Administrative law judge—standard for deciding a contested case—water pollutant permit—In a contested case that arose after the Department of Environmental Quality (DEQ) issued a permit to a construction materials supplier allowing it to discharge mining wastewater into tributaries in Blounts Creek, the administrative law judge (ALJ) properly affirmed the permit's issuance and determined that DEQ had adequately ensured the permit's compliance with the "biological integrity standard" for surface waters under the N.C. Administrative Code. Specifically, the ALJ met the standard found in N.C.G.S. § 150B-34(a) for deciding contested cases by properly: making findings of fact (unchallenged on appeal) based upon the preponderance of the evidence; determining that the biological integrity standard fell within DEQ's "specialized knowledge"; giving "due regard" to DEQ's "demonstrated knowledge and expertise" with respect to the relevant facts; determining that DEQ's interpretation of the biological integrity rules was reasonable and consistent with the rules' plain language; and applying DEQ's interpretation of the biological integrity rules to the facts surrounding the permit application. Sound Rivers, Inc. v. N.C. Dep't of Env't Quality , No. 306A20 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Appellate jurisdiction—discretion to issue writ of certiorari—not limited by Rules of Appellate Procedure—The Court of Appeals had jurisdiction to review the trial court's order terminating a mother's parental rights where, although the mother filed a pro se notice of appeal addressed to the Supreme Court rather than to the Court of Appeals, the intermediate appellate court and opposing parties received notice of the appeal and all parties filed briefs in the correct court. The Court of Appeals properly exercised its discretion pursuant to N.C.G.S. § 7A-32(c) in issuing a writ of certiorari in aid of its jurisdiction, which was not limited by the Rules of Appellate Procedure or by any statute. In re R.A.F. , 384 N.C. 505 (2023) (Author: Justice Tamara Barringer)

Appellate jurisdiction—petition for certiorari—order granting motion to suppress—no statutory mechanism for appeal to lower court—In a prosecution for driving while impaired, where the district court preliminarily granted defendant's motion to suppress evidence from his arrest; the State appealed that ruling to the superior court, which upheld the ruling; and then the district court entered a final suppression order per the superior court's instructions, the Supreme Court properly allowed the State's petition for a writ of certiorari to review the State's appeal from the final suppression order. The State's petition met the requirements for certiorari jurisdiction under Appellate Rule 21, where the district court's final order was interlocutory and where no right of appeal from that order existed because the State lacked a statutory basis to challenge it in the superior court. State v. Woolard , No. 208PA22 (N.C. Dec. 15, 2023) (Author: Justice Anita Earls)

Discretionary review improvidently allowed—no precedential value of lower appellate decision—The Supreme Court concluded that discretionary review had been improvidently allowed; therefore, the decision of the Court of Appeals was left undisturbed but without precedential value. Mole' v. City of Durham , 384 N.C. 78 (2023) (Author: Justice Per Curiam)

Scope of appeal—enforcement of development ordinance—violation determined in prior appeal—binding—In the second appeal arising from a town's enforcement of its development ordinance–by filing a lawsuit for a mandatory injunction, abatement order, and collection of civil penalties from developers of a residential subdivision (defendants) who continued to violate a requirement under the ordinance to maintain roads within the subdivision until the town accepted the roads for public maintenance–the Court of Appeals correctly determined that it was bound by a different panel's earlier decision in the same case that defendants were responsible for the roads. Moreover, the question of defendants' ongoing responsibility was not before the current panel because defendants had not raised the issue in their brief. Town of Midland v. Harrell , No. 120A22 (N.C. Oct. 20, 2023) (Author: Justice Trey Allen)

Scope of Supreme Court's review—based on Court of Appeals dissent—issues specifically set out in dissent—Where plaintiffs filed a notice of appeal to the Supreme Court based on a dissent in the Court of Appeals (COA) and did not petition for discretionary review of any additional issues, the Supreme Court considered the merits of only the issue specifically set out and explained by the dissenting COA judge. The dissenting COA judge's single sentence vaguely and impliedly disagreeing with another of the majority's holdings–without providing any reasoning–was not sufficient to confer appellate jurisdiction to the Supreme Court over that issue. Cryan v. Nat'l Council of YMCAs of the U.S. , 384 N.C. 569 (2023) (Author: Justice Richard Dietz)

Summary judgment hearing—failure to exercise discretion to allow testimony—mistake of law—remand—The Court of Appeals properly vacated the trial court's order granting plaintiff's motion for summary judgment (on plaintiff's claims for breach of a commercial lease) where the trial court had acted under a misapprehension of the law and failed to exercise its discretion when it erroneously determined that it was prevented by the Rules of Civil Procedure from receiving oral testimony (that defendant sought to introduce in support of his counterclaim for fraudulent inducement). The matter was remanded for the trial court to exercise its discretion as authorized by Civil Procedure Rule 43(e). D.V. Shah Corp. v. VroomBrands, LLC , No. 351A22 (N.C. Dec. 15, 2023) (Author: Justice Allison Riggs)

Writ of certiorari—two-factor test—merit of issue—extraordinary circumstances—The Court of Appeals acted within its sound discretion when it issued a writ of certiorari to review the trial court's interlocutory order concluding that defendants had asserted a facial challenge to the SAFE Child Act and transferring the issue to a three-judge panel. The Court of Appeals properly applied the two-factor test for determining whether to issue a writ of certiorari, determining first that defendant's argument had merit and second that extraordinary circumstances existed to justify issuance of the writ–specifically, that review would advance the interest of judicial economy, that the appeal raised a recurring issue concerning a relatively new statutory scheme, and that the issue involved the trial court's subject matter jurisdiction. Cryan v. Nat'l Council of YMCAs of the U.S. , 384 N.C. 569 (2023) (Author: Justice Richard Dietz)

Complex business case—motion for fees as part of costs—section 6-21.5—nonjusticiable case—In a complex business case involving a limited partnership–in which several limited partners (plaintiffs) sued the general partner (an ambulatory surgery center) and its owner (together, defendants)–the trial court did not abuse its discretion either by granting defendants' motion for award of attorney fees as part of their costs under Civil Procedure Rule 41(d) pursuant to N.C.G.S. § 6-21.5 or by entering an order that required plaintiffs to pay $599,262.00 in attorney fees as costs. The court's unchallenged findings and conclusions established that defendants were the prevailing party pursuant to section 6-21.5 because plaintiffs lacked standing to bring their claims as direct, individual actions, and therefore had no justiciable case. Woodcock v. Cumberland Cnty. Hosp. Sys., Inc. , 384 N.C. 171 (2023) (Author: Justice Tamara Barringer)

Attorney-client privilege—multiparty attorney-client relationship—joint representation of co-defendants—complex business case—In a complex business case, where defendants (a company and its individual members) were jointly represented by the same law firm–which also represented the company in "general corporate matters" under a standard corporate engagement letter–in a dispute with plaintiffs (the trust of the estate of the company's majority owner), when the relationship between the individual defendants deteriorated and one individual defendant (Hurysh) brought crossclaims against the others, the trial court properly concluded that Hurysh could waive the attorney-client privilege and disclose a recording that he secretly had made of a conference call between defendants and counsel before the falling out among defendants. Competent evidence supported the court's finding that the attorney's advice was given not as corporate counsel but as joint defense counsel for defendants pursuant to an express engagement letter (not the standard corporate engagement letter), which provided that, in the event of a disagreement among the defendants, the attorney-client privilege would not protect the information shared by any defendant with the law firm. Therefore, the trial court's determination that Hurysh held the attorney-client privilege and could waive it was well within the court's sound discretion. Howard v. IOMAXIS, LLC , 384 N.C. 576 (2023) (Author: Justice Richard Dietz)

Adjudication—abuse and neglect—grossly inappropriate discipline—parents unrepentant—The trial court did not err by adjudicating a nine-year-old child as abused under N.C.G.S. § 7B-101(1) where, according to the trial court's findings, which were supported by clear, cogent, and convincing evidence (in a large part from respondents' own admissions), respondents mother and stepfather used "cruel or grossly inappropriate procedures or cruel or grossly inappropriate devices to modify behavior" by whipping the child with a belt severely enough to inflict visible physical injuries, forcing her to stand in a corner for many hours at a time, and making her sleep on the floor without any covers–all for days at a time, possibly for as long as two months. The trial court also did not err by adjudicating the same child as neglected under N.C.G.S. § 7B-101(15) based on the home environment being "injurious to the juvenile's welfare" where respondents saw nothing wrong with their discipline of the child, even after months of working with social services. In re A.J.L.H. , 384 N.C. 45 (2023) (Author: Justice Richard Dietz)

Adjudication—hearsay analysis—remaining evidentiary findings—In its review of the trial court's adjudication and disposition order in a child abuse case, the Court of Appeals erred in holding that some of the trial court's findings relied on inadmissible hearsay statements from the abused child (which were almost entirely duplicative of other evidence) and that the order must be vacated and remanded because the abuse adjudication heavily relied upon the inadmissible hearsay statements. In the first place, the out-of-court statements at issue were admissible for the purpose of explaining why social services began to investigate respondent-parents (rather than for the truth of the matter asserted), and the Court of Appeals should have presumed the trial court's ruling on respondents' objection to be correct where the trial court did not expressly state the reason it was admitting the evidence. Second, when the Court of Appeals concluded that the statements were erroneously admitted, that court should have simply disregarded the statements and examined whether the remaining findings supported the trial court's determination. In re A.J.L.H. , 384 N.C. 45 (2023) (Author: Justice Richard Dietz)

Adjudication—neglect—siblings of abused child—parents' unwillingness to remedy the injurious environment—Where the trial court properly adjudicated respondents' nine-year-old daughter as abused and neglected based on respondents' cruel and grossly inappropriate discipline of her, the trial court did not err by also adjudicating respondents' two younger children (then three years old and six months old) as neglected based on respondents' refusal to acknowledge that the discipline of the nine-year-old was inappropriate and their inability to make a commitment that they would not repeat the discipline, creating a substantial risk that the two younger children would be harmed if they stayed in the home. In re A.J.L.H. , 384 N.C. 45 (2023) (Author: Justice Richard Dietz)

Appellate review—role of appellate court—various procedural postures—In a child abuse case, where the Court of Appeals vacated and remanded the adjudication order with respect to all children involved, that court should not have addressed the disposition phase, and its instruction that the trial court must "order generous and increasing visitation between Margaret and her mother" was improper. On remand from the Supreme Court's decision holding that the trial court's adjudications were not erroneous (reversing the Court of Appeals' decision), the Court of Appeals was reminded to apply the abuse of discretion standard to the disposition order. If the trial court's order meets the high bar for abuse of discretion, the remedy is to vacate the disposition order and remand–without expressing an opinion as to the ultimate result of the best interests determination on remand, which is a decision that belongs to the trial court. In re A.J.L.H. , 384 N.C. 45 (2023) (Author: Justice Richard Dietz)

Neglect—injurious environment—death of sibling from suspected neglect—other siblings in DSS custody—ultimate findings—The trial court properly adjudicated a minor child as neglected based on its ultimate findings that the minor child lived in an environment injurious to her welfare and did not receive proper care or supervision pursuant to N.C.G.S. § 7B-101(15), including that the minor child lived with her mother, who had previously been convicted of misdemeanor child abuse; the minor child's older siblings had previously been adjudicated abused, neglected, and dependent; and the minor child's younger sibling had died from asphyxiation after the mother left him alone for three hours in his crib with blankets, even though the parents had previously been instructed on proper sleeping arrangements for infants. Therefore, the Court of Appeals erred by reversing the trial court's order for failure to make a specific written finding of a substantial risk of impairment. Further, the Supreme Court clarified that the term "ultimate fact" means "a finding supported by other evidentiary facts reached by natural reasoning," and overturned prior caselaw that did not adhere to this definition. In re G.C. , 384 N.C. 62 (2023) (Author: Justice Tamara Barringer)

Permanency planning—ceasing reunification efforts—constitutionally protected status as parents—issue not preserved for appellate review—In an abuse and neglect matter, in which two children were removed from the home due to unexplained life-threatening injuries that the younger child experienced when she was six weeks old, and where the trial court removed reunification with the parents from the permanent plan on grounds that the parents–who were found to be the only ones who could have caused their child's injuries–neither accepted blame for the abuse nor provided plausible explanations for the injuries, the Supreme Court reversed the Court of Appeals' decision holding that the trial court erred by preconditioning reunification on an admission of fault by the parents without first finding that the parents were unfit or had acted inconsistently with their constitutionally protected status as parents. Neither parent had raised the constitutional issue before the trial court, and therefore it had not been preserved for appellate review. In re J.M. , 384 N.C. 584 (2023) (Author: Justice Trey Allen)

Permanency planning—removal of reunification from permanent plan—sufficiency of findings—In an abuse and neglect matter, in which two children were removed from the home due to unexplained life-threatening injuries that the younger child suffered when she was six weeks old, the trial court did not err in the dispositional phase by removing reunification with the parents from the permanent plan where the court had properly determined that further reunification efforts would be clearly unsuccessful and inconsistent with the children's health or safety. Although both parents had made significant progress on their family case plans, competent evidence supported the court's findings of fact–which were binding on appeal, since the parents did not appeal the adjudication order containing them–establishing that: the younger child's injuries resulted from abuse; the parents were the only caregivers who could have abused the child; and neither parent accepted responsibility for the abuse, offered a plausible explanation for the child's injuries, or expressed any reservations about leaving the children alone with the other parent. In re J.M. , 384 N.C. 584 (2023) (Author: Justice Trey Allen)

Custodial interrogation—murder by torture of child victim—defendant's statements at hospital—extent of restraint—In defendant's capital trial for murder by torture of a child victim and related charges, the trial court correctly concluded that defendant was not in custody for purposes of Miranda when he made incriminating statements to law enforcement officers at the hospital where he had brought the victim. Defendant had not been restrained to the extent associated with formal arrest where, although he was grabbed by a nurse as he attempted to leave and pushed into a room and told not to leave prior to the arrival of law enforcement, he was subsequently told by officers that he was not under arrest, the door to the room was left open for part of his questioning, and he was not accused of anything or physically restrained in any manner. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Multiple conspiracies—sufficiency of evidence—separate and distinct agreements—In a criminal prosecution in which defendant was charged with two different conspiracies–to commit robbery with a dangerous weapon and to commit felonious breaking and entering–based on one sequence of events where the victim was threatened at gunpoint in her apartment, the trial court's denial of defendant's motion to dismiss one of the conspiracy charges was proper because the State presented sufficient evidence from which a jury could conclude that defendant formed multiple conspiracies, based on separate agreements with his co-conspirators to, first, rob the victim and, subsequently, to break and enter the victim's apartment. Therefore, the decision of the Court of Appeals vacating defendant's conviction for conspiracy to commit robbery with a dangerous weapon was reversed and the matter remanded with instructions to reinstate defendant's conviction for that offense. State v. Beck , No. 264A21 (N.C. Dec. 15, 2023) (Author: Justice Tamara Barringer)

Facial challenge—restoration of felon voting rights—Free Elections Clause—In a declaratory action challenging the facial constitutionality of N.C.G.S. § 13-1 (regarding felon voting rights, particularly for convicted felons on felony supervision), the trial court erred by concluding that the statute violated the Free Elections Clause (Article I, Section 10) of the state constitution by prohibiting a large number of people from voting. Since Article VI, Section 2(3) of the constitution prohibits felons from voting, the exclusion of felons whose voting rights have not been restored from the electoral process does not implicate the concerns that the Free Elections Clause was enacted to address. Cmty. Success Initiative v. Moore , 384 N.C. 194 (2023) (Author: Justice Trey Allen)

Facial challenge—restoration of felon voting rights—property qualifications—In a declaratory action challenging the facial constitutionality of N.C.G.S. § 13-1 (regarding felon voting rights, particularly for convicted felons on felony supervision), the trial court erred by concluding that the statute violated the Property Qualifications Clause (Article I, Section 11) of the state constitution by conditioning felons' eligibility to vote on their ability to comply with the financial obligations of their sentences such as the payment of court costs, fines, or restitution. Since Article VI, Section 2(3) of the constitution prohibits felons from voting, the requirement of felons fulfilling the financial terms of their sentences before having their voting rights restored by statute does not implicate the Property Qualifications Clause, which affects how people may exercise their right to vote or seek office, nor does the requirement equate to a ban on requiring property ownership before exercising those rights. Cmty. Success Initiative v. Moore , 384 N.C. 194 (2023) (Author: Justice Trey Allen)

Facial challenge—restoration of felon voting rights—wealth-based classification—standard of review—In a declaratory action challenging the facial constitutionality of N.C.G.S. § 13-1 (regarding felon voting rights, in particular for convicted felons on felony supervision), the trial court erred by applying strict scrutiny to the question of whether the statute created an impermissible wealth classification in violation of the Equal Protection Clause (Article I, Section 19) of the state constitution by conditioning felons' eligibility to vote on their ability to comply with the financial obligations of their sentences such as the payment of court costs, fines, or restitution. Where the statute did not burden a fundamental right, since felons have no right to vote pursuant to Article VI, Section 2(3) of the constitution, or particularly burden a suspect class, the appropriate standard was rational basis review, under which the statute passed constitutional muster because the conditions placed on felons related to a legitimate government interest–ensuring that felons take responsibility for their crimes and exercise their voting rights responsibly. Cmty. Success Initiative v. Moore , 384 N.C. 194 (2023) (Author: Justice Trey Allen)

North Carolina—equal protection—facial challenge to state law—analytical framework—A facial challenge to a state law under the Equal Protection Clause of the state constitution will overcome the presumptive validity of an act of the General Assembly only upon proof beyond a reasonable doubt that the legislature enacted the law with discriminatory intent and that the law actually produces a meaningful disparate impact along racial lines. Holmes v. Moore , 384 N.C. 426 (2023) (Author: Justice Phil Berger, Jr.)

North Carolina—equal protection—voter ID law—discriminatory intent—disparate impact—On rehearing of a facial challenge to a voter ID law, the trial court abused its discretion when it acted under a misapprehension of the law–by using an incorrect legal standard and improperly shifting the burden of proof of constitutional validity to the legislature–to conclude that the voter ID law was unconstitutional in that it violated the Equal Protection Clause of the state constitution. Under the proper framework for evaluating a facial challenge under the state constitution, plaintiffs did not provide sufficient evidence to meet their burden of proving beyond a reasonable doubt that the legislature enacted the law with discriminatory intent and that the law actually provides disparate impact along racial lines by disproportionately impeding black voters from voting; therefore, plaintiffs failed to overcome the presumption of validity that attaches to legislative acts. The prior opinion issued in this case was withdrawn, the trial court's order was reversed, and the matter was remanded for entry of an order dismissing plaintiffs' claim with prejudice. Holmes v. Moore , 384 N.C. 426 (2023) (Author: Justice Phil Berger, Jr.)

North Carolina—equal protection—voter ID law—presumption of legislative good faith—In a facial challenge to a voter ID law, the trial court erred by concluding that the law was unconstitutional on the basis that it was enacted with discriminatory intent and that it therefore violated the Equal Protection Clause of the state constitution, and by permanently enjoining implementation of the law. Although the trial court applied the federal framework set forth in Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977), which is not binding on state courts interpreting the constitutionality of a state law under a state constitution, plaintiffs' claim failed under even this analysis because the trial court relied too heavily on past discrimination in the historical record and its own speculation regarding additional measures the legislature could have taken during the legislative process rather than on the presumption of legislative good faith, and thus improperly shifted the burden of proving constitutional validity to the General Assembly. Holmes v. Moore , 384 N.C. 426 (2023) (Author: Justice Phil Berger, Jr.)

North Carolina—facial challenge—felon voting rights statute—discriminatory intent—disparate impact—In a declaratory action challenging the facial constitutionality of N.C.G.S. § 13-1 (regarding felon voting rights, in particular for convicted felons on felony supervision), the trial court erred by failing to apply the presumption of legislative good faith and by assuming that past discrimination infected the legislative process that led to the enactment of the current law, which led it to erroneously conclude that the legislature enacted the law with discriminatory intent; therefore, the court's findings made under these misapprehensions of the law were not binding on appellate review. The trial court reached its decision by misapplying the analytical framework contained in Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977), to determine whether the statute violated the Equal Protection Clause (Article I, Section 19) of the state constitution and by adopting unreliable statistical evidence regarding the alleged disparate impact of the law on African Americans. Where plaintiffs failed to carry their burden of overcoming the presumptive validity of section 13-1, the trial court should have entered judgment for defendants on this claim. Cmty. Success Initiative v. Moore , 384 N.C. 194 (2023) (Author: Justice Trey Allen)

Right to be present at criminal trial—waiver—voluntariness of absence—suicide attempt—competency—The trial court's decision to proceed with a criminal trial in defendant's absence, without conducting further inquiry into defendant's capacity to proceed with the trial after defendant made an apparent suicide attempt partway through the trial by jumping off a balcony at the county jail, did not violate defendant's statutory protections with regard to competency to stand trial (pursuant to N.C.G.S. §§ 15A-1002 and 15A-1443) or his constitutional due process rights. Based on evidence taken by the trial court regarding the incident and defendant's mental health as well as arguments from defense counsel and the State, there was not substantial evidence that defendant may have lacked competency at the time of his apparent suicide attempt. The trial court's determination that defendant's absence from trial was voluntary because he committed an intentional act was supported by the court's prior colloquies with defendant (during which defendant waived his right to testify or to present evidence on his own behalf), the court's own direct observation of defendant's demeanor, and the court's review of evidence–including surveillance footage–of defendant's actions and demeanor at the time he jumped. State v. Flow , 384 N.C. 528 (2023) (Author: Justice Michael Morgan)

Breach of contract—express terms—summary judgment—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court erred by granting defendants' motion for summary judgment on plaintiffs' breach of contract claim as related to the Asset Purchase Agreement's Independent Milestone Provision, which provided that satisfaction of the criteria of one earnout milestone was not contingent on satisfaction of the criteria of any other milestone. Plaintiffs presented evidence tending to support their assertion that defendants conditioned certain milestones on the completion of others, in breach of the express terms of the contract. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Breach of contract—implied covenant of good faith and fair dealing—contractual gap—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err by granting defendants' motion for summary judgment on plaintiffs' breach of contract claims as related to certain sections of the Asset Purchase Agreement that permitted defendants to "reasonably determine" completion of the first and second software development earnout milestones. Because the tasks required for the milestones were not completed, defendants reasonably determined that the milestones had not been met. Where the contract was not silent on the issue, plaintiffs' arguments regarding the implied covenant of good faith and fair dealing were misplaced. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Breach of contract—third-party sales—summary judgment—remand—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court erred by granting defendants' motion for summary judgment on plaintiffs' breach of contract claim as related to the Asset Purchase Agreement's External Sales Provision, which concerned the sale of licenses to plaintiffs' software by defendants to third parties. Because defendants' Master Services Agreement (MSA) with a third-party pharmaceutical company included the use of the software and could be an "External Sale" under the Asset Purchase Agreement, the issue was remanded to the trial court for determination of whether the MSA was drafted such that the third-party company was required to pay consideration to acquire and use a license to plaintiffs' software. In addition, the covenant of good faith and fair dealing was inapplicable to this issue. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Separation settlement agreement—terms—naming of insurance policy beneficiaries—no ambiguity—In a declaratory judgment action regarding a separation settlement agreement–the terms of which defendant interpreted as requiring the proceeds from his deceased ex-wife's life insurance policy to be paid to him and not to her trust (which had been established for the benefit of their four children)–the Court of Appeals erred when it determined that the settlement agreement's terms regarding the ex-wife's ability to change the beneficiary of her life insurance policies were ambiguous. The agreement's plain language was clear and unambiguous; therefore, the trial court properly awarded summary judgment in favor of the trust. Galloway v. Snell , 384 N.C. 285 (2023) (Author: Justice Tamara Barringer)

Capital murder prosecution—preservation issues—The preservation issues defendant raised on appeal from his convictions for first-degree murder and related charges and his sentence of death were rejected by the appellate court as having no merit based on precedent. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Murder—death penalty—not disproportionate or arbitrary—Defendant's sentence of death in a murder prosecution for the killing of a young child was not disproportionate, excessive, or arbitrary where, after defendant was convicted of first-degree murder based on murder by torture and the felony murder rule based upon the felonies of first-degree kidnapping, sexual offense with a child, and felony child abuse inflicting serious bodily injury, and was also convicted of each of those three felonies, the jury found the existence of all three aggravating factors submitted to it, which were supported by the record. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Complex business case—third discovery request—unduly burdensome—remand—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err in denying plaintiffs' Third Discovery Request. The trial court complied with Business Court Rule 10.9 and Civil Procedure Rule 26, and the Supreme Court rejected as baseless plaintiffs' argument that the trial court converted an informal and required email request into a motion to compel. However, given the Court's holding on another issue regarding the parties' contract, the question of what further discovery may be appropriate was open for the trial court to consider on remand. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Bodies of water—permits to third parties—scope of authority—plain and unambiguous language—Based on the plain and unambiguous language of an easement purchased decades ago by Duke Power Company (Duke) in order to create Lake Norman (by constructing a dam and flooding the land), including language granting Duke "absolute water rights" and the right to "treat [the land] in any manner deemed necessary or desirable by Duke Power Company," Duke acted within the scope of its broad authority and discretion when it granted permits to third-party homeowners to build lake access structures and to use the lake for recreational purposes. Further, the easement's language was consistent with Duke's federal licensing obligations regarding the lake and the authority granted to Duke was confirmed by the parties' practice over many years in seeking permission from Duke to build shoreline structures over and into the submerged property. Duke Energy Carolinas, LLC v. Kiser , 384 N.C. 275 (2023) (Author: Chief Justice Paul Newby)

Legislative redistricting—claims of partisan gerrymandering—equal protection clause—not applicable—Plaintiffs' claims that partisan gerrymandering will diminish the electoral power of members of a particular political party did not implicate the equal protection clause in the state constitution's Declaration of Rights (Article I, Section 19). Partisan gerrymandering has no impact upon the right to vote on equal terms under the one-person, one-vote standard; therefore, partisan gerrymandering claims do not trigger review under the state's equal protection clause. Harper v. Hall , 384 N.C. 292 (2023) (Author: Chief Justice Paul Newby)

Legislative redistricting—claims of partisan gerrymandering—free elections clause—not applicable—The free elections clause in the state constitution's Declaration of Rights–"All elections shall be free." (Article I, Section 10)–does not limit or prohibit partisan gerrymandering, or even address redistricting at all. Based on its plain meaning, its historical context, and our Supreme Court's precedent, the free elections clause means that voters are free to vote according to their consciences without interference or intimidation. Harper v. Hall , 384 N.C. 292 (2023) (Author: Chief Justice Paul Newby)

Legislative redistricting—claims of partisan gerrymandering—free speech and freedom of assembly clauses—not applicable—The free speech and freedom of assembly clauses in the state constitution's Declaration of Rights (Article I, Sections 12 and 14) do not limit the General Assembly's presumptively constitutional authority to engage in partisan gerrymandering. Nothing in the history of the clauses or the applicable case law supported plaintiffs' expanded interpretation of them. Harper v. Hall , 384 N.C. 292 (2023) (Author: Chief Justice Paul Newby)

Legislative redistricting—claims of partisan gerrymandering—petition for rehearing—previous opinions overruled and withdrawn—It was proper for the Supreme Court to allow the legislative defendants' petition for rehearing pursuant to Appellate Procedure Rule 31 to revisit the issue of whether claims of partisan gerrymandering are justiciable under the state constitution, where the four-justice majority in Harper v. Hall (Harper I), 380 N.C. 317 (2022), expedited the consideration of the matter over the strong dissent of the other three justices, with no jurisprudential reason for doing so, and where Harper I and the same four-justice majority's opinion in Harper v. Hall (Harper II), 383 N.C. 89 (2022), were wrongly decided. Furthermore, Harper I did not meet any criteria for adhering to stare decisis. Upon rehearing, Harper I was overruled, and Harper II was withdrawn. Harper v. Hall , 384 N.C. 292 (2023) (Author: Chief Justice Paul Newby)

Legislative redistricting—claims of partisan gerrymandering—political questions—nonjusticiable—Claims of partisan gerrymandering present political questions and therefore are nonjusticiable under the state constitution. Plaintiffs' claims of partisan gerrymandering were nonjusticiable political questions because: The state constitution explicitly and exclusively commits redistricting authority to the General Assembly subject only to express limitations, leaving only a limited role for judicial review; the state constitution provides no judicially discernible or manageable standards for determining how much partisan gerrymandering is too much; and any attempt to adjudicate claims regarding partisan gerrymandering would require the judiciary to make numerous policy determinations for which the state constitution provides no guidance. Each factor on its own would be sufficient to render the claims nonjusticiable. Accordingly, the Supreme Court overruled Harper v. Hall (Harper I), 380 N.C. 317 (2022), withdrew Harper v. Hall (Harper II), 383 N.C. 89 (2022), and dismissed plaintiffs' claims with prejudice. Harper v. Hall , 384 N.C. 292 (2023) (Author: Chief Justice Paul Newby)

Legislative redistricting—claims of partisan gerrymandering—prior opinions overruled and withdrawn—racially polarized voting analysis—In a redistricting case, the Supreme Court overruled a prior opinion issued by a four-justice majority in Harper v. Hall (Harper I), 380 N.C. 317 (2022), and withdrew the same majority's subsequent opinion in Harper v. Hall (Harper II), 383 N.C. 89 (2022). The Court also specifically overruled the holding from Harper I that required the General Assembly to perform a racially polarized voting (RPV) analysis before drawing any legislative districts. Harper v. Hall , 384 N.C. 292 (2023) (Author: Chief Justice Paul Newby)

Legislative redistricting—claims of partisan gerrymandering—prior opinions overruled and withdrawn—remedy—Upon rehearing a redistricting case and concluding that plaintiffs' claims of partisan gerrymandering were nonjusticiable–thus overruling and withdrawing prior opinions in the matter–the Supreme Court addressed the appropriate remedy. The Court granted the legislative defendants the opportunity to enact a new set of legislative and congressional redistricting plans, guided by federal law, the objective constraints in the state constitution located in Sections 3 and 5 of Article II, and this opinion. Neither the original redistricting plans nor the remedial plans, which were created during the course of the litigation and used in the 2022 election cycle, were "established" within the meaning of Article II, Sections 3(4) and 5(4), because both plans were a product of a misapprehension of North Carolina law, and the original plans were never used in an election. Harper v. Hall , 384 N.C. 292 (2023) (Author: Chief Justice Paul Newby)

Legislative redistricting—standard of review—presumption of constitutionality—political question doctrine—Legislation passed by the General Assembly, which serves as the "agent of the people for enacting laws," is presumed constitutional, and the judiciary may declare an act of the General Assembly in violation of the state constitution only when the act directly conflicts with an express provision of the constitution. Therefore, when considering the constitutionality of redistricting plans drawn by the General Assembly, the judiciary must presume the plans' constitutionality and ask whether the plans violate an express provision of the constitution beyond a reasonable doubt. When the judiciary cannot locate an express textual limitation on the legislature, the issue may present a political question that is inappropriate for resolution by the judiciary. To respect the separation of powers, courts must refrain from adjudicating a claim where there is: a textually demonstrable commitment of the matter to another branch of government, a lack of judicially discoverable and manageable standards, or the impossibility of deciding the case without making a policy determination of a kind clearly suited for nonjudicial discretion. Harper v. Hall , 384 N.C. 292 (2023) (Author: Chief Justice Paul Newby)

Cumulative error—murder by torture of child victim—inflaming jury's passion—prejudice analysis—In defendant's capital trial for murder by torture of a child victim and related charges, where each of defendant's evidentiary challenges were rejected on appeal–including that the State introduced an excessive number of photographs of the victim's injuries, that some photos were needlessly shown during the testimony of more than one witness, and that witnesses were erroneously allowed to testify to their emotional reactions upon seeing the extent of the victim's injuries–there was no cumulative, prejudicial error in the trial court's evidentiary decisions taken as a whole given the overwhelming evidence of defendant's guilt. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Expert testimony—murder by torture of child victim—bite marks—abuse of discretion analysis—In defendant's capital trial for murder by torture of a child victim, the trial court did not abuse its discretion by allowing the State's expert witness in forensic dentistry to testify regarding numerous bite marks found on the victim's body–which he attributed to an adult human–even though three physicians had already testified with their opinions that certain marks on the victim's body were human bite marks made within a certain number of days prior to her arrival at the hospital. There was no meaningful dispute that defendant caused the marks on the victim's body since he had been her sole caretaker during the time period in question. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Expert testimony—murder by torture of child victim—emotional reactions from medical and law enforcement personnel—In defendant's capital trial for multiple charges including murder by torture and felony child abuse inflicting serious bodily injury, the trial court did not err by allowing various medical personnel and law enforcement officers to testify regarding their emotional reactions immediately upon seeing the extent of the victim's injuries after defendant brought her to the hospital. The probative value of the evidence was not substantially outweighed by the danger of unfair prejudice where the witnesses' reactions provided context to the jury regarding the severity of the victim's injuries in relation to the types of cases the witnesses usually saw in the course of their work. Moreover, defendant could not demonstrate prejudice given the overwhelming evidence of his guilt and of the victim's numerous severe injuries that she suffered over an extended period while in defendant's sole care. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Expert testimony—murder by torture—question of whether child victim was tortured—abuse of discretion analysis—In defendant's capital trial for murder by torture of a child victim, the trial court did not abuse its discretion by allowing two expert witnesses to testify (one during the guilt-innocence phase, the other during sentencing) regarding whether the victim was tortured. Where the term "torture" is not a legal term of art, testimony from the first witness (accepted as an expert in pediatrics and child abuse) that the victim's extensive and severe injuries were consistent with torture did not improperly invade the province of the jury and was properly admitted as being based on the expert's training and specialized knowledge. Further, testimony at sentencing from the second witness (accepted as an expert in forensic pediatrics with a specialization in child abuse and maltreatment) was not cumulative or unfairly inflammatory where that expert's opinions–in general with regard to the state of mind of a person who tortures and specifically that the victim's injuries were not accidental–were similarly based on a proper foundation of specialized training and background. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Mental health records—under seal—in camera review by appellate court—no exculpatory evidence—On appeal after defendant's capital trial for murder by torture of a child victim and related charges, in which the trial court ordered mental health records of the victim's mother to be placed under seal–after allowing some of the records to be released to defendant–the Supreme Court reviewed the sealed records in camera upon defendant's request and determined that they contained no exculpatory or impeaching evidence requiring disclosure. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Opening the door—cell phone evidence—abuse of discretion analysis—prejudice analysis—In defendant's murder trial that resulted in his conviction for voluntary manslaughter, assuming the State opened the door to evidence found on the victim's cell phone after the crime occurred, the trial court did not abuse its discretion in refusing to allow defense counsel to question witnesses about the cell phone evidence showing the victim with firearms and implicating him in acts of violence. Striking a balance that was fair to the State and defendant, the trial court did allow defense counsel to ask the victim's father whether the detective had shared the contents of the victim's cell phone with him, which invited the jury to doubt the father's testimony that he did not know anything about the victim possessing a firearm. Even if the trial court did abuse its discretion, exclusion of the cell phone evidence did not prejudice defendant because defendant did not know what was on the victim's cell phone at the time of the shooting, and therefore the evidence did not speak to whether defendant's use of force in self-defense was reasonable under the facts as they appeared to him at the time; further, there was no evidence that the victim possessed a gun when defendant killed him, and substantial evidence–including the gunshot wounds in the back of his head and his back–showed that the victim was attempting to flee when defendant fired his last two shots. State v. McKoy , No. 71A22 (N.C. Sep. 1, 2023) (Author: Justice Trey Allen)

Other crimes, wrongs, or acts—prior sexual assaults of a child—similarity to charged sexual offenses against another child—In a prosecution for statutory rape and other sexual offenses inflicted upon an eleven-year-old girl, the trial court properly admitted testimony under Evidence Rule 404(b) of defendant's prior sexual assaults of a different, fourteen-year-old girl, where the prior assaults were sufficiently similar to the charged crimes in that (1) both girls were middle-school-aged children attending schools where defendant taught, (2) defendant used his position as a middle school teacher to gain access to both girls, (3) defendant exerted control over both girls during the assaults despite their protests and tears, (4) defendant either engaged in or tried to engage in vaginal intercourse with both girls, (5) each assault took place during school hours or during school-related activities, (6) defendant only removed his pants and underwear halfway during each assault, and (7) defendant threatened both girls after assaulting them. State v. Pickens , No. 276A22 (N.C. Oct. 20, 2023) (Author: Justice Anita Earls)

Photographs—murder by torture—child victim—number, size, and manner of display—In defendant's capital trial for multiple charges including murder by torture, sexual offense with a child, and felony child abuse inflicting serious bodily injury, the trial court did not abuse its discretion by allowing the State to introduce eighty-eight photographs of the child victim's body and injuries–some of them close-ups–by showing them on a large monitor located close to the jury, where the photographs were more probative than prejudicial because they were: relevant to the offenses charged and to defendant's credibility, used to illustrate the respective testimonies of different witnesses, and not needlessly cumulative or excessive given evidence that the victim suffered at least 144 separate injuries over an extended period of time. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Relevance—murder trial—evidence of other possible perpetrators—not exculpatory—At the joint trial of two defendants for first-degree murder and other offenses arising from a fatal shooting, the trial court did not err in excluding evidence that defendants asserted showed two other people had committed the crimes for which they were on trial. Although the excluded evidence did suggest the possible involvement of other perpetrators, and was therefore relevant for purposes of Evidence Rule 401, it was still inadmissible where it did not also fully exculpate defendants (especially given the direct evidence of defendants' guilt, which included cellular phone data placing them at the crime scene and an eyewitness's identification of defendants both in court and during a pretrial photographic lineup). State v. Abbitt , No. 334A21 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Dismissal—fraud and fraudulent inducement—failure to meet particularity requirement—broad allegations—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err by dismissing plaintiffs' claims for fraud and fraudulent inducement based on representations allegedly made before the execution of the Asset Purchase Agreement and not involving the Non-Binding Letter of Intent. The claims were not pleaded with sufficient particularity to satisfy Civil Procedure Rule 9(b) where the complaint did not specify the time, place, particular content of the alleged representation, or the person who made the alleged representation. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Dismissal—fraud by omission and promissory fraud—failure to state a claim—failure to meet particularity requirement—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err by dismissing plaintiffs' claims of fraud by omission and promissory fraud pursuant to Civil Procedure Rules 12(b)(6) and 9(b). In the first place, plaintiffs did not raise those claims in their amended complaint; furthermore, plaintiffs failed to satisfy the particularity requirement of Rule 9(b). Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Dismissal—negligent misrepresentation—failure to meet particularity requirement—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err by dismissing plaintiffs' negligent misrepresentation claim for failure to satisfy the heightened pleading standard of Civil Procedure Rule 9(b) where the complaint did not allege the time, place, speaker, or specific contents of the alleged misrepresentation. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Intentional misrepresentation and fraudulent inducement—attempt to amend purchase agreement—amendments not made—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err by granting summary judgment in favor of defendants on plaintiffs' claims for intentional misrepresentation and fraudulent inducement based upon statements made by defendants' chief executive officer and senior vice president of IT regarding possible amendments to the Asset Purchase Agreement (APA). Evidence in the record supported defendants' representations that the company was attempting to amend the APA, and failure to reach an agreement on the amendment did not mean that defendants' representations were false at the time they were made. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Intentional misrepresentation and fraudulent inducement—letter of intent—non-binding—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err by granting summary judgment in favor of defendants on plaintiffs' claims for intentional misrepresentation and fraudulent inducement based on representations contained in the Non-Binding Letter of Intent (LOI). The LOI, which by its express terms was non-binding and not to be relied upon, could not form the basis of plaintiffs' fraud claims; furthermore, plaintiffs cited no authority in which a court has recognized a claim arising out of representations contained in a letter of intent. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

First-degree—felony murder—jury instruction on lesser-included offense—no evidentiary support—In defendant's prosecution for first-degree murder under the felony murder theory (and under no other theory) based on attempted robbery with a dangerous weapon–where the victim was found deceased from a gunshot wound with approximately two hundred dollars of loose cash and a bloodied iPhone on or near his body–the trial court properly denied defendant's request for a jury instruction on second-degree murder as a lesser-included offense, because the evidence of the underlying felony was not in conflict. Defendant's own statements that he planned to sell a cell phone and not rob the victim could not, alone, create a conflict in the evidence; a witness's statement that defendant planned to buy a cell phone, not sell one, did not negate any element of the underlying felony; and the loose cash found near the victim's body did not negate the evidence that defendant attempted to rob the victim with a dangerous weapon. State v. Wilson , No. 187A22 (N.C. Dec. 15, 2023) (Author: Chief Justice Paul Newby)

Second-degree murder—jury instructions—self-defense—aggressor doctrine—sufficiency of evidence—Defendant was not entitled to a new trial on her second-degree murder charge because the trial court properly instructed the jury on the aggressor doctrine where–considering the evidence in the light most favorable to the State and giving the State the benefit of the doubt wherever the evidence conflicted–the jury could reasonably infer that defendant was acting as an "aggressor" at the time that she allegedly shot the victim in self-defense. Notably, although the victim (defendant's lover) had initiated the confrontation leading up to his death by forcefully entering defendant's apartment against her wishes, the State's evidence suggested that defendant shot him in the back while he was on his way out and already six feet away from her. State v. Hicks , No. 136PA22 (N.C. Sep. 1, 2023) (Author: Justice Anita Earls)

Second-degree murder—malice—jury verdict—sentencing—In defendant's trial for second-degree murder, where the jury indicated on the verdict sheet its finding that all three forms of malice supported defendant's conviction–actual malice (a B1 felony), "condition of mind" malice (a B1 felony), and "depraved-heart" malice (a B2 felony)–the trial court properly imposed a B1 felony sentence (which is more severe than a B2 felony sentence). There was no ambiguity in the jury's verdict, which the trial court reviewed and confirmed with the jury, and the relevant statute, N.C.G.S. § 14-17(b), was unambiguous that a Class B2 sentence is required only when a second-degree murder conviction hinges on a finding of depraved-heart malice. State v. Borum , 384 N.C. 118 (2023) (Author: Justice Anita Earls)

Judicial—magistrate—sued in official capacity—applicability—In a statutory bond action against a magistrate who failed to timely serve plaintiff's nephew with an involuntary commitment order (subsequently, the nephew shot plaintiff with a crossbow during an acute psychotic episode), the Court of Appeals erred by holding that judicial immunity is a categorically unavailable defense to an official capacity claim against a judicial officer. Judicial immunity applies to both official capacity and individual capacity claims. Wynn v. Frederick , No. 314PA21 (N.C. Dec. 15, 2023) (Author: Chief Justice Paul Newby)

Sovereign—magistrate—statutory waiver—applicability—In a statutory bond action against a magistrate who failed to timely serve plaintiff's nephew with an involuntary commitment order (subsequently, the nephew shot plaintiff with a crossbow during an acute psychotic episode), the magistrate's sovereign immunity barred the suit. Section 58-76-5 of the N.C. General Statutes, which provides a limited waiver of sovereign immunity for certain officials covered by statutory bonds, did not encompass magistrates, which are state officers, when it provided the limited waiver for five specifically named categories of county officers "or other officer." The section's internal structure, broader statutory context, and statutory history made clear that the General Assembly intended to limit the section's scope to bonded county officers. Wynn v. Frederick , No. 314PA21 (N.C. Dec. 15, 2023) (Author: Chief Justice Paul Newby)

Possession of a firearm by a felon—charged with other offenses—single indictment—sufficiency of notice—Defendant's indictment for possession of a firearm by a felon, which also charged defendant with two related offenses, was not fatally defective for violating N.C.G.S. § 14-415.1(c) (which requires a separate indictment for possession of a firearm by a felon) and did not deprive the trial court of jurisdiction over that offense because the facts alleged in the indictment were sufficient to put defendant on notice regarding the essential elements of each individual offense and to allow defendant to prepare a defense. The Supreme Court expressly overruled State v. Wilkins, 225 N.C. App. 492 (2013), which improperly elevated form over substance when interpreting the requirements of section 14-415.1(c). State v. Newborn , 384 N.C. 656 (2023) (Author: Chief Justice Paul Newby)

Sufficiency—going armed to the terror of the public—act committed on a public highway—not an essential element—Defendant's indictment for the common law offense of going armed to the terror of the public was sufficient to confer jurisdiction upon the trial court, where the indictment alleged that defendant waved a firearm around in the parking lots of two different locations, including a private apartment complex. After overruling a prior case saying otherwise, the Supreme Court clarified that the crime of going armed to the terror of the public does not include as an essential element that the act occur on a public highway. Therefore, defendant's indictment was not fatally defective where the locations it mentioned did not constitute public highways. State v. Lancaster , No. 240A22 (N.C. Dec. 15, 2023) (Author: Justice Phil Berger, Jr.)

Coverage under parents' policy—resident of household—time spent in the home—intent to form common household —In an action where an insurance company sought a declaratory judgment stating that defendant was not covered under her mother's and stepfather's underinsured motorist policy (for severe injuries resulting from a car accident), the trial court erred in granting summary judgment to defendant where a genuine issue of material fact existed regarding whether she was a "resident" of her mother's household entitled to coverage under the policy. Although defendant claimed in affidavits that she split her residency between her divorced parents' homes, she also gave sworn testimony indicating that she merely visited her mother's home for occasional, short periods of time without necessarily spending the night. Moreover, some of defendant's statements cast doubt on whether she and her mother intended to form a common household, indicating instead that she was part of her father's household only (she stated that she lived alone with her father for the fifteen-year period preceding her car accident; she depended on her father for financial support; all of her mail went to her father's home; and she treated her father's address as her home address for car title, property tax, and voter registration purposes). N.C. Farm Bureau Mut. Ins. Co., Inc. v. Herring , No. 227A22 (N.C. Dec. 15, 2023) (Author: Justice Trey Allen)

Motion to disqualify—murder trial—judge previously prosecuted defendant's mother—potential witness—appearance of impropriety—In defendant's capital trial for murder by torture of a child and related charges, defendant's motion to disqualify the trial judge (which was assigned to another judge for ruling) was properly denied where, although the presiding judge had been the prosecutor twenty years earlier at defendant's mother's trial for allegedly hiring someone to kill defendant's father (for which she was acquitted), there was no indication–despite defendant's assertion that the judge was a potential witness with regard to the childhood trauma that defendant experienced as a result of family dysfunction–that the judge had knowledge of any evidence that would be relevant to defendant's defense, nor was there any actual bias or the risk of impartiality based on the judge's interactions with the family in the past. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Personal—specific—nonresident corporate officers—resident employee terminated—insufficient contacts—In a suit brought by a former employee after he was terminated, in which he sued both his corporate employer and two individual defendants who worked for the corporation (neither of whom lived in North Carolina), plaintiff did not establish sufficient minimum contacts between the individual defendants and the state of North Carolina to subject them to personal jurisdiction in this state, and his complaint lacked specific allegations that the individual defendants were the primary participants in the alleged wrongdoing that gave rise to the suit. Schaeffer v. SingleCare Holdings, LLC , 384 N.C. 102 (2023) (Author: Justice Anita Earls)

Personal—specific—nonresident corporation—resident employee terminated—entire relationship considered—In a suit brought by a former employee after he was terminated, nonresident corporate defendants were subject to personal jurisdiction in North Carolina because they purposefully availed themselves of the privileges of conducting business-related activities in this state and those activities arose from or were related to plaintiff's claims. Although defendants initiated the employment relationship with plaintiff in California where plaintiff was then living, defendants established minimum contacts with North Carolina to survive constitutional analysis through multiple voluntary and intentional acts, including subsequently approving of and assisting in plaintiff's move to North Carolina, communicating with and supporting plaintiff as he expanded defendants' business in North Carolina, employing at least three other individuals in this state, serving North Carolina consumers by offering discounts for pharmacy benefits at retail locations throughout the state and, ultimately, terminating plaintiff's employment when he was a North Carolina resident. Schaeffer v. SingleCare Holdings, LLC , 384 N.C. 102 (2023) (Author: Justice Anita Earls)

Standing—development enforcement action—town—compliance with state law and ordinance—A town had standing to file its lawsuit for a mandatory injunction, abatement order, and collection of civil penalties from developers of a residential subdivision (who continued to violate a requirement under the town's development ordinance to maintain roads within the subdivision until the town accepted the roads for public maintenance) and did not deprive the trial court of subject matter jurisdiction where, although the town council did not pass a resolution approving of the complaint until after the complaint was filed, the council's approval was not required. The town's action complied with N.C.G.S. § 160A-12, which authorizes a town to enforce its powers "as provided by ordinance or resolution of the town council," and with its development ordinance, which authorized the town's zoning administrator to refer violators to the town's attorney for the filing of a civil action. Town of Midland v. Harrell , No. 120A22 (N.C. Oct. 20, 2023) (Author: Justice Trey Allen)

Standing—facial constitutional challenge—felon voting rights statute—direct injury—redressability—In a declaratory action challenging the facial constitutionality of N.C.G.S. § 13-1 (regarding felon voting rights), the six individual plaintiffs–convicted felons who were unable to vote while on felony supervision–had standing to bring their action because they sufficiently alleged a direct injury and the redressability of the alleged violations if they were to prevail. Only one of the four nonprofit organization plaintiffs (N.C. NAACP), however, had standing to sue on behalf of its members, where the complaint alleged that some of its members were ineligible for re-enfranchisement under the law and that the interest of those members in regaining the franchise was tied to the organization's mission, and where the organization could obtain relief for those members without their participation in the lawsuit. The remaining three nonprofit organization plaintiffs did not allege that they had members who were directly injured by the statute but instead referenced vague harms such as the need to divert resources to educate members about how the law might affect their voting rights. Cmty. Success Initiative v. Moore , 384 N.C. 194 (2023) (Author: Justice Trey Allen)

Selection—Batson challenge—prima facie case not established—newly discovered evidence—procedural bar—Defendant's motion for appropriate relief (MAR), in which defendant raised a Batson claim that the State exhibited purposeful discrimination during jury selection in his trial for first-degree murder, was procedurally barred pursuant to N.C.G.S. § 15A-1419 because defendant was in a position to adequately raise his claim on direct appeal and in prior post-conviction proceedings but failed to do so, and he failed to establish either good cause and actual prejudice or a fundamental miscarriage of justice to overcome the procedural bar. In particular, although defendant based his MAR on "newly discovered evidence" in the form of a continuing legal education handout listing permissible reasons to strike jurors and a statistical analysis of juror selection in North Carolina capital cases, the content of both items could have been discovered previously through reasonable diligence. The Supreme Court noted that any arguments related to pretext (step three of the Batson inquiry) had no place in the review of defendant's MAR since the trial court's determination during jury selection that defendant failed to establish a prima facie case of discrimination (step one of the Batson inquiry) rendered analysis of the State's reasons for its strikes (erroneously solicited by the trial court) unnecessary. State v. Tucker , No. 113A96-4 (N.C. Dec. 15, 2023) (Author: Justice Phil Berger, Jr.)

Selection—Batson challenge—prima facie case—limited record—ratio of excused jurors—In defendant's prosecution for first-degree murder, the trial court did not err by determining that defendant had failed to establish a prima facie case of racial discrimination during jury selection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), where the State used three out of four peremptory strikes to excuse black potential jurors and defendant was unable on appeal to produce any additional facts or circumstances for consideration–due largely to defendant's specific request at trial that jury selection not be recorded. The single mathematical ratio, standing alone, was insufficient to show clear error in the trial court's determination. Finally, the Supreme Court did not consider the State's race-neutral explanation for its peremptory strikes–which the trial court had ordered the State to provide–because the trial court's Batson inquiry should have concluded with the court's determination that defendant had failed to make a prima facie showing and should not have moved to the second step. State v. Campbell , 384 N.C. 126 (2023) (Author: Justice Phil Berger, Jr.)

Selection—Batson challenge—prima facie showing—In defendant's capital trial for murder by torture of a child victim and related charges, defendant did not establish a prima facie case of intentional discrimination pursuant to Batson after the prosecutor used peremptory challenges early in the jury selection process to dismiss two Black prospective jurors, where certain factors–including the racial identification of defendant, the victim, and primary witnesses–did not support defendant's argument and where the trial court's discretionary decision to exclude a report analyzing historical jury strikes as hearsay was not clearly erroneous. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Selection—Batson challenge—third step of inquiry—juror comparison—The trial court did not clearly err in determining that defendant failed to prove, pursuant to the third step of the analysis set forth in Batson v. Kentucky, 476 U.S. 79 (1986), that the State engaged in purposeful discrimination in peremptorily striking three black prospective jurors in defendant's trial for first-degree murder. The trial court properly considered numerous factors and its findings were supported by the evidence, including, among other things, that the case was not susceptible to racial discrimination; that a study relied upon by defendant regarding the history of prosecutors’ use of peremptory strikes in the jurisdiction was misleading and potentially flawed; that a side-by-side comparison of the three excused black prospective jurors–whom the State had explained were excused based on their reservations about the death penalty, connections with mental health issues, connections with substance abuse issues, or criminal record–with similarly situated non-excused white jurors did not support a finding of purposeful discrimination; and that even if the juror comparisons supported a finding of discrimination, the totality of the remaining circumstances outweighed the probative value of the comparisons. State v. Hobbs , 384 N.C. 144 (2023) (Author: Chief Justice Paul Newby)

Selection—excusal for cause—reservations about death penalty—empathy for drug users—In defendant's capital trial for murder by torture of a child victim and related charges, the trial court did not abuse its discretion or violate defendant's right to a fair and impartial jury by excusing two potential jurors for cause where the court had the opportunity to hear the jurors in person and assess their ability to follow the law. Although the first juror equivocated about whether his religious convictions and conscience would allow him to impose the death penalty, he eventually indicated that his ability to follow the law would be substantially impaired even if he was convinced beyond a reasonable doubt that defendant was guilty and that punishment by death was warranted. Similarly, the second juror dismissed for cause expressed reservations about whether he could impose death as punishment and, given his own past experiences and substance abuse, stated that he would have trouble being objective and impartial as it related to drug use, which was forecast to be an issue in the case. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Selection—gender discrimination—prima facie showing—In defendant's capital trial for murder by torture of a child victim and related charges, the trial court did not clearly err by determining that defendant had not established a prima facie case of intentional discrimination based on gender after the prosecutor used a peremptory challenge early in the jury selection process to dismiss a Black female prospective juror, where there were twice as many females as males in the potential juror pool and, at the time of defendant's challenge, four of the five jurors already seated were women. Further, a statement by one of the prosecutors indicating a lack of familiarity with the law prohibiting gender-based juror strikes was not, by itself, sufficient to demonstrate intentional discrimination. State v. Richardson , No. 272A14 (N.C. Sep. 1, 2023) (Author: Justice Michael Morgan)

Delinquency petition—misdemeanor sexual battery—force—sufficiency of allegations—A juvenile delinquency petition was not fatally defective where it contained sufficient facts to support each essential element of misdemeanor sexual battery, in particular the element of force, which was clearly inferable from allegations that the juvenile willfully engaged in sexual conduct with a classmate by touching her vaginal area against her will for the purpose of sexual gratification. In re J.U. , 384 N.C. 618 (2023) (Author: Justice Phil Berger, Jr.)

Driving while impaired—probable cause to arrest—evidence viewed as a whole—erratic driving—signs of impairment—In a prosecution for driving while impaired, the trial court erred in granting defendant's motion to suppress evidence from his arrest where, viewing the evidence as a whole, the officer who arrested defendant had probable cause to do so. Although some evidence at trial cut against a finding that defendant was driving while impaired, a reasonable officer still would have had a substantial basis to suspect defendant of drunk driving where: at the time of the arrest, defendant was driving erratically, veering over the centerline six to seven times, swerving onto the oncoming lane twice, and skating onto the right shoulder of the road; both defendant's breath and the interior of his truck smelled of alcohol, and defendant's eyes were red and glassy; defendant confessed to drinking "a couple of beers" before driving; and defendant showed all six clues of impairment during a horizontal gaze nystagmus test. State v. Woolard , No. 208PA22 (N.C. Dec. 15, 2023) (Author: Justice Anita Earls)

Amendments—undue delay and material prejudice—previous extensive revisions, discovery closed, full briefing on motion to dismiss—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not abuse its discretion in denying, based on undue delay and material prejudice to defendants, plaintiffs' motion for leave to file a Second Amended Complaint. Plaintiffs had previously amended their complaint with extensive revisions; discovery had closed, with thousands of documents exchanged; and the parties had fully briefed the motion to dismiss plaintiffs' Amended Complaint. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Exclusionary rule—not mandatory—remand for determination of propriety—Where a warrantless automobile search violated the Fourth Amendment, the Supreme Court remanded the matter to the trial court for a determination of whether the evidence obtained from the search should be suppressed pursuant to the exclusionary rule. The Court noted that the exclusionary rule is not mandatory and that it should be applied only where the benefits of deterring police misconduct outweigh the societal costs of suppressing evidence of a defendant's guilt. State v. Julius , No. 95A22 (N.C. Oct. 20, 2023) (Author: Justice Phil Berger, Jr.)

Traffic stop—independent reasonable suspicion—traffic violation—impaired driving—Defendant's Fourth Amendment rights were not violated as a result of a traffic stop and search of his vehicle where law enforcement officers had independent reasonable suspicion–apart from a traffic checkpoint–to justify stopping defendant's vehicle, based on the officers' observation that defendant's car ran off the road and onto the grass alongside the road before coming to a stop at the checkpoint, which indicated a traffic violation of failure to maintain lane control and possible impaired driving. State v. Alvarez , No. 278PA21 (N.C. Dec. 15, 2023) (Author: Justice Tamara Barringer)

Warrantless search of vehicle—automobile accident—driver missing—search incident to lawful arrest—automobile exception—A search and subsequent seizure violated the Fourth Amendment where police officers: found a vehicle stuck in a ditch when they arrived at the scene of an automobile accident; were informed by defendant that she was the passenger and that a person named Kyle had been driving (she provided no other information about his identity); were informed by witnesses that the driver had fled on foot after stating that he had outstanding warrants; searched the vehicle for evidence of the driver's identity without first obtaining consent or a search warrant; found a bag, which defendant stated belonged to the driver, containing methamphetamine, scales, and two cell phones; and subsequently arrested defendant and searched her backpack, finding bags of a clear, crystalline substance, a pistol, a glass pipe, and a large amount of cash. The search was not justified by the search incident to lawful arrest exception to the warrant requirement because the driver had fled the scene and posed no threat of entering the vehicle, and there was no evidence that the vehicle contained evidence of the crime of hit-and-run that risked destruction by the driver if it were not immediately seized. Further, the fact that the driver could have been arrested later did not justify the search; finally, but for the unlawful search of the vehicle, the officers would not have had probable cause to search defendant's backpack and arrest her. As for the automobile exception, it did not apply where the vehicle was immobile due to being down in a ditch and partially submerged in water. Other exceptions to the warrant requirement lacked evidentiary support in the record. State v. Julius , No. 95A22 (N.C. Oct. 20, 2023) (Author: Justice Phil Berger, Jr.)

Presumption of regularity—consideration of improper factors—defendant's exercise of right to demand jury trial—After defendant was convicted of first-degree statutory rape and first-degree statutory sexual offense with a child, defendant's sentences were upheld on appeal where it could not be clearly inferred from the court's statements at sentencing that, in deciding to impose consecutive sentences, the court had improperly considered defendant's exercise of his constitutional right to demand a trial by jury; thus, the presumption of regularity afforded to sentences within statutory limits was not overcome in this case. Specifically, the court stated that "[the victims] didn't have a choice and you, [defendant], had a choice," but when viewed in context, the statement gave rise to two equally reasonable inferences: that the court was referring to defendant's choice to plead not guilty and to demand a jury trial, or that the court was referencing defendant's choice to commit egregious sexual crimes against children. State v. Pickens , No. 276A22 (N.C. Oct. 20, 2023) (Author: Justice Anita Earls)

Registration—early termination—ten-year registration requirement—prior out-of-state registration—The trial court did not err by denying defendant's petition pursuant to N.C.G.S. § 14-208.12A for early termination of his requirement to register as a sex offender where defendant did not meet the statutory requirement of maintaining registration in a North Carolina county for at least ten years. Although he filed his petition almost thirteen years after initially registering in another state, the "initial county registration" in section 14-208.12A refers to initial registration in a North Carolina county, not initial registration in a county in any state. State v. Fritsche , No. 344PA21 (N.C. Dec. 15, 2023) (Author: Chief Justice Paul Newby)

Medical malpractice—minor plaintiff—thirteen years old at time of accrual of claim—ordinary three-year limitations period—The Court of Appeals properly concluded that plaintiff's medical malpractice claim–in which he alleged that defendants negligently performed an appendectomy on him when he was thirteen years old–was time barred pursuant to N.C.G.S. §§ 1-15(c) and 1-17(c) because plaintiff did not file his action until more than five years after the surgery that gave rise to the claim. Although plaintiff argued that, since his injury accrued when he was still a minor, he had until the age of nineteen to file a claim, where none of the exceptions contained in section 1-17(c) applied to toll the limitations period, plaintiff's claim was subject to the standard three-year statute of limitations. Morris v. Rodeberg , No. 296A22 (N.C. Dec. 15, 2023) (Author: Justice Trey Allen)

Amendment of juvenile petition—additional allegations—harmless error—In a termination of parental rights proceeding, where the trial court properly terminated a mother's rights to her daughter on the ground of willful failure to make reasonable progress, any error by the trial court in allowing the department of social services to amend the juvenile petition during the termination hearing in order to add allegations in support of a different ground (that the parent's rights to another child had been involuntarily terminated and the parent lacked the ability or willingness to establish a safe home) was harmless. In re H.B. , 384 N.C. 484 (2023) (Author: Justice Richard Dietz)

Best interests of the child—statutory factors—bond between mother and child—The trial court did not abuse its discretion in the disposition phase of a termination of parental rights proceeding by concluding that termination of a mother's parental rights to her daughter was in the daughter's best interests. The court's findings reflected its consideration of the relevant statutory factors contained in N.C.G.S. § 7B-1110(a), including its finding that there was no bond between the mother and her daughter, and the findings were supported by competent evidence. Any discrepancies in the evidence were within the trial court's province to resolve based on its assessment of the credibility and weight to be given to the evidence. In re H.B. , 384 N.C. 484 (2023) (Author: Justice Richard Dietz)

Findings of fact—reference to timeline report—independent determination of credibility and reliability—The trial court's order terminating respondent mother's rights to her daughter based on willful failure to make reasonable progress was supported by sufficient findings of fact, including the court's finding that it relied on and accepted into evidence a timeline that was introduced by the department of social services without objection, which was signed and notarized by a social worker and which summarized the department's interactions with respondent. The finding was more than a mere recitation of the evidence and constituted a proper evidentiary finding reflecting the court's independent evaluation of the evidence where the court stated specifically that it determined the timeline to be "both credible and reliable." In re H.B. , 384 N.C. 484 (2023) (Author: Justice Richard Dietz)

Grounds for termination—neglect—willful abandonment—sufficiency of evidence—In a private termination of parental rights action, the trial court's determination that grounds were not established to terminate respondent father's parental rights to his daughter based on neglect or willful abandonment (N.C.G.S. § 7B-1111(a)(1), (7)) was affirmed where there was no record evidence demonstrating that respondent had previously neglected the child, that there was a likelihood of future neglect if she were to be placed in his care, or that respondent showed an intention to give up all parental rights to her, particularly where there was evidence that petitioner mother actively prevented respondent from forming a relationship with the child. In re S.R. , 384 N.C. 516 (2023) (Author: Justice Anita Earls)

Grounds for termination—willful failure to pay child support—sufficiency of findings—correct standard of review—In a private termination of parental rights action, the trial court's determination that grounds were not established to terminate respondent father's parental rights to his daughter based on willful failure to pay child support (N.C.G.S. § 7B-1111(a)(4)) was affirmed where the trial court made no findings that an order existed requiring respondent to pay support–despite evidence that respondent had paid support but that his payments stopped after petitioner mother elected to stop garnishment of his wages through centralized collections–or that respondent's failure to provide support was willful. The correct standard of review at the adjudication stage is whether the findings of fact are supported by clear, cogent, and convincing evidence, and whether the findings support the conclusions of law; to the extent the Court of Appeals' opinion affirming the trial court's decision could be read to instead apply the abuse of discretion standard, that portion of its opinion was modified. In re S.R. , 384 N.C. 516 (2023) (Author: Justice Anita Earls)

Parental right to counsel—failure of respondent to appear—dismissal of provisional counsel—statutory requirements met—The trial court acted in accordance with N.C.G.S. §§ 7B-1108.1(a)(1) and 7B-1101.1(a)(1) in a termination of parental rights matter when it dismissed respondent mother's provisional counsel after respondent failed to appear at a pretrial hearing. Respondent did not challenge the court's determination that all service and notice requirements had been met and did not argue that she lacked notice of the hearing in her arguments to the Court of Appeals, which erred by addressing the notice issue without first being presented with that issue. In re R.A.F. , 384 N.C. 505 (2023) (Author: Justice Tamara Barringer)

Breach of contract and fraud claims—termination of employment—substantial evidence—In a complex business case arising from defendants' agreement to purchase software applications from plaintiffs (a corporation and its founder), the trial court did not err by granting summary judgment in favor of defendants on plaintiffs' claims under the Unfair and Deceptive Trade Practices Act (UDTPA). First, plaintiffs' UDTPA claims (aside from the claim regarding plaintiff founder's termination) were simply a repackaging of their breach of contract and fraud claims–essentially alleging that defendants had failed to perform under the terms of the contract, which did not support a finding of the required "substantial aggravating circumstances." In addition, when viewed in the light most favorable to plaintiffs, the record did not contain evidence creating a genuine issue of material fact. As for plaintiffs' other UDTPA claim–that co-founder plaintiff's termination was unfair–plaintiffs failed to overcome the high threshold to surpass the at-will employment presumption. Value Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc. , No. 100A22 (N.C. Sep. 1, 2023) (Author: Justice Tamara Barringer)

Written notice of injury to employer—delayed treatment—causal relation of injury—sufficiency of evidence—The Industrial Commission properly entered an opinion and award in favor of plaintiff, who, as an employee of a trucking company along with her husband, sustained spinal injuries in a work-related tractor-trailer accident in which her husband was also injured. Competent evidence, including expert testimony from plaintiff's spinal neurosurgeon, supported the Commission's findings of fact, which in turn supported its conclusions of law that: plaintiff's injury was causally related to the accident despite having some pre-existing medical conditions; that, although plaintiff filed an immediate report of the accident itself and her husband's injury, she had a reasonable excuse for delaying written notice of her own injury for a year and a half and her employer was not prejudiced by the delay; and that plaintiff was temporarily totally disabled and unable to work as of a particular date for a specified number of months. Sprouse v. Mary B. Turner Trucking Co., LLC , 384 N.C. 635 (2023) (Author: Justice Michael Morgan)