CONTENTS 3 MAY 1994 ADMINISTRATIVE LAW AND PROCEDURE 65 (NCI4th). Review of an agency decision under G.S. 150B-51(a) allows the court to determine whether the agency's decision states the specific reasons why the agency did not adopt the administrative law judge's recommended decision but does not entitle petitioner to review of whether those stated reasons were correct. Oates v. N.C. Dept. of Correction, APPEAL AND ERROR 137 (NCI4th). An order remanding the action to the Employment Security Commission for a determination of the amount of refund to which appellee is entitled was interlocutory and not immediately appealable. State ex rel. Employment Security Comm. v. IATSE Local 574, 176 (NCI4th). Defendant's motion to dismiss the appeal and for sanctions which was filed over five months before the appeal was docketed in the Court of Appeals was properly directed to the trial court, and neither the dismissal of a case nor the filing of an appeal deprives the trial court of jurisdiction to hear Rule 11 motions. Dodd v. Steele, 418 (NCI4th). Defendant's argument that the trial court erroneously applied pre-Fair Sentencing Act sentencing law was not before the Court where no assignment of error encompassed this assertion. State v. Burton, ATTORNEYS AT LAW 45 (NCI4th). In a malpractice action against defendant attorneys for improperly stating the date of plaintiff's slip and fall in a complaint against a hospital and thereby causing the case to be dismissed on the ground it was barred by the statute of limitations, the trial court erred in directing a verdict for defendant attorneys because plaintiff failed to present expert testimony establishing a breach of the standard of care. Little v. Mattewson, 48 (NCI4th). The trial court erred in directing a verdict for defendant attorneys in a malpractice action on the grounds that plaintiff failed to establish that the underlying claim was valid, would have resulted in a judgment in her favor, and would have been collected. Little v. Mattewson, BROKERS AND FACTORS 26 (NCI4th). Plaintiffs were not entitled to a commission on the sale of defendant's property, though their prospect ultimately purchased the property sixteen months after plaintiffs' marketing contract expired, where the offer of plaintiffs' prospect was conditioned upon the seller's acquisition of an additional lot, the purchaser was not willing to pay the brokers' commission as the parties' contract required, and plaintiffs were not the procuring cause of the sale. Burge v. First Southern Savings Bank, COSTS 26 (NCI4th). The trial court erred in awarding the actual amount of attorney's fees incurred instead of awarding 15% of the outstanding balance owed on a lease where the lease did not stipulate a specific percentage, and G.S 6-21.2(2) thus applied so that the amount of attorney's fees is 15% of the outstanding balance. Devereux Properties, Inc. v. BBM&W, Inc. CRIMINAL LAW 1075 (NCI4th). The trial court correctly applied the law existing prior to the Fair Sentencing Act since the offenses for which defendant was convicted occurred before the effective date of the Act. State v. Burton, DEEDS 83 (NCI4th). Evidence of historical incidents occurring at different times was insufficient to show that plaintiff waived her right to enforce restrictive covenants or that the restrictions otherwise terminated. Williams v. Paley, 86 (NCI4th). The grantor of the property in question intended that a provision stating that restrictive covenants limiting the property to residential use would terminate when "adjacent or nearby properties are turned to commercial use" should be triggered only upon the substantial commercial use of multiple nearby or adjacent properties rather than upon commercial use of a sole property in the vicinity. Williams v. Paley, DIVORCE AND SEPARATION 121 (NCI4th). The trial court in an equitable distribution action properly classified a savings account in the wife's name as marital property where most of the money in the account came from the wife's father, but the only evidence of donative intent was the wife's statement that "my daddy wants me to have this and I'm going to keep it separate." Johnson v. Johnson, 123 (NCI4th). The trial court in an equitable distribution action did not err in its methodology and determination as to what portion of the increase in the value of plaintiff husband's separate property, the parties' home, was marital property. Johnson v. Johnson, 136 (NCI4th). The trial court in an equitable distribution action did not err in its valuation of a piece of property based on the testimony of an expert witness as to appraisals of real estate. Johnson v. Johnson, 395 (NCI4th). The trial court has the discretion to determine what expenses constitute extraordinary expenses, the amount of the expenses, and how the expenses are to be apportioned between the parties. Mackins v. Mackins, 398 (NCI4th). The trial court did not abuse its discretion in ordering defendant to pay 77% of the actual cost for Sylvan Learning Center, a psychologist, summer camp expenses, and orthodontic expenses. Mackins v. Mackins, 427 (NCI4th). A trial court has the discretion to make a modification of a child support order effective from the date a petition to modify is filed as to support obligations which accrue after such date, and where plaintiff filed a motion to modify child support on 27 March 1991, the trial court's order requiring defendant to pay an amount representing increased child support for the months of April 1991 through February 1993 was not a retroactive modification. Mackins v. Mackins, 446 (NCI4th). The evidence was sufficient to support the trial courts finding that defendant had an average gross monthly income of $7,340.00. Mackins v. Mackins, ESTOPPEL 20 (NCI4th). The Industrial Commission properly declined to apply the doctrine of apparent agency, or agency by estoppel, in this action by a student at NCSU to recover for injuries he sustained after being administered a measles vaccine by a temporary nurse at a clinic set up on campus by the Wake County Health Department since plaintiff did not rely on the nurse who administered the shot being the agent of NCSU. Deal v. N.C. State University, GUARANTY 13 (NCI4th). Defendants were estopped from denying liability on their obligations as guarantors of a lease agreement because of modifications of the original lease. Devereux Properties, Inc. v. BBM&W, Inc. Defendants as guarantors of a lease agreement were responsible for attorney's fees where the guaranty agreement covered "each and every obligation of Tenant under this Lease Contract," and the lease required the tenant to pay reasonable attorney's fees in the event of a default. Ibid. HOMICIDE 299 (NCI4th). The evidence was insufficient to support defendant's conviction of second-degree murder where it tended to show only that defendant and the victim had an argument shortly before her death and that defendant had a motive to kill her because she wanted to break up with defendant. State v. Cannada, INCOMPETENT PERSONS 12 (NCI4th). A testatrix may not appoint guardians for an adult daughter through the language of her will when the daughter has not been declared incompetent pursuant to the provisions of G.S. Ch. 35A. In re Efird, INSURANCE 724 (NCI4th). The business exclusion provision in defendants' homeowners insurance policy prevented them from recovering for liability incurred for a patron's injury suffered when she was bitten by a dog while attending a wedding reception on the insured premises. Nationwide Mutual Fire Ins. Co. v. Nunn, JUDGMENTS 166 (NCI4th). In an action to establish an easement by prescription over the property of several defendants, the trial court cannot, by entry of a default judgment, grant the easement across the property of a non-answering defendant and by grant of summary judgment deny the easement across the property of an answering defendant. Vandervott v. Gateway Mountain Ppty. Owners Assn., LIBEL AND SLANDER 13 (NCI4th). Even if the North Carolina courts have extended the traditional categories of slander per se to include holding a person up to disgrace, ridicule, or contempt, the bare allegation that an individual is gay or bisexual does not constitute an accusation which, as a matter of law, per se holds that individual up to disgrace, ridicule, contempt. Donovan v. Fiumara, 14 (NCI4th). A false claim that plaintiffs were gay or bisexual was not tantamount to charging defendants with the commission of a crime and did not constitute slander per se. Donovan v. Fiumara, 35 (NCI4th). Plaintiffs failed to state a claim for slander per quod where the complaint contained no assertion of special damages. Donovan v. Fiumara, PLEADINGS 63 (NCI4th). The trial court did not err in imposing Rule 11 sanctions because plaintiff appealed after filing a voluntary dismissal since a voluntary dismissal terminates a case and precludes the possibility of an appeal. Dodd v. Steele, 64 (NCI4th). The trial court did not err in awarding defendant attorney's fees as a sanction where the court found that defendant incurred the fees as a consequence of plaintiff's notice of appeal filed after plaintiff had taken a voluntary dismissal. Dodd v. Steele, PRINCIPAL AND AGENT 50 (NCI4th). The Industrial Commission properly declined to apply the doctrine of apparent agency in this action by a student at NCSU to recover for injuries he sustained after being administered a measles vaccine by a temporary nurse at a clinic set up on campus by the Wake County Health Department. Deal v. N.C. State University, PUBLIC OFFICERS AND EMPLOYEES 63 (NCI4th). The State Personnel Commission did not act arbitrarily in disregarding the administrative law judge's credibility determinations. Oates v. N.C. Dept. of Correction, 67 (NCI4th). The State Personnel Commission properly dismissed a correctional sergeant for stealing food from the kitchen at Central Prison. Oates v. N.C. Dept. of Correction, RAPE AND ALLIED SEXUAL OFFENSES 19 (NCI4th). A first-degree statutory rape charge against defendant was not subject to dismissal because the statute under which he was charged had been repealed. State v. Burton, 73 (NCI4th). There was no fatal variance between indictments and proof with regard to time in a prosecution for incest, taking indecent liberties, and first-degree statutory rape where the offenses allegedly occurred between certain dates years before the time of trial. State v. Burton, SHERIFFS, POLICE, AND OTHER LAW ENFORCEMENT OFFICERS 19 (NCI4th). Summary judgment was properly entered for defendant highway patrol officers individually and in their official capacities on plaintiff's trespass claim where defendants were authorized by statute to enter plaintiff's residence to arrest her for delaying and obstructing the arrest of her husband. Lee v. Greene, 23 (NCI4th). The trial court should have granted summary judgment for defendant highway patrol officers on plaintiff's 42 U.S.C. 1983 excessive force claim against them in their official capacities where plaintiff sought only monetary damages. Lee v. Greene, The trial court properly denied summary judgment as to plaintiff's 1983 excessive force claim against defendant highway patrol officers in their individual capacities, based on defendants' claim of qualified immunity, since the facts were clearly in dispute concerning the circumstances surrounding plaintiff's arrest and whether plaintiff's right to be free from unreasonable seizure was violated. Ibid. Summary judgment for defendant highway patrol officers on plaintiff's 1983 claim of unlawful entry was proper where defendants' actions were not prohibited by the Fourth Amendment but were authorized by G.S. 15-401(e). Ibid. SOCIAL SERVICES AND PUBLIC WELFARE 20 (NCI4th). Even though petitioner and her two fifteen-year-old nephews lived in the same household and petitioner exercised parental control over her nephews, petitioner and her nephews constituted separate households for food stamp purposes where petitioner purchased and prepared her food separately from that of her nephews. Ledwell v. N.C. Dept. of Human Resources, STATE 19 (NCI4th). The trial court in plaintiff's whistleblower action erred in denying summary judgment on the basis of sovereign immunity as to defendant governor, defendant Secretary of the Department of Human Resources, and defendant Director of the Division of Mental Health where it was clear that these defendants had no part in the alleged whistleblower violations. Minneman v. Martin, WILLS 45 (NCI4th). The clerk of superior court lacked jurisdiction to resolve respondent's claim that an antenuptial agreement was invalid and that she was therefore entitled to participate in the administration and distribution of her deceased husband's estate. In re Estate of Wright, WORKERS' COMPENSATION 62 (NCI4th). Defendant employer did not engage in intentional misconduct knowing such conduct was substantially certain to cause death or serious injury to plaintiff employee where plaintiff was injured while attempting to repair a tobacco blending silo while the machine was running. Vaughan v. J. P. Taylor Co., 114 (NCI4th). Though the immediate cause of decedent's death was pneumonia, there was sufficient evidence to support the Commission's finding that decedent died as a result of injuries received in an automobile accident. Murray v. Associated Insurers, Inc., 115 (NCI4th). Although medical experts testified that it was impossible to tell whether a stroke suffered by decedent occurred before his automobile accident or whether the stroke occurred as a result of the accident, decedent's accident arose out of his employment if the Industrial Commission finds that decedent was in the course of his employment at the time of the accident. Murray v. Associated Insurers, Inc., 152 (NCI4th). The Industrial Commission erred by denying death benefits for a decedent who was killed in an accident on his way from his primary residence in Raleigh to his home in Hound Ears for a weekend during which he planned to go to a dinner party and to call on customers since, under the dual purpose rule, decedent was in the course of his employment during the trip to Hound Ears even though he had additional personal motivations for making the trip as long as he was on the direct route he would have had to take to accomplish the business purpose of the trip. Murray v. Associated Insurers, Inc., 363 (NCI4th). Even if decedent's widow did not technically file a claim for decedent's death benefits, the Industrial Commission had jurisdiction to determine her right to receive death benefits since the Commission acquired jurisdiction when the executor of decedent's estate filed a claim for decedent's injuries which ultimately resulted in death within two years of the accident. Murray v. Associated Insurers, Inc., 387 (NCI4th). Decedent's statements to his wife, daughter, and a customer tending to show his intent or motive in traveling to Hound Ears was admissible under the state of mind exception to the hearsay rule. Murray v. Associated Insurers, Inc.,