ADVANCE SHEETS COURT OF APPEALS

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1 224 N.C. App. No. 4 Pages ADVANCE SHEETS OF CASES ARGUED AND DETERMINED IN THE COURT OF APPEALS OF NORTH CAROLINA JULY 15, 2015 MAILING ADDRESS: The Judicial Department P. O. Box 2170, Raleigh, N. C

2 WANDA G. BRYANT ANN MARIE CALABRIA RICHARD A. ELMORE SANFORD L. STEELMAN, JR. MARTHA A. GEER LINDA STEPHENS DONNA S. STROUD THE COURT OF APPEALS OF NORTH CAROLINA Chief Judge LINDA M. McGEE Judges ROBERT N. HUNTER, JR. J. DOUGLAS MCCULLOUGH CHRIS DILLON MARK DAVIS RICHARD D. DIETZ JOHN M. TYSON 1 LUCY INMAN 2 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. JAMES H. CARSON, JR. J. PHIL CARLTON BURLEY B. MITCHELL, JR. HARRY C. MARTIN E. MAURICE BRASWELL WILLIS P. WHICHARD CHARLES L. BECTON ALLYSON K. DUNCAN SARAH PARKER ELIZABETH G. MCCRODDEN ROBERT F. ORR JACK COZORT MARK D. MARTIN JOHN B. LEWIS, JR. CLARENCE E. HORTON, JR. JOSEPH R. JOHN, SR. ROBERT H. EDMUNDS, JR. JAMES C. FULLER K. EDWARD GREENE RALPH A. WALKER HUGH B. CAMPBELL, JR. ALBERT S. THOMAS, JR. LORETTA COPELAND BIGGS ALAN Z. THORNBURG PATRICIA TIMMONS-GOODSON ROBIN E. HUDSON ERIC L. LEVINSON JOHN S. ARROWOOD JAMES A. WYNN, JR. BARBARA A. JACKSON CHERI BEASLEY CRESSIE H. THIGPEN, JR. ROBERT C. HUNTER 3 LISA C. BELL 4 SAMUEL J. ERVIN IV 5 1. Sworn in 1 January Sworn in 1 January Retired 31 December Resigned 31 December Resigned 31 December i

3 Clerk JOHN H. CONNELL Administrative Counsel DANIEL M. HORNE, JR. OFFICE OF STAFF COUNSEL Director Leslie Hollowell Davis Assistant Director Daniel M. Horne, Jr. Staff Attorneys John L. Kelly Shelley Lucas Edwards Bryan A. Meer Eugene H. Soar Matthew Wunsche Nikiann Tarantino Gray David Alan Lagos Michael W. Rogers ADMINISTRATIVE OFFICE OF THE COURTS Director John W. Smith Assistant Director David F. Hoke OFFICE OF APPELLATE DIVISION REPORTER H. James Hutcheson Kimberly Woodell Sieredzki Jennifer C. Peterson ii

4 COURT OF APPEALS CASES REPORTED FILED 31 DECEMBER 2012 France v. France Gregory v. Pearson Morehead v. Wall State v. Comeaux State v. Daniels State v. Grainger State v. Oates TD Bank, N.A. v. Crown Leasing Partners, LLC Cases Reported Without Published Opinions Evans v. Hendrick Auto. Grp In re Novartis Vaccines and Diagnostics, Inc State v. Brown State v. Garvin HEADNOTE INDEX ACCOMPLICES AND ACCESSORIES Instruction not given direct or constructive presence The trial court erred by not instructing the jury on accessory before the fact to first-degree murder in a prosecution where the evidence indicated that defendant and others planned the killing of her father, she dropped off two men near his house, waited at a K-Mart, and picked them up at a Food Lion after the killing. There was no evidence that defendant was present when the crime was committed, no evidence of the distance from her father s house to the K-Mart or Wal-Mart, and none of the evidence mentioned by the State showed that defendant remained close enough to be able to render assistance if needed. State v. Grainger, 623. Instruction not given no jury determination of uncorroborated testimony prejudicial The trial court s failure to give an instruction on accessory before the fact in a first-degree murder prosecution was prejudicial because the proper instruction to the jury would have been accompanied by a question to the jury regarding the basis of its verdict, which in turn would have determined whether defendant should have been sentenced to a class A or class B felony. N.C.G.S provides for sentencing for a Class B felony if an accessory before the fact is sentenced for a capital felony and is convicted upon the uncorroborated testimony of principals, coconspirators, or accessories. Defendant was not tried capitally, but first-degree murder is a capital crime because death is a potential punishment, and the language of the statute requires that the jury determine whether the conviction was based solely on the uncorroborated testimony of principals, coconspirators, or accessories. State v. Grainger, 623. APPEAL AND ERROR Appealability untimely appeal Rule 60 motions not a substitute Although plaintiff appealed the dismissal of her appeal from small claims court to district court for trial de novo in an action arising from an automobile accident, the appeal was dismissed because plaintiff s first notice of appeal to the Court of iii

5 APPEAL AND ERROR Continued Appeals was untimely filed. Plaintiff could not use N.C.G.S. 1A-1, Rule 60 motions as a substitute for appeal. Morehead v. Wall, 588. Interlocutory order and appeal substantial right change of venue Although defendants appeal from the denial of their motion for change of venue was from an interlocutory order, it affected a substantial right and was immediately appealable. TD Bank, N.A. v. Crown Leasing Partners, LLC, 649. Interlocutory order and appeal substantial right unsealing of documents Plaintiff s appeal from an interlocutory order in a divorce case was properly before the Court of Appeals because a substantial right was affected by the trial court s order unsealing documents. France v. France, 570. CONSTITUTIONAL LAW Public trial closure of trial during victim s testimony findings sufficient The trial court did not err by closing the courtroom during the testimony of the victim where the court s findings showed that the State advanced an overriding interest that was likely to be prejudiced; that the closure of the courtroom was no broader than necessary to protect the overriding interest; that the trial court considered reasonable alternatives to closing the courtroom; and that the trial court made findings adequate to support the closure. Even in the absence of the findings challenged by defendant, the remaining, detailed findings were sufficient to uphold the trial court s order. State v. Comeaux, 595. Statute unconstitutionally void as applied The trial court did not err by entering an order declaring N.C.G.S (a)(3) unconstitutional as the statute is unconstitutionally vague as applied to defendant upon the facts surrounding incidents involving defendant on 6 and 7 May State v. Daniels, 608. Unanimous verdict multiple charges instructions and verdict sheets Defendant s contention that he was deprived of his right to a unanimous jury verdict in a prosecution for five indecent liberties charges was overruled where the trial court s instructions explicitly distinguished among the five charges, directed the jurors to find defendant guilty on each count only if they determined that defendant had committed the requisite acts within the designated time period, each verdict sheet was paired with a particular indictment, and it was evident that the jury was able to distinguish among the indictments and verdict sheets, as it convicted defendant on only four of the five counts. State v. Comeaux, 595. DIVORCE Unsealing documents change in circumstance open courtroom proceedings The trial court did not abuse its discretion in a divorce case by entering the 12 October 2011 order unsealing the documents in this action and overruling Judge Owens 18 December 2008 order. The fourth finding of change in circumstance, ordering that the case proceed in an open courtroom, was sufficient alone to warrant a reconsideration of whether Judge Owens order sealing documents in the actions was still proper. France v. France, 570. INDICTMENT AND INFORMATION Multiple charges defendant sufficiently informed Indictments for indecent liberties sufficiently informed defendant of the conduct for which he was charged where each of the indictments was couched in the language of the statute, and iv

6 INDICTMENT AND INFORMATION Continued each indictment alleged that defendant committed the offense within a specific, non-overlapping six-month period between July 2005 and December State v. Comeaux, 595. JURISDICTION Jurisdiction subject matter constitutional challenge statute divisible and separable defendant not indicted under statute The trial court lacked subject matter jurisdiction to rule that N.C.G.S (a)(2) was unconstitutional. N.C.G.S (a)(2) and (a)(3) are divisible, separable, and constitute separate crimes and defendant was only indicted on charges of violating N.C.G.S (a)(3). State v. Daniels, 608. SEARCH AND SEIZURE Search and seizure search warrant probable cause anonymous tip nexus warrant affidavit The trial court erred in a possession of a firearm by a convicted felon case by granting defendant s motion to suppress evidence seized as a result of a search of defendant s residence. Under the totality of the circumstances, a second anonymous tip had sufficient indicia of reliability, there was a sufficient nexus between the contraband and defendant s residence, and the warrant affidavit provided sufficient probable cause to permit the search of defendant s residence. State v. Oates, 634. STANDING VENUE Constitutional challenge facial challenge as-applied challenge The trial court did not err by declaring N.C.G.S (a)(3) unconstitutional based on defendant s lack of standing. Although defendant lacked standing to raise a facial challenge to the statute, defendant had standing to bring an as-applied challenge. State v. Daniels, 608. Plaintiff nonresident and defendant resident proper county defendant resides at commencement of action The trial court erred by denying defendants motion for change of venue from Buncombe County to Catawba County. In a civil action in this state where venue is not specifically designated by N.C.G.S through 1-81, where the plaintiff is a nonresident and the defendants are residents, the proper venue for the action pursuant to N.C.G.S is any county in which defendants reside at the commencement of the action. Defendants were residents of Catawba County at the commencement of this action. TD Bank, N.A. v. Crown Leasing Partners, LLC, 649. WORKERS COMPENSATION Exclusivity temporary staffing expressly not an employee no implied contract Plaintiff s negligence claims were not barred by the exclusivity provisions of the Workers Compensation Act where plaintiff s decedent, who worked for a temporary employment agency, was not a County employee under the express language of the agreement between the agency and the County. Because the County chose not to establish an employment relationship with decedent, it eschewed both the liabilities and protections of the Workers Compensation Act. Gregory v. Pearson, 580. v

7 570 IN THE COURT OF APPEALS FRANCE v. FRANCE [224 N.C. App. 570 (2012)] BRIAN Z. FRANCE, V. MEGAN P. FRANCE No. COA Filed 31 December Appeal and Error interlocutory order and appeal substantial right unsealing of documents Plaintiff s appeal from an interlocutory order in a divorce case was properly before the Court of Appeals because a substantial right was affected by the trial court s order unsealing documents. 12. Divorce unsealing documents change in circumstance open courtroom proceedings The trial court did not abuse its discretion in a divorce case by entering the 12 October 2011 order unsealing the documents in this action and overruling Judge Owens 18 December 2008 order. The fourth finding of change in circumstance, ordering that the case proceed in an open courtroom, was sufficient alone to warrant a reconsideration of whether Judge Owens order sealing documents in the actions was still proper. Appeal by Plaintiff from order entered 18 December 2009 by Judge Jena P. Culler in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 September Horack Talley Pharr & Lowndes, P.A., by Kary C. Watson and Gena Graham Morris, and Alston & Bird, LLP, by John E. Stephenson, Jr. Davis Harwell & Biggs, P.A., by Loretta C. Biggs and Joslin Davis, and Robinson, Bradshaw & Hinson, P.A., by Martin L. Brackett, Jr. Higgins & Owens, PLLC, by Raymond E. Owens, Jr., for the Charlotte Observer and WCNC, amicus curiae. THIGPEN, Judge. Brian France ( Plaintiff ) appeals from an order unsealing documents associated with the actions in this case. We find no abuse of discretion in the order of the trial court, which finds and concludes

8 IN THE COURT OF APPEALS 571 FRANCE v. FRANCE [224 N.C. App. 570 (2012)] there has been a substantial change in circumstances. Therefore, we affirm the order of the trial court. I. Facts The evidence of record tends to show the following: Plaintiff and Megan France ( Defendant ) have been married to each other twice. Each marriage lasted approximately two years. Prior to their second marriage, on 27 December 2007, Plaintiff and Defendant entered into a prenuptial agreement ( the Agreement ), replacing an earlier prenuptial agreement, which provided financial benefits to Defendant in consideration for which Defendant agreed to abide by the terms of the Agreement. The Agreement contained the following confidentiality provision: Plaintiff and Defendant agreed that neither party [would] disclose any financial information relating to the other party or any provision of th[e] Agreement to anyone except certain professionals, such as their attorneys and financial advisors, unless compelled by law. Plaintiff and Defendant further agreed to keep private certain personal information regarding each other unless either party is legally compelled to disclose any such information[.] The Agreement stated that breach of the confidentiality provision would constitute a material breach. In the final paragraph of the confidentiality clause, Plaintiff and Defendant agreed that if either of them institutes or responds to litigation that relates to and requires disclosure of any of the terms of th[e] Agreement, [Plaintiff and Defendant] agree to use their best efforts so that any reference to the terms of th[e] Agreement and the Agreement itself will be filed under seal, with prior notice to the other party. France v. France, 209 N.C. App. 406, , 705 S.E.2d 399, 402 (2011) (alterations in original). On 11 September 2008, Plaintiff filed a complaint (File No. 08 CVD 20661), alleging Defendant had breached the Agreement and seeking an order directing the clerk of court to seal Plaintiff s amended complaint, which Plaintiff had not yet filed, and any future documents filed in the action. The trial court, Judge N. Todd Owens ( Judge Owens ) presiding, granted Plaintiff s motion to seal the doc-

9 572 IN THE COURT OF APPEALS FRANCE v. FRANCE [224 N.C. App. 570 (2012)] uments associated with the case in File No. 08 CVD and issued an order on 18 December 2008, which provided the following rationale for the trial court s ruling: 2. There is a compelling countervailing public interest in protecting the privacy of the parties as relates to the provisions of the Agreement concerning their young children and their financial affairs, and in avoiding damage or harm to the parties, their business interests, and their children which could result from public access to such provisions of the Agreement. 3. There is a compelling countervailing public interest in protecting the sanctity of contracts such as the Agreement, where people bargain for and agree upon a mechanism to resolve future disputes in a confidential manner and other contract terms which are not contrary to law, and where each party relies on the other party to perform his or her obligations under the contract. 4. The aforesaid countervailing public interests in paragraphs 2 and 3 above outweigh the public s interest in access to the documents filed in this court proceeding and in future proceedings between the parties concerning the Agreement. 5. The Court has considered whether there are alternatives to sealing the court files in order to protect the public interests referred to in paragraphs 2 and 3 above, and finds there are no such alternatives. Based on the foregoing, the trial court concluded: The Clerk of Superior Court shall seal the pleadings and other documents [and] [t]he Clerk... is directed to file under seal any pleadings and documents filed in any subsequent actions between the parties related to the Agreement [and all such pleadings, documents, and orders] may be unsealed only by further order of the [c]ourt, after reasonable notice to the parties. In the order, Judge Owens also provided the following specifications: Once sealed, such pleadings and documents shall be accessible only to the District Court, any appellate court, the parties, attorneys for the parties and parale-

10 IN THE COURT OF APPEALS 573 FRANCE v. FRANCE [224 N.C. App. 570 (2012)] gals and other staff members of such attorney, and may be unsealed only by further order of the Court, after reasonable notice to the parties. 1 On 31 December 2008, Plaintiff filed, under seal, the amended complaint with a different file number, File No. 08 CVS The amended complaint set forth the terms of the Agreement and specified how Defendant breached those terms. Therefore, the amended complaint necessarily disclosed the terms of the Agreement and hypothetically may have constituted a breach of the confidentiality provision in the Agreement, but for the fact that the amended complaint was filed under seal. The parties filed a series of discovery and substantive motions in the action under File No. 08 CVS On 29 September 2009, in anticipation of hearings on the foregoing motions, Plaintiff filed a motion requesting that the trial court close proceedings to the public. Defendant joined Plaintiff in the motion to close proceedings. The trial court, Judge Jena P. Culler ( Judge Culler ) presiding, heard the foregoing motion to close proceedings, along with several other motions, on 15 October 2009, after which Judge Culler denied the motion to close proceedings. Judge Culler entered a written order on 13 November 2009 concluding that [p]roceedings in this case shall be conducted in open court and providing the following rationale for the decision: Although both parties affirmatively sought the relief of closing the court proceedings in this litigation, there are no compelling countervailing public interests as related to these parties which outweigh the public s right and access to open court proceedings. Plaintiff appealed Judge Culler s 13 November 2009 order. Plaintiff also moved in open court for a stay, which was denied. Plaintiff filed notice of appeal from this order. On 17 November 2009, The Charlotte Observer Publishing Company and WCNC-TV, Inc. ( Media Movants ) filed a motion requesting that Judge Culler (1) [o]rder [that] the courtroom remain open to the public and press in both 08 CVD and 08 CVD and (2) order that the records and court files in both [actions] be 1. Judge Owens 18 December 2008 order was not included in the record on appeal; however, we have extracted the above excerpts from Judge Owens order as they were recited in Judge Culler s subsequent orders.

11 574 IN THE COURT OF APPEALS FRANCE v. FRANCE [224 N.C. App. 570 (2012)] unsealed[.] Judge Culler heard Media Movant s motion on 11 December In an order filed 18 December 2009, Judge Culler acknowledged both Judge Owens order which ordered that the pleadings and documents associated with the action in File No. 08 CVD shall be sealed and her own order that the proceedings of the action in File No. 08 CVD shall remain open to the public. Judge Culler then ordered that all proceedings in connection with 08 CVD shall be open to the public [and that] the court has already ordered that all courtroom proceedings in connection with 08 CVD shall be open, and that order has been appealed [and that all court files relating to both 08 CVD and 08 CVD 28389] shall be unsealed. Judge Culler reasoned that there were no compelling countervailing public or governmental interest[s] sufficient to keep the court filings under seal, or to conduct the proceedings in a closed courtroom. Judge Culler further reasoned: There [are] no compelling countervailing public or governmental interest[s] to be protected as it relates to the parties that outweighs the public s longstanding presumptive right to open courts as espoused in the North Carolina Constitution, North Carolina statutory law,... and the related case law[.] On 21 December 2009, Plaintiff filed a notice of appeal from Judge Culler s 18 December 2009 order. Plaintiff also filed a motion to stay this order, which was denied. On 22 December 2009, Plaintiff filed a motion in this Court to stay Judge Culler s 13 November 2009 and 18 December 2009 orders. Our Court granted Plaintiff s motion to stay pending determination of [Plaintiff s] petition for writ of supersedeas by order entered 23 December On 4 January 2010, our Court granted Plaintiff s petition for writ of supersedeas, and stayed implementation of Judge Culler s first and second orders pending further orders of this Court. On 1 February 2011, this Court issued an opinion, France, 209 N.C. App. 406, 705 S.E.2d 399, resolving the first appeal. This Court concluded that Plaintiff s appeal of Judge Culler s first order on 13 November 2009 divested the trial court of jurisdiction in the matter and jurisdiction transferred to this Court. Thus, Judge Culler s second order is a nullity because the trial court was without jurisdiction to hear the matter on 11 December Id. at 411, 705 S.E.2d at 404. This Court vacated the 18 December 2009 order.

12 IN THE COURT OF APPEALS 575 FRANCE v. FRANCE [224 N.C. App. 570 (2012)] This Court further held that [b]ecause Judge Culler s first order did not rule that the pleadings and documents in these actions should be unsealed, Judge Culler s first order does not impermissibly overrule Judge Owens order. Id. at 412, 705 S.E.2d at 405. This Court affirmed Judge Culler s 13 November 2009 order, holding that the trial court did not err by refusing to close the proceedings. Id. at , 705 S.E.2d at However, we noted that Judge Owens order remains in effect, and the trial court must conduct the proceedings in a manner which will not run counter to Judge Owens order. Id. at 418, 705 S.E.2d at 408. Upon remand, we stated, the trial court must determine how best to reconcile Judge Owens order [sealing the documents pertaining to the action] with Judge Culler s first order [ruling that the proceedings in the action shall remain open to the public]. Id. at 418, 705 S.E.2d at On 2 June 2011, the first hearing in this case following remand, Judge Culler instructed the parties that although arguments and testimony would generally take place in open court, the documents associated with the action would remain under seal as long as the Owens Order was in effect. Judge Culler advised the parties that while there would be occasions when testimony or argument would make reference to documents in the court files, there should be no excessive reading aloud from any document that is under seal or any unnecessary reference to details in the [Agreement]. On 10 June 2011, Media Movants filed a second access motion, urging the trial court to overrule Judge Owen s order and unseal the documents associated with 08 CVD and 08 CVD While this motion was pending, Judge Culler entered an order consolidating 08 CVD and 08 CVD into one case, 08 CVD (hereinafter, the action ). On 12 October 2011, Judge Culler entered an order granting Media Movants motion to unseal the documents associated with the action, 2 reasoning that Judge Owen s order was void for two reasons: (1) the trial court lacked subject matter jurisdiction to enter the order, 3 and (2) the order violated the North Carolina Declaratory Judgment Act. 4 Alternatively, Judge Culler 2. The trial court reserved the right, however, to seal future documents. 3. Judge Culler stated that trial court s do not have subject matter jurisdiction to enter orders governing separate actions ; however, Judge Owens order purported to seal the court files in all future, and therefore not yet asserted actions. 4. Judge Culler reasoned that a declaratory judgment may only decide the respective rights and obligations of adversary parties[,] and [n]o declaration may prejudice the rights of persons not parties to the proceedings ; however, Judge Culler

13 576 IN THE COURT OF APPEALS FRANCE v. FRANCE [224 N.C. App. 570 (2012)] based her decision to unseal the documents on four material changes in circumstance. 5 On 13 October 2011, Plaintiff filed a notice of appeal of Judge Culler s 12 October 2011 order overruling Judge Owens 18 December 2008 order and unsealing the documents associated with this action. Plaintiff also filed a motion for temporary stay and a petition for writ of supersedeas in this Court. On 24 October 2011, we granted Plaintiff s motion for a stay, pending our ruling on the petition for writ of supersedeas. On 2 November 2011, we allowed Plaintiff s petition for writ of supersedeas. On appeal, Plaintiff argues the trial court erred by entering the 12 October 2011 order unsealing the documents in this action and overruling Judge Owens 18 December 2008 order for the following reasons: (1) the trial court failed to carry out the mandate of this Court s opinion in France, 209 N.C. App. 406, 705 S.E.2d 399; (2) the trial court lacked authority to overrule Judge Owens 18 December 2008 order as one trial judge cannot overrule another; (3) Judge Owens 18 December 2008 order was not void, as the trial court had subject matter jurisdiction to enter the order; (4) the order did not violate the North Carolina Declaratory Judgment Act because the public is not a necessary party; (5) and there was no material change of circumstances. Plaintiff also argues on appeal that the trial court s findings of fact in the 12 October 2011 are not based on competent evidence. We affirm the order of the trial court. II. Interlocutory Appeal [1] We must first address the question of whether this appeal from an interlocutory order is properly before the Court. We conclude it is. stated that the order entered by Judge Owens purports to prejudice the public s right to access court files pursuant to the United States and North Carolina Constitutions and is outside the scope of the Declaratory Judgment Act. 5. Judge Culler stated that four substantial changes in circumstance have occurred in this case: (1) a substantial change occurred when Plaintiff filed the amended complaint, alleging an alternative claim for the rescission of the Agreement because Plaintiff relied on the confidentiality provision of the Agreement as the basis for his motion to seal the documents associated with the action, and Judge Owen relied on the confidentiality provision in the Agreement as the basis for ordering that the documents be entered under seal; (2) a substantial change occurred based on the mere fact that Media Movants filed their Access Motions ; (3) a substantial change occurred when certain details concerning the Agreement were discovered and published by various media outlets; (4) and a substantial change occurred when this Court, according to Judge Culler, direct[ed] this case to proceed in an open courtroom.

14 IN THE COURT OF APPEALS 577 FRANCE v. FRANCE [224 N.C. App. 570 (2012)] An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy. Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, rehearing denied, 232 N.C. 744, 59 S.E.2d 429 (1950). Generally, there is no right of immediate appeal from interlocutory orders and judgments. Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, immediate appeal is available from an interlocutory order or judgment which affects a substantial right. Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (citation and quotation marks omitted). This Court has held in cases such as this that [a]bsent immediate review, documents that have been ordered sealed will be unsealed, and proceedings will be held open to the public[;] [b]ecause the only manner in which [a party] may prevent this from happening is through immediate appellate review, we hold that a substantial right... is affected[.] France, 209 N.C. App. at 411, 705 S.E.2d at 405 (citing Evans v. United Servs. Auto. Ass n, 142 N.C. App. 18, 23-24, 541 S.E.2d 782, 786, cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001)). We believe that here, as in the first appeal, a substantial right is affected by the trial court s order unsealing documents. We conclude, therefore, that although Plaintiff appeals from an interlocutory order, the appeal is properly before the Court. III. Standard of Review It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). The judicial officer s decision to seal... is subject to review under an abuse of discretion standard. In re Investigation into Death of Cooper, 200 N.C. App. 180, 186, 683 S.E.2d 418, 423 (2009), disc. review denied, 363 N.C. 855, 694 S.E.2d 201 (2010) (citation omitted). Abuse of discretion results where the court s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision. State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). IV. Substantial Change in Circumstances [2] We first address Plaintiff s argument that the trial court erred in finding and concluding that there was a material change in the circumstances of the parties, and as such, the trial court erred in entering an

15 578 IN THE COURT OF APPEALS FRANCE v. FRANCE [224 N.C. App. 570 (2012)] order unsealing the documents associated with the consolidated actions in this case and overruling Judge Owens 18 December 2008 order. We conclude the trial court did not err. It is well established that one trial court judge may not overrule another trial court judge s conclusions of law when the same issue is involved[;] [n]o appeal lies from one Superior Court judge to another;... one Superior Court judge may not correct another s errors of law; and... ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action. France, 109 N.C. App. at , 705 S.E.2d 399, 405 (2011) (quoting State v. Woolridge, 357 N.C. 544, 549, 592 S.E.2d 191, 194 (2003)). The rationale for this rule is to discourage parties from judge shopping. Woolridge, 357 N.C. at 550, 592 S.E.2d 194. This rule does not apply to interlocutory orders given in the progress of the cause[,]... [and] a judge does have the power to modify an interlocutory order when there is a showing of changed conditions which warrant such action. Carr v. Great Lakes Carbon Corp., 49 N.C. App. 631, 633, 272 S.E.2d 374, 376 (1980), disc. review denied, 302 N.C. 217, 276 S.E.2d 914 (1981) (citations omitted). However, when the judge rules as a matter of law, not acting in his discretion, the ruling finally determines the rights of the parties unless reversed upon appellate review. Id. One superior court judge may only modify, overrule, or change the order of another superior court judge where the original order was (1) interlocutory, (2) discretionary, and (3) there has been a substantial change of circumstances since the entry of the prior order. Crook v. KRC Mgmt. Corp., 206 N.C. App. 179, 189, 697 S.E.2d 449, 456, cert. denied, and disc. review denied, 364 N.C. 607, 703 S.E.2d 442 (2010) (citations and quotation marks omitted). In this case, Judge Owens 18 December 2008 order stated that [o]nce sealed, such pleadings and documents shall be accessible only to the District Court, any appellate court, the parties, attorneys for the parties and paralegals and other staff members of such attorney, and may be unsealed only by further order of the Court, after reasonable notice to the parties. (emphasis added). Judge Owens order, itself, made an allowance for the future unsealing of documents. Moreover, this Court in France, 209 N.C. App. 406, 705 S.E.2d 399, did not mandate that Judge Owens order remain undisturbed. Rather, this Court held that Judge Owens order must remain in effect until and unless it is properly overturned[.] Id. at 417, 705 S.E.2d at 408 (emphasis added). The phrase, [p]roperly overturned[,]

16 IN THE COURT OF APPEALS 579 FRANCE v. FRANCE [224 N.C. App. 570 (2012)] required that Judge Culler only had authority to overrule Judge Owens order upon a finding of changed circumstances. Id. at 412, n.3, 705 S.E.2d at 405, n.3; see also Morris v. Gray, 181 N.C. App. 552, , 640 S.E.2d 737, 738 (2007) (stating that [u]nless a material change of circumstances in the situations of the parties so warrants, one trial judge cannot modify, overrule, or change the judgment of another, equivalent trial judge ). A substantial change in circumstances exists if since the entry of the prior order, there has been an intervention of new facts which bear upon the propriety of the previous order. The burden of showing the change in circumstances is on the party seeking a modification or reversal of an order previously entered by another judge. Crook, 206 N.C. App. at 189, 697 S.E.2d at 456 (citations and quotation marks omitted). The trial court found several changes in circumstances in its order in this case, including the following: (1) Plaintiff now seeks rescission of the Separation Agreement, which is the document from which the order to seal the files is derived; (2) the Media Movants are an intervening party and a member of the public seeking access to the documents; (3) some details regarding the actions have already been disclosed to the public during the course of the litigation; and (4) the Court of Appeals ordered that the case proceed in an open courtroom. We believe the fourth finding of change in circumstance that this Court ordered that the case proceed in an open courtroom is sufficient, alone, to warrant a reconsideration of whether Judge Owens order sealing documents in the actions was still proper. We find no indication of abuse of discretion in the trial court s findings of fact. The findings of fact are supported by the evidence and each reasonably supports the conclusion of law that a change in circumstances has occurred. Therefore, we affirm the trial court s order unsealing the documents associated with the actions in this case. As we affirm on this ground, it is not necessary for us to address Plaintiff s remaining arguments on appeal Plaintiff also argues on appeal that the trial court erred in disregarding the public s compelling interest in preserving the constitutionally protected rights of freedom to contract, remedy for an injury incurred, and privacy. Specifically, Plaintiff claims that his rights to contract, right to a remedy in the trial court for an injury he incurred, and his right to privacy have been violated by the trial court s order overruling Judge Owens Order. These arguments were each addressed by France, 209 N.C. App. 406, 705 S.E.2d 399, and are res judicata. Williams v. Peabody, N.C. App.,, 719 S.E.2d 88, 92 (2011) (stating that res judicata prevents the relitigation of all matters that were or should have been adjudicated in the prior action ). With respect to Plaintiff s breach of contract claim, this Court stated in France that Plaintiff s right

17 580 IN THE COURT OF APPEALS GREGORY v. PEARSON [224 N.C. App. 580 (2012)] AFFIRMED. Judges McGEE and BEASLEY concur. Judge Beasley concurred in this opinion prior to 18 December SHEILA GREGORY, ADMINISTRATRIX OF THE ESTATE OF TRAVIS BRYAN KIDD V. BARRY BLAINE PEARSON, IN HIS INDIVIDUAL CAPACITY SHEILA GREGORY, ADMINISTRATRIX OF THE ESTATE OF TRAVIS BRYAN KIDD V. CLEVELAND COUNTY, SELF-MCNEILLY SOLID WASTE MANAGEMENT FACILITY No. COA No. COA Filed 31 December 2012 Workers Compensation exclusivity temporary staffing expressly not an employee no implied contract Plaintiff s negligence claims were not barred by the exclusivity provisions of the Workers Compensation Act where plaintiff s decedent, who worked for a temporary employment agency, was not a County employee under the express language of the agreeto contract is in no way violated; we merely hold that Plaintiff cannot, by contract, circumvent established public policy.... Plaintiff must show some independent countervailing public policy concern sufficient to outweigh the qualified right of access to civil court proceedings.... We hold that, in the present case, the trial court was correct to determine whether proceedings should be closed based upon the nature of the evidence to be admitted and the facts of this specific case. Evidence otherwise appropriate for open court may not be sealed merely because an agreement is involved that purports to render the contents of that agreement confidential. Certain kinds of evidence may be such that the public policy factors in favor of confidentiality outweigh the public policy factors supporting free access of the public to public records and proceedings. France, 209 N.C. App. at , 705 S.E.2d at 407. With respect to Plaintiff s argument pertaining to access to a remedy for an injury he incurred, this Court stated in France that Plaintiff fails to show that the decision to deny Plaintiff s request for closed proceedings will deny Plaintiff redress in the court for an injury done to him[;] Plaintiff has in no manner been prevented from proceeding with his action[,] [and] [a]gain, if Plaintiff succeeds in his primary action for rescission of the Agreement, the confidentiality clause contained in the Agreement will no longer have any effect. Id. at 417, 705 S.E.2d at 408. With respect to Plaintiff s right to privacy claim, this Court stated in France that Plaintiff s claim that his constitutional right of privacy, particularly with respect to matters surrounding the parenting of minor children, will be violated is without merit, and Plaintiff fails to show that any such right to privacy outweighs the qualified right of the public to open proceedings. Id.

18 IN THE COURT OF APPEALS 581 GREGORY v. PEARSON [224 N.C. App. 580 (2012)] ment between the agency and the County. Because the County chose not to establish an employment relationship with decedent, it eschewed both the liabilities and protections of the Workers Compensation Act. Appeals by Sheila Gregory from order entered on 23 March 2012 by Judge Richard Doughton in Cleveland County Superior Court. Heard in the Court of Appeals 29 November James M. Roane III for plaintiff-appellant. Teague Campbell Dennis & Gorham, L.L.P., by William A. Bulfer and Rebecca Rausch, and Womble Carlyle Sandridge and Rice, by Sean F. Perrin and Jackson Price, for defendantappellees. HUNTER, JR., Robert N., Judge. Sheila Gregory, in her capacity as administratrix of the estate of Travis Bryan Kidd, appeals from a 23 March 2012 order dismissing her cases against Barry Blaine Pearson and Cleveland County (collectively, Defendants ). Her appeals have been consolidated for review by this Court. Upon review, we reverse the trial court s order. I. Facts & Procedural History Travis Bryan Kidd ( Kidd ) was twenty-four years old and lived with his mother, Sheila Gregory ( Plaintiff ). Kidd was employed by WorkForce Staffing, Inc. ( WorkForce ), a temporary employment agency. WorkForce contracted with Cleveland County (the County ) to send temporary workers to the County s Self-McNeilly Solid Waste Management Facility (the Landfill ). WorkForce and the County entered into a Staffing Vendor Agreement (the Staffing Vendor Agreement or the Agreement ). Under the terms of the Agreement, the County regularly paid WorkForce, and WorkForce in turn paid its temporary workers. The Agreement stated WorkForce was responsible for workers compensation insurance. According to the Agreement, the County could terminate the workers from the Landfill at any time. The Agreement expressly stated the temporary employees were not employees of the County. WorkForce subsequently assigned Kidd to work at the Landfill as a spotter, helping dump trucks and other vehicles navigate the terrain. The Landfill provided Kidd with protective equipment, including

19 582 IN THE COURT OF APPEALS GREGORY v. PEARSON [224 N.C. App. 580 (2012)] gloves and a reflective orange vest. While Kidd worked at the Landfill, he did not take any other assignments from WorkForce. On or about 22 February 2010, Kidd was working as a spotter at the Landfill. Barry Blaine Pearson ( Pearson ), a full-time County employee, was driving a mobile trash compactor near Kidd, despite Landfill policies requiring a 20-foot buffer between trash compactors and spotters. Also, the trash compactor s backup camera did not provide adequate visibility. This defect had resulted in previous collisions with other equipment. On that day, Pearson accidentally ran over Kidd with the trash compactor, driving him into a pile of trash. A few minutes later, another truck driver noticed Kidd lying in the trash pile. That driver approached, saw Kidd was severely injured but still alive, and called EMS. Although EMS extracted Kidd and took him to a hospital, he died that same day as a result of the injuries he received. After Kidd s death, Plaintiff filed a workers compensation claim with the North Carolina Industrial Commission against WorkForce. She collected from WorkForce all her entitled benefits under the North Carolina Workers Compensation Act (the Workers Compensation Act ). On 19 August 2011, Plaintiff filed a Complaint against Pearson in Cleveland County Superior Court alleging (i) negligence; and (ii) wrongful death. On 21 February 2012, Plaintiff also filed a companion complaint against Cleveland County for (i) negligence; (ii) negligence per se (due to alleged statutory health and safety violations at the Landfill); and (iii) wrongful death. On 6 March 2012, the County filed a motion to dismiss under North Carolina Rule of Civil Procedure 12(b)(1). After a hearing, the trial court dismissed both Plaintiff s complaints on 23 March 2012 because Plaintiff s allegations were exclusively covered by the Workers Compensation Act. Plaintiff filed timely notice of appeal on 10 April II. Jurisdiction and Standard of Review This Court has jurisdiction to hear the instant appeal pursuant to N.C. Gen. Stat. 7A-27(b) (2011). We review Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction de novo and may consider matters outside the pleadings. Harris v. Matthews, 361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007). Under a de novo review, the court considers the matter anew and freely substitutes its own

20 IN THE COURT OF APPEALS 583 GREGORY v. PEARSON [224 N.C. App. 580 (2012)] judgment for that of the lower tribunal. State v. Williams, 362 N.C. 628, , 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). III. Analysis Plaintiff contends her claims are not barred by the exclusive remedy of the Workers Compensation Act because Kidd was not a County employee. Specifically, she argues: (i) the express contract between WorkForce and the County stated Kidd was not a County employee; (ii) the County did not exercise control over Kidd s work; and (iii) the special employment doctrine has a decreased burden of proof. Upon review, we reverse the trial court s order. Under the Workers Compensation Act, employers generally must pay... compensation [to employees] for personal injury or death by accident arising out of and in the course of [employees ] employment. N.C. Gen. Stat (2011). No contract or agreement, written or implied, no rule, regulation, or other device shall in any manner operate to relieve an employer in whole or in part, of any obligation created by this Article, except as herein otherwise expressly provided. N.C. Gen. Stat (2011). The Workers Compensation Act provides an exclusive remedy for unintentional work-related injuries. See N.C. Gen. Stat (2011) ( If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee... exclude all other rights and remedies of the employee... as against the employer at common law or otherwise on account of such injury or death. ). Thus, the remedial provisions of the Workers Compensation Act bar other claims against an employer, such as negligence. See, e.g., Reece v. Forga, 138 N.C. App. 703, 706, 531 S.E.2d 881, 883 (2000) (barring a negligence claim against an employer when the employee already recovered under the Workers Compensation Act). Similarly, an employee who recovers under the Workers Compensation Act cannot raise a negligence claim against a coemployee acting in the scope of employment. See Pleasant v. Johnson, 312 N.C. 710, 713, 325 S.E.2d 244, 247 (1985) ( We also have interpreted the Act as foreclosing a worker who is injured in the course of his employment from suing a co-employee whose negligence caused the injury. ); Strickland v. King, 293 N.C. 731, 733, 239 S.E.2d 243, 244 (1977) ( [A]n employee subject to the Act whose injuries arise out of and in the course of his employment may not

21 584 IN THE COURT OF APPEALS GREGORY v. PEARSON [224 N.C. App. 580 (2012)] maintain a common law action against a negligent co-employee. ); Altman v. Sanders, 267 N.C. 158, 161, 148 S.E.2d 21, 24 (1966). According to the Workers Compensation Act, [t]he term employee means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written. N.C. Gen. Stat. 97-2(2) (2011). Furthermore, under the special employment doctrine: a general employee of one [employer] can also be the special employee of another while doing the latter s work and under his control [citation omitted] [a]nd it goes without saying that if a loaned servant is the borrower s servant also when doing the borrower s work and under his control, a servant especially hired for that very purpose is likewise. Brown v. Friday Services, Inc., 119 N.C. App. 753, 759, 460 S.E.2d 356, 360 (1995) (quoting Henderson v. Manpower of Guilford Cnty., Inc., 70 N.C. App. 408, 413, 319 S.E.2d 690, 693 (1984)) (second and third alterations in original). Thus, if N.C. Gen. Stat bars an employee s suit against a general employer, it also bars suit against a special employer. In Collins v. James Paul Edwards, Inc., this Court established a three-part test to determine when the special employment doctrine applies: When a general employer lends an employee to a special employer, the special employer becomes liable for workmen s compensation only if (a) the employee has made a contract of hire, express or implied, with the special employer; (b) the work being done is essentially that of the special employer; and (c) the special employer has the right to control the details of the work. When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen s compensation. 21 N.C. App. 455, 459, 204 S.E.2d 873, 876 (1974) (quotation marks and citation omitted); see also Anderson v. Demolition Dynamics,

22 IN THE COURT OF APPEALS 585 GREGORY v. PEARSON [224 N.C. App. 580 (2012)] Inc., 136 N.C. App. 603, 607, 525 S.E.2d 471, 473 (2000) (applying the Collins test). As Defendants describe, this Court has previously applied the Collins test to determine employees of temporary employment agencies may also become special employees of the businesses where they are assigned, barring non-workers compensation claims against their special employers. For instance, in Brown, a temporary worker fell through a skylight and died while working for a roofing contractor. Brown, 119 N.C. App. at , 460 S.E.2d at 358. The worker s estate brought a wrongful death claim against the roofing contractor. Id. at 755, 460 S.E.2d at 358. There, this Court affirmed dismissal of the case because the circumstances satisfied all three parts of the Collins test. Id. at 759, 460 S.E.2d at 360. In Poe v. Atlas-Soundelier/American Trading and Production Corp., 132 N.C. App. 472, 512 S.E.2d 760 (1999), a temporary worker s hand was crushed by a machine while working for Atlas. Id. at 473, 512 S.E.2d at 761. The plaintiff recovered workers compensation from his temporary employment agency, but also brought a negligence claim against Atlas. Id. at 476, 512 S.E.2d at 763. In that case, this Court again applied the special employment doctrine to determine the exclusivity provisions of the Workers Compensation Act barred Poe s negligence claim. Id. at 478, 512 S.E.2d at 764. In Henderson, 70 N.C. App. 408, 319 S.E.2d 690, a temporary worker was injured by a falling tree while working for a construction company. Id. at 409, 319 S.E.2d at 691. There, we held both the temporary employment agency and the construction company were liable for workers compensation because they were both Henderson s employers under the special employment doctrine. Id. at 410, 319 S.E.2d at 691. In the present case, Plaintiff contends the exclusivity provisions of the Workers Compensation Act do not bar her cases because Kidd was not a County employee. Plaintiff argues the circumstances do not satisfy the first prong of the Collins test because the Agreement stated Kidd was not a County employee. We agree. Under the first portion of the Collins test, we consider whether the employee has made a contract of hire, express or implied, with the special employer. Collins, 21 N.C. App. at 459, 204 S.E.2d at 876. In this analysis, we may examine the contract between a temporary employment agency and the business hiring temporary workers. See