Category: Litigation Section (page 1 of 2)

Court of Appeals Allows Section 75-1.1 Claim in Context of Residential Real Estate Transaction

By Jeremy Falcone

Courts have generally excluded residential real estate transactions from North Carolina’s Unfair and Deceptive Trade Practice statute, section 75-1.1. A recent decision from the North Carolina Court of Appeals, called Capps v. McSwain, addressed this exemption. This post explores this decision—including the reasons behind the exemption.

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What Your Trial Court Administrator Wants You to Know, Part III: Eastern Region

By Molly Martinson and Bridget Warren

For our third and final installment of this series (you can read Part I and Part II here), we head to the coast and summarize what the TCA and TCC of New Hanover County want you to know about practicing in their county.

Rule No. 10: Know Your Local Rules (Third Time’s the Charm)

For the third time running (see Rule No. 1 and Rule No. 5), the New Hanover County TCA and TCC both stressed the importance of attorney familiarization with the local rules.  New Hanover County’s local rules can be found here and the local calendaring rules can be found here.

Rule No. 11: Look Carefully at the Applicable Calendar Prior to Submitting a Calendar Request

We’ve talked in prior installments about utilizing each county’s online resources via the N.C. Courts website, but the New Hanover County District Court TCC Lee Alexander noted attorneys often attempt to schedule hearings on the wrong date or in the wrong division (district court vs. superior court). Both the district court and superior court calendars for New Hanover County can be found here.

Rule No. 12:  Don’t Ask a Judge to Sign an Order on a Motion that Hasn’t Been Filed and Heard

One of the common mistakes New Hanover County TCA Tonya Gilley sees is attorneys submitting proposed orders to the TCA’s office that purport to rule on motions which were never filed or heard by the court. Remember that motions are not merely formalities—all motions, including motions to withdraw and motions for default judgment must be properly filed in accordance with the local rules and heard by a judge before he or she can sign an order addressing the motion.

Rule No. 13: Don’t Ask a Judge to Sign an Order Before it Has Been Signed/Reviewed by the Proper Parties

On the issue of orders, remember that you should send a proposed order to opposing counsel prior to sending it to the judge for his or her signature. That way, if any aspect of the proposed order is disputed, the dispute can be resolved in advance of the judge’s review. Along the same lines, when submitting consent motions to the TCA’s office, remember to attach the signatures of all parties or their attorneys.

Rule No. 14: Ask Questions . . . to a Point

Both the TCA and TCC of New Hanover County emphasized their willingness to field questions from attorneys related to local rules or procedures. However, remember that the TCAs cannot answer legal questions from the public or from attorneys.

Rule No. 15: Thank a TCA

OK, we admit, this is our rule not theirs. We are incredibly appreciative of our hard-working TCAs across the state. They make our lives easier as litigators, and we hope that following these tips will make theirs easier too. Next time you talk to a TCA, thank them for all that they do!

Revised Discovery Rules in NC: Testifying Expert Witnesses – Part II

By Isaac Thorp

This is the second part of a two-part series about recent amendments to Rule 26(b)(4) of the North Carolina Rules of Civil Procedure, which are applicable to actions filed on or after October 1, 2015. This post primarily concerns categories of information related to experts that are for the most part immune from discovery.

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Revised Expert Witness Discovery Rules in North Carolina: Discovery of Testifying Expert Witnesses

By Isaac Thorp


Rule 26(b)(4) of the North Carolina Rules of Civil Procedure governs the procedure for expert witness discovery. The rule was recently amended, and is applicable to actions filed on or after Oct. 1, 2015. The amendments govern the disclosure, discovery, and payment of expert witnesses. They also provide trial preparation protections for draft expert witness reports or disclosures, and communications between a party’s attorney and her expert witness.

This first part of a two-part series addresses the following amendments:

  • Rule 26(b)(4)a.3: Disclosure through interrogatory answers
  • Rule 26(b)(4)a.2: Option to disclose expert report
  • Rule 26(b)(4)b.1: Depositions of testifying experts

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What Your Trial Court Administrator Wants You to Know, Part II: Western Region

By Molly Martinson and Bridget Warren

In our first installment of this three-part series, we discussed advice given by the TCAs in Cumberland, Forsyth and Guilford counties.  Now, we turn to the Western part of the state and highlight what the TCAs of Buncombe and Mecklenburg counties want you to know.

Rule No. 5: Know Your Local Rules (Again)

Ok—we know this was Rule No. 1 in the last installation—but it bears repeating because it is the single-most noted mistake made by attorneys. Indeed, both Marc Shimberg, Trial Court Administrator for the 28th Judicial District (Buncombe County), and Meredith Davis, Caseflow Management Administrator for the 26th Judicial District (Mecklenburg County) stated that not reading the local rules is one of the most common mistakes they see attorneys make in their districts. They both stressed that attorneys’ failure to be familiar with the local rules causes a plethora of caseflow issues. For instance, Ms. Davis stated attorneys routinely do not submit their continuance requests in a timely fashion, do not include the necessary information in continuance motions, and do not ensure that motions are placed on a hearing calendar within three days of filing the motion. It is imperative that attorneys practicing in Buncombe County and Mecklenburg County take the time to read the local rules. Your TCA will thank you.

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None Of Your Business In Our Jurisdiction

By Madeleine Pfefferle

On Nov. 7, 2017, the North Carolina Court of Appeals delivered a split opinion in Atlantic Coast Properties, Inc. v. Saunders, holding that a corporation’s failure to plead its legal existence and capacity to sue lacked standing to maintain a legal action. 807 S.E.2d 182 (N.C. Ct. App. 2017). The case was before the court on appeal by petitioner Atlantic Coast Properties, Inc. (“ACP”) after Judge Milton F. Fitch, Jr. granted Respondents’ motion for summary judgment in Currituck County Superior Court.

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What Your Trial Court Administrator Wants You to Know, Part I: Triad and Sandhills

By Molly Martinson and Bridget Warren

Picture this: You’re about to file a Motion to Dismiss. You filed one last month, too. But was that in Guilford County . . . or Mecklenburg County? You can’t remember. When do you have to file a Notice of Hearing? How do you submit a calendar request?

Sound familiar? Attorneys practicing in North Carolina state courts often lament the disparities among various counties’ local rules and practices. Nevertheless, knowledge of each county’s requirements for civil practice is crucial to the effective representation of your clients.

In this three-part blog series, we asked Trial Court Administrators (“TCAs”) in several of the most populated counties in North Carolina to discuss attorneys’ common mistakes and frequently asked questions, and to give advice for attorneys practicing in their respective counties.

For our first installment, we highlight our discussions with TCAs in the Triad and Sandhills regions of North Carolina: Guilford, Forsyth, and Cumberland counties. We created the five rules below based on these discussions.

Rule No. 1: Know Your Local Rules and Rules of Civil Procedure

First and foremost, attorneys should familiarize themselves with the local rules of the county in which they are practicing. This might seem like a no-brainer, but as Craig Turner, the TCA for the 18th Judicial District (Guilford County), stated: “Most mistakes occur because attorneys are just not well-versed in submitting the necessary paperwork for their case with the court.” Moreover, Mr. Turner has found that attorneys are not familiar with civil procedure, in general, which creates even more mistakes. Overall, attorneys should thoroughly read the North Carolina Rules of Civil Proceduremediation rules, and the local rules of each county in which they are handling cases. If you only follow one rule—follow this one.

Rule No. 2: Utilize the County’s Online Resources  

Attorneys should take advantage of the online resources each county has to offer, specifically, forms and calendars. Multiple TCAs noted that they spend significant time and resources updating their judicial district’s content on the North Carolina Court System website. Reviewing the calendar online, which specifies dates for motions for the entire year, will eliminate a common question received by Mr. Turner: “When can my motion be put on the docket?” Further, once your motion is calendared, according to the TCAs, it is imperative that attorneys track their motions for each case to avoid missing deadlines, filing delinquent administrative responses, and submitting late filings to the Court.

Rule No. 3: When Rules No. 1 and No. 2 Fail, Contact the TCA or TCC

Communication is key. After reading the local rules and reviewing the online resources, if attorneys still have questions they should reach out directly to the TCA or Trial Court Coordinator (“TCC”) of that judicial district. As noted by Cecelia Gordon, the TCA for 21st Judicial District (Forsyth County), attorneys should “never assume,” rather they should call the office if they are unsure of something, such as what type of calendar request is required by that judicial district. Communication, of course, is a two-way street. Attorneys should always promptly respond to questions from court administrators. Too often, Mr. Turner relayed, attorneys fail to respond in a timely manner, which leads to “unnecessary delays and duplication of work.”

Rule No. 4: Actually File for Secured Leave

The process for attorneys to obtain secured leave is provided by Rule 26 of the General Rules of Practice for the Superior and District Courts. However, as Ellen Hancox, the TCA for the 12th Judicial District (Cumberland County), noted, many attorneys do not file designations of secured leave.

The secured leave procedure exists for a reason: to provide for “the heightened level of professionalism that an attorney is able to provide when the attorney enjoys periods of time that are free from the urgent demands of professional responsibility and to enhance the overall quality of the attorney’s personal and family life[.]” Sounds like a goal we can all get behind.

Failing to properly file for secured leave in each county in which the attorney has a pending matter can cause scheduling headaches for the TCAs. Err on the side of caution and file for secured leave whenever you know you will be unavailable to appear in court for personal reasons. Prior to filing, remember to check each county’s form bank and use the proper secured leave form.

Relatedly, if a scheduling conflict arises because of an attorney’s conflicting engagements in different courts, Ms. Hancox noted that attorneys must refer to Rule 3.1 of the General Rules of Practice to determine the priority of each matter. Once the matter’s priority is established in accordance with Rule 3.1, refer to our Rule # 3, above, and let the TCA know about the conflict.

Rule No. 5: Don’t Assume that the TCA has the Same Information as the Clerk’s Office

North Carolina state courts have not implemented an electronic filing system at the trial-level (yet). Therefore, as a general matter, both the county clerk’s office and the TCA or TCC (if the judicial district has one) are charged with collecting case documents and managing each case in accordance with their respective responsibilities. Ms. Hancox warned, however, that attorneys should not assume that the TCA’s office has all of the same file materials as the county clerk’s office. For example, in Cumberland County, Local Civil Calendaring Rule 1.9 provides that “all papers filed in civil [superior court] actions . . . shall include as the first page of the filing an original plus one copy of the appropriate cover sheet[.]” The reason for this rule, Ms. Hancox stated, is to provide both the clerk’s office and the TCA with at least a cursory description of every document filed and the identity of the filer. If a party neglects to file the requisite cover sheet and copy of the cover sheet (as many have in the past) then the TCA will not be aware of that filing—or, with respect to the filing of an Answer or Notice of Appearance, the TCA might not be aware of your involvement in the case at all.

Therefore, do not assume that everything you file with the clerk’s office has necessarily made its way into the TCA’s hands, and pay particular attention to rules requiring that two copies of certain documents be provided. In all likelihood, one of those documents is for the TCA.

Stay tuned for the next two installments of this series, where we discuss what your TCA wants you to know in the Eastern and Western regions of the state.


Documents Do Not ‘Speak for Themselves’: Defeat Your Opponent’s Meaningless Objections to Requests for Admission

By Isaac Thorp

You served the following request for admission and got this response:

Request: Admit that the second paragraph of the contract attached as Exhibit A states: “… (verbatim quote).”
Answer:  The document speaks for itself.

Is this an appropriate objection?

Numerous federal courts have held that asserting that a document “speaks for itself” is not a proper objection to a request to admit that a document contains quoted language. In Miller v. Holzmann, 240 F.R.D. 1, 66 Fed. R. Serv. 3d 977 (D.C. Cir. 2006), plaintiff served a request for admission that a document contained language quoted in the request. The defendant objected on the grounds that the document “speaks for itself.” The court held that the objection was improper:

“It is astonishing that the objection that a document speaks for itself, repeated every day in courtrooms across America, has no support whatsoever in the law of evidence. . . . The tautological ‘objection’ that the finder of fact can read the document for itself to see if the quote is accurate is not a legitimate objection but an evasion of the responsibility to either admit or deny a request for admission, unless a legitimate objection can be made or the responding party explains in detail why it can neither admit nor deny the request.” Id. at 4.

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Don’t Let Your Opponent Bury You Under a Mountain of Business Records in Lieu of Answering Interrogatories

By Isaac Thorp

You have served interrogatories about the defendant’s construction of a defective roadway. The defendant responds to several of them by stating, “[T]he information sought by this interrogatory may be ascertained by a review of the construction diaries and other records. These documents are available for review, inspection and copying.” You arrive at defense counsel’s office to inspect the documents, and you’re directed to a storage room that contains 200 unlabeled boxes. “Good luck!” says his secretary, as she closes the storage room door. Is this proper?

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Senate Bill 698 Proposes Two-Year Terms For All North Carolina State Judges and Justices

By Molly Martinson

On October 17, 2017, North Carolina State Senator Rabon filed a bill in the State Senate to amend the North Carolina Constitution to limit terms of office for all state judges and justices to two years.

Currently, Article IV of the North Carolina Constitution provides that District Court judges are elected to four-year terms (N.C. Const. art. IV, sec. 10), whereas Superior Court judges, Court of Appeals judges, and Supreme Court justices are elected to eight-year terms (N.C. Const. art. IV, sec. 16).  Senate Bill 698 would amend the North Carolina Constitution to limit all such terms to two years.  Senate Bill 698 further provides that all terms of office for judges and justices both elected and appointed prior to July 1, 2018 shall expire on December 31, 2018.  Finally, the bill proposes that this constitutional amendment be put to a vote during the 2018 statewide primary election.

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