On the Civil Side

A UNC School of Government Blog

https://civil.sog.unc.edu

  • Reviewing Structured Settlement Sales: The Courts’ Role

    This entry was contributed by Ann Anderson on December 11, 2015 at 5:00 am and is filed under Civil Practice, Civil Procedure-General, Judicial Authority.

    “Get Cash for Your Structured Settlement Payments NOW!” “See What Your Structured Settlement Payments Can Do!” “Get the Cash You Need Now!”

    Ever see ads like these and wonder what they’re all about? If you’ve heard of structured settlements, you may know that they are a way for injured parties to receive compensation for their injuries over time—in periodic payments—rather than in an immediate lump sum. Typically funded through the purchase of annuities, these settlements promote financial stability for injured people by preventing the money from dissipating too quickly. They also are a useful way to preserve a minor’s settlement funds until after the minor reaches adulthood. The federal government encourages the use of structured settlements by allowing qualified payments to be excluded from the recipients’ taxable income.

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  • G.S. 42-3: The Landlord’s Life Preserver

    This entry was contributed by Dona Lewandowski on December 9, 2015 at 5:00 am and is filed under Small Claims Law.

    At common law a landlord confronted with a non-paying tenant had only one hope for regaining possession of rental property: a lease provision spelling out that the tenant’s default would trigger the landlord’s right to repossess the property (commonly referred to as a forfeiture clause). When the parties have agreed in advance to this consequence for failure to pay rent, an action for summary ejectment merely asks the court to enforce the agreement of the parties. The common law rule was that absent such agreement, the landlord was left to the unsatisfactory recourse of cutting his losses by terminating the lease as soon as possible and attempting to collect unpaid rent through an action for money owed — with all of the attendant problems associated with the collection of money judgments.

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  • Renewal of a DVPO

    This entry was contributed by Cheryl Howell on December 4, 2015 at 5:00 am and is filed under Domestic Violence, Family Law.

    Chapter 50B requires that all civil domestic violence protective orders be of limited duration. GS 50B-3(b). However, that statute also allows the court to extend the life of a DVPO by renewing it at the request of the aggrieved party. Is a court required to renew the DVPO when requested? Is there a limit on the number of times an order can be renewed? Can a court change the terms of the order when it is renewed?  Unfortunately, Chapter 50B provides very little guidance on these and other issues that arise regarding the renewal process.

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  • LME/MCOs and MDEs

    This entry was contributed by Meredith Smith on December 2, 2015 at 2:23 pm and is filed under Guardianship.

    What is an LME/MCO?

     It often feels like the mental health, developmental disabilities, and substance abuse (MH/DD/SA) fields and acronyms go hand in hand.  These acronyms can be confusing and intimidating to people who are not intimately familiar with this area of the law and practice.  This confusion is exacerbated by the fact that over the last few decades, there have been a number of changes to the delivery of public MH/DD/SA services in North Carolina.  One of the major changes was the creation of local management entities/managed care organizations (LME/MCOs).

    The purpose of the LME/MCO is to deliver MH/DD/SA services by using primarily state and federal resources appropriated to them by state government to authorize, pay for, manage, and monitor services provided by their network of private providers.  See Mark F. Botts, Mental Health Services, in County and Municipal Government in North Carolina Ch. 40, at 683 (Frayda S. Bluestein ed., 2014).   As of today, there are eight LME/MCOs under contract with the NC Department of Health and Human Services (DHHS) to provide public MH/DD/SA services in North Carolina.

    What is an MDE?

    LME/MCOs overlap with the world of incompetency and adult guardianship proceedings filed before the clerk of superior court when it comes to the preparation and assembly of multidisciplinary evaluations (MDEs).  An MDE is an important tool in an incompetency proceeding under G.S. Chapter 35A that is used to assist the court in determining: Continue Reading

  • Untimely Filed Juvenile Petitions – What’s the Remedy?

    This entry was contributed by LaToya Powell on November 25, 2015 at 6:22 am and is filed under Juvenile Justice.

    Under G.S. 7B-1703(b), a juvenile court counselor (JCC) has “15 days after the complaint is received” to file the complaint as a juvenile petition, or a maximum of 30 days, if the chief court counselor has granted a 15-day extension. I’m often asked whether an untimely filed petition must be dismissed; and if so, whether the State is precluded from filing another petition for the same offense. There are two published appellate cases addressing these issues; In re D.S., 364 N.C. 184 (2010), and In re J.A.G., 206 N.C. App. 318 (2010). Here’s what they say.

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  • When can the court order surrender of firearms in a DVPO?

    This entry was contributed by Cheryl Howell on November 20, 2015 at 5:00 am and is filed under Domestic Violence.

    Both federal and state law prohibits the possession of firearms by anyone subject to a qualifying domestic violence protective order. However, the fact that possession of firearm is a crime does not give the trial court authority to order a defendant in a 50B proceeding to surrender all weapons.

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  • Rule 17 Stands Alone: The NC Rules of Civil Procedure and Estate Proceedings before the Clerk of Superior Court

    This entry was contributed by Meredith Smith on November 18, 2015 at 11:10 am and is filed under Civil Procedure-General, Estates.

    Way back when in 2011, there was a significant legislative overhaul of estate proceedings in North Carolina. See G.S. 28A-2-4 (defining estate proceedings).  With those changes, the primary statute governing the procedures for an estate proceeding is now G.S. 28A-2-6.  Subsection (e) of G.S. 28A-2-6 addresses the application of the NC Rules of Civil Procedure to estate proceedings. Each rule of civil procedure generally falls into one of three categories when it comes to estate proceedings before the clerk of superior court:

    1. It applies (unless the clerk directs that it does not apply);
    2. It does not apply (unless the clerk directs that it does apply); or
    3. It is Rule 17.

    See G.S. 28A-2-6(e). Continue Reading

  • Equitable Distribution: LLCs and Divisible Property

    This entry was contributed by Cheryl Howell on November 13, 2015 at 5:00 am and is filed under Family Law.

    Because the marital estate ‘freezes’ on the date of separation, see Becker v. Becker, 88 NC App 606 (1988), an increase or decrease in the value of marital property occurring after the date of separation, or income received from marital property after the date of separation, is not included in the marital estate. The category of divisible property was created to allow a court to distribute these postseparation assets along with the marital property. If the change in value or the income is classified as divisible, it can be distributed. If it is not divisible property, the court can do nothing more than consider the income or change in value as a distribution factor.

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  • Attorney Fee Provisions in Business Contracts – New Legislation Loosening the “Sign by Hand” Requirement

    This entry was contributed by Ann Anderson on November 11, 2015 at 5:00 am and is filed under Civil Practice, Civil Procedure-General, Court Costs and Fees.

    First, Some Attorney Fee Basics. North Carolina generally follows the “American Rule” in requiring parties to civil litigation to be responsible for their own attorney fees: “It is well-established that the non-allowance of counsel fees has prevailed as the policy of this state at least since 1879.” Stillwell Enters, Inc. v. Interstate Equip. Co., 300 N.C. 286, 289 (1980). Attorney fee awards are allowed only when specifically authorized by statute. In general, fee-shifting is not allowed even when a party has agreed in a contract to reimburse another party’s attorney fees incurred in enforcing the agreement. Id. Two key statutory exceptions apply, however, to this rule against enforcement of attorney fee agreements. First, and most familiar, is G.S. 6-21.2, which allows enforcement of attorney fee-shifting provisions in notes, conditional sale contracts, and “other evidence of indebtedness.” I discuss the ins and outs of G.S. 6-21.2—enacted in 1967 and the subject of lots of case law—here.

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  • Consenting to Medical Treatment for a Child Placed in the Custody of County Department, Part II: Non-routine and Non-emergency Medical Care

    This entry was contributed by Sara DePasquale on November 6, 2015 at 6:01 am and is filed under Child Welfare Law.

    Part I introduced the new G.S. 7B-505.1 and 7B-903.1(e) and discussed the county department’s statutory authority to consent to a child’s

    • routine medical and dental care;
    • emergency medical, surgical, or mental health care;
    • testing and evaluation in exigent circumstances, and
    • a Child Medical Evaluation (CME).

    What about Medical Care that Is neither Routine nor an Emergency? Continue Reading

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