• Only “Proper” Rule 59 Motions Will Toll the Appeal Deadline: New Cases

    To end the week, I’ll point out three recent Court of Appeals opinions that remind us that a Rule 59 (“new trial”) motion will not toll an appeal period if the motion does not actually seek proper Rule 59 relief.  If, for example, the motion does not provide proper notice of the grounds for relief, or if it is being used merely as a general “motion for reconsideration,” it may not be considered “proper.”  As I’ve discussed in previous posts (here and here), North Carolina Rule of Civil Procedure 59 permits a trial judge to order a new trial (or, through Rule 59(e), amendment of judgment) for a number of reasons, including prejudicial irregularity, jury misconduct, newly-discovered evidence, insufficient evidence to justify the verdict, prejudicial error of law, and other bases.  A proper Rule 59 motion tolls the period for appeal of the underlying judgment. N.C. R. App. P. 3(c)(3); G.S. 1-279.1.  But if a court determines that Rule 59 was not the appropriate vehicle for remedy sought, the appeal period will not have been tolled. These three recent published opinions are our newest examples of this outcome: Continue Reading

  • Enforcing custody orders: civil contempt is not always the appropriate remedy

    GS 50-13.3 provides that an order for custody is enforced by civil contempt and its disobedience is punished by criminal contempt. This statute mirrors case law regarding contempt; civil contempt is to force present compliance with an order and criminal contempt is to punish a past failure to comply and to discourage future noncompliance.

    This distinction between civil and criminal contempt has been described by appellate courts as “murky at best,” and recent cases from the North Carolina Court of Appeals illustrate that contempt can be particularly difficult to apply correctly in custody cases. Most importantly however, these cases indicate that civil contempt probably is not an appropriate remedy for the most common enforcement issues that arise in custody cases.

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  • Upcoming Trainings for Civil Defenders

    I am planning two conferences for civil defenders that will be held at the School of Government (SOG). The Guardianship Proceedings for Appointed Counsel conference is scheduled for January 24, 2019 and the Civil Commitment Conference is the following day on January 25, 2019. Currently they are held bi-annually in odd years.

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  • Regions, Regions, Regions: Untangling Different Concepts in Social Services Reform

    When the General Assembly enacted S.L. 2017-41 (H 630) in June 2017, it set several wheels in motion related to reform of the social services system (See legislation; SOG summary). Some of the ideas addressed in the reform conversation involve “regions” or inter-county collaborations. These ideas are often referred to as “regionalization,” but that term is simply too broad to be helpful. There are at least four distinct “regional” conversations underway, and they really need to be differentiated. My goal today is to abandon the term “regionalization” and clarify terminology for these social services reform conversations moving forward.  To that end, this blog post will review the reform ideas related to regional social services work, give them unique names, and provide a brief update on the progress of these conversations. Continue Reading

  • Procedural Fairness: How to Do It and Why It Matters

    More than 200 district court judges from districts across North Carolina convened last week for their semiannual conference. Much of the continuing education agenda was dedicated to informing judges about the controlling law for the types of cases over which they preside—criminal, family and juvenile. But one session had a different focus. Instead of teaching judges how to “get outcomes right,” Judges Kevin Burke and Steve Leben talked to the group about how to handle procedural matters in a “way that enhances perceptions of fair treatment.” Kevin Burke & Steve Leben, The Evolution of the Trial Judge from Counting Case Dispositions to a Commitment to Fairness, 18 Widener L. J. 397, 403-04 (2009) [hereinafter Evolution]. The presenters made the case that institutionalizing principles and practices of procedural fairness can increase public support for and confidence in the courts, leading to greater acceptance of court decisions, greater public approval of the court system and increased compliance with court orders.

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  • Custody Modification: the effects of the same circumstances can be the changed circumstances

    Child custody orders can be modified upon a showing that there has been a substantial change in circumstances affecting the welfare of the child(ren) since the entry of the last custody order and upon a showing that modification is in the best interest of the child(ren). GS 50-13.7; Shipman v. Shipman, 357 NC 471 (2003). Three relatively recent opinions from the court of appeals clarify that the required substantial change does not necessarily need to be the development or occurrence of a new circumstance; the required substantial change can be a change in the way an existing circumstance impacts the welfare of the child(ren).

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  • 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

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