QUESTIONS WITH...

Olivia Osburn

Attorney Olivia Osburn was recently a recipient of the North Carolina State Bar Pro Bono Student Award for the legal services she provided to the community while attending Wake Forest University School of Law. Osburn served as the executive director of the Pro Bono Program, was a founding member of the Medical Legal Partnership Pro Bono Clinic and volunteered as a national eviction data analyst.

Osburn graduated summa sum laude from the University of Texas at Austin in 2019 with a degree in health and society. She graduated cum laude from Wake Forest University School of Law in 2022 where she focused on health care. In past summers, Osburn worked for the U.S. Attorney’s office and the General Counsel for the National Guard Bureau.

Most recently, Osburn was a summer associate in Shumaker’s Charlotte office, which prepared her well to step into her role as associate in Shumaker’s Health Care Service Line, where she primarily practices health law and medical malpractice matters.

In the following Q&A, Osburn chats with North Carolina Lawyers Weekly about pro bono work, health law and the justice gap.

In the summer after my first year of law school, I became much more heavily involved in Pro Bono work, particularly in response to the eviction crisis the country was facing during the height of the COVID-19 pandemic. I began working on a project to inform tenants and landlords about the emergency laws being passed with respect to rent, utilities, and other housing costs. Through that work, I met Professor Emily Benfer, who is an extremely accomplished legal advocate, focusing on addressing and dismantling health justice barriers. When she began her employment at Wake Forest University School of Law, she offered me and three other students the opportunity to brainstorm, create, and develop a Medical Legal Partnership. A medical legal partnership is a system which finds legal solutions to health problems. Legal advocates and lawyers work alongside health care providers to detect, address, and prevent health-harming social conditions for people and communities. For exam- ple, if a patient presents with symptoms of chronic respiratory distress, they are screened for housing quality issues. If their home has asbestos or mold in it, a member of the clinic can represent them to ensure their landlord performs abatement procedures. The Medical Legal Partnership began officially seeing patients in my third year of law school. Working with my clients and colleagues to see how the intersection between health and law can change a life was one of my most rewarding experience to date.

Q: What changes do you hope to see to in the legal field to work toward bridging the justice gap?

I believe that a legal education is a gift, and a privilege. Many of the injustices communities face today are due to lack of access to information. It’s not usually a complex legal case or procedural issue, but rather not knowing their rights or understanding the steps they need to take that might help address issues. Attorneys and legal professionals work hard to gain the knowledge they have, and I think we have a duty to share that knowledge with others and use it to better our neighborhoods, cities, states, country, and beyond. My hope is that the legal community understands how the information they may take for granted can have such an important impact. I hope we can prioritize using our education to help empower those around us.

Q: What aspect of heath law initially intrigued you?

I received my undergraduate degree at the University of Texas at Austin, majoring in Health and Society, with a focus on food and nutrition access. Through this degree, I studied how health patterns, health behavior, medical care, and healthy policy differ across countries in both culturally and historically to determine how these factors impact the economy, education, and overall health of communities. I developed a specific interest in food insecurity when I worked for the Hunger sion for service into others and expand the network of law students, attorneys, and legal professionals who can serve in pro bono roles. Further, I strive to improve the transparency and relationship between clients seeking services and advocates who are there to help. As we continue to build trust with communities that have faced injustices or are disproportionately impacted, I believe we can learn from each other and work towards a more equitable environment.

Free America Child Hunger Strategy campaign, and when I studied abroad in South Africa for an international dietetic field study. These experiences drove me to further pursue my passion for exploring the ever-growing implications of health care on our society through a legal lens.

Q: What are some ways you hope to continue improving access to legal resources for underserved communities throughout your career?

4 5 3 5535 Currituck Drive, Suite 210 Wilmington, NC 28403

While I’ve enjoyed personally serving the community through local pro bono experiences, I hope to develop a platform to inform others about the accessibility of pro bono opportunities. As I grow in my professional career, I would like to instill my pas-

Q: If you weren’t an attorney, what would you be doing for a living?

Our Wilmington O ce’s New Address Is We’ve Moved!

Court of Appeals reverse’s trail court decision

Search & Seizure – Good Faith Exception – CSLI Historical Data –Statutory Order

A detective failed to show probable cause for an order to obtain defendant’s historical cellphone location data when he based his application on uncorroborated information from an anonymous source, who was not shown to be reliable. Moreover, there is no good faith exception to the exclusionary rule under the North Carolina Constitution.

We reverse the trial court’s denial of defendant’s motion to suppress. Defendant is entitled to a new trial.

A sheriff’s detective submitted an affidavit to Judge James Bell, along with an application for an order pursuant to 18 U.S.C. § 2703(d) to obtain defendant’s cell phone records, including geo-location.

Judge Bell granted the application.

The detective used phone company updates, provided in 15-minute intervals, to track defendant’s trip from Wilmington to Hayward, California, and back again. Defendant’s car was stopped and searched; officers found a trafficking quantity of cocaine.

Although § 2703(d) only requires a showing of “reasonable grounds” for issuance of an order thereunder, Carpenter v. United States, 201 L. Ed. 2d 507 (2018), ruled that probable cause was required before police could obtain historical cellsite location information (CSLI).

Given the five- to seven-minute delay in the detective’s receipt of location coordinates from the phone company, the CSLI provided to the detective was historical rather than real-time. Consequently, the detective was required to show probable cause to obtain such records.

Here, Judge Bell found probable cause, but we disagree. The detective’s affidavit was based entirely on information provided by a confidential informant (CI). The detective corroborated only the fact that the phone number the CI provided was actually defendant’s phone number. The affidavit contains no assertion that the informant was reliable or had a history of providing accurate information.

The affidavit was based on the uncorroborated information of an anonymous source whose reliability was not established. Therefore, the detective’s application was not supported by probable cause, and the trial court issued its § 2703(d) order permitting law enforcement officers to obtain defendant’s historical CSLI data in violation of defendant’s constitutional rights.

In State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988), our Supreme Court declined to adopt a good faith exception to the exclusionary rule as it exists under the North Carolina Constitution, noting that North Carolina adopted an exclusionary rule by statute rather than by judicial creation. The court left it to the General Assembly

To view the full list of opinion digests, please visit www.nclawyersweekly.com. See Page 17

Continued From Page 16 to decide whether to adopt a good faith exception. Although the General Assembly has done so, our Supreme Court has not yet overruled Carter, and we remain bound by that decision to hold that there is no good faith exception to the exclusionary rule under our state constitution.

New trial.

State v. Rogers (Lawyers Weekly No. 012513-22, 26 pp.) (Valerie Zachary, J.) Appealed from New Hanover County Superior Court (Frank Jones, J.) Caden William Hayes for the state; Sterling Rozear for defendant. 2022-NCCOA-828

Court of Appeals vacates judge’s judgment

Civil Practice

Judges – Subject Matter Jurisdiction –Contrary Rulings – Landlord/Tenant

Between Judge Bradley Letts’ denial of the plaintiff-lessor’s motion for summary judgment and Judge Daniel Kuehnert’s grant of judgment for the lessor as a matter of law, the only significant change was the lessor’s assertion of a claim for compensatory damages. Judge Kuehnert lacked the authority to overrule Judge Letts’ order.

We vacate Judge Kuehnert’s judgment in favor of the lessor.

Background

A lease allowed lessee Ruth Owens, “or the survivor of the Lessee,” to live on a campground in exchange for maintaining the campground. The lease allowed Ruth’s children to live with her, and defendant William Owens did so. After Ruth became unable to maintain the campground, William took over her duties, at least for a time.

The lessor filed this action alleging defendants were in breach of the lease and seeking a declaratory judgment as to the rights of the parties under the lease. Ruth passed away.

The lessor moved for summary judgment. Judge Letts denied the motion.

The lessor amended its complaint to voluntarily dismiss its claims against Ruth and to assert a claim for compensatory damages against William. Thereafter, Judge Kuehnert granted summary judgment for the lessor.

Discussion

One superior court judge may not correct another’s errors, and ordinarily one judge may not modify, overrule, or change the judgment of another superior court judge previously made in the same action. A trial court judge has the authority to modify an interlocutory order only when there is a showing of changed conditions which warrant such action.

Judge Letts’ order definitively concluded that neither party was entitled to judgment as a matter of law regarding William’s rights in the lease. Judge Kuehnert considered this issue a second time and incongruously concluded, as a matter of law, that William did not have any rights in the lease.

The record reveals no change in circumstances that permitted Judge Kuehnert to reverse Judge Letts’ decision. Neither the lessor’s dismissal of its claims against Ruth nor its addition of a compensatory damages claim had any bearing on the legal issue of whether William had any rights in the lease. Because Judge Letts had concluded that the case could not be resolved as a matter of law, Judge Kuehnert did not have the authority to enter a contrary order.

William was not required to preserve for appeal his argument that Judge Kuehnert had no authority to overturn Judge Letts’ order. Judge Kuehnert’s authority to make a declaratory judgment is a question of subject matter jurisdiction, which may be raised at any time.

Vacated.

Adventure Trail of Cherokee, Inc. v. Owens (Lawyers Weekly No. 012-523-22, 10 pp.) (Jefferson Griffin, J.) Appealed from Jackson County Superior Court (Daniel Kuehnert, J.) Shira Hedgepeth for plaintiff; Mark Hayes for defendant. 2022-NCCOA850

Defendant’s motion granted in part Partnerships

Derivative Action – Not Permitted –Duplicative Claim

Plaintiff, a partner in the general partnership Hot Dog Shoppe, alleges that his partner, defendant Vojnovic, used the defendant limited liability company to usurp a partnership opportunity to buy three Ohio hot dog shops. Since plaintiff does not allege that he and Vojnovic agreed that either partner could assert derivative claims on behalf of their partnership, North Carolina law does not permit plaintiff to bring a derivative claim on behalf of the partnership.

Defendants’ motion for judgment on the pleadings is granted in part.

Although North Carolina’s statutes governing corporations, limited liability companies and limited partnerships allow interested parties to bring derivative actions, the North Carolina Uniform Partnership Act does not.

Unlike shareholders and limited partners, general partners all have the ability to act on behalf of the partnership, and all have management rights. Moreover, unlike corporate shareholders, officers and directors or an LLC’s members and mangers, partners in a general partnership owe one another fiduciary duties. Furthermore, the NCUPA creates an adequate remedy – a claim for an accounting – through which one general partner may pursue claims directly against another general partner to obtain both equitable and monetary relief through a balancing of accounts.

Under the circumstances, a derivative action is unnecessary. Plaintiff’s derivative claims are dismissed.

Where plaintiff asserts a claim for breach of fiduciary duty against Vojnovic, plaintiff’s claim against Vojnovic for misappropriation of business opportunity is unnecessarily duplicative and is therefore dismissed.

Motion granted in part.

Cutter v. Vojnovic (Lawyers Weekly No. 020-007-23, 17 pp.) (Louis Bledsoe, C.J.) Alexander Heroy and Jennifer Houti for plaintiff; Thomas Hooper for defendants. 2023 NCBC 7

BRIAN F. DAVIS CO-FOUNDER, DAVIS LAW GROUP ASHEVILLE

With a reputation as one of the top truck accident attorneys in North Carolina, Brian Davis is known for his aggressive “leave no stone unturned” approach to handling serious personal injury and wrongful death cases. He is board-certified in truck accident law.

Davis practices with his wife, Elizabeth Rich Davis at their Asheville firm, Davis Law Group. The firm specializes in representing victims of truck accidents and is a leader in a variety of professional organizations including serving on the board of regents for the Academy of Truck Accident Attorneys and the American Association for Justice, where he twice received the Wiedemann & Wysocki Award for outstanding commitment to the legal profession and the civil justice system.

Davis earned his bachelor’s degree in political science from UNC-Chapel Hill and his law degree from Wake Forest University. In his practice, Davis draws from his experience growing up in a working class, rural area in North Carolina’s mountains. After law school, Davis chose to begin his career at a personal injury law firm in Raleigh because he wanted to help injured individuals who needed an advocate in their corner to fight for them.

Fred DeVore III believes attorneys are service professionals who help individuals through catastrophic injuries and life-changing loss.

“I like standing beside clients and helping them shoulder the unexpected and sudden tragedies they face,” he says. “Most times the clients are lost and confused about how to process such a loss, and I enjoy providing that service to them.”

A partner with DeVore, Acton and Stafford in Charlotte, DeVore is a civil litigator and has served as lead counsel on many cases and has handled more than 40 appellate matters in the North Carolina Court of Appeals, North Carolina Supreme Court and the United States Fourth Circuit.

DeVore has a bachelor’s and master’s degree from UNCChapel Hill. He earned his law degree from Wake Forest University School of Law. He is a frequent lecturer for various bar and judicial organizations, focusing on issues ranging from trial tactics to insurance bad faith.

He is president of the executive board of the Mecklenburg County Bar and serves on the Disciplinary Hearing Commission for the State Bar.