Supreme Court - Digested Index

11 March 2022

Appeal and Error

Interlocutory order—claims dismissed without prejudice—no substantial right—In an action for declaratory judgment and tortious interference with contract, which was designated a complex business case, plaintiff's cross-appeal from an interlocutory order partially granting defendants' motion to dismiss was dismissed as premature. The order did not affect a substantial right to avoid the risk of inconsistent verdicts in two possible trials where plaintiff's claims were dismissed without prejudice and, therefore, not all relief had been denied. Button v. Level Four Orthotics & Prosthetics, Inc., 380 N.C. 459 (2022)

Preservation of issues—constitutional argument—raised and ruled upon—Plaintiff properly preserved her argument regarding the constitutionality of Chapter 50B where plaintiff's counsel raised the issue before the trial court–by asserting that the statute was unconstitutional based on a recent opinion of the United States Supreme Court, stating that there was no rational basis for the statutory provision at issue, and citing an out-of-state case in support of plaintiff's argument–and obtained a ruling from the trial court. M.E. v. T.J., 380 N.C. 539 (2022)

Preservation of issues—jury instructions—specific request—Defendant failed to properly preserve his challenge to the trial court's jury instructions in his trial for first-degree murder–that the trial court allegedly erred by not instructing that defendant was presumed to have had a reasonable fear of imminent death or great bodily injury–where defendant did not specifically request the instruction but rather simply requested that the trial court instruct the jury in accordance with N.C.P.I. - Crim. 308.10. State v. Benner, 380 N.C. 621 (2022)

Preservation of issues—mandatory joinder—raised for first time on appeal—challenge to N.C. law—Defendant did not properly preserve her mandatory joinder argument–that the opinion of the Court of Appeals declaring a portion of Chapter 50B unconstitutional must be vacated and remanded for the mandatory joinder of the General Assembly pursuant to Civil Procedure Rule 19(d)–where the mandatory joinder issue was first raised by the Court of Appeals' dissenting opinion. Even assuming that Rule 19(d) mandatory joinder may be raised for the first time on appeal, plaintiff's Chapter 50B action for obtaining a domestic violence protective order–in which plaintiff asserted an as-applied constitutional defense to prevent dismissal of her action–did not qualify as a civil action challenging the validity of a North Carolina statute. M.E. v. T.J., 380 N.C. 539 (2022)

Civil Procedure

Voluntary dismissal—amended by hand—functional Rule 60(b) motion—domestic violence protective order action—Where plaintiff dismissed her Chapter 50B domestic violence protective order action but, thirty-nine minutes later, struck through the notice and wrote "I do not want to dismiss this action" on the Notice of Voluntary Dismissal form, the trial court acted within its broad discretion in exercising jurisdiction over the Chapter 50B complaint. Plaintiff's amended notice of dismissal functionally served as a motion for equitable relief under Civil Procedure Rule 60(b), and her later amendment to the complaint, which defendant consented to, functionally served as a refiling. M.E. v. T.J., 380 N.C. 539 (2022)


Tortious interference with contract—specific pleading requirements—no rebuttal to qualified privilege—In a complex business case, where a corporation's former CEO (plaintiff) accused two shareholders and the minority shareholder's managing partner (defendants) of inducing the corporation to violate plaintiff's employment agreement, the trial court properly dismissed plaintiff's claim for tortious interference with contract for failure to state a claim. Plaintiff did not comply with the specific pleading requirements for tortious interference claims where his complaint made conclusory, general allegations that defendants had acted with malice. Further, the complaint failed to rebut the presumption that the shareholders–as corporate "non-outsiders"–acted in the corporation's best interest, and also failed to rebut the qualified privilege afforded to stockholders to interfere with a corporation's contracts with third parties. Button v. Level Four Orthotics & Prosthetics, Inc., 380 N.C. 459 (2022)

Criminal Law

Post-conviction DNA testing—availability after guilty plea—materiality —In a case arising from a fatal shooting in connection with a robbery, defendant's guilty plea to second-degree murder did not disqualify him from seeking post-conviction DNA testing pursuant to N.C.G.S. § 15A-269. Nevertheless, the trial court properly denied defendant's motion for post-conviction DNA testing of the shell casings and projectile found at the crime scene, where he failed to show that the test results would be material to his defense (according to credible eyewitness testimony, defendant was one of two people involved in the crime, and therefore the presence of another's DNA on the shell casings or projectile would not necessarily have exonerated him). State v. Alexander, 380 N.C. 572 (2022)

Post-conviction motions—newly discovered evidence—Beaver factors—satisfied—The trial court did not abuse its discretion by granting defendant, who had been convicted of first-degree murder more than twenty years earlier, a new trial on the grounds of newly discovered evidence pursuant to N.C.G.S. § 15A-1415(c), where defendant satisfied the factors set forth in State v. Beaver, 291 N.C. 137 (1976). Despite some internal inconsistencies in the newly discovered testimony, the court properly found that the testimony was "probably true;" defendant's lawyer exercised due diligence in procuring the testimony–that is, the diligence reasonably expected from someone with limited information about the testimony–by hiring an investigator to track down the witness; the testimony constituted material, competent, and relevant evidence where the State did not object to it and where it was admissible under the residual exception to the hearsay rule (Evidence Rule 803(24)); and the testimony–revealing another person's confession to committing the murder–was of a nature that a different result would probably be reached at a new trial. State v. Reid, 380 N.C. 646 (2022)

Declaratory Judgments

Jurisdiction—actual controversy—former CEO's contractual rights upon termination of employment—In a complex business case, where a corporation's former CEO sought a declaratory judgment setting forth his rights under his employment agreement with the corporation and under various related contracts with the corporation's majority shareholder–and where the determinative issue was whether the corporation terminated his employment with or without cause–the trial court lacked subject matter jurisdiction over the CEO's declaratory judgment claim against the majority shareholder. The complaint failed to show an actual controversy between the parties that was practically certain to result in litigation, where the decision to terminate the CEO lay with the corporation, the complaint did not allege that the CEO or the majority shareholder had attempted to exercise their rights under the various contracts, and it was impossible to speculate on appeal whether any future acts by the shareholder would constitute a breach. Button v. Level Four Orthotics & Prosthetics, Inc., 380 N.C. 459 (2022)


First-degree murder—self-defense—jury instructions—In the first-degree murder prosecution for defendant's fatal shooting of an unarmed man in defendant's home, the trial court did not err when it declined to instruct the jury in accordance with North Carolina Pattern Jury Instruction (N.C.P.I.) - Crim. 308.10 where the trial court adequately conveyed the substance of defendant's requested instruction to the jury. The instructions delivered to the jury stated that defendant had no duty to retreat, and the N.C.P.I.'s language concerning defendant's right to "repel force with force regardless of the character of the assault" was not required under the circumstances. Further, defendant failed to establish a reasonable possibility that the outcome would have been different if the trial court had issued defendant's requested jury instructions. State v. Benner, 380 N.C. 621 (2022)

Indictment and Information

Attempted armed robbery—victims not specifically named—pleading requirements—An indictment for attempted armed robbery was not fatally defective where it designated "employees of the Huddle House located at 1538 NC Highway 67 Jonesville, NC" as victims without specifically naming them. The indictment satisfied the criminal pleading requirements set forth in N.C.G.S. § 15A-924(a)(5) (requiring a plain and concise statement asserting facts supporting each element of the crime), and it did not fail to protect defendant from double jeopardy by omitting the victims' names, especially where the Criminal Procedure Act had relaxed the stricter common law pleading rules. In fact, the reference to a particular group of people protected defendant from any future prosecutions involving any individual from that group. State v. Oldroyd, 380 N.C. 613 (2022)


Personal—long-arm statute—due process—CEO's contractual rights after termination—extent of control by shareholders—In a complex business case, where the parties disputed a former CEO's rights under his employment agreement with a North Carolina corporation and under various related contracts with the corporation's majority shareholder (a Florida company), and where the CEO accused the Florida company and the minority shareholder's managing partner of inducing the corporation to terminate the CEO for cause, the trial court properly exercised personal jurisdiction over the Florida company and the managing partner. To varying degrees, the Florida company–through one of its managers, who also acted as the North Carolina corporation's sole director–and the managing partner exercised control over the North Carolina corporation and were actively involved in negotiating terms of the contracts at issue and in firing the CEO, thereby satisfying the "substantial activity" requirement under North Carolina's long-arm statute and the "minimum contacts" requirement for due process. Button v. Level Four Orthotics & Prosthetics, Inc., 380 N.C. 459 (2022)

Public Officers and Employees

State Health Plan amendments—constitutional contractual impairment claim—existence of contractual obligation—In an action asserting that amendments to the State Health Plan (SHP) removing premium-free options for retired state employees violated both the federal and state constitutions (the Contracts Clause and the Law of the Land Clause, respectively), retirees had a vested right to the noncontributory health plan benefits that existed at the time they were hired and for which they met the eligibility requirements because employees relied on the promise of the State's obligation to provide those benefits when they entered into the employment contract. However, summary judgment was inappropriate where there were genuine issues of material fact regarding whether the amendments constituted a substantial contractual impairment–the determination of which required an analysis of the relative value of different health plans offered at different times–and, if so, whether the impairment was reasonable and necessary to serve an important public purpose. Therefore, the matter was remanded for further factual findings by the trial court. Lake v. State Health Plan for Tchrs. & State Emps., 380 N.C. 502 (2022)

Unemployment Compensation

Good cause—attributable to employer—employee's burden—Petitioner, a former service technician for a security company, was disqualified from receiving unemployment benefits where, although he had good cause to leave his employment, he failed to carry his burden of showing that his resignation was attributable to his employer. In response to petitioner's ongoing knee pain, the employer had made an out-of-state administrative position available and attempted to give petitioner assignments that were less strenuous on his knees; however, petitioner rejected the out-of-state position, did not take additional Family and Medical Leave, and chose to resign. In re Lennane, 380 N.C. 483 (2022)

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