c e l e b r a t i n g 2 5 y e a r s o f l e g a l j o u r n a l i s m

O C T O B E R 1 9, 2 0 1 5 I VO L . 2 8, N O. 3 3 I N C L AW Y E R S W E E K LY.C O M I $ 9.0 0 P E R C O P Y

SIDEBAR
Daughtry to retire from Legislature / 7 Got y’all’s goat / 5

COA: Form 60
MOST IMPORTANT equals Parsons
presumption
OPINIONS Question on futility decided
based on pre-Fields law
THIRD QUARTER/ 2015 ■ HEATH HAMACHER
heath.hamacher@nclawyersweekly.com

If an employer files a Form 60 admitting

S e e P a ge 11 ► that a compensable injury has occurred and
an employee subsequently files for addition-
al medical treatment, a presumption—often
referred to as a Parsons presumption—auto-
matically arises that future medical claims
are related, unless rebutted by the employer,
according to a recent North Carolina Court
of Appeals ruling.
The Oct. 6 decision in Wilkes v. City of
Greenville was not one of first impression, but
an attorney for plaintiff Johnnie Wilkes, Ani-
ta Hunt of The Hunt Law Firm in Durham,
said the ruling provides clarity regarding who
bears the burden in these workers’ compensa-
tion claims.
“That’s what’s been going wrong. We have
been made to prove our case again and again
and again and again and the law says we do
not have to prove our case,” Hunt said. “We
have to prove our case when associated with a
Form 60 one time.”
The appeals court panel unanimously
found that the North Carolina Industri-
al Commission erred when it determined
that Wilkes, a 62-year-old landscaper who
worked for the city for nine years, failed to
demonstrate that his anxiety and depression
were caused by a previous work-related ac-
cident and that he was no longer entitled to
temporary total disability benefits.
Judge Mark Davis, writing for the court,
also clarified the issue of whether an employ-
ee is required to offer expert testimony re-
garding the futility of a job search. Adhering
to prior case law and veering from April’s ap-
peals court decision in Fields v. H&E Equip.
Serv., LLC, this panel found that expert testi-
mony is not, in fact, required.
According to court documents, Wilkes was
driving a city-owned truck in 2010 when an-
other driver ran a red light and crashed into
Wilkes’ vehicle, knocking it into a tree. Wilkes
suffered broken ribs and injuries to his neck,
back, pelvis and hip. A brain MRI showed

S e e PA R S O N S P a g e 6 ►

News / 3 Voices / 4 Sidebar / 5

Attorney’s suspension upheld Estate plan questions answered Chalk one up for InfiLaw
2 / NEWS
NEWS BRIEFS
Elections board ousts
official over posts
RALEIGH (AP) — North Caro-
lina’s elections board dumped a lo-
cal official who made racially tinged
Facebook posts praising the Confed-
eracy and suggesting that blacks who
protested against Republican policies
weren’t “productive good citizens”
with jobs.
The State Board of Elections voted
3-2 to dismiss Rowan County Elec-
tions Chairman Malcolm “Mac” But-
ner, whose social media accounts
also expressed support for individual
candidates in violation of state law.
Butner’s case marks the first time the
state board has removed an elections
official over social media postings.
Butner told the board in a letter
he did nothing wrong but couldn’t re-
spond fully due to medical problems.
He didn’t attend the hearing or re-
spond to messages seeking comment.
Butner had a long record of “intem-
perate” remarks that made him un-
suited for a role that doesn’t allow po-
litical expressions such as campaign
bumper stickers on cars, said board
chairman Josh Howard, a Republican
who sided with the board’s two Demo-
crats to oust Butner.
“If you’re in charge of counting the
votes everybody should be confident
that you’re going to count everyone’s
vote equal,” Howard said.
Ross announces run
for US Senate seat
RALEIGH (AP) — Former state
legislator Deborah Ross joined the
race last week to try to unseat Re-
publican U.S. Sen. Richard Burr next
year, saying she’s getting in because
too many North Carolina residents
feel they can’t meet their potential
and “all want a government that puts
people first.”
Ross, a Raleigh attorney who
served in the state House for 10 years,
joins Spring Lake Mayor Chris Rey as
a candidate for the Democratic nomi-
nation in March.
Releasing a short video, the
52-year-old Ross said people are
looking for economic security and af-
fordable quality health care. Senior
adults want to know Social Security
and Medicare are protected and stu-
dents don’t want to be crushed by col-
lege debt, she added.
Ross’ formal entry into the race
— she had made her interest pub-
lic a few months ago — means there
will be a Democratic Senate primary
March 15. Burr earned a double-digit
percentage general election victory
in 2010, but national Democrats con-
tend Burr is vulnerable in a presi-
dential election year in what’s been a
battleground state since 2008.
Democrats had a hard time recruit-
ing high-profile candidates. Former
U.S. Sen. Kay Hagan, who lost to Re-
publican Thom Tillis in 2014, passed
on another campaign in June.
DOJ grant to fund
juvenile reintegration
RALEIGH – Gov. Pat McCrory an-
nounced last week that North Caroli-
na is one of three states to be awarded
a U.S. Department of Justice grant to
implement an innovative reintegra-
tion of juvenile offenders into the com-
munity.
“Our strategy focuses on improved
assessment, delivering the appropri-
ate education or workforce training
and family engagement so they can
be the support system for their child
when they re-enter the community,”
Governor McCrory said. “Our youth
must be given every chance to suc-
ceed and reach their potential.”
The DOJ awarded the North Car-
olina Department of Public Safety
$735,000, with a required match of
$367,500, to implement the new com-
munity reentry program.
Specific elements to be created by
the new program include
• Improved juvenile assessment
policies and practices
• A comprehensive service plan
throughout the juvenile justice sys-
tem continuum
• Creation and implementation of
a tool to match juveniles to the ser-
vices they need
• Delivery of effective and develop-
mentally appropriate programming
for juveniles, including the develop-
ment of an education and workforce
development strategy that targets
criminogenic needs
• Implementation of a family en-
gagement and strengthening strategy
to ensure that juveniles reentering
family life can depend upon a strong
and stable support system
• Documenting the effects of this
reentry reform strategy on recidi-
vism, education, employment and be-
havioral health outcomes
Tine says session took
toll, won’t re-run
KITTY HAWK (AP) — The
only unaffiliated lawmaker at the
North Carolina General Assem-
bly announced last week he won’t
seek re-election in 2016, citing the
strains of the recently concluded
Attorney: Timothy M. Mullinax
Location: Hendersonville
Bar membership: Member since 2003
Disciplinary action: Censured on Aug. 4
Background: Mullinax sent his client a
copy of a complaint, summons and
motion for expedited hearing in which
the client was named as plaintiff. The
documents included a court file number
and were dated, which led the client to
believe that Mullinax had filed the
documents in court when he had not
ac tually done so. The Grievance
Committee found that Mullinax had
thereby misrepresented the status of
the lawsuit to that client. Mullinax also
failed to reply timely to follow-up
questions submitted by a state bar staff
attorney.
Previous discipline: Mullinax was
admonished in 2014 for neglect and a
failure to respond to the Grievance
Committee’s follow-up letter regarding
the grievance.
Attorney: Joan M. Mitchell
Location: Durham
Bar membership: Member since 1991
Disciplinary action: Reprimanded on
Aug. 7
Background: Mitchell was hired to pursue
a medical malpractice claim and contacted
a nurse to review the medical records. The
nurse found only one deviation from the
standard of care, which she did not believe
N O R T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 19, 2015
LAWYERS ON
THE MOVE
CROWELL BERKLAND HENDERICKSON ROBINSON
Crowell returns to Tharrington Smith
Michael Crowell has returned to the Raleigh law firm of
Tharrington Smith as a partner following nearly a decade of teaching
at the UNC School of Government. Crowell practiced for 22 years at
Tharrington Smith before leaving in 2007 to serve as a professor of
public law and government at the UNC School of Government focusing
on judicial authority and administration.
Robinson Bradshaw adds 3 associates
Robinson Bradshaw & Hinson has added three attorneys to the
practice. Adam Berkland, Kelsey Hendrickson and Sharika
Robinson have joined the firm as associates.
legislative session. Tine, 43, said since being home he’s
Rep. Paul Tine of Dare County
was originally elected as a Demo-
come to realize his absence took a
“heavy toll” on his family.
crat in 2012 but shifted his voter “It is important that I take the
registration last January and cau- time while my children are still
cused with the Republican majority young to be a father and husband,”
this year. He said will serve out the Tine said in a release. He said it was
rest of this second two-year term. important to announce now because
The General Assembly session candidate filing begins in December
ended just two weeks ago — the in advance of an earlier primary, to
longest annual meeting since 2001. be held March 15.
BAR DISCIPLINE
ROUNDUP
was a cause of the patient’s death. Mitchell also failed to ensure that notice of her
requested and was granted an extension departure from the firm was provided
to the statute of limitations to obtain all to the clients she represented while
medical records and locate persons with the firm.
qualified as expert witnesses to review Previous discipline: None
them. During the next six months, she did
not obtain additional records and made no
Attorney: Stephen M. Corby
genuine effort to find an expert witness
who could testify. When Mitchell filed the Location: Charlotte
complaint, it was based on the nurse’s Bar membership: Member since 2011
findings, even though the nurse could not Disciplinary action: Reprimanded on Aug. 7
qualify as an expert on the medical care, Background: A client hired Corby to
and thus filed a complaint that was pursue a civil claim. Colby told the client
frivolous and lacking merit. that the complaint had been filed and one
Previous discipline: None of the defendants had been served when
neither of these things had actually
Attorney: Renorda E. Pryor happened. A complaint was eventually
filed, but the local grievance committee
Location: Raleigh
investigator could not find any evidence
Bar membership: Member since 2007 in the client’s file that Corby had actually
Disciplinary action: Reprimanded on tried to serve the defendants. The lawsuit
Aug. 7 was later dismissed for failure to
Background: Pryor failed to timely file prosecute. Corby failed to inform the
a Rule 59 motion on behalf of two client that the suit had been dismissed.
c l i e nt s . At t h e t i m e, Pr yo r w a s Corby stated that the clerk’s office had not
preparing to leave her employment informed him of the dismissal, but he had
with her law firm, which she did in
2013, and focused her attention on her
failed to monitor the case so as to be
informed about its dismissal.
departure from the firm rather than on Previous discipline: None
her representation of the firm’s clients,
to th e cli e nt s ’ d e t r i m e nt . Af te r
All information contained in the Bar Disci-
departing from the firm, but before
pline Roundup is compiled from reports
being permit ted by the cour t to
provided by the North Carolina State Bar
withdraw from representation, Pryor
and edited by staff writer David Donovan.
failed to appear in court on behalf of a
He can be reached at david.donovan@
client she had represented on a
nclawyersweekly.com
criminal matter while with the firm. She
N O R T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 19, 2015
Another year in jail
Brothers held in civil contempt since 2011 refuse to budge
■■ PHILLIP BANTZ
phillip.bantz@nclawyersweekly.com
“They’re still in jail,” Kim Duhon
said wearily into the phone on a re-
cent afternoon. This was her first time
talking with a reporter in a while. A
few years ago, media organizations
across the state were covering her
uncles’ extraordinary plight. But the
coverage tapered off toward the end of
2014. Since then, it’s been quiet.
Her uncles, Melvin Davis and Li-
curtis Reels, have held their ground,
despite being largely forgotten behind
bars as they suffer legal and health
setbacks. Reels has been diagnosed
with diabetes in jail, where he and
Davis have been held for civil con-
tempt since March 2011.
Earlier this year, the North Caro-
lina Supreme Court denied their peti-
tion for a writ of habeas corpus three
days after it was filed.
The court made its decision so
quickly that Lamar Armstrong, a
Smithfield attorney at Armstrong &
Armstrong who represents the group
of investors who are in a legal stand-
off with Davis and Reels, did not have
a chance to respond to the petition.
Davis and Reels have been locked
up for civil contempt longer than any-
one in North Carolina history because
they will not bow to a court order re-
quiring them to relinquish bucolic
waterfront land near Beaufort that
has been in their family for more than
a century. Their refusal to gather
their belongings from the land and
agree to never return again spurred
a trial judge to hold the pair in civil
contempt more than four years ago.
The Adams Creek Associates in-
vestment group acquired the prop-
erty after a relative of Reels and
Davis sold it in the 1980s, according
to multiple decisions from the state’s
trial and appellate courts. But Davis
and Reels refuse to acknowledge that
the relative in question was ever the
rightful owner of the property, as
do their family members who live
around the disputed land and are
said to be less-than-friendly with po-
tential developers, which leaves Ad-
ams Creek in a bind.
Melvin Davis and Licurtis Reels
Still, neither side is backing down.
“Our position remains the same,”
Armstrong said. “This is them think-
ing that if they’re stubborn enough
they can beat the system. … They’re
becoming martyrs by choice.”
Meanwhile, Duhon vowed that her
uncles “are not going to give up.”
“They’re like the warriors of our
family,” she added. “It’s really emo-
tional. They’re holding on, but it’s by
the skin of their teeth.”
Davis and Reels’ most recent at-
torney, Terry Richardson of Wilm-
ington, withdrew from their case
after they filed the habeas petition
without his help in June. He referred
questions to Duhon.
“It was never a good time, as he
[Richardson] saw it, to file a writ. So
we took it upon ourselves to file it pro
se,” she said. But she later added that
Richardson, the latest in a string of
lawyers who have represented the
family, “has taken us as far as any at-
torney has gotten us and we’re appre-
ciative of that.”
Under state law, a civil contempt
sentence can stretch on indefinitely
and without further hearings on the
matter if someone refuses to perform
a court-ordered act that does not re-
quire monetary payment, unless it’s
child support.
Now, after exhausting their op-
tions in the state courts, Davis and
Reels hope to find some relief at the
federal level, according to Duhon.
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She said the family had been talking
with new attorneys, but had not yet
secured representation for the next
chapter of litigation.
A Pennsylvania man, Beatty
Chadwick, spent 14 years locked
up for civil contempt – he holds the
national record – but he had con-
tended that it was impossible for
him to comply with a court order to
turn over money that he said he lost.
Davis and Reels, by contrast, simply
refuse to obey the court.
“They’ve argued that at some point
it’s punishing and unlawful to con-
tinue to hold them,” Armstrong said.
“But nowhere in their argument do
they say they don’t have the keys in
their pocket. … The people I know
who have talked about this case
scratch their heads because it’s so
hard to understand why they would
sacrifice their lives the way they are.”
Davis is 67 years old and Reels is
57. The owner of the Adams Creek
partnership, Billy Dean Brown, is in
his 80s, according to Armstrong. He
said that Brown “hopes he lives long
enough to see this thing resolved.”
But he added that if Brown were to
die during the stalemate one of his
partners would pick up the sword and
forge ahead.
“How long is too long?” Arm-
strong said. “”I don’t think there is
too long a time.”
Follow Phillip Bantz on Twitter
@NCLWBantz
NEWS / 3
COA upholds
suspension of Kitty
Hawk attorney
■■ DAVID DONOVAN
david.donovan@nclawyersweekly.com
A Kitty Hawk attorney en-
gaged in a conflict of interest by
representing both parties in a
real estate closing after the two
sides signed an agreement that
acknowledged that a potential
conflict existed but failed to actu-
ally identify the potential conflict.
That was the ruling handed down
by the North Carolina Court of Ap-
peals on Oct. 6, upholding a two-
year suspension handed down to
the attorney, Dan Merrell.
Merrell’s client and “long-time
associate,” Michael Lam, had so-
licited $1.5 million in funds from
two Maryland residents, Thomas
and James Gordon, to invest in
real estate in Tyrell County, which
is near the Outer Banks. Merrell
drafted the documents necessary
to create the limited liability com-
pany that would purchase and de-
velop the land, and the Gordons
wired the funds to purchase the
land to Merrell’s trust account.
Merrell then learned that Lam
intended to buy the land through
his own LLC, Deepwater Develop-
ment Company, of which he was
the only member, and then turn
around and sell the land to himself
and his partners at a much higher
price, pocketing a tidy profit at the
other partners’ expense. Merrell
advised Lam that the contemplat-
ed transactions could constitute
fraud and violate state and federal
law, and that Merrell would not
represent him in the transactions
unless complete disclosure was
made to Lam’s partners and all of
them approved the arrangement.
Lam told Merrell that he had
made the disclosures, but Mer-
rell did not insist on any written
proof. Merrell served as closing
attorney for Lam’s purchases of
the land tracts in question, and
then was the closing attorney
when Lam (via Deepwater) sold
the land back to the LLC in which
the Gordons had invested. The
transactions resulted in a profit
of close to $1 million for Lam.
See SUSPENSION Page 7 ►
 Voices
4/ N O R T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 19, 2015

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MOST
1/
Supreme Court extends
2/
Stephen Corby
3/
Chalk one up for InfiLaw
VIEWED protection for loan guarantors reprimanded

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… AND OTHER MYTHS

■ ALEXANDER A. BOVE JR. AND MELISSA LANGA
Dolan Media Newswires
BOSTON — Attorneys frequently get calls
from clients who say, “I need a will,” when
what they really mean is that they need an
estate plan. And the clients who make those
calls almost always end up with more than
just a will.
Today’s estate plan, even for relatively mod-
est estates, typically involves a will, a durable
power of attorney, a health care proxy and a
trust, usually for each spouse or partner, if a
couple is involved. Of course, in larger estates
or more complicated family situations, there
will be more documents.
Even the simple plans are not really simple,
however, and the clients themselves are get-
ting more sophisticated. They are asking chal-
lenging questions that we should be prepared
to answer.
With a nod to David Letterman, here are
our Top 10 questions asked by the typical es-
tate planning client, and our answers:
10. Why do I need all these documents —
and even a trust? Isn’t a simple will enough?
The period when just a will was all a person
needed ended shortly after the end of World
War II. A will only disposes of one’s assets
at death. Acquisition of property, retirement
plans, savings and life insurance gave and con-
tinue to give most of us an “estate” that requires
legal attention during our lifetime — especially
during incapacity — as well as more elaborate
dispositive provisions at death. These “extra”
documents, such as a trust, a durable power of
attorney and a health care document, are de-
signed to deal with that.
9. I already have a durable power of attor-
ney I made a few years ago. Why do I need
a new one?
Many banks and other financial institutions
are reluctant to honor a power of attorney that
is several years old (even though by statute
they remain legally valid). It is easy and in-
expensive to review and renew it every three
to five years to avoid confrontations. As im-
portant, most of us review and revise our core
documents every year (or every time there is a
problem), and only a recently drafted durable
power is likely to deal with digital assets and
foreign property, as an example.
8. If I should become incompetent, can my
spouse or my power of attorney change my
trust or will?
Certainly a power of attorney does not al-
low the attorney-in-fact to change your will. It
may, however, allow that person to amend your
trust depending on the specific language in
the power of attorney document and the trust.
And you can grant a power of appointment in
your documents to your surviving spouse (or
another person) to alter the dispositive provi-
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 Sidebar
N O R T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 19, 2015
/5

The news told differently

Got y’all’s goat

We have all heard lawyers referred to as bloodsuckers before, but not The AP wrote that Invictus is aware that being a pagan and Libertar-
so much in a literal sense. But here it is, Halloween on the horizon, and ian won’t help him in any election (Florida’s most well-received Liber-
one Florida attorney has given us here at Sidebar some fodder, taking tarian only received 3.8 percent of the vote), he nevertheless is hopeful.
the meaning of “sacrifice” to another level. And after all, with the wilderness god on his side,
Attorneys sacrifice all the time. They sacrifice who can stand against him?
time with their families, their personal lives Heath Hamacher
and their health, all in the name of jurispru-
dence. They don’t often sacrifice billy goats and
they almost never dismember them, drink their
blood and offer them to the gods of the woods.
Enter Augustus Sol Invictus. Birth name: un-
known.
Invictus, 32, a self-proclaimed Libertarian (much
to the chagrin of other party members), is on a quest to
become a U.S. senator. But it’s his quest from 2013 that
has him in the headlines.
According to the Associated Press, two years ago Invictus,
founder of the Imperium law firm in Orlando, walked from
Florida to somewhere in the Mojave Desert where he spent a
week fasting and praying. After returning home, “in a pagan
ritual,” Invictus admittedly killed a goat and drank its blood.
While he admits to the act, Invictus denies being a white su-
premacist or trying to start a civil war — which his own party mem-
bers have accused him of — he told the AP he does see a “cataclysm”
coming and that the government is already at war with its citizens. It’s
just a matter of time, he added, before citizens begin fighting back.
In the event of a great war, Invictus says, he would “wander into the
wilderness and return bearing revolution,” the AP reported.
Some entities, including Libertarians, may wish he would wander
somewhere and return not.
Invictus has admittedly been investigated by law enforcement and
tweeted just days ago that the FBI called his girlfriend—whom he
describes as “a frail woman with well-known psychiatric issues”—and
“terrorized” her. While not overly appreciative of that gesture, he said
he is “flattered” the government considers him a threat.

Number of the Week: $150,312 CShhhhOL

Here’s a bit of disappointing, though not
That’s how much the state paid Smith Anderson in May and June for the firm’s entirely unexpected, news for those of us who
work on Map Act litigation against the North Carolina Department of Transportation. were hoping to have a peek at the Charleston
Phillip Bantz School of Law’s financials.
The two law professors who are suing the
school, Allyson Stuart and Nancy Zisk, have
consented to confidentiality orders that will
likely keep all the interesting documents that

Chalk one up for InfiLaw

The oft-criticized InfiLaw System, corpo-
rate purveyor of bottom-tier legal education
for debt-ridden students, doesn’t get many
wins. But the pariah of academia recently
scored a victory against a group of its own
disenchanted alumni.
The grads alleged in a federal suit that
the InfiLaw-owned Florida Coastal School
of Law lied to them about their chances of
landing a decent job after they stepped out
into the real world with a JD from the school.
U.S. District Judge Brian Davis dis-
missed the suit in late September after
finding that the grads failed to prove that
their alma mater’s actions were unfair
and deceptive. Davis also gave the InfiLaw
grads a cold slap of reality before showing
them the courtroom exit.
Scolding the grads for their naivete,
Davis noted that they had admitted that
Florida Coastal’s admission standards
were among the lowest in the country – yet
somehow they still believed that the poorly
ranked school’s employment rates rivaled
those of the top law schools in the country.
“This would have been a red flag to a
reasonable consumer in the plaintiffs’ posi-
tion,” Davis wrote.
While InfiLaw prevailed in Florida, it is
still fighting a federal suit in Arizona from
a former employee who has accused the cor-
poration of paying some grads to prevent
them from taking the bar exam for fear that
they will fail.
In addition to Florida Coastal, InfiLaw
owns the Arizona Summit School of Law
and Charlotte School of Law. The corpora-
tion has been trying to add the Charleston
School of Law to that list for several years,
but has faced fierce opposition from stu-
dents, faculty and alumni.
Phillip Bantz
get handed over during discovery in their sep-
arate cases under wraps.
Zisk and Stuart want CSOL’s owners to lift
the veil on the private school’s financial state-
ments and prove that the institution really is
in dire straits. They accuse the owners, Robert
Carr and George Kosko, of exaggerating the
extent of the school’s money woes as a pretext
to fire them and five other tenured professors.
They say they were really given the ax be-
cause they spoke out against the owners’ ef-
forts to sell the school to InfiLaw, a Florida-
based corporation that owns three bottom-tier
for-profit law schools, including the Charlotte
School of Law.
The Sept. 25 confidentiality order applies
to any document produced during discovery
along with all deposition testimony and ex-
hibits. The party asserting that a document
is confidential only needs an attorney to cer-
tify that the information is personal, a trade
secret, confidential research, development or
commercial information.
In other words, the order casts a wider net
than the Gorton’s Fisherman.
Phillip Bantz
6 / NEWS
PARSONS / Court said prior caselaw clear on issue futility
C o nt inu e d f r o m 1 ► and ordered the defendant to pay
her medical expenses for those inju-
“mild paranasal sinus disease result- ries, primarily headaches.
ing from concussion,” records show. Parsons sought compensation for
About a week after the accident, her headaches months later, but the
in April 2010, the city filed a Form commission found that during the
60, admitting Wilkes’ entitlement to hearing she did not introduce evi-
compensation. dence “of causation between her in-
But in January 2011, both parties jury and her headache complaints”
requested the claim be assigned for and had failed to prove that contin-
hearing. According to the city, the ued treatment was necessary.
parties disagreed about “the total- The appeals court found, how-
ity of plaintiff’s complaints related ever, that according to state law,
to his compensable injury and need an employer must provide medical
for additional medical evaluations.” compensation for compensable inju-
Wilkes claimed he needed addition- ries, including “additional medical
al medical treatment, “specifically treatment … directly related to the
an evaluation by a neurosurgeon.” compensable injury,” as long as the
In September 2011, the matter change is reasonably necessary, to
came before Industrial Commission cure or lessen the period of disability.
Deputy Commissioner Mary Vilas, In this case, Wilkes argued that
who on Feb. 1, 2013, determined since Greenville filed a Form 60, he
that Wilkes’ low back and knee pain, should be afforded the presumption
anxiety, depression, sleep disorder, that his anxiety and depression were
ringing in the ears, headaches and directly related to his compensable
jaw pain were causally related to injury. The city, however, contend-
the compensable accident. ed that it admitted compensability
Vilas ordered the city to pay all of only regarding Wilkes’ injuries to
Wilkes’ current and future medical his ribs, neck, legs and left side, not
bills as they related to treatment of complaints of anxiety or depression.
his injuries. Davis cited 2005’s Perez v. Am.
Vilas also found that Wilkes had Airlines/AMR Corp. in holding that
demonstrated that while he was the appeals court has applied the
capable of some work (his physi- Parsons presumption not only in cas-
cian gave him the green light to es in which the commission has de-
perform sedentary jobs), it would termined compensability, but when
be futile to seek work due to his the employer makes an admission of
age, education level, impaired IQ, compensability by filing a Form 60.
work history of manual-labor jobs “[O]ur case law since Perez has
and physical restrictions stem- made clear that the Parsons pre-
ming from the accident. sumption applies even where the in-
But just two months later, the jury or symptoms for which addition-
full commission reversed Vilas’ de- al medical treatment is being sought
cision, finding that Wilkes failed is not the precise injury originally
to meet his burden of proving that deemed compensable,” Davis wrote.
his anxiety and depression resulted The plaintiff in Perez was a flight
from the accident and that he was attendant who injured her back
no longer entitled to total temporary while carrying luggage down a stair-
disability benefits because he “pre- way. Four years later, she sought
sented insufficient evidence that a additional medical coverage after
job search would be futile.” her lower back pain intensified.
Wilkes appealed, arguing that the The defendants argued that the
commission failed to apply the pre- injury was not responsible for her
sumption created in the 1997 Court herniated disc; that it was a differ-
of Appeals decision in Parsons v. ent injury than what was noted on
Pantry, Inc., a case in which a conve- her Form 60.
nience store clerk was injured by two The court noted, however, that
men who entered the store, struck the the “presumption of compensability
plaintiff in the head and shot her mul- applies to future symptoms alleg-
tiple times with a stun gun. edly related to the original compen-
Effie Parsons sought and was sable injury.”
awarded workers’ compensation The court could imagine, it wrote,
benefits. The Industrial Commis- a scenario in which an employee
sion determined that her injuries seeks compensation for an unrelat-
were work-related and compensable ed injury, but maintained that the
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burden, a slight one, of rebutting
the Parsons presumption rests with
the employer.
Greenville’s attorney, Matt Blake
of Brooks, Stevens & Pope in Raleigh,
said that overcoming that burden re-
quires a physician’s statement that
“it is more likely than not that the
symptom is unrelated; an ambivalent
or fifty-fifty statement is insufficient.”
This requires the commission
to depose a medical expert, Blake
said, which is not problematic if the
alleged injury falls within the ex-
pertise of the authorized treating
physician. But if not, many treating
physicians are unwilling to render
an opinion outside of their fields of
expertise. Employers then are faced
with paying another medical expert
to testify regarding causation.
Hunt said that in this case, Wil-
kes had the ability to provide for his
family taken away from him and
that his depression is absolutely
linked to his accident. Subsequent
injuries, she said, do happen.
When presented with a hypothet-
ical situation in which an employer
admits a compensable injury to an
employee’s left knee and a year later
the employee seeks treatment for a
right elbow injury not listed on the
Form 60, Hunt said she could see
that being a little more problematic
for the plaintiff.
“Unless it is because of the knee
that the person fell and … hurt
their elbow,” Hunt said. “That kind
of stuff happens all the time in
workers’ comp.”
Wilkes was evaluated by several
medical and psychological profes-
sionals, according to court records,
who offered varying opinions re-
garding the link between his acci-
dent and his psychological issues.
In denying Wilkes’ claim, the com-
mission ruled that he failed to meet
his burden of showing that his de-
pression and anxiety were the result
of the work-related accident.
The appeals court unanimously
held that based on prior decisions,
the commission’s failure to “apply
the rebuttable presumption under
Parsons” to Wilkes’ claims was a
clear misapplication of the law.
“Consequently, we remand this
matter to the Commission so that it
may apply the Parsons presumption
and then make a new determina-
tion,” Davis wrote.
The court also agreed with Wil-
kes’ argument that the commission
erred in terminating his temporary
total disability benefits.
Wilkes had received benefits for
about nine months when, in January
2011, the commission decided that
he had failed to show that he had en-
gaged in a reasonable job search and
“presented insufficient evidence that
a job search would be futile.”
In making its decision, court doc-
uments show, the commission con-
sidered testimony from the surgeon
who examined Wilkes and released
him to do sedentary work, as well as
Wilkes’ “personal characteristics,”
including his age, education level
and history of manual labor.
This evidence, Wilkes argued and
the court agreed, met his original
burden of showing that he was inca-
pable of earning his usual wage be-
cause his preexisting characteristics
made it futile for him to seek seden-
tary employment.
In 1986, the North Carolina Su-
preme Court held in Peoples v. Cone
Mills Corp. that if preexisting condi-
tions incapacitate a particular em-
ployee to a greater extent than they
would another employee, “the em-
ployee must be compensated for the
actual incapacity he or she suffers,
and not for the degree of disability
which would be suffered by someone
younger or who possesses superior
education or work experience.”
The appeals court also cited its
own decision in Johnson v. City
of Winston-Salem, a 2005 case in
which it held that a 38-year-old cus-
todian with bilateral carpal tunnel
syndrome, while able to perform
some work, faced a futile job search
because of his preexisting personal
characteristics.
Davis wrote that Greenville of-
fered the appeals court’s April deci-
sion in Fields in arguing this issue.
In Fields, a separate COA panel re-
versed the Industrial Commission,
holding that the mechanic plaintiff
failed to demonstrate that engag-
ing in a job search would be futile
because he “failed to provide com-
petent evidence through expert tes-
timony of his inability to find any
other work as a result of his work-
related injury.”
The Wilkes panel, however,
opined that the fact patterns differ in
Fields and the instant case—specifi-
cally that Wilkes lacks transferable
skills and that he offered evidence
from medical and psychological pro-
fessionals regarding his intellectual
impairments. Further, Davis wrote,
“[W]e take this opportunity to note
that our prior caselaw has made
clear that ‘a plaintiff is not required
to present medical evidence or the
testimony of a vocational expert on
the issue of futility.’”
This ruling echoed the sentiment
of Fields’ attorney, William Senter
of Fayetteville, who said after the
Fields ruling that he believed the de-
cision to be “contrary to prior law.”
“That’s a new burden of proof that
no plaintiffs’ lawyer in the state of
North Carolina knew we had, in my
opinion,” Senter said then.
In an email to Lawyers Weekly
after the Wilkes decision, Senter
wrote, “Suffice it to say that we are
delighted that the C of A corrected
its mistake in Fields and acknowl-
edged the same. However the new
decision in the Greenville case
comes too late to help my client,
which is unfortunate.”
Hunt doesn’t normally handle ap-
peals but said that she felt here that
her client was put in an “absolutely
horrible” position and that the com-
mission misapplied the law.
“What has been made clear with
the Wilkes case is it’s instructive
not only for the plaintiff but also for
the defendant, the defense counsel
and instructive for the commission,”
Hunt said.
Blake said he is disappointed
with the decision, more concerned
with the scope of the presumption
than its existence.
“The Wilkes decision raises con-
cern because it holds there is no lim-
it to the presumption arising from a
Form 60,” he wrote in an email.
Blake said the city has “autho-
rized further efforts to seek relief
from this decision.
The 22-page decision is Wilkes v.
City of Greenville (Lawyers Weekly
No. 15-07-0947). The full text of the
opinion is available online at nclaw-
yersweekly.com.
Follow Heath Hamacher on Twit-
ter @NCLWHamacher
N O R T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 19, 2015
Strategies needed to survive in new legal landscape
■■ DOUGLAS LEVY
Dolan Media Newswires
DETROIT — Bar associations
across America are waving their
fists at online legal services such as
LegalZoom and Avvo, saying that
those businesses are delivering un-
authorized practice of law services.
But the State Bar of Michigan’s
immediate past president has some
strong advice: Get used to these ser-
vices being here and get to work on
making your practice a better one.
“This is a challenge to tradition-
al legal services like nothing we’ve
ever seen before,” said Thomas C.
Rombach, who last week finished
his term as the 80th SBM president.
“As opposed to many challenges
we’ve had in the past, I don’t believe
we’re going to regulate our way out
of this one. We’re just going to have
to cope and adapt to this new legal
landscape.”
More than 50 percent of legal
services are delivered online, ac-
cording to the National Center for
State Courts.
Rombach, a New Baltimore prac-
titioner, said the public is flocking to
online legal outlets because of inef-
ficiencies in the traditional legal de-
livery model and the resulting gaps
in service.
He has delivered those senti-
ments as a representative of the Na-
tional Conference of Bar Presidents
at legal panel discussions — where
LegalZoom and Avvo representa-
tives have been invited to offer their
perspectives.
And Rombach has offered solu-
tions, including the unbundling of
legal services, discovering and in-
vesting in new methods of efficiency,
understanding an untapped mar-
ket, and marketing the fact that a
lawyer has not just experience but
accountability.
“It means we’re going to have to
think differently,” he said. “We not
only need a different model of de-
livering legal services to a degree,
but we also need a different para-
digm as bar leaders and as a state
bar and local bars in order to help
our membership best deliver legal
services to the public.”
SUPSENSION / Informed consent lacking when conflict not identified
C o nt inu e d f r o m 3 ►
A few weeks before those transac-
tions, Merrell had transferred the
Gordons’ $1.5 million to a CD account
at Bank of America, listing Lam’s ad-
dress and the tax identification num-
ber of Lam’s LLC as the ones connect-
ed to the account and failing to ensure
that there was a signature card that
would limit signatory authority on
the account to Merrell. Lam withdrew
the funds for his own benefit without
the Gordons’ knowledge or permis-
sion, and Merrell failed to discover
the withdrawals for several months.
The Disciplinary Hearing Commis-
sion of the North Carolina State Bar
found that Merrell had failed to safe-
guard entrusted funds and engaged
in a conflict of interest and suspended
him from the practice of law for two
years. Merrell appealed, arguing that
the DHC based its conclusions on con-
duct outside of the allegations in its
Going a la carte
The changing legal marketplace
has been on Rombach’s mind during
his SBM presidency. In March, he ap-
pointed the 36 members of the 21st
Century Legal Practice Task Force, a
group put together to help design the
legal services system of the future.
The group’s three committees have
been looking at the access and afford-
ability of legal services; how to build
the 21st-century practice; and how to
modernize the regulatory machine to
make delivering legal services better.
The task force will meet Nov. 12 to
receive preliminary reports from the
three committees, with a final report
expected early next year.
Rombach said one area the task
force would seriously consider is un-
bundled legal services, or providing
legal services a la carte, which Michi-
gan attorneys are not currently per-
mitted to do.
With unbundling, the lawyer ex-
plains all tasks associated with the
client’s legal matter. The client can
then engage the lawyer’s services for
discrete portions of the case, such as
conducting legal research, document
review, drafting contracts and agree-
ments, and organizing discovery ma-
terials or preparing exhibits.
By unbundling, Rombach said, the
attorney can focus on the bigger, more
important matters.
“As lawyers we like to take on
complex challenges. The areas where
we’re most effective is problem solv-
ing; it’s not filling in blanks on an on-
line form,” he said.
“That’s not something lawyers
have typically done anymore, and if
it can be done more efficiently else-
where, then the lawyers’ time is best
spent focusing on solving those com-
plex legal issues that the public them-
selves aren’t able to do.”
Redefining ‘traditional’ lawyer
What the public can do, however,
is walk away — and quickly — from
a lawyer if the immediacy factor is
not met.
“The public is demanding ser-
vices in real time. If you’re not able
to return a phone call immediately
or you’re not available in your office,
they may seek out alternative sources
of legal information,” said Rombach,
complaint, thereby denying him his
right to due process. Specifically, Mer-
rell argued that the complaint alleged
that Merrell had represented Lam
at closing when Merrell had actually
represented Deepwater, and that this
distinction was meaningful.
The Court of Appeals, however,
disagreed.
“We do not agree that the differ-
ence between Lam and Deepwater
deprived defendant of notice of the ba-
sis for the alleged conflict of interest,”
Judge Martha Geer wrote for a unani-
mous court. “The complaint makes it
clear that the DHC considered Lam
and Deepwater, for all intents and
purposes, as one and the same.”
Merrell also challenged the find-
ing that he had engaged in a conflict
of interest because the parties gave
written consent to the dual repre-
sentation. The court again disagreed,
finding that acknowledging that a
potential conflict exists, without iden-
who is only the third sole practitioner
in SBM history ever to have served as
its president.
He added, “Michigan has suffered
so greatly during our depression/re-
cession, so people are looking for the
most affordable services that can be
provided. That has put the squeeze on
the traditional model lawyer, where
45 to 55 percent of a lawyer’s gross
income goes to overhead.”
At least one law school is help-
ing shape tomorrow’s “traditional
model lawyer.”
Daniel W. Linna Jr., assistant
dean for career development at Michi-
gan State University College of Law,
is director of LegalRnD — The Center
for Legal Services Innovation.
The center’s curriculum is built
around process improvement and
project management, day-to-day ana-
lytics and technology to improve legal
service delivery.
“We’re training 21st-century law-
yers,” Linna said. “And a big part of it
for us is … disaggregating what we do
as lawyers. We’ve treated the practice
of law too much like an art and doing
things like we did 150 years ago.
“We have to ask ourselves as law-
yers, where do I really add value as a
lawyer? Where can I create systems
that help me do things more efficient-
ly and improve the quality of what I
do in other areas where I don’t nec-
essarily add lots of value? How can I
create better intake systems to cap-
ture what I need to generate plead-
ings and solve problems?”
Satisfaction guaranteed
Linna said huge, unmet legal
needs exist, such as corporations
that have complex matters and seek
lawyers who can do high-quality
work efficiently.
But he added that the markets
most in need of legal attention are
the indigent and the middle class —
80 percent and 50 percent of which,
respectively, don’t get affordable ac-
cess to legal services.
“It’s simply unacceptable,” Linna
said. “We call ourselves a rule-of-
law nation, but how long can this
continue to go on when people feel
disconnected from the legal system
and cannot get representation?”
Rombach added, “There are new
tifying the potential conflict, does not
provide the parties with informed
consent. The court noted a recent For-
mal Ethics Opinion which held that in
most instances, common representa-
tion in a commercial real estate clos-
ing is a conflict that cannot be signed
away by the parties’ consent.
In this case, the court said, Merrell
had obtained information through his
representation of Lam and Deepwa-
ter that would have been material to
the Gordons in determining whether
to go forward with the closing, and
that the defendant failed to disclose
that information to the Gordons be-
fore representing both them and Lam
in the closing.
“There can be no question that a
conflict of interest arises when an at-
torney obtains information through
his representation of one party that
is material to the attorney’s repre-
sentation of a second party, and the
attorney cannot or does not disclose
NEWS / 7
concerns, but there are also new
markets. When you look at the
small business sector and the mid-
dle class, a market which we’ve had
difficulty reaching, it’s a $100 billion
market, according to [LegalZoom
CEO] John Suh.”
Yet reaching that market re-
quires marketing.
Getting the public to realize that
a licensed lawyer, who follows a
code of professional responsibility
and accountable for violating it, is
the best source of legal information
and services, Rombach said.
“Essentially, the lawyers can give
you something that [comes from]
years of experience and is a tried-
and-true product.
“The online providers don’t have
that same level of accountability.
They’re able to provide real-time so-
lutions at lower price points, but they
don’t have any professional guaran-
tee as to the usefulness, because they
have disclaimers that they’re not
providing legal services. But a law-
yer has to stand behind their work.”
Rombach said that one method of
positive marketing is the SBM mem-
ber directory, which now has peer-
review capability so that the public
— as well as fellow SBM members
— can be better served when seek-
ing legal representation.
But if attorneys can’t accept the
new legal marketplace and then
take action to work within it, all
that marketing will be for naught.
“LegalZoom and Avvo are reali-
ties, and the competition is going to
become more, not less,” Linna said.
“We can’t continue to create barriers
to competition to protect ourselves.
If we don’t adapt, we’re going to be
in the dustbin with the dinosaurs.
“If you can figure out ways to im-
prove processes, manage projects,
use data and then use technology,
you can deliver services in a way
to serve people’s needs and earn a
living doing it,” he added. “It’s not
going to be easy, but there’s a need.
The longer it takes us as lawyers
now to serve people, the more we’ll
see people use technology to solve
their problems.”
Technology, that is, with some-
one sans an attorney’s license run-
ning it.
that information to the second party,”
Geer wrote. “[Merrell] failed fully to
disclose and explain the nature of the
conflict to the respective purchasers
and lenders and made no effort to ob-
tain their express consent to his mul-
tiple representation.”
Merrell, who was previously the
attorney for the town of Kill Devil
Hills, is scheduled to appear before
the DHC again in December over al-
legations related to a long-running
dispute between the town’s chief of
police and Dare County Superior
Court Judge Jerry Tillett. The alle-
gations accuse Merrell of revealing
confidential information without the
town’s consent.
The 29-page decision is North
Carolina State Bar v. Merrell (Law-
yers Weekly No. 15-07-0946). The
full text of the opinion is available
online at nclawyersweekly.com.
Follow David Donovan on Twitter
@NCLWDonovan
8 / NEWS N O R T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 19, 2015

VOICES / Answers to common client estate questions

C o nt inu e d f r o m 4 ►
sions of your plan after your death.
Some like that flexibility; some do
not. Finally, the commonwealth, by
statute, has granted broad powers
to your fiduciaries and beneficiaries
to change the terms of your trust by
settlement, either outside of court
or by court approval. If you wish to
guard against that, you might con-
sider a forfeiture clause for those
who attempt to change your plan.
7. What if I move? Will my docu-
ments be valid in another state?
Another country?
As a general rule, documents
that are valid and properly ex-
ecuted in one state will be valid
in another. Issues arise, however,
when real estate is involved, in
which case local law often applies.
For example, this can lead to an
attorney-in-fact being unable to
transfer real estate if the power of
attorney document does not comply
with local law. If you own real es-
tate in another state, that state’s
law should be checked. And if you
move, you should always have lo-
cal counsel review your documents.
Requirements for self-proving wills
can vary from state to state. Fur-
ther, when assets are held in an-
other country, a second will is often
recommended that specifically (and
only) deals with those assets.
6. Is the cost of these documents
tax deductible?
The IRS and the courts have
ruled that the portion of your es-
tate planning fees that relate to tax
advice or tax planning will be de-
ductible in the year paid under tax
code Section 212(3). So most estate
planning firms will include on their
bill a statement that says, “We es-
timate that ____% of this fee is at-
tributable to tax planning,” and ad-
vise the client to give a copy of the
bill to their accountant.
5. Will my trust protect me against
a lawsuit?
No. In most basic estate plans,
the trust is a revocable trust,
meaning you can terminate it at
any time and recover your funds or
the trust assets. Under the laws of
most states, if you have any access
to the trust assets, your creditors
will have the same access.
4. Will this trust protect my mon-
ey if I enter a nursing home?
This is one of the biggest sources
of misunderstanding of trusts. It
is often thought that assets in an
estate planning trust will be “pro-
tected” from nursing home costs.
Not so. The assets in a revocable
trust established by that person
are fully accessible to the nursing
home. There are trusts that will
“protect” assets in such a case, but
under current law the trust must
be irrevocable, must confine the
creator’s access to the trust income
(and even that can be problematic),
and the transfers to the trust must
be at least five years old.
3. If you arrange my estate to
avoid probate, won’t that also
avoid taxes?
This is also an extremely com-
mon misunderstanding: that avoid-
ing probate means avoiding estate
taxes. If it were only that easy.
Simply stated, estate taxation is
based on control, ownership and
enjoyment of assets, not on probate.
2. How much are you going to
charge for handling my estate?
Just because we have assisted
in the execution of your estate
plan does not mean your family is
required to use our firm to handle
the estate. When that time comes,
the persons you have put in charge
of your estate will decide whom to
hire to assist them, and fees will be
one part of that discussion. At one
time, lawyers would use a “mini-
mum fee schedule” to determine
their fees for settling an estate.
The schedule called for a percent-
age of the estate assets and was
seen by some as arbitrary (and
later declared to be illegal). Now,
most lawyers and law firms simply
charge on an hourly basis, divid-
ing the time as appropriate among
paralegals, associates and part-
ners for the best and fairest result.
A signed engagement letter with
the selected firm should set out the
fee arrangements in detail.
1. What steps do we (my spouse,
family) take when catastrophe
strikes?
Although the death of a close
family member is often accompa-
nied by a feeling of panic and “what
do I do now,” from a legal (estate
settlement) standpoint, there are
very few matters that require truly
immediate attention, absent buri-
al arrangements — and hopefully
the decedent had communicated
her wishes to family members dur-
ing her lifetime. For sure, a line of
communication with estate coun-
sel should be established within a
matter of several days or a week,
mostly to have a resource if ques-
tions arise. But in the typical case,
it is a matter of confirming a finan-
cial resource for day to day expens-
es, then gathering information to
review with counsel to begin the
estate settlement process and to
sign documents transferring the
control of the assets to successor
trustees or filing a will with the
court to have a personal represen-
tative appointed.
Alexander A. Bove Jr. and Melis-
sa Langa are shareholders at Bove
& Langa in Boston, where they con-
centrate in domestic and interna-
tional trust and estate law.

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 19, 2015
NEWS / 9

COA establishes $100 as adequate consideration, OKs parol evidence

■ HEATH HAMACHER
heath.hamacher@nclawyersweekly.com

According to an Oct. 6 North Caro-

lina Court of Appeals ruling, $100 is
adequate consideration for a noncom-
pete agreement and parol evidence is
permissible if essential terms are ab-
sent from the written evidence.
In Employment Staffing Group, Inc.
v. Little, defendant Monica Little had
been working for staffing agency ESG
for nearly 13 years when she signed
an employment agreement, complete
with noncompete provisions, in June
2014. She was paid $100 to agree to,
among other terms, a two-year limi-
tation on soliciting ESG’s customers
should she leave the agency.
Little’s employment ended with
ESG on July 21, 2014, and, accord-
ing to ESG, she began soliciting their
clients for her new employer, Atlantic
Staffing Consultants. In November,
ESG filed suit alleging breach of the
agreement, conversion, tortious in- complete contract.” agreements under similar circum- and … she wouldn’t have been bound
terference with contractual relations, Inman cited language from stances in the absence of fraud.” by the noncompete.”
misappropriation of trade secrets and Phelps-Dixon Builders, L.L.C. v. Julian Wright, an employment at- Little’s attorney, Nelson Harris
unfair and deceptive trade practices. Amerimann Partners stating, “The torney with Robinson, Bradshaw & of Harris & Hilton in Raleigh,
Little argued that the employment parol evidence rule excludes prior or Hinson in Charlotte, was not involved did not return a message seeking
agreement was unenforceable due to contemporaneous oral agreements in this case but was familiar with the comment.
lack of consideration, one of six re- which are inconsistent with a writ- ruling. He said he was surprised that An attorney for ESG, Jason Evans
quirements for a valid noncompete ten contract if the written contract the appeals court affirmed the ruling of McGuireWoods in Charlotte, was
agreement. According to court docu- contains the complete agreement of given the consideration amount and unable to comment by press time.
ments, it is undisputed that Little the parties,” and the North Carolina pressure Little claimed to be under. The 11-page decision is Employ-
and ESG discussed consideration and Supreme Court clarification that the “But from an employer’s perspec- ment Staffing Group, Inc. v. Little
records show that $100 was directly rule applies where all the terms of tive, that’s what you want,” Wright (Lawyers Weekly No. 15-07-0938).
deposited into Little’s bank account a contract are integrated in writing said. “That is freedom of contract. If The full text of the opinion is avail-
on June 17, 2014. or where the writing supersedes all she didn’t want to sign it, she should’ve able online at nclawyersweekly.com.
But in appealing the Cleveland other agreements. walked away and said, ‘Sorry, I’m not Follow Heath Hamacher on Twit-
County Superior Court ruling grant- “The rule is otherwise where it going to sign it,’ just walked away, ter @NCLWHamacher
ing ESG a preliminary injunction, is shown that the writing is not a
Little claimed that the consideration full integration of the terms of the
was illusory since it was not men- contract,” the Supreme Court held
tioned in the written agreement, and in Craig v. Kessing. “The terms not
inadequate because it was done un- included in the writing may then be
der “pressure and duress” as a condi- shown by parol.”
tion of her continued employment. In 2009’s Hejl v. Hood, Hargett &
Little also argued that $100 is in- Associates, Inc., the Court of Appeals
adequate. The lowest amount estab- held that $500 was adequate consid-
lished as adequate by prior case law eration for a noncompete agreement,
was $500. though it noted that courts didn’t
In the appeals court’s unanimous generally evaluate the adequacy of
decision, Judge Lucy Inman noted consideration in these types of agree-
that although the consideration was ments, but rather “consider[ed] the
not mentioned in writing, there was parties to be the judges of the adequa-
a “separate oral agreement” between cy of the consideration.”
Little and ESG that she would be Conceding that point, Little argued
paid $100 for her signature. that since the agreement was not con-
Little relied, the court wrote, on tracted “at arm’s length,” the court is
the agreement’s merger clause that authorized to determine whether the
“[t]his agreement embodies the en- consideration is adequate.
tire agreement of the parties relat- The court, however, found that Lit-
ing to the subject matter in this tle’s perceived threat to her employ-
Agreement” in claiming that the ment wasn’t enough to overturn the
court is prohibited from consider- trial court.
ing a separate oral agreement in de- “While it may be true that Defen-
termining whether the noncompete dant felt pressure to sign the non-
agreement is enforceable. compete covenant in order to contin-
The court found that while merger ue her employment,” Inman wrote,
clauses are intended to “effectuate the “this Court has enforced non-compete
policies of the Parol Evi-
dence Rule … barring
the admission of prior
and contemporaneous
negotiations on terms
inconsistent with the
terms of the writing,”
and that North Carolina
recognizes and upholds
merger clauses, parol
evidence here regard-
ing the consideration is
necessary to establish a
necessary element of a
valid covenant and not
inconsistent with the
agreement.
“In other words,”
Inman wrote, “the evi-
dence is necessary to
show the existence of a
10 / NEWS N O R T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 19, 2015

Daughtry to retire from legislature

Lawyer, state representative leaving after 28 years
■■ DAVID DONOVAN
david.donovan@nclawyersweekly.com
Longtime North Carolina state
Rep. Leo Daughtry, R-Johnston,
chairman of one of the House’s
judiciary committees and a vocal
advocate for the state’s judiciary,
announced Oct. 13 that he will not
seek re-election in 2016 after 28
years in the General Assembly.
Daughtry served as chairman
of the House’s Judiciary Commit-
tee from 2011, when Republicans
regained control of the chamber,
through 2014. This session, he
has been chairman of both the Ju-
diciary I Committee, one of four
judiciary committees created for
this term, and the appropriations
committee for justice and public
safety. Previously, he had served
as both minority leader and ma-
jority leader.
“I’ve been there a long time
and I’ve reached the age of almost
75, and at some point, you need
to stop,” Daugh-
try told Lawyers
Weekly in an in-
terview. “I thought
maybe this would
be the time. I’ve
got good health,
and I’ve got my
Leo Daughtry wits about me,
and I thought this
would be an ideal time to consider
doing something else.”
When asked about that “some-
thing else,” Daughtry, an attorney
from Smithfield, said, “I can come
back and practice law, I can trav-
el, I can see what comes along.
You never know.”
Daughtry is not the only in-
fluential attorney who has an-
nounced plans to retire from the
legislature. House Speaker Pro
Tem Paul “Skip” Stam, an outspo-
ken Republican from Apex, has
said this will be his eighth and
final term in the House. Rep. Jac-
queline Schaffer, R-Mecklenburg,
chair of the Judiciary IV Commit-
tee, announced that she will not
seek a third term.
Daughtry said that he was
hopeful that the retirements
would not reduce the clout of at-
torneys in the chamber.
“There are other good lawyers
there, young lawyers, that I think
will fill the void,” Daughtry said.
“I know we’re going to miss Skip.
He and I were careful to review
bills and make sure they didn’t
do any harm to our branch of
government.”
Reflecting on what the Legisla-
ture has accomplished in terms of
strengthening the state’s judicia-
ry, Daughtry praised the most re-
cent budget that increased fund-
ing for the judicial branch and
said that the state has “started
getting back on our feet as a ju-
diciary” after the austere cuts
imposed during the recession. He
also noted a recent change to the
law that will institute retention
elections for the state’s Supreme
Court justices in place of the cur-
rent general elections.
“I hope that’s at least a step
in the right direction for having
judges without their having to go
through awful partisan politics,”
Daughtry said. “In my view, it’s
not healthy for the judiciary to
have political races that they have
to run and have to raise a lot of
money, and I think that this is a
good step.”
In terms of the work that re-
mains to be done in funding the
judiciary, Daughtry noted that
the branch is still working on im-
proving its information technolo-
gy to meet 21st century standards
and said he hoped future budgets
would also include pay raises for
the state’s judges in order to en-
sure that highly qualified candi-
dates could continue to be attract-
ed to the positions.
Follow David Donovan on Twit-
ter @NCLWDonovan

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 19, 2015
MOST
IMPORTANT
OPINIONS
Admiralty
No Salvage Award for Lawyer
Recovery Limited Partnership
v. The Wrecked & Abandoned
Vessel S.S. Central America (Law-
yers Weekly No. 15-01-0648, 23 pp.)
(Niemeyer, J.) No. 14-1950, June 22,
2015; USDC at Norfolk, Va. (Smith,
J.) 4th Cir.
Holding: A former lawyer for Co-
lumbus America Discovery Group,
which was involved in a salvage op-
eration for the gold-laden wreck of
the S.S. Central America off the coast
of South Carolina, cannot assert a
valid salvage claim based on his at-
torney’s lien under Ohio law; the 4th
Circuit affirms the trial court holding
that the lawyer had an ethical obliga-
tion to turn over to his former client
the materials on which he based his
claim.
Arbitration
Distributorship & Nondisclosure
Contracts – Different Claims
Neusoft Medical Systems, USA,
Inc. v. Neuisys, LLC (Lawyers
Weekly No. 15-07-0666, 19 pp.) (Chris
Dillon, J.) Appealed from Guilford
County Superior Court (Susan Bray,
J.) N.C. App.
Holding: Although there is an ar-
bitration clause in the parties’ 2003
distribution contract, since the claims
at issue arise from a 2009 nondisclo-
sure agreement – which did not in-
clude an arbitration clause – these
claims are not subject to arbitration.
We affirm the trial court’s denial of
the appellants’ motions to stay and to
compel arbitration.
Attorneys
Discipline – Stayed Suspension – Conflict
of Interest – Real Property – Trust Fund
North Carolina State Bar v.
Merrell (Lawyers Weekly No. 15-07-
0946, 29 pp.) (Martha Geer, J.) Ap-
pealed from the Disciplinary Hearing
Commission. N.C. App.
Holding: Even though all mem-
bers of a limited liability company
signed an operating agreement which
said that “the parties have been ad-
vised that a potential conflict exists
among their individual interests,”
their acknowledgment of a potential
conflict – without identification of the
potential conflict – did not constitute
informed consent for the defendant-
attorney to represent both parties at
a closing in which an LLC member
received a profit of nearly $1 million
at the expense of the LLC.
We affirm the Disciplinary Hear-
ing Commission’s (DHC’s) stayed
two-year suspension of defendant’s
law license.
Attorneys
Fee Award – Rule 11 Sanction – Fail-
ure to Move to Dismiss
Southeast Air Charter, Inc. v.
Stroud (Lawyers Weekly No. 15-15-
0802, 12 pp.) (James Gale, C.J.) 2015
NCBC 79
Holding: The court limits an
award of attorneys’ fees under N.C. R.
Civ. P. 11 because a defendant failed
to move to dismiss claims that were
obviously unfounded.
Upon defendants’ request for
$35,887.01 in attorneys’ fees, the
court awards $14,680.70. The award
is imposed against plaintiff itself and
not its counsel. Costs of $5,182.83 are
also taxed against plaintiff.
Attorneys
Fees – Association Agreement – Pre-
Settlement Firing – Contingent Fee
– Medical Malpractice
Newell v. James E. Rogers, P.A.
(Lawyers Weekly No. 15-16-0825, 18
pp.) (Linda McGee, C.J.) Appealed
from Northampton County Superior
Court (Wayland Sermons Jr., J.) N.C.
App. Unpub.
Holding: In the underlying multi-
defendant medical malpractice ac-
tion, the defendant-attorney, a sole
practitioner, convinced the client to
associate another law firm (plaintiff);
after settling with all but two of the
healthcare providers, the client fired
the defendant-attorney. Based on the
trial court’s timeline and recitation of
all the work put in by the defendant-
THIRD QUARTER/2015
Opinion Digests are compiled by opinions
editor Teresa Bruno, who is a graduate of
the University of North Carolina School of
Law. She also holds a master’s degree in
library science from North Carolina Central
University. She can be reached at
teresa.bruno@sclawyersweekly.com
attorney before he was fired, the trial
court did not err when it awarded the
defendant-attorney half of the contin-
gency fee that was earned when the
plaintiff-law firm settled the claims
against the two remaining healthcare
providers.
The trial court’s declaratory judg-
ment is affirmed.
Attorneys
Motion to Disqualify – College Coun-
sel – Former President
Spring v. Board of Trustees
(Lawyers Weekly No. 15-02-0934,
5 pp.) (Terrence Boyle, J.) 7:15-cv-
00084; E.D.N.C.
Holding: When plaintiff was
president of Cape Fear Community
College, he frequently consulted
with, received advice from, and pro-
vided confidential information to
Ward and Smith, P.A., which was
acting in its capacity as the college’s
attorney. Since James Norment, the
Ward and Smith attorney assigned
to handle the college’s legal matters,
did not handle personal legal issues
for college personnel, did not discuss
plaintiff’s employment situation with
him before defendant gave plaintiff a
chance to resign, and advised plaintiff
to consult with his personal counsel
concerning plaintiff’s severance pack-
age, plaintiff cannot demonstrate that
he was in an attorney-client relation-
ship with Ward and Smith.
The court denies plaintiff’s motion
to disqualify Ward and Smith as de-
fense counsel.
Bankruptcy
Discharge Revocation – Time Limit –
Non-Jurisdictional – Fraud
Johnson v. Meabon (Lawyers
Weekly No. 15-05-0842, 13 pp.) (J.
Craig Whitley, J.) 12-03218; W.B.N.C.
Holding: Although the trustee
waited for more than a year to file his
complaint to revoke the debtor’s dis-
charge, since the debtor stood silent
through trial and appeal, he waived
his right to raise this issue.
The court denies the debtor’s
prayer for relief under Fed. R. Civ. P.
60(b)(4).
NEWS / 11
Civil Practice
Animal Cruelty – State & Federal
Statutes – No Preemption – First
Impression
Salzer v. King Kong Zoo (Law-
yers Weekly No. 15-07-0668, 8 pp.)
(Robert Hunter Jr., J.) Appealed
from Cherokee County District Court
(Donna Forga, J.) N.C. App.
Holding: In a case of first impres-
sion, the court decides that the federal
Animal Welfare Act does not preempt
a state-court animal cruelty action
under G.S. § 19A-1.
We reverse the trial court’s grant
of defendant’s motion to dismiss for
lack of subject matter jurisdiction.
Civil Practice
Class Action – Attorneys’ Fees – Set-
tlement Agreement – Appeals – Busi-
ness Court
Ehrenhaus v. Baker (Lawyers
Weekly No. 15-07-0884, 26 pp.) (Mark
Davis, J.) Appealed from Mecklen-
burg County Superior Court (Calvin
Murphy & James Gale, JJ.) N.C. App.
Holding: A party to a class action
may agree to pay the other party’s
attorneys’ fees in a negotiated settle-
ment that is – like all other aspects
of the settlement – subject to the trial
court’s approval in a fairness hearing.
We affirm the trial court’s award of
$1,056,067.57 in attorneys’ fees and
expenses to out-of-state class counsel
Wolf Popper LLP. We dismiss the ap-
peal of local class counsel Greg Jones
& Associates, P.A.
Civil Practice
Class Action – Certification – TCPA –
Do Not Call Registry – Agency
Krakauer v. Dish Network
L.L.C. (Lawyers Weekly No. 15-
03-0907, 34 pp.) (Catherine Ea-
gles, J.) 1:14-cv-00333; M.D.N.C.
Holding: Defendant used a
telemarketer to sell defendant’s
services. The question as to wheth-
er the telemarketer was acting
with defendant’s actual authority
is common to all class members
12 / OPINION DIGESTS
(people on do-not-call registries).
Although defendant is likely to win
on the issues of apparent authority
and ratification, if plaintiff and the
class prevail on an actual author-
ity theory, it will not be necessary
to reach the questions of apparent
authority and ratification.
The court grants plaintiff’s mo-
tion to certify two classes: (1) per-
sons on the national do-not-call
registry (NDNC list) who received
two or more calls from defen-
dant or its telemarketer within a
12-month period and (2) persons on
defendant’s and its telemarketer’s
internal do-not-call lists (IDNC
list) who received such calls.
Civil Practice
Collateral Estoppel – Motion to
Dismiss Standards – Federal Lawsuit
– Probable Cause – 4th Amendment –
Malicious Prosecution
Fox v. Johnson (Lawyers
Weekly No. 15-07-0939, 22 pp.)
(Linda Stephens, J.) Appealed from
Guilford County Superior Court
(Ronald Spivey, J.) N.C. App.
Holding: Since the standard of
review under N.C. R. Civ. P. 12(b)
(6) differs from that under Fed. R.
Civ. P. 12(b)(6), a federal court’s
dismissal of plaintiffs’ Fourth
Amendment claim does not mean
plaintiffs are collaterally estopped
from bringing suit in state court for
malicious prosecution, although
both claims have lack of probable
cause as an element.
We affirm the trial court’s denial
of defendants’ motion to dismiss.
Civil Practice
Default Judgment – Service of Pro-
cess – Corporate – Secretary of State
– Registered Office
Builders Mutual Insurance Co.
v. Doug Besaw Enterprises (Law-
yers Weekly No. 15-07-0721, 11 pp.)
(Wanda Bryant, J.) Appealed from
Wake County District Court (Debra
Sasser, J.) N.C. App.
Holding: In serving process on
defendant, the Secretary of State
skipped the G.S. § 55D-33 step of
mailing the summons to defen-
dant’s principal office and instead
immediately mailed the summons
to defendant’s registered office.
This does not entitle defendant to
have the default judgment against
it set aside. Defendant’s failure to
provide the Secretary of State with
a valid registered address was not
excusable neglect.
We affirm the trial court’s denial
of defendant’s motion to set aside
the entry of default and default
judgment.
Civil Practice
Discovery – Intellectual Property –
Trade Secrets – Non-Party Documents
– Party Employee – First Impression
SciGrip, Inc. v. Osae (Lawyers
Weekly No. 15-15-0919, 16 pp.)
(Louis Bledsoe III, J.) 2015 NCBC
86
Holding: The court declines to
order the production of documents
from defendant’s work laptop,
which belongs to defendant’s non-
party employer.
The parties’ discovery motions
are denied without prejudice.
Civil Practice
Pleadings – Rule 41(a) – Tort/Neg-
ligence – Wrongful Death – Carbon
Monoxide
Murphy v. Hinton (Lawyers
Weekly No. 15-07-0665, 11 pp.) (Rich-
ard Dietz, J.) Appealed from Union
County Superior Court (W. David
Lee, J.) N.C. App.
Holding: Since plaintiff’s original
complaint failed to allege that defen-
dant Heritage Propane Express vio-
lated any duty to plaintiff’s decedent,
plaintiff was not entitled to dismiss her
complaint and then take advantage of
the one-year statute of limitations ex-
tension of N.C. R. Civ. P. 41(a)(1).
We affirm the trial court’s grant of
Heritage Propane’s motion to dismiss
based on the statute of limitations.
Civil Practice
Subject Matter Jurisdiction – Indian
Tribe Member – Contract – Personal
Jurisdiction – Usury – Preliminary
Injunction
State ex rel. Cooper v. West-
ern Sky Financial, LLC (Lawyers
Weekly No. 15-15-0855, 38 pp.) (Greg-
ory McGuire, J.) 2015 NCBC 84
Holding: Defendant Western Sky
Financial, LLC’s loan contract is bind-
ing as soon as the borrower signs it, so
when a borrower signs the contract in
North Carolina, that contract is made
in North Carolina.
Defendant’s motion to dismiss is
granted as to defendant Reddam and
as to usury claims based on notes
signed and unlawful interest collected
on or before Dec. 16, 2011. Otherwise
the motion to dismiss is denied. Plain-
tiff’s motion for a preliminary injunc-
tion is granted insofar as it seeks to
enjoin defendants from offering or
entering into consumer loan contracts
with North Carolina borrowers, col-
lecting payments from North Caroli-
na consumers, transferring any loans
with North Carolina consumers, and
destroying evidence relating to loans
made to North Carolina consumers.
Civil Practice
Subject Matter Jurisdiction – Stand-
ing – Attorneys – Legal Malpractice
Claim – Real Property – Mortgages
Ocwen Loan Servicing, LLC v.
Foodman Hunter & Karres, PLLC
(Lawyers Weekly No. 15-04-0877, 27
pp.) (David Keesler, USMJ) 3:13-cv-
00697; W.D.N.C.
Holding: The North Carolina de-
fendants (an attorney and law firm)
deny that they were responsible for
the 1999 closing on a North Myrtle
Beach, South Carolina, property.
Even if they were, plaintiff has not
shown that it has standing to bring
a legal malpractice action against de-
fendants since, among other things,
plaintiff obtained the rights to service
a loan purportedly secured by a mort-
gage that it knew was never recorded.
Defendants’ motion to dismiss for
lack of subject matter jurisdiction is
granted.
Civil Practice
Summary Judgment – Successive Mo-
tions – Different Judges – Lack of Entry
Branch Banking & Trust Co.
v. Simpson (Lawyers Weekly No.
N O R T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 19, 2015
15-16-0689, 6 pp.) (Wanda Bryant,
J.) Appealed from Forsyth County
District Court (George Bedsworth, J.)
N.C. App. Unpub.
Holding: A handwritten note on
the court calendar indicates that
Judge Hartsfield orally denied plain-
tiff’s first summary judgment motion;
however, no written order was ever
entered. Therefore, Judge Bedsworth
could grant plaintiff’s renewed motion
for summary judgment a year later.
We affirm summary judgment for
plaintiff.
Civil Rights
Constitutional – Due Process – Uni-
versity Student – Sexual Assault
Allegations
Tanyi v. Appalachian State
University (Lawyers Weekly No. 15-
04-0760, 19 pp.) (Richard Voorhees,
J.) 5:14-cv-00170; W.D.N.C.
Holding: The defendant-univer-
sity notified the plaintiff-student of
a new charge against him less than
24 hours before his hearing; plaintiff
has adequately alleged a violation
of his due process rights. However,
the court declines to extend Brady v.
Maryland to the civil context.
Defendants’ motion to dismiss is
granted in part and denied in part.
Civil Rights
Harassment by Law Enforcement –
Civil Practice – Statute of Limitations
– Pleadings Amendment
Kitchen v. Barton (Lawyers
Weekly No. 15-04-0928, 31 pp.)
(Martin Reidinger, J.) 1:14-cv-00122;
W.D.N.C.
Holding: Plaintiffs were arrested
on May 14, 2011, and they filed their
complaint on May 14, 2014; there-
fore, plaintiffs’ claims are time-barred
insofar as they depend on earlier ac-
tions by law enforcement.
Defendants’ motion to dismiss is
granted in part and denied in part.
Civil Rights
Hispanic Ethnicity – Sheriff’s Office –
ICE Program & Traffic Checkpoints
United States v. Johnson (Law-
yers Weekly No. 15-03-0800, 253
pp.) (Thomas Schroeder, J.) 1:12-cv-
01349; M.D.N.C.
Holding: Although a few witness-
es (some with uncertain credibility)
testified that the defendant-sheriff
had issued directives to target His-
panics in some instances, the witness-
es also said that no one followed such
directives. Given this testimony and
the limited value of the government’s
statistical evidence, the government
has failed to show that the sheriff en-
gaged in a pattern or practice of tar-
geting Hispanics.
The government’s claims are de-
nied.
Civil Rights
Public Records Act – Court Records –
ACIS – Contracts
LexisNexis Risk Data Man-
agement Inc. v. North Carolina
Administrative Office of the
Courts (Lawyers Weekly No. 15-
06-0828, 14 pp.) (Robert Edmunds
Jr., J.) (Sam Ervin IV, J., not par-
ticipating) Appealed from Wake
County Superior Court (James
Hardin Jr., J.) On discretionary
review from the Court of Appeals.
N.C. S. Ct.
Holding: The statute specifi-
cally governing court documents,
G.S. § 7A-109, controls over the
more general Public Records Act,
and the more recent and even more
specific § 7A-109(d) indicates that
the sole means of remote electron-
ic access to the Automatic Crimi-
nal/Infraction System (ACIS) is
through nonexclusive contracts
with the Administrative Office of
the Courts (AOC).
We reverse the Court of Ap-
peals, which held that ACIS was a
public record subject to disclosure
under the Public Records Act.
Constitutional
Eighth Amendment – Prisons &
Jails – Juvenile Offenders – Parole
Opportunity
Hayden v. Keller (Lawyers
Weekly No. 15-02-0932, 20 pp.)
(Terrence Boyle, J.) 5:10-cv-03123;
E.D.N.C.
Holding: North Carolina’s pa-
role commissioners and their case
analysts do not distinguish parole
reviews for juvenile offenders from
adult offenders; thus, they fail to
consider children’s diminished cul-
pability and heightened capacity
for change in their parole reviews.
The North Carolina parole re-
view process for juvenile offenders
serving a life sentence violates the
Eighth Amendment. The court de-
nies without prejudice plaintiff’s
request for injunctive relief and
gives the parties 60 days to present
a plan for the means and mecha-
nism to comply with the mandates
of Graham v. Florida, 560 U.S. 48
(2010), to provide a meaningful op-
portunity to obtain release based
on demonstrated maturity and re-
habilitation to juvenile offenders
convicted as adults.
Constitutional
Fifth Amendment Privilege –
Domestic Relations – DVPO
Defendant
Herndon v. Herndon (Lawyers
Weekly No. 15-07-0940, 21 pp.)
(Richard Dietz, J.) (Wanda Bryant,
J., dissenting) Appealed from Dur-
ham County District Court (Doret-
ta Walker, J.) N.C. App.
Holding: The trial court violat-
ed defendant’s Fifth Amendment
right against self-incrimination
when the court first threatened
defendant with jail if defendant in-
voked the privilege and then ques-
tioned defendant about matters
outside the scope of defendant’s
direct testimony.
We vacate the domestic violence
protective order (DVPO) and re-
mand for further proceedings.
Constitutional
First Amendment – Attorneys – Unau-
thorized Practice of Law – Corporate
Capital Associated Indus-
tries v. Cooper (Lawyers Weekly
No. 15-03-0892, 44 pp.) (Loretta
Biggs, J.) 1:15-cv-00083; M.D.N.C.
Holding: On this undeveloped
record, plaintiff – a nonprofit asso-
N O R T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 19, 2015
ciation of 1,080 member business-
es –is not entitled to a preliminary
injunction which would allow it to
provide legal advice and services
to its members through attorneys
employed by plaintiff.
Plaintiff’s motion for a prelimi-
nary injunction is denied. Defen-
dants’ motion to dismiss is also
denied.
Constitutional
Freedom of Religion – Civil Practice
– Subject Matter Jurisdiction – Tort/
Negligence – Abusive Priest
Doe 200 v. Diocese of Raleigh
(Lawyers Weekly No. 15-07-0661,
26 pp.) (Mark Davis, J.) Appealed
from Wake County Superior Court
(Donald Stephens, J.) N.C. App.
Holding: Determining whether
the diocese defendants knew or
had reason to know of the defen-
dant-priest’s proclivities for sexual
wrongdoing requires only the ap-
plication of neutral principles of
tort law and does not require an
intrusion into church governance.
We affirm the trial court’s de-
nial of the diocese defendants’ mo-
tion to dismiss for lack of subject
matter jurisdiction as to plaintiff’s
negligent supervision and negli-
gent infliction of emotional dis-
tress claims to the extent they are
based on the diocese defendants’
actual or constructive knowledge
of the defendant-priest’s proclivi-
ties. We reverse the denial of the
diocese defendants’ motion to dis-
miss plaintiff’s claims insofar as
they are based on the diocese de-
fendants’ refusal to require the
priest to undergo testing for sexu-
ally transmitted diseases (STDs).
Contract
Breach of Warranty – Civil Practice –
Statute of Limitations – Leaky Windows
Petty v. Marvin Lumber &
Cedar Co. (Lawyers Weekly No.
15-02-0878, 5 pp.) (James Fox,
S.J.) 2:13-cv-00062; E.D.N.C.
Holding: Even though defen-
dant provided a 10-year limited
warranty when plaintiffs bought
defendant’s windows for their new
house, and even though plaintiffs
did not notice that the windows
were leaking until September
2010, since plaintiffs started oc-
cupying their new house in June
2009, plaintiffs’ breach of contract
and warranty claims expired by
June 2013 at the latest.
Defendant’s motion to dismiss is
granted.
Contract
Lawyer’s Advice No Defense in FCA Case
U.S. ex rel. Drakeford v. Tu-
omey (Lawyers Weekly No. 15-01-
0704, 67 pp.) (Diaz, J.) No. 13-2219,
July 2, 2015; USDC at Columbia,
S.C. (Perry, Seymour, JJ.) 4th Cir.
Holding: In this False Claims
Act suit against a South Caro-
lina nonprofit hospital, the trial
court did not err in granting a re-
trial, and the 4th Circuit affirms a
$237.4 million award for plaintiff
in the second trial; although the
original trial judge ordered the new
trial after deciding it had erred in
excluding a hospital executive’s
deposition testimony, we affirm
on the alternative ground that the
trial court erred in excluding evi-
dence of a lawyer’s advice that the
hospital’s proposed contracts could
violate the Stark Law.
Contract
Modular Home Purchase – UCC –
Revocation of Acceptance – Water
Damage
Pittman v. Henry Moncure
Motors, Inc. (Lawyers Weekly No.
15-16-0863, 30 pp.) (Martha Geer,
J.) Appealed from Halifax County
Superior Court (W. Russell Duke
Jr., J.) N.C. App. Unpub.
Holding: Like mobile homes,
modular homes are “goods,” so
their sale is subject to the Uniform
Commercial Code. Despite the fact
that plaintiffs continued to live in
and make payments on their de-
fective modular home for 11 years,
this did not invalidate their revo-
cation of acceptance since the home
was plaintiffs’ primary residence
on which they were indebted.
We affirm judgment for plain-
tiffs in the amount of the purchase
price of the modular home, plus in-
terest from the date of revocation
of acceptance.
Contract
No Dismissal for Leak of Sealed FCA
Claim
Smith v. Clark/Smoot/Rus-
sell, a Joint Venture (Lawyers
Weekly No. 15-01-0798, 22 pp.)
(Wynn, J.) No. 14-1406, Aug. 10,
2015; USDC at Greenbelt, Md. (Ti-
tus, J.) 4th Cir.
Holding: Although a relator’s
lawyer disclosed the relator’s False
Claims Act suit to his employer be-
fore expiration of the 60-day wait-
ing period for the FCA complaint
to be unsealed, the district court
erred in dismissing the FCA ac-
tion with prejudice; the 4th Circuit
says dismissal was inappropriate
because the seal violation did not
incurably frustrate the seal’s stat-
utory purpose.
Contract
Promissory Note – Borrower’s
Discretion – Ambiguity
Odom v. Kelly (Lawyers Week-
ly No. 15-16-0785, 19 pp.) (Linda
Stephens, J.) Appealed from Wake
County Superior Court (Kendra
Hill, J.) N.C. App. Unpub.
Holding: Although a promisso-
ry note gives the borrower discre-
tion as to when to make payments,
the note is an enforceable contract,
albeit with ambiguous terms.
We reverse summary judgment
for defendant as to plaintiff’s
breach of contract claim. We affirm
summary judgment for defendant
as to plaintiff’s unjust enrichment
claim.
Contract
Settlement Agreement – Successor &
Designee – Membership Purchase
TaiDoc Technology Corp. v.
OK Biotech Co. (Lawyers Weekly
No. 15-15-0717, 14 pp.) (Louis Bled-
soe III, J.) 2015 NCBC 71
Holding: Even if defendant could
OPINION DIGESTS / 13
buy its way into being a “successor”
within the meaning of a settlement
agreement plaintiff entered into in
another lawsuit, that agreement only
released claims involved in the other
lawsuit, not the claims at issue here.
The court denies defendant’s mo-
tion for summary judgment based on
the affirmative defense of release.
Criminal Practice
ACCA Sentence Vacated on § 2255
Motion
U.S. v. Newbold (Lawyer
Weekly No. 15-01-0682, 22 pp.)
(Gregory, J.) No. 10-6929, June 30,
2015; USDC at Greensboro, N.C.
(Schroeder, J.) 4th Cir.
Holding: On remand from the
U.S. Supreme Court, the 4th Cir-
cuit says a petitioner convicted as
a felon in possession of a firearm
may challenge on collateral review
a Simmons sentencing error that
resulted in his erroneous designa-
tion as an armed career criminal.
Criminal Practice
Cell Phone Location Records
Admissible
U.S. v. Graham (Lawyers Weekly
No. 15-01-0794, 134 pp.) (Davis, J.)
No. 12-4659, Aug. 5, 2015; USDC at
Baltimore, Md. (Bennett, J.) 4th Cir.
Holding: The government vio-
lated defendant bank robbers’ Fourth
Amendment rights by obtaining cell
site location information from their
cell phone providers, but the records
were admissible under the good faith
exception to the warrant requirement,
and a divided 4th Circuit upholds
defendants’ convictions for multiple
bank robberies and related crimes.
Criminal Practice
Constitutional – Confrontation Right
– DMV Records – Nontestimonial –
First Impression
State v. Clark (Lawyers Weekly
No. 15-07-0672, 8 pp.) (Chris Dillon,
J.) Appealed from Caldwell County
Superior Court (C. Thomas Edwards,
J.) N.C. App.
Holding: The documents used to
convict defendant of driving while
license revoked – a copy of his driv-
ing record, two orders indefinitely
suspending defendant’s license, and a
document authenticating the suspen-
sion orders and saying it was mailed
to the person named in the orders –
were created by the Division of Motor
Vehicles during the routine admin-
istration of its affairs and in compli-
ance with its statutory obligations to
maintain records of drivers’ license
revocations and to provide notice to
motorists whose driving privileges
have been revoked. Since the docu-
ments were not created for the pur-
pose of proving some fact at trial, they
are not testimonial. Therefore, the
admission of these documents with-
out accompanying testimony did not
violate defendant’s right to confront
the witnesses against him.
No error.
Criminal Practice
Court Erred in Finding ‘Forfeiture’ of
Counsel
U.S. v. Ductan (Lawyers
Weekly No. 15-01-0858, 32 pp.)
(Per Curiam) No. 14-4220, Sept.
2, 2015; UDC at Charlotte, N.C.
(Conrad, J.) 4th Cir.
Holding: A trial court violated a
drug defendant’s Sixth Amendment
right to counsel when it found that
defendant had forfeited his right
to counsel by making “nonsense
statements” and required him to
proceed pro se; the 4th Circuit
vacates defendant’s conviction and
84-month sentence.
Criminal Practice
DWI – Excited Utterance – Mistrial –
Motion to Suppress
State v. Skinner (Lawyers
Weekly No. 15-16-0789, 14 pp.)
(Wanda Bryant, J.) Appealed from
Pitt County Superior Court (Alma
Hinton, J.) N.C. App. Unpub.
Holding: In the emergency
room after a single-car accident,
defendant had not yet been read
his Miranda rights when a state
trooper heard him talking to him-
self, saying, “I was driving.” Defen-
dant’s statement was not the prod-
uct of an interrogation by a law
enforcement officer and is more
akin to an excited utterance. The
statement was admissible.
We find no error in defendant’s
conviction of driving while
impaired.
Criminal Practice
DWI – Expert Testimony – Retrograde
Extrapolation – Average & Midpoint –
Field Sobriety Tests
State v. Turbyfill (Lawyers
Weekly No. 15-07-0853, 22 pp.)
(Wanda Bryant, J.) Appealed from
Buncombe County Superior Court
(Jeffrey Hunt, J.) N.C. App.
Holding: Even though an ex-
pert in retrograde extrapolation
misused the terms “midpoint” and
“average” as synonyms when he
discussed the alcohol elimination
rate of 0.0165, the calculations at
issue were based on well-recog-
nized and accepted scientific and
applicable methodology.
We find no reversible error in
defendant’s convictions of driving
while impaired and driving after
consuming alcohol under age 21.
Criminal Practice
DWI – Reasonable Suspicion –
Crossing Fog Line
State v. Pegram (Lawyers
Weekly No. 15-16-0866, 9 pp.)
(Martha Geer, J.) Appealed from
Wake County Superior Court (Mi-
chael Morgan & Orlando Hudson,
JJ.) N.C. App. Unpub.
Holding: When defendant’s
tires touched and later crossed –
by about two inches – the fog line,
the arresting officer had reason-
able suspicion to stop defendant.
We affirm the trial court’s denial
of defendant’s motion to suppress.
Criminal Practice
Ex-Governor’s Bribery Conviction
Upheld
U.S. v. McDonnell (Lawyers
Weekly No. 15-01-0705, 89 pp.)
(Thacker, J.) No. 15-4019, July
14 / OPINION DIGESTS
10, 2015; USDC at Richmond, Va.
(Spencer, J.) 4th Cir.
Holding: The 4th Circuit af-
firms former Virginia Gov. Rob-
ert F. McDonnell’s conviction on
11 counts of corruption, rejecting
all his claims of error, including
his principal claim that the dis-
trict court’s jury instructions de-
fined bribery and “official acts” too
broadly; the government’s evidence
demonstrated a close relation-
ship between McDonnell’s official
acts and the money, loans, gifts,
and favors provided by a company
CEO to McDonnell and his wife in
exchange for official acts to help
secure independent testing of the
company’s new product.
Criminal Practice
Firearm Discharge Not ‘Violent’ Crime
U.S. v. Parral-Dominguez
(Lawyers Weekly No. 15-01-0756,
38 pp.) (Floyd, J.) No. 14-4546,
July 23, 2015; USDC at New Bern,
N.C. (Flanagan, J.) 4th Cir.
Holding: The 4th Circuit va-
cates a Mexican citizen’s 65-month
prison sentence for illegal reen-
try into the U.S., enhanced for a
“crime of violence,” based on de-
fendant’s prior North Carolina
conviction for discharging a fire-
arm into an occupied building;
LAWYER TO LAWYER / Directory
that offense under N.C.G.S. § 14-
34.1 was not a “crime of violence”,
and the district court’s error was
not harmless.
Criminal Practice
Habitual Felon – First Impression –
Extra Conviction – Witness Credibility
– Burning Personal Property –
‘Bedding’
State v. Jefferies (Lawyers
Weekly No. 15-07-0955, 16 pp.)
(Chris Dillon, J.) Appealed from
Cleveland County Superior Court
(Richard Boner, J.) N.C. App.
Holding: Where (1) the habitu-
al felon indictment identified three
predicate felonies, (2) the trial
court instructed the jury on four
felonies, and (3) it is impossible
to tell whether any of the jurors
relied on the fourth felony in find-
ing defendant guilty of attaining
habitual-felon status, we must as-
sume the jury based its verdict on
the theory for which it received an
improper instruction.
Defendant is entitled to a new
trial on the habitual felon charge.
We reverse defendant’s conviction
on this charge, vacate the judg-
ment entered on the conviction and
remand for a new trial. We find no
error in defendant’s conviction of
burning personal property.
N O R T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 19, 2015
Criminal Practice
Injury to Real Property – Fixture – Air
Conditioner – Restitution – Sentencing
State v. Hardy (Lawyers Weekly
No. 15-07-0673, 26 pp.) (Lucy Inman,
J.) Appealed from Wayne County Su-
perior court (W. Allen Cobb Jr., J.)
N.C. App.
Holding: Where the victim’s en-
tire air conditioning unit could not be
taken away but had to be “gutted” to
be removed, and where it was so inte-
grated with the home’s other systems
that defendant caused significant
damage to the home’s water pipes
when he tried to remove the air con-
ditioner, the air conditioner was “real
property” within the meaning of G.S.
§ 14-127.
We find no error in defendant’s
convictions of breaking and entering,
larceny after breaking and entering,
and willful and wanton injury to real
property. We remand for resentencing.
Criminal Practice
Juvenile – Interrogation – Right to
Have Parent Present – Ambiguous
Statement – First Impression
State v. Saldierna (Lawyers
Weekly No. 15-07-0728, 20 pp.)
(Linda Stephens, J.) Appealed
from Mecklenburg County Superi-
or Court (Forrest Bridges & Jesse
Caldwell, JJ.) N.C. App.
Holding: During a police in-
terrogation of the 16-year-old de-
fendant, he asked, “Can I call my
mom?” At that point, the inter-
rogating officer was required to
clarify the meaning of defendant’s
statement before continuing with
her questioning.
We reverse the trial court’s de-
nial of defendant’s motion to sup-
press. We remand with instruc-
tions to grant the motion and for
further proceedings.
Criminal Practice
Larceny – Gift Cards – Evidence
– Hearsay – Business Records
Exception – Computer Printout
State v. Hamlin (Lawyers
Weekly No. 15-16-0752, 9 pp.)
(Rick Elmore, J.) Appealed from
Transylvania County Superior
Court (William Coward, J.) N.C.
App. Unpub.
Holding: In this case involving
the theft of gift cards, the testi-
mony of a grocery store’s corporate
security director was sufficient to
lay the foundation for admission of
business records which were print-
ed out from a third-party server.
We find no error in defendant’s
N O R T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 19, 2015
conviction of felony larceny after
breaking and entering.
Criminal Practice
Miranda Waiver – Voluntariness
– Shooting Victim – Medications –
Police Misconduct
State v. Ingram (Lawyers Week-
ly No. 15-07-0676, 25 pp.) (Robert
Hunter Jr., J.) Appealed from Dur-
ham County Superior Court (G. Bry-
an Collins, J.) N.C. App.
Holding: In its order suppress-
ing statements that defendant
made while he was in the hospital
awaiting treatment for gunshot
wounds, the trial court failed to
make findings as to defendant’s
ability to waive his Miranda
rights, his degree of impairment
from earlier doses of pain medica-
tion, and whether law enforcement
had ordered that additional pain
medication be withheld until after
they could interview defendant.
We vacate the suppression order
and remand for further findings.
Criminal Practice
No COA Needed for Court Review
U.S. v. McRae (Lawyers Week-
ly No. 15-01-0712, 28 pp.) (Grego-
LAWYER TO LAWYER / Directory
ry, J.) No. 13-6878, July 13, 2015;
USDC at Charlotte, N.C. (Conrad,
J.) 4th Cir.
Holding: Under recent Su-
preme Court jurisprudence, the
4th Circuit holds it can review
the district court’s categorization
of defendant’s 22 U.S.C. § 2255
motion as an impermissible suc-
cessive petition without first issu-
ing a Certificate of Appealability
pursuant to 28 U.S.C. § 2253(c)(1)
(B); because we find defendant’s
motion constitutes a mixed Rule
60(b)/ § 2255 motion, we remand
to the district court to allow defen-
dant a chance to decide whether to
abandon his improper claim or to
proceed with a successive habeas
petition.
Criminal Practice
Rape of a Child – Evidence – Pornog-
raphy – Rape Shield Statute – Alter-
nate Knowledge Source
State v. Rorie (Lawyers Weekly
No. 15-07-0819, 17 pp.) (Appealed
from Forsyth County Superior Court
(A. Moses Massey, J.) N.C. App.
Holding: The Rape Shield Stat-
ute, N.C. R. Evid. 412, is only con-
cerned with the sexual activity of
the complainant. Evidence that the
victim was discovered watching a
pornographic video is not evidence of
OPINION DIGESTS / 15
sexual activity barred by Rule 412.
Moreover, this evidence was relevant
to explain an alternative source of the
6-year-old victim’s sexual knowledge,
from which she could have fabricated
her allegations against defendant.
Defendant is entitled to a new trial.
Criminal Practice
Search & Seizure – Cell Phone Re-
cords – Historical Location – 5- to
15-Minute Delay – Expectation of
Privacy – First Impression
State v. Perry (Lawyers Weekly
No. 15-07-0888, 42 pp.) (John Tyson,
J.) (Linda McGee, C.J., concurring)
Appealed from Wake County Supe-
rior Court (Henry Hight, J.) N.C. App.
Holding: Pursuant to an order is-
sued under the federal Stored Com-
munications Act, defendant’s cell
phone provider sent police officers
“ping” updates about defendant’s cell
phone location every few minutes.
Given the delay in the officers’ receipt
of the location information, this was
“historical” information for which the
officers did not need a search warrant.
We find no error in defendant’s
convictions of trafficking heroin by
possession; trafficking heroin by sale;
maintaining a dwelling place for the
sale of a controlled substance; traf-
ficking heroin by transportation; and
conspiracy to traffic heroin by posses-
sion, transportation, and sale.
Criminal Practice
Search & Seizure – Search Warrant – Defen-
dant’s Home – Guest’s Car – First Impression
State v. Lowe (Lawyers Week-
ly No. 15-07-0727, 19 pp.) (Lucy
Inman, J.) Appealed from Wake
County Superior Court (Reuben
Young, J.) N.C. App.
Holding: A warrant to search
a home did not permit officers
to search the car of an overnight
guest, despite the fact that it was
parked in the home’s driveway.
We reverse the trial court’s de-
nial of defendant’s motion to sup-
press. Remanded.
Criminal Practice
Second-Degree Murder – Evidence –
Prior Bad Acts
State v. Mangum (Lawyers
Weekly No. 15-07-0678, 24 pp.) (Ann
Marie Calabria, J.) Appealed from
Durham County Superior Court (Paul
Ridgeway, J.) N.C. App.
Holding: The stabbing incident in
question and an earlier incident both
involved defendant and her current
boyfriend, escalation of an argument
that led to the use of force between
16 / OPINION DIGESTS
the participants, defendant’s further
escalation of the argument, and de-
fendant’s deliberate decision to obtain
a knife from the kitchen; accordingly,
evidence from the earlier incident
was probative of defendant’s motive,
intent, and plan in the instant case.
We find no error in defendant’s
conviction of second-degree murder.
Criminal Practice
Sentencing Level – Appeals – Factual
Stipulation – Ineffective Assistance Claim
State v. Edgar (Lawyers Week-
ly No. 15-07-0817, 14 pp.) (Mark
Davis, J.) Appealed from Johnston
County Superior Court (Richard
Brown, J.) N.C. App.
Holding: Defendant argues on
appeal that his prior Michigan
conviction for carrying a concealed
weapon is substantially similar to
the North Carolina offense of car-
rying a concealed weapon (a Class
2 misdemeanor for first-time of-
fenders). However, defendant stip-
ulated to a question of fact: that he
had a prior Michigan conviction,
which was classified as a felony in
Michigan (leading to its classifica-
tion as a Class I felony here). De-
fendant’s stipulation mooted any
contentions he might have raised
as to the calculation of his prior
record level under G.S. § 15A-
1444(a2).
Defendant’s appeal is dismissed.
Domestic Relations
Alimony – Civil Practice – Prior Orders
– Judicial Notice
Khaja v. Husna (Lawyers
Weekly No. 15-07-0943, 35 pp.)
(Donna Stroud, J.) Appealed from
Wake County District Court (Deb-
ra Sasser & Michael Denning, JJ.)
N.C. App.
Holding: At the parties’ ali-
mony hearing, the trial court was
not bound by findings of fact made
in previous summary judgment
and preliminary injunction orders.
The trial court also erred when it
took judicial notice of the Bureau
of Labor Statistics’ average salary
for electrical engineers, especially
since defendant’s earning capacity
was a matter in dispute.
We affirm the divorce judgment,
preliminary injunction, sanctions
order, and attorney fees order. We
reverse and remand the alimony
order.
Domestic Relations
Alimony – Contract – Recipient’s Co-
habitation – Public Policy
Patterson v. Patterson (Law-
yers Weekly No. 15-07-0667, 9 pp.)
(Douglas McCullough, J.) Appealed
from Harnett County District Court
(Jacquelyn Lee, J.) N.C. App.
Holding: Although G.S. § 50-16.9
requires the termination of court-or-
dered alimony if the recipient engages
in cohabitation, the state’s public pol-
icy does not require the termination
of contractual alimony if the recipi-
ent engages in cohabitation. The par-
ties’ separation agreement required
defendant to pay plaintiff alimony
until plaintiff remarried or either of
the parties died; therefore, defendant
breached the separation agreement –
which was never incorporated into a
court order – when he ceased making
alimony payments because plaintiff
was cohabiting.
We affirm the trial court’s denial
of defendant’s motion for summary
judgment.
Domestic Relations
DVPO – ‘Dating Relationship’ – Three Weeks
Thomas v. Williams (Lawyers
Weekly No. 15-07-0669, 13 pp.) (Lin-
da McGee, C.J.) Appealed from Meck-
lenburg County District Court (Eliza-
beth Trosch, J.) N.C. App.
Holding: Even though the parties
dated for less than three weeks, they
had a “dating relationship” within the
meaning of G.S. § 50B-1.
We affirm the trial court’s domestic
violence protective order.
Domestic Relations
Military Pension – Correction – Civil
Practice – In Rem Jurisdiction – Ex-
Wife & Widow
Ellison v. Ellison (Lawyers
Weekly No. 15-07-0762, 13 pp.) (Lin-
da McGee, C.J.) Appealed from Cum-
berland County District Court (A.
Elizabeth Keever, J.) N.C. App.
Holding: Before he died in 2011,
plaintiff’s ex-husband, Henry Ellison,
failed to comply with a 2002 court
order to name plaintiff as the benefi-
ciary of his military Survivors Bene-
fit Plan (SBP), and – apparently not
knowing Mr. Ellison had failed to do
so – plaintiff did not obtain a “deemed
election” under 10 U.S.C. § 1450(f)(3).
N O R T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 19, 2015
However, since the third-party defen-
dant-widow failed to participate in
this matter, the trial court could enter
an order ruling that the widow has no
interest in Mr. Ellison’s SBP.
We affirm summary judgment for
plaintiff.
Domestic Relations
Parent & Child – ‘Caretaker’ – Sleepover
– Abuse & Neglect Adjudication
In re R.R.N. (Lawyers Weekly
No. 15-06-0829, 9 pp.) (Paul Newby,
J.) Appealed from Wilson County Dis-
trict Court (Pell Cooper, J.) On discre-
tionary review from the Court of Ap-
peals. N.C. S. Ct.
Holding: An adult relative at a
child’s one-night sleepover was not
the child’s “caretaker” within the
meaning of the Juvenile Code. Since
the child’s parents acted appropriate-
ly, DSS should not have intervened.
We affirm the Court of Appeals’ de-
cision.
Domestic Relations
Parent & Child – Custody – Modifica-
tion Motion – Effect on Child
Welch v. Willey (Lawyers Weekly
No. 15-16-0737, 4 pp.) (Chris Dillon,
J.) Appealed from Pitt County Dis-
trict Court (P. Gwynett Hilburn, J.)
N.C. App. Unpub.
Holding: Because of the de-
fendant-mother’s substance abuse
problems, she was awarded only su-
pervised visitation with the parties’
child. When the mother moved for a
modification four years later, she was
not required to specifically allege a
causal connection between any as-
serted change in circumstance and its
impact on the welfare of the child.
We reverse the trial court’s dis-
missal of the mother’s motion seeking
greater visitation and remand for a
hearing on the motion.
Domestic Relations
Post-Separation Support – Military
Pension – Sanction – Equitable Distri-
bution – Tracing Funds
Charles v. Charles (Lawyers
Weekly No. 15-16-0740, 24 pp.) (Linda
McGee, C.J.) Appealed from Cumber-
land County District Court (George
Franks IV, J.) N.C. App. Unpub.
Holding: Although more than a
year has passed since the trial court
first ordered plaintiff to elect defen-
dant, his ex-wife, as beneficiary of
his military “Survivor Benefit Plan”
(SBP) – an order plaintiff apparently
defied – since the trial court again or-
dered plaintiff to elect defendant as his
SBP beneficiary, defendant has an-
other year to request that plaintiff be
deemed to have elected her as benefi-
ciary under 10 U.S.C. § 1450(f)(3)(A).
We affirm the trial court’s orders as
to post-separation support. We reverse
in part and remand the equitable dis-
tribution order.
Elections
Municipal – Constitutional – Equal Pro-
tection – City Government Legislation
City of Greensboro v. Guilford
County Board of Elections (Law-
yers Weekly No. 15-03-0779, 21 pp.)
(Catherine Eagles, J.) 1:15-cv-00559;
M.D.N.C.
Holding: Plaintiffs have shown
a likelihood of success on their claim
that Session Law 2015-138 violates
Greensboro voters’ equal protection
rights by depriving them of referen-
dum and other local control rights
given to all other municipal voters
in the state, without a rational basis
for that unequal and discriminatory
treatment.
The court grants plaintiffs’ mo-
tion to preliminarily enjoin defendant
from holding municipal elections in
conformity with Session Law 2015-
138.
Intellectual Property
High-Rise Building Copyright Claim Fails
Humphreys & Partners Archi-
tects LP v. Lessard Design (Law-
yers Weekly No. 15-01-0649, 26 pp.)
(Duncan, J.) No. 14-2030, June 23,
2015; USDC at Alexandria, Va. (Ellis,
J.) 4th Cir.
Holding: In this suit alleging the
design of a high-rise apartment build-
ing in McLean, Va., infringes on plain-
tiff architectural firm’s copyright for a
condominium building in Minneapo-
lis, the 4th Circuit upholds summary
judgment for defendant design firm.
Plaintiff Humphreys & Partners
Architects LP (HPA) sued Lessard
Design Inc. and multiple co-defen-
dants, claiming that the design, de-
velopment, ownership and construc-
tion of Two Park Crest, an apartment
building in McLean, infringed HPA’s
architectural copyright embodied in
Grant Park, a condominium building
in Minneapolis, Minn. The district
court awarded summary judgment to
appellees, primarily because no rea-
sonable jury could find that the Grant
Park and Two Park Crest designs are
substantially similar.
Intellectual Property
Trade Secrets – Recipes – Trademark
– Tort/Negligence – Unfair Trade Prac-
tices – University Café
Bon Vivant Catering, Inc. v.
Duke University (Lawyers Weekly
No. 15-03-0859, 17 pp.) (Joi Eliza-
beth Peake, USMJ) 1:13-cv-00728;
M.D.N.C.
Holding: In its trade secrets mis-
appropriation claim, plaintiff has suf-
ficiently identified the menu items
defendant is accused of misappropriat-
ing; the complaint need not allege the
specific recipes for these menu items.
Defendant Duke University’s
(Duke’s) motion to dismiss should be
denied in part. It should be granted
as to plaintiff’s standing with respect
to its trademark infringement claim;
however, plaintiff should be allowed
to amend its complaint to correct the
standing issue.
Intellectual Property
Trademark Infringement – Descrip-
tive Mark – Secondary Meaning – Un-
fair Trade Practices – Learned Profes-
sion Exclusion – Advertising
Charlotte Chiropractic Clinic,
P.A. v. Williams (Lawyers Weekly
No. 15-04-0897, 8 pp.) (Robert Conrad
Jr., J.) 3:14-cv-00585; W.D.N.C.
Holding: Plaintiff has suffi-
ciently alleged infringement of its
trademark via allegations about its
chiropractors’ use of the mark “Chi-
roCarolina” and about patient con-
fusion over defendants’ use of the
N O R T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 19, 2015
mark “Chiro-Carolina.”
The court denies defendants’ mo-
tion to dismiss plaintiff’s trademark
infringement claims. The court grants
defendants’ motion to dismiss plain-
tiff’s unfair trade practices claim.
Judges
Partial Recusal – Attorney’s Fees – Con-
tempt Motion – Domestic Relations
Zurosky v. Shaffer (Lawyers
Weekly No. 15-16-0793, 12 pp.)
(Douglas McCullough, J.) Ap-
pealed from Mecklenburg County
District Court (Paige McThenia,
J.) N.C. App. Unpub.
Holding: Although the trial judge
recused herself from considering a
motion for attorney’s fees that was
filed by a member of her husband’s
law firm, since the motion for attor-
ney’s fees was dependent on a con-
tempt motion being granted, the judge
should also have recused herself from
considering the contempt motion.
The contempt orders that were
issued after the denial of the mo-
tion to recuse are of no effect. Re-
versed and remanded.
Labor & Employment
Computer Trespass – Covenant Not to
Compete – Tort/Negligence – Unfair
Trade Practices
Spirax Sarco, Inc. v. SSI En-
gineering, Inc. (Lawyers Weekly
No. 15-02-0840, 43 pp.) (James
Fox, S.J.) 5:14-cv-00519; E.D.N.C.
Holding: Plaintiff Spirax al-
leges that, prior to leaving Spirax’s
employ, defendant Johnson used
his Spirax-issued laptop to down-
load thousands of computer files to
his own devices without authoriza-
tion and in contravention of Spirax
policies and that he also deleted
thousands of computer files from
the Spirax-issued laptop without
authorization. These allegations
are sufficient to state a claim un-
der North Carolina’s computer
trespass statute.
The parties’ cross-motions to
dismiss are granted in part and
denied in part.
Labor & Employment
Constitutional – Due Process – Liberty
Interest – Termination – Tort/Negligence –
Intentional Infliction of Emotional Distress
Bryant v. Village of Bald
Head Island (Lawyers Weekly No.
15-02-0806, 12 pp.) (Malcolm How-
ard, S.J.) 7:14-cv-00223; E.D.N.C.
Holding: By publishing alleg-
edly false explanations for firing
plaintiff and refusing to give him a
hearing to refute the explanations,
defendant may have deprived
plaintiff of a liberty interest with-
out due process.
Defendants’ motion to dismiss
is granted as to plaintiff’s claims
against defendant Peck in his of-
ficial capacity. Otherwise, the mo-
tion is denied.
Labor & Employment
Contract – Covenant Not to Compete
– Missing Term – Consideration –
Parol Evidence – Merger Clause
Employment Staffing Group,
Inc. v. Little (Lawyers Weekly No. 15-
07-0938, 11 pp.) (Lucy Inman, J.) Ap-
pealed from Cleveland County Superi-
or Court (Forrest Bridges, J.) N.C. App.
Holding: Even though an employ-
ment agreement – which the parties
entered into 13 years after defendant
started working for plaintiff, and
which included a covenant not to com-
pete – contained a merger clause and
did not mention consideration, parol
evidence was admissible to show that
plaintiff paid defendant $100 to sign
the agreement.
We affirm the trial court’s grant of
plaintiff’s motion for a preliminary in-
junction.
Labor & Employment
Court Adopts Title VII ‘Joint Employ-
ment Doctrine’
Butler v. Drive Automotive
Industries of America Inc. (Law-
yers Weekly No. 15-01-0730, 27 pp.)
(Floyd, J.) No. 14-1348, July 15, 2015;
USDC at Greenville, S.C. (Austin, J.)
4th Cir.
Holding: Although plaintiff was
assigned to work in defendant’s auto-
motive factory by the temporary staff-
ing agency that employed her, both
employers are potentially liable to
plaintiff for sexual harassment under
Title VII; summary judgment for the
automotive employer is reversed.
Labor & Employment
Court Nixes ‘Manager Rule’ in Title VII
Cases
DeMasters v. Carilion Clinic
(Lawyers Weekly No. 15-01-0799, 32
pp.) (Krause, J.) No. 13-2278, Aug. 10,
2015; USDC at Roanoke, Va. (Urban-
ski, J.) 4th Cir.
Holding: The 4th Circuit reverses
summary judgment for defendant
hospital and revives a Title VII retali-
ation claim filed by an Employee As-
sistance Program counselor who as-
sisted a fellow employee in reporting
sexual harassment by his male super-
visor; after the employer settled the
employee’s Title VII suit, it allegedly
fired the EAP counselor for failing
to take the “pro-employer side” and
leaving the employer in a “comprised
position.”
Labor & Employment
Employer Could Be Liable for Racist
Death Threats
Pryor v. United Air Lines Inc.
(Lawyers Weekly No. 15-01-0685, 26
pp.) (Gregory, J.) No. 14-1442, July
1, 2015; USDC at Alexandria, Va.
(Brinkema, J.) 4th Cir.
Holding: The 4th Circuit vacates
summary judgment for United Air-
lines in an African-American flight at-
tendant’s hostile environment suit al-
leging the airlines failed to adequately
respond to racist death threat left in
her company mailbox; the district
court concluded plaintiff was subjected
to a racially hostile work environment,
but erred in deciding on summary
judgment that the airline was not li-
able for the offensive conduct.
Labor & Employment
ERISA – Retirement Plans – Breach of
Fiduciary Duty Claim – Excessive Fees
– Institutional Investor Status
Kruger v. Novant Health, Inc.
OPINION DIGESTS / 17
(Lawyers Weekly No. 15-03-0923, 24
pp.) (William Osteen Jr., J.) 1:14-cv-
00208; M.D.N.C.
Holding: Plaintiffs allege that de-
fendants’ plan only offers retail class
shares when the plan could offer iden-
tical institutional shares at signifi-
cantly lower fees. Plaintiffs have suf-
ficiently alleged a breach of fiduciary
duty under the Employee Retirement
Income Security Act.
Defendants’ motion to dismiss is
denied.
Labor & Employment
Hospital – Staff Privileges – Canadian
Doctor – Arbitrary & Capricious Stan-
dard – Antitrust – Monopolization
Kohn v. FirstHealth of the
Carolinas, Inc. (Lawyers Weekly
No. 15-16-0696, 20 pp.) (Linda Ste-
phens, J.) Appealed from Moore
County Superior Court (James
Webb, J.) N.C. App. Unpub.
Holding: Even though the
defendant-hospital granted staff
privileges on two occasions to phy-
sicians whose residencies were
not accredited by the Accredita-
tion Council for Graduate Medical
Education or its predecessor, it ap-
pears that these actions resulted
from inadvertent oversights that
occurred in the mid-1990’s and
that since then, the hospital has
consistently applied its require-
ment that all applicants for staff
privileges have completed ACG-
ME-accredited residencies.
We affirm the trial court’s grant
of summary judgment for the hos-
pital.
Labor & Employment
Title VII & 42 U.S.C. § 1981 – College
Professor – Race Discrimination &
Hostile Environment Claims
Mann v. Winston Salem State
University (Lawyers Weekly No. 15-
03-0920, 21 pp.) (William Osteen Jr.,
J.) 1:14-cv-01054; M.D.N.C.
Holding: The white plaintiff-
professor’s allegations of harassment
and bullying by an African-American
professor at a traditionally African-
American state university are suffi-
cient to state claims under 42 U.S.C.
§§ 1981 and 1983.
The court dismisses plaintiff’s §§
1981 and 1983 claims against the uni-
versity. The court dismisses plaintiff’s
Title VII claim against defendant
Smith. Plaintiff has leave to amend
her complaint, except as to the dis-
missed claims.
Labor & Employment
Tort/Negligence – Wrongful Dis-
charge – Civil Rights – Religious
Discrimination Claim – Flu Vaccine
Head v. Adams Farm Living,
Inc. (Lawyers Weekly No. 15-07-
0809, 24 pp.) (Mark Davis, J.) Ap-
pealed from Guilford County Supe-
rior Court (R. Stuart Albright, J.)
N.C. App.
Holding: Plaintiff, a Seventh-
Day Adventist, made out a prima
facie case that the defendant-nurs-
ing home discriminated against
her on the basis of her religion
when it fired her for refusing to
get a flu vaccine. However, plain-
tiff failed to show that the nursing
home was offering a pretext for dis-
crimination when it said that the
vaccines were required because of
a flu outbreak among its vulnera-
ble residents and that plaintiff had
failed to provide an excuse from a
physician.
We affirm summary judgment
for the nursing home.
Labor & Employment
Unemployment Benefits – Evidence –
Hearsay Statement – Misconduct
Jackson v. North Carolina
Department of Commerce
(Lawyers Weekly No. 15-07-0774,
11 pp.) (Chris Dillon, J.) Appealed
from Davidson County Superior
Court (Beecher Gray, J.) N.C. App.
Holding: At her hearing before
the Employment Security Division
appeals referee, petitioner could
have objected to the admission of
a co-worker’s written statement on
the basis that she should be afford-
ed the opportunity to confront the
witness. Since petitioner failed to
object to the admission of the state-
ment at the hearing, the statement
was competent evidence support-
ing the denial of petitioner’s claim
for unemployment benefits.
We reverse the superior court’s
decision, which reversed the denial
of unemployment benefits.
Municipal
Impact Fees – Real Property –
Subdivision Development – Refund &
Interest
China Grove 152, LLC v.
Town of China Grove (Lawyers
Weekly No. 15-07-0656, 15 pp.)
(Lucy Inman, J.) Appealed from
Rowan County Superior Court
(Mark Klass, J.) N.C. App.
Holding: G.S. § 160A-372(c)
says that a subdivision control
ordinance “may provide that a de-
veloper may provide funds to the
city whereby the city may acquire
recreational land” for parks; that
language is clearly permissive and
does not authorize municipali-
ties to charge fees as a condition
precedent to subdivision approval,
as the defendant-town’s adequate
public facilities ordinance did here.
We affirm judgment on the
pleadings for the plaintiff-develop-
ers, the trial court’s conclusion that
the town’s adequate public facili-
ties ordinance (APFO) fee was il-
legal, and the award of $18,221.58
in interest to the developers.
Real Property
Automatic Stay Violation Claim
Revived
Houck v. Substitute Trustee
Services Inc. (Lawyers Weekly
No. 15-01-0684, 33 pp.) (Niemey-
er, J.) No. 13-2326, July 1, 2015;
USDC at Statesville, N.C. (Cayer,
J.) 4th Cir.
Holding: The 4th Circuit va-
cates dismissal of plaintiff’s suit
against a substitute trustee and
remands to allow her to proceed on
her suit alleging defendants fore-
closed on and sold her homestead
in violation of the automatic stay
triggered by her Chapter 13 bank-
ruptcy petition; the district court
applied an incorrect standard for
dismissal: whether a lawful alter-
native explanation for defendants’
actions appeared more likely.
18 / OPINION DIGESTS N O R T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 19, 2015

Real Property
Easements – Highway – Public Utili-
ties – Fiber Optic Cable
Tyson v. North Carolina De-
partment of Transportation
(Lawyers Weekly No. 15-16-0792,
14 pp.) (Linda Stephens, J.) Ap-
pealed from Beaufort County Su-
perior Court (Kenneth Titus, J.)
N.C. App. Unpub.
Holding: Although the original
right of way granted by plaintiffs’
predecessor to the North Carolina
Department of Transportation’s
predecessor used the phrase “across
the lands of the undersigned,” that
1953 agreement releases NCDOT
from liability for any past or future
damages resulting from “all pur-
poses for which [NCDOT] is autho-
rized by law to subject such right
of way….” G.S. § 136-18 vests NC-
DOT with the power to see to the
placement of utility lines “above or
below ground” and for changes in
their locations; therefore, relocat-
ing fiber optic lines was a purpose
“authorized by law” for which NC-
DOT could lawfully use its right of
way across plaintiffs’ property.
We affirm judgment for defen-
dants.
Real Property
Gift Deed – Notary Recipient – Switched
First Page – Adverse Possession
Quinn v. Quinn (Lawyers Week-
ly No. 15-07-0944, 18 pp.) (Donna
Stroud, J.) (Wanda Bryant, J., concur-
ring in the result only without sepa-
rate opinion) Appealed from Lenoir
County Superior Court (Benjamin
Alford, J.) N.C. App.
Holding: A deed by which plaintiff
purportedly transferred property is
void either (1) because defendant Pa-
tricia Quinn was both a grantee and
the notary who notarized the deed or
(2) because the original first page of
the deed – transferring the property
to plaintiff’s brother and his wife –
was switched without plaintiff’s con-
sent for a front page transferring the
property to defendants.
The court reverses summary judg-
ment for defendants and remands
for further proceedings regarding ad-
verse possession.
Real Property
Mortgages – Banks & Banking – Contract
– Guarantors – Anti-Deficiency Statute
High Point Bank & Trust Co.
v. Highmark Properties, LLC
(Lawyers Weekly No. 15-06-0915,
13 pp.) (Barbara Jackson, J.) (Sam
Ervin IV, J., not participating) Ap-
pealed from Guilford County Supe-
rior Court (Ronald Spivey & Stu-
art Albright, JJ.) On discretionary
review from the Court of Appeals.
N.C. S. Ct.
Holding: Anti-deficiency stat-
ute G.S. § 45-21.36 simply allows
guarantors the right to a judicial
method of debt calculation that ac-
counts for the fair market value of
the mortgaged property at the time
of a foreclosure sale. Accordingly,
notwithstanding the waiver lan-
guage contained in the guaranty
agreements, the defendant-guar-
antors did not waive their right to
the protection of § 45-21.36.
We modify and affirm the Court
of Appeals’ decision. We hold that
joinder of the borrower was proper
and that, irrespective of the bor-
rower’s presence in the litigation,
guarantors may assert the anti-
deficiency defense.
Schools & School Boards
Constitutional – Opportunity Schol-
arship Program – Public Purpose
Hart v. State (Lawyers Weekly
No. 15-06-0753, 55 pp.) (Mark Mar-
tin, C.J.) (Robin Hudson, J., joined
by Cheri Beasley & Sam Ervin IV,
JJ., dissenting) (Cheri Beasley, J.,
dissenting separately) Appealed
from Wake County Superior Court
(Robert Hobgood, J.) N.C. S. Ct.
Holding: Even if the Opportu-
nity Scholarship Program – which
uses taxpayer dollars as scholar-
ships for underprivileged children
to attend non-public schools –
turns out to be unwise, it does not
violate the North Carolina Consti-
tution. The Constitution does not
limit the General Assembly’s abil-
ity to fund education outside the
public schools.
We reverse the superior court’s
determination that the program
(found at G.S. § 115C-562.1 et seq.)
is unconstitutional.
Schools & School Boards
Constitutional – Penalties & Forfei-
tures Clause – Improper Equipment
Surcharge – Prisons & Jails
Richmond County Board of Ed-
ucation v. Cowell (Lawyers Weekly
No. 15-07-0851, 13 pp.) (Chris Dillon,
J.) Appealed from Wake County Su-
perior Court (W. Osmand Smith III &
Michael Morgan, JJ.) N.C. App.
Holding: A $50 surcharge paid by
those convicted of an improper equip-
ment violation is among the penal-
ties, forfeitures and fines collected for
breach of our state’s penal laws; there-
fore, the surcharge must be returned to
the county clerk of court for disburse-
ment to the plaintiff-school board.
We affirm the trial court’s ruling
that G.S. § 7A-304(a)(4b) is uncon-
stitutional and its order that the sur-
charges collected in Richmond Coun-
ty under the statute be returned to
the Richmond County Clerk of Court.
Schools & School Boards
Open Meetings Law & Public Records
Law – Public Employees – Closed Ses-
sion Minutes – First Impression
Times News Publishing Co. v.
Alamance-Burlington Board of
Education (Lawyers Weekly No. 15-
07-0726, 11 pp.) (Richard Dietz, J.) Ap-
pealed from Alamance County Supe-
rior Court (Lucy Inman, J.) N.C. App.
Holding: Although the defendant-
school board’s closed session involved
an employee (the defendant-super-
intendent), some parts of the session
might not be shielded from disclosure.
The trial court must review the min-
utes in camera to determine whether
the entire closed session is exempt
from our public records and open
meetings laws.
We reverse the trial court’s grant of
the school board’s motion to dismiss.
Taxation
State Income Tax – Domicile – Reloca-
tion to Florida
Fowler v. North Carolina De-
partment of Revenue (Lawyers
Weekly No. 15-07-0764, 27 pp.) (Wan-
da Bryant, J.) Appealed from Wake
County Superior Court (James Gale,
J.) N.C. App.
Holding: Even though petitioners
still had their house in North Carolina
when they sold their business, since
they had already taken steps to make
Florida their permanent residence by
that time, they were no longer domi-
ciled in North Carolina and were not
required to pay income taxes on the
profit from the sale of the business.
We affirm the superior court’s
reversal of respondent’s tax assess-
ment. We also uphold the superior
court’s denial of petitioners’ motion
for attorneys’ fees.
Tort/Negligence
Auto Accident – Proximate Cause –
Stroke – Damages – Knee Injury
Fields v. Fields (Lawyers Weekly
No. 15-16-0781, 22 pp.) (Martha Geer,
J.) Appealed from New Hanover
County Superior Court (Phyllis Gor-
ham, J.) N.C. App. Unpub.
Holding: In a letter, plaintiff’s
decedent’s doctor said that “the post-
traumatic stress brought on by the
accident contributed to his Acute
Cerebrovascular accident”; however,
in his deposition, the doctor said only
that the accident possibly contributed
to the decedent’s stroke. The doctor’s
deposition is replete with statements
amounting to nothing more than that
the accident “could” have caused the
decedent’s stroke, which is insuffi-
cient to establish that the accident
was a probable cause of the stroke.
We affirm partial summary judg-
ment for defendant on the issue of
the proximate cause of the decedent’s
stroke. We vacate the award of dam-
ages and remand for a new trial on
the issue of damages.
Tort/Negligence
Breach of Fiduciary Duty – Real
Property – HUD Loan – Impact Fee
Shallotte Partners, LLC v.
Berkadia Commercial Mort-
gage, LLC (Lawyers Weekly No.
15-16-0700, 27 pp.) (Mark Davis,
J.) Appealed from Mecklenburg
County Superior Court (Richard
Boner, J.) N.C. App. Unpub.

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 19, 2015
Holding: According to the
plaintiff-developer’s complaint, de-
fendant not only acted as a lend-
er, but also dealt with the United
States Department of Housing and
Urban Development on plaintiff’s
behalf in order to procure a HUD
loan for plaintiff. At the motion-
to-dismiss stage, plaintiff’s alle-
gations were sufficient to take the
parties’ relationship outside the
typical borrower-lender relation-
ship and to allege that defendant
owed plaintiff a fiduciary duty.
We reverse the trial court’s
grant of defendant’s motion to dis-
miss plaintiff’s claims for breach
of fiduciary duty and constructive
fraud.
Tort/Negligence
Civil Practice – Statute of Limitations
– Equitable Estoppel – Motion to
Dismiss & Summary Judgment
Hance v. First-Citizens Bank
& Trust Co. (Lawyers Weekly No.
15-16-0694, 14 pp.) (Martha Geer,
J.) Appealed from Union Coun-
ty Superior Court (Christopher
Bragg & Joseph Crosswhite, JJ.)
N.C. App. Unpub.
Holding: Most of plaintiff’s
claims were dismissed on defen-
dants’ Rule 12(b)(6) motion, and
defendants were granted summary
judgment on the remaining claims.
Plaintiff cannot use evidence pro-
duced after the filing of his com-
plaint to show that the trial court
should have denied the motion to
dismiss.
We affirm the trial court’s grant
of defendants’ motion to dismiss.
Tort/Negligence
Conversion – Sales Database – Intel-
lectual Property – Trademark – LLC
Members – Landlord/Tenant
HCW Retirement & Finan-
cial Services, LLC v. HCW Em-
ployee Benefit Services, LLC
(Lawyers Weekly No. 15-15-0719,
47 pp.) (Gregory McGuire, J.) 2015
NCBC 70
Holding: Although the tort of
conversion only applies to person-
al property and not to intangible
property, since a sales database can
be printed out, plaintiff may be able
to prove that defendant converted
plaintiff’s property when defendant
allegedly terminated plaintiff’s ac-
cess to a database to which both
parties had a license and for which
plaintiff had paid its share of fees.
The parties’ summary judgment
motions are granted in part and de-
nied in part.
Tort/Negligence
Debt Collection – Real Property –
Foreclosure – Notice – Civil Practice
Foh v. Chase (Lawyers Week-
ly No. 15-03-0906, 21 pp.) (Wil-
liam Osteen Jr., J.) 1:14-cv-00928;
M.D.N.C.
Holding: Although plaintiff’s
property has already been fore-
closed on in state court, plaintiff’s
claims against two attorneys and
their law firm under federal and
state debt collection laws are not
barred by the Rooker-Feldman
doctrine.
The court denies defendants’
motion to dismiss.
Tort/Negligence
Domestic Relations – Alienation of Affec-
tions & Criminal Conversation – Civil Prac-
tice – Personal Jurisdiction – Phone Calls
Willis v. Willis (Lawyers Weekly
No. 15-16-0750, 16 pp.) (Ann Marie
Calabria, J.) Appealed from Moore
County Superior Court (Beecher
Gray, J.) N.C. App. Unpub.
Holding: Given the South Caro-
lina defendant’s participation in 140
telephone calls with a North Carolina
resident (plaintiff’s then-husband)
over the course of 40 days and defen-
dant’s engaging in sexual relations
with plaintiff’s husband in North
Carolina, our courts have personal ju-
risdiction over defendant.
We affirm the trial court’s denial of
defendant’s motion to dismiss for lack
of personal jurisdiction.
Tort/Negligence
False Arrest – Probable Cause – 911 Mis-
use – Qualified Immunity – Civil Rights
Jensen v. Jessamy (Lawyers
Weekly No. 15-16-0745, 23 pp.) (Chris
Dillon, J.) Appealed from Mecklen-
burg County Superior Court (Lisa
Bell, J.) N.C. App. Unpub.
Holding: The defendant police of-
ficer personally responded to multiple
calls for service from plaintiff regard-
ing her neighbor’s alleged violation of
a civil restraining order, and the of-
ficer advised plaintiff multiple times
not to call 911 regarding enforcement
of civil orders. Based on the officer’s
personal knowledge and his inves-
tigation of the log of plaintiff’s calls,
the officer had probable cause to seek
plaintiff’s arrest for abuse of the 911
system.
We affirm summary judgment for
defendants.
Tort/Negligence
Fraud & RICO – Attorneys – Mesothe-
lioma Settlements – Civil Practice –
Statute of Limitations
Garlock Sealing Technologies,
LLC v. Simon Greenstone Pana-
tier Bartlett, P.C. (Lawyers Weekly
No. 15-04-0874, 10 pp.) (Graham Mul-
len, J.) 3:14-cv-00116; W.D.N.C.
Holding: Plaintiffs’ complaint al-
leges that, in settling their clients’
mesothelioma claims with plaintiff
Garlock Sealing Technologies, the
defendant-attorneys knowingly and
intentionally concealed evidence of
their clients’ exposure to other asbes-
tos manufacturers’ products for the
purposes of inflating the settlement
value of their tort cases against Gar-
lock while simultaneously pursuing
or planning to pursue claims in the
bankruptcy tort system against these
other manufacturers. Since there is
no broad shield from the Racketeer
Influenced and Corrupt Organization
Act for attorney advocacy, plaintiffs’
allegations are sufficient to state both
fraud and RICO claims.
Defendants’ motions to dismiss are
denied.
Tort/Negligence
Fraud & RICO – Attorneys – Mesothe-
lioma Settlements – Civil Practice –
Statute of Limitations
Garlock Sealing Technologies,
LLC v. Shein (Lawyers Weekly No.
OPINION DIGESTS / 19
15-04-0891, 6 pp.) (Graham Mullen,
J.) 3:14-cv-00137; W.D.N.C.
Holding: The complaint alleges
that plaintiff did not discover de-
fendants’ fraud until January 2013.
Since the 2014 complaint does not al-
lege all the facts necessary to resolve
the statute-of-limitations affirmative
defense, defendants’ motion to dis-
miss plaintiff’s claims as time-barred
is premature.
Defendants’ motion to dismiss is
denied.
Tort/Negligence
Fraud – Unfair Trade Practices –
Negligent Misrepresentation – Civil
Practice – Pleading with Particularity
Topshelf Management, Inc.
v. Campbell-Ewald Co. (Law-
yers Weekly No. 15-03-0841, 21
pp.) (Thomas Schroeder, J.) 1:14-cv-
01013; M.D.N.C.
Holding: Since plaintiff’s unfair
trade practices claim is based on its
fraud claim, the unfair trade practices
claim must be pleaded with particu-
larity, too.
The complaint is dismissed with-
out prejudice.
Tort/Negligence
FTCA – Exhaustion of Administrative
Remedies – Claim Amendment –
Reset Clock
Weston v. United States (Law-
yers Weekly No. 15-03-0925, 26 pp.)
(William Osteen Jr., J.) 1:15-cv-
00084; M.D.N.C.
Holding: After plaintiff was in-
jured in an auto accident with an
employee of the Federal Aviation
Administration, a letter from her
attorney demanding $3,000 was suf-
ficient to constitute a “claim” within
the meaning of the Federal Tort
Claims Act. However, the attorney’s
subsequent letters demanding sig-
nificantly more (first $40,000, then
an additional $17,200) constituted
amendments to the original let-
ter, thus giving the FAA six more
months to respond before plaintiff’s
administrative remedies were ex-
hausted and she could file suit.
Since plaintiff did not wait the re-
quired six months before filing suit,
her complaint is dismissed without
prejudice for failing to exhaust her
administrative remedies.
Tort/Negligence
Malicious Prosecution & Abuse of
Process – Labor & Employment –
Covenant Not to Compete
I-Minerals USA, Inc. v. Zielke
(Lawyers Weekly No. 15-04-0898, 14
pp.) (Max Cogburn Jr., J.) 1:15-cv-
00094; W.D.N.C.
Holding: In support of their mali-
cious prosecution claim, plaintiffs al-
lege that defendants in this case read
a few sentences in a press release –
announcing that defendants’ former
employee, whose five-year covenant
not to compete term had expired,
was working with a new competitor –
and, without conducting any inquiry
whatsoever, filed suit and asserted
nine counts against plaintiffs, alleg-
ing various types of misconduct relat-
ing to trade secrets. Plaintiffs have
adequately alleged that defendants
lacked probable cause to file suit
against plaintiffs.
Defendants’ motion to dismiss is
denied.
Tort/Negligence
Malicious Prosecution – Malice –
Lack of Probable Cause – Conclusory
Allegations – Municipal – Labor &
Employment
Richmond v. City of Asheville
(Lawyers Weekly No. 15-16-0699, 15
pp.) (Linda Stephens, J.) Appealed
from Buncombe County Superior
Court (Richard Doughton, J.) N.C.
App. Unpub.
Holding: Plaintiff’s conclusory as-
sertion – that, since she had opposed
higher pay for those who charged her
with obstruction of justice and mak-
ing false statements to the State Re-
tirement System, defendants must
have acted out of malice when they
charged her with these offenses – was
insufficient to make out a prima facie
claim of malicious prosecution.
We affirm summary judgment for
defendants.
Tort/Negligence
Medical Malpractice – Civil Practice
– Evidence – Expert Witnesses –
Pleadings Amendment
Kearney v. Bolling (Lawyers
Weekly No. 15-07-0663, 23 pp.) (Rich-
ard Dietz, J.) Appealed from Forsyth
County Superior Court (Hugh Lewis,
J.) N.C. App.
Holding: Since plaintiff’s Rule
9(j) expert did not review her lack-of-
consent claim, the trial court did not
abuse its discretion when it ruled that
plaintiff could not present evidence as
to lack of informed consent.
We find no error in the trial court’s
rulings in favor of defendant.
Tort/Negligence
Wrongful Death – Municipal – Sov-
ereign Immunity – Christmas Parade
– Insurance – Street Maintenance –
Restaurant Lighting
Parker v. Town of Erwin (Law-
yers Weekly No. 15-07-0885, 50 pp.)
(Linda McGee, C.J.) Appealed from
Harnett County Superior Court
(Thomas Lock, J.) N.C. App.
Holding: Although plaintiffs’ mi-
nor decedent was killed by a driver
who was leaving the defendant-town’s
Christmas parade, the court need not
determine whether the town’s spon-
sorship of a Christmas parade was
a governmental or proprietary func-
tion. The specific acts or omissions
alleged against the town defendants
were recognized governmental func-
tions: providing a law enforcement
presence, regulating traffic and decid-
ing which roads to keep open for ve-
hicular traffic and which roads should
not continue to be open for such trav-
el, approving or denying permits, and
providing ambulance services. As
such, plaintiffs’ claim of negligence
against the town defendants is barred
by sovereign immunity.
We affirm the trial court’s ruling
that the town did not waive sover-
eign immunity. The trial court erred
by denying the town defendants’
motions to dismiss plaintiffs’ negli-
gence claim. We remand for findings
of fact as to whether the alleged vio-
lations of G.S. § 160A-296(a) caused
the vehicle to strike the decedent.
We affirm the trial court’s dismissal
of plaintiffs’ claims against defen-
dant Morris.
20 / OPINION DIGESTS N O R T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 19, 2015

Tort/Negligence
Wrongful Death – Prisons & Jails – In-
mate’s Heart Attack – Witness Credibility
Crisp v. N.C. Department of
Public Safety (Lawyers Weekly
No. 15-08-0720, 17 pp.) (Linda
Cheatham, Commissioner) On ap-
peal from a Decision & Order filed
by Deputy Commissioner J. Brad
Donovan. I.C. No. TA-23089.
Holding: Three inmates – ap-
parently with no collusion and
nothing to gain – testified simi-
larly that a correctional sergeant
refused the decedent’s requests
for help when he began suffering
chest pain. While the sergeant
denied that (1) the decedent ever
approached her requesting emer-
gency medical treatment and (2)
she refused to provide necessary
assistance, it appears the sergeant
has much to gain by her denial. Ac-
cordingly, the Industrial Commis-
sion finds that the inmates’ testi-
mony is credible and the sergeant’s
is not.
We affirm the deputy commis-
sioner’s determination of liability
but modify the amount awarded to
$81,200.
Tort/Negligence
Wrongful Imprisonment – Trusts
& Estates – Posthumous Pardons –
Wilmington Ten
Estate of Jacobs v. State
(Lawyers Weekly No. 15-07-0763,
12 pp.) (Lucy Inman, J.) Appealed
from the Industrial Commission.
N.C. App.
Holding: The plaintiff-estates’
decedents received their pardons
posthumously; therefore, the es-
tates are not entitled to recover for
their decedents’ wrongful convic-
tions and imprisonment.
We affirm the Industrial Com-
mission’s denial of plaintiffs’
claims.
Trusts & Estates
Attorney’s Fees – Reasonableness –
Clerk’s Authority – Untimely Claim
In re Taylor (Lawyers Weekly
No. 15-07-0660, 18 pp.) (Mark Davis,
J.) Appealed from Cumberland Coun-
ty Superior Court (Beecher Gray, J.)
N.C. App.
Holding: G.S. § 28A-13-3(19) au-
thorizes an estate’s personal represen-
tative to hire attorneys, but no statute
specifically addresses the payment of
fees to those attorneys. Pursuant to
G.S. § 28A-23-3, clerks of court have
the authority to allow “reasonable
sums for necessary charges and dis-
bursements incurred in the manage-
ment of the estate,” and our Supreme
Court has expressly recognized that
attorneys’ fees incurred in the admin-
istration of an estate fall within this
statutory provision. Therefore, clerks
of court have the authority to review
attorneys’ fee petitions for reasonable-
ness pursuant to their power to allow
reasonable sums for necessary charg-
es and disbursements incurred in the
management of an estate.
We vacate the superior court’s
award of the entire amount of at-
torneys’ fees requested ($91,340.77)
based on the court’s conclusion that
the clerk of court lacked the author-
ity to determine the reasonableness
of the estate’s attorneys’ fees; how-
ever, we remand for further findings
in support of the clerk’s order limiting
the fees to $25,211.31. We affirm the
superior court’s ruling that Pamela
Blackmore’s claim for funeral expens-
es was not timely filed.
Trusts & Estates
Wills – Joint Bank Accounts – Power
of Attorney
Jordan v. Jordan (Lawyers Celebrating 35 years of service.
Weekly No. 15-16-0746, 7 pp.) (Don- Wilkes v. City of Greenville
na Stroud, J.) Appealed from Union (Lawyers Weekly No. 15-07-0947, 22
County Superior Court (Anna Mills pp.) (Mark Davis, J.) Appealed from
Wagoner, J.) N.C. App. Unpub. the Industrial Commission. N.C. App.
Holding: Although the decedent-
father’s will divided his estate equally
among his four children, it was his
prerogative to create (on the same
day that he executed his will) bank
accounts with right of survivorship
with his defendant-son. While the
plaintiff-sons presented evidence that
their father was on medications, they
did not show what effect the medica-
tions had, and defendant presented
evidence from the lawyer and a bank
employee that the father appeared
competent.
We affirm summary judgment for
defendant.
Workers’ Compensation
Asbestosis & Mesothelioma – Self-Insur-
ance Security Association – Last Injuri-
ous Exposure – Employer’s Bankruptcy
Ketchie v. Fieldcrest Cannon,
Inc. (Lawyers Weekly No. 15-07-
0942, 11 pp.) (Lucy Inman, J.) Ap-
pealed from the Industrial Commis-
sion. N.C. App.
Holding: Although our interpreta-
tion of G.S. § 97-130(4) bars recovery
by workers who have no other re-
course due to their employer’s bank-
ruptcy, the plain language of the
statute means that workers who suf-
fer from occupational diseases may
not recover from the North Carolina
Self-Insurance Security Association
if they were last injuriously exposed
to asbestos before their self-insured
employer joined the Security Associa-
tion.
We affirm the Industrial Commis-
sion’s denial of plaintiffs’ claims.
Workers’ Compensation
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Holding: Although plaintiff’s doc-
tor released him to sedentary work,
the Industrial Commission found
that plaintiff was 60 years old, had
only ever performed physical labor,
had difficulty reading, and had an IQ
of 65. Plaintiff’s pre-existing personal
characteristics made it futile for him
to seek sedentary employment.
We reverse the Commission’s rul-
ing that plaintiff was no longer tem-
porarily totally disabled. We vacate
and remand the Commission’s rul-
ing that plaintiff was not entitled to
medical expenses for treatment of his
anxiety and depression.
Workers’ Compensation
Subject Matter Jurisdiction – Employment
Contract – Transfer – First Impression
Burley v. U.S. Foods, Inc. (Law-
yers Weekly No. 15-06-0914, 15 pp.)
(Barbara Jackson, J.) (Robin Hudson,
J., joined by Cheri Beasley & Sam Er-
vin IV, JJ., dissenting) Appealed from
the Industrial Commission. On appeal
from the Court of Appeals. N.C. S. Ct.
Holding: Plaintiff’s employment
contract was entered into in South
Carolina, and he worked in South
Carolina and Georgia. Therefore,
North Carolina law does not govern
the contract – and our Industrial
Commission has no jurisdiction over
plaintiff’s workers’ compensation
claim – despite the fact that super-
vision of plaintiff’s employment was
subsequently relocated from South
Carolina to North Carolina.
We reverse the Court of Appeals’
ruling that our Industrial Commis-
sion has jurisdiction over plaintiff’s
workers’ compensation claim.
Workers’ Compensation
original
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Vocational logo
Rehabilitation – Refusal to
Cooperate – Suspension – Presumption
of Continuing Disability – Law of the Case
Moore v. Mohawk Industries
(Lawyers Weekly No. 15-16-0784,
14 pp.) (Wanda Bryant, J.) Appealed
from the Industrial Commission. N.C.
App. Unpub.

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