CONTENTS FOR CASES FILED 7 September 1993 APPEAL AND ERROR 118 (NCI4th). Defendant's appeal from the denial of summary judgment was dismissed because the denial of a motion for summary judgment is interlocutory, does not affect a substantial right, and is non-appealable. Thrift v. Food Lion, 119 (NCI4th). An appeal by plaintiff and defendant Food Lion from the granting of summary judgment for defendant Triangle Ice was considered on its merits where dismissing the appeal against Triangle could result in two trials on the same factual issues and would consequently deprive plaintiff and Food Lion of a substantial right. Thrift v. Food Lion, 147 (NCI4th). Defendant failed to preserve for appellate review the question of whether the trial court erred in allowing plaintiff's motion for summary judgment when discovery procedures were still pending where defendant made no request that the trial court continue the hearing because discovery was pending. Coble Cranes & Equipment Co. v. B & W Utilities, Inc., ATTORNEYS AT LAW 5 (NCI4th). The trial court did not err by dismissing a claim for a "judgment of misconduct" against an attorney based on violations of the Rules of Professional Conduct. Bryant v. State Bd. of Examiners of Electrical Contractors, AUTOMOBILES AND OTHER VEHICLES 187 (NCI4th). The trial court's application of the amended version of G.S. 20-305(4) in an action involving the relocation of an automobile dealership was not retroactive where defendant did not present its written proposal until after 1 October 1991, the effective date of the amendments, although plaintiff was aware that defendant had been negotiating the relocation. Nissan Motor Corp. v. Fred Anderson Nissan, The amendments to G.S. 20-305(4), providing for administrative review of an automobile manufacturer's or distributor's refusal to approve a dealer's relocation of its facilities, are not an unconstitutional impairment of the parties' right to contract. Ibid. CONSTITUTIONAL LAW 295 (NCI4th). An attorney's dual representation of defendant and a key prosecution witness in a second-degree murder prosecution established a conflict of interest wherein the attorney could not effectively represent defendant even though the representation of the witness took place during concurrent criminal charges not related to this case. State v. James, CONTRACTS 148 (NCI4th). The trial court in an action arising from the financing of a time share resort appropriately granted summary judgment for plaintiff on promissory obligations evidenced by settlement notes executed by First Resort and Ranch Resorts and a credit and guaranty agreement executed by Horizon and Foxfire Resorts where First Resort and Ranch Resorts agreed to compromise and settle their outstanding indebtedness to plaintiff under the original financing agreement by executing the promissory notes. Berkeley Federal Savings and Loan Assn. v. Terra Del Sol, The trial court did not err by granting summary judgment for plaintiff on defendants' counterclaims for breach of contract arising from the financing of a time share resort where defendants contend that plaintiff "impliedly" promised to foreclose on the properties within 90 days of the execution of the workout agreements, but their forecast of evidence failed to raise a genuine issue of fact concerning the "implied" promise. Ibid. COSTS 37 (NCI4th). The trial court had jurisdiction to rule on petitioner's motion for attorney's fees against a State agency pursuant to G.S. 6-19.1 which was filed well before final judgment. Whiteco Industries, Inc. v. Harrelson, ; Whiteco Industries, Inc. v. Harrington, The DOT had substantial justification to revoke petitioner's outdoor advertising permit and to defend petitioner's action contesting the revocation so that the trial court erred in awarding attorney's fees to petitioner under G.S. 6-19.1 where petitioner's billboard lessee hired a landscaping company to cut limbs and trees on the highway right of way in front of the billboard in violation of DOT regulations. Whiteco Industries, Inc. v. Harrelson, The DOT had substantial justification to revoke petitioner's outdoor advertising permit so that the trial court erred in awarding attorney's fees to petitioner under G.S. 6-19.1 where an employee of petitioner's billboard lessee crossed the control of access fence for the interstate to move his vehicle. Whiteco Industries, Inc. v. Harrington, COURTS 84 (NCI4th). A superior court judge had no authority to reconsider motions for summary judgment which had been denied by another superior court judge even though the parties stipulated and agreed that the second judge could rehear the motions. Huffaker v. Holley, CRIMINAL LAW 113 (NCI4th). The trial court did not err in a robbery prosecution by denying defendant's motion for a mistrial based on the State offering a statement by defendant which was not disclosed pursuant to discovery where the State informed defendant of its intention to use the statement and any error in the failure of the state to comply with discovery was harmless beyond a reasonable doubt. State v. Everette, 762 (NCI4th). The trial court's instruction on reasonable doubt which included two references to "moral certainty" and one reference to "honest substantial misgiving" violated defendant's rights under the Due Process Clause. State v. Williams, 1098 (NCI4th). The trial court erred when sentencing defendant as an accessory after the fact to murder by finding in aggravation that the offense was committed to hinder the lawful exercise of a governmental function or the enforcement of laws. State v. Whitley, 1540 (NCI4th). Where an indigent defendant's counsel moved at defendant's request to withdraw as counsel for defendant's probation revocation hearing, and the record does not disclose that the original counsel was incompetent to represent defendant, the trial court did not err in allowing defendant's counsel to withdraw without appointing substitute counsel. State v. Tucker, DISCOVERY AND DEPOSITIONS 8 (NCI4th). The trial court did not abuse its discretion in setting a time limit for completion of discovery. Berkeley Federal Savings and Loan Assn. v. Terra Del Sol, DIVORCE AND SEPARATION 20 (NCI4th). A provision in a 1981 separation agreement incorporated into a consent judgment requiring the husband to pay to the wife as alimony thirty percent of his pension benefits upon his retirement was not void on the date the agreement was entered under the anti-alienation and preemption clauses of the Employment Retirement Income Security Act of 1972. Evans v. Evans, A provision in a 1981 separation agreement incorporated into a consent judgment requiring the husband to pay to the wife as alimony thirty percent of his social security benefits was not void under the anti-alienation and preemption clauses of the Social Security Act because this provision comes within an exception to the anti-alienation clause enacted in 1975. Ibid. 526 (NCI4th). The trial court was not without authority to award attorney's fees to defendant as the dependent spouse in an alimony action after a divorce had been entered and defendant was no longer plaintiff's wife. Evans v. Evans, ELECTION OF REMEDIES 2 (NCI4th). Plaintiff's malpractice action against defendant attorneys was not barred by the doctrine of election of remedies where plaintiff was injured in an automobile accident, defendants failed to institute suit against one of the tortfeasors within the applicable statute of limitations, and plaintiff accepted a settlement from the other two joint tortfeasors and signed a general release. Swain v. Leahy, EMINENT DOMAIN 172 (NCI4th). Where defendant railroad claimed that the DOT's proposed railroad crossing was unsafe, it was error for the trial court to determine that the DOT did not act in an arbitrary and capricious manner in choosing this particular route without first finding whether the proposed crossing was unreasonably dangerous. Dept. of Transportation v. Overton, ENVIRONMENTAL PROTECTION, REGULATION, AND CONSERVATION 45 (NCI4th). The Coastal Resources Commission erred in issuing a CAMA major development/dredge and fill permit allowing construction of a marina by a private developer over public trust waters without the prior granting of an easement by the Department of Administration, subject to approval by the Governor and the Council of State. Walker v. N.C. Dept. of E.H.N.R., 84 (NCI4th). A superior court judgment was reversed and a penalty of $30,862.22 imposed by the North Carolina Environmental Management Commission was reinstated where the Court of Appeals recognized that a person who intentionally fails to adhere to the mandates of the regulatory scheme thereby gains an economic advantage over others who comply with the law by expending funds to follow the regulations. Chesapeake Microfilm v. N.C. Dept. of E.H.N.R., EVIDENCE AND WITNESSES 368 (NCI4th). The trial court did not err in a prosecution for armed robbery and common law robbery by allowing a codefendant to testify as to a subsequent crime for which the defendant was not charged where the evidence tends to show a common scheme or plan on the part of defendant and his cohorts. State v. Everette, 373 (NCI4th). Testimony by an alleged indecent liberties and sexual offense victim that her stepfather put her on the kitchen counter, took out a knife and sharpened it, and was going to kill her except that her mother walked into the room was admissible to explain the victim's hesitancy in telling her mother of the alleged abuse. State v. Bynum, 1994 (NCI4th). The trial court did not err by granting a motion in limine by defendant Outer Banks Financial Services (OBFS) to prohibit introduction of alleged misrepresentations by a director and officer of OBFS because the doctrine of D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, as codified at 12 U.S.C.A. 1823(e), bars any outside agreement the director-officer may have made with plaintiff. Outer Banks Contractors v. Daniels & Daniels Construction, 2593 (NCI4th). The trial court did not abuse its discretion by denying defendants' motion to disqualify plaintiff's attorney from further representation of plaintiff where the judge found that the evidence presented was insufficient to establish that the attorney ought to or would be called as a witness by either party. Berkeley Federal Savings and Loan Assn. v. Terra Del Sol, FRAUD, DECEIT, AND MISREPRESENTATION 17 (NCI4th). The trial court properly granted summary judgment for plaintiff on defendants' counterclaim for fraudulent misrepresentation arising from the financing of a time share resort where defendants' counterclaims were based upon an "implied" promise to foreclose but there was no evidence before the trial court indicating that at the time of the execution of the agreements plaintiff did not intend to foreclose on the properties if acquired. Berkeley Federal Savings and Loan Assn. v. Terra Del Sol, HIGHWAYS, STREETS, AND ROADS 33 (NCI4th). The DOT had substantial justification to revoke petitioner's outdoor advertising permit and to defend petitioner's action contesting the revocation so that the trial court erred in awarding attorney's fees to petitioner under G.S. 6-19.1 where petitioner's billboard lessee hired a landscaping company to cut limbs and trees on the highway right of way in front of the billboard in violation of DOT regulations. Whiteco Industries, Inc. v. Harrelson, The DOT had substantial justification to revoke petitioner's outdoor advertising permit so that the trial court erred in awarding attorney's fees to petitioner under G.S. 6-19.1 where an employee of petitioner's billboard lessee crossed the control of access fence for the interstate to move his vehicle. Whiteco Industries, Inc. v. Harrington, HOMICIDE 334 (NCI4th). The State's evidence was insufficient to support defendants' convictions of involuntary manslaughter based on a nonfelonious assault where decedent made a startled move when he saw defendants approaching him, ran directly into the path of a car, and was struck and killed. State v. McDaniel, JUDGMENTS 104 (NCI4th). Where defendant's 1989 North Carolina income tax refund was garnished due to his child support arrearage, and the trial court entered an order which granted defendant a credit on his child support arrearage for the amount garnished but which had no effect on plaintiff mother's collection of the arrearage, the trial court erred by granting defendant's Rule 60(a) motion to amend the original order by adding language suspending his arrearage payments until plaintiff stopped seeking garnishment since the amendment was a substantive change and not a mere correction of a clerical error. Buncombe County ex rel. Andres v. Newburn, 259 (NCI4th). Plaintiff passenger's 1991 action against the N.C. Insurance Guaranty Association seeking a judgment declaring that the owner's automobile liability policy was in effect on the date of an accident in which plaintiff was injured and that the Association is obligated to pay the policy limits to plaintiff was barred under the doctrine of res judicata by a 1986 declaratory judgment in an action instituted by the owner finding that the liability policy issued to the owner was not in effect at the time of the accident. Hales v. N.C. Insurance Guaranty Assn., LABOR AND EMPLOYMENT 84 (NCI4th). Covenants not to compete signed by two employees of plaintiff heating and air conditioning company were not supported by consideration where the covenants were distributed to all of plaintiff's potential account managers with an explanation that this was done to make their jobs more secure by preventing a loss of customers and plaintiff employer made no promise that it was required to keep in return for the promise not to compete. Milner Airco, Inc. v. Morris, 187 (NCI4th). The trial court properly granted summary judgment for Triangle Ice where plaintiff slipped and fell in the area of a Food Lion where the ice bin was located, Food Lion had received an ice delivery from Triangle Ice Co., a Food Lion employee had supervised the delivery and noticed a puddle on the floor after the Triangle Ice employee left the store, a stock boy was sent to get a cloth and dry the floor, and plaintiff entered the area and fell. Thrift v. Food Lion, LIENS 32 (NCI4th). The trial court correctly ordered defendant Marketplace to deposit $42,000 with the clerk of court so that it could be divided among the plaintiffs and granted Marketplace's motions to have all claims and claims of lien dismissed; because plaintiffs are subrogated to the rights of the general contractor, they may assert only the lien rights which the general contractor has in the project and the general contractor can enforce the lien only for the amount due on the contract. Vulcan Materials Co. v. Fowler Contracting Corp., LIMITATIONS, REPOSE, AND LACHES 32 (NCI4th). The trial court erred in finding that the six-year limitation of G.S. 1-50(5)(a) barred plaintiff's action to recover for damages to plaintiff's home resulting from defendant's allegedly negligent construction where defendant builder was in actual possession and the owner of the home at the time it was constructed and at the time the defective condition causing the damage was constructed, the ten-year statute of repose set out in G.S. 1-52(16) thus applied, and plaintiff's suit was filed within three years after physical damage to the house became apparent and within the ten-year statute of repose. Cage v. Colonial Building Co., LIS PENDENS 2 (NCI4th). The trial court erred by entering judgment for defendant on his counterclaim for monetary damages arising from plaintiff's lis pendens filing; North Carolina caselaw does not support the position that evidence that plaintiff filed the lis pendens on the wrong lot, that plaintiff filed the lis pendens to stop the sale of the property, and that defendant suffered damages as a result is enough to support the conclusion that plaintiff is liable for damages. Quinn v. Quinn, MANDAMUS 10 (NCI4th). The trial court properly dismissed an action to compel the N.C. State Board of Examiners of Electrical Contractors to apply for an administrative law judge to hear a case which the Board had determined that it was prohibited from hearing due to prior knowledge because the agency and the licensee against whom the charges are brought are the proper parties to a contested case and, therefore, the only parties who may insist on a hearing in this case. Bryant v. State Bd. of Examiners of Electrical Contractors, The trial court did not err in dismissing causes of action for malfeasance and nonfeasance in an action in which plaintiff sought to compel a hearing before an administrative law judge because nonfeasance and malfeasance are not in themselves recognized causes of action. Ibid. MASTER AND SERVANT 87 (NCI3d). The trial court did not err by granting defendant's motion for summary judgment on a personal injury claim arising from an injury in plaintiff's place of employment where plaintiff had already filed a workers' compensation claim and signed an agreement for final compromise settlement and release of that claim. Owens v. W. K. Deal Printing, Inc., NEGLIGENCE 78 (NCI4th). The trial court did not err by granting summary judgment for plaintiff on defendants' counterclaims based on negligence, gross negligence, breach of fiduciary duty and vicarious liability arising from the financing of a time share resort. Berkeley Federal Savings and Loan Assn. v. Terra Del Sol, NOTICE 4 (NCI4th). Delivery by Federal Express, with return receipt, is registered mail within the meaning of G.S. 20-305 and plaintiff gave proper notice of its objection to defendant's proposed relocation of an automobile dealership within the statutory period. Nissan Motor Corp. v. Fred Anderson Nissan, PARENT AND CHILD 24 (NCI4th). The general rule in child custody proceedings is that a limited inquiry into the religious practices of the parties is permissible if such practices may adversely affect the physical or mental health or safety of the child, and if the inquiry is limited to the impact such practices have upon the child. Petersen v. Rogers, The trial court violated the adoptive parents' right to freedom of religion by inquiring extensively into the theological beliefs held by members of The Way in a proceeding to determine whether custody of a child should remain with adoptive parents or be placed with the biological parents after the mother revoked consent to the adoption. Ibid. PAYMENT OR TENDER 27 (NCI4th). The trial court erred by placing the burden of proof to show payment, if any, on plaintiff in an action claiming that defendants have not paid any part of the purchase price of a tract of land and seeking to set aside the deed to defendants where defendants asserted that they had paid plaintiff; payment is an affirmative defense and the general rule places the burden of proving payment upon the party asserting it. Heart of the Valley Motel v. Edwards, PLEADINGS 364 (NCI4th). The trial court did not abuse its discretion by denying plaintiff's motion to amend its complaint where the motion to amend was filed over a year after the original complaint, and the requested amendment purported to add a seventh cause of action but the cause of action is ambiguous and no relief was requested. Outer Banks Contractors v. Daniels & Daniels Construction, The trial court did not abuse its discretion in an action arising from the financing of a time share resort by denying defendants' motion to amend the pleading to assert an additional counterclaim arising from the original financing agreement. Berkeley Federal Savings and Loan Assn. v. Terra Del Sol, PROCESS AND SERVICE 15 (NCI4th). The trial court did not err by dismissing plaintiff's negligence action and denying her motion for a new trial or relief from judgment where plaintiff had obtained an extension of time to file her complaint, her summons was returned unserved, plaintiff filed a complaint with a document entitled "Delayed Service of Complaint" within the allowed time, that action was voluntarily dismissed, plaintiff refiled her complaint, and the trial court allowed the motion to dismiss based upon the statute of limitations. Latham v. Cherry, PUBLIC OFFICERS AND EMPLOYEES 68 (NCI4th). The trial court did not err by granting a dismissal under G.S. 1A-1, Rule 12(b)(6) where plaintiff brought this action against the state employees involved in suspending his driver's license in their individual capacities seeking compensatory and punitive damages. White v. Williams, RAPE AND ALLIED OFFENSES 19 (NCI3d). A prosecution for indecent liberties was not required to be dismissed because the State failed to produce any evidence of defendant's age since the jury could reasonably infer from its observation of defendant and other evidence that defendant was at least sixteen years old and that he was five years older than the victim. State v. Bynum, ROBBERY 4.5 (NCI3d). The trial court did not err by denying defendant's motion to dismiss robbery charges where, although defendant contended that he was merely present and not an active participant in the robberies, the evidence was sufficient to support a jury finding that defendant acted in concert or aided and abetted two other men. State v. Everette, 5.4 (NCI4th). The trial court erred in an armed robbery prosecution by not instructing on common law robbery where there was evidence that the pistol in question was without a firing pin at the time of the robbery, but the evidence was not so compelling as to prevent a permissive inference of danger or threat to life or to require that an instruction on armed robbery be excluded. State v. Everette, RULES OF CIVIL PROCEDURE 15 (NCI3d). The trial court erred by failing to rule on defendant's motion to amend her answer prior to granting summary judgment for plaintiff, but defendant was not prejudiced by this error where her answer could not have been considered by the trial court in ruling on the summary judgment motion because it was not verified. Coble Cranes & Equipment Co. v. B & W Utilities, Inc., 60 (NCI4th). The trial court did not abuse its discretion in denying defendants' motions for relief from partial summary judgments for plaintiff where defendants alleged the existence of genuine issues of material fact but had a full and fair opportunity to argue the existence of issues of fact at the summary judgment hearing and to argue in this appeal that the summary judgments should not have been granted. Berkeley Federal Savings and Loan Assn. v. Terra Del Sol, SEARCHES AND SEIZURES 12 (NCI3d). The stop of defendant by two drug interdiction officers at a train station was consensual and did not constitute a seizure, and the stop of the car in which defendant left the train station was a lawful investigatory stop pursuant to a reasonable suspicion of criminal activity based on discrepancies between defendant's statements and her actions, but the search of defendant's person at the police station was not based on probable cause and the seizure of cocaine found on her person should have been suppressed. State v. Pittman, The trial court properly granted defendant's motion to suppress in a DWI prosecution where the officer did not articulate any specific facts which would lead a reasonable police officer to suspect that the defendant was engaged in criminal activity; although the State argued that an officer need only be able to articulate or verbalize the suspicion which precipitated the seizure, that is not the law in this state. State v. Watkins, STATE 8.3 (NCI3d). The evidence in an action by an inmate who slipped and fell on an unsecured drain cover in the kitchen of Central Prison supported the trial court's findings with regard to repair of the drain cover, the availability of tamper-resistant screws, and completion of the repair. Brewington v. N.C. Dept. of Correction, 10 (NCI3d). When a claimant appeals to the Industrial Commission on the basis of a general allegation that the hearing commissioner erred in finding that defendant was not negligent and that such decision was not supported by the evidence, the Commission may respond to such appeal by reviewing the record and, when appropriate, affirming and adopting the decision and order of the hearing commissioner. Brewington v. N.C. Dept. of Correction, TELECOMMUNICATIONS 1.1 (NCI3d). The evidence supported the Utilities Commission's finding and conclusion that cellular telephone service is competitative in North Carolina as a whole although some rural service areas had no carrier or only one carrier. State ex rel. Utilities Comm. v. N.C. Cellular Assn., ; State ex rel. Utilities Comm. v. Attorney General Thornburg, The evidence supported the Utilities Commission's finding and conclusion that deregulation of cellular telephone service is in the public interest. Ibid. The Utilities Commission did not enlarge the scope of the proceeding without notice by its conclusion that bundling is in the public interest so long as consumers had the right to purchase service and equipment independently where it is clear that the Commission was not deciding whether bundling itself is in the public interest but only whether bundling should be permitted without regulation. State ex rel. Utilities Comm. v. N.C. Cellular Assn., The Utilities Commission erred in deregulating cellular service resellers because only providers licensed by the FCC may be deregulated. Ibid. TRIAL 3.1 (NCI4th). The trial court did not abuse its discretion by denying defendants' motion for a continuance of a summary judgment hearing. Berkeley Federal Savings and Loan Assn. v. Terra Del Sol,