Rule Statements

Question 1

What is a judgment lien and it’s requirements?

Answer 1

A judgment lien is a lien on the defendant’s real property in the county where the lien is docketed.

A judgment lien lasts for 10 years after the date of the judgment, not including any time in which the party who was owed the judgment, was restrained from proceeding.

Judgment liens may be claimed by anyone who received a judgment affecting title to real property or directing payment of money.

A lien arises when a judgment is docketed. It attaches to real property later acquired in the county where it was docketed.

The lien automatically attaches when title vests in the debtor.

Question 2

Renunciation

Answer 2

Generally, a beneficiary under a will is presumed to have accepted a testamentary legacy or devise that is beneficial to him.

The presumption that a beneficiary has accepted a devise can be rebutted when the devisee actively renounces the devise in clear and unequivocal terms.

The renouncing party is treated as if he predeceased the decedent, and the property is distributed to the next eligible taker. Thus, when there is a renunciation, the devise never takes effect and title never vests in the devisee. A renunciation must be filed within nine months of the testator’s death.

Question 3

Conversion

Answer 3

A defendant is liable for conversion if he intentionally deprives the plaintiff of possession of personal property. The plaintiff’s damages are the property’s full value at the time of the conversion. In North Carolina, a plaintiff must prove that he owns the property to recover for conversion.

Question 4

Alienation of Affections

Answer 4

In North Carolina and a minority of jurisdictions, a spouse can recover for alienation of affections. The spouse must prove that: (i) the marriage was a loving one, (ii) the spouses’ love was destroyed, and (iii) the defendant’s conduct, usually required to be malicious, caused the loss of affection. A plaintiff need not prove that extramarital sex occurred. Typically such cases are brought subsequent to a legal separation or divorce.

Question 5

Criminal Conversation

Answer 5

North Carolina recognizes a cause of action for criminal conversation. The plaintiff spouse must show that the other spouse engaged in extramarital sex with a third party. The plaintiff must also show that the spouses were married and not legally separated at the time of the affair. Each instance of sexual intercourse can be brought as a separate claim against the third party.

Question 6

Stopping a car in NC

Answer 6

Under the Fourth Amendment, stopping a car constitutes a seizure of the driver and any passengers.

As such, officers must have an articulable, reasonable suspicion of a violation of the law in order to stop an automobile.

Whether reasonable suspicion exists is based on the totality of the circumstances. Reasonable suspicion can be based on a flyer, a police bulletin, or an informant’s tip, but only if the tip is accompanied by sufficient indicia of reliability.

A call to 911 reporting erratic driving may give the police the reasonable suspicion needed to make a traffic stop if the report is reliable.

Question 7

Exceptions to the warrant requirement

Answer 7

Generally, a police officer must have a warrant to commence a search.

Under the Fourth Amendment, evidence seized during an unlawful search cannot constitute proof against the victim of the search.

However, there are exceptions to the warrant requirement. Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons if the police possess a reasonable belief that the suspect is dangerous and may gain immediate control of weapons, and the search of the passenger compartment is limited to areas where a weapon could be hidden.

Question 8

Plain view exception to the warrant requirement

Answer 8

Items in public view may be seized without a warrant because one cannot have a reasonable expectation of privacy in things that are exposed to the public.

Question 9

Cocaine possession

Answer 9

It is illegal to possess a controlled substance. Cocaine is a Schedule II controlled substance in North Carolina.

Possession may be actual or constructive. It requires the defendant to have power over the substance and the intent to control its disposition or use.

An inference of knowledge and possession arises when a controlled substance is discovered on property the defendant controls.

Question 10

Search Warrant Requirements

Answer 10

Police generally must have a warrant to commence a search.

To be valid, a search warrant must be issued by a neutral and detached magistrate based on probable cause, must be supported by oath or affidavit, and must describe the places to be searched and the items to be seized.

Facts supporting probable cause may come from a police officer’s personal observations, information from a reliable, known informant or from an unknown informant that can be independently verified, or evidence seized during stops based on reasonable suspicion, in plain view, or obtained during consensual searches.

Question 11

Admissible evidence

Answer 11

Evidence must be relevant to be admissible, and all relevant evidence is admissible unless excluded by a specific rule or law.

Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.

Question 12

Prior bad acts

Answer 12

Evidence of a prior bad act is not admissible to prove a person’s character to show that the person acted in accordance with that character on a particular occasion. Thus, in criminal cases, the prosecution is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and, therefore, is likely to have committed the crime in question.

However, evidence of prior bad acts are admissible for other purposes, such as proving motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake, or lack of accident.

When the criminal defendant requests, the prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial. However, the court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, or undue delay.

Question 13

Implied warranty of habitability

Answer 13

There is an implied warranty of habitability in most residential leases.

The landlord must maintain the property such that it is reasonably suited for residential use. The landlord’s failure to comply with applicable housing code requirements constitutes a breach of this warranty, particularly with regard to violations that substantially threaten the tenant’s health and safety.

Question 14

Residential Rental Agreements Act

Answer 14

Under North Carolina’s Residential Rental Agreements Act (RRAA), a residential landlord must provide fit premises, including the maintenance required to keep the unit in good and safe working order and the prompt repair of all electrical, plumbing, sanitary, and other facilities.

This warranty cannot be waived, so a tenant’s acceptance of property “as is” does not excuse the landlord from responsibility for these repairs.

Question 15

Remedies for L-T issue

Answer 15

If the premises are not habitable, the tenant may choose to: (i) remedy the defect and offset the cost against the rent, (ii) refuse to pay rent, or (iii) defend against eviction.

In an action for rent abatement, the tenant may recover the difference between rent actually paid and the fair market value of the premises in their unfit condition.

Special and consequential damages for harm caused.

Punitive damages are available if the breach constitutes or is accompanied by tortious conduct.

North Carolina authorizes an action against a landlord who engages in unfair or deceptive practices. To prove this claim, the tenant must show that the landlord knew the premises needed repair, failed to correct the defects, and continued to demand rent payments.

If a tenant fails to pay rent, then a landlord may use summary ejectment proceedings to regain possession of the leased premises and recover damages. However, a tenant may raise the affirmative defense of retaliatory eviction if the tenant made a good-faith request for repairs to the landlord about conditions in the premises that the landlord is obligated to repair under the RRAA.

Question 16

Accomplice liability

Answer 16

An accomplice is a person who, with intent that the crime be committed, aids or abets a principal prior to or during the commission of the crime.

An accomplice who is neither physically nor constructively present during the commission of the crime, but who possesses the requisite intent, is an accessory before the fact.

An accomplice is responsible for the crime to the same extent as the principal.

Question 17

Withdrawal

Answer 17

In North Carolina, an accomplice continues to be criminally liable for the commission of a felony until he (i) “renounces the common purpose,” (ii) makes it obvious that he has done so, and (iii) makes it known that he has no intention of participating further.

Question 18

Conspiracy

Answer 18

Conspiracy is an agreement between two or more persons to accomplish an unlawful purpose, with the intent to accomplish that purpose.

North Carolina follows the common-law approach and does not require an overt act. The crime of conspiracy is complete once the parties reach an agreement, and therefore an attempted withdrawal prior to the commission of the overt act will not preclude a conspiracy conviction.

Under the Pinkerton Rule, a conspirator can be convicted of both the offense of conspiracy and all substantive crimes committed by any other co-conspirators acting in furtherance of the conspiracy.

Question 19

Larceny

Answer 19

A person commits larceny through the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive that person of the property (i.e., with the intent to steal).

In North Carolina, larceny of goods valued at more than $1,000 is a felony. To be larceny, the property must have been taken without the owner’s consent and the defendant’s original taking must have been wrongful.

Question 20

False Pretenses

Answer 20

In North Carolina, the crime of false pretenses requires (i) a false representation of fact, or regarding a future fulfillment or event, (ii) made with the intent to cheat or defraud, (iii) which does cheat or defraud, and (iv) by which the defendant obtains, or attempts to obtain, value.

Unlike the common law, North Carolina does not require title to pass.

The factual representation must be false, but it can include the present intent to make a false promise about the future.

The victim must rely on the representation and that reliance must cause the victim to pass title or possession to the defendant.

The defendant’s possession must be wrongful at the outset.

Question 21

Embezzlement

Answer 21

Embezzlement is the fraudulent conversion of the property of another by a person who is in lawful possession of the property.

In North Carolina, embezzlement is a felony and requires that the defendant (i) was over 16 years old, (ii) acted as an agent or fiduciary for the principal, (iii) received money or property of the principal in the course of employment or fiduciary capacity, and (iv) fraudulently or knowingly and willfully misapplied or converted it to his own use.

The defendant must have intended to defraud the owner of the property and must have been in lawful possession of the property when this intent occurred.

Question 22

When can a criminal defendant move for insufficiency of the evidence.

Answer 22

In North Carolina, a criminal defendant may move to dismiss charges for insufficiency of evidence (i) upon the close of the state’s evidence, (ii) upon the close of all the evidence, (iii) after a guilty verdict, but before entry of judgment, or (iv) after discharge of the jury without a verdict.

Question 23

Robbery

Answer 23

Common-law robbery is larceny by force or intimidation, when the taking of the property is from the person or presence of the victim.

Larceny is the trespassory taking and carrying away of the personal property of another, with the intent to permanently deprive that person of the property.

“Trespassory” means without the owner’s consent. Robbery requires that the taking be from the person or his presence. “Presence” requires that the property be within the victim’s reach or control.

Question 24

Kidnapping

Answer 24

In North Carolina, a defendant is guilty of kidnapping if he unlawfully confines, restrains, or removes someone from one place to another, by force or fraud, without consent.

The common-law movement element is not required.

The kidnapping must occur: (i) for ransom, as a hostage, or using the victim as a shield; (ii) to facilitate the commission of a felony or flight therefrom; (iii) to do serious bodily injury or to terrorize the victim; or (iv) to hold the victim in involuntary or sexual servitude.

Question 25

12(b)(6) Motion to dismiss

Answer 25

A 12(b)(6) motion to dismiss is properly granted when, as a matter of law, the allegations in the complaint, treated as true, either are insufficient to allege each element of the claim upon which relief may be granted, or allege a claim not recognized by the state.

A claim that is beyond the applicable statute of limitations is a claim that may not be recognized by the state.

Question 26

NC SOL

Answer 26

Negligence: 3 years

Question 27

Voluntary Dismissal under Rule 41

Answer 27

A voluntary dismissal under Rule 41(a) allows plaintiff to voluntarily dismiss a claim that was filed within the statute of limitations.

The plaintiff has at least one year to commence a new action based on the same claim. The plaintiff gets the benefit of the original statute of limitations or the one-year extension, whichever is the longer period.

However, if the plaintiff’s claim fails to state a claim and is not cured by amendment, the one-year extension does not apply, and the plaintiff may file a new action only within the original statute of limitations period.

Question 28

Negligence elements

Answer 28

The elements of a negligence claim are duty, breach, causation, and damages.

Question 29

IIED elements

Answer 29

The elements of a claim for IIED are an act by defendant that amounts to extreme and outrageous conduct, with intent by the defendant to cause severe emotional distress in the plaintiff, plus causation and damages.

Question 30

When may a party amend a pleading?

Answer 30

Rule 15 states a pleading may be amended after a responsive pleading has been filed only with the permission of the adverse party OR with leave of court to amend. Leave of court should be freely given when justice so requires.

Question 31

Relation back of an amendment

Answer 31

Amendments relate back to the original date the pleading was filed if the original pleading gives notice of the conduct, transaction, or occurrence set forth in the amendment. In North Carolina, relation back may only be used to add a new claim against an existing party and not to add or change a party.

Question 32

Insufficient process

Answer 32

The summons is the formal process that requires a defendant to respond. Insufficient process is an error or defect in the summons itself.

A court generally will not dismiss a case because of a technical violation in the summons.

The court, in its discretion, may allow any process to be amended, unless it is clear that the defendant would suffer material prejudice as a result of the insufficiency.

Question 33

Insufficient service of process

Proper method of service of process

Answer 33

The defense of insufficient service of process asserts a concern regarding the method of service, or whether the person who served the process was properly authorized by North Carolina law to do so.

Within North Carolina, the proper person to serve a summons is the sheriff of the county in which service is to be made or some other person authorized by law to serve a summons

Personal service on an individual in North Carolina can be achieved by delivering a copy of the summons and complaint to the defendant or leaving the summons and complaint at the defendant’s home with a person of suitable age and discretion that resides there.

Question 34

Venue in NC

Answer 34

The plaintiff makes the initial decision on venue and may select any proper venue for the lawsuit. The general venue rule in North Carolina is that an action must be brought in the county in which the plaintiff or defendant resides at the commencement of the suit.

The court may change the venue for several reasons, including when the county in which suit was brought is not proper.

Question 35

When is dismissal proper for an absent party?

Answer 35

Dismissal may be appropriate when an absent party whose presence is needed for complete relief (a “necessary” party, one “united in interest”) cannot be joined in the suit.

When, as here, an interest is transferred, the rules allow for the action to be continued in the name of the original party, or, on the motion of any party, the court may allow the person to whom the transfer was made to be joined with the original party.

Further, under the rules, if a claim cannot be adjudicated without prejudicing an absent party, then the absent party is necessary and the court must require that it be joined as a plaintiff or defendant. Under the rules, no action will be dismissed for lack of a real party in interest until a reasonable time has been allowed, after objection, for joinder or substitution of the real party in interest

Question 36

Summary judgment

Answer 36

A defendant may move at any time for summary judgment on all or part of a claim. A motion for summary judgment should be granted if the evidence (pleadings, depositions, answers to interrogatories, admissions, etc.) on file shows that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law. If summary judgment is not rendered on the entire action, then the court should, to the extent practicable, determine what material facts are not genuinely at issue.

Question 37

Real party in interest

Answer 37

Every action must be prosecuted in the name of the real party in interest. A real party in interest is a party who is benefited or injured by the judgment in the case and who by substantive law has the legal right to enforce the claim in question.

Question 38

What do you need to bring a constitutional claim

Answer 38

To bring a constitutional claim, the plaintiff bears the burden of establishing standing and timeliness.

To establish standing, a plaintiff must prove (i) a concrete and particularized injury in fact, (ii) causation (the injury must be caused by the defendant’s violation of a constitutional or other federal right), and (iii) redressability (the relief requested must prevent or redress the injury).

Question 39

Right to vote framework

Answer 39

Voting is a fundamental right. As such, all state action regulating the right to vote is subject to strict scrutiny.

Under strict scrutiny, a law interfering with a fundamental right will generally be upheld only if it is necessary to achieve a compelling governmental interest.

The fundamental rights guaranteed by equal protection are often protected by substantive due process principles as well. Thus, impingement of the right to vote, to travel, or to marry may trigger an inquiry under either the Due Process Clause or the Equal Protection Clause of the Federal or North Carolina Constitutions.

Question 40

Gerrymandering

Answer 40

The fundamental right to vote applies to all federal, state, and local elections, including primary elections.

When a state draws election districts for the purpose of scattering a racial or ethnic minority among several districts in order to prevent the minority from exercising its voting strength, the state’s action is a violation of the Equal Protection Clause.

Under the Equal Protection Clause, election districts for public office may not be drawn using race as the predominant factor in determining the boundary lines, unless the district plan can survive strict scrutiny. This restriction applies even when the district is drawn to favor historically disenfranchised groups.

The state can use traditional factors—such as compactness, contiguity, or honoring political subdivisions—as the bases for the district, and it may only consider race if it does not predominate over other considerations. A district’s bizarre shape can be used as evidence that race was a predominating factor, but such a shape is not necessary for a finding of racial gerrymandering.

Question 41

What K universe are you in?

Answer 41

The common law governs service contracts, while the UCC governs contracts for the sale of goods.

Question 42

K modification

Answer 42

Under the common law, a modification of an existing contract must be supported by consideration. A promise to perform a preexisting legal duty does not qualify as consideration, because the promisor is already bound to perform.

Question 43

The preexisting duty rule

Answer 43

. Under the preexisting duty rule, a promise to perform a preexisting legal duty does not qualify as consideration because the promisor is already bound to perform.

However, there is an exception to the preexisting legal duty when a third party offers a promise contingent upon performance of a contractual obligation by a party. Under the exception, the third party’s promise is sufficient consideration.

Question 44

Binding K

Answer 44

A binding contract is created through the process of mutual assent and consideration, and when no valid defenses to contract exist.

Question 45

Mutual Assent

Answer 45

Mutual assent occurs upon acceptance of a valid offer to contract.

An offer is an objective manifestation of a willingness by the offeror to enter into an agreement that creates the power of acceptance in the offeree.

An acceptance is an objective manifestation by the offeree to be bound by the terms of the offer.

In contract law, a party’s intent is determined by the objective theory of contracts, and not by a party’s subjective intent or belief.

Question 46

Consideration

Answer 46

In addition to offer and acceptance, most courts
In North Carolina, any benefit to the promisor or any loss or legal detriment to the promisee, including the promisee doing something he is not bound to do, suffices as consideration for a promise.

Question 47

SOF

Answer 47

Contracts that fall within the Statute of Frauds are unenforceable unless they are evidenced by a writing

NC does require a writing for a K that cannot be performed within 1 year.

Question 48

Indefinite terms

Answer 48

For a contract to exist, the terms of the contract must be certain and definite, or the contract fails for indefiniteness.

Under common law, all essential terms must be covered in the agreement. In most ongoing contracts, if a duration term is not specified in the agreement, courts will imply that the contract will last for a reasonable period of time.

However, as long as the parties intend to create a contract, the UCC “fills the gap” when a contract is silent as to a term, such as the time or place for delivery, or even the price for the goods. The UCC allows a recovery if there is a reasonably certain basis for giving a remedy

Question 49

At will employment

Answer 49

If an offer of employment does not state a duration, there is a rebuttable presumption that the employment is “at will.” In an employment-at-will relationship, either party can terminate the relationship at any time without the termination being considered a breach of the contract.

However, if an employment contract provides for permanent employment, most courts hold that, in the absence of a proven contrary intention, the employment is at will, because the duration term in the contract is considered too vague.

Question 50

Promissory estoppel

Answer 50

However, in North Carolina, promissory estoppel is not recognized as a substitute for consideration or as an affirmative claim that may be brought by a plaintiff to enforce a promise; it is applied only done so in a defensive situation, when there has been an intended abandonment of an existing right by the promise.

Question 51

Express warranty

Answer 51

Under the UCC, any promise, affirmation, description, or sample that is part of the basis of the bargain is an express warranty, unless it is merely the seller’s opinion or a commendation of the value of the goods.

The use of a sample or model will create a warranty that the goods the buyer will receive will be like the proffered sample or model

Question 52

Acceptance of goods

Answer 52

Under the UCC, the buyer accepts goods by (i) expressly stating acceptance, (ii) using the goods, or (iii) failing to reject the goods.

However, a buyer can revoke acceptance if the defect in the goods was hidden. The revocation must occur within a reasonable time after the nonconformity or defect was or should have been discovered, and notice must be given to the seller.

Question 53

Damages under the UCC

Answer 53

Upon a rightful rejection, the buyer is entitled to a return of any payments made on the goods.

A buyer may recover damages, which are measured as the market price minus the contract price.

A buyer is also entitled to cover and to recover the difference between the replacement price and the contract price.

The UCC also permits recovery for incidental and consequential damages that result from the seller’s breach. Incidental damages are incidental to the seller’s failure to perform.

Question 54

Authority for an agent to bind a principal

Answer 54

A principal is subject to liability on a contract that the agent enters into on the principal’s behalf if the agent has the power to bind the principal to the contract.

]An agent has the power to bind the principal to a contract when (i) the agent has actual authority, (ii) the agent has apparent authority, or (iii) the principal is estopped from denying the agent’s authority.

Question 55

Actual authority

Answer 55

Actual authority is the authority that the agent reasonably thinks he possesses, which is conferred either intentionally or by want of ordinary care by the principal.

Actual authority can be express or implied. Express actual authority is created by (i) oral or written words, (ii) clear, direct, and definite language, or (iii) specific detailed terms and instructions.

Implied actual authority allows an agent to take whatever actions are properly necessary to achieve the principal’s objectives, based on the agent’s reasonable understanding of the manifestations and objectives of the principal.

Question 56

Apparent authority

Answer 56

Apparent authority arises from the reasonable reliance of a third party on that party’s perception of the level of authority granted to the agent by the principal.

In North Carolina, apparent authority requires the third party to establish that he acted in justifiable reliance on the principal’s manifestations.

By appointing an agent to a specific position within a company, the principal makes a manifestation that the agent has the customary level of authority possessed by a person in the agent’s position.

Question 57

Output K

Answer 57

An output contract is a contract under which a seller agrees to sell all of the product he manufactures to the buyer

Under the UCC, any quantities under such a contract may not be unreasonably disproportionate to any stated estimates

Question 58

UCC SOF

Answer 58

Contracts that fall within the Statute of Frauds are unenforceable unless they are evidenced by a writing.

The writing must be signed by the party to be charged and must contain the essential elements of the deal.

However, the writing need not be formal and need not be delivered to the party trying to enforce the contract.

Under the UCC, a contract for the sale of goods for a price of $500 or more must be in writing.

Question 59

Silence as acceptance

Answer 59

Generally, silence does not operate as acceptance, unless (i) the offeree has reason to believe that the offer could be accepted by silence, was silent, and intended to accept the offer by silence, or (ii) because of previous dealings or a pattern of behavior, it is reasonable to believe that the offeree must notify the offeror if the offeree intends not to accept.

Question 60

Competency to K

Answer 60

Parties to a contract must be competent. Incompetency arises because of infancy. In North Carolina, an infant is any person who has not reached the age of 18.

Question 61

Remedies

Answer 61

Remedies are meant to compensate the non-breaching party for actual economic losses.

Expectation damages are intended to put the injured party in the same position as if the contract had been performed. They are the damages that arise naturally and obviously from the breach, and are normally measured by the market value of the promised performance less the consideration promised by the non-breaching party. The formula for expectation damages is: loss in value + other loss – cost avoided – loss avoided.

When damages are an inadequate remedy, the non-breaching party may pursue the equitable remedy of specific performance.

In determining whether the legal remedy is adequate, the court will consider a variety of factors, including the difficulty of proving damages with reasonable certainty, the hardship to the defendant, balance of the equities, practicality of enforcement, and mutuality of the agreement.

However, even if the remedy of damages is inadequate, specific performance will not be granted when the court cannot supervise enforcement. Thus, courts rarely grant specific enforcement of contracts for personal services, although they may restrain the breaching party from working for another when the contract contains a non-compete clause.

Question 62

Shareholder agreements restricting stock transfer

Answer 62

Shareholder agreements restricting stock transfer are subject to contract law, and are enforceable provided that they serve a proper purpose and the basic formalities of a valid, enforceable contract are present

A shareholder is generally free to sell his stock to anyone at any time or price, but closely held corporations often impose private restrictions on the sale or transferability of stock to maintain control over the corporation’s business, tax benefits, and profits by limiting the number of shareholders involved in the corporation.

A corporation may impose any type of restriction on transferability, but that restriction must not be unconscionable under the circumstances.

For the restriction to be effective, the stock certificate must include a full and conspicuous statement of the restriction on transfer, or a statement that the corporation will provide information about the restriction upon request.

Without a conspicuous notice on the stock certificate, the restriction is unenforceable unless the party receiving the stock received actual written notice of the restriction.

Question 63

Book value v. Market value

Answer 63

Book value refers to stock valuation based on the books and financial information of the company, as compared to the market value, which is based on what the shares would fetch in the open market.

Question 64

Representation of a client

Answer 64

Generally, a lawyer must not represent a client if the representation of that client will be directly adverse to another client or the representation of one or more clients may be materially limited by the lawyer’s responsibilities to another client,
unless (i) the lawyer reasonably believes that he will be able to provide competent and diligent representation to each affected client, (ii) the representation is not prohibited by law, (iii) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding, and (iv) each affected client gives informed consent, confirmed in writing. Representing opposing parties in the same lawsuit or transaction is prohibited.

Question 65

Informed consent

Answer 65

Informed consent” means the agreement of the client to the proposed course of conduct after the lawyer has communicated adequate information and explanation appropriate to the circumstances

Question 66

To bring an action for child custody

Answer 66

To bring action for custody of a child, the individuals seeking custody must have standing to sue.

In North Carolina, it is possible for someone other than the natural parents of a child to have standing to sue for custody. North Carolina allows parents, grandparents, and any other relative or third party with a parent-child relationship to that child to bring a suit for custody.

Question 67

Peterson Presumption

Answer 67

After establishing standing to sue custody, a third party must also overcome the Peterson presumption in North Carolina before the court will consider the best interests of the child.

In North Carolina, the Peterson presumption holds that a parent is fit and that the child would be better off living with a natural parent rather than a third party.

The third party bears the burden of overcoming this presumption and may do so by showing the parent is unfit, has neglected the child, or has acted in a manner contrary to their constitutionally protected status as a parent.

A parent has a fundamental right to raise her child. However, if the presumption is overcome by a showing of unfitness, neglect, or by showing the parent has acted in a manner inconsistent with their parental rights, then the court will make a decision with regards to which custody arrangement will be in the best interest of the child.

This requires the court to make specific findings of fact. If the court determines it is in the best interest of the child, the third party will prevail in the custody action.

Question 68

Necessaries Doctrine

Answer 68

Under the necessaries doctrine, a wife may be held liable for the husband’s necessary medical expenses regardless of the existence of an express surety contract between the wife and the hospital.

To prevail, the hospital must prove (i) medical services were provided to the husband, (ii) the medical services were necessary for the health and well-being of the husband, (iii) the wife was married to the husband at the time the services were provided, and (iv) payment for the necessary services has not been made.

A spouse is not liable for the medical expenses of the other spouse if the parties are separated at the time the medical services were provided and the provider had actual notice of the separation.

Question 69

Specific performance for a land sales K

Answer 69

Generally, due to the unique nature of land, a party to a contract for the sale of land is entitled to specific performance after the other party breaches the contract, as normal money damages would be an inadequate remedy.

Question 70

SOF for land sales K

Answer 70

A contract for the sale of land must comply with the Statute of Frauds; it must be in writing, signed by the party to be charged, and contain all of the essential terms of the contract. These essential terms include the parties, the terms of payment, and an adequate description of the property.

The writing does not need to be a formal contract but must contain the essential terms.

Question 71

Parol evidence for a land sales K

Answer 71

The general rule is that if the description on its face identifies a particular tract of land as distinguished from other lands, it is adequate and parol evidence can be admitted and utilized to fit the description to the particular land.

Latent ambiguity: it is insufficient in itself to identify the property but refers to something extrinsic by which identification might possibly be made.

On the other hand, it may also be said generally that if a description in a contract shows a patent ambiguity as written, parol evidence is inadmissible to fit the description to the land and the description will be held inadequate.

A patent ambiguity involves a description which leaves the land in question in a state of absolute uncertainty and refers to nothing extrinsic by which the land might be identified with certainty.

Question 72

Part performance for a land sales K

Answer 72

Part performance awards specific performance when one party has paid for, possessed, or substantially improved the land in question.

However, North Carolina does not recognize the doctrine of part performance.

Specific performance may also be awarded when the party asserting the Statute of Frauds defense has already accepted the benefits under the contract.

Question 73

Right to partition

Answer 73

A tenant in common or a joint tenant generally has the right to unilaterally partition the property.

Property can be partitioned either voluntarily or involuntarily by court action.

In a partition action, the court divides the concurrently owned property into distinct portions, or if division of the property is not practicable or fair, the court may sell the property at a public auction and distribute the proceeds among the co-tenants in accordance with their ownership interests.

An agreement by co-tenants not to seek partition is enforceable. However, the agreement must be clear and the time limitation must be reasonable.

Question 74

When does A9 apply?

Answer 74

Article 9 of the Uniform Commercial Code (UCC) applies to security interests in personal property.

Question 75

Attachment

Answer 75

Under Article 9, attachment of a security interest must occur for the security interest to be valid as between the debtor and creditor. For the security interest to attach, three conditions must coexist: (i) value has been given by the secured party; (ii) the debtor has rights in the collateral; and (iii) the debtor has an authenticated written security agreement that describes the collateral, or the secured party has possession or control of the collateral pursuant to a security agreement.

Question 76

Perfection

Answer 76

Perfection of a security interest is generally necessary for the secured party to have rights in the collateral that are superior to any rights claimed by third parties.

A security interest is perfected upon attachment of that interest and compliance with one of the methods of perfection.

Goods have 3 methods of perfection: filing a financing statement with the Secretary of State for the state where the debtor is located, possession by the secured party, or automatic perfection.

Although the security interest typically attaches and is then perfected, if the necessary steps for perfection are taken before attachment, then the secured interest is perfected upon attachment.

Question 77

PMSI

Answer 77

A purchase money security interest (PMSI) in consumer goods is automatically perfected. A PMSI in goods is created in one of two ways: (1) a secured party gives value (e.g., makes a loan) to the debtor and the debtor incurs an obligation to enable the debtor to acquire rights in or use of the goods, and the value given was so used; or (2) a secured party sells goods to the debtor and the debtor incurs an obligation to pay the secured party all or part of the purchase price (i.e., a sale of goods on credit).

Question 78

Security Interest in a motor vehicle

Answer 78

In order to perfect a security interest in a vehicle, the security interest must be noted on the certificate of title; filing a financing statement is not sufficient to perfect a security interest in a vehicle.

Question 79

Accessions

Answer 79

Accessions are goods that are physically united with other goods in such a manner that the identity of the original goods is not lost. A security interest that is created in collateral that becomes an accession is not lost due to the collateral becoming an accession.

Instead, a security interest in an accession is usually subject to the general priority rules of Article 9.

However, a security interest in an accession is subordinate to a security interest in the whole collateral that is perfected under a certificate-of-title statute.

Question 80

Perfected v. Perfected

Answer 80

When there are two or more perfected security interests in the same collateral, the general rule is that the first security interest to be filed or perfected has priority. However, preference is generally given to a purchase-money security interest (PMSI) over a non-PMSI security interest.

Question 81

PMSI in consumer goods

Answer 81

A PMSI in goods prevails over all other security interests in the collateral, even if they were previously perfected, if the PMSI is perfected before or within 20 days after the debtor receives possession of the collateral.

Question 82

Identifiable proceeds

Answer 82

A security interest in collateral automatically attaches to identifiable proceeds. Proceeds include insurance payable by reason of the loss of the collateral.

Question 83

Unperfected v. Unperfected Security Interest

Answer 83

If neither party has a perfected security interest, then the “first in time, first in right” rule applies. The critical time for determining priority is the time of attachment.

Question 84

Prima facie case for negligence in NC

Answer 84

A prima facie case for negligence consists of duty, breach, causation, and damages.

North Carolina defines the standard of care as what a reasonably prudent person would do under the circumstances.

Question 85

Driver’s duty of care

Answer 85

Drivers owe a duty to drive reasonably safely to protect those who could be foreseeably harmed by a collision

Question 86

Negligence Per Se

Answer 86

For a prima facie case for negligence per se, the plaintiff must show that (i) the statute imposes a duty to protect others, (ii) the defendant breached that duty, (iii) the plaintiff is within the class of people intended to be protected by the statute, (iv) the harm was the type of harm that the statute seeks to protect against, and (v) the harm was proximately caused by the defendant’s violation of the statute.

Question 87

Contributory Negligence

Answer 87

Contributory negligence occurs when a plaintiff fails to exercise reasonable care for his own safety and thereby contributes to her own injury.

In North Carolina, contributory negligence is a complete bar to recovery.

Question 88

Owner-occupant Doctrine

Answer 88

Under the owner-occupant doctrine, the negligence of the driver may be imputed to the owner-passenger because he has the legal right to control the automobile.

Question 89

Good Samaritan Statute

Answer 89

In North Carolina, any person who gives aid without compensation when it is reasonably apparent that quick actions must be taken and any delay would worsen the victim’s condition, is not liable for injuries to the victim unless the injury is caused by the defendant’s gross negligence, or wanton or intentional conduct.

Question 90

Vicarious liability

Answer 90

Under the doctrine of vicarious liability, an employer can be held liable for the tortious actions of an employee. Vicarious liability arises when (i) the employer has a right to control the employee’s activities, and (ii) the activity is within the scope of the employee’s employment.

Employers who hire independent contractors are generally not vicariously liable for the torts of the independent contractors, since an independent contractor is not subject to a right of control by the employer.

Independent contractors often have specialized skills or knowledge, and they tend to work for many employers, while employees more often work for a single employer.

There are also some duties that, even if assigned to an independent contractor, can still result in vicarious liability to an employer, including inherently dangerous activities, activities that are a risk to the public at large, and the duty of a public landowner to keep premises in a reasonably safe condition.

Question 91

Landowners standard of care

Answer 91

landowners must exercise reasonable care toward all lawful visitors, whether invitees (visitors on public property) or licensees (people invited onto private property).

Question 92

Res ipsa loquitur

Answer 92

Under the doctrine of res ipsa loquitur, where there is no evidence of the cause of the injury, the trier of fact may infer the existence of the defendant’s negligent conduct in the absence of direct evidence of such negligence.

For res ipsa loquitur to apply, P must prove that the accident (i) was of a kind that ordinarily does not occur in the absence of negligence (ii) was caused by an agent or instrumentality within the exclusive control of the defendant; and (ii) not due to any action on the part of P.

North Carolina does not apply the exclusivity requirement literally when (i) a plaintiff introduces evidence of his own or third parties’ lack of negligence, or (ii) multiple defendants were responsible.

Question 93

Superseding cause

Answer 93

A superseding cause is any intervening cause that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm, thereby preventing the original defendant from being liable to the plaintiff.

Mere negligent intervening acts are generally foreseeable

Question 94

Sealed container

Answer 94

In North Carolina, a seller is not liable when the product was acquired and sold by the seller in a sealed container or under circumstances that did not afford the seller a reasonable opportunity to inspect the product in way that would have revealed the defect.

Question 95

Manufacturing defect liability

Answer 95

There are two ways to be held liable for a manufacturing defect: negligence and breach of warranty.

The commercial manufacturer, distributor, retailer, or seller of a product owes a duty of reasonable care to any foreseeable plaintiff, including bystanders.

A retailer can be liable for a defective product if the product contains (i) a manufacturing defect, (ii) a design defect, or (iii) inadequate instructions or warnings at the time of sale/distribution, and if the defective product causes an injury when used in a reasonably foreseeable way.

A manufacturer or seller is not liable in a products-liability action if (i) the use was contrary to the product’s instructions, and the user knew or should have known of the instructions, (ii) the user knew of the defect or dangerous condition but unreasonably and voluntarily exposed himself to the danger, or (iii) the user failed to exercise reasonable care, which was the proximate cause of the injury.

Question 96

Defamation

Answer 96

A plaintiff may bring an action for defamation if the defendant’s defamatory language concerning the plaintiff (i) is published (or spoken) to a third party who understands its defamatory nature, and (ii) damages the plaintiff’s reputation.

Slander is defamation by spoken word or gesture, while libel is defamation that is written, printed, or otherwise recorded in permanent form.

In North Carolina, a person can be liable for both libel and slander by speaking defamatory words to a reporter when the person knows or should know that the words will end up in print.

To prove a claim for slander, a plaintiff must plead and prove one of the following: (i) special damages, i.e. economic loss, or (ii) slander per se.

To receive special damages, a plaintiff must show that a third party heard the defendant’s defamatory comments and acted adversely to him or her. This often involves an economic loss, such as loss of business, but could result in other losses, as well.

Certain statements constitute slander per se (damages need not be proven). In North Carolina, these statements include allegations that the plaintiff (i) committed a crime of moral turpitude or one that would subject the accused to imprisonment; (ii) engaged in conduct reflecting poorly on the plaintiff’s profession; or (iii) has a loathsome disease.