ARTICLES

Plaintiff Found to be Employee

December 21, 2011
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In Archie v. Kirk, (COA 11-436) decided on December 20, 201, the North Carolina Court of Appeals reviewed a decision by the North Carolina Industrial Commission awarding worker’s compensation benefits to a person electrocuted while working on a billboard.  In that case, the record showed that the Plaintiff was sometimes paid a lump sum amount but often paid by the hour.  The evidence also showed that Kirk exercised little supervision over on the Plaintiff.  In affirming the decision of the Industrial Commission and holding that an employer – employee relationship existed between Kirk and the Plaintiff, the Court focused on the fact that Kirk had the right to supervise job performance by the Plaintiff even if that supervision did not occur very often.  The Court…

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Mistake in Deed – Effect on Lien

December 10, 2011
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In a recent case, the North Carolina Court of Appeals discussed the implications of a drafting mistake in a deed.  In S.T. Wooten Corporation v. Front Street Construction, LLC (COA 11-649), a deed mistakenly described a conveyance of a “1-1/2 fee simple interest” in the property rather than the entire undivided fee simple interest that both the buyer and the seller contemplated.  After the sale of the property, a bank made a large loan to the purchaser to fund development of the property and the bank’s deed of trust described the full undivided interest in the property as collateral for the loan.  Subsequently, a subcontractor began work on the project.  After the work began, the buyer and seller discovered the error and recorded a corrected…

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Specific Performance Remedy for Breach of Contract

December 10, 2011
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One can never be too careful in drafting business and property contracts.  Unless remedies for a possible breach of the contract are carefully prepared by a business lawyer, unexpected consequences can occur.  On December 6, 2011, the North Carolina Court of Appeals interpreted a contract to purchase condominiums.  In The Vue – Charlotte, LLC, et al. v. Sherman (COA 11-595), an agreement for the purchase of condominiums contained a liquidated damages provision.  The purchasers argued that because the agreements provided only that the seller may recover liquidated damages in the event of the purchasers’ default but also provided that the purchasers were entitled to any available equitable remedies in the event of the sellers default, there were no remedies available to the seller other than…

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