1 North Carolina Case Law Update September 16-17, 20161:37 AM

2 Case Law Update Case Developments, 2015/2016 1:37 AM

3 North Carolina Supreme Court High Point B&T v Highmark Props., LLC 102015/2016 NC Case Law Update North Carolina Supreme Court High Point B&T v Highmark Props., LLC 10 G.S. Sec Offset Defense to Guarantors Discretionary review COA Appeal raised less than a year from prior reported case 1:37 AM

4 High Point B&T v Highmark Props., LLC 42015/2016 NC Case Law Update High Point B&T v Highmark Props., LLC 4 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) 1:37 AM

5 Atlantic Coast Props., Inc. v. Saunders 62015/2016 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 ...” 1:37 AM

6 Map Act Triggers Inverse Condemnation Constitutes a taking 2014/2015 NC Case Law Update Kirby, et al v NCDOT Map Act Triggers Inverse Condemnation Constitutes a taking Statute of limitations two years... ....from completion of project! 1:37 AM

7 North Carolina is a Daubert Jurisdiction 2014/2015 NC Case Law Update State v. McGrady 8 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; 1:37 AM

8 North Carolina is a Daubert Jurisdiction 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. 1:37 AM

9 Qualified Expert may testify if: 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 1:37 AM

10 Equivalent “gatekeeping” authority 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 1:37 AM

11 North Carolina Court of AppealsNC Case Law Update North Carolina Court of Appeals Quinn v Quinn Division deed allegedly altered by grantee Named grantee was notary taking acknowledgment COA: deed is “void” Conflated cases on lack of recording notice 1:37 AM

12 UCC specifies requirements for note negotiation Non technical NC Case Law Update In re: Rawls UCC specifies requirements for note negotiation Non technical Permits ‘wide variety’ of business practices Possession of note endorsed in blank is ownership Sufficient for a foreclosure hearing 1:37 AM

13 The Residences at Biltmore Condo 16 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 1:37 AM

14 Rule 60 motion to set aside divorce decree allowed Service challenged NC Case Law Update Chen v Zou 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 1:37 AM

15 Nies v Town of Emerald Isle 17 NC Case Law Update Nies v Town of Emerald Isle 17 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 1:37 AM

16 Landover HOA, Inc. v Sanders 20 Transfer of declarant rights at issue NC Case Law Update Landover HOA, Inc. v Sanders 20 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) 1:37 AM

17 In re Foreclosure of Herndon 21 NC Case Law Update In re Foreclosure of Herndon 21 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 1:37 AM

18 B S K Enters., Inc., v Beroth Oil Co. 22NC 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 1:37 AM

19 In re: Williams 22 NC Case Law UpdateIntestate 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 through 49-9, or G.S through G.S (b)(1). 1:37 AM

20 Common Law right of Accounting in Partition NC Case Law Update Harris v. Gilchrist 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 1:37 AM

21 Marriage without Marriage License Valid in North CarolinaNC Case Law Update In re: Peacock 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; 1:37 AM

22 NC Case Law Update In re: Peacock 28 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...” 1:37 AM

23 Prescriptive easement “abundant evidence” NC Case Law Update Myers v. Clodfelter 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 1:37 AM

24 2015/2016 NC Case Law Update South Carolina Supreme CourtLyons v. Fidelity National Title 29 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 1:37 AM

25 Finis Thank You 1:37 AM