No Damages? No Lawsuit!
By Attorney Edward Jesson
To the chagrin of many North Carolinians who believe they have been wronged, with very few exceptions, you need to have been actually “damaged” successfully bring a lawsuit against another party. While there are several types of damages available to litigants in North Carolina, in most cases, a plaintiff in a lawsuit will be seeking monetary damages.
Monetary damages are, for the most part, meant to be compensatory in nature. The money damages that you may eventually be awarded are meant to compensate you, or “make you whole,” for the loss you have suffered. For example, what if you find a dead mouse in your McDonald’s sandwich? While shocking, unless you ate it and suffered illness or medical expenses, you would not be awarded much in court other than the cost of the sandwich – and who wants to pay a lawyer for that?
Take an example where you believe that someone has made a slanderous or defamatory statement against you. Even if you could prove that the person made the statement and that it was false, that might not be enough to win your lawsuit. You would then need to prove that because of the defendant making that defamatory statement you were in some way monetarily damaged. It is very difficult to get non-economic damages, like emotional distress, in North Carolina.
A plaintiff can be awarded what are known as nominal damages in North Carolina. These are damages that acknowledge that a defendant violated the law (for example, making a defamatory statement) but also acknowledge that no actual loss was suffered by the plaintiff in that situation. An example of nominal damages could be awarding a plaintiff $1.00 when the defendant made a defamatory statement. Yes, a defamatory statement was made, but the plaintiff did not suffer any real harm from that statement being made. And again, who wants to pay a lawyer for that?
There are many other categories of damages that can be claimed in North Carolina, which are very dependent on the specific circumstances of the case. It is important, when discussing a lawsuit with an attorney, to discuss the damages portion up front to ensure that you have a reasonable expectation of what you may stand to gain (or lose) if the lawsuit does end up in front of a jury. It is not always enough that the potential defendant has violated the law if you cannot prove damages. The attorneys at Jesson & Rains can help guide you through what your options are if you feel that you may have a claim against another in a lawsuit.
By Attorney Kelly Jesson
October is National Women’s Small Business Month. Jesson & Rains is proud to represent and work for numerous women-owned businesses.
Charlotte is an exciting place for women entrepreneurs. As we previously reported, in 2018, it was named the “#1 City in America for Female-Owned Business Growth.” Women-owned business growth continued across the country in 2019. Unfortunately, due to the pandemic, Barbara Weltman reports that the number of women-owned businesses fell by 25% from February to April 2020. However, there are plenty of indications that women entrepreneurship is back on the rise.
Participation in women’s networking groups and trade associations is key. Attorneys Kelly Jesson and Danielle Nodar are members of the following groups: National Association of Women Business Owners (NAWBO), Women Lawyers of Charlotte, National Association of Women in Construction (NAWIC), and Women in Networking. Please reach out to Kelly or Danielle if you’d like to drop in on a meeting one day!
By Attorney Kelly Jesson
National Estate Planning Awareness Week was adopted in 2008 to help the public understand what estate planning is and why it is important for all people, not just the uber-rich. An “estate” does not necessarily mean something like the Biltmore Estate. Everyone has an estate, even small or insolvent estates. Estate planning is more than money – estate planning allows you to gain control and peace of mind over difficult and unpredictable situations. We have previously written about the difficulties caused by dying without a will in North Carolina and the pitfalls of the probate process in North Carolina; however, many of the “worst-case” scenarios can be avoided with proper planning. Let us help you plan for emergency scenarios and protect your business and personal assets for the benefit of your loved ones through estate planning.
Unfortunately, COVID-19 has shown us that there are no guarantees, but it has also highlighted what is most important to each of us: family. Estate planning allows you to plan for what happens when you pass away, including naming a trusted person to handle your final affairs, name guardians for minor children, and distribute your assets according to your wishes. In addition to planning for death, our office drafts durable and health care powers of attorneys, where you can name agents to make both financial and medical decisions for you if you are incapacitated and cannot communicate.
There is no reason to wait to do planning, and as we age and the pandemic continues to be a part of our “new normal,” you should get a plan in place before it is ever needed. If you do become incapacitated or ill, it may be more difficult or impossible to get documents in place, as you must have testamentary capacity to create valid estate planning documents.
Some of our clients delay estate planning because they do not have any friends or family members they trust to serve in fiduciary roles. In some circumstances, members of the firm may serve in these roles for the client if the client feels comfortable. It is better for you to take control and name someone yourself than to have the government appoint someone in an emergency or when you pass away.
National Estate Planning Awareness Week is a great time for you take CONTROL! Please call Jesson & Rains if you have questions about getting your estate plan in order or updating an existing estate plan. While You Build, We Protect.
By Associate Attorney Danielle Nodar
When a business is formed and registered with the North Carolina Secretary of State’s Office, the business must comply with certain filings in order to remain in good standing and able to do business in the state. Scammers are aware of these requirements and target North Carolina business owners through the mail. These mailings may look like official government documents, and they quote statutes, cite scary penalties, and prompt the business to pay a fee for a certain “required” form.
One misleading mailing comes from C.F.S., a Michigan company that sends a solicitation for preparation and filing of 2022 annual reports for a fee of $295. The solicitation indicates that the company is not affiliated with the NC Secretary of State and that the annual report may be filed directly by the business owner with the NC Secretary of State’s Office. However, if you are not careful, you may pay a company for a service that you can complete yourself. Businesses can file their annual report themselves and pay a fee of $200 directly to the NC Secretary of State.
Another scheme targeting new business owners is from a company called NC Certificate Service, which mails out a form requesting businesses to order an NC Secretary of State Certificate of Existence for $82. However, there is no state requirement that each registered business entity obtain an annual Certificate of Existence. A Certificate of Existence is only required if a business does business in another state and can be ordered by the business directly from the NC Secretary of State for $15.00 or less.
Finally, another mailing scheme comes from Annual Minutes Filing Services, LLC, also based out of North Carolina, offering to prepare annual minutes to business entities in North Carolina for a fee of $159. The mailing indicates that the company is not affiliated with any government agency in North Carolina but fails to mention that meeting minutes for a company are internal documents that are not required to be filed with the Secretary of State.
There are ways you can protect yourself when receiving a document requesting additional filings or fees for your business. First, always read the fine print. These mailers often come from private companies that have no affiliation with the North Carolina Secretary of State or other government agency, and many are from out of state. Also, some mailings may indicate that you are not obligated to obtain the services to meet North Carolina’s requirements for your business. Do not blindly mail in a check when you receive mail like this. Read it carefully. Contact your attorney or the Secretary of State’s office if you are concerned about a required form your business receives in the mail.
By Attorney Kelly Jesson
North Carolina has a procedure whereby the surviving spouse can claim an “allowance” when their spouse dies, allowing them to obtain, free and clear of any creditor claims or expenses, their deceased spouse’s singularly owned personal property up to $60,000 less any liens or encumbrances. Any jointly owned property will automatically become the surviving spouse’s and is excluded from the $60,000 cap. If a deceased spouse had real estate only in his name, the surviving spouse could not use the spousal allowance to get the real estate and would then have to resort to the probate process. The spousal allowance law applies whether or not the deceased spouse had a will.
The benefits of the spouse allowance statute are clear. Example: you and your deceased wife own a house jointly and own joint bank accounts, but she had a car in only her name worth $30,000 and a stock account in only her name worth $20,000. She also had a $20,000 Macy’s credit card bill in only her name. You can go up to the courthouse with proof of her death and proof of your marriage, fill out a fairly simple form, pay $20, and leave being able to transfer those two items to you directly. There is no need for a costly and time-consuming probate proceeding. Additionally, Macy’s will not be paid.
It is very important to note that a surviving spouse only has one year to file a claim for the allowance. There are no exceptions to this rule. If the deadline had been missed in the above example, the stock would likely have to be sold to pay the Macy’s debt. Also, there is a $5,000 child’s allowance available for children under the age of 18 or certain children over age 18. Finally, government entities may not recognize the state statute, so debts like taxes may still be owed.
If you or a loved one need assistance with the probate process, please give Jesson & Rains a call!
By Attorney Edward Jesson
A Sheriff’s deputy has just showed up at your door and handed you a summons. Or you received a summons via FedEx or Certified Mail. Do you need to hire a lawyer to move forward with things? This is highly dependent on a lot of things, but often most importantly, whether the Defendant that has been sued is an individual or a business entity.
In North Carolina, an individual has the right to represent his or herself. So, if you have been sued in your individual capacity you have the right to represent yourself in court. This is known as proceeding pro se. Sometimes we even recommend our clients proceed pro se. For example, if an individual has been sued in small claims court for a small amount of money, often times the legal fees that might be incurred in defending that small claims action would exceed the damages that were being claimed. Moreover, small claims court is fairly well designed for those who wish to proceed pro se with a lot of the formalities that are present in District and Superior Court being relaxed.
However, if the summons is for District or Superior Court, while an individual is still permitted to represent themselves in those proceedings, generally we would advise against that. In District and Superior Court the North Carolina Rules of Civil Procedure, the North Carolina Rules of Evidence, and applicable Local Rules, and various other rules and regulations apply. The majority of the time we find that individuals proceeding pro se end up getting tripped up by these rules—often with serious long lasting financial consequences.
However, things are much different if the Defendant being sued is a business entity such as a corporation or a limited liability company. In North Carolina a business entity cannot represent itself nor can a member or owner of the business represent the business in court unless that individual is an attorney licensed to practice law in North Carolina (or has been admitted to practice in North Carolina on another basis).
If a business owner (that is not permitted to practice law in North Carolina) files a response on behalf of the business that they own, they are engaging in the unlicensed practice of law which is a Class 1 Misdemeanor in North Carolina. Any documents filed by an unlicensed attorney could be stricken by the Court which could result in a judgment being entered against the Defendant, even though the Defendant may have thought that they properly responded. Repeated violations of the law could result in financial sanctions being awarded by the Court or injunctions being sought by the local district attorney.
Generally speaking, if you receive a summons, regardless of what it is, it is in your best interest to at least consult with an attorney to see what your options are. Depending on the situation, it may be advisable to move forward and represent yourself. However, in a lot of circumstances the litigation can be a mine field for those who are not used to appearing in court on a regular basis.
If you receive a summons, or have any other questions about the litigation process, the attorneys at Jesson & Rains are ready to help.
Subscribe to our newsletter.
Kelly Rains Jesson