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Failure to Prosecute

May 12, 2016

Civil Practice – Failure to Prosecute – Prejudice – Real Property – Lis Pendens

Cury v. Mitchell (Lawyers Weekly No. 012-106-16, 6 pp.) (Richard Dietz, J.) Appealed from Buncombe County Superior Court (Mark Powell, J.) N.C. App. Unpub. Holding: For five years after this court remanded for a determination of plaintiff’s constructive and resulting trust claims, the only action plaintiff took was to file a lis pendens, thereby encumbering […]

Jan 21, 2015

Domestic Relations — Equitable Distribution – Laches – Failure to Prosecute

Reardon v. Brown (Lawyers Weekly No. 15-16-0077, 9 pp.) (Linda McGee, Ch. J.) Appealed from Gaston County District Court (Ralph Gingles, J.) N.C. App. Unpub. Holding: When plaintiff finally tried to pursue her equitable distribution claim 13 years after the parties’ divorce, the trial court found that the delay itself constituted severe prejudice to defendant. […]

Aug 17, 2011

Domestic Relations – Civil Practice – Rule 41 Dismissal – Failure to Prosecute – Lesser Sanctions – Local Rules

McKoy v. McKoy The trial court dismissed defendant’s equitable distribution counterclaim under N.C. R. Civ. P. 41(b) and Rule 11 of the Wake County Family Court Rules, but the trial court failed to make findings of fact or conclusions of law indicating that it considered lesser sanctions. We vacate the trial court’s order dismissing defendant’s equitable distribution counterclaim[...]

Jan 4, 2011

Civil Practice – Failure to Prosecute – Real Property – Mortgages – Foreclosure – TRO – Lis Pendens

Dillahunt v. First Mount Vernon Industrial Loan Association. (Lawyers Weekly No. 11-16-0004, 25 pp.) (Martha A. Geer, J.) Appealed from Craven County Superior Court. (Benjamin G. Alford, J.) N.C. App. Unpub. Click here for the full text of the opinion. Holding: Plaintiffs filed suit in the wrong county in order to get an order to […]

Dec 22, 2010

Civil Practice – Rule 41(b) Dismissal – Failure to Prosecute – Prisoner – Attorneys – Legal Malpractice Claim

Cohen v. McLawhorn. (Lawyers Weekly No. 10-07-1214, 21 pp.) (Martha A. Geer, J.) Appealed from Pitt County Superior Court. (William C. Griffin Jr., J.) N.C. App. Click here for the full text of the opinion. Holding: Even though plaintiff was incarcerated, given that he had an attorney-in-fact, and given his failure to take any action […]

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