While I always have believed a Chapter 50B proceeding requires all three prongs of personal jurisdiction as do most other civil actions, a few appellate courts in other states have held that some DVPOs can be entered without concern for long-arm statutory authorization or the minimum contacts required by Due Process. The North Carolina Court of Appeals finally had the opportunity to address the issue for the first time this week. The court held that because of the significant impact a DVPO has on a defendant, entry of any final DVPO without all three aspects of personal jurisdiction violates “Due Process and offend[s] traditional notions of fair play and substantial justice.”
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Must a Tenant Introduce Opinion Evidence of Fair Rental Value in an Action for Rent Abatement?
On Tuesday the NC Court of Appeals handed down an opinion in Crawford v. Nawrath, a Mecklenburg County case involving the calculation of damages for violation of the Residential Rental Agreement Act (RRAA). The Crawford opinion is unpublished and thus does not constitute controlling legal authority but nevertheless is interesting and informative, both procedurally and substantively.
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No More Nunc Pro Tunc in Civil Cases?
Nunc pro tunc is a phrase used in an order or judgment when the court wants the order or judgment to be effective as of a date in the past rather than on the date the judgment or order is entered into the court record. Black’s Law Dictionary defines the term “nunc pro tunc” to mean “now for then; [a term signifying] ‘a thing is now done which should have been done on the specified date.’” Recent cases from the North Carolina Court of Appeals have made it clear that nunc pro tunc is a tool available only in extremely limited circumstances.
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Enforcing Foreign Judgments – What defenses can a judgment debtor raise?
What happens when a creditor gets a judgment against a debtor in Alabama (or another state) but then the judgment debtor moves to North Carolina, or the bulk of its property is in North Carolina? Can the creditor can get its “foreign” (meaning out-of-state, not out-of-country) judgment enforced in North Carolina? Yes, and typically the most efficient way is to follow the steps in North Carolina’s version of the Uniform Enforcement of Foreign Judgments Act (“UEFJA”), G.S. 1C-1703 through -1708.
If the creditor follows the UEFJA’s filing and notice requirements, the foreign judgment will be “docketed and indexed in the same manner as a judgment of this State.” The creditor can seek enforcement of the judgment just as if it had originally been entered in North Carolina. But the UEFJA further provides that the judgment “is subject to the same defenses as a judgment of this State[.]” G.S. 1C-1703(c). To that end, before enforcement can begin, the judgment debtor has a 30-day window to file a motion for relief from (or notice of defenses to) the judgment. G.S. 1C-1704(b). The UEFJA goes on to state that the debtor can raise “any other ground for which relief from a judgment of this State would be allowed.” 1C-1705(a).
On the face of things, the UEFJA’s “same defenses” and “any other ground” language seems pretty broad and appears to open up all kinds of challenges. But does it really mean all defenses that a debtor might raise to enforcement of a North Carolina judgment? More pointedly, does every Rule 60(b) basis for “relief” from judgment apply? Continue Reading
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No Sua Sponte Change of Venue Allowed
It is not always clear when a court can exercise authority sua sponte, or to put it in English, on its own motion, without a party specifically requesting that the court act. Last week, the court of appeals held that a trial court does not have the authority to change venue sua sponte. Unless a defendant files a timely motion requesting a change and establishes grounds for moving the case to another county, a plaintiff has the right to prosecute a civil case in the county of his or her own choosing.
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Unconscionability, Public Housing & Summary Ejectment
In a prior post, I talked about Eastern Carolina Regional Housing Authority v. Lofton, 767 S.E.2d 63 (2014), a North Carolina Court of Appeals case requiring a landlord seeking summary ejectment based on breach of a lease condition to prove as an essential element of the case “that summarily ejecting [the] defendant would not be unconscionable.” Last week the North Carolina Supreme Court disagreed in a long-awaited opinion, making clear that “the equitable defense of unconscionability is not a consideration in summary ejectment proceedings.” In so doing, the Supreme Court finally put the issue to rest, reconciling inconsistent statements of the law in several Court of Appeals cases, including Lincoln Terrace Associates v. Kelly, Charlotte Housing Authority v. Fleming, 123 N.C. App. 511 (1996), and Durham Hosiery v. Morris. Today, NC law provides that in an action for summary ejectment based on breach of a lease condition, it is sufficient for a landlord to demonstrate that the tenant breached the lease in a manner triggering the right to declare a forfeiture; the landlord has no additional burden to demonstrate that the result of such forfeiture will not be unconscionable. The Lofton opinion, written by Justice Newby, is significant for another reason: the Court also addressed the relative roles of a public housing authority (PHA) and a trial court in a summary ejectment action based on criminal activity in violation of the lease.
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Back to Parenting Coordinators in Custody Cases
***NOTE: After the publication of this blog, the statute dealing with parenting coordinators was extensively amended. See S.L. 2019-172, effective October 1, 2019.
A few weeks ago, I posted blog about Parenting Coordinators (“PCs”) in Child Custody Cases and noted the ambiguity concerning the court’s authority to respond when a PC requests a hearing pursuant to GS 50-97 and identifies changes that need to be made to the existing custody order. Shortly thereafter, the Court of Appeals provided more guidance on this issue. In Tankala v. Pithavadian, NC App (July 19, 2016), the court held that the strict limitation on a court’s authority to “tweak” custody orders – see Blog “No ‘tweaking’ of Custody Orders Allowed – does not necessarily mean the court cannot address problems identified by a PC.
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You Need to Know More Than Just the Law
“We are not criminal defense lawyers. We are civil rights lawyers because being a criminal defense lawyer is kind of limiting”. (Alex Charns, Attorney, Annual Contractor and Assigned Counsel Training, UNC School of Government June 2016).
Considering all the many issues clients present with, referring to ourselves as only a specific type of attorney, such as a juvenile or family law attorney, does seem limiting. Representing people in any area of law requires more of attorneys, especially as they begin to address the multitude of social, health, and economic challenges their clients face.
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It’s My Birthday and I’ll Cry if I Want To; Is That the Norm for Children in Foster Care?
Today is my birthday (for those of you who are wondering, 46). It is my absolutely favorite day of the year. It’s not because of presents or the fact that I can easily justify why I should be the center of attention for the day (yes, I am a Leo). It’s because every year, on August 12th, I know no matter what my sister, my brother, and my mother will call me. It’s not a text; it’s not an email; it’s an actual phone call, with a real conversation. I can count on that predictability. Knowing I’m going to talk to each of them makes me really happy. My mother will call first; my sister will sing me some happy birthday jingle she made up, and my brother will wish me a happy birthday while asking how I’m going to celebrate and what else is happening in my life.
As my birthday approached this year, I found myself thinking about children in foster care and their birthdays. Is there any predictability? Is there a family visit? Are there phone calls? Is the day even acknowledged? I searched the relevant statutes, regulations, and state’s policy manuals, and I couldn’t find anything that addressed a child’s birthday (if there’s something out there that I missed, please let me know). But, the statutory, regulatory, and policy silence does not mean that the court order or the child’s case plan should also be silent. Continue Reading
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Due Process Rights and Children: Fifty Years of In re Gault – Part One
On May 15, 1967, the U.S. Supreme Court granted due process rights to children in the landmark case of In re Gault, 387 U.S. 1 (1967). The case involved 15-year-old Gerald Gault, who was taken into police custody without notice to his parents, held for four days, and committed to a juvenile facility for a maximum of six years for making a prank phone call to his neighbor. He received no prior notice of the charges and was adjudicated delinquent following an informal hearing with a judge without any witnesses or representation by counsel. His case would spark outrage today but was the norm for juvenile proceedings at the time. When the Supreme Court reversed Gault’s adjudication, it transformed the nature of juvenile court by defining basic requirements of due process that now apply to all delinquency hearings. These rights include:
- the right to notice of the charges;
- the right to an attorney;
- the right to remain silent; and
- the right to confront and cross-examine witnesses.
While this decision marked a watershed moment in children’s rights, the language of the Court was not absolute. The Supreme Court did not extend these rights to all juveniles. Gault applies only to juveniles whose adjudication of delinquency may result in commitment to a state institution, which excludes undisciplined juveniles. The Court also limited its holding to the adjudicatory stage, leaving states open to define due process in other stages of juvenile proceedings (i.e., pre-adjudication, disposition, and post-disposition). Gault, 387 U.S. at 13. As a result, the decision did not completely change the legal landscape but left a legal patchwork among state jurisdictions that continues today. This post is the first in a series of posts that will discuss Gault’s impact on juvenile delinquency proceedings in NC and whether Gault’s promise of due process rights for children has been fully achieved.