Cannon Law Obtains $1,400,000 Judgment

At a recent hearing in Asheville on motions for summary judgment Bill Cannon successfully defended a motion for summary judgment by two surety bond companies and obtained summary judgment in favor of the Town of Black Mountain and Buncombe County in the amount of $1,403,240.00.  The bond companies had guaranteed completion of roads, sewer, storm drainage and sewer improvements for a subdivision in the event that the developer failed to do so.  After the developer defaulted on its obligation, the bond companies refused to pay.  They claimed that the statute of limitations had run on the bonds before suit was filed and that the bonds were terminated when the subdivision was annexed into the Town.

Bill Cannon’s practice includes representation of governmental entities in a variety of legal disputes.  Prior to moving to North Carolina Bill had served as a City Attorney and County Attorney in Georgia.

Cannon Law Successful in Supreme Court

Bill Cannon and Mike McConnell successfully defended a favorable decision entered by the North Carolina Court of Appeals after the North Carolina Supreme Court decided to review the decision of the Court of Appeals.  In Glens of Ironduff Property Owners Association, Inc. v. Daly,  a subdivision property owners association sued the developer for damage to a subdivision road.  The trial court ruled in favor of our client, the developer, and the association appealed the decision to the North Carolina Court of Appeals.  The Court of Appeals upheld the decision of the trial court and ruled in favor of the developer.

The North Carolina Supreme Court granted the association’s Petition for Discretionary Review and ordered briefs to be submitted as well as counsel to appear before the Supreme Court for oral argument.  The North Carolina Advocates for Justice filed a friend of the court brief supporting the association’s brief.  Bill Cannon and Mike McConnell filed a brief asking the Court to affirm the decision of the Court of Appeals in our client’s favor.

Bill Cannon argued on behalf of the developer before the Supreme Court on January 6, 2014.  The Supreme Court issued an order on January 24, 2014 finding that the discretionary review had been improvidently allowed.  This resulted in the win in the  Court of Appeals being sustained as  the final decision in the case.

 

 

 

ELECTION 2013 – EASTERN BAND OF CHEROKEE INDIANS

     The Eastern Band of Cherokee Indians held its primary elections for Tribal Council yesterday, September 5, 2013.  Here are the unofficial winners in each community, as reported by the Cherokee One Feather newspaper and the Tribe’s Board of Elections.  Each community has two council members and they serve two-year terms.  Several incumbents lost their seats, but representation in the majority of communities stays the same. 

Big Cove Tribal Council

Teresa McCoy and Perry Shell

Yellowhill Tribal Council

David Wolfe and Alan “B” Ensley

Birdtown Tribal Council

Gene “Tunney” Crowe Jr. and Albert Rose

Painttown Tribal Council

Tommye Saunooke and Terri Henry

Wolftown Tribal Council

Bo Crowe and Dennis Edward (Bill) Taylor

Cherokee Co./Snowbird Tribal Council

Adam Wachacha and Brandon Jones     

SUMMARY

     In this election several incumbents lost their seats, and at least one former Council member (Teresa McCoy from the Big Cove Community ) is returning after being away from Council for several years.  The Tribe’s economy is strong and the during their tenure the new Council can expect to be presented with some big-money issues, including construction of a new casino in Cherokee County,  construction of new Justice Center and construction of a new hospital (the latter two in Cherokee proper).  I would not expect, however, any substantial change in Tribal Council decision-making. 

NEXT TRIBAL ELECTION - 2015

     The new Tribal Council will be seated in October when the Board of Elections certifies the election results.  The next election cycle will be in 2015 and will include elections for Tribal Council and for Principal Chief and Vice-Chief.  The big question in 2015 will be whether incumbent Principal Chief Michell Hicks and incumbent Vice-Chief Larry Blythe will run for re-election.  Each has served multiple terms but there are no term limits in Tribal law.     

 

Supreme Court Weakens Pollution Law

In Applewood Properties, LLC v. New South Properties, LLC, Case # 161A12 decided June 13, 2013, the North Carolina Supreme Court reviewed a suit arising out of the flooding of a golf course with mud, water and other debris.  The Plaintiff filed suit under the North Carolina Sedimentation Pollution Control Act of 1973 (N.C.G.S. § 113A-50 et seq.).  Construction and soil disturbing activity had taken place on property adjoining a golf course pursuant to an erosion and sedimentation control plan approved by the Gaston County Natural Resources Department.  (GNRD)  On more than one occasion, the GNRD had issued a “Notice of Non-Compliance” for failure to comply with the approved plan.

As a result of damage to the golf course, a suit was filed against the contractor and land owner asserting claims of negligence, nuisance, trespass, violations of the SPCA, negligence per se and intentional misconduct and gross misconduct.  The trial court granted the Defendants’ motion for summary judgment on the SPCA claim and denied motions as to the other claims.  The Plaintiffs appealed the trial court’s order granting the motion for summary judgment on the SPCA claim.

The Court of Appeals affirmed the trial court’s order dismissing the SPCA claim, concluding that the SPCA did not apply because “a land-disturbing activity requires an element of deposition into a body of water and there was no evidence in this case that sediment had been deposited into a body of water.”

The case was appealed to the North Carolina Supreme Court and the Court concluded that the Plaintiffs lacked standing to bring an SPCA claim.  Emphasizing that N.C.G.S. § 113A-66(a) refers to any person injured by a violation of any ordinance, rule or order adopted by local government or approved plan is authorized to bring suit under the SPCA, the Court noted that there had been no citation for any violation.

 

The Court concluded that the legislature could have used the word “non-compliance” or other broad terms to describe the conduct necessary to trigger a cause of action but chose not to use such terms.  The Court characterized the term “violation” as narrow and held that the legislature did not intend to make a Defendant subject to civil liability pursuant to the SPCA if the Defendants’ actions had not risen to the level of violation.

The opinion of the Supreme Court is a blow to efforts to control erosion and sedimentation in North Carolina.  Even though the Court found that there had been repeated warnings about violations, neither Defendant was issued a “notice of violation” before the suit was brought.

The decision makes it much more difficult for persons injured by careless or indifferent developers to recover damages under the SPCA.  Unless the county agency can be persuaded to issue a notice of violation no cause of action arises.

The lawyers at Cannon Law, P.C. are experienced in pursuing claims on behalf of parties who have suffered property damage or personal injury resulting from development on adjoining property.  Although the Supreme Court has made it more difficult to recover under the SPCA, there are other causes of action that may be asserted.  If you or your property has been injured as a result of construction, contact Cannon Law, P.C. as soon as possible in order to protect your rights under North Carolina law.

A Place for Civil Discussion

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My practice is primarily focused on civil litigation, with additional practice areas where I try to counsel clients and prepare documents to minimize litigation.  In legal jargon, I am a civil lawyer and my goal is to also be a “civil” (courteous & professional) lawyer in my dealing with opposing counsel, judges, court officials, parties and clients.  I am starting this blog to have a forum where civil discussion can take place regarding issues that arise from the practice of law and developments springing from court decisions and legislation. I think an appropriate topic to kick this blog off is the importance of civility in the legal arena.

Some trial lawyers and lawyers in general have developed a reputation for outrageous conduct.  A quick review of deposition excerpts on YouTube® reveals some unprofessional language and actions that reflect poorly on the profession and the justice system as well.

My experience with lawyers has been mostly quite different.  I have gone to battle against very accomplished lawyers where the facts and the law were hotly disputed—and yet, we developed respect for each other and often, long-lasting friendship.  I remember one pretrial conference many years ago in Albany, Georgia where Del Percilla, Don Rentz and myself were discussing with Judge Loring Gray how long we thought the trial would take.  Judge Gray, half-joking, said that he would be present when the jury was selected and return when it was time to give the jury his instructions at the end of the case. He said that he was confident we could try the case without him.

We all chuckled, but were proud that the judge had confidence in our desire to have a fair trial and to represent our clients in a way that would not require his intervention.  We were prepared for a hard fight, but a clean fight.  In more than 35 years of practice, I am pleased to say that 99% of my experiences with opposing counsel have been just as pleasant.

Bill Cannon

The jury system is periodically attacked by special interests that wish to avoid being held accountable for their actions by citizens who have taken an oath to find and speak the truth.  Comments such as “those folks are not my peers” or “my case is too complex for a jury” reveal a dangerous desire for a justice system that places little value on common sense and an unwillingness to accept the investment that all citizens, regardless of their education, socio-economic status or race have in a fair justice system.

Most juries, even those with very diverse membership, are able to engage in frank and open discussion and reach a unanimous verdict on highly disputed issues.  I have served on two criminal juries and personally observed the commitment of jurors to honest deliberation and a fair outcome.

The key to these unanimous verdicts and to the success of the judicial system is respect and a willingness to examine issues thoroughly, putting aside prejudice and emotion.

Civil discussion and behavior is more likely than not to achieve a sensible solution or result.  That is my hope for this blog.  I will offer my thoughts, primarily on issues arising out of the courts and law practice, and encourage your feedback.   I also welcome any suggestions for potential blog topics.  I only ask that you participate in a civil manner.

Innocent Spouse Relief from the IRS

If you are married, separated or divorced, you probably filed your federal income tax returns as “married, filing jointly”.  This makes sense because filing jointly gives you certain tax benefits. However, it also makes you and your spouse jointly liable for all the taxes, interest and penalties  that might be owed on the joint return, even if you later get divorced.

Do I Owe the Money?

Each spouse, independently of the other, can be made to pay the entire debt to the IRS.  Also, one spouse may be held responsible for all the taxes even if all the income was earned by the other spouse.  It doesn’t matter what your separation agreement or divorce judgment says.   The IRS didn’t sign the agreement and it wasn’t a party to the judgment.   It just wants the money.

But I Didn’t Know . . . .

The terrible truth is that the innocent spouse often doesn’t know about the problem until they get a letter from the IRS demanding money.  The letter prompts the innocent spouse to start asking questions - and the truth is revealed.   Unfortunately, at this point, they are trying to climb out of a hole that their husband or wife put them in.

What Can I Do?

If you qualify as an “innocent spouse”, you can ask for relief from the IRS for the taxes, interest and penalties that you might otherwise have to pay because of the joint tax return. Generally speaking, you can qualify if you filed a joint return but did not know – and had no reason to know – that the your husband or wife was intentionally under reporting income or intentionally violating federal tax laws.  Three separate types of relief are available: innocent spouse relief; separation of liability from the offending spouse; and equitable relief. One of these might fit your situation.

You are Not Alone

The situation you might be facing is more common than you think.  The IRS gets over 50,000 requests a year for innocent spouse relief.  Due to the volume of requests the IRS has dedicated one office (the Cincinnati Service Center) to focus solely on these claims.  Don’t be shy about asking for relief.  It won’t hurt to ask, and it might help tremendously.

You can learn more about innocent spouse relief directly from the IRS by clicking here.

Supreme Court Overturns NC Medicaid Lien Statute

Supreme CourtIn  Aldona Wos, Secretary of North Carolina Department of Health and Human Services v. E.M.A., a minor, by and through her guardian ad litem, Johnson, et al. (decided March 20, 2013) the United States Supreme Court held that a North Carolina statute creating an irrebuttable presumption that the State is entitled to 1/3 of injury settlements received by Medicaid recipients was pre-empted by the federal Medicaid statute.  In that case, a child was born with multiple birth injuries that require her to receive 12-18 hours of skilled nursing care daily.  North Carolina Medicaid pays part of the cost of the ongoing care.

State Used Arbitrary 1/3 Allocation

When a settlement was reached in a medical malpractice case, the State claimed that it was entitled to 1/3 of the settlement without any determination of what portion of the settlement was allocated to payment of medical expenses under a North Carolina statute.  The Supreme Court held that this law ran afoul of a provision in the Medicaid law that allowed a state to recover a portion of a recovery that represents payments for medical care, but prohibits attachments or encumbrances on the rest of the recovery.  It is anticipated that the North Carolina General Assembly will revise the statute to provide a means for determining the amount to be allocated to medical expenses and subject to lien by the state.

Ongoing War Against Injury Victims

This is a small victory in an ongoing war by the North Carolina legislature against the rights of injured people.  Under the guise of tort reform, the General Assembly has been making it more difficult for injured citizens to recover compensation for their injuries and easier for insurance companies and corporations to avoid liability for their wrongful acts and the acts of their representatives and insureds.  These laws have included provisions placing an arbitrary limit on the amount that a person permanently injured with constant pain and even paralysis can recover, no matter how young the victim is, and a law creating a confusing and costly procedure for introducing medical bills into evidence at trial.