Albert S. Thomas

This case was a wrongful death action alleging medical malpractice, in which the plaintiff obtained an extension of the two-year statute of limitations under the pre-amendment version of Rule 9(j) from a non-resident superior court judge assigned to the county and then filed the complaint within the extended period. The trial court granted defendants' Rule 12(b)(6) motion and dismissed the suit, finding the extension invalid because Rule 9(j) required action by a resident judge of the county where the cause arose. The Court of Appeals reversed, holding that N.C. Gen. Stat. § 7A-47 confers on an assigned non-resident judge the same powers as a resident judge for purposes of the extension motion, that the complaint was therefore timely, and that one superior court judge may not overrule the order of another in the same action.

proceduretorts & liabilityhealthcare

In this case, two companies that operated video game arcades sued the City of Kings Mountain after it amended its zoning ordinance to restrict the location, design, and use of video gaming machines, requiring nonconforming arcades to obtain conditional use permits or cease operations after a six-month grace period. The plaintiffs filed a declaratory judgment action seeking to invalidate the amendment and moved for a preliminary injunction, which the trial court denied on the grounds that the plaintiffs had not shown a likelihood of success on the merits or irreparable injury. The Court of Appeals dismissed the appeal as interlocutory, holding that the order did not affect a substantial right because the ordinance was not yet in effect when the motion was heard, the plaintiffs could continue operating their businesses with limits on video machines, and no deprivation of a vested right or other substantial interest would occur before final judgment.

business & regulatoryprocedure

The case involved homeowners who purchased a newly constructed house and later signed a limited warranty agreement containing an arbitration clause; they sued the builder for breach of implied and express warranties, misrepresentations, and related claims arising from alleged construction defects. The trial court denied the builder's motion to stay the proceedings pending arbitration, concluding that the claims did not arise under the warranty agreement. The Court of Appeals reversed that decision, holding that the arbitration provision applied because the claims were connected to rights and obligations under the agreement and arbitration was a condition precedent to litigation. The court found the agreement's language encompassed the disputes despite arguments that some claims predated the warranty or involved implied rights independent of it.

propertyprocedure

The case involved a social worker employed by the Lenoir County Department of Social Services who was dismissed after unauthorized absences from work, which the agency treated as a voluntary resignation without notice under state personnel rules. She appealed the dismissal through administrative channels, alleging due process violations, bias by the decision-maker, use of matters outside the record, and arbitrary or erroneous decisions, and sought reinstatement. The Court of Appeals affirmed the superior court's order upholding the termination, reasoning that the plaintiff had not assigned error to or argued key jurisdictional issues decided against her below, which were sufficient to bar her claims, and that her remaining assignments of error lacked merit.

labor & employmentprocedure

The case involved multiple plaintiffs, including river associations, riverkeepers, recreational users, riparian landowners, and commercial users, who sued hog farming companies and their officers for improper handling of swine waste that allegedly polluted the Neuse, New, and Cape Fear Rivers. The plaintiffs sought a court-approved trust to fund full remediation of the waterways and an injunction prohibiting the use of swine lagoons and sprayfields, but they did not seek individual compensation. The trial court dismissed the claims under Rules 12(b)(1) and 12(b)(6) for lack of standing and subject matter jurisdiction. The Court of Appeals affirmed, holding that the plaintiffs failed to demonstrate the individualized injury required for standing and that only the state, through the Attorney General, may pursue non-individualized public remedies for harm to public trust waters under the public trust doctrine.

environmentprocedure

In State v. Diaz, defendants Ruben Aburto Diaz and Jose Juan Espinoza Lopez appealed their convictions for trafficking in cocaine by possessing over 400 grams, possession with intent to sell or deliver cocaine, and conspiracy to traffic in cocaine, for which each received sentences of 175 to 219 months in prison. The case arose from a police investigation triggered by a confidential tip, leading to surveillance at a Greensboro motel, recovery of drug-related items from trash, discovery of multiple kilograms of cocaine, and arrests of the defendants and co-conspirators. The North Carolina Court of Appeals applied the substantial evidence standard to review the denial of motions to dismiss and concluded that the evidence, including the defendants' involvement in transporting, storing, and discussing the sale of the cocaine, was sufficient to support each element of the charged offenses and identify the defendants as perpetrators. The court therefore found no error and upheld the convictions.

criminal law

This case involved a medical negligence lawsuit brought by parents Sandra and Alex Suarez, on behalf of their son Anderson and individually, against obstetricians Dr. James Wotring, Dr. Scott Chatham, and Catawba Women's Center for injuries sustained during Anderson's birth in 1995. The plaintiffs alleged that the defendants failed to properly manage shoulder dystocia, used excessive force on the baby's head, and ignored risks from the baby's large size, resulting in permanent Erb's Palsy. After a jury trial, the trial court entered judgment for the defendants and denied the plaintiffs' motion for a new trial. The Court of Appeals affirmed, holding that the trial court did not err in its evidentiary rulings regarding deposition testimony and expert witnesses, and that the evidence was sufficient to support the verdict because the jury could credit the defendants' medical notes and expert testimony over the plaintiffs' account.

torts & liabilityhealthcareprocedure

In Paquette v. County of Durham, a Caucasian probationary librarian sued Durham County and three supervisors for wrongful discharge in violation of public policy, race discrimination under Title VII, and unpaid wages, claiming her termination stemmed from ethnic bias and that she was underpaid for acting manager duties and overtime. The trial court dismissed the complaint under Rules 12(b)(1), (2), and (6), citing sovereign immunity and lack of a contractual right to employment. The Court of Appeals affirmed dismissal of the wrongful discharge tort claims because the complaint failed to allege waiver of governmental immunity, but reversed and remanded the unpaid wages contract claim as sovereign immunity does not apply to such claims; it also noted unresolved issues regarding exhaustion of administrative remedies for Title VII and the capacity in which individual defendants were sued.

labor & employmentcivil rightstorts & liability

This case involved plaintiffs who purchased timber under contracts and paid North Carolina's excise tax on instruments conveying interests in real property, seeking a declaratory judgment that the tax was invalid as applied to timber sales and a refund of taxes paid from 1997 to 2000, following a Supreme Court ruling that timber under sale contracts is personal property rather than realty. The trial court dismissed the complaint under Rules 12(b)(1) and 12(b)(6), finding the plaintiffs lacked standing. On appeal, the court affirmed, holding that the plaintiffs had no standing because they were transferees rather than transferors required to pay the tax under N.C. Gen. Stat. § 105-228.30, they paid the tax only by voluntary agreement rather than by statutory compulsion, and thus suffered no injury in fact from the statute's operation. The court noted that the plaintiffs were not "taxpayers" entitled to remedies under the relevant tax statutes and that any claimed injury resulted from private agreements, not enforcement of the law.

taxespropertyprocedure

The case involved a maternal grandmother who filed a complaint seeking custody, visitation, and injunctive relief regarding her two grandchildren after their mother's death in 2000, following prior custody proceedings between the mother and the father in New Jersey and North Carolina courts. The trial court dismissed the claims under Rules 12(b)(6) and 12(b)(1), and also denied a related motion in the cause under N.C. Gen. Stat. § 50-13.5(j). The Court of Appeals affirmed, holding that the surviving father's natural and legal right to custody could only be interfered with upon allegations showing unfitness or conduct inconsistent with his constitutionally protected parental status, which the complaint failed to sufficiently plead, and that grandparents lack standing for visitation absent an ongoing custody action where the family is intact. The court further noted that a best-interests analysis was inapplicable without such a threshold showing.

family law

In Cole v. Faulkner, the petitioner appealed after the trial court affirmed the Division of Motor Vehicles' cancellation of his conditionally restored driving privileges, originally revoked due to multiple driving while impaired convictions from 1973 to 1995. The DMV based the cancellation on ignition interlock device readings showing alcohol on two occasions in late 2000 and early 2001, which it interpreted as a violation of the condition prohibiting operation of a vehicle after consuming alcohol. The Court of Appeals reversed, concluding that the whole record lacked substantial competent evidence to support a finding that Cole had consumed alcohol, given subsequent zero readings, police alco-sensor results of 0.00, and technician testimony attributing the readings to fast-dissipating mouth contaminants.

criminal lawprocedure

In State v. Shores, the defendant was convicted of second-degree murder after shooting the victim during a bar altercation and appealed on multiple grounds, including the admission of evidence about his post-arrest silence. The North Carolina Court of Appeals held that the trial court erred by allowing the State to introduce and comment on the defendant's exercise of his right to remain silent after receiving Miranda warnings, as his trial testimony was consistent with his earlier statements and merely added detail. The court found this constitutional violation prejudicial because it created an inference that the defendant's self-defense account was fabricated, and the error was not harmless beyond a reasonable doubt. Accordingly, the court awarded a new trial while declining to address several other assignments of error unlikely to recur.

criminal lawprocedure

The case involved Allen Spencer, who was convicted of assault with a deadly weapon with intent to kill inflicting serious injury after stabbing his former partner. He appealed the conviction and sentence, claiming the trial court erred by not instructing the jury on voluntary intoxication, by finding as an aggravating factor that he committed the offense while on pretrial release, and by not dismissing the indictment for failing to allege specific intent to kill. The court affirmed the conviction and sentence, holding that the evidence did not support a voluntary intoxication instruction, that the trial court properly verified the pretrial release status through court records, and that the indictment sufficiently alleged intent to kill. The decision was based on the sufficiency of evidence presented at trial and the legal standards for jury instructions, sentencing factors, and indictments under North Carolina law.

criminal lawprocedure

In State v. Tucker, a juvenile defendant appealed his superior court convictions for second-degree sexual offense and related charges stemming from incidents at a state training school where he was committed, arguing insufficient evidence that the acts were against the victims' will and that the trial court wrongly classified his juvenile commitment as a prior sentence of imprisonment for sentencing purposes. The court affirmed the second-degree sexual offense conviction, finding substantial evidence that the defendant engaged in sexual acts by force and against the victims' will through testimony and physical evidence. However, it reversed the Level II prior record classification and remanded for resentencing, holding that commitments under the Juvenile Code do not constitute sentences of imprisonment because juveniles are adjudicated delinquent rather than convicted and sentenced. The core reasoning distinguished the rehabilitative juvenile system from the adult criminal framework under N.C. Gen. Stat. § 15A-1340.14.

criminal lawprocedure

In State v. Wilson, defendant James Wilson, Jr. was convicted of seven counts of larceny from the person after reaching into store cash registers and taking money in the presence of cashiers, and he pled guilty to habitual felon status, resulting in five consecutive prison terms. He appealed the trial court's denial of his motion to suppress photographs of his shoes taken while in custody on an unrelated charge, denial of his motions to dismiss for insufficient evidence, and failure to instruct the jury on the lesser-included offense of misdemeanor larceny. The Court of Appeals found no error, holding that a nontestimonial identification order was unnecessary because the defendant was already in custody, that the evidence was sufficient to show the property was taken from the victims' presence and protection, and that all the evidence supported only the charged offense with no basis for a misdemeanor instruction.

criminal lawprocedure

The case involved defendant Larry Gene McRae appealing the denial of his motion to suppress evidence obtained during a traffic stop and pat-down search, after which he pled guilty to felony possession of cocaine and misdemeanor possession of drug paraphernalia while preserving his right to appeal. The court affirmed the trial court's decision, holding that the officers had reasonable grounds to stop the vehicle based on observed speeding and suspicious activity in a known drug area, and to conduct a pat-down frisk due to the defendant's nervous behavior and repeated hand movements into his pockets, which justified concerns for officer safety. The evidence was deemed admissible because the frisk was reasonable and the defendant voluntarily complied by producing the contraband.

criminal lawprocedure

In State v. Moses, the defendant appealed his convictions for felonious operation of a motor vehicle to elude arrest, robbery with a dangerous weapon, and assault with a deadly weapon inflicting serious injury, arising from an incident in which he and another person attacked a victim, stole his car, and led police on a chase. The court arrested judgment on the assault conviction because the indictment failed to name the deadly weapon as required, and arrested judgment on the eluding arrest conviction because the State improperly amended the indictment. It found no error in the robbery conviction but remanded for resentencing on that charge because the trial court relied on aggravating factors unsupported by evidence, as only two participants were involved. The court remanded for entry of judgment on lesser offenses for the two arrested convictions.

criminal lawprocedure

In Handy v. PPG Industries, plaintiff Ricky Handy, appearing pro se, sought workers' compensation benefits from his employer PPG Industries and its insurer for a left shoulder injury he attributed to repetitive overhead reaching while operating a twist machine. The Deputy Commissioner ordered a physician's deposition, formulated neutral questions and a factual hypothetical, and the Industrial Commission awarded benefits based on that evidence, treating the claim as involving an occupational disease. Defendants appealed, arguing that these actions violated their due process and equal protection rights by improperly assisting the plaintiff and changing his theory of recovery. The North Carolina Court of Appeals affirmed the award, holding that the Deputy Commissioner acted within her discretion, the questions were neutral and could have benefited either party, and the actions did not constitute representing the claimant or show bias. The court noted that neutrality must be maintained but found no statutory or constitutional violation in this case.

labor & employmentprocedure

The case concerned the North Carolina Forestry Association's challenge to the Department of Environment and Natural Resources' decision to exclude new or expanding wood chip mills from a general NPDES stormwater discharge permit, requiring those facilities to seek individual permits instead. The Environmental Management Commission determined that the Association lacked standing to contest the exclusion and, alternatively, that the agency had acted within its authority. On appeal, the Court of Appeals held that the Association was not an aggrieved party because it did not demonstrate a direct, particularized injury from the permitting policy and therefore lacked standing to bring the action.

environmentbusiness & regulatoryprocedure

The case involved the termination of James Faircloth Sr.'s parental rights to his four children after the Cumberland County Department of Social Services petitioned on grounds including physical and sexual abuse, neglect, and failure to make reasonable progress while the children were in foster care. Faircloth, who had entered an Alford plea to multiple sexual offenses against one child and was serving a lengthy prison sentence, appealed the termination order on grounds that the trial judge should have recused herself, that his counsel should have been allowed to withdraw due to ineffective assistance, that he was improperly removed from the hearing, and that the court erred in treating his plea as an admission and in finding lack of progress. The North Carolina Court of Appeals affirmed the order, concluding that the trial court committed no procedural error, that only one statutory ground is needed for termination, and that several independent grounds were supported by clear and convincing evidence.

family law