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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Keywords: Rule 59
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Court Approval of Minor Settlements in North Carolina
A minor injured through negligence or other wrongdoing may bring an action through a representative to recover damages for pain and suffering, permanent injury, and impairment of earning capacity. (A claim for reimbursement of the minor’s medical expenses typically belongs to the parents.) Although 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). Even if the settlement is arranged by a parent, guardian, guardian ad litem, estate administrator, or attorney, the minor cannot be bound absent prior court approval. Sell v. Hotchkiss, 264 N.C. 185, 191 (1965); In re Reynolds, 206 N.C. 276 (1934); Hagins v. Phipps, 1 N.C. App. 63 (1968). The rule applies not just to claims settled after an action is filed, but also to pre-litigation settlements including waivers of a minor’s right to sue. Creech v. Melnik, 147 N.C. App. 471, 475 (2001).
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). 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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Imputing Income: So What is Bad Faith?
In my last post, Imputing Income: Voluntary Unemployment is Not Enough, I wrote about the bad faith rule; the long-established rule that child support and alimony orders must be based on the actual present income of the parties unless there is cause to impute income. When income is imputed, a support order is based on earning capacity rather than actual income. The bad faith rule provides that earning capacity can be used only when a party is intentionally depressing actual income in deliberate disregard of a support obligation.
So what findings of fact are sufficient to establish bad faith?
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Subject Matter Jurisdiction in Actions for Summary Ejectment
For hundreds of years, the law has provided a procedure for landlords to obtain assistance from the justice system in ousting a tenant and taking back rental property. In North Carolina in the late 19th Century, just as today, “proceedings in ejectment” were one of the most common types of civil cases filed. I recently spent some time reading many older landlord-tenant cases in an effort to trace the development of the law pertaining to subject matter jurisdiction in summary ejectment cases. I began with some reservations about the continued relevance of these cases. After all, North Carolina’s entire court system was revised – and the Rules of Civil Procedure adopted– after many of these cases were decided. Justices of the peace no longer hold court, and appeal from small claims court is to district—not superior—court today. What I found striking in doing this research was actually how little has changed. The questions in the late 1800s may have used different legal terminology, but would be familiar to any small claims magistrate. One of the most common issues, for example, was whether a seller/landlord could regain possession of property subject to a rent-to-own agreement by way of summary ejectment. Another was whether a buyer by way of foreclosure could use summary ejectment to oust the former owner. What I found is that the rules governing jurisdiction in ejectment cases have remained remarkably consistent in application, although the underlying rationale for the rules has, from the beginning, been considerably more variable. This post attempts to summarize those procedural rules where they are clear. In my next post, I’ll discuss some troublesome areas in which clarity is lacking. Continue Reading
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Imputing Income: Voluntary Unemployment is Not Enough
Beware. A child support or alimony order should never contain the word “capacity” or the words “ability to earn” unless it also contains the words “bad faith.”
Maybe that statement is a little extreme, but it is intended to make a point. Alimony and child support obligations must be determined based on actual present income. Earning capacity rather than actual income can be used only when a party is intentionally depressing actual income in deliberate disregard of a support obligation. In other words, it is not appropriate for an order to be based on what a person should be earning- or on minimum wage – rather than on what that person actually is earning unless evidence shows the party is acting in bad faith and the court actually includes that conclusion of law in the order.
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Expert Witness Fees as a Civil Cost – An Amendment to the Statute
I promised to follow up my last post with a discussion of that little change in S.L. 2015-153 to G.S. 7A-314, the witness fee statute. First some background: General Statute 7A-305 sets out the costs assessable in North Carolina civil actions. [Note that liability for costs in a given case is generally determined under G.S. Chapter 6.] Subsection (d) of 7A-305 lists the expenses of a party that may be recovered as costs. Prior to 2007, there was confusion about whether the list of expenses in 7A-305(d) was exclusive, or whether additional expenses—such as expert witness fees—could also be awarded in the court’s discretion. Then, in July 2007, the statute was amended to make clear that subsection (d) was indeed an exclusive list. The list was also expanded to include several other types of expenses, including “reasonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings.” 7A-305(d)(11)(emphasis added). Soon thereafter, the Court of Appeals held that this very limited category of expert fees could only be awarded if the expert witness was under subpoena. See Jarrell v. The Charlotte Mecklenburg Hosp. Auth., 206 N.C. App. 559 (2010) (reiterated in Peters v. Pennington, 210 N.C. App. 1 (2011) and Lassiter v. North Carolina Baptist Hospitals, Inc., 761 S.E.2d 720 (N.C. App. 2014)) [see comments section below for update].
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And Now We Don’t Have to Record Ex Parte DVPO Hearings
In Stancill v. Stancill, 773 SE2d 890 (NC App, June 16, 2015), the court of appeals held that a hearing on a request for an ex parte DVPO pursuant to Chapter 50B is a “civil trial” within the meaning of GS 7A-198 – a statute that requires that all “civil trials” be recorded when court reporting personnel is unavailable. But the recording requirement for these ex parte orders was short-lived. The General Assembly very quickly amended GS 7A-198(e) to specifically exclude ex parte and emergency hearings conducted pursuant to GS Chapters 50B and 50C on or after July 31, 2015.
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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
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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.