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Tag Archives: insufficient showing

Workers’ Compensation – Change of Condition – Insufficient Showing – Doctor’s Testimony (access required)

Wilhite v. Pike Electric, Inc. Although plaintiff’s doctor agreed with plaintiff’s counsel’s assertion that plaintiff was “100 percent” disabled, the doctor’s opinion on this point was not based solely upon plaintiff’s medical condition – which the doctor said was unchanged – or on the doctor’s medical expertise; rather, the doctor agreed with counsel’s assessment based on the doctor’s consideration of plaintiff’s “skill set and educational background.”

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Municipal – Zoning – Real Property – Value – Insufficient Showing – Cell Phone Tower (access required)

American Towers, Inc. v. Town of Morrisville In order to get a special use permit to erect a cell phone tower in the respondent-town, petitioner was required to show that the tower would not substantially injure the value of adjoining property. Petitioner’s real estate expert failed to make that showing; therefore, the superior court properly upheld the denial of petitioner’s application to erect a telecommunications tower.

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Attorneys – First Impression — Civil Practice – Discovery – Deposition – Opposing Counsel – Insufficient Showing – Subpoena Duces Tecum – Privilege (access required)

Blue Ridge Pediatric & Adolescent Medicine, Inc. v. First Colony Healthcare, LLC Where defendants have failed to show that (1) there are no other means to obtain the information they seek, (2) the information possessed by plaintiffs’ counsel is relevant and non-privileged, and (3) the information is critical to the issues at stake in this litigation, defendants are not entitled to depose plaintiffs’ counsel.

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Criminal Practice – Post-Conviction DNA Testing – Burden of Proof – Materiality – Insufficient Showing (access required)

State v. Foster When a defendant seeks post-conviction DNA testing, the burden is on the defendant to make the materiality showing required by G.S. § 15A-269(a)(1). Here, defendant’s motion stated only, “The ability to conduct the required DNA testing is material to the Defendant’s defense.” Where defendant has provided no other explanation of why DNA testing would be material to his defense, he has failed to establish a condition precedent to the trial court’s granting of his motion.

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Civil Practice – New Trial Motion – Recused Judge – Insufficient Showing – Domestic Relations – Equitable Distribution (access required)

Sisk v. Sisk A trial judge entered an equitable distribution order and then, after plaintiff moved for a new trial, recused himself. Once the trial judge recused himself, the new trial motion could not be heard by another trial judge; instead, this court must decide the motion.

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Domestic Relations – DVPO – Harassment – Insufficient Showing – Hiring PI – Late-Night Surveillance (access required)

Kennedy v. Morgan (Lawyers Weekly No. 12-07-0588, 12 pp.) (Donna S. Stroud, J.) Appealed from Guilford County District Court. (Margaret Sharpe, J.) N.C. App. Holding: Although plaintiff presented evidence that defendant had been abusive during and even after their marriage, defendant’s act of hiring a private investigative service to conduct surveillance in order to determine if plaintiff was co-habiting was not “knowing conduct … directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose.” G.S. § 14-277.3A(b)(2).

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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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Workers’ Compensation – Change of Condition – Insufficient Showing – Hypertension – Anxiety & Depression – 2005 Back Injury (access required)

Rollins v. Tyco Electronics Plaintiff’s only expert testimony came from a counselor who relied solely on plaintiff’s self-report to form her opinion that plaintiff’s current hypertension, anxiety and depression were causally related to his 2005 compensable back injury. Such evidence was insufficient, especially given that the counselor did not know that plaintiff’s hypertension pre-dated his compensable injury and that plaintiff was a long-time user of cannabis, which a medical doctor testified can cause anxiety and depression.

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