John Douglas McCullough

In Mosteller v. Stiltner, plaintiff Nicole Mosteller sued defendant Gary Stiltner for child custody and support of their minor daughter, and Stiltner filed a counterclaim seeking the same relief. During the case, Mosteller served a subpoena on appellant Susan Indenbaum, a licensed clinical social worker who had provided therapy to Stiltner, seeking her deposition testimony and all treatment records. Indenbaum moved for a protective order and to quash the subpoena, citing the social worker-patient privilege under N.C. Gen. Stat. § 8-53.7, but the trial court denied the motions and ordered compliance. Indenbaum appealed, but the North Carolina Court of Appeals dismissed the appeal, holding that she lacked standing because the privilege belongs exclusively to the patient, who must assert it, and the record showed that Stiltner had neither objected to the disclosure nor appealed the order. The court reasoned that the social worker privilege operates identically to the physician-patient privilege, which is strictly construed, belongs solely to the patient, and may be waived by the patient’s failure to object.

family lawprocedure

In State v. Sharpless, defendant Andre Sharpless was convicted of felony first-degree murder, attempted robbery with a dangerous weapon, first-degree burglary, and assault with a deadly weapon with intent to kill inflicting serious injury after a November 2009 home invasion in Wilmington in which victim Tarell Phillips was fatally shot and his friend Kamala Dowd was wounded. The trial court sentenced Sharpless to life without parole on the murder count plus consecutive terms on the other offenses. On appeal, the North Carolina Court of Appeals reversed the convictions and ordered a new trial, holding that the trial court abused its discretion by admitting the substance of an anonymous hearsay telephone tip—describing Sharpless as part of a trio committing a narcotics robbery—after the defense had cross-examined officers about the initial police description and lack of suspicion. Although the court recognized that the defendant may have opened the door to limited rebuttal evidence showing why police focused on him, it concluded that the State went too far by introducing the prejudicial details of the tip for their truth, creating a substantial likelihood that the jury would have reached a different verdict without that evidence.

criminal lawprocedure

In Fisher v. Town of Nags Head, oceanfront property owners sued the Town after it sent them a notice offering a voluntary easement for a one-time beach nourishment project and stating it would pursue eminent domain under Chapter 40A if they refused, claiming the proposed easement was overbroad, the notice was statutorily deficient, just compensation was not offered, and the Town lacked authority under the public trust doctrine. The trial court granted the Town’s motion for judgment on the pleadings, and the Court of Appeals affirmed. The court held that the notice satisfied N.C. Gen. Stat. § 40A-40 and caused no prejudice, that the Town’s estimate of zero compensation did not violate the constitution because project benefits could offset any taking with disputes reserved for the condemnation hearing, and that N.C. Gen. Stat. § 40A-3(b1)(10) expressly authorizes municipalities to exercise eminent domain for beach erosion control regardless of public trust arguments.

propertyprocedureenvironment

In State v. Fowler, defendant Tavaris Lamont Fowler was stopped for speeding, arrested for driving with a revoked license after a traffic stop, and subjected to searches of his vehicle and person that uncovered marijuana and crack cocaine hidden in his underwear; he moved to suppress the cocaine evidence, arguing the searches amounted to an unconstitutional strip search lacking probable cause and exigent circumstances under precedents like State v. Battle. The trial court denied the motion, and Fowler pled guilty to felony cocaine possession while reserving his right to appeal. The North Carolina Court of Appeals affirmed, holding that the searches were reasonable because officers had probable cause from a corroborated confidential informant tip and marijuana in the vehicle, exigent circumstances were supported by the record, and the searches occurred discreetly at night in a shielded location away from public view rather than roadside.

criminal lawprocedure

The case concerned Cabarrus County’s appeal of the North Carolina Property Tax Commission’s ruling that reversed the local Board’s denial of DHMRI’s late 2008 application for a property tax exemption on its research facility and denied the County’s motion to dismiss the appeal. The Court of Appeals affirmed the PTC’s decision. It held that the PTC acted within its authority by addressing both the motion and the merits at the same hearing, that the Board’s denial of the late application was arbitrary and capricious because DHMRI qualified for the exemption, the County had long known of its nonprofit status, and the Board had approved other untimely applications that year, and that the record supported granting the exemption without need for further proceedings.

propertytaxesprocedure

In State v. Foye, defendant Robin Livice Foye was convicted of driving while intoxicated and driving while license revoked after police found his damaged car in a ditch, observed his injuries and high blood-alcohol level, and obtained his admission that he had driven following an incident at a club. Foye appealed, arguing that the State failed to prove he was the driver and that the trial court’s supplemental instruction on reasonable doubt coerced the jury. The North Carolina Court of Appeals affirmed the convictions, holding that the corpus delicti was established by corroborative evidence including bloodstains in the vehicle, defendant’s injuries matching the steering wheel, his inconsistent statements, and a .18 BAC. The court further held that the reasonable-doubt instruction did not constitute plain error, as it did not alter the burden of proof or coerce a verdict when viewed in the context of the entire proceedings and additional evidence requested by the jury.

criminal lawprocedure

In this North Carolina family law case, plaintiff Robert Clements sought child support from defendant Donna Clements following their divorce and resolution of custody issues; defendant, who had been adjudicated incompetent, moved to dismiss the claim on grounds that the district court lacked subject matter jurisdiction because the Clerk of Superior Court holds authority over matters affecting an incompetent person's estate. The trial court denied the motion, finding it had jurisdiction, and defendant appealed; plaintiff then moved to dismiss the appeal as interlocutory. The Court of Appeals denied plaintiff's motion to dismiss the appeal and affirmed the trial court's ruling, holding that the district court and Clerk have concurrent jurisdiction over child support even when it implicates an incompetent parent's estate. The court reasoned that the district court's original jurisdiction, combined with its duty under the child support guidelines to consider the parties' estates and the child's needs, allows it to address the issue, as the Clerk does not possess exclusive authority and a minor child receives equivalent protections to an incompetent ward.

family lawprocedure

The case concerned whether Irene Pait, who had received workers’ compensation benefits since 1994 for a compensable occupational lung disease caused by workplace exposure to formalin, was totally and permanently disabled. After the North Carolina Insurance Guaranty Association assumed the claim and offered a Form 26 agreement stipulating total and permanent disability (which Pait refused), the defendants requested a hearing to obtain a final disability determination, primarily to start the statute of limitations on possible death benefits. The Full Commission found the evidence insufficient to establish permanent total disability and denied both sides’ requests for attorney’s fees under N.C. Gen. Stat. § 97-88.1. The Court of Appeals reversed the Commission’s disability ruling, holding that its findings of temporary or non-permanent disability were unsupported by any competent evidence, as the treating physician’s testimony established that Pait’s condition was both total and permanent; it remanded for additional findings. The court affirmed the denial of attorney’s fees to both parties, concluding that the Commission did not abuse its discretion given the unusual posture in which the defendants, rather than the plaintiff, sought the permanent-total determination.

labor & employment

In State v. Aguilar-Ocampo, the defendant was convicted of trafficking cocaine by possession and conspiracy to sell cocaine after participating in a controlled drug transaction captured on audio-video recording; on appeal, he challenged the trial court's admission of a revised Spanish transcript and related testimony, as well as its refusal to give his requested special jury instruction on the knowledge element of the offenses. The Court of Appeals held that the trial court erred by failing to recognize a discovery violation regarding the late-disclosed translator but found no abuse of discretion in admitting the evidence and no prejudice to the defendant. It further concluded that the trial court's standard instructions adequately covered the substance of the requested knowledge instruction, which required the jury to find that the defendant was aware of the cocaine and intentionally participated in the crimes. The court therefore affirmed the convictions, determining that the defendant received a fair trial free from prejudicial error.

criminal lawprocedure

In Best Cartage, Inc. v. Stonewall Packaging, LLC, a trucking company sued Stonewall Packaging after it breached an Exclusive Transportation Agreement for hauling cardboard sheets, seeking damages for unpaid invoices and for trucks purchased in reliance on the deal; the plaintiff added claims against Jackson Paper Manufacturing Company alleging that Jackson was in a partnership or joint venture with Stonewall, or that the corporate veil should be pierced to hold Jackson liable. The trial court granted Jackson’s motion to dismiss all claims under Rule 12(b)(6). The North Carolina Court of Appeals affirmed in part and reversed in part. It held that the complaint sufficiently alleged the elements of partnership by estoppel, joint venture, and de facto partnership to survive dismissal, but that the plaintiff failed to plead the wrongdoing or injustice required to support piercing the corporate veil. The court therefore allowed the first three claims to proceed while upholding dismissal of the veil-piercing claim.

business & regulatoryprocedure

In Shera v. N.C. State University Veterinary Teaching Hospital, plaintiffs sued the veterinary hospital under the Tort Claims Act after their dog Laci died from a misplaced feeding tube during treatment for organ disease, seeking damages based on the dog's intrinsic value and the human-animal bond rather than market value. The North Carolina Court of Appeals affirmed the Industrial Commission's award of $3,105.72, which included only the cost of Laci's final veterinary care plus $350 as the replacement cost of a similar Jack Russell Terrier. The court reasoned that North Carolina law treats companion animals as property, with damages for their loss generally measured by market or replacement value; although an "actual or intrinsic value" measure exists in limited contexts, it has not been applied to compensate for emotional bonds with pets and cannot be expanded by the court without legislative or Supreme Court action.

propertytorts & liability

In State v. Lee, the defendant was convicted after a jury trial of attempted first-degree murder, attempted robbery with a dangerous weapon, and assault with a deadly weapon with intent to kill inflicting serious injury, based on a 2009 shooting at a North Carolina convenience store during a dispute over a bad drug deal, in which the defendant entered with an AK-47, fired multiple shots at the owner, and later admitted his intent to kill and rob him. On appeal, the defendant argued the trial court erred by denying motions to dismiss for a fatal variance in the indictment, insufficient evidence, and speedy trial violations, as well as by ordering him shackled before the jury and giving a coercive jury instruction. The North Carolina Court of Appeals affirmed, holding there was no prejudicial error: the difference between the alleged handgun and proven rifle was not material and caused no prejudice; any shackling error was harmless given the curative instruction and overwhelming evidence; the delay did not result from state neglect or cause actual prejudice; the instruction was not coercive under the totality of circumstances; and the state's evidence, including witness testimony and the defendant's statements, was sufficient on all elements and his identity as the perpetrator.

criminal lawprocedureguns

In State v. Watkins, defendant Keenan Montrell Watkins was convicted after a jury trial of first-degree burglary, conspiracy to commit first-degree burglary, possession of a weapon of mass destruction, common law robbery, and first-degree kidnapping, arising from events on May 9, 2009, in which he and an accomplice attempted to enter a Charlotte townhome and later commandeered a vehicle at gunpoint from a UNC Charlotte student. On appeal, the North Carolina Court of Appeals held that the trial court properly denied the motion to dismiss the common law robbery charge, admitted the victim's out-of-court and in-court identifications without plain error, and awarded restitution supported by title and purchase documents showing the car's $3,790 value. However, the court vacated the first-degree burglary conviction and remanded for entry of judgment on felonious breaking or entering, because the State's evidence showed only that the perpetrators broke a window and door glass without any actual entry into the dwelling while the resident was inside. The court reasoned that the robbery conviction was supported by evidence that the defendant pointed a gun and took control of the vehicle, while the identifications and restitution rested on adequate trial testimony and documentation.

criminal lawproceduregunsproperty

In Coffey v. Weyerhaeuser Co., the plaintiffs—adult children of former Weyerhaeuser employee Dennis Barber—appealed the North Carolina Industrial Commission’s denial of their claim for death benefits under N.C. Gen. Stat. § 97-38 following Barber’s 2009 death from asbestosis. Barber had settled his workers’ compensation claim with the employer in 1999, receiving lifetime disability benefits, with the settlement agreement (approved by the Commission) designating the approval date as the final determination of disability and expressly reserving only a potential future claim for death benefits. The court affirmed the Commission’s ruling that the claim was untimely, holding that the statute requires death to occur within six years of the injury or two years of the final disability determination, whichever is later; here, Barber’s death occurred more than six years after his 1998 disability date and more than two years after the 1999 approval, so the statutory window had closed. The court rejected arguments that the 1999 agreement did not constitute a final determination or that the time limits were unconstitutional, emphasizing that the statute’s plain terms control and any policy concerns must be addressed by the legislature.

labor & employmentprocedure

In State v. Brown, defendant Brandon Jason Brown appealed the denial of his motion to suppress evidence of impairment obtained during a traffic stop by Sgt. Griffin of the Henderson County Sheriff’s Department. The stop occurred hours after an armed robbery at a nearby Dollar General when the officer, who had no vehicle description or tag number for any getaway car, observed a vehicle stop briefly on the highway and then accelerate, leading him to suspect it might be picking up the suspects on foot. The North Carolina Court of Appeals reversed the trial court’s denial of the motion, holding that the stop violated the Fourth and Fourteenth Amendments because the officer lacked the reasonable, articulable suspicion required for a Terry stop and instead relied on an unparticularized hunch, distinguishing the facts from cases where officers had more specific information tying a vehicle to recent criminal activity.

criminal lawprocedurecivil rights

In State v. Sullivan, Darrell Lamar Sullivan, Jr. was convicted after a jury trial of three counts of robbery with a firearm and one count of conspiracy to commit robbery with a firearm, based on evidence that he and two accomplices entered a residence, used a gun to force occupants against a wall, and took items including an Xbox, camera, iPod, and other property. On appeal, Sullivan challenged the denial of his motion for appropriate relief, the sufficiency of the evidence for the armed robbery charges, the refusal to instruct the jury on the lesser-included offense of common law robbery, and the $640 restitution order. The North Carolina Court of Appeals found no error in the denial of the motion for appropriate relief, no prejudicial error in the trial proceedings including the sufficiency of evidence and jury instructions under an acting-in-concert theory, but vacated the restitution award. The court reasoned that the evidence clearly established use of a firearm and supported the convictions, while the restitution amount lacked supporting evidence or stipulation at trial or sentencing, requiring remand for a new hearing on that issue alone.

criminal lawgunsprocedureproperty

In Bell v. Mozley, a South Carolina resident sued another South Carolina resident in North Carolina superior court for alienation of affections and criminal conversation, alleging that the defendant had an affair with the plaintiff's wife. The only alleged contact between the defendant and the plaintiff's wife in North Carolina was a single 2006 New Year's visit to the plaintiff's second home in Blowing Rock; all other conduct and witnesses were located in South Carolina, which has abolished these torts. The trial court denied the defendant's motions to dismiss for lack of personal jurisdiction, but the North Carolina Court of Appeals reversed, holding that the exercise of jurisdiction would violate due process. The court reasoned that the defendant's occasional business trips to North Carolina did not constitute sufficient minimum contacts with the state for these claims, that litigating in North Carolina would be inconvenient, and that the suit amounted to forum shopping given the overwhelming connections to South Carolina.

family lawproceduretorts & liability

In this juvenile delinquency case, the State alleged that J.J., Jr. committed a first-degree sexual offense against a child under 13; after a probable cause hearing and a transfer hearing, the trial court retained the case in juvenile court, found the juvenile guilty beyond a reasonable doubt of attempted first-degree sex offense, adjudicated him delinquent, and entered a Level 3 disposition committing him to a youth development center until age 18. The juvenile appealed, arguing that the trial court violated the Juvenile Code and due process by failing to hold separate adjudicatory and dispositional hearings and by denying release pending appeal without findings. The North Carolina Court of Appeals held that the statutes permit the court to move directly from probable cause and transfer hearings into adjudication and disposition without separate proceedings, that the juvenile's rights were adequately protected, and that no prejudicial error occurred in the process itself. However, because the adjudication order, disposition order, and order denying release pending appeal lacked the written findings of fact required by statute, the court remanded the case for entry of those findings (while allowing the trial court to take additional evidence if needed).

criminal lawfamily lawprocedurecivil rights

In State v. Jones, the defendant was convicted after a jury trial of misdemeanor breaking and entering, assault on a female, and assault on a child under twelve, based on evidence that he entered a home through a window, interacted with three girls inside, grabbed them, forced one to touch his chest, and left a phone number before departing in a distinctive truck. On appeal, the defendant argued that the trial court committed plain error by admitting photo identification evidence obtained from a school principal, claiming it was unduly suggestive and violated due process, and that he received ineffective assistance of counsel. The North Carolina Court of Appeals held that there was no error, concluding that the identification procedure was not impermissibly suggestive because the principal knew the defendant personally and the process did not create a substantial likelihood of misidentification, while also finding that trial counsel provided effective representation. A concurring opinion agreed with the result but argued that the unpreserved constitutional claims should have been dismissed rather than reviewed on the merits.

criminal lawprocedure

In State v. Collins, defendant appealed his convictions for possession of marijuana and drug paraphernalia arising from a 2008 controlled buy in which a confidential informant purchased marijuana from him while wearing a hidden video camera. The trial court admitted the silent videotape as substantive evidence after police officers authenticated it, and it allowed an officer’s lay opinion testimony identifying the defendant in the footage based on prior dealings; the jury convicted after viewing the tape. The Court of Appeals found no error, holding that the videotape met authentication requirements under North Carolina law governing recordings offered for substantive purposes and that the officer’s identification testimony constituted permissible lay opinion because his familiarity with the defendant was greater than the jury’s and was not prejudicial. The court distinguished precedent requiring more extensive prior contact and concluded the evidence as a whole supported the verdicts.

criminal lawprocedure