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Advance Sheets Court of Appeals 251 N.C. App.—No. 1 Pages 1-371 251 N.C. App.—No. 1 ADVANCE SHEETS OF CASES ARGUED AND DETERMINED IN THE COURT OF APPEALS OF NORTH CAROLINA Pages 1-371 MARCH 8, 2019 MAILING ADDRESS: The Judicial Department P. O. Box 2170, Raleigh, N. C. 27602-2170 COMMERCIAL PRINTING COMPANY PRINTERS TO THE SUPREME COURT AND THE COURT OF APPEALS THE COURT OF APPEALS OF NORTH CAROLINA Chief Judge LINDA M. McGEE Judges WANDA G. BRYANT RICHARD D. DIETZ ANN MARIE CALABRIA JOHN M. TYSON RICHARD A. ELMORE LUCY INMAN DONNA S. STROUD VALERIE J. ZACHARY ROBERT N. HUNTER, JR. PHIL BERGER, JR.1 CHRIS DILLON HUNTER MURPHY2 MARK DAVIS JOHN S. ARROWOOD3 Emergency Recall Judges GERALD ARNOLD RALPH A. WALKER Former Chief Judges GERALD ARNOLD SIDNEY S. EAGLES, JR. JOHN C. MARTIN Former Judges WILLIAM E. GRAHAM, JR. K. EDWARD GREENE JAMES H. CARSON, JR. RALPH A. WALKER J. PHIL CARLTON HUGH B. CAMPBELL, JR. BURLEY B. MITCHELL, JR. ALBERT S. THOMAS, JR. HARRY C. MARTIN LORETTA COPELAND BIGGS E. MAURICE BRASWELL ALAN Z. THORNBURG WILLIS P. WHICHARD PATRICIA TIMMONS-GOODSON DONALD L. SMITH ROBIN E. HUDSON CHARLES L. BECTON ERIC L. LEVINSON ALLYSON K. DUNCAN JAMES A. WYNN, JR. SARAH PARKER BARBARA A. JACKSON ELIZABETH G. McCRODDEN CHERI BEASLEY ROBERT F. ORR CRESSIE H. THIGPEN, JR. SYDNOR THOMPSON ROBERT C. HUNTER JACK COZORT LISA C. BELL MARK D. MARTIN SAMUEL J. ERVIN, IV JOHN B. LEWIS, JR. SANFORD L. STEELMAN, JR. CLARENCE E. HORTON, JR. MARTHA GEER JOSEPH R. JOHN, SR. LINDA STEPHENS4 ROBERT H. EDMUNDS, JR. J. DOUGLAS McCULLOUGH5 JAMES C. FULLER WENDY M. ENOCHS6 1Sworn in 1 January 2017 2Sworn in 1 January 2017 3Appointed 24 April 2017 4Retired 31 December 2016 5Retired 24 April 2017 6Appointed 1 August 2016. Term ended 31 December 2016. i Clerk DANIEL M. HORNE, JR. Assistant Clerk Shelley Lucas Edwards OFFICE OF STAFF COUNSEL Director Leslie Hollowell Davis7 Assistant Director David Alan Lagos Staff Attorneys John L. Kelly Bryan A. Meer Eugene H. Soar Nikiann Tarantino Gray Michael W. Rodgers Lauren M. Tierney Justice D. Warren ADMINISTRATIVE OFFICE OF THE COURTS Director Marion R. Warren Assistant Director David F. Hoke OFFICE OF APPELLATE DIVISION REPORTER H. James Hutcheson Kimberly Woodell Sieredzki Jennifer C. Peterson 7Retired 31 August 2018. ii COURT OF APPEALS CASES REPORTED FILED 20 DECEMBER 2016 Beal v. Coastal Carriers, Inc. ....... 1 Moch v. A.M. Pappas Bradley Woodcraft, Inc. v. Bodden ... 27 & Assocs., LLC ................ 198 Corbett v. Lynch ................. 40 News & Observer Publ’g Co. Corwin v. British Am. v. McCrory .................... 211 Tobacco PLC ................. 45 Patillo v. Goodyear Tire Goodwin v. Four Cty. Elec. & Rubber Co. ................. 228 Care Tr., Inc. .................. 69 State v. Curlee ................... 249 Head v. Gould Killian CPA State v. Johnson ................. 260 Grp., P.A. ..................... 81 State v. Kirkman ................. 274 In re Estate of Phillips ............ 99 State v. Martinez ................. 284 In re J.A.M. ...................... 114 State v. Miller .................... 297 In re M.Z.M. ..................... 120 State v. Moore ................... 305 In re S.A.A. ...................... 131 State v. Mung .................... 311 In re Thompson .................. 138 State v. Rios ..................... 318 Kanellos v. Kanellos .............. 149 State v. Robinson ................ 326 Lopp v. Anderson ................ 161 State v. Schalow ................. 334 Mauney v. Carroll ................ 177 Wiley v. L3 Commc’ns Vertex Mills v. N.C. Dep’t of Health Aereospace, LLC .............. 354 & Human Servs. ............... 182 CASES REPORTED WITHOUT PUBLISHED OPINIONS City of Greensboro v. Fewell ....... 369 State v. Bowes ................... 370 Crowder v. Baldor Elec. ........... 369 State v. Brown ................... 370 Gentry v. Brooks ................. 369 State v. Cooper .................. 370 Hardin v. Coulston ............... 369 State v. Crosby ................... 370 Harmon v. Harmon ............... 369 State v. Fennell .................. 370 Henderson v. Henderson .......... 369 State v. Ferrell ................... 370 In re B.E. ....................... 369 State v. Lucas .................... 370 In re C.A.G. ..................... 369 State v. Mitchell .................. 370 In re D.J.W-P. .................... 369 State v. Moss .................... 370 In re D.M. ....................... 369 State v. Patton ................... 371 In re Hendrick ................... 369 State v. Rodriguez ................ 371 In re K.A.E. ..................... 369 State v. Shabazz .................. 371 In re L.A.T. ...................... 369 State v. Sheperd .................. 371 In re Q.W. ....................... 369 State v. Smallwood ............... 371 In re T.J.T. ....................... 369 State v. Walker ................... 371 Integon Nat’l Ins. Co. v. King ....... 370 State v. Whitaker ................. 371 Sadler v. Hall .................... 370 State v. Williams ................. 371 Shelley v. Cty. of Henderson ....... 370 State v. Wilson ................... 371 Snelson v. Snelson ............... 370 State v. Younts ................... 371 Sparrow v. Tyco Integrated Sec. .... 370 Sylvester v. Sylvester ............. 371 State v. Bell ..................... 370 iii HEADNOTE INDEX ABATEMENT Abatement—incompetency proceeding—death of respondent—The trial court lacked subject matter jurisdiction in an incompetency proceeding to enter the Hinnant order and any other substantive orders after respondent’s death because the matter abated upon respondent’s death on 2 October 2014. The orders entered after respondent’s death were vacated. In re Thompson, 138. ACCOUNTANTS AND ACCOUNTING Accountants and Accounting—professional negligence—tax preparation and filing—summary judgment—Plaintiff sufficiently alleged and pled the ele- ments of professional negligence to defeat defendants’ motion for summary judg- ment. Viewing the evidence in the light most favorable to plaintiff, a reasonable fact finder could determine defendants negligently failed to file, deliver, or provide plain- tiff with her completed tax returns for her to timely file, and their failure resulted in plaintiff’s inability to claim a tax refund or credit. Head v. Gould Killian CPA Grp., P.A., 81. APPEAL AND ERROR Appeal and Error—appealability—denial of motion to amend—intent inferred from notice of appeal—The Court of Appeals had jurisdiction to review the trial court’s denial of plaintiff’s motion to amend along with the trial court’s grant of the Non-Profit Trust’s motion to dismiss. Plaintiff’s intent could be inferred from the notice of appeal and there was no indication that the Non-Profit Trust had been misled by plaintiff’s inadvertent omission of the motion to amend ruling from the notice of appeal. Goodwin v. Four Cty. Elec. Care Tr., Inc., 69. Appeal and Error—appealability—no findings or conclusions—relevant evi- dence not disputed—Appellate review of the denial of defendant’s speedy trial motion to dismiss was not precluded despite the trial court’s failure to articulate findings or conclusions. None of the evidence relevant to the motion was disputed. State v. Johnson, 260. Appeal and Error—briefs—argument incorporated by reference—aban- doned—The Court of Appeals rejected an attempt by defendant to incorporate an argument by reference due to the page limitations of the Court of Appeals, which defendant conceded it sought to avoid by referencing outside arguments rather than presenting them in the brief. The argument was treated as abandoned. Wiley v. L3 Commc’ns Vertex Aereospace, LLC, 354. Appeal and Error—improper notice of appeal—certiorari—Rule 2— Defendant’s petition for certiorari was allowed and, to the extent defendant chal- lenged a guilty plea not normally appealable, Rule 2 of the Rules of Appellate Procedure was invoked where defendant did not give a proper notice of appeal from his motion to suppress and sought to challenge the procedures in his plea hearing. State v. Kirkman, 274. Appeal and Error—improper notice of appeal—resentencing—Defendant’s argument that the trial court was divested of jurisdiction when he appealed from the first, erroneous judgment against him was not considered where defendant had conceded that his notice of appeal was defective. Certiorari was granted. State v. Kirkman, 274. iv APPEAL AND ERROR—Continued Appeal and Error—interlocutory orders and appeals—final child custody and visitation order—Plaintiff’s appeal from an interlocutory child custody order was immediately appealable under N.C.G.S. § 50-19.1. The child custody order was permanent since all issues relating to child custody and visitation had been resolved. Kanellos v. Kanellos, 149. Appeal and Error—interlocutory orders and appeals—substantial right— common factual nexus—potential for inconsistent verdicts—Plaintiff’s appeal from an interlocutory order affected a substantial right and was immediately appeal- able. The present appeal presented overlapping factual issues concerning plaintiff’s business relationship with defendants. There was a potential for inconsistent verdicts based upon a common factual nexus. Head v. Gould Killian CPA Grp., P.A., 81. Appeal and Error—Medicaid disability—agency decision—insufficiently detailed for review—In a case involving Medicaid disability benefits, the decision by the Department of Health and Human Services to deny benefits was remanded because the decision lacked the detailed analysis necessary for meaningful appellate review. Mills v. N.C. Dep’t of Health & Human
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