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North Carolina Case Law Update September 16-17, 2016

This update provides a summary of the latest case developments in North Carolina for the years 2015/2016, including highlights from the North Carolina Supreme Court and Court of Appeals. Topics covered include offset defense to guarantors, proof of ouster of tenant in common, inverse condemnation under the Map Act, Daubert jurisdiction for expert testimony, and more.

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North Carolina Case Law Update September 16-17, 2016

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  1. North Carolina Case Law Update September 16-17, 2016

  2. CaseLaw Update Case Developments, 2015/2016

  3. 2015/2016 NC Case Law Update • North Carolina Supreme Court • High Point B&T v Highmark Props., LLC10 • G.S. Sec. 45-21.36 Offset Defense to Guarantors • Discretionary review • COA Appeal raised less than a year from prior reported case

  4. 2015/2016 NC Case Law Update • High Point B&T v Highmark Props., LLC4 • COA Distinguished right when borrower a party or not • Borrower was voluntarily dismissed then rejoined • COA: G’or not entitled, but Borrowers found not liable by jury • Supreme Court Cited Virginia Trust Co. v. Dunlop (1938)

  5. 2015/2016 NC Case Law Update • Atlantic Coast Props., Inc. v. Saunders 6 • Proof of Ouster of Tenant in Common • Summary Judgment Question • Ancestor died 1920’s - one heir remained home • Rule: 20 years of possession = presumed ouster • Evidence - Remaining family acknowledged rights • “...reasonable jury could conclude ...”

  6. 2014/2015 NC Case Law Update • Kirby, et al v NCDOT 8 • Map Act Triggers Inverse Condemnation • Constitutes a taking • Statute of limitations two years... ....from completion of project!

  7. 2014/2015 NC Case Law Update • State v. McGrady8 • North Carolina is a Daubert Jurisdiction • Federal Rules of Evidence – Experts: • qualified by knowledge, skill, experience, training, or education may testify if: • expertise helps trier of fact understand evidence or determine facts in issue; • testimony is based on sufficient facts or data;

  8. 2014/2015 NC Case Law Update • State v. McGrady 8 • North Carolina is a Daubert Jurisdiction • Federal Rules of Evidence – Experts: • testimony is the product of reliable principles and methods; and • expert has reliably applied the principles and methods to the facts of the case.

  9. 2014/2015 NC Case Law Update • State v. McGrady 8 • North Carolina Rule: • Qualified Expert may testify if: • (1) Testimony based upon sufficient facts or data • (2) Testimony product of reliable principles/methods • (3) Has reliably applied principles/methods to facts

  10. 2014/2015 NC Case Law Update • State v. McGrady 8 • Supreme Court: • Equivalent “gatekeeping” authority • May reject unreliable/irrelevant expert testimony • Concern over rulings being case dispositive on SJ • By adopting Fed Rule, Fed interpretations adopted • Can be said to be a more stringent standard

  11. NC Case Law Update North Carolina Court of Appeals • Quinn v Quinn11 • Division deed allegedly altered by grantee • Named grantee was notary taking acknowledgment • COA: deed is “void” • Conflated cases on lack of recording notice

  12. NC Case Law Update • In re: Rawls 15 • UCC specifies requirements for note negotiation • Non technical • Permits ‘wide variety’ of business practices • Possession ofnote endorsed in blank is ownership • Sufficient for a foreclosure hearing

  13. NC Case Law Update • The Residences at Biltmore Condo 16 • HOA dec. action re: ‘Declarant Retained Property’ • Telephone boards, storage closets, etc. • Condo definition: “only two types of property” • Units • Common elements • Both are owned by the unit owner... • Strict construction

  14. NC Case Law Update • Chen v Zou17 • Rule 60 motion to set aside divorce decree allowed • Service challenged • P had actual and reliable knowledge D in NY • Text messaging • More than 17 months later • Goes to jurisdiction: Judgment Void

  15. NC Case Law Update • Nies v Town of Emerald Isle17 • Public Trust Doctrine – Beach Renourishment • Issue: Regulating traffic/public use above MHW • Beach delineated into three sections • Foreshore/Wet Sand • Dry Sand • Storm Tide • Private ownership ends at “Mean High Tide” line

  16. NC Case Law Update • Landover HOA, Inc. v Sanders20 • Transfer of declarant rights at issue • COA held dissolved Corp. could not transfer rights • Decision is in error, citations not dispositive • Dissolved corporation cannot enter into contract • Dissolved corporation cannot take title • Declarant rights = Incorporeal Hereditament • See LE Oceanfront, Inc. (2014)

  17. NC Case Law Update • In re Foreclosure of Herndon21 • NCRCP Rule 41 “Two Dismissals = Res Judicata” • Third dismissal in less than two years • Action not cut off based on subsequent defaults • Distinguishes: • Lifestore Bank • Rogers Townsend & Thomas

  18. NC Case Law Update • B S K Enters., Inc., v Beroth Oil Co.22 • Adjoiners’ Groundwater Contamination Damages • Diminution where Remediation far exceeds value • “nuisance, trespass, and violation of NCOPHSCA” • Not stigma

  19. NC Case Law Update • In re: Williams22 • Intestate Succession by Illegitimate Child • Appeal by minor from order holding not an heir • Applicable Statute – N.C.G.S. Section 29-19 • Signed “Affidavit of Parent for Child Born Out of Wedlock” • But....No filing, and • No Legitimization per N.C.G.S. Sections: • G.S. 49-1 through 49-9, or • G.S. 49-14 through 49-16. G.S. 29-19(b)(1).

  20. NC Case Law Update • Harris v. Gilchrist25 • Common Law right of Accounting in Partition • Seeking: Betterments, Taxes, Rents and Profits • Betterments Statute not applicable to TIC • Not stranger to the title • No Ouster • Equitable Remedy • Different treatment for claims during life tenancy • Statute of Limitations not in issue

  21. NC Case Law Update • In re: Peacock28 • Marriage without Marriage License • Valid in North Carolina • N.C.G.S. Section 51-1 • a. In the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and • b. With the consequent declaration by the minister or magistrate that the persons are husband and wife;

  22. NC Case Law Update • In re: Peacock28 • N.C.G.S. Section 51-6 – • Merely a misdemeanor • Subject to a $200 penalty. • Unanimous opinion cites Wooley v. Bruton: • “...though violation of N.C. Gen. Stat. § 51-6 might subject a person who officiates a wedding ceremony without first receiving a marriage license to prosecution, the lack of a valid license will not invalidate that ceremony...”

  23. NC Case Law Update • Myers v. Clodfelter29 • Prescriptive easement • “abundant evidence” • Shown by hostile use, claim of right, sole access • More than 20 years (over 60 years) • Identified by a street sign • Problem arose with change in use • Commercial Paintball Field

  24. 2015/2016 NC Case Law UpdateSouth Carolina Supreme Court • Lyons v. Fidelity National Title29 • COA ‘Enhances’ Enhanced Policy Coverage • Undisclosed ICW easement and no-build Ordinance • Court rewrites Policy coverage and exclusions • Twenty years to file a claim • Zoning ordinances are “public records” for title exam • Mobile Home not “single family residence” • Duty to mitigate – mitigated • DIV Loss calculated at purchase date

  25. Finis Thank You

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