Declaratory Judgment | North Carolina Lawyers Weekly

North Carolina Lawyers Weekly > Declaratory Judgment

Real Property – Restrictive Covenants – Waiver – Civil Practice – Standing – Neighboring Landowners

By North Carolina Lawyers Weekly Staff
Published: February 6,2013

McCrann v. Pinehurst, LLC The owners of land adjacent to Pinehurst’s Village Green lack standing to contest Pinehurst, LLC’s waiver of restrictions on use of the Village Green land by the land’s owners:

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

By North Carolina Lawyers Weekly Staff
Published: May 8,2012

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.

Civil Practice – Declaratory Judgment – Mootness – Labor & Employment – Public Employees – Breach of Contract Allegation

By North Carolina Lawyers Weekly Staff
Published: March 21,2012

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.

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

By North Carolina Lawyers Weekly Staff
Published: October 11,2011

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.

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

By North Carolina Lawyers Weekly Staff
Published: August 10,2011

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.

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

By North Carolina Lawyers Weekly Staff
Published: June 24,2011

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.

Civil Practice – Consent Judgment – Enforcement – Rule 70 Inapplicable – Declaratory Judgment – Real Property – Avigation Easement

By North Carolina Lawyers Weekly Staff
Published: April 28,2011

Sampson County v. Parker Family Real Estate, LLC. (Lawyers Weekly No. 11-16-0438, 11 pp.) (Linda Stephens, J.) Appealed from Sampson County Superior Court. (Benjamin G. Alford, J.) N.C. App. Unpub. Click here for the full text of the opinion. Holding: In order to enforce the avigation easement plaintiffs obtained in the parties’ consent judgment, plaintiffs [...]

Insured recovers on counterclaim for malicious prosecution over Wilson fire

By North Carolina Lawyers Weekly Staff
Published: March 8,2011

Laurie Volpe was the owner of Cully’s Motorcross Park, Inc. Cully’s was originally the owner of a motorcross park in Florida. When Volpe and her husband, Louis Volpe, moved to North Carolina, Cully’s was incorporated in North Carolina and began purchasing, refurbishing and selling/renting homes in the historic district of Wilson. Laurie was the sole [...]

Defendants succeed in dispute over sprayless paint repair

By North Carolina Lawyers Weekly Staff
Published: January 13,2011

Plaintiff and individual defendant conducted an approximately four-year business relationship without a written agreement, involving the plaintiff’s marketing and sales of an automotive paint repair product invented and patented by defendant. Plaintiff claimed that the parties had agreed to establish a partnership entity in which he was one-half owner. Defendants contended that the parties agreed [...]

Civil Practice – Insurance – Declaratory Judgment

By North Carolina Lawyers Weekly Staff
Published: December 7,2010

General Casualty Company of Wisconsin, Southern Pilot Insurance Company v. Image Builders Inc., d/b/a Hanson Builders, Richard Hanson, Carl Schneider and Cheryl Schneider. (Lawyers Weekly No. 10-04-1141, 16 pp.) (Reidinger, J.), USDC, Western District, Asheville Division, North Carolina, No. 1:09cv159, Oct. 29, 2010. There was no insurance coverage for damage which resulted from faulty construction [...]

Recent NC Court Opinions

Tort/Negligence – STCA – Schools & School Boards – Bus/Van Collision – Right of Way – Bus Driver’s Lookout
Bartlett v. Wayne County Board of Education Plaintiffs contend that the majority of eyewitnesses in this case testified that the responding officer’s diagram depicting the accident scene was accurate, that the diagram demonstrates plaintiffs’ “van had to have been almost directly in front of the bus at the time [the bus driver] started her turn,” and that this evidence conclusively established that the bus driver failed to yield the right-of-way to plaintiffs’ van.
Taxation – State Income — U.S. Treasury Bonds – Market Discount Income – First Impression — Interest
Fidelity Bank v. North Carolina Department of Revenue Even though the N.C. Revenue Act uses the Internal Revenue Code to determine state net income, and even though the Code treats “market discount income” on U.S. Treasury bonds as interest for purposes of the Code, under the N.C. Revenue Act market discount income on U.S. Treasury bonds is treated as income rather than interest.
Contract – Forum Selection Clause – Arbitration – Labor & Employment
Apex Tool Group, LLC v. Ingersoll-Rand Co. Neither plaintiff nor the individual defendants are Texas residents; nevertheless, each of the individual defendants’ employment agreements includes an unambiguous and mandatory forum selection clause, which says any lawsuit involving the agreement must be brought in Harris County, Texas. The employment agreements were entered into by plaintiff’s predecessor and the individual defendants, who apparently did not live in Texas when they entered into the contracts and thus apparently anticipated interstate travel in the event of a trial.

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