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• More about minor settlements in NC: a caution about provisions in the settlement order regarding a child’s medical expenses

  This entry was contributed by Cheryl Howell on September 16, 2019 at 3:03 pm and is filed under Civil Practice.

  My colleague Ann Anderson previously wrote about minor settlements in a blog post which may be found here.

  From Ann’s post: “Although [unemancipated] 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) … 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).”

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• What Can the District Court Do in an A/N/D or TPR Action when an Appeal Is Pending?

  This entry was contributed by Sara DePasquale on August 2, 2019 at 1:12 pm and is filed under Child Welfare Law.

  The North Carolina Juvenile Code (G.S. Chapter 7B) establishes the substantive law for abuse, neglect, dependency (A/N/D) and termination of parental rights (TPR) actions and also sets forth specific procedures. Although A/N/D and TPR cases are civil proceedings, many of the juvenile procedures differ from the general rules that apply to civil actions. One of the procedural differences applies to the district court’s jurisdiction in the underlying action when an appeal is pending. Continue Reading

• Amending the Defendant’s Name: Correcting a Misnomer or Adding a New Defendant?

  This entry was contributed by Ann Anderson on June 7, 2019 at 4:01 pm and is filed under Civil Procedure-General.

  A hypothetical:  Mr. Stone filed a tort action against a nearby grocery store after he was injured in the dairy aisle. A week later—just after the statute of limitations expired—Mr. Stone’s attorney discovered that the complaint and summons misstated Defendant’s name. The attorney moved to amend the complaint and summons to change the store’s name from “Brightline Foods, Inc.” to “Brightline Foods NC, Inc.,” and the court allowed it.  Now Brightline Foods, NC, Inc. moves to dismiss the suit, arguing that Mr. Stone did not sue it before the statute of limitations expired. Should the trial court grant the dismissal?  The answer lies in whether Mr. Stone actually corrected a “misnomer” of the original Defendant or named a new Defendant altogether. Continue Reading

• Grandparent visitation: termination of parent’s rights does not terminate grandparent’s court ordered visitation

  This entry was contributed by Cheryl Howell on April 10, 2019 at 9:00 am and is filed under Family Law.

  The court of appeals recently reversed a trial court decision that a judgment terminating a mother’s parental rights voided a court order entered five years earlier granting her mother visitation with her grandchild. In Adams v. Langdon, (NC App March 19, 2019), the court of appeals held that the termination of the mother’s rights had no impact on the visitation rights the trial court ordered for grandmother before mother’s rights were terminated.

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• “You’ve Been Served?”: Private Process Servers in North Carolina

  This entry was contributed by Ann Anderson on March 8, 2019 at 8:21 pm and is filed under Civil Procedure-General.

  According to Hollywood, court process is served by guys wearing backward baseball caps pretending to deliver pizzas. They roll up, toss a summons-stuffed cardboard box at an unsuspecting defendant-to-be, then ride away proclaiming, “You’ve been served, dude!” (Remember Seth Rogan practicing for the gig in Pineapple Express? Oh, wait. I mean, no, I haven’t watched that movie either.)

  Of course this isn’t how private process servers really do things. Even in states where private process servers are authorized to do this work, they typically have to follow a tighter set of rules. But in North Carolina, things are even stricter—the use of private process servers is very limited in the first place.  In most cases, the sheriff is the proper service agent for personal service of summonses, and the sheriff must refuse or neglect to serve, or must actually try and fail to effectuate service, before private process servers come into play.  Locklear v. Cummings, 822 S.E.2d 587, 593 (N.C. Ct. App. 2018); N. Carolina State Bar v. Hunter, 217 N.C. App. 216, 224 (2011). Continue Reading

• When the Nanny Won’t Leave: NC Law on When Employees are Tenants

  This entry was contributed by Dona Lewandowski on November 18, 2018 at 5:19 pm and is filed under Small Claims Law.

  In 2014 the story of a California family and a live-in nanny who refused to leave after her employment ended made international news –- including Dr. Phil! According to media accounts, the parties agreed that the nanny would provide childcare and light housekeeping in exchange for room and board. An argument ensued as to whether the nanny was performing her duties as originally agreed, and her employment was terminated. When the nanny retired to her bedroom rather than vacating the property, the situation deteriorated further. Law enforcement refused to intervene, saying the dispute was “a civil matter.” Eventually the nanny voluntarily moved out. One media account  commented, “Even though the nanny is gone, [one of the family members] says she still casts a long dark shadow in her home, saying, ‘As far as I see it, she’s, in a way, like a vampire and she hasn’t yet drained us.’”  

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

  This entry was contributed by Sara DePasquale on August 24, 2018 at 4:39 pm and is filed under Child Welfare Law.

  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

• More than the Budget: Estate and Power of Attorney Changes Circulating at the Legislature

  This entry was contributed by Meredith Smith on June 8, 2018 at 6:00 am and is filed under Estates, Power of Attorney.

   

  UPDATE:  During the third extra session of 2018, the General Assembly passed House Bill 1025.  It was signed by Governor Cooper and became law effective December 14, 2018.  It is now Session Law 2018-142.  The full text is available here.  Senate Bill 778 did not pass.

  UPDATE #2: Although SB 778 did not pass during the 2018 legislative session, Session Law 2019-178 incorporated identical provisions of SB 778 described in Sections A, C and D below.  Session Law 2019-178 went into effect on July 26, 2019.

  In all of the hustle and bustle of news related to the budget, you may have missed a bill filed that impacts law regarding estates and powers of attorney.  Below are just some of the changes that would occur if Senate Bill 778 becomes law.  You can follow along with the progress of this bill here.   [Note, House Bill 1025 includes some of the changes in SB 778 related to powers of attorney as indicated below; HB 1025 does not include the living probate, estate administration, or electronic wills changes described in this post. You can follow along with the progress of HB 1025 here.] Continue Reading

• A Judgment for Possession Is Only Step 1 in Summary Ejectment Cases

  This entry was contributed by Dona Lewandowski on May 31, 2018 at 2:43 pm and is filed under Small Claims Law.

  Most small claims actions in North Carolina are for summary ejectment:  an action by a landlord asking the court to terminate the lease of a breaching tenant and award possession to the landlord. In residential leases, landlords are prohibited by law from “self-help” evictions – i.e., forcibly removing a tenant and his property, padlocking the premises, or rendering the premises uninhabitable by cutting off electricity or water. GS 42-25.6. The magistrate’s role in summary ejectment ends when the magistrate makes a decision (enters judgment). But for the landlord, a favorable judgment is simply the first step in a lengthier and more complicated process.

  Consider the following scenario: Laura Landlord wins her summary ejectment action against Tommy Tenant. The magistrate announces a decision in Laura’s favor and completes a written judgment form. With a copy of the written judgment in hand, Laura might understandably assume that Tommy must immediately vacate the property, but that is not the case. That written judgment is not the piece of paper she needs to oust Tommy. The value of the judgment is that it entitles Laura to ask the clerk to issue a writ of possession directing the sheriff to remove Tommy. But that’s not going to happen tonight – or tomorrow. First, we must wait to see whether Tommy appeals the magistrate’s judgment. Continue Reading

• Intervention in Custody and Child Support Cases

  This entry was contributed by Cheryl Howell on May 16, 2018 at 9:20 am and is filed under Civil Procedure-General, Family Law.

  It is not uncommon for third parties to assert rights or claims against parents litigating child custody and child support. For example, grandparents frequently want the court to grant them visitation rights as part of a custody order resolving a dispute between the child’s mother and father. Similarly, the IV-D child support enforcement agency or a non-parent who has been caring for a child often need to assert rights or claims in child support cases pending between the child’s parents.

  Before these people can assert claims or rights in an existing case, they must become parties to the case through the process of intervention.

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