Posted By William Plyler on March 2, 2010
As someone supportive of President Obama’s efforts to reform health care, I find it difficult to understand why the president hasn’t jumped on health savings accounts (HSAs) as a way to reduce health care costs. Indiana Governor Mitch Daniels’ piece entitled “Hoosiers and Health Savings Accounts” on the op-ed page of the 3-1-10 Wall Street Journal, should be a turning point in the health care reform debate.
Daniels reports that five years ago, a HSA option was added to the conventional plans available to his state’s employees. In the first year, 4% of employees signed up for it. This year, over 70% of state workers chose it. In Indiana’s HSA, the state deposits $2,750 per year into an account (more…)
Category: Health Care Reform |
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Tags: cost control, Health Care Reform, health insurance, health savings accounts, Mitch Daniels, President Obama
Posted By William Plyler on February 23, 2010
(Robert McMillan, senior partner in McMillan Smith & Plyler, has practiced law in Raleigh, N.C. for over 50 years. He graciously has allowed me to publish some of his favorite law stories, one of which appears below. Other stories written by Robert McMillan will be posted periodically.)
Upon graduation from Wake Forest Law School in the 1930s, Judge Joe Branch went back to his home in Halifax County and joined the practice of Mr. Mac Johnson. Mr. Johnson was the father of Virginia’s Meredith friend, Kitty Johnson.
Judge Branch, as all who knew him were aware, was a personable and able attorney. He developed a strong following in a remarkably short time. In due course, the clientele coming into the office started asking for Mr. Branch more often than for Mr. Johnson, (more…)
Category: Robert McMillan |
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Tags: Judge Joe Branch, Mac Johnson, Robert McMillan, senior attorney
Posted By William Plyler on February 16, 2010
The North Carolina Court of Appeals held today in Cury v. Mitchell, (COA09-238, filed February 16, 2010) that a woman may sue her ex-boyfriend for a $25,000 contribution she made toward the purchase of a house titled in his name. In reversing the trial court’s dismissal of the lawsuit, the appellate court held that the woman alleged two valid equitable claims – constructive trust and resulting trust.
A constructive trust is a duty or relationship imposed by courts of equity to prevent the unjust enrichment of the holder of title to property which the holder acquired through fraud or some other circumstance making it inequitable for him to retain it against the claim of the beneficiary of the constructive trust. The Court of Appeals held that proof of fraud is not required to support a claim of constructive trust where the title holder owed some duty to the one equitably entitled. The ex-boyfriend had a fiduciary duty to the woman at the time he purchased the house because she was pregnant with his child and they were in a “trusting” relationship.
A resulting trust arises “when a person becomes invested with the title to real property under circumstances which in equity obligate him to hold the title and to exercise his ownership for the benefit of another.”
It is reassuring to see that North Carolina appellate courts are not going to countenance a sleazy ex-boyfriend realizing a $25,000 windfall at the expense of a formerly love-struck girlfriend. Even so, better practice dictates that girlfriends (and boyfriends) require that their names be included on the title before contributing $25,000 toward the purchase of a house.
Category: Court Opinions |
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Tags: constructive trust, fiduciary duty, resulting trust, sleazy ex-boyfriend, unjust enrichment
Posted By William Plyler on February 9, 2010
The fact that an idea is promoted by Republicans should not relegate the idea to the dung heap. George Will’s column in yesterday’s Washington Post, How To Get The Country To Solvency On Entitlements, extols the virtues of Republican Congressman Paul Ryan’s outline for budget reform entitled Roadmap For America’s Future. The Roadmap includes a proposal to expand the availability of health savings accounts, an idea which will decrease the cost of care. Democrats should adopt this idea and enact legislation effectuating it.
When Obama campaigned for the Democratic nomination, he understood that the exorbitant cost of care (more…)
Category: Health Care Reform |
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Tags: george will, Health Care Reform, health savings accounts, Paul Ryan
Posted By William Plyler on February 2, 2010
The North Carolina Court of Appeals, in Beckles-Palomares v. Logan et al, (No. COA09-567, filed Feb. 2, 2010) held that the City of Winston-Salem may be liable for failing to keep its streets free of unnecessary obstructions. A seven year old boy on his bicycle was killed when a drunk driver struck him on a Winston-Salem street in 2006.
The boy was headed south on a side street before turning right onto a primary street. The drunk driver was heading east (more…)
Category: Court Opinions, DWI/Dram Shop, Negligence |
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Tags: drunk driver, governmental immunity, N.C.G.S. 160A-296, obstructed vision, public duty doctrine, untrimmed hedge, Winston-Salem Code of Ordinances 74-19
Posted By William Plyler on January 26, 2010
Robert McMillan, senior partner in McMillan Smith & Plyler, has practiced law in Raleigh, N.C. for over 50 years. He graciously has allowed me to publish some of his favorite law stories, one of which appears below. Other stories written by Robert McMillan will be posted periodically.
This story is a classic and is true. I have quit telling it in person — but posterity deserves to hear it.
Once William Joslin associated me to assist in the defense of a murder case. As a preface it should be noted that William was one of the foremost and most capable attorneys in Raleigh during the post WWII era.
The case was a brutal murder in which the defendant had beat and stomped his wife to death. We were fortunate in that we were allowed by the solicitor to plead guilty to second-degree murder. (Judge Chester Morris did not like this and told the solicitor that he disapproved.) Judge Morris sentenced the defendant to 28 years in prison. (At that time 30 years was the maximum for second degree murder.)
The ink had hardly dried on the commitment before the defendant had filed post conviction writs against William and myself for being incompetent lawyers. A hearing was scheduled before Judge Walter Bone.
I was on the witness stand in response to questions by the defendant’s lawyer. In commenting I remarked that the defendant was certainly entitled to say what he pleased about our handling of the case but that I would do the same again — and that I thought we were very fortunate in being allowed to plead to second degree murder rather than face trial for first degree murder.
I commented that if he felt I was incompetent that was his privilege. Whereupon, the defendant stood up in court and said, “It’s true, Mr. McMillan, I said you were incompetent, but you’re not as incompetent as Mr. Joslin.”
Category: Off-beat, Robert McMillan |
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Tags: attorney stories, ineffective assistance of counsel, post conviction writ, Robert McMillan, William Joslin
Posted By William Plyler on January 19, 2010
An oral brokerage contract between a real estate agent and his client, a developer who bought a tract of land, is enforceable in North Carolina even though a regulation adopted by the North Carolina Real Estate Commission requires that such a contract be in writing. Scheerer et al v. Fisher et al, (N.C. Court of Appeals, COA09-236, filed January 19, 2010), reverses the trial court’s dismissal of the lawsuit brought by a procuring real estate agent who was stiffed by his client on a commission.
The real estate agent, who had a prior professional relationship with the developer, notified the developer that the property in question was for sale. The developer entered into an initial purchase contract for the property in March of 2007 for a purchase price of $20,000,000. The contract provided that the seller would pay a 2% commission to the real estate agent (more…)
Category: Court Opinions |
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Tags: express contract, implied contract, North Carolina Real Estate Commission, oral brokerage contract, quantum meruit, real estate brokerage contract, real estate commission
Posted By William Plyler on January 12, 2010
Robert McMillan, senior partner with McMillan Smith & Plyler, allowed me to publish his tribute to attorney H. Spencer Barrow. Mr. McMillan presented the tribute on 6/19/09 at a memorial service in Wake County Superior Court which honored Mr. Barrow and other Wake County attorneys who passed away in the preceeding year. The tribute is published in its entirety.
SPENCER BARROW WAS BORN IN APRIL OF 1945 AND GREW UP IN AHOSKIE. AS A YOUNG MAN GROWING UP HE HAD A WELL ROUNDED CAREER MARKED BY REMARKABLE ATHLETIC PROWESS. HE HAD TO ABANDON HIS DREAMS OF ATHLETICS DUE TO SERIOUS INJURIES, BUT HE WENT ON TO GRADUATE FROM U.N.C. CHAPEL HILL AND THE LAW SCHOOL OF WAKE FOREST.
FOLLOWING GRADUATION FROM LAW SCHOOL SPENCER ENJOYED WHAT MANY CONSIDER TO BE THE EXPERIENCE OF A LIFE TIME (more…)
Category: Robert McMillan |
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Tags: Carl Churchill, law-related anecdotes, Robert McMillan, Spencer Barrow, Wake County Bar Association memorial service
Posted By William Plyler on January 6, 2010
The North Carolina Court of Appeals held yesterday that a homeowners’ association cannot be compelled to arbitrate its claim against Georgia-Pacific Corporation for defective wood trim products used in the construction of townhomes. Harbour Point Homeowners’ Assciation, Inc. et al v. DJF Enterprises, Inc. et al (NC COA09-527, filed January 5, 2010), rejected Georgia-Pacific’s contention that an arbitration clause included in its extended warranty created a binding, mandatory arbitration agreement with the plaintiff.
The appellate court held that the arbitration clause was permissive, not mandatory. Only the owner of the property, not Georgia-Pacific, had the right to demand that a dispute be resolved through arbitration. The following language contained in the arbitration agreement proved critical to the Court of Appeals: “If a claim under the foregoing warranty is not resolved to the owner’s satisfaction, upon the written request of the owner or claimant, Georgia-Pacific agrees to submit any and all disputes . . . to binding arbitration . . . “(emphasis in appellate opinion). The opinion relies upon what it describes as “well settled contract law principles” in finding that “the language of the arbitration clause should be strictly construed against the drafter of the clause.”
Category: Arbitration, Court Opinions |
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Tags: Arbitration, arbitration agreement, construed against drafter, mandatory arbitration, permissive arbitration
