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North Carolina Appellate Blog 
Highlights developments in the appellate courts that affect business interests in North Carolina.
Post Frequency: 0.9/day Last Entry: November 18, 2009 at 12:35:00 Recent Entries: 301
By Sean E. Andrussier
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COA Opinions Today
Posted on November 17, 2009Today the Court of Appeals published 13 cases, 9 of them civil. More on these cases later today.
Senate Confirms Andre Davis For 4th Circuit
Posted on November 10, 2009Last night, the senate confirmed Andre Davis, making him the newest judge on the 4th Circuit Court of Appeals. Read more at the NY Times here.
NC Supreme Court Publishes 2 Today
Posted on November 06, 2009The NC Supreme Court published 2 short cases today, NC DOT v. Blevins, affirming a COA evidence opinion, and State v. Philip Morris, addressing tobacco company payment obligations to certain farmers under a trust agreement.
COA Gives Green Light To Corporate Veil Piercing Claim
Posted on November 04, 2009The NC COA reversed a trial court's dismissal of a corporate veil piercing claim. The case is Fischer Inv. Capital, Inc. v. Catawba Dev. Corp.In Fischer, the trial court dismissed the creditor plaintiff's claim, among other things, for piercing the corporate veil of defendant Catawba Development Corporation...
No Parent Liability In Wrongful Death Suit
Posted on November 04, 2009Hamby v. Profile Products, a 2007 NC Supreme Court case, didn't create per se immunity from workplace injury liability for parent corporations of employers. Under the good samaritan doctrine, an employer's parent company may be liable for workplace injuries...
It's Official: Wynn and Diaz Nominated to 4th Circuit
Posted on November 04, 2009As we've noted before, Judge Wynn sits on the NC COA, Judge Diaz on the Mecklenburg Superior bench. More at the N&O here and at the Washington Post here.
NC COA Opinions Today
Posted on November 03, 2009Good morning. Busy day at the Court of Appeals, which published 35 cases today, 21 of them civil. More on these later today.
COA Opinions Today
Posted on October 20, 2009The COA published 14 cases, today, 10 civil. More on these soon.
2 NC Judges May Be Fourth Circuit-Bound
Posted on October 11, 2009The Fourth Circuit may soon experience a growth spurt. The N&O speculates today that 2 NC judges, James Wynn of the NC Court of Appeals and Albert Diaz of Mecklenburg County's Superior Court, may be Richmond-bound.
Secretary of Revenue Summons Enforcement Proceedings Not Subject To Civil Procedure Rules
Posted on October 11, 2009On Friday, the NC Supreme Court in In re Summons of Ernst & Young held that summons enforcement proceedings brought by the Secretary of Revenue to get documents related to a tax investigation are not subject to the North Carolina Rules of Civil Procedure...
NC Supreme Court Opinions Today
Posted on October 09, 2009Today NC Supreme Court filed 5 opinions, 2 civil, 3 criminal. More on these shortly.
COA: Failure to Properly Assist Poisoned Customer = Grounds for Punitive Damages
Posted on October 06, 2009Today the COA held that a restaurant's policy of filling out an incident report before assisting a customer who drank poisoned water was willful and wanton conduct justifying an award of punitive damages. The case is Everhart v. O'Charley's. O'Charley's accidentally served Ms...
Today's COA Opinions
Posted on October 06, 2009Good morning! The COA filed 20 published opinions this morning - six criminal, one juvenile, and the rest civil. We'll have more on these cases later today.
Major Changes to Appellate Rules This Week
Posted on September 28, 2009On October 1, some major changes to the North Carolina Rules of Appellate Procedure go into effect. While the changes touch on various areas, including electronic transcripts, pro hac vice admissions and secured leave, perhaps the most notable change is the abolishment of assignments of error...
Blog Calendars Back This Week
Posted on September 21, 2009Good morning. Our blog calendars are on their way back to the site. Look for them this week.
Judge Ann Marie Calabria Retiring from NC COA
Posted on September 17, 2009The N&O reports that N.C. Court of Appeals Judge Ann Marie Calabria won't seek re-election when her term expires in 2010.
No Liability For Failing To Require / Install Seat Belts
Posted on September 15, 2009In Biggers v Bald Head Island, the NC COA held today that the Village of Bald Head Island could not be held liable for failing to pass a law requiring that golf carts used in the village include seat belts. Likewise, the cart owner and rental agency could not be held liable for renting the cart without belts...
Barbara Milano Keenan's 4th Circuit Nomination Sent To Senate
Posted on September 15, 2009The White House announced yesterday that the President has nominated Barbara Milano Keenan to the 4th Circuit and has sent the nomination to the Senate. Keenan currently serves as a Virginia Supreme Court Justice and has since 1991.
Hello + Today's COA Cases
Posted on September 15, 2009Hi, folks, nice to be with you again. The COA filed 20 published opinions this morning--7 criminal, the rest civil. Look for more from us on these cases later today.
Belatedly Filed Record ? Dismissal, Executed Settlement Agreement = Enforceable
Posted on September 15, 2009In Hardin v KCS Int?l, Inc., the NC COA ruled today that an appeal should not be dismissed just because the record was filed late. The Court then also held that a plaintiff who had entered into a settlement agreement couldn't pursue claims that he had released...
COA: Filed Rate Doctrine Bars UDTP Claims Related to Workers' Comp Rates Set by Rate Bureau
Posted on September 15, 2009Today, in Stutts v. Travelers, the COA held that the "filed rate doctrine" applied and barred Plaintiff's claims of unfair and deceptive trade practices against his workers' comp insurer. Plaintiff applied for a workers' comp insurance policy through the NC assigned risk plan...
COA Majority: Assignment of Promissory Note Also Assigns Associated Guaranty
Posted on September 15, 2009Today the COA majority held that a guaranty executed contemporaneously with a promissory note "follows" the Note where the Note is later assigned to a party but the guaranty is not. The case is Self-Help Ventures Fund v. Custom Services.Self-Help, a Certified Development Company, made a loan to Custom Services through the US Small Business Administration's 504 loan program...
Oral Arguments in Citizens United v. FEC
Posted on September 10, 2009Yesterday, Citizens United v. FEC, a case challenging restrictions upon political spending by corporations, was reargued before the United States Supreme Court. A copy of the transcript can be found here and the audio can be found here. Observers of the Supreme Court believe that this case may result in sweeping changes to the law related to political advocacy by corporations.
Court of Appeals Discusses the Use of Pleadings and Discovery in Support of Summary Judgment
Posted on September 02, 2009In Asheville Sports Properties v. The City of Asheville, the plaintiff brought suit to recover funds spent on repairing damage that occurred when two sink holes developed on its property. The plaintiff contended that the city was liable for the repair costs because the City had a duty to maintain and repair the pipes...
North Carolina Court of Appeals Decisions
Posted on September 02, 2009Yesterday, the North Carolina Court of Appeals issued opinions in 27 matters. I hope to get notes up on some of the decisions shortly.I apologize for getting to these opinions a day late, but I was out of the office for the last few days on business.
Today's North Carolina Supreme Court Decisions
Posted on August 28, 2009Today, the North Carolina Supreme Court released 12 opinions. At first glance, none of the opinions seem to touch on issues relevant to this blog, but if there are any decisions of interest, we will be sure to post an update.
NC Court of Appeals Reiterates Requirements for Orders Denying Motions to Compel Arbitration
Posted on August 20, 2009On Tuesday, the North Carolina Court of Appeals issued two opinions dealing with the requirements for orders on motions seeking to compel arbitration. In Griessel v. Temas Eye Center and United States Trust Company v. Stanford Group Company, the Court of Appeals reversed and remanded orders denying motions to compel arbitration because the trial courts failed to include certain findings of fact in their orders...
Today's Court of Appeals Decisions
Posted on August 18, 2009This morning the North Carolina Court of Appeals issued 29 opinions. We will try to get something up regarding any relevant cases later today.
Fourth Circuit Eliminates Balance of Harships Test for Preliminary Injunctions
Posted on August 05, 2009Until today's decision in The Real Truth About Obama, Inc. v. Federal Election Commission, parties seeking a preliminary injunction in the Fourth Circuit had to satisfy the balance-of-hardship test set out in Blackwelder Furniture Company of Statesville v...
Today's Court of Appeals Decisions
Posted on August 04, 2009The North Carolina Court of Appeals issued decisions in 25 cases this morning. Nine of the cases involve criminal law and three involve domestic issues. We will try to get something up on these cases later today.
Quick Notes on Today's NC Court of Appeals Decisions
Posted on August 04, 2009Companies entering into contracts with governmental entities should double check to make sure that the contract contains all the statutorily required provisions or they may find themselves without a remedy for a breach of contract. In Crystal Transportation v...
Fourth Circuit Vacates Judgment in Favor of Defendants in PSLRA Case
Posted on August 03, 2009On Friday, the Fourth Circuit Court of Appeals issued a lengthy opinion addressing whether a plaintiff adequately plead scienter under the Private Securities Litigation Reform Act's heightened pleading standard. The case is Matrix Capital Management Fund v...
Court of Appeals Affirms Denial of Attorneys? Fees in Key Education Case
Posted on July 21, 2009This post is from our colleague, Bob Numbers, an expert in all things having to do with civil rights and state and local government:Today, the Court of Appeals affirmed the denial of a fee award to the Plaintiffs? counsel in the Leandro matter. The case is Hoke County Board of Education v...
Today's Court of Appeals Decisions
Posted on July 21, 2009The Court issued decisions in 20 cases this morning. Of those, 9 are criminal cases and 4 are domestic.One civil case that may be of interest concerns the denial of a fee award in the Leandro case which established the contours of the right to a public education...
Court of Appeals Spells Out Claims Settlement Rules for Insurers and Unfair Trade Practices
Posted on July 08, 2009In Martini v. Companion Property & Casualty Insurance Co., decided yesterday, the court of appeals considered the issue of when an insurer engages in unfair trade practices in connection with claims settlement.Section 58-63-10 of the General Statutes defines unfair practices by insurance companies but doesn?t, in itself, create a private right of action...
Today's NC Court of Appeals Decisions
Posted on July 07, 2009The Court of Appeals issued 35 published decisions this morning. Sixteen are in criminal cases. The civil cases, at least at first glance, don't appear to be plowing any major new ground.We'll try to post something on the important ones later today...
Today's NC Supreme Court Decisions
Posted on June 18, 2009Today the NC Supreme Court issued opinions. This batch doesn't include anything of note for this blog's purposes--i.e., decisions impacting businesses. The Court also issued orders on petitions. It appears the only PDR granted is in a case involving a prenuptial agreement.
Today's COA Decisions
Posted on June 16, 2009Today the NC Court of Appeals released 21 published decisions. Five are criminal cases. More on these decisions later.
COA: Eminent Domain Taking Is Still For a Public Purpose When A Private Entity Also Derives A Benefit From The Taking
Posted on June 16, 2009Today the COA held that a taking of property under eminent domain powers that serves a primary public purpose may also benefit a private entity. The case is Catawba County v. Wyant.Catawba County condemned property owned by the Wyatts and the Johnsons to build a sewer line connecting the county landfill to the city of Newton's sewer lines...
COA: Employment Contract Existed Between Temporary State Employees and State
Posted on June 03, 2009Yesterday the COA held that an employment contract existed between temporary state employees and a state regulatory body. The case is Sanders v. State Personnel Commission.Plaintiffs worked for the State as temporary employees through a temp agency for periods of time ranging from about a year to more than 6 years...
COA: School Board's Drug/Alcohol Testing Policy Is Unconstitutional
Posted on June 02, 2009Today the Court of Appeals (COA) held that a school board's policy mandating random drug and alcohol testing of all school board employees is unconstitutional because it violates the North Carolina Constitution's guarantee against unreasonable searches and seizures...
Today's Court of Appeals Decisions
Posted on June 02, 2009Today the NC Court of Appeals released 15 published decisions. Half the cases (eight) are criminal or domestic cases. More on today's cases later.
Virginia Senators Recommend Judge For Fourth Circuit
Posted on June 02, 2009Virginia Senators Webb and Warner are recommending that the president nominate Barbara Keenan to the Fourth Circuit. She's long been a justice on the Virginia Supreme Court.
COA Reverses Business Court's Denial Of Class Certification In TCPA Case
Posted on June 02, 2009Today the Court of Appeals (COA) reversed the Business Court's denial of class certification in a Telephone Consumer Protection Act (TCPA) case alleging that the defendant sent unsolicited fax advertisements to proposed class members. The case is Blitz v...
Today's COA Decisions
Posted on May 19, 2009The NC Court of Appeals released 19 published opinions today. Nine are criminal cases. Three are workers' and unemployment comp cases. As for the remaining seven, two are related corporate tax cases. More on today's cases later.
COA Rules Against Terminated Employee Based On Absence Of Consideration To Support Employment Agreement
Posted on May 19, 2009Today the Court of Appeals (COA) issued a split decision upholding a directed verdict for an employer in a contract action brought by a former VP of marketing after he was terminated. The case is Franco v. Liposcience, Inc. Judges Wynn and Hunter (the senior) were in the majority; Judge Ervin dissented...
COA Issues Significant Tax Decision Upholding Secretary's Authority To Force A Combination Of Corporate Entities For Tax Purposes
Posted on May 19, 2009Today the Court of Appeals (COA) issued a significant tax decision for corporations that stratify their operations into multiple entities. The case dealt with the power of the Secretary of Revenue to force a combination of the corporate entities for purposes of reporting taxable income...
4th Circuit: Insurer Had No Duty To Defend Gov't Contractor Against Claims Alleging Torture At Abu Ghraib
Posted on May 14, 2009Today the Fourth Circuit held that an insurer had no duty to defend its insured against claims alleging torture and abuse at Abu Ghraib and other prisons in Iraq. The case is CACI Int'l, Inc. v. St. Paul Fire & Marine Ins. Co.The insured, CACI, was a government contractor that provided logistical and intelligence support for U...
4th Circuit Lets "Market Timing" Securities Fraud Action Proceed Against Janus
Posted on May 07, 2009Today the Fourth Circuit reversed the Rule 12(b)(6) dismissal of a putative class action alleging securities fraud based on allegedly misleading prospectuses about "market timing." The case is In re Mutual Fund Investment Litigation.The suit was filed by shareholders of Janus Capital Group, Inc...
COA: Revised Uniform Arbitration Act Does Not Permit Interlocutory Appeals from Orders Compelling Arbitration
Posted on May 06, 2009Yesterday the COA held that the Revised Uniform Arbitration Act (RUAA) does not allow interlocutory appeals from orders compelling arbitration. The case is Bullard v. Tall House Bldg. Co.In this case the Bullards entered into a Building Agreement with Tall House that contained an arbitration provision...
Today's COA Decisions
Posted on May 05, 2009The NC Court of Appeals issued 30 published decisions today. Nine are criminal cases.More on today's cases later.
4th Circuit Clarifies Limitation Period In EEOC Cases
Posted on May 05, 2009Yesterday the Fourth Circuit decided when an EEOC decision becomes "final" for the purpose of commencing the 90-day limitation period for filing suit under 42 U.S.C. § 2000e-16(c). The case is Cochran v. Holder.The issue arose because the complainant filed a motion for reconsideration with the EEOC...
Today's NC Supreme Court Decisions
Posted on May 01, 2009Today the NC Supreme Court released orders on petitions as well as opinions. With respect to petitions, the Court granted review in two cases, one civil, one criminal. The civil case concerns a trial court's decision to revoke the pro hac vice admission of two Indiana attorneys on the ground that they engaged in improper behavior and violated the Rules of Professional Responsibility...
COA Limits Standing for Partners and Shareholders
Posted on April 21, 2009Today in Gaskin v. J.S. Procter Co., LLC the NC Court of Appeals (COA) clarified and limited the standing of limited partners (and shareholders) to sue in their individual capacities. In holding that the plaintiffs, who are limited partners, have no standing to sue the general partners and a third party--and that their lawsuit must be dismissed as a consequence--the COA limited the reach of Norman v...
Today's COA Decisions
Posted on April 21, 2009The NC Court of Appeals released 16 published opinions today. Nine are criminal cases. There's only one dissent (in a criminal case). More on these cases later.
COA Outlines Duties Members Of An LLC Owe To the LLC And Its Other Members
Posted on April 21, 2009Today the COA held that members of an LLC, in general, only owe duties to the corporation and not its members. The case is Kaplan v. O.K. Technologies.This case involved a corporate dissolution of a closely-held LLC, O.K. O.K. One of the disputes in dissolution was how the LLC should pay back loans made by one of the members (Kaplan)...
4th Circuit Holds That Investigatory And Remedial Expenses May Be Recovered As "Economic Damages" In CFAA Unauthorized Access Cases
Posted on April 16, 2009Today the Fourth Circuit in A.V. v. iParadigms, LLC held that a claimant bringing a civil action under the federal Computer Fraud and Abuse Act (CFAA), 18 U.S.C. 1030(g), for unauthorized computer access may recover consequential damages such as investigatory and remedial expenses...
4th Circuit Issues Pro-Creditor Ruling On Bankruptcy Code's Elusive "Hanging Paragraph"
Posted on April 13, 2009Today in In re Price the Fourth Circuit issued a significant ruling on the "hanging paragraph" in Chapter 13 of the Bankruptcy Code (11 U.S.C. § 1325(a)). The Fourth Circuit decided how to apply the hanging paragraph to a secured claim when a portion of the claim relates to the financing of negative equity -- which, in a car transaction, refers to the difference between the value of the trade-in vehicle and the amount of the buyer?s preexisting debt on that trade-in...
COA: County Where Government Official Is "Charged With Carrying Out Duties" Is Not Proper Venue
Posted on April 08, 2009Today the COA held that where a public official is a party to an action, venue is proper where the cause of action arose and not where the official is "charged" with his or her duties. The case is Ford v. Paddock.In this highly-publicized case, a four-year-old child was killed by his adoptive mother...
COA Invalidates Non-Compete
Posted on April 07, 2009Today the NC Court of Appeals (COA) held a non-compete agreement unenforceable because it wasn't reasonably tailored to protecting the employer's legitimate business interests. The case is Hejl v. Hood, Hargett & Assoc., Inc.Hejl was an account rep for insurance services...
Today's COA Decisions
Posted on April 07, 2009Today the NC Court of Appeals released 38 published opinions. Ten are criminal cases. Five are domestic cases. There appears to be only one dissent--the first dissenting opinion of new appellate Judge Beasley (in a domestic case). There don't seem to be a lot of noteworthy cases in this mix...
COA Considers Factors Determining Timeliness of Motion for Relief From Judgment
Posted on April 07, 2009Today the COA held that a Rule 60(b) motion for relief from judgment's timeliness is determined in part by "extraordinary circumstances" surrounding the judgment. The case is Sharyn's Jewelers v. Ipayment, Inc.In this case, Sharyn's took telephone orders and charged them to the same credit card for about three months...
COA: Lack of Reasonable Reliance Defeats Actual Reliance Element Required for UDTP Claim
Posted on April 07, 2009Today the COA held that lack of reasonable reliance on a misrepresentation defeated the element of actual reliance required for an unfair and deceptive trade practices (UDTP) claim based on the misrepresentation. The case is Sunset Beach Development v...
4th Circuit Overturns Rule 11 Sanctions Against FEMA Attorney
Posted on April 04, 2009Yesterday in In re: Bees the Fourth Circuit held that a S.C. district judge abused her discretion in entering Rule 11 sanctions against a FEMA attorney. Even though the FEMA attorney submitted a misleading declaration, made a misleading statement in a brief, and made misleading comments at a motions hearing, the Fourth Circuit's per curiam opinion held that sanctions shouldn't have been entered...
4th Circuit Lets First Amendment Case Go Forward Against Baltimore Police
Posted on April 02, 2009Today, in Andrew v. Clark, the Fourth Circuit reversed the 12(b)(6) dismissal of a First Amendment suit brought by a Baltimore police officer claiming that officials with the Baltimore Police Department (BPD) retaliated against him for providing to the Baltimore Sun an internal memo he had written...
4th Circuit Rejects Challenge To MD Occupational Licensing Scheme
Posted on March 29, 2009On Friday, in Brown v. Hovatter, the Fourth Circuit rejected constitutional challenges to a Maryland law that restricts licenses for morticians and funeral homes. The statute prohibits corporate ownership of a mortician's license or funeral home; and it prohibits unlicensed individual ownership of funeral homes...
Today's NC Supreme Court Decisions
Posted on March 20, 2009Today the NC Supreme Court issued orders and opinions. The Court granted discretionary review in one case, it appears.And the Court issued decisions (opinions or per curiams) in nine cases, four of them criminal cases (I'm not counting the two additional cases where the Court ruled that discretionary review was improvidently allowed)...
4th Circuit Issues SCA Ruling On Employer's Access Of Employee's Personal Email Account
Posted on March 19, 2009Yesterday in Van Alstyne v. Electronic Scriptorium Ltd. the Fourth Circuit addressed the Stored Communications Act (SCA), 18 U.S.C. 2707, and held that a plaintiff suing under the SCA must prove actual damages to be eligible for statutory damages. The Court held, however, that a plaintiff need not prove actual damages to recover punitive damages or attorney's fees...
Yesterday's COA Decisions
Posted on March 18, 2009For this blog's purposes, there isn't much noteworthy in yesterday's stack of cases. There are some zoning cases and some contributory negligence cases. There's a discovery case holding (consistent with the so-called "Sporck doctrine") that a lawyer's selection of information from documents (including verbatim notes) may be entitled to opinion work product protection even though the underlying documents themselves aren't protected work product...
Today's COA Decisions
Posted on March 17, 2009Today the NC Court of Appeals released 22 published decisions (in 21 cases; two opinions arise from the same case). Nine are in criminal cases. More on these cases later.
4th Circuit Repudiates NLRB, Rules For Employer In Case Of Employee Dismissed For Profane Remark About Company VP
Posted on March 14, 2009Yesterday the Fourth Circuit issued a significant decision repudiating the NLRB. The NLRB had ruled that an employer had unlawfully discharged an employee for making a profane remark about the company's VP during a period when the union was renegotiating a collective bargaining agreement...
Fourth Circuit Upholds Large FMLA Judgment Against Pfizer
Posted on March 08, 2009This week in Dotson v. Pfizer the Fourth Circuit upheld a massive judgment in a Family and Medical Leave Act (FMLA) case involving adoption-related leave by an employee who took time off to adopt a child from Russia and who was later fired. Dotson claimed FMLA retaliation...
4th Circuit Reiterates: Don''t Transform Contract Actions Into UDTPA Claims, Particularly In Disputes Between Sophisticated Businesses
Posted on March 08, 2009This past week the Fourth Circuit reiterated this principle: a case that at its core is a dispute over contractual performance shouldn't give rise to a claim under N.C.'s unfair and deceptive trade practices act, G.S. 75-1.1 ("UDTPA"). The case is PCS Phosphate Co...
COA: Damages and Attorneys' Fees Cannot Be Obtained Through Rule 60 Motion or Tax Foreclosure Action
Posted on March 04, 2009COA: Agreement Governing Negotiations for Possible Work Is Binding Without Statement of Work
Posted on March 03, 2009Last Week's COA Decision Affecting Charter Schools
Posted on February 24, 2009Last week we didn't post about a NC Court of Appeals (COA) decision involving education law: Sugar Creek Charter School, Inc. et al. v. Charlotte-Mecklenburg Bd. of Educ. (?Sugar Creek II?).We have colleagues in our firm who practice education law, and one of them, Sarah Motley of Charlotte, prepared this post about the case...
Today's COA Decisions
Posted on February 17, 2009Today the NC Court of Appeals released 15 published decisions. Frankly there's nothing of significance here to write about. Today's prize for the most bizarre case: a statutory rape case where the defendant won a new trial. Defendant lived with his wife and their kids, and with his girlfriend and her kids...
Fourth Circuit Issues Bankruptcy Decision On Commodities "Swap Agreements"
Posted on February 12, 2009Yesterday the Fourth Circuit decided a bankruptcy case, In re National Gas Distributors, involving commodities "swap agreements." The case drew a number of amicus briefs. Here's an article about the case by Zach Lowe courtesy of Am Law Daily.
Supreme Court Finds Personal Jurisdiction Against Foreign Corporation's CEO Based On His Corporate Contacts With NC
Posted on February 08, 2009On Friday the NC Supreme Court issued a per curiam decision on personal jurisdiction. The Court reversed a Court of Appeals (COA) decision that rejected personal jurisdiction against a foreign corporation's CEO. The Supreme Court adopted the dissenting opinion of (former) COA Judge Arrowood...
NC Supreme Court Decisions Today
Posted on February 06, 2009Today the NC Supreme Court released its first orders and opinions of 2009. The Court granted discretionary review in a handful of cases. And the Court issued decisions in five cases--four of which are summary per curiam affirmances or reversals. The five cases are: a criminal case, two parental rights cases, a case involving conversion by the executor of an estate, and a dispute over personal jurisdiction...
COA Majority: Party Represented By Attorney in Real Estate Transaction Bears the Risk of Loss When Attorney Embezzles Sale Proceeds
Posted on February 04, 2009Tuesday in Johnson v. Schultz, the COA held that the party who was represented by an attorney who embezzles sales proceeds from a real estate transaction bears the risk of loss.In this case the Schultzes entered into contract with Johnsons to the Johnsons' purchase real estate...
COA: Insurance Policies Covering Car Involved in Florida Accident Are Governed by the NC Uniform Arbitration Act
Posted on February 04, 2009Tuesday the COA held that insurance policies covering a car involved in an accident in Florida were governed by the North Carolina Uniform Arbitration Act. The case is N.C. Farm Bureau v. Sematoski.This case involved a insurance coverage dispute stemming from a car accident in Florida in which Semtoski was injured...
COA Decisions Today
Posted on February 03, 2009The NC Court of Appeals released published opinions in 18 cases today, 10 of which are criminal cases. More on today's decisions later.
COA Upholds Rule 11 Sanctions Against Lawyers For Disparaging Comments
Posted on February 03, 2009Today in Johns v. Johns the Court of Appeals (COA) upheld Rule 11 sanctions against a law firm based on the disparaging content of a motion it filed in the context of a hotly contested divorce proceeding. The motion, according to the trial court, was "filled with unverified, irrelevant and disparaging comments about the personal history and character of" the wife and her teenage daughter from an earlier marriage, including comments about the wife's issues with ex-husbands...
COA: Express Contract Provisions on Indemnity Control Where Parties Were Found Liable On Different Grounds
Posted on February 03, 2009Today in Charlotte Motor Speedway v. Tindall Corp. the Court of Appeals (COA) held that indemnification provisions in a construction contract prevented Speedway from recovering anything from Tindall on an "implied-in-law" theory of indemnification. This case arose out of the 2000 collapse of a pedestrian walkway that went from the Charlotte Motor Speedway to its parking lot...
COA Rejects Fraud And UTPA Suit By Company Executives Arising From Company's Asset Sale
Posted on February 03, 2009Today in Schlieper v. Johnson, an appeal arising from the Business Court, the Court of Appeals (COA) affirmed the dismissal of a fraud and UTPA suit brought by two former executive employees against the company for which they worked and the CEO. The suit arose from the company's asset sale, which produced $2 million for these plaintiffs...
NC Supreme Court Decisions Due This Friday
Posted on February 02, 2009The NC Supreme Court is scheduled to release orders on petitions on Feb. 6, and we expect the Court to release opinions that day too. This will be the Court's first release in 2009. The Court's website features a cool new format for opinions: on one page, no only can you link to the opinion for a case (in searchable PDF format now); you can also link to the docket for the case and to the underlying Court of Appeals decision...
COA: Indirect Purchaser's Price Fixing Suit States Sufficient Claim Even Where Task Of Proving Damages Is "Daunting"
Posted on January 22, 2009Wednesday the NC Court of Appeals (COA) held that an indirect purchaser of products containing a chemical compound produced by the defendants could sue defendants for price fixing of that compound under Chapter 75, North Carolina's unfair and deceptive trade practices statute...
4th Circuit Finds Defendant Defaulted On Right To Arbitration
Posted on January 21, 2009Today in Forrester v. Penn Lyon Homes the Fourth Circuit held that the defendant defaulted on its right to compel arbitration under the Federal Arbitration Act (FAA) because, before moving to compel arbitration, the defendant engaged in extensive litigation measures that caused the plaintiffs actual prejudice...
Today's COA Decisions
Posted on January 21, 2009Today the NC Court of Appeals released decisions today (a one-day delay since yesterday was a snow day. There are 14 published decisions. There's not much of note in this stack, since 10 of the 14 decisions are criminal, parental rights, and workers' comp cases...
Split 4th Circuit Rejects CAFA Removal
Posted on January 17, 2009In yet another case on removal under the Class Action Fairness Act (CAFA), the Fourth Circuit yesterday held that the defendant didn't establish CAFA's amount-in-controversy requirement. The case is Barnikowski v. NVR, Inc. Judge Gregory wrote the majority opinion...
4th Circuit Rejects Pitt County's Suit Against Online Travel Companies
Posted on January 15, 2009Yesterday the Fourth Circuit rejected a class action lawsuit by Pitt County, NC, which was based on the failure of online travel companies to pay the County's hotel occupancy tax. The case is Pitt County v. Hotels.com, L.P. The Court held that online travel companies aren't subject to the tax because they're not "retailers" (under the State's sales tax code) since they aren't businesses of a type similar to "hotels, motels, tourist homes, [or] tourist camps," as the statute provides...
Filling Judge Phillips's Seat On The 4th Circuit
Posted on January 12, 2009Here's a piece commenting on the "Phillips seat" on the Fourth Circuit, which has been vacant since 1994, when North Carolina's J. Dickson Phillips took senior status.
4th Circuit Tosses Securities Fraud Class Action Against Deloitte
Posted on January 07, 2009Two days ago the Fourth Circuit rejected a securities fraud class action arising out of fraudulent accounting by Royal Ahold. The case is Public Employees' Retirement Assn. of Co. v. Deloitte & Touche LLP. The opinion was written by Judge Wilkinson, and it has the flavor of the opinion he issued two weeks ago rejecting another securities fraud action (on which we posted here)...
COA Invalidates A Non-Compete And Non-Solicitation Agreement, While Limiting Trade-Secrets Damages
Posted on January 07, 2009Yesterday the NC Court of Appeals (COA) invalidated a noncompete and nonsolicitaiton agreement as facially overbroad. The case is Medical Staffing Network, Inc. v. Ridgway. The decision required the COA to vacate a seven-figure judgment that the former employer obtained against the former employee and his new employer...
COA Applies Foreign Workers' Comp Act To Bar Action For Local Injury
Posted on January 07, 2009Yesterday the NC Court of Appeals (COA) issued an important decision barring tort claims by workers of foreign (out of state) companies who are injured in NC. The case is Burton v. Phoenix Fabricators and Erectors, Inc. Judge Geer wrote the opinion.Under NC law, the receipt of workers' comp benefits doesn't bar the injured employee from bringing a civil action against an NC employer (a so-called Woodson claim)...
COA Rejects Fraud, UTPA Claims In Products Case
Posted on January 07, 2009Yesterday in Hospira Inc. v. Alphagary Corp. the NC Court of Appeals (COA) rejected fraud, negligent misrep, and UTPA deception claims brought by a manufacturer of medical devices. It's an important case on the limits of indirect fraud and deception--i...
COA: Wage & Hour Default Judgment Triggers Double-Damage Liability
Posted on January 07, 2009Yesterday the NC Court of Appeals (COA) upheld a $355,000 Wage & Hour Act judgment based on a default judgment that was entered after the former employer-defendant failed to answer the complaint. The defendant argued that its records showed it actually overpaid plaintiff by $32,777, but it was saddled with a $355,000 judgment nonetheless...
COA Dismisses Inverse Condemnation Appeal As Interlocutory
Posted on January 07, 2009In Wilfong v. NC DOT, property owners conveyed part of their property to DOT so that it could widen a road. The owners then alleged that the highway had been raised higher than planned and made their driveway too steep to reasonably access their property...
COA Upholds Arbitration Clause Dealing With Dissolution of Partnership
Posted on January 07, 2009In In re Jarvis & Sons, members of a general partnership appealed the trial court's ruling denying parts of their motion to compel arbitration in a dispute over dissolution of the partnership. The trial court found that the paragraph of the arbitration agreement saying that the withdrawing partner "shall have the right to force compulsory dissolution by court order" exempted the means of dissolution from arbitration, and decided that the partnership should be dissolved by sale...
COA Holds That Issues Regarding Decline In Property Value After DOT's Construction Of A Median Fall Within The Trial Court's Discretion
Posted on January 07, 2009In Dept. of Trans. v. Blevins, the DOT filed a complaint and declaration of taking to widen a highway that ran in front of Blevins' convenience store. The taking involved 279 square feet of property and a drainage easement, and the widening involved construction of a median that Blevins claimed would further reduce the value of his property...
COA Releases First Decisions Of 2009
Posted on January 06, 2009Today the NC Court of Appeals released 27 published opinions, of which eight are criminal. More on these cases later.
Next Batch Of NC Court of Appeals Opinions: Jan. 6
Posted on December 29, 2008The next opinions are due Jan. 6.
The New COA
Posted on December 29, 2008As we enter the new year, we'll see a different Court of Appeals.Three judges (Tyson, McCullough, and Arrowood) are out, so we'll see three new judges: Beasley, Hunter, and Ervin.The Court will have two Bob Hunters, which may be quite confusing.The Court will consist overwhelmingly of Democrats (60%)...
Divided Fourth Circuit Upholds Convictions Based On Obscene Cartoons And Email Text
Posted on December 18, 2008Today, in a case argued more than a year ago, a divided Fourth Circuit upheld criminal convictions for (1) receiving over the span class="blsp-spelling-error" id="SPELLING_ERROR_0"internet/span obscene Japanese cartoons depicting minors engaged in sexually explicit conduct and (2) receiving and sending obscene text-only emails describing child sex fantasies...
Supreme Court's Next Likely Release Date: Feb. 6, 2009
Posted on December 18, 2008The NC Supreme Court likely will next release orders on petitions and opinions on February 6, 2009. The Court issued orders and opinions last Friday (see below).
COA Issues Important Decision On Assignments Of Error
Posted on December 17, 2008Yesterday in a href="http://www.aoc.state.nc.us/www/public/coa/opinions/2008/051183-2.htm"Jones v. span class="blsp-spelling-error" id="SPELLING_ERROR_0"Harrelson/span amp; Smith Contractors/a the Court of Appeals (span class="blsp-spelling-error" id="SPELLING_ERROR_1"COA/span) issued a decision that could be important in the debate on assignments of error...
COA: Trial Court Erred In Kicking Out Soccer Injury Suit
Posted on December 17, 2008Yesterday in a href="http://www.aoc.state.nc.us/www/public/coa/opinions/2008/070647-1.htm"span class="blsp-spelling-error" id="SPELLING_ERROR_0"Allred/span v. Capital Area Soccer League, Inc./a the NC Court of Appeals (span class="blsp-spelling-error" id="SPELLING_ERROR_1"COA/span) revived a personal injury action brought by a soccer spectator...
Divided COA Rejects Whistleblower Suit
Posted on December 17, 2008Yesterday in a href="http://www.aoc.state.nc.us/www/public/coa/opinions/2008/080030-1.htm"Helm v. Appalachian State University/a the Court of Appeals affirmed the dismissal of a former App State employee under the State's span class="blsp-spelling-error" id="SPELLING_ERROR_0"Whistleblower/span Act because she failed to adequately allege (as an essential element) that she span class="blsp-spelling-corrected" id="SPELLING_ERROR_1"engaged/span in a "protected activity...
COA Sanctions Appellant's Counsel For Filing Record On Appeal Different From The Proposed Record That Counsel Served On Appellees
Posted on December 17, 2008Yesterday the Court of Appeals (span class="blsp-spelling-error" id="SPELLING_ERROR_0"COA/span) sanctioned appellant's counsel for filing a record on appeal that differed from the proposed record that was served on the span class="blsp-spelling-error" id="SPELLING_ERROR_1"appellee/span...
Split COA Rules For Tobacco Companies In MSA-Related Dispute
Posted on December 17, 2008Yesterday in a href="http://www.aoc.state.nc.us/www/public/coa/opinions/2008/071572-1.htm"State v. Philip Morris USA, Inc./a, a divided Court of Appeals (span class="blsp-spelling-error" id="SPELLING_ERROR_0"COA/span) held that the Business Court erred in interpreting a trust agreement that resulted from the tobacco Master Settlement Agreement...
COA: No Personal Jurisdiction Over Korean Companies
Posted on December 17, 2008Yesterday the NC Court of Appeals (span class="blsp-spelling-error" id="SPELLING_ERROR_0"COA/span) held that the trial court erred in exercising personal jurisdiction over two Korean companies. The case is a href="http://www.aoc.state.nc.us/www/public/coa/opinions/2008/080242-1...
Yesterday's COA Decisions
Posted on December 17, 2008Yesterday the NC Court of Appeals released a href="http://www.aoc.state.nc.us/www/public/coa/opinions/coa2008.htm"33 published decisions/a. About half are criminal cases or domestic cases (parental rights, juveniles, child support, etc.). br /br /More on these decisions later.
COA Allows Partnership Dispute To Proceed
Posted on December 17, 2008Yesterday in a href="http://www.aoc.state.nc.us/www/public/coa/opinions/2008/080578-1.htm"span class="blsp-spelling-error" id="SPELLING_ERROR_0"Wiggs/span v. span class="blsp-spelling-error" id="SPELLING_ERROR_1"Peedin/span/a the NC Court of Appeals (span class="blsp-spelling-error" id="SPELLING_ERROR_2"COA/span) reversed the trial court's grant of summary judgment for a defendant (span class="blsp-spelling-error" id="SPELLING_ERROR_3"Peedin/span) who denied the existence of a partnership formed by her late husband and argued that any such partnership dissolved upon his death and couldn't be imputed to her...
Fourth Circuit Issues Another CAFA Decision Against Removal In First-Impression Case
Posted on December 16, 2008Today the Fourth Circuit issued its third decision this week on removal under the Class Action Fairness Act (CAFA). And once again the Court rejected removal. The case is Palisades Collections LLC v. Shorts.This case began as a collection action filed by a collection agency for AT&T Mobility against a cell phone service customer...
Supreme Court Affirms COA Award of Attorneys' Fees
Posted on December 15, 2008In Terry's Floor Fashions, Inc. v. Crown Gen. Contr'rs, Inc., the NC Supreme Court on Friday affirmed a split COA decision affirming an award of attorneys' fees to plaintiff in a subrogation-lien case brought by a unpaid subcontractor. The subcontractor had done work on a dentist's office...
Fourth Circuit Rejects CAFA Diversity Jurisdiction
Posted on December 14, 2008On Friday, in a pair of class actions against payday lenders who removed the cases to federal court under the Class Action Fairness Act (CAFA), the Fourth Circuit held that federal jurisdiction was lacking under CAFA's "minimal diversity" provision. Thus, the cases will proceed in state court...
Fourth Circuit Applies Stringent Pleading Rules To Reject Securities Action
Posted on December 14, 2008On Friday, in Cozzarelli v. Inspire Pharma. Inc., the Fourth Circuit rejected a securities fraud action. This is an important case on pleading requirements and the application of Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S.Ct. 2499 (2007)...
Supreme Court Splits 4-3 In Medicaid Lien Case
Posted on December 13, 2008Yesterday, in Andrews v. Haygood, the NC Supreme Court (reviewing a divided COA decision) split 4-3 on this issue: when a Medicaid beneficiary settles with a tortfeasor for a lump sum and the settlement terms don't establish the portion allocated to past medical expenses (versus future medical expenses, pain and suffering, etc...
Supreme Court Grants Discretionary Review In Personal Jurisdiction Case
Posted on December 13, 2008Yesterday the NC Supreme Court granted discretionary review in a case in which the Court of Appeals (COA) held there was no personal jurisdiction over the defendant under the longarm statute. The case is Brown v. Ellis, and the COA decision is here. It's an alienation of affections and criminal conversation case...
Supreme Court Rules In Favor Of Property Owners
Posted on December 13, 2008Yesterday in Chapel Hill Title and Abstract Co. v. Town of Chapel Hill, the Supreme Court ruled in favor of property owners in their battle with Chapel Hill. Petitioners wanted to build a home in Chapel Hill on a vacant lot zoned for residential use...
SCT Embraces Broad Standing Rule For Zoning Cases
Posted on December 13, 2008Yesterday in Mangum v. Raleigh Bd. of Adjustment the NC Supreme Court held, contrary to the Court of Appeals, that property owners in close proximity to a proposed business had standing to challenge a special use permit. The crux of the issue was this: in order to have standing to challenge a zoning decision, do adjacent or nearby property owners have to establish that approval of a permit would diminish their property values; or can they rely on other, more generalized concerns and secondary effects such as increased traffic, parking, and safety concerns? The majority, in an opinion written by Justice Brady, held that adjacent or nearby property owners can have standing without establishing a diminution in property values...
Supreme Court Adopts COA Dissent Saying Justifiable Reliance on MLS Listing Is A Jury Question
Posted on December 13, 2008In Crawford V. Mintz, the COA majority reversed a jury verdict and held that defendants real estate agent and broker did not negligently represent a home's features because plaintiffs were not justified in relying on an MLS listing that stated the home was connected to the city sewer...
Today's NC Supreme Court Decisions
Posted on December 12, 2008Today the NC Supreme Court released orders on petitions and opinions.The Court granted discretionary review in several criminal cases and in a couple of civil cases: a workers' comp case in which the plaintiff lost below, and a personal jurisdiction case in which the Court of Appeals (COA) found no personal jurisdiction...
4th Circuit Slashes Attorneys' Fee Award
Posted on December 07, 2008This past week (Dec. 3) the Fourth Circuit in Grissom v. The Mills Corp. vacated a $325,500 award in attorneys' fees and costs that was entered following plaintiff's acceptance of a Rule 68 offer of judgment (for $130,000) in a SOX whistleblower case...
4th Circuit Rules Against Employee In SOX Whistleblower Suit
Posted on December 07, 2008This past week (Dec. 3) the Fourth Circuit, in Platone v. U.S. Dep't of Labor, concluded that the plaintiff's allegations to company management didn't qualify for whistleblower protection under the Sarbanes-Oxley Act (SOX), 18 U.S.C. § 1514A, because her allegations didn't definitively and specifically relate to fraud against shareholders...
4th Circuit: Arbitration Award May Be Final, Binding, And Judicially Enforceable Even If Arbitration Agreement Doesn't Explicitly Say So
Posted on December 07, 2008This past week (Dec. 3) the Fourth Circuit decided a Federal Arbitration Act (FAA) case, Qorvis Communications, LLC v. Wilson, involving a failed attempt to prevent judicial confirmation of an arbitration award.Qorvis sued Wilson, its former executive employee, for breach of his employment agreement...
NC Supreme Court To Issue Decisions Dec. 12
Posted on December 05, 2008The NC Supreme Court is scheduled to issue orders on petitions on Friday Dec. 12. We expect the Court to release its next batch of opinions that day too.
COA Says Failure to Deliver Insurance Contract is Not a Per Se UDTP
Posted on December 03, 2008In Defeat the Beat, Inc. v. Underwriters at Lloyd's London, the COA held that a failure to promptly deliver a copy of an insurance policy to an insured party is not a per se unfair or deceptive act. The plaintiff contended that defendants committed an unfair trade practice by failing to provide plaintiff with a copy of its insurance policy in violation of Section 58-21-45(a) of the Surplus Lines Act, which states "As soon as surplus lines insurance has been placed, the producing broker or surplus lines licensee shall promptly deliver the policy to the insured...
COA Decisions Today
Posted on December 02, 2008Today the NC Court of Appeals released 19 published opinions. These include seven criminal cases (including a juvenile case), three workers' comp cases, two parental termination cases, and an equitable distribution case, plus six other civil cases. There were four dissents: three in workers' comp cases, one in a parental termination case...
COA Says Arbitration Clause Governing "Any Dispute" Includes Claim for Unfair and Deceptive Trade Practices
Posted on November 19, 2008In Linsenmayer v. Omni Homes, an arbitration clause in a construction contract said that arbitration was the proper avenue should "any dispute arise relative to the performance of this contract that the parties cannot resolve[.]" The COA held that ?any dispute? included plaintiffs' claim that defendants were liable for unfair and deceptive trade practices, and the arbitrator could thus award treble damages...
Appellate Rules Violations Fail Dogwood Test, Sanctions Imposed
Posted on November 19, 2008In Weeks v. Select Homes, Inc., the COA held that the plaintiffs' Appellate Rules violations rose to the level of a ?substantial failure or gross violation? under the standard established in Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co. (NC 2008)...
COA Says Rule 59 Motions for a New Trial May Be Filed Before Entry of Judgment
Posted on November 19, 2008Yesterday the COA addressed an issue of first impression for North Carolina courts ? whether a trial court can hear a Rule 59 motion for new trial filed before the entry of judgment. The case is Xiong v. Marks. Rule 59 says that a motion for a new trial shall be served no later than 10 days after entry of the judgment, but does not specify whether a motion for new trial may be filed before entry of judgment...
Today's COA Opinions
Posted on November 18, 2008Today the NC Court of Appeals released 15 published opinions. Six of them are in criminal cases, and two are in domestic cases. More on these cases later.
NC Supreme Court Hears Medical Ass'n-Death Penalty Case
Posted on November 18, 2008Today the NC Supreme Court heard oral argument in N.C. Dep't of Correction v. N.C. Medical Board. The case concerns the Medical Board's recently adopted policy against physician participation in executions, which conflicts with state law requiring that a physician be "present" at an execution...
Fourth Circuit To Become More Liberal?
Posted on November 10, 2008Here's an interesting article on how the Fourth Circuit might change under the new President.
Today's COA Decisions
Posted on November 04, 2008Today the Court of Appeals issued 15 published decisions. Seven are in criminal cases, eight are in civil cases. More on these cases later.
Appellate Rule Violations Clear Dogwood Hurdle
Posted on November 04, 2008Today the COA addressed on remand a case in which it had dismissed appeal for appellate rule violations. The case is Selwyn Village Homeowners Ass'n v. Cine & Co. When the case was last before the COA, the Court dismissed the appeal because of noncompliance with formatting requirements, including an improperly indexed margin, failure to single-space issues in the body of the brief, and an improperly indexed appendix to the brief...
COA Allows Battery Suit Againt Clay Aiken
Posted on November 04, 2008Today the COA dealt with a lawsuit against Clay Aiken by an author who wrote a book about him. The case is Holleman v. Aiken. She sued him because he refused to endorse her book. The COA affirmed the tossing of that claim. But she also sued him for battery based on an incident with his bodyguard: Aiken had allegedly directed his bodyguard to remove her from a chair, which he did by grabbing her arm and yanking her...
COA Says Spoliation Isn't A Basis For Sanctions
Posted on November 04, 2008Today in a case from the Industrial Commission the COA held that while spoliation of evidence can have evidentiary consequences (it can give rise to an adverse inference instruction), it is not itself a basis for sanctions in the absence of other independent statutory or rule violations authorizing the imposition of sanctions...
Cell Phone Contempt Reversed
Posted on November 04, 2008Today, in State v. Phair, the COA reversed a contempt order issued against a criminal defense lawyer for keeping her cell phone on in court. Her cell phone rang during the State's questioning of a witness. The trial court ordered her to forfeit her phone so it could be destroyed, or to pay a $100 fine...
COA Warns Insurance Carriers
Posted on November 04, 2008Today the COA confronted a weird insurance case. It was a car accident case in which the negligent defendant and his carrier never offered to settle, so the case went to a jury trial, at which the plaintiff prevailed, winning a damages of $9,055 and prejudgment interest of $875, for a total judgment of $9,930...
Today's COA Decisions
Posted on October 21, 2008Today the NC Court of Appeals released 17 published decisions, five of which are (unanimous) criminal cases. Only one dissent among the cases. Not much controversy. More on these cases later.
Yesterday's Supreme Court Orders
Posted on October 11, 2008Yesterday the NC Supreme Court released orders on petitions. The Court granted discretionary review in four cases: two criminal, two civil. One civil case, Blankenship v. Barlett, arises from a Court of Appeals decision holding that the constitutional principle of ?one person, one vote? doesn't apply to the election of judges...
Yesterday's Supreme Court Opinions
Posted on October 11, 2008Yesterday the NC Supreme Court announced "opinions" in 11 cases. One of the cases was dismissed on the ground that discretionary review was improvidently allowed. Six of the cases involved one-sentence per curiam dispositions with no opinions: five affirmances and one reversal (the reversal was a workers comp case where the Court adopted a dissent in the Court of Appeals)...
Learn More About The Judicial Candidates In Upcoming Elections
Posted on October 08, 2008You can learn about the Supreme Court candidates here and the Court of Appeals candidates here.
COA Opinions 10/7
Posted on October 08, 2008The COA filed its latest batch of opinions yesterday, with 17 published civil cases. Only 1 of the 17 has a dissent -- Bird v. Bird, a domestic case, with Judge Jackson dissenting from a majority authored by Judge Arrowood.
Attorney Statement To Potential Witness Immune From Suit
Posted on October 08, 2008In Jones v. Coward, the COA held that at attorney's statements made to potential witnesses, whether before or during trial, whether in or out of court, are privileged and cannot be the basis of a slander suit so long as they are not palpably irrelevant to a suit the attorney is working on...
COA: NC Has Persoanl Jurisdiction Over Broker Of Property Insurance
Posted on October 08, 2008In Wells Fargo Bank v. Affiliated FM Ins. Co., the COA held that the trial court properly denied an insurance broker's motion to dismiss for lack of personal jurisdiction where the broker helped procure insurance on North Carolina property.The plaintiff alleged that the broker misrepresented that an apartment complex in Greensboro was insured but then failed to provide the coverage that the broker represented existed...
NC COA Forces State To Arbitration
Posted on October 08, 2008In State v. Philip Morris US, INC, the COA enforced an arbitration provision in a settlement agreement between the state and tobacco companies over compensation for smoking-related medical costs, where the state contracted and arbitration was mandated by the contract.
Judicial Races
Posted on October 06, 2008The Greensboro News-Record has endorsed Bob Edmunds to retain his Supreme Court seat. Justice Edmunds is from Greensboro.He also picked up the endorsement of Asheville's Citizen-Times, which says "Edmunds brings a thoughtful approach and calm, impartial demeanor to the bench...
Upcoming October Court Activity
Posted on October 01, 2008The NC Court of Appeals doesn't release opinions today (even though 2 weeks have passed since the last release). The next release will be Tues. Oct. 7. Three days later, on Oct. 10, the NC Supreme Court is scheduled release orders on petitions, and thus we expect that the Court will also release opinions that day...
Former NC SCT Justice Webb Passes Away
Posted on September 20, 2008Former Justice Webb, who served 12 years on the NC Supreme Court, passed away yesterday. Here's an article about his interesting life. A graduate of Columbia law school school, he practiced law in NY City, then in Wilson with Gov. Jim Hunt; he then became a trial judge, a Court of Appeals judge, and a Supreme Court justice.
COA Excuses Rule Violations
Posted on September 16, 2008Today the Court of Appeals (COA) held that various violations of Appellate Rule 7 --regarding the preparation of the transcript ? didn?t warrant dismissal of the appeal. The case is Lawrence v. Sullivan.Appellant failed to file and serve written documentation of the transcript arrangement, as required by Appellate Rule 7(a)(1)...
COA Decisions Today
Posted on September 16, 2008The NC Court of Appeals released 18 published opinions today. Seven are criminal cases; the other 11 are civil. More on these cases later.
NC COA LETS LITIGATION LOAN CASE PROCEED
Posted on September 03, 2008In Odell v. Legal Bucks, LLC, the NC COA let the plaintiff proceed with usury, Consumer Finance Act and UDTPA claims against defendant Legal Bucks, a business that makes loans to litigants based on reviews of their cases' merits.In Odell, the plaintiff in a personal injury case had financial difficulties and entered into an agreement with defendant Legal Bucks, whereby plaintiff received a $3000 loan and had to repay it from her recovery in her PI suit...
COA Says Voluntary Dismissal Without Prejudice Can Convert Interlocutory Order Into Appealable Final Judgment
Posted on September 02, 2008Today in Goodman v. Holmes & McLaurin the Court of Appeals (COA) declined to dismiss an interlocutory appeal from an order granting and denying in part a Rule 12(b) motion to dismiss. The reason: after the order came down, the plaintiff voluntarily dismissed without prejudice the claims the trial court didn't dismiss, thus converting the interlocutory order into a final judgment, the COA said...
COA Holds That Equitable Defenses Don't Apply To Statute of Repose
Posted on September 02, 2008Today in Goodman v. Holmes & McLaurin the Court of Appeals held that equitable defenses (e.g., equitable estoppel) don't toll a statute of repose unless the legislature specifically says so. This case involved the 4-yr statute of repose for professional malpractice actions.
COA Holds That No Class Notice Required For Involuntary Dismissal Of Class Action
Posted on September 02, 2008In Kitchin v. Halifax County today, Plaintiffs argued the trial court erred by dismissing their class action lawsuit because notice was not given to members of the class before dismissal. They invoked Rule 23(c), arguing that its notice requirement applies not only to voluntary dismissals, but also to dismissals granted by the trial court...
COA Issues Significant Arbitration Waiver Decision
Posted on September 02, 2008Today the Court of Appeals (COA) issued a significant arbitration decision: the Court held that if a defendant loses a motion to compel arbitration, the defendant's failure to take an immediate interlocutory appeal may result in a waiver of the right to arbitration...
COA: No Sanctions Warranted For Rule Violations
Posted on September 02, 2008Today in Yorke v. Novant Health, Inc. the Court of Appeals (COA) refused to dismiss an appeal (or issue any other sanction) despite several appellate rule violations. The appellant didn't timely settle the record on appeal (it was settled months beyond the deadline prescribed by the rules)...
COA Reiterates That Expert Fees Aren't Mandatory Costs
Posted on September 02, 2008Today in Bennett v. Equity Residential, ERP Operating Ltd. P'Ship, the Court of Appeals reiterated that when a plaintiff voluntarily dismisses her case, Rule 41(d) doesn't require that the defendant's expert witness fees be assessed against the plaintiff as costs...
COA Frees Man Convicted of Kidnapping, Burglary, Etc.
Posted on September 02, 2008In a case today involving the constitutional right to a speedy trial, the Court of Appeals tossed out the conviction of a man sentenced to more than 60 years in prison--for kidnapping, burglary, assault and battery, robbery with a dangerous weapon, and attempted first-degree sex offense, among other charges--holding that the State unfairly delayed his trial (for about five years)...
COA Rejects Suit To Obtain Share Of Pope Estate
Posted on September 02, 2008Today, in a dispute concerning Raleigh's prominent Pope family, the Court of Appeals ruled that Jane Forbes Pope, the widow of John W. Pope, Jr., is not entitled to a share of the money that her late husband transferred to the Pope family trust, which later transferred the funds to the John William Pope Foundation upon his death...
COA Decisions Today
Posted on September 02, 2008The Court of Appeals issued 26 published decisions today. Only three are criminal cases. More on these decisions later.
SPLIT SCT HOLDS CONTRIBUTIONS TO RETIREMENT ACCOUNTS NOT PART OF WORKERS' COMP. AVERAGE WEEKLY WAGE
Posted on August 27, 2008In Shaw v. U.S. Airways, Inc., the NC SCT overruled the NC COA, holding that employer contributions are not to be included in "average weekly wage" in determining workers' compensation benefits.Shaw, an airline worker, hurt his back lifting luggage. The parties didn't dispute Shaw's entitlement to workers' compensation -- they did, though, disagree about whether the airline's contributions to Shaw's 401(k) and pension were part of Shaw's weekly wage from which the level of Shaw's workers' comp...
SCT Petitions and Perhaps Opinions
Posted on August 27, 2008The NC SCT is scheduled to release decisions on petitions today - and perhaps some opinions will come out with them.
COA Opinions Today
Posted on August 19, 2008The Court of Appeals released 22 published opinions today, 17 in civil cases, and 6 with dissents. More on those opinions later today.
COA Reverses Order Compelling Accounting Firm To Produce Records To DOR
Posted on August 05, 2008Today the Court of Appeals (COA) ruled against the Department of Revenue (DOR), reversing a trial court order that compelled Ernst & Young (E&Y) to produce records relating to services it provided to Wal-Mart over a number of years. The COA remanded for in camera review, even though Wal-Mart hadn't requested it in the trial court...
COA Reminds: Don't Wait For Costs/Fees To Be Resolved Before Appealing Judgment
Posted on August 05, 2008Today the Court of Appeals (COA) dismissed an appeal for lack of jurisdiction because the appellant filed the notice of appeal too late. The case is In re Will of Fannie J. Harts.This was a caveat proceeding. The caveator lost. The trial court entered judgment on May 21, 2007, but didn't address at that time the motion for costs and attorneys' fees...
COA Upholds Two Rule 11 Sanctions
Posted on August 05, 2008Today the Court of Appeals upheld Rule 11 sanctions in two cases (see here and here).
Split COA Upholds UDTPA Judgment Based On Interruption/Disconnection of Electricity
Posted on August 05, 2008Today the Court of Appeals (COA) upheld a treble-damages judgment for an unfair trade practice under G.S. 75-1.1, based on a campground operator's interruption and disconnection of electrical service. The case is Shepard v. Bonita Vista Properties, L...
COA Decisions Today
Posted on August 05, 2008The Court of Appeals released 44 published opinions today, of which 20 are criminal and 24 are civil (one-third of which are domestic or juvenile cases). More on these cases later.
Split Fourth Circuit: N.C. Courts Wouldn't Give Collateral Estoppel Effect To N.C. Default Judgment Arising From Discovery Sanction
Posted on July 28, 2008Today the Fourth Circuit split over an unresolved issue of N.C. law: whether a state default judgment, entered as a penalty for a party's failure to comply with a N.C. court's discovery order, has collateral estoppel effect in subsequent litigation (in this case, litigation in bankruptcy court)...
COA Applies Heightened Pleading Standard To Wrongful Discharge Case
Posted on July 15, 2008Today in Gillis v. Montgomery County Sheriff's Dept., a wrongful discharge case, the Court of Appeals (COA) held that if a plaintiff relies on the public-policy exception to the at-will employment doctrine, the complaint must plead that exception with particularity...
COA Holds That Full Faith And Credit Clause Doesn't Permit Broad Collateral Review Of Class Action Settlements Approved By Foreign Courts
Posted on July 15, 2008Today the Court of Appeals (COA) ruled that the Business Court erred in failing to give full faith and credit to a nationwide class action settlement approved in Illinois. The case is Moody v. Sears Roebuck & Co. (We represented Sears on appeal.)The COA held that when a court enters a judgment approving a class action settlement, the Full Faith and Credit Clause doesn't permit a second court to undertake a broad collateral review of the foreign judgment to decide for itself if the settlement comports with due process (e...
COA Reverses 2 Orders Granting New Trials
Posted on July 15, 2008In two unrelated slip-and-fall cases, the COA today reversed the trial courts' setting aside jury verdicts and ordering new trials. In the one, Harrell v. Sagebrush of N.C., LLC, the COA held that the trial court abused its discretion -- a high bar -- when it ordered a new trial because the video of a deposition, the key testimony of which had already been read into the record, had been excluded...
COA To Practitioners: Perfect Your Service Before Voluntarily Dismissing
Posted on July 15, 2008In Camara v. Gbarbera, the COA today made clear that practitioners should perfect service before voluntarily dismissing their cases. In Camara, the plaintiffs filed a personal injury negligence suit arising from an almost 3-year-old auto collision. And the statute of limitations for the suit was 3 years...
COA Reaches Merits, Affirms Summary Judgment In Medical Negligence Case, Despite Appellate Procedure Errors
Posted on July 15, 2008In Azar v. The Presbyterian Hospital, the COA today reached the merits of a medical negligence case despite the appellant's substantial violations of the rules of appellate procedure. The appellant's errors: 1) The record lacked a summons or personal jurisdiction statement; 2) The hearing transcript was missing; 3) Documents in the record didn't show their filing dates; 4) The assignments of error referenced the wrong record page; 5) The standard of review was misplaced; 6) Not all factual statements in the brief had record cites; and 7) The statement of facts was argumentative...
COA Opinions Today
Posted on July 15, 2008The NC COA published opinions today, including 14 civil published opinions. More on these cases to come...
Fourth Circuit Affirms Dismissal Of Defamation Suit Against NY Times Re: Post-9/11 Anthax Incidents
Posted on July 14, 2008Today the Fourth Circuit affirmed summary judgment for the NY Times in a defamation suit arising from articles written by NY Times commentator Nicholas Kristof regarding the government's investigation of the post-9/11 anthrax incidents. The case is Hatfill v...
COA Splits On Personal Jurisdiction
Posted on July 01, 2008Today in Rossetto USA, Inc. v. Greensky Financial, LLC, the Court of Appeals (COA) held that personal jurisdiction was lacking over one Georgia-based defendant but not over another. Judge Arrowood authored the majority decision, joined by Judge McCullough...
Today's COA Decisions
Posted on July 01, 2008The Court of Appeals released 10 published decisions today, six of which are civil cases (involving annulment, underinsured motorist coverage, child support, a handgun license, retirement benefits, and personal jurisdiction). There was one dissent, and it was in the case dealing with personal jurisdiction...
Fourth Circuit Clarifies CAFA Removal Standards
Posted on June 30, 2008Today in Strawn v. AT&T Mobility LLC the Fourth Circuit clarified the Class Action Fairness Act's (CAFA) removal standards.Today's case involved a class action filed in West Virginia state court against a cellular phone carrier (AT&T) alleging the carrier has a "pattern or practice" of automatically enrolling new cellular phone customers in a free trial of its optional Roadside Assistance service and then charging them $2...
COA Vacates Industrial Comm'n Award Because Commissioner Wasn't Qualified
Posted on June 17, 2008Today the Court of Appeals (COA), in an opinion by Judge Bryant, held that the Industrial Commission's 2-1 decision against an employer had to be vacated because one of the commissioners in the majority was not qualified to serve, since the Governor had named his successor three days before the decision was filed...
COA says no jurisdiction over out-of-state defendant who allegedly defamed NC resident on website available to everyone
Posted on June 17, 2008Today, the Court of Appeals held that an out-of-state defendant's posting of allegedly defamatory remarks about a North Carolina citizen, posted on a website accessible to everyone, including people in North Carolina, but not "directed" at North Carolina, did not subject the defendant to personal jurisdiction...
COA rejects choice of law and forum selection clauses in contracts relating to NC real estate
Posted on June 17, 2008Today, in Price and Price v. Miken Corporation, the Court of Appeals confirmed that choice of law and forum selection clauses in contracts concering real property located in North Carolina are invalid.The plaintiff was a subcontractor working on a commercial development in Asheville; the defendant was a developer based in Florida...
COA Decisions Today
Posted on June 17, 2008Today the Court of Appeals released 19 published decisions, of which 13 are civil and 6 are criminal. There are a half dozen dissents. More on these cases later.
NC Supreme Court upholds ruling that teacher cannot get workers' compensation for "generalized anxiety disorder"
Posted on June 13, 2008Yesterday, the North Carolina Supreme Court held that "generalized anxiety disorder" is not an occupational disease under the Workers' Compensation Act, at least under the facts as presented by the plaintiff, a middle school teacher. The case is Hassell v...
NC SCT Action Today
Posted on June 12, 2008Today the NC Supreme Court issued orders and 13 decisions. Of the 13 decisions, seven are per curiams (including one with an evenly divided Court), and six are written opinions. Six of the 13 decisions are criminal cases. We'll have more on some of the opinions later...
NC Supreme Court upholds ruling that teacher cannot get workers' compensation for "generalized anxiety disorder"
Posted on June 12, 2008Today, the North Carolina Supreme Court held that "generalized anxiety disorder" is not an occupational disease under the Workers' Compensation Act, at least under the facts as presented by the plaintiff, a middle school teacher. The case is Hassell v...
NC Supreme Court Decisions Due This Week
Posted on June 08, 2008The Supreme Court is scheduled to issue decisions this Thursday, June 12.
COA Clarifies 12(b)(6) Dismissal Motion Requirements
Posted on June 04, 2008In the unpublished Austin Hatcher Realty, Inc. v. Hazel Gaither et al., the COA yesterday clarified what's required when making a 12(b)(6) motion, though perhaps upped what's needed to allege an unjust enrichment claim.In Austin Hatcher, a real estate listing agreement was entered into, and the property was ultimately sold...
COA Allows Suit Against County To Go Forward On One Insurance Policy, Not On Another
Posted on June 04, 2008In Cowell v. Gaston County et al., the COA allowed the plaintiffs, home owners who attributed their uninhabitable home to negligent inspection by county building inspectors, to go to trial against the county on Tuesday.The county had bought 2 insurance policies but claimed that neither covered plaintiffs' claims and therefore the county was immune...
COA Allows UDTPA Claim In Employment Context
Posted on June 04, 2008In Gress v. The Rowboat Company, Inc., the COA allowed the defendants to roll forward with their unfair and deceptive practice claim in the context of an ostensible employment relationship. The COA noted that, generally, there is a presumption against unfair and deceptive practice claims in the employment context because such disputes are not sufficiently in or affecting commerce, a requisite element of a UDTPA claim...
COA limits Wage and Hour Act to N.C. residents/employees
Posted on June 03, 2008Today, in Sawyer v. Market America, the Court of Appeals limited the reach of the North Carolina Wage and Hour Act by holding that it does not apply to someone who neither lives nor works in the state. (Womble Carlyle represented the defendant, Market America...
COA Decisions Today
Posted on June 03, 2008Today the Court of Appeals issued a relatively slim load of opinions: 18 published, of which 11 are civil and 7 are criminal. More on these cases later.
Agee Unanimously Confirmed To Fourth Circuit
Posted on May 21, 2008Yesterday the Senate unanimously confirmed VA Supreme Court Justice Steven Agee to a seat on the Fourth Circuit. A story is here.
Split Fourth Circuit Strikes Down VA's Partial Birth Abortion Statute
Posted on May 20, 2008Today the Fourth Circuit, in a 2-1 decision, struck down Virginia's partial-birth abortion statute. The majority (Judges Michael and Motz) did so even though the U.S. Supreme Court last year, in Gonzales v. Carhart, upheld the federal partial-birth abortion statute that Congress passed in 2003...
COA limits implied waiver of sovereign immunity afforded by Corum v. UNC
Posted on May 20, 2008Today, in Petroleum Traders Corp. v. State, the Court of Appeals limited the waiver of sovereign immunity afforded by Corum v. University of North Carolina to claims arising under Article I of the N.C. Constitution, the Declaration of Rights.An Indiana company that sold oil to the state and its entities sued the state, complaining about the 1...
COA Decisions Today
Posted on May 20, 2008Today the Court of Appeals released 26 published decisions (10 criminal, 16 civil). The Court reversed or vacated in nine of the 26 cases. There were two dissents. More on these cases later.
Fourth Circuit emphasises the line between breach of contract and False Claims Act/fraud in the inducement
Posted on May 20, 2008In United States ex rel. Wilson, Warren v. Kellogg, Brown & Root, the Fourth Circuit held that a relator in a quit tam False Claims Act suit cannot use the Act to recover for what is essentially an alleged breach of contract by the defendant against the government...
COA Issues Equitable Reformation Decision
Posted on May 20, 2008Today the Court of Appeals (COA) issued a decision on the doctrine of equitable reformation. The case is Carter v. West American Ins. Co.The basis for the suit was this: plaintiffs' home was destroyed by fire; the written insurance contract set the dwelling coverage amount at $119,500; plaintiff alleged, however, that the insurer, through an insurance agent, had orally agreed or impliedly assumed a duty to cover whatever it cost to replace the house (much higher than the coverage amount)...
COA Rejects Aiding-And-Abetting Tort Liability
Posted on May 20, 2008Today in Hinson v. Jarvis the Court of Appeals (COA) rejected plaintiff's claim that defendant could be liable for aiding and abetted her (defendant's) negligent operation of a vehicle.Mr. Jarvis was driving with his wife, the defendant, when they struck head on a vehicle in which the Hinson family was riding...
COA Applies "Evidentiary Admission" To Affirm Summary Judgment
Posted on May 20, 2008Today in Hash v. Estate of Paige Walton Hensley the Court of Appeals confronted this situation: plaintiff, a passenger in defendant's vehicle at the time of an accident, was alleging in her complaint and in her affidavit opposing summary judgment that the defendant was negligent; but plaintiff had previously testified, in an earlier criminal trial against another party to the accident (Gordon), and in a deposition in an earlier civil case against Gordon, that it was Gordon who was at fault, and that defendant was not negligent...
COA Reaffirms That Waiver/Estoppel Can't Broaden Coverage Of Insurance Policy
Posted on May 20, 2008Today in Hannah v. Nationwide Mut. Fire Ins. Co. the Court of Appeals (COA) reaffirmed that the doctrines of waiver and estoppel may not be used by an insured to broaden the overage of a policy to protect against risks not included in the policy or excluded from the policy (in this case, to obtain coverage for personal property not otherwise covered by the policy)...
President Nominates Fourth Circuit Judge From VA
Posted on May 09, 2008President Bush yesterday nominated District Judge Glen Conrad (W.D. Va.) to the seat held by Emory Widener. Here's a story on it.
COA Upholds Rule 11 Sanctions In Non-Compete Case
Posted on May 06, 2008Today, in an unpublished decision, the Court of Appeals (COA) upheld Rule 11 sanctions. The case is Yadkin Valley Bank & Trust Co. v. AF Financial Group. Judge Stephens wrote the decision, joined by Judges Steelman and Calabria. Two bank officers entered into employment agreements containing non-competition clauses...
COA Splits Over Sanction For Failing To Attend Depo
Posted on May 06, 2008Today, in Moore v. Mills, the Court of Appeals (COA), in a 2-1 decision, reversed a sanction entered against a defendant who failed to attend his deposition. Judge Elmore wrote the majority decision, joined by Judge Arrowood. Judge McCullough dissented...
COA Splits In Coverage Dispute
Posted on May 06, 2008Today in the Court of Appeals (COA) split on the issue whether insurance carriers had a duty to defend an insured for an underlying lawsuit. Specifically, they split on the application of an exclusion. The case is Harleysville Mut. Ins. Co. v. Buzz Off Insect Shield, L...
COA Dismisses TSPA Claim For Indefinite Pleading
Posted on May 06, 2008Today the Court of Appeals (COA) reiterated that, to plead misappropriation of trade secrets, "a plaintiff must identify a trade secret with sufficient particularity so as to enable a defendant to delineate that which he is accused of misappropriating and a court to determine whether misappropriation has or is threatened to occur...
COA Decisions Today
Posted on May 06, 2008Today the Court of Appeals released a bunch of decisions, including 45 published decisions. Twenty are criminal cases, 25 are civil. (There appear to be 27 civil decisions on the website, but two of those decisions are repeats of other decisions because they involved multiple appeals arising from the same underlying case...
Fourth Circuit Strikes Down NC's Campaign Finance Law ...
Posted on May 01, 2008Today in North Carolina Right to Life, Inc. v. Leake, a split Fourth Circuit (in 101 pages of opinions!) held that key provisions of NC's campaign finance laws violate the First Amendment, including provisions regulating the "express advocacy" of candidates by organizations, defining "political committee," and limiting contributions...
... But Fourth Circuit Upholds NC's Judicial Campaign Reform Act
Posted on May 01, 2008In a separate campaign finance case today, bearing the similar title of North Carolina Right to Life Committee Fund for Independent Political Expenditures v. Leake, the Fourth Circuit rejected a First Amendment challenge to the State's Judicial Campaign Reform Act, which became effective in 2002...
BB&T Loses Fourth Circuit Tax Appeal Over LILO Transaction
Posted on April 29, 2008Today in BB&T Corp. v. U.S. the Fourth Circuit upheld the IRS's disallowance of deductions that BB&T claimed for a "lease in/lease out" (LILO) transaction. (A LILO transaction involves a taxpayer leasing property from a tax-exempt entity while simultaneously leasing the property back to the owner, enabling the taxpayer to deduct the rental payments on its lease, amortize costs, and possibly deduct interest payments...
O'Connor-By-Designation Cases
Posted on April 23, 2008This past week and a half the Fourth Circuit has begun issuing decisions in cases in which Retired Justice Sandra Day O'Connor sat by designation on the panel--cases argued the week of March 18. Today was the fourth such case issued (this one an unpublished FELA case)...
NC State Held Liable For Professor's Sexual Harassment
Posted on April 16, 2008Yesterday, in Gonzales v. N.C. State Univ., the Court of Appeals (COA) upheld an order of the Industrial Comm'n finding NC State (NCSU) liable for negligence arising from a professor's sexual harassment of a student.Although there appeared to be a track record of complaints about him, plaintiff apparently relied heavily on the professor's alleged harassment of another woman at NCSU 10 years beforehand...
COA Holds That Stock Analyst's Report Isn't Libelous
Posted on April 15, 2008Today in Nucor Corp. v. Prudential Equity Group, LLC, the Court of Appeals (COA) affirmed the dismissal of a libel per se action brought by Nucor against Prudential and one of its stock analysts, based on a report written by the analyst, which was distributed to investors...
COA Issues Another Personal Jurisdiction Decision
Posted on April 15, 2008Today in Eaker v. Gower the Court of Appeals (COA) reversed a trial court's finding of personal jurisdiction.First, the COA held that the verified complaint's allegation that defendant is a citizen and resident of N.C. was entitled to no deference, because the defendant submitted an affidavit (in support of her motion to dismiss for lack of personal jurisdiction) stating she's a citizen and resident of Florida, and plaintiff didn't counter that affidavit...
COA Holds Trial Court Erred In Striking Untimely Answer
Posted on April 15, 2008Today in Carpenter v. Carpenter the Court of Appeals (COA) held that a failure to timely file an answer is not a proper ground for striking a pleading under Rule 12(f). A week and a half after the deadline passed for filing an answer to her complaint, Plaintiff moved for judgment on the pleadings...
COA Excuses Rule Violations
Posted on April 15, 2008In decisions today the Court of Appeals (COA) excused rule violations, i.e., it didn't dismiss the appeals. In one case the appellant omitted a statement of the standard of review from his brief, thus violating Rule 12(b)(6). In another case the appellant failed to cite an assignment of error after stating the question presented in its argument, in violation of Rule 28(b)(6)...
COA Rejects Suit Over Property Sale
Posted on April 15, 2008Today the COA rejected a lawsuit brought by a development company that had its contracts to purchase and sell property defeated when the sellers decided, unbeknownst to Plaintiff, to negotiate with and sell the property to persons with whom Plaintiff had contracted to sell the property...
COA Splits On Personal Jurisdiction Over Corporate Officer, Upholds Jurisdiction Over Parent On Veil-Piercing Allegations
Posted on April 15, 2008Today the Court of Appeals, in a significant case, issued a split decision on personal jurisdiction over an officer of a foreign corporation, while unanimously agreeing that personal jurisdiction could be exercised over an affiliated corporation on a veil-piercing theory...
Today's NC Court of Appeals Decisions
Posted on April 15, 2008The NC Court of Appeals (COA) released 20 published opinions today. Six are criminal cases. There are four dissents. Notably, the COA found error (i.e., reversed or vacated) in more than half the cases (11). Another tough day for trial court judges. More on these cases later.
NC SCT Reiterates: No Assignments Of Error Needed From Summary Judgment
Posted on April 14, 2008On Friday the NC Supreme Court reiterated this: "This Court has long held, and the law has not been changed, that for purposes of an appeal from a trial court's entry of summary judgment for the prevailing party, the appealing party is not required under Rule 10(a) of the Rules of Appellate Procedure to make assignments of error for the reason that on appeal, review is necessarily limited to whether the trial court's conclusions as to whether there is a genuine issue of material fact and whether the moving party is entitled to judgment, both questions of law, were correct...
Divided NC SCT Rejects Suppression Of Evidence
Posted on April 14, 2008On Friday, in a criminal case implicating the Fourth Amendment's prohibition against unreasonable searches and seizures, the NC Supreme Court split on an issue that had divided the Court of Appeals (COA) below: whether a defendant's 30-second delay at a traffic intersection after the light turned green gave rise to a reasonable, articulable suspicion that the defendant was engaged in criminal activity (namely that he was driving while impaired), thus justifying a traffic stop, which resulted in the police finding drugs...
NC Supreme Court Orders and Opinions Today
Posted on April 11, 2008The NC Supreme Court released orders and opinions today. There are 8 opinions. Half are per curiams. Among the orders: the Court denied plaintiffs' appeal and PDR in the case brought to challenge the constitutionality of economic incentives received by Dell for locating a new manufacturing facility in North Carolina...
SCT Decisions This Week
Posted on April 08, 2008The NC Supreme Court is scheduled to release orders and opinions this Friday April 11.
Summary Judgment During Discovery OK, Attorneys' Fees Using Wrong Legal Standard Not So Much
Posted on April 02, 2008In Birmingham v. H & H Home Consultants and Design, Inc., the COA held that summary judgment during the pleadings and discovery phase was permissible, but that the award of attorneys' fees to the successful defendants of an unfair and deceptive trade practices claim using the standard for awarding such fees to successful plaintiffs was impermissible...
Worker's Intoxication Properly Barred Workers' Comp. Recovery
Posted on April 02, 2008In Gratz v. Hill, the NC COA held yesterday that an employee's workers' comp. recovery was properly barred because the worker's intoxication was a cause for the injury.In Gratz, the plaintiff got a beer in the morning while with fellow workers on the way to a job that involved roof work...
COA Bars Double-Dipping With Admin. Appeal And Civil Suit
Posted on April 02, 2008The COA yesterday held in Hentz v. Asheville City Board of Education that a party can't have two bites at the apple by bringing a law suit based on an administrative action while also appealing the action in the administrative realm.In Hentz, the plaintiff sought to challenge the School Board's decision to revoke her children's admission to Asheville's schools...
COA Upholds Contractual Limitation Of Liability
Posted on April 01, 2008Today the Court of Appeals (COA) upheld a contractual limitation of liability clause which capped damages at $50,000. The case is Blaylock Grading Co., LLP v. Smith. Chief Judge Martin authored the decision.Defendants, an engineering company and its principal, entered into a contract with plaintiff, a grading company, to provide land surveying services...
COA Decisions Today
Posted on April 01, 2008The Court of Appeals released decisions today. There are 16 published decisions. Half are criminal cases. No dissents. More on these cases later.
Fourth Circuit Rules For EEOC In Title VII Case Over Religiously Hostile Environment
Posted on March 31, 2008Today the Fourth Circuit, in a opinion by Judge Wilkinson, ruled for the EEOC in a Title VII case brought on behalf of a Muslim employee. The case alleged a religiously hostile work environment in the aftermath of 9/11, through his termination in Feb...
Fourth Circuit Rules 2-1 For Defendant In SOX Whistelblower Case
Posted on March 24, 2008Today, in Livingston v. Wyeth, Inc., the Fourth Circuit affirmed summary judgment for Wyeth in a "whistleblower retaliation" action under the Sarbanes-Oxley Act ("SOX"), 15 U.S.C. 1514A. The court was split. Judge Niemeyer wrote the majority decision...
NC COA Decisions Today
Posted on March 18, 2008The NC Court of Appeals released 20 published decisions today. Five were criminal cases. There were two dissents. One of the appeals was dismissed for rule violations. Of the 19 appeals decided on the merits, 11 of them found some error entitling the appellants to some relief (a full or partial reversal, a vacatur, a remand, or a new trial)...
Split COA Upholds Lottery Act
Posted on March 18, 2008Today in Heatherly v. State the Court of Appeals (COA) rejected a constitutional challenge to the State's Lottery Act, the legislation that created the lottery. Judge Wynn wrote the majority decision, joined by Judge Hunter. Judge Calabria dissented...
COA Holds Punitive Damages May Be Awarded For "Spite Fence"
Posted on March 18, 2008Today in Austin v. Bald the Court of Appeals (COA) held that punitive damages may be awarded in a "spite fence" case. A spite fence is one that is of no beneficial use to the owner and that is erected and maintained solely for the purpose of annoying a neighbor...
COA: Lightning Strike Draws Workers' Comp Only If Employee Was At Increased Risk Of Lightning Strike
Posted on March 18, 2008Today in Heatherly v. Hollingworth Co. the Court of Appeals (COA) dealt with a workers' comp claim of an employee injured by a lightning strike. Plaintiff, a drywall hanger, was on a job site high on a mountain, working in an unfinished garage that had no doors, when lightning struck, producing a jolt which knocked him back several feet in the air, causing him to break his hand in the fall...
COA Holds That LLC Manager Had No Authority To Institute Lawsuit By LLC
Posted on March 18, 2008Today in Crouse v. Mineo the Court of Appeals (COA) dealt with a dispute between members of a two-lawyer firm, Mineo & Crouse, PLLC. The main issues before the COA concerned standing.Crouse, a 50% owner and member-manager of the firm, brought this suit in his own behalf and in the name of the LLC against Mineo, the other member-manager, alleging that Mineo misappropriated funds belonging to the firm or Crouse...
COA Decides Adverse Possession Case Involving Permissive Use Interrupting 20-Year Period
Posted on March 18, 2008Today, in a split adverse-possession case, the Court of Appeals (COA) addressed what happens when, during the 20-year statutory adverse-possession period, the true owner of the land gives the hostile possessor permission to continue use. Does the grant of permission destroy the claim of adverse possession? It depends...
COA Dismisses Appeal For Rule Violations
Posted on March 18, 2008Today the Court of Appeals (COA) dismissed an appeal because the appellant failed to comply with Appellate Rule 3 regarding the content of the notice on appeal, failed to include in her brief a statement of the standard of review, and "most significantly" failed to include in the record on appeal the certificate of service for the notice of appeal...
NC COA Decisions Due Tomorrow
Posted on March 17, 2008Tomorrow the NC Court of Appeals (COA) will release opinions.This is a busy week of oral arguments at both the COA and the NC Supreme Court (SCT). The SCT hears arguments three days this week. The COA hears them four days this week, including two arguments at NCCU Law School on Wednesday.
President Nominates Fourth Circuit Judge From VA
Posted on March 14, 2008Yesterday President Bush nominated Va Supreme Court Justice G. Steven Agee to the Fourth Circuit. This is for the seat to which the President had previously nominated Virginian Duncan Getchell, a nomination withdrawn after senate opposition.Both Virginia senators (Warner and Webb) are applauding the nomination...
NC Supreme Court DIGs Lending Case
Posted on March 10, 2008On Friday the NC Supreme Court dismissed as improvidently granted the petition for discretionary review (PDR) in Richardson v. Bank of America. Many issues were decided by the Court of Appeals (COA) in that case (its opinion is here), but the primary issue raised in the PDR concerned the COA's holding that plaintiff had a valid claim for breach of the covenant of good faith and fair dealing (see part III of the COA's opinion)...
NC Supreme Court PDR Orders
Posted on March 10, 2008On Friday the Supreme Court granted discretionary review in a few cases. One involves a Court of Appeals (COA) decision which upheld a common law claim for obstruction of justice based on a hospital's failure to maintain x-rays, even though no lawsuit was pending and or threatened against the hospital...
NC Supreme Court Decisions
Posted on March 08, 2008Yesterday the NC Supreme Court issued orders and opinions, including a blockbuster opinion on appellate rule violations. More on these cases later.
NC Supreme Court Clarifies Standard For Dismissing Appeals
Posted on March 08, 2008Yesterday, in Dogwood Dev. & Mgt. Co. v. White Oak Transport Co., the NC Supreme Court took a major step to sort out the confusion caused by a number of Court of Appeals (COA) decisions in recent years that dismissed appeals for non-jurisdictional appellate rule violations...
Appealing From The Banking Commission? If So, All You Need: Notice Of Appeal, Within 20, To Commissioner
Posted on March 04, 2008In In re Advance America, the NC COA held that N.C. Gen. Stat. sec. 53-92(d) -- the statute that, among other things, tells parties before the Banking Commission how to appeal -- was unambiguous, must be given its plain meaning, and requires appeal only by written notice to the Commissioner of Banks within 20 days and nothing more...
NC COA Decisions Today
Posted on March 04, 2008Today the NC Court of Appeals (COA) released 23 published opinions (two of which arise from the same case). Five are in criminal cases, and another relates to a prisoner seeking parol. There are only two dissents. More on these cases later.We note that today's unpublished decisions from the COA include a number of cases involving appellate rule violations -- e...
Fourth Circuit Rejects 1983 Claim
Posted on March 04, 2008Today, in Mora v. City of Gaithersburg, the Fourth Circuit, in an opinion by Judge Wilkinson, rejected a Section 1983 claim brought by a man who sued over searches of his property and seizures of numerous weapons he owned. Plaintiff, a firefighter, was a licensed firearms gun collector...
COA Upholds Discovery Orders
Posted on March 04, 2008Today, in a negligence action, the Court of Appeals (COA) upheld discovery orders compelling product. The case is Fulmore v. Howell.First, the trial court granted plaintiff's motion to compel discovery of defendant's social security number. Defendant argued that compelled disclosure violated the Federal Privacy Act of 1974...
COA Excuses Appellant's Failure To Include In Record A Notice Of Arrangement For Transcript
Posted on March 04, 2008In a published case today, the appellant failed to include in the record on appeal a copy of a notice of arrangement for the transcript, as required by the appellate rules. The appellees pointed this out in their brief, contending the transcript wasn't delivered until 124 days after the notice was filed...
COA Rejects Insured's Effort To Circumvent $5,000 Cap In Insurer's Mold Endorsement And Bounces Chapter 75 Claim Based On Mold Exacerbation
Posted on March 04, 2008Today the Court of Appeals (COA) enforced an insurer's $5,000 cap on mold damages in a case brought by a residential homeowner. The case is Burrell v. Sparkkles Reconstruction Co. Judge Wynn wrote the majority decision, joined by Judges Steelman and Geer...
COA Holds That Plaintiff Need Not Move For Entry Of Default Before Moving For Default Judgment
Posted on March 04, 2008Today in Ruiz v. Mecklenburg Utilities, Inc. the Court of Appeals (COA) affirmed a default judgment even though the plaintiff didn't first move for entry of default under Rule 55(a); instead the plaintiff moved straight for a default judgment under Rule 55(b), which the trial court granted even though no entry of default preceded it...
COA Reverses Res Judicata Ruling
Posted on March 04, 2008Today, in a product liability action, the Court of Appeals (COA) held that the trial court erred in dismissing claims based on res judicata. The case is Skeen v. Warren & Sweat Mfg. The decision is unpublished. Judge Jackson concurred in the result only...
NC SCT Petitions, And Perhaps Opinions, Next Week
Posted on February 28, 2008The NC SCT is expected to file decisions on petitions, and perhaps opinions, next week.
SCOTUS Overturns 4th Circuit, Holds Employees May Sue 401(k) Managers For Mismanagement And Injuries To Individuals' Accoutns
Posted on February 24, 2008Last week, with LaRue v. DeWolff, Boberg & Associates, Inc., SCOTUS overturned the 4th Circuit and held that ERISA authorizes retirement account holders such as the plaintiff in that case to sue for and recover losses when retirement plan managers breach their fiduciary duties, adversely affecting individuals' accounts...
COA Speaks to Political Speech Protections
Posted on February 20, 2008As the '08 political season ramps up, the NC COA reminded us yesterday, in Craven v. Cope, that unkind political mailings that are hyperbole or opinion and can't be mistaken for factual assertions won't constitute defamation -- but that all political speech is not necessarily protected...
COA Holds Internal Affairs Not Jurisdictional, Etc. In Corporate Potpourri Case
Posted on February 20, 2008In Bluebird Corp. v. Aubin, the COA addressed a potpourri of corporate, evidentiary and procedural issues.Bluebird was a commercial real estate investment corp. owned by 2 shareholders, Susi and Aubin. Susi was the $$ shareholder, and Aubin the day-to-day manager and marketer shareholder...
HOAs May Assess $$ Penalties Against Errant Owners
Posted on February 20, 2008The NC COA made clear yesterday in Riverpointe Homeowners Ass'n v. Mallory that home owner associations may impose monetary fines on errant home owners, even where the home owner association documents and declarations don't expressly allow for such fines...
COA Decisions Today
Posted on February 19, 2008The NC Court of Appeals released 22 published opinions today, half criminal, half civil. There are no dissents. More on these cases later.
COA Warns Trial Judges: Don't Make Factual Findings For Summary Judgment
Posted on February 19, 2008Today in Craddock v. Craddock the Court of Appeals (COA) reversed a summary judgment order which contained 32 findings of fact, some of which addressed issues on which evidence was conflicting. This prompted the COA to reiterate this warning from a 30-year-old case: "'[W]e feel compelled again to point out that it is not a part of the function of the court on a motion for summary judgment to make findings of fact and conclusions of law...
Raleigh Lawyer Loses Fight Over Booted Car
Posted on February 19, 2008Today the Court of Appeals (COA) rejected a tort suit brought pro se by a Raleigh lawyer whose unathorized parking resulted in the booting of his car and a larceny prosecution against him. The case is Kirschbaum v. McLaurin Parking Co. The N&O has a story on the case here...
COA Rejects Constitutional Challenge to NC Unclaimed Property Act
Posted on February 19, 2008Today in Rowlette v. State, the Court of Appeals (COA) rejected a "takings" challenge to the North Carolina Unclaimed Property Act (NCUPA). The case concerned interest earned on unclaimed dividends while they were in the State's custody under the NCUPA...
Fourth Circuit Rules For Employer (And Against EEOC) In Title VII Case
Posted on February 12, 2008Yesterday in EEOC v. Firestone Fibers & Textiles Co. the Fourth Circuit, in an opinion by Judge Wilkinson, upheld summary judgment for Firestone in a Title VII dispute over whether Firestone reasonably accommodated an employee's religious beliefs...
Split COA Reinstates Punitive Damage Award In Malicious Prosecution Case
Posted on February 05, 2008Today in Scarborough v. Dillard's Inc. the Court of Appeals (COA) reinstated a punitive damage award in a malicious prosecution case. Dillard's accused plaintiff, a former part-time employee in its shoe department, of misconduct (after he failed to charge a woman for two pair of shoes); that accusation led to a failed embezzlement prosecution against plaintiff by the district attorney, a prosecution instigated by a Dillard's loss-prevention employee who also was a full-time officer with the Charlotte-Mecklenburg Police Department...
COA: Deed Of Trust Canceled Without Authorization Enjoys Priority Over Later Deed Of Trust, Despite Later Lender's Reliance On Cancellation
Posted on February 05, 2008Today in Household Realty Corp. v. Lambeth the Court of Appeals (COA) addressed a priority issue concerning deeds of trust. A deed of trust held by the first lender was fraudulently canceled by the unauthorized act of a third party. In reliance on that cancelation, a second lender furnished a loan and obtained a deed of trust...
COA Applies Res Judicata To Sovereign Immunity Dismissal
Posted on February 05, 2008Today in Herring v. Winston-Salem/Forsyth County Bd. of Educ. the Court of Appeals held that, for purposes of res judicata, a dismissal on the ground of soverign immunity constitutes a final adjudication on the merits entitled preclusive effect in a subsequent action between the parties...
COA Holds That Damaged Breast Implant Draws Workers' Comp Benefits
Posted on February 05, 2008Today in Richardson v. Maxim Healthcare/Allegis Group, a workers' comp case, the Court of Appeals held that damage to a breast implant is a compensable injury. The employee in today's case was in a car accident on the job, and it caused her breast implant to rupture...
Today's NC Court of Appeals Decisions
Posted on February 05, 2008Today the NC Court of Appeals handed down 30 published opinions today, nine of which are criminal. The Court found error in nine cases. Five of the cases drew dissents.
Fourth Circuit Rolls Out Yet Another FLSA Case, This One Favoring Employees Alleging Retaliation
Posted on February 01, 2008Yesterday in Darveau v. Detecon, Inc. the Fourth Circuit issued another FLSA decision, this one addressing whether a former employee can assert against his former employer a "retaliation" claim under the FLSA, even though the allegedly retaliatory act (a lawsuit against the employee) occurred after his employment terminated, and thus had no materially adverse effect on his employment (e...
Fourth Circuit Lets NC's Nuisance Suit Against TVA Go Forward
Posted on February 01, 2008Yesterday in State of N.C. v. Tennessee Valley Authority the Fourth Circuit rejected TVA's sovereign immunity defense, thereby allowing NC's nuisance suit to go forward.TVA operates coal-fired plants in Tennessee, Alabama, and Kentucky. NC brought this common-law nuisance action against TVA, contending that the plants emit pollutants which travel downwind through the atmosphere into NC's airspace, where they adversely affect human health and the environment...
COA 40th Anniversary Celebration
Posted on January 31, 2008The NC Court of Appeals just held its 40th Anniversary Celebration. Governor Easley and Chief Justice Parker spoke. In addition to all sitting Court of Appeals judges, in attendance were the Supeme Court Justices, several former Chief Justices (including our own Burley Mitchell), and many former judges from the Court of Appeals and Supreme Court who have served over the past several decades.
Fourth Circuit: Arbitrator May Certify Opt-Out FLSA Class, Desite FLSA's Opt-In Requirement
Posted on January 28, 2008Today, in Long John Silver's v. Cole, a collective action brought in arbitration under the Fair Labor Standards Act (FLSA), the Fourth Circuit confronted the following conflict. On the one hand, the FLSA contains an "opt-in" provision: section 16(b) of the FLSA says that "[n]o employee shall be a party plaintiff to any ...
SCT: Punitive Damages Unavailable Against Deceased Wrongdoer
Posted on January 27, 2008On Friday, in Harrell v. Bowen, the NC Supreme Court held that punitive damages are unavailable when the wrongdoer is dead.Writing for the Court, Justice Brady relied on the plain meaning of G.S. § 1D-1. Entitled "Purpose of punitive damages," it provides: ?Punitive damages may be awarded, in an appropriate case and subject to the provisions of this Chapter, to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts...
NC SCT Declares Arbitration Agreement Unconscionable In Landmark Case
Posted on January 26, 2008On Friday, a fractured NC SCT held in Tillman v. Commercial Credit Loans, Inc. that an arbitration agreement attendant to a consumer loan was unconscionable -- a first in NC appellate law. In the wake of that opinion, businesses will have to grapple with how to secure arbitration agreements with consumers while ensuring that they expose themselves to neither "bargaining naughtiness" nor substantive unconscionability claims...
Fourth Circuit Banter On Suppression Of Evidence
Posted on January 25, 2008This is off subject for this blog, but today's Fourth Circuit decisions include a very interesting dispute between Chief Judge Williams (writing the lead opinion) and Judge Gregory (dissenting) on the issue of "reasonable suspicion" in the context of a Terry stop -- and in particular whether a seasoned officer's hunch can satisfy that standard...
NC Supreme Court Action Today
Posted on January 25, 2008Today the NC Supreme Court released orders and opinions.As for opinions: the Court released 12 decisions. Six are per curiam reversals or affirmances. The other six are opinions. The 12 decisions include five reversals. Four of the 12 decisions are termination-of-parental-rights cases (the Court of Appeals had reversed termination in several cases); it appears that, when the dust settles from the various affirmances and reversals in these cases, the result in each case is termination of parental rights...
Fourth Circuit Upholds ADA Punitive Damage Award
Posted on January 23, 2008Today in EEOC v. Federal Express Corp. the Fourth Circuit rejected a challenge by FedEx to a punitive damages award in an ADA case. A jury found an ADA violation and awarded the employee $100,000 in punitive damages on top of $8,000 in compensatories...
Split Fourth Circuit Panel Rules Against Employer In ADA Case
Posted on January 23, 2008Today in Wilson v. Phoenix Specialty Mfg. Co. the Fourth Circuit affirmed an ADA judgment against an employer. The district court, after a bench trial, found that the employer terminated plaintiff's employment because it regarded him as disabled by his Parkinson's disease, i...
Split Fourth Circuit Affirms Denial Of Benefits In ERISA Case
Posted on January 23, 2008Today in Stanford v. Continental Casualty Co., an ERISA case, the Fourth Circuit affirmed the denial of long term disability benefits to an employee who was at risk of relapse into drug addiction for a painkiller-narcotic he administered in the course of his employment as a trained nurse anesthetist...
SCT To Issue Decisions This Friday
Posted on January 22, 2008As a reminder, the NC Supreme Court is scheduled to issue orders, and presumably also opinions, this Friday, January 25.
Fourth Circuit Nominee Withdraws
Posted on January 21, 2008Duncan Getchell of Virginia, one of President Bush's more recent Fourth Circuit nominees, has withdrawn his nomination after concluding that Democrats in the Senate would block confirmation.
NC COA Splits Over NC SCT Authority V. US SCT Authority
Posted on January 16, 2008In Andrews v. Haygood, a divided COA panel held that NC's Division of Medical Assistance has an automatic lien on all settlement funds of a medicaid recipient. The COA majority based its ruling on NC precedent, while Judge Wynn, dissenting, would have held that US SCT precedent should have been considered and controlled...
4th Circuit Refuses to Delve Into N.C. Tax
Posted on January 16, 2008The Fourth Circuit, in DIRECTV, Inc. v. Tolson, refused last week to delve into the arena of NC state taxation. DIRECTV and Echostar Satellite, LLC brought suit, arguing that a state taxation system was unconstitutional. The Fourth Circuit affirmed the dismissal of the suit and held that federal courts won't enjoin states from levying taxes, won't alter the state's allocation of taxation authority, and that suits alleging constitutional violations due to state taxation are barred in federal court so long as state courts also provide adequate remedies.
Split COA Invalidates Restrictive Covenants
Posted on January 16, 2008Yesterday the Court of Appeals (COA) held in a split decision that restrictive covenants were enforceable on the ground that they weren't sufficiently definite. The case is Southeastern Jurisdictional Administrative Council, Inc. v. Emerson. It is an important case about how to draft covenants for developments and whether owners/developers can lawfully collect service fees from lot owners when their restrictive covenants don't delineate the fees...
Justice Timmons-Goodson Addresses Fort Bragg
Posted on January 16, 2008Here's a story on Supreme Court Justice Timmons-Goodson's address yesterday at a Fort Bragg event honoring MLK.
COA Starts New Year With Mass Reversals
Posted on January 15, 2008Of the 34 published opinions released today by the Court of Appeals (the first batch of opinions for 2008), 17 of them -- 50% -- reversed or vacated trial court orders in whole or in part. Obviously that's a pretty high reversal rate.
COA: State's Alter Ego Allegation Insufficient To Establish Personal Jursidiction
Posted on January 15, 2008Today in State v. Ridgeway Brands Mfg., LLC the Court of Appeals (COA) rejected the State's effort to establish personal jurisdiction over an Arizona corporation in a suit to collect money arising from obligations under the tobacco Master Settlement Agreement...
COA Vacates Criminal Contempt Because It Was Based On Acts Occuring After Show Cause Order
Posted on January 15, 2008Today in State v. Coleman the Court of Appeals (COA) clarified that (generally) a party cannot be held in criminal contempt based on acts committed on dates other than the dates charged in the show cause order. In this case, after the plaintiff moved to hold the defendant in criminal contempt for violating a TRO, the trial court issued a show cause order, which in the criminal contempt context is akin to an indictment...
COA Holds That Prelim Injunction Entered Without Notice Is Immediately Appealable
Posted on January 15, 2008Today in Perry v. Baxley Dev. Co., the Court of Appeals (COA) held that a preliminary injunction (PI) entered without notice affects a "substantial right" and thus is immediately appealable even though it's an interlocutory order. (Under NC law, like federal law, a PI can issue only after notice and a hearing...
COA Splits On "Substantial Fault" Standard For Unemployment Benefits
Posted on January 15, 2008Today the Court of Appeals (COA) issued a split decision applying the "substantial fault" standard governing unemployment benefits claims. The majority (Judges McGee and Elmore) ruled in favor of the employee and reversed the decision of the Employment Security Commission (ESC)...
COA Reminds: Rule 60 Is Not Substitute For Appeal
Posted on January 15, 2008Today, in Catawba Valley Bank v. Porter, the Court of Appeals (COA) delivered a harsh reminder: if a judgment is entered against your client based on an error of law, you must appeal the erroneous judgment rather than seek relief pursuant to Rule 60; if you seek Rule 60 relief rather than appealing, you will bound by the erroneous judgment, even if the trial court agrees with you...
COA Opinions Released
Posted on January 15, 2008Today the Court of Appeals released its first batch of opinions for 2008. There are 34 published opinions, of which 14 are criminal and 20 are civil. There appear to be eight dissents. More on these decisions later.
COA To Hear Wake Schools Case Tomorrow
Posted on January 08, 2008Tomorrow the Court of Appeals will hear argument in the highly publicized case arising from the Wake County School Board's plan to convert 22 elementary and middle schools to a mandatory year-round schedule. In a challenge to the plan brought by a parents' group, Judge Howard Manning ruled against the Board, holding that the students couldn't be reassigned to year-round schools without parental permission...
"My Computer Ate My Homework" May Work To Extend Notice Of Appeal Deadline At Federal Level
Posted on January 04, 2008The federal courts seem to take a softer approach to violations of their rules of appellate procedure than NC's courts have, particularly over the past 2 years. An example of this was seen today, when the U.S. Court of Appeals for the Federal Circuit held in Gilda Industries Inc...
More On Last COA Drop
Posted on January 03, 2008As Sean noted below, the next COA drop date is not for another 12 days. In the interim, some more about the cases from the last COA drop in December:Baker v. Lanier Marine Liquidators, Inc.:In Baker, the COA held that the trial court had personal jurisdiction over a Georgia defendant in a case brought by an NC consumer...
Schedule For January 2008
Posted on January 02, 2008As we embark on 2008, here are a few scheduling items of interest:* Opinions: The NC Court of Appeals has only one opinion drop this month, and it's on Tuesday January 15. The NC Supreme Court is scheduled to release orders (on petitions) on January 25, and because the Court typically releases opinions the same day, we can expect opinions that same day...
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Can a city library prevent you from using thier facilities based on a school district being from another city reaching into your city?
that seems a little ridiculous that they would do that. libraries are supposed t...
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Although in most states there is generally no legal requirement that a will be d...
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