In lawsuits against units of local government, the general rule is that the trial court must throw out the plaintiff’s claims if the unit raises the defense of governmental immunity and the complaint fails to allege a waiver of that immunity.  This blog post looks at how detailed a waiver allegation must be for a complaint to survive an assertion of governmental immunity.

The Concept of Waiver

As I’ve explained in prior blog posts (here, here, and here), the defense of governmental immunity protects cities, counties, and other units of local government from civil liability for negligence and other claims – though not constitutional claims – that arise from the performance of governmental functions.  The courts have recognized that a unit may waive this immunity through any of the three actions described in the next section.  Essentially, by acting in any of those ways, a unit consents to be sued for any civil claims that fall within the scope of the waiver. Continue Reading

We have a new report available at the School of Government (SOG) for your weekend reading.  The report is titled Multidisciplinary Evaluations Assembled by LME/MCOs in Adult Guardianship Proceedings in North Carolina.  Continue Reading

The following post was written by my colleague Jamie Markham and published on the North Carolina Criminal Blog on August 11, 2016.

One of the first posts I wrote on this blog was about the punishment for criminal contempt. The post included a discussion about whether sentences for contempt could be run consecutively—something our appellate courts hadn’t yet ruled on at the time. In State v. Burrow, the court of appeals approved a trial court’s orders sentencing a defendant to six consecutive 30-day terms of imprisonment for contempt.

Continue Reading

In the recent case of Green v. Green, (N.C. App., Oct. 3, 2017), the court of appeals held that a fee received by a lawyer as the result of the resolution of a case his firm took on a contingency basis before the lawyer separated from his wife was not marital or divisible property. The court based this decision on the fact that the lawyer did not receive the fee until after the date of separation and did not have a right to receive the fee on the date of separation because the agreement provided that no fee would be received if there was no recovery in the case. The appellate court reversed the trial court decision that a portion of the fee was ‘deferred compensation’ for work the husband performed before the date of separation. The trial court had classified this portion of the fee as divisible property pursuant to GS 50-20(b)(4)(b) which provides that divisible property includes property received “as the result of the efforts of either spouse during the marriage and before the date of separation.”

This decision by the court of appeals is significant because it is the first time the court of appeals actually reviewed a decision by a trial court interpreting this particular category of divisible property and because the holding of the appellate court seems to say this category is much more limited than the language of the statute indicates. Continue Reading

Temporary orders are very common in domestic cases; ex parte domestic violence protective orders, temporary custody and child support orders, and orders for postseparation support are some examples. What happens to these temporary orders when plaintiff takes a voluntary dismissal of the underlying claim? Does the temporary order remain in effect until the court affirmatively sets it aside or does a voluntary dismissal automatically terminate all temporary orders? Do findings or conclusions made in the temporary orders have any impact on claims brought after the dismissal?

Continue Reading