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Aug 8, 2012

Contract – Statute of Frauds – Lease – Damages – Due Dates & Cure Provision

Plasma Centers of America, LLC v. Talecris Plasma Resources, Inc. The parties’ contract plainly states that no rights and duties were created other than those expressly stated in the contract. Nothing in the contract explicitly – or even implicitly – states that plaintiff will assign its leases to defendant. Therefore, the trial court correctly concluded that oral modification of th[...]

Jun 13, 2012

Insurance – Commercial Marine Liability – Duty to Defend & Indemnify – Civil Practice – Pleadings Amendment – Underlying Lawsuit – Damages

National Union Fire Insurance Co. of Pittsburgh, Pa. v. Intercoastal Diving, Inc. Even though the complaint in the underlying lawsuit against the defendant-contractor only alleges damages to the bulkhead built by the contractor, the contractor recently filed affidavits indicating that the plaintiffs in the underlying lawsuit are also seeking damages for plumbing pipes and floating docks t[...]

Jun 12, 2012

Attorneys – Tort/Negligence – Legal Malpractice – Standard of Care – Bankruptcy – Damages

Miller v. Orcutt The standard of care for a bankruptcy attorney is the same in the Western District of North Carolina as it is in the Eastern District of North Carolina; therefore, the plaintiff-clients could present the testimony of a bankruptcy attorney from the Western District to establish the standard of care in a legal malpractice case against a bankruptcy attorney in the Eastern Di[...]

May 21, 2012

Labor & Employment – Public Employees — Settlement Agreement – Breach of Contract Claim – Damages – Job Reclassification

Pickney v. Department of Transportation Even though the parties’ settlement agreement provided that plaintiff could “request a job reallocation or pay grade increase” and that defendant would “cooperate with such a request,” the settlement agreement did not provide plaintiff with any guarantee that he would actually receive a job reallocation or pay grade increase upon request. [...]

May 1, 2012

Tort/Negligence – Wrongful Death – Products Liability – TASER – Contributory Negligence Unavailable – Damages

Fontenot v. TASER International, Inc. (Lawyers Weekly No. 12-04-0464, 35 pp.) (Robert J. Conrad Jr., Ch.J.) 3:10-cv-125;W.D.N.C. Holding: Where plaintiff’s decedent never “used” the taser that killed him, the defendant-manufacturer was not entitled to a defense of contributory negligence. Defendant’s motions for judgment notwithstanding the verdict and a new trial are denied. Defendant�[...]

Mar 29, 2012

Contract – Breach – Damages – Interior Design – Change Orders

Diane K. Troum, Inc. v. Amini Innovation Corp. The parties’ original showroom design contract required defendant to pay plaintiff $20,000 plus purchases, administrative costs and “hours in excess of ten [to be] billed at $15.00 or $20.00 per hour for a cap of $1,000.00. Variance in rate depends on skill level of personnel.” After defendant requested additional design services, the c[...]

Mar 15, 2012

Tort/Negligence – Conversion – Damages – Unfair Trade Practices – Branch Office Takeover

Knight’s Medical Corp. v. Pickett A brother hired his sister to start up a branch office – intended to be a franchise, eventually – of his durable medical equipment business. Years later, the brother fired the sister; despite a non-compete agreement, the sister started running her own durable medical equipment business from the branch office location. The brother’s evidence of wha[...]

Mar 15, 2012

Contract – Inter-Corporate Liability Doctrine – Car Dealership & Finance Company – Damages – Unfair Trade Practices – Treble Damages – Prejudgment Interest – Attorney’s Fees

Hanes v. Darar Where (1) defendant Darar was the owner and president of both corporate defendants; (2) both businesses shared officers, agents, business locations and phone numbers; and (3) the two corporations had a “complimentary” nature (a used car dealership and the company that financed customers’ purchases of the dealership’s cars), the trial court could apply the inter-cor[...]

Feb 24, 2012

Tort/Negligence – STCA – Damages – Companion Dog – Veterinary Expenses & Replacement Cost

Shera v. N.C. State University Veterinary Teaching Hospital Plaintiffs brought their Jack Russell terrier to defendant for treatment, and defendant’s negligence led to the dog’s death. Following the law of this state, the Industrial Commission correctly limited plaintiffs’ damages to the cost of the ill-fated veterinary treatment and the cost to buy another Jack Russell.

Feb 24, 2012

Tort/Negligence – Defamation – Performer’s DVD – Edited Arrest Recording – Appropriation – Unfair Trade Practices – Civil Practice – Discovery – Admissions – Damages

Nguyen v. Taylor By failing to respond to plaintiffs’ request for admissions, defendant Taylor admitted (1) that he defamed plaintiffs by placing on a DVD a doctored recording that made it appear - falsely - that Taylor was wrongfully arrested and (2) he made more than $10 million from sales of the DVD.

Feb 17, 2012

Landlord/Tenant – Residential Lease – Uninhabitable Apartment – Damages – Rent Abatement

REMI ex rel. Izquierdo v. Tyrone Even though the defendant-tenant contended that she and her children developed health problems due to the black mold infestation in their apartment, her testimony and medical bills were insufficient to prove that the medical bills resulted from the black mold infestation. Expert medical evidence was required; without it, the trial court should not have awa[...]

Feb 16, 2012

Labor & Employment – Breach of Contract – Damages – Salary – Civil Practice – Pleadings – Supplementation – Relation Back

Panos v. Timco Engine Center, Inc. The parties’ employment contract provided that, if defendant fired plaintiff without cause, defendant would be required to pay plaintiff’s salary for a year following his termination. When plaintiff filed his complaint, only three months had passed. Even though more than three years had elapsed when plaintiff moved to amend his complaint to seek the [...]

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