CONTENTS 6 July 1993 ADMINISTRATIVE LAW AND PROCEDURE 67 (NCI4th). The Court of Appeals considered the whole record to determine whether the superior court judge was correct as a matter of law in an action arising from the dismissal of an NCSU professor. In re Dismissal of Huang, 68 (NCI4th). A proceeding against a university professor for assaultive behavior from 1973 through 1985 which resulted in his discharge was patently in bad faith, arbitrary and capricious. In re Dismissal of Huang, 69 (NCI4th). The evidence in the record did not substantiate a finding that a university professor was unfit to continue as a member of the faculty at NCSU. In re Dismissal of Huang, Substantial evidence existed in the record to justify the State Personnel Commission's decision to reject the administrative law judge's opinion and dismiss a State employee who used a van for personal business while taking O'Berry Center residents on a field trip. Davis v. N.C. Dept. of Human Resources, APPEAL AND ERROR 10 (NCI4th). An appeal from a directed verdict for defendants on their counterclaim was dismissed where there was no proof of service of the notice of appeal on the other parties to the appeal as required by the Rules of Appellate Procedure. Spivey and Self, Inc. v. Highview Farms, 75 (NCI4th). The Court of Appeals was without jurisdiction to consider the merits of defendant's direct appeal from a judgment entered upon defendant's plea of guilty. State v. Hawkins, 107 (NCI4th). An interlocutory order requiring the parties and their minor child to submit to DNA testing did not affect a substantial right of plaintiff and was not appealable. State ex rel. Hill v. Manning, 141 (NCI4th). The trial court's denial of defendant's motion for appropriate relief is subject to appellate review. State v. Hawkins, 209 (NCI4th). Where the notice of appeal referred to only one judgment and made no reference to a prior order granting partial summary judgment for plaintiff or to a prior order deeming items contained in plaintiff's request for admissions admitted, the notice was insufficient to confer jurisdiction on the Court of Appeals with regard to the prior orders. Farm Credit Bank v. Van Dorp., 422 (NCI4th). Arguments made by plaintiff in support of its contentions are not properly presented as "cross-assignments of error" because they do not present "an alternate basis in law for supporting the judgment" from which defendant appealed. Spivey and Self, Inc. v. Highview Farms, BURGLARY AND UNLAWFUL BREAKINGS 93 (NCI4th). An attempt to break into a coin-operated machine is a misdemeanor. State v. Sullivan, CONSTITUTIONAL LAW 86 (NCI4th). Summary judgment was appropriate on a claim under 42 U.S.C. 1983 against Catawba County, its Commissioners, the sheriff, and law enforcement officers in their official capacities where plaintiff was arrested for sexually abusing children at his day care centers, acquitted at his first trial, the remaining charges were dropped, and plaintiff sought monetary damages. Messick v. Catawba County, The trial court properly granted summary judgment for a sheriff and officers in their individual capacities on a 1983 claim arising from plaintiff's arrest for sexually abusing children in his day care center. Ibid. 101 (NCI4th). The substantive due process rights of an NCSU professor were violated where the findings supporting his termination were arbitrary and capricious. In re Dismissal of Huang, CONTEMPT OF COURT 38 (NCI4th). An order finding the Employment Security Commission in contempt and ordering the payment of petitioner's attorney fees was remanded where the evidence was sufficient to support the trial court's ruling holding the Commission in contempt, but attorney's fees are not properly awarded in contempt cases. Gilliam v. Employment Security Commission of N.C., CONTRACTORS 11 (NCI4th). The trial court properly denied defendants' motion for a directed verdict on the ground that plaintiff lacked a general contractor's license in an action arising from defendants' failure to pay plaintiff for work performed in building a golf course. Spivey and Self, Inc. v. Highview, CONTRACTS 77 (NCI4th). The trial court erred by directing a verdict for plaintiff in an action to collect amounts owed for construction work on a golf course. Spivey and Self, Inc. v. Highview Farms, 114 (NCI4th). The general contractor had no standing to assert a claim for additional payment against an airport authority on behalf of a grading subcontractor. APAC-Carolina, Inc. v. Greensboro-High Point Airport Authority, 148 (NCI4th). The trial court properly denied defendant's motions for a directed verdict, judgment notwithstanding the verdict, or a new trial in a breach of contract action arising from the liquidation of plaintiffs' S&P 500 stock index futures on 20 October 1987. Moss v. J.C. Bradford and Co., 172 (NCI4th). Undercut work performed by plaintiff contractor in constructing an airport taxiway extension was not "extra work" where it is clear from the contract language that undercut work was to be treated as unclassified excavation. APAC-Carolina, Inc. v. Greensboro-High Point Airport Authority, Plaintiff contractor's evidence indicating potential errors in defendant airport authority's measurements of the amount of unclassified excavation by using the average end area method specified in the contract was sufficient to raise a genuine issue of material fact with respect to the amount of unclassified excavation and entitled plaintiff to present evidence of the measurements it obtained using the load count method. Ibid. Plaintiff contractor was not entitled to recover for extra erosion control work it performed on an airport taxiway extension project under a breach of implied warranty theory based on its contention that defendant airport authority's plans and specifications contained inadequate erosion control measures and were thus not suitable for the purpose for which they were intended. Ibid. The no-damages-for-delay clause of an airport taxiway extension contract prohibited plaintiff contractor from recovering increased costs allegedly caused by delays from unanticipated undercut and erosion control work. Ibid. COURTS 14 (NCI4th). When personal jurisdiction is alleged to exist pursuant to G.S. 1-75.4(1)(d), the question of statutory authorization collapses into the question of whether the defendant has the minimum contacts with North Carolina necessary to meet the requirements of due process. Murphy v. Glafenhein, 84 (NCI4th). Where plaintiff's first motion for summary judgment was denied by one superior court judge, another superior court judge did not have authority to allow plaintiff's second motion for summary judgment on identical issues. Taylorsville Savings and Loan Assn. v. Keen, CRIMINAL LAW 327 (NCI4th). The trial court properly permitted joinder of the trials against defendant and his companion even though defendant was not charged with one of the crimes with which his companion was charged. State v. Roddey, 980 (NCI4th). Judgment predicated upon defendant's plea of guilty to an invalid habitual felon indictment is arrested, and where this indictment was consolidated with the underlying substantive felonies for judgment, the case must be remanded for proper judgment on the valid convictions even though those convictions would support the judgment entered. State v. Hawkins, 1283 (NCI4th). An habitual felon indictment was invalid where it failed to allege any of the underlying substantive felonies with which defendant was currently charged. State v. Hawkins, 1284 (NCI4th). An attempt to break into a coin-operated machine is a misdemeanor and cannot serve as a felony prosecution to which an habitual felon proceeding can attach as an ancillary proceeding. State v. Sullivan, 1524 (NCI4th). Defendant is entitled to a new probation revocation hearing where the trial judge at the probation revocation hearing erroneously believed that he had no discretion to reduce defendant's sentence by ordering that his two terms run concurrently rather than consecutively as originally ordered. State v. Partridge, DAMAGES 60 (NCI4th). A liquidated damages clause in an airport taxiway construction contract was valid and enforceable when undercut work did not constitute extra work and defendant airport authority thus did not contribute to a delay in the project by ordering such work to be performed, but plaintiff contractor was entitled to an increase in the contract time if undercut work exceeded the proposal estimate. APAC-Carolina, Inc. v. Greensboro-High Point Airport Authority, 122 (NCI4th). The trial court did not err by denying plaintiffs' motion for a judgment notwithstanding the verdict in an action arising from the liquidation of their margin accounts where they contended that the jury must have considered a "window of reentry" of less than one business day in calculating damages. Iron Steamer, Ltd. v. Trinity Restaurant, 125 (NCI4th). The trial court erred in an action for breach of a commercial lease when, sitting without a jury, it made findings and an award for defendant restaurant based on lost profits. Iron Steamer, Ltd. v. Trinity Restaurant, DIVORCE AND SEPARATION 172 (NCI4th). Plaintiff wife's claim against her former husband for breach of a contract to maintain lease payments on an automobile was not barred by plaintiff's failure to seek equitable distribution of this debt prior to the entry of absolute divorce. Harrington v. Harrington, EVIDENCE AND WITNESSES 29 (NCI4th). The trial court in a homicide prosecution was not required to take judicial notice of the time of the sunset and the phase of the moon as reported in a newspaper since the source from which the data was drawn was not a document of indisputable accuracy. State v. Canady, 400 (NCI4th). The trial court did not err in refusing to allow the black defendant to inquire into the ability of a white armed robbery victim to identify black people. State v. Roddey, 732 (NCI4th). A murder defendant's reply to an officer's question was not inculpatory where the officer asked defendant if he knew what was happening and defendant replied that his wife had been hurt and was being taken to the hospital and that the police believed he was responsible. State v. Dukes, 1235 (NCI4th). A murder defendant was subject to interrogation where an officer was told to stay with defendant and ensure that defendant did not wash or change his clothes and the officer asked defendant if he knew what was happening. State v. Dukes, 1239 (NCI4th). A murder defendant was in custody when he made a statement to an officer because a reasonable person, knowing that his wife had just been killed, kept under constant police supervision, told not to wash or change his clothing, and never informed that he was free to leave his own home would not feel free to go and would feel compelled to stay. State v. Dukes, 1298 (NCI4th). A murder defendant's statement to an investigator at a law enforcement center was voluntary where the evidence showed that the officer had not asked defendant any questions and was trying to read defendant his rights, as well as calm him down, when defendant confessed. State v. Dukes, 2093 (NCI4th). The trial judge did not err in a murder prosecution by allowing the State's witnesses to testify that defendant was faking his distress where each of the witnesses was required to provide foundation testimony which showed that their opinion was based upon their own perception of the defendant's behavior. State v. Dukes, HIGHWAYS, STREETS, AND ROADS 46 (NCI4th). Undercut work performed by plaintiff contractor in constructing an airport taxiway extension was not "extra work" where it is clear from the contract language that undercut work was to be treated as unclassified excavation. APAC-Carolina, Inc. v. Greensboro-High Point Airport Authority, Plaintiff contractor was not entitled to recover for extra erosion control work it performed on an airport taxiway extension project under a breach of implied warranty theory based on its contention that the defendant airport authority's plans and specifications contained inadequate erosion control measures and were thus not suitable for the purpose for which they were intended. Ibid. 47 (NCI4th). The no-damages-for-delay clause of an airport taxiway extension contract prohibited plaintiff contractor from recovering increased costs allegedly caused by delays from unanticipated undercut and erosion control work. APAC-Carolina, Inc. v. Greensboro-High Point Airport Authority, ILLEGITIMATE CHILDREN 11 (NCI4th). The trial court's order allowing defendant's motion to compel DNA testing to further establish paternity after paternity had been adjudicated violated the doctrine of res judicata. State ex rel. Hill v. Manning, INDICTMENT, INFORMATION, AND CRIMINAL PLEADINGS 48 (NCI4th). Defendant did not waive material defects in an habitual felon indictment by entering his plea of guilty without making a motion to quash or otherwise objecting to the indictment. State v. Hawkins, JUDGMENTS 36 (NCI4th). A judgment was void because it was entered out of the county and the district without defense councel's consent, no final judgment on the merits has been rendered, and any attempt by defendants to appeal from that void judgment was inconsequential and will not prohibit defendants from designating all prior interlocutory orders in the notice of appeal when the trial court enters a proper final judgment. Farm Credit Bank v. Van Dorp., LANDLORD AND TENANT 57 (NCI4th). The trial court did not err in an action for breach of a commercial lease by finding that plaintiff, the landlord, had breached the lease by failing to replace a water heater, an exterior door, and an inadequate heating and air conditioning system. Iron Steamer, Ltd. v. Trinity Restaurant, LIMITATIONS, REPOSE, AND LACHES 139 (NCI4th). Even if the trial court had the discretion to extend the time for filing a complaint, the action would have been deemed a new action since the old one had abated, and the new action would be barred by the statute of limitations. Osborne v. Walton, 145 (NCI4th). Filing an action in federal court which is based on state substantive law tolls the statute of limitations while that action is pending. Clark v. Velsicol Chemical Corp., A petition for writ of certiorari is not an appeal of right and the treatment of the case after a petition is filed is uncertain; therefore, the action is not alive for the purpose of tolling the statute of limitations while the petition is pending. Ibid. The savings provision of G.S. 1A-1, Rule 41(b) did not apply to allow plaintiff extra time to file after the statute of limitations ran. Rule 41(b) requires that the dismissal order specify that a new action based on the same claim may be filed within one year. Ibid. MALICIOUS PROSECUTION 19 (NCI4th). The trial court properly granted summary judgment for defendant officers in their official capacities on a malicious prosecution claim where plaintiff was arrested, tried, and acquitted for sexually abusing children at his day care centers. Messick v. Catawba County, MORTGAGES AND DEEDS OF TRUST 14 (NCI4th). Although a person may execute a valid deed of trust for the debt of another, the deed of trust in this case was invalid because it did not properly identify the obligation secured. In re Foreclosure of Enderle, MUNICIPAL CORPORATIONS 30.19 (NCI3d). Petitioner's allegation that it was the "owner of adjoining property" did not show standing to contest the decision by respondent board of adjustment to issue a special exception permit allowing respondent landowners to add to a metal storage building at the rear of their property, and evidence that the requested construction would increase "the negative impact" on petitioner's property and "would not be visually attractive" would not support a finding that petitioner would suffer any pecuniary loss to its property due to the issuance of the permit. Kentallen, Inc. v. Town of Hillsborough, 219 (NCI4th). Defendant city had the authority to enter into an oral contact promising pension benefits to former law enforcement officers employed by the city who accepted early retirement. Bowers v. City of High Point, The Assistant City Manager had the authority to enter into a contract fixing the rate of the "special separation allowance" which defendant city would pay to former law enforcement officers who accepted early retirement. Ibid. 234 (NCI4th). An agreement made by the Assistant City Manager that the statutorily required severance pay for former law enforcement officers who accepted early retirement would be based upon their regular salary plus vacation, longevity, and overtime was not ultra vires the city. Bowers v. City of High Point, 450 (NCI4th). The public duty doctrine barred plaintiff's claims against defendant animal control officers for wrongful death based on their alleged failure to properly protect an individual from dogs which defendants had reason to know were dangerous, and by policing animal control in the neighborhood in which intestate was attacked, defendants did not create a "special relationship" with intestate which created an exception to the public duty doctrine. Prevette v. Forsyth County, NEGLIGENCE 102 (NCI4th). Plaintiff contractor and plaintiff grading subcontractor were not entitled to recover from defendant engineering firm for negligent misrepresentation of the amount of necessary undercut work in the plans and specifications of an airport taxiway extension project because there was no justifiable reliance by plaintiffs. APAC-Carolina, Inc. v. Greensboro-High Point Airport Authority, PARENT AND CHILD 116 (NCI4th). A termination of parental rights proceeding was remanded for a new trial with a guardian ad litem appointed for the respondent mother where petitioner alleged and the trial court found that the respondent was incapable of proper care and supervision of her children because of mental retardation and other mental conditions but the issue of appointing a guardian ad litem was never presented at the trial court level. In re Richard v. Michna, PUBLIC WORKS AND CONTRACTS 57 (NCI4th). The general contractor had no standing to assert a claim for additional payment against an airport authority on behalf of a grading subcontractor. APAC-Carolina, Inc. v. Greensboro-High Point Airport Authority, 172 (NCI4th). Undercut work performed by plaintiff contractor in constructing an airport taxiway extension was not "extra work" where it is clear from the contract language that undercut work was to be treated as unclassified excavation. APAC-Carolina, Inc. v. Greensboro-High Point Airport Authority, The no-damages-for-delay clause of an airport taxiway extension contract prohibited plaintiff contractor from recovering increased costs allegedly caused by delays from unanticipated undercut and erosion control work. Ibid. ROBBERY 4.3 (NCI3d). The evidence was sufficient to be submitted to the jury in an armed robbery prosecution even though there was no physical evidence of the armed robbery. State v. Roddey, RULES OF CIVIL PROCEDURE 3 (NCI3d). Where plaintiffs failed to file their complaint until twenty-one days past the date specified in an order granting them an extension of time to file their complaint, plaintiffs' action abated, and a new action would be barred by the statute of limitations. Osborne v. Walton, 11 (NCI3d). The trial court did not err by refusing to impose sanctions against the Employment Security Commission where the Commission's actions were grounded in law. Gilliam v. Employment Security Commission of N.C., A case was remanded for the trial court to consider whether Rule 11 sanctions should be imposed against the Employment Security Commission for remanding a case to an appeals referee rather than issuing a final decision as ordered where petitioner's prayer for relief had requested Rule 11 sanctions but it was unclear from the record whether Rule 11 sanctions were considered by the trial court. Ibid. 58 (NCI3d). The trial court did not err in finding that entry of judgment occurred on 7 October 1991 where defendants admitted in open court that they had "actual notice of the filing of the judgment on or about October 7, 1991," and the trial court properly dismissed defendants' appeals taken thirty-one days after this date. Saieed v. Bradshaw, 59 (NCI3d). The trial court did not abuse its discretion in an action to collect monies due for construction of a golf course by denying defendants' motion to amend the judgment to delete the award to plaintiff where defendants failed to raise the issue in a motion prior to trial. Spivey and Self, Inc. v. Highview, SEARCHES AND SEIZURES 11 (NCI3d). It was impermissible for officers to inventory, impound, or tow defendant's car, and items sized from the car during an inventory search should have been suppressed, where the car was parked in a lot of a club which officers searched to determine whether taxpaid liquor was being sold, and officers decided to tow the car so that it would not be vandalized. State v. Peaten, SHERIFFS AND CONSTABLES 2 (NCI3d). The two deputies who arrested plaintiff for sexually abusing children in his day care centers were performing discretionary duties and are public officers entitled to immunity from negligence claims. Messick v. Catawba County, 4 (NCI3d). A sheriff and other officers sued in their official capacities after plaintiff was arrested, tried, and acquitted for sexually molesting children in his day care centers were not immune because the statutory mandate that the sheriff furnish a bond works to remove the sheriff from the protective embrace of governmental immunity where the surety is joined as a party to the action. Messick v. Catawba County, The trial court properly granted summary judgment for defendant in his official capacity where plaintiff was arrested, tried, and acquitted of molesting children in his day care centers and brought an action which included a claim for negligent investigation. Ibid. A sheriff was immune from suit in his individual capacity on plaintiff's cause of action for negligence and negligent infliction of emotional distress arising from plaintiff's arrest for sexually abusing children in his day care centers. Ibid. STATE 12 (NCI3d). The State Personnel Commission did not commit an error of law by holding that appellant's excessive mileage was a misuse of State property which constituted just cause for dismissal. Davis v. N.C. Dept. of Human Resources, TAXATION 25.3 (NCI3d). The house belonging to appellee taxpayers could not be considered "discovered property" where the taxpayers listed their property, including their house, on a tax listing form signed by taxpayer husband, and the portion of the tax listing form which contained a listing of the house was inadvertently removed and destroyed in the assessor's office. In re Appeal of Dickey, 25.4 (NCI3d). Failure by the assessor, due to an administrative error, to include on the taxpayers' 1989 tax bill an assessment for the improvements to their lot was an immaterial irregularity and did not invalidate the tax owed by them on their house. In re Appeal of Dickey, 25.5 (NCI3d). The statute prohibiting retroactive increases in appraised property values, G.S. 105-287, did not preclude the county assessor's office from levying the challenged 1989 tax on taxpayers' house in 1990 where the portion of the taxpayers' 1989 tax listing form which contained the listing of the house was inadvertently removed and destroyed, and the assessor was unaware of any improvements to the lot which had previously been appraised. In re Appeal of Dickey, TRESPASS 2 (NCI3d). Summary judgment was properly granted for defendants in their official capacities on a claim for intentional infliction of emotional distress arising from plaintiff's arrest for sexually abusing children at his day care centers. Messick v. Catawba County, The trial court properly granted summary judgment for defendant officers in their official capacities on a malicious prosecution claim were plaintiff was arrested, tried, and acquitted for sexually abusing children. Ibid. 3 (NCI3d). The trial court properly granted summary judgment for defendant in an action arising from contamination of plaintiff's wells where defendant discovered that an underground pipeline at its facility was leaking. Ammons v. Wysong & Miles Co., TRIAL 38 (NCI3d). The trial court did not err in a breach of contract action arising from the liquidation of plaintiffs' margin account in S&P 500 stock index futures by refusing to give requested jury instructions. Moss v. J.C. Bradford and Co., VENUE 5.1 (NCI3d). Defendant was entitled to a change of venue to the county where a nursing home facility was located where plaintiff alleged that it entered into an option agreement with defendant giving plaintiff the opportunity to purchase outright at a discount the note and deed of trust on the facility held by defendant's trustee and that legal title to the facility would transfer from the trustee to plaintiff if it exercised the option, and plaintiff sought a judgment declaring that the option was still in effect and could be exercised by plaintiff. Neil Realty Co. v. Medical Care, Inc., WATERS AND WATERCOURSES 3.2 (NCI4th). The trial court properly granted summary judgment for defendant in an action for negligence, nuisance, trespass, and strict liability under G.S. 143-215.75 arising from contamination of plaintiffs' wells where causation was a common element in each claim asserted by appellants and plaintiffs failed to show that the potential sources of contamination from defendant's property caused them damage. Ammons v. Wysong & Miles Co.,