Archive

• 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

• Consenting to Medical Treatment for a Child Placed in the Custody of County Department Part I: Routine and Emergency Care and Evaluations in Exigent Circumstances

  This entry was contributed by Sara DePasquale on November 4, 2015 at 5:37 am and is filed under Child Welfare Law.

  Through S.L. 2015-136, “An Act to Make Various Changes to the Juvenile Laws Pertaining to Abuse, Neglect, and Dependency,” the General Assembly enacted G.S. 7B-505.1 and G.S. 7B-903.1(e).These two new statutes address medical decision-making authority for a child who is placed in a county department’s custody through an order entered in an abuse, neglect, and dependency action. These new laws apply to all abuse, neglect, and dependency actions that were pending on or filed after October 1, 2015. Continue Reading

• Children in Foster Care, “Normal Childhood Activities,” and the “Reasonable and Prudent Parent” Standard

  This entry was contributed by Sara DePasquale on October 16, 2015 at 7:09 am and is filed under Child Welfare Law.

  On October 1, 2015, several new statutes affecting abuse, neglect, and dependency cases went into effect. Three new statutes specifically address decision-making standards related to social and cultural activities for children who are placed in a county department’s custody because of abuse, neglect, or dependency. The new statutes were created by S.L. 2015-135 and are

  • G.S. 131D-10.2A: Reasonable and Prudent Parent Standard,
  • G.S. 7B-903.1: Juvenile Placed in Custody of Department of Social Services, and
  • G.S. 48A-4: Certain Minors Competent to Contract.

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• New(ish) Protections for Tenants Occupying Foreclosed Property

  This entry was contributed by Meredith Smith on October 9, 2015 at 12:25 pm and is filed under Foreclosures.

   

  UPDATE:  The federal Protecting Tenants at Foreclosure Act was restored without expiration, effective June 23, 2018.  This federal law must be read in conjunction with G.S. 45-21.29 and G.S. 45-21.33A provisions.  The full text of the PTFA is available here.

  UPDATE #2: In response to the restoration of the federal PTFA, Session Law 2019-53 repealed G.S. 45-21.33A and references to G.S. 45-21.33A in G.S. 45-21.29. 

   

  The protections afforded to tenants in foreclosure proceedings under the federal Protecting Tenants at Foreclosure Act (PTFA) of 2009 ended on December 31, 2014.  The act expired and Congress did not extend it.  Effective October 1, 2015, the North Carolina General Assembly enacted a law that partially fills the hole left by the expiration of the PTFA.  This post covers some of the key changes and protections resulting from a new section G.S. 45-21.33A created by S.L. 2015-178 (H 174). Continue Reading

• What Is the Role of a Foster Parent in the A/N/D Court Action?

  This entry was contributed by Sara DePasquale on September 30, 2015 at 5:53 am and is filed under Child Welfare Law.

  A foster parent provides substitute care for a child who has been separated from his or her family because of abuse, neglect or dependency. G.S. 131D-10.2(9a);10A NCAC 70B.0101. When a  parent, relative, guardian, or custodian is unable to care for a child, a foster parent is a critical part of a county department’s plan for arranging for the child’s immediate and temporary safety. Foster parents are likely to have relevant information that will assist a court in determining what is in the child’s best interests. Foster parents may also be interested in adopting a child who has been placed in their care. Does a foster parent have a right to participate in the court proceeding?

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• Standby Me: New Legislation on Standby Guardianship

  This entry was contributed by Meredith Smith on September 23, 2015 at 8:53 am and is filed under Guardianship.

  Vern and Jane are divorced and have one son, Teddy, who has severe intellectual and developmental disabilities.  When Teddy turns 17 ½ years old, Vern files a petition with the clerk of superior court of Unreal County to have Teddy adjudicated incompetent and an application to be appointed as Teddy’s guardian.  G.S. 35A-1105; G.S. 35A-1210.  After a hearing, the clerk finds clear, cogent, and convincing evidence of Teddy’s incapacity and enters an order adjudicating Teddy incompetent.  G.S.  35A-1112(d).  The clerk appoints Vern as Teddy’s guardian of the person and Jane, who also filed an application to be Teddy’s guardian, as his guardian of the estate.

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• North Carolina’s Expert Witness Discovery Rule – Changes and Clarifications

  This entry was contributed by Ann Anderson on September 4, 2015 at 5:00 am and is filed under Civil Practice, Civil Procedure-General.

  The General Assembly has amended the rule of procedure in civil cases for discovery of information about another party’s expert witness.  North Rule of Civil Procedure 26(b)(4) has largely been unchanged since 1975. With the amendments made by House Bill 376, S.L. 2015-153, the rule updates the methods of disclosing and deposing experts and implements some explicit work-product-type protections. The Rule now looks more like the corresponding provisions in Federal Rule of Civil Procedure 26 (after that Rule’s own significant round of changes in 2010). The changes to North Carolina Rule 26(b)(4) apply to actions commenced on or after October 1, 2015.  The rule now provides the following:

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