Prior to the parties’ separation, Wife filed a complaint for divorce from bed and board and equitable distribution. Husband filed an answer to the complaint and a notice of “intent to file for equitable distribution.” In his prayer for relief, Husband asked that he “be allowed to file for equitable distribution upon separation of the parties.” The parties then separated, and after separation, Husband filed what he captioned as an “amended counterclaim for equitable distribution” and asserted his equitable distribution claim. Wife then filed a motion asking that the trial court dismiss both parties’ equitable distribution claims. Husband filed a motion seeking dismissal of Wife’s equitable distribution claim. The trial court dismissed Wife’s claim, finding that Wife’s claim was asserted prior to the date of separation. The trial court did not dismiss Husband’s equitable distribution claim. In denying dismissal of Husband’s equitable distribution claim, the court found that Husband’s notice of intent to file for equitable distribution was not a counterclaim for equitable distribution and so the “amended counterclaim” for equitable distribution was not actually an amended claim (that would have related back to the date of the filing of the claim being amended), but was an initial claim, asserted after the date of separation. The trial court conducted an equitable distribution trial and entered its order, which Wife appealed.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00FamilyLawhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngFamilyLaw2020-05-11 10:17:342020-05-12 12:59:50Case Law Update: Equitable Distribution
Recently, Smith Debnam introduced attorney Liz Blackwell, who joined Smith Debnam alumnus and “rejoinder,” Ron Jones, in the newly staked out Charleston, SC, office. Church Street in Charleston may be known for the many beautiful old churches. But move over old money; there’s a new wedding venue in the historic district!
Zoom on. You see, the first closing held in the new Smith Debnam office wasn’t a land purchase or a commercial loan. It was Liz’s contract of marriage! Conducted by Charleston County Probate Judge, Irv Condon, via a Zoom conference, Liz and hubby Graeme Ross, a Canadian physician currently completing a critical care fellowship in Kingston, Ontario, decided to go ahead and tie the knot. But there wasn’t a knot to be seen in a black tie or bow tie. Graeme wore scrubs as did three of his medical buddies, who all connected by videoconference. Liz was radiant in the Smith Debnam conference room, which, by the way, needs some wall hangings. No hand-holding, no eye gazing, no kissing of the bride. But a lovely, sweet, albeit quick ceremony warmed the hearts of those few “in attendance” and those with whom the video has been shared. Afterwards, the Smith Debnam Charleston office folks enjoyed a champagne toast, and the groom was back to the important work of providing health care.
Each year the American Bar Association (ABA) invites young lawyers from throughout the nation to apply for the highly competitive and highly coveted Young Lawyers Division (YLD) Scholars Program. The principal objective of the YLD Scholars Program is to increase the participation of minority, solo/small firm, government, private sector, and military service attorneys in the Young Lawyers Division with hopes of increasing diversity in leadership positions within the ABA YLD. To accomplish this goal, the ABA provides YLD Scholars with funding to attend ABA conferences.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBA YLDhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBA YLD2020-05-11 09:09:572020-05-11 14:55:592019-2020 ABA YLD Scholars: A Year in Review
This week is Hurricane Preparedness Week (May 3-9), and although COVID-19 is dominating our news channels and conversations, we should not let it overshadow the upcoming hurricane season, which begins June 1, 2020. COVID-19 has certainly taken a toll on the State of North Carolina, with the most recent NCDHHS laboratory confirmed case count at 12,256. On May 5, Gov. Cooper announced that North Carolina will start Phase I of a reopen plan on Friday, May 8. This announcement comes almost two weeks after the governor first announced the three-phase plan. The United States has not faced an infectious disease disaster like COVID-19 since the 2009 H1N1 influenza pandemic; while our nation and state continue to navigate the COVID-19 pandemic response, North Carolina must also prepare for hurricane season.
Hurricanes and severe tropical storms have historically wreaked havoc along the North Carolina coast. These natural disasters are sudden, catastrophic, and have a disparate impact on vulnerable populations, and this season’s hurricane activity is forecasted to be above normal. The Colorado State University Tropical Meteorology Project recently published a forecast of the 2020 Atlantic seasonal hurricane activity that predicted sixteen named storms, eight hurricanes, and four major hurricanes.
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.pngNCBARBLOG2020-05-08 14:57:262020-05-08 16:45:01Prioritize Preparedness: Hurricane Season Preparation During a Pandemic
On March 27, the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act introduced a number of new provisions to assist businesses and individuals during the COVID-19 pandemic. One such provision adjusts the rules of net operating loss (“NOL”) carrybacks.
Before 2018, NOLs of a business or individual could be carried back two years and carried forward twenty years. When carried forward, NOLs at that time were allowed to offset 100% of taxable income. The Tax Cuts and Jobs Act of 2017, however, disallowed NOL carrybacks for all post-2017 losses, extended the twenty-year carryforward to an unlimited carryforward, but limited the NOL offset to 80% of taxable income.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00TAXhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngTAX2020-05-08 12:01:162020-05-08 12:51:57The NOL Carryback Rules Under the CARES Act
An anonymous show of hands: who has done a local TV news segment in which you and your client discuss their lawsuit? Maybe you state the employer is racist or a specific manager was a predator. Now, a second show of hands: how many have considered the potential for such a statement to lead to a defamation lawsuit against you or your client? If not, I recommend that you do.
In January 2018, Cardinal Innovations Healthcare Solutions hired Kurt Meyers and McGuireWoods to conduct an independent internal investigation into the conduct of its former CEO, Richard Topping. After Meyers presented his findings to Cardinal, it filed a lawsuit against Topping seeking the return of a severance payment. Less than two hours after filing suit, Cardinal held a press conference at which Meyers discussed his findings with the media. Meyers’ statements and presentation at the press conference essentially “mirrored” the allegations in the complaint. Topping v. Meyers, No. COA19-618, (N.C. Ct. App. Mar. 17, 2020).
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Laborhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngLabor2020-05-08 07:55:262020-05-08 12:09:32If You Can’t Say Something Nice, Then Don’t Say Anything
In the time of COVID-19, Electronically Stored Information and efficient ways to retrieve it are important considerations in any discussion regarding litigation preparation, especially when it comes to discovery planning. However, keep in mind that social media content is easy to create, but can be difficult to use in litigation and you may have to explain the importance of this type of evidence to judges and juries.
A little planning will save you time and heartache when it comes to social media discovery. With one exception, before your law office seeks to obtain social media posts by a party or witnesses, you’ll want to create a customized plan of action. Your plan should consider the potential volume of the material, where it may be stored, any confidentiality or security concerns, and any other unique issues presented by the case. Moreover, it’s important your plan be both defensible and cost effective.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Paralegalshttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngParalegals2020-05-07 21:31:042020-05-08 09:56:03Social Media Discovery Requires a Plan (and Here’s One Below)
This article was originally published on the Elder & Special Needs Section blog.
[Editor’s note: We appreciate the substantial contributions of John H. Griffing of Griffing Leazer, PLLC in Gastonia and Kathleen R. Rodberg of McGuire Wood & Bissette in Asheville in preparing this post for timely publication. Please look for a separate post by Kathleen R. Rodberg on guardianship changes shortly.]
[Additional Writer and Editor’s note: When assisting clients with estate planning documents this statute does not alter legal precedent requiring original wet signatures and original wet notarizations on most documents. This blog only focuses on the steps a notary would take in completing a remote video notarization when an original wet signature is required. Please reference the provisions of G.S. 10B-25(e)(1) for direction on remote video notarization when an original wet signature and original wet notarization are not required for the document.]
Attorneys from the Elder and Special Needs Law Section of the North Carolina Bar Association in collaboration with NC NAELA, other sections of the North Carolina Bar Association and its leadership, other interested parties, and the North Carolina General Assembly have been working to introduce the legislation that passed on May 2, 2020, and was signed into law by Gov. Cooper on May 4, 2020, authorizing remote notarization, remote witnessing, and execution of health care directives without witnesses during the state of emergency. There were a lot of compromises. Ultimately, we have legislation that will aid you in providing safe assistance to your clients during the COVID-19 public health crisis.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00ElderLawhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngElderLaw2020-05-07 15:11:342020-05-12 10:14:07Emergency Remote Notary, Witnesses and Execution of Health Care Directives Without Witnesses During Emergency
Full Commission Section and General / Administrative Updates
In response to the COVID-19 pandemic, the Commission has instituted several new policies to help protect public health and safety, including new policies for hearings and mediations and new policies for accepting electronic signatures on agreements and accepting written affirmations without notarization. These new policies are posted on the home page of the Commission’s website and under the Latest News tab (Breaking News & Important Announcements).
Attorneys also can visit the Commission’s website to review additional COVID-19 Response postings addressing issues such as telehealth coverage and billing, secure leave issues, and the best way to reach Commission staff during this period of time when staff is working remotely to the greatest extent possible.
All Full Commission oral arguments are being conducted by teleconference due to the COVID-19 pandemic. The Full Commission panel chair is providing the parties with a toll-free number and access code to dial into the conference call. All oral arguments that are normally recorded continue to be recorded by a court reporter.
A notice of proposed rulemaking by the Commission was published in the April 15, 2020 North Carolina Register. A link to the notice of proposed rulemaking can be found at https://www.ic.nc.gov/efilingandotheramendments.html. A public hearing on the proposed rule amendments will be held on Wednesday, May 6, 2020 at 2 p.m. Out of an abundance of caution and to address protective measures to help prevent the spread of COVID-19, the public hearing will be held via teleconference only instead of being held in person. The teleconference number is 1-888-363-4735 and the access code is 4465746. Comments may be submitted through June 15, 2020 to Gina Cammarano, Rulemaking Coordinator, by email at [email protected] or by U.S. mail at 1240 Mail Service Center, Raleigh, NC 27699-1240.
Industrial Commission employees are presently working remotely to the greatest extent possible. The Commission remains open for business but encourages you to contact Commission staff by email instead of by phone. Commission employees working remotely have easy and quick access to their email inbox on their laptops and other devices. By contrast, they do not have real time access to office phone calls when working remotely. Email addresses can be found by going under the “Sections” tab on the Commission’s Home Page and clicking on the appropriate section of the Commission.
The NCBA YLD Diversity and Inclusion Committee has interviewed several diverse attorneys about their experiences in the law. New attorneys face many challenges, including finding mentors, fitting in, and finding their place—and diverse attorneys are no different.
Here is one diverse attorney’s perspective on how she is overcoming these challenges.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBA YLDhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBA YLD2020-05-06 16:02:212023-06-20 12:48:56An Interview With Katie Wong
Case Law Update: Equitable Distribution
Family Law SectionBest v. Staton, COA19-638, May 5, 2020
Prior to the parties’ separation, Wife filed a complaint for divorce from bed and board and equitable distribution. Husband filed an answer to the complaint and a notice of “intent to file for equitable distribution.” In his prayer for relief, Husband asked that he “be allowed to file for equitable distribution upon separation of the parties.” The parties then separated, and after separation, Husband filed what he captioned as an “amended counterclaim for equitable distribution” and asserted his equitable distribution claim. Wife then filed a motion asking that the trial court dismiss both parties’ equitable distribution claims. Husband filed a motion seeking dismissal of Wife’s equitable distribution claim. The trial court dismissed Wife’s claim, finding that Wife’s claim was asserted prior to the date of separation. The trial court did not dismiss Husband’s equitable distribution claim. In denying dismissal of Husband’s equitable distribution claim, the court found that Husband’s notice of intent to file for equitable distribution was not a counterclaim for equitable distribution and so the “amended counterclaim” for equitable distribution was not actually an amended claim (that would have related back to the date of the filing of the claim being amended), but was an initial claim, asserted after the date of separation. The trial court conducted an equitable distribution trial and entered its order, which Wife appealed.
Read more
New Office! Wedding Venue! Say What?
Featured PostsBy Bettie Kelley Sousa
Recently, Smith Debnam introduced attorney Liz Blackwell, who joined Smith Debnam alumnus and “rejoinder,” Ron Jones, in the newly staked out Charleston, SC, office. Church Street in Charleston may be known for the many beautiful old churches. But move over old money; there’s a new wedding venue in the historic district!
Zoom on. You see, the first closing held in the new Smith Debnam office wasn’t a land purchase or a commercial loan. It was Liz’s contract of marriage! Conducted by Charleston County Probate Judge, Irv Condon, via a Zoom conference, Liz and hubby Graeme Ross, a Canadian physician currently completing a critical care fellowship in Kingston, Ontario, decided to go ahead and tie the knot. But there wasn’t a knot to be seen in a black tie or bow tie. Graeme wore scrubs as did three of his medical buddies, who all connected by videoconference. Liz was radiant in the Smith Debnam conference room, which, by the way, needs some wall hangings. No hand-holding, no eye gazing, no kissing of the bride. But a lovely, sweet, albeit quick ceremony warmed the hearts of those few “in attendance” and those with whom the video has been shared. Afterwards, the Smith Debnam Charleston office folks enjoyed a champagne toast, and the groom was back to the important work of providing health care.
Read more
2019-2020 ABA YLD Scholars: A Year in Review
Young Lawyers DivisionJonathan Bogues
Sheila Spence
By Jonathan Bogues and Sheila Spence
Each year the American Bar Association (ABA) invites young lawyers from throughout the nation to apply for the highly competitive and highly coveted Young Lawyers Division (YLD) Scholars Program. The principal objective of the YLD Scholars Program is to increase the participation of minority, solo/small firm, government, private sector, and military service attorneys in the Young Lawyers Division with hopes of increasing diversity in leadership positions within the ABA YLD. To accomplish this goal, the ABA provides YLD Scholars with funding to attend ABA conferences.
Read more
Prioritize Preparedness: Hurricane Season Preparation During a Pandemic
Featured PostsThis week is Hurricane Preparedness Week (May 3-9), and although COVID-19 is dominating our news channels and conversations, we should not let it overshadow the upcoming hurricane season, which begins June 1, 2020. COVID-19 has certainly taken a toll on the State of North Carolina, with the most recent NCDHHS laboratory confirmed case count at 12,256. On May 5, Gov. Cooper announced that North Carolina will start Phase I of a reopen plan on Friday, May 8. This announcement comes almost two weeks after the governor first announced the three-phase plan. The United States has not faced an infectious disease disaster like COVID-19 since the 2009 H1N1 influenza pandemic; while our nation and state continue to navigate the COVID-19 pandemic response, North Carolina must also prepare for hurricane season.
Hurricanes and severe tropical storms have historically wreaked havoc along the North Carolina coast. These natural disasters are sudden, catastrophic, and have a disparate impact on vulnerable populations, and this season’s hurricane activity is forecasted to be above normal. The Colorado State University Tropical Meteorology Project recently published a forecast of the 2020 Atlantic seasonal hurricane activity that predicted sixteen named storms, eight hurricanes, and four major hurricanes.
Read more
The NOL Carryback Rules Under the CARES Act
Tax SectionOn March 27, the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act introduced a number of new provisions to assist businesses and individuals during the COVID-19 pandemic. One such provision adjusts the rules of net operating loss (“NOL”) carrybacks.
Before 2018, NOLs of a business or individual could be carried back two years and carried forward twenty years. When carried forward, NOLs at that time were allowed to offset 100% of taxable income. The Tax Cuts and Jobs Act of 2017, however, disallowed NOL carrybacks for all post-2017 losses, extended the twenty-year carryforward to an unlimited carryforward, but limited the NOL offset to 80% of taxable income.
Read more
If You Can’t Say Something Nice, Then Don’t Say Anything
Labor & Employment LawAn anonymous show of hands: who has done a local TV news segment in which you and your client discuss their lawsuit? Maybe you state the employer is racist or a specific manager was a predator. Now, a second show of hands: how many have considered the potential for such a statement to lead to a defamation lawsuit against you or your client? If not, I recommend that you do.
In January 2018, Cardinal Innovations Healthcare Solutions hired Kurt Meyers and McGuireWoods to conduct an independent internal investigation into the conduct of its former CEO, Richard Topping. After Meyers presented his findings to Cardinal, it filed a lawsuit against Topping seeking the return of a severance payment. Less than two hours after filing suit, Cardinal held a press conference at which Meyers discussed his findings with the media. Meyers’ statements and presentation at the press conference essentially “mirrored” the allegations in the complaint. Topping v. Meyers, No. COA19-618, (N.C. Ct. App. Mar. 17, 2020).
Read more
Social Media Discovery Requires a Plan (and Here’s One Below)
Paralegal DivisionBy Rhiannon Fionn-Bowman
In the time of COVID-19, Electronically Stored Information and efficient ways to retrieve it are important considerations in any discussion regarding litigation preparation, especially when it comes to discovery planning. However, keep in mind that social media content is easy to create, but can be difficult to use in litigation and you may have to explain the importance of this type of evidence to judges and juries.
A little planning will save you time and heartache when it comes to social media discovery. With one exception, before your law office seeks to obtain social media posts by a party or witnesses, you’ll want to create a customized plan of action. Your plan should consider the potential volume of the material, where it may be stored, any confidentiality or security concerns, and any other unique issues presented by the case. Moreover, it’s important your plan be both defensible and cost effective.
Read more
Emergency Remote Notary, Witnesses and Execution of Health Care Directives Without Witnesses During Emergency
Business LawBy Andrew Atherton
This article was originally published on the Elder & Special Needs Section blog.
[Editor’s note: We appreciate the substantial contributions of John H. Griffing of Griffing Leazer, PLLC in Gastonia and Kathleen R. Rodberg of McGuire Wood & Bissette in Asheville in preparing this post for timely publication. Please look for a separate post by Kathleen R. Rodberg on guardianship changes shortly.]
[Additional Writer and Editor’s note: When assisting clients with estate planning documents this statute does not alter legal precedent requiring original wet signatures and original wet notarizations on most documents. This blog only focuses on the steps a notary would take in completing a remote video notarization when an original wet signature is required. Please reference the provisions of G.S. 10B-25(e)(1) for direction on remote video notarization when an original wet signature and original wet notarization are not required for the document.]
Attorneys from the Elder and Special Needs Law Section of the North Carolina Bar Association in collaboration with NC NAELA, other sections of the North Carolina Bar Association and its leadership, other interested parties, and the North Carolina General Assembly have been working to introduce the legislation that passed on May 2, 2020, and was signed into law by Gov. Cooper on May 4, 2020, authorizing remote notarization, remote witnessing, and execution of health care directives without witnesses during the state of emergency. There were a lot of compromises. Ultimately, we have legislation that will aid you in providing safe assistance to your clients during the COVID-19 public health crisis.
Read more
North Carolina Industrial Commission April 2020 Quarterly Update
Workers' Compensation SectionFull Commission Section and General / Administrative Updates
Read more
An Interview With Katie Wong
Young Lawyers DivisionThe NCBA YLD Diversity and Inclusion Committee has interviewed several diverse attorneys about their experiences in the law. New attorneys face many challenges, including finding mentors, fitting in, and finding their place—and diverse attorneys are no different.
Here is one diverse attorney’s perspective on how she is overcoming these challenges.
Read more