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Appellate Law

North Carolina Appellate Blog

Highlights developments in the appellate courts that affect business interests in North Carolina.
By Sean E. Andrussier

Post Frequency: 5.9/day

Last Entry: March 19, 2016 at 15:47:00

Today's NC Court of Appeals Decisions

Posted on July 07, 2009
The Court of Appeals issued 35 published decisions this morning. Sixteen are in criminal cases. The civil cases, at least at first glance, don't appear to be plowing any major new ground.We'll try to post something on the important ones later today...

Today's NC Supreme Court Decisions

Posted on June 18, 2009
Today the NC Supreme Court issued opinions. This batch doesn't include anything of note for this blog's purposes--i.e., decisions impacting businesses. The Court also issued orders on petitions. It appears the only PDR granted is in a case involving a prenuptial agreement.

Today's COA Decisions

Posted on June 16, 2009
Today the NC Court of Appeals released 21 published decisions. Five are criminal cases. More on these decisions later.

COA: Eminent Domain Taking Is Still For a Public Purpose When A Private Entity Also Derives A Benefit From The Taking

Posted on June 16, 2009
Today the COA held that a taking of property under eminent domain powers that serves a primary public purpose may also benefit a private entity. The case is Catawba County v. Wyant.Catawba County condemned property owned by the Wyatts and the Johnsons to build a sewer line connecting the county landfill to the city of Newton's sewer lines...

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COA: Employment Contract Existed Between Temporary State Employees and State

Posted on June 03, 2009
Yesterday the COA held that an employment contract existed between temporary state employees and a state regulatory body. The case is Sanders v. State Personnel Commission.Plaintiffs worked for the State as temporary employees through a temp agency for periods of time ranging from about a year to more than 6 years...

COA: School Board's Drug/Alcohol Testing Policy Is Unconstitutional

Posted on June 02, 2009
Today the Court of Appeals (COA) held that a school board's policy mandating random drug and alcohol testing of all school board employees is unconstitutional because it violates the North Carolina Constitution's guarantee against unreasonable searches and seizures...

Today's Court of Appeals Decisions

Posted on June 02, 2009
Today the NC Court of Appeals released 15 published decisions. Half the cases (eight) are criminal or domestic cases. More on today's cases later.

Virginia Senators Recommend Judge For Fourth Circuit

Posted on June 02, 2009
Virginia Senators Webb and Warner are recommending that the president nominate Barbara Keenan to the Fourth Circuit. She's long been a justice on the Virginia Supreme Court.

COA Reverses Business Court's Denial Of Class Certification In TCPA Case

Posted on June 02, 2009
Today the Court of Appeals (COA) reversed the Business Court's denial of class certification in a Telephone Consumer Protection Act (TCPA) case alleging that the defendant sent unsolicited fax advertisements to proposed class members. The case is Blitz v...

Today's COA Decisions

Posted on May 19, 2009
The NC Court of Appeals released 19 published opinions today. Nine are criminal cases. Three are workers' and unemployment comp cases. As for the remaining seven, two are related corporate tax cases. More on today's cases later.

COA Rules Against Terminated Employee Based On Absence Of Consideration To Support Employment Agreement

Posted on May 19, 2009
Today the Court of Appeals (COA) issued a split decision upholding a directed verdict for an employer in a contract action brought by a former VP of marketing after he was terminated. The case is Franco v. Liposcience, Inc. Judges Wynn and Hunter (the senior) were in the majority; Judge Ervin dissented...

COA Issues Significant Tax Decision Upholding Secretary's Authority To Force A Combination Of Corporate Entities For Tax Purposes

Posted on May 19, 2009
Today the Court of Appeals (COA) issued a significant tax decision for corporations that stratify their operations into multiple entities. The case dealt with the power of the Secretary of Revenue to force a combination of the corporate entities for purposes of reporting taxable income...

4th Circuit: Insurer Had No Duty To Defend Gov't Contractor Against Claims Alleging Torture At Abu Ghraib

Posted on May 14, 2009
Today the Fourth Circuit held that an insurer had no duty to defend its insured against claims alleging torture and abuse at Abu Ghraib and other prisons in Iraq. The case is CACI Int'l, Inc. v. St. Paul Fire & Marine Ins. Co.The insured, CACI, was a government contractor that provided logistical and intelligence support for U...

4th Circuit Lets "Market Timing" Securities Fraud Action Proceed Against Janus

Posted on May 07, 2009
Today the Fourth Circuit reversed the Rule 12(b)(6) dismissal of a putative class action alleging securities fraud based on allegedly misleading prospectuses about "market timing." The case is In re Mutual Fund Investment Litigation.The suit was filed by shareholders of Janus Capital Group, Inc...

COA: Revised Uniform Arbitration Act Does Not Permit Interlocutory Appeals from Orders Compelling Arbitration

Posted on May 06, 2009
Yesterday the COA held that the Revised Uniform Arbitration Act (RUAA) does not allow interlocutory appeals from orders compelling arbitration. The case is Bullard v. Tall House Bldg. Co.In this case the Bullards entered into a Building Agreement with Tall House that contained an arbitration provision...

Today's COA Decisions

Posted on May 05, 2009
The NC Court of Appeals issued 30 published decisions today. Nine are criminal cases.More on today's cases later.

4th Circuit Clarifies Limitation Period In EEOC Cases

Posted on May 05, 2009
Yesterday the Fourth Circuit decided when an EEOC decision becomes "final" for the purpose of commencing the 90-day limitation period for filing suit under 42 U.S.C. � 2000e-16(c). The case is Cochran v. Holder.The issue arose because the complainant filed a motion for reconsideration with the EEOC...

Today's NC Supreme Court Decisions

Posted on May 01, 2009
Today the NC Supreme Court released orders on petitions as well as opinions. With respect to petitions, the Court granted review in two cases, one civil, one criminal. The civil case concerns a trial court's decision to revoke the pro hac vice admission of two Indiana attorneys on the ground that they engaged in improper behavior and violated the Rules of Professional Responsibility...

COA Limits Standing for Partners and Shareholders

Posted on April 21, 2009
Today in Gaskin v. J.S. Procter Co., LLC the NC Court of Appeals (COA) clarified and limited the standing of limited partners (and shareholders) to sue in their individual capacities. In holding that the plaintiffs, who are limited partners, have no standing to sue the general partners and a third party--and that their lawsuit must be dismissed as a consequence--the COA limited the reach of Norman v...

Today's COA Decisions

Posted on April 21, 2009
The NC Court of Appeals released 16 published opinions today. Nine are criminal cases. There's only one dissent (in a criminal case). More on these cases later.

COA Outlines Duties Members Of An LLC Owe To the LLC And Its Other Members

Posted on April 21, 2009
Today the COA held that members of an LLC, in general, only owe duties to the corporation and not its members. The case is Kaplan v. O.K. Technologies.This case involved a corporate dissolution of a closely-held LLC, O.K. O.K. One of the disputes in dissolution was how the LLC should pay back loans made by one of the members (Kaplan)...

4th Circuit Holds That Investigatory And Remedial Expenses May Be Recovered As "Economic Damages" In CFAA Unauthorized Access Cases

Posted on April 16, 2009
Today the Fourth Circuit in A.V. v. iParadigms, LLC held that a claimant bringing a civil action under the federal Computer Fraud and Abuse Act (CFAA), 18 U.S.C. 1030(g), for unauthorized computer access may recover consequential damages such as investigatory and remedial expenses...

4th Circuit Issues Pro-Creditor Ruling On Bankruptcy Code's Elusive "Hanging Paragraph"

Posted on April 13, 2009
Today in In re Price the Fourth Circuit issued a significant ruling on the "hanging paragraph" in Chapter 13 of the Bankruptcy Code (11 U.S.C. � 1325(a)). The Fourth Circuit decided how to apply the hanging paragraph to a secured claim when a portion of the claim relates to the financing of negative equity -- which, in a car transaction, refers to the difference between the value of the trade-in vehicle and the amount of the buyer?s preexisting debt on that trade-in...

COA: County Where Government Official Is "Charged With Carrying Out Duties" Is Not Proper Venue

Posted on April 08, 2009
Today the COA held that where a public official is a party to an action, venue is proper where the cause of action arose and not where the official is "charged" with his or her duties. The case is Ford v. Paddock.In this highly-publicized case, a four-year-old child was killed by his adoptive mother...

COA Invalidates Non-Compete

Posted on April 07, 2009
Today the NC Court of Appeals (COA) held a non-compete agreement unenforceable because it wasn't reasonably tailored to protecting the employer's legitimate business interests. The case is Hejl v. Hood, Hargett & Assoc., Inc.Hejl was an account rep for insurance services...

Today's COA Decisions

Posted on April 07, 2009
Today the NC Court of Appeals released 38 published opinions. Ten are criminal cases. Five are domestic cases. There appears to be only one dissent--the first dissenting opinion of new appellate Judge Beasley (in a domestic case). There don't seem to be a lot of noteworthy cases in this mix...

COA Considers Factors Determining Timeliness of Motion for Relief From Judgment

Posted on April 07, 2009
Today the COA held that a Rule 60(b) motion for relief from judgment's timeliness is determined in part by "extraordinary circumstances" surrounding the judgment. The case is Sharyn's Jewelers v. Ipayment, Inc.In this case, Sharyn's took telephone orders and charged them to the same credit card for about three months...

COA: Lack of Reasonable Reliance Defeats Actual Reliance Element Required for UDTP Claim

Posted on April 07, 2009
Today the COA held that lack of reasonable reliance on a misrepresentation defeated the element of actual reliance required for an unfair and deceptive trade practices (UDTP) claim based on the misrepresentation. The case is Sunset Beach Development v...

4th Circuit Overturns Rule 11 Sanctions Against FEMA Attorney

Posted on April 04, 2009
Yesterday in In re: Bees the Fourth Circuit held that a S.C. district judge abused her discretion in entering Rule 11 sanctions against a FEMA attorney. Even though the FEMA attorney submitted a misleading declaration, made a misleading statement in a brief, and made misleading comments at a motions hearing, the Fourth Circuit's per curiam opinion held that sanctions shouldn't have been entered...

4th Circuit Lets First Amendment Case Go Forward Against Baltimore Police

Posted on April 02, 2009
Today, in Andrew v. Clark, the Fourth Circuit reversed the 12(b)(6) dismissal of a First Amendment suit brought by a Baltimore police officer claiming that officials with the Baltimore Police Department (BPD) retaliated against him for providing to the Baltimore Sun an internal memo he had written...

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