This case enforced an arbitration provision, even though the Plaintiff had never signed the agreements which contained the arbitration provision.
A Motion to Compel Arbitration was granted, because the Plaintiff had done the work described in the agreements and was seeking payment pursuant to those agreements, it had submitted applications for payment pursuant to the
This case interpreted South Carolina law — different than North Carolina law — on the enforceability of a confidentiality agreement that the Defendant argued was overly broad.
The South Carolina precedent is Carolina Chemical Equipment Co. v. Muckenfuss, 471 S.E.2d 721 (S.C. 1996), where the South Carolina Supreme Court held that a broad confidentiality
The Business Court’s plate is pretty full as we move into the new year of 2009. This post summarizes the dispositive motions pending before the Court that are fully briefed and ready for a ruling.
These cases cover a broad range of issues, summarized by general categories below, including: class actions, construction law, derivative actions, breach of fiduciary duty/unfair competition, jurisdiction, partnership, securities fraud, shareholder/member disputes, trademark law, trusts, and uniform commercial code.
As you read on, a few disclaimers. First, this only covers dispositive motions. There are certainly other, non-dispositive motion pending. Second, I may have missed some. And third, these summaries are deliberately short. I’m not trying to cover all of the issues that might be included in a dispositive motion filing, just trying to give you a general idea of rulings that may be coming down in the next several months. That’s involved a quick look at the briefs. And on that note, a number of the cases involves multiple issues and don’t fall exclusively into one category.
Each summary includes a link to the Business Court electronic file.
Class Actions
Clark v. Alan Vesture Auto Group, Inc.: This is a putative class action against an automobile dealer for allegedly misleading financing practices. Pending are a motion to dismiss two defendants because of insufficiency of service of process, and a motion for summary judgment. One issue is whether the Court should consider the dispositive motion before discovery and at the same time as its ruling on the class certification motion.
Construction Law
Miller & Long Co., Inc. v. Intracoastal Living, LLC: The issues in this construction law case involve collection on a payment bond and enforcement of a claim of lien.
Wachovia Bank N.A. v. Superior Construction Corp.: The issue in this construction law case is the priority of Wachovia’s deed of trust versus a previously filed mechanics lien, where the lienholder had accepted some payment on its lien and executed a partial waiver of lien.
RJM Plumbing, inc. v. Superior Construction Corp: Motion for summary judgment by subcontractor on claim for breach of contract
Derivative Actions
Esquire Trade & Finance, Inc. v. Diversified Senior Services, Inc.: This case raises derivative action issues, including whether the allegations of the complaint were improperly broader than the demand which had been made, the effect of findings by a special litigation committee, whether plaintiff was owed a “special duty” as a preferred shareholder which entitled him to make direct claims against the corporation, and whether fiduciary duty claims were barred by the two year statute of repose of GS §55-7-48.
Garrett v. Parton: Motions to dismiss a derivative claim made by taxpayer on behalf of the City of Roanoke to recover money invested in a music theater, on the basis of standing.
Lancaster v. Harold K. Jordan and Co.: This is another derivative action case, involving whether the plaintiffs, members of the limited liability company plaintiff, had standing to bring claims on behalf of the LLC. The case raises the usual issues of whether the Defendant owed a “special duty” to the Plaintiffs, and whether Plaintiffs had injury “separate and distinct” from that of the LLC.
Mitchell, Brewer, et al v. Brewer: This dispute involves the breakup of a law firm that was a limited liability company, including whether plaintiffs were entitled to maintain the action as a derivative action, in part because they had withdrawn as members of the limited liability company, and whether they were entitled to pursue an action against the individual members of the LLC.
Revolutionary Concepts, Inc. v. Clements Walker PLLC: This isn’t a derivative action in the true sense of the term, but it does raise the issue of when a shareholder has standing to maintain an action for an injury to the corporation. The more interesting issue in this case is whether the Business Court lacks subject matter jurisdiction over a malpractice claim involving a patent because federal courts have exclusive jurisdiction over patent matters.
Webb v. Royal American Company: Motion to dismiss derivative claim against lender to limited liability company, issues include whether an adequate demand was made or whether plaintiff had established demand futility, and whether claims were barred by exculpatory provisions in loan agreement.Continue Reading The Year Ahead In The North Carolina Business Court
Business Court Rule 15.12, which is titled "Determination Of Discovery Motions Through Oral Argument Without Briefs" states that "with the consent of both parties and as allowed by the Court, the parties may present motions and the Court may resolve disputes regarding discovery matters through the use of an expedited oral argument procedure. Such motions
Can a confidentiality agreement be too broad to be enforced? The North Carolina Business Court said it can be, under some circumstances, in Covenant Equipment Corp. v. Forklift Pro, Inc.
Before you keep reading, know that the case involved South Carolina, not North Carolina, law. North Carolina law on this point looks to be pretty
When a Plaintiff files a Rule 41 dismissal, and then refiles his action, Rule 41(d) of the North Carolina Rules of Civil Procedure requires that he must pay the costs of the first action as a prerequisite to pursuing the new action. "[T}his section establishes a mechanical condition precedent that must be satisfied before that
Wachovia and Wells Fargo have probably reached a settlement with the Plaintiff in the class action lawsuit over the merger between the two banks. The settlement, announced in Wachovia’s Form 8-K filed with the Securities and Exchange Commission yesterday evening, will if finalized require approval by the North Carolina Business Court.
The 8-K filing references
In this case, the Court rejected the unopposed motion of the plaintiff to place the entire contents of a case which had been settled under seal.
The Court’s rationale ran like this:
All lawyers know, from first year torts class, that if you are hit by a baseball at a baseball game, you are unlikely to have any claim against the operator of the baseball stadium. There’s a well developed body of law to that effect.
Today in Allred v. Capital Area Soccer League, Inc., the North Carolina Court of Appeals held that the rules of the game may be different when it’s a soccer game being played. The Allred case is apparently one of only three cases in the country that deals with injuries suffered by spectators from soccer balls kicked into the stands.
The Plaintiff in Allred was attending a women’s professional soccer game at State Capital Soccer Park in Cary, North Carolina. She was sitting in the stands behind one of the goals, and was hit in the head by a ball during warmups, when "many balls were directed towards the nets in a relatively short period of time." Op. at 4.. She suffered "substantial head injuries." Op. at 2.
The trial court granted Defendant’s Motion to Dismiss on Plaintiff’s claim of negligence, but the Court of Appeals reversed. Judge Steelman began the unanimous opinion of the Court by observing that there were no reported cases in North Carolina involving injuries to spectators at soccer games, but that the cases involving baseball games "have been uniformly decided against the spectator, either on the basis that the stadium operator was not negligent or that the spectator assumed the risk of being hit by a baseball." Op. at 5.
The Court’s analysis then turned to two issues: the duty owned by the sports facility operator to the spectator, and whether the Plaintiff had assumed the risk by attending the game.Continue Reading Watch Out For Soccer Balls, They Can Be Dangerous
The Court allowed a stay of discovery while it considered the Defendants’ Motions to Dismiss, stating that "a brief stay of discovery initiatives has the laudable potential of minmizing fees, expenses and the various costs of litigation for the parties in this matter. Such a stay is in the best interests of justice."