Damages Recoverable in a North Carolina Wrongful Eviction Claim | Unfair and Deceptive Trade Practices
January 29, 2013
All North Carolina residential landlords are required to use the statutory “summary ejectment” procedure to evict a tenant that has breached a residential lease. A summary ejectment action permits the landlord to quickly and peaceably obtain possession of the property. If, contrary to law, a landlord uses “self-help” and forcibly evicts a tenant, or retaliates for some lawful action on behalf of the tenant (such as reporting a building code violation), the landlord can be held liable for wrongful eviction.
Under N.C. Gen. Stat. § 42-25.9(a), “[d]amages in any action brought by a tenant [for wrongful eviction] shall be limited to actual damages as in an action for trespass or conversion and shall not include punitive damages, treble damages or damages for emotional distress.” While this statutory section purports to limit a tenant’s wrongful eviction recovery to actual damages, such as lost or damaged personal property, costs of moving, and increased rent, the courts have nevertheless permitted a separate claim under North Carolina’s Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-1.1, et seq.
In Stanley v. Moore, 454 S.E.2d 225 (1995), the North Carolina Supreme Court found that the landlord’s abusive actions in demanding a tenant vacate the property and thereafter making it impossible to live in the property after the tenant did not leave (by, among other things, cutting off the electricity) constituted unfair and deceptive acts. The Court took note of 42-25.9(a), but also pointed out that that N.C. Gen. Stat. § 42-25.9(c) provides that “[t]he remedies created by this section are supplementary to all existing common‑law and statutory rights and remedies.” The Supreme Court construed this section to mean that, along with the wrongful eviction claim, the tenant could also bring an action for Unfair and Deceptive Trade Practices. Stanley was an important opinion, because if a plaintiff can prove a violation of the Unfair and Deceptive Trade Practices statute, he or she is entitled to treble the recoverable actual damages and may also be awarded attorneys’ fees.
If you have been evicted without use of the summary ejectment procedure or have otherwise been subjected to abusive and harassing treatment from your landlord, contact the landlord-tenant and civil litigation lawyers of Maginnis Law at 919.480.8526. You may also send a confidential email inquiry using our firm’s contact page. The firm regularly represents clients throughout Wake County, including Raleigh, Cary, Wake Forest, Garner, Apex, and Zebulon. Maginnis Law also represents clients in Durham and Orange Counties, including Chapel Hill.
January 28, 2013
The Full Faith and Credit Clause of the United States Constitution generally requires that one state recognize and enforce the civil judgments of another. North Carolina, like many states, has adopted the Uniform Enforcement of Foreign Judgments Act (N.C. Gen. Stat. §§ 1C-1701 to 1708). The statute creates a relatively efficient method of filing and enforcing judgments of other states in the North Carolina courts. This is particularly important when you have obtained a judgment in another state but the defendant’s most valuable assets are located here in North Carolina. If that’s the case, you need to have your judgment enforced here and should probably hire local counsel to assist in doing so. The Raleigh attorneys of Maginnis Law can assist in enforcing your judgment and can be reached at 919.526.0450 or 919.480.8526.
One of the questions that typically arises in enforcement of foreign judgment cases is “what defenses can a judgment debtor raise in the North Carolina case?” This issue was recently addressed by the North Carolina Court of Appeals in the case Docrx, Inc. v. EMI Services of NC, LLC. The Court held that the following was an exclusive list of defenses allowed to a judgment debtor when trying to prevent the enforceability of a foreign judgment: “(1) the judgment is based upon extrinsic fraud; (2) the judgment is void; or (3) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.”
The primary issue in Docrx was whether “intrinsic” fraud would suffice to set aside a foreign judgment and the Court said even this was not enough. The difference between intrinsic and extrinsic fraud is that intrinsic fraud involves misrepresentations in the foreign court proceeding itself. Extrinsic fraud refers to something that happened outside of the proceeding. The North Carolina Court of Appeals ultimately held that even if there was evidence of intrinsic fraud in ascertaining the foreign judgment, this would be insufficient to set aside the judgment.
The civil litigation lawyers of Maginnis Law handle a wide variety of civil matters and can help you in obtaining satisfaction of your foreign judgment. Our firm handles cases throughout North Carolina but focuses on the Triangle area, including Raleigh, Durham, Chapel Hill, Cary, Apex, Wake Forest, Garner, and the surrounding counties. To speak with attorney Edward Maginnis, call 919.526.0450 or send a confidential email inquiry using our contact page. The firm provides free consultations and is able to offer a variety of billing arrangements, including hourly, flat rate, contingency, and combinations thereof.
January 28, 2013
The internet is full of videos of police officers involved in high speed chases of criminals. Unfortunately, many of them lead to serious accidents that cause law-abiding, innocent citizens serious injuries. If a police officer causes an accident in this type of setting, the standard required to recover damages is exceedingly high. In fact, in every appellate case that has considered whether a police officer had acted grossly negligent in pursuit of a criminal, our courts have said no. This is not to say it is an impossible standard to meet but, unless the officer’s conduct was particularly reckless, it is very difficult.
This scenario was recently discussed in the North Carolina Court of Appeals case Estate of Greene v. City of Greenville. There, a police officer riding a bicycle smelled marijuana in a passing vehicle. He was given permission to take a police cruiser to follow this individual. Hoping to avoid detection by the suspected criminal, he never turned on his police sirens or lights. When the car traveling directly in front of the officer (not the criminal) attempted to turn right without using his turn signal, the officer was forced to hit his brakes and turn left. He spun out of control, crossed the center-line, and caused a violent collision with the vehicle of a Mr. Billy Ray Greene. Both the officer and Mr. Greene were tragically killed.
The statute at issue in Greene was N.C. Gen. Stat. § 20-145, which provides essentially that a posted speed limit does not apply to police vehicles in the chase or apprehension of violators of the law. It further provides that “[t]his exemption shall not, however, protect the driver of any such vehicle from the consequence of a reckless disregard of the safety of others.” Essentially, for a police officer, his employer, or their insurance company to be responsible for damages caused in a high speed chase, the injured party must prove more than ordinary negligence, he or she must prove “gross negligence.”
As stated above, proving gross negligence is exceedingly difficult when police officers are involved. In all cases considered by our appellate courts, they have said the conduct did not rise to gross negligence. In their analysis, the courts purport to examine the following factors: “(1) the reason for the pursuit, (2) the probability of injury to the public due to the officer’s decision to begin and maintain pursuit, and (3) the officer’s conduct during the pursuit.”
These factors are examined in a light very favorably to police officers. In Greene for example, even though the police officer initiated a chase for a simple marijuana possession, this was a factor that the court construed in his favor.
If you have been involved in a serious automobile accident involving a police officer on a high speed chase, it is important that you retain an attorney as soon as possible. Proving liability in your case is far more complicated than the vast majority of automobile accident cases. The Raleigh automobile accident law firm of Maginnis Law offers free consultations. We also handle all accident injury cases on a contingency basis, meaning you pay no attorneys’ fees unless we make a recovery on your behalf.
Maginnis Law regularly represents clients throughout North Carolina, including Raleigh, Durham, Chapel Hill, Cary, Greensboro, Sanford, Greenville, and Fayetteville. To speak with attorney Shawn Howard, call the firm at 919.480.8526 or send an email inquiry using our contact page.
January 18, 2013
States vary as to whether or not vacation pay or sick leave pay must be paid to employees when their period of employment ends with a company. Although North Carolina does not require employers to provide paid time off, if the employer does promise vacation pay or vacation time off with pay, then the employer must have a written policy which clearly explains how earned vacation time can be taken away from them by the company. Amounts due and owing by businesses must be paid on or before the next regularly scheduled pay period for employees. Employers and employees with issues relating to unpaid leave or other wage claims can contact Maginnis Law, PLLC at 919.526.0450 or submit a new case inquiry here. Read more
January 16, 2013
Although the American legal system generally requires that parties bear their own costs, including attorney fees, North Carolina does provide the ability for a court to include attorney fees as part of a judgment in certain situations. Some of these situations include construction contracts relating to contractor and subcontractor lien statutes, unfair and deceptive trade practices claims, trade secret claims, and in certain personal injury and insurance coverage suits. North Carolina also has some laws protecting parties enforcing contractual rights in a breach of contract lawsuit, including a new statute relating to business contracts. To discuss any of the above claims with experienced civil business litigation and personal injury attorneys, contact Maginnis Law at 919.526.0450 or submit a confidential new case inquiry here. Read more
Raleigh Trade Secret Business Litigation Firm – Non-Compete, Non-Solicitation and Trade Secret Disputes
January 15, 2013
Business clients often come to the firm seeking to enforce non-compete provisions or non-solicitation provisions located in employment contracts or employee handbooks. However, many of our small business clients are unaware of the implications associated with an ex-employee bringing proprietary trade secrets to a competitor after leaving the company. Businesses who have hired an employee who is leaving a competitor must also be aware of those implications. If a competitor or ex-employee misappropriates trade secrets, the business will have a claim against them and, potentially, a claim against the company. At a minimum, the business may be able to obtain an injunction precluding their competitor from using trade secrets obtained from the ex-employee. If you are a business seeking to protect confidential business information taken by former employees, contact Maginnis Law at 919.526.0450 or submit a new case inquiry here. The firm also represents former employees involved in trade-secret situations as well as employers who have been accused of mishandling trade secrets involving employees recently hired.
North Carolina General Statute 66-152 is known as the North Carolina Trade Secrets Protection Act. A trade secret is business or technical information that derives independent actual or potential commercial value from not being generally known by the public or being readily ascertainable from independent development and is the subject of reasonable efforts to maintain its secrecy. Some types of items that qualify as trade secrets include cost history information, price lists, confidential customer lists, pricing formulas, and bidding formulas.
Damages can be ascertained in part from lost profits by the company and/or gains in profit by its competitors who benefitted from those trade secrets. Parties can also obtain an injunction preventing the use of those misappropriated trade secrets. Parties can also recover, in some situations, punitive damages and their reasonable attorney fees.
There also is some overlap between the Trade Secrets Protection Act and the Unfair and Deceptive Trade Practices Act. Courts have found that where trade secrets were misappropriated and it involved unethical or unscrupulous behavior, that the damages could be tripled and attorney fees may be awarded.
Maginnis Law, PLLC is a Raleigh civil litigation firm handling business law cases for clients throughout Wake County, including Cary, Apex, Wake Forest, and Holly Springs. The firm also handles certain business cases throughout the Triangle and the state, including federal court matters in all three North Carolina districts. Contact the firm at 919.526.0450 to discuss your business trade secret matter or submit a new case inquiry here.
January 14, 2013
For many automobile accident cases, the “anchor” of the damages is the plaintiff’s medical bills. That is, settlement is frequently based in large part upon the amount of the injured party’s medical bills. One of the first questions our attorneys field from our clients is often “how will my settlement or verdict be paid or disbursed?” If you have been injured and your private health insurance has paid your bills, you may actually be entitled to keep most or all of your settlement except for attorney’s fees and costs. However, if you received medical treatment from an emergency room, chiropractor, or others and did not pay the amount due and owing, there may be a “medical lien” against your personal injury recovery. To discuss these issues further, call the Raleigh law firm of Maginnis Law at 919.480.8526.
N.C.G.S. § 44-49 provides that “there is hereby created a lien upon any sums recovered as damages for personal injury in any civil action in this State.” The “lien is in favor of any person, corporation, State entity, municipal corporation or county to whom the person so recovering, or the person in whose behalf the recovery has been made, may be indebted for any drugs, medical supplies, ambulance services, services rendered by any physician, dentist, nurse, or hospital, or hospital attention or services rendered in connection with the injury in compensation for which the damages have been recovered.”
Essentially, the North Carolina medical lien statute requires that when a person is represented by counsel, the attorney must disburse portions of a settlement or verdict to medical providers who have “perfected” a lien. The medical provider must take affirmative steps to “perfect” the lien. For instance, when the attorney requests copies of medical records and bills from the hospital or physician, those records and bills must be provided without charge and the hospital or physician must provide written notice of the lien to the attorney. Failure to do so means that the attorney does need not disburse any portion of the settlement to the medical provider. It does not, however, eliminate the debt owed by the injured party.
It is also important to realize that the medical lien is limited by N.C.G.S. § 44-50. Specifically, the medical lien is capped at 50% of any settlement or verdict after attorney’s fees are deducted. Because many attorneys use a 33% contingency fee structure, this means that the statute usually limits the total amount of medical liens to 33% of the settlement. This cap helps make it more likely the client will be able to at least recover some amount for lost wages, pain and suffering, and disability. Critically, the medical lien is separate from an injured person’s financial obligation to pay the provider. That is, assume there is a $10,000.00 medical bill and your attorney is required to pay $7,000.00 of any proceeds to the provider pursuant to the medical lien statute. You remain liable for the other $3,000.00 unless your attorney can negotiate a reduction (which is sometimes possible).
If you have been involved in a serious car accident and have outstanding medical bills, you should contact a knowledgeable, aggressive personal injury attorney. The Raleigh accident attorneys of Maginnis Law handle all personal injury cases on contingency basis and offer free consultations. To speak with an attorney today, call the firm at 919.480.8526 or send an email using our confidential contact page. The firm’s lawyers regularly represents automobile accident clients in and around the Triangle area, including Raleigh, Durham, Cary, Chapel Hill, Apex, Wake Forest, Garner, and Holly Springs.
January 3, 2013
Most employees understand that if one is injured while on the job, he or she may recover through the North Carolina workers’ compensation system. What many employees do not know is that this is usually the exclusive remedy. That is, in most cases, an employee may not choose to file a separate personal injury action where he or she seeks damages for pain and suffering. For the most part, the employee is limited to the types of damages available through the workers’ compensation system and the North Carolina Industrial Commission. There are exceptions to this general rule, though. Among those exceptions are so-called Pleasant claims.
In Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985), the North Carolina Supreme Court created an exception to the exclusivity provision of the workers’ compensation system that allows employees injured by the willful, wanton, and reckless negligence of a co-employee to sue that co-employee directly in a common law action. This is an important exception, as the damages recoverable in a common law action typically exceed those available through the workers’ compensation system. For instance, the workers compensation system may limit the period of your recovery of lost wages and does not allow for awards of physical, mental, or emotional pain and suffering. There are no such arbitrary barriers to common law negligence claims brought in the North Carolina trial courts.
The recent North Carolina Supreme Court case of Trivette v. Young, No. 32A12 (2012) discussed Pleasant claims in detail. In Trivette, a school principal, while horsing around, accidentally discharged a fire extinguisher, causing the plaintiff’s neuromuscular disease to come out of remission. There were two primary legal issues. The first question was whether the principal was a co-employee of his assistant or was her employer. If he was the latter, the Pleasant claim would not have existed. The Supreme Court easily determined that he was merely a fellow employee, as they were both paid by the same employer and a certain North Carolina statute described principals as employees of the local board of education.
The more difficult question in Trivette was whether the defendant’s conduct rose to the level of willful and wanton. The Court ultimately determined it did not, as the principal could not have reasonably known that the discharge of the extinguisher would lead to the plaintiff’s disease going out of remission. This is an important point in litigating Pleasant claims; you essentially need to prove that the defendant knew or should have known his conduct was likely to lead to injury. This is a high standard but is not an impossible one to meet, depending upon the facts of your case.
If you have been injured on the job, the Raleigh workers compensation and personal injury attorneys of Maginnis Law can help. Our lawyers offer free consultations and take all new accident injury cases on a contingency basis. This means that you pay no fee unless and until we make a recovery on your behalf.
To discuss your workers compensation or Pleasant claim with Maginnis Law, call attorney Shawn Howard at 919.480.8526. You may also send a confidential email inquiry using our contact page. The Raleigh law firm of Maginnis Law regularly represents clients in and around eastern North Carolina, including Raleigh, Durham, Cary, Chapel Hill, Fayetteville, Greensboro, Apex, and Greenville.
January 3, 2013
Slip and falls are among the more common varieties of personal injury cases. Although many of these accidents lead to relatively minor injuries such as sprained knees and ankles, others can cause serious problems including torn ligaments and herniated discs. The falls may be due to any number of defective conditions. Inadequate lighting is one of the more frequent causes cited. If you have fallen down a dimly lit stairway, ramp, or walkway, or otherwise injured yourself due to a landowner’s failure to provide adequate lighting, contact the Raleigh personal injury attorneys of Maginnis Law at 919.480.8526. You may also send a confidential email inquiry using our contact page.
There are two primary difficulties in any slip and fall case: (1) proving the defendant breached a duty and (2) overcoming a contributory negligence defense. Each of these issues were addressed in the context of an inadequate lighting claim in the recent North Carolina Court of Appeals case Cone v. Watson, No. COA12-670. The plaintiff in Cone fell down a stairway leading out of a salon, because she could not see the last few stairs. She thought she had reached the final stair when, in fact, she had not. As a result of missing the last step, she broke one ankle and severely sprained the other. The Court of Appeals began its analysis by reaffirming that “[i]f [a] step is properly constructed, but poorly lighted, and by reason of this fact one entering the store sustains an injury, recovery may be had.”
After restating the general rule, the Court of Appeals found that there was enough evidence for a jury to determine that the salon owner had failed to provide sufficient lighting. The critical evidence was plaintiff’s testimony that the final steps were so dark that she could not tell how many were remaining. The Court next had to address defendant’s contributory negligence defense. This defense is routinely used in slip and fall cases, with landlords arguing plaintiff’s injuries were caused by their own negligence in failing to notice obvious conditions. The Court found plaintiff was not contributorily negligent as a matter of law because (1) there was no evidence that she knew or should have known the number of steps and (2) she reasonably decided not to take the ramp out of the salon because it too was wet and poorly lit.
If you successfully prove your inadequate lighting slip and fall claim, you may be entitled to a recovery for certain elements of damages, including: (1) medical and pharmaceutical expenses (2) lost wages and/or diminished earning capacity (3) physical, mental, and emotional pain and suffering, and (4) loss of enjoyment of life. These damages can mean the difference between being able to pay medical bills and facing bankruptcy.
The Raleigh attorneys of Maginnis Law handle personal injury claims, including inadequate lighting cases, on a contingency basis. This means that you do not pay an attorneys’ fee unless and until we make a financial recovery on your behalf. We offer free in office consultations from our downtown Raleigh office and will travel to meet with you if necessary.
To discuss your slip and fall injury claim, call attorney Shawn Howard at 919.480.8526. Maginnis Law handles slip and fall claims throughout North Carolina, including Raleigh, Durham, Greensboro, Fayetteville, Cary, Apex, Chapel Hill, Pittsboro, Sanford, and Greenville.