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Most Important Opinions for 2Q 2018

Most Important Opinions for 2Q 2018


The most important opinions for the second quarter of 2018


State disability findings may deserve substantial weight

An administrative law judge erred in according little weight to a North Carolina Department of Health and Human Services determination that the Social Security claimant qualified as disabled. The ALJ also did not properly consider the limited extent to which the claimant could perform daily activities.

Woods v. Berryhill (Lawyers Weekly No. 001-077-18, 16 pp.) (Motz, J.) No. 17-1500; Apr. 26, 2018; from WDNC at Asheville (Cogburn, J.). Charlotte W. Hall for Appellant; Leo Rufino Montenegro for Appellee. 4th Cir.


Agency – Settlement & Absconding – Accord & Satisfaction – Auto Accident

After plaintiff was seriously injured in an auto accident, she may not have specifically authorized her attorney to settle for the liability limits of the other driver’s auto insurance, but the attorney had the apparent authority to enter into the settlement. Although plaintiff’s attorney absconded with the settlement funds, the other driver is entitled to the defense of accord and satisfaction.

We affirm the trial court’s grant of summary judgment for defendant Cruz.

Hogue v. Cruz (Lawyers Weekly No. 012-061-18, 11 pp.) (Donna Stroud, J.) Appealed from Caswell County Superior Court (Osmond Smith, J.) Drew Brown for plaintiff; Joshua Rotenstreich, Kenneth Rotenstreich and Torin Fury for defendants. N.C. App. Unpub.


Civil Practice – Subject Matter Jurisdiction – Declaratory Judgment Action – Disciplinary Action

Plaintiff has standing to ask the superior court for a declaration that the superior court has concurrent jurisdiction (with the State Bar) to resolve matters of attorney discipline and misconduct.

We reverse the superior court’s dismissal of this claim but affirm as to two other claims.

Boyce v. North Carolina State Bar (Lawyers Weekly No. 011-113-18, 23 pp.) (Lawyers Weekly No. (Robert Hunter Jr., J.) (Richard Dietz, J., concurring) Appealed from Wake County Superior Court (Donald Stephens, J.) Gordon Bylce for plaintiff; David Johnson and Katherine Jean for defendant. N.C. App.


Tort/Negligence – Legal Malpractice – Breach of Fiduciary Duty – In pari delicto – Aiding & Abetting – Corporate – Agency

While the plaintiff-corporation’s directors were allegedly looting the corporation (Zloop) for personal benefit, their fraud benefitted Zloop by allowing it to temporarily remain in business and to obtain franchises and lines of credit; as such, the directors’ acts are imputed to Zloop as a matter of law (pursuant to the Delaware and New York approach, which the court predicts the North Carolina Supreme Court would adopt). The directors’ alleged intentional and criminal conduct was at least equal to, if not substantially more egregious, than the alleged conduct of the defendant-law firm and the defendant-lawyers, which is based in negligence rather than in knowing and intentional misconduct or fraud. Accordingly, Zloop’s own pleading demonstrates that its legal malpractice and breach of fiduciary duty claims are barred by the doctrine of in pari delicto.

The court grants defendants’ motion for judgment on the pleadings.

Zloop, Inc. v. Parker Poe Adams & Bernstein, LLP (Lawyers Weekly No. 020-017-18, 45 pp.) (James Gale, C.J.) Gavin Reardon, Amiel Rossabi, James Gibson and Charles Kreamer for plaintiff; Robert Fuller and Stuart Pratt for defendants. 2018 NCBC 16

Civil Practice

$150,000 sanction on counsel, firms upheld

Attorneys’ “egregious” conduct was designed to, and did, mislead the district court, the 4th Circuit affirmed. They challenged the authenticity of a loan agreement for two years before revealing that they possessed an identical copy, obtained from their client, before filing the complaint. Their firms ratified their conduct and were thus jointly liable, though an associate’s liability was capped at $100,000 for his lesser role.

Six v. Generations Fed. Credit Union (Lawyers Weekly No. 001-097-18, 25 pp.) (Duncan, J.) No. 17-1548; May 31, 2018; from MDNC at Greensboro (Eagles, J.) Kannon K. Shanmugam for Appellants; Leslie Sara Hyman for Appellee. 4th Cir.

Civil Practice

Appeals – Appellate Court Designation

Appeals from the Business Court must be taken to the N.C. Supreme Court, yet plaintiff’s notice of appeal designated the N.C. Court of Appeals rather than the Supreme Court. Even though this court’s judgment addressed significant issues that would present matters of first impression before the Supreme Court, the court concludes that it does not have authority to excuse the notice’s failure to comply with N.C. R. App. P. 3 or to allow an amended notice of appeal.

The court grants defendants’ motion to dismiss the appeal and denies plaintiff’s motion for leave to file an amended notice of appeal.

Zloop, Inc. v. Parker Poe Adams & Bernstein, LLP (Lawyers Weekly No. 020-025-18, 5 pp.) (James Gale, C.J.) Gavin Reardon for plaintiff; Robert Fuller for defendants. 2018 NCBC 39

Civil Practice

Class Action – Mootness – Uninsured Hospital Patient – Collection Claim Dismissed

Plaintiff’s complaint seeks a declaratory judgment that the defendant-hospital’s “Patient Consent” form, obligating a patient to pay the hospital “in accordance with the regular rates and terms” applicable at the time of the patient’s treatment, entitled the hospital to no more than the reasonable value of the treatment or services provided. However, where the complaint’s description of its proposed class excludes patients whose bills have been written off, and where the hospital dismissed its collection action against the plaintiff-patient and his wife, plaintiff no longer falls within the proposed class.

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

Chambers v. Moses H. Cone Memorial Hospital (Lawyers Weekly No. 011-125-18, 10 pp.) (Wanda Bryant, J.) Appealed from Guilford County Superior Court (James Gale, J.) John Bloss and Barry Kramer for plaintiff; Philip Mohr and Brent Powell for defendants. N.C. App.

Civil Practice

Court lacked jurisdiction to weigh equitable tolling

A petitioner filed her “innocent spouse” tax claim one week late because IRS representatives allegedly misinformed her of the filing deadline, but the U.S. Tax Court had no authority to waive compliance.

Nauflett v. Comm’r of Internal Revenue (Lawyers Weekly No. 001-105-18, 10 pp.) (Agee, J.) No. 17-1986; June 14, 2018; from US Tax Ct. Allison Bray for Appellant; Richard Caldarone for Appellee. 4rh Cir.

Civil Practice

Discovery – Multiple Violations – Sanctions – Answer Stricken – Database & Duty to Supplement

In response to plaintiff’s interrogatory asking defendant to identify all relevant documents, defendant gave an incomplete reply by referring plaintiff to “documents produced in the Defendant’s Responses to the Plaintiffs’ First Request for Production of Documents.” Despite its duty to supplement under N.C. R. Civ. P. 26(e) and two prior discovery orders being entered against it, defendant has taken the position that, by giving plaintiff access to a searchable database its obligation to supplement is fulfilled, and defendant continues to produce documents only after their existence is discovered by plaintiffs’ counsel. Defendant has again breached its discovery duties.

Having considered lesser sanctions, the court finds that they would be ineffective in correcting defendant’s conduct. Defendant’s answer is stricken, and defendant is ordered to pay plaintiffs’ reasonable attorney fees in bringing this motion.

Walsh v. Cornerstone Health Care, P.A. (Lawyers Weekly No. 021-002-18, 5 pp.) (Jeffery Carpenter, J.) Davidson County Superior Court. G. Gray Wilson and Loring Lapidus for plaintiffs; Rodney Guthrie and Roberta King Latham for defendant. 14 CVS 3289

Civil Practice

Discovery Sanctions – Default – Computer Server Password – Personal Laptop

Knowing the plaintiff-sellers were seeking discovery of the computers that the defendant-buyers acquired in the sale of the defendant-business, defendants (1) destroyed many of those computers, (2) produced the computer server with the claim that no one had the password, and (3) refused to produce defendant LeClair’s laptop despite the court order’s protection of any personal information found thereon. It was within the trial court’s discretion to strike defendants’ defenses and to enter default against defendants.


GEA, Inc. v. Luxury Auctions Marketing, Inc. (Lawyers Weekly No. 011-162-18, 24 pp.) (Valerie Zachary, J.) Appealed from Mecklenburg County Superior Court (Hugh Lewis, J.) No brief filed for plaintiffs; Paul Vancil for defendants. N.C. App.

Civil Practice

FAA service of final decision was proper

The Federal Aviation Administration’s extensions of its own decision deadlines were not equitable justification for untimely filing of a petition to review its ultimate determination.

Skydive Myrtle Beach Inc. v. Horry Cnty. Dep’t of Airports (Lawyers Weekly No. 006-009-18, 11 pp.) (Per Curiam) No. 16-2337; June 5, 2018; from FAA. 4th Cir. Unpub.

Civil Practice

Judgment debtor didn’t delay payment owed to Medicare

A plaintiff who was owed a medical-malpractice judgment that would partially be reimbursed to Medicare had standing to sue the judgment debtor for delayed payment. However, the 37 days between the judgment and payment did not constitute “delay.”

Netro v. Greater Baltimore Bed. Ctr. Inc. (Lawyers Weekly No. 001-096-18, 26 pp.) (Wilkinson, J.) No. 17-1597; June 4, 2018; from DMD at Baltimore (Russell, J.) George Somerville Tolley III for Appellant; Christina Nicole Billiet for Appellee. 4th Cir.

Civil Practice

Personal Jurisdiction – Corporate Layers – Charlotte School of Law

Where (1) the moving defendants have no physical presence in North Carolina; (2) their connection to North Carolina and Charlotte School of Law (CSL) is limited to their membership in a Delaware limited liability company that is an additional two corporate levels removed from the subsidiary conducting business in North Carolina; (3) plaintiffs have offered no evidence to contradict the moving defendants’ denial as to any involvement in the day-to-day management of CSL, marketing of CSL, accreditation issues at CSL, or the eligibility of CSL students to receive Title IV funds; and (4) a mention of CSL on defendant Sterling Fund Management LLC’s website is merely a brief profile one of the many companies in Sterling Fund Management’s investment portfolio, the court finds that the moving defendants have not purposefully directed activities toward North Carolina, meaning the exercise of specific jurisdiction over the moving defendants would be inconsistent with due process.

The court grants the moving defendants’ motion to dismiss for lack of personal jurisdiction.

Herrera v. Charlotte School of Law, LLC (Lawyers Weekly No. 020-016-18, 17 pp.) (James Gale, C.J.) Gary Jackson, Hoyt Tessener, James Farrin, Christopher Bagley, Sidney Figel, Stefanie Rodriguez and Lawrence Serbin for plaintiffs; Robert Harrington, Adam Doerr, William Roberts, Nicholas Berg and Peter L. Welsh for the moving defendants. 2018 NCBC 15

Civil Practice

PETA can challenge N.C. employee access law

Animal rights groups sufficiently alleged an injury-in-fact to support their standing to challenge a recent North Carolina statute allowing employers to hold their employees civilly liable for damage caused by unauthorized access to nonpublic areas.

People for the Ethical Treatment of Animals Inc. v. Stein (Lawyers Weekly No. 006-006-18, 19 pp.) (Per Curiam) No. 17-1669; June 5, 2018; from MDNC at Greensboro (Schroeder, J.). David Samuel Muraskin for Appellants; Sripriya Narasimhan for Appellees. 4th Cir. Unpub.

Civil Rights

Prosecutor immune for Freddie Gray actions

Baltimore State’s Attorney Marilyn Mosby is absolutely immune from suit for her statements and prosecution of police officers involved with citizen Freddie Gray on the day he sustained fatal injuries in a police van, and the officers’ claims arising from those actions are thus barred.

Nero v. Mosby (Lawyers Weekly No. 001-081-18, 42 pp.) (Gregory, J.) No. 17-1166; May 7, 2018; from DMD at Baltimore (Garbis, J.). Karl Aram Pothier for Appellant; Andrew James Toland III and Brandy Ann Peeples for Appellees. 4th Cir.

Civil Rights

Public Records Act – FERPA – University Disciplinary Actions – Sexual Assaults

Plaintiffs request that the defendant-university produce certain public records: the name of anyone found responsible for sexual assault or misconduct by various university bodies, the nature of each violation, and the sanctions imposed. Contrary to defendants’ arguments, the federal Family Educational Rights and Privacy Act does not give defendants discretion as to whether or not to release such records.

We affirm the trial court’s ruling that defendants need not reveal the dates of the offenses. Otherwise, we reverse the trial court’s ruling that defendants need not produce the records.

DTH Media Corp. v. Folt (Lawyers Weekly No. 011-130-18, 27 pp.) (John Tyson, J.) Appealed from Wake County Superior Court (Allen Baddour, J.) Hugh Stevens for plaintiffs; Stephanie Brennan for defendants; Elliot Engstrom for amicus curiae. N.C. App.


Data breach victims have standing for contract claims

After credit cards were fraudulently opened in their names, a class of optometrists alleged an injury in fact traceable to their professional organization.

Hutton v. Nat’l Bd. of Examiners in Optometry Inc. (Lawyers Weekly No. 001-106-18, 19 pp.) (King, J.) No. 17-1506; June 12, 2018; from DMD at Baltimore (Bredar, J.) Norman E. Siegel for Appellants; Claudia Drennen McCarron for Appellee. 4th Cir.


Due Process – Concealed Carry Permit – Renewal Denial – Appeals

When a local sheriff determined that petitioner’s application for renewal of a concealed handgun permit ought to be denied on the grounds that petitioner “suffer[s] from a . . . mental infirmity that prevents the safe handling of a handgun,” petitioner should have been given a chance to dispute the allegations underlying the denial before it became final. Although petitioner was allowed to appeal to district court, since the district court judge made the decision to uphold the denial without giving petitioner an opportunity to be heard (in fact, petitioner first learned the precise ground upon which his application had been denied in the district court’s order), petitioner was not given the process he was due.

The matter is reversed and remanded for further proceedings.

DeBruhl v. Mecklenburg County Sheriff’s Office (Lawyers Weekly No. 011-129-18, 18 pp.) (Valerie Zachary, J.) Appealed from Mecklenburg County District Court (Regan Miller, J.) Ty Kimmell McTier and David Redding for petitioner; Ronald Gibson for respondent. N.C. App.


Fired officers’ due process claims can proceed

Under clearly established law, publication of public safety officers’ allegedly defamatory termination letters to the media before holding a name-clearing hearing supported the officers’ claims of due process violations.

Cannon v. Village of Bald Head Island, N.C. (Lawyers Weekly No. 001-099-18, 32 pp.) (Wynn, J.) No. 17-1847; May 30, 2018; from EDNC at Wilmington (Howard, J.). Norwood Pitt Blanchard III for Appellant; Bradley Andrew Coxe for Appellees. 4th Cir.


Shooting suicidal man was excessive force

An officer violated the Fourth Amendment in shooting a suicidal man who had a knife but was threatening only himself. The officer was entitled to qualified immunity, but the unconstitutionality of his actions is clearly established as of the date of this opinion.

Wilson v. Prince George’s County, Md. (Lawyers Weekly No. 001-101-18, 20 pp.) (Keenan, J.) No. 17-1856; June 18, 2018; from DMD at Greenbelt (Connelly, J.) George Aubrey Harper for Appellant; Gessesse Teferi for Appellees. 4th Cir.


State Board of Education – Superintendent of Public Instruction – Powers & Duties

Where the General Assembly’s amendments to G.S. Chapter 115C generally give the Superintendent of Public Instruction authority over the day-to-day operations of the Department of Public Instruction, while making the superintendent subject to the rules and regulations set by the State Board of Education, the statutory changes do not interfere with the board’s constitutional authority to generally supervise and administer the public school system.

We affirm summary judgment for defendants.

North Carolina State Board of Education v. State (Lawyers Weekly No. 010-065-18, 33 pp.) (Sam Ervin IV, J.) (Robin Hudson, J., concurring in the result) (Mark Martin, C.J., not participating) Appealed from Wake County Superior Court. Robert Orr, Andrew Erteschik and John Durnovich for plaintiff; Olga Vysotskaya de Brita, Amar Majmundar, E. Hardy Lewis and Philip Isley for defendants. N.C. S. Ct.


Strip club license-denial provision unconstitutional

A city ordinance empowering the police chief to deny a “sexually oriented business” license application if he determined that the business “would not comply with all applicable laws” was an overbroad prior restraint.

Am. Entertainers LLC v. City of Rocky Mount, N.C. (Lawyers Weekly No. 001-076-18, 28 pp.) (Wynn, J.) No. 17-1577; Apr. 27, 2018; from EDNC at Raleigh (Dever, J.). Gary Scott Edinger for Appellant; James Nicholas Ellis for Appellee. 4th Cir.



Airplane Ownership – Fractional Shares – Component Parts – Bankruptcy

The parties owned fractional shares of different aircraft pursuant to a program formerly operated by the now-bankrupt Avantair, Inc. Since the governing documents allowed Avantair to move engines from one plane to another, defendants are not entitled to have the engines which are currently installed on plaintiffs’ plane – but were once installed on defendants’ plane – to be returned to defendants’ plane.

We affirm the trial court’s declaratory judgment in favor of plaintiffs.

Press v. AGC Aviation, LLC (Lawyers Weekly No. 011-188-18, 23 pp.) (Donna Stroud, J.) Appealed from Guilford County Superior Court (Richard Gottlieb, J.) Brian Kahn, Terrence McKelvey, Robert Muckenfuss and Joshua Whitlock for plaintiffs; Jonathan Ewing and Seth Cohen for defendants. N.C. App.


Economic loss rule erases conversion win

A defendant on the hook for almost $2 million in compensatory and punitive damages for conversion is entitled to judgment as a matter of law, since the plaintiffs’ conversion claim was based entirely on losses covered by the parties’ contract. Associated attorneys’ fees must also be reassessed.

Legacy Data Access Inc. v. Cadrillion LLC (Lawyers Weekly No. 001-083-18, 21 pp.) (Motz, J.) No. 17-1215; May 3, 2018; from WDNC at Charlotte (Whitney, J.) Glen Kirkland Hardymon for Appellants/Cross-Appellees; John Robert Buric for Appellees/Cross-Appellants; on brief: Benjamin E. Shook for Appellants; Preston Odom III and John Brickley for Appellees/Cross-Appellants. 4th Cir.


Mortgage Broker – Loan Broker Act – Attorney’s Fees – Unfair Trade Practices Act – Damages – New Jersey Loan

Although a violation of the Loan Broker Act is also a violation of the Unfair and Deceptive Trade Practices Act, since the Loan Broker Act has its own attorney’s fee provision, the trial court did not need to make findings as to the requirements of G.S. § 75-16.1 in order to make an award of attorney’s fees.

We affirm the trial court’s grants of summary judgment for defendants, both as to plaintiff’s claims and as to defendants’ counterclaims.

Quantum Mortgage Corp. v. Ghelani (Lawyers Weekly No. 012-050-18, 13 pp.) (Robert Hunter Jr., J.) Appealed from Mecklenburg County Superior Court (Linwood Foust & Lisa Bell, JJ.) Brian Steed Tatum for plaintiff; Adam Altman for defendants. N.C. App. Unpub.


Civil Practice – Pleadings – Capacity to Sue – Real Property – Partition Proceeding

We reverse for the reasons stated in Judge Dillon’s dissent (Petitioner alleged that it was a Delaware corporation but otherwise did not allege that it had engaged in any activity other than owning real estate. Therefore, petitioner was not required to aver that it had not been dissolved or had obtained a certificate of authority to transact business in North Carolina. Summary judgment on the basis of a failure to comply with N.C. R. Civ. P. 9(a) was error.).

Reversed and remanded.

Atlantic Coast Properties, Inc. v. Saunders (Lawyers Weekly No. 010-039-18, 2 pp.) (Per Curiam) Appealed from Currituck County Superior Court (Milton Fitch Jr., J.) On appeal from the Court of Appeals. M. H. Hood Ellis and Casey Peaden for petitioner; Brian Pearce and Norman Shearin for respondent. N.C. S. Ct.


LLCs liable for owner’s debts

Because Delaware law likely would allow creditors to reach LLCs’ assets under the theory of reverse veil-piercing, a debtor’s companies – which owned and managed his personal assets and in which he was the sole owner – could be held jointly liable for a judgment entered against him.

Sky Cable LLC v. DIRECTV Inc. (Lawyers Weekly No. 001-056-18, 30 pp.) (Keenan, J.) No. 16-1920; Mar. 28, 2018; WDVA at Harrisonburg (Urbanski, J.) 4th Cir.


Public vs. Private – Poison Pill – Civil Practice – Preliminary Injunction – Banks & Banking

Since a private corporation may not create a poison pill as a means of forestalling a hostile takeover, plaintiff has shown a likelihood of success on the merits of its declaratory judgment claim.

The court grants plaintiff’s motion for a preliminary injunction. Defendants are prohibited from taking any action under their Shareholder Rights Plan or from adopting any similar poison pill plans while this litigation is pending.

First Citizens BancShares, Inc. v. KS Bancorp, Inc. (Lawyers Weekly No. 020-022-18, 24 pp.) (Gregory McGuire, J.) Carl Patterson, Donald Tucker, Christopher Smith and Jang Jo for plaintiff; Jennifer Van Zant, Reid Phillips and Daniel Colston for defendant KS Bancorp, Inc.; Alan Ruley, Kevin Williams and Michael Phillips for the individual defendants. 2018 NCBC 23

Criminal Practice

Appeals – SBM – No Written Notice – Constitutional – Ineffective Assistance Claim

Defendant gave oral notice – but not the required written notice – that he wished to appeal the trial court’s satellite-based monitoring (SBM) order. In the past, this court has issued a writ of certiorari to hear SBM appeals; however, defendant had full knowledge of the procedure necessary to give notice of appeal concerning SBM implementation. Accordingly, we decline to grant certiorari.

We find no error in the trial court’s denial of defendant’s motion to discharge counsel. Otherwise, this appeal is dismissed.

State v. Cozart (Lawyers Weekly No. 011-207-18, 13 pp.) (Philip Berger Jr., J.) (Valerie Zachary, J., concurring) Appealed from Wake County Superior Court (Paul Ridgeway, J.) Sherri Lawrence for the state; Paul Herzog for defendant. N.C. App.

Criminal Practice

Appellate Review – Guilty Plea – Reservation of Right – Procedural Vehicle

The Court of Appeals correctly found that it had jurisdiction to review the trial court’s denial of defendant’s motion to dismiss a DWI charge; however, the Court of Appeals improperly let the lack of a procedural mechanism stand in the way of its discretionary exercise of such jurisdiction.

We reverse the Court of Appeals’ dismissal of defendant’s appeal and remand for further proceedings.

State v. Ledbetter (Lawyers Weekly No. 010-055-18, 9 pp.) (Cheri Beasley, J.) Appealed from Rowan County Superior Court (C.W. Bragg & Jeffrey Hunt, JJ.) Christopher Brooks for the state; Meghan Adelle Jones for defendant. N.C. S. Ct.

Criminal Practice

Constitutional – Double Jeopardy – Hung Jury – Prosecutor’s Dismissal

Where (1) defendant was indicted for murder; (2) a jury was empaneled but was unable to reach a verdict; (3) weeks after the mistrial, the trial court held a homicide status hearing; and (4) the prosecutor filed a Form AOC-CR-307 and checked “Dismissal” rather than “Dismissal with leave” or “reinstatement” and wrote on the form, “hung jury, State has elected not to re-try case,” then the Double Jeopardy clause barred the state from re-trying defendant after it acquired new evidence a few years later.

We vacate defendant’s conviction of second-degree murder.

State v. Courtney (Lawyers Weekly No. 011-173-18, 25 pp.) (Rick Elmore, J.) Appealed from Wake County Superior Court (Donald Stephens, J.) Jess Mekeel for the state; Amanda Zimmer for defendant. N.C. App.

Criminal Practice

Constitutional – Sentencing – Juvenile – Murder – Possibility of Parole

When read as a whole, the statutory scheme for sentencing juveniles convicted of first-degree murder does not presume that the sentence should be life without the possibility of parole.

We modify and affirm the Court of Appeals’ decision, which reversed and remanded the trial court’s sentence of life without parole.

State v. James (Lawyers Weekly No. 010-052-18, 45 pp.) (Sam Ervin IV, J.) (Cheri Beasley, J., joined by Robin Hudson, J., dissenting) Appealed from Mecklenburg County Superior Court (Robert Johnson, J.) On discretionary review from the Court of Appeals. Sandra Wallace-Smith and Robert Montgomery for the state; David Andrews for defendant; Marsha Levick, Eric Zogry, Mark Dorosin, Elizabeth Haddix, Jennifer Watson Marsh, Brent Ducharme, Allen Buansi, K. Ricky Watson Jr. and Peggy Nicholson for amici curiae. N.C. S. Ct.

Criminal Practice

DA Disqualification – Conflict of Interest – Insufficient Findings – Civil Suit

A criminal defendant’s filing of a civil lawsuit against a district attorney does not justify the disqualification of the district attorney.

We vacate the trial court’s order disqualifying the entire district attorney’s staff from prosecuting defendant Smith and five unnamed co-defendants.

State v. Smith (Lawyers Weekly No. 011-122-18, 14 pp.) (Lucy Inman, J.) Appealed from Bladen County Superior Court (Ola Lewis, J.) Kathleen Bolton for the state; Matthew Nis Leerberg and Kip David Nelson for defendant. N.C. App.

Criminal Practice

DWI – Corpus Delicti – Admission & Corroboration

In addition to defendant’s statement to the investigating state trooper that he was the driver of the wrecked vehicle and defendant’s appearance of intoxication, the state presented sufficient independent corroborating evidence that defendant had been driving the wrecked vehicle: (1) the wrecked vehicle was found nose down in a ditch; (2) one shoe was found in the driver’s side footwell of the vehicle, and defendant was wearing the matching shoe; (3) no one else was in the area at the time of the accident other than defendant, who appeared to be appreciably impaired; (4) defendant had an injury – a cut on his forehead – consistent with having been in a wreck; and (5) the wreck could not otherwise be explained.

We find no error in defendant’s convictions of driving while impaired, driving while license revoked, and careless and reckless driving.

State v. Hines (Lawyers Weekly No. 011-151-18, 12 pp.) (Wanda Bryant, J.) Appealed from Johnston County Superior Court (W. Douglas Parsons, J.) William Harkins Jr. for the state; William Spence for defendant. N.C. App.

Criminal Practice

DWI – Single-Car Accident – Timing of Impairment

Although the state presented evidence of 100 feet of tire impressions veering off a highway, past a scuffed boulder, and ending at a damaged, unoccupied vehicle whose registered owner (defendant) was found walking along the same highway disoriented and unsteady on his feet, and although defendant admitted that he was “smoked up on meth” and that he wrecked the vehicle “a couple of hours” earlier,” since the state did not present evidence as to when or where defendant got “smoked up on meth,” the state failed to prove that defendant had driven while impaired.

We reverse defendant’s DWI conviction.

State v. Eldred (Lawyers Weekly No. 011-143-18, 11 pp.) (Lucy Inman, J.) Appealed from Avery County Superior Court (Gary Gavenus, J.) Christina Hayes for the state; Craig Cooley for defendant. N.C. App.

Criminal Practice

DWI – Xanax – Drug Recognition Evidence – Reliability

In N.C. R. Evid. 702(a1)(2), the General Assembly clearly indicated that “Drug Recognition” evidence – given by an officer who has received training in drug recognition and who holds a certification as a Drug Recognition Expert issued by the Department of Health and Human Services – be admitted and that this type of evidence has already been determined to be reliable and based on sufficient facts and data. Therefore, the trial court properly admitted the testimony of Asheville Police Officer Scott Fry, a certified Drug Recognition Expert, that defendant was under the influence of drugs and that the central nervous system depressant alprazolam was in her system.

We find no error in defendant’s conviction of driving while impaired.

State v. Fincher (Lawyers Weekly No. 011-136-18, 9 pp.) (Wanda Bryant, J.) Appealed from Buncombe County Superior Court (Alan Thornburg, J.) Tammera Hill for the state; Sean Vitrano for defendant. N.C. App.

Criminal Practice

Feds could use artist promo photo for ID array

The government didn’t violate due process by showing a kidnapping victim a photo array with the defendant’s image cropped from his music group’s promotional poster, which the victim had seen before.

United States v. Saint Louis (Lawyers Weekly No. 001-084-18, 21 pp.) (Diaz, J.) No. 17-4199; May 2, 2018; EDVA at Alexandria (O’Grady, J.) Vernida Rochelle Chaney and Nader Hasan for Appellants; Ronald Leonard Walutes Jr. for Appellee. 4th Cir.

Criminal Practice


Forensic search of gun smuggler’s phone reasonable

Although a forensic search of a digital phone is a “non-routine” border search that requires an individualized suspicion of illegal activity, CBP agents had such reasonable suspicion when they seized a suspected weapons smuggler’s phone and extracted communications data and comprehensive GPS location tracking.

United States v. Kolsuz (Lawyers Weekly No. 001-087-18, 37 pp.) (Harris, J.) No. 16-4687; May 9, 2018; from EDVA at Alexandria (Ellis, J.) Todd M. Richman for Appellant; Jeffrey Michael Smith for Appellee; Esha Bhandari for Amici. 4th Cir.

Criminal Practice

Jury & Jurors – Voir Dire – Officer-Involved Shooting – Black Defendant – Stand Your Ground Instructions

In some other case involving a black male defendant and a shooting with police officers, it could very well be proper to allow the defendant to question jurors generally about their opinions and/or biases regarding police officer shootings of (specifically) black men; however, in this case, defendant testified that he did not know until after he had fired shots and sped away that the gun-wielding man he shot at was a police officer. Therefore, defendant was not prejudiced by the trial court’s rulings, which prohibited defense counsel from questioning the jury venire about inherent bias.

We find no prejudicial error in defendant’s convictions of two counts of assault with a deadly weapon with the intent to kill (AWDWIK), two counts of possession of a firearm by a convicted felon, nine counts of armed robbery, 10 counts of second-degree kidnapping, and conspiracy to commit armed robbery.

State v. Crump (Lawyers Weekly No. 011-135-18, 24 pp.) (Wanda Bryant, J.) Appealed from Mecklenburg County Superior Court (Gregory Hayes, J.) Peter Regulski for the state; Ann Petersen for defendant. N.C. App.

Criminal Practice

Larceny after Breaking & Entering – Doctrine of Recent Possession – Unoccupied House

Where the state failed to prove that plaintiff had exclusive control of the stolen property, the state was not entitled to the presumption of guilt arising from the doctrine of recent possession.

We vacate defendant’s convictions of felonious breaking and entering and larceny after breaking and entering.

State v. McDaniel (Lawyers Weekly No. 011-175-18, 29 pp.) (Linda McGee, C.J.) (John Tyson, J., dissenting) Appealed from McDowell County Superior Court (J. Thomas Davis, J.) Deborah Greene for the state; Gilda Rodriguez for defendant. N.C. App.

Criminal Practice

Murder – Constitutional – Confrontation Clause – Prior Domestic Disturbance

At defendant’s trial for killing his estranged wife, the trial court allowed a police officer to testify about a conversation he had with the victim after she called to report a prior domestic disturbance. Since that conversation took place outside the victim’s apartment soon after the disturbance and led the officer to search and “clear” the apartment to make sure defendant was not still there, the victim’s statements to the officer were nontestimonial in nature, and officer’s testimony about them did not violate defendant’s right to confront the witnesses against him.

We reverse the Court of Appeals’ ruling on the confrontation right issue and remand for consideration of defendant’s other contentions.

State v. Marvin Everette Miller Jr. (Lawyers Weekly No. 010-057-18, 18 pp.) (Sam Ervin IV) Appealed from Guilford County Superior Court (Edwin Wilson Jr., J.) On discretionary review from the Court of Appeals. David Adinolfi II for the state; Mark Montgomery for defendant. N.C. S. Ct.

Criminal Practice

Murder – Constitutional – Right to Counsel – Body Location

Defendant was not deprived of his right to counsel when his attorneys – with defendant’s consent but without divulging the source of the information – told police where to look for the child victim. Counsel did so with a view towards securing life in prison, rather than the death penalty, for their client, and the state did make such an offer, though defendant refused the offer in favor of proceeding to trial.

We find no error in defendant’s conviction for first-degree murder or in the sentence of death.

State v. McNeill (Lawyers Weekly No. 010-053-18, 100 pp.) (Robin Hudson, J.) Appealed from Cumberland County Superior Court (Floyd Ammons Jr., J.) Anne Middleton and Derrick Mertz for the state; Glenn Gerding, Andrew DeSimone, Benjamin Dowling-Sendor, and Daniel Shatz for defendant-appellant. N.C. S. Ct.

Criminal Practice

Murder – Jury Instructions – Self-Defense & Stand Your Ground

According to defendant’s evidence, Quinton Epps shot defendant’s cousin and then pointed his gun at defendant. When defendant shot Epps, defendant was in a place where he had a right to be – a public street – so he was entitled to a jury instruction not only on self-defense, but also on the stand-your-ground law.

We reverse the Court of Appeals’ decision, which upheld the trial court’s failure to give the stand-your-ground instruction.

State v. Lee (Lawyers Weekly No. 010-034-18, 18 pp.) (Paul Newby, J.) (Mark Martin, C.J., concurring) Appealed from Pasquotank County Superior Court (J. Carlton Cole, J.) Amy Kunstling Irene for the state; Paul Green for defendant; Camden Webb and Ilya Shapiro for amicus curiae. N.C. S. Ct.

Criminal Practice

New test established to invoke sentencing relief

An appellant seeking habeas relief under 28 U.S.C. § 2255 satisfied the requirements of the law’s savings clause because a retroactive change in 4th Circuit law – occurring after the time for direct appeal and the filing of his first § 2255 motion – rendered his applicable mandatory minimum unduly increased, resulting in a fundamental defect in his sentence.

United States v. Wheeler (Lawyers Weekly No. 001-058-18, 34 pp.) (Thacker, J.) No. 16-6073; Mar. 28, 2018; WDNC at Charlotte (Conrad, J.) Ann Loraine Hester for Appellant; Eric J. Feigin for Appellee. 4th Cir.

Criminal Practice

Rape Shield Law – Victim’s STDs – Exception

The trial court should have admitted a medical expert’s proffered evidence that the child victim had two STDs, while defendant did not have the STDs, making it unlikely that the two engaged in unprotected sex for several years, as the victim testified.

We reverse the Court of Appeals’ decision upholding the trial court’s exclusion of the defense expert’s report.

State v. Jacobs (Lawyers Weekly No. 010-036-18, 15 pp.) (Barbara Jackson, J.) (Michael Morgan, J., dissenting) Appealed from Bladen County Superior Court (Reuben Young, J.) Elizabeth Weese for the state; Paul Herzog for defendant; Anne Bleyman and Christopher Heaney for amicus curiae. N.C. S. Ct.

Criminal Practice

Search & Seizure – First Impression – Plain Error Review – Traffic Stop

Where defendant waited until his appeal to raise issues of alleged Fourth Amendment violations, there is not a sufficient evidentiary record upon which our appellate courts can conduct plain error review. Therefore, defendant has waived those issues.

We reverse the Court of Appeals’ ruling that defendant’s Fourth Amendment rights were violated by an extended traffic stop. We remand for the Court of Appeals to consider defendant’s claim of ineffective assistance of counsel.

State v. Juan Antonia Miller (Lawyers Weekly No. 010-054-18, 11 pp.) (Mark Martin, C.J.) Appealed from Guilford County Superior Court (Eric Morgan, J.) On discretionary review from the Court of Appeals. Derrick Mertz and John Batherson for the state; Jason Christopher Yoder for defendant; Ian Mance and Ivy Johnson for amicus curiae. N.C. S. Ct.

Criminal Practice

Search & Seizure – Knock & Talk – Back Door – Evidence Suppression

Even though an investigator had watched his informant use the back door of an apartment all three times the informant bought heroin at the apartment, law enforcement officers were required to use the clearly visible and unobstructed front door – rather than the less visible back door – when they conducted a “knock and talk” in their attempt to find the heroin seller.

We reverse the trial court’s denial of defendant’s motion to suppress the fruits of the search of his person.

State v. Stanley (Lawyers Weekly No. 011-178-18, 16 pp) (Mark Davis, J.) Appealed from Durham County Superior Court (Beecher Gray, J.) Martin McCracken for the state; Paul Smith for defendant. N.C. App.

Criminal Practice

Search & Seizure – Presumed Seizure – Motion to Suppress – Objectively Suspicious Circumstances

Given the objectively suspicious circumstances of a police lieutenant’s encounter with defendant and another man, who turned out to be defendant’s robbery victim, the lieutenant had reasonable suspicion to extend his seizure of defendant.

We reverse the Court of Appeals’ ruling to the contrary and reinstate defendant’s conviction of common law robbery.

State v. Nicholson (Lawyers Weekly No. 010-059-18, 15 pp.) (Robin Hudson, J.) Appealed from Forsyth County Superior Court (John Craig III, J.) John Green Jr. for the state; Narendra Ghosh for defendant. N.C. S. Ct.

Criminal Practice

Search & Seizure – Reliable Informant – Middleman’s Drug Buys

Where a reliable confidential informant gave money to a middleman, who took the money into defendant’s house, came out of the house, and provided drugs to the informant, a police detective’s affidavit to that effect was sufficient to support a search warrant for defendant’s house.

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

State v. Frederick (Lawyers Weekly No. 011-137-18, 23 pp.) (Philip Berger Jr., J.) (Valerie Zachary, J., dissenting) Appealed from Wake County Superior Court (W. Osmond Smith III, J.) J. Aldean Webster III for the state; Amanda Hitchcock for defendant. N.C. App.

Criminal Practice

Search & Seizure – SBM – Insufficient Showing

As a recidivist sex offender, defendant’s expectation of privacy is appreciably diminished as compared to law-abiding citizens. However, the state failed to present any evidence of its need to monitor defendant or the procedures actually used to conduct such monitoring in unsupervised cases like defendant’s. Therefore, the state failed to prove, by a preponderance of the evidence, that lifetime satellite-based monitoring of defendant is a reasonable search under the Fourth Amendment.

We reverse the trial court’s order determining that satellite-based monitoring (SBM) of defendant is a reasonable search under the Fourth Amendment.

State v. Grady (Lawyers Weekly No. 011-174-18, 30 pp.) (Ann Marie Calabria, J.) (Wanda Bryant, J., dissenting) Appealed from New Hanover County Superior Court (Phyllis Gorham, J.) Joseph Finarelli for the state; Glenn Gerding and Lewis Everett for defendant. N.C. App.

Criminal Practice

Sentencing – Marijuana Possession – Second Conviction – Habitual Felon

Where defendant had previously been convicted of a marijuana possession offense, and where he had attained the status of a habitual felon, his current marijuana possession conviction – normally punishable as a Class 1 misdemeanor – is punishable as a Class E felony. G.S. § 90-95 does not merely increase the punishment for a subsequent offense; instead, it raises the Class 1 misdemeanor to a Class I felony (before the habitual felon increase to a Class E felony in this case).

We reverse the Court of Appeals’ ruling that defendant’s habitual felon status could not be used to further enhance a sentence that was not itself a substantive offense.

State v. Howell (Lawyers Weekly No. 010-035-18, 21 pp.) (Michael Morgan, J.) (Cheri Beasley, J., dissenting) Appealed from Transylvania County Superior Court (Mark Powell, J.) Tracy Nayer for the state; Edward Eldred for defendant. On discretionary review from the Court of Appeals. N.C. S. Ct.

Criminal Practice

Ship owners liable for efforts to hide sludge discharge

Two Greek entities were vicariously liable for violations of international maritime-pollution laws by their cargo vessel’s crewmembers, as well as for the crewmembers attempts to conceal those violations.

United States v. Oceanic Illsabe Ltd. (Lawyers Weekly No. 001-080-18, 50 pp.) (King, J.) No. 17-4061; May 7, 2018; from EDNC at Wilmington (Howard, J.) George Michael Chalos for Appellant; Emily Anne Polacheck for Appellee. 4th Cir.

Domestic Relations

Adoption – Father’s Consent – Unnecessary – Financial Support

In order to prove that his consent is required for an adoption, G.S. § 48-3-601 requires a putative father to demonstrate that he has made consistent payments for the support of the biological mother, the minor child, or both. To establish that his payments are consistent, the putative father must present an objectively verifiable record showing that he consistently made reasonable payments before the adoption petition was filed. The respondent-birth father, who put varying amounts cash in a “lockbox” when he could afford to, has not done so in this case.

We reverse the Court of Appeals’ decision, which upheld the trial court’s determination that the birth father’s consent was required for the adoption of his child.

In re Adoption of C.H.M. (Lawyers Weekly No. 010-040-18, 36 pp.) (Paul Newby, J.) (Cheri Beasley, J., joined by Robin Hudson & Michael Morgan, JJ., dissenting) Appealed from Wake County District Court (Debra Sasser, J.) On discretionary review from the Court of Appeals. Michael Harrell for petitioners; Travis Taylor and Robert Smith for respondent. N.C. S. Ct.

Domestic Relations

Child Custody – Grandparent-Custodians – Removal from Action – Insufficient Findings

The respondent-grandparents were awarded custody of their grandchildren, “Jonah” and “Zeke.” Consequently, the parents’ subsequent relinquishment of their parental rights to Jonah and Zeke didn’t automatically warrant the dismissal of the grandparents from the G.S. Chapter 7B proceedings concerning the children.

We reverse the order removing the grandparents from the juvenile proceeding and remand for further consideration.

In re J.R.S. (Lawyers Weekly No. 011-116-18, 8 pp.) (Chris Dillon, J.) Appealed from Stanly County District Court (John Nance, J.) Jacqueline De Santis for petitioner; Mark Hayes for the respondent-grandmother; Jeffrey William Gillette for the respondent-grandfather; Leah D’Aurora Richardson for the guardian ad litem. N.C. App.

Domestic Relations

Child Support – Sua Sponte Modification – Custody – Autism Protocols – Contempt

Where there was neither a motion to modify child support nor any evidence presented about that issue, the trial court should not have modified defendant’s child support obligation sua sponte.

We affirm the trial court’s custody modification and attorneys’ fee award. We vacate the child support modification and dismiss defendant’s appeal of the order finding him in criminal contempt.

Summerville v. Summerville (Lawyers Weekly No. 011-141-18, 30 pp.) (Mark Davis, J.) Appealed from Chatham County District Court (Lunsford Long, J.) Rebecca Watts for plaintiff; Gray Ellis and Jillian Mack for defendant. N.C. App.

Domestic Relations

Civil Practice – Interlocutory Appeals – Attorney’s Fee Award – Existing Record

The trial court’s award of attorney’s fees to the defendant-mother effectively disposes of the claim for attorney’s fees as they relate to the already-decided issues of child support, child custody, and post-separation support. To delay the plaintiff-father’s appeal until a final determination on the merits of the parties remaining claims for equitable distribution would jeopardize plaintiff’s substantial right not only because it is an order which completely disposes of one of several issues in a lawsuit, but also because it orders plaintiff to pay a not insignificant amount — $48,188.15 – in attorney’s fees.

We decline to dismiss this appeal. We affirm the trial court’s award of attorney’s fees to defendant.

Beasley v. Beasley (Lawyers Weekly No. 011-182-18, 32 pp.) (Wanda Bryant, J.) (Philip Berger Jr., J., concurring in the result only without separate opinion) (Hunter Murphy, J., dissenting) Appealed from Forsyth County District Court (Lisa Menefee, J.) Brian Jones for plaintiff; Ruth Bradshaw for defendant. N.C. App.

Domestic Relations

Parent & Child – Civil Practice – Subject Matter Jurisdiction – Neglected Child

After moving herself and her infant from county to county, including Mecklenburg County, the respondent-mother was living in Cabarrus County, and her baby was living in Rowan County when the baby’s caretaker contacted the Mecklenburg County Department of Social Services, Youth and Family Division (YFS), to say she could no longer care for the baby.  The Juvenile Code allowed an agent of YFS to file a petition alleging the baby was neglected and dependent.

We reverse the Court of Appeals’ ruling that YFS lacked the authority to file the petition.

In re A.P. (Lawyers Weekly No. 010-048-18, 13 pp.) (Cheri Beasley, J.) Appealed from Mecklenburg County District Court (Ty Hands, J.) On discretionary review from the Court of Appeals. Matthew Wunsche for GAL; Keith Roberson for petitioner; Anné Wright for respondent. N.C. S. Ct.

Domestic Relations

Parent & Child – Custody – Constitutional – Due Process – In-Court Pronouncement & Written Order

At the conclusion of the parties’ custody hearing, the trial court announced that it would give the parties joint physical custody of their child; nevertheless, the trial court was free to make a different ruling in its subsequent written order, giving the defendant-mother primary custody and the plaintiff-father alternating weekend visitation.

We affirm the custody order.

Whitley v. Baugess (Lawyers Weekly No. 012-051-18, 8 pp.) (Chris Dillon, J.) Appealed from Wilkes County District Court (Jeanie Reavis Houston, J.) J. Clark Fischer for plaintiff; no brief filed for defendant. N.C. App. Unpub.

Domestic Relations

Parent & Child – Custody Modification – Child’s Grades – Mother’s Marijuana Use

After the plaintiff-mother and the parties’ child moved first from Michigan (to escape the mother’s abusive boyfriend) to North Carolina and then to Florida, the child’s grades fell; therefore, the change in circumstances affected the child.

We affirm the trial court’s modification of the parties’ consent custody order so as to place the child, “Natalie,” in the primary custody of the defendant-father.

Atkinson v. Chamberlin-Spencer (Lawyers Weekly No. 012-041-18, 12 pp.) (Lucy Inman, J.) Appealed from Cabarrus County District Court (Nathaniel Knust, J.) Seth Weinshenker for plaintiff; no brief filed for defendant. N.C. App. Unpub.

Domestic Relations

Parent & Child – Custody – Shared to Primary Custody – Expert Witness

In its permanent custody order, the trial court changed the parties’ temporary week on/week off custody arrangement to one in which the defendant-father gets visitation only every other weekend during the school year. The findings of fact fail to demonstrate why it would be in the child’s best interest to be “in one place during the school year,” particularly when the child had done well with an equal shared custody arrangement while attending school.

We affirm the trial court’s ruling as to the father’s expert witness but vacate and remand the custody ruling.

Dyer v. Roten (Lawyers Weekly No. 012-059-18, 10 pp.) (Valerie Zachary, J.) Appealed from Ashe County District Court (Jeanie Houston, J.) No brief filed for plaintiff; Aaron Young for defendant. N.C. App. Unpub.

Domestic Relations

Parent & Child – Support – Parents’ Income – Capital Gains & Dividends

Even though the defendant-mother had significant income from capital gains during the two years prior to the child support hearing, since capital gains are a highly variable type of income, they can only be used to calculate current, regular income if (1) the parent still owns additional capital assets of like kind sufficient to continue generating similar gains and (2) the parent reasonably can be expected to continue realizing similar gains given past behavior and current market conditions.

We vacate the trial court’s child support order and remand for further proceedings.

Kaiser v. Kaiser (Lawyers Weekly No. 011-165-18, 19 pp.) (Richard Dietz, J.) Appealed from New Hanover County District Court (Jeffrey Evan Noecker, J.) Tobias Hampson for plaintiff; Steven Epstein and Andrew Erteschik for defendant. N.C. App.


Civil Practice – Standing – Advertisement Disclosures – Winning Opponent

In the “Disclosure Statute,” the General Assembly gave political candidates standing to sue for statutory damages when a political action committee ran a television advertisement without making the required disclosures. Even though plaintiff’s candidate won the election in question, plaintiff has standing to sue defendant for its violation of the statute.

We reverse the trial court’s grant of summary judgment for defendant and remand for further proceedings.

Committee to Elect Dan Forest v. Employees Political Action Committee (Lawyers Weekly No. 011-210-18, 40 pp.) (Chris Dillon, J.) (Linda McGee, C.J., dissenting) Appealed from Wake County Superior Court (Allen Baddour, J.) David Walker for plaintiff; C. Amanda Martin for defendant. N.C. App.


Pleading standard clarified for CWA discharge claims

On an issue of first impression in this circuit, plaintiffs in citizen suits under the Clean Water Act must allege a “direct hydrological connection” between ground water and navigable waters in order to state a claim for a discharge of a pollutant that passes through ground water.

Upstate Forever v. Kinder Morgan Energy Partners LP (Lawyers Weekly No. 001-067-18, 49 pp.) (Keenan, J.) No. 17-1640; Apr. 12, 2018; from DSC at Anderson (Herlong, J.) 4th Cir.


Board didn’t explain change in deportation standard

A Board of Immigration Appeals decision effectively adopting a new standard for “crimes involving moral turpitude” could not rely on the new standard without offering good reasons for the change and addressing its retroactive effect.

Jimenez-Cedillo v. Sessions (Lawyers Weekly No. 001-061-18, 15 pp.) (Harris, J.) Nos. 17-1477 and 17-1893; Mar. 20, 2018; appealed from the BIA. Benjamin Winograd for Petitioner; Karen L. Melnik for Respondent. 4th Cir.


Exclusionary rule applies only after egregious conduct

In civil deportation proceedings, the exclusionary rule’s predicate of “egregious” – not merely unreasonable – Fourth Amendment violations by federal officers also applies to conduct by state and local officers.

Sanchez v. Sessions (Lawyers Weekly No. 001-060-18, 22 pp.) (Motz, J.) No. 16-2330; Mar. 27, 2018; appealed from the BIA. Barry Dalin for Petitioner; Kohsei Ugumori for Respondent. 4th Cir.


State drug convictions defeated court’s jurisdiction

An immigrant’s conviction for unlawful possession of marijuana with intent to manufacture, deliver, or sell constitutes a conviction of both an aggravated felony and a crime involving moral turpitude. Therefore, the court lacks jurisdiction to review the Board’s rulings on his removal order. The petitioner also was not eligible for cancellation of removal.

Guevara-Solorzano v. Sessions (Lawyers Weekly No. 001-093-18, 22 pp.) (Brinkema, J.) No. 16-2434; May 24, 2018; from BIA. Jeremy Layne McKinney for Petitioner; Andrew Nathan O’Malley, for Respondent. 4th Cir.


USCIS could disregard custody order lacking factual basis

It was not arbitrary or capricious for U.S. Citizenship and Immigration Services to reject special immigrant juvenile status for Salvadoran girl on the basis of a state court order that lacked a factual basis for permanent custody with her father in the U.S.

Reyes v. Cissna (Lawyers Weekly No. 006-008-18, 13 pp.) (Per Curiam) No. 17-7304; June 8, 2018; from WDNC at Charlotte (Whitney, J.) Bradley Bruce Banias for Appellant; Brian Christopher Ward for Appellee. 4th Cir. Unpub.


Auto – UIM – Setoff – Multiple Policies – ‘Excess Coverage’

Where (1) defendant William Creed fell asleep at the wheel of passenger/plaintiff Theodore Creed’s car, crashed into a tree, and caused serious injuries to Theodore; (2) William’s two liability policies each paid $100,000 to Theodore; and (3) defendant Nationwide Property and Casualty Insurance Co. tendered $100,000 to Theodore in liability coverage under one of Theodore’s three separate policies with Nationwide, each of which also provided $100,000 in UIM coverage, then, as the primary UIM carrier, Nationwide is entitled to an offset credit for all liability payments.

We reverse summary judgment for Theodore and remand for entry of summary judgment for Nationwide.

Creed v. Creed (Lawyers Weekly No. 012-042-18, 11 pp.) (Hunter Murphy, J.) Appealed from Mecklenburg County Superior Court (Daniel Kuehnert, J.) Andrew Schwaba for plaintiff; William Robinson and Dorothy Gooding for defendant. N.C. App. Unpub.


Auto – UIM Stacking – Multiple Claimant Exception – Inapplicable

The court rejects an insurer’s interpretation of the multiple claimant exception in G.S. § § 20-279.21(b)(4) because it would limit recovery by innocent passengers depending on whether they were riding with a negligent driver or an innocent driver.

We affirm the trial court’s order granting summary judgment for defendants.

Nationwide Affinity Insurance Co. of America v. Bei (Lawyers Weekly No. 011-171-18, 16 pp.) (Robert Hunter Jr., J.) (Richard Dietz, J., concurring) Appealed from Wake County Superior Court (A. Graham Shirley II, J.) George Simpson IV for plaintiff; Paul Tharp for defendants. N.C. App.


Insurers owed no duty to solicit supporting documents

A life insurance company was under no fiduciary duty to solicit required additional materials from the insured party in order to approve his coverage level, even though his employer had been deducting insurance premiums for the unapproved amount.

Gordon v. Cigna Corp. (Lawyers Weekly No. 001-086-18, 30 pp.) (Wynn, J.) No. 17-1188; May 15, 2018; from DMD at Greenbelt (Titus, J.) Jonathan Tycko for Appellant; Christopher Joseph Boran for Appellee. 4th Cir.

Intellectual Property

Preponderance standard governs Lanham Act fees

As in the Patent Act, a party prevailing on a Lanham Act claim need only prove an “exceptional” case meriting a fee award by a preponderance of the evidence. And no showing of bad faith is required.

Verisign Inc. v. LLC (Lawyers Weekly No. 001-090-18, 16 pp.) (Floyd, J.) No. 17-1704; May 29, 2018; from EDVA at Alexandria (Hilton, J.) Derek Newman for Appellants; Randall Karl Miller for Appellee. 4th Cir.


Discipline – Public Reprimand – Delayed Ruling

The respondent-judge, who otherwise has an exemplary record and excellent reputation, failed to issue a ruling for more than two years and three months after the last day of the hearing on the matter in question; such delay was without justification and occurred notwithstanding multiple requests to issue a ruling from the parties, the attorneys and respondent’s chief judge. Further, respondent concedes that there was no excuse for the delay other than his “dread” of the case.

Respondent violated several judicial canons and is hereby publicly reprimanded.

In re Judge Henderson (Lawyers Weekly No. 010-050-18, 10 pp.) (Michael Morgan, J., for the court) Upon recommendation by the Judicial Standards Commission. N.C. S. Ct.

Labor & Employment

Employer not liable for supervisor’s crude comments

A plaintiff claiming that her supervisor defamed her with crude comments at work could not hold their employer vicariously liable for the statements. The comments were outside the scope of employment, and the district court lacked any indication that this defect could be cured by an amended pleading.

Garnett v. Remedi Seniorcare of Va. LLC (Lawyers Weekly No. 001-100-18, 13 pp.) (Wilkinson, J.) No. 17-1890; June 11, 2018; from EDVA at Richmond (Hudson, J.) Richard F. Hawkins III for Appellant; Elena D. Marcuss for Appellee. 4th Cir.

Labor & Employment

Public Employees – Resignation – ‘Appointing Authority’ – First Impression

Even if the petitioner-correctional officer did tell his unit manager, “I quit” – which he denies – since the unit manager lacked the authority to make hiring and firing decisions as to employees at the prison, she was not an “appointing authority” under 25 N.C.A.C. 1C.1002, and she had no legal authority to accept petitioner’s resignation.

We affirm the administrative law judge’s order of reinstatement and award of attorney’s fees.

Hunt v. N.C. Department of Public Safety (Lawyers Weekly No. 011-202-18, 22 pp.) (Mark Davis, J.) Appealed from the Office of Administrative Hearings (Melissa Owens Lassiter, ALJ) Michael Byrne for petitioner; Tamika Henderson for respondent. N.C. App.


Commercial Lease – Attorneys’ Fees – Guarantors – Liquidated Damages

Even though the reciprocal attorneys’ fee statute, G.S. § 6-21.6, only went into effect on Oct. 1, 2011, since defendants signed their lease – which includes a reciprocal attorney’s fee provision – and guaranty on Oct. 3, 2011, and plaintiffs‘ manager signed the lease on Oct. 26, 2011, the lease is subject to § 6-21.6.

Even before § 6-21.6 was enacted, we held that an unconditional guaranty could subject a guarantor to liability for attorneys’ fees. Although the guaranty in this case does not, on its own, satisfy the requirements of § 6-21.6, it did cover “each and every obligation” in the lease including “all reasonable attorneys’ fees . . . caused by any . . . default”; therefore, the guaranty subjects the guarantors to liability for attorneys’ fees.

We remand for further factual findings as to the amount of attorneys’ fees. Otherwise, we affirm summary judgment for the plaintiff-landlords.

WFC Lynnwood I LLC v. Lee of Raleigh, Inc. (Lawyers Weekly No. 011-199-18, 18 pp.) (Ann Marie Calabria, J.) (Mark Davis, J., concurring in part & dissenting in part) Appealed from Wake County Superior Court (R. Allen Baddour Jr., J.) Eric Snider and Elizabeth Brooks Scherer for plaintiff; Nelson Harris for defendants. N.C. App.


Public Utilities – Water & Sewer Impact Fees – Civil Practice – Statute of Limitations

The plaintiff-developers’ injury arose when they paid the water and sewer impact fees imposed by the defendant-town, not when the town adopted the ordinance requiring payment of the fees. Therefore, plaintiffs’ claims arose between May 1, 2006 and June 30, 2009.

Where plaintiffs’ claims rest upon an alleged statutory violation that resulted in the exaction of an unlawful payment which plaintiffs had an inherent right to recoup, the three-year statute of limitations in G.S. § 1-52(2) (applicable to “a liability created by statute”) applies to their claims. Since plaintiffs did not file their complaint until Oct. 28, 2013, their claims are time-barred.

We reverse the Court of Appeals’ holding that the 10-year statute of limitations in G.S. § 1-56 applies. Because plaintiffs do not appear to have received any benefit from the payment of the impact fees that they would not otherwise have been entitled to receive, we affirm the Court of Appeals’ conclusion that plaintiffs’ claims are not barred by the doctrine of estoppel by the acceptance of benefits. Remanded to the Court of Appeals for further remand to the superior court for further proceedings.

Quality Built Homes Inc. v. Town of Carthage (Lawyers Weekly No. 010-051-18, 25 pp.) (Sam Ervin IV, J.) Appealed from Moore County (James Webb, J.) On discretionary review from the Court of Appeals. James DeMay, John Scarbrough, Madeline Trilling and James Scarbrough for plaintiffs; Susan Burkhart for defendant. Stephen Feldman, Steven Scoggan, Paul Cox, F. Paul Calamita, J. Daniel Bishop and Joseph Moss Jr. for amici curiae. N.C. S. Ct.

Real Property

Adverse Possession – No Tacking – Corporate – Ultra Vires – Easement

Even though plaintiffs’ predecessor in title adversely possessed the land between his lot and the Calabash River, since the predecessor’s deed to plaintiffs did not include the land between the lot and the river, plaintiffs may not tack the predecessor’s period of adverse possession onto their own 15 years of adverse possession so as to reach the 20-year period required for adverse possession not under color of law.

We affirm summary judgment for the defendant homeowners’ association as to the issues of adverse possession and the transfer of the riverfront property, but we reverse the trial court’s grant of an easement over plaintiffs’ property in favor of the homeowners’ association.

Cole v. Bonaparte’s Retreat Property Owners’ Association, Inc. (Lawyers Weekly No. 011-127-18, 26 pp.) (Lucy Inman, J.) Appealed from Brunswick County Superior Court (Ola Lewis, J.) Bradley Coxe for plaintiffs’ John Coble for defendants. N.C. App.

Real Property

Condemnation – Map Act – Interest Rate – Statutory Amendment – Constitutional

In a condemnation case, interest is a component of just compensation. There is no conceivable reason why, on July 11, 2016, the General Assembly lowered the interest calculation only for condemnation actions filed after July 11, 2016, other than to solely benefit the North Carolina Department of Transportation. This change is arbitrary and capricious and causes disparate treatment among similarly situated landowners without demonstrating a rational relationship to a legitimate government goal.

House Bill 959’s change in the presumptive interest rate in G.S. § 136-113 and the imposition of a cap on the rates at eight percent is unconstitutional as applied to the Map Act cases filed to date and to those filed hereafter. All plaintiffs in the Map Act cases whose property was taken in October 1997 or November 2008 are entitled to no less than eight percent interest on the amount of just compensation ultimately proven at trial from the respective date of taking.

Abdellmelk v. North Carolina Department of Transportation (Lawyers Weekly No. 021-001-18, 11 pp.) (John Craig III, J.) Forsyth County Superior Court.

Real Property

Condominium Association – Flood Insurance

Reading G.S. § 47C-3-113 and the parties’ condominium declaration together, the court concludes that the condominium property owners’ association is required to buy flood insurance for its buildings that lie in a flood plain when such insurance is reasonably available.

We reverse summary judgment for the association and remand for further proceedings.

Porter v. Beaverdam Run Condominium Association (Lawyers Weekly No. 011-148-18, 12 pp.) (Chris Dillon, J.) Appealed from Buncombe County Superior Court (Alan Thornburg, J.) E. Thomison Holman for plaintiffs; John Ong for defendant. N.C. App.

Real Property

Mortgages – Foreclosure Sale – Borrowers’ Cure – Return of Bid

After respondent placed the high bid at a power-of-sale foreclosure sale, the borrowers timely cured their default and reinstated their loan. Although the 10-day upset period had elapsed by the time respondent received a return of its deposit, the return of its deposit was all it was entitled to; its rights were not “fixed” at the end of the upset period.

This appeal is dismissed.

In re Menendez (Lawyers Weekly No. 011-181-18, 9 pp.) (Robert Hunter Jr., J.) Appealed from Guilford County Superior Court (Richard Gottlieb, J.) Drew Brown for respondent; Claire Collins, Hilton Hutchins Jr., Renner St. John and R. Robert El-Jaouhari for petitioners. N.C. App.

Real Property

Not all mortgage loans require LPMI disclosures

In a class action against Bank of America for failure to provide information regarding lender-paid mortgage insurance, the district court did not err in concluding that the Plaintiffs’ type of mortgage loans didn’t require such disclosures under the Homeowners Protection Act.

Dwoskin v. Bank of America, N.A. (Lawyers Weekly No. 001-073-18, 10 pp.) (Wilkinson, J.) No. 17-1356; Apr. 19, 2018; from DMD at Baltimore (Blake, J.) James C. White for Appellants; Bradley R. Kutrow for Appellee. 4th Cir.


Fraud & Negligent Misrepresentation – Breach of Contract – Defunct Law School

The court gives defendants’ former law students a chance to amend their complaints to state claims for fraud and negligent misrepresentation arising from defendants’ statements and omissions about the defendant-law school’s conformity with American Bar Association standards.

Defendants’ motions to dismiss are granted in part and denied in part.

Herrera v. Charlotte School of Law, LLC (Lawyers Weekly No. 020-033-18, 45 pp.) (James Gale, C.J.) Gary Jackson, Hoyt Tessener, James Farrin, Christopher Bagley, Sidney Fligel, and Lawrence Serbin for plaintiffs; Debbie Harden, Johnny Loper, Sarah Stone, David Mills and Michael Hays for defendants. 2018 NCBC 34


Medical Malpractice – Expert Testimony – Causation – Brain Surgery

According to plaintiff, the defendant-neuropathologist mistakenly reported that specimen samples from plaintiff’s brain were a glioma and a glioblastoma, leading plaintiff’s neurosurgeon to remove plaintiff’s left inferior temporal lobe. Although plaintiff put on an expert in neuropathology, he failed to put on an expert in neurosurgery or neurooncology; consequently, plaintiff failed to prove causation.

We affirm the trial court’s grant of a directed verdict for defendants.

Grodensky v. McLendon (Lawyers Weekly No. 012-060-18, 9 pp.) (Ann Marie Calabria, J.) Appealed from Durham County Superior Court (Rebecca Holt, J.) Robert Mann, Fred Smith Jr. and Jeremy Ross Swindlehurst for plaintiff; Mark Anderson, Joan Dinsmore and Jacob Charles for defendants. N.C. App. Unpub.


Medical Malpractice – Expert Witness – Specialty – Practice

Even though plaintiff’s expert practices in a clinical setting 10 months out of the year and in a hospital setting two months out of the year while the defendant-hospital’s doctors (the hospitalists) practice solely in a hospital, since both plaintiff’s expert and the hospitalists practice in the overall management and care of a patient, plaintiff’s expert’s qualification is not determined by the fact that he does not solely practice in a hospital setting.

We reverse the trial court’s disqualification of plaintiff’s expert, vacate its grant of summary judgment for defendants, and remand.

Da Silva v. WakeMed (Lawyers Weekly No. 012-053-18, 24 pp.) (Robert Hunter Jr., J.) Appealed from Wake County Superior Court (Robert Hobgood, J.) Gregory Kash for plaintiff; John Madden and Eva Gullick Frongello for defendants. N.C. App. Unpub.


Medical Malpractice – Res Ipsa Loquitur – Burn during Surgery – Expert Testimony Required

Where plaintiff alleges that she suffered a third-degree burn to her lower back during heart surgery, she will need expert testimony to prove her claim of medical malpractice. As a result, she cannot base her claim on the doctrine of res ipsa loquitur and was required to – but did not – comply with the certification requirements of N.C. R. Civ. P. 9(j).

We affirm the trial court’s dismissal of plaintiff’s complaint.

Bluitt v. Wake Forest University Baptist Medical Center (Lawyers Weekly No. 011-124-18, 10 pp.) (John Arrowood, J.) Appealed from Forsyth County Superior Court (Richard Gottlieb, J.) Java Warren and Christopher Allen White for plaintiff; Kip Nelson, D. Clark Smith Jr. and Joshua Harper for defendants. N.C. App.


Medical Malpractice – Sepsis – Later Clinical Studies – Nursing Claims

Even though the three clinical studies presented by defendants were published four and five years after plaintiff’s treatment, since the studies show that the results of “standard treatment” and the treatment method proposed by plaintiff are about the same, the studies were relevant.

We affirm the trial court’s admission into evidence of the three clinical studies and its dismissal of plaintiff’s nursing claim.

Ingram v. Henderson County Hospital Corp. (Lawyers Weekly No. 011-145-18, 38 pp.) (Donna Stroud, J.) Appealed from Henderson County Superior Court (Martin McGee & Mark Powell, JJ.) James Ferguson II for plaintiff; Ann-Patton Hornthal, Phillip Jackson, Emma Hodson, and Isaac Northup Jr. for defendants. N.C. App.


Misappropriation of Trade Secrets – First Impression – Insufficient Allegations

The complaint’s description of plaintiffs’ trade secrets only as their “original ideas and concepts for dance productions, marketing strategies and tactics, as well as student, client and customer lists and their contact information” is insufficiently particular so as to enable defendants to delineate that which they are accused of misappropriating and the court to determine whether misappropriation has or is threatened to occur. In addition, the complaint fails to allege any method, plan, or other act by which plaintiffs attempted to maintain the secrecy of the alleged trade secrets.

We modify and affirm the Business Court’s dismissal of plaintiffs’ claims for tortious interference with contract, misappropriation of trade secrets, unfair trade practices, civil conspiracy, and unjust enrichment. Remanded.

Krawiec v. Manly (Lawyers Weekly No. 010-033-18, 33 pp.) (Barbara Jackson, J.) Cheri Beasley, J., dissenting) Appealed from Mecklenburg County Superior Court (Louis Bledsoe III, J.) Erin Blackwell and Nichole Hatcher for plaintiffs; Renner St. John for defendants. N.C. S. Ct.


Real Property – Banks & Banking – Contract – Construction Loan – Appraisal

The plaintiff-borrower alleges that the defendant-bank was negligent in failing to discover and inform him that the appraisal of the house he planned to build was inflated; however, plaintiff has not sufficiently alleged that he justifiably relied on the appraisal obtained by the bank. The complaint fails to allege either that plaintiff engaged in any independent inquiry as to the validity of the appraisal or that he was prevented from doing so.

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

Cordaro v. Harrington Bank, FSB (Lawyers Weekly No. 011-201-18, 23 pp.) (Mark Davis, J.) Appealed from Chatham County Superior Court (Lindsay Davis Jr., J.) Mark Sigmon for plaintiff; S. Wilson Quick and Reid Phillips for defendant. N.C. App.


Statistical significance analysis must be reliable

Experts’ calculation and application of statistical significance (p-values) must be relevant, reliable, and not likely to confuse jurors. After plaintiffs’ expert opinions were excluded, their non-expert evidence was not sufficient to survive summary judgment, and the district court appropriately granted it against all plaintiffs in the multidistrict litigation.

In re: Lipitor Marketing, Sales Practices & Prod. Liability (No II) Litigation MDL 2502 (Lawyers Weekly No. 001-107-18, 46 pp.) (Diaz, J.) No. 17-1140; June 12, 2018; from DSC at Charleston (Gergel, J.) Derek T. Ho for Appellants; Mark Cheffo for Appellees. 4th Cir.

Trusts & Estates

Wills – Prenuptial Agreement – Elective Share – Waiver

Even though, in the parties’ pre-marital agreement, they did not explicitly waive an elective share in each other’s estates, since the agreement gave each party the right to manage his/her respective separate property as if they were unmarried, and since each party waived any claim to the other’s separate property, the only logical reading of the entire agreement is that the parties waived the spouse’s elective share provided for in G.S. § 30-3.1.

We affirm the superior court’s ruling in favor of the husband’s executors.

In re Estate of Sharpe (Lawyers Weekly No. 011-115-18, 16 pp.) (John Tyson, J.) Appealed from Alamance County Superior Court (G. Wayne Abernathy, J.) W. Phillip Moseley and Peter Blaetz for petitioner; Geoffrey Oertel for respondent. N.C. App.

Workers’ Compensation

‘Injury’ – Propane Exposure – Normal or Imagined

Where plaintiff regularly encountered propane leaks in his employment as a clamp truck operator, a perceived exposure to propane was not an unusual or unexpected event and thus was not an “accident” under the Workers’ Compensation Act.

We affirm the Industrial Commission’s denial of benefits.

Chase v. Greif Inc. (Lawyers Weekly No. 012-052-18, 11 pp.) (Valerie Zachary, J.) Appealed from the Industrial Commission. John Ayers III and Christian Ayers for plaintiff; Kara Glidewell for defendant. N.C. App. Unpub.

Workers’ Compensation

Medical Expenses – Non-FDA-Approved Drug – Pain Relief

Even though the skin cream that plaintiff’s doctors prescribe is not approved by the FDA, since it provides pain relief, the Industrial Commission could require defendants to pay for it.

We affirm the Commission’s award of benefits.

Davis v. Craven County ABC Board (Lawyers Weekly No. 011-128-18, 8 pp.) (Richard Dietz, J.) Appealed from the Industrial Commission. Nicole Hart for plaintiff; Brian Groesser for defendants. N.C. App.

Workers’ Compensation

Sanctions – Statutory Only – Egregious Violations

Despite defendants’ egregious violations of Industrial Commission orders, leading to a decline in plaintiff’s condition, the Commission can only impose the sanctions set out in the Workers’ Compensation Act.

We affirm the Commission’s opinion and award and its denial of plaintiff’s motion for reconsideration.

Kish v. Frye Regional Medical Center (Lawyers Weekly No. 012-076-18, 14 pp.) (John Arrowood, J.) Appealed from the Industrial Commission. William Acton Jr. for plaintiff; John Morris and Daniel O’Shea for defendants. N.C. App. Unpub.


Agritourism Exemption – Shooting Activities & Structures

The statutory definition of agritourism – any activity carried out on a farm or ranch that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, ranching, historic, cultural, harvest-your-own activities, or natural activities and attractions – does not contemplate activities such as shooting ranges.

We affirm the superior court’s order ruling that the intervenor respondents’ shooting activities were not statutorily exempt from countywide zoning.

Jeffries v. County of Harnett (Lawyers Weekly No. 011-164-18, 41 pp.) (Rick Elmore, J.) Appealed from Harnett County Superior Court (C. Winston Gilchrist & Tanya Wallace, JJ.) Gavin Parsons for petitioners; John Walter Bryant and Amber Ivie for intervenor respondents. N.C. App.


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