Alan Z. Thornburg

In this case, plaintiff Parker sued defendant Willis for negligence after Parker's motorcycle collided with Willis's car, which had backed into the roadway while attempting a turn; Parker suffered injuries and sought damages for medical expenses and lost earnings. The jury found Willis negligent but also found Parker contributorily negligent, barring recovery. On appeal, Parker challenged the submission of contributory negligence to the jury and the refusal to instruct on last clear chance. The court declined to review the contributory negligence issue because Parker had not moved for a directed verdict at trial, as required to preserve the sufficiency of the evidence. However, it reversed and ordered a new trial, holding that the evidence supported instructing the jury on last clear chance because it permitted inferences that Parker was in a position of peril from which he could not escape and that Willis had the time and means, through a proper lookout, to avoid the collision.

torts & liabilityprocedure

This case concerns a mother's appeal from a North Carolina trial court's permanency planning order that continued custody of her three minor children with the Pitt County Department of Social Services and changed the permanent plan from reunification to adoption, based on prior adjudications of neglect and dependency tied to the mother's cocaine use, criminal activity, housing instability, and inconsistent engagement with services. The Court of Appeals vacated the order and remanded for further proceedings, holding that the trial court failed to make the statutorily required findings of fact and conclusions of law on whether DSS had made reasonable efforts to prevent or eliminate the need for the children's placement outside the home, as mandated by N.C. Gen. Stat. §§ 7B-507 and 7B-907. Although the record contained evidence of DSS's services over several years, the absence of explicit findings on this issue required remand without reaching the mother's additional arguments about the children's best interests or the adoption plan.

family law

The case involved Judy Skinner suing her former employer Quintiles Transnational Corp. in state court under North Carolina's Retaliatory Employment Discrimination Act (REDA) for alleged retaliation tied to her workplace injury and workers' compensation claim after she was laid off and terminated. Skinner had previously filed a federal lawsuit under the Americans with Disabilities Act (ADA) alleging failure to accommodate her disabilities, which was dismissed with prejudice on summary judgment in 2003. The trial court denied the employer's motion for judgment on the pleadings based on res judicata, but the Court of Appeals reversed, holding that the REDA claim was barred because Skinner could have included it in the federal action by requesting a right-to-sue letter from the Department of Labor or seeking a stay, yet took no such steps. The court reasoned that traditional claim preclusion principles apply here over REDA's administrative process policies, aligning with analogous decisions from other federal circuits.

labor & employmentprocedure

The case involved petitioners challenging the Town of Fairmont's annexation ordinance for the Golf Course Road area under N.C. Gen. Stat. § 160A-38, contesting the classification of certain properties like the Brice lots and Fairmont Golf Club parcel for purposes of meeting urban development tests in N.C. Gen. Stat. § 160A-36. The trial court identified some misclassifications but upheld the ordinance, finding the area still satisfied the statutory requirements. On appeal, the court corrected the classifications—treating the Brice lots as two separate parcels and the golf course as fully commercial—recalculated the percentages, and determined that the area met both the use test (at least 60% developed for urban purposes) and the subdivision test (at least 60% of acreage in lots three acres or less). The appellate court affirmed the trial court's decision to uphold the annexation without amendment, concluding substantial compliance with the annexation statutes.

propertyprocedurebusiness & regulatory

This case involved a physician's employment contract with LeBauer Health Care that included a covenant not to compete; after the physician resigned in 2001 and began working for a competitor within the restricted area and period, LeBauer sued for breach of contract, misrepresentation, unjust enrichment, and rescission, while the physician counterclaimed for breach and violations of the North Carolina Wage and Hour Act. The trial court granted partial summary judgment to LeBauer on the breach claim and awarded damages equal to the amount previously paid to the physician for the covenant, while also finding a Wage and Hour Act violation but denying liquidated damages. On appeal, the court affirmed the finding of breach but reversed the damages award, holding that the proper measure is lost profits rather than repayment of the covenant amount, and remanded for further proceedings on damages while addressing related contract and statutory issues.

labor & employmentbusiness & regulatory

This case involved plaintiffs seeking damages from a newspaper publisher under respondeat superior after a car accident with one of its carriers, Jack Roberts, who was delivering papers. The trial court granted summary judgment to the Herald defendants, ruling that Roberts was an independent contractor as a matter of law based on the contract and deposition evidence, so the publisher had no vicarious liability. On appeal, the court reversed and remanded, holding that the facts showed significant control by the Herald—including required delivery times and conditions, the right to terminate for unsatisfactory performance, and integration into the newspaper's core business—creating a genuine issue as to whether Roberts was an employee rather than an independent contractor. The decision turned on North Carolina precedents distinguishing employment from contractor status by the degree of control and the nature of the work performed.

torts & liabilitylabor & employment

In this workers' compensation case, plaintiff John Alexander sought benefits from defendants Wal-Mart Stores, Inc. and its carrier for a back injury allegedly caused by a 1999 workplace accident that initially injured his foot. The North Carolina Industrial Commission awarded temporary total disability benefits and designated Dr. Toni Harris as the treating physician after finding that the back injury was causally related to the accident based primarily on Dr. Harris's testimony. On appeal, the Court of Appeals reversed, holding that competent evidence did not support the Commission's causation finding because Dr. Harris's opinions were speculative and not sufficiently tied to the accident. The court applied its limited standard of review, which requires only checking for any competent evidence supporting the findings while viewing the record in the light most favorable to the plaintiff, but concluded none existed here to uphold the award.

labor & employment

The case involved a real estate developer challenging a city's revocable license agreement allowing a homeowners' association to construct a removable visitor's information center in a public street right-of-way connecting two subdivisions. The trial court granted summary judgment to the city, but the appeals court reversed, holding that the city lacked statutory authority under N.C. Gen. Stat. § 160A-296 to permit the structure. The court reasoned that the agreement created only a license, not an easement, and the structure did not qualify as an appliance or fixture under the relevant subsections authorizing municipal control over streets. It remanded for entry of summary judgment in favor of the plaintiff developer.

property

In Wood v. BD&A Construction, L.L.C., homeowners sued a contractor for breach of warranties, negligence, negligent misrepresentation, breach of contract, and unfair trade practices after discovering water intrusion defects and resulting damage in their home in 2002, though the house had been substantially completed in 1996. The trial court dismissed the claims on a Rule 12(b)(6) motion, finding them barred by the six-year statute of repose in N.C. Gen. Stat. § 1-50(a)(5). On appeal, the court affirmed the dismissal, holding that the plaintiffs failed to plead fraud with particularity to invoke the statutory exception, did not sufficiently allege willful or wanton negligence or equitable estoppel based on the contractor's window repairs, and that the repose period ran from substantial completion regardless of later discovery.

proceduretorts & liabilityproperty

The case involved defendant Celeste Marche Hines's appeal of her convictions for robbery with a dangerous weapon, aggravated assault on a handicapped person, obtaining property by false pretenses, financial card theft, and financial card fraud, stemming from an incident where she and a co-defendant allegedly struck a hearing-impaired victim during a staged car accident to steal her purse. The court vacated the conviction for aggravated assault on a handicapped person, finding that the statute's language barred punishment under that provision when the conduct was covered by another law providing greater punishment, such as the robbery charge. It upheld the remaining convictions, ruling that the trial court properly denied motions to dismiss because substantial evidence, including medical testimony about the victim's head injury from blunt force trauma inconsistent with a fall, supported the elements of robbery with a dangerous weapon and the other offenses. The court also rejected arguments regarding jury instructions and double jeopardy, distinguishing prior precedent and noting that North Carolina allows convictions for both robbery with a dangerous weapon and related assaults in appropriate circumstances.

criminal lawprocedure

In State v. Boston, the defendant was convicted of common law robbery and being a habitual felon after evidence showed he took a wallet from the victim's home following a dispute over payment for guns. The trial court instructed the jury only on common law robbery, larceny from the person, or not guilty, but refused to include misdemeanor larceny despite defense objections. The Court of Appeals held that this was error because the defendant presented conflicting evidence on whether the wallet was taken from the victim's person or immediate presence and control, making misdemeanor larceny a lesser-included offense that should have been submitted to the jury. The court therefore reversed the conviction and ordered a new trial. The opinion also noted a separate ineffective assistance claim but declined to address it on the silent record.

criminal lawprocedure

In Oakley v. Oakley, the parties' 1998 separation agreement, incorporated into a 1999 divorce judgment, required the defendant ex-husband to pay alimony to the plaintiff ex-wife until June 2005 or her cohabitation with an unrelated person of the opposite sex. After the defendant stopped payments in 2000 claiming cohabitation with Richard Smith, the plaintiff sought contempt sanctions; the trial court ruled that no cohabitation had occurred under N.C. Gen. Stat. § 50-16.9(b) and held the defendant in contempt. On appeal, the court held that cohabitation requires evidence of voluntarily assuming marital rights, duties, and obligations beyond sexual relations and occasional social activities, so the trial court's finding of no cohabitation was upheld and alimony was not terminated. However, the contempt order was reversed and remanded because the trial court failed to make required findings on the defendant's present ability to comply with the order. The opinion also clarified that modification of court-approved alimony must proceed under § 50-16.9 rather than Rule 60(b).

family law

The case involved a defendant charged with felony possession of cocaine with intent to manufacture, sell, or deliver, along with misdemeanor drug offenses, after a traffic stop revealed 19 rocks of cocaine weighing 1.87 grams, a razor blade, and other paraphernalia in a vehicle. The trial court denied the defendant's motion to dismiss the felony charge for insufficient evidence of intent and the jury convicted him, leading to a consolidated sentence of 8-10 months imprisonment. On appeal, the court held that the evidence was sufficient to submit the intent element to the jury, as the quantity of cocaine combined with the razor blade and the defendant's stops at two locations permitted a reasonable inference of intent to sell or deliver. The decision emphasized that intent may be inferred from circumstantial evidence and that the State need not disprove every hypothesis of innocence.

criminal law

The case concerned the termination of a mother's parental rights to her two young children, M.L. and A.G., after the Cabarrus County Department of Social Services determined the children were neglected and dependent due to inadequate hygiene, improper supervision, failure to thrive from caloric deprivation, and the mother's inability to follow care instructions. The trial court adjudicated the children neglected and dependent, found statutory grounds under N.C. Gen. Stat. § 7B-1111(a)(1) and (6) based on the mother's mild mental retardation (IQ of 57) and history of poor caregiving, and ruled that termination was in the children's best interests. On appeal, the North Carolina Court of Appeals affirmed, holding that clear and convincing evidence supported the dependency finding and that the trial court properly exercised its discretion in terminating rights, without needing to address the neglect ground separately.

family law

In State v. Alegria-Sanchez, a jury convicted the defendant of multiple cocaine trafficking offenses and conspiracy after an undercover officer arranged a purchase through an informant and observed the defendant retrieve and deliver cocaine from his truck. The defendant appealed, arguing that the trial court erred by failing to intervene ex mero motu when the prosecutor stated in closing argument that a cooperating witness appeared "scared" of the defendant due to a pre-trial conversation, claiming the remark lacked evidentiary support. The court held there was no error, reasoning that the prosecutor's comments on the witness's demeanor and changed testimony were reasonable inferences from the evidence presented, including the witness's initial denial of knowing the defendant followed by an admission of fear-inducing statements, and that the argument did not stray so far from propriety as to require intervention. The court further noted that even if improper, the remarks were not grossly improper, and the state's case relied primarily on the officer's direct observations rather than the witness's testimony.

criminal lawprocedure

The case involved a landlord who sued tenants for unpaid rent and possession of leased property after they failed to make payments under an agreement that included an option to purchase. Following a small claims judgment in the landlord's favor, the tenants appealed to district court but then took a voluntary dismissal of their appeal. The landlord moved to amend the complaint to seek additional damages beyond the small claims limit, but the trial court denied the motion. The appellate court affirmed the denial, reasoning that a voluntary dismissal under Rule 41(a) strips the court of authority to enter further orders in the case.

propertyprocedure

In State v. Abdullah, the defendant appealed his conviction for possession with intent to sell or deliver cocaine and his habitual felon sentencing after a jury trial, challenging the denial of his motion to suppress evidence from a search warrant, the sufficiency of the evidence, the proportionality of his sentence, and the validity of his habitual felon status. The court held that the trial court did not err in denying the motions or in sentencing the defendant, finding no error in the proceedings. The court reasoned that the search warrant was supported by probable cause despite the affidavit describing the controlled buy as occurring within the past five days, as drug activity is often ongoing; the evidence linking the defendant to the cocaine found nearby was sufficient when considered together; the constitutional challenge to the sentence was not preserved; and the Supreme Court had clarified that possession of cocaine qualifies as a felony for habitual felon purposes.

criminal lawprocedure

The case involved John Thomas Hege, who was convicted by a jury of possession of a firearm by a felon after police responded to a disturbance and found him alone in a parked car with a gun under his leg. He appealed the denial of his motion to dismiss for insufficient evidence, claiming the State failed to prove possession. The court reviewed the evidence in the light most favorable to the State and determined it showed constructive possession, as the defendant was alone in the vehicle, the gun butt was visible under his leg, he reached for it after ignoring commands to show his hands, and officers saw his hand on the gun. The court affirmed the conviction, holding there was no error.

criminal lawguns

The case involved a defendant charged with felonious breaking or entering, felonious larceny pursuant to a breaking or entering, and habitual felon status. The jury acquitted the defendant of breaking or entering but convicted him of felonious larceny, after which the trial court denied motions to set aside the verdict as inconsistent. On appeal, the court held that under N.C. Gen. Stat. § 14-72(b)(2) and precedent in State v. Perry, the felony larceny conviction required a finding of breaking or entering, which was absent, so it vacated the felonious larceny and habitual felon convictions and remanded for judgment on misdemeanor larceny.

criminal law

The case involved the defendant's convictions for first-degree kidnapping, first-degree burglary, first-degree rape, and two counts of first-degree sexual offense arising from a nighttime home invasion and sexual assault on victim D.T. in Durham, North Carolina. The trial court admitted evidence of a similar assault on victim R.H. six months later under Rule 404(b), and the defendant appealed the resulting sentences of three consecutive terms of 384 to 470 months. The Court of Appeals found no error, holding that the substantial similarities between the two incidents—including the assailant's method of entry, use of a gun and gloves, demands for cash and valuables, use of lotion as lubricant, cleaning of the victims, theft of bedding, and instructions to count before seeking help—supported admission of the other-crimes evidence to prove identity and intent. DNA from the first victim's swabs and pajama bottoms matched the defendant at a high statistical probability, and shoe prints from the scene were consistent with footwear the defendant possessed at arrest.

criminal law