Posted: February 25th, 2013 | By: Lisa Snedeker
For the 21st consecutive year, Wake Forest law school will host oral arguments in the North Carolina Court of Appeals at 3 p.m. on Tuesday, Feb. 26, in Room 1312 of the Worrell Professional Center.
Judge Robert C. Hunter will be the presiding judge. Judge J. Douglas McCullough and Judge Mark A. Davis will also be on the panel.
“We are pleased to have such a distinguished panel of judges,” said Professor Chris Coughlin, director of Legal Analysis, Research & Writing.
The following two cases have been set for argument: State v. Tucker, COA12-1068, from Guilford County, and Sasso v. Statesville Flying Service, COA12-935, from Iredell County.
The first case to be heard, State v. Tucker, COA 12-1068, is a criminal case concerning a long-distance truck driver who moved furniture for a North Carolina moving company. The truck driver moved furniture from North Carolina to Nevada where he collected money from the client but never turned it over to the moving company. Rather, the defendant used the money for personal and professional matters. The defendant was later convicted of embezzlement in Guilford County, North Carolina. The case presents three issues for the court: (1) whether the trial court had jurisdiction in this matter where the conversion of money occurred in Nevada, not North Carolina; (2) whether the trial court should have instructed the jury on the issue of territorial jurisdiction and required the jury to return a special verdict finding jurisdiction in North Carolina; and (3) whether the trial court erred in allowing the State to amend the indictment to include the term “agent” after “employee” as the defendant allegedly would not have been convicted as he was not an employee of the moving company.
The second case to be heard, Sasso v. Statesville Flying Service, Inc. and City of Statesville, is a civil case arising from an airplane accident in Statesville. Among the lawyers who will be arguing on behalf of their clients tomorrow, Professor John Korzen ( ’91), who directs the law school’s Appellate Advocacy Clinic, is counsel of record for the plaintiff. Robert Potter (’90) is representing the City of Statesville in that appeal.
Plaintiffs, Florida residents, sued the pilot and four other defendants, including Statesville Flying Service, Inc. and the City of Statesville, in Florida. After Statesville Flying Service, Inc. and the City of Statesville moved to dismiss for lack of personal jurisdiction and moved for sanctions, Plaintiffs dismissed their claim against these two Defendants from the Florida action. The Florida action continues. Plaintiffs had also filed a complaint against these two Defendants alone in North Carolina, and they later took a voluntary dismissal of that action.
Plaintiffs then filed a second complaint against these two Defendants in North Carolina. In answering the complaint, Defendants did not include an affirmative defense for res judicata or North Carolina Rule of Civil Procedure 41(a), which provides that a second voluntary dismissal of an action constitutes an adjudication on the merits. Rule 8(c) requires affirmative defenses to be pleaded in the answer, but case law allows Defendants to raise affirmative defenses in a motio for summary judgment, as long as Plaintiffs would not be prejudiced. In this case, after many months of extensive discovery, Defendants moved for summary judgment, and one of their grounds for summary judgment was res judicata based on Rule 41(a). The trial court allowed summary judgment on that ground. Plaintiffs contend that summary judgment was improper for three reasons: the defense was raised too late, because they were prejudiced; the dismissal in Florida was not the dismissal of an “action” within the meaning of Rule 41(a); or applying res judicata in this case would work an injustice.