Delinquent tax returns—fraudulent concealment—Where plaintiff sued defendant Certified Public Accountant and his firm for fraudulent concealment and punitive damages, alleging that defendants failed to properly prepare and file her delinquent tax returns and intentionally deceived her about the status of those returns, plaintiff presented sufficient evidence of both actual and constructive fraud to survive summary judgment. Plaintiff had an ongoing professional relationship with defendants related to the preparation and filing of her delinquent tax returns, and defendants knowingly misrepresented the status of the returns and negotiations with the IRS. Head v. Gould Killian CPA Grp., 371 N.C. 2 (2018) (Author: Chief Justice Paul Newby)

Delinquent tax returns—professional negligence—statute of repose—Where plaintiff sued defendant Certified Public Accountant and his firm for professional negligence, alleging that defendants failed to properly prepare and file her delinquent tax returns and intentionally deceived her about the status of those returns, plaintiff presented sufficient evidence of genuine issues of material fact regarding the scope of the parties' contractual relationship and the time the corresponding last act occurred-and thus when the statute of repose began to run-so that her claim for professional negligence should have survived summary judgment. Head v. Gould Killian CPA Grp., 371 N.C. 2 (2018) (Author: Chief Justice Paul Newby)

Discipline by state board—incorrect finding on appeal by Business Court—not reversible error—Where the Business Court affirmed the final decision of the N.C. State Board of Certified Public Accountant Examiners that found petitioners had violated rules and standards promulgated by the Board and that suspended the accounting firm's registration, the Supreme Court agreed with petitioners that the Business Court erred in finding that their failure to object to testimony from an expert witness before the Board constituted a waiver of petitioners' right to raise this objection on appeal. This error, however, did not affect the result of the case, and therefore it was not reversible. In re Johnson, 371 N.C. 53 (2018) (Author: Justice Barbara Jackson)

Discipline by state board—petitioners' refusal to provide records—substantial evidence to support findings—Where petitioners-a Certified Public Accountant and her firm-allegedly failed to fulfill the terms of a peer review contract by failing to pay for the peer review, and the N.C. State Board of Certified Public Accountant Examiners revoked the firm's registration for three years or until petitioners fulfilled the terms of the peer review contract, the Supreme Court rejected petitioners' argument that the Board lacked substantial evidence to support the finding that petitioners failed to comply with Government Auditing Standards and generally accepted auditing standards. The Board was unable to review petitioners' full work papers only because petitioners refused to provide them. It would undermine a fundamental purpose of a regulatory board for a regulated party to be able to escape review and disciplinary action by refusing to provide records solely in its possession. In re Johnson, 371 N.C. 53 (2018) (Author: Justice Barbara Jackson)

Failure to pay for peer review—discipline by state board—constitutional—Where petitioners-a Certified Public Accountant and her firm-allegedly failed to fulfill the terms of a peer review contract by failing to pay for the peer review, and the N.C. State Board of Certified Public Accountant Examiners revoked the firm's registration for three years or until petitioners fulfilled the terms of the peer review contract, the Supreme Court rejected petitioners' argument that the Board's decision violated the N.C. Constitution by exceeding the judicial powers reasonably necessary for the agency to serve its legislative purpose. The discipline imposed by the Board, based on its determination that petitioners had entered into a peer review contract but then failed to perform the terms of that contract, was consistent with its rules and regulations and appropriate to the purpose of the agency, guided by the standards established by the General Assembly and subject to judicial review. In re Johnson, 371 N.C. 53 (2018) (Author: Justice Barbara Jackson)

Medicaid reimbursements—class action—failure to exhaust administrative remedies or demonstrate futility—Where plaintiff medical practices sued the N.C. Department of Health and Human Services (DHHS) and the company that designed DHHS's software system for managing Medicaid reimbursements, alleging that they had not received reimbursement for Medicaid claims, the trial court correctly concluded that plaintiffs had failed to exhaust their administrative remedies and to demonstrate that available administrative remedies were inadequate. After receiving Remittance Statements indicating adverse determinations on Medicaid reimbursement claims, the providers failed to request a reconsideration review or to file a petition for a contested case, instead bypassing administrative procedures and filing a class action complaint in the trial court. In view of the inadequacy of notice, plaintiffs were still entitled to exhaust their available administrative remedies. Abrons Fam. Prac. & Urgent Care, PA v. N.C. Dep't of Health & Hum. Servs., 370 N.C. 443 (2018) (Author: Justice Barbara Jackson)

Father's consent—unnecessary—failure to show support —An adoption should have proceeded without the consent of the father where he did not demonstrate through an objectively verifiable record that he made the statutorily required reasonable and consistent payments for the support of the minor child before the adoption petition was filed. The father had sporadically put money into a lockbox but did not keep records.Justice Beasley dissenting.Justices Hudson and Morgan join in this dissenting opinion. In re Adoption of C.H.M., 371 N.C. 22 (2018) (Author: Chief Justice Paul Newby)

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)

Failure to preserve argument for appeal—Where defendant voluntarily met with detectives at the police station and was questioned for just under five hours before being placed under arrest and Mirandized, the trial's court's determination that the waiver forms introduced into evidence by the State "accurately reflect[ed] the required Miranda warnings" was supported by competent evidence in the record and not challenged by defendant. Defendant did not preserve the argument that officers employed the "question first, warn later" technique to obtain his confession in violation of Miranda and Seibert. State v. Johnson, 371 N.C. 870 (2018) (Author: Justice Cheri Beasley)

Ineffective assistance of counsel—sufficient evidence received at trial—merits addressed on appeal—The merits of an ineffective assistance of counsel claim were heard on appeal (as opposed to through a motion for appropriate relief) where defendant first raised his claim in a motion before trial and again in a hearing on the State's motion in limine, the court was able to receive evidence and make findings, and the cold record revealed that no further investigation was required. State v. McNeill, 371 N.C. 198 (2018) (Author: Justice Robin Hudson)

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)

Partial retrial ordered—authority of Court of Appeals—On the unusual facts of the case, the Court of Appeals did not err by awarding a partial rather than a full retrial in a medical malpractice case where the trial court set aside the verdict and entered an amended verdict. The only remedy available to the trial court was a new trial in whole or in part, the trial court's substantive decision to grant plaintiff relief from the original verdict was not disturbed on appeal, and the Court of Appeals had ample authority to order implementation of the relief that could be properly afforded to plaintiff on remand. Justus v. Rosner, 371 N.C. 818 (2018) (Author: Justice Robin Hudson)

Petition to Court of Appeals for writ of certiorari—absence of procedural rule—Where defendant pleaded guilty to driving while impaired and petitioned the Court of Appeals for review by writ of certiorari of the denial of her motion to dismiss, the Court of Appeals erroneously concluded that it was procedurally barred from issuing a discretionary writ because there was no procedural process under Rule of Appellate Procedure 21. The Court of Appeals had jurisdiction pursuant to N.C.G.S. § 15A-1444(e) to issue a writ of certiorari, and the absence of a procedural rule did not limit its jurisdiction or authority to do so. State v. Ledbetter, 371 N.C. 192 (2018) (Author: Justice Cheri Beasley)

Plain error—standard—The holding in State v. Lawrence, 365 N.C. 506 (2012), reaffirmed the legal principle that plain error does not exist where a defendant cannot show that the jury probably would have returned a different verdict absent the error. Lawrence did not hold that plain error is shown unless the evidence against defendant is overwhelming and uncontroverted. State v. Maddux, 371 N.C. 558 (2018) (Author: Justice Robin Hudson)

Preservation of issues—exclusion of testimony—not properly preserved—An argument by the Department of Transportation (DOT) that defendants did not properly preserve for appellate review the exclusion of a realtor's fair market value testimony was not properly before the N.C. Supreme Court. DOT's response to defendants' petition for discretionary review did not state any additional issues that DOT sought to present. Even so, defendants' offer of proof regarding the testimony was apparently sufficient to preserve the issue, regardless of whether defendants tried to call the witness to testify about fair market value at trial. N.C. Dep't of Transp. v. Mission Battleground Park, DST, 370 N.C. 477 (2018) (Author: Chief Justice Mark Martin)

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)

Sparse record—Supreme Court's constitutional and inherent authority—Court of Appeals decision—no precedential value—Where the record in a case was too sparse for adequate judicial review, the Supreme Court expressed no opinion on the merits of the case and exercised its constitutional and inherent authority to order that the decision of the Court of Appeals in the case had no precedential value. Sanchez v. Cobblestone Homeowners Ass'n of Clayton, Inc., 370 N.C. 624 (2018) (Author: Justice Per Curiam)

Disciplinary hearing—public reprimand—conduct prejudicial to administrative of justice—A deputy commissioner of the North Carolina Industrial Commission was publicly reprimanded for conduct in violation of Canons 1 and 2A of the North Carolina Code of Judicial Conduct and for conduct prejudicial to the administration of justice that brought the judicial office into disrepute in violation of N.C.G.S. § 7A-376. In re W.H.S., 370 N.C. 595 (2018) (Author: Justice Per Curiam)

Standing to file petition—not limited to director of county DSS where juvenile resides or is found—The Court of Appeals erred by holding that the Mecklenburg County Department of Social Services, Youth and Family Division, lacked standing when it filed a petition alleging that juvenile A.P., who was living in Cabarrus County, was abused, neglected, or dependent. The legislature did not intend to limit the class of parties who may invoke the court's subject matter jurisdiction in juvenile adjudication actions only to directors of county departments of social services in the county where the juvenile at issue resides or is found. In re A.P., 371 N.C. 14 (2018) (Author: Justice Cheri Beasley)

Defendant's statement to police—confession to one of three crimes—stipulation at trial—effect on credibility—harmless error—The trial court did not err in a prosecution for kidnapping, rape, and murder by admitting defendant's statements to police where defendant admitted only to the kidnapping, a fact to which he stipulated at trial, any prejudice caused by the admission of his statements was limited to the effect on lis credibility, and any effect on defendant's credibility would be harmless error due to the overwhelming evidence of his guilt. State v. McNeill, 371 N.C. 198 (2018) (Author: Justice Robin Hudson)

Questioning before Miranda warnings—Miranda and voluntariness inquiries—Where defendant voluntarily met with detectives at the police station and was questioned for just under five hours before being placed under arrest and Mirandized, the Court of Appeals erred by condensing the Miranda and voluntariness inquiries into one in its opinion concluding that defendant's inculpatory statements to law enforcement were involuntary. State v. Johnson, 371 N.C. 870 (2018) (Author: Justice Cheri Beasley)

Voluntariness—findings and conclusion supported—Where defendant voluntarily met with detectives at the police station and was questioned for just under five hours before being placed under arrest and Mirandized, the trial court's conclusion that defendant's inculpatory statements were voluntarily made was adequately supported by its findings of fact, and those findings were supported by competent evidence in the record. State v. Johnson, 371 N.C. 870 (2018) (Author: Justice Cheri Beasley)

—sentencing—juveniles—life without parole—not arbitrary or vague—There was no basis for concluding that the absence of a requirement of aggravating circumstances rendered the sentencing process for juveniles convicted of first-degree murder (other than felony murder) arbitrary or vague where defendant. was sentenced to life without parole. The statutory provisions require consideration of the factors found in Miller, which indicates that life wioiut parole should be exceedingly rare for juveniles. State v. James, 371 N.C. 77 (2018) (Author: Justice Sam Ervin, IV)

Confrontation Clause—statements made by deceased victim—ongoing emergency—nontestimonial—Where the trial court admitted, through the testimony of a police officer, statements made by the murder victim approximately nine months before the murder during a domestic dispute with defendant (her estranged husband), the Court of Appeals erred by holding that admission of the statements violated the Confrontation Clause of the U.S. Constitution. The statements were nontestimonial. They occurred during the course of an ongoing emergency that resulted from defendant entering the victim's apartment, detaining her there, and physically assaulting her; and they led to the officer's decision to enter the apartment to ensure that defendant had left and no longer posed a threat to the victim. State v. Miller, 371 N.C. 273 (2018) (Author: Justice Sam Ervin, IV)

Due process—cumulative effect—There was no due process violation in a prosecution for kidnapping, rape, and murder where defendant contended for such a violation from the cumulative effect of alleged ineffective assistance of counsel, admission of testimony that defendant's lawyers revealed the location of the victim to police, and the evidence driving from the discovery of the body, Defendant did not receive ineffective assistance of counsel and the trial court did not err in any evidentiary rulings. State v. McNeill, 371 N.C. 198 (2018) (Author: Justice Robin Hudson)

Effective assistance of counsel—disclosure's of location of victim's body—understanding with counsel—Defendant was not denied the effective assistance of counsel where he was charged with kidnapping, rape, and murder, his attorneys revealed the location of the victim's body, and defendant asserted on appeal that his attorneys erroneously advised him that they would shield his identity as the source of the information. The entire purpose of the disclosure, to which defendant agreed, was to show cooperation by defendant and the method of disclosure allowed an immediate inference of cooperation but avoided any inadvertent admission of guilt. Whether defendant's attorneys should have advised him to adopt a different strategy is a separate question which defendant did not raise. State v. McNeill, 371 N.C. 198 (2018) (Author: Justice Robin Hudson)

Effective assistance of counsel—investigation of case—A defendant received effective assistance of counsel where he was charged with kidnapping, rape, and murder and alleged that his attorneys did not conduct an adequate investigation before disclosing the location of the victim's body. The investigation was at an early stage so that there was no discovery file to examine, and defendant did not identify anything that the allegedly inadequate investigation failed to uncover which would have had any effect on the reasonableness of the strategic decision to make the disclosure. State v. McNeill, 371 N.C. 198 (2018) (Author: Justice Robin Hudson)

Ex post facto—juvenile sentencing for murder—revised statute—There was no ex post fact violation in the sentencing of a juvenile for murder where the revised statute under which the juvenile was sentenced required a choice between life imprisonment, the original sentence, or a lesser punishment. State v. James, 371 N.C. 77 (2018) (Author: Justice Sam Ervin, IV)

Ineffective assistance of counsel—Cronic claim—location of victim revealed—A defendant in the kidnapping, rape and murder of a 5 year old child received effective assistance of counsel, despite his claim of a breakdown of the adversarial process under United States v. Chronic, 466 U.S. 648 (1984), where his attorneys' disclosure of the location of the victim was a reasonable strategic decision. State v. McNeill, 371 N.C. 198 (2018) (Author: Justice Robin Hudson)

Ineffective assistance of counsel—revealing location of missing victim's body—A defendant who was eventually tried for the kidnapping, rape, first-degree murder, of a five-year-old girl received effective assistance of counsel where his attorneys disclosed the location of the victim's body. His attorneys had been involved in the case for one day, there was uncertainty over whether the victim was still alive, the weather was cold and rainy, there was a massive law enforcement search in the area, and the attorneys were concerned that the value of the information would diminish if the girl died or was found without defendant's information. There was other heavily incriminating evidence and attorneys' goal was to avoid the death penalty through a plea bargain or the mitigating circumstances of remorse and cooperation. A plea bargain was not secured before the information was released but defendant subsequently twice declined plea bargain offers to remove the death penalty. State v. McNeill, 371 N.C. 198 (2018) (Author: Justice Robin Hudson)

Law of the Land clause—job promotion—no property interest—The trial court did not err by granting the City's motion to dismiss a police officer's Article I, Section 19 claim. There is no authority recognizing a property interest in a job promotion, and the police officer conceded in his brief that no such property interest existed. Tully v. City of Wilmington, 370 N.C. 527 (2018) (Author: Justice Robin Hudson)

North Carolina—employer violation of own policy—refusal to consider appeal—exam required for promotion—police officer—The trial court erred by dismissing plaintiff police officer's constitutional claim arising under Article I, Section 1. A police officer states a claim under the North Carolina Constitution against his employer when that employer violates its own policy by refusing to consider his appeal regarding the validity of an examination required for a promotion. Tully v. City of Wilmington, 370 N.C. 527 (2018) (Author: Justice Robin Hudson)

North Carolina—session law creating Bipartisan State Board of Elections and Ethics Enforcement—challenge by Governor—chair and restructuring of county boards—Where the legislature created the Bipartisan State Board of Elections and Ethics Enforcement following the election of Roy A. Cooper III as Governor, the Supreme Court declined to express any opinion on the Governor's argument challenging the provisions of Session Law 2017-6 requiring that the office of the chair of the Bipartisan State Board be rotated between the state's two largest political parties and the provisions restructuring the county boards of election. Cooper v. Berger, 370 N.C. 392 (2018) (Author: Justice Sam Ervin, IV)

North Carolina—session law creating Bipartisan State Board of Elections and Ethics Enforcement—challenge by Governor—selection of Executive Director—Where the legislature created the Bipartisan State Board of Elections and Ethics Enforcement following the election of Roy A. Cooper III as Governor, and the Governor challenged the law as unconstitutionally infringing on his executive powers in violation of separation of powers, the Supreme Court, after holding unconstitutional the provisions of the law concerning the composition of the Bipartisan State Board, declined to reach the issue of whether the provisions governing the selection of the Executive Director constituted a separate violation of Article III, Section 5(4) of the North Carolina Constitution. Cooper v. Berger, 370 N.C. 392 (2018) (Author: Justice Sam Ervin, IV)

North Carolina—session law creating Bipartisan State Board of Elections and Ethics Enforcement—challenge by Governor—separation of powers—structure and operation of Board—Where the legislature created the Bipartisan State Board of Elections and Ethics Enforcement following the election of Roy A. Cooper III as Governor, and the Governor challenged the law as unconstitutionally infringing on his executive powers in violation of separation of powers, the Supreme Court held that the manner in which the membership of the Bipartisan State Board was structured and operated under Session Law 2017-6 impermissibly, facially, and beyond a reasonable doubt interfered with the Governor's ability to ensure that the laws are faithfully executed as required by Article III, Section 5(4) of the North Carolina Constitution. The state's Constitution does not permit the General Assembly to structure an executive branch commission such that the Governor is unable, within a reasonable period of time, to take care that the laws are faithfully executed because he is required to appoint half of the commission members from a list of nominees consisting of individuals who are likely not supportive of his policy preferences while the Governor also is given limited supervisory control over the agency and circumscribed removal authority over commission members. Cooper v. Berger, 370 N.C. 392 (2018) (Author: Justice Sam Ervin, IV)

North Carolina—session law creating Bipartisan State Board of Elections and Ethics Enforcement—challenge by Governor—standing—Where the legislature created the Bipartisan State Board of Elections and Ethics Enforcement following the election of Roy A. Cooper III as Governor, the three-judge trial court panel erred by dismissing the Governor's complaint for lack of standing, to the extent that it did so. Apart from the legislative leaders' contention that the Governor's claim was a nonjusticiable political question, which the Supreme Court rejected, the legislative leadership did not appear to contend explicitly that the Governor lacked the necessary personal stake in the outcome of the controversy. Cooper v. Berger, 370 N.C. 392 (2018) (Author: Justice Sam Ervin, IV)

North Carolina—session law creating Bipartisan State Board of Elections and Ethics Enforcement—challenge by Governor—subject matter jurisdiction—Where the legislature created the Bipartisan State Board of Elections and Ethics Enforcement following the election of Roy A. Cooper III as Governor, the three-judge trial court panel erred by dismissing the Governor's complaint for lack of subject matter jurisdiction. This case involved an issue of constitutional interpretation-whether the statutory provisions governing the manner in which the Bipartisan State Board was constituted and required to operate pursuant to Session Law 2017-6 impermissibly encroached upon the governor's executive authority to see that the laws are faithfully executed-rather than a nonjusticiable political question, and a decision to the contrary would sharply limit the ability of executive branch officials to advance separation of powers claims. Cooper v. Berger, 370 N.C. 392 (2018) (Author: Justice Sam Ervin, IV)

North Carolina—session law creating Bipartisan State Board of Elections and Ethics Enforcement—challenge by Governor—temporary restraining order—moot—Where the legislature created the Bipartisan State Board of Elections and Ethics Enforcement following the election of Roy A. Cooper III as Governor, the Supreme Court dismissed as moot the legislative leadership's appeal from the temporary restraining order entered by the three-judge panel in the trial court following the filing of the Governor's complaint. Cooper v. Berger, 370 N.C. 392 (2018) (Author: Justice Sam Ervin, IV)

North Carolina—supervisory or inherent authority—right to postconviction DNA testing—The Supreme Court declined to use its constitutional supervisory authority or inherent authority to order postconviction DNA testing. There was enough other incriminating evidence to convict and sentence defendant regardless of the results of any hair analysis. State v. Lane, 370 N.C. 508 (2018) (Author: Justice Cheri Beasley)

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)

Piercing the veil—not a theory of liability—Where plaintiffs, who owned a dance studio, allegedly entered into contracts with defendant dancers pursuant to which plaintiffs procured visas for defendant dancers in exchange for the dancers' express promise to work exclusively for plaintiffs, and thereafter defendant dancers began working for defendant dance studio, the Supreme Court rejected plaintiffs' argument that defendant dance studio owners (the Manlys) could be held liable in their individual capacities for the tort claims brought against defendant dance studio (Metropolitan Ballroom). Because plaintiffs failed to state a valid, underlying claim against defendants, it was immaterial whether Metropolitan Ballroom or the Manlys, in their individual capacities, would be liable for those claims. Krawiec v. Manly, 370 N.C. 602 (2018) (Author: Justice Barbara Jackson)

Medical malpractice—expert witnesses—The trial court did not abuse its discretion in an award of costs in a medical malpractice action against a doctor and hospitals where the doctor contended that it was improper to assess fees for the testimony of experts whose testimony concerned the only the hospitals. The experts did address issues relating to the doctor in addition to the hospitals. There was no issue concerning N.C.G.S. § 7A-305(d)(11), which authorizes certain costs. Justus v. Rosner, 371 N.C. 818 (2018) (Author: Justice Robin Hudson)

Appropriate relief—adequate representation—motion denied—The trial court's decision to deny defendant's motion for appropriate relief was supported by the evidence where the claim for ineffective assistance of counsel rested on an alleged conversation between a witness and defendant's trial counsel concerning a probation violation proceeding prior to this trial, which raised the possibility of a conflict of interest. The trial court found that the alleged conversation never happened. State v. Hyman, 371 N.C. 363 (2018) (Author: Justice Sam Ervin, IV)

Appropriate relief—inability to raise in prior proceedings—The defendant in a first-degree murder prosecution was not in a position to adequately raise his ineffective assistance of counsel claim in prior direct appeals, and his motion for appropriate relief was not subject to the procedural bar created by N.C.G.S. § 15A-1419(a)(3). State v. Hyman, 371 N.C. 363 (2018) (Author: Justice Sam Ervin, IV)

Continuance—development of inadmissible evidence—The trial court properly denied a motion for a continuance where the motion was for the purpose of further developing evidence that would have been inadmissible at trial. State v. Bass, 371 N.C. 535 (2018) (Author: Justice Cheri Beasley)

Instructions—aiding and abetting—individual guilt—To the extent that the Court of Appeals applied the correct standard for plain error review to a prosecution arising from the discovery of materials used for manufacturing methamphetamine in and around defendant's house, it incorrectly concluded that an erroneous aiding and abetting instruction did not amount to plain error. Given the evidence of defendant's individual guilt (including viewing the items found in context and not in isolation), the erroneous aiding and abetting instruction did not have a probable impact on the jury's finding. State v. Maddux, 371 N.C. 558 (2018) (Author: Justice Robin Hudson)

Instructions—self-defense—stand your ground—The trial court erred by omitting the relevant stand-your-ground language from the jury instructions delivered at a trial in which defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury. The trial court concluded that the "no duty to retreat" instruction did not apply because defendant was not in his home or place of residence, workplace, or car. An individual who is lawfully located may stand his ground and defend himself from attack when he reasonably believes such force is necessary to prevent imminent death or great bodily harm to himself or another. A defendant entitled to any self-defense instruction is entitled to a complete self-defense instruction, which includes the stand-your-ground provision. State v. Bass, 371 N.C. 535 (2018) (Author: Justice Cheri Beasley)

Intellectual disability defense—motion to set aside verdict—The trial court did not abuse its discretion by failing to set aside the jury's verdict on intellectual disability in a prosecution for kidnapping, rape and murder. Although defendant presented evidence to support a determination that he e deemed exempt from the death penalty on the grounds of intellectual disability, the State presented expert testimony that supported the verdict. The relative credibility of the testimony of the various expert witnesses was a matter for the jury. State v. Rodriguez, 371 N.C. 295 (2018) (Author: Justice Sam Ervin, IV)

Jury instruction—self-defense—omission of stand-your-ground provision—The trial court erred in a first-degree murder case by giving its self-defense jury instruction that omitted the relevant stand-your-ground provision. Defendant showed a reasonable possibility that, had the trial court given the required stand-your-ground instruction, a different result would have been reached at trial. Defendant was entitled to a new trial with proper self-defense and stand-your-ground instructions. State v. Lee, 370 N.C. 671 (2018) (Author: Chief Justice Paul Newby)

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)

Location of victim's body—disclosure by defense—The trial judge did not abuse his discretion when he denied defendant's motions for mistrial in a prosecution for kidnapping, rape, and murder and where the prosecutor made two comments in his closing arguments about the victim's location being revealed by the defense. The statement that the body was found where 'defendant's lawyer said he put the body' was improper because the statement was couched as a statement of fact, which was not accurate, rather than as an inference. The statement that defendant's 'attorney telling law enforcement where to look for the body puts him there' was not improper and was a permissible inference. However, the improper statement was not such a serious impropriety as to make it impossible to attain a fair and impartial verdict, the judge gave curative instructions, and the evidence against defendant was overwhelming. State v. McNeill, 371 N.C. 198 (2018) (Author: Justice Robin Hudson)

Plea agreement—sentencing worksheet—stipulation to classification of prior second-degree murder—Where defendant, as part of a plea agreement, stipulated to a sentencing worksheet showing his prior offenses, including a second-degree murder conviction designated as a B1 offense, the Court of Appeals erred by holding that the stipulation to this type of second-degree murder was an improper legal stipulation. Defendant could properly stipulate to the facts surrounding his offense either by recounting the facts at the hearing or by stipulating to a general second-degree murder conviction that has a B1 classification. Defendant's stipulation was an acknowledgement that that the factual basis of his conviction involved general second-degree murder-a B1 offense-not covered by the B2 exceptions. State v. Arrington, 371 N.C. 518 (2018) (Author: Chief Justice Paul Newby)

Racial Justice Act—failure to raise issues—A defendant in a kidnapping, rape, and murder prosecution could not complain of the trial court's failure to strictly adhere to the Racial Justice Act's pretrial statutory procedures where he himself failed to follow those procedures. There was no prejudice to defendant's ability to raise a claim in a motion for appropriate relief. State v. McNeill, 371 N.C. 198 (2018) (Author: Justice Robin Hudson)

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)

Keeping or maintaining a car used for the keeping or selling of a controlled substance—keeping a car—possession for a short period, or intent to retain possession, for a certain use—Where defendant was convicted of keeping or maintaining a car which is used for the keeping or selling of a controlled substance in violation of N.C.G.S. § 90-108(a)(7) and where he argued on appeal that the trial court erred by denying his motion to dismiss, the Supreme Court held that, when viewed in the light most favorable to the State, it could reasonably be inferred from the evidence at trial that defendant had "kept" the Cadillac he was driving. The word "keep" in the relevant portion of subsection 90-108(a)(7) refers to possessing something for at least a short period of time-or intending to retain possession of something in the future-for a certain use. During the hour and a half of surveillance, officers saw defendant arrive at a hotel in a Cadillac, stay in a hotel room for a while, and then leave in the Cadillac. He was the only person they saw using the Cadillac, and there was a service receipt in the Cadillac bearing defendant's name and dated two and a half months before defendant's arrest. A reasonable jury thus could conclude that defendant had possessed the Cadillac for about two and a half months, at the very least. State v. Rogers, 371 N.C. 397 (2018) (Author: Chief Justice Mark Martin)

Keeping or maintaining a car used for the keeping or selling of a controlled substance—keeping a controlled substance—storing rather than merely transporting—Where defendant was convicted of keeping or maintaining a car which is used for the keeping or selling of a controlled substance in violation of N.C.G.S. § 90-108(a)(7) and where he argued on appeal that the trial court erred by denying his motion to dismiss, the Supreme Court held that, when viewed in the light most favorable to the State, it could reasonably be inferred from the evidence at trial that defendant was using the Cadillac he was driving to "keep" crack cocaine. The word "keeping" in the relevant portion of subsection 90-108(a)(7) refers to the storing of illegal drugs. The cocaine was hidden in the gas compartment of the car, and the circumstances were such that a reasonable jury could conclude that defendant was storing rather than merely transporting the drugs in the car. State v. Rogers, 371 N.C. 397 (2018) (Author: Chief Justice Mark Martin)

Marijuana—constructive possession—plants growing on property—The trial court properly denied defendants' motions to dismiss for insufficient evidence charges of constructive possession of marijuana plants found growing on their property where a jury could reasonably infer from the evidence that defendants knowingly possessed the marijuana plants. State v. Chekanow, 370 N.C. 488 (2018) (Author: Justice Cheri Beasley)

Condemnation—instructions—fair market value—The North Carolina Supreme Court declined to disturb Carolina Power & Light Co. v. Creasman, 262 N.C. 390, in a condemnation case, remanded on other grounds, which included an issue involving a fair market value instruction that was likely to recur. N.C. Dep't of Transp. v. Mission Battleground Park, DST, 370 N.C. 477 (2018) (Author: Chief Justice Mark Martin)

Inverse condemnation—private purpose—Plaintiff homeowners were entitled to assert a statutory inverse condemnation claim pursuant to N.C.G.S. § 40A-51 based upon the extended flooding of their property as the result of actions taken by defendant City to adjust a lake's shore line for an allegedly private purpose. The statute did not make the availability of the remedy dependent upon whether the purpose that led to the taking was public or private. Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540 (2018) (Author: Justice Sam Ervin, IV)

Acceptance of benefits—impact fees—In a case involving impact fees, the Town's contention that plaintiffs' claims were barred by the doctrine of estoppel by the acceptance of benefits was rejected where it did not appear that plaintiff received any benefit from the payment of the challenged water and sewer impact fees that they would not have otherwise been entitled to receive. Quality Built Homes Inc. v. Town of Carthage, 371 N.C. 60 (2018) (Author: Justice Sam Ervin, IV)

Attorney client privilege—revelation of location of victim—Information about the location of the victim in a prosecution for the kidnapping, rape, and murder of a five year old child was not protected by the attorney-client privilege because defendant communicated the information to his attorneys with the purpose that it be relayed to law enforcement. It was noted that the attorney-client privilege and the ethical duty of confidentiality are not synonymous, although the two principles are related. State v. McNeill, 371 N.C. 198 (2018) (Author: Justice Robin Hudson)

Exclusion of real estate broker's testimony—prejudicial—There was prejudice from the exclusion of a real estate broker's testimony in a case involving the condemnation of land for highway construction where there was a reasonable probability that the trial court would have admitted the broker's fair market value testimony under Rule 702 if the trial court had not excluded that testimony based on subsection 93A-83(f). Moreover, if the broker's testimony about fair market value had been admitted under Rule 702, there was a reasonable probability that his testimony would have affected the jury's verdict. N.C. Dep't of Transp. v. Mission Battleground Park, DST, 370 N.C. 477 (2018) (Author: Chief Justice Mark Martin)

Expert witness—prior testimony for defense in another case—In a prosecution for kidnapping, rape, and murder in which the defense of intellectual disability was raised, the trial court did not err by allowing the State to elicit evidence that it's expert had previously testified for a criminal defense client in another case. The testimony was relevant to the witness's lack of bias and it could not be said that the testimony constituted impermissible prosecutorial vouching for the witness's credibility. State v. Rodriguez, 371 N.C. 295 (2018) (Author: Justice Sam Ervin, IV)

Hair sample—DNA testing—relevancy—sentencing—The trial court did not err in a first-degree murder case by concluding the hair sample DNA testing was not material to defendant's defense. There was no reasonable probability that the DNA testing of the hair samples would have changed the jury's recommendation of death. State v. Lane, 370 N.C. 508 (2018) (Author: Justice Cheri Beasley)

Hearsay—admission—location of victim—officer's testimony—information received from attorneys—Testimony from a an officer that he received information about the location of the victim from defendant's attorneys was not inadmissible hearsay where defendant authorized his attorneys to convey the information to law enforcement. Moreover, the officer was not permitted to testify about any feelings as to the source of the information. State v. McNeill, 371 N.C. 198 (2018) (Author: Justice Robin Hudson)

Rape Shield Law—STDs in complainant absent in defendant—In defendant's trial for sexual offenses committed against his daughter, the trial court erred by excluding evidence of the complainant's history of sexually transmitted diseases (STDs) pursuant to Rule of Evidence 412. The excluded evidence-which included expert testimony regarding the presence of STDs in the complainant and the absence of those STDs in defendant and the inference that defendant did not commit the charged crimes-fell within the exception to the Rape Shield Law set forth in Rule of Evidence 412(b)(2), as "evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant." There was a reasonable probability that, had this error not been committed, a different result would have been reached at trial. State v. Jacobs, 370 N.C. 661 (2018) (Author: Justice Barbara Jackson)

Sorenson evidence—materiality analysis—hair sample testing—The trial court did not err in a first-degree murder case by considering the Sorenson evidence in its materiality analysis of defendant's hair sample testing request when there were contested factual issues regarding the validity of the Sorenson evidence. The evidence created an insurmountable hurdle to the success of defendant's materiality argument. State v. Lane, 370 N.C. 508 (2018) (Author: Justice Cheri Beasley)

Victim's character—violent conduct—specific instances—The trial court did not err in an assault prosecution by excluding specific instances of the victim's violent conduct offered to prove that he was the first aggressor on the night he was shot. Character is not an essential element of self-defense; to show that he acted in self-defense, a defendant must show that his victim was the aggressor but need not prove that the victim was a violent or aggressive person. N.C. Rule of Evidence 405 limits the use of specific instances of past misconduct to cases in which character is an essential element of the charge, claim, or defense. State v. Bass, 371 N.C. 535 (2018) (Author: Justice Cheri Beasley)

Motion to dismiss—sufficiency of indictment—amount of money obtained not required—The trial court properly denied defendant's motion to dismiss the charges of obtaining property by false pretenses. The indictment was facially valid and fulfilled the purpose of the Criminal Procedure Act of 1975. The indictment did not need to include the amount of money obtained because it adequately advised defendant of the conduct that was the subject of the accusation. Further, the State presented sufficient evidence at trial regarding defendant's false representation of ownership. State v. Mostafavi, 370 N.C. 681 (2018) (Author: Chief Justice Paul Newby)

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)

Cabinet—senatorial confirmation—separation of powers—The Supreme Court held that senatorial confirmation of members of the Governor's Cabinet did not violate the separation of powers clause because the Governor retained the power to nominate them, had strong supervisory authority over them, and had the power to remove them at will. The appointments provision of N.C.G.S. § 143B-9(a) did not unconstitutionally impede the Governor's ability to take care that the laws be faithfully executed, and the constitution did not otherwise prohibit the General Assembly from requiring senatorial confirmation of members of the Governor's Cabinet. Cooper v. Berger, 371 N.C. 799 (2018) (Author: Chief Justice Mark Martin)

—first-degree murder—identity—sufficiency of evidence—The trial court did not err by denying defendant's motion to dismiss a first-degree murder charge for insufficient evidence of defendant's identity. The evidence contained ample support for the State's contention that defendant caused the victim's death and permitted the inference that defendant acted with premeditation and deliberation. State v. Rodriguez, 371 N.C. 295 (2018) (Author: Justice Sam Ervin, IV)

Governmental—downtown redevelopment—art center—governmental function—The trial court correctly determined that defendant city was engaged in a governmental function and granted summary judgment for defendant on the basis of governmental immunity in a negligence case arising from a slip and fall at an art center used as a part of a downtown redevelopment. While the legislature has not deemed that all urban redevelopment and downtown revitalization projects are governmental functions that are immune from suit, defendant's activity here in leasing the property to an arts guild to promote the arts for the purpose of redeveloping and revitalizing the downtown area was a governmental function. Meinck v. City of Gastonia, 371 N.C. 497 (2018) (Author: Justice Robin Hudson)

Governmental—downtown redevelopment—art center—negligence claim—The trial court correctly granted summary judgment for defendant city on the basis of governmental immunity in a negligence case arising from a slip and fall at an art center used as a part of a downtown redevelopment. An urban redevelopment project undertaken in accordance with statutes and for the purpose of promoting the health, safety, and welfare of the inhabitants of the State of North Carolina is a governmental function. Meinck v. City of Gastonia, 371 N.C. 497 (2018) (Author: Justice Robin Hudson)

Citation for misdemeanor—sufficient to invoke trial court's subject matter jurisdiction—Defendant's citation for operating a motor vehicle when having an open container of alcohol in the passenger compartment while alcohol remained in his system was sufficient to charge him with the misdemeanor offense and to invoke the trial court's subject matter jurisdiction. The citation included sufficient criminal pleading contents (which are designed to be more relaxed than those of other criminal charging instruments), and defendant chose not to invoke his right through an appropriate motion to have the State charge him in a new pleading while the matter was still pending in its court of original jurisdiction. State v. Jones, 371 N.C. 548 (2018) (Author: Justice Michael Morgan)

Felony littering—unauthorized persons and locations—The indictment charging defendant with felony littering was facially invalid because it failed to allege an essential element of the statutory crime-that defendant was an unauthorized person who deposited refuse on property not designated for such activity. Facts satisfying N.C.G.S § 14-399(a)(1) needed to be alleged because the statement of the offense of littering was not complete unless it excluded authorized locations and persons from its definition. State v. Rankin, 371 N.C. 885 (2018) (Author: Justice Cheri Beasley)

Habitual felon—conviction of lesser-included offense—Where the habitual felon indictment returned against defendant alleged that defendant had committed the offenses of robbery with a dangerous weapon and had been convicted of common law robbery, the Supreme Court held that the habitual felon indictment was not fatally defective. The indictment contained all of the information required by N.C.G.S. § 14-7.3 and gave defendant adequate notice of the charge against him. Further, common law robbery is a lesser-included offense of robbery with a dangerous weapon, and an indictment for an offense includes all the lesser degrees of the same crime. State v. Langley, 371 N.C. 389 (2018) (Author: Justice Sam Ervin, IV)

Discipline—unreasonably delayed ruling—A district court judge was suspended without pay for thirty days where he delayed issuing a ruling in a domestic matter for years, never made a ruling, and the file on the case went missing. In re Chapman, 371 N.C. 486 (2018) (Author: Justice Per Curiam)

Failure to issue ruling or respond in a timely manner—public reprimand—Where a district court judge failed to issue a ruling for more than two years on a motion for attorney's fees and expenses, failed to respond or delayed responding to party and attorney inquiries on the status of the pending ruling, and failed to respond in a timely manner to communications from the Judicial Standards Commission's investigator regarding the status of the ruling, the Supreme Court ordered that the judge be publicly reprimanded for violations of Canons 1, 2A, 3A, and 3B of the N.C. Code of Judicial Conduct. In re Henderson, 371 N.C. 45 (2018) (Author: Justice Per Curiam)

—selection—death penalty—intellectually disabled person—In a capital prosecution for first-degree murder, the limitations that the trial court placed upon the ability of defendant's trial counsel to question prospective jurors concerning intellectual disability issues constituted an abuse of discretion or render the trial fundamentally unfair. Defendant was allowed explain that intellectual disability is a defense to the death penalty ask prospective jurors about their experience with intellectual disabilities and their ability to follow the trial court's instruction. State v. Rodriguez, 371 N.C. 295 (2018) (Author: Justice Sam Ervin, IV)

Custodial interrogation—waiver of juvenile rights—The trial court did not err by concluding that juvenile defendant knowingly, willingly, and understandingly waived his juvenile rights pursuant to N.C.G.S. § 7B-2101 before making certain incriminating statements. Evidence in the record tended to show that the detective advised defendant of his juvenile rights in spoken English, written Spanish, and written English; defendant initialed each of the rights on the juvenile rights waiver form and signed it; defendant answered affirmatively that he understood his rights; and defendant understood what the detective was saying. While the record did contain evidence that would have supported a different conclusion, the evidence supported the trial court's conclusion that defendant waived his juvenile rights. State v. Saldierna, 371 N.C. 407 (2018) (Author: Justice Sam Ervin, IV)

Restraint—actions after sexual assault—The trial court did not err by denying defendant's motion to dismiss a second-degree kidnapping charge, because there was sufficient evidence of restraint that was separate and apart from that inherent in the commission of the first-degree sex offense to support the kidnapping conviction. Taken in the light most favorable to the State, the evidence showed that defendant positioned himself on top of the victim on a bed, punched him until he was stunned, and penetrated him. The victim then swung and kicked at the defendant, defendant jumped off the victim, grabbed him by the ankles, yanked him off the bed, and kicked and stomped the victim with an accomplice without a further attempt at sexual assault. Defendant's actions after the victim swung at him constituted an additional restraint. State v. China, 370 N.C. 627 (2018) (Author: Justice Robin Hudson)

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)

Pleadings—Rule 9(j)—amendment—relation back—A plaintiff in a medical malpractice action may file an amended complaint under Rule 15(a) of the N.C. Rules of Civil Procedure to cure a defect in a Rule 9(j) certification when the expert review and certification occurred before the filing of the original complaint. Further, such an amended complaint may relate back under Rule 15(c). In this case, plaintiff's amended complaint corrected a technical pleading error and made clear that the expert review required by Rule 9(j) occurred before the filing of the original complaint. The trial court's denial of plaintiff's motion to amend as being futile was based on a misapprehension of the law. Vaughan v. Mashburn, 371 N.C. 428 (2018) (Author: Justice Robin Hudson)

Driving while impaired—license revocation—standard of review—Where the N.C. Department of Motor Vehicles (DMV) revoked defendant's driving privileges for his refusal to submit to a chemical analysis, and the superior court reversed the DMV hearing officer's decision, the Court of Appeals erred on review by making witness credibility determinations and resolving contradictions in the evidence when it determined that the DMV hearing officer's conclusion was "not supported by the record evidence or the findings." Based on the unchallenged findings of fact, petitioner's repeated failure to follow the chemical analyst's instructions on how to provide a sufficient breath sample, after being warned that a refusal to comply would be recorded if such failure continued, constituted willful refusal to submit to a chemical analysis. Brackett v. Thomas, 371 N.C. 121 (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)

Contributory negligence—dram shop claim—The Court of Appeals erred by determining that plaintiff had stated a valid negligence per se dram shop claim pursuant to N.C.G.S. § 18B-305(a). The factual allegations of plaintiff's complaint established decedent's contributory negligence, and thus, the issue of the first-party dram shop claim was not considered. Davis v. Hulsing Enters., 370 N.C. 455 (2018) (Author: Justice Barbara Jackson)

Standing—homeowners associations—compliance with bylaws—Where the plaintiff homeowners associations (HOAs) filed a lawsuit challenging the validity of a zoning ordinance that permitted multifamily housing on parcels of land abutting property owned by plaintiffs, plaintiff HOAs' failure to comply with various provisions in their corporate bylaws when their respective boards of directors initiated litigation did not prevent them from having standing to bring the lawsuit. Willowmere Cmty. Ass'n v. City of Charlotte, 370 N.C. 553 (2018) (Author: Justice Cheri Beasley)

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)

Termination—police officer—right to request jury trial—The Court of Appeals erred in a police officer termination case by concluding that only petitioner City of Asheville had the right to request a jury trial. A respondent, just as much as a petitioner, may demand a jury trial in a superior court appeal of an Asheville Civil Service Board decision. The case was reversed and remanded to the Court of Appeals for further remand to the superior court. City of Asheville v. Frost, 370 N.C. 590 (2018) (Author: Chief Justice Mark Martin)

County's method of sales tax distribution—Leandro challenge—State responsibility—The trial court did not err by granting a N.C. Civil Procedure Rule 12(b)(6) dismissal of a claim brought under Leandro v. State, 346 N.C. 336 (1997), where an action challenged a county's choice of method of distribution for local sales tax revenue to a tripartite school system. The claim was untenable because it assumed that a county board of commissioners had a constitutional duty to provide a sound basic education; county boards of commissioners had no such duty. The remedy for these harms rested with the State. Silver v. Halifax Cty. Bd. of Comm'rs, 371 N.C. 855 (2018) (Author: Justice Barbara Jackson)

State Board of Education and Superintendent of Public Instruction—powers and duties—Legislation that amended numerous provisions of N.C.G.S. Chapter 115C-eliminating certain aspects of the N.C. State Board of Education's oversight of a number of the Superintendent of Public Instruction's powers and duties, and assigning several powers and duties that had formerly belonged to the Board or the Governor to the Superintendent-did not, on its face, violate Article IX, Section 5 of the N.C. Constitution. The Board's continued ability to exercise its constitutional authority to generally supervise and administer the public school system was preserved by both the explicit statutory language affording the Board continued responsibility for the supervision and administration of the public school system and the explicit ability to adopt appropriate rules and regulations governing the duties assigned to the Superintendent. The Court further determined that the "needed rules and regulations" to which the legislation referred were not subject to the rulemaking requirements of the Administrative Procedure Act. N.C. State Bd. of Educ. v. State, 371 N.C. 170 (2018) (Author: Justice Sam Ervin, IV)

State Board of Education rules—review by Rules Review Commission—delegation of authority—The General Assembly properly delegated authority to the Rules Review Commission to review the State Board of Education's proposed rules. The statutes at issue included sufficient restrictions on the Commission and safeguards to ensure the Board's continued ability to fulfill its mandates as set forth in the state constitution. Further, the Commission was tasked only with the responsibility to review the Board's rules from a procedural perspective for clarity and to ensure that the rules were adopted in compliance with the Administrative Procedure Act. N.C. State Bd. of Educ. v. State, 371 N.C. 149 (2018) (Author: Justice Michael Morgan)

State Board of Education rules—review by Rules Review Commission—plain language of N.C. Constitution—The plain language of Article IX, Section 5 of the N.C. Constitution authorized the General Assembly to require the State Board of Education to submit its proposed rules to the Rules Review Commission for review because this procedure was statutorily enacted and the Board's prescribed constitutional duties are subject to laws enacted by the General Assembly. N.C. State Bd. of Educ. v. State, 371 N.C. 149 (2018) (Author: Justice Michael Morgan)

Appeal of admissibility of evidence—no motion to suppress before or at trial—complete waiver of review on direct appeal—In a case of first impression, where defendant did not move to suppress-before or at trial-evidence of cocaine found in his pocket during a traffic stop, but instead argued for the first time on appeal that the seizure of the cocaine resulted from Fourth Amendment violations, the Supreme Court held that the Court of Appeals erred by conducting plain error review and concluding that the trial court committed plain error by admitting evidence of the cocaine. Defendant's Fourth Amendment claims were not reviewable on direct appeal, even for plain error, because he completely waived them by not moving to suppress the evidence of the cocaine before or at trial. State v. Miller, 371 N.C. 266 (2018) (Author: Chief Justice Mark Martin)

Objective, reasonable interpretation—robbery by back seat passenger—A police officer had reasonable suspicion of criminal activity to briefly detain defendant for questioning where: (1) it was 4:00 a.m.; (2) the vehicle was stopped in the road with no turn signal on; (3) there were only two people sitting in the car, one in the driver's seat and the other directly behind him in the back seat; (4) defendant (sitting behind the driver) appeared to be pulling some sort of toboggan or ski mask down over his face until he saw the officer and pushed it back up; (5) when the officer asked whether the occupants were okay, each said yes, but the driver made a hand motion at his neck area; (6) after the officer drove into the store parking lot and waited for an additional thirty seconds, the vehicle still did not move or display a turn signal; (7) after defendant got out of the car, the driver was edging forward and about to leave defendant, who he had just said was his brother, on the side of the road on a cold, wet night; (8) when the officer again asked whether everything was okay, the driver shook his head "no" while defendant said everything was fine; and (9) after the officer confronted defendant with the fact that the driver had shaken his head "no," the driver quickly stated that everything was okay. The Court of Appeals erroneously placed undue weight on the officer's subjective interpretation of the facts rather than focusing on how an objective, reasonable officer would view them. State v. Nicholson, 371 N.C. 284 (2018) (Author: Justice Robin Hudson)

SWAT perimeter—defendant walking through—heavy object in pocket—The search and seizure of defendant did not violate the Fourth Amendment where a SWAT team was conducting a sweep of a house in a dangerous area; defendant walked through the perimeter of SWAT officers stationed around the house, stating that he was going to get his moped; and defendant had a heavy object in his pocket that appeared to an officer to be a firearm. The rule in Michigan v. Summers, 452 U.S. 692 (1981), justified the seizure because defendant, who was within the immediate vicinity of the premises to be searched and present during the execution of a search warrant, qualified as an occupant under Summers because he posed a real threat to the safe and efficient completion of the search. Further, the search and seizure were supported by individualized suspicion under Terry v. Ohio, 392 U.S. 1 (1968). State v. Wilson, 371 N.C. 920 (2018) (Author: Chief Justice Mark Martin)

—prosecutor's closing arguments—defenant's decision not to present mitigating evidence or arguments—The prosecutor's remarks in a capital sentencing were not so grossly improper that the trial court should have intervened ex mero motu where he commented on defendant's decision not to present mitigating evidence or closing arguments. The thrust of the argument was an admonition to the jury to make its decision based on the facts and the law presented in the case. State v. McNeill, 371 N.C. 198 (2018) (Author: Justice Robin Hudson)

Capital—proportionality—aggravating circumstances supported by record—sentence not result of passion, prejudice or arbitrary factors—not disproportionate to similar cases capital—proportionality—aggravating circumstances supported by record—sentence not result of passion, prejudice or aribtrary factors—not disproportionate to similar cases —A sentence of death was not disproportionate where defendant kidnapped a five-year-old child from her home and sexually assaulted her before strangling her and discarding her body under a log in a remote area used for field dressing deer carcasses. State v. McNeill, 371 N.C. 198 (2018) (Author: Justice Robin Hudson)

First degree murder—juvenile—no Eight Amendment violation—There was no merit to a juvenile first degree murder defendant's argument that the Eight Amendment was violated by a North Carolina sentencing scheme for that did not begin with a presumption in favor of life with parole, and that did not require that a jury find the existence of one or more aggravating circumstances or a finding that the juvenile was irreparably corrupt. The statutory provisions provide sufficient guidance to allow a sentencing judge to make a proper, non-arbitrary determination of sentence. State v. James, 371 N.C. 77 (2018) (Author: Justice Sam Ervin, IV)

Juvenile—first-degree murder—The relevant language in N.C.G.S. §§ 15A-1340.19A to 15A-19D, read contextually and in its entirety, did not create a presumption that juveniles convicted of first-degree murder on a theory other and felony murder should be sentenced to life imprisonment without parole rather than life with parole. The two choices are treated as alternative sentencing options, with the selection to be made on the basis of an analysis of all the relevant facts and circumstances in light of Miller v. Alabama, 567 U.S. 460 (2012). State v. James, 371 N.C. 77 (2018) (Author: Justice Sam Ervin, IV)

Misdemeanor possession of marijuana—elevation to felony—Under the reasoning of State v. Jones, 358 N.C. 473 (2004), and in light of the plain language of N.C.G.S. § 90-95(e)(3), possession of more than one-half but less than one and one-half ounces of marijuana in violation of N.C.G.S. § 90-95(d)(4) by a defendant with a prior conviction for an offense punishable under the Act is classified as a Class I felony for all purposes. The General Assembly intended for subdivision (e)(3) to establish a separate felony offense rather than merely to serve as a sentence enhancement of the underlying misdemeanor. State v. Howell, 370 N.C. 647 (2018) (Author: Justice Michael Morgan)

Mitigating circumstance—mental or emotional disturbance-intellectual disability—The trial court erred in a capital sentencing proceeding by not submitting the mitigating circumstance of impaired capacity to appreciate the criminality of his conduct. The trial court has no discretion in determining whether to submit a mitigating circumstance when substantial evidence is submitting support the circumstance and the issue does not hinge on whether the defendant was under the influence of a mental or emotional disturbance at the time of the killing.In this case, the record contained ample evidence supporting the admission of the circumstance. State v. Rodriguez, 371 N.C. 295 (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)

Anal penetration—evidence sufficient to submit to jury—The evidence, taken in the light most favorable to the State, was sufficient to submit to the jury the issue of defendant's guilt of sexual offense, as well as the aggravating circumstance related to a sexual offense, based upon a theory of anal penetration. State v. McNeill, 371 N.C. 198 (2018) (Author: Justice Robin Hudson)

Impact fees—three year statute of limitations—Plaintiffs' claims against a town arising from impact fees accrued when the fees where paid, not when the ordinance was passed, and the three-year statute of limitations in N.C.G.S. 1-52(2) was applicable. Their last payment was more than three years after their last payment and their claim was barred. Quality Built Homes Inc. v. Town of Carthage, 371 N.C. 60 (2018) (Author: Justice Sam Ervin, IV)

Medical malpractice—minor—guardian ad litem appointed—The trial court correctly dismissed plaintiff's medical malpractice claims as time barred where the trial court had appointed a guardian ad litem (GAL) on behalf of a minor and specifically tasked him with bringing an action on behalf of the minor. A minor plaintiff who continues under that status until age eighteen has one year to file the claim, but the appointment of a GAL in this case removed plaintiff's disability of minority so that the three-year statute of limitations for medical malpractice actions began running. King v. Albemarle Hosp. Auth., 370 N.C. 467 (2018) (Author: Chief Justice Paul Newby)

Misdemeanor—citation for DWI—tolling—A citation issued to defendant for driving while impaired tolled the statute of limitations for misdemeanors. The citation was a constitutionally and statutorily proper criminal pleading that conveyed jurisdiction to the district court to try defendant. The General Assembly did not intend the illogical result that an otherwise valid criminal pleading that vests jurisdiction in the trial court would not also toll the statute of limitations. State v. Curtis, 371 N.C. 355 (2018) (Author: Justice Barbara Jackson)

Out-of-state trust—beneficiary residing in N.C.—minimum contacts—Where the N.C. Department of Revenue taxed the income of The Kimberly Rice Kaestner 1992 Family Trust-which was created in New York and governed by the laws of New York-pursuant to N.C.G.S. § 105-160.2 solely based on the North Carolina residence of the beneficiaries during tax years 2005 through 2008, the Trust did not have sufficient minimum contacts with the State of North Carolina to satisfy the due process requirements of the Fourteenth Amendment to the U.S. Constitution and Article I, Section 19 of the N.C. Constitution. Therefore, N.C.G.S. § 105-160.2 was unconstitutional as applied to collect the disputed income taxes from the Trust. Kaestner 1992 Family Tr. v. N.C. Dep't of Revenue, 371 N.C. 133 (2018) (Author: Justice Barbara Jackson)

Civil conspiracy—dismissed—Where plaintiffs, who owned a dance studio, allegedly entered into contracts with defendant dancers pursuant to which plaintiffs procured visas for defendant dancers in exchange for the dancers' express promise to work exclusively for plaintiffs, and thereafter defendant dancers began working for defendant dance studio, the N.C. Business Court did not err by dismissing plaintiffs' claims against defendants for civil conspiracy. Plaintiffs' amended complaint lacked sufficient detail to state a claim for civil conspiracy based on defendants' unlawful behavior, and the other acts alleged were held by the N.C. Supreme Court to be pled insufficiently. Krawiec v. Manly, 370 N.C. 602 (2018) (Author: Justice Barbara Jackson)

Tortious interference with contract—knowledge of contract—Where plaintiffs, who owned a dance studio, allegedly entered into contracts with defendant dancers pursuant to which plaintiffs procured visas for defendant dancers in exchange for the dancers' express promise to work exclusively for plaintiffs, and thereafter defendant dancers began working for defendant dance studio, the N.C. Business Court did not err by dismissing plaintiffs' claim against defendant dance studio for tortious interference with contract. None of the factual allegations in plaintiffs' amended complaint demonstrated how the defendant dance studio could have known of the alleged exclusive employment agreement. Krawiec v. Manly, 370 N.C. 602 (2018) (Author: Justice Barbara Jackson)

Misappropriation of—sufficient particularity in pleadings—Where plaintiffs, who owned a dance studio, allegedly entered into contracts with defendant dancers pursuant to which plaintiffs procured visas for defendant dancers in exchange for the dancers' express promise to work exclusively for plaintiffs, and thereafter defendant dancers began working for defendant dance studio, the N.C. Business Court did not err by dismissing plaintiffs' claim against defendants for misappropriation of trade secrets. Plaintiffs' description in their amended complaint of their trade secrets as their "original ideas and concepts for dance productions, marketing strategies and tactics, as well as student, client and customer lists and their contact information" failed to provide sufficient particularity to enable defendants to delineate what they were accused of misappropriating and a court to determine whether misappropriation had or was threatened to occur. Krawiec v. Manly, 370 N.C. 602 (2018) (Author: Justice Barbara Jackson)

Consolidation of cases—by judge who did not preside over trial—error corrected by presiding judge—Where two cases were consolidated before trial by one superior court judge and then tried by another superior court judge, the Supreme Court held that the first judge erred in consolidating the cases because he was not scheduled to preside over the consolidated trial, but the judge who presided at trial effectively corrected that error, leaving the trial and judgment untainted. The Supreme Court reaffirmed the rule from Oxendine v. Catawba County Department of Social Services, 303 N.C. 699 (1981)-that "the discretionary ruling of one superior court judge to consolidate claims for trial may not be forced upon another superior court judge who is to preside at that trial"-but clarified that the judge who presides at a consolidated trial can effectively correct the procedural error that an earlier judge makes under Oxendine. Boone Ford, Inc. v. IME Scheduler, Inc., 371 N.C. 345 (2018) (Author: Chief Justice Mark Martin)

Medical malpractice—verdict set aside—The Court of Appeals correctly concluded that the trial court did not abuse its discretion by setting aside a verdict in a medical malpractice action based on N.C. Civil Procedure Rule 59(a)(7). The trial judge is in the best position to determine whether a verdict is against the greater weight of the evidence, including whether the jurors were affected by misleading suggestions from expert witnesses. Justus v. Rosner, 371 N.C. 818 (2018) (Author: Justice Robin Hudson)

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)

Underlying claims dismissed—Where plaintiffs, who owned a dance studio, allegedly entered into contracts with defendant dancers pursuant to which plaintiffs procured visas for defendant dancers in exchange for the dancers' express promise to work exclusively for plaintiffs, and thereafter defendant dancers began working for defendant dance studio, the N.C. Business Court did not err by dismissing plaintiffs' claim against defendants for unfair and deceptive practices (UDP). Because plaintiffs failed to state a valid claim for tortious interfere with contact or misappropriation of trade secrets, plaintiffs necessarily also failed to adequately state a claim for UDP. Krawiec v. Manly, 370 N.C. 602 (2018) (Author: Justice Barbara Jackson)

Benefit of work visa—Where plaintiffs, who owned a dance studio, allegedly entered into contracts with defendant dancers pursuant to which plaintiffs procured visas for defendant dancers in exchange for the dancers' express promise to work exclusively for plaintiffs, and thereafter defendant dancers began working for defendant dance studio, the N.C. Business Court did not err by dismissing plaintiffs' claims against defendant dance studio for unjust enrichment. While plaintiffs' amended complaint alleged that defendant dance studio received the benefit of plaintiffs' procurement of their O1-B work visas for defendant dancers, this allegation was contradicted by documents attached to plaintiffs' amended complaint that indicated that the visas authorized defendant dancers to be employed only by plaintiffs. Krawiec v. Manly, 370 N.C. 602 (2018) (Author: Justice Barbara Jackson)

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)

Real estate broker—expert testimony—fair market value—The trial court erred by prohibiting a real estate broker from giving expert testimony about fair market value based on N.C.G.S. § 93A-83(f). The authority of a real estate broker to prepare an expert report and to testify as an expert in court comes from Rule of Evidence 702, not from Article 6 of Chapter 93A, which distinguishes between licensed brokers and licensed appraisers. N.C. Dep't of Transp. v. Mission Battleground Park, DST, 370 N.C. 477 (2018) (Author: Chief Justice Mark Martin)

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)