CONTENTS 21 December 1993 APPEAL AND ERROR 89 (NCI4th). The grant of partial summary judgment for plaintiff in an action involving ownership of a patent for a tobacco quick-aging process was immediately appealable as affecting a substantial right where the trial court effectively decided that ownership of the process rested with plaintiff by granting summary judgment on the first of plaintiff's six claims. Liggett Group v. Sunas, 125 (NCI4th). Plaintiff's appeal was dismissed as interlocutory where the order at issue required the third-party cross-appellant to take certain actions with regard to evidence of debts due defendant "pending further orders of this court." Transtector Systems, Inc. v. Electric Supply, Inc., 147 (NCI4th). A defendant's arguments were not reviewed where defendant failed to object at trial. Barbee v. Atlantic Marine Sales & Service, 175 (NCI4th). An appeal from the trial of a dispute between a board of education and a board of county commissioners as to the amount appropriated to maintain a system of free public schools in the county for the 1992-93 school year is moot where that school year has ended. Cumberland County Bd. of Educ. v. Cumberland County Bd. of Comrs., 176 (NCI4th). The trial court had jurisdiction to hear a motion for attorney fees in a child custody action after notice of appeal where the court had expressly reserved the issue of attorney fees at the time it rendered judgment as to the custody matters. Surles v. Surles, 418 (NCI4th). A defendant's argument was not reviewed where defendant did not assign error in the record on appeal. Barbee v. Atlantic Marine Sales & Service, 421 (NCI4th). Plaintiff insurance company abandoned a claim under 42 U.S.C. 1983 against the Insurance Commissioner personally by failing to include any discussion of that claim in its initial brief. Golden Rule Insurance Co. v. Long, ARBITRATION AND AWARD 14 (NCI4th). The trial court erred by denying plaintiff's motion to compel arbitration and in granting defendant's motion to stay arbitration where plaintiff's demand for arbitration was not untimely or unreasonably delayed by plaintiff. Hackett v. Bonta, BURGLARY AND UNLAWFUL BREAKINGS 74 (NCI4th). The State presented insufficient evidence that the offense was committed in the nighttime to support defendant's conviction of first-degree burglary, but the verdict will be considered a verdict of felonious breaking and entering. State v. Barnett, CONSTITUTIONAL LAW 24 (NCI4th). The trial court did not err in declaring unconstitutional as local acts three statutes which transferred exclusive jurisdiction of the enforcement of various building codes from the City of New Bern, North Carolina, to Craven County, or by applying its ruling of unconstitutionality prospectively only. City of New Bern v. New Bern-Craven County Board of Education, 349 (NCI4th). A murder defendant's Sixth Amendment right to confront adverse witnesses was not violated by the testimony of an SBI agent regarding blood grouping tests where the only part of the testimony not based on the agent's personal knowledge was the statistical database. State v. Demery, COURTS 17 (NCI4th). The trial court erred by denying the motion of third-party Lithonia to dismiss for lack of authority to exercise personal jurisdiction where Lithonia is not a person served in an action pursuant to G.S. 1A-1, Rules 4(j) or 4(j1), never made a general appearance, and is not involved in a counterclaim to an action it brought, so that plaintiff cannot argue that service of a summons is dispensed with under G.S. 1-75.7. Transtector Systems, Inc. v. Electric Supply, Inc. CRIMINAL LAW 133 (NCI4th). Defendant's statements expressing reservations about his guilty pleas after they had been accepted by the trial court were not relevant to a determination as to whether the pleas were properly accepted by the court, and the court properly accepted defendant's pleas where the court informed defendant of every right listed in G.S. 15A-1022(a) and defendant's responses to the court before it accepted his pleas did not indicate any misunderstanding requiring further inquiry by the court. State v. Barnett, 965 (NCI4th). Where the materials before the Court of Appeals are insufficient to justify a ruling on defendant's motion for appropriate relief on the ground of ineffective assistance of counsel, the motion must be remanded to the trial court for the taking of evidence and a determination of the motion. State v. Barnett, 1510 (NCI4th). The trial court erred in conditioning defendant's probation on an amount of restitution that defendant clearly cannot pay where defendant was ordered to pay an embezzlement victim restitution of $208,899.00 at a rate of more than $3,000.00 per month over a five-year probationary period. State v. Hayes, DISCOVERY AND DEPOSITIONS 55 (NCI4th). Respondent father was not prejudiced by the trial court's failure in a termination of parental rights proceeding to compel the guardian ad litem to provide a list of services offered to him where respondent obtained that information from DSS. In re Guynn, DIVORCE AND SEPARATION 295 (NCI4th). The trial court erred by addressing the issue of whether plaintiff waived the alimony provision of a consent order where the proceeding involved only child support and neither party moved for modification of the alimony payments. Van Nynatten v. Van Nynatten, 345 (NCI4th). The trial court did not err in a child custody proceeding by finding that the mother was a fit and proper person to have custody of her daughters even though the court also found that the defendant-mother had had sexual relations with the intervenor at the time of the younger daughter's conception and while married to plaintiff. Surles v. Surles, 348 (NCI4th). The trial court did not err by conditioning plaintiff's visitation with his minor children on his ability to control his obsessive-compulsive behavior when with the children. Surles v. Surles, 350 (NCI4th). The trial court did not err by awarding custody of two children to the defendant-mother where the mother's current husband had intervened and claimed to be the biological father of one of the children. Surles v. Surles, 417 (NCI4th). Even if the parties orally agreed that defendant's child support payments would be reduced after equitable distribution, this agreement did not constitute a compelling reason justifying an order by the trial court retroactively reducing the child support payments. Van Nynatten v. Van Nynatten, 546 (NCI4th). The trial court did not err by awarding defendant attorney fees in a custody action where plaintiff contended that the court erred by failing to consider that defendant made no request for attorney fees and has the ability to pay at least a portion of her expenses. Surles v. Surles, 552 (NCI4th). The trial court did not abuse its discretion in a child custody action by concluding that plaintiff had the ability to pay an award of attorney fees to defendant. Surles v. Surles, EVIDENCE AND WITNESSES 82 (NCI4th). Statements by respondent in an action to replace him as co-trustee were relevant where they aided the court in understanding the co-trustee's conduct concerning his failure to file accountings and to obtain approval for communications. Smith v. Underwood, 565 (NCI4th). The trial court in a paternity action properly admitted testimony by a urologist that after a vasectomy, recanalization, which is the natural reconnection of the severed ends of the vas, is medically possible, and that the vas can disconnect again without the patient ever knowing it. Brooks v. Hayes, A urologist was properly permitted to testify in a paternity action that the use of a centrifuge to detect sperm is standard practice since this testimony explained how defendant's sterility test which did not use the centrifuge could have failed to reveal the presence of sperm in the samples. Ibid. A urologist's testimony about a surgical procedure that accomplishes the same results as recanalization was irrelevant and improperly admitted in a paternity action where there was no evidence that such an operation had been performed on defendant. Ibid. 668 (NCI4th). There was no plain error in a murder prosecution from the use of testimony from an SBI agent regarding statements by witnesses where there was substantial evidence against defendant which in no way depended upon the statements or the agent's testimony as to the contents of those statements. State v. Demery, 866 (NCI4th). The trial court did not err in an action for removal of a co-trustee when it allowed into evidence testimony regarding an oral understanding between respondent and two deceased clerks of court. Smith v. Underwood, 1174 (NCI4th). Statements by plaintiff's counsel during a summary judgment hearing to the effect that plaintiff was not seeking damages for events occurring more than three years before the complaint was filed did not constitute judicial admissions and were not binding on the plaintiff in the subsequent trial. Bryant v. Thalhimer Brothers, Inc., 2148 (NCI4th). The trial court in a paternity action erred by permitting plaintiff's genetics and paternity testing experts to express their opinions that defendant is the father of plaintiff's two children. Brooks v. Hayes, 2172 (NCI4th). An SBI agent's testimony about blood-grouping tests did not violate the hearsay rule in a murder prosecution where the agent relied on statistical information concerning the frequency of blood group factors or characteristics in the North Carolina population which had been compiled by the SBI with blood provided by the Red Cross and blood obtained in criminal cases. State v. Demery, 2210 (NCI4th). An SBI agent was testifying within his expertise and established a sufficient foundation for the purpose of calculating the incidence of defendant's and a murder victim's blood factors in the population at large. State v. Demery, 2695 (NCI4th). The Dead Man's Statute, G.S. 8C-1, Rule 601(c), was not applicable in an action to remove a co-trustee where respondent introduced evidence that he had not filed accountings as a result of conversations with two deceased clerks of court. Smith v. Underwood, 2847 (NCI4th). The trial court did not err in a murder prosecution by allowing the State to use typewritten versions of oral statements given by two witnesses to officers where the witnesses had not reviewed the statements before trial. A statement used to refresh a witness's recollection need not be signed by him or even be his own prior statement. State v. Demery, 3081 (NCI4th). The trial court did not err in a murder prosecution by allowing the State to use typewritten versions of oral statements given by two witnesses to officers where the witnesses had not reviewed the statements before trial. The statements were not used as substantive evidence, but to refresh the witnesses' recollections or to impeach portions of courtroom testimony inconsistent with the statements. State v. Demery, HOMICIDE 284 (NCI4th). The evidence was sufficient to deny defendant's motions for dismissal in a prosecution for second-degree murder. State v. Demery, ILLEGITIMATE CHILDREN 9 (NCI4th). Plaintiff's evidence was sufficient for the jury in a paternity action, notwithstanding evidence by defendant that he had undergone a successful vasectomy, where a urologist testified about recanalization and DNA test results tended to show that defendant is the children's father. Brooks v. Hayes, INSURANCE 26 (NCI4th). The Commissioner of Insurance did not exceed the scope of his authority and become personally liable by conditioning approval of a rate increase on a one-year guarantee of rates and anniversary date implementation restrictions. Golden Rule Insurance Co. v. Long, Plaintiff's allegations of political favoritism and discrimination against plaintiff in favor of Blue Cross/Blue Shield were not evidence that the Commissioner acted outside the scope of his authority and became personally liable. Golden Rule Insurance Co. v. Long, 528 (NCI4th). An injured motorist was not entitled to interpolicy stacking of the underinsured motorist benefits under his nonfleet personal automobile policy and his employer's fleet insurance coverage. Isenhour v. Universal Underwriters Ins. Co., INTENTIONAL INFLICTION OF MENTAL DISTRESS 2 (NCI4th). Evidence of sexual harassment and retaliation which occurred more than three years prior to the filing of plaintiff's claim against her supervisor and employer for intentional infliction of emotional distress was not barred by the three-year statute of limitations. Bryant v. Thalhimer Brothers, Inc., The trial court did not err by granting summary judgment for defendant Public Works Commission on a claim arising from sexual harassment where plaintiff failed to show any version of facts from which a reasonable jury could infer that PWC had ratified the sexual harassment of plaintiff. Phelps v. Vassey, 3 (NCI4th). Plaintiff's evidence of sexual harassment and retaliation was sufficient for submission to the jury of plaintiff's claim against her former supervisor for intentional infliction of emotional distress; furthermore, the evidence supported plaintiff's claim that defendant employer ratified the acts of defendant supervisor so that the employer was liable for his actions. Bryant v. Thalhimer Brothers, Inc., JUDGMENTS 351 (NCI4th). An error in terminology did not prevent the Court of Appeals from accurately deciding the questions before it. McFarland v. Justus, JURY 68 (NCI4th). Where the parties in an action for intentional infliction of emotional distress stipulated at the beginning of the trial that the trial could proceed with a jury of ten persons if necessary, the trial court did not err in the denial of defendants' motions for a mistrial and a new trial because the verdict was rendered by a ten-person jury after the trial court excused two jurors who had read a newspaper article reporting that the court had allowed defendants' pretrial motion to suppress certain evidence. Bryant v. Thalhimer Brothers, Inc., LABOR AND EMPLOYMENT 55 (NCI4th). The trial court erred in granting summary judgment for plaintiff-employer on its first cause of action in a declaratory judgment action in which plaintiff sought to have its employee assign to it ownership of a patent for a quick-aging process for tobacco. Liggett Group v. Sunas, 65 (NCI4th). The trial court erred by entering summary judgment dismissing a counterclaim for fraudulent misrepresentation where each of the requisite elements was adequately pled by the employee and evidence was offered to support each element. Liggett Group v. Sunas, 159 (NCI4th). The findings of fact supported the Employment Security Commission's conclusions of law that petitioner had violated a company rule against fighting and was disqualified for unemployment benefits. Fair v. St. Joseph's Hospital, 170 (NCI4th). A petitioner for unemployment compensation failed to properly object to findings in an Employment Security Commission denial of compensation; moreover, the findings were supported by competent evidence and were thus conclusive on appeal. Fair v. St. Joseph's Hospital, LARCENY 24 (NCI4th). Defendant could not properly be convicted and sentenced for both larceny and possession of stolen goods where the same pocketbook was involved in both charges. State v. Barnett, MASTER AND SERVANT 49.1 (NCI3d). A member of the National Guard injured in a jeep accident while returning to his local unit after completing a routine weekend drill at Fort Bragg was an employee of the State who was entitled to workers' compensation for his injuries. Duncan v. N.C. Dept. of Crime Control and Public Safety, 69.3 (NCI3d). Where the parties' Form 21 agreement for the payment of compensation to plaintiff was approved by the Industrial Commission, the agreement became a binding award of the Commission. Martin v. Piedmont Asphalt & Paving Co., 77 (NCI3d). An award of compensation for "necessary" weeks could not be terminated by administrative approval of a Form 24 Application to Stop Compensation filed by the employer or its insurance carrier. Martin v. Piedmont Asphalt & Paving Co., MORTGAGES AND DEEDS OF TRUST 87 (NCI4th). The trial court properly disallowed a foreclosure based upon findings that there was no valid debt and no default where the record supports findings that the notes and deed of trust were given based upon the understanding and for the specific consideration that no criminal proceedings would be instituted and such proceedings were subsequently instituted. In re Foreclosure of Kitchens, MUNICIPAL CORPORATIONS 30.11 (NCI3d). An open air flea market does not come within the definition of "stores and shops conducting retail business" and is not a permitted use in a Neighborhood Trading District. Moore v. Bd. of Adjustment of City of Kinston, 369 (NCI4th). A trial court dismissal of a petition for lack of subject matter jurisdiction was affirmed where plaintiff was a police officer in Asheville who was denied a promotion, the Civil Service Board affirmed the denial, and plaintiff petitioned the court, alleging that he was eligible for promotion rather than that he was entitled to promotion. O'Donnell v. City of Asheville, NEGLIGENCE 19 (NCI4th). Plaintiff parents who went to their teenage son's fatal accident scene could not recover against defendant tortfeasor for negligent infliction of emotional distress since it was not reasonably foreseeable that defendant's negligence while driving an automobile would cause decedent's parents to suffer severe emotional distress. Butz v. Holder, PARENT AND CHILD 109 (NCI4th). The trial court's termination of respondent mother's parental rights on the ground that she is incapable of providing proper care and supervision of her child due to mental illness was supported by clear, cogent and convincing evidence. In re Guynn, The DSS is not required to establish that it made diligent efforts to remedy the parents' mental deficiencies and to reunite the family in order to commence a termination of parental rights proceeding based upon mental illness or retardation. Ibid. PLEADINGS 364 (NCI4th). There was no abuse of discretion in an action arising from the denial of an insurance rate increase where the motion was denied based on plaintiff's failure to exercise due diligence in filing the motion before the eve of trial and the likelihood of further delay and undue prejudice to defendant. Golden Rule Insurance Co. v. Long, PUBLIC OFFICERS AND EMPLOYEES 35 (NCI4th). There was insufficient evidence of malice to hold the Insurance Commissioner personally liable for the denial of a rate increase. Golden Rule Insurance Co. v. Long, RULES OF CIVIL PROCEDURE 56 (NCI3d). The trial court did not err in an action for sexual harassment and emotional distress by refusing to consider affidavits produced for the first time at the summary judgment hearing. Phelps v. Vassey, SCHOOLS 70 (NCI4th). An appeal from the trial of a dispute between a board of education and a board of county commissioners as to the amount appropriated to maintain a system of free public schools in the county for the 1992-93 school year is moot where that school year has ended. Cumberland County Bd. of Educ. v. Cumberland County Bd. of Comrs., STATE 1 (NCI3d). Sovereign immunity was not waived by the State for an action against the Insurance Commissioner arising from the denial of a rate increase by the purchase of liability insurance because the waiver of immunity extends only to injuries which are specifically covered by the insurance policy. Golden Rule Insurance Co. v. Long, 1.1 (NCI3d). A county board of education was required by the Open Meetings Law to deliberate its action to give its members a pay raise at a meeting open to the public. Jacksonville Daily News Co. v. Onslow County Bd. of Education, TAXATION 28.5 (NCI3d). The trial court correctly concluded that plaintiff's failure to notify the Secretary of Revenue of changes made by the IRS extended the statute of limitations for assessment. McFarland v. Justus, The trial court did not err by finding that plaintiffs had not made a sale of real property in 1982 and that the proceeds from the condemnation of a portion of a farm constituted income in 1984. Ibid. TRIAL 6 (NCI3d). The trial court did not err in entering an order based on the results of a survey in a trespass action where plaintiffs made a clear and definite agreement with all parties in open court to be bound by the results of a survey conducted by an independent surveyor appointed by the court. Moore v. Richard West Farms, Inc., TRUSTS 11 (NCI3d). Under G.S. 36A-28, the Court of Appeals was unable to review whether the record contained sufficient evidence to support the trial court's findings of fact in an action to remove a co-trustee. Smith v. Underwood, There was a clear abuse of discretion by the trial court in retaining respondent as a co-trustee. Ibid. UNFAIR COMPETITION 1 (NCI3d). The trial court properly submitted the issue of unfair and deceptive acts or practices in an action arising from the sale of a boat where there was sufficient evidence for the jury to conclude that defendant seized upon the commercial use exclusion in a bad faith attempt to avoid responsibility for the defective boat. Barbee v. Atlantic Marine Sales & Service, There was ample evidence in the record to support the trial judge's findings and those findings in turn support the award of attorney fees in an action for unfair and deceptive practices arising from the sale of a boat. Ibid. A claim for unfair or deceptive practices arising from the sale of a boat was not barred by the four year statute of limitations of G.S. 75-16.2. Ibid. Plaintiff was allowed a double recovery in an action arising from the sale of a boat where the court's order that defendant, the manufacturer of the boat, indemnify the seller of the boat makes it clear that defendant was being held liable for violation of G.S. 75-1.1 and the breach of warranty. Ibid. The Insurance Commissioner did not exceed his authority and become personally liable by violating the Unfair Trade Practices Act in his conditional approval of a rate increase. Golden Rule Insurance Co. v. Long, Employer-employee relationships do not fall within the scope of G.S. 75-1.1 and the trial court properly entered summary judgment on a counterclaim for unfair and deceptive practices alleging the fraudulent inducement of retirement. Liggett Group v. Sunas,