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Recent Articles from Teresa Bruno, Opinions Editor
Zoning – Standing – Asphalt Plant – Neighbors – Special Damages
Petitioners’ only admissible evidence of special damages was their own testimony that their property would suffer a diminution in value if the Hampton respondents’ asphalt plant were allowed to operate; consequently, petitioners lack standing to seek review of the superior court’s order affirming county’s decision to allow the plant to operate. Petitioners’ appeal is dismissed. […[...]
Civil Practice – Rule 60 – Real Property – Mortgages – Anti-Deficiency Statute
The defendant-borrower’s former counsel withdrew without telling defendant about the anti-deficiency statute, but the attorney’s withdrawal was not the reason summary judgment was entered in favor of plaintiff. The borrower was given three weeks to retain new counsel yet failed to do so; further, defendant failed to argue the affirmative defense of the anti-deficiency statute […]
Real Property – Prescriptive Easement – Deed Description – Proposed Road
The parties’ predecessor-in-interest divided her property into the present parties’ adjacent lots, and the parties’ deeds showed strips of their lots taken for a proposed road between the lots. Where plaintiff has used the road (which the town paved in 2006) since 1982, despite defendant’s protests, plaintiff has a prescriptive easement in the road. We […]
Domestic Relations – Equitable Distribution – Valuation – Sports Memorabilia – Wife’s Research
Although an unsubstantiated opinion as to property’s value is insufficient, the defendant-wife could testify about the value of the plaintiff-husband’s sports memorabilia collection after she (1) researched (a) plaintiff’s eBay bidding history, (b) his Bank of America credit card statements, and (c) a PayPal report in plaintiff’s name; (2) took inventory from the sports memorabilia [&helli[...]
Contract – Security System – Failure to Pay or Return – Findings of Fact
Plaintiff installed a security system at defendant’s restaurant, though plaintiff was unable to follow through with a promised new feature. At trial, defendant’s president admitted that defendant had failed either to pay for the security system or to allow plaintiff to retrieve that system. Accordingly, the evidence supports the trial court’s findings and conclusion that […]
Tort/Negligence – Unfair Trade Practices – Real Property – Home Construction – Civil Practice – Appeals – Mootness
The plaintiff-homebuyer sufficiently stated a claim for unfair trade practices against defendants who allegedly negligently built and sold her a house but failed to notify her of the defective conditions in the house. We dismiss plaintiff’s appeal of the dismissal of her negligence claim. We affirm the trial court’s dismissal of plaintiff’s fraud claim, but […]
Criminal Practice – Restitution – Plea Agreement – Dismissed Charges’ Victims
In exchange for defendant’s plea of guilty to seven counts of felony breaking and entering, the state dismissed three counts of the same offense. The trial court had no authority to require defendant to pay restitution to the victims of the three dismissed break-ins. We vacate the restitution portion of defendant’s sentence and remand for […]
Criminal Practice – Certiorari – Insufficient Showing – DWI
After defendant was arrested for driving while impaired, the magistrate (1) failed to inform her in writing that she could have others appear at the jail to observe her condition, (2) failed to require her to list all persons she wished to contact and their telephone numbers, and (3) accidentally deleted the reasons he recorded […]
Criminal Practice – Misdemeanor Stalking – Evidence – DVPO – Assault – Superior Court Jurisdiction – Weapons
The domestic violence protective orders that the victim obtained against defendant in the past were relevant to show defendant’s course of conduct and his motive to commit the offense of stalking. Given that the trial court redacted the DVPOs and properly instructed the jury regarding the state’s burden of proof as well as the jury’s […]
Criminal Practice – Felony Child Abuse – Pattern Jury Instructions – ‘Sexual Act’ – Separate Assault
This court has held that the definition of a “sexual act” in violation of G.S. § 14-318.4(a2) is the detailed definition set out in G.S. § 14-27.1(4). The N.C. Pattern Jury Instructions’ definition of “sexual act” is more general. Although the trial court gave the inaccurate pattern jury instruction of “sexual act,” defendant has not […]
Corporate – Judicial Dissolution Request – Profitable Company – Dividends – Equity
Even though plaintiff was fired from her job at the family business, since she continues to receive substantial dividends as a shareholder, and since the company continues to operate at a profit, plaintiff has failed to show that the company’s management is deadlocked, the company is unprofitable, or the assets are being mismanaged, as would […]
Domestic Relations – Parent & Child – Custody Modification – Mother’s Stability – Father’s Limitations
Where (1) the mother has now maintained years of sobriety and has married a man who has a positive relationship with the parties’ children, (2) the parents’ communications have worsened, and (3) the father’s limited capabilities have remained static while the children’s needs are becoming more complex, the trial court could conclude that there have […]
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