Where residents of Lumberton, North Carolina, alleged a railroad prevented the city from closing a dike across the railroad’s tracks, in contravention of a contract between the railroad and city, resulting in significant damage to their properties from Hurricanes Matthew ...
Read More »Contract – N.C. ‘flooding’ lawsuit against railroad resurrected
Criminal Practice – Failure to raise double jeopardy not ineffective assistance 
Where a defendant challenged his convictions stemming from his involvement with MS-13, the court joined other circuits in finding the Double Jeopardy Clause prohibits imposition of cumulative punishments for § 924(c) and § 924(j) convictions based on the same conduct. ...
Read More »Administrative – Disability established by objective, subjective evidence 
The administrative law judge erred by requiring objective evidence about the persistence and limiting effects of fibromyalgia on the claimant’s daily life. This error was compounded by the fact that objective evidence was present, but ignored. The record as a ...
Read More »Criminal Practice – Bad instruction did not affect court martial outcome 
Although jury hearing the court martial of an Air Force captain accused of sexual assault was given an instruction that the Court of Appeals for the Armed Forces later concluded was a breach of his Fifth Amendment due process rights, ...
Read More »Consumer Protection – Level of deference afforded to FCC rule to be determined 
Where the parties in a dispute over whether a fax was an unsolicited advertisement never briefed what level of deference should be afforded a 2006 FCC rule interpreting what constitutes an “advertisement” under the Telephone Consumer Protection Act, the case ...
Read More »Labor & Employment – Fire battalion chiefs not entitled to overtime 
Where fire battalion chiefs argued they were covered by a “first responder regulation,” which required they be paid overtime, because their primary duty was management and not front line firefighting, the first responder regulation was inapplicable. A review of their ...
Read More »Tort/Negligence – Malicious Prosecution – Arrest Warrant Affidavit – Clarified Allegations 
Although plaintiff complains about the allegations in the affidavit that supported his arrest warrant, probable cause continues to exist even if we make the clarifications to the affidavit as urged by plaintiff. Even if the affidavit (1) alleged a shorter ...
Read More »Taxation – Real Property – Assessable Transfer of Interest Exemption – Timing 
When an assessable (i.e., appraisal-triggering) transfer of interest, or ATI, in real property occurs, our property tax statutes provide for an ATI exemption. Reading the relevant statutes together, a taxpayer who purchases qualifying property before an implementation year may claim ...
Read More »Criminal Practice – Child Witness – Competency Questions – Judge’s Comments – Jury Charge 
In the presence of the jury, the trial court commented that a minor witness was competent to testify unless she was otherwise disqualified. Where the trial court made this comment in conjunction with a formal reference to Rule 601(a), SCRE, ...
Read More »Domestic Relations – Equitable Division – Inherited & Purchased Property – Alimony – Social Security Disability – Child Support – Educational Expenses 
Since the plaintiff-wife inherited a one-seventh interest in her house, that one-seventh interest is her separate property. However, because the wife purchased the remaining six-sevenths interest from her siblings before she filed for divorce, the six-sevenths interest is marital property. ...
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