Administrative law judge—standard for deciding a contested case—water pollutant permit—In a contested case that arose after the Department of Environmental Quality (DEQ) issued a permit to a construction materials supplier allowing it to discharge mining wastewater into tributaries in Blounts Creek, the administrative law judge (ALJ) properly affirmed the permit's issuance and determined that DEQ had adequately ensured the permit's compliance with the "biological integrity standard" for surface waters under the N.C. Administrative Code. Specifically, the ALJ met the standard found in N.C.G.S. § 150B-34(a) for deciding contested cases by properly: making findings of fact (unchallenged on appeal) based upon the preponderance of the evidence; determining that the biological integrity standard fell within DEQ's "specialized knowledge"; giving "due regard" to DEQ's "demonstrated knowledge and expertise" with respect to the relevant facts; determining that DEQ's interpretation of the biological integrity rules was reasonable and consistent with the rules' plain language; and applying DEQ's interpretation of the biological integrity rules to the facts surrounding the permit application. Sound Rivers, Inc. v. N.C. Dep't of Env't Quality , No. 306A20 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Custodial interrogation—murder by torture of child victim—defendant's statements at hospital—extent of restraint—In defendant's capital trial for murder by torture of a child victim and related charges, the trial court correctly concluded that defendant was not in custody for purposes of Miranda when he made incriminating statements to law enforcement officers at the hospital where he had brought the victim. Defendant had not been restrained to the extent associated with formal arrest where, although he was grabbed by a nurse as he attempted to leave and pushed into a room and told not to leave prior to the arrival of law enforcement, he was subsequently told by officers that he was not under arrest, the door to the room was left open for part of his questioning, and he was not accused of anything or physically restrained in any manner. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Breach of contract—express terms—summary judgment—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court erred by granting defendants' motion for summary judgment on plaintiffs' breach of contract claim as related to the Asset Purchase Agreement's Independent Milestone Provision, which provided that satisfaction of the criteria of one earnout milestone was not contingent on satisfaction of the criteria of any other milestone. Plaintiffs presented evidence tending to support their assertion that defendants conditioned certain milestones on the completion of others, in breach of the express terms of the contract. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Breach of contract—implied covenant of good faith and fair dealing—contractual gap—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err by granting defendants' motion for summary judgment on plaintiffs' breach of contract claims as related to certain sections of the Asset Purchase Agreement that permitted defendants to "reasonably determine" completion of the first and second software development earnout milestones. Because the tasks required for the milestones were not completed, defendants reasonably determined that the milestones had not been met. Where the contract was not silent on the issue, plaintiffs' arguments regarding the implied covenant of good faith and fair dealing were misplaced. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Breach of contract—third-party sales—summary judgment—remand—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court erred by granting defendants' motion for summary judgment on plaintiffs' breach of contract claim as related to the Asset Purchase Agreement's External Sales Provision, which concerned the sale of licenses to plaintiffs' software by defendants to third parties. Because defendants' Master Services Agreement (MSA) with a third-party pharmaceutical company included the use of the software and could be an "External Sale" under the Asset Purchase Agreement, the issue was remanded to the trial court for determination of whether the MSA was drafted such that the third-party company was required to pay consideration to acquire and use a license to plaintiffs' software. In addition, the covenant of good faith and fair dealing was inapplicable to this issue. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Capital murder prosecution—preservation issues—The preservation issues defendant raised on appeal from his convictions for first-degree murder and related charges and his sentence of death were rejected by the appellate court as having no merit based on precedent. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Murder—death penalty—not disproportionate or arbitrary—Defendant's sentence of death in a murder prosecution for the killing of a young child was not disproportionate, excessive, or arbitrary where, after defendant was convicted of first-degree murder based on murder by torture and the felony murder rule based upon the felonies of first-degree kidnapping, sexual offense with a child, and felony child abuse inflicting serious bodily injury, and was also convicted of each of those three felonies, the jury found the existence of all three aggravating factors submitted to it, which were supported by the record. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Complex business case—third discovery request—unduly burdensome—remand—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err in denying plaintiffs' Third Discovery Request. The trial court complied with Business Court Rule 10.9 and Civil Procedure Rule 26, and the Supreme Court rejected as baseless plaintiffs' argument that the trial court converted an informal and required email request into a motion to compel. However, given the Court's holding on another issue regarding the parties' contract, the question of what further discovery may be appropriate was open for the trial court to consider on remand. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Cumulative error—murder by torture of child victim—inflaming jury's passion—prejudice analysis—In defendant's capital trial for murder by torture of a child victim and related charges, where each of defendant's evidentiary challenges were rejected on appeal–including that the State introduced an excessive number of photographs of the victim's injuries, that some photos were needlessly shown during the testimony of more than one witness, and that witnesses were erroneously allowed to testify to their emotional reactions upon seeing the extent of the victim's injuries–there was no cumulative, prejudicial error in the trial court's evidentiary decisions taken as a whole given the overwhelming evidence of defendant's guilt. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Expert testimony—murder by torture of child victim—bite marks—abuse of discretion analysis—In defendant's capital trial for murder by torture of a child victim, the trial court did not abuse its discretion by allowing the State's expert witness in forensic dentistry to testify regarding numerous bite marks found on the victim's body–which he attributed to an adult human–even though three physicians had already testified with their opinions that certain marks on the victim's body were human bite marks made within a certain number of days prior to her arrival at the hospital. There was no meaningful dispute that defendant caused the marks on the victim's body since he had been her sole caretaker during the time period in question. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Expert testimony—murder by torture of child victim—emotional reactions from medical and law enforcement personnel—In defendant's capital trial for multiple charges including murder by torture and felony child abuse inflicting serious bodily injury, the trial court did not err by allowing various medical personnel and law enforcement officers to testify regarding their emotional reactions immediately upon seeing the extent of the victim's injuries after defendant brought her to the hospital. The probative value of the evidence was not substantially outweighed by the danger of unfair prejudice where the witnesses' reactions provided context to the jury regarding the severity of the victim's injuries in relation to the types of cases the witnesses usually saw in the course of their work. Moreover, defendant could not demonstrate prejudice given the overwhelming evidence of his guilt and of the victim's numerous severe injuries that she suffered over an extended period while in defendant's sole care. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Expert testimony—murder by torture—question of whether child victim was tortured—abuse of discretion analysis—In defendant's capital trial for murder by torture of a child victim, the trial court did not abuse its discretion by allowing two expert witnesses to testify (one during the guilt-innocence phase, the other during sentencing) regarding whether the victim was tortured. Where the term "torture" is not a legal term of art, testimony from the first witness (accepted as an expert in pediatrics and child abuse) that the victim's extensive and severe injuries were consistent with torture did not improperly invade the province of the jury and was properly admitted as being based on the expert's training and specialized knowledge. Further, testimony at sentencing from the second witness (accepted as an expert in forensic pediatrics with a specialization in child abuse and maltreatment) was not cumulative or unfairly inflammatory where that expert's opinions–in general with regard to the state of mind of a person who tortures and specifically that the victim's injuries were not accidental–were similarly based on a proper foundation of specialized training and background. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Mental health records—under seal—in camera review by appellate court—no exculpatory evidence—On appeal after defendant's capital trial for murder by torture of a child victim and related charges, in which the trial court ordered mental health records of the victim's mother to be placed under seal–after allowing some of the records to be released to defendant–the Supreme Court reviewed the sealed records in camera upon defendant's request and determined that they contained no exculpatory or impeaching evidence requiring disclosure. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Opening the door—cell phone evidence—abuse of discretion analysis—prejudice analysis—In defendant's murder trial that resulted in his conviction for voluntary manslaughter, assuming the State opened the door to evidence found on the victim's cell phone after the crime occurred, the trial court did not abuse its discretion in refusing to allow defense counsel to question witnesses about the cell phone evidence showing the victim with firearms and implicating him in acts of violence. Striking a balance that was fair to the State and defendant, the trial court did allow defense counsel to ask the victim's father whether the detective had shared the contents of the victim's cell phone with him, which invited the jury to doubt the father's testimony that he did not know anything about the victim possessing a firearm. Even if the trial court did abuse its discretion, exclusion of the cell phone evidence did not prejudice defendant because defendant did not know what was on the victim's cell phone at the time of the shooting, and therefore the evidence did not speak to whether defendant's use of force in self-defense was reasonable under the facts as they appeared to him at the time; further, there was no evidence that the victim possessed a gun when defendant killed him, and substantial evidence–including the gunshot wounds in the back of his head and his back–showed that the victim was attempting to flee when defendant fired his last two shots. State v. McKoy , No. 71A22 (N.C. Sep. 1, 2023) (Author: Justice Trey Allen)

Photographs—murder by torture—child victim—number, size, and manner of display—In defendant's capital trial for multiple charges including murder by torture, sexual offense with a child, and felony child abuse inflicting serious bodily injury, the trial court did not abuse its discretion by allowing the State to introduce eighty-eight photographs of the child victim's body and injuries–some of them close-ups–by showing them on a large monitor located close to the jury, where the photographs were more probative than prejudicial because they were: relevant to the offenses charged and to defendant's credibility, used to illustrate the respective testimonies of different witnesses, and not needlessly cumulative or excessive given evidence that the victim suffered at least 144 separate injuries over an extended period of time. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Relevance—murder trial—evidence of other possible perpetrators—not exculpatory—At the joint trial of two defendants for first-degree murder and other offenses arising from a fatal shooting, the trial court did not err in excluding evidence that defendants asserted showed two other people had committed the crimes for which they were on trial. Although the excluded evidence did suggest the possible involvement of other perpetrators, and was therefore relevant for purposes of Evidence Rule 401, it was still inadmissible where it did not also fully exculpate defendants (especially given the direct evidence of defendants' guilt, which included cellular phone data placing them at the crime scene and an eyewitness's identification of defendants both in court and during a pretrial photographic lineup). State v. Abbitt , No. 334A21 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Dismissal—fraud and fraudulent inducement—failure to meet particularity requirement—broad allegations—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err by dismissing plaintiffs' claims for fraud and fraudulent inducement based on representations allegedly made before the execution of the Asset Purchase Agreement and not involving the Non-Binding Letter of Intent. The claims were not pleaded with sufficient particularity to satisfy Civil Procedure Rule 9(b) where the complaint did not specify the time, place, particular content of the alleged representation, or the person who made the alleged representation. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Dismissal—fraud by omission and promissory fraud—failure to state a claim—failure to meet particularity requirement—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err by dismissing plaintiffs' claims of fraud by omission and promissory fraud pursuant to Civil Procedure Rules 12(b)(6) and 9(b). In the first place, plaintiffs did not raise those claims in their amended complaint; furthermore, plaintiffs failed to satisfy the particularity requirement of Rule 9(b). Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Dismissal—negligent misrepresentation—failure to meet particularity requirement—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err by dismissing plaintiffs' negligent misrepresentation claim for failure to satisfy the heightened pleading standard of Civil Procedure Rule 9(b) where the complaint did not allege the time, place, speaker, or specific contents of the alleged misrepresentation. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Intentional misrepresentation and fraudulent inducement—attempt to amend purchase agreement—amendments not made—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err by granting summary judgment in favor of defendants on plaintiffs' claims for intentional misrepresentation and fraudulent inducement based upon statements made by defendants' chief executive officer and senior vice president of IT regarding possible amendments to the Asset Purchase Agreement (APA). Evidence in the record supported defendants' representations that the company was attempting to amend the APA, and failure to reach an agreement on the amendment did not mean that defendants' representations were false at the time they were made. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Intentional misrepresentation and fraudulent inducement—letter of intent—non-binding—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err by granting summary judgment in favor of defendants on plaintiffs' claims for intentional misrepresentation and fraudulent inducement based on representations contained in the Non-Binding Letter of Intent (LOI). The LOI, which by its express terms was non-binding and not to be relied upon, could not form the basis of plaintiffs' fraud claims; furthermore, plaintiffs cited no authority in which a court has recognized a claim arising out of representations contained in a letter of intent. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Second-degree murder—jury instructions—self-defense—aggressor doctrine—sufficiency of evidence—Defendant was not entitled to a new trial on her second-degree murder charge because the trial court properly instructed the jury on the aggressor doctrine where–considering the evidence in the light most favorable to the State and giving the State the benefit of the doubt wherever the evidence conflicted–the jury could reasonably infer that defendant was acting as an "aggressor" at the time that she allegedly shot the victim in self-defense. Notably, although the victim (defendant's lover) had initiated the confrontation leading up to his death by forcefully entering defendant's apartment against her wishes, the State's evidence suggested that defendant shot him in the back while he was on his way out and already six feet away from her. State v. Hicks , No. 136PA22 (N.C. Sep. 1, 2023) (Author: Justice Anita Earls)

Motion to disqualify—murder trial—judge previously prosecuted defendant's mother—potential witness—appearance of impropriety—In defendant's capital trial for murder by torture of a child and related charges, defendant's motion to disqualify the trial judge (which was assigned to another judge for ruling) was properly denied where, although the presiding judge had been the prosecutor twenty years earlier at defendant's mother's trial for allegedly hiring someone to kill defendant's father (for which she was acquitted), there was no indication–despite defendant's assertion that the judge was a potential witness with regard to the childhood trauma that defendant experienced as a result of family dysfunction–that the judge had knowledge of any evidence that would be relevant to defendant's defense, nor was there any actual bias or the risk of impartiality based on the judge's interactions with the family in the past. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Selection—Batson challenge—prima facie showing—In defendant's capital trial for murder by torture of a child victim and related charges, defendant did not establish a prima facie case of intentional discrimination pursuant to Batson after the prosecutor used peremptory challenges early in the jury selection process to dismiss two Black prospective jurors, where certain factors–including the racial identification of defendant, the victim, and primary witnesses–did not support defendant's argument and where the trial court's discretionary decision to exclude a report analyzing historical jury strikes as hearsay was not clearly erroneous. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Selection—excusal for cause—reservations about death penalty—empathy for drug users—In defendant's capital trial for murder by torture of a child victim and related charges, the trial court did not abuse its discretion or violate defendant's right to a fair and impartial jury by excusing two potential jurors for cause where the court had the opportunity to hear the jurors in person and assess their ability to follow the law. Although the first juror equivocated about whether his religious convictions and conscience would allow him to impose the death penalty, he eventually indicated that his ability to follow the law would be substantially impaired even if he was convinced beyond a reasonable doubt that defendant was guilty and that punishment by death was warranted. Similarly, the second juror dismissed for cause expressed reservations about whether he could impose death as punishment and, given his own past experiences and substance abuse, stated that he would have trouble being objective and impartial as it related to drug use, which was forecast to be an issue in the case. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Selection—gender discrimination—prima facie showing—In defendant's capital trial for murder by torture of a child victim and related charges, the trial court did not clearly err by determining that defendant had not established a prima facie case of intentional discrimination based on gender after the prosecutor used a peremptory challenge early in the jury selection process to dismiss a Black female prospective juror, where there were twice as many females as males in the potential juror pool and, at the time of defendant's challenge, four of the five jurors already seated were women. Further, a statement by one of the prosecutors indicating a lack of familiarity with the law prohibiting gender-based juror strikes was not, by itself, sufficient to demonstrate intentional discrimination. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Amendments—undue delay and material prejudice—previous extensive revisions, discovery closed, full briefing on motion to dismiss—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not abuse its discretion in denying, based on undue delay and material prejudice to defendants, plaintiffs' motion for leave to file a Second Amended Complaint. Plaintiffs had previously amended their complaint with extensive revisions; discovery had closed, with thousands of documents exchanged; and the parties had fully briefed the motion to dismiss plaintiffs' Amended Complaint. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Breach of contract and fraud claims—termination of employment—substantial evidence—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err by granting summary judgment in favor of defendants on plaintiffs' claims under the Unfair and Deceptive Trade Practices Act (UDTPA). First, plaintiffs' UDTPA claims (aside from the claim regarding plaintiff founder's termination) were simply a repackaging of their breach of contract and fraud claims–essentially alleging that defendants had failed to perform under the terms of the contract, which did not support a finding of the required "substantial aggravating circumstances." In addition, when viewed in the light most favorable to plaintiffs, the record did not contain evidence creating a genuine issue of material fact. As for plaintiffs' other UDTPA claim–that co-founder plaintiff's termination was unfair–plaintiffs failed to overcome the high threshold to surpass the at-will employment presumption. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)