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4th Circuit: Sentencing argument didn’t breach plea deal
Where a defendant argued the government breached a plea agreement by moving for a sentence above the applicable Guidelines range, his argument was rejected. The plea agreement said nothing about […]
4th Circuit: Ministerial exception forecloses sex bias claim
In Billard v. Charlotte Catholic High School, where a Catholic school teacher was dismissed for planning to marry his same-sex partner, the 4th Circuit ruled that the ministerial exception, despite being initially waived, barred his claims because it involves significant institutional interests.
Waiver of revocation hearing also waived right to appeal
A defendant whose probation was revoked by a district court judge won’t be able to appeal that decision to superior court because he waived his right to a revocation […]
Criminal Practice – Right to Counsel – Waiver – Delay Tactics – Forfeiture
State v. Schumann (Lawyers Weekly No. 011-050-18, 22 pp.) (Robert Hunter Jr., J.) Appealed from Columbus County Superior Court (Douglas Sasser, J.) N.C. App. Holding: Although defendant complained that he […]
Criminal Practice – Constitutional – Right to Counsel – Waiver – Insufficient Colloquy
State v. Pena (Lawyers Weekly No. 011-395-17, 23 pp.) (Donna Stroud, J.) Appealed from Mecklenburg County Superior Court (Robert Sumner & Eric Levinson, JJ.) N.C. App. Holding: Where a hearing […]
Arbitration – Waiver – Litigation Expenses
Town of Belville v. Urban Smart Growth, LLC (Lawyers Weekly No. 011-060-17, 10 pp.) (Philip Berger Jr., J.) Appealed from Brunswick County Superior Court (Gary Trawick, J.) N.C. App. Holding: […]
Tort/Negligence – Constructive Fraud – Waiver – Duress – Contract – Partnership/Loan Conversion – Attorneys
Outer Banks Ventures, Inc. v. Tinkham (Lawyers Weekly No. 005-001-16, 14 pp.) (Stephani Humrickhouse, J.) E.B.N.C. Holding: Any alleged breach of fiduciary duty by the defendant-attorney would have occurred in […]
Civil Practice – Contempt – Burden of Proof – Waiver – Domestic Relations – Equitable Distribution – Car Loan
Moss v. Moss Where an assistant clerk of court – rather than a judicial official – entered the show cause order, plaintiff should have borne the burden of proving that defendant was in contempt. However, since defendant failed to object and acquiesced when the trial court asked her to show why she should not be held in contempt, defendant waived the right to complain about this proced[...]
Labor & Employment – Public Employees – Schools & School Boards – Unsuccessful Principal – Waiver
Butler v. Charlotte-Mecklenburg Board of Education A school board renewed a principal’s contract before it received the reviews and scores from her first contract term. The contract renewal was not a waiver of the board’s right to fire the principal based on her performance during her first contract term.
Civil Practice – Venue – Answer Allegation – Waiver – First Impression – CFAA
LendingTree, LLC v. Anderson Even though defendant’s answer alleged that venue was improper, since defendant (1) stipulated in the case management report that venue was proper, (2) did not object to the conclusion in the case management order that venue was proper, and (3) waited three years after filing his answer – while continuing to participate in this litigation – before pressi[...]
Domestic Relations – Parent & Child – Termination of Parental Rights – Right to Counsel – Waiver – Guardian ad Litem’s Role
In re P.D.R. Our Court of Appeals applied G.S. § 15A-1242 to find that a trial court had abused its discretion by allowing the respondent in a termination-of-parental-rights (TPR) proceeding to waive her right to counsel. Section 15A-1242 applies in criminal proceedings and has no application in TPR proceedings.
Criminal – Sentencing – Appeals – Guilty Plea – ‘Any Sentence’ – Waiver
U.S. v. Thornsbury A convicted felon pleading guilty to possession of ammunition, who waived his right to appeal “any sentence,” cannot seek to have his sentence on the firearm charge reduced in light of his assistance to the government in prosecuting an unrelated case, and the 4th Circuit dismisses this appeal of the district court’s denial of the government’s motion for a senten[...]
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