Supreme Court - Digested Index

17 June 2022

Appeal and Error

Interlocutory order—substantial right—denial of summary judgment—assertion of public official immunity—Defendant police officer was entitled to appellate review of an order denying his motion for summary judgment where, although the order was interlocutory, the denial affected a substantial right because defendant asserted the defense of public official immunity. Bartley v. City of High Point, No. 359A20 (N.C. Jun. 17, 2022)

Interlocutory orders—of a business court judge—statement of grounds for appellate review—An appeal from a partial summary judgment order in a mandatory complex business case was dismissed where appellant failed to show that the order affected a substantial right or satisfied any of the other requirements under N.C.G.S. § 7A-27(a)(3) for an appeal as of right from an interlocutory order of a business court judge. Specifically, appellant's statement for the grounds of appellate review in its brief contained only bare assertions that the order met section 7A-27(a)(3)'s requirements while failing to allege sufficient facts and arguments to support those assertions. KNC Techs., LLC v. Tutton, No. 277A21 (N.C. Jun. 17, 2022)

Petition for certiorari—authority of Court of Appeals—exercise of discretion—The decision of the Court of Appeals to deny a criminal defendant's petition for a writ of certiorari to review an order of the trial court denying his motion to suppress was, for the second time, vacated and remanded with instructions for the Court of Appeals to exercise its discretion in determining whether to allow or deny defendant's petition on its merits. The Supreme Court overruled prior Court of Appeals decisions that incorrectly held or implied that the Court of Appeals lacks authority to issue a writ of certiorari in similar circumstances or that Appellate Rule 21 limits its authority to do so. State v. Killette, No. 379PA18-2 (N.C. Jun. 17, 2022)

Attorney Fees

Contract to purchase real estate—obligation to pay earnest money deposit and due diligence fee—evidence of indebtedness—After a buyer breached a contract to purchase real estate, which provided that the prevailing party in an action to recover the earnest money deposit would be entitled to collect "reasonable" attorney fees from the opposing party, the district court properly awarded attorney fees to the seller in her action to recover the earnest money deposit (and a due diligence fee) from the buyer. The contract–as a printed instrument signed by both parties that, on its face, evidenced a legally enforceable obligation for the buyer to pay both the deposit and the fee to the seller–constituted an "evidence of indebtedness" for purposes of N.C.G.S. § 6-21.1 (allowing parties to any "evidence of indebtedness" to recover attorney fees resulting from a breach). Further, the court did not err in awarding attorney fees exceeding the statutory cap set forth in section 6-21.2 because the additional amount represented what the seller incurred in the course of defending the award she initially received from a magistrate (and which the buyer appealed to the district court). Reynolds-Douglass v. Terhark, No. 43A21 (N.C. Jun. 17, 2022)

Civil Procedure

Presumption of regularity—order terminating parental rights—signed by judge who did not preside over hearing—administrative and ministerial action—An order terminating respondent-mother's parental rights, signed by the chief district court judge after the judge who had presided over the hearing retired–which stated in an unchallenged finding that the findings of fact, conclusions of law, and decretal had been announced in chambers by the now-retired judge, and that the order was administratively and ministerially signed by the chief district court judge–was held to be properly entered in an administrative and ministerial capacity pursuant to Civil Procedure Rules 52 and 63 where respondent-mother failed to rebut the presumption of regularity. In re E.D.H., No. 207A21 (N.C. Jun. 17, 2022)

Constitutional Law

Effective assistance of counsel—termination of parental rights—prejudice analysis—In a termination of parental rights matter, respondent-mother failed to show prejudice and therefore was not entitled to relief on her claim of ineffective assistance of counsel–in which she alleged that her counsel failed to ensure respondent was present at the hearings, seek visitation, file a response to the termination petition, assert due process claims, or advocate sufficiently. Based on evidence of numerous communications between respondent and her counsel throughout the proceedings, and respondent's failure to complete any part of her case plan despite understanding what was expected, she did not demonstrate that there was a reasonable probability of a different outcome absent the alleged errors by counsel. In re B.B., No. 24A21 (N.C. Jun. 17, 2022)

Homicide

Sufficiency of evidence—reasonable inference—circumstantial evidence—large sum of cash—There was sufficient evidence to withstand defendant's motion to dismiss the charges of robbery with a dangerous weapon and first-degree murder where, among other things, defendant was a crack cocaine addict who had frequently borrowed cash from the victim and others, the victim had been known to carry large sums of cash, investigators found no money in the victim's residence, defendant lacked legitimate financial resources, defendant had approximately $3,000 of cash in a concealed location after the murder, cell phone records showed that defendant was in the vicinity of the victim's residence on the night of the murder, there was no sign of forced entry into the victim's residence, defendant indicated before the victim's body was discovered that he knew the victim would not be returning to work, defendant made false and contradictory statements to the police, and defendant had deleted all of the call and text message history from his phone up until the morning that the victim's body was found. Defendant had the motive, opportunity, and means to commit the crimes. State v. Dover, No. 298A21 (N.C. Jun. 17, 2022)

Immunity

Public official immunity—police officer—individual capacity—malice—summary judgment not appropriate—Where plaintiff, in asserting civil tort claims against a police officer in his individual capacity, forecast sufficient evidence to raise genuine issues of material fact regarding whether the officer acted with malice–including whether he used unnecessary and excessive force–when he arrested plaintiff for resisting an officer, the officer was not entitled to summary judgment based on the defense of public official immunity. Evidence that the plainclothes officer acted contrary to his duty and with intent to injure plaintiff included plaintiff's claims that the officer "body slammed" him against the trunk of his car; that the officer refused to loosen the handcuffs, which were tight enough to leave marks on plaintiff's wrists; and that the officer suggested to plaintiff that if he had done as he was initially told, then he would not have been handcuffed in front of his neighbors. Bartley v. City of High Point, No. 359A20 (N.C. Jun. 17, 2022)

Jurisdiction

Personal—minimum contacts—nonresident business—services agreement—substantial connection with North Carolina—In a breach of contract action brought by a North Carolina-based company (plaintiff) against a nonresident business (defendant), the trial court did not err by determining that defendant was subject to personal jurisdiction in North Carolina based on unchallenged findings establishing that the services agreement entered into by both parties–under which plaintiff was to maintain and repair point-of-sale equipment from defendant's stores–had a substantial connection with North Carolina. Due process was not offended where defendant intentionally solicited plaintiff, which it knew to be based in North Carolina; the parties entered into a multiyear contract for ongoing services; the contract required any written notices to be sent to plaintiff in North Carolina; and plaintiff shipped thousands of parts from and performed thousands of repairs at its depot in North Carolina to meet its contractual obligations. Toshiba Glob. Com. Sols., Inc. v. Smart & Final Stores LLC, No. 181A21 (N.C. Jun. 17, 2022)

Negligence

Negligent hiring—elements—nexus between employment and injury—sufficiency of evidence—In an action brought against a home health agency based on a theory of negligent hiring after an aide the agency placed in plaintiffs' home orchestrated an off-duty home break-in and robbery of that home, the trial court properly denied the agency's motions for directed verdict and judgment notwithstanding the verdict because the evidence taken in the light most favorable to plaintiffs was sufficient on each element necessary to prove negligent hiring and to support a nexus between the aide's employment and the harm suffered by plaintiffs, which created a duty on the part of the agency. The harm to plaintiffs was foreseeable where the agency did not conduct a criminal background check on the aide, the aide provided false information on her job application, and the aide used information gained through her employment in plaintiffs' home to facilitate the robbery. Keith v. Health-Pro Home Care Servs., Inc., No. 33A21 (N.C. Jun. 17, 2022)

Negligent hiring—requested jury instruction—inclusion of elements not required—In an action brought against a home health agency based on a theory of negligent hiring after an aide the agency placed in plaintiffs' home orchestrated an off-duty home break-in and robbery of that home, the trial court properly denied the agency's request for the pattern jury instruction on negligent hiring, since it was not an accurate statement of the law in this case with regard either to the necessary elements of the claim or to the competency of the employee. To the extent the pattern instruction misstated the elements as set forth in case law, the Supreme Court recommended it be withdrawn and revised. Keith v. Health-Pro Home Care Servs., Inc., No. 33A21 (N.C. Jun. 17, 2022)

Real Property

Covenants—restrictive—solar panel installation—denial of application—N.C.G.S. § 22B-20—The denial by an architectural review committee (ARC) of defendant property owners' application to install solar panels on the roof of their house violated the plain and unambiguous meaning of N.C.G.S. § 22B-20, which generally prohibits restrictions on solar collectors unless either one of two exceptions is met. In this case, where the subdivision's declaration of covenants did not expressly prohibit solar panels or mention solar panels at all, but still could have had the effect of restricting their installation (by granting authority to the ARC to refuse any improvements for aesthetic reasons), the committee's restriction was void under the statute's general prohibition in subsection (b). Since the restriction prevented the reasonable use of solar panels, the exception in subsection (c) did not apply, and since there was no express restriction of solar panels, the exception in subsection (d) regarding installations visible from the ground did not apply. Defendants were therefore entitled to summary judgment on their claim for declaratory judgment. Belmont Ass'n v. Farwig, No. 214A21 (N.C. Jun. 17, 2022)

Search and Seizure

Warrantless search of person—lawfulness—search warrant executed at adjacent property—Defendant's motion to suppress drugs seized from his person was properly denied where competent evidence supported the trial court's findings of fact, which in turn supported the court's conclusion that law enforcement officers had reasonable suspicion to detain defendant pursuant to Terry v. Ohio, 392 U.S. 1 (1968), even though defendant was adjacent to, and not on, the piece of property that was the subject of a search warrant (which was issued after defendant sold narcotics to a confidential informant at that address the previous day). Law enforcement was aware of defendant's criminal history as a drug dealer known to carry guns, defendant was in sight of the officers executing the search warrant, and there was a reasonable basis for the detaining officer to believe that defendant was armed. State v. Tripp, No. 27A21 (N.C. Jun. 17, 2022)

Sentencing

Juvenile—murder—rape—consecutive sentences—de facto life without parole—In a case of first impression, where a fifteen-year-old defendant pleaded guilty to the rape and murder of his aunt, his consecutive sentences–240 to 348 months' imprisonment for first-degree rape and life with a possibility of parole for first-degree murder–violated both the federal and state constitutions because, taken together, they would keep defendant incarcerated for forty-five years (at which point, he would be sixty years old) before he could seek parole, and therefore they constituted a de facto sentence of life without parole. Juvenile offenders who are sentenced to life with the possibility of parole must have the opportunity to seek parole after serving no more than forty years of incarceration. State v. Conner, No. 64A21 (N.C. Jun. 17, 2022)

Juvenile—two first-degree murders—defendant "neither incorrigible nor irredeemable"—de facto life without parole sentence—Defendant's two consecutive sentences of life (twenty-five years each) with the possibility of parole for a double homicide he committed at the age of seventeen–issued upon resentencing in light of Miller v. Alabama, 567 U.S. 460 (2012)–violated both the Eighth Amendment of the federal constitution and article I, section 27 of the state constitution where the trial court found in the resentencing hearing that defendant was "neither incorrigible nor irredeemable" and where the consecutive sentences, which together required defendant to serve fifty years in prison before becoming eligible for parole, constituted a de facto sentence of life without parole. State v. Kelliher, No. 442PA20 (N.C. Jun. 17, 2022)

Termination of Parental Rights

Best interests of the child—guardian ad litem recommendation—no termination of other parent's rights—The trial court did not abuse its discretion by concluding that termination of a mother's parental rights to her daughter was in her daughter's best interest where the court made specific findings as to each criteria found in N.C.G.S. § 7B-1110(a) and was not bound by the guardian ad litem's report, in which termination was not recommended. Further, although the court terminated the mother's rights but not the father's, its decision was not arbitrary since the best interests determination focuses on the child and not on the equities between the parents. In re A.A., No. 441A20 (N.C. Jun. 17, 2022)

Collateral attack—initial custody determination—failure to appeal—not facially void for lack of jurisdiction—In his appeal from the trial court's order terminating his parental rights in his daughter, respondent-father could not collaterally attack the initial custody determination adjudicating his daughter as neglected and placing her in the department of social services' custody. Respondent's failure to appeal the initial custody determination precluded his collateral attack, and the exception regarding orders that are facially void for lack of jurisdiction did not apply. In re D.R.J., No. 147A21 (N.C. Jun. 17, 2022)

Grounds for termination—abandonment—sufficiency of evidence and findings—The trial court properly terminated a mother's parental rights to her daughter based on abandonment (N.C.G.S. § 7B-1111(a)(7)) where clear, cogent, and convincing evidence showed that, during the relevant six-month period, the mother had no visitation or communication with the child; sent no gifts, cards, or clothing; did not inquire about the child's well-being; and was aware that her child support payments, which were garnished from her wages, went to the child's father, with whom the child did not reside, and were not used for the child's benefit. In re A.A., No. 441A20 (N.C. Jun. 17, 2022)

Grounds for termination—failure to pay a reasonable portion of the cost of care—dependency—sufficiency of evidence and findings—The trial court erred in determining that the grounds of failure to pay a reasonable portion of the cost of care (N.C.G.S. § 7B-1111(a)(3)) and dependency (N.C.G.S. § 7B-1111(a)(6)) existed to support termination of respondent-father's parental rights where insufficient evidence of each ground was presented before the trial court and therefore the factual findings were insufficient. Specifically, for the ground in N.C.G.S. § 7B-1111(a)(3), the single factual finding recited the statutory language, and there was no evidence or finding regarding the cost of the child's care or respondent's ability to pay; for the ground in N.C.G.S. § 7B-1111(a)(6), the trial court's single factual finding failed to address the availability of an alternate placement option, and no evidence was presented on the matter. In re D.R.J., No. 147A21 (N.C. Jun. 17, 2022)

Grounds for termination—neglect—continued criminal activity—failure to engage with case plan—The trial court properly terminated respondent-mother's parental rights to her children on the ground of neglect based on findings, which were supported by clear, cogent, and convincing evidence, that, while the children were in DSS custody, respondent incurred new criminal charges; did not provide gifts, notes, letters, tangible items, or financial support to her children; and did not complete any aspect of her case plan. Respondent's periods of incarceration were not an adequate excuse for her lack of engagement with her children. In re B.B., No. 24A21 (N.C. Jun. 17, 2022)

Grounds for termination—neglect—likelihood of future neglect—case plan, domestic violence, and parenting skills—The trial court's order terminating respondent-mother's parental rights in her child on the ground of neglect was affirmed where, even after the factual findings that lacked evidentiary support were disregarded, the trial court's conclusion that respondent was likely to neglect her child in the future was supported by the remaining findings–including that she had failed to adequately make progress on her case plan, she continued to have issues with domestic violence, and she had failed to show any ability to parent appropriately. In re M.K., No. 186A21 (N.C. Jun. 17, 2022)

Grounds for termination—notice—sufficiency of allegations—Where the department of social services' motion to terminate respondent-father's parental rights specifically cited only N.C.G.S. § 7B-1111(a)(3) and (a)(6) as grounds for terminating his parental rights, the trial court erred by adjudicating the existence of the grounds in N.C.G.S. § 7B-1111(a)(1), (a)(2), and (a)(7). A sentence in the motion under the paragraph citing N.C.G.S. § 7B-1111(a)(6)–even when coupled with prior orders incorporated by reference–alleging that the "parents have done nothing to address or alleviate the conditions which led to the adjudication of this child as a neglected juvenile" did not adequately allege statutory language to provide notice of the grounds in N.C.G.S. § 7B-1111(a)(1) or (a)(2), and the allegation in the motion referencing N.C.G.S. § 7B-1111(a)(7) with regard to the children's mother could not provide notice that respondent's parental rights were subject to termination on that ground. In re D.R.J., No. 147A21 (N.C. Jun. 17, 2022)

Grounds for termination—willful abandonment—neglect by abandonment—termination petitions denied—insufficiency of findings—The trial court's orders denying petitioner-mother's petitions to terminate respondent-father's parental rights in the children born of their marriage lacked sufficient findings of fact–both to support denial of the petitions and to permit meaningful appellate review–and therefore the orders were vacated and remanded for additional findings and conclusions. Specifically, for the ground of willful abandonment, the trial court failed to identify the determinative six-month period, failed to address whether respondent had the ability to seek modification of an order requiring him to have no contact with his children during the determinative period, and, with one exception, considered respondent's "actions to improve himself" occurring only outside the determinative period; for the ground of neglect based on abandonment, the trial court failed to make any findings. In re B.F.N., No. 261A21 (N.C. Jun. 17, 2022)

Jurisdiction—amendments to termination order—after notice of appeal given—substantive in nature—The trial court lacked jurisdiction pursuant to N.C.G.S. § 7B-1003(b) to amend its order terminating a mother's parental rights to her children after the mother had given notice of appeal of the original termination order because the amendments–multiple additional findings of fact which were neither mentioned in the court's oral ruling nor duplicative of other findings in the original order–were not merely clerical corrections but were substantive in nature. Therefore, the amended order was void, leaving only the original order subject to appellate review. In re B.B., No. 24A21 (N.C. Jun. 17, 2022)

Motion to continue hearing—denied—no prejudice—The trial court did not abuse its discretion by denying respondent-mother's motion to continue a termination of parental rights hearing (made on her behalf by her counsel when respondent did not appear at the hearing) where respondent failed to show the denial caused her prejudice, since she did not state that she would have testified or that a different outcome would have resulted if the motion had been allowed. In re B.B., No. 24A21 (N.C. Jun. 17, 2022)

Subject matter jurisdiction—standing—petition filed by stepmother—statutory requirements—A stepmother had standing to file a private termination of parental rights action against a child's mother pursuant to N.C.G.S. § 7B-1103(a)(5), thereby giving the trial court subject matter jurisdiction over the matter, where there was sufficient evidence that the child had resided with her stepmother continuously far in excess of the required statutory length of time immediately preceding the filing of the petition. The trial court was not required to make an explicit finding of fact establishing petitioner's standing, particularly where the mother did not raise the issue at the hearing. In re A.A., No. 441A20 (N.C. Jun. 17, 2022)

Utilities

General rate case—treatment of coal ash remediation costs—departure from prior precedent—not arbitrary and capricious—no equal protection violation—In a general rate case, the Utilities Commission neither acted arbitrarily and capriciously nor violated the equal protection provisions of the state and federal constitutions by authorizing a utilities company to amortize its coal ash waste remediation costs over a ten-year period instead of the five-year period it allowed in two earlier decisions–one from 2016 involving the same company and another involving Duke Energy Corporation–and by denying the company the ability to earn a return on the unamortized balance of those costs as it had permitted in the earlier decisions. The Commission's ratemaking decisions–which are legislative, rather than judicial, in nature–are not subject to res judicata or stare decisis principles. Further, the 2016 order expressly disclaimed having any precedential effect regarding the company's coal ash-related issues; the decision from the Duke rate cases was still on appeal when this case was heard, was reversed on appeal, and resulted in an unfavorable settlement for Duke; and the Commission's order in this case was supported by the record and adequately explained the Commission's basis for its decision. State ex rel. Utils. Comm'n v. Virginia Elec., No. 477A20 (N.C. Jun. 17, 2022)


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