Preservation of issues—motion to dismiss for insufficiency of evidence—specific argument at trial—all sufficiency issues preserved—A criminal defendant's timely motion to dismiss and renewal of the motion preserved for appellate review any and all sufficiency of the evidence challenges; thus, even though defendant argued at trial that the evidence was insufficient to support allegations that sexual activity had occurred, he was entitled to argue on appeal that the evidence was insufficient to support the allegation that he was a "teacher" under the charging statute (N.C.G.S. § 14-27.7). State v. Smith , 375 N.C. 224 (2020) (Author: Chief Justice Paul Newby)

Affidavits—person residing outside the state—signed under penalty of perjury—notarization not required —In a child support case, the trial court erred by declining to admit into evidence the affidavit of plaintiff-mother, who resided outside of the United States, on the basis that the affidavit was not notarized and plaintiff was not present to be examined. Pursuant to the special evidentiary rule in N.C.G.S. § 52C-3-315(b) (part of the Uniform Interstate Family Support Act), the affidavit was admissible because plaintiff signed it under penalty of perjury, and notarization was not required. Gyger v. Clement , 375 N.C. 80 (2020) (Author: Chief Justice Paul Newby)

Crossclaims—dismissal of original action—dismissal of crossclaims not required—The Business Court erred by concluding that a defendant's crossclaims against a co-defendant were automatically subject to dismissal simply because plaintiff's claims were being dismissed. The dismissal of an original action does not, by itself, require the dismissal of crossclaims that meet the requirements of Civil Procedure Rule 13(g) (with the exception of certain types of crossclaims that require the continued litigation of the original claim in order to remain viable). Orlando Residence, Ltd. v. Alliance Hosp. Mgmt., LLC , 375 N.C. 140 (2020) (Author: Justice Mark Davis)

Dismissal with prejudice—discretion of trial court—protracted litigation—The trial court did not abuse its discretion by dismissing defendant's crossclaims with prejudice–rather than without prejudice–where Civil Procedure Rule 41(b) vests trial courts with such discretion and dismissal with prejudice brought some measure of finality to the protracted litigation involving defendant's debts to plaintiff and his membership interests in co-defendant-company. Orlando Residence, Ltd. v. Alliance Hosp. Mgmt., LLC , 375 N.C. 140 (2020) (Author: Justice Mark Davis)

Joinder—crossclaims—qualifying claims dismissed—remaining claims must be dismissed—Where defendant asserted 18 crossclaims against a co-defendant, and the only crossclaims that met the requirements of Civil Procedure Rule 13(g) were barred by res judicata, the remaining crossclaims were properly dismissed. The Supreme Court adopted the federal approach–that if a qualifying claim asserted by a defendant is dismissed, then all claims joined under Rule 18 must also be dismissed. Orlando Residence, Ltd. v. Alliance Hosp. Mgmt., LLC , 375 N.C. 140 (2020) (Author: Justice Mark Davis)

Res judicata—identity element—crossclaims—failure to obtain ruling in prior action—Several of defendant's crossclaims related to his percentage ownership in co-defendant-company were subject to dismissal based on res judicata where those crossclaims required a determination of the total number of membership units in co-defendant-company, for which defendant failed to obtain a ruling in a prior action. Orlando Residence, Ltd. v. Alliance Hosp. Mgmt., LLC , 375 N.C. 140 (2020) (Author: Justice Mark Davis)

Criminal—robbery with a dangerous weapon—sufficiency of evidence—felonious intent—Where defendant (with the help of two other people) broke into a woman's home and ordered her at gunpoint to return the money he had previously paid her for illegal drugs, the trial court properly denied defendant's motion to dismiss a charge of criminal conspiracy to commit robbery with a dangerous weapon because there was substantial evidence of felonious intent. Although defendant believed he had a bona fide claim of right to the money, the law did not permit him to "engage in self-help" to forcibly recover personal property from an illegal transaction. Additionally, because there was sufficient evidence of felonious intent, the trial court properly refused to dismiss a charge for felony breaking and entering based on the same incident. State v. Cox , 375 N.C. 165 (2020) (Author: Justice Michael Morgan)

North Carolina—double jeopardy—Racial Justice Act—death sentence vacated—judgment not appealed—In a case involving the Racial Justice Act (RJA)–which, before its repeal, allowed a defendant to challenge a death sentence on the basis that racial bias infected the prosecution–review of the trial court's judgment and commitment order resentencing defendant to life imprisonment without the possibility of parole was precluded pursuant to double jeopardy principles. Although the State did seek appellate review of the trial court's accompanying order finding that defendant was entitled to relief under the RJA (an order which was previously vacated by the Supreme Court on non-substantive grounds), its failure to petition for and obtain review of the separate judgment and commitment order rendered that judgment final. State v. Robinson , 375 N.C. 173 (2020) (Author: Justice Cheri Beasley)

Habitual felon status—proof of prior convictions—evidentiary requirements—statutory methods nonexclusive—ACIS printout—In a plurality opinion, the Supreme Court determined that where the methods of proof listed in N.C.G.S. § 14-7.4 were not the exclusive means by which the State could prove prior convictions to establish habitual felon status, the State's use of a printout from the Automated Criminal/Infraction System (ACIS)–where the original judgment was not available–was admissible to prove a prior felony at defendant's habitual felon trial. There was a split among the justices regarding whether Evidence Rule 1005 applied, and if so, whether its application would allow the admission of the ACIS printout in this case. State v. Waycaster , 375 N.C. 232 (2020) (Author: Justice Mark Davis)

Jury instructions—self-defense—defense of habitation—use of deadly force—At a trial for attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury, the trial court committed prejudicial error by refusing to instruct the jury on self-defense and the defense of habitation. Viewed in the light most favorable to defendant, the evidence showed that defendant (who had a broken leg and used a wheelchair) reasonably believed that using deadly force was necessary to protect himself against an intruder who had already attacked him earlier that night at a neighbor's house, followed him home, broken into his home twice to violently assault him, and was breaking into the home for the third time when defendant shot him. State v. Coley , 375 N.C. 156 (2020) (Author: Justice Michael Morgan)

Attorney-client privilege—communications by agent of sole shareholder—not agent of corporation—not protected—The Business Court did not abuse its discretion by compelling the production of communications involving the agent of a corporation's sole shareholder because that person was not also the agent of the corporation–a properly formed corporation is a distinct entity and not the alter ego of shareholders, even one who owns all of the corporation's stock. The communications at issue were not protected by the attorney-client privilege, nor would they be under specialized applications of the privilege–the functional-equivalent test or the Kovel doctrine–even if those applications were recognized by North Carolina law. Global Textile Alliance, Inc. v. TDI Worldwide, LLC , 375 N.C. 72 (2020) (Author: Chief Justice Paul Newby)

Compelling production—in-camera review—limited in scope—abuse of discretion analysis—The Business Court did not abuse its discretion by limiting its in camera review of contested communications to a "reasonable sampling" where the corporation seeking protection from a discovery request failed to promptly provide all documents necessary for an exhaustive review and welcomed the accommodation of a limited review. Global Textile Alliance, Inc. v. TDI Worldwide, LLC , 375 N.C. 72 (2020) (Author: Chief Justice Paul Newby)

Work-product doctrine—corporate litigation—communications with agent of shareholder—The Business Court did not abuse its discretion by determining that communications involving an agent of a corporation's sole shareholder were not protected from discovery under the work-product doctrine where the communications were not prepared in anticipation of litigation–the agent had no role at the corporation, was not retained by the corporation to work on the current litigation, and did not advise the corporation about the litigation in any capacity. Global Textile Alliance, Inc. v. TDI Worldwide, LLC , 375 N.C. 72 (2020) (Author: Chief Justice Paul Newby)

Commercial underinsured motorist policy—endorsement—choice of law clause—third-party settlement—subrogation—Where a commercial uninsured/underinsured motorist (UIM) policy included an endorsement that specifically invoked South Carolina law, UIM proceeds paid to a widow on behalf of her husband's estate (in a settlement with a third party in a South Carolina wrongful death action) were not subject to subrogation under South Carolina law. The insurer was therefore not entitled to reimbursement from the UIM proceeds of worker's compensation death benefits paid in a previous action before the North Carolina Industrial Commission. Walker v. K&W Cafeterias , 375 N.C. 254 (2020) (Author: Justice Robin Hudson)

Defamation—jury instructions—material falsity—attribution—opinion—In a defamation action, the trial court did not err by instructing the jury that a materially false attribution may constitute libel where defendant-newspaper reported that several firearms experts had expressed opinions that they did not actually express regarding the work of a State Bureau of Investigation forensic firearms examiner (plaintiff) in two related murder cases. Desmond v. News & Observer Publ'g Co. , 375 N.C. 21 (2020) (Author: Justice Anita Earls)

Defamation—jury instructions—punitive damages—statutory aggravating factors—In a defamation action, the trial court erred by failing to instruct the jury that it was required to find one of the statutory aggravating factors before awarding punitive damages pursuant to N.C.G.S. § 1D-15(a). Contrary to an incorrect statement of law in the pattern jury instructions, a finding of actual malice in the liability stage did not obviate the need for the jury to find one of the statutory aggravating factors. Desmond v. News & Observer Publ'g Co. , 375 N.C. 21 (2020) (Author: Justice Anita Earls)

Defamation—newspaper articles—public official—actual malice—forensic firearms examiner—In an action by a State Bureau of Investigation forensic firearms examiner (plaintiff) alleging that a newspaper publishing company and one of its reporters (defendants) defamed her in a series of news articles concerning her work in two related murder cases, plaintiff (who stipulated she was a public official and that the alleged defamation related to her official conduct) presented clear and convincing evidence that defendants acted with actual malice–that is, with knowledge that the alleged defamatory statements were false or with reckless disregard of whether they were false. Defendants published several statements claiming that independent firearms experts had asserted that plaintiff–either through extreme incompetence or deliberate fraud–had erred in her laboratory analysis and possibly caused the conviction of an innocent man; however, among other things, the purported expert sources testified that they did not make the statements attributed to them; the reporter made significant mischaracterizations and omissions in the articles; and defendants were aware that an independent examination of the ballistics evidence was planned, but they proceeded with publication without waiting for the results. Desmond v. News & Observer Publ'g Co. , 375 N.C. 21 (2020) (Author: Justice Anita Earls)

Proximate cause—forecast of evidence—sufficiency—The trial court erred by granting summary judgment to defendants (three hospitalists) where plaintiff presented sufficient evidence, through a proffered expert who was erroneously disqualified from testifying about the standard of care, that the actions of defendants in continuing to prescribe a particular antibiotic to treat decedent's infection–even though she was also taking a corticosteroid–proximately caused decedent to suffer a ruptured tendon. Da Silva v. WakeMed , 375 N.C. 1 (2020) (Author: Justice Robin Hudson)

Rule 702—specialist expert—qualifications—similar specialty to defendants—active clinical practice—The trial court erred as a matter of law by disqualifying plaintiff's expert from testifying as to the standard of care in a suit against three hospitalists (for prescribing an antibiotic in conjunction with a corticosteroid) where sufficient evidence was presented as to each requirement in Evidence Rule 702 for qualifying a specialist expert. The proffered expert was board certified in internal medicine and therefore had a similar specialty as the defendant-hospitalists, and his specialty included the performance of the procedure that was the subject of the lawsuit. Further, during the year immediately preceding plaintiff's hospitalization, the proffered expert devoted the majority of his professional time to clinical practice as an internist, including two months full time in a hospital. Da Silva v. WakeMed , 375 N.C. 1 (2020) (Author: Justice Robin Hudson)

Indian Child Welfare Act—termination of parental rights—tribal notice requirements—The trial court erred in terminating a father's parental rights to two children without fully complying with the notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1912(a)) and related federal regulations (25 C.F.R. § 23.111). Although notices were sent to each of three federally-recognized Cherokee tribes, albeit not in a timely manner, which prompted responses from two of those tribes, the notices were legally insufficient because they did not include all necessary information. Even if the notices had been sufficient, the trial court failed to ensure that the county department of social services exercised due diligence when contacting the tribes, particularly with regard to the third tribe that did not respond to the notice. In re E.J.B. , 375 N.C. 95 (2020) (Author: Justice Cheri Beasley)

Sexual activity with student by teacher—sufficiency of evidence—status as teacher—There was substantial evidence that defendant was a "teacher" under the statute prohibiting sexual activity with students (N.C.G.S. § 14-27.7) where–even though he was denominated as a "substitute teacher" because he lacked a teaching certificate–he worked at a high school as a full-time physical education teacher, he had a planning period, and he had the same access to students as any certified teacher would. The Supreme Court rejected a hyper-technical interpretation of the statute in favor of a common-sense, case-by-case evaluation of whether an individual would qualify as a teacher under the statute. State v. Smith , 375 N.C. 224 (2020) (Author: Chief Justice Paul Newby)

Best interests of child—consideration of factors—no abuse of discretion—The trial court did not abuse its discretion by determining that termination of a mother's parental rights to her four children was in the children's best interests. When making its best interests determination, the court properly considered each dispositional factor under N.C.G.S. § 7B-1110(a), entered findings of fact supported by the evidence, and assessed the children's best interests in a way that was consistent with those findings and with the recommendations made by the children's guardian ad litem. In re E.F. , 375 N.C. 88 (2020) (Author: Chief Justice Paul Newby)

Best interests of child—potential guardian—findings of fact—not required—In determining that termination of a mother's parental rights to her four children was in the children's best interests, the trial court did not err by failing to consider the maternal great-grandmother as a potential guardian because the mother presented insufficient evidence of the great-grandmother's willingness or ability to provide the children a permanent home. Thus, when making its best interests determination, the court was not obligated to enter findings under N.C.G.S. § 7B-1110(a)(6) about the great-grandmother's eligibility as a placement option for the children. In re E.F. , 375 N.C. 88 (2020) (Author: Chief Justice Paul Newby)

Best interests of child—statutory factors—likelihood of adoption—aid in accomplishing permanent plan—The trial court did not abuse its discretion by determining that termination of a mother's parental rights to her four children was in the children's best interests. Although the father of the three youngest children retained his parental rights at the time of the termination hearing, the trial court properly found that the children had a high likelihood of being adopted and that terminating the mother's parental rights would aid in accomplishing the children's permanent plan of adoption (N.C.G.S. § 7B-1110(a)(2)-(3)) where competent evidence showed that the father wanted his children's foster caretaker to adopt the children and that the foster caretaker had already taken steps toward doing so. In re E.F. , 375 N.C. 88 (2020) (Author: Chief Justice Paul Newby)

Best interests of the child—weighing of dispositional factors—In a private termination action, the trial court did not abuse its discretion in determining that termination of a father's parental rights would be in his children's best interests where the unchallenged dispositional findings included the children's young ages, the children's positive living arrangements with their mother and grandparents, the son's significant progress in overcoming the trauma of seeing his father shoot his mother in the leg, the lack of any bond between the children and the father, and the mother's demonstrated ability to meet the children's needs. The trial court's weighing of the dispositional factors was neither arbitrary nor manifestly unsupported by reason. In re K.L.M. , 375 N.C. 118 (2020) (Author: Chief Justice Paul Newby)

Grounds for termination—failure to pay a reasonable portion of the cost of care—The trial court properly terminated a father's parental rights to his daughter based on willful failure to pay child support (N.C.G.S. § 7B-1111(a)(3)) where the evidence showed that the father was employed during the six months prior to the filing of the termination petition, that he earned some income during that time, and that he had the financial means to support his child. The trial court was not obligated to enter findings about the father's living expenses in order to support its adjudication. In re J.A.E.W. , 375 N.C. 112 (2020) (Author: Justice Anita Earls)

Grounds—willful failure to make reasonable progress—The trial court properly terminated a mother's parental rights to her daughter based upon a willful failure to make reasonable progress toward correcting the conditions that led to the child's removal from the family home (N.C.G.S. § 7B-1111(a)(2)). The trial court found that the mother failed to maintain stable housing and employment, frequently missed scheduled visits with her daughter, and failed to attend most of her individual and group therapy sessions despite continuing to be involved in incidents of domestic violence with the daughter's father since the child's removal from the home. In re L.E.W. , 375 N.C. 124 (2020) (Author: Justice Sam Ervin, IV)

Permanency planning order—reunification with parent—eliminated—sufficiency of findings—Before terminating a mother's parental rights to her daughter, the trial court did not err by entering a permanency planning order eliminating reunification with the mother from the child's permanent plan. Not only did the trial court's findings of fact address each of the factors stated in N.C.G.S. § 906.2(d) for evaluating the likely success of future reunification efforts, but the court also expressly found that the mother and the child's father–who shared a continuing pattern of domestic violence and often neglected to feed their child–acted in a manner inconsistent with the child's health and safety. In re L.E.W. , 375 N.C. 124 (2020) (Author: Justice Sam Ervin, IV)

Permanency planning order—standard of proof—misstated—harmless error—Before terminating a mother's parental rights to her daughter, the trial court did not commit prejudicial error by misstating the applicable standard of proof in a permanency planning order that eliminated reunification with the mother from the child's permanent plan. Under the misstated standard, the trial court's decision to eliminate reunification from the permanent plan rested upon findings of fact that required the petitioner (the Department of Social Services) to present stronger proof than the law actually required; therefore, the trial court's error worked in the mother's favor. In re L.E.W. , 375 N.C. 124 (2020) (Author: Justice Sam Ervin, IV)

Permanency planning order—visitation—reduced—proper—Before terminating a mother's parental rights to her daughter, the trial court did not abuse its discretion by entering a permanency planning order reducing the amount of visitation the mother was entitled to have with the child. In addition to properly eliminating reunification with the mother from the child's permanent plan, the court found that the mother neglected to take full advantage of her existing visitation rights, frequently missing or arriving late to visits with her daughter. In re L.E.W. , 375 N.C. 124 (2020) (Author: Justice Sam Ervin, IV)