Most Important Opinions for the 3Q 2018

Administrative

Attorney’s Fees – G.S. § 6-19.1 – Statutory Construction

Even though the respondent-board lacked the authority to discipline petitioner for his inspection of a swimming pool heater, G.S. § 6-19.1 does not authorize an award of attorney’s fees resulting from a disciplinary action by a licensing board.

We reverse the superior court’s award of $29,347 in attorney’s fees to petitioner.

Winkler v. North Carolina State Board of Plumbing, Heating & Fire Sprinkler Contractors (Lawyers Weekly No. 011-262-18, 15 pp.) (Lucy Inman, J.) Appealed from Watauga County Superior Court (Edwin Wilson, J.) Jeffrey Gray for petitioner; Angela Farag Craddock, John Fountain and Reed Fountain for respondent; M. Jackson Nichols, Anna Baird Choi and Janet Thoren for amici curiae. N.C. App.

Arbitration

Ambiguous Clause – Public Policy

Where the parties’ arbitration clause is ambiguous as to arbitrability, we must defer to North Carolina’s strong policy favoring arbitration.

We reverse the trial court’s order, which denied defendant’s motion to compel arbitration, and we remand for entry of an order compelling arbitration.

AVR Davis Raleigh, LLC v. Triangle Construction Co. (Lawyers Weekly No. 011-241-18, 12 pp.) (Ann Marie Calabria, J.) (Hunter Murphy, J., concurring) Appealed from Wake County Superior Court (W. David Lee, J.) William Wilson III for plaintiff; Matthew Nis Leerberg, Bradley Risinger and Robert deHoll for defendant. N.C. App.

Attorneys

Company’s agreement with feds preserved privilege

A written agreement between a corporation and the government preserved the company’s attorney-client privilege and work-product protection for information that the general counsel of a subsidiary entity disclosed to the government.

In re Grand Jury 16-3817 (Lawyers Weekly No. 006-014-18, 13 pp.) (Gregory, J.) No. 17-4183; June 27, 2018; from EDVA at Alexandria (O’Grady, J.) Peter John Romatowski for Appellant; John Alexander Romano for Appellee. 4th Cir. Unpub.

Attorneys

Fees – Breach of Contract – Additional Claims – Common Facts

The winner of a breach of contract claim can recover attorneys’ fees as set out in the contract. The winner can also recover the fees it incurred in successfully pursuing the related claims of breach of fiduciary duty and constructive fraud, as well as its request to pierce the corporate veils of the contracting defendant and the LLC that owns it.

Defendants shall pay plaintiff $917,553.80 in attorneys’ fees and $14,435.15 in costs.

Insight Health Corp. v. Marquis Diagnostic Imaging of North Carolina, LLC (Lawyers Weekly No. 020-044-18, 27 pp.) (Louis Bledsoe III, J.) Marcus Hewitt and Jeffery Whitley for plaintiff; Wyatt Stevens, Ann-Patton Hornthal and John Noor for defendants. 2018 NCBC 66

Attorneys

Fees – Corporate Merger – Class Action Settlement – Disclosure Only – Expenses

Plaintiffs’ class action lawsuits challenging a merger between Krispy Kreme Doughnuts, Inc., and JAB Beech, Inc., resulted in supplemental disclosures to shareholders, and the court finds the materiality of those disclosures to be somewhere between nil and obvious. The court awards plaintiffs’ counsel $150,000 in fees, yielding an implied rate of $300 per hour (after deductions for duplicative and inefficient billings).

However, the court refuses to award fees because plaintiffs’ fee agreements say outright that plaintiffs will not be responsible for fees.

The court awards plaintiffs’ counsel approximately half of the fees and none of the expenses they requested.

In re Krispy Kreme Doughnuts, Inc. Shareholder Litigation (Lawyers Weekly No. 020-034-18, 25 pp.) (James Gale, C.J.) Donald Enright, Janet Black, Nancy Meyers, and Megan Kunz, for plaintiffs; Ronald Davis, Brent Powell, Peter Kazanoff, Craig Waldman, Clifton Brinson, Donald Tucker, Paul Lockwood, Joseph Larkin, and Alyssa  O’Connell for defendants. 2018 NCBC 58

Attorneys

Georgia Lawyer – Unauthorized Practice of Law – Pro Hac Vice Application

The court suspects that a Georgia lawyer engaged in the unauthorized practice of law by ghostwriting the plaintiff-corporation’s proposed pretrial order and its trial brief. The court denies the lawyer’s last-minute application for pro hac vice admission and refers this matter to the Georgia and North Carolina State Bars.

Motion denied and matter referred.

Carolina Home Solutions 1, Inc. v. Crystal Coast Home Solutions, Inc. (Lawyers Weekly No. 020-037-18, 12 pp.) (Louis Bledsoe III, J.) E. Bradley Evans for plaintiff and counterclaim defendant; Jeremy King and Steven Johnson for defendant. 2018 NCBC 57

Attorneys

Qui Tam Action – Relator – Conversations with Co-Workers

In this action under the False Claims Act, the relator’s counsel suggested that the relator take notes about his conversations with co-workers, and relator gave those notes to counsel. The court declines to infer from counsel’s receipt of information and suggestion to take notes that counsel directed or controlled the relator’s underlying interactions.

Defendants Duke University and Duke University Health System, Inc.’s motion for sanctions is denied.

United States ex rel. Thomas v. Duke University (Lawyers Weekly No. 003-010-18, 15 pp.) (Catherine Eagles, J.) 1:17-cv-00276. Alan Kleinburd, Alison Brooke Rousseau, Anthony Paul Giorno, Cheryl Sloan, Kristo Consiglio, Mary Dobbie, Patricia Hanower, Rick Mountcastle and Sara Bugbee Winn for plaintiff; Andrew Bowman, Daniel Sullivan, Glenn Walthall Pulley, Gregory Joseph Haley, John Thomas, Joshua Charles Johnson, Matthew Broughton, Michael Finney, Cynthia Kinser, D. J. O’Brien, Daniel Smith, Jeffrey Sexton and Travis Jarrett Graham for relator; Carol Poindexter, Frederick Robinson, James Cooney, John Benjamin Rottenborn, Megan Engel, Michael Preston Gardner, Rebecca Fleishman, Thomas Cullen, Annette Ebright, Eric Cottrell, Richard Glaser, Thomas Norfleet Griffin, Amos Granger Tyndall and Michelle Merck Walker for defendants; Steven Baker for movant. M.D.N.C.

Attorneys

Sanctions – Rule 11 – Improper Purpose – Attorney-Client Relationship – Increased Costs

The trial court’s findings support its conclusion that this Orange County lawsuit was filed for the improper purpose of driving a wedge between defendants and their attorneys in a previously filed Durham County lawsuit – e.g., by making one of the attorneys a witness in the Orange County lawsuit – and to increase defendants’ costs.

We affirm the trial court’s assessment of $269,054.77 in attorney’s fees and costs against plaintiff and his counsel, jointly and severally.

Moch v. A. M. Pappas & Associates, LLC (Lawyers Weekly No. 012-095-18, 16 pp.) (Lucy Inman, J.) Appealed from Orange County Superior Court (A. Graham Shirley, J.) Eric David, Gary Parsons and Jessica Thaller-Morgan for appellants; Michael Mitchell, Christopher Smith, Clifton Brinson and Wade Smith for appellees. N.C. App. Unpub.

Banks & Banking

Suspicious Transactions – Elderly Customer – UCC – Tort/Negligence

Even if an elderly customer shows signs of mental incompetence, a bank cannot disobey her instructions unless it has knowledge of an adjudication of incompetence.

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

Napoli v. ScottTrade, Inc. (Lawyers Weekly No. 012-087-18, 11 pp.) (Philip Berger Jr., J.) Appealed from Henderson County Superior Court (Alan Thornburg, J.) Cynthia Schirmer for plaintiff; Daniel Smith and J. Benjamin Davis for defendant. N.C. App. Unpub.

Civil Practice

Appeals – Taxation – Real Property – Property Tax Commission

An attorney instructed her paralegal to hand-deliver and file notices of appeal with the Property Tax Commission and to mail copies to the county revenue director and the county attorney; nevertheless the paralegal mistakenly hand-delivered, filed and mailed the papers only to the county revenue director and the county attorney. Since the commission did not receive the notices of appeal within 30 days of the decision by the county board of equalization and review, the commission lacked subject matter jurisdiction over the client-taxpayers’ appeals.

We affirm the commission’s dismissal of the appeals.

In re Coggins (Lawyers Weekly No. 012-127-18, 14 pp.) (Mark Davis, J.) Appealed from the Property Tax Commission. John Crook for taxpayers; Ronald Gibson for Wake County. N.C. App.

Civil Practice

Attorney’s Fees – Frivolous Claim – Contract – Vehicle Repair

Plaintiffs alleged that defendants had failed to make necessary repairs to plaintiffs’ vehicle and had actually damaged the vehicle, and the trial court relied on plaintiff Burton’s affidavit – saying the vehicle was undriveable and had sustained $22,750 in damages – when it denied defendants’ motion for summary judgment. At trial, Burton admitted that the truck was driveable, and plaintiffs were unable to provide evidence of damages to support their claims. Under these circumstances, the trial court did not abuse its discretion by awarding attorney’s fees to defendants pursuant to G.S. § 75-16.1.

Affirmed.

Burton Construction Cleanup & Landscaping, Inc. v. Outlawed Diesel Performance, LLC (Lawyers Weekly No. 011-280-18, 10 pp.) (Philip Berger, J.) Appealed from Forsyth County Superior Court (Susan Bray, J.) Matthew Spencer for plaintiffs; Joshua Bennett for defendants. N.C. App.

Civil Practice

Consent Order – Voluntary Dismissal – Sanctions Order

The parties entered into a consent order, plaintiffs failed to abide by the terms of the order, and plaintiffs filed a voluntary dismissal. Defendants’ subsequently filed motion for sanctions did not bring the case back to life. The trial court lacked authority to sanction plaintiff.

We vacate the sanctions order.

Pura Vida Management Corp. v. Adio Management Co. (Lawyers Weekly No. 012-144-18, 10 pp.) (Hunter Murphy, J.) Appealed from Cumberland County Superior Court (Douglas Sasser, J.) Richard Wiggins for plaintiffs. N.C. App. Unpub.

Civil Practice

Consolidation – Prior Pending Action – Construction Contract – Subcontractor

Although the plaintiff-developer and defendant-subcontractor are both parties to a previously filed lawsuit, since they are not opposing parties in the other lawsuit, the negligence claim that the developer brings here was not a compulsory counterclaim in the earlier lawsuit.

The subcontractor’s motion to dismiss is denied. The court grants the developer’s motion to consolidate this case with the previously filed action.

Crescent University City Venture, LLC v. Trussway Manufacturing, Inc. (Lawyers Weekly No. 020-050-18, 14 pp.) (Louis Bledsoe III, C.J.) Timothy Lendino and Robert Marcus for defendant; Kiran Mehta, Samuel Reaves and Kristen Schneider for plaintiff. 2018 NCBC 71

Civil Practice

Default – Trial Court’s Authority – Defenses – Debt Collection

Where the defendant-debtor defaulted in this debt collection action, the trial court could not, sua sponte, raise the defenses of the statute of limitations and violation of G.S. § 58-70-115.

We reverse the trial court’s denial of plaintiff’s motion for default judgment and its dismissal of the complaint.

Unifund CCR, LLC v. Francois (Lawyers Weekly No. 011-236-18, 6 pp.) (Richard Dietz, J.) Appealed from Mecklenburg County District Court (Becky Tin, J.) Andrew Hoke for plaintiff; no appellee brief filed. N.C. App.

Civil Practice

Discovery – Depositions – Errata Sheet – Extensive Changes

While defendant Whitworth’s changes to her deposition testimony are extensive and substantive, N.C. R. Civ. P. 30(e) allows her to make such changes.

The court denies plaintiffs’ request to strike Whitworth’s errata sheet.

Window World of Baton Rouge, LLC v. Window World, Inc. (Lawyers Weekly No. 020-056-18, 11 pp.) (Louis Bledsoe III, C.J.) Charles Coble, Robert King III, Benjamin Norman, Jeffrey Oleynik, Andrew Rodenbough, Richard Wolff, John Wolff III and Virginia McLin for plaintiffs; Michael Medford, Judson Welborn, Natalie Rice, Jessica Vickers, Mark Leitner, Joseph Goode, Jessica Farley, Sarah Thomas Pagels, John Halpin, Andrew Freeman and Alan Ruley for defendants. 2018 NCBC 78

Civil Practice

Discovery Violations – Dismissal – Jurisdiction – Deferred Ruling

The trial court could defer ruling on defendant’s motion for sanctions under N.C. R. Civ. P. 37 until after trial; this did not divest the trial court of jurisdiction to rule on the motion after a mistrial was declared.

We affirm the trial court’s order granting the motion for sanctions, dismissing plaintiff’s complaint, and requiring plaintiff to pay defendant’s costs and attorney’s fees.

Greater Harvest Global Ministries, Inc. v. Blackwell Heating & Air Conditioning, Inc. (Lawyers Weekly No. 012-084-18, 14 pp.) (Lucy Inman, J.) Appealed from Cumberland County Superior Court (Winston Gilchrist, Richard Brown & James Webb, JJ.) Nichole Hatcher for plaintiff; Steven Lawrence for defendant. N.C. App. Unpub.

Civil Practice

Joinder – Pretrial Motions – Trial Judge

A superior court judge erred in granting a pretrial motion to consolidate when he was not scheduled to preside over the trial of the consolidated case; nevertheless, the presiding judge corrected the error – he implicitly found that joinder was proper when he presided over the trial of the consolidated case.

We reverse the Court of Appeals’ ruling, which vacated the consolidation order and remanded the newly unconsolidated cases to superior court. We remand to the Court of Appeals to consider other issues that its decision did not reach.

Boone Ford, Inc. v. IME Scheduler, Inc. (Lawyers Weekly No. 010-069-18, 15 pp.) (Mark Martin, C.J.) (Paul Newby, J., concurring in the result only) Appealed from Watauga County Superior Court (Jeff Hunt, J.) On appeal from the Court of Appeals. Anné Wright for appellant; Nathan Miller for appellees. N.C. S. Ct.

Civil Practice

Judgments – Unsuccessful Execution – Receivership – Unpursued Claims

Where (1) defendant drove drunk and killed plaintiff’s decedent, (2) plaintiff obtained a judgment of $4,295,000 against defendant, (3) attempts to execute on the judgment were unsuccessful, and (4) defendant has not pursued potential claims against her insurance company and its attorneys for failing to settle plaintiff’s lawsuit against her, the trial court should have granted plaintiff’s motion for appointment of a receiver over defendant’s unliquidated legal claims against third parties.

We reverse the trial court’s denial of plaintiff’s motion for appointment of a receiver.

Haarhuis v. Cheek (Lawyers Weekly No. 011-282-18, 21 pp.) (Valerie Zachary, J.) (Richard Dietz, J., concurring) Appealed from Chatham County Superior Court (Elaine O’Neal, J.) Leto Copeley and Drew Culler for plaintiff; Walter Burton, Stephanie Anderson and Charles Ivey for defendant; John Barringer and Jeffrey Kuykendal for Universal Insurance Co.; Cynthia Van Horne for Burton, Sue & Anderson, LLP. N.C. App.

Civil Practice

Motion to Continue – Scheduling Conflict – Judges’ Resolution – Unread Email

Even though defense counsel had appearances scheduled at the same time in Vance County Superior Court and Wake County District Court, and even though superior court trials normally take precedence over district court trials, the judges communicated and resolved the scheduling conflict. At that point, the reason behind defendant’s motion to continue the district court trial no longer existed, and the district court did not abuse its discretion when it denied the motion.

We affirm the denial of defendant’s motion to dismiss.

Tractor Place, Inc. v. Bolton (Lawyers Weekly No. 012-128-18, 8 pp.) (Philip Berger, J.) Appealed from Wake County District Court (Michael Denning, J.) Philip Kirk for plaintiff; E.N. Bagshawe for defendant. N.C. App. Unpub.

Civil Practice

Service of Process – Former Address – Wife’s Signature

Even though, at the address on defendant’s active driver’s license, defendant’s wife signed for the Federal Express delivery of plaintiff’s complaint and summons, since affidavits from defendant and his wife indicated that defendant had moved to the Philippines two years earlier and that his wife was not designated as his agent for acceptance of service of process, defendant rebutted the presumption of service.

We affirm the trial court’s order dismissing the complaint for insufficient service of process.

Midgette v. Concepcion (Lawyers Weekly No. 012-086-18, 12 pp.) (Richard Dietz, J.) Appealed from Pitt County Superior Court (Jeffery Foster, J.) Malik Dixon for plaintiff; Ron Medlin Jr., for defendant. N.C. App. Unpub.

Civil Practice

Standing – Real Property – Homeowners Association – Adherence to Bylaws

Once defendant received title to a planned community’s common area, defendant became a member of the community’s homeowners association; accordingly, he can challenge the association board’s standing to file suit against him. Where the association’s board did not follow the procedure set out in its bylaws before filing suit, the association does not have standing to maintain this lawsuit, which seeks a declaratory judgment that homeowners have rights in the common area.

Since the trial court improperly denied defendant’s motion for summary judgment, we dismiss plaintiff’s appeal.

Homestead at Mills River Property Owners Association, Inc. v. Hyder (Lawyers Weekly No. 012-099-18, 40 pp.) (Linda McGee, C.J.) (John Tyson, J., concurring in the result to dismiss for lack of jurisdiction, without separate opinion) Appealed from Henderson County Superior Court (Mark Powell, J.) James Lee for plaintiff; Brad Stark and W. Perr Fisher Ii for defendant. N.C. App. Unpub.

Civil Practice

Subject Matter Jurisdiction – Post-Default Motion – Workers’ Compensation – Tort/Negligence

Defendant, the owner of the vehicle in which plaintiff’s decedent was killed, waited until months after default was entered against him before he claimed that the decedent had been his employee and had been killed in the course of her employment; nevertheless, defendant’s argument that plaintiff should have filed her claim in the Industrial Commission raises a question of the trial court’s subject matter jurisdiction. Defendant could raise this issue at any time; moreover, the equitable defenses of laches and estoppel have no bearing on the trial court’s subject matter jurisdiction.

We vacate the trial court’s order denying defendant’s motion to dismiss. We remand for further proceedings.

Burgess v. Smith (Lawyers Weekly No. 011-244-18, 18 pp.) (Rick Elmore, J.) Appealed from Haywood County Superior Court (Bradley Letts, J.) James Kirkpatrick III for plaintiff; Richard Turner Jr. for defendant. N.C. App.

Civil Practice

Subject Matter Jurisdiction – Summary Judgment – Workers’ Compensation – Manager’s Minor Daughter

Where the complaint alleges that (1) the operators of a large chicken farm approved of their farm manager allowing her minor daughter, Morgan, to help out in the chicken houses and (2) Morgan was paid cash for her assistance, there is a genuine issue of material fact as to whether Morgan was an employee who must file a workers’ compensation claim to recover for the injury she suffered while cleaning the louvers of a fan in a chicken house.

We affirm the trial court’s denial of defendants’ motion for summary judgment on the question of subject matter jurisdiction.

North v. McRae (Lawyers Weekly No. 012-147-18, 23 pp.) (Donna Stroud, J.) Appealed from Richmond County Superior Court (James Ammons, J.) Richard Buckner for plaintiffs; Jeremy Stephenson, Marc Tucker, Matthew Nis Leerberg and John Rogers for defendants. N.C. App. Unpub.

Civil Practice

Substitute judge erred in granting reconsideration

After the initial trial judge’s retirement, the judge re-assigned to a case erred in reconsidering and effectively reversing a highly fact-dependent decision to recognize the defendants’ immunity from suit. The reconsideration exceeded the bounds of Rule 54.

U.S. Tobacco Coop. Inc. v. Big S. Wholesale of Va. LLC (Lawyers Weekly No. 001-133-18, 39 pp.) (Traxler, J.) No. 17-2070; Aug. 3, 2018; from EDNC at Raleigh (Boyle, J.). Gary S. Parsons for Appellants; Patrick George Nemeroff & Richard P. Bress for Appellees. 4th Cir.

Constitutional

Civil Penalty – Administrative – Environmental – Hog Farm Payments – Schools & School Boards

After hog farms sent millions of gallons of waste into North Carolina’s waterways, Smithfield Foods, Inc. and several of its subsidiaries entered into an agreement with our attorney general, pursuant to which the companies agreed to pay the state one dollar per hog, up to $2 million per year, for 25 years. Although the agreement provided that the money was to go towards environmental enhancement activities, there are genuine issues of material fact as to whether this money was paid by the companies to demonstrate good corporate citizenship or as a penalty, which our state constitution would require to be paid to our public schools.

We reverse summary judgment for defendant and remand for further proceedings.

De Luca v. Stein (Lawyers Weekly No. 011-264-18, 32 pp.) (John Tyson, J.) (Wanda Bryant, J., dissenting) Appealed from Wake County Superior Court (Paul Ridgeway, J.) Paul Stam and Amy O’Neal for plaintiffs; Marc Bernstein and Jennie Wilhelm Hauser for defendant; Mary Maclean Asbill, Brooks Rainey Pearson and Blakely Hildebrand for intervenors; Deborah Stagner and Lindsay Vance Smith for amicus curiae. N.C. App.

Constitutional

Expression not chilled by school’s initial inquiry

A university did not restrict or chill students’ speech by seeking their response to complaints that they had harassed others. The students, who’d sought and obtained university approval for a campus “Free Speech Event,” met with an official to discuss allegations of sexism and racism at the event. After the meeting, the University concluded no further action was warranted.

Abbott v. Pastides (Lawyers Weekly No. 001-140-18, 36 pp.) (Harris, J.) No. 17-1853; Aug. 16, 2018; from DSC at Columbia (Seymour, J.). Robert Corn-Revere for Appellants; Carl Frederick Muller for Appellees. 4th Cir.

Constitutional

Search & Seizure – Daughter’s Tablet – Free Speech – Due Process

Even if plaintiff has a reasonable expectation of privacy in the tablet that he gave his daughter to take to school, such a right was not clearly established at the time sheriff’s detectives searched the tablet.

The court grants defendants’ motion to dismiss.

Johnson v. Allen (Lawyers Weekly No. 002-011-18, 17 pp.) (James Dever, C.J.) 7:18-cv-00014. Brad Johnson for plaintiff; Christopher Geis, Loryn Ashley Buckner, Benton Louis Toups, Elizabeth King, Edwin West and Sarah Saint for defendants. E.D.N.C.

Constitutional

Vets’ tort claims against contractor not justiciable

Waste and water management systems in Iraq and Afghanistan were operationally controlled by the military, not its contractor. Thus, mass tort claims for harms caused by the contractors’ alleged environmental mismanagement were barred by the political question doctrine.

In re KBR Inc. Burn Pit Litigation (Lawyers Weekly No. 001-111-18, 37 pp.) (Floyd, J.) No. 17-1960; June 20, 2018; from DMD at Greenbelt (Titus, J.) Susan L. Burke for Appellants; Warren W. Harris for Appellees. 4th Cir.

Contract

Airplane Ownership – Fractional Shares – Component Parts – Bankruptcy – Florida Law

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 – returned to defendants’ plane.

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

Press v. AGC Aviation, LLC (Lawyers Weekly No. 011-249-18, 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.

Contract

Quantum Meruit – Unfairness – ‘Under-the-Counter’ Job

Although plaintiff alleged that its employee approached defendants and offered to do concrete work for defendants “under the counter” at a price plaintiff couldn’t match, since plaintiff did not allege that defendants knew the employee improperly used plaintiff’s equipment and labor, the complaint did not state a claim for quantum meruit.

We affirm the trial court’s grant of defendants’ motion to dismiss and denial of plaintiff’s motion to amend.

Preferred Concrete Polishing, Inc. v. Pike (Lawyers Weekly No. 012-088-18, 7 pp.) (Richard Dietz, J.) Appealed from Forsyth County Superior Court (Anderson Cromer, J.) Matthew Spencer and Steven Smith for plaintiff; John Korzen and L.G. Gordon Jr., for defendants. N.C. App. Unpub.

Corporate

Derivative Action – Civil Practice – Counterclaims – Standing – First Impression

Even though a corporation in a shareholder’s derivative suit cannot defend itself on the merits, the court is persuaded by the reasoning of federal courts and holds that the nominal defendant-corporation may assert counterclaims against plaintiff, who is one of only three shareholders in the corporation.

Plaintiff’s motion to dismiss for lack of subject matter jurisdiction is granted as to defendant Hechmann’s and Liu’s breach of contract counterclaims insofar as those claims are based on the confidential disclosure agreement (CDA); otherwise, the motion is denied.

Gao v. Sinova Specialties, Inc. (Lawyers Weekly No. 020-049-18, 23 pp.) (Michael Robinson, J.) Jeffrey Oleynik, Jessica Thaller-Moran, Ryan Fairchild, Gabriel Aizenberg, Andrew Enschedé, and Lucia Marker-Moore for plaintiff; Joseph Moss Jr., Marc Gustafson, and Sara Higgins for defendants. 2018 NCBC 69

Corporate

Minority Shareholder – Controlling Shareholders – Breach of Fiduciary Duty

Even though the defendant-shareholders own only 40 percent of the shares of the defendant-corporation, the plaintiff-minority shareholder has alleged that they exercised sufficient control over the corporation to allow him to state a claim for breach of fiduciary duty.

The court grants defendants’ motion to dismiss plaintiff’s unfair trade practices claim. Otherwise, their motions are denied.

Brewster v. Powell Bail Bonding, Inc. (Lawyers Weekly No. 020-053-18, 17 pp.) (Adam Conrad, J.) G. Kurt Thompson Jr. and Mark Ihnat for plaintiff; W. Cory Reiss for defendants. 2018 NCBC 74

Corporate

Veil Piercing – Jury Determination – Balancing of Equities

To the extent the decision to pierce a legal entity’s veil is left solely to the jury, the jury here has conclusively determined plaintiff’s entitlement to that relief, and the court enters judgment accordingly. To the extent the decision to pierce is left to the court, the court concludes, after reviewing the jury’s findings, considering the evidence admitted at trial and the parties’ arguments, and balancing the equities, that defendants Marquis Diagnostic Imaging of North Carolina, LLC’s and Marquis Diagnostic Imaging, LLC’s veils should be pierced.

The limited liability forms of Marquis Diagnostic Imaging of North Carolina, LLC (MDI-NC), and Marquis Diagnostic Imaging, LLC (MDI), shall be set aside, and plaintiff shall recover from all defendants, jointly and severally, the principal sum of $3,014,925, plus prejudgment interest in the amount of $1,709,550 and post-judgment interest at the legal rate until paid.

Insight Health Corp. v. Marquis Diagnostic Imaging of North Carolina, LLC (Lawyers Weekly No. 020-035-18, 43 pp.) (Louis Bledsoe III, J.) Marcus Hewitt and Jeffery Whitley for plaintiff; Wyatt Stevens, Ann-Patton Hornthal and John Noor for defendants. 2018 NCBC 55

Criminal Practice

Bail Bond – Forfeiture Remission – Insufficient Motion

Although the bail bondsman’s testimony showed that he had brought defendant to trial for several days, that defendant had managed to remove an electronic-monitoring device from his ankle and abscond from the courthouse during the trial, and that the bondsman had expended approximately $80,000 and traveled as far as New Jersey in an attempt to find defendant and return him to custody, the surety’s motion to remit forfeiture of the bond was itself insufficient. G.S. § 15A-544.8(c)(1) requires such a motion to “state the reasons for the motion,” and the surety’s motion merely said “there were extraordinary circumstances . . . that would justify a relief. . . .” The surety failed to comply with the statutory requirement to set forth evidence.

Because of the deficiencies in the surety’s motion, the trial court had no grounds on which to grant the motion.

We reverse the trial court’s grant of the surety’s motion to remit forfeiture.

State v. Crooms (Lawyers Weekly No. 011-273-18, 7 pp.) (Philip Berger, J.) Appealed from Wilson County Superior Court (Milton Fitch, J.) No brief filed for the state, defendant or surety. Kristopher Caudle and Rebecca Williams for respondent. N.C. App.

Criminal Practice

Convictions upheld for African terror group fundraisers

The district court did not err in convicting and sentencing two U.S. citizens who engaged in online fundraising activities for a foreign terrorist organization. The evidence supporting the convictions – obtained through ex parte, in camera FISA review – was not improperly obtained and proved the defendants’ intended support of the organization’s terrorist activities.

United States v. Dhirane (Lawyers Weekly No. 001-119-18, 19 pp.) (Niemeyer, J.) No. 17-4205; July 16, 2018; from EDVA at Alexandria (Trenga, J.) Geremy C. Kamens for Appellants; Jonathan Y. Ellis for Appellee. 4th Cir.

Criminal Practice

DWI – Statute of Limitations – Citation

Although the former version of G.S. § 15-1 appeared to require that an indictment or presentment be filed against a misdemeanant in order to toll the two-year statute of limitations, a citation was sufficient to toll the statute of limitations applicable to defendant’s DWI.

We reverse the Court of Appeals’ decision upholding the superior court’s dismissal of the charge of driving while impaired.

State v. Curtis (Lawyers Weekly No. 010-067-18, 12 pp.) (Barbara Jackson, J.) Appealed from Caldwell County Superior Court (Michael Duncan, J.) On discretionary review from the Court of Appeals. Christopher Brooks for the state; Timothy Rohr for defendant. N.C. S. Ct.

Criminal Practice

Felony Child Abuse – Pattern Jury Instructions – ‘Sexual Act’ – Separate Assault

This court has held that the definition of a “sexual act” in violation of G.S. § 14-318.4(a2) is the detailed definition set out in G.S. § 14-27.1(4). The N.C. Pattern Jury Instructions’ definition of “sexual act” is more general. Although the trial court gave the inaccurate pattern jury instruction of “sexual act,” defendant has not shown that he was prejudiced thereby.

We find no prejudicial error in defendant’s convictions of taking indecent liberties with a child and felony child abuse.

State v. Alonzo (Lawyers Weekly No. 011-257-18, 14 pp.) (Hunter Murphy, J.) (John Arrowood, J., concurring in the result only without separate opinion) Appealed from Cumberland County Superior Court (Gale Adams, J.) Ellen Newby for the state; Daniel Shatz for defendant. N.C. App.

Criminal Practice

First Impression – Indian Major Crimes Act – Native American Status – Subject Matter Jurisdiction

Defendant is a first descendant of an enrolled member of the Eastern Band of Cherokee Indians; however, (with an Indian blood quantum of only 11/256) defendant is not eligible to enroll in the tribe; moreover, he is not entitled to receive benefits from the tribe or from the government based on tribal enrollment, and he is not involved in tribal life. Therefore, defendant is not an “Indian” within the meaning of the Indian Major Crimes Act.

We find no error in defendant’s convictions of armed robbery, felony murder, and firearm possession by a felon. We dismiss defendant’s motion for appropriate relief without prejudice. We remand for correction of a clerical error (to arrest judgment on the armed robbery offense rather than the firearm possession offense).

State v. Nobles (Lawyers Weekly No. 011-224-18, 32 pp.) (Rick Elmore, J.) Appealed from Jackson County Superior Court (Bradley Letts, J.) Kathleen Bolton for the state; Anne Gomez for defendant. N.C. App.

Criminal Practice

Indecent Exposure – ‘Presence’ of a Child – Several Yards Away

In order to convict defendant of felony indecent exposure, the state had to prove that the exposure was “in the presence” of a child. According to our case law, this means that, if the child had looked, he could have seen the exposure. Since the child in this case was playing on a tree several yards away from where defendant sat in his car, the trial court erred when it refused to give defendant’s requested jury instruction “that the [child] could have seen had they looked.”

Defendant is entitled to a new trial.

State v. Hoyle (Lawyers Weekly No. 011-233-18, 14 pp.) (John Arrowood, J.) (Hunter Murphy, J., dissenting) Appealed from Catawba County Superior Court (Jeffrey Hunt, J.) Tiffany Lucas for the state; Anne Bleyman for defendant. N.C. App.

Criminal Practice

Insurance Fraud – Wrong Insurer

Where defendant was charged with defrauding The Hartford Insurance Company, but where the state presented evidence only that defendant made fraudulent statements to Nationwide, the state failed to prove the crime for which defendant was indicted.

We vacate defendant’s conviction of insurance fraud.

State v. Ferrer (Lawyers Weekly No. 011-255-18, 5 pp.) (Donna Stroud, J.) Appealed from Person County Superior Court (W. Osmond Smith III, J.) racy Nayer for the state; Narendra Ghosh for defendant. N.C. App.

Criminal Practice

Juvenile D.C. sniper to be resentenced under Miller

The younger “D.C. sniper,” who was a teenager when he was convicted of several murders and related crimes, must be resentenced following retroactive constitutional standards for juvenile punishment, established subsequent to his sentencing.

Malvo v. Mathena (Lawyers Weekly No. 001-109-18, 25 pp.) (Niemeyer, J.) No. 17-6746; June 21, 2018; from EDVA at Norfolk (Jackson, J.) Matthew Robert McGuire for Appellant; Craig Stover Cooley for Appellee. 4th Cir.

Criminal Practice

‘Keeping’ a Vehicle – Duration – Use

An hour and a half’s possession, plus a two-month-old receipt, showed that defendant “kept” a vehicle; storing cocaine in the vehicle’s gas-cap compartment showed that defendant was “keeping” illegal drugs.

We reverse the Court of Appeals’ decision, which reversed defendant’s conviction for keeping or maintaining a vehicle which is used for the keeping or selling of controlled substances.

State v. Rogers (Lawyers Weekly No. 010-068-18, 15 pp.) (Mark Martin, C.J.) Appealed from New Hanover County Superior Court (W. Allen Cobb, J.) On appeal from the Court of Appeals. Kathleen Bolton for the state; Wyatt Orsbon for defendant. N.C. S. Ct.

Criminal Practice

Larceny Victim – Indictment & Proof Variance – Forfeiture of Counsel – Interruptions – Habitual Felon

Even though the indictment alleged that defendant stole a checkbook from an individual while the proof at trial showed that the checkbook belonged to a business, the evidence also showed that the individual was in exclusive possession and control of the checkbook and that he viewed it as being his checkbook. Therefore, the individual had a special property interest in the checkbook, and there was no fatal variance between the indictment and the proof at trial.

The state concedes the trial court erred in entering judgment for eight counts of felony larceny when the property was all stolen in a single transaction. Accordingly, we vacate seven of the eight counts of felony larceny and remand for sentencing on one count of felony larceny. Also, the habitual felon indictment is fatally defective, so we vacate defendant’s habitual felon status. Otherwise, we find no error.

State v. Forte (Lawyers Weekly No. 011-221-18, 36 pp.) (Robert Hunter Jr., J.) Appealed from Wilson County Superior Court (Robert Johnson, J.) Grady Balentine Jr. for the state; Hannah Love for defendant. N.C. App.

Criminal Practice

MS-13 murder convictions upheld

Six defendants tried together were properly convicted of murder and attempted murder offenses related to their gang membership. Their convictions were upheld despite challenges to prosecutorial conduct, jury instructions, evidence admitted at trial, joint trial, access to counsel, warrantless cell record access, and sentencing of young defendants without consideration of mitigating factors.

United States v. Chavez (Lawyers Weekly No. 001-115-18, 26 pp.) (Wilkinson, J.) No. 16-4499; July 2, 2018; from EDVA at Alexandria (Lee, J.) Jerome Patrick Aquino and Christopher Bryan Amolsch for Appellants; Tobias Douglas Tobler for Appellee. 4th Cir.

Criminal Practice

Murder – Victim’s Skull – First Impression

A hunter found the victim’s skeleton in a field; at trial, the hunter positively identified the victim’s skull as the one he found, based on its two front teeth. Although the trial court’s admission of a homicide victim’s skull is an issue of first impression for this court, we hold that the admission of the skull was more probative than prejudicial, and the skull was properly admitted under N.C. R. Evid. 403.

We find no prejudicial error in defendant’s conviction of first-degree murder.

State v. Enoch (Lawyers Weekly No. 011-289-18, 40 pp.) (Robert Hunter, J.) Appealed from Alamance County Superior Court (James Hardin, J.) Mary Carla Babb for the state; Anne Gomez for defendant. N.C. App.

Criminal Practice

Probable Cause – DWI – Indictment Amendment – Malicious Conduct

A police officer had probable cause to arrest defendant for driving while impaired without the use of objective field sobriety tests or breath tests based on the strong odor of alcohol coming from defendant’s person, his unresponsive answers to the officer’s questions, and an informant claiming defendant had just driven off with her vehicle.

We vacate defendant’s conviction for malicious conduct by a prisoner, dismiss his ineffective assistance of counsel argument without prejudice, affirm the trial court’s denial of defendant’s motion to suppress, and find no error in defendant’s convictions of driving while impaired, assault on a government official/employee, and communicating threats.

State v. Watson (Lawyers Weekly No. 012-152-18, 17 pp.) (Donna Stroud, J.) Appealed from Johnston County Superior Court (Thomas Lock, J.) Katherine McCraw for the state; Sarah Holladay for defendant. N.C. App. Unpub.

Criminal Practice

SBM – Constitutional – Fourth Amendment – Unreasonable Future Search

The trial court ruled that, at the end of his prison sentence, defendant would be subjected to satellite-based monitoring (SBM) for the rest of his life. However, the state has not established the circumstances necessary for the court to determine the reasonableness of a search (i.e., SBM) 15 to 20 years before its execution.

The court vacates the trial court’s civil order mandating SBM.

State v. Gordon (Lawyers Weekly No. 011-275-18, 26 pp.) (Valerie Zachary, J.) (Richard Dietz, J., concurring in the result) Appealed from Forsyth County Superior Court (Susan Bray, J.) Joseph Finarelli for the state; Michele Goldman for defendant. N.C. App.

Criminal Practice

Search & Seizure – Consent to Search – Coercion – Insufficient Showing

Although defendant contends that his race is highly relevant to the determination of whether he voluntarily consent to a pat-down of his person, and although he presented evidence of studies which indicate that, for people of color in general, “any police request for consent to search will be viewed as an unequivocal demand to search that is disobeyed or challenged only at significant risk of bodily harm,” defendant presented no evidence that his own consent in this particular case was involuntary. While multiple officers were present on the scene, only Officer McPhatter interacted with defendant; defendant did not testify that he was unaware of his ability to refuse Officer McPhatter’s request or that he feared retribution had he elected to do so; there is no indication that Officer McPhatter made threats, used harsh language, or raised his voice; there was no evidence that any of the officers made physical contact with defendant before asking for his consent to search; and each of the officers’ firearms remained holstered throughout the encounter. Based on these circumstances, we cannot conclude that defendant’s consent was involuntary.

We affirm the trial court’s denial of defendant’s motion to suppress the heroin that was found on his person.

State v. Bartlett (Lawyers Weekly No. 011-251-18, 15 pp.) (Valerie Zachary, J.) Appealed from Guilford County Superior Court (Susan Bray, J.) David Gore III for the state; Warren Hynson for defendant. N.C. App.

Criminal Practice

Search & Seizure – Person, Vehicle & Residence – Pre-Mirandized Statements

The warrant to search defendant’s residence also authorized the search of his vehicles and his person; consequently, officers could search defendant and his Range Rover in a store parking lot a few miles from his residence. In any event, officers had independent probable cause to arrest defendant in connection with drug dealing evidence recovered from the trash pulls at his residence.

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

State v. Winchester (Lawyers Weekly No. 011-234-18, 18 pp.) (Rick Elmore, J.) Appealed from Guilford County Superior Court (R. Stuart Albright, J.) Marie Evitt and Derrick Mertz for the state; Barry Snyder and Gabriel Snyder for defendant. N.C. App.

Criminal Practice

Search & Seizure – SBM’s Efficacy – No Evidence

Where the state presented no evidence that the satellite-based monitoring program is effective in protecting the public from sex offenders, ordering satellite-based monitoring of defendant violates his rights under the Fourth Amendment.

We reverse the trial court’s order requiring defendant to submit to satellite-based monitoring (SBM).

State v. Griffin (Lawyers Weekly No. 011-256-18, 18 pp.) (Lucy Inman, J.) (Wanda Bryant, J., dissenting) Appealed from Craven County Superior Court (Benjamin Alford, J.) Joseph Finarelli for the state; James Grant for defendant. N.C. App.

Criminal Practice

Sentencing – Juvenile Offender – Life without Parole – First Impression

Where the trial court found that “there is no certain prognosis” for defendant’s potential for rehabilitation, defendant – who was 17 when he committed the two murders at issue – does not fall within the class of juvenile offenders who are “irreparably corrupt” and “permanently incorrigible” and who may therefore be sentenced to life without the possibility of parole. Consequently, the trial court erred by imposing a sentence of life without the possibility of parole.

Vacated and remanded for resentencing to two consecutive terms of life imprisonment with the possibility of parole.

State v. Williams (Lawyers Weekly No. 011-292-18, 14 pp.) (Lucy Inman, J.) Appealed from Mecklenburg County Superior Court (Hugh Lewis, J.) Lars Nance and Kimberly Callahan for the state; Kathryn VandenBerg for defendant. N.C. App.

Criminal Practice

Stand Your Ground – Jury Instructions – No Duty to Retreat – Roadway Incident

Even though defendant wasn’t trying to kill the driver who was purportedly trying to force defendant off the road, since defendant intended to “strike the blow” and shoot the driver’s tire, a self-defense instruction was available for the offenses of discharging a firearm into an occupied and operating vehicle and misdemeanor injury to personal property.

Defendant is entitled to a new trial.

State v. Ayers (Lawyers Weekly No. 011-272-18, 14 pp.) (John Tyson, J.) Appealed from Wake County Superior Court (Paul Ridgeway, J.) Mary Carla Babb for the state; Sean Vitrano for defendant. N.C. App.

Criminal Practice

To trigger Simmons, state argument must look forward

A serial killer, sentenced to death under North Carolina law, had no constitutional right to inform his sentencing jury that he was already ineligible for parole and, thus, did not pose a continuing danger to society.

Warren v. Thomas (Lawyers Weekly No. 001-124-18, 12 pp.) (Harris, J.) No. 17-4; July 10, 2018; from MDNC at Greensboro (Eagles, J.) Kristin Davis Parks for Appellant; Jess D. Mekeel for Appellee. 4th Cir.

Domestic Relations

Alimony – Indian Annulment – Parties’ Earning Capacities – Attorney’s Fees

Although the defendant-wife contends that the parties only cohabited for 71 days, which she says is too short a time to develop a “standard of living,” the plaintiff-husband moved to the United States in order to reside with the wife and enjoyed a certain standard of living upon his arrival here.

We affirm the trial court’s award of alimony and attorney’s fees to the husband.

Khaja v. Husna (Lawyers Weekly No. 012-143-18, 14 pp.) (Christopher Dillon, J.) Appealed from Wake County District Court (Michael Denning, J.) Deborah Sandlin for plaintiff; James Lea and Paige Inman for defendant. N.C. App. Unpub.

Domestic Relations

Child Custody – Grandparent & Mother – Civil Practice – Recusal & Rule 59 – UCCJEA

On plaintiff’s motion, Judge Marshall Bickett recused himself; thereafter, Judge James Randolph had no authority to grant plaintiff’s Rule 59 motion.

Although the first order granting the defendant-maternal grandmother custody of the plaintiff-mother’s child was entered in Florida, our courts have jurisdiction to modify custody because the child has been living here for years with defendant and because none of the parties involved still live in Florida.

Plaintiff’s appeal is dismissed in part; Judge Bickett’s May 16, 2016, order is affirmed; Judge Randolph’s orders are vacated and remanded.

Quevedo-Woolf v. Overholser (Lawyers Weekly No. 011-285-18, 61 pp.) (Linda McGee, C.J.) (Wanda Bryant, J., concurring in the result only without separate opinion) Appealed from Rowan County District Court (Marshall Bickett & James Randolph, JJ.) Carolyn Woodruff and Jessica Snowberger Bullock for plaintiff; James Hoffman for defendant. N.C. App.

Domestic Relations

Civil Practice – Venue – Defendant’s Residence – Future Motions

As required by G.S. § 50-3, the trial court found that, at the time plaintiff’s alimony action was brought, both parties resided in North Carolina and that plaintiff has since moved out of the state. However, even though there was some evidence that, when plaintiff filed her alimony action, defendant did not live in Randolph County, the trial court failed to find that defendant resided outside Randolph County when the claim was filed. Therefore, the trial court’s findings do not support its transfer of venue from Randolph to Caswell County under § 50-3.

We vacate the transfer order and remand for further proceedings.

Scheinert v. Scheinert (Lawyers Weekly No. 011-219-18, 6 pp.) (Richard Dietz, J.) Appealed from Randolph County District Court (Robert Wilkins, J.) Lee Cecil for plaintiff; Arlene Zipp for defendant. N.C. App.

Domestic Relations

Equitable Distribution – Classification – 529 Savings Plan – First Impression

Our state’s 529 Savings Plan criteria say that plan participants “retain[] ownership and control over the Account,” and that their children, as the account beneficiaries, have “no control over any of the Account assets.” The court rejects the defendant-wife’s argument that the 529 Savings Plan accounts that the parties set up for their six children were gifts to the children and should have been excluded from the marital estate.

We affirm the trial court’s classification of the parties’ property but vacate and remand the court’s order to address an insufficient finding of fact.

Berens v. Berens (Lawyers Weekly No. 011-242-18, 10 pp.) (Richard Dietz, J.) Appealed from Mecklenburg County District Court (Matt Osman, J.) Gina Graham Morris and Caroline Mitchell for plaintiff; Michelle Connell for defendant. N.C. App.

Domestic Relations

Equitable Distribution – Valuation – Sports Memorabilia – Wife’s Research

Although an unsubstantiated opinion as to property’s value is insufficient, the defendant-wife could testify about the value of the plaintiff-husband’s sports memorabilia collection after she (1) researched (a) plaintiff’s eBay bidding history, (b) his Bank of America credit card statements, and (c) a PayPal report in plaintiff’s name; (2) took inventory from the sports memorabilia in his storage unit; and (3) spent “hundreds of hours” researching the values of items and going through the aforementioned documents. Defendant did not proffer an unsubstantiated opinion; instead, she offered an opinion substantiated by supporting facts.

We affirm the trial court’s valuation of the sports memorabilia collection at $190,000.

Beasley v. Beasley (Lawyers Weekly No. 012-120-18, 12 pp.) (Robert Hunter, J.) Appealed from Forsyth County District Court (Gordon Miller, J.) Brian Jones for plaintiff; Jill Schnabel Jackson for defendant. N.C. App. Unpub.

Domestic Relations

Parent & Child – Custody & Visitation – Suspension – Evidence – Expert Testimony

Given the ample evidence that the defendant-mother had purposefully engaged in a course of conduct designed to alienate the parties’ children’s affections for their father and that these actions were detrimental to the children’s welfare, the trial court could temporarily suspend visitation for the mother while the father and children participated in reunification therapy.

We affirm the trial court’s order modifying custody.

Sneed v. Sneed (Lawyers Weekly No. 011-287-18, 15 pp.) (Rick Elmore, J.) Appealed from Mecklenburg County District Court (Gary Henderson, J.) Jason Sneed, pro se; Angela McIlveen and David Simmons for defendant. N.C. App.

Domestic Relations

Parent & Child – Joint Legal Custody – Decision-Making Authority

The trial court found that the plaintiff-father does not see to it that the parties’ child, “Ayden,” gets his ADHD medication. The trial court’s findings may support its deviation from pure joint legal custody by granting the defendant-mother final decision-making authority if the parties dispute matters concerning Ayden’s ADHD treatment; however the findings are insufficient to support a broad abrogation from the father of final decision-making authority as to all issues related to Ayden’s health care.

We affirm the trial court’s treatment of the parties’ consent order as a temporary child support order and the court’s award of primary physical custody to the mother. We vacate the trial court’s splitting of decision-making authority and remand for further proceedings.

Eddington v. Lamb (Lawyers Weekly No. 011-246-18, 22 pp.) (Rick Elmore, J.) Appealed from Union County District Court (Hunt Gwyn, J.) Rebecca Watts for plaintiff; Donna Stepp and Jordan Griffin for defendant. N.C. App.

Domestic Relations

Parent & Child – Support – Contempt – Willfulness

Where the trial court’s contempt order said the defendant-father’s failure to pay child support was “without justifiable excuse,” it doesn’t matter that the order failed to use the word “willful” or any of its derivations.

We affirm the trial court’s order holding defendant in contempt.

Whitmore v. Whitmore (Lawyers Weekly No. 012-145-18, 13 pp.) (Hunter Murphy, J.) Appealed from Camden County District Court (Edgar Barnes, J.) Richard Croutharmel for defendant. N.C. App. Unpub.

Domestic Relations

Parent & Child – Support Modification – Uninsured Medical Expenses – Not Raised

Where the defendant-father’s motion to modify child support simply requested that support be “Decreased,” the trial court did not have the authority to eliminate defendant’s obligation to pay a portion of the uninsured medical expenses of the parties’ children.

We reverse the trial court’s order, which denied the plaintiff-mother’s motion for a new trial.

Baucom v. Vlahos (Lawyers Weekly No. 012-101-18, 13 pp.) (Linda McGee, C.J.) (Mark Davis, J., concurring in the result only without separate opinion) Appealed from Mecklenburg County District Court (Jena Culler, J.) Richard Johnson for plaintiff; Matthew Myers for defendant. N.C. App. Unpub.

Domestic Relations

Parent & Child – Support – Voluntary Unemployment – No Bad Faith

Even though the evidence showed that the mother, a registered nurse, was voluntarily unemployed, there was no showing that her decision to stay at home with her three children under the age of three (two of whom were born five weeks premature) was made in bad faith.

We affirm the trial court’s order requiring the defendant-father, but not the mother, to pay child support.

Yancey County ex rel. Buchanan v. Jones (Lawyers Weekly No. 012-116-18, 10 pp.) (Valerie Zachary, J.) Appealed from Yancey County District Court (Larry Leake, J.) Donny Laws for plaintiff; Jenna Blackwell for defendant. N.C. App. Unpub.

Domestic Relations

Parent & Child – Termination of Parental Rights – Progress – Conditions Leading to Removal

Even if the respondent-mother hasn’t made reasonable progress with respect to substance abuse, medication management, mental health/psychological issues or parenting skills, her child (Bev) was removed from her custody because of a domestic violence incident between respondent and Bev’s father and because of a bruise found on four-month-old Bev’s arm. Respondent obtained a 50B order against the father and had no further contact with him after the original incident; moreover, when she got into an argument with her live-in boyfriend and he wouldn’t leave, she called the police before the incident escalated. The evidence shows progress – not a lack of progress – in correcting the conditions that led to Bev’s removal from the home.

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

In re B.O.A. (Lawyers Weekly No. 011-238-18, 13 pp.) (John Tyson, J.) Appealed from Granville County District Court (Caroline Burnette, J.) Holly Williamson Batten and N. Kyle Hicks for petitioner; Edward Eldred for respondent; Derek Bast for guardian ad litem. N. C. App.

Elections

Civil Practice – Standing – Constitutional – Gerrymandering

Plaintiffs have standing to assert their claims that North Carolina’s 2016 Congressional Redistricting Plan violates their constitutional rights. Moreover, with a narrow exception, plaintiffs have shown that the 2016 Plan violates their Equal Protection, First Amendment and Article I rights.

We hereby enjoin the state from conducting any elections using the 2016 Plan in any election after the Nov. 6, 2018, election. Counsel are directed to brief possible remedies.

Common Cause v. Rucho (Lawyers Weekly No. 003-009-18, 321 pp.) (James Wynn, J.) (James Osteen, J., concurring in part & dissenting in part) 1:16-cv-01026. Benjamin Thorpe, Carolina Mackie, Emmet Bondurant, Gregory Diskant, Jason Carter, Peter Nelson, Steven Epstein, Susan Millenky and Edwin Speas for plaintiffs; Alexander McClure Peters, James Bernier, Michael Douglas McKnight, Phillip John Strach and Thomas Farr for defendants. M.D.N.C.

Environmental

District court couldn’t hear pipeline challengers’ suit

Congress stripped district courts’ jurisdiction to hear the claims of landowners challenging provisions of the Natural Gas Act, under which Mountain Valley Pipeline obtained administrative approval to begin construction. The district court properly dismissed their suit.

Berkley v. Mountain Valley Pipeline LLC (Lawyers Weekly No. 001-130-18, 16 pp.) (Wynn, J.) No. 18-1042; July 25, 2018; from WDVA at Roanoke (Dillon, J.) Justin Michael Lugar for Appellants; Susanna Y. Chu and Wade Wallihan Massie for Appellees. 4th Cir.

Environmental

Dominion Energy prevails in Clean Water Act appeal

The Sierra Club sued Dominion Energy under the citizen-suit provision of the Clean Water Act.  Following a bench trial, the district court found that rainwater and groundwater were leaching arsenic from the coal ash in the landfill and settling ponds, polluting the groundwater, which carried the arsenic into navigable waters. And because the court determined that the landfill and settling ponds constituted “point sources” as defined by the Act, it found Dominion liable under the Act. The court affirmed in part, and reversed in part.

Sierra Club v. Va. Elec. & Power Co. (Lawyers Weekly No.  Case No. 001-146-18, 24 pp.) (Niemeyer, J.) No. 17-1895; Sept. 12, 2018; from EDVA at Norfolk (Gibney, J.) Jeffrey A. Lamken for Appellant; Frank S. Holleman III for Appellee. 4th Cir.

Insurance

Auto – Civil Practice – Declaratory Judgment Action – Necessary Parties – Car Sale – Conditional Delivery

The defendant-estate’s decedent tried to buy a car from the defendant-dealership on a Saturday and took conditional delivery of the car under G.S. § 20-75.1 pending credit approval; that same day, the decedent was involved in an accident that took his life and severely injured plaintiffs. The car had been on the dealership’s lot after having been leased and returned with a balance remaining on the lease payments; consequently, at the time the decedent took conditional delivery, the car still belonged to the leasing company rather than the dealership. As a result, the leasing company and its insurer – who are not named as parties – are necessary parties to this lawsuit, which seeks to determine insurance obligations applicable to the accident.

We vacate the trial court’s declaratory judgment – which determined that the dealership’s insurer provided primary liability insurance coverage and that the decedent’s personal insurer provided excess coverage – and remand for further proceedings.

Smith v. USAA Casualty Insurance Co. (Lawyers Weekly No. 011-256-18, 17 pp.) (Mark Davis, J.) Appealed from Hoke County Superior Court (Richard Brown, J.) Thomas Van Camp for plaintiffs; Elizabeth Martineau, Lee Thomas and James Dedman for defendants. N.C. App.

Insurance

Carrier’s denial of benefits affirmed

The district court correctly granted summary judgment to an insurance carrier on the plaintiff’s ERISA claim because its denial of benefits was reasonable under the deferential abuse of discretion standard.

Grabowski v. Hartford Life & Accident Ins. Co. (Lawyers Weekly No. 006-017-18, 9 pp.) (Per Curiam) No. 17-2108; Sept. 4, 2018; from EDVA at Alexandria (Trenga, J.) Denise M. Clark for Appellant; Elizabeth J. Bondurant for Appellee. 4th Cir. Unpub.

Insurance

Municipal – Police Department – Wrongful Acts – Same Defendant

Even though the same rape case was the backdrop for the Hickory Police Department’s wrongful acts in 1987-1988 and again from 2003 to 2011, the acts were separate: the earlier wrongful acts involved withholding exculpatory evidence from the district attorney and hence from defense counsel; the later acts were the delays (eight years’ worth) in searching its evidence archives for a fingerprint card that eventually led to defendant’s release from prison. Since these acts were separate, and since defendant Argonaut Great Central Insurance Co. insured the HPD at the time of the 2003-2011 acts, Argonaut had a duty to defend the HPD when the wrongfully convicted man sued.

We reverse the trial court’s order granting Argonaut’s motion to dismiss as to Argonaut’s duty to defend. We remand for further proceedings as to Argonaut’s duty to indemnify.

City of Hickory v. Grimes (Lawyers Weekly No. 012-082-18, 15 pp.) (Hunter Murphy, J.) Appealed from Catawba County Superior Court (Michael Robinson, J.) Paul Culpepper for plaintiff; Burton Craige, Narendra Ghosh, Paul Smith, Walter Brock Jr. and Andrew Flynt for defendants. N.C. App. Unpub.

Insurance

Under policy, each wrongly fired officer was a distinct claim

The district court erred in finding that three police officers, fired in retaliation for a joint action, represented a single claim for municipal insurance purposes. Thus, the per-claim policy limit applied to each officer individually, rather than the trio as a whole.

Hunter v. Town of Mocksville, N.C. (Lawyers Weekly No. 001-129-18, 49 pp.) (Wynn, J.) No. 17-1374; July 26, 2018; from MDNC at Greensboro (Schroeder, J.) Reynolds Michael Elliot & Robert Mauldin Elliott for Appellants; Cathryn MacDonald Little & Patrick Houghton Flanagan for Appellees. 4th Cir.

Intellectual Property

Sovereign-immunity waiver for infringement not valid

The federal Copyright Remedy Clarification Act’s broad abrogation of states’ sovereign immunity for copyright infringement was not a valid exercise of Congressional authority, either under Article I’s Copyright Clause or § 5 of the Fourteenth Amendment.

Allen v. Cooper (Lawyers Weekly No. 001-113-18, 35 pp.) (Niemeyer, J.) No. 17-1522; July 10, 2018; from EDNC at Raleigh (Boyle, J.) Ryan Y. Park for Appellants/Cross-Appellees; Susan Freya Olive for Appellees/Cross-Appellants. 4th Cir.

Labor & Employment

ADA & FMLA Claims – PTSD – Theft Accusation

Plaintiff’s supervisor repeatedly expressed displeasure about plaintiff’s use of FMLA leave and, while plaintiff was on her last FMLA leave, the supervisor blamed plaintiff when funds were discovered to be missing. The magistrate judge could reasonably infer that plaintiff’s last period of leave was the final straw which caused the supervisor to terminate plaintiff and to blame a missing change fund on plaintiff as a pretext.

The court adopts the analysis of the magistrate judge’s recommendation. Defendant’s motion to dismiss is granted as to plaintiff’s claim for punitive damages; otherwise, the motion is denied.

McNeill v. Fayetteville State University (Lawyers Weekly No. 002-009-18, 7 pp.) (W. Earl Britt, S.J.) 5:17-cv-00609. Wilson Fong for plaintiff; Catherine Faith Jordan for defendant. E.D.N.C.

Labor & Employment

Public Employees – Retirement – Pension Cap – Rulemaking – Schools & School Boards

The General Assembly’s 2014 anti-pension-spiking legislation instructs the Retirement Systems Division to set a cap on pensions, but to allow a retiring employee to avoid the cap by making a payment based on an actuarial computation. Although this “cap factor” must be based on the recommendation of an actuary, this does not relieve the division of the duty to adopt the cap factor according to the rulemaking procedures of the Administrative Procedure Act.

We affirm summary judgment for the petitioner-school board.

Cabarrus County Board of Education v. Department of State Treasurer (Lawyers Weekly No. 011-281-18, 31 pp.) (Linda McGee, C.J.) Appealed from Wake County Superior Court (James Hardin, J.) Deborah Stagner and Michael Crowell for petitioner; Matthew Sawchak, Blake Thomas, Ryan Park and Joseph Newsome for respondents; Elizabeth Troutman, Jill Wilson and Allison Brown Schafer for amicus curiae. N.C. App.

Labor & Employment

Race Discrimination Claim – Racial Epithet – Retaliation

Even though defendant’s human resources manager, Jeff Tingen, vehemently denies calling plaintiff a n****r, genuine issues of material fact exist concerning whether Tingen used the racial epithet and whether Tingen’s conduct was sufficiently severe to alter the conditions of plaintiff’s employment and create a hostile work environment.

The court grants in part and denies in part defendant’s motion for summary judgment.

Coleman v. Altec, Inc. (Lawyers Weekly No. 002-008-18, 14 pp.) (James Dever, C.J.) 5:16-cv-00954. Leroy Coleman, pro se; Robin Shea for defendant. E.D.N.C.

Labor & Employment

Sex Discrimination – Hostile Environment Claim – ‘But for’ Plaintiff’s Sex

Even if the male defendants made unwelcome comments to the male plaintiff on a frequent basis, and even if defendant Grady exposed himself to plaintiff on a number of occasions, plaintiff does not allege sufficient facts to show that acts committed against him would not have been made “but for” his being male.

The court grants defendants’ motion to dismiss plaintiff’s Title VII claim. The court declines to exercise jurisdiction over plaintiff’s state law claims.

Berry v. Southern States Cooperative, Inc. (Lawyers Weekly No. 002-010-18, 7 pp.) (Louise Flanagan, J.) 5:17-cv-00635. Glenn Barfield for plaintiff; Molly McIntosh Jagannathan and Sara Salehi Ash for defendants. E.D.N.C.

Municipal

Zoning – Civil Practice – Remand Order – Nonconforming Use

Although the Sugar Mountain Board of Adjustment’s (the Board’s) original order said the petitioner-owner did not need a variance to enclose its nonconforming deck (which was built before zoning laws that instituted setbacks), since the superior court remanded the Board’s original order and directed the Board to hold a new hearing, the Board was within its authority under the remand order when it reheard the evidence and denied the owner’s variance application, contrary to its initial decision.

We affirm the superior court’s order upholding the Board’s second order.

Round Boys, LLC v. Village of Sugar Mountain (Lawyers Weekly No. 012-091-18, 16 pp.) (Lucy Inman, J.) Appealed from Avery County Superior Court (Gary Gavenus, J.) Gerald McKinney for petitioner; Stacy Eggers IV for respondent; Ann-Patton Hornthal and Wyatt Stevens for intervenor. N.C. App. Unpub.

Real Property

Adverse Possession – Openness & Hostility – Family’s Subdivided Lots

Where (1) plaintiffs’ house sat mostly on plaintiff Donald Slade’s brother’s half-acre lot (Lot 16) and (2) plaintiffs maintained Lot 16, which fronts a public road, as if it were theirs, plaintiffs’ use of Lot 16 was open and notorious.

We affirm the trial court’s declaratory judgment that plaintiffs acquired title to Lot 16 by adverse possession.

Slade v. Petty (Lawyers Weekly No. 012-148-18, 19 pp.) (Hunter Murphy, J.) Appealed from Alamance County Superior Court (G. Wayne Abernathy, J.) Ronald Barbee for plaintiffs; Mark Hayes for defendant. N.C. App. Unpub.

Real Property

Condemnation – Civil Practice – Voluntary Dismissal – Pleadings Amendment – Reduced Deposit

In a condemnation action, the defendant is the claimant, so the defendant may take a voluntary dismissal, thereby accepting the condemnor’s deposit and ending the action.

We reverse the trial court’s rejection of defendant’s voluntary dismissal and its grant of the plaintiff-city’s motion to amend its complaint.

City of Charlotte v. University Financial Properties, LLC (Lawyers Weekly No. 011-227-18, 31 pp.) (Donna Stroud, J.) Appealed from Mecklenburg County Superior Court (Daniel Kuehnert, J.) Nicolas Tosco, Benjamin Sullivan and Charles Meeker for plaintiff; Martin White, R. Susanne Todd and David Brennan for defendant. N.C. App.

Real Property

Condemnation – Temporary Construction Easement – Damages – Motel Access

In the case of a temporary construction easement, i.e. a partial taking, a landowner’s loss of business income is not admissible evidence to prove the damages the landowner will suffer during construction. The proper measure of damages is the rental value of the property actually taken, not the interference with the business income for the entire property.

We affirm the trial court’s refusal to admit certain portions of the defendant-landowner’s expert’s testimony.

Department of Transportation v. Jay Butmataji, LLC (Lawyers Weekly No. 011-245-18, 14 pp.) (Donna Stroud, J.) Appealed from Burke County Superior Court (W. Robert Bell, J.) Kevin Mahoney for the state; Forrest Ferrell and Andrew Howell for defendant. N.C. App.

Real Property

Easements – Deed Description – Blocking – Highway Right-of-Way

Where plaintiff’s and her predecessor’s deeds reserved two gravel easements but did not reserve an easement in the circular drive which connects the two easements, plaintiff is not entitled to an order requiring defendants to remove the trailer with which they have blocked plaintiff’s access to the circular drive.

However, the court notes that the circular drive is within the highway right-of-way, and it is a misdemeanor to obstruct a highway right-of-way. Defendants should determine their responsibilities and liability concerning parking a trailer or any other obstruction within the highway right-of-way.

The court affirms summary judgment for defendants.

McGuire v. Olson (Lawyers Weekly No. 012-110-18, 11 pp.) (John Tyson, J.) Appealed from Watauga County District Court (Rebecca Eggers-Gryder, J.) Tyler Moffatt for plaintiff; Chelsea Bell Garrett for defendants. N.C. App. Unpub.

Real Property

Mortgages – Power-of-Sale Foreclosure – No Default – Lender’s Actions

Where respondent – the disabled son of the late borrower – made the three mortgage payments that had been missed because of his father’s death and set up an automatic withdrawal for future payments, but where the petitioner-bank attempted to withdraw two payments a month early – causing an overdraft – and then refused to communicate with respondent, the superior court properly concluded that the mortgage was not in default.

We affirm the ruling in favor of respondent.

In re Foreclosure of Byrd (Lawyers Weekly No. 012-126-18, 13 pp.) (Wanda Bryant, J.) Appealed from Guilford County Superior Court (Angela Puckett, J.) Claire Collins and Hilton Hutchens for petitioner; no brief filed for respondent. N.C. App. Unpub.

Real Property

Mortgages – Statute of Frauds – Unclean Hands – Collateral Acts

Although the defendant-landowners/debtors contend that the doctrine of unclean hands estops the plaintiff-bank from bringing its claim to reform defendants’ deed of trust, since the actions upon which defendants base their unclean hands argument were collateral to the transaction for which equitable relief is sought, the doctrine does not apply.

We affirm summary judgment for plaintiff.

Nationstar Mortgage, LLC v. Dean (Lawyers Weekly No. 011-284-18, 18 pp.) (John Tyson, J.) Appealed from Dare County Superior Court (Marvin Blount, J.) William Long, Matthew Barnes and E. Travis Ramey for plaintiff; M.H. Hood Ellis for defendants. N.C. App.

Real Property

Quiet Title Action – Boundary Dispute – 1916 Map – Earthen Dam

Although plaintiffs pointed to an oak tree on a 1916 map as a monument, the tree can no longer be located on the ground. On the other hand, the earthen dam on the map still exists, and the trial court did not err in deciding that the dam marked the boundary line between the parties’ properties.

We affirm partial summary judgment for defendant.

Daughtridge v. Tanager Land, LLC (Lawyers Weekly No. 012-139-18, 13 pp.) (Wanda Bryant, J.) (Hunter Murphy, J., dissenting without separate opinion) Appealed from Halifax County Superior Court (Beecher Gray & Marvin Blount, JJ.) Ronald Barger for plaintiffs; Charles Rountree for defendant. N.C. App. Unpub.

Tort/Negligence

Contributory Negligence – Hit & Run – Bicyclist’s Intoxication – Proximate Cause

Where there was some evidence that the plaintiff-bicyclist, a hit-and-run victim, had been drinking and may have been swerving, and where his own doctor opined that alcohol can affect the ability to ride a bicycle in a safe manner, the trial court did not err in submitting the issues of contributory negligence and contributory gross negligence to the jury.

We affirm the trial court’s denial of plaintiff’s motions for directed verdict, judgment notwithstanding the verdict, and for a new trial.

Brubach v. Peterson (Lawyers Weekly No. 012-136-18, 30 pp.) (Robert Hunter, J.) Appealed from New Hanover County Superior Court (Joshua Willey, J.) Kyle Nutt for plaintiff; George Simpson for defendant. N.C. App. Unpub.

Tort/Negligence

Duty – Special Relationship – Ponzi Schemer’s Widow – LLC Involvement – Employer

Since plaintiffs suffered no physical harm, they cannot show that defendants owed them a special duty to protect them from an alleged Ponzi schemer who was defendant Diane Siskey’s husband and the MetLife defendants’ employee.

The court grants the motions to dismiss of defendants Metropolitan Life Insurance Co. and MSI Financial Services, Inc. and defendant Diane Siskey.

Stone Street Partners, LLC v. Williamson (Lawyers Weekly No. 020-052-18, 31 pp.) (Louis Bledsoe III, C.J.) James Smith, Kathleen Burchette, Samantha Lloyd for plaintiffs; Thomas Walker, Matthew McGuire, Caitlin Counts, Charles Raynal IV, Stephen Carey, Amy Greer, John Vassallo III and F. Lane Williamson for defendants. 2018 NCBC 75

Tort/Negligence

Evidence supported punitives for understaffing

In three wrongful death suits in which the jury found liability and awarded punitive damages, the district court erred in finding that the plaintiffs failed to show an “aggravating factor” under North Carolina law that would support punitives. Extensive trial testimony showed that the Defendants willfully and wantonly disregarded legal staffing requirements for nursing facilities so that they could increase profits.

Vandevender v. Blue Ridge of Raleigh LLC (Lawyers Weekly No. 001-141-18, 16 pp.) (Gergel, J.) No. 17-1900; Aug. 27, 2018; from EDNC at Raleigh (Boyle, J.) Rachel Alexis Fuerst for Appellants/Cross-Appellees; Gregory Wenzl Brown for Appellees/Cross-Appellants. 4t Cir.

Tort/Negligence

First Impression – UVTA – Corporate Officer – Civil Conspiracy

Even though defendant Dolan has not yet transferred his ownership interest in defendant Dolven Enterprises, Inc., plaintiff alleges that he has entered into an agreement to do so. Plaintiff’s allegation is sufficient to state a claim under the Uniform Voidable Transactions Act.

The court grants defendant James Dolan’s motion to dismiss as to plaintiff’s claims of fraud, constructive fraud, common law unfair competition, and violation of the Unfair Trade Practices Act. The motion is denied as to plaintiff’s claims of civil conspiracy and violation of the UVTA.

Global Textile Alliance, Inc. v. TDI Worldwide, LLC (Lawyers Weekly No. 020-036-18, 27 pp.) (Gregory McGuire, J.) J. Alexander Barrett and Kurt Seeber for plaintiff; Eric David, Brian Fork, Shepard O’Connell, Fred Monroe, Carl Short III, A. Lee Hogewood III, John Gardner, Matthew Houston, Jonathan Berkelhammer, Steven Scoggan, Scottie Forbes Lee, Shannon Joseph and Jeffrey Roether for defendants. 2018 NCBC 54

Tort/Negligence

Fraud – Breach of Contract – Sweepstakes Business Sale – Notice of Violation

Even if the defendant-seller did not tell the plaintiff-buyer that his Nash County internet sweepstakes business had been served with written notice from law enforcement that the games being played on the machines in his business violated G.S. § 14-306.4 (the sweepstakes statute), plaintiff has nevertheless failed to make out a claim of fraud since plaintiff (1) owned three similar businesses in nearby counties, (2) had received notifications from law enforcement that all three businesses were in danger of being shut down, and (3) had sought legal counsel regarding the legality of her gaming software and machines. Thus, when she entered into the purchase contract, plaintiff was well aware of the risks involved in operating an internet sweepstakes business.

We affirm summary judgment for defendants.

Thompson v. Bass (Lawyers Weekly No. 011-277-18, 13 pp.) (Rick Elmore, J.) Appealed from Nash County Superior Court (G. Wayne Abernathy, J.) Darren Jackson, Andy Gay and Daniel Patrick McNally for plaintiff; J. Richard Hamlett, William Etheridge and Kevin Lewis for defendants. N.C. App.

Tort/Negligence

Interference with Contract – Debtor’s Principal – Diverted Commissions

Where a lender allegedly sought payment of its loan by interfering with a contract between one of the debtor’s principals – who had no obligation to pay the loan – and an unrelated party, the debtor’s principal has sufficiently alleged tortious interference with contract.

The court denies the lender’s motion for judgment on the pleadings as to the defendant-principal’s counterclaims.

Lenders Funding, LLC v. WAIM Management Co. (Lawyers Weekly No. 020-043-18, 9 pp.) (Adam Conrad, J.) Jeffrey Southerland and Jaye Bingham-Hinch for plaintiff; J. Patrick Haywood and Rachel Decker for defendant. 2018 NCBC 67

Tort/Negligence

Malicious Prosecution & Abuse of Process – Workers’ Compensation – Exclusivity Provision – Insurance – Privity of Contract – UDTP

Where plaintiff alleges that the defendant-workers’ compensation insurance carrier had false criminal charges brought against him in an attempt to get out of its duty to pay his workers’ compensation benefits, plaintiff has stated a claim for malicious prosecution, which is not barred by the exclusivity provision of the Workers’ Compensation Act.

The court affirms the trial court’s denial of defendants’ motion to dismiss plaintiff’s claims of malicious prosecution, abuse of process, and unfair trade practices. The court reverses the trial court’s denial of defendants’ motion to dismiss plaintiff’s claims of bad faith and civil conspiracy.

Seguro-Suarez v. Key Risk Insurance Co. (Lawyers Weekly No. 011-271-18, 32 pp.) (Lucy Inman, J.) Appealed from Mecklenburg County Superior Court (Jesse Caldwell, J.) David Kirby and William Bystrynski for plaintiff; Mel Garofalo, C. Rob Wilson, Linda Stephens and M. Duane Jones for defendants. N.C. App.

Tort/Negligence

Medical Malpractice – Civil Practice – Rules 9(j) & 15 – First Impression

Before plaintiff filed her medical malpractice complaint, her medical treatment and records had been reviewed by someone she expected to qualify as an expert; however, her certification pursuant to N.C. R. Civ. P. 9(j) only indicated that her treatment had been review – it failed to say that her medical records had been reviewed. Because plaintiff’s amended complaint corrected a technical pleading error and made clear that the expert review required by Rule 9(j) occurred before the filing of the original complaint, the amended complaint complied with Rule 9(j) and may properly relate back to the date of the original complaint under N.C. R. Civ. P. 15(c).

We reverse and remand. Discretionary review was improvidently granted as to an additional issue.

Vaughan v. Mashburn (Lawyers Weekly No. 010-066-18, 23 pp.) (Robin Hudson, J.) Appealed from Iredell County Superior Court (Stanley Allen, J.) Patricia Shields, Joshua Neighbors, Kevin Duffan, Richard Shapiro and Travis Collum for plaintiff; Chip Holmes and Bradley Overcash for defendants; D. Hardison Wood, W. Ellis Boyle, Phillip Jackson and Eric Edgerton for amici curiae. N.C. S. Ct.

Tort/Negligence

Medical Malpractice – Expert Witness – Specialty – Practice

The defendant-hospital’s “hospitalists” may be considered specialists, since they hold themselves out as hospitalists. Even though plaintiff’s expert, Dr. Paul Genecin, is an internal medicine specialist, since Dr. Genecin is experienced in the procedures performed by the hospitalists and can speak to the relevant standard of care, the trial court should not have disqualified Dr. Genecin as plaintiff’s expert witness.

We reverse the trial court’s disqualification of Dr. Genecin as an expert witness and the trial court’s order granting summary judgment due to lack of evidence of proximate cause, and we vacate the trial court’s order granting summary judgment due to absence of expert testimony.

Da Silva v. WakeMed (Lawyers Weekly No. 012-138-18, 27 pp.) (Robert Hunter, J.) Substituted opinion. 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.

Tort/Negligence

Medical Malpractice – Ordinary Negligence – Fall from Operating Table

In a case involving a patient’s fall from an operating table, the Court of Appeals majority erred when it converted plaintiff’s claim from one of medical malpractice to one of ordinary negligence.

We reverse and remand for the Court of Appeals to address whether the trial court erred in dismissing plaintiff’s complaint.

Locklear v. Cummings (Lawyers Weekly No. 010-071-18, 2 pp.) (Per Curiam) Appealed from Robeson County Superior Court (James Gregory Bell, J.) On appeal from the Court of Appeals. Walter Hart and H. Asby Fuller for plaintiff; Katherine Hilkey-Boyatt, David Ward and Matthew Gambale for defendants. N.C. S. Ct.

Tort/Negligence

Medical Malpractice – Proximate Cause – Neuropathologist – Surgery Decision

Even though plaintiff’s witness was admitted as an expert in neuropathology and not surgery, the neuropathologist was nevertheless in a better position than the jury to have an opinion as to whether plaintiff would have been subjected to surgery but for defendant’s misdiagnosis. Therefore, the trial court erred in excluding the neuropathologist’s testimony as to proximate cause.

We reverse the trial court’s grant of a directed verdict as to plaintiff’s claim against defendant McLendon. Plaintiff raises no argument as to the trial court’s grant of a directed verdict as to other defendants, so we affirm as to plaintiff’s claims against them.

Grodensky v. McLendon (Lawyers Weekly No. 012-106-18, 9 pp.) (Ann Marie Calabria, J.) Appealed from Durham County Superior Court (Rebecca Holt, J.) Fred Smith Jr., Jeremy Ross Swindlehurst and Robert Mann for plaintiff; Mark Anderson, Joan Dinsmore and Jacob Charles for defendants. N.C. App. Unpub.

Tort/Negligence

Runner’s Fall – Storm Drain – Shortcut – Contributory Negligence

Even though a pedestrian crosswalk path would have taken plaintiff to the passenger-side door of her husband’s car, plaintiff took a shortcut across a grass median and – distracted by looking at her children and husband – did not see a storm drain whose metal grate had been removed. Plaintiff’s injuries from the fall were caused by her contributory negligence.

We affirm the Industrial Commission’s denial of plaintiff’s claim.

Khatib v. North Carolina Department of Transportation (Lawyers Weekly No. 011-268-18, 10 pp.) (Rick Elmore, J.) Appealed from the Industrial Commission. Bryant Duke Paris for plaintiff; Alesia Balshakova for defendant. N.C. App.

Tort/Negligence

Sovereign Immunity – County Office Building – Mold – Governmental Function

Where the plaintiff-city employee alleges mold exposure from his work in a county-owned building, plaintiff’s tort claim is barred by governmental immunity.

We reverse the trial court’s denial of the defendant-county’s motion for summary judgment.

Phifer v. Pasquotank County (Lawyers Weekly No. 012-134-18, 9 pp.) (Lucy Inman, J.) Appealed from Pasquotank County Superior Court (Walter Godwin Jr., J.) F. Bryan Brice and Slade Rand for plaintiff; Henry Gorham, Natalia Isenberg and Melissa Woodard for defendants. N.C. App. Unpub.

Tort/Negligence

Strict Liability – Blasting – Contractor’s Employee – Assumption of Risk

Plaintiff, who worked in the rock-crushing division of independent contractor East Coast Drilling & Blasting, Inc. – which also performed blasting services – has stated a strict liability claim against the defendant-developer based on his allegations that the developer directly solicited East Coast’s blasting services and that a blast conducted pursuant to the developer’s contract with East Coast proximately caused plaintiff’s injuries.

We reverse the trial court’s grant of the developer’s motion to dismiss.

Fagundes v. Ammons Development Group, Inc. (Lawyers Weekly No. 011-265-18, 31 pp.) (Linda McGee, C.J.) (Hunter Murphy, J., concurring in the result only without separate opinion) Appealed from Wake County Superior Court (A. Graham Shirley, J.) Leonard Jernigan and Anthony Lucas for plaintiff; Amie Sivon and John Nunnally for defendant. N.C. App.

Tort/Negligence

Vehicle Collision – Police Officer – Silent Pursuit – Municipal – Insurance

A police officer was not grossly negligent when he traveled at 40 mph over the speed limit while chasing a speeder, without activating his blue lights or siren, and crested a hill just before plaintiff’s decedent turned left in front of him without activating a turn signal.

We affirm summary judgment for defendants.

Flood v. Crews (Lawyers Weekly No. 012-113-18, 19 pp.) (Rick Elmore, J.) Appealed from Wake County Superior Court (William Pittman, J.) George Ligon Jr. and Mohammed Shyllon for plaintiff; Dorothy Leapley and Andrew Seymour for defendants. N.C. App. Unpub.

Trusts & Estates

Wills – Real Property – Parol Evidence – Statute of Frauds

According to plaintiff, her childless and widowed brother willed a condominium to her and a house to his sister-in-law. After learning that his sister-in-law preferred the condo, the decedent decided the women could switch, and he deeded the condo to his sister-in-law; however, he never changed his will or deeded the house to plaintiff. Although the decedent may well have intended for plaintiff to inherit his house, he never transferred it to her in a paper writing; accordingly, the sister-in-law is entitled to both the house and the condo.

We affirm summary judgment for the defendant-sister-in-law.

Barrett v. Coston (Lawyers Weekly No. 011-279-18, 9 pp.) (Christopher Dillon, J.) Appealed from Carteret County Superior Court (Benjamin Alford, J.) Russell Alexander and Wesley Collins for plaintiff; Ross Hardeman for defendant. N.C. App.

Workers’ Compensation

Causation – Head & Neck Injuries – Somatoform Disorder & Malingering Evidence

Even though plaintiff’s doctors testified that her current pain and cognitive impairment were caused by her injuries at work, the Industrial Commission was free to, and did, believe defendants’ experts, who testified that plaintiff appeared to be malingering or suffering from somatoform disorder and that her current problems were not caused by her injuries at work.

We affirm the Commission’s denial of further benefits.

Lassiter v. Keystone Freight Corp. (Lawyers Weekly No. 012-132-18, 19 pp.) (Lucy Inman, J.) Appealed from the Industrial Commission. Daniel Deuterman, Jack Waissen and Zachary Marquand for plaintiff; Susan Briggs and Michele Friedlander Eagle for defendants. N.C. App. Unpub.

Zoning

Standing – Asphalt Plant – Neighbors – Special Damages

Petitioners’ only admissible evidence of special damages was their own testimony that their property would suffer a diminution in value if the Hampton respondents’ asphalt plant were allowed to operate; consequently, petitioners lack standing to seek review of the superior court’s order affirming county’s decision to allow the plant to operate.

Petitioners’ appeal is dismissed.

Henion v. County of Watauga (Lawyers Weekly No. 012-125-18, 8 pp.) (Philip Berger, J.) Appealed from Watauga County Superior Court (John Craig, J.) James Whitlock for petitioners; David Pokela, Kip Nelson and Thomas Terrell for respondents. N.C. App. Unpub.