CONTENTS 7 June 1994 APPEAL AND ERROR 112 (NCI4th). The trial court's refusal to dismiss a suit against the State on the ground of sovereign immunity is immediately appealable. Colombo v. Dorrity, 471 (NCI4th). The abuse of discretion standard is the appropriate standard for appellate review of orders assessing the enforceability of forum selection clauses. Appliance Sales & Service v. Command Electronics Corp., AUTOMOBILES AND OTHER VEHICLES 464 (NCI4th). Defendant was not negligent in failing to avoid the truck in which plaintiff was riding when it went out of control during heavy rain and veered into the path of defendant's vehicle. Patterson v. Pierce, 564 (NCI4th). The trial court properly submitted an issue of willful or wanton conduct by plaintiff passenger based on his knowledge that the driver had been drinking and that his license had been revoked for driving while impaired. Anderson v. Austin, Evidence of plaintiff's habits with regard to alcohol, marijuana, and automobiles was relevant to defendants' claim of willful or wanton conduct on the part of plaintiff. Ibid. BURGLARY AND UNLAWFUL BREAKINGS 151 (NCI4th). The trial court did not err by instructing the jury that it could find defendant guilty of first-degree burglary if it found that he broke into the victim's home with the intent to commit a second-degree sexual offense when the indictment alleged that defendant intended to commit a first-degree sexual offense. State v. Roten, CONTRACTS 126 (NCI4th). The trial court erred in dismissing plaintiff's breach of contract claim where plaintiff alleged that defendant corporation, through its agent, orally offered a specific job to plaintiff for a stated duration and stated compensation and that plaintiff was not permitted to complete the contract's stated duration of employment. Brandis v. Lightmotive Fatman, Inc., COSTS 7 (NCI4th). Plaintiff was not the prevailing party and therefore was not entitled to attorney's fees in bringing a motion to protect its judgment and in bringing the present appeal. Custom Molders, Inc. v. American Yard Products, Inc., 31 (NCI4th). The trial court did not err in denying plaintiff's motion for attorney's fees under G.S. 6-21.1 where plaintiff's recovery of damages was in excess of $10,000. Davis v. Sellers, CRIMINAL LAW 104 (NCI4th). Changes in the police officers' report of defendant's statements omitting racial phraseology and substituting acceptable terminology did not violate G.S. 15A-903 by depriving defendant's counsel of the opportunity to voir dire prospective jurors regarding their reactions to the racial slurs prior to hearing those epithets during the officers' testimony. State v. Swann, 738 (NCI4th). A trial court is not required, after a jury has been empaneled but before evidence has been presented, to instruct the jury as to the State's burden of proof. State v. Roten, 762 (NCI4th). The trial court did not err by using the term "moral certainty" in its instruction on reasonable doubt. State v. Roten, 933 (NCI4th). The trial court had jurisdiction to amend the judgment on its own motion in consolidated cases even though defendant's motion for appropriate relief attacked only one particular judgment concerning the facially invalid habitual felon charge. State v. Harris, 975 (NCI4th). Defendant had no right to appeal from a motion for appropriate relief when the time for appeal from the conviction had expired and no appeal was pending, but defendant could seek review by a writ of certiorari. State v. Harris, 1098 (NCI4th). Evidence that defendant took a deadly weapon with him into the homicide victim's neighborhood was so closely connected to evidence possibly used by the jury to find that the killing was done with malice that it was error for the trial court to consider the use of the pistol again in sentencing. State v. Swann, 1680 (NCI4th). The trial court did not err in resentencing defendant in accordance with his original plea agreement after his original sentence was set aside since G.S. 15A-1335 did not prohibit a trial court from correcting the way in which it consolidated offenses during a sentencing hearing prior to remand. State v. Harris, State v. Hemby, 333 N.C. 331, does not apply to situations in which a defendant is sentenced to less than the presumptive term. Ibid. DEDICATION 11 (NCI4th). An 80-foot proposed thoroughfare on defendant's site plan which was submitted to plaintiff in order to get a special use permit was insufficient to constitute a dedication. Town of Cary v. Franklin-Sloan V.F.W. Post 7383, DIVORCE AND SEPARATION 119 (NCI4th). A reduction in the separate debt of a party to a marriage, caused by the expenditure of marital funds, is, in the absence of an agreement to repay the marital estate, neither an asset nor a debt of the marital estate, but is properly considered as a distributional factor. Adams v. Adams, 417 (NCI4th). The trial court erred in modifying a Georgia child support order by forgiving defendant for accrued arrearages under that order. Transylvania County DSS v. Connolly, EMINENT DOMAIN 231 (NCI4th). The defense of governmental immunity was not available to defendant city where plaintiff, who operated a solid waste collection service, alleged that the city negligently prevented plaintiff's receipt of just compensation for a taking of its property lost when the city annexed the area in which plaintiff did business. Denegar v. City of Charlotte, EVIDENCE AND WITNESSES 1994 (NCI4th). The trial court properly entered summary judgment for plaintiff in an action to recover sums which plaintiff had deposited with defendant company in anticipation of the purchase of stock where the written documents stated that each of the deposits was immediately refundable upon demand, since parol evidence of a verbal agreement as to the sale of company stock could not be admitted to vary the terms of the parties' final writing. Weber v. Holland, FRAUD, DECEIT, AND MISREPRESENTATION 4 (NCI4th). There was sufficient evidence from which the jury could infer that defendant wife acted as the agent of defendant husband in selling their home and in making a fraudulent statement, and the trial court thus did not err in refusing to charge the jury with regard to each defendant separately. Davis v. Sellers, 20 (NCI4th). The reasonableness of plaintiff buyer's reliance on the female defendant homeowner's statement that defendants' house had had no water problems since defendants had owned it was an issue for the jury to decide. Davis v. Sellers, 25 (NCI4th). Plaintiff's allegations of fraud were sufficient to withstand defendant corporation's motion to dismiss where plaintiff alleged that defendant misrepresented that plaintiff had a job in Wilmington for fourteen weeks paying $2,000 per week and that plaintiff relied on the false representation by moving to Wilmington and turning down two other offers of employment. Brandis v. Lightmotive Fatman, Inc., HIGHWAYS, STREETS, AND ROADS 66 (NCI4th). Plaintiff's action against a city for negligence in failing to clear vegetation which obscured a stop sign at an intersection where an accident occurred and failure to properly sign the intersection was barred by the two-year statute of limitations of G.S. 1-53(1). Colombo v. Dorrity, HOMICIDE 216 (NCI4th). There was sufficient evidence in a prosecution for involuntary manslaughter from which the jury could find that defendant's punch was the actual cause of a blunt force injury to decedent's head and that this assault started a series of events cumulating in the intoxicated decedent's death and thus constituted a proximate cause of the death. State v. Lane, 349 (NCI4th). Even if the evidence in a homicide prosecution clearly established all of the elements of first-degree murder and would not support a charge of second-degree murder, the trial court's submission of second-degree murder as a possible verdict did not constitute plain error where defendant failed to object at the charge conference or at any time before the jury retired. State v. Blue, 396 (NCI4th). The evidence did not require the trial court to give defendant's requested instruction that defendant's assault caused decedent to fall and strike his head on the pavement. State v. Lane, 424 (NCI4th). Because defendant admitted intentionally inflicting a wound upon the highly intoxicated decedent by hitting him in the head, the trial judge properly omitted the element of foreseeability in his proximate cause instruction. State v. Lane, ILLEGITIMATE CHILDREN 4 (NCI4th). The trial court erred in dismissing a paternity action due to the non-appointment of a guardian ad litem for the minor child. Smith v. Bumgarner, The minor child is not a necessary party in a paternity action, and the trial court erred in dismissing this action because the child was not a party to the action. Ibid. INJUNCTIONS 7 (NCI4th). The trial court properly entered summary judgment for defendants where plaintiff had received her requested relief of release of her medical files to her attorney. Lavelle v. Guilford County Area Mental Illness Auth., INSURANCE 254 (NCI4th). The trial court properly entered summary judgment for defendant insurer in an action on a credit life insurance policy where defendant showed that decedent's application for insurance contained a material misrepresentation that she had not consulted a doctor or been treated for a condition of the lungs at the time she signed the application. Tharrington v. Sturdivant Life Ins. Co., 528 (NCI4th). An underinsured highway vehicle can include a motor vehicle owned by the named insured, and policy provisions attempting to exclude such coverage are invalid and unenforceable. State Farm Mut. Auto. Ins. Co. v. Young, JUDGMENTS 651 (NCI4th). Plaintiff was not entitled to post-judgment interest on the treble damages portion of its judgment. Custom Molders, Inc. v. American Yard Products, Inc., LIENS 40 (NCI4th). A beneficiary of a deed of trust is not precluded by res judicata from challenging the priority of a claim of lien for labor and materials that has been reduced to judgment where the beneficiary was not a party to the prior action. Metropolitan Life Insurance Co. v. Rowell, Defendant contractor's lien for labor and materials had priority over the deed of trust held by plaintiff where defendant's claim of lien was in substantial compliance with G.S. 44A-12, and defects in the claim of lien were not found in defendant's judgment. Ibid. LIMITATIONS, REPOSE, AND LACHES 119 (NCI4th). The 39-year-old plaintiff produced sufficient evidence that her repression of memories and post-traumatic stress syndrome suffered as a result of her grandmother's alleged sexual, physical, and emotional abuse of her as a child rendered her "incompetent" so as to toll the statutes of limitations for her actions against her grandmother for battery and intentional infliction of emotional distress. Leonard v. England, NEGLIGENCE 108 (NCI4th). The evidence was insufficient to create a triable issue on the question of foreseeability in an action by plaintiff customer to recover for injuries sustained during an armed robbery at defendant's jewelry store. Purvis v. Bryson's Jewelers, PARTNERSHIP 8 (NCI4th). The evidence was sufficient to support the verdict that plaintiff wife and defendant husband were equal partners in a landscape business which was run from the parties' home. Wike v. Wike, SCHOOLS 158 (NCI4th). Petitioner's reinstatement was automatic when more than ninety days passed between the notice of suspension with pay and the notification of the recommendation to dismiss, but the superintendent's failure to reinstate petitioner was of no practical effect because school was not in session, petitioner was compensated, and a new suspension began shortly thereafter. Davis v. Public Schools of Robeson County, 245 (NCI4th). Respondent board of education did not violate G.S. 115C-325 during petitioner's dismissal hearing where petitioner received information concerning witnesses and documents in a timely fashion, petitioner was not prejudiced by the presence of a child witness's parents in the hearing room during the child's testimony, petitioner received timely notice of the decision, and the decision was clearly supported by the evidence. Davis v. Public Schools of Robeson County, STATE 22 (NCI4th). The State and its agencies can be issued citations for violations of the Occupational Safety and Health Act which are enforceable by proceedings before the Safety and Health Review Board. Brooks v. N.C. Dept. of Transportation, TAXATION 65 (NCI4th). Goods rented by the taxpayer to third parties did not retain their tax exempt status under G.S. 105-273(8a) because the taxpayer retained the right to sell the property to another party. In re Appeal of R. W. Moore Equipment Co., 66 (NCI4th). The taxpayer's treatment of equipment as income producing property rather than inventory rendered the equipment ineligible for a tax exclusion. In re Appeal of R. W. Moore Equipment Co., UNFAIR COMPETITION OR TRADE PRACTICES 8 (NCI4th). The Unfair and Deceptive Trade Practices Act does not apply to employer-employee relations. Brandis v. Lightmotive Fatman, Inc., 11 (NCI4th). A wife was not subject to unfair and deceptive practice liability from the sale of her own home because she held a real estate broker's license where she had never engaged in the business of selling real estate, but the wife's use of her real estate broker's license to obtain a referral fee for the sale of her home brought her transaction within the scope of G.S. 75-1.1. Davis v. Sellers, VENUE 7 (NCI4th). The trial court did not abuse its discretion in refusing to enforce the terms of a forum selection clause in the parties' contract where defendants made two representations that plaintiffs could sue defendants in the courts of North Carolina, and defendants are estopped from asserting the forum selection clause as a defense to the filing of the action in North Carolina. Appliance Sales & Service v. Command Electronics Corp., WILLS 165 (NCI4th). A devise of real property in testator's will did not adeem because of an agreement by the testator to sell the property; therefore, following testator's death, legal title passed to the devisees subject to the executory agreement, and when the purchaser withdrew from the agreement, the devisees acquired complete title to the real property. Morrison v. Grandy, ZONING 6 (NCI4th). Defendants were not estopped from arguing the issue of the location of their property by their failure to appeal the board of adjustment's determination that their property was located in Guilford County since that issue determines the fundamental question of subject matter jurisdiction. Guilford Co. Planning & Dev. Dept. v. Simmons, Plaintiff county failed to meet its burden of proving that defendants' chicken houses were located in Guilford County and were thus subject to Guilford County zoning laws. Ibid. 54 (NCI4th). The trial court erred in holding that respondent had received a vested right to a quarry permit under G.S. 160A- 385(b) where the case did not involve a building permit. Simpson v. City of Charlotte, Whether respondent had a vested right to a permit to construct a quarry depended upon whether respondent, acting in good faith, had made a substantial beginning toward its intended use of the land. Ibid. 67 (NCI4th). Two general zoning ordinances regarding noise and vibrations did not apply to respondent's application for a quarry permit. Simpson v. City of Charlotte, 121 (NCI4th). The validity of a section of a zoning ordinance allowing quarries to be established in any zoning district was not before the superior court in a review of a board of adjustment's issuance of a quarry permit. Simpson v. City of Charlotte,