effect of unrea sonably interfering with an individ ual’s work performance or creating an intimidating, hostile, or offensive working environment.’ Indeed, a

the child had apologized.’”

First work period must be consid ered

Still considering only the three nword incidents, King then reversed summary judgment on Chapman’s constructive discharge claim, as the district court applied the incorrect standard.

The 4th Circuit used to require a showing that the employer “deliber ately” made the working conditions intolerable in an effort to induce the employee to quit, but after the U.S. Supreme Court’s 2016 decision in Green v. Brennan, the standard no longer requires a showing of “delib erateness,” he explained.

Finally, King found the district court erred in excluding any consid eration of Chapman’s evidence from her work at OLC between 2004 and 2015.

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Scott Balenger, leader of the Virgin ia School of Law’s Appellate Litiga tion Clinic

reasonable person in Chapman’s po sition could perceive the boy’s com ments to be ‘especially humiliating’ because of his young age, and his ‘constant presence in the [assisted living facility’s] kitchen’ to pose a threat ‘that another incident could occur at any time.’”

Turning to the fourth element, King noted that the district court failed to address whether OLC had constructive knowledge of the al leged harassment. The record in dicated that OLC failed to provide reasonable procedures with regard to workplace harassment, he said, and as a result, a reasonable jury could charge OLC with constructive knowledge of all three n-word inci dents.

He also found that a question remained as to whether OLC had actual knowledge of the n-word in cidents.

King disagreed with the district court that Steve Smith was imme diately alerted and appropriately responded to the second n-word in cident and that Chapman’s resigna tion deprived OLC of an opportunity to deal with the third incident, find ing a genuine dispute of fact.

It was unclear whether Steve’s response – “spanking his young son, dragging the boy to the assisted liv ing facility’s kitchen to apologize to Chapman, and then abruptly leav ing the boy crying and recalcitrant with Chapman and [her supervisor], without even offering his own apol ogy” – was “reasonably calculated to prevent further harassment,” he said. “Furthermore, it is significant – although not dispositive of the ad equacy of Steve Smith’s response –that the response proved ineffective and that the second August 2018 nword incident quickly followed the first. Finally, a jury could also be swayed by this point made by Chap man: that Steve Smith’s ‘response would have been inadequate even if

“[U]nder Supreme Court prec edent, Chapman is entitled to ‘us[e] the prior acts as background evidence in support of [her] timely claim[s],’” he wrote. “Thus, notwith standing the district court’s rulings, the trier of fact ‘would still be enti tled to consider [the 2004-2015 evi dence] to assess witness credibility and to decide other issues, such as whether OLC had notice of the en vironment and whether it would be reasonable to expect Ms. Chapman to pursue further complains for the 2018 incidents.’”

The jury could conclude that a reasonable person in Chapman’s po sition could have perceived past dis criminatory incidents involving the child’s grandparents and parents as confirmation that challenging the three n-word incidents could lead to unwelcome consequences, or that viewing the child’s conduct through the lens of his family members’ prior actions rendered the three n-word incidents more severe.

King vacated the judgment of the district court and remanded, not ing that due consideration must be given to the harassment allegedly perpetrated during Chapman’s first period of employment.

Judges James Andrew Wynn and Senior Judge Barbara Milano Keen an joined the opinion.

On appeal, Chapman was repre sented by members of the Univer sity of Virginia School of Law’s Ap pellate Litigation Clinic. Professor Scott Ballenger, who leads the clin ic, said he was “extremely pleased with the very thoughtful decision, which did a great job of analyzing an unusual set of legal and factual problems.”

The case “sort of fell between the seams” of different legal doctrines, he said, because the harassment at issue came from a 6-year-old rela tive of the company’s owners and primary employees – not a customer or supervisor.

Despite the atypical fact scenario, the case provides an important les son, Ballenger said: “Supervisors can have responsibility in these cases for more than just their own statements and actions.”

Jonathan Yarbrough of Con stangy, Brooks, Smith & Prophete in Asheville, Va., who represented OLC, did not respond to a request for comment.

The 26-page decision is Chapman v. Oakland Living Center, Inc. The full text of the opinion is available online at nclawyersweekly.com.

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Supervisors can have responsibility in these cases for more than just their own statements and actions.

Worker who inhaled nitrogen from filtration system leak settles for $2M

■ BY HEATH HAMACHER

A worker who suffered a “stroke-like epi sode” while working on an air filtration system in a Cherryville plant has accepted a $2 million settlement for an array of injuries suffered on the job, his attorney reports.

Lauren Walker of Sumwalt Anderson Law Firm in Charlotte reports that her client, a service technician with a commercial air filtra tion equipment company, was injured on July 22, 2019, as he was servicing a commercial fire suppressing air filtration system at the plant. According to an email from Walker’s firm, it’s believed that the plaintiff inhaled nitrogen leaking from the system, causing oxygen depri vation to his brain and leading to the strokelike episode, brain hemorrhage, and several other injuries and deficits.

After being discharged from the hospital, the plaintiff spent 38 days in an inpatient rehabili

tation center before being sent home to 24-hour supervision.

“Through Ms. Walker’s rep resentation, Plaintiff’s fiancée obtained both retroactive and ongoing attendant care compen sation for the care and supervi sion she provided to the plain tiff,” the firm wrote.

The firm wrote that as the claim proceeded, the parties disagreed regarding the amount of attendant care the plaintiff required and was expected to require over the duration of his life, and the appropriate hourly rate of pay for the care provided by his fiancée. A settlement was ultimately reached, however.

Pursuant to a confidentiality agreement, many details of the case, including names of the parties and defense counsel, have been withheld.

Workplace fall leads to $3.68M settlement

■ BY HEATH HAMACHER

A man injured when he fell while working at a chicken processing plant has agreed to a $3 million settlement and a nearly $700,000 Medi care set aside, his attorneys report.

Mark Sumwalt of Sumwalt Anderson Law Firm in Charlotte and H.W. “Sandy” Sander son Jr. of Holland, Poole, Holland & Sanderson in Clinton report that on May 31, 2019, their client, in the course and scope of his employ ment as a superintendent at the factory, fell as he was carrying a tarp across the floor. The fall caused central cord syndrome, quadriparesis, and functional quadriplegia.

The plaintiff’s surgeries consisted of cervi cal laminectomy, internal fixation from C3 through C6, the attorneys said, and he has needed 24-hour care since he was released from the hospital in July 2019. After the insurance carrier denied the man’s claim, North Carolina Industrial Commission Deputy Commissioner

William Peaslee determined that the claim was compensable, the attorneys said, awarding tem porary total dis ability benefits and medical com pensation, in cluding payment to the plaintiff’s

wife for 24-hour attendant care at the rate of $25 per hour.

After the defendant’s appealed, the plaintiff filed a second request for hearing to determine the amount of permanent partial disability benefits he was entitled to, but the case settled prior to oral arguments before the full commis sion.

Many of the case’s details have been with held pursuant to a confidentiality agreement.

SETTLEMENT REPORT — WORKERS’ COMPENSATION

Amount: $2 million

Injuries alleged: Suspected exposure to nitro gen resulting in loss of oxygen to brain, closed head injury, frontal intracranial hemorrhage with resulting physical and cognitive prob lems, including mobility and balance issues, right-sided hemiparesis, right frozen shoulder, vision impairment, lowered IQ function, verbal fluency deficits, executive functioning deficits, and memory deficits

Case name: Withheld

Court: North Carolina Industrial Commission

Mediator: Reid McGraw

Date of settlement: April 1

Most helpful experts: Cynthia Wilhelm, Ph.D. (certified life care planner)

Insurance carrier: Central Mutual Insurance Company

Attorney for plaintiff: Lauren Walker of Sum walt Anderson Law Firm in Charlotte

Attorney(s) for defendant: Withheld

SETTLEMENT REPORT — WORKERS’ COMPENSATION

Amount: $3 million plus Medicare set aside of $682,015

Injuries alleged: Quadriplegia

Case name: Withheld

Court: North Carolina Industrial Commission

Judge: Deputy Commissioner William Peaslee (ordered award before parties settled)

Date of settlement: May 23

Special damages:

Most helpful experts: Dr. Patrick O’Brien (physical medicine and rehabilitation) and Cyn thia Wilhelm, Ph.D. (certified life care planner)

Insurance carrier: Liberty Insurance Corpora tion

Attorneys for plaintiff: Mark Sumwalt of Sumwalt Anderson Law Firm in Charlotte and H.W. “Sandy” Sanderson Jr. of Holland, Poole, Holland & Sanderson in Clinton

Attorney(s) for defendant: Withheld

Riddle & Brantley adds personal injury lawyer to staff

Riddle & Brantley has added Emma B. McEvoy as its newest personal injury lawyer at its Raleigh, N.C., office.

Before joining Riddle & Brantley in 2022, McEvoy worked at a New York law firm as a litigation associate, where she focused on employment litigation and general civil matters. McEvoy han dles personal injury cases, car and truck accident lawsuits, and workers’ compen

sation claims.

Emma McEvoy graduated from St. Lawrence University with a Bachelor of Arts in government and history. She went on to earn her Juris Doctor from the University of North Carolina at Chapel Hill School of Law in 2020. A na tive of Buffalo, N.Y., McEvoy was intro duced to the legal profession at a young age through the work of her parents.

Her mother served as a New York State Supreme Court Judge, while her father held an in-house corporate counsel po sition. Her brother is also a practicing attorney. Emma credits her mother’s pivotal role in the state court system as the inspiration behind her own dreams of one day becoming a trial attorney.

“Emma is a highly motivated lawyer who brings a true passion for justice and

gravitates to the most challenging cas es. We are truly fortunate to count her among our dedicated team,” said Riddle & Brantley founding partner Gene Rid dle in a news release. As Emma herself has said, “For me, being able to tackle a challenging case head-on and find a solution for my client is the best type of win.”

Staff report

Mark Sumwalt H.W. “Sandy” Sanderson

Lauren Walker

New guidance from NC Commerce on remote workers

■ BY DAVID SPRATLEY AND GEORGE SMITH

Nearly two and one-half years af ter COVID-19 first sent people home to work, many of us continue to work from home in some form or fashion. It’s clear that there has been a per manent shift in how many of us work and where we work, especially for those with office jobs.

A clear illustration of this is the recent announcement by health in surance giant Centene that it had scrapped its plans, midway through construction, for a new $1 billion, 3,200-job East Coast headquarters in Charlotte. Company officials cited how “more people prefer working from home or in a hybrid situation” as the primary factor for that deci sion.

These new, hybrid work-fromhome arrangements have raised questions about how these employees will be treated for incentive purposes by the state, especially under its flag ship Job Development Investment Grant (JDIG) program. Recently, the North Carolina Department of Com merce put that to bed by issuing guid ance on remote workers – guidance that provides flexibility and certainty to current JDIG grantees and compa nies that may seek one in the future.

In May 2022, the Economic Invest ment Committee (EIC), the governing board of the JDIG program, formally adopted JDIG guidance regarding re mote and partially-remote workers. This guidance includes two policy clarifications regarding the types of employees that may qualify as “Eli gible Positions” under the program (N.C. Gen. Stat. § 143B-437.51(7)).

The first clarification specifies how frequently an employee must report to the project facility to be considered

Pexels.com

a “New Employee” under a Commu nity Economic Development Agree ment (CEDA) – the formal name for a JDIG grant agreement. In part, the definition now explicitly provides that a “New Employee” is a “full-time employee hired for the Project, em ployed at the Facility, and reporting there at least four days a month.” Through this guidance, the new defi nition now applies to all CEDAs, cur rent and future, without the need to amend prior agreements.

Secondly, the EIC approved a mechanism to allow JDIG grant re

cipients to count remote workers, those not reporting to the Facility at least four days a month, towards its JDIG employment requirements. Specifically, the guidance further de fines a “New Remote Employee” as “a full-time employee hired for the Project, assigned to the Facility, and working from a home office within the State or a satellite location with in the State.” It is important to note that the remote employee’s home or satellite office must be located in North Carolina to meet the defini tion.

Current JDIG grantees must ap ply to the Department of Commerce to amend their CEDA if they want to take advantage of this flexibility and count remote workers toward their JDIG employment requirements. Though the amendment application process is not overly burdensome, it can take significant time to work through it. Therefore, we recommend that companies start the amendment process as soon as possible, but no later than three months before the due date of their next JDIG Grantee Annual Report.

These policy clarifications are es sential to companies with existing JDIGs but are equally important to North Carolina’s ability to remain competitive for future business ex pansion and recruitment projects.

David Spratley serves as Director of Economic Development for Nex sen Pruet. An experienced financel and economic development executive, David provides clients with guid ance and services related to corpo rate site selection, negotiating and securing business incentives, incen tives compliance and maintenance, and general economic development best practices. Before joining Nexsen Pruet, David served as the Senior As sistant Secretary for Finance at the N.C. Department of Commerce, where he managed the state’s incentives pro grams.

George Smith has successfully rep resented companies with relocation and expansion projects throughout the region, including site selection and negotiating with the state and lo cal officials on economic development incentives. He routinely interacts with state, county and city officials, includ ing economic and community devel opment groups, power companies, and utility providers.

DISMISSAL / Med mal suit vs. NC doctor survives dismissal

natively to transfer venue to North Carolina.

Durham, North Carolina.

Per the opinion, Kolls was contact ed because of his involvement in the Duke Telestroke Network Telemedi cine Consulting Program, a program that allows smaller regional hospi tals to obtain opinions from Duke University Hospital’s stroke special ists.

From North Carolina, Kolls exam ined and treated Corradi by use of videoconference and a mobile robot and drafted a consultation note fol lowing the exam. The attending phy sicians at the Martinsville hospital monitored and cared for Corradi by implementing Kolls’ recommenda tions.

Following the examination, Cor radi suffered a stroke. He alleged the stroke “would have been prevented by proper treatment” and brought a diversity medical malpractice case against Kolls and his employers.

In the claim, Corradi alleged Kolls “breached his duty of care while ex amining, assessing, and recommend ing treatment for Corradi specifically by failing to respond to Corradi’s complaints, signs, and symptoms.” Corradi further alleged his stroke “would have been prevented by prop er treatment.”

The defendants filed a motion to dismiss for lack of jurisdiction and for failure to state a claim, or alter

Motions denied

In addressing the defendants’ mo tions, Urbanski first ruled Corradi sufficiently alleged personal jurisdic tion and a plausible claim.

The judge cited a section of Vir ginia code defining the “originating site” of telemedicine services as “the location where the patient is located at the time the services are provided by a health care provider through telemedicine services.”

“Virginia’s definition of ‘telemedi cine services’ in §38.2-3418.16 fur ther supports a finding of personal jurisdiction over Dr. Kolls because his alleged tortious actions are con sidered to have occurred in Virginia since Corradi was located here,” Ur banski wrote.

Urbanski further established the links to Virginia, including the fact that the mobile robot was located in Martinsville, the computer network linked Kolls to the SOVAH Health Martinsville emergency depart ment and that Kolls consulted with Virginia physicians via the Duke Telestroke Program.

“The pleadings assert personal jurisdiction over Dr. Kolls under §8.01-328(a)(1) and (a)(2), because Dr. Kolls’ participation in the Duke Telestroke Program with SOVAH Health Martinsville would constitute

transacting business in Virginia and contracting to supply services in Vir ginia,” Urbanski wrote.

The judge further wrote that even if Kolls’ actions were considered to be in North Carolina, Corradi suf ficiently alleged that he caused tor tious injury in Virginia.

Urbanski wrote that the “mini mum contacts test” is also met be cause Kolls has engaged in the Duke Telestroke Program since 2016 for “about three to five weeks a year.”

“Personal jurisdiction is constitu tionally satisfied because Dr. Kolls could anticipate being subject to suit in Virginia because of his treatment, albeit by means of advanced technol ogy, of patients located in Virginia,” Urbanski wrote.

As for the additional motions, Urbanski wrote that Corradi “plau sibly alleges the existence of an ac tual agency relationship between Dr. Kolls, Duke Health, and PDC,” and thus sufficiently alleged personal ju risdiction over those entities.

In his amended complaint, Cor radi specified Kolls was an employee of the Private Diagnostic Clinic, or PDC, which operates as the “physi cian practice of Duke Health.”

Urbanski wrote that Corradi’s claim was backed up by various on line webpages as well as Kolls’ “pre sumably self-authored” LinkedIn profile, which “specifies that he is employed by Duke University Health

System.”

While finding Corradi sufficiently alleged personal jurisdiction over Duke Health and PDC, Urbanski noted that “whether these allega tions are borne out by the facts of this case following discovery is yet to be determined.”

Urbanski further ruled against transfer of venue to North Carolina, finding the defendants “have not met their burden of showing that the bal ance of equities or judicial economy and convenience favors transfer of this suit to the Middle District of North Carolina.”

“Corradi never entered North Car olina or availed himself of the protec tions that North Carolina law offers. In contrast, the amended complaint alleges that Dr. Kolls was licensed to practice medicine in Virginia and ‘maintained hospital privileges at the Virginia hospitals where he treats or treated patients via telemedicine,’”

Urbanski wrote.

The judge added that concerns exist about the convenience to wit nesses, of which a number are staff at SOVAH Health Martinsville.

This fact, wrote Urbanski, ren ders “a trial in the Middle District of North Carolina’s Durham courthouse less convenient to those witnesses.”

“Because the factors regarding transfer of venue do not weigh in defendants’ favor, the court will not transfer venue,” Urbanski wrote.

Introducing North Carolina’s newest lawyers

North Carolina Lawyers Weekly would like to congratulate each of the bar applicants who passed the July 2022 North Carolina bar examination. The following names were provided by the North Carolina Board of Law Examiners to recognize those who passed the July 2022 bar exam. Applicants who were successful on the July 2022 exam but have not yet taken or passed the MPRE or have not yet successfully completed the North Carolina State-Specific Component are not included on the BLE's list.

Nicholas David Acevedo Winston-Salem

Vincent Agosta Cary Aryana Ainolhayat Greensboro

Carly Alexa Amendola Raleigh

Andrew Arden Chapel Hill

Emily Arnold Concord Zahra Asadi Charlotte Katherine Nichols Ashburn Winston Salem

Tracy Ellen Ayotte Carrboro Lindsay Bacon Morrisville

Peyton Elizabeth Baer Raleigh

Cameron Talcott Bainbridge Charlotte Shauna Leigh Baker-Karl Chapel Hill Bruce Wilson Ballard Durham

Angelika Nicole Ballas Matthews

Emily Meagan Baranowski Raleigh William Grey Barker Winston Salem

Erin Leigh Basinger Coats Hanna Kae Bathrick Mooresville

Taylor M. Belknap Charlotte Jamie Bellomy Morrisville

Bouchra Benboussetta Cary Sarah Ann Benecky Winston-Salem

Alisa Best Virginia Beach, Virginia

Grayson Bethel Raleigh

Jessica Anne Blau Raleigh

Lauren Vogt Boone Charlotte Joshua Blake Boyd Chapel Hill Douglas Boyle Fairfax, Virginia

Kyle Kevin Bray Nashville

Michelle Denise Bredehoeft Raleigh

James Nicholas Brennan V Charlotte Elijah Broadwell Garner Victoria Anne Brooks Wilkesboro Brandon Brower Raleigh Allison Anne Bruns Garner Joseph Scott Buchanan Sanford Emily Dianne Burwell Boone Hannah Kate Caison Chapel Hill Eric Calero Durham

Lucy Campbell Raleigh Kacie Ann Campbell Asheville Mansell Jakob Carloni Morehead City

Blair Morgan Carpenter Charlotte Dayton Carter Douglasville, Georgia Nathalia Farias Cetertick Charlotte Megan Cicotte Charlotte Halie Marie Coates Bahama Megan E Cobb Chattanooga, Tennessee

Patrick Coffee Jr Lancaster, South Carolina Lauren K Cook Raleigh Emily Katherine Cooke Charlotte Tabitha Mandell Cooke Garner Ryan Marie Cooke Aberdeen Edward Scott Copeland Mooresville Katherine Anna Copeland Chapel Hill Kasey Hannah Corn Apex Kimberly Marie Cornella Raleigh Connor Michael Correll Charlotte Joseph Crim Haslett, Michigan Elliott Crosland Charlotte William Garrett Crotty Charlotte Earl Hampton Crumpler III Raleigh Laura Poston Cummings Kings Mountain Blake Logan Danser Spring Lake Ashley Elizabeth Davis Jacksonville, Florida Allan Michael Davis Jr Cary Maya Ashley Nicole Davis Raleigh Mary Elizabeth Davis Durham Clayton Houston Davis Elizabeth City Brian Patrick Daza Charlotte Paulina De Leon Raleigh Zachary Damian De Leon Charlotte Andrew Louis DeJoy Los Angeles, California

Patrick Shao Deng Winston Salem Chanyse Rene Dews Durham Danielle Barbara Dobosz Durham Christopher Beaudoin Dodd Chapel Hill Patrick Michael Dowd Waxhaw Carter Dwight Charlotte Jonathan Scott Earnest Raleigh Charles Tyler Ellenberg Bayboro Trey Ellis Chapel Hill Zechariah Carr Etheridge Greensboro Zachery Dean Everidge Selma Uju N Ezeigbo WinstonSalem

Laney Marie Ezzell Spring Hope Aaron Thomas Fadden Chapel Hill Eric Faidley Durham

Jacob Dawson Farrell Hillsborough Nathan D Fosnough Fort Wayne, Indiana Andrew James Franklin Shippensburg, Pennsylvania Justin Wyatt Freeman Linwood Kolin Funk Mooresville

Mathis Logan Gales Charlotte Lyne Starling Gamble III Charlotte Hope Garber Cary Andriel M Gary Apex

Ania Renee Gatewood Concord

Aaron Blaine Gavin Bessemer, Alabama

Joseph Matthew Geenen Chapel Hill

Derek Alan Gehring Charlotte Julia Gentile State College, Pennsylvania

Alex Nicole Gillie Durham Jordan Parrish Glassman Durham

Brandy Renee Godwin Zebulon

Allyson Elizabeth Gold Winston Salem

James Thomas Gooding III High Point

Kara Goray Raleigh

Taylor Patrick Gordon Winston-Salem

Gabrielle Gorman Charlotte

Lucy Randolph Green Charlotte Shanai KiShawna Green Durham Sabrina Yvonne Greer Greensboro

Kersten Griesbaum Spring Lake

Alexander Michael Guin Raleigh

Madeline Dent Guise Davidson

Griffin Liam Hamilton Chapel Hill MaryAnne M Hamilton Raleigh Bennett McClain Hardymon Fort Mill, South Carolina

Evan Benjamin Harrell Raleigh Nickolas John Harrelson Charlotte Mary Katherine Harris Fuquay Varina Parker Williams Hassard Raleigh Nicole Hemke Lynchburg, Virginia

Caroline Carlyle Henderson Raleigh Sara Marie Henderson Mooresville

Cierria Wyleka-Marche’ Hendricks Durham Kess Hendrix Durham Abbie Nicole Hibsch Herndon, Virginia Logan Connor Highlander Burlington Madison Creed Hildebrandt Archdale Marissa Gabrielle Hill Tuxedo

Cassandra Jamie Hoben Columbus, Georgia Samuel Bracky Holder Mount Airy Michael Holloway Raleigh Jeffrey Marlon Holmes Jr. Charlotte Devin Lee Honbarger Raleigh Mikaela Elizabeth Hoover Lynchburg, Virginia Jamila LeRon Horne Raleigh Hannah Lee Hubbard Durham Marvin Adam Hudson Raleigh Wiley Bishop Hughes Winston-Salem Benjamin James Hughes Raleigh Thomas Nelson Hughes Jr Raleigh Harrison Beaumont Hull Durham Brage Asheford Humphries Waxhaw Clara G. Ilkka Charlotte Lindsey Jackson Raleigh Kionie James Greensboro Tyler Charles Jameson Oak Ridge Charles Xavier Jenkins Winston-Salem Thomas Joa Charlotte Kathryn Alexandria Johnson Thomasville Laura Elizabeth Johnson Winston-Salem George David Johnson Charlottesville, Virginia Zackery Johnson Suwanee, Georgia Lauren Nicolle Johnson Goldsboro Ryan D Johnson Winston-Salem Katherine Landin Johnston Raleigh Christian Riley Jones Fort Mill, South Carolina Gerrod Marvin Kendall Durham Luke A Kessel Hickory Grace Elizabeth Ketron Waxhaw Salem Dare Kirkman Pilot Mountain Jordan Alexander Koonts Cary Drew Meade Kromer Charlotte Mikaela Chesney Kronk Lincolnton Jake Austin Kruger Salisbury Ayowunmi Rosalyn Kuforiji Greensboro Cory Matthew Lambert Raleigh Jarrett Evan Ledford Kings Mountain Samantha Lynn LeJune Asheville Mindy Luscely Lemus Durham Julia Burton Leopold Charlotte Kyle George Lesmes Raleigh Robert Harrison Levin Greensboro Benton David Lewis Lexington, South Carolina Claire Lieberman Fayetteville

Sierra Paige Lindquist Holly Springs Dakota Mills Lipscombe Wilmington Nikol Litvan Hubert Justin Bernard Lockett Rolesville Tanner John Lockhead Durham Avery Jo Locklear Landis Hanna Long Charlotte Roger Aaron Love Durham Erin Nicole Lowder Durham Samantha M Lubin Stafford, Virginia

Mitchell Lucas Durham Parker Seaton Lucas Raleigh Timothy Lyons Morrisville Bryant Madison Chapel Hill Timothy Jackson Maguire Winston-Salem Adhitya Mahesh Novi, Michigan Alaina Jewel Malarney Wanchese Abigail Maner Burlington John Thomas Marbut Raleigh Caroline Paige Margolis Raleigh Zachary Aaron Marks Wilmington Theodore John Marsh Jr Creedmoor Mitchell Jordan McCaffity Durham Ryan A. McCollum Apex Daniel James McCrorie Raleigh Dreshawn McFadden Charlotte Garvey McKee Albuquerque, New Mexico

Xavier Jamil McLean Richlands

Riley Elaine McMillan Charlotte

William Metcalf Fletcher

Erica Christine Miller Crouse

Breanna Eleese Miller Winston Salem

Savannah N. Morgan Mt. Ulla

Kailey Madison Morgan Durham

Richard Hunter Morris Tarboro

Gabrielle Lauren Motsinger Chapel Hill

Kristen Nicole Mulder Raeford

Justice P Mullen Hendersonville

Jonathan Eugene Nail Mount Holly Elizabeth Allesandra Napps Winston Salem

Jenna Lynn Nichols Pilot Mountain

Jesse Offchiss Winston Salem

Rachel Ormand Raleigh Justin Owens WIlson

Rebeka Lynn Parent Raleigh

Yanping Jiao Parks Raleigh

Roshni Mahendra Patidar Charlotte Alison Jean Patterson Winston-Salem

Krista Skyler Peace Raleigh

Kelley Mary Petcavich Chapel Hill

Elizabeth G Peters Charlotte

Andrew Reid Peterson Greenville

Hunter Grey Pethel Raleigh Andrew Philip Chapel Hill

Itane Omoyeye Coleman Phillips Winston-Salem Telana Poe Raleigh

Savannah Kate Putnam Morganton Marissa Sierra Ramirez Chapel Hill

John Rankin Esq. Charlotte Nigeria Zhane’ Ravenel Durham Tanner Ray J.D. Raleigh

Lauren Ashley Redmon Asheville Joseph Reed Redwood Shores, California Rebecka Elisabet Reibe Raleigh Hunter F Revord Charlotte Miles Jensen Reynolds Charlotte Kaleigh Patricia Reynolds Forty Fort, Pennsylvania

Lillie Lee Rhodes Farmville Christopher Earl Rhodes Jr. Durham Joseph Palmer Riddle IV Raleigh

Camila Rivadeneira Deerfield Beach, Florida Ashton Rizzi Winston-Salem Mary Skye Robertson Raleigh William Charles Aaron Rubin Durham Chelsea Alexa Rush Forest City

Grace Marie Russ Pinehurst Jaguar Hattari Sasmito Sacramento, California Connor Scharff Raeford Evelyn Viola Pro Sechler Chapel Hill Rohun Sanjay Shah Fayetteville Brigid Eileen Sharek Charlotte Christie Nicole Shaw Cary Alexander MacLean Sherret Bowling Green, Kentucky Kristen Marie Sherwood Vestavia Hills, Alabama Shrayan Ryba Shetty Durham Cameron Blake Silverglate Austin, Texas Adam Skrzecz Raleigh Elizabeth Darden Smith Wilson Andrew Thomas Smith Burlington Victoria Smith Seymour, Tennessee Sterlina Henson Smith Raleigh Chanon Smith Chapel Hill

Catrina Lauren Spagnualo Raleigh Carolyn Ruth Vernon Spilker Newton Brittany Alexandria Spisak Winston-Salem

Christina Marie Staudt Lakeview Courtney Ann Stevens Raleigh Katarina Dana Stockton Chapel Hill

Gabrielle Elise Supak Wilmington Alec Suttle Chapel Hill Haley Tanner Chapel Hill Nicole S. Tashovski Raleigh

Ann Marie Taylor Cameron A’Kira Thomas Suffolk, Virginia

Chapman Karlsson Thomas Raleigh

Zachary Robert Tilley Carrboro

Kimberly Michelle Tomkies Charlotte Evaline Tsai Durham Karmen Tubbs Mableton, Georgia

Anna Claire Tucker Charlotte Lauren Elizabeth Tuffo Charleston, South Carolina Tanakorn Vachareeyanukul Winston-Salem

Raylena Elizabeth Vines Jacksonville Michael Joseph Vitale III Raleigh Dalen Ward Greensboro Brady Genis Webb Charlotte Xaviera Jasmine Webb Sumter, South Carolina Max Weiss Athens, Ohio

Ashley Henehan Willard Winston-Salem

Emilee Rose Winter Charlotte Blake Monroe Witty Asheville Jessica H. Wollum Winston Salem

Chazle’ Nashea Woodley Durham Andrew Frederic Ohlinger Wright Burnsville

Tyler W Wyckoff Lindsay, California

Shanicia Nicole Young Roper

Ting Zheng Cary Alexander Luka Zupancic Raleigh

Opinions

Civil Practice

Personal Jurisdiction – Helicopter Crash – Foreign Manufacturers

German helicopter manufac turer Airbus Helicopters Deutsch land GmbH (AHD) only sells and delivers its products in Germany. Although AHD has an interactive informational website, Keycopter, there has been no showing that Keycopter has a commercial na ture from paid subscriptions. No evidence tends to show AHD mar keted, sold or delivered its prod ucts to North Carolina. The mere manufacture and introduction of a product into the world’s stream of commerce without purposeful availment is insufficient to estab lish personal jurisdiction in North Carolina.

We reverse the trial court’s de nial of the motion to dismiss filed by defendants AHD and Safran He licopter Engines (SHE).

SHE’s Arriel 1E2 engines pow ered the helicopter at issue. The en gine is not a consumer product. It is manufactured, marketed, distribut

ed, and sold solely as a component product for helicopters. SHE has never sought nor served a market in North Carolina for standalone helicopter engines. SHE has never advertised, sold, or distributed any engines for sale to individual users or consumers in North Carolina.

Beyond worldwide stream of commerce, SHE also has not pur posefully availed itself of our forum. The mere introduction of a product into the stream of commerce with out purposeful availment is insuf ficient to establish jurisdiction.

Bartlett v. Estate of Burke (Law yers Weekly No. 011-129-22, 27 pp.) (John Tyson, J.) Appealed from Durham County Superior Court (David Hall, J.) Gary Robb, Anita Porte Rob, Brittany Sanders Robb, Christopher Edwards, Amanda Dure, Joseph Anderson, Charles Mast, Nichole Booker, James Crouse, Alex Hagan, Kelly Margo lis Dagger, Kathryn Grace and Wil liam Katt for appellees; Christo pher Tomlinson, Anthony Lathrop, Eric Strain, Paul Stinson, Martin Warf, William Starr and Stuart Brown for appellants. 2022-NC COA-588

Real Property

HOA Foreclosure – Rule 60 Set Aside – Attorney’s Fees – Restitution

Because petitioners’ home was foreclosed upon after improper ser vice of notice, the trial court granted petitioners’ N.C. R. Civ. P. 60 motion to set aside the foreclosure. Given the broad language of G.S. § 47F-3-116, petitioners were the prevailing party in a civil action relating to the collec tion of assessments; accordingly, they were entitled to attorney’s fees under the statute.

We reverse and remand as to the trial court’s denial of petitioners’ claims for attorney’s fees and restitu tion. We affirm the trial court’s denial of the intervenor’s request for restitu tion of its purchase price.

The North Carolina Planned Com munity Act provides in part that “[a] ny judgment, decree, or order in any judicial foreclosure or civil action re lating to the collection of assessments shall include an award of costs and reasonable attorneys’ fees for the pre vailing party[.]” G.S. § 47F-3-116(g).

The action created by § 47F-3-116 is one in which a homeowners’ as sociation forecloses on a lien created under § 47F-3-116(a) for unpaid as sessments.

In order for petitioners to recover under § 47F-3-116(g), they must es tablish (1) that they were the prevail ing party and (2) that they prevailed in a civil action relating to the collec tion of assessments.

Petitioners have successfully chal lenged the order permitting foreclo sure of the home. In granting peti tioners’ Rule 60 motion, the trial court set aside the foreclosure sale and the subsequent transfers of the deed for lack of proper service, thereby grant ing the relief sought by petitioners.

Accordingly, petitioners are a “pre vailing party” under § 47F-3-116(g).

We are confident that such a result fits within the broad reach of “prevail ing” in “any judgement, decree, or order.” The intervenor’s contention that petitioners must “prevail” in the underlying foreclosure action is an impermissibly narrow reading of the statute.

The broad nature of the statute’s language convinces this court that the Rule 60 motion is included within the meaning of “any . . . civil action relat ing to the collection of assessments.”

Restitution

After the foreclosure, petitioners were excluded from their home, and the home was partially demolished.

“If a judgment is set aside pursu ant to Rule 60(b) or (c) of the Rules of Civil Procedure and the judgment or any part thereof has been collected or otherwise enforced, such restitu tion may be compelled as the court directs.” G.S. § 1-108.

The recovery of a partially demol ished home is a strikingly insufficient remedy for the extensive damages that petitioners have suffered from the defective foreclosure proceeding and the respondent-homeowners’ as

.

sociation’s and intervenors’ actions in bad faith. Refusal to award any form of restitution here is manifestly un supported by reason, and is thus an abuse of the trial court’s discretion.

The intervenor sought restitution for the $2,650.22 purchase price of the voided foreclosure sale. The trial court refused to award restitution to the intervenor.

The record reveals that the inter venor was made aware of the notice defect. Thereafter, the intervenor declined to allow petitioners to re purchase the property for the auc tion price. The intervenor instead de manded that petitioners pay $150,000 to have the property returned and “al most immediately” sold the property to another entity for $150,000.

It was reasonable for the trial court to have determined that the in tervenor’s actions in bad faith bar its recovery. The intervenor’s unclean hands provided the trial court with a rational basis for declining to disgorge respondent of this benefit.

Affirmed in part, reversed in part and remanded.

In re George (Lawyers Weekly No. 011-130-22, 12 pp.) (Jefferson Grif fin, J.) Appealed from Mecklenburg County Superior Court (Nathaniel Poovey, J.) James Galvin for petition ers; Michelle Massingale Dressler for respondent; Preston Odom and Der ek Adler for intervenors. 2022-NC COA-591

Constitutional

Public Trust – Right to Fish – Fishery Depletions – Sovereign Immunity –First Impression

On a matter of first impression, the court determines that sovereign im munity does not bar a claim seeking to compel the state to enforce obliga tions under the public trust doctrine – in this case, the duty to protect fish eries on public trust lands for the ben efit of the general public.

We affirm the trial court’s denial of the state’s motion to dismiss.

Plaintiffs allege that the state has breached its public-trust doctrine duty to protect fisheries by allowing “commercial fishing practices that re sult in substantial wastage of coastal fish stocks or their prey species, or result in critical habitat destruction.

. . As a result, stocks of multiple fish species . . . have declined precipitous ly—84 to 98 percent—since the last major fisheries management reform legislation was enacted in North Car olina in 1997.”

Public Trust Doctrine

The public trust doctrine is a com mon law principle providing that certain land associated with bodes of water is held in trust by the state for the benefit of the public. Public trust rights attach to public trust lands and include, but are not limited to the right to navigate, swim, hunt, fish and enjoy all recreational activities offered by public trust lands. More

over, the state’s wildlife population is a natural resource of the state held by it in trust for its citizens.

There is a definite distinction be tween the state’s interest in public trust lands and the state claiming title to property against a private party, as might give rise to an action under G.S. § 41-10.1.

Furthermore, only the state has standing to bring suit against a pri vate corporation seeking non-indi vidualized, or public, remedies for al leged harm to public waters under the public trust doctrine.

Applying these principles to the case sub judice provides more context for plaintiffs’ claims.

First, as plaintiffs allege, protect ing fisheries falls within the purview of the public trust doctrine, and the state can no more abdicate this duty than it can abdicate its police powers in the administration of government and the preservation of the peace.

Second, plaintiffs are not asserting rights of ownership or exclusive ac cess to public trust lands. To the con trary, plaintiffs’ claims are broadly premised on the state’s dominion over public trust property and obligation to enforce the public trust.

Third, and concomitantly, plain tiffs are not attempting to enforce public trust rights against a private party—i.e. suing commercial fisher men for their role in the depletion of fish populations. Instead, plaintiffs are bringing an action directly against the state for an alleged breach of its obligation to manage and protect fisheries for the benefit of the general

public.

Given this particular context, it does not appear that our courts have had opportunity to directly address whether sovereign immunity bars the type of claim brought by plaintiffs seeking to compel the state to enforce alleged obligations under the public trust doctrine.

Application of sovereign immunity in this case would effectively reduce the public trust doctrine to nothing more than a fanciful gesture and prevent judicial review, as a plaintiff would never have the opportunity to enter the courthouse doors and pres ent his claims.

Plaintiffs are not requesting that the state compensate a private indi vidual/corporation for alleged dam ages but are seeking an injunction preventing the state from committing breaches of its alleged obligations un der the public trust doctrine. Thus, be cause of the nature of the public trust doctrine as a tool for judicial review of the state’s actions as trustee of fisher ies, we conclude sovereign immunity does not apply in this case. Therefore, plaintiffs’ claims for declaratory and injunctive relief against the state for breach of its alleged duties under the public trust doctrine are not barred by sovereign immunity.

Direct Constitutional Claims

Assuming a public trust doctrine claim is otherwise barred by sover eign immunity, plaintiffs’ complaint also presents sufficient allegations of claims arising directly under the state constitution.

N.C. Const. art. XIV, § 5 states, “It shall be the policy of this State to con

serve and protect its lands and waters for the benefit of all its citizens. . . .”

N.C. Const. art. I, § 38 states in part, “The people have a right . . . to hunt, fish, and harvest wildlife, subject only to laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wild life conservation and management and (ii) preserve the future of hunting and fishing.”

Plaintiffs have sufficiently alleged that the state breached these consti tutional provisions by mismanaging North Carolina’s coastal fisheries resources. No other adequate state remedy exists for these claims. There fore, sovereign immunity does not bar plaintiffs’ direct constitutional claims. Affirmed.

Coastal Conservation Association v. State (Lawyers Weekly No. 011131-22, 27 pp.) (Toby Hampson, J.) Appealed from Wake County Supe rior Court (Bryan Collins, J.) Keith Johnson, Andrew Erteschik, John Michael Durnovich and Stephanie Gumm for plaintiffs; Scott Conklin and Marc Bernstein for defendant; Alex Hardee, Derb Carter and John Korzen for amici curiae. 2022-NC COA-589

Criminal Practice

Juvenile – Undisciplined – Contempt – Delinquency

Even though the juvenile was originally adjudicated undisciplined

for truancy, since he then violated his disposition order by skipping school on multiple occasions, the trial court could find him in indirect contempt and adjudicate him delinquent.

We affirm the trial court’s denial of the juvenile’s motion to dismiss.

In re B.W.C. (Lawyers Weekly No. 011-132-22, 7 pp.) (John Arrowood, J.) Appealed from Gaston County Dis trict Court (Angela Hoyle, J.) Benja min Szany for the state; Jillian Fran ke for appellant. 2022-NCCOA-590

Trusts & Estates

Spouse’s Elective Share – Joint Ac counts Presumption – Statutory Amendment

A testator left his entire estate to his son, omitting his wife of 45 years. The father and son also held joint bank accounts. When the clerk of court ruled on the wife’s petition for an elective share, the clerk included the joint bank accounts in the testa tor’s estate, following G.S. § 30-3.2(3f) (c)(2)’s presumption that the decedent had contributed the jointly owned property. However, by the time the superior court heard the son’s appeal, the statute had been amended to pre sume that joint tenants had contrib uted in-kind in accordance with their respective shares, and the amend ment applied to any estate that was not final. Rather than recalculating the value of the testator’s estate un der the amended version of the stat

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ute, the superior court should have remanded the matter to the clerk of court with instructions to apply the amended statute.

We vacate the superior court’s or der and remand to the superior court with instructions to remand to the clerk of court for further proceedings.

In re Estate of Gerringer (Lawyers Weekly No. 011-133-22, 13 pp.) (Al legra Collins, J.) Substituted opin ion. Appealed from Guilford County Superior Court (Lora Cubbage, J.) Benton Sawrey and Kemp Mosley for petitioner; Casey Garringer, pro se. 2022-NCCOA-592

Tort/Negligence

Wrongful Death Claim – Gross Con tributory Negligence – Intoxicated Customer – Lake

Plaintiff’s decedent arrived at de fendants’ commercial property al ready intoxicated, and he consumed more alcohol there. There was a lake adjoining defendants’ property, but no fence, warning signs, or “no swim ming” signs were posted around the lake, nor was any security personnel present to prohibit decedent from jumping into the lake. Decedent jumped into the lake twice. The first time, his friends were able to pull him out, but the second time, they lost sight of him, and decedent drowned. Decedent’s gross negligence – volun tary intoxication (a blood alcohol con tent of 0.37, according to the medical examiner) and twice jumping into the lake – bars any recovery for negli gence from defendants.

We affirm the trial court’s grant of defendants’ motion to dismiss.

Lovett v. University Place Owner’s Association, Inc. (Lawyers Weekly No. 011-134-22, 7 pp.) (John Tyson, J.) Ap pealed from Mecklenburg County Su perior Court (Gregory Hayes, J.) Gary Mauney for plaintiff; Zachary Walton, Heather Connor and Kenneth Raynor for defendants. 2022-NCCOA-594

Domestic Relations

Parent & Child – Termination of Parental Rights – Infant’s Multiple Unexplained Injuries

The respondent-Mother claimed to believe the emailed explanation of baby “Ken’s” father that he had accidentally dropped Ken; however, (1) Mother showed no curiosity but simply accepted this explanation, (2) the explanation – which said Mother was away when the father said he dropped Ken – contradicted Mother’s claim that Ken was continually in her care, and (3) Mother’s own expert said the father dropping Ken would not explain the infant’s multiple inju ries and poor state of health when the parents brought him to the hospital. Under these circumstances, the trial court properly considered the lack of an explanation for Ken’s poor health and multiple injuries in determining that a repetition of neglect was likely. We affirm the termination of Moth er’s parental rights to Ken and his el der brother, Mark.

While Mother emphasizes a paren tal capacity expert’s evaluation and her parenting instructor’s feedback, the trial court made numerous find ings explaining why it gave reduced weight to this evidence. When the trial court ordered that petitioner cease reunification efforts, the court

noted that the parenting class was mainly about babyproofing the home and what to do when a child is sick or injured. The court stressed that more was needed, especially an explana tion of Ken’s injuries so as to ensure his future health, safety and welfare. Nevertheless, Mother did not attend any more parenting classes.

Mother contends her “only failure was being unable to explain Ken’s 2017 injuries to the personal satisfac tion of the Judge, which is an insuffi cient basis to eliminate reunification” under In re J.M., 276 N.C. App. 291, 2021-NCCOA-92. In re J.M. has been stayed by supersedeas pending a deci sion by our Supreme Court.

Moreover, In re J.M. is distinguish able from this case. In In re J.M., nei ther parent was charged with any criminal offense arising from “Nel lie’s” injuries, as were the parents here. As relevant to the evidence re garding how the injuries may have oc curred and the trial court’s evaluation of that evidence, this court noted in In re J.M. that DSS had not conducted a proper investigation of the injuries, leaving open a question as to whether either parent actually caused the in juries. Specifically, two older stepsiblings, ages 10 and 14, lived in the home with Nellie and her parents, but DSS did not interview the respon dent-mother’s older two children in the home during their investigation of Nellie’s injuries.

Furthermore, In re J.M. turned on two key facts: (1) the mother there “engaged in all services required of her in order to correct the conditions that led to the removal of the children and that she had objectively learned from and benefitted from the services” and (2) the mother acknowledged the child’s injuries were “nonaccidental” but could not explain the cause of the injuries because she was not present for them. As to the first fact, the trial court here found, in a series of un challenged findings of fact, Mother’s parental capacity evaluation and par enting class did not correct the condi tions of removal because they failed to fully address the still unexplained na ture of all of Ken’s injuries. As to the second fact, while Mother acknowl edged the father’s emailed explana tion and believed it, the trial court still had concerns about the plausibil ity of Mother’s explanations of events and her lack of interest in trying to learn more information about what happened to Ken.

In terminating Mother’s parental rights, the trial court did not shift the ultimate burden of proof to Mother. Rather, the trial court addressed Mother’s lack of explanation because it was relevant to its consideration of two grounds for terminating parental rights DSS alleged, namely Mother’s abuse or neglect of the children and her willful failure to make “reason able progress . . . in correcting those conditions which led to the removal of the juvenile.” G.S. § 7B-1111(a)(1)–(2). The lack of explanation speaks to the likelihood of future neglect or abuse. The trial court’s focus on Mother’s lack of explanation did not shift the burden to her but rather helped it evaluate whether DSS had met its burden as to the grounds for adjudication.

When the trial court found Mother continues to have no explanation, it in essence found Mother had no rea sonable or even medically defensible explanation for Ken’s injuries, and Mother could not credibly believe the father’s explanation since his email did not account for the full extent of the injuries. That sort of credibil

ity determination is within the trial court’s purview, and we cannot dis turb it on appeal.

Moreover, a parent’s refusal to make a realistic attempt to under stand how her child was injured can help support a trial court’s conclusion that the neglect is likely to reoccur.

As to Mark, the definition of ne glect includes living in an environ ment injurious to the juvenile’s wel fare, and neglect can include failing to prevent injuries like the ones here. The trial court properly determined that both Ken and Mark can be con sidered neglected, via the likelihood of future neglect and abuse, based on Ken’s injuries alone.

While the fact of prior abuse alone is not enough, a parent’s lack of ac ceptance of responsibility can be a required additional factor to suggest that the neglect or abuse will be re peated. The trial court could rely on the prior abuse and neglect of Ken plus Mother’s lack of explanation for Ken’s injuries and condition when he arrived at the hospital to determine Mark was also a neglected juvenile because of the likelihood of future neglect or abuse. The trial court also noted that the parents had a pattern of refusing medical treatment for both children.

Affirmed.

In re M.T. (Lawyers Weekly No. 011-135-22, 95 pp.) (Donna Stroud, C.J.) Appealed from Durham County District Court (Shamieka Rhinehart, J.) Jeffrey Miller and Elizabeth Simp son for respondent; Michelle For muDuval Lynch and Matthew Wun sche for guardian ad litem; Derrick Hensley, Elizabeth Kennedy-Gurnee for petitioner; Jaclyn Maffetore, Kath leen Lockwood, Nisha Williams, Lau ra Holland, Quisha Mallette, Sarah Laws and Abraham Rubert-Schewel for amici curiae. 2022-NCCOA-593

Workers’ Compensation

Safety Violation – Termination – Con structive Refusal – Seagraves Inap plicable

The plaintiff-truck driver’s viola tion of a safety rule – closing his eyes for seven to ten seconds while driving – caused the accident in which he sus tained compensable injuries, and the defendant-employer fired him for the rule violation. Plaintiff’s termination for violating a work rule did not enti tle defendant to also terminate plain tiff’s workers’ compensation benefits. We affirm the Industrial Commis sion’s award of benefits.

Facts

After the 3 August 2019 single-ve hicle accident which caused plaintiff’s compensable back injury, defendant paid indemnity and medical benefits. On 15 August 2019, plaintiff was re leased to return to sedentary work.

However, on 29 August 2019, de fendant fired plaintiff for violating a safety rule, making him ineligible for rehire. As a result of this decision, defendant refused to offer plaintiff light work or vocational rehabilitative services to assist plaintiff in locating suitable employment.

After being released from his doc tor’s care on 3 February 2020, plaintiff sought work on his own, but he was unable to find a job within his restric tions. On 30 April 2020, plaintiff filed a request for hearing, alleging that defendant had refused to pay past due temporary total disability benefit un

derpayment. A deputy commissioner ordered defendants to pay temporary total disability benefits until plaintiff returned to work or until compensa tion was legally terminated, and the full Industrial Commission affirmed.

Constructive Refusal

Under Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 399 (1996), and McRae v. Toastmaster, Inc., 358 N.C. 488, 597 S.E.2d 695 (2004), an employer may stop paying workers’ compensation benefits to an employee who has suf fered a compensable injury if (1) the employee was terminated for miscon duct, (2) the same misconduct would have resulted in the termination of a nondisabled employee, and (3) the termination was unrelated to the employee’s compensable injury. An employer’s successful demonstration of such evidence is deemed to con stitute a constructive refusal by the employee to perform suitable work.

The employee’s constructive refusal would bar benefits for lost earnings, unless the employee is then able to show that his or her inability to find or hold other employment at a wage comparable to that earned prior to the injury is due to the work-related disability. The employer bears the burden to show, by the greater weight of the evidence, that a plaintiff’s ter mination was unrelated to his or her work-related injuries.

The injured employees in Sea graves and McRae were terminated from rehabilitative employment. Here, the Commission observed that plaintiff “was not terminated from rehabilitative employment for mis conduct unrelated to his admittedly compensable injury. Rather, Plain tiff in this case was terminated from his regular job for his role in the very accident that caused his admittedly compensable injury.” Accordingly, the Commission concluded that “[t]he op erative facts in the case before us are substantially different than those in Seagraves and McRae” and therefore, “[g]iven these fundamental factual differences, the Seagraves test is not applicable in this case.”

In seeking to apply the Seagraves test to cases such as this—in which the injured employee was terminated for causing the accident that result ed in his injury and so, pursuant to the employer’s policies, has not and avowedly will not be offered suitable employment—defendants essentially ask this court to impose a for-cause bar to recovery of workers’ compen sation benefits when the employee is unable to find suitable employment elsewhere. Defendants’ position is fundamentally incompatible with the well-established principles and pur poses of the workers’ compensation system, which deliberately eliminates negligence from its calculus in all but certain narrowly defined instances.

Under the Workers’ Compensation Act, not even gross negligence is a de fense to a compensation claim. Only intoxication, the unauthorized use of controlled substances, or injury inten tionally inflicted will defeat a claim.

An employee’s violation of a safety rule does not of itself constitute a bar to recovery of compensation where it may be determined that his injury arose in the course of the employ ment.

Ultimately, the Seagraves rule aims to provide a means by which the Commission can determine if the cir cumstances surrounding a termina tion warrant preclusion or discontin

uation of injury-related benefits. The rule does not apply here.

Affirmed.

Richards v. Harris Teeter, Inc. (Lawyers Weekly No. 011-136-22, 14 pp.) (Valerie Zachary, J.) Appealed from the Industrial Commission. Ca mille Payton for plaintiff; Alexander elmes and Edward Sweeney for de fendants. 2022-NCCOA-595

Criminal Practice

SBM – 30 Years – Recidivist & Abuse of a Minor – Risk of Reoffending

Where defendant not only is a re cidivist, but also committed an of fense involving the physical, mental or sexual abuse of a minor, defendant does not fall into the unsupervised, recidivist-only class exempted from lifetime monitoring under State v. Grady, 327 N.C. 509, 831 S.E.2d 542 (2019).

The trial court did not err in impos ing satellite-based monitoring (SBM) for a period of 30 years.

We note that the Legislature amended our SBM regime just sever al months after the trial court entered its order from which defendant now appeals. Those legislative amend ments provide in part that defendant may petition the trial court to modify or terminate his SBM enrollment, and the trial court must cap the term at ten years. Since defendant has been enrolled in SBM for more than ten years, he can obtain a court order terminating that enrollment today.

Defendant also argues that, in light of the fact that he had not reof fended while in the community for ten years, the trial court misunderstood defendant’s original STATIC-99 risk of reoffending. Even if this were true, the trial court made sufficient addi tional findings based on competent evidence to support the “highest level of supervision”: (1) defendant scored a “4” on his more recent Static-99R; (2) defendant authored a letter prior to his 2008 conviction saying he would “do it again when [he] g[o]t out”; (3) defendant’s prior record level was IV; (4) defendant had been convicted of six counts of taking indecent liber ties and had disclosed to his therapist that he had impregnated a 14-yearold when he was in college, forcing the child to have an abortion; (5) defen dant had not completed sex offender treatment either while in prison or since his release; (6) he abused a posi tion of trust and authority in perpe trating the sex offenses; (7) defendant had several non-compliance issues with his monitoring device after his release; and (8) based on a psychoevaluation of defendant, defendant had minimized his criminal conduct which “could be a sign of dishonesty.” The trial court made sufficient find ings to support its determination that defendant required the “highest pos sible level of supervision and monitor ing” for a term of 30 years.

Affirmed.

State v. Cheers (Lawyers Weekly No. 011-137-22, 16 pp.) (Lucy Inman, J.) Appealed from Brunswick Coun ty Superior Court (Jason Disbrow, J.) Sonya Calloway-Durham for the state; Dylan Buffum for defendant.

2022-NCCOA-597

Criminal Practice

Search & Seizure – First Impression – Standing – FedEx Package – Indus trial Hemp

Where a law enforcement offi cer’s removal of a package from a Federal Express conveyor belt was brief and did not significantly in terfere with the package’s timely delivery, the defendant-addressee lacks standing to assert a violation of his Fourth Amendment rights.

We find no prejudicial error in de fendant’s convictions for conspiracy to traffic marijuana by transporta tion, possession with intent to sell or deliver marijuana, felony posses sion of marijuana, felony keeping or maintaining a storage unit for keeping or selling controlled sub stances, felony keeping or main taining a dwelling for keeping or selling controlled substances, and possession with intent to sell or de liver delta-9-tetrahydrocannabinol (THC).

Fourth Amendment

The mere fact that the target package was addressed to defen dant is insufficient to vest defen dant with standing to assert the various Fourth Amendment argu ments he advances.

Although a person has a legiti mate interest that a mailed pack age will not be opened and searched en route, there can be no reason able expectation that postal service

employees will not handle the pack age or that they will not view its ex terior.

Although the appellate courts of North Carolina have not direct ly addressed Fourth Amendment standing in the context of postal interdiction, we find persuasive the Ninth Circuit’s holding that “for the purposes of the Fourth Amend ment, no seizure occurs if a pack age is detained in a manner that does not significantly interfere with its timely delivery in the normal course of business.” United States v. Quoc Viet Hoang, 486 F.3d 1156 (9th Cir. 2007), cert. denied, 552 U.S. 1144 (2008).

Even if defendant had standing, the delay of approximately five to ten minutes to procure an on-site canine unit for a drug sniff of an ap parently suspicious package did not significantly interfere with the tar get package’s timely delivery in the normal course of business. Accord ingly, we disagree with defendant’s argument that the mere removal of the target package from the con veyor belt for a drug dog sniff was a “seizure” implicating the Fourth Amendment.

Neither was certified narcotics detector dog Hydro’s drug sniff a “search” implicating defendant’s Fourth Amendment rights. And, given that Hydro alerted to the tar get package in a lineup, the trial court correctly concluded “that based upon the totality of the cir cumstances, probable cause existed

Donald

for the issuance of the search war rant for the parcel.”

Taken together, neither the removal of the package nor the drug dog sniff violated defendant’s Fourth Amendment right to be free from unreasonable searches and seizures because under the facts presented, those acts constituted neither a seizure (the removal) nor a search (the drug dog sniff). Rath er, those acts, viewed in the totality of the circumstances, merely pro vided further support an investiga tor’s determination that probable cause existed to obtain a search warrant to open the target package.

Industrial Hemp

The majority of defendant’s re maining issues on appeal stem from our General Assembly’s le galization of industrial hemp. Our General Statutes define “industrial hemp” as “[a]ll parts and varieties of the plant Cannabis sativa (L.), cultivated or possessed by a grow er licensed by the [North Carolina Industrial Hemp] Commission, whether growing or not, that con tain a [THC] concentration of not more than three-tenths of one per cent (0.3%) on a dry weight basis.” G.S. § 106-568.51(7).

Although our appellate courts have yet to fully address the effect of industrial hemp’s legalization on the panoply of standards and proce dures applicable during the various stages of a criminal investigation and prosecution for acts involv ing marijuana, the federal courts of North Carolina have considered some of these issues.

For example, in United States v. Harris, No. 4:18-CR57-FL-1, 2019 WL 6704996, at *3 (E.D.N.C. Dec. 9, 2019), the Eastern District ex plained that “the smell of marijua na alone . . . supports a determina tion of probable cause, even if some use of industrial hemp products is legal under North Carolina law. This is because ‘only the probabil ity, and not a prima facie showing, of criminal activity is the standard of probable cause.’”

We hold that the passage of the Industrial Hemp Act, in and of it self, did not modify the state’s bur den of proof at the various stages of our criminal proceedings.

Defendant argues that the indict ment was facially defective because it failed to specifically allege that he possessed “an unlawful quanti ty” of THC. However, regardless of the passage of the Industrial Hemp Act, the concentration of THC is not an element of the offense of pos session with intent to sell or deliver THC.

With respect to the “brown ma terial” seized, the state’s forensic chemist testified that “[t]here was no plant material present” in her macroscopic identification of the solid brown material. Even if we accepted defendant’s implicit argu ment that the brown material was a “part” or “variety” of the plant Cannabis sativa, defendant makes no argument that he was “a grow er licensed by the [North Carolina Industrial Hemp] Commission,” or that the brown material was culti vated by such a licensed grower, as the statutory definition of “indus trial hemp” requires. Because the brown material was not “industrial hemp” as defined by the Industrial Hemp Act, the state was not re quired to present evidence that the

substance contained 0.3% or more of THC by dry-weight concentra tion in order to meet its burden of proof for the offense of possession with intent to sell or deliver THC.

Although expert analysis is re quired to prove some substances are controlled substances, marijua na has been excepted from this rule. Defendant argues that the legaliza tion of industrial hemp requires the overturning of this exception. Yet assuming, arguendo, that the trial court abused its discretion in admitting lay testimony identifying substances as marijuana, there was expert testimony identifying much of the seized material as marijua na. While some of the material was not tested, defendant fails to dem onstrate that he was prejudiced by the admission of the lay testimony. Affirmed in part, no prejudicial error in part.

Concurrence

(Dillon, J.) I write separately to express my view that defen dant had standing to challenge the search and seizure of the package addressed to him to the extent the Fourth Amendment was implicat ed, notwithstanding that he sub sequently denied ownership of the package.

Concurrence

(Collins, J.) The package was addressed to defendant at his ad dress. Accordingly, defendant had a legitimate expectation of privacy in the package so, as the trial court correctly concluded, defendant has standing to challenge a search and seizure of that package.

State v. Teague (Lawyers Week ly No. 011-138-22, 56 pp.) (Val erie Zachary, J.) (Chris Dillon, J., concurring) (Allegra Collins, J., concurring in result) Appealed from Wake County Superior Court (Thomas Lock, J.) Kristin Uicker for the state; Warren Hynson for defendant. 2022-NCCOA-600

Criminal Practice

Misdemeanor Child Abuse – Risk of Injury – Parents’ Tug-of-War – Proba tion Pending Appeal

At a custody exchange, the defen dant-parents engaged in a tug-ofwar with their four-year-old child as the “rope.” Since a reasonable juror could have concluded that defen dants caused a substantial risk of physical injury to the child, the trial court correctly denied defendants’ motions to dismiss.

We find no error in defendants’ conviction of misdemeanor child abuse. We remand for resentencing as to defendant Adams.

After voir dire was closed, a juror asked about a question he had not clearly heard. After dismissing the rest of the jury, the trial court spoke with the juror and learned that he believed defendants should testify. The court explained the law to the juror, who said he could follow the law. The trial court gave the juror a night to think about the matter, and the juror again said he could fol low the law. The trial court did not abuse its discretion in denying de fendant’s motion to reopen voir dire.

The trial court sentenced both defendants to probation. As a con dition of probation, the trial court required defendants to attend coparenting classes. Defendants gave notice of appeal. In violation of G.S.

§ 15A-1451(a)(4), the trial court ordered defendants to attend the co-parenting classes while their ap peals were pending. Although defen dant Pena abandoned her appeal as to this issue, defendant Adams did not. We remand for resentencing as to defendant Adams.

State v. Adams (Lawyers Week ly No. 011-139-22, 24 pp.) (Donna Stroud, C.J.) Appealed from Yadkin County Superior Court (Michael Duncan, J.) Ryan Zellar and Debo rah Greene for the state; Michael Casterline and Gilda Rodriguez for defendants. 2022-NCCOA-596

Criminal Practice

Animal Cruelty – Indictment Amend ment – Horse’s Name

Since only one horse was seized from defendant’s paddock, and since the animal’s name is not an element of felony animal cruelty, the trial court did not err in allowing the state to strike the words “named Diamond” from the indictment. We find no error in defendant’s conviction for felony animal cruelty.

During closing arguments, the prosecutor read the jury the facts of State v. Coble, 163 N.C. App. 335, 593 S.E.2d 109 (2004), and told them that the facts should “sound familiar” because “that is the same things we have here for intent.” Counsel may not read the facts con tained in a published opinion to gether with the result to imply that the jury in his case should return a favorable verdict for his client.

Presuming, without deciding, the prosecutor’s reading from Coble and argument thereon in this case was improper, defendant cannot show the argument was so grossly improper, in light of the full con text and the evidence presented against defendant, that defendant’s right to a fair trial was prejudiced by the trial court’s failure to inter vene ex mero motu. Multiple wit nesses testified that the emaciated and infected horse and the paddock in which she was found belonged to defendant. Defendant testified that he visited the paddock every day, and he could not explain where his horse was now if the horse in the state’s possession was not his. De fendant was not deprived of a fair trial.

State v. Lawson (Lawyers Week ly No. 011-140-22, 14 pp.) (Toby Hampson, J.) Appealed from Dur ham County Superior Court (Jose phine Davis, J.) Brenda Menard for the state; Wyatt Orsbon for defen dant. 2022-NCCOA-598

Criminal Practice

DWI & Death by Vehicle – Discovery –Laboratory Records

Even though the trial court denied defendant’s discovery request for the City-County Bureau of Identifica tion laboratory’s audit, non-confor mity and corrective-action records, the state provided defendant with substantial laboratory information, which allowed defendant to under stand the testing procedure and to conduct an effective cross-examina tion of the state’s expert witness. The trial court did not abuse its discretion in denying defendant’s request for the audit, non-conformity and correctiveaction records.

We find no error in defendant’s

convictions for driving while impaired and felony death by vehicle.

State v. See (Lawyers Weekly No. 011-141-22, 15 pp.) (Valerie Zachary, J.) Appealed from Wake County Su perior Court (Rebecca Holt, J.) Jona than Evans for the state; Daniel Blau for defendant. 2022-NCCOA-599

Criminal Practice

Sentencing – First Step Act – Substan tive Reasonableness

Defendant sought a sentence re duction for his 2008 crack cocaine con victions under § 404 of the First Step Act of 2018, which makes retroactive the provisions of the Fair Sentencing Act of 2010 that reduced sentencing disparities between cocaine and crack cocaine offenses. Since decisions un der § 404 must be both procedurally and substantively reasonable, the district court should have explained its decision not to reduce defendant’s sentence.

We vacate the district court’s deci sion and remand for reconsideration.

Defendant was originally sen tenced to 27 years’ imprisonment for possessing with the intent to distrib ute more than 50 grams of cocaine base. Upon defendant’s § 404 motion, the district court assumed without deciding that defendant’s recalcu lated First Step Act sentencing range was 17.5 years to 21.8 years as com pared to his original sentencing range of 27 to 33.75 years. The district court denied defendant’s § 404 motion.

In United States v. Collington, 995 F.3d 347 (4th Cir. 2021), we held that § 404 proceedings trigger the typical procedural and substantive reason ableness requirements. We reject the government’s argument that Collin gton applies only when a sentence reduction is granted and not when a reduction is denied.

Here, the district court did not ex plicitly acknowledge that it was ef fectively retaining a variant sentence, let alone why it believed such a large upward variance was warranted.

Sentence reductions are not a mere side effect of the First Step Act, but one of its primary purposes. While Congress certainly gave district courts the discretion under § 404 not to impose reduced sentences, that dis cretion must be reviewed in light of the First Step Act’s remedial purpose. And that remedial context, if any thing, increases rather than decreas es the need to justify disagreement with the U.S. Sentencing Guidelines. Yet the district court relied on largely the same factual basis to deny defendant’s motion for a reduced sen tence as it did to impose its initial bottom-of-the-Guidelines sentence -- despite the fact that defendant’s amended Guidelines range decreased by five to ten years. In addition, the court placed too little weight on the remedial aims of the First Step Act. Therefore, although the district court’s order denying defendant’s § 404 motion was procedurally reason able, it was not substantively so.

Vacated and remanded.

United States v. Swain (Law yers Weekly No. 001-105-22, 11 pp.) (Stephanie Thacker, J.) No. 21-6167. Appealed from USDC at Greenville, N.C. (James Dever, J.) Eric Joseph Brignac and Alan DuBois for appel lant; Joshua Rogers, Norman Acker, Jennifer May-Parker and David Bragdon for appellee. 4th Cir.

Domestic Relations

Parent & Child – Custody Modification – Changed Circumstances – Time with Father

A consent order allowed the plaintiff-Father to spend more time with the parties’ two sons when they were ages four and five. Once the boys started spending more time with Father, they started using profanity, using hateful language towards their defendant- Mother, physically assaulting Mother, and misbehaving at school. Although the consent order itself was not a substantial change of circumstances, the boys’ drastic behavior change was, and the changed circumstances negatively affected the boys.

We affirm the trial court’s order modifying the parties’ custody arrangement.

The fact that the substantial changes in the children was apparently caused by more time with their Father does not mean the increase in custodial time in the prior order was the substantial change in circumstances. The trial court’s

findings regarding the children’s drastic change from well-adjusted to “dysfunctional behavior,” once they began spending more time with Father, were very detailed. The troubling behaviors include screaming and cursing, throwing objects, surrounding another boy and scaring him to the point he was on the ground crying while “Adam” and “Bryan” threatened him, and statements from the children about hating Mother, Mother hating one of the children, not having to listen to Mother, purposefully being mean to Mother, disowning Mother’s last name, calling Mother profane names, and stating a desire for Mother to die. These major and consequential changes in the children certainly demonstrate a change of circumstances.

In addition, a parent’s intensifying anger and hostility toward another parent can create a substantial change of circumstances. The trial court made several findings regarding Father’s expression of “his hostile feelings for” Mother in front of the children, noting it had “influenced the subject minor children and to some degree has contributed to the subject minor children’s dysfunctional behavior[.]” Accordingly,

the trial court did not err in determining there was a substantial change in circumstances since entry of the prior custody order.

The trial court’s order is a plain declaration of the ways the children’s welfare was negatively affected after Father’s visitation time increased.

To the extent Father is contending the children’s behavior does not impact their welfare, we find this implausible. A child’s behavior affects his welfare in many ways because his behavior affects his relationships with others and his opportunities and ability to learn and to make friends. A child who demonstrates the behaviors as described by the trial court’s findings at school will likely be unable to make friends and to learn to his full potential, and if the behaviors continue as the child gets older, he could even be suspended from school, at the very least.

The substantial change of the children’s behavior upon the modification of custody -- and the absence of any evidence of any other explanation for the change in behavior -- supports the trial court’s finding of a link between the increased time with Father and the negative chang-

es in the children.

Affirmed. Davidson v. Tuttle. (Lawyers Weekly No. 011-142-22, 19 pp.)

(Donna Stroud, C.J.) Appealed from Rutherford County District Court (Robert Martelle, J.) Patrick Bryan for plaintiff; Martin Jarrard and Jarald Willis for defendant. 2022-NCCOA-622

Workers’ Compensation

Death Benefits – Pickrell Presumption – Truck Driver’s Accident – Heart Attack

Shortly before the decedenttruck driver’s fatal accident, a witness described him as calm and “very conscious,” though he moved into her lane when coming out of a curve. Although decedent’s cause of death was a heart attack, defendants’ expert could not say whether the heart attack caused the accident or the accident caused the heart attack. Under these circumstances, defendant has not rebutted the

presumption that decedent’s death was compensable.

We affirm the Industrial Com mission’s award of death benefits.

Dr. Brent Hall conducted an au topsy and concluded, “The cause of death in this case was ischemic heart disease secondary to coronary heart disease.” He also noted “mul tiple fresh abrasions of the head, trunk, and extremities” but did not identify any “significant trauma.”

The Full Commission concluded that plaintiffs – decedent’s chil dren – were entitled to the Pickrell presumption— that, “where the circumstances bearing on workrelatedness are unknown and the death occurs within the course of employment, claimants should be able to rely on a presumption that death was work-related, and therefore compensable, whether the medical reason for death is known or unknown,” Pickrell v. Mo tor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988)—and that defen dants had not provided sufficient evidence to rebut the presumption. Alternatively, the Full Commis sion concluded that plaintiffs had shown that “Decedent was exposed to a special hazard” because “De cedent’s position in attempting to control a dump truck loaded with asphalt careening down the moun tainside[ ] subjected him to unusu ally stressful and extreme condi tions of his employment.”

The Pickrell court reasoned that a presumption of compensabil ity would be appropriate when an employee was found dead because, inter alia, “[e]mployers may be in a better position than the family of the decedent to offer evidence on the circumstances of the death. Their employees ordinarily are the last to see the decedent alive, and the first to discover the body.”

Defendants rely on this language to support their argument that the Pickrell presumption should not ap ply in the case at bar because dece dent’s “coworkers were not the last individuals to see him alive and were not the individuals to discover [his] body.” Defendants further ar gue that decedent “was not found dead, as there were several indi viduals who witnessed the events leading up to the motor vehicle ac cident.” As such, defendants main tain that the Commission erred by expanding the scope of the Pickrell presumption “beyond what [our Su preme Court] originally intended.”

However, careful review of Pick rell and subsequent case law shows that being “found dead” is not, in and of itself, a necessary condition for application of the presumption. As the Pickrell court said, the pre sumption applies in cases “where the circumstances bearing on workrelatedness are unknown and the death occurs within the course of employment, . . . whether the medi cal reason for death is known or unknown.” A decedent being “found dead” may naturally inform the ap plication of the Pickrell presump tion, but it is the “circumstances bearing on work-relatedness” that “are critical in determining wheth er a claimant is entitled to workers’ compensation benefits.”

Defendants contend that Dr. Hall’s autopsy “confirmed that de cedent died from a heart attack and that he was dead prior to the time of any impact.” It is true that the Pickrell presumption “is applicable

. . . only where there is no evidence that [the] decedent died other than by a compensable cause.” Gilbert v. Entenmann’s, Inc., 113 N.C. App. 619, 440 S.E.2d 115 (1994). Howev er, as defendants acknowledge, this court has previously distinguished Gilbert with respect to deaths at tributable to heart attacks.

An injury caused by a heart at tack may be compensable if the heart attack is due to an accident, such as when the heart attack is due to unusual or extraordinary exertion or extreme conditions. Wooten v. Newcon Transportation, Inc., 178 N.C. App. 698, 632 S.E.2d 525 (2006), disc. review denied, 361 N.C. 704, 655 S.E.2d 405 (2007).

The Commission found that “the exact cause of [decedent]’s heart at tack remains unknown.” Notably, the Commission expressly gave weight to the deposition testimony of defendants’ expert, Dr. Hall, in which he “admitted that he could not, to a reasonable degree of medi cal certainty, give an opinion as to ‘whether [decedent] had this acci dent because of a heart attack or whether he had a heart attack be cause of the circumstances of this accident.’”

The Commission also gives weight to the testimony of Special Agent Jennifer Trantham who saw decedent moments before his death, driving his vehicle while “very con scious,” but also not in complete control of his loaded dump truck, traveling at an unsafe speed down a curvy, steep mountain road.

The Commission’s findings of fact support its conclusion that “[t] he greater weight of the evidence indicates that the circumstances regarding the work-relatedness of Decedent’s heart attack are un known and that the death occurred as the result of an injury by acci dent sustained in the course and scope of Decedent’s employment.”

In that the circumstances of dece dent’s death bearing on work-relat edness are unknown and the death occurred within the course of em ployment, the Commission appro priately concluded that the Pickrell presumption applies in this case and therefore the burden shifted to defendants to rebut this presump tion and show that the heart attack did not arise out of the employment.

There is competent evidence in the record to support the inference that losing control of the truck pre cipitated decedent’s heart attack.

In his deposition, Dr. Hall testi fied that a “stressful event” such as losing control of a speeding truck “could predispose one to a heart at tack.” In addition, North Carolina Highway Patrol Trooper Justin Sanders, who investigated the acci dent, testified that it was “obvious that [decedent was] trying to con trol [the truck] and keep it in the road.”

Neither the record nor the bind ing findings of fact support defen dants’ argument that “[t]he only credible evidence in this case estab lishes that [decedent] was already deceased at the time of the actual collision” or that “the heart attack precipitated [decedent]’s loss of con trol of the vehicle.” Therefore, de fendants have failed to meet their burden of showing that decedent’s heart attack occurred prior to and caused his injury by accident.

Affirmed.

Frye v. Hamrock, LLC (Law yers Weekly No. 011-143-22, 17 pp.) (Valerie Zachary, J.) Appealed

from the Industrial Commission. Andrew J. Howell, for plaintiffsappellees. Orbock Ruark & Dillard, PC, by Barbara E. Ruark, for defen dants. 2022-NCCOA-623

Criminal Practice

Sex Offender Registry – Pennsylvania Conviction – Substantial Similarity –Age Differences

The Pennsylvania sexual offense law under which defendant was convicted, 18 Pa. Cons. Stat. Ann. § 3122.1, requires an offender to be four years than the victim; N.C.G.S. § 14-27.25(a) requires an offender to be six years older than the victim.

An out-of-state conviction must be only “substantially similar” – and not identical – to a reportable North Carolina offense in order for the of fender to be required to register as a sex offender when he moves to North Carolina. The Pennsylvania and North Carolina statutory rape statutes are substantially similar.

We affirm the trial court’s deter mination that defendant must regis ter as a sex offender.

Defendant was convicted of second-degree statutory sexual as sault under Pennsylvania. 18 Pa. Cons. Stat. Ann. § 3122.1. When he moved to North Carolina, the Dur ham County sheriff informed defen dant that he must register as a sex offender. Defendant sought judicial review.

The trial court concluded 18 Pa. Cons. Stat. Ann. § 3122.1 was sub stantially similar to N.C.G.S. § 1427.25(a), a reportable offense, and ordered defendant to register as a sex offender.

The sole issue on appeal is wheth er the trial court erred by determin ing the Pennsylvania offense of sec ond degree statutory sexual assault was substantially similar to the reportable North Carolina offense of statutory rape of a person who is 15 years of age or younger, thereby requiring defendant to register as a sex offender upon his change of resi dency to North Carolina.

The version of the Pennsylvania statute in effect at the time of de fendant’s conviction reads: “a per son commits a felony of the second degree when that person engages in sexual intercourse with a complain ant under the age of 16 years and that person is four or more years older than the complainant and the complainant and person are not married to each other.” 18 Pa. Cons. Stat. Ann. § 3122.1. The trial court determined this offense was substantially similar to the North Carolina offense of “[s]tatutory rape of person who is 15 years of age or younger.” § 14-27.25.

The 1995 version of the Pennsyl vania statute results in a second-de gree felony when a defendant (1) en gages in sexual intercourse (2) with a person under the age of 16, (3) the defendant is four or more years old er and (4) the person and defendant are not married to each other. 18 Pa. Cons. Stat. Ann. § 3122.1. The ele ments of the North Carolina offense of statutory rape requires proof the defendant (1) engaged in vaginal intercourse (2) with another person who is under the age of 16, (3) defen dant is at least six years older than the complainant and (4) defendant was not lawfully married to com plainant.

The North Carolina statute uses the term “vaginal intercourse,”

whereas the Pennsylvania stat ute uses the more expansive term “sexual intercourse.” Both statutes employ nearly identical language that the act of physical intercourse is conducted by the perpetrator with another person and that the other person is not the offender’s spouse by virtue of a lawful marriage. Ac cordingly, we conclude Pennsylva nia’s “sexual intercourse” element is substantially similar to North Caro lina’s “vaginal intercourse” element.

Pennsylvania requires a defen dant be at least four years older than complainant, and North Carolina requires the defendant be at least six years older. the age differential between victims and defendants required by the statutes sub judice varies by merely two years. Con trary to defendant’s argument, even though a defendant who is five years older than the victim could be prose cuted in Pennsylvania but not North Carolina, that difference alone is in sufficient to render the two statutes substantially dissimilar.

“Substantially similar,” by defini tion, requires something less than “identicalness.” Based on State v. Graham, 379 N.C. 75, 2021-NCSC125, a two-year disparity in the min imum age difference between vic tims and defendants is insufficient to persuade us the Pennsylvania statute and the North Carolina stat ute are not substantially similar.

The trial court did not err in concluding the two offenses speci fied in the Pennsylvania and North Carolina statutes are substantially similar despite a minor variation in minimum age difference between victim and defendant.

There is no ambiguity regarding which North Carolina offense to an alyze for substantial similarity. Our General Assembly and Supreme Court have provided more than suf ficient “aid” to reach the conclusion we do today. Accordingly, the rule of lenity is inapplicable.

Affirmed.

In re Petticciotti (Lawyers Weekly No. 011-144-22, 17 pp.) (Jeffery Car penter, J.) Appealed from Durham County Superior Court (Michael O’Foghludha, J.) Alan McInnes for the state; Kellie Mannette and Jay Ferguson for defendant. 2022-NC COA-624

Domestic Relations

Equitable Distribution – Valuation – Dental Practice – Arms-Length Transaction

The defendant-wife relied on ap praisals of a dental practice when she bought a share of the prac tice two years before the parties separated. Since the trial court reviewed the intervening circum stances and saw nothing to change the valuation of the practice, the court could base its valuation of defendant’s interest in the practice on the price she paid for it.

We affirm the trial court’s equi table distribution order.

There is no single best approach to valuing an interest in a profes sional partnership and various ap praisal methods can and have been used to value such interests. One acceptable valuation approach is to assess the market value of a stake in a closely-held business by examining the fair market val ue paid for that stake in a recent

arms-length transaction—in other words, the price that a willing buy er would pay to a willing seller for it.

The trial court used this ap proach. The court first examined the price defendant paid for her stake in the dental practice ap proximately two years before the date of separation and explained why this was an arms-length trans action that involved a valuation by outside experts. The court then ex amined the state of the business in the intervening time period, in cluding examination of the balance sheet, tax records, and evidence about the progress in transitioning the most experienced dentist out of full-time practice.

This last factor is particularly important because the largest re corded asset of the practice, by far, is the intangible asset known as goodwill. That goodwill is largely a reflection of the practice’s human capital and, specifically, the repu tation of Dr. Joel Hedgecoe, the most senior dentist at the practice, whose skills helped the business cultivate an “excellent reputation within the Fayetteville communi ty” over the years.

The court examined whether this goodwill figure may have changed and found no evidence that it had: “the asset statement continued to list goodwill of $1,018,800.00. The court finds this to be reasonable considering that Dr. Joel Hedge coe continued to work as previous ly, and wife continued to develop her own clientele. Persons look ing at the practice would not see any change that might impact the goodwill.”

The trial court’s methodol ogy—employing a market-value approach based on a recent armslength transaction and then exam ining whether any changes in the intervening period likely affected that market value in a significant way—is an acceptable, reliable method of valuation.

Given the goodwill calculation established in the earlier transac tion and the court’s determination that the calculation remains appli cable in the current valuation, the trial court did not need additional expert testimony.

The market-value approach em ployed by the trial court admit tedly is a rudimentary one. But it was sufficiently reliable to rea sonably approximate the value of defendant’s stake in the business, particularly in light of both par ties’ choice not to retain experts and provide additional evidence and testimony that would permit the court to engage in more sophis ticated valuation methodology.

Affirmed.

Logue v. Logue (Lawyers Week ly No. 011-145-22, 10 pp.) (Richard Dietz, J.) Appealed from Cumber land County District Court (Eliza beth Keever, J.) Charles Clanton and Edward Greene for plain tiff; Alicia Jurney for defendant. 2022-NCCOA-625

Civil Practice

the South Carolina defendant-lend er’s website that specifically tar geted North Carolina residents and claimed to have made “thousands” of loans to North Carolinians and be the “trusted name in [car] title loans” in North Carolina; (2) an af fidavit from an assistant manager and loan officer for defendant who said defendant mailed loan solici tation flyers into North Carolina to both current and former borrow ers and regularly engaged in phone conversations with North Carolina residents regarding defendant’s loans; and (3) an affidavit from the owner and managing member of the North Carolina publication “Steals & Deals” who – from February 2013 to May 2019 – ran a weekly adver tisement for defendant’s title loans to residents of North Carolina, and a manager of Associates Asset Re covery, LLC, a North Carolina busi ness, who recovered 442 motor vehi cles for defendant in North Carolina over the course of four years, the tri al court found that it had personal jurisdiction over defendant. For the reasons stated in Wall v. Automoney, Inc., ___ N.C. App. ___ (COA 21-419) (filed 19 July 2022), we conclude the trial court correctly determined de fendant’s substantial contacts with North Carolina are sufficient to con fer personal jurisdiction over defen dant in North Carolina.

We affirm the trial court’s denial of defendant’s motions to dismiss for lack of personal jurisdiction and based on the choice of law provision in the parties’ contract.

Even though the parties’ loan contract says it is to be governed by the law of South Carolina, the trial court found that plaintiff’s com plaint contained sufficient allega tions (including an interest rate of 179.014 percent) to support claims under North Carolina’s Consumer Finance Act, Unfair and Deceptive Trade Practices Act and usury laws. For the reasons set out in Wall, we agree.

Warley v. Automoney, Inc. (Law yers Weekly No. 012-315-22, 10 pp.) (Toby Hampson, J.) Appealed from Guilford County Superior Court (Stuart Albright, J.) James Fau cher and Jeffrey Peraldo for plain tiffs; Michael Montecalvo and Scott Anderson for defendant. 2022-NC COA-515

Domestic Relations

Parent & Child – Custody & Sup port – Civil Practice – Subject Matter Jurisdiction

In plaintiff’s action for custody of the parties’ children, defendant filed a motion in the cause for child support. G.S. § 50-13.5 sets out a list of ways in which a child sup port action may be brought (i.e., as a cross action in a divorce action), but that list does not include a mo tion in the cause in a custody ac tion. The brevity of the list in § 5013.5, as well as the statute’s use of the word “may”, show that the methods enumerated in the list are not meant to be exhaustive. An action brought under the pro visions of § 50-13.5 may be main tained in other ways, including allowing claims for child custody and child support of the same chil dren to be litigated together.

court of jurisdiction. Accordingly, a failure to use one of the proce dural methods designated in the statute is not jurisdictional.

We affirm the trial court’s deni al of plaintiff’s motion to dismiss for lack of subject matter jurisdic tion.

Kubica v. Morgan (Lawyers Weekly No. 012-316-22, 7 pp.) (Al legra Collins, J.) Appealed from Orange County District Court (Ha thaway Pendergrass, J.) Jonathan Melton for plaintiff; Jill Schnabel Jackson for defendant. 2022-NC COA-506

Insurance

Vacation Rental Property – Loss of Use – COVID-19 Restrictions

The parties’ policy provides “loss of use” coverage for plaintiff’s vacation rental property when a loss makes the property “not fit to live in” or when a civil authority prohibits use of the property as a result of direct damage to neigh boring premises. The complaint alleges that, in response to COV ID-19, Dare County closed roads, making plaintiff’s property inac cessible to vacationers. The com plain does not allege that the road closures rendered plaintiff’s prop erty not fit to live in or that Dare County prohibited plaintiff from using its property or did so as the result of any direct damage to any neighboring premises. Therefore, the allegations in the complaint fail to allege facts giving rise to any claim for coverage under the loss of use provisions of the policy. We affirm the trial court’s grant of the defendant-insurer’s motion to dismiss.

The policy also provides cov erage for “direct physical loss,” which term is not defined in the policy. Even if we were to accept plaintiff’s argument and broadly construe “direct physical loss” to include economic losses incurred as a result of limited access to the property, plaintiff’s complaint still fails to allege any direct physical loss to the dwelling itself as re quired by the plain and unambigu ous terms of the policy.

Four Roses, LLC v. First Protec tive Insurance Co. (Lawyers Week ly No. 012-317-22, 11 pp.) (Toby Hampson, J.) Appealed from Dare County Superior Court (Jerry Til lett, J.) Steven DeGeorge, Spen cer Wiles and Marshall Gilinsky for plaintiff; Jeffrey Kuykendal and J.D. Keister for defendant. 2022-NCCOA-501

Domestic Relations

Parent & Child – Neglect Adjudication – Injury to Sibling

dication of Jack as neglected.

In re J.L.L. (Lawyers Weekly No. 012-318-22, 18 pp.) (Darren Jackson, J.) Appealed from Davie County District Court (Jon Myers, J.) Jeffrey Miller or respondent; Holly Groce for petitioner; Alan Woodlief for guardian ad litem. 2022-NCCOA-502

Domestic Relations

Parent & Child – Termination of Pa rental Rights – Lack of Progress

The trial court found that re spondent-parents had not made substantial progress on their re spective court ordered case plans. Respondents had continued to re fuse random drug screening; con tinued to test positive for illegal and non-prescribed substances throughout the life of the case; had been inconsistent with visitation, often arriving late or cancelling all together; failed to cooperate with DSS and to allow DSS workers to visit their home; failed to sub stantially follow the recommenda tions of their mental health care providers; failed to demonstrate a benefit from domestic violence and domestic violence victims classes; failed to follow recommendations of the psychological/parenting evaluation by continuing to reside together with and continue toxic relationships with each other; and failed to follow recommendations of their Comprehensive Clinical Assessments. Based on these find ings, the trial court could conclude that grounds existed for termi nation of respondents’ parental rights.

We affirm the termination of re spondents’ parental rights.

In re J.W. (Lawyers Weekly No. 012-319-22, 6 pp.) (Fred Gore, J.) Appealed from McDowell County District Court (Robert Martelle, J.) Lee Gilliam and Jeffery Miller for respondents; Aaron Walker for petitioner; Allyson Shroyer for intervenors; Matthew Wunsche for guardian ad litem. 2022-NC COA-503

Domestic Relations

No one objected to the respon dent-mother’s presentation of letters purporting to be from the Dawn Center regarding domestic violence treatment; nevertheless, as finder of fact, the trial court could weigh the evidence – includ ing the letters’ discrepancies, lack of any signature, lack of verifica tion, incorrect email addresses, and inconsistent summaries – and determine that the letters were not credible.

Based on plaintiff’s presentations of (1) an authenticated page from

In any event, the statute does not indicate that a party’s fail ure to file an action by one of the means listed would divest the

Regardless of which parent punched “Jack’s” older brother “Robert,” Jack resided in a home where another juvenile was “sub jected to abuse or neglect by an adult who regularly lives in the home”, G.S. § 7B-101(15), and the parents’ safety plan – requiring no physical discipline with the ex ception of spanking with an open hand – was violated. In addition, all nine of the respondent-Moth er’s children were removed from her care due to improper supervi sion.

We affirm the trial court’s adju

We affirm the trial court’s per manency planning order elimi nating reunification and its un challenged order terminating respondent’s parental rights.

In re L.T. (Lawyers Weekly No. 012-320-22, 28 pp.) (April Wood, J.) Appealed from Union County District Court (William Helms, J.) Ashley McBride for petitioner; Matthew Wunsche for guardian ad litem; Edward Eldred for respon dent. 2022-NCCOA-504

Personal Jurisdiction – S.C. Lender –Auto Title Loan – Contract – Choice of Law

Parent & Child – Permanent Plan –Reunification Elimination

Civil Practice

Involuntary Commitment – Danger to Self & Others – Inadmissible Hearsay

Even though the trial court im properly relied on inadmissible hearsay in its involuntary com mitment order, there was suffi cient other evidence to support the court’s finding that respondent was a danger to herself.

We affirm the involuntary com mitment order.

The trial court appropriately al lowed witness Dr. Omar Rana to testify about respondent’s hospital admission – in which he was not involved – for the limited purpose of providing the basis for his expert opinion. However, the trial court’s written opinion then improperly included findings of fact based on the hospital intake records: “This current [hospitalization] was be cause CMPD brought her in af ter she told them she killed her parents, and when she was told they were alive she said “I know, I should have killed them.” At the [emergency department], Respon dent was agitated and aggressive, threatening staff including to kick a baby outside of a doctor’s stom ach.”

Nevertheless, disregarding the hearsay, there is still more than sufficient evidence remaining to support the trial court’s finding that respondent was a danger to herself.

Both Dr. Rana and Dr. David Litchford, who executed the 24hour facility examination for in voluntary commitment, diagnosed respondent with schizoaffective disorder, but respondent still does not believe she suffers from this mental illness. Dr. Rana testified, and respondent confirmed, that she refused her mood stabilizer. Dr. Rana confirmed that medica tion non-compliance had been an issue in the past, which led to “run-ins” with the police and hos pitalizations.

Dr. Rana described that re spondent’s delusions prohibited her from cooperating with her treatment team, and respondent explained that she believed “past treatment was a form of torture.” Further, respondent’s drug screen reflected cannabis use, and re spondent admitted to using can nabis, which she claimed was pre scribed, to “treat” her PTSD.

Therefore, the trial court’s fac tual and ultimate findings sup port the involuntary commitment order. To begin, the trial court’s supported underlying findings— including the continuous pattern of medication non-compliance, the failure to acknowledge her diagno sis, the refusal to access medical care, and the choice to self-medi cate with marijuana—support the ultimate finding that respondent is unable to exercise self-control or satisfy the need for personal and medical care pursuant to G.S. § 122C-3(11)(1)(I).

The trial court’s findings are further supported by evidence of respondent’s complex delusional system, including the belief that Dr. Rana was torturing her, and the record provides evidence that respondent believed her treat ment team was harming her. Ad ditionally, during her testimony,

respondent accused Dr. Rana of lying about her behavior in open court. This evidence reflected conduct that was “grossly irratio nal,” “grossly inappropriate to the situation,” and demonstrated “im paired insight and judgment,” cre ating a “prima facie inference that [she] is unable to care for herself.” § 122C-3(11)(1)(II).

Competent evidence that re spondent does not acknowledge her diagnosis and that her delu sions cause her to self-medicate and refuse appropriate medi cal treatment supports the trial court’s finding that “Resp[ondent] will cause future harm to self . . . without further treatment.” The trial court properly recognized a probability of future harm and did not err by finding that respondent was a danger to herself.

Since we affirm the finding that respondent was a danger to her self, we need not also determine that she was a danger to others.

The fact that neither the state nor the hospital was represented by counsel did not result in a vio lation of respondent’s constitu tional rights. There is no consti tutional right to opposing counsel. Moreover, a judge may preside at an involuntary commitment hear ing and question witnesses at the same proceeding without violating a respondent’s due process rights.

Nothing in the transcript sug gests that the trial judge’s ques tioning of Dr. Rana prejudiced ei ther party. The trial court did not violate respondent’s right to an impartial tribunal.

Affirmed.

In re T.S. (Lawyers Weekly No. 012-321-22, 26 pp.) (Darren Jack son, J.) Appealed from Mecklen burg County District Court (Faith Fickling-Alvarez, J.) John Tillery for the state; Sterling Rozear for respondent. 2022-NCCOA-505

Civil Practice

Personal Jurisdiction – Predatory Lending – S.C. Lender – N.C. Negotia tions

This court has yet to address whether advertisements in a local publication can give rise to person al jurisdiction. Certainly, placing an advertisement in a publication which primarily circulates in a single state only is sufficient for a defendant to reasonably anticipate being haled into that state’s court.

We affirm the trial court’s de nial of defendant’s motions to dis miss under N.C. R. Civ. P. 12(b)(2) and (6).

The South Carolina defendant makes loans secured by auto titles. Defendant’s website acknowledges that such loans are prohibited in North Carolina; however, a page on the website specifically targets North Carolina residents by entic ing them to go to South Carolina to obtain a loan from one of defen dants’ offices just across the state line.

Plaintiff successfully paid off her first loan from defendant, which bore interest at a rate of 158.041 percent. However, she fell behind on her second loan, which had an interest rate of 179.039 percent, and defendant hired an agent to repossess plaintiff’s car in North Carolina.

Plaintiff filed suit, alleging that defendant had violated North Car

olina’s Consumer Finance Act, De ceptive and Unfair Trade Practices Act, and usury laws.

Personal Jurisdiction

Defendant contacted North Carolina residents through the following methods: 1) online ad vertisements; 2) advertisements in Steals & Deals, a local North Carolina publication; 3) telephone calls between defendant and North Carolina residents while the resi dents were in North Carolina; 4) perfection of its security interest with North Carolina Department of Motor Vehicles; 5) offers of re ferral bonuses to North Carolina residents for referring new North Carolina customers; 6) receipt of loan payments from North Caro lina residents within North Caro lina; 7) repossession of vehicles lo cated within North Carolina; and 8) written solicitation letters sent to North Carolina residents.

At least one of defendant’s in ternet ads directly targeted North Carolina: “Are you a North Caro lina resident? We’ve got you cov ered! You are just a short drive away from getting the cash you need! Do you live in the Charlotte area? What about Fayetteville or Wilmington? How about Hender sonville, Lumberton, Monroe, or Rockingham? There is a [sic] [Au toMoney] Title Loans right across the border with a professional and courteous staff ready to help you get the cash you need. Is it worth the drive? Our thousands of North Carolina customers would certain ly say it is.”

This advertisement is clearly a manifested intent to engage in business within North Carolina by recruiting our residents and pro viding them with information on how to acquire loans. Defendant’s high interest car title loans would be void as a matter of public poli cy if offered by a company within North Carolina. Because defen dant attempts to circumvent North Carolina’s predatory lending laws by operating from South Carolina while directly marketing to North Carolina residents, defendant’s in ternet advertisements satisfy the test for personal jurisdiction over internet communications stated in Havey v. Valentine , 172 N.C. App. 812, 616 S.E.2d 642 (2005).

Moreover, defendant ran an advertisement in a North Caro lina publication for six consecutive years. Although running an adver tisement in a national publication is not sufficient, standing alone, to establish personal jurisdic tion, this court has yet to address whether advertisements in a local publication can give rise to person al jurisdiction. Certainly, placing an advertisement in a publication which primarily circulates in a single state only is sufficient for a defendant to reasonably anticipate being haled into that state’s court.

The sum and quality of defen dant’s contacts with this state, paired with defendant’s obvious intent to recruit North Carolina clients, is sufficient to establish personal jurisdiction.

Consumer Finance Act

The parties’ contract contained a South Carolina choice of law pro vision.

However, G.S. § 53-190(b) pro vides, “If any lender . . . who makes loan contracts outside this State in the amount of . . . fifteen

thousand dollars ($15,000) or less, comes into this State to solicit or otherwise conduct activities in re gard to such loan contracts, then such lender shall be subject to the requirements of this Article[,]” which would prohibit defendant’s high interest loans.

Based on our General Assem bly’s legislation prohibiting preda tory lending; its swift enactment of legislation to overturn Skinner v. Preferred Credit , 361 N.C. 114, 638 S.E.2d 203 (2006) (“North Car olina courts lack personal jurisdic tion over a nonresident trust that has no connections to this state other than holding [high-interest] mortgage loans secured by deeds of trust on North Carolina prop erty.”); and our case law governing predatory lending practices within the State of North Carolina, we conclude that the issue of preda tory lending is clearly a question of fundamental public policy for this state.

Where defendant negotiated the terms of the loan agreements with a North Carolina resident while she was in North Carolina, defendant violated § 53-190 and, in turn, violated a fundamental public policy of North Carolina. As such, the choice of law provision within defendant’s loan agreement is void as a matter of public policy.

Affirmed.

Smith v. Automoney, Inc. (Law yers Weekly No. 012-322-22, 25 pp.) (April Wood, J.) Appealed from Hoke County Superior Court (Michael Stone, J.) Jeffrey Peraldo and James Faucher for plaintiff; Michael Montecalvo and Scott Anderson for defendant. 2022-NC COA-509

Corporate

Non-Profit – Contract – Bylaws – Fees – Board’s Amendment

The board of directors of defendant Hound Ears Club, Inc., a non-profit corporation, decided to assess fees against members who do not own real property in the gated subdivi sion that the club operates. Even if, as plaintiffs contend, the board’s decision in effect created a new non-property-owning equity mem bership class of the club, the club’s bylaws expressly give the board the authority to create new member ship classes.

The court grants defendant’s mo tion for judgment on the pleadings.

Although the bylaws require membership approval to raise the cap on the number of members, the board’s action did not raise the membership cap.

The bylaws unambiguously em power the board to assess fees in an amount it determines against each membership class. This authority is unrestricted and does not limit the assessment power to the original membership classes or to one class in particular.

The classification of members into various classes of membership does not violate the North Caro lina Nonprofit Corporation Act be cause the bylaws authorize multiple classes.

Motion granted.

Brenner v. Hound Ears Club, Inc. (Lawyers Weekly No. 020-047-22, 12 pp.) (Louis Bledsoe, C.J.) Nathan Miller for plaintiffs; Morgan Rogers and Alexandra Davidson for defen dant. 2022 NCBC 47