Husband and Wife (Homeowners) had ente
The Court
The
Husband and Wife (Homeowners) had ente
The Court
The
Posted at 10:04 PM | Permalink | TrackBack (0)
North Carolina is one of the few states that still allow what is termed “heart balm” statutes, such as the claims of Alienations of Affections and Criminal Conversation. Both of these claims can be asserted by a spouse against at third party (i.e. boyfriend/girlfriend) who has had a “
However, the Generally Assembly just passed a statute which limited the scope with which a hurt spouse can
Posted at 09:59 PM | Permalink | TrackBack (0)
The North Carolina Sup
However, in 2004, our state legislators passed amended N.C. Gen. Stat. s. 14-415.1 which prohibited the possession of a fi
After Mr. Britt learned of the amended law, he voluntarily sur
Posted at 09:55 PM | Permalink | TrackBack (0)
In State v. Morton, the Court of Appeals
The detectives in the investigation
Since the officers knew the Defendant, had spoken with him on p
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The State Tort Claims Act (STCA) is a statute that has exp
However, over the years, the government has been able to raise the defense under a theory of the “Public Duty Doctrine” which stands for the proposition that if the government is involved in a act that is
The General Assembly
In the
See Stone v. NC Dept of Transportation, 347 NC 473, Melville v. NC Dept of Transportation, Phillips v. NC Dept of Transportation.
Posted at 09:51 PM | Permalink | TrackBack (0)
In Estate of Vera Hewett v.
The homeowners sued the County for damages
The Court of Appeals sided with the County finding that the County was immune from a lawsuit, and the
Posted at 09:47 PM | Permalink | TrackBack (0)
The U.S. Supreme Court ruled in Melendez-Diaz, that a forensic lab report could not be used against a criminal defendant unless the analyst that prepared the report also testified and was subject to cross examination. The Court essentially reaffirmed the principal from Crawford v. Washington, 541 U.S. 36 (2004), which held that evidence, such as affidavits, was "testimonial" in nature, and that a defendant has the right to cross-examine the maker at trial.
After the "Crawford" decision was handed down, the N.C. General Assembly passed what has been termed the "Anti-Crawford" statute, N.C. Gen. Stat. s 20-139.1. Under the current version, a sworn officer's or chemical analyst's documentation regarding a defendant's alleged blood alcohol concentration (BAC), was automatically admissible into evidence, even if the preparer was not in court. This hinders an ability to defend a client because there was no way to verify that the document submitted to the court was the actual one prepared for this client, and there is no way to cross examine the officer/analyst on the techniques used to ensure that the proper procedures were followed.
The statute did allow for the defendant to subpoena the analyst, but defense attorneys have to jump through several hoops to get them in court. The Melendez-Diaz decision (although it arose of of New Jersey), has already started having an impact in North Carolina. The General Assembly is currently in the process of revising the statute to require the "prosecutor" to give the defendant notice that they intend to use a document, and if the defendant objects, then the officer or chemical analyst must be brought to court by the State. This shifts the burden to the prosecutor to prove their case, rather than the defendant trying to disprove the State's.
Posted at 04:16 PM | Permalink | TrackBack (0)
The Supreme Court of North Carolina is in charge of creating "Rules of Appellate Procedure". Basically, it means, what procedural steps must be done to get your case appealed from a lower court (District or Superior) and heard before one of our State Appellate Courts, (1st Court of Appeals, or 2nd NC State Supreme Court).
Previously (and until October 2009), if a litigate was not satisfied with a ruling at a lower trial court, the appellant (party appealing) had to file a "notice of appeal" which essentially puts the other party on notice and the courts that you are appealing their decision.
Then, the appealing party has to prepare a "Record on Appeal" (i.e. the lower court court papers, etc.). Contained within this record on appeal the appealing party has to set out, pursuant to Rule 10 of the Rules of Appellate Procedure, the "Assignments of Error" which set forth the specific errors in the record (lower courts). These "assignments' had to be very specific, were time consuming, and had to cite pages to the record which made an appellate process often difficult, and on occasion, would cause an appealing party's appeal to be dismissed due to a technical error (regardless of whether or not the Court was correct in a particular ruling).
With the new rules in place, a party will now have to submit a "list or proposed issues" on appeal, which more generically encompasses the argument the appellant is making on what occurred wrong at the lower court level. Hopefully this will result in more meritorious appeals being heard and less costs to litigants who choose to challenge a potential error by lower court judge.
If you or someone you know is in need of an appellate attorney, feel free to contact the attorneys at Mast Schulz Mast Johnson Wells & Trimyer. We have experience appealing decisions to the North Carolina Court of Appeals, the North Carolina Supreme Court, and with appeals at the United States Supreme Court.
By; Ron Trimyer, ron@mastschulz.com
Posted at 07:42 PM | Permalink | TrackBack (0)
In Craig v. New Hanover County Board of Education, the North Carolina Supreme Court ruled that when a plaintiff is barred from proceeding against the government for a "tort" claim due to the government having "immunity", then the plaintiff may seek a remedy under the North Carolina State Constitution.
Generally, governments and their agencies can be protected by the long standing principle of "government or sovereign immunity." Essentially what this notion does is that it prevents one from suing the "king". Immunity may be "waived" by the government "if" they purchase insurance coverage, and immunity is waived only to that extent. For example, you slip and fall in the courthouse because of a spilled glass of water an assistant clerk leaves and you break your leg. Unless the county has purchased insurance, your claim can be barred by immunity. Therefore, often, many counties do not even purchase any insurance to cover these types of claims.
Also, generally, in order to bring a claim for a violation of your North Carolina State Constitutional rights, you must have no other option under the law to bring a claim. Essentially meaning that if there is another theory of recovery you can pursue, such as a claim for "negligence" then you are prohibited from seeking to claim a constitutional violation.
In "Craig", a mentally handicapped student was molested at school, and the student pursued a claim against the local county school board alleging "negligence" and violations of rights protected under our NC State Constitution, including the "right to education" and a violation of the plaintiff's "liberty deprivation."
Many of the School Districts in North Carolina participate or pay money into the North Carolina School Boards Trust which is sort of like insurance but is not called as such. This "Trust" agreement or policy claims to provide for some coverage, but its "exclusion" section is so extensive most claims are not accepted. Some examples of excluded claims include "negligent supervision" or "sexual molestation" by a teacher.
At the first intermediate appellate levell at our Court of Appeals, the Court ruled that the plaintiff in "Craig" could "not" sue the school board for violating his state constitutional rights because he had a claim for "negligence" on the part of the school district (negligent supervision). The NC Court of Appeals essentially said that because in theory the acts were "negligent", and theoretically thestudent can bring the claim against the school board (though b/c of the exclusion of the trust/insurance policy there is no waiver), the the student in theory has an alternative remedy and therefore could not seek to sue the school for violating his constitutional rights.
The Supreme Court of North Carolina overruled the decision and stated that because the alternative state remedy (negligence claim) would be barred, there was actually and practically no "remedy", and allowed the student to proceed with his claim for the school boards violation of his constitutional rights.
Ron Trimyer, ron@mastschulz.com
Posted at 07:01 PM | Permalink | TrackBack (0)
Bradley N. Schulz, a senior partner in our law firm, has most recently been elected to the Board of Governors of the North Carolina Bar Association (NCBA) in The NCBA is the largest voluntary Bar Association in the State of John R. Wester of Mr. Schulz is also presently serving his fourth year on the Board of Governors for the North Carolina Advocates for Justice (formerly the North Carolina Academy of Trial Lawyers), the second largest voluntary Bar Association in the State of Additionally, Mr. Schulz has served on the Amicus and Legal Affairs Committees, and also has edited and authored Amicus briefs before the North Carolina Court of Appeals, and the North Carolina Supreme Court on behalf of the North Carolina Advocates for Justice. Both of these organizations can be found on the internet at www.ncbar.org and www.ncatl.org. We are very proud of Brad’s selection to serve on the governing Boards of both of these prestigious organizations, and significant amout of time and effort that this service involves. Congratulations Brad. Ron Trimyer
Posted at 09:17 PM in General Info | Permalink | Comments (0) | TrackBack (0)
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