Appeal to Supreme Court—based on Court of Appeals dissent—new theory asserted in dissent—review declined—In an appeal to the Supreme Court based on a dissent from the Court of Appeals, where a business sought to overturn the trial court's order upholding a towing company's statutory lien on one of the business's trucks and authorizing the sale of the truck, the Supreme Court declined to review the dissent's theory of the case–that the towing company unlawfully converted the truck for personal use and, therefore, the lien should have been reduced based on the truck's loss in fair market value–because it was not first raised and argued by the parties and addressing it would require access to evidence that no party presented at trial and findings of fact that the trial court never made. Bottoms Towing & Recovery, LLC v. Circle of Seven, LLC , No. 189A22 (N.C. Aug. 23, 2024) (Author: Justice Richard Dietz)

Mootness—denial of habeas petition—review of lower appellate court decision—clarification required—The Supreme Court exercised its jurisdiction pursuant to the North Carolina Constitution to review the decision of the Court of Appeals regarding the denial of a habeas corpus petition because, although the case was moot, review was necessary to clarify the scope of the writ of habeas corpus and the public interest exception and to resolve conflicting statements of law between the lower appellate court's opinion and established law. State v. Daw , No. 174PA21 (N.C. Aug. 23, 2024) (Author: Justice Phil Berger, Jr.)

With a deadly weapon inflicting serious injury—jury instructions—castle doctrine—proportionality of force used—improper—In a prosecution for assault with a deadly weapon inflicting serious injury arising from defendant having shot the victim after the victim entered defendant's front porch, the trial court erred by instructing the jury that defendant did "not have the right to use excessive force" when defending her home, even under the castle doctrine. Based on the statutory formulation of the castle doctrine, which provides that a lawful occupant of a home who uses deadly force against an intruder is presumed to have had a reasonable fear of imminent death or serious bodily harm, the jury could not consider the proportionality of defendant's force unless it found that: (1) defendant was not entitled to the presumption of reasonable fear, or (2) defendant qualified for the presumption to apply, but the State adequately rebutted the presumption. Instead of granting defendant a new trial, the matter was remanded to the Court of Appeals with instructions to analyze whether the trial court's error was prejudicial. State v. Phillips , No. 281A23 (N.C. Aug. 23, 2024) (Author: Justice Phil Berger, Jr.)

Neglect and dependency—adjudication order—steps for reviewing on appeal—sufficiency of findings and evidence—In a neglect and dependency matter, where the parties agreed on appeal that many of the trial court's adjudicatory findings of fact were based on inadmissible hearsay and should therefore be disregarded, the Supreme Court reiterated the proper steps for reviewing an adjudication order on appeal after disregarding unsupported findings: first, the appellate court must examine whether the remaining findings of fact support the trial court's conclusions of law; then, if those findings do not support the trial court's conclusions, the appellate court must examine whether the record contains sufficient evidence that could support the necessary findings. Here, the trial court's remaining findings did not support its legal conclusions, but the record contained clear, cogent, and convincing evidence that could have supported the necessary findings, which required vacating the adjudication order and remanding the matter to the trial court to enter a new order. In re A.J. , No. 206PA23 (N.C. Aug. 23, 2024) (Author: Justice Richard Dietz)

North Carolina—direct constitutional claims—colorable—selective enforcement of emergency executive order—State's sovereign immunity overcome—In a dispute between the Department of Health and Human Services (DHHS) and a racetrack owner, who publicly criticized and refused to comply with the governor's executive order prohibiting "mass gatherings" during the COVID-19 pandemic, the trial court properly denied the State's motion to dismiss based on sovereign immunity where the counterclaims brought by defendants (the racetrack and its owner) adequately alleged colorable constitutional claims under the Fruits of Their Labor Clause and Equal Protection Clause of the North Carolina Constitution sufficient to pierce the State's sovereign immunity. Specifically, defendants alleged that: the governor singled out defendants by pressuring the local sheriff to arrest the racetrack owner and, when the sheriff refused, ordering DHHS officials to shut down the racetrack as a health hazard; the governor took these actions to punish the racetrack owner rather than to address an actual health hazard at the racetrack; and DHHS officials did not take similar actions against other large outdoor venues whose owners did not openly criticize the emergency executive order. Kinsley v. Ace Speedway Racing, Ltd. , No. 280PA22 (N.C. Aug. 23, 2024) (Author: Justice Richard Dietz)

Condemnation—rights asserted by owner and developer—corollary suits pending—all pleaded issues regarding taking resolved—summary judgment proper—In a condemnation matter, where the property's owner (a condominium association) and a developer (to which the association had granted certain development rights with a set expiration date) asserted rights in the property at the time of the taking by the Department of Transportation (for a temporary construction easement) and, therefore, were both parties to the eminent domain action, the trial court did not err by granting summary judgment to and distributing settlement funds in favor of the developer even though the parties' corollary actions were not yet finalized. All of the issues pleaded in the taking action and argued at the hearing held pursuant to N.C.G.S. § 136-108 had been resolved, including the total amount of just compensation (which the parties settled via consent judgment) and issues related to the parties' relative interests in the taken property. Further, the trial court had discretion under section 136-117 to determine the apportionment of compensation between the parties, including that the developer was entitled to compensation for the loss of development rights, which was in accord with the assessment of both parties' appraisers. Dep't of Transp. v. Bloomsbury Ests., LLC , No. 250PA21-2 (N.C. Aug. 23, 2024) (Author: Justice Allison Riggs)

Hearsay—phone call between murder victim and niece—code name used for defendant—excited utterance exception—In defendant's prosecution for first-degree murder and robbery with a dangerous weapon, evidence that the victim called his niece the night before he was murdered and quickly said "Dianne to the house" before hanging up, which they both knew was a code name for defendant, was not improperly admitted because, although the statement was hearsay, it fell within the excited utterance exception since it was made in circumstances indicating that the victim was startled by the defendant's intention to come to his home (the phone call was hurried and brief, and the victim and defendant had experienced recent conflict in their relationship). State v. Davenport , No. 155PA22 (N.C. Aug. 23, 2024) (Author: Justice Anita Earls)

Murder and robbery trial—defendant's prior incarceration, gang affiliation, and tattoos—plain error analysis—prejudice prong not met—In defendant's prosecution for first-degree murder and robbery with a dangerous weapon, there was no plain error in the admission of evidence regarding defendant's prior incarceration, gang affiliation, and tattoos because, even if the evidence had been excluded, the jury probably would not have reached a different result in light of other evidence consisting of witness statements placing defendant at the scene of the crime and defendant's extrajudicial confession to another inmate that defendant killed the victim for money. State v. Davenport , No. 155PA22 (N.C. Aug. 23, 2024) (Author: Justice Anita Earls)

Summary denial—final judgment of court of competent jurisdiction—discharge provisions inapplicable—The trial court's summary denial of petitioner's application for a writ of habeas corpus was proper under the plain and definite language of N.C.G.S. § 17-4 because petitioner was detained by virtue of a final judgment of a court of competent criminal jurisdiction. Despite the unambiguous mandate of section 17-4, the Court of Appeals improperly extended its analysis to consider petitioner's argument that the COVID-19 pandemic created conditions making him eligible for discharge under section 17-33(2), and erroneously concluded that section 17-33(2) provided an exception to the general rule contained in section 17-4(2) for parties detained by virtue of criminal process. However, the discharge provisions in section 17-33 apply only to persons detained by virtue of civil process–which does not include criminal convictions–and do not provide an exception to section 17-4 because they only become relevant after an application to prosecute the writ has been granted and returned and a hearing has been held. State v. Daw , No. 174PA21 (N.C. Aug. 23, 2024) (Author: Justice Phil Berger, Jr.)

Sufficiency of indictments—human trafficking—multiple counts per victim—unit of prosecution—Each of four indictments charging defendant with multiple counts of human trafficking per victim over specified periods of time were sufficient to put defendant on notice of each offense because they contained the necessary elements of trafficking pursuant to N.C.G.S. § 14-43.11. Although defendant argued that he could be convicted of only one count per victim, the plain language of the statute makes clear that human trafficking is not one continuous offense, that a separate charge may be attached to each violation regardless of whether the same victim is involved, and that the offense is committed when a defendant "obtains" a victim–one of the essential elements of the offense–by any one of the alternative means listed in the statute. State v. Applewhite , No. 39A22 (N.C. Aug. 23, 2024) (Author: Justice Tamara Barringer)

Homeowner's fire insurance—notice of cancellation—statutory requirements—actual notice sufficient—Where plaintiff homeowners had actual notice that their provisional homeowner's fire insurance policy had been cancelled–based, in part, on evidence that plaintiffs received, signed, and cashed a check from defendant insurance company listing the policy number and refunding plaintiffs their excess premium–and, therefore, had a reasonable opportunity to procure other insurance before their house burned down two months later, the Supreme Court found it unnecessary to address the broader question of whether defendant's manner of notice–by mailing a letter of cancellation to plaintiffs that they claimed not to have received–was sufficient to meet the requirements of N.C.G.S. § 58-44-16(f)(10). Ha v. Nationwide Gen. Ins. Co. , No. 312A19-2 (N.C. Aug. 23, 2024) (Author: Justice Anita Earls)

Contributory negligence—fall through attic floor—open and obvious risk—failure to exercise reasonable care—Plaintiff was barred from asserting a negligence claim against defendant, who was the builder of her newly constructed home, for injuries plaintiff suffered when she was walking through her attic, stepped backward off of a plywood walkway without looking, and fell through a scuttle hole that defendant had cut into the attic floor. Plaintiff's failure to exercise reasonable care to avoid an open and obvious risk, particularly given her acknowledgment that she knew the attic floor was unsafe, contributed to her injuries as a matter of law; therefore, summary judgment was properly entered in favor of defendant. Cullen v. Logan Devs., Inc. , No. 155PA23 (N.C. Aug. 23, 2024) (Author: Justice Trey Allen)

Gross negligence—unsafe condition—alleged building code violation—conscious disregard for safety not shown—Plaintiff failed to show that defendant, the builder of her newly constructed home, acted with a bad purpose or reckless indifference to plaintiff's rights by constructing a scuttle hole in the attic floor–through which plaintiff fell to the floor below and severely injured herself–and, therefore, defendant was entitled to summary judgment on plaintiff's claim of gross negligence. Even if defendant violated the building code by covering over the hole in the lower floor's ceiling with drywall, there was no indication that defendant acted with conscious disregard for plaintiff's safety, and the scuttle hole presented the same amount of risk as the other insulation-covered areas of the attic that were unsafe to walk on. Cullen v. Logan Devs., Inc. , No. 155PA23 (N.C. Aug. 23, 2024) (Author: Justice Trey Allen)

With a dangerous weapon—taking of property—sufficiency of evidence—In a prosecution for murder and robbery, the State presented sufficient evidence to survive defendant's motion to dismiss the charge of robbery with a dangerous weapon, including that: the victim's wallet had contained a large sum of money the day before his murder and he had not planned to deposit the money until the next day; the victim's money, wallet, and cell phone were missing from his house where he was killed; the victim's body exhibited defensive wounds from a knife that was presumed to be the murder weapon, which supported the theory that his life was endangered or threatened; witness testimony and cell phone records linked defendant temporally and spatially with the crime; and defendant gave an extrajudicial confession to a fellow inmate that he killed the victim so that he could steal $10,000 from him. Although some of the evidence was circumstantial and the victim's items were never recovered, all of the evidence considered as a whole and in the light most favorable to the State established each element of the offense and that defendant was the perpetrator. State v. Davenport , No. 155PA22 (N.C. Aug. 23, 2024) (Author: Justice Anita Earls)

Prior record level—prior federal conviction—substantial similarity to N.C. offense—any error harmless—Any error by the trial court in calculating defendant's prior record level (to which he had not stipulated) without first comparing defendant's prior federal firearms conviction to any state offense was harmless because the record contained sufficient information demonstrating that the federal offense was substantially similar to the North Carolina offense of possession of a firearm by a felon. State v. Applewhite , No. 39A22 (N.C. Aug. 23, 2024) (Author: Justice Tamara Barringer)

Ordinance—land use buffer—conflicting text and table—interpretive provision—text controls—A county board of adjustment properly decided against installing a buffer between petitioner's property and a road being built next to an adjacent residential subdivision, where the county's zoning ordinance only required buffers between properties from different zoning districts and both of the properties involved here were in the same "R-1 residential" zoning district. Although the ordinance included a table suggesting that buffers were required based on either the zoning districts or the land uses of the subject and adjacent properties, the ordinance's introductory provision eliminated any internal ambiguity by clarifying that where the text and a table contradicted each other, the text would control. Arter v. Orange Cnty. , No. 229A23 (N.C. Aug. 23, 2024) (Author: Justice Richard Dietz)