The North Carolina Court of Appeals published an opinion in iPayment, Inc. v. Kelly M. Grainger, Individually and as Administrator of the Estate of George Gregory Grainger, et al., North Carolina Court of Appeals Case No. 16-908, on January 2, 2018, reversing the trial court (NC Superior Court, Union County Case No. 15-CVS-2234) and finding in favor of RCD’s client iPayment, Inc. that a motion to compel arbitration of counterclaims should have been granted. The adverse party argued that iPayment had waived the right to arbitration of counterclaims by bringing its unrelated lawsuit. The Court of Appeals disagreed, finding that because iPayment’s claims in the underlying lawsuit were unrelated to the arbitrable counterclaims, and the discovery that had been conducted prior to the motion to compel arbitration was not inconsistent with the parties’ rights under the arbitration clause, the right to arbitration was preserved and arbitration should have been compelled. The case was remanded to the trial court for an order consistent with the opinion. A copy of the Court of Appeals opinion can be viewed here.
Archive for the ‘Legal Updates’ Category
A principle of landlord-tenant law is the power of the tenant to transfer all or part of its lease unless the lease includes provisions that limit that power. The law of assignments and subleases seeks to strike a balance between the tenant’s interest in the alienability of its legal rights under the lease and the landlord’s interest in having a desirable and financially responsible occupant.
In June, the North Carolina Supreme Court issued an opinion ruling in favor of property owners who challenged a state law that allows the North Carolina Department of Transportation to freeze development and improvements on land that may be used as a future highway. The Court held that the law amounted to a “taking” and that property owners must be compensated for the restrictions placed on their land.
Practice in the bankruptcy arena for long enough and you will inevitably run across the following, vexing, situation: debtor files a plan; party in interest objects to a plan provision; Bankruptcy Court sustains the objection and denies confirmation; debtor refuses to go forward with a plan that conforms to the Bankruptcy Court’s ruling, fervently believing that the Bankruptcy Court “got it wrong,” and wants to seek appellate review on the issue. What should a debtor do in this situation?
On May 23, 2016, the United States Court of Appeals for the Fourth Circuit affirmed a judgment obtained by Rayburn Cooper & Durham, P.A. for client RDLG, LLC (view a copy of the Fourth Circuit opinion here). RCD’s client was granted a default judgment on a fraud claim as a sanction against Fred M. Leonard, Jr. by the United States District Court for the Western District of North Carolina. A jury trial was later held on the issue of damages, and RCD was awarded a $500,580.36 judgment for its client by the jury. The Fourth Circuit affirmed both the grant of the default judgment as a sanction and the jury’s damages award. RDLG, LLC was represented by Ross Fulton and Ben Shook.
On May 10, 2016, the North Carolina Court of Appeals affirmed the North Carolina Business Court’s order dismissing all claims against all defendants in Universal Cab Co., Inc. v. City of Charlotte, et al. Defendant Timothy Newman was represented by RCD attorneys Kirk Hardymon, Ross Fulton and Ben Shook. All claims asserted against Mr. Newman were dismissed by the Business Court because the plaintiffs failed to show that they had standing to bring the claims, and therefore the court lacked subject matter jurisdiction to hear the case. The case related to the plaintiffs being denied contracts to provide taxi service at the Charlotte-Douglas Airport. The Business Court found, and the Court of Appeals affirmed, that the plaintiffs failed to show a causal connection between the alleged actions by the defendants and the alleged injury suffered by plaintiffs. A copy of the Court of Appeals opinion can be viewed here.
North Carolina Lawyer’s Weekly featured a North Carolina Business Court order in favor of RCD’s client involving an unusual question of law involving injunctions of foreign proceedings. This cover story for the May 9, 2016, edition is available here. A full copy of the Court’s opinion is available here.
Ross Fulton, a RCD shareholder, serves as lead counsel for TCG Consulting Partners. Fulton focuses his litigation practice on commercial and business disputes.
On March 28, 2016, the United States Court of Appeals for the Sixth Circuit affirmed a judgment obtained by Rayburn Cooper & Durham, P.A. for client RDLG, LLC (view a copy of the Sixth Circuit opinion here). RCD was granted summary judgment on a non-dischargeability claim for client RDLG, LLC in the Bankruptcy Court for the Eastern District of Tennessee, in which the court found that RDLG, LLC’s fraud judgment against Fred M. Leonard, Jr. obtained in the U.S. District Court for the Western District of North Carolina was not dischargeable in appellant’s subsequent Chapter 7 bankruptcy case. The U.S. District Court for the Eastern District of Tennessee had previously affirmed the Bankruptcy Court’s judgment before the appeal to the Sixth Circuit. RDLG, LLC was represented by Ross Fulton as lead counsel.
On March 15, 2016, the North Carolina Court of Appeals affirmed the grant of summary judgment to RCD’s client DWC3, Inc. on a fraudulent transfer claim (view the N.C. Court of Appeals order). RCD had previously obtained an arbitration award of more than $1 million against Diane Kissel, and here obtained a judgment against Kissel and her husband for fraudulently transferring the Kissel’s assets to her husband to avoid DWC3, Inc.’s original arbitration award. Ross Fulton served as lead counsel in the case.
In the Western District of North Carolina, a jury has awarded a $500,580 verdict in favor of RCD client RDLG, LLC, in litigation against a defendant that defrauded plaintiff RDLG, LLC in connection with mountain real estate sales. Ross Fulton served as lead counsel for plaintiff with Ben Shook.