I had an out of state lawyer call me, concerned, a few weeks ago. He was defending a client in his home state in a case in which the plaintiff’s counsel had obtained commissions to take depositions in North Carolina. The depositions were scheduled to begin in just a few days, and he was concerned
Take A Look At The New Raleigh Business Court
Here are a few pictures of the new North Carolina Business Court in Raleigh, thanks to Judge Jolly and his staff giving me a quick tour yesterday. The Court moved to the Campbell Law School’s new Raleigh building on October 1st.
You’ll see that there is a broad stretch of windows behind the Judge’s bench
Judge Diaz Under Consideration For Fourth Circuit Court Of Appeals
Judge Albert Diaz of the North Carolina Business Court may be nominated by President Obama to the Fourth Circuit Court of Appeals, according to the Charlotte Observer.
And speaking of Judge Diaz, here’s an interview of him that I hadn’t seen before. The part about the pink hippopotamus is especially interesting.
North Carolina Court Of Appeals Rules That Electronic Signature Satisfied The Statute Of Frauds
Digital signatures and medieval law met today in the North Carolina Court of Appeals decision in Powell v. City of Newton, and the twenty-first century emerged the winner.
The Court enforced a settlement agreement involving a conveyance of land, even though no agreement reflecting the transaction had been signed as required by the Statute of Frauds. It relied, in part, on emails between counsel reflecting the settlement and circulating the necessary deed. It held that these satisfied the signature requirement, relying on North Carolina’s Uniform Electronic Transactions Act.
The case arose from the settlement by the parties of their lawsuit in open court, during trial. The transcript reflected Plaintiff’s agreement to convey property to the Defendant as a part of the settlement. A settlement agreement was circulated by email between the lawyers for the parties after that, but Plaintiff refused to sign.
The Electronic Signature Of Plaintiff’s Counsel Satisfied The Statute Of Frauds
Plaintiff based his refusal to follow through on the Statute of Frauds, which requires an agreement to convey land to be in writing, and "signed by the party to be charged." The trial court ordered Plaintiff to sign the settlement papers, and the Court of Appeals majority affirmed. It held that there had been "total compliance" with the Statute of Frauds. It based its decision, in part, on North Carolina’s Uniform Electronic Transactions Act, N.C. Gen. Stat. §66-311 et seq). As far as I know, this is the first mention of that statute by the Court of Appeals.
Judge Jackson, writing for the majority, said:
We note that this was not some barroom conversation between drunken neighbors, agreed to in jest, and written on a random scrap of paper. See Lucy v. Zehmer, 84 S.E.2d 516 (1954). This was an agreement among four parties represented by counsel, in a court of law, supervised by the presiding judge, who inquired of each party whether the terms were agreeable. The party to be charged — plaintiff — confirmed, ‘Yes, that’s my agreement.’
The Court observed that emails had then passed back and forth between counsel regarding the settlement, including drafts of a settlement agreement and a deed. This led to the Court’s first impression reliance on the Uniform Electronic Transactions Act. The Court said:
Pursuant to that Act, plaintiff’s counsel affixed his electronic signature to emails concerning the transaction. . . . When the hearing transcript, draft agreement, draft quitclaim deed, and associated emails are read together, as permitted by the statute of frauds, the settlement agreement that plaintiff was ordered to execute is in total compliance with the statute of frauds.
Other Grounds
The majority also provided other grounds for its decision, including the doctrine of judicial estoppel and a discussion whether the Statute of Frauds should apply at all to court announced settlements.Continue Reading North Carolina Court Of Appeals Rules That Electronic Signature Satisfied The Statute Of Frauds
If You Are Proposing An In Camera Review, Try To Make It As Easy As Possible For The Judge
When lawyers are arguing over whether documents were properly withheld from production on the basis of attorney-client privilege, one side or the other will often say "let’s have the Judge do an in camera review." (Translation for nonlawyers reading this blog: let’s drop all these documents on the Judge and let him or her decide).
Claims Involving The “Raising Of Capital” Aren’t Covered By North Carolina’s Unfair And Deceptive Practices Statute
Claims involving the "raising of capital" don’t fall within the scope of North Carolina’s unfair and deceptive practices statute. That was the basis for the dismissal of Chapter 75 claims yesterday in two cases, one decided by the North Carolina Court of Appeals and the other by the North Carolina Business Court.
In the Court
Making Every Day Count: Time Computation Amendments To The Federal Rules Of Civil Procedure Take Effect December 1, 2009
Get ready for changes in how to count the days for meeting deadlines under Rule 6 of the Federal Rules of Civil Procedure. The upcoming changes abandon the practice of excluding weekend days and holiday days in calculating a response date when the period for the response is less than eleven days.
On December
New Cases In The North Carolina Business Court: September 2009
Eleven new cases were designated to the Business Court in September 2009, including a class action against the North Carolina Department of Revenue claiming that the taxation of retirement benefits paid to certain state employees is unconstitutional (Pendergraph).
Bankers Life and Casualty Co. v. Barnes (Mecklenburg)(Diaz): claims for misappropriation of confidential information and trade