NC Supreme Court Petition for Discretionary Review and Writ of Mandamus

We filed a Petition for Discretionary Review and Writ of Mandamus with the North Carolina Supreme Court on August 1, 2016.

TO THE HONORABLE SUPREME COURT OF NORTH CAROLINA:

Plaintiffs Jeremy and Jenny Bruns respectfully petition the Supreme Court of North Carolina to certify for a discretionary review this “Bypass Petition” before the Court of Appeals determines the matters regarding the Trial Tribunal’s judgments against us. We timely filed our Record on Appeal on 18 July 2016. We also petition the Court to issue a Writ of Mandamaus against the Governor of North Carolina to preform a mandatory ministerial duty. Our grounds for petitioning this Court are from N.C.G.S. 7A-31(a) and N.C. R. App. P. 22, respectively. The subject matters of our case involve legal principles and constitutional issues of major significance to the jurisprudence of this State, and the subject matters also have significant public interest for the entire public’s general welfare. The issues in our case requires this Court to develop North Carolina law and set forth precedent that will guide future cases.

Judge Young violated NC Code of Judicial Conduct Canon 3, D. Remittal of disqualification 25 January 2016 We didn’t agree in writing nor independently of judge’s participation.

FACTS

Procedural History:

Plaintiffs Jeremy and Jenny Bruns commenced this action by filing their Complaint and issuance of summonses on 6 November 2015. We filed an affidavit of return of service by certified mail for all defendants 7 December 2015. We appealed from the Trial Tribunal’s 5 February 2016 order granting motion to dismiss complaint as to defendants McCrory, Perry, Tennyson, and the State of North Carolina filed 8 February 2016; its 5 February 2016 order granting motion to dismiss Dalton Bryant Junior filed 10 February 2016; and its 17 February 2016 order granting motion to dismiss USAA filed 22 February 2016 by the Honorable Reuben F. Young, Superior Court Judge presiding. All aforementioned orders were dismissed with prejudice and were rendered via email after the 25 January 2016 Hearing. We served written Notice of Appeal on 26 February 2016, and it was stamped filed 1 March 2016. The Record on Appeal was filed in the Court of Appeals on 18 July 2016 and was docketed on 19 July 2016.

Basis for this Petition:

Our case arises from “The Calamity” on November 10, 2012, in which the owner a vehicle, Dalton Bryant Senior, “Senior,” negligently entrusted it to a known drug addict and reckless driver, Rhonda Bryant, “Rhonda,” who brutally maimed Jeremy Bruns, torturing both him and his bystander wife Jenny, for nearly an hour while Jeremy suffered in sheer agony because he was trapped and pinned between vehicles on the verge of death for nearly an hour. Nobody thought that Jeremy would or could live, including the dozens of emergency officials at the scene, where medics panicked because Jeremy was losing blood faster than they could replenish it as it flowed from his body down the street and into the gutter. The police officer initially waited for Jeremy’s death so that Rhonda could be “properly” charged with manslaughter, but she was eventually charged with DWI because Jeremy, best described in the officer’s words of astonishment and respect, said to Jenny, “He’s a strong son of a bitch.”

Our complaint alleged USAA’s numerous acts bad faith toward us, inter alia, for repeated refusals to acknowledge and process Jenny’s independent bystander bodily injury claim attempts on both the owner’s and driver’s policies; for repeated assertions to underpay our 4 policy claims by tendering in total for both Jeremy and Jenny what USAA repeatedly misrepresented as the “total available policy limits of $30K” in exchange for permanently and wholly releasing both tortfeasors, the owner and driver of the vehicle, of all liability and future claims against them; and for unreasonable delays and vexatious denials of our asserted rights and status as intended beneficiaries to the automobile insurance policies as well as our other losses associated with Jeremy’s truck.

Against the State we alleged, inter alia, violations of our constitutional rights resulting in harm to us personally as individuals and harm to us as among a class of all citizens who use the public roads because of the State’s unlawful, unreasonable, unconscionable, and unconstitutional premature post-conviction release of Rhonda from prison due to improperly crediting and reducing her sentence with Earned Time in spite of the fact that the state admitted that DWI offenders are ineligible for Earned Time. To justify applying Earned Time credits to Rhonda’s lawfully convicted and ordered sentence, the State denies that she was convicted of Felony DWI by using the flatly wrong logic of interpreting the statute by its title only and divorcing both Driving and Intoxication from Rhonda’s conviction of § 20-141.4(a3) Felony Serious Injury by Vehicle, by explicitly insisting that “impaired driving” is merely an element and not functional to her conviction because she was essentially convicted of Bodily Injury only, i.e., DWI is not the nature of this statute for which she was convicted and because it is not a DWI offense, they say, Rhonda was eligible for Earned Time, so they accordingly released her down to her minimum sentence because of the time that she unlawfully “earned.” This statute is inextricably linked with DWI. The State disregards the statute’s clear language, essential purpose, and spirit of the law, as well as the surrounding statutes, which unambiguously define Rhonda’s conviction is a Felony DWI. We also argued that it is every citizen’s inherent constitutional right as an entitlement of access to accurate and complete criminal records maintained on all people in the State by the State, and that $2,600 plus the work of petitioning 100 counties individually is unconstitutional labor and expense for obtaining any one person’s official, certified state-wide background check.

We alleged that Dalton Bryant Junior vandalized our mailbox using profanity with a nature and in a manner such that only he would have committed that particular violation, which is aggravated in outrageousness because it conspicuously resides along a heavily-trafficked route for elementary age children to walk to school. We interpret Junior’s message as a threat and intent for vengeance for his mother’s conviction and for our active public role to ensure that she was held accountable by the State for her conduct, and we also alleged that Junior was an accomplice who participated in our home’s burglary, a belief that all of our neighbors share. Jenny is terrified of Junior and couldn’t sleep any more in that house when we had court business to do in Fayetteville. Forevermore we must live in quarters with elevated security because of fear of Junior. He is a menace, he’s dangerous, he’s recidivist, he’s unredeemable, and over these past years many people have fed us information about him but don’t want to go on the record and become his target for vengeance. We understand and won’t force anybody to testify against him even if it hurts us.

We allege that the Trial Tribunal committed a gross miscarriage of justice against us by granting Defendants’ dismissals, thereby ignoring our requests for injunctive relief as well as declarative judgments to determine our rights and status, violated our constitutional rights, disregarded judicial canons because, inter alia, the Trial Tribunal was hostile toward us as pro se plaintiffs, not impartial such that bias was in favor of our opponents, and didn’t read our complaint, exhibits, and subsequent filings with the required circumspection that all Plaintiffs are entitled to expect from a Judge when filing a petition with the Court for grievances of harm and for redress of those harms.

Rhonda is not penitent. She continued to drive intoxicated in our neighborhood after she mutilated Jeremy and before she was convicted, and she continues to drive to this day since her release from prison, speeding through that neighborhood on a suspended license in utter disregard for the law and for other people. Rhonda, like her son, is a menace to society because they are both people whose actions, attitudes, and ideas are dangerous and harmful. She is an unredeemable recidivist. Since the calamity, dozens of people came to us with ugly information about them, and to date we haven’t heard one good thing about them. They are above the law because they violate it repeatedly, yet officials don’t hold them accountable, so it seems like they are connected to someone powerful, or officials don’t care to hold them accountable and protect the public from them. Junior bragged about doing cocaine and getting caught violating probation several times earlier this year, as he’s on probation for the six gun felony charges with the burglary where the charges were all dropped to a single misdemeanor because he ratted out and betrayed his accomplices in that crime for his own selfishness, yet again he gets away without appropriate punishment for his criminality. After the calamity, dozens of people approached Jenny and asked if she wanted Rhonda to be killed, and Jenny said “No” because at the time she believed in the justice system and that Rhonda would be punished by fairly. HA. The joke, so far, is on us. 

REASONS WHY CERTIFICATION AND MANDAMUS SHOULD ISSUE

“Your husband’s legs won’t grow back, but Rhonda Bryant needs to move on with her life,” said ADA Rosalyn Hood on speaker phone to Jenny while Jeremy listened, both of us with our mouths agape in utter disbelief. This attitude characterizes our experience with the manner of the majority of North Carolina officials with regards to DWI offenders and the State’s lack of compassion to DWI victims. Hood said that Judge Ammons’ offer of 2 months in jail was a good deal and an adequate means of accountability for Rhonda’s conduct and consequences, but that proposed sentence was less time than Jeremy spent as an inpatient for the injuries that Rhonda inflicted. It made us sick. It made us realize that we had to take our story public and get media support if we wanted justice. Throughout this entire process, the State has mentally tortured us and continues to do so.

A State has a legitimate interest in keeping its roads safe from DWI offenders, but NC has a grade of G, as in lower than an F, because it works against furthering that interest as evinced by its systemic failures to prosecute and sentence offenders and failing to hold them accountable as the law prescribes and social policy demands. BAC results take so long to come back that cases get thrown out, offenders game the system for example by getting numerous unjustified continuances to wait for the date when the officer can’t attend and thus get their cases thrown out, unsympathetic DAs and judges multiply the trauma of victims, and in the instant case, we have a Governor, Attorney General, and Trial Tribunal who deny that DWI offenders are actually DWI offenders – including the ones who plead guilty to DWI and are sentenced for such but then released from prison earlier than mandated by law because these officials grant them unfounded amnesty from the debt that they owe to society.

The State’s denial that Rhonda was convicted of DWI shocks the conscious and is unconstitutional.

The State sends a clear message: DWI victims don’t matter, and road safety doesn’t matter. The North Carolina courts are a sham: they are not genuine or authentic hallowed places of justice because they are illegitimate and corrupt. Our case is dragging on interminably despite statutory mandates. North Carolina is causing us to suffer – victimizers, double victimizing DWI victims. When the Attorney General reads the statutes and policies and disregards them by concluding that Rhonda’s conviction is not a DWI, and the Trial Tribunal goes along with him, that indicates the system is corrupt and deprived of the order that is supposed to accompany law. The Governor’s ill will cannot be permitted to override clear statutory language, especially when that will is contrary to public welfare. This conduct is repugnant to the Constitution and laws of the United States.

As a practical matter, to accept the State’s position will erode rights such as equal protection and would unleash a principle of constitutional law that would have no obvious stopping place. Their position is not substantially justified. To not label Rhonda’s crime as DWI retards efforts to revoke dangerous drivers’ licenses and remove unsafe drivers from the roads, and it fails to punish recidivist offenders from the communities that they repeatedly terrorize.

DWI is pernicious, pervasive, and deadly, yet North Carolina officials enable it through lack of enforcement and accountability in a brazen miscarriage of justice and gross abuse of the public’s trust. We notified officials of their mistake, and they refused to fix the problem. They didn’t launch an investigation, the Attorney General supported the error by fighting us, and the Trial Tribunal also didn’t correct it. These are ethical and legal violations. Our complaint contained a host of issues that the Trial Tribunal refused to address. Our case is a classification involving unspoken fundamental rights.

Among North Carolina’s stated policy goals is to reduce tragedies caused by DWI. If it is acceptable for the State to arbitrarily ignore laws and illegally release DWI offenders before they have completed their minimum sentences, then there are no limits to who the State lets out of prison early for no good reason other than whim, corrupt connection, or whatever, against the law of the State and the will of the people. The Governor could say, “Mr. X isn’t in prison for mass murder and pedophilia because I say so and thus let him go free without any say from the public.” We don’t think this is just or in accordance with the Governor’s constitutional oath to uphold laws because this is an example of unlimited and unchecked power that is contrary to the essence of the U.S. Constitution.

Jeremy and Jenny Bruns seek mandamus to return Rhonda back to prison because the State unlawfully released her early on pettifoggery, that is deception over a petty point: they denied the fact that her conviction was a DWI offense, so they illegally credited her sentence with Earned Time. When the State fails to enforce a felon’s minimum sentence prescription, that conduct is not only unlawful, but unconstitutional, and the #1 redress is to return that felon to prison to complete the minimum sentence because it is a debt owed to society.

We also ask this Court to grant our Petition for Discretionary Review to settle all of our issues herein and in our Complaint to establish our rights and status, grant our injunction of a permanent restraining order against Dalton Bryant Junior, vacate the Trial Tribunal’s Orders dismissing our actions against the State, USAA, and Junior, and remand our case to a new (different) and compassionate pro se-friendly judge for fair adjudication of the allegations in our original Complaint.

The miscarriage of justice and constitutional violations that have been committed by the Trial Tribunal and defendants is an affront to everybody in the State and Country and of such importance to the jurisprudence of the State that these violations require correction by this Court. Furthermore, the questions of law that went unanswered by the Trial Tribunal are are material to the proper adjudication of our issues.

The State cheated us, USAA cheated us, and the Bryants cheated us. The State knowingly cheated us and every member of society out from the satisfaction of seeing an unremorseful criminal serve her complete debt owed to society based on a fraudulent reason. USAA cheated us by knowingly jerking us around and refusing to pay policy proceeds that we are due. Junior cheated us by vandalizing our property, threatening us, robbing our home, and causing us lifetime worry about our safety. Rhonda and Senior cheated us by being indecent members of society who aren’t concerned about the welfare of their fellow neighbors. The Trial Tribunal cheated us by violating our statutory and constitutional rights in cahoots with the defendants because it’s not possible for a judge to be so incompetent as to not admit that Rhonda’s violation was a DWI and not order Rhonda back to prison to serve the remainder of her debt owed to society once the issue was brought to his attention.

To say that we are disheartened about the justice system in North Carolina is an understatement. The law is in our favor, yet the State’s conduct is not consistent with current law and represents bad public policy. 

ISSUES TO BE BRIEFED

In the event the Court allows this Petition for Discretionary Review, Petitioners intend to present the following issues in our brief to the Court for review:

ISSUE: DID USAA COMMIT FRAUD AGAINST THE PLAINTIFFS? Fraud is also in the acts of concealment and hindrance and therefore don’t require a misrepresentation from a debtor to a creditor, Husky v. Ritz, 578 U.S. ____ (2016) (Sotomayor, J.) (p. 2 pdf). “The term ‘actual fraud’ in § 523(a)(2)(A) encompasses forms of fraud, like fraudulent conveyance schemes, that can be effected without false representation” (pdf p. 5). Where actual fraud doesn’t mean the same thing as false representation because both are delineated in statute therefore they are not redundant. “‘Actual fraud’ has two parts: actual and fraud. The word ‘actual’ has a simple meaning in the context of common law fraud: it denotes any fraud that ‘involv[es] moral turpitude or intentional wrong.’ Neal v. Clark, 95 U.S. 704, 709 (1878)…Thus, anything that counts as ‘fraud’ and is done with wrongful intent is ‘actual fraud.’ Although ‘fraud’ connotes deception or trickery generally, the term is difficult to define more precisely.” (pdf p. 6). USAA’s fraud wasn’t to induce us into a contract, it was, inter alia, to induce us to settle for less than a reasonable man thinks that he is owed. The fraudulent conduct, inter alia, was concealment and hindrance conduct. “False representation has never been a required element of ‘actual fraud,’ and we decline to adopt it as one today.” (pdf p. 8). Actual fraud equals willful and malicious injury. See Kawaauhan v. Geiger, 523 U.S. 57, 61 (1998) discussing injuries resulting from intentional torts. The dissent says that the majority holds that fraud doesn’t need false representation, and that a creditor doesn’t need to rely on offender’s actions or inactions, that the majority omits ‘reliance’ on some sort of false statement, misrepresentation, or omission to find actual fraud. (pdf p. 18). ‘Actual fraud’ consists of any deceit, artifice, trick, or design involving direct and active operation of the mind used to circumvent and cheat another. (pdf p. 19).

ISSUE: IS DETERMINING THE NUMBER OF OCCURRENCES AN ORDINARY AND EXPECTED FUNCTION OF THE TRIAL TRIBUNAL TO DETERMINE RIGHTS AND STATUS? USAA disputes the number of occurrences triggering insurance. North Carolina courts have adopted a cause test to determine how many occurrences an event encompassed. See Gaston Cnty., 524 S.E.2d at 565. Under this type of test, the number of occurrences “is determined by the cause or causes of the resulting injury.” Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56, 61, (3d Cir. 1982). This cause test stands in opposition to the effect test, which treats each injury as a separate occurrence. Michael Murray, Note, The Law of Describing Accidents: A New Proposal for Determining the Number of Occurrences in Insurance, 118 Yale L.J. 1484, 1499 (2009). Therefore, to determine how many occurrences stemmed from...we must evaluate the cause or causes of the incident rather than its effects…district courts…employed the proximate cause theory, finding that the ‘proper application of the cause approach…requires asking which negligent act, or continuum of negligent acts, on the part of the insured gave rise to liability…the court was evaluating whether the incident had triggered one insurance policy or multiple policies…court’s conclusions that it is more appropriate to ‘focus on the act of the insured that gave rise to their liability’ …guided by the settled rule that insurance policy provision s ”which extend coverage must be construed liberally so as to provide coverage, whenever possible by the reasonable construction…all of this qtd. in unpublished Mitsui Sumitomo Insurance Company of America v. Duke University Health System, Inc., No. 11-2057 (4^th Cir., 2013)

ISSUE: IS THE STANDARD IN NORTH CAROLINA FOR DETERMINING THE NUMBER OF OCCURENCES THE STANDARD ENUNCIATED IN GASTON COUNTY? 

ISSUE: IS NEGLIGENT ENTRUSTMENT AT LEAST TWO OCCURENCES IN BLACK LETTER LAW?

ISSUE: IN NEGLIGENT ENTRUSTMENT ARE THE INSURANCE POLICIES THAT COVER LIABLE CONDUCT TRIGGERED FOR THE OWNER AND DRIVER SEPARATELY BECAUSE THE DRIVER IS RESPONSIBLE DUE TO “OWNERSHIP” AND THE DRIVER IS RESPONIBLE DUE TO “USE”? USAA can’t draft policy to absolve liability for both driver and owner in cases of negligent entrustment even when the policies in question belong to a husband and wife residing in the same household. FRA holds that each policy is triggered per liable insured even if there is one resulting accident there can be multiple tortfeasors whose policies will be operational. In a case decided by the Supreme Court of Virginia, Haislip v. Southern Heritage Ins. Co., 254 Va. 265, 492 S.E.2d 135 (1997), requires an insurance company to provide full and separate coverage to its named insured who was guilty of negligent entrustment of a vehicle, even though the insurer had already paid the insurance policy limits on behalf of a permissive user who negligently operated the insured vehicle by using Virginia’s analogous statute to N.C.G.S. 20-279.21(b). We also contend that the Bryants’ insurance contract requires USAA to provide $30K of liability coverage per person up to $60K per occurrence to Rhonda, and another $30K of coverage per person up to $60K per occurrence to Senior. “The plain language contained in Code § 38.2-2204(A)…contain[s] a provision insuring the named insured, and any other person using the motor vehicle. The General Assembly’s use of the word “and” in Code § 38.2-2204(A) means that Southern Heritage is required to provide insurance coverage to both Price, who is the named insured, and Goode, who was driving the motor vehicle with Price’s consent…Even though Southern Heritage’s insurance policy contains a limitation of $25,000 per occurrence, that limitation, if applied, would violate the omnibus clause because once Southern Heritage paid the $25,000 to settle Haislip’s claims against Good, Price, the named insured, who paid the policy premiums, would not receive any liability coverage. Thus, Southern Heritage’s interpretation of its policy and the omnibus clause would render the word “and” used in the statute meaningless. Accordingly, we will enter a declaration here that…requires Southern Heritage to provide a maximum of $25,000 in coverage for any claim that Haislip may make against Price in addition to the $25,000 that Southern Heritage as already paid to settle Haislip’s claims against Goode.”

ISSUE: IN NEGLIGENT ENTRUSTMENT ARE THE OWNER AND DRIVER EACH LIABLE BECAUSE FRA SAYS THAT “THE INSURER SHALL UNDERTAKE TO PAY ON BEHALF OF THE INSURED ALL SUMS WHICH THE INSURED SHALL BE LEGALLY RESPONSIBLE FOR? USAA’s Insuring Agreement says “We will pay damages for bodily injury or property damage for which any insured becomes legally responsible because of an auto accident.” USAA defines ‘insured’ as “You or any family member for the ownership, maintenance or use of any auto or trailer.” (R p 704) (emphasis ours). These are two types of liabilities with a different set of facts that cause liability for two different people’s events and circumstances as a trigger for coverage. There is one policy for the family, but there are two triggering events to cover two people who triggered each of their policies discretely. If each insured is legally responsible for his or her own liable conduct, then each policy is triggered because his or her own conduct independent of the other’s policy. “[T]he sum of the liability of all jointly and severally liable tortfeasors…the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident.” Id. 637. Liability for each tortfeasor triggers each tortfeasor’s policy.

ISSUE: CAN THERE BE TWO TRIGGERING CAUSES FOR ONE ACCIDENT? “When tortfeasors’ liability policies do not provide sufficient recovery…” Lunsford p. 632, this demonstrates that the answer to this issue is yes because this case is about one accident with multiple tortfeasors whose policies tender benefits in a particular sequence.

ISSUE: WHEN A CLAIMANT MAKES A CLAIM ON AN INSURANCE POLICY, MUST THE INSURER RESPOND TO THAT CLAIMANT, BE IT DENIAL, APPROVAL, OR REQUEST FO RMORE INFORMATION WITHOUT UNREASONABLE DELAY? USAA performed none of these actions with Jenny’s claim attempts.

ISSUE: DO WE HAVE THE RIGHT TO EXPECT GOOD FAITH AND FAIR DEALING AS BENEFICIARIES TO AN AUTOMOBILE POLICY?

ISSUE: DOES IGNORING JENNY’S BODILY INJURY CLAIM ATTEMPTS UNDER § 75-1.1 AFFECT COMMERCE BECAUSE AS THE BENEFICIARY TO THE CONTRACT CLAIMANTS ARE ENTITLED TO AN EXCHANGE OF MONEY IN THE FORM OF COLLECTING POLICY PROCEEDS, AND IF SO IS USAA IN BAD FAITH AS A MATTER OF LAW? The statute per §75-2 doesn’t require us to have a contract, therefore we also don’t need a judgment to have a ruling that as a matter of law USAA acted in bad faith. Bad faith can be claimed without a contract between parties because commerce privity is all that is necessary.

ISSUE: AS BENEFICIARIES TO AN INSURANCE POLICY DO WE HAVE THE RIGHT TO MAINTAIN AN ACTION TO ENFORCE THE CONTRACT BECAUSE WE HAVE VESTED RIGHTS TO THE PROCEEDS OF THE POLICY? IN NORTH CAROLINA DO INTENDED BENEFICIARIES HAVE STANDING TO ENFORCE A CONTRACT BETWEEN TWO OTHER PARTIES? Restatement (Second) of Contracts § 308, “It is not essential to the creation of a right in an intended beneficiary that he be identified when a contract containing the promise is made. In Flexfab v. United States, 424, f.3d 1254, 1260 (Fed. Cir. 2015), “[T]hird-party beneficiary status is not reserved for those parties who benefit expressly under a given contract. We note, too, that “the intended beneficiary need not be specifically or individually identified in the contract, but must fall within a class clearly intended to be benefitted thereby. Evidence of intent can be adduced. In short, it is sufficient to ask in they typical case ‘whether the beneficiary would be reasonable in relying on the promise as manifesting an intention to confer a right on him.’”

ISSUE: DOES THE FINDING THAT AN INSURANCE CONTRACT BENEFITS PEACE OF MIND FOR FIRST PARTY MEAN THAT IT DOESN’T ALSO INTEND TO BENEFIT THE THIRD PARTY BENEFICIARY? Both parties to the contract intend to benefit by payment of policy proceeds by the design of an insurance contract. Recognition of third-party rights effectuates the objective and subjective intentions of the parties to the contract. The contract satisfies the subjective and objective intent to benefit third parties because it explicitly states USAA’s promise of intent to benefit third parties. We need not look outside of the insurance contract to determine that plaintiffs are the intended beneficiaries. Creditor beneficiaries are a third party and receive the benefit when there is a legal duty for a promise to perform. The federal courts and most state courts follow the Restatement (Second) of Contracts in determining the viability of any third-party beneficiary claim. Section 302 provides: (1) unless otherwise agreed between promisor and promissee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either (a) the performance of the promise ill satisfy an obligation of the promise to pay money to the beneficiary. Restatement (Second) of Contracts § 302.

ISSUE: WHEN USAA REFUSED TO PAY OUR CLAIMS, DO WE HAVE A CAUSE OF ACTION FOR BREACH OF CONTRACT AND BAD FAITH? Our unfair and deceptive practice claim is based on not acknowledging and processing claims, not paying for both the driver and owner, not paying for other losses with the truck, not allowing us to file a burglary claim without making an oral statement, for the delay, for forcing us to file a lawsuit, for insisting that $30K was the limit of our entitlement due.

ISSUE: DID USAA VIOLATE § 58-3-115. TWISITNG WITH RESPECT TO INSURANCE POLICIES? No insurer shall make or issue, or cause to be issued, any written or oral statement that willfully misrepresents or willfully makes and incomplete comparison as to the terms, conditions or benefits contained in any policy of insurance for the purpose of inducing or attempting to induce a policyholder in any way to terminated or surrender, exchange or convert any insurance policy. USAA attempted to induce us many times to terminate the coverage by tendering misrepresented policy limits available. USAA’s arguments crumble upon the slightest of examinations. USAA’s vexatious use of case law is so far afield from the reality of the cases’ actual holdings and contrary to the holdings’ intents to meet the ends of justice that USAA hangs itself by clearly demonstrating that they intentionally crush justice and the public good for USAA’s own benefit such that they maliciously harm all insurance policy holders because USAA is practicing deceptive applications of case law to injure beneficiaries by withholding rightful policy benefits due in exchange for USAA’s own enrichment by keeping those proceeds for themselves (R p 639-646). USAA and other insurance companies have perpetuated legal myths to the detriment of policyholders for decades based on warped readings and twisted presentations of North Carolina case law to the Courts, which they have blindly accepted and continue to promulgate the unwarranted authority of the insurance companies over the victims’ attempts for justice and payments of legally and rightfully due policy proceeds. One precedent should be overturned by this court, Wilson, for reasons which will become clear infra. But before we follow the journey through North Carolina’s case history as cited and relied upon by USAA in its defense of our allegations against them, we must distinguish that in our case, the liability of Rhonda and Senior and USAA’s duty of liability for our claims are clearly established by the facts and acts without the necessity of a judgment to establish liability and liability for at least 16 reasons: (1) there were dozens of neighbors and emergency officials on the scene as eye witnesses to Rhonda’s liability because she was high and drunk while she remained in the driver’s seat throughout the hour (R p 340) while rescuers tried to free Jeremy and save his life; (2) Rhonda’s intoxication was annotated on the police report, along with her speeding 45 in a 25, and driving left of center (R p 180-3), and she was subsequently charged with DWI; (3) The police report also notes that Senior is the owner of the vehicle (R p 180) and that he, “advised the officers that [Rhonda] sometimes used illegal drugs (R  p 340); (4) Rhonda admitted that she suffers from addictions, abused prescription medications, abused illegal narcotics including cocaine and marijuana, and on the day of the calamity she relapsed using cocaine and alcohol (R p 344-45); (5) the BAC results established that she was legally drunk and had cocaine and other drugs in her system that “suggested recent use of the drug and that alcohol had been consumed prior to or simultaneously with the use of cocaine” (R p 341); (6) Jenny wrote detailed summaries of the events of the calamity and its aftermath on her blog (R p 43, 228, 344); (7) more than 17 months after the calamity, Rhonda finally confessed in court and rendered her legal admission of guilt for both felony and misdemeanor DWI (R p 336) for which she was convicted and sentenced (R p 374); (8) USAA’s admitted liability to us, such as tendering policy limits to Jeremy (and arguably Jenny, too) on January 19, 2013 without us making formal bodily injury claims or giving any statements or any tangible proof whatsoever of our losses (R p 243); (9) on August 6, 2013, USAA attempted to procure our full release of both Bryants and USAA, “Jeremy C Bruns and Spouse” in exchange for the total sum of the lowball offer of “$30,000” to “release, remise and forever discharge Dalton Bryant and Rhonda Bryant, the insurers…from any liability under USAA Policy Number 014229549” and “should an action be tried to a conclusion and Judgment entered against Dalton Bryant and Rhonda Bryant, in excess of the $30,000 which has been paid by USAA, [Jeremy and Jenny] will under no circumstances seek satisfaction of or attempt to collect such Judgment by levy or execution upon the property of Dalton Bryant and Rhonda Bryant except to the extent that there may be other policies of insurance coverage, whether excess coverage, underinsured motorist coverage, or other insurance applicable to the loss” (R p 248) [note that we contend infra that Rhonda or Dalton owes us separate or excess coverage because of Negligent Entrustment, and this contract that USAA attempted to induce us to give up all of our rights and claims against them, waiving any action of any kind arising from the calamity, by releasing them from that obligation of liability as separate, liable tortfeasors, i.e., USAA attempted to permanently sever liability and our rights to proceeds for our claims of Negligent Entrustment while knowing that the driver and the owner are each liable for the damages that each proximately caused, see for example Roberts v. Hill, 240 N.C. 373, 82 S.E.2s 373 (1954) demonstrating that the Supreme Court of North Carolina has long recognized the theory of negligent entrustment. North Carolina recognizes both. USAA tried to preclude our rights to full recovery of policy benefits that we are entitled to in their attempt to actuate our agreement to extinguish all of our claims against USAA and the Bryants in regard to all insurance coverage and their personal assets beyond insurance coverage]; (10) USAA reaffirmed liability on June 25, 2015 “When our department received the initial claim, an investigation was conducted to obtain information to verify the facts of loss and the severity of the damages incurred. Based on the information complied by our claims examiners, it was appropriate to extend, or tender, the liability limits available under this policy…From our vantage point, the nature and extent of injuries warranted a prompt offer of the available policy limits, in exchange for a full and final release of all claims against the named insureds under this policy…We reiterate that our offer is $30,000 which represents the sum total of available coverage under this policy” (R p 279-80); (11) Our June 26, 2015 email again asserted our rights, “USAA continues to ignore the fact that we have valid claims against both Bryants’ policies: Rhonda as the driver and Dalton as the owner” (R p 282), to which they responded the same day, “Your are correct that you have cause of action against the driver and owner of the vehicle, however the policy provides coverage on a per incident basis” (R p 283) and so we asked on June 27, 2015, “Whose policy limits of $30K was offered? Rhonda’s or Dalton’s” (R p 287), to which they responded June 29, 2015, “The policy is for both Rhonda and Dalton Bryant, as they are husband and wife. They do not have two separate policies” (R p 288); (12) after our complaint to the North Carolina Department of Insurance, this agency said, “The company has explained that it has extended a bodily injury settlement offer in the amount of $30,000 to settle Mrs. Bruns’ claim” (R p 291); (13) USAA sent us an email July 17, 2015 finally admitting liability, more than 32 months after the calamity, for Jenny’s bodily injury claims, “Based on additional documentation gathered by us regarding the accident, we believe we are in a position to make an offer of the remaining bodily injury policy limits to you in settlement of your separate and independent claim” (R p 300); (14) The act of eventually tendering so-called “policy limits” for both Jeremy and Jenny’s claims to release both Bryants without proof of our injuries to establish liability is clear admission that USAA recognized that liability was proven and established to their satisfaction, and USAA attempted to “cure” their bad faith conduct toward us because they asserted that their duties of liability are complete in their January 14, 2016 Memorandum to the Trial Tribunal, “USAA has extended all of the available liability coverage under the Bryant policy to the Bruns, which effectively has extinguished any future obligation that might arise from any subsequent judgment that might be entered against the Bryant’s (sic)” (R p 644) [note that USAA continues to deny liability for each of their tortfeasors and conflates them into one person, one policy, one proximate cause, one liable policyholder, and this statement by USAA also proves our allegations of USAA’s undue delay without just cause in offering to pay (a portion of) our claims, acknowledges that Jenny’s bodily injury claims exist, shows USAA’s understanding of its obligations under the policies, and tries to hide the fact that their settlement conduct was in bad faith that included misrepresentations made during settlement negotiations and continuing their course of fraudulent conduct since we filed our lawsuit. Bad faith conduct includes unreasonableness in paying a claim as well as the manner in which a claim is processed, and USAA’s “policy limits” offer is irrelevant and insufficient to cover the actual and consequential damages caused by USAA’s bad faith conduct toward us]; (15) USAA admitted “clear liability and no contributory negligence on [Jeremy’s and Jenny’s] part” when Jenny made the truck claim (R p 106); (16) USAA paid for a portion of Jeremy’s truck damages (R p 245-6). Now that we have established clear and total liability without the necessity of a judgment to validate the obvious, we move on to the journey of working through the case law that USAA relies upon. Reading the actual text of the Wilson decision, it says “when reviewing a dismissal pursuant to Rule 12(b)(6), Miller, 112 N.C. App at 299-300, 435 S.E.2d at 541, we conclude that North Carolina does not recognize a cause of action for third-party claimants against the insurance company of an adverse party based on unfair and deceptive trade practice under NCGS 75-1.1.” But Miller doesn’t actually say that anywhere in its ruling. Wilson puts forth an erroneous, convoluted, and plainly wrong interpretation of Miller’s holdings because Miller said nothing of the sort. To be clear, Wilson totally and completely made up the fact that North Carolina doesn’t recognize a cause of action for third-party claimants against an insurance company. Miller has been repeatedly misconstrued by the insurance companies and accepted by the courts who rely upon the insurance companies’ citations of Miller without independent research. The oft-quoted “Wilson Rule” is a sham argued by insurance companies to deny bad faith claims because there is no such rule in Miller’s judgment that denies third-party claimants a cause of action to an insurance policy as a third-party beneficiary. What Miller does say is this: “To prevail on a claim for unfair and deceptive trade practice, one must show: (1) an unfair or deceptive act or practice, or unfair method of competition, (2) in or affecting commerce, and (3) which proximately caused actual injury to the plaintiff or his business. A practice is unfair when it offends established public policy and when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers. If a party engages in conduct that results in an inequitable assertion of his power or position, he has committed an unfair act or practice.” Miller goes on to say that the insurance business is in commerce when a consumer purchases a policy. This is talking about a first-party issue and doesn’t address the third-party context of commerce like N.C.G.S.§ 75-1.1(b) does, that “commerce includes all business activities, however denominated” which obviously includes paying an intended beneficiary the proceeds of a contract because not paying valid claims to valid beneficiaries is a restraint in commerce, the exchange of money. Moreover, Miller cites, “A bad faith refusal to provide insurance coverage or to pay a justifiable claim may give rise to a claim for punitive damages.” And “An insurance company is expected to deal fairly and in good faith with its policyholders.” There is nothing in Miller that specifically exempts a third-party from pursuing a bad faith claim against an insurance company. The holding in Miller is that the plaintiffs are entitled to recover under Chapter 75 underinsured benefits and punitive damages over a dispute about a prior signed release where “Plaintiff is, therefore, a person insured under the policy” because he was living in the same household as his father regarding stacking UIM policies.

ISSUE: DOES MILLER CONTAIN ANY HOLDING WITH REGARDS TO DETERMINING THE VALIDITY OR INVALIDITY OF THIRD-PARTY BAD FAITH CLAIMS? Wilson weirdly invents and tries to extrapolate from Miller the denial and exclusion of third-party bad faith claims from where there is no genuine basis to extrapolate that recognition of such non-right – Wilson’s proclamation is unfounded nonsense. Citing Wilson and Miller, therefore, are irrelevant because they have no bearing on our bad faith claims against USAA. Miller further bolsters our bad faith claims when it avers, “The relationship between the insurance statute and the more general unfair or deceptive trade practices statutes is that the latter provide a remedy in the nature of a private action for the former.” Miller’s appellate court supported his claims and concluded that he sufficiently alleged breach of good faith when liability was clear. Miller neither recognizes nor does not recognize a cause of action for third-party claimants, it merely validates first-party privity because he resided in the same household as the primary policyholders. Wilson itself admits that Miller was an action involving plaintiff-insureds who were in privity with the defendant-insurers, “plaintiff-insured which sued his own insurer for underinsured motorist coverage may claim relief for unfair trade practices” but Wilson went too far and announced a bald-face lie about third-party bad faith claim preclusion because Miller is silent about third-party bad faith claims and provides no guidance for such anywhere in its judgment. Wilson concluded that the plaintiff in its case was neither an insured nor in privity with the insurer, that much may be true, though the privity denial is tenuous, as will be explained infra. USAA also quotes from Wilson that “allowing such third-party suits against insurers would encourage unwarranted settlement demands, since plaintiffs would be able to threaten a claim for an alleged violation of N.C.G.S. § 58-63.15 in an attempt to extract a settlement offer.” Huh? How is this so? Isn’t trying to reach a settlement offer the point of being a claimant to an insurance policy? Breaching the violations listed in §58-63.15 is something wholly in the insurance company’s power and control to avoid, and USAA, against us, all by themselves without any threats from us for an unwarranted settlement demand, breached quite a few of them (e.g. R p 121-3). USAA’s recitation of this dubious reasoning that allowing third-party bad faith claims would encourage unwarranted settlement demands (R p 641) is not valid because bad faith is bad faith, and an unwarranted settlement demand by third-party claimants is irrelevant because it would be a matter for the courts to decide if that conduct existed, and the claim would thus be denied if it was found to be an unwarranted demand. USAA and Wilson attempt to remove a fundamental judicial duty from the purview of the courts. We could recite every violation that exists in the world of bad-faith conduct in order to have USAA pay us, but in the end the same thing would happen: the courts would decide if our settlement demands were warranted or not. USAA wants to prevent any and all bad faith claims against them no matter how egregiously and outrageously they conduct their commerce transactions. USAA wants to avoid responsibility and accountability for its bad faith and uses Wilson’s made-up, fictional anti-third-party bad faith claim case law as a convenient, yet unavailing, excuse to do so. Wilson goes on to defend why third-party claims are adverse to the insurance company, because “Allowing a third-party action because of a violation of N.C.G.S. § 58-63.15 would require the insurer to also act in the best interests of the party adverse to its insured.” Again, huh? Wilson made a radical leap in logic without connective tissue to get there. How is it not in the best interest of insureds to treat claimants with good faith and fair dealing by not violating N.C.G.S. § 58-63.15 in settlement negotiations with the claimant? Wilson says because the insurer has the duty to defend its insured this conflict exists. Except that it doesn’t in fact nor in the abstract because no matter how you flip this coin, be it first or third party, insurance companies owe all consumers who are party to a contract, including intended beneficiaries, good faith by abiding to the moral and ethical guidelines listed under N.C.G.S. § 58-63.15. Again, the insurance company is trying to find a reason not to treat claimants in good faith and fair dealing, which is antithetical to Chapter 75, which protects “any person,” for “any act” “affecting commerce” that “shall be injured.” Wilson describes the claimant as a third party but doesn’t offer a substantial reason why the claimant is excluded from making a successful bad-faith claim. Wilson instead declares, “We find no precedent in North Carolina law for allowing a third-party to sue the insurance company of another. N.C.G.S. § 58-63.15 does not specifically indicate that a third-party has such a private right of action and we will not imply such an action from its ambiguous language.” Except that they ignored the private right of action granted by Chapter 75, and they also conveniently ignored that the case law does not disallow a third-party to sue the insurance company for bad faith either. They offered no valid reason to forbid a third-party bad faith claim. Wilson also cites Pearce v. American Defender Life Ins. Co, 343 S.E.2d 174 (1986), that the NC Supreme Court “ruled that § 75-1.1 et. Seq. provides a right of action by an insured against his insurer for a violation of N.C.G.S. § 58-63.15” but doesn’t seem to grasp that the plaintiff, Mrs. Pearce, is the third-party beneficiary of a life insurance policy. The case’s holdings by the North Carolina Supreme Court reads in our favor in a number of ways, including support for our fraud claims against USAA, as well as unambiguously holding that “N.C.G.S. § 75-1.1 provides a remedy for unfair or deceptive trade practices in the insurance industry.” Pearce also held, “Even a truthful statement may be deceptive if it has the capacity or tendency to deceive…In determining whether a representation is deceptive, its effect on the average consumer is considered.” The majority in Pearce affirmed the validity of Mrs. Pearce’s third-party unfair trade practice claim because her evidence was sufficient.

ISSUE: DOES AN INSURANCE COMPANY OWE A DUTY OF GOOD FAITH AND FAIR DEALING TO THIRD-PARTY BENEFICIARIES? Of course it does. Moreover, treating a claimant fairly inherently treats the insured fairly. ISSUE: SHOULD WILSON’S ASSERTION THAT MILLER’S HOLDING DOES NOT RECOGNIZE A CAUSE OF ACTION FOR THIRD-PARTY CLAIMANTS AGAINST THE INSURANCE COMPANY OF AN ADVERSE PARTY BASED ON UNFAIR AND DECEPTIVE TRADE PRACTICES UNDER NCGS §75-1.1 BE OVERTURNED AS A MATTER OF LAW BECAUSE WILSON MADE UP THIS PROHIBITION OUT OF THIN AIR? Wilson’s conclusion on this point is wholly unsupported and absent by the cases they cite. Wilson’s decree not to cover third-party beneficiary bad faith results in absurd consequences that are antithetical to public policy and to the NCGA’s statutory intent of Chapter 75. Wilson, we submit, reeks of corruption as if it was a ruling paid by and made for insurance companies to prevent bad-faith claims and allow insurance companies to act in bad faith to claimants as often and as long as they please without penalty for such conduct. Wilson thus permits insurance companies the absolute control to wield bad-faith in commerce without merit, without limits, and without judicial oversight to third-party beneficiaries in privity with the insurance policy contract. Wilson allows an insurer to delay and deny third-party claims with virtual impunity, which is in direct conflict with the prescriptive provisions that the NCGA intended when they thoughtfully enacting Chapter 75 to protect consumers from bad faith conduct. USAA also cites the unpublished opinion, which is headed with the warning that it is not controlling legal authority and its citation is disfavored, of Woods v. Sentry Ins. A Mut. Co., 2008 N.C. App. LEXIS 1773 (N.C. Ct. App. 2008) (R 641), but Woods relies on Wilson and is thus an invalid argument for USAA’s reliance, supra. Woods also cites Murray v. Nationwide Mutual Ins. Co., 123 N.C. App. 1, 472, S.E.2d 358 (1996), disc. Review denied, 345 N.C. 344, 483 S.E.2d 173 (1997). But USAA’s reliance on Murray is also flawed. Murray notes, “People are insured because they wish to curb or eliminate risks to which they are exposed (or because law and public policy require it).” Murray then quotes Nationwide Mut. Ins. Co. v. Chantos, 293 N.C 431, 441,238 S.E.2d 597,604 (1977) “the Financial Responsibility Act…impose[s] liability upon an insurer as a matter of public policy.” Looking deeper into Chantos reveals, “G.S. 20-279.21(b), in part provides: Such owner’s policy of liability insurance: (2) Shall insure the person named therein and any other person, as insured, using such motor vehicle or motor vehicles with the express or implied permission of such named insured, or any other persons in lawful possession, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle.” The emphasis is ours to underscore that both Rhonda and Senior as driver and operator, respectively, are covered policyholders. Chantos continues, “Also pertinent to our decision is G.S. 20-179.21(f)…the liability of the insurance carrier with respect to the insurance required by this Article shall become absolute whenever injury or damage covered by said motor vehicle liability policy occurs…The victim’s rights against the insurer are not derived through the insured, as in the case of voluntary insurance. Such rights are statutory and become absolute upon the occurrence of injury or damage inflicted by the named insured, by one driving with his permission, or by one driving while in lawful possession of the named insured’s car, regardless of whether or not the nature or circumstances of the injury are covered by the contractual terms of the policy…McDonald’s right to recover against appellant became absolute upon the occurrence of the accident which caused injury and damage to him…Unlike conventional contracts or contracts implied in fact, contracts implied in law require no expression of assent or agreement by the parties. In Volume 1, Section 19, at page 46, of Corbin on Contracts, we find the following statement: A quasi contractual obligation is one that is created by the law for reasons of justice, without any expression of assent and sometimes even against a clear expression of dissent.” USAA’s liabilities were fixed by statute and operation of law, and thus Jeremy and Jenny have a right to the policy proceeds of both driver and owner because both are covered, both are liable, and despite USAA’s contention to the contrary, the case law continues to demonstrate that USAA also owes Jenny and Jeremy a duty of good faith and fair dealing. Returning to Murray, nowhere does it say that a judgment is first required in order to have a bad faith claim, but it acknowledged that the bad faith claim in Murray arose after the judgment, so bad faith can arise both before and after a judgment is Murray’s de facto conclusion for an intended third-party beneficiary, see its Lavender and Black’s citations infra because they explain that such parties are in privity. Murray’s distinction for judgment of prejudgment and postjudgment bad faith arises from the party’s contention about when the interest and unpaid costs are due from the bad faith damages, where in Murray they do not begin from the original occurrence, but after the judgment became final because that’s when the bad faith claims arose. In our case we allege that USAA’s bad faith arose from the date of the calamity, and consequently we seek interest as payable from the date of the calamity because that is when the payment of the policies became demandable, and the sum due from the policies is certain or capable of being reduced to certainty, or in the alternative if the court rejects our origination date of bad faith, when USAA sent their first “policy limits” offer January 19, 2013 (R p 243). Neither Chapter 75 nor N.C.G.S. § 58-63.15 require a judgment first in order to have a cause of action for bad faith. Murray said that a violation of N.C.G.S. § 58-63.15 is prescriptive and doesn’t constitute a cause of action in and of itself but it constitutes an unfair and deceptive trade practice in violation of the Chapter 75 as a matter of law, and the viability of plaintiff’s  §75-1.1 claim requires him to forecast evidence of each requisite element of an unfair and deceptive trade practice. USAA’s arguments lack merit with regard to the money we are owed separately by the driver’s liability and owner’s liability, and especially lack merit with regards to the invalidity of our bad faith claims against them. Not only did USAA fail to pay us the policy benefits due to us, USAA owes us damages for their unfair and deceptive trade practices against us. Murray went further, “Damages arise and flow from the event causing injury. Under our case law, an injury suffered may provide for both a cause of action sounding in common law (or as provided by statute), and simultaneously constitute conduct which is an unfair and deceptive trade practice…Plaintiff’s claims in the instant matter for unfair and deceptive trade practices (and for tortious breach of contract) have, at their heart, breaches of the insurance contracts obligating payment to plaintiff by defendants…the existing judgments…demonstrate damages for the delayed payment of interest due.” Here again it is not that a judgment is required before a bad faith claim can be had, just that a bad faith claim can be demonstrated after a judgment is issued. Then Murray emphasized, “We have previously held that an unfair or deceptive act in or affecting commerce in violation of NCGS § 75-1.1…will justify an award of damages under NCGS § 75-16 for injuries proximately caused…To recover, however, a plaintiff must have suffered actual injury as a approximate result of defendant’s [unfair or deceptive act]. Pearce v. American Defender Life Ins. Co., 316 N.C. at 471, 343, S.E.2d at 180.” Murray said that Wilson doesn’t apply to this case because, “The first reason for this conclusion is the existence of privity between the instant plaintiff and these defendants. One definition of privity is ‘a [d]erivative interest founded on, or growing out of, contract, connection, or bond of union between parties; mutuality of interest.’ Black’s Law Dictionary 1199 (6^th ed. 1990). Our case law establishes that ‘[i]f the third party is an intended beneficiary, the law implies privity of contract.” Then Murray cited Chantos, as we have already done so herein, and said, “The injured party in an automobile accident is an intended third-party beneficiary to the insurance contract between insurer and the tortfeasor/insured party. Lavender v. State Farm Mut. Auto. Ins. Co., 117 N.C. App. 135,136, 450 S.E.2d 34,35 (1994) disc. Review denied, 339 N.C. 613, 454 S.E.2d 253 (1995)…Therefore the instant plaintiff is in contractual privity with State Farm and U.S. Liability, and for this reason alone, is not bound by the third-party restrictions set forth in Wilson.” In Prince v. Wright, 141 N.C. App. 262, 268, 541, S.E.2d 191, 197 (2000) the court elaborates on Murray’s findings, “While a plaintiff generally cannot sue the insurance company of an adverse party under G.S. § 75-1.1, if the plaintiff achieves the status of an intended third-party beneficiary arising from the contractual relationship between the adverse party and the adverse party’s insurance company, the plaintiff may then bring a claim against the insurance company for violating the unfair and deceptive practices statute.” We made a solid prima facie case of USAA’s bad faith against us throughout our complaint and with our exhibits (R p 100-54, 243-322, 740-818) and also in the Record on pages 361-362, where Jenny testified at Rhonda’s sentencing, April 9, 2014, “Another aspect of our suffering has been dealing with the offender’s insurance company, which has violated a number of North Carolina state statutes. They offered Jeremy the policy limits of $30,000 while he was still inpatient and without asking how he was or what his injuries were. To provide you with some scope of this insult, Duke’s hospital bill was more than $250,000 for the first 2 and a half weeks of Jeremy’s care. One of Jeremy’s prosthetic legs cost around a hundred thousand dollars. His wheelchair is $15,000…The insurance companies [sic] furthermore refuse to acknowledge and process my attempts to make a claim on the policy as a bystander victim. Moreover, when I asked that all correspondence be in writing using my Walter Reed mailing address, their response was to ignore my claims, address Jeremy and stated that they called the hospital and were told that he wasn’t a patient there. What was their point? Dealing with them has been stressful, and we are dreading it because of how they’ve treated us so far.” Also, USAA attempted to omit their Memorandum in support of its Motions to Dismiss from the Record on Appeal because they said it “was not filed with the court but instead served on the Court and all parties of record.” But we objected to their request citing NCRCP 5(d)(7)(ii) and we assert now that this is the most recent example of USAA’s bad faith conduct against us (R p 859). In full we said in our email response, not in the record, “USAA’s Memorandum in support of its Motions to Dismiss shall be included in the record because it was part of the record in the trial court: it was submitted and served to the trial court and to all parties for consideration and is therefore proper to include under Rule 9, and it is necessary for an understanding of all issues presented on appeal. Furthermore, Rule 5 in the NC Rules of Procedure delineates that every brief or memorandum in support of or in opposition to a motion to dismiss shall be served on each of the parties, and Rule 5(d)(7)(ii) requires those papers to be filed with the court because they are in relation to a motion. Therefore, we object to your request for their exclusion because they are constituent of the Record, and we are unwilling to file them separately as a Rule 11(c) supplement. We object to your request to exclude this Memorandum in the record on appeal and are unwilling to remove this document.” Lastly with regards to Murray, it confirms that we have a valid action against USAA for punitive damages that as a matter of law may go forward to a jury, “Our Supreme Court has recognized that ‘[i]n every contract there is an implied covenant of good faith and fair dealing that neither party will do anything which injures the right of the other to receive the benefits of the agreement.’” Murray also cites Robinson v. N.C. Farm Bureau Insurance Company, 86 N.C. App 44, 356 S.E.2d 392 (1987) “this Court considered what evidence is sufficient to support a claim for tortious, bad faith refusal to settle a claim when the refusal to settle is also a breach of contract. The Robinson Court established a nonexclusive list of tortious conduct, which, if accompanied by a breach of contract, would qualify a claim for punitive damages. Broadly speaking aggravating conduct must accompany the tort, but that aggravating conduct may take many forms.” Robinson counters another one of USAA’s contentions that offering “policy limits” before our lawsuit was filed absolves them of liability (R p 644). “We do not believe an action for punitive damages from tortious conduct is precluded when the company eventually pays, if bad faith delay and aggravating conduct is present. An insurance company is expected to deal fairly and in good faith with its policyholders. The North Carolina General Assembly has acknowledged that principle by its adoption of N.C.G.S. § 58-54.4.” Robinson also says, “The evidence forecast by the plaintiff would be sufficient for the jury to infer that the defendant should have paid the full claim promptly because it had no basis upon which to deny it, that the refusal was in bad faith…But where, as here, the claimant forecasts evidence that the company’s delay has no good faith basis in fact and is accompanied by aggravated conduct, the claimant is entitled to take his case of punitive damages to the jury.” USAA also cites Craven v. Demidovich, 172 N.C. App. 340, 615 S.E.2d 722, review denied, 360 N.C 62, 623 S.E.2d 581 (2005), but the problem again is that it relies on Wilson, and also Murray and Lavender, so more problems arise because these reliances devolve due to dependence on Hall V. Harleysville (1951), which relies on Carolina Transp. V. American Alliance (1937), and these citations obviously have no grounding in the remedies available to parties in modern-day bad faith claims and protections provided in Chapter 75, so instead of clarity, the holdings in these cases cloud sound reasoning with obfuscation of irrelevant history, they lack the rationale and clout of Chapter 75, thus what we need from the Supreme Court of North Carolina is a modern ruling to definitively establish our rights to an action against USAA for their bad-faith conduct toward us, the intended third-party beneficiaries who have privity with USAA, proven supra along with the fact that the facts in our case don’t require a judicial determination of the insureds’ liability to us. But what’s really offensive and harmful to consumers and their beneficiaries is the abject injustice in rulings such as Craven that defiantly ignore the fact that Murray relies on Chantos which ultimately instructs that a third-party beneficiary has privity with the insurance company regardless of prejudgment for liability based on the Financial Responsibility Act, G.S. 20-279.21(b), G.S. 20-179.21(f), and Corbin on Contracts, and none of these insist on a reliance of a judgment before a third-party bad faith claim may be had, in addition to the fact that the plain reading of Chapter 75 also doesn’t require a judgment in order for a third-party beneficiary to make a bad-faith claim against the insurance company. Is a third-party insurance policy claim alleging the insurance company’s refusal to acknowledge and process a claim actionable under § 75? Does N.C.G.S. §75-2 give us a cause of action, a private right of action as a third-party beneficiary against USAA, “Any act, contract, or conspiracy in restraint of trade or commerce which violates the principles of the common law is hereby declared to be in violation of G.S. 75-1.”? (emphasis ours.) This statute explicitly declares that a bad faith claim isn’t reliant on the parties being in a contract with each other; thus, first- and third-party distinctions are moot. Are first- and third-party distinctions mooted by the statutory language of N.C.G.S. § 75-2? Wilson v. Wilson failed to consider this statute’s provisions for a cause of action in third-party beneficiary context. Does § 75-16 give us a cause of action, a private right of action as a third-party beneficiary against USAA, “If any person shall be injured…by reason of any act or thing done by any other person, firm or corporation in violation of the provisions of this Chapter, such person...so injured shall have a right of action on account of such injury done…if damages are assessed…treble the amount fixed by verdict” (emphasis ours.) Nothing here indicates that we as third-party beneficiaries can’t proceed with our bad faith claim against USAA. Do we have a Chapter 75 bad faith claim against USAA for the manner in which they handled our claims? Does Chapter 75’s statutory language require a judgment to be first held against a first-party contract holder before a bad faith claim may be asserted against the party whose conduct is bad faith against

§ 75-1.1 prohibits certain unfair or deceptive conduct. “A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. And a practice is deceptive if it has the capacity or tendency to deceive. Did USAA honestly negotiate the transaction of settling for the calamity fairly and without deception? Did USAA use actual deception in order to underpay our claims? Did USAA’s conduct constitute an unfair or deceptive trade practice? The basis for our claim was bad faith handling of our insurance claims. Justice Hudson dissenting in Bumpers v. Cmty. Bank of N. Va., 367 N.C. 81 (2013) about element of Reliance: we are compelled to have insurance, we don’t enter into the contract freely. Plain language of the statute doesn’t require reliance. Section 75-1.1(a) simply states, “Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.” N.C.G.S. §75-1.1(a) (2011). And Section 75-16, which gives force to Section 75-1.1, also contains no actual reliance language; it provides a right of action to anyone who is “injured.” Id. § 75-16 (2011). The NC Supreme Court has previously noted that the legislature’s statement of purpose when it enacted the statute was, “to declare, and to provide civil legal means to maintain, ethical standards of dealings between persons engaged in business and between persons engaged in business and the consuming public within this State to the end that good faith and fair dealing s between buyers and sellers at all level[s] of commerce be had in the State.” Bhatti v. Buckland, 328 N.C. 240, 245, 400 S.E.2d 440, 443 (1991)(alteration in original)(quoting  Threatt v. Hiers, 76 N.C. App. 521, 522, 333 S.E.2d 772, 773 (1985), disc. Rev. denied, 315 N.C. 397, 338 S.E.2d 887 (1986)). Further, section 75-16, which establishes a civil cause of action for violations of section 75-1.1, was enacted “to create a new, private cause of action for aggrieved consumers since traditional common law remedies were often deficient.” Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90,95, 331 S.E.2d 677, 680 (1985)(citations omitted). These are broad statutes meant to protect consumers from a wide range of unfair trade practices. There is nothing in these provisions to suggest that excessive pricing cannot giver rise to a cause of action under the statute. The Supreme Court of North Carolina has observed that “[w]hether a trade practice is unfair or deceptive usually depends upon the facts of each case and the impact the practice has in the marketplace.” Marshall v. Miller, 302, N.C. 539, 548, 276, S.E.2d 397, 403 (1981) (citation omitted). ISSUE: IS THE AVERAGE CONSUMER BEING ROBBED OF BYSTANDER AND NEGLIGENT ENTRUSTMENT BENEFITS? Justice Beasley in separate dissent of Bumpers said that the NCSC has established three elements that compose an unfair and deceptive practices claim: In order to establish a prima facie claim for unfair trade practices, a plaintiff must show: (1) [the] defendant committed an unfair or deceptive act or practice, (2) the action in question was in or affecting commerce, and (3) the act proximately caused injury to the plaintiff. A practice is unfair if it is unethical or unscrupulous, and it is deceptive if it has a tendency to deceive. Dalton v. Camp, 353 N.C. 647, 656, 548 S.E.2d 704, 711 (2011) (citations omitted). The NCSC has previously found that the purpose of section 75-1.1 is to “protect the consuming public.” Skinner v. E.F. Hutton & Co., Inc., 314 N.C. 267, 275, 333 S.E.2d 236, 241 (1995) (citation and quotation marks omitted). “We did not precisely define an unfair and deceptive practice claim as having three elements until 2000, after our decision in Pearce v. American Defender Life Insurance Co., 316 N.C. 461, 343 S.E.2d 174 (1986). See Gray v. N.C. Ins. Underwriting Ass’n 352 N.C. 61, 68, 529 S.E.2d 676, 681 (2000) (citing First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 252, 507 S.E.2d 56, 63 (1998), for the three-part test). In Pearce, “We stated, ‘Under the facts of this case, Mrs. Pearce must first demonstrate that Ms. Wynne’s letter had the capacity or tendency to deceive. Unlike a claim based upon fraud, proof of actual deception is not necessary.” Pearce, 316 N.C. at 470-71, 343 S.E.2d at 180 (citation omitted). With this context it is apparent that we were referring to the first element of whether the defendant committed a deceptive act or practice. We further declared, “But the second requisite to making out a claim under this statute is similar to the detrimental reliance requirement under a fraud claim. It must be shown that the plaintiff suffered actual injury as a proximate result of defendant’s deceptive statement or misrepresentation.” Id. At 471, 343 S.E.2d at 180. We referred to proximate cause as the “second requisite;” however, proximate cause is now considered the third element. See Gray, 352 N.C. at 68, 529 S.E. 2d at 681. Importantly, we did not say that actual reliance was required; we merely stated that actual reliance --- and element of a fraud claim --- was similar to the proximate cause element of an unfair and deceptive practice claim. Thus, actual deception and actual reliance refer to different elements of an unfair and deceptive practice claim. The Court of Appeals has held that actual deception is the equivalent of actual reliance and therefor has held that actual reliance is not required. See, e.g., Cullen v. Valley Forge Life Ins. Co., 161 N.C. App. 570, 580, 589 S.E.2d 423, 431 (2003). Our case law demonstrates that neither actual reliance nor actual deception is required for proximate cause. Generally, the crux of proximate cause is the foreseeability of an injury. E.g., Hart v. Curry, 238 N.C. 448, 449, 78 S.E.2d 170, 170 (1953). The tree-part test from Dalton, outlined above, does not include a requirement of detrimental reliance….Fraud is merely one way to prove an unfair and deceptive practice, but Pearce does not require actual reliance unless the plaintiff relies on fraud as part of his claim. “moreover, our Courts have clearly held that actual deception is not an element necessary under N.C. Gen. Stat. §75-1.1 to support an unfair or deceptive practices claim. Accordingly, actual reliance is not a factor.” (internal citations omitted), disc. Rev. denied sub nom. Santomassimo v. Valley Forge Life Ins. Co., 358 N.C. 377, 598 S.E. 2d 138 (2004). This Court has been consistent in condemning a practice as unfair and deceptive when it “offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” Marshall v. Miller, 302, N.C. 539, 548, 276, S.E.2d 397, 403 (1981); see also Dalton, 353 N.C. at 656, 548 S.E.2d at 711; Gray, 352 N.C. at 68, 529 S.E.2d at 681; Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 263, 266 S.E.2d 610, 621 (1980), disavowed in part on other grounds by Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 323 N.C. 559, 569, 374, S.E.2d 385, 391-92 (1988). Presumably, the General Assembly is aware of the elements of fraud, though not codified by statute, and has chosen not to include the element of actual reliance as part of the proximate cause requirement for an unfair and deceptive practice….Fraud is one example of the common law remedies that were ineffective in eradicating unfair and deceptive practices. Thus, proximate cause for an unfair and deceptive practice claim requires that a plaintiff prove that the defendant’s deceptive act could foreseeably cause injury, and in fact caused injury, if the plaintiff is not relying on fraud to prove an unfair and deceptive practice. OUR CLAIM IS BASED ON THE CONTENTION THAT USAA UNDERPAID US FOR BOTH OF THEIR POLICY HOLDERS AND REFUSED TO ACKNOWLEDGE AND PROCESS JENNY’S CLAIM, THEN DELAY, THEN VEXATIOUS LANGUAGE AS NOT TO PAY…etcetera §58. PLAINTIFFS CAN SHOW THAT USAA’S CONDUCT PROXIMATELY CAUSED OUR INJURIES: USAA’S DECEPTIVE ACTS COULD FORESEEABLY CAUSE A MONETARY LOSS AND IN FACT CAUSED A MONETARY LOSS BC WE HAVEN’T BEEN PAID YET. Beasley makes the point that most consumers likely enter into transactions that later turn out to be unfair and deceptive “freely and without any compulsion” but if doing so is now a defense to an unfair and deceptive practice claim, then the entire purpose of Chapter 75 and its corollaries elsewhere in the General Statutes is void. Is it fundamentally unfair for USAA to ignore valid claim attempts by valid beneficiaries on valid policies?

We insisted repeatedly for writing and to protect ourselves with everything on the record and USAA repeatedly ignored our requests for such, is this an example of USAA’s bad faith? Can USAA “cure” its bad faith by offering $60K 32 months after the calamity, after our complaint to the DOI, and USAA finally believed us that we were going to file a lawsuit as indicated in our June 2015 letter?

If it is cured, does tendering policy limits satisfy our full claim of damages for bad faith given that bad faith damages are not confined to the policy limits? A bad faith claim is to provide consumers with an extra contractual remedy…a tender of policy limits doesn’t satisfy our full claim of damages for a bad faith claim. Did USAA commit bad faith when it offered $30K to Jeremy only in January 2013 offer? Did USAA commit bad faith when it reasserted its $30K offer to Jeremy as the extent and total offer of settlement? Did USAA commit bad faith when it attempted to make both Jeremy “and spouse” to settle for $30K for permanently and wholly releasing Rhonda and Senior? Did USAA commit bad faith when it ignored Jenny’s first claim attempt in her November 2013 letter? Did USAA commit bad faith when it ignored Jenny’s second BI claim attempt in her November 25, 2013 letter? Did USAA commit bad faith when the June 2015 emails insisted that they didn’t ignore Jenny’s claim attempts? Is the underlying legislative purpose of bad faith to prevent improper settlement practices regardless of whether it is a first or third party claimant? In other words, do first- and third- party distinctions hold meaning when bringing a bad faith lawsuit for refusing to acknowledge and process claim, for denying benefits due, for delaying benefits due? Did USAA commit bad faith by “not attempting in good faith to effectuate prompt, fair, and equitable…etc §58 …..Does NC recognize a private cause of action for damages arising from an insurer’s violation of Ch. 75&58 for both whether the injured party is the insured or a third party claimant? Does NC give rise to a private right of action to an aggrieved beneficiary who is injured as a result of an unfair settlement practice to recover damages such that it acts as a deterrent against violations of the §58?

Can a third-party claimant alleging bad faith be awarded compensatory damages for annoyance and inconvenience, attorneys fees incurred in the underlying action and punitive damages even if they eventually offer pay the entire policy limits? Does annoyance and inconvenience suffered by intended beneficiary attributable to an insurer’s underlying settlement conduct constitute compensable injury in and of itself under §75 even if they settled in excess of policy limits? Can an insured recover compensation for annoyance and inconvenience suffered when an insurer breaches its common law duty to act in good faith? To hold otherwise would allow an insurer that knows it acted in bad faith to escape liability for our annoyance, inconvenience, attorney fees incurred by their failure to settle simply by tendering policy limits can excess verdict before the insured /beneficiary has the opportunity to bring suit? This would encourage insurance companies to ignore, deny, and delay everybody’s settlements because this conduct would then not hold them accountable for bad faith. Can a cause of action for insurance bad faith settlement arise even if there has been a settlement? USAA failed to compensate us adequately for the loss of Jeremy’s truck. Can we recover our increased costs and expenses resulting form USAA’s use of unfair business practices in the failure to settle fairly the underlying claim? Regardless of a settlement received or not received under the policy, can we proceed with our bad faith case against USAA under §75? Our complaint alleged a prima facie case of bad faith against USAA, and they then had the burden to prove that it attempted in good faith to negotiate a settlement where the opportunity to do so existed based on reasonable and substantial grounds, but they didn’t, is this a violation of conduct?

 Did USAA prove as a matter of law that it acted in good faith in settling our claims? Did USAA act with actual malice, meaning that USAA knew our claims were proper but nonetheless acted willfully, maliciously, and intentionally in failing to settle our claims? Evidence in the record they acted with actual malice. In North Carolina law, may a bad faith action exist separately from an action in contract? In North Carolina law, can a bad faith claim exist even in the absence of any violation of an insurance contract provision? USAA didn’t express reservations about the validity of jenny’s claim in response to her claim attempts; they had no reasonable ground for contesting the claim. Did they breach their duty of good faith to effectuate a settlement? Did USAA admit that Jenny was entitled to recover policy limits without proof or further statements because of their own investigation in July 2015, and if so, is this an instance of USAA’s admission or confession of bad faith? When USAA said that if Jenny made a bodily injury claim then they would ask her for more information in the June 2015 email, is this an instance of USAA’s admission or confession of its own bad faith because they didn’t ask her for more information after her first claim attempt 8 November 2013 or after her second claim attempt 25 November 2016 or after they received our letter June 2015? § 58-3-40 says that when a company requires written proof of loss after notice of such loss has been given by the beneficiary that the company shall furnish a blank to be used for that purpose and if not so furnished within 15 days after receipt of such notice the claimant shall be deemed to have complied with the requirements of the policy as to proof of loss covering the occurrence, character, and extent of the loss for which the claim is made. Did Jenny’s making the claim trigger the policy? Was USAA in bad faith when Jenny said we weren’t making a bodily injury claim until we spoke to an attorney, yet they initiated the claim anyway before we were ready to deal with them due to the level of catastrophic trauma suffered? After the owner’s policy is exhausted, assuming it is primary because insurance follows the vehicle, and assuming our damages exceed those limits, does the driver’s policy get triggered for excess coverage? Or is Rhonda’s insurance primary based on the NC Supreme Court’s ruling in Chantos, where he was the covered driver of the Williams’ policy, “Assuming that Chantos’ negligence proximately caused the damages and injuries to McDonald, he became the actual wrongdoer and was primarily liable. Nationwide’s statutory liability was passive and secondary.” In this case we are presuming that Senior’s liability is roughly akin to Nationwide as far as whose policy pays in which order. With Negligent Entrustment claims, does the owner of the vehicle have secondary liability to the liability of the driver of that vehicle who would be primary? USAA doesn’t define “accident” or “occurrence” in its policies although those terms are fundamental to interpretation, as such, is USAA in bad faith for not defining these terms because they provide a means for USAA to load the dice to deny payments to bona fide claimants? Is this a bad faith contract construction? Because the insurer prepares its own contracts, it has a duty to make the meaning clear, and not defining “accident” or “occurrence” is posturing on their part so as not to pay or to pay as few claims as possible. Is USAA’s policy an occurrence policy, or a claims made policy? USAA’s policy says it will pay BI for all liable policyholders, in this case both driver and owner are policyholders, so is USAA in bad faith for not separating them as discretely liable to both Jeremy and Jenny themselves with discrete bodily injury claims? USAA says it will pay for every liable policy holder, “We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury to which this insurance applies” Was it in bad faith when it refused to identify which policy holder it was covering? If it is covering the owner, whose liability hasn’t been established in court tort but it covered it because it is primary b/c it follows the vehicle, then they should have also covered Rhonda since she is the undisputed clear liability driver responsible and pleaded guilty to DWI, so was USAA in bad faith for tendering Senior’s limits but not Rhonda’s? WHAT DOES THE POLICY SAY ABOUT EXCESS LIABILITY COVERAGE? Trigger of coverage issues: are there two occurrences in negligent entrustment? This is a crucial issue in our case that the Trial Tribunal refused to address. But for each of their separate actions, the bodily injuries to plaintiffs wouldn’t have occurred. North Carolina law holds each party accountable. If the driver and owner weren’t married, or both didn’t have USAA, then we may have been paid policy proceeds long ago without issue. The driver and owner each separately committed tortious acts, Negligent Entrustment and DWI, and the consequences of those acts caused 2 bodily injury claimants. DWI is not an “accident” because it is an intentional act that should be excluded from coverage because it is against the policy goals of FRA. To determine the number of occurrences it should be defined in the policy, but USAA doesn’t do so. It doesn’t specifically mention DWI. North Carolina uses a cause-based test to determine the number of occurrences. There were two causes of our bodily injury, driver and owner. ISSUE: SHOULD OUR TRUCK CLAIM BEEN ENTIRELY COVERED BY OUR INSURANCE? See Addison Ins. Co., v. Fay, 905, N.E.2d 747, 754 (Ill 2009). Because the policy doesn’t define accident or occurrence, we can’t use their definition but must give ordinary meaning. We dispute that all of the harm and damage resulted by one single occurrence because it was the result of two different acts in two different times – if Senior didn’t allow the use of his vehicle, then Rhonda could have DWI’d in somebody else’s vehicle; she could have used his vehicle without DWI – these are separate causes of action in tort, thus they are separate liabilities for the purposes of automobile insurance policy coverage and triggering. Are the driver’ and owner’s insurance policies both primary and not excess? Is the vehicle’s owner’s insurance primary and the driver’s insurance secondary? Is Rhonda an excluded driver by way of intentional criminal DWI? USAA doubled our auto insurance premium for the six-month period following the calamity, we were damaged by making payment in reliance on the bill. Price gouging after calamity. When we called to ask why the rates doubled, we were given no answer, then rates went back down the next period, but no refund for the inflated rates, the premium was unlawfully excessive, and we cited the Appendix. ISSUE: DOES THE FINANCIAL RESPONSIBILITY ACT PAY FOR CONSEQUENCES OF ILLEGAL CONDUCT SUCH AS DWI, AND IF SO, IS IT UNCONSTITUTIONAL TO INSURE CRIMINAL CONDUCT? Covering DWI liability is unconstitutional because covering the consequences of criminals’ serious violent conduct doesn’t discourage DWI. FRA is a remedial statute to be liberally construed in order that the beneficial purpose intended by its enactment may be accomplished. Is it beneficial to cover DWI drivers’ consequences in light of compulsory insurance and victims’ funds? § 20-179.21 doesn’t define “accident” and nowhere does it say that intentional criminal acts shall be covered. Do State policy objectives forbid liability coverage for damages caused by intoxicated drivers because it would remove a set of consequences of serious and violent dangerous offenders who have no regard for the safety of our roads? DWI is illegal nationwide. “Drive” is commonly understood to require volitional movement of the vehicle, consistent and ordinary understanding of the term. Ten years after Ford built his first car in 1896, The first DWI law was enacted in New Jersey in 1906, “[n]o intoxicated person shall drive a motor vehicle” Violation of this provision was punishable by a fine up to $500 or a term up to 60 days in jail.” An Act Defining Motor Vehicles and Providing for the Registration of Same, 1906 N.J. Laws ch. 113, §§19,35, p. 177, 186 (April 12, 1906). On May 12, 2014, the National Transportation Safety Board recommended that all states lower the benchmark for determining when a driver is legally drunk to 0.05 – Drunk driving accounts for about 1/3 of all road deaths. Alcohol=injury rates go up, therefore DWI carries with it a presumption of intent to inflict injury: a reckless disregard for safety of others is a mens rea act. DWI is a mens rea act therefore policies and FRA should not morally provide coverage for the consequences of DWI otherwise it condones the conduct which is antithetical to the goals of society that is public safety and criminal justice for the offenders and their victims. Where pleadings allege and evidence proves a willful invasion or infringement of a right, courts presume nominal damages. Based on the facts and allegations in our complaint, that USAA, inter alia, engaged in willful, wanton, and reckless conduct, would Jenny be owed at least $1 for nominal or actual damages as a matter of law to vindicate the violation of her rights for USAA’s bad faith failure to acknowledge and process Jenny’s claim attempts if a jury were to return an award of $0 for Jenny’s bodily injury claim, and if so, does this establish the prerequisite liability proving that Jenny is entitled to seek punitive damages from USAA? Or stated another way, If a jury awarded Jenny $0 for her bodily injury claim, would a judge as a matter of law award at least $1? If so, then USAA is in bad faith right now and we don’t need a judgment to prove it because USAA proved it all by themselves. While courts often look for physical manifestations of emotional distress, neither physical injury nor the need for medical treatment is a necessary prerequisite to establishing severe emotional distress. Honaker v. Smith, 256 F. 3d 477 (7th Cir. 2001). In many cases the extreme and outrageous character of the defendant’s conduct is in itself important evidence of that distress. As well as the character of the traumatic scenario. Our record shows extreme emotional distress, including the testimony by friends and family at Rhonda’s sentencing in the form of written Victim Impact Statements, including Jenny and Jeremy (R p 378-426). Lunsford v. Mills, 367 N.C. 618 (2014): In a negligence action for an automobile accident involving multiple tortfeasors, benefits after one of the tortfeasors had tendered the limit of his liability coverage triggered other insurance coverage under §20-279.21(4). “[T]he FRA as a whole---should be ‘interpreted to provide the innocent victim with the fullest possible protection.” (citation omitted). ISSUE: IS USAA TRYING TO REWRITE THEIR POLICY BY DENYING THAT EACH OF THEIR TORTFEASORS IS COVERED SEPARATELY BY THEIR SEPARATE LIABILITY-CAUSING ACTS? ISSUE: DID USAA PLAY A GAME BECAUSE THEY DIDN’T TENDER (NOR PAY) POLICY LIMITS FOR TWO OF OUR FOUR CLAIMS UNTIL AFTER OUR NCDOI COMPLAINT WHEN THEY TENDERED $60K, THEY DENIED THAT DWI COULD BE AN EXCLUSION, THEY DENIED WE HAVE PRIVITY, THEY TESTIFIED AT THE HEARING THAT TENDERING POLICY LIMITS BEFORE THE LAWSUIT WAS FILED ABSOLVES THEM OF RESPONSIBILITY. DOES THIS GAME THEY PLAYED CONSTITUTE BAD FAITH TOWARD PLAINTIFFS AS A MATTER OF LAW? ISSUE: HAS USAA FULFILLED ITS OBLIGATION THAT THEY WOULD EVER HAVE TO US BY TENDERING THE BRYANT’S POLICY LIMITS? At the hearing USAA said, “before this lawsuit is filed, [USAA] agrees that Ms. Bruns might also have a claim independent of her husband…So, $60,000 has been tendered to the Bruns’ under the Bryant policy. [USAA] have fulfilled any obligation they would every have to the Bruns’ upon obtaining a judgment…which is exactly what’s – we tendered our limits before suit was filed…They only get the $60,000 worth of coverage and we’ve already tendered it.” Tendering a policy isn’t paying it, thus it doesn’t moot our claims to enforcing a contract, nor does it forbid us from bringing a suit independently for bad faith. We don’t have to have a judgment first to have a right to enforce the contract, and we don’t have to be third-party beneficiaries to have a judgment. Insurance contracts are not made solely for the protection of the first-party in the event they are exposed to liability, there are other purposes ingrained in insurance policies. “An unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case.” Campbell-Ewald Co. v. Gomez, 577 U.S. ___(2016) (pdf p. 2). We still have an actual controversies with USAA, inter alia, that they owe us $120 K and bad faith damages. “A case does not become moot as long as the parties have a concrete interest however small in the litigation’s outcome.” Id. USAA didn’t offer what a reasonable man thought he is owed. They initiated our bodily injury claim before we did and then offered $30K without talking to us or without proof of injury. Then when we tried to add Jenny’s discrete claim to the table, USAA refused to deal with her. USAA’s July 2015 final settlement offer of $30K for Jeremy and $30K for Jenny refused to specify from whom it was being offered, the driver and/or the owner. Does the average consumer know about bystander rights to make bodily injury claims? We didn’t for a very long time. USAA wasn’t forthcoming about it and we had to find out that right to benefits on our own. Then when Jenny tried to make the claim and assert her rights, USAA completely ignored Jenny. Their first letter responding to Jenny’s claim attempt, “I, Jenny Bruns, hereby submit a bodily injury claim on USAA policy #01422954907106 for pain and suffering, emotional distress, and los of consortium as a direct consequence from the calamity that occurred in my front yard (7116 Calamar Drive, Fayetteville, NC 28314) on November 10, 2012 where Rhonda Bryant catastrophically and permanently injured my husband, Jeremy Bruns. According to the police report, the policy number above belongs to vehicle owner Dalton Bryant Jr.” (emphasis ours) (R p 255). USAA responded, “Dear Jeremy” (R p 256). So Jenny sent the second letter, November 25, 2013, “I attempted to initiate a claim with you in a letter dated November 8, 2013, but clearly USAA did not read it because my claim was not acknowledged. I request that all correspondence regarding this claim process be in writing. Below is the text of that letter, repeated for your convenience.” (R p 257). The next correspondence we got from USAA was January 7, 2014, “Dear Jeremy” (R p 259). The next email from USAA was January 10, 1014, “Sergeant Major and Mrs. Bruns, I have been asked to reach out to you again regarding both your Bodily Injury and Diminution in Value claim with the adjuster handling the claim for the at fault party, Rhonda Bryant.” (emphasis ours) (R p 260). Next in March in the mail we received a third-party letter with a copy of Jenny’s November 25 letter, and it was scary because we thought it was identity theft going on. (R p 261). Next USAA sent a letter March 25, 2014, “Dear Jenny…this is regarding the claim for Jeremy Bruns.” (R p 265). We sent USAA an ultimatum letter June 11, 2015 with the subject line right after the executives’ salutation, “Re: Pre-Litigation Letter for Mala Fide Claims Handling with Catastrophic Injuries, Etcetera” and we explicitly laid out our case against them and our demands for both Jeremy and Jenny’s bodily injury against both of their policy holders, driver and owner. “refusals to communicate in writing, undervalued offers…she kept pressuring us to sign that she expected both Jeremy and Jenny (“and spouse”) to release both Rhonda and Dalton for 30K. Absurd! We sent letters to USAA in general, twice to send red flags of HELP to assert Jenny’s claim but to no avail…USAA has 21 days from the date of this letter to negotiate by mail and/or email and deliver a signed settlement cheque, or we will put this matter in the hands of jurors and judges after filing a complaint with the NC Department of Insurance.” (R p 266-8). On June 23, 2015 USAA said, “I did review your concern regarding Mrs. Bruns claim never being acknowledged. I reviewed her letter dated 11/8/13 and the adjuster responded…explaining the offer and what was being considered.” (R p 272). This is false because it was not a response to Jenny, but to Jeremy, supra. So we called them out June 24, 2015, “USAA has never addressed Jenny’s claim attempts. Offering 30K for the both of us is insulting, if that’s in fact what you did.” (R p 274). The response June 25, 2015 said, “USAA has addressed Jenny Bruns’ loss of consortium claim…I understand a $30,000 offer is not acceptable to you; however this is the maximum available limit under the Bryant’s (sic) policy.” (R p 275). Jenny made a bodily injury claim, not a loss of consortium claim, and still it remains that the letter was not addressed to Jenny. Also on June 25, 2015, USAA sent this email, “correspondence dated November 8, 2013 from you indicated the intent to file a claim for loss of consortium (by Jenny Bruns)…The limits available remain what they are: $30,000.” (R p 279-280). Again this is false because they didn’t address Jenny her bodily injury claim. So we called them out again, “Jenny explicitly attempted to assert her valid, direct, independent, and separate bodily injury claim – not a consequential injury or a derivative loss of consortium claim from Jeremy’s claim – which USAA refused to acknowledge and continues to do so. We suggest that you carefully reread Jenny’s November 8, 2013 and November 25, 2013 certified letters and their respective certified responses, [at the time we assumed the January 7, 2014 letter was a response to the November 25 letter], which both refused to address Jenny by name and her separate, independent, and direct bodily injury claim attempts that are compensable under the per occurrence limits. Jenny was a separate victim as a bystander in close proximity to the calamity and contemporaneously perceived it. Furthermore, USAA continues to ignore the fact that we have valid claims against both Bryants’ policies: Rhonda as the driver and Dalton as the owner. The truck damages have also not been fully compensated, which was a first party subrogated claim.” (R p 281-2). Their response June 26, 2015 said, “If Jenny asserts that she was a separate victim as a bystander in close proximity to the calamity, and contemporaneously perceived it, we would request from her a narrative or statement regarding her location and what she observed.” (R p 283). Here USAA admits they were in bad faith with Jenny’s first two November 2013 claim attempt letters because they didn’t acknowledge Jenny, nor did they ask for more information. It took hundreds of hours of research to put together the words in R p 281 as it is not common or ordinary parlance used when making a simple bodily injury claim. Also note that they ignored the November 25, 2013 claim attempt letter and their lack of acknowledgment of it. So we knew USAA were devils, and we wanted to find out whose policy they were offering, Rhonda’s or Senior’s (R p 287). The answer was, “The policy is for both Rhonda and Dalton Bryant, as they are husband and wife. They do not have two separate policies.” (R p 288). So we filed our complaint with the NCDOI because USAA failed to settle with us. Our complaint included failure to acknowledge claims, more than doubling our insurance premiums the term after the calamity, the truck issues, and 11 claims of bad faith from §58-63-15(11): a, b, c, d, e, f, g, h, k, m, and n. (R p 289-90). USAA responded to the NCDOI and they provided us with a copy of their response (R p 291-295) where USAA made it clear the $30K offer was only for Jeremy’s injuries after they investigated, and we disputed in our complaint their justification for the premium increase was unlawful per Appendix 3 where the increase is 80% for what USAA is claiming is the basis for the increase (R p 118 and 498). USAA never explained this to us despite repeated requests, they only put it in the letter to NCDOI. Then USAA told another falsehood, “As far as Mrs. Bruns request for a bystander bodily injury claim, it is clear the adjuster originally thought she was pursuing a derivative claim of Mr. Bruns’s bodily injury claim…However after additional investigation of the loss, including securing a copy of a news story, Claims Management agreed to extend an offer to Mrs. Bruns for the $30,000 policy limit.” (R p 294). Here again they fail to answer why if there was confusion it wasn’t solved by the second letter sent November 25, 2013 to ensure there was no confusion – USAA never admits to this second letter, which demonstrates that USAA never intended to pay Jenny’s bodily injury claims (R p 113,131, 133, 134, 143, 146, 166, 173). They never admit to their failure to acknowledge Jenny’s bodily injury claim attempts, even with the June 2015 letter, why didn’t they do research and try to settle before forcing us to file a complaint with the NCDOI? They also completely ignore the Negligent Entrustment issue. USAA sent Jenny a policy limits offer of $30K on July 17, 2015, without proof or additional statements from Jenny. USAA said, “Based on additional documentation gathered by us regarding the accident, we believe we are in a position to make an offer of the remaining bodily injury policy limits to you in settlement of your separate and independent claim, As you know, the policy limits available under this policy are $30,000 per person, $60,000 per accident (total). We are, therefore, tendering the remaining limits of $30,000.” (R p 300). Unacceptable. By this point we knew that we were entitled to policy limits from both the driver and the owner and USAA wouldn’t budge. So we were forced to try to find a lawyer, unsuccessfully, and we were then forced to file this lawsuit pro se in order to get the policy benefits we are owed, our bad faith claims against USAA, etcetera. The average consumer would not fight as hard as we’ve had to fight. USAA are devils who avoid paying beneficiaries what they are owed and what their policyholders are liable for. USAA didn’t make any “honest mistakes” because their bad faith toward us was intentional, malicious, unwarranted, and outrageous. Their conduct involved repeated and asserted acts of indifference, reckless disregard, and intentional violation of our economic harm. The harm was the result of intentional malice, trickery, and deceit. USAA tried to trick us to accept less than fair benefits owed to us because of our vulnerability and because they knew the Bryants were judgment proof. ISSUE: IS JENNY AUTONOMOUS? USAA doesn’t think so because they say that they responded to Jenny’s first claim attempt, yet nowhere in their correspondence it say, “Dear Jenny we recognize your claim. They want to lump Jeremy and Jenny together as one, like they are trying to lump Rhonda and Senior as one. ISSUE: DID USAA IGNORE JENNY’S CLAIM ATTEMPTS AND BREACH THE CONTRACT IN A FIRST-PARTY CONTEXT? ISSUE: DID USAA IGNORE JENNY’S CLAIM ATTEMPTS AND BREACH THE CONTRACT IN A THIRD-PARTY CONTEXT? ISSUE: DID USAA BREACH GOOD FAITH AND FAIR DEALING TO JENNY? ISSUE: WAS USAA’S REPRESENTATION THAT IT ACKNOWLEDGED JENNY’S CLAIM ATTEMPTS FALSE AND MISLEADING? ISSUE: DID THE TRIAL TRIBUNAL VIOLATE EQUAL TREATMENT UNDER THE LAW BY NOT RECOGNIZING JENNY’S AUTONOMY BY DISMISSING USAA AND IGNORING THE FACT THAT THEY REFUSED TO ACKNOWLEGE AND PROCESS HER CLAIM ATTEMPTS AND LIED ABOUT IT IN OFFICIAL DOCUMENTS? Fraud and deceit includes any misrepresentation by word, conduct, or in any manner of material fact, either present or past, and any omission to disclose such fact. We sought the Court’s help to enforce the duties and liabilities created by state law in providing us relief for USAA’s breaches. Misrepresentation from a debtor to a creditor is a necessary element of “actual fraud” and USAA made false representation that $30K was the policy limits available for both Jeremy and Jenny from both Rhonda and Senior. USAA persisted with this position after both of Jenny’s claim attempt letters in November 2013 and in our June 2015 letter and series of emails. ISSUE: DID USAA BREACH GOOD FAITH AND FAIR DEALING TO JEREMY? ISSUE: DID USAA’S CONDUCT CONSTITUTE FRAUD TO PLAINTIFFS IN THE FIRST PARTY CONTEXT? ISSUE: DID USAA’S CONDCT CONSTITUTE FRAUD TO PLAINTIFFS IN THE THIRD PARTY CONTEXT? ISSUE: DO FIRST-PARTY AND THIRD-PARTY DISTINCTIONS MATTER WHEN PLAINTIFFS ARE THE INTENDED BENEFICIARIES BECAUSE PRIVITY IS ENCOMPASSED EITHER WAY? ISSUE: DID USAA COMMIT BAD FAITH WHEN THEY REFUSED TO DECLARE WHOSE POLICY THEY WERE OFFERING POLICY LIMITS? (R p 288) ISSUE: DID THE TRIAL TRIBUNAL ERR BY NOT ESTABLISHING OUR RIGHTS AND STATUS ON THIS ISSUE AND DOES IT DEMONSTRATE THAT THE COURT HAD HOSTILITY, DISREGARD, AND DISRESPECT TOWARD PLAINTIFFS? Not declaring our rights deprives us of equal protection. Insurance companies are entitled to know their rights and status, and we alleged our Insurance Company, USAA, abdicated its first and third party duties to us in bad faith. The Court has authority and duty under Article 26 (R p 8).

ISSUE: IS REFUSAL TO ACKNOWLEDGE AND PROCESS A CLAIM BLACK LETTER CONTRACT LAW REGARDLESS OF FIRST- OR THIRD-PARTY STATUS? USAA didn’t fulfill the policy contract giving proceeds due to plaintiffs as beneficiaries. ISSUE: WERE USAA’S TACTICS SUCH THAT THE LEAST SOPHISTICATED CONSUMER WOULD HAVE SETTLED OUR 4 CLAIMS FOR $30 UNKNOWN TO THEM THAT THEY HAD FOUR CLAIMS AVAILABLE BY LAW? ISSUE: DID USAA LOOK TO FIND WAYS NOT TO PAY INSTEAD OF LOOKING TO SEE HOW WE WERE ENTITLED TO PROCEEDS?

ISSUE: IF JENNY AND JEREMY ARE EACH AUTONOMOUS AND EACH CAN INVOKE SEPARATE BODILY INJURY CLAIMS, THEN EACH CAN INVOKE SEPARATE LOSS OF CONSORTIUM CLAIMS IN TORT? The holding law needs to be overturned because it allows only one recovery per couple even in cases of two separate bodily injury claims with two separate loss of consortium issues and timelines for such. One marriage is irrelevant in law. Is this a constitutional issue of autonomy and rights of individual personhood equal protection under law? Marital status discrimination. We are not each other’s property, we are autonomous, equal protection.

ISSUE: CAN JEREMY AND JENNY RECOVER COMMENSURATE ATTORNEY FEES FOR THEIR PRO SE WORK? Sometimes we work 24 hours a day trying to keep up, embattled with periods of trauma, exhaustion, depression, numbness, fear, mixed with the real life stuff of permanent catastrophic injury, retirement, moving, inability to buy a suitable house that accommodates our needs and disabilities. We don’t have an attorney because this is a principle-based battle, so when there is no money as a prize, no lawyer is incentivized to help us fight for justice. Also, Bad Faith is notoriously impossible in North Carolina because the best lawyers in North Carolina said so, “It’s chasing a rabbit down a hole that can’t be caught.” By the time we researched and gave USAA one last chance to do us right, a dozen lawyers said that it was too close to the Statute of Limitations to be able to take our case. We thought USAA would have settled based on the language in our June 2015 letter (R p 266-68). There is precedent for pro se being able to recover attorney fees in certain cases, ours would qualify, the citation is buried deep in our piles of papers at the moment…

ISSUE: ARE CONVICTED DWI OFFENDERS TREATED EQUAL BEFORE THE LAW? Some DWI offenders are above the law and given arbitrary impunity. This is double victimization for DWI victims because there is no true justice or punishment meted to mollify the pain and trauma, plus it becomes an issue of public danger. Neither Rhonda nor the State have empathy because neither grasp the impact of their conduct on DWI victims.

ISSUE: DOES RHONDA’S UNJUSTIFIED SENTENCE TRUNCATION FULFILL POLICY THE GOALS OF THE JUSTICE SYSTEM AND INCARCERATION? The Governor repudiates DWI code of law and dismantles the moral order of justice. Rhonda’s abridged punishment is the taint of injustice by the Governor’s conduct and is not equal protection to law abiders. Punishment administered justly pays heed to the importance of maintaining and restoring relationships in society characterized by justice, mutual respect, and full participation in community life --- punishment should acknowledge the place of the victim and demand reparation by wrongdoers.

ISSUE: IS § 20-141.4(a3) IS A “CONSEQUENCE SENSITIVE” FORM OF DWI? Pretending that this statute isn’t a DWI doesn’t benefit crime prevention strategies. It offends the judicial process and harms social justice. The State characterizes this conviction divorcing both driving and intoxication from the statute. The vehicle didn’t drive itself – it was an instrument of harm in motion caused by a volitional intoxicated operator. It is a driving statute because it is Chapter 20, which comprises driving statutes. It is a driving statute because Rhonda’s license is suspended 4 years because of her conviction, and this suspension is a Chapter 20 statute §20-19(d). Misdemeanor DWI becomes Felony DWI when bodily injury occurs.

ISSUE: HOW DO WE GET COMPLETE AND ACCURATE CERTIFIED STATEWIDE RECORDS FOR ONE PERSON? How do we get a refund for the three incomplete and inaccurate records that we paid for? We paid for a service that was breached, do we have redress? The right to justice includes the right to truth, and the state impedes it with the lack of reasonable access to certified statewide criminal background checks and inaccurate and incomplete records.

ISSUE: DO WE HAVE A RIGHT TO COMPENSATION FOR THE GOVERNOR AND ATTORNEY GENERAL’S PERSISTENT UNLAWFUL POSITION THAT CAUSED US SEVERE EMOTIONAL DISTRESS AND FORCED US TO FIGHT THEM IN THE COURTS?

 ISSUE: IS THE PUBLIC DUTY DOCTRINE A BARRIER TO LAWSUITS CAUSED DIRECTLY BY THE AGENCY ITSELF? The executive caused us harm directly by illegally releasing the offender early against law and policy, so do we have a case against the governor for liability for intentional torts for his failure to comply with mandatory, ministerial requirements? Smith v. Jackson County Bd. Of Educ., 168 N.C. App. 452 (2005).

ISSUE: IS THERE IMMUNITY FOR OFFICIAL FOR ACTIONS TAKEN WITHIN THE SCOPE OF THEIR DUTIES WHEN THE ACTIONS ARE MALICIOUS OR CORRUPT? Epps v. Duke Univ., 122 N.C. App. 198 (1996)

ISSUE: DOES THE VIOLATION OF A PROCEDURAL RIGHT, IN THIS CASE PREMATURELY RELEASING RHONDA AGAINST OUR OBJECTIONS GROUNDED IN LAW AND CONSTITUTIONAL RIGHTS, SUFFICIENT TO CONSTITUTE AN INJURY IN FACT TO PLAINTIFFS?

 ISSUE: DO THE EQUAL PROTECTION AND DUE PROCESS CLAUSES PROTECT PEOPLE’S RIGHTS TO ACCURATE AND ACCESSIBLE CRIMINAL RECORDS? How can society have equal protection under law with inaccurate and incomplete records? Law abiding citizens’ due process rights are violated because criminals aren’t being held accountable.

ISSUE: ARE INACCURATE AND INCOMPLETE CRIMINAL RECORDS A FIRST AMENDMENT VIOLATION? “A presumption of openness inheres in the very nature of a criminal trial under our system of justice.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980). Also see 4^th circuit Stone, 855 F 2s at 180 for First Amendment common law right to access of judicial records.

ISSUE: ARE INACCURATE AND INCOMPLETE CRIMINAL RECORDS A VIOLATION OF 5 U.S. CODE §552?

ISSUE: ARE INACCURATE AND INCOMPLET CRIMINAL RECORDS A VIOLATION OF N.C.G.S. 7A-109?

ISSUE: DO DUE PROCESS RIGHTS IMPLY THAT LAWFULLY CONVICTED OFFENDERS SHALL SERVE THE MINIMUM OF THEIR PRESCRIBED SENTENCES? This is unprecedented conduct. What does analysis require? The foils of due process? If due process is in part to protect against unlawful incarceration, then it stands to reason that it also protects lawful incarceration. We couldn’t find a single case or law anywhere in the country where a citizen had to assert and sue the state for this constitutional violation because it is foundational, intrinsic to our criminal justice system that no other government thought otherwise – it is simply not a right that requires enumeration. There is no law for it because it is intrinsic to the Constitution and common understanding of the underpinnings of law and justice. There’s no such thing as a law for it because it is an inviolable principle, and we are struggling to understand how the State can be so cruel and why they are forcing us to fight for rights that we shouldn’t have to be fighting for. The State is arbitrarily torturing us and putting us through more trauma. Moreover, the only historical evidence of governments mistakenly releasing prisoners from incarceration is news stories that underscore the remedy is an immediate order to hunt them down to serve the rest of their debts owed to society. For example, when Washington state accidentally let thousands of inmates out early last year because of computer coding issues, it prompted investigations and outrage because the Department of Corrections learned about the issue years prior but didn’t fix it, “These were serious errors with serious implications,” said Gov. Jay Inslee when he announced the situation to the public. “A state senator said it wasn’t a computer but a people mistake. Police had to work to recapture all the illegally early released convicts – it wasn’t a question because it was the moral and legal course of action. Other cases where inmates were released inadvertently, such as LA, they hunt the criminals down when they realize their mistake. In this Washington case, relatives of a victim’s family in 2012 “ran their own numbers and thought the inmate was being released too early…and an official request for a fix was submitted, noting that the issue needed to be fixed ‘ASAP’…This problem was also brought to the attention of the state attorney general’s office. In December 2011, an assistant attorney general called the issue ‘not so urgent’…but the current state Attorney General said that statement “was deeply flawed and failed to emphasize the urgency of addressing this critical issue.” “For three years, state Department of Corrections staff knew a software-coding error was miscalculating prison sentences and allowing inmates to be released early…The problems stemmed from “good time” credits applied to certain prison sentences…When I learned of this I ordered DOC to fix this, fix it fast, and fix it right….Obviously, any early release of an inmate from prison to the community is a serious public safety issue and I share the concerns of the Governor, DOC Secretary Pacholke, victims groups and other important law enforcement stakeholders…Pacholke said the DOC welcomed the investigation into the lapse and ‘the agency should be held accountable for this breach…I want to offer that same apology to the public.. it’s an unforgivable error’…‘for someone who has been affected by this, they may feel that justice hasn’t been served…it also could manifest in crime victims not trusting the system.’” . In Nebraska, DOC used a flawed formula wrongfully truncating inmate sentences, “We’re in triage mode…Public safety is paramount. Correcting the record is paramount…Judges’ sentences were undermined…Policymakers’ goal of parole supervision for offenders was thwarted…the results left Corrections officials scrambling, and authorities slack-jawed…’unbelievable,’ Douglas County District Judge Peter Batallion said. ‘When I decide my sentence, I assume it’s going to be carried out correctly by the penitentiary.’…‘What in the hell is the state doing?’” “It’s not uncommon for jail officials to mistakenly let inmates go early. This has occurred at least 23 times from 2009 to 2013, records show. The majority of the inmates mistakenly let go were rearrested within days.” “Man becomes model citizen after being accidentally released from prison 88 years early, now he must go back.” “After receiving notice from the D.C. Superior Court to release an individual, the DOC did so, only to subsequently be informed by the court that they had made an error, and accordingly, the DOC is in the process of bringing the individual back into custody.” N.C. G.S. §148-4 The Secretary of Public Safety shall have control and custody of all prisoners serving sentence in the State prison system, and such prisoners shall be subject to all the rules and regulations legally adopted for the government thereof. Any sentence to imprisonment in any unit of the State prison system…shall be construed as a commitment, for such terms of imprisonment as the court may direct…where sentences of all such persons shall be served. N.C.G.S. § 148-4.1. Release of inmates. (h) A person sentenced under Article 81B of Chapter 15A of the General Statutes shall not be released pursuant to this section. N.C.G.S. §15A-1340.12. The primary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused…to protect the public by restraining offenders to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminal behavior.

“The Due Process Clause does not permit a State to classify arbitrariness as a virtue. Indeed, the point of due process – of the law in general – is to allow citizens to order their behavior. A state can have no legitimate interest in deliberately making the law so arbitrary that citizens will be unable to avoid punishment based solely upon bias or whim.” (qtd. in State Farm Mut. Automobile Ins. Co. V. Campbell, 538 U.S. 408 (2003)). Notions of fairness are enshrined in the Constitution. Protections against unfair removal of life and liberty imply fairness of just incarceration.

Why wasn’t the AG or Trial Tribunal outraged about incomplete and inaccurate records? Or the fact that the State expressly discounted Rhonda’s conviction as DWI? The answer naturally points to corruption, not incompetence because we clearly pointed out the law, which explicitly defines Rhonda’s conviction as a DWI. They don’t bring attention to these violations, nor do they admit these are violations of policy. Judges and probation officials across the entire country agree that those on probation for DWI have the highest risk to reoffend and endanger the public, and NC is allowing them free despite complaints and evidence proving they should be held accountable. We can’t trust our government because the violations aren’t being properly monitored. The state allows Junior to enjoy the privilege of probation because the State does nothing. Why bother? Our research has established that the State is protecting Junior and Rhonda for some unknown reason. They are both a danger to the public. Inaccurate records led to less insurance coverage – led to Rhonda staying on the roads unaccountable with a sense of invincibility above the law. Why are these criminals given so many free passes from accountability?

Rhonda’s DWI maiming of Jeremy was illegally, unofficially, but de facto exonerated by the state and by the Trial Tribunal.

ISSUE: Are defendants in cahoots rather than mere cohorts? The parties bonded together against us instead of intervening where appropriate for truth and justice and candor that is required in the Court.

When justice is so powerfully squelched by the State, USAA, and the Trial Tribunal, it’s easy to see why people shy from the courts in North Carolina – because it’s futile and painful to obtain justice against these corrupt players who “rule the school” and put victims on the losing side of justice no matter how merited or righteous their positions are. One friend in Cumberland County worked security and he had to be in court every week for a decade, he said the lawyers and judges steamroll pro se. Period. No justice for pro se. He said the judges would only talk to lawyers. They are a tightknit group, closed to outsiders. Was our access to justice blocked?

For the State and the Trial Tribunal to in effect deny Rhonda’s conviction as a DWI as a basis to truncate her sentence is puzzling. Is this for the benefit of the insurance industry? Or is it to cover up the fact that NC isn’t complying with federal regulations of DWI enforcement in order to receive federal highway funding? Or is it because the Bryants are above the law because they are connected to someone in a powerful official position?

Denying that Rhonda’s conviction is a DWI does not define government conduct performed for the public good, no, it is the antithesis: it is unconstitutional conduct that harms the public. Intentional disregard of the law, harming Jeremy and Jenny as direct victims, hurting all DWI victims, and harming the entire public. Their position is immoral.

Ninth Amendment – citizens cannot expect fair criminal prosecution without accurate and complete maintenance and administration of criminal records. – not fair to all citizens for Rhonda and Junior to be above the law. The erasure and disappearance of their records by the State violates our Constitutional rights of liberty, and our liberty involves protection and safety from criminal offenders, or at least that we can know who they are and protect ourselves from them. This is not equal protection under the law. It harms us because it weakens our civil case and may limit our damages against them if we are prevented from showing the jury the degree of criminal menace to us personally and to society generally that we allege of these two defendants. Not to do so is unofficial and unjustified exonerating criminal conduct. An arrest record may be used by the police in determining whether subsequently to arrest an individual concerned or whether to exercise their discretion to bring formal charges against an individual already arrested. Arrest records have been used in deciding whether to allow a defendant to present his story without impeachment by prior convictions, and as a basis for denying release prior to trial or an appeal, and they may be considered by a judge in determining the sentence to be given to a convicted offender – without accurate and complete records, the effect is that equal protection under law and fair due process proceedings are impossible because they are prevented by the absence of the true record.

Overlooking Junior’s probation violations of testing positive at least a couple of times for cocaine comes with no penalty, so why bother testing or even having probation if it’s not meaningful? Coke dissipates in the system quickly, so the multiple testing violations demonstrates that he is a chronic user while on probation. Maybe those records are also erased. NC totally tolerates probation violations and the message is this: let Junior do whatever he wants without accountability because we are protecting this menace so that he may remain free in society to wreak all the havoc he wants to – this necessarily truncates everybody’s right to liberty because we will be too afraid to leave the house due to safety fears – we aren’t afforded positive enjoyment of social rights and privileges. Systemic, blatant, sheltering, above-the-law treatment thereby giving unjust liberty to criminals is a violation of our Ninth Amendment rights because it violates equal protection and due process. Cumberland County made a deal with this devil and they are protecting him no matter what criminal violations he commits. Egregious violations by probationers puts the public at risk when they aren’t reported to the courts, repeatedly testing positive for drugs qualifies. Is it policy of North Carolina to report probation violations? Neighbors know and report to us Junior and Rhonda and their continued criminal conduct and are afraid of them. They Willfully fail to comply with law.

The Trial Tribunal did not and would not elaborate on any findings of fact. All we have from which to “narrow” our petition to this Court are generalized, vague, and erroneous conclusions of law based on the Trial Tribunal’s reasoning granted upon Rule 12(b) dismissals, including the improper invocation of Sovereign Immunity from the State, improper interpretation of insurance contracts, incorrect interpretation of statutes, and apparently discounting circumstantial evidence as valid and/or substantial evidence. We were prevented from obtaining relevant and supportive evidence (and obtaining commensurate subpoenas) that is in the defendants’ exclusive possession due to the Trial Tribunal’s dismissal orders. We also allege that the Trial Tribunal abused its exercise of discretion because its decisions fail to reflect reasoned decision making to the degree that its ethical violations and clear errors of failing to apply the law correctly expose its blatant disregard for meeting the ends of justice, were manifestly unfair, thus we are left with no faith in the Trial Tribunal’s authority, impartiality, and competence.

We couldn’t obtain counsel in part because obtaining a Bad Faith judgment in North Carolina is “impossible” according to the top Bad Faith attorneys in the State. In other words, the State has bad faith laws to protect consumers who are victims of bad faith, but victims of bad faith can’t faithfully access the bad faith statutes for redress. Justice against insurance companies in North Carolina is also widely known as impossible because the courts are filled with former insurance company attorneys and the perception of corruption is deeply rooted and ingrained.

No lawyer because no money – principle based claims – we have been operating on the assumption that Rhonda and senior are judgment proof.

Everyone who knows about our case has given up hope that Justice can be obtained in North Carolina: all faith has been destroyed in everybody’s minds and hearts, except for Jenny, who holds a gossamer of hope that our grievances will be redressed when the right judge is persuaded by our amateur presentation of fundamental constitutional ideals of fairness and equality for public welfare.

The state fighting us, USAA fighting us, the Trial Tribunal denying us of justice is continued torture on our mental health, severe emotional distress because, inter alia, we don’t have an attorney.

It is bewildering and difficult to reason upon why the State and Trial Tribunal would ignore a proposition so manifest as this: lawfully convicted criminals must serve their minimum sentences as mandated by law and policy. Its correctness is evident upon its bare announcement. The Trial Tribunal’s judgment cannot be permitted to stand. Violation of the most basic and customary precepts of both common and constitutional law. No one disputes the validity of the sentence that Rhonda was ordered to serve.

If DWI offenders are not eligible to reduce their sentence with Earned Time, then ipso facto Rhonda was not eligible for the credit and she owes the State 4 months.

§ 7A-109.4. Records of offenses involving impaired driving. The clerk of superior court shall maintain all records relating to an offense involving impaired driving as defined in G.S. 20-4.01(24a) for a minimum of 10 years from the date of conviction. Prior to destroying the record, the clerk shall record the name of the defendant, the judge, the prosecutor, and the attorney or whether there was a waiver of attorney, the alcohol concentration or the fact of refusal, the sentence imposed, and whether the case was appealed to superior court and its disposition. (2006-253, s. 24.) At least one of Rhonda’s prior DUI charges in the State are missing from her record.

ISSUE: IS IT MALPRACTICE FOR THE ATTORNEYS AND TRIAL TRIBUNAL JUDGE TO MAINTAIN AN UNLAWFUL STANCE REGARDING THE ESSENCE OF RHONDA’S CONVICTION KNOWING IT IS THEIR DUTY NOT TO ALLOW THIS SORT OF INJUSTICE TO BE CONDONED BUT THEY PROMULGATE IT DESPITE EVIDENCE AND LAW TO THE CONTRARY? This conduct is substantially harmful to justice, the courts, AND the legal profession. It is amoral and unethical. All of our adversaries deny this is a DWI, which affects our status, rights, and ability for redress with all of the parties, this is an actual controversy between us. The legislature enacted the The Motor Vehicle Driver Protection Act of 2006 to, inter alia, prevent, deter, and punish DWI offenders. To that end, convictions are a felony, and Rhonda was sentenced to greater than a year in prison and a 4-year driver’s license suspension N.C.G.S. § 20-19(d) for that conviction. The fact that her sentence is greater than a year is special because in law it connotes that the crime is serious and violent. Rhonda pled guilty. Yet these parties deny it. We are banging our heads against the wall at this manifest injustice.

ISSUE: ARE THE ATTORNEYS AND TRIAL TRIBUNAL IN CONSPIRACY TO DENY § 20-141.4(A3) IS A DWI OFFENSE? When people enter into a conspiracy to accomplish an unlawful end, each and every member becomes an agent for the other conspirators in carrying out the conspiracy.

ISSUE: IS RELEASING A LAWFULLY CONVICTED AND SENTENCED PRISONER EARLY ON FACIALLY UNJUSTIFIED, UNREASONABLE, AND IRRATIONAL GROUNDS A CONCRETE INJURY SATISFYING DUE PROCESS AND EQUAL PROTECTION OF RIGHTS?

ISSUE: CAN WE INSIST ON A SINGLE PROCEEDING IN WHICH THE DAMAGES WOULD BE CALCULATED IN THE AGGREGATE AND BY THE JURY? We contend that the catastrophic nature o the trauma itself and subsequent injuries, fighting to put her in prison and keep her there for her lawful minimum duration, severely incapacitated our ability to fight USAA until the priority of holding Rhonda criminally accountable, which took 17 months, was dealt with. Then the priority of keeping her in prison to pay her entire debt that she owes to society was time consuming and emotionally destructive. We retired and moved during this time. Our battle with USAA and indignance about their conduct had to wait. We need one jury for a consistent verdict to sort the damages justly and fairly. The calamity and its consequences bind all parties to our issues.

 ISSUE: CAN A STATE INTERFERE AND ARBITRARILY OVERRULE A COURT BY ISSUING A SHORTER SENTENCE ON A LAWFULLY PRESCRIBED JUDICIAL, STATUTORY, AND POLICY IMPOSED PUNISHMENT?

IS THE STATE’S CONDUCT RELEASING RHONDA FROM HER SENTENCE EARLY ILLEGAL, ERRONEOUS, AND VOID BECAUSE OF THE INTRINSIC HARM TO SOCIETY?

ISSUE: DOES THE GOVERNMENT RUN AFOUL OF THE EQUAL PROTECTION CLAUSE BECAUSE THERE IS A RATIONAL RELATIONSHIP BETWEEN THE DISPARITY OF TREATMENT AND SOME LEGITIMATE GOVERNMENATAL PURPOSE? Montgomery (pdf p. 45). Our disparity is DWI victim v. DWI offender, singly and as a class, law abiding citizen v. convicted criminal. Why is the State and Trial Tribunal giving undue favoritism to the bad guys in terms of criminals’ freedom at the expense of the debt to society that is owed? The Equal Protection Clause prohibits a State from denying to any person within its jurisdiction the equal protection of laws. Amdt. XIV, § 1. The State never gave a legitimate government purpose for granting Rhonda amnesty because there is none. Lack of accountability doesn’t solve DWI. Get out of jail free passes don’t solve DWI. Putting them back on the roads unjustly doesn’t solve DWI. Lost faith in the justice system doesn’t solve DWI. Equal application of law: why do § 20-141.4(a) offenders get their sentences illegally truncated so that DWI victims don’t get the retribution they expect? Presumably other convicted offenders’ victims get retribution through the completion of their sentences without illegal government interference.

IT’S ELEMENTARY

The Government established that its position is that DWI is an Element of the offense for which Rhonda was convicted, so she wasn’t convicted of DWI, thus it is their basis for giving Rhonda a ‘Get out of jail free’ card. “DPS Prison and Policy…not eligible for Earned Time…Inmates convicted of DWI…Motor Vehicle Driver Protection Act of 2006…AN ACT to strengthen the laws against impaired driving by increasing the punishment for felony death by vehicle and creating the offence of felony serious injury by vehicle…DPS...wouldn’t concede that the § 20-141.4(a3) is a DWI offense” (R p 32). “DPS said Rhonda was not in prison for DWI because § 20-138.1 is an element of §20-141.4(a3)…An element is a condition of a crime” (R p 33). “An Act to provide (1)…impaired drivers…(2)…alcohol (3)…impaired driving offences (4)…impaired driving offenses (5)…driving while impaired (6) Aggravated penalties for offenders who seriously injure or kill when driving while impaired (7)…impaired driving offenses (8)…driving while impaired…(10) Other measures designed to improve the safety of the motoring public of North Carolina; and to provide that the Act shall be known as ‘The Motor Vehicle Driver Protection Act of 2006.’ “(R p 433) “Part VII. Felony death by vehicle and injury by vehicle” (R p 441-442). The Executive and Trial Tribunal’s blunt refusal to recognize that Rhonda’s offense is a DWI is contrary to the will of the people and the public good. The Act speaks with a clarity of purpose. The context fortifies the meaning of the principle that §20-141.4(a3) commands: it is a DWI offense.

The Supreme Court conveniently clarifies the issue in Mathis v. United States, 579 U.S. ____ (2016). “ ‘Elements’ are the constituent parts of a crime’s legal definition, which must be proved beyond a reasonable doubt to sustain a conviction; they are distinct from “facts,” which are mere real-world things—extraneous to the crime’s legal requirements and thus ignored by the categorical approach.” Elements are what defines a crime.

DWI isn’t necessarily an element of bodily injury, therefor bodily injury isn’t the substantive crime of § 20-141.4(a3). A person’s consent and intention to drink and drive is inherent in the underlying substantive offense. Denial that it is a DWI conviction is not a logical or natural way to interpret the statute. The language in the Act undermines the State’s claim that it’s not a DWI offense because they failed at the first and most important step, it is a driving statute, and what kind of driving resulted in bodily injury? Intoxication. The substantive crime is DWI and is well supported by context, whereas the State’s position is not, and their insistence about this is outside the ambit of DWI. Their resistance to the straightforward reading is unknown because their position doesn’t serve a purpose toward justice or common good. Why they reject the spirit and intent of the entire writing and purpose is baffling such that there must be some sort of corrupt mechanism in operation. Their reasoning and holding their position is illegitimate. The principle goal of the Act is to make roads safer but the State is acting contrarily to those goals. Why has the State gone to such lengths to Rhonda and Junior’s records and protect them from accountability? Why is the state so determined to protect them? We would love to know the truth, the real basis for the State’s conduct in denial this is a DWI offense, and illegally releasing her early at the expense of everybody in the state’s constitutional rights. Why did the State derogate its duty to follow the law in this case and deny DWI as grounds for Rhonda’s unconstitutional early release? Why is the State illegally supplanting State law and imposed sentences for Rhonda’s benefit and road safety’s expense? Why did the Trial Tribunal accept this conduct when it clearly doesn’t meet the ends of justice? Because the State ignored law and duty at the behest of our repeated requests, it caused and continues to cause us severe emotional distress. Why does the State give illegal and immoral privileges of unjust freedom to convicted DWI offenders? Why did the Trial Tribunal allow her to remain free? Why does the State and the Court have no solicitude for victims of DWI?

The broad remedial goal of this statute should be enforce to the full extent of its terms. Punishing society by denying that it’s a DWI is robbing us of justice that law seeks to mete. That means immediately returning Rhonda to prison to serve her remaining 4 months that she owes the state. The State’s denial cheats society and doesn’t contribute positively to policy goals of keeping the roads safe from serious and violent offenders such as Rhonda. The State’s interpretation is inconsistent with both the text and context of the Act. The Trial Tribunal’s interpretation of “statutory language cannot be construed in a vacuum. It violates a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” (qtd. in Sturgeon v. Frost, 577 U.S. ____(2016)). The state is insisting on an implausible reading of the statute: bodily injury without DWI. It’s a felony DWI because the legislators recognized the serious and violent consequences of DWI which includes serious injury and death. The State reads the statute too narrowly by relying on its title only. They refuse to admit the truth. They refuse accountability for their atrocious conduct toward us as victims and as (former) residents of the State. Their assertion is frivolous and does a grave disservice to everyone who uses the public roads, and especially victims of intoxicated drivers who cause what some would argue is a harsher sentence than death: catastrophic bodily injury. We stand for our rights and for the rights of everybody in the state because the State is abdicating their duty to follow the law and morality. The State’s position defies reason. The Act uses language such that it’s hard to imagine language speaking more directly and to the point. Yet the State seizes on the title alone, to the exclusion of its elements, chapter, consequences, surrounding statutes, and the point of the Act itself. Why do they hold fast to their position? To whose benefit? Rhonda’s unconstitutional freedom and other DWI offenders like her? The point of DWI laws is to benefit victims and society in general. The State is acting funny and we don’t know why. We have no satisfactory answer except corruption because the State’s blindness is just too bright to ignore.

The Trial Tribunal’s ill treatment of this statute cannot stand. The reasoning of the State poses a grave threat to everyone’s fundamental right to justice that a convicted offender must serve the minimum sentence issued by a court because it is intrinsic in the understanding of our criminal justice system. “A State’s most basic responsibility is to keep its people safe.” Caetano v. Massachusetts, 577 U.S. ____ (2016) (pdf p.12). The State of NC was willing to protect Rhonda’s rights to due process, but to us it chose to deploy its resources to dig deeper into their immoral and unlawful position and revictimize us so that we were deprived of the satisfaction of seeing Rhonda complete her sentence. The Trial Tribunal confirmed the State’s position on baseless grounds. ISSUE: IS IT THE DUTY OF THE COURT TO CARRY OUT DECISIONS OF THE LEGISLATURE AND OF OTHER JUDGES’ SENTENCES WHEN CALLED TO THE COURT’S ATTENTION?

The State gives out “Get out of Jail Free” cards to the most serious and violent DWI offenders by denying that their DWI offenses are DWI offences. Rhonda pleaded guilty. Dozens of Witnesses. BAC. Chapter 20. License suspension for four years. The Act. What is really going on here? The State and Trial Tribunal’s interpretation and results don’t comport with law or common sense. To judge a statute by its title alone could allow the State to free pedophiles and murders unaccountable for their crimes if the titles of their statutes were simply “bodily injury.” There’s more to a statute than just its title. DWI was implied in the title and was so obvious that legislators didn’t think it was necessary to be redundant and superfluous. “The canon against superfluity, this Court has often stated, assists only where a competing interpretation gives effect to every clause and word of a statute.” Lockhart v. U.S., 577 U.S. ____ (2016) (pdf p. 25). Rhonda wasn’t convicted on the statute’s title alone, and reasonable minds do not dispute that she went to prison for DWI that resulted in bodily injury. Her crime was substantively DWI. To deny that it is a DWI offense is to preclude it from being a predicate element for a habitual DWI charge. The State’s logic when carried out then means that if Rhonda maimed 100 people in 100 separate auto collisions while intoxicated that she would be immune from being charged and convicted of habitual DWI. Where is no bodily injury without DWI in the statute’s gravamen because it is the substantial part of the charge and grievance of her conduct. ISSUE: DID THE STATE AND TRIAL COURT BOTHER TO JUSTIFY THE LOGICAL CONSQUENCES OF ABSTAINING HER DWI? Their actions lie away from the heart of a fair, effective criminal justice system because there’s no support in common law for government’s position.

The State is also hypocritical. In June 2016 they approached MADD and asked Jeremy to be a spokesperson on TV across the State for their Booze It or Lose It campaign because they thought he would be perfect for it. Janiform: two faced, deceitful. The right hand doesn’t know what the left hand is doing. In North Carolina, more often than not, boozing it means you don’t lose anything due to the lack of enforcement in prosecution and the courts. The State is sending contradictory messages, but the public should expect a clear and consistent message about DWI policies and enforcement. ISSUE: WHAT ARE THE STATE’S COMPELLING INTERESTS TO JUSTIFY RELEASING RHONDA EARLY AGAINST LAW AND POLICY? Why does the State want to undermine victims from getting justice and preventing more DWI injuries and deaths? It should be in the State’s interest to punish DWI offenders and keep them off our roads.

The State and Trial Tribunal’s denial of DWI undermines confidence in the government and courts. Their assertion lacks validity. They violated our due process and equal protection rights because admitting that her conviction is DWI prevents her from Earned Time; therefore, her earned time was an erroneous application to the reduction of her sentence, so she owes the state those 4 months more of her debt to society.

ISSUE: DID THE GOVERNMENT CHEAT PLAINTIFFS AND EVERY CITIZEN OF NORTH CAROLINA OF JUST DESERTS BY UNJUSTLY RELEASING RHONDA FROM PRISON EARLY? “What one really deserves; esp., the punishment that a person deserves for having committed a crime. Black’s Law Dictionary 995 (10th ed. 2014). Just deserts: victims’ rights of retribution after a criminal has been lawfully convicted prevents vigilante revenge or retaliation. Unfortunately the Attorney General wants to characterize our position as fighting the criminal process before Rhonda was sentenced, which is categorically untrue, so his arguments invoking Rule 12(b)(1) subject matter are irrelevant (e.g. R p 523-524) because the State’s case is completed. We have no beef to take up with this Court about the performance of the DA in their case State v. Bryant and didn’t do so anywhere in the record, though we pointed out some egregious conduct by government officials. Our issue is with the Governor’s refusal to perform his mandatory duty to execute Rhonda’s sentence as prescribed by law and label her accordingly with the crime that she committed, which we have repeated ad nauseam before and throughout these proceedings. The governor avoids his duty through the baseless contention that Rhonda wasn’t convicted of DWI. Retribution is the oldest theory of punishment because criminal behavior constitutes a violation of the moral order of society and deserves payment of some kind, therefore, a criminal is punished because she deserves it. Rhonda had the free will to make a moral choice of whether or not to engage in conduct that she knew is prohibited. The Governor, by ignoring the seriousness and very nature of Rhonda’s offense, causes physical, emotional, and economic harm to us, to all DWI victims, and to society in general. The State’s failure to recognize the harm that they are perpetuating is stunning and unacceptable. The judge in State v. Bryant held Rhonda accountable, but now we need to hold the Government accountable for their subsequent immoral and unconstitutional conduct. We need psychic restitution from the government of North Carolina that they shall perform their mandatory ministerial duties for the good of the people.

Rhonda didn’t complete the mandatory minimum of her term as ordered by her sentencing court (R p 519) as the AG insists because she didn’t serve the Earned Time that the State erroneously credited her with. This is our actual and real existing controversy, which the AG denies and we dispute (R p 522) as grounds for a 12(b)(1) dismissal. Our constitutional challenge is not about the legislation itself, it is about the Governor’s failure to execute the legislation. “WE ARE SCREAMING THAT THE LEGISLATURE MADE WONDERFUL PUBLIC POLICY BUT THE EXECUTIVE IS REFUSING TO ENFORCE IT” (R p 548) (emphasis in the original).  The AG then invokes the doctrine of sovereign immunity for dismissal on Rule 12(b)(2). We are thoroughly perplexed as to why the Attorney General invokes sovereign immunity as a basis for dismissal by citing our request for money damages (R p 526, 820). It’s insulting because to fight the State has cost us inter alia, in filing fees, printing costs, transportation and lodging, and research. The costs we have asked for is reasonable and typical in all lawsuits when Plaintiffs prevail. None of the captions in our complaint that name the State, or the relief sought, asks for money from the State, (R p 16, 26, 27, 28, 37, 38, 39, 40, 41, 42) Perhaps they object to this sentence in our prayers for relief, “We pray the Court for reimbursement of fees and costs, and maximum awards and punishments as available and allowable” (R p 39, 42). “We prayed the Court explicitly in our Complaint for equitable remedy of specific performances, and we also prayed the Court for anything else the Court deems just and proper” (R p 574). “We pray the Court enter and Order Judgment taxing the cost of this Action against the Defendants, and any other monetary and equitable Relief that this Court deems just and appropriate” (R p 576). We don’t know if we are entitled to any money damages from the State with the facts and circumstances of our case, but if we are, then we ask the Court to award us damages to the fullest extent that the law can grant us. The AG doesn’t point to anywhere specifically in the complaint or subsequent pleadings to give credibility to his assertion. Moreover, when he invoked this defense in the Trial Tribunal, we said, “They’re claiming sovereign immunity in that we asked for money, but that’s the thing; we didn’t ask the State for money at all. We don’t want money from the State. We – we – that was an injected legal fiction that they put in there. At – at no point – and none of the – in the captions to the State…There’s – there’s no request from money from the State. We just want – we really want Rhonda Bryant to go back to jail for the time that she owes the State” (T p 23). And here’s another place that it gets weird with the Trial Tribunal’s conduct, he replied, “Now, I understand what you want but the fact that there may be argument that you’re asking for money doesn’t really have anything to do with sovereign – I mean, with sovereign immunity” (T 23). Plaintiffs agree, but this is what the AG invoked. It demonstrates that the AG had no basis to invoke sovereign immunity in our case. But the Trial Tribunal disregarded his own statement and ours and the record and issued the Order granting dismissal on grounds sovereign immunity on that money basis (R p 820). ISSUE: CAN THE STATE INVOKE SOVEREIGN IMMUNITY TO BAR OUR CONSTITUTIONAL CLAIMS AGAINST THE STATE? For authority that our claims against the state may go forward because invoking sovereign immunity is bunk, look at the AG’s own argument from their Memorandum in Support of Motion to Dismiss in Town of Boone, v. The State of North Carolina 14 CVS 13934, “Although the Town raises a constitutional claim under the Declaration of Rights by invoking Article I § 32, there is not a common law waiver of immunity for the Town’s claim. While individuals have the right to sue public officials for state constitutional violations of their civil or personal rights under the Declaration of Rights of the North Carolina Constitution, Corum v. University of North Carolina, 330 N.C. 761, 782-83, 413 S.E.2d 276,289-90, cert. denied, 506 U.S. 985, 113 S. Ct. 493, 121 L. Ed. 2d 431 (1992), there is no corollary right for the Town of Boone. The Town is not an individual with personal rights.” (Page 7, emphasis theirs) (We cited Corum R p 547). Our complaint includes the form of word “constitution” in the captions, and specifically says, “The State Constitution requires consistency and conformity with the law” (R p 26), “Article III, Section 5 says the duties of the governor is to take care that laws be faithfully executed” (R p 29, 560-61). “The cost of obtaining a single person’s statewide criminal background check is unconstitutional because it is prohibitively expensive and unduly burdensome…” (R p 40). And in our rebuttal, “The AG also failed to mention Robeson County’s violation of Article 1, Sec. 18 of the Constitution dictating that Court shall be open” (R p 541). “Article I of the North Carolina State Constitution says that the great, general, and essential principles of liberty…the State, Government, USAA, and the Bryants have…violated these constitutional rights…Sec. 36 says the enumeration of rights in this Article shall not be construed to impair or deny other rights retained by the people…we vociferously appealed to the Governor and his various Agencies that they were illegally releasing Rhonda Bryant early form her Court mandated and statute and Policy supported sentence…why have they gone to such illegal lengths for Rhonda Bryant? We would like to know the truth” (R p 543-44). “A governmental entity violates a party’s substantive due process and equal protection rights under the United States and North Carolina Constitutions when it denies a Claim and asserts governmental immunity in a discriminatory or arbitrary and capricious way. Under those circumstances, an Action may be filed against the Government under the State Constitution and/or pursuant to 42 U.S.C. § 1983. Dobrowolska v. Wall, 138 N.C. App. 1, 530 S.E.2d 590 (2000). In order to establish a constitutional violation, a party must show that: (1) he was treated differently than similarly situated Claimants, or (2) that the determination to deny the Claim and assert governmental immunity had no rational relation to a valid state objective. Jones v. City of Durham, 183 N.C. App. 57, 643 S.E.2d 631 (2007)” (R 547). “Art. III, sec. 4 states that the Governor takes and Oath or affirmation that he will support the Constitution and the Law of the United States and of the State of North Carolina, and that he will faithfully perform the duties pertaining to the Office of Governor” (R 561).  “Article XIV, Sec. 3 says that Laws enacted by the General Assembly should be uniform in its effect across the State. Sec. 4 says that the Laws of North Carolina not in conflict with this Constitution shall continue in force until lawfully altered: (R 565). “The Courts of this State have the power, pursuant to Article IV of the North Carolina Constitution, to issue in personam orders requiring public officials to act in compliance with their ministerial or nondiscretionary public duties. Orange County Sensible Hwys. & Protected Env’ts, Inc. v. North Carolina Dep’t of Transp., 46 N.C. App. 350, 265, S.E.2d 890 (1980)” (R 567). “Article I, Section 2 of the North Carolina Constitution says that all political power is vested in and derived from the people, all Government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole. In the LEXIS annotated case note to Art. I § 19 says: DWI seizure statutes were held constitutional in spite of a “Law of the land” challenge, indicating that these statutes have a legitimate objective --- keeping impaired drivers and their cars off of the roads --- and that the means chosen to further the goals --- seizing the cars, even when they belong to people other than the drivers --- is directly related to said objective. State v. Chisholm, 135 N.C. App. 578, 521 S.E.2d 487, 1999 N.C. App. LEXIS 1182 (1999). The AG’s Motion contradicts the fact and core of our Complaint that it is a legitimate objective of the State to keep impaired drivers and their cars off the roads. (R p 567-8). The AG then turns to dismissal on Rule 12(b)(6) grounds (R p 526-28), which we attempted to rebut (R p 539-380) and the allegations and facts in our Complaint was sufficient, but it all fell on deaf ears in the Trial Tribunal.

Rhonda’s conviction and sentence was as sound as it could be (we have no choice but to presume such) because Rhonda pleaded guilty to DWI and the judge sentenced her to 16-29 months under structured sentencing with the record she had to go on, which didn’t include any of Rhonda’s past DWI charges or driving infractions or whatever other missing and incomplete records should be in Rhonda’s criminal records (R p 199-213). We have alleged repeatedly that her records are inaccurate and incomplete, and scrubbed by somebody, so we don’t really know the extent of Rhonda’s criminality. How do records disappear? Our complaint alleged our grounds, causes of action, constitutional violations, and allegations that the State turns a blind eye on DWI and doesn’t follow its own rules (R p 27-39). At first we wrote to the State officials because Rhonda wasn’t participating or completing any required programs in prison but getting credit for them, such as schools, jobs, and drug treatment. We were upset and confused why she was promoted to Minimum 2, and we couldn’t understand why she was scheduled to get out of prison at her minimum date of 16 months, why her sentence was drastically cut when it was our understanding that she only had one day of credit and that her sentence is supposed to work down from 29 months (afterword we learned that 9 months are taken off the top for probation, so it’s really a 20-month sentence) (R  p 227-228). After writing that letter, we found out that Rhonda as a DWI offender isn’t eligible for Earned Time credits whatsoever, thus she is required to serve 20 months minimum and our issues about her non-compliance with prison programs to get undeserved earned time became moot. When Jenny met the Governor at Walter Reed, he said that he cared about DWI and gave us his assistant’s card if we ever needed help. But then through the exchange of emails and calls with the Governor’s assistant and Department of Prison officials, we were shocked and outraged to learn that they didn’t think that Rhonda was in prison for DWI. Our exhibits show the chain of our asking for help to keep her in prison as dictated by law and policy and that we wanted her records complete and accurate (R p 229-242, 30-34, 37-39). Angela from DPS said that Rhonda was earning days, 108 as of June 20, 2015, and Rhonda wasn’t convicted of DWI because it must be on the judgment, which we vigorously disputed over quite a few phone calls, and she said that she argued it with her supervisors on our legal points to no avail. We were also told that there is no such thing as Felony DWI except habitual Felony DWI, and she admitted that those offenders aren’t eligible for earned time (R p 30-31). We repeatedly asserted that just because Rhonda’s statute is poorly titled didn’t change the fact that she was indeed sentenced to Felony DWI, and the issue was becoming more urgent because they were about to release her unjustly, that this is the law, a safety issue, and is unfair to give Rhonda privileges that she is NOT entitled to, and we emailed a link that was the Motor Vehicle Driver Protection Act of 2006 stating that the express purpose of the Act is for strengthening the laws against impaired driving (R p 236). We cited the relevant statutes and policies, “When you read the totality of 20-141.4, it is clear that the statute addresses Felony DWI, and therefore Bryant should not be able to earn time”, and we included the Rules and Policies link and quoted from Page 6, “Earned Time…additional time may be earned…with the exception of those persons convicted of…Driving While Impaired” (R p 231). In a subsequent email, we pointed out in the subject line: DWI Statute 20-4.01(24a) b. and in the text that this General Statute defines which offenses are DWI, “Offense Involving Impaired Driving. – Any of the following offenses: Impaired driving under G.S. 20-138.1; b. Any offense set forth under G.S. 20-141.4 when conviction is based upon impaired driving or a substantially similar offense under previous law” (R 237, 31). But the Executive branch refused our evidence then and throughout this lawsuit because they still won’t admit that Rhonda was in prison for DWI. We demanded that they revoke Rhonda’s erroneously awarded earned time based on Rhonda’s conviction, state definitions of DWI, the NCDPS Prisons Policy and Procedure .0113(f)(7), (R 474-486), and expressed, “My mind and stomach have been knotted. As you know, it was extremely disturbing when the NC Post-Release Supervision and Parole Commission spokeswoman denied vehemently that Felony DWI existed and asserted as forcefully that Rhonda is NOT in jail for DWI. I’m sick about it and the implications for others in a similar situation. Does the governor have the power to ensure that they follow the statutory law and policy and procedures?” (R p 238). We pulled it all together in one email to fix the problem that it’s not fair to let a criminal out of jail early against the explicit language of state statutes and published prison policy and that it needed to be enforced, we again included the definitions and link for Chapter 20-4.01(24a), the NCDPS prison policy that inmates convicted of DWI are not eligible for earned time for the purpose of reducing their confinement, and Rhonda’s sentencing transcript where the judge says Rhonda pled guilty to misdemeanor and felony DWI and the “Court arrests judgment on this misdemeanor as it is an element of the offense of felony serious injury by vehicle” (R p 240, 29). And this became another problem. Karen from DPS said that Rhonda wasn’t in prison because DWI is an ELEMENT of her conviction, so her conviction isn’t a DWI offense, and we tried to defend “element” in our Complaint (R p 32-33). The State feels indifference, apathy, and tolerance for DWI (R p 33). Our complaint cited Article 1 § 7 of the NC Constitution: “All power of suspending laws or the execution of laws by any authority without the consent of the representatives of the people is injurious to their rights and shall not be exercised” (R p 27). Our complaint asked the court to issue a decree that Rhonda was convicted of Felony DWI and issue an injunction ordering Rhonda back to prison immediately because injunctions are a remedy for irreparable injury to the rights of an individual when the injury can’t be adequately compensated by an award of damages because the loss can’t be calculated in terms of money, and we have injuries and irreparable harm that the state is not permitted to inflict, so we have no other reasonable redress in the court of law. We also asserted the DWI laws are not applied equally across the State despite the NCGA’s intent through passage of the Motor Vehicle Driver Protection Act of 2006 (R p 28, 433-473). Not one agency or person provided written evidence to contradict the law and policy we presented (R p 34). We also cited “Article II, Section 37 of the Constitution, Right of victims of crime (g) says the right as prescribed by law to present their views and concerns the Governor or agency considering any action that could result in the release of the accused, prior to such action becoming effective” and “Article III, Section 5 says the duties of the governor is to take care that laws be faithfully executed” (R p 29, 561) and that the governor is bound to honor Rhonda’s sentencing judgment and correct this issue of her unlawful early release and we have been victimized by the State because we have an expected trust with the State to carry out the laws that it has brought into effect (R p 34). We prayed the court to remedy these miscarriages of justice and unconscionable Executive and Judicial acts (R p 37). In State v. Bowden, 367 N.C. 680 (2014) the State Supreme Court said, The Commissioner of Correction shall have control and custody of all prisoners serving sentence in the State prison system, and such prisoners shall be subject to all the rules and regulations legally adopted for the government thereof.” DWI offenders are not eligible for Earned Time.

We included exhibits showing our vigorous fight to dispute the State’s contention regarding Rhonda, and we included an appendix. The State argued that we don’t have a right. We take no issue with the State’s case against Rhonda. We take issue with the state’s illegal and unjustified truncation of her lawfully ordered sentence, which as victims and citizens we have a right to insist that the government carry out faithfully.

Did the AG present a substantial basis for immunity?

Is the governor constitutionally charged with obeying the law?

Is the FRA unconstitutional if interpreted to cover damages caused by intentional acts of criminal DWI offenders? If so it is unconstitutional because that would condone criminal DWI by providing coverage, thus offenders know they are covered by insurance for the damages they cause through their illegal and dangerous conduct – it is against the stated policy goals of DWI legislation. If everybody carries UM, then DWI victims are covered by their own insurance in a first-party capacity, and when they don’t have insurance, the state has a victim’s fund that they can access, as well as filing suit for personal tort against the offender directly. CONFLICT WITH STATE/FEDERAL LAW

ISSUE: IF THE STATE INSISTS THAT RHONDA’S CONVICTION WASN’T A DWI, THEN IT FOLLOWS THAT THIS CONVICTION CAN’T BE USED AS A BASIS FOR HABITIUAL DWI, AND IF SO, IS IT A FEDERAL VIOLATION FOR THE STATE TO NOT ENFORCE ITS DWI LAWS? Speaking of conflict with Federal policy, 23 U.S. Code § 164 “if a State has not enacted or is not enforcing a repeat intoxicated driver law, the Secretary shall transfer an amount...”

PUBLIC LAW 112-141 An Act To authorize funds for Federal-aid highways, highway safety programs…SEC. 1404. Adjustments to penalty provisions (i) Operations of Motor Vehicles by Intoxicated persons…if a State has not enacted or is not enforcing a law…the Secretary shall withhold an amount equal to 8 percent of the amounts to be apportioned to the State…SEC. 31102. Highway safety programs…(a)(2) shall comply with uniform guidelines that (A) include programs—(iii) to reduce injuries and deaths resulting from persons driving motor vehicles while impaired by alcohol or a controlled substance. SEC 405. National priority safety programs (d) Impaired Driving Countermeasures (1) The Secretary of Transportation shall award grants to States that adopt and implement (A) effective programs to reduce driving under the influence of alcohol, drugs, or the combination of alcohol and drugs…Sec. 1403 (b)(2) if a State has not enacted or is not enforcing a repeat intoxicated driver law…

What is Jenny’s life worth? Releasing Rhonda from prison early against law and policy nearly caused Jenny’s death, she had to take psychotic drugs to prevent suicide. Our liberty has been stolen trying to fight the state for our constitutional rights to ensure that convicted offenders serve their minimum sentences as prescribed by state law and policy. It took 17 months of returning to court to make sure Rhonda’s case wasn’t dismissed, then pressure for felony charges, then a media campaign to ensure that she would be convicted. It took 17 months for Rhonda to finally plead guilty to what everybody knew she was guilty of: DWI that resulted in making Jeremy a triple amputee, ending his career, and ending Jenny’s career.

Lehr v. Robertson, 463 U.S. 248 (1983) (Stevens, J.), “The Fourteenth Amendment provides that no State shall deprive any person of life, liberty, or property without due process of law. When that Clause is invoked in a novel context, it is our practice to begin the inquiry with a determination of the precise nature of the private interest that is threatened by the State. Only after that interest has been identified, can we properly evaluate the adequacy of the State’s process.” It is self-evident that convicted felons must serve their minimum sentence, and this issue is sufficiently vital to merit constitutional protection. The State violated the Due Process Clause and Equal Protection Clause by the arbitrary destruction of Rhonda’s lawfully convicted sentence.  Action denying the process is “due” is unconstitutional. In our case the process that is due is recognizing DWI and returning Rhonda to prison. Due process is the struggle for legal and political consistency. A commitment to legality is at the heart of all advanced legal systems and the Due Process Clause is often thought to embody that commitment. Process is due when rights are involved.

The State released Rhonda Bryant early from prison against law and policy because they deny that she was in prison for DWI, which we vigorously fought the State about before her illegal early release. She was sentenced under structured sentencing. The Department of Public Safety Prisons Policy and Procedure guide (R p 474-486).

Chapter 132. Public Records. § 132-1(b) The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law. As used herein, “minimal cost” shall mean the actual cost of reproducing the public record or public information.”

§ 132-1.4(c) “shall be public records (1) The time, date, location, and nature of a violation or apparent violation of the law reported to a public law enforcement agency.

§ 132-6.2(b) Persons requesting copies of public records may request that the copies be certified or uncertified. The fees for certifying copies of public records shall be as provided by law…If anyone requesting public information from any public agency is charged a fee that the requester believes to be unfair or unreasonable, the requester may ask the State Chief Information Officer or his designee to mediate the dispute.”

§ 132-9(a) Any person who is denied access to public records for purposes of inspection and examination, or who is denied copies of public records, may apply to the appropriate division of the General Court of Justice for an order compelling disclosure or copying, and the court shall have jurisdiction to issue such orders if the person has complied with G.S. 7A-38.3E. Actions brought pursuant to this section shall be set down for immediate hearing, and subsequent proceedings in such actions shall be accorded priority by the trial and appellate courts.”

We allege the fees and work to obtain public accurate and complete public records are unconstitutional – these statutes don’t speak to that issue we raised, see judge’s order.

ISSUE: DID THE STATE AND THE TRIAL TRIBUNAL MISCHARACTERIZE OUR ISSUES?

ISSUE: WHERE IN NORTH CAROLINA LAW DOES IT SAY OR AUTHORIZE THAT EACH COUNTY MAY CHARGE $25 FOR A CERTIFIED COPY OF ONE PERSON’S CRIMINAL PUBLIC RECORD? Not in the statutes. This is not a “minimal cost” as prescribed by Chapter 132. The reason for $25 isn’t ascertainable.

ISSUE: IS $2,600 A CONSTITUTIONALLY FAIR PRICE AND DUE BURDEN IN THE ACT OF PETITIONING EACH COUNTY INDIVIDUALLY TO OBTAIN ONE PERSON’S STATEWIDE CERTIFIED CRIMINAL RECORD? Does it violate N.C.G.S. § 143B-930 because it’s an unreasonable fee?

ISSUE: WHERE IN CASE LAW OR STATUTES DOES IT SAY THAT PRISON RECORDS ARE NOT SUBJECT TO INSPECTION BY THE PUBLIC? IF THERE IS NO ENFORCEABLE OR VALID PROSCRIPTION, THEN HOW DO WE OBTAIN RHONDA’S PRISON RECORDS?

ISSUE: DOES NORTH CAROLINA UNCONSTITUTIONALLY PROHIBIT ACCESS TO A SINGLE PERSON’S CERTIFIED CRIMINAL BACKGROUND PUBLIC RECORD CHECK DUE TO UNREASONABLE COSTS AND BURDENS OF PROCURING A STATEWIDE RECORD? We paid $25 each for three counties and inaccurate and incomplete records were returned and the government and trial tribunal are preventing us from redress.

ISSUE: IS THE PRIMARY PURPOSE OF THE DUE PROCESS CLAUSE TO ENSURE FAIR AND ORDERLY ADMINISTRATION OF LAW?

ISSUE: IF CRIMINALS RIGHTS ARE PROTECTED SUCH THAT THEY DON’T LOSE THEIR FREEDOM UNJUSTLY AND THEY ARE THUS SENTENCED JUSTLY, IS IT AN INHERENT RIGHT OF THE PEOPLE TO EXPECT THE GOVERNMENT TO CARRY OUT THAT PRESCRIBED SENTENCE TO THE LETTER OF THE LAW?

ISSUE: DID THE GOVERNOR’S INTERPRETATION OF THE TITLE OF § 20-141.4(A3) CONTRAVENE THE MANIFEST PURPOSE OF THE LEGISLATURE? “[W]here a literal interpretation of the language of a statute will lead to absurd results, or contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded (qtd. in Lunsford p. 638). “Obviously, the Court will, whenever possible, interpret a statute so as to avoid absurd consequences.” (qtd. in Lunsford p. 693).

ISSUE: ARE VICTIMS’ RIGHTS ADOPTED AND ENDORSED BY THE STATE WHEN CONVICTED OFFENDERS SERVE THEIR FULL SENTENCES AS PRESCRIBED BY LAW AND POLICY? The State doesn’t invoke its wrath to bring punishment upon DWI offenders. The State itself is a habitual wrongdoer in the prosecution, conviction, and incarceration of DWI offenders. Our rights at stake to enforcing § 20-141.4(a3) by law as a DWI offense is closely tied to the government’s purported objective of road safety and the general public’s right to road safety, and our rights to see convicted offenders serve their full minimum sentence as prescribed. It is a private and public right that the Executive faithfully administers the law. We seek redress not only for the harm to citizenry, but for the State’s double victimization of DWI victims for denying that we are victims of DWI and this is not equal protection under the law.

ISSUE: PEOPLE DON’T HAVE THE RIGHT TO MAKE THE STATE PUNISH CRIMINALS, BUT ONCE THEY PLEAD GUILTY AND ARE LAWFULLY CONVICTED AND SENTENCED, DO THE PEOPLE HAVE THE RIGHT TO SEE THE OFFENDER SERVE THEIR MINIMUM SENTENCE WITHOUT ARBITRARY AND UNJUSTIFIED AMNESTY FROM THE GOVERNOR? IF SO, AND THIS PRINCIPLE IS VIOLATED, IS IT AN EQUAL PROTECTION VIOLATION AND/OR A DUE PROCESS VIOLATION? We assert that offenders must fully serve their lawfully convicted sentences because it is a fundamental right of every person in society to expect such. The State cheated us and every member of society by letting Rhonda escape her full sentence based on a baloney reason. Serving a sentence as ordered is fundamental to our laws and justice system such that its enumeration is extraneous and redundant, and heretofore nobody thought it necessary to question.

ISSUE: IS RHONDA’S UNLAWFUL EARLY RELEASE A VIOLATION OF SUFFICIENT INJURY IN FACT TO CONFER PLAINTIFFS STANDING AND AUTHORIZE US TO SUE TO VINDICATE THAT RIGHT? There is concrete harm: undermining the foundation of the justice system. Spokeo v. Robins, 578 U.S._____(2016). “Legal injury imports damage in the nature of it…common-law courts, however, have required a further showing of injury for violations of ‘public rights’ – rights that involve duties owed ‘to the whole community, considered as a community, in its social aggregate capacity’…An action to redress a public nuisance, for example, was historically considered an action to vindicate the violation of a public right at common law, lest ‘every subject in the kingdom’ be able to ‘harass the offender with separate actions’…But if the plaintiff could allege ‘special damage’ as the result of a nuisance, the suit could proceed. The existence of special, individualized damage had the effect of creating a private action for compensatory relief to an otherwise public-rights claim” (pdf p. 16). We alleged severe emotional distress by the Governor’s conduct, Jenny had to go on Lexipro because extreme suicidal ideation, she was on the edge without a rail and one foot over.

ISSUE: IS THE GOVERNOR A PUBLIC NUISANCE AND MENACE IN DENIAL THAT §20-141.4(A3) IS A DWI OFFENCE? Pursuant to Spokeo, and considering road safety, denying this is a DWI is an infringement of a public right, a breach of our constitutional rights to equal protection. “The Court has said time and again that, when a plaintiff seeks to vindicate a public right, the plaintiff must allege that he has suffered a ‘concrete’ injury particular to himself…This requirement applies with special force when a plaintiff files suit to require an executive agency to ‘follow the law’” (pdf p. 17). The governor illegally released Rhonda from prison August 5, 2015, causing us severe emotional distress, the injury is a breach of our constitutional rights and our rights to road safety. “But the concrete-harm requirement does not apply as rigorously when a private plaintiff seeks to vindicate his own private rights. Our contemporary decisions have not required a plaintiff to assert an actual injury beyond the violation of his personal legal right to satisfy the ‘injury-in-fact’ requirement…nominal damages are appropriate when a plaintiff’s constitutional rights have been infringed but he cannot show further injury…in suits against the government, at least, the concrete injury requirement must remain.” (pdf pp. 18-19).

 ISSUE: DOES THE U.S. CONSTITUTION ABATE THE GOVERNOR’S AUTHORITY TO ARBITRARILY AND ILLEGALLY CURTAIL AN OFFENDER’S SENTENCE BY INVOKING SOVEREIGN IMMUNITY? Society cannot hold Rhonda and other DWI offenders accountable when the Governor refuses to uphold the laws meant to do so. The Governor violates our rights to hold convicted offenders accountable for their crimes. It is not equal protection when offenders have EXTRA rights than their victims. Punishment is administered to maintain justice, social harmony, to clarify and deter malevolent and harmful conduct. North Carolina isn’t protecting Rhonda’s rights, they are giving her more rights than she deserves as a violent, serious, and habitual offender in fact but not in conviction. The State is overprotecting a criminal for no good reason. The victory of Rhonda getting a strong sentence of accountability after struggling 17 months to ensure it was a hollow victory and a defeat in light of the State’s subsequent conduct. It’s crushing. No peace of mind. Hopelessness. Inability to experience joy. The message that we get from the State is that they don’t think that Jeremy being a triple amputee by Rhonda’s conduct is a big deal – they are ignoring the seriousness of DWI by not labeling it appropriately with the punishment she was ordered to serve. The State demoralizes us as DWI victims – a slap in the face against stark evidence to deny she was convicted of DWI and to let her out of prison early based on a false assertion. The State and Trial Tribunal make us feel helpless and powerless to obtain justice, and that makes it impossible to heal our spirit.

ISSUE: WE ALLEGED IN OUR COMPLAINT THAT RHONDA ONLY SERVED ONE DAY IN PRISON BUT THE RECORD CHANGED TO SHOW TWO DAYS OF CREDIT, AND WHEN WE ASKED WHICH TWO DAYS SPECIFICALLY, THEY WOULDN’T PROVIDE THE DATES, SO HOW CAN WE KNOW SHE WAS CREDITED APPROPRIATELY IF THE GOVERNMENT REFUSES TO CONFIRM THE SPECIFIC DATES THAT SHE WAS CREDITED? Mistrust of government and the judicial process.

ISSUE: WAS RELEASING RHONDA FROM PRISON BEFORE SHE COMPLETED HER MINIMUM SENTENCE ARBITRARY AND CAPRICIOUS AND A VIOLATION OF OUR CONSTITUTIONAL RIGHTS?

ISSUE: DOES DENYING § 20-141.4(A3) IS A DWI CONFLICT WITH THE STTUTE, POLICY, AND STATE HIGHWAY SAFETY GOALS?

ISSUE: DID THE STATE AND TRIAL TRIBUNAL REFUSE TO ADEQUATELY JUSTIFY WHY RHONDA WAS RELEASED EARLY FROM PRISON?

ISSUE: DOES THE STATE HAVE THE RIGHT TO INFRINGE ON OUR RIGHT TO RETRIBUTION BY UNLAWFULLY TRUNCATING RHONDA’S SENTENCE? The State’s action lacks a limiting principle, there is no stopping point. The State may wield unconstitutional power upon its citizens when the Trial Tribunal doesn’t take a stand against it, and it is outrageous to condone that conduct. The State may not intrude on the judicial sentence, and we assert our constitutional rights that Rhonda shall be returned to prison immediately.

ISSUE: IS THE UNCONSTITUTIONAL RELEASE OF AN INMATE UNDER A CONSTITUTIONAL CONVICTION A VIOLATION OF OUR CONSTITUTIONAL RIGHT TO RETRIBUTION BY WAY OF THE SENTENCE BEING SERVED BY A CONSTITUTIONAL PRINCIPLE? Punishment serves: Retribution, rehabilitation, restraint, and deterrence: and the State failed all four, which is a dramatic failure in the criminal justice system’s objectives of criminal law. These punishments, fines, incarceration, or death, are the State branches of government’s acts on behalf of society and are a social expression of the personal vengeance the criminal’s victims feel transmuted to what’s best for society as a whole – it’s morally right to punish offenders. But we have been morally wronged by the State through the denial of Rhonda’s substantive crime and truncation of her punishment. It is morally right to exact retribution on criminal offenders.

Gravamen of our complaint against State was their DWI denial, and the judge asked in transcript, that can’t be disputed – demonstrating that he didn’t read anything before hearing, then didn’t rule on it after, despite our emails begging him to recognize DWI.

Did the Trial Tribunal abdicate its duty to enter an order for default judgment when Jenny made a motion for a hearing and a motion on paper to render a default judgment against defendant Veronica McClain who failed to answer the summons and complaint?

There is widespread corruption with DWI sentencing, for example Judge James F. Ammons Jr recommended a two-month sentence for Rhonda, and because her ultimate sentence was 16-29 months – only because of media presence we contend – DWI is not enforced in the state, not viewed as a serious and violent crime, not respected as a bona fide threat to public safety, or perhaps the judges and attorneys are being paid off.

Did the Trial Tribunal flout the General Assemby’s intent to “establish an effective private cause of action for aggrieved consumers in this State…because common law remedies had proved often ineffective.” Marshall v. Miller, 302, N.C. 539, 548, 276, S.E.2d 397, 400 (1981)

Did the Trial Tribunal have a duty requiring it to sift through our novel and difficult questions interposed throughout our Complaint, and if so, did the Trial Tribunal abrogate its judicial duty to do so?

“Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end.” Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938).

“Due process of law requires that the proceedings shall be fair.” Snyder v. Massachusetts, 291 U.S. 97, 116, 117 (1934).

Our due process rights were violated by a biased judge who didn’t recuse himself and left it to us, but we didn’t put it in writing or sign anything, nor were we given a fair opportunity to consider our legal options.

We asked the Trial Tribunal for two injunctions: (1) Put Rhonda back in prison and (2) A restraining order against Junior. We substantively asked for findings and reasons for his conclusions and reconsideration for his rulings (R p 825-826, 837-840) including the injunctions we asked for, but the Judge refused to elaborate. Rule 52(b) says, “Findings of fact and conclusions of law are necessary on the granting or denying of a preliminary injunction or any other provisional remedy only when…requested by a party.” We specifically cited Rule 52 (R 826) implying our request for Rhonda’s injunction, and again (R p 838) specifically using the word “injunction.” Quick v. Quick, 305 N.C. 446, 457, 290 S.E.2s 653, 661 (1992) said that where findings are required, the trial court must make them with sufficient specificity to allow meaningful appellate review. “[W]hen the court fails to find facts so that this Court can determine that the order is adequately supported by competent evidence… then the order entered must be vacated and the case remanded.” DID THE TRIAL TRIBUNAL ERR IN NOT GRANTING OUR REQUESTS FOR FINDINGS OF FACT AND CONCLUSIONS?

Was the Trial Tribunal unjustly channeling Charlie Brown’s teacher when he heard us speak and as he (if he) read our filings? (Wah Wah Wah…)?

No procedure or practice of the Courts may abridge a person’s substantive rights.

In re Alamance County Ct. Facilities, 329, N.C. 84, 405 S.E.2d 125 (1991) (R 567)

§ 7A-276.1. Court orders prohibiting publication or broadcast of reports of open court proceedings or reports of public records banned. No court shall make or issue any rule or order banning, prohibiting, or restricting the publication or broadcast of any report concerning any of the following: any evidence, testimony, argument, ruling, verdict, decision, judgment, or other matter occurring in open court in any hearing, trial, or other proceeding, civil or criminal; and no court shall issue any rule or order sealing, prohibiting, restricting the publication or broadcast of the contents of any public record as defined by any statute of this State, which is required to be open to public inspection under any valid statute, regulation, or rule of common law. If any rule or order is made or issued by any court in violation of the provisions of this statute, it shall be null and void and of no effect, and no person shall be punished for contempt for the violation of any such void rule or order. (1977, c. 711, s. 3.)

ISSUE: CAN A FAIR AND IMPARTIAL TRIAL BE HAD IN JUDGE YOUNG’S COURT WITH THE FACTS AND CIRCUMSTANCES OF OUR CASE?

ISSUE: WERE THE TRIAL TRIBUNAL’S ORDERS TO DISMISS DEFENDANTS MANIFESTLY UNSUPPORTED BY REASON OR SO ARBITRARY THAT IT COULD NOT HAVE BEEN THE RESULT OF A REASONED DECISION?

ISSUE: DID TRIAL TRIBUNAL’S REFUSAL TO ALLOW OR DISALLOW OUR REQUEST TO RECORD COURT PROCEEDING VIOLATE OUR RIGHTS TO DO SO?

ISSUE: VERONICA MCCLAIN FAILED TO PLEAD OR ANSWER JENNY’S COMPLAINT, AND JENNY MADE A MOTION TO THE TRIAL TRIBUNAL FOR A DEFAULT JUDGMENT AGAINST MCCLAIN, BUT THE TRIAL TRIBUNAL DIDN’T ACT, SO IS JENNY ENTITLED TO A DEFAULT JUDGMENT FOR THE RELIEF PRAYED FOR IN HER COMPLAINT? (R p 44-45). “Plaintiff Jenny Bruns respectfully moves for this Court to issue a Default Judgment against Veronica McClain and grant the full relief prayed for in the Complaint pursuant to Rule 55 because there was not an answer served upon me within (30) days after she had been served on November 12, 2015” (R p 540). “Plaintiff Jenny Bruns prays and applies to the Court to issue a Default Judgment against Veronica McClain and grant the full Relief prayed for in the Complaint” (R p 577). Verification (R p 578). In our Notice of Motion Hearing under ‘Nature of Motion’ we wrote “Default Judgments” and believed that McClain’s default judgment would be entered as a matter of routine ministerial duties (R p 739).  ISSUE: IS THIS AN INDICATION THAT THE TRIAL TRIBUNAL DIDN’T READ OUR PAPERS WITH DUE CIRCUMSPECTION AND ABROGATED HIS JUDICIAL DUTIES?

CODE OF JUDICIAL CONDUCT EX PARTE COMMUNICATION

ISSUE: SHOULD THE ATTORNEYS AND THE TRIAL TRIBUNAL JUDGE FACE SANCTIONS FOR ILLEGALLY, IMMORALLY, KNOWINGLY, MALICIOUSLY, AND OFFENSIVELY DEPRIVING US OF OUR CONSTITUTIONAL RIGHTS? The conduct of lawyers is supposed be characterized by candor and fairness, counsel shall not knowingly misrepresent the contents of documents, exhibits, testimony, language or argument of opposing counsel or the language of a decision or other authority…they tried to obtain a free copy of the transcript knowing full well that they were supposed to pay for it. They had mens rea, and this was attempted extortion, they said “email is fine” to send them a free copy of the transcript using the coercion tactic of citing the Rules as the basis and requirement that we were obligated to send it to them for free. The attorneys and Trial Tribunal’s conduct has made it so that we have a scintilla of respect remaining for the judicial process in Cumberland County, North Carolina.

Trial Tribunal hearing, jury instructions, but I said final overlay, he didn’t fathom to understand the thousands of hours spent studying at home on the internet and at the library of congress and watching hundreds of supreme court arguments. DID THE TRIAL TRIBUNAL IMPROPERLY RELY ON ORAL ARGUMENTS AT THE HEARING INSTEAD OF DOING THE WORK AND READING THE PAPERS? The Trial Tribunal deprived us of our privity rights with USAA, denied Rhonda’s offense was a DWI, took advantage of our pro se inexperience evidenced by his conduct at the hearing and afterword, refused to establish our rights and status with the number of insureds and policies in play, refused our bad faith claims, didn’t answer our requests for declaratory judgments, didn’t look into the meanings of “occurrence” or “accident” or “intentional” regarding DWI and Negligent Entrustment, refused our motion to evaluate our case on the papers, declined to undertake the ethical path of voluntary recusal.

The Declaratory Judgment Act: a major purpose behind the legislation was to help eliminate uncertainties in legal and business relationships. The Act has been heavily utilized by insurance companies to obtain declarations resolving disputed issues of coverage or liability. See Columbian Financial Corp. v. Bancinsure Inc., 650 F. 3d 1372, 1377, 1383 (10^th Cir. 2011). We are our own insurance company because ours refuses to be ours in either a first- or third-party capacity. We get no protection from our own insurance company. ISSUE: DID USAA OWE US OTHER DUTIES THAT WE HAVE NOT BROUGHT UP BECAUSE THEY KNOWLINGLY MUDDLED OUR RIGHTS AND STATUS?

 ISSUE: WAS IT LAWFUL FOR THE TRIAL TRIBUNAL TO MAKE OUR REQUESTS FOR DECLARATORY JUDGMENTS NEGATIVE IN EFFECT BY IGNORING THEM AND DISMISSING THE PARTIES?

ISSUE: DID THE TRIAL TRIBUNAL ABUSE HIS MANDATE IN DISMISSING OUR CONTRACT ACTION AGAINST USSA IN THAT WE HAVE PRIVITY AND ARE A PARTY TO THE CONTRACT OF THE UNDERLYING CLAIM? Relevant to insurance coverage actions the Declaratory Judgment Act expressly provides that declaratory judgment actions are an appropriate mechanism for construing and interpreting contracts, “Any person interested under a written contract…or whose rights, status, or other legal relations are affected by a…contract…may have determined any question of construction or validity arising under the…contract…and obtain a declaration of rights, status or other legal relations thereunder.” (UDJA § 2). “[a] contract may be construed either before or after there has been a breach thereof.” (§ 3). The existence of coverage for a particular claim, whether a policy exclusion is applicable, priority of coverage between two or more insurers, should be accessible by pro se plaintiffs with an absentee insurance company dispute in the courts to determine. “The existence or nonexistence of any right, duty, power, liability, privilege, disability, or immunity or of any fact upon which such legal relations depend, or of a status, may be declared.” (Rule 57 Declaratory Judgment in Federal Rules of Civil Procedure).

ISSUE: DID THE TRIAL TRIBUNAL HAVE GROUNDS FOR IGNORING ALL OF OUR PRAYERS FOR DECLARATORY JUDGMENTS?

 ISSUE: DID THE TRIAL TRIBUNAL BREACH HIS DUTY BY REFUSING TO RULE THAT THE CATEGORICAL INTERPRETATION OF §20-141(A3) IS A FELONY DWI IN BLACK LETTER LAW?

ISSUE: WAS THE TRIAL TRIBUNAL WAS SUPPOSED TO DEPLOY A THREE-PART TEST FOR PLAINTIFFS’ BAD FAITH CLAIMS UNDER CHAPTER 75 WHETHER OR NOT THERE WAS A CONTRACT? USAA didn’t prove that we were exempt from UDTPA. Fraud is sufficient evidence of a deceptive act and demonstrates that parties are “engaged in an activity involving an exchange of some type in which a participant could be characterized as a seller.” Atlantic Purchasers, Inc., v. Aircraft Sales, Inc., 705 F. 2d 712, 716 (4^th Cir. 1983). When determining if the commerce definition is met, the “proper inquiry is not whether a contractual relationship existed between the parties, but rather whether the defendant’s deceptive acts affected commerce.” Prince v. Wright, 141, N.C. at 268, 541 S.E.2d at 197. No requirement of a contractual relationship between parties. We demonstrated throughout our Complaint that we suffered actual injuries as a result of USAA’s actions, including loss of specific property, i.e. the benefits of the contract, and intentional infliction of emotional distress.

ISSUE: DOES THE TRIAL TRIBUNAL OWE PETITIONERS THE SATISFACTION OF KNOWING THAT AT LEAST OUR ARGUMENTS WER FULLY HEARD? He left us feeling unheard, our questions unanswered, the motion for McCain went unnoticed.

ISSUE: DID THE TRIAL TRIBUNAL FAIL TO PROPERLY EVALUATE OUR COMPLAINT?

ISSUE: WAS IT THE TRIAL TRIBUNAL’S RESPONSIBILITY TO SAY THAT §20-141.4(A3) IS A DWI OFFENSE AND IS THE FACT THAT THE TRIAL TRIBUNAL WASN’T OUTRAGED AT THE STATE’S CONDUCT AND DIDN’T ORDER RHONDA TO RETURN TO PRISON IS A SIGNAL OF JUDICIAL INCOMPETENCE OR CORRUPTION?

ISSUE: WAS THE TRIAL TRIBUNAL INTERESTED IN HELPING ENSURE ALL PARTIES ACHIEVED JUSTICE?

ISSUE: DID THE TRIAL TRIBUNAL EXAMINE THE RELEVANT CONSIDERATIONS AND SEE THAT THE STATE ARTICULATED A SATISFACTORY EXPLANATION FOR ITS ACTIONS, INCLUDING PROVIDING A RATIONAL CONNECTION BETWEEN FACTS FOUND AND THE CHOICES MADE? The State didn’t do this basic requirement when answering our complaint because there is no valid reason to have released Rhonda from prison early. They didn’t provide reasons in support of their position or contentions to ours. The State didn’t satisfy any reasonable standard and DPS unintelligibly explained the release solely on the ridiculous reason that DWI is an element of § 20-141.4(a3). All of the defendants and Trial Tribunal jumped on this boat full of holes that can’t stay afloat. These parties are forbidden by the U.S. and N.C. Constitutions to grant Rhonda an illegal “get out of jail free” card for this invalid reason. It’s not even plausible. The State didn’t dispute that DWI offenders aren’t eligible for Earned Time, yet they dispute § 20-4.01’s explicit definition that §20-141.4(a3) is a DWI offense? IT’S CUCKOO! We can scarcely imagine a more irrational interpretive and harmful principle and position than this one that DPS, the Governor, and the AG are sticking to. It’s unjust and unreasonable because it’s inconsistent with its statutory mandate – and the Trial Tribunal allowed the State to thwart justice. Is it a conspiracy?

ISSUE: WHYARE THE BRYANTS IN A SPECIAL, PROTECTED CLASS AND NOT TREATED EQUALLY UNDER LAW? Who is protecting them and why? Rhonda and Junior add no value or goodness to the community because all they do is take and add contamination. They are menaces with no intention to conform to society’s laws. They are offenders who reflect irreparable corruption. We challenge you to find somebody to say something good about them. At Rhonda’s sentencing, her pastor, the only person who was there for her, didn’t say anything genuinely positive about her: he issued general platitudes about the human condition. In the interrogatories we asked Senior why he was married to her because we wanted to hear one good thing about her, but the question was met with hostility and still nothing good about her. Rhonda and Junior have not evolved from troubled, misguided offenders because they continue to offend by doing cocaine (crack is the word our neighbors have used) and driving on a suspended license. They are incapable of change and will continue to be a menace to society especially when society won’t hold them accountable. Their serial crimes and ongoing criminal behavior reflect “irreparable corruption.” They have no potential for rehabilitation for their selfishness, lack of discipline, and poor judgment. They lack a sense of responsibility, are reckless, impulsive, and are heedless risk-takers. They insert themselves into crime-producing settings and they are examples of irretrievable depravity. Despite numerous opportunities to turn their lives around, they won’t. They don’t. They are a waste, despicable humans who have no desire or intention of being good people. They are beyond rehabilitation and have no capacity for change. Their criminality isn’t transient, they embody characteristics of future dangerousness. They are incorrigible because their tendencies are not able to be corrected, improved, or reformed, and they have repeatedly and consistently demonstrated these attributes. They don’t strive to serve as positive role models, to the contrary, they continue illegal conduct flagrantly and without punishment, and they squander all of their opportunities to show that their crimes don’t reflect irreparable corruption. They are reviled by everyone in the neighborhood and have no redeeming qualities. They lack a moral compass. They are “determined wrongdoers” constantly ignoring existing statues and unlikely to adopt safe and legal practices.

ISSUE: DID THE TRIAL TRIBUNAL IGNORE THE LAW CAPRICIOUSLY, ARBITRARILY, AND/OR IRRESPONSIBLY?

ISSUE: PLAINTIFFS ALLEGED VIOLATIONS THAT AFFECT OUR SUBSTANTIAL RIGHTS AND BROUGHT IT TO THE COURTS’S ATTENTION, SO WHEN A TRIAL TRIBUNAL IGNORES THESE VIOLATIONS, IS IT LEGAL AND JUDICIAL MALPRACTICE? Trial Tribunal ignored Rhonda’s DWI, and he discounted our Bad Faith claims because we don’t need a contract to be in privity, we are in privity.

ISSUE: IS IT A CATEGORICAL CONSTITUTIONAL GUARANTEE THAT STATES MUST INCARCERATED FELONS FOR THEIR MINIMUM SENTENCES PRESCRIBED IN ACCORDANCE WITH LAW AND POLICY WHEN THERE IS NO LEGITIMATE OR EXCEPTIONAL REASON FOR AN EARLY RELEASE? Is this a substantive procedural rule? We vociferously and vigorously protested Rhonda’s early release.

ISSUE: IS THE STATE COMPELLED TO RETURN RHONDA TO PRISON? Yes because they are forbidden from disturbing the finality of the state conviction. Montgomery v. Louisiana, 577 U.S. ___ (2016). (pdf p. 3).

ISSUE: DOES DISTURBING THE FINALITY OF A STATE’S CONVICTION THROUGH UNLAWFUL EARLY RELEASE OF A FELON CONSTITUTE A VIOLATION OF THE CONSTITUTION? The Constitution establishes a rule that prisoners must serve their full sentences by considering the 5^th, 8^th, and 14^th Amendments and the foundation for them, that great care is taken NOT to incarcerate someone unjustly. Just sentences must be carried out fully as prescribed by law and policy. Implicating the fundamental fairness and accuracy of criminal procedures. “States may not disregard a controlling, constitutional command in their own courts.” Montgomery (pdf p. 8). This rests on constitutional principles and premises because we can’t have safeguards against unlawful incarceration without the premise that lawful incarceration will be completely carried out, therefore the constitution forbids unlawfully truncated sentences. The State’s attempt at Rhonda’s unjust freedom through a title “loophole” is unconstitutional because their interpretation of the statute is plainly false. Her early release is unlawful because her conviction and sentence was valid. The State immunized a legitimately imposed sentence. The State and Trial Tribunal didn’t have the authority or jurisdiction to overturn or void Rhonda’s lawfully imposed sentence; they have the duty to carry out the conviction as prescribed, and not doing so punishes the victims and society by undermining fairness and justice. Rhonda should fully suffer the punishment imposed by her sentence. “There is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.” Montgomery (pdf p. 16). The State may not deny a controlling right asserted under the constitution. The State violated procedural rules by ignoring § 20-4.01 defining DWI and de facto exonerating Rhonda of DWI in spite of the clear, unambiguous statute. “Protection against disproportionate punishment is the central substantive guarantee of the Eighth Amendment.” Montgomery (pdf p. 17). If it works to protect unlawful sentences, it follows that this command protects lawful sentences. “Retribution relates to an offender’s blameworthiness.” Montgomery (pdf p. 18). Illegally truncated sentences deprive society of Rhonda’s retribution to society. “Due process of law was originally used as a shorthand expression for governmental proceedings according to the law of the land…and certainly does not establish any right to collaterally attack a final judgment of conviction.” Montgomery (pdf p. 44).

ISSUE: ARE DWI VICTIMS INDIVIDUALLY AND AS A CLASS AMONG SOCIETY GENERALLY ENTITLED TO FULL RETRIBUTION AS PRESCRIBED BY LAW AND POLICY? There is no deterrence effect when the State and courts fail to hold Rhonda and Junior accountable, and they will forever be a danger to society because of this posture from officials.

Hearing

This is a commentary about the hearing on January 25, 2016, which we allege was a joke on us, the pro se plaintiffs, because we perceive that the parties, including Judge Young, are not only cohorts, but they are in cahoots with each other. The Trial Tribunal and the attorneys intentionally disregarded their legal and ethical obligations. Our hearing was a mockery of justice.

For us to get to the hearing, we had to dig out of DC’s monster snowstorm the day before to stay in a hotel overnight to be on time for the hearing, and our nerves were frazzled because we didn’t know what would happen if we couldn’t make it to the hearing. It was our first civil court hearing, which also contributed to our physical and mental sickness because we didn’t know what to expect.

Our problems started that morning when Court was supposed to begin at 10 a.m., but a lawyer essentially dropped dead 10 feet in front of us, gasping his last breaths on the floor before losing consciousness before he finally died off site, so court was delayed an hour (http://www.fayobserver.com/news/crime_courts/lawyer-collapses-in-cumberland-county-courtroom-later-dies/article_d4503930-21b1-5071-b825-5d28486eb1b7.html). Jenny was traumatized. It was an omen.

At 11 a.m. we tried to ask the judge to hear our case us first because we had to drive back many hours to DC from Fayetteville in uncertain weather and road conditions, we had appointments the next day, and our motion would make the hearing last only one minute. He denied our request and we were dead last to be heard that day, which was truncated because he wanted everybody to go home at 5 p.m. That’s nice for everyone who lives in that area, but not so much for us with Jeremy having to drive home in the dark. Jenny doesn’t drive any more due to the trauma of the calamity, and Jeremy’s hand makes driving for long periods painful, as the traffic to and from DC can be nightmarishly long.

At the start, Young brought up Sanctions, and we thought he was talking to us, but he waved his hand in annoyance to indicate that he was only addressing the defendants and not us. Young never considered our filings and requests for sanctions seriously, neither asking us about it or reading our papers or ruling, evidently because that was the extent that he brought up sanctions (R p 740-818).

Jenny read our motion in court, “Your Honor, and may it please the Court, we pray the Court for judgment solely on the papers and to forego all oral argument at this stage. Thank you.” (T p 6).

Young obviously disallowed our motion because he allowed the hearing to proceed. We are not good oral speakers when it comes to law because we must research nearly every word and provision, thus the papers are complete for Young’s understanding of the issues. In retrospect, it looks like the purpose of the hearing was so that he didn’t have to read our complaint, examine the exhibits, and analyze the subsequent filings. We had so many disadvantages at that stage, so making us defend the complexities and nuances orally, making us attempt to defend our entire case with all of the parties was impractical, impossible, and antithetical to ascertaining and adjudicating the actual issues. It was unjust.

We brought up that USAA didn’t mail documents early enough pursuant to the Rules, and Young said we’ll get to that, but it wasn’t properly addressed. (T p 7). USAA said that pursuant to Rule 5, they filed their Memorandum on January 15, well in advance of the two days before the hearing (T p 45). USAA doesn’t think the three-day mail rules apply. Though it looks like this time is in accordance with the Rules, it felt like a dirty tactic to expect us pro se plaintiffs to respond to USAA’s memorandum with just days before we have to get it notarized on a weekday and then drive a day early to get to the hearing. There have been many nights where sleep had to be forgone in order to keep up with the demands of this lawsuit. Including right now.

Young brought up that he would give us “an opportunity to object to the Court hearing these matters because in my previous life I served as the Secretary of the Department of Public Safety, and before that, the Secretary of the Department of Crime Control and Public Safety before it was consolidated.” (T p 7) He failed to mention that he worked in the Office of the Governor as deputy legal counsel and later as chief legal counsel. We didn’t object because we didn’t know what would happen if we did, we just wanted to move forward with our case. Again remember our nerves were frazzled at the whole court experience and the man dropping dead in front of us. We also assumed that judges are unbiased and didn’t think it out.

When it comes to matters of recusal, if a judge has to ask, then he shouldn’t have to ask and should recuse himself of his own accord. The judge had grounds to recuse himself because he isn’t impartial in perception if not in fact.

When the State substituted a party, we tried to ask Young a question, but he was quite rude about it, wouldn’t allow us to ask anything because he said, “I’m not going to give you legal advice.” It wasn’t legal advice. It’s his courtroom and we should be able to ask the judge a question. So it was established that he was not accessible to us (T p 9-10).

We wanted Young to order Rhonda back to prison, and we started talking about it (T p 20), but he was finally getting the gist of it (T p 25) where Jenny said, “they claim that she’s not in prison for DWI, but Appendix 1 is very clear that she was in prison for DWI, and – and the State is claiming she was not in – in prison for DWI. The Court: I mean, I’m assuming that’s what – that’s what she went to jail for. I don’t think there’s any dispute about that. Mrs Bruns: They’re disputing it.” (T p 25). What we remember but not in the transcript, Young asked the defendants what she was in jail for, and they all looked to the floor, but Cheatwood answered, “she was convicted for felony serious injury by vehicle, which a component of that is driving while intoxicated…She earned down to the mandatory minimum.” (Tp  25). And that was the end of it. Young refused to address this admission that she earned time while in prison for DWI, that it was a HUGE part of our complaint. In follow up emails, he refused to admit her conviction was DWI. (R p 823-841). His emails were demoralizing to us. He wouldn’t provide any reasons or explanations for his rulings. He wouldn’t put Rhonda back in prison. He wouldn’t grant our objections. He sent an email that we hadn’t confirmed his emails (R p 836) but we had (R p 830, 832). Then after mistakenly admonishing us for not getting back to him timely, he waited a week to respond and deny our requests (R p 837-840, 841).

The fact that he didn’t know the DWI conviction was an issue is a clear indication that he didn’t read our papers beforehand.

Then he assumed we only used North Carolina pattern instructions to construct our complaint, but Jenny tried to explain it was the final overlay to ensure our complaint contained all the required elements to survive a motion to dismiss. (T p 26). He didn’t seem to get the gist of anything we were trying to get justice for. He was dismissive when Jenny tried to bring up another point, “I think I’ve heard enough.” (T p 30). Later Jenny said, “Objection.” And Young’s response was, “No, ma’am.” (T p 36).

By this point we didn’t feel fairness and tone was ugly. The judge was not courteous, we couldn’t ask questions, we were blocked from fully explaining our answers in response, he made no procedural accommodations for us, he wasn’t open to us, he was inflexible toward us, he used a tone and manner that was intimidating and disdainful. It felt very clear that he wasn’t interested in our issues or our pursuit of justice.

Then there was ex parte conduct. USAA handed the Judge some big binder or book or document or something, it wasn’t offered to us to inspect, nor was a copy offered to us. The judge just accepted it. We didn’t know what it was until reading the transcript, it says, “I have a copy of the Complaint with an actual Index to it.” We don’t know if that’s what it was. The other defendants as far as we know also didn’t look at it or get a copy. It seemed like we were supposed to be able to inspect it, but the Judge nor USAA offered it to us, and the other defendants didn’t say anything. Again, by that point we were shut down by the Judge and weren’t allowed to speak or ask questions. (T p 44).

Young said, “Tell me why it is that your case against USAA should not be dismissed if they have tendered the limits of the policy?” (T p 51). Again this demonstrates that he hadn’t read any of the filings beforehand. And as explained supra, tendering the limits of a policy is not the end of a claim. We are entitled to double what USAA offered as their last offer of “policy limits,” plus our bad faith claims against them comes with separate damages. We tried to explain, then Young said, “So I don’t understand the negligent entrustment issue.” (T p 51-52). USAA later admitted that “There’s one policy that covers two different individuals.” (T p 53). The Judge failed to try to understand the thrust of our arguments and positions.

At the end of the hearing, after the transcript, we had one question that would have helped him and all the parties, but he wouldn’t allow us to ask him a question at all, “No, it’s too late.” And he scarcely looked up at us.

Has Judge Young violated Canons of the Code of Judicial Conduct? Was he neutral and impartial? Were his judgments manifestly unsupported by reason or were they so arbitrary that they could not have been the result of a reasoned decision? The court’s power lies in its legitimacy and is a product of substance and perception. For us, the Trial Tribunal has failed because courts are forums for discovery of truth and administration of justice. Was the Judge concerned about discovering the truth and circumstances in our case?

ISSUE: DID THE TRIAL TRIBUNAL FAIL TO ACCURATELY CHARACTERIZE THE GRAVAEN OF THE ISSUES IN OUR COMPLAINT?

ISSUE: DID THE TRIAL TRIBUNAL VIOLATE 28 U.S. CODE § 455? (a)Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.

ISSUE: DID THE TRIAL TRIBUNAL’S CONDUCT AMOUNT TO ‘PASSING STRANGE’ IN ITS FAILURE TO ENFOCE RHONDA’S SENTENCE AS A DWI OFFENSE?

ISSUE: If we bear the burden of proving that prior charges and convictions exist, but the State fails to keep accurate and complete public records and scrubs the existence of others, how can we be expected to have justice fairly served when we are denied sound records for evidence?

Dismissal prevents us from discovery such as a subpoena to reveal Junior’s accomplices at the Burglary date for which he was charged with 6 felonies, reduced to 1 misdemeanor; these accomplices can affirm his involvement to support the belief by us and neighbors that Junior routinely burglarizes homes in Montibello to support his cocaine habit. What was the deal the State gave to Junior? Why do they trust his testimony to convict his compadres? Who are all of his co-burglars, and do they have knowledge about our burglaries? The State thwarts justice by putting their faith in this devil.

N.C. G.S. § 8C-1, Rule 404(b)(2005) allows for the admission of both subsequent and prior acts of the defendant…relevant to the currently alleged crime…constrained by requirements of similarity and temporal proximity…satisfying the similarity component by constituting substantial evidence tending to support a reasonable fining by the jury that the defendant committed a similar act… (qtd. in State v. Henry Harmon Mack, No. COA07-135, 2008). Where in this case the similar acts were allowed as evidence though committed two months apart.

“All the evidence, whether direct or circumstantial, must be considered by the trial court.” Carr I, 122 N.C. App at 372, 470 S.E.2d at 72.

In 18 USC 3575(e), Congress states, “[C]riminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” Cf. SEDIMA v. IMREX, 473 US 479 (1985). We alleged such patterns with Junior, and admissibility depends on the production of witnesses who have personal knowledge of these patterns, including his accomplices in the Burglary one block away two weeks later. Junior has also robbed with a gun at least one other house, according to neighbors, on Calamar, but since it isn’t in his public record, we don’t know if it has been scrubbed like his other missing records or if it was committed while he was a juvenile.

Junior’s drug habit and various larcenies are relevant to the issue of both intent and motive for our home burglary. State v. Hutchinson, 139 N.C. App. 132, 135      “Rule 404(b) of the North Carolina Rules of Evidence provides in pertinent part: Evidence of other crimes, wrongs, or acts is not admissible to prove character of a person in order to show hat he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident. N.C. Gen. Stat. § 8C-1, Rule 404(b) (1992). Nonetheless, the evidence offered can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” “Our Supreme Court in 1944 expressly stated that evidence of other offenses applies to both subsequent and prior acts of the defendant.” State v. Biggs, 224 N.C. 722, 726, 32 S.E.2d 354-55 (1944) “This rule applies equally to evidence of like offenses committed subsequent to the offense charged…if not too remote in…time” “Both intent and motive are proper purposes within the meaning of Rule 404(b). Defendant’s admissions of (1) shoplifting of a vacuum cleaner from K-Mart, (2) breaking and entering and larceny at Reidsville Glass Company, and (3) car theft are relevant to show his intent and motive for unlawfully entering the Watson residence. The fact that defendant sold a portion of stolen goods from the subsequent larcenies and used the funds to buy drugs tends to show defendant’s intent and motive during the alleged burglary. In addition, we note that the time span of one to two months between the burglary and the subsequent larcenies does not render the larcenies too remote in time to show intent and motive.”

It is reasonable to fear Junior because he is a menace to society. He is a serious and violent and habitual criminal offender who has no compunction about breaking the law. The Trial Tribunal didn’t take our complaint seriously, or our allegations as true. The message on our mailbox was a specific and targeted threat meant to cause us severe emotional distress, which it has done. This wasn’t a random baseball bat sort of vandalism, this was particular and clear with a message that conveys intent – where both sides of the black mailbox were carefully and boldy written with large white letters “Dick” and “Bitch” then it’s not a random act by a stranger, and it is unreasonable to think that someone would frame Junior because no decent person would write that to frame him while harming us in the process. Junior did it. The timing, the message, opportunity, desire, revenge, threat, not a joke. He carried it out in a public display of anger toward us. Junior is a continuing threat of harm to us. Junior’s message on our mailbox communicated a threat to us, not just insult and offensiveness. He offends public decency with those words on federal property – a mailbox is federal property. Junior’s message was a declaration express or implied of an intent to inflict loss or pain on us, and a reasonable person would think that this mailbox message is a threat. He is a menace to society, he doesn’t contribute positively to society, like his mother, and he will always cause trouble and harm, so our liberty and freedom of action is restrained out of fear of Junior since we must always look over our shoulders and have secured residences to protect ourselves from him.

The Trial Tribunal didn’t find our circumstantial evidence and testimony compelling, but we contend that reasonable minds of a jury could draw inference of Junior’s guilt from our evidence. Reasonable minds may differ as to what the mailbox message conveyed and the degree of threat that Junior intended and intends for us in the future. “Evidence qualifies as material when there is any reasonable likelihood it could have affected the judgment of the jury.” (qtd. in Wearry v. Cain, 577 U.S. ____(2016)).

ISSUE: DID THE TRIAL TRIBUNAL IMPROPERLY EVALUATE THE MATERIALITY OF THE MAILBOX IN ISOLATION RATHER THAN CUMULATIVELY? This is an intensely factual question, such as the timing of it occurring shortly after his mother’s sentence, the words deliberately written in large white letters on each side. Deduction that nobody else would do it. Junior has no regard for the law or the commission of gross criminal conduct. There is no other such story or evidence of a similar mailbox incident like ours with Junior. He intentionally defaced and damaged our mailbox property with directed and targeted criminal mischief at best and a vengeance threat at worst. Graffiti such as this exposes us to the threat of violence. The relevant evidence against Junior all point to make the existence of fact that Junior vandalized our mailbox. “[S]pecific instances of conduct are admissible to prove character or a trait of character only when the trait or character of a person is an essential element of a charge, claim, or defense.” State v. Baymon, 336 N.C. 748, 756, 446 S.E.2d 1,5 (1994). This is a basis for our prayer for a permanent restraining order against Junior. The mailbox and burglary are facts within Junior’s exclusive possession and without the ability to subject him to disposition and have a jury judge whether or not they believe him puts us at a disadvantage. No one can imagine any other obvious, alternative, lawful explanation to absolve Junior as the perpetrator of the mailbox vandalism and the court can draw reasonable inference that he is liable for vandalizing it. His words evince an intent to threaten. His background and criminal nature and retribution for his mother’s sentence, are the context that matters and the Trial Tribunal didn’t see the value that reasonable minds can only find Junior as the perpetrator. The message was a hate message. Junior is despised by everyone in the neighborhood because he is dangerous and violent. Mandatory injunction restores the status quo and requires action by a party, comparable to a writ of mandamus, and usually granted only where injury is immediate, pressing, irreparable, and clearly established. Automobile Dealer Resources, Inc. v. Occidental Life Ins. Co., 15 N.C. App. 634 (1972). A writ of mandamus is proper when a party seeks to have the appellate court compel the trial court to perform a particular act, usually a mandatory duty or ministerial act. It is usually issued in response to abuses of judicial power or “compel a judicial action erroneously refused.” Stevens v. Guzman, 140 N.C. App. 780, 538 S.E.2d 590 (2000) (citations omitted).

DID THE OTHER PARTIES FAIL TO SUPPORT OPPOSITION TO OUR POSITIONS IN THEIR MOTIONS? We showed the 2^nd letter as an immediate response in case USAA truly did make an error of misunderstanding, but Jenny’s claim still wasn’t acknowledged and processed, and this fact wasn’t addressed in any of their correspondence or court documents. They failed to demonstrate that they acknowledged Jenny’s claim.

Any person who is legally responsible for the bodily injury. Driver and owner are each covered by the policy. Each is discretely responsible for the bodily injury up to the limits per person and per occurrence. Jeremy and Jenny each have policy limit claims against each person legally responsible for our bodily injury, the driver and the owner, who happen to be married. Marriage is not a reasonable exclusion of coverage. There are two responsible, liable tortfeasors from whom Jeremy and Jenny each attempted to procure insurance benefits. USAA is trying to avoid liability when we the claimants have not been fully compensated by their policyholders – plural – who are legally responsible for our bodily injury. USAA wants to subsidize itself at our expense by denying coverage for both of their legally responsible policyholders. Our damages exceed $120K. USAA admitted that Rhonda and Senior each were liable, yet USAA denied us they were each liable to pay us on our claims against them and refused to disclose which policyholder they were tendering limits for. USAA cannot invoke such a defense to disclaim coverage against their insureds. Under Negligent Entrustment, each are a proximate cause of Jenny and Jeremy’s Bodily Injuries, which triggers policy limits for each policy holder – neither the driver nor the owner are immune from liability. Negligent entrustment is an independent theory of liability against the owner based on the act of entrustment rather than on the vicarious liability of the driver’s conduct. In most cases only the driver of a vehicle can be held liable for damages and injuries they cause. Except with negligent entrustment. We have cause to pursue our personal injury claims against both driver and owner. The owner is directly liable for his own negligence for allowing an incompetent driver to drive his vehicle. And obviously Rhonda is directly liable (she pled guilty, USAA admitted clear liability, no dispute b/c dozens of official witnesses). The law defines unfit driver as intoxicated, driver with a history of bad driving. Rhonda is not an excluded driver, USAA said that they were both covered. USAA is trying to merge their two separate liabilities to pad their own pockets at our expense. In other words, USAA has worked very hard to cheat us of the policy benefits that they owe us. USAA denied our claims against their liable driver’s insurance and liable owner’s insurance. The fact that Rhonda had been charged with 3 DWIs (that we know of since her criminal records are inaccurate and incomplete) prior to the calamity, has numerous speeding citations, and has a widely-known coke and other drug problems, this created a special duty on Senior not to entrust his vehicle to her. If each has insurance but the owner’s didn’t have enough to cover damages, then the driver’s policy is triggered to make up the difference. USAA didn’t offer to fully compensate us for their policyholders’ plural liability.

Lumsden v. U.S. 555 F. Supp.2d 580 (E.D.N.C. 2008)

Negligence element: The law imposes upon every person who enters upon an active course of conduct the positive duty to exercise ordinary care to protect others from harm and calls a violation of that duty negligence.” Council v. Dickerson’s, Inc.,64 S.E.2d 551 (N.C. 1951).

Negligence element: “[E]very man is in general bound to use care and skill in his conduct wherever the reasonably prudent person in his shoes would recognize unreasonable risk to others from failure to use such care.” Firemen’s Mutual Ins. Co. v. High Point Sprinkler Co., 146 S.E.2d 53, 60 (N.C. 1966).

Sheridan, 487 U.S. at 399 “[T]he attention of the trier of fact is focused on the Government’s negligent act or omission; the intentional commission is simply considered as part of the causal link leading to the injury.”

Negligent entrustment most commonly is “established when the owner of an automobile entrusts its operation to a person whom he knows, or by the exercise of due care should have known, to be an incompetent or reckless driver…who is likely to cause injury to others in its us…” Tart v. Martin, 540 S.E.2d 332, 334 (N.C. 2000) (quoting Swicegood v. Cooper, 459 S.E.2d 206, 207 (1995). “Based on his own negligence, the owner is ‘liable for any resulting injury or damage proximately caused by the borrower’s negligence.’ Id. (citation omitted). Tart makes clear that the entrustor/defendant must have been the owner of the vehicle. Id. At 333; see also Hill v. West, 657 S.E.2d 694, 697 (N.C. Ct. App. 2008).

ISSUE: BY ANALOGY DOES NORTH CAROLINA’S EMBRACE OF SOCIAL HOST AND DRAM SHOP LIABILITY FOR THE NEGLIGENT PROVISION OF ALCOHOL TO AN INTOXICATED PERSON WHO INJURES A THIRD PARTY THEREBY GIVING THAT PERSON A TORT CAUSE OF ACTION HOLDING THAT THIRD PARTY LIABLE FOR DAMAGES AND HARM ALSO JUSTIFY THE RATIONALE OF TRIGGERING TWO OPERATIONAL AUTOMOBILE LIABILTY POLICIES IN CASES OF NEGLIGENT ENTRUSTMENT? North Carolina codified the common law theory of negligent entrustment as applied to the purveyors of alcohol, recognizing liability for harm to a third party resulting from the provision of an intoxicant to an intoxicated person, see e.g., Hart v. Ivey, 420 S.E.2d 174, 178 (N.C. 1992). “The fundamental premise for [dram shop and social host theories] is consistent with the grave public policy concerns underlying the plaintiffs’ allegations…third party liability for injuries proximately resulting from a tortfeasor’s foreseeable negligence, fueled by intoxication caused by or enhanced by the third party’s knowing provision of the intoxicant to the tortfeasor”.  We alleged that Senior knew his wife was a reckless and dangerous driver.

Hall v. Toreros, II, Inc., 626 S.E.2d 861, 871 N.C. Ct. App. 2006), disc. Rev. allowed, (NO. 187PA06). A “special relationship between the defendant and the [tortfeasor]…imposes a duty upon the defendant to control the [tortfeasor’s] conduct…” Id. (citation omitted). “In such event, there is a duty upon the actor to control the [tortfeasor’s] conduct,’ and ‘to guard other persons against his dangerous propensities.” Id. quoting King v. Durham County Mental Health Authority, 439, S.E.2d 771, 774 (N.C. Ct.. App. 1994) (citation omitted).

In Harris v. Daimler Chrysler Corp., 638 S.E.2d 260, 265 (N.C. Ct. App. 2006), the court noted “recognized examples of special relationships such as (1) parent-child (quoting King) husband-wife would qualify and doesn’t need particularized findings given that ‘spousal privilege’ is a fundamental concept in law. See Restatement (Third) Torts – physical harm § 41.

Public Duty, Sovereign Immunity: “Whether or not state or local law enforcement officers would be liable under state law on the same or analogous facts is irrelevant under the Federal Tort Claims Act.” “This court rejected the government’s contention that there was ‘no liability for negligent performance of ‘uniquely governmental functions.’ The Government cannot rely on the “public duty” doctrine to avoid liability.

Respectfully Submitted, this the 1st day of August, 2016.

Jeremy and Jenny Bruns, Pro se

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"If it can be destroyed by the truth, 

it deserves to be destroyed by the truth."

 -- Carl Sagan