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.
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Appointment of a GAL Starts the Clock on a Minor’s Med Mal Action
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 for a minor’s medical malpractice claim. During her birth in 2005, the plaintiff, Desiree King, suffered a severe brain injury. In 2008, just under three years later, a medical malpractice action was filed on her behalf by the guardian ad litem (GAL) who had been appointed for her earlier the same day pursuant to Rule of Civil Procedure 17(b). A few months later, the GAL voluntarily dismissed the action without prejudice as permitted by Rule 41(a). Instead of refiling Desiree’s action within one year as Rule 41(a) allows, the GAL refiled in 2015, about six years later. On the hospital’s motion, the trial court dismissed Desiree’s action as time-barred.
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Civil Contempt and “Springing” Orders for Arrest
The following post was written by Daniel Spiegel, a North Carolina Assistant Appellate Defender. It addresses the legality of a purge condition frequently imposed in civil contempt orders entered in child support enforcement proceedings across North Carolina.
This is a very important topic. Please share your thoughts and reactions.
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The Cease Reunification Efforts Shuffle in A/N/D Actions: It’s All about the Timing
NOTE: Since this post was published, S.L. 2018-86 was enacted effective for all initial disposition orders that are effective on or after June 25, 2018. G.S. 7B-901(c) has been amended to add the word “determines” and supersedes the holding of In re G.T., ___ N.C. App. ___, 791 S.E.2d 274 (2016), aff’d per curiam, 370 N.C. 387 (2017). 2018 legislative summaries impacting child welfare are discussed here.
Abuse, neglect, or dependency court proceedings have several different stages, one of which is the dispositional stage. The dispositional stage, which occurs only after a child has been adjudicated abused, neglected, or dependent, has several different types of hearings: initial, review, and permanency planning. During the various dispositional hearings, a court may address reunification efforts, which involve the diligent use of preventive or reunification services by a DSS when a child’s remaining in or returning to the home of a parent is consistent with achieving a safe permanent home for the child within a reasonable period of time. See G.S. 7B-101(18). How a trial court may address reunification efforts, including whether to relieve DSS from making those efforts, differs depending on the type of dispositional hearing. That is what the reunification efforts shuffle is all about. Continue Reading
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To Amend or Not Amend, That is the Question
I recently taught in a course for clerks on proceedings involving minors. One of the sessions related to proceedings to establish facts of birth set forth in G.S. 130A-106 and G.S. 130A-107. Both proceedings are discussed in more detail in Chapter 141 of the NC Clerk of Superior Court Procedures Manual. The session was included on the course agenda in part to highlight the areas where clerks have jurisdiction to enter judgments and orders related to facts of birth and where clerks do not. The two proceedings set forth in G.S. 130A before the clerk provide a mechanism for a person born in NC, whether an adult or a minor, who does not have a recorded birth certificate (G.S. 130A-106) or has unknown parentage and unknown place and date of birth (i.e. the person was abandoned at birth) (G.S. 130A-107) to obtain a judgment from the clerk establishing facts of birth. If the clerk enters a judgment, the clerk then (i) certifies the judgment to the State Registrar, a person appointed by the Secretary of NC Department of Health and Human Services to run NC Vital Records, and (ii) sends a copy to the local register of deeds.
These proceedings are different from a proceeding where a person has a birth certificate and wants to change information on the existing birth certificate. Essentially, the person is seeking to obtain an amended birth certificate because information on the birth certificate is incorrect or new information is known such as the person’s parentage. People often end up in the clerk’s office seeking an order to amend a birth certificate because they have been told by Vital Records in Raleigh or a local register of deeds that a court order is needed for the State Registrar to amend the birth certificate. Continue Reading
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File Under ‘Boring But Important’: Counting Time in Small Claims Court
Small claims magistrates know that the small claims statutes are filled with rules about time limits. For example, small claims cases must be calendared for trial within 30 days of the complaint being filed, but summary ejectment actions must be calendared within seven (excluding weekends and holidays). A defendant must be served no later than five days before trial in all small claims actions other than summary ejectment, which requires only a two-day notice. The list goes on. Magistrates often ask about how to calculate these various time periods and the purpose of this post is to provide information about that often confusing task.
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A Special Thank You to Judges Hobgood, Davis, Doughton, and Beal
Friday night I had the privilege of joining a dinner to honor four retiring (or recently retired) superior court judges who have devoted many years of extraordinary service to the Pattern Jury Instructions Committee. The North Carolina Pattern Jury Instructions—those enormous volumes providing instructions on all manner of criminal, civil, and motor vehicle issues—are continuously updated through the hard work of a committee of ten trial judges. Every month these judges pore over the details of new legislation and appellate opinions, and they sacrifice many weekends each year traveling to the School of Government to craft instructions that best reflect current law. The time commitment is, as they say, “no joke.”
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New Juvenile Justice Resource at the Administrative Office of the Courts
The Office of General Counsel of the North Carolina Administrative Office of the Courts (NCAOC) provides advice and counsel to judicial officials and other NC Judicial Branch employees. They do not provide legal advice to the public or to litigants on either side of a court case. In addition to providing legal counsel, the Office of General Counsel assists Judicial Branch committees, task forces and work groups with the development and management of procedures, programs, and strategies that support the judicial community. They also review, monitor, and summarize legislative bills.
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New Abuse, Neglect, Dependency, and Termination of Parental Rights Resources
I am so happy to announce the availability of the 2017 Manual — Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings in North Carolina.
What’s In It?
This Manual provides easily accessible information about the laws, procedures, and concepts related to abuse, neglect, dependency, and termination of parental rights proceedings in North Carolina. The primary intended audience consists of district court judges, social services attorneys, parents’ attorneys, and guardian ad litem attorney advocates who work in this area of the law.
This 2017 edition is a significant revision of the previous edition (2015) and contains hundreds of pages of new content. It includes changes made to the Juvenile Code by the North Carolina General Assembly in the 2015, 2016, and 2017 sessions as well as appellate decisions published through October 1, 2017. The new content discusses a variety of topics including mandatory concurrent permanency planning, cessation of reasonable efforts and the elimination of reunification as a permanent plan, medical decision-making for a child placed in DSS custody, the reasonable and prudent parent standard, and Foster Care 18−21.
There are nine new checklists that supplement the chapter content and incorporate the legislative changes that apply to the various hearings in abuse, neglect, dependency, and related termination of parental rights proceedings. Before you bypass the chapters to get to the checklists, explore the Manual to see what is in there. Continue Reading
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Military Disability Pay: It’s not marital property but it is income
In an opinion issued yesterday, the NC Court of Appeals reaffirmed that while military disability pay cannot be distributed by a court in equitable distribution, it is income that can be considered when the trial court is looking for a source of payment for a distributive award. Lesh v. Lesh, NC App (Jan. 16, 2018). In reaching this decision, the court rejected the argument that this rule was changed by the recent decision by the US Supreme Court in Howell v. Howell, 137 S. Ct. 1400 (2017), wherein the Court reiterated that federal law prohibits the distribution of military disability in equitable distribution.
Lesh and Howell present a good opportunity to review the law regarding military disability pay in domestic relations cases.