Mast, Schulz, Mast, Johnson, Wells & Trimyer, P.A.

UNLICENSED CONTRACTOR CANNOT RECOVER FOR WORK PERFORMED

    Husband and Wife (Homeowners) had entered into a contractor with an individual builder who agreed to construct a new home. At the time the contract was signed, the builder, individually, was an "unlicensed” general contractor.  Therafter, he “transferred” the contract to his business (without the homeowners consent or knowledge), which had an official and duly authorized general contractor’s license and proceeded to build the home. Despite the fact that work was performed by the builder, the homeowners were not required to pay the builder.

    The Court relied upon precedent such as in Brady v. Fulghum, 309 NC 580 (held contract with unlicensed general contractor is unenforceable); Jenco v. Signature Homes, Inc., 122 NC App 95 (unlicensed contractor who transferred construction contract could not recover under an equitable theory of recover such as quantum meruit), Vetco Concrete Co. v. Troy Lumber, Co. 256 NC 709 (express contract precludes an implied contract as to the same subject matter).

    Therefore, it would be wise to make sure that any contractors who perform any work ensure that if they are not licensed, that they do not go above the statutory limits of what you are able to perform; and for homeowners, make sure that you check the credentials of persons that you allow to work on your home.

ALIENATION OF AFFECTION LAWS IN NORTH CAROLINA AMENDED

   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 “relationship” with the other spouse. For Alienations of Affections, essentially you must prove that the acts of the Defendant alienated or caused the love and affection that used to exist between the spouses to dissipate. With Criminal Conversation, you only need to prove that the Defendant had sexual intercourse with the spouse of the Plaintiff spouse.

    However, the Generally Assembly just passed a statute which limited the scope with which a hurt spouse can recover under the theory of Alienation of Affections. The statute limited the conduct to those which occurred while the Plaintiff and his/her spouse were together. So, under the new law, if the Defendant does not have any relationship until after the husband and wife seperate, then the Defendant cannot be held accountable for his acts.  Additionally, the new law prohibits a suit from a suit against a corporation or business entity.  Previously, some Plaintiffs have tried to sue the employer businesses of the Defendant alleging that the employer condoned or encouraged the acts of affair. However, with the passage of this new statute, that has been prohibited. lastly, this does not prevent a claim for "Criminal Conversation" which is the mere act of intercouse with a married spouse.

FELON HAS HIS GUN OWNERSHIP RIGHTS RESTORED

The North Carolina Supreme Court has recently ruled that a 2004 law passed by the General Assembly was unconstitutional. In Britt v. State of N.C. , the Defendant was convicted in 1979 of a felony drug crime, and once his probation ended in 1982, his right to posess a firearm was restored.

    However, in 2004, our state legislators passed amended N.C. Gen. Stat. s. 14-415.1 which prohibited the possession of a firearm by any convicted felon, even if they were at their own home or business.

    After Mr. Britt learned of the amended law, he voluntarily surrendered his “sporting rifles and shotguns” and proceeded to challenge the law by filing a civil rights lawsuit against the state.  Our State’s highest Court ruled that the statute was an “unreasonable regulation” and “not fairly related to the preservation of public peace and safety.”

CRIMINAL LAW: ILLEGAL SEARCH & SEIZURE

    In State v. Morton, the Court of Appeals recently held that the officer had performed an “Illegal Search and Seizure” of the Defendant which led to his arrest and conviction.  Generally, under your U.S. Constitutional Rights, you have a right to be free from unreasonable searches and seizures absent special circumstances.  A special exception would be where the officer has a reasonable belief that the individual is armed and dangerous (i.e. sees a handle of a pistol sticking out of waist band of pants).

The detectives in the investigation requested to speak with the Defendant regarding a drive-by-shooting and drug dealing.  According to the officers, the police department received a “tip” but there was no record of who provided the tip or whether they had provided reliable information in the past. This particular Defendant was known by the Detectives as he had voluntarily spoken with these detectives on several other occasions regarding unrelated matters in the past, just as he did in this case.  However, on this day, while speaking with the Defendant, the Detectives proceeded to “frisk” him and found some incriminating evidence against him which was used to prosecute him.

Since the officers knew the Defendant, had spoken with him on previous occasions, and had no eason to believe that he was a threat to them, the Court held that any evidence acquired off his person was excluded from trial.

 

GOVERNMENT IMMUNITY CON'T: PUBLIC DUTY DOCTRINE

    The State Tort Claims Act (STCA) is a statute that has expressly waived North Carolina’s common law immunity for claims against the state. Under the older common law, the gov't is immune from lawsuit absent a waiver of that immunity, or some other exceptions such as a U.S. Federal Constitutional violation.

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 related to law enforcement or for the public’s safety (such as a police officer or fire fighter), then the fact that the person failed to perform their duty correctly and causes an injury, a lawsuit is barred.   The theory behind it is that persons, such as officers, cannot be expected to prevent all crime control due to the limited resources / number of cops.

    The General Assembly recently changed N.C. Gen. Stat. s. 143-299.1(A) which limited the instances when the “Public Duty Doctrine” could be raised as a defense. The new statute limits the application of this defense to “police” or “quasi-police” functions, or “health or safety” inspections (such as fire inspectors). Before this statute, our appellate courts had expanded the doctrine beyond these areas, but the application by different judges / justices left this area of the law grey.

    In the recent decision by Chief Deputy Commissioner Stephen T. Green of the Industrial Commission, which involved a lawsuit against the Department of Transportation, the State had failed to correct a knowingly defective road hazard which led to the death of several individuals when they road over the dangerous section. Comm. Green denied the State’s Motion to Dismiss the case, arguing that the because a private citizen could not construct / repair the roads, therefore a regular individual could not be held liable, and therefore the State should not be held accountable for its negligence.

    See Stone v. NC Dept of Transportation, 347 NC 473, Melville v. NC Dept of Transportation, Phillips v. NC Dept of Transportation.

GOVERNMENT IMMUNITY? COUNTY NOT RESPONSIBLE TO HOMEOWNER

    In Estate of Vera Hewett v. Burnswick County, the NC Court of Appeals held that Brunswick County was not required to pay damages to a homeowner after it destroyed a barn owned by a private citizen. Brunswick Co. was operating a trash program to clean up “junked” items to improve the overall appearance in the county.  The County was asked to remove an old barn on one property which was approved, but the employees that actually performed the work mistakenly tore down barns located at a nearby property.

    The homeowners sued the County for damages related to the demolition of their property and the removal of all of its contents. The County did not agree to pay for their acts and instead defended their acts by claiming that their acts were protected since they were a government entity performing a government function..

    The Court of Appeals sided with the County finding that the County was immune from a lawsuit, and therefore did not have any legal liability to the innocent homeowner.

U.S. Supreme Court Ruling may have impact on N.C. Dwi's

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.

NC Supreme Court Abolishes "assignments of error"....

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

Another Victory in the Fight Against Governmental Immunity

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

Brad Schulz is elected as Govenor of NC Bar Assoc.

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 Raleigh. 

The NCBA is the largest voluntary Bar Association in the State of North Carolina.  The Association was founded 115 years ago, and is one of the premier Bar Associations in the country.  Mr. Schulz will serve as a "Governor" for a 3 year term.  In the past, Mr. Schulz has served as Vice-Chair, and then Chair of the Law Practice Management Section (LPM) of the NCBA. This Section assists attorneys throughout the State in the administration and practice of their law offices.  

John R. Wester of Charlotte was recently named President of the Association, and the immediately past-President is Charles L. Becton of Raleigh.  Mr. Schulz was also selected by President Wester to Chair the Resolutions Committee of the Board of Governors.   

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 North Carolina.  This organization primarily focuses on advocating for the legal rights of civil litigants, as well as criminal defendants, throughout the State of North Carolina.

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