Court of Appeals Opinions

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Filed: 21 January 2020
Mandate: 10 February 2020
Zip File of Published Opinions

Case Title / Description
Common Cause v. Forest  (18-870 - Published)   Author: Judge Richard Dietz
Swiftly enacted state legislation; constitutional challenge; meaning of Right to Instruct Clause
Hampton v. Hearn  (19-378 - Published)   Author: Judge Phil Berger Jr.
medical malpractice; proximate cause; intervening negligence
In re: H.D.H.  (19-490 - Published)   Author: Judge Donna Stroud
Probation, Extension, Written Findings
Lawrence v. Lawrence  (19-668 - Published)   Author: Judge John Tyson
Petition to partition; reimbursement to co-tenant; statutes of limitations: NCGS 1-52(1) and NCGS 1-56; burden on summary judgment; presumption of validity of marriage; laches as an affirmative defense, NCGS 1A-1, Rule 8(c).
Maness v. The Vill. of Pinehurst  (19-157 - Published)   Author: Judge Richard Dietz
Unemployment benefits; ambiguous employee statements or actions; statutory meaning of left work
State v. Campbell  (18-998 - Published)   Author: Judge John Arrowood
sufficiency of evidence for appellate review - motion to dismiss appeal; racial discrimination in use of peremptory challenges in jury selection - prima facie claim - Batson v Kentucky
State v. Jones  (19-281 - Published)   Author: Judge Christopher Brook
probation revocation; probationer's right to confrontation at revocation hearing
State v. Meader  (19-554 - Published)   Author: Judge Reuben Young
Voluntary Intoxication, Jury Instruction
State v. Scott  (19-250 - Published)   Author: Judge John Tyson
Second-degree murder; NCGS 8-53; NCGS 90-21.20B(a1); malice; excessive speed; reckless driving.
Unpublished Opinions
21 January 2020  - Rule 30e - Zip File of Unpublished Opinions
Mandate: 10 February 2020 

Anton v. Anton (19-549 - Unpublished)   Author: Judge Allegra Collins
will caveat; undue influence; interlocutory order does not affect substantial right; risk of inconsistent verdicts
Berens v. Berens (19-306 - Unpublished)   Author: Judge Chris Dillon
child support; post-separation support; alimony; attorneys? fees; imputed income
Clark v. US Airways, Inc. (19-707 - Unpublished)   Author: Judge John Tyson
Temporary total disability; change in conditions; attorney's fees; NCGS 97-88; bad faith.
In re J.N.I., Jr., J.N.I., T.I.I. (19-86 - Unpublished)   Author: Judge Tobias Hampson
Termination of Parental Rights; Ineffective Assistance of Counsel.
In re VT (19-297 - Unpublished)   Author: Judge Tobias Hampson
Visitation; Guardianship; Permanency planning order; Insufficient findings of fact.
In re X.E.R.. (19-233 - Unpublished)   Author: Judge Donna Stroud
termination of parental rights, likelihood of adoption
In re: Rieger (19-304 - Unpublished)   Author: Judge Lucy Inman
Guardian of the Estate Chapter 35A Transfer of venue
In re: Z.S.B. (18-1105 - Unpublished)   Author: Judge Donna Stroud
Termination of parental rights, findings of fact
Lee v. Allen (19-265 - Unpublished)   Author: Judge Christopher Brook
child and spousal support; means to defray expense of defense; findings required for attorney's fee award; necessity of findings regarding litigant's assets or debts
Paez v. Paez (18-1206 - Unpublished)   Author: Judge Hunter Murphy
Separation agreement; Specific performance; Credit
State v. Clyde (19-82 - Unpublished)   Author: Judge John Tyson
Second-degree murder; plain error; hearsay; improper closing argument; IAC; prior consistent statement; defendant's statments after Miranda waiver.
State v. Davis (19-280 - Unpublished)   Author: Judge Allegra Collins
State v. Hall (18-1290 - Unpublished)   Author: Judge Hunter Murphy
Flight instruction; Lesser included offense; Voluntary manslaughter.
State v. Horne (19-249 - Unpublished)   Author: Judge Tobias Hampson
Felony child abuse
State v. Phifer (19-541 - Unpublished)   Author: Judge John Tyson
Illegal sentence; sentence after remand; NCGS 15A-1335.
State v. Shell (19-146 - Unpublished)   Author: Judge Chris Dillon
possession with intent to sell or distribute methamphetamine; motion to suppress; consent to search; search and seizure
State v. Thomas (19-399 - Unpublished)   Author: Judge Phil Berger Jr.
bench trial; confrontation rights; second-degree burglary; sufficiency of the evidence
State v. Washington (19-547 - Unpublished)   Author: Judge Allegra Collins
felony identity theft; name and date of birth; identifying information; In re Civil Penalty
Wrubluski v. Wrubluski (19-467 - Unpublished)   Author: Judge Chris Dillon
child support; post-separation support; attorneys? fees; parenting agreement; child support arrearages

Filed: 7 January 2020
Mandate: 27 January 2020
Zip File of Published Opinions

Case Title / Description
Akshar Distribution Co. v. Smoky's Mart, Inc.  (19-316 - Published)   Author: Judge Allegra Collins
Default judgment as Rule 37 discovery sanction; Rule 59 motion tolled period to notice appeal; argument to reverse default judgment unpreserved; retirement of trial judge rendered Rule 59 motion unreviewable below; Rule 59 motion denied
Brown v. Fayetteville State Univ.  (19-13 - Published)   Author: Judge Tobias Hampson
Career State employee; After-acquired-evidence doctrine (McKennon rule); Procedural due process requirements.
Causey v. Cannon Sur., LLC  (19-27 - Published)   Author: Judge Allegra Collins
void confession of judgment; confession of judgment violated seizure order; N.C. Captive Insurance Act; judicial estoppel
Copeland v. Amward Homes Of N.C., Inc.  (18-1021 - Published)   Author: Judge Richard Dietz
Negligence; Construction Equipment Roll-Away; Liability of Real Estate Developer; Theories of Legal Duty
Deanes v. Deanes  (19-120 - Published)   Author: Judge Tobias Hampson
Child custody modification; Child support modification; Civil contempt
Deminski v. The State Bd. Of Educ.  (18-988 - Published)   Author: Judge Donna Stroud
Constitutional right to Education, Leandro, DOT v. Charlotte-Mecklenburg Board of Education
Gen. Fid. Ins. Co. v. WFT, Inc.  (18-1103 - Published)   Author: Judge Valerie Zachary
corporate fraud; fraudulent transfer; piercing the corporate veil; unfair and deceptive trade practices
Griffin v. Absolute Fire Control  (19-461 - Published)   Author: Judge Christopher Brook
workers compensation; disability and suitability of substitute employment; makework
In re: Harper  (19-326 - Published)   Author: Judge Valerie Zachary
standard of review; estate proceedings; special proceedings
In re: Harper  (19-327 - Published)   Author: Judge Valerie Zachary
standard of review; estate proceedings; special proceedings
In re: Lowe's Home Ctrs., LLC  (19-125 - Published)   Author: Judge Hunter Murphy
Property Tax; Revaluation; Misapplication
In re: S.C.  (19-333 - Published)   Author: Judge Christopher Brook
Protection of the Abused, Neglected, or Exploited Disabled Adult Act; petition for protective services; petition contents required
Myers v. Myers  (18-1210 - Published)   Author: Judge Donna Stroud
Expert Testimony, NC Rule of Civil Procedure 26, Alimony
Nanny's Korner Day Care Ctr., Inc. v. NC Dep't of Health & Hum. Servs.  (19-416 - Published)   Author: Judge Allegra Collins
exhaustion of administrative remedies; Tort Claims Act; statute of limitations
Paynich v. Vestal  (19-185 - Published)   Author: Judge Allegra Collins
child custody modification order; access to child's medical, school, and counseling records; supervised visitation in best interest of child
State of NC v. Wasco, LLC  (19-355 - Published)   Author: Judge Christopher Brook
res judicata; law of the case; impossibility of compliance with injunction; failure to join necessary party; untimely appeal from motion for reconsideration
State v. Braswell  (19-434 - Published)   Author: Judge Christopher Brook
sufficiency of prior record level evidence; discretionary writs; certiorari
State v. Carter  (19-44 - Published)   Author: Judge Allegra Collins
identity theft; motion to dismiss for insufficient evidence; jury instruction on false, contradictory, or conflicting statements
State v. Crane  (19-369 - Published)   Author: Judge Allegra Collins
driving while impaired; invited error
State v. Hoque  (19-134 - Published)   Author: Judge Allegra Collins
motion to dismiss for insufficient evidence; driving while impaired; resisting a public officer; possession of open container while driving; motion to suppress blood test results; officers' use of force during blood draw; body-camera recordings
State v. Schalow  (19-215 - Published)   Author: Judge Allegra Collins
Third prosecution arising out of same alleged conduct; presumption of prosecutorial vindictiveness; joinable offenses; dismissal required
Unpublished Opinions
7 January 2020  - Rule 30e - Zip File of Unpublished Opinions
Mandate: 27 January 2020 

Chappell v. Chappell (19-11 - Unpublished)   Author: Judge Valerie Zachary
divorce; equitable distribution; classification; valuation
Clement v. Cumberland Cty. (19-414 - Unpublished)   Author: Judge Phil Berger Jr.
Zoning Ordinance, Bona Fide Farm Exception, Administrative Remedies
Conde v. Jessup (19-16 - Unpublished)   Author: Judge Valerie Zachary
DMV; implied-consent offense; reasonable grounds
Crop Prod. Servs., Inc. v. Pearson (19-260 - Unpublished)   Author: Judge Lucy Inman
Breach of warranty; negligent misrepresentation; summary judgment; expert opinion
In Re D.B. (19-387 - Unpublished)   Author: Judge Allegra Collins
involuntary commitment; dangerous to self; serious physical debilitation
In re: A.D.S. (19-258 - Unpublished)   Author: Judge Allegra Collins
injury to real property; juvenile delinquent adjudication; motion to dismiss for insufficient evidence
In re: Hazelwood (19-121 - Unpublished)   Author: Judge Donna Stroud
Jurisdiction, Indictment
In re: K.A. (19-455 - Unpublished)   Author: Judge Phil Berger Jr.
Juvenile, Adjudication, Right to Cross-examine
Kanish, Inc. v. Taylor (19-482 - Unpublished)   Author: Judge John Tyson
Revocation and purchase contract; no acceptance by buyer; electronic signature statute, NCGS 66-315; jury's verdict; entry of default; jury instruction.
Leftwich v. Morris (19-656 - Unpublished)   Author: Judge John Tyson
Interlocutory appeal; compulsory counterclaim; motion to amend; substantial right.
Martin v. Irwin (19-559 - Unpublished)   Author: Judge John Arrowood
personal jurisdiction; N.C.R. Civ. P. 60(b)(4); N.C.R. Civ. P. 4(j); insufficient service of process and personal jurisdiction
Sikes v. Farrell (19-238 - Unpublished)   Author: Judge Chris Dillon
Medical Malpractice; Rule 9(j); Rule 12(b)(6); North Carolina Rules of Civil Procedure; Rule 41; voluntary dismissal; Rule 15; relation back; motion to amend complaint; statute of limitations; Rule 702; North Carolina Rules of Evidence negligence; standard of care; review by expert
State v. Collier (19-174 - Unpublished)   Author: Judge Tobias Hampson
second-degree murder jury instruction; sentencing classification
State v. Curlee (19-451 - Unpublished)   Author: Judge Phil Berger Jr.
Plain error, voluntary intoxication, malicious conduct by a prisoner
State v. Davis (19-227 - Unpublished)   Author: Judge Lucy Inman
Harmless beyond a reasonable doubt Closing argument Improper Grossly improper
State v. Garcia (19-360 - Unpublished)   Author: Judge Christopher Brook
ineffective assistance of counsel; absence of request for limiting instruction on use of 404(b) evidence; motion for appropriate relief
State v. Hernandez-Gonzalez (19-448 - Unpublished)   Author: Judge John Arrowood
NCGS § 7A-271, 272; NCGS § 15A-641(c); original jurisdiction of superior court to hear misdemeanor by presentment
State v. Herring (19-221 - Unpublished)   Author: Judge John Tyson
Attempted firs-degree murder; prior corroboratory statements; Rule 404(b); contents of cell phone browsing history; sufficiency of indictment.
State v. Hewitt (19-382 - Unpublished)   Author: Judge Christopher Brook
expert opinion of identity of controlled substance; plain error admitting expert testimony; clerical error in judgment
State v. Jones (19-14 - Unpublished)   Author: Judge Donna Stroud
motion to dismiss, trafficking by possession, trafficking by transportation
State v. Litaker (19-189 - Unpublished)   Author: Judge Phil Berger Jr.
Motion to Dismiss, Causal Nexus, Possession of Firearm by Felon
State v. Littlejohn (19-347 - Unpublished)   Author: Judge Hunter Murphy
Dismissal; Preservation; Fatal Variance; Ineffective Assistance of Counsel
State v. Locklear (19-487 - Unpublished)   Author: Judge Christopher Brook
injury to personal property; indictments; facial validity of indictments; fatal variance between indictment and evidence; sufficiency of factual basis for guilty plea
State v. Lofton (17-716-2 - Unpublished)   Author: Judge Linda McGee
motion to dismiss, sufficiency of the evidence, attempt to manufacture controlled substance
State v. Martin (19-130 - Unpublished)   Author: Judge Hunter Murphy
Court costs; Civil Judgment; Incomplete record
State v. McCord (19-517 - Unpublished)   Author: Judge Christopher Brook
probation violation; sufficiency of grounds for revocation of probation; clerical error in judgment
State v. Midgette (19-463 - Unpublished)   Author: Judge John Tyson
First-degree murder; felony murder; robbery with a dangerous weapon; motion to dismiss; limitation of cross-examination; Confrontation Clause, Rule 404(b); plain error review.
State v. Mize (19-161 - Unpublished)   Author: Judge Allegra Collins
statutory rape; jury instruction on impeachment or corroboration by prior statement; no prejudicial error
State v. Moore (19-301 - Unpublished)   Author: Judge Lucy Inman
Sale or Delivery of Marijuana; Arresting Judgment; Prior Record Level Stipulation
State v. Moore (19-183 - Unpublished)   Author: Judge Valerie Zachary
sentencing; remand
State v. Myers (19-173 - Unpublished)   Author: Judge Lucy Inman
Carrying A Concealed Gun; Motion to Dismiss; Insufficiency of the Evidence; Operability; Jury Instruction; Plain Error
State v. Patrick (19-571 - Unpublished)   Author: Judge Christopher Brook
legality of search of probationer; motion to suppress
State v. Phoeun (19-190 - Unpublished)   Author: Judge Valerie Zachary
custodial interrogation; Miranda warnings; motion to suppress
State v. Simmons (19-519 - Unpublished)   Author: Judge Reuben Young
Evidence, Mistrial, Prejudice, Improper Comment, Self Defense, Aggressor Doctrine
State v. Webster (19-257 - Unpublished)   Author: Judge John Arrowood
dismissing and replacing juror after jury has been empaneled; NCGS § 15A-1215(a); lay witness opinion testimony under Rule of Evidence 701
State v. Wheeler (18-1272 - Unpublished)   Author: Judge Wanda Bryant
State v. Whitmire (19-550 - Unpublished)   Author: Judge John Arrowood
absconded from probation; NCGS ? 15A-1343(b)(3a)
State v. Williams (18-1130 - Unpublished)   Author: Judge Linda McGee
willful violation of conditions of probation, aggravating factor, N.C.G.S. 15A-1022.1
Steele-Correll v. Price (19-551 - Unpublished)   Author: Judge John Arrowood
N.C.R. Civ. P 60(b)(4), 4(j), (j2); abuse of discretion; default judgment; service of process; motion for relief from judgment
Summit & Crowne Capital Partners, LLC v. Korth Direct Mortg., LLC (19-413 - Unpublished)   Author: Judge Chris Dillon
Motion to Dismiss; Personal Jurisdiction; Loan broker commission; interlocutory order; substantial right; affidavits; opposing affidavits; verified pleading; parent company; alter ego; minimum contacts; contract formation; contractual relationship
The Tr. For Tradewinds Airlines, Inc. v. Soros Fund Mgmt. LLC (19-356 - Unpublished)   Author: Judge John Tyson
Subject matter jurisdiction; contacts with state; piercing corporate veil; agency; default judgment; motions to dismiss