NO. COA14-143

NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

In the matter of:

JAMES SPENCER Wake County

No. 13 SPC 3751

Appeal by respondent from order entered 25 July 2013 by 

Judge Debra Sasser in Wake County District Court. Heard in the 

Court of Appeals 11 August 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Josephine Tetteh, for the State. 

Parker Poe Adams & Bernstein LLP, by Matthew W. Wolfe and 

Robert A. Leandro, for petitioner-appellee Holly Hill 

Hospital.

Appellate Defender Staples S. Hughes, by Assistant 

Appellate Defender Mary Cook, for respondent.

McCULLOUGH, Judge.

Respondent James Spencer appeals from an order of the trial 

court, involuntarily committing him to inpatient treatment for a 

period not to exceed sixty (60) days. Based on the reasons 

stated herein, we affirm the order of the trial court.

I. Background
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On 20 July 2013, Dr. Sharyn Comeau of Wake Med Hospital 

filed an affidavit and petition for involuntary commitment,

providing that respondent James Spencer was “mentally ill and 

dangerous to self or others or mentally ill and in need of 

treatment in order to prevent further disability or 

deterioration that would predictably result in dangerousness.” 

The affidavit stated that respondent

has ongoing psychosis and hyper religiosity 

concerning the mark of the beast and people 

in authority being satanic in some way. He 

continues to make decisions that compromise 

his medical care, currently his sodium [is] 

compromised to the point of needing medical 

intervention. He has multiple past 

psychiatric hospitalizations and he has a 

sister who his his [sic] guardian t in part 

[sic] of his medically compromising his 

health due to his lack of judgment and 

insight. He cannot be safely released into 

the community at this time.

On the same day, Dr. Comeau also completed an “Examination and 

Recommendation to Determine Necessity for Involuntary 

Commitment.” Dr. Comeau opined that respondent was mentally ill 

and dangerous to himself, and recommended inpatient commitment 

for ten (10) days. On 22 July 2013, respondent was admitted to 

Holly Hill Hospital.

A hearing was held at the 25 July 2013 session of Wake 

County District Court. Dr. Muhammed Saeed, a psychiatrist at 
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Holly Hill Hospital, testified that he had examined respondent 

on 23 July 2013. Dr. Saeed described respondent as “very 

psychotic, very paranoid, very agitated, not caring for self.” 

Dr. Saeed stated that respondent had multiple medical problems, 

but that the “most concerning is hyponatremia” which if it is 

not treated, could be life threatening. Dr. Saeed opined that 

respondent was mentally ill and suffering from schizophrenia. 

Respondent displayed extreme paranoid ideation, somatic 

delusions, and grandiose delusions. Dr. Saeed testified that 

respondent was unable to care for himself as demonstrated by his 

inability to restrict his fluid intake and his refusal to take 

his medication the two previous days. Dr. Saeed testified that 

he believed respondent was in need of further inpatient 

treatment at Holly Hill Hospital and recommended a commitment of 

sixty (60) days.

Respondent testified at the hearing. Respondent agreed 

that he suffered from schizophrenia but did not think he needed 

inpatient treatment and should have been discharged from Holly 

Hill Hospital.

On 25 July 2013, the trial court entered an involuntary 

commitment order. The trial court found by clear, cogent and 

convincing evidence that
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THE RESPONDENT CONTESTS COMMITMENT. The 

respondent acknowledges and recognizes that 

he suffers from a mental illness, that being 

schizophrenia. Symptoms include psychotic 

behavior (somatic delusions and grandiose 

delusions) and extreme paranoid behavior as 

well as agitation. However, the respondent 

does not appreciate the degree of his 

paranoia, and this has resulted in 

situations wherein he has threatened 

physical aggression in response to medical 

treatment.

The respondent suffers from hyponatremia. 

Low sodium levels can be a life threatening 

situation. The respondent disagrees with 

his health care provider’s assessment of his 

sodium levels. The respondent has been told 

to intake no more than 1 liter of fluid, 

which is about one quart (or 32 ounces). 

While the respondent is trying to . . . 

monitor his fluid intake, he believes that 

he can consume 56 ounces of fluid (7 eightounce cups).

Since his June 21, 2013 initial admission to 

Holly Hill, the respondent’s compliance with 

medication has been up and down. Most 

recently, for the past two days he has 

refused all medication, including medication 

to treat his mental illness and his 

hyponatremia. Without medical treatment, 

the respondent will suffer from ongoing 

psychotic decompensation. The respondent is 

not able to appropriately cope with stress, 

is not following recommendations, and won’t 

cooperate with doctor’s advice.

The respondent has poor insight into his 

paranoia and physical health condition. The 

respondent’s refusal to take his medication 

or follow his health care provider’s 

instructions regarding fluid intake 

demonstrate an inability to satisfy his need 
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for medical care. The respondent is unable 

to take care of himself without a structured 

environment. He is not currently stable from 

a mental or physical health perspective. 

There is a reasonable probability of the 

respondent’s suffering serious physical 

debilitation within the near future unless 

adequate treatment is given.

Based on the foregoing reasons, the trial court concluded that 

respondent was mentally ill and dangerous to himself. 

Respondent was committed to an inpatient facility for a period

not to exceed sixty (60) days.

On 22 August 2013, respondent filed notice of appeal from 

the 25 July 2013 order.

II. Discussion

On appeal, respondent argues that (A) his involuntary 

commitment was contrary to law because he was not evaluated by a 

second physician within 24 hours of admission to the Holly Hill 

Hospital in violation of N.C. Gen. Stat. § 122C-266 and that (B) 

the trial court erred by involuntarily committing respondent 

where he was not given notice of the commitment proceeding in 

violation of N.C. Gen. Stat. § 122C-264.

Before addressing the merits of respondent’s appeal, we 

first address the preliminary matter of whether his appeal is 

moot. Although the sixty (60) day commitment period provided in 

the 25 July 2013 order has expired, our Supreme Court has held 
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that “[t]he possibility that respondent’s commitment in this 

case might likewise form a basis for a future commitment, along 

with other obvious collateral legal consequences, convinces us 

that this appeal is not moot.” In re Hatley, 291 N.C. 693, 695, 

231 S.E.2d 633, 635 (1977). Therefore, we hold that 

respondent’s appeal is not moot and address the merits of his 

appeal.

A. Examination by a Physician

Respondent argues that the record does not demonstrate that 

he was examined by a second physician within twenty-four hours 

of being admitted to Holly Hill Hospital, in violation of N.C. 

Gen. Stat. § 122C-266. Respondent admits that while Dr. Saeed 

testified that he examined respondent on 23 July 2013, there was 

no written record of the examination demonstrating Dr. Saeed’s 

findings. As such, respondent contends that the 25 July 2013 

order should be vacated.

“It is well established that when a trial court acts 

contrary to a statutory mandate and a [party] is prejudiced 

thereby, the right to appeal the court’s action is preserved, 

notwithstanding [the party’s] failure to object at trial.” 

State v. Davis, 364 N.C. 297, 301, 698 S.E.2d 65, 67 (2010) 

(citation and quotation marks omitted).
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N.C. Gen. Stat. § 122C-266 provides that

(a) Except as provided in subsections (b) 

and (e), within 24 hours of arrival at 

a 24-hour facility described in G.S. 

122C-252, the respondent shall be 

examined by a physician. This 

physician shall not be the same 

physician who completed the certificate 

or examination under the provisions of 

G.S. 122C-2621 or G.S. 122C-2632. The 

examination shall include but is not 

limited to the assessment specified in 

G.S. 122C-263(c).

. . . . 

(c) The findings of the physician and the 

facts on which they are based shall be 

in writing, in all cases. A copy of 

the findings shall be sent to the clerk 

of superior court by reliable and 

expeditious means.

N.C. Gen. Stat. § 122C-266(a) and (c) (2013).

Our Court has previously held that “[t]he purpose of the 

second examination [pursuant to N.C. Gen. Stat. § 122C-266] is 

to protect the rights of a respondent who has been taken to a 

medical facility immediately prior thereto to insure that he was 

properly committed.” In re Lowery, 110 N.C. App. 67, 70, 428 

S.E.2d 861, 863 (1993).

 

1N.C. Gen. Stat. § 122C-262 is entitled “Special emergency 

procedure for individuals needing immediate hospitalization.”

2N.C. Gen. Stat. § 122C-263 is entitled “Duties of lawenforcement officer; first examination by physician or eligible 

psychologist.”
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Here, respondent concedes that Dr. Saeed’s testimony 

illustrates that he conducted an examination of respondent on 23 

July 2013, the day after he was admitted to Holly Hill Hospital. 

Dr. Saeed’s testimony indicated that he believed respondent to 

be mentally ill with a diagnosis of schizophrenia. Dr. Saeed 

also stated throughout his testimony that respondent was a 

danger to himself because he refused to take necessary 

medication, was unable to care for himself, and was unable to 

limit his fluids in order to keep his sodium level normal. On 

appeal, respondent does not contest the substance of Dr. Saeed’s 

testimony, nor does he argue that he was improperly committed

based on any insufficiency of Dr. Saeed’s examination. 

Reviewing the record, we are unable to find that respondent was 

prejudiced by the absence of a written record of Dr. Saeed’s 

findings. Based on the foregoing, we reject respondent’s 

argument that the involuntary commitment order should be 

vacated.

B. Notice of Hearing

Next, respondent argues that the trial court erred by 

failing to provide respondent with notice of the 25 July 2013 

commitment hearing in violation of N.C. Gen. Stat. § 122C-264.

N.C. Gen. Stat. § 122C-264(c) provides that
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[n]otice to the respondent, . . . shall be 

given as provided in G.S. 1A-1, Rule 4(j) at 

least 72 hours before the hearing. Notice 

to other individuals shall be sent at least 

72 hours before the hearing by first-class 

mail postage prepaid to the individual’s 

last known address. G.S. 1A-1, Rule 6 shall 

not apply.

N.C. Gen. Stat. § 122C-264(c) (2013).

In the present case, the trial court stated at the end of 

the 25 July 2013 hearing that “I’ve noted that concern that his 

power of attorney was not given the notice that [respondent] 

thinks they’re entitled to.” Nonetheless, the transcript of the 

hearing reveals that both respondent and his attorney were 

present at the hearing. Respondent was able to testify on his 

own behalf. Most importantly, respondent has not argued or 

demonstrated that the failure to receive notice of the hearing 

resulted in his inability to adequately prepare for the hearing. 

Because respondent has failed to establish that he was 

prejudiced by the failure to receive notice of the 25 July 2013 

hearing, his argument is overruled.

III. Conclusion

Where respondent has failed to demonstrate any prejudice by 

the lack of a written record of his second examination by a 

physician and by any failure to give respondent notice of the 25 

July 2013 hearing, we affirm the order of the trial court.
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Affirmed.

Judges STEELMAN and ERVIN concur.