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Last week, the Court of Appeals reinforced the importance of the statutory presumption that a doctor has obtained valid informed consent.  The Hauser v. Brookview Women’s Center court affirmed the trial court’s instruction on the presumption over the plaintiff’s objections.  In a win for providers everywhere, the Court rejected the plaintiff’s arguments that the presumption was only applicable where there were allegations of fraud, deception, or misrepresentation and that it does not apply where there are allegations that the provider did not explain the alternatives to surgery. … Continue Reading

On Tuesday, the Court of Appeals reversed a trial court’s dismissal of a plaintiff’s complaint seeking entry of a domestic violence protective order against her husband.  In Quackenbush v. Groat, the trial court dismissed the complaint despite twelve pages of attachments detailing alleged verbal abuse and sexual abuse of their minor child.  The reason appears to have been that the attachments submitted with the form were not specifically mentioned in the form. … Continue Reading

Rule 59 is a powerful tool. A trial court has discretion to determine whether any one of the nine grounds in Rule 59(a) applies. The trial court then has discretion to select a remedy—a new trial in whole or in part. The trial court may not, however, grant a Rule 59(a) motion and then award something other than a new trial, like an increase in the amount of damages.… Continue Reading

The Court of Appeals again reminded medical-malpractice litigants this week of the importance of including certain magic words about expert review in the complaint. In Fairfield v. WakeMed et al., the Court reconfirmed strict compliance with the heightened pleading standard in medical malpractice cases and affirmed the trial court’s dismissal of an action for straying too far from the language required by Rule 9(j).… Continue Reading

Can a motion to change venue for convenience of the witnesses be filed along with an answer? The Court of Appeals said “yes” on Tuesday in a decision that helps practitioners navigate some confusing issues regarding questions of improper and inconvenient venue.

In a split decision in Stokes v. Stokes, the majority dismissed a plaintiff’s appeal from an order changing venue, while the dissent suggested that the court should have exercised its jurisdiction to reverse the order as untimely. … Continue Reading

Worry not – if the Court of Appeals dismisses your interlocutory appeal, you can likely try again later. In WLAE, LLC v. Edwards, the Court made it clear that its order dismissing an appeal of the trial court’s order dismissing claims against one defendant did not prejudice the plaintiff from appealing that order once the final judgment was entered.

The plaintiff in WLAE brought claims against two defendants for alleged property damage to real estate owned by a limited partnership in which the plaintiff was the general partner. … Continue Reading

In State v. Meadows, the Court of Appeals determined that sentencing errors not preserved with a timely request, objections, or motion are waived under Appellate Rule 10(a)(1).  In doing so, the Meadows court 1) declined to follow a prior line of cases holding that Appellate Rule 10(a)(1) was inapplicable to sentencing issues, 2) applied the recently created exception to the In re Civil Penalty rule [previously blogged on here], and 3) did not address the Supreme Court’s 2010 decision in State v.Continue Reading

sheIn a divided opinion Tuesday, the Court of Appeals held that a lease and guaranty are separate contracts, even when the guaranty is incorporated into the lease. See Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc.  For this reason, the court held, a guaranty might be discharged in bankruptcy – even where the tenant assumes the lease to which it is attached and incorporated.… Continue Reading

In an opinion that must have come as a relief to North Carolina accounting firms and the Chamber alike, the North Carolina Supreme Court held that, absent unusual circumstances, an auditor is not a fiduciary to its client. In Commscope Credit Union v. Butler & Burke, the Court reversed a Court of Appeals’ holding that the relationship between a client and its auditor is one that may give rise to a fiduciary relationship as a matter of law. … Continue Reading

Harkening back to your first year property class, you may recall that North Carolina is a “pure race” state – that is, the first person to record a deed wins even if he has notice of other unrecorded conveyances of land.  However, the Court of Appeals held Tuesday that this rule doesn’t always apply – particularly where federal law provides differently. … Continue Reading