STATE OF NORTH CAROLINA
WAKE COUNTY
IN THE GENERAL COURT OF JUSTICESUPERIOR COURT DIVISION
09 CVS 21955
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LUNSFORD LONG, Individually, and as a )Principal of LONG & LONG, )
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THE NORTH CAROLINA STATE BAR, )Defendants. )
)
ELIZABETH "BETSY" 1. WOLFENDEN,Individually, and as Principal ofLAW OFFICES OF BETSY J.WOLFENDEN,
Plaintiff,vs.
DONNA AMBLER DAVIS,Individually, and as a Principal ofDONNA AMBLER DAVIS, P.c.,a North Carolina Professional Corporation,
LEIGH A. PEEK, Individually, and as aPrincipal of COLEMAN, GLEDHILL,HARGRAVE & PEEK, P.C., a NorthCarolina Professional Corporation,
JOSEPH M. BUCKNER, Individually andin his official capacity as Chief DistrictCourt Judge of North Carolina JudicialDistrict 15-B, and the STATE OFNORTH CAROLINA,
BEVERL Y SCARLETT, Individually andin her official capacity as District CourtJudge of North Carolina of North CarolinaJudicial District 15-B, and the STATE OFNORTH CAROLINA,
CARMEN BANNON, Individually and inher official capacity as anagent for theNorth Carolina State Bar.
AMENDED COMPLAINT
JURy TRIAL DEMANDED
JURISDICTIONAL ALLEGATIONS
1. Plaintiff Elizabeth "Betsy" J. Wolfenden ("plaintiff') is a citizen and resident of
Chatham County, North Carolina. Plaintiff was an attorney licensed to practice law by the State
of North Carolina since 2000 until she was disbarred on 8 July 2010. Plaintiff was owner of the
Law Offices of Betsy J. Wolfenden in Chapel Hill, North Carolina. Plaintiff practiced family
law in Orange, Chatham, Durham, Alamance and Wake Counties. Plaintiff was also assigned
counsel for the Office of the Appellate Defender, representing indigent criminal defendants and
indigent parents.
2. Defendant Long & Long is a law firm doing business in Chapel Hill, North
Carolina as a partnership, with Lunsford Long as a Principal.
3. Defendant Lunsford Long ("Long") is a citizen and resident of Orange County,
North Carolina. Long is currently a district court judge in Judicial District 15-B, having been
appointed by Governor Beverly Perdue on or about August 25,2009 to the judicial seat of the
Honorable Alonzo B. Coleman, Jr. Before being appointed to Judge Coleman's seat, Long was
an attorney licensed to practice law in the State of North Carolina. Long is a partner of Long &
Long with his wife, Florence Long. At all times relevant to this action, Long was an attorney
employed by Long & Long.
4. Defendant Donna Ambler Davis, P.C. ("Davis P.C.") is a professional corporation
licensed to do business in the State of North Carolina. Donna Ambler Davis, P.C. is a law firm
doing business in Chapel Hill, North Carolina.
5. Defendant Donna Ambler Davis, Individually ("Davis"), is a citizen and resident
of Orange County, North Carolina. Davis is an attorney licensed to practice law in the State of
North Carolina. At all times relevant to this action, Davis was employed by Davis' firm.
6. Coleman, Gledhill, Hargrave & Peek P.C. ("CGHP"), is a professional
corporation licensed to do business in the State of North Carolina. CGHP is a law firm doing
business in Hillsborough, North Carolina.
7. Defendant Leigh A. Peek, Individually ("Peek"), is a citizen and resident of
Orange County, North Carolina. Peek is an equity partner ofCGHP.
8. Joseph M. Buckner, Individually ("Buckner"), is a citizen and resident of Orange
County. Buckner is employed by the State of North Carolina. Buckner is the Chief District
Court Judge in Judicial District 15-B.
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9. Beverly Scarlett, Individually ("Scarlett"), is a citizen and resident of Orange
County. Scarlett is employed by the State of North Carolina. Scarlett is a District Court Judge
in Judicial District IS-B.
10. Upon information and belief, Carmen Bannon, ("Bannon"), is a citizen and
resident of Wake County. Bannon is employed by the North Carolina State Bar.
11. The North Carolina State Bar ("The State Bar") is the state agency responsible for
regulating the practice of law in North Carolina. The State Bar is located in Raleigh, North
Carolina in Wake County.
FACTUAL ALLEGATIONS
Paragraphs 1-11 are incorporated herein by reference as though fully set forth herein.
12. In January of 2006, former 15-B Superior Court Judge Wade Barber retired from
his seat on the bench.
13. Lunsford Long sought appointment by the former Governor Michael Easley to
Judge Barber's seat on the bench. On or about February 15,2006, former Governor Michael
Easley appointed Allen Baddour to Judge Barber's seat. After Baddour was appointed to Judge
Barber's seat, Long spoke bitterly to plaintiff and others regarding Baddour's appointment,
stating that Baddour was ''just a kid" and that he had been appointed solely due to his father's
political influence as Director of Athletics for the University of North Carolina at Chapel Hill.
Long told plaintiff and others that House Majority Leader State Representative Joe Hackney had
promised him that Governor Easley would appoint Long to Judge Barber's seat.
14. On or about 22 February 2006, Judge Baddour filed to run to keep his seat on the
bench.
15. Long did not seek election to Judge Baddour's s seat as Long did not want to run
for a judicial seat, but wanted to be appointed. Long told plaintiff on more than one occasion
had to become judge in order to get medical benefits for him and his wife, Florence.
16. On or about November 4, 2006, Baddour was re-elected to his seat.
17. After Baddour won the election, Long began looking for another judicial seat to
which he could be appointed.
18. In 2008, 15-B District Court Judge Alonzo B. Coleman, Jr. ("Coleman") was up
for re-election. During a campaign speech on 5 May 2008 before the Orange County Family
Bar at Bailey's Pub and Grill in Chapel Hill, Coleman told plaintiff and the other attorneys
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present that he originally decided not to run since he could only serve six months of the term due
to the mandatory retirement at age 72; however, he was approached by a group of attorneys in
Judicial District 15-B who encouraged him to run.
19. Long encouraged Coleman to run so that he could be appointed to Coleman's seat
after he retired and get medical benefits for him and his wife, Florence.
20. In October of2007, Plaintiff was retained by Emily McManaway, a mother of
two young children, who alleged that Davis and Peek and their law firms had conspired with two
Mormon couples and a Mormon adoption agency to kidnap Ms. McManaway's son from Nevada
to facilitate an illegal adoption in North Carolina without her knowledge or consent. Ms.
McManaway also alleged that Davis and Peek had violated numerous Rules of Professional
Conduct and she sought compensatory and punitive damages.
21. Ms. McManaway further alleged that Buckner had engaged in judicial misconduct
by signing a permanent custody order without holding a custody hearing or taking evidence,
giving custody of her son to a Mormon couple when they had already given her son away to
another Mormon couple so they could adopt Ms. McManaway's son. The custody order was
prepared by Peek and it gave the appearance that Buckner held a custody hearing on 15 March
2007 when he had not. Buckner allowed his assistant, Mindy Harris, to sign the custody order,
knowing that he had not held a hearing or taken any evidence.
22. On 28 February 2008, plaintiff filed to run for Judge Alonzo B. Coleman's
judicial seat because the McManaway case is just one example ofthe many cases in 15-B
District Court in which the laws of this state are disregarded and the public is harmed.
23. After she filed to run for judge, Long, Davis, Peek, Scarlett and Buckner entered
into a conspiracy to get her disbarred.
24. On 13 March 2008, plaintiff requested calendaring assistance from the Judge
Ralph Walker, Executive Director of the Administrative Office of the Courts in a case, Klein v.
Klein, involving Buckner and Long. Plaintiff told Judge Walker that for three years Long had
refused to consent to court hearings, and that Buckner had failed for three years to calendar her
client's motions.
25. After plaintiff requested calendaring assistance from Judge Walker, Buckner
retaliated against plaintiff by filing an anonymous grievance with the State Bar. Buckner
backdated his letter to 12 March 2008 so it would not look like he was retaliating against plaintiff
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for contacting Judge Walker with her concerns. Buckner brought his grievance against plaintiff
anonymously because he did not want plaintiff to take legal action against him for filing the
grievance with malice.
26. On 7 April 2008, plaintiff wrote Davis informing her that Ms. McManaway
intended on suing Davis and Peek for unethical conduct and for depriving her of custody of her
son.
27. After Davis received plaintiff's letter, she consulted with Long because Long had
developed professional relationships with employees at the State Bar when he served as 15-B
Bar Councilor from 1998 to 2007. Davis knew that Long would be willing to use his influence
at the State Bar to help Davis avoid being disciplined by the State Bar if Davis would help Long
subvert the judicial election so he could be appointed to Judge Coleman's seat. In order for
Davis and Long to both get what they wanted, they needed to get plaintiff disbarred.
28. To further the conspiracy to get plaintiff disbarred, Long initiated an anonymous
grievance against plaintiff by writing a letter to Katherine Jean, Counsel for the North Carolina
State Bar, on 30 April 2008, stating that "[t]he State Bar should take my grievance, and any other
grievances against Ms. Wolfenden, currently in its hands or on the way, as very serious ones.
Ms. Wolfenden is running for judge, and has no business being a lawyer, much less being on the
bench; the State Bar needs to deal with her harshly and swiftly, and impose severe public
discipline." Long filed his grievance with the State Bar anonymously to impede plaintiff from
bringing a legal action against him for defaming her with malice.
29. In addition to filing an anonymous grievance against plaintiff on 30 April 2008,
Long communicated with the State Bar on 11 November 2008; 26 November 2008 (two days
after plaintiff represented Ms. McManaway in Orange County District Court); 17 March 2009
(one day after plaintiff represented Ms. McManaway in Orange County Superior Court); 16
April 2009; May 14,2009; 10 June 2009; and 26 June 2009. The State Bar refused to provide
plaintiff with Long's statements to the State Bar in discovery. When plaintiff questioned Long
under oath on 22 April 2010 at her disciplinary hearing regarding the substance of his statements
with the State Bar on those dates, he said he could not remember his statements. Long's self-
serving memory lapse is not credible and the State Bar should provide the plaintiff with
discovery in this action.
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30. In April of2008, Wolfenden ran a campaign ad in The Independent Weekly. The
ad consisted of a photo of Wolfenden, a link to her campaign website at betsyforjudge.com, and
the slogan, "It Takes a Strong Woman to Stand up to a Good 01' Boys Network." Judge Beverly
Scarlett ("Scarlett"), who was appointed to the bench in 2007 by Governor Michael Easley,
found Wolfenden's ad "personally offensive."
31. On 5 June 2008, Judge Scarlett complained anonymously to the North Carolina
State Bar that in her personal opinion Wolfenden could not have used the phrase "good 01' boy
network" without having the intent of provoking civil unrest in Scarlett's community. Scarlett
filed her grievance anonymously because she did not want plaintiff to have a basis for recusing
Scarlett from her cases and she wanted to impede plaintiff from taking legal action against her.
If Scarlett hid her bias against plaintiff, Scarlett could obstruct justice in plaintiff's cases with
impunity. Even in plaintiff's cases in which other judges had previously been assigned, Buckner
re-assigned those cases to Scarlett so she could obstruct justice in those cases as well. When
plaintiff wrote Judge Scarlett a letter on 8 April 2009, asking her to recuse herself so that her
clients would receive fair hearings, Judge Scarlett threatened to "immediately commence a
Judicial Disciplinary Action" against plaintiff. Plaintiff was unable to protect her clients from
Scarlett's malice and, therefore, was effectively blackballed by Scarlett from practicing law in
15-B District Court.
32. To ensure that plaintiff was disbarred, Long, Davis, Peek, Scarlett and Buckner
maliciously initiated multiple anonymous grievances against plaintiff with the State Bar.
Another part of their common scheme was to destroy plaintiff's business and contractual
relations with her clients and prospective clients. To further the conspiracy, Buckner (1) ignored
Black letter law and denied plaintiff's clients all relief, (2) delayed plaintiff's court hearings, (3)
calendared plaintiff's cases without providing her with notice, (4) refused to enter court orders so
plaintiff's clients could not seek appellate relief, (5) refused to continue plaintiff's cases even
when good cause was shown; (6) refused to assist plaintiff with calendaring issues, (7)
repeatedly engaged in ex parte communications with Long and Davis; (8) held ex parte hearings
with Peek; and (9) re-assigned Scarlett to plaintiff's cases because Buckner knew she was willing
to interfere with plaintiff's contract and business relations and to obstruct justice.
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33. Even though Buckner was a co-conspirator in the scheme to get plaintiff
disbarred, like Scarlett, he refused to recuse himself from plaintiff's cases. Buckner and Scarlett
conspired to make sure plaintiff was blackballed from practicing law in 15-B District Court.
34. In June 2008, plaintiff filed grievances against Long and Davis with the State Bar
for abusing the State Bar's disciplinary process by filing anonymous grievances for their own
personal gain.
35. On 28 August 2008, James Fox, Chair of the North Carolina State Bar Grievance
Committee, dismissed plaintiff s grievances against Long and Davis, claiming the "available
information" did not show that Long and Davis had violated any Rules of Professional Conduct.
36. On 9 October 2008, Peek filed an anonymous grievance against plaintiff in the
McManaway case, alleging that plaintiff violated "§48-10-102." Peek filed her grievance
anonymously because she knew it was without merit and was being filed with malice. Peek also
knew that her clients had unlawfully paid Peek's law firm $16,896.25 in exchange for Ms.
McManaway's son. See 24 January 2008 Disclosure of Fees & Expenses attached hereto as
Exhibit A and incorporated herein by reference.
37. Plaintiff lost the election to Judge Coleman on November 4,2008 after spending
most of the campaign responding to the individual defendants' anonymous grievances.
38. On 13 November 2008, the State Bar issued three reprimands and a censure to
plaintiff.
39. On 18 November 2008, plaintiff rejected the State Bar's disciplinary notices and
requested a full hearing.
40. On 24 November 2008 plaintiff filed a lawsuit on behalf of Ms. McManaway in
Orange County Superior Court against Peek and Davis, their clients, and the Mormon adoption
agency after discovering that a court order that Davis and Peek had referred to in numerous
pleadings as "valid" was invalid because Peek failed to initiate a proper legal action.
41. After plaintiff filed Ms. McManway's lawsuit against Davis and Peek, the State
Bar, through its agent, Bannon, conspired with Davis and Long to "fix" the outcome of Ms.
McManaway's lawsuit because the State Bar did not want a judicial determination that Davis or
Peek had violated the Rules of Professional Conduct when the State Bar had already decided that
Davis had not engaged in unethical conduct.
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42. To further the conspiracy to fix the outcome of the McManaway case, Davis
retained Long to influence the judge. Long's role was to show up at the 16 March 2009 hearing
in Orange County Superior Court on Davis' motion to dismiss to influence the judge if it
appeared the judge was not going to dismiss Ms. McManaway's lawsuit. Bannon knew Davis
had retained Long in order to influence the judge. Bannon, Davis, and Long did not want
plaintiff to know that Davis had retained Long to influence the judge, so Long failed to file a
notice of appearance with the court.
43. After the 16 March 2009 court hearing in Orange County Superior Court, Ms.
McManaway brought a complaint against Long and Davis for abuse of process and obstruction
of justice. Plaintiff did not know until she received discovery from the State Bar in January 2010
that Bannon was involved in the conspiracy. After Ms. McManaway sued Long and Davis,
Bannon amended the State Bar's complaint against plaintiff to add a claim that plaintiff had
brought a frivolous lawsuit against Long and Davis. Bannon's conduct was in bad faith and
amounted to prosecutorial misconduct.
44. On 9 April 2009, the State Bar held a probable cause hearing to determine if
plaintiff should be put on disability status for mental illness. Prior to the hearing, Long urged
Susan Lewis to contact the State Bar because Lewis had told Long earlier that she had an excerpt
from a court transcript in which plaintiff purportedly told the judge she enjoyed torturing
lawyers. Lewis knew this information was false because she was at the court hearing in question.
Long also disseminated Ms. Lewis' false information to the State Bar because he wanted to get
plaintiff disbarred so he could be appointed to Judge Coleman's seat. Ms. Lewis faxed the
transcript excerpt to Bannon in which plaintiff purportedly told Judge Brown,
"because you all are -- you know, and I haven't been able to review the pleadings, too, and for
whatever reason I seemed to have taken an interest in this proceeding from a legal point of view,
which is always fun, because that means I can torture the lawyers better -" The problem with
that quote is that it's Judge Brown's, not plaintiff's. In addition, Ms. Lewis was present at the
court hearing when Judge Craig made his funny comment about torturing lawyers and she
laughed along with everyone else. See Susan Lewis' letter with transcript excerpt to plaintiff and
Bannon dated 12 April 2010 attached hereto as Exhibit B.
45. Upon information and belief, when Ms. Lewis falsely told the State Bar on 9
April 2009 that the plaintiff had told Judge Brown she wanted to torture lawyers, Ms. Lewis
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failed to inform the State Bar that plaintiff had resigned from Ms. Lewis' firm in 2002 after she
discovered that Ms. Lewis had lied to the court in another case about her personal relationship
with a court-appointed expert. The Honorable Judge Ann McKown subsequently discharged the
expert due to Ms. Lewis' malfeasance. See the 19 July 2001 Order in Madan v. Madan attached
hereto as Exhibit C.
46. On 23 April 2009, the State Bar filed a complaint against plaintiff containing the
statements in the anonymous grievances filed by Long, Davis, Peek, Scarlett and Buckner but
also included a claim that plaintiff was mentally ill. Plaintiff received notice and an opportunity
to heard on all ofthe claims in the complaint except for the claim that plaintiff was mentally ill.
The State Bar intentionally and maliciously failed to give plaintiff prior notice that it was
bringing a claim against plaintiff for mentally illness because the State Bar wanted to retaliate
against plaintiff for exercising her due process rights by requesting a DHC hearing.
47. Between 9 April 2009 and 23 April 2009, plaintiff was represented at all times by
counsel. When the State Bar has such strict rules of confidentiality for its FRIENDS and PALS
Programs, it is unfathomable that the State Bar would fail to give plaintiff notice before bringing
a claim that would destroy her business and personal reputations for the rest of her life.
48. On 27 April 2009, an article was published in a local newspaper re-publishing the
State Bar's complaint that she was mentally ill.
49. Plaintiff's 17-year old daughter saw the article online and called plaintiff at the
Orange County Courthouse to tell her about the article. Plaintiff was shocked, traumatized and
humiliated when her daughter read the article to her over the phone. From the moment the State
bar published the false claim that plaintiff is mentally ill, plaintiff's law practice and business
reputation was destroyed as was her ability to earn a living.
50. On 11 June 2009, plaintiff filed her answer with the North Carolina State Bar
denying all claims of misconduct as well as the claim that she is mentally ill. The State Bar
waited until 15 October 2009 to post plaintiff's answer on its website containing her denial of
mental illness. During that time, the public had no idea plaintiff denied the State Bra's claim.
51. On 21 July 2009, plaintiff underwent a complete psychological evaluation and
was found not mentally ill.
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52. After it was determined that plaintiff was not mentally ill, Long, Davis, Peek,
Scarlett and Buckner conspired to file more anonymous grievances in hopes that the additional
grievances would get plaintiff disbarred at the DHC hearing.
53. On or about 25 August 2009 Governor Beverly Perdue appointed Long to Judge
Coleman's seat.
54. On 23 September 2009, plaintiff was informed by Lawyers Mutual that the
company would not be reissuing her malpractice insurance policy. When plaintiff asked
Lawyers Mutual why it was not reissuing her malpractice insurance policy, she was told it was
because of the State Bar complaint containing the allegation that she was mentally ill.
55. On 22 October 2009, plaintiff filed the complaint in the instant action. After
plaintiff filed the complaint, the State Bar and its agent, Bannon, conspired with the other
defendants to maliciously prosecute plaintiff for the purpose of getting her disbarred at the DHC
hearing The State Bar wanted plaintiff disbarred in order to make it more diificult for her to
prevail against the State Bar in this action.
56. On 8 January 2010, plaintiff moved the federal district court for leave to amend
her complaint in this action to add agents of the North Carolina State Bar, James P. Fox, Carmen
Bannon and Melissa Donahue, as defendants in their official and individual capacity.
57. Bannon continued to prosecute plaintiff at the DHC hearing while conspiring
with the other defendants to get plaintiff disbarred.
58. At the DHC hearing, Bannon failed to inform the DHC panel that she was
conspiring with the other individual defendants to get plaintiff disbarred because she stood to
personally gain from plaintiff's disbarment. Bannon also failed to inform the DHC panel that
prior to plaintiff rejecting the State Bar's disciplinary notices in November of 2008, she had
received three reprimands and a censure which did not even call for suspension of her law
license, let alone her disbarment.
FIRST CLAIM FOR RELIEFCIVIL CONSPIRACY
Paragraphs 1-58 are incorporated herein by reference as though fully set forth herein.
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59. Long, Davis, Peek, Scarlett and Buckner entered into a common scheme after
plaintiff filed to run for Judge Coleman's seat to get her disbarred by filing numerous false
grievances against plaintiff with the State Bar.
60. Long wanted plaintiff disbarred so she could not serve as judge and Long could
be appointed to Judge Coleman's seat. Davis, Peek and Buckner wanted plaintiff disbarred
because they did not want plaintiff to expose their misconduct in the McManaway custody case,
and they wanted to prevent plaintiff from continuing to represent Ms. McManaway. Scarlett
wanted plaintiff disbarred because she believed plaintiff s campaign ad impugned her reputation
and made her unsafe in her community.
61. When the first series of false grievances filed by Long, Davis, Peek, Scarlett and
Buckner did not result in getting plaintiff disbarred, they conspired to falsely allege to the State
Bar that plaintiff was mentally ill.
62. The conspiratorial conduct engaged in by Long, Davis, Peek, Scarlett and
Buckner made it impossible for plaintiff to maintain business relations with her clients in Judicial
District 15-B, destroyed her business reputation, and caused her to lose her malpractice
msurance.
63. Plaintiff spent hundreds of hours during the judicial election responding to the
anonymous grievances filed by Long, Davis, Peek, Scarlett and Buckner, was unable to run an
effective judicial campaign, and subsequently lost to Judge Coleman.
64. The anonymous complaints filed by Long, Davis, Peek, Scarlett and Buckner
during plaintiffs judicial campaign were libelous and interfered with the electoral process.
65. After plaintiff brought Ms. McManaway's lawsuit against Davis and Peek in
Orange County Superior Court for abuse of process and obstruction of justice, Bannon and Long
and Davis conspired to "fix" the outcome of that lawsuit by using Long to influence the judge.
66. When Ms. McManaway discovered the conspiracy and sued Long and Davis,
Bannon retaliated by bringing additional claims against plaintiff.
67. After plaintiff initiated this action, Bannon conspired with the other individual
defendants to get disbarred at the DHC hearing. In order to do that, Bannon encouraged the
defendants to bring more anonymous grievances against the plaintiff, no matter how groundless.
Because the defendants in this action were willing to lie under oath, and did lie under oath, it did
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not matter how groundless their grievances were because they outnumbered plaintiff at the DHC
hearing.
SECOND CLAIM FOR RELIEFOBSTRUCTION OF JUSTICE
Paragraphs 1-67 are incorporated herein by reference as though fully set forth herein.
68. As early as 24 November 2008 when plaintiff filed Ms. McManaway's lawsuit
against Davis and Peek in Orange County Superior Court, Bannon began conspiring with Long
and Davis to get the lawsuit dismissed. Bannon encouraged Long to influence a superior court
judge in order to fix the outcome of the McManaway lawsuit.
69. Buckner and Scarlett intentionally and willfully obstructed justice by repeatedly
refusing to recuse themselves from plaintiffs cases though they were personally biased against
her.
70. Bannon obstructed justice at plaintiff's disciplinary hearing by allowing Long,
Davis, Peek, Scarlett and Buckner to testify when she knew or should have known they would
testify falsely. Bannon's conduct amounted to prosecutorial misconduct.
THIRD CLAIM FOR RELIEFTORTIOUS INTERFERENCE WITH BUSINESS RELATIONS
Paragraphs 1-70 are incorporated herein by reference as though fully set forth herein.
71. The purpose ofthe conspiracy concocted by Long, Davis, Peek, Scarlett and
Buckner was to interfere with plaintiff s business relations by getting her disbarred or put on
disability status so she could no longer represent clients in Judicial District 15-B, including but
not limited to Ms. McManaway.
72. Buckner and Scarlett made it impossible for plaintiff to represent clients in 15-B
District Court by obstructing justice in plaintiffs cases.
73. By recklessly and maliciously making a false claim against plaintiff that she was
mentally ill and then by publishing that claim in a document of public record which was posted
on its website, the State Bar interfered with plaintiff's business relations, present and
prospective.
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74. By maliciously conspiring to get plaintiff disbarred at the DHC hearing to gain an
advantage in this lawsuit, defendants interfered with plaintiff's prospective business relations.
FOURTH CLAIM FOR RELIEFTORTIOUS INTERFERENCE WITH CONTRACTS
Paragraphs 1-74 are incorporated herein by reference as though fully set forth herein
75. On 16 October 2009, plaintiff's client, Kathryn H. Klein, terminated plaintiffs
services after Buckner repeatedly refused to hear Ms. Klein's motions or claims and repeatedly
refused to order Ms. Klein's husband to produce any discovery. Long was opposing counsel in
the Klein case until 2008. After he withdrew, Peek represented Mr. Klein.
76. In 2005, the marital estate in Klein was valued at 1.5 million. Apart from a
$6,000 cash advance Ms. Klein took on a marital credit card on the date of separation, the entire
marital estate is in Mr. Klein's possession. Because Judge Buckner refused to order Mr. Klein to
provide Ms. Klein with an interim distribution of assets, plaintiff provided Ms. Klein with over
$70,000 in legal services from 2005 to 2009 without getting paid.
77. To retaliate for plaintiff seeking Judge Ralph Walker's calendaring assistance in
March of2008, Buckner refused to hear Ms. Klein's equitable distribution claim.
78. Ms. Klein terminated plaintiffs services because she lost faith in plaintiff's
ability to resolve her equitable distribution claim after Buckner retaliated against plaintiff and
Ms. Klein for seeking calendaring assistance from Judge Ralph Walker at the Aoe on 13 March
2008.
FIFTH CLAIM FOR RELIEFDEFAMATION
Paragraphs 1-78 are incorporated herein by reference as though fully set forth herein.
79. Defendants Long, Davis, Peek, Scarlett and Buckner, acted in bad faith and with
malice by making a false claim regarding plaintiff's mental health to the State Bar, which caused
an article to be published in the local press and on the Internet that humiliated and disgraced
plaintiff and impeached her in her profession.
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80. Defendants' false claim that plaintiff was mentally ill was made after defendants
Long, Davis, Peek and Scarlett and Buckner discovered their first set of anonymous complaints
filed with the State Bar were insufficient to get plaintiff disbarred.
81. Defendants Long, Davis, Peek, Scarlett and Buckner defamed plaintiff
maliciously and for their own personal and pecuniary gain. Bannon published the false claim
regarding plaintiff's mental illness to retaliate against plaintiff for rejecting the State Bar's
disciplinary notices.
82. The State Bar acted with malice as it knew or should have known that the
statement that plaintiff is mentally ill was false as plaintiff informed the State Bar on numerous
occasions that Long, Davis, Peek and Buckner were conspiring to get plaintiff disbarred for their
own personal, political and pecuniary gain.
83. The State Bar had a duty to investigate the claims being made by the defendants
that plaintiff was mentally ill prior to publishing the statement in a document of public record as
the State Bar knew or should have known that the claim was false and would unnecessarily
traumatize, humiliate and disgrace plaintiff and impeach her in her profession and in her personal
life and that the stigma associated with mental illness would prevent her from finding
employment.
84. Although the State Bar dismissed its claim against plaintiff for mental illness on
20 August 2009, the State Bar took no steps to mitigate the damage done to plaintiff's
professional or personal reputation. Because of the stigma associated with mental illness,
plaintiff doubts that she will ever be employed again at a salary commensurate with her abilities.
SIXTH CLAIM FOR RELIEFINTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Paragraphs 1-84 are incorporated herein by reference as though fully set forth herein.
85. Defendants Long, Davis, Peek and Buckner intentionally and unreasonably
subjected the plaintiff to severe emotional distress for their own personal, political and pecuniary
gain.
86. The State Bar knew or should have known that the false statement that plaintiff
was mentally ill would bring her severe public humiliation and emotional distress. The State Bar
showed a callous disregard for plaintiff's wellbeing and acted intentionally, maliciously,
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wantonly and recklessly by publishing in a document of public record a statement it knew or
should have known was false and that would destroy plaintiff s law practice and impeach her
business reputation. The State Bar has a record for engaging in outrageously and extreme
malicious and vindictive conduct when attorneys attempt to exercise their constitutional right to
due process. See, e.g., Willie Gilbert's federal lawsuit against the State Bar attached to
plaintiff s motion for leave to amend.
87. As a result of defendants' behavior, the plaintiff has suffered severe emotional
and psychological distress.
88. A reasonable person would have had an emotional, psychological or physical
breakdown as a result of defendants' conduct. But for plaintiffs faith in God, plaintiff would
have had an emotional, psychological or physical breakdown from defendants' conduct as
defendants' actions have irreparably harmed plaintiff's law practice, reputation in the
community, and her relations with her clients and colleagues.
89. Defendants' conduct was intentional, outrageous, willful and wanton and was
committed with the intent to inflict harm upon plaintiff with reckless disregard of the harm that
would be inflicted by such conduct upon the plaintiff.
90. As a result of defendants' conduct, plaintiffwas damaged and should recover
compensatory and punitive damages from defendants in excess of TEN THOUSAND
DOLLARS ($10,000.00).
SEVENTH CLAIM FOR RELIEFCIVIL CONSPIRACY TO VIOLATE THE DUE PROCESS AND PRIVILEGES
CLAUSE OF THE 14TH AMENDMENT TO THE UNITES STATES CONSTITUTION
Paragraphs 1-90 are incorporated herein by reference as though fully set forth herein.
91. A license to practice law is a property right which cannot be taken away or
otherwise abridged without due process of law.
92. In addition, the Privileges and Immunities Clause of the 14th Amendment to the
United States Constitution protects plaintiff's right to enjoy the same rights and privileges that
are enjoyed by other citizens of the United States.
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93. By conspiring with the other defendants throughout the plaintiffs disciplinary
proceedings to fix the outcome of a million dollar lawsuit by getting plaintiff disbarred, and by
signing the 23 April 2009 complaint containing the false allegation that plaintiff was mentally ill
pursuant to an unlawful agreement or conspiracy, Bannon violated plaintiff's clearly established
rights under the Privileges and Immunities Clause of the United States Constitution, and
deprived plaintiff of her clearly established right not to be deprived of license to practice law
without due process of law.
94. As a direct and proximate result of Bannon's conduct, plaintiff has sustained
actual damages in excess of $10,000.00 and is entitled to a judgment for compensatory damages
against Bannon, in her individual capacity, in an amount to be proven at trial.
95. Furthermore, since Bannon engaged in the conduct herein complained for no
legitimate reason, and with a malicious and corrupt intention, plaintiff is entitled to a judgment
for punitive damages against Bannon, and Bannon is not entitled to escape liability in this action
on grounds of qualified or prosecutorial immunity.
SIXTH CLAIM FOR RELIEFMALICIOUS PROSECUTION
Paragraphs 1-95 are incorporated herein by reference as though fully set forth herein.
96. Plaintiff has a constitutionally protected property interest in her law license, her
law practice and her business reputation.
97. Instead of prosecuting plaintiff in good faith, Bannon began conspiring with Long
and Davis as early as 24 November 2008 to "fix" the outcome of Ms. McManaway's million
dollar lawsuit so Davis and Peek would not be held liable to Ms. McManaway for their
malfeasance.
98. Bannon prosecuted plaintiff in bad faith throughout plainitff's disciplinary
proceedings.
99. Defendants Long, Davis, Peek, Scarlett and Buckner maliciously instigated an
anonymous claim of mental illness against plaintiff for the purpose of having her disbarred or put
on disability status.
100. The State Bar through its agent, Bannon, maliciously prosecuted the claim that
plaintiff was mentally ill, knowing the claim was false and knowing that publishing the claim in
16
a document of public record, which it then posted on its website, would adversely affect
plaintiffs business and personal reputation for the rest of her life and would prevent her from
obtaining employment.
101. The State Bar did not have probable cause on 27 April 2009 to bring a claim
against plaintiff for mental illness but brought the claim without providing plaintiff or her
attorneys with notice to punish plaintiff for exercising her right to due process.
102. The State Bar deprived plaintiff of procedural due process before irreparably
harming her law practice and business reputation by filing a complaint containing a claim that
plaintiff is mentally ill, which the State Bar knew or should have known was false.
103. The day after the State Bar filed its complaint and posted it on its website, a local
newspaper, The Herald Sun, published an article containing details of The State Bar complaint
including the claim that plaintiff is mentally ill.
104. The Herald Sun article was also published online and was subsequently posted
online at other websites, including a website for mental health practitioners.
105. The State Bar could easily have determined the falsity of the statement regarding
plaintiffs mental illness before it published the statement in a document of public record if the
State Bar had provided plaintiff with procedural due process, such as notice and opportunity to
be heard.
106. The State Bar's act of publishing in a document of public record a false statement
that irreparably harmed plaintiff's law practice and business reputation without providing
plaintiff with procedural due process was malicious, willful, wanton and reckless and violated
plaintiff s constitutional rights.
107. There are no post deprivation remedies available to plaintiff.
108. Additionally, the State Bar failed to mitigate the damage done to plaintiff's law
practice and business reputation when it filed a complaint containing a false statement regarding
plaintiffs mental health. Although the State Bar entered an order on August 20,2009 dismissing
its claim against plaintiff that she was mentally ill, the State Bar failed to post its order on its
website.
109. The State Bar knew or should have known that the anonymous grievance brought
against plaintiff that she was mentally ill was false and made in bad faith as the plaintiff had
previously informed the State Bar that the anonymous grievances being filed against her by
17
Long, Davis, Peek, Scarlett and Buckner were brought for their own personal, political and
pecuniary gain. Furthermore, The State Bar could have contacted plaintiff's supervisors and
colleagues at the Office of the Appellate Defender to make inquiries regarding plaintiff's mental
health, but chose not to. As the State Bar failed in its duty to properly investigate the false
statements pertaining to plaintiff's mental health, including the false statements made by Susan
Lewis, the State Bar should have given plaintiff the opportunity to refute the false statements
before the State Bar destroyed plaintiff's business reputation and personal reputation by
publishing the false statements in a document of public record.
110. The State Bar showed malice and a reckless indifference to plaintiff's
constitutional right to procedural due process by publishing in a document of public record a
statement that The State Bar knew or should have known was false and that the State Bar knew
or should have known would destroy plaintiff's law practice and business reputation.
111. The State Bar prosecuted a claim it knew would destroy plaintiff's law practice
without providing plaintiff with procedural due process in order to punish plaintiff for requesting
a hearing on the State Bar's claims.
112. Section .0105 of Subchapter B of the North Carolina Administrative Code gives
the chairperson of the Grievance Committee the power and duty "to issue letters of notice in such
cases and under such circumstances as the chairperson deems appropriate."
113. Section .0105 of Subchapter B of the North Carolina Administrative Code gives
the chairperson the discretion to issue a letter of notice to a member of the Bar so the member
has the opportunity to respond to grievances before a complaint is filed and becomes a document
of public record.
114. Upon information and belief, the chairpersons of the Bar Grievance Committees
exercise their discretion in an arbitrary and capricious manner so that some member attorneys of
the State Bar receive notice and a chance to be heard prior to a complaint being filed while others
do not.
115. The State Bar gave plaintiff no notice and therefore no opportunity to disprove the
false statement that she mentally ill until after the Bar filed its complaint. When the State Bar
filed its complaint in which it published the false statement regarding plaintiff's alleged mental
illness, plaintiff's law practice and business reputation were destroyed, even though the
statement was later proven false.
18
SEVENTH CLAIM FOR RELIEFPUNITIVE DAMAGES
Paragraphs 1-115 are incorporated herein by reference as though fully set forth herein.
116. Defendants' conduct was malicious, outrageous, reckless, willful and wanton, and
plaintiff is entitled to recover punitive as well as compensatory damages from defendants.
117. Defendants' acts were particularly outrageous and malicious as they were made
for their own personal, political, and pecuniary gain.
118. Because Davis and Peek were afraid that a jury would award Ms. McManaway
compensatory and punitive damages for their tortious conduct, they decided to get plaintiff
disbarred or put on disability status so she could not pursue legal relief on behalf of Ms.
McManaway.
119. Because Buckner and Scarlett did not want their misconduct exposed by plaintiff,
they wanted plaintiff disbarred or put on disability status so she could no longer practice law in
15-B District Court.
120. Because Long wanted to be appointed to be Judge Coleman's seat, he wanted
plaintiff disbarred or put on disability status so she could not win the election and serve as judge.
121. Bannon engaged in prosecutorial misconduct throughout plaintiff's disciplinary
proceeding.
122. The State Bar could have given plaintiff an opportunity to prove the falsity of the
statement that she was mentally ill, prior to publishing its complaint on its website, but chose not
to because the State Bar wished to punish plaintiff for exercising her right to due process.
123. Plaintiff should be awarded punitive damages pursuant to N.C. Gen. Stat. § 1D-
15. Awarding plaintiff punitive damages will deter defendants and others from engaging in
similar misconduct.
124. This is not the first time Buckner has been accused of willful and wanton
misconduct. In 1998, Buckner's assistant brought a complaint against him in Orange County
Superior Court for sexual harassment, alleging that Buckner engaged in conduct that was
19
offensive, insulting, inappropriate, and demeaning toward female staff members, clerks and
members of the Bar, and that he created a "hostile work environment and atmosphere saturated
with sexual suggestion, innuendo and proposition."
125. This is not the first time the State Bar and its agents have been accused of willful
and wanton misconduct. See Willie Gilbert's federal lawsuit against the State Bar attached to
her motion for leave to amend.
MOTION FOR INJUNCTIVE RELIEF
Paragraphs 1-125 are incorporated herein by reference as though fully set forth herein.
125. The disciplinary order disbarring plaintiff is currently on appeal. If the order is
reversed or vacated, the State Bar and its Disciplinary Hearing Commission should be
permanently enjoined from prosecuting plaintiff.
126. Plaintiff moves the Court for an order permanently enjoining the North Carolina
State Bar and its Disciplinary Hearing Commission from prosecuting plaintiff and requests that if
she is afforded a new hearing on appeal, she be heard in a court of law before a jury of her peers.
127. In the alternative, Plaintiff moves the Court for an order enjoining the North
Carolina State Bar and its Disciplinary Hearing Commission from prosecuting plaintiff until
damages have been determined in this action.
WHEREFORE, the plaintiff prays the following relief, of all defendants:
1. Compensatory damages, jointly and severally, in an amount in excess of
$10,000.00;
2. Punitive damages, jointly and severally, in an amount in excess of $10,000.00;
3. Pre- and post-judgment interest;
4. That the costs of this action be taxed against the defendants;
5. That plaintiff be awarded reasonable attorney's fees;
6. That Long be removed from his position as North Carolina District Court Judge
for corrupt and malicious acts;
7. That Buckner be removed from his position as North Carolina Chief District
Court Judge for corrupt and malicious acts;
20
8. That the North Carolina State Bar be permanently enjoined from prosecuting
plaintiff as plaintiff is unable to receive a fair hearing before the North Carolina State Bar's
Disciplinary Hearing Commission; and
10. For such other and further relief the Court deems fair and just.
A JURy TRIAL IS DEMANDED.
This the 27th day of October, 2010.
21
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICEDISTRICT COURT DIVISION
~S=URR==~Y COUNTY
--,<:0..!-7__ ,SP_-.:2=0=5 __
"-,JO~HNNY~~L"",E=""E~B~RAN~,-",C,,,-,H'--- -f7''*'~''I;~~ p.~l211 A 8= ij 1(Full name of petitioning father) ~,,~\l ~f).~
KRISTIN BRADLEY BRANCH(Full name of petitioning mother)
FOR THE ADOPTION OF
COLIN ALEXANDER BRANCH(Full name by which adoptee is to be known if adoption granted)
In accordance with G.S. 48-2-602, this Affidavit is being made to account for any payments or disbursements made or agreedto be made by petitioner(s) in connection with this adoption and is being filed with the court at least 10 days before the entryof the Final Decree. This Affidavit includes the amount of each payment or disbursement and name and address of eachrecipient as allowed by G.S. 48-10-103.
I Description of Expenses /Fees Name & Address of Recipient Amount
Prescription Medicines Wal-Mart Pharmacy $4.312241 Rockford St.Mt. Airy, NC 27030
Home Visit Chapel Hill Pediatric Psychology $781.25205 Sage RoadChapel Hill, NC 27514
Office Visit Chapel Hill Pediatric Psychology $17.63205 Sage RoadChapel Hill, NC 27514
Legal Fees for contested Adoption and Donna Ambler Davis, P.e. $17,400.00contested Termination of Parental Rights 1717 Legion Road, Suite 204
Chapel Hill, NC 27517Expense Reimbursement for Legal Fees Coleman, Gledhill. Hargrave & Peek $7,396.25incurred in connection with Adoption and P. O. Drawer 1529Termination of Parental Rights Hillsborough, NC 27278Wellness Exam & immunizations Mebane Pediatrics $12.75
935 S. 5th StreetMebane, NC 27302
Doctor Visit Primary Care ofMt. Airy $48.00805 Merita StMt. Airy, NC 27030
Continued on Page Two a) 1, ~/L iW\..rt..MJ. 'e- A A/I -"~ r.
I r Adoptive Father,~1&~)r8-c~.
Adoptive Mo~DSS-S191 (Rev. 812000)Children's Services
Additional AffidavitPage Two
Description of Expenses/Fees Name & Address of Recipient I AmountI I
Expense Reimbursement for Legal Fees Marvilyn Bohannan $9,500.00& Expenses in connection with 225 Dressage RoadAdoption and Termination of Parental Mebane, NC 27302Rights [for payment to Coleman, Gledhill,
Hargrave & Peek)
STATE OF NORTH CAROLlNA
F0 V sqi'h COUNTYI '
Sworn to and subscribed before me this '0.fh day of ...!J!..!::!an~u:!±lary~ ~. 2008
I Notary Public
My Commission Expires:_~Lt~I~Z----,'1!..fI=D-.:ct=-- _I I
Note: One DSS-5191 is filled in by the adoptive parent(s) for presentation to the Clerk of Superior Court whothen forwards it to the Division of Social Services, State Department of Health and Human Services.
141 PROVIDENCE ROAD, SUITE 200 • CHAPEL HILL, NC 27514
P.O. DRAWER 4825 • CHAPEL HILL, NC 27515
April 12, 2010
Ms. Betsy Wolfenden1829 E. Franklin StreetBuilding 600Chapel Hill, NC 27514
Dear Betsy:
I received a subpoena from you in last Thursday's mail. My understand-ing is that your proposed deposition has not been properly noticed and, as Iread the Rule, I also was not properly served, so I do not plan to show up.
As a courtesy, however, I would like to provide you with the informationyou are seeking, to the extent that I have any information. I am unaware ofany statement you ever made that you "are going to torture attorneys," butthere is a transcript from the Sullivan case where you said something close tothat. I no longer have the full transcript because Iwithdrew from the case, butI do have an excerpt. I am enclosing a copy.
This is the full extent of my knowledge and/ or information concerningthe matter referenced in your subpoena. I hope it is helpful.
Enclosure:Copy of Transcript Excerpt
cc: Ms. Carmen Hoyme BannonN.C. BarP.O. Box 25908Raleigh, NC 27611
PHONE • 919-967-8989 FAX. 919-419-1429 • WWW. LPHLAW.COM
PARTNERS • SUSAN H. LEWIS • J. DICKSON PHILLIPS III • CHRISTINA GOSHAW HINKLE
ASSOCIATES • BETH POINSETT VON HAGEN • BRIAN C. JOHNSTON • CHELLIE MARTIN JOINES • ELLIOT I. BRADY
Sullivan v Sullivan, 06 CVD 1135, VOL IIDurham County, Durham, NC, 05/26/06
1
2
Page 35not only that you dismiss it on the basis ofthe inadequacy of the pleading; but that you
3 go beyond that and say that Rule 35, as a4
5
6
matter of law, is not appropriate In thiscircumstance. Thank you.
THE COURT: (To Ms. Lewis) All7 right. Thank you, Ms. Lewis.8 (To Ms. Wolfenden)9
10Wolfenden.
MS. WOLFENDEN: (To The Court)11 Thank you, Your Honor, very much. Let me121314
start out by addressing the inadequacy of mymotion. Unfortunately what I think Ms.Lewis did, was that she did not properly
15 interpret the wording in Rule 35. So, letme just begin, Your Honor, and maybe it's16
17 something that I was able to catch because181920
my mom was an English teacher. Rule 35states so, let's listen to this -- theorder may be made only on motion for good
21 cause shown; and upon notice to the personto be examined, and to all parties, and22
23 shall specify the time, place, manner,24 conditions, and scope of the examination,25 and the person or persons by whom it is to
(Pages 1-100) ADM Associates (919) 755-0081
Sullivan v Sullivan, 06 CVD 1135, VOL IIDurham County, Durham, NC, 05/26/06
1 be made. All of those modifiers, Your2 Honor, apply to the order; not to the
motion. And though it is a bit confusing,3
4
5
and it confused me as well when I firstlooked at it, and when I was beginning towrite the motion, which you will ~emember,6
7 Your Honor, I wrote, as per your8
9
instructions, as per The Court's request.So, what I do when I start writing motionsis, I go to two books. I go to North10
11 Carolina Trial Practice Forms, Thorp's; andI also go to the North Carolina CivilProcedure written by G. Gray Wilson. I
12131415
drafted my motion, Your Honor, based on themotion in Thorp's the example given.
16 THE COURT: (To Ms. Wolfenden)17181920212223
24
I understand.(To The Court) Yes.MS. WOLFENDEN:
THE COURT: (To Ms. Wolfenden)Now, here's -- here's my -- here's myquestion, though. I mean --
MS. WOLFENDEN: (To The Court) Okay.THE COURT: (To Ms. Wolfenden)
you know, Ido have a clue in this case25
(Pages 1-100) ADM Associates (919) 755-0081
Sullivan v Sullivan, 06 CVD 1135, VOL IIDurham County, Durham, NC, 05126/06
1
234
5
67
8
9
1011121314151617181920
21222324
( 25
~
MS . WOLFENDEN : (To The Court)(y=-------_ .._---------------
MS. WOLFENDEN: (To The Court)because you all are -- you know, and Ihaven't been able to review the pleadings,too, and for whatever reason I've seemed tohave taken an interest in this proceedingfrom a legal point of view, which is alwaysfun, because that means I can torture thelawyers better --
MS. WOLFENDEN: (To The Court)Uh-huh (yes).
THE COURT: (To Ms. Wolfenden)and that can have fun with me, I might
add. What I'm still failing to understandis, you know, it's her mot£on forappointment of a Guardian Ad Litem. Again,I'm coming back to the same question I askedin the beginning of this hearing, why do Icare? He wants to have a Guardian AdLitem. He has mental conditions; maybe that
will help him move this case along. Eitherway, I'm going to keep -- as I said keepit on my status calendar going forward tomake sure it continues to move and thereisn't any sucker punch that's thrown by
(pages 1-100) ADM Associates (919) 755-0081
r - (;CHIlIl! t::..
NORTII CAROLINA IN THE GENERALCOURTOF mSTICE-:-aiJQUj~~~D~IS~TRICT COURTDMSION
DURHAM COUNTY r- NO.: 99 CVD2992
vs.ORDER
ROOMAMADANPlaintiff
SANJEEV MADANDefendant
TIllS ACTION WAS HEARD in Durham County District Court before the belowsigned Judge Presiding on May 1-4, and May 29-30,2001, upon Motion to StrikeCustody Evaluation Report of Dr. Ginger Calloway, and to Discharge Dr. Calloway, filedby Plaintiff on December 21.2000. R Hayes Hofler, Esq., appeared and represented thePlaintiff Susan H. Lewis, Esq., appeared and represented the Defendant. WIthout filingany written response, Defendant challenged the propriety of said motion-and asserted thatit was improperly interposed. Based on the evidence and testimony received, the Courtmakes the following,
FINDINGS OF FACT:
1. Upon motion of Defendant, Dr. Ginger Calloway was appointed as the Court'sexpert under Rule 706 of the North Carolina Rules of Evidence to conduct a childcustody evaluation regarding the parties' minor child, Savita Madan, DOB March23, 1996. Dr Calloway began her said evaluation in November, 2000.
2. A temporary custody and support order was filed herein on January 4, 2000,following a contested hearing.
3. On January 12,2000, Defendant's attorney filed a motion to withdraw as counsel,and on January 25, 2000, Susan Lewis gave written notice of her appearance asDefendant's counsel in the action, and has been representing Defendant in thisaction ever since.
4. Prior to Susan Lewis' appearance in this action as Defendant's attorney, Dr.Calloway had engaged Ms. Lewis to represent her in a child support matter. Shehad also consulted with Ms. Lewis about her own divorce and the dissolution of aprofessional corporation. Ms Lewis' associate was primary responsible for thechild support matter.
5. Dr. Calloway failed to disclose these prior attorney-client relationships to Plaintiffor her counsel at the time ofMs. Lewis' appearance in this action. Dr. Calloway
disclosed the relationship several months after Dr. Calloway has submitted herfinal report to this court while being deposed by Plaintiff's counsel
6. Dr. Calloway had her last diagnostic interview with Plaintiff on February 22,2000, and at that time informed her that she had :finished her data collection andwould be thereafter writing her evaluation report.
7. On April 3, 2999, Ms Lewis transmitted by e-mail to Dr. Calloway a 16 pageletter containing negative allegations about plaintiff: and requesting that specificrecommendations be included in Dr. Calloway's evaluation report, among themthat no parent be designated as "primary" custodian for said child, and that herclient have physical custody of her fifty percent of the time.
8. The existence of the 16 page e-mail letter was not disclosed to the plaintiff or thePlaintiff's counsel at the time of the communication. They learned of the 16 pageletter because Dr. Calloway referred to the letter in her report.
9. The Plaintiff contends, and the Defendant denies, that Susan Lewis' letter of April3, 2000 is completely outlined in Dr. Calloway' s report/evaluation, and that all ofSusan Lewis' requests for recommendations as contained in said letter arecontained in the recommendations that Dr. Calloway submitted to the Court. TheCourt makes no finding as to this issue .
. 10. The Plaintiff contends, and the Defendant denies, that Dr. Calloway breached theethical standards of her profession by failing to disclose her attorney-clientrelationship with Susan Lewis and failing to disclose Ms. Lewis ex partecommunications to the Plaintiff or the Plaintiff's counsel. The Court makes nofinding as to this issue.
11. However, the Court does find that Dr. Calloway's failure to disclose her attomey-client relationship with Ms. Lewis coupled with the existence of a 16 page ex-parte communication from Ms. Lewis gives the appearance of bias and that Dr.Calloway therefore, should be discharged as the court-appointed expert in thismatter.
12. Either party may hire Dr. Calloway as his or her own expert and attempt toqualify her as an expert to give testimony at the custody trial.
BASED ON THE FORGOING FINDING OF FACT, THE COURT MAKESTHE FOLLOWING,
CONCLUSIONS OF LAW:
1. Plaintiff's Motion to Strike Custody Evaluation Report of Dr. Ginger Calloway,and to Discharge Dr. Calloway was properly filed and heard pursuant to Rules
103, 104, 702, 703, 403, and 706, of the North Carolina Rules of evidence, andappellate court decisions interpreting these rules.
2. Insofar as Plaintiff's motion would be construed as a motion to disqualify thewitness, Dr. Calloway, and prohibit her testimony, Plaintiff's motion should bedenied, in the Court's discretion.
3. In the Court's discretion, Dr. Calloway's evaluation!report should be a part of therecord in this cause only to the extent that it may be admitted as an exhibit at trial,upon a proper tender of the report by either party, and determination of anyobjections at that time. It would be part of the record only to the extent that anyother properly admitted exhibit is part of the record.
4. The failure to disclose the relationships coupled with the exparte communicationfrom Susan Lewis give the appearance of bias and therefore warrant discharge of
-Dr. Calloway as the court-appointed expert.
5. Either party should be allowed to hire Dr. Calloway as his or her own expert. ifthey so choose, and attempt to qualify her as an expert to give testimony at thecustody trial
BASED UPON THE FOREGOING FINDINGS OF FACT ANDCONCLUSIONS OF LAW, THE COURT HEREBY,
ORDERS AS FOLLOWS:
1. Dr. Calloway is hereby discharges as the court-appointed expert in this action.
2. This order does not prohibit either party from hiring Dr. Calloway as an expertand attempting to qualify her as his or her own expert to give testimony in thatcapacity at trial
3. Either party may tender Dr. Calloway's report/evaluation, or any parts thereof attrail, and the Court shall make determination concerning its admissibility at thattime, after hearing any objections interposed. The report/evaluation shall be partof the Court record only to the extent that it is admitted into evidence at trial.
This. the :Ill day of ~~ ~ ,2001~ t
t\-"'-\. '---
Ann E. McKownJudge Presiding