North Carolina law prohibits unfair or deceptive acts “in or affecting commerce.”
But “commerce” doesn’t include “professional services rendered by a member of a learned profession.” This quoted language comes straight from Section 75-1.1.
One clear takeaway from this language is that a professional’s treatment of a patient or client doesn’t violate Section 75-1.1. A medical malpractice plaintiff can’t get treble damages.
It’s less clear, however, whether this language applies to claims about conduct between or among medical professionals.
This post studies a recent Business Court decision on that issue. The decision comes from a case styled Alamance Family Practice, P.A. v. Lindley, 2018 NCBC 82 (N.C. Super. Aug. 14, 2018).
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Litigationhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngLitigation2018-09-19 21:34:372018-09-19 21:34:37A Family Practice. A Cunning Nurse. Does Section 75-1.1 Apply To Her Conduct?
For the entire 26 years of my practice, I have been a litigator. While my practice also includes non-litigation matters such as lobbying and “legal crisis management” (a fixer, so to speak…), the core of what I do – and what I’ve done for my professional career – is litigate. I’ve also had the honor of being a local elected official for eight years, and I can tell you that being a litigator certainly helped me with the transition into politics/advocacy/service to others. Politics also made me a better litigator by teaching me that relationships matter – whether with your opposing counsel, the judiciary, the courthouse staff, or anyone else you may run into on a regular basis. Politics also taught me this very valuable lesson: You can accomplish a great deal if you do not seek or crave credit for your accomplishments. This lesson has probably done more for me in the past ten years than anything else.
Help us plan for the future at the Litigation Section strategic planning meeting Aug. 17. Click for details.
If someone had asked me what a litigator was supposed to do when I graduated from law school, my answer would have most assuredly been, “A litigator is a fighter.” I probably felt this way for the first six to ten years of practicing law. I did not recognize that in addition to fighting, litigation is also supposed to be about solving problems. When asked today what I do as a litigator, my response typically is, “I try to fix problems whether litigation is involved or not, because at the end of the day, litigation sucks!” Perhaps that is a little too strong, especially given that is what we all do in our chosen profession. But, in all seriousness, how many times has this thought run through your head since you’ve been practicing law? I bet you’ve thought this when you’ve had to deal with your obstreperous client, or when your opposing counsel drives you crazy, or the costs to litigate have grown exponentially, or the judge has ruled against you, or WHATEVER problem du jour you are dealing with that erupts in any case that you are currently handling. Let’s face it, litigation can be challenging, frustrating, expensive, unfair and long – even if you win your case. But often, it is also the best tool trying to fix (or end) civil disputes.
On June 19, 2018, the North Carolina Judicial Branch rolled out the new public website for our courts (https://www.nccourts.gov). The site is the culmination of the work of the Discovery Phase of the web redesign project and recommendations in the final report of the North Carolina Commission on the Administration of Law and Justice (NCCALJ). During the process, NCCALJ invited comments and suggestions from state bar members, other agencies, and community users of the state court website, as they innovatively worked to bring the judiciary, the bar, and the citizens of North Carolina an effective, user-friendly website.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2018-06-26 18:16:182018-06-26 18:16:18A Site For Your Sore Eyes
Janet Ward Black of Ward Black Law in Greensboro was honored on Feb. 7 as the 10th recipient of The Advocate’s Award.
Janet Ward Black, left, accepts The Advocate’s Award from Litigation Section Chair Amanda Martin during a Section reception on Feb. 7.
Presented as merited by the Litigation Section of the North Carolina Bar Association, the award recognizes “superstars” of the section and the legal profession.
Amanda Martin, section chair, presented the award in Greensboro during a special reception held in conjunction with a meeting of the Litigation Section council.
Attorneys and staff from Ward Black Law also participated in the event. Black is the principal owner of the 36-person firm, which is one of the largest woman-owned law firms in the state, and the first woman to receive The Advocate’s Award.
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North Carolina courts have, on several occasions, attempted to describe the dividing line between ordinary breach of contract claims and claims that allege “substantial aggravating circumstances” relating to a breach. The latter category of claims violate N.C. Gen. Stat. § 75-1.1.
This blog post unpacks a recent decision that sheds light on this dividing line. The case is Swift Beef Co. v. Alex Lee Inc., authored by U.S. District Judge Max Cogburn.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2018-05-10 07:22:302018-07-21 14:27:51For Section 75-1.1, the Dividing Line Between Contract and Non-Contract Claims Can Be Fuzzy
In a recent opinion, the North Carolina Supreme Court expanded the possibilities of allowable testimony about a property’s fair market value. In its decision in North Carolina Department of Transportation v. Mission Battleground Park, DST, 810 S.E.2d 217 (N.C. 2018), the court held that the trial court had improperly excluded the testimony of a commercial real estate broker regarding the fair market value of property condemned by the North Carolina Department of Transportation (“NCDOT”). This article briefly explores the case facts and the reasoning of the decision and also discusses how this ruling affects condemnation or other types of cases.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2018-05-01 13:58:072018-05-01 13:58:07N.C. Supreme Court Rules That Brokers May Testify on the Issue of Fair Market Value
In recognition of the Supreme Court of North Carolina’s 200th birthday, Chief Justice Martin recently announced that the Court is going to put on a road show. North Carolinians living outside Raleigh soon will be able to watch the high court in action without having to travel far.
For as long as anyone now living can remember, the Supreme Court routinely has sat in Raleigh, but it was not always so. When established in 1819, the Supreme Court met in the state capitol. However, as North Carolina’s population grew, so did pressure to meet in a venue convenient to citizens in the western part of the State. In 1847, the General Assembly passed legislation requiring the Court to hold sessions in Burke County.
Courts have generally excluded residential real estate transactions from North Carolina’s Unfair and Deceptive Trade Practice statute, section 75-1.1. A recent decision from the North Carolina Court of Appeals, called Capps v. McSwain, addressed this exemption. This post explores this decision—including the reasons behind the exemption.
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For our third and final installment of this series (you can read Part I and Part II here), we head to the coast and summarize what the TCA and TCC of New Hanover County want you to know about practicing in their county.
Rule No. 10: Know Your Local Rules (Third Time’s the Charm)
For the third time running (see Rule No. 1 and Rule No. 5), the New Hanover County TCA and TCC both stressed the importance of attorney familiarization with the local rules. New Hanover County’s local rules can be found here and the local calendaring rules can be found here.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2018-03-12 13:36:092018-07-21 14:37:32What Your Trial Court Administrator Wants You to Know, Part III: Eastern Region
In our first installment of this three-part series, we discussed advice given by the TCAs in Cumberland, Forsyth and Guilford counties. Now, we turn to the Western part of the state and highlight what the TCAs of Buncombe and Mecklenburg counties want you to know.
Rule No. 5: Know Your Local Rules (Again)
Ok—we know this was Rule No. 1 in the last installation—but it bears repeating because it is the single-most noted mistake made by attorneys. Indeed, both Marc Shimberg, Trial Court Administrator for the 28th Judicial District (Buncombe County), and Meredith Davis, Caseflow Management Administrator for the 26th Judicial District (Mecklenburg County) stated that not reading the local rules is one of the most common mistakes they see attorneys make in their districts. They both stressed that attorneys’ failure to be familiar with the local rules causes a plethora of caseflow issues. For instance, Ms. Davis stated attorneys routinely do not submit their continuance requests in a timely fashion, do not include the necessary information in continuance motions, and do not ensure that motions are placed on a hearing calendar within three days of filing the motion. It is imperative that attorneys practicing in Buncombe County and Mecklenburg County take the time to read the local rules. Your TCA will thank you.
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