Articles in the Civil Practice category - Page 4 of 7

Last Friday the North Carolina Supreme Court issued an opinion that should prick up the ears of any physician, hospital, or healthcare facility that asks its patients to agree to binding arbitration in the event of a dispute.  In King v. Bryant (January 27, 2017), the court’s majority held that a physician was in a fiduciary relationship with a new patient at the time the patient signed an arbitration agreement at his initial intake.  The majority then concluded that, because the physician’s office did not take sufficient measures to disclose the nature and import of the agreement, but instead effectively buried it among other intake papers, the agreement was the product of breach of that fiduciary duty.

Background. The procedural history of the case is complex, but here are the essential facts and lower-court findings that led to the ruling:

In 2009, Mr. King was referred to a surgeon, Dr. Bryant, for a hernia repair.  While Mr. King was in the waiting area before meeting Dr. Bryant for the first time, the desk employee asked him to complete forms seeking his medical history and to sign several documents, among which was an arbitration agreement.  This was the routine practice in the office for new patient intake.  After meeting with Dr. Bryant, Mr. King signed another series of health-related and insurance forms.  Believing all the documents to be “just a formality,” he did not read them before signing.  During the surgery, Dr. Bryant injured Mr. King’s distal abdominal aorta, requiring substantial additional hospital treatment and causing significant injury to Mr. King’s right leg and foot.  Mr. King filed a medical malpractice action about two years later.

What happens when a creditor gets a judgment against a debtor in Alabama (or another state) but then the judgment debtor moves to North Carolina, or the bulk of its property is in North Carolina?  Can the creditor can get its “foreign” (meaning out-of-state, not out-of-country) judgment enforced in North Carolina?  Yes, and typically the most efficient way is to follow the steps in North Carolina’s version of the Uniform Enforcement of Foreign Judgments Act (“UEFJA”), G.S. 1C-1703 through -1708.

If the creditor follows the UEFJA’s filing and notice requirements, the foreign judgment will be “docketed and indexed in the same manner as a judgment of this State.”  The creditor can seek enforcement of the judgment just as if it had originally been entered in North Carolina.  But the UEFJA further provides that the judgment “is subject to the same defenses as a judgment of this State[.]” G.S. 1C-1703(c).  To that end, before enforcement can begin, the judgment debtor has a 30-day window to file a motion for relief from (or notice of defenses to) the judgment.  G.S. 1C-1704(b).  The UEFJA goes on to state that the debtor can raise “any other ground for which relief from a judgment of this State would be allowed.” 1C-1705(a).

On the face of things, the UEFJA’s “same defenses” and “any other ground” language seems pretty broad and appears to open up all kinds of challenges.  But does it really mean all defenses that a debtor might raise to enforcement of a North Carolina judgment?  More pointedly, does every Rule 60(b) basis for “relief” from judgment apply?

Lawyers typically don’t litigate (nor judges adjudicate) for very long in North Carolina without confronting Rule of Civil Procedure 60(b).  This rule allows a trial court to “relieve a party…from a final judgment, order, or proceeding” for a number of reasons based in equity. The reasons are divided into six categories:

• Mistake, inadvertence, surprise, or excusable neglect;
• Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
• Fraud…, misrepresentation, or other misconduct of an adverse party;
• The judgment is void;
• The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
• Any other reason justifying relief from the operation of the judgment.

Unlike Rule 50 (JNOV) and 59 (new trial) motions, which must be made within 10 days after judgment, Rule 60(b) motions may be filed up to one year from the order (or, for the last three categories, potentially even later), as long as the timing is reasonable. There will be occasions when the moving party can be heard by the same judge who issued the order.  But often the passage of time can make this difficult: The judge may be presiding in a different district or may be ill, on leave, or no longer on the bench.  It’s not surprising, then, that fairly often my colleagues and I are asked:  May a judge other than the original judge hear and rule on a Rule 60(b) motion?

Last month John Oliver made headlines across the country when his TV show, Last Week Tonight, did an episode focusing on common practices by debt buyers.  To illustrate how easy […]

In honor of this short court week, here’s a brief post answering a question I’ve been asked a few times:  When a statute authorizes a court to award reasonable attorney […]

In civil litigation, delays can seem almost inevitable. Because litigation happens in the real world and not a perfect one, the Rules of Civil Procedure allow a little flexibility.  Within […]

Anyone who has ever been a juror in a civil trial probably remembers the judge’s repeated instructions not to talk to anyone about the case prior to deliberations, to avoid communications with parties, witnesses, and attorneys, to report to the bailiff when anyone tries to talk to a juror about the case, to avoid media coverage of the trial, to refrain from doing independent investigation (nope, not even casual Googling), and to base the verdict only on the evidence.  The whole point, of course, is to make the trial as fair as possible.  But what if a juror goes astray? When can a losing party get relief based on the juror’s misdeeds?

Rule 59 of the North Carolina Rules of Civil Procedure sets out nine categories of grounds for a new trial. Among them is Rule 59(a)(2), which in part allows a court to grant a new trial based on “misconduct of the jury.”  Yesterday in Town of Beech Mountain v. Genesis Wildlife Sanctuary, Inc., the Court of Appeals assessed whether the trial judge should have ordered a new trial where,

Even if you don’t know much about North Carolina’s Rules of Appellate Procedure, you probably know this:  There’s a 30-day time frame in which to appeal a civil judgment, and this deadline is jurisdictional—an untimely notice of appeal “mandates dismissal” of the appeal.  E.g., Bailey v. State, 353 N.C. 142, 156 (2000).  In other words, Thou Shalt Not Miss Thy Appeal Deadline.  Naturally, then, a would-be appellant needs to know when the 30-day appeal period begins and ends.

The general time requirement is set out in Rule 3(c)(1), which makes clear that the notice of appeal must be filed and served within 30 days after entry of judgment as long as “the party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 of the Rules of Civil Procedure.”  (Served pursuant to Rule 5 within three days of entry of judgment.)  Under Rule 3(c)(2), however, when the party is not served within that three day period, the notice of appeal must be filed and served within 30 days “after service upon the party of a copy of the judgment.”

By the plain language of Rule 3(c)(2), a party not served within three days would be led to think that its 30-day appeal clock starts when service is made.  Not so fast.  In a series of fairly recent opinions, the Court of Appeals has held that, if the appellant had some sort of actual notice of the judgment during those three days after its entry, Rule 3(c)(2) does not apply.  If there was actual notice, the 30 days instead began to run upon entry of judgment.  Here, in brief, are the opinions:

Given the ever-increasing number of family law cases in the district courts, it is not surprising that questions frequently arise concerning the court’s authority to place limitations on the amount of court time allowed to individual cases. My former colleague Michael Crowell wrote a bulletin titled Time Limits several years ago thoroughly discussing the law addressing this question. Below are excerpts from his article. The entire bulletin can be found at https://www.sog.unc.edu/sites/www.sog.unc.edu/files/reports/aojb0902 pdf.

A minor injured through negligence or other wrongdoing may bring an action through a representative to recover damages for pain and suffering, permanent injury, and impairment of earning capacity. (A claim for reimbursement of the minor’s medical expenses typically belongs to the parents.) Although 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). Even if the settlement is arranged by a parent, guardian, guardian ad litem, estate administrator, or attorney, the minor cannot be bound absent prior court approval. Sell v. Hotchkiss, 264 N.C. 185, 191 (1965); In re Reynolds, 206 N.C. 276 (1934); Hagins v. Phipps, 1 N.C. App. 63 (1968). The rule applies not just to claims settled after an action is filed, but also to pre-litigation settlements including waivers of a minor’s right to sue. Creech v. Melnik, 147 N.C. App. 471, 475 (2001).

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).