• Meet the School’s New Faculty Member: Jacqui Greene

    I’m excited to introduce Jacqui Greene, the School’s new Assistant Professor of Public Law and Government specializing in juvenile justice law. Jacqui relocated with her family from Albany, New York on August 19th and started with the School the very next day. I sat down with Jacqui and interviewed her for this post as a way for you to meet her. Continue Reading

  • Things You Might Not Know About the Residential Rental Agreements Act

    Small claims magistrates are by now thoroughly familiar with GS Ch. 42, Art. 5, the Residential Rental Agreements Act (RRAA). Claims arising under the Act are routinely raised and determined in small claims court. Even so, there are a few aspects of the Act about which I often receive questions. Continue Reading

  • Calling all attorneys! Visit us in Chapel Hill for our live CLE@SOG.

    Spend a fall Friday in Chapel Hill with us for practical legal education and 6.25 hours of live CLE.  Civil and criminal updates, Supreme Court case review, a land use update, special topics, an address from our Attorney General, and more.  Ethics and substance abuse included!  Lunch will be provided on site, and if you’re an out-of-towner (or just want to get out of the house for a night), we’ve arranged some discounted room blocks. Easy parking at the SOG.  All attorneys welcome–private and public sector.  This CLE program is for everyone.  Mark your calendars for November 16 and register with us today!

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  • Amending defective Rule 9(j) certifications under Rule 15(a): The Supreme Court’s new opinion in Vaughan v. Mashburn

    Earlier this month the North Carolina Supreme Court issued its opinion in Vaughan v. Mashburn, an important case interpreting Rule 9(j), the special pleadings rule for medical malpractice actions.

    Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation that the medical care and medical records have been reviewed by an expert who meets certain qualifications and who is willing to testify that there was a breach of the standard of care.  If a plaintiff fails to include the Rule 9(j) language, the complaint “shall be dismissed.”  This special pleading requirement does not apply to other types of malpractice or to ordinary negligence actions. The original aim of the rule was to reduce frivolous med mal litigation; but, as I have noted in the past, in its short life it has generated well over 100 published appellate opinions as courts have grappled with its undefined provisions, reconciled it with other procedural rules, and tried to determine when it does and does not apply.

    Vaughan, the latest such case, centers on whether a party can invoke Rule of Civil Procedure 15 to amend defective language in a Rule 9(j) certification.  Before filing her action, Ms. Vaughan had timely obtained the required expert review of her medical care and medical records.  When her attorney filed the complaint, he included a Rule 9(j) certification, but it was defective in the following sense: it certified that the medical care had been reviewed, but it failed to also state that the medical records had been reviewed.  The medical “records” language had been added to Rule 9(j) in 2011, and the attorney erroneously included the pre-2011 language.  Soon after the complaint was filed, the original statute of limitations expired.  When the mistake in the Rule 9(j) certification was revealed, Ms. Vaughan’s counsel moved to amend the complaint to add the omitted phrase.  Following existing Court of Appeals precedent, the superior court denied the motion to amend as “futile” because, even if granted, the Rule 9(j) certification could not be properly made prior to expiration of the statute of limitations.  Based on its prior decisions (Fintchre (2016); Alston (2016); and Keith (1998)), the Court of Appeals affirmed. Continue Reading

  • The ICPC Applies to an Out-of-State Placement with a Relative in an A/N/D Case, But Is There More to Consider?

    A child has been adjudicated by the district court as abused, neglected, and/or dependent. At the dispositional phase of the case, the trial court determines it is in the child’s best interest to place that child with a relative. In fact, the court is required to give a relative priority when making an out-of-home placement. See G.S. 7B-903(a1). The relative, however, lives in another state. The placement must be made in accordance with the Interstate Compact on the Placement of Children (ICPC). Id. The Court of Appeals recently addressed whether the ICPC applied to an out-of-state relative placement in In re J.D.M.-J., ___ N.C. App. ___ (June 18, 2018). Continue Reading

  • When can the court order surrender of a firearm in a 50C Civil No-Contact Order?

    A couple of years ago, I posted about orders to surrender firearms in Chapter 50B domestic violence protective orders. See https://civil.sog.unc.edu/when-can-the-court-order-surrender-of-firearms-in-a-dvpo/. Earlier this summer, the NC Court of Appeals addressed orders to surrender firearms in Chapter 50C Civil No-Contact Orders. In Russell v. Wofford, (NC App June 19, 2018), the court held that a trial court has “no authority under NCGS Chapter 50C to order defendant not to possess or purchases any firearms, to surrender his firearms, or to revoke his concealed carry permit.”

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  • How the Proposed Constitutional Amendment Would Change Judicial Appointments

    This November, North Carolina voters will be asked to vote for or against a “Constitutional amendment to implement a nonpartisan merit-based system that relies on professional qualifications instead of political influence when nominating Justices and judges to be selected to fill vacancies that occur between judicial elections.” If voters approve the amendment, what will change about the way judges are selected in North Carolina?

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  • New Legislation on Landlord’s Out-of-Pocket Expenses

    One of the General Assembly’s last acts before adjourning in June was the enactment of S.L. 2018-50 (S 224), amending landlord-tenant law in apparent response to a decision by a Wake County Superior Court Judge. See “It’s Landlords vs. Tenants in Eviction Battle,” Raleigh News & Observer 6/18/2018.

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  • Attorney Fee Motions and Judicial Notice of “Customary Fee for Like Work”

    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 time and labor expended, the skill required, the experience and ability of the attorney, and the customary fee for like work.  See, e.g., Cotton v. Stanley, 94 N.C. App. 367 (1989).  In turn, a court’s order awarding a fee must make findings on these issues.  It is typical for the moving party to present evidence of the first three factors through affidavits from the attorneys who did the work.  These affidavits often will include hourly billing statements, invoices, and similar documentation.  As for the fourth factor—“customary fee for like work”–parties often present affidavits from other attorneys confirming that the fee being sought is in line with the relevant market.  In recent years, however, it seems it has become more common (albeit not yet typical) for parties to forgo acquiring these outside attorney affidavits and opt instead to ask the judge to take notice of a reasonable fee.  The idea is that surely a judge—having observed years of billing rates in motion after motion—will be at least as good a source as a practicing lawyer.  But is resorting to the court’s own expertise a permissible way for a party to demonstrate “customary fee”?

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