ERVIN, Judge. Plaintiff James Blackburn appeals from the trial court's order granting summary judgment in favor of Defendants. On appeal, Plaintiff contends that the trial court erred by converting Defendants' dismissal motion to one for summary judgment and by failing to conclude that Plaintiff had stated a claim for common law obstruction of justice in his complaint. After careful consideration of Plaintiff's arguments in light of the record and the applicable law, we conclude that the trial...
JACKSON, Judge. Adventure Holdings, LLC, ("Adventure") and 3311 Capital Boulevard, LLC, ("Capital") (collectively "defendants") appeal the trial court's 4 February 2009 order denying their motion to dismiss based upon improper venue. For the reasons stated herein, we affirm in part and remand. Adventure is a foreign limited liability company with its principal office in Jacksonville, Florida. Capital is a North Carolina limited liability company with its principal office in Raleigh, North...
HUNTER, ROBERT C., Judge. Charles Benjamin Paterson ("defendant") appeals from his convictions of speeding and driving while impaired. Defendant argues that his waiver of counsel was invalid because his waiver of counsel form was incomplete and the trial court erred in failing to conduct an adequate inquiry pursuant to N.C. Gen. Stat. 15A-1242 (2009). After careful review, we find no error. Background Defendant was charged in February 2008 with speeding at 59 miles per hour in a 35 mile...
BRYANT, Judge. Where the trial court's findings of fact in a bench trial are supported by competent evidence, they will be affirmed, even if there is contrary evidence in the record. Where a trial court's denial of a motion for withdrawal or amendment of admissions under Rule 36 of the North Carolina Rules of Civil Procedure was the result of a reasoned decision, there was no abuse of discretion. In making such a discretionary decision, the trial court is free to consider the credibility of...
ERVIN, Judge. Defendant Carlos Hernandez 1 appeals from judgments entered based upon his convictions for assault with a deadly weapon with intent to kill inflicting serious injury, attempted first degree murder, and armed robbery. On appeal, Defendant challenges the trial court's decision to deny his motions to suppress evidence seized during a 3 January 2007 search of a pickup truck in which he was riding in New Jersey. After careful consideration of Defendant's challenges to the trial court'...
STROUD, Judge. Defendants appeal a trial court order denying their amended motion to compel arbitration and granting plaintiff's motion to dismiss defendants' claim for arbitration. As we conclude that there is no valid arbitration agreement between the parties, we affirm. I. Background On 20 November 2008, plaintiff filed a complaint against defendants for violation of statutory duties and wrongful death, negligence and wrongful death, and corporate negligence arising out of the medical...
JACKSON, Judge. The town of Oak Island, North Carolina ("Town") appeals the 23 October 2008 order enjoining it from developing the end of a public street, imposing a monetary sanction, and awarding attorney's fees. For the reasons stated herein, we reverse and remand. Theodore D. Barris and Carol P. Barris ("appellees") are residents of Oak Island, North Carolina, and owners of a non-exclusive easement for purposes of ingress, egress, and regress. Appellees' property is located adjacent to...
JACKSON, Judge. Defendant Simply Fashion Stores, Ltd. ("Simply Fashion") appeals the trial court's 22 June 2009 order that determined nine legal issues within a condemnation suit by Mecklenburg County ("the county"). For the reasons stated herein, we affirm. On 8 December 2000, Simply Fashion entered into a lease agreement ("original lease") with Freedom Mall Partners ("FMP") for a period of five years with an option to extend the lease for up to two additional periods of five years each....
ERVIN, Judge. Plaintiffs appeal from an Opinion and Award entered by Chair Pamela T. Young and concurred in by Commissioners Dianne C. Sellers and Christopher Scott denying their request for workers' compensation benefits based on a determination that Plaintiffs had failed to establish that they contracted an occupational disease while working for Defendant Moore County. On appeal, Plaintiffs contend that the Commission failed to comply with the mandate issued by this Court in deciding a...
McGEE, Judge. Charles N. Stedman (the Trustee) was trustee on a deed of trust executed by Vogler Realty, Inc. (the Mortgagor-Grantor) and J.B. Lee & Company, to a parcel of land in Burlington. The Trustee, acting both as Trustee and the Trustee's Attorney, filed a foreclosure proceeding under power of sale as set forth in the deed of trust, on 20 March 2009. The Alamance County Clerk of Superior Court (the Clerk) conducted a hearing at which the Mortgagor-Grantor appeared, admitted its default,...
BEASLEY, Judge. Roger P. Edwards, Jr. and Amanda M. Edwards (Plaintiffs) appeal from the trial court's order denying their claim for trespass and ruling that Terrence G. Hill and Linda Lee Hill (Defendants) have an easement over that portion of Plaintiffs' property where the contested use was taking place. For the following reasons, we affirm. The parties to this action own adjacent properties, both conveyed out of a larger tract, in Cleveland County, North Carolina. Plaintiffs' property...
HUNTER, JR., ROBERT N., Judge. Larry Mackey ("defendant") appeals his convictions for three counts of discharging a weapon into occupied property and one count of assault with a deadly weapon. On appeal, defendant contends that the trial court erred by permitting a plea agreement to constitute proper notice of the State's intention to seek an aggravated sentence range and by denying his motion to suppress evidence based on his contention that the arresting officer exceeded the scope of a...
BEASLEY, Judge. Plaintiff appeals from an order granting the AAC Defendants' motion for summary judgment. For the reasons stated herein, we conclude that the trial court did indeed erroneously grant the AAC Defendants' motion for summary judgment and we reverse. Plaintiff, Hilmar Leiber, is a German national who at times relevant to this action, resided in Germany. While living in Germany Plaintiff met fellow German national, Wolfram Count von Spreti. During their initial meeting, Plaintiff...
JACKSON, Judge. Linda Daniel ("defendant") appeals her 23 April 2009 conviction for driving while impaired based upon the 18 December 2008 denial of her motion to dismiss the charge. For the reasons discussed herein, we affirm. At approximately 8:26 p.m. on 29 December 2007, Charlotte-Mecklenburg Police Officer A.L. Holt ("Officer Holt") observed a red GMC Jimmy ("the car") swerve outside of the appropriate travel lane multiple times. It was later determined that defendant was the driver of...
JACKSON, Judge. Antonio Lamont Baker ("defendant") appeals his 17 September 2009 conviction for carrying a concealed gun and possession of a firearm by a felon and his sentence of imprisonment. For the reasons stated herein, we reverse and remand with instructions. During the evening of 23 October 2008 Officer Mike Moseley ("Officer Moseley"), a seven-year veteran of the Roanoke Rapids Police Department ("RRPD"), was on duty and conducting routine patrol. Officer Moseley and other officers...
STEPHENS, Judge. Facts On 11 April 2008, Plaintiff Lisa Sanderson Rabon was involved in a collision with a tractor-trailer owned by Defendant Keystone Freight Corporation ("Defendant Keystone") and operated by Defendant Fay Elizabeth Hopkins ("Defendant Hopkins"). On 12 June 2008, Plaintiff filed a complaint against Defendants in Guilford County Superior Court, setting forth claims for relief based on the alleged negligence of Defendant Hopkins, imputed negligence of Defendant Keystone...
STEELMAN, Judge. Where the State introduced substantial evidence that defendant fired the shot that killed Derek Morris and that defendant acted with malice, premeditation and deliberation, the trial court properly denied defendant's motion to dismiss the charge of first-degree murder. The trial court did not abuse its discretion in allowing Detective Rothrock to give lay opinion testimony pursuant to Rule 701 of the North Carolina Rules of Evidence concerning the calibers of bullets recovered...
JACKSON, Judge. Village Development Group, Inc. ("Village Development") and Robert L. Gore, Jr., ("Gore") appeal from 20 October 2009 orders granting summary judgment in favor of Callahan & Rice Insurance Group, Inc. ("Callahan") and Assurance Company of America, Inc. ("Assurance") related to Village Development's law suit to recover $87,000.00 from Callahan and Assurance pursuant to a builder's risk insurance policy. For the reasons stated herein, we affirm. Village Development is a North...
JACKSON, Judge. American Eagle Airlines, Inc. ("defendant") appeals from orders entered on 3 June and 5 November 2009 denying defendant's motion for judgment notwithstanding the verdict ("JNOV") and alternative motion for new trial made after entry of judgment upon a jury verdict in favor of Lamez Williams ("plaintiff") in the amount of $232,000.00. For the reasons stated herein, we vacate the judgment of the trial court and remand. Defendant is a Delaware corporation engaged in the business...
STEELMAN, Judge. Where the State presented substantial evidence of an agreement for defendant to discharge a firearm at an individual standing in front of the doors to an occupied gymnasium and there was a substantial likelihood that the bullets would enter or strike the building, the trial court did not err by denying defendant's motion to dismiss the charge of conspiracy to discharge a firearm into occupied property. Where the trial court made a determination pursuant to N.C. Gen.Stat. 14-...
