In re Smith (Lawyers Weekly No. 012-065-17, 7 pp.) (Douglas McCullough, J.) Appealed from Mecklenburg County District Court (Kimberly Best-Staton, J.) N.C. App. Unpub. Holding: Although respondent was diagnosed with bipolar disorder “currently manic and psychotic, hostile, yelling, intrusive, paranoid, ...

Tagged with: insufficient showing

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.”

Tagged with: insufficient showing

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.

Tagged with: Cell Phone Tower insufficient showing Municipal Real Property Zoning

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.

Tagged with: Attorneys Civil Practice first impression insufficient showing

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.

Tagged with: burden of proof Criminal Practice insufficient showing

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.

Tagged with: Civil Practice Domestic Relations equitable distribution insufficient showing

Hutchens v. Lee Where there were differences in the histories plaintiff gave to the two doctors who testified, it was up to the Industrial Commission to choose which doctor to believe. We may not second-guess the Commission on this point.

Tagged with: Causation credibility disability insufficient showing Workers Compensation

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).

Tagged with: Domestic Relations DVPO Harassment insufficient showing

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.

Tagged with: Asset Purchase Corporate first impression insufficient showing Landlord/Tenant

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.

Tagged with: insufficient showing Workers Compensation