When is a Civil Contempt fine more than a fine?

In a brand new opinion from the Court of Appeals, a “creative” order from a District Court Judge was given a stamp of approval.

The defendant in Tyll v. Berry was told to have no contact with the plaintiff or the plaintiff’s family for a year.  It appears the Defendant had a tough time paying attention to the calendar because after one month, he was at it again sending harassing emails, only this time to a more distant branch of the plaintiff’s family tree.

The Judge accessed a contempt fine against the Defendant, but added the requirement that the payment be made NOT to the Clerk of Court, but to THE PLAINTIFF.  Typically, damages are not awarded to a party for the other party’s contempt but fines are not unusual at all.  Here the fine is just ordered to be paid to the Plaintiff.

You can READ MORE in North Carolina Lawyers Weekly.

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NC Statewide Primary has one VERY important judicial race!

The latest e-Newsletter -- on perhaps THE most important race.

The latest e-Newsletter — on perhaps THE most important race.

Just sent out the latest LEGAL TRENDS ODDS & ENDS newsletter regarding the beginning of “early voting” and the NC statewide primary election.  Perhaps the most important race is one at the bottom of the ballot for a seat on the NC Supreme Court.  READ MORE...

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Marching to Madness – LEGAL TRENDS newsletter discusses the madness of spending millions on judicial races

The March 2014 e-dition of LEGAL TRENDS, ODDS & ENDS has been posted, and it highlights a whole new kind of “March Madness” on the “courts” — the courts of law in North Carolina.

http://conta.cc/1e1hPXe

 

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Seventy-four words that can save American Democracy.

Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.

This is the brain-child of former Supreme Court Justice John Paul Stevens.  And if he gets his way (and I’ll do all I can to see that he does) it will become the next Amendment to the United States Constitution.  It is one of six proposed Amendments he is advocating in a new book (appropriately titled Six Amendments) to come out later this year.

Six Amendments -- But there's one that should be TOP priority

Six Amendments — But there’s one that should be TOP priority

Right now, though, the one that excites me is the one above regarding on political gerrymandering.  Folks that know me at all know that I have long been a critic of such practices, whether done by Democrats or Republicans.  Just within the last month, I had a piece in the Charlotte Observer complimenting the conservative Republican Secretary State of Ohio for his enlightened and courageous stand on the issue.  (The practice is also especially bad in North Carolina.)

As I’ve noted before in another op-ed piece,  The vast majority of this nation’s Congressional districts are surgically tailored to protect incumbents from one party or the other. This precise “gerrymandering” produces representatives who have zero incentive for reasoned compromise; indeed it is more likely to be penalized.

Thus, we have a situation where far more often politicians are pick their voters rather than voters having any substantive say in choosing their representatives.

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A victory for the good guys… courtesy of the NC Court of Appeals.

In a unanimous decision, the Appeals Court agreed with our position that the North Carolina Industrial Commission was wrong when it dismissed our client’s case involving a school bus, and a young child who was killed while crossing a rural highway in the pre-dawn hours to trying to get to his ride.

Sometimes it takes a while, but occasionally the good guys have a good day in Raleigh.  Such a day occurred earlier this week when the North Carolina Court of Appeals handed downed a well-reasoned and well-written opinion establishing jurisdiction within the NC Industrial Commission for a case involving a horrible pedestrian accident killing a 7-year old boy while he was trying to cross a rural highway to get to his school bus.

A case in search of a home…and this is it!
(The NC Industrial Commission building)

The case is Burns v. Union County Board of Education and it involves the wrongful death case of young Jonathan Beegle, who, as the opinion describes it… was waiting on the east of Medlin Road in Union County about six to ten feet from the roadway… At approximately 6:50 a.m., the bus… was travelling southbound…  As (the child) began to cross the street, a vehicle driven by a third party…was traveling northbound towards the stopped school bus. Before (the child) could reach the bus, he was struck (and) died later that day as a result of the trauma suffered in the accident.”

Just an unspeakably sad and awful loss.  (With her permission, I have written in this blog before about the very brave mom who is taking this tragedy as an opportunity to help others cope with their losses.)

Almost two years ago, we filed a claim under the State Torts Claims Act in the North Carolina Industrial Commission, based on a long standing statute giving that body jurisdiction to decide almost all school bus crashes.   But we received immediate opposition from the Attorney General’s office that the NCIC lacked any authority to decide the case or render any award to the child’s estate.  Basically, because we were upfront in saying we thought the case was more about negligent route design than driver error, the AG took the position that it was beyond the NCIC’s purview.

The Industrial Commission agreed with the Attorney General, but we appealed that decision to the Court of Appeals.  In essence, and Judge Robert C. Hunter (along with Judges Calabria and Robert N. Hunter) decided, they were wrong and we were right!

Big kudos to co-counsel SAM MCGEE for crafting an erudite, concise and clever brief that obviously did the trick with the Court!

Like I said, let’s hear it for the good guys!

(You can read more in an upcoming LEGAL TRENDS, ODDS & ENDS newsletter.)

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Advice to Keep Halloween Safe-via Channel 9

Reporter Jason Stoogenke interviewed me last week to understand better how residents can protect themselves from possible liability.

WSOC Reporter Jason Stoogenke interviews me regarding ways that help avoid legal liability to homeowners.

WSOC Reporter Jason Stoogenke interviews me regarding ways that help avoid legal liability to homeowners.

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NC Court of Appeals Proves Once Again — Being A Landowner Doesn’t Always Mean Having To Say You’re Sorry…

In a tough case involving crippling injuries to a Charlotte worker, the North Carolina Court of Appeals just last month handed down a case that once again proves that just because someone who is injured on your property — even someone who has been invited there — does not mean that you are legally liable to pay the resulting damages. Burnham v. S&L Sawmill, Inc, et al. NC Ct of Appls Case # COA12-1581

Judge Sam J. "Jimmy" Ervin IV

Judge Sam J. “Jimmy” Ervin IV – wrote the opinion upholding a dismissal of a trucker’s case against a landowner.

Nicholas Burnham worked as a dump truck driver for McGee Brothers Company in 2008, when he made a trip to the sawmill operated by S & L Sawmill, Inc. Once there, his task was to drive on to a scale to weigh the load, untie the binding straps which secured the load,, unload the logs and receive payment for the delivery before leaving. Although he had done this on numerous occasions previously, parking his truck in the same spot without incident, on April 3, 2008 his truck “was ‘fairly’ although not completely, level” with the truck leaning to the side slightly. As he engaged in the unloading process, a binding strap “snapped out” towards the place where he was standing, and a falling log rolled off and struck him, crippling him. He is now permanently confined to a wheelchair.

This case argued by three attorneys I know very well and for whom I have great respect, and the appellate decision was written by a Davidson classmate of mine, the Honorable Sam J. (“Jimmy”) Ervin IV. (Bribe me with enough wine, and I’ll tell you some not so “honorable” stories…heh, heh.)

In essence, Judge Ervin upheld the ruling by the trial judge (Yvonne Mims Evans is another jurist I know well, and for whom I have great respect) by explaining that the Plaintiff simply had not shown exactly what duty the Defendants had breached toward Mr. Burnham.

This opinion is a good “teaching” case, in that it quotes extensively from basic case law to more fully define and explain a landowner’s responsibilities. Judge Ervin quoted the seminal case of Nelson v. Freeland, 149 NC 615 (1998), as well as some others, as he tried to convey the delicate balance needed to hold landowners responsible for taking reasonable precautions for safety, but not making them liable for every injury that happens to occur on their property:

The ultimate issue…..

Having thus explained the law, Judge Ervin applied it in this case: “After carefully reviewing the record, we have been unable to find any record evidence tending to show that Defendants either created the condition which caused Plaintiff’s injury or failed to correct such a condition after notice of its existence.” And so the landowner wins, and the injured plaintiff doesn’t even get to a trial.

One final note: The next time you hear at some cocktail party some blowhard spouting off about how “everyone’s getting rich off of the legal system,” remind them that it’s just not so. I have no doubt the Plaintiff’s attorneys invested thousands of dollars on their own money to help their client and don’t have a dime to show for it. And neither the Defendant, nor its insurance company, didn’t have to pay a dime to a person horribly injured on its property.

Justice is a process, not necessarily any one result. We would all be wise to let the process work, and not muck it up any further through misguided “tort reform.”

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