CONTENTS 15 MARCH AND 5 APRIL 1994 APPEAL AND ERROR 119 (NCI4th). An appeal was treated as a petition for certiorari in order to promote judicial economy where the judgment was interlocutory because it failed to dispose of the entire case. Adams v.Jones, 209 (NCI4th). Defendant's notice of appeal was insufficient to vest the Court of Appeals with jurisdiction to review the trial court's 3 June 1992 order granting judgment on the pleadings for plaintiffs as to certain defenses and counterclaims where defendant completely omitted in its notice of appeal any reference to the 3 June 1992 judgment. Guilford Co. Dept. of Emer. Serv. v. Seaboard Chemical Corp., 341 (NCI4th). Defendant in an equitable distribution action abandoned any argument that the valuation of the marital home was improper where defendant alluded to an error in the valuation of the marital home in his assignment of error, made an oblique reference to the valuation in his argument, and did not assign error to the court's finding concerning the sale price of the home and the parties' stipulation as to its value. Fox v. Fox, AUTOMOBILES AND OTHER VEHICLES 416 (NCI4th). The trial court erred in an action arising from an automobile accident by failing to instruct on joint and concurring negligence. Browning v. Carolina Power & Light Co., 528 (NCI4th). The evidence did not show negligence per se by defendant but presented an issue of negligence for the jury where it tended to show that defendant crossed the center line and struck plaintiffs in their lane of travel, but there was also evidence that defendant was driving under the speed limit, was driving a car in good repair with good tire tread, and crossed the center line because of roads made slippery by rain. Tate v. Christy, 571 (NCI4th). The trial court properly instructed the jury and submitted the issue of last clear chance to the jury where plaintiff was struck from the rear by defendant's car while pushing a disabled vehicle along a road. Griffith v. McCall, 818.1 (NCI4th). The trial court properly denied defendant's motion to suppress evidence of his prior DWI convictions in a prosecution for habitual impaired driving although defendant alleged that court records failed to show that defendant was represented by counsel when he entered guilty pleas in those prior cases. State v. Stafford, CONSTITUTIONAL LAW 251 (NCI4th). The trial court did not abuse its discretion in dismissing charges of felonious possession with intent to sell or deliver marijuana, possession with intent to sell or deliver crack cocaine, possession with intent to manufacture crack cocaine, and maintaining a drug dwelling where the charges resulted from a search of defendant's home pursuant to a warrant based upon information provided by a confidential informant and the State refused to disclose the informant's identity after the court granted defendant's motion to require disclosure. State v. McEachern, 309 (NCI4th). A second-degree murder prosecution was remanded for an evidentiary hearing as to whether defendant allowed his attorney to argue that he was guilty of involuntary manslaughter but not murder where it could not be determined from the record whether defendant had given his consent. State v. Baynes, CONTRACTS 43 (NCI4th). A contract, note, and deed of trust given in exchange for a promise not to pursue a criminal embezzlement action were void as against public policy. Adams v.Jones, COSTS 37 (NCI4th). Respondent was not prejudiced by petitioner's failure to serve its supporting affidavit with its petition for attorney's fees. Crowell Constructors, Inc. v. State ex rel. Cobey, The trial court was not required to deny a petition for attorney's fees under G.S. 6-19.1 on grounds that respondent had substantial justification for its claim against petitioner and there were special circumstances which made the award of attorney's fees unjust where the sole support for respondent's contentions was a Court of Appeals opinion which was vacated by the Supreme Court. Ibid. The trial court erred in the amount of attorney's fees it awarded when it inadvertently included certain fees which were incurred before a civil penalty assessment and the court had stated that it was disallowing all such fees. Ibid. COURTS 16 (NCI4th). The long-arm statute, G.S. 1-75.4(5), provided the statutory basis for this state's exercise of personal jurisdiction over the nonresident defendants in plaintiff's action for breach of a contract for the purchase of a computer system shipped from this state, recovery in quantum meruit, and failure to pay on an open account, and defendants had sufficient contacts with this state so that the exercise of personal jurisdiction over them did not violate due process. Dataflow Companies v. Hutto, 70 (NCI4th). The trial court erred in concluding that it lacked subject matter jurisdiction over defendant's counterclaims for taking, inverse condemnation, and violation of 42 U.S.C. 1983 because defendant did not administratively appeal the denial of the special use permit by writ of certiorari to superior court since the superior court did have jurisdiction in an original action to entertain the counterclaims asserted by defendant. Guilford Co. Dept. of Emer. Serv. v. Seaboard Chemical Corp., CRIMINAL LAW 135 (NCI4th). The trial court properly denied defendant's motion to suppress evidence of his prior DWI convictions in a prosecution for habitual impaired driving on the ground that court records failed to show that defendant was represented by counsel when he entered guilty pleas in those prior cases since defendant could not collaterally attack the validity of his DWI convictions. State v. Stafford, DIVORCE AND SEPARATION 132 (NCI4th). The trial court erred in an equitable distribution action in which the property in question consisted of shares in a company where, despite the conclusion that an equitable division would be equitable, plaintiff received approximately 66% of the marital estate. The court may not simply divide and distribute the amount of post-separation increase. Fox v. Fox, 144 (NCI4th). When evidence of a particular distributional factor is introduced, the trial court must consider the fact and make an appropriate finding of fact. Fox v. Fox, 147 (NCI4th). The trial court did not err in an equitable distribution action by finding that the only marital debt was the mortgage on the former marital home and that defendant had no debts or liabilities other than those owing plaintiff and the minor child where defendant contended that the court failed to take into consideration defendant's personal guaranty of certain business debts incurred prior to the separation. Fox v. Fox, 172 (NCI4th). An order of equitable distribution was reversed where plaintiff's complaint in an action for divorce from bed and board asserted a claim for child support, temporary alimony, permanent alimony, the possession and use of certain property, and that defendant be ordered to maintain all marital assets in their present condition, but clearly made no application for equitable distribution, and defendant's pleadings likewise failed to assert a claim for equitable distribution. Stirewalt v. Stirewalt, 535 (NCI4th). There is no authority for the assertion that the trial court in an equitable distribution action must specifically describe each amount when awarding costs. Fox v. Fox, EASEMENTS 39 (NCI4th). Because defendants' roadway easement was valid only in Orange and not in Person County, defendants could be compensated for breach of a dam over which the roadway passed only if the dam lay in Orange County, and defendants failed to carry their burden of establishing that their easement was valid at the point it crossed over the dam where they stipulated that the border between the counties has never been surveyed and it could not be determined in which county the easement was located. Rowe v. Walker, ELECTIONS 60 (NCI4th). Plaintiff was not a qualified candidate for election to the city council in a precinct in Gastonia because he failed to establish a domicile in the precinct for thirty days prior to the election and was thus not legally entitled to vote in the precinct even though plaintiff rented an apartment in the precinct and stated his intent to make the apartment his domicile. Farnsworth v. Jones, EMINENT DOMAIN 35 (NCI4th). A county's enforcement of its hazardous waste ordinance and denial of a special use permit for a hazardous waste processing site did not constitute a taking in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution or the law of the land clause of the N.C. Constitution. Guilford Co. Dept. of Emer. Serv. v. Seaboard Chemical Corp., Defendant did not have a cause of action under 42 U.S.C. 1983 because plaintiff county denied defendant a hazardous waste permit. Ibid. 101 (NCI4th). The trial court did not err by denying plaintiff's motion for a directed verdict in a condemnation action where plaintiff condemned a sewer line easement which separated the northern-most 7.7 acres from the rest of the 32.6 acre tract and defendant's evidence consisted only of the before and after values of the 7.7-acre tract. It may be assumed that diminution of value of the 7.7-acre area therefore equals the diminution in value of the whole tract. Guilford County v. Kane, 244 (NCI4th). The trial court did not err in a condemnation action in its instructions on the value of the property where the instructions allowed the jury to view the contentions of the parties in light of the evidence. Guilford County v. Kane, ESTOPPEL 19 (NCI4th). Defendants were not estopped from pleading the statutes of repose and limitation in plaintiff's medical malpractice action on the ground that defendants delayed furnishing her medical records to her attorney where plaintiff had knowledge of the facts she claimed were concealed from her. Sidney v. Allen, EVIDENCE AND WITNESSES 90 (NCI4th). The trial court erred in an automobile accident case by denying plaintiffs' motion in limine and in allowing defendants to introduce evidence of mini bottles of white lightning found at the scene where the officer who found the bottles in one driver's purse testified that he had no reason to believe that alcohol consumption contributed to the accident and the driver testified that she did not remember the accident or putting the bottles in her purse. Browning v. Carolina Power & Light Co., 427 (NCI4th). Showup identification procedures in which three witnesses observed defendant while he was sitting in a police car, coupled with statements made by officers to two of the witnesses that they had a suspect, that he had changed clothes, and that he no longer had a mustache, were unnecessarily suggestive, but there was no substantial likelihood of misidentification and the identification of defendant by each witness was sufficiently reliable to be admissible. State v. Capps, 654 (NCI4th). In an armed robbery prosecution in which the trial court denied defendant's motion to suppress pretrial identifications after a voir dire hearing but did not make written findings and conclusions until after the presentation of the evidence at trial, defendant was not prejudiced by the fact that the trial court based some of its findings on evidence heard at trial rather than at the voir dire hearing. State v. Capps, 2366 (NCI4th). The trial court in an automobile accident case properly admitted testimony from an accident reconstruction analyst. Griffith v. McCall, EXECUTORS AND ADMINISTRATORS 1 (NCI4th). The clerk of court had no jurisdiction to hear an appeal of a claim against an estate which had been rejected by the personal representative since the only way to preserve such a claim is by commencing an action within three months of the notice of rejection of the claim. In re Estate of Neisen, 130 (NCI4th). A personal representative's letter to claimant suggesting that she file a notice of hearing with the clerk of court of her claim against decedent's estate did not amount to a referral agreement as permitted by G.S. 28A-19-15. In re Estate of Neisen, FRAUD, DECEIT, AND MISREPRESENTATION 38 (NCI4th). The evidence was sufficient for the jury on the issue of fraudulent concealment by plaintiffs in the sale of their business to defendants. Pridgen v. Shoreline Distributors, Inc., HOMICIDE 417 (NCI4th). Defendant's contention that the Pattern Jury Instruction given to the jury in a second-degree murder prosecution arising from child abuse impermissibly shifted the burden of proof to defendant was overruled. State v. Baynes, HOSPITALS AND MEDICAL FACILITIES OR INSTITUTIONS 63 (NCI4th). Defendant hospital was not vicariously liable for a radiologist's alleged negligence in the performance of an angioplasty procedure under the doctrine of respondeat superior because the radiologist was not an employee of the hospital. Hoffman v. Moore Regional Hospital, Defendant hospital was not vicariously liable for a radiologist's alleged negligence based on the doctrine of apparent authority even if the hospital represented in some manner to the patient that the radiologist was its employee where there was no evidence of reliance. Ibid. INFANTS OR MINORS 80 (NCI4th). Where a juvenile petition alleged that respondent unlawfully set fire to a public building in violation of G.S. 14-59, the trial court erred by permitting the State to proceed on the theory that respondent unlawfully set fire to personal property in the building in violation of G.S. 14-66 and by adjudicating respondent a juvenile delinquent on that ground. In re Davis, INJUNCTIONS 8 (NCI4th). The trial court did not err in granting plaintiffs' request for a permanent injunction because defendant was in bankruptcy proceedings. Guilford Co. Dept. of Emer. Serv. v. Seaboard Chemical Corp., INSURANCE 530 (NCI4th). The primary provider of UIM coverage was entitled to credit for the $25,000 paid by the tortfeasor's liability insurer even though it failed to protect its subrogation rights by matching the amount of the tentative settlement. Falls v. N.C. Farm Bureau Mut. Ins. Co., 571 (NCI4th). An automobile was furnished to defendant driver for his regular use at the time of an accident and was excluded from coverage under the driver's personal automobile liability policy by the "furnished for your regular use" exclusion for noncovered vehicles where possession of the automobile was given to the driver so that he could test drive it and the driver continued to possess and use the vehicle for twenty-nine days until the accident occurred. State Farm Mut. Automobile Ins. Co. v. Branch, The trial court properly granted summary judgment for defendant insurance company where plaintiff was injured while driving a dump truck used in his family's farming operation and titled in the name of one of his parents and defendant denied payment and moved for summary judgment based on a policy provision which excluded coverage for injury sustained while occupying or when struck by any vehicle other than the covered auto which was owned by the insured or furnished for the insured's regular use. Betts v. Great American Insurance Companies, 1155 (NCI4th). Plaintiff was "using" his father's automobile at the time of an accident was thus a "person insured" under his father's automobile policy for UIM purposes when he was struck by an automobile while walking on the shoulder of the road in search of mechanical assistance after the automobile he was driving broke down. Falls v. N.C. Farm Bureau Mut. Ins. Co., JUDGMENTS 115 (NCI4th). Defendant's offer of judgment "in the lump sum of $7,001.00 for all damages, attorneys' fees taxable as costs, and the remaining costs accrued at the time this offer is filed" evinces an unmistakable intent that the $7,001.00 lump sum be payment not only for plaintiff's damages but also for her attorney's fees and the costs accrued at the time the offer was filed. Harward v. Smith, 139 (NCI4th). A consent judgment in actions for clear title and for trespass was not an order enforceable through the contempt powers of the court where the judgment was merely a recital of the parties' agreement and not an adjudication of rights. Crane v. Green, LANDLORD AND TENANT 36 (NCI4th). The DOT's condemnation of .84 acres of a four-acre tract and the resulting demolition of the building used by the lessees as a convenience store did not provide legal grounds for the lessor to terminate the lease under a provision allowing cancellation of the lease if the leased premises are rendered untenable by a casualty. Dept. of Transportation v. Idol, LIMITATIONS, REPOSE, AND LACHES 22 (NCI4th). The trial court properly granted defendant's motion for summary judgment based on the statute of limitations where plaintiff husband fell from a gurney in defendant hospital's emergency room on 14 June 1986; plaintiff wife was told in the emergency room that her husband's condition was caused by swelling in the brain resulting from striking his head; they were subsequently told that there was no brain damage; tests in a psychiatric ward in April of 1990 disclosed permanent and residual brain impairment; and plaintiffs first instituted this action on 12 June 1990, voluntarily dismissed it, and refiled on 7 October 1992. The head injury was not latent; it was apparent that there had been wrongdoing most likely attributable to defendant hospital on the date of the fall. Hussey v. Montgomery Mem. Hosp., 24 (NCI4th). Plaintiff's forecast of evidence was insufficient to show that defendant doctor treated her during her 25 November 1988 hospital stay for the condition created by the doctor's failure to administer radiation therapy to plaintiff in 1982, and summary judgment was properly entered for defendants on the ground that plaintiff's medical malpractice action was barred by the four-year statute of repose set forth in G.S. 1-15(c). Sidney v. Allen, 70 (NCI4th). The trial court erred in dismissing plaintiff's action against an estate based on the statute of limitations where the statute allowed "three months" to begin the action and plaintiff filed within three calendar months; it is well-settled that the word "month" shall be construed to be a calendar month, unless otherwise expressed. Storey v. Hailey, MASTER AND SERVANT 72 (NCI3d). The Industrial Commission did not err in awarding plaintiff benefits for a permanent partial disability rather than for a permanent total disability where there was sufficient evidence to support the finding that plaintiff was capable of obtaining one of the jobs identified by defendant employer as being available within plaintiff's locality and suited to his skills, education, and physical ability. Burwell v. Winn-Dixie Raleigh, 87 (NCI3d). Claim under Compensation Act as precluding common law action Plaintiff's forecast of evidence was insufficient to establish a Woodson claim against a corporate employer and its officers for the death of an employee in a trench cave-in while laying sewer pipe, although the walls of the trench were not shored, sloped, braced or otherwise supported when the trench reached a depth of five feet as required by OSHA regulations. Dunleavy v. Yates Construction Co., 89.4 (NCI3d). The trial court did not err in a negligence action by a Champion employee against defendants, which had demonstrated a chemical cleaning product in a Champion facility, by instructing the jury that if the negligent acts of the agents of Champion and defendants concurred or joined together to produce the claimed injury, then the conduct of each is a proximate cause of plaintiff's injuries and defendants and Champion would be jointly and severally liable for all the damages suffered. Sheppard v. Zep Manufacturing Co., MORTGAGES AND DEEDS OF TRUST 104 (NCI4th). The trial court did not err in refusing to relieve the mortgagee of its bid at a foreclosure sale because the trustee mistakenly entered a higher bid than the mortgagee authorized where the trustee acted within the scope of his apparent authority as the mortgagee's agent, and the mistaken bid was not a mutual mistake. In re Proposed Foreclosure of McDuffie, MUNICIPAL CORPORATIONS 30.10 (NCI3d). Respondent planning commission's denial of petitioner's subdivision site plan for an apartment complex was not supported by substantial evidence where the site plan was disapproved because it failed to reserve a right-of-way for a proposed thoroughfare, but the planning commission failed to follow procedures in the subdivision ordinance by requiring reservation of the right-of-way without making the necessary findings. Dellinger v. City of Charlotte, NEGLIGENCE 22 (NCI4th). The trial court properly denied defendant's motion for a directed verdict and properly failed to give requested instructions in a negligence action where plaintiff was injured when defendant Zep demonstrated one of its cleaning products at plaintiff's workplace (Champion) and Zep contended that it could not be held liable for Champion's negligence in failing to warn its employees of a dangerous condition which it created, but a jury could reasonably conclude that defendants were not entitled to rely on the inadequate actions or representations of plaintiff's employer in order to evade liability for plaintiff's injuries. Sheppard v. Zep Manufacturing Co., 125 (NCI4th). A subsequent purchaser of a house has a claim against the builder for the builder's negligent construction of a retaining wall adjacent to the house when the builder's negligence in constructing the retaining wall has materially affected the use and enjoyment of the house itself. Floraday v. Don Galloway Homes, PARENT AND CHILD 99 (NCI4th). The trial court did not abuse its discretion in dismissing a Department of Social Services petition alleging Ashley Nicholson to be a neglected juvenile where Ashley's half-brother had died due to shaken baby syndrome; there was no evidence of abuse of Ashley by either parent; Ashley was three and a half years old and Tiffany, a half-sister, three months old when DSS filed its petition; shaken-baby syndrome is most deadly to infants under six months of age; and the court determined that Tiffany was at risk but that Ashley was not. In re Nicholson and Ford, PLEADINGS 26 (NCI4th). Although federal preemption was otherwise held to be inapplicable, and there was no determination that defendants and their counsel had engaged in gamesmanship, there were grounds for concern where defendants did not specially plead federal preemption in a railroad crossing negligence case, discovery indicated that defendants were relying only on contributory negligence, and defendants raised federal preemption in a motion in limine to exclude evidence that defendant railroad had a duty to signalize the crossing five days before trial. Collins v. CSX Transportation, 367 (NCI4th). The trial court did not err in denying plaintiffs' motion to amend their complaint to allege that defendant board of education had purchased liability insurance where plaintiffs failed to move to amend their complaint to allege the purchase of this insurance for two and one-half years although they had notice that such insurance had been purchased. Gunter v. Anders, PROCESS AND SERVICE 19 (NCI4th). Although defendant in a claim against an estate was estopped from asserting the defenses of insufficient process and service, and the resulting lack of personal jurisdiction, plaintiff's action should not have been subject to dismissal where the process was sufficient because the caption in the summons amounted to a misnomer and defendant had adequate notice that the action was against the estate rather than against defendant individually, and the instructions in the summons were adequate to satisfy the spirit and the letter of G.S. 1A-1, Rule 4(b). Storey v. Hailey, 41 (NCI4th). The trial court erred in a claim against an estate by dismissing the claim for insufficiency of process, insufficiency of service of process, and lack of personal jurisdiction where the defendant's conduct in securing extensions of time, through opposing counsel's professional courtesy, to 54 days past the date when plaintiff could have procured endorsement of the original summons or issuance of an alias and pluries summons, acts to estop defendant from asserting these defenses. Storey v. Hailey, 111 (NCI4th). The trial court erred in a claim against an estate by dismissing the case for insufficiency of service of process where the executor of the estate, a nonresident, had appointed an N.C. attorney as process agent and the summons was served by leaving a copy with the process agent's law partner at their law office. Storey v. Hailey, RAILROADS 2 (NCI4th). The trial court erred in an action arising from a collision between a train and an automobile at a crossing by granting defendant's motion in limine to exclude all evidence relating to defendant railroad's duty to signalize the crossing on the basis of federal preemption. Collins v. CSX Transportation, 31 (NCI4th). The trial court did not err in a railroad crossing case in which contributory negligence was an issue by withholding a gross negligence instruction, and there was no prejudice from the exclusion of evidence of defendant's duty to install signals at the crossing, where, assuming that the conditions at the crossing rendered it extrahazardous, the failure to implement more extensive signalization in this case did not rise to the level of gross negligence. Collins v. CSX Transportation, REGISTRATION AND PROBATE 88 (NCI4th). Where defendants' easement which traversed both Orange and Person Counties was properly recorded only in Orange County before plaintiffs recorded their deed in both counties, plaintiffs had notice only in Orange County and the easement did not encumber their Person County property. Rowe v. Walker, SALES 4 (NCI4th). A check written by plaintiff to defendant as partial payment for bulk tobacco barns was an insufficient writing to satisfy the requirements of G.S. 25-2-201(1) where it was not endorsed by defendant. Buffaloe v. Hart, 54 (NCI4th). The evidence was sufficient to support the jury's conclusion that there was a contract between the parties for the sale of tobacco barns, that plaintiff accepted the barns under the terms and conditions of the contract, and that defendants accepted a payment for the barns under the terms and conditions of the contract. Buffaloe v. Hart, SCHOOLS 172 (NCI4th). Plaintiffs' complaint failed to state a claim for personal injuries against defendant board of education where it failed to allege that defendant waived its immunity by the procurement of liability insurance. Gunter v. Anders, 200 (NCI4th). Plaintiffs' complaint was insufficient to state a claim for personal injuries against a district superintendent and a school principal where it failed to allege that defendants' acts or failure to act were corrupt, malicious, or outside the scope of defendants' authority. Gunter v. Anders, TAXATION 143 (NCI4th). A State tax lien for unpaid sales taxes does not have priority over local ad valorem tax liens which arise from a property owner's failure to pay real estate taxes in the years subsequent to the year in which the State tax lien was docketed. County of Lenoir v. Moore, 205 (NCI4th). A State tax lien for unpaid sales taxes does not have priority over local ad valorem tax liens which arise from a property owner's failure to pay real estate taxes in the years subsequent to the year in which the State tax lien was docketed. County of Lenoir v. Moore, TRIAL 140 (NCI4th). Defendant could not argue in an equitable distribution action that a CPA's valuation of assets was based upon incompetent evidence where defendant's stipulation at trial, made with full knowledge of the facts, removed the pertinent valuations, including their evidentiary bases, from the field of evidence. Fox v. Fox, Stipulations in an equitable distribution action that the parties would be bound by the valuations of assets by a particular CPA were binding where there was a written pretrial equitable distribution order which recited the agreement but which was not signed or otherwise acknowledged by the parties, and there was a second set of stipulations on the day of trial at which time the court examined the parties concerning the terms of the agreement. Ibid. UNFAIR COMPETITION 1 (NCI3d). The trial court properly granted partial summary judgment for plaintiffs on a claim for unfair or deceptive acts under G.S. 75-1.1 where plaintiffs entered into a contract and executed a note and deed of trust in consideration of defendant's abstaining from criminal or civil remedies for embezzlement. Adams v.Jones, WILLS 13.1 (NCI3d). The superior court did not have jurisdiction, and its judgment was vacated, where the executrix of an estate sought more than the construction of a will in that the third document attached to the complaint seeking a declaratory judgment, if given effect, would revoke the validly probated will. Rogel v. Johnson,