CONTENTS 20 July 1993 APPEAL AND ERROR 109 (NCI4th). An appeal was allowed from a preliminary injunction restricting abortion picketing at a doctor's residence. Kaplan v. Prolife Action League of Greensboro, 118 (NCI4th). Plaintiffs' automobile insurer, an unnamed party, had no right to immediately appeal the denial of its motion for summary judgment made on the ground that plaintiffs' uninsured motorist coverage had been exhausted since no substantial right of the insurer was affected. Cagle v. Teachy, The denial of a motion for summary judgment is not a final judgment and is not immediately appealable even if the trial court has attempted to certify it for appeal under Rule 54(b). Ibid. 119 (NCI4th). An appeal was dismissed as interlocutory where a partial summary judgment was granted for plaintiff on the issue on uninsured motorist coverage and the trial judge certified his order for immediate appeal. Such certification is not dispositional when the order appealed from is interlocutory. McNeil v. Hicks, 205 (NCI4th). An appeal was dismissed where a judgment was signed on 13 December 1991 following a trial, that judgment contained a clerical error and reflected entry of judgment on 2 October 1991, the trial court sought to correct the judgment on its own initiative and modified the original judgment on 10 February 1992 to reflect judgment being entered on 21 January 1992, and plaintiff filed notice of appeal on 19 February 1992. Plaintiff's notice of appeal was dismissed as untimely because the trial court lacked the authority to modify its judgment to reflect a date of entry other than 13 December 1991. Food Service Specialists v. Atlas Restaurant Management, 340 (NCI4th). It was assumed on appeal that there was sufficient evidence presented at trial to establish a duty and a breach of that duty where the hospital assigned error only to the sufficiency of evidence as to proximate causation. Dixon v. Taylor, CONSPIRACY 40 (NCI4th). The trial court erred by instructing the jury that it could find defendant guilty of conspiracy to traffic in cocaine "if defendant agreed with one other person" rather than limiting the conspiracy to one with the co-conspirator named in the indictment. State v. Minter, CONSTITUTIONAL LAW 85 (NCI4th). The drug testing policy implemented by defendant airport authority was constitutional when applied to a plaintiff who was authorized to drive a vehicle on the apron of the flight area of the airport. Boesche v. Raleigh-Durham Airport Authority, 126 (NCI4th). There was sufficient competent evidence in an action for a preliminary injunction to support the trial court's finding that defendants had engaged in targeted residential picketing. Kaplan v. Prolife Action League of Greensboro, The trial court did not err by finding that defendants' conduct was coercive in granting a preliminary injunction against abortion picketing at a doctor's residence. Ibid. Restrictions on abortion picketing at a doctor's house in a preliminary injunction were content-neutral where the trial court did not focus on the effect or impact of defendants' message on potential users, but rather on defendants' physical presence having a deliberate intimidating effect on plaintiffs while at their home. Ibid. A preliminary injunction against abortion picketing at a doctor's residence met the constitutionally mandated requirement that the injunctive relief be narrowly tailored and left open ample alternate channels of communication. Ibid. 129 (NCI4th). There is no right to a jury trial of a claim for remission of forfeiture of a vehicle used in violation of the controlled substances laws. State v. Honaker, 262 (NCI4th). Article I, 23 of the N. C. Constitution does not provide broader protection than the U. S. Constitution with regard to a defendant's right to counsel. State v. Harris, 325 (NCI4th). Defendant was not denied due process by the prosecutor's calendaring of her murder case for trial ten times before it actually went to trial. State v. Webster, 327 (NCI4th). Defendant's constitutional right to a speedy trial was not violated by a delay of sixteen months between her arrest and her trial for murder. State v. Webster, 345 (NCI4th). Any violation of defendant's right to be present at every stage of her trial by the court's acceptance of the jury's verdict in a second-degree murder case in the absence of defendant was not prejudicial where the court explained that defendant was absent for good cause shown. State v. Webster, 352 (NCI4th). Article I, 23 of the N. C. Constitution does not provide broader protection than the U. S. Constitution with regard to defendant's right not to be compelled to give self-incriminating evidence. State v. Harris, 367 (NCI4th). The trial court's imposition of consecutive maximum sentences for armed robbery and assault with a deadly weapon with intent to kill inflicting serious injury, based upon a finding of the aggravating factor that defendant had a prior conviction punishable by imprisonment for more than sixty days, did not constitute cruel and unusual punishment. State v. Harris, CRIMINAL LAW 124 (NCI4th). The prosecutor took a position with regard to sentencing in violation of a plea agreement by noting for the trial judge certain available nonstatutory aggravating factors applicable to defendant's case, and failure of the trial court to find any of the aggravating factors suggested by the prosecutor did not render the error harmless. State v. Rodriguez, 571 (NCI4th). The trial court did not err by failing to declare a mistrial when defendant was absent during the final two hours of the jury deliberations because her son had been killed in an automobile accident. State v. Webster, 692 (NCI4th). A trial court has inherent authority to submit its instructions on the law to the jury in writing. State v. Hester, 880 (NCI4th). The trial court's instruction that the jury should try to reconcile its differences because of the expense of a retrial constituted prejudicial error. State v. Buckom, 1085 (NCI4th). The trial court is not required to make findings of aggravating and mitigating factors when the presumptive sentence is imposed. State v. Webster, 1185 (NCI4th). The State was not required to prove that defendant's plea of guilty was voluntarily and understandingly entered in a prior criminal case in order to use it to aggravate defendant's sentence where defendant was represented by counsel at the time he pled guilty. State v. Hester, 1442 (NCI4th). A defendant who has served an active ninety-day sentence as a condition of special probation is entitled to credit for that time on the sentence imposed upon revocation of his probation. State v. Farris, 1648 (NCI4th). Where the Crime Victims Compensation Commission adopted findings by the administrative law judge that there was no evidence that the victim had failed to cooperate with the police department, the Commission could not then find that the victim had not fully cooperated as a matter of law because she refused to prosecute the man who assaulted her. Ellis v. N.C. Crime Victims Compensation Comm., 1653 (NCI4th). The Crime Victims Compensation Act does not impose an affirmative obligation upon crime victims to pursue prosecutions as a prerequisite to compensation under the Act. Ellis v. N.C. Crime Victims Compensation Comm., DIVORCE AND SEPARATION 144 (NCI4th). The trial court did not err in an equitable distribution action which resulted in an unequal distribution of property by making findings regarding only one factor because the trial court was only required to consider factors relevant to the evidence presented by the parties. Gilbert v. Gilbert, 172 (NCI4th). The issue of equitable distribution was not preserved by the wording of a complaint or by the judgment where it was undisputed that defendant did not file any claim, counterclaim, motion, or separate action for equitable distribution before the judgment of absolute divorce. Gilbert v. Gilbert, Equitable estoppel applied to preclude a plaintiff from objecting to defendant's assertion of a claim for equitable distribution. Ibid. 173 (NCI4th). There was no error in an equitable distribution hearing where plaintiff contends that he was not permitted to present any evidence but it must be presumed that the trial judge acted correctly and permitted plaintiff, who was without counsel, to present evidence. Gilbert v. Gilbert, 189 (NCI4th). Plaintiff's failure to specifically apply for equitable distribution prior to a judgment of absolute divorce destroyed her statutory right to equitable distribution even though the divorce judgment contained a statement that "all matters of . . . Equitable Distribution of property are reserved for future disposition in a separate pending action." Lockamy v. Lockamy, 447 (NCI4th). There was competent evidence to support the trial court's finding that defendant had not met his burden of showing substantial changed circumstances in a child custody proceeding where the court found, in effect, that the changes which have occurred have not adversely affected the welfare of the child. Dobos v. Dobos, 460 (NCI4th). The trial court properly denied defendant's motion under G.S. 1A-1, Rule 60(b) to set aside a child custody order on the ground that defendant did not receive proper notice of the hearing where defendant's attorney was present and participated in the hearing and the record contains no indication that defendant's attorney either objected to the introduction of plaintiff's evidence of changed circumstances or sought a continuance of the matter. Dobos v. Dobos, EVIDENCE AND WITNESSES 22 (NCI4th). The Court of Appeals may take judicial notice of superior court assignments. Nationwide Mutual Ins. Co. v. Anderson, 1227 (NCI4th). Although defendant's first statement to police should have been excluded because officers continued to question defendant after he indicated his desire to cut off questioning, the admission of this statement was harmless error where defendant again made a statement to officers the following day, no promises or threats were made to induce defendant to make either the first or second statement, and the second statement was not tainted by the first. State v. Gish, 1252 (NCI4th). Invocation of the Sixth Amendment right to counsel acts only to prevent subsequent interrogation of a defendant on the same offense for which he has invoked his right to counsel and does not work to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel has not attached. State v. Harris, Once a suspect invokes his Fifth Amendment right to counsel for custodial interrogation regarding one offense, he may not be interrogated regarding any offense unless counsel is present. Defendant's invocation of his Sixth Amendment right to appointed counsel in one case was not an invocation of his Fifth Amendment right to counsel during custodial interrogation in another case. Ibid. 1262 (NCI4th). Defendant knowingly and voluntarily waived his Fifth Amendment right to have counsel present during custodial interrogation. State v. Harris, 2411 (NCI4th). The trial court did not err in limiting the number of defense character witnesses to eight in a prosecution of defendant for the murder of her husband. State v. Webster, 3072 (NCI4th). Once a hostile State's witness refused to testify or claimed that parts of his earlier, sworn statements before the grand jury were false, the State could properly use his grand jury testimony for the limited purpose of impeachment. State v. Minter, GIFTS OR DONATIONS 11 (NCI4th). Plaintiff's gift of stock to a hospital was not made contingent upon the hospital's naming its charitable foundation after her grandfather. Courts v. Annie Penn Memorial Hospital, HOMICIDE 287 (NCI4th). The evidence was sufficient for submission to the jury of an issue of defendant's guilt of second-degree murder by shooting the victim as he attempted to leave a party. State v. Hester, 300 (NCI4th). The evidence, including defendant's confession, was sufficient to support defendant's conviction of second-degree murder where it tended to show that defendant struck the victim during an argument and that she fell and hit her head. State v. Gish, 304 (NCI4th). The evidence supported the trial court's submission to the jury of a charge against defendant of second-degree murder of her husband by shooting him at close range after the court dismissed the charge of first-degree murder. State v. Webster, HOSPITALS AND MEDICAL FACILITIES OR INSTITUTIONS 66 (NCI4th). The trial court correctly denied a hospital's motions for a directed verdict and judgment notwithstanding the verdict where the evidence establishes that the hospital's breach of duty in not having the Code cart properly restocked resulted in a three-minute delay in the intubation of the victim which was the proximate cause of he victim's brain death. Dixon v. Taylor, INDICTMENT, INFORMATION, AND CRIMINAL PLEADINGS 6 (NCI4th). Assuming that the grand jury testimony of a co-conspirator was perjured and that this would render the witness incompetent to testify within the meaning of G.S. 15A-955(3), the trial court properly refused to dismiss the indictment where the record failed to show that all of the witnesses were incompetent to testify before the grand jury. State v. Minter, INJUNCTIONS 5 (NCI4th). In determining whether a preliminary injunction was properly issued, the appellate court must examine the trial court's two stage inquiry: whether the plaintiff is able to show likelihood of success on the merits and whether plaintiff is likely to sustain irreparable loss or whether issuance is necessary for the protection of plaintiff's rights during litigation. Kaplan v. Prolife Action League of Greensboro, 32 (NCI4th). The trial court did not err by enjoining the Prolife Action League even though defendants argued that the League is not an entity subject to injunction. Kaplan v. Prolife Action League of Greensboro, The trial court did not err by enjoining defendants from engaging in threatening conduct in an action arising from abortion picketing at a doctor's residence. Ibid. 45 (NCI4th). The decision of a trial court to issue an injunction will be upheld if there is ample competent evidence to support the decision, even though the evidence is conflicting. Kaplan v. Prolife Action League of Greensboro, JUDGES, JUSTICES, AND MAGISTRATES 26 (NCI4th). The trial judge did not err by failing to recuse himself from an automobile forfeiture hearing where defendant produced no evidence of bias other than her attorney's recollection that the judge had made the statement "that car is gone" when the State moved for forfeiture. State v. Honaker, JUDGMENTS 40 (NCI4th). A summary judgment order signed by the trial judge after his commission to hold court in the county expired was void where the record reveals no consent by the parties to entry of the order out of session. Nationwide Mutual Ins. Co. v. Anderson, LABOR AND EMPLOYMENT 63 (NCI4th). North Carolina does not recognize an independent tort claim for wrongful discharge under the bad faith exception. Boesche v. Raleigh-Durham Airport Authority, 66 (NCI4th). The drug testing policy implemented by defendant airport authority was constitutional when applied to a plaintiff who was authorized to drive a vehicle on the apron of the flight area of the airport. Boesche v. Raleigh-Durham Airport Authority LIMITATIONS, REPOSE, AND LACHES 26 (NCI4th). The statute of limitations and the statute of repose did not begin to run on an action for negligently drafting a will until the testator's death. Beneficiaries, as potential plaintiffs, would not realize any injury until the testator's death and the defendant attorney's last act was his failure to fulfill his continuing duty to prepare a will properly reflecting the client's testamentary directions. Hargett v. Holland, 126 (NCI4th). Plaintiff's personal injury claim against a deceased driver's estate was not barred by the three-year statute of limitations of G.S. 1-52 where it was filed more than three years after the cause of action accrued but no notice to creditors of the estate had been published at the time plaintiff's action was commenced. Lassiter v. Faison, MASTER AND SERVANT 71.1 (NCI3d). Where plaintiff, an independent contractor who performed work as a subcontractor for other contractors as well as for defendant employer, was injured while working as a subcontractor for defendant, the Industrial Commission properly calculated plaintiff's average weekly wage on the basis of his total net income from his subcontracting business for the two previous years rather than on the basis of his earnings from work only for defendant. Holloway v. T. A. Mebane, Inc., 89 (NCI3d). The employer and its workers' compensation carrier did not waive their right to consent to an employee's settlement of his personal injury claim against a third party by indicating to the court that the amount of the settlement was sufficient. Fogleman v. D&J Equipment Rental, 89.4 (NCI3d). Where plaintiff worker was injured and compensation benefits were paid to him prior to the effective date of the 1991 amendments to subsections (h) and (j) of G.S. 97-10.2, the subrogation lien of the employer and its insurance carrier against the proceeds of a settlement with a third party vested prior to the amendments, and the trial court's modification of the amount of the lien pursuant to the amendments was an unconstitutional retroactive application of the statute. Fogleman v. D&J Equipment Rental, NARCOTICS, CONTROLLED SUBSTANCES, AND PARAPHERNALIA 42 (NCI4th). The evidence supported the trial court's determination that defendant's vehicle was used in a felony violation of the Controlled Substances Act by defendant's husband and was subject to forfeiture under G.S. 90-112. State v. Honaker, The trial court's findings in a vehicle forfeiture proceeding were an adequate substitute for the simple required finding on whether defendant had knowledge or reason to believe that her vehicle was being used or would be used in violation of the controlled substances laws. Ibid. 48 (NCI4th). There is no right to a jury trial of a claim for remission of forfeiture of a vehicle used in violation of the controlled substances laws. State v. Honaker, NUISANCE 5 (NCI4th). There was ample competent evidence to support the trial court's decision that there is a reasonable likelihood that plaintiffs will prevail on their private nuisance claim. Kaplan v. Prolife Action League of Greensboro, PARENT AND CHILD 104 (NCI4th). The evidence was sufficient to withstand respondent father's motion to dismiss a petition for termination of parental rights on the ground that the father willfully left the minor children in foster care for more than eighteen months without showing that reasonable progress had been made in correcting the conditions that led to their removal. In re Becker, The evidence was sufficient to support the trial court's termination of a mother's parental rights for willfully leaving the minor children in foster care for more than eighteen months without making reasonable progress in correcting the conditions which led to their removal and for willfully failing to pay support for her children. Ibid. 105 (NCI4th). There was sufficient evidence to terminate respondent father's parental rights for willful failure to pay a reasonable portion of the cost of care for the children who had been placed in foster care by the DSS where the father had the ability to pay some child support out of unemployment benefits and a tax refund during the six months preceding filing of the petition despite his incarceration during part of this time and his alleged medical disability. In re Becker, PHYSICIANS, SURGEONS, AND OTHER HEALTH CARE PROFESSIONALS 59 (NCI4th). The notice of hearing given to petitioner dentist by respondent Dental Board was sufficient to put petitioner on notice that he not only faced charges of willful misconduct but also of negligent behavior arising from allegations that he administered nitrous oxide to a female patient without the presence of a female assistant or other chaperon. In re McCollough v. N.C. State Bd. of Dental Examiners, 60 (NCI4th). The evidence was sufficient to support the Dental Board's finding and conclusion that a dentist's administration of nitrous oxide to a female patient while alone with her in his office constituted negligence in the practice of dentistry even though the patient was not injured. In re McCollough v. N.C. State Bd. of Dental Examiners, The Dental Board's 90-day active suspension and five-year conditional reinstatement of a dentist's license for violation of an unwritten standard of care was not arbitrary or capricious. Ibid. 118 (NCI4th). The trial court correctly denied a hospital's motions for directed verdict and judgment notwithstanding the verdict as to all four claims in a medical malpractice action where the hospital did not attempt to distinguish between the different claims asserted by plaintiff and relied on the general claim that plaintiff's evidence was deficient as to proximate cause. Dixon v. Taylor, 149 (NCI4th). The trial court did not err in a medical malpractice action in its instructions regarding the standard of care for a respiratory therapist. Dixon v. Taylor, PRODUCTS LIABILITY 35 (NCI4th). The trial court did not err by granting summary judgment for defendants in an action arising from the loss of a crop where plaintiffs alleged that defendants negligently failed to warn plaintiffs about the carryover effect of prior chemical use. Hopkins v. Ciba-Geigy Corp., State common-law tort claims based on inadequate labeling are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act if the label complies with FIFRA. Ibid. RAILROADS 3 (NCI3d). G.S. 1-44.2, entitled "Presumptive ownership of abandoned railroad easements," is unconstitutional as it applies to fee simple landowners in possession of disputed property because it fails to provide them with adequate notice, opportunity to be heard, and just compensation. McDonald's Corp. v. Dwyer, RULES OF CIVIL PROCEDURE 11 (NCI3d). Although the Court of Appeals declined to adopt a bright-line rule that when an attorney forecasts substantial evidence and survives a motion for summary judgment, the allegations presented in the complaint are necessarily well-grounded in fact and not a proper basis for imposing Rule 11 sanctions, plaintiff's attorney made a reasonable inquiry into the factual basis for the allegations contained in the complaint in this case and sanctions imposed against him, including a written reprimand and attorney's fees, were not warranted. Pugh v. Pugh, 37 (NCI3d). A trial court must consider less severe sanctions before dismissing a plaintiff's complaint under Rule 37(d) for failure to make discovery. Goss v. Battle, 41 (NCI3d). Plaintiffs' voluntary dismissal of their claim against defendant Ciba-Geigy did not constitute an adjudication on the merits pursuant to G.S. 1A-1, Rule 41(a)(1) where plaintiffs filed their initial action against Lebanon Chemical Corporation and Ciba-Geigy and plaintiffs filed a first notice of voluntary dismissal as to Lebanon Chemical and a second as to Ciba-Geigy. Hopkins v. Ciba-Geigy Corp., 60 (NCI3d). The trial court is not required to make findings of fact when ruling on a Rule 60(b) motion for relief from judgment unless findings are requested by a party. Nations v. Nations, 60.2 (NCI3d). The trial court properly denied defendant's Rule 60(b) motion to set aside an equitable distribution judgment where the alleged errors were issues which could have been raised in defendant's prior appeal to the Court of Appeals. Nations v. Nations, While G.S. 1A-1, Rule 60(a) allows the trial court to correct clerical mistakes, it does not grant the trial court the authority to make substantive modifications to an entered judgment. By changing the incorrect date of entry of a judgment to a date other than 13 December 1991, the date it was signed, the trial court improperly altered the substantive rights of the parties by extending the period in which the parties could file a timely notice of appeal and plaintiff's notice of appeal was dismissed as untimely. Food Service Specialists v. Atlas Restaurant Management, TELECOMMUNICATIONS 1.1 (NCI3d). A Utilities Commission order authorizing only county seat polling rather than countywide polling with regard to a request for Extended Area Service (EAS) was not immediately appealable where the areas, if any, which will receive such service have not yet been determined. State ex rel. Utilities Comm. v. Public Staff, TRESPASS 2 (NCI3d). Plaintiffs seeking a preliminary injunction against abortion picketing at a doctor's residence did not establish a likelihood of success on the merits on an intentional infliction of emotional distress claim. Kaplan v. Prolife Action League of Greensboro, TRIAL 13 (NCI3d). The trial court did not err by permitting an exhibit to be taken into the jury room during a medical malpractice trial where one defendant's attorney had stated in the absence of the jury that he objected to any exhibits being taken into the jury room, the jury returned during deliberations and asked to take an exhibit into the jury room, and the defense counsel who had objected stated that he had no objection. Dixon v. Taylor,