Amicus Briefs

State v. Darrell Tristan Anderson

NCAJ filed an amicus brief in the NC Supreme Court on behalf of Mr. Darrell Anderson, Mr. Riley Conner, and Mr. James Kelliher. Each of them pled guilty to crimes committed as juveniles, including homicide and other offenses, and received consecutive sentences that did not make them parole eligible until their sixties. The Court of Appeals held that Mr. Kelliher’s sentences were a violation of the Eighth Amendment and the North Carolina Constitution because they did not give him a meaningful opportunity for release as required by Graham v. Florida, 560 U.S. 48, 176, L. Ed. 2d 825 (2010), and Miller v. Alabama, 567 U.S. 460, 183 L. Ed. 2d 407 (2012). In contrast and over Chief Justice Linda McGee’s dissent, the Court of Appeals held that Mr. Conner’s and Mr. Anderson’s sentences were not an Eighth Amendment violation.

Bartlett v. Burke

This is a products liability case arising from the fatal crash of a medevac helicopter in North Carolina. The trial court denied a motion to dismiss based on personal jurisdiction, but the Court of Appeals reversed. NCAJ provided an amicus brief in support of Plaintiffs’ Petition for Discretionary Review.

Morris v. Rodeberg, et al

A 13-year-old child was injured during an appendectomy. He filed suit after his 18th birthday pursuant to the tolling provisions of N.C.G.S. § 1-17(b). Defendants moved to dismiss the case, arguing that N.C.G.S. § 1-17(c) required Plaintiff to file suit within three years of his injury. Effectively, Defendants’ argument was that the statute of limitations expired while Morris was still a minor. The Court of Appeals majority agreed, and Plaintiff appealed pursuant to the dissent.

Jones v. Mill

Plaintiffs brought claims for breach of fiduciary duty and constructive fraud. Specifically, although Defendant UNC physicians were aware of grave problems with the pediatric heart surgery program at UNC – including high rates of mortality and other complications – they failed to disclose these problems to the Jones family. As a result, the Jones were deprived of the information they needed to make medical decisions for their daughter. Had the Jones been properly informed, their daughter would not have had surgery at UNC. Instead, she died from complications related to said surgery.

Plaintiffs did not bring a medical malpractice action, but only sued for breach of fiduciary duty and constructive fraud. Defendants did not contest that Plaintiffs presented genuine issues of material fact on both of their claims. Nonetheless, the trial court construed the complaint as one for medical malpractice and granted summary judgment.

The NCAJ amicus brief argues that the law of North Carolina, as well as that of other state and federal courts, consistently holds that the plaintiff – for better or worse – is the master of his complaint. A plaintiff choses what claims to bring, and it is not up to the court to simply construe the causes of action otherwise. Moreover, based on the nature of the claims filed by plaintiffs, Rule 9(b) rather than Rule 9(j) applies to this case. Rule 9(j) simply does not apply to a case like this one that clearly does not plead medical malpractice.

State v. Martinez

Furman v. Gerould

Plaintiffs brought claims for medical malpractice and included compliance with Rule 9(j) in their complaint. Plaintiffs’ certifying expert was clearly well qualified. However, he testified in his deposition that he was not familiar with Raleigh or its orthopedic community but was instead applying a national standard of care. After said deposition, the expert was provided substantial information about the Defendants and the relevant medical community. Thereafter, the expert executed an affidavit which stated his familiarity with the medical community and confirmed that he maintained his opinion that the treatment in question “was not in accordance with the standard of practice among members of the same healthcare profession as [Defendant] with similar training and experience, situated in Raleigh, North Carolina, or in similar communities.”

Defendants moved to strike the affidavit, exclude the expert witness, and dismiss the case for failure to comply with Rule 9(j). The trial court granted all 3 motions. Plaintiffs appealed.

In striking the affidavit, the trial court relied primarily on Dobson v. Sears, 296 N.C. App. 452, 908 S.E.2d 882 (2024). Plaintiffs contend that this reliance was in error because (1) although the affidavit in Dobson contradicted the expert’s testimony by purporting to give testimony as to an additional defendant, the affidavit here merely supplemented the testimony by demonstrating supplemental knowledge of the local community; (2) Dobson is directly contradictory to North Carolina Supreme Court precedent such as Crocker v. Roethling, 363 N.C. 140, 675 S.E.2d 625 (2009) which allowed supplemental affidavits; and (3) Dobson is not binding because it failed to follow previous precedent of the Court of Appeals. Had the trial court not followed Dobson to the exclusion of binding precedent, the affidavit would not have been stricken, the expert would not have been disqualified, and the 9(j) motion would not have been granted. Moreover, when ruling on a 9(j) motion, a court is required to draw all inferences in a plaintiff’s favor when determining whether she reasonably expected an expert witness to qualify under Rule 702. Such a court does not make an ultimate ruling as to whether said expert actually does qualify. By refusing to consider the affidavit, the trial court did not draw inferences in favor of Plaintiffs.

NCAJ filed an amicus brief in support of Plaintiffs. The brief gives a survey of the legal landscape with regard to supplemental affidavits and demonstrates that our courts have – contrary to the outlier Dobson case – consistently allowed the practice even where an expert previously testified to a total lack of knowledge of the local community and/or relied exclusively on a national standard of care. In addition to the other reasons the trial court’s reliance on Dobson was improper, the NCAJ brief points out that Dobson had not been decided when Plaintiffs filed their complaint. Thus, it cannot be used to determine whether Plaintiffs’ expectation that their expert would qualify was reasonable, especially where the overwhelming weight of the authority at the time contradicted the yet-to-be-decided Dobson case. Dismissal was also unnecessary here. If the trial court still had questions about the expert after the affidavit, it could have allowed the defense to voir dire the witness or even re-open the deposition. By instead dismissing the case, the trial court subverted the purpose of Rule 9(j), using it not as a gatekeeper to screen out frivolous and unsupported medical malpractice cases, but to dismiss a case supported by a highly credentialed expert who supplemented his deposition testimony with an affidavit, as has been allowed consistently by our courts.

Overby v. Anheuser-Busch, LLC

Plaintiffs are a class of approximately 500 workers at Defendant’s brewery in Williamsburg, Virginia. They brought claims against Defendant alleging wage theft. Specifically, workers were required to perform various work-related tasks both before and after their shifts. For example, they were required to arrive before their shifts, undergo COVID screenings, don/doff protective equipment, stay after shift for clean-up, etc. These policies were facility-wide, as pay was tied not to actual clock times, but to stated shift hours. The result is that workers were required to be on site for time for which they were not paid.

State v. Marzouq

The North Carolina Advocates for Justice, along with the North Carolina Justice Center, filed an amicis brief in the NC Court of Appeals on behalf of Mr. Ali Awni Said Marzouq.  Mr. Marzouq, a legal permanent resident of the United States, pled guilty to two drug related charges.  His criminal defense attorney provided ineffective assistance by failing to properly advise Mr. Marzouq of the consequences his plea would have on his immigration status.

Hamlet H.M.A. v. Hernandez

When the North Carolina Legislature enacted, and then amended, the Unfair and Deceptive Trade Practices Act (UDTPA), it made clear that the statute’s intent was to broadly cover commercial activities.  However, in response to legislator concerns that the UDTPA not create another cause of action for malpractice claims, the UDTPA expressly exempted “professional services rendered by a learned professional.”  Thus, a doctor or a lawyer cannot be sued under the UDTPA for injury caused by the professional services they provide to their patients or clients.

Rouse v. Forsyth County

NCAJ filed an amicus brief in the NC Supreme Court arguing that the Court of Appeals decision completely ignored provisions of N.C.G.S. 126 , the State Human Resources Act (SHRA), that specifically authorize an administrative law judge to award employees covered by the SHRA back pay and attorney’s fees when it is determined that the employee was illegally fired.

State v. Golder

NCAJ recently filed amicus curiae briefs in two criminal cases pending before the North Carolina Supreme Court – State v. Golder and State v. Smith. In both cases, the Court of Appeals denied review of meritorious arguments on the sufficiency of the evidence because, at trial, defense counsel supplemented a general motion to dismiss with a specific argument. Under one recent line of Court of Appeals case law, defense counsel’s oral argument “narrowed” the general motion to dismiss, which would otherwise have preserved a challenge to every element of the crime.

Chappell v. NCDOT

NCAJ filed an amicus brief in the NC Supreme Court urging the justices to affirm a Cumberland County jury’s verdict and post-trial rulings that compensated landowners for by takings by NCDOT pursuant to the “Map Act”.  The Map Act prohibited the improvement, subdivision, and development of land located within certain protected corridors that were set aside for future NCDOT road projects.  DOT did not acquire their land through condemnation, however,  which left owners trapped for decades and unable to sell or fully benefit from their assets as their property values plummeted.  The Court previously ruled in Kirby v. DOT that the Map Act’s restrictions constituted a taking.

Vincent v. AMCO

NCAJ filed an amicus brief in the 4th Circuit Court of Appeals in support of a catastrophically injured small business owner. The Plaintiff suffered life changing injuries, including multiple broken bones, internal organ injuries, and a traumatic brain injury, when his motorcycle was struck by a negligent motorist.

Da Silva v. WakeMed, et. al.

A woman who suffered injuries that resulted from the negligent prescription of Levaquin. The trial court excluded Plaintiff’s sole expert, Dr. Paul Genecin, an internal medicine physician, after finding that Dr. Genecin did not qualify under N.C. Rule E. 702(b) because he was not of the “same specialty” as the hospitalist defendants and, although he was of a “similar specialty,” he did not spend the majority of his professional time in the clinical practice of hospital medicine.  The trial court also held that Dr. Genecin’s testimony on proximate cause was legally insufficient.  As a result of the trial court’s findings, summary judgment was rendered for defendant.

Ha v. Nationwide

Plaintiffs, who had recently contracted and paid for homeowners’ insurance, lost their home to a fire.  The homeowners called their insurer, Nationwide, and were notified for the first time that their insurance policy had been cancelled two months prior.  At trial, Nationwide argued that mailing the cancellation notice via regular mail satisfied N.C.G.S. § 58-41-15(c), which requires the insurance company to “furnish” notice of cancellation of insurance policies in existence for sixty days or fewer.  The trial court agreed, but the Court of Appeals determined that the Legislature, with N.C.G.S. § 58-41-15(c), intended to require the insurance company to prove delivery, rather than mere mailing, of the cancellation notice.

State v. Smith

NCAJ recently filed amicus curiae briefs in two criminal cases pending before the North Carolina Supreme Court – State v. Golder and State v. Smith. In both cases, the Court of Appeals denied review of meritorious arguments on the sufficiency of the evidence because, at trial, defense counsel supplemented a general motion to dismiss with a specific argument. Under one recent line of Court of Appeals case law, defense counsel’s oral argument “narrowed” the general motion to dismiss, which would otherwise have preserved a challenge to every element of the crime.

Saunders v. Hull Prop. Grp., LLC

This case squarely presents the issue of whether the North Carolina Supreme Court should abandon the harsh and antiquated defense of contributory negligence, and adopt the modern doctrine of comparative fault. In this premises liability case, the trial judge rejected plaintiff’s timely request for a jury instruction on comparative fault.

Savino v. Charlotte-Mecklenburg Hospital Authority

In Savino v. Charlotte-Mecklenburg Hospital Authority, a wrongful death action, the jury found the hospital liable for medical and administrative negligence and awarded $5,500,000 in non-economic damages. The Court of Appeals overturned the verdict on administrative negligence and vacated the award of non-economic damages. NCAJ submitted an amicus brief in support of plaintiff’s successful petition for discretionary review. In the Supreme Court, NCAJ’s amicus brief addressed two issues.

NC Farm Bureau Mutual Insurance Co v. Martin

This brief addresses the applicability of UIM coverage to “residents” of the same “household” in the context of multiple structures located on a family farm.

Parkes v. Hermann

This case presents the issue of whether North Carolina recognizes the “lost chances” theory of recovery in medical malpractice actions.

In this medical malpractice action, the plaintiff was experiencing symptoms consistent with early onset of stroke.  She was taken to the emergency room.  Despite her presentation of stroke-like symptoms, her physician did not order administration of tPA within a three hour window, as required by the standard of care.  According to the only expert testimony in the record, had the tPA been promptly administered, the plaintiff would have had an ~40% chance of recovery with no significant morbidities.  By failing to administer the tPA, the defendant obliterated these chances.  At summary judgment, the trial court dismissed plaintiff’s claims because her chances were not above 50%.

Griffin v. Absolute Fire Control, Inc.

This is a workers’ compensation case that involves issues pertaining to disability and suitable employment.  One method that an injured worker may use to prove disability involves a showing that it would be futile due to age, limited education, inexperience or other factors for the injured worker to search for work.  Here, Mr. Griffin continued to work for Absolute in light duty work but alleged that the job was not suitable employment and that he was disabled.  The Full Industrial Commission held that Mr. Griffin presented “no evidence” of futility of jobs search, even though he presented uncontested evidence that he was 49 years of age; had only a ninth grade education; had only ever worked in construction and pipefitting; had restrictions of no lifting greater than 20 pounds, amongst others, which disabled him from pipefitting; and that he needed to leave work at times due to pain.  His treating physician had also recommended vocational rehabilitation which the Commission found had not yet been provided.

Gay v. Saber Healthcare Group, L.L.C., et al.

This case presents the issue of whether skilled nursing facilities owe a fiduciary duty to their patient-residents. Because skilled nursing facilities are healthcare providers, they should be held to the same fiduciary duty that the Supreme Court announced in King v. Bryant. A fiduciary duty for skilled nursing facilities is consistent with federal and state laws and regulations, which recognize that these institutions are entrusted to care for a uniquely vulnerable population. In addition, the purported arbitration agreement in this case is unenforceable. The document does not state that the parties agreed to arbitrate disputes and lacks all other essential terms. There was simply no meeting of the minds to arbitrate.

Armento v. Asheville Buncombe Community Christian Ministry, Inc

The plaintiff is asking the 4th Circuit to interpret the North Carolina Wage Hour Act. The NCWHA is very similar to the federal Fair Labor Standards Act, and judges often use case law from the FLSA to guide interpretation of the NCWHA. NCAJ’s amicus could educate the Court about the interaction between the two statutes, the background and policy behind the NCWHA, and any ways in which the WDNC decision might diverge from current NC case law. We want the court to get the law right, and this is an area where our members’ expertise would be valuable.

Town of Apex v. Rubin

The companion amicus briefs submitted to the Court of Appeals are for a pair of cases defending the constitutional mandate that condemnation must require a public use or benefit, and that condemnors cannot assert inverse condemnation as an offensive claim to take private property. The John Locke Foundation joined NCAJ on the briefs to support the arguments to preserve the fundamental rights of property owners.

State v. Daw

In its amicus brief to the North Carolina Court of Appeals, NCAJ argued that the writ of habeas corpus in North Carolina is available to prisoners who are subjected to unconstitutional conditions of confinement. NCAJ contended that the spread of COVID-19 through North Carolina’s prisons, the demonstrated inability of the Department of Public Safety to protect inmates from the deadly virus, and the particular susceptibility to coronavirus of habeas petitioner Philip Daw, who suffers from asthma and other severe respiratory illnesses, are a sufficient basis for granting habeas review.  Rather than granting such review, or any hearing of any kind, the Superior Court of Wake County summarily denied Mr. Daw’s habeas petition, on the grounds that NC General Statute section 17-4 prohibits habeas relief for anyone confined pursuant to a final judgment of a competent court with jurisdiction.

Deminski v. The State Board Of Education, et al.

The issues presented in Deminski that were addressed in the NCAJ’s brief were: (1) whether the right to education, as guaranteed under Article I, Section 15 of the North Carolina Constitution, includes the right to access a sound basic education (SBE); (2) whether a violation of the education right unrelated to the characteristics of a SBE is actionable; and (3) whether sovereign immunity is available to government actors as a defense to a Section 15 claim.

NC Farm Bureau Mut Ins Co, Inc. v. Lunsford

NCAJ filed an amicus brief in the North Carolina Supreme Court in support of the Defendant-Insured in a declaratory judgment action instituted by the Defendant’s automobile insurance company. The Defendant-Insured was severely injured in a motor vehicle collision caused by the driver of the vehicle in which she was a passenger. This at-fault driver was insured by a Tennessee liability policy with $50,000 in liability coverage and $50,000 in Underinsured Motorist (UIM) coverage. The Defendant-Insured had $50,000 in UIM coverage under her own auto policy issued by NCFB.

Butterfield v. Gray

This case involved the egregious death of a jail inmate who was experiencing a known psychotic episode and, rather than provide him the medical care and protection required by law, the Sheriff and his deputies allowed him to slowly die of dehydration and starvation of a period of three weeks with no medical.

Copeland v. Amward Homes Of N.C., Inc., et al.

NCAJ filed an amicus curiae brief supporting the plaintiffs, parents of a young boy who was killed by an unattended, runaway dump truck in the Hillsborough planned community where the family lived.  Parts of the housing development were still under construction, and the dump truck rolled from a lot that was being graded for building across the street from plaintiffs’ home.

Rural Empowerment Ass’n for Cmty. Help v. State of N.C

NCAJ filed an amicus brief in the N.C. Court of Appeals arguing that two recent tort reform statutes were facially unconstitutional. By way of background, this case arises from the recent “hog farm” litigations and jury trials against Smithfield, the largest pork producer in the world. In those litigations, multiple homeowners and residents in eastern NC counties living nearby to open air hog waste cesspools – (euphemistically called “lagoons”) filed lawsuits against Smithfield alleging common law nuisance claims under NC law. These plaintiffs sought recovery for noneconomic damages that have been allowed under the nuisance common law for hundreds of years, e.g. loss of enjoyment of their homes, discomfort, and annoyance damages. In five straight jury trials conducted in the EDNC, before five different juries, each set of plaintiffs won multimillion verdicts against Smithfield for both compensatory and punitive damages.

Miller v. LG Chem, Ltd.

NCAJ filed an amicus brief in the North Carolina Court of Appeals advocating for creating a qualified right to jurisdictional discovery once a prima facie case of jurisdiction has been shown. NCAJ argued that the trial court erred by denying Plaintiff’s counsel and opportunity to conduct jurisdictional discovery to contest the Defendants’ contention it was not subject jurisdiction in North Carolina. The trial court did not rule on Plaintiff’s motion to overrule Defendants’ objections to his jurisdictional-based discovery. Instead, in reaching its conclusion, the trial court relied on a 30(b)(6) deposition of the Defendants from another matter and an affidavit of Plaintiff’s counsel.

Nay v. Cornerstone Staffing Solutions, et al.

Nay v. Cornerstone concerns the proper method for calculating the average weekly wages of employees of temporary employment agencies. The Industrial Commission elected to divide the wages earned over roughly 13 weeks by 52 weeks resulting in a relatively minimal average weekly wage. The NCAJ offered amicus assistance at the Court of Appeals level.

Cunningham v. The Goodyear Tire & Rubber Co., et al.

Before considering the merits of a controversy, courts must first determine if they have the legal capacity to hear the controversy. Courts can answer this question at all levels, even for the first time on appeal, and earlier cases have held that our appellate courts can do so without restraint from what inferior courts have already determined. So, when a majority of the Court of Appeals in Cunningham v. Goodyear Tire & Rubber Co. reversed the Industrial Commission’s dismissal on the assumption that the Commission did not have jurisdiction, the question was whether our appellate courts were bound by the facts found by the Commission or if they could look at the facts with fresh eyes.

State v. Riley Dawson Conner

NCAJ filed an amicus brief in the NC Supreme Court on behalf of Mr. Darrell Anderson, Mr. Riley Conner, and Mr. James Kelliher. Each of them pled guilty to crimes committed as juveniles, including homicide and other offenses, and received consecutive sentences that did not make them parole eligible until their sixties. The Court of Appeals held that Mr. Kelliher’s sentences were a violation of the Eighth Amendment and the North Carolina Constitution because they did not give him a meaningful opportunity for release as required by Graham v. Florida, 560 U.S. 48, 176, L. Ed. 2d 825 (2010), and Miller v. Alabama, 567 U.S. 460, 183 L. Ed. 2d 407 (2012). In contrast and over Chief Justice Linda McGee’s dissent, the Court of Appeals held that Mr. Conner’s and Mr. Anderson’s sentences were not an Eighth Amendment violation.

State v. James Ryan Kelliher

NCAJ filed an amicus brief in the NC Supreme Court on behalf of Mr. Darrell Anderson, Mr. Riley Conner, and Mr. James Kelliher. Each of them pled guilty to crimes committed as juveniles, including homicide and other offenses, and received consecutive sentences that did not make them parole eligible until their sixties. The Court of Appeals held that Mr. Kelliher’s sentences were a violation of the Eighth Amendment and the North Carolina Constitution because they did not give him a meaningful opportunity for release as required by Graham v. Florida, 560 U.S. 48, 176, L. Ed. 2d 825 (2010), and Miller v. Alabama, 567 U.S. 460, 183 L. Ed. 2d 407 (2012). In contrast and over Chief Justice Linda McGee’s dissent, the Court of Appeals held that Mr. Conner’s and Mr. Anderson’s sentences were not an Eighth Amendment violation.

Keith v. Health-Pro Home Care Services, Inc.

Trial judges are empowered with sound discretion to instruct juries as efficiently and comprehensively as they choose, as long as doing so is not legal error and will cover all disputed issues of fact in a case. In Keith v. Pro-Health, a majority of the Court of Appeals reversed a jury verdict favoring the plaintiff and insisted—as a matter of law—that the trial judge should have instructed on negligent hiring instead of the instruction given for ordinary negligence, even though…

NC NAACP v. Moore, et. al

NCAJ filed an amicus brief in the North Carolina Supreme Court in support of the North Carolina State Conference of the National Association for the Advancement of Colored People (“NAACP”). The trial court had determined that legislation proposing constitutional amendments meant to entrench the political party in power was void because (a) the General Assembly proposing it was the result of illegal racial gerrymandering and (b) without that illegal racial gerrymandering, the legislature would never have met the constitutionally-required threshold to propose a constitutional amendment. The Court of Appeals reversed, with a dissent by Judge Reuben Young, and the NAACP appealed to the North Carolina Supreme Court.

Buckley LLP v Series 1 of Oxford Insurance Company, NC, LLC

NCAJ filed an amicus brief with the North Carolina Supreme Court addressing employers’ obligation to disclose communications with outside counsel related to investigations into alleged sexual harassment. The Employer in question was required under its own policies to investigate any complaint of sexual harassment, and when a complaint was raised, chose to retain a law firm to conduct the investigation. It then sought to avoid disclosing any communications with counsel regarding the investigation by asserting attorney-client privilege. The trial court reviewed each of the communications at issue, and required disclosure of all that were unrelated to seeking or providing legal advice. The Employer appealed to the North Carolina Supreme Court. In its amicus brief, NCAJ argued that the trial court applied the correct standard, and that employers should not be permitted to avoid their disclosure obligations by laundering an internal business investigation through outside counsel.

State v. Rogelio Albino Diaz-Tomas

NCAJ filed amicus curiae briefs supporting the defendants in these two cases currently before the N.C. Supreme Court. The briefs argue that prosecutors’ decisions not to reinstate certain criminal cases to the district court docket must be subjected to judicial review. The defendants in these cases were initially charged with driving while impaired in Wake County. When each did not appear in court, prosecutors decided to dismiss the cases with leave, pursuant to N.C.G.S. § 15A-932. Both defendants’ drivers’ licenses were revoked by the DMV, pursuant to another N.C. statute concerning failure to appear, and both defendants were subsequently charged with driving while license revoked.

State v. Edgardo Gandarilla Nunez

NCAJ filed amicus curiae briefs supporting the defendants in these two cases currently before the N.C. Supreme Court. The briefs argue that prosecutors’ decisions not to reinstate certain criminal cases to the district court docket must be subjected to judicial review. The defendants in these cases were initially charged with driving while impaired in Wake County. When each did not appear in court, prosecutors decided to dismiss the cases with leave, pursuant to N.C.G.S. § 15A-932. Both defendants’ drivers’ licenses were revoked by the DMV, pursuant to another N.C. statute concerning failure to appear, and both defendants were subsequently charged with driving while license revoked.

Schaeffer v. Singlecare

NCAJ writes in support of the plaintiff, most of whose claims against defendants, his out-of-state employers, were dismissed for lack of jurisdiction. The brief argues that jurisdiction should have been exercised in the interests of public policy, given the rise of remote work in NC. It also argues that the COA’s decision contravenes the State’s statutes governing jurisdiction and the recent US Supreme Court decision in Ford Motor Co.

Molè v. City of Durham

Sturdivant v. N.C. Dept. of Public Safety

State v. Saldana

Miller v. LG Chem, Ltd.

Sprouse v. Turner Trucking Company

Betts v. N.C. Dept. of Health and Human Services

Ivey v. United States  

Canteen v. Charlotte Metro Credit Union   

Armstrong v. Hutcheson, et al

Cullen v. Logan Developers, Inc.    

Orsbon as GAL for Bosworth-Jones v. City of Charlotte, et al     

N.C. Farm Bureau Mut. Ins. Co. v. Hebert

Graham v. Lambert, et al

A law enforcement officer struck and killed a pedestrian while responding to a call. The officer was both speeding and (according to body cam footage) distracted by his in-car computer at the time of the collision. Other officers were set to arrive before the officer in question, who was responding on a non-emergency basis without his sirens or blue lights activated.

Defendants moved for summary judgment on the issue of gross negligence. Although the trial court denied this motion, the Court of Appeals reversed. Plaintiff appealed based on a dissent, and a subsequent PDR filed by Defendants was granted on an issue related to the sufficiency of the pleadings regarding waiver of immunity.

NCAJ filed an amicus brief on the gross negligence issue. Citing statistics about the dangers of both speeding and distracted driving, NCAJ argued that the combination of these two factors is particularly dangerous. The brief contends that the gross negligence issue should be decided by a jury where the officer “is not in an emergency situation, is not using his lights or sirens, is speeding, deviates from his lane of travel multiple times, and is repeatedly distracted by an electronic device, including at the time of impact.”

Washington, et al. v Cline, et al.

In this case, the NCAJ joined with the ACLU of NC to support plaintiff Frankie Washington in his appeal to the state Supreme Court. The amicus brief urges the Court to protect the ability of all North Carolinians to vindicate their fundamental constitutional rights.

State v. Chemuti

Criminal defendant subpoenaed body cam footage from Town, and trial court ordered the Town to comply. The Town appealed, arguing that the defendant could not subpoena the information, but could only seek the videos by filing a petition in civil court pursuant to N.C.G.S. § 132-1. The Court of Appeals dismissed the appeal as interlocutory, but the Supreme Court granted discretionary review.

As pointed out by the NCAJ amicus brief, the Town’s argument hinges on the applicability N.C.G.S. § 132-1.4A(g) to this case. However, it is subsection (h), not subsection (g), that applies to requests made in the context of a criminal investigation. In fact, subsection (h) specifically states that it is not subject to the requirements of subsection (g).

Not only is the Town’s statutory interpretation incorrect, but it would lead to absurd results. Requiring criminal defendants to file separate civil actions to obtain information necessary to their defense would significantly increase litigation at both the trial and appellate levels, thereby undermining judicial economy. In addition, this interpretation would raise significant constitutional issues as to defendants’ right to counsel and to exculpatory evidence. Our courts interpret statutes to avoid such absurd results and constitutional implications.

Cottle v. Mankin

The minor plaintiff was subjected to an unnecessary spinal fusion surgery by a surgeon (Mankin) who allegedly made a habit of performing unnecessary spinal surgeries on minors. Plaintiffs sued Mankin, the orthopedic practice for which he worked, and several other associated providers.  The plaintiffs presented evidence that the practice and the associated providers were aware of multiple complaints about Mankin, with some of said providers even having filed complaints against him for performing unnecessary surgeries on minors.  The plaintiffs asserted a claim of negligent retention/supervision against the medical practice.  They also asserted claims of breach of fiduciary duty, fraud and constructive fraud against the associated providers for failure to disclose the issues with Mankin to plaintiff or her parents. The trial court entered summary judgment for defendants based in part on the 4-year statute of repose for professional negligence under N.C.G.S. § 1-15(c).

Town of Apex v. Beverly L. Rubin

The Town of Apex sought to condemn Rubin’s land for the purpose of installing a sewer line. The town commenced its condemnation action and began construction on the line, but the trial court held that there was no public purpose and therefore no right to take the property. The Court of Appeals affirmed this ruling, and the Supreme Court denied the town’s Petition for Discretionary Review. Thus, it is the established law of the case that the town had no right to take the land. While Rubin sought post-judgment relief in the original action, the town filed a separate action claiming it took the property by inverse condemnation, a doctrine which only exists for property owners to obtain fair compensation for condemnations, not as an alternative means for the government to take land. In any event, despite the prior ruling that there was no right of condemnation, Apex has simply refused to leave Rubin’s land.

This time the trial court ruled in favor of the town. On appeal, the Court of Appeals reversed and once again held there was no right to condemn, but stopped short of ordering Apex to vacate. Instead, the court indicated that Rubin could file a separate trespass action. The Supreme Court granted cross petitions for discretionary review.

NCAJ, which had previously filed a brief in the Court of Appeals, filed an amicus brief contending that the Court of Appeals was correct that the Town of Apex had no right to take Rubin’s land, especially through its creative and baseless contortions of the doctrine of inverse condemnation. When the previous efforts at condemnation failed, title to the property immediately vested with Rubin, such that the town had no rights in the property at all. Given that Rubin owns the land and the town has no right to be there, the town should be ordered to leave. The original action was never terminated, as Rubin sought post-judgment relief and the court retained in rem jurisdiction over the property itself, which was undisturbed by Apex filing a subsequent action. Thus, the town can be ordered to leave without yet another lawsuit being filed. Moreover, the town’s actions demonstrate a disturbing disrespect for the judiciary and the finality of its judgments, which should be addressed by the Court.

Devalle v. N.C. Sheriff’s Education and Training Standards Commission

Puma Biotechnology, Inc. v. Hedrick Gardner, et al

Puma sued lawyer and law firm for legal malpractice and took a dismissal without prejudice pursuant to Rule 41 of the North Carolina Rules of Civil Procedure. In accordance with the “savings clause” of said rule, Puma re-filed the case within one year. Defendants moved to dismiss, contending that the savings clause only applies to statutes of limitations, not statutes of repose, and that the case was re-filed after the expiration of the four-year statute of repose for professional negligence contained is NCGS 1-15. The trial court dismissed the case, and Puma appealed.

The NCAJ amicus brief points out that the Rule 41 savings clause applies to any case “commenced within the time prescribed therefor,” and that both statutes of limitations and statutes of repose combine to set “the time prescribed therefor.” In fact, NCGS 1-15 contains almost identical language to Rule 41, speaking of lawsuits “commenced within the periods prescribed in this Chapter.” As both statutes of limitations and statutes of repose are prescriptions of time limits, and the initial lawsuit was filed within the times prescribed, the savings clause should apply. The brief further demonstrates that Defendants’ arguments have been rejected previously by our appellate courts, and that affirming the trial court would have far-reaching negative consequences for the rights of all North Carolinians harmed by professional negligence.

Update:In a 2-1 decision, the Court of Appeals agreed with plaintiff and NCAJ, reversing the trial court as to the claims that were brought in the initial complaint. The majority opinion agreed with NCAJ’s amicus brief that “commenced within the time prescribed therefor” means “timely filed,” and that an action timely filed under the applicable statute of limitation and statute of repose may be dismissed and re-filed within one year even if the second filing is beyond the statue of repose. Once a timely-filed complaint is dismissed and re-filed, the new complaint relates back to the time of the original filing for purposes of either type of time restriction.

Bell and Sims v. State of NC

Bell and Sims were both convicted of first-degree murder, with Bell being sentenced to death and Sims being sentenced to life without the possibility of parole. After the convictions, clear evidence arose of the prosecutor’s discriminatory intent during jury selection. Specifically, in a separate case, the prosecutor filed an affidavit to try to explain a history of racial discrimination in jury selection. In an attempt to exonerate himself for racial discrimination, the prosecutor admitted that he had struck a black female juror in the Bell/Sims case not because she was black, but because he was looking for male jurors and a foreman. Apparently, although the prosecutor appeared to understand that racial discrimination in jury selection is unconstitutional under Batson v. Kentucky, he failed to understand that gender discrimination in jury selection is equally unconstitutional under J.E.B. v. Alabama. Thus, he admitted to unconstitutional discrimination. Nonetheless, the Supreme Court of North Carolina denied relief for failure to raise the issue previously, even though the affidavit only became available later.

Bell and Sims are seeking a writ of certiorari form the Supreme Court of the United States. NCAJ joined with the North Carolina Association of Black Lawyers, Emancipate NC, and the North Carolina State Conference of the NAACP in support of the petition.

The brief notes that, as argued in a concurrence by Justice Earls, North Carolina has essentially overruled Batson and J.E.B., often through the application of numerous impenetrable procedural bars to relief. Although there is a significant history of discrimination in jury selection in North Carolina, it is the only state among the 25 most populous states that has never granted meaningful relief to a defendant based upon jury discrimination. The Supreme Court of the United States has historically intervened when state courts refuse to apply its precedents. This would be an appropriate case for such intervention, particularly given the history of the prosecutor in question and his admission of unconstitutional intent in this case.

Land v. Whitley, et al.

In the Matter of: Alicia Jurney and Michael Newman

This case arises from a defamation action filed by the Clerk of Superior Court of Moore County against two defendants, including a District Court Judge of the same County. Attorneys Alicia Jurney and Michael Newman represent the defendants in the defamation case. As part of the representation of their clients, attorneys Jurney and Newman sought to disqualify Judge Michael Stone. According to trial court filings, Judge Stone (1) was a material witness in the underlying case, and (2) at times material was represented personally by the same attorney representing the plaintiff. Related to the motion to disqualify, the Judge issued show cause orders threatening criminal contempt against Jurney and Newman. They then retained counsel (Alan Schneider and Tom Van Camp), who filed a Petition for Writ of Prohibition and Petition for Writ of Mandamus in the Court of Appeals seeking to halt the contempt proceedings.

NCAJ joined both NCADA and a group of retired judges in an amicus brief in support of Petitioners. In addition to the rare collaboration between NCAJ and NCADA, the retired judges’ group was a bipartisan group from all levels of the judiciary, including Justice Barbara Jackson, Justice Rober N. Hunter, Jr., Judge Lucy N. Inman, Judge Richard D. Boner, Judge Michael Denning, and Judge Alice Stubbs

The amicus brief contends that Jurney and Newman merely discharged their duties as officers of the court to protect, rather than undermine, the integrity of the judicial process. In addition, the brief argues that the threat of criminal contempt for raising the issue of disqualification would have a chilling effect on attorneys raising important issues, and that the better practice would be to employ the established procedures of the State Bar to address whether any impropriety had occurred.

RESULT: After the Petition and the Amicus Brief were filed, the special prosecutor investigating the charges dismissed the show cause orders with prejudice, finding no probable cause that the attorneys had acted improperly.

Beach v. Grady, et al

Eric Griffith died in the Harnett County Detention Center after being jailed for failure to pay a $320.00 fine. The lawsuit alleges that he was denied prompt and necessary medical care despite reporting drug withdrawals upon intake, his aunt and pastor relaying their concerns about drug withdrawals while detained, Mr. Griffith asking jailers for help with his withdrawals, allegedly obtaining and taking drugs smuggled in by a jail employee, and his cellmate requesting help when Mr. Griffith was experiencing an ultimately fatal  medical emergency. Under these circumstances, medical care and monitoring were mandatory, including under the jail’s own policies. Defendants’ motion for summary judgment was denied as to all but one Defendant, and the remaining Defendants appealed to the Fourth Circuit.

NCAJ worked in conjunction with Disability Rights North Carolina to file an amicus brief in support of Plaintiff. As stated in the brief:

Amici curiae write to highlight medical literature on evidence-based medical treatment for withdrawal syndrome and North Carolina’s regulatory jail reforms, which—in addition to the clearly established case law cited in Plaintiff-Appellee’s Brief—demonstrate that prior to June 2021, no reasonable jail official could have been unaware of their constitutional obligations to provide the bare minimum, evidence-based medical care.

Defendants contend that their constitutional duties were not sufficiently established at the time of Mr. Griffith’s death. The amicus brief rebuts this contention with a detailed review of the medical, statistical, public health, and regulatory evidence which clearly establishes that the issues leading to Mr. Griffith’s death were well established long before he was detained. The illegality of refusing care to Mr. Griffith was well known, as were the potentially dire consequences of doing so.