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Declaratory Judgment

Jun 4, 2014

Civil Practice – Appeals – Sovereign Immunity – Waiver – Declaratory Judgment – Landlord/Tenant – Commercial Lease

Can Am South, LLC v. State (Lawyers Weekly No. 14-07-0499, 20 pp.) (Robert C. Hunter, J.) Appealed from Wake County Superior Court (Donald Stephens, J.) N.C. App. Holding: Pursuant to N.C. R. Civ. P. 12(b)(2), defendants moved to dismiss plaintiff’s declaratory judgment claim for lack of personal jurisdiction on the basis of sovereign immunity. Pursuant […]

Apr 29, 2014

Taxation – Civil Practice – Appeals – Administrative – Declaratory Judgment Action

Gust v. North Carolina Department of Revenue (Lawyers Weekly No. 14-07-0374, 6 pp.) (Rick Elmore, J.) Appealed from Cleveland County Superior Court (Robert Sumner, J.) N.C. App. Holding: G.S. § 105-241.19 specifically prohibits a taxpayer from filing a declaratory judgment action to contest his tax liability; instead, a taxpayer may challenge the N.C. Department of […]

Oct 11, 2013

Insurance – Auto — Duty to Indemnify – Dealership Car – Tour Company Errand

National Interstate Insurance Co. v. Morgan & Sons Weekend Tours, Inc. At issue in this declaratory judgment case is whether a tour company’s auto insurance policy provides coverage for an accident that happened while defendant Morgan, who owns both the tour company and a car dealership, was using a car owned by the dealership to drive to the tour company to open the bus lot for an[...]

Sep 12, 2013

Intellectual Property – Trademark – Netherlands Flag – Antitrust – Noerr-Pennington Doctrine

RE/MAX LLC v. M.L. Jones & Associates, Ltd. Even if plaintiff’s trademark has become incontestable, it may still be canceled if it was obtained contrary to 15 U.S.C. § 1052(b), which prohibits registrations of foreign flags or their simulations. Defendants identify the similarities between plaintiff’s trademarks and the flag of the Netherlands’ red-over-white-over-blue horizont[...]

Feb 6, 2013

Real Property – Restrictive Covenants – Waiver – Civil Practice – Standing – Neighboring Landowners

McCrann v. Pinehurst, LLC The owners of land adjacent to Pinehurst’s Village Green lack standing to contest Pinehurst, LLC’s waiver of restrictions on use of the Village Green land by the land’s owners:

May 8, 2012

Labor & Employment – Wage & Hour Act – Incentive Plan – Payment Schedule – Tort/Negligence – Unjust Enrichment Claim – Civil Practice – Declaratory Judgment

Dulaney v. Inmar, Inc. Before Jan. 1, 2010, the defendant-employer gave the plaintiff-employee a copy of its “2010 Promotion Services Rebate and Fulfillment Services Sales and Renewal Incentive Plan.” According to the Plan, incentive payments were to be made approximately six weeks after the end of the quarter in which the qualifying sales were made; moreover, one had to be a Plan par[...]

Mar 21, 2012

Civil Practice – Declaratory Judgment – Mootness – Labor & Employment – Public Employees – Breach of Contract Allegation

Hindman v. Appalachian State University Where the Feb. 10, 2011 complaint sought only a declaratory judgment that defendants had breached the plaintiff-professors’ contracts by reducing their salaries by 0.5 percent for the 2008-09 academic year, defendants were entitled to summary judgment on mootness grounds.

Oct 11, 2011

Administrative – Prisons & Jails – APA – Council of State – Lethal Injection Protocol – First Impression — Declaratory Judgment

Conner v. North Carolina Council of State Even though the Council of State is subject to the Administrative Procedure Act, since the Department of Correction is exempt from the APA, when the Council of State reviews the DOC’s lethal injection protocol, the APA does not apply. We modify and affirm the superior court’s dismissal of the petition. Petitioners are DOC inmates who hav[...]

Aug 10, 2011

Real Property – Office Park Declaration – Stormwater Retention Pond Maintenance – Civil Practice – Declaratory Judgment – Summary Judgment — Continuance Motion

Beaches West Developments, Ltd. v. North Carolina Eye, Ear, Nose & Throat, P.A. Defendants produced an affidavit from an expert in landscape architecture forecasting testimony that the stormwater retention pond for the parties’ office park is in compliance with all city regulations and, to the extent required, with the customary standards of a Class A office park. Plaintiff, on the [...]

Jun 24, 2011

Tort/Negligence – Real Property – Trespass – Declaratory Judgment – Neighbors’ Fence – Across Property Line – Remedies – Injunction – Removal

Mathis v. Hoffman After her neighbors mistakenly built their fence on her property, defendant was not entitled to choose her remedy. It was within the trial court’s authority to enter an injunction allowing plaintiffs to move the fence to their own property at their expense. We affirm summary judgment for plaintiffs.

Apr 28, 2011

Civil Practice – Consent Judgment – Enforcement – Rule 70 Inapplicable – Declaratory Judgment – Real Property – Avigation Easement

Sampson County v. Parker Family Real Estate, LLC. (Lawyers Weekly No. 11-16-0438, 11 pp.) (Linda Stephens, J.) Appealed from Sampson County Superior Court. (Benjamin G. Alford, J.) N.C. App. Unpub. Click here for the full text of the opinion. Holding: In order to enforce the avigation easement plaintiffs obtained in the parties’ consent judgment, plaintiffs […]

Mar 8, 2011

Insured recovers on counterclaim for malicious prosecution over Wilson fire

Laurie Volpe was the owner of Cully’s Motorcross Park, Inc. Cully’s was originally the owner of a motorcross park in Florida. When Volpe and her husband, Louis Volpe, moved to North Carolina, Cully’s was incorporated in North Carolina and began purchasing, refurbishing and selling/renting homes in the historic district of Wilson. Laurie was the sole […]

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