CONTENTS FOR CASES FILED 15 June 1993 APPEAL AND ERROR 10 (NCI4th). An appeal was dismissed where the record contained a notice of appeal but nothing in the notice showed that plaintiff was given notice through service as required by App. R. 26(b). Hale v. Afro-American Arts International, 118 (NCI4th). Though the denial of a motion for summary judgment on the basis of immunity is immediately appealable, that issue was not before the court on appeal. Northwestern Financial Group v. County of Gaston, The denial of summary judgment based on res judicata is immediately appealable. Ibid. 342 (NCI4th). Plaintiff appellees' purported cross-assignments of error were ineffectual where they did not present an alternative basis to support the trial court's decision. Durham Herald Co. v. N.C. Low-Level Radioactive Waste Mgmt. Auth., 476 (NCI4th). The denial of a motion for summary judgment is not reviewable during appeal from a final judgment rendered in a trial on the merits. Ragan v. Hill, ARREST AND BAIL 64 (NCI4th). The warrantless arrest of defendant for possession of cocaine was based on probable cause and was lawful where officers independently corroborated information received from confidential informants. State v. Trapp, CONSTITUTIONAL LAW 51 (NCI4th). A local taxpayer owning shares of corporate stock had standing to challenge the constitutionality of the North Carolina intangibles tax statute on the ground that the tax violates the Commerce Clause of the U.S. Constitution. Fulton Corp. v. Justus, 92 (NCI4th). There was no evidence of discrimination against the taxpayer in the 1990 valuation of its cemetery property. In re Appeal of Lee Memory Gardens, CORPORATIONS 5 (NCI4th). The trial court erred by concluding that a corporate entity should be disregarded where plaintiff contracted with the corporation, not the individual, plaintiff presented no evidence that the individual used the corporation to conduct personal business or for personal benefit, plaintiff's bare assertion that the corporation was used to defraud plaintiff, without supporting evidence, does not support the conclusion that the individual exercised excessive control to escape liability, and the determination that the individual's second corporation was used to escape liability was contrary to the law because plaintiff's contracts were with the first corporation. Statesville Stained Glass v. T.E. Lane Construction & Supply, 227 (NCI4th). The trial court's determination that Temple Construction was a successor corporation to Lane Construction and is therefore liable for Lane's debts was not supported by the evidence where there was no evidence of any transfer of assets from Lane Construction to Temple Construction. Statesville Stained Glass v. T.E. Lane Construction, CRIMINAL LAW 360 (NCI4th). The trial court did not abuse its discretion by limiting the testimony of a defense witness who violated a sequestration order. State v. Williamson, 1039 (NCI4th). The trial court erred by imposing a suspended sentence of six months imprisonment where defendant was convicted of communicating threats, given a PJC on conditions which included continued mental health treatment and not contacting the victim, the State subsequently moved that defendant be held in contempt for contacting the victim, and the six month sentence was imposed. The condition that defendant continue psychiatric treatment went beyond his obligation to obey the law and was thus punishment, so that the first entry was a judgment rather than a PJC, and violation of that judgment was contempt punishable by imprisonment up to thirty days, or a fine, or any combination of the two. State v. Brown, 1054 (NCI4th). The trial court's failure to continue prayer for judgment from 3 June 1991 until a later specified time did not divest the trial court of jurisdiction to sentence defendant at a later session of court, a delay of sixty days between defendant's guilty plea and the sentencing was not unreasonable, and it was immaterial that the sentence was entered by a trial judge different from the judge who presided over the taking of the guilty plea. State v. Degree, 1092 (NCI4th). Defendant did not preserve for appellate review the alleged error by the trial court in finding as a nonstatutory aggravating factor that defendant intended to kill when he assaulted the victims. State v. Degree, 1497 (NCI4th). The presence and participation of police officers in a search conducted by a probation officer pursuant to a condition of probation did not render the search invalid. State v. Church, DIVORCE AND SEPARATION 172 (NCI4th). The trial court properly dismissed claims for alimony and equitable distribution where plaintiff filed an action for alimony, equitable distribution, and absolute divorce, filed a separate action for absolute divorce, judgment of absolute divorce was granted while the original claims were pending, plaintiff entered a voluntary dismissal without prejudice of her original claims, and subsequently filed a second action for alimony and equitable distribution. The claims now pursued are not the claims which were pending when judgment of divorce was entered; those claims terminated and no suit was pending thereafter when plaintiff voluntarily dismissed the original claim. Stegall v. Stegall, EVIDENCE AND WITNESSES 373 (NCI4th). In a prosecution of defendant for second degree rape of his stepdaughter, testimony by another stepdaughter concerning earlier rapes committed by defendant against her was admissible to show a common plan or scheme on the part of defendant to sexually assault his stepdaughters. State v. Matheson, 1026 (NCI4th). Hearsay statements made by a person arrested at the same time and place as defendant to a second person arrested at the same time and place that he felt bad about defendant's having been arrested because the LSD was in fact his and not defendant's were admissible as a statement against penal interest, but the first person's statement to defendant indicating that he knew that the LSD was not defendant's but stopping short of claiming ownership was not admissible as being against the first person's penal interest. State v. Eggert, JUDGMENTS 237 (NCI4th). The defendants in two actions were identical for res judicata purposes where they were sued in their official capacities as members of county boards in the first action and were sued in both their official and individual capacities in the second action. Northwestern Financial Group v. County of Gaston, 313 (NCI4th). Where plaintiff developers of a mobile home park sought equitable relief in a 1988 action which ultimately resulted in a permanent injunction requiring defendants to issue a permit to plaintiffs under defendant county's 1986 instead of its 1987 mobile home park ordinance, and plaintiff subsequently brought an action in 1990 seeking monetary damages resulting from the delay, the Court of Appeals could not determine if the two actions were part of the same claim and therefore whether the second action was barred by res judicata. Northwestern Financial Group v. County of Gaston, Where a developer obtains a building permit which is later revoked, the developer must bring claims for equitable relief and monetary damages in the same suit to avoid dismissal of the monetary damages claim on the ground of res judicata except (1) where a plaintiff needs to act quickly, and (2) where the damages have not yet been incurred. Ibid. LANDLORD AND TENANT 86 (NCI4th). The evidence was sufficient to support the amount awarded by the trial court to defendant as back rent for the period that plaintiff was in possession of the disputed property where defendant testified that $400 per month was the fair market rental value of the property and plaintiff failed to present any contradicting evidence. Brickhouse v. Brickhouse, LIMITATIONS, REPOSE, AND LACHES 26 (NCI4th). The trial court improperly dismissed a malpractice action against a law firm under Rule 12(b)(6) where defendant failed to produce documents as ordered, so that the underlying suit against the plaintiff in this action (the defendant in the underlying action) resulted in a default judgment and a money verdict against plaintiff and plaintiff alleged that defendant's negligent representation continued to the time defendant ceased to represent plaintiff. Taking plaintiff's allegations as true, the last wrongful act may have occurred within the three-year statute of limitations. Southeastern Hospital Supply Corp. v. Clifton & Singer, 27 (NCI4th). Plaintiffs' claim for injury sustained in a plane crash allegedly resulting from defendant aircraft manufacturer's negligence in preparing and producing an instruction manual to accompany the aircraft was a products liability action in which the product was the instruction manual, and the date of sale of the manual was the date which would trigger the statute of repose. Driver v. Burlington Aviation, Inc., 69 (NCI4th). Plaintiff's claim against defendant administrator, whose son's negligence caused the automobile accident in which plaintiff was severely injured, was barred as a matter of law by G.S. 28A-19-3(b) except to the extent of the son's liability insurance since plaintiff did not file the claim within six months. Ragan v. Hill, MASTER AND SERVANT 69.3 (NCI3d). The evidence was sufficient to support the Industrial Commission's finding that a Form 26 agreement for plaintiff to be paid permanent partial disability of the back for a period of forty-five weeks was not entered into by reason of misrepresentation. Vernon v. Steven L. Mabe Builders, The Industrial Commission properly determined that plaintiff was not entitled to have a Form 26 agreement set aside pursuant to G.S. 97-17 on the basis of mutual mistake where plaintiff alleged that neither party was aware of a Supreme Court decision allowing election of remedies. Ibid. Though the Industrial Commission must determine that compromise settlements are fair and equitable and in the best interests of the parties before they are approved, there is no requirement that the Commission must determine fairness before approving a Form 26 agreement. Ibid. NARCOTICS, CONTROLLED SUBSTANCES, AND PARAPHERNALIA 34 (NCI4th). A defendant can be convicted and sentenced for trafficking by transporting and by possession as two separate crimes when the same cocaine is involved. State v. McRae, 105 (NCI4th). The evidence was sufficient to prove the existence of one master agreement to deal in more than 100 but less than 2,000 pounds of marijuana although the course of dealing between the two main participants extended over a three-and-a-half-year period. State v. Williamson, Evidence of the cumulative quantity of controlled substance that a defendant sells in the course of a single open-ended conspiracy is sufficient to support his conviction for conspiracy to sell that quantity even though the agreement of the conspirators is silent as to the exact quantity. Ibid. 124 (NCI4th). Evidence that defendant removed drugs from a dwelling house and carried them to a car by which he left the premises showed "substantial" movement sufficient to sustain a charge of trafficking by transporting. State v. McRae, 193 (NCI4th). Where defendant was charged with trafficking in cocaine by possession and the evidence tended to show that defendant purchased cocaine from a supplier with an undercover agent's money and then gave the cocaine to the agent, the trial court did not err in refusing to submit to the jury the lesser offense of felonious possession. State v. McRae, NEGLIGENCE 9 (NCI4th). Plaintiffs could not recover on a theory of negligent misrepresentation in an action to recover for injuries sustained in a plane crash, but allegations of the amended complaint were sufficient to state a claim based upon traditional negligence rules. Driver v. Burlington Aviation, Inc., 75 (NCI4th). Plaintiffs' complaint was sufficient to state a claim for negligent infliction of emotional distress but not for intentional infliction of emotional distress in an action to recover for personal injuries sustained in a plane crash allegedly resulting from defendant's negligence in failing to provide a correct and complete instruction manual to accompany the aircraft. Driver v. Burlington Aviation, Inc., 86 (NCI4th). Plaintiffs' complaint was sufficient to state a claim of simple negligence but not gross negligence based upon defendant plane manufacturer's failure to provide complete and accurate instruction concerning carburetor icing and slow flight operation of the aircraft in its instruction manual. Driver v. Burlington Aviation, Inc., PRODUCTS LIABILITY 5 (NCI4th). Plaintiffs' complaint was insufficient to state a claim for strict liability where plaintiffs claimed that defendant failed to provide adequate warnings and information in an instruction manual written to accompany an aircraft which crashed while one plaintiff was a passenger. Driver v. Burlington Aviation, Inc., RULES OF CIVIL PROCEDURE 41.1 (NCI3d). A voluntary dismissal filed in the correct county is effective even though it recites a different county. Robinson v. General Mills Restaurants, 60.3 (NCI3d). A voluntary dismissal without prejudice can act as a final adjudication for purposes of relief pursuant to Rule 60(b) once the one-year period for refiling an action has elapsed and the action can no longer be resurrected. Robinson v. General Mills Restaurants, SCHOOLS 3 (NCI3d). An act to consolidate school administrative units in Guilford County or to provide for two administrative units in that county, subject to a referendum, was not a local act even though it dealt with education only in Guilford County rather than throughout the state. Guilford Co. Bd. of Education v. Guilford Co. Ed. of Elections, An act to consolidate the school administrative units in Guilford County did not violate Art. IX, 2(1) of the N. C. Constitution providing for a uniform system of free public schools. Ibid. The N. C. Constitution does not deny the General Assembly the power to provide a minimum funding level for merging school systems during the transition to a consolidated system and does not require that funding of public schools in all counties in the state be identical or addressed through a single uniform law. Ibid. An act to consolidate school administrative units in Guilford County did not violate Art. IX, 2(2) of the N. C. Constitution. Ibid. 13.2 (NCI3d). A school teacher was not denied due process in a dismissal hearing before the school board because the superintendent's attorney who presented the case against her was a member of the same firm as the attorney who advised the board at the hearing. Hope v. Charlotte-Mecklenburg Bd. of Education, Even though a teacher received a copy of a document showing standardized writing test results only moments before her dismissal hearing, there was no violation of the statutory notice requirement where the document was used only to refresh a school principal's recollection and was never presented into evidence. Ibid. The evidence supported a school board's dismissal of a seventh grade social studies teacher for insubordination based upon the teacher's refusal to follow the principal's instruction to cease a doll-making project in her class because it had no educational value, the teacher's refusal to meet with the principal to work on a professional development plan, and the teacher's refusal to implement the plan developed for her by the principal. Ibid. SEARCHES AND SEIZURES 1 (NCI3d). An officer's insertion of a key into a lock and unsuccessful attempt to look through a window did not constitute an unlawful search. State v. Church, 8 (NCI3d). The warrantless arrest of defendant was based on probable cause and was lawful, and the trial court properly denied defendant's motion to suppress cocaine found on her person subsequent to the arrest, where officers independently corroborated information received from confidential informants. State v. Trapp, 33 (NCI3d). Inadvertence is not a necessary condition of a lawful search pursuant to the "plain view" doctrine, and officers who went to defendant's property without a warrant but with suspicion that marijuana was grown there could properly seize marijuana which they found growing in the yard pursuant to the plain view doctrine. State v. Church, STATE 1.2 (NCI3d). Papers and items generated by the Low-Level Radioactive Waste Management Authority's contractors and consultants become public records only when they are received by the Authority. Durham Herald Co. v. N.C. Low-Level Radioactive Waste Mgmt. Auth., STATUTES 2.7 (NCI3d). An act to consolidate school administrative units in Guilford County or to provide for two administrative units in that county, subject to a referendum, was not a local act even though it dealt with education only in Guilford County rather than throughout the state. Guilford Co. Bd. of Education v. Guilford Co. Bd. of Elections, An act to consolidate the school administrative units in Guilford County did not violate Art. IX, 2(1) of the N. C. Constitution providing for a uniform system of free public schools. Ibid. The N. C. Constitution does not deny the General Assembly the power to provide a minimum funding level for merging school systems during the transition to a consolidated system, and does not require that funding of public schools in all counties in the state be identical or addressed through a single uniform law. Ibid. TAXATION 25.4 (NCI3d). The Property Tax Commission did not err by ruling that 7.14 acres of undeveloped land held by a corporation licensed to operate a perpetual care cemetery was not tax exempt. In re Appeal of Lee Memory Gardens, Although the taxpayer contended that the Property Tax Commission erred in approving the appraisal method used by the County when it valued the taxpayer's undeveloped cemetery property, the findings of the Property Tax Commission were supported by competent, material, and substantial evidence. Ibid. 25.11 (NCI3d). The scope of review in cases that have been appealed from the Property Tax Commission is the same as under the Administrative Procedure Act; the Commission's findings are conclusive if, upon review of the whole record, they are supported by competent, material, and substantial evidence. In re Appeal of Lee Memory Gardens, 32 (NCI3d). The taxable percentage provision of the statute levying an intangibles tax on ownership of corporate stock violates the Commerce Clause of the U.S. Constitution and will be stricken from the statute, and the revised statute will apply prospectively to the 1994 tax year. Fulton Corp. v. Justus, UNIFORM COMMERCIAL CODE 10 (NCI3d). Plaintiffs were not entitled to assert claims for breach of express and implied warranties arising out of the sale of an instruction manual to accompany an aircraft which crashed and injured plaintiffs since the manual was sold to the pilot of the aircraft and the seller's warranty did not extend to plaintiffs. Driver v. Burlington Aviation, Inc., WILLS 3.1 (NCI3d). There is no requirement that the attesting witness must "intend" to witness the will of the testator. Brickhouse v. Brickhouse, The fact that an attesting witness witnessed testator's mark and signed the will in a location different from the other two witnesses did not preclude the witness from being considered an attesting witness. Ibid.