{
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    "judges": [
      "Chief Judge MARTIN and Judge STROUD concur."
    ],
    "parties": [
      "DEBORAH J. LITTLE, Plaintiff v. CHARLIE J. LITTLE, Defendant"
    ],
    "opinions": [
      {
        "text": "GEER, Judge.\nDefendant Charlie J. Little appeals the trial court\u2019s entry of a domestic violence protective order in favor of plaintiff Deborah J. Little. He primarily contends on appeal that the trial court erred in allowing Ms. Little to testify that she had been diagnosed with a cervical neck strain as a result of domestic violence. Because the testimony was inadmissible hearsay and the trial court relied upon that testimony in its order, we reverse.\nFacts\nOn 6 September 2011, Ms. Little filed a complaint seeking a domestic violence protective order. She alleged that defendant assaulted her on 3 September 2011 in the driveway of their residence in Trinity, North Carolina, injuring her neck. The trial court entered an ex parte domestic violence protective order on 6 September 2011 finding that Mr. Little had committed an act of domestic violence against Ms. Little and ordering, among other things, that Mr. Little remain at least 1,000 feet away from Ms. Little at all times. The trial court issued a notice of hearing on the domestic violence protective order for 15 September 2011. Mr. Little filed an answer denying the allegations of domestic violence.\nAfter multiple continuances, the trial court held a hearing on 27 October 2011. At the hearing, the court heard testimony from Ms. Little, Mr. Little, and Deputy Eric Wilson of the Randolph County Sheriffs Department, the officer who had responded to Ms. Little\u2019s call regarding the events of 3 September 2011. During the hearing, the trial court took judicial notice of the criminal file related to the 3 September 2011 events.\nAt the close of the hearing, the trial court entered a domestic violence protective order (1) noting that the court had taken judicial notice of the criminal file in which \u201c[defendant was found guilty on 10/10/11 of assault on female,\u201d (2) finding that defendant used his hand to attempt to choke Ms. Little resulting in neck strain, and (3) ordering, among other things, that defendant should have no contact with Ms. Little and remain at least 1,000 feet away from her at all times. The order was effective through 27 October 2012. Mr. Little timely appealed to this Court.\nDiscussion\n\u201c \u2018[W]hen the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in light of such facts.\u2019 \u201d Burress v. Burress, 195 N.C. App. 447, 449, 672 S.E.2d 732, 734 (2009) (quoting Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)). When there is competent evidence to support the trial court\u2019s findings of fact, those findings are binding on appeal. Id. at 449-50, 672 S.E.2d at 734.\nDefendant first contends on appeal that the trial court committed reversible error in admitting Ms. Little\u2019s testimony that she had been diagnosed with a cervical neck injury. Defendant contends the statement was hearsay not subject to any exception under the North Carolina Rules of Evidence.\nMs. Little testified that at some point after defendant assaulted her, she \u201cnoticed that [her] neck was stiff and [she] was having a hard time swallowing.\u201d She continued:\nMRS. LITTLE: ... so I went to the hospital in Greensboro, and they diagnosed me -\n[DEFENSE COUNSEL]: Well, objection.\nMRS. LITTLE: -- with having a cervical --\nTHE COURT: Hang on. ... If you\u2019re up here, you\u2019re testifying today, and somebody makes an objection like [defense counsel] just did, okay, if you\u2019ll please just stop talking until I can figure out what\u2019s going on, all right? If you are the person or the attorney that makes the objection, I\u2019ll just remind you that you need to make sure you let me know what the legal basis is for your objection and then I\u2019ll-I\u2019ll rule.\nOkay, so, yes, sir, [defense counsel], what\u2019s the objection?\n[DEFENSE COUNSEL]: Hearsay, Your Honor.\nTHE COURT: Overruled. Go ahead.\nMRS. LITTLE: Yes. I was di- -\nTHE COURT: I\u2019m saying - ma\u2019am, you were saying something about the diagnosis. What was it?\nMRS. LITTLE: Cervical strain, and I do have a documentation from the hospital that notes that, and also they prescribed me some pain pills \u2018cause it - and muscle relaxer \u2018cause the doctor told me that I -\n[DEFENSE COUNSEL]: Objection.\nMRS. LITTLE: - was going to -\n[DEFENSE COUNSEL]: Hearsay.\nTHE COURT: Okay. Sustained. Okay. Go ahead, ma\u2019am. What - okay. Okay. I don\u2019t - you\u2019ve already told me what the diagnosis is.\nMRS. LITTLE: Yes.\nTHE COURT: That\u2019s okay. All right. What else?\n\u201c \u2018Hearsay\u2019 is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C.R. Evid. 801(c). Hearsay evidence is generally inadmissible unless it falls within one of the exceptions recognized in the North Carolina Rules of Evidence or another statute. N.C.R. Evid. 802 (\u201cHearsay is not admissible except as provided by statute or by these rules.\u201d).\nThere is no question that the complained-of testimony was an out-of-court statement offered for the truth of the matter asserted. Ms. Little was testifying to what the doctor told her in order to prove to the court that her neck had suffered a cervical strain. The statement was, therefore, inadmissible unless it fell within one of the recognized exceptions to the hearsay rule.\nBecause there is no evidence that the doctor in this case was unavailable, the testimony, in order to be admissible, must fall within one of the exceptions in Rule 803 of the Rules of Evidence, which sets out the exceptions to the hearsay rule that apply regardless of the availability of the person making the statement. We have been unable to identify any specific exception in Rule 803 that might apply. Since the trial court provided no explanation for why it was overruling the hearsay objection, the court could not have admitted the statement under the catchall exception of Rule 803(24). See State v. Smith, 315 N.C. 76, 96, 337 S.E.2d 833, 847 (1985) (finding reversible error where the trial court did not \u201cset[] out in the record his analysis of the admissibility of hearsay testimony pursuant to the requirements of Rule 803(24)\u201d).\nBecause the admission of Ms. Little\u2019s statement regarding what a doctor said about her diagnosis does not fall within any hearsay exception, it was inadmissible evidence. Even so, \u201c [i]t is well established that even when the trial court commits error in allowing the admission of hearsay statements, one must show that such error was prejudicial in order to warrant reversal.\u201d In re F.G.J., M.G.J., 200 N.C. App. 681, 687-88, 684 S.E.2d 745, 750 (2009) (internal quotation marks omitted).\nWhen atrial court sits without a jury, this Court generally \u201cpresume [s] that the [trial] court disregarded] the incompetent evidence\u201d and sustains the trial court\u2019s findings if they are supported by competent evidence. Munchak Corp. v. Caldwell, 301 N.C. 689, 694, 273 S.E.2d 281, 285 (1981). Here, however, the trial court specifically found that plaintiff had suffered \u201cneck strain,\u201d and the only evidence submitted of that diagnosis was Ms. Little\u2019s inadmissible testimony. Consequently, it is apparent that the trial court did, in fact, rely upon the inadmissible hearsay. Given the trial court\u2019s finding of fact, we cannot conclude that admission of the evidence was harmless error.\nDefendant next asserts that the trial court erred in admitting evidence that defendant was convicted in the separate criminal case arising out of the alleged assault. Dining the hearing in this case, Ms. Little testified that she had filed assault charges against Mr. Little. When asked by the trial court whether she had any further testimony, she said: \u201cI did - as far as the assault charge, Mr. Little was found guilty of it.\u201d\nMs. Little also presented an apparently uncertified document from the criminal file in support of her testimony. After Mr. Little\u2019s attorney objected that the document was uncertified, the trial court asked for the document and ruled that he was taking \u201cjudicial notice of the contents of the official file, 11 CR 055306.\u201d The trial court explained that he was finding the criminal file \u201crelevant to the case here.\u201d\nAfter noting Mr. Little\u2019s attorney\u2019s objection to its taking judicial notice of Mr. Little\u2019s criminal file, the court ruled: \u201cThis Court - the Court still takes judicial notice of it.\u201d The trial court then indicated it would grant the domestic violence protective order, but took a recess for the purpose of going to get the file regarding defendant\u2019s criminal conviction:\nI want to just get that file that I took judicial notice of. I\u2019m gonna go ahead and enter the Order. If you want to be here, that\u2019s fine. If not, otherwise, let\u2019s go ahead and enter it. If you want to be here, that\u2019ll be fine, but I\u2019ll -1 haven\u2019t signed it yet.\nAfter a 15-minute recess, the trial court returned and said the following:\nIn this case, although I had rendered my decision prior to actually seeing the criminal file, which I noted I would take judicial notice during the trial itself, Madam Clerk has now produced that. I see that on October 10th, 2011, the defendant appeared in front of Judge Sabiston and entered a plea of not guilty to one count of assault on a female, and contrary to his pleas, was found guilty of assault on a female; again, on October 10th of 2011, for this same incident.\nThe court then included the following finding of fact in the order:\nCriminal charges filed in 11 CR 055306. Court takes judicial notice of contents of that file. Defendant was found guilty on 10/10/11 of assault on female by presiding Judge Sabiston.\nWe first note that defendant does not cite any authority for his contention that the trial court\u2019s going to get Mr. Little\u2019s criminal file and thereby \u201cprocuring evidence for\u201d Ms. Little was improper. Indeed, a \u201c [t]rial court[] may properly take judicial notice of \u2018its own records in any prior or contemporary case when the matter noticed has relevance.\u2019 \u201d Stocum v. Oakley, 185 N.C. App. 56, 61, 648 S.E.2d 227, 232 (2007) (quoting Kenneth S. Broun, Brandis and Broun on North Carolina Evidence \u00a7 26 (5th ed. 1998)); see also Mason v. Town of Fletcher, 149 N.C. App. 636, 640, 561 S.E.2d 524, 527 (2002) (holding finding of fact that right of way was 39.37 feet was proper where finding was supported by trial court\u2019s having taken judicial notice of separate case in same county).\nThe trial court did not specify the basis for its determination that the file was relevant, and the only possible basis we have been able to identify is the doctrine of collateral estoppel. Res judicata cannot apply because Ms. Little was not a party to the criminal proceeding. See Moore v. Young, 260 N.C. 654, 658, 133 S.E.2d 510, 513 (1963) (holding res judi-cata did not apply in wrongful death claim where defendant had been convicted of involuntary manslaughter because plaintiff was not party to criminal action).\nCollateral estoppel applies \u201c \u2018when there has been a final judgment or decree, necessarily determining [the] fact, question or right in issue, rendered by a court of record and of competent jurisdiction, and there is a later suit involving an issue as to the identical fact, question or right theretofore determined, and involving identical parties or parties in privity with a party or parties to the prior suit.\u2019 \u201d King v. Grindstaff 284 N.C. 348, 355, 200 S.E.2d 799, 805 (1973) (quoting Masters v. Dunstan, 256 N.C. 520, 524, 124 S.E.2d 574, 576 (1962)). Our Courts have, however, approved the use of offensive collateral estoppel to bar re-litigation of issues without consideration of privity under certain circumstances. See Rymer v. Estate of Sorrells, 127 N.C. App. 266, 268-69, 488 S.E.2d 838, 840 (1997).\nWe need not decide whether offensive collateral estoppel would apply in this case, however, because the record does not indicate that any final judgment exists in the criminal proceeding. The disposition in the underlying assault action was a prayer for judgment continued (\u201cPJC\u201d) that only imposed as conditions payment of costs and obedience to the preexisting temporary restraining order. Such a PJC does not constitute a final judgment. See State v. Cheek, 31 N.C. App. 379, 381-82, 229 S.E.2d 227, 228 (1976) (\u201c \u2018When the prayer for judgment is continued there is no judgment - only a motion or prayer by the prosecuting officer for judgment. And when the court enters an order continuing the prayer for judgment and at the same time imposes conditions amounting to punishment (fine or imprisonment) the order is in the nature of a final judgment, from which the defendant may appeal. Punishment having been once inflicted, the court has exhausted its power and cannot thereafter impose additional punishment.\u2019 \u201d (quoting State v. Griffin, 246 N.C. 680, 683, 100 S.E.2d 49, 51 (1957))).\nWe, therefore, have not been able to identify any basis for admitting the result of the criminal proceeding in this case. Since the trial court specifically relied upon defendant\u2019s having been found guilty in the criminal action, we cannot conclude that the court\u2019s taking judicial notice of the criminal file was harmless error.\nConsequently, the trial court committed prejudicial error in admitting the hearsay testimony and in taking judicial notice of the criminal file. We, therefore, reverse the trial court\u2019s order.\nN.C. Gen. Stat. \u00a7 50B-3(b) (2011) provides that \u201c[protective orders entered pursuant to this Chapter shall be for a fixed period of time not to exceed one year.\u201d The trial court may, however, renew a protective order \u201cupon a motion by the aggrieved party filed before the expiration of the current order . . . .\u201d Id. While defendant represents to the Court that the order in this case was not renewed, the record before the Court is silent on that question. On remand, in the event the domestic violence protective order was not renewed, the trial court shall enter an order vacating the domestic violence protective order. If the domestic violence protective order was properly renewed, then defendant is entitled to a new trial.\nReversed and remanded.\nChief Judge MARTIN and Judge STROUD concur.",
        "type": "majority",
        "author": "GEER, Judge."
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    "attorneys": [
      "No brief filed on behalf of plaintiff-appellee.",
      "Bell andBrowne, P.A., by Charles T. Browne,for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "DEBORAH J. LITTLE, Plaintiff v. CHARLIE J. LITTLE, Defendant\nNo. COA12-414-2\nFiled 16 April 2013\n1. Evidence \u2014 plaintiffs testimony \u2014 medical diagnosis \u2014 hearsay\nIn a domestic violence protection order proceeding, plaintiffs testimony that she had been diagnosed with a neck injury was hearsay that did not fall within an exception and was prejudicial.\n2. Evidence \u2014 judicial notice \u2014 uncertified criminal file\nIn a domestic violence protection order proceeding, the trial court erred by taking judicial notice of an uncertified criminal file showing that defendant was convicted in the separate criminal case arising out of the alleged assault. Since the trial court specifically relied upon defendant\u2019s having been found guilty in the criminal action, it cannot be concluded that taking judicial notice of the criminal file was harmless error.\n3. Domestic Violence \u2014 protective order \u2014 remanded\u2014renewal\nWhere it was unclear whether a domestic violence protective order had been renewed, the trial court was ordered on remand to vacate the order if it had not been renewed. Defendant was entitled to a new trial if the domestic violence protective order was properly renewed.\nAppeal by defendant from order entered 27 October 2011 by Judge Robert M. Wilkins in Randolph County District Court. Heard in the Court of Appeals 11 September 2012. Opinion filed 15 January 2013. Petition for rehearing granted 21 February 2013. The following opinion supersedes and replaces the opinion filed 15 January 2013.\nNo brief filed on behalf of plaintiff-appellee.\nBell andBrowne, P.A., by Charles T. Browne,for defendant-appellant."
  },
  "file_name": "0499-01",
  "first_page_order": 509,
  "last_page_order": 515
}
