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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

4th Circuit Rejects Challenge To MD Occupational Licensing Scheme

Posted on March 29, 2009
On Friday, in Brown v. Hovatter, the Fourth Circuit rejected constitutional challenges to a Maryland law that restricts licenses for morticians and funeral homes. The statute prohibits corporate ownership of a mortician's license or funeral home; and it prohibits unlicensed individual ownership of funeral homes...

Today's NC Supreme Court Decisions

Posted on March 20, 2009
Today the NC Supreme Court issued orders and opinions. The Court granted discretionary review in one case, it appears.And the Court issued decisions (opinions or per curiams) in nine cases, four of them criminal cases (I'm not counting the two additional cases where the Court ruled that discretionary review was improvidently allowed)...

4th Circuit Issues SCA Ruling On Employer's Access Of Employee's Personal Email Account

Posted on March 19, 2009
Yesterday in Van Alstyne v. Electronic Scriptorium Ltd. the Fourth Circuit addressed the Stored Communications Act (SCA), 18 U.S.C. 2707, and held that a plaintiff suing under the SCA must prove actual damages to be eligible for statutory damages. The Court held, however, that a plaintiff need not prove actual damages to recover punitive damages or attorney's fees...

Yesterday's COA Decisions

Posted on March 18, 2009
For this blog's purposes, there isn't much noteworthy in yesterday's stack of cases. There are some zoning cases and some contributory negligence cases. There's a discovery case holding (consistent with the so-called "Sporck doctrine") that a lawyer's selection of information from documents (including verbatim notes) may be entitled to opinion work product protection even though the underlying documents themselves aren't protected work product...

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Today's COA Decisions

Posted on March 17, 2009
Today the NC Court of Appeals released 22 published decisions (in 21 cases; two opinions arise from the same case). Nine are in criminal cases. More on these cases later.

4th Circuit Repudiates NLRB, Rules For Employer In Case Of Employee Dismissed For Profane Remark About Company VP

Posted on March 14, 2009
Yesterday the Fourth Circuit issued a significant decision repudiating the NLRB. The NLRB had ruled that an employer had unlawfully discharged an employee for making a profane remark about the company's VP during a period when the union was renegotiating a collective bargaining agreement...

Fourth Circuit Upholds Large FMLA Judgment Against Pfizer

Posted on March 08, 2009
This week in Dotson v. Pfizer the Fourth Circuit upheld a massive judgment in a Family and Medical Leave Act (FMLA) case involving adoption-related leave by an employee who took time off to adopt a child from Russia and who was later fired. Dotson claimed FMLA retaliation...

4th Circuit Reiterates: Don''t Transform Contract Actions Into UDTPA Claims, Particularly In Disputes Between Sophisticated Businesses

Posted on March 08, 2009
This past week the Fourth Circuit reiterated this principle: a case that at its core is a dispute over contractual performance shouldn't give rise to a claim under N.C.'s unfair and deceptive trade practices act, G.S. 75-1.1 ("UDTPA"). The case is PCS Phosphate Co...

COA: Damages and Attorneys' Fees Cannot Be Obtained Through Rule 60 Motion or Tax Foreclosure Action

Posted on March 04, 2009

Today's COA Decisions

Posted on March 03, 2009

COA: Agreement Governing Negotiations for Possible Work Is Binding Without Statement of Work

Posted on March 03, 2009

Last Week's COA Decision Affecting Charter Schools

Posted on February 24, 2009
Last week we didn't post about a NC Court of Appeals (COA) decision involving education law: Sugar Creek Charter School, Inc. et al. v. Charlotte-Mecklenburg Bd. of Educ. (?Sugar Creek II?).We have colleagues in our firm who practice education law, and one of them, Sarah Motley of Charlotte, prepared this post about the case...

Today's COA Decisions

Posted on February 17, 2009
Today the NC Court of Appeals released 15 published decisions. Frankly there's nothing of significance here to write about. Today's prize for the most bizarre case: a statutory rape case where the defendant won a new trial. Defendant lived with his wife and their kids, and with his girlfriend and her kids...

Fourth Circuit Issues Bankruptcy Decision On Commodities "Swap Agreements"

Posted on February 12, 2009
Yesterday the Fourth Circuit decided a bankruptcy case, In re National Gas Distributors, involving commodities "swap agreements." The case drew a number of amicus briefs. Here's an article about the case by Zach Lowe courtesy of Am Law Daily.

Supreme Court Finds Personal Jurisdiction Against Foreign Corporation's CEO Based On His Corporate Contacts With NC

Posted on February 08, 2009
On Friday the NC Supreme Court issued a per curiam decision on personal jurisdiction. The Court reversed a Court of Appeals (COA) decision that rejected personal jurisdiction against a foreign corporation's CEO. The Supreme Court adopted the dissenting opinion of (former) COA Judge Arrowood...

NC Supreme Court Decisions Today

Posted on February 06, 2009
Today the NC Supreme Court released its first orders and opinions of 2009. The Court granted discretionary review in a handful of cases. And the Court issued decisions in five cases--four of which are summary per curiam affirmances or reversals. The five cases are: a criminal case, two parental rights cases, a case involving conversion by the executor of an estate, and a dispute over personal jurisdiction...

COA Majority: Party Represented By Attorney in Real Estate Transaction Bears the Risk of Loss When Attorney Embezzles Sale Proceeds

Posted on February 04, 2009
Tuesday in Johnson v. Schultz, the COA held that the party who was represented by an attorney who embezzles sales proceeds from a real estate transaction bears the risk of loss.In this case the Schultzes entered into contract with Johnsons to the Johnsons' purchase real estate...

COA: Insurance Policies Covering Car Involved in Florida Accident Are Governed by the NC Uniform Arbitration Act

Posted on February 04, 2009
Tuesday the COA held that insurance policies covering a car involved in an accident in Florida were governed by the North Carolina Uniform Arbitration Act. The case is N.C. Farm Bureau v. Sematoski.This case involved a insurance coverage dispute stemming from a car accident in Florida in which Semtoski was injured...

COA Decisions Today

Posted on February 03, 2009
The NC Court of Appeals released published opinions in 18 cases today, 10 of which are criminal cases. More on today's decisions later.

COA Upholds Rule 11 Sanctions Against Lawyers For Disparaging Comments

Posted on February 03, 2009
Today in Johns v. Johns the Court of Appeals (COA) upheld Rule 11 sanctions against a law firm based on the disparaging content of a motion it filed in the context of a hotly contested divorce proceeding. The motion, according to the trial court, was "filled with unverified, irrelevant and disparaging comments about the personal history and character of" the wife and her teenage daughter from an earlier marriage, including comments about the wife's issues with ex-husbands...

COA: Express Contract Provisions on Indemnity Control Where Parties Were Found Liable On Different Grounds

Posted on February 03, 2009
Today in Charlotte Motor Speedway v. Tindall Corp. the Court of Appeals (COA) held that indemnification provisions in a construction contract prevented Speedway from recovering anything from Tindall on an "implied-in-law" theory of indemnification. This case arose out of the 2000 collapse of a pedestrian walkway that went from the Charlotte Motor Speedway to its parking lot...

COA Rejects Fraud And UTPA Suit By Company Executives Arising From Company's Asset Sale

Posted on February 03, 2009
Today in Schlieper v. Johnson, an appeal arising from the Business Court, the Court of Appeals (COA) affirmed the dismissal of a fraud and UTPA suit brought by two former executive employees against the company for which they worked and the CEO. The suit arose from the company's asset sale, which produced $2 million for these plaintiffs...

NC Supreme Court Decisions Due This Friday

Posted on February 02, 2009
The NC Supreme Court is scheduled to release orders on petitions on Feb. 6, and we expect the Court to release opinions that day too. This will be the Court's first release in 2009. The Court's website features a cool new format for opinions: on one page, no only can you link to the opinion for a case (in searchable PDF format now); you can also link to the docket for the case and to the underlying Court of Appeals decision...

COA: Indirect Purchaser's Price Fixing Suit States Sufficient Claim Even Where Task Of Proving Damages Is "Daunting"

Posted on January 22, 2009
Wednesday the NC Court of Appeals (COA) held that an indirect purchaser of products containing a chemical compound produced by the defendants could sue defendants for price fixing of that compound under Chapter 75, North Carolina's unfair and deceptive trade practices statute...

4th Circuit Finds Defendant Defaulted On Right To Arbitration

Posted on January 21, 2009
Today in Forrester v. Penn Lyon Homes the Fourth Circuit held that the defendant defaulted on its right to compel arbitration under the Federal Arbitration Act (FAA) because, before moving to compel arbitration, the defendant engaged in extensive litigation measures that caused the plaintiffs actual prejudice...

Today's COA Decisions

Posted on January 21, 2009
Today the NC Court of Appeals released decisions today (a one-day delay since yesterday was a snow day. There are 14 published decisions. There's not much of note in this stack, since 10 of the 14 decisions are criminal, parental rights, and workers' comp cases...

Split 4th Circuit Rejects CAFA Removal

Posted on January 17, 2009
In yet another case on removal under the Class Action Fairness Act (CAFA), the Fourth Circuit yesterday held that the defendant didn't establish CAFA's amount-in-controversy requirement. The case is Barnikowski v. NVR, Inc. Judge Gregory wrote the majority opinion...

4th Circuit Rejects Pitt County's Suit Against Online Travel Companies

Posted on January 15, 2009
Yesterday the Fourth Circuit rejected a class action lawsuit by Pitt County, NC, which was based on the failure of online travel companies to pay the County's hotel occupancy tax. The case is Pitt County v. Hotels.com, L.P. The Court held that online travel companies aren't subject to the tax because they're not "retailers" (under the State's sales tax code) since they aren't businesses of a type similar to "hotels, motels, tourist homes, [or] tourist camps," as the statute provides...

Filling Judge Phillips's Seat On The 4th Circuit

Posted on January 12, 2009
Here's a piece commenting on the "Phillips seat" on the Fourth Circuit, which has been vacant since 1994, when North Carolina's J. Dickson Phillips took senior status.

4th Circuit Tosses Securities Fraud Class Action Against Deloitte

Posted on January 07, 2009
Two days ago the Fourth Circuit rejected a securities fraud class action arising out of fraudulent accounting by Royal Ahold. The case is Public Employees' Retirement Assn. of Co. v. Deloitte & Touche LLP. The opinion was written by Judge Wilkinson, and it has the flavor of the opinion he issued two weeks ago rejecting another securities fraud action (on which we posted here)...

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