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Most Important Opinions 1Q 2018

 

Administrative

 

DWI – Breathalyzer Refusal – License Revocation – Evidence – Hearsay – Witness’ Reliability

Holding: Regardless of the reliability of the witness who told a state trooper that petitioner had driven drunk, the trooper could consider the witness’ statement in his determination that he had a reasonable belief that petitioner had driven while impaired.

We reverse the superior court’s reversal of the revocation of petitioner’s driver’s license.

Hopkins v. Thomas (Lawyers Weekly No. 012-018-18, 16 pp.) (Valerie Zachary, J.) Appealed from Pamlico County Superior Court (Benjamin Alford, J.) Kirby Smith III for petitioner; Kathryne Hathcock for respondent. N.C. App. Unpub.

 

Antitrust

 

Civil Practice – Class Action – Labor & Employment – No-Hire Agreement

Seaman v. Duke University (Lawyers Weekly No. 003-008-18, 25 pp.) (Catherine Eagles, J.) 1:15-cv-00462; M.D.N.C.

Holding: With regard to plaintiff’s claim that Duke University and the University of North Carolina at Chapel Hill suppressed medical school faculty wages by agreeing not to permit lateral moves of faculty between the two schools, a class action is the superior method of litigation. However, adding non-faculty claims would unnecessarily complicate the class action.

The court grants plaintiff’s motion to certify a class action of medical school faculty members. The court denies the certification motion as to non-faculty employees.

 

Arbitration

 

Standard of Review – No Waiver – Counterclaim Response – Discovery – New York Law

iPayment, Inc. v. Grainger (Lawyers Weekly No. 011-004-18, 19 pp.) (Lucy Inman, J.) Appealed from Union County Superior Court (Theodore Royster Jr., J.) N.C. App.

Holding: A review of our divergent case law leads to the conclusion that the issue of whether a party has waived the contractual right to arbitration is a mixed question of law and fact. Accordingly, we first review whether the trial court’s findings of fact are supported by competent evidence, and then examine de novo whether those findings, taken together, support the legal conclusion that plaintiff waived its right to compel arbitration.

Applying New York law, as required by the parties’ choice-of-law provision, we conclude that plaintiff did not waive its right to compel arbitration. We reverse the trial court’s ruling to the contrary.

 

Attorneys

 

Discipline – ‘Esq.’ – First Impression – Solicitation Emails – Suspension

North Carolina State Bar v. Ely (Lawyers Weekly No. 011-055-18, 31 pp.) (Mark Davis, J.) Appealed from the Disciplinary Hearing Commission. N.C. App.

Holding: Under the circumstances of this case, “Esq.” following the administratively suspended defendant’s signature was intended to convey that she was able to provide legal services as an attorney.

We affirm the Disciplinary Hearing Commission’s (DHC’s) five-year suspension of defendant’s license to practice law.

 

Civil Practice

 

Appeals – Notice – Domestic Relations – Parent & Child – New Custody Order

Brown v. Swarn (Lawyers Weekly No. 011-013-18, 10 pp.) (Chris Dillon, J.) Appealed from Transylvania County District Court (T. Mack Brittain, J.) N.C. App.

Holding: When, as here, there is no certificate of service in the record showing when the appellant was served with the trial court’s judgment, the burden is on the appellee to show that the appellant received actual notice of the judgment more than 30 days before filing notice of appeal in order to warrant dismissal of the appeal as untimely filed. Since the appellee has not made such a showing, we have jurisdiction over the appeal.

We deny the plaintiff-mother’s motion to dismiss the appeal. We affirm the custody order.

 

Civil Practice

 

Business Court Designation – Corporate – Material Dispute

Barclift v. Martin (Lawyers Weekly No. 020-008-18, 6 pp.) (James Gale, C.J.) 2018 NCBC 5

Holding: The complaint raises a material dispute involving the law governing corporations, so defendants had a unilateral right to designate the action as a mandatory complex business case pursuant to G.S. § 7A-45.4(a)(1). It is irrelevant that the case is not complex, that it does not present novel issues of corporate law, and that any superior court judge has jurisdiction to resolve the claims presented.

The court overrules plaintiff’s objection to defendants’ notice of designation and denies plaintiff’s motion to remand.

 

Civil Practice

 

Contempt – Form Order – Appeals – Domestic Relations – Child Support

County of Durham v. Hodges (Lawyers Weekly No. 011-002-18, 18 pp.) (Donna Stroud, J.) Appealed from Durham County District Court (Fred Battaglia, J.) N.C. App.

Holding: Even though a form order was only partially filled out, it was signed by the judge and filed. Therefore, it was a valid order, and defendant’s appeal from the form order deprived the trial court of jurisdiction to enter a subsequent, more detailed order.

We reverse the trial court’s June 14, 2016, order finding defendant in civil contempt of his child support obligations. We vacate the trial court’s more detailed June 17, 2016, order.

 

Civil Practice

 

Contempt – Refusal to Comply – Real Property – Trespass

Adams Creek Associates v. Davis (Lawyers Weekly No. 011-011-18, 28 pp.) (Rick Elmore, J.) (Donna Stroud, J., dissenting) Appealed from Carteret County Superior Court (Benjamin Alford, J.) N.C. App.

Holding: Regardless of whether defendants have the ability to comply with the trial court’s order – requiring them to remove structures from plaintiff’s land and to attest never to trespass on plaintiff’s land again – defendants insist that they will not comply. Consequently, G.S. § 5A-21(a) did not require the trial court to make findings regarding defendants’ ability to comply with the contempt order.

We affirm the trial court’s order denying defendants’ motions for release from conditional incarceration for civil contempt.

 

Civil Practice

 

No CAFA removal for “additional counter-defendants”

Jackson v. Home Depot USA Inc. (Lawyers Weekly No. 001-015-18, 16 pp.) (Duncan, J.) No. 17-1627, Jan. 22, 2018; WDNC at Charlotte (Mullen, J.) 4th Cir.

Holding: Where an original defendant makes counterclaims naming additional parties as counter-defendants, those additional parties are not entitled to remove the claims against them to federal court even under the permissive standards of the Class Action Fairness Act.

 

Civil Practice

 

Pleadings – Incorporation by Reference – Statute of Limitations – Derivative & Individual Claims

Spoor v. Barth (Lawyers Weekly No. 011-04-018, 16 pp.)  (Rick Elmore, J.) Appealed from Wake County Superior Court (Robert Sumner, J.) N.C. App.

Holding: A complaint’s derivative claim incorporated by reference the complaint’s previous allegations, which stated individual claims; however, the incorporation by reference incorporated only the previously alleged facts, not the previously alleged claims.

We affirm the trial court’s dismissal of plaintiff’s derivative claims against defendant John Barth Sr. (“Sr.”) and his derivative breach of contract claim against defendant John Barth Jr. (“Jr.”). We reverse the trial court’s dismissal of plaintiff’s derivative breach of fiduciary duty claim against Jr.

 

Civil Practice

 

Removal contingent on alter-ego issue

Bartels v. Saber Healthcare Grp. LLC (Lawyers Weekly No. 001-013-18, 31 pp.) (Traxler, J.) No. 16-2247, Jan. 23, 2018; EDNC at Raleigh (Boyle, J.) 4th Cir.

Holding: Although a forum-selection clause effectively precluded removal by naming a North Carolina county without a federal courthouse, the court of appeals returned the case to the district court to determine whether the clause bound all defendants.

 

Civil Practice

 

Statute of Limitations – Tolling – Incompetency – No Adjudication – Tort/Negligence – Medical Malpractice

Ragsdale v. Whitley (Lawyers Weekly No. 011-006-18, 14 pp.) (John Arrowood, J.) Appealed from Cumberland County Superior Court (Beecher Gray, J.) N.C. App.

Holding: If a person meets the statutory definition of an “incompetent adult” under G.S. § 35A-1101(7), the applicable statute of limitations is tolled until the disability is removed. There is no requirement of an adjudication of incompetency in order to toll the statute of limitations. If that had been the General Assembly’s intent, it could have easily said so.

We reverse summary judgment for defendants.

 

Civil Practice

 

Statute of Limitations – Tort/Negligence – Auto Accident – Insurance – UM Carrier – Service of Process

Powell v. Kent (Lawyers Weekly No. 011-017-18, 9 pp.) (John Arrowood, J.) Appealed from Haywood County Superior Court (Sharon Tracey Barrett, J.) N.C. App.

Holding: Although plaintiff instituted an action within the three-year limitations period applicable to automobile negligence actions and properly served the individual defendants, the uninsured motorist carrier was not served with the summons and complaint until after the expiration of the three-year statute of limitations. Accordingly, we are compelled to hold that the trial court did not err by granting summary judgment in favor of the UM carrier.

Affirmed.

 

Civil Rights

 

Invasive search of “sexting” suspect was unreasonable

Even acting pursuant to a warrant, a police detective was not entitled to qualified immunity for compelling a teenager to perform a sexual act.

Sims v. Labowitz (Lawyers Weekly No. 001-050-18, 29 pp.) (Keenan, J.) No. 16-2174; published opinion after rehearing; Mar. 14, 2018; EDVA at Alexandria (Hilton, J.) Victor M. Glasberg for Appellant; Julia Bougie Judkins for Appellee. 4th Cir.

 

Constitutional

 

Continuing “indifference” extends limitations period

When inmates sue under § 1983 for prison officials’ disregard of a serious and ongoing medical need, the statute of limitations does not begin to run until the date, if any, on which adequate treatment is provided.

DePaola v. Clarke (Lawyers Weekly No. 001-043-18, 15 pp.) (Keenan, J.) No. 16-7360; Mar. 9, 2018; WDVA at Roanoke (Jones, J.) Charles Christopher Moore for Appellant; Trevor Stephen Cox, John Thomas Jessee, and Carlene Booth Johnson for Appellees. 4th Cir.

 

Constitutional

 

Handcuffing student was excessive force

E.W. v. Dolgos (Lawyers Weekly No. 001-026-18, 50 pp.) (Gregory, J.) No. 16-1608, Feb. 12, 2018; DMD at Baltimore (Motz, J.) 4th Cir.

Holding: A school safety officer used excessive force in handcuffing an elementary student who posed no objective threat, but the officer was still entitled to qualified immunity for the constitutional violation.

 

Constitutional

 

Separation of Powers – Elections – Bipartisan Board

Cooper v. Berger (Lawyers Weekly No. 010-006-18, 74 pp.) (Sam Ervin IV, J.) (Mark Martin, C.J., joined by Barbara Jackson, J., dissenting) (Paul Newby, J., dissenting separately) Appealed from a three-judge panel of the Superior Court in Wake County. N.C. S. Ct.

Holding: By requiring that half of the members of the Bipartisan State Board of Elections and Ethics Enforcement be from the opposition party, and by significantly constraining the governor’s ability to remove members of the Bipartisan State Board, the General Assembly has violated the separation-of-powers provisions of the North Carolina Constitution by impinging upon the governor’s ability to faithfully execute the laws.

We reverse the three-judge panel’s ruling that the governor’s complaint presented a nonjusticiable issue. Remanded for further proceedings, including the entry of a final judgment on the merits.

 

Constitutional

 

Tort/Negligence – Corum Claim – STCA – Adequate Remedy – DHHS & DSS

Taylor v. Wake County (Lawyers Weekly No. 011-077-18, 24 pp.) (Lucy Inman, J.) Appealed from Wake County Superior Court (Paul Ridgeway, J.) N.C. App.

Holding: Plaintiff’s Tort Claims Act claim against the Department of Health and Human Services in the Industrial Commission is less intrusive than a direct constitutional claim against Wake County Department of Social Services and, if successful, still provides a remedy capable of righting the alleged constitutional wrong that led to the death of plaintiff’s parents and the attempted murder of plaintiff in front of her children.

We affirm the trial court’s order granting defendant’s motions to dismiss and for summary judgment.

 

Constitutional

 

Travel ban’s third iteration likely unconstitutional

Int’l Refugee Assistance Project v. Trump (Lawyers Weekly No. 001-029-18, 285 pp.) (Gregory, J.) No. 17-2231; Feb. 15, 2018; DMD at Greenbelt (Chuang, J.) 4th Cir.

Holding: The appellate court affirmed a nationwide preliminary injunction on the Trump administration’s travel ban, which the district court held was a likely violation of the First Amendment’s guarantee of religious freedoms.

 

Consumer Protection

 

Free-offer fax was unsolicited fax under TCPA

Holding: The district court lacked jurisdiction to consider the validity of an FCC rule regarding unsolicited faxes, and it erred in concluding that the rule applied only to faxes with a facially commercial aim.

Carlton & Harris Chiropractic Inc. v. PDR Network LLC (Lawyers Weekly No. 001-033-18, 30 pp.) (Diaz, J.) No. 16-2185; Feb. 23, 2018; SDWV at Huntington (Chambers, J.) Glenn Lorne Hara for Appellant. Jeffrey N. Rosenthal from Appellees. 4th Cir.

 

Consumer Protection

 

No vicarious liability for sellers’ TCPA misconduct

Even though discovery was still open at the trial level, class-action plaintiffs could not present evidence creating a triable dispute about whether security-system manufacturers were vicariously liable for retailers’ TCPA violations.

Hodgin v. UTC Fire & Sec. Ams. Corp. (Lawyers Weekly No. 001-051-18, 21 pp.) (Duncan, J.) No. 17-1222; Mar. 14, 2018; NDWV at Clarksburg (Bailey, J.) Ryan McCune Donovan for Appellants; Rebecca J. Wahlquist and Lauri Anne Mazzuchetti for Appellees. 4th Cir.

 

Contract

 

Arbitration waived by merits-based litigation

Degidio v. Crazy Horse Saloon & Rest. Inc. (Lawyers Weekly No. 001-019-18, 16 pp.) (Wilkinson, J.) No. 17-1145, Jan. 18, 2018; DSC at Florence (Hendricks, J.) 4th Cir.

Holding: An exotic dance club could not enforce arbitration agreements it obtained from its entertainers when it used those agreements as an “insurance policy” for merits-based litigation, the court of appeals said.

 

Criminal Practice

 

Appeals – Untimely – First Impression – Sua Sponte Dismissal

United States v. Oliver (Lawyers Weekly No. 001-002-18, 17 pp.) (Roger Gregory, C.J.) 15-4376; Dec. 20, 2017; USDC at Orangeburg, S.C. (Margaret Seymour, S.J.) 4th Cir.

Holding: It is the government’s responsibility to raise the issue of the untimeliness of a defendant’s appeal; however, the defendant in this case had already pursued collateral review before he filed his direct appeal more than three years late. This is one of the rare situations in which the court should consider invoking Fed. R. Crim. P. 4(b)(1)(A) sua sponte. We do so and dismiss defendant’s appeal.

 

Criminal Practice

 

Attorneys’ Fees – Defendant’s Right to Be Heard – Evidence – Interrogation Recording – Plain Error Review – Ineffective Assistance Claim

State v. Friend (Lawyers Weekly No. 011-021-18, 13 pp.) (Richard Dietz, J.) Appealed from Catawba County Superior Court (Robert Sumner, J.) N.C. App.

Holding: When the trial court is contemplating a money judgment against a criminal defendant for attorneys’ fees incurred by appointed counsel under G.S. § 7A-455, the interests of the defendant and trial counsel are not necessarily aligned. To avoid the risk that defendants are deprived of the opportunity to be heard in this context, we hold that, before entering money judgments against indigent defendants for fees imposed by their court-appointed counsel under § 7A-455, trial courts should ask defendants – personally, not through counsel – whether they wish to be heard on the issue. Absent a colloquy directly with the defendant on this issue, the requirements of notice and opportunity to be heard will be satisfied only if there is other evidence in the record demonstrating that the defendant received notice, was aware of the opportunity to be heard on the issue, and chose not to be heard.

We vacate the civil judgment against defendant and remand for further proceedings. We find no plain error in defendant’s convictions of assault with a deadly weapon inflicting serious injury and first-degree burglary. We dismiss defendant’s ineffective assistance of counsel claim without prejudice.

 

Criminal Practice

 

Breaking or Entering – Belk Store – Business Hours – Banned from Store – First Impression

Holding: In a matter of first impression in our state, we hold that defendant’s general license or privilege to enter a Belk store was revoked in Charlotte on Nov. 14, 2015, when defendant was presented with and signed a Notice of Prohibited Entry banning defendant from entering “any Belk property” for a period of 50 years. As the incident in question occurred on Jan. 21, 2016, two months after the ban was implemented and “personally communicated” to defendant, and no evidence suggests the ban had been rescinded, we conclude it remained in effect, rendering defendant’s entry to the Belk store in Hickory unlawful. Accordingly, the state’s evidence was sufficient to support a felonious breaking and entering charge.

No error.

State v. Allen (Lawyers Weekly No. 011-089-18, 11 pp.) (Wanda Bryant, J.) (Hunter Murphy, J., concurring in the result only without separate opinion) Appealed from Catawba County Superior Court (Lisa Bell, J.) Tenisha S. Jacobs and Teresa Postell for the state; Michael Casterline for defendant. N.C. App.

 

Criminal Practice

 

Catch-all limitations period inapplicable to civil commitment

United States v. Searcy (Lawyers Weekly No. 001-017-18, 25 pp.) (Diaz, J.) No. 16-6833, Jan. 18, 2018; EDNC at Raleigh (Flanagan, J.) 4th Cir.

Holding: The court of appeals held that the federal four-year “catch-all” statute of limitations for civil actions does not apply to civil-commitment proceedings under the Adam Walsh Act.

 

Criminal Practice

 

Computer use satisfies interstate commerce nexus

United States v. Miltier (Lawyers Weekly No. 001-027-18, 24 pp.) (Floyd, J.) No. 16-4729, Feb. 7, 2018; EDVA at Norfolk (Doumar, J.) 4th Cir.

Holding: The court of appeals upholds convictions arising from child pornography files that were not proven to be shared interstate, but were proven to be received on a computer that had been moved between states and between countries.

 

Criminal Practice

 

Constitutional – Ineffective Assistance – Plain Error Standard – Sentencing

United States v. Carthorne (Lawyers Weekly No. 001-003-18, 20 pp.) (Barbara Milano Keenan, J.) 16-6515; Dec. 21, 2017; USDC at Greensboro, N.C. (William Osteen Jr., J.) 4th Cir.

Holding: On direct appeal, this court found no plain error in defendant’s sentencing as a career offender; however, trial counsel’s failure to do research or to object led to a much longer sentence than defendant would otherwise have received. The standards of review for plain error and for ineffective assistance of counsel are different. While there was no plain error in this case, there was ineffective assistance of counsel.

We vacate defendant’s sentence and remand for resentencing.

 

Criminal Practice

 

Constructive Possession – Marijuana Plants – Incriminating Circumstances

Holding: Although defendants allowed a neighbor to have access to their real property, the trial court correctly denied defendants’ motion to dismiss the drug charges against them because the state presented sufficient evidence that defendants had constructive possession of the marijuana plants found growing on their property.

We reverse the Court of Appeals’ reversal of the trial court’s denial of defendants’ motion to dismiss.

State v. Chekanow (Lawyers Weekly No. 010-013-18, 29 pp.) (Cheri Beasley, J.) (Paul Newby, J., joined by Mark Martin, C.J. & Barbara Jackson, J., concurring in the result only) Appealed from Alleghany County Superior Court (R. Stuart Albright, J.) On discretionary review from the Court of Appeals. Adrian Dellinger for the state; J. Clark Fischer for defendant. N.C. S. Ct.

 

Criminal Practice

 

Dark web search warrant issued in good faith

United States v. McLamb (Lawyers Weekly No. 001-022-18, 10 pp.) (Thacker, J.) No. 17-4299, Jan. 25, 2018; EDVA (Smith, J.) 4th Cir.

Holding: A warrant executed in good faith, even if unconstitutional, did not render resulting evidence of child-pornography crimes inadmissible.

 

Criminal Practice

 

Despite conviction vacatur, civil commitment stands

United States v. Welsh (Lawyers Weekly No. 001-012-18, 22 pp.) (Diaz, J.) No. 17-6355; Jan. 12, 2018; USDC at Raleigh, N.C. (Dever, J.) 4th Cir.

Holding: Under the Adam Walsh Child Protection & Safety Act, appellant Welsh’s civil commitment – which was based on his confinement for a prior offense – was not voided by vacatur of his sentence for that prior offense, the court of appeals held.

 

Criminal Practice

 

DWI – Defense of Necessity – Jury Instruction Request – Duress

Holding: According to defendant’s evidence, he and his wife took a golf cart along a dirt path to a bar, where they drank quite a bit before defendant got into an altercation with a man who then pulled a gun. The way to the dirt path was blocked, so – in order to get away from the armed man he had just hit in the face – defendant drove the golf cart on a highway for two-tenths of a mile before turning onto another dirt path. The trial court should have granted defendant’s request for a jury instruction on the defense of necessity.

Defendant is entitled to a new trial.

State v. Miller (Lawyers Weekly No. 011-092-18, 34 pp.) (Linda McGee, C.J.) (Chris Dillon, J., concurring) Appealed from Wake County Superior Court (Michael Morgan, J.) David Lennon for the state; Damon Chetson for defendant. N.C. App.

 

Criminal Practice

 

Insufficient Indictment – Felony Litter – Heating Oil – Statutory Subsections

State v. Rankin (Lawyers Weekly No. 011-008-18, 23 pp.) (Mark Davis, J.) (Philip Berger Jr., J., dissenting) Appealed from Guilford County Superior Court (Michael Duncan, J.) N.C. App.

Holding: Although an indictment is not required to reference exceptions to the offense, and although G.S. § 14-399(a)(1) and (2) are prefaced by the word “except,” those subsections set out elements of the offense rather than defenses to it. Therefore, the indictment against defendant should have alleged, but did not allege, that defendant’s littering did not occur on property designated for the disposal of garbage.

We vacate defendant’s conviction for felony littering.

 

Criminal Practice

 

Officer’s drug suspicions not reasonable

Holding: An officer lacked reasonable suspicion to prolong an early-morning traffic stop, despite the apparent nervousness of the driver and passenger, the driver’s claim that he’d just purchased the vehicle despite being unemployed, and evidence of a long-distance trip inconsistent with the driver’s account of where he’d been that night.

United States v. Bowman (Lawyers Weekly No. 001-041-18, 30 pp.) (Traxler, J.) No. 16-4848; Mar. 1, 2018; WDNC at Asheville (Reidinger, J.) Ann Loraine Hester for Appellant; Anthony Joseph Enright for Appellee. 4th Cir.

 

Criminal Practice

 

Search & Seizure – Car Outside Searched Apartment – Driver’s License – Guilty Plea & Judgment

State v. Thompson (Lawyers Weekly No. 011-009-18, 29 pp.) (Valerie Zachary, J.) (Philip Berger Jr., J., dissenting) Appealed from Mecklenburg County Superior Court (William Bell, J.) N.C. App.

Holding: In ruling on defendant’s motion to suppress the fruits of a search of his car, the trial court should have determined whether or not defendant was seized during the search of his girlfriend’s apartment. Officers approached defendant, who was in his car outside the apartment building, and asked for his driver’s license. It is unclear when defendant’s license was returned to him, so it is unclear whether he was free to leave.

We vacate the judgment against defendant and remand for additional findings. We also remand for correction of the discrepancy between the transcript of plea and the judgment.

 

Criminal Practice

 

Search & Seizure – First Impression – Thumb Drive – Private Search – Scope Exceeded

State v. Terrell (Lawyers Weekly No. 011-052-18, 53 pp.) (Rick Elmore, J.) (Donna Stroud, J., concurring in part & dissenting in part) Appealed from Onslow County Superior Court (Beecher Gray, J.) N.C. App.

Holding: On defendant’s thumb drive, his girlfriend found a photo of her nine-year-old granddaughter sleeping without a shirt on, so the girlfriend turned the thumb drive over to the police. Since the police detective who searched the thumb drive was not virtually certain that the thumb drive contained only contraband or that his inspection of its data would not reveal anything more than the girlfriend had already told him, the detective’s discovery of other nude photos of minor girls on the thumb drive is not protected by the private-search doctrine.

We reverse the trial court’s conclusion that the detective’s warrantless search was lawful under the private-search doctrine. However, because the record is insufficient for us to determine whether the trial court would have held that the subsequent search warrant was supported by probable cause without the tainted evidence, we remand this matter to the trial court to determine the validity of the search warrant.

 

Criminal Practice

 

Search & Seizure – Traffic Stop – Database Searches

Holding: Where the stop of the car in which defendant was riding was lawfully extended due to a reasonable suspicion of drug activity, the extended detention of the defendant-passenger was also lawful.

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

State v. Campola (Lawyers Weekly No. 011-090-18, 24 pp.) (Lucy Inman, J.) Appealed from Mecklenburg County Superior Court (Robert Ervin, J.) Joseph Newsome for the state; Meghan Adelle Jones for defendant. N.C. App.

 

Criminal Practice

 

Search & Seizure – Traffic Stop – Unlawfully Extended

State v. Reed (Lawyers Weekly No. 011-010-18, 17 pp.) (Robert Hunter Jr., J.) (Chris Dillon, J., dissenting) Appealed from Johnston County Superior Court (Thomas Lock, J.) On remand from the N.C. Supreme Court. N.C. App.

Holding: On remand from the Supreme Court, the Court of Appeals again reverses the trial court’s denial of defendant’s motion to suppress the fruits of the search of his car after an extended traffic stop.

Reversed and remanded.

 

Criminal Practice

 

Self-Defense – Warning Shot – Intent to Kill

Holding: We affirm the Court of Appeals’ decision (If a defendant fires a gun as a means to repel a deadly attack, the defendant is not entitled to a self-defense instruction if he testifies that he did not intend to shoot the attacker.).

State v. Cook (Lawyers Weekly No. 010-023-18, 1 p.) (Per Curiam) Appealed from Mecklenburg County Superior Court (Hugh Lewis, J.) On appeal from the Court of Appeals. Joseph Hyde for the state; Ann Petersen for defendant. N.C. S. Ct.

 

Criminal Practice

 

Song lyric as Facebook status was party admission

In a firearms-possession case, the defendant’s Facebook post adopted the admission: “It’s Always Tucked, Kuz I’ll B Damn If My Life Get Took!!” The phrase closely mirrored a song lyric, but contained no attribution and was probative of the conduct charged.

United States v. Recio (Lawyers Weekly No. 001-044-18, 15 pp.) (Motz, J.) No. 17-4005; Mar. 7, 2018; DMD at Greenbelt (Hazel, J.) Lesley Whitcomb Fierst for Appellant; Francesca Anne Liquori for Appellee. 4th Cir.

 

Domestic Relations

 

Adoption – First Impression – Revocation of Consent – Timely – Receipt of Consent Document

In re Ivey (Lawyers Weekly No. 011-034-18, 16 pp.) (Lucy Inman, J.) Appealed from Haywood County District Court (Thomas Foster, J.) N.C. App.

Holding: Even though the biological mother did not indicate that she wanted to revoke her consent to petitioners’ adoption of her child until eight days after she signed a consent to adoption form, since the biological mother did not receive an original or copy of the consent form until nearly a month after she signed it, her revocation of consent was timely.

We affirm the trial court’s conclusion that the biological mother’s revocation of her consent to adoption was timely.

 

Domestic Relations

 

Alimony & Child Support – Income Sources – Equitable Distribution – Classification & Valuation

Kabasan v. Kabasan (Lawyers Weekly No. 011-015-18, 49 pp.) (Valerie Zachary, J.) Appealed from Buncombe County District Court (Andrea Dray, J.) N.C. App.

Holding: In listing the income sources to be considered in an alimony award, G.S. § 50-16.3A(b)(4) does not make clear whether the “social security” mentioned in the statute can refer to social security benefits received by a parent on behalf of a child. Nevertheless, since defendant included the parties’ child’s social security benefits in his financial affidavit, he has failed to show that he was prejudiced by the trial court’s inclusion of social security benefits received by defendant on behalf of the minor child in its alimony order.

The trial court’s alimony order is reversed and remanded. The trial court’s equitable distribution and child support orders are affirmed.

 

Domestic Relations

 

Alimony & Spousal Support – Civil Practice – Pleadings

There is no case law directly addressing whether a court may view a pleading as a whole, and there is no statute or case law requiring that multiple claims be pled separately. Reading defendant’s counterclaims as a whole, she has adequately set forth claims for alimony and post-separation support.

We reverse the trial court’s grant of plaintiff’s motion to dismiss defendant’s counterclaims.

Perez v. Perez (Lawyers Weekly No. 012-040-18, 8 pp.) (Rick Elmore, J.) Appealed from Rowan County District Court (Marshall Bickett, J.) David Perez for plaintiff; William Jordan and Elaine Hedrick Ashley for defendant. N.C. App. Unpub.

 

Domestic Relations

 

Alimony – Future Expenses – Child Support – Changed Circumstances – Health Insurance – Equitable Distribution – Storage Fees – Separate Expense

Although the plaintiff-wife moved in with her mother after the parties’ separation, the trial court could find that “she cannot be expected to live with her mother permanently,” and its alimony award could take into account plaintiff’s reasonable housing expenses.

We affirm the trial court’s alimony and child support awards. We reverse the equitable distribution order and remand for further findings with regard to an unequal division.

McGuire v. McGuire (Lawyers Weekly No. 012-036-18, 22 pp.) (Wanda Bryant, J.) Appealed from Union County District Court (N. Hunt Gwyn, J.) John Burns for plaintiff; Rebecca Watts for defendant. N.C. App. Unpub.

 

Domestic Relations

 

Attorney’s Fees – Parent & Child – Custody – Contempt

Holding: Even though the trial court held the defendant-mother in contempt for having braces put on the teeth of the parties’ child without consulting the plaintiff-father, our case law didn’t prevent the court from awarding the mother attorney’s fees arising from other parts of the custody case.

Nevertheless, we vacate the attorney’s fee award so that the trial court can exclude from the award any fees that arose from the contempt issue and from the issue of child support.

Cook v. Cook (Lawyers Weekly No. 012-015-18, 11 pp.) (Mark Davis, J.) Appealed from Wake County District Court (Michael Denning, J.) Jonathan Melton & Carrie Tortora for plaintiff; Tobias Hampson & Jessica Heffner for defendant. N.C. App. Unpub.

 

Domestic Relations

 

Equitable Distribution – Classification – Military Disability Benefits – Distributive Award – Civil Practice – Contempt

Lesh v. Lesh (Lawyers Weekly No. 011-016-18, 25 pp.) (Mark Davis, J.) Appealed from Currituck County District Court (Meader Harriss III, J.) N.C. App.

Holding: After properly classifying the plaintiff-husband’s military disability benefits as his separate property, the trial court could nonetheless consider those same benefits as a source from which the husband could pay a distributive award to the defendant-wife.

We affirm the trial court’s denial of plaintiff’s motion under N.C. R. Civ. P. 60(b), as well as it order holding him in contempt for failure to comply with the equitable distribution order.

 

Domestic Relations

 

Equitable Distribution – Distributive Award – Separate Property – Plaintiff’s Corporation & Son

Crowell v. Crowell (Lawyers Weekly No. 011-001-18, 34 pp.) (Wanda Bryant, J.) (Hunter Murphy, J., concurring in part & dissenting in part) Appealed from Mecklenburg County District Court (Christy Mann, J.) N.C. App.

Holding: In this equitable distribution action, the trial court could require plaintiff to sell her separate property in order to pay a distributive award, and the court was not required to join as parties (1) plaintiff’s wholly owned corporation, which may have owned one of the properties or (2) plaintiff’s son, to whom she had transferred another of the properties post-separation and for no consideration.

We affirm the equitable distribution order, except to the extent it purports to order plaintiff’s son – as an alternative to selling the gifted property – to pay part of the distributive award.

 

Domestic Relations

 

Equitable Distribution – Divisible Property – Statutory Amendment – Interest Payments

Holding: Plaintiff’s post-separation interest-only payments on the parties’ mortgage were payments on “financing charges and interest related to marital debt”; as such, a strict reading of G.S. § 50-20(b)(4)(d)’s plain language reveals them to be divisible payments.

We affirm the equitable distribution order that classified plaintiff’s post-separation mortgage payments as divisible property.

Henderson v. Henderson (Lawyers Weekly No. 012-017-18, 9 pp.) (Ann Marie Calabria, J.) Appealed from Mecklenburg County District Court (Jena Culler, J.) Adam Hocutt and Rebecca Wofford for plaintiff; Rebecca Watts for defendant. N.C. App. Unpub.

 

Domestic Relations

 

Equitable Distribution – Subject Matter Jurisdiction – Pre-Separation Complaint

Holding: Even though plaintiff first raised her equitable distribution claim in her complaint for divorce from bed and board – filed before the parties separated – since she raised it again in a verified motion after the parties were separated, the trial court had subject matter jurisdiction over plaintiff’s equitable distribution claim.

We affirm the trial court’s equitable distribution order but remand for correction of a clerical error.

Amir v. Amir (Lawyers Weekly No. 012-030-18, 12 pp.) (Chris Dillon, J.) Appealed from Wake County District Court (Lori Christian, J.) Michael Harrell for plaintiff; Jonathan McGirt for defendant. N.C. App. Unpub.

 

Domestic Relations

 

Equitable Distribution – Valuation – Owner’s Opinion – Substantiated – Distributional Award

Dalton v. Dalton (Lawyers Weekly No. 012-007-18, 14 pp.) (Robert Hunter Jr., J.) Appealed from Onslow County District Court (Sarah Seaton, J.) N.C. App. Unpub.

Holding: While an owner’s unsubstantiated opinion as to the value of his property is insufficient, plaintiff here based his opinion as to the value of the parties’ properties on previous appraisals and/or comparable sales; therefore, plaintiff’s opinion was substantiated, and the trial court erred when it concluded that it could only value the properties based on current appraisals.

The trial court’s equitable distribution order is vacated and remanded.

 

Domestic Relations

 

Grandparent Visitation – Best Interest of the Child – Insufficient Findings

Holding: Before the trial court could grant visitation rights to the plaintiff-grandmother, G.S. § 50-13.2A required the court to make findings that such visitation was in the best interest of the grandchild. The trial court’s findings of a former close relationship and a “mean-spirited” refusal to allow visitation were insufficient.

We vacate the visitation order and remand for further findings.

McCall v. Million (Lawyers Weekly No. 012-035-18, 35 pp.) (Linda McGee, C.J.) Appealed from Watauga County District Court (F. Warren Hughes, J.) Nancy Rivenbark and Andrew Brooks for plaintiff; Nathan Miller for defendants. N.C. App. Unpub.

 

Domestic Relations

 

Parent & Child – Custody & Visitation – Insufficient Findings – Attorney’s Fees

Sappington v. Sappington (Lawyers Weekly No. 012-012-18, 30 pp.) (Linda McGee, C.J.) Appealed from Avery County District Court (F. Warren Hughes, J.) N.C. App. Unpub.

Holding: Once the trial court found a substantial change in circumstances in the defendant-father’s favor, the court should have made findings about the plaintiff-mother’s fitness to retain sole legal and primary physical custody of the child before leaving that arrangement in place.

The court vacates in part and remands the trial court’s order regarding custody, visitation, and attorney’s fees.

 

Domestic Relations

 

Parent & Child – Termination of Parental Rights – Scheduling Conflict – Criminal Proceeding

Holding: When the district court in Haywood County scheduled the adjudication hearing on DSS’s motion to terminate respondent’s parental rights for Jan. 19, 2017, the court knew respondent already had a criminal trespassing trial calendared for Jan. 18, 2017, in Buncombe County. Since district attorneys, and not defendants or their counsel, set dates for criminal trials, the district court in Haywood County abused its discretion when – after respondent missed the TPR hearing – it refused to reopen the record to allow respondent to present evidence.

We reverse the trial court’s order denying respondent’s N.C. R. Civ. P. 59 motion, and we remand for a new hearing to allow respondent to be present and for additional evidence to be presented and taken.

In re S.G.V.S. (Lawyers Weekly No. 011-061-18, 12 pp.) (John Tyson, J.) Appealed from Haywood County District Court (Kristina Earwood, J.) Jordan Israel for petitioner; Edward Eldred for respondent; Ashley Edwards & Hunter Edwards for the guardian ad litem. N.C. App.

 

Domestic Relations

 

Parent & Child – Termination of Parental Rights – Willful Abandonment – Incarceration

In re D.E.M. (Lawyers Weekly No. 011-031-18, 8 pp.) (Hunter Murphy, J.) Appealed from Rutherford County District Court (Laura Powell, J.) N.C. App.

Holding: The trial court’s findings to not demonstrate willful abandonment: (1) The trial court’s findings do not specifically address respondent’s behavior within the relevant six-month period immediately preceding the filing of the petition as required to adjudicate willful abandonment. (2) The findings are inadequate to support the court’s ultimate finding that respondent’s abandonment of his child, “Danny,” was willful, especially since respondent contends that the mother refused to provide him with contact information for herself or Danny. (3) Given that respondent was incarcerated during the relevant six-month period, and assuming the trial court rejected respondent’s testimony that he wrote Danny letters from prison, the trial court’s findings do not address what other efforts respondent could have been expected to make to contact the mother and child.

We vacate the trial court’s termination of respondent’s parental rights. Remanded.

 

Domestic Relations

 

Trusts & Estates – Contract – Statute of Frauds – Unjust Enrichment – Post-Marriage Agreement

Holding: Where plaintiff and her late husband entered into a post-marriage agreement pursuant to which they agreed to keep their property – including the husband’s Ashe County property – separate, plaintiff’s claim for the $397,872 that she contributed to building the couple’s retirement home on the Ashe County property is barred by the Statute of Frauds.

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

Parsons v. Parsons (Lawyers Weekly No. 012-023-18, 11 pp.) (Ann Marie Calabria, J.) (Hunter Murphy, J., concurring in the result without separate opinion) Appealed from Ashe County Superior Court (John Craig III, J.) John Logsdon for plaintiff; Jay Vannoy and John Vannoy Jr. for defendants. N.C. App. Unpub.

 

Elections

 

Congressional Districts – Partisan Gerrymander – Constitutional – First & Fourteenth Amendments

Common Cause v. Rucho (Lawyers Weekly No. 003-002-18, 205 pp.) (James Wynn Jr., Circuit Judge) (William Osteen Jr., District Judge, concurring in part & dissenting in part) 1:16-cv-01026; M.D.N.C. Stayed by the U.S. Supreme Court.

Holding: Plaintiffs’ evidence shows that the General Assembly drew North Carolina’s 2016 congressional redistricting plan with the discriminatory partisan objective of subordinating the interests of non-Republican voters and entrenching Republican control of North Carolina’s congressional delegation. Accordingly, the 2016 plan constitutes a partisan gerrymander in violation of the Equal Protection Clause of the Fourteenth Amendment.

The legislative defendants are enjoined from conducting elections under the 2016 plan and must redraw the map of congressional districts by January 29, 2018.

 

Elections

 

EAJA – Innocent Defendant – Unnamed State Defendants – Unconstitutional Municipal Districts

City of Greensboro v. Guilford County Board of Elections (Lawyers Weekly No. 003-005-18, 14 pp.) (Catherine Eagles, J.) 1:15-cv-00559; M.D.N.C.

Holding: Where the county elections board did not pass the unconstitutional law, mounted no defense, and acted to simplify the litigation, thereby lowering plaintiffs’ costs, and where plaintiffs chose not to join as defendants the state actors who were responsible for the unconstitutional law, the court declines to award attorney’s fees to plaintiffs, despite their success in having the law declared a violation of the Equal Protection Clause.

Plaintiffs’ motion is denied.

 

Employment

 

“Whistleblower’s” Disclosures Not Protected; Termination Warranted

Appellant William C. O’Hara, a federal contractor’s former employee, did not make protected disclosures of fraud to the contracting agency and, based on his work performance, would have been terminated from employment notwithstanding such disclosures.

O’Hara v. NIKA Techs. Inc., Case No. 16-1805, Dec. 22, 2017, 4th Cir. (Duncan). Jonathan Louis Gould for Appellant; Clifford Bernard Geiger for Appellee. Lawyers Weekly No. 001-009-18, 16 pp.

 

Insurance

 

CGL – Duty to Defend – Breach of Contract – Underlying Settlement

American Reliable Insurance Co. v. Five Brothers Mortgage Co. & Securing, Inc. (Lawyers Weekly No. 004-006-18, 9 pp.) (Graham Mullen, J.) 3:16-cv-00159; W.D.N.C.

Holding: The plaintiff-insurer need not defend defendant in an underlying lawsuit in which defendant is alleged to have breached a contract. There is neither property damage nor personal injury alleged in the breach of contract action.

The court grants summary judgment for plaintiff.

 

Insurance

 

NFIP – Hurricane Irene Repairs – Rotting Girders – Subrogation

Shearer v. State Farm Fire & Casualty Co. (Lawyers Weekly No. 002-005-18, 8 pp.) (Terrence Boyle, J.) 2:17-cv-00031; E.D.N.C.

Holding: Plaintiffs allege that the current problems with their Kill Devil Hills home arose out of repairs made after Hurricane Irene. Since plaintiffs’ claim was filed well beyond the date for Hurricane Irene claims, and since the subrogation clause of the standard flood insurance policy applies only to direct damage (e.g., if someone causes a flood), plaintiffs have failed to state a claim against the administrator of the Federal Emergency Management Agency.

The court grants FEMA’s motion to dismiss.

 

Intellectual Property

 

Patent Infringement Claim – Invalidity – Abstract Idea – Online Buying & Selling

VOIT Technologies, LLC v. Del-Ton, Inc. (Lawyers Weekly No. 002-002-18, 7 pp.) (Terrence Boyle, J.) 5:17-cv-00259; E.D.N.C.

Holding: Plaintiff alleges that defendant’s online shopping portal infringes its patent of “a method of buying and selling an item” through the internet; however, plaintiff’s patent merely describes an abstract idea, so the process is not patent-eligible.

Defendant’s motion to dismiss is granted.

 

Labor & Employment

 

Disability Discrimination Claim – Stroke Victim – Job’s Essential Functions

Moore v. Wal-Mart Stores East, LP (Lawyers Weekly No. 004-003-18, 17 pp.) (Max Cogburn Jr., J.) 1:16-cv-00362; W.D.N.C.

Holding: After plaintiff’s stroke and rehab, he was able to perform most of the essential functions of his job, so defendant allowed him to return to work with the expectation that further therapy would improve his capabilities. When the expected improvement did not occur, defendant was not required to continue to allow plaintiff to stay in a job he could not fully perform.

The court grants defendant’s motion for summary judgment.

 

Labor & Employment

 

Lodging-as-wages issue remanded for factfinding

Balbed v. Eden Park Guest House LLC (Lawyers Weekly No. 001-021-18, 14 pp.) (Motz, J.) No. 17-1187, Jan. 25, 2018; DMD (Messitte, J.) 4th Cir.

Holding: Where a live-in innkeeper’s employment terms were subject to an agreement, her FLSA claims required thorough factfinding by the trial court to determine whether the agreement terms were reasonable.

 

Labor & Employment

 

Public Employees – Constitutional – ‘Fruits of Their Own Labor’ – First Impression – Police Promotion Exam

Holding: By alleging that the defendant-city violated its own policies when it refused to allow him to grieve the results of his police sergeant’s exam – which he says was based on old law while his answers were based on current law – plaintiff has stated a direct claim under N.C. Const. art. I, § 1.

We affirm the Court of Appeals’ reversal of the trial court’s order granting the city’s motion to dismiss plaintiff’s art. I, § 1 claim. We reverse the Court of Appeals’ reversal of the trial court’s dismissal of plaintiff’s claim under N.C. Const. art. I, § 19.

Tully v. City of Wilmington (Lawyers Weekly No. 010-009-18, 19 pp.) (Robin Hudson, J.) Appealed from New Hanover County Superior Court (Gary Trawick, J.) S. Luke Largess & Cheyenne Chambers for plaintiff; Katie Weaver Hartzog for defendant; Robert Elliot, R. Michael Elliot, Michael Byrne, M. Travis Payne, J. Michael McGuinness & Megan Milliken for amici curiae. N.C. S. Ct.

 

Labor & Employment

 

Schools & School Boards – Civil Practice – Pleadings – Contents & Service – Administrative

Butler v. Scotland County Board of Education (Lawyers Weekly No. 011-026-18, 13 pp.) (Mark Davis, J.) Appealed from Scotland County Superior Court (Tanya Wallace, J.) N.C. App.

Holding: Because G.S. § 115C-325.8 does not specifically address (1) the contents of a petition for judicial review of a school board’s decision or (2) the manner in which the petition must be served, G.S. § 150B-46 – a statute within the Administrative Procedure Act – governs these issues.

We affirm the superior court’s dismissal of the petitioner-teacher’s petition.

 

Real Property

 

Condemnation – Valuation – Real Estate Broker – Evidence

Holding: G.S. § 93A-83, which governs the practice of providing broker price opinions and comparative market analyses, prohibits a real estate broker from providing an appraisal “under the authority of” Article 6 of G.S. Chapter 93A. But the authority of a broker to testify as an expert in court and thus to prepare an expert report does not come from Article 6 of Chapter 93A; instead, that authority comes from N.C. R. Evid. 702 and related case law. Therefore, a broker could prepare an expert report and testify as to the fair market value of land being condemned by the Department of Transportation.

We reverse the Court of Appeals’ decision to affirm the trial court’s order granting the DOT’s motion to exclude defendants’ expert and his report. We affirm the trial court’s jury instruction on fair market value, which was taken almost verbatim from one of this court’s opinions.

North Carolina Department of Transportation v. Mission Battleground Park, Dst (Lawyers Weekly No. 010-011-18, 14 pp.) (Mark Martin, C.J.) Appealed from Guilford County Superior Court (Richard Gottlieb, J.) Hilda Burnett-Baker & Phyllis Turner for plaintiff; Patrick Kane, Bruce Ashley, Kip Nelson & Matthew Nis Leerberg for defendants; Lorin Lapidus, G. Gray Wilson & Garth Dunklin for amicus curiae. N.C. S. Ct.

 

Real Property

 

Inverse & Direct Condemnation – Prior Action Pending

When the Department of Transportation filed this direct condemnation action, the defendant-landowner already had an inverse condemnation action pending in which the trial court had set out a procedure for DOT to follow for filing a plat and making a good faith deposit. Even though the trial court in the indirect condemnation action had not yet decided whether the inverse takings were in fee simple, DOT could not circumvent the inverse condemnation proceedings by filing this subsequent action, which seeks to condemn the same property at issue in the inverse condemnation action.

We affirm the trial court’s dismissal of DOT’s direct condemnation action.

Department of Transportation v. Stimpson (Lawyers Weekly No. 011-097-18, 19 pp.) (Linda McGee, C.J.) Appealed from Forsyth County Superior Court (John Craig III, J.) James Stanley Jr., J. Aldean Webster III, Alexandra Hightower and William Smith for plaintiff; Matthew Bryant, T. Paul Hendrick, Timothy Nerhood, W. Kirk Sanders and Kenneth Otis III for defendant. N.C. App.

 

Real Property

 

Private Condemnation – Land Value – Evidence – Comparable Sale – Impeachment

In a private condemnation action, the condemnor was improperly allowed to cross-examine the landowner about the sale of property that was not shown to be comparable to the land being condemned and then to impeach the landowner about the similarity of handwriting that appeared on the deed to the other property with samples of his own handwriting.

We affirm the trial court’s grant of the landowner’s motion for a new trial.

Piedmont Natural Gas Co. v. Kinlaw (Lawyers Weekly No. 011-106-18, 14 pp.) (Valerie Zachary, J.) Appealed from Robeson County Superior Court (J. Gregory Bell, J.) William Moss for petitioner; David Murray and C. Martin Scott II for respondent. N.C. App.

 

Tort/Negligence

 

Abuse of Process – Non-Judicial Actions – Defamation – Google AdWords Campaign – Tortious Interference

Addison Whitney, LLC v. Cashion (Lawyers Weekly No. 020-001-18, 19 pp.) (Adam Conrad, J.) 2017 NCBC 109

Holding: A Google AdWords campaign targeted at defendants’ potential customers was not an abuse of process; however, it may form the basis for a defamation claim.

The court grants plaintiff’s motion to dismiss defendants’ abuse of process counterclaim but denies the motion as to defendants’ counterclaims for defamation (insofar as it relies on the AdWords campaign), tortious interference with economic advantage, and unfair trade practices.

 

Tort/Negligence

 

Auto Accident – Contributory Negligence – Failure to Keep Lookout

Even though defendant failed to stop at a stop sign just before plaintiff – who had the right-of-way – T-boned him, since plaintiff failed to brake after she surmised that defendant would not stop for the stop sign, the trial court properly instructed the jury on contributory negligence.

We affirm judgment for defendant.

O’Neal v. Fox (Lawyers Weekly No. 012-038-18, 10 pp.) (Chris Dillon, J.) Appealed from Johnston County Superior Court (Thomas Lock, J.) Gregory Posch and Brenton Adams for plaintiff; Kristie Hedrick and M. Duane Jones for defendants. N.C. App. Unpub.

 

Tort/Negligence

 

Domestic Relations – Alienation of Affection & Criminal Conversation – Pre- & Post-Separation Evidence

Rodriguez v. Lemus (Lawyers Weekly No. 011-018-18, 12 pp.) (Lucy Inman, J.) Appealed from Catawba County Superior Court (Timothy Kincaid, J.) N.C. App.

Holding: In addition to evidence of defendant’s pre-separation contacts with plaintiff’s husband, the trial court could consider evidence that, after plaintiff and her husband separated, the husband moved in with defendant and that defendant bore a child 10 months later. The evidence was sufficient to support the trial court’s conclusion that defendant engaged in alienation of affection and criminal conversation with plaintiff’s husband.

We affirm the trial court’s $65,000 judgment in favor of plaintiff.

 

Tort/Negligence

 

Dram Shop Claim – Contributory Negligence – Hotel Bar

Holding: Where plaintiff’s decedent consumed at least 10 drinks in four and a half hours at defendants’ bar, plaintiff cannot sue defendants for his decedent’s death from alcohol poisoning because defendants and the decedent engaged in the same level of negligence.

We reverse the Court of Appeals’ reversal of the trial court’s dismissal of plaintiff’s common law dram shop claim. Defendants’ petition for discretionary review as to an additional issue was improvidently allowed.

Davis v. Hulsing Enterprises, LLC (Lawyers Weekly No. 010-008-18, 13 pp.) (Barbara Jackson, J.) (Robin Hudson, J., joined by Cheri Beasley & Michael Morgan, JJ., dissenting) Appealed from Mecklenburg County Superior Court (Richard Boner, J.) On appeal from the Court of Appeals. Charles Monnett III for plaintiff; Isaac Northup Jr. for defendants; R. Frank Gray & Lori Jones for amicus curiae. N.C. S. Ct.

 

Tort/Negligence

 

Fraud & Breach of Fiduciary Duty – Civil Practice – Damages Amount – Corporate – Shares Sale

Bickley v. Fordin (Lawyers Weekly No. 011-062-18, 17 pp.) (Chris Dillon, J.) Appealed from Wake County Superior Court (G. Wayne Abernathy, J.) N.C. App.

Holding: After defendant Fordin admitted that he owed plaintiff $70,000 and plaintiff presented evidence that he should have received $940,000, the jury awarded plaintiff $505,000. Although this is the average between what plaintiff sought and defendant offered, this fact alone is insufficient for defendants to demonstrate that the award was an improper exercise of jury discretion.

We affirm the trial court’s rulings and the judgment.

 

Tort/Negligence

 

Fraud – Deck Repair – Home Purchase – Unfair Trade Practices

Holding: Although the complaint does not make clear what relationship there is between plaintiffs and defendants, plaintiffs allege that defendants misrepresented the condition of a house’s deck to them and concealed a material fact in order to intentionally deceive them, and as a result of that deception plaintiffs purchased the house with the defective deck. While we are not aware of any case in which fraud was ultimately found where there was no relationship alleged between the parties, the complaint alleges all the elements of fraud.

We reverse the trial court’s dismissal of plaintiffs’ fraud and unfair trade practices claims.

Capps v. McSwain (Lawyers Weekly No. 012-032-18, 7 pp.) (Donna Stroud, J.) (Wanda Bryant, J., concurring in the result only without separate opinion) Appealed from Forsyth County Superior Court (Susan Bray, J.) E. Winslow Taylor for plaintiffs; Lee Whitman, Paul Puryear Jr. and Tobias Hampson for defendants. N.C. App. Unpub.

 

Tort/Negligence

 

Fraud – First Impression – Corporate Acquisition – Officer Liability – Safety Record – Accounts Receivable

Tillery Environmental LLC v. A&D Holdings, Inc. (Lawyers Weekly No. 020-014-18, 79 pp.) (Louis Bledsoe III, J.) 2018 NCBC 12 pp.)

Holding: Since a corporation can only act through its officers, corporate officers involved in selling a company are not shielded from liability for allegedly fraudulent statement in the stock purchase agreement.

The sellers’ motions to dismiss are granted in part and denied in part.

 

Tort/Negligence

 

Highway Accident – Truck Driver – Employer’s Liability

McAfee v. Howard Baer, Inc. (Lawyers Weekly No. 004-002-18, 12 pp.) (Dennis Howell, USMJ) 1:15-cv-00182; W.D.N.C.

 

Holding: The defendant-truck driver’s minor traffic infraction record, his education and experience, and the defendant-trucking company’s training regimen show that the company was negligent neither in hiring, training or retaining the driver nor in entrusting a truck to him.

The court grants the company’s motion for summary judgment.

 

Tort/Negligence

 

Medical Malpractice – Civil Practice – Statute of Limitations – Minor – GAL Appointment – Voluntary Dismissal

Holding: When a guardian ad litem was appointed for the minor plaintiff, the minor’s disability was lifted, and the statute of limitations started running against him. The GAL’s voluntary dismissal of the minor’s medical malpractice action did not toll the statute of limitations.

We reverse the Court of Appeals’ decision, which reversed the trial court’s dismissal order.

King v. Albemarle Hospital Authority (Lawyers Weekly No. 010-012-18, 14 pp.) (Paul Newby, J.) (Cheri Beasley, J., joined by Robin Hudson & Michael Morgan, JJ., dissenting) Appealed from Pasquotank County Superior Court (Cy Grant, J.) On discretionary review from the Court of Appeals. Amberley Hammer & Wayne Mansulla for plaintiff; Jay Salsman, Charles Simpson Jr., Samuel Thompson & Robert Desmond for defendants; Adam Stein & Ann Ochsner for amicus curiae. N.C. S. Ct.

 

Tort/Negligence

 

Officers reasonably shot charging dog

Police responding to a service call did not violate the caller’s constitutional rights by shooting at his two pit bulls after they charged at officers. Police also had probable cause to arrest the caller for reckless driving on his way to the animal hospital.

Lee v. Town of Fort Mill (Lawyers Weekly No. 006-005-18, 12 pp.) (Per Curiam) No. 17-1064; Mar. 1, 2018; DSC at Rock Hill (Anderson, J.) James Elliot Field for Appellant; Andrew Lindemann for Appellees. 4th Cir. Unpub.

 

Tort/Negligence

 

Schools & School Boards – School Bus Route – Subject Matter Jurisdiction

The Tort Claims Act gives the Industrial Commission jurisdiction over claims involving school bus maintenance and operation but not claims involving the design of school bus routes. The latter claims may be brought in superior court if the school system has waived its governmental immunity by purchasing insurance.

We reverse the Commission’s ruling that it has jurisdiction over plaintiffs’ claims against the school system officials who designed the bus route that required plaintiffs’ decedent to cross a highway to get to her bus stop (before the bus turned around and drove right by her house).

Martinez v. Wake County Board of Education (Lawyers Weekly No. 011-105-18, 24 pp.) (Mark Davis, J.) Appealed from the Industrial Commission. Matthew Nis Leerberg and Marie Lang for plaintiffs; Olga Vysotskaya de Brito, Alexander Walton and Christina Hayes for defendant; Sam McGee and T. Shawn Howard for amicus curiae. N.C. App.

 

Workers’ Compensation

 

Authorized Treating Physician – Defendants’ Request – Pain Management – Opioids

Holding: Defendants presented evidence that, despite 26 years of extraordinary amounts of pain medications, plaintiff’s pain from her compensable back injury remained at an eight or nine out of ten. This evidence supported the Industrial Commission’s uncontested finding that plaintiff’s current course of treatment had not effected a cure, provided relief or lessened the period of her disability.

We affirm the order authorizing a change in plaintiff’s authorized treating physician.

Caudill v. Huitt Mills, Inc. (Lawyers Weekly No. 012-033-18, 12 pp.) (Philip Berger Jr., J.) Appealed from the Industrial Commission. Daniel Johnson for plaintiff; Henry Byrum Jr. for defendants. N.C. App. Unpub.

 

Workers’ Compensation

 

Back Injury – Pre-existing Condition – Aggravation Claim – Insufficient Evidence

Holding: Although plaintiff’s neurosurgeon opined that a workplace incident had aggravated plaintiff’s pre-existing back condition, since the only basis for the neurosurgeon’s opinion was plaintiff’s account of the injury and his resulting pain, the neurosurgeon did not express an independent, objective medical opinion that plaintiff’s alleged injury likely caused or contributed to plaintiff’s back condition.

We affirm the Industrial Commission’s denial of benefits.

Byrd v. Lowe’s Home Centers, Inc. (Lawyers Weekly No. 012-028-18, 27 pp.) (Linda McGee, C.J.) Appealed from the Industrial Commission; M. Alan LeCroy for plaintiff; Matthew Covington and Walter Dennis for defendants. N.C. App. Unpub.

 

Workers’ Compensation

 

Black-lung presumption puts burden on employer

W.V. Coal Workers’ Pneumoconiosis Fund v. DOL Office of Workers Comp. Programs (Lawyers Weekly No. 001-020-18, 14 pp.) (Harris, J.) No. 16-2453, Jan. 26, 2018; BRB. 4th Cir.

Holding: Equivocal medical testimony could not rebut the Black Lung Benefits Act’s 15-year presumption of causation.

 

Workers’ Compensation

 

Continuing Disability – Suitable Jobs – Getting One – Insufficient Findings

Neckles v. Harris Teeter (Lawyers Weekly No. 011-060-18, 10 pp.) (Ann Marie Calabria, J.) Appealed from the Industrial Commission. N.C. App.

Holding: Even assuming, as the Industrial Commission concluded, that a 30-pound lifting restriction ordered by plaintiff’s doctors “would open up numerous jobs” to plaintiff, the Commission nevertheless failed to make any findings regarding plaintiff’s ability to obtain one of those jobs.

We reverse the Commission’s termination of plaintiff’s temporary total disability benefits and remand for further findings.

 

Workers’ Compensation

 

Disability – Futility – Manual Laborer – Lifting Restriction

Holding: Plaintiff produced evidence that it would be futile for him to seek work. Since defendant’s vocational expert did not take into account that plaintiff is a 55-year-old manual laborer with a limited education and lifting restrictions, defendant has failed to show that there are jobs that plaintiff could get.

We remand the Industrial Commission’s denial of benefits for further proceedings.

Adame v. Aerotek (Lawyers Weekly No. 012-026-18, 14 pp.) (Donna Stroud, J.) Appealed from the Industrial Commission. Charles Mast for plaintiff; Kristine Prati for defendant. N.C. App. Unpub.

 

Workers’ Compensation

 

Occupational Disease

Terry v. Harris Teeter Supermarkets (Lawyers Weekly No. 17-491-1, 8 pp.) (Richard Dietz, J.) Appealed from N.C. Industrial Commission. N.C. App. Unpub.

Holding:  Employee-plaintiff works as a meat cutter at a Harris Teeter supermarket.  He suffers from Guillain-Barre syndrome, a condition that existed before he began work as a meat cutter and which prevents him from sensing cold in his extremities.  He developed severe injuries to his fingers after repeatedly picking up frozen meats and other cold items while on the job and sought compensation under the Workers’ Compensation Act.

We find that the evidence below supports the Commission’s findings and corresponding conclusions that the employee did not suffer from an occupational disease as that term is defined in the Act. The Commission properly determined, based on its findings, that the employee did not suffer from a disease “due to causes and conditions which are characteristic of and peculiar to” his occupation. N.C. Gen. Stat. § 97-53(13).

Affirmed.

 

Workers’ Compensation

 

Occupational Disease – Asthma – Greater Risk – Expert Testimony Required

Holding: Plaintiff presented expert testimony that the dusty environment at the defendant-employer’s plant aggravated plaintiff’s pre-existing asthma; however, plaintiff failed to present expert testimony that his job placed him at a greater risk of contracting asthma than the general public.

We affirm the Industrial Commission’s denial of benefits.

Briggs v. Debbie’s Staffing, Inc. (Lawyers Weekly No. 011-080-18, 22 pp.) (Mark Davis, J.) Appealed from the Industrial Commission. Edward Pauley for plaintiff; John Tomei, Matthew Flammia, Tara Davidson Muller, Gregg Newton, Buxton Copeland & Tracy Myatt for defendants. N.C. App.

 

Workers’ Compensation

 

Subrogation Claim – Employer’s Name – Untimely Filed – Civil Practice – Joinder

Plastic Fusion Fabricators, Inc. v. Dam-It Dams, Inc. (Lawyers Weekly No. 002-001-18, 9 pp.) (W. Earl Britt, S.J.) 5:17-cv-00267; E.D.N.C.

Holding: After plaintiff’s employee was injured by defendant’s allegedly defective product, G.S. § 97-10.2 gave the plaintiff-employer a window (between one year after the injury to 60 days before the expiration of the three-year statute of limitations) in which plaintiff could sue defendant in plaintiff’s own name to recover the workers’ compensation benefits it had paid to its injured employee. Although plaintiff filed suit before the statute of limitations expired, it did so in the last 60 days of the limitations period. During that 60 days, only the employee had the right to sue defendant; accordingly, plaintiff lacks standing to sue under § 97-10.2.

The court grants defendant’s motion to dismiss.

 

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