The Conference Room--Answers to Questions on N.C. Law

Eviction

Landlords have a streamlined process in North Carolina to evict tenants who have breached their lease. This is called summary ejectment. After the tenant has breached the lease by failing to pay rent or otherwise, and after the tenant has failed to fix the problem pursuant to a grace period or period to cure, if any, in the lease, the landlord will provide a “notice to vacate,” either in writing or orally demanding that the tenant vacate the property. If the tenant leaves, it does not mean the landlord gives up any right he has to get back rent. Depending on the type of lease and the reason for eviction, the time of notice will vary. For the breach of a residential lease for failure to pay rent, 10 days’ notice is required.   

After the notice period has ended, the landlord may go to court and file for a Summary Ejectment, usually on a form from the clerk of court. The complaint states why the landlord wants the tenant to move out and when and where the court hearing will be held.

The complaint must be served on the tenant.  This is usually done by the sheriff or by certified mail, return receipt requested. Delivery may be in person or by tacking the papers on the tenant's door.  If delivery is by tacking the papers on the door, and if the tenant does not go to the hearing, the landlord cannot get a judgment against the tenant for rent owed. 

Unless there are other reasons from eviction than non-payment of rent, the tenant can stop the process by a “tender of rent” or paying the owed rent at or before the hearing.  

In the summary eviction process, as well as any other small claims court action, either party has a right to appeal. The landlord or tenant has 10 days after the magistrate judge’s decision to file an appeal or the judgment becomes permanent. For low income tenants, the filing fee for the appeal may be waived; however, there still may be a fee for the sheriff to deliver the notice of appeal to the landlord. The appeal will be heard in district court, which is harder to navigate by parties without an attorney than the small claims court. Even if an appeal is filed, the tenant is under an obligation to pay rent as it becomes due, however, it should be paid to the clerk of court rather than directly to the landlord.  

If the tenant appeals, about two months later, he will get a notice of the date of the district court (appeal) hearing. That hearing is similar to the small claims court hearing in that the judge will hear the facts of the case from both sides and make a decision. The district court judge can ignore nearly anything the magistrate court decided. After the district court hearing, the losing party has the opportunity to file another appeal with the North Carolina Court of Appeals. This step is seldom taken since the Court of Appeals will not consider the facts, only if the district court judge made an error of law.  

If the tenant does not file for an appeal, or the tenant appeals but fails to pay the rent as it becomes due to the clerk of court, then the tenant has 10 days after the magistrate judge’s ruling to move out. If the tenant has lost an appeal, he has 30 days to move out. If the tenant has not moved out before the applicable deadline, the landlord can get a writ of possession directing the sheriff to remove the tenant and padlock the property. The sheriff will give the tenant notice of the date and time when he intends to remove you from the property, usually 2-3 days after obtaining the writ.

After the eviction and the padlocking, the tenant has 10 days to contact the landlord and arrange to move any personal items that remain. The landlord only has to give the tenant one chance to get his or her belongings.  If the belongings are still there after the 10 day period, the landlord may dispose of them as he wishes.

 -Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

 

What a jury doesn't hear

An American judge talking to a lawyer. (Photo credit: Wikipedia)

After every trial, I try to talk with the individual jurors who heard my case. It helps me as a trial lawyer determine what strategy and tactics worked and what didn’t. I will also ask them what information they wanted but never got and what questions they had that never got answered. Sometimes they even tell me about the assumptions they made on issues even if no evidence was presented in trial. They almost always want to know what the attorneys and the judge were whispering about at the bench where they couldn’t hear.

It seems somewhat counterintuitive, especially in the age of instant, on-line information, but literally over two hundred years of statutes, rules and judge’s decisions have tried to limit the information presented to a jury for their decision in a trial. The main question is what the law has decided is relevant to a case. The North Carolina rules of evidence say that anything is relevant if it makes any fact of consequence more probable or less probable than without that fact. Simple right? Sometimes it is and a non-lawyer can easily see that. For example, where a car wreck happened on a sunny day without a cloud in the sky, it is probably not relevant that the defendant car’s windshield wiper blades were old. However, from the simple idea of relevance comes a host of fact-specific things that are relevant or not relevant for a trial that might not be apparent to a non-lawyer. For example, a non-lawyer might think that the fact that in our car wreck that the defendant driver had one or two prior car wrecks makes it more probable that the car wreck at issue in the trial was the defendant’s fault. Honestly, that non-lawyer might even be right (I certainly think prior acts of my kids are relevant when I am trying to figure out how the cookie jar got broken). However, the law has decided that in most cases, if a person did something before, it doesn’t mean they did it this time. Another example is insurance. If a juror knows that a particular injured party has insurance, they might be more likely to not make the at fault party pay as much. On the other hand, they might award more damages since they know an insurance company is paying for it and not out of the pocket of a sympathetic defendant. A lot of the conversations and arguments between attorneys and the judge and a lot of the objections at trial go to this underlying issue of relevance. Trials are very fact specific, so at almost every trial there is a small wrinkle in the law where the attorneys can argue whether a fact is relevant or not or if a fact can come in or not.  

It is important to only decide a case as a juror based on the evidence you hear. The judge and lawyers are not just making up what is important and what is not. They are relying on literally over two hundred years of fine-tuning the law and the jury system. If the judge makes a mistake, or some relevant information was left out for no sound reason, the case can be appealed and the Court of Appeals and Supreme Court can decide it was the wrong thing to do. That opinion will be written down and the next trial with a similar issue will have more guidance on the correct course of action.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

 

Ask a Lawyer Day

Last week I participated in the Ask a Lawyer Day program in Wilmington NC. This is similar to Justice4All program where local attorneys field legal questions for free from the general public. Oftentimes it involves explanations of legal issues or concepts, similar to what I do sometimes in this blog. Other times it is to try and get people to the proper agency or legal aid office that could help them. Some of the people I talked with included the following:

1.    A man who owned land that was claimed by another person. This person was coming on property and had even started tearing down some old barns on the property. The man showed me letters he had sent to the other person, and the deeds and maps that showed his ownership in the land. He had not received any information showing that that other person owned the land. Since the letter had been ignored, I told him that he would have to file a lawsuit for trespass to keep the other person from coming on the property and an action to clear title. He was allowed to file such a suit himself, but I recommended he hire a lawyer to do it.

2.    A lady whose grandson was being moved to a different high school because his parents had moved. He had some disciplinary problems and the ROTC program at his current school was helping. I gave her the information to contact the local school board and suggested that she enlist his therapist to help in her hardship claim.

3.    A man whose estranged brother owned farm equipment on his property. He was concerned because people were stealing and vandalizing the farm equipment. I told him that just because it was on his property, he did not have responsibility to take care of his brother’s equipment and to write him a letter and tell him so.

4.    Another man whose foot was badly burned when using a riding lawnmower. The man was wearing flip-flops but said that the manual did not give any warning about footware and his friend who also used the mower had the sole of his sneaker melt. We talked about negligence and contributory negligence and I recommended he consult with a personal injury attorney.

5.    A man whose friend in Texas had some child custody issues. I told him he first had to determine if any action had already been started in Texas. If it had, he would need to get an attorney there, even though the child was now in North Carolina. If there had not been an action, he would be able to file an action in North Carolina and would not have to move here to do so. I recommended he consult with a family law attorney.

6.   A lady who was concerned about hunters on a neighboring property. Legally, in that area of the county, there were no laws preventing hunting in that area, even though it was close to a neighborhood where many children lived. I referred her to her county commissioners to see what could be done.

I spent about 30 minutes with each individual and felt that I was able to answer everybody’s questions. Another ask a lawyer event is coming up on March 2, 2015 throughout North Carolina.   If you have a question for a lawyer, please feel free to call.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

What If...

I love alternative history stories. Things like “What if the Soviet Union had won the Cold War ?” or “What if JFK had not been assassinated?” I find fascinating and oftentimes help me better understand actual history. I even like alternative takes on imaginary history like “What If Spider-Man had been bitten by a radioactive ant?” or “What if Superman crash landed in Siberia instead of Kansas?” I think a lot of people think about “What if” everyday. “What if I called that potential customer back right away?” or “What if I hadn’t agreed to go on a blind date?” When people are faced with a traumatic event, their “What if” imagination goes into overdrive. “What if that nurse hadn’t noticed Mom was allergic to penicillin?” or “What if I had eaten that piece of glass in my food?” or “What if I hadn’t slammed on brakes when that guy ran the red light?” Those types of events seem so wrong and so full of danger, that they think there has to be a way to sue them.

Sometimes, those near-miss events are crimes and the person at fault can be fined or imprisoned. However, that doesn’t allow you to sue those people or obtain any money or any other relief for having that near-miss. The basic rule of damages for lawsuits is you can only get your “actual damages.” These damages can be “hard” damages, like medical bills, or lost wages; or “soft” damages like physical pain. But both types of damages actually happened to the injured person. You can’t get damages for “What if.” You can’t get damages for what might have happened, only what actually did happen. No matter how bad the possible outcome was you can’t recover. “I could have died!” is still only in the realm of “What if” and therefore not recoverable.

The flip side of this is something called the “thin-skull rule.” A person can recover all of their actual damages. “If he drove a bigger car, he wouldn’t have been hurt” or “If the patient didn’t already have a heart condition, the wrong medicine wouldn’t have hurt him” are not defenses for the person at fault. If you have or think you have a civil lawsuit, consult with an attorney but keep in mind that the best he can recover for you is what actually happened, not “What if.”

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Medical Records

Under North Carolina law, a person’s medical records are property of the healthcare provider who created them. However, a patient has rights to get copies and/or inspect the records of his medical care. The patient may need them to provide to a different doctor or healthcare provider to help with additional medical care. Legal actions such as medical malpractice or personal injury also may require an inspection of the medical records to determine damages, pre-existing conditions, or causes of injury. Medical malpractice actions in North Carolina require an expert review all the medical records available before even starting a lawsuit. The federal Health Information Portability and Accountability Act (HIPAA) gives patients the right to obtain a copy of their medical records from any medical provider, with a few exceptions. According to HIPAA, you may request

• Your own medical records;
• Someone else's records if you are a designated representative with power of attorney or or otherwise written permission to act as their representative in accessing records;
• Someone else's records if you are their legal guardian;
• Your children's medical records, unless the child has consented to medical care and parental consent is not required under NC law, the child gets medical care at the direction of a court, or the parent agrees that the minor and the medical provider have a confidential relationship;
• Records of deceased persons in certain circumstances. If you are the personal representative of an estate -- either designated by a will or appointed by a court to settle a deceased person's affairs -- HIPAA gives you access to the deceased's medical records. In addition, if you are related to a deceased person and certain information in that person's medical file relates to your own health, HIPAA lets you access that information.

HIPAA gives patients the right to get copies of all of their medical records except for psychotherapy notes, information the provider is gathering and compiling for lawsuits, and medical information that the provider believes could reasonably endanger your life, your physical safety, or the safety of another person. If the provider denies your request for medical records, it should provide you with a denial letter giving the reason. In such cases, you may be able to appeal the denial. In addition, the North Carolina Medical Board provides that a physician has a duty to release a copy of the patient’s medical record to the patient or a representative of the patient even for purposes of personal injury or medical malpractice investigations and lawsuits. 

HIPAA requires medical providers to provide copies of medical records within 30–60 days of your request. The North Carolina Medical Board requires the records to be provided in a “timely manner.”

In personal injury and social security cases, the health care provider is limited by statute as to the amount they can charge for copies. Currently, the maximum fee for each request shall be seventy-five cents (75¢) per page for the first 25 pages, fifty cents (50¢) per page for pages 26 through 100, and twenty-five cents (25¢) for each page in excess of 100 pages, provided that the health care provider may impose a minimum fee of up to ten dollars ($10.00), inclusive of copying costs. However, if they do charge for medical records, they waive any right they have for a lien on any proceeds from any lawsuit. For records requests for other reasons, the healthcare provider can charge a “reasonable cost-based fee.”

When it comes to identifying which medical records you want, you can be general or specific. Sometimes, patients want their entire medical file. But if you’ve seen the doctor over a long period of time and don't want to pay for copies of every immunization and preventative visit for the last 20 years, it might make sense to specify which part of the record you want. Some hospital will provide a “digest” which includes the most important parts of a record including operative notes, admission and discharge reports, lab reports and radiology reports. Even if you request a full record, you usually will not get copies of actual X-rays or CT scans. You have to request those specifically. You can also narrow your request by specifying records that cover treatment over a certain time period. Billing information is usually kept separate and is not considered part of the medical record, so if you want your bills, you need to specifically request that.

Once you get your medical records, you may notice they include reports from third-party providers, like specialists or radiologists. The documents from the third-party provider are what your doctor received, but they may not constitute all the medical records that the third-party provider's office has on you. If you need more information from the third-party provider, make a separate medical record request to that provider.

 -Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

 

Aggravation

Only seldom do I have a personal injury case where there was not a doctor or chiropractic visit sometime in the months or years prior to the event sparking the lawsuit. An injured plaintiff can only recover for damages that were actually caused by the defendant’s negligence. If the defendant can prove that a plaintiff’s injuries pre-existed his negligence, it lowers the amount of damages that he has to pay if the jury finds him at fault. In extreme cases, the jury can find the defendant was negligent, but caused nominal damages such as $1. The best argument by a plaintiff is that the new injury is not connected in any way with a prior injury or condition. Even if the injury is in the same location or the same condition, the law allows a plaintiff to recover for the aggravation or the exacerbation of the pre-existing injury. So if you had a small hernia, one that did not require surgery, just monitoring by a doctor, but after the defendant hit you with his car, the hernia gets larger and requires surgery, the jury can award an amount of damages based on how much it got worse.

I recently had this issue in a trial, and the typical, pattern jury instructions from North Carolina did not seem to address this issue. I did my research and drafted some additions to the appropriate pattern instructions. A copy of those is set forth below.

Proximate Cause - Definition; Multiple Causes

The plaintiff not only has the burden of proving negligence, but also that such negligence was a proximate cause  of the [injury] [damage].

Proximate cause is a cause which in a natural and continuous sequence produces a person's [injury] [damage], and is a cause which a reasonable and prudent person could have foreseen would probably produce such [injury] [damage] or some similar injurious result.

An injured person is entitled to recover all damages proximately caused by the defendant's negligence. When his injuries are aggravated or activated by a pre-existing physical or mental condition, defendant is liable to the extent that his wrongful act proximately and naturally aggravated or activated plaintiff's condition. Potts v. Howser, 274 N.C. 49, 54, 161 S.E.2d 737, 742 (1968).

There may be more than one proximate cause of [an injury] [damage]. Therefore, the plaintiff need not prove that the defendant's negligence was the sole proximate cause of the [injury] [damage]. The plaintiff must prove, by the greater weight of the evidence, only that the defendant's negligence was a proximate cause.

Proximate Cause - Peculiar Susceptibility

In deciding whether the [injury to the plaintiff] [death of the decedent] was a reasonably foreseeable consequence of the defendant's negligence, you must determine whether such negligent conduct, under the same or similar circumstances, could reasonably have been expected to [injure] [cause the death of] a person of ordinary [physical] [mental] condition. If so, the harmful consequences resulting from the defendant's negligence such as the aggravation of a pre-existing condition (Smith v. Buckhram, 372 S.E.2d 90, 94 (1988;  Potts v. Howser, 274 N.C. 49, 54, 161 S.E.2d 737, 742 (1968) would be reasonably foreseeable and, therefore, would be a proximate cause of the [plaintiff's injury] [decedent's death]. If not, the harmful consequences resulting from the defendant's negligence would not be reasonably foreseeable and, therefore, would not be a proximate cause of the [plaintiff's injury] [decedent's death].

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

A Jury Thank you Letter

I frequently see on social media where someone has been called for jury duty. The post is frequently followed by half-joking advice on how to get of it by telling the lawyers you believe in the death penalty for littering or will vote the way the space aliens tell you. Far from my usual practice of snarky comments, I will post a simple message stating “thank you for your service.” Since I am a proud member of Generation X and we practically invented irony, I wonder if some people think I am being sincere. I am. There are large number of campaigns to remind people of their right and duty to vote in elections, and not any that focus on the right and duty of a jury. In a national, state or even local election, your vote is one of millions, thousands or hundreds. On a jury, it is one vote out of 12. Since most juries require a unanimous result, unlike an election, your service is of even more importance. In effect, you can, with your single vote, render an effective veto over any verdict. In addition, a juror has a pretty good idea of what the effect is of their decision, whether to award an amount of money or the conviction of a serious crime, the jury will have personally heard the arguments and pleas of all the people involved.

Thankfully, almost all jurors I have interviewed have taken the issues seriously, listened with healthy skepticism all of the evidence, and struggle with a fair and just result. In fact, I have more problems with potential jurors who try to say what they think I want in jury selection so they can get on the jury, than jurors who make up excuses to get off.

“Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up.” –Atticus Finch

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Crash Reports

In North Carolina, the first investigation of any motor vehicle crash is by the police. In order to assist their investigation, they use a special form published by the North Carolina Division of Motor Vehicles—“Crash Report Form DMV-349.” The form, also known as the crash report, accident report, or police report, is an essential piece of information for either party attempting to prove who was at fault. According to North Carolina law, this report should be completed within 24 hours of the crash and submitted to the DMV. You can fill out a Request for Motor Vehicle Information with the DMV for a copy of the crash report. copy of the crash report. Some police forces have the information available online, such as the Wilmington North Carolina Police Department. While the main information is easily understood regarding the narrative description of the crash; drivers, passengers, and witnesses contact and insurance information; and traffic violations that were cited; there are a number of other details. In order to decipher the codes on the report, use this key (Download DMV349). You can also use the DMV-349 Instruction Manual to help you interpret the crash report. An experienced personal injury attorney also should have a great deal of experience in interpreting the report.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

 

Legalese

I believe that at some time in the past, lawyers must have charged on a per word basis. It is the only explanation I have as to why attorneys use lengthy, old-fashioned and sometimes confusing jargon when talking and writing. If you can’t understand your lawyer, chances are a jury won’t either. Just because he sounds impressive, doesn’t mean he actually knows what he is talking about. Get him to explain in plain English what he is talking about and explain again if you didn’t understand.

What is even worse when a person who is not an attorney, even a very intelligent one, will try and sprinkle in words they have heard because they sound “legal.” Not only is it not needed, but if you don’t understand the words you are using, you may be saying something other than what you intend. The following list may help you decipher what an attorney might say and for attorneys to use more understandable language to get across information and assist their clients.

 

LEGALESE	PLAIN ENGLISH ALTERNATIVES
adequate number of	enough; sufficient
aforesaid	previous
all of the parties	all parties
and/or	… or… or both
anticipate	expect
as to whether (or not)	whether
at the time	when
by means of	by; through
contained in	in
contiguous to	next to; adjacent to
deems	considers
does not operate to	does not
during such time as	while
for the duration of	during
for the purpose of ___ing; with the object of ____ing	to ____
for the reason that	because
hereby; hereofhereunder; herein	by/of this ___; under this ___; in this ___
heretofore	previously
in case; in the event that	if
in lieu of	instead of
in many cases	many of; often
in order to	to
in the last analysis	finally
is (un)able to	can(not)
it is directed; it is the duty	must; shall
it is incumbent on X to	X must; X shall
literal(ly)	actual(ly); exact(ly)
loan (verb)	lend
monies	money
necessitate	require
necessity of	need to
occasion (as a verb)	cause
of a technical nature	technical
on the part of	by
possess	have; own
prior to	before
render (i.e., to give)	give
render (i.e., to cause to be)	make
said	the, that
secondly	second
subsequent to	after
such	the, that
suffer	allow
take into consideration	consider
thereby; thereofthereunder; therein	by that ___; of that ___under that ___; in that ____
to the effect that	that
transpire	happen
under the provisions of; pursuant to	under; in accordance with
until such time as	until
utilize	use, make use of
with respect to	about

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

 

Free Advice

I will occasionally get questions from friends, acquaintances, at a dial a lawyer day, or online at www.avvo.com, who want to know what they should settle for in a small to medium car wreck or personal injury. These casual, cocktail party questions are difficult. Sometimes these folks have already retained an attorney and are looking for a second opinion and sometimes they just want me to give them a number that they are entitled to. My problem is, it is often impossible to even give an educated estimate without knowing details of the case. Non-lawyers, who hopefully will only have one or two of these claims in their life, don’t understand the details that can greatly change the value of a case. Sometimes I don’t think they understand that it’s not that I’m unwilling to give an opinion, I honestly can’t give one based on the broad outline of a case. If they have an attorney, I know there is no way I have more knowledge to make an informed decision than they do.

That is the reason I, as well and numerous other attorneys, offer free initial consultations. From those, I can ask the right questions to get the details I need to at least give an initial impression of the strengths and weaknesses of the case. I’ve represented blue-collar, white-collar, tradespersons and professionals, and as smart or educated as they are, they don’t know what details are important for a case. It’s the job of the lawyer to get that information.

Also remember that even where the fault of the other party is clear, the amount is an estimate of what a jury would do. Every lawyer has been surprised by jury verdicts, and no lawyer should tell you any amount is certain. Every trial is a risk, and every trial costs money and time to reach a resolution. My advice therefore is talk to an attorney and get the best information you can on the risks and benefits of going to trial or settling the case for a certain amount. If you don’t get a good vibe from that attorney, find one you feel you can trust.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Trade Secrets

The law in North Carolina tends to support the ability of people to work for who they want, and when they want. In most cases, with at-will employment, an employee can leave a job whenever they want to work for another company who may provide them more pay or benefits. On the other hand, the law recognizes that businesses have legitimate interests that could limit the rights of former employees. One way a business can narrowly protect its interest is through the non-compete contract as I’ve written about before. Another way the law protects a corporation’s business is provide a fiduciary duty that its owners and members owe to the corporation. Still another way when a non-compete clause and fiduciary duty don’t protect a business is the trade secrets statute.

Chapter 66, Article 24 of the North Carolina statutes is the Trade Secrets Protection Act. This law allows a business to sue in civil courts for the misappropriation of a trade secret for actual monetary damages and a court order returning or stopping the use of the trade secrets. Depending on how egregious the conduct, punitive (punishment) damages and attorney fees are also available. To “misappropriate” a trade secret simply means to take it or communicate it without being authorized to do so. If the trade secret was arrived at by independent development or reverse engineering, there is no misappropriation. Proving that something is a trade secret is a little bit trickier. Under the statute, a trade secret is any business or technical information that derives independent value from not being generally known or easily created. The statute includes as possible types of trade secrets formulas, patterns, programs, devices, compilations of information, methods, techniques, and processes. To illustrate, a list of customer names and addresses is not a trade secret since such a list can usually be readily created. However, a customer list that includes specific pricing could very well constitute a trade secret. In addition to providing value from its being not generally known, a “trade secret” must be the subject of some protection from the company to maintain it as a secret. It is logical that if you do not care enough about certain information, that you take no steps to keep it secret, it probably isn’t a trade secret.

It’s a good idea to include in any employment contract some specific definitions of what you consider your business’s trade secrets, to make any possible litigation down the road be as streamlined and as inexpensive as possible.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Career Day

A few days ago, I spoke at a local middle school for a careers class. Thanks to some links from the North Carolina Bar Association, I was able to download and print out for the students a mini-mock trial for them to do in class. I had 4 witnesses, 3 lawyers for the plaintiff and 3 lawyers for the defendant. The “case” involved an alleged bullying incident. The Plaintiff alleged that the Defendant had always bullied her and on this occasion, pushed her down, causing her injury and a broken Ipod. The Defendant claimed she never pushed her and saw the Plaintiff, who had a history of “clumsy” behavior, run into an open locker.

For the most part, the students were reviewing their statements and formulating their questions and arguments on the fly, but there was at least one line of pretty good questioning that I missed on my review of the facts. It was interesting how they made some of the same mistakes that even experienced attorneys fall into. One thing several did was jump right to the facts, without even asking the witness their name. I’ve never done that, but sometimes you do tend to forget that the jury is hearing all the evidence for the first time. An attorney has to be diligent in making sure the jury is educated on each part of the case. Another thing was the plaintiff was talking to her lawyers. I had to remind her that they were not trying to convince her attorney, or me, or the other attorney, but the rest of the class, the jury. Sometimes even in the middle of trial, I have to remind my client it doesn’t matter what they think is fair, it’s what the jury thinks is fair. Finally, while they were fairly focused when they were asking or answering questions, they would drift off or whisper to each other when it wasn’t their “turn.” I had to remind them, as I remind my clients and keep in mind myself, that even when they are not active, the jury and judge is still watching them. They really paid attention when I told them that a judge could put them in jail for contempt of court for talking out of turn in his courtroom. Several decided then and there to be judges.

The kids had fun and hopefully learned a little bit about what it means to be a trial lawyer.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Suing the School

Our kids spend thousands of hours in the public schools of North Carolina. Not only are they on school grounds for classroom work, they participate in a vast amount of after school activities such as cheerleading, baseball, football and other sports. Just like a store or a private residence, negligence can occur from the actions or inactions of staff, teachers, coaches, or administration at a public school. The claims against a school or its employees would be the same against any other landowner or any other person. Depending on the facts, this could be a claim that the teacher or coach negligently acted or failed to act and caused an injury. It could also mean that there was a hidden or concealed condition that the school knew about and the injured person did not, and the school failed to correct or warn and caused injury. The school would have the same defenses that a private person or landowner would have, primarily any contributory negligence on the part of the injured person, which would bar his recovery. This defense is mitigated somewhat as a child 7 and under cannot be found to be contributorily negligent and a child between 7 and 14 will be compared to a reasonable 7-14 year old, rather than a reasonable adult.

The main defense a public school will have that a private individual or landowner will not have, is the defense of sovereign immunity. The general rule in North Carolina is that you cannot sue the State or its lesser government entities such as towns and school boards. Therefore, under the general rule, even if you have negligence, you cannot sue a public school or school board for your injuries. However, there are some exceptions. First, the activity must be a traditional government activity. Any classroom activity is a traditional government activity and would be protected by sovereign immunity. The courts have also found school basketball games and after-school daycare are also protected under sovereign immunity. Only where the activity is not a traditional activity is sovereign immunity not a defense, as when a city runs a concert arena or rents out low-income housing.  

The second exception occurs when North Carolina allows itself or its lesser governmental entities to be sued. Suits against the state or its agencies can proceed before the Industrial Commission rather than the state courts. School bus accidents can also proceed in this manner. Also, the state has provided by statute that if a governmental entity entitled to sovereign immunity purchases liability insurance, it has waived any sovereign immunity right up to the amount of that insurance. Historically, this has been the route to defeat sovereign immunity arguments against schools. However, in recent years several counties in North Carolina, including my home county New Hanover, have not purchased insurance but rather participate in the North Carolina School Board Trust. While it appears that the trust would have the same function as true liability insurance, the North Carolina Supreme Court has determined that a school board that participates in the Trust does not waive sovereign immunity.

Even where sovereign immunity exists, some counties will allow for a small amount of recovery for medical bills of the injured student that are not paid by the student’s health insurance. In New Hanover County, this amount is $2500.

Finally, even where the school and school board is protected by sovereign immunity, that protection does not extend to the individual teachers, coaches or staff that were negligent. While an individual teacher likely would not have personal assets to pay for a serious injury to a student, the teacher may have a personal policy of insurance they have privately purchased or obtained through membership with a teacher union or organization. Also, beginning in 2012, the state has paid for an “excess educator’s professional liability policy” for personal liability for teachers in their professional capacity (probably to remove the impetus for the teachers to join a union). Although the policy says “excess,” if the school board has paid nothing voluntarily, that excess insurance should be primary and pay from the first dollar spent, or at least after the school board has paid the $2500.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

 

 

Indemnity, Exculpatory and Hold Harmless

Cropped screenshot of title from the trailer for the film Double Indemnity (Photo credit: Wikipedia)

Has this ever happened to you? You are getting ready to race go-karts, rent a truck, scuba dive, or lease a storage unit and the owner hands you a document to sign. Maybe you read over it, maybe you just skim the front page for what you are getting and how much you are paying. If you pay a little more attention, maybe you notice it says you are responsible for any property damage or personal injury and you “hold harmless” the owner. Most likely, you have not truly considered what the possible consequences are of your signature.

Parts of a contract or agreement that take any responsibility from the owner to you are known in the law as indemnity clauses. If you wreck the owner’s go-kart, then you’ll have to pay for it. If you ram your go-kart and hurt somebody else on the track, you and not the owner of the go-karts will pay for it. Most people would agree with that and think it fair, but frequently those clauses try to go far beyond that. For example, I have represented a client who was renting an item from its owner. The owner did not perform inspections on the item as he was supposed to and the item was defective. Not knowing it was defective, my client was severely injured (paralyzed) when it collapsed on him. My client had signed a contract and within that contract was an indemnity clause. However, not only did my client agree that he would be responsible for damage to property or to his own injuries, he did so even if it was the fault of the owner.

Most people would not agree with that if they thought about it. The owner can cause injury to you even if he was at fault, even if he did it intentionally, and you, who had zero fault would have to pay for your own injuries. This far reaching indemnity clause (also called an exculpatory clause) is allowed in North Carolina, but the courts, recognizing that this is an unnatural result, limit these provisions as best they can. In order to be effective, the contract language must be clear and explicit that they are protecting the owner from his own negligent or intentional acts. The courts “strictly construe” the language. Nevertheless, if it is in the contract, the court must uphold it.

There are a few exceptions. An indemnity clause protecting against a party’s own negligence is prohibited by statute for construction contracts. Also, if the activity is extensively regulated to protect the general public from danger, this type of indemnity clause is prohibited. The courts have found this exception in contracts for health care, motorcycle safety training, and cosmetology. Finally, an exception has been found when the parties have unequal bargaining power. This exception usually only applies where the person was not given the opportunity to read the clause. Note that under North Carolina law, if you sign something, legally you are representing that you did read and understand what you signed.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Preventative Medicine

Once I had to explain to one of my kids why they had to brush their teeth every night. I told them I knew it was a hassle and took up ten minutes that they could use to play Angry Birds, but it was important because they could get cavities and we’d have to go to the dentist for a filling. They would rather use that ten minutes than to use an afternoon getting fillings and I would rather pay $.85 for a toothbrush than a few hundred dollars for fillings. This is preventative medicine and most people get the concept at least for their health care. However, those same people ignore preventative medicine strategies in other parts of their life.

Typically, in cases about contracts or business, lawyers charge by the hour. I have the same hourly rate if I am reviewing a contract, drafting a contract, or representing somebody in a dispute over a contract. However, the amount of hours I spend on litigating a contract is far more than what I would have spent in an initial review of a contract. In just about every suit on a contract or business dispute I’ve had, I can see in the document where I could have simply added a small paragraph or changed a word in the agreement that would have gone a long way to quickly resolve or even prevent the issue I was litigating. Most of these contracts and agreements were not drafted or reviewed by attorneys. Often what the person thinks the contract or agreement says is not actually in the contract, or at least is not clear. If you are signing an agreement, have an attorney review it. They will have clauses and requirements that you may not have considered. They may find that the language in the contract and what you intend are different.

If you do have a jargon-filled contract, they can explain to you what it means so you know what you are agreeing to, and change it if needed. If you want to terminate a contract or business agreement take the document to an attorney before you do so. I have recently handled a case where a business owner didn’t like the way his partner was running the business and thought that he could just give up his ownership and walk away. However, there were loans from the bank that he had guaranteed. As it stands, he has to pay money for loans to a business he no longer owns or works for. If he had consulted with an attorney who could have explained the risks, he may have been able to get out of the business cleanly.

It’s always easier to fix problems before they become problems. One attorney I know had a client who was a partner in a new business. The attorney kept trying to get him to get his partner to sign an operating agreement so that the amount of ownership interest for each was clear. The client kept putting it off because every thing was going well and he didn't want to rock the boat. When the time came to sell the business, the partner had conveniently forgotten any oral agreement he had on the split of the proceeds of the sale. The client eventually won, but it cost him about ten times as much in legal fees to get the same result.

Always remember to use a little bit of preventative medicine in your business arrangements.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Bursts

I had a meeting the other day with a client who was concerned about the status of his lawsuit. We represent him for the death of his father due to medical malpractice. Not surprisingly, he is constantly thinking about his father and his lawsuit, pouring over medical records, doing his own medical research and analyzing our expert’s reports and opinions. When a few weeks go by and he hasn’t heard from our office, he gets anxious and wants to know that we are doing all we can. When we had our meeting, I did a better job of explaining how the lawsuit works and the procedure that has to be followed. I explained that over the life of a lawsuit, there will be bursts of activity followed by weeks and even months of little or no action. The first burst of activity happens when the client first comes in. We get medical records, interview the client and any important witnesses, and get preliminary opinions. After that, there will be down time as we wait for all the medical providers to copy and provide records. Seldom do I get all the medical records on the first request, so there will be additional downtime. Once those records are received, they go to an expert for his review. In a medical malpractice action in North Carolina, medical experts are required to file a complaint and those experts have to be actively treating patients. As a result, there will be more downtime before the doctor can get to a review of the records. Once all the information is together and the opinions are finalized, there will be another burst of activity as the complaint is drafted, reviewed by the client and the experts and then filed. The ball is then in the defendant’s court. After they are served by mail or sheriff they have 60 days to respond with their answer. (Technically it is 30 days with a perfunctory extension of time for another 30 days). A month or two after that there will be another burst of activity around the written discovery, particularly as the client has to help provide all the answers. Depositions of experts and defendants will then take place and it often takes some time to get a date that is convenient for all the attorneys and experts. After all the discovery is completed, the lawyers and parties get their calendars out again to find a date to conduct the court-ordered mediation. This will be the final burst before the actual trial.        

Your attorney should notify you about the progress of a trial, and if you have not heard from him in 30-60 days, you should not be hesitant about contacting him about a status update, but keep in mind there are large stretches of time where there is nothing that is being done because nothing can be done.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Explaining a Fee Agreement

Any time you hire an attorney, they should provide you with a fee agreement to sign. The fee agreement provides both you and the attorney with some certainty as to what the attorney has agreed to do for you and what you are supposed to provide the attorney for his services. It is both good practice and an ethical requirement for the attorney to get this in writing. Attached is a copy of the fee agreement I use in my office. Download Fee Contract (Hourly) Although it doesn’t fit for every client and situation, it generally has the same language and intent for business clients, personal injury clients, family law clients and others.

The introductory paragraph makes it clear who the firm is and who the client is. While this may seem obvious, and frequently is, it is very important to establish just who the client is. A lawyer has different and stronger ethical obligations to a client than a non-client. Note that a client is not necessarily the one paying the attorney fees. If the client is a child, the guardian will sign for the client, but the duties still run to the child.

Paragraph 1 of my fee agreement also makes it clear that if a corporation is the client, that the person signing is authorized to sign. Frequently with small companies, the individual signing, as well as his company, has issues. That person will need to sign twice, once for himself and once for the company for the attorney to represent both. (This is assuming there is no conflict of interest in representing both).

Paragraph 2 makes it clear what the client is hiring me for. I don’t want to do work for a client for something they don’t want or need me to do, and neither do I want the client to think I am working on an issue when I am not. The latter is especially dangerous as a statute of limitations could expire and the client could find a valid claim prevented by the passage of time.

Paragraph 3 sets forth the client’s duties. If I can’t reach a client with important decisions regarding their case, I’ll have to withdraw. If a client is not truthful with me, I can’t give good advice on their case, and if it causes an ethical conflict, I’ll have to withdraw.

Paragraph 4 is the retainer for an hourly contract. Essentially this is a refundable retainer that is based on a minimum amount to make a good start on a civil lawsuit. I will then send out monthly bills as set forth in Paragraph 5 and show the money moving from the client’s trust account, to the firm’s operating account. When I am no longer representing the client, for any reason, any funds remaining in the trust account of the retainer are refunded.

Paragraph 5 is the rates for an hourly contract for attorneys, associates, and staff. Usually in my firm, one attorney and one paralegal work on a case, but occasionally other attorneys and staff will contribute. One of the questions every client should ask a potential attorney is who will be working on the case. In some firms, while a partner may sign up the client, a junior associate will do all the work. The staff work that is billed is usually confined to paralegal work as opposed to general office work such as copying, cover letters, and filing.

In some cases, I will agree to represent the client on a contingency fee basis. Rather than an hourly rate for the fees, I will charge a percentage of the total recovery. For some cases in our firm, usually in the family law realm where the legal service is very specific, for a small amount of time, and we have a very good idea regarding the amount of work that needs to be done, we can charge a flat fee. 

Paragraph 6 defines the costs. Note that costs are in addition to the hourly rate or the percentage amount obtained by contingency. They are simply pass-through charges that are specific to the file. The biggest cost is usually when expert witnesses are hired. Those large costs are discussed with the client before they are incurred.

Paragraph 7 gives my firm the duty to provide written monthly statements in hourly cases, and provides for interest for past due amounts.

Paragraph 8 is the discharge. Essentially the client can terminate the contract for any reason or no reason. My firm can only withdraw with good cause. Usually when I am forced to withdraw it is for a lack of cooperation or a lack of payment. Although I have to file a motion and have a hearing before a judge before being allowed to withdraw, this process is not billed to the client. After withdrawal, the former client would owe any past balances for any work my firm actually did on the case.

Paragraph 9 makes it clear that I cannot guaranty any result. In fact, I am ethically prohibited from making any such guarantee.

Paragraph 10 is for situations where some work has been done, usually where time is of the essence, before a contract has actually been signed.

Paragraph 11 is basic contract language that preserves most of the contract even if for some reason a particular portion can’t be enforced.

Paragraph 12 is what is known as a merger clause. It makes it clear that the fee agreement is what governs the arrangement, not any prior agreements, statements, promises etc. If you are expecting something different or additional than what is in the agreement, be sure it gets included.

Finally, the attorney who will be in charge of your case signs and the clients sign. When there are multiple clients, the all need to sign. They are usually billed jointly, but each is responsible for the entire amount of the bill.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Update: Changes in Small Claims Court

Starting on August 1, 2013, the amount you can sue for in small claims court doubles from $5000 to $10,000. Other than that, the basic rules remain the same. 

End of Life Decisions

Advance directives can grant solace to you and your loved ones.  Medical technology has advanced such that doctors can keep the body functioning longer than the brain.  But some of us may not want our bodies to be sustained longer than we are able to think consciously and communicate meaningfully with others.  North Carolina, under N.C.G.S. § 90-320, recognizes a right to direct medical care at the end of one’s life.  In case you are too sick to make these decisions on your own, North Carolina provides for advance directives to give you some control over end-of-life medical decisions (i.e., whether and when to withdraw or withhold life-prolonging treatment such as ventilators or artificial nutrition and hydration). 

There are three situations in which your doctors may conclude that you unable to make your own medical decisions regarding your end-of-life care:  (1) your condition is incurable or irreversible and the expectation of death is imminent (typically within six to twelve months); (2) you become unconscious and to a high degree of medical certainty will not become conscious again; or (3) you suffer from advanced dementia or another condition that significantly impairs cognitive functioning, which is irreversible to a high degree of medical certainty.  In these situations, decisions about your end-of-life care will be governed by advance directives, if you have them, or by the N.C. surrogacy laws, if you do not. 

Advance directives come in two flavors:  the living will and the health care power of attorney.  A living will, promulgated by N.C.G.S. § 90-321, allows you to document your wishes about your end-of-life care.  A health care power of attorney (sample), on the other hand, grants another person of your choice the authority to make any and all medical decisions on your behalf.  While there is some overlap, these two advance directives are meant to be used concurrently. 

In the absence of advance directives, N.C. surrogacy laws govern end-of-life.  N.C.G.S. § 90-322 provides that the following people, in this  respective order, are granted the authority to make these decisions:  (1) a legally appointed guardian, (2) a health care agent, (3) an attorney in fact, (4) a spouse, (5) a majority of your reasonably available parents and adult children, (6) a majority of your reasonably available adult siblings, and finally, (7) an adult friend.  If none are available, your doctor alone may make the decision.  But remember that if you do not fall into one of the three categories of incompetence listed above, regardless of whether you have executed advance directives, you will make your own medical decisions.

Advance directives give you some control in deciding the course of your end-of-life care, grant whomever you choose the authority to make medical decisions on your behalf, and alleviate stress on your loved ones by documenting your wishes about end-of-life care.  Without advance directives, these tremendously difficult decisions will be made by your loved ones in the order delineated above—whether or not you’d prefer that order.  If you have strong feelings about your end-of-life care, who you want to make medical decisions on your behalf, or if you want to relieve some burden on your loved ones, consider speaking with your doctor and an attorney about executing advance directives. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

--Robert C. Ennis is a second-year law student at the University of North Carolina School of Law and is a summer associate with Hodges & Coxe PC.

Timber Trespass--Time to Sue

Lately I have had a few calls about the wrongful cutting of timber, so I thought I would update on the state of the law in North Carolina when your timber is illegally harvested. Basically, as I have written before, if a person cuts the wood off your property, intentionally or not, they are liable for double the net value of the timber. If you can prove it was done intentionally, or can show that it is a practice of this person or company, you may be able to get treble the net value and attorney fees under the unfair and deceptive trade practices statute. For more detail you can read my original article here. 

The statute of limitations for the wrongful cutting of timber is three years from the date the trespass began. (Four years if you can proceed under unfair and deceptive trade practices). One unique problem of timber trespasses is that the cutting usually occurs on rural property, far from major roads or residences. I currently have a client who had a tract of timber in a swamp, with no access other than by small boat. In that case it could be years past the statute of limitations before the cutting is found out.

Therefore, timber cutting cases frequently benefit from an extreme application of what is known as the “discovery rule.” For the statute of limitations on timber cutting and trespass, as well as most other types of lawsuits, the statute does not begin to toll until the plaintiff knew or should have known about the trespass. In other words, to determine your deadline to file a suit, you start counting from the date you found out that your timber had been cut, or when you should have found out. If the property is on a street that you drive by several times a year, or if you hear a rumor that your property has been cut, but you fail to investigate, a jury could find that you “should have known.” I’ve had timber cases that survived a statute of limitations defense where the property was so far back in the woods that the owner didn’t find out until almost 10 years later, and that only from a coincidental aerial photo.

Some types of claims other than trespass, notably medical malpractice and construction, in addition to a statute of limitations, also have a longer statute of repose, which is a hard deadline, and will start the clock running whether the plaintiff could have known about what happened or not.   

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

 

Medical Provider Liens

A lot of times it is easier as an attorney to obtain a personal injury or medical malpractice settlement from a defendant or an insurance company that it is to actually give that money to a client. One of the most common hurdles that an attorney and his client has to jump over is the payment of any valid liens. Essentially a lien is a claim by another person or company for some or all of the money that an injured person recovers in settlement or judgment of a personal injury or medical malpractice laws. Common liens are ones by Medicare, Medicaid, Teachers’ and State Employees’ Health Plans, ERISA, and Worker’s Compensation. One of the oldest and most common of the liens that can attach are those for medical providers. N.C.G.S 44-49 and N.C.G.S. 44-50 allow any person or company who provides drugs, medical supplies, ambulance services, physician, dentist, nurse or hospital services to claim a lien. In order to have a valid lien (or “perfect” the lien), the medical provider must furnish medical records upon request without charge. A provider is allowed to charge for copies of medical records under N.C.G.S. 90-410 and N.C.G.S. 90-411, but if it does so, it cannot have a lien on its bills for services. The lien rights are waived even if the bill for the copies is never paid or if the medical provider takes back the copying charges before they are paid. In addition, the provider must provide copies of the medical bills without charge. Further, the provider must give written notice saying that they are claiming a lien. That notice must be sent to the attorney for the injured person. Finally, the lien can only be valid if the medical treatment claimed is related to injuries that is part of the settlement or judgment. If the medical charges are for a condition that has nothing to do with the conditions at issue in a lawsuit, the provider can’t get a lien on those funds.

So when considering a settlement for a lawsuit, always determine what liens are outstanding and what you will be required to pay out of any settlement.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Does Your Dog Bite?

“Every dog gets one bite,” is a bit of homey legal wisdom that is often repeated by laypersons and even lawyers, but it is not entirely true in the state of North Carolina. The first way a person can recover from a dog bite or attack is under a negligence theory. Legally, a dog attack on someone at a person’s house is analyzed the same way a slip and fall case would be. The owners of the dog would have to have some knowledge that the dog was vicious or mean and they should have foreseen that the dog could injure somebody. If the dog had previously bitten or attacked someone that would be evidence that the owners knew or should have known about the dog. However, an actual bite would not be required. Other behavior from the dog such as an attack prevented by a fence or leash, or even excessive barking or growling could be evidence that the owners should have known the dog could attack and hurt someone. Note that not only the owner of the dog could be held liable for injury from a dog bite under a negligence claim, but a landlord or owner of the house could also be held at fault if they had knowledge of the viciousness of the dog, making this defense unavailable. Any claim of negligence in North Carolina allows the defendants to use the defense of contributory negligence. A person has some responsibility for his own safety and if he fails to do so, to the level of a reasonable and prudent person, he is contributorily negligent and cannot win his case. If the injured person knew about the vicious propensities of a dog and was around the dog anyway; or if the injured party was teasing the dog; could be evidence of contributory negligence.

The second way to recover on a dog bite is by statute. The North Carolina statutes provide that a person who owns a “dangerous dog” is responsible for any injuries it causes, regardless of whether or not he was negligent. The statute provides that a “dangerous dog” is one that has already killed or seriously injured a person; a dog kept or trained for dog fighting; or is determined by a county or city to a “potentially dangerous dog.” A “potentially dangerous dog” is determined after a hearing by a city or county authority and can be appealed to a superior court judge. To find the dog to be a “potentially dangerous dog” the authority must either find that the dog has bitten someone that caused broken bones, disfiguring cuts, or required cosmetic surgery or a trip to the hospital; or that the dog killed or caused severe injury to another animal while not on the owner’s property (and was not involved in hunting, herding or predator control); or approached a person in a vicious or terrorizing manner when not on the owners property. If a dog is a “dangerous dog” or has been determined by a city or county to be “potentially dangerous” then the owner is responsible for any damage to people, other dogs or animals or property that the dog causes. He also would be criminally guilty of a Class 1 misdemeanor. Even if the owner kept the dog fenced up and muzzled, but through no negligence he escaped and caused damage, the owner would still be responsible. The only defenses would be if the injured person was trespassing on the property or was tormenting or abusing the dog. The statues also do not apply to police dogs “on duty” or dogs used in a lawful hunt.      

Finally, note that local cities and counties are permitted to enact additional ordinances regarding dogs and dangerous dogs that are more restrictive than the state laws. So if you have a question, be sure to check with your local laws.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

 

Warranties

You can get good bargains from buying things from classified ads, or Craig’s List, or at a garage sale. Aside from scams, the biggest problem is what happens when you get that new (to you) boat, vacuum cleaner, Betamax, or automatic tomato planter, home and it quits working. What protection do you have? Legally, you have much of the same protection that you have when you buy from a large, commercial realtor. Your protection is in the form of various modifiable warranties that come with your purchase.

The first type of warranty is called an "express warranty." An express warranty is made up of the actual representations of fact made by the person selling the item. The representation can be verbal, contained in the contract, written in advertisements, or any other statement of fact or description of the goods. The representations must be part of the basis of the bargain. Therefore, you actually have had to have seen a particular advertisement or heard a particular representation, before it can form part of an express warranty. Also, the law recognizes that some statements made by a seller are mere seller’s talk or “puffing.” A statement purporting to be simply the seller’s opinion is not an express warranty, nor is a simple affirmation of the value of the goods.

The second type of warranty is an "implied warranty of merchantability."  This type of warranty, unlike the express warranty, does not rely on any actual affirmations regarding the product. This is also where you have better protection from a retailer as opposed to a Craig’s List ad, because for this warranty to apply, the seller has to be a “merchant” in that type of product. A "merchant" is a person who deals in goods and products or represents that has special knowledge and skill regarding such products. The basic test for the implied warranty of merchantability is whether the goods would pass without objection in the trade under the contract description, and whether they are fit for the ordinary purpose for which such goods are used. Also, where the goods are fungible (interchangeable) they must be of fair, average quality. If there are a number of units, they must be within the variations allowed by the agreement, to be of even kind, quality and quantity. They must also be adequately contained packaged and labeled as any agreement may say. Finally, the product should conform to any promise made on the labels. 

The third type of warranty is another implied warranty: The warranty of fitness for particular purpose. The warranty can cover all sellers, merchant or not. This warranty arises when the seller has reason to know of any particular purpose for which the goods are required, and that the buyer is relying upon the seller’s skill to select suitable goods.

So let’s say you see an ad in Craig’s List for a used boat at a good price. The ad says it’s a “fun, little boat.” (seller’s opinion or “puffing.”). The ad also says it has a fuel capacity of 45 gallons and a 1340lbs weight capacity and will run without repair for one year. (express warranty). You meet with the seller who tells you he has a side business of buying used boats and fixing them up and selling then on Craig’s List. (merchant). You want the boat to do what boats do, get you around on the water, and not just sink to the bottom. (implied warranty of merchantability). You also tell the seller you want to be able to take the boat out of the calm waters in the sound, into the ocean, where you’ll do some fishing. (Implied warranty of fitness for particular purpose). 

These warranties are modifiable or can be waived either as to the scope, or as to the damages allowed if the warranty is breached. An express warranty can be modified by express words or conduct, but if the words creating the express warranty contradict the disclaimer, the disclaimer will be ignored. So on our boat example, if the ad said it would run without repair for one year, but then said there was no express warranty, the latter would be ignored. If the ad said it would run without repair for one year, and if it didn’t, the seller would provide a new engine, but not the labor to install it, that would be a valid modification. The implied warranties can also be waived either in writing or verbally. With the implied warranty of merchantability, the magic word “merchantability” must be used and if the disclaimer is in writing, it must be “conspicuous.” For example, written in ALLCAPS or in a different color. In addition, all implied warranties may be excluded by the use of phrases like “as is” or “with all faults” or other similar language. Finally, an implied warranty can be waived if the buyer has examined or has been offered the chance and then refused to examine the product and the defect is something that an examination should have been discovered.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

What to do if you are served with a subpoena.

In a lawsuit, the way information is produced or documents received from the other party is through the discovery process under the rules of Civil Procedure. The parties in a lawsuit have to answer to a judge if they fail to obey these procedures. However, in most cases, a third party, who is not either the plaintiff or defendant in the lawsuit, has some important information related to the case. Since those parties are not in the lawsuit, the judge has no inherent power, or jurisdiction over him to force him to comply with even reasonable requests for information. The way the parties get information, documents or testimony from someone not involved is through a subpoena.

Rule 45 of the North Carolina Rules of Civil Procedure governs the use of subpoenas by parties. A subpoena can be issued by the clerk of court, or by a judge or magistrate. Even the attorney for the party demanding the information, documents or testimony, as an officer of the court, can issue a subpoena. So there is no hearing or discussion as to what it is that the party wants, or why they should have it, before a subpoena is issued. A subpoena must then be served on the person. It can be served in person by the sheriff, a deputy, coroner, or any non-party who is over 18. The subpoena can also be served by certified mail, return receipt requested. Finally, a sheriff can serve a subpoena for the attendance of a witness by telephone. Therefore, trying to get out of testifying or producing documents by avoiding a subpoena is usually just a stalling tactic. Chances are, eventually you’ll get served.

So you’ve gotten a subpoena from the sheriff or mail or another proper method. What do you do? First carefully read the subpoena. It is required to provide you with information regarding the lawsuit, including the title of the action, the name of the court, the name of the issuing person, and the name of the party who is asking for compliance with the subpoena. Note that there must be a lawsuit before a subpoena can be issued. If there is no lawsuit, even if there is a claim or controversy, a party cannot have a subpoena issued. The subpoena should also have date, time and location for the person to show up and testify and/or produce documents that the subpoena lists.

Second, once you understand what the subpoena is demanding, you can make a decision on how to respond. If the subpoena is for your appearance at a deposition   and or to produce and permit copying of documents you can serve (in this case U.S. mail or hand-delivery) to the other party or attorney objections to the subpoena. The party issuing the subpoena then has to schedule a hearing before a judge, with notice to you, regarding your objections and to compel you to obey the subpoena. Alternatively for depositions and/or production of documents and for trial attendance, you can move to quash the subpoena and go straight to a hearing before the court. Either way, if you have issues with the subpoena, you can be heard before a judge. You must make your objections or motion to quash 10 days after you were served or before the date of compliance if you were served with less than 10 days notice. 

However, you are not allowed to object to a subpoena for any reason. The allowable objections are 1) there is not reasonable time for compliance, 2) there is privileged or protected information that is being requested, 3) subjects you to undue burden or expense, 4) it is unreasonable or oppressive or 5) the procedure was not followed (issuance and service).

A reasonable time for compliance is different depending on what is being asked. 10 days may be more than enough notice to testify at a deposition, but would not be reasonable if it asks for years and reams of documents. “Privileged information” means a recognized privilege of confidentiality in North Carolina, such as communications between a person and their lawyer (attorney/client privilege). The court will also consider trade secrets or other types of confidential information in balance with the purpose for the production and whether or not the information needed can be gained by other means. The court can modify a subpoena and issue limitations or protective orders on documents provided, to address the concerns of a person regarding confidential information. Similarly, a court can address things such as scheduling, locations, travel expenses, or a multitude of other concerns that a person may have that would fall under one of the 5 objections. Only seldom does a court come across an objection that cannot be alleviated to address the person’s legitimate concerns while still providing needed information or testimony to the issuing person.

If your only objections are time and place and the amount of documents you have to bring, the best practice would be to call the attorney who issued the subpoena. Usually they will work with you to get your testimony or documents with the least amount of trouble to you that they can. If the subpoena is for trial testimony, it will usually require you to be present in court on the first day of trial. However, most attorneys if you agree to cooperate, will try and fit you into the trial as best they can and will have you on telephone standby for your attendance. If there are trade secrets or privilege or if the documents themselves may hurt you in some way, you should consult with an attorney.  

What you should not do is fail to respond. A judge can order you to produce and then fine you for contempt of court if you continue to fail to respond. I’ve had a judge in a trial send the deputy to a subpoenaed witness’s house and bring him to the courtroom. Continuing refusal to obey as subpoena will eventually subject you to monetary sanctions from the court and even jail time.

 --Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

A Hobbit's Contract

     My first-grader and I have been reading “the Hobbit,” in anticipation of the movie coming out this month. While it was one of my favorite books as a kid, I had not read it in many years. Doing so, I was surprised at the amount of legal issues in the books, particularly contract law, which is usually not the type of thing you expect to find in a young adult fantasy novel.

 

 

 

 

[Spoilers below-Note that the following is taken from the book. The movie has some differences in how Bilbo joins the dwarves]

 

 

 

 

    Our hero and title hobbit in the story is Mr. Bilbo Baggins. At the beginning of the story, Mr. Baggins claims to be comfortably ensconced in his respectable lifestyle, when suddenly, in a flurry of activity, he meets a wizard and thirteen dwarves who all descend on his home, eat several meals, sing songs, spend the night, and tell tales of their quest to reclaim their home from the dragon, Smaug. Getting caught up in the chaos, Mr. Baggins finds himself agreeing to a contract as a “burglar” (or “expert treasure hunter” if he prefers) for a portion of the treasure and is swept up and on the road to the dragon without even having time to grab a pocket handkerchief.

    The dwarves arrive at Bilbo’s home in response to an “offer” from a mark on the door, which they explain states “Burglar wants a good job, plenty of Excitement and reasonable Reward.” The mark on the door is put there by the wizard, Gandalf, who (for mysterious wizard reasons of his own) has determined that Bilbo should be the 14^th member of the dwarves’ company. When told, Bilbo of course, denies having put the mark but then, his pride hurt and some doubts of his character by the dwarves, states to them, “[t]ell me what you want done, and I will try it, if I have to walk from here to the East of East and fight the wild Were-worms in the Last Desert.”

    The next morning, Bilbo sleeps late, and relieved to find the dwarves have already gone. He then sits down to a leisurely breakfast, and then begins a second breakfast, when the wizard bursts in looking for the hobbit, and tells him to check the mantel for the note the dwarves had left. The note reads as follows:

“Thorin and Company to Burglar Bilbo greeting! For your hospitality our sincerest thanks, and for your offer of professional assistance our grateful acceptance. Terms: cash on delivery, up to and not exceeding one fourteenth of total profits (if any); all travelling expenses guaranteed in any event; funeral expenses to be defrayed by us or our representatives, if occasion arises and the matter is not otherwise arranged for.

Thinking it unnecessary to disturb your esteemed repose, we have proceeded in advance to make requisite preparations, and shall await your respected person at the Green Dragon Inn, Bywater, at 11 a.m. sharp. Trusting that you will be punctual,

 We have the honour to remain

Yours deeply     

Thorin & Co.”

    Gandalf hurries along Bilbo who ten minutes later finds himself at the Green Dragon Inn and the start of his adventure. Based on these series of events, does a contract exists? When was it formed and what are its terms?

    First, we will assume that contract law in Hobbiton and the Shire is, for basic purposes the same as law in 2012 North Carolina. This is not an unreasonable assumption as Bilbo’s homeland appears to be closely modeled on Edwardian England, of which its author was most familiar. Both the English courts of that time and North Carolina courts of today, base much of its law on the common law of England.

    Second, a contract is more than a unilateral promise. The difference is “consideration.” That simply means that both sides have some kind of obligation under the agreement to do something. The obligations of each party don’t have to be equal or fair, just that there is something going both ways. A contract also requires both the parties to have a “meeting of the minds” as to its terms. A contract first has an “offer,” which sets forth what each party to the contract brings. After the offer, there must then be an “acceptance,” by the other party before a binding contract is issued. The matter becomes complicated as if an “acceptance” has different terms than the “offer,” it is really a second offer that the original party must now accept.

    Looking at Mr. Baggins’ negotiations, the mark on the door would probably be considered an advertisement or an invitation to make an offer rather than an offer itself. Similar to a classified ad. Therefore the dwarves coming to his house could not be an “acceptance.”  Bilbo’s later oral statement when he says he will walk from here to the East of the East and fight the wild Were-worms in the Last Desert, is difficult to determine. If I said that to you in North Carolina today, it would simply be a joke, or an expression, and would not be intended or understood literally. The Third Age of Middle Earth may be a bit different as there may actually be a location called “East of the East” and the “Last Desert” and creatures known as “Were-worms.” Still, it does appear that Bilbo is expressing his desire to try whatever the dwarves require rather than exactly what he states.

    The next in the series of events is the note Bilbo finds on the mantle. Even if Bilbo’s statement the night before was an offer, this note can’t be an acceptance as it changes those terms. Therefore it is an offer. While the offer is short, it does state the consideration. Bilbo is to provide his “professional assistance” and the dwarves will provide a share of the profits. “Professional assistance” is a bit vague on what Bilbo is supposed to do. To make that determination, the courts look to the common, understood meaning of the words. They then look to see if the provision is in harmony with the rest of the contract. If the court still finds the phrase to be “ambiguous” it could consider the conversations made the night before. If a court were to consider this “parol evidence,” it is clear to me that Bilbo is hired to join the dwarves for an expedition to the Lonely Mountain (where the dragon has the dwarves’ home and treasure) and that he is to be a “burglar.” Of course, the best practice is to get it all in writing and reviewed by an attorney so that all the concepts and terms are clear and defines and a court doesn’t have to hold hearings on what was said at a party the night before the offer was extended

    There is no mention in the book of Bilbo signing any document or even stating orally “I agree to your terms.” However, since he shows up at the Green Dragon Inn (with hardly a minute to spare) and proceeds with the dwarves for many months toward the goal of the Lonely Mountain, the law deems that an acceptance by performance. So as we leave Hobbiton, Bilbo is under a binding contract for his services as a burglar.

    In North Carolina, a promise to perform an illegal act cannot be valid consideration and therefore a contract can’t be formed. If Bilbo agrees to perform services as a “burglar” is that an illegal activity? Clearly if I were to contract with somebody today to rob a house, that would be an illegal and invalid contract. “Burglar” in the context of the story however doesn’t appear to be an illegal activity. It seems to be more in the vein of a salvage operator or a scout or even an enemy spy, than an actual thief.             

    Once surrounded by goblins in the caves of the Misty Mountains and he decides he really doesn’t want to be a burglar anymore, can Bilbo terminate the contract? Since this is a service contract, the dwarves cannot force him to continue as his burglar. Only where a performance is unique will a court force a person to comply with specific performance. Presumably, there are other burglars in Middle-Earth (and ones probably more experienced than Mr. Baggins). Bilbo of course would forfeit any right to his 1/14^th share, but the most the dwarves can get is monetary damages. The damages they could recover would be the expense of getting a new burglar and any damage that delay would take, for example, if some enterprising young dragonslayer killed old Smaug and t ook the treasure while the dwarves were still mucking around looking for a replacement burglar.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

With those lawyers, it would take a Christmas Miracle...

Last Sunday, the kids and I went to the Thalian Association’s production of  "Miracle on 34th Street" a musical adapted from the 1947 movie starring Maureen O’Hara, Edmund Gwenn, and a very young Natalie Wood. My theater review:  Wonderful entertainment, terrific cast, and catchy songs, with a kind of rare “Christmas Special” vibe that you used to get from holiday TV shows and movies before you could get any video you thought of on DVD, Netflix or YouTube. Take a few kids and enjoy the show in a lovely old theater in downtown Wilmington. The final run is December 13-16 and tickets are going fast.

As a theater goer and sometime amateur actor, I loved the show.  As an attorney I found some of the legal strategy employed by the attorney for Santa Claus, and his opponent, while entertaining, somewhat questionable.

 

Spoilers below (If that is possible from a story almost 70 years old).

 

 

 

A dignified older gentlemen is indignant to find that the person assigned to play Santa in the annual Macy's Thanksgiving Day Parade is drunk. When he complains to event director Doris Walker she persuades the man, who says his name is Kris Kringle, to take his place. He does such a fine job that he is hired to be the Santa for Macy's flagship New York City store on 34th Street. Gradually, the employees of Macy’s come to the realization that Mr. Kringle believes he is, in fact, the real Santa Claus.

Pursuant to Macy’s policy, a Mr. Sawyer gives Kris a "psychological evaluation". Kris seems to pass the test but antagonizes Sawyer by questioning Sawyer's own psychological health while insisting he is the one, the only, Santa Claus. Sawyer then has Kris committed. In his first case, an ex-Marine, Fred Gailey, agrees to defend Mr. Kringle in a hearing before Judge Henry X. Harper of the New York Supreme Court in the commitment hearing.

At the hearing, District Attorney Thomas Mara gets Kris to assert that he is in fact Santa Claus and rests his case, believing he has prima facie proven his point. Fred stuns the court by arguing that Kris is not insane because he actually is Santa Claus – and Fred will prove it. Based on testimony of R.H. Macy (and a nice song and dance number) the court recognizes the existence of Santa Claus. The DA then demands that Mr. Gailey prove that Mr. Kringle is Santa Claus. Mr. Gailey asserts and the DA stipulates that the U.S. Post Office is competent and efficient authority for determining the identify of a person. With that, bags of letters addressed to Kris Kringle as Santa Claus swamp the court. Declining to dispute the Post Office's "legal recognition" of Kris as Santa Claus, Harper dismisses the case.

First, keep in mind that Sawyer is trying to get Kris into inpatient, involuntary commitment. That is not, and shouldn’t be, an easy task as there are huge civil rights issues involved in restraining somebody against their will. Therefore the statutes and the law are specific and narrowly tailored. Second, Let’s assume that the statutes for involuntary commitment in New York in 1947 are the same as North Carolina in 2012.  Under such a law, In order for Mr. Sawyer to have Kris initially involuntarily committed, he would have to sign an affidavit (statement under oath to a notary) that Kris was mentally ill or dangerous to himself or dangerous to others. When a person swears out such an affidavit, and a clerk or magistrate finds probable cause to believe it is the truth, they can issue an order for involuntary commitment. The law enforcement officer would then take the alleged incompetent into custody and provide him an examination by a physician or psychologist without unnecessary delay. Since Mr. Sawyer was apparently a licensed psychologist, he appeared to skip this step. Then, within 10 days of the person being taken into custody (or about 2 scenes later in theater time), the hearing before a district court judge is required. To support an order for involuntary, inpatient commitment, the judge must find by clear, cogent, and convincing evidence that the person is mentally ill and dangerous to himself or others. The judge is also required to record his findings of fact in the order, giving a justification for his decision.

In “Miracle,” the DA, apparently phoning it in with an “open and shut” case right before Christmas, calls the wrong witness. Instead of calling Mr. Sawyer to testify that Kris is mentally ill and dangerous to himself or others, he calls Kris.

District Attorney: What is your name?
Kris Kringle: Kris Kringle.
District Attorney: Where do you live?
Kris Kringle: That's what this hearing will decide.
Judge Martin Group: A very sound answer, Mister Kringle.
District Attorney: Do you really believe that you're Santa Claus?
Kris Kringle: Of course.
District Attorney: [long pause] The state rests, your honor.

Now, without any psychiatric testimony or even documented medical records, I don’t see how it’s possible Judge Group could find findings of fact to support that Kris was mentally ill and dangerous to himself or others. So, because of the screw-up of the District Attorney, all Gailey has to do is ask the court to dismiss the case and they can skip right to the curtain call, but Gailey keeps going. There is a temptation in all trials to keep trying the case, keep talking, and to be too clever, and it often backfires. If he wanted to keep arguing, or if the DA had the sense to put Sawyer on the stand, Gailey could have called Kris’s psychiatrist from the Brooks Memorial Home for the Aged (who was sitting back in the chorus) during the hearing. The doctor had appeared in an earlier scene and specifically said Kris “may be delusional, but it's a delusion for good.” I think it can be implied from that dialogue that the doctor would not find Kris dangerous to himself or others, and the judge would find more weight with a doctor who had been treating Kris than some quack who worked for a department store and gave the guy some form test.

But Gailey decides to play on hard mode. Rather than win the case he has, he decides he wants to prove that Kris is sane by proving that he is actually the one and only Santa Claus, despite the fact that is not the question before the court and is not what he needs to prove to win for his client. He even shifts the burden of proof. Rather than the DA having to prove Kris is mentally ill and dangerous to himself or others, Gailey accepts that he has to prove that his client is Santa Claus. Even if it is true, it’s a lot harder to prove, even if Jingle and Jangle Bells come into court to testify. Luckily for Gailey, he stumbles on to the Post Office defense and Judge Group (relived he didn’t have to rule against Santa with an election coming up) quickly rules for Kris before his attorney can start talking again. 

So we get a happy ending and looking back, I suppose I am guilty in this blog post of doing what Gailey did. Maybe what Gailey was really trying to do was help Kris give everybody the Christmas spirit. What he did and what the production of “Miracle on 34^th Street” had to do was to entertain a packed house of people, not prove a legal point. And in that, they succeeded brilliantly.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Lawyer in a Box

Consumer Reports took a break from comparing washing machines and SUVs and subjected some of the do-it-yourself legal products to their testing and review. Using the products of LegalZoom, Nolo, Rocket Lawyer, and Quicken's Willmaker Plus, the testers created a will, car bill of sale, a home lease, and a promissory note using those company's directed worksheets or downloads. They then took it to three law professors in a blind test to compare the products. The ultimate conclusion was that all of the services were generally better than doing it totally by yourself, none of them could really take the place of an attorney. Some of the documents would not let you modify a document to fit your specific situation, even though legally it could be done. Others would allow too much leeway and allow a person to add items that could contradict other parts of the same document or have no legal effect at all.

Some things I do recommend that a potential client at least attempt to do before hiring me or another lawyer. For lawsuits for amounts under $5000 there is small claims court. The North Carolina Secretary of State has all the forms needed to form a simple limited liability corporation. Even minor car wrecks where the only issue is property damage to the car (no personal injury), I suggest the potential client try and handle themselves and only pay me if they feel that the matter has gotten too complex for them. However, the examples of the documents tested by Consumer Reports are things that I would not recommend a person handle without at least a consultation from an attorney. These types of legal documents may have unintended results, and at best, subject the document to a legal challenge in court, and at worst, could achieve a result contrary to what the person intended.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

 Free image courtesy of FreeDigitalPHotos.net

Tenant's Rights in Foreclosures

English: Foreclosure signs, Mortgage crisis, (Photo credit: Wikipedia)

With the downturn of the economy, and the burst of the housing bubble, large numbers of landlords find themselves unable to meet their mortgage payments and their rental property goes into foreclosure. If you a a tenant, with a valid lease on the foreclosed property, what rights do you have?

The “Protecting Tenants at Foreclosure Act of 2009” provides federal law on the matter of tenants’ rights at foreclosure and is applicable until December 31, 2014 at which point it will expire.  There is also North Carolina state law which applies in specific circumstances to tenants’ rights at foreclosure. 

When there is foreclosure of a residential property, such as a home or apartment complex, there are several protections in place for the tenant of the property.  Federal law allows the tenant to remain in the residence through the remainder of the lease term even though the property has been foreclosed and sold.  There are two exceptions to this general rule.  First, if the purchaser of the foreclosed property will use the property as his primary residence, he may terminate the lease after providing a ninety (90) days notice to the tenant.  This would require the tenant to be off of the property ninety (90) days after the notice is provided to him.  The second exception applies when there is no lease between the tenant and the owner of the foreclosed property or the lease is described as being terminable at the will of either party, meaning that at any point during the tenancy either party (landlord or tenant) can choose to end the lease.  As with the first exception, when there is no lease or the lease is terminable at will, the purchaser of the property must give ninety (90) days notice to the tenant prior to terminating the tenancy. 

The above exceptions apply so long as three requirements are satisfied.  The mortgagor (former owner of the property) or his child, spouse, or parent cannot be the tenant on the foreclosed property.  The lease for the property must have been created by a transaction in which both parties were acting independently and have no relationship to each other.  Lastly, the rent being paid for the tenancy of the property cannot be significantly less than the fair market rental value for the property.  If these requirements are satisfied then the lease or tenancy is considered bona fide, meaning it was made in good faith without deceit or fraud.

Furthermore, the federal law speaks directly about tenants of Section 8 housing rights at foreclosure.  Section 8 provides housing assistance to low income families by paying a portion of rent and utility bills, allowing the families to obtain an adequate place to live.  If the tenant is a Section 8 tenant as described in the United States Housing Act of 1937 (42 U.S.C. 1437f(o)(7)), the tenant may only be evicted if the purchaser of the property will occupy the property as his primary residence.  Again, it is required that the tenant must be given ninety (90) days notice before eviction can take place.

 In addition to the federal law regarding a tenant’s right at foreclosure, North Carolina General Statute § 42-45.2 applies when the lease or tenancy is not bona fide as described above or the tenancy is not a result of Section 8 housing.

 When North Carolina law applies to a tenant’s rights at foreclosure, it is necessary to know if the residential property contains less than fifteen (15) rental units or fifteen (15) or more rental units.  If the property contains less than fifteen (15) units, the tenant can, upon notice of foreclosure sale, terminate his lease by giving the landlord written notice of termination at least ten (10) days after the notice of sale.  Also, if the property contains less than fifteen (15) rental units and the tenant does not terminate his lease, the tenant must be given ten (10) days notice prior to eviction.  Alternatively, if the property contains fifteen (15) or more rental units, tenants must be given thirty (30) days notice prior to eviction.

In most circumstances it is likely that the federal “Protecting Tenants at Foreclosure Act of 2009” will apply giving tenants the option to remain on the property until the end of their lease term or providing ninety (90) days notice when either of the two exceptions apply.  The North Carolina statute which provides less notice to tenants prior to eviction will only apply when the federal law is not applicable because the tenancy or lease is not bona fide or there is not a Section 8 tenancy.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

The Magic Multiplier

In North Carolina, damages for personal injury involve several different kinds of damages. First are the hard damages or “specials” as some call them. These are the damages where the amounts are usually easy to determine. As long as medical bills and lost hours at work can be shown to be caused by the negligence of a defendant, the jury has an easy time determining exactly how much the injury is. Other damages are soft. Past, present, and future mental pain and physical suffering, permanent injury, scarring, and loss of function are all legitimate damages but don’t have an invoice attached to them. Ultimately a jury decides how much the plaintiff’s pain is worth, based on the facts of the case and their own life experiences.

Settling a case, or deciding not to settle a case and have it tried before a jury, requires a plaintiff to evaluate the value of his case and somehow forecast a range of verdicts a jury may give for both the hard and soft damages.   

Many clients believe in the old rule of thumb that a personal injury case is valued at three times the medical bills, plus the hard damages. Some clients even believe this is the law. It is not the law and I have never seen or heard of it even being used in an argument to a jury. At one time it may have been standard practice for personal injury attorneys and insurance adjusters. However, even if it was at one point a good ballpark number for an initial case evaluation, it is no longer the case, and has been for the most part largely rejected for many reasons. 

For example, a jury is pulled from your county or jurisdiction. Some counties are more conservative than others in awarding damages because of age, employment, military service, and several other factors. In addition, the type of injury effects the amount of pain and suffering a jury will award. While the actual pain of a broken bone you can see on an X-ray, and a sprain or strain of the ligaments of the back that you cannot see, may be exactly the same, a jury will typically award more pain and suffering damages to the broken bone. Juries can give more weight to medical doctors over chiropractors even if both testify the same. Also, the idea of tort reform and the fear of a jury of giving out the next “McDonald’s coffee case” can skew the amounts a jury may award. Finally, although the law says and the judge will instruct that the jury not consider damages until they determine liability, the reality is that jurors make deals. A juror skeptical over the fault of a defendant, may nevertheless find against him if the damages are kept low. Finally, ever increasing cost of medical treatment, and the type of treatment, can skew the total of the medical bills out of proportion to the actual injury.  

Experienced attorneys can take all those factors into account and give you a good, realistic value of your case and give you the best knowledge of the risks and benefits of settling for what the insurance company offers, and taking a risk of trial.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

Chris Brown, Rihanna, and What Comes Next

Below is a post that my friend, Roger Canaff first posted on his excellent site where he discusses criminal law and violence against women and children. I thought it an excellent discussion of this area and he graceously gave me permission to share it here. 

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If an adult, even a young one, can be labeled by his actions, Chris Brown is a violent, narcissistic thug. The savage, lengthy beating he inflicted on his then-girlfriend Rihanna in 2009 earned him a felony conviction, something not particularly common in the world of intimate partner violence. I saw quite a few of those cases as a prosecutor, many of them violent and damaging, but few other than homicides that merited the possibility of a prison sentence. It’s a possibility Brown avoided, but happily so for many adoring fans who still refer to that drawn-out, bludgeoning attack as a “mistake.”

Since that mistake, Brown has shown again and again an explosive, boundary-bereft side and a frightening inability to even fully control himself.

Now, for whatever reasons, Rihanna has chosen to request a relaxation of the protective order she was granted against him, and to collaborate with him musically. Collaboration may be all it is. Or, she may be entertaining a friendship or something more with her attacker, a circumstance often encountered if rarely justified.  She was a blameless victim in the pummeling she endured, and since I know nothing of her personally I won’t seek to judge whatever reunification she’s navigating with Chris Brown now.

But I will judge the “Birthday Cake” remix she is releasing and on which Brown joins her, because it’s classless and crass, even by the standards of Rihanna who often objectifies herself sexually in her music. But what makes this first collaboration since Brown’s arrest and conviction far worse is the past that underscores it.  What Chris Brown adds to the magic of “Birthday Cake” includes the lines “Girl, I wanna f— you right now. Been a long time, I’ve been missin’ your body.”

Bravo, Chris! This is far more than an expression of what I suspect are your creative limits or your grasp of subtlety and real sexuality (which I rather enjoy, although I find it resonates more when it isn’t reduced to the sputtering of a worked-up child). It’s also a window into how you likely viewed this woman before you viewed her as a punching bag. She’s a toy as far as you’re concerned, and that’s how you want to treat her. First sexually.  Then violently. Then sexually again.

Take a wild guess, dear reader, as to whether a pattern is forming here.

Lewdness in pop music is a fact of modern life. Many would criticize Rihanna for the overt sexuality she injects into her music and speculate darkly from it on how she views herself. I won’t. Frankly, she has the right to engage her sexuality in any way she sees fit and I won’t impose my model or that of anyone else in an effort to judge her. What she does artistically and how it might affect the millions of girls who look up to her is best discussed elsewhere.

For now, what’s clear is that Rihanna, a beautiful and talented young woman, was beaten- breathtakingly- by a man who now joins her in a song in which he celebrates the idea using her like a plastic doll.  That’s wrong on more than one level. Unfortunately, I doubt either of them have a clue.

© 2012, Roger Canaff. All rights reserved.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

Good TV

I’ve watched a lot of lawyer shows over the years. The first I remember was “The Paper Chase” which was actually about law school. After watching that I decided I didn’t want to be a lawyer just from the shear amount of stress it appeared that law students have. (Of course I did eventually go to law school and handled it better than my grade school self thought I could). After that I went through various shows, most notably “L.A. Law” and “The Practice.” During and after law school, I stayed away from lawyer shows, since by the end of the work day I wanted to get away from the office but lately I’ve been watching “The Good Wife,” with my good wife about a woman who goes back to work as a 2nd year associate in Chicago after her husband, the District Attorney, is removed from office and goes to jail in a scandal. I enjoy the show, but there are some things about it, and most other lawyer shows I’ve seen, that have me scratching my head. Usually those things are not about the law. I don’t know the law of Illinois, where the show is set, but the general legal principles seem to be followed. I assume they have legal consultants for the show (where do I get that gig) who help guide the writers on the law. Most of the things that are procedural issues or the business of the law firm more than the law itself. If I wanted to make a more “realistic” version of this or other legal TV shows I’d have to do some of the following.

1. One “big case” a season. Week to week on “The Good Wife” they get a $80M settlement, a $55M class action, a $30M verdict etc. Those lawyers make a lot of money every week to keep working in private practice. Unless rent in a Chicago office is over $1M a month, I don’t know why the partners keep stressing about their client list and billable hours. My show would be maybe one “big case” a season, with a lot of little cases week to week. That is closer to how real lawyers operate. Any more than that, they are running for Senate, retiring to Malibu, or start commentating on Court TV.

2. Show the build up. The “one big case” rule would also allow people to show that a case is not signed up, worked up and tried in a few days. Most shows have our hero lawyers and their investigators finding out the twist in the middle of the trial, changing their whole strategy, and coming out the victor. Yes, sometimes this happens (and it does make a great story when it does) but the workup of a case by the attorneys and investigators can take months, if not years. Little cases take a few months as well, but we have to give a nod to some entertainment values. Nobody wants to watch a guy shuffle through papers for an hour and wonder where the hell stuff is.

3. Adversaries not Enemies. My experience is that lawyers are much more professional than what is depicted. It is understandably difficult for Hollywood, America, and even our own clients to understand that we can be an aggressive advocate for their rights, and our opponent can be for her client, without her being mean, nasty or just evil. Those people do exist, and some of them are attorneys, but we know who they are, they are a minority, and we know how to deal with them.

4. Relax the Firm Politics. “The Good Wife” has had a few on-going storylines about partners backstabbing each other, getting voted out, and associates competing against each other like it was the only job in Chicago. Law partnerships breakup just like any other business, but, especially where the lawyers are good, it is usually done with good will. The competition over clients is overblown as well. In North Carolina, the client gets to choose where to go when a lawyer leaves a firm. The case belongs to the client, not the lawyer or the lawyer’s firm. Sometimes the former lawyer or lawfirm will have a claim for legal fees for work if a client leaves the firm to follow a former partner (or for any other reason), but that claim would be on the work the former lawyer actually performed, so the client should not have to pay for double for legal work.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

The Kardashian Effect—Legal Separation, Divorce “Papers” and Whether to Seek Annulment or Absolute Divorce?

By now even the non-entertainment savvy amongst us has heard about reality television “star” Kim Kardashian’s made-for-television, multi-million dollar marriage to NBA player Kris Humphries, and their equally publicized break-up a mere 72 days later. Reports have circulated that Kim K. initially asked Humphries for an annulment, however his refusal to “agree” to one left her forced to go the more traditional route of filing for a divorce, citing “irreconcilable differences.”

One of the more frequent questions I receive in my domestic practice surrounds the question of exactly what “papers” a potential client must obtain in order to “legally separate” from his or her spouse. In fact, in North Carolina there are no such “papers” that are needed in order to effectuate a valid, legal separation. North Carolina is what is called a “no-fault” divorce state, meaning that the only requirement for legal separation is a decision by one of the spouses to end marital co-habitation, followed by the action of actually physically separating and no longer living together as husband and wife. It is not even required that the decision to separate be a mutual decision. So long as one spouse has communicated his or her desire to separate from the other spouse, and acted on it—meaning physically ceased cohabitation—a legal separation has occurred. Terms like “irreconcilable differences” are irrelevant in this state, as North Carolina does not require a petitioner to cite a reason for the separation in order to later file for an absolute divorce.

Back to the Kardashians, reports that KK’s beloved Mr. Humphries thwarted her attempts at an annulment might make for good checkout magazine fodder, but legally speaking this is not possible. This is because in California, as in this state, parties cannot merely “agree” to an annulment but rather they must qualify for one under some very strict criteria. Interestingly, the length of Kim Kardashian’s marriage would be irrelevant to a determination of whether or not she could have the union annulled. To “annul” a marriage is to ask that it be declared invalid, that it never legally existed. An action for divorce ends an otherwise valid marriage, whereas an action for an annulment seeks a declaration that the marriage never existed. Annulments are rare, largely because a person must prove grounds to qualify for an annulment before one may be granted by the Court.

Faced with not wanting to wait the mandatory twelve months it takes to obtain an absolute divorce, many newly separated clients ask whether they are able to seek an annulment of the marriage as a faster alternative. Unfortunately, the length of the marriage is not a consideration in whether or not annulment is available and seeking an annulment is not always a faster option for ending the legal bond of husband and wife. In some circumstances, a marriage may be declared “void” and in others, it may be “voidable” based upon a particular set of circumstances. Chapter 51 of the North Carolina General Statutes provides that a marriage may be declared void only if:

1) the marriage was between any two persons nearer of kin than first cousins, or between double first cousins;

2) either of the parties is under the age of 16 (with a limited exception) at the time of marriage;

3) one of both of the parties to the marriage was already married to another living person at the time of marriage;

4) one or both of the parties to the marriage was physically impotent at the time of the marriage; or

5) at the time of the marriage, one or both of the parties was “incapable of contracting from want of will or understanding;” OR

6) the marriage was contracted under the representation that the female is pregnant, the parties separate within 45 days of marriage, and no child is born to the female within ten months of the date of separation.

It is important to note that none of the above-stated grounds for annulment have to do with fraud other than fraud regarding impotency or regarding a pregnancy. Fraud regarding other issues, for example the desire to have children, is not a ground for annulment.  Furthermore, only a bigamous marriage cannot be ratified by the parties. Meaning that even if one of the other “voidable” criteria is met, if the parties were aware of the defect at the time of marriage and married anyway, this is not a basis for annulment later.

As a practical matter, annulment is a rare and specialized cause of action. In most instances, parties will not qualify and will instead need to wait the requisite 12 months before they may petition the Court for a divorce. If you are contemplating separation or would like to speak with an experienced attorney, Hodges & Coxe can help. I offer free consultations and am always happy to sit down with you to discuss your specific case and to determine what path is best for you.

--Jennifer Bennett joined Hodges & Coxe PC as an associate attorney in 2010 and currently practices in the areas of general civil litigation and matrimonial law, focusing on divorce, child custody disputes, establishment and defense of child and spousal support obligations, equitable distribution and marital tort claims. You can reach her at (910) 772-1678 or at [email protected]

Power of Attorney

Protecting our financial interests is especially important in this day and age of social security and economic uncertainty. I say “our” to point out that this type of knowledge is certainly helpful to us all, myself included! And it’s never too soon or too late to get started.  That said, I’d like to take this opportunity to share a few of the estate planning lessons that I took away from a recent seminar.

IT IS ALWAYS A GOOD IDEA TO HAVE A POWER OF ATTORNEY. If you become incapacitated, such as through an accident, sudden illness, unplanned or scheduled absence, a general power of attorney allows you to name someone to act on your behalf with regard to any and all financial, business and contractual matters. This includes the opening and closing of bank accounts, paying of bills, transferring property and contracting attorneys and accountants. This allows YOU, not the court, to decide who is best able to handle your financial matters. If you become unable to handle your financial, business and contractual affairs and haven't appointed an attorney-in-fact, then court intervention will most likely be required before anyone may pay bills, sign a deed to transfer property, sign contracts, or decide other important matters. Moreover, a power of attorney may be required to get access to joint accounts and conduct other business. As a result, failure to appoint a financial power of attorney could ultimately cause excess stress to your family, unnecessary and additional legal fees and delays. Bottom line, it is always a good idea to appoint a power of attorney in the event that you may become unable to handle your financial affairs. Although it is certainly preferable to hire an attorney to draft your power of attorney, Chapter 32A of the North Carolina General Statutes explains the laws in NC with regard to powers of attorney. More specifically, NC Gen. Stat. §32A-1 provides a statutory short form power of attorney.

A HEALTH CARE POWER OF ATTORNEY IS A SEPARATE AND DISTINCT TYPE OF POWER OF ATTORNEY DIFFERENT FROM A GENERAL POWER OF ATTORNEY. The North Carolina General Assembly has acknowledged the fundamental right of an individual to control the decisions relating to his or her medical care, and that this right may be exercised on behalf of the individual by an agent chosen by the individual. As a result, North Carolina has established an additional, nonexclusive method for an individual to exercise his or her right to give, withhold, or withdraw consent to medical treatment, including mental health treatment, when the individual lacks sufficient understanding or capacity to make or communicate health care decisions by and through the designation of a health care power of attorney. Basically, a health care power of attorney allows you to name someone else to make medical decisions for you if you should become unable or unwilling to make these decisions for yourself. You can have both a living will and a health care power of attorney and both can be in the same document. Please note that someone providing health care to you for compensation cannot be named as your health care agent. If you do not name someone as your “health care agent” in a health care power of attorney, then your spouse or next of kin will make all medical decisions for you if you become incapacitated. Chapter 32A of the North Carolina General Statutes explains the laws in NC with regard to health care powers of attorney and NC Gen. Stat. §32-25.1 provides a statutory form health care power of attorney.

--Sarah Reamer currently practices with Hodges & Coxe PC and specializes in general civil litigation, focusing on real estate litigation and foreclosure protection. Please contact her at [email protected] or (910) 772-1678.

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Corporation Games

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Businesses can be organized in several different ways. One of the newer forms of business is a Limited Liability Company or LLC. The best way to understand an LLC is to compare it to a traditional corporation.

Limited Liability Company

A LLC is a legal entity that exists separate and apart from its owners. The owners of the LLC are called "members" (as compared to a corporation, where the owners are referred to as "shareholders"). An LLC is formed by filing articles of organization Secretary of State (filing fees are paid with the articles of organization).

There are three primary areas of an LLC that are attractive business owners:

The LLC, like a partnership, is given a pass through tax treatment, which means that profits and losses are reported on each member's individual tax return;

The LLC, like a corporation, provides liability protection for the members (assuming that potential debts and obligations are incurred in the name of the LLC and not the members individually), which means that creditors can assert their claims only against LLC and not directly against the members (again, assuming that the LLC is properly operated and the members do not personally guarantee any obligation of the LLC); and

The LLC provides flexibility in management and other issues while preserving the 2 advantages listed above.

Corporations

A for-profit corporation is a business structure formed by filing articles or incorporation with the secretary of state. A corporation is recognized as being separate and apart from its owners. (The owners are called "shareholders".) As a separate entity, it has its own rights, privileges, and liabilities apart from the individuals who form it.

The shareholders of a corporation are generally not personally liable or responsible for the debts or obligations of the corporation. A stockholder's personal liability is usually limited to the amount of his, her or its investment in the corporation and no more. A corporation continues to exist after the death of or transfer of shares by one or more of the shareholders. A corporation pays taxes on its profits, and its shareholders pay taxes on dividends, unless "S" tax status is elected - then the profits and losses of the corporation "pass through" to the shareholders.

The shareholders of a corporation have only the money that they have invested into the company at risk - shareholders are generally not required to pay their own money to satisfy any debt of or judgment against the company.

A corporation's existence may continue on regardless of what may happen to its individual officers, directors or shareholders. Also, ownership of the business may be transferred, without disrupting operations, through the sale of stock.

Capital can be more easily raised with a corporation. This may be accomplished through the sale of stock or other equity interests.

Corporations can offer anonymity to its owners. The corporate name is used in the operation of the business, generally not that of the shareholders.

--Matthew Adams joined Hodges & Coxe in 2010 as an associate attorney and currently practices in the areas of estate planning, estate administration, business formation and organization, business transactions, corporate law and taxation. Please contact him for advice on these issues at (910) 772-1678.

A not-so-social deposition

The movie “The Social Network,” is about the formation of Facebook. A lot of the narrative of the movie is told in flashbacks framed by the various depositions in the lawsuits between the parties who allegedly had role in the creation of the social media site. In this scene, Mark Zuckerberg, the creator of Facebook,(played by actor Jesse Eisenberg) answers some questions in a deposition by the attorney for the Winklevoss twins who filed a lawsuit alleging that Mr. Zuckerberg stole their idea and created Facebook. Despite this being an entertaining clip and it seems that Mr. Zuckerberg won this exchange, if this is how the transcript played out in reality, he did nothing but hurt his case.

One of the mistakes that people make in depositions is trying to argue with the other attorney. This happens especially with experts and professionals because they think they are smarter than the attorney asking the questions. In a lot of cases they are even correct (and it would not be a stretch to say Mr. Zuckerberg was smarter than the opposing lawyers). But by verbally sparring with the other attorney, you are doing more than just answering the question. You are providing the other attorney free information about your case. You are giving your opponent cross-examination material to use on the stand against you. Mr. Zuckerberg’s comments in this deposition can be read to a jury and introduced into evidence. In fact, this appeared to be a video depositionA good attorney could build an entire closing argument around these comments. “Thank you ladies and gentlemen of the jury for your attention to the facts in this case. That is all my clients, the Winklevoss twins asked of you and you have delivered. If only the Defendant had given them his attention, as he agreed to do. But he did not, and even in a lawsuit did not. The only person that the Defendant thought deserved attention was himself.  Does he even think you deserve his attention…”

Save the clever arguments for your lawyer and cocktail parties. Just listen to the question; answer the question; and let your lawyer object if it is irrelevant.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

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Servicemembers Civil Relief Act

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The “Servicemembers Civil Relief Act” (SCRA) was enacted in 2003. This law is the latest in a series of statutory protections dating back to the Civil War for active service members, including the predecessor statute the Soldiers’ and Sailors’ Civil Relief Act. The SCRA provides protection to servicemembers regarding residential leases, automobile leases, installment contracts, interest rates, court proceedings, and some tax protections.

Residential Leases

If a servicemember is a named party on a residential lease, the SCRA allows him to terminate it for entering active duty, or he receives orders for a permanent change of station or to deploy for a period of not less than 90 days. In order to take advantage of these protections, the servicemember has to make a written request with a copy of their orders. The lease will then be terminated 30 days after the date on which the next regularly scheduled payment is due. Like most contracts the statutory mandate is the minimum required. Particularly in areas with a large military presence, there may be additional protections that are provided in your lease.  

In addition, the servicemember can be protected from evictions from a residence occupied by the servicemember or dependants for which the monthly rent does not exceed a certain amount. If the court determines that the servicemember or dependents are unable to pay their rent on time as a direct result of the servicemember’s military duties, they may order that the eviction be postponed for up to three months.

Automobile Leases

A new provision similar to the protection for residential leases allows the termination of automobile leases for use by servicemembers and their dependents. Automobile leases may be cancelled if the servicemember receives orders to active duty for a period of 180 days or more or permanent change of station orders outside the continental US. The servicemember is responsible for title, tags, excess wear and mileage, but cannot be charges with an early termination fee.

Interest Rates

If a servicemember has debts that were incurred prior to entering military service, and if the her  military service has directly affected her  ability to pay those debts, the servicemember can have the interest rate capped at six percent (6%) for the duration of her military service. The service member must request this reduction in writing and include a copy of her orders. Note that the language of the statute specifies that the excess interest is forgiven and not just deferred to be collected at a later time.

Court Proceedings

Where I generally have run into this act, is the provision regarding court proceedings. If a servicemember is a defendant in a civil proceeding, the servicemember may ask for a postponement if he submits a statement along with a statement from his commanding officer explaining how their current duty requirements prevent them from appearing. The SCRA also would allow a court to reopen a default judgment entered against the servicemember if it is clear that the servicemember was unable to defend themselves due to their military service and they have a legal defense to the action. The new statute also extends this protection to administrative hearings.

Taxes

The SCRA also has a provision that would prevent states from increasing the tax bracket of a nonmilitary spouse who earned income in the state by adding in the service member’s military income for the limited purpose of determining the nonmilitary spouse’s tax bracket. This practice has had the effect of increasing the military family’s tax burden.

Happy Veteran's Day.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

Spys Like Us

COVERT COMMUNICATIONS—When is it “OK” to record a conversation with my spouse or my chidren in the context of a contested divorce case?

    The two most frequent areas where electronic surveillance is used in litigation arise in the context of commercial espionage, and in domestic litigation. As formerly “high tech” surveillance technology is now available at a relatively low cost to anyone with an internet connection and a credit card, the issue of whether, and how, my clients may record and document conversations with their spouses or children has become a regular part of my practice. It is an important area to address at the outset of litigation, because the laws regarding privacy and surveillance are complex , vary from state to state,  and can result in civil and criminal penalties for violations. This means that if your spouse moves with your minor children across state lines, you may be invoking the laws of a foreign jurisdiction or the federal government if you initiate surveillance or attempt to record a conversation with him or her.  Not only could you subject yourself to civil and criminal penalties, but you could make otherwise valuable evidence inadmissible at a future hearing in your divorce proceedings.

The Law…

    The Electronic Communications Privacy Act and the Stored Wire and Electronic Communications Act, commonly grouped together as the Electronic Communications Privacy Act, or ECPA, comprise the set of federal laws which prohibit both private citizens and law enforcement from engaging in certain types of electronic eavesdropping. Congress passed the ECPA in 1986 to update the Federal Wiretap Act of 1968, which attempted to protect citizens’ privacy by proscribing the use of recording devices in the use of telephone lines. As with most things, technology evolved beyond the scope the original lawmakers could have foreseen. In 1968, no one envisioned the widespread use of cellular phones, text messaging, or the internet. Since the ECPA was enacted in 1986, it has also been updated to reflect new developments in the realm of communication technology. North Carolina has adopted laws which closely mirror the Federal Act, codified at Article 16 of Chapter 15A of the General Statutes under “Electronic Surveillance.”

    Both the ECPA and the North Carolina Electronic Surveillance Act (ESA) create civil and criminal penalties for anyone who intentionally intercepts, uses or discloses any wire or oral communication by using any electronic, mechanical, or other device. The statute defines “interception” as the “aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” The Act likewise bans unauthorized access to wire or electronic communication in storage, which is defined as “any temporary, immediate storage of a wire or electronic communication.”  

    So, when may I record a conversation with my spouse?

    In North Carolina, telephone and oral communications may only be recorded if one of the parties to the communication is aware of and has consented to its being recorded. This means that you may record your own phone calls or conversations, but you may not record conversations between your spouse and a third party if neither knows the conversation is being taped. You may also not set up recording equipment your home or car to capture all conversations and activities taking place in those locations. At present, you may install video monitoring equipment, however the same may not have an audio component.  Also, you should be aware that if you are recording a conversation with a party in another state, the state with the more stringent laws will apply. This means that if you are in North Carolina, which is a one-party consent state, and the person you intend to record is in California, which requires the consent of all parties to the conversation, the California law would govern.

    May I record conversations with my children?

    You may record conversations that you have with your children, because you are a participant in those communications. Ordinarily, federal and state privacy laws would prohibit any recordings between your children and a third party, without the consent of that party (your children are minors and therefore cannot consent to the recording). However, in certain limited circumstances, where you can demonstrate a good faith, reasonable belief that your spouse or another individual is having communications with your children which are contrary to their best interests, you may record such conversations. This is called the vicarious consent doctrine. As a parent, you are vicariously consenting to the recording on your child’s behalf. As this standard is not easily identified, however, is it always best to speak with an attorney prior to recording such conversations so as to avoid potentially violating the law.

    I know my spouse’s passwords, may I access his or her e-mail or Facebook account to retrieve a document or to see what he or she has been doing since we separated?

    Both the Federal and North Carolina Acts prohibit the intentional, unauthorized access of another person’s electronic storage. This would include e-mail and social media accounts, and any other accounts which require a password for entry. If your spouse gave you his or her password and authorized you to retrieve a document, you may do so. However, you may not exceed this authority to scope through all of the messages, hoping to find something juicy to use in your case. You may also not go into your spouse’s accounts merely because you knew or could ascertain the password. To do so would violate the law and potentially make any document you retrieve inadmissible in your divorce trial.

--Jennifer Bennett joined Hodges & Coxe PC as an associate attorney in 2010 and currently practices in the areas of general civil litigation and matrimonial law, focusing on divorce, child custody disputes, establishment and defense of child and spousal support obligations, equitable distribution and marital tort claims. You can reach her at (910) 772-1678

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

HIPAA

With our increasingly interconnected world and the rise of identity theft and other similar invasions of privacy, more and more laws and regulations are being enacted to bolster traditional common law and wall off private information from the public. One such body of law is contained in The Health Insurance Portability and Accountability Act. More commonly known as “HIPAA,” this law was passed by Congress in 1996 to set a national standard for electronic transfers of health data. At the same time, Congress saw the need to address growing public concern about privacy and security of personal health data. The task of writing rules on privacy eventually fell to the U.S. Department of Health and Human Services (HHS). After several modifications, DHHS issued the HIPAA Privacy Rule.

HIPAA set a national standard for the privacy of medical records. A state can enact greater privacy rights, but HIPAA sets the minimum that must be followed. Under HIPAA, the patient has a right to their medical records, although the provider can bill for the cost of copying them.

When you first go to a doctor or other medical provider, they should provide you with a notice of privacy practices that give you more information about how your medical information is shared. Including in that is your right to an accounting of disclosure of your health information, how to file a complaint, and how to ask for special confidential communications (for example telephone calls to your home rather than work for communications regarding your health care and treatment).

Exceptions to the protection of HIPAA are information used for your treatment, drug companies who are issuing recalls or warnings of medications, business associates (for example, if your doctor provides your information to an account for medical billing purposes) The health care provider is supposed to have a contract that ensures that the business associate properly handle the information, but is not required to check and supervise.

The patient can also authorize the health care provider release the information to a third-party. I usually run into this exception when dealing with personal injury and medical malpractice lawsuits. Most people understand that if they are trying to recover for medical bills and injury, they have to show their medical records and bills to the jury. However, the plaintiff is required to turn over medical information before a trial to a defendant if he asks for it in discovery, even for past medical records, if it could possibly lead to discoverable evidence. One common defense is that the injury the plaintiff complains of did not occur due to the defendant’s negligence, but rather, due to a pre-existing condition. Therefore, evidence of a plaintiff’s pre-existing medical condition, including her past medical records, is discoverable. This is thought of as a voluntary disclosure since a plaintiff is not required to file a lawsuit.

If a medical provider releases your information in violation of HIPAA, you can not file a lawsuit. There is no “private right of action” with HIPAA. What you can do, is first complain to the medical provider’s privacy officer. If you are not satisfied, you can file a complaint with the U.S. Department of Health and Human Services. You have 180 days to file such a complaint although the HHS can extend it at need. The HHS can levy fines against the health care provider, but you won’t get the money like you would in a private right of action lawsuit.

While some states may have additional privacy rights that would be actionable in a civil lawsuit (and therefore an aggrieved plaintiff could recover damages), North Carolina is not one of them. However, in North Carolina, a HIPAA violation can be used as the basis for the tort of Negligent Infliction of Emotional Distress. This means that the plaintiff can file a suit and recover damages. However, an NIED suit would have to show more than just a violation of HIPAA. The plaintiff would have to show “severe emotional distress” which North Carolina courts have held to be a diagnosable condition. If the disclosure of your private health records didn’t cause you to have psychiatric or other counseling, then you probably won’t have a case. In addition, the suit would fall under the more strict medical malpractice rules so there will be additional hoops to jump through, including finding an expert in the same specialty to testify as to why the HIPAA violation was a breach of the standard of care.  

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

Wrongful Cutting of Timber

North Carolina is the Tar Heel State and the nickname of the University of North Carolina is the Tar Heels. While there are several interesting origins of the name, one underlying common element is the importance of pine tar in the state. Tar and timber in the state were important industries, especially in the 18th and 19th century.

Legally then, the state legislature took special steps to protect landowners from theft of their timber. Modifying the traditional common law rule of trespass, North Carolina has a special statute N.C.G.S. Sec. 1-539.1 that governs timber cutting. When a person cuts somebody else’s timber, he is entitled to double damages. It’s not a defense that the party doing the cutting doesn’t know it is somebody else’s property or has a reasonable belief that he has permission. I’ve had cases where a timber cutting company contracted with a person who showed them a map and a deed of the property, only later to find out that somebody else actually owned the property. While they did have an action against the person who misrepresented the ownership of the property, they were still on the hook against the actual landowner.

The damages are doubled, but the damages are calculated by the value of the timber at the stump, or the stumpage value. Essentially that means the value of the timber after reasonable costs are deducted for the logger, truck driver, and the mill. Essentially this is the net profit of the timber “crop” rather than the gross.

Even so, if you have several acres of timber that were clear cut by a timber company, you could have significant damages. In recent years however, as North Carolina has become more and more urban, and suburban, the more typical timber cutting case is the neighbor who cuts down your favorite shade trees on your property. Even doubled, the timber value of some shade trees on your property may not reach $100. In those cases, there is an alternative measure of damages that could be used.

The alternative damage would be the traditional damages for any trespass or damage to real property. That is the difference between the market value of the property with the trees and without the trees. This type of damage may be more difficult to quantify than a count of stumps and a check on mill prices, but if it can be done, it may yield greater damage than the stump value. This type of damage however is not doubled by the statute.

One measure of damages that can not be used is the replacement cost. The replacement cost would be how much you would have to pay an arborist to replant a tree of the same type and age. For mature trees this would be far more than the value of the tree as timber and very well could be far more than the difference in market value. The replacement cost can be used as some evidence of the difference in market value, but in and of itself, it is not a measure of damages.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

Med-Pay

One insurance benefit that many automobile accident victims do not know about, and subsequently lose thousands of dollars is commonly known as “Med-Pay.” Med-Pay is a  medical payment provision written into most liability insurance policies.

Med-Pay coverage provides medical expense payment incurred as a result of injuries sustained by any person riding in the car which is covered by Med-Pay insurance, whether or not the injured person is an owner or not.  Med-Pay is not unlimited, the limit of most Mid-Pay policies in North Carolina tends to be one to two thousand dollars. Five thousand dollar limits seem to be the most common.

Med Pay insurance is “no-fault” meaning it is payable regardless of who caused the accident. However, if you do have a claim against an at-fault driver, you will be able to claim all your medical bills, and not have to pay back the Med-Pay insurance company. . In addition, Med-Pay coverage will not be reduced because your health insurance policy  paid some, or all, of your bills

If you are injured while riding in a car owned by another person who does not have Med-Pay insurance, then you may collect on your own Med-Pay insurance which covers any car that you own.

It is normally easy to collect a Med-Pay claim. All that is usually necessary is for you to send a copy of the accident report and a copy of your medical bills to the insurance company. You usually will not need a lawyer to help you with this claim.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

Depositions

I’ve written before about the life of a lawsuit and how long stretches of time appear with nothing seeming to happen. As I said before, some of that is waiting on reactions from the other side and some of it is work done by the attorney that doesn’t require much from the client, especially if your attorney has done his work well early in the representation in getting information from you about your case.

One of the “hot” periods for a client after the Complaint has been filed is his deposition. In general, depositions are an oral question and answer period between an attorney and the person being deposed. Depositions are part of “discovery” (with one exception I’ll talk about below) which also includes Interrogatories (answers to written questions) and Requests to Produce Documents. Depositions can be taken of anyone involved in the case, witnesses, experts, or parties. The rules are the same although the reasons for the deposition may be different.

Under the North Carolina Rules of Civil Procedure, the party being deposed or their attorney simply has to receive ten days written notice of when and where. A non-party witness may also require a subpoena from the court. In practice, attorneys and the witnesses try to agree on a time and place that is most convenient for everyone.

A deposition does not have to be, and most of the time isn’t, held in a courtroom. Usually the deposition is held in an attorney’s office, most frequently in the office of the lawyer who is representing the party being deposed. This is not a requirement and I’ve done depositions in hotel rooms, airport lounges, doctor’s offices, around kitchen tables, and a barge in the middle of the Cape Fear River outside of Wilmington. What is required is a court reporter. She takes down all the questions and all the answers and about two weeks after the deposition, provides transcripts to all involved. Other than the party being deposed, the attorney who asked for the deposition, other attorneys involved in the case, and the attorney representing the deponent, no other persons must be present. However, occasionally other people interested in the proceedings may sit in, such as spouses or expert witnesses. Strictly speaking, no one can be excluded unless one of the attorneys makes a motion before the court for a protective order. Practically speaking, if there is a legitimate reason, (such as trying to see if two witnesses’ stories match up) the attorneys will oftentimes agree.

Depositions of parties or retained expert witnesses are usually the only way an opposing attorney can have any direct contact with that person before trial, so the main purpose of most depositions is for the opposing attorney to simply learn more about the other side’s case. As the attorney learns about the case, he can also “lock in” the person’s story. For if the person were to say something different at trial, the Rules of Evidence would allow the attorney to bring out the transcript and point out that they said something different before. The implied question is “are you lying now or were you lying then?”

If you are the one being deposed, your attorney should prepare you for the process ahead of time. In the deposition itself however, your attorney may seldom ask questions or make objections during your deposition. After all, he is under no restriction from talking to you, and any questions he asks will only help the other side. Only when he thinks that you have misunderstood a question or answered something clearly incorrectly, will he ask a few direct questions to clear up the issues. He also may make few objections during the deposition. Unlike a trial, there is neither a jury nor judge in a deposition, so there is no one to rule on an objection; and no one that the possible improper question would influence. For that reason, the rules allow a broad scope in a deposition. There are usually only two deposition objections. The first is an objection for privileged information:  what you and your attorney talked about. The opposing attorney is allowed to ask about how often you met, how long you met, when you first and last met, but not what you talked about. Your attorney will object and instruct you not to answer. The second common deposition question is an objection to form. Pay attention to these objections because your attorney is telling you that the question is confusing. Common improper form questions would be compound questions:  “When did you leave, what time did you get there and when did you leave again?” Another would be an unfair question that gets you to admit to something untrue, the classic being “When did you stop beating your wife?” Feel free to ask the opposing attorney to restate the question if you don’t think you understand it. Limit your answers to the questions asked with little elaboration. Your attorney will prepare you for the important points for your case and you’ll know when to elaborate, and he can ask on cross examination for any further elaboration that is needed.

While they are under oath, depositions are more informal for a trial and you can request breaks. If you get tired or feel bad, let your attorney know. You do not want to answer questions if you are not able to focus on your responses.

As stated above, a court reporter is present to document the questions and answers for a transcript. For this reason, do not respond with ‘Uh-huh” and “Uh-uhs” or head nods for a “yes” or “no.” Also wait until the attorney completes his question before giving your answer, and he should wait for your answer to ask his next question.

Depositions can take 30 minutes or 3 days, but mostly wrap up between two and four hours. Just know your case, answer the questions that are asked, tell the truth, and everything should work out fine.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Upon Further Review

We are getting into the crunch-time of the NFL Season, and as the games get bigger and bigger, each play, and each official's call is magnified in importance. Even the most casual fan at this point has heard of "instant replay" where the officials review and sometimes overturn a call on the field. Coach's have a limited number of these challenges and you can't challenge the challenge. If you don't know what the officials need to see when they are reviewing a call, the announcer will eventually let you know that the referee must see "incontrovertible visual evidence" to overturn the call.

Essentially then, if you are a football fan, you have some understanding of how a legal appeal works,as both are review systems to catch errors made by the neutral arbitrators of the rules. The practice of only overturning a call on the field due to "incontrovertible visual evidence" is what a court would call a "heightened standard of review." A legal appeal uses a heightened standard of appeal when considering a ruling by a trial court judge on most of his trial rulings when he is applying his knowledge of the facts of that case to the law of the case. The appeals court will only overturn a trial judge in such judgment calls if it is an "abuse of discretion." In both systems, even if the reviewing official/appellate justice thinks the ruling "on the field" was incorrect, he won't overturn it unless it rises to that "heightened standard of review." Some of the reasoning is the same. The official or trial judge is in the heat and flow of the game or trial as a whole, and, while their decisions have to be made in a split second, they often have a better vantage point or understanding of the trial. Also, practically, a balance has to be made between getting every minor ruling correct, and efficiency. A justice system or a football game that constantly grinds to a halt due to reviews of the rulings becomes so lengthy that it becomes worthless.

Some legal issues are issues of law where the appeals court can rule de novo, where it rules as if it is first deciding the issue. In that case, the appeals court doesn't have a heightened review, but can overturn if it simply finds the court was incorrect. The NFL doesn't officially have this, but I've seen officials call a penalty incorrectly on one player, consult with the other officials, and then call it on the correct player. Essentially, the officials are using a regular standard of review to overturn their own call.  

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Are We There Yet?

 Just recently the family and I loaded up the Family Truckster and headed north past Richmond, Washington (which some in my family refer to as "Occupied Virginia"), Philadelphia, New York, and finally to Old Lyme, Connecticut to visit for a few weeks, members of my wife's family. From the time we left my driveway to 14 hours later, I heard the phrase every time I tapped the break, "Are we there yet?" How do they know this phrase, I think? I never taught it to them, and it is one of the biggest kid cliches out there, yet it always happens.

In a similar vein, although without the whining, one of the first thing clients, and particularly personal injury clients ask is "How long will this take?" Unfortunately, I can give the kids in the Truckster a more definite answer (and a juice box) than I can my clients. For the personal injury and car accident cases, after you get accident reports and do a scene investigation, the hold up is medical rather than legal. The client has to get to a point in her medical treatment that she has gotten better, or her doctors are reasonably certain she is as good as she will get. The reason is that before you start filing a lawsuit, you want to try and settle with the insurance company. They are not going to give any money based on what you "think" will happen or what "might" happen, they need to at least know you have enough evidence to get to a jury trial. When you do settle, you can't go back later. So if you accept a settlement from an insurance company and a month later your doctor tells you you need surgery, you can't go back. (This is another reason why personal injury attorneys warn injured people not to settle right away with an insurance company, even if they want to just "get it over with.").

So that process may take a few weeks or a few months, it just depends. Then, after you get the report that the client has reached maximum medical improvement, you have to order the medical records. This can take awhile, and usually I'll have to make multiple requests before the creaky bureaucracy of a hospital or a slammed office manager of a family physician can get me my request. Expect a delay of at least 30-60 days for the records.

After that, you make a demand, and it will take another month before you get to a settlement with the insurance company or decide to file a lawsuit. (that's assuming they don't ask for additional medical records that you don't have). When you file a lawsuit, there is a flurry of activity getting the Complaint prepared and then you wait for the Defendant to answer. In North Carolina, the Defendant has 30 days, but count on 60 because they always get an extension to answer. You'll again have long stretches where it seems nothing happens along with spikes of activity--answering discovery, the client's deposition, perhaps a motion for Summary Judgment. Until finally, a jury trial. I usually tell my clients that in the areas I practice, count on roughly a year from the date of filing the Complaint, to a jury verdict. In the rare cases where there is an appeal, that could drag on another six months to a year.

One thing I do try to remember is that while I know what needs to be done right away, what can wait, and when a case is "moving" or "stalled." My clients don't have that knowledge. Also, while I have a lot of cases, each of my clients only has one. They want to be assured that I am actually working on their case as quickly as I can, and very few clients are unreasonably demanding of my time. The best thing that works for me is to let them know when something is going on, and, more importantly when something isn't going on and I'm waiting for medical records or discovery or an Answer. The second best thing is actually take their phone calls. A five minute conversation about the only case they have is something each client deserves, even if it does sometimes feel like you are answering "Are we there yet?"

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

What to Wear

I'm getting ready for a jury trial next week, and one of the pre-trial steps I take is getting the client prepared. You'd think that this would primarily be going over the facts of her case and the strategy involved, and you'd be right, but one aspect of that is her presentation in front of the court and the jury. Other clients have told me how everybody they know thinks they are honest and likeable and salt of the earth and they may be right. I tell them that one of the few things I'm sure of in a jury trial here is that none of those people will be on the jury. The jury will meet them for the first and last time in court so they have to convey those things that all their friends already know, in a short and limiting environment. One of the ways that a client can make a good impression is simply by what they wear.

My client in my trial next week was a little concerned. She is a horse trainer, and her idea of dressing up is usually her best pair of jeans. I used to tell clients to dress like they were going to church, until I had one client in a car accident trial show up in a three-piece suit, looking better than I was! I quickly had him lose the vest and coat. I didn't want the jury confused as to who was the lawyer and who was the client. So now I tell them to dress a level or half-level down from my suit. For men that usually means long pants and a collared shirt. I don't have anything more specific to tell my female clients, but they usually can get the idea.

The key in my opinion is to treat court with respect. Jurors are usually not crazy about taking time out of their lives for this civic duty, they at least want the participants to act like it is serious business and they are grateful for the opportunity to have their case heard. Dressing for respect goes not only for my clients, but for anytime you are heading to court, even if you are heading to the courthouse to see about a traffic ticket. Don't wear a hat; don't wear flip-flops; don't wear a T-shirt (especially with curse words printed on it); don't wear a tube top; the judge will not be impressed by the tattoo at your panty line. Most judges will try to be fair but if you dress like you don't respect who they are, and what the court is, you are starting the game already behind.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

There is a Lawyer in My Mailbox!

If you have ever been in a car accident in North Carolina, you may have been shocked at the amount of mail you suddenly get. One of my clients recently got into an accident and brought into my office stacks of letters and documents from attorneys, some hundreds of miles away, asking to represent her in her personal injury lawsuit. Other than a few chiropractor letters for accidents, or mortgage refinancing letters every time you buy some property, I don’t know of any other business or profession that relies on this type of targeted direct mail.

These attorneys (and chiropractors) are able to do this because accident reports are public records. In years past, attorneys or sometimes a paid third-party service would hang by the courthouse or police station getting copies of the accident reports as they came in. Thanks to the Internet, it is even easier now with the reports readily available. In my hometown of Wilmington, the reports are available here. Accident report in hand, the lawyer or his staff can send out the canned letter or package to arrive at your door almost before you get home from the Emergency Room. This practice may get a bit harder soon as there is a new bill in the NC House that would allow a person in a accident to opt out of receiving any solicitation from that report.

One reason why lawyers use this type of direct mail solicitation is because the North Carolina State Bar, the organization that regulates the profession, has strict rules about an attorney communicating his services to a non-client. The Bar is concerned about maintaining the professionalism of attorneys, especially in today’s climate and stereotypes of the “ambulance chasing” lawyer. However, the Bar can’t totally ban all types of advertising because the U.S. Supreme Court has ruled that would violate the 1^st Amendment and Free Speech. That is why lawyers are, with some parameters, able to advertise on TV, radio, billboards, and other places. Even more restrictive is direct solicitation where an individual is targeted for the lawyer’s services as opposed to a TV ad that is aimed at anybody who tunes in. Most direct solicitation of non-clients of lawyers is prohibited by the Bar, with the exception of the direct mail. Since direct phone calls, door-to-door, emails, and other direct solicitation is out, direct mail is the only route available. Even that is restricted; you’ll notice the big disclaimer on all that correspondence saying “THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES.”

While I assume that these direct mail advertisements are effective for the lawyers who take advantage of them in finding good clients, are they effective for the potential client to find a good lawyer? Those ads are certainly a good starting place, just like yellow page ads, or legal websites, but don’t solely rely on them to choose your attorney.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

UPDATED: The $10,000 Question

I was reading in the local newspaper about a lawsuit recently filed. It was a slow news day, and this particular suit had an interesting twist on a regular car accident case, so somebody thought it might make a good story. The reporter was fairly accurate, especially when she couldn't get either side to talk, but one "fact" that she reported was wildly inaccurate, but she had no idea why. She reported that the amount of relief the injured person was seeking was $10,000. I know exactly where she got that information; she went to the courthouse and pulled the Complaint. Nothing wrong with that, its a public record. The facts were laid out nicely for her and she reported those correctly as facts, but at the end of the Complaint she got in trouble. She read in what is called the "prayer for relief" that the Plaintiff was seeking a judgment in excess of $10,000. 

Now that attorney did not put in $10,000 because that is what he wanted, or what he thought the case was worth, or what he thought the other side would give him. Strangely enough, usually what you can ask for a trial, or what the jury can give you, has nothing to do with anything you ask for in the Complaint. In fact, some types of cases, negligence and punitive damages, do not allow the Plaintiff to put in an amount, only if it is more or less than $10,000. Even when it is not required, the instinct of an attorney is not to give away free information on what he thinks the value of his case is, especially as it may change as the lawsuit progresses. In addition, the Complaint is usually not even allowed to be read to a jury. The reason for the $10,000 figure is to determine which North Carolina court your civil suit goes.

North Carolina Courts start with Magistrate Court. After that, the main trial courts are the District Court and Superior Court. These are the courts where cases are actually tried with a jury or judge making a decision on the facts in the case. Beyond the trial courts are the appellate courts, the North Carolina Court of Appeals and the North Carolina Supreme Court. Those courts only decide cases that come up on appeal for errors of law.

District Court and Superior Court, on the civil side (as opposed to criminal cases) split their cases based on the amount in controversy. Anyone claiming an amount for $10,000 or less is tried in the District Court, and anything over $10,000 is tried in the Superior Court. Unlike Magistrate Court, whose judges  can't award anything over $5000, a jury or judge in District Court can award more than their "limit" of $10,000 if they find the facts and evidence support it, and the Superior Court can award less.

So the next time you read that somebody is asking for "more than $10,000," you'll know what you don't know--how much they really want or will get. 

UPDATE:  As of August 1, 2013, the jurisdictional amounts for small claims court will be at $10,000, District Court at $25,000, and Superior Court for anything greater than $25,000.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

If a Tree Falls and Nobody Hears it...Do You Have a Lawsuit?

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Hurricane season officially began on June 1.  Around here, we have had a little bit of experience in the Hurricane department, so when we see the Weather Channel hanging around, we know to get to the store, stock up on bottled water, propane and Spam and hunker down for a good named storm.  After it is over, everybody heads blinking into their yard checking out the damage and swapping tall tales of much bigger storms with their neighbors.  The situation happens fairly frequently that a tree on one property has fallen and damaged a house or fence on another property, or sometimes caused someone personal injury.  Who is responsible?  First, most people have homeowner's insurance and if your house or even your car gets hit with the neighbor's formerly prized pecan tree, your insurance will usually pick up the tab.  It may be a good idea as part of your hurricane season checklist to review your homeowner's policy and check for what exactly your coverage is for trees and other things, and what amount of a deductible you will pay. 

Second, forgetting about insurance, in North Carolina, your neighbor generally has no duty to pay your damage, even if it was his tree that hit your house.  After all, he didn't knock it down onto your property, it was an "Act of God," and He is beyond the subpoena power of the North Carolina Courts.  However, you may have a case against that neighbor in negligence if he knows that the tree is unhealthy or diseased or otherwise fails to maintain the tree. 

Where there is negligence, there is usually a defense of contributory negligence.  So if you asked your neighbor if you could remove the diseased tree and he agreed, but you failed to do so before the storm knocked it on your roof, the neighbor would have the defense of contributory negligence.  Other jurisdictions have considered it contributory negligence for failing to prune a diseased limb that hung over your property line. 

If there is a case against your neighbor, and you are covered by insurance, usually your insurance company will pay you and then may maintain an action against the neighbor to get their money back.  If that happens, talk to the attorney for your insurance company.  Sometimes you can ride his coattails and recover your deductible as well. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

Lien on Me

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There are several different types of liens in the law.  Generally, a lien is the right that is created by law, or sometimes by express contract, to retain lawful possession of property of another under that person fulfills a legal duty to the person holding the lien.  A mortgage on your house is one kind of lien. 

A mechanic’s lien, also called a contractor’s lien or materialman’s lien, is a particular type of lien that allows a person who furnishes materials or work to the construction of a building or other large project to have a lien on the building or on funds for the building.  In North Carolina, these liens are set forth in Chapter 44A of the North Carolina General Statutes.  In North Carolina, there are actually two different broad types of mechanic’s liens.  The first is a property lien and the second is a lien on funds.  The property lien can arise when the owner of the land is the one who owes the money.  For example, a general contractor is hired and signs a contract to build a house.  The homeowner then doesn’t pay.  The general contractor can then put a mechanic's lien on the house.  To do this, he files a notice with his name and the owner’s name, the property address, the work he did, the money owed, and the date of the last work done.  This notice must be filed within 120 days of the work, or the lien right is gone.  After the lien is filed, it is extinguished unless the builder were to file a lawsuit to enforce the lien within 180 days from the last work done.  The effect of the lien is that the homeowner would have to satisfy the lien before he could sell or convey the building.  Even if the homeowner disputes the amount owed, the lien still remains until the matter is resolved by the courts.  If the homeowner needs to sell the property prior to that, he can deposit the amount of the lien with the clerk of court who will hold the money pending a resolution.  That way, the builder is assured of there being money to pay him if he is correct.  

The second type of mechanic’s lien is the lien on funds.  This lien arises when the person who is supposed to pay for the work, and the owner of the property are different.  For example, a subcontractor is hired by the general contractor who is in turn hired by the homeowner.  The subcontractor doesn’t have a contract with the homeowner; the general contractor was the one who was supposed to pay him, so the subcontractor can’t attach a lien to the actual property.  What he does is to make a claim of lien on funds.  The time periods and deadlines are the same, but rather than put a claim on the property, what he is doing is giving notice to the homeowner not to pay the general contractor. That money is what the lien is on, not the property.  Only if the homeowner gets notice of the lien and pays anyway, or the general contractor has his own lien against the property that the lienholder can piggyback on, can the subcontractor put a lien on the property.  If the homeowner has paid the contractor all that he is entitled to, and he hasn’t paid the subcontractors, there is no restriction against the homeowner in selling the property.

Even without a lien, a claim for breach of contract arises, so that a general contractor can get a judgment from a court for money either way.  However, all that a judgment gives you is a chance to collect.  With a valid lien, the general contractor can preserve what assets there are, and get a priority over them, which gives the lienholder a much better chance of actually getting paid. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

I ran out of gas. I had a flat tire. I didn't have enough money for cab fare. My tux didn't come back from the cleaners. An old friend came in from out of town. Someone stole my car. An earthquake. A terrible flood. Locusts. IT WASN'T MY FAULT!

The North Carolina Legislature is set to debate a new bill to end contributory negligence and adopt the Uniform Apportionment of Tort Responsibility Act   This is a pretty big deal in North Carolina and will impact a lot of people in years and decades to come and its flying under the radar of most people.  What the bill does is modify the rule of Contributory Negligence.

Contributory Negligence is a defense in a negligence action.  The basic idea is that if it is somebody else’s fault you are hurt; you can recover from that person. To get a little more in depth, Negligence refers to a person's failure to follow a duty of conduct imposed by law. Every person is under a duty to use ordinary care to protect himself and others from injury. Ordinary care means that degree of care which a reasonable and prudent person would use under the same or similar circumstances to protect himself and others from injury.  A person's failure to use ordinary care is negligence.  For example, if you are driving a car down Michigan Ave. at 100mph you were not exercising ordinary care and were negligent.  If you hit somebody because of that, they would have a negligence action against you.

Contributory negligence is the defense that says that if the person hurt was also at fault, she can’t recover.  So if you are speeding and hit somebody who was looking down trying to find a radio station and therefore didn’t see you in time to avoid the accident, you could argue they were also at fault and guilty of contributory negligence and if the jury so found, the person you hit wouldn’t recover anything. 

Defense attorneys, and I’ve been one, therefore could argue before a jury that if the Plaintiff (the injured party and the one bringing the action) was only one percent at fault, and the Defendant (the one answering for the action) was ninety-nine percent at fault, the Plaintiff couldn’t recover.  This sounds harsh and there have been a few work-arounds in North Carolina law that have sprung up over the years to alleviate it somewhat.  In addition, I know that (despite clear instructions from judges NOT to do this) juries will sometime do some deal making when they are trying to reach a unanimous decision, with the pro-Defense jurors voting for liability if the damages are kept down. 

All but four states, North Carolina being one, have gone away from the strict contributory negligence in favor of a modified version, also called “comparative negligence.”  This is what the new bill being debated will do if passed.  Basically, as long as the Plaintiff is less than 50% at fault, she can still recover, with the amount of her recovery lessened by the percentage she is found at fault.  So if a Plaintiff is found one percent at fault, and the jury finds her damages to be $10,000, she still gets $9,900.  Under the current law, she would get $0.  So that is a pretty big change in the way the law has been in North Carolina since Raleigh was a person and not a place.  

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

Smile

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The Raleigh News and Observer has reported a “man bites dog” story.  A dental patient is complaining that her dentist told her she needed an expensive dental treatment that a later dentist said was unnecessary.  However, it is not the patient suing the dentist, but rather the dentist suing the patient.  The patient made a complaint both with the N.C. Dental Society and the N.C. State Board of Medical Examiners, as well as making complaints in an earlier Troubleshooters column with the newspaper.  About one week later, she found herself the Defendant in a defamation lawsuit.

A legal case for defamation requires a statement (in writing for libel, orally for slander), that is false, and that is communicated to a third party causing damage.  For private persons, it is enough to show that the person making the false statement failed to use ordinary care to determine if the statement was true.  Public persons, such as politicians, must show that the person knew the statement was false or had serious doubts that the statement was true.  Depending on the type of statement, the impact it caused, and the level of intent or maliciousness of the defamer, the person being defamed can recover nominal damages ($1), actual damages (for example, the dentist has alleged that other patients have canceled appointments because of the statements made), and punitive or punishment damages.

While the dentist has as much right as anybody to protect himself legally against false and malicious statements that injure his business, the timing of his suit seems somewhat suspect.  By filing the suit before the patient's complaints were considered by the Dental Board, it looks as though he is trying to  gain leverage over this patient, who may or may not be able to afford legal counsel, to get her to drop the complaints.  He may be particularly concerned as the Dental Board seems to be a bit more aggressive in governing their members than the Medical Board. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.