Supreme Court - Digested Index

19 August 2022

Appeal and Error

Interlocutory orders—substantial right—challenge to trust amendments—order for distributions to defending beneficiaries—Where plaintiffs challenged certain amendments to their father's revocable trust removing them as beneficiaries and the trial court issued an interlocutory order directing the trustee to make distributions to the beneficiaries for the legal fees incurred in their defense of the trust amendments, the Court of Appeals properly exercised jurisdiction over plaintiffs' interlocutory appeal because the order impacted a substantial right–namely, their right to recover from the trustee pursuant to N.C.G.S. § 36C-6-604(b) for distributions to the defending beneficiaries in the event plaintiffs were successful in their challenge to the trust amendments. However, the portions of the Court of Appeals' opinion addressing one of the trial court's rulings not appealed by the parties was vacated. Wing v. Goldman Sachs Tr. Co., N.A., No. 488PA20 (N.C. Aug. 19, 2022)

Mootness—statute amended during appeal—request for damages—constitutionality of fees—Where plaintiffs filed suit challenging a county ordinance that required residential property developers to pay one-time water and sewer "capacity use" fees for each lot they wished to develop as a precondition for the county's concurrence in the developer's applications for water and sewer permits, plaintiffs' request for declaratory relief was not rendered moot by the legislature's amendments to the relevant statutory provisions during the pendency of the appeal because plaintiffs' request for declaratory relief was inextricably intertwined with their claim for monetary relief. Further, the county's statutory authority to enact the fees at issue had no bearing on the constitutionality of those fees. Anderson Creek Partners, L.P. v. Cnty. of Harnett, No. 62PA21 (N.C. Aug. 19, 2022)

Preservation of issues—probation revocation—right to confront witnesses—insufficient objection—Where defendant's objection at his probation revocation hearing to the introduction of a transcript of an officer's testimony (from a prior suppression hearing regarding an offense for which defendant was ultimately not convicted) did not specifically reference either a constitutional or statutory right to confront witnesses, but appeared at most to challenge the evidence on relevance grounds, and where defendant neither made a request to have the officer testify nor was prevented from doing so, the issue of whether defendant's confrontation rights were violated was neither properly preserved for appellate review nor automatically preserved as a violation of a statutory right (under N.C.G.S. § 15A-1354(e)). State v. Jones, No. 85PA20 (N.C. Aug. 19, 2022)

Churches and Religion

Subject matter jurisdiction—ecclesiastical abstention doctrine—termination of pastor's employment—In a lawsuit arising from an employment dispute between a church and one of its former pastors, the ecclesiastical entanglement doctrine of the First Amendment did not bar the trial court from reviewing the pastor's claim seeking a declaratory judgment establishing that his employment relationship with the church was not "at-will" and that the church's procedure for firing him violated the church's then-controlling bylaws, since the court could apply neutral principles of law to resolve the claim. In contrast, First Amendment principles required dismissal of the pastor's claim for injunctive relief allowing him to resume his employment, the resolution of which would necessarily require the court to second-guess the board's evaluation of the pastor's job performance. Similarly, the pastor's claims alleging that the church's board of directors breached a fiduciary duty owed to him, tortiously interfered with his employment relationship, and misappropriated church funds required dismissal where each claim would require the court to examine whether the board's actions advanced the church's religious mission. Nation Ford Baptist Church, Inc. v. Davis, No. 390A21 (N.C. Aug. 19, 2022)

Constitutional Law

Effective assistance of counsel—Miller resentencing—counsel's failure to raise legal issue—prejudice analysis—On appeal from the denial of defendant's motion for appropriate relief (MAR) (which sought re-sentencing of his convictions for murder, kidnapping, and two counts of robbery), the Court of Appeals properly denied defendant's claim that his counsel's performance at the MAR hearing was deficient because defendant could not demonstrate that he was prejudiced by his counsel's decisions to inform the trial court that the two robbery convictions (which arose out of a separate criminal transaction) were not before the court and to ask only for the other two sentences to run concurrently. The trial court's decision to impose consecutive sentences for the murder and kidnapping, which arose from the same transaction, clearly showed its belief that defendant should be punished separately for each of his crimes. However, the decision of the Court of Appeals was modified where it misinterpreted N.C.G.S. § 15A-1354(a) to suggest that the trial court would not have been authorized to run the murder and kidnapping sentences concurrently with the robbery sentences. State v. Oglesby, No. 683A05-3 (N.C. Aug. 19, 2022)

Equal protection and due process—request for prior trial transcript—harmless error—At defendant's retrial for multiple driving offenses arising from a car crash, in which two witnesses identified defendant as the drunk driver of the wrecked car, the trial court properly denied defendant's motions for a continuance and for a transcript of his prior mistrial, in which defendant argued that the denial of his motions would violate his due process and equal protection rights because the transcript was necessary to impeach the witnesses who identified him. Although the record did not indicate whether the trial court applied the requisite two-part test from Britt v. North Carolina, 404 U.S. 226 (1971), when denying defendant's transcript request, any error (assuming the trial court had erred) was harmless beyond a reasonable doubt given the overwhelming evidence of defendant's identity as the drunk driver at the crash. State v. Gaddis, No. 306A21 (N.C. Aug. 19, 2022)

Unconstitutional conditions doctrine—land-use permits—water and sewer impact fees—legislatively enacted and generally applicable—Where plaintiffs filed suit challenging a county ordinance that required residential property developers to pay one-time water and sewer "capacity use" fees (which were generally applicable and non-negotiable) for each lot they wished to develop as a precondition for the county's concurrence in the developer's applications for water and sewer permits, the "capacity use" fees were properly considered as both impact fees and monetary exactions, and they were subject to review under the unconstitutional conditions doctrine; therefore, the fees had to have an essential nexus and rough proportionality to the impact of plaintiff's developments on the county's water and sewer systems in order to avoid being treated as takings of plaintiffs' property. While plaintiffs' complaint admitted the existence of the required essential nexus, the question of rough proportionality needed to be determined on remand. Anderson Creek Partners, L.P. v. Cnty. of Harnett, No. 62PA21 (N.C. Aug. 19, 2022)

Discovery

Attorney-client privilege—communications with outside counsel—investigation of company policy violations—In a case involving alleged violations of a company's policies on sexual harassment, the Business Court properly applied the law of attorney-client privilege where it mandated disclosure of all communications between the company and outside counsel that were unrelated to the provision of legal services but protected communications for which the primary purpose was the giving or receiving of legal advice. Buckley, LLP v. Series 1 of Oxford Ins. Co., NC, LLC, No. 219A21 (N.C. Aug. 19, 2022)

Evidence

Standard of review—misapplication of the law—Rule 702(a)—In a medical malpractice case, the Court of Appeals properly applied a de novo standard of review when determining that the trial court improperly excluded one of plaintiff's expert witnesses where the expert had not reviewed some of the medical records in the case. Although a trial court's ruling on a motion to exclude expert testimony is reviewable for an abuse of discretion, the issue on appeal involved a question of law: whether the trial court misapplied Evidence Rule 702(a) by implying that putative experts must base their opinions on all the facts or data available rather than on "sufficient" facts or data as prescribed by Rule 702(a)(1). Miller v. Carolina Coast Emergency Physicians, LLC, No. 222PA21 (N.C. Aug. 19, 2022)

Immunity

Governmental—fire protection services—acquisition of fire station—allegations of fraud—Where plaintiff volunteer fire department filed claims against defendant town based on the town's actions involving three contracts with plaintiff–for the provision of fire protection services for town residents, renovations to plaintiff's fire station, and the town's purchase and lease-back of the fire station to plaintiff–the contracts constituted one indivisible transaction, and the town was protected from plaintiff's fraud-related claims based on the doctrine of governmental immunity. Although plaintiff alleged that defendant's acquisition of the fire station from plaintiff was accomplished with fraud and was a proprietary action, defendant's acquisition of the fire station was for the provision of fire services for the town and thus was a governmental action rendering it immune from plaintiff's fraud claims. Providence Volunteer Fire Dep't, Inc. v. Town of Weddington, No. 47PA21 (N.C. Aug. 19, 2022)

Legislative—mayor—town council meeting—termination of fire department contracts—Where plaintiff volunteer fire department filed claims against defendant mayor based on the mayor's role in bringing about the termination of the town's contracts with plaintiff, the Supreme Court recognized legislative immunity as a bar to claims against public officials and held that the mayor's actions–beginning with actions before his election and culminating with his calling and setting the agenda for the town council meeting during which the council voted to terminate the contracts with plaintiff–were legislative actions entitled to legislative immunity. Providence Volunteer Fire Dep't, Inc. v. Town of Weddington, No. 47PA21 (N.C. Aug. 19, 2022)

Legislature

Authority to propose constitutional amendments—members from illegally gerrymandered districts—limitations—After some state legislators were determined to have been elected from illegally gerrymandered districts, their authority as de facto officers could be used to pass ordinary legislation but did not automatically extend to the proposal of amendments to the North Carolina Constitution (in this instance, regarding an income tax cap and voter identification), which must follow heightened procedural requirements. Further, the subsequent ratification of the amendments by popular vote did not cure the deficiencies of the unconstitutional election process. In order to determine whether these constitutional amendments may stand, the matter was remanded for the trial court to conduct an evidentiary hearing and to enter findings of fact and conclusions of law addressing multiple factors, including whether the votes of the unconstitutionally elected legislators could have been decisive in passing the proposed amendments and whether those amendments could have a significant impact on democratic accountability in or access to the election process going forward. N.C. State Conf. of NAACP v. Moore, No. 261A18-3 (N.C. Aug. 19, 2022)

Authority to propose constitutional amendments—political question doctrine—justiciability analysis—Where some state legislators were determined to have been elected from illegally gerrymandered districts, the question of whether their authority to propose amendments to the North Carolina Constitution was limited was not purely a political question because it involved the interpretation and application of constitutional provisions, and therefore was properly before the Supreme Court. N.C. State Conf. of NAACP v. Moore, No. 261A18-3 (N.C. Aug. 19, 2022)

Medical Malpractice

9(j) certification—expert—reasonable expectation of qualification and testimony—at time of complaint—In a medical malpractice case, the trial court properly denied defendant-hospital's motion to dismiss plaintiff's complaint for noncompliance with Evidence Rule 9(j), where the complaint facially complied with Rule 9(j)'s certification requirements but where it was later discovered that plaintiff's Rule 9(j) expert was unwilling to testify that the hospital violated the applicable standard of care in one of the ways alleged in the complaint. The record contained ample evidence that showed–when taken in the light most favorable to plaintiff–plaintiff reasonably believed at the time her complaint was filed that her expert would be willing to testify against the hospital, including the expert's affidavit expressing that willingness. Further, the record showed that the expert remained willing to testify that the hospital violated the applicable standard of care under at least one of the other theories mentioned in plaintiff's complaint. Miller v. Carolina Coast Emergency Physicians, LLC, No. 222PA21 (N.C. Aug. 19, 2022)

Nurses

Medical malpractice claim—professional duty of care—evidence of breach of standard of care—exclusion improper—In a medical malpractice action arising from injuries sustained by a young girl during an anesthesia mask induction procedure, a new trial was required because the trial court improperly excluded evidence regarding whether the certified registered nurse anesthetist (CRNA) who conducted the procedure breached his professional duty of care. The Supreme Court overruled the principle stated in Byrd v. Marion Gen. Hosp., 202 N.C. 337 (1932), that nurses could not be held legally responsible for decisions made when diagnosing or treating patients under the direction of a supervising physician, and held that nurses may be held liable for negligence or medical malpractice if found to have breached the applicable professional standard of care in carrying out their duties. Connette v. Charlotte-Mecklenburg Hosp. Auth., No. 331PA20 (N.C. Aug. 19, 2022)

Termination of Parental Rights

Neglect—likelihood of future neglect—willful failure to make reasonable progress—willfulness—required findings—An order terminating a mother's parental rights in her three children based on neglect (N.C.G.S. § 7B-1111(a)(1)) and failure to make reasonable progress in correcting the conditions leading to the children's removal (N.C.G.S. § 7B-1111(a)(2)) was vacated, where the trial court failed to enter a specific finding regarding the probability of future neglect if the children were returned to the mother's care–which was a necessary finding for termination under section 7B-1111(a)(1) where the children had been separated from the mother for a period of time–and the court also failed to determine whether the mother's failure to make reasonable progress was willful. Because some of the court's findings and some evidence in the record could have supported these necessary determinations, the matter was remanded for further proceedings. In re M.B., No. 325A21 (N.C. Aug. 19, 2022)

Trusts

Subject matter jurisdiction—pay order—new pleadings not required—Where plaintiffs filed actions challenging certain amendments to their father's revocable trust removing them as beneficiaries, the trial court had subject matter jurisdiction to issue an order directing the trustee to make distributions to the beneficiaries for the legal fees incurred in their defense of the trust amendments. The defending beneficiaries were not required to file pleadings to invoke the trial court's jurisdiction on their motions; rather, their motions within the actions commenced by plaintiffs' complaints were sufficient. Wing v. Goldman Sachs Tr. Co., N.A., No. 488PA20 (N.C. Aug. 19, 2022)

Trustee—power to make distributions—during pendency of litigation challenging trust amendments—court order—Where plaintiffs filed actions challenging certain amendments to their father's revocable trust removing them as beneficiaries, the trial court did not err by ordering the trustee–at the trustee's own request–to make distributions to the beneficiaries for the legal fees incurred in their defense of the trust amendments. The trustee had the power to exercise its discretion to make such distributions, and the record supported the trial court's order compelling the distributions. Further, the Court of Appeals erred by applying N.C.G.S. § 31-36 (a statute applicable to will caveats) in this trust proceeding. Wing v. Goldman Sachs Tr. Co., N.A., No. 488PA20 (N.C. Aug. 19, 2022)


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