North Carolina Lawyers Weekly December 5, 2022

TEST CASE

Advocates for Justice names new leader

Shannon Leskin is the new executive director of the North Carolina Advocates for Justice, according to a news release from the organization. She began in her role immediately following a vote of the NCAJ Board of Governors in October.

NCAJ, which is celebrating its 60th anniversary this year, is a statewide association of plaintiffs’ lawyers and defense attorneys. A nonprofit, nonpartisan group, it is dedicated to empowering a strong community of trial lawyers to protect people, prevent injustice and promote fairness.

4th Circuit reverses dismissal of ADEA, Title VII claims

■ BY NICK HURSTON BTM Wire Services

A plaintiff who said a required physical fitness test was a discriminatory condition of her government employment and that she was injured by a loss of income when she resigned after failing it can pursue claims under the Age Discrimination in Employment Act and Title VII.

The 4th U.S. Circuit Court of Appeals reversed a lower court holding that the plaintiff lacked standing because her resignation did not constitute an “adverse employment action”

under the ADEA or Title VII of the Civil Rights Act.

“[T]he district court inappropriately intertwined its standing analysis with the merits,” Judge Julian N. Richardson wrote for the court. “[The plaintiff] alleged that she suffered financial and job-related injuries in fact that are fairly traceable to the government’s action and likely to be redressed by a favorable ruling.”

Richardson’s decision in DiCocco v. Garland (VLW 022-2-236) was joined by Senior Judge Henry F. Floyd and Judge J. Harvie Wilkinson.

Resignation

Dr. Jane DiCocco was 67 years old when she was hired in 2014 as a psychiatrist with the Bureau of Prisons, or BOP, to work at a correctional facility in Petersburg. All prison employees, regardless of age, position or gender, had to pass a physical abilities test.

DiCocco failed the test and refused to retake it within 24 hours because she feared that she would be unable to satisfactorily complete it in her exhausted physical condition. The Bureau told her that, unless she re-

Leskin has served as NCAJ’s interim executive director since the prior executive director departed in June. She is a management and governance expert with over 40 years of experience in the nonprofit sector working with nationally known nonprofit institutions.

NCAJ Immediate Past President John McCabe, who led the executive director search committee, said Leskin’s steady guidance during the interim period is a strong example of her leadership style.

“Over the last four-and-a-half months, Shannon has proved to be a strong, unifying, and forward-thinking leader,” McCabe said. “She has repeatedly demonstrated her commitment to NCAJ’s vision of protecting people, preventing injustice, and promoting

Family of bicyclist killed after car strike settles for $7.9M

■ BY HAVILAND STEWART hstewart@nclawyersweekly.com

The family of a cyclist who was hit and killed by a pickup truck on his morning ride before work reached a settlement of $7.9 million.

The pickup truck driver was driving on behalf of his company and the vehicle had a commercial insurance policy. Both the driver and their company were named as defendants.

According to the accident report, the driver of the pickup truck was cited to be at fault and was driving too fast for conditions. The plaintiff alleged that he was distracted as he should have been able to see

C. Evans James B. Moore III

the cyclist who had front and rear lights.

The deceased was a 50-year-old U.S. Navy veteran and married father of three children. Following his retirement from the U.S.

Navy, which included a tour during Operation Iraq Freedom, the deceased obtained his bachelor’s and master’s degrees in environmental studies. He was

employed as an environmental coordinator at the time of his death.

The defense argued that the deceased “assumed the risk” because he was riding his bicycle on a busy highway at dark with a posted speed limit of 55 mph. Additionally, the defense argued that the plaintiff was killed at impact and therefore there would be no pain and suffering, which would limit his damages under the survival cause of action.

According to an economic loss report reprepared by Oliver Wood, the present value of the financial loss associated with the death was valued

Teen injured in boating accident settles for $3.1M

family awarded

after being injured in crash

Scott

Shannon Leskin

The 4th Circuit Court of Appeals has reversed a lower court holding that a plaintiff lacked standing because her resignation after a fitness test did not constitute an ‘adverse employment action’ under Title VII of the Civil Rights Act. DepositPhotos

Ellis & Winters adds six attorneys

Ellis & Winters is pleased to wel come six attorneys to the firm’s Litigation Group. Pamela Duffy, Ty Jameson, Chelsea Pieroni, Marcus Allen Shields, Derrick C. Foard, and Molly Whitlatch have recently joined the firm’s Greensboro and Raleigh of fices.

“Each of these attorneys has joined Ellis & Winters to meet specific cli ent needs” said Leslie Packer, Ellis & Winters managing partner, said in a news release. “We have added a total of 15 attorneys to our firm in 2022 and appreciate the diversity and many talents that these new attor neys bring to our client teams.”

Below is additional information re garding our newest attorneys.

• Pamela DuffyPamela is the type of lawyer that is often referred to as a “pow erhouse attorney,” the release stated. She has served as a formidable advocate for her clients since becoming an attor ney over 30 years ago and her energy and enthusiasm for her clients and legal practice contin ues to grow. Her practice focuses on fi duciary litigation including trust, es tate, and power of attorney disputes, as well as business and complex commercial litigation such as busi ness ownership disputes, unfair trade practices, contract disputes, and non compete litigation.

• Derrick C. Foard - Derrick is a native North Carolinian and is a member of the firm’s Litigation Group. He is an experienced litigator who focuses his practice on complex

commercial litigation with an emphasis on products and general liability. Before join ing Ellis & Winters, Derrick worked for a national law firm in its South Carolina office as a commer cial litigator concen trating his practice on products liability cases.

• Ty Jameson - Ty is a native of Greens boro, N.C., and a member of the firm’s Litigation Group. He focuses his practice on complex commer cial litigation, trusts and estates litigation, and medical malprac tice defense.

• Chelsea PieroniChelsea is a member of the firm’s Litiga tion Group and fo cuses her practice on complex commercial litigation. She was raised in Italy and re ceived her higher ed ucation in North Car olina at both Duke University and the University of North Carolina School of Law.

• Marcus Allen Shields - Marcus has traveled some excit ing paths on his way to Ellis & Winters. At the heart of his jour

BAR DISCIPLINE ROUNDUP

Attorney: Elizabeth J. Caviness County: Wake County

Bar membership: Since 1989 Disciplinary action: 30-day suspension

Background: The defendant was found guilty of noncompli ance with the investigation of a grievance filed against her on March 20, 2022. She failed to respond to numerous letters of notice, phone calls, and subpoe nas from the State Bar.

On Nov. 3, 2022, the DHC entered an Order directing the

ney has always been pursuing and protecting the rights and best inter ests of others. He was appointed as a District Court Judge by North Caro lina Governor Roy Cooper in May of 2018, and later ran and won election. He has presided over matters in every district courtroom in Guilford County and was the presiding judge for the Greensboro Juvenile Drug Treatment Court, the High Point Juvenile Drug Treatment Court, and the Greensboro Adult Mental Health Court.

• Molly Whitlatch - Molly took an interesting route leading to her career as an attorney. She received her un

defendant to show cause within 14 days of the date of service of the Order upon the defen dant explaining why her law license should not be suspended for failure to comply with the grievance process. The Order warned the defendant that fail ure to comply with the griev ance process or respond to the Order may result in the suspen sion of her law license.

The defendant failed to respond to the November 3, 2022, Order and was therefore suspended from practicing law in North Carolina for 30 days.

dergraduate degree from Elon College, summa cum laude, and an M.A. in Clini cal Psychology from Appalachian State University. Thereaf ter, she worked in the North Carolina State Prison System coun selling prisoners who suffered from mental illness. Molly received a full scholar ship to law school, earning her law degree from Wake Forest University.

Staff report

Wrongful conviction that led to 42 years in prison results in settlement

■ BY HAVILAND STEWART hstewart@nclawyersweekly.com

The estate of a man who was wrongfully im prisoned has been awarded a $9.5 mil lion settlement.

In 1976, Charles Ray Finch was con victed and charged with the death sentence for the murder of Shadow Holloman. Over 45 years later his sentence has been vacated.

According to the counsel for the estate of Finch, David Rudolf, Sonya Pfeiffer, and Phillip Lewis all from Pfeiffer Rudolf Law Firm, this was due to widespread corruption in the Wilson County, North Carolina, po lice department that was eventually investigated by the FBI. The Sher iff and several of his deputies were eventually convicted with a Rack eteer Influenced and Corrupt Orga nizations (RICO) indictment.

“He was running his sheriff’s of fice as a criminal enterprise and what that involved at the time was helping to run drugs, guns, and cig arettes up and down I-95 in North Carolina,” Rudolf said. “There were a whole host of illegal activities that were centered at and conducted by the sheriff’s office. In the middle of that, there’s a murder, and we be lieve the prime suspect of that mur

der was somebody who worked at one of the motels that the sheriff al lowed to be used as a brothel. He saw the sheriff’s deputies and the sheriff himself coming there to get pay outs. When he committed this murder, it’s our theory that the sheriff’s office had a large incentive to not arrest him because he was in possession of information that he could have pro vided to law enforcement.”

What the plaintiff’s counsel al leged was that the sheriff’s office set up Finch to take the fall for this murder. The sheriff’s office even ar ranged an unconstitutional in-per son lineup where Finch was dressed up to match the description of the perpetrator by a witness, according to Rudolf.

Based on that identification, Finch was convicted of first-degree mur der five months after his arrest. He received the death penalty, but his death sentence was vacated in 1977.

While steadfastly fighting to prove his innocence, Finch filed several post-conviction motions, his case was eventually taken over by the Wrong

Is this a verdict or a settlement? Settlement

Type of case: Wrongful conviction, malicious prosecution, denial of fair trial, Monell, deprivation of due process and access to courts

Amount: $9.5 million

Injuries alleged: Wrongful conviction and incarceration (forty-three years)

Case name: Charles Ray Finch v. Sheriff Calvin L. Woodard Jr; Tony McCoy Owens; James Tant; Special Agent Alan H. McMahan; and John H. Watters

Court: US District Court for the Eastern District of NC Case No.: 5:19-CV-00550-BO

Judge: Terrence Boyle

Date of settlement: July 12, 2022

Attorney(s) for plaintiff and their firm(s): David S. Rudolf, Sonya Pfeiffer, and Phillip Lewis all from Rudolf Widenhouse Law Firm

Attorney(s) for defendant and their firm(s): Alex Williams (North Caro lina Department of Justice) Bryan Nichols (North Carolina Department of Justice) Josh S. Wood (Weinberg Wheeler Hudgins Gunn & Dial)

Were liability and/or damages contested? Yes

Has the judgment been successfully collected? The settlement has been paid in full.

ful Convictions Clinic at the Duke University School of Law in 2001. Duke reached out to the SBI – which had conducted a follow up investiga tion in 1979 – for more information.

According to Rudolf, Finch’s counsel alleged that the SBI withheld critical exculpatory evidence and as a result of that, Finch spent an additional 18 years in prison.

Finch served 42 years in prison before his sentence was finally va cated by the Fourth Circuit Court of Appeals in 2019. He received a par don of innocence from Governor Roy Cooper in 2021.

About a year and a half after Finch

was exonerated, he passed away due to cancer. He is survived by his four children.

Finch’s Estate received a global settlement of $9.5 Million from the SBI and the Wilson County Sheriff’s Department.

“What [his children] lost over the course of their lives in terms of in teractions with their dad and his interactions with them, is just in calculable,” Rudolf said. “There’s no amount of money that could make up for that.”

Defense attorneys either declined to comment or failed to respond to comment requests.

David S.

Rudolf

Sonya Pfeiffer Phillip Lewis

Pamela Duffy

Marcus Allen Shields

Molly Whitlatch

Ty Jameson

Derrick C. Foard

Chelsea Pieroni

Teen injured in accident settles for $3.1M

■ BY HAVILAND STEWART hstewart@nclawyersweekly.com

In October 2022, a teen who was badly injured in a boating wreck two years prior, was awarded a $3,148,000 settle ment for her physi cal and emotional trauma.

One week before the plaintiff was scheduled to begin her freshman year of college, she was tubing behind a 25foot Grady While pleasure boat, when the tube crashed into a dock causing significant injury.

The operator of the boat was the boat owners’ son, who was pulling a tube behind the boat with three 18-year-olds sit ting inside the well of the tube.

The plaintiff was positioned on the starboard (righthand) side of the tube as the boat operator made a turn to port (left hand), causing the tube to swing out beyond the wake and strike a dock piling on the side of the river. It was alleged that the vessel operator had been drinking alcohol before the inci dent and was impaired, but not impaired enough for it to be vis ible to the other passengers on the boat and the tube. There also was evidence that other passengers, including plaintiff, had been con suming some alcoholic beverages but none were impaired.

The plaintiff’s body slammed into the wooden dock piling in the crash. After the impact, she was thrown from the tube, lying face down in the water, and was pulled onto the same dock she struck by passengers in the boat who jumped into the water to aid her. She was in severe pain and had to be trans ported to the hospital for emergen cy treatment.

The crash caused plaintiff to suf fer five pelvic fractures, a separa tion of the pubis symphysis, and a femur fracture, as well as other, more minor injuries. She underwent emergency orthopedic surgery. The rear of her pelvis and the sacrum

were stabilized with a pin through both sacroiliac joints, a plate and screws were used to stabilize the pubis symphysis. She was hospi talized for five days and under went three months of initial physi cal therapy progressing from a wheelchair to a walker to crutches.

Her total medical bills at the time of the settlement were $139,088.26.

She was able to recover and re gained the ability to walk without assistance, although her treating physicians testified that she would more likely than not have some form of permanent injury and impairment because of the boat crash.

“While the Plaintiff appeared physically normal, testimony from her highly credentialed treating rehabilitation physician would have established that Plaintiff had five different permanent injuries,” Plaintiff attorney Robert Zaytoun said.

The Plaintiff also experienced emotional harms including posttraumatic stress disorder from the crash and emotional distress from not being able to start college as scheduled with her classmates.

She began college one semester later and excelled academically. She also held a part time job and participated in an honors program and extracurricular activities re lated to her major.

There were no issues of alcohol impairment related to the paren tal owners of the vessel, and they were not on board at the time of the crash. In opposition to the lim itation action filed by the vessel owners, plaintiff alleged, and the defendants denied, that the vessel operator had previously engaged in prior reckless boating activities and other reckless behavior. Plain tiff also alleged that the owners of the vessel should have known of the operator’s propensity for reck less operation of the vessel.

Is this a verdict or a settlement? Settlement

Type of case: Admiralty, boating injury case Amount: $3,148,000.00

Injuries alleged: Pelvic fractures and post-traumatic stress disorder

Case name: Confidential Court: Confidential

Case No.: Confidential Judge: Confidential

Date of settlement: October 6, 2022

Most helpful experts: Confidential Insurance carrier: Confidential

Attorney(s) for Plaintiff and their firm(s): Robert E. Zaytoun and John R. Taylor of Zaytoun Ballew & Taylor, PLLC. John Green and Alex Hall of Hall & Green, LLP.

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

Were liability and/or damages contested? Yes, all aspects of both li ability and damages were contested.

Has the judgment been successfully collected? Yes, all settlement amounts have been collected.

The vessel owners and their son, the vessel operator, who were rep resented by maritime defense at torneys, denied any liability for plaintiff’s claims, and contested the permanency and seriousness of plaintiff’s injuries. The defense had boating-related expert wit nesses to testify about liability issues, as well as medical experts who questioned the diagnoses and opinions of plaintiff’s treating medical providers.

The defense argued that plaintiff had made a full or near full recov ery, usually walked without limp ing, looked healthy, and was able to resume normal life activities. The defense also obtained surveil lance video and social media evi dence showing the plaintiff walk ing normally and dancing, which they argued suggested that her injuries had completely resolved.

Plaintiff relied on her health care providers for evidence of in jury and permanency.

“A challenge we faced in this case was that our client looked normal and recent videos of her made it seem that she was fine,” Zaytoun said. “However, the truth is that she was in physical pain every day and she was still dealing with the emotional fallout from this crash

and her PTSD. We were prepared to present treating physician tes timony about the true nature of our client’s injuries. We also en gaged an accident reconstruction expert to create a very helpful se ries of animations to let everyone see what happened in the crash and testify about how forceful this impact really was. The expert was able to calculate that the force of the impact was the equivalent of a fall from a 5-story building, with the force concentrated on Plain tiff’s right hip.”

Plaintiff attorneys John Green and John Taylor also noted that they had to deal with the challeng ing fact that their client had been drinking alcohol on the day of the collision and the defense arguing that she was negligent.

“We argued that our client’s drinking was not a proximate cause of boat crash, and she never thought that the operator was im paired or that he was unable to safely drive the boat,” Green said.

“There was no steering wheel on that tube, and she was completely in the hands of the boat operator when the tube was rushing to wards the dock. It was a very scary experience that she had no control over.”

MEDIATION TRAINING

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JANUARY

AUGUST

John Green

Robert E. Zaytoun

Alex Hall

John R. Taylor

Estate, family awarded $1.3M resulting from crash settlement

Settlement Amounts: $750,000 from liability; $550,000 from three com bined North Carolina under-insured motorist policies

■ PUBLISHER

Liz Irwin

lirwin@bridgetowermedia.com

The estate and surviving family of a motorist killed in an accident involving a semitrailer and recreational vehicle has been awarded a $1.3 million settle

In August 2021, a North Carolina fam ily was on vacation in Pennsylvania when an unlicensed New York driver lost control of his semi trailer and collided with the plaintiffs’

According to the plaintiff’s council, Matthew F. Altamu ra and Shannon L. Altamura of Garrett, Walker, Aycoth & Altamura LLP in Asheboro, N.C., the RV was parked outside of the fog line of the roadway awaiting assis tance for a mechanical issue at the

Injuries Alleged: 1 fatality; various injuries to survivors including shoulder separation, rib fractures, kidney injuries, and fibula and tibial fractures requiring surgery.

Case Name: Confidential

Date of crash: Aug. 20, 2021

Date of Settlement: July 22, 2022

Special Damages: \$192,597.34 in Loss of Pension and Social Security benefits, $57,044.40 in 414 healthcare expenses, $16,563.83 in

lost wages

An 82-year-old male was killed at the scene of the accident, which was witnessed by his wife who sustained a permanent shoulder injury. The son of the deceased also suffered ex tensive injuries to his legs, and the deceased’s daughter-in-law suffered minor injuries.

In July 2022, the survivors and estate of the deceased obtained a $750,000 settlement from the atfault trucking company from New York, and an additional $550,000 settlement from three North Caro lina under-insured motorist policies,

their attorneys report.

According to attorney Matthew Al tamura, much of the case revolved around damages and insurance ques tions rather than liability. The defen dant’s trucking company initially of fered their limits of $500,000 which was legally insufficient according to Altamura, because the Federal Mo tor Carrier Act requires $750,000 as minimal liability coverage.

The plaintiffs were awarded $1.3 million for loss of pension, social security benefits, medical expenses and loss of income.

Newton new majority leader; Berger gets nod again

RALEIGH, N.C. (AP) — Incom ing and returning Republicans to the North Carolina Senate chose on Monday a key lawmaker on tax, voting and energy issues to become the chamber’s majority leader for the next two years.

The Senate Republican Caucus, meeting privately, elected Sen. Paul Newton of Cabarrus County to the majority leader’s post, according to a news release. Newton is a retired Duke Energy president for North Carolina first elected to the Senate in 2016.

In a separate meeting Monday, Senate Democrats reelected Sen. Dan Blue of Wake County to anoth er term as minority leader.

Newton succeeds outgoing Sen. Kathy Harrington, who didn’t seek reelection this fall to her Gaston County seat. When Republicans chose her two years ago, Harrington was the first woman to hold the Senate majority leader job since the chamber created it over 40 years ago.

The majority leader presides at caucus meetings in which the ma jority party discusses policy issues and votes, and is usually considered a top lieutenant to the Senate presi dent pro tempore.

The GOP caucus on Monday also agreed to nominate Phil Berger of Rockingham County to a seventh term as president pro tem when the entire chamber votes for the post when the two-year term convenes Jan. 11.

Republicans will hold 30 of the 50 Senate seats — a two-seat increase with the November elections — so Berger is all but assured of retain ing the chamber’s most powerful position. His time holding the job — dating to 2011 — ranks second all-time to late Democratic Sen. Marc Basnight of Dare County, who served 18 years at the top.

Newton has been a co-chairman of the Senate finance and redis tricting and elections committees. He also was heavily involved in ne gotiations over a bipartisan 2021 law that directs the reduction of greenhouse gas emissions by elec tric energy producers, chiefly Duke Energy.

“I’m so appreciative of the support I have received from my colleagues and am ready to build on our prior success of lowering taxes, improv ing the quality of education, and spending responsibly,” Newton said in a news release.

The Senate GOP caucus also on Monday nominated Sen. Ralph Hise of Mitchell County to another term as deputy president pro tempore and reelected Sens. Tom McInnis of

Richmond County and Jim Perry of Lenoir County as majority whips. Blue, who first became Senate Democratic leader in 2014, original ly joined the General Assembly in 1981 in the House. He was the first Black speaker in North Carolina history, serving from 1991 through 1994. Sen. Jay Chaudhuri of Wake County also was reelected minority whip.

House Republicans earlier this month agreed to nominate Rep. Tim Moore of Cleveland County to what would be a record fifth two-year term as speaker. House Democrats will meet Dec. 5 to choose their leaders. Current House Minority Leader Rep. Robert Reives of Cha tham County has said he will seek another two years at the job.

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Attorneys for Plaintiff: Matthew F. Altamura and Shannon L. Altamura of Garrett, Walker, Aycoth & Altamura LLP in Asheboro

Shannon L. Altamura

"Helping lawyers practice better, more efficiently, and more profitably."

North Carolina state Sen. Paul Newton, R-Cabarrus, at podium, speaks while Senate leader Phil Berger, R-Rockingham, listens at a Legislative Building news conference on June, 2, 2021, in Raleigh, N.C.

CASE / Lower court dismissed complaint for lack of standing

duct and (3) likely to be redressed if the court rules in her favor.”

signed, she would be fired for not pass ing the test.

DiCocco resigned and filed a com plaint in the Eastern District of Vir ginia, alleging disparate-impact theo ries of sex discrimination under Title VII and age discrimination under the ADEA.

The government argued that Di Cocco lacked standing. Alternatively, it claimed she had failed to plead an adverse employment action, and that her ADEA claim was barred by sover eign immunity.

The Eastern District of Virginia dis missed DiCocco’s complaint for lack of standing.

Standing

The 4th Circuit panel noted that a plaintiff has Article III standing if “she (1) suffers an injury in fact that is (2) fairly traceable to the challenged con

The district court found that DiCoc co failed to state a valid cause of ac tion because she alleged no injury and therefore lacked standing.

Richardson disagreed.

“[T]his approach improperly con flated the threshold standing ques tion with the merits of her claims,” he explained. “Standing does not turn on whether a plaintiff has definitively stated a valid cause of action. In other words, a valid claim for relief is not a prerequisite for standing.”

Here, DiCocco sufficiently pleaded an injury in fact by alleging that she was injured by a loss of employment and the resulting loss of wages and other benefits.

“Such harms are ‘classic and para digmatic’ injuries for standing purpos es,” Richardson noted.

The judge pointed out that “a plain

tiff’s injury is not fairly traceable to the defendant’s action if the plaintiff ‘independently caused his own injury.’”

But DiCocco’s contentions didn’t show she independently caused her own injuries; her complaint said that, unless she resigned, the BOP would fire her.

“Perhaps Dr. DiCocco’s choice to re sign rather than retake the test was a proximate cause of her injuries. But that does not defeat standing,” Rich ardson wrote.

The judge concluded that DiCocco had sufficiently asserted her injuries were caused by the BOP’s allegedly discriminatory policy that required new hires to take and pass the test or be terminated because, without that policy, she would not have resigned.

Disparate impact

The government originally argued that the suit was barred by sovereign immunity because the ADEA provision

governing federal employees provides no disparate impact cause of action.

Another 4th Circuit panel had agreed, but the decision was vacated after a rehearing en banc.

Prior to oral argument about the standing issue raised here, the gov ernment reversed its position, agree ing that the ADEA permits disparate impact claims by federal employees.

“In light of this unusual change in position, the en banc court returned the case to the panel,” Richardson wrote. “We now remand to permit the district court to consider the ADEA claim, including, should the district court deem it necessary, whether or not the disparate-impact standard provides the appropriate framework for its resolution.”

The court also remanded the ques tion of whether DiCocco’s Title VII claim failed to show an adverse em ployment action to the district court.

New laws have taken effect in North Carolina

RALEIGH, N.C. (AP) — More se vere penalties for committing certain types of arsons and large-scale thefts at stores in North Carolina are among all or portions of 10 new state laws ap proved by the General Assembly this year that took effect last week.

The enacted legislation creates new felony crimes for setting fire to a prison, an occupied commercial struc ture and an unoccupied commercial structure. Someone who commits ar

son also will face a felony if a first re sponder suffers a “serious injury” from the blaze.

Another law attempts to crack down on large, organized thefts at stores. Crimes of “organized retail theft” al ready are on the books, but now there are more serious felonies when the value of property stolen over a 90-day period exceeds $50,000. Store owners also can recover stolen goods more quickly and sue thieves for specific

damages.

One of the new laws starting Thurs day will allow Wildlife Resources Commission officers to accuse some one of a misdemeanor when a person breaks rules the commission creates to respond in an emergency to a seri ous wildlife disease. The previous law had limited such punishments to $25 fines.

Used car dealers also can now face $50 fines if they fail to formally inspect

a vehicle before it’s offered for sale — something they’re already required to do. That’s part of an omnibus motor vehicle and transportation law.

Another new rule taking effect at tempts to remove any enforcement gaps in domestic violence protective orders while waiting for courts to act. This allows a judge to extend such an order temporarily beyond its expira tion date until a hearing to renew it is held.

Joseph

fairness. She is deeply respected by our members and our professional team, and we are excited to have her as our new executive director.”

NCAJ President Valerie Johnson, who served on the search committee, said Leskin impressed the committee with her wealth of experience in the nonprofit realm.

“Shannon’s vast experience as a manager and leader is evident in her work throughout her years at NCAJ,” Johnson said. “She understands our mission and knows how to help us fur ther that mission. As a creative and dedicated leader, Shannon Leskin is the right choice to lead NCAJ.”

Leskin said she was truly honored

to be chosen for the position.

“This organization of dedicated members and professional staff work diligently to further the mission in new, bold and exciting ways,” she said. “Working together in harmony, we will lead NCAJ into the future.”

Over the course of her career, Le skin has worked with nationally known nonprofit institutions in the arts, health and education sectors in cluding The Smithsonian Institution, Crohn’s and Colitis Foundation of America, The United Way of America and Duke University.

She began her tenure at NCAJ as compliance and operations adminis trator in 2019, overseeing compliance and operations for all NCAJ entities and working closely with the executive

director on budgetary and financial management.

Leskin earned a bachelor of fine arts in theatre from Virginia Common wealth University. Since moving from Los Angeles to the Triangle 27 years ago, she has served in board leader ship positions for NC Child, Triangle Day School, Mallarme Chamber Play ers, SEEDS and The Rotary Club of Durham.

The executive director leads the NCAJ staff in its mission to empower a strong community of trial lawyers with duties that include heading up the group’s advocacy and fundraising efforts, promoting growth in member ship and overseeing the continuing le gal education programming. The exec utive director also serves as treasurer

of the NCAJ Political Action Commit tee.

The search for NCAJ’s newest ex ecutive director began in June shortly after Kim Crouch, NCAJ’s previous executive director, announced her resignation. Crouch had led the orga nization since 2017. Leskin served as interim executive director during the transition.

Triangle-based consulting firm moss+ross assisted the NCAJ search committee in conducting the nation wide search to fill the executive direc tor position. Moss + ross conducted indepth interviews with stakeholders, leaders and staff to create a compre hensive job prospectus that was posted on networks across the nation.

Staff report

CAR STRIKE / Camera footage allows for sight-line studies

Continued from 1 ►

at $1,342,848. Combing the area of the collision for the presence of video cameras lead to the discovery of home surveillance camera footage which al lowed for the completion of detailed sight-line studies and speed calcula tions which assisted the parties in re solving this matter without protract ed litigation.

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

Type of Case: Wrongful death and survival claims against the driver of a vehicle and his employer.

Settlement Amount: $7,900,000.00

Plaintiff’s Counsel: Scott C. Evans and James B. Moore III of Evans Moore, LLC

Defense Counsel: Withheld

Insurance Carrier: Withheld

Venue: Withheld

Mediator: Tom Wills

Most Helpful Experts: Andrew O. Wood, J.D. (Economic Loss), Bill Williams of WISAT (Scene Rec reation), and Kim Collins, MD (Pain and Suffering)

Were Liability and Damages Contested: Yes

Opinions

Civil Practice

Subject Matter Jurisdiction – Incom plete Diversity – Limited Partner –Consolidation

In this diversity case, a North Carolina citizen sued an interna tional firm. Neither party apparently realized that, several layers of own ership deep, a North Carolina citi zen held an interest in the firm. This case was later consolidated with a federal-question case; however, this did not cure the jurisdictional defect. The district court lacked jurisdic tion to enter the consolidation order in the first place; moreover, each consolidated case must be analyzed independently for federal court juris diction.

We vacate judgment for the defen dant-firm and remand for dismissal without prejudice.

Plaintiff, a real estate agent, worked with the defendant-firm. After the firm terminated its rela tionship with plaintiff, he filed suit in federal district court on the basis of diversity of citizenship, suing for breach of contract and other state

law claims.

In a separate suit in federal court, plaintiff’s former partner – who also worked with the firm – asserted claims against plaintiff, including a claim under the federal Computer Fraud and Abuse Act. The district court consolidated the cases. This second suit was dismissed by stipu lation prior to trial on plaintiff’s suit against the firm.

On appeal, because defendant’s citizenship was unclear, this court ordered defendant to file a letter pur suant to Fed. R. App. P. 28(h) con veying defendant’s membership and citizenship.

Defendant’s letter showed that, as of the date plaintiff filed his com plaint, defendant Newmark South ern Region, LLC “was wholly owned by NGA, LLC, a Georgia LLC. NGA was wholly owned by Newmark Part ners, L.P., a Delaware limited part nership. The partners of Newmark Partners, L.P. were Newmark Hold ings, L.P., a Delaware limited part nership, and Newmark Group, Inc., a Delaware corporation.” Accord ing to defendant’s letter, the limited partners of Newmark Holdings, L.P. resided in 39 states, plus the District

of Columbia. North Carolina was one such state.

Since plaintiff was also a citizen of North Carolina when he filed his complaint, the district court lacked subject-matter jurisdiction over plaintiff’s claims against defendant before it consolidated this case with a related federal-question case, so the court lacked the power to consolidate the lawsuits in the first place.

Even if we could disregard the dis trict court’s error in exercising juris diction over a matter where no such power truly existed, consolidation could not cure the defect. In consoli dated appeals, each constituent case must be analyzed individually to as certain jurisdiction.

To be sure, vacatur and remand for dismissal now could burden the parties and squander judicial re sources already expended. But the profound burdens on parties and the judiciary, if we were to recognize convoluted jurisdictional exceptions, would greatly outweigh the prejudice to plaintiff and defendant.

Vacated and remanded.

Capps v. Newmark Southern Re gion, LLC (Lawyers Weekly No. 001113-22, 6 pp.) (Per Curiam) 21-1196.

Appealed from USDC at Raleigh, N.C. (Louise Flanagan, J.) Troy Shelton and Matthew Nis Leerberg for appellant; David Paul, Jonathan Sasser and Thomas Segars for appel lees. 4th Cir.

Criminal Practice

Post-Sentence Civil Commitment –Terms of Supervised Release – Mental Illness & Medication

Respondent is a prisoner who (1) suffers from bipolar-type schizoaf fective disorder, (2) is prone to vio lence when he is not medicated, (3) has a history of refusing to take his medications and (4) has been invol untarily medicated while incarcer ated. Near the end of the custodial term of his sentence, the district court considered civil commitment. The district court erred by failing to adequately consider the terms of re spondent’s supervised release in de termining whether civil commitment was necessary to protect the public.

We vacate the civil commitment

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order and remand for further pro ceedings.

Because a basic aim of a commit ment analysis is to predict whether a person would pose a substantial risk to others if released, any restrictions imposed by the sentencing court— which are themselves designed to protect the public upon the person’s release, are inherently relevant.

The commitment court said noth ing about the terms of respondent’s supervised release, even those di rectly addressing the central issue in dispute: The court’s brief mentions of supervised release focused only on its duration and the commitment court’s inability to change it.

Before prolonging a person’s loss of liberty under 18 U.S.C. § 4246, courts must consider all evidence bearing on the issue, including whether and how well other preexist ing restrictions on the person’s con duct (including an unserved term of supervised release) could reduce the risks posed by the person’s release. Because the record leaves us unable to tell whether the district court ap propriately considered the terms of respondent’s supervised release, we vacate the commitment order and re mand for further proceedings.

Dissent

(Richardson, J.) The commitment court gave adequate consideration to the terms of respondent’s three-year supervised release, focusing on the fact that they were of limited dura tion. Regardless of what protection was offered by the terms of respon dent’s supervised release, the com mitment court was concerned that such protection would end soon.

United States v. Williams (Law yers Weekly No. 001-114-22, 15 pp.) (Toby Heytens, J.) (Julius Richard son, J., dissenting) No. 22-6464. Ap pealed from USDC at Raleigh, N.C. (Earl Britt, S.J.) Jennifer Claire Leisten and Alan DuBois for appel lant; Genna Danelle Petre and Mi chael Easley for appellee. 4th Cir.

Criminal Practice

Search & Seizure – Traffic Stop Exten sion – Consensual

Defendant was stopped for a win dow-tint violation; a deputy sheriff told defendant that he would receive a warning ticket and, as long as his license and registration checked out, he would be free to go. After the

deputy returned defendant’s license and registration, defendant asked whether he should have the window tint removed. After a little conversa tion about the state of defendant’s car, the deputy asked for permission to search the car, and defendant con sented. Under these circumstances, the search was not a result of an im permissibly extended traffic stop.

We affirm the trial court’s denial of defendant’s motion to suppress the cocaine found in the console of his car.

Although the mission of the traf fic stop was completed prior to the deputy’s request for permission to search, since the deputy had previ ously told defendant he would be free to go once his license and registra tion had checked out, a reasonable person in defendant’s position would have felt free to leave once the depu ty returned his license and registra tion. The remainder of the encounter was consensual.

It is true that multiple officers were present at the traffic stop. How ever, one of the deputies, standing on the passenger’s side of defendant’s vehicle, explained to defendant that the officers operated as a team. None was positioned to prevent the depar ture of defendant’s vehicle.

No error.

State v. Outlaw (Lawyers Weekly No. 012-388-22, 17 pp.) (Lucy Inman, J.) Appealed from Wayne County Superior Court (William Bland, J.) Robert Pickett for the state; Stephen Driggers for defendant. 2022-NC COA-617

Criminal Practice

Joinder – Waiver – Marijuana – Intent to Sell

When the state moved for join der of offenses committed on two different dates, defendant’s counsel unsuccessfully opposed the motion. Thereafter, throughout the entirety of the trial proceedings, defendant’s trial counsel neither renewed the ob jection to joinder nor moved to sever the charges. Accordingly, defendant waived his right to raise the issue of severance and that issue is not prop erly before us.

We find no error in defendant’s convictions for possession with in tent to manufacture, sell, or deliver cocaine (PWIMSD), PWIMSD mari juana, selling cocaine, manufactur ing cocaine, and attaining habitual felon status.

The record indicates that, on 18

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March 2016, defendant was found in a home from which the police seized two jars of marijuana, a bag of marijuana, a “marijuana cigar”, two cell phones, and a digital scale; this was in addition to a plastic bag of cocaine, a glass smoking device, and free-standing cocaine that were also seized at the scene. During this search, defendant uttered, “It’s all mine.” Previously, on 3 February 2016, when a confidential informant met with defendant to purchase crack cocaine, the two also discussed “getting [one’s] money’s worth” for marijuana and the quality of the marijuana in defendant’s possession.

Even assuming arguendo that the quantity of the marijuana at issue, unspecified in the record, is insuffi cient by itself to support an inference of intent to sell or deliver the con trolled substance, the totality of the circumstances was sufficient to cre ate a question for the jury. A rational jury could have found that defendant possessed the requisite intent to sell or distribute marijuana. Accordingly, the trial court did not err in denying defendant’s motion to dismiss with respect to the PWIMSD marijuana charge.

State v. Boswelf (Lawyers Weekly No. 012-389-22, 11 pp.) (John Ar rowood, J.) Appealed from Onslow County Superior Court (Charles Henry, J.) Katherine McCraw for the state; Narendra Ghosh for defen dant. 2022-NCCOA-608

Domestic Relations

Separation Agreement – Monthly Payments – Laches – No Prejudice –Post-Complaint

Installments

The parties’ separation agree ment required the defendant-Hus band to make monthly payments of $1,550.60 to the plaintiff-Wife from March 2006 to March 2026. Although Husband stopped mak ing such payments sometime before 2009, Wife’s February 2019 claim for breach of contract was not barred by laches, given that Husband failed to show prejudice. Husband argues he could not have reasonably foreseen that he would need to save funds to pay Wife, but Husband has failed to present any records indicating a lack of savings, inability to pay, or any representation by Wife that she had forgiven the debt.

We affirm the trial court’s $100,789 judgment in favor of Wife, representing the payments Husband missed in the three years prior to the filing of the complaint added to the payments that accrued and went un paid between the dates of the filing of the complaint and the hearing on this matter.

Husband also argues that the trial court erred by awarding dam ages for the monthly installments that became due only after Wife com menced this action. However, Wife’s complaint did limit her prayer for relief to the recovery of installments prior to the filing of her complaint, additionally alleging that Husband is required to make the payments until March 2026. Wife prays for “all damages incurred as a result of Defendant’s breach” and for “such other and further relief as the Court may deem just and proper.” The trial court did not err in awarding Wife damages for the installments Hus band missed through the date of the hearing.

Suozzo v. Suozzo (Lawyers Weekly No. 012-390-22, 5 pp.) (Chris Dillon,

J.) Appealed from Pitt County Supe rior Court (Marvin Blount, J.) Teresa DeLoatch Bryant for plaintiff; Wal ton Kitchin for defendant. 2022-NC COA-620

Tort/Negligence

Defamation & Negligence – Involun tary Commitment Petition

Plaintiff alleged that defendant defamed her by filing a petition to have her involuntarily committed. According to defendant’s affidavit, (1) a police officer informed defen dant that plaintiff – defendant’s wife at the time – had scattered broken glass in the driveway of their neigh bor and was in need of treatment and (2) plaintiff had a history of mental health concerns, typically manifest ing in paranoia regarding the neigh bor (plaintiff believed the neighbor had hacked the parties’ home’s tech nology, surveilled them, poisoned her, stalked her, and caused other damage to their home). Since plain tiff forecasted no contrary evidence and the record shows that defen dant’s challenged statements were not false, the trial court did not err in determining that there were no is sues of material fact with respect to plaintiff’s defamation claim.

We affirm summary judgment for defendant.

With respect to plaintiff’s negli gence claim, assuming defendant had a duty not to recklessly file a commitment petition, plaintiff did not show that he breached that duty by relying on the police officer’s state ment, since defendant also relied on his years of experience with plaintiff.

Zhang v. Zhang (Lawyers Week ly No. 012-391-22, 9 pp.) (Jefferson Griffin, J.) Appealed from Wake County District Court (Mark Davis, J.) Leilei Zhang, pro se; Judy Tseng for defendant. 2022-NCCOA-621

Tort/Negligence

Auto Accident – Damages – Expert Opinion – Movement of Surgical Hardware

A month after plaintiff underwent back surgery, which included the placement of hardware, plaintiff was a passenger in a vehicle that was rear-ended by the defendant-driver. While plaintiff’s treating physician was in a better position to opine on the accident’s impact on the displace ment of her surgical hardware, de fendant’s expert had enough infor mation from plaintiff’s post-accident medical records to opine that the accident did not cause the displace ment of plaintiff’s hardware, that the displacement of plaintiff’s hard ware was a slow process rather than a sudden event, that her weak bones were not able to hold the hardware installed in place, and that her hard ware began displacing before the ac cident.

The trial court did not abuse its discretion by admitting the testimo ny of defendant’s expert witness.

Brown v. McLeod (Lawyers Week ly No. 012-392-22, 12 pp.) (Chris Dil lon, J.) (Darren Jackson, J., concur ring in result only without separate opinion) Appealed from Guilford County Superior Court (John Craig, J.) Cathy Williams for plaintiff; Kar en Strom Talley and Nicole Scallon for defendant. 2022-NCCOA-634

Real Property

Sale Contract – Specific Performance – Fraudulent Inducement Defense

Although the defendant-seller be lieved his real estate agent (who is not a party to this action) was acting only in defendant’s interest, defen dant initialed a contract provision stating that the agent was acting as a dual agent, representing both de fendant and the plaintiff-buyer. Fur ther, defendant spoke to the agent about his concerns with selling the land, including his concerns about an easement shown on a survey map, and the agent said he would “work on it” once the contract was executed. Nevertheless, defendant was bound by the contract as executed.

We affirm summary judgment for plaintiff.

F6 Land Co. v. Edwards (Law yers Weekly No. 012-393-22, 11 pp.) (John Tyson, J.) Appealed from Nash County Superior Court (Jeffery Fos ter, J.) Albert Thomas and William Farris for plaintiff; Dudley Whitley and Greg Crumpler for defendant. 2022-NCCOA-636

Arbitration

Unsigned Contract – Acceptance by Actions – Senior Living Facility

Plaintiff’s attorney-in-fact signed a “Resident Agreement” before plain tiff moved in to defendants’ senior living facility. The Resident Agree ment includes an arbitration clause. Although no one signed the Resident Agreement on behalf of defendants, defendants accepted the contract by accepting plaintiff as a resident, per forming obligations under the Resi dent Agreement and accepting fees from plaintiff. Both parties accepted the Resident Agreement and are bound by its arbitration provision.

We reverse the trial court’s denial of defendants’ motion to compel arbi tration. Remanded with instructions to stay the proceedings and compel arbitration.

Where plaintiff alleges that she was injured by another resident at defendants’ facility, her claim con cerns her residency at defendants’ facility and falls within the scope of the arbitration clause.

Gunter v. Thrive Senior Living, LLC (Lawyers Weekly No. 012-39422, 6 pp.) (Chris Dillon, J.) Appealed from Mecklenburg County Supe rior Court (Casey Viser, J.) Chad McGowan and Jordan Calloway for plaintiff; Erin McNeil Young, Laura Anne Gregory and Briana Kelly for defendants. 2022-NCCOA-637

Banks & Banking

Loan Negotiations – Capital Gains Deferral Period – Duty to Negotiate in Good Faith

Where the parties had no bind ing loan agreement, the defendantbank is not liable for failing to tell the plaintiff-borrower how much of an equity injection would result in loan approval. The court declines to address whether a claim for breach of a duty to negotiate in good faith is cognizable in North Carolina.

We affirm summary judgment for the bank.

Plaintiff planned to sell certain

property and build a new hotel. In order to defer capital gains taxes, plaintiff was required to, inter alia, reinvest all gains on the sale into construction within 180 days after the sale.

In addition to the sale proceeds, plaintiff required a construction loan to build the new hotel. Plaintiff obtained a loan approval from the bank, but the loan approval expired before plaintiff had a contract to pur chase the land on which it intended to build the new hotel, a construction contract or even a firm construction quote from a general contractor.

The parties began negotiating the loan again. Without waiting to be sure a new loan would be approved, plaintiff sold its property. The loan was not approved. Plaintiff obtained a loan from a different bank, but not within 180 days after the sale of its property.

Fraud

There is no enforceable loan agree ment appearing in the record, and plaintiff has not shown that the bank breached a duty to disclose a mate rial fact relating to a future transac tion.

Presuming, without deciding, that the bank had a duty to disclose the amount of an equity injection it would require, plaintiff has not fore cast sufficient evidence to refute the testimony of bank personnel that the bank never determined a spe cific amount of equity injection that would have resulted in the loan be ing approved.

Plaintiff cannot show it reason ably relied on any assurance that it would receive a loan from the bank. No record evidence suggests the bank induced plaintiff’s decision to start the clock on its § 1031 “like-kind” exchange by selling its existing prop erty without having first obtained a construction quote or securing its fi nancing.

Duty to Negotiate in Good Faith

North Carolina’s appellate courts have not recognized a claim for breach of a duty to negotiate in good faith. While our Business Court has done so, we decline to address whether a claim for breach of a duty to negotiate in good faith is cogni zable in North Carolina, considering our Supreme Court’s longstanding precedent in Boyce v. McMahan, 285 N.C. 730, 208 S.E.2d 692 (1974) that “a contract, or offer to contract, leav ing material portions open for future agreement is nugatory and void for indefiniteness.”

Further, plaintiff has admitted there was no written agreement to continue negotiating in good faith, and no bank representative commu nicated an agreement to negotiate the loan in good faith.

Affirmed.

HD Hospitality, LLC v. Live Oak Banking Co. (Lawyers Weekly No. 012-395-22, 21 pp.) (Fred Gore, J.) Appealed from New Hanover Coun ty Superior Court (Kent Harrell, J.) Lorin Lapidus and Gray Wilson for plaintiff; Henry Kitchin and Abigail Golden for defendant. 2022-NC COA-638

Domestic Relations

Parent & Child – Termination of Parental Rights – Failure to Make Progress – Serious Medical Needs

The undisputed record shows that the respondent-mother was aware

that “Ellie” was removed from her care because of Ellie’s failure to thrive, missing doctor’s appoint ments and being late for surgeries. Thus, even if the trial court never ex plicitly ordered respondent to comply with her case plan – a case plan she personally agreed to and signed – re spondent cannot use that omission to avoid an adjudication that she will fully failed to make progress to cor rect the conditions that led to Ellie’s removal.

We affirm the termination of re spondent’s parental rights.

The record shows that, even after Ellie’s removal and the provision of services to respondent, respondent still failed to ensure that Ellie reli ably received necessary medical care. Respondent failed to attend needed training to handle Ellie’s G-Tube, oxygen and injections. During a trial home placement, she failed to pro vide Ellie with necessary nutrition, resulting in extremely detrimental weight loss. After Ellie had been in DSS custody for more than two years, respondent remained unable to provide Ellie with the consistent, on-going care necessary to treat her medical conditions.

Affirmed.

In re E.G. (Lawyers Weekly No. 012-396-22, 13 pp.) (Per Curiam) Appealed from Robeson County Dis trict Court (Angelica McIntyre, J.) Edward Yeager for petitioner; Peter Wood for respondent; Michelle For myDuval Lynch for guardian ad li tem. 2022-NCCOA-639

Domestic Relations

peal, the trial court did not abuse its discretion in denying respondent’s motion to continue.

We affirm the termination of re spondent’s parental rights.

Respondent merely suggests that because the hearing had been contin ued “eleven straight” times due to the COVID-19 pandemic “in which ap pearances were apparently excused for everybody, [respondent] may have reasonably expected that her appear ance might again be excused, and the case continued again . . . especially since the pandemic was still raging at the time.” Respondent’s argument is unconvincing.

The continuance orders do not show that the termination hearing was continued 11 times in a row sole ly for the COVID-19 pandemic. In deed, the last six continuance orders provided other reasons for the con tinuance aside from the COVID-19 pandemic. Accordingly, we cannot say that the trial court abused its discretion in denying the continu ance.

Additionally, respondent failed to argue how she was prejudiced by the trial court’s denial of her motion to continue. Respondent does not claim in her brief that she intended to tes tify at the hearing or identify any evidence or defenses she was unable to present due to her absence. Given counsel’s advocacy on behalf of re spondent at the termination hearing and the unchallenged findings of fact supporting the termination of her pa rental rights, it is unlikely that the result of the termination proceedings would have been different had the hearing been continued.

Affirmed.

– Termination of Pa rental Rights – Attorney’s Withdrawal

Parent & Child

After the respondent-mother failed to appear at the hearing on DSS’s petition to terminate her pa rental rights, and after the trial court denied respondent’s counsel’s motion to continue the hearing for a second time, the trial court allowed counsel’s motion to withdraw. The record does not show that (1) counsel gave re spondent notice of her intent to with draw from representation prior to the hearing or (2) the trial court inquired into what efforts, if any, counsel had made to contact respondent and to inform respondent of her intention to withdraw from representation; consequently, the trial court erred by allowing counsel to withdraw from representation without conducting an adequate inquiry into the circum stances surrounding the making of the motion to withdraw.

We vacate the order terminating respondent’s parental rights and re mand for a new termination of pa rental rights hearing.

In re J.M. (Lawyers Weekly No. 012-397-22, 9 pp.) (Toby Hampson, J.) Appealed from Forsyth County District Court (Theodore Kazakos, J.) Theresa Boucher for petitioner; Christopher Watford for respondent; Matthew Wunsche for guardian ad litem. 2022-NCCOA-641

Domestic Relations

Parent & Child – Termination of Parental Rights – Continuance Denial –

COVID-19 Delays

Where the respondent-mother failed to provide any reason to justify a continuance of the hearing on the petition to terminate her parental rights, either at the hearing or on ap

In re J.B.P. (Lawyers Weekly No. 012-398-22, 9 pp.) (Per Curiam) Ap pealed from Buncombe County Dis trict Court (Ward Scott, J.) Suzanne Avett for petitioner; Michael Tousey for guardian ad litem; Peter Wood for respondent. 2022-NCCOA-640

Tort/Negligence

Failure to Yield Right of Way – Con tributory Negligence Defense – Sud den Emergency Doctrine

Defendant-driver Severino Ramirez admitted in his deposition testimony that, when he approached the stop sign at the intersection of NC Highway 24 and Blake Street, plaintiff – who was traveling on NC 24 – had the right of way. Yet Ramirez turned onto NC 24 on the assumption that plaintiff would switch lanes. In other words, Ramirez admitted that, when he turned onto NC 24, he cre ated a scenario in which plaintiff was likely to collide with defendants’ truck unless plaintiff was able to avoid him. Ramirez’s testimony es tablished that he breached the duty of care he owed to plaintiff.

We affirm summary judgment for plaintiff.

Deposition testimony also defeats the defense of contributory negli gence. When Ramirez turned right onto NC 24 and entered plaintiff’s lane, Ramirez knew, per his own ad mission, that he created a scenario in which plaintiff would have col lided with defendants’ truck unless plaintiff was able to move onto a dif ferent lane. This testimony, in addi tion to plaintiff’s testimony about his quick determination that “jerk[ing] the wheel” would result in a higher likelihood of survival for him, estab

lished that plaintiff was faced with an emergency when defendants’ truck pulled onto his lane on NC 24. Accordingly, plaintiff met his burden under the sudden emergency doc trine.

Plaintiff thought he was going to die and had to react instantaneous ly here. Furthermore, plaintiff, as the driver of a vehicle having the right of way at an intersection, was entitled to assume and to act, until the last moment, on the assumption that defendants’ vehicle, approach ing the intersection, would recognize his right of way and would stop or reduce speed sufficiently to permit plaintiff to pass through the intersec tion in safety. Thus, defendants’ ar guments that plaintiff “disregarded” defendants’ truck when he noticed it approaching the intersection or that plaintiff “failed to properly and timely apply the brakes” are of no moment and do not create a genuine issue of material fact as to plaintiff’s contributory negligence under the sudden emergency doctrine.

Affirmed.

McDonald v. Ramirez (Lawyers Weekly No. 012-399-22, 15 pp.) (John Arrowood, J.) Appealed from Cumberland County Superior Court (Claire Hill & Gale Adams, JJ.) Lee Johnson for defendants; Jordan and Rebecca Britton for plaintiff. 2022-NCCOA-643

Domestic Relations

2009 Consent DVPO – Allegations of Abuse – ‘Finding’ of Abuse

In 2009, defendant consented to a domestic violence protective order; now, he seeks a declaration that the consent DVPO was void. Plaintiff’s allegations that defendant threat ened to punch and kill her were pend ing when the consent DVPO was entered, so the trial court retained to enter the consent DVPO under Bryant v. Williams, 161 N.C. App. 444, 588 S.E.2d 506 (2003). And, al though it was denominated a conclu sion of law rather than a finding of fact, the trial court determined that defendant had “committed acts of do mestic violence against the plaintiff.” Therefore, this case is distinguish able from Kenton v. Kenton, 218 N.C. App 603, 724 S.E.2d 79 (2012), and the trial court was authorized to en ter the consent DVPO.

We affirm the trial court’s denial of defendant’s motion to set aside the DVPO. We note the limited impact of our decision on future cases. G.S. § 50B-3(b1), effective since 1 October 2013, now expressly provides for do mestic violence protection orders en tered by consent without findings of fact and conclusions of law.

Kaser v. Zwick (Lawyers Weekly No. 012-400-22, 12 pp.) (Toby Hamp son, J.) Appealed from Mecklenburg County Superior Court (Tyyawdi Hands, J.) No brief filed for plain tiff; Anton Lebedev for defendant. 2022-NCCOA-642

Domestic Relations

Parent & Child – Custody – Insuffi cient Findings

In support of its award of custody to the defendant-Father, all the trial court found was that there had been a domestic violence protective order taken out against the plaintiff-Moth

er and that she was living with her own mother. These findings were insufficient to support the custody award.

We vacate the custody order and remand for further proceedings. On remand, the trial court may consider more evidence or simply make addi tional findings based on the evidence that was presented at the previous hearing.

The parties both appeared pro se, and the evidence was not well developed. However, there is evi dence in the record that Father had primary custody of the children and that he was caring, had a good sup port system, and was better at set ting boundaries for the children. In addition, other evidence concerning issues with Mother, coupled with her past DVPO, might be enough to support the trial court’s order that it would be in the best interest of the children to continue living with Fa ther. However, the court must make sufficient evidentiary findings to al low us to review the matter.

Dragonette v. Taylor (Lawyers Weekly No. 012-401-22, 5 pp.) (Chris Dillon, J.) Appealed from Stanly County District Court (John Nance, J.) Rebecca Watts for plaintiff; Curtis Taylor, pro se. 2022-NCCOA-635

Criminal Practice

Satellite-Based Monitoring – Aggra vated Offense – Reasonable Intrusion

Where defendant pled guilty to second-degree rape, he is an aggra vated offender with a diminished ex pectation of privacy. Considering the reasonableness of the search (i.e., lifetime satellite-based monitoring, or SBM) by balancing the relevant factors and examining the totality of the circumstances, we weigh the state’s significant interest in protect ing the public and the recognized efficacy of SBM in promoting that interest against the incremental in trusion of lifetime SBM into defen dant’s diminished expectation of pri vacy as an aggravated offender and conclude that the SBM order as im posed is reasonable under the Fourth Amendment.

We affirm the trial court’s imposi tion of lifetime SBM.

State v. Cooper (Lawyers Week ly No. 012-402-22, 5 pp.) (Richard Dietz, J.) Appealed from Beaufort County Superior Court (Wayland Sermons, J.) On remand from the N.C. Supreme Court. Sonya Callo way-Durham for the state; Nicho las Woomer-Deters for defendant. 2022-NCCOA-644

Criminal Practice

Jury Instructions – Entrapment –Methamphetamine Sales

Where (1) defendant admitted that he used marijuana but testified that he had nothing to do with meth amphetamine and only sold some be cause his childhood friend, Kimberly (who, unbeknownst to defendant, was acting as a confidential infor mant for law enforcement), begged him to do so; (2) the idea to exchange marijuana and meth for money ap pears to have come from Kimberly both times; and (3) defendant had no prior history of meth-related convic tions, there was evidence that defen dant was not predisposed to possess or sell meth and therefore agents of law enforcement induced defendant’s

behavior in this regard. Accordingly, defendant was entitled to a jury in struction on entrapment.

Although the trial court erred by failing to instruct the jury on entrap ment, the error was not prejudicial. There was a plethora of evidence that defendant knew before each drug purchase that he was providing the methamphetamine and marijuana for an undercover law enforcement agent, Sergeant Jagger Naves, rath er than for Kimberly, suggesting that Kimberly acted as an intermediary for the drug exchange rather than being the recipient of a favor. Indeed, at each transaction, Naves provided the cash that was exchanged for the drugs; and, at the first exchange, defendant separately provided Kim berly with what appeared to be a sep arate, small bag of marijuana, sug gesting defendant understood that Naves’s drugs were not Kimberly’s drugs and that he was not providing drugs for Kimberly.

We find no error in part and no prejudicial error in part as to defen dant’s convictions for two counts of possession with intent to sell or de liver marijuana, two counts of pos session with intent to sell or deliver methamphetamine, two counts of selling methamphetamine, and at taining habitual-felon status.

Defendant’s claim that he would not otherwise have sold or been around methamphetamine if not for Kimberly’s involvement is further undermined by his knowledge of where to obtain methamphetamine, his implied familiarity with dosage of methamphetamine in his testi mony that he believed the metham phetamine to be “harmless” due to the small quantity, and that he sold methamphetamine to Naves on two separate occasions. In light of the evidence of his predisposition to sell methamphetamine, we conclude that there was not “a reasonable possibil ity that, had the error in question not been committed, a different result would have been reached at the trial . . . .” G.S. § 15A-1443(a). As a result, defendant was not prejudiced by the trial court’s failure to instruct on en trapment.

State v. Hayes (Lawyers Weekly No. 012-403-22, 20 pp.) (Hunter Murphy, J.) (Toby Hampson, J., con curring in the result without sepa rate opinion) Appealed from Rowan County Superior Court (William Wood, J.) Carl Newman for the state; Mark Hayes for defendant. 2022-NC COA-646

Criminal Practice

Forcible Rape – Constructive Force –Alzheimer’s Patient

Where the victim was a nonver bal, immobile late-stage Alzheimer’s patient, the defendant-certified nurs ing assistant used constructive force when he engaged in vaginal inter course with the victim. Constructive force is demonstrated by proof of threats or other actions by the defen dant which compel the victim’s sub mission to sexual acts. Having sexual intercourse with another person who is mentally defective or incapacitated and statutorily deemed incapable of consenting—just as with a person who refuses to consent—involves the use or threat of violence to the per son. Therefore, engaging in a sexual act with a person who is mentally defective inherently involves the use or threat of force, thus satisfying the conditions required for a showing of

constructive force. The trial court’s in struction to the jury that “[c]onstruc tive force is also inherent to having sexual intercourse with the person who is deemed by law to be unable to consent,” correctly, albeit indirectly, states the applicable law.

We find no error in defendant’s con viction of first-degree forcible rape.

Defendant contends that the vic tim’s mental injuries were merely the res gestae results present in every forcible rape and did not extend for an appreciable amount of time, with the victim’s fearful behavior lasting only five months. However, the vic tim’s injuries did not extend for lon ger because she died five months after the rape due to multiple urinary tract infections.

The state presented evidence of se rious personal injury. The victim sus tained multiple physical injuries, in cluding two vaginal tears, bruises on the legs and arms, and a skin tear two centimeters in length. These injuries were particularly dangerous consid ering the physical and mental status of the elderly victim. Prior to the rape, the victim never suffered from uri nary tract infections, but afterwards, she chronically suffered from urinary tract infections “back to back to back.”

There was also evidence of mental injury. Witnesses testified to a drastic change in the victim’s demeanor, from being “joyous [and] happy” to “anx ious and withdrawn” around anyone that was not her family. The victim refused to accept food from anyone other than her daughter, refused physical contact, and became “petri fied” around male attendants.

Viewing the evidence in the light most favorable to the state, we hold a reasonable juror could find the victim suffered serious personal injury, phys ical and/or mental, which is necessary to support a conviction for first-degree forcible rape.

No error.

State v. Kariuki (Lawyers Weekly No. 012-404-22, 15 pp.) (Fred Gore, J.) Appealed from Johnston Coun ty Superior Court (Claire Hill, J.) Anne Brown for the state; Candace Washington for defendant. 2022-NC COA-647

Criminal Practice

Statutory Rape – Confession – Corpus Delicti – Sufficient Corroboration

Even though the 11-year-old victim only specified two instances of vaginal intercourse with defendant, her step father, the state presented sufficient evidence to corroborate defendant’s confession and to convict him of three counts of statutory rape.

We find no error in defendant’s conviction for three counts of statu tory rape.

In his statement to police, defen dant confessed to having “sex” and do ing “it” with victim “Becky” on four or five occasions. Becky recounted three assaults, two of which definitely in volved vaginal intercourse; however, she could not recall the specific details of the sexual acts that defendant per petrated during the first assault.

Nevertheless, Becky’s mother caught defendant raping Becky. She asked defendant “how long this had been going on,” and defendant re sponded “a couple of weeks . . . the first time was in our bed, the second time was in the [garage,] and the third time is now.” Thus, defendant admit ted that he had done “this,” what his

wife witnessed as vaginal-penile penetration, a total of three times.

Furthermore, living in the same household as the victim, defendant had ample opportunity to rape Becky. And defendant’s confession and corroborating evidence show that defendant was familiar with details related to the crimes likely to be known only by the perpetrator, such as the location, frequency and timing of each sex offense.

Thus, the state presented sufficient corroborative evidence of defendant’s confession.

No error.

State v. Croteau (Lawyers Weekly No. 012-405-22, 11 pp.) (Lucy Inman, J.) Appealed from Alexander County Superior Court (Joseph Crosswhite, J.) Denise Stanford for the state; Michael Spivey for defendant. 2022-NCCOA-645

Criminal Practice

between the first time defendant raped the victim and the time he carved his name into her back. Nevertheless, these offenses could be joined for trial because they shared a transactional connection: (1) both occurred at defendant’s residence, (2) both involved the same defendant and victim, (3) both occurred while defendant and the victim were involved in a parasitic relationship where defendant was in a position to exercise domineering control. Despite the lapse in time, these offenses were part of a series of acts or transactions connected together through a relationship fraught with abuse and domestic violence such that the trial court properly found a transactional connection.

We affirm the trial court’s grant of the state’s motion for joinder and denial of defendant’s motion for severance.

tim, abused his father, threatened the victim’s family, and exhibited multiple personalities.

State v. Whitaker (Lawyers Weekly No. 012-406-22, 9 pp.) (April Wood, J.) Appealed from Surry County Superior Court (Angela Puckett, J.) John Oats for the state; Mark Montgomery for defendant. 2022-NCCOA-648

Criminal Practice

Home Invasion – Evidence Exclusion –Accomplice Testimony

Where defendant was tried pursuant to a theory of acting in concert, and where his own testimony admitted his participation, the trial court did not err in excluding the testimony of another participant.

Civil Practice

Service of Process – Domestic Relations – Divorce

The defendant-Husband successfully challenged the divorce judgment granted to the plaintiff-Wife, asserting that he was never served with process.

As many as 11 months elapsed

Contrary to defendant’s argument, since his cruelty transpired during the course of an abusive relationship, evidence of the rape and assault would have been admissible in separate trials under N.C. R. Evid. 404(b). Rule 404(b) would also have permitted the admission at separate trials of witness testimony that defendant beat the vic-

We find no error in defendant’s convictions for murder, rape, arson and burglary.

State v. Williams (Lawyers Weekly No. 012-407-22, 9 pp.) (Richard Dietz, J.) Appealed from Robeson County Superior Court (James Gregory Bell, J.) Amy Kunstling Irene for the state; Jarvis John Edgerton for defendant. 2022-NCCOA-649

Wife contends that Husband’s and his sister’s testimonies “that the signature on the return receipt was not his” are insufficient to show the signature was forged because their testimonies are “biased.” Wife demands corroboration of the testimony of Husband and his sister, but there is no specific requirement for corroboration of testimony regarding signatures or a lack thereof on process documents, and bias does not make evidence incompetent. Potential bias is simply a factor for the trial judge to consider in considering credibility of the evidence.

We affirm the trial court’s order setting aside and voiding the divorce judgment for lack of service of process.

Sisoukrath v. Sisoukrath (Lawyers Weekly No. 012-408-22, 9 pp.) (Donna Stroud, C.J.) Appealed from Watauga County District Court (Larry Leake, J.) Nathan Miller for plaintiff; John Vermitsky for defendant. 2022-NCCOA-666

Joinder – Rape & Assault – Transactional Connection – Abusive Relationship

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