Bill Summary for H 189 (2013-2014)

Summary date: 

Jun 24 2014

Bill Information:

View NCGA Bill Details2013-2014 Session
House Bill 189 (Public) Filed Thursday, February 28, 2013
A BILL TO BE ENTITLED AN ACT TO ALLOW DURHAM, ORANGE, FORSYTH, GUILFORD, MECKLENBURG, AND WAKE COUNTIES TO RETAIN A LOCAL SALES AND USE TAX CAP OF TWO AND THREE-QUARTERS PERCENT IF A MAJORITY OF VOTERS IN THOSE COUNTIES APPROVE THE LEVY OF A ONE-QUARTER PERCENT TAX IN A REFERENDUM HELD BY THE END OF 2016; TO EXPAND THE MAXIMUM GRANT ALLOWED FOR A TELEVISION OR VIDEO SERIES; TO CLARIFY THAT A FARMER'S INCOME FROM FARMING OPERATIONS FOR THE PURPOSE OF THE SALES AND USE TAX EXEMPTION IS GROSS SALES AND ALL OTHER INCOME FROM FARMING OPERATIONS; AND TO MAKE OTHER TECHNICAL CHANGES TO THE REVENUE LAWS
Intro. by Glazier, Stevens, L. Hall.

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Bill summary

Senate amendment #1 to the 3rd edition adds the following.

Amends GS 7A-27(a) regarding appeals of right from trial division courts to expand the cases in which the appeal by right lies directly with the Supreme Court to include any final judgment in a case (1) designated as a mandatory complex business case under GS 7A-45.4; (2) designated as a discretionary complex business case under Rule 2.1 of the General Rules of Practice for the Superior and District Courts; (3) from any interlocutory order of a Business Court Judge which affects a substantial right, determines the action and prevents a judgment from which an appeal might be taken, discontinues the action, or grants or refuses a new trial. Applies to actions designated as mandatory complex business cases on or after October 1, 2014.

 Requires appeals under GS 7A-27(a)(2) and GS 7A-27(a)(3) be taken according to the NC Rules of Appellate Procedure applicable to civil cases.

Amends GS 7A-45.3 to require a presiding Business Court Judge to issue a written opinion in connection with any order granting or denying a motion under GS 1A-1, Rule 12, 56, 59, or 60, or any order finally disposing of a complex business case.

Amends GS 7A-45.4 regarding the designation of an action as a complex business case. Permits any party to designate an action as a mandatory complex business case when the action involves a material issue related to: (1) disputes involving the law governing corporations, except charitable and religious organizations qualified on the grounds of religious purposes; partnerships; and limited liability companies, including disputes arising under General Statutes Chapters 55, 55A, 55B, 57D, and 59; (2) disputes involving securities law, including those arising under GS Chapter 78A; (3) disputes involving an antitrust or unfair competition law; (4) disputes involving trademark law; (5) disputes involving ownership, use, licensing, lease, installation, or performance of intellectual property; (6) disputes involving trade secrets except those involving enforcement of a noncompetition or non-solicitation covenant; and (7) certain contract disputes in which all of the specified conditions are met including that the amount in controversy is computed as at least $1 million. Requires that the following actions must be designated as mandatory complex business cases: (1) an action involving a material issue related to tax law that has been the subject of a contested tax case for which judicial review is requested under GS 105-241.16 or that is a civil action under GS 105-241.17 containing a constitutional challenge to a tax statute as applied to the plaintiff, (2) an action described in specified subdivisions of subsection (a) of GS 7A-45.4 in which the amount in controversy computed in accordance with GS 7A-243 is at least $5 million, and (3) an action brought pursuant to GS 62-350 that involves regulation of pole attachments. Requires the party designating an action as a mandatory complex business case to file a Notice of Designation in the Superior Court in which the action has been filed and to at the same time serve notice on each opposing party or counsel and on the Superior Court Judge for Complex Business Cases. Additionally requires contemporaneous transmission of the notice by e-mail to the Chief Justice of the Supreme Court for approval of the designation as a mandatory complex business case and assignment to a specific Business Court Judge. Provides that failing to designate an action as a mandatory complex business case when it is required to be designated as such under subsection (b) of this section requires the Superior Court in which the action has been filed to either dismiss the action without prejudice or stay the action until it has been properly designated as a mandatory complex business case under this section. Requires the opposition to the designation of an action as a mandatory complex business case to assert all grounds on which the party objects and any not asserted are conclusively waived. Requires any party opposing a stay to, within 30 days after the entry of the order staying a pending action, file an objection with the Business Court asserting all grounds on which the party objects; any not asserted are conclusively waived. Requires the Business Court Judge (was, allowed) to rule by written order on the opposition or objection, based on the opposition or on its own motion. Provides that if an action required to be designated as a mandatory complex business case is not so designated, the Superior Court in which the action has been filed must stay the action until it has been designated as such. Requires the designating party to pay the filing fee. Nothing in this section is intended to permit actions for personal injury grounded in tort to be designated as mandatory complex business cases. Effective October 1, 2014.

Amends GS 7A-305(a)(2) to increase the filing fee for complex business cases to $1,100 (was, $1,000). Also provides that if a court on its own motion assigns a case to a special superior court judge as a complex business case under GS 7A-45.3, the plaintiff is required to pay an additional $1,100 (was, $1,000) for support of the General Court of Justice.  Adds that the fee upon assigning a case as a complex business case is assessable or recoverable. Effective October 1, 2014.

Amends GS 7A-343 to expand the duties of the Director, who is the Administrative Officer of the Courts, to include a requirement that the Director prepare and submit a semiannual report on the activities of each North Carolina business court site to the Chief Justice and to each member of the General Assembly. Provides specifications as to the content and scope of this report and declares it to be separate from the report currently required under subdivision (8) of this section.

Enacts new GS 55-11-11, Merger to effect a holding company reorganization. Sets out six terms and definitions to be used in this section, including company officialholding company, and surviving entity. Provides that, unless expressly required by articles of incorporation, no vote by the shareholders is required to authorize a merger with or into a single direct or indirect wholly owned subsidiary of the constituent corporation if eight specified conditions are satisfied, including that the constituent corporation and the direct/indirect wholly owned subsidiary of the constituent corporation are the only constituent entities to the merger and the directors of the constituent corporation become or remain the directors of the holding company upon the effective time of the merger. Provides that if the organizational documents of the surviving entity do not contain certain, specified provisions as outlined in the act, then the organizational documents must be amended in the merger to contain the specified provisions. Allows organizational documents to be amended in the merger to reduce the number of classes and shares of capital stock or other equity interests. Effective August 1, 2014.

Provides that no provision of this act or provision found in an entity’s organizational documents can be deemed or construed to require approval of the shareholders of the holding company to elect or remove directors/managers/managing members of the governing body of the surviving entity.  Sets out three provisions which apply from and after the effective time of a merger adopted by a constituent corporation by its board of directors and without a vote of shareholders, including that to the extent a shareholder of the corporation, immediately prior to the merger, had standing to institute or maintain derivative litigation on behalf of the constituent corporation, then nothing in this act limits or extinguishes that standing. Effective August 1, 2014.

Sets out certain requirements for certifying a plan of merger pursuant to these provisions. Requires the secretary or assistant secretary to certify the plan of merger. Provides that no certification is required if a certificate of merger or consolidation is registered in lieu of filing the plan of merger. Requires plans to be filed in order to become effective. Effective August 1, 2014.

Amends GS 55-11-06, concerning the effect of merger or share exchange, updating statutory references.  Effective August 1, 2014.

Amends Article 26A of GS Chapter 1. Rewrites the title of Article 26A as Three-Judge Panel for Redistricting Challenges and for Certain Challenges to State Laws (was, Three-Judge Panel for Redistricting Challenges).

Adds new subsections to GS 1-267.1 to provide that except as provided in subsection (a) of this section, any challenge to the validity on its face of an act of the General Assembly must be transferred under GS 1A-1, Rule 42(b)(4), to Wake County Superior Court (Court) to be heard and determined by a three-judge panel of the Court, organized as prescribed by subsection (b2) of this section. Requires the Chief Justice of the Supreme Court to appoint three resident superior court judges to a three-judge panel of the Superior Court of Wake County to hear challenges to the validity of an act of the General Assembly on its face. Specifies the organizational structure of the three-judge panel, including the requirement for representation of different regions of the state and replacing members as necessary. Prohibits entering an order or judgment based on a finding that an act of the General Assembly is facially invalid based upon either the North Carolina or United States Constitution except by this three-judge panel. Provides that this section applies only to civil proceedings, and nothing in this section is to be construed as applying to a defendant in a criminal proceeding or to proceedings in which GS Chapter 15A is applicable.

Amends GS 1-81.1 to provide that in an action seeking injunctive relief to stay enforcement, operation, or execution of an act of the General Assembly based on an allegation that the act is unconstitutional on its face under the US or NC constitution, venue lies exclusively with the Wake County Superior Court. Makes conforming changes to GS 1A-1, Rule 42, Consolidation; separate trials.

Amends GS 1A-1, Rule 62, adding a new subsection (h) to clarify that where a trial court grants injunctive or declaratory relief restraining the enforcement or execution of an act of the General Assembly against a party in a civil action, the trial court shall stay the relief granted pending appeal. Provides that this subsection only applies when the state or a political subdivision of the state is a party in the civil action. Declares that this subsection does not apply to facial challenges heard by a three-judge panel under GS 1-267.1.

Amends GS 7A-27 to provide that an appeal lies of right directly to the Supreme Court from any order or judgment of a court, either final or interlocutory, that holds that an act of the General Assembly based on the US or NC constitution is unconstitutional on its face. Makes a conforming change to GS 7A-27 and to GS 105-241.17.  

The provisions on the 3-judge panel are effective on July 1, 2014, and apply to any claim filed on or after that date.

Enacts new GS 55-7-50 providing that a provision included in the articles of incorporation of a corporation that provides that the NC state courts are the exclusive forum for any derivative proceeding under GS Chapter 55 are effective and enforceable against any shareholder who has voted in favor of approval of any amendment to include such a provision and any shareholder with respect to any shares acquired after the inclusion of such a provision in the articles of incorporation.

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