It’s not hard to understand why every state in the United States offers its residents a small claims court. Small claims courts offer two advantages increasingly hard to come by in the court system: they’re cheap, and they’re fast. In 2009 the North Carolina General Assembly took steps to ensure that small claims cases aren’t decided too fast by enacting minimum notice requirements. Prior to this legislation, a small claims defendant might be served Monday evening for a trial held Tuesday morning. The legislation enacted two separate amendments establishing different minimum notice requirements for (1) summary ejectment actions, and (2) all other small claims cases. As we shall see, despite their differences, the guiding principles for magistrates implementing the legislation are the same for both types of lawsuits.
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Who Can Be a Supreme Court Justice
Post Written by Shea Denning
My daughter came home from elementary school last week with notecards seeking support for her nomination to serve as a justice on the U.S. Supreme Court. I think that is it pure coincidence that her politicking coincided with the nationwide interest in potential nominees for the position following the death of Justice Antonin Scalia. But because I, like everyone else, had been thinking about how the vacancy on the court would be filled and by whom, her work got me thinking: Who exactly can be a Supreme Court Justice?
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The Tenant Tenders: Does the Landlord Lose?
In my most recent post, G.S. 42-3: The Landlord’s Life Preserver, I discussed summary ejectment based on the implied forfeiture provision set out in that statute. Confusion about when ejectment may be obtained on this ground, as distinguished from ejectment based on an explicit forfeiture provision in the lease itself, easily ranks #1 on my list of Most Common Summary Ejectment Errors. At the end of my previous post, I promised to next address tender as a defense to an action for summary ejectment. It comes as no surprise that the majority of North Carolina appellate cases involving tender present this same error in a different context. As is so often true in navigating the law of summary ejectment, correct identification of the ground for relief is the first step that renders subsequent steps simple. As we shall see, it is only when the landlord is reaching for the G.S. 42-3 life preserver that tender has potential application to the case.
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New Juvenile Law Bulletin: Applying the Reasonable Child Standard to Juvenile Interrogations After J.D.B. v. North Carolina
Nearly five years ago, the U.S. Supreme Court decided J.D.B. v. North Carolina, a case arising from the police interrogation of a middle school student in Chapel Hill. In a 5-4 decision, the Court ruled that police officers must consider a juvenile’s age when determining whether they must read juveniles their Miranda rights before questioning them. The ruling represents a major shift in Miranda jurisprudence by establishing a different standard for evaluating police interrogations of juveniles – the reasonable child standard. In the years since J.D.B., however, lower courts have not clearly defined how the reasonable child standard impacts the assessment of whether a juvenile was “in custody.” The application of this new standard also raises questions about how North Carolina courts evaluate custody determinations in the school setting. These and other issues are addressed in detail in “Applying the Reasonable Child Standard to Juvenile Interrogations After J.D.B. v. North Carolina” (No. 2016/01). Continue Reading
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Equitable Distribution: When Marital Property is Not Owned by a Party……
In the recent case of Nicks v. Nicks, 774 SE2d 365 (NC App 2015), husband transferred property acquired during the marriage to an LLC and the LLC thereafter was transferred to a trust. All of this occurred before the date of separation. Understandably, the trial judge in the equitable distribution action filed after the parties separated felt that the property transferred to the LLC should be classified as marital property and distributed between the spouses, so the trial court classified the LLC itself as marital property and distributed it the husband as his share of the marital estate. The court of appeals vacated the ED judgment and remanded the case to the trial court after concluding the LLC was not marital property because it was not owned by either or both spouses on the date of separation.
Does this mean a spouse can avoid ED simply by transferring ownership of property to an LLC or other third party before the date of separation, or by allowing family members or others to hold legal title to property acquired with marital funds during the marriage?
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Equitable Distribution: When does the marital LLC have to be joined as a party?
The equitable distribution statutes only give trial courts the authority to distribute marital property. This means equitable distribution is all about – and only about – identifying property owned by either or both spouses on the date of separation and determining how it should be distributed between those two people.
Marital property may include ownership interests in businesses and corporations. Just as parties can own stock in a traditional C corporation, parties also can own an LLC or an interest in an LLC. And just as a court would not be required to join, for example, Exon Corporation or Google before distributing stock owned by the parties, a court is not required to join an LLC in an ED case if the court simply distributes the marital ownership interest in the LLC between the parties.
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New Trial Motions under Rule 59: Only for Post-trial Relief?
North Carolina Rule of Civil Procedure 59 permits a trial judge to order a “new trial” for a number of reasons, including prejudicial irregularity, jury misconduct, newly-discovered evidence, insufficient evidence to justify the verdict, prejudicial error of law, and several other bases. Rule 59 relief is designed to follow fast on the heels of a trial judgment: a new trial motion must be served within 10 days of entry of judgment, and the court cannot extend this deadline. By its plain language, Rule 59 clearly is intended to provide relief after a “trial.” Several of the listed grounds indeed explicitly relate to juries and verdicts or are otherwise relevant only in a post-trial context. And, of course, the stated remedy is itself a new “trial.” To what extent are parties nevertheless allowed to use Rule 59 to seek relief from judgments not resulting from a jury or non-jury trial? And why might it matter? As discussed below, it appears that invoking Rule 59 for appealable orders other than trial judgments could put the movant’s appeal rights at risk.
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Non-Parents’ Right to Counsel in Abuse, Neglect and Dependency Cases
Sara DePasquale wrote a blog on the Role of a Foster Parent in the A/N/D Court Action, which prompted me to explore the role of non-parents, and specifically their right to representation.
Prior to the filing of an abuse, neglect and dependency (A/N/D) petition, the child may be in the care of grandparents, other relatives or friends. They are providing support and maintenance and making daily decisions about the health and welfare of the child. This may be more permanent substitute care compared to the temporary care provided by a foster parent.
Once the petition is filed each parent named in the petition is appointed provisional counsel pursuant to G.S. 7B-602. But what about non-parents? The relative or friend who has custody of or is caring for the child may meet the statutory definition of “caretaker” or “custodian”. See G.S. 7B-101. Also, the child may have a court appointed guardian [G.S.7B-600; G.S. 35A-1202(7) & (10)] at the time the petition is filed. Does the caretaker, custodian or guardian have a right to court appointed counsel if they are indigent? Continue Reading
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The Guardian of Last Resort
After receiving a report and finding a need for protective services, the county department of social services (DSS) requests the DSS attorney file a petition with the court to adjudicate Jane Doe an incompetent adult under G.S Chapter 35A. The matter is heard by the clerk of superior court. DSS, as the petitioner, has the burden of proof. Through the presentation of testimony and other evidence at the hearing, including a multidisciplinary evaluation ordered by the clerk and prepared by DSS, the clerk determines that there is clear, cogent and convincing evidence that Jane is incompetent and that her best interests will be served by appointing DSS as her guardian of the person. Continue Reading
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Children in Foster Care and Sex Trafficking: New NC Policy to Know About
For the last 15 years, there has been an increased awareness of human trafficking in the U.S. That awareness has resulted in various federal and state laws seeking both to prevent human trafficking and protect the victims of human trafficking. See Trafficking Victims and Protection Act of 2000, 22 U.S.A. Chapter 78 (reauthorized in 2003, 2005, 2008, and 2013). Today’s post recognizes that January is National Slavery and Human Trafficking Prevention Month and discusses recent federal laws and accompanying state policy that focus on identifying and providing services to children who are in foster care and are victims of sex trafficking. Continue Reading