BLOGS: North Carolina Appellate Blog
Friday, February 07, 2014, 10:05 AM
Friday, November 08, 2013, 7:14 PM
COA: Admission by Defendants That They Received Summons and Complaint is Sufficient for Proper Service
On Tuesday the Court of Appeals held that an individual defendant can be properly served even if they don't accept service of the summons and complaint; the defendant just needs to personally receive it from the party who was actually served. The case is Washington v. Cline et al.
Plaintiff Frankie Washington was imprisoned for six years on charges of assault with a dangerous weapon, attempted robbery with a dangerous weapon, assault and battery, and attempted first-degree sex offense, and these charges were vacated by the COA due to violations of Washington’s right to a speedy trial. Frankie Washington and his son Frankie Jr. brought multiple claims against various officials of Durham, the City of Durham, and the State of North Carolina related to Frankie Sr.'s imprisonment, including constitutional violations, malicious prosecution, negligence, negligent and intentional infliction of emotional distress, conspiracy, and supervisory liability.
Department for use in its operations.” All these defendants admitted in affidavits that they personally received the summons and complaint.
Plaintiffs appealed the trial court's dismissal of their Complaint. Defendants argued that a designated delivery service must personally serve natural persons or service agents with specific authority to accept service with the summons and complaint in order to sufficiently “deliver to the addressee" under Rule 4(j)(1)(d) and N.C. Gen. Stat. § 1-75.10(a)(5). The COA found that the plain language of N.C. Gen. Stat. § 1-75.10 allows a plaintiff to prove service by designated delivery service with evidence that copies of the summons and complaint were “in fact received” by the addressee, and it's not necessary to show that the delivery service agent personally served the individual addressee. Thus, the Court noted, "the crucial inquiry is whether addressees received the summons and complaint, not who physically handed the summons and complaint to the addressee." The COA further noted that the fact that the legislature failed to include a personal delivery requirement in Rule 4(j)(1)(d) when it did so in other subsections throughout the statute indicated its intention to exclude it, and Plaintiffs provided sufficient evidence in the form of delivery receipts and affidavits pursuant to Section 1-75.10 to prove that all defendants-appellees except the City were properly served under Rule 4(j)(1)(d). The COA unanimously found that Plaintiffs properly served all defendants except the City of Durham, and reversed the trial court’s dismissal of the claims against them. The summons and complaint issued to the City were not addressed to either the mayor, city manager, or clerk as required by Rule 4(j)(5)(a), and were instead addressed to the City Attorney, which was insufficient to confer jurisdiction over the City. The only evidence plaintiffs provided that the City was properly served was a newspaper article wherein the mayor mentioned the lawsuit (which could indicate that he in fact received the summons and complaint). Even though the mayor had actual notice of the lawsuit, this wasn't enough to give the Court jurisdiction over the City.
Wednesday, November 06, 2013, 1:50 PM
COA: Parties Facing Dismissal of Note Enforcement Action Should Clearly Plead the Chain of Title, and Request that Any Dismissal of The Complaint be Without Prejudice.
Plaintiff First Federal Bank ("FFB") sought enforcement of two promissory notes executed by defendant Aldridge. Both of the notes identified Aldridge as the borrower and “Cape Fear Bank” as the lender. FFB was not referenced in either note. FFB attached an affidavit to its complaint that included a statement from an employee familiar with the books and records related to the notes, and that the notes were in default. The trial court dismissed the Complaint with prejudice on the grounds that FFB had failed to sufficiently plead that it was the holder.
The Court found that "evidence that a plaintiff is the holder of a promissory note, or has otherwise acquired the rights of the holder, is an essential element of a cause of action upon such note." Because neither the text of the complaint nor the affidavit indicated that FFB had acquired the debt from Cape Fear Bank or was otherwise entitled to enforce them as a holder in due course, the COA found that FFB had not demonstrated its right to enforce promissory notes which were executed by Aldridge with a third party bank, and affirmed the trial court's dismissal of the Complaint. The COA also noted that if FFB had been a payee or endorsee of the notes that were attached to the Complaint, it would have been the prima facie owner and holder. Here, FFB did not plead that the notes had been assigned or transferred to it from the third party bank.
FFB also argued that dismissing its Complaint with prejudice was inequitable, and that it should have had an opportunity to amend the Complaint. Noting that the decision to dismiss an action with or without prejudice is subject to an abuse of discretion standard, and that the party whose claim is being dismissed has the burden to show it deserves a "second chance," the COA found that the dismissal was proper because the record contained no evidence that Plaintiff sought to amend the complaint during the hearing or afterward, nor did it move for a dismissal without prejudice.
Tuesday, July 16, 2013, 11:48 AM
Court of Appeals Holds Michael Peterson Entitled to New Trial
Following a highly publicized trial, Peterson was convicted in 2003 of the first degree murder of his wife, Kathleen Peterson, and was sentenced to life in prison. The State's theory at trial was that Peterson intentionally killed his wife by striking her repeatedly with a fireplace blowpoke, causing her to fall down a staircase. Peterson, on the other hand, contended that his wife died as a result of an accidental fall.
In February 2011, Peterson filed a motion for appropriate relief ("MAR") based on alleged newly discovered evidence concerning misrepresentations made at trial by one of the State's key witnesses, State Bureau of Investigation Agent Duane Deaver, who had testified as an expert in bloodstain pattern analysis. The newly discovered evidence concerned, among other things, Agent Deaver's representations regarding the number of cases involving bloodstain analysis in which he had participated, the number of reports he had written in cases involving bloodstain analysis, the number of times he had qualified as an expert witness in bloodstain analysis, and the number of times he had been to a potential crime scene involving an alleged accidental fall. At the conclusion of the hearing on the MAR in December 2011, the trial court granted the MAR, vacated Peterson's conviction, and granted him a new trial. The State appealed to the Court of Appeals.
On appeal, the State contended in part that Peterson was not entitled to a new trial because he failed to establish all of the prerequisites needed to prevail on a MAR based on newly discovered evidence. There are seven elements which a defendant must establish in order to prevail on a MAR:
- that the witness or witnesses will give newly discovered evidence,
- that such newly discovered evidence is probably true,
- that it is competent, material and relevant,
- that due diligence was used and proper means were employed to procure the testimony at the trial,
- that the newly discovered evidence is not merely cumulative,
- that it does not tend only to contradict a former witness or to impeach or discredit him, and
- that it is of such a nature as to show that on another trial a different result will probably be reached and that the right will prevail.
Sixth, the evidence constituted much more than impeachment evidence. The Court held that due to the importance of Agent Deaver's testimony, the evidence concerning his qualifications would have completely undermined the credibility of the State’s entire theory of the case, as he was the only witness to describe to the jury how he believed Peterson killed his wife, and was the only witness to testify that the bloodstains indicated that Peterson had tried to not only clean up the scene but was also close to his wife at the time she sustained her injuries. Finally, as to the seventh element, the Court held that had Agent Deaver's testimony been undermined, the jury would probably not have unanimously agreed on a guilty verdict based on this evidence. Therefore, the Court held that the trial court had not erred in vacating Peterson's conviction and ordering a new trial.
The Court of Appeals also rejected the State's argument that if the Court did not reverse the MAR order, it should, in the alternative, remand the case for a new hearing. The State argued that the trial court erred in precluding the State from asking specific questions of Peterson's experts and in granting Peterson's motion in limine regarding certain experts the State intended to call. However, the Court of Appeals held that the State was trying to collaterally establish that the jury would have reached the same verdict based on evidence not introduced at trial, and the trial court had properly excluded this evidence because it was beyond the scope of the MAR hearing.
Accordingly, the Court affirmed the decision of the trial court.
Court of Appeals Opinions
Wednesday, June 19, 2013, 8:33 AM
North Carolina Supreme Court Clarifies Rule Regarding "Initiation of Proceedings" in Context of Malicious Prosecution Claim
Tuesday, May 21, 2013, 2:28 PM
Court of Appeals Opinions
Thursday, May 09, 2013, 7:23 PM
Womble Carlyle Attorneys Obtain Reversal of Judgment for Client
Yesterday the Court of Appeals reversed a jury verdict as to two defendants in a breach of contract case and granted a new trial to the remaining defendant on the issue of damages. The case is Scheerer v. Fisher. Womble Carlyle attorneys Burley Mitchell and Bob Numbers represented Highland Forest Partners in this appeal.
Scheerer filed suit to obtain the commission he believed he was entitled to as a result of this sale. At trial, the jury found that there was a breach of contract by Fisher, Renaissance Ventures, and Highland Partners and awarded the plaintiffs $400,000.
After the trial, Highland Forest Partners retained Womble Carlyle to represent it in the appellate process. The Court of Appeals found that the trial court erred in denying Renaissance Ventures' and Highland Partners' motion for a judgment in their favor notwithstanding the verdict because there was insufficient evidence of a breach of contract by those defendants - Renaissance properly terminated the initial purchase agreement, and the only claim alleged against Highland Partners in Plaintiffs' complaint was for a breach of a contract implied in law, an issue which the jury did not reach. The opinion represents a complete victory for Renaissance Ventures and Highland Forest Partners.
The COA did find that there was sufficient evidence to uphold the jury verdict with respect to Fisher, even though he terminated the initial purchase agreement that provided Scheerer with a two percent commission, and the final purchase agreements did not contain such a provision. Fisher testified that Scheerer introduced him to the properties and that he encouraged Scheerer to seek a commission from the seller. The COA held that the testimony "provided more than a scintilla of evidence that plaintiffs and Fisher had an express agreement that Fisher would procure Scheerer’s commission for the purchase of the properties and that he failed to do so."