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Wednesday, July 21, 2010, 9:50 AM

Wynn And Diaz Nominations Stuck In Senate

NC's 2 nominees to the 4th Circuit are still stuck in the Senate; to read more, click here.

Tuesday, July 20, 2010, 8:56 PM

COA: Arbitration Award Settling Dispute Between Insurers Does Not Bar Action By an Insured Who Was Not Involved In the Arbitration

Today the COA held that an prior arbitration award concluding that an insured was not negligent did not preclude Plaintiff's negligence action where the arbitration was between two insurance companies and Plaintiff was not involved in the arbitration. The case is Whitlock v. Triangle Grading Contractors Development, Inc..

Plaintiff was in a car accident with a truck owned by defendant Triangle Grading. Plaintiffs' insurance carrier, Liberty Mutual, filed a claim with Defendants' insurance carrier, Frankenmuth, requesting reimbursement for the funds it had paid plaintiff as a result of his insurance claim stemming from the car accident. Frankenmuth denied the claim and the dispute went to arbitration, with the panel returning a decision in favor of Frankenmuth, concluding that Frankenmuth's insured did not negligently cause the accident that injured Plaintiff. Defendants claimed they were entitled to summary judgment because the arbitration award in Frankenmuth's favor precluded Plaintiff's suit on res judicata grounds.

The COA held that nonparties to a prior arbitration may use an arbitration award to bind an adverse insured party in a subsequent proceeding if the adverse party or its privy was a party to the arbitration and had a full and fair opportunity to litigate the same issue in the earlier proceeding. The COA concluded that because Plaintiff was not a party to the arbitration agreement, did not seek to benefit directly from the arbitration, and did not actively participate in or control the arbitration, that Plaintiff's negligence action was not barred by the prior arbitration proceeding.

Quick Notes on a Few Cases

Here are some quick notes on a few of today’s opinions

Hodges v. Moore

After the trial court granted the defendant’s motion for summary judgment, the plaintiff requested that the trial court make findings of fact and conclusions of law regarding its ruling. The plaintiff appealed the trial court’s refusal to make the requested findings of fact and conclusions of law.

The Court of Appeals affirmed the trial court’s decision and held that “the provisions of Rule 52 of the Rules of Civil Procedure do not apply to orders granting summary judgment pursuant to Rule 56.” The Court reasoned the trial court acted appropriately in refusing to issue the findings of fact because “[t]here is no necessity for findings of fact where facts are not at issue, and summary judgment presupposes that there are no triable issues of material fact.”

Griffith v. Curtis

In late 2007, the plaintiff initiated divorce proceedings against the defendant. As part of the proceedings, the plaintiff sought an unequal distribution of marital property in her favor. On May 30, 2008, after pre-trial mediation, the parties entered into a Memorandum of Judgment regarding a variety of outstanding issues, including the distribution of marital assets. On June 11, 2008, a Consent Judgment that mirrored the terms of the Memorandum of Judgment was entered by the court.

After a dispute arose over the terms of the Consent Judgment, the plaintiff filed a motion for relief from judgment on the grounds that the Consent Judgment was unconscionable. The trial court denied the motion for relief and plaintiff appealed.

The Court of Appeals held that a party may not have a consent judgment set aside on the basis of unconscionability. Instead, “[p]arties seeking to set aside a consent judgment are limited to proving lack of consent, fraud, mutual mistake, or unilateral mistake under some misconduct.”

McCraw v. Aux

This case, involving an action to enforce protective covenants, yielded two interesting points regarding the impact of failing to join necessary parties to a suit. First, trial courts have a responsibility to raise the issue of failure to join a necessary party even if the issue is not raised by one of the parties to the proceeding. Second, any judgment rendered without all the necessary parties being joined in a case is “null and void.”

New COA Cases Today

The Court of Appeals published 39 opinions today. More on these cases later.

Tuesday, July 06, 2010, 1:54 PM

COA Finds No Agreement In Statute Of Frauds Case

In Hanson v. Legasus of N.C., LLC, (09-1155), the trial court ruled against the plaintiffs because an agreement for the payment of money like theirs must be in writing but wasn't. The COA affirmed -- not because the parties' agreement was not in writing, but because it found no agreement at all.

In Hanson, the trial court essentially assumed that an agreement existed, without laying out its terms. The COA looked to the record and found some emails and letters but nothing memorializing that the parties came to a meeting of the minds as to the exact terms of the purported agreement for the payment of money. And without a contract, the statute of frauds is a non-issue.

New COA Cases Today

The COA published big today, with 31 cases, 19 of them civil. More on these soon.
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