Abandonment of issues—"swapping horses" on appeal—issue not raised at trial or in prior appeal—In a breach of contract action brought against the Board of Governors of the University of North Carolina (defendant) by students (plaintiffs) seeking refunds for mandatory fees and parking permits they paid for during the COVID-19 pandemic, defendant's argument–that, in light of the statutory mandate in N.C.G.S. § 116-143(a), the fees at issue in the case could not be the subject of a contract–was not preserved for appeal. Defendant neither raised the issue before the trial court nor included it in their appellate brief in their prior appeal to the Court of Appeals, and defendant could not "swap horses" between courts to "get a better mount" before the Supreme Court. Lannan v. Bd. of Governors of the Univ. of N.C. , No. 316PA22 (N.C. Mar. 21, 2025) (Author: Justice Trey Allen)

Murder prosecution—juvenile defendant—gender discrimination in jury selection—issue raised post-conviction—procedurally barred—In a first-degree murder case involving a juvenile defendant who, during the pendency of his appeal to the Supreme Court from the Court of Appeals' decision affirming his conviction, filed a motion for appropriate relief asserting for the first time a claim of unconstitutional gender discrimination in jury selection, pursuant to J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), defendant's J.E.B. claim was procedurally barred under N.C.G.S. § 15A-1419 (barring appellate review of issues raised in post-conviction proceedings, including when the defendant was in a position to raise the issue in a prior appeal but failed to do so) for the reasons stated in his co-defendant's appeal in State v. Bell, No. 86A02-2 (N.C. Mar. 21, 2025). State v. Sims , No. 297PA18 (N.C. Mar. 21, 2025) (Author: Justice Phil Berger, Jr.)

Preservation of issues—jury selection—gender-based discrimination—failure to object or raise in prior appeal—The Supreme Court affirmed the trial court's denial of defendant's amended motion for appropriate relief–in which he claimed that, in a trial that resulted in defendant being sentenced to death for first-degree murder, the prosecution engaged in gender-based discrimination during jury selection in violation of his constitutional rights to equal protection under the law as articulated in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)–where defendant's J.E.B. argument was not preserved because, despite multiple explicit statements made in open court by the prosecutor about wanting more men on the jury, defendant failed to raise this constitutional issue at trial, during jury selection or otherwise. Moreover, even had defendant preserved his J.E.B. claim, it was procedurally barred pursuant to N.C.G.S. § 15A-1419 because he did not raise this issue in his previous appeal despite having access to direct evidence (the explicit statements by the prosecutor), statistical evidence (apparent in the record regarding the State's use of peremptory strikes), and side-by-side comparison evidence (regarding the female potential juror whose strike was at the heart of the claim and other venire members who were not struck). State v. Bell , No. 86A02-2 (N.C. Mar. 21, 2025) (Author: Justice Tamara Barringer)

Preservation of issues—motion for judgment notwithstanding the verdict—not specifically raised in motion for directed verdict—waiver—In a complex business case, the Supreme Court endorsed a line of precedent from the Court of Appeals holding that, to preserve an issue for use in a motion for judgment notwithstanding the verdict (JNOV) pursuant to Civil Procedure Rule 50(b)–which is essentially a renewal of a motion for directed verdict (DV)–a party must first have timely moved for a DV on the issue, articulating the same specific argument or theory to the trial court. Here, because defendant's JNOV argument as to a conversion claim rested upon a theory raised in his DV motion only as to a separate claim (for embezzlement), the Business Court properly held that the JNOV argument was waived as to conversion. Likewise, the argument underlying defendant's JNOV motion as to a fraud claim–insufficient evidence of intent to deceive–was waived where his DV motion on that claim was based upon insufficient evidence of another element–his having made misrepresentations. Vanguard Pai Lung, LLC v. Moody , No. 15A24 (N.C. Mar. 21, 2025) (Author: Justice Richard Dietz)

Standard of review—cruel and unusual punishment—life imprisonment without parole—juvenile defendant—In a first-degree murder case involving a juvenile defendant who, after his conviction, appealed his sentence of life imprisonment without parole on the ground that it violated his Eighth Amendment rights, the appellate court properly reviewed the trial court's sentencing determination for an abuse of discretion. Thus, there was no merit to defendant's argument that, instead of applying an abuse of discretion standard, the appellate court should have engaged in a "meaningful analysis" of whether the trial court's findings supported a conclusion that he was "irreparably corrupt." State v. Sims , No. 297PA18 (N.C. Mar. 21, 2025) (Author: Justice Phil Berger, Jr.)

Cruel and unusual punishment—juvenile defendant—life imprisonment without parole—consideration of mitigating factors—In a first-degree murder case involving a juvenile defendant, the sentence of life imprisonment without parole (LWOP) did not violate defendant's Eighth Amendment rights despite his contention that he was not one of those "rare" juveniles who were "irreparably corrupt." Defendant's argument failed on appeal because: (1) the trial court properly followed the sentencing procedure enunciated in the state's Miller-fix statute–consisting of weighing mitigating factors regarding defendant's youth and attendant characteristics–and it is the adherence to this procedure that makes LWOP sentences "rare" for juveniles, thereby eliminating any Eight Amendment concerns; and (2) the Miller-fix procedure did not require the court to make a separate finding that defendant was "irreparably corrupt" before imposing LWOP. Further, the trial court did not abuse its discretion when weighing the Miller factors where its challenged findings of fact were supported by the evidence, the court properly considered any mitigating evidence pertaining to each factor, and–although the court did not enter findings as to every fact arising from the evidence and perhaps could have said more about particular mitigating circumstances–the factors could not be reweighed on appeal. State v. Sims , No. 297PA18 (N.C. Mar. 21, 2025) (Author: Justice Phil Berger, Jr.)

Eighth Amendment—consecutive life sentences imposed—juvenile defendant—Miller factors—The Supreme Court upheld defendant's consecutive sentences of life without the possibility of parole, which were imposed after he was convicted of two counts of first-degree murder for killing his parents just before he turned eighteen years old, where the sentences did not violate the Eighth Amendment of the federal Constitution as interpreted by Miller v. Alabama, 567 U.S. 460 (2012) or Art. I, sec. 27 of the North Carolina constitution, which does not provide additional protections for juvenile defendants. The trial court expressly considered evidence in mitigation with regard to each of the factors contained in N.C.G.S. § 15A-1340.19B–a statute that was enacted to address the Miller requirements–including defendant's youth and attendant circumstances, and defendant's capacity to consider the consequences of his actions, and did not abuse its discretion in weighing the evidence and the factors before reaching its sentencing decision. State v. Borlase , No. 33A24 (N.C. Mar. 21, 2025) (Author: Justice Phil Berger, Jr.)

Eighth Amendment—juvenile offender—life imprisonment without parole—separate review of state constitutional claim not required—The decision of the Court of Appeals upholding the trial court's imposition of consecutive sentences of life imprisonment without parole–for two first-degree murders committed when defendant was seventeen years old–was affirmed where, contrary to defendant's assertion, the appellate court properly analyzed each of defendant's challenges to his sentences under federal and state constitutional provisions. Even so, since the sentences did not violate the Eighth Amendment to the United States Constitution, which provides greater protections for juvenile offenders than Art. I, sec. 27 of the North Carolina Constitution, and since the Eighth Amendment and section 27 have been interpreted in lockstep, a separate review of defendant's state constitutional claim was unnecessary. Further, defendant's sentences did not implicate–and thus were not in violation of–State v. Kelliher, 381 N.C. 558 (2022), because he was not a member of the narrow class of juvenile offenders to which that case applied. State v. Tirado , No. 267PA21 (N.C. Jan. 31, 2025) (Author: Chief Justice Paul Newby)

North Carolina—separation of powers—child sexual abuse claims—dismissed in prior final judgments—not revived by legislation—In a pair of consolidated cases involving claims of child sexual abuse by Catholic priests, which plaintiffs originally raised over a decade earlier and which were dismissed with prejudice because they were time-barred, plaintiffs' new lawsuits were properly dismissed on the ground that their claims were now barred by principles of res judicata. Although plaintiffs had filed their new suits after the General Assembly had passed the SAFE Child Act, which revived previously time-barred claims of child sexual abuse by extending the applicable statute of limitations, the Act did not override the earlier final judgments dismissing plaintiffs' claims. Under the North Carolina Constitution and separation of powers principles, the judicial power–which includes the powers to enter and set aside judgments–belongs to the judicial branch alone; therefore, an act of the legislative branch cannot set aside a final judgment entered by the judicial branch. Doe 1K v. Roman Cath. Diocese , No. 167PA22 (N.C. Jan. 31, 2025) (Author: Justice Richard Dietz)

North Carolina—tort claims—child sexual abuse—retroactive alteration of expired statutes of limitations—no vested right—In considering a facial challenge to a provision of the SAFE Child Act allowing victims of child sexual abuse to file otherwise time-barred tort claims during a specified two-year period, the Supreme Court construed the Law of the Land and Ex Post Facto Clauses of the North Carolina Constitution to affirm, as modified, the Court of Appeals' lead decision holding that an action–brought against a county board of education (defendant) by three men (plaintiffs) who, as minors, were sexually abused by their high school wrestling coach–did not implicate any constitutionally protected vested right. The statute of limitations applicable to plaintiffs' tort claims fell outside the scope of the vested right doctrine because it affected procedural remedies–rather than property of the sort protected by the Law of the Land Clause–and, having been created by legislation, could be altered by legislation. Further, the text and history of the Ex Post Facto Clause–along with pertinent caselaw–revealed that retroactive civil laws which do not impose taxes are constitutionally permissible. Finally, the Court noted that the lower appellate court's tiered substantive due process framework analysis was immaterial to defendant's argument, and thus, unnecessary. McKinney v. Goins , No. 109PA22-2 (N.C. Jan. 31, 2025) (Author: Chief Justice Paul Newby)

Waiver of right to counsel—statutory colloquy—range of permissible punishments—tantamount to a life sentence—Where defendant sought to waive his right to counsel and represent himself on numerous felony charges–arising from his assault, kidnapping, and rape of his mother–and the trial court, in undertaking the colloquy required by N.C.G.S. § 15A-1242, erroneously informed defendant (then 29 years old) that he could face a term of imprisonment of 75 to 175 years (the actual sentence imposed upon defendant's convictions totaled 121 to 178 years), the Supreme Court affirmed the Court of Appeals' determination that defendant was not entitled to a new trial because, despite the trial court's numerically inaccurate statement of the range of sentences defendant could receive, defendant was made aware that he faced what was tantamount to a life sentence; accordingly, no statutory error occurred. The Court of Appeals' decision was modified to clarify that the trial court was responsible for engaging defendant in a thorough colloquy as required by statute as to all charges–not just the most serious–and could not delegate that duty to the prosecutor. State v. Fenner , No. 289PA23 (N.C. Mar. 21, 2025) (Author: Justice Richard Dietz)

Breach—express contracts—sufficiency of allegations—motion to dismiss—evidence needed for trial—In a breach of contract action brought against the Board of Governors of the University of North Carolina (defendant) by students (plaintiffs) seeking refunds for mandatory fees and parking permits they paid for during the COVID-19 pandemic, plaintiffs' complaint alleged sufficient facts to overcome defendant's Civil Procedure Rule 12(b)(6) motion to dismiss for failure to state a claim; specifically, plaintiffs sufficiently alleged the existence of express contracts between the parties for specific on-campus benefits in exchange for payment. Although defendant's argument–that there was never a meeting of the minds between the parties to form a contract–was properly rejected at the motion-to-dismiss phase, plaintiffs would need to prove their allegations with evidence in order to defeat defendant's argument at trial. Lannan v. Bd. of Governors of the Univ. of N.C. , No. 316PA22 (N.C. Mar. 21, 2025) (Author: Justice Trey Allen)

Limited liability companies—grounds for judicial dissolution—managerial deadlock—continued operations not practicable—factors adopted—In a case involving two family-owned limited liability companies (LLCs), which together owned 68 acres of undeveloped land (the Property), the North Carolina Business Court did not abuse its discretion by judicially dissolving the LLCs pursuant to N.C.G.S. § 57D-6-02(2)(i) where undisputed evidence showed that, because the only two managers of the LLCs were at a complete impasse regarding operating decisions–resulting in no development or active use of the Property for its intended purpose for several years, even though there was some continued financial feasibility of the LLCs–and the LLCs' Operating Agreements did not provide a mechanism for breaking the deadlock, it was "not practicable" for the LLCs to continue operating. The Supreme Court defined the statutory term "not practicable" as "unfeasible" rather than "impossible," and adopted a six-factor balancing test for determining whether it was not practicable for an LLC to continue in accord with its operating agreement. James H.Q. Davis Tr. v. JHD Props., LLC , No. 32PA24 (N.C. Jan. 31, 2025) (Author: Justice Tamara Barringer)

Equitable distribution—classification of land—pretrial stipulation—no ruling on motion to set aside—invited error—The decision of the Court of Appeals upholding a trial court's equitable distribution (ED) order, in which the trial court classified a tract of land as defendant's separate property even though the parties had filed a pretrial stipulation classifying the tract as marital property, was modified and affirmed. Although plaintiff argued that the stipulations remained binding on the parties because the trial court never ruled on defendant's motion to set them aside, any error by the trial court in failing to rule on the motion constituted invited error and could not serve as the basis for a new ED hearing because plaintiff's attorney expressly invited the trial court to proceed with the ED hearing even though no direct proceeding had been held on defendant's motion to set aside the stipulations. Smith v. Smith , No. 79A24 (N.C. Mar. 21, 2025) (Author: Justice Trey Allen)

Cell phone records—strictly computer-generated data—neither hearsay nor testimonial—Confrontation Clause—inapplicable—In a prosecution for multiple sexual offenses against a minor, the trial court did not violate the Confrontation Clause or the rule against hearsay by admitting defendant's cell phone records along with a derivative record showing communications between his and the victim's phones. First, the records consisted of strictly computer-generated data, created without any human judgment or input; therefore, they did not constitute hearsay, which necessarily refers to statements made by a human "declarant" capable of making assertions. Second, even though law enforcement later accessed the records with the primary purpose of producing evidence for defendant's trial, the computer systems that generated the cell phone data as part of the phone company's day-to-day operations could not have created the records for that same primary purpose, especially since machines, by their nature, cannot act with intent at all; therefore, the records were not testimonial either. State v. Lester , No. 293PA23-2 (N.C. Jan. 31, 2025) (Author: Justice Anita Earls)

Federal public emergency act—unwanted vaccination during pandemic—tort claims barred—no preemption of state constitutional claims—A county board of education and a medical provider affiliated with the county school system (defendants) were not completely shielded from suit filed by plaintiffs (a fourteen-year-old student and his mother) arising from the student being given a COVID-19 vaccine against his and his mother's wishes. The federal Public Readiness and Emergency Preparedness (PREP) Act, activated in response to the COVID-19 pandemic, provided immunity from tort injuries caused by the administration of any "covered countermeasure" during a public health emergency and, therefore, defendants were immune from plaintiffs' state law battery claims. However, contrary to the decision of the Court of Appeals, the PREP Act did not preempt plaintiffs' claims under the North Carolina constitution (regarding the mother's right to control the upbringing of her son and both plaintiffs' shared right to the son's bodily integrity), which did not constitute "claims for loss" under the Act. Therefore, the lower appellate court's opinion barring all of plaintiffs' claims was affirmed in part and reversed in part, and the matter was remanded to that court to resolve the remaining state constitutional issues raised in the parties' briefs. Happel v. Guilford Cnty. Bd. of Educ. , No. 86PA24 (N.C. Mar. 21, 2025) (Author: Chief Justice Paul Newby)

Sovereign—waiver—breach of contract—express contracts—pleading—In a breach of contract action brought against the Board of Governors of the University of North Carolina (defendant) by students (plaintiffs) seeking refunds for mandatory fees and parking permits they paid for during the COVID-19 pandemic, where the Court of Appeals affirmed the trial court's denial of defendant's motion to dismiss on the ground that–taking the complaint's allegations as true–defendant waived sovereign immunity by entering into implied-in-fact contracts with plaintiffs, the Supreme Court affirmed and modified the Court of Appeals' decision, clarifying that plaintiffs' complaint sufficiently alleged that defendant waived immunity by entering into express contracts, wherein they offered plaintiffs specific on-campus services, access to campus facilities, and access to on-campus parking in exchange for payment of the fees and the purchase of parking permits. Lannan v. Bd. of Governors of the Univ. of N.C. , No. 316PA22 (N.C. Mar. 21, 2025) (Author: Justice Trey Allen)

Tort claims—child sexual abuse—retroactive alteration of expired statutes of limitations—applicable to enablers of abuse—The Supreme Court, having held in a companion case (McKinney v. Goins) that the revival provision of the SAFE Child Act–allowing victims of child sexual abuse to file otherwise time-barred tort claims during a specified two-year period–was facially constitutional, affirmed the decision of the Court of Appeals that the provision resuscitated claims against parties who allegedly enabled abuse, as well as direct abusers. Given that North Carolina has not recognized a distinct child sexual abuse tort, instead permitting victims to sue for common law torts–such as those grounded in negligence, the statute of limitations for which is found in N.C.G.S. § 1-52–the provision's plain text ("reviv[ing] any civil action for child sexual abuse otherwise time-barred under G.S. 1-52") applied to negligence-based causes of action brought against a Roman Catholic order and diocese (together, defendants) by a man who alleged he suffered sexual abuse as a child by a clergyman employed and supervised by defendants. The revival provision's use of the phrase "for child abuse" identified only the category of tort addressed and did not restrict the theory of tort liability a plaintiff could pursue. Cohane v. Home Missioners of Am. , No. 278A23 (N.C. Jan. 31, 2025) (Author: Justice Anita Earls)

Permits—asphalt plant—compliance with setback requirements—meaning of "commercial building"—In a case regarding a county planning board's decision to issue a permit under the county's Polluting Industries Development Ordinance (PID Ordinance) for a company to build an asphalt plant, the board's decision was affirmed where, because a mobile shed and a barn near the proposed plant site were not "commercial buildings" under the PID Ordinance, the company's permit application complied with the PID Ordinance's "commercial building" setback requirements. The mobile shed was not a "building" given its impermanence (it lacked a foundation, footers, and running water; and it was demonstrably easy to relocate), and the barn, though clearly a "building," was not being used primarily for "commercial" purposes. Ashe County v. Ashe Cnty. Plan. Bd. , No. 249PA19-2 (N.C. Mar. 21, 2025) (Author: Justice Allison Riggs)

Permits—asphalt plant—county planning board—authority to make factual determinations de novo—material misrepresentations in application—In a case regarding a county planning board's decision to issue a permit under the county's Polluting Industries Development Ordinance (PID Ordinance) for a company to build an asphalt plant, where the county planning director denied the company's permit application after finding that it contained material misrepresentations regarding compliance with the PID Ordinance, the board's decision to reverse the planning director's denial was affirmed on appeal. To begin with, the board had statutory authority to substitute its judgment for the planning director's on factual and legal issues, including whether the company's application contained material misrepresentations. Further, the board's unchallenged (and therefore binding) factual findings showed that the alleged misrepresentations–concerning grading discrepancies, alleged setback violations, and production tonnage changes–were either immaterial or unsupported by the evidence. Ashe County v. Ashe Cnty. Plan. Bd. , No. 249PA19-2 (N.C. Mar. 21, 2025) (Author: Justice Allison Riggs)

Permits—asphalt plant—ordinance moratorium—triggering of permit choice statute—timing of application's completion —In a case regarding a county planning board's decision to issue a permit under the county's Polluting Industries Development Ordinance (PID Ordinance) for a company to build an asphalt plant, where the board issued the permit after having repealed and replaced the PID Ordinance with a new one, the board's decision was affirmed because, at the time the company submitted its application (which was before a temporary moratorium went into effect), the application was sufficiently "complete" under the state's moratoria statute (N.C.G.S. § 160D-107(c)) to trigger the state's permit choice statute (N.C.G.S. § 160D-108(a)), which allows developers to choose which version of an ordinance applies if it is amended between the time an application was "submitted" and a permit decision is made. Specifically, a "complete" application refers not to a fully finalized application but rather to one accepted by the permitting authority as adequate to begin permit compliance review. Further, although the PID Ordinance prohibited permit issuance without state and federal permits, the fact that the company did not have a state permit in hand when it submitted its application did not render the application incomplete. Ashe County v. Ashe Cnty. Plan. Bd. , No. 249PA19-2 (N.C. Mar. 21, 2025) (Author: Justice Allison Riggs)