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Civil Practice – Judges – Motions to Dismiss – Same Grounds – Necessary Party – Timely Joinder – Real Property – Lien (access required)

Homeshield Vinyl Siding & Windows, Inc. v. Parker & Orleans Homebuilders, Inc. Even though Judge Hobgood denied a motion to dismiss brought under N.C. R. Civ. P. 12(b)(6) and Judge Hight later granted a motion to dismiss under Rule 12(b)(7), the basis for both motions was defendants’ argument that plaintiff failed to timely join a necessary party.

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Domestic Relations – DVPO – Motion to Dismiss – Sufficient Allegations – Calls & Emails (access required)

Harmon v. Leeuwenburg Plaintiff alleged that she and defendant were members of the opposite sex who had been in a dating relationship and that defendant “has attempted to cause or has intentionally ... placed [her] or a member of [her] family or household in fear of imminent serious bodily injury or in fear of continued harassment that rises to such a level as to inflict substantial emotional distress” based on defendant’s emails and phone calls, the content of which plaintiff claimed had become “increasingly ... more threatening.” Plaintiff included four handwritten pages of excerpts from the alleged voicemails and emails. She also indicated her belief that there was a danger of serious and immediate injury to her or her children.

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Criminal Practice – Murder – Self-Defense – Motion to Dismiss – First Shot Fired (access required)

State v. Sistler Even though defendant presented evidence that the victim fired the first shot, when ruling on defendant’s motion to dismiss, the trial court correctly considered the evidence in the light most favorable to the state, including evidence that defendant fired the first shot. We find no error in defendant’s conviction of first-degree murder.

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Bankruptcy – Appeals – Motion to Dismiss – ‘Abusive’ — Denial – Final Order (access required)

McDow v. Dudley A bankruptcy court order denying the U.S. Trustee’s motion to dismiss a debtor’s Chapter 7 bankruptcy case as abusive under 11 U.S.C. § 707(b) is a final order appealable under 28 U.S.C. § 158(a), and the 4th Circuit reverses the district court decision dismissing the appeal as interlocutory. Because of the particular effect an order denying a motion to dismiss a Chapter 7 bankruptcy case as abusive has on the bankruptcy proceedings, we conclude a bankruptcy court’s order denying such a motion is appealable to the district court.

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Civil Practice – Motion to Dismiss (access required)

Zairy v. VKO, Inc. Where a plaintiff failed to file a notice of appeal of a Sept. 16, 2009 order granting two defendants’ dismissal motion, we do not have jurisdiction to consider plaintiff’s appeal and must dismiss it. We also dismiss the plaintiff’s appeal of a March 1, 2010 order which denied a renewed motion to compel discovery and a motion for reconsideration of the Sept. 16, 2009 order, as (1) the trial court did not certify its March 1, 2010 order for appeal, (2) the plaintiff’s only other route of appeal would be that a substantial right has been adversely affected and (3) plaintiff fails to argue that a substantial right was affected.

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Criminal Practice – Driving While Impaired – Second-Degree Murder – Blood-Alcohol Content – Expert Testimony – Motion to Dismiss (access required)

State v. Patterson. (Lawyers Weekly No. 11-16-0251, 12 pp.) (Judge Linda S. Stephens) Appealed from Randolph County Superior Court (V. Bradford Long, J.) N.C. App. Unpub. Click here for the full text of the opinion. Holding: The probative value of ...

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