North Carolina Lawyers Weekly November 21, 2022

A SHIFT IN STRATEGY

N.C. Bar Center hosts Justice Fund, Liberty Garden dedication ceremony

The North Carolina Bar Foundation (NCBF) celebrated the establishment of four new NCBF Endowment Justice Funds in a dedication ceremony on Wednesday, October 19, at the N.C. Bar Center in Cary. The NCBF also dedicated two new Liberty Garden Benches and 10 new Liberty Garden Stone Pavers.

Justice Funds were dedicated in honor of Joseph B. Cheshire V, George B. Mast and the late Rudy L. Ogburn. The NCBF Endowment’s first Anonymous Justice Fund was also dedicated. A Liberty Garden Bench was also dedicated in memory of Rudy L. Ogburn, with an additional new bench dedicated in memory of Chief Justice Emery Denny and Wallace Ashley Jr.

Law Offices of James Scott Farrin moves HQ, realigns

One of the state’s largest plaintiff’s firms, The Law Offices of James Scott Farrin, is moving its Durham headquarters — 1,500 feet east.

JSF is departing the American Tobacco Campus’ Diamond View II where, since 2009, it occupied approximately 56,306 square feet, to the newly constructed 555 Mangum St. on the other side of the Durham Bulls Athletic Park, according to a news release from the firm.

In addition to a fresh space on the 8th floor of the 2021 Triangle Business Journal SPACE Awards winner for Top Office Development, JSF is also deploying a well-researched and strategically implemented strategy in their office design and

layout to increase productivity, as well as client and employee recruitment and satisfaction, the release stated.

Notably, the firm’s new office square footage (24,190 sf) represents an intentional reduction of 57%. The firm is allowing employees the opportunity to curate their own office strategy with a mix of all work from home, all office, or a hybrid of the two.

The firm is also planning to expand its footprint in Raleigh from its current 6,203 sf to 16,336 sf (163% increase). This will give Triangle-based employees another office option.

“Like many companies during

the pandemic, we learned out of necessity that different employees thrive in different work environments,” James S. Farrin, president and CEO, said in the release. “While some employees fully embrace an office environment surrounded by colleagues, others do their best work when they are in the comfort of their own home office. We want to ensure our clients are always receiving the absolute best from each of our employees so we are adopting a model of choice.”

While there may be variations in office locations, two things remain constant for the firm: a commitment

“The funds that we are dedicating today enhance the Foundation’s ability to mobilize members of the North Carolina Bar Association to serve the people of North Carolina through legal services, pro bono, civic education, and professionalism-focused programs,” said NCBA/NCBF Executive Director Jason Hensley. “These Funds bolster the Foundation’s Endowment, allowing us to award more annual grants to legal organizations and programs across the state whose work furthers the Foundation’s mission, vision and values.”

“In 1960, the North Carolina Bar Foundation was established as the philanthropic arm of the Association,” added NCBA/NCBF President Clayton Morgan. “Today, the work of the Foundation is driven by its mission to unite the talent and generosity of the profession to be a power of

INSIDE: Paralegal News and Unsung Heroes

We have lots of special content for you inside today’s North Carolina Lawyers Weekly.

In the November edition of Carolina Paralegal News, you’ll meet Khovaja Samir Seddiqi, who knows what hope and resilience feel like when your life is suddenly defined by grief and uncertainty.

He lost everything when the Taliban overthrew the Afghan government amidst the United States military withdrawal in August of 2021. Today, he is a paralegal in the Greensboro office of Church World Service, a global organization that helps meet the immediate needs of refugees from dangerous zones seeking asylum in the United States.

Teri Saylor has this inspiring story.

You’ll also meet Jasmine Williams, senior parale-

gal at Jeffries Law Firm in Orangeburg, and Traci B. Wolfe, a paralegal at Burnette Shutt and McDaniel, and is in her second year as president of the Legal Staff Professionals of the Midlands.

Also inside this edition of North Carolina Lawyers Weekly is the return of Unsung Heroes, a celebration of champions who do the behind-the-scenes work that makes law firms thrive.

As always, thanks for reading.

Got a story idea for North Carolina Lawyers Weekly? Know an attorney doing innovative things? Send along an email. Contact info is below.

Jason Thomas is the interim editor of South Carolina Lawyers Weekly. Email him at jthomas@scbiznews.com.

The Law Offices of James Scott Farrin has developed a new strategy to increase productivity and recruitment efforts. (Photo/Provided)

The close-knit staff at Church World Service in Greensboro gathers at the end of the workday. From left: Said Zeyar, Jelena Milisav, Iva Panayotova, Samir Seddiqi, Noman Farid, and Elizabeth DeFrance. Photo by Teri Saylor

BAR DISCIPLINE ROUNDUP

BAR DISCIPLINE ROUNDUP

Attorney: Lloyd Kelso

Location: Wake County

Bar membership: Since 1977

Disciplinary action: 1 year suspension

Background: Defendant was found guilty of multiple offenses and engaged in a pattern of misconduct. At the time of this conduct, the defendant knew or should have known that his actions could harm his clients.

In Nov. 2019, the defendant was hired to represent H.S. in a domestic case which included child support and custody. During their professional involvement, the defendant began a romantic and sexual relationship with his client. By continuing to represent H.S. in her domestic case while also pursuing a romantic relationship with her, the defendant represented a client under circumstances where the representation

might be limited by his personal interests in violation of Rule 1.7(a)(2). The defendant provided H.S. money and allowed her to use his credit card. By providing financial assistance to a client, the defendant is in violation of Rule 1.8(e).

The defendant was also found guilty of conduct prejudicial to the administration of justice. By overcharging clients, altering signed settlement statement without client’s approval the defendant violated Rule 8.4(d). The defendant failed to properly deposit, disburse, and distribute entrusted funds in violation of Rule l.152(a) and (c). The defendant was found guilty of other misconduct regarding the treatment of client funds, violating rules 1.59(a), 1.15-2(k), 1.15-2(n), 1.15-3(e),1.153(b)(1), 1.15-3(b)(5), 1.15-3(i), and 5.3(a) and (b).

Attorney: Willie Brooks

Location: Wake County

Bar membership: Since 1982 Disciplinary action: 4-year suspension

Background: The defendant has been found guilty of failing to conduct monthly reconciliations of his trust account following a random audit to Brooks’ trust account by the North Carolina State Bar on March 6, 2019.

In addition to finding Brooks had failed to conduct the required monthly and quarterly trust account reconciliations, the audit showed that, (1) Brooks disbursed more funds from his trust account for clients than he had in the trust account for that client, (2) Brooks’ client ledgers contained dates that did not

reconcile with bank dates of deposit, (3) Brooks failed to sign, date, and maintain reconciliation reports, and (4) Brooks failed to maintain required records for his trust account.

These acts of professional misconduct are in violation of Rule 1. 15-3(d)(l), Rule l.15-3(d)(2), Rule l.153(d)(3), Rule l.15-3(b)(5), Rule 1.15-2(a), Rule l. 15-2(a), (k), and (n), Rule 1.8(e), Rule l.15-2(a) and (b).

Brooks also failed to timely and fully respond to the inquiries of the State Bar and the production requests of the State Bar made by inquiry and by subpoena, and therefore knowingly failed to respond to a lawful demand for information from a disciplinary matter in violation of Rule 8.1(b).

Triangle’s largest law firm adds 7 attorneys

Smith Anderson, the largest business and litigation law firm in the Triangle, has announced that it has welcomed seven attorneys who bring a wide breadth of experience to the firm’s banking and finance, real estate development, intellec tual property, litigation, mergers and acquisitions, employment and health care practices: Amy Crout, Joseph Fields, Hope Garber, John Gibson, Sam Hipps, Paula McDon ald and Tommy Postek.

Crout advises clients on a wide range of commercial real estate de velopment issues, with a focus on land use and zoning. Prior to join ing Smith Anderson, Crout worked for an international law firm rep resenting real estate developers, end users and local governments in land use and commercial real estate matters, as well as focus ing on civil litigation, North Caro lina constitutional law, business formation and appeals. She also served as the legislative liaison for the North Carolina Industrial Commission and as a law clerk for the North Carolina Court of Ap peals.

Fields advises buyers and sell ers on mergers and acquisitions, divestitures and joint ventures in a wide range of industries. He also advises companies and nonprofit organizations on corporate gov ernance, business and real estate transactions and nonprofit law matters. Prior to joining Smith An derson, Fields worked for a North Carolina law firm practicing corpo

rate law. Fields is a graduate of Uni versity of North Carolina School of Law.

Garber is a member of Smith Anderson’s Litiga tion practice. Be fore joining Smith Anderson, Garber practiced in the Litigation group of a Northeast law firm, focusing on class action defense and complex com mercial disputes. She is a graduate of Duke Univer sity School of Law. While at Duke, Hope was recog nized by the North Carolina Bar Asso ciation for her Pro Bono service. Gar ber also has served as a law clerk to the Honorable Don R. Willett, U.S. Court of Appeals for the Fifth Circuit and to the Honorable Donald W. Molloy, U.S. District Court for the District of Montana.

Gibson is a member of Smith Anderson’s Health Care group and advises clients on value-based care, mergers and acquisitions, regula tory compliance, contract negotia

tions, privacy and security issues and private equity mat ters. Gibson gradu ated from the Uni versity of South Carolina School of Law and served as a law clerk to the Honorable Paul M. Burch, Fourth Judicial Circuit, South Carolina.

Prior to joining Smith Anderson, Gibson worked for a law firm in Charlotte where he practiced health care law.

Hipps is a mem ber of the firm’s Banking and Fi nance group and focuses his prac tice on commercial lending, cor porate finance, venture debt and other finance transactions. Prior to joining Smith Anderson, Hipps worked for an international law firm, where he represented com mercial banks and private credit lending institutions in a broad range of bilateral and syndicated finance transactions, including ac quisition financings, refinancings and restructurings.

McDonald advises clients on a wide range of technology and intel lectual property issues.

Prior to joining Smith Ander son, McDonald worked for an in ternational law firm in Chicago.

Prior to attend ing law school at the University of Michigan Law School, McDonald worked as an in tegration engineer for health care technology com pany Epic. Dur ing her undergrad at North Carolina State University, she obtained a B.S. in electrical engi neering, received the Senior Engi neering Award in Humanities and was a member of the Electrical En gineering Honor Society, German Honors Society and Student Sen ate.

Tommy Postek is an attorney with Smith Anderson’s Employ ment, Labor and Human Resourc es practice. Prior to joining Smith Anderson, Postek worked for na tional and international law firms, representing employers before state and federal administrative agencies in discrimination claims, workers’ compensation actions and other employment-related mat ters and assisting clients on other multifaceted legal issues. Prior to that, he served as a law clerk to the Honorable Edward Bronfin in Denver District Court.

Firm recognized by Truck Safety Coalition

The law firm of Riddle & Brant ley was recently named a “Champi on of Courage” by the Truck Safety Coalition (TSC), an organization committed to educating policymak ers and the public about commer cial truck safety issues.

As the only North Carolina firm honored with the “Champion of Courage” distinction, Riddle & Brantley is proud to support the efforts of the Truck Safety Coali tion, which raises public aware ness about the dangers of modern

trucking operations, regulations, and practices, according to a news releaase. As an internationally recognized organization, the TSC supports making changes on a leg islative level that put public safety first.

Among its many initiatives, the TSC recently petitioned the Nation al Highway Traffic Safety Admin istration to reconsider a prior rul ing and require commercial motor vehicles (CMVs) to install rear un derride guards. Without them, pas

senger vehicles involved in under ride crashes with large trucks are more vulnerable to system failure, causing serious if not fatal injuries to the passengers inside. The TSC also supports higher minimum in surance coverage for CMVs so that accident victims can avoid lengthy litigation to receive fair compensa tion for their injuries.

“We unequivocally stand by the Truck Safety Coalition, whose goal is to make our nation’s roads safer for everyone,” said managing part

ner Gene Riddle in the release.

“Introducing speed limiters and au tomated braking systems on com mercial vehicles, as well as stricter regulations to stop fatigued driving can help reduce the number of truck accident injuries and fatalities.”

The Truck Safety Coalition is a national non-profit partnership between Parents Against Tired Truckers (PATT) and the Citizens for Reliable and Safe Highways (CRASH). Staff report

Staff report

Amy Crout

John Gibson

Paula McDonald

Joseph Fields

Sam Hipps

Hope Garber

Tommy Postek

Landmark settlement issued for Medicaid beneficiaries

A settlement – subject to court ap proval – has been reached in Frank lin v. Kinsley, formerly known as Hawkins v. Cohen.

The federal class action lawsuit was filed in 2017 by Charlotte Center for Legal Advocacy and the National Health Law Program on behalf of Medicaid beneficiaries in North Car olina. In the lawsuit, the Advocacy Center and National Health Law Pro gram alleged that the North Carolina Medicaid agency, along with county Departments of Social Services (DSS), were terminating and reducing Med icaid benefits without considering eli gibility under all Medicaid categories.

It was alleged that this was done without providing timely and ad equate written notice, in violation of federal Medicaid statute and the U.S. Constitution. In the settlement agreement, the North Carolina Med icaid agency agreed to extensive and detailed changes to its procedures, forms, and notices for redetermining Medicaid eligibility for the 2.8 million North Carolinians currently enrolled in Medicaid.

According to a news release from Charlotte Center for Legal Advocacy, this settlement came at a crucial time as the COVID-19 public health emergency is expected to end in Jan uary of 2023. While the public health emergency is in effect, Medicaid ben eficiaries are protected from termina tion or reduction of their health care coverage. If the public health emer gency ends in January, reductions

or terminations of Medicaid are able to begin. The protections provided to beneficiaries under this settlement will be critical during that time.

A few of the protections for North Carolina Medicaid beneficiaries de tailed in the settlement agreement include, (1) not have their Medic aid stopped or reduced because the county DSS has not timely redeter mined their eligibility; (2) to have their eligibility be considered under all categories before their Medicaid is stopped or reduced; (3) to have their claim of disability considered

prior to termination or reduction of their Medicaid benefits; (4) to have their Medicaid continue with out them doing anything if DSS has enough information from other sources to show that they are still eligible; (5) to ask for and receive assistance from DSS in obtaining any information needed to redeter mine their eligibility; (6) to be able to reach their county DSS promptly by telephone; (7) to receive a writ ten notice before their Medicaid is reduced or terminated that clearly and specifically states why this ac

tion will be taken; (8) to have their case reopened if they provide the in formation needed by DSS after their benefits are stopped.

“This agreement provides a nation al model that we hope other states will follow, especially as they prepare for the end of the Public Health Emer gency,” Jane Perkins, Legal Director of the National Health Law Program, who co-counseled the case with the Advocacy Center said in the release.

“Once the PHE ends, state Medicaid agencies will be making massive re determinations of Medicaid eligibility for millions of people who had cover age during the duration of the PHE.

“Millions of people could improp erly lose their insurance coverage if this is not done right. Robust eligi bility and redetermination protec tions, like those just agreed to in North Carolina, will go a long way in ensuring that eligible people do not lose access to care.”

Before the agreement can be ap proved, the court will hold a fairness hearing to allow class members to object. That hearing is scheduled for Jan. 13, 2023, at 11 a.m. at the federal courthouse in New Bern, N.C.

If Medicaid beneficiaries in North Carolina have any questions about their rights, they may contact the at torneys at Charlotte Center for Legal Advocacy. They may call toll-free at 1-800-936-4971. They can also send the lawyers an email at Hawkinsin fo@charlottelegaladvocacy.org

Staff report

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A

Autistic girl, family awarded $4.9M settlement after abuse

■ BY HAVILAND STEWART hstewart@scbiznews.com

An autistic girl and her family were awarded $4.9 million after the girl was beaten by caregivers that resulted in serious injuries.

In 2016 an autistic, non-verbal 15-year-old girl with developmen tal and intellectual disabilities, and explosive disorder, living in an un licensed alternative family living (AFL) home was re peatedly beaten and traumatized by the two “caregivers” in the AFL home, her attorney reported.

According to the plaintiff’s lead council, Jeffrey R. Monroe, the beat ings caused lifethreatening bodily injuries, resulting in the child being hospitalized for eight weeks and un dergoing multiple surgeries.

One of the caregivers pleaded guilty to attempted murder of the child and felony child abuse inflict ing serious bodily injury and re ceived an active sentence of 110 to 114 months. The other caregiver pleaded guilty to conspiracy to com mit felony child abuse inflicting se rious bodily injury and received an active sentence of 73 to 100 months. The two caregivers were not sued in the civil cases. The civil cases were filed against the corporate entities and individuals that placed the child in the home.

The primary defendant in both the state and federal cases was Al liance Health, formerly known as Alliance Behavioral Healthcare. Ac cording to Monroe, Alliance is a local management entity (LME), autho rized by state statute to manage the provision of behavioral health care services to Medicaid-eligible enroll ees of the North Carolina Medical Assistance Program. LMEs do not directly provide behavioral health care services for their clients, rather they contract with private behav ioral healthcare provider agencies to provide the services required by the client’s individual support plan. LMEs then oversee the provision of those services and authorize pay ment to the provider agencies.

The acting chief of the Mental Health Licensure Section of the Di vision of Health Services Regulation testified that the AFL home license requirement for minors is manda tory and that the law is intended to ensure the safety of clients.

The plaintiff alleged that the caregivers, one male and one fe male, operating the AFL home had not been properly vetted by the provider agencies before they were hired. According to Monroe, the male caregiver had an old convic tion for assault on a female, and more recently he had been charged with assault on a female and false imprisonment. Though the more recent charges were dismissed, the warrants indicated that the alleged victim in both instances of dis missed charges was the female care giver. According to Monroe, the pro vider agencies obtained a criminal record check on the male caregiver, but they did not ask him about the

Is this a verdict or a settlement? Settlement

Type of case: Negligence, Civil Rights Amount: $4,875,000.00, comprised of the following recoveries: $2,000,000.00 from Alliance Health; $1,850,000.00 from a provider agency (name confidential); $1,000,000.00 from a provider agency (name confi dential); $25,000.00 from a provider agency (name confidential). The net recovery (recovery after attorney fees and costs) for the minor plaintiff was paid into a special needs trust established to preserve the minor’s eligibil ity for Medicaid services. The minor plaintiff’s mother’s claim was deriva tive. (Unless otherwise indicated, “Plaintiff” refers to the minor plaintiff.)

Injuries alleged: Multiple contusions of Plaintiff’s small intestine, colon and rectum, transverse process fractures of second and third lumbar vertebrae, transverse process fracture of right rib, contusions to pancreas, acute post hemorrhagic anemia, and emotional distress (PTSD) Surgeries: right hemicolectomy and ileostomy for colonic contusion and pancreatic injury; and subsequent takedown ileostomy 45 days later. Inpatient Hospi talization: 56 days

Case name: Actions were filed in North Carolina Superior Court and in U.S. District Court (Eastern District of North Carolina). (State case name confi dential). Federal Case: OBW, an incompetent person appearing through her GAL v. Alliance Health f/k/a Alliance Behavioral Healthcare, Local Man agement Entity/Managed Care Organization (LME/MCO), et al. Case No.: 5:21-cv-336

Judge: United States District Court Judge Terrence W. Boyle Date of verdict or settlement: January of 2022

Special damages [if applicable]: Medical Expenses for Treatment of Physi cal Injuries:  $173,861.32

Most helpful experts [if applicable]:

Plaintiff’s Experts: Dr. Jeffrey C. Holden, psychologist, specializing in mental retardation and child development, Dr. David S. Husted, forensic psychiatrist, Ashley H. Johnson, MS, CRC, CLCP, life care planner, J. C. Poin dexter, Ph.D., economist

Insurance carrier [if applicable]:

Alliance - Arch Specialty Insurance Company (identity of other insur ance carriers is confidential)

Attorney(s) for plaintiff and their firm(s): All attorneys representing the Plaintiff are with the law firm of Miller Monroe & Plyler: Jeffrey R. Monroe (lead counsel), Jason A. Miller, William W. Plyler, Robert B. Rader, III Attorney(s) for defendant and their firm(s): Erin M. Young, Hall Booth Smith, P.C., Charlotte, NC, Attorney for Alliance Health (state action). Andrew H. Erteschik, Poyner Spruill LLP, Raleigh, NC, Attorney for Alliance Health and individual defendants (federal action). Attorneys for Defendant Providers in state action not identified due to confidentiality agreement Was the opposing represented by counsel? Yes Were liability and/or damages contested? Yes

Has the judgment been successfully collected? Yes

conviction for assault on a female or the dismissed charges before he was hired or investigate whether there was a history of domestic violence in the home prior to the Plaintiffs placement.

According to Monroe, the provid er agencies that operated the unli censed AFL home were responsible for screening and hiring the care givers, however, Alliance Health also vouched for the suitability of the female caregiver. Alliance’s care coordinator also allegedly told Plaintiff’s mother that the licensing requirement was only a technical ity.

Alliance contended that there was no suitable community place ment available to meet the plaintiff’s needs, and that this circumstance explained the illegal placement of the plaintiff in the unlicensed AFL, Monroe reported.

The federal action was filed against Alliance and seven Alliance employees in their individual ca pacities. The federal action includ ed six claims – five claims alleging violations of 42 U.S.C. 1983 and one claim alleging violations of Title VI of the Civil Rights Act, 42 U.S.C.

§2000d.

The fifth 1983 claim was an equal protection claim based upon racial discrimination. A former NC Start — a community crisis prevention and intervention program for indi viduals with disabilities — clinical social worker who provided services for the plaintiff testified that Alli ance Health was “dismissive” of the concerns of Plaintiff’s mother. Re ferring to Alliance Health, the so cial worker testified, “When there’s a black mom and when there’s a non-black mom, there’s a differ ent response in how I think a lot of time their concerns are heard and received. And so that was seen mul tiple times in the work that we were doing in the cases that we were working on.”

The federal action alleged that Defendants’ custom and practice of racial discrimination was a cause of the actions and inactions of Defen dants that lead to the abuse of the plaintiff and constituted a violation of the Equal Protection Clause of the United States Constitution. De fendants denied the allegations.

The defense did not respond to requests for comment.

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CEREMONY / N.C. Bar Center hosts Justice Fund, Liberty Garden dedication ceremony

greater

Anonymous Justice Fund

The Anonymous Justice Fund was introduced by Edward G. (Woody) Connette, who serves as chair of the NCBF Development Committee. The donor chose to remain anonymous. Individuals who are 72 years of age and older, as is this donor, can count Qualified Charitable Distributions from their Individual Retirement Ac count toward their annual Required Minimum Distributions, and pay no federal income tax on distributions transferred directly to organizations such as the NCBF.

Joseph B. Cheshire V Justice Fund

A fifth-generation lawyer, Joseph B. (Joe) Cheshire V is the Senior Partner at Cheshire Parker Schnei der, PLLC of Raleigh. The renowned defense attorney is a past president of the N.C. Advocates for Justice (for merly N.C. Academy of Trial Law yers) and founding chair of the orga nization’s Criminal Law Section.

Within the NCBA he has served on the Board of Governors and its Executive Committee, as chair of the Criminal Justice Section, and is a pre vious recipient of the section’s Wade M. Smith Award. The award is pre sented annually to a criminal defense attorney who exemplifies the highest ideals of professionalism.

Cheshire is a graduate of the Uni

versity of North Carolina at Chapel Hill and Wake Forest University School of Law, and a veteran of the U.S. Army and Army Reserve.

George B. Mast Justice Fund

George B. Mast founded Mast Law Firm in Smithfield in 1962. The firm and Mast are still going strong af ter 60 years and multiple iterations, including Mast, Tew, Armstrong & Morris, P.A., Mast, Morris, Schulz & Mast, P.A., and Mast, Schulz, Mast, Mills, Stern & Johnson, P.A.

Mast is a past president of the North Carolina Bar Association and the North Carolina Bar Foundation, and past chair of the NCBA Litigation Section. He is a native of Watauga County, having earned his bachelor’s and law degrees from what was then known as Wake Forest College and now known as Wake Forest Univer sity. He is a veteran of the U.S. Army, where he served in the Judge Advo cate General’s Corps.

Rudy L. Ogburn Justice Fund

The late Rudy L. Ogburn served most of his entire legal career with Young Moore and Henderson, P.A., of Raleigh. He died on March 30, 2022, at the age of 65 following a coura geous battle with cancer.

Ogburn worked with First Citizens Bank before joining the Young Moore firm, where he practiced for 31 years and developed its estate planning practice. Ogburn served as chair of the NCBA Estate Planning & Fiduciary Law Section and in 2020 received

the section’s Distinguished Service Award. He also served as chair of the N.C. State Bar’s Estate Planning and Probate Law Specialization Commit tee and was certified as a specialist in this area; as president of the Wake County Estate Planning Council; and as NC State Chair of the American College of Trust and Estate Coun cil (ACTEC) and as a member of the ACTEC Board of Regents.

A native of Willow Springs, Og burn was a graduate of Wake Forest University and Wake Forest Univer sity School of Law.

Liberty Garden Benches

The Rudy L. Ogburn Liberty Gar den Bench was made possible through the generosity of the NCBA Estate Planning and Fiduciary Law Sec tion. As denoted previously, Ogburn was an active member of the section who provided leadership and service throughout his career.

The Chief Justice Emery B. Den ny and Wallace Ashley Jr. Liberty Garden Bench was made possible through the generosity of Emery Den ny Ashley and his son, Emery Denny Ashley Jr.

Liberty Garden Pavers

Liberty Garden Pavers were dedi cated in honor of Linda Johnson and Rebecca Smitherman as past chairs of the NCBA Estate Planning and Fi duciary Law Section, and Nick Ellis, Tricia Shields, Bonnie Weyher and Gray Wilson as recipients of the J. Robert Elster Award for Professional

Excellence of the N.C. Association of Defense Attorneys.

Pavers were also dedicated in memory of Holt Gwyn (1949-2017) of Greensboro, past chair of the NCBA Construction Law Section; Chief Justice I. Beverly Lake Jr. (1934-2019) of Raleigh, who served as chief justice of the Supreme Court of North Carolina from 200106; Patrick Pait (1983-2018) of Lum berton, who was a member of the NCBA Leadership Academy’s Class of 2016; and Paul Sheridan (19652019) of Fuquay-Varina, a founding partner of Hannah, Sheridan & Co chran in Raleigh.

Justice Funds and Liberty Garden Recognitions

NCBF Endowment Funds honor individual North Carolina lawyers and judges whose careers have ex emplified the Foundation’s values of access to justice, service through the profession, civic education and professionalism. NCBF Endow ment Justice Funds are Named En dowment Funds established with $50,000 in commitments intended to bolster the Foundation’s unrestrict ed endowment.

The NCBF Annual Fund, which is supported in part by Liberty Garden recognitions, provides operational support to pro bono and civic educa tion programs that annually engage hundreds of attorney volunteers to serve thousands of North Carolinians in all 100 North Carolina counties.

Staff report

good for the people of North Carolina.”

Family receives $19M in car crash settlement

■ BY HAVILAND STEWART hstewart@scbiznews.com

In 2020 two commercial motor vehicles engaged in a near head on collision. They were travelling in different directions in a small county in South Carolina.

Each driver was alone in their vehicle. The plaintiff, who was represented by attorneys Randall Hood and Donovan Malloy, suf fered many injuries and ultimate ly died soon after the crash. The plaintiff was survived by a spouse and children. The defendant sur vived the crash with extensive in juries.

According to Hood, obtaining information from United States Department of Transportation was important to the case, and there was a day in the life video that

helped illustrate the loss that the plaintiff’s family experienced.

This case settled for $19 million in September 2022.

Many details of this case have been withheld due to a confidentiality agreement.

Is this a verdict or a settlement? Settlement

Type of case: Commercial Motor Vehicle Amount: 19,000,000.00

Injuries alleged: Injuries and Death Case name: Confidential Court: Circuit Court – Venue Confidential Case No.: Confidential

Date of settlement: September 2022

Most helpful experts: Accident reconstruction expert

Attorney(s) for plaintiff and their firm(s): S. Randall Hood and Donovan Malloy of McGowan, Hood, Felder, and Phillips, LLC and Gerald Malloy of Malloy Law Firm

Attorney(s) for defendant and their firm(s): Confidential Was the opposing represented by counsel? Yes

Were liability and/or damages contested? Yes

Has the judgment been successfully collected? Settlement has been court approved

STRATEGY / ‘The move ... allowed us great flexibility’

to the highest standards of legal practice and client satisfaction and a guarantee of privacy and confiden tiality regardless of where a client’s attorney or support staff are located.

Clients and guests remain wel come to visit the offices for consulta tions and other meetings.

“The move to a fresh space allowed

us great flexibility in designing an environment just right for our team. We enjoyed our years at American To bacco immensely, as evidenced by the fact that we’re not moving far. ,” says Farrin. “To try to ensure our clients always have the best outcomes, our firm will continue to recruit the top attorneys and support staff in their respective fields and, for many, a hy brid working environment with flex

ibility has become a chief prerequisite for joining a firm. James Scott Farrin has always been known as a leader in our field and we’ll continue to make strategic changes to stay there.”

In addition to its Durham head quarters, The Law Offices of James Scott Farrin also has North Caro lina offices in Asheville, Charlotte, Durham, Fayetteville, Goldsboro, Greensboro, Greenville, Henderson,

New Bern, Raleigh, Roanoke Rapids, Rocky Mount, Sanford, Wilmington, Wilson, and Winston-Salem. They re cently opened an office in Greenville, SC.

The Law Offices of James Scott Farrin is one of the largest personal injury firms in North Carolina and has helped over 55,000 injured people since 1997.

Staff report

ECU, MrBeast to create exclusive educational partnership

East Carolina University and MrBeast have announced an exclu sive partnership aimed at developing a credentialing program to help solve the creator industry’s growing de mand for a skilled workforce pipeline, according to a news release from the school.

Valued by Fast Company at $104 billion annually, the content creator industry is seen as an emerging lead er of the global economy. MrBeast’s brand alone is the largest on the You Tube platform with five channels, 111 million subscribers on just the main channel and a collective 20 bil lion views. In addition, the brand also owns MrBeast Burger, Feastables, and a 501(c)(3) Charity (Beast Phi lanthropy).

This program will not focus on finding the next YouTube star, but instead will provide training and cre

dentialing for employees who work for creator companies that produce content.

The creator industry includes more than 50 million amateurs and 2 mil lion professionals, of which more than 1 million earn a living on YouTube alone. The need for highly qualified staff drives the creation of this pro gram. The microcredential courses will be delivered fully online and prepare enrollees for entry-level posi tions in camera work, editing, analyt ics and other needed creator industry skills. The program will not require applicants to be currently enrolled as traditional four-year students at ECU and is expected to launch in six to 12 months.

The creator industry is advanc ing rapidly. As it grows, its need for a professionalized workforce grows too. Finding employees with the right

combination of perseverance, apti tude and technical knowledge is chal lenging. The risk of hiring someone with limited capacity in any of these areas decreases operational efficiency and, ultimately, company success.

“This program is focused on ad dressing these challenges head on,” Rogers said. “In this program, in dustry insiders collaborate directly with academic experts to connect cutting-edage techniques with the knowledge creation engine of a uni versity.”

The university and the creator in dustry will work together to build a curriculum that addresses the work force needs and meets rigorous aca demic standards.

According to ECU Provost Robin Coger, “The goal of this program is to educate a well-prepared work force for immediate employment

across the creator economy glob ally. Our partner, MrBeast, is the leader in this rapidly grow ing industry. The collaboration is innovative because it couples the expertise of ECU faculty and in dustry leaders to create new, flex ible and responsive strategies to support a fast-paced global eco nomic engine.”

A native of Greenville, Jimmy Don aldson, aka MrBeast, earned the top spot on the Forbes list of 2022 Top Creators. When he was 13, Donald son began making and posting vid eos. That has developed into a creator business, headquartered in Green ville, that today has 125 full-time plus approximately 125 contract employ ees. MrBeast has built its brand on four pillars: spectacles, philanthropy, general good, and in-real-life comedy of family-friendly content.

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Randall Hood

Gerald Malloy

Donovan Malloy

Opinions

Civil Rights

Attorney’s Fees – Consent Judgment – Partial Victory – Abortion Protest ers

Abortion protesters challenged a city ordinance that, among other things, prevented them from distrib uting literature to clinic patients. The parties entered into a consent judg ment that, under most circumstanc es, allows protestors to step into the clinic’s driveway to hand literature to vehicle occupants. Since the consent judgment allows plaintiffs to engage in an activity from which they were previously prohibited and obligates the city to accommodate them, plain tiffs were the prevailing party in this civil rights litigation.

We affirm the district court’s award to plaintiffs of $33,701.88 in attorney’s fees and $3,086.60 in costs.

Although the consent decree doesn’t establish that the city did, in fact, violate plaintiffs’ rights, noth ing in 42 U.S.C. § 1988 conditions the district court’s power to award fees on a judicial determination that a plain tiff’s rights have been violated. Plain tiffs’ previous inability to distribute literature to vehicles at the clinic was central to their claim. Thus, the consent judgment granted plaintiffs some relief on the merits sufficient to establish this prerequisite for fee shifting.

Cities4Life, Inc. v. City of Charlotte (Lawyers Weekly No. 001-110-22, 10 pp.) (Albert Diaz, J.) No. 21-1322. Ap pealed from USDC at Charlotte, N.C. (Kenneth Bell, J.) Daniel Peterson and Benjamin Sullivan for appellant; Stephen Crampton and Tyler Brooks for appellees. 4th Cir.

Schools & School Boards

Constitutional – Separation of Pow ers – Funding

For more than a quarter century, the state has failed to provide a sound basic education to children in this state, as required by our state consti tution and by prior court orders and appellate decisions. Consequently, this court takes the extraordinary step of affirming a trial court order requiring state officials to transfer money from the state’s coffers to fund the state’s Comprehensive Remedial Plan, which was designed to bring the state into compliance with the consti tution and court orders.

The trial court’s November 2021 order is reinstated and affirmed. The Court of Appeals’ writ of prohibition is stayed. The trial court is instructed to retain jurisdiction over this matter to ensure the implementation of this order and to monitor continued con stitutional compliance.

The trial court’s November 2021 order concluded that N.C. Const. art, I, § 15 “represents an ongoing con stitutional appropriation of funds sufficient to create and maintain a

school system that provides each of our State’s students with the consti tutional minimum of a sound basic education[,] . . . [and] may therefore be deemed an appropriation ‘made by law.’”

Although our constitution (1) gives the power of appropriating funds to the legislature and (2) provides for a separation of powers among the three branches of government, the constitu tion also provides for checks and bal ances.

N.C. Const. art. I, § 18 establishes that “every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.” The duty to ensure such redress belongs to the courts.

With this constitutional duty comes constitutional powers. Gener ally, judicial power arises from N.C. Const. art. IV, § 1, which establishes that “[t]he judicial power of the State shall . . . be vested in a Court for the Trial of Impeachments and in a General Court of Justice.” The con stitution further establishes that “[t] he General Assembly shall have no power to deprive the judicial depart ment of any power or jurisdiction that rightfully pertains to it as a coordinate department of government.” N.C. Const. art. IV, § 1.

In the realm of appropriations, some overlap of power between the legislative and the judicial branches is inevitable. Accordingly, this court has held that when inaction by those exer cising legislative authority threatens fiscally to undermine the integrity of the judiciary, a court may invoke its inherent power to do what is reason ably necessary for the orderly and ef ficient administration of justice.” In re Alamance Cnty. Court Facilities, 329 N.C. 84 (1991). Although “Article V prohibits the judiciary from taking public monies without statutory au thorization[,]” when the exercise of remedial power “necessarily includes safeguarding the constitutional rights of the parties[,] . . . the court has the inherent authority to direct local au thorities to perform that duty.” Id.

The General Assembly is consti tutionally required to appropriate at least enough funding to public edu cation such that every child in every school in every district is provided with the opportunity to receive at least a sound basic education. When it does not, it violates both its own constitutional duties and the con stitutional rights of North Carolina schoolchildren under the constitu tion’s Education Provisions. To hold otherwise would allow the General Assembly to ignore these duties and rights, rendering them—and, in other contexts, other constitutional duties or fundamental rights—meaningless and not subject to judicial enforce ment. This our constitution does not allow.

The dissent focuses exclusively on the legislature’s powers while ignor ing its constitutional duties. Such an approach would allow the legislature to exercise its broad powers under the Appropriations Clause (or others) in a

manner that indefinitely violates the fundamental constitutional rights of the people.

Because the constitution requires the General Assembly to adequately fund the state’s system of public edu cation, in exceedingly rare and ex traordinary circumstances, a court may remedy an ongoing violation of the constitutional right to the op portunity to a sound basic education by ordering the transfer of adequate available state funds.

The November 2021 order orders the OSMB and the State Budget Di rector, the Office of the State Con troller and the State Controller, and the Office of the State Treasurer and the State Treasurer to “take the nec essary actions to transfer the total amount of funds necessary to effectu ate years 2 & 3 of the [Comprehensive Remedial Plan (CRP)] from the unap propriated balance within the Gen eral Funds to the state agents and state actors with fiscal responsibility for implementing the [CRP].” The or der then specifies the dollar amounts of three transfers to the Department of Health and Human Services, the Department of Public Instruction, and the UNC System. The order di rects these recipients, their agents, and all other involved state actors to administer those funds and take any other actions necessary “to guarantee the opportunity of a sound basic edu cation consistent with, and under the times frames set out in, the [CRP], in cluding the Appendix thereto.”

We affirm the constitutionality of the November 2021 order’s trans fer directives. We reach this hold ing because, given the extraordinary circumstances of this case, the trial court acted within its inherent power to address ongoing constitutional vio lations through equitable remedies while minimizing its encroachment upon the legislative branch.

Dissent

(Berger, J.) Today’s decision is based on a process that was grossly deficient. Hearings were not held as required by our prior decision. The rush to find a statewide violation in the absence of input by the legisla ture, the collusive nature of this case, the ordering of relief not requested by the parties in their pleadings or permitted by our prior decisions, and the blatant usurpation of legislative power by this court is violative of any notion of republican government and fundamental fairness.

Under no circumstance, however, should this court take the astonish ing step of proclaiming that “inher ent authority” permits the judiciary to ordain itself as super-legislators. This action is contrary to our system of government, destructive of separa tion of powers, and the very defini tion of tyranny as understood by our Founding Fathers.

Hoke County Board of Education v. State (Lawyers Weekly No. 010-10522, 227 pp.) (Robin Hudson, J.) (Philip Berger, J., joined by Paul Newby, C.J. & Tamara Barringer, J., dissenting) Appealed from Wake County Su perior Court (David Lee & Michael Robinson, JJ.) Melanie Black Dubis,

Scott Bayzle, Catherine Clodfelter, Lawrence Armstrong, Christopher Brook, David Hinojosa and Michael Robotti for plaintiffs; Amar Maj mundar, Swain Wood, Ryan Park, Sripriya Narasimha, South Moore, Matthew Tulchin and Tiffany Lucas for defendants; Matthew Tilley, Russ Ferguson, Clark Goodman and Mi chael Intersoll for intervenors; Robert Hunter, for Nels Roseland, Controller of the State of North Carolina; Jane Wettach, John Charles Boger, Peggy Nicholson, Crystal Grant, David Sci arra, Elizabeth Lea Troutman, Eric David, Daniel Smith, Kasi Robinson, Richard Glazier, Matthew Ellinwood, John Wester, Adam Doerr, Erik Zimmerman, Emma Perry, Patrick Hill, William Hancock and Jeanette Doran, for amici curiae. 2022-NCSC108

Prisons & Jails

Civil Practice – Class Action – Consti tutional – Solitary Confinement

The plaintiff-prisoners sought cer tification of a class to challenge soli tary confinement in North Carolina’s prisons; however, there are multiple types of solitary confinement with diverse penological purposes, vary ing durations of assignment thereto, and differing conditions. The trial court did not abuse its discretion in determining that plaintiffs had failed to establish that the potential class members’ claims share a common predominating issue.

We affirm the trial court’s denial of plaintiffs’ motion to certify a class.

Dissent (Earls, J.) Class members chal lenge the same statewide practice, which allows for indefinite use of solitary confinement across all clas sifications. Accordingly, the distinc tions cited by the majority cannot, as a matter of law, weigh against class certification. The trial court and the majority improperly delved into con sideration of the merits at the classcertification stage.

Dewalt v. Hooks (Lawyers Weekly No. 010-106-22, 33 pp.) (Paul Newby, C.J.) (Anita Earls, J., joined by Rob in Hudson, J., dissenting) Appealed from Wake County Superior Court (James Hardin, J.) Daniel Siegel and Kristi Graunke for plaintiffs; Orlan do Rodriguez, Mary Carla Babb and James Trachtman for defendants; Aviance Brown, Irving Joyner, Daryl Atkinson, Whitley Carpenter, Ashley Mitchell, Scott Holmes, Daniel Green field, Bradford Zukerman, Kathrina Szymborski, Nichad Davis and Benja min Friedman for amici curiae. 2022NCSC-105

Criminal Practice

Dismissal with Leave – Reinstatement Sought

We affirm the superior court order

for the reasons stated in State v. DiazTomas (2022-NCSC-115, NCLW 010110-22) (G.S. § 15A-932(d) gives the district attorney exclusive and discre tionary power to reinstate criminal charges once those charges have been dismissed with leave following a de fendant’s failure to appear. Defendant cannot force the D.A. to reinstate the charges to the trial calendar.). Affirmed.

State v. Nunez (Lawyers Weekly No. 010-107-22, 2 pp.) (Per Curiam) (Philip Berger, J., not participating) Appealed from Wake County Supe rior Court (Paul Ridgeway, J.) On writ of certiorari from the Court of Appeals. Joseph Hyde for the state; Glenn Gerding and Nicholas Woom er-Deters for defendant; Erwin Byrd and Thomas Maher for amicus curiae. 2022-NCSC-112

Consumer Protection

Consumer Economic Protection Act –Debt Buyer – Statutory Requirements – No

Precedential Value

On appeal from our Court of Ap peals, the participating members of the Supreme Court stand equally divided as to whether to affirm or reverse; consequently, we let stand, without precedential value, the Court of Appeals’ decision (When the defen dant-debt buyer obtained a default judgment against the plaintiff-debtor, the debt buyer failed to comply with the Consumer Economic Protection Act’s itemization requirements be cause the debt buyer failed to list the total creditor-assessed unpaid charg es and total creditor-assessed unpaid fees that contribute to the charge-off balance, separating them both from each other and from the remaining total of unpaid purchases, cash ad vances, and any other transactions that constitute the rest of the chargedoff amount. We affirm the trial court’s grant of partial summary judgment to the plaintiff-debtor. We reverse the trial court’s grant of partial summary judgment to the debt buyer on the is sue of chain of ownership. Remanded.) Affirmed without precedential val ue.

Townes v. Portfolio Recovery As sociates, LLC (Lawyers Weekly No. 010-108-22, 2 pp.) (Per Curiam) (Sam Ervin, J., not participating) Jason Pikler, Carlene McNulty and Jerome Hartzel for plaintiff; Jon Berkelham mer, Joseph Hammond, Michelle Liguori and Scott Hazelgrove for de fendant; Celia Pistolis, Kathryn Sab beth, Nadine Chabrier, Karen Fisher Moskowitz, Marjorie Maynard, Adri an Lapas and Suzanne Begnoche for amici curiae. 2022-NCSC-118

Criminal Practice

Jury Instructions – Self-Defense –Preservation of Error – Insufficient Evidence

At the charge conference, defense counsel agreed to the jury instruc tions proposed by the trial court; however, the next morning – before the trial court delivered the instruc tions – defense counsel requested an instruction on self-defense. Since counsel made the request before the jury retired to consider its verdict, defendant preserved this issue for ap pellate review.

Nevertheless, the evidence showed that defendant assaulted the mother

of his son, Ashley Thomas, and that, in a struggle for a gun, defendant was shot in the leg. Even if defendant as saulted Thomas after he was shot, there was no evidence that he did so for the purpose of defending himself from any unlawfully assaultive con duct by Thomas.

We find no error in defendant’s convictions of assault by strangula tion, communicating threats, assault on a female, interfering with an emer gency communication, and attaining habitual-felon status.

Although defendant failed to give the required notice that he intended to put on an affirmative defense, the remedy for such a failure would be a discovery sanction. Assuming, with out deciding, that a trial court is au thorized to refrain from instructing the jury concerning an affirmative defense of which the defendant was required to provide notice pursuant to G.S. § 15A-905(c)(1) as a discovery sanction on the basis that such a de termination constitutes an “other ap propriate order” authorized by G.S. § 15A-910(a)(4), the record contains no indication that the trial court consid ered the totality of the surrounding circumstances in reaching that deci sion as required by G.S. § 15A-910(b) or made the required “findings justi fying the imposed sanction,” G.S. § 15A-910(d).

Dissent (Newby, C.J.) On the merits, this case asks whether the trial court erred when it denied defendant’s re quest for a jury instruction on selfdefense. Were this issue preserved, I agree with the majority that the trial court did not err. Because defendant failed to preserve this issue for ap pellate review, however, this court should not reach the merits. Further, defendant failed to provide timely no tice to the state of his intent to offer a defense of self-defense as required by § 15A-905(c). The trial court, there fore, appropriately exercised its dis cretion under § 15A-910(a) in denying defendant’s requested instruction.

Dissent

(Earls, J.) The majority advances an astounding proposition: Even if, as defendant’s evidence suggests, Thomas had grabbed a gun, pointed it at him, fired it, and he then tried to wrestle the gun away from her, there is nevertheless no evidence “tending to show that defendant assaulted Thomas based upon a perceived need to defend himself against unlawful at tack.” The notion that the jury could not reasonably infer that defendant feared for his life after being shot in his hotel room, a place he had a le gal right to be, goes against common sense and well-established precedent. Therefore, I concur with the majority that this issue was preserved for re view on appeal, but I dissent from the conclusion that defendant’s evidence in this case did not justify the sub mission of a self-defense instruction to the jury. The jury was free to be lieve the state’s witnesses over defen dant’s, but they needed to know the law of self-defense to properly assess his guilt.

State v. Hooper (Lawyers Weekly No. 010-109-22, 45 pp.) (Sam Ervin, J.) (Paul Newby, C.J., joined by Philip Berger & Tamara Barringer, JJ., con curring in part and dissenting in part) (Anita Earls, J., concurring in part and dissenting in part) Appealed from Rockingham County Superior Court (Stanley Allen, J.) Jasmine McGhee and Zachary Ezor for the state; John Carella for defendant. 2022-NCSC114

Criminal Practice

DWI – Failures to Appear – Dismissal with Leave – Reinstatement Sought

After defendant twice failed to ap pear on charges of driving while im paired and driving without an opera tor’s license, the district attorney had the authority to dismiss the charges against defendant with leave to rein state them. G.S. § 15A-932(d) gives the district attorney exclusive and discretionary power to reinstate crim inal charges once those charges have been dismissed with leave following a defendant’s failure to appear. De fendant cannot force the D.A. to rein state the charges to the trial calendar.

We affirm the Court of Appeals’ ruling that the superior court correct ly refused to require the D.A. to rein state the charges against defendant. We improvidently granted discretion ary review as to other issues.

The General Assembly has direct ed the Division of Motor Vehicles to revoke a defendant’s driving privileg es upon receiving “notice from a court that the person was charged with a motor vehicle offense and . . . failed to appear.” G.S. § 20-24.1(a).

G.S. § 15A-932 provides a singular process by which a charge may be re instated: “Upon apprehension of the defendant, or in the discretion of the prosecutor when he believes appre hension is imminent, the prosecutor may reinstitute the proceedings by filing written notice with the clerk” of court. The use of the word “may” in § 15A-932(d) grants exclusive and discretionary power to the state’s dis trict attorneys to reinstate criminal charges once those charges have been dismissed with leave following a de fendant’s failure to appear in court to respond to them.

A defendant may activate dormant charges without the involvement of a district attorney by tendering “to the court that waiver and payment in full of all applicable fines, costs, and fees. . . . Upon disposition of the case pursuant to this subsection, the clerk shall recall any outstanding criminal process in the case. . . .” Thus, the General Assembly has expressly des ignated in § 15A-932(d) and (d1) the narrow, specified ways in which crim inal charges which have been placed in dismissed-with-leave status can be resolved.

A district attorney cannot be com pelled to reinstate a charge, due to the official’s recognized exclusive and dis cretionary power to reinstate crimi nal charges once those charges have been dismissed with leave following a defendant’s failure to appear in court to respond to the charges when calen dared on a trial court docket.

Defendant cites G.S. § 20-24.1(b1), which states in its entirety, “A de fendant must be afforded an oppor tunity for a trial or a hearing within a reasonable time of the defendant’s appearance. Upon motion of a de fendant, the court must order that a hearing or a trial be heard within a reasonable time.”

Defendant conveniently construes the term “appearance” to leniently apply to the eventual presentation of himself—whenever that may be— at a calendared session of the trial court after defendant has failed to appear for court when his criminal charges were originally scheduled for resolution within a reasonable time. After failing to appear for court on two scheduled opportunities to re solve his criminal charges when the district attorney placed defendant’s

charges on a trial court docket for resolution within a reasonable time, defendant’s insistence pursuant to his construction of § 20-24.1(b1) upon the reinstatement of his charges by the district attorney or by the district court “for a trial or a hearing within a reasonable time of the defendant’s appearance” rings hollow when defen dant did not come to court to respond to the criminal charges until nearly three years had passed since his origi nal court date.

Not only has the General Assem bly given district attorneys exclusive and discretionary power to reinstate charges that were dismissed with leave due to a defendant’s failure to appear, but our jurisprudence also requires us to avoid unnecessarily interfering with district attorneys in their performance of constitutionally and statutorily mandated duties.

Finally, Klopfer v. North Carolina, 385 U.S. 213 (1967), and Simeon v. Hardin, 339 N.C. 358 (1994), are dis tinguishable given that – rather than consistently seeking resolution of the charges against him – defendant here successfully evaded responsibility for nearly three years.

Affirmed in part; discretionary re view improvidently allowed in part.

State v. Diaz-Tomas (Lawyers Weekly No. 010-110-22, 26 pp.) (Mi chael Morgan, J.) (Philip Berger, J., not participating) Appealed from Wake County Superior Court (Paul Ridgeway, J.) On appeal and dis cretionary review from the Court of Appeals. Joseph Hyde for the state; Anton Lebedev for defendant. 2022NCSC-115

Criminal Practice

Constitutional – Right to Counsel –Waiver Finding

By the time defendant’s case was called for trial, he had been through four attorneys – two of whom had left for their own reasons and two of whom defendant had asked to withdraw –and defendant had been representing himself for about four months. Defen dant had previously raised concerns about his lack of access to the legal materials he needed to prepare for trial, and on the day his trial was to begin, he asked to be assigned coun sel. Against this backdrop, and given that defendant was neither disrup tive nor disrespectful, the trial court erred in determining that defendant had waived his right to counsel.

We affirm the Court of Appeals’ grant of a new trial.

Dissent

(Berger, J.) The trial court made appropriate findings that defendant “obstructed and delayed” the court’s proceedings. In its findings, the trial court listed numerous times when de fendant could have had an attorney represent him rather than use stand by counsel and did not, while also de tailing the times defendant asked his attorneys to withdraw. The trial court determined these behaviors to be will ful and obstructive. These findings were supported by the evidence in the record and are entitled to deference by this court.

State v. Harvin (Lawyers Weekly No. 010-111-22, 55 pp.) (Michael Morgan, J.) (Philip Berger, J., joined by Paul Newby, C.J. & Tamara Bar ringer, J., dissenting) Appealed from New Hanover County Superior Court (Phyllis Gorham, J.) On writ of certio rari to the Court of Appeals. Marissa

UNSUNG HEROES

INSIDE: Celebrating the behind-the-scenes champions at North Carolina law firms

Andy Armstrong, office and IT manager at The McIntosh Law Firm in Davidson, is credited with implementing a new practice management software system at the 60-person firm, a project called “daunting” by firm managers.

The process took nearly a year and included accounting software changes for both the firm and client trust accounts. Through it all, other law firm management activities kept running smoothly without an interruption. According to his firm, he did it all with a smile on his face.

Armstrong, who has been at the firm for over 21 years says he enjoys what he does – even the challenging tasks and appreciates the opportunity to use his skills in finance, accounting, and information technology to support a team that helps its community.

“I love working for a firm where I can use my skills in a family environment,” he says. “Working at The McIntosh Law Firm allows me to use my love of numbers and reporting skills to make a difference.”

After graduating from N.C. State University with a Bachelor of Science degree in agriculture business management and a minor in accounting, Armstrong joined The McIntosh Law Firm where he has worked over the course of his career.

He is also a deacon at his church, Connect Christian, in Concord, N.C. where he enjoys volunteering with the tech ministry, running the sound board and recording the Sunday morning and evening services and Wednesday night services.

When Armstrong is not at work, he enjoys relaxing around the pool with his family and friends, watching movies with his wife and daughter, or playing games with friends.

At the Law Offices of David Gantt, Lawrel Banks is credited with creating efficiencies that help the firm run smoothly. Along with her organizational skills, she is always a positive influence on the staff.

Banks is a 24-year veteran of law office administration. She began her journey with the Law Offices of David Gantt as an entry-level bookkeeper and worked her way up the ladder to become a paralegal also tasked with managing a busy solo law practice.

At work, Banks enjoys cultivating relationships with clients and helping them through hard times.

“I also enjoy working with attorneys and paralegals across the state,” she says. “However, I am most happy when I’m preparing legal documents and pleadings - specifically motions - that set out a history of events leading up to the need for judicial intervention.”

Banks holds an Associate of Arts degree in business administration. She has served the Asheville Area Paralegal Association in multiple capacities, including as treasurer, vice president, and president.

At work, she is most proud of the number of clients her firm has helped across her tenure at the firm.

“You realize the impact you made in someone’s life when even after 10 years have passed, they still refer their family and friends to us,” she says.

She is also proud of her family – two grown sons and a new granddaughter.

In her spare time, she loves going to movies with family and friends.

“While our favorite movie genre is action, we also enjoy dramas, comedies, and science fiction,” she says. “My youngest son and I have seen every Marvel movie on the big screen.”

If Banks is not in a theatre enjoying the latest blockbuster, she enjoys working on crafts, home projects, reading or lazing with her dog.

DONNA BRICKEY

OFFICE MANAGER LAW OFFICES OF MARK E. SULLIVAN RALEIGH, N.C.

At the Law Offices of Mark E. Sullivan in Raleigh, Donna Brickey is known as a woman of many talents for her ability to make the office run smoothly, professionally, and efficiently.

As the firm’s office manager, Brickey supervises the administrative staff, ensures communications are sent, received, saved, and retrieved, and she handles the hiring and billing.

Brickey also serves as the in-office tech expert and used her analytical skills to redesign the firm’s office space to create greater efficiency.

“I take pride in the work I do, so I try to approach every task I set out to do and complete it to the best of my ability,” she says. “As my father always told me, ‘it is not what you do, but how well you do it.’”

A native of Durham, N.C., Brickey is a law office management professional with 35 years of office management experience. She joined Law Offices of Mark E. Sullivan in 1995.

Brickey says her favorite aspect of work is the variety. No two days are the same. From software challenges to finding efficient ways to handle tasks, she embraces her multi-faceted role.

“I enjoy every aspect of my job, and the variety of tasks and responsibilities gives me satisfaction with no time for boredom,” she says. I also enjoy speaking with our clients and giving them a sense of peace during a difficult time in their lives.”

Brickey lives in the Garner area with her husband and two spoiled pugs. When she’s not at work, she loves to read, go fishing and relax with her family. She is also an avid gardener.

“Raised bed vegetable gardening is therapeutic and rewarding,” she says. “I love working the soil and watching the plants grow to harvest time, not to mention eating what I produce.”

WENDY CAMPBELL OFFICE MANAGER WARD BLACK GREENSBORO, N.C.

For 27 years, Wendy Campbell has been a missiondriven employee at Ward Black in Greensboro. As office manager, she is responsible for all the back-office functions, including payroll, accounting, trust accounting, cash management, HR, benefits, and compliance management.

Campbell believes her job is a perfect fit with her personality and caring nature.

“I love helping people,” she says. “My job has given me the incredible opportunity to help, love, and care for not only our clients but also for our employees, their families, and our communities.”

Out in the community Wendy coordinates with over 100 non-profits, locally and across the globe coordinating the firm’s tithing program – donating 10% of its gross monthly revenue to help fund ministry activities such as Bible translation, church building, and aiding underserved populations.

Campbell also started a Care Team made up of employee volunteers who care for the firm’s employees and their families and coordinates our quarterly community service days. She considers these roles as her top professional accomplishments.

“This year, our projects have included collecting coats for the Give a Kid A Coat campaign, collecting supplies for the IRC White Flag Shelter, hosting a workday at Camp Carefree and many other activities,” she says. “We also host quarterly Zoom meetings where we invite six or seven of our non-profit tithe partners to meet with our employees, which gives the non-profits a chance to get to know each other and allows our staff to have the opportunity to hear directly from the non-profits benefiting from their hard work.”

When Campbell is not working, she enjoys supporting her 17-year-old daughter who is a high school varsity cheerleader, and her 20-year-old son who is serving in the Submarine Force of the United States Navy.

LISA COMITO

WOODRUFF FAMILY LAW FIRM GREENSBORO, N.C.

After a career in North Carolina’s public school sys tem, Lisa Comito parlayed her teaching skills into a sec ond career at Woodruff Family Law Group in Greensboro. She serves a dual role as the firm’s human resources manager and document manager. She is known as a dynamic and dedicated leader whose attention to detail is key to keeping the firm running smoothly.

For Comito, it’s all about a transfer of skills.

“The skills I developed during my career in edu cation have enabled me to use best practices in my work today,” she says. “I believe in using data to drive decision-making, which helps me develop processes for mentoring staff, providing feedback, and training – all of which are important to achieve our goals.”

Comito taught at Page High School in Greensboro for 26 years before joining the administrative team at Smith High School, one of North Carolina’s lowest performing high schools. As assistant principal, she worked with administration and staff to improve student achievement by 30%.

At Woodruff Family Law Group, Comito enjoys training and mentoring colleagues and helping them develop the skills they need to be valuable team members.

“Seeing individuals grow professionally to meet the vision and expectations of the firm is gratifying,” she says.

A native of Greensboro, Comito earned her Bachelor of Arts degree in history, arts and sociology from N.C. State University and her Master of School Administration from UNC-G She has held local offices in the North Carolina Association of Educators and remains a member of the Greensboro/Guilford chapter of the N.C. Retired School Personnel.

On weekends, Comito enjoys getting outdoors and spending time with family.

“My grandchildren are my pride and joy and any time I get to spend with them is wonderful,” she says.

LAUREN GRIFFIN

SENIOR PARALEGAL SHUMAKER LOOP & KENDRICK CHARLOTTE, N.C.

Lauren Griffin has been called the glue that holds her firm together, and she’s known for caring for her colleagues and offering her friendship. During the pandemic, when attorneys and staff were authorized to work remotely, Griffin chose to go to the office almost every day, giving others a sense of normalcy.

Griffin is a senior paralegal in the Litigation and Disputes Service Line in the Charlotte office of Shu maker, Loop & Kendrick, and has experience in gen eral civil litigation and construction litigation in both North Carolina and South Carolina. Her favorite aspect of her job is working alongside her litigation team.

“Everyone is so smart, always motivated to be the best of the best, and we all know how to work hard but also have fun together,” she says.

A graduate of UNC-Charlotte with a Bachelor of Arts degree in political science, Griffin received her certificate in paralegal studies from Duke University.

She enjoys helping people and solving their problems. With a background in various sectors of the legal world, she is not easily intimidated by challenging proj ects and is constantly using her education and experience to produce the best work product for the client.

Among Griffin’s many accomplishments, a hard-won trial stands out.

“The week-long trial was emotionally taxing for our clients,” she says. “The look on their faces when the verdict was read made very long workday – and night – com pletely worth it.”

Griffin unwinds by coaching soccer at a local YMCA and traveling. She’s looking forward to an upcoming trip to Germany.

“I am also an avid reader, and I love spending time with my friends, family, and dogs,” she says.

ERICA COOKE

PARALEGAL PENISTON DEASON CHARLOTTE, N.C.

With her deep general practice experience, Cooke maintains a diverse workload. Her everyday knowl edge of clients, cases, law, and facts has been called “extraordinary,” and her duties extend into firm management.

This diversity and the many opportunities are the reasons Cooke loves her job.

“My position allows me to be a little bit of every thing,” she says. “On any given day I can be tasked with a multitude of jobs ranging from simple case management to in depth investigations.”

A Mint Hill, N.C. native, Cooke attended local schools. She is a graduate of UNCCharlotte, Central Piedmont Community College, and Liberty University.

She considers her 16-year tenure at Peniston Deason as her top professional ac complishment.

“In those 16 years I have grown from a young inexperienced paralegal to a sea soned professional with the ability to handle any task put in front of me,” she says.

When Cooke is not at work, she enjoys spending time with her family. She is also a youth leader at her church, working with roughly 50 middle school and high schoolers, “Unwinding is not exactly in my vocabulary, but when I am not in the office, you can find me on an athletic field,” she says. I have been coaching soccer for over 10 years, but what I enjoy most is sitting on the sidelines of the athletic fields and watch my children and their teammates go after their dreams.”

VICKY GRIMAUD

PARALEGAL WYATT EARLY HARRIS WHEELER HIGH POINT, N.C.

“Each case and each client is unique and each requires something different,” she says. “Some days are challenging, and it’s a good feeling at the end of the day to know that you have made a positive differ ence in someone else’s life, whether it’s your client or your attorneys.”

A native of Washington, Ga., Grimaud has worked at Wyatt Early Harris Wheeler for 17 years, starting in family law. She recently transitioned into the firm’s civil litigation area. She considers this transition her top professional accomplishment.

“Taking on new tasks and learning new things within our firm has been a great accomplishment for me,” she says. “In addition to performing day-to-day legal tasks, I now fill in as our backup bookkeeper and I really enjoy that.”

Grimaud is a mother and grandmother, and takes pride in her kids and grandkids.

She loves being outdoors, enjoying nature and its beauty.

“Being outside is a great stress reliever for me,” she says. “I am in awe of each new sunrise and sunset.”

Grimaud is also involved in her local Homeowners Association. She has served four years as president and is always looking for new opportunities to make the HOA more efficient for homeowners.

She enjoys I also enjoy crafting, cooking and home decorating and hopes to try her hand at woodworking in the future.

“I like to create things and I like to make things better,” she says.

Erica Cooke, a longtime paralegal at Peniston Deason of Charlotte, is credited with helping the firm maintain its prosperity during the COVID-19 pandemic. Working with IT professionals, she helped establish remote operations and set up remote systems to maintain communication with clients.

Vicky Grimaud is passionate about her work and clients, and she enjoys a good challenge.

HUMAN RESOURCES MANAGER & DOCUMENTS MANAGER

CRYSTAL JONES

NICKI PARNELL

PARALEGAL TICKLE LAW OFFICE LOUISBURG, N.C.

Crystal Jones manages all things DEI at Parker Poe, a passion project and role that is perfect for her skills.

She has been with the firm for 24 years, starting as a legal professional assistant. She served on the firm’s DEI Committee for about 17 years and was promoted to DEI manager in 2021. She is the main point of contact for all DEI activities at Parker Poe, including cultural awareness alerts and programming, training, minority law events, minority client events, and com munity service days.

A self-described people person, Jones loves her role.

“My favorite aspect of my job is interacting with people, from hearing success stories, to being a listen ing ear and providing support to someone who may need it,” she says. “I enjoy being with our attorneys and staff at Parker Poe, as well as other in the DEI space who share the same passion for the work we do.”

In addition, to her DEI work, Jones serves on Parker Poe’s Recruiting and Commu nity Service

Committees. She also manages the firm’s annual Community Service Day for all eight offices and manages the firm’s combined giving campaign for the United Way of Central Carolinas and the Arts & Science Council.

Jones says advancing into firm management is her top professional accomplish ment.

“In the early years I showed up at Parker Poe meetings and events when it was not typical for staff to do so,” she says. “Eventually, my voice was heard which in turn led to me taking on newer and bigger roles, including Manager of Diversity, Equity and Inclusion for the firm.”

To relax and unwind, Jones enjoys playing poker, watching Dallas Cowboys football and UNC Tar Heels basketball.

JASON STILES

Helpful. Reliable. Encouraging. Uplifting. These are all the words that have described Jason Stiles, office services manager in the Wilmington, N.C., office of Cranfill Sumner.

Before joining the firm, Stiles served a four-year enlistment in the U.S. Marine Corps and earned a bachelor’s degree from The Master’s University. He says the leadership skills and attention to detail he acquired in the USMC have given him the skills to organize and streamline the services department.

One of his top accomplishments is the career development program he created for the firm’s office services assistants, typically college-aged employees who are wrestling with career choices.

“Each quarter, I invite one of the department heads to share their personal story, explain what they do, and connect that to the importance of the OSA position,” he says. “The result is exposure to careers like marketing, human resources, IT, finance, and others as the young people plan for their future and add value to their present positions.”

Stiles has also conducted trainings on computer programs to support of the firm’s paperless initiative. He developed and shared a progress tracker with the staff across the firm. These tasks contribute to Stiles’ overall job satisfaction.

“My favorite aspect of the job is helping others,” he says. “My position exists to make others more profitable, more efficient, or more skilled than they could be on their own, and I find joy doing that.”

When Stiles isn’t working, he enjoys family time.

“People are my fuel, and I love spending time with my wife, our children, and often friends while watching football, smoking meat, baking bread, or brewing a fresh cup of single-origin, locally roasted coffee,” he says.

For Parnell, the appreciation is palpable, and that’s

favorite aspect of her job.

“I have worked at different jobs and although I am thankful for each one of them as they have all been a part of my career growth, I have never felt appreciated for what I bring to the table like I do here at Tickle Law Office,” she says. “Appreciation goes a long way for an employee.”

Parnell has an associate degree in paralegal stud ies from Vance-Granville Community College in Lou isburg. Her favorite hours outside of work are those spent with her husband, whether relaxing or working on a project together.

“We enjoy home renovations and watching our visions come to life,” she says. “My job isn’t something I dread. I really enjoy what I do and the people I work with, so it doesn’t take much to unwind from the day.”

Parnell says life got in the way of her education, and she continuously put school on the back burner. She’s most proud of going back to college and finishing her degree.

“By the grace of God and with my husband and family’s support I was able to push through and complete the paralegal program at Vance-Granville,” she says. “I was tired of feeling I had no options in my career decisions, was tired of feeling stuck, and I feel like my degree changed that for me. I love what I do now, even on the most challenging days.”

ELLEN SWYSCHTCH

LEGAL ASSISTANT ANDERSON JONES RALEIGH, N.C.

She works at Anderson Jones, where managers call her contributions to the firm and the community “invaluable” because her ability to manage, organize and maintain every aspect of the practice with ease helps the firm provide clients with high quality profes sional services.

For Swyschtch her job is a labor of love, and she especially enjoys working with her colleagues.

“Everyone at Anderson Jones truly cares about everyone else,” she says. “We are the epitome of the phrase, ‘teamwork makes the dream work.’”

Originally from Abilene, Texas, Swyschtch started her career as a hostess and eventually was promoted to assistant general manager of a hotel restaurant.

She moved on to a role as the administrative assistant to the executive director of a non-profit organization and later spent several years as the lead service representa tive for Eastman Kodak before becoming a full-time caregiver to her husband’s grand mother who had dementia. After the grandmother’s passing, Swyschtch resumed her career.

“When I joined Anderson Jones as an administrative assistant in 2011, I started learning the ropes of the civil litigation world and eventually became a paralegal with the firm, which I consider my top professional achievement,” she said. “It allows me to do what I do best, work behind the scenes to help people find solutions to problems they might otherwise be unable to resolve.”

Swyschtch, a mother and grandmother, unwinds by reading thrillers, mysteries, sci-fi, and fantasy works.

“I also love a good true crime podcast,” she says.

Nicki Parnell is known for her ability to take charge and get things done at the Tickle Law Office where she is a paralegal. She’s credited with enabling the firm to grow like never before.

her

Ellen Swyschtch has parlayed her background in customer service into a successful career as a legal assistant. She is known for her dedication to work, her competence and her joyful demeanor.

Jensen for the state; Marilyn Ozer for defendant. 2022-NCSC-111

Constitutional

Sovereign Immunity – Alabama State University – N.C. Recruitment – Labor & Employment

Even though each state is immune from suit in its sister states’ courts, since (1) an Alabama state university registered as a nonprofit corporation in North Carolina, (2) G.S. § 55A3-02(a)(1) says that such corporations have the same power as an individual to sue and be sued, and (3) the uni versity engaged in the commercial en deavor of recruiting North Carolina residents to enroll in online courses which would be taken while the stu dents remained in North Carolina, Alabama waived its sovereign immu nity with respect to a sexual harass ment suit brought by one of its North Carolina employees.

We reverse the Court of Appeals’ ruling that sovereign immunity bars plaintiff’s suit. Remanded.

Concurrence

(Berger, J.) The role of commer cial versus governmental functions defines the scope of a waiver of sov ereign immunity. While Alabama has not waived all sovereign immunity in North Carolina, as to its business activities in North Carolina related to the operation of its university for marketing and recruiting – the area in which plaintiff worked – Alabama has waived sovereign immunity.

Dissent

(Barringer, J.) Under Franchise Tax Bd. of California v. Hyatt, 139 S. Ct. 1485 (2019), Alabama carries its sovereign immunity into the courts of North Carolina. Alabama’s constitu tion clearly states that “the State of Alabama shall never be made a de fendant in any court of law or equity.” Ala. Const. art. I, § 14. Since there is no clear indication that Alabama has consented to be haled into North Carolina’s courts, and since waiver is strictly construed, the defendantuniversity is entitled to sovereign im munity.

Farmer v. Troy University (Law yers Weekly No. 011-112-22, 36 pp.) (Anita Earls, J.) (Philip Berger, J., concurring) (Tamara Barringer, J., joined by Paul Newby, C.J., dissent ing) Appealed from Cumberland County Superior Court (Andrew Heath, J.) On discretionary review from the Court of Appeals. Harvey Kennedy and Harold Kennedy for plaintiff; Benjamin Fryer for defen dants. 2022-NCSC-107

Civil Practice

Personal Jurisdiction – Corporate Re organizations – Fraud – Due Process – Environmental

After paying hundreds of mil lions of dollars in settlements be cause of its contamination of the environment with long-lasting and dangerous chemicals, and knowing that it was facing still more liabil ity therefor, defendant E. I. DuPont de Nemours & Co. (Old DuPont)

undertook several corporate reor ganizations and other maneuvers. The two Delaware defendant-appel lants are part of the result of these maneuvers. Although appellants themselves lack direct contacts with North Carolina, they are neverthe less subject to the jurisdiction of our courts because (1) they expressly as sumed Old DuPont’s liabilities relat ed to one of those chemicals, which was manufactured in Fayetteville, and (2) the complaint sufficiently alleges that Old DuPont fraudu lently engaged in the reorganization transactions that created appellants to prevent the state and other credi tors from holding the company fully liable.

We affirm the Business Court’s denial of appellants’ motion to dis miss for lack of personal jurisdic tion.

State ex rel. Stein v. E.I. DuPont de Nemours & Co. (Lawyers Weekly No. 011-113-22, 28 pp.) (Anita Earls, J.) Appealed from Cumberland County Superior Court (Michael Robinson, J.) Ryan Park, Daniel Hirschman, Mark Bernstein, David Zalman, Levi Downing, Elizabeth Krasnow, Julia Schuurman and Lauren Shah for plaintiff; Robert Marcus, Bailey King, Brian Rowl son, Katherine Hacker and Joshua Ackerman for defendants. 2022NCSC-110

Civil Practice

Appeals – Standard of Review – Rule 12(b)(6) Order – Findings & Conclu sions

On appeal, a trial court’s decision to grant a motion to dismiss under N.C. R. Civ. P. 12(b)(6) is reviewed de novo; that is, the appellate court considers whether the complaint states a claim that may be granted. Even if findings of fact and conclu sions of law were appropriate in the context of a 12(b)(6) motion, since neither party requested that the trial court make such findings and conclusions, N.C. R. Civ. P. 52(a) (2) did not require the trial court to make findings and conclusions.

We vacate the Court of Appeals’ decision, which remanded the mat ter to the trial court to make find ings of fact and conclusions of law. We remand to the Court of Appeals to address whether the complaint states a claim upon which relief may be granted.

Taylor v. Bank of America, N.A. (Lawyers Weekly No. 010-114-22, 6 pp.) (Tamara Barringer, J.) Ap pealed from Mecklenburg County Superior Court (Lisa Bell, J.) On appeal from the Court of Appeals. William Robinson, Dorothy Good ing, Robert Orr, Samantha Katen and Caitlyn Miller for plaintiffs; Bradley Kutrow, James McGarry and Keith Levenberg for defendant. 2022-NCSC-117

Criminal Practice

Obstruction of Justice – Lies to SBI –

Investigation Steps

Defendant was a district attorney. While investigating a complaint that one of defendant’s employees was not working the hours for which she was being paid, an agent of the State Bureau of Investigation interviewed defendant. Based on the agent’s tes timony, a jury could determine that defendant’s lies – that the employee

worked on conflict cases and on spe cial projects – contributed to the agent changing the steps and process of the investigation and thereby ob structed justice.

We reverse the Court of Appeals’ vacation of defendant’s conviction for felony obstruction of justice, and we reinstate that conviction.

The SBI agent did not testify that defendant said the employee was “currently” working on conflict cases. Nonetheless, given that the investigator explained to defendant that the investigation’s purpose was to assess whether the employee was being paid for hours that she was not working, a reasonable jury could conclude that defendant’s statement was false.

Dissent (Earls, J.) A falsehood that merely requires additional investigation is not the touchstone of the inquiry regarding whether an obstruction existed. Rather, the inquiry turns on whether the content of the false statement caused investigators to be misdirected or delayed in a tan gible way. The state’s evidence does not explain how defendant’s state ments forced investigators to pursue routes of inquiry that they would not have pursued had the statements never been made or otherwise de layed them in their efforts to deter mine whether his employee actually worked the hours for which she was paid.

State v. Bradsher (Lawyers Week ly No. 010-115-22, 33 pp.) (Tamara Barringer, J.) (Anita Earls, J., joined by Michael Morgan, J., dissenting) (Philip Berger, J., not participating) Appealed from Wake County Supe rior Court (Paul Ridgeway, J.) On discretionary review from the Court of Appeals. James Doggett for the state; Glenn Gerding and Michele Goldman for defendant. 2022-NCSC116

Real Property

1982 Condominium – Unpaid Assess ments – Foreclosure – Power of Sale

Even though the appellant-condo minium was formed prior to the en actment of the North Carolina Con dominium Act in 1985, the power of sale permitted by G.S. § 47C-3-116(f) applies to all condominiums created in this state on or before October 1, 1986, with respect to events and cir cumstances occurring after October 1, 1986, “unless the [condominium’s] declaration expressly provides to the contrary.” The respondent-owner’s failure to pay assessments occurred in 2018, and, while the condomini um’s 1982 declaration expressly al lows for a foreclosure of a claim of lien, it does not expressly provide that the Condominium Act’s power of sale is inapplicable.

We reverse the Court of Appeals’ decision, which vacated the trial court’s order authorizing sale, and we remand to the Court of Appeals to address respondent’s remaining argu ment that he was not in default.

In re Foreclosure of a Lien by Ex ecutive Office Park of Durham Asso ciation, Inc. against Rock (Lawyers Weekly No. 010-116-22, 8 pp.) (Ta mara Barringer, J.) Appealed from Durham County Superior Court (John Dunlow, J.) On discretionary review from the Court of Appeals. Matthew Waters and Hope Derby Carmichael for petitioner; Mark Hayes for re

spondent; Cynthia Jones for amicus curiae. 2022-NCSC-106

Domestic Relations

Parent & Child – Dependency – Time of Petition’s Filing – Ineffective Assis tance Claim – Reunification Cessation

Even though family placements were suggested for baby “Lea,” no home studies had been completed for those relatives at the time the petition was filed. Moreover, when the peti tion was filed, paternity had not been established and the whereabouts of Lea’s father were unknown. The trial court correctly found that, at the time the petition was filed, the respondentmother “did not provide any other alternative[] placements with family members who presented themselves to the department, and [respondentmother] was unable to provide any information as it related to [respon dent-father]. . . .” The trial court was not required to consider post-petition events and did not err in adjudicating Lea a dependent juvenile.

The trial court did not err in adju dicating Lea abused, neglected and dependent, nor did the trial court err in eliminating reunification efforts with respondent-mother. Respondentmother’s counsel provided effective assistance. We reverse the decision of the Court of Appeals and remand for further proceedings.

At an adjudication, disposition and permanency planning hearing, moth er’s counsel did not object to the trial court considering medical records that had been introduced at a prior hear ing. Counsel also did not object when the same evidence – that mother had burned Lea’s feet and left her unat tended on the porch – was admitted via the testimony of a DSS investiga tor.

The record contains an explanation for the failure of respondent-mother’s counsel to lodge the objection that respondent-mother now claims should have been made (counsel declined to object because the medical records were “already in evidence”). In addi tion, we note that neither this court nor the Court of Appeals has directly addressed the issue of whether a trial court is entitled to judicially notice evi dence that has previously been admit ted into evidence at a hearing held for the purpose of determining whether a juvenile should continue in non-se cure custody at a subsequent adjudi cation hearing, with reasonable argu ments in support of and in opposition to the admissibility of this evidence having been advanced in the parties’ briefs before this court. For that set of circumstances, we are unable to con clude that mother’s counsel’s conduct was “unreasonable” given prevailing professional norms. As a result, we hold that mother’s ineffective assis tance of counsel claim lacks merit.

Although it appears that the trial court impermissibly relied on the same conduct to justify both Lea’s adjudication and a cessation of reuni fication efforts, the court could have ceased reunification efforts under G.S. § 7B-901(c)(3)(iii), which allows a cessation of reunification efforts when a parent “has committed a felony as sault resulting in serious bodily injury to the child. . . .” On remand, the trial court is instructed to enter appropri ate findings addressing the issue of whether efforts to reunify mother with Lea should be ceased pursuant to § 7B-901(c).

Reversed and remanded.

In re L.N.H. (Lawyers Weekly No. 010-117-22, 19 pp.) (Philip Berger, J.) Appealed from Guilford County District Court (Marcus Shields, J.) On appeal from the Court of Appeals. Mercedes Chut for petitioner; Mat thew Wunsche for guardian ad litem; Jeffrey Miller for respondent. 2022NCSC-109

Criminal Practice

Firearm Possession – Jury Instruc tions – Justification – Recklessness

Defendant had already broken up a fight at Oakdale Apartments and been told by gang members that he wasn’t welcome there, yet defendant decided to return on the same day and to remain there for 25 minutes. Defendant was not entitled to a jury instruction on the affirmative de fense of justification to the charge of possession of a firearm by a felon be cause defendant could not show the second element of such a defense: that defendant had not negligently or recklessly placed himself in a situation where he would be forced to engage in criminal conduct. Giv en the prior physical confrontation, threats and comments by defen dant’s brother (an Oakdale resident) that he was willing to fight again, defendant should have known that his continued presence in the area could be the catalyst for another confrontation.

We reverse the Court of Appeals’ award of a new trial.

Dissent (Morgan, J.) Defendant broke up a fight in which gang members were assaulting his brother, and defen dant took his brother to defendant’s home. Thereafter, the brother’s wife called the brother, concerned for her safety, and asked him to return home to Oakdale Apartments.

Defendant accompanied his brother “just to make sure that no fights happened.” The visit was peaceful at first. But then the origi nal assailants, accompanied by Lon nie Smith – who defendant knew had a reputation for “being pretty brutal” – approached.

After the exchange of a few words, Lonnie began punching defendant. During the altercation, defendant fell; saw a gun on the ground; heard his brother say, “Watch out. He got a gun”; heard Lonnie’s brother say, “Pop him”; and saw Lonnie reach for the gun. Although he was a convict ed felon, defendant grabbed the gun.

Viewing the evidence in the light most favorable to defendant, as we must, he was entitled to a jury in struction on justification.

State v. Swindell (Lawyers Week ly No. 010-118-22, 16 pp.) (Philip Berger, J.) (Michael Morgan, J., joined by Robin Hudson & Anita Earls, JJ., dissenting) Appealed from Bladen County Superior Court (Jeffery Carpenter, J.) Marc Sneed for the state; Leslie Rawls for defen dant. 2022-NCSC-113

Tort/Negligence

Fraud – Trade Secret Misappropria tion – Post-Partum Compression Gar ments

Plaintiff developed post-partum compression garments and a busi ness model to have them covered by buyers’ health insurance. Based on emails among defendants’ employ

ees concerning their interest in the same market, plaintiff has made out a fraud claim arising from a promise made by defendant Aero flow’s emerging markets director to keep plaintiff’s information confi dential.

Defendants’ motion for summary judgment is granted in part and de nied in part.

Fraud

During a phone call on July 19, 2018 (the July 19 Call), plaintiff’s principal, Don Francisco, pitched plaintiff and its products to Evan Israel, defendant Aeroflow’s direc tor of emerging markets. Francisco explained that he had designed plaintiff’s “Maternity Compression Garments” to qualify for health in surance coverage as durable medi cal equipment (DME). Francisco claims that he and Israel came to an oral agreement during the July 19 Call whereby plaintiff would provide Aeroflow with its products, marketing material, and insur ance coding information and, in ex change, Aeroflow would market the Maternity Compression Garments through its national distribution channels, process the associated insurance claims, and pay plain tiff for shipments received. Fran cisco additionally claims that he and Israel, on behalf of Aeroflow, specifically agreed to maintain the confidentiality of plaintiff’s compre hensive business plan.

In its fraudulent misrepresen tation claim, plaintiff alleges that this promise of confidentiality was made with the intent to break the promise.

In the week leading up to the July 19 Call, defendants’ employ ees exchanged emails, which a jury could decide evidenced a plan by de fendants to launch their own line of maternity compression garments. A jury could reasonably infer from these emails that defendant Motif was planning to develop its own post-partum compression products after initially marketing plaintiff’s products. Furthermore, the pre-call e-mails and Israel’s contradictory deposition testimony create an is sue of fact as to whether or not Isra el knew that Aeroflow was engaged in internal discussions about enter ing into the maternity compression market prior to the July 19 Call.

Plaintiff’s fraudulent conceal ment claim is premised on Aero flow’s alleged concealment of a “plan to use [plaintiff’s] compre hensive business plan to create and sell a competing product”, rather than mere concealment of a plan to compete. As such, Israel’s alleged promise “not to disclose [plaintiff’s] specialized plans . . . to [plaintiffs] competitors and/or potential com petitors[ ]” can be viewed as an affirmative act taken by Aeroflow to conceal its alleged intent to use plaintiff’s business model for its own competitive advantage.

Moreover, a jury could infer that other evidence in the record, when viewed in the light most favorable to plaintiff, constitutes affirma tive steps by defendants to conceal a plan to use plaintiff’s informa tion to design and sell a competing product. The record contains sev eral actions taken by defendants shortly after the July 19 Call and unbeknownst to plaintiff from which an intent to conceal may also be inferred. These acts include: (1) defendants’ confirmation that the Maternity Compression Garments

were not protected by patent; (2) de fendants’ identification of plaintiff’s Chinese manufacturing facility; (3) defendants’ invitation to Francisco to train their staff on plaintiff’s products despite an internal asser tion that the relationship would not “last long before bringing this in house”; and (4) Motif director Bran don Fonville’s purchase of plain tiff’s products from Amazon “to get [them] knocked off[.]”

The record, viewed in the light most favorable to plaintiff, creates an issue of fact as to whether de fendants fraudulently concealed a plan to use plaintiff’s comprehen sive business model to design and market a competing product.

Other Issues

Plaintiff’s claim of misappropria tion of trade secrets fails because, not only were the individual compo nents of its business plan publicly available, but other DME distribu tors were also publicly practicing plaintiff’s entire purported com prehensive business plan prior to plaintiff making contact with Aero flow.

Plaintiff’s unfair competition claims fail because plaintiff has failed to show that Aeroflow ever falsely designated plaintiff’s prod ucts as Motif’s.

Motion granted in part, denied in part.

Vitaform, Inc. v. Aeroflow, Inc. (Lawyers Weekly No. 020-065-22, 59 pp.) (Louis Bledsoe, C.J.) Jeffrey Smith, John DeVoss and Jake Snid er for plaintiff; Joseph Schouten, Hayley Wells and Jordan Spanner for defendants. 2022 NCBC 65

Tort/Negligence

Breach of Fiduciary Duty – PLLC Members & Officer

While defendant Stanley Monroe may have wielded power as an of ficer of defendant Mindpath Care Centers North Carolina, PLLC, he was not a member-manager, and there is no allegation that plaintiff was stripped of her authority as a member-manager by the PLLC’s operating agreement. Furthermore, plaintiff’s conclusory allegation that Stanley and defendant Yvonne Mon roe together controlled Mindpath lacks factual support in her com plaint. Plaintiff has failed to allege that the individual defendants owed her a fiduciary duty.

The court grants defendants’ mo tion to dismiss plaintiff’s claims of breach of fiduciary duty and con structive fraud.

Where plaintiff does not allege that Yvonne, or even Stanley and Yvonne together, held a controlling interest in Mindpath, Richardson v. Utili-Serve, LLC, 2020 NCBC LEX IS 135, at **11 (N.C. Super. Ct. Nov. 17, 2020), does not support plain tiff’s claim.

A North Carolina limited liability company does not owe fiduciary du ties to its members. Consequently, plaintiff cannot assert a claim for constructive fraud against Mind path.

As for defendant MISO, LLC – the Monroes’ company that performed billing and administrative functions for Mindpath – there is no relation ship between plaintiff and that enti ty that would give rise to a fiduciary duty.

Hartsell v. Mindpath Care Cen ters, North Carolina, PLLC (Law yers Weekly No. 020-066-22, 16 pp.) (Julianna Theall Earp, J.) Scott Meyers for plaintiff; Jackson Moore and Amelia Serratt for defendants. 2022 NCBC 66

Labor & Employment

Contract Termination – Reduced Wages – Waiver

After the plaintiff-employees gave notice and were working the notice period required by their contracts, the defendant-employer unilaterally reduced their salaries. When plain tiffs continued working throughout the notice period after defendant reduced their salaries, they waived their rights to their pre-notice salary amounts.

The court grants summary judg ment to plaintiffs on part of their claim under the North Carolina Wage and Hour Act (NCWHA). The court pierces the employer’s corporate veil and holds defendant Ciszek jointly liable. The court grants summary judgment to defendants on plaintiffs’ remaining claims. The court grants summary judgment to plaintiffs on defendants’ counterclaim for breach of contract.

Facts

The individual parties are neona tologists. They worked for defendant Cape Fear Neonatology Services, P.A., which was wholly owned by de fendant Ciszek.

Although plaintiffs’ written em ployment contracts did not call for them, the plaintiffs all received raises and bonuses during the years they worked for the practice. However, af ter a contentious meeting about Cis zek’s anticipated retirement, plain tiffs notified defendants that they were terminating their employment contracts.

While plaintiffs were working their contractually required notices, defendants unilaterally reduced their salaries to the amounts set out in the contracts they had signed years ear lier. The memo line on their reduced paychecks read, “Compensation has been adjusted to meet the terms of your employment agreement.” Plain tiffs nevertheless continued to work their notices.

Discussion

Although each plaintiff had a oneyear written contract, since the con tracts were renewable year-to-year until terminated by either party, the contracts were of indefinite du ration, and plaintiffs were employed at will.

There is no evidence that the practice provided any new consid eration to plaintiffs beyond their reduced salaries in exchange for plaintiffs’ pledge to work during the notice period. As a result, the prac tice’s reduction in plaintiffs’ salaries without plaintiffs’ consent breached plaintiffs’ modified employment con tracts as a matter of law.

However, a party may waive the breach of a contractual provision or condition without consideration or estoppel if (1) the waiving party is the nonbreaching party, (2) the breach does not involve total repudi ation of the contract so that the non breaching party continues to receive some of the bargained-for consider ation, (3) the innocent party is aware

of the breach, and (4) the innocent party intentionally waives his right to excuse or repudiate his own per formance by continuing to perform or accept the partial performance of the breaching party. Wheeler v. Wheeler, 299 N.C. 633 (1980).

First, plaintiffs did not breach their employment agreements. Each plaintiff completed working his or her 90-day notice period.

Second, plaintiffs received some of the bargained-for consideration under the modified contracts—i.e., salary payments at the original con tract rate—so the breach was not a total repudiation of each plaintiff’s employment contract.

Third, plaintiffs were aware of the breach. Each plaintiff has acknowl edged receiving the memo written on the 31 January 2019 paychecks and thereafter accepted the reduced sal ary payments.

Fourth, plaintiffs continued to work for the practice after the prac tice breached their employment con tracts.

Although plaintiffs contend that they believed they were contractu ally obligated to work the remainder of their 90-day notice periods and felt ethically responsible to continue caring for the infants in the Cape Fear Valley Medical Center NICU, they knowingly accepted the prac tice’s partial performance in the face of the practice’s plain breach when that material breach excused their further performance as a matter of law.

Therefore, plaintiffs waived de fendants’ reduced-salary-based breach of plaintiffs’ employment contracts as a matter of law.

Other Issues

Bonuses were discretionary and depended upon periodic evaluations made by Ciszek and the practice’s accountant. Moreover, plaintiff Gal laher’s bonus depended upon Ciszek receiving a bonus, while plaintiffs Coggin’s and Cameron’s bonuses de pended upon the practice generating a “bonus pool” to be split among the practitioners. Since Ciszek received no bonus in 2018 or 2019, and since the bonus pool for those years was $0, plaintiffs were not entitled to bonuses for 2018 or 2019.

The NCWHA requires that em ployers inform their employees in writing or in a posted notice at least one pay period before any decrease in promised wages takes effect. G.S. § 95-25.13(3). The law prohibits em ployers from retroactively decreasing wages.

An NCWHA-qualifying notice did not precede the practice’s 31 Janu ary 2019 reduced salary payments to plaintiffs; therefore, the practice plainly violated § 95-25.13(3) in the amount of the unpaid salary with held by the practice from each plain tiff’s paycheck based on the plaintiff’s prevailing rate of pay on 31 January 2019.

However, the practice’s January 31 notice, stating “Compensation has been adjusted to meet the terms of your employment agreement,” pro vided the NCWHA-required notice all future salary payments; therefore, the court dismisses plaintiffs’ NC WHA claim with prejudice to the ex tent that it is based on reduced salary payments after 31 January 2019.

The covenants not to compete in plaintiffs’ employment contracts for bade them from going to work for a competitor of the practice. Plaintiffs did not breach the covenants when they went to work for a hospital.

Motions granted in part and de nied in part.

Gallaher v. Ciszek (Lawyers Week ly No. 020-067-22, 50 pp.) (Louis Bled soe, C.J.) James McLean and Lonnie Player for plaintiffs; Terry Hutchens and Natasha Barone for defendants. 2022 NCBC 67

erly and (2) after replacement of the encoder, the facility’s digital commu nication system (DCS) controlling the line reverted to manual mode and instructed the system to reset the ce ment setting to zero. According to the insured, the EB insurers focused sole ly on the encoder – and not the DCS –because of the possibility of subroga tion from the encoder’s manufacturer.

CorporateIndividual Actions – Standing – Lim ited Partnership Agreement

In his individual capacity, the plaintiff-limited partner seeks to bring an action challenging the gen eral partner’s purported violation of the partnership agreement by enter ing into contracts that changed the ownership of an ambulatory surgery center. Plaintiff asserts that he can bring this claim individually because the partnership agreement gives him, as a limited partner, the right to vote on any amendment to the partner ship agreement. However, acceptance of plaintiff’s argument would give him standing to bring an individual action for any alleged breach of the agreement.

The court grants judgment on the pleadings for defendants on all but two of plaintiff’s individual claims. The court also grants defendants’ mo tion for judgment on the pleadings as to plaintiff’s claim for punitive dam ages without prejudice to plaintiff’s right to seek punitive damages as a remedy.

The court declines to grant judg ment on the pleadings as to plaintiff’s individual claim for tortious interfer ence with a contractual relationship because it is based on a contract that is not contained in the record.

Plaintiff has standing to seek a de claratory judgment that defendants violated the applicable version of the limited partnership agreement.

Woodcock v. Cumberland Coun ty Hospital System, Inc. (Lawyers Weekly No. 020-068-22, 22 pp.) (Mark Davis, J.) Douglas Harris for plain tiff; Marla Reschly, Susan Hackney, Daniel McClurg, Jonathan Schulz and Christopher Lam for defendants. 2022 NCBC 68

Insurance

Equipment Breakdown – Iron Ore Processing – Coverage Denial –Pleadings Amendment – Deposition Testimony

Based on an investigator’s report, the defendant-insured may add a counterclaim for unfair trade prac tices arising out of its insurers’ failure to investigate a possible cause of the insured’s loss.

The court grants in part and denies in part the insured’s motion to amend its counterclaims. The court denies the insured’s motion for partial sum mary judgment.

The insurers of an iron ore process ing plant seek declaratory judgments as to whether their policies provide coverage for an incident in which 2,400 metric tons of iron ore were ru ined when iron ore pieces were sent into a reactor without the required ce ment coating.

The defendant-insured seeks to add a claim of unfair trade practices against its equipment breakdown (EB) insurers because, the insured asserts, it has learned that the EB insurers’ investigator alerted them to the possibility that (1) an encoder might have been operating improp

The proposed per se unfair trade practices claim, based on G.S. § 58-6315(11)(1), is futile because the insured has not alleged reliance on a misrep resentation.

However, the facts alleged are suf ficient to give rise to a claim that the EB insurers failed to conduct a rea sonable investigation based on all available information prior to deny ing the claim.

Although more than four years have passed since the denial of the claim, the unfair trade practices counterclaim is not time barred. The proposed claim – like the ones already asserted – emanates from the EB in surers’ investigation and decision to deny the insured’s insurance claim. The difference now is that the EB in surers’ handling of the claim is also at issue.

The EB insurers had sufficient notice of the transactions and occur rences giving rise to the proposed claim for it to relate back to the ini tial filing of the insured’s other claims regarding the same events. Thus, the statute of limitations does not render the proposed amendment futile.

EB insurer XL Insurance Com pany’s Rule 30(b)(6) deponent’s testi mony as to the reason for the denial of coverage focused on the absence of any equipment breakdown. His testimony did not establish that XL denied coverage because of a faulty design in the insured’s digital com munication system (DCS) or that cer tain subsections of the policy’s defini tion of “Breakdown” do not apply to this case. The court declines to grant partial summary judgment on these issues.

Motions granted in part, denied in part.

Aspen Specialty Insurance Co. v. Nucor Corp. (Lawyers Weekly No. 020-069-22, 29 pp.) (Julianna Theall Earp, J.) David Levy, Rob Wilson, Da vid Heiss and Peter Kanaris for plain tiffs; Jonathan Gilmartin, Scott Ty ler, Harold Flanagan, Meghan Grant, Alice Duplechain, Thomas Flanagan and Camille Gauthier for defendants; Kimberly Kirk, Kathleen Burchette, Robert Santoro, Aidan McCormack and Benjamin Shuman for interven ing plaintiffs. 2022 NCBC 69

Consumer Protection

Medical Records Costs – Third-Party Contractor – Statutory Limits

The plaintiff-patients complain that they were required to pay more for copies of their medical records than S.C. Code Ann. § 44-115-80 al lows healthcare providers to charge. However, plaintiffs have not sued their healthcare providers; instead, they have sued the defendant“information management compa nies” that retrieve medical records from healthcare providers and trans mit them to requesting patients. By its terms, § 44-115-80 does not apply to these defendants.

We affirm the district court’s dis missal of plaintiffs’ complaint.

According to plaintiffs, because it

would not be “economically feasible” to bring direct claims against the providers who own plaintiffs’ medical records, they must be allowed to bring a class action against companies (like defendants) that serve a bevy of providers. But the Patient Records Act says what it does, and plaintiffs identify no South Carolina authority for the proposition that it is absurd to require claims to be brought against certain defendants even when it may be more convenient to sue others.

Thompson v. Ciox Health, LLC (Lawyers Weekly No. 001-109-22, 7 pp.) (Toby Heytens, J.) No. 21-2102. Appealed from USDC at Charleston, S.C. (Bruce Hendricks, J.) James Bradley, Nina Fields and Caleb Hodge for appellants; Gilad Yair Bendheim, Victor Rawl, Brittany Bilium and Jay Lefkowitz for appellees. 4th Cir.

Domestic Relations

Defendant titled his 2016 motion a “Motion for Entry of [QDROs]”; how-

ever, the 2005 consent order which required the entry of qualified domestic relations orders in this case required plaintiff to make a distributive award to defendant from plaintiff’s retirement accounts. Since defendant’s motion seeks further relief, i.e., passive gains, defendant’s motion is actually a motion to amend the judgment pursuant to N.C. R. Civ. P. 59. Rule 59 motions must be filed within 10 days of the entry of judgment, so defendant’s motion was not timely filed.

We affirm the trial court’s dismissal of defendant’s motion.

A distributive award is a sum certain and does not include gains and/ or losses.

Moreover, a party attacking a consent judgment must show that consent was not in fact given or that consent was obtained by mutual mistake or fraud. Defendant does not allege either that consent was not in fact given or that the 2005 consent order was obtained by mutual mistake or fraud.

Bracey v. Murdock (Lawyers Weekly No. 011-178-22, 7 pp.) (Valerie Zachary, J.) (Darren Jackson, J., concurring in the result only without separate opinion) Appealed from Wake County District Court (Brian Ratledge, J.) Nancy Grace, Kelley

Cash and Zach Underwood for plaintiff; Thomas Currin for defendant. 2022-NCCOA-705

Domestic Relations

Parent & Child – Support Modification – Income Suppression – Bad Faith

The defendant-Father’s close friend and part owner of Father’s prior employer testified that (1) the employer had laid Father off less than a week before the hearing on the plaintiff-Mother’s motion to modify child support, (2) none of the employer’s other 120 employees had been laid off, (3) Father’s performance was not a factor in the decision to lay him off, (4) the employer was advertising several lower-wage openings, and (5) Father was qualified for all of the openings but had not applied for any of them. Father (a) violated the Child Support Guidelines and local court rules by failing to update his financial information and (b) testified that he planned to operate his own masonry business, had no intention of seeking other employment or unemployment benefits, and had an income of $0. Given this evidence, the trial court

could find that Father was intentionally suppressing his income in bad faith.

We affirm the trial court’s order increasing Father’s monthly child support obligation to $1140, with a monthly arrearage payment of $363.

Even if, as Father argues, the trial court could have ignored Father’s amended affidavit showing a $0 income and instead based its decision on Father’s business income, Father failed to provide current documentation as to his business income and expenses, as he was required to do by the local rules and Child Support Guidelines. The trial court had the discretion to impute income based on the best information available regarding Father’s recently terminated employment. The trial court also noted that it did not find Father’s claim of being laid off immediately prior to the child support hearing credible and stated several reasons for this credibility determination.

Because the trial court made a reasoned decision to impute income, we will not disturb this decision on appeal. On a more fundamental level, Father cannot now claim the trial court should have ignored the very

amended affidavit he presented – and swore to the truth of – on the eve of the hearing and instead ask the trial court to use his unsupported claims as to his business income.

Cash v. Cash (Lawyers Weekly No. 011-179-22, 27 pp.) (Donna Stroud, C.J.) Appealed from Cabarrus County District Court (Juanita Boger-Allen, J.) Richard Johnson for defendant; no brief for plaintiff. 2022-NCCOA-706

Civil Practice

Motions Practice – Gamesmanship –Landlord/Tenant – Commercial Lease

Where plaintiff’s counsel en gaged in gamesmanship – giving notice to a defense attorney he knew had withdrawn and failing to give the unrepresented defendants the notice required by court rules and the Rules of Civil Procedure –the trial court abused its discretion when it denied defendant’s motion for a continuance of the hearing on plaintiff’s motion for summary judgment.

We vacate the summary judg ment order and remand for further proceedings.

Concurrence

(Dietz, J.) Where the trial court clearly – and incorrectly – believed it lacked discretion to allow the in dividual defendant to testify at the summary judgment hearing, and where plaintiff never gave notice that it was seeking summary judg ment on defendants’ counterclaims, the summary judgment order should be vacated.

Dissent

(Tyson, J.) Although defendants argue that genuine issues of mate rial fact precluded summary judg ment, defendants failed to present any evidence in support of their ar gument.

Even if plaintiff’s affidavit in support of its summary judgment motion were not timely filed, since plaintiff’s complaint was veri fied and the allegations contained therein were sufficient to establish plaintiff’s claim, defendants were not prejudiced by the trial court’s consideration of the affidavit.

Even if the trial court improperly declined to allow the individual de fendant to testify at the summary judgment hearing, defendants can not show prejudice in the face of their admitted default on the par ties’ lease.

Finally, for three months af ter their former counsel withdrew and in the face of a dispositive mo tion, defendants failed to seek new counsel. They waived notice cannot

show any abuse of discretion by the trial court by their failure to do so and appear pro se. Defendant Obai ka, a non-lawyer, cannot represent the defendant-limited liability com pany in court against plaintiff’s claims or assert any of the LLC’s counterclaims. The trial court’s or der is properly affirmed.

D.V. Shah Corp. v. Vroom Brands, LLC (Lawyers Weekly No. 011-180-22, 39 pp.) (Darren Jack son, J.) (Richard Dietz, J., concur ring in the result) (John Tyson, J., dissenting) Appealed from Meck lenburg County Superior Court (Karen Eady Williams, J.) Carol Austin for plaintiff; Austin King and Caitlin Mitchell for defendant. 2022-NCCOA-708

Real Property

DOT Condemnation – Parking Area –Ownership – Prescriptive Easement

Although the defendant-landown er showed that its customers used a vacant lot for parking to visit defen dant’s businesses, the Department of Transportation showed that de fendant did not own the vacant lot, and defendant failed to show that it had a prescriptive easement over the vacant lot.

We affirm the trial court’s ruling that defendant had failed to estab lish a prescriptive easement in the vacant lot (the “parking island”).

In this condemnation case, as in others, DOT’s initial deposit was an estimated sum for just compen sation. As the deposited sum is not relevant to the issue of title and interests taken by DOT, the trial court did not err by failing to con sider the sum as evidence of de fendant’s interest in the parking island.

In an effort to tack the alleged period of adverse possession of the parking island, defendant present ed the affidavit of a former owner. The affidavit was presented for the first time during the hearing held pursuant to G.S. § 136-108. Al though defendant claims that it was unaware DOT was going to contest the prescriptive easement, the pur pose of the § 108 hearing is to “hear and determine any and all issues raised by the pleadings other than the issue of damages,” § 136-108, and the issue of whether defendant had a prescriptive easement to the parking island was raised in DOT’s pleadings.

Moreover, even if the trial court had abused its discretion in exclud ing the affidavit, defendant has failed to show any resulting preju dice. The former owner’s affidavit does not show that he owned the parking island for a length of time over 20 years or that his use of the

parking island was anything but permissive.

In addition to failing to show a 20-year span of use of the parking island, defendant failed to show that its use was adverse. While defendant presented evidence that its businesses posted directional signs on the parking island, the trial court found that there was no evidence that any signs were ever placed on the parking island re stricting parking to certain guests or customers. The trial court fur ther found no evidence that permis sion was ever sought by defendant to use the parking island or that the record owner ever consented to or objected to defendant’s use of the parking island.

The trial court’s findings support its conclusion that defendant failed to establish a prescriptive ease ment in the parking island.

Even though DOT’s estimated sum of just compensation included the prescriptive easement under the “extraordinary assumption” that defendant owned such an ease ment, DOT’s pleadings were not in consistent with its position at the § 108 hearing that defendant did not have a prescriptive easement over the parking island. From the initiation of this condemnation ac tion, DOT’s position has been that defendant did not own the parking island. DOT was not judicially es topped from claiming that defen dant does not have a prescriptive easement over the parking island.

Affirmed.

Department of Transportation v. Mountain Villages, LLC (Lawyers Weekly No. 011-181-22, 24 pp.) (Al legra Collins, J.) Appealed from Jackson County Superior Court (Jacqueline Grant, J.) Liliana Lo pez for plaintiff; Jonathan Dunlap and Jackson Bebber for defendant. 2022-NCCOA-709

Landlord/Tenant

Civil Practice – Hearing Notice –Attorney’s Fees – Subject Matter Jurisdiction

Even though, during defense counsel’s vacation, her staff failed to realize that this summary eject ment matter had been added to an amended calendar, since the attor ney received the calendar includ ing the hearing in this matter, the defendant-tenant received actual notice of the hearing. Even if local rules and the General Rules of Prac tice for the Superior and District Courts required earlier publication and distribution of the civil calen dar, it is questionable whether a violation of the general calendaring rules was error during the COVID pandemic. Moreover, the trial court

considered this issue and we can not say that it abused its discretion when it concluded that defendant’s notice argument failed to allege the sort of extraordinary circumstances and manifest injustice compelling relief under N.C. R. Civ. P. 60(b)(6).

We affirm the trial court’s denial of defendant’s Rule 60 motion. Given the lack of a meritorious defense, we decline to issue a writ of certiorari to consider the trial court’s grant of summary judgment to the plaintifflandlord.

Ordinarily, a question of subject matter jurisdiction may be raised for the first time on appeal. However, when there are issues of fact, the jurisdictional question of whether a landlord-tenant relationship exists must first be decided at the trialcourt level. Defendant’s claim that his oral month-to-month lease was with Lou Roman – rather than with plaintiff LouEve, LLC – must be ad dressed to the trial court through an appropriate motion under Rule 60(b) (4).

Dismissed in part; affirmed in part.

LouEve, LLC v. Ramey (Law yers Weekly No. 011-182-22, 14 pp.) (Richard Dietz, J.) Appealed from Haywood County District Court (Thomas Foster, J.) David Matney for plaintiff; Edward Bleynat and Matthew Giangrosso for defendant. 2022-NCCOA-710

Criminal Practice

Search & Seizure – Probationer’s Resi dence – Directly Related to Probation

Probationer Samantha Green, for the first time while on probation, tested positive for cocaine, THC, and opiates; a search of Green’s car revealed oxycodone pills, and Green revealed a bag of oxycodone pills on her person. The subsequent search of Green’s residence – defendant’s home – was directly related to the probation supervision of Green, who had been convicted of, among other things, felony drug possession.

We affirm the trial court’s denial of defendant’s motion to suppress the controlled substances found in his home.

Although the search may have served two purposes, (1) to further the supervisory goals of probation, and (2) to investigate other poten tial criminal behavior, the dual purpose of the search did not make the search unlawful under G.S. § 1343(b)(13).

VIRGINIA LEGAL AID

About a month before the search, the relationship between Green and defendant had deteriorated to the point that defendant put Green’s belongings on the home’s front porch. However, Green told her probation officer that the couple’s relationship had improved, the pro bation officer visited the home and found Green in the front yard, and – when defendant was told that of ficers were in his home to conduct a warrantless search of the home as part of Green’s probation – de fendant stated he “understood.” A reasonable person having such an exchange with another’s probation officer would have notified the of ficer that the probationer no longer resided at the address – if that were true. Based on the totality of the cir cumstances, defendant’s response indicated his implied consent to the search of his home.

State v. Lucas (Lawyers Weekly No. 011-183-22, 32 pp.) (Jeffery

DARING TO DREAM

■ BY TERI SAYLOR

Afghan refugee builds new life as a paralegal in Greensboro

country too. Still living in Afghanistan and in hiding are his father, two brothers, and another sister.

Khovaja Samir Seddiqi knows what hope and resilience feel like when your life is suddenly defined by grief and uncertainty.

He lost everything when the Taliban overthrew the Afghan government amidst the United States military withdrawal in August of 2021. Today, he is a paralegal in the Greensboro office of Church World Service, a global organization that helps meet the immediate needs of refugees from dangerous zones seeking asylum in the United States.

Despite everything Seddiqui has gone through, he considers himself lucky to have a job and an opportunity to help other Afghan refugees even as he labors through his own struggles.

“When someone says they had nothing, I totally came to the United States like that,” he said, while sitting in the CWS offices in downtown Greensboro on a sunny afternoon in October. “I stepped into this country with the clothes I was wearing when I left Afghanistan and $5 in my pocket.”

Just over a year ago, Seddiqi had everything going for him.

A successful entrepreneur in Kabul, he owned Saddiqi Software Services and had started the Afghanistan Progressive Youth Organization, a nonprofit dedicated to teaching English and computer skills to young Afghans, with a focus on helping women.

Fluent in English, as well as Dari and Pashto, two languages spoken in Afghanistan, he also worked for the U.S. Government as an interpreter and with defense contractors in a variety of roles, including supply chain management and office administration.

In the chaotic final days as Afghan people clamored to board planes to leave their country for safer places, Seddiqi worked alongside troops at the airport until the last minute.

“I helped the Marines with the evacuations for 10 days and did my part as an interpreter,” he said. “There was a great need to interpret an as the situation worsened.”

He secured a spot on one of the last planes out. His mother and two of his sisters were able to leave the

“We all saw the really horrible images in the news of what was happening and watched the evacuation of over 80,000 Afghan allies,” said Megan Shepard, CWS office director.

Most came directly to the United States where several military bases hosted them while their cases were being processed. From there, they traveled to resettlement agencies across the country, like CWS.

CWS helps refugees

In addition to its Greensboro office, CWS has a presence in Durham, Charlotte, and Asheville.

in 1980, Congress signed into law the Refugee Act, formalizing the refugee resettlement program as we know it now — a humanitarian lifesaving program that the U.S. government implements and contracts with national agencies to support the arrival of refugees, Shepard said CWS is one of those agencies.

In North Carolina, CWS welcomes refugees who are arriving through the U.S. Refugee Admissions program, helping them with everything, including picking them up at the airport, securing housing, getting kids enrolled in school and English classes, getting them connected to healthcare, helping them find jobs and generally restart and rebuild their lives in the United States.

“Hundreds of Afghans came to the Triad, and even more arrived in other cities across North Carolina,” Shepard said. “Many of them came with little to nothing.”

Seddiqi was in that category.

“I lost everything you can imagine — my money, my house, my company, and part of my family,” he said. “No one wants to be a refugee, but this was a situation where there was no other option. I leave or get killed. I left everything and I don’t know what has happened to it.”

With his mother and two sisters, Seddiqi first landed in the Washington, D.C., area and was soon offered a job. But instead of starting his employment, he and his family were sent to Greensboro.

A year has passed, and the culture shock is palpable.

Adapting to life in Greensboro

The Kabul Seddiqi knew was a bustling city of nearly 5 million people. Greensboro, a medium-sized city of 300,000 was no place he wanted to be. But over the recent months, he has come to love his new home.

“The first few days, it was very hard. I wanted to stay in D.C. but I had no choice,” he said. “Greensboro is a nice place, and I have learned it’s not large cities and buildings that matter. People matter, and it matters for a community to be welcoming to a person who has lost everything.”

To a visitor, Sediqqi, sitting in a private office with a warm smile on his face, appears comfortable and well-established, but his friendly calm demeanor can’t completely erase his stress and concern for his family — those who fled Afghanistan with him, and those who are still there.

His sisters are 18 and 16. One is in high school, and the other is taking English classes with her mother. All are still adjusting to their new lives in the United States. Still in Afghanistan are his father, two brothers and another sister. He constantly worries about them and holds out hope for a future reunion in the United States.

Along with rebuilding his life, Seddiqi has had to rebuild his dreams. He learned about CWS online and joined the team as an interpreter. But the agency quickly noticed his drive and his skills and education — he has a degree in information technology from Behzad Institute of Higher Education.

He also had demonstrated his leadership within the newly established Afghan community in Greensboro, providing interpretation services for those who could not speak English, and helping other refugees settle in, Shepard said.

“We learned he had a lot of interest in the legal services side of things and had significant experience completing his own paperwork and navigating through the immigration process,” she said. “So we moved him into a paralegal position where he works as an integral part of our immigration legal services team.”

Paralegal job allows him to help others

While Seddiqi never imagined he would be a

The close-knit staff at Church World Service in Greensboro gathers at the end of the workday. From left: Said Zeyar, Jelena Milisav, Iva Panayotova, Samir Seddiqi, Noman Farid, and Elizabeth DeFrance. Photo by Teri Saylor

DREAM / DARING TO DREAM

paralegal, it’s a role he has embraced, and he looks at his job as an open door to new opportunities. He has mastered his role through on-the-job training, working with attorneys and supervisors, and real clients with real cases.

His duties include typical paralegal services, con sulting with clients and preparing applications for their asylum. He points to a stack of files on his desk, and explains they contain client documents for cases he is working on.

“I summarize cases, prepare reports for our attor neys, and schedule appointments,” he said. I also help gather information, draft legal documents, and man age cases.”

Shepard calls him “fantastic.”

She is moved by how much he cares about his com munity, and as a bonus she and her colleagues at CWS have learned much about Afghan culture.

It has been really exciting to have been introduced to a new Afghan community here in the Triad,” she said. “It’s such a beautiful culture and the people have so much to offer.”

She’s also grateful to have Seddiqi on the CWS staff.

“He brings so much knowledge and compassion,” she said. “And he’s just so committed to serving the Afghan community here and has been a good advocate for himself and for other Afghans.”

Last October, he was one of six Afghans in Ameri can communities across the nation recognized as 2022 Champions for Change for their efforts to help refugees fleeing the Taliban find safety in the United States.

For Seddiqi, it is all about understanding what his fellow refugees are going through.

“I understand how hard it is for other people expe riencing the same thing I did, and I am motivated to work hard for my community and for other refugees,” he said. “I know English and I also speak their lan guage, and now I’m doing what I can to try to make their lives a little easier.”

While enjoying success at work, the ability to sup port his family in Greensboro, and his new friends, Seddiqi can’t hide from the uncertainty he and other

refugees are facing in their new, homes, where they have an immigration status for just two years.

Most Afghans who have relocated to the U.S. were admitted into the country on temporary humanitar ian parole without lasting protections for work or resi dency. Afghans who left behind their homes, jobs, and families are now under a cloud of uncertainty with the prospect of their parole expiring.

The Afghanistan Adjustment Act, a bi-partisan bill introduced in Congress last year would provide a path way to lawful permanent residency for many of them.

“We and other partners have been pushing for Con gress to pass this legislation,” Shepard said. “It is un derstandable that there would be a lot of stress and worry about what happens next because it is not an option for people to return at this point because it’s just too dangerous there.”

She added the uncertainty around their immigra tion status is difficult, and it’s challenging for us as a service provider too because we don’t have the an swers to what’s going to happen either.”

Seddiqi finds solace in helping others. It is in his DNA.

“My work is more than just a job, it is about helping people,” he said.

Even in his home country, he was helping others through his nonprofit, which offered tutoring services and focusing on educating women and girls to learn English and computer skills and make them ready for jobs.

“It was all free for students, and it did not cost them a single penny, because I used my own money to fund it, even without help from the government,” he said. “We were empowering young people of Afghanistan for a better future, better jobs and a better life.”

The organization served over 700 students, and Seddiqi does not know if any of them were able to get out of the country. He’s not sure he will ever go back.

“Afghanistan is not a place to live anymore if you are a democratic person who has a free mind and wants to use your voice,” he said. “There was always the fear of being persecuted or killed.”

A year after arriving in the United States, Samir has dreams. Maybe he’ll form a start-up business like he had in Afghanistan. Maybe he’ll start another non profit or become a lawyer.

“I have my own life here now, and I really worked hard for that,” he said. “I also have my Afghan com munity and lots of friends here and in Greensboro.”

He also applauds other Afghans who have lived in the Triad area for many years and have reached out to the newcomers to share their experiences and provide guidance.

“The United States is the greatest country on Earth,” he said. “There is no fear of being persecuted or killed. Instead, there is joy and I’m happy to have the opportunity to serve the community.”

He holds out hope he and his family will be granted asylum the rest of his family will make their way to Greensboro too.

“I lost everything I had, and I’m sure one day I’ll get it back and be successful in the United States,” he said. “I never stop dreaming.”

View Available Dates Calendars & Bios Online for the State’s Premier Mediators

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Samir Seddiqi fled Afghanistan when it fell to the Tali ban with nothing but the clothes on his back and $5 in his pocket. Today he and some of his family members have settled into a new life in Greensboro, N.C. as he works as a paralegal for Church World Service to help support them. Photo courtesy of Samir Seddiqi

Connecting in a virtual community in a post-pandemic world

In April of 2020, while many of us were reeling at the changes happening in our world due to the pandemic, Gabriel Couture was writing about the importance of virtual communities.

Gabriel says virtual communities can provide “a sense of belonging and community; an experience that empowers participants to turn to their peers for authentic and relevant knowledge-sharing conversations. Our participants need to feel like they’re a part of something relevant and impactful – a community that is worth exploring and getting to know.”

What is the benefit of a virtual community?

Consider the Facebook groups you have joined. Perhaps they refl ect your hobbies or your vacation interests. I’m a member of several photography groups on Facebook though I still can’t take a great sunset picture. I’m also a member of North Carolina day trips because these are some of my favorite adventures – driving across North Carolina and discovering local art and the best diner in the county.

However, another important benefi t of a virtual community is its diversity of ideas, creativity, and differing perspectives.

Legal Communities

Bar associations listservs were forerunners of the online community. Consider the North Carolina Bar Association or the North Carolina Advocates for Justice – many would say the listservs are among the most important member benefi ts. The ability to reach out to hundreds of lawyers who do the same thing you do and ask a question with the understanding that you may have an answer within minutes – now that’s a value add!

As a matter of fact, the North Carolina Bar Association has even begun using the word community to describe their sections, divisions, committees, and interest groups.

Lawyerist is a popular online community. They describe themselves as “a resource hub for starting, running, and growing a healthy small law fi rm.”

Leading Law, virtual community formed by Lawyers Mutual Consulting, is a community of lawyers, paralegals, law fi rm leaders, legal professionals, legal technicians, business partners, law students, and law school innovators who are infl uencing the direction of the modern practice of law.

How to Choose a Virtual Community

What is your purpose in joining? I joined the Facebook photography community not because I am a photographer, but because I aspire to be. I also love art and nature and the group I joined combined those interests.

Another reason to join a community is the members and networking opportunities. The NC / SC Paralegal Facebook group is a great resource for asking career advice and virtual networking for job opportunities. If someone has seen you post high-quality content and you are searching for a job, it’s likely if they have a position open they would be willing to connect you.

Benefi ts of the community are important. You may be interested in the job board, or the skills tips and best practices that are shared. Or you may enjoy the opportunity to gather for virtual

events such as the Leading Law monthly Roundtable where the business of law is the topic and the participants are solo, small, and medium law fi rms inside and outside of North Carolina.

The New “In-Person”

A few years ago, I introduced the Managing Partner Summit, a live event held in Raleigh welcoming Managing Partners and other law fi rm leaders to an all-day, educational program focused on the business of law. Each year, the program highlighted a keynote speaker, followed by panels of local lawyers and legal professionals sharing their best practices to running their law fi rms.

In 2020, we were one week away from the event when the world began shutting down due to the pandemic. The 2020 Managing Partner Summit was rescheduled for fall. And then rescheduled for 2021. Finally, with no end to the pandemic in immediate sight, we created the virtual community, Leading Law. The idea was to replace the live event, and to make the concept of the event more accessible and to create a community of legal professionals any of whom might be available online at any time.

I’ve experienced feedback from attendees at the in-person event that it is hard to replicate that experience in a virtual community where people are not gathered in the same place at the same time. I certainly feel the same way. Live events are still the most fun and benefi cial for me as well. However, having an option of attending some events in person through bar and other professional associations, but having virtual communities to rely on as well seems like the best of both worlds to me.

It’s also easier on the budget to be a part of a virtual community. If I’m participating in the community, I have no travel time, no travel budget, and no lost hours for travel. I love appearing in person at professional events and I have no plans of stopping that, but I can be involved in more collaboration opportunities by participating in a virtual community.

Participation is often not time sensitive. I can open the Mighty Networks app to view Leading Law after dinner and post a question. Over the course of the next few days, I’ll receive responses and have time to analyze solutions.

While multiple video calls a day can be exhausting, I do feel virtual communication is the the new “in-person” form of communication. Take today for example, I chatted with clients about the weather, admired fall foliage out their offi ce window, and my cat paid a visit onscreen for a moment. While not in the same room, we were participating in the same experience.

Leading Law benefi ts include:

• Exclusive content and conversations you can’t fi nd anywhere else

• Monthly Leading Law Roundtables with facilitated discussions led by industry experts

• Connecting with people who share your interests, who do the same things, or who care about the same topics

• Advice for more well-informed decisions about building and managing modern law fi rms and clients

• The ability to swap stories, experiences, and ideas around our shared mission

• Finding a little inspiration, thought-provoking conversations, and expert perspective each and every day.

• Sign up for Leading Law at lawyersmutualconsulting.com.

Find a virtual community that meets your needs. Get involved by posting questions, asking for advice, and engagement with other professionals. Membership in a virtual community can help you to build a modern practice and expand your referral base. I love the encouragement and support I get in the virtual communities where I participate. It’s almost like being at your favorite conference anytime but perhaps a little more manageable.

Camille is the president of Lawyers Mutual Consulting & Services. Continue this conversation by contacting Camille at camille@lawyersmutualconsulting.com or 919.677.8900.

■ BY CAMILLE STELL

Online communities have become crucial meeting spots in a post-pandemic workplace. Photo Pexels.com

Jasmine Williams finds her calling as a paralegal

She went on to receive an associate degree in para legal studies from Altierus Career College while working fulltime and raising her children.

She is now the senior paralegal at Jeffries Law Firm in Orangeburg, where she has worked since 2012, focusing on personal injury and workers’ com pensation.

smile.” With this, I am motivated to give every day my all.

Skillset wish list: I’d love to obtain the Profes sional Paralegal certification from NALS. It would build confidence and provide evidence that I have the necessary knowledge and understanding of the pro fession. I believe we should always take advantage of opportunities to further our education, and it is always wise to consider ways of bettering yourself.

My desktop: My desktop is messy and for me, there is organization in chaos. I know where every thing is and what it’s for. I task everything on my PC calendar. However, I am also a firm believer in the use of paper. I must have post it notes and hand written reminders. I have portraits of my family, my degree, and notary public certification, and an over sized picture of the scales of justice on my wall. A hot cup of coffee is also a must-have and always on my desk.

When Jasmine Williams landed a job as a legal assistant at The Law Office of Carl B. Grant, she ad mits she was so nervous when she started, and had no idea she would fall in love with her profession.

“I guess you could say that once I got my foot in the door, I never walked out, and my life has been moving forward ever since,” she says.

The 39-year-old mother of three grew up in West chester, N.Y. and moved to Orangeburg, S.C. in 2001. She attended Lyndon B. Johnson Job Corps Center in 2005, where she earned her GED along with a trade certificate in business administration.

“I met attorney Jeffries in my first job, and I loved her personality and her strong-willed desire to help people,” Williams says. “I vowed that if I was ever offered the opportunity to work for her, I would do just that.”

Motivation: My daily motivation outside of my family is my desire to help those in need. I believe that when you are injured and your world has been literally turned upside down, you should seek a law practice that will listen to you and express genuine concern about not only the injuries sustained but the mental anguish and emotional instability that comes along with the loss of a job or ability to provide for your family. The people are my motivation. I begin my day with the following statement: “You are here to help your neighbor. You are here to listen. You will make a difference today. You will make someone

I might have been: If I was not a paralegal, I would pursue a psychology degree and administer therapeutic services to mental health patients. I am a firm believer that we all just need someone to talk to and if we can talk and listen, we might be able to save someone from hurting themselves or someone else.

Favorite music: I listen to all types of hip-hop, pop, country, gospel, R&B and rock music. Lately, I’ve had a fascination with smooth jazz, especially at the office. The sounds of a saxophone playing in the background when I’m typing a chronology or com pleting discovery responses really makes it easier to focus.

Spare time activities: I am the youth director at my local church, so my spare time consists of work ing with the kids to ensure that they are learning and growing spiritually. We host fundraisers, per form community service, and encourage our young entrepreneurs to push forward with their business ventures. I also have a small business called Night Twinklers, creating custom solar décor and resin de signs.

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

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

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

Jasmine Williams

I guess you could say that once I got my foot in the door, I never walked out, and my life has been moving forward ever since.

“

Traci B. Wolfe finds her passion as a paralegal

shut its doors, leaving Wolfe at a crossroads.

Then she discovered her new passion in the law.

“The home health agency’s owner, who was a friend, put in a good word for me with an at torney with the Cromer and Mabry Law Firm who was looking for a paralegal,” Wolfe says. “He mainly handled employment law matters, and even with no legal experience, I went on the interview and was hired the same day.”

Wolfe continued to work for the firm until Benjamin Mabry’s death in 2014. She followed the associate attorney who worked with her to Callison Tighe and Associates where she stayed for six years.

“Then in 2020, I joined a team that left CTR and started Burnette Shutt and McDaniel, where I currently work,” she says.

When the firm brought in a family law attor ney, she jumped in full force to learn family law.

The year she received her degree in legal studies, she joined the Legal Staff Profession als of the Midlands and is in her second year as president.

“I have also held multiple leadership positions in the paralegal profession on the state and local levels,” she says. “In 2019, I obtained my Profes sional Paralegal certification through the NALS certification program.”

I am an enabler, and proud of it. I cherish the re lationships and bonds I develop with our clients.

Favorite work activity: That’s a tough one, in family law it would be finding out all I can about the opposing party to help assist the at torneys. For employment, it would be discovery. I love to ask questions and convince the other side to give up what they have. I guess you could say I am nosey.

My superpower: That is an easy one. My su perpower is dealing with people and getting them to talk with me. The attorneys in my office say I use my “Traci Magic” to get things done.

On leadership: If you work in the legal field, you already are in leadership. You must manage attorneys and multiple cases each day. Serving the paralegal profession as an association leader will give you the opportunity to develop new skills and sharpen the skills you already have. Limiting yourself to simply serving as a member, you have a reduced impact on how your association moves forward. Leadership gives you a stronger voice in how your association moves to the next level.

In 2018, at the age of 51, Traci B. Wolfe re turned to college and earned an associate degree in legal studies from Purdue University. She had already experienced two full careers and was in the middle of her third when she decided to go to school.

Born in Hickory, N.C. Wolfe worked in a fur niture factory most of her life until she moved to South Carolina in 1992 where she began manag ing a home health agency. In 2008, that agency

Wolfe has been married to her husband, Ken neth for 34 years and has a blended family of two girls, one boy, and a son who is now “an angel the family lost when he was 18 years old,” she says. She also has eight grandchildren, two dogs, Bailey and Gracie, and one “grandpup” named Trevor.

Inspiration: The attorneys I work directly with play a big part of my drive and my success. Also, helping clients through one of the toughest experiences of their life is a driving force for me.

Goals: I am not one to goals. In 2018 we lost our 18-year-old son. From that January day, I live each day the best I can. If I am blessed to wake up in the morning, I will make the best of the day that was given to me. I also strive to ensure that both professionally and personally, people know how much I appreciate them and care about them.

Work/live balance: I don’t have work/life bal ance, and that is okay. I chose to wait until I was over 50 years old to become a workaholic. I love my job. I love my friends and my connections with the Legal Staff Professionals. We share the same passions, and we get each other. Working in the legal profession is tough, it drains you mentally. It is great to have likeminded colleagues that un derstand. We work hard and play hard when we need to.

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Q&A: Traci B. Wolfe

Traci B. Wolfe

Investors Title’s commercial underwriting attorneys (left to right) are Jane Barkley, Gates Grainger, and Taby Cruden.