MARTIN, Chief Judge. Plaintiff William C. Porter ("husband") appeals from the trial court's 17 February 2011 equitable distribution order. We vacate the order and remand for additional proceedings consistent with this opinion. Husband and defendant Nell B. Porter ("wife") were married on 28 April 1968; no children were born of the marriage. On 29 March 1988, the parties separated and signed a Separation Agreement and Property Settlement ("the Agreement"). Sometime after this separation, the...
STROUD, Judge. Gregory Scott Miller, Sarah R. Miller, and Colie W. Miller, Jr. (referred to collectively as "plaintiffs") appeal and Roger Russell and Linda Russell ("defendants") cross appeal from a trial court's order granting partial summary judgment in favor of plaintiffs and partial summary judgment in favor of defendants. For the foregoing reasons, we affirm in part and reverse in part the trial court's order. I. Background On 23 July 2010, plaintiffs filed a complaint against...
STROUD, Judge. David Wayne Clowers ("defendant") appeals from a conviction for driving while impaired. For the following reasons, we find no error in defendant's trial. I. Background On 21 September 2008, defendant was charged by a uniform citation in Raleigh, North Carolina with driving while "subject to an impairing substance." Following his conviction in District Court, Wake County, defendant appealed to Superior Court. Defendant was tried on this charge at the 31 August 2010 Criminal...
HUNTER, JR., ROBERT N., Judge. This controversy centers upon the sale of a contract labor staffing business and the alleged breach of a non-compete clause in the asset sale agreement. The purchaser of the business, Phelps Staffing, LLC ("Plaintiff"), appeals the trial court's order and memorandum of decision and judgment denying Plaintiff's claims for relief against six named defendants, including, inter alia, the seller of the business, Sheila Phelps, and her husband, Charles Phelps....
HUNTER, JR., ROBERT N., Judge. Peter Edward Yount ("Defendant") appeals the trial court's order denying his motion to dismiss and denying his motion for summary judgment. On appeal, Defendant contends the trial court erred by (1) exercising subject matter jurisdiction over this matter, as Plaintiffs' remedy is limited to relief under the Workers' Compensation Act and (2) denying Defendant's motion for summary judgment because even if the trial court's jurisdiction was proper, Defendant's...
ELMORE, Judge. On 14 November 2007, Mark W. White (plaintiff) filed a libel suit against Robert J. Trew (defendant) alleging that defendant had published factually false and inaccurate information about plaintiff in plaintiff's "annual review." Defendant filed a motion to dismiss the complaint, which was denied on 22 December 2010. Defendant appeals, alleging that sovereign immunity shields him from personal liability and that a required element of the libel claim has not been met. After...
HUNTER, JR., ROBERT N., Judge. Plaintiffs appeal from the 13 July 2010 Order of the North Carolina Industrial Commission, which held that the public duty doctrine applied to bar Plaintiffs' claims and that those claims were therefore dismissed under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Plaintiffs argue that the public duty doctrine does not apply and that the Full Commission erred in dismissing their case. We agree. I. Factual & Procedural Background On 31 August...
GEER, Judge. Plaintiff Betty Gholston, on her own behalf and as guardian for Tyson Davis, appeals from the trial court's order granting summary judgment to defendant, Cumberland County Board of Education ("the Board"), in this premises liability action. Tyson Davis, who was six years old at the time, was severely and tragically injured when he fell through bleachers located on the premises of the Board's Seventy-First High School. Because the Board presented evidence that it was not negligent—...
STEPHENS, Judge. This appeal arises from a car accident which occurred on 25 November 2008 near Shelby. On that date, the car in which seventy-two-year-old Delbert Rikard and his seventy-year-old wife, Carolyn (collectively, "the Rikards"), were traveling was struck head-on by a car owned by Martha Bennett Allen and driven by Bristol Michelle Leonhardt. The Rikards were seriously injured and endured lengthy hospitalizations, incurring damages in excess of the available liability limits of...
MARTIN, Chief Judge. In October 2006, the Harlton Tate McKee Revocable Trust ("McKee Trust") sold certain real property in Orange County to Hillsborough Residential Associates ("Hillsborough"). The deed, recorded on 4 October 2006, mistakenly described the estate conveyed as "one-half fee simple interest" in the property rather than the entire undivided fee simple interest contemplated by both parties. In February 2007, Colonial Bank made a construction loan in the amount of $14 million to...
STEPHENS, Judge. The appeals by The VUE-Charlotte, LLC and The VUE North Carolina, LLC (collectively, "The VUE"), who are Plaintiff-appellants in 11-594 and Defendant-appellants in 11-595, raise identical issues of law. 1 Therefore, we have consolidated the appeals for decision pursuant to Rule 40 of the North Carolina Rules of Appellate Procedure. N.C. R.App. P. 40. The appeals arise from The VUE's claims before the trial court that Mary G. Sherman and Richard G. Sherman, Defendant-...
HUNTER, JR., ROBERT N., Judge. U.S. Bank, National Association, as Trustee, c/o Wells Fargo Bank, N.A. ("Petitioner") appeals the trial court's order dismissing foreclosure proceedings against Respondent Tonya R. Bass. Petitioner assigns error to the trial court's determination that Petitioner is not the legal holder of a promissory note executed by Respondent and therefore lacks authorization to foreclose on Respondent's property securing the note under a deed of trust. After careful review,...
HUNTER, JR., ROBERT N., Judge. Southern Seeding Service, Inc. ("Plaintiff") appeals the trial court's dismissal of its breach of contract claim against W.C. English, Inc. ("English") and its claim for damages against Liberty Mutual Insurance Company ("Liberty Mutual") and Travelers Casualty & Surety Company of America ("Travelers Casualty") (collectively, "the Sureties"). Plaintiff also appeals the trial court's order denying its motion to amend judgment and motion for a new trial. Plaintiff...
THIGPEN, Judge. Respondent Carver Pond I Limited Partnership ("Carver Pond") appeals from the trial court's order authorizing James Trachtman to act as substitute trustee and to proceed with foreclosure under a power of sale. We must determine whether the trial court erred by finding that Bank of America, National Association ("Bank of America") is the holder of the debt and that the promissory note was in default. Because we conclude the trial court's findings of fact are supported by...
ERVIN, Judge. Plaintiffs Jerome E. Williams, Jr., M.D.; Jerome E. Williams, Jr., M.D., Consulting LLC; and Adelle A. Williams, M.D., appeal from orders granting summary judgment in favor of Defendant Fifth Third Bank with respect to Plaintiffs' claims against Defendant and Defendant's breach of contract claim against Plaintiffs and taxing the costs against Plaintiffs. On appeal, Plaintiffs contend that the record discloses the existence of genuine issues of material fact relating to their...
CALABRIA, Judge. J.T. Russell and Sons, Inc. ("plaintiff") appeal from a judgment entered upon a jury verdict finding that plaintiff breached a contract with Silver Birch Pond, L.L.C. ("defendant") and requiring plaintiff to pay $370,765.82 for this breach. We find no error in part and award plaintiff a new trial on the issue of damages. I. Background Plaintiff is an asphalt paving contractor located in Albemarle, North Carolina. Defendant is a real estate developer. On 14 December 2007,...
BEASLEY, Judge. Defendant appeals from the trial court's equitable distribution order entered 1 October 2009 and its order entered 20 May 2010, awarding Defendant alimony and dismissing her counterclaim for attorney's fees. We remand for further findings. Plaintiff and Defendant were married on 22 February 1975 and had three children before separating on 26 July 2007. Shortly after separating, Plaintiff filed a complaint on 1 November 2007 for equitable distribution, possession of certain...
BEASLEY, Judge. Defendant appeals the trial court's alimony order entered 20 May 2010, awarding Defendant alimony and dismissing her counterclaim for attorney's fees. Plaintiff and Defendant were married on 22 February 1975 and separated on 26 July 2007. On 1 November 2007, Plaintiff filed a complaint requesting, inter alia, equitable distribution. On 25 January 2008, Defendant filed an answer and a counterclaim that included a cause of action for permanent alimony. After the 22 February...
CALABRIA, Judge. Reynolds Construction Company, Inc. ("RCC") and Leroy Reynolds ("Reynolds") (collectively "defendants") appeal from the trial court's order denying defendants' motion to compel arbitration of claims brought against them by Emmanuel African Methodist Episcopal Church ("plaintiff"). We reverse and remand. I. Background In November 2006, plaintiff entered into a contract with RCC whereby RCC would act as general contractor for the construction of plaintiff's "New Sanctuary &...
STEELMAN, Judge. Where there was no prior award by the Commission of disability relating to plaintiff's alleged myofascial pain syndrome and fibromyalgia and defendants' lack of any admission relating thereto, we hold that plaintiff was not entitled to a presumption of continuing disability. Where there was competent evidence to support the trial court's finding that plaintiff's alleged fibromyalgia and myofascial pain syndrome were psychologically induced, the trial court did not err in...
