CONTENTS 5 and 19 July 1994 APPEAL AND ERROR 119 (NCI4th). Plaintiff's appeal from the trial court's order granting defendant partial summary judgment on the issue of punitive damages is interlocutory and is dismissed. Moose v. Nissan of Statesville, 170 (NCI4th). Plaintiff's appeal from the trial court's orders with regard to child custody, child support, and alimony is dismissed where plaintiff and the child in question are in hiding. Medina v. Medina, ATTACHMENT AND GARNISHMENT 23 (NCI4th). All attendant circumstances should be considered with an eye toward whether attached property has been identified clearly in a sheriff's return upon attachment. Main Street Shops, Inc. v. Esquire Collections, Ltd., Attached property was sufficiently identified in the sheriff's return where the property was described as being "Esquire Collections, Shop + Contents" and "Close Esquire Collections Ltd a foreign operation." Ibid. 39 (NCI4th). Posting of a bond to release property from attachment estops a defendant from thereafter challenging any procedural defects in the process. Main Street Shops, Inc. v. Esquire Collections, Ltd., AUTOMOBILES AND OTHER VEHICLES 93 (NCI4th). Petitioner's driver's license was improperly revoked for willful refusal to submit to a chemical analysis because petitioner was not properly advised of his rights pertaining to a breathalyzer test where the charging officer, after designating that a breathalyzer test was to be performed, failed to take defendant before another officer to inform defendant both orally and in writing of his rights enumerated in G.S. 20-16.2(a). Nicholson v. Killens, 818.1 (NCI4th). The offense of habitual impaired driving constitutes a separate subsequent felony which is properly within the original exclusive jurisdiction of the superior court. State v. Priddy, A defendant cannot collaterally attack the validity of his prior convictions in a prosecution for habitual impaired driving. State v. Muscia, BROKERS AND FACTORS 61 (NCI4th). Defendant, the selling agent for real property purchased by plaintiffs, did not owe plaintiffs the duty to check federal flood hazard maps to determine whether the property was located in a flood hazard zone and, upon finding that the property was located in such a zone, to inform plaintiffs that the property was located in a flood plain and probably would be subject to flooding. Clouse v. Gordon, CONSTITUTIONAL LAW 169 (NCI4th). The midtrial dismissal of the habitual driving while impaired charge on jurisdictional grounds did not amount to an acquittal of that offense so as to bar a second trial. State v. Priddy, COSTS 25 (NCI4th). Where petitioner agency did not have the authority to appeal its own decision to the superior court, G.S. 96-17(b1) was inapplicable to require respondent to pay his own legal fees, and the trial court could order attorney's fees under G.S. 6-19.1, but the court was required to make findings as to whether the agency acted without substantial justification or whether there were special circumstances which would make the award of fees unjust. Employment Security Comm. v. Peace, CRIMINAL LAW 313 (NCI4th). The trial court did not err in joining armed robbery cases for trial where the two robberies were separated by less than twenty-four hours. State v. Floyd, 362 (NCI4th). The trial court erred in granting the State's motion to clear the courtroom during a rape and kidnapping victim's testimony without making findings as to the interest likely to be prejudiced, the degree of closure required, and the existence of alternatives. State v. Jenkins, 375 (NCI4th). The trial court improperly expressed an opinion in the presence of the jury in a rape and kidnapping trial when he turned his back to the jury for forty-five minutes during defendant's testimony on direct examination. State v. Jenkins, DIVORCE AND SEPARATION 409 (NCI4th). A father was not personally liable for his minor child's medical expenses because he violated the parties' 1978 consent judgment when he allowed his insurance coverage to lapse. Lawrence v. Nantz, 447 (NCI4th). A minor child's hospitalization constituted a change of circumstances, and the trial court had the authority to apportion the cost between plaintiff and defendant. Lawrence v. Nantz, ENVIRONMENTAL PROTECTION, REGULATION, AND CONSERVATION 40 (NCI4th). Plaintiff's failure to exhaust the administrative remedies provided by CAMA for review of a permit decision allowing defendant to construct a pier across submerged lands belonging to plaintiff precluded plaintiff's action seeking a declaratory judgment that the permit was improperly issued. Leeuwenburg v. Waterway Investment Limited partnership, ESTOPPEL 13 (NCI4th). Equitable estoppel did not preclude defendant's assertion of the invalidity of the parties' marriage in his motion to terminate alimony since it was plaintiff who was negligent in failing to obtain a copy of a divorce judgment prior to entering into a second marriage. Lane v. Lane, EVIDENCE AND WITNESSES 124 (NCI4th). In a rape prosecution in which the trial court admitted evidence of prior sexual acts between the victim and defendant which was pertinent to the defense that the victim consented, the trial court did not err in excluding evidence of sexual acts between them which was irrelevant and cumulative. State v. Jenkins, 386 (NCI4th). Evidence that one month prior to an alleged rape, defendant failed to return the victim's car, stole some money, broke into her home, and was arrested was admissible to show the chain of events and the termination of the relationship. State v. Jenkins, 403 (NCI4th). Although evidence of a prior altercation with an eyewitness is relevant as a general rule, that evidence lost its relevance when the identity of the person with whom defendant argued is merely speculation. State v. Floyd, 1469 (NCI4th). The trial court properly admitted into evidence in an attempted armed robbery case a broken bottleneck which was allegedly used by defendant in the crime and which was found in the area of the crime. State v. Harris, 1708 (NCI4th). Defendant was not prejudiced by the improper exclusion of photographic evidence where the scene depicted in the photographs was described for the jury. State v. Floyd, INDIANS 7 (NCI4th). Institution of a state court action for reimbursement for AFDC benefits would not unduly infringe upon tribal sovereignty where a prior tribal court order involved only child support. Jackson County ex rel. Smoker v. Smoker, A state court could properly exercise subject matter jurisdiction over the issue of child support without unduly infringing upon tribal sovereignty where that issue had been litigated previously in the tribal court without notice to the State. Ibid. The state court had subject matter jurisdiction to consider an action by the State, which provided AFDC benefits, to establish and collect present and future child support in a case involving a father and child who are Cherokee Indians even though the tribal court had held that defendant mother was not liable for child support. State ex rel. West v. West, INSURANCE 514 (NCI4th). Plaintiff was not entitled to intrapolicy stack the UM coverage of the two vehicles insured by an automobile policy issued prior to 1991 where the "limit of liability" clause in the policy clearly indicated that stacking of UM coverage was prohibited. Hussey v. State Farm Mut. Auto. Ins. Co., Where plaintiff was injured by an uninsured motorist while riding his motorcycle, insured by defendant under one policy, plaintiff also owned two vehicles insured by defendant under a second policy, and both policies were issued prior to the 1991 statutory amendments, plaintiff was entitled to interpolicy stack the UM coverages under both policies. Ibid. 515 (NCI4th). A "family member/household-owned vehicle" provision in the insured's business auto policy was repugnant to the purpose of UM and UIM coverage, was thus invalid, and did not preclude UM coverage for the insured's wife while driving a vehicle owned by the insured but not covered by the policy. Bray v. N.C. Farm Bureau Mut. Ins. Co., Where the husband's business auto policy included a "family member" exclusion, UM coverage provided by the policy to the insured's wife was limited to the statutory minimum of $25,000 per person. Ibid. 536 (NCI4th). Plaintiff wife was entitled to UM coverage under plaintiff husband's garage policy where an endorsement to the policy provided UM coverage of $25,000 per person/$50,000 per accident. Bray v. N.C. Farm Bureau Mut. Ins. Co., 617 (NCI4th). Injuries suffered by defendant when hit by an object intentionally thrown from a moving vehicle did not arise out of the use of the vehicle within the meaning of an automobile liability policy. Providence Washington Ins. Co. v. Locklear, 622 (NCI4th). Where plaintiff disregarded a premium notice from his automobile insurer and failed to pay the premium by the cancellation date of 17 March, his policy was not in effect and his 28 March accident was not covered, even though defendant insurer mailed plaintiff a reinstatement offer on 27 March and plaintiff gave the insurance premium payment to his agent within two days after 28 March. Zenns v. Hartford Accident and Indemnity Co., 686 (NCI4th). Plaintiffs, an injured child and his parents, were entitled to an aggregate award of $100,000 under a policy issued by defendant rather than $100,000 per plaintiff where the policy limited liability to $100,000 for each person injured in an accident, since the parents' claim was derivative, and they sustained no bodily injury within the meaning of the policy. Howard v. Travelers Insurance Cos., 725 (NCI4th). Defendant homeowner's deeds and subsequent admission that he willfully sexually abused a music student in his home established the student's injuries were "expected" by the homeowner within the meaning of a provision of a homeowner's policy excluding liability coverage for bodily injury "which is expected or intended by the insured." Nationwide Mutual Ins. Co. v. Abernethy, INTOXICATING LIQUOR 31 (NCI4th). A memorandum distributed by the Division of Alcohol Law Enforcement to its supervisors that "video poker" and similar video machines were in violation of state gambling laws, and that possession or operation of those video machines on ABC licensed premises was unlawful, did not constitute a "rule" which required compliance with the Administrative Procedure Act's rule promulgation requirements. Ford v. State of North Carolina, JURY 260 (NCI4th). The trial court did not err in finding that the prosecutor rebutted defendant's prima facie case of racial discrimination in the prosecution's use of peremptory challenges of all five black prospective jurors and that the prosecutor's reasons for excusing the black jurors were not pretextual. State v. Floyd, LANDLORD AND TENANT 13 (NCI4th). The trial court properly declined to instruct the jury on plaintiff's alleged breach of the covenant of quiet enjoyment in an action for breach of a lease. Main Street Shops, Inc. v. Esquire Collections, Ltd. 38 (NCI4th). An unopened certified letter bearing the notation "unclaimed" and addressed to defendant corporation's secretary at the address set forth in the lease was properly admitted to corroborate evidence that plaintiff gave notice of default to defendant in the manner designated in the lease. Main Street Shops, Inc. v. Esquire Collections, Ltd., MARRIAGE 5 (NCI4th). A bigamous marriage is void and may be collaterally attacked, and res judicata did not preclude defendant's assertion of the invalidity of the parties' marriage in his motion to terminate alimony and dismiss equitable distribution proceedings. Lane v. Lane, MORTGAGES AND DEEDS OF TRUST 91 (NCI4th). A posted notice of a foreclosure hearing may run concurrently with any other effort to effect service, and there is no requirement that the posted notice contain the names of the parties entitled to notice. McArdle Corp. v. Patterson, PLEADINGS 378 (NCI4th). Where plaintiffs named Haywood County Hospital Foundation, Inc. as defendant in a malpractice action instead of Haywood County Hospital, the trial court properly refused to add the Hospital to the action pursuant to the misnomer rule, and plaintiffs could not add the Hospital as a defendant under Rule 15(c) since the Hospital had no notice that plaintiffs had filed the complaint prior to the running of the statute of limitations. Medford v. Haywood County Hospital Foundation, QUASI CONTRACTS AND RESTITUTION 18 (NCI4th). While an action based on unjust enrichment may be appropriate in the situation of a bigamous marriage, plaintiff was estopped from asserting such a claim where she knew for ten years that her marriage was bigamous and hid that fact from defendant. Lane v. Lane, RAPE AND ALLIED SEXUAL OFFENSES 83 (NCI4th). The evidence was sufficient for submission to the jury in a prosecution for first-degree rape and second-degree kidnapping of defendant's former girlfriend. State v. Jenkins, ROBBERY 84 (NCI4th). The evidence was sufficient for submission to the jury in a prosecution for attempted armed robbery by threatening to cut the victim with a broken bottleneck. State v. Harris, SCHOOLS 86 (NCI4th). Defendant board of education could not require the payment of an exit tuition fee of $200 as a condition to approving the transfer of a Greene County resident student to a school system in a different county. Streeter v. Greene County Bd. of Education, SEARCHES AND SEIZURES 14 (NCI4th). Defendant's garbage which was placed behind his house in an area barely visible from the road and which was contained in secured garbage bags and a roll-out cart with a closed lid was not exposed to public access so as to destroy his expectation of privacy, and the trash was illegally seized by a collector who acted as an agent of the police. State v. Hauser, 106 (NCI4th). Information supplied by four informants, separate and apart from the illegal search of defendant's garbage, provided probable cause necessary to support to a search warrant for defendant's house. State v. Hauser, TAXATION 82 (NCI4th). The Property Tax Commission exceeded its statutory authority in determining the value of property when it considered the ability of the property to produce income in its contaminated state and the cost to cure the contamination. In re Appeal of Camel City Laundry Co., 100 (NCI4th). The Property Tax Commission's failure to identify a county's witness as an expert when listing the county's evidence did not show that the Commission failed to consider the testimony of this witness to be expert testimony. In re Appeal of Camel City Laundry Co., TRIAL 105 (NCI4th). The trial court was bound by a prior judge's order granting partial summary judgment for defendant on the issue of notice in a foreclosure proceeding. McArdle Corp. v. Patterson, 113 (NCI4th). The trial court did not err in making findings of fact and conclusions of law in his order denying summary judgment where the court merely listed the undisputed facts, and the recitation of those facts was not error. McArdle Corp. v. Patterson, VENDOR AND PURCHASER 67 (NCI4th). The evidence was insufficient to show that defendant homeowner fraudulently concealed the fact that the property was subject to flooding. Clouse v. Gordon,