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Tag Archives: venue

Trusts & Estates – Civil Practice – Venue – Tort/Negligence – Medical Malpractice (access required)

Estate of Davis v. Groff As administrator of the decedent’s estate, plaintiff was entitled to bring suit in the county where he resides. This rule of law, which was set down by our Supreme Court in Trust Co. v. Finch, 232 N.C. 485, 61 S.E.2d 377 (1950), was not and could not be changed by this court’s holding in Roberts v. Adventure Holdings, LLC, 703 S.E.2d 784 (2010), disc. review denied, 365 N.C. 187, 707 S.E.2d 241 (2011). Furthermore, although Roberts held that a guardian ad litem’s residence was insufficient to justify venue, the court also explained that the law regarding administrators and other fiduciaries did not apply to GALs.

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Civil Practice – Venue – Unemancipated Minor – Guardian ad Litem – Tort/Negligence – Medical Malpractice – Appeals (access required)

Jenkins v. Hearn Vascular Surgery, P.A. Even though the infant plaintiff has spent her entire life in a Forsyth County hospital, since she is an unemancipated minor who has not been abandoned, she is considered a resident of her parents’ home in Alamance County. All parties are Alamance County residents; therefore, venue in Forsyth County is improper.

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Bankruptcy – Civil Practice – Venue – Preference Avoidance Action – Non-Insider – Amount of Claim – Commencement of Action (access required)

Callaway v. Energy Mizer Corp. Even though defendant contends that its affirmative defenses will reduce the amount of the preferential payments the trustee is seeking to avoid, there is no allegation that the amount the trustee seeks to avoid was made in bad faith; in fact, defendant admits to receiving checks in the alleged amount. Therefore, the preference amount is determined as of the commencement of the action and not upon consideration of defendant’s affirmative defenses.

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Contract – Forum Selection Clause – Civil Practice – Choice of Law – Venue – Jurisdiction – Credit Card Agreement – Utah Law (access required)

Federated Financial Corp. of America v. Jenkins Even though the credit card agreement at issue contains a forum selection clause that says related litigation is to take place in Utah, since there is no rational nexus between Utah and either the parties or the contract transactions, the forum selection clause is unenforceable. We affirm the trial court’s denial of defendant’s motion to set aside the default judgment against him.

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Domestic Relations – Parent & Child – Support – Downward Modification – Insufficient Showing – Civil Practice – Draft Orders – Venue  (access required)

Orange County ex rel. Clayton v. Hamilton The defendant-father incurred no additional cost in covering his child on his wife’s health insurance policy, which also covered her son from a previous marriage; moreover, the mother was providing coverage for the child on her health insurance policy. The trial court did not err in failing to give the father credit for medical insurance coverage purchased for his child.

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Civil Practice – Venue – Transfer – ‘First-Filed’ – Special Circumstances – Settlement Negotiations – Breakdown – Intellectual Property – Trademark & Copyright Infringement (access required)

Family Dollar Stores, Inc. v. Overseas Direct Import Co. (Lawyers Weekly No. 11-04-0103, 9 pp.) (Richard L. Voorhees, J.) W.D.N.C. Holding: The parties were engaged in settlement discussions, and when those settlement discussions broke down, it was reasonable for plaintiff ...

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Federal or state? Employment lawyers have strong preferences on venue (access required)

An attorney with an employment-discrimination case will most likely take the case to the nearest county courthouse to be heard by a state judge. But just as likely, the defense counsel for the employer will have it removed to federal ...

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Domestic Relations – Parent & Child – Custody – Judges – Recusal – Civil Practice – Venue (access required)

Cordell v. Doyle. (Lawyers Weekly No. 10-16-0638, 21 pp.) (Rick Elmore, J.) Appealed from Buncombe County District Court. (Marvin P. Pope Jr., J.) N.C. App. Unpub. Holding: The parties presented conflicting evidence concerning their communications – and the lack thereof ...

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