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.

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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