Opinion

Ocean Acres Limited Partnership v. Dare County Board of Health

  • 707 F.2d 103
Court
Court of Appeals for the Fourth Circuit
Filed
May 12, 1983
Status
Published
Author
Winter
On the bench
Chapman, Michael, Winter
Cited by
5 cases
Authority
More cited than 19.3%

continual ill effects from original violation do not constitute continuing violation

How later courts described this case

  • continual ill effects from original violation do not constitute continuing violation

Written by the judges who cited it.

The opinion

HARRISON L. WINTER, Chief Judge,

concurring specially:

I concur in the judgment and the majority opinion except with respect to the discussion of plaintiffs’ theory of continuing wrong.

While I have lingering doubts as to whether plaintiffs alleged a continuing wrong by reason of the moratorium so as to remove the bar of the statute of limitations, see Gordon v. City of Warren, 579 F.2d 386 (6 Cir.1978), I feel it is unnecessary to reach this issue because I am persuaded that plaintiffs sustained no injury within three years prior to the filing of suit. The majority has pointed out in n. 4 of the majority opinion that it is unlikely that after the spring of 1973 plaintiffs expended sums that were not minimal as a result of the moratorium. In their complaint, plaintiffs did not plead any expenditures within the three-year period prior to filing suit, and more importantly in their affidavits in opposition to defendants’ motion for summary judgment, they adduced no such proof. Indeed the affidavits appear to confirm that plaintiffs’ sole damage claim is loss of profits and the initial cost of installation of the central sewer system. If the alleged continuing wrong occasioned no continuing or further injury, I think the suit is time-barred.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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