COA Opinions

Today the Court of Appeals released 19 published opinions, 11 of them civil, two juvenile, and six criminal. We'll have more on the relevant cases from this batch shortly.

Today at the Supreme Court (3/15/11)

Today, Tuesday, March 15, 2011, the North Carolina Supreme Court will hear oral arguments in the following cases:

State v. Yencer - Whether the First Amendment precludes private colleges and universities who have a religious history and tradition from having a campus police force that exercises the State's arrest power.

Appellant's New Brief
Appellee's New Brief
Amicus Brief by Fraternal Order of Police
Amicus Brief by Trustees of Davidson College
Amicus Brief by NC Association of Campus Law Enforcement Administrators, The North Carolina Sheriff's Association, and the North Carolina Association of Chiefs of Police
Amicus Brief by the North Carolina Independent Colleges and Universities
Amicus Brief by the North Carolina Advocates for Justice
Court of Appeals' Opinion
Record on Appeal


Lee v. Gore - Whether a deficiency in a law enforcement officer's affidavit divests the Division of Motor Vehicles of authority to suspend the driving privileges of a person who has refused to submit to chemical analysis when charged with an implied consent offense.

Appellant's New Brief
Appellee's New Brief
Court of Appeals' Opinion
Record on Appeal

Gardner v. Tallmadge - Whether a Court of Common Please in Ohio has subject matter jurisdiction to enter a cognovit judgment against a North Carolina debtor and whether the Full Faith and Credit Clause requires North Carolina's courts to recognize and enforce a valid judgment in the state of Ohio.

Appellant's New Brief
Appellee's New Brief
Court of Appeals' Opinion
Record on Appeal

Today at the Supreme Court (3/14/11)

Today, Monday, March 14, 2001, the North Carolina Supreme Court will hear oral arguments in the following cases:

Read more »

Supreme Court Opinions

While many in North Carolina consider the Friday of the ACC Tournament to be a holiday, the North Carolina Supreme Court does not.  Today, the North Carolina Supreme Court issued opinions in four cases.  We will have more on any cases of interest after the basketball games are over later.

Today at the Court of Appeals (3/10/11)

Today, Thursday, March 10, 2011, a panel of the North Carolina Court of Appeals comprised of Judges Stroud, Robert N. Hunter, Jr., and Thigpen will hear oral argument in the following case:

Meehan v. American Media International, LLC - Dr. Brian Meehan is one of an extensive list of individuals who were negatively impacted by their association with what has become known as the Duke Lacrosse Case.  During the relevant time period Meehan served as the Executive Director of DSI, a company that engaged in DNA testing. 

In the spring of 2006, the Durham Police Department contacted DSI to conduct DNA testing related to the Duke Lacrosse Case.  Meehan contends that after DSI completed DNA testing on 46 cheek swabbings taken from members of the Duke Lacrosse team, he informed the Durham County District Attorney and several law enforcement officer that there were no incriminating matches between the samples and the specimens taken from the victim.  Meehan also allegedly informed the District Attorney and law enforcement that he discovered traces of DNA from other unidentified males on the alleged victim's undergarments. 

DSI subsequently issued a written report regarding the results of its testing.  A dispute subsequently arose in the criminal proceeding over whether DSI's report fully and accurately disclosed the results of its testing.  The lawyers for the Duke Lacrosse Players accused DSI of conspiring with the District Attorney to withhold exculpatory evidence.  Meehan agreed to testify in court regarding the testing and the report.  When he was placed on the stand, Meehan was questioned exclusively by the defense attorneys because the District Attorney declined to ask any questions.  Meehan also appeared on 60 Minutes - although the circumstances surrounding Meehan's appearance are in question.  The controversy over the testing and the report led to substantial negative publicity for DSI. 

DSI subsequently terminated Meehan.  Meehan's termination letter cited "poor communications" in his "failure to adequately explain DSI's role in [the Duke Lacrosse Case] to the public and to the lacrosse families during the multiple times [he has] testified."  Meehan contends that these reasons for his termination were merely a pretext for dismissing him prior to the date Meehan was owed a "milestone payment" from DSI.

Meehan sued DSI and raised claims of breach of contract, breach of a covenant of good faith and fair dealing, a violation of North Carolina's wage and hour act, conspiracy to engage in wrongful conduct, and tortuous interference with contract.  After conducting discovery, the Defendants moved for summary judgment and Meehan moved for partial summary judgment.  The Court denied Meehan's motion and granted the Defendants' motion. 

On appeal Meehan argues that the trial court erred by granting summary judgment for the Defendants due to the existence of genuine issues of material fact.

Briefs and Other Documents:

Record on Appeal (Part 1)
Record on Appeal (Part 2)
Record on Appeal (Part 3)
Record on Appeal (Part 4)
Appellant's Brief
Appellee's Brief

Today at the Court of Appeals (3/9/11)

Today, Wednesday, March 9, 2011, a panel of the North Carolina Court of Appeals comprised of Judges Bryant, Elmore, and Geer will hear oral argument in the following case:

Marion Partners, LLC v. Weatherspoon & Voltz, LLP - This matter involves a claim of legal malpractice where the plaintiffs allege that their attorney failed to properly advise them of material changes in a commercial lease.  The appellants are involved in the business of purchasing properties and then leasing the properties to CVS Corporation, a national drug store chain.  According to the plaintiffs, CVS added a new provision to the standard lease agreement that shifted the responsibility to pay for any taxes resulting from a sale of the property and a reassessment of the property value from CVS to the plaintiffs.  The plaintiffs allege that their attorney failed to advise them of this provision or its implications, resulting in substantial damages.  After the parties conducted discovery, the defendants sought and were granted summary judgment as to all of the plaintiffs' claims.

On appeal the plaintiffs assert that the trial court erred by (1) disregarding statements in the plaintiff's affidavits because the statements were "not in direct contradiction" with the plaintiff's deposition testimony, but instead only served to "elaborate on their prior sworn testimony"; (2) granting summary judgment despite the existence of genuine issues of material fact; and (3) dismissing plaintiff's claims for negligent misrepresentation and breach of contract claim when they are allegedly based on different facts from the legal malpractice claim.

Briefs and Other Documents
Record on Appeal
Appellant's Brief
Appellee's Brief

Today at the Court of Appeals (3/8/11)

Today, Tuesday, March 8, 2011, a panel of the North Carolina Court of Appeals comprised of Judges Robert C. Hunter, Stephens, and Ervin will hear oral arguments in the following cases:

State v. Carter - This appeal, which arises out of the fatal shooting of Winston-Salem Police Sergeant Howard Plouff, raises questions regarding whether the trial court should have suppressed statements made by Carter before he was given Miranda warnings; whether African-American jurors were wrongly excluded from the jury; whether the trial court erred in denying Carter's motion to dismiss the indictment; and whether the trial court erred by overruling Carter's objection to the submission of aggravating factors to the jury.

Record on Appeal
Appellant's Brief
Appellee's Brief

Wake Radiology v. NC DHHS - This appeal deals with an appeal of the decision by various State agencies to grant a Certificate of Need to Pinnacle Health Services of North Carolina to acquire a mobile magnetic resonance imaging scanner to serve various sites in Wake and Johnston Counties.

Record on Appeal - Part 1
Record on Appeal - Part 2
Record on Appeal - Part 3
Record on Appeal - Part 4
Record on Appeal - Part 5 (Not Available Online)
Appellant's Brief
Appellee NC DHHS's Brief
Appellee Intervenor Pinnacle Health Services' Brief

Today at the Court of Appeals (3/7/11)

Today, March 7, 2011, beginning at 1:00 pm, a panel of the North Carolina Court of Appeals comprised of Chief Judge Martin and Judges McGee and McCullough is scheduled to hear oral argument in the following cases:

State v. Goode - The Court of Appeals will consider whether a trial court had jurisdiction to impose consecutive life sentences without parole against a criminal defendant after the defendant's death sentence was vacated by a federal court on the basis of constitutionally inadequate counsel.

Record on Appeal
Appellant's Brief
Appellee's Brief

Primerica Life Insurance Company v. James Massengill & Sons - This appeal raises the question of whether the trial court erred in granting a motion for a judgment not withstanding the verdict that vacated a jury award in a dispute over life insurance proceeds.

Record on Appeal (Part 1)
Record on Appeal (Part 2)
Appellant's Brief
Appellee's Brief

Web Page Printout Deemed Unauthenticated Hearsay

In Rankin v. Food Lion, a unanimous panel of the North Carolina Court of Appeals determined that a trial court cannot consider printouts of web pages when deciding a motion for summary judgment.

Rankin filed a complaint in Mecklenburg County Superior Court alleging that she sustained serious injuries after slipping and falling at a Food Lion in Charlotte, North Carolina.  Defendants subsequently sought, and were granted, summary judgment on the grounds that Defendant Food Lion Store #276 was not a legal entity, Defendants Food Lion, Inc. and Food Town Stores, Inc. no longer existed, and the Defendant Delhaize America, Inc. was a holding company who had no role in the operation of the Food Lion in which Rankin allegedly fell.

On appeal, Rankin contended that the trial court erroneously granted summary judgment to Delhaize because she "presented evidence that the Food Lion store in which [she] was injured is owned by" Delhaize.  In support of this contention, Rankin pointed to "a page printed from the website of the North Carolina Secretary of State [and] an internet posting concerning" Delhaize.  According to Rankin, these documents constituted "proof of evidence of public record" that should have been considered by the trial court.

In an opinion authored by Judge Ervin and joined by Judges Bryant and Steelman, the Court of Appeals rejected Rankin's argument and held that the printouts constituted  "unauthenticated hearsay."  As unauthenticated hearsay would not be admissible at trial, it would have been inappropriate for the trial court to consider it in connection with a motion for summary judgment. 

While the Court of Appeals' opinion held that web page printouts are "unauthenticated hearsay," it provided no specific guidance on what a party needs to do to properly authenticate a web page or how a web page can fit within an exception to the hearsay rule.  Given the ubiquitous nature of the internet, it is likely that the Court of Appeals will have additional opportunities to explain how the rules of evidence apply to the internet.

COA: Order Requiring Foreign Party to Appear for Jurisdictional Discovery Deposition Does Not Affect Substantial Right

Today the Court of Appeals held that an interlocutory order compelling a party who resides in another country to appear in North Carolina for a jurisdictional deposition does not affect a substantial right and is not immediately appealable. The case is K2 Asia Ventures v. Trota.

Defendants, who live in the Phillipines, appealed the trial court's order requiring them to appear to appear for deposition in North Carolina. Defendants acknowledged tha the appeal was interlocutory, but Defendants claimed the order affected a substantial right and thus justified an immediate appeal.

The COA disagreed. The Court noted that discovery issues are not immediately appealable, and found that Defendants' alleged right under Rule of Civil Procedure 30(b)(1) to be deposed only in a county where they reside was not a substantial one. The COA also found that avoiding the expenditure of time and money (Defendants would have to travel from the Phillipines to be deposed) is not a substantial right, and that the order had nothing to do with the issue of venue (which *is* immediately appealable). The Court finally noted that the trial court's order did not violate Defendants' due process rights because the depositions were "obviously" limited to the issue of personal jurisdiction (even though the order did not specify this), and that by appearing for the limited purpose of challenging jurisdiction, Defendants "voluntarily submitted to North Carolina jurisdiction to decide the issue of personal jurisdiction[.]" The Court concluded that no substantial right was affected and that immediate appeal was not warranted, and dismissed the appeal.

Busy Day at the COA

The North Carolina Court of Appeals issued 36 opinions today.  We will review them and post on any cases of interest later.