Articles in the Civil Practice category - Page 2 of 7

Unless you are frequently immersed in mediation practice, you may have missed a recent renaming and overhaul of seven sets of rules governing court mediation in North Carolina.  The updates […]

It’s almost embarrassing how many posts we’ve done about the Servicemembers Civil Relief Act (SCRA). (See here, here, here, and here, and also a bunch of others where it is […]

My colleague Ann Anderson previously wrote about minor settlements in a blog post which may be found here.

From Ann’s post: “Although [unemancipated] minors generally are legally incapable of binding themselves to contracts, the law allows a minor’s claims to be resolved through a settlement agreement. The settlement, however, is not enforceable against the minor unless it has first been investigated and approved by the court. Sigmund Sternberger Found., Inc. v. Tannenbaum, 273 N.C. 658, 677 (1968); Ballard v. Hunter, 12 N.C. App. 613, 619 (1971) … The purpose of the court’s review is to protect the interests of the minor. The investigation must focus on the minor’s welfare and fairness to the minor under the circumstances. See Redwine v. Clodfelter, 226 N.C. 366, 370 (1946) (minor’s welfare is the “guiding star”); Reynolds v. Reynolds, 208 N.C. 578, 631−32 (1935) (affirming “fair, just, and equitable” settlement).”

READ POST "More about minor settlements in NC: a caution about provisions in the settlement order regarding a child’s medical expenses (September 16, 2019)"

I’m writing today about a seemingly simple question: When a tenant lives in one county and rental property is located in a different county, where should a summary ejectment action be filed?  Obviously, most summary ejectment actions involve a tenant who resides ON the rental property, but this is not always the situation. Sometimes, tenants have vacated residential rental property and moved to a new county. Also, in non-residential leases, tenants quite often live in a different county. After researching and thinking about this issue at considerable length, I’ve come to a new and different understanding of the law relevant to this question, which I want to share with you today.

READ POST "Venue, Subject Matter Jurisdiction, and Summary Ejectment (September 9, 2019)"

The Court of Appeals has issued two very recent opinions that remind us that parties may not be sanctioned without proper notice.  The party must have notice not only of the fact that sanctions are on the table but also of the specific basis for those sanctions.

In both cases, the defendant was given a severe sanction that effectively decided the issue of liability in the plaintiffs’ favor.  In neither case did the Court of Appeals suggest that the sanctions themselves were out of proportion to the conduct. The sanctions were reversed because due process demands a degree of notice not provided in either situation.

Elected officials, law enforcement officers, tax collectors, zoning inspectors and other public officials sometimes face lawsuits over decisions they have made or actions they have taken. To prevent the fear of lawsuits from unduly influencing the judgment of public officials, the law extends personal liability protection to them in the form of public official immunity (“POI”).

POI will usually shield public officials from claims of negligent conduct, so long as they acted within the scope of their duties and without malice or corruption. The state’s case law is split, though, over whether POI can ever protect public officials from intentional tort claims such as assault, battery, and trespass. One line of cases answers that question in the negative. In the other line, public officials have successfully invoked POI to defeat intentional tort claims.

The North Carolina Court of Appeals recently issued a decision that comes down firmly on one side of the divide, keeping the split alive. After setting out POI’s basic features, this blog post briefly reviews that case and then examines the split in more detail, concluding that POI probably should be understood to bar some intentional tort claims. The post refers in several places to a 2016 Local Government Law Bulletin published by the School of Government and found online here.

As civil litigators in North Carolina know, in order to support most motions for attorney fees (pursuant to statutes that authorize them), a party must present evidence as to the […]

Rule 9(j)’s special pleading requirement Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation not required in other […]

Small claims magistrates don’t see many lawsuits filed by individuals alleging injury from unfair or deceptive acts (hereinafter, UTP[1]) by persons with whom they’ve done business — but they should. A primary purpose of GS 75-1.1, the relevant statute, is to provide a remedy for consumers injured by unethical or improper behavior in the marketplace, even when the dollar amount of the injury suffered is relatively small. Proving a right to relief under GS 75-1.1, unlike many consumer protection statutes, is simplicity itself, often requiring an injured plaintiff to do little more than relate his story in a clear and persuasive manner. Compared to small claims cases requiring magistrates to interpret and apply multiple statutes in the light of often complicated case law, the straightforward legal principles applicable to UTP cases make them ideal for determination in small claims court. In this blog post, I’ll take a quick look at some of the common procedural issues related to this claim in small claims court, review the general legal principles governing these actions, and briefly discuss case law involving GS 75-1.1 in the context of residential lease agreements.

READ POST "Fairness in the Marketplace Matters in Small Claims Court (March 26, 2018)"

Earlier this month the North Carolina Supreme Court issued its opinion in King v. Albemarle Hospital Authority, holding that a GAL appointment starts the running of the statute of limitations […]