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Insurance – Auto — Duty to Indemnify – Dealership Car – Tour Company Errand (access required)

National Interstate Insurance Co. v. Morgan & Sons Weekend Tours, Inc. At issue in this declaratory judgment case is whether a tour company’s auto insurance policy provides coverage for an accident that happened while defendant Morgan, who owns both the tour company and a car dealership, was using a car owned by the dealership to drive to the tour company to open the bus lot for an early tour.

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Intellectual Property – Trademark – Netherlands Flag – Antitrust – Noerr-Pennington Doctrine (access required)

RE/MAX LLC v. M.L. Jones & Associates, Ltd. Even if plaintiff’s trademark has become incontestable, it may still be canceled if it was obtained contrary to 15 U.S.C. § 1052(b), which prohibits registrations of foreign flags or their simulations. Defendants identify the similarities between plaintiff’s trademarks and the flag of the Netherlands’ red-over-white-over-blue horizontal bars.

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Labor & Employment – Wage & Hour Act – Incentive Plan – Payment Schedule – Tort/Negligence – Unjust Enrichment Claim – Civil Practice – Declaratory Judgment (access required)

Dulaney v. Inmar, Inc. Before Jan. 1, 2010, the defendant-employer gave the plaintiff-employee a copy of its “2010 Promotion Services Rebate and Fulfillment Services Sales and Renewal Incentive Plan.” According to the Plan, incentive payments were to be made approximately six weeks after the end of the quarter in which the qualifying sales were made; moreover, one had to be a Plan participant at the time of the payout in order to receive the incentive payment. Plaintiff resigned on July 22, 2010, prior to the Plan’s incentive payout date for the quarter ending June 30, 2010; therefore, the employer did not violate the Wage and Hour Act when it failed to make incentive payments to plaintiff for her second-quarter sales.

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Civil Practice – Declaratory Judgment – Mootness – Labor & Employment – Public Employees – Breach of Contract Allegation (access required)

Hindman v. Appalachian State University Where the Feb. 10, 2011 complaint sought only a declaratory judgment that defendants had breached the plaintiff-professors’ contracts by reducing their salaries by 0.5 percent for the 2008-09 academic year, defendants were entitled to summary judgment on mootness grounds.

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Administrative – Prisons & Jails – APA – Council of State – Lethal Injection Protocol – First Impression — Declaratory Judgment (access required)

Conner v. North Carolina Council of State Even though the Council of State is subject to the Administrative Procedure Act, since the Department of Correction is exempt from the APA, when the Council of State reviews the DOC’s lethal injection protocol, the APA does not apply. We modify and affirm the superior court’s dismissal of the petition. Petitioners are DOC inmates who have been sentenced to death by lethal injection.

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Real Property – Office Park Declaration – Stormwater Retention Pond Maintenance – Civil Practice – Declaratory Judgment – Summary Judgment — Continuance Motion (access required)

Beaches West Developments, Ltd. v. North Carolina Eye, Ear, Nose & Throat, P.A. Defendants produced an affidavit from an expert in landscape architecture forecasting testimony that the stormwater retention pond for the parties’ office park is in compliance with all city regulations and, to the extent required, with the customary standards of a Class A office park. Plaintiff, on the other hand, produced nothing beyond its own admittedly lay opinion that the pond should have more attractive landscaping in order to conform to Class A office park standards - which it claimed were impossible to specifically identify. Plaintiffs failed to make out a prima facie case that defendants were in default of their duties to maintain the pond under the office park’s declaration.

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Tort/Negligence – Real Property – Trespass – Declaratory Judgment – Neighbors’ Fence – Across Property Line – Remedies – Injunction – Removal (access required)

Mathis v. Hoffman After her neighbors mistakenly built their fence on her property, defendant was not entitled to choose her remedy. It was within the trial court’s authority to enter an injunction allowing plaintiffs to move the fence to their own property at their expense. We affirm summary judgment for plaintiffs.

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