Constitutional sentencing issue—failure to object—not preserved for review—Where defendant failed to lodge a contemporaneous objection to a constitutional issue before the sentencing court, appellate review of the Eighth Amendment argument was barred by N.C. Rule of Appellate Procedure 14(b)(2) and the Supreme Court's previous holdings that constitutional questions not raised and passed on by the trial court will not ordinarily be considered on appeal. State v. Meadows, 371 N.C. 742 (2018) (Author: Justice Cheri Beasley)

Nonconstitutional sentencing issues—failure to object—preserved for review—Defendant's nonconstitutional sentencing issues were preserved for appellate review even though she failed to object before the sentencing court. N.C. Rule of Appellate Procedure 10(a)(1) did not require a contemporaneous objection because the trial court knew or should have known that defendant sought the minimum possible sentence. The issues were also preserved for review by N.C.G.S. § 15A-1446(d)(18), which has been upheld because it does not conflict with the N.C. Rules of Appellate Procedure. State v. Meadows, 371 N.C. 742 (2018) (Author: Justice Cheri Beasley)

Record—insufficient—In a case concerning a leaking sprinkler system in a leased building, claims against several defendants were remanded for reconsideration where the record was not sufficiently developed for consideration of the involvement of those defendants. Morrell v. Hardin Creek, Inc., 371 N.C. 672 (2018) (Author: Justice Michael Morgan)

Direct claim by shareholder—voter dilution—personal injury distinct from corporation—standing—Where the terms of an acquisition agreement between two tobacco companies diluted the voting power of a subset of the purchasing company's minority shareholders, plaintiff shareholder had standing to bring a direct claim against the 42% shareholder, British American Tobacco (BAT), for breach of fiduciary duty. The alleged dilution of plaintiff's voting power-based on BAT's 42% voting power being permitted to remain the same at the expense of other shareholders-harmed plaintiff and the non-BAT shareholders but not the corporation itself. Plaintiff's alleged personal injury in conjunction with his claim that BAT breached a fiduciary duty to himself and non-BAT shareholders was sufficient to confer subject matter jurisdiction on the Court. Corwin v. British Am. Tobacco PLC, 371 N.C. 605 (2018) (Author: Chief Justice Mark Martin)

Minority shareholder—fiduciary duties—Where plaintiff shareholder filed a class action suit asserting a claim for breach of fiduciary duty against a 42% shareholder, British American Tobacco (BAT), because the terms of an acquisition agreement resulted in the dilution of plaintiff's voting power, the allegations of the complaint, if true, failed to satisfy the actual control test under Delaware law for a minority shareholder to owe fiduciary duties to other shareholders. Considering the restrictions in the Governance Agreement on BAT's power along with the absence of allegations of coercive or otherwise controlling actions on the part of BAT, plaintiff failed to allege that BAT exercised such domination and control over the purchasing company's board that BAT was indistinguishable from a majority shareholder. The Court did not need to decide whether to follow Delaware's rule that a minority shareholder can owe fiduciary duties to other shareholders because the complaint would still fail under that rule. Corwin v. British Am. Tobacco PLC, 371 N.C. 605 (2018) (Author: Chief Justice Mark Martin)

Jury instructions—actual and constructive possession—one theory of possession not supported by evidence—Where defendant was on trial for possession of a firearm by a felon and the trial court instructed the jury, over defendant's objection, on both actual and constructive possession even though the evidence only supported the theory of actual possession, the Court of Appeals correctly determined that the trial court erred by allowing the jury to potentially convict defendant of possession of a firearm by a felon on the basis of a constructive possession theory. State v. Malachi, 371 N.C. 719 (2018) (Author: Justice Sam Ervin, IV)

Jury instructions—unsupported instruction—no prejudice—Where defendant was on trial for possession of a firearm by a felon and the trial court instructed the jury, over defendant's objection, on both actual and constructive possession even though the evidence only supported the theory of actual possession, defendant failed to satisfy the Supreme Court that there was a reasonable possibility that, in the absence of the erroneous constructive possession instruction, the jury would have acquitted defendant. State v. Malachi, 371 N.C. 719 (2018) (Author: Justice Sam Ervin, IV)

Jury instructions—unsupported instruction—subject to harmless error analysis—Where defendant was on trial for possession of a firearm by a felon and the trial court instructed the jury, over defendant's objection, on a theory of possession unsupported by the evidence, the Supreme Court held that defendant's challenge to the delivery of the trial court's unsupported instruction was subject to traditional harmless error analysis. The Court declined defendant's request to adopt a rule that such error is requires automatic reversal. State v. Malachi, 371 N.C. 719 (2018) (Author: Justice Sam Ervin, IV)

Solicitation—distinguished from attempt—The trial court should have granted defendant's motion to dismiss charges of attempted murder where defendant arranged with a hired killer (actually an undercover officer) to kill his former wife, counseled the hired killer on how to complete that action, and paid the hired killer in full. North Carolina's definition of "attempt" has developed through the common law rather than through the model penal code, as it has some other states. Defendant's acts were all part of the solicitation, not the execution of the crime solicited. There was no evidence to establish that defendant committed an overt act that would have resulted in the killing in the ordinary and likely course or things. State v. Melton, 371 N.C. 750 (2018) (Author: Justice Robin Hudson)

Breach of fiduciary duty—constructive fraud—fiduciary relationship—insufficiently alleged—The trial court did not err in an action between real estate investors by dismissing plaintiffs' hybrid constructive fraud and breach of fiduciary duty claim for failure to state a claim upon which relief could be granted. Plaintiffs insufficiently alleged a fiduciary relationship between the investors as a matter of law or fact. Azure Dolphin, LLC v. Barton, 371 N.C. 579 (2018) (Author: Justice Sam Ervin, IV)

Lease—exculpatory clause—insurance coverage—The trial court improperly granted summary judgment in favor of defendant Hardin Creek, the landlord in a landlord-tenant dispute, where the lease included a clause waiving liability for negligence. The lease explicitly exempted the parties from all claims and liabilities arising from or caused by any hazard covered by insurance on the leased premises regardless of the cause of the damage or loss. Morrell v. Hardin Creek, Inc., 371 N.C. 672 (2018) (Author: Justice Michael Morgan)

Lease—exculpatory clause—insurance coverage—counterclaims—The trial court correctly granted summary judgment for plaintiffs on a defendant's counterclaims in an action that rose from a leaking sprinkler system in a leased building. An exculpatory clause in the lease for damages covered by insurance barred the counterclaims. Morrell v. Hardin Creek, Inc., 371 N.C. 672 (2018) (Author: Justice Michael Morgan)

Underinsured motorist coverage—collateral for purposes of collateral source rule—In a case arising from an automobile accident, the trial court erred by crediting a $145,000 payment made to plaintiff under his own underinsured motorist (UIM) coverage against the $230,000 judgment that plaintiff obtained against defendant where plaintiff's UIM carrier elected to waive its statutory subrogation rights. Payments from UIM coverage are collateral for purposes of the collateral source rule. In this case, one party or the other would receive a "windfall" as a result of the Supreme Court's decision, and the better option, which was most consistent with the policy reasons for the collateral source rule, was to allow the plaintiff to retain the windfall that resulted from his foresight in voluntarily electing to purchase UIM coverage rather than allowing defendant, who failed to purchase enough liability coverage, to be the ultimate beneficiary of plaintiff's prudent decision. Hairston v. Harward, 371 N.C. 647 (2018) (Author: Justice Sam Ervin, IV)

Declaratory ruling issued by Board of Physical Therapy Examiners—dry needling as physical therapy—consistent with statutes and administrative rules—Where the N.C. Board of Physical Therapy Examiners (Physical Therapy Board) issued a declaratory ruling that dry needling constitutes physical therapy, the Supreme Court affirmed the decision of the Business Court upholding the declaratory ruling. Because the Physical Therapy Board's declaratory ruling and underlying policy statement were consistent with the statutes and administrative rules that the Board was charged with interpreting and administering, the Supreme Court deferred to the Board's interpretations of those same statutes and rules in concluding that dry needling is a part of the practice of physical therapy. The Supreme Court rejected the N.C. Acupuncture Licensing Board's arguments that the Physical Therapy Board inappropriately used a policy statement to usurp the authority of the Rules Review Commission, that the Physical Therapy Board expanded the scope of the practice of physical therapy in contravention of the Administrative Procedure Act, and that dry needling could not be part of the practice of physical therapy because it is acupuncture. N.C. Acupuncture Licensing Bd. v. N.C. Bd. of Physical Therapy Exam'rs, 371 N.C. 697 (2018) (Author: Justice Barbara Jackson)

Removal of LLC manager—foreign organization—pre-suit demand requirement—futility exception—The trial court did not err by dismissing plaintiffs' claims for removal of Mr. Barton as manager or general partner of certain investment entities where the claims were derivative; the laws of California and Oregon, where the entities were organized, applied to the question of pre-suit demand; and the demand and the explanation needed in the pleadings for the futility exception to the demand requirement were not present. Azure Dolphin, LLC v. Barton, 371 N.C. 579 (2018) (Author: Justice Sam Ervin, IV)

Second amendment to complaint—undue delay—The trial court did not abuse its discretion by denying plaintiffs' second motion to amend the complaint. There was ample support for the trial court's conclusion that plaintiff's second amendment involved undue delay, suggested a dilatory motive, and was neither accompanied by a brief nor a statement of the position of opposing counsel, as required by the applicable Business Court Rules. Azure Dolphin, LLC v. Barton, 371 N.C. 579 (2018) (Author: Justice Sam Ervin, IV)

Safekeeping order—not overruled—Defendant was not entitled to relief where she argued that the judge who sentenced her overruled the safekeeping order of the trial judge trial by sentencing her. A judge other than the trial judge may conduct a sentencing hearing, and there was no indication that the trial judge wished to retain jurisdiction over the matter or delay sentencing. State v. Meadows, 371 N.C. 742 (2018) (Author: Justice Cheri Beasley)

Within statutory limit—presumed regular and valid—Defendant was not entitled to relief where she argued that the judge who sentenced her abused his discretion. The sentence was within the statutory limit and thus presumed regular and valid where the record showed no indication that the judge considered irrelevant or improper matters in determining the severity of the sentence. State v. Meadows, 371 N.C. 742 (2018) (Author: Justice Cheri Beasley)

Failure to state a claim—underlying constructive fraud claim dismissed—The trial did not err by dismissing plaintiffs' unfair and deceptive practices claim for failure to state a claim upon which relief could be granted where the claim was based on a claim for constructive fraud, the dismissal of which was upheld elsewhere in the opinion. Azure Dolphin, LLC v. Barton, 371 N.C. 579 (2018) (Author: Justice Sam Ervin, IV)

Motion to change—as of right and discretionary—interlocutory—An answer is not required before the filing of a motion for a discretionary change of venue, and the trial court in this case had the authority to consider such a motion. However, the trial court's discretionary determination was interlocutory and affected no substantial right of either party and was properly dismissed by the Court of Appeals. Stokes v. Stokes, 371 N.C. 770 (2018) (Author: Chief Justice Paul Newby)

Handwritten codicil—reference to amended portion—present testamentary intent ambiguous—Where a properly attested self-proving will contained a handwritten codicil that referenced a provision of the will-"DO NOT HONOR ARTICLE IV VOID ARTICLE IV"-the will and the holographic codicil together clearly evinced testamentary intent by referencing the portion of the will to amend. But a genuine issue of material fact existed as to whether the phrase "begin[n]ing 7-3-03" showed the testator's then-present testamentary intent. In re Will of Allen, 371 N.C. 665 (2018) (Author: Chief Justice Paul Newby)

Findings—insufficient—reliance on Parson's presumption not clear—A worker's compensation case was remanded for further findings clarifying the basis of the award where it was not clear whether the Industrial Commission made a finding of causation independent of any presumption. Pine v. Wal-Mart Assocs., 371 N.C. 707 (2018) (Author: Justice Robin Hudson)