The Court dismissed a defamation claim. It found that the claims were not plead with sufficient particularity (omitting in some instances to state to whom the statements were made and when they were made). One allegedly defamatory statement was subject to an absolute privilege, which covers "not only . . . statements made in the
Fliehr v. Storick, December 11, 2007 (Diaz)(unpublished)
Although Plaintiff’s claims were timely against the insurance agent they claimed had defrauded them, those claims were not timely against the agent’s employer. The agent had terminated his relationship with his employer several years before the lawsuit was filed. Although the statute did not run against the agent, because the alleged fraud continued, the Court
Fliehr v. Storick, December 3, 2007 (Diaz)(unpublished)
A manager of an limited liability company may not, as a condition of the payment of consideration from a merger of the LLC, require that the member receiving the consideration execute a general release exonerating the manager and insiders from any misconduct. Holding the consideration "hostage" in exchange for such a release might amount to willful and
Cox v. Mitchell, February 6, 2008 (Tennille)(unpublished)
Paintiffs, who had suffered signficant losses on variable annuity policies sold to them by the defendant agents and insurance companies, asserted claims on multiple theories: breach of fiduciary duty, constructive fraud, unfair and deceptive practices, negligence, negligent misrepresentation, aiding and abetting breach of fiduciary duty, and unjust enrichment.
The Court dismissed some claims and ordered
Braun v. Earthworks Lawn & Landscape, Inc., June 2007 (Diaz)(unpublished)
The Court denied Defendant’s motion to dismiss Plaintiff’s unfair and deceptive practices claim. It rejected the argument that the matter before the Court was simply a private dispute which did not implicate the consuming public or the general marketplace, and was therefore not "in commerce."
The Court held that the statute reaches "derivative claims arising
Azalea Garden Board & Care, Inc. v. Vanhoy, February 28, 2008 (Tennille)(unpublished)
Defendants moved to dismiss on the ground that their signatures did not appear on the agreement which was the subject of the suit. The Court denied the motion based on plaintiff’s claim that the defendants were co-adventurers. Since adventurers in a joint venture are treated as partners in a partnership, the signature of one alleged
Azalea Garden Board & Care, Inc. v. Vanhoy, February 28, 2008 (Tennille)(unpublished)
The issue here was the timeliness of Plaintiff’s claim against the estate of one of the defendants. The Plaintiff had failed to serve that defendant’s personal representative with notice of his claim within the 90 day period prescribed in N.C. Gen. Stat. §28A-19-3(a).
The Plaintiff argued that it was excused from the notice requirement because
Brandson v. PCJ Ventures, LLC, February 22, 2008 (Jolly)(unpublished)
The Court found a shareholders agreement between the parties to be poorly drafted and ambiguous, determined that it would need to consider extrinsic evidence in order the properly interpret the agreement, and denied the parties’ cross-motions for summary judgment.
Webb v. Royal American Company, LLC, March 17, 2008 (unpublished)
Claims against the lender which had financed an acquisition gone awry were barred by the exculpatory provisions of a subordination agreement. Georgia law applied, and Georgia law permits one contracting party to waive all recourse in the event of breach by the other. The exculpatory provision was valid and an absolute defense to plaintiffs’ claims
NY Lawsuit Trumps NC Lawsuit, Even Though NC Lawsuit Was First Filed
Wachovia Bank, N.A. v. Harbinger Capital Partners Master Fund I, Ltd., 2008 NCBC 6 (N.C. Super. Ct. March 13, 2008) (Diaz)
Wachovia was first to file its claims in North Carolina Superior Court, but the Business Court nevertheless stayed the action in favor of a later filed New York action.
The claims in both cases involved Wachovia’s arranging of $285 million in credit for Le Nature, which collapsed in a massive accounting fraud. After the fraud was revealed, the Defendants purchased some of Le Nature’s debt on the secondary market with the express intention of suing Wachovia for alleged complicity in the fraud.
Wachovia, in an effort to preempt the expected lawsuit by the Defendants in New York, filed a declaratory judgment in North Carolina and obtained an injunction prohibiting the Defendants from asserting any "personal tort claims." Wachovia asserted that Defendants had engaged in "illegal trafficking in litigation claims."
Undeterred, Defendants went ahead and filed a lawsuit against Wachovia Capital Markets in the Southern District of New York alleging a RICO violation. Defendants then moved to stay the North Carolina action pursuant to N.C.G.S. Sec. 1-75.12 in favor of their own later filed action. The Court granted the motion after considering the ten factors enumerated in Lawyers Mut. Liab. Ins. Co. v. Nexsen Pruett Jacobs & Pollard, 435 S.E.2d 571, 573 (N.C. App. 1993).Continue Reading NY Lawsuit Trumps NC Lawsuit, Even Though NC Lawsuit Was First Filed