Category: Litigation Section (page 1 of 2)

For Section 75-1.1, the Dividing Line Between Contract and Non-Contract Claims Can Be Fuzzy

By Stephen Feldman

North Carolina courts have, on several occasions, attempted to describe the dividing line between ordinary breach of contract claims and claims that allege “substantial aggravating circumstances” relating to a breach. The latter category of claims violate N.C. Gen. Stat. § 75-1.1.

This blog post unpacks a recent decision that sheds light on this dividing line. The case is Swift Beef Co. v. Alex Lee Inc., authored by U.S. District Judge Max Cogburn.

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N.C. Supreme Court Rules That Brokers May Testify on the Issue of Fair Market Value

By Allen N. Trask III

In a recent opinion, the North Carolina Supreme Court expanded the possibilities of allowable testimony about a property’s fair market value. In its decision in North Carolina Department of Transportation v. Mission Battleground Park, DST, 810 S.E.2d 217 (N.C. 2018), the court held that the trial court had improperly excluded the testimony of a commercial real estate broker regarding the fair market value of property condemned by the North Carolina Department of Transportation (“NCDOT”). This article briefly explores the case facts and the reasoning of the decision and also discusses how this ruling affects condemnation or other types of cases.

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Road Trip! Road Trip!

By Bob Edmunds

In recognition of the Supreme Court of North Carolina’s 200th birthday, Chief Justice Martin recently announced that the Court is going to put on a road show. North Carolinians living outside Raleigh soon will be able to watch the high court in action without having to travel far.

For as long as anyone now living can remember, the Supreme Court routinely has sat in Raleigh, but it was not always so. When established in 1819, the Supreme Court met in the state capitol. However, as North Carolina’s population grew, so did pressure to meet in a venue convenient to citizens in the western part of the State. In 1847, the General Assembly passed legislation requiring the Court to hold sessions in Burke County.

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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.

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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

Introduction

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.

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