Today's COA Decisions

Today the NC Court of Appeals released 17 published decisions, five of which are (unanimous) criminal cases. Only one dissent among the cases. Not much controversy in this batch. No significant business decisions.

Yesterday's Supreme Court Orders

Yesterday the NC Supreme Court released orders on petitions. The Court granted discretionary review in four cases: two criminal, two civil. One civil case, Blankenship v. Barlett, arises from a Court of Appeals decision holding that the constitutional principle of “one person, one vote” doesn't apply to the election of judges. The lawsuit challenges the manner in which Superior Court districts have been drawn, alleging that the Constitution requires that the districts must be proportional in terms of population. The other civil case is an insurance case involving the duty to defend, Harleysville Mut. Ins. Co. v. Buzz Off Insect Shield, L.L.C.. (For our earlier post on that case, see here.) The petitioner had an appeal as of right based on Judge Geer's dissent, and yesterday the Supreme Court granted a PDR on an additional issue not raised by Judge Geer's dissent (involving the application of the policy's "prior publication exclusion" to false advertising claims; the exclusion applies to "personal and advertising injury" if the publication occurred before the policy commenced).

Yesterday's Supreme Court Opinions

Yesterday the NC Supreme Court announced "opinions" in 11 cases. One of the cases was dismissed on the ground that discretionary review was improvidently allowed. Six of the cases involved one-sentence per curiam dispositions with no opinions: five affirmances and one reversal (the reversal was a workers comp case where the Court adopted a dissent in the Court of Appeals). Of the remaining four cases with actual opinions, two were very short, unanimous opinions involving some uncontroversial stuff (in one case, the failure to assign error to finding that DENR was negligent meant that the negligence finding sticks on appeal, with the consequence that the public duty doctrine doesn't apply; in the other case, the Court remanded to have the trial court make findings necessary to resolve a criminal defendant's motion to suppress evidence).

As for the remaining two opinions, one was a criminal case in which the the Supreme Court said it was unable "to determine the proper disposition of the Court of Appeals' decision on account of inconsistencies in both the majority and dissenting opinions." The Supreme Court found statements in the majority opinion to be "conflicting" and held that one of the statements misapplied the governing legal test.

In the other opinion, which involved judicial misconduct by a district judge, the Supreme Court ruled that the Judicial Standards Commission's recommendation of censure wasn't severe enough; the Court ordered that he be disqualified from holding any further judicial office in this State and ineligible for retirement benefits. The order arose from comments the judge had made about a party's ethnicity and nationality. When an SBI agent investigated the judge's misconduct, the judge made "untruthful, deceptive, and inconsistent statements" to the SBI agent. The judge also attempted to "influence the recollections" of witnesses. In deeming disqualification appropriate, the Supreme Court found that the judge had demonstrated a pattern of disregard for the integrity of the judicial office, citing to its decision earlier ordering that this same judge censured and suspended on the basis of other misconduct: (1) upon his election to be a district court judge, he sold his private practice files and leased his building to an attorney, and when that same attorney then appeared as counsel in cases before the judge, the judge failed to disclose their business relationship; (2) the judge made false statements from the bench to a district attorney in an effort to have the DA sign a remittal of disqualification; (3) the judge had created a hostile work environment for members of the DA's staff; and (4) the judge was "habitually rude and condescending to those appearing before him in the courtroom." Yesterday's decision concluded that the judge's "conduct throughout his tenure as a district court judge has been fraught with disrespect for the parties appearing before him, a persistent failure to be truthful, and a disregard for the laws and ethical rules that govern the judiciary."

Learn More About The Judicial Candidates In Upcoming Elections

You can learn about the Supreme Court candidates here and the Court of Appeals candidates here.

COA Opinions 10/7

The COA filed its latest batch of opinions yesterday, with 17 published civil cases. Only 1 of the 17 has a dissent -- Bird v. Bird, a domestic case, with Judge Jackson dissenting from a majority authored by Judge Arrowood.

Attorney Statement To Potential Witness Immune From Suit

In Jones v. Coward, the COA held that at attorney's statements made to potential witnesses, whether before or during trial, whether in or out of court, are privileged and cannot be the basis of a slander suit so long as they are not palpably irrelevant to a suit the attorney is working on.

In Jones, the defendant lawyer, working on a case in which plaintiff Jones was a defendant, approached a potential witness in the case against Jones while the potential witness was eating breakfast in a public place. The lawyer asked or told the potential witness about Jones' being "run out of town for drugs." Jones sued for slander, negligence, and intentional infliction of emotional distress. The defendant got the claims dismissed, and Jones appealed.

The COA affirmed the dismissal and held that "an attorney's statement or question to a potential witness regarding a suit in which that attorney is involved, whether preliminary to trial, or at trial, is privileged and immune from civil action for defamation, provided the statement or question is not so palpably irrelevant to the subject matter of the controversy that no reasonable man can doubt its irrelevancy or impropriety ..."

COA: NC Has Persoanl Jurisdiction Over Broker Of Property Insurance

In Wells Fargo Bank v. Affiliated FM Ins. Co., the COA held that the trial court properly denied an insurance broker's motion to dismiss for lack of personal jurisdiction where the broker helped procure insurance on North Carolina property.

The plaintiff alleged that the broker misrepresented that an apartment complex in Greensboro was insured but then failed to provide the coverage that the broker represented existed. The broker sought to be dismissed from the suit, claiming it did not have any offices, property, agents, or employees in North Carolina, did not advertise in North Carolina or in media that might reach North Carolina, and did not solicit potential clients or do business in North Carolina.

The plaintiff presented evidence that the broker (1) voluntarily assumed an obligation to obtain insurance on North Carolina real estate, (2) provided "Evidence of Property Insurance" forms indicating that the North Carolina real estate was covered, and (3) received compensation for procuring the insurance.

Because of the plaintiff's evidence and because the plaintiff's claims against the broker arose out of the broker's conduct directed at North Carolina property, the COA held that N.C. Gen. Stat. § 1- 75.4(6), which provides long-arm jurisdiction as to local property and which has not previously been held to apply to insurance brokers, applied and that the broker could properly be brought into NC courts.

NC COA Forces State To Arbitration

In State v. Philip Morris US, INC, the COA enforced an arbitration provision in a settlement agreement between the state and tobacco companies over compensation for smoking-related medical costs, where the state contracted and arbitration was mandated by the contract.

Judicial Races

The Greensboro News-Record has endorsed Bob Edmunds to retain his Supreme Court seat. Justice Edmunds is from Greensboro.

He also picked up the endorsement of Asheville's Citizen-Times, which says "Edmunds brings a thoughtful approach and calm, impartial demeanor to the bench."

Both papers deem Suzanne Reynolds a capable challenger but conclude that Justice Edmunds has earned reelection.

Upcoming October Court Activity

The NC Court of Appeals doesn't release opinions today (even though 2 weeks have passed since the last release). The next release will be Tues. Oct. 7.

Three days later, on Oct. 10, the NC Supreme Court is scheduled release orders on petitions, and thus we expect that the Court will also release opinions that day.

The NC Court of Appeals will hear oral arguments on Oct. 6-9 and Oct. 21-22, a total of 19 cases. The NC Supreme Court will hear oral arguments on Oct. 13-15, a total of 13 cases.

Of course, the US Supreme Court will open its term with arguments on Monday Oct. 6. The Court will hear a total of 14 arguments in October (for the schedule, see here).

The Fourth Circuit just finished its first sitting of the term, and its next round of arguments will occur Oct. 28-Oct. 31, including an en banc argument on Oct. 28. The en banc case involves the constitutionality of Va's statute criminalizing partial-birth abortion. The panel had voted 2-1 to strike down the statute (Michael and Motz in majority; Niemeyer in dissent).