Mess with a bull, you get the horns

The Court of Appeals recently affirmed Rule 11 sanctions against an attorney that, according to the Court, filed a motion to recuse a district court judge that was factually inaccurate.  In the case of O'Neal v. Oneal, an action for divorce, an attorney for the plaintiff failed to appear at a pre-trial conference. 

Although the plaintiff was represented by counsel at the pre-trial hearing, Rule 7.1 of the Family Court Domestic Rules for Judicial District 3A states, in part, that "[a]ttendance at pre-trial conferences is mandatory for all attorneys of record and all parties." 

The district court judge, upon noticing one of the attorneys' absence from the hearing, admonished the lawyer for her failure to appear.  The lawyer countered with a motion to recuse the judge, which was not met kindly by the district court. 

The district court, sighting the above local rule, noted that the attorney had failed to appear despite having actual knowledge that her attendance was required.  The reason given for missing the hearing? The attorney was meeting a contractor to have work done at her house.  In her motion to recuse, however, the attorney argued that her absence was acceptable because the plaintiff was represented by a licensed attorney.  No reference to the local rule was made. 

Not surprisingly, the attorney's "reason" for missing the hearing didn't sit well with either court, especially when the attorney was aware that her attendance was required.  As a result, the imposition of sanctions were affirmed on the basis that the motion to recuse contained an inaccurate recitation of facts.  

Today's picture is a personal favorite:

Opening at Supreme Court of NC

Thew N&O has reported that Justice Patricia Timmons-Goodson will be stepping down.  I would anticipate that Gov. Perdue will move quickly to appoint a replacement.  Speculation on my part, but don't be surprised to see either Judge Ervin, who recently lost his race against Justice Newby, or Judge Robert C. Hunter, who lost to now Justice Jackson four years ago, get the nod.

If either are appointed, this would leave an opening at the Court of Appeals - allowing Judge Thigpen to fill the seat (he recently lost his race against soon-to-be Judge Dillon).  

This also allowed me to post a photo of Bobbie Thigpen, a guy who had a great year closing for the White Sox back in my youth, seen hear wearing a Winston Salem Dash uniform:

The Court of Appeals is Coming for Your Guns!!!11!

Not really.  But in light of the recent election, and the fear that Obama will take your guns, I thought this Opinion filed yesterday was timely: LINK

The plaintiff sued Cabarrus County Sheriff, Brad Riley, after Sheriff Riley denied the plaintiff's concealed carry permit.  The plaintiff had, according to the Court, lied on an application by indicating that he had not been convicted of a crime, when in fact he had (assault on a woman in 2001).  Based on this misrepresentation and the violation of criminal law, the Court held that Sheriff Riley appropriately denied his concealed carry permit.

The plaintiff also raised the 2nd Amendment, arguing that he had a fundamental right to carry a concealed weapon.  The Court of Appeals disagreed, holding that:  "While courts have consistently held that the Second Amendment protects an individual’s right to possess a weapon, courts have also found that the Second Amendment does not extend to an individual’s right to conceal a weapon."

Love Done Gone

The Court of Appeals recently affirmed the dismissal of a State Highway Patrol Officer, Monty S. Poarch.  The decision can be found here: LINK 

Mr. Poarch had an on-again, off-again extramarital affair over the course of fifteen (15) years with Donna Lynne Kirby.  Ms. Kirby, evidently, ended the affair.  Mr. Poarch, however, did not take the news well and pulled Ms. Kirby over, which lead to a complaint filed by Ms. Kirby. 

That, in turn, resulted in allegations, later confirmed by Mr. Poarch, that he and Ms. Kirby had been engaged in some adult activity while he was on duty... And in the patrol car. 

Mr. Poarch argued that other officers had committed worse acts but were not dismissed.  While it boggles the mind to think of worse acts, the Court of Appeals said it would not "shackle the Patrol to the worse personnel decisions that they have made." 

Mr. Poarch would have been wise to listen to the words of Billy Currington, and just let love done gone:

Like snowflakes when the weather warms up
Like leaves on the trees when the autumn comes
Like the dogwood blossoms in a late spring rain
All the disappearin' bubbles in a glass of champagne
Like a red kite lost in a blue sky wind
I don't know where the good times went
It ain't nothin' we ever said or ever did wrong
It's just love done gone

New Opinions

Supreme Court published 4 opinions last week, they are here: http://appellate.nccourts.org/opinions/?c=sc&year=2012

Nothing of note for this blog purposes.  Those that work for HOAs or the like might be interested in this case: http://appellate.nccourts.org/opinions/?c=1&pdf=MjAxMi8yNjhBMTEtMS5wZGY=

If a Flute Maker Marries You, is it Valid?

Well I have no idea.  And honestly, I've never thought about it.  But Hawk Littlejohn, who, according to Wiki, is perhaps the greatest Native-American flute maker, married a couple in in a two-day ceremony back in October of 1989.  He was also a medicine man, and according to Wiki again, served as an adjunct professor at UNC's medical school.  Given the recent academic issues at UNC, this Deac will refrain from making a comment about that particular position.

In any event, the couple that married, sadly, divorced.  And the divorce was subject to a recent appeal found here. 

The actual holding of the case isn't that interesting: appeal of an alimony award while an attorneys' fees order is pending is interlocutory and subject to dismissal.

At the trial court level, however, Judge Leslie found that she did not need to reach the issue of whether Hawk Littlejohn's ceremony was valid, because when the couple renewed their vows in a "traditional" church, the defendant-husband was estopped from denying the validity of Hawk Littlejohn's ceremony.

So what's the take away?  I have no idea, but it gave me a chance to post a picture of a Hawk, and a Littlejohn:

Judgement Day for John Conner's Lien

New opinion that construction lawyers should take a quick read of can be found here: John Conner Construction Inc. v. Grandfather Holding Company, Inc.

Generally, a contractor has lien rights when the contractor has entered into an agreement with the "owner" of property and has provided labor and/or materials.  N.C.G.S. s 44A-8.  The "owner" of the property is one who holds an "interest" in the property.

Twenty-five years ago an issue came up as to whether a certain party was actually an "owner" in Carolina Builders Corp. v. Howard-Veasey Homes, Inc., 72 N.C. App. 224, 324 S.E.2d 626 (1985).  In that case, the "owner" of the property was only under contract to purchase the property, but had not yet closed.  Prior to closing, the "owner" contracted with a contractor to provide labor and materials to the property.  The Court concluded that the contractor had lien rights because the "owner" had an equitable interest in the property.

Yesterday, in John Conner Construction, and it is unclear what, if any responsibility the Terminator played in this, the Court of Appeals dismissed Conner's action to enforce a lien.  Setting aside the obvious reason, that a robot from the future was sent to sabotage the case, Mr. Conner had contracted with a non-owner of property, and that non-owner wasn't under contract to purchase the property.  Thus, the Court of Appeals held that Mr. Conner had no lien rights.  The fact that the non-owner later became the actual owner did not alter this result.

Bottom line: if a contractor enters into a agreement with a party that isn't yet under contract to purchase property, the contractor will have no lien rights.

Judge Hunter (from Greensboro) did provide a dissent, however, so the Supreme Court will have its chance to weigh in on this.