Judge, Court of Appeals of North Carolina · Born 1951
In Re Jem, Jr.
Court of Appeals of North Carolina · 2012-06-19 · cited 5×
The case involved the Surry County Department of Social Services' motion to terminate a father's parental rights to his son, J.E.M., Jr., on grounds including neglect and willful failure to pay a reasonable portion of the cost of care, after the child had been adjudicated neglected and dependent and placed in DSS custody due to the father's inadequate housing, drug issues, and inability to provide care. The trial court terminated the father's rights following a hearing at which he did not contest the allegations in the motion, relying on a social worker's verification of the petition's facts plus evidence of the father's minimal engagement with his case plan. The North Carolina Court of Appeals affirmed, holding that the evidence supported findings of past neglect and a probability of repetition—based on the father's failure to visit the child for five months, limited completion of parenting classes, and part-time employment—along with his total nonpayment of support, and that termination was in the child's best interest. The court rejected arguments that additional current-condition evidence was required or that the procedure was improper, noting the statutory framework for such proceedings.
family law
Warren v. North Carolina Department of Crime Control & Public Safety
Court of Appeals of North Carolina · 2012-06-19 · cited 28×
In Warren v. North Carolina Department of Crime Control & Public Safety, the North Carolina Court of Appeals reviewed the termination of a State Highway Patrol sergeant for unacceptable personal conduct after he drove a patrol vehicle to a party with an open bottle of vodka in the trunk and consumed alcohol beforehand, leading to his arrest. An administrative law judge found insufficient evidence for just cause to terminate but that lesser discipline was warranted; the State Personnel Commission disagreed and upheld dismissal, while the superior court reversed, concluding the conduct did not justify termination and remanding for lesser discipline. The Court of Appeals vacated the trial court's order and remanded, holding that the superior court failed to make required findings of fact resolving conflicts—such as whether the sergeant drove with any alcohol in his system—and did not properly apply the just cause framework requiring that the specific misconduct warrant the specific sanction imposed.
labor & employmentprocedure
State v. Montgomery
Court of Appeals of North Carolina · 2012-05-15
In State v. Montgomery, the defendant was convicted of two counts of first-degree murder after shooting and killing Charlotte-Mecklenburg police officers Jeffrey Shelton and Sean Clark during an unrelated confrontation following a domestic dispute response in 2007; he received consecutive life sentences without parole. On appeal, Montgomery challenged the trial court's rulings that he was competent to stand trial, the admission of evidence regarding the victims' good character, and the prosecutor's closing arguments about his actions and music on the night of the shootings. The North Carolina Court of Appeals affirmed the convictions, holding that the competency determination was supported by expert reports indicating the defendant's silence and non-cooperation were volitional and that he could understand the proceedings and assist in his defense if he chose; the victim character evidence did not rise to plain error; and the State's arguments drew reasonable inferences from the evidence presented and were not so grossly improper as to require the trial court to intervene.
criminal lawprocedure
State v. Houseright
Court of Appeals of North Carolina · 2012-05-15 · cited 9×
In State v. Houseright, the defendant appealed his convictions on multiple counts of first-degree rape, first-degree sexual offense, statutory sex offense, and statutory rape involving a child victim (B.F.), after a jury trial at which two other girls testified about similar sexual conduct by the defendant. The North Carolina Court of Appeals held that the trial court properly denied the motion to dismiss one statutory sex offense count, correctly admitted evidence of the defendant’s uncharged sexual acts with another girl under Rule 404(b), and did not commit plain error by failing to exclude brief testimony about the defendant’s conduct with a third girl. The court reasoned that the victim’s testimony describing digital penetration before each incident of intercourse supplied substantial evidence for the challenged count when viewed in the light most favorable to the State; that the other acts were relevant to show plan, intent, or absence of mistake and were not offered solely to prove propensity; and that any error in admitting the brief reference to a third girl did not have a probable impact on the verdict given the substantial uncontested evidence of guilt. The court therefore found no error and upheld the convictions and sentences.
criminal lawprocedure
In Re Cornblum
Court of Appeals of North Carolina · 2012-04-17 · cited 5×
This case involved twelve consolidated North Carolina foreclosure actions under N.C. Gen. Stat. § 45-21.16, in which borrowers (the Cornblums and Longbranch Properties) defaulted on promissory notes secured by deeds of trust and sought to compel arbitration of the foreclosures pursuant to arbitration clauses in those deeds. The superior court granted the motions to compel, the arbitrator ruled for the lenders on all claims including the statutory foreclosure requirements, and the court confirmed the award. The Court of Appeals held that the superior court lacked subject matter jurisdiction to order arbitration or confirm the award in a § 45-21.16 proceeding, because foreclosure actions are special statutory proceedings that cannot be diverted to arbitration and jurisdiction cannot be created by party consent or waiver. However, the court dismissed as moot the borrowers' request to void the completed foreclosure sales, since the sales had already occurred, the parties' property rights were fixed, and no timely injunction had been obtained under N.C. Gen. Stat. § 45-21.34. The judgment confirming arbitration was reversed, but the transfers of title resulting from the sales were left undisturbed.
propertyprocedure
ESTATE OF BROWNE v. Thompson
Court of Appeals of North Carolina · 2012-04-03 · cited 14×
In Estate of Browne v. Thompson, seven Wachovia shareholders sued the company, its former directors, Wells Fargo, and auditor KPMG, alleging that the defendants concealed the risks and losses from Wachovia’s 2006 acquisition of Golden West Financial, issued false public statements about the bank’s financial health, and thereby induced the plaintiffs to retain their shares until the stock collapsed in 2008; the plaintiffs asserted direct claims for negligence, breach of fiduciary duty, and negligent misrepresentation. The North Carolina Court of Appeals affirmed the trial court’s dismissal of the complaint under Rule 12(b)(6). The court held that the claims were barred by the rule in Barger v. McCoy Hillard & Parks that shareholders may not bring individual actions for injuries that diminish corporate stock value, because the plaintiffs had not alleged either a special duty owed to them personally or an injury distinct from that suffered by the corporation and other shareholders. The court further ruled that North Carolina does not recognize “holder” claims for losses from retaining stock in reliance on misrepresentations and that it was bound by Barger rather than contrary Delaware authority. The same reasoning required dismissal of the negligent-misrepresentation claim against KPMG.
business & regulatoryproceduretorts & liability