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Tag Archives: Statute of Limitations

Tort/Negligence – Wrongful Death — Medical Malpractice – 9(j) Certification – Statute of Limitations—Expert Witness – First Impression – Partial Dismissal (access required)

Estate of Wooden v. Hillcrest Convalescent Center, Inc. Where a trial court grants a motion to dismiss pursuant to Rule 9(j) requirement s for expert testimony in a medical malpractice case, the court must include in that order its findings of fact and conclusions of law to support its action. What’s more, the trial court need not dismiss in its entirety a medmal complaint only partially in compliance with 9(j); rather, the trial court may grant partial summary judgment.

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Tort/Negligence – Alienation of Affections – Mother & Daughter – Civil Conspiracy – Unfair Trade Practices – Emotional Distress – Civil Practice – Statute of Limitations – Rule 11 (access required)

Rushing v. Barron Since North Carolina does not recognize alienation of affection for any relationship other than that of spouses, plaintiff cannot make out a civil conspiracy claim by alleging that her father and brother conspired to alienate her mother’s affection and to convince her mother to exclude plaintiff from inheritance.

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Tort/Negligence – Professional Negligence – Real Property – Appraisals – Justifiable Reliance – Civil Practice – Statute of Limitations (access required)

Cabrera v. Hensley Since plaintiffs had already contracted to buy the lots at issue before the defendant-appraisers appraised the lots, plaintiffs could not have relied on the appraisals in obligating themselves to buy the lots.

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

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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Civil Practice – Statute of Limitations – Tort/Negligence – Conversion Claim – Accrual Date – Judgment Debtor – RICO – Voluntary Dismissal – Bad Faith (access required)

Eubank v. Van-Riel A New York attorney had a $100,000+ judgment against plaintiff. Plaintiff’s state-law claims against defendants arose when plaintiff learned that defendants had paid the New York attorney $30,000 that defendants owed to plaintiff. Although the New York attorney temporarily returned the funds to defendants in order to complete the steps necessary to comply with New York law, this did not toll the statute of limitations.

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Contract – Burial Plot Purchase – Resale to Another – Civil Practice – Statute of Limitations – Tort/Negligence (access required)

Hardin v. York Memorial Park In 1993, when her husband died, plaintiffs’ decedent bought three burial plots from defendants — one for her husband, one for herself, and one for another family member. Where defendants resold one of the plots to a stranger in 1993, and where plaintiffs originally filed suit on Nov. 9, 2006, their breach of contract claim as to that plot is time-barred. However, where the complaint does not allege the date on which the third plot was resold to a stranger, plaintiffs’ breach of contract claim as to the third plot is not barred by the statute of limitations.

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Consumer Protection – ‘Improper Fees’ – Civil Practice – Statute of Limitations – Putative Class Action (access required)

Delebreau v. Bayview Loan Servicing LLC A West Virginia consumer credit statute’s one-year statute of limitations, which runs from the “due date of the last scheduled payment of the agreement,” started on the date the lender accelerated the borrower’s mortgage loan, not on the 2030 loan maturity date designated in the loan documents, and the 4th Circuit upholds the district court’s dismissal of the putative class claim under W.Va. Code § 46A-1-101.

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Civil Practice – Statute of Limitations – Pleadings – Amendment – Relation Back – Breach of Contract (access required)

Kearney v. Barker Plaintiff made it clear that his original complaint was intended to sue only the father, Phillip Junior Barker, and not the son, Phillip Renard Barker. After the statute of limitations had run, plaintiff filed an amended complaint adding the son as a defendant.

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Tort/Negligence – Breach of Contract – Civil Practice – Statute of Limitations – Personal Jurisdiction – Corporate Subsidiary — Fraud – Unfair Trade Practices — Cemetery (access required)

Birtha v. Stonemor, North Carolina, LLC Plaintiffs allege that defendants misplaced their deceased loved ones’ headstones and/or remains. Plaintiffs have cited no authority to suggest that these alleged acts amount to a continually recurring violation as opposed to the continued ill effects from an original violation; therefore, the continuing wrong doctrine does not apply to toll the statute of limitations.

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Civil Practice – Statute of Limitations – Real Property — Mortgages – Foreclosure – Deficiency Judgment – Consent to Jurisdiction (access required)

RBC Bank (USA) v. Chowdhury Even though defendant agreed not to contest jurisdiction in this action, the statute of limitations is not a jurisdictional issue. Where plaintiff waited more than one year to file this deficiency action, it is time-barred.

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