Supreme Court - Digested Index

4 November 2022

Appeal and Error

Order granting motion to dismiss—de novo review—no request by parties for findings—remand not appropriate—In a case involving allegations of fraud against a bank, where the trial court granted defendant's motion to dismiss for failure to state a claim, the Court of Appeals erred by remanding the case to the trial court for further findings of fact instead of reviewing de novo whether plaintiffs' complaint contained allegations sufficient to support their claims for relief. The trial court was not required to include any factual findings or conclusions of law in its order, and none were requested by either party. Taylor v. Bank of Am., N.A., No. 102A20-2 (N.C. Nov. 4, 2022)

Preservation of issues—criminal case—denied request for jury instruction—self-defense—request constituted objection—In a prosecution for assault on a female and other related charges, defendant properly preserved for appellate review his challenge to the trial court's refusal to instruct the jury on self-defense where, although defendant expressly agreed to the trial court's planned instructions during the charge conference and again after the court finished instructing the jury, defendant's request for a self-defense instruction–which he made right before the court instructed the jury–constituted an "objection" for purposes of Appellate Rule 10(a)(2). Further, defendant's failure to file a pre-trial notice of his intent to assert self-defense as required under N.C.G.S. § 15A-905(c)(1) did not preclude him on appeal from challenging the trial court's refusal to instruct on self-defense, where the court's decision did not appear to be the imposition of a discovery sanction under section 15A-910(a)(4) and, even if that had been the court's intent, it failed to take the procedural steps necessary to justify such a sanction. State v. Hooper, No. 382A21 (N.C. Nov. 4, 2022)

Assault

On a female—self-defense—jury instruction—sufficiency of evidence—In a prosecution for assault on a female and other charges arising from an altercation between defendant and his child's mother, in which the woman shot defendant after he choked and punched her, the trial court did not err by denying defendant's request for a jury instruction on self-defense where the evidence–which presented multiple versions of what happened during the altercation–did not indicate that defendant assaulted the woman based on a perceived need to protect himself against unlawful force on the woman's part. Even under the version of events most favorable to defendant–where the woman brandished the gun, defendant asked her to relinquish the weapon, she fired one shot, a scuffle ensued, and then the woman shot defendant's leg–there was no evidence that the woman pointed the gun in the absence of provocation by defendant, especially given testimony stating the woman feared that defendant would kill her if she did not have the gun. State v. Hooper, No. 382A21 (N.C. Nov. 4, 2022)

Associations

Non-judicial power of sale—North Carolina Condominium Act—plain language of Act and declaration—A condominium formed in 1982, prior to the enactment of the N.C. Condominium Act in 1985, had the power of sale for foreclosure pursuant to section 3-116 of the Act for nonpayment of an assessment that occurred after 1 October 1986 where the plain language of the Act stated that section 3-116 applied "to all condominiums created in this State on or before October 1, 1986, unless the declaration expressly provides to the contrary" and the condominium's declaration did not expressly provide to the contrary. A reference in the declaration to the intent to submit the property to the N.C. Unit Ownership Act, which did not expressly exclude foreclosure by power of sale, simply satisfied a registration requirement and did not bar the use of foreclosure by power of sale. In re Foreclosure of a Lien by Exec. Off. Park of Durham Ass'n against Rock, No. 240PA21 (N.C. Nov. 4, 2022)

Child Abuse, Dependency, and Neglect

Adjudication—conditions existing at the time of the petition's filing—alternative placement with family—The trial court did not err in adjudicating a child as dependent by examining the conditions existing at the time the petition was filed as required by N.C.G.S. § 7B-802 (rather than at the time of the adjudication) and determining that–at the time the petition was filed–the child, whose mother had committed a felony assault causing serious bodily injury to the child, had no alternative placement options with family because the alleged father's whereabouts were unknown and no home studies with other relatives had been completed. In re L.N.H., No. 393PA20 (N.C. Nov. 4, 2022)

Initial disposition—elimination of reunification efforts—written findings—felony assault resulting in serious bodily injury to the child—remand—In a juvenile case arising from reports that respondent-mother had burned and struck her infant, although the trial court's written findings were insufficient to support the elimination of reunification efforts as an initial disposition following adjudication, the record did contain sufficient evidence to support elimination of reunification efforts as an initial disposition based on respondent's commission of a felony assault resulting in serious bodily injury to the infant, pursuant to N.C.G.S. § 7B-901(c)(3)(iii). Therefore, the relevant portion of the trial court's order was vacated and the matter was remanded for entry of appropriate findings on the matter. In re L.N.H., No. 393PA20 (N.C. Nov. 4, 2022)

Underlying case files—admitted in previous hearing—judicial notice—failure to object—waiver of appellate review—In a juvenile case, by failing to lodge an objection, respondent-mother waived appellate review of the trial court's decision to take judicial notice of medical records that had been admitted at a previous hearing regarding nonsecure custody of her juvenile. In re L.N.H., No. 393PA20 (N.C. Nov. 4, 2022)

Underlying case files—judicial notice—no objection—effective assistance of counsel—In a juvenile case, the decision of respondent-mother's counsel not to object to the trial court taking judicial notice of certain medical records did not constitute ineffective assistance of counsel where the trial court had already allowed testimony regarding how respondent had burned and struck her infant and where the medical records contained the same information about the source of the infant's injuries. Counsel stated that his reason for not objecting was because the records were already in evidence; in addition, neither appellate court had directly addressed whether a trial court may, at a later adjudication hearing, judicially notice evidence that has previously been admitted at a hearing regarding continuance of non-secure custody. In re L.N.H., No. 393PA20 (N.C. Nov. 4, 2022)

Class Actions

Class certification—common predominating issue—DPS inmates—solitary confinement settings—The trial court did not abuse its discretion by denying plaintiffs' motion for class certification where plaintiffs were inmates in the custody of the N.C. Department of Public Safety (DPS) who were being or would be subjected to solitary confinement and were alleging that DPS's policies and practices concerning five types of restrictive housing assignments violated the state constitution. Specifically, there was no abuse of discretion in the trial court's conclusion that plaintiffs had failed to demonstrate a common predominating issue among the proposed class members where plaintiffs presented insufficient evidence connecting the five challenged types of restrictive housing assignments to an alleged uniform risk of harm, and where risk of harm depended significantly upon the penological purposes served, the duration and length of stay, the procedural safeguards, and the relevant attendant circumstances of each type of housing assignment. Dewalt v. Hooks, No. 165A21 (N.C. Nov. 4, 2022)

Constitutional Law

Interstate sovereign immunity—waiver—sue and be sued clause—out-of-state public university—local office registered as foreign nonprofit—An Alabama public university that operated a recruiting office in North Carolina (to enroll students from this state in online courses) explicitly waived its sovereign immunity from being sued in North Carolina by a former employee raising intentional tort claims when it registered its local office as a foreign nonprofit corporation–which rendered it subject to the sue and be sued clause of the North Carolina Nonprofit Corporation Act (N.C.G.S. § 55A-3-02(a)(1))–and when it obtained a certificate of authority to conduct business in this state–which signaled its consent to be treated like a domestic corporation of like character and to be sued in North Carolina. Farmer v. Troy Univ., No. 457PA19-2 (N.C. Nov. 4, 2022)

North Carolina—education provisions—fundamental right to sound basic education—The Supreme Court reaffirmed the principle stated in Leandro v. State, 346 N.C. 336 (1997) and Hoke Cnty. Bd. of Educ. v. State, 358 N.C. 605 (2004), that the education provisions of the North Carolina Constitution (including Article I, Section 15 and Article IX, Section 2) expressly establish the right of every child in North Carolina to be given the opportunity to receive at least a sound basic education, a right that the State has an affirmative duty to protect and maintain. Hoke Cnty. Bd. of Educ. v. State of N.C., No. 425A21-2 (N.C. Nov. 4, 2022)

Public school funding—failure to provide—equitable remedy—inherent power of judiciary to grant—ordering the transfer of state funds—The North Carolina Constitution requires the General Assembly to adequately fund the public school system in order to fulfill the State's constitutional duty to provide to every child in North Carolina the opportunity to receive a sound basic education, and it gives the judiciary inherent power to uphold constitutional rights; thus, in the exceedingly rare and extraordinary circumstance where the General Assembly continually fails to meet its obligations to provide adequate funds to meet the constitutional minimum standard for public education, a court may, after exhibiting the appropriate deference and after established methods of seeking a remedy fail, order as an equitable remedy the transfer of adequate available state funds. Hoke Cnty. Bd. of Educ. v. State of N.C., No. 425A21-2 (N.C. Nov. 4, 2022)

Public school funding—right to sound basic education—ongoing violation—remedy—transfer of state funds—Where the state public education system was constitutionally deficient due to the State's continued failure to provide to all children the opportunity to receive a sound basic education–as set forth in Leandro v. State, 346 N.C. 336 (1997), and Hoke Cnty. Bd. of Educ. v. State, 358 N.C. 605 (2004)–the extraordinary circumstances of the State's ongoing constitutional violation and the failure of the legislative and executive branches to correct those educational deficiencies despite years of opportunity required the judiciary to exercise its inherent power to fashion an appropriate equitable remedy. The trial court did not err when it ordered the State to transfer funds to comply with portions of the State's Comprehensive Remedial Plan based on conclusions that the violation was statewide and that the trial court had shown proper deference to the other branches prior to taking this step. However, the trial court's subsequent order rescinding the transfer requirement–based on a mistaken conclusion, which required reversal, that it lacked authority to order the transfer–was vacated and the matter remanded to the trial court for the narrow purpose of recalculating the amount of funds to be transferred, subject to the 2022 state budget. Hoke Cnty. Bd. of Educ. v. State of N.C., No. 425A21-2 (N.C. Nov. 4, 2022)

Public school funding—role of General Assembly—appropriations power—subject to duty to provide sound basic education—The education provisions of the North Carolina Constitution (including Article I, Section 15 and Article IX, Section 2) require the General Assembly to wield its appropriations power in accordance with its contemporaneous duty to provide every child in every school district the opportunity to receive at least a sound basic education. Hoke Cnty. Bd. of Educ. v. State of N.C., No. 425A21-2 (N.C. Nov. 4, 2022)

Right to counsel—forfeiture—defendant did not act egregiously—Defendant was entitled to a new trial for murder and related charges where the trial court violated defendant's right to counsel by determining that defendant had forfeited that right. Throughout the pendency of the case–during which defendant had five different court-appointed attorneys (two of whom withdrew of their own volition, two others withdrew at defendant's request due to differences related to the preparation of his defense, and one was appointed as standby counsel), he waived his right to counsel and agreed to proceed pro se, and he subsequently requested assistance of counsel due to the difficulties he was having in preparing his defense–defendant remained courteous and engaged with his case, he did not exhibit aggressive or disruptive behavior, and his actions did not rise to the level of serious obstruction of the trial proceedings. State v. Harvin, No. 485PA19 (N.C. Nov. 4, 2022)

Courts

Superior court—denial of petition for certiorari—motion to reinstate charges—discretion of district attorney—Where the State dismissed (with leave) charges against defendant for driving while impaired and driving without a license after defendant failed to appear in court and the district court denied defendant's motion to reinstate the charges, the superior court properly denied defendant's petition for writ of certiorari to review the district court's decision. Because the district attorney had the exclusive and discretionary power to place the criminal charges in dismissed-with-leave status pursuant to N.C.G.S. § 15A-932, defendant was not entitled to–and the district court lacked authority to order–the reinstatement and calendaring of his charges. State v. Diaz-Tomas, No. 54A19-3 (N.C. Nov. 4, 2022)

Criminal Law

Jury instructions—possession of a firearm by a felon—requested instruction—justification defense—After defendant's trial for murder and possession of a firearm by a felon, in which the trial court denied defendant's request for a jury instruction on justification as an affirmative defense to the firearm charge and he was subsequently convicted, the Court of Appeals' decision holding that defendant was entitled to the instruction (and to a new trial) was reversed because the evidence–even when viewed in the light most favorable to defendant–indicated that defendant at least negligently placed himself in a situation where he would be forced to engage in criminal conduct. Specifically, defendant went to the scene of a gang fight to rescue his brother, left after breaking up the fight, but then returned and remained at the scene for twenty-five minutes (resulting in the confrontation at issue at trial) despite witnessing the fight, knowing he was in gang territory, hearing his brother express a willingness to fight again, and being threatened by a gang member. State v. Swindell, No. 294A21 (N.C. Nov. 4, 2022)

Jurisdiction

Personal—Calder jurisdiction—applicability—unnecessary—In the State's action against a chemical company and its two out-of-state corporate successors, where the State alleged that the chemical company–which faced mounting liabilities for releasing harmful chemicals into the environment–underwent significant corporate restructuring and transferred its assets to the successors in order to limit its future liability, the Supreme Court declined to determine whether personal jurisdiction over the successors would be proper under Calder v. Jones, 465 U.S. 783 (1984), where it had already determined that both due process and North Carolina law permitted the trial court to exercise personal jurisdiction by imputing the chemical company's liabilities to the successors. State ex rel. Stein v. E.I. DuPont de Nemours & Co., No. 436A21 (N.C. Nov. 4, 2022)

Personal—over corporate successor—by imputation of predecessor's liabilities—due process—In the State's action against a chemical company and its two out-of-state corporate successors, where the State alleged that the chemical company–which faced mounting liabilities for releasing harmful chemicals into the environment–underwent significant corporate restructuring and transferred its assets to the successors in order to limit its future liability, due process permitted the trial court to exercise personal jurisdiction over the successors (even though they had no direct contacts with North Carolina) where the chemical company was subject to personal jurisdiction in North Carolina and where North Carolina law permitted the court to impute the chemical company's liabilities to the successors on two grounds: first, the successors expressly agreed to assume those liabilities by written agreement, and second, the State sufficiently alleged in its complaint that the successors participated in an asset transfer intended to defraud the State as a creditor. State ex rel. Stein v. E.I. DuPont de Nemours & Co., No. 436A21 (N.C. Nov. 4, 2022)

Obstruction of Justice

Felony—by intentionally providing false and fabricated statements—sufficiency of evidence—circumstantial—The State introduced sufficient evidence to convict defendant-supervisor of felony obstruction of justice based on the intentional provision of false statements to a State Bureau of Investigation agent where defendant falsely stated that his employee performed certain types of work, and where the agent testified–and circumstantial evidence allowed the reasonable inference–that defendant's false statements caused the agent to change the steps and process of his investigation. State v. Bradsher, No. 13PA21 (N.C. Nov. 4, 2022)


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