CONTENTS 19 April 1994 APPEAL AND ERROR 249 (NCI4th). The trial court properly denied defendant's motion to reinstate its appeal from the magistrate to district court where defendant's appeal was dismissed for failure to pay costs of court to appeal within 20 days after entry of judgment. An appeal is not perfected under G.S. 7A-228(b) unless the costs of court to appeal have been paid within 20 days after the entry of judgment. Principal Mut. Life Ins. Co. v. Burnup & Sims, Inc., AUTOMOBILES AND OTHER VEHICLES 305 (NCI4th). The trial court erred in its instructions on contributory negligence in an action which arose from plaintiff-highway worker being struck while his back was turned to traffic and in which the jury found contributory negligence. Bosley v. Alexander, 466 (NCI4th). The trial court erred by instructing on sudden emergency in an automobile accident case where defendant ran through an intersection in fog; crashed through an embankment into a tree; plaintiff, who was riding with defendant, was injured; and it was apparent that there was fog in the area the entire time that defendant was driving that morning. The fact that patchy fog continued to create a problem and obscured defendant's clear view of the intersection was neither sudden nor an emergency. Weston v. Daniels, 813 (NCI4th). The contention of a defendant in a driving while impaired prosecution that he was denied his statutory rights to a pre-arrest test was without merit; although a person stopped for investigation of an implied consent offense may request a chemical analysis before any arrest or charge is made, defendant did not make such a request. State v. McGill, 845 (NCI4th). The evidence was sufficient to support a conviction for driving while impaired and the trial court did not err by denying defendant's motion to dismiss. State v. O'Rourke, 852 (NCI4th). The trial court erred in a driving while impaired prosecution by instructing the jury that it could find defendant guilty on the theory that there was an appreciable impairment of defendant's bodily or mental faculties or that defendant had an alcohol concentration of .10 or more grams of alcohol per 210 liters of breath where there was no evidence whatever regarding defendant's blood alcohol level. State v. O'Rourke, BRIBERY 3 (NCI4th). There was sufficient evidence of bribery of a public officer where the State presented evidence that defendant offered an ABC enforcement officer $20 to arrest an individual for driving while impaired because the individual owed him a gambling debt. State v. Hair, COURTS 20 (NCI4th). The trial court erred by entering an order declaring that plaintiffs are the owners of a Virginia lottery ticket when the ticket was in Virginia when the suit and counterclaim were filed; in rem jurisdiction may not be invoked over property located outside North Carolina. Cole v. Hughes, CRIMINAL LAW 136 (NCI4th). Defendant's plea of guilty to armed robbery was not rendered involuntary by the trial court's failure to inform defendant that the mandatory minimum sentence of 14 years included a provision that he would have to serve seven years before being eligible for parole. State v. Daniels, 496 (NCI4th). In responding to the jury's written request to review evidence, the trial court erred by bringing only the foreman back into the courtroom to clarify which exhibits the jury wished to see and to instruct that the exhibits should not be altered. State v. Nelson, 530 (NCI4th). The trial court did not err in failing to declare a mistrial because a juror allegedly read a portion of a newspaper article during an overnight recess which revealed that defendant may have been HIV positive where the trial court examined the juror and concluded that the juror did not read the whole article and had formed no opinion that would jeopardize defendant's right to a fair trial. State v. Degree, 1430 (NCI4th). A portion of a judgment requiring a bribery defendant to pay in restitution the amount of a gambling debt which had been paid to him was vacated because the amount could not have been recovered in a civil suit. State v. Hair, 1493 (NCI4th). The trial court did not err in a driving while impaired prosecution by requiring as a special condition of probation that defendant attend Alcoholics Anonymous meetings at least two times per week during the period of his supervised probation and provide his probation officer with verification of such attendance. State v. McGill, DAMAGES 178 (NCI4th). There was no error in the award of damages in a negligence action brought by a railroad arising from a crossing accident where defendant did not argue that the award was excessive under Rule 59 as being the result of passion or prejudice and did not argue that the court's instructions on damages were improper. Southern Railway Co. v. Biscoe Supply Co., DISCOVERY AND DEPOSITIONS 65 (NCI4th). The trial court did not abuse its discretion by excluding a physician's testimony because of plaintiff's failure in discovery to designate the physician as an expert witness regarding the standard of care. Clark v. Perry, DIVORCE AND SEPARATION 13 (NCI4th). The trial court did not err by granting defendant's motion for summary judgment where plaintiff and defendant had entered into a separation agreement; defendant was represented by counsel and plaintiff was not; and the agreement vested plaintiff with property valued at $11,000 and debts valued at $24,000 while defendant received property valued at $54,600 and debts valued at $6,000. King v.King, 142 (NCI4th). In calculating the value of defendant's pension plan, the trial court did not err in using the date of separation as defendant's retirement date instead of the date at which defendant would become eligible for retirement. Surrette v. Surrette, The trial court did not improperly double discount the present value of defendant's pension where the court did discount the value of the pension at defendant's age 65 to arrive at its present value as of the date of separation, but the court's order did not require plaintiff to wait to receive her discounted benefits until defendant retired. Ibid. The trial court erred in calculating the present value of defendant's pension on the date of separation by averaging the benefits at age 50, defendant's earliest retirement age, and at age 65, since the court should have chosen the valuation of defendant's pension which assumed defendant would begin drawing benefits at his earliest retirement age, but plaintiff was not prejudiced because the court's valuation was greater than the valuation the court should have used. Ibid. 144 (NCI4th). The trial court did not abuse its discretion in determining that an unequal division of the marital assets was equitable. Surrette v. Surrette, 284 (NCI4th). When a jury or the trial judge finds that none of the grounds on which a spouse alleges entitlement to permanent alimony exist, the trial court may order recoupment of any alimony pendente lite paid by the supporting spouse. Wyatt v. Hollifield, 303 (NCI4th). Where the trial court ordered a lump sum alimony award of $54,420, and ordered plaintiff to make semi-monthly payments of $452 until the entire lump sum was paid, the entire $54,420 did not vest at the time of the court's order, and plaintiff's obligation to pay alimony was terminated by defendant's remarriage. Potts v. Tutterow, 337 (NCI4th). The trial court did not abuse its discretion by awarding custody of a minor child to the biological father where the mother, now deceased, had indicated that she wanted custody to be with plaintiffs, her relatives. Black v. Glawson, 538 (NCI4th). An alimony pendente lite award which was not appealed could support an award of counsel fees even though the trial court ordered recoupment of the alimony pendente lite. Wyatt v. Hollifield, DURESS, COERCION, AND UNDUE INFLUENCE 11 (NCI4th). Plaintiff was not entitled to rescind a stock purchase agreement on the ground of economic duress and to recover the amount he paid in excess of the price at which defendant had originally contracted to sell the stock to plaintiff since a threatened breach of the original agreement by defendant was insufficient to establish a claim for duress, and plaintiff received additional benefits other than the stock pursuant to the new agreement. Reynolds v. Reynolds, ENVIRONMENTAL PROTECTION, REGULATION, AND CONSERVATION 124 (NCI4th). An apartment development project was not funded in whole or in part by state or federal funds so as to deprive plaintiff city of the authority to regulate land disturbing activities on the project because HUD insured the loan on the project and later purchased the note and deed of trust, or because a grant was received from the Appalachian Regional Commission to install water and sewer lines, and the city had jurisdiction to impose a civil penalty for violations of the city's soil erosion and sedimentation control ordinance. City of Asheville v. Woodberry Associates, EVIDENCE AND WITNESSES 890 (NCI4th). The trial court did not err in a negligence action by a railroad arising from a crossing accident by admitting into evidence the bill for damages which plaintiff-railroad sent to defendant. Southern Railway Co. v. Biscoe Supply Co., 1811 (NCI4th). The trial court did not err in a prosecution for driving while impaired by not granting defendant's motion in limine to exclude evidence of defendant's refusal to submit to a chemical analysis where DMV had rescinded defendant's license revocation after a hearing. The decision by DMV to rescind the revocation was independent of and inconsequential to defendant's criminal trial for DWI. State v. O'Rourke, 2148 (NCI4th). The Utilities Commission erred in a hearing on whether to transfer customers from Haywood Electric Membership Corporation to Duke Power by excluding expert testimony on the impact of the transfer on Haywood. In re Dennis v. Duke Power Co. 3068 (NCI4th). The trial court abused its discretion in an automobile accident case by allowing plaintiff to be questioned regarding a lawsuit in which plaintiff participated in 1979 regarding an incident at a fishing tournament in 1977. Weston v. Daniels, HOSPITALS AND MEDICAL FACILITIES OR INSTITUTIONS 62 (NCI4th). The trial court properly directed a verdict for defendant hospital in plaintiff's action based on the alleged negligence of hospital employees in administering a blood transfusion to plaintiff's husband, a Jehovah's Witness AIDS patient who had requested that he receive no blood products, where plaintiff offered no expert testimony as to the standard of care for employees of defendant hospital in maintaining patient records and in administering blood transfusions pursuant to a physician's order. Clark v. Perry, 64 (NCI4th). The trial court properly entered a directed verdict for defendant hospital in plaintiff's action based on corporate negligence in failing to obtain informed consent before administering a blood transfusion to plaintiff's husband, a Jehovah's Witness AIDS patient who had requested that he receive no blood products, where plaintiff offered no expert testimony as to the standard of care for hospitals in the same or similar communities when obtaining a patient's informed consent to a blood transfusion. Clark v. Perry, JOINT VENTURES 1 (NCI4th). The trial court did not err by determining that a joint venture was illegal and dismissing a counterclaim to enforce the venture where the parties entered an agreement to purchase Virginia lottery tickets and purchased such tickets over a period of time. Cole v. Hughes, JUDGMENTS 25 (NCI4th). Where the trial court announced its decision to dismiss defendant's contempt motion on 13 October and filed a written order on 13 November, and there was no indication in the record that the trial court directed the clerk to make a notation of the judgment in the minutes, entry of judgment occurred when the written order was filed and defendant's notice of appeal filed on 11 December was timely. Potts v. Tutterow, 38 (NCI4th). The parties impliedly consented to the entry of judgment outside the session where the judge indicated that it might be "a week or so" before he decided the case, there was no objection, and the judge signed the judgment a month later. City of Asheville v. Woodberry Associates, 237 (NCI4th). The trial court did not err in a prosecution for driving while impaired by denying defendant's motion in limine to exclude evidence relating to defendant's refusal to submit to a chemical analysis where DMV had concluded that defendant did not willfully refuse and defendant argued that the doctrine of collateral estoppel barred the State from introducing the refusal in his trial. State v. O'Rourke, 302 (NCI4th). Plaintiff's prior action in district court for back rent after defendants had been ejected operated as a bar to this action for subsequent rent payments under the doctrine of res judicata. Holly Farm Foods v. Kuykendall, JURY 248 (NCI4th). The prosecutor did not exercise his peremptory challenges for a racially discriminatory reason where he peremptorily challenged one black man because he was young and unmarried and he peremptorily challenged one black woman because she had a son who was to be involved in a court proceeding the next day, and she had tried to have herself removed from the jury. State v. Degree, LANDLORD AND TENANT 84 (NCI4th). A lease was terminated and defendants' obligations to pay future rent ended when defendants were removed and the lessor was placed in possession pursuant to a summary ejectment proceeding where the lease did not contain a provision expressly holding the tenant liable for future rents after ejectment. Holly Farm Foods v. Kuykendall, LIENS 32 (NCI4th). Plaintiff second tier subcontractor failed to perfect its lien against motel property where plaintiff filed a claim of lien against the owner and the general contractor but did not also file a notice of a claim of lien. Universal Mechanical, Inc. v. Hunt, 35 (NCI4th). The notice of a claim of lien must be a single document substantially in the form prescribed by G.S. 44A-19, and plaintiff's claim of lien, complaint and motion to amend the complaint did not together amount to a notice of a claim of lien. Universal Mechanical, Inc. v. Hunt, LIMITATIONS, REPOSE, AND LACHES 9 (NCI4th). The two-year limitations period provided in a public performance bond for construction of a community center was not equitably tolled because the contractor made cosmetic repairs which concealed structural defects where there was no evidence that the surety ever made any misrepresentations to plaintiff town. Town of Pineville v. Atkinson/Dyer/Watson Architects, MORTGAGES AND DEEDS OF TRUST 109 (NCI4th). Where the high bidder at a foreclosure proceeding instituted against only the corporate debtor refused to pay its bid price because certain secured equipment had been removed from the property, the clerk of court properly held that the bidder would be liable on its bid to the extent that the final sales price on a resale was less than the amount of its bid, but the trustee improperly issued a new notice of hearing on foreclosure adding the individual debtor, and the clerk improperly conducted a new foreclosure hearing allowing the addition of the individual debtor as a party. In re Foreclosure of Earl L. Pickett Enterprises, 119 (NCI4th). The trial court erred by dismissing plaintiff's action against defendants as guarantors of a note used for the purchase of a restaurant on the grounds that the action was barred by the anti-deficiency statute. Adams v. Cooper, MUNICIPAL CORPORATIONS 450 (NCI4th). Plaintiff's claim against a city, its police chief and a police officer for the death of his daughter who was raped and murdered by a taxicab driver was barred by the public duty doctrine where plaintiff alleged that the driver had previously been convicted of a felony and was known to have dangerous tendencies, and that defendants were negligent by failing properly to investigate the credentials of the driver when he applied for a permit to operate a taxicab. Clark v. Red Bird Cab Co., NEGLIGENCE 6 (NCI4th). Plaintiff failed to show that her husband, a Jehovah's Witness AIDS patient, suffered severe emotional distress upon learning that he had received a blood transfusion while he was unconscious or asleep following surgery, and the trial court properly directed verdicts for defendant attending physician and defendant hospital in plaintiff's action for the negligent infliction of emotional distress. Clark v. Perry, 93 (NCI4th). The trial court did not err in a negligence action by a railroad against the owner of a truck involved in a crossing accident by directing a verdict that the accident was proximately caused by the negligence of defendant's employee, the truck driver, where defendant's evidence included the testimony of the driver and defendant's president that there was no place prior to the crossing from which to see down the track, so that the driver's failure to slow down could not have been the cause of the accident, but plaintiff's evidence included the testimony of a state trooper that there was a point prior to the crossing where the driver could have seen a sufficient distance down the tracks and several photographs which showed such a point. Southern Railway Co. v. Biscoe Supply Co., PHYSICIANS, SURGEONS, AND OTHER HEALTH CARE PROFESSIONALS 104 (NCI4th). A physician's testimony that it was the "consensus of the medical community" that a competent patient can refuse treatment, including blood transfusions, would not establish the applicable standard of care in obtaining a patient's informed consent for a blood transfusion. Clark v. Perry, 127 (NCI4th). The trial court properly entered a directed verdict for defendant attending physician in plaintiff's medical malpractice action based on defendant's alleged negligence in ordering a blood transfusion for plaintiff's husband, a Jehovah's Witness AIDS patient, while he was asleep or unconscious after surgery where plaintiff failed to present any expert testimony on the applicable standard of care. Clark v. Perry, 142 (NCI4th). The trial court properly directed a verdict for defendant attending physician in plaintiff's medical malpractice action based on defendant's failure to obtain informed consent before ordering a blood transfusion for plaintiff's husband, a Jehovah's Witness AIDS patient, while he was asleep or unconscious after surgery where plaintiff produced no appropriate evidence of the applicable standard of care. Clark v. Perry, PRINCIPAL AND SURETY 48 (NCI4th). The two-year limitations period provided in a performance bond for construction of a town community center was valid. Town of Pineville v. Atkinson/Dyer/Watson Architects, RAILROADS 32 (NCI4th). The trial court did not err in a negligence action by a railroad arising from a crossing accident by failing to submit to the jury as grounds for plaintiff-railroad's contributory negligence the failure of the engineer to abide by plaintiff's operating rule regarding track speed limits. Southern Railway Co. v. Biscoe Supply Co., 43 (NCI4th). The trial court did not err in a negligence action by a railroad against the owner of a truck involved in a crossing accident by directing a verdict that the accident was proximately caused by the negligence of defendant's employee, the truck driver. Southern Railway Co. v. Biscoe Supply Co., RAPE AND ALLIED OFFENSES 200 (NCI4th). Defendant's testimony in a second-degree rape trial amounted to an unequivocal denial of penetration which entitled him to an instruction on the lesser included offense of attempted rape. State v. Nelson, SCHOOLS 113 (NCI4th). The trial court erred in determining that respondent school system was under no legal obligation to fully develop an Individualized Educational Program (IEP) for petitioner's daughter, to present an IEP to petitioner upon request, and to present respondent's proposals in writing to petitioner, regardless of petitioner's request. Beaufort County Schools v. Roach, 227 (NCI4th). Respondent school system did not fail in its statutory duty to provide a free appropriate education for petitioner's child who had been determined to be a child with special needs where the cause of respondent's failure to follow statutory procedures and federal regulations was petitioner's act of placing the child in another school system. Beaufort County Schools v. Roach, SHERIFFS, POLICE, AND OTHER LAW ENFORCEMENT OFFICERS 22 (NCI4th). Plaintiff's claim against a city, its police chief and a police officer for the death of his daughter who was raped and murdered by a taxicab driver was barred by the public duty doctrine where plaintiff alleged that the driver had previously been convicted of a felony and was known to have dangerous tendencies, and that defendants were negligent by failing properly to investigate the credentials of the driver when he applied for a permit to operate a taxicab. Clark v. Red Bird Cab Co., STATE 53 (NCI4th). The Industrial Commission did not have jurisdiction over a claim for the death of a child who was struck and killed while attempting to cross a highway to await the arrival of his school bus because the bus driver was not operating the bus in the course of her employment at the time of the alleged negligent acts of failing to report to the principal that the stop had limited visibility and that she could pick up students on the other side of the highway, and failing to inform the principal or the child's parents that the child had previously crossed the highway by himself. Newgent v. Buncombe County Bd. of Education, UTILITIES COMMISSION 5 (NCI3d). The Utilities Commission exceeded its authority under G.S. 62-110.2(d)(2) where a number of customers of Haywood Electric Membership Corporation requested reassignment to Duke Power Company, an investor owned public utility; the Commission held hearings and entered an order which summarized the testimony of 47 witnesses who testified against Haywood regarding poor service and their attempts to obtain relief; the Commission ordered the transfer of responsibility for furnishing electric utility service to M-B Industries, Haywood's largest commercial ratepayer, to Duke Power; and it was apparent from the order that the punitive effect on Haywood of the transfer was a major factor in the decision and served as a ground for the decision. In re Dennis v. Duke Power Co., 15 (NCI3d). The Utilities Commission did not err by failing to order the immediate transfer of electric service suppliers for appellant residential customers of Haywood Electric Membership Corporation upon the Commission's determination that the service provided by Haywood is inadequate or undependable and that Haywood's conditions of service and service regulations are arbitrary and unreasonably discriminatory. In re Dennis v. Duke Power Co., 51 (NCI3d). Appellate review of a Utilities Commission order is governed by G.S. 62-94(b) and the order will not be upheld if error is found based on one of the grounds enumerated in that statute, but grounds for relief not specifically set forth in the notice of appeal filed with the Commission may not be relied upon in the appellate courts. In re Dennis v. Duke Power Co., 55 (NCI3d). The findings of the Utilities Commission were sufficient where the facts presented throughout the order provide the basis for concluding whether an action or decision was reasonable or prudent. In re Dennis v. Duke Power Co., VENDOR AND PURCHASER 9 (NCI3d). The trial court correctly granted summary judgment for defendants (the buyers and the lender) in an action to determine the burden of loss where plaintiff sold a lot and house to the Hendersons, financing was arranged through BB&T, the net proceeds of the sale were placed in escrow at the closing because a cancelled deed of trust had not been received by the attorney, Avent, the cancelled deed of trust was subsequently obtained, it was determined that Avent had misappropriated the funds, Avent executed a confession of judgment which was apparently uncollectible, and plaintiff-seller brought this action to determine whether the seller, the buyers, or the lender should bear the loss. Having obtained title to the property, the Hendersons (buyers) no longer held title to the funds in escrow and plaintiff must bear the loss. GE Capital Mortgage Services, Inc. v. Avent, WILLS 34 (NCI3d). The trial court did not err by declaring plaintiff the fee simple owner of property where Item 2 of the decedent's will states, "I have 7 acres in Albright Township goes [sic] to my wife Notie J. Coble," but defendants argued that decedent's paramount intent as gathered from the entire will was to make plaintiff the lifetime beneficiary of a testamentary trust. Coble v. Patterson, 41 (NCI3d). There was no violation of the Rule Against Perpetuities where a decedent stated in his will that, if his wife (plaintiff in this action) should predecease him, or at her death, money and certificates remaining after certain other items were paid would be kept in certificates with the interest to keep the taxes paid on the land and any remainder to be divided as stated. Coble v. Patterson, WORKERS' COMPENSATION 62 (NCI4th). In an action to recover for the wrongful death of plaintiff's intestate who was crushed by a straddle crane while he worked for defendant, plaintiff's forecast of evidence was insufficient to show that defendant employer intentionally engaged in misconduct knowing it was substantially certain to cause serious injury or death. Powell v. S & G Prestress Co.,