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Wednesday, November 28, 2012, 1:11 PM

Justice Timmons-Goodson Resigns

The Raleigh News and Observer is reporting that North Carolina Supreme Court Justice Patricia Timmons-Goodson will resign her seat from the North Carolina Supreme Court.  Justice Timmons-Goodson has served on the North Carolina Supreme Court since being appointed by then-Governor Mike Easley in 2006.

The vacancy creates an interesting situation for Governor Perdue.  The North Carolina Constitution provides the Governor with the authority to fill judicial vacancies, such as this one, that occur between elections.  However, in 2011, Governor Perdue issued an executive order delegating almost all of her authority to fill judicial vacancies to an 18 person judicial nominating commission.  The Commission has up to six weeks, unless the Governor specifies a shorter time, to nominate three individuals to fill the vacancy.  The Governor, after allowing a period for public comment, must choose one of the three nominees to fill the vacancy.

Given that only slightly more than four weeks remain in Perdue's time in office, there is an awful lot of work that needs to be done to fill the vacancy prior to Governor-elect Pat McCrory taking office.  Upon taking office, McCrory will need to decide if he wants to allow the Executive Order, which claims to be binding on future governors, and the judicial nominating commission to remain in place, rescind the executive order and make the appointment on his own, or replace it with a method of judicial selection of his own choosing.


Some question has arisen whether the Judicial Nominating Commission is advisory or mandatory.

The final Whereas clause in the Executive Order provides as follows (emphasis is mine):

WHEREAS, it is my belief that the State of North Carolina can best achieve this goal by establishing a judicial screening commission composed of outstanding lawyers and laypersons from all quarters of the State, to assist me in exercising these important constitutional duties.

However, the body of the Executive Order, which actually implements this purpose, states as follows (again, emphasis mine):

Section 1. Purpose and Scope of this Executive Order
On and after July 1, 2011, when a vacancy occurs in the office of ... Associate Justice of the Supreme Court ... the Judicial Nominating Commission established by this Order shall nominate, from among applicants for appointment to any such vacancy, the three persons it determines most qualified to fill the vacancy, and the Governor will appoint one of those persons to the position....
The use of the words "shall" and "will" instead of "may" tend to indicate that the Governor must utilize the Commission process to fill the vacancy, the Commission must nominate three people for the vacancy, and the Governor must appoint one of the Commission's three nominees to fill the vacancy.

Wednesday, November 21, 2012, 7:02 PM

COA: Rule 60(b) Motion Cannot Be Used to Attack An Order That a Party Failed to Appeal

In Hodgin v. United Community Bank, the COA emphasized the importance of the proper procedure for appealing a final order entered by the trial court.

The Hodgins took out two loans from Community Bank to finance construction of a home on a parcel of land they owned.  The Hodgins only intended for the 1.62 acres of that parcel to serve as collateral for the loans, but the Deed of Trust included an adjacent 2.09 acre tract of land as well.  The Hodgins failed to make their loan payments, and the bank agreed to refinance both loans with a new deed of trust.  Again the Hodgins intended for the deed of trust to only go to the 1.62 parcel of land, but it in fact encumbered the 2.09 acre tract as well.
The Hodgins discovered this alleged error, and the bank executed a release deed, but that deed actually only released the 2.09 acre tract of land from the first deed of trust, which was no longer in effect due to the second deed of trust.
The Hodgins again defaulted on the loan, and the bank foreclosed on both parcels of land.  The Hodgins brought suit against the bank, claiming that it led them to believe that the 2.09 acre tract had been released from the more recent deed of trust.
The bank filed a motion to compel arbitration, and the Hodgins agreed to arbitrate the matter.  The arbitrator found in favor of the Hodgins, holding that the parties did not intend to include the 2.09 acre parcel as collateral for any of the loans, and awarded them the fair market value of the 2.09 acres.  The court confirmed the arbitration award, and the Hodgins filed a motion for appropriate relief from that order pursuant to Rule 60(b).   The trial court granted that motion, vacating the arbitration award and granting the Hodgins a de novo trial on all of their claims.
The COA reversed the trial court’s order granting the motion for appropriate relief, finding that such a motion was an improper substitute for a notice of appeal from the order confirming the arbitration award, and that “a Rule 60(b) motion cannot in any circumstances be used to collaterally attack a final order from which a party chose not to appeal.”  A timely notice of appeal or a motion pursuant to Rule 59(a)(8) (not Rule 60(b)) was the proper method for seeking relief for errors of law.  The COA also noted that the trial court’s order granting the motion for appropriate relief was improper because Rule 60(b) only allows for such relief for newly discovered evidence.  Here, the evidence asserted to be “new” by the Hodgins was previously known to them and could have been introduced during arbitration, but wasn’t. 

Tuesday, November 20, 2012, 2:00 PM

COA Opinions - Tuesday, November 20

Today the NC Court of Appeals released 18 published opinions, seven criminal, two juvenile, and the rest civil. We'll be back shortly with discussions of a few of these cases.
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