The recent North Carolina Court of Appeals decision in Weishaupt-Smith v. Town of Banner Elk represents North Carolina’s first appellate ruling interpreting Rule 38(b) of the North Carolina Rules of Appellate Procedure, which provides the second of three (3) categories in which substitution of a party to a dispute on appeal is permitted. Although this rule was adopted in 1975, courts remained silent on its interpretation until Weishaupt-Smith. Rule 38 Substitution of Parties Rule 38 provides three specific categories under which a party to a dispute on appeal or while appeal is pending may be substituted. The first, Rule 38(a), permits substitution when a party dies but the…
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Holographic Wills and Statutory Requirements to Modify Them
The law distinguishes between typewritten wills, typically prepared by an attorney, and those which are handwritten by oneself. Handwritten wills, known as holographic wills, must meet the statutory requirements set forth by N.C Gen. Stat. S 31-3.4 (2015). These requirements include: (1) the will must be written entirely by hand by the testator; (2) must be subscribed by the testator; and (3) must be found among the testator’s valuable papers or effects. In some cases after a will is drafted, whether by hand or typewritten, the testator my wish to make modifications. An addition or supplement that explains, modifies, or revokes a will, or part of a will, is a…
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Six Things Every Lawyer Should Know When Drafting a Non-Compete Agreement in North Carolina
When advising clients and drafting employment contracts with non-compete clauses, there are several things every lawyer should keep in mind. The general rule is courts will enforce non-compete clauses to the extent they are reasonably necessary to protect legitimate business interests.[1] In North Carolina, they must be (1) in writing and (2) signed by the parties.[2] The following seven tips will strengthen a typical non-compete agreement and increase its likelihood of enforceability in a court of law: 1. Know Your State’s Disclosure Requirements Some, but not all, states require employers to disclose the existence of a non-compete clause…
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Prescriptive Easements and Claim of Right
If your neighbor’s driveway runs over your property, is it a permissible to dig a large ditch over the drive if the ditch impedes your neighbor’s access to their own land? Easements for neighboring properties are often necessary to access one’s own land, particularly in rural parts of the country. However, the law regarding one’s right to an easement can be complicated and difficult to navigate, especially if neighbors are at odds with one another. Several years ago, Jack Myers decided he wanted to use his property as a commercial paintball field, but Stanley and Ruby Clodfelter, did not…
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Business Basics: The Duty of Good Faith and Fair Dealing and the Parol Evidence Rule
The duty of good faith and fair dealing is essentially the Golden Rule of Contract law and Business Law: treat others how you want to be treated, and you have a better chance of avoiding litigation. When parties run afoul of this duty, courts notice and hold them accountable. In Blondell v. Ahmed, the North Carolina Court of Appeals remanded a case where it believed the sellers of a home may have breached their duty of good faith and fair dealing under a Listing Agreement with their real estate agent.[1] In March of 2013, the sellers of a house,…
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Death by Alcohol – Who is [More] at Fault?
Last week the North Carolina Court of Appeals reversed the lower court’s decision allowing a case involving alcohol poisoning against a hotel and its staff to go forward.[1] Lisa Davis and her husband Thomas were celebrating their wedding anniversary at the Crown Plaza Resort in October of 2012. They had dinner at Mulligans, the hotel’s restaurant, and spent four and a half hours there. Between the two of them, they consumed twenty-four drinks – drinks the restaurant’s employees served them. Not surprisingly, Lisa was extremely intoxicated. She was unable to walk and unable to stand up after falling, so the hotel employees put her in…
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Master of Your Domain?: The Nuance of Eminent Domain and Charlotte’s Light Rail
Since before the establishment of the United States, governments have taken the land of private citizens. The issue was so fundamental to the founders of this country they wrote it into the Fifth Amendment of the Constitution which states, in part, “nor shall private property be taken for public use, without just compensation.” The issue of what constitutes a taking, however, is still a matter of dispute in courts across the country, including the North Carolina Court of Appeals. On Tuesday, the Court published an opinion regarding whether a property owner was entitled to just compensation for the loss of visibility to a business due to the construction of a…
