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Civil Practice

Jul 12, 2023

Civil Practice – Appeals – ‘Service’ vs. ‘Notice’ – First Impression

Even if plaintiff was effectively served with the trial court’s order – granting summary judgment for defendants – under Fed. R. Civ. P. 77(d), she did not receive notice for purposes of Fed. R. App. P. 4(a)(6) given that the mailing was returned to the clerk of court as undeliverable. We vacate the district court’s […]

Jun 29, 2023

Civil Practice – Venue – Vacation Rental Contract – Renter’s Guests – Third-Party Beneficiary & Estoppel Arguments

In this wrongful death case arising out of the death of plaintiffs’ minor child at a vacation home in Corolla, defendants seek to enforce a forum selection clause in the vacation rental contract between the defendant-rental agent and the deceased child’s grandmother. Defendant has failed to show that plaintiffs were third-party beneficiaries of the contract […]

Jun 21, 2023

Civil Practice – Personal Jurisdiction – Jurisdictional Discovery – Appeals

Without ruling on plaintiff’s motion for jurisdictional discovery, the trial court granted defendants’ motion to dismiss for lack of personal jurisdiction. The trial court did not have the benefit of Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017 (2021) (clarifying the proper standard for the “relating to” prong of specific […]

Jun 21, 2023

Civil Practice – Appeals – Writ of Certiorari – Constitutionality Challenge

The trial court ruled that the defendant-YMCA’s challenge to the constitutionality of the SAFE Child Act was a facial challenge subject to review by a three-judge panel. A majority of the Court of Appeals panel granted a writ of certiorari and reversed, finding the YMCA had asserted an as-applied challenge, which the trial court could […]

Jun 21, 2023

Civil Practice – Statutes of Limitations – Declaratory Judgment Actions – Related Causes of Action

Defendants rest their declaratory judgment counterclaim as to two capital calls on alleged breaches of the operating agreements of the parties’ limited liability companies, alleged self-dealing in violation of plaintiff JBS Ventures, LLC’s fiduciary duties, or both. As such, defendants’ declaratory judgment counterclaim simply restates defendants’ counterclaims for breach of contract or br[...]

Jun 21, 2023

Civil Practice – Statute of Limitations – Pleadings – Fraud – LLC Members

Plaintiffs allege that defendant Pacheco, a member of the parties’ limited liability company, wrongfully took money from the LLC. Even though plaintiffs allege that defendant Pacheco’s wrongdoing occurred more than three years ago, they allege that they discovered Pacheco’s wrongdoing in a subsequent investigation. Since the complaint does not allege the date of the investigation, […]

Jun 12, 2023

Civil Practice – Consent Order – Judgment vs. Contract – Remedies – Real Property Sale

Even though the consent order at issue contained findings of fact and conclusions of law, since (1) plaintiffs’ counsel drafted the order, (2) no hearing was held on the consent order, (3) Judge Disbrow signed the consent order after it had been drafted and signed by the parties, and (3) defendants’ brief says the parties […]

Jun 6, 2023

Civil Practice – Appeals – Jurisdiction – Rules Violations

Plaintiff’s notice of appeal does not specifically refer to a filed order; it refers to an oral order made on July 11, 2022, by Judge Steve Warren. A generous reading of plaintiff’s notice of appeal gives us jurisdiction over only the trial court’s order dismissing plaintiff’s amended complaint. Plaintiff has committed multiple rule violations including […]

Jun 2, 2023

Civil Practice – Appeals – Preliminary Injunction – Real Property – Fence Removal

Defendant placed a fence along the property line between his and plaintiff’s lots, preventing plaintiff from continuing to use part of a circular driveway that plaintiff has used since 1996. In a preliminary injunction, the trial court ordered defendant to remove the portion of the fence blocking the driveway. Given that there is no evidence […]

Jun 2, 2023

Civil Practice – Necessary Parties – Tort/Negligence – Premises Liability – Intentional Tortfeasor – Statute of Limitations

Plaintiff’s premises liability claims against defendants arise out of injuries he suffered when a vehicle driven by Michel Alonzo Contador struck plaintiff and several other people in defendants’ parking lot. If plaintiff received a judgment in his favor, defendants could seek contribution from Contador; accordingly, Contador is a necessary party. Since the statute of limitations […]

Jun 2, 2023

Civil Practice – No-Contact Order – Stalking – No Intent Finding

In its civil no-contact order, the trial court failed to make any finding that defendant specifically intended to cause any of the harms listed under G.S. § 50C-1(6). Regardless of whether there was sufficient evidence to support the trial court’s finding of harassment, issuance of a proper civil no-contact order for stalking requires the trial […]

May 22, 2023

Civil Practice – Appeals – 11th Amendment Immunity – State OSHA Enforcement

Two of the plaintiff-employer’s employees died because of a fire at work, and North Carolina’s Occupational Safety and Health Hazard Association (NC OSHA) assessed several penalties against plaintiff. Plaintiff alleges that defendants – officials with authority over NC OSHA – are in violation of 29 U.S.C. § 657(h) because they evaluate their employees’ performance based […]

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