North Carolina Lawyers Weekly October 24, 2022

SOMETHING IN THE WATER

Former state official returns to law firm

Former Virginia Secretary of Commerce and Trade Brian Ball is returning to his former law firm, Williams Mullen, according to a news release from the firm.

Ball rejoined Williams Mullen on Oct. 10 as of counsel in its corporate section, supporting and serving the firm’s Economic Development Team and aiding clients with business expansion needs. He’ll be based in the firm’s Richmond office.

Court of Appeals: State must face public trust breach suit

■ BY CORREY E. STEPHENSON BridgeTower Media Newswires

Sovereign immunity does not prohibit an environmental organization from asserting a claim of breach of trust against the state under the public trust doctrine, a panel of the North Carolina Court of Appeals has ruled, affirming the denial of the state’s motion to dismiss the action.

In November 2020, Coastal Conservation Association (CCA) and citizens and residents of North Carolina filed a complaint against the state, alleging breach of trust under the public trust doctrine as well as direct viola-

tions of Article I, Section 38 and Article XIV, Section 5 of the state Constitution.

Specifically, the plaintiffs alleged that the “doctrine imposes a fiduciary duty on the state to manage and regulate the harvest of coastal finfish and shellfish in a way that protects the right of current and future generations of the public to use public waters to fish.

As a result, the state may not allow the harvest of finfish or shellfish in public waters in quantities or by methods that cause unnecessary waste or impair the sustainability of fish stocks, which in turn threaten the right of current and future generations of the

public to use such public waters to fish.”

According to the lawsuit, the state has breached this duty by permitting for-profit harvesting of finfish or shellfish in quantities or through methods that cause overexploitation or undue waste to coastal fisheries resources.

The plaintiffs requested that the court declare the state breached its obligation under the public trust doctrine and enjoin the state from committing further breaches.

In response, the state filed a motion to dismiss arguing that the

Before serving as commerce secretary under Gov. Ralph Northam, Ball was with Williams Mullen for nearly 30 years as a partner, general counsel and a member of the firm’s board of directors.

“We are thrilled to have Brian return to us in a new capacity,” Williams Mullen Chairman, President and CEO Calvin W. “Woody” Fowler Jr. said in a statement. “His knowledge of our firm and its resources, combined with his insight in working effectively with the governor’s office and cabinet secretaries, make him an incredibly valuable asset to clients looking to locate and grow their businesses in the commonwealth and beyond.”

As Virginia’s commerce and trade secretary from 2018 to 2022, Ball was instrumental in some of the state’s biggest deals, includ-

Raleigh-based attorney receives lifetime service award

Nexsen Pruet economic development attorney Ernest C. Pearson was honored with the Lifetime Service Award from the North Carolina Economic Developers Association (NCEDA) at its annual fall conference in Asheville on Oct. 4, according to a news release from the fi rm. Pearson is a member in Nexsen Pruet’s Raleigh office and has unparalleled experience in economic development matters. As Assistant Secretary for Economic Development during one of North Carolina’s most successful periods of economic growth, he worked with scores of economic development projects and has counseled more than one hundred companies in site selection and incentive negotiation projects.

In addition to his role as general counsel to the NCEDA Foundation, Pearson crafts creative and successful solutions for companies expanding existing or locating new facilities. This experience benefits local and regional economic development efforts by leading them to cost effective approaches to economic development successes.

“Ernie’s work in North Carolina economic development spans decades of successful leadership and innovative deal-making. His impact on our state’s growth is profound. He is a wonder-

ful partner and a great friend to me,” said Chris Kouri, Charlotte Managing Partner at Nexsen Pruet.

Best Lawyers in America listed Pearson as one of only 28 lawyers in the country in the category of Economic Development in 2013, and he has been listed in this category every year since. He earned his J.D. from UNC Chapel Hill and his B.A. from NC State University.

Founded in 1945, Nexsen Pruet serves clients from nine offices across the Southeast. With more than 200 lawyers and professionals, the firm provides regional, full-service capabilities with international strengths.

Staff report

Attorney suspended for increasing fees, failing to pay

Woman settles for $1.5M after18-wheeler crash

Best practices to resuce risk of whistleblower claims

SETTLEMENTS

A lawsuit claims North Carolina breached its duty regarding harvesting of finfish and shellfish in public waters. DepositPhotos

Ernie Pearson

Brian Ball

Firm recognized for DEI

For the second year in a row, Rob inson Bradshaw earned the Compass Award designation from the Lead ership Council on Legal Diversity for demonstrating a commitment to building a more diverse firm an a more inclusive legal profession, according to a news release from the firm.

“We strongly believe in the value of a diverse workforce and an equitable, inclusive workplace,” said Manag ing Partner Allen Robertson. “We are committed to building and support ing that environment within our firm, in the legal profession and out in our community.”

The Compass Award recognizes that Managing Partner Allen Robert son and Robinson Bradshaw fulfilled the following requirements within one calendar year: Robertson submitted a Leader’s Pledge stating his personal commitment to and vision for DE&I at

the firm; Robertson, along with other firm members, attended the LCLD annual meeting; and the firm partici pated in LCLD’s Fellows, Pathfinders and 1L Scholars programs. The Fel lows and Pathfinders programs pro vide diverse, high-potential attorneys in the middle and beginning of their careers with opportunities for devel opment, networking and leadership training. As part of the 1L Scholars program, the firm welcomed two di verse first-year law student scholars to its summer associate class.

LCLD is one of the nation’s leading organizations promoting diversity. It consists of more than 430 corporate chief legal officers and law firm man aging partners — the leadership of the profession — who have dedicated themselves to creating a truly diverse U.S. legal profession.

Staff report

BAR DISCIPLINE ROUNDUP

Attorney: Brooke M. Crump Location: Wake County

Bar membership: Since 2017

Disciplinary action: Suspension

Background: After having a grievance filed against her for increasing her fee without informing her client and failing to disburse entrusted funds payable to various third parties, the defendant was found guilty of non-compliance with the grievance process.

Because the allegations implicated the defendants handling of entrusted funds and demonstrated that at minimum, the defendant had failed

to promptly disburse client, funds as directed, the Chair of the Grievance Committee issued a Subpoena for Cause Audit for Respondent’s trust accounts on 12 July 2022.

Respondent did not submit all documents and information responsive to the Letter of Notice and Subpoena by the close of business on 19 September 2022.

There is no length of the defendant’s suspension as it’s for non-compliance with the grievance process. If the defendant comes into compliance by providing the grievance information, then she can petition for reinstatement.

Baker Donelson expands group with hire

The law firm of Baker Donelson has expanded its Corporate Re structuring & Bankruptcy Group with the addition of Jill Walters as a shareholder in the firm’s Ra leigh/Research Triangle, North Carolina, office. Walters offers clients more than 15 years of ver satile experience in representing and counseling clients in corporate insolvency, distressed lending, re structuring and bankruptcy, and complex Chapter 11 cases.

“I am thrilled to welcome Jill to the Firm. She is an excellent addi tion to our team and further deep ens our bankruptcy and restruc

turing bench,” said Eric L. Pruitt, leader of Baker Donelson’s Corpo rate Restructur ing & Bankruptcy Group. “Jill joins a dedicated team that has exten sive litigation and transactional ex perience, and is advising clients in highly complex financial restruc turing and bankruptcy cases.”

Walters’ practice spans mul tiple sectors, including health care, banking and finance, real

estate, agriculture, education, transportation, hospitality, retail, construction, and manufacturing.

Her clients include secured and unsecured creditors and creditors’ committees in reorganizations and liquidations nationwide, as well as purchasers and sellers of debt and assets in foreclosure sales, Article 9 sales, and Chapter 11 363 sales.

She also has extensive experience in bankruptcy litigation centered on the defense of preference and fraudulent transfer actions, as well as dischargeability contests, including significant student loan litigation activity.

Walters holds leadership posi tions in the International Insol vency and Restructuring Con federation, National Democratic Institute, and North Carolina Bar Association. She is also active in the Raleigh community, serving on the board of directors of Note in the Pocket and volunteering for Legal Aid of North Carolina and Haven House Services.

Walters received her law degree from the Michigan State Univer sity College of Law and her under graduate degree from Lake Forest College

Firm adds 4 attorneys to new Charleston office

Baker Donelson has added four attorneys to its recently opened Charleston office.

Sandra Miller joins as of coun sel in the Health Group; Will Middleton as an associate in the Corporate Group; and Alexandra Breazeale and Mya Green as as sociates in the Business Litigation Group, according to a news release from the firm.

Miller was previously at Wom ble Bond Dickinson, and Middle ton, Breazeale and Green join from Parker Poe.

“Sandra, Will, Alex, and Mya are great additions to the grow ing Baker Donelson team in South Carolina. They each focus on dif ferent areas of practice and are all talented lawyers, committed to serving client interests across South Carolina,” said Ashley Coo per, managing shareholder of the Firm’s Charleston office. “Their combined talent and various ar eas of focus will bring immediate value to the Charleston office, our clients, and the Firm as a whole. We are honored they have chosen to join us.”

With more than 30 years of ex perience in health law and health care litigation, Miller represents hospitals, home health agencies, long-term care facilities, and other related health care providers. Her experience stretches across the health care spectrum. She repre

sents health care providers in a va riety of issues, in cluding federal and state fraud and abuse investiga tions, regulatory compliance, and public and private reimbursement is sues. Her extensive litigation and trial experience includes qui tam litiga tion and Medicare and Medicaid fraud and abuse investigations. Miller also advises clients on pa tient rights and research issues. She has been a South Carolinacertified mediator and has experi ence as an arbitrator, including currently serving on the AHLA ar bitration panel.

“When the opportunity arose for me, along with my entire South Carolina health care team, to join a firm with a premier, nationally known health care practice, it was clear it was the right move for all of us,” said Miller. “We look forward to offering our clients the tremen dous capabilities that come with being part of a national health law practice with more than 200 attor neys focused on serving the health care industry.”

Health law attorneys Alissa Fleming and Catherine F. Wrenn, both previously with Womble Bond Dickinson, were among the four

Eric L. Pruitt

shareholders who joined Baker Do nelson in September to launch the Charleston office.

Middleton joins Baker Donel son’s Energy practice, where he will advise energy clients before state commissions in matters re lating to interconnection service, the Public Utility Regulatory Poli cies Act (PURPA), demand-side management, and energy efficien cy matters. He also regularly as sists clients on a range of commer cial transactions for both regulated and non-regulated companies.

Breazeale is a complex-case liti gator who handles, investigates, and litigates False Claims Act and qui tam cases, as well as other business fraud matters. In partic

ular, Breazeale has handled such investigations and litigation in the health care and energy sectors. She also litigates various design and construction cases, environmental claims, business and commercial disputes, and business fraud cases.

Green will focus her practice on commercial and government/regu latory litigation, including govern ment investigations and audits. Her experience includes represent ing clients in civil trial and admin istrative hearings. Green also has extensive experience in alternative dispute resolution.

With the addition of these four attorneys, Baker Donelson has doubled the size of its new Charles ton office in less than a month. The office was launched in September with four new shareholders: Coo per, an energy attorney, and Jen nifer K. Dunlap, an employment attorney, both previously with Parker Poe, as well as Fleming and Wrenn from Womble Bond Dickin son.

Charleston is Baker Donelson’s second new office in the Caroli nas in less than a year. In October 2021, the Firm added a team of health care attorneys in the Ra leigh/Research Triangle, its first North Carolina location. Baker Do nelson has maintained a location in Columbia, South Carolina, since 2016.

Staff report

Staff report

Jill Walters

Sandra Miller

Jill joins a dedicated team that has extensive litigation and transactional experience.

Woman settles for $1.5M after 18-wheeler crash

■ BY HEATH HAMACHER

A woman injured in a multiple-vehicle crash involving an 18-wheeler has settled her claims for $1.5 million, her attorneys report.

The plaintiff, a 43-year-old woman, was repre sented by Robert Zaytoun, John Taylor, and Mat thew Ballew of Zaytoun Law and Leonard Jerni gan of the Jernigan Law Firm, both in Raleigh. The attorneys wrote in an emailed statement to Lawyers Weekly that their client was traveling west on Highway 147 when traffic came to a stop and she “saw the terrifying sight of an 18-wheel truck barreling down on her and the other cars.”

The truck rear-ended a vehicle behind the plaintiff’s, pushing it into the plaintiff’s vehicle and causing the plaintiff’s vehicle to strike an other vehicle, causing a chain reaction.

The impact significantly damaged five vehi cles. The plaintiff was treated at the emergency room for leg injuries and released the same day.

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

The woman soon began to experience neck pain and was prescribed physical therapy. The pain continued, however, and MRIs revealed two herniated discs. Her attorneys wrote that de spite spinal injections and other treatments in the five years since the wreck, the woman contin ues to suffer from neck pain. The injuries have caused significant lost wages and earning capac

ity to the former physical therapy assistant, who took a lowerpaying job at a local church.

The woman’s attorneys said that she also has post-traumatic stress disorder, evidenced by ex pert psychiatrist testimony and the fact that her family medicine physician treats her for the con dition.

The attorneys said that the defendant trucking company and driver contested the permanency and seriousness of the woman’s injuries, offering experts in spine medicine, economic loss, and vo cational rehabilitation who were prepared to argue that the woman could earn the same wages or more with other jobs and that she was capable of more physical activities than her evidence suggested.

Plaintiff’s attorneys called the injuries “ongo ing and permanent.”

Taylor, who served as lead counsel, said that the case was challenging because the woman has no scarring, does not walk with a limp, and suf

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.5 million

Injuries alleged: Herniated discs in neck, posttraumatic stress disorder, lost wages and earn ing capacity

Case name: Withheld

Court: Wake County Circuit Court

Date of settlement: Aug. 25, 2022

Insurance carrier: Withheld

Attorneys for plaintiff: Robert Zaytoun, John Taylor, and Matthew Ballew of Zaytoun Law in Raleigh and Leonard Jernigan Jr. of the Jernigan Law Firm in Raleigh

Attorney(s) for defendant: Withheld

fers sporadic rather than constant pain.

“We felt, however, that putting on the testi mony of her treating physicians was powerful, as compared to the hired experts testifying for the defense,” Taylor said. “We also felt it was compel ling that our client had willingly undergone mul tiple spinal steroid injections to try to mitigate her pain. We were prepared to show how these injections are risky given the long needle that must pass dangerously close to spinal nerves to enter the vertebral disc space.”

Chief justice completes historic tour

Chief Justice Paul Newby and his wife Macon completed the historic 100-county courthouse tour with fi nal stops in Chowan and Dare coun ties last week with Dare being the 100th county, according to a news release from the North Carolina Ju dicial Branch.

Newby greeted judges and court house staff at each of the courthous es to thank them for their hard work and dedication in keeping courts operational and accessible to North Carolinians. Judges and courthouse staff are essential in fulfilling the Ju dicial Branch’s constitutional “open courts” mandate to provide equal justice to all in a timely manner.

“I embarked on this tour to ex press thanks to local judges, clerks, and courthouse personnel and to gain a better understanding of the unique challenges faced by each courthouse,” Newby said in the re lease. “This tour has been instru mental in learning how we can best support local judicial leadership to further our mission and to meet our

Huff Powell Bailey is interviewing candidates for two associate positions in its Raleigh of ce. The ideal candidates will have three or more years of litigation experience. Huff Powell Bailey is a litigation rm handling the defense of complex cases with signi cant damages exposure, including medical malpractice, long term care, products liability, and general liability claims and cases. Huff Powell Bailey is known for its commitment to trial work and the professional development of its lawyers to take dif cult cases to trial in dif cult venues.

Please forward resumes and/or inquiries to apurcell@huffpowellbailey.com

The Law Office Of JENNIFER JERZAK BLACKMAN

Constitutional mandate to deliver justice without favor, denial, or de lay, especially in the wake of the CO VID-19 pandemic.”

The tour began in May 2021 with a visit to Cherokee County. Newby is the first sitting chief justice of the Supreme Court of North Carolina to

visit all of North Carolina’s court houses, completing his tour from Murphy to Manteo.

Staff report

Robert Zaytoun

John Taylor

Matthew Ballew

Chief Justice Paul Newby recently completed a tour of courthouses in 100 counties across North Carolina, becoming the first sit ting chief justice of the North Carolina Supreme Court to visit all of the state’s courthouses. (Photo/Provided)

Gregory Packaging nets $21.2M after verdict

■ BY HAVILAND STEWART hstewart@nclawyersweekly.com

Foodbuy, LLC, sued Gregory Packaging Inc, for $1 million; instead Gregory Packaging was awarded $21.2 million.

Gregory Packaging is a 100-yearold juice manufacturer that has worked with Foodbuy – the largest food service company in the world – since 2011. Foodbuy is a group purchasing orga nization based in the UK, with their North American headquarters in Charlotte.

According to Gregory Packag ing’s counsel, Russ Ferguson of Wom ble Bond Dickinson, after years of being in contract with one another Greg ory Packaging began suspecting that they were being overcharged by Foodbuy and therefore didn’t pay their latest invoice.

“At the end of Foodbuy’s relation ship Gregory Packaging started to see that something was going on,” Ferguson said. “There were cer tain indications that they were be ing overcharged by Foodbuy, so there was about a million dollars of invoices that Gregory packaging didn’t pay. And [Gregory Packaging was] working that out with Foodbuy when Foodbuy sued them to get the million dollars.”

Gregory Packaging counter claimed and ended up winning $9.2 million from Foodbuy for their breach of contract.

Foodbuy appealed that decision and as a result Gregory packaging cross appealed.

After re-examination, the judge on this case, Judge Whitney, or dered another $14 million be paid to

Is this a verdict or a settlement? Verdict

Type of case: Federal Breach of Contract and Unfair and Deceptive Trade Practices Act

Amount: $23,380,947.42

Injuries alleged: Beach of contract; Unfair and Deceptive Trade Practices

Case name: Foodbuy, LLC v. Gregory Packaging, Inc. Court: Western District of North Carolina

Case No.: Case No. 3:16-CV-00809

Judge: The Honorable Frank D. Whitney Date of verdict or settlement: August 4, 2022

Demand [for verdicts]: N/A

Highest offer [for verdicts]: N/A

Bench or jury trial? [for verdicts]: Bench Trial

Special damages [if applicable]: N/A

Most helpful experts [if applicable]: N/A

Insurance carrier [if applicable]: N/A

Attorney(s) for plaintiff (Foodbuy, Counterclaim Defendant) and their firm(s): Mark Nebrig, Fielding Huseth – Moore & Van Allen

Attorney(s) for defendant (Gregory Packaging, Counterclaim Plaintiff) and their firm(s): Russ Ferguson, Sam Hartzell – Womble Bond Dickinson

Was the opposing represented by counsel? Yes

Were liability and/or damages contested? Yes Has the judgment been successfully collected? Partially

Gregory Packaging after discover ing that Foodbuy was guilty of was more than just a breach of contract, but also unfair and deceptive trade practices.

Unfair and deceptive trade prac tices regarding this case can be seen through Foodbuy concealing their breach of contract and systemically overcharging Gregory Packaging.

During this examination it was also found that these unfair and deceptive trade practices done by Foodbuy were not unique to Gregory Packaging, and ultimately resulted in their loss of $21.2 million.

According to Ferguson, this ruling will add some much-needed clarity

to the policies regarding unfair and deceptive trade practices.

“The law around the Unfair and Deceptive Trade Practices Act has been really muddled for a long time,” Ferguson said. “And that’s particu larly true when there’s a contract between parties, because there are all sorts of laws around when you can apply the Unfair and Deceptive Trade Practices Act and when you cannot. I think that [Judge] Whit ney’s order really provided some much-needed clarity for future liti gants on the Unfair and Deceptive Trade Practices Act.”

Foodbuy’s counsel declined to comment on this verdict.

Court rules who will hear education voucher suit

RALEIGH, N.C. (AP) — A legal challenge to North Carolina’s tax payer-funded scholarship program for K-12 children to attend private schools — focused on claims of bias based on religion and sexual ity — must be heard by three trial judges, the state Court of Appeals ruled last week.

The majority on an appeals court panel reversed last year’s decision by Wake County Superior Court Judge Bryan Collins, who ruled the lawsuit filed by several North Carolina parents in 2020 should remain before a single judge.

Republican legislators defend ing the “Opportunity Scholarship Program” created in 2013 ap pealed Collins’ decision, saying three Superior Court judges are required to hear the case because the litigation was seeking to throw out the program in its entirety on grounds it violates the state con stitution.

The plaintiffs in the lawsuit have said the scholarships are lawful in some formats but uncon stitutional as carried out in each of their individual circumstances, so only a single judge should pre side. For example, some plaintiffs are in same-sex marriages who say they’re being discriminated against because some private reli

gious schools benefiting from stu dent grants oppose LGBTQ rights or expel openly-gay students.

The scholarships are considered one of the chief education policy ac complishments for Republicans at the General Assembly since they took control of the legislature over a decade ago. Nearly 23,000 stu dents in low- and middle-income families received awards during the last school year, and over $63 million in grants are being dis bursed this school year, according to program data.

Program opponents include Democratic Gov. Roy Cooper and the North Carolina Association of Educators, which describes the awards as vouchers.

The General Assembly agreed in the 2000s to start using panels of three trial judges to hear redis tricting challenges so as to prevent plaintiffs from “judge shopping” by filing cases in certain counties. Their use was expanded in 2014 to cover any lawsuit that sought to declare a state law “facially” unconstitutional, or in every situ ation. The chief justice, who is cur rently Republican Paul Newby, appoints the three judges in these matters, each of them from a dif ferent region.

Writing the majority decision,

Court of Appeals Judge April Wood said it’s plain that the lawsuit seeks to strike down the program completely and prevent students from being awarded grants. No evidence has been presented that the plaintiffs applied for scholar ships or were unconstitutionally denied enrollment to the program, she added.

The “plaintiffs have been unable to identify any conceivable remedy for their claims that would not re quire either rewriting the statute or imposing sweeping court super vision on scholarship approvals by regulators,” Wood wrote. “These remedies are unmistakable mark ers of a facial challenge.”

Court of Appeals Judge Rich ard Dietz sided with Wood. In a dissenting opinion, Judge Toby Hampson wrote that it was prema ture for the appeals court to decide the breadth of the challenge in the lawsuit, and thus who should hear the case at trial.

Given the split 2-1 ruling by the Court of Appeals, the state Su preme Court would be obligated to review last week’s decision if the plaintiffs appeal. In 2015, the justices ruled 4-3 that people who challenged the program’s legality failed to prove it violated the con stitution.

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Editor’s note: Due to inaccuracies when the Gregory Packaging verdict story originally ran, it is appearing again in its entirety in this issue of North Carolina Lawyers Weekly.

Russ Ferguson

Best practices to minimize the risk of whistleblower claims

■ BY DAVID DUBBERLY Nexsen Pruet

On Sept. 1, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a news release claiming that a finan cial services employer “violated the whistleblower protection provisions of the Sarbanes-Oxley Act” (SOX) by ter minating the employment of a man ager who “alleged fi nancial misconduct.”

This procedural backdrop illus trates that whistleblower cases, even those without merit, can go on for an extended period of time and be costly to defend.

Elements of whistleblower actions

Whistleblower provisions prohibit employers from taking “adverse ac tion” against employees because they engaged in “protected activity.”

In the OSH Act context, “protected activity” includes:

The “contributing factor” causation test used in SOX cases is easier for employees to meet than the “but for” test used for alleged violations of the OSH Act.

Employer defenses, remedies

could be reversed.

Best practices

OSHA’s Sept. 1 news release serves as a reminder that employers should be proactive in taking steps to try to minimize the risk of whistleblower claims. Best practices for employers include:

• Adopting safety and corporate eth ics policies that require employees to report alleged financial misconduct;

Making a good faith complaint about safety to OSHA, another agen cy, or management;

• Participating in an investigation of a safety complaint; and

David Dubberly

According to OSHA, it had “or dered” the employer “to pay the employee more than $22 mil lion” as a result of the “violation.” How ever, the news re lease is misleading because OSHA does not have authority to order the pay ment of a proposed award in a whis tleblower case.

OSHA’s investigative role

OSHA has authority to investigate whistleblower claims under the Occu pational Safety and Health Act (OSH Act), SOX, and 20 other federal laws that have whistleblower protection provisions (including environmental laws and laws regulating the aviation, railroad, trucking, healthcare, and nu clear power industries).

But OSHA’s findings are not nec essarily final as they can be reviewed in a de novo hearing by an adminis trative law judge, whose decision can then also be appealed to the Labor Department’s Administrative Review Board (ARB). ARB decisions can be further reviewed in federal court.

Refusing to perform a dangerous assigned task under certain circum stances.

To set out a prima facie case in a workplace safety whistleblower case, an employee must show that:

• He or she engaged in protected ac tivity;

The employer took adverse action against the employee; and

“But for” the protected activity, the employer would not have taken the adverse action.

In the SOX context, “protected ac tivity” mainly includes disclosing con duct that the “whistle blowing” em ployee reasonably believes violates:

To set out a prima facie case in a SOX whistleblower case, an employee must show that:

He or she engaged in protected conduct;

• The employer took adverse action against the employee; and

• The protected activity was a “con tributing factor” in the employer’s de cision to take adverse action.

As legal counsel for employers, Nex sen Pruet defends whistleblower cases by showing that the adverse action was taken for legitimate, non-retalia tory reasons unrelated to the protected activity, such as for poor performance or misconduct, or by relying on other available defenses. Documents that can be used to support employer de fenses may include performance re views, written warnings, training records, witness statements, and com pany policies.

In the matter announced by OSHA on Sept. 1, the employer asserted that the position of the employee who al leged misconduct was eliminated in a restructuring. Also, the employer has since stated publicly that it will appeal OSHA’s findings and plans to an ad ministrative law judge.

Under most of the statutes with whistleblower provisions enforced by OSHA, if the agency believes a com plaint has merit, it can propose that the employer pay back wages, interest, lost bonuses and benefits, front pay (or reinstate the employee), compen satory damages, and the employee’s attorney’s fees. But again, OSHA’s findings and proposed fines represent allegations based on its own investiga tion — they do not constitute an order or final determination. The employer can request a hearing and present evi dence showing that the adverse action was taken for legitimate, non-retalia tory reasons and the agency’s proposal

• Stating that employees who report violations will be protected from re taliation;

• Providing more than one individu al to whom employees can make com plaints;

Training personnel to investigate reports of violations;

• Documenting all communications with the complaining employee about his or her allegations and the investi gation;

• Seeking legal advice from subject matter experts before taking disciplin ary action involving employees who report perceived misconduct;

Documenting the valid, non-retal iatory reasons for any disciplinary ac tion or employment decision; and

Giving employees written perfor mance feedback on a regular basis so that appropriate disciplinary action can be taken promptly if and when necessary, even in cases where an em ployee complains of a policy violation.

Taking steps like these may not prevent whistleblower claims, but they should substantially reduce the risk of litigation and liability for employers.

David Dubberly chairs Nexsen Pruet’s Employment and Labor Law Group and co-chairs the firm’s Inter national Law Team.

Firm marks pro bono initiative milestone

Moore & Van Allen PLLC (MVA) has announced that the Charlotte Triage Pro Bono Partnership (Char lotte Triage) — developed to expand pro bono services for low-income Charlotte residents — marked its fourth anniversary with CLE train ing sessions attended by 272 legal and other professionals who learned about Charlotte Triage and partici pated in training to assist pro bonoclients, according to a news release from the firm.

Led by MVA, McGuireWoods, Wells Fargo, Bank of America, and Duke Energy, Charlotte Triage is a collaboration between area law firms

and corporate legal departments. Charlotte Triage supports Legal Aid of North Carolina-Charlotte and the Charlotte Center for Legal Advocacy by enabling the legal aid organiza tions to outsource work to private practice lawyers and in-house counsel for matters related to human traf ficking, criminal record expunctions, healthcare enrollment, housing evic tion defense and special immigrant juvenile cases.

Among the speakers at the Char lotte Triage CLE event on Sept. 28 were Keith Cockrell, president of Bank of America Charlotte; Kodwo GharteyTagoe, executive vice president, chief

legal officer and corporate secretary of Duke Energy; Mark Metz, Wells Fargo deputy general counsel; Ashley Camp bell, CEO of Legal Aid of North Caroli na; and Toussaint Romain, CEO of the Charlotte Center for Legal Advocacy.

“We are very appreciative of all our law firm and corporate partners who have helped to make the Charlotte Triage Pro Bono Partnership a success over the last four years,” said Thomas L. Mitchell, MVA’s managing partner and chair of the firm’s Management Committee. “We are most pleased that the program has been able to help so many of our neighbors in need gain ac cess to legal counsel.”

In addition to the law firms and cor porate legal departments serving as leaders of Charlotte Triage, more than a dozen other law firms and corporate legal departments have contributed volunteers to this project, making it a truly collaborative program across the Charlotte legal community.

Formed in 2018, Charlotte Triage has been recognized for exemplary pro bono service with the 2020 Corporate Pro Bono Partner Award from the Pro Bono Institute, and the Outstanding Pro Bono Collaborative Service award in 2020 from the North Carolina Bar Association.

Staff report

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TRUST / Appeals court denies state’s motion

plaintiffs failed to demonstrate the state had waived sovereign immu nity and lacked standing to make a claim under the public trust doc trine because only the state can en force it.

The trial court denied the mo tion and the state appealed.

Judge Toby Hampson affirmed.

“Our review of the development of North Carolina law applicable to both sovereign immunity and the public trust doctrine leads us to conclude sovereign immunity does not bar plaintiffs’ claim implicat ing the public trust doctrine in this case,” he wrote.

‘A tool for judicial review’

As a common law doctrine, the public trust doctrine is barred by the defense of sovereign immunity, the state told the court.

But Hampson noted that the courts have identified instances where sovereign immunity does not apply – specifically, where the state enters into a valid contract and subsequently breaches it.

Reviewing the case law on the public trust doctrine, Hampson highlighted three key principles. First, the public trust doctrine involves two concepts: “(1) pub lic trust lands, which are ‘certain land[s] associated with bodies of water [and] held in trust by the state for the benefit of the public[;]’ and (2) public trust rights, which are ‘those rights held in trust by the state for the use and benefit of the people of the state in common.’”

Second, “there is a definite dis tinction between the state’s inter est in public trust lands and the state claiming title to property against a private party,” while the third point established that only the state has standing to bring suit against a private corporation un der the public trust doctrine.

Applying the three key princi ples, Hampson found sovereign im munity did not prevent the plain tiffs’ suit.

“First, as plaintiffs allege, pro tecting fisheries falls within the purview of the public trust doc trine, and ‘the state can no more abdicate this duty than it can ab dicate its police powers in the ad ministration of government and the preservation of the peace,’” he wrote. “Second, plaintiffs here are not asserting rights of ownership or exclusive access to public trust lands. … Third, and concomitant ly, plaintiffs are not attempting to enforce public trust rights against a private party – i.e. suing com mercial fisherman 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 obliga tion to manage and protect fisher ies for the benefit of the general public.”

The North Carolina Supreme Court has recognized the state may sometimes act contrary to the pub lic interest and application of sov ereign immunity in the case would reduce the public trust doctrine to nothing more than a “fanciful ges ture,” Hampson added.

“[T]he policy reasons usually of fered for sovereign immunity such as the need to prevent the diversion of public funds to compensate for private purposes are inapplicable in this case,” he said. “Plaintiffs are not requesting the state com pensate a private individual/corpo ration for alleged damages but are seeking an injunction preventing the state from committing breaches of its alleged obligations under the public trust doctrine.

“Thus, because of the nature of the public trust doctrine as a tool for judicial review of the state’s ac tions as trustee of fisheries, we con clude sovereign immunity does not apply in this case. Therefore, plain tiffs’ claims for declaratory and in junctive relief against the state for breach of its alleged duties under the public trust doctrine are not barred by sovereign immunity.”

Colorable constitutional claims

Even assuming sovereign immu nity did apply, the plaintiffs’ com plaint also presented sufficient al legations of a claim arising directly under two constitutional provi sions: Article XIV, § 5 and Article

I, § 38, Hampson added.

For a claim of a direct consti tutional violation, plaintiffs must satisfy a three-party test: a state actor must have violated an indi vidual’s constitutional rights, the claim must be colorable and there must be no adequate state remedy.

In their complaint, the plain tiffs pointed to two administrative agencies – the North Carolina Di vision of Marine Fisheries and the North Carolina Marine Fisheries Commission – as the state actors that failed to protect their consti tutionally guaranteed right to har vest fish.

Their claim was colorable, based upon the language of Article XIV, § 5, which states “[i]t shall be the policy of this State to conserve and protect its land and waters for the benefit of all its citizenry … ,” com plete with “extensive data points” documenting the stock status and stock population trends of certain fish species.

Finally, assuming arguendo the public trust doctrine claim is barred by sovereign immunity, the remedy of declaratory and injunctive relief cannot be redressed through any other means, Hampson said.

Similarly, the plaintiffs suffi ciently alleged a claim arising di rectly under Article I, § 38 of the state Constitution for the failure to protect their constitutionally pro tected right to harvest fish.

“The first sentence of Section 38 makes clear the right to fish belongs to the people,” Hampson wrote. “Moreover, its inclusion in Article I indicates the General As sembly intended for this right to

be protected against encroachment by the State. … [B]oth the plain language and history of Article I, § 38 support the conclusion this provision imposes an affirmative duty on the State to preserve the people’s right to fish and harvest fish. This includes some duty to preserve fisheries for the benefit of the public. In this case, plaintiffs’ have alleged facts, which if proven, may tend to show the State did not properly manage the fisheries so as to forever preserve the fish popula tions for the benefit of the public.

As such, plaintiffs have alleged a colorable constitutional claim un der Article I, § 38.”

A spokesperson for the Office of the Attorney General declined to comment on the decision.

Keith R. Johnson of Poyner Spruill in Raleigh, who represent ed the plaintiffs, declined to com ment, citing a statement from the CCA.

“We are gratified by the Court of Appeals’ unanimous decision, which reaffirms over a century of precedent and upholds a consti tutional amendment ratified by approximately 60 percent of the voters,” CCA’s Executive Director David Sneed said in the statement.

“We look forward to proving our case on the merits and ensuring that a legacy of sustainable coastal fisheries will be there for all our children and grandchildren.”

The 27-page decision is Coastal Conservation Association v. State (Lawyers Weekly No. 011-131-22).

The full text of the opinion is avail able online at nclawyersweekly. com.

STATE / Former state official returns to firm

ing bringing HQ2, Amazon.com Inc.’s East Coast headquarters, to Arlington. Other successes include Micron Technology Inc.’s expansion of its semiconductor manufactur ing facility in Manassas, Merck’s expansion in Rockingham County and Morgan Olson’s new manufac turing facility in Danville and Pitt sylvania County.

Ball oversaw 10 state agencies, including the Virginia Economic Development Partnership, the Virginia Innovation Partnership Authority, Virginia Housing, the Department of Housing and Com munity Development and Virginia Tourism.

“I look forward to leveraging my experience and resources to help clients achieve their business objec tives,” Ball said in a statement. “I

am also pleased to once again work with top-notch team members here at Williams Mullen.”

Ball received his bachelor’s and law degrees from the University of Virginia and served as U.S. attor ney for the Central District of Cali fornia from 1981 to 1982.

Ball won’t be the only state gov ernment alum to work for Williams Mullen. Christopher J. “Chris” Mc Donald joined the firm in January

as director of government relations in the Richmond office. He served in Gov. Terry McAuliffe’s adminis tration, counseling the governor’s office, the secretary of commerce and trade and then-Department of Mines, Minerals and Energy, along with others.

Williams Mullen has 240 attor neys in offices in North Carolina, Virginia and South Carolina.

report

“We are gratified by the Court of Appeals’ unanimous decision, which reaffirms over a century of precedent and upholds a consti tutional amendment ratified by approximately 60 percent of the voters,” said David Sneed, executive director of the CCA. Deposit Photos

Domestic Relations

Child Custody – Court’s Jurisdiction – UCCJEA – Parent’s Constitutional Rights

Parent did not abdicate their con stitutional rights to parent where coparent moved away with their child, inhibiting parent’s attempts to main tain contact, and grandparent seek ing custody acted to thwart parent’s relationship with the child.

Background

Plaintiff Michael Sulier, father of Andrea, lived together with Andrea’s late mother when Andrea was born. Over the next two years, father and Andrea’s mother repeatedly sepa rated and got back together. During this time, father took care of Andrea while her mother was at work. Father and Andrea’s mother permanently separated in 2014. Andrea went with her mother, who moved away and got married. Father had no contact with Andrea after permanently separat ing from her mother, as he believed he could no longer communicate with her due to a no-contact order. When the no-contact order was lifted, father attempted to locate Andrea but could not do so as her mother had changed her last name.

Andrea and her mother eventually moved to North Carolina in August 2017. Andrea’s mother passed away in May 2020. Defendant, Andrea’s maternal grandmother, traveled from Michigan and removed Andrea from North Carolina to live with defendant in Michigan without providing no tice to father, who had since moved to South Carolina. Father returned to North Carolina to pick up Andrea after learning of her mother’s passing but was not informed defendant had taken Andrea to Michigan.

Guardianship Proceedings

Defendant filed a guardianship proceeding in Michigan after arriving with Andrea, leading to the entry of an emergency order. Father then filed the present complaint for child cus tody, after which defendant filed her own action for permanent custody in Michigan. The Michigan and North Carolina courts held a UCCJEA con ference, which led to the Michigan court finding that Michigan was not Andrea’s home state and dismissing defendant’s custody action.

Defendant then moved to dismiss the present custody complaint, along with a verified answer and counter claim seeking permanent primary custody of Andrea. The trial court entered an order ruling that North Carolina had jurisdiction over the custody matter because North Caro lina was Andrea’s home state under the UCCJEA as she had resided there for three years prior to her mother’s passing. The trial court further con cluded that father had not abdicated his parental rights and was fit and proper to care for Andrea and accord ingly awarded him full custody of An drea.

Defendant appealed the trial

Opinions

court’s assertion of subject matter jurisdiction and the dismissal of her custody claim and the award of cus tody to father, arguing that he had abdicated his constitutional rights as a parent.

North Carolina Had Subject Mat ter Jurisdiction

We affirm the trial court’s judgment. We first agree that North Carolina has ju risdiction over the present custody mat ter under the UCCJEA, finding that An drea resided in North Carolina in the six months prior to her move to Michigan and defendant’s filing of legal proceed ings in that state. We rule that Andrea’s presence in Michigan was a temporary absence from North Carolina as she had only been in Michigan for 11 days when defendant filed litigation in that state. We note the Michigan court’s finding that defendant sought to hide Andrea from father and establish custody for herself in Michigan.

Father Retained His Constitution al Parental Right

We further affirm the trial court’s rul ing that father never abdicated his pa rental rights. We note that upon learning of Andrea’s mother’s death, he immedi ately came to North Carolina to retrieve Andrea and made inquiries about her whereabouts. We further note that father never signed any document voluntarily ceding his parental rights to defendant or to Andrea’s mother’s husband. We note that father and Andrea’s mother never obtained a custody order follow ing their permanent separation, and that father did not contact Andrea after the separation believing he could not do so pursuant to a no-contact order. We fur ther find that father attempted to locate and reestablish contact with Andrea after the order was lifted but could not do so as Andrea’s mother had changed her name. Thus, we conclude that father never act ed inconsistently with his constitutional parental rights.

Affirmed.

Sulier v. Veneskey (Lawyers Weekly No. 011-154-22, 46 pp.) (Donna Stroud, J.) Appealed from Davie County District Court (Mary F. Covington, J.). Michael Keith Sulier, pro se plaintiff; Andrew J. Wingo and Victoria L. Stout for defen dant. 2022-NCCOA-658

Criminal Practice

Forcible Rape – Kidnapping – Failure to Allege Element of Crime – Suffi ciency of Evidence

Failure of indictment to allege essen tial element of second-degree forcible rape deprived the trial court of jurisdic tion to try defendant on that count.

Background

Defendant appealed his conviction for second-degree forcible rape and firstdegree kidnapping in connection with an encounter with Jane, a female college student. Jane went to a bar with a group of friends during Thanksgiving break, where she consumed alcohol and be came highly impaired. Surveillance foot age showed defendant helping Jane into his car around 2:25 am. Jane testified that

she became conscious several hours later to find herself in defendant’s car with de fendant on top of her engaging in sexual intercourse with her. Jane testified that she told defendant to get off her, which he complied with. Jane further testified that she tried to locate her cell phone and asked defendant to call her number. When she realized that her phone was not in the car, she fled on foot. Defen dant did not attempt to prevent her from fleeing.

In contrast, defendant testified that he found Jane lying on the sidewalk, woke her up, and asked if she wanted to get in his car to get out of the cold. De fendant claimed that Jane consented and they engaged in small talk in the car before Jane eventually fell asleep. Defen dant testified that he drove to a secluded parking lot, after which Jane woke up and asked defendant to have sex with her. Defendant testified they engaged in con sensual sex twice, after which Jane asked defendant to help her find her cell phone and eventually “took off.”

Superior Court Lacked Jurisdic tion to Try Forcible Rape Charge

We first vacate defendant’s convic tion for second-degree forcible rape, agreeing with defendant that the supe rior court lacked jurisdiction to try him on that charge because the grand jury indictment failed to allege one of the es sential elements of the offense. Specifi cally, we note that the indictment did not allege that defendant knew or reason ably should have known that Jane was physically helpless when he engaged in sexual intercourse with her. Although there was sufficient evidence presented at trial to allow the jury to infer that de fendant knew or should have known Jane was physically helpless, we hold that the failure to allege this element in the in dictment deprived the superior court of jurisdiction.

No Error in Defendant’s Kidnapping Conviction

However, we affirm defendant’s con viction for first-degree kidnapping, find ing the evidence at trial sufficient to sup port the conviction. We note that there was evidence that defendant removed Jane from the area where he found her when he placed her in his car and drove away, while the fact that Jane was severely impaired from alcohol also supported a finding that defendant took Jane away without her consent. Even if Jane con sented to getting into defendant’s car to get out of the cold, defendant did not drive away until after Jane fell asleep. We also note that the evidence supports an inference that defendant removed Jane to a secluded parking lot for the purpose of committing forcible rape. Finally, we hold that defendant did not “release” Jane in a safe place as she was still highly intoxicated and in an unfamiliar place, distant from anywhere she could obtain help

No error in part, vacated and dis missed in part.

State v. Singleton (Lawyers Weekly No. 011-155-22, 10 pp.) (Chris Dillon, J.) Appealed from Wake County Superior Court (Jeffrey B. Foster, J.). Assistant Attorney General Benjamin Szany for plaintiff; Danielle Blass for defendant. 2022-NCCOA-656

Domestic Relations

Juvenile Delinquency – Larceny –Failure to Inform Defendant of Rights

Trial court committed prejudicial er ror by failing to inform juvenile of their right against self-incrimination prior to the juvenile’s inculpatory testimony at a delinquency hearing.

Background

Defendant, a juvenile, appealed his adjudication of delinquency for felony larceny. The victim, Johnny Rodriguez, was visiting a convenience store when he noticed a group of male teenagers stand ing outside. Upon getting into his vehicle to leave, one of the teens approached Rodriguez to ask him for money and marijuana. The teen then reached into Rodriguez’s car to grab a container of marijuana. Rodriguez struggled with the teen to retrieve the container, lead ing the other teens to start fighting. The teens pulled Rodriguez out of his car and pulled him several feet away. During the altercation, Rodriguez notices one of the teens going through his wallet in his car. Rodriguez eventually freed himself and chased the teen who had his wallet, caus ing the teen to toss the wallet.

Defendant was charged with robbery. At the adjudication hearing, Rodriguez testified that due to an eye injury he suf fered during the fight, he could not iden tify defendant as the individual who took his wallet. Defendant was called by his counsel to testify on his own behalf. The trial court did not administer any oral or written warnings prior to defendant’s tes timony. Defendant testified that while he was at the convenience store, his friends were the individuals who started fighting Rodriguez. Defendant further admitted that after Rodriguez was pulled from his car, he got into the car and took Rodri guez’s wallet. Based on that testimony, the trial court adjudicated defendant de linquent of larceny.

Defendant appealed, challenging the sufficiency of the evidence and arguing that the trial court erred by failing to advise him of the privilege against selfincrimination prior to his testimony.

Trial Court Was Obligated to Ad vise of the Privilege Against SelfIncrimination

We agree that the trial court erred in failing to follow its statutory mandate to protect defendant’s privilege against self-incrimination and that this error was prejudicial. State law requires the trial court to actively take steps to ensure that a juvenile’s rights, including the privilege against self-incrimination, are protected during a delinquency hearing. This in cludes conducting a colloquy to ensure that the juvenile understands their privi lege against self-incrimination before the juvenile chooses to testify. Because the trial court said nothing to defendant re garding his right not to incriminate him self, we vacate defendant’s adjudication of delinquency because the trial court’s error was prejudicial as defendant’s tes timony provided the sole evidence iden tifying him as the individual who took Rodriguez’s wallet.

Vacated and remanded. In the Matter of: A.O. (Lawyers Weekly No. 011-155-22, 7 pp.) (April Wood, J.) Appealed from Mecklenberg County Juvenile Court (Reggie E. McK night, J.). Assistant Attorney General LeeAnne N. Lawrence for plaintiff; As sistant Appellate Defender David W. An drews for defendant. 2022-NCCOA-651

Real Property

Subdivision – Restrictive Covenant –Failure to Include Hearing Transcript – Inability to Conduct Appellate Review

Evidence that defendant had driven his girlfriend away against her will while grabbing her by the hair and neck and hitting her was sufficient to find criminal intent. We affirm defendant’s conviction.

Background

Plaintiff appealed the trial court’s grant of defendants’ motion to dismiss plaintiff’s complaint. Defendants’ prop erty was previously owned by Integrity Builders of NC, LLC, which had subdi vided a tract into 16 residential lots. The subdivision plat filed by Integrity did not reference any restrictions on the lots. In tegrity later deeded 11 of the lots to plain tiff. Plaintiff then executed and recorded a declaration of covenants, which placed restrictions on the 11 lots he owned, in cluding a setback requirement and limi tations on the types of exterior materials that could be used for residences.

Plaintiff sent defendants a letter al leging their violation of the declaration

and demanding they bring their lot into compliance. Defendants refused to make the requested changes, leading plaintiff to file the present action for injunctive re lief and monetary damages. Defendants moved to dismiss pursuant to Rule 12(b) (6), arguing that the declaration was not applicable to their lot, did not create a North Carolina Planned Community, and was not enforceable by plaintiff. The trial court granted the motion to dismiss pursuant to Rule 12(b)(2), but did not ref erence defendants’ Rule 12(b)(6) motion.

State Presented Substantial Evi dence of Intent to Inflict Serious Bodily Harm

We vacate the trial court’s order and remand for further proceedings. While the parties argued that the trial court’s reference to Rule 12(b)(2) was an inad vertent drafting error, because the par ties failed to include a transcript of the hearing on the motion to dismiss or file a narrative, we cannot determine what oc curred or what was argued at the hearing. Thus, we cannot engage in meaningful appellate review of the trial court’s order because we are unable to determine if the trial court ruled on defendants’ Rule 12(b)(6) motion. However, we note that Rule 12(b)(2) is not applicable to the case, as the parties had stipulated to personal jurisdiction.

Dietz, J., concurring: “I agree with the majority that the record on appeal— in particular, the lack of a transcript of the hearing—prevents us from engag ing in meaningful appellate review of the trial court’s order. It is exceedingly likely that the reference to Rule 12(b)(2) is an inadvertent clerical error and that the trial court meant to reference Rule 12(b) (6). But without a transcript, we cannot be certain that the issue of personal ju

risdiction was not presented to the trial court. Thus, the appropriate remedy is to remand the matter for the court to clarify its ruling.”

Vacated and remanded.

Gouch v. Rotunno (Lawyers Weekly No. 011-157-22, 10 pp.) (April Wood, J.) Appealed from Gaston County Supe rior Court (Carla Archie, J.). Winfred R. Ervin, Jr. and Isaac Cordero for plain tiff; Brett E. Dressler for defendants. 2022-NCCOA-650

Prisons & Jails

Civil Rights – ADA – Library Access –Deliberate Indifference Standard

The disabled plaintiff-prisoner has shown that his rights under the Americans with Disabilities Act were violated when he was denied a pass to the handicap library for his first seven months at a new prison; however, he has failed to show delib erate indifference on the part of the prison’s staff.

We affirm summary judgment for the defendant-state.

Plaintiff Rodney Koon is a dis abled prisoner who walks with a cane. His prison-approved accom modations under the Americans with Disabilities Act (ADA) included a restriction of no climbing.

In March of 2016, Koon was transferred to Pender Correctional, where accessing the general popula tion library required climbing two flights of stairs. There was a handi cap library at Pender that was ac cessible without using the stairs, but it required a handicap pass.

Over the course of several months, during four sick-calls, Koon brought up his need for a handicap pass. Eventually, this led to a re view of his records by the medical staff who could provide the pass he wanted.

Somehow, however, Koon’s re quest was entered into the system as a request for a renewal. Defen dant Diane Browning, a newly pro moted nurse practitioner, seeing that Koon had never been issued a handicap pass, denied his request for a renewal.

Koon’s administrative grievance of this denial was denied at all lev els.

Koon finally got a handicap pass in October, after a new doctor re viewed his records. But Koon says the damage had already been done when he was forced to walk to the library up two flights of stairs from March to October.

Koon filed this suit seeking com pensatory damages for the aggravat ed injuries to his legs. The district court granted summary judgment to North Carolina because Browning’s denial of plaintiff’s request to renew a handicap pass implicated, at most, negligence on defendant Browning’s part, and the ADA does not provide a remedy for negligence.

Discussion

For the sake of deciding Koon’s appeal, we will assume that an ADA compensatory damages claim may be proven by deliberate indifference, and that sovereign immunity poses

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no problem to his claim.

In essence, the deliberate-in difference standard starts with determining whether there was— objectively speaking—an ongoing or likely violation of some federal right, and then moves on to deter mining whether a defendant had the appropriate mental state—sub jectively speaking—toward that fed eral-rights violation.

Construing the evidence in the light most favorable to Koon and drawing all inferences in his favor, he was owed a handicap pass to ac cess the ground-floor library. So his claim depends on whether he has put forward enough evidence to make out the mental state of delib erate indifference toward that fed eral right.

Deliberate indifference is, at bot tom, an actual-notice standard. An official must know of the dangers to federal rights and nonetheless dis regard them. Koon must prove that some North Carolina official with the authority to address his problem both had knowledge of his federally protected rights and nonetheless failed to help him.

Koon mainly focuses on two North Carolina officials who he ar gues were deliberately indifferent: Nurse Practitioner Browning and Administrator Bryan Wells. But Koon has not made the showing re quired to create a genuine issue of fact that either of those officials was deliberately indifferent to Koon’s right to reasonable accommodation.

Even if we assume that Browning

knew Koon well enough to match his name on the computer screen to the face of the inmate she saw walking around and therefore knew Koon walked with a cane, there is no evi dence that walking with a cane was enough by itself to get a handicap pass.

Next, constructive knowledge is not enough, so even though there was a database that listed Koon’s climbing restriction, there is no evidence to suggest that Browning looked at that database before re jecting the pass. Koon claims that she should have done more, but his arguments rely on the language of negligence. Deliberate indifference requires that Browning knew that Koon likely could not meaningfully access the library as was his right and nonetheless failed to give him a pass. There isn’t enough in this record to create a genuine issue of material fact.

The dissent disagrees, pointing to inferences that could be drawn in Koon’s favor. But we may only draw inferences that fall within the range of reasonable probability based on evidence in the record.

Because Koon has not created any genuine dispute of material fact here that could lead a reason able jury to find that either indi vidual defendant or any other agent of North Carolina was deliberately indifferent to his federally protected rights under the ADA, the district court was right to grant summary judgment to defendants.

Dissent

(Wynn, J.) I dissent from the ma

jority opinion’s conclusion that Koon failed to create a genuine dispute of material fact regarding defendants’ deliberate indifference. The prison staff at Pender Correctional Institu tion were well aware that Koon suf fered from debilitating hip, leg, and ankle pain stemming from a motorvehicle accident that shattered his femur and fractured his hip. Koon’s medical file designated him as an ADA inmate, and Koon had sub mitted numerous sick-call requests detailing his movement restrictions and ADA status.

Prison staff had also observed Koon walking around with his cane. On several of these occasions, Koon spoke directly to prison staff regard ing his disability. He also described his problem to the prison warden in person, in a letter, and in a formal grievance he filed on the basis of his disability.

Prison staff also knew that the ADA required them to reasonably accommodate Koon’s disability. But instead of heeding that statutory mandate, for months, prison staff ig nored or flatly denied—on the thin nest of pretexts—Koon’s request for a handicap pass that would allow him to use a ground-floor library. Instead, they quite literally watched as he hopped and hobbled up and down the 17 steep steps to the regu lar library.

Unsurprisingly, the strain from these exertions caused Koon’s sur gically repaired legs to swell for weeks, and eventually contributed to a medial meniscus tear. Even af ter prison staff reviewed the MRI showing Koon’s meniscus tear, they

continued to do nothing for months. That surely is enough to survive a motion for summary judgment if we faithfully apply the Rule 56 stan dard.

Koon v. North Carolina (Law yers Weekly No. 001-106-22, 60 pp.) (Julius Richardson, J.) (James Wynn, J., dissenting) No. 21-6616. Appealed from USDC at Raleigh, N.C. (Louise Flanagan, J.) Danielle Rebecca Fener, Samuel Weiss, Sa brina Strong and Kendall Turner for appellant; Alex Ryan Williams and Joshua Stein for appellees. 4th Cir.

Real Property

Mortgages – Foreclosure – Power of Sale – Attorneys – Trustee Neutrality

In this foreclosure by power of sale proceeding, the trustee not only failed to file the notice of neutrality required by G.S. § 45-12.16(c)(7)(b), but also acted as the lenders’ attorney in ini tiating the proceeding, in violation of G.S. § 45-10(a). Allowing the foreclo sure to proceed on these facts would eviscerate the requirement that trust ees remain neutral in foreclosure pro ceedings.

We reverse the trial court’s denial of the borrowers’ motion to set aside the foreclosure under N.C. R. Civ. P. 60(b).

In re Simmons (Lawyers Weekly No. 011-158-22, 7 pp.) (Jefferson Grif fin, J.) Appealed from Yadkin County Superior Court (Michael Duncan, J.) Mickey Simmons, Wayne Simmons

With

Hedrick Gardner Kincheloe & Garofalo is pleased to announce that the legal team of Nichols, Choi, and Lee have joined the rm’s civil practice group. rough this union, Hedrick Gardner welcomes Anna Baird Choi, Catherine E. Lee, M. Jackson “Jack” Nichols, Grant Simpkins, and Carrie Duhon to the rm’s Raleigh o ce.

Hedrick Gardner welcomes the Attorneys of Nichols, Choi, & Lee

and Sally Simmons, pro se. 2022-NC COA-652

Contract

Implied in Fact – Sovereign Immunity – UNC Pandemic Closures

Where students of the state’s uni versities allege that they had con tracts implied in fact with those universities, the students have suffi ciently alleged a waiver of the univer sities’ sovereign immunity.

We affirm the trial court’s denial of defendant’s motion to dismiss plain tiffs’ breach of contract claims and the grant of defendant’s motion to dismiss plaintiffs’ direct claims under the state constitution.

Based on defendant’s closure of its universities for the fall term of 2020, the plaintiff-students allege breach of contract as to both student fees and parking permit fees.

As to the student fees contract claim, the complaint alleges that defendant’s universities “offered to Plaintiffs and other prospective Fall 2020 Term . . . students that if the prospective students registered for the Fall 2020 Terms and promised to pay” student fees they “would, in turn, receive the services, benefits, and op portunities” described in the student fees. Plaintiffs and the other students then “accepted the offers” when they paid their student fees and thus “ex pected to receive, and were entitled to receive . . . all of the services, benefits, and opportunities” described. Accord ing to the complaint, this constituted “a meeting of the minds,” thereby cre ating a contract.

While plaintiffs and the other stu dents in the class “fully performed their duties” by paying the student fees, the universities breached the contract when they shut down their campuses because they either stopped providing the services or “rendered” them “of no value whatsoever.”

As to the parking fees contract claim, the universities “offered to sell optional parking permits” to plain tiffs and other students “which would permit the purchaser to park a motor vehicle in an on-campus parking lot during the Fall 2020” Term. Plaintiffs and some other students “accepted the offers” by buying the parking passes, thereby forming a contract. The complaint alleges all relevant students performed by paying their parking fees fully and expected and were entitled to receive “the full ben efit of their parking permits for the duration of the Fall 2020 Term.” But the universities breached the contract by shutting down their campuses, which meant the on-campus parking passes were “rendered worthless.”

While plaintiffs and other students received partial refunds, the refunds did not cover the full cost of the park ing passes.

A valid contract can waive sover eign immunity. North Carolina rec ognizes three variations of contract theory: express contract, contract implied in fact, and contract implied in law. Our caselaw teaches that ex press contracts with the state waive the state’s sovereign immunity but that contracts implied in law – quasicontracts – do not.

Some of our quasi-contract cases include broad language that, when read literally and taken out of con text, could also exclude contracts im plied in fact from the waiver of sov ereign immunity. These cases’ broad

statements do not change the fact that the cases concern contracts im plied in law only. They do not mention contracts implied in fact.

Other cases hold that the state waives its sovereign immunity when it enters into a contract implied in fact. Although these cases are all from the employment context, the reason ing of those cases extends beyond the employment context.

In the employment cases, an em ployee agrees to work for the employ er, and the employer agrees to pay the employee; based upon these facts, the terms of the implied contract are clear, even without an express written contract. In the educational context, as alleged by plaintiffs’ complaint, the educational institutions agreed to ac cept and enroll the students, and the students have agreed to pay certain fees for particular services to be pro vided as part of the educational pro gram. The parameters of the alleged implied contract are quite clear, and the state may, with a fair degree of accuracy, estimate the extent of its li ability for a breach of contract.

Except for the method of proving the fact of mutual assent, there is no difference in the legal effect of ex press contracts and contracts implied in fact. And that difference in the method of proving mutual assent has no effect at this pleading stage of pro ceedings. The issue of mutual assent is one for the trier of fact.

Finally, the General Assembly en visioned that defendant could be sued for this type of claim because it passed a statute granting “institution[s] of higher education . . . immunity” from claims related to “tuition or fees paid” for the Spring 2020 semester when the claim is based on “an act or omis sion” related to COVID-19. G.S. § 116-311. There would be no need for this separate immunity statute if the General Assembly believed sovereign immunity already prevented such a claim.

Thus, we conclude a contract im plied in fact can waive sovereign im munity.

To plead a valid implied-in-fact contract, plaintiffs needed to plead offer, acceptance, and consideration. Plaintiffs properly pled each of those three elements. In addition to proper ly pleading a valid contract, plaintiffs also properly pled its breach.

Since plaintiffs have an available claim with the same remedy as the one they seek directly under the N.C. Constitution, the trial court did not err by dismissing plaintiffs’ state con stitutional claim.

Affirmed.

Lannan v. Board of Governors (Lawyers Weekly No. 011-159-22, 53 pp.) (Donna Stroud, C.J.) Appealed from Wake County Superior Court (Edwin Wilson, J.) David Stradley, Robert Holmes and Brian Westrom for plaintiffs; Laura McHenry, Kari Johnson, Jim Phillips and Jennifer Van Zan for defendant. 2022-NC COA-653

Criminal Practice

Search & Seizure – Automobile Ex ception – Public Vehicular Area – Gas Pump -- Plain Smell – Heroin

Defendant’s SUV was stopped at the gas pump of a service station when police searched it without a warrant. The vehicle was in a “public vehicular area,” so it fell within the automobile exception to the Fourth Amendment’s warrant requirement.

We affirm the trial court’s denial of

defendant’s motion to suppress.

The Fourth Amendment generally requires a warrant to justify a search. However, pursuant to the automo bile exception, “[a] search of a motor vehicle which is on a public roadway or in a public vehicular area is not in violation of the [F]ourth [A]mend ment if it is based on probable cause, even though a warrant has not been obtained.” State v. Isleib, 319 N.C. 634, 356 S.E.2d 573 (1987).

The definition of “public vehicular area” set out in G.S. § 20-4.01(32) in cludes “by way of illustration and not limitation” any driveway or parking lot upon the premises of any service station.

The plain meaning of “service sta tion” is a gas station. Gas stations sell gas dispensed from fuel pumps to the public, so by its plain meaning the definition of “public vehicular area” includes the area for driving or park ing adjacent to gas pumps. In fact, the primary purpose of the area adjacent to gas pumps at a service station is to be “used by the public for vehicular traffic”; gas pumps provide fuel for vehicles.

We are bound by this plain mean ing. The public vehicular areas at a “service station” thus include the paved area adjacent to the fuel pumps.

Police searched defendant’s SUV when it was stopped by a gas pump at a gas station, where defendant was pumping gas into the vehicle. As we have explained, the area used for pub lic vehicular traffic adjacent to the gas pumps on the premises of the service station is included in the definition of public vehicular area. Because defen dant’s SUV was in a public vehicular area, the automobile exception can apply.

Contrary to defendant’s argument, our interpretation does not expand State v. Ricks, 237 N.C. App. 359, 764 S.E.2d 692. Ricks was decided upon the lack of evidence that a va cant lot was open for public vehicular traffic at all. The area adjacent to the gas pumps here is similar in nature to those examples provided by the General Assembly in the statute, spe cifically driveways and parking areas. The area adjacent to a gas pump at a service station is entirely different from a dirt path used by bicycles and pedestrians on a vacant lot.

In determining whether police had probable cause to search defendant’s SUV, the trial court also properly con sidered the plain smell doctrine.

Defendant argues, “There is no ap pellate authority in North Carolina specifically authorizing the search of a vehicle based on the odor of heroin.”

Defendant contends the plain smell doctrine has been used only for mari juana, not heroin. But this court has previously explained, “Plain smell of drugs by an officer is evidence to conclude there is probable cause for a search.” State v. Downing, 169 N.C. App. 790, 613 S.E.2d 35 (2005). In Downing, the drug the officers smelled was cocaine, not marijuana. And as defendant recognizes, we have caselaw holding the smell of marijua na alone provides probable cause.

We see no reason to treat the plain smell of heroin any differently than the plain smell of marijuana or cocaine based upon the trial court’s unchallenged findings of fact. Detec tive King “noticed the vehicle was emanating an odor of vinegar” and in his “training and experience, such an odor is associated with heroin.”

The trial court did not err in finding probable cause existed to search de fendant’s SUV.

Affirmed.

State v. Parker (Lawyers Week ly No. 011-160-22, 31 pp.) (Donna Stroud, C.J.) Appealed from Guil ford County Superior Court (Andrew Heath & William Wood, JJ.) Neal McHenry for the state; Shawn Evans for defendant. 2022-NCCOA-655

Criminal Practice

Appeals – Sentencing – Mitigating Factors – Presumptive Range

The state agreed that defendant, who pled guilty and testified against a co-defendant, had presented suffi cient evidence of mitigating factors 7 and 11 under G.S. § 15A-1340.16(e). However, since the trial court consid ered the evidence and mitigating fac tors, it could nevertheless choose to sentence defendant in the presump tive range. Under the Structured Sentencing Act, since defendant was sentenced in the presumptive range, the trial court was not required to find mitigating factors or to sentence defendant to a mitigated sentence.

Appeal dismissed.

State v. Freeman (Lawyers Weekly No. 011-161-22, 6 pp.) (Fred Gore, J.) Appealed from Wake County Supe rior Court (Keith Gregory, J.) Joseph Shuford for the state; Andrew Nelson for defendant. 2022-NCCOA-654

Criminal Practice

Larceny – Completion – Abandon ment in Store Parking Lot

Even though the driver of de fendant’s getaway car apparently refused to go along with defen dant’s theft of store merchandise – prompting defendant to abandon the merchandise in the store park ing lot – defendant completed the larceny when he left the store with out paying for the merchandise. Ac cordingly, he was not entitled to a jury instruction on attempted lar ceny.

We find no error in defendant’s conviction for felony larceny.

The elements of common law lar ceny are that the defendant (1) took the property of another and (2) car ried it away (3) without the owner’s consent and (4) with the intent to deprive the owner of his property permanently.

Asportation, or carrying away, does not require that the property be completely removed from the premises of the owner. Rather, a bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asporta tion, or carrying away.

Defendant quickly passed the Marion Tractor Supply store’s last point of sale and walked out of the front doors pushing a shopping cart containing unpaid merchandise. Defendant unloaded the items into his vehicle. During this period, de fendant possessed and controlled the goods, thereby severing the goods from the possession of Trac tor Supply for a duration of time. Thus, the element of “taking” was completed.

Defendant’s carrying away of the goods is evidenced by his pushing the shopping cart out the door af ter a store cashier told him that the goods were not paid for and after an anti-theft alarm sounded. To sat isfy the element of “carrying away,”

it was not required that defendant leave Tractor Supply’s premises with the items or that he continued to possess the items after he com pleted the larceny.

Tractor Supply did not give de fendant permission to leave with the unpaid goods. Conversely, the record tends to show store clerk Hudgins called after defendant to pay for the items as he left the store and chased him when he did not respond. Therefore, the element of “without the owner’s consent” was satisfied.

Finally, defendant’s intent to permanently deprive Tractor Sup ply of the items is shown by his re fusal to stop when Hudgins advised he had not paid for the goods and after the door alarms went off. De fendant’s intent is further shown by his loading the goods into his companion’s vehicle. The intent el ement was completed even though he ultimately left the items on Trac tor Supply’s premises, apparently due to the driver’s reaction.

Since the state presented evi dence of each element of larceny, and since defendant presented no evidence, defendant was not en titled to a jury instruction on at tempted larceny.

No error.

State v. Sisk (Lawyers Weekly No. 011-162-22, 12 pp.) (Jeffery Carpenter, J.) Appealed from Mc Dowell County Superior Court (Thomas Davis, J.) William Smith for the state; Stephen Driggers for

defendant. 2022-NCCOA-657

Contract

State Constitutional Claim – Law of the Land – Sovereign Immunity

In response to the plaintiff-uni versity’s claim that defendants have breached their stem-cell-technology licensing contracts with the univer sity, defendants have filed counter claims both for breach of contract and under the Law of the Land Clause of the North Carolina Constitution. The constitutional counterclaim al leges that the university has “taken” the license rights granted by the con tracts. Since the contractual and con stitutional injuries are one and the same, and since sovereign immunity doesn’t bar defendants’ contract coun terclaims, defendants may not bring counterclaims directly under the state constitution.

The court grants the university’s motion to dismiss defendants’ con stitutional and negligence counter claims.

Defendants’ negligence-based counterclaims against the university – a state agency – may be pursued in the Industrial Commission but not in superior court. While a litigant may assert third-party claims against a state agency in superior court under N.C. R. Civ. P. 14(c), this rule does not apply to counterclaims. In contrast with Rule 14(c)’s express modification of the State Tort Claims Act for thirdparty claims, Rule 13(d) stresses that “[t]hese rules shall not be construed

to enlarge beyond the limits fixed by law the right to assert counterclaims or to claim credit against the State of North Carolina or an officer or agency thereof.” N.C. R. Civ. P. 13(d). The limits fixed by law include the State Tort Claims Act. This means that a claimant may not assert a tort claim against the state as a counterclaim in superior court but must instead bring that claim before the Industrial Com mission.

University of North Carolina at Chapel Hill v. Vesta Therapeutics, Inc. (Lawyers Weekly No. 020-054-22, 9 pp.) (Adam Conrad, J.) Cary Davis, Preetha Suresh Rini, Brendan Bif fany and Marla Bowman for plaintiff; Robert Ekstrand, James Christian, Nicole Newman and John Floyd for defendants. 2022 NCBC 54

Tort/Negligence

Civil Conspiracy – Intracorporate Immunity – Affiliated Entities – First Impression – Labor & Employment –Severance Package

In the absence of guiding North Carolina law, the court chooses to follow the Fourth Circuit’s reasoning that intracorporate immunity applies to commonly owned affiliates.

The court grants defendants’ mo tion to dismiss as to remaining plain tiff Throneburg’s claims for civil con spiracy, “tortious retaliation,” and constructive trust. Defendants’ mo tion is denied as to plaintiff’s claims for piercing the corporate veil, suc cessor liability, violation of the Wage

and Hour Act (WHA), violation of the Uniform Voidable Transfers Act (UVTA), fraud, and violation of the Unfair and Deceptive Trade Practices Act (UDTPA). The motion is granted in part and denied in part as to plain tiff’s claim for violation of the Retalia tory Employment Discrimination Act (REDA).

Plaintiff served as CEO of defen dant Medflow, Inc. (Medflow). His three-year employment contract pro vided for certain payments to be made to him in the event of a change of con trol of Medflow.

Defendant Lindberg acquired a controlling interest in Medflow, prompting plaintiff to request the change-of-control payments. Defen dants, including several affiliated en tities controlled by Lindberg (Entity Defendants), failed to make the re quested payments, and plaintiff filed suit.

Piercing the Corporate Veil

Plaintiff alleges that (i) “all of the [Entity D]efendants . . . are members of a single enterprise owned (directly or indirectly) and wholly dominat ed and controlled by Lindberg”; (ii) Lindberg turned over Medflow’s fi nancial system, computer network, and documentation to certain Entity Defendants and nonparty affiliates; (iii) Lindberg caused Medflow to be come undercapitalized by forming defendant Medflow Holdings, LLC (Medflow Holdings), and “strip[ping] out assets, people . . . and operations [from Medflow]”; and (iv) “Medflow’s

Robert

Ralph

software and intellectual property is being co-mingled with software devel opment and intellectual property of MDOffice, IOPracticeware, ODOffice . . . with Medflow receiving no or inad equate consideration[.]”

These factual allegations permit an inference that Entity Defendants were mere instrumentalities or tools of Lindberg which had no separate mind, will or existence of their own.

Further, plaintiff alleges that Lind berg used Entity Defendants to (1) prevent plaintiff from obtaining the payments owed under his employment agreement and (2) transfer assets from Medflow to other defendants and non-party entities to defraud plaintiff from obtaining certain Medflow assets based on his security interest.

Accordingly, the complaint alleges sufficient facts that could show Lind berg’s complete domination over the Entity Defendants and that Lind berg’s domination proximately caused plaintiff’s injury by violating plain tiff’s legal rights under the employ ment agreement.

Civil Conspiracy

Defendants seek dismissal of plain tiff’s civil conspiracy claim under the intracorporate immunity doctrine: there can be no conspiracy between a corporation and its agents.

Plaintiff contends that, under North Carolina law, intracorporate immunity does not extend to common ly-owned affiliates. In North Carolina, the intracorporate immunity doctrine has been applied to officers, direc tors, and wholly owned subsidiar ies. Other jurisdictions have further extended the doctrine to commonlyowned affiliates. See Dunlap v. Cott man Transmissions Sys., LLC, 576 Fed. Appx. 225, 227 (4th Cir. 2014) (“The intracorporate immunity doc trine originates in antitrust laws and holds that a corporation cannot, with certain exceptions, conspire with its officers, wholly-owned subsidiaries, and commonly-owned affiliates.”). In the absence of guiding law in North Carolina, the court chooses to follow the Fourth Circuit’s reasoning that intracorporate immunity applies to commonly-owned affiliates.

WHA

The WHA defines an “employer” broadly to include “any person [or commercial entity] acting directly or indirectly in the interest of an em ployer in relation to an employee.”

G.S. § 95-25.2(5). Although plaintiff’s only direct employer was Medflow, the complaint contains allegations that all defendants, under Lindberg’s shared control, indirectly controlled plaintiff’s working conditions, account and pay roll functions, and responsibility for disbursement of funds.

Plaintiff’s allegation that his sal ary, change of control payments, and severance constitute wages as defined under the WHA, along with his allega tion that defendants wrongfully failed to make such payments and instead placed plaintiff on “paid vacation,” is sufficient to state a claim for relief against all defendants under G.S. § 95-25.2(16).

REDA

Plaintiff contends he was termi nated because he exercised his legally protected rights by filing a wage com plaint with the U.S. Department of Labor following defendants’ refusal to pay the sums owed under the employ ment agreement.

The complaint sufficiently alleges

that plaintiff engaged in statutorily protected activity and was terminated therefor. However, because plaintiff failed to obtain right-to-sue letters as to defendants Eli Equity, SNA, South land National Holdings, Inc., SNIC, DJRTC, and Medflow Holdings, plain tiff’s REDA claims against such defen dants cannot proceed.

“Tortious Retaliation”

Plaintiff’s claim labeled “Tortious Retaliation” is, in effect, a claim for wrongful discharge. A wrongful dis charge claim applies only in cases of employment at will. Since plaintiff’s employment contract was for a threeyear term, he may not state a claim for wrongful discharge.

UVTA

The complaint alleges that plain tiff’s employment agreement estab lished a right to payment of an annual base salary, severance benefits, and the change of control payment. The complaint further alleges specific facts regarding the transfer of Medflow’s assets to other Lindberg entities, in cluding other defendants, to “hinder, delay, or defraud” plaintiff with the ultimate goal of “mak[ing] any claim, judgment or lien in favor of [plaintiff] against Medflow uncollectible.” The Complaint alleges specific facts re garding cash transfers from Medflow to Medflow Holdings made without adequate compensation.

Thus, the complaint alleges the necessary elements for fraudulent transfer because the complaint alleges (i) plaintiff had a “right to payment” from Medflow under the employment agreement and (ii) defendants trans ferred Medflow assets with “intent to hinder, delay, or defraud” plaintiff. G.S. § 39-23.4(a).

Fraud

Plaintiff bases his fraud claim on statements made by Lindberg, several of which defendants have shown were true when made. However, Lindberg’s 30 January 2015 statement that “we will review” plaintiff’s request for change of control payments supports plaintiff’s fraud claim.

The complaint alleges that on 27 January 2015, three days prior to telling plaintiff he would review the change of control payment request, Lindberg was already preparing to create a new entity to “strip out as sets, people (the ones we want to) and operations” from Medflow. That Lindberg had allegedly already taken steps to drain Medflow of assets while telling plaintiff his request would be reviewed supports an inference that Lindberg’s representation was false, reasonably calculated to deceive, and intended to deceive plaintiff.

UDTPA

While employment matters do not usually satisfy the “in commerce” re quirement of the UDTPA, plaintiff al leges a scheme of fraudulent transfer between multiple companies, includ ing Medflow, Medflow Holdings, and SNIC. The fact that such companies were each indirectly owned by Lind berg is no barrier. The facts alleged with respect to plaintiff’s UVTA claim creates the foundation that satisfies the requirements under the UDTPA.

Motion granted in part, denied in part.

Ehmann v. Medflow, Inc. (Lawyers Weekly No. 020-055-22, 34 pp.) (Mi chael Robinson, J.) Harold Spears and Christopher Raab for plaintiff; Mat thew Leerberg, Troy Shelton, Mat thew Krueger-Andes, Aaron Tobin, Kendal Reed and Jared Pace for de

Municipal

Governmental Immunity – Tort/Negli gence – Wrongful Death – Tree Mainte nance – Insurance

During a storm, a tree fell on a car on a street in the third-party defen dant-town, injuring plaintiff Dianne Ladd and killing her husband. Al though G.S. § 160A-296(a) requires a city “to keep the public streets . . . open for travel and free from unnecessary obstructions,” and even though the Legislature has considered this duty to be one of proprietary rather than governmental function, since the tree was on private property, the statute did not require the town to take pre ventative measures with respect to the tree.

We reverse the trial court’s denial of the town’s motion for summary judg ment.

The town has a tree ordinance that allows it to remove any tree that is “an imminent threat to the public health, safety or welfare. . . .” However, the fact that the town has the authority to make certain decisions does not mean that the town is under an obligation to do so.

Finally, the town has an insurance policy covering tort liability; however, the policy contains a “Preservation of Governmental Immunity” clause: “This insurance applies to the tort li abilities of any insured only to the ex tent that such tort liability is not sub ject to any defense of governmental immunity under North Carolina law.” Because of this clause, the town did not waive its governmental immunity by purchasing this liability insurance.

Estate of Ladd v. Funderburk (Law yers Weekly No. 011-163-22, 8 pp.) (April Wood, J.) Appealed from Union County Superior Court (Jonathan Perry, J.) Steven Bader and Patrick Flanagan for third-party defendant; Duane Jones, Allen Smith and An drew Dandison for third-party plain tiffs. 2022-NCCOA-676

Domestic Relations

Parent & Child – Neglect & Depen dency Adjudication – 5 Minutes Alone

The trial court’s findings establish at most that (1) baby “Dallas’s” moth er had a prior substance abuse prob lem, (2) Dallas was exposed to THC during pregnancy, (3) Dallas was dis charged into the respondent-Father’s care, and (4) Dallas slept in his crib unattended for approximately five minutes while Father left the house. These findings are insufficient to sup port the trial court’s conclusions that Dallas was neglected and dependent.

We reverse the adjudications of ne glect and dependency. We vacate the disposition order.

G.S. § 14-318 makes it a misde meanor to leave a child under eight years old alone while confined in a building or dwelling due to the poten tial risk of exposing the child to fire. We decline to adopt petitioner’s pro posed per se rule that leaving a juve nile under the age of eight in a home unsupervised is per se neglect. G.S. § 7B-101(15) defines neglect without reference to G.S. Chapter 14, other than § 14-43.15 (establishing child trafficking as grounds for neglect). Pe titioner’s proposed rule would result in “neglect” every time a juvenile’s parent steps out of the home to com

plete the most minimal of household tasks, even if the child is left safely sleeping in his crib.

In re D.S. (Lawyers Weekly No. 011-164-22, 31 pp.) (Donna Stroud, C.J.) Appealed from Cumberland County District Court (Luis Oli vera, J.) Jacky Brammer for respon dent; Eric Cottrell for guardian ad litem; Patrick Kuchyt for petitioner. 2022-NCCOA-674

Insurance

CGL – Legionnaires’ Disease – Hot Tubs – Fair Exhibit – Fungi or Bacteria Exclusion – Consumption Exception –First Impression

The North Carolina Division of Pub lic Health traced an outbreak of Le gionnaires’ disease to the defendantinsured’s hot tub display at a regional fair. The commercial general liability insurance policy issued by plaintiff to the hot tub company includes a “Fungi or Bacteria” exclusion, but the exclusion only applies when the bac teria were “on or within a building or structure.” Since the underlying suits brought against the insured do not all allege that the fair patrons were ex posed to Legionella bacteria inside the fair’s Davis Event Center, the Fungi or Bacteria exclusion does not excuse plaintiff from defending its insured.

We affirm the trial court’s denial of plaintiff’s motion for judgment on the pleadings.

The policy also includes a “Con sumption Exception” pursuant to which the Fungi or Bacteria exclusion “does not apply to any ‘fungi’ or bacte ria that are, are on, or are contained in, a good or product intended for bodily consumption.” This court has not yet addressed whether the water within a hot tub is a “good.”

The insured could have displayed its hot tubs without water; however, it used the water – the sight of the swirl ing water, smell of steam, and evapo ration of vapors – as a marketing de vice to attract customers to purchase a hot tub. We are persuaded by the reasoning of Nationwide Mutual Fire Insurance Co. v. Dillard House, Inc., 651 F. Supp. 1367 (N.D. Ga. 2009), to conclude that water is a “good.”

The “bodily consumption” require ment is also satisfied. Webster’s de fines “consumption” as “the utilization of economic goods in the satisfaction of wants. . . .” The water within the hot tubs was intended to satisfy wants which relate to patrons’ bodies. As such, plaintiff has a duty to defend the underlying suits per the terms of the Consumption Exception.

Affirmed.

North Carolina Farm Bureau Mu tual Insurance Co. v. Carpenter (Law yers Weekly No. 011-165-22, 23 pp.) (April Wood, J.) Appealed from Wake County Superior Court (George Col lins, J.) Walter Brock, David Early and William Lipscomb for plaintiff; Christopher Brook, Narendra Ghosh and Bradford Searson for defendants. 2022-NCCOA-677

Attorneys

Tort/Negligence – Legal Malpractice – Real Property – Deed Description –Landscape Easement

The general warranty deed drafted by the plaintiff-client’s Hoke County lawyers to transfer plaintiff’s Parker Farm Land ef

fectively excepted a landscape easement on the property, given that the deed’s legal description included the following language: “Together with and subject to covenants, easements and restrictions of record.” Although the deed’s covenants clause expressly excepted utility easements, since the landscape easement was an easement of record within the chain of title, it was excepted within the deed’s legal description and did not need to also be excepted in the deed’s covenant’s clause.

We affirm summary judgment for defendants.

After learning of the landscape easement, the buyer of the Parker Farm Land sued the plaintiff-client for breach of the warranty deed. Plaintiff hired the defendant-Cumberland County lawyers to represent him and asked that they make a claim against Hoke County lawyers for negligent drafting of the deed. After the statutory deadline had passed and without filing any negligence claims against the Hoke County lawyers, the Cumberland County lawyers withdrew from representing plaintiff, citing an un-

LAWYER

specified non-waivable conflict.

Plaintiff settled the buyer’s lawsuit by reacquiring the property at a higher price than the buyer had paid him. Plaintiff then brought this lawsuit against the Cumberland County lawyers.

However, since the Hoke County lawyers did not commit professional malpractice in drafting the deed, the Cumberland County lawyers had no reason to add the Hoke County lawyers to the action brought by the buyer against plaintiff. Plaintiff has no legal malpractice claim against the Cumberland County lawyers without first showing there would have been a case against the Hoke County lawyers had the Cumberland County lawyers filed in a timely manner.

As the general warranty deed excluded recorded easements and the landscape easement was an easement of record within the chain of title at the time of drafting and recording, defendants did not breach a duty to plaintiff.

Affirmed.

Neeley v. Fields (Lawyers Weekly No. 011-166-22, 8 pp.) (Hunter Murphy, J.) Appealed from Hoke County Superior Court (Jack Hooks, J.) Michael Tadych, High Stevens

and Matthew Vaughn for plaintiff; James Pendergrass and Amy Hunt for defendants. 2022-NCCOA-678

Landlord/Tenant

Summary Ejectment – Retaliatory Eviction Defense – Week-to-Week Tenancy

Even though the defendanttenant contends that the plaintifflandlord initiated eviction proceedings in retaliation for the tenant’s report of and prior testimony concerning housing code violations at the rental premises, since the tenant had a week-to-week lease with no right of renewal, the retaliatory eviction statute, G.S. § 42-37.1, does not provide the tenant with a defense to summary ejectment.

We affirm summary judgment for the landlord.

Even when a prima facie case of retaliatory eviction is successfully pled, G.S. § 42-37.1(c)(2) provides that a landlord may prevail in an action for summary ejectment if “[i] n a case of a tenancy for a definite period of time where the tenant has no option to renew the lease, the tenant holds over after the expira-

tion of the term.”

On 24 July 2019, when the landlord provided the tenant with notice to vacate the premises on or before 8 August 2019, the lease was “terminated at the end of one of the periods by a proper notice by . . . the lessor . . . in accordance with the law[,]” and the tenant had no right to renew. Defendant’s tenancy for a definite period of time—one week— expired on 8 August 2019. Defendant could not, therefore, prevail on a retaliatory eviction defense where he had no option to renew the lease, and he held over after the expiration of the term.

As the material facts pertaining to the terms of the lease and notice to vacate are not in dispute, the trial court’s entry of summary judgment was proper.

Waters v. Pumphrey (Lawyers Weekly No. 011-167-22, 12 pp.) (Jeffery Carpenter, J.) Appealed from Mecklenburg County District Court (Michael Stading, J.) John Woodman and David DiMatteo for plaintiff; Isaac Sturgill, Jonathan Perry, Andrew Eichen and Celia Pistolis for defendant. 2022-NCCOA-688

Criminal Practice

Search & Seizure – Traffic Stop – Plain View – Flashlight Shined into Car

Police officers Hoyle and Stanley stopped defendant after watching his car roll past a stop sign. While Hoyle checked for outstanding war rants, Stanley approached the car and engaged defendant in conversa tion while shining a flashlight into the interior of defendant’s car. While doing so, Stanley spotted a white plastic baggie. Stanley did not con duct a “search” within the meaning of the Fourth Amendment when he lawfully approached defendant’s car and looked inside with a flashlight. Furthermore, Stanley did not con duct a “search” within the meaning of the Fourth Amendment when he observed the plastic baggie in plain view.

We affirm the trial court’s denial of defendant’s motion to suppress.

The trial court found that upon observing the plastic baggie, Stan ley “deduced [it] to be possibly a controlled substance, either crack or powder cocaine.” This finding sup ports the trial court’s conclusion that Stanley was “immediately able to recognize that the plastic baggie and rock-like substance was contraband.”

Because Stanley was in a place where he had a right to be when the baggie was discovered, the baggie was dis covered inadvertently, and Stanley had probable cause to believe that the baggie and its contents were contra band, Stanley was authorized to seize the baggie without a warrant.

State v. Hunter (Lawyers Weekly No. 011-168-22, 9 pp.) (Allegra Col lins, J.) Appealed from Gaston Coun ty Superior Court (Donald Bridges, J.) Caden William Hayes for the state; Daniel Shatz for defendant. 2022-NC COA-683

Criminal Practice

Communicating Threats – Subjective Intent – Jury Instructions

When security guard Christo pher Lewis responded to a call about sounds of a conflict in an apartment, defendant answered the door and threatened to “beat” Lewis, and de fendant was subsequently charged with communicating threats. On the issue of defendant’s specific intent, the trial court instructed the jury that the state “must prove beyond a reasonable doubt that the defendant willfully threatened to physically in jure . . . Christopher Lewis. A threat is any expression of an intent or a deter mination to physically injure another person. A threat is made willfully if it is made intentionally or knowingly.”

Defendant’s proposed additional in struction – “that [defendant] himself specifically intended the statement to be understood as a real threat ex pressing his intention to carry out the actions threatened” – would have been redundant.

We find no error in defendant’s conviction for communicating threats.

Where the magistrate’s order tracked the exact language of G.S. § 14-277.1, which includes the subjec tive component of true threats, the charging document sufficiently as serted facts supporting every element of the criminal offense.

Lewis testified that defendant was “a foot or two” away from him when

defendant “got in [Lewis’s] face ag gressively and he said that would beat [Lewis’s] little ass.” Lewis fur ther testified that he took defendant’s statement as a threat and felt like defendant was going to carry out that threat, such that Lewis felt the need to call 911. Additionally, a witness who lived in a neighboring apartment testified that defendant answered the door by asking Lewis “what the F” he wanted and that when Lewis arrived, defendant was “fussing and cussing.” Viewed in the light most favorable to the state, this evidence is such rel evant evidence as a reasonable mind might accept as adequate to support a conclusion that defendant possessed specific intent in making the threat against Lewis. No error.

State v. Guice (Lawyers Weekly No. 011-169-22, 12 pp.) (Jefferson Griffin, J.) Appealed from Buncombe Coun ty Superior Court (Jesse Caldwell, J.) Francisco Benzoni for the state; Kerri Sigler for defendant. 2022-NC COA-682

Criminal Practice

Second-Degree Murder – Defense of Another – Expert & Lay Testimony

During an altercation at an arcade, the victim was on top of defendant’s friend, choking her; defendant drew her concealed weapon and shot the victim twice. Although defendant sought to prove that her concealedcarry class had taught her to keep shooting “until there’s no longer a threat,” her proffered expert was a law enforcement officer who was unfamiliar with civilian concealedcarry classes. Where close to half of the jurors had a concealed carry per mit, defendant’s expert did not have enough expertise to be in a better position than the trier of fact to have an opinion on the subject of civilians’ use-of-force training. The trial court did not err in excluding the expert’s testimony.

We find no error in defendant’s conviction for second-degree murder.

No specialized knowledge was re quired to determine the reasonable ness of defendant’s actions. The jury had the ability and opportunity to consider the same materials as de fendant’s expert. Accordingly, the testimony of the expert would not have assisted the trier of fact to un derstand the evidence or to determine a fact in issue, as required by N.C. R. Evid. 702(a), and therefore was not relevant. Instead, his testimony would have impermissibly invited the jury to substitute his judgment of the meaning of the facts of the case for its own.

Although COVID-19 protocols re quired social distancing of the jurors, the trial court went to great lengths to ensure that the jurors could view the arcade’s surveillance video recording. None of the jurors expressed any dif ficulty seeing the video, and the trial court granted the jury’s request dur ing deliberations to view the record ing again, once at half-speed and again at full speed. The trial court’s astute actions precluded the need for plaintiff’s expert to narrate the events of the video to the jury.

The trial court also did not err in allowing the girlfriend of the victim to testify that, at the time of the shoot ing, she did not feel that anyone’s life was in danger or that anyone was in imminent danger of serious bodily harm. The girlfriend’s testimony was helpful to the jury; as a participant in

the conflict, the girlfriend was unique ly qualified to speak to the overall level of danger at the arcade in the moments leading up to the shooting.

In any event, the trial court admit ted without objection substantially similar testimony from arcade em ployees.

No error.

State v. Mason (Lawyers Weekly No. 011-170-22, 24 pp.) (Valerie Zach ary, J.) Appealed from Rowan County Superior Court (Lori Hamilton, J.) Kimberly Callahan for the state; Mar ilyn Ozer for defendant. 2022-NC COA-684

Criminal Practice

SBM – Jurisdiction – Valid Indict ments

The indictments charging defen dant with rape and statutory sexual offense identify the victim with great er precision than required by State v. McKoy, 196 N.C. App. 652, 675 S.E.2d 409, disc. rev. denied, 363 N.C. 586, 683 S.E.2d 215 (2009), or G.S. §§ 15144.1 and -144.2, the statutes autho rizing the use of short-form indict ments to charge rape and statutory sexual offense, because they include the victim’s date of birth as well as the victim’s initials. McKoy controls here and we hold that these indict ments are facially valid.

This case presents three questions: first, are the indictments facially valid where they identified the victim using the victim’s initials and date of birth? Defendant argues in his brief to our court that they are not. We hold that they are. The panel is unanimous in that holding.

The second question presented is whether the trial court’s 2020 satel lite-based monitoring (SBM) orders are properly before the court. A ma jority of the court agrees that they are, upon issuance of a writ of certio rari per opinion, in the exercise of our discretion.

The third is whether the 2020 orders violated the Fourth Amend ment. I would hold that they did not, under State v. Hilton, 378 N.C. 692, 2021-NCSC-115, 862 S.E.2d 806, and our court’s recent decisions interpret ing and applying Hilton in State v. Carter, 2022-NCCOA-262, and State v. Anthony, 2022-NCCOA-414—de cisions we are bound to follow as an intermediate appellate court that cannot overrule itself. Neither of my colleagues would reach the issue of whether the orders violated the Fourth Amendment.

Because (1) a majority of the court issues a writ of certiorari to review the 2020 SBM orders per opinion; (2) In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989), State v. Gon zalez, 263 N.C. App. 527, 823 S.E.2d 886 (2019), and Upchurch v. Harp Builders, Inc., 2022-NCCOA-301, mean that our court’s interpretation and application of Hilton in Carter and Anthony control on the issue of whether the 2020 SBM orders vio lated defendant’s rights under the Fourth Amendment—even over the Supreme Court’s decision in Hilton itself; (3) Carter holds that “[o]ur Su preme Court’s decision in Hilton con cluded that for aggravated offenders, [such as Defendant,] the imposition of lifetime SBM causes only a limited intrusion into [a] diminished privacy expectation” and therefore does not violate the Fourth Amendment; and (4) review of the reasonableness of an SBM order is de novo, I would hold that defendant’s Fourth Amendment

rights were not violated by the 2020 SBM orders.

The history of N.C. R. App. P. 21 suggests that State v. Ricks, 378 N.C. 737, 2021-NCSC-116, was wrongly decided. Ricks is understood to hold not just that the jurisdictional ques tion is not analytically prior to the merits of the appeal in a case where an SBM order has not been properly appealed, but it is also understood to hold that the jurisdictional question is not analytically prior to the merits of the appeal in all cases. And that understanding has created condi tions favorable to the proliferation of a shadow docket – with all the atten dant problems of such a docket – and a shadow docket at our court has pro liferated because of Ricks

The only portion of this opinion with precedential value is the court’s holding related to the facial validity of the indictments.

I would affirm the 2020 SBM or ders. They are left undisturbed.

Concurrence

(Tyson, J.) We all agree Defen dant’s indictments are sufficient and valid to support his underlying con victions. Because Defendant failed to properly preserve this issue because Defendant failed to object on any basis, constitutional or otherwise, to the imposition of lifetime SBM, did not appeal, waived appellate review, and has shown no merit or prejudice to warrant the issuance of a writ of certiorari (“PWC”), I would deny the PWC and to dismiss the petition.

Dissent

(Murphy, J.) I respectfully concur with Judge Jackson in part as to the validity of the indictments, concur in result only in part as to the issuance of a petition for writ of certiorari to re view the 2020 SBM Orders, and dis sent in part as to the validity of the 2020 SBM Orders.

I have found nothing in the record indicating the trial court vacated the 2012 SBM Orders, and there is noth ing to suggest either party presented any arguments to the trial court re lated to the validity of the 2012 SBM orders. Since the 2012 SBM orders were still in effect at the time of de fendant’s resentencing, I conclude the trial court’s purported SBM or ders entered at the 2020 resentencing hearing were entered without juris diction.

I would vacate the trial court’s 2020 SBM orders and emphasize that defendant is still required to comply with the 2012 SBM orders.

Since the 2020 SBM orders should be vacated, defendant’s challenges on appeal based upon the entry of the 2020 SBM orders and the ineffec tive assistance of counsel regarding the 2020 SBM orders are moot, and I would dismiss this portion of defen dant’s appeal. Furthermore, in my discretion, I decline to invoke Rule 2 or treat defendant’s appeal as a peti tion for writ of certiorari to review de fendant’s 2012 SBM orders.

State v. Perkins (Lawyers Weekly No. 011-171-22, 70 pp.) (Darren Jack son, J.) (John Tyson, J., concurring in the result only) (Hunter Murphy, J., concurring in part, concurring in result only in part, and dissenting in part) Appealed from Wake County Superior Court (Paul Ridgeway, J.) Amy Kunstling Irene and Jonathan Babb for the state; Jason Christopher Yoder for defendant. 2022-NCCOA-38

Criminal Practice

SBM – Constitutional – Reasonable ness

Based upon defendant’s conviction of sex offense with a child, the trial court’s order that he submit to sat ellite-based monitoring (SBM) for 30 years is not a violation of defendant’s rights under the Fourth Amend ment. The state has legitimate and demonstrated interests in protecting the public and children by prevent ing future sex crimes and solving those that do occur. That interest is not outweighed by SBM’s intrusion into defendant’s diminished privacy expectations as an adult-child offend er. Following our Supreme Court’s most recent precedents in State v. Hilton, 378 N.C. 692, 2021-NCSC115, State v. Strudwick, 379 N.C. 94, 2021-NCSC-127, and based on recent legislative amendments effectively shortening defendant’s participation in SBM to ten years, we cannot agree with defendant’s argument that, con sidering the totality of the circum stances, his constitutional rights have been violated.

We affirm the trial court’s SBM or der.

State v. Griffin (Lawyers Weekly No. 011-172-22, 18 pp.) (Lucy Inman, J.) Appealed from Craven County Superior Court (Benjamin Alford, J.) On remand from the N.C. Supreme Court. Joseph Finarelli for the state; James Grant for defendant. 2022-NC COA-681

Criminal Practice

Search & Seizure – Traffic Stop –Blocked Exit & Blue Lights

Late at night, on an otherwise de serted road, a deputy in a marked pa trol vehicle saw a white car pull into a driveway that had a locked gate. The deputy drove part-way past the drive way, reversed, pulled into the drive way – essentially blocking any exit by the white car – and activated her blue lights. At that point, the driver of the white car was seized within the meaning of the Fourth Amend ment. Since the deputy admitted that she had seen no traffic violations, the seizure was made without reasonable suspicion.

We reverse the trial court’s denial of defendant’s motion to suppress the evidence gathered as a result of the traffic stop.

The state implicitly argues that this defendant was free to try and back her car out from where she was stopped, either while the deputy ini tially sat in her car running defen dant’s license plate or even while the deputy walked up to defendant’s window. Given that this incident took place late at night in a rural area with no lighting, we do not know what would have happened if defendant had reversed her car toward the dep uty or the patrol vehicle in an attempt to leave the scene. Perhaps defendant might have hit the deputy’s patrol ve hicle. Or worse, defendant might have accidentally struck the deputy when she was approaching defendant’s car door. Perhaps any attempt by defen dant to leave would have made the deputy feel threatened, leading her to fire her sidearm. Either way, what started as a simple traffic stop could have escalated to something much worse. Defendant made the only safe

and reasonable choice available by re maining in her car at the scene. The state’s argument is not only illogical, but it is also potentially dangerous.

When analyzed from the view of a reasonable person in defendant’s po sition, any reasonable person would have realized that they were the tar get of police suspicion and were like wise not free to drive off. To hold oth erwise could instigate the escalation of encounters between the police and drivers in North Carolina and lead to far worse results for those involved.

Reversed and remanded.

State v. Eagle (Lawyers Weekly No. 011-173-22, 22 pp.) (Darren Jack son, J.) Appealed from Orange Coun ty Superior Court (Allen Baddour, J.) Liliana Lopez for the state; James Rainsford and Cyrus Griswold for de fendant. 2022-NCCOA-680

Criminal Practice

DWI – Expert Testimony – SBI Review er – Impairment Evidence

Even though the agent who tested defendant’s blood left the SBI before defendant’s trial, the agent in charge of administrative and technical re view of the lab report was qualified to testify about the results of the blood test.

We find no prejudicial error in de fendant’s conviction of driving while impaired.

We note that, because the evidence was admissible as the basis of the expert’s witness’s opinion, but not as substantive evidence, defendant was entitled upon request to an in struction limiting its consideration to its proper scope. N.C. R. Evid. 105. However, defendant made only a gen eral objection and did not request a limiting instruction. The admission of evidence which is competent for a restricted purpose will not be held er ror in the absence of a request by the defendant for limiting instructions.

At trial, the arresting officer testi fied that he had successfully complet ed training in administering HGN tests, and that he had administered an HGN test to defendant. When asked the significance of the HGN test results, the officer testified, over defendant’s objection, “There’s a prob ability that he’s going to be a .08 or higher, 80 percent according to the test that was done.” The officer’s tes timony as to defendant’s specific al cohol concentration level relating to the HGN test violated N.C. R. Evid. 702(a1) and was erroneously admit ted into evidence.

Nevertheless, defendant has not shown prejudice given the other, overwhelming evidence against him, including the officer’s observations during the arrest and the blood test results showing a blood alcohol con centration of 0.27.

State v. Watson (Lawyers Week ly No. 011-174-22, 13 pp.) (Allegra Collins, J.) Appealed from Robe son County Superior Court (James Bell, J.) Robert Broughton for the state; Daniel Gibson for defendant. 2022-NCCOA-687

Criminal Practice

Marijuana Sale – Defendant’s Age

An essential element of possession with intent to sell or deliver within 1,000 feet of a school is that the de fendant is over 21 years of age. G.S. § 90-95(a)(1). Even though defendant argues that the rule against hearsay

should have barred the arresting offi cer from reading defendant’s age from the search warrant, since the officer also testified that he had known de fendant for around 30 years, defen dant has not shown plain error.

We find no reversible error in de fendant’s convictions for possession with intent to sell or deliver marijua na within 1,000 feet of a school and possession of marijuana parapherna lia.

Given defendant’s recorded discus sions concerning the price of the mar ijuana he was selling, as well as the officer’s testimony about defendant’s practices and paraphernalia being consistent with the sale of marijuana and the officer’s identification of the substance in question as marijuana, the state introduced sufficient evi dence that the green leafy substance seized was marijuana, despite the General Assembly’s legalization of hemp.

State v. Booth (Lawyers Weekly No. 011-175-22, 15 pp.) (Allegra Col lins, J.) Appealed from Beaufort County Superior Court (Joshua Wil ley, J.) Zach Padget for the state; Jarvis John Edgerton for defendant. 2022-NCCOA-679

Criminal Practice

Witness Intimidation – Evidence –Jailhouse Phone Call – Admission

Even if a police officer lacked suf ficient familiarity with defendant’s voice to be able to identify it on a re corded telephone call, this did not af fect the admissibility of a jailhouse call when the sheriff’s records un equivocally identified defendant as the caller.

We find no error in defendant’s convictions for intimidating or inter fering with witnesses and attaining habitual felon status.

Concurrence (Tyson, J.) Defendant has not shown any basis or prejudice to re verse the trial court’s judgment. The trial court’s judgment entered herein without a jury trial and after a bench trial is properly affirmed.

State v. Steele (Lawyers Weekly No. 011-176-22, 12 pp.) (John Arro wood, J.) (John Tyson, J., concurring in the result) Appealed from Forsyth County Superior Court (Susan Bray, J.) Thomas Campbell for the state; Drew Nelson for defendant. 2022-NC COA-686

Constitutional

As Applied vs. Facial Challenge –Schools & School Boards – Scholar ships – Religious Schools

Plaintiffs challenge a statutory pro gram that allows students to receive scholarships to non-public schools, including religious schools. Although plaintiffs contend they are making an as-applied challenge to the consti tutionality of the program, plaintiffs do not allege that they have been de nied scholarships, and the relief they request would require rewriting the statutes or permanently enjoining the program from selecting recipients, disbursing funds, or receiving further appropriations. Consequently, plain tiffs are making a facial challenge to the program.

We reverse the trial court’s denial of defendants’ motion to transfer this case to a three-judge panel.

By arguing the program is uncon stitutional as applied because reli

gious schools may receive funding, plaintiffs are actually attacking the constitutionality of G.S. §§ 115C-5621 to -562.8. Although plaintiff pepper their complaint with the words “as implemented,” they never plead facts necessary to support or demonstrate an as-applied challenge.

None of the plaintiffs allege they applied for a scholarship under the program, were unconstitutionally de nied enrollment into the program, or applied to an eligible school under the program. Plaintiffs fail to allege the pertinent facts relating to their par ticular circumstances necessary to as sert an as-applied challenge. Accord ingly, because no plaintiff has applied for a scholarship under the terms of the program, it is unclear what facts, if any, exist to support plaintiffs’ in dividual claims that the program as applied to him or her is unconstitu tional.

Plaintiffs have been unable to identify any conceivable remedy for their claims that would not require ei ther rewriting the statute or imposing sweeping court supervision on schol arship approvals by regulators. These remedies are unmistakable markers of a facial challenge.

The trial court has no subject mat ter jurisdiction if this is a facial chal lenge. The court system cannot wait for the case to be over to make that jurisdictional assessment. It must be made at the beginning of the case.

Reversed and remanded.

Dissent

(Hampson, J.) By failing to allow this litigation to proceed in normal fashion in our trial courts, the ma jority acts contrary to the statutory scheme which requires the superior court to make the determination of whether and when it is necessary to transfer the matter to a three-judge panel. In doing so, contrary to our court’s precedent, the majority forces plaintiffs to make a facial constitu tional challenge that plaintiffs have not plead and expressly disavow. Moreover, it does so based on the re lief it erroneously assumes would be imposed should plaintiffs eventually prevail.

Even if the trial court’s order re jecting transfer of this case to a threejudge panel at this stage of the litiga tion could be deemed one involving a matter of substance or a material right, it does not involve any right that would be lost absent an immedi ate appeal.

Kelly v. State (Lawyers Weekly No. 011-177-22, 37 pp.) (April Wood, J.) (Richard Dietz, J., concurring in re sult without separate opinion) (Toby Hampson, J., dissenting) Appealed from Wake County Superior Court (Bryan Collins, J.) Burton Craige, Na rendra Ghosh, Trisha Pande and Paul Smith for plaintiffs; Tamika Hender son and Laura McHenry for the state; Matthew Tilley, Russ Ferguson, Jef frey Jennings, John Branch, Andrew Brown, Ari Bargil, Michael Bindas, Joseph Gray and Marie Miller for in tervenors. 2022 NCCOA-675

Civil Practice

Personal Jurisdiction – S.C. Lender – N.C. Borrower – Car Title Loan –Contract

Even though the parties’ loan pa perwork was signed in South Caro lina, since the South Carolina defen dant-lender (1) advertised its car title

loan services in North Carolina, (2) entered into a loan agreement with a North Carolina resident, (3) secured that loan with collateral which is reg istered and located in North Carolina, (4) placed a lien on property located in North Carolina through the North Carolina Division of Motor Vehicles, and (5) entered into North Carolina to take possession of the collateral, defendant must have expected to be subject to the privileges and protec tions of North Carolina law.

We affirm the trial court’s denial of defendant’s motions to dismiss for lack of personal jurisdiction and for failure to state a claim.

Defendant moved to dismiss under N.C. R. Civ. P. 12(b)(6) on the basis of a choice-of-law provision in the loan agreement. The issue of whether the choice-of-law provision is controlling and whether that provision precludes plaintiff from bringing North Caro lina statutory claims relating to the loan agreement is beyond the scope of a Rule 12(b)(6) motion and should instead be raised in a motion for sum mary judgment.

Wallace v. AutoMoney, Inc. (Law yers Weekly No. 012-323-22, 17 pp.) (Fred Gore, J.) Appealed from Rich mond County Superior Court (Dawn Layton, J.) James Faucher and Jef frey Peraldo for plaintiff; Michael Montecalvo and Scott Anderson for defendant. 2022-NCCOA-514

Civil Practice

Interlocutory Appeals – One Dismiss al – Remaining Defendants – Defama tion

In this defamation case, which several participants in a group chat named plaintiff as the sexual assail ant of another participant. Plaintiff appeals the trial court’s dismissal of his claims against defendant Emehel, and he asserts that his claims against the remaining defendants have been resolved. However, the record does not contain the disposition of plain tiff’s claims against the remaining defendants, and we cannot rely on plaintiff’s assertion regarding his oth er claims.

Plaintiff’s appeal is dismissed.

Plaintiff also contends interlocu tory review would be appropriate pur suant to G.S. §§ 1-277 and 7A-27(b)(3) (a) because the trial court’s order af fects his substantial right to avoid the possibility of two trials on the same is sues. This contention directly contra dicts plaintiff’s representation to this court that all of his claims against the other defendants have been resolved. Taking his assertion at face value, it would not be possible for two trials to proceed on the same issues.

Searcy v. Thornton (Lawyers Weekly No. 012-324-22, 6 pp.) (Lucy Inman, J.) Appealed from Durham County Superior Court (Orlando Hudson, J.) Annabelle Chambers and Jake Snider for plaintiff; Johneric Emehel and Terry Sherrill for defen dant. 2022-NCCOA-508

Civil Practice

Interlocutory Appeals – One Dis missal – Remaining Defendant – Golf Driving Range

Although the trial court dis missed plaintiff’s claim against the defendant-golfer whose golf ball struck plaintiff and blinded him in

one eye, it appears from the record that plaintiff’s claim against the golf club owner remains pending. Since the trial court did not certify that there is no just reason for de laying this appeal, and since plain tiff does not argue the trial court’s summary judgment order deprived him of a substantial right, this ap peal is premature.

Appeal dismissed.

Moseley v. Hendricks (Lawyers Weekly No. 012-325-22, 8 pp.) (Jef fery Carpenter, J.) Appealed from Wilson County Superior Court (Wil liam Wolfe, J.) Ben Eagles and Kurt Schmidt for plaintiff; Skylar Gal lagher, Craig Tierney and Andrew Vanore for defendant. 2022-NC COA-507

Criminal Practice

Second-Degree Murder & Felony Fleeing – Evidence – Prior Convic tions

In post-arrest statements to po lice, defendant admitted not only to prior convictions, but also to drink ing and driving, fleeing from police in a motor vehicle, and wrecking the vehicle with the victim inside. In addition, officers testified about the initial attempt to stop defen dant for speeding, defendant’s eva sion attempts and his top speed of 105 mph, loss of control and crash, beer bottles inside and around the vehicle, and the strong odor of al cohol coming from defendant. The victim’s cousin testified that she was on the phone with the victim during the high-speed chase, and she overheard the victim tell de fendant to “pull over” and “just stop.” Given the overwhelming evi dence of defendant’s guilt, the trial court did not plainly err by admit ting the portions of defendant’s statements regarding his prior convictions.

We find no plain error in defen dant’s convictions for second-de gree murder and felony fleeing to elude arrest with a motor vehicle. We dismiss defendant’s claim of ineffective assistance of counsel without prejudice to his right to file a motion for appropriate relief.

State v. Martin (Lawyers Week ly No. 012-326-22, 14 pp.) (April Wood, J.) Appealed from Rocking ham County Superior Court (Ed win Wilson, J.) Kathryne Hathcock and Christopher Brooks for the state; Warren Hynson for defen dant. 2022-NCCOA-512

Criminal Practice

Jury & Jurors – Batson Challenge – Peremptory Challenges – Nondis criminatory Reasons

The state said it peremptorily ex cused two (of three possible) African American jurors because, when the state asked each prospective juror if they had been convicted of, charged with or had known any family mem ber or friend who had been convict ed of or charged with a crime, (1) Af rican American juror C.C. failed to disclose a pending insurance fraud charge against her and (2) African American juror M.F. responded that her son had continuously sto len from her but she “let it go” until she finally pressed charges because he stole her vehicle, thus indicating she might hesitate to hold others accountable for their crimes. Given

these nondiscriminatory reasons for excusing C.C. and M.F., and consid ering defendant’s failure to offer a surrebuttal to challenge the state’s explanations, we uphold the trial court’s rejection of defendant’s chal lenge under Batson v. Kentucky, 476 U.S. 79 (1986).

We find no error in defendant’s convictions of first-degree murder, conspiracy and attempt to commit armed robbery, and possession of a firearm by a convicted felon.

Even though the trial court said defendant had failed to show the state’s peremptory challenges were exercised “on the basis of” race rath er than saying he had failed to show race was “a significant factor” in the state’s exercise of the peremptory challenges, the trial court neverthe less analyzed the totality of circum stances required under Batson and determined that discrimination was not a significant factor.

State v. Johnson (Lawyers Week ly No. 012-327-22, 12 pp.) (Jefferson Griffin, J.) Appealed from Craven County Superior Court (Joshua Wil ley, J.) Michael Henry for the state; Lisa Miles for defendant. 2022-NC COA-510

Criminal Practice

Death by Vehicle – Flight Instruction – Closing Argument – Defendant’s ‘Game’

The state’s evidence tended to show that defendant (1) struck a bicyclist with her vehicle; (2) continued driv ing for roughly two miles with a smashed windshield, a missing tire, and a bicycle tire wedged under her vehicle, before stopping in a parking lot, (3) switched seats with her sis ter, and (4) initially told police that her sister had been driving. This evi dence supports the theory that de fendant not only left the scene of the crash, but also took steps to avoid apprehension. The trial court did not err in instructing the jury on flight.

We find no error in defendant’s convictions of felony death by ve hicle and misdemeanor hit and run. Remanded for correction of a clerical error.

The trial court did not err by fail ing to intervene in the state’s closing argument, in which the prosecutor argued that defendant was playing a “game” by lying to and hiding from police after striking and killing the victim. The record provides clear evi dence of defendant’s “game,” such as body cam footage that captures (1) defendant’s admission of her and her sister’s plan to lie to officers about who was driving and (2) defendant’s subsequent confession that she was in fact driving. Thus, the state’s ar gument and theory that defendant was playing a “game” relied upon reasonable inferences from the law and the facts in evidence.

State v. Juarez (Lawyers Weekly No. 012-328-22, 11 pp.) (Jefferson Griffin, J.) Appealed from Mecklen burg County Superior Court (Casey Viser, J.) Christopher Brooks for the state; Drew Nelson for defendant. 2022-NCCOA-511

Domestic Relations

Parent & Child – Custody Modifica tion – Relocation to Japan – Insuffi cient Findings

When the Marines transferred the plaintiff-mother to Japan, she

moved for a modification of cus tody. The trial court found that relocation “will provide the minor child with numerous cultural op portunities that are likely to en rich her life”; however, the court did not provide any detail about how the minor child’s life would be improved. The trial court did not engage in any comparison be tween plaintiff’s residence in Ja pan and defendant’s residence in Virginia. The trial court did not address the motives of plaintiff in seeking the move, the integrity of defendant in resisting the reloca tion, or the likelihood that plain tiff would comply with visitation orders. The only findings address ing visitation provided that plain tiff’s relocation made “the current visitation schedule not feasible” and that defendant had “a flexible work schedule” and “significant vacation time which is conducive to the creation of a long distant [sic] visitation schedule.” In sum, the trial court barely addressed the factors set out in RamirezBarker v. Barker , 107 N.C. App. 71, 418 S.E.2d 675 (1992), yet concluded that the advantages of relocation outweighed the disad vantages. The trial court’s find ings are inadequate.

We vacate the trial court’s or der, which modified custody and allowed plaintiff to relocate to Ja pan with the parties’ child. We re mand for additional findings.

Sturdifen v. Brown (Lawyers Weekly No. 012-329-22, 12 pp.) (John Arrowood, J.) Appealed from Carteret County District Court (Walter Mills, J.) No brief filed for plaintiff; Elizabeth Ste phenson for defendant. 2022-NC COA-513.

Civil Practice

Pleadings – Answer Amendment –Delay – Unfair Trade Practices Coun terclaim

In a case arising from a post-fire clean-up, the defendant-homeown er’s motion to amend his answer came six months after he filed his initial answer, nine months after the plaintiff-remediation company filed its complaint, after a lengthy period of discovery and after more than enough time to examine the 20-page invoice that is the source of most of defendant’s proposed counterclaims. Although the trial court did not expressly state that it denied defendant’s motion to amend because the motion would have caused an undue delay in the trial, its reasoning is apparent from the order, which lists the rel evant dates in the case.

We affirm the trial court’s deni al of defendant’s motion to amend.

Allowing defendant to add an unfair trade practices counter claim would expose plaintiff to potential treble damages, require plaintiff to engage in additional discovery and preparation, and greatly increase the stakes of the suit. As such, allowing defendant’s motion to amend would have ma terially prejudiced plaintiff.

Clean N Dry, Inc. v. Edwards (Lawyers Weekly No. 012-33022, 11 pp.) (Darren Jackson, J.) Appealed from Johnston County Superior Court (Thomas Lock, J.) George Mast for plaintiff; Luther Starling and Kyle Lewis for defen dant. 2022-NCCOA-531