*****Since this article was posted, the NC General Assembly amended the statute governing the division and distribution of retirement benefits and made a significant change regarding the topic of this post. For a discussion of that legislation, see post from October 30, 2019, “Equitable Distribution: Significant legislative amendments regarding retirement accounts and other forms of deferred compensation.”
Continue Reading-
-
The Clerk of Court’s Role in Small Claims Cases
When a litigant presents a complaint and asks that the case be heard in small claims court, a clerk has different responsibilities than when a plaintiff wishes to file any other sort of civil case. Those responsibilities are critically important, and failure to perform them correctly can lead to additional time and effort on the part of court officials, added expense and delay for litigants, and even judgments ultimately declared void. The source of these additional duties are several little-known statutory provisions in G.S. Ch. 7A, Art. 19, governing small claims procedure.
Continue Reading -
So someone forgot to draft that QDRO. Now what?
An equitable distribution judgment was entered 11 years ago. The order states plaintiff is entitled to a percentage of defendant’s retirement pay when defendant begins to receive it. The judgment also states that plaintiff’s counsel will draft a QDRO. Now it is time for defendant to retire but no one ever drafted a QDRO. Is there a problem? Can the court enter one now?
-
Ohio v. Clark: What Does It Mean for Child Protective Services?
Last month the U.S. Supreme Court decided Ohio v. Clark, 135 S.Ct. 2173 (2015). The Court determined whether a teacher’s testimony of a child’s statements to her was barred by the Confrontation Clause. My colleague, Jessica Smith, wrote a blog post about the holding and its impact in criminal cases. But, what about the world of child protective services? Continue Reading
-
Juvenile Code Reform Legislation (HB 879) Becomes Effective December 1, 2015
In a prior post, I wrote about SB 331, which proposed several changes to the delinquency subchapter of the Juvenile Code. That bill didn’t make it. Instead, it became HB 879 (enacted as S.L. 2015-58), which includes several new laws intended to either increase due process protections for juveniles, reduce further entry of juveniles in the delinquency system, or reduce juvenile confinement. Although it’s similar to the prior Senate bill, there are some important differences that you should know about before the new laws become effective on December 1, 2015. One of these laws involves a juvenile age increase, although it’s not quite the change for which “raise the age” advocates were lobbying.
Continue Reading -
More on Voluntary Dismissals: Consequences of Inadequate Pleading
In an earlier post, I talked about some of the deficiencies in a complaint that can prevent a party from taking advantage of the statute of limitations extension in Rule 41(a). In short, if a party voluntarily dismisses without prejudice a claim for which the underlying statute of limitations has expired, and—as it turns out—the complaint was never timely served or was not properly “commenced,” the refiled action is subject to dismissal with prejudice. Last week, the Court of Appeals expanded on this point, holding that Rule 41(a)’s savings provision does not extend the statute of limitations on a claim that failed to satisfy Rule 8(a)(1)’s notice pleading rule.
Continue Reading -
More on DVPOs: What is a ‘Dating Relationship’?
In my last post, Ex Parte DVPOs, I promised more on ex parte DVPOs. But the Court of Appeals issued an important decision this week on another aspect of Chapter 50B – the definition of ‘dating relationship’ – so I’ll come back to ex parte orders later.
-
Funeral Expenses, Time Bars, and Attorney Fees– Oh My!
*This post was updated on July 27, 2015 to incorporate a reference to GS 28A-19-12.
Yesterday, the NC Court of Appeals published an impactful case in the area of estates – In re Taylor, ___ NC App ___ (July 7, 2015). It provides clarity in areas where there has been a varied set of practices from county to county. What did the court say? Continue Reading
-
Special Rules for Summary Ejectment Actions
In my last post, I outlined the most significant procedural differences between general civil actions and actions brought in small claims court, which are governed in large part by GS Ch. 7A, Art. 19. Overall, the procedure in small claims court is simpler, faster, and cheaper. The substantive rules and procedures for summary ejectment, the most common small claims action, are highly specialized and allow for even faster relief. Summary ejectment is a legal action brought by a landlord seeking to remove a breaching tenant from possession of rental property. North Carolina joins a large number of states in offering landlords this carefully crafted remedy, which may at first appear unusual in its provision of frank preferential treatment to a particular group of litigants seeking a particular remedy. The US Supreme Court approved such specialized treatment many years ago, however, pointing out that providing an expedited procedure for these cases makes sense in the larger context of laws prohibiting the common law practice of self-help eviction. “The objective of achieving rapid and peaceful settlement of possessory disputes between landlord and tenant has ample historical explanation and support. It is not beyond the State’s power to implement that purpose by enacting special provisions applicable only to possessory disputes between landlord and tenant.” Lindsey v. Normet, 405 U.S. 56, 72, 92 S. Ct. 862, 873, 31 L. Ed. 2d 36 (1972). In this blog entry, I’ll identify the most significant distinctions between the usual procedural rules applicable to small claims court and those applicable only to actions for summary ejectment.
-
Ex Parte DVPOs
The North Carolina Court of Appeals has had quite a bit to say about ex parte DVPOs in the past few years. Repeatedly recognizing that while “an ex parte DVPO may be short-lived, … it has a potentially long-lasting and serious impact on a defendant, whether or not a DVPO is later issued,” Stancil v. Stancil, NC App (June 16, 2015), the court consistently has interpreted GS 50B-2 strictly.