NCLW Legal Newsmakers 2024

LEGAL NEWSMAKERS 2023

Each day, lawyers in North Carolina contribute to the development of the law in our state. In this section, we put a spotlight on seven attorneys who handled cases that raised challenging legal issues and answered key questions.

The honorees practice in the private sector

and in the public interest in Charlotte, Raleigh, and elsewhere. Their practices range from business litigation to real estate disputes to personal injury to municipal and government law.

All are being celebrated for the newsworthy developments in the law they achieved in 2023.

THE HONOREES

CATHARINE E. EDWARDS

In a contentious and highly publicized lawsuit, Cate E. Edwards helped the family of a man shot and killed by a Raleigh police officer reach a $1.25 million settlement with the city in 2023 — just two days before the trial was scheduled to begin.

Thirty-year-old Soheil Mojarrad was shot eight times by Officer William Brett Edwards after Mojarrad took a cellphone from a gas station and walked away. Mojarrad, the victim of a traumatic brain injury in a 2012 car accident, suffered from a history of mental illness and was known to the police. While Edwards claimed that Mojarrad pulled out a knife when confronted, his body camera was not turned on.

On behalf of Mojarrad’s family, Edwards filed suit in June 2020 against the officer, the city of Raleigh, the police chief and the city manager at the time, Cassandra Deck-Brown and Ruffin Hall, respectively. According to the complaint, Mojarrad did not have a knife in his hand when he was shot, and Edwards was negligent in his failure to turn on his body camera and unjustified in his use of lethal force, resulting in a violation of Mojarrad’s civil rights and his wrongful death.

Anthony Fox and Daniel E. Peterson clarified an important point of law for municipalities across the state in 2023 with their work on Town of Midland v. Harrell. Siding with Fox and Peterson’s client, the North Carolina Supreme Court held that the town of Midland had satisfied its procedural requirements to bring a lawsuit against a developer after it failed to repair certain streets in the Bethel Glen subdivision.

The opinion ended a debate that arose after a 2019

North Carolina Court of Appeals ruling in State ex rel. City of Albemarle v. Nance.

In the Midland case, the developer argued that Nance required municipalities to obtain preauthorization from their governing board before bringing suit in the name of the municipality and that Midland did not have standing to sue because it lacked such approval.

Fox and Peterson offered the court a different interpretation of Nance, taking the position that a

Edwards Beightol Raleigh

The settlement — which was reached in June and finalized in August 2023 — wasn’t just about the money. In the agreement, the city signaled plans to provide mandatory training to all officers regarding its de-escalation policy. Protests in the wake of the shooting also led to a change in the police department’s body camera policy: Now, a camera captures video unless an officer turns it off. In addition, Mojarrad’s mother had the opportunity to sit down with the officer who shot and killed her son.

“Being able to help this family and the community that I was born in, grew up in and am raising my own family in — to make changes for the better, increase safety and hopefully increase trust — is hugely important to me,” Edwards said. “We poured our heart and soul into this case for four years, and it was incredibly meaningful to see this case through with the family and see them get at least a semblance of the justice they deserve.”

ANTHONY FOX AND DANIEL E. PETERSON

Parker Poe Adams & Bernstein, Charlotte

municipality only needed to comply with its specific ordinances to file a lawsuit in an enforcement action. The unanimous court agreed in an October 2023 opinion.

“This Court is not bound by [Nance], but we do not read that decision to hold that a municipality’s elected governing board must always act by resolution to authorize a lawsuit,” the court wrote. In Nance, the city of Albemarle lost its case because of the requirements of its ordinances; on the contrary, nothing in Midland’s municipal ordinances required authorization, the court said.

As the town had standing, the court affirmed the decision of lower courts that the developer was on the hook to maintain the streets.

For government and municipal attorneys, the decision provided valuable clarification on the law in the state post-Nance. The North Carolina Supreme Court confirmed that no blanket rule mandating pre-authorization from an elected board is required for a municipality to bring suit exists, leaving towns and cities to look to their ordinances for guidance on whether or not a resolution is required to initiate legal action.

Does the attorney-client privilege protect a recorded conference call between a lawyer and an LLC’s individual members where one of the members later becomes averse to the others and seeks to waive the privilege?

In June 2023, the North Carolina Supreme Court ruled that the privilege was individually held and could be waived, siding with Jason A. Miller’s client, Nicholas Hurysh Jr., in a matter of first impression.

W hen the case began, corporate entity IOMAXIS LLC and individual corporate defendants were jointly represented by the same law firm in a dispute that arose after the founder of the company died. During a joint conference call with counsel, Hurysh secretly recorded the conversation. And when the individual defendants later disagreed about litigation strategy, Hurysh attempted to disclose the contents of the call, arguing that he waived the privilege.

A lthough IOMAXIS told the court that the counsel on the call was providing advice to the individual defendants solely in their roles as agents of the company — and therefore Hurysh could not waive the privilege as an individual —the North Carolina Business Court and the trial court dis-

agreed. The state’s highest court affirmed.

“ This case is a cautionary tale,” Miller said. “Attorneys need to be aware of the dangers of representing multiple parties in litigation, and they need to effectively communicate with and advise their clients at the outset of the relationship as to the risks of multiple parties.”

Miller also noted that the decision in Howard v. IOMAXIS LLC will not be the final word on the issue. The court emphasized the fact-specific nature of its holding and signaled its support for a five-factor test found in a decision from the 3rd U.S. Circuit Court of Appeals, In re Bevill, Bresler & Schulman Asset Management Corp.

“

The Bevill test is going to come into play, and the burden will be on individual officers to prove that they had an attorney-client relationship with the company’s lawyer that is separate from the company’s attorney-client relationship with that lawyer,” Miller said. “This is a significant shift in the commercial world.”

June 2023 was a busy month for Ryan Y. Park. Within days, the solicitor general of North Carolina learned the results of two cases he was involved in before the U.S. Supreme Court, Moore v. Harper and Students for Fair Admissions Inc. v. President and Fellows of Harvard College.

Moore — named for North Carolina House Speaker Tim Moore — arose when several groups

of plaintiffs challenged North Carolina’s congressional districting map as an impermissible partisan gerrymander. The North Carolina Supreme Court sided with the plaintiffs, and the state appealed to the United States Supreme Court, with Park on brief in the case.

Having taught North Carolina constitutional law at the University of North Carolina School of Law for several years, “It was particularly fitting to be involved in Moore, which was a unique U.S. Supreme Court case whose central dispute was over the authority of state courts to definitively construe their own state constitutions,” Park explained. “We were glad to secure a favorable outcome honoring the long history of state constitutionalism and independent judicial review by state courts.”

Just two days later, the court issued its opinion on race-conscious admissions in higher education, siding against Park, who argued on behalf of the University of North Carolina.

After years of litigation, the victims of Michael Early Kelly received some justice in 2023 with the help of Martin A. Ramey.

In 2019, Kelly made headlines after pleading guilty to 59 charges of sex crimes against students as a chemistry teacher first at Laney High School and then at Isaac Bear Early College High School, where he worked from 2006 until 2018, when he was arrested. Kelly will serve at least 17 years in prison for charges

including first-degree sexual exploitation and statutory sex with a minor.

Ramey represented some of the victims during Kelly’s 25 years of teaching in a pair of cases: one against the New Hanover County Board of Education, alleging that the school district failed to properly investigate Kelly despite multiple complaints by students and parents during his employment, and a second action against Kelly himself.

In June 2023, the district agreed to pay $5.75 million to settle the case, an amount limited by the district’s insurance policy coverage.

“Our clients were happy to be done with the lawsuit and be able to afford the treatment they need to deal with what happened to them but underlying that was the sense that this was not what the case was really worth,” Ramey said. “These men were harmed far worse.”

Ramey then pursued Kelly himself, which resulted in a whopping $140.14 million default judgment,

RYAN Y. PARK

North Carolina Department of Justice Raleigh

Admissions programs that factor race into the equation run afoul of the Equal Protection Clause of the 14th Amendment, Chief Justice John Roberts wrote for the court.

D espite the loss, Park finds his role as solicitor general of the state an incredible honor.

“One of the great joys of working in the [solicitor general’s] office is that we get the chance to dive into many different areas of law, and so we never stop learning and growing,” he says. “The state’s varied docket can lead you to unexpected places.”

High-stakes litigation before the nation’s highest court is nothing new to Park, who clerked for Justices David H. Souter and Ruth Bader Ginsburg and argued — and won — Allen v. Cooper in 2020. In that case, the justices unanimously agreed with Park that the Constitution generally protects states from lawsuits in federal court in a copyright battle with the company that documented the salvage of infamous pirate Blackbeard’s ship off the North Carolina coast.

MARTIN A. RAMEY

Rhine Law Firm Wilmington

with roughly $35 million in compensatory damages and more than $105 million in punitive damages. Although the judgment is largely uncollectible, it sends an important message, Ramey explained.

“The default judgment allows our clients a way to be vindicated for what their case is actually worth,” he said. “The judgment says to them: someone sees you, hears you and believes you.”

After the judgment was awarded, additional victims came forward, Ramey noted. The judgment also will follow Kelly, who could be released from prison in 2035 if he maintains good behavior.

“The best two days of my career were when I handed our clients the checks; it wasn’t the amount of the check, but it was the look on their faces, as if a big weight had been removed from their shoulders,” Ramey said. “And the second was getting the judgment against Kelly. I went to law school because I wanted to help people, and I can honestly say I did in these cases.”

It sounds like a movie scene: A carjacker races through 14 red lights and multiple stop signs, crosses the center line and drives 77 mph while being chased by police officers.

In reality, the scene occurred in downtown Durham in August 2018 and resulted in the death of Brooke Lyn Maynard, a 24-year-old off-duty Durham County detention officer and mother of a 4-year-old who was

killed when the carjacker crashed into her car at an intersection.

Despite the fact she was an innocent bystander, the wrongful death lawsuit filed by Donald R. Strickland on behalf Maynard’s estate against the city of Durham faced a significant challenge: No plaintiff in the state had previously convinced a court that an officer was grossly negligent in a police chase.

Strickland managed to overcome this obstacle and obtain a $2.25 million settlement, defeating the city’s motion for summary judgment after mandatory mediation failed. The city was not entitled to governmental immunity, he told the court, when the police recklessly disregarded the rights and safety of the public, and the “egregious facts” of the case certainly pointed in that direction.

Two trainee officers were driving the police cars during the chase, and one of them told her supervisor that she wished the carjacker would “hit a [exple-

tive] tree,” demonstrating that the officers were clearly aware of the possibility that a crash could occur under the circumstances, Strickland argued.

The parties reached the deal — which fell short of the $7.5 million originally sought by the estate — during voluntary mediation at the North Carolina Court of Appeals. The city did not admit liability.

“While it would have been nice to see if the plaintiff could have obtained an appellate decision upholding the trial court’s order denying summary judgment, the sole beneficiary of Brooke Maynard’s estate was her only child who was 4 years old at the time of Brooke’s death,” Strickland said.

“Once the case was in a position that it could be settled for an amount that could make a real difference in this child’s life, it had to be settled since there was no guarantee that the appellate courts would uphold the trial court’s order denying summary judgment, given their history in these kinds of cases.”