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Tag Archives: Union County

Discovery waives mandatory arbitration clause, court holds (access required)

A nursing home waived its right to compel arbitration after it used interrogatories to seek information from the plaintiff in a negligence suit, the Court of Appeals has ruled in an unpublished decision. "If you send discovery that is not necessarily going to be available in arbitration, you cannot then turn around and seek to compel arbitration," said the plaintiff's lawyer, Sam McGee (pictured). "The defense tried to distinguish [this case] from other cases by arguing that ‘this was only one little set of interrogatories.' But there is no magic number of interrogatories."

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Arbitration – Waiver – Motion to Compel – Interlocutory Appeal – Substantial Right (access required)

Rodrigues v. Southern Assisted Living, Inc. By making use of judicial discovery procedures, the defendants waived their right to compel arbitration; therefore, the trial court did not err when it denied their motion to stay proceedings and compel arbitration.

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Contract – General Contractor – Claim of Lien – Order of Attachment – Control Analysis – G.S. § 87-10 (access required)

Signature Development, LLC v. Sandler Commercial at Union, LLC. Since the plaintiff did not exercise the requisite control over a development project to be considered the general contractor, the trial court erred in dismissing the plaintiff's complaint under Rule 12(b)(6) based on the plaintiff's failure to obtain a general contractor's license. The trial court did not err by dismissing the plaintiff's claim of lien where the claim of lien was based on a percentage of profits, not upon debts owing for labor done or professional design or surveying services or material furnished, as required under G.S. § 44-8. The trial court erred by dissolving the plaintiff's order of attachment because it did not make adequate findings under G.S. § 1-440.3 to justify doing so.

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Civil Practice – Requests for Admission – Service – Summary Judgment – Sanctions (access required)

Faulkerson v Allen. The defendant properly served his answer, request for admissions and counterclaims upon the plaintiffs by sending them in the mail to plaintiffs' last known address. Given the plaintiffs' failure to respond to the requests for admission and counterclaims, the trial court did not err by granting summary judgment in favor of the defendant. Since none of the contentions that the plaintiffs advanced on appeal were well grounded in fact or warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, imposing sanctions against the plaintiffs is appropriate.

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Domestic Relations – Child-Support Guidelines – Retirement Benefits – Medicare & Social Security Benefits – First Impression (access required)

Caskey v. Caskey. Contributions made by an employer to an employee's retirement accounts, including any 401(k) accounts, and insurance premiums may not be included as income for the purposes of the employee's child-support obligations unless a trial court, after making the relevant findings, determines that the employer's contributions immediately support the employee in a way that is akin to income. Social Security and Medicare taxes that employers are required to make on behalf of an employee may not be considered income as applied to an employee's child-support obligations.

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