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Tort/Negligence – Homeowners Insurance – False Application – Contributory Negligence – Jury Question – Out-of-State Insurer
Where the plaintiff-homeowner alleges that (1) he gave the defendant-insurance agent the correct information to fill out an application for homeowner’s insurance; (2) he signed the blank application presented to him by the agent, trusting that the agent would correctly fill out the application for him; (3) the agent filled out the application incorrectly, omitting […]
Criminal Practice – Juvenile – Right against Self-Incrimination – No Judge’s Colloquy
At appellant-juvenile “Karen’s” adjudicatory hearing for assault, Karen’s counsel called her to the stand and the trial court allowed Karen to testify without conducting any colloquy to ensure she understood her right against self-incrimination. Since Karen testified that she “punched” the victim (on direct examination) and “pushed” the victim (on cross-examination), and since the [...]
Environmental – Administrative – Standard of Review – Discharge Permit – Blounts Creek
The petitioner-environmental groups contend that, in issuing a permit to allow Martin Marietta Materials, Inc., to discharge 12 million gallons of mining wastewater per day from Vanceboro Quarry into “tributaries of Blounts Creek,” the respondent Division of Water Resources “failed to conduct the specific analysis required by the biological integrity definition.” Yet, petitioners concede t[...]
Criminal Practice – Constitutional – Equal Protection – Traffic Stop – Suppression Motion
In the Court of Appeals, the lead opinion (two judges on the three-judge panel concurred in the result only without separate opinions) held that (1) the trial court did not err in placing the initial burden on defendant for his motion to suppress for an equal protection violation and (2) without reliable data indicating the […]
Corporate – Admission Agreements – Operating Agreement – Settlement Agreement – Non-Solicitation Agreement – Note Purchase Agreement – Supply Agreement
We determine the rights of the parties under admission agreements, an operating agreement, a settlement agreement, a non-solicitation agreement, a note purchase agreement, and a supply agreement. Defendants’ motion to dismiss claims against the members defendants is granted in part and denied in part. This action arose out of the relationship between plaintiffs Husqvarna Professional […]
Civil Practice – Standing – Breach of Contract – Canadian Litigation — Jurisdiction
Plaintiffs do not have standing to seek relief under section 25-8-403 of North Carolina’s Uniform Commercial Code and, and a result, we lack jurisdiction. We dismiss the complaint without prejudice and deny the motion for preliminary injunction. Plaintiff Visionary Education Technology Holdings Group, Inc. is a Canadian company that offers technology services to high schools […]
Administrative – Medicaid – ‘Department’ – Subject Matter Jurisdiction
On appeal from a superior court judgment upholding an Office of Administrative Hearings decision for respondents, petitioner contends that the OAH lacked subject matter jurisdiction over its petition for a contested case hearing because the adverse determination in question came from respondent Alliance Health. G.S. § 108C-12(b) allows Medicaid providers, like petitioner, to use the […]
Domestic Relations – Equitable Distribution – Not Pleaded – Affidavits – Divorce
Even though the parties filed equitable distribution affidavits and otherwise proceeded as if this child custody action included an equitable distribution claim, since no such claim was filed before the defendant-Wife obtained a divorce in a separate proceeding, the trial court correctly dismissed the equitable distribution matter. The filing of equitable distribution affidavits did not […]
Civil Practice – Involuntary Dismissal – Voluntary Dismissal Proffer – Lesser Sanctions
At a hearing on defendant’s motion for involuntary dismissal for failure to prosecute under N.C. R. Civ. P. 41, plaintiffs’ counsel mentioned plaintiffs’ preference for taking a voluntary dismissal if the court intended to grant defendant’s motion. These conditional statements did not entitle plaintiffs to take a voluntary dismissal between the trial court’s announcement that […]
Domestic Relations – Separation Agreement – Military Pension – Specific Performance
The parties’ separation agreement establishes that the intention of the parties at the moment of its execution was that, in exchange for releasing any interest in other intangible property, the plaintiff-wife would be entitled to 15 percent of the defendant-husband’s monthly military retirement for the remainder of his life. Plaintiff performed her duties under the […]
Civil Practice – Relation Back – Voluntary Dismissal – Unrelated Plaintiff
Where the original, timely filed complaint mistakenly named as plaintiff an entity with no relationship to the cause of action, and where – after a voluntary dismissal and refiling – the true party in interest was substituted as plaintiff after the statute of limitations had expired, the substitution of the true plaintiff did not relate […]
Constitutional – Sovereign Immunity – Bar Closures – State of Emergency – COVID-19
The plaintiff-bar owners allege defendants violated their constitutional right to earn a living when the defendant-governor ordered their bars to close during the COVID-19 pandemic. Plaintiffs have stated direct claims under the N.C. Constitution for which they have no other adequate state remedy. Consequently, the doctrine of sovereign immunity does not bar plaintiffs’ claims. We […]
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Commentary
- Amotion sees resurgence after almost a decade
- The flip side of generative AI in law and how to address it
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- Ex-president, bar association have made their choice
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- Lawyers Weekly debuts new and improved web experience
- US Supreme Court bites back at parody’s use of the First Amendment
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- A Different Ode to Pro Bono Work
- A roadmap to attracting, developing, retaining great associates
