After a case is designated to the Business Court, the Clerk of Court in the county in which the case is pending no longer has the authority to grant a motion for extension of time.  In this case, per Business Court Rule 9.2, the Court struck the Order entered by the Clerk granting an extension of time and directed the party to re-file a motion in compliance with the rules of the Court.


The electronic filings on the Business Court website are public records, which the public has the right to inspect.  The Court’s power to place filings under seal, or to limit the public’s right of access, is permitted “when there is a compelling countervailing public interest and closure of the court proceedings or sealing of documents is required to protect such countervailing public interest.” (citing Virmani v. Presbyterian Health Servs., 350 N.C. 449, 476,515 S.E.2d 675, 693 (1999).  There is no distinction between a record available online at the Court’s website or one available in a paper file at a county courthouse.

Full Opinion


The Court rejected Plaintiff’s argument that a provision limiting its recovery of damages for breach of contract was an unenforceable penalty, ruling instead that this was a valid liquidated damages provision. 

The Court also found there to be a question of fact whether one of the Defendants had been a part of a joint venture, so that he could be personally bound under a contract even though he had not signed it.  The Court denied this Defendant’s statute of frauds argument on that basis, stating the following with regard to joint ventures:

{14}  A joint venture is “an association of persons with intent, by way of contract, express or implied, to engage in and carry out a single business adventure for joint profit, for which purpose they combine their efforts, property, money, skill, and knowledge, but without creating a partnership in the legal or technical sense of the term.” Pike, 274 N.C. at 8, 161 S.E.2d at 460 (citing In re Simpson, 222 F. Supp. 904, 909 (M.D.N.C. 1963)). An express agreement is not required to prove the existence of a joint venture. See Rhue v. Rhue ___ N.C. App. ___, ___, 658 S.E.2d 52, 59 (2008); see also Wike v. Wike, 115 N.C. App. 139, 141, 445 S.E.2d 406, 407 (1994). Rather, intent to create a joint venture can be inferred by the conduct of the parties and the surrounding circumstances. See Rhue, ___ N.C. App. at ___, 658 S.E.2d at 59; see also Wike, 115 N.C. App. at 141, 445 S.E.2d at 407. The existence of a joint venture “may be based upon a rational consideration of the acts and declarations of the parties, warranting the inference that the parties understood that they were [co-adventurers] and acted as such.” Davis v. Davis, 58 N.C.App. 25, 30, 293 S.E.2d 268, 271 (1982) (citing Eggleston v. Eggleston, 228 N.C. 668, 674, 47 S.E. 2d 243, 247 (1948)). “Facts showing the joining of funds, property, or labor, in a common purpose . . . in which each has a right . . . to direct the conduct of the other[s] through a necessary fiduciary relation[ship]” is sufficient for finding the existence of a joint venture. Pike, 274 N.C. at 8, 161 S.E.2d at 460; Cheape v. Chapel Hill, 320 N.C. 549, 561, 359 S.E.2d 792, 799 (1987).

{15} In North Carolina, joint ventures are similar to partnerships, and they are “governed by substantially the same rules.” Jones v. Shoji, 336 N.C. 581, 585, 444 S.E.2d 203, 205 (1994). A hallmark of a partnership is the sharing of “any profits, income, expenses, joint business property or hav[ing] authority of any kind over each other.” Wilder v. Hobson, 101 N.C. App. 199, 203, 398 S.E.2d 625, 628 (1990).

In another opinion issued at the same time in the same case, the Court granted the motion for summary judgment of another Defendant (Allen) on the same grounds, finding that there was no genuine material issue of fact as to Allen’s lack of association with the claimed joint venture.  That opinion is Azalea Garden Board & Care v. Vanhoy, 2008 NCBC 7 (N.C. Super. Ct. March 17, 2009).

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N.C. Gen. Stat.  §41-23, which repealed the common law Rule Against Perpetuities as well as the Uniform Statutory Rule Against Perpetuities (N.C. Gen. Stat. §41-15) as they apply to trusts created or administered in North Carolina is constitutional.

The prohibition against “perpetuities and monopolies” found at Article I, Section 34 of the North Carolina Constitution applies only to unreasonable restraints on the alienation of property and not to the vesting of remote interests.

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Plaintiff’s Brief in Support of Motion for Summary Judgment

Defendant’s Brief in Opposition to Motion for Summary Judgment

Plaintiff’s Reply Brief in Support of Motion for Summary Judgment

Amicus Brief of North Carolina Bankers Association

When a Court is considering whether to apply the law of a foreign country, as permitted by Rule 44.1 of the North Carolina Rules of Civil Procedure:

  • The Court has "[b]road authority to conduct [its] own independent research to determine foreign law," but no duty to so.
  • Both parties have the burden to "raise[]the issue that foreign law may apply in an action, and the burden of adequately proving foreign law to enable the court to apply it in a particular case."
  • When the "parties fail to satisfy either burden the court will ordinarily apply the forum’s law."

The Business Court applied North Carolina law, because the parties hadn’t provided the Court "with any authority or evidence from which it might discern how French law would evaluate the validity and scope of the forum selection clause in the" Agreements. 

The Court also enforced a forum selection clause, even though the party asserting the benefit of it [Swift] hadn’t signed the agreement.  Judge Diaz reasoned that the only signature required should be that of "the party to be charged therewith," that Swift had signed the Agreement, and that the Agreements spoke to Swift’s obligations to the party seeking enforcement of the forum selection clause.  He also relied on cases involving arbitration provisions, which are often enforced against non-signatories when the claims are "intimately founded in and intertwined with the underlying contract obligations."  The Judge also noted the "strong seal of approval that our Supreme Court has given to contract clauses requiring litigation in a foreign jurisdiction."

The Court rejected the public policy argument that it simply wasn’t fair for Swift to have to litigate its claims in France.  Swift said it would "be deprived of the full scope of discovery that would otherwise be available in" the Business Court.  Judge Diaz said there was "no authority . . . for the proposition that merely requiring a party to litigate in a forum with substantially different discovery rules than those applied in a U.S. court is sufficient cause to override the parties’ choice of forum."  Swift was neither "deprive[d] of its day in court" nor "without an adequate remedy."

Full Opinion

Brief in Support of Motion to Dismiss Crossclaim

Brief in Opposition to Motion to Dismiss Crossclaim

Reply Brief in Support of Motion to Dismiss Crossclaim


The issue here was whether a Plaintiff located in Winston-Salem which held a state trademark registration was entitled to an injunction against a competing store with a similar name located in Charlotte.

Judge Diaz applied federal Lanham Act principles in deciding whether the Plaintiff had a sufficient market presence in the Charlotte area to warrant injunctive relief.  He said that "North Carolina’s common law is no different" from federal law in determining the rights of a senior user. Op. n.7.

The established tests for injunctive relief when a senior user sues a junior user are "(1) the market penetration test, which applies where the senior user actually uses its mark in the market in which it seeks an injunction; or (2) the ‘zone of natural expansion’ test, which applies where the senior user has not actually penetrated the market, but may be likely to do so."  Op. ¶70.

The Plaintiff failed the market penetration test.  Although it had averaged annual sales in Mecklenburg County of $66,024 over a fifteen year period, the level of sales had fluctuated over that time and the sales were inconsequential when measured against the total sales of jewelry in that area. Mecklenburg County jewelery stores had sold $138,578,260 of jewelry in 2006, for example, much of it undoubtedly available for much less now in area pawnshops. 

Further leading to the Plaintiff’s lack of success was that it had completed only 88 transactions in Mecklenburg County in 2006, but the average jewelry store there completed 1,718 transactions.  Plaintiff also hadn’t done any advertising targeted at the Charlotte market. 

The Plaintiff also couldn’t meet the zone of natural expansion test.  Although it presented evidence that it had "considered" opening a Charlotte store, Judge Diaz found that Plaintiff had not taken any concrete steps to enter the Charlotte market. 

Full Opinion

Brief in Support of Motion for Temporary Restraining Order

Brief in Opposition to Motion for Preliminary Injunction

Reply Brief in Support of Motion for Preliminary Injunction

The Court denied the entry of a mandatory injunction requiring the Defendant to deliver the title to a motor vehicle to a third party purchaser. 

The Court observed that “'[m]andatory injunctions are disfavored as an interlocutory remedy[]’ because, rather than maintaining the status quo (as is the case when a prohibitory injunction issues), a mandatory injunction effectively alters it."

The Court held that such an injunction is appropriate where a plaintiff provides proof of “serious irreparable injury to the [plaintiff] if the injunction is not granted, no substantial injury to the [defendant] if the injunction is granted, and predictably good chances of success on the [merits].”

The injunction requested by the Plaintiff was denied for several reasons, including because Plaintiff’s claimed injuries would be compensable by money damages and there was therefore no irreparable harm.

In a Uniform Commercial Code sidelight, the Court discussed the concepts of attachment, perfection, and priority, and held that Defendant might have a valid purchase money security interest under the UCC even though it had not perfected its claimed security interest.  The Court held "the Court has found no case (and Plaintiff cites none) holding that the failure to perfect a security interest deprives a secured creditor of its remedies against the debtor for default, including its right to demand possession of proceeds in the possession of the debtor following the unlawful sale of the creditor’s collateral."

Full Opinion

Brief in Support of Motion for Preliminary Injunction

Brief in Opposition to Motion for Preliminary Injunction

Reply Brief in Support of Motion for Preliminary Injunction

The Court struck an Entry of Default which had been signed by an assistant clerk of court in the county where the case had been filed.  The entry of default was signed after the case was designated to the Business Court.  Judge Diaz cited Business Court Rule 15.1, stating:

Because the above-captioned cases are Business Court cases, the Clerk of Court had no authority to enter this Order and Entry of Default. See BCR 15.1 (“After a case has been assigned or designated to the Business Court, and for as long as the case is pending in [the Business] Court, parties shall seek rulings on all motions in the case from [the Business] Court, and not from Superior Court Judges or Clerks in the counties where the cases originate.”).

Full Opinion

The Court ruled that Defendants’ appeal, following an adverse judgment on liability, did not affect a substantial right even though the damages phase of the trial remained.  The Court found that it had continued jurisdiction over the case and that it could proceed with the damages phase notwithstanding the pendency of the appeal. The Court also ruled that it would not stay the case during the pendency of the appeal. 

The Court denied the Plaintiffs’ request for the appointment of a receiver, but held that it would impose conditions on the Defendants’ operation of their business.  It held that:

The Court’s greater power to appoint a receiver for the Company logically includes the lesser power to require the parties who are in control of the Company’s assets to maintain those assets in an appropriate and businesslike manner, including hiring an independent accountant to maintain the books and records of the company pendente lite and directing [the Defendants] to cease making personal use of Company assets.

Full Opinion