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insufficient showing

Apr 7, 2017

Civil Practice – Involuntary Commitment – Danger to Self or Others – Insufficient Showing

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, delusional, grandiose,” neither the evidence nor the trial court’s findings – that respo[...]

Jun 14, 2013

Workers’ Compensation – Change of Condition – Insufficient Showing – Doctor’s Testimony

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 ba[...]

Sep 7, 2012

Municipal – Zoning – Real Property – Value – Insufficient Showing – Cell Phone Tower

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 applicat[...]

Aug 16, 2012

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

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 depos[...]

Aug 9, 2012

Criminal Practice – Post-Conviction DNA Testing – Burden of Proof – Materiality – 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 t[...]

Jul 19, 2012

Civil Practice – New Trial Motion – Recused Judge – Insufficient Showing – Domestic Relations – Equitable Distribution

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.

Jul 17, 2012

Workers’ Compensation – Causation – Credibility – Disability – 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.

Jun 6, 2012

Domestic Relations – DVPO – Harassment – Insufficient Showing – Hiring PI – Late-Night Surveillance

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[...]

Jun 5, 2012

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

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 [...]

May 31, 2012

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

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 pr[...]

Mar 13, 2012

Criminal Practice – Constitutional – Right to Counsel – Waiver – Knowing & Intelligent – Insufficient Showing

State v. Anderson Where our Court of Appeals held, Even though defendant executed a written waiver of counsel which was certified by the trial court, since the trial court failed to clarify the specific charges against defendant, to inform him of potential punishments, or explicitly to inform defendant that he could request court-appointed counsel, defendant has shown that the trial court[...]

Feb 15, 2012

Tort/Negligence – Workers’ Compensation — Woodson Claim – Wrongful Death — Insufficient Showing – Trench Worker — Pleasant Claim

Jackson v. ES&J Enterprises When defendants were laying pipe, their apparently unique policy required any workers in the trench to wait inside the pipe while machinery was being operated in the trench. Although this was not industry standard, plaintiff failed to show that it was intentionally undertaken with the knowledge that it was substantially certain to cause serious injury or de[...]

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