Preservation of issues—failure to join related criminal offenses—basis for motion to dismiss—issue not raised before trial court—Defendant was not entitled to dismissal, pursuant to N.C.G.S. § 15A-926 (failure to join), of fourteen counts of felony child abuse that were brought after he successfully challenged on appeal his conviction for attempted first-degree murder. The statute did not apply because defendant had not been indicted on the additional charges at the time of his murder trial, and although he contended in this appeal that there were applicable exceptions, as stated in State v. Warren, 313 N.C. 254 (1985), he failed to properly preserve this issue by raising it before the trial court. Further, the Court of Appeals misapplied Warren by determining that it mandated rather than permitted dismissal. State v. Schalow , 379 N.C. 639 (2021) (Author: Justice Robin Hudson)

As superior form of adjudication—abuse of discretion analysis—In a class action lawsuit brought by former tenants of defendant's residential apartments alleging violations of the North Carolina Residential Rental Agreements Act and the North Carolina Debt Collection Act (NCDCA), where defendant sent letters to defaulting tenants threatening to collect eviction and complaint-filing fees before having filed a summary ejectment complaint, the trial court did not abuse its discretion in determining that a class action was superior to other adjudication methods. The court properly determined that statutory damages could be measured using objective, class-wide criteria (based on the tenants' common deprivation of rights under the NCDCA), and the court reasonably found that class members could be identified by administrative means. Further, any differences in statutory damages or attorneys' fees between the class members would not be "inextricably tied" to the alleged class-wide injury and, therefore, would not render the class action form inapt. McMillan v. Blue Ridge Cos., Inc. , 379 N.C. 488 (2021) (Author: Justice Robin Hudson)

Class certification—common injury—North Carolina Debt Collection Act—apartment tenants threatened with collection letters—In a class action lawsuit where former tenants of defendant's residential apartments alleged violations of the North Carolina Debt Collection Act (NCDCA), the trial court did not abuse its discretion in certifying a class of tenants to whom defendant had sent letters threatening to collect eviction and complaint-filing fees before having filed a summary ejectment complaint. The court properly defined the class as tenants who were "sent" letters rather than those who "received" them, because the injury that the letters allegedly caused did not result from individual tenants' subjective reactions to them, but rather from a common, statutory "informational injury" stemming from defendant's alleged violations of the NCDCA. Further, any damages could be shown by a class-wide theory of generalized injury where defendant used uniform procedures–including the same collection letter template–to contact the tenants. McMillan v. Blue Ridge Cos., Inc. , 379 N.C. 488 (2021) (Author: Justice Robin Hudson)

Class certification—common issues—North Carolina Debt Collection Act—apartment tenants threatened with eviction and complaint-filing fees—In a class action lawsuit brought by former tenants of defendant's residential apartments alleging violations of the North Carolina Residential Rental Agreements Act and the North Carolina Debt Collection Act, where defendant sent letters to defaulting tenants threatening to collect eviction and complaint-filing fees before having filed a summary ejectment complaint, the trial court did not abuse its discretion in certifying two classes (tenants who paid eviction fees and tenants who paid complaint-filing fees) where the court's findings of fact, though short, adequately described how defendant's procedures for sending the letters and assessing the fees were uniform for all the tenants and, therefore, supported the court's conclusion that common issues of fact or law predominated over any individual issues. McMillan v. Blue Ridge Cos., Inc. , 379 N.C. 488 (2021) (Author: Justice Robin Hudson)

First Amendment—anti-threat statute—true threat—both subjective and objective intent required—In a prosecution for threatening to seriously injure or kill a court officer (N.C.G.S. § 14-16.7(a)), based on defendant's social media statements criticizing a district attorney's decision not to charge the parents of a deceased child, the speech could be criminalized only if it constituted a true threat, which is not constitutionally protected under the First Amendment. In order to prove the existence of a true threat, the State needed to establish not only that the speech was objectively threatening but also that defendant subjectively intended to communicate a threatening message. State v. Taylor , 379 N.C. 589 (2021) (Author: Justice Michael Morgan)

First Amendment—anti-threat statute—true threat—sufficiency of the evidence—In a prosecution for threatening to seriously injure or kill a court officer (N.C.G.S. § 14-16.7(a)), the State presented substantial evidence from which a jury could find that defendant's social media statements criticizing a district attorney's decision not to charge the parents of a deceased child constituted a true threat–a necessary element rendering the statements ineligible for First Amendment protection, and which requires proof of objective and subjective intent. Defendant used the word "death" multiple times, wrote favorably of vigilante justice, and expressed a willingness to use firearms against members of the criminal justice system. Where factual questions remained for a jury to decide, the matter was remanded for a new trial. State v. Taylor , 379 N.C. 589 (2021) (Author: Justice Michael Morgan)

Time to prepare for trial—constitutional adequacy—late notice of intent to introduce evidence—harmless error analysis—The trial court committed constitutional error by denying defendant's motion to continue where the State had disclosed on the eve of trial that it planned to use certain recorded jailhouse phone calls made by defendant, giving defendant constitutionally inadequate time to review and address the calls. The error was harmless beyond a reasonable doubt as to his first-degree murder conviction under the felony murder rule, because the conviction was based on the underlying felony of assault with a firearm on a government official–a general intent crime–and the State introduced the calls as rebuttal evidence to defendant's evidence of lack of specific intent. But as to defendant's conviction for robbery with a dangerous weapon–a specific intent crime–defendant was awarded a new trial because his trial counsel's ability to give an effective opening statement was materially impaired. State v. Johnson , 379 N.C. 629 (2021) (Author: Justice Tamara Barringer)

Merger—judicial appraisal—fair value of shares—additional interest payments—The Supreme Court rejected an argument by the dissenting shareholders in a merger transaction–who had initiated a judicial appraisal before the N.C. Business Court to determine whether they had been paid fair value for their shares–that they were entitled to additional interest payments pursuant to N.C.G.S. § 55-13-30(e). A fair reading of that provision necessarily included the definition of "interest" contained in N.C.G.S. § 55-13-01(6), and the dissenters' interpretation would have led to an absurd result. Reynolds Am. Inc. v. Third Motion Equities Master Fund Ltd. , 379 N.C. 524 (2021) (Author: Justice Anita Earls)

Merger—judicial appraisal—fair value of shares—discretionary determination—In a judicial appraisal of the value of dissenting shareholders' shares in a tobacco company–initiated as the result of a merger with a larger international conglomerate–the N.C. Business Court did not abuse its discretion when it determined that the negotiated deal price constituted fair value as of the transaction date pursuant to N.C.G.S. § 55-13-01(5). The court's consideration of the deal price as evidence of fair value was proper where there was objective indicia that the deal was done at arm's length, and was only part of the court's thorough analysis, which included other customary and current valuation concepts and techniques as allowed by statute. Further, the court properly exercised its discretion in evidentiary matters when it took into account the tobacco company's evidence regarding an expert's adjusted unaffected stock price analysis, but not the dissenters' discounted cash flow analysis, which the court determined was unreliable. Reynolds Am. Inc. v. Third Motion Equities Master Fund Ltd. , 379 N.C. 524 (2021) (Author: Justice Anita Earls)

Vindictive prosecution—after successful appeal—motivation for additional charges—application of N.C.G.S. § 15A-1335—The prosecutor's decision to pursue additional charges against defendant after defendant successfully appealed a conviction of attempted first-degree murder on constitutional grounds was not presumptively vindictive where the prosecutor's statements made clear that his motives in filing additional charges (for felony child abuse) were to punish defendant for his alleged criminal conduct and not in retaliation for defendant exercising his right to appeal and where there was no other evidence that the charging decision, which was presumptively lawful, was actually vindictive. Further, the Court of Appeals failed to consider the effect of N.C.G.S. § 15A-1335 when calculating the maximum potential period of incarceration for the current charges as compared with the prior charge, since the operation of the statute would prevent a significantly increased sentence for offenses based on the same conduct. State v. Schalow , 379 N.C. 639 (2021) (Author: Justice Robin Hudson)

Inferences running backward—sale of real property—water intrusion problems—inspection after closing—In an action by buyers of a beach house to recover damages after discovering severe water damage that appeared to have been intentionally concealed, the Court of Appeals did not violate any prohibition against relying upon "inferences running backwards" when, in partially reversing the trial court's order granting summary judgment for defendants, it relied upon the testimony of a general contractor concerning his discovery of previous water damage during his inspection three months after the closing, where a jury could properly determine that the damage existed at the time of the closing. Cummings v. Carroll , 379 N.C. 347 (2021) (Author: Justice Sam Ervin, IV)

Breach of fiduciary duty—buyer's real estate agent—material information—reasonable diligence—In an action by buyers of a beach house to recover damages after discovering severe water damage that appeared to have been intentionally concealed, the buyers failed to present a genuine issue of material fact as to whether their realtors breached their fiduciary duty by failing to procure, on their own initiative, maintenance records for the home and by hiring the licensed home inspector who failed to discover the home's water intrusion problems. Cummings v. Carroll , 379 N.C. 347 (2021) (Author: Justice Sam Ervin, IV)

Charter school—receipt of excess state funds—N.C. False Claims Act—pleading—particularity—objective falsehood—The State adequately pled claims under the N.C. False Claims Act against a charter school and its CEO (defendants), pursuant to Civil Procedure Rule 9(b)'s particularity requirement, where its complaint alleged that the CEO reported an inflated student enrollment estimate to the Department of Public Instruction, the school received over $300,000 in excess state funds as a result of the allegedly false representation, and that the State was seeking to recoup this amount. Moreover, by alleging that defendants "knew or should have known" when they applied for state funds that they could not reach their reported enrollment estimate and that the school would probably close before the end of the year (due to financial struggles the State was unaware of), the State adequately pled that defendants had made an objective falsehood. State v. Kinston Charter Acad. , 379 N.C. 560 (2021) (Author: Justice Sam Ervin, IV)

Inducement—sale of real property—water intrusion problems—In an action by buyers of a beach house to recover damages after discovering severe water damage that appeared to have been intentionally concealed, the buyers' fraud-related claims against the sellers and the sellers' realtor (defendants) presented genuine issues of material fact as to whether defendants reasonably relied upon the work of a painter to repair a leak, and whether the buyers reasonably relied upon their home inspector's report noting no significant water intrusion issues. Cummings v. Carroll , 379 N.C. 347 (2021) (Author: Justice Sam Ervin, IV)

Public official—N.C. False Claims Act—CEO of charter school—motion to dismiss—In the State's lawsuit against a charter school and its CEO for violations of the N.C. False Claims Act, the trial court properly denied the CEO's motion to dismiss under Rule 12(b)(6) where the record contained insufficient information on whether public official immunity protected the CEO from suit and, even if the CEO was a public official who could claim such immunity, the State's complaint included sufficient allegations to preclude dismissal, including that the CEO knowingly made "false or fraudulent statements in connection with receiving state funds." State v. Kinston Charter Acad. , 379 N.C. 560 (2021) (Author: Justice Sam Ervin, IV)

Sovereign—N.C. False Claims Act—charter school—not an available defense—In the State's lawsuit against a charter school and its CEO for violations of the N.C. False Claims Act, where the school received an overpayment of state funds based on its overestimate of student enrollment, the Supreme Court overturned the Court of Appeals' ruling that sovereign immunity protected the school from suit. Although the Charter School Act provides that a state-approved charter school "shall be a public school" within its local school administrative unit, the General Assembly did not categorize charter schools as state agencies or instrumentalities under the Act, but rather as independent entities run by private non-profit corporations. Further, based on the similarities between local school boards and the boards of directors of charter schools, the Court concluded that charter schools are entitled to, at most, governmental rather than sovereign immunity. State v. Kinston Charter Acad. , 379 N.C. 560 (2021) (Author: Justice Sam Ervin, IV)

Insurance—underinsured motorist coverage—multiple claimants—limits of liability—Where an automobile accident caused by a drunk driver killed a woman and injured her husband, the total amount of underinsured motorist coverage available under the deceased woman's policy for her estate and her husband was limited by the per-accident limit, and the total amount of coverage available to each individual claimant was limited by the per-person limit. The Court of Appeals erred in applying N.C. Farm Bureau Mut. Ins. Co., Inc. v. Gurley, 139 N.C. App. 178 (2000), such that the individual claimants would have received payments exceeding the policy's per-person limits. N.C. Farm Bureau Mut. Ins. Co., Inc. v. Dana , 379 N.C. 502 (2021) (Author: Justice Sam Ervin, IV)

Economic loss rule—sale of real property—disclosure statement—water damage—In an action by buyers of a beach house to recover damages after discovering severe water damage that appeared to have been intentionally concealed, the buyers' claims against the selling parties were not barred by the economic loss rule where the claims–for negligent misrepresentation, fraud, and negligence–rested upon allegations that the selling parties had failed to disclose the existence of a long history of water intrusion problems and had unreasonably relied upon a painter's assurances that he had fully repaired the problems. The disclosure statement upon which the buyers' claims relied was not incorporated into the purchase contract and therefore could not serve as the basis for application of the economic loss rule. Cummings v. Carroll , 379 N.C. 347 (2021) (Author: Justice Sam Ervin, IV)

Negligent misrepresentation—sale of real property—water intrusion problems—In an action by buyers of a beach house to recover damages after discovering severe water damage that appeared to have been intentionally concealed, the buyers' negligent misrepresentation claims against the sellers presented genuine issues of material fact as to whether the sellers reasonably relied upon the work of a painter to repair a leak when they represented in the disclosure statement that they did not know of any water intrusion problems, and whether the buyers reasonably relied upon the disclosure statement in light of their home inspector's report noting no significant water intrusion issues. Cummings v. Carroll , 379 N.C. 347 (2021) (Author: Justice Sam Ervin, IV)

Sale of real property—duty of realtor to disclose—material facts—water intrusion problems—In an action by buyers of a beach house to recover damages after discovering severe water damage that appeared to have been intentionally concealed, the buyers' negligence claims against the sellers' realtor and real estate company (defendants) presented a genuine issue of material fact as to whether defendants had a duty to disclose the history of water intrusion into the house, where the realtor knew of the previous water intrusion, hired a painter to repair the source of a leak, and received equivocal assurances from the painter that he had located and fixed the leak. Cummings v. Carroll , 379 N.C. 347 (2021) (Author: Justice Sam Ervin, IV)

Charter school—receipt of excess state funds—N.C. False Claims Act—definition of "person"—In the State's lawsuit against a charter school and its CEO for violations of the N.C. False Claims Act, where the school received an overpayment of state funds based on its overestimate of student enrollment, the Supreme Court overturned the Court of Appeals' ruling that charter schools are not "persons" subject to liability under the Act. The statutory definition of "persons" includes "corporate" bodies, and therefore it necessarily encompasses charter schools because non-profit corporations operate them. Further, the classification of charter schools as "persons" is consistent with the legislature's intent to prevent misuse of public funds, and neither a sovereign immunity defense nor the "arm-of-the state" analysis for protecting state governments from liability under the Act are applicable to charter schools. State v. Kinston Charter Acad. , 379 N.C. 560 (2021) (Author: Justice Sam Ervin, IV)

Best interests of the child—parent-child bond—sufficiency of findings—The trial court did not abuse its discretion in concluding that termination of a mother's parental rights was in her minor daughter's best interests where the court reasonably determined that the mother and the child lacked a strong, healthy bond. The evidence showed that the daughter had no contact with her mother in the five months leading up to the termination hearing, suffered from severe emotional and behavioral issues that worsened during prior visits with her mother, expressed more concern over her mother's animals than in seeing her mother, described having a parental attitude toward her mother, and would require extensive therapy to work through her past trauma in order to resume visits with the mother. In re N.B. , 379 N.C. 441 (2021) (Author: Justice Anita Earls)

Best interests of the child—statutory factors—consideration of relative placement—no conflict in evidence—The trial court did not abuse its discretion by concluding that termination of a father's parental rights to his son were in the son's best interests, after finding the existence of three grounds for termination, where the court's findings addressing the statutory factors in N.C.G.S. § 7B-1110(a) were supported by evidence and there was no conflicting evidence about a relative placement with the maternal grandmother–which had previously been considered and rejected by the trial court–that would require written findings on that issue. In re K.A.M.A. , 379 N.C. 424 (2021) (Author: Chief Justice Paul Newby)

Best interests of the child—weighing of statutory factors—parent-child bond—alternatives to termination—The trial court did not abuse its discretion in concluding that termination of a mother's parental rights was in her minor daughter's best interests where, contrary to the mother's argument, the court was not required to delay the termination hearing–which the court appropriately fast tracked after finding aggravated circumstances existed under N.C.G.S. § 7B-901(c)(1)(b) and (e)–so respondent could try to improve the tenuous bond with her child. Furthermore, the court properly considered each dispositional factor under N.C.G.S. § 7B-1110(a) in making its best interests determination, and the record evidence did not support continued visitation between the mother and her child or any other dispositional alternatives to termination of parental rights. In re N.B. , 379 N.C. 441 (2021) (Author: Justice Anita Earls)

Grounds for termination—aiding and abetting—murder of other child in home—The trial court properly terminated a mother's parental rights in her newborn son under N.C.G.S. § 7B-1111(a)(8) and ceased reunification efforts in the underlying neglect action, where clear, cogent, and convincing evidence supported a finding that she aided and abetted her boyfriend in the second-degree murder of her nineteen-month-old son. Although the mother knew for months that her boyfriend was hitting her children, observed scalding injuries on the children after her boyfriend left them in a hot bathtub, and found patterned linear bruising on her son's back the day before he died (in large part because of the burns and blunt force injuries), she continued to leave the children in her boyfriend's care, did not seek medical care for the children, and actively concealed the injuries from her parents and anyone else who could have offered help. In re C.B.C.B. , 379 N.C. 392 (2021) (Author: Chief Justice Paul Newby)

Grounds for termination—neglect—best interests—sufficiency of findings—The findings of fact in an order terminating a father's parental rights to his son contained sufficient differences from the petition allegations to demonstrate that the trial court conducted an independent evaluation of the evidence. Although certain findings were not supported by the evidence and were therefore disregarded on appeal, the remainder of the findings were supported by evidence that the son was neglected and that the father's failure to correct the conditions which led to the son's removal indicated a likelihood of future neglect. The trial court properly terminated the father's rights based on neglect after conducting a best interests analysis in accordance with the factors contained in N.C.G.S. § 7B-1110(a). In re R.G.L. , 379 N.C. 452 (2021) (Author: Justice Anita Earls)

Grounds for termination—neglect—likelihood of future neglect—sufficiency of findings—The trial court properly terminated a mother's parental rights in her son on grounds of neglect where competent evidence supported the court's factual findings, including that, at the time of the termination hearing, the mother had failed to maintain a safe home environment (she lived in the maternal grandmother's house, which was found covered in animal feces, moldy food, and piles of trash), routinely missed drug screens required under her case plan despite her methamphetamine and marijuana use disorders, attended only twenty-eight out of the seventy-seven visits she was offered with her son, and failed to correct any of those conditions while her son was in foster care. Further, these findings supported a conclusion that the child faced a high likelihood of future neglect if returned to the mother's care. In re A.L.A. , 379 N.C. 383 (2021) (Author: Chief Justice Paul Newby)

Grounds for termination—willful abandonment—evidentiary support—The trial court properly terminated a father's parental rights to his daughter based on willful abandonment (N.C.G.S. § 7B-1111(a)(7)) where the majority of the challenged findings of fact were supported by evidence or based on the trial court's proper role in assessing credibility that, during the determinative six-month period, although the father sent one card with a gift, he otherwise had no contact with his daughter or the relatives caring for her, took no steps to seek visitation or assert his legal rights, provided no financial support, and did not attempt to show love, care, and affection for his daughter. In turn, the findings supported the court's conclusion that the father's conduct constituted willful abandonment. In re L.M.M. , 379 N.C. 431 (2021) (Author: Chief Justice Paul Newby)

No-merit brief—failure to legitimate—The termination of a father's parental rights to his son on the grounds of failure to legitimate was affirmed where his counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and based upon proper legal grounds. In re Z.J.M. , 379 N.C. 485 (2021) (Author: Chief Justice Paul Newby)

No-merit brief—multiple grounds for termination—The trial court's order terminating a mother's parental rights to her daughter on the grounds of neglect and failure to make reasonable progress was affirmed where her counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and based upon proper legal grounds. In re S.G.S. , 379 N.C. 471 (2021) (Author: Justice Per Curiam)

No-merit brief—multiple grounds for termination—The trial court's order terminating a father's parental rights to his five children on the grounds of neglect, failure to make reasonable progress, and failure to pay a reasonable portion of the cost of caring for the children was affirmed where his counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and based upon proper legal grounds. In re S.J. , 379 N.C. 478 (2021) (Author: Justice Anita Earls)

No-merit brief—multiple grounds for termination—The termination of a mother's parental rights to her three children on multiple grounds was affirmed where her counsel filed a no-merit brief, the trial court's order was supported by clear, cogent, and convincing evidence, and the termination order was based on proper legal grounds. In re T.I.S. , 379 N.C. 482 (2021) (Author: Chief Justice Paul Newby)

No-merit brief—willful abandonment—willful failure to pay child support—The trial court's order terminating a father's parental rights to his son on the grounds of willful abandonment and willful failure to pay child support was affirmed where his counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and based upon proper legal grounds. In re J.I.T. , 379 N.C. 421 (2021) (Author: Justice Phil Berger, Jr.)

Subject matter jurisdiction—verification of pleading—missing date of verification—substantial compliance—The trial court had subject matter jurisdiction in a termination of parental rights case where the termination motion substantially complied with the verification requirement under N.C.G.S. § 7B-1104, even though neither the petitioner who verified the motion nor the notary she appeared before had filled in the date of the verification on the attached notarial certificate. A savings clause in the Notary Public Act affords a "presumption of regularity" to notarized documents containing minor technical defects and, at any rate, none of the applicable rules governing verification require that a verified pleading be notarized. Further, where the significant date for purposes of a termination proceeding is the date upon which a termination motion was filed, it did not matter whether the motion was verified contemporaneously with or subsequent to the date it was signed. In re C.N.R. , 379 N.C. 409 (2021) (Author: Justice Sam Ervin, IV)