The electronic filings on the Business Court website are public records, which the public has the right to inspect.  The Court’s power to place filings under seal, or to limit the public’s right of access, is permitted “when there is a compelling countervailing public interest and closure of the court proceedings or sealing of documents is required to protect such countervailing public interest.” (citing Virmani v. Presbyterian Health Servs., 350 N.C. 449, 476,515 S.E.2d 675, 693 (1999).  There is no distinction between a record available online at…

Continue Reading Clemenzi v. Freer, March 26, 2009 (Diaz)(unpublshed)

The Court rejected Plaintiff’s argument that a provision limiting its recovery of damages for breach of contract was an unenforceable penalty, ruling instead that this was a valid liquidated damages provision. 

The Court also found there to be a question of fact whether one of the Defendants had been a part of a joint venture, so that he could be personally bound under a contract even though he had not signed it.  The Court denied this Defendant’s statute of frauds argument on that basis, stating the following with regard to…

Continue Reading Azalea Garden Board & Care, Inc. v. Vanhoy, 2000 NCBC 8 (N.C. Super. Ct. March 17, 2009)(Tennille)

N.C. Gen. Stat.  §41-23, which repealed the common law Rule Against Perpetuities as well as the Uniform Statutory Rule Against Perpetuities (N.C. Gen. Stat. §41-15) as they apply to trusts created or administered in North Carolina is constitutional.

The prohibition against “perpetuities and monopolies” found at Article I, Section 34 of the North Carolina Constitution applies only to unreasonable restraints on the alienation of property and not to the vesting of remote interests.

Full Opinion

Plaintiff’s Brief in Support of Motion for Summary Judgment

Defendant’s Brief in Opposition to Motion…

Continue Reading Brown Brothers Harriman Trust Co. v. Benson, February 26, 2009 (Diaz)(unpublished)

When a Court is considering whether to apply the law of a foreign country, as permitted by Rule 44.1 of the North Carolina Rules of Civil Procedure:

• The Court has "[b]road authority to conduct [its] own independent research to determine foreign law," but no duty to so.
• Both parties have the burden to "raise[]the issue that foreign law may apply in an action, and the burden of adequately proving foreign law to enable the court to apply it in a particular case."
• When the "parties fail to satisfy either burden

…
Continue Reading Speedway Motorsports International Ltd. v. Bronwen Energy Trading, Ltd., 2009 NCBC 3 (N.C. Super. Ct., February 18, 2009)(Diaz)

The issue here was whether a Plaintiff located in Winston-Salem which held a state trademark registration was entitled to an injunction against a competing store with a similar name located in Charlotte.

Judge Diaz applied federal Lanham Act principles in deciding whether the Plaintiff had a sufficient market presence in the Charlotte area to warrant injunctive relief.  He said that "North Carolina’s common law is no different" from federal law in determining the rights of a senior user. Op. n.7.

The established tests for injunctive relief when a senior user…

Continue Reading Windsor Jewelers, Inc. v. Windsor Fine Jewelers, LLC, 2009 NCBC 2 (N.C. Super. Ct. Feb. 16, 2009)(Diaz)

The Court denied the entry of a mandatory injunction requiring the Defendant to deliver the title to a motor vehicle to a third party purchaser. 

The Court observed that “'[m]andatory injunctions are disfavored as an interlocutory remedy[]’ because, rather than maintaining the status quo (as is the case when a prohibitory injunction issues), a mandatory injunction effectively alters it."

The Court held that such an injunction is appropriate where a plaintiff provides proof of “serious irreparable injury to the [plaintiff] if the injunction is not granted, no substantial injury to…

Continue Reading A-1 Pavement Marking, LLC v. APMI Corp., March 19, 2009 (Diaz)(unpublished)