HUNTER, JR., ROBERT N., Judge. Defendant Alfred B. Cooper, Jr. ("Defendant") appeals from an order denying his motion to dismiss under Rule 12(b)(3) of the North Carolina Rules of Civil Procedure for improper venue. 1 Defendant contends that contractual language effective between the parties limits venue exclusively to Alamance County. Thus, because the instant action was filed in Wake County, Defendant contends that the trial court erred in denying his Rule 12(b)(3) motion. We disagree and...
STEELMAN, Judge. Where petitioner made a prima facie case that it was entitled to a special use permit to construct a cell tower and the city council's denial of petitioner's application was not supported by competent, material, and substantial evidence, the trial court erred by affirming the city council's decision. I. Factual and Procedural Background Blair Investors, LLC, (petitioner), a North Carolina limited liability corporation, leased a 100 square foot site in Roanoke Rapids to U....
DILLON, Judge. The Perquimans County Board of Education (the Board) appeals from an order of the superior court reversing the Board's decision to deny Vanessa B. Joyner (Petitioner) career status. For the following reasons, we affirm. I. Factual & Procedural Background In August 2008, Petitioner was employed by the Board to teach first grade at Perquimans Central School (PCS). After teaching first grade for two years, Petitioner spent the following two years as an Exceptional Children's (EC)...
HUNTER, ROBERT C., Judge. Richard Dean McCrea ("Richard"), individually and as trustee for the Richard Dean McCrea 2008 Children's Trust ("the trust"), Natalie Marie McCrea ("Natalie"), and THZ Holdings, LLC ("THZ") (collectively "appellants") appeal from judgment and order entered 10 September 2012 by Judge Edwin G. Wilson, Jr. in Mecklenburg County Superior Court. Appellants put forth interrelated issues on appeal regarding the trustee position of the trust and title of the trust property....
McGEE, Judge. Thomas C. Wetherington ("Petitioner") was employed as a trooper with the North Carolina State Highway Patrol ("Respondent") on 29 March 2009. A complaint was filed against Petitioner on 21 May 2009 with the Internal Affairs unit of Respondent, alleging that Petitioner had violated Respondent's Truthfulness policy. Respondent dismissed Petitioner on 4 August 2009 for violating the Truthfulness policy. Petitioner filed a petition for a contested case hearing in the Office of...
STEELMAN, Judge. Where defendants Ergon and Tucker failed to show that plaintiff unreasonably failed to mitigate his damages, the trial court correctly decided their motion for judgment notwithstanding the verdict. Where Ergon and Tucker failed to make a timely objection to the evidence now complained of, and based upon the evidence presented, the damages awarded by the jury to the plaintiff were not excessive; the trial court correctly denied their motion for a new trial. Finally, where the...
McGEE, Judge. KB Home Raleigh-Durham, Inc. ("Defendant") is a general contractor in the business of building homes. Defendant has contracted with many people over the years to build homes, including Mark Elliott, Tor Gabrielson, Michelle Gabrielson, Michihiro Kashima, and Yoko Kashima ("Plaintiffs"). According to Defendant, each homeowner who purchased a home directly from Defendant "entered into two separate written contracts with [Defendant]: a New Home Purchase Agreement ... and a New Home...
STEELMAN, Judge. Where plaintiff's complaint alleged that the conviction against her in district court was obtained through fraudulent or other unfair means, this allegation complied with the requirements of Myrick v. Cooley. Where plaintiff's complaint stated a claim for which relief could be granted, the trial court erred in granting defendant's motion to dismiss. Because we reverse the ruling of the trial court, we do not reach plaintiff's remaining arguments. I. Factual and Procedural...
GEER, Judge. Plaintiff Siu S. Tong appeals from an order granting judgment on the pleadings to defendants David Dunn, Timothy Krongard, Ed Masi, Sophia Wong, and Janet Wylie on Mr. Tong's claim for breach of fiduciary duty. Defendants contended and the trial court agreed that Mr. Tong's claim in this case was barred by res judicata because the claim in this case arose from the same set of operative facts as the claims in Mr. Tong's earlier employment action. We hold that the order is contrary...
GEER, Judge. Respondent mother appeals from the trial court's order terminating her parental rights to A.D.N. ("Andy"). 1 On appeal, respondent mother argues that the trial court lacked subject matter jurisdiction over the termination of parental rights ("TPR") proceeding because petitioner, Andy's paternal grandmother, lacked standing to file the TPR petition. We hold that the trial court properly concluded that Andy resided with petitioner for a continuous period of two years prior to the...
STROUD, Judge. Donald Podrebarac ("plaintiff") appeals from an order entered 29 November 2012 dismissing his malpractice complaint against Horack, Talley, Pharr, & Lowndes, P.A. and Gena Morris ("defendants") as barred by the statute of limitations. For the following reasons, we reverse. I. Background Plaintiff and Buntin Podrebarac were married in October 1987 and separated in December 2007. Plaintiff retained defendants and Perry, Bundy, Plyler, Long, & Cox, LLP ("Perry Bundy") to...
McGEE, Judge. T.R. Driscoll, Inc. ("Employer") is a company with a principal place of business in North Carolina. Employer intermittently sends its employees to work in other states, including Virginia. Employer joined the Carolinas Roofing and Sheet Metal Contractors Self-Insured Fund ("the Fund") in the early 1980s. Employer entered into an agreement with the Fund for workers' compensation insurance "coverage for North Carolina and South Carolina operations[.]" The Davis-Garvin Agency, Inc. (...
MARTIN, Chief Judge. Defendants Richard H. Green and Judy L. Green appeal from the entry of summary judgment in favor of plaintiff HomeTrust Bank awarding plaintiff a judgment against them in the amount of $1,441,000 plus interest, costs, and attorney's fees. The record established the following undisputed facts: in April 2007, Advantage Development Company, through its president, Richard H. Green, and its secretary, Judy L. Green, entered into a mortgage agreement with plaintiff. The...
McCULLOUGH, Judge. Plaintiff John Wm. Brown Co., Inc. ("JWBC") appeals from an order granting defendant State Employees' Credit Union's ("SECU") Motion to Approve and Enforce Settlement Agreement and Release. For the following reasons, we affirm. I. Background This case arises out of JWBC's service as the general contractor for the construction of the SECU branch office on Poole Road in Raleigh, an LEED project. JWBC and SECU entered into a Standard Form of Agreement Between Owner and...
McGEE, Judge. At all times relevant to this appeal, Highmark Properties, LLC ("Borrower") was a company involved in real estate development. Mitchell Blevins, Cynthia Blevins, Charles Williams, and Janice Williams ("Guarantors" and, together with Borrower, "Defendants"), were Borrower's members. High Point Bank and Trust Company ("Plaintiff") was a financial institution, with its principal place of business in Guilford County, North Carolina. Borrower obtained loans totaling $6,450,000.00 from...
STROUD, Judge. Plaintiff appeals an opinion and award of the North Carolina Industrial Commission denying "Plaintiff's request that the Commission enforce the provisions of the Mediated Settlement Agreement which relate to the funding by Defendants of a Medicare Set-Aside Account[.]" For the following reasons, we affirm in part and reverse in part. I. Background On 21 November 2012, the North Carolina Industrial Commission issued an opinion and award in this matter. The basic facts of the...
Case Reported Without Published Opinion Affirmed.
