Possum Law: The Case With Monumental Implications


Every now and again, some important legal news comes from our own backyard here in the Carolinas. None may be more important than the current legal battle over the New Year’s Eve “possum drop” (think Times Square, but with a possum) in Brasstown (Clay County), North Carolina. Earlier this year, People for the Ethical Treatment of Animals (PETA) filed suit seeking to have a North Carolina statute which suspends the application of wildlife protection laws to possums from December 29-January 2 each year (signed into law by Governor McCrory on June 11, 2015) declared unconstitutional. The law at issue was aimed to protect the annual Brasstown tradition of counting down the new year by lowering a live possum in a clear plastic box in front of hundreds of spectators.


The battle has been brewing since 2011 as PETA began challenging Brasstown’s use of a live possum for its signature event. A previous law authorizing the practice, which applied only to Clay County, was struck down by the court. As a result, the North Carolina Legislature took the matter statewide much to the chagrin of PETA. According to the complaint, the statute is unnecessary as previous “possum drops” have included such apparently acceptable substitutes as “a road-killed opossum (shampooed, blow-dried and frozen), a porcelain opossum figurine, an empty box decorated with photos of opossums, and a pot reportedly filled with opossum stew.”

The State moved to dismiss the lawsuit on the grounds that PETA lacked standing to challenge the constitutionality of the law. Last week, however, the Court denied the motion and set the case for a hearing on December 11th to determine whether Brasstown will be ringing in the new year with a live possum or some frozen, shampooed roadkill. Regardless of the outcome, we are certain the decision will be as influential as Marbury v. Madison. We will keep you posted in time for you to make your New Year’s Eve plans.

Abnormal Use and the Halloween CLE!

As you know, we here at Abnormal Use occasionally speak at – or even plan – CLE conferences and seminars. 2015 is no exception, and our editor, Jim Dedman, has just assembled a heckuva Halloween CLE in conjunction with the Mecklenburg County Bar.

If you seek some frightful legal topics about which to learn, check these out:

Statutory Horror: Actual Laws Governing the Supernatural and Occult
A ghastly look into the real laws that govern the occult and the supernatural in North Carolina. This program will delve into the obscure laws on the books preventing you from falling into classic horror film clichés. We will look at haunted houses, mysterious cults, graveyards, and much more, all the while relying on very real cases, statutes, and governmental regulations addressing these very strange circumstances.

Alienation of Affection: The Cause of Action that Refuses to Die
Alienation of affection remains our state’s scariest cause of action.  Although most states have abandoned this ancient tort, it refuses to die here in North Carolina. Equally frightening is criminal conversation, a closely tied tort sounding in strict liability.  This program will address both of these concepts in detail, including the elements of each, practical considerations in filing and trying such suits, and the perils of pursuing these claims.

The Ashley Madison Hack: Legal Frights Waiting To Happen
Of course, by now, you’ve heard about the Ashley Madison website, which purports to facilitate adultery by linking married individuals through its dating website. You’ve also likely heard about the hack of that website and the release of information relating to its subscribers and their various “preferences.” There may be no more terrifying news for parties in family law cases or tort litigants pursuing loss of consortium claims! This presentation will discuss the potential litigation issues that could arise from this hack and others like it.

Strange But True: Uncommon Malpractice Cases and Ethics Violations
You’ve heard the old adage, you can’t make this stuff up?  This program will offer true stories of uncommon challenges to lawyers and the malpractice cases and ethics violations they cause.  You’ll leave with our top tips to avoid the same fate from such bugaboos like:

– The Horrors of Email Scammers – This Client is Too Good to Be True
– When Slimy Clients Sue Their Attorneys
– The Lie Down With Snakes Cases
– Angry Partners and Ugly Firm Breakups — Firm Dysfunction May Cause Ethical Heartburn
– Ignore Warning Signs at Your Peril – Keep an Eye on Your Partner
– The Incredible Hulk Claims – Unrestrained Anger Will Get You in Trouble

That’s right, folks! Those are the four components of the CLE, titled “Scary Laws, Torts, and Crimes (and Ashley Madison): A Halloween CLE,” which will be held on October 29 in Charlotte, North Carolina. Registration information can be found here.

North Carolina Court Of Appeals Matter-Of-Factly Cites Litigant’s Facebook Profile In Factual Background Section Of Opinion

Here’s something interesting.

In the factual and procedural background section of a recent opinoin, the North Carolina Court of Appeals cites to a litigant’s Facebook profile to introduce him in that section. See Staton v. Josey Lumber Co., Inc., No. COA14–1001 (N.C. Ct. App. May 5, 2015).

It’s a workers compensation case, and the claimant “injured his left leg and foot when he fell off scaffolding while welding.” The North Carolina Industial Commission found that it had no jurisdiction to hear his claim because it determined he was an independent contractor and not an employee. The claimant appealed this finding, although the court of appeals affirmed.

In the second paragraph of the factual background section (and the fifth paragraph of the opinion), the court of appeals noted:

Staton called himself a contractor on his Facebook page. He stated that “[m]ost everyone knows I’m a welder. I travel alot chasing jobs. I do shutdown work. That is when a company takes off a week or so and contractors go in and fix whatever is broke.”

The court of appeals quoted this language again in the analysis section of the opinion.

So, here, we’re not dealing with spoliation or impeachment or any of the usual issues when social media is involved in litigation. It offers no citations or footnotes to justify some type of novel citation to new social media technology.

Rather, the Court of Appeals matter-of -factly quotes the litigant’s Facebook profile (just like it would any other statement or document).

How about that?

Gallivan, White, & Boyd, P.A. – A History

As we recently noted, GWB now has an office in Charleston, South Carolina. With our growth over the last five years, we thought our readers might enjoy a bit of the firm’s history. Gallivan, White, & Boyd, P.A. was founded in Greenville, South Carolina in 1948. The firm practiced general law during this time period and served as the statewide division counsel for Southern Railway Company and general counsel for Woodside Bank. The firm continued as general counsel when a merger created the state’s largest bank known as South Carolina National Bank. Southern Railway Company changed its name to Norfolk Southern Corporation in 1982 and remains a client of the firm today.

In the 1950’s, the small law firm began to grow in number and reputation. The firm expanded to four attorneys and relocated to 128 Boadus Avenue in Greenville in 1958. Greenville mirrored the firm in its growth, becoming known as the textile capital of the world in the 1950’s and 1960’s.

During the 1970’s, the firm continued its steady expansion with the addition of H. Mills Gallivan and Daniel B. White in 1976 and W. Howard Boyd, Jr. in 1977. Mills, Danny, and Howard were the firm’s 7th, 8th, and 9th attorneys. With their arrival, the firm began focusing its practice on business and corporate litigation, trial work, and mass tort litigation, including the defense of personal injury cases arising from exposure to toxic substances, including asbestos.

The firm continued its successes in the 1980’s and 1990’s by steadily increasing its reputation as a leading litigation law firm as well as increasing the firm’s number of attorneys and practice areas. The firm moved its practice to 330 East Coffee Street in Greenville in 1983 and grew to 17 attorneys by 1988. Just a few years later, the firm outgrew its Coffee Street location with its growth to 27 attorneys in 1998. In the early 1990’s, the firm served as lead South Carolina counsel for a chemical manufacturer in the first case multidistricted in South Carolina by the Judicial Panel on Multidistrict Litigation.

At the turn of the century, the firm officially became known as Gallivan, White, & Boyd, P.A., and in 2003, it moved to its current location at Liberty Plaza overlooking downtown Greenville. In 2005, members of GWB’s Commercial Transportation Group served as lead counsel in the emergency response, post-accident investigation, and claims handling for a major railroad company after a train derailment and toxic chlorine release resulted in more than 9 deaths and over 1,000 claims in South Carolina.

Then, GWB represented a Fortune 500 client in class actions brought against it by physicians. GWB was also retained in 2008 to represent this client again in a purported class action of its more than 13,000 policyholders seeking distribution of dividends.

GWB experienced continued growth during this decade, opening its first offices outside of Greenville. While continuing its emphasis on litigation, the firm has also expanded its corporate and commercial transaction practice. GWB grew from 27 attorneys in 1998 to 47 attorneys in 2010, to 61 attorneys in 2015. The firm is one of the Southeast’s leading business and commercial law firms with five offices in the Carolinas located in Greenville, Columbia, Anderson, and Charleston, South Carolina and Charlotte, North Carolina.

The firm operates within four major groups—litigation, business and commercial law, insurance practice and workplace practices. Each group is further organized into practice area teams of lawyers who stay informed of the latest developments that impact their specific clients and the particular industries served.

GWB’s success and longevity are intertwined with its reputation for providing wise legal counsel and first-class client service. The values that have come to define Gallivan, White, & Boyd, P.A. to its clients and the community are the compass that guide the firm into the future.

U.S. District Court For The Western District of North Carolina Dissolves Bryson City Division

If you practice in the U.S. District Court for the Western District of North Carolina, we have some news for you. According to an email sent from the court late last month, the Bryson City division is no more:

Please be advised that the Bryson City Division and case number will be dissolved effective 01/01/2015.

All new cases filed that fall within the counties that were before covered by the BC division: Cherokee, Clay, Graham, Jackson, Macon and Swain now are incorporated into the Asheville Division and will be assigned a “1” at the beginning of the case number. (Example: 1:15-cv-00001)

Update your files accordingly.

The Range Feud 2: The Dueling Dukes

The Range Feud 2

Famed actor John Wayne was born Marion Robert Morrison, but he was perhaps best known for his nickname, “The Duke.”  The Duke personified the American Wild West.  He shot and strung up bad guys, fought his way out of tight spots, and generally exhibited a level of awesome manliness that inspired generations of American men.  The Duke also enjoyed his whiskey, and his family recently launched a “Duke” brand whiskey, “inspired by bottles from John Wayne’s personal whiskey collection, preserved for over 50 years and only recently discovered.”  Sounds great, right?  Well, not to everyone.

Reportedly,  Duke University recently filed objections in the trademark office to prevent the whiskey from using the “Duke” name, alleging that doing so will “’cause confusion and dilution’ that hurts the school’s recruiting and reputation.”  The Duke’s family, which has filed a lawsuit of its own in California, denounces Duke University’s arguments as “ludicrous,” and argues that “[Duke University] ‘has never been in the business of producing, marketing, distributing or selling alcohol,’ [but the school] ‘seems to think it owns the word ‘Duke’ for all purposes and applications.”

It will be interesting to see how this one turns out, as both sides have some interesting arguments.  While the outcome is not clear, one thing is. Duke University should count its lucky stars that it is dealing with the family and not the Duke himself, because the Duke didn’t believe in lawsuits:  “Out here a man settles his own problems.”

Let’s Leave 911 Out Of Our Food Complaints, Shall We?

Product liability suits involving food products are not uncommon. In fact, one of the most famous product cases of all time, Stella Liebeck v. McDonald’s, involves a familiar beverage. (Don’t worry, dear readers, this is not another post about the Liebeck case.). While we here at Abnormal Use may not always agree with the outcome, we at least respect a plaintiff’s right to litigate legitimate matters in court. On the other hand, we have  little use for claimants who choose other means to air their grievances. Case in point: North Carolina woman Bevalante Hall recently used 911 to complain about her Subway order. According to a report from the Gaston Gazette, Hall called 911 after a Subway employee allegedly made her flatbread pizza with marinara rather than pizza sauce. In the 911 call, Hall stated that she wanted to make a report so she could call investigators with a local television news station. Hall didn’t get quite what she requested. As a result of the call, Hall was jailed for three minutes before being released on a $2,000 bond.

Had Hall taken to the court system, her claim undoubtedly would have been criticized (rightly) as frivolous. A marinara-sauced pizza is not exactly a defective product. After all, Subway clearly advertises its “flatizzas” as being made with marinara sauce. If suit had been filed, however, our focus would have at least been on the merits of the claim (or lack thereof). Unfortunately, Hall’s claim appears to be more about garnering publicity than resolving a grievance. Leave it to us to oblige.

Online Dating Site Targeted for Alienation of Affection

Online dating is all the rage these days. No longer is it frowned upon to turn to the interwebs in search of a soulmate. With sites like FarmersOnly.com, ClownDating.com, and SinglesWithFoodAllergies.com, it seems like there is an online dating site for just about everyone. We suppose it is a good thing to help ease the stress of trying to find one’s perfect match. But, what if those online dating sites help those who maybe shouldn’t be looking? Like married folks, for example. At least one North Carolina man finds it to be a problem and has filed suit as a result. According to a report out of the Charlotte Observer, after Robert Schindler’s now ex-wife had an affair with a man she met on AshleyMadison.com back in 2007, he filed suit against the site and the man with whom his wife cheated, alleging an alienation of affections and criminal conversation (a/k/a affair). Schindler alleges the site, whose motto is “Life is short. Have an affair,” worked together with the man to ruin his 13-year marriage. Schindler seeks monetary damages in excess of $10,000 as per the North Carolina pleadings rules. Before we dive into our thoughts on the merits of this claim, it should be noted that North Carolina narrowed its alienation laws back in 2009 to permit claims only against “natural persons.” Schindler’s attorneys have argued that because the affair began in 2007 – two years prior to the law change – he is permitted to file suit against the company. The merits of this argument will have to be played out in the courts. We’ll be watching this one closely, folks.

Alienation law changes aside, this lawsuit seems to defy common sense on its face. Yes, Ashley Madison‘s niche in the marketplace is matching up adulterous individuals. The site, however, doesn’t make anyone actually have an affair. Any affair takes two willing participants. We highly doubt that an otherwise happy spouse casually browses the Internet with a happy marriage, stumbles across Ashley Madison, and decides to pursue an affair. The site is nothing more than the vehicle she used to turn the affair into a reality. Believe it or or not, affairs occurred for years without the assistance of online dating sites. We are guessing any spouse can have an affair even without the assistance of Ashley Madison. We would never condone an extra-marital affair. We here at Abnormal Use just don’t think you should hold an online dating site liable for facilitating one. Sure, Ashley Madison‘s unabashed promotion of affairs looks bad on the surface, but is the site really any more ridiculous than a site like DarwinDating.com with a mission to weed out ugly people through the natural selection process? Online dating is simply doing behind a computer what people have been doing inside a bar for hundreds of years. Oh, well.

(Hat Tip: TortsProf Blog / Overlawyered).

North Carolina Shooting Death Leads To Lawsuit Against Gun Manufacturer

Even though talk of gun control has lessened on the political front, firearms litigation continues.  Last month, the estate of Jasmine Thar filed suit against Remington in Mecklenburg County, North Carolina, arising out of the December 23, 2011 shooting death of the North Carolina teenager.  Thar was shot when 23-year old James Blackwell’s Remington .308 Model 700 rifle allegedly misfired while he was cleaning the gun across the street.   The stray bullet also struck two other persons; however, those persons were not killed.  Blackwell claims he never touched the gun’s trigger.  He was investigated for the incident but cleared of any wrongdoing.  The estate sued the gun manufacturer, claiming the rifle malfunctions and misfires, a problem for which Remington allegedly has received thousands of complaints. Before diving into the merits of this suit, we here at Abnormal Use must admit that something about this incident doesn’t seem right.  In the days after the incident, Thar’s family refused to believe the shooting was accidental, believing it to be racially motivated after a Nazi magazine and Confederate flag were found in Blackwell’s bedroom.  The family went as far as to plan boycotts and rallies in the event the district attorney did not charge Blackwell.  Thar’s mother, Claretta McNeil, claimed:

That’s sending out a really negative message out to America.  That we can shoot people and say it’s an accident and get away with it and it’s okay.

Apparently, the message has now changed. At this point, we know little about the validity of the allegations against Remington.  On its website, Remington claims that the rifle is safe when proper precautions are followed.  The company’s own scientific testing of rifles that supposedly misfired has apparently never recreated the problem.  According to Remington,  malfunctions often involve improper maintenance or alterations to the original mechanisms and settings. Clearly, the key issue is the conduct of Blackwell.  Regardless of any defects with the gun or his own alleged racial motivations, he was clearly negligent in cleaning a weapon while it was loaded.  If this incident was accidental, then it could have been prevented with proper gun safety.  The family, however, no longer holds Blackwell responsible.   According to Bernie Coaxum, Thar’s grandfather, “Mr. Blackwell is the conduit of this tragedy, not the cause.”  Nonetheless, without Blackwell’s intervening act of negligence, the accident clearly could have been prevented.

At the end of the day, we must remember that a young girl was killed through no fault of her own.  Determining the responsible party, however, has been relegated to pointing the finger at the party with the ability to pay.

Stop The Presses! New Laches Case In North Carolina!

Our longtime readers know that we here at Abnormal Use have a favorite affirmative defense: laches. In fact, we love laches, so much so that in March of this year we authored the post “Laches – The Saddest of All Affirmative Defenses.” In that fateful post, we observed:

Just as D minor is the saddest of all keys, laches is the most forlorn of affirmative defenses.  Nevertheless, it has always been our favorite, and our dream is to one day win summary judgment based solely on our invocation of laches. But even after all of these years, we are still waiting for such a victory. Why does laches get no respect in dispositive motions?  As an affirmative defense, it’s something slightly less than the statute of limitations defense, which bars claims based on the passage of a set number of years.  Laches, as we all know, means that a party should be prevented from recovery because he or she has sat on their rights for too long, even though that period of time that they waited, may still be within the statute of limitations.

Well, guess what? Earlier this week, our own North Carolina Court of Appeals released a significant laches opinions.  See John Wm. Brown Co., Inc. v. State Employees’ Credit Union, No. 11-CVS-16809 (N.C. Ct. App. Dec. 3, 2013).but of course, the proponents of laches did not prevail.  The court did not mince words:

On appeal, [Plaintiff] contends the trial court erred in granting [Defendant’s] motion to approve and enforce the Agreement because the doctrines of laches and equitable estoppel bar the enforcement of the Agreement over its objection. We disagree.

Oh, well. Here’s a very, very distilled version of the facts: Plaintiff , a general contractor, appealed the trial court’s order granting the defendant credit union’s motion to enforce a settlement agreement. As per custom and case law, the reviewing court analyzed the motion as if it were a motion for summary judgment. In invoking laches to oppose enforcement of the agreement, the plaintiff argued that an insurance company handling the bonds, with the credit union’s knowledge, “sat on its right of assignment under the Agreement of Indemnity for over a year while litigation commenced” and claimed “it was prejudiced as a result of [the insurance company’s delay because it spent substantial amounts of time and money pursuing the litigation.” After describing the doctrine of laches in some level of detail, the court concluded as follows:

We have been unable to find any case where the doctrine of laches has been applied in a scenario similar to the one now before this Court. Given the unique posture in which the doctrine of laches arises and the fact that [Defendant] was not the cause of the delay, we hold the doctrine of laches has no applicability in the present case and does not bar enforcement of the Agreement by [Defendant]. Nevertheless, assuming arguendo the doctrine of laches may be applied to preclude the exercise of a right of assignment by a third party in order to bar the enforcement of a settlement, the result in the present case would not be different. The language in the Agreement of Indemnity is clear, “[n]o failure or delay by [the insurance company] to exercise any right, power or remedy provided pursuant to this Agreement shall impair or be construed to be a waiver of [the insurance company’s] ability or entitlement to exercise any other right, power, or remedy.”

There you have it. Another defeat for laches. Alas.