Advance Sheets Court of Appeals

248 N.C. App.—No. 4 Pages 456-837 248 N.C. App.—No. 4 ADVANCE SHEETS OF CASES ARGUED AND DETERMINED IN THE COURT OF APPEALS OF Pages 456-837 NORTH CAROLINA JANUARY 14, 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 JOHN M. TYSON ANN MARIE CALABRIA LUCY INMAN RICHARD A. ELMORE VALERIE J. ZACHARY DONNA S. STROUD WENDY M. ENOCHS1 ROBERT N. HUNTER, JR. PHIL BERGER, JR.2 CHRIS DILLON HUNTER MURPHY3 MARK DAVIS JOHN S. ARROWOOD4 RICHARD D. DIETZ 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 STEPHENS5 ROBERT H. EDMUNDS, JR. J. DOUGLAS McCULLOUGH6 JAMES C. FULLER 1Appointed 1 August 2016 2Sworn in 1 January 2017 3Sworn in 1 January 2017 4Appointed 24 April 2017 5Retired 31 December 2016 6Retired 24 April 2017 i Clerk DANIEL M. HORNE, JR. Assistant Clerk Shelley Lucas Edwards OFFICE OF STAFF COUNSEL Director Leslie Hollowell Davis 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 ii COURT OF APPEALS CASES REPORTED FILED 2 AUGUST 2016 Acts Ret.-Life Cmtys., Inc. v. Town Seraj v. Duberman ................ 589 of Columbus .................. 456 State ex rel. Comm’r of Ins. Adams v. State of N.C. ............ 463 v. N.C. Rate Bureau ............ 602 Brooksby v. N.C. Admin. Office State v. Abrams .................. 639 of Courts ..................... 471 State v. Ashworth ................ 649 Dion v. Batten ................... 476 State v. Burrow .................. 663 Hatcher v. Matthews .............. 491 State v. Charleston ............... 671 Hubbard v. N.C. State Univ. ........ 496 State v. Cobb .................... 687 In re K.C. ....................... 508 State v. Covington ................ 698 In re W.R.D. ..................... 512 State v. Daughtridge .............. 707 Kimler v. Crossings at Sugar Hill State v. Garrison ................. 729 Prop. Owner’s Ass’n, Inc. ....... 518 State v. Gates .................... 732 Lovin v. Cherokee Cty. ............ 527 State v. Hancock ................. 744 Ocracomax, LLC v. Davis .......... 532 State v. James ................... 751 Radcliffe v. Avenel Homeowners State v. Lee ...................... 763 Ass’n, Inc. .................... 541 State v. Marrero .................. 787 Raymond James Capital Partners, State v. Pigford .................. 797 L.P. v. Hayes .................. 574 State v. Smith .................... 804 Sanderford v. Duplin Land State v. Young ................... 815 Dev., Inc. ..................... 583 Tanner v. Tanner ................. 828 CASES REPORTED WITHOUT PUBLISHED OPINIONS Brown v. Brown ................. 836 State v. Cole ..................... 836 Hale v. Barnes Distrib. ............ 836 State v. Coxton .................. 837 In re A.R. ....................... 836 State v. Paige .................... 837 In re A.R.P. ...................... 836 State v. Phongsavanh ............. 837 In re I.H. ........................ 836 State v. Pritchard ................. 837 In re J.S.F. ...................... 836 State v. Scotland ................. 837 Johnson v. Gooden ............... 836 State v. Williams ................. 837 Khashman v. Khashman ........... 836 Willoughby v. Johnston Nesbit v. Nesbit .................. 836 Mem’l Hosp. .................. 837 Parker v. Arcaro Drive Willoughby v. Johnston Homeowners Ass’n ............ 836 Mem’l Hosp. .................. 837 Perquimans Cnty. v. Vanhorn ....... 836 Willoughby v. Johnston Smith v. Taylor ................... 836 Mem’l Hosp. .................. 837 State v. Cardenas ................. 836 iii HEADNOTE INDEX APPEAL AND ERROR Appeal and Error—appealability—constructive trust—final determination of rights—An appeal in a divorce action was interlocutory but affected a substantial right where a constructive trust on certain funds was imposed in the same order in which the person holding the funds (the husband’s mother) was joined as a neces- sary party. The imposition of the constructive trust and the determination that the monies belonged to the marital estate made a final determination of the final rights of the mother. Tanner v. Tanner, 828. Appeal and Error—constitutional law—effective assistance of counsel— claim based on record evidence—appellate review available—Appellate review of a claim of ineffective assistance of counsel was available where the merits of the claim could be reviewed based on the appellate review. State v. Gates, 732. Appeal and Error—interlocutory orders—common factual nexus— possibility of inconsistent verdicts—The Court of Appeals had jurisdiction over plaintiff’s appeal and defendants’ cross-appeal even though they were both from an interlocutory order. Plaintiff sufficiently alleged a common factual nexus between all her claims such that there existed a possibility of inconsistent verdicts absent immediate appeal of the trial court’s orders. Radcliffe v. Avenel Homeowners Ass’n, Inc., 541. Appeal and Error—interlocutory orders—no substantial right—no inconsistent verdicts—separate and distinct injury—Defendant’s appeal from an interlocutory order was denied. There was no possibility of inconsistent verdicts, and the interlocutory order did not affect a substantial right. Further, plaintiff was seeking a remedy for a separate and distinct negligent act leading to a separate and distinct injury. Sanderford v. Duplin Land Dev., Inc., 583. Appeal and Error—length of jury deliberations—plain error review not applicable—On appeal from defendant’s conviction for second-degree murder, the Court of Appeals rejected defendant’s argument that there was plain error when trial court required the jury to deliberate for an unreasonable length of time. There was no plain error because that standard of review is limited to jury instructions and evidentiary matters, neither of which applied to the trial court’s decision to order further deliberation. State v. Lee, 763. Appeal and Error—mootness—involuntary commitment—An appeal from an involuntary commitment order was not moot where the commitment period had lapsed. The commitment might form the basis for a future commitment, along with other legal consequences. In re W.R.D., 512. Appeal and Error—notice of appeal—sufficient—Defendant’s oral notice of appeal was sufficient to confer jurisdiction on the Court of Appeals where defendant’s exchange with the trial court manifested his intention to enter a notice of appeal. The State did not contend that it was misled or prejudiced in any way. State v. Daughtridge, 707. Appeal and Error—preservation of issue—erroneous instruction—There was no error in a prosecution for discharging a firearm into occupied property where defendant contended that the State did not present substantial evidence that met the trial court’s instruction (which raised a higher evidentiary bar for the State than iv APPEAL AND ERROR—Continued ordinarily used). Defendant did not present the trial court with specific reason- ing, and it was not clear that defendant had preserved the issue for appeal. State v. Charleston, 671. Appeal and Error—untimely pretrial motion—trial court’s discretion—not revisited—Although defendant’s pretrial motion to suppress was untimely, the trial court’s discretionary decision to consider the motion was not revisited on appeal. State v. Cobb, 687. ASSAULT Assault—dismissal of claims—expiration of statute of limitations—The trial court did not err by dismissing plaintiff’s assault claims against defendants Zanzarella, Progelhof, Buccafurri, and Hull, and all but one of her assault claims against defendant Murray based on expiration of the pertinent statute of limitations. Radcliffe v. Avenel Homeowners Ass’n, Inc., 541. ASSOCIATIONS Associations—homeowners’—declaration/covenants—amendment—A homeowners’ association that was formed prior to 1999 was authorized to amend the declaration/covenants where there was nothing in the declaration or the articles of incorporation which expressly prohibited the application of N.C.G.S. § 47F-2-117. N.C.G.S. § 47F-2-117 applies to pre-1999 planned communities where either the terms of the declaration or articles of incorporation do not provide to the contrary or the association has adopted the terms of the Planned Community Act. Kimler v. Crossings at Sugar Hill Prop. Owner’s Ass’n, Inc., 518. Associations—homeowners’—declarations/covenants—amendment—rea- sonable—An

Load more