• Blog Post

    NICHOLAS SPARKS SUED FOR DEFAMATION

    Renowned author Nicholas Sparks is currently being sued by the former headmaster of the New Bern, North Carolina school founded by Sparks.  Saul Benjamin alleges Sparks defamed him by telling parents of the students that Benjamin suffered from mental health problems.  What is defamation, and how is it proved in court?   (Benjamin also alleges Sparks violated the Americans with Disabilities Act, but analysis of this claim is outside the scope of this article.)   Elements of Defamation   Defamation is generally defined as a published, false statement that harms the reputation of the person(s) referenced in the statement.  To establish a prima facie claim for defamation, a Plaintiff must…

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    UNJUST ENRICHMENT

    Party A and Party B enter into a contract.  Party A will perform a service for pay from Party B.  Party A performs the agreed-upon services, but Party B refuses to pay.  What happens?  As most of us know, Party A can sue Party B for breaching the contract.   But what happens if there is no contract?  A common example is Party A and Party B execute a contract for Party A’s services in exchange for Party B’s payment.  Party A performs the services and Party B provides timely payment in full.  The Parties then execute a second contract for the same services in exchange for the same payment. …

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    WRONGFUL DEATH ACTIONS

    Adam Patrick Browne’s life tragically ended on October 8, 2018.  He was run over by a car driven by his former fiancée, Victoria Keaveny, after she consumed alcohol at a restaurant in Gastonia, North Carolina. Pursuant to a settlement filed under seal in Gaston County Superior Court, that restaurant will pay wrongful death proceeds to Browne’s estate for its role in the tragic incident, namely serving alcohol to Keaveny, who at the time was 19 years old.  Although nothing could ever fully repair the harm of losing a loved one, wrongful death claims offer a potential civil remedy when the death is caused by the wrongful conduct of another party.…

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    EMOJIS IN COURT (*CONFUSED FACE EMOJI*)

    With the continued rise of social media platforms and the increased prevalence of smart phones, courts are presented with the conundrum of interpreting the legal import of emojis, or small digital images that express an idea without the use of alphabetical characters.  The written expressions of a litigant or witness to a case provide valuable evidence; however, in the case of emojis, the meaning of those expressions can become convoluted.  For example, courts have found that emojis can be interpreted to mean: a contract was formed; an individual was communicating a threat; or the communicant possessed guilty knowledge.   The North Carolina Rules of Evidence, similar to all other states,…

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    NORTH CAROLINA RV DEALERSHIP PLANTS ITS FLAG

    With the Fourth of July approaching, skylines and neighborhoods will be dotted with American flags.  This widely known symbol of patriotism and pride can sometimes lead to legal issues.  Take, for example, the 40×80-foot American flag flying above the parking lot of Gander RV (formerly Camping World) in Statesville, North Carolina.  CEO Marcus Lemonis publicly refused to take the flag down, despite increasing fines for its alleged violation of a city ordinance limiting the size of flown flags.   Statesville passed the relevant ordinance in an effort to prevent the growing practice of displaying Confederate flags.  Lemonis, and others, objected that the ordinance applies to flags of any kind, even…

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    UPDATE: LET THEM DRINK LEMONADE

    What’s better than a cold glass of lemonade in the summer sun?  With summer upon us, lemonade stands are in the news once again.  Texas passed a law permitting the sale of lemonade or other nonalcoholic drinks at stands on private property.  How does North Carolina handle lemonade stands?  Previously discussed by Lindley Law, perhaps it is time for a refresher on the legality of this refreshment.   Laws, Permits, and Ordinances, Oh My!   Setting up a lemonade stand may seem like it should be simple; however, the regulations young entrepreneurs must understand and comply with may leave a sour taste.   Some states require a business license, obtained…

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    FREDERICK ALLEN and NAUTILUS PRODUCTIONS, LLC v. ROY A. COOPER, III, et al.: a Battle over Piracy and Sunken Treasure

    The plaintiffs in Frederick L. Allen and Nautilus Productions, LLC v. Roy A. Cooper, III,, et al., a four-year civil lawsuit over the rights to video and photographic footage of the recovery of the wreckage of the Queen Anne’s Revenge (the ship captained by the infamous pirate known as Blackbeard), recently filed a petition for a writ of certiorari seeking the United States Supreme Court to rule on the dispute.   The History of the Queen Anne’s Revenge   In the early eighteenth century, Blackbeard commandeered the slave ship La Concorde, renaming it the Queen Anne’s Revenge and captaining the ship for years near the Outer Banks of North Carolina. …

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    RULE 38: NO SUBSTITUTION FOR GOOD JUDGMENT

    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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    LAMARRE V. MARTINEZ: A (QUIET) DISCUSSION OF ACTIONS TO QUIET TITLE

    The recent North Carolina Court of Appeals decision in LaMarre v. Martinez addresses an action to quiet title between parties to a real property transaction.  Specifically, the court provides guidance for determining the applicable statute of limitations.   Actions to Quiet Title   In North Carolina, an action to quiet title may be brought to determine the validity of adverse claims by multiple persons to an estate or an interest in real property.  The court’s role in such actions is to determine the rightful owner to a particular piece of real property.  Disputes over rightful ownership to real property often arise in the context of interfamilial transfers or transfers that…

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    ENFORCING COVENANTS NOT TO COMPETE AGAINST DOCTORS: PUBLIC POLICY CONSIDERATIONS

    The North Carolina Court of Appeals decision in Aesthetic Facial & Ocular Plastic Surgery Ctr., P.A. v. Zaldivar highlights the unique impact of public policy considerations when determining the enforceability of a non-compete agreement against a medical doctor.  To what extent are such agreements enforceable?  At what point does the concern for the health of the general public outweigh the interest in enforcing the specific terms of an employment contract?   Elements to Determine the Enforceability of Non-Compete Agreements   A non-compete agreement restricts a former employee’s ability to work for a competitor of, or otherwise compete with, the employer.  They are frequently contained in employment contracts.  North Carolina recognizes…