CONTENTS 17 MAY 1994 ADMINISTRATIVE LAW AND PROCEDURE 72 (NCI4th). Although there are statutory provisions establishing judicial review of administrative agency decisions, no section of the Administrative Procedure Act delineates the procedures to be followed upon appellate review; this panel of the Court of Appeals determined that the proper standard was to examine the trial court's order for error of law rather than to apply the same standard as the trial court and to examine the evidence. Amanini v. N.C. Dept. of Human Resources, De novo review is required where it is alleged that an agency's decision was based upon an error of law; review is conducted under the whole record test where it is alleged that the agency's decision is not supported by substantial evidence. Brooks v. Ansco & Associates, APPEAL AND ERROR 118 (NCI4th). The denial of summary judgment for defendant Town of Lansing was immediately appealable in an action against the Town arising from an ordinance requiring water and sewer connections. Blevins v. Denny, 126 (NCI4th). A trial court order granting defendant's motion for a change of venue was immediately appealable. First Southern Savings Bank v. Tuton, 168 (NCI4th). An assignment of error contending that G.S. 136-28.4 and the Project Special Provision Minority Businesses (the state policy concerning participation by disadvantaged businesses in highway contracts) violated Equal Protection was dismissed as moot. Dickerson Carolina, Inc. v. Harrelson, 443 (NCI4th). An assignment of error in a brief which was not set out in the record on appeal was not addressed. Bell Atlantic Tricon Leasing Corp. v. DRR, Inc., CONSTITUTIONAL LAW 85 (NCI4th). Summary judgment was properly granted for members of the State Board of Transportation in a suit under 42 U.S.C. 1983 which arose from a dispute over minority business participation in a highway contract under G.S. 136-28.4. Dickerson Carolina, Inc. v. Harrelson, 131 (NCI4th). An amount equal to six weeks pay granted by the county commissioners to a county manager who resigned was not a prohibited exclusive emolument under the North Carolina Constitution, Article I, section 32, where the minutes of the board referred to the payment as "severance pay," but it is clear from the brief discussion preceding the motion that the motivation for the payment was consideration of past service as county manager. Leete v. County of Warren, CORPORATIONS 102 (NCI4th). The trial court did not err in an action to enforce a corporate guaranty of an equipment lease by granting plaintiff's motion for summary judgment despite defendant MHF's contention that it could not be bound by the guaranty on the basis of estoppel. MHF held out Ricky Fowler, who signed the guaranty, as president and thereby authorized him to bind the corporation and allowed other persons to rely on Ricky Fowler as having the authority to bind MHF, and should therefore be estopped from denying Ricky Fowler's authority to execute the guaranty. Bell Atlantic Tricon Leasing Corp. v. DRR, Inc., 111 (NCI4th). The trial court properly granted plaintiff's motion for summary judgment in an action on a guaranty of an equipment lease where defendant Maylon H. Fowler, Inc. contended that Ricky Fowler had not had the apparent authority to bind MHF in the guaranty, but Ricky Fowler was the president of MHF, he was allowed to represent that he was responsible for the management and control of MHF, and guarantying an affiliates's lease agreement does not put a party on notice that the officers of the corporation were acting outside the scope of their authority. Bell Atlantic Tricon Leasing Corp. v. DRR, Inc., 118 (NCI4th). The trial court properly granted plaintiff's motion for summary judgment in an action on a guaranty of an equipment lease where defendant Maylon H. Fowler, Inc. contended that Dennis Fowler had not had the apparent authority to bind MHF in the guaranty but Dennis Fowler, by signing the secretary's certificate of the guaranty, represented that the MHF board of directors met and authorized the signing of the guaranty, and guarantying an affiliates's lease agreement does not put a party on notice that the officers of the corporation were acting outside the scope of their authority. Bell Atlantic Tricon Leasing Corp. v. DRR, Inc., 121 (NCI4th). The trial court did not err in an action to enforce a corporate guaranty of an equipment lease by granting plaintiff's motion for summary judgment despite defendant MHF's contention that it could not be bound by the guaranty on the basis of ratification. The leased equipment was in the possession of MHF and MHF made several payments on the lease, supporting plaintiff's position that MHF ratified the acts of its president and secretary. Bell Atlantic Tricon Leasing Corp. v. DRR, Inc., 208 (NCI4th). Summary judgment was properly entered for defendant corporation in plaintiff's slip and fall action on the ground that plaintiff failed to name and serve the proper party within the statute of limitations where another corporation waxed the floor on which plaintiff fell, the other corporation was purchased by defendant, and plaintiff's evidence was insufficient to show that defendant is a mere continuation of the other corporation. Coffin v. ISS Oxford Services, COURTS 15.3 (NCI4th). Defendant Florida resident had insufficient minimum contacts with North Carolina for the courts of this state to exercise personal jurisdiction over him in an action to recover for defamatory statements allegedly made by defendant about plaintiffs in a Tampa, Florida airport. Bullard v. USAir, Inc., CRIMINAL LAW 1179 (NCI4th). The trial court could not use evidence of the parent-child relationship to find the aggravating factor that defendant took advantage of a position of trust or confidence to commit incest, but the trial court could properly find the position of trust or confidence aggravating factor for the crime of taking indecent liberties with a child. State v. Hughes, DIVORCE AND SEPARATION 357 (NCI4th). The trial court erred by dismissing plaintiff grandmother's petition for custody of her daughter's neglected children on the basis of the court's serious concerns about the daughter's parenting skills and the court's concerns about plaintiff's history of depression and how the responsibility of the two children might affect that condition. Smith v. Alleghany County Dept. of Social Services, 445 (NCI4th). The trial court erred by holding that a substantial and involuntary decrease in the income of a non-custodial parent cannot, as a matter of law, constitute a substantial change of circumstances authorizing the court to modify a prior order by reducing child support payments. Pittman v. Pittman, EMINENT DOMAIN 295 (NCI4th). Actions asserting a "taking" are to be initiated within 24 months of the date of the taking of the affected property or the completion of the project involving the taking, whichever comes later. Blevins v. Denny, ESTOPPEL 3 (NCI4th). The Town of Lansing could not be estopped from requiring connection to a water and sewer system where the Town Clerk/Finance Officer had sent town residents a letter before the referendum stating that the Town had no intention of requiring hook-ups and informed residents after the construction of the system that mandatory hook-ups were the Town's only option. Blevins v. Denny, EVIDENCE AND WITNESSES 87 (NCI4th). The trial court did not err in a caveat proceeding by excluding evidence regarding the behavior of the primary beneficiary after the execution of the will. In re Will of Jones, 867 (NCI4th). An officer's testimony reciting the statements of two eyewitnesses about the erratic driving and other actions of the driver of an automobile which nearly struck their car was not hearsay since it was offered to show the basis for the officer's reasonable belief at the time he arrested petitioner that petitioner had been driving while impaired. Melton v. Hodges, 961 (NCI4th). A pediatrician's testimony that an alleged rape, sexual offense and indecent liberties victim told her that her father had touched her in a way she did not like was admissible under the medical diagnosis and treatment exception to the hearsay rule. State v. Hughes, 2332 (NCI4th). A pediatrician was properly permitted to testify about the characteristics of sexually abused children and to state that her findings with regard to the alleged victim "were strongly suggestive of possible sexual abuse." State v. Hughes, 2342 (NCI4th). A sexual abuse therapist's testimony that a rape and sexual offense victim suffered from post traumatic stress disorder was relevant to explain the victim's delay in reporting the offenses, and the trial court's erroneous failure to limit the jury's consideration of this testimony to corroborative purposes was not prejudicial. State v. Hughes, GUARANTY 14 (NCI4th). The trial court erred in an action on a guaranty by granting summary judgment for plaintiff and not granting summary judgment for defendant where the guaranty was a special guaranty extended only to Seaboard Foods and was not enforceable by plaintiff as Seaboard's assignee or successor. Kraft Foodservice v. Hardee, INSURANCE 487 (NCI4th). The trial court did not err by granting summary judgment for defendant Kidd in a declaratory judgment action to determine whether the automobile insurance policy issued by plaintiff New South covered punitive damages where New South contended that, even though the policy did not specifically exclude coverage for punitive damages, it expressly denied coverage for intentional conduct and the jury found intentional conduct as the basis for punitive damages. New South Insurance Co. v. Kidd, A trial court finding in a declaratory judgment action that an automobile insurance policy included coverage for punitive damages was affirmed where the exclusionary language in the policy stated only that it did not provide coverage "for any person who intentionally causes bodily injury or property damage." Ibid. 528 (NCI4th). "Foster child," as used in the portion of plaintiff's underinsured motorist policy defining covered "person," means a person whose upbringing, care and support has been provided by someone not related by blood or legal ties and who has reared the person as his or her own child. United Services Automobile Assn. v. Gambino, The trial court erred by granting summary judgment for defendants in an action to determine whether defendant Jack Gambino was included in defendant Johnson's underinsured motorist coverage where the evidence, considered in the light most favorable to plaintiff, creates a jury question as to whether Jack falls within the definition of foster child. Ibid. The trial court correctly ruled that defendant Jack Gambino is not entitled to aggregate or stack UIM coverage of each of three vehicles insured under one policy where, at the time this action arose, G.S. 20-279.21(b)(4) permitted persons insured of the first class to stack coverages and a foster child is not a relative and thus is not a person of the first class. Ibid. 690 (NCI4th). The trial court did not err in an underinsured motorist stacking case by ruling that the policy's UIM benefits do not cover prejudgment interest or costs taxed where the judgment against the tortfeasor far exceeds the maximum amount of UIM coverage provided by the policy, so that the available limits of UIM coverage would be exhausted in satisfaction of the judgment in the underlying tort action and no UIM coverage would be available for payment of prejudgment interest or costs. United Services Automobile Assn. v. Gambino, 819 (NCI4th). An exclusion in personal liability coverage under a homeowner's policy for property owned by the insured did not apply where defendants obtained city permits and inspections, filled and leveled the back of their property, and the county informed defendants that the fill violated a landfill ordinance and a stream drainage statute and would have to be removed. There was no actual damage or harm to defendants' property, only to the adjacent stream, which is not owned by defendants. Nationwide Mut. Fire Ins. Co. v. Banks, 823 (NCI4th). An exclusion in a homeowner's insurance policy for personal liability coverage for property damage intended or expected by the insured did not apply where defendants acquired a permit from the City of Raleigh allowing them to fill the back of their lot with construction debris in an effort to level the lot and they were subsequently informed by the county that they had violated a landfill ordinance and a stream drainage statute and that the fill would have to be removed. Both the resulting injury and the volitional act must be intended for the exclusion to defendants' homeowner's insurance to apply, and defendants here contemplated nothing but a lawful build-up of their property and clearly did not intend to cause harm to the stream. Nationwide Mut. Fire Ins. Co. v. Banks, 918 (NCI4th). There was no prejudicial error in an action for a declaratory judgment and breach of an insurance contract where the issue was whether legal expenses were covered by the policy and the court admitted evidence on the intent of the parties and submitted the issue to the jury. Cone Mills Corp. v. Allstate Ins. Co., JUDGMENTS 115 (NCI4th). The trial court did not err by determining that plaintiff was not entitled to attorney fees pursuant to G.S. 75-16.1 where plaintiff had accepted an offer of judgment; where an offer of judgment is accepted by the plaintiff, there is no prevailing party or losing party and no admission or judgment of liability. Evans v. Full Circle Productions, 474 (NCI4th). The trial judge erred by setting aside pursuant to Rule 60(b)(6) another judge's previous judgment adjudicating defendant to be the father of plaintiff's three minor children where the evidence supported the first judge's finding of the untimeleness of defendant's answer and motion for a jury trial and his determination of paternity. Jenkins v. Middleton, JURY 203 (NCI4th). The trial court did not err by denying defendant's challenge for cause of a prospective juror who was a member of the district attorney's staff and who stated that it might be difficult for him to give defendant a fair and impartial trial because of his position but that he thought he could follow the law. State v. Scales, LABOR AND EMPLOYMENT 34 (NCI4th). The findings of the North Carolina Safety and Health Review Board that defendant's actions were willful were not supported by the findings of facts in an action arising from the collapse of an excavation but the findings do support a conclusion that the violation was serious. Brooks v. Ansco & Associates, MUNICIPAL CORPORATIONS 413 (NCI4th). The Town of Lansing was performing a governmental function when it passed an ordinance mandating connection to a water and sewer system and is immune from tort liability for depriving plaintiffs of their wells and septic systems and for unjust enrichment. Blevins v. Denny, NEGLIGENCE 42 (NCI4th). Plaintiff police officer's evidence was sufficient to support a jury verdict finding negligence by defendant board of education where it tended to show that plaintiff was injured while attempting to descend an outside stairway at a field house, the slope of the stairway exceeded a safe slope, and the stairway had remained in the same condition for many years. Newton v. New Hanover County Bd. of Education, 51 (NCI4th). A police officer who went to a high school field house in response to a silent alarm was an invitee rather than a licensee while on the school premises. Newton v. New Hanover County Bd. of Education, 58 (NCI4th). Summary judgment was properly entered for defendant in plaintiff invitee's action to recover for injuries she received when she slipped and fell on a graveled incline covered with wet leaves and mud at a construction site to which she went in response to an advertisement for the sale of a camper owned by defendant since the area was in a reasonably safe condition for its contemplated use by trucks hauling construction materials, and defendant was under no duty to warn plaintiff of an obvious danger. Newsom v. Byrnes, NOTICE 2 (NCI4th). The trial court did not err by overruling plaintiff's objection to a hearing on motions where plaintiff made her motion under G.S. 1A-1, Rule 6(d) and contended that she did not have notice of the hearing and was inadequately prepared, but it is clear that plaintiff had actual notice; moreover, plaintiff cannot show prejudice since her counsel subsequently appeared and his arguments were heard. Evans v. Full Circle Productions, PARENT AND CHILD 101 (NCI4th). The trial court sufficiently considered evidence of the mother's improved psychological condition and improved living conditions at the time of the hearing when it terminated the mother's parental rights on the ground that her children were neglected juveniles. Smith v. Alleghany County Dept. of Social Services, PUBLIC OFFICERS AND EMPLOYEES 67 (NCI4th). The superior court erred by affirming the State Personnel Commission's decision to terminate petitioner where petitioner's alleged violations properly fall within job performance and the Commission erred to the extent that its conclusion of just cause was based upon its characterization of petitioner's actions as personal misconduct. Amanini v. N.C. Dept. of Human Resources, RAPE AND ALLIED SEXUAL OFFENSES 132 (NCI4th). The trial court did not err in the use of the disjunctive in its instructions that an indecent liberty is an immoral and indecent touching by the defendant of the child or inducement by the defendant of an immoral or indecent touching by the child and that a sexual act means fellatio and\or any penetration by any object into the genital opening of a person's body. State v. Hughes, 166 (NCI4th). The trial court erred by instructing the jury that it could base a conviction of sexual offense on either fellatio or penetration by an object where there was no evidence of penetration by an object. State v. Hughes, TRIAL 266 (NCI4th). The trial court did not err by granting a directed verdict for the propounders in a will caveat case where the caveators contended that the motion failed to state specific grounds in favor of the motion. In re Will of Jones, UNFAIR COMPETITION 52 (NCI4th). The trial court did not err by determining that plaintiff was not entitled to attorney fees pursuant to G.S. 75-16.1 where plaintiff had accepted an offer of judgment. Evans v. Full Circle Productions, VENUE 17 (NCI4th). Venue on an action for a deficiency after foreclosure on a note was properly transferred where the deed of trust for the note was upon property leased by defendants; a leasehold interest in real property is a chattel real and as such is subject to rules of law applicable to personal property. First Southern Savings Bank v. Tuton, WILLS 65 (NCI4th). The trial court did not err by granting a directed verdict for the propounders in a will caveat action based on undue influence where the caveators did not present sufficient evidence to establish a prima facie case of undue influence. In re Will of Jones, ZONING 120 (NCI4th). Judicial review of zoning matters; necessary parties A city's petition in the superior court for a review of the city board of adjustment's decision was properly dismissed for failure of the city to join the board of adjustment as a necessary party to the lawsuit. City of Raleigh v. Hudson Belk Co.,