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

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

 

 

Mast Law Firm Scholarship Recipients : Congratulations Seniors

Each year since at least 1996, the Mast Law Firm has awarded a very deserving scholarship to a graduating senior at "each" Johnston County High School. We are currently up to seven (7) schools.

We are very proud of this years recipients. Congratulations to all. 

 

 

 

Update: Child Support Class Action in North Carolina

At a recent hearing, the Honorable Resident Superior Court Judge Tom Lock recently instructed the Clerks of Court in the counties of Johnston, Wayne, Hoke, Durham, and Alamance to review their Termination of Parental Rights files and to provide the information to the court for the purpose of determining whether any of these indvidiuals whose rights have been officially terminated, have paid child support after they were obligated to.

The Attorneys at the Mast Law Firm filed a class action alleging that in numerous counties throughout the state of North Carolina, the North Carolina Child Support Enforcement Center has sought and collected child support from persons who owed no child support at all.

If your parental rights were terminated, and you continued to pay child support, feel free to give me a call at 919-934-6187.

Also see our prior post at http://www.mastlegal.com/mast_schulz_mast_johnson_/2009/04/index.html

Ron Trimyer

Contact your State Senator, NC may finally get rid of contributory negligence

North Carolina is one of only a handful of states that still adhere to this prehistoric notion of "contributory negligence." 

Most individuals may not have heard of or even understand this concept until they are hurt and/or it is too late. Essentially what this means, is that in North Carolina, if you are injured or hurt at the hands of another, and the judge or jury determines that you may have been only 1% at fault in contributing to the occurrence or accident, you are barred from collecting anything.

Take a practical example, you are traveling down interstate highway 70 heading towards the beach... the speed limit is 55 but you are traveling 60 mph.  Someone pulls out to make a right-on-red turn and pulls out in front of you and you do not have nearly enough time to stop and you rear end him, or run off the road. You are hurt, lose time from work, have surgery, have some lingering effects from the accident (no longer able to fish/swim/golf), etc.

The defendant may submit to the jury that if you had not been traveling above the speed limit, then the accident would not have occurred. If the court finds that it did contibute, then you cannot collect anything.

House Bill 813 / Senate Bill 679 seeks to modify that.

Most states have "comparative negligence", which basically means that if someone else hurts or injures you, but you are found to have contributed in some way, then your recovery is only proportionally reduced by the amount of your fault.

So, in the above example, if the court were to find that your "speeding" contributed 10% to the accident, but the main-at-fault-driver was 90% at fault, and you were awarded $50,000.00 for your lost wages, medical expenses, and pain & suffering, then your recovery would only be reduced by 10%, rather than under the current system where you would collect nothing.

An amended version of the Bill has already passed the house and it is now going to the senate.

Please contact your local north carolina senator and tell them that you are in favor of passing Senate Bill 679 entitled an AN ACT TO ENACT THE UNIFORM APPORTIONMENT OF TORT RESPONSIBILITY ACT

You can find your local senator representative by going to http://www.ncleg.net/gascripts/members/memberList.pl?sChamber=Senate    or going to

http://capwiz.com/ncatl/directory/statedir.tt?state=NC&lvl=state

If you or someone you know has been hurt or injured due to the acts of another, contact the lawyers at Mast, Schulz, Mast, Johnson, Wells & Trimyer at www.mastschulz.com, or call 919-934-6187. 

Ron Trimyer, ron@mastschulz.com.

DWI s in North Carolina: Interlock devices and recent updates

In Brunson v. Tatum, the North Carolina Court of Appeals has ruled that a person who attempts to drive their vehicle, by merely blowing into an interlock device (even without turning the key or starting the car) may violate the terms of their conditional license or limited driving privilege. 

In North Carolina, if you are charged and convicted of Driving While Impaired (Driving under the influence), and you have a high blow .16 on the intoxilyzer or have had multiple dwi's, usually in order to obtain your license or limited driving privilege (work license) you may have to have an "Interlock Device" installed on your vehicle. An interlock device requires that the operator blow into the machine before the ignition will be able to crank start the car. In the case cited above, a North Carolina driver who had a conditional license attempted to start his vehicle after taking some cold medicine, which contained some alcohol, registered some amount of alcohol on the device. Due to that, the driver was unable to start or drive the vehicle. However, because the Interlock Device keeps a record of attempts to blow into the machine, it was apparently reported to the North Carolina Division of Motor Vehicles (NCDMV) and his license was revoked.

Generally, one is prohibited from operating a motor vehicle was subject to an impairing substance which, under case precedent, requires the key in the ignition and/or the engine running. For this person, neither of those points were reached but based upon the decision, anyone who is subject to a restriction with an interlock device would be well advised not to even "attempt" to drive or blow into the interlock device if they have consumed "anything" with alcohol in it (such as mouthwash or Listerine) to avoid the possibility of losing their driving privileges.

In another recent case, State v. Anderson, an intoxicated driver was sitting in he vehicle while it was being towed by another car. The intoxicated driver's engine was off.  The defendant was found guilty because under the statute, a driver is one in actual physical control of a vehicle with the engine running or "in motion."

If you have been charged with Driving While Impaired (DWI) or any other traffic matter, the attorneys here at the Mast Law firm are here to help.

Cleveland Strawberry Festival This Saturday, April 25, 2009

The Law Firm of Mast Schulz Mast Johnson Wells & Trimyer will be at the 10th Annual Strawberry Festival in the Cleveland Area of Garner/Clayton this upcoming weekend. We will have a tailgate grill (by Holland Grills) giveaway, clown face-painting, balloons, and other items to give away. 

The Strawberry Festival is hosted by the Greater Cleveland Chamber of Commerce.  There will be a variety of events and activities for all ages.  There will be Inflatables, a mechanical bull ride, slides, and other fun. In addition to local businesses, vendors will be on site selling food and snacks, including the usual favorites, cotton candy, funnel cakes, hot-dogs and of course strawberries.

The Cleveland Fire Department will be on hand to teach children how to get out of a home in the event of a fire.  For all of you car enthusiast, the 2nd Annual Classic Car show will also be held.

Stop by early to get a Chamber Strawberry Festival T-Shirt and please visit all of the Chambers' Gold Sponsors.

Please stop by our table as several of our attorneys, paralegals and staff will be on hand, including Don Wells, Past President of the Greater Cleveland Chamber (2008).

The festival is located on Technology Drive between Highway 42 and Glen Road (near the Food Lion).

Hope to see you all there.

Ron Trimyer

For more information please visit http://www.greaterclevelandchamber.com/

Brochure for when you are in a car accident

Would you know what to do if you were in a car accident?  The following is a link for a printable checklist and brochure for you to use if it ever happens to you.

Download Car Accident brochure (English)

Download Car Accident brochure (Spanish)

Our firm has been handling car accidents for over 40 years.  Contact us if you have been in an accident.  You can call our offices at 919-934-6187 or 919-661-2005, visit our website at www.mastschulz.com, or feel free to email me at charles@mastschulz.com.

Charles Mast

Mast Law Firm Files Class Action to Recover Illegally Collected Child Support

The Mast law firm filed a lawsuit on behalf parents throughout the state and beyond that have been forced to pay child support when they did not owe anything. The complaint alleges that the Defendants, including the North Carolina Department of Health and Human Services, Johnston County and other counties ( Durham, Hoke, Alamance, Wayne, and others) have collected illegal child support for years. 

Child support enforcement usually provides a great service to the citizens of North Carolina by ensuring that children are taken care of by the responsible parents. However, sometimes, parents can "lose" their rights by way of adoption or through termination proceedings that can be brought by a relative (such as a grandparent) or the department of social services (DSS). Once the termination proceedings/adoption is finalized, the one who adopted or brought the termination proceedings against the biological parent becomes financially responsible.  What this means is that once finalized the biological parent owes no further child support from that day forward. In one instance a grandmother that had custody of her grandchildren filed a "termination proceeding" against her daughter and "served" her via the newspaper and obtained an order.  

Thereafter, Johnston County Child Support Enforcement brought child support proceedings against the mother and collected over NINETEEN THOUSAND DOLLARS ($19,000.00) that she did not owe. The mother’s wages were garnished and her tax refunds were sent directly to the state. She had to pay this money or risked being thrown in jail. This is because in NC if you cannot pay child support a judge can hold you in contempt and send you to jail for thirty days.  Other cases have been discovered including one in Wayne County where a child had been adopted and the father was still required to pay support, had seven (7) orders for arrest issued and twelve (12) orders for contempt against him.

The lawyers at the Mast Law Firm are seeking to correct this system which allows the Counties and State to pursue child support illegally. It is possible that there are individuals in jail right now who should not be. We are trying to recover that money lost by these citizens illegally from the State, the County, and the negligent attorneys working for them who caused this to happen.

If you or anyone you know has had their "parental rights terminated" and continue to pay child support, feel free to give us a call so that we can assist. You can call our office at 919-934-6187, visit our website at www.mastschulz.com, or feel free to email me at ron@mastschulz.com 

Ron Trimyer, Attorney

New Bill may finally allow garnishment of wages to satisfy judgements

In a recent session of the North Carolina General Assembly, House Bill 10 was introduced which may allow an additional means to collect civil judgments.  Often, the only way to collect judgement is to try to force an execution (seizure, sale) on the defendent's (debtor's) property, such as real estate or personaly property (vehicles, equipment, etc.).  Currently the law allows for certain exemptions from collection like an allowance for real property, vehicles, tools of trade, etc. 

In situations where the defendant owes money and does not have anything to collect from, the judgement may be uncollectable. Sometimes after a judgment is entered, the debtor may choose not to purchase any property in his or her name to prevent collection (like leasing property or  titling in another's name). Obviously this can be frustrating to persons who are owed money due to the harm caused by another (such as an auto accident).

Currently, even if the defendant is working there is not a means to collect money from thier paychecks. The new law attempts to address this issue. Under proposed the proposed version of N.C. Gen. Stat. s 1-362 one can obtain an order that will direct an employer to garnish an employee's wages as payment towards a judgment.  Employers will be allowed to retain a fee for thier compliance with the order of up to $5.00 per pay period which will essentially be lost by the creditor as a convenience fee for the service. Typically, garnishment in North Carolina is often only allowed for payment of child support, taxes, etc.

This new means to garnish wages could have a significant impact to persons who have been hurt, injured and/or damaged by persons who do not have a strong net worth, but who like many of us, hold a job but need to be held accountable for wrongs that they have done. Additionally, this may enable more victims who have legitimate and valid claims to seek compensation for thier loss, and may make it easier to find a lawyer to handle thier case. 

If you or anyone has been injured or damaged by someone else, please feel free to give us a call at (919) 934-6187.

by Ron Trimyer

Our website is www.mastschulz.com and you can email me at ron@mastschulz.com

New Home Buyer/Great Rates

We are seeing great mortgage rates in the area of 4.5% fixed for a 30 year term.  With some of the new federal incentives, you may also qualify for an $8,000 benefit if you are a first time home buyer.  Some of the pundits state that we have not seen these rates for 25 years, and predict that it will be another 25 years before we see them again.  If you presently own a house, it is also a great time to look at refinancing your loan.  As a rule of thumb, if you can reduce your loan by at least 1% go for it!  My firm can help you.  Give us a call.  Brad Schulz

Who should I call when I have a major construction problem ?

I am seeing more and more significant construction problems with houses.  It is important that you seek the guidance of an experienced construction attorney when the problem becomes evident.  In NC, you have certain rights if the problems are reported in the first year after completion of the house.   You also can bring certain claims in the first three years.  

We are seeing construction situations where the general contractor has lost his license in the past, but is still building.  We also see many contractors that do not carry insurance to cover negligent construction.   This type of coverage is not mandatory in North Carolina.  Ask the contractor that you are considering hiring, to provide you information on all of his insurance related to construction.  

If you have a major problem after construction, and the contractor will not remedy it, contact an experienced construction attorney.  In our firm, Ron Trimyer and Brad Schulz regularly review and handle these claims.  Brad Schulz 

Do I need an attorney ?

In this economic day and time, if you are married, and are considering separating, you should at least have an initial consultation with an attorney.  Although many people are concerned about the distribution of certain property items, the debt issues can be just as important, especially where people are "upside down" in th asset.  Additionally, it goes without saying that when custody issues are involved, you need advice from a practicing attorney.  Although folks are looking to cutback on certain expenses these days, good legal advice should not be one of those items.  Brad Schulz

Welcome

We at Mast, Schulz, Mast, Johnson, Wells & Trimyer, P.A. welcome you to our blog.  We will use this blog primarily to share legal news and commentaries relevant to our areas of practice that we believe may be helpful to you.  We also support initiatives involving education awareness, and we participate in a variety of local community events, so we may also share stories about our involvement in these areas.  Please feel free to browse around and submit comments on our posts.

DISCLAIMER:
We do not intend for any post on this blog to establish an attorney-client relationship and it is not our intent for any information on this blog to be taken as legal advice.  You are urged  to consult an attorney if you have a particular legal problem so that you can be properly advised as to your legal options.