CONTENTS 17 August 1993 ASSAULT AND BATTERY 99 (NCI4th). The trial court erred in failing to instruct on self-defense where there was evidence that the victim charged at defendant with a hammer and defendant was able to obtain control of the hammer and to use it to resist the victim's attack. State v. Moore, AUTOMOBILES AND OTHER VEHICLES 528 (NCI4th). The trial court properly denied plaintiff's motion for a directed verdict where plaintiff argued that defendant was exceeding a safe speed under the existing hazardous road conditions but the evidence permitted the jury to reasonably conclude that defendant was not driving at an excessive speed, or if he was, that his negligence was not a proximate cause of plaintiff's injuries because a small crest in the road prevented defendant from seeing a puddle in the road in sufficient time to react to avoid the puddle and thus avoid skidding out of control. Moreau v. Hill, 765 (NCI4th). The trial court erred in instructing on sudden emergency where there was no allegation or evidence that, after defendant's vehicle hit a puddle of water in the road, defendant acted in a negligent manner. Moreau v. Hill, 822 (NCI4th). The evidence was sufficient to support the sentencing judge's findings of the aggravating factors of an alcohol concentration of .20 or more, especially reckless or dangerous driving, and negligent driving that led to an accident causing property damage in excess of $500. State v. Gunter, 823 (NCI4th). The trial court did not err in failing to find as a statutory mitigating factor that defendant received a substance abuse assessment after being charged and prior to sentencing where defendant did not go for assessment until the day before sentencing and he had not yet participated in his treatment. State v. Gunter, BROKERS AND FACTORS 31 (NCI4th). Plaintiff real estate broker could not collect a commission where he procured a buyer at a price acceptable to the seller, the seller refused to make repairs after the buyer's inspection, and the buyer terminated the agreement. Allman v. Charles, CORPORATIONS 16.1 (NCI3d). Defendant did not actually "transact business" so as to come with in the purview of the N. C. Securities Act by misrepresenting to his victims that he had invested their money in stock options where defendant gave victims the false impression that he was a licensed broker. State v. Clemmons, 208 (NCI4th). A genuine issue of material fact existed as to whether defendant Cavalier Acquisition Corporation was a successor corporation and therefore responsible for products liability claims against Cavalier Corporation, which manufactured the drink vending machine involved in the products liability case. Morgan v. Cavalier Acquisition Corp., COSTS 36 (NCI4th). Even though plaintiffs were barred from bringing a medical malpractice action by the three-year statute of limitation, plaintiffs advanced their claim in good faith for an extension or modification of the existing law, and the trial court properly denied defendants' motions for attorney's fees pursuant to G.S. 6-21.5. Brittain v. Cinnoca, CRIMINAL LAW 67 (NCI4th). Although the district court had jurisdiction of a driving while impaired case when a citation for that offense was issued, the superior court acquired jurisdiction when the grand jury issued a presentment which was the first accusation of the offense within the superior court. State v. Gunter, 830 (NCI4th). If a cautionary instruction on accomplice testimony was required upon defendant's request, the inclusion of that instruction in the final charge to the jury rather than prior to the accomplice's testimony was sufficient to meet that requirement. State v. Garcia, 1226 (NCI4th). The trial court did not err in failing to find as a mitigating factor for armed robbery that defendant was suffering from intoxication where the evidence showed defendant to be under the influence of alcohol after the crime but not at the time of the crime. State v. Austin, 1463 (NCI4th). The sentencing judge did not err by placing defendant on supervised probation where the judge indicated on the judgment form that he received evidence and found that supervised probation was necessary. State v. Gunter, DIVORCE AND SEPARATION 27 (NCI4th). The trial court properly denied defendant's motion in the cause requesting a modification of the parties' separation agreement where the agreement was an integrated property settlement with support provisions and provisions for property division constituting reciprocal consideration for each other. Rogers v. Rogers, 117 (NCI4th). If an asset is characterized as separate property that has increased in value during the marriage, the court's focus is on the appreciation occurring during the marriage and whether that appreciation was active or passive, but if an asset is characterized as marital property to which a contribution of separate property was made, the primary focus is on acquisition, not appreciation. Smith v. Smith, The trial court erred in characterizing a holding company for defendant's various business interests as defendant's separate property which appreciated in value during the marriage since the company did not come into existence until after the parties had been married fifteen years and the property owned by defendant prior to the marriage was only a small part of what eventually became the company. Ibid. Although part of the payment for the redemption of stock was made after the date of the parties' separation, the proceeds received after the separation were marital property where they were from the sale of stock acquired during the marriage and sold prior to the date of separation and were received in exchange for marital property. Ibid. 123 (NCI4th). While defendant's interest in a holding company for defendant's various business interests had both marital and separate property components, defendant was entitled only to a return of the base amount of his contribution of separate property with no appreciation where defendant failed to show what amount of the increase in the value of his investment of separate property occurring during the marriage was attributable to passive appreciation. Smith v. Smith, 136 (NCI4th). Evidence of the comparable range of values utilized by defendant's expert was sufficient to support the trial court's finding that the fair market value of a parcel of real estate remained constant from the date of separation to the date of trial. Smith v. Smith, The trial court did not err in placing a value on the marital home which was $25,000 higher than that placed on the home by defendant's expert after an adjustment for needed repairs. Ibid. 141 (NCI4th). The trial court did not err in its valuation of the Charlotte Motor Speedway, a wholly-owned subsidiary of defendant's holding company, by use of the excess earnings approach. Smith v. Smith, Adjustments made by the court concerning valuation of an insurance company which was a wholly-owned subsidiary of defendant's holding company were not improper. Ibid. The trial court did not err in its valuation of an automobile dealership which was a wholly-owned subsidiary of defendant's holding company by use of the industry standard approach. Ibid. 142 (NCI4th). In determining the present value of plaintiff's retirement plans, the trial court erred in relying on hypothetical tax consequences arising from speculative early withdrawals, most of which defendant could not have made at the date of separation under the terms of the plans. Wilkins v. Wilkins, 144 (NCI4th). The trial court erred in failing to include in the marital estate dividend income received by defendant after the date of separation, but the court should have considered defendants' receipt of this income as a distributional factor. Smith v. Smith, The trial court properly considered evidence of plaintiff's lack of homemaker contributions and did not abuse its discretion in choosing not to give this factor any weight. Ibid. The trial court did not err in failing to consider evidence of plaintiff's alleged economic misconduct where the offer of proof did not show that the misconduct dissipated or reduced the value of marital assets or was related to the economic condition of the marriage. Ibid. Although it is appropriate for the trial court to take into consideration whether the post-separation appreciation of the marital property is passive or resulted from the efforts of one or both spouses, the court is not required to make specific findings of fact classifying the appreciation as either passive or active. Ibid. 147 (NCI4th). The trial court did not err in distributing all of the marital debts to defendant since defendant was also awarded all of the property to which the debts were attached. Smith v. Smith, 148 (NCI4th). The trial court did not err in failing to include payments made by defendant toward the first mortgage on the marital home in the postseparation appreciation of the home where the court gave defendant credit for those mortgage payments at another point in its calculations. Smith v. Smith, 149 (NCI4th). The trial court erred by considering an ancillary order for alimony pendente lite in rendering an equitable distribution award. Wilkins v. Wilkins, 154 (NCI4th). The trial court did not err in failing to consider the adverse tax consequences to defendant which defendant alleged were inherent in the distributive award. Smith v. Smith, The trial court in an equitable distribution action erred in considering hypothetical tax consequences with regard to plaintiff's pension plans as a distributive factor in favor of plaintiff if the retirement plans' net present value as of the date of separation could not be discounted by the amount of the tax consequences. Wilkins v. Wilkins, 155 (NCI4th). The trial court properly refused to give defendant a credit or reimbursement for the interest portion of his mortgage payments and did not err in reimbursing defendant in full, by way of a credit, for his payment of the property taxes due on the marital home. Ibid. 161 (NCI4th). The trial court erred in distributing part of the post-separation appreciation of the marital property to plaintiff, but this appreciation should have been considered as a distributional factor. Smith v. Smith, The trial court could properly consider defendant's share of the rental value of the marital residence as a distributional factor only if use of the residence was not awarded to defendant as part of the ancillary order for alimony pendente lite. Wilkins v. Wilkins, 165 (NCI4th). The trial court in an equitable distribution action did not err in ordering defendant to pay a distributive award of more than $15 million over a period of ten years. Smith v. Smith, 392.1 (NCI4th). While the trial court is allowed by statute to deviate from the child support guidelines only if a party requests with notice that the court take evidence relating to the reasonable needs of the child for support and the relative ability of each parent to provide support, both parties waived their right to notice of a request and the trial court was free to deviate from the guidelines where both parties introduced evidence of the child's needs and the parents' ability to pay support. Gowing v. Gowing, 394 (NCI4th). The trial court in a child support action erred in failing to make adequate findings as to the reasonable needs of the child, the earning capacity or incomes of the parties, the relative ability of each parent to pay support, and the child care and homemaker contributions of plaintiff mother. Gowing v. Gowing, 406 (NCI4th). The trial court erred in denying plaintiff mother child support because the child was the beneficiary of a structured settlement from a medical malpractice claim which was to pay $2,000 per month for his entire life. Gowing v. Gowing, 551 (NCI4th). The trial court erred in failing to make adequate findings to support its denial of attorney's fees in a child support action. Gowing v. Gowing, EVIDENCE AND WITNESSES 263 (NCI4th). Defendant was not prejudiced by the trial court's erroneous admission of evidence of defendant's reputation in the community as a drug dealer when defendant had not offered character evidence. State v. Morgan, 346 (NCI4th). Evidence that defendant had sold cocaine to a confidential informant, that officers found an arrest warrant bearing defendant's name with a wallet containing a large amount of cash, and that a witness had seen defendant sell drugs was admissible in a prosecution for trafficking in cocaine to prove intent, plan, or knowledge. State v. Morgan, 621 (NCI4th). The trial court did not err in denying, on the basis of untimeliness, defendant's motion to suppress an in-court identification and the use of a jacket as evidence where defendant had both sufficient time to make his motion prior to trial and ample notice of the State's intention to use the in-court identification and jacket as evidence. State v. Austin, 1823 (NCI4th). Results of a test determining defendant's blood alcohol concentration were not inadmissible because the charging officer who requested the blood test on the night of an accident was not the officer who charged him in the superior court action on which he was tried, and the district court action which arose from a citation issued by the charging officer who requested the blood test was not the superior court action on which he was tried. State v. Gunter, FALSE PRETENSES 37 (NCI4th). There was no fatal variance between the indictment, proof, and instructions in a prosecution for obtaining property by false pretenses although the trial court's instructions failed to mention the exact misrepresentation alleged in the indictment. State v. Clemmons, 45 (NCI4th). The trial court in a prosecution for obtaining property by false pretenses erred in ordering defendant to sign confessions of judgment in favor of the five victims as a condition of probation. State v. Clemmons, HUSBAND AND WIFE 25 (NCI4th). The trial court erred in directing a verdict for plaintiff, defendant's former wife, in an action to partition property owned by defendant prior to the parties' marriage and subsequently conveyed by him to himself and plaintiff where there was evidence that the parties signed a post-nuptial contract providing that each party should retain sole ownership of any property owned prior to the marriage, and that for eleven years following execution of the contract, plaintiff's conduct would allow the reasonable inference that plaintiff intended to disavow any ownership in the subject property. McDonald v. Medford, INDICTMENT, INFORMATION, AND CRIMINAL PLEADINGS 56 (NCI4th). Any variance between the indictment charging that defendant assaulted his victim with a butcher knife and the evidence showing that defendant assaulted his victim with a hammer was harmless error where defendant was convicted only of assault inflicting serious injury. State v. Moore, INSURANCE 530 (NCI4th). Defendant underinsured motorist carrier was not entitled to reduce its coverage by the amount of workers' compensation benefits it had paid to plaintiff. Brantley v. Starling, INTEREST AND USURY 5 (NCI4th). Where defendants executed promissory notes in 1986 in exchange for release of judgment liens on real property which defendants wanted to sell, and they agreed to pay the face amount of the notes "with interest from date" at the rate of six percent, the trial court erred in awarding interest from the date from which the original judgments calculated interest. Sam Stockton Grading Co. v. Hall, JURY 248 (NCI4th). The State's peremptory challenge of one black juror from an otherwise white venire did not violate defendant's constitutional right to a trial by a jury of his peers where the State articulated race-neutral grounds for excusing the juror, including the juror's acquaintance with defense counsel, friendship with defendant, and desire not to serve on the jury. State v. Austin, The trial court did not place an unfair burden on defendant by requiring him to articulate race-neutral grounds for excusing white jurors from the jury. Ibid. LIMITATIONS, REPOSE, AND LACHES 22 (NCI4th). Plaintiffs' medical malpractice claim was barred by the three-year statute of limitations where the last act or omission by defendant was on 17 March 1988, the discovery of the injury was made within two years of the last act or omission, and the action was not filed within three years from 17 March 1988. Brittain v. Cinnoca, MUNICIPAL CORPORATIONS 31 (NCI3d). Defendant did not properly raise defenses to plaintiff's assessment of fees for violating plaintiff's zoning ordinance with regard to signs when he failed to appeal the assessment to the Board of Adjustment. Grandfather Village v. Worsley, NARCOTICS, CONTROLLED SUBSTANCES, AND PARAPHERNALIA 124 (NCI4th). The evidence was sufficient for the jury in a prosecution for trafficking in cocaine by possession and by transportation where defendant and a woman were traveling together on a bus and defendant planned to pay the woman for carrying the cocaine. State v. Garcia, 144 (NCI4th). The evidence was sufficient for the jury to find that defendant had constructive possession of crack cocaine found during search of an apartment although defendant was not present at the time of the search. State v. Morgan, 220 (NCI4th). The trial court did not violate public policy by sentencing an illegal alien to two consecutive thirty-five-year terms for trafficking in cocaine by possession of 400 grams or more and trafficking in cocaine by transportation of 400 grams or more. State v. Garcia, NEGOTIABLE INSTRUMENTS AND OTHER COMMERCIAL PAPER 29 (NCI4th). The execution of a promissory note is supported by consideration if given in exchange for the release of a lien on real property. Sam Stockton Grading Co. v. Hall, PRODUCTS LIABILITY 18 (NCI4th). In a products liability case where a soft drink vending machine fell on decedent, the trial court erred in granting summary judgment for defendants based on contributory negligence where there were genuine issues of material fact as to whether decedent placed money in the machine and was attempting to retrieve the canned drink for which he had paid or whether he was attempting to tilt the machine to steal a drink. Morgan v. Cavalier Acquisition Corp., 28 (NCI4th). The trial court erred in entering summary judgment in a products liability case for the manufacturer of a soft drink vending machine which fell on decedent where genuine issues of material fact existed as to whether the manufacturer was negligent in the design and servicing of the machine and in its failure to give notice of a latent defect in the machine. Morgan v. Cavalier Acquisition Corp., The trial court erred in granting summary judgment in a products liability case for defendant bottling company which owned a soft drink vending machine that fell on decedent where a genuine issue of material fact existed regarding the bottling company's negligence in failing to respond to information about defects in the machine and failing to bolt the machine to the wall or place warning stickers on it. Ibid. Plaintiff's forecast of evidence in a products liability case presented genuine issues of material fact as to gross negligence by the manufacturer and owner of a soft drink vending machine which fell on decedent. Ibid. SEARCHES AND SEIZURES 3 (NCI3d). Officers had a justifiable basis to approach defendants' residence where an informant told them that marijuana was being grown in the basement of the residence and officers went there to inquire further into the matter. State v. Wallace, 10 (NCI3d). Officers had probable cause to believe criminal activity was taking place in a house because of information provided by an informant and a statement made by an occupant of the house that there might be some marijuana or marijuana seeds and drug paraphernalia that he would like to dispose of before he consented to a search, but there were no exigent circumstances justifying a warrantless entry into the residence. State v. Wallace, 12 (NCI3d). An SBI agent was not entitled to approach and detain defendant for investigative purposes while defendant was sitting in his car in the parking lot of a nightclub where officers went to the nightclub with a search warrant, there was no warrant to search the exterior premises and no evidence that police had a reason to suspect that drug sales were taking place in the parking lot, and the agent stated merely that he thought it suspicious that defendant was backed into the parking lot with his door open talking to a person who was standing beside the car. State v. Brooks, 21 (NCI3d). An informant's tip that marijuana was being grown in the basement of a residence, standing alone, was insufficient to constitute probable cause to issue a search warrant. State v. Wallace, 25 (NCI3d). Any search pursuant to a warrant is not a genuinely independent source of information sufficient to remove the taint of an earlier unlawful entry if the warrant was either prompted by what officers saw in the initial unlawful entry or if the information obtained during the entry affected the magistrate's decision to issue the warrant. State v. Wallace, STATE 12 (NCI3d). An applicant for State employment whose grievance against the State alleged discrimination based on his age and veteran's preference had thirty days after he received notice that another applicant had been placed in the position to file his petition for a contested case hearing with the Office of Administrative Hearings. Clay v. Employment Security Comm., TAXATION 31.1 (NCI3d). Items such as matches and food offered at no charge to patrons of restaurant bars and to restaurant managers are not subject to use taxes. In re Rock-Ola Cafe,