On May 8, 2020, Julian Mann, Chief Administrative Law Judge of the Office of Administrative Hearings, issued an order regarding the timeliness of contested case petition filings. Read the order below or here. There are other orders related to the COVID-19 emergency on the OAH website here.
State of North Carolina
Office of Administrative Hearings
1711 New Hope Church Rd
Raleigh, NC 27609
On March 19, 2020, The Honorable Cheri Beasley, Chief Justice of the North Carolina Supreme Court, issued an order pursuant to N.C.G.S. § 7A-39(b)(1) stating that “catastrophic conditions resulting from the public health threat posed by COVID-19 exist in all counties of this state.” The Chief Justice’s Order of March 19, 2020, was set to expire at the close of business on April 17, 2020. On April 13, 2020, The Honorable Cheri Beasley, Chief Justice of the North Carolina Supreme Court, issued an order pursuant to N.C.G.S. § 7A-39(b)(1) stating that “catastrophic conditions resulting from the COVID-19 outbreak have existed and continue to exist in all counties of this state.” The Chief Justice’s Order of April 13, 2020, is set to expire at the close of business on June 1, 2020, with the caveat that “[a]dditional emergency orders or directives under N.C.G.S. § 7A-39(b) may be entered as necessary to support the continuing operation of essential court functions.”
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Administrativehttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngAdministrative2020-05-12 13:15:042020-05-13 09:40:49Contested Case Petition Filing Time
Formed by Chief Justice Beasley, the COVID-19 Judicial Task Force (Task Force) comprised of members of our judiciary, other court officials, and members of the bar has met twice to anticipate, identify, and discuss issues related to the transition of our courts back to full operations. The next meeting is scheduled for 2 p.m., May 13, 2020, and may be livestreamed. Additional Task Force information is available.
While the Task Force addresses issues statewide, our judicial districts are working tirelessly to develop plans and procedures for the resumption of local court functions in keeping with the directives of our Chief Justice, our Governor, and health care advisors. As judicial districts make information available, we will share it with this practice section. The statewide judicial conferences remain scheduled for the week of June 15, 2020.
Plaintiff filed a complaint for domestic violence protective order, to which she attached 12 pages of detailed allegations against Defendant. At the hearing, Defendant moved to dismiss the complaint for failure to state a claim. Defendant argued that the Court of Appeals decision in Martin v. Martin dictated a certain level of specificity in the pleadings, and that the pleading here failed because the attached pages were not referenced in the form complaint. Defendant did not argue that he did not receive the attachment pages or that he was unable to respond to the allegations (he had, in fact, filed an answer in which he responded to the allegations)—he simply argued that because the form complaint itself did not include language such as “see attached,” there was no way to tell whether the attachments were indeed part of the verified pleading. The trial court determined that based upon the Martin decision, plaintiff’s complaint should be dismissed because plaintiff’s allegations were not sufficiently specific to afford defendant due process. Plaintiff appealed.
The parties’ original custody order was entered in 2016 and granted custody to Mother. Father had limited visitation because at the time that order was entered, Father had ongoing mental health issues, an unhealthy relationship with his girlfriend, and an unstable living situation. In 2018, the trial court entered an amended custody order which kept physical custody with Mother, but which gave Father more visitation time. Mother appealed.
On appeal, Mother argued Father failed to meet his burden of showing a substantial change in circumstances because there had been no adverse change in her care of the children. The Court of Appeals affirmed the trial court’s order. In reaching its decision, the Court of Appeals noted that the trial court’s 2018 order included findings of many positive changes regarding Father and that a modification may be based upon positive findings of changed circumstances.
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
Contested Case Petition Filing Time
Administrative LawOn May 8, 2020, Julian Mann, Chief Administrative Law Judge of the Office of Administrative Hearings, issued an order regarding the timeliness of contested case petition filings. Read the order below or here. There are other orders related to the COVID-19 emergency on the OAH website here.
State of North Carolina
Office of Administrative Hearings
1711 New Hope Church Rd
Raleigh, NC 27609
On March 19, 2020, The Honorable Cheri Beasley, Chief Justice of the North Carolina Supreme Court, issued an order pursuant to N.C.G.S. § 7A-39(b)(1) stating that “catastrophic conditions resulting from the public health threat posed by COVID-19 exist in all counties of this state.” The Chief Justice’s Order of March 19, 2020, was set to expire at the close of business on April 17, 2020. On April 13, 2020, The Honorable Cheri Beasley, Chief Justice of the North Carolina Supreme Court, issued an order pursuant to N.C.G.S. § 7A-39(b)(1) stating that “catastrophic conditions resulting from the COVID-19 outbreak have existed and continue to exist in all counties of this state.” The Chief Justice’s Order of April 13, 2020, is set to expire at the close of business on June 1, 2020, with the caveat that “[a]dditional emergency orders or directives under N.C.G.S. § 7A-39(b) may be entered as necessary to support the continuing operation of essential court functions.”
Read more
COVID-19 Update
Litigation SectionFormed by Chief Justice Beasley, the COVID-19 Judicial Task Force (Task Force) comprised of members of our judiciary, other court officials, and members of the bar has met twice to anticipate, identify, and discuss issues related to the transition of our courts back to full operations. The next meeting is scheduled for 2 p.m., May 13, 2020, and may be livestreamed. Additional Task Force information is available.
While the Task Force addresses issues statewide, our judicial districts are working tirelessly to develop plans and procedures for the resumption of local court functions in keeping with the directives of our Chief Justice, our Governor, and health care advisors. As judicial districts make information available, we will share it with this practice section. The statewide judicial conferences remain scheduled for the week of June 15, 2020.
Read more
Case Law Update: DVPO
Family Law SectionQuackenbush v. Groat, COA19-415, decided May 5, 2020 (DVPO)
Plaintiff filed a complaint for domestic violence protective order, to which she attached 12 pages of detailed allegations against Defendant. At the hearing, Defendant moved to dismiss the complaint for failure to state a claim. Defendant argued that the Court of Appeals decision in Martin v. Martin dictated a certain level of specificity in the pleadings, and that the pleading here failed because the attached pages were not referenced in the form complaint. Defendant did not argue that he did not receive the attachment pages or that he was unable to respond to the allegations (he had, in fact, filed an answer in which he responded to the allegations)—he simply argued that because the form complaint itself did not include language such as “see attached,” there was no way to tell whether the attachments were indeed part of the verified pleading. The trial court determined that based upon the Martin decision, plaintiff’s complaint should be dismissed because plaintiff’s allegations were not sufficiently specific to afford defendant due process. Plaintiff appealed.
Read more
Case Law Update: Custody Modification
Family Law SectionPadilla v. Whitley de Padilla, COA19-478, decided May 5, 2020 (Custody Modification)
The parties’ original custody order was entered in 2016 and granted custody to Mother. Father had limited visitation because at the time that order was entered, Father had ongoing mental health issues, an unhealthy relationship with his girlfriend, and an unstable living situation. In 2018, the trial court entered an amended custody order which kept physical custody with Mother, but which gave Father more visitation time. Mother appealed.
On appeal, Mother argued Father failed to meet his burden of showing a substantial change in circumstances because there had been no adverse change in her care of the children. The Court of Appeals affirmed the trial court’s order. In reaching its decision, the Court of Appeals noted that the trial court’s 2018 order included findings of many positive changes regarding Father and that a modification may be based upon positive findings of changed circumstances.
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