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Tag Archives: first impression

Labor & Employment – Public Employees – Insufficient Findings — Personal Misconduct – Just Cause – Discipline – First Impression (access required)

Warren v. North Carolina Department of Crime Control & Public Safety The superior court purported to base its decision on the facts as found by the administrative law judge. However, the ALJ found that the Highway Patrol had failed to establish that petitioner drove a Patrol vehicle with any alcohol in his system, while the superior court found that petitioner consumed some amount of alcohol prior to driving.

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Criminal Practice – Civil Penalty – First Impression — No-Contact Order – Sexual Offenses – Constitutional (access required)

State v. Hunt A no-contact order entered pursuant to G.S. § 15A-1340.50 prohibits one convicted of a sexual offense from contacting his victim. The desire of the legislature to protect a citizen who has been victimized and is in fear of further contact from the defendant, who is part of a class of known recidivists, demonstrates an intent to create a civil, regulatory statute. Therefore, the statute does not violate N.C. art. XI, § 1, which limits criminal punishments to “death, imprisonment, fines, suspension of a jail or prison term with or without conditions, restitution, community service, restraints on liberty, work programs, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under this State.”

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Contract – Fishing Tournament – Rules Violation – First Impression — Fishing License – Disqualification – Civil Practice – Venue – Judges – Recusal Motion (access required)

Topp v. Big Rock Foundation, Inc. Although the plaintiff-contestants were warned not to let the lack of a fishing license jeopardize a $1,000,000 prize, their first mate entered the contest without renewing his fishing license. Since plaintiffs failed to show that their disqualification was the result of arbitrariness, fraud or collusion, the defendant-foundation’s decision stands.

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Corporate – Asset Purchase – de Facto Merger – First Impression – Insufficient Showing – Landlord/Tenant – Past Due Rent – Successor Liability – Mere Continuation (access required)

Lattimore & Associates, LLC v. Steaksauce, Inc. Even if N.C. law includes the de facto merger exception to the general rule against successor liability, the exception would not apply to this asset-purchase case. Plaintiff has not shown continuity of the seller-corporation’s management, physical location or business operations; plaintiff has not shown that the defendant-purchasers paid for the seller-corporation’s assets by an exchange of shares; plaintiff presents no evidence that the seller-corporation liquidated or dissolved itself following the transaction; and plaintiff has not shown that the purchasers assumed the liabilities and obligations “ordinarily necessary” for the uninterrupted continuation of the seller-corporation’s business operations.

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Trusts & Estates – Uniform Transfers to Minors Act – Accounting – Interest – First Impression — Attorney’s Fees – Speculative Investment (access required)

Belk v. Belk Where the Uniform Transfers to Minors Act is silent as to the contours of the accounting remedy provided for in G.S. § 33A-19(a) and (d), we hold that a trial court may award interest on funds wrongfully disbursed, representing the loss of appreciation on such funds.

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Insurance – Fire – Application Misrepresentations – Inspection Results – Real Property – Mortgages – First Impression – Bank as Mortgagee & Loss Payee (access required)

Colony Insurance Co. v. Peterson A separate agreement existed between the plaintiff-insurer and the defendant-bank as a mortgagee. Accordingly, even if the insurer may rescind its policy with the property owner (and thus the bank as a loss payee) pursuant to G.S. § 58-3-10 due to material misrepresentations in the insurance application, the bank’s rights as a mortgagee would survive.

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Banks & Banking – FIRREA – Exhaustion of Administrative Remedies – First Impression — FDIC Receivership – Purchase – Tort/Negligence — Real Property – Breach of Contract (access required)

Front Street Construction, LLC v. Colonial Bank, N.A. The Federal Deposit Insurance Corp. (FDIC), as receiver for failed bank Colonial Bank, N.A., entered into a purchase and assumption agreement (PAA) with Branch Banking and Trust Co. Some of plaintiffs’ claims against BB&T arose from acts or omissions by Colonial and were not addressed in the PAA. As to those claims, plaintiffs must exhaust their administrative remedies under the Financial Institutional Reform, Recovery and Enforcement Act (FIRREA) before they can seek judicial remedies.

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Banks & Banking – FIRREA – Exhaustion of Administrative Remedies – First Impression — FDIC Receivership – Purchase – Tort/Negligence — Real Property – Breach of Contract (access required)

Front Street Construction, LLC v. Colonial Bank, N.A. The Federal Deposit Insurance Corp. (FDIC), as receiver for failed bank Colonial Bank, N.A., entered into a purchase and assumption agreement (PAA) with Branch Banking and Trust Co. Some of plaintiffs’ claims against BB&T arose from acts or omissions by Colonial and were not addressed in the PAA. As to those claims, plaintiffs must exhaust their administrative remedies under the Financial Institutional Reform, Recovery and Enforcement Act (FIRREA) before they can seek judicial remedies.

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Real Property – Mortgages – Joint Tenancy – Severance – Tenancy in Common – First Impression (access required)

Countrywide Home Loans, Inc. v. Reed Judy Reed, her husband, and her mother bought property as joint tenants with right of survivorship; however, when the mother took out a mortgage on the property, the joint tenancy was severed, and a tenancy in common was created, without the right of survivorship.

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