CONTENTS 21 JUNE 1994 ADMINISTRATIVE LAW AND PROCEDURE 65 (NCI4th). A superior court judgment was vacated and remanded where the superior court treated G.S. 126-37(b) as creating a cause of action in which the court could make its own findings of fact and substitute its own judgment for the Commission's and, in doing so, exceeded its jurisdiction over state employee grievances. Hill v. Morton, APPEAL AND ERROR 89 (NCI4th). An interlocutory order denying a motion for class certification affects a substantial right and is immediately appealable. Dublin v. UCR, Inc. 118 (NCI4th). An interlocutory order denying a motion for summary judgment did not affect a substantial right and thus was not immediately appealable. Dublin v. UCR, Inc., 119 (NCI4th). Defendants' appeal from the allowance of summary judgments for plaintiffs on defendants' counterclaims was dismissed as interlocutory where the trial court made no certification as required by G.S. 1A-1, Rule 54(b), and defendant presented neither argument nor citation to show that it had the right to appeal the dismissal. Jeffreys v. Raleigh Oaks Joint Venture, 418 (NCI4th). Plaintiff's appeal was deemed abandoned where he failed to provide any assignments of error for review and present those in his brief. Wiggins v. Triesler Co., BURGLARY AND UNLAWFUL BREAKINGS 121 (NCI4th). The trial court did not err by denying defendant's motion to dismiss the charge of felonious possession of implements of housebreaking where, although the tools possessed by defendant were capable of legitimate use, a legitimate inference can be drawn that defendant possessed the screwdriver and ice pick for the purpose of breaking into the building. State v. Robinson, 167 (NCI4th). The trial court did not err in a felonious breaking or entering prosecution by not submitting nonfelonious breaking or entering. State v. Robinson, CONTRACTS 148 (NCI4th). The trial court erred by granting plaintiff's motion for a directed verdict on a breach of contract claim where plaintiff ordered a tanker truck from defendant for shipment of a cleaning compound and plaintiff's customer rejected the shipment because the compound was contaminated. Viewing the evidence in the light most favorable to plaintiff, an issue of fact exists as to whether defendant breached the contract. Ace Chemical Corp. v. DSI Transports, Inc., CORPORATIONS 208 (NCI4th). It would be inequitable to permit a transfer of all of the assets of a corporation defending a class action to a newly formed corporation so as to make the original corporation judgment proof and to allow the successor corporation to escape the class action claims. Dublin v. UCR, Inc. COSTS 9.1 (NCI4th). The trial court did not err by taxing costs in a previous action; the filing of a notice of dismissal does not terminate the court's authority to enter orders apportioning and taxing costs. Sealey v. Grine, 28 (NCI4th). The trial court did not err by denying plaintiff's claim for attorney's fees under G.S. 6-21(2) in an action against an estate involving the division of an income tax refund. Brantley v. Watson, 47 (NCI4th). The trial court did not err in an action arising from an allegedly negligent lithotripsy by taxing as costs deposition expenses where there was no assignment of error to the finding that the costs were reasonable and necessary. However, the court erred in taxing as costs expenses for copies of x-rays and records related to depositions. Sealey v. Grine, COURTS 87 (NCI4th). A second judge was not authorized by Rule 23 to review and modify another judge's prior order for class certification, but since the class certification order was interlocutory, a subsequent judge could modify the order for circumstances which changed the legal foundation for the prior order. Dublin v. UCR, Inc., CRIMINAL LAW 1079 (NCI4th). The trial court did not abuse its discretion when sentencing defendant for attempted first-degree statutory rape and attempted first-degree sexual offense by imposing a sentence greater than the statutory norm. State v. Robertson, 1169 (NCI4th). The trial court did not err when sentencing defendant for attempted first-degree statutory rape and attempted first-degree sexual offense by finding in aggravation that defendant committed the offenses while on pretrial release for a felony charge where he was ultimately acquitted of the prior charge. State v. Robertson, 1234 (NCI4th). The trial court did not err when sentencing the seventeen-year-old defendant for attempted first-degree statutory rape and attempted first-degree sexual offense by not finding defendant's immaturity as a mitigating factor; age alone is not sufficient to support this factor and defendant presented no evidence on the effect of his immaturity upon his culpability for the offense. State v. Robertson, DEEDS 33 (NCI4th). A general warranty deed describing only land was sufficient, as between the grantor and the grantees, to transfer title to a mobile home affixed to the land. Hughes v. Young, 97 (NCI4th). Where a general warranty deed was intended by the parties to convey both the described land and a mobile home affixed thereto, a lien on the mobile home constituted an "encumbrance" which breached a covenant against encumbrances in the deed. Hughes v. Young, DIVORCE AND SEPARATION 129 (NCI4th). The trial court erred in an equitable distribution action by finding that defendant's retirement pension was vested as of the date the parties separated where defendant was not guaranteed the right to receive retirement benefits at the time the parties separated because he had served only seventeen years in the military and the retirement benefits of an enlisted member of the United States Army vest after twenty years of service. George v. George, ELECTION OF REMEDIES 3 (NCI4th). The trial court erred by requiring plaintiff to choose its remedy before submitting the case to the jury in an action involving a contaminated tanker truck in which plaintiff brought both contract and negligence claims. Ace Chemical Corp. v. DSI Transports, Inc., EXECUTORS AND ADMINISTRATORS 86 (NCI4th). The trial judge did not err by dividing an income tax refund between a surviving spouse and the estate where the funds in question fell squarely under the control of G.S. 28A- 15-6 and G.S. 28A-15-9 and the trial judge divided the funds precisely by the terms of those statutes. Brantley v. Watson, FIXTURES 1 (NCI4th). A general warranty deed describing only land was sufficient, as between the grantor and the grantees, to transfer title to a mobile home affixed to the land. Hughes v. Young, EVIDENCE AND WITNESSES 293 (NCI4th). The trial court did not err in a prosecution for attempted first-degree statutory rape and attempted first-degree sexual offense in allowing the victim to testify that defendant threatened her by saying that if she told anyone what he was going to do, he was going to hurt her like he hurt Koda, whom defendant was then charged with murdering, where defendant was subsequently acquitted at trial of the murder. The probative value of defendant's statement was to show that the victim was scared of defendant as well as why she did not scream or make any noise and does not depend on the proposition that defendant in fact hurt Koda. State v. Robertson, 368 (NCI4th). There was no prejudicial error in the admission in a prosecution for feloniously breaking or entering a health club and possession of housebreaking tools where the trial court allowed the State to introduce the testimony of a salesperson at a store that defendant had entered the stockroom and office area and had stolen a cash box, but had been acquitted because the arresting officer was not present when the case was tried. State v. Robinson, 886 (NCI4th). The trial court did not err in a prosecution for attempted first-degree statutory rape and attempted first-degree sexual offense by allowing the State's medical expert to testify about statements the victim made to her during a physical examination where the statements corroborated the earlier testimony of the victim. State v. Robertson, 2337 (NCI4th). The trial court did not err in a prosecution for attempted first-degree statutory rape and attempted first- degree sexual offense by excluding the testimony of defendant's expert psychologist on the suggestibility of child witnesses where the witness had never examined or evaluated the victim or anyone else connected with this case. State v. Robertson, 3020 (NCI4th). The trial court did not err in a prosecution for attempted first-degree statutory rape and attempted first- degree sexual offense by allowing the State to ask defendant whether he had a midnight curfew where defendant initially denied having a curfew, was shown his pretrial release papers for another offense out of the presence of the jury, and testified that he had not remembered having a curfew but remembered now. State v. Robertson, FRAUDULENT CONVEYANCES 39 (NCI4th). Where plaintiffs filed a class action against a corporation before that corporation's assets were transferred to a newly formed corporation, the transfer was ineffective as to plaintiffs' claims because the corporations failed to comply with the notice to creditors requirements of the bulk transfer provisions of the UCC. Dublin v. UCR, Inc., HUSBAND AND WIFE 23 (NCI4th). A wife could not be held liable for breach of any covenants in a deed conveying property owned solely by the husband where she joined in the execution of the deed only to release her inchoate rights. Hughes v. Young, INFANTS AND MINORS 31 (NCI4th). The district court exceeded its authority in vesting legal and physical custody of Dylan Autry, a Willie M. class member, with the Division of Mental Health, Developmental Disabilities and Substance Abuse Services within the Department of Human Resources, and by directing the Division to provide a plan and implementation for Dylan, because the federal district court has continuing jurisdiction over the question of appropriate treatment of Willie M. children and because of the role of the Review Panel in evaluating the compliance of the State with the consent order. In re Autry, INSURANCE 42 (NCI4th). There was no statutory prohibition against recovery by a commercial umbrella insurer against the Insurance Guaranty Association on the grounds of equitable subrogation. N.C. Insurance Guaranty Assn. v. Century Indemnity Co., 43 (NCI4th). The trial court properly granted summary judgment for defendant Century Indemnity where a suit was filed against Long Manufacturing as a result of an automobile accident; Long was insured by AMLIC under a comprehensive general liability policy and by Century under a commercial umbrella liability policy; AMLIC was declared insolvent; and a dispute developed between the Insurance Guaranty Association and Century as to whether Century's commercial umbrella policy was required to drop down and become primary. N.C. Insurance Guaranty Assn. v. Century Indemnity Co., 496 (NCI4th). The Financial Responsibility Act did not mandate that a garage policy provide liability coverage where dealer plates constituted the sole relationship between the car and the dealership; standing alone, this connection is too weak to impose mandatory liability coverage. McLeod v. Nationwide Mutual Ins. Co., 528 (NCI4th). The claimants were not entitled to intrapolicy stacking in an action arising from an automobile accident where there was no dispute that this was a nonfleet policy and the two vehicles involved were a Mack truck and a low boy trailer; under the version of G.S. 58-40-10(1) in effect at the time of the accident, it is more than obvious that the low boy trailer is not a private passenger motor vehicle. Nationwide Mutual Ins. Co. v. Mabe, 532 (NCI4th). The trial court in an automobile accident case correctly held that an "owned vehicle" exclusion in the UIM section of a Farm Bureau automobile insurance policy was not enforceable where, but for the owned vehicle exclusion, the claimants would be first class insured persons. Nationwide Mutual Ins. Co. v. Mabe, 536 (NCI4th). There was no coverage under Sanford Toyota's garage policy for an automobile accident involving an employee's vehicle bearing Sanford Toyota's dealer tags where there was no indication that the automobile was being used in Sanford Toyota's business, it cannot reasonably be asserted that "ownership" and "use" have any application since Sanford Toyota neither owned nor used the automobile, plaintiff has made no contention that Sanford Toyota was maintaining the vehicle, permitting dealer tags to be affixed to an employee's vehicle was in no way necessary to Sanford Toyota's business, and there was no incidental business purpose furthered by the permissive use of the tags. McLeod v. Nationwide Mutual Ins. Co., 690 (NCI4th). The trial court erred in an action arising from an automobile accident by ordering that Nationwide pay prejudgment interest; there is no statutory duty which requires a liability insurance carrier to pay prejudgment interest in addition to its limit of liability under the policy. A liability carrier's obligation to pay prejudgment interest in addition to its stated limits is governed solely by the language in the policy. Nationwide Mutual Ins. Co. v. Mabe, 963 (NCI4th). The trial court did not err by granting summary judgment for defendant Century on its counterclaim under the doctrine of equitable subrogation where Century was a commercial umbrella insurer; the insured's primary insurer became insolvent; there was a claim as a result of an automobile accident; and there was a dispute between the Insurance Guaranty Association and Century as to which would provide primary coverage. N.C. Insurance Guaranty Assn. v. Century Indemnity Co., JUDGMENTS 115 (NCI4th). Defendant's offer of judgment was remanded for entry of an order for $45,001.00 plus remaining costs as determined by the trial court where the offer was for "$45,001.00 together with costs accrued as of the date hereof"; any ambiguity in the offer must be construed against the drafter. Craighead v. Carrols Corp., 547 (NCI4th). A claim for equitable distribution constitutes a meritorious defense to an action for absolute divorce for the purpose of obtaining relief from the judgment of absolute divorce under Rule 60(b)(1), and where the trial court found that defendant's failure to file a claim for equitable distribution was the result of excusable neglect, the court properly set aside the divorce judgment and permitted defendant to file her answer and counterclaim for equitable distribution. Baker v. Baker, LABOR AND EMPLOYMENT 236 (NCI4th). The trial court did not err by denying defendant's motions for a directed verdict, judgment notwithstanding the verdict, and a new trial where plaintiff was injured as a passenger in a vehicle involved in a collision on the Albemarle Sound Bridge; the other vehicle was driven by defendant Smith, who was an employee of defendant Cianbro; defendant Cianbro's handbook included the statement that no person under the influence of alcohol would be allowed on the work site; and Cianbro employees had gathered in the parking lot after work on the day of the collision to drink beer. Peal v. Smith, LIMITATIONS, REPOSE, AND LACHES 150 (NCI4th). The trial court correctly refused to allow an amendment to a complaint adding a party to relate back where the new defendant could not have had notice prior to the expiration of the statute of limitations. Crossman v. Moore, MUNICIPAL CORPORATIONS 49 (NCI4th). The trial court did not err in an annexation challenge by finding that the City had substantially complied with G.S. 160A-49 where a hearing was continued without further advertisement when a number of Council members did not return following a recess. Thrash v. City of Asheville, There was no procedural violation warranting remand of an annexation ordinance where the materials delivered to the superior court did not include a certificate that notice of the public hearing was mailed to all property owners in the affected area as required by G.S. 160A-49(b) but there was ample evidence that the notices were mailed and no contention that the property owners did not receive the notices. Ibid. 58 (NCI4th). The superior court did not err in an annexation challenge by concluding that the City appropriately found that the area to be annexed was developed for urban purposes where the finding was not made on the date of annexation. Thrash v. City of Asheville, 77 (NCI4th). The petitioners challenging an annexation ordinance did not establish error on the issues of contiguous boundaries and whether the City followed natural topographic features and streets. Thrash v. City of Asheville, 96 (NCI4th). An annexation was not prohibited by the fact that the annexed area consumes the majority of a water and sewer district which recently constructed water and sewer facilities using funds borrowed from the Farmers Home Administration. Thrash v. City of Asheville, 121 (NCI4th). Where the record of annexation proceedings shows substantial compliance with the requirements of Chapter 160A, the burden is on petitioners to prove failure to meet those requirements or an irregularity in the proceedings which materially prejudiced their substantive rights. Thrash v. City of Asheville, NEGLIGENCE 132 (NCI4th). The trial court erred by granting plaintiff's motion for judgment notwithstanding the verdict and awarding plaintiff damages in an action arising from a contaminated tanker truck where there is more than a scintilla of evidence supporting the jury's verdict that plaintiff was contributorily negligent. Ace Chemical Corp. v. DSI Transports, Inc., 168 (NCI4th). The trial court correctly instructed the jury on the appropriate principles of common law negligence in an action arising from an automobile collision where the corporate defendants had allowed workers to drink beer on the job site after work in violation of a provision in an employee policy manual and one of the workers had subsequently collided with plaintiff's car. Peal v. Smith, PARTIES 70 (NCI4th). A second judge was not authorized by Rule 23 to review and modify another judge's prior order for class certification, but since the class certification order was interlocutory, a subsequent judge could modify the order for circumstances which changed the legal foundation for the prior order. Dublin v. UCR, Inc., The trial court erred by vacating another judge's order of class certification as to the original defendants and by decertifying the class against those defendants based on the addition of new defendants and purported new claims against them. Ibid. The trial court erred by denying class certification as to the third-party defendant insurer where plaintiffs alleged that insurance premiums provided by rent-to-own contracts with the original defendants exceeded amounts permitted by law, the original defendants impleaded the third-party defendant insurer, and plaintiffs then asserted a crossclaim against the insurer. Ibid. The trial court erred by refusing to extend class action certification as to a newly formed corporation in an action based upon alleged excessive finance charges, insurance premiums and default charges provided in rent-to-own contracts with the original corporate defendants where the assets of the original defendants were transferred to the newly formed corporation. Ibid. The trial court could properly exercise its discretionary authority by refusing to extend class action certification to a lender who transferred the original corporate defendants' assets to a newly formed corporation and to the individual defendants who where officers and the sole shareholder of the original corporate defendants. Ibid. PLEADINGS 367 (NCI4th). There was no abuse of discretion in a negligence action which included a school principal and a board of education as defendants where defendants filed a motion to dismiss because plaintiffs failed to allege that the board had purchased liability insurance and waived governmental immunity. Gunter v. Anders, PROCESS AND SERVICE 54 (NCI4th). The trial court had the discretion, upon a showing of excusable neglect, to grant an extension of time under Rule 6(b) to serve a dormant summons where neither an endorsement nor an alias or pluries summons was issued within the 90-day period specified by Rule 4(e) but the original summons and complaint were served on defendant with the 90-day period. Hollowell v. Carlisle, SCHOOLS 172 (NCI4th). The trial court properly dismissed under G.S. 1A-1, Rule 12(b)(6) a complaint which included a school principal and school board as defendants but failed to allege that the board had purchased liability insurance and waived governmental immunity where plaintiff contended that an affirmative allegation of the waiver of governmental immunity to the extent of liability coverage should no longer be required under the Rules of Civil Procedure. Gunter v. Anders, STATE 10 (NCI4th). Assuming that an executive session was held by a board of adjustment in violation of G.S. 143-318.11, the trial court did not abuse its discretion in refusing to declare the decision of the board null and void where the court concluded that the alleged executive session had little effect on the substance of the challenged action. Dockside Discotheque v. Bd. of Adjustment of Southern Pines, UNFAIR COMPETITION OR TRADE PRACTICES 39 (NCI4th). The trial court properly granted summary judgment for defendant on an unfair practices claim which arose from contamination of plaintiff's cleaning compound in defendant's tanker truck. Ace Chemical Corp. v. DSI Transports, Inc., 65 (NCI4th). A district court ruling that defendant had violated the provisions of G.S. 66-98 in the sale of a janitorial franchise by failing to provide required information was remanded for entry of findings on the evidence offered at trial because the court did not make any mention of representations made by defendant to plaintiff of the franchise's income or earning potential or defendant's failure to disclose to plaintiff data substantiating those claims. Wiggins v. Triesler Co., WATERS AND WATERCOURSES 57 (NCI4th). The trial court did not err in a trespass action by granting defendant's motion to dismiss for lack of subject matter jurisdiction, but did err by allowing a motion to dismiss for failure to state a claim upon which relief may be granted, where the Division of Coastal Management issued a CAMA permit for construction of a pier, plaintiff did not request a contested case hearing, and plaintiff began this action 22 months later, alleging that defendant's pier encroaches the riparian boundary between plaintiffs' and defendants' property. The location of the boundary was settled as a part of the DCM permitting process. Flowers v. Blackbeard Sailing Club, WORKERS' COMPENSATION 231 (NCI4th). The Industrial Commission did not err by concluding that plaintiff failed to prove disability as a result of her occupational disease after 13 June 1989 were plaintiff showed that she was unable to return to the same employment or any other employment that would expose her to chemical or other respiratory irritants, but plaintiff failed to show that she was incapable of earning the same wages she had earned before her injury in any other employment after 13 June 1989. Grantham v. R. G. Barry Corp., 235 (NCI4th). The Industrial Commission erred by finding that plaintiff laborer/welder was capable of earning $12.00 per hour, the same or greater wage than plaintiff was earning prior to his compensable knee injury, based upon evidence that plaintiff had obtained a temporary job paying $12.00 per hour. Daughtry v. Metric Construction Co., 327 (NCI4th). The Industrial Commission erred in a workers' compensation action by finding that an insured did not have notice of cancellation of the workers' compensation policy where the evidence supports a finding that the notice of intent to cancel was received by the insured at least ten days prior to the date of cancellation. Wilson v. Claude J. Welch Builders, 472 (NCI4th). The Industrial Commission did not abuse its discretion by awarding plaintiff's medical expert a witness fee of $350 and by denying plaintiff's motion to increase this fee to $3,197.60 where the witness spent only three hours testifying at a deposition and reviewing the file in preparation for the deposition, and other charges billed to plaintiff by the witness were for expert toxicological support for her claim. Grantham v. R. G. Barry Corp., ZONING 47 (NCI4th). Petitioner was not entitled to use its property in a town's central business district for topless entertainment as a nonconforming use allowed by the town's development ordinance where the property had not been used for topless entertainment in eleven months at the time the ordinance was amended to prohibit "special use entertainment" such as topless entertainment in the central business district. Dockside Discotheque v. Bd. of Adjustment of Southern Pines, 66 (NCI4th). The decision of a board of county commissioners to deny petitioner's applications for special use permits to operate a stone quarry was not shown to be arbitrary on the ground that the board members were biased and predisposed to vote against the applications. Vulcan Materials Co. v. Guilford County Bd. of Comrs., 71 (NCI4th). The evidence supported a decision by a board of county commissioners to deny petitioner's applications for special use permits to operate a stone quarry in an agricultural district on the ground that the proposed use will not be in harmony with the area in which it is to be located and in general conformity with the plan of development of this jurisdiction and its environs. Vulcan Materials Co. v. Guilford County Bd. of Comrs., 109 (NCI4th). Neither G.S. 160A-388(b) nor G.S. 160A-388(c) gave a zoning board of adjustment the authority to decide an appeal from a decision by the town board of commissioners approving a site plan. Garrity v. Morrisville Zoning Bd. of Adjustment, 110 (NCI4th). Although a board of adjustment failed to make findings and conclusions as required by the town's development ordinance in its decision that the use of petitioner's premises for topless entertainment violated the ordinance, remand for findings was not necessary where the record presented no issues of material fact. Dockside Discotheque v. Bd. of Adjustment of Southern Pines, 114 (NCI4th). A petition for a writ of certiorari seeking judicial review of the decision of a town zoning board of adjustment was required to comply only with the provisions of G.S. 160A-388(e) and was not subject to dismissal because it was not verified, did not contain an undertaking for costs, was not returnable to the superior court, and did not give respondents ten days written notice prior to the date of its return. Garrity v. Morrisville Zoning Bd. of Adjustment,