Miller Monroe & Plyer is pleased to announce that it obtained a $4.9M settlement on behalf of a girl with a non-verbal form of autism and her family in January of 2022.  This verdict was highlighted publicly for the first time in the November 21, 2022, edition of Lawyers Weekly.

In 2016, the 15-year-old girl was placed in an unlicensed alternative family living home and suffered life-threatening injuries at the hands of her caregivers, resulting in the child being hospitalized for eight weeks and undergoing multiple surgeries.  MMHP pursued multiple claims on behalf of the girl and her family in two actions – one in state court and one in federal court.  The state action included claims against the local management entity (“LME”) and three provider agencies.  The federal action included six claims – five claims alleging violations of 42 U.S.C. 1983 and one claim alleging violations of Title VI of the Civil Rights Act, which were asserted against the LME that made the placement and seven of the LME’s employees.

Attorneys Jeff Monroe, William Plyler, and Jason Miller represented the plaintiff, with support throughout the six-year representation by paralegal Jennifer Garvey.

Click to Read Full Article: “Autistic girl, family awarded $4.9M settlement after abuse.”

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Impossibility/Impracticability of Performance

The first two doctrines are “Impossibility of Performance” and “Impracticability of Performance”. Impossibility excuses both parties to a contract from having to perform where the subject matter of the contract is destroyed.  “Impossibility of performance is recognized in this jurisdiction as excusing a party from performing under an executory contract if the subject matter of the contract is destroyed without fault of the party seeking to be excused from performance.” WRI/Raleigh, L.P. v. Shaikh, 183 N.C. App. 249, 253–54, 644 S.E.2d 245, 247–48 (2007) (citing Brenner v. Little Red School House, Ltd., 302 N.C. 207, 210, 274 S.E.2d 206, 209 (1981). See also Steamboat Co. v. Transportation Co., 166 N.C. 582, 82 S.E. 956 (1914) (applying doctrine to contract between ship owner and party leasing it for ferrying purposes when ship was destroyed by fire through no fault of parties); Barnes v. Ford Motor Co., 95 N.C. App. 367, 382 S.E.2d 842 (1989) (affirming trial court’s instruction on doctrine of impossibility where subject matter of lease, a tractor, was destroyed).  The related doctrine of impracticability can excuse performance where the performance is not practicable for the performing party.  Impracticability also requires an occurrence of an event outside of the control of the parties and which could not have reasonable been foreseen at the time of the contracting.

Frustration of Purpose

Another legal doctrine, “Frustration of Purpose,” is similar to “Impossibility of Performance,” but provides broader applicability. “Although the doctrines of frustration and impossibility are akin, frustration is not a form of impossibility of performance.  It more properly relates to the consideration for performance.  Under this doctrine performance remains possible, but is excused whenever a fortuitous event supervenes to cause a failure of the consideration or a practically total destruction of the expected value of the performance. The doctrine of commercial frustration is based upon the fundamental premise of giving relief in a situation where the parties could not reasonably have protected themselves by the terms of the contract against contingencies which later arose.’ ” Shaikh, 183 N.C. App. 253–54, 644 S.E.2d 247–48 (citing Brenner, 302 N.C. at 211, 274 S.E.2d at 209 (quoting 17 Am.Jur.2d Contracts § 401).

However, the doctrine of frustration cannot be used where the frustrating event was reasonably foreseeable. Id. (citing Brenner, 302 N.C. at 211, 274 S.E.2d at 209).  The legal question will be whether the impact of the COVID-19 pandemic was reasonably foreseeable for the vendor/landlord and the business owner.

Conclusion

Although the cases discussed above do provide arguments as to potential defenses for business owners, North Carolina courts have been quite reticent to allow tenants to use these defenses where the property that is the subject matter of the contract was not physically destroyed.  Typically, Courts have attempted to defer to the language of the contract – such as a Force Majeure provision that provides temporary relief to parties during an “Act of God.”  This blog post is not intended to provide the false illusion that these defenses will prevail in protecting business owners against damages claims by vendors/landlords.  Our hope is simply that the recognition of the potential defenses and the very real possibility that Courts of this state might just apply these defenses in the context of COVID-19 will serve as a strong incentive for business operators and vendors/landlords to work collaboratively to find solutions that allow our bars, restaurants, hotels and other businesses to continue serving our community long after this crisis passes, while not creating undue financial distress on vendors and property owners.

About Us

At Miller Monroe Holton & Plyler, our attorneys have extensive experience litigating contract and business disputes.  More importantly, we are committed to our community and hope to serve as a resource to help business owners mitigate losses and resume normal operations after this crisis subsides.  If you are facing a contract dispute involving your business, please do not hesitate to call us at 919-809-7346.

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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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Right of Survivorship

A common key feature of a joint bank account is the right of survivorship.  When one joint owner dies, the surviving owner automatically takes ownership of all funds in the account.  The funds pass to the surviving account owner outside of the estate, so the right of survivorship controls over any terms in the decedent’s will.  The clarity provided by the right of survivorship in joint bank accounts can be helpful to surviving spouses and family members responsible for administering an estate.

Ownership of Joint Accounts

Despite the clarity surrounding survivorship rights, a common misconception about ownership of joint account funds can lead people into trouble.  Ownership of a joint bank account is shared between two people.  However, even though they share ownership of the account, the account holders do not necessarily share ownership of the funds in the account.  In other words, the mere presence of funds in a joint account does not mean that the funds are owned jointly.  This distinction may seem like semantics, but it can significantly impact the use of the account funds.

Here, context is everything.  In determining the owner of funds in a joint account, North Carolina courts will observe who deposited funds into the account, the source of the funds, and the intent of the depositor, among other factors.

In many cases, funds deposited in a joint account are intended for shared ownership.  For example, if the account holders are married and the funds deposited are earned income to be used for ordinary household expenses, ownership may be shared evenly.

In other cases, funds remain the sole property of the depositor despite being held in a joint account.  Where a daughter is helping her elderly father manage his finances, they may open a joint bank account funded by the father’s assets.  In that scenario, the father would typically maintain ownership of the funds during his lifetime despite sharing ownership of the account with his daughter.

However, many cases are less clear and present a challenge for family members evaluating the transactions completed by the joint account holders.

Ripe for Abuse

Let’s imagine an aging man who finally asks for his dutiful eldest daughter for help in managing his affairs.  The father converts his checking and savings accounts to joint accounts with right of survivorship with his daughter to give her full access to his accounts and authority to make payments.  The father’s social security payments are deposited directly into the joint checking account, and she pays his monthly expenses with the joint accounts.  The daughter takes over managing his finances and scheduling, drives him to doctor appointments, does his grocery shopping, and cleans his house.

Over time, the daughter begins to add a few extra items for herself to the grocery list and fills up her gas tank with her father’s funds.  Then she begins writing checks to herself from the joint account – perhaps intended as “reimbursements” for her expenses or even her time.  The daughter considers her right of survivorship in the account and her father’s plan to pass the funds in his joint accounts to her.  She wrongly believe that her status as joint owner of the account gives her the right to spend the money however she wants.

One day, her siblings decide to meet and discuss her father’s diminished mental capacity and his finances.  The siblings are concerned about the numerous transactions in the joint account.  Did he approve the use of funds for her benefit?  Did he intend for those checks to the daughter to be gifts?  How much did he understand?  Did he even know about the transactions?  And what about the decision to liquidate an investment and move money into the joint accounts?  Did he really intend for those funds to pass directly to the daughter by right of survivorship upon his death?  The siblings are left in the unenviable position of evaluating their sister’s conduct without the benefit of their father’s input.

Hopefully, it is clear that a joint account intended for use by only one of the owners is ripe for abuse.

Liability for Misuse of Funds

When one account owner withdraws or spends joint account funds without the joint owner’s knowledge or consent, he may be liable to the owner for misusing those funds.  When evaluating the management of a joint account, one must consider who owns the funds, whether the owner approved of the use of funds, and whether the funds were used in the owner’s best interest.  These matters are particularly challenging when the owner’s mental capacity was diminished, and they often involve family dynamics and relationships are just as important to the parties as any monetary outcome.

At Miller Monroe Holton & Plyler, our attorneys have experience prosecuting and defending claims involving the misuse and conversion of funds in joint bank accounts, as well as similar claims involving abuse of powers of attorney and breaches of fiduciary duty by guardians, estate administrators, and trustees.  We appreciate every opportunity to aid individuals navigating such difficult circumstances and seeking to protect a family member.

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All too often, our commercial litigators sit down with a potential client to learn of allegations of fraud against a business partner, employee, or fiduciary.  While an actual fraud claim is obvious in these instances, a constructive fraud claim can be much more powerful.  A constructive fraud claim is based on the exploitation of a position of trust rather than a specific misrepresentation.

The clearest benefit of proving constructive fraud is the time period in which the claim must be filed.  A fraud claim has a 3-year statute of limitations, meaning that a claimant can only recover for damages resulting from fraudulent conduct that occurred in the 3-year period starting when the claimant knew or should have known about the conduct.  On the other hand, there is a 10-year statute of limitations on constructive fraud claims.  This can be critical in cases of employee or partner embezzlement where the instances of fraud can span several years.

Another benefit of a constructive fraud claim relates to a shift in the burden of proof, which can make or break a case.  When a person who stands in a confidential or fiduciary role obtains a personal benefit from that relationship, there is a legal presumption that a constructive fraud occurred.  This means that a defendant must present sufficient evidence to overcome a legal presumption of wrongdoing in order to avoid liability.

To show constructive fraud, a claimant must present evidence that (1) a confidential or fiduciary relationship existed which (2) led up to and surrounded the consummation of a transaction in which the defendant is alleged to have taken advantage of his position of trust to the detriment of plaintiff.  The key issue in these cases is often whether the fraudulent actor stood in a confidential or fiduciary relationship with the claimant.  While potential clients often assume that they stand in a fiduciary relationship with their business partners or family members, this is not always the case.  The particular roles and responsibilities, ownership stakes, and other factors must be carefully considered.

A constructive fraud claim can be very powerful, but requires a litigator who understands how to plead these claims, discover facts and documents to support these claims, and how to present this evidence to a judge or jury.  The attorneys at Miller Monroe Holton & Plyler have substantial experience litigating constructive fraud and other complicated commercial claims.  We have the expertise needed to effectively prosecute these claims.  If you or someone you know has been damaged by the conduct of a business partner, fiduciary, or someone in a position of trust, call Miller Monroe Holton & Plyler today.

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The STCA covers claims which arise “as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina.” N.C.G.S. §143-291(a). The STCA also covers tort claims against any county board of education or city board of education “as a result of any alleged negligent act or omission of the driver . . . of a public school bus.” N.C.G.S. §143-300.1.

The STCA applies only to claims of negligence. It does not bar lawsuits against the state or state employees for other types of claims, such as breach of contract or violation of constitutional rights.

STCA claims are filed with the N.C. Industrial Commission. The State is represented by the N.C. Attorney General. A STCA claimant does not have a right to a jury trial. Rather, claims are heard by a deputy commissioner, with a right to appeal to the full Commission. Upon receipt of a decision and order from the full Commission, either the claimant or the State may appeal the decision to the N.C. Court of Appeals.

STCA claims must be filed within three years after the accrual of the claim, or if death results from the accident, the claim for wrongful death must be filed by the personal representative of the deceased within two years after death.

A major distinction between a STCA claim and a regular tort lawsuit is the cap on damages in a STCA claim. “The maximum amount that the State may pay . . . to any one person arising out of any one occurrence . . . shall be one million dollars ($1,000,000).” N.C.G.S. §143-299.2. A tort lawsuit filed in state or federal court has no damage cap. Other than the damage cap, the damages recoverable in a STCA claim are essentially the same as in a personal injury lawsuit – compensation for medical bills, lost wages, permanent injury and scarring, and pain and suffering.

Miller Monroe Holton & Plyler has successfully prosecuted numerous STCA claims, including a recent recovery of $750,000 for a motorcyclist injured by the negligence of a public school bus driver (see photo of the motorcycle above). We also represent people who are injured by the negligence of federal employees, pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. 28 U.S.C. §1346(b), §1402(b), §2401(b), and §§2671-2680.

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During the pendency of the criminal case, Michelle’s mother, Linda Fisher, filed a wrongful death action against Jason Young on behalf of Michelle’s estate.  On March 16, 2009, default judgment was entered in the amount of $3,893,276.10 in compensatory damages, plus interest, and $11,679,828.30 in punitive damages.  Jason Young’s attempt to have the wrongful death judgment discharged in bankruptcy were unsuccessful.  Except for a small credit for an equity interest in a property sold at an execution sale, no payment was made on the judgment.

Civil judgments expire after ten years in North Carolina; however, an action on a judgment (a new lawsuit) may be filed to “renew the judgment” for another ten years.  The attorneys who represented the estate in the original action are no longer practicing law.  Consequently, Meredith Fisher Vanterpool, Michelle’s sister and the legal guardian of Michelle’s daughter, needed new counsel to file the action on the judgment.

Miller Monroe Holton & Plyler agreed to file the action on behalf of Michelle’s daughter, the sole beneficiary of the estate, through Meredith as the guardian ad litem.  Michelle’s estate had been closed for years.  Jason Young’s attorney asserted two arguments in support of a motion to dismiss the new action: 1) that Jason Young’s daughter was not the real party in interest; and 2) that the debt had been discharged in bankruptcy.  Superior Court Judge Andrew T. Heath rejected both arguments and denied the motion to dismiss.

By order dated August 5, 2019, Superior Court Judge A. Graham Shirley granted the plaintiff’s motion for summary judgment and entered a new judgment against Jason Young.  The new judgment totals over $28 million.

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What is Eminent Domain?

Eminent Domain refers to the legal process by which the government uses its power to take private property for public use, such as the construction of roads, highways, schools, parks, or municipal buildings. Federal, state, and local governments are all vested with eminent domain power.

By law, the government is required to offer a landowner “just compensation” for his property. However, this does not necessarily mean that what the government would offer you for your property would be fair, reasonable, or an accurate reflection of its value.

Anyone who owns private property may be subject to a government “taking” or “condemnation” of his land. If your property is at issue in a condemnation action, here is what you can expect from a practical standpoint.

The Process

Before any action is filed with the court, it is standard practice for the government, through the DOT, to attempt to negotiate the value of the land. By law, the government has to provide property owners with notice of their intent to take the property under eminent domain at least 30 days before filing an action in court. Typically, the DOT will tender an offer to the homeowner to purchase the property. The government does not have to attempt to negotiate the property’s value before filing suit but does have to provide notice. At this point, it is advisable to engage an attorney to help you navigate the pre-suit negotiation process.

The government is constitutionally required to offer you reasonable and just compensation for your property based on its fair market value, but it is in your best interest as a property owner to scrutinize this offer as it may not be satisfactory. You have the legal right to reject the offer and challenge it in court. To do this, property owners can opt to work with a lawyer to hire an independent appraiser to value the property. This appraisal can be used as a negotiation tool when either rejecting the DOT’s initial offer or providing a counter-offer.

If the parties cannot agree on the property’s value, the DOT will file a complaint with the Clerk of Superior Court in the county in which the property is located. The DOT will also deposit its best estimate of the property’s value with the clerk’s office. Once the complaint is filed and the money deposited, both the title and the right to immediate possession of the property belong to the condemning party. As the property owner, you may apply to the court to collect all or part of the deposit for the land, even if you plan to challenge the valuation of your property.

Property owners have 12 months to respond to a condemnation lawsuit. If the matter cannot be settled outside of court, the parties will litigate the property’s value and seek a determination of value from the court.

Seeking legal counsel

If your property is facing condemnation, it is critical that you don’t attempt to navigate the process on your own. Appraising your property, negotiating with the government, and handling the logistics of a condemnation action can be complicated and it is advisable to seek an experienced attorney to represent your best interests. Contact us if you have additional questions or need legal representation in a condemnation action.

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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.

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Ancillary to Plyler’s lawsuit, Dell litigated a dispute with the North Carolina Department of Revenue, which was adjudicated by the International Institute for Conflict Prevention and Resolution.  In a 2-1 decision, the Institute agreed with the claims in Plyler’s lawsuit and determined that the maintenance agreements were not in fact taxable under North Carolina law.   With this determination in hand, Plyler and his co-counsel negotiated a settlement with Dell under which it was required to refund taxes illegally collected, up to the total amount of $13,000,000.00, from any individuals that submitted a claim.  Ultimately, the claims made by consumers resulted in Dell being forced to refund $3,014,809 to consumers and another $1,850,00.00 in attorneys’ fees and expenses.

Fredric Ellis, Edward Rapacki, and Joseph Makalusky of Ellis & Rapacki in Boston were Plyler’s co-counsel on this case.

The attorneys at Miller Monroe Holton & Plyler have significant experience bringing legal actions aimed at protecting consumers from corporate wrongdoing.  If you believe a corporation is illegally billing or otherwise taking advantage of consumers, please call our office today to discuss whether Miller Monroe Holton & Plyler might be able to assist.

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

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