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Tag Archives: Inapplicable

Civil Practice – Statute of Limitations – Federal Question Jurisdiction – State Court Action – Voluntary Dismissal Without Prejudice – Savings Provision – Inapplicable

United States ex rel. Martin Marietta Materials, Inc. v. DTC Engineers & Constructors, LLC Since the plaintiff-supplier’s claim against the defendant-contractor is under the Miller Act – a federal statute with its own statute of limitations – plaintiff’s voluntary dismissal of its state court action pursuant to N.C. R. Civ. P. 41(a) did not give plaintiff an extra year to file suit in federal court.

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Trusts & Estates – Wills – Real Property – Direction to Sell – Upset Bid Procedure – Inapplicable

Riggs v. Burns Since the testator’s will directed that his land be sold and the proceeds divided among his beneficiaries, the will vested title in the testator’s heirs – not the executrix – pending the sale. Therefore, G.S. § 28A-17-10 does not apply, and there was no requirement that the executrix’s private sale of the land be subject to the upset bid provisions of G.S. Chapter 1, Article 29A. We affirm judgment on the pleadings for defendants.

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Tort/Negligence – Wrongful Death – STCA – Public Duty Doctrine – Inapplicable – DOT – Eroded Highway

Ray v. N.C. Department of Transportation Where the decision to maintain the state’s roads in a safe condition is a duty of the defendant Department of Transportation and is not discretionary, and where no external injurious force is involved in this case, the public duty doctrine does not apply.

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Criminal Practice – Jury & Jurors – Judge’s Comments – Plain Error – Inapplicable

State v. Ross. Defendant asks this court to review for plain error remarks the trial judge made to the jury upon the judge's receipt of notes indicating the jury was deadlocked. Aside from an Allen instruction - which defendant does not challenge - the judge's remarks were not "jury instructions" subject to plain-error review. We find no prejudicial error in defendant's convictions of delivery of a counterfeit controlled substance and having attained the status of habitual felon.

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