While the internet has increased the availability of forms and instruction and “virtual” lawyers, there are certain times and places where only an actual lawyer will do.  There could be many an article written about the errors or omissions in documents drafted through forms off the internet by individuals or principals in a corporation, because they do not have the requisite degree of legal skill and knowledge that a lawyer practicing in a specific area possesses.  Starting a corporation or limited liability company or other formal business entity (“corporation”) needs to involve research, consulting, and formally organizing with the secretary of state and the drafting of an important document needs an understanding of the basic elements, options and possible outcomes when enforcing the rights provided in the document.

But, this article is about times when there is a requirement for a lawyer, not just the need for a lawyer.  This article highlights the rule that corporations are required to have a licensed lawyer when bringing or defending lawsuits.  A corporation is a legal entity that is separate and distinct from its owners, whether there is a single shareholder or member or multiple shareholders or members.  Corporations enjoy many of the rights and responsibilities that individuals possess, as they can enter contracts, loan and borrow money, own assets, pay taxes, hire people and sue or be sued.  But, unlike individuals, a corporation cannot “appear” in a lawsuit to enforce or protect its rights without a lawyer.  It is well known that individuals can appear pro se, derived from Latin and meaning “for oneself” or “on behalf of themselves”.  Putting aside the advisability of representing oneself, the law allows an individual to argue on one’s own behalf as the plaintiff or defendant in civil cases.

But when it comes to corporations, there is a well-established rule in North Carolina courts that prohibits a non-lawyer from representing a corporation in the court system.  This includes any pleading or personal appearance before a civil court of a Division of Motor Vehicles hearing (absent small claims court).  In Lexis-Nexis, Division of Reed Elsevier, Inc. v. Travishan Corp., 155 N.C. App. 205, 573 S.E.2d 547 (2002), the court held that, in North Carolina, a corporation must be represented by a duly admitted and licensed attorney-at-law and cannot represent itself in a legal proceeding.  This means any appearance, such as filing an extension of time, filing an answer or pleading, or appearing in court for a motion or trial.

The courts are aware of and routinely enforce this requirement and any corporation that ignores the requirement will likely find themselves on the wrong end of a default, or sanction motion, or botched appeal from small claims court.  The most gentile of lawyers will point out this necessity, but the worst of lawyers will exploit it to their client’s advantage.  So, if you find your corporation in a position to have to sue or if you have been sued, find a lawyer with experience in civil litigation to enforce your rights or protect your investment.

Miller Monroe Holton & Plyler represents a wide range of businesses, investors, shareholders, and individuals – from large national corporations to small local businesses. Our commercial litigation practice is focused on honest, aggressive representation with a cost-effective client-focused approach. Our lawyers have the business experience necessary to guide you through a complex and sometimes daunting litigation process.

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If you’re an industrial or construction worker, you know that you must work carefully in order to stay safe and keep your co-workers safe. But you may not be prepared for the time when someone else’s mistake jeopardizes your safety and causes you to be injured. When it comes to on-the-job injuries, it’s critical to take the right steps not only to help you recover but also to protect your interests if a claim or lawsuit becomes necessary.

Here are the first five things you should do when you are injured on the job, even before you contact a personal injury attorney.

#1: Create a record of the incident.

When you’re injured, the very first thing you should do (aside from seeking on-site medical attention as needed) is to report your injury to your employer. Most companies have a standard incident report that you will be prompted to fill out. Not only will this create an early record of your injury, but by writing down the incident right after it happens, you’ll be more likely to accurately capture the details. Keep in mind that your memory and recollection will fade over time, so it is best to capture the incident details right away. Make sure you obtain a copy of your incident report from your employer and keep it on file. If you work for a subcontractor, make sure that your employer notifies the general contractor and owner of the project.

#2: Seek medical attention.

It is critical that you seek any and all medical treatment you need. If you visit an emergency room, pay attention to the doctor’s recommendations when you are released, and follow the doctor’s instructions. It may be tempting to hope that your injury will get better on its own, but you should seek the care recommended by your doctor. Visit your primary care doctor and seek specialist referrals if appropriate.

Receiving the necessary medical treatment will help you heal as much as possible, which should always be most important. However, receiving consistent medical treatment carries the added benefit of creating a link between your injuries and the accident, which is essential for a legal claim. While you may not recoup all of your expenses through a lawsuit, it is nonetheless critical to seek the right care, right away.

#3: Locate witnesses.

Eyewitnesses to your accident will be invaluable if you choose to pursue a claim. Make a list of everyone who was on the scene during the incident and gather their names and contact information. Find out the witnesses’ employers and supervisors. If possible, ask them to provide a short, written statement for you about what they saw, in as much detail as possible.

#4: Track your medical treatment.

Although your attorney will likely order your medical records, it is advisable to keep track of your medical visits, notes, and bills as early as possible. Keeping a file of your incident-related medical records will not only help your attorney in preparing your case but will also keep you informed on your condition and ensure that you are abiding by your providers’ orders. Your employer’s workers compensation insurance carrier may pay for medical treatment. If so, you should cooperate with their efforts to coordinate treatment.

#5: Keep a diary.

In addition to your employer incident report and official medical records, keep your own unofficial but detailed notes on how your condition progresses over time. Examples of items to track include:

–        The number (and dates) of missed work days;

–        Pain and other physical symptoms;

–        Medications you’re taking, and whether they are helping your condition;

–        Healing of broken bones, wounds, and other incident-related conditions;

–        Your doctors’ appointments and what you discussed at each; and

–        Any other illnesses or aggravating conditions you are experiencing.

By tracking your progress, you will create a detailed picture of how your incident has affected you over time, which will help you build your case later – especially when it comes to describing how your accident has impacted your quality of life.

At Miller Monroe Holton & Plyler, we have years of experience helping individuals who’ve been seriously injured in industrial plants and on construction sites. This experience allows us to craft compelling cases on behalf of injured individuals, seeking compensation for medical treatment, lost income, and pain and suffering. Contact us if you’ve been seriously injured and would like help pursuing a fair recovery.

The post Five Steps to Take If You’re Injured in a Construction Accident appeared first on Miller Monroe Holton & Plyler.

You have likely seen liquidated damages clauses in the following contexts:

• Real estate purchase and sale contracts: The earnest money deposit, which parties negotiate as a sole remedy in the event a buyer backs out of the agreement, is a liquidated damages provision.
• Residential or commercial construction contracts: The parties may agree that if one party delays, he will owe the non-breaching party a sum of money for each day of the delay. This sum typically represents the best estimate of the profits the non-breaching party lost as a result of the breaching party’s delay.
• A lease agreement: A landlord may require a tenant to pay a certain amount if he breaches the lease agreement.

A liquidated damages clause must be clearly specified in a contract and reflect a reasonable estimate of the likely damages that the non-breaching party would incur. In determining whether a clause is enforceable, courts generally consider the following factors, among others:

• Whether the damages the parties reasonably anticipate are hard to ascertain due to their indefiniteness or uncertainty;
• Whether the amount of damages represents a reasonable estimate of the damage or is reasonably proportionate to the damages actually incurred;
• Whether the amount is so large that it functions more like a penalty to the breaching party than compensation to the non-breaching party; and
• Whether the goods or services at issue have a clear, easily ascertainable market value.

The party who is found liable carries the burden of proving the reasonableness of a liquidated damages clause. When damages are harder to prove or ascertain, it is more likely that a court will find that a clause was reasonable and thus enforceable.

Benefits of Liquidated Damages Clauses

The primary benefit of a liquidated damages clause is that it helps parties sidestep expensive litigation – especially the often protracted damages portion of a trial. Further, many commercial cases, especially construction disputes, are expensive due to the extensive discovery that is often involved.

A liquidated damages clause can protect contractors from the risk of lost profits. For example, imagine a developer contracts with a builder for a mixed-use condominium project. There is a set timeline for the work, and once all subcontractors are engaged, the work commences. Then, one of the subcontractors unexpectedly – and without explanation – stops work. Meanwhile, various tenants are signing leases for the commercial and residential properties, expecting them to be finished at a particular time. But because the project is delayed and thus unfinished, the new tenants are unable to move in. The non-breaching party – the contractor – loses money as tenants walk away. In this case, a preset damages clause can provide a clear remedy without forcing the aggrieved contractor to file a lawsuit to collect its lost profits. Not to mention, it will save the parties from heated negotiations and arguments about what measure of damages is appropriate to compensate the contractor.

In the process of drafting a liquidated damages clause, the parties can compare and weigh the value of a contract against the costs of a potential breach, helping them evaluate risk and determine whether a contract makes economic sense. In some cases, parties may determine that the likely cost a breach to one party would seriously outweigh the benefits of completing the project, thus effectively avoiding a potentially costly situation.

Potential Detriments of Liquidated Damages Clauses

Liquidated damages clauses are often litigated in and of themselves – defeating the purpose of saving costly, time-consuming litigation. In fact, liquidated damages clauses are not automatically deemed enforceable. They must be reasonable, made in good faith, and not so large that they function more like penalties than compensation for the non-breaching party. In the construction context, the issue of concurrent delays can further muddy the waters. For instance, when a subcontractor delays a project by failing to deliver or install the proper equipment for the job, but the contractor is also behind, it can be difficult to determine the cause of the delay and properly apportion damages without diving into litigation.

Additionally, parties may not be able to anticipate the amount of damages before they embark on a project. For instance, the parties to a real estate contract take a risk when negotiating an earnest money deposit, as they are making a reasonable estimate of an amount that will protect them in the event the contract falls through. Similarly, parties to a construction contract may find it difficult to adequately capture their expected profits before they commence work on a project.

Finally, a pre-set damages amount deprives parties of the opportunity to let a neutral, impartial judge or jury determine an amount of damages. In deciding on a pre-set damages amount, parties increase the risk that they may not be compensated as fully as they would like to be.

What Parties Can Consider When Drafting a Liquidated Damages Clause

Each contract is unique and as such, boilerplate damages clauses will not provide adequate protection. It is critical to contact an experienced attorney if you are attempting to draft a contract with a liquidated damages clause. However, generally, there are several factors to consider when determining the nature and amount of a liquidated damages clause in a contract:

• The nature of the contract (e.g., whether it is a contract for goods or services);
• The possible deterrent effect of a liquidated damages clause;
• The term of the contract;
• The various factors that may affect whether the contract can be fully performed;
• The feasibility of determining a specific amount of damages; and
• The overall reasonableness of the amount of damages given the totality of the circumstances.

If you have questions about the enforceability of a liquidated damages clause in your commercial contract, or you think you have a viable claim for its enforcement, contact us for a consultation.

This article does not establish an attorney-client relationship and is not to be construed as legal advice.

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There is a lack of consensus among lawyers about the correct time to schedule the mediation.  According to recent studies, delaying the mediation even for a short time decreases the likelihood of settlement.  There are many factors at work, but generally the investment in the litigation and the level of contentiousness between the parties grows as the case goes forward.

In a previous article, I reviewed the use of the pre-litigation mediation tool.  Whether required by contractual clauses or proposed by lawyers who know their clients can benefit from trying to resolve disputes before they incur the time, expense, emotion and distraction of litigation, early mediations are becoming much more of a “norm” than ever before.  Mediation is a reality in most civil superior court cases, so is it worth taking a shot to resolve a dispute before the parties dig deeper into their pockets and positions?

The obvious advantages to early mediation include the relatively small amount of time, fees and costs invested, with the potential of a prompt resolution.  Pre-litigation mediation has the advantage of the confidential nature of the proceedings as opposed to the public record of court proceedings.  The parties may not want to air their dirty laundry, or may not want their competitors, customers or employees to find out about the issues.

Even early in litigation, studies suggest that cases referred to mediation at an earlier stage are more likely to be settled than the cases that advanced to the pre-trial stage.  Preparation for an early mediation is key, as the parties have typically not conducted much discovery.  Lawyers may need to flesh out the key facts and provide evidence or documents and legal precedent for the mediation and should be prepared to share their positions.  A bonus is that, if the pre-litigation or early mediation is unsuccessful, the lawyers are better prepared to draft a complaint or answer without extensive additional investigation, or in some circumstances, the mediator can adjourn the conference until the necessary questions are answered in the case.

Paul T. Flick is a NCDRC Certified Superior Court Mediator at Flick Dispute Resolution in Raleigh, North Carolina

About Miller Monroe Holton & Plyler

At Miller Monroe Holton & Plyler, our attorneys have helped many clients resolve their disputes throughout alternative dispute resolution before a lawsuit is ever filed.  We recommend engaging experienced counsel if you are involved a dispute that may lead to litigation, so that you can effectively navigate the process.  Contact us today for a consultation, or click here to learn more about our practice areas.

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Our firm routinely handles claims by contractors, lenders, and property owners involving construction defects, delays, and contract disputes.  Many times,  parties to a construction loan or development agreement modify the terms of the original agreement.  The terms of these modifications—and how they affect the parties’ obligations—are often disputed.

A recent opinion from the North Carolina Court of Appeals clarifies a foundational principle of contract law in the context of a mixed-use construction project.

The Facts

In French Broad Place, LLC v. Asheville Savings Bank, the plaintiff, French Broad, developed a construction project in Western North Carolina. The project was a four-story building with office and retail space, restaurants, and residential condominium units. French Broad selected the defendant, a construction lender, to finance the project.

In December 2007, the parties executed a loan commitment, which required the defendant to loan French Broad $9,950,000 for the project. The commitment contained several conditions. For instance, it required the defendant to seek funding for a minimum of $2,000,000 from a participating bank. Before the loan closed, the defendant informed French Broad that it was not able to obtain this funding and would only be funding $7,750,000 of the $9,950,000 specified in the loan commitment. The defendant also asked that French Broad seek a replacement lender for the un-funded $2,000,000.

Before the loan closed, French Broad commenced construction on the project, racking up various contractor liens. The loan closed in August of 2008 for $7,750,000. The parties executed a written loan agreement that was secured by a promissory note and a deed of trust in favor of the defendant.

The First Modification Agreement

In November of 2008, French Broad submitted a modification request to the defendant, seeking additional funds in the amount of $725,801. The defendant approved, and the parties agreed to modify the loan agreement, increasing the total loan amount from $7,750,000 to $8,475,801. However, French Broad alleged that the bank wrongfully delayed approving the modification for several months.

In March 2009, the defendant started to refuse to finance the continued construction of the project. At this point, three businesses were set to open in the building, and initial residential condo sales were months away from closing. The defendant also refused to provide take-out loans that it supposedly agreed to provide, which French Broad claimed ultimately caused the project to fail for lack of funding.

The Second Modification Agreement

In June of 2009, the parties executed a second modification agreement, modifying the note, deed of trust, and loan agreement to read as follows:

The total amount of all funds disbursed by Lender to Borrower to date under said Note, CLA [Construction Loan Agreement] and Deed of Trust, as amended by the LMA [Loan Modification Agreement] and Modification of Deed of Trust . . . is $8,475,801. There are presently no Construction Loan funds left to be disbursed. [Emphasis added.]

The Lawsuit

French Broad filed a complaint against the bank in December of 2011, alleging various breach of contract claims. The bank filed a motion to dismiss and a counterclaim seeking payment in full on the promissory note that secured the loan agreement. The defendant also moved for summary judgment on all claims and won. French Broad appealed from this judgment.

The Court’s Analysis: Breach of Contract

First and foremost, French Broad alleged the parties’ agreement required the defendant to provide $9,950,000 in funds for initial financing, instead of the $7,750,000 that defendant actually provided upon the loan’s closing. The Court disagreed.

When the parties closed their loan in August of 2008, their agreement included a merger clause that read as follows:

By signing this document each party represents and agrees that: (A) The written loan agreement represents the final agreement between the parties, (B) There are no unwritten oral agreements between the parties, and (C) The written loan agreement may not be contradicted by evidence of any prior, contemporaneous, or subsequent oral agreements or understandings of the parties.

In other words, the written loan agreement superseded any and all prior agreements between the parties, including the loan commitment. As such, the loan agreement’s provision for $7,750,000 in financing superseded the earlier loan commitment’s provision for $9,950,000.  The Court also referenced the parties’ two written modifications to their loan agreement, whereby French Broad agreed there were no “defenses, offsets, or other claims” regarding any of the parties’ agreements or modifications.

Based on the terms of the loan agreement and the two modifications, the bank was not required to provide $9,950,000 in initial financing. The Court noted that even if the bank was obligated to provide $9,950,000 under the loan agreement, French Broad waived any claims it may have had against the defendant by signing the written modification stating that “the total amount of all funds disbursed by Lender to Borrower to date under said Note, CLA, and Deed of Trust, as amended by the LMA and Modification of Deed of Trust . . . is $8,475,801” and “there are presently no Construction Loan funds left to be disbursed.” In agreeing to these modifications, French Broad destroyed its opportunity to hold the bank responsible for an increased loan amount.

The Modification Request

French Broad also alleged that the defendant breached the loan agreements by wrongfully delaying its approval of French Broad’s modification request. The Court stated that the loan agreement did not require the defendant to loan any more funds to French Broad, and so the defendant did not act wrongfully in delaying French Broad’s request. The parties’ modification stated:

[A]t the request of Borrower, Lender agreed to lend Borrower an additional $725,801.00 by increasing the amount of the Construction Loan from $7,750,000 to $8,475,800.00. To reflect this increase in the amount of the Construction Loan, Borrower and Lender entered into a Change In Terms Agreement dated January 23, 2009 increasing the amount of the Construction Loan, and the principal amount of the Note, from $7,750,000.00 to $8,475,801.00.

The Court concluded that through this language, French Broad specifically waived any claim that the defendant breached the loan agreement by delaying further funding.  In other words, the loan agreement and related modifications together establish that there was no genuine issue of material fact regarding the defendant’s alleged breach. Between traditional principles in contract law and French Broad’s willfully signing various modifications, it ultimately fell on its own sword.

Cases like these can be complex and confusing, particularly when a loan agreement or contract has been modified multiple times. No matter how much money is at stake, it is critical to engage a skilled lawyer to help you navigate a dispute. If you have questions about the law governing your commercial contract, let us know.

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If you would like to read the Court’s full opinion, it can be found here. To learn more about our firm’s construction litigation practice, click here.

This article does not establish an attorney-client relationship and must not be construed as legal advice.

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Some of the advantages to pre-litigation mediation are obvious and some are not.  The obvious advantages include the relatively small amount of time invested, with the potential of a prompt resolution, the limited attorney fees and costs incurred, and the possibility of avoiding the uncertainty of a judge, jury or arbitrator.  One less obvious advantage is the confidential nature of the proceedings as opposed to the public record of court proceedings.  The parties may not want to air their dirty laundry, or may not want their competitors, customers or employees to find out about the issues.   Another less obvious advantage is the possibility of protecting a business or personal relationship between the parties that a contested lawsuit could destroy.  A skillful mediator can facilitate communication designed to resolve the dispute, without creating on-going ill will that typically accompanies our adversary system in litigation.  It allows a problem to be solved without assigning a “win” or “loss” label.  And perhaps what should be obvious but is not always, the advantage of the parties fashioning their own remedy and being allowed to be creative in doing so.  There may be more ways to solve the issues than the exchange of money, if the parties’ interests and “hot buttons” in the dispute can be addressed.  Many business disputes can be better resolved without relying on an expert witness to determine the “value” of a claim.

Of course, the form and rules used in mediation matter.  Mediation is generally an informal process that encourages parties to reach a settlement agreement of a dispute through the use of a third party neutral.  The parties generally control the decision making as the mediator attempts to provide open lines of communication and understanding to resolve the dispute.  The Mediated Settlement Conference Rules under N.C. Gen. Stat. §7A-38.1 and the local rules establish the selection of the mediator, the timing, attendance, fees, the mediator’s duties and confidentiality, among other things.  It would be wise for the parties to adopt those Rules or to agree on the applicable rules prior to undertaking the mediation, particularly as to confidentiality and the memorialization and enforcement of any settlement that is achieved.

Preparation for a pre-litigation mediation is required.  In the usual Mediated Settlement Conference, the lawyers have often conducted discovery and usually know their cases well.  With pre-litigation mediations, the lawyers may need to flesh out the key facts and legal precedent in preparation for the mediation and share their positions.  Mediation is the best chance to help each side understand that there are two sides to every story.   The preparation for a pre-litigation mediation is also the time to manage the client’s expectations so that valuable communication and understanding can take place.  A bonus is that if the pre-litigation fails, the lawyer is prepared to draft a complaint or answer without extensive additional investigation.

Of course, for any mediation to be successful, the parties must want to resolve the issues between them and believe that mediation is a possible vehicle to do so.  Lawyers should be more open to the alternative dispute resolution available in pre-litigation mediation, without any preconception that it is a showing of weakness or strength, but rather embrace it as an opportunity.

Experienced Litigation Attorneys

At Miller Monroe Holton & Plyler, our attorneys have helped many clients resolve their disputes throughout alternative dispute resolution before a lawsuit is ever filed.  We recommend engaging experienced counsel if you are involved a dispute that may lead to litigation, so that you can effectively navigate the process. Contact us today for a consultation, or click here to learn more about our practice areas.

This article does not establish an attorney-client relationship and must not be construed as legal advice.

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Many clients are surprised to learn that obtaining a judgment is not the end of the story in litigation. Even lawyers fall into the trap of celebrating a large verdict or favorable judgment before a judgment is actually collected.  The often disappointing reality, particularly in commercial litigation, is that a judgment is sometimes only the tip of the iceberg.  The post-judgment collection process is often complex, extensive, and fraught with frustrations ranging from minor challenges, such as a judgment debtor’s relocation, to significant obstacles, including a judgment debtor’s insolvency, bankruptcy, or artful service-dodging.  At times, simply serving the judgment papers will rattle a party into writing a check.  However, the more common scenario is a prolonged hunt for assets that may ultimately leave the judgment creditor empty-handed.

Understanding the basics of judgment execution is critical in creating realistic expectations about the prospects of collection.  The first step is to ensure compliance with the judgment debtor’s rights.  Hearkening back to the foundational principles of property law, an individual’s right to use, enjoy, and retain his own property is sacred and spans all practice areas.  As such, the law allows a judgment debtor to designate certain property as exempt from a civil judgment.  All states have their own exemption laws that apply to a judgment debtor’s property located in that state.  In North Carolina, there are several items an individual can protect from the judgment’s reach. A few examples include:

• Up to $35,000 in a residence and burial plots. If the individual is unmarried and 65 or older, he or she may designate the same in an amount up to $60,000.
• Up to $5,000 in personal property – including household goods and appliances – and an additional $1,000, but not to exceed $4,000, for dependents.
• Up to $3,500 in a motor vehicle after deduction of valid liens or security interests.
• Healthcare aids such as wheelchairs and hearing aids.
• Up to $2,000 in professional books or tools.
• Life insurance policies where the sole beneficiaries are the spouse and/or children.
• Retirement accounts.

In the case of an individual judgment debtor (as opposed to a corporate judgment debtor), the judgment creditor is required by law to serve the judgment debtor with a formal notice of the right to designate exemptions.  From the date of service of the notice, the judgment debtor is allowed twenty days to designate exemptions.    The judgment creditor is entitled to challenge the exemptions by filing a Notice of Objection with the Court in the county where the case was heard. However, there are narrow circumstances in which the Court will uphold a judgment creditor’s objections, for instance, if the judgment debtor designated more property than the law allows.

Once the exemption period expires, the judgment creditor may file for the issuance of a writ of execution in each county in which the judgment debtor is believed to own assets.  In counties other than the county in which the judgment was entered, the judgment creditor must pay a small fee to transcribe the judgment in that county.  The Clerk of Court in each county in which the judgment has been transcribed will then issue the writ of execution.  The writ gives the Sheriff’s Office in each county the authority to execute the judgment, which entails formally serving the writ of execution on the judgment debtor and locating and seizing non-exempt property.  The Sheriff may clear bank accounts, seize motor vehicles, place a lien on a home, and collect personal items and effects.   Unlike other states, however, North Carolina does not allow a creditor to garnish wages except in certain rare situations (for example, child support).  If the judgment attaches to a motor vehicle or other personal property, the Sheriff’s Office may sell the property and use the proceeds from the sale to pay off all liens against it, including the judgment.  A judgment can also attach as a lien on a house, which will render it unsaleable until the judgment is satisfied.  This can give the judgment creditor leverage in forcing the judgment debtor to satisfy a judgment.  However, it is not always easy to find property that is unencumbered or valuable enough to satisfy a judgment.  Therefore, often the most efficient way to satisfy a judgment, aside from the judgment debtor writing a check, is to locate a non-exempt bank account with sufficient funds to satisfy the judgment.

A judgment is valid for up to ten years.  If a judgment debtor acquires new property in the counties in which the judgment has been entered or transcribed, the judgment will automatically attach to that property.  However, it is important to understand that a judgment may never be satisfied.  If the judgment debtor has several other judgments against him/her, any seizable assets will be subject to a priority battle among the various creditors.  Additionally, many corporate judgment debtors may dissolve, file bankruptcy, or transfer or hide assets, while debtors who are individuals may dodge the judgment by relocating to another state.  A skilled attorney will conduct the research necessary to assess the likelihood of collecting on a judgment and will advise you of these risks prior to initiating litigation.

Given the inherent challenges in judgment execution, it is critical to engage attorneys who will diligently and tenaciously pursue collection.  A skilled attorney will take an active role in judgment collection by routinely investigating the status of the judgment debtor’s assets and liabilities and communicating with the Sheriff’s Office in the relevant counties regarding what property might be available and subject to seizure.  At Miller Monroe, we understand that post-judgment collection requires as much diligence as litigating a case.  We have successfully collected on numerous judgments in and out of bankruptcy, and we will take an aggressive role in enforcing a judgment in your case.  We will also guide you through an honest and transparent cost/benefit analysis where we believe collection is unlikely. When hiring a litigator to handle your commercial litigation matters, we would strongly encourage you to inquire about the firm’s experience in enforcing judgments as part of your due diligence process.  It is critically important that your attorney be well-versed in litigating the underlying case, but also in pursuing assets necessary to fulfill a judgment in the event that you prevail.

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North Carolina has adopted the Uniform Enforcement of Foreign Judgments Act, which applies in all but a few states and sets forth the guidelines attorneys or judgment creditors must follow in executing on a foreign judgment. While the detailed legal requirements of the Uniform Enforcement of Foreign Judgments Act can be found at N.C.G.S. § 1C-1701, we have broken the process down into four simple steps:

1. File an authenticated copy of your judgment. Judgment creditors must obtain an original, signed, physical copy of the judgment to file in any North Carolina county in which the judgment debtor resides or has real or personal property.
2. Prepare and file an affidavit. Along with the judgment, the attorney or judgment creditor must file a sworn statement that the judgment has not been satisfied in full.
3. Serve the judgment debtor. The attorney or judgment creditor must serve the individual or corporate judgment debtor with a copy of the judgment, affidavit, and a formal notice that the judgment was filed in the applicable counties. The purpose of this step is to ensure that the judgment debtor has notice that the judgment may be executed on its North Carolina property, and to provide the judgment debtor with an opportunity to respond or object to the judgment.
4. Wait 30 days. The judgment debtor is afforded 30 days from the date of service to file a motion for relief from the judgment in the applicable North Carolina counties. If this happens, the judgment creditor will be required to petition the court for an order allowing execution of the judgment.  If not, the judgment creditor is permitted to proceed with executing the judgment in the normal manner.

While this process appears straightforward, it does not always proceed smoothly and can be fraught with various complications such as a judgment debtor’s bankruptcy or relocation to another state.  Particularly in the case of individual judgment debtors, the law imposes various restrictions on creditors in an attempt to protect the judgment debtors’ rights.  It can be difficult to weather unexpected challenges while trying not to run afoul of various sets of laws that protect debtors. As such, it is helpful to engage an experienced attorney to help you navigate the process.

At Miller & Monroe, we have the experience and skill to help you navigate these complicated waters.  Our Raleigh lawyers have enforced civil judgments throughout North Carolina for our business and individual clients.  If you need help collecting a business debt or consumer debt, or enforcing a judgment against a business or individual, please contact us today and setup a consultation to discuss your options.

 This article is not intended to constitute legal advice and does not create an attorney-client relationship.

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North Carolina adheres to a modified version of the American Rule.  The general rule in North Carolina is that each party pays its own fees, with a few narrow exceptions.  Those exceptions arise when the General Assembly enacts a statute specifically authorizing the recovery of attorney’s fees in particular cases.  Even so, these narrow exceptions apply only to claims arising under North Carolina law.  As such, state statutes will not allow recovery of attorneys’ fees in federal lawsuits unless there is a specific federal directive on point.

Here are a few examples of claims for which a statute provides for recovery of attorney’s fees:

• Misappropriation of trade secrets;
• Unfair and deceptive trade practices;
• Claims arising from a breach of a business contract that contains a reciprocal attorneys’ fees provision, meaning each party has the opportunity to recover attorneys’ fees under the contract;
• Retaliatory employment discrimination practices and wage and hour disputes;
• Claims arising out of a promissory note, conditional sale contract, or other “evidence of indebtedness” (including leases);
• Claims involving liens against real property;
• Injury and property damage claims involving an insurance company in which the total recovery is less than $20,000;
• Claims brought by an opposing party that prove altogether unsupported by law or fact;
• Claims involving domestic or family issues such as post-separation support, alimony, or child support; and
• Claims involving estate disputes, including will caveats.

Note: This is not an exhaustive list and each category above has additional limitations. 

Even if your claim falls into one of these categories, however, there is a risk that you will not recoup your attorneys’ fees.  Judges have discretion to deny or reduce the recovery of fees even if a statute allows it.  It is critical to keep this in mind before entering into expensive and protracted litigation, particularly if the amount in controversy is relatively small.

An experienced attorney can advise you of the risks and rewards of entering into litigation given the likelihood that you will not recover your fees.  At Miller Monroe, our goal is to offer you efficient, aggressive, and cost-effective representation, and we will help you make the best strategic and financial decision in resolving your legal dispute.

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Business North Carolina magazine honors Tar Heel lawyers by publishing Business North Carolina’s Legal Elite, a listing of the State’s top lawyers in business-related categories.  Winners are chosen not by the magazine’s editors, but by the state’s lawyers.  In developing the list, Business North Carolina made ballots available to more than 20,000 Tar Heel Lawyers and only 3% were selected for Legal Elite.

Jason A. Miller has litigation experience in state and federal courts throughout North Carolina and beyond.  He has represented Fortune 500 companies in complex business litigation matters, builders and developers in real property disputes, information technology companies in trade secrets disputes, partners in closely-held company disputes, investors in business deals gone awry, and dozens of cases in between.  Jason has litigated matters in more than a dozen counties in North Carolina and is licensed to practice in every state and federal court in North Carolina.  Most recently, Jason became licensed to practice law in his home state of New York.

Jeffrey R. Monroe commenced his legal career in the Raleigh office of a mid-sized insurance defense firm, where he handled a variety of litigation matters throughout the state, including defending individuals and companies in personal injury claims, construction defect claims, and business disputes.   Since joining Miller & Monroe in 2013, Jeff has litigated business disputes, estate and fiduciary disputes, personal injury claims, and a variety of other civil litigation matters.

The post Jason Miller and Jeff Monroe named to 2016 Legal Elite list. appeared first on Miller Monroe Holton & Plyler.