On May 3, 2022, the North Carolina Court of Appeals issued a large batch of opinions. By my count, twenty-two were published and thirty were unpublished. While history may prove me wrong, none of the published opinions appeared to me to be groundbreaking. Several, however, had interesting issues, facts, or analysis, so once again I’ll provide thumbnail sketches of the ones that caught my eye.
In Forte v. The Goodyear Tire & Rubber Company and Liberty Mutual Insurance Company, COA No. 20-904, arising from the Industrial Commission, the Court addressed the ability of the Full Commission to reconsider evidence that had been brought before the Deputy Commissioner. N.C.G.S. 97-85 provides that reconsideration is appropriate “if good ground be shown.” In this case of first impression, the plaintiff argued that the Full Commission’s opinion and award, which altered the Deputy Commissioner’s award, failed expressly to state any such “good grounds.” The Court held that the Full Commission did not need to set out with specificity the grounds that it found good enough to support reconsideration. In addition, when the Full Commission was silent on this issue, the Court held that it would presume the existence of good grounds “if there is a basis in the record to support that finding in the Commission’s sound discretion” under a manifest abuse of discretion standard of review.
State v. Ballard, COA No.21-202, is another case visiting the Court of Appeals for a second time. The defendant was convicted of armed robbery and several related offenses and, on appeal, the Court of Appeals found no error in an unpublished opinion. The defendant then filed a pro se Motion for Appropriate Relief (MAR), listing six claims of ineffective assistance of counsel (IAC) and two other issues, along with hundreds of pages of supporting documentation. The trial court dismissed all of the defendant’s claims without holding an evidentiary hearing. The defendant appealed the dismissal. The Court of Appeals observed that holding an evidentiary hearing on a MAR is the general rule rather than the exception unless the claims in the MAR present only questions of law or are unsupported by evidence. Here, the defendant’s six IAC allegations were sufficient to merit a hearing, though his remaining issues had been resolved correctly on the pleadings by the trial court. Perhaps most interestingly, the trial court also had issued a gatekeeper order, barring the filing of future MARs by the defendant. Finding that the defendant had no history of frivolous and repetitive filings, the Court of Appeals vacated that portion of the trial court’s order. I’ll note that the size of the defendant’s MAR, with hundreds of pages of exhibits, has the appearance of the type of exuberant pro se filing that causes headaches for busy trial court judges and can be bait for the issuance of a gatekeeping order. Here, the Court of Appeals cited sufficient evidence from the defendant’s exhibits to indicate that there might be some meat on the bones of his IAC claims, presumably leading that Court to give the defendant the benefit of the doubt as to possible future filings.
Appalachian Materials, LLC v. Watauga County and Terry Covell, et. al., COA No. 21-117, is a reminder that no one wants an asphalt plant next door. See Robins v. Town of Hillsborough, 361 N.C. 193 (2007). When the plaintiff applied for a permit to build one in Watauga County, the county denied the request, citing a number of reasons. Upon review in the Superior Court, the judge affirmed the county’s decision on the basis of one of those reasons but did not consider the other reasons. The plaintiff appealed and the Court of Appeals disagreed with the trial judge as to that one reason and reversed, remanding the case to the trial court “for proceedings not inconsistent with” its opinion. On remand, the trial court concluded that it was compelled by the Court of Appeals’ mandate to order Watauga County to issue the permit. The trial court refused to examine the other issues that Watauga County had originally provided for declining to issue the permit. Watauga County appealed again, arguing that the other grounds it had given for its initial refusal to issue the permit constituted legitimate alternative bases for denying the permit. The Court of Appeals reviewed the specific language it had used in the mandate of its first ruling and concluded that the trial court correctly determined that the Court of Appeals’ mandate established the law of the case, did not allow consideration of the other reasons provided by Watauga County, and required the county to issue the permit. I’ve blogged before on the significance of the wording used in a mandate. This case emphasizes the point.
In In the Matter of the Purported Will of John Mark Moore, COA No. 21-441, Mr. Moore executed a will leaving a life estate to Ms. Matthews (his sister), with Ms. Matthews’ daughter as the remainderman. When Mr. Moore died, Ms. Matthews began probate proceedings. Ms. McDougald filed a caveat and served Requests for Admission on Ms. Matthews, asking her to admit that Ms. McDougald was Mr. Moore’s only biological child. When Ms. Matthews never responded to the Requests for Admission, the trial court deemed them admitted, and granted summary judgment in favor of Ms. McDougald. On review, instead of focusing on the issues of the deemed admissions or the grant of summary judgment, the Court of Appeals addressed the question of the trial court’s subject matter jurisdiction, considering whether McDougald had standing to bring her caveat. Because there was no evidence that Mr. Moore had a prior will, Ms. McDougald had standing to bring her action only if she would take under North Carolina’s intestacy statutes. N.C.G.S. 29-19 sets out the conditions under which a child born out of wedlock may take from a putative father, and the Court of Appeals concluded that Ms. McDougal failed to meet any of those conditions. Since McDougald lacked standing to bring the caveat, the trial court never had jurisdiction in the matter, even though Ms. Matthew’s failure to respond to the Request for Admissions meant that Ms. McDougald’s status as Mr. Moore’s only biological child was admitted. Accordingly, the Court of Appeals vacated the trial court’s ruling and remanded the case for dismissal. The interplay of statutes in this case matters, as does the evidence, so be sure to read the opinion if you practice in this area. While this case is not only a warning to respond in timely fashion to Requests for Admissions, it is also a sharp reminder that the question of subject matter jurisdiction can be raised at any time.
Upchurch v. Harp Builders and Valentine Joseph Cleary, COA No. 21-472, involves a car crash that occurred on 19 December 2015. The plaintiff filed his Complaint on 19 December 2018. The defendant filed an Answer and Counterclaim the next day, on 20 December 2018. The plaintiff moved to dismiss the defendant’s Counterclaim, arguing that it was barred by the three-year statute of limitations. The trial court dismissed the counterclaim with prejudice and the Court of Appeals affirmed. The defendant argued on appeal that the COA had wrongly decided PharmaResearch Corp. v. Mash, 163 N.C. App. 419 (2004), in which it held that a counterclaim did not relate back to a plaintiff’s original filing. The basis of the defendant’s argument was that PharamaResearch improperly had overruled an earlier COA opinion, In re Gardner, 20 N.C. App. 610 (1974), which held that a counterclaim did relate back to the original claim. According to the defendant, In re Gardner was the controlling case and, as a result, his instant counterclaim was not barred by the statute of limitations. The COA turned to the case that keeps on giving, In re Civil Penalty, 324 N.C. 373 (1989), to affirm the trial court. The COA observed that the PharmaResearch court found that Gardner’s 1974 holding had been superseded by the subsequent adoption of the Rules of Civil Procedure (the “Rules”). Between the 1974 opinion in Gardner and the 2004 opinion in PharmaResearch, the Supreme Court of North Carolina held in Burcl v. North Carolina Baptist Hospital, Inc. 306 N.C. 214 (1982), that where pre-Rule decisions were inconsistent with the Rules, the Rules should apply. Thus, Gardner was superseded by the Rules, was no longer good law, and the rule set out in PharmaReseach applied to bar the defendant’s counterclaim. Because this result appears to reward plaintiffs who are willing to risk waiting until the last minute to file complaints as a way of avoiding counterclaims, the defendant here, who appears to be left without recourse, is undoubtedly disappointed with the outcome.
In Re: Public Records Request To DHHS In Connection With The Death Of John Neville, COA No. 21-495, also emphasizes the importance of following the Rules of Civil Procedure. Neville died while in custody and, following an investigation, the State Bureau of Investigation charged six defendants with involuntary manslaughter and provided a copy of its investigative files to Dr. Lantz, a pathologist and county medical examiner. Around the same time, reporters filed a public records request for documents relating to the investigation from the NC Department of Health and Human Services (the “DHHS”). DHHS notified the Forsyth County District Attorney that it intended to release those documents, which included portions of the SBI’s investigation, even though the charges against the six defendants were still pending. The District Attorney filed an objection to the public records request and sought a protective order, arguing that release of these documents would result in the disclosure of aspects of the criminal investigation as well as the revealing of confidential medical matters. Following a hearing, the trial court granted the media’s motion to dismiss the District Attorney’s filing. The District Attorney appealed but the Court of Appeals dismissed the appeal without considering the merits.. Instead, the Court found that the District Attorney’s filings initiated a special proceeding but the District Attorney failed to issue summonses or serve any of the participating members of the media as required by Rule of Civil Procedure 4(a). Accordingly, the Court of Appeals lacked jurisdiction to consider the matter. The Court also found a second jurisdictional defect, noting that N.C.G.S. 132-9 and related cases prohibited the state from bringing an action to prevent the disclosure of public records. Instead, the person making the public request is entitled to initiate judicial action to seek enforcement of its request.
There are plenty of lessons for practitioners in this batch of opinions, but the key takeaway is always to keep an eye on release dates and make sure that no opinion affecting your area of practice slips by unread.