ANALYTICAL 2 November 1993 APPEAL AND ERROR 178 (NCI4th). The trial court's order granting summary judgment for defendant on its counterclaim was interlocutory and not subject to immediate appeal, and plaintiff's notice of appeal did not divest the court of jurisdiction to hear motions for prejudgment interest, late charges, and attorney's fees. Beau Rivage Plantation v. Melex USA, 210 (NCI4th). Appeal in civil actions; service of notice An attempted appeal was treated as a petition for certiorari where the record on appeal did not contain a certificate showing service of defendant's notice of appeal, but plaintiff acknowledged that defendant properly served it with notice of appeal. National Fruit Product Company v. Justus, AUTOMOBILES AND OTHER VEHICLES 259 (NCI4th). Whether a manufacturer unreasonably refused to comply with G.S. 20-351.2 or G.S. 20-351.3 is a question for the jury when there is substantial evidence to support the claim. Buford v. General Motors Corp., The trial court erred in directing a verdict for defendant on the issue of unreasonable noncompliance with the New Motor Vehicles Warranty Act. Ibid. A trial court's order denying plaintiffs' request for attorney's fees in an action under the New Motor Vehicles Warranty Act was remanded where the determination of unreasonable noncompliance for purposes of trebling damages was also remanded for a jury determination. Ibid, The trial court erred in an action under the New Motor Vehicles Warranty Act by ordering that plaintiff return the vehicle after the jury awarded a monetary verdict where the jury charge and the verdict form were both silent on this matter. Ibid. 440 (NCI4th). An unlicensed sixteen-year-old decedent's own negligence in driving while voluntarily intoxicated rose to the level of defendant's negligence in entrusting an automobile to her, and plaintiffs' claim for negligent entrustment was barred by decedent's contributory negligence. Meachum v. Faw, 536 (NCI4th). Where the evidence tended to show that a driver lost control of a vehicle when he suffered a seizure, the trial court erred in instructing the jury on the doctrine of sudden emergency rather than the defense of unavoidable accident. Giles v. Smith, CONSPIRACY 18 (NCI4th). The trial court did not err by denying defendant's motion to dismiss a charge of conspiracy to possess cocaine on the ground the conspiracy charge merged into the trafficking by possession charge or on the ground of insufficiency of the evidence. State v. Baker, CONSTITUTIONAL LAW 52 (NCI4th). A residential property owner had standing to challenge the constitutionality of the statute exempting from taxation property owned by certain homes for the aged, sick, or infirm on the basis that the statute discriminated against persons who own their property for private personal residences but lacked standing to challenge the statute on the basis that it discriminated against non-religious, non-Masonic homes for the aged, sick, or infirm. In re Appeal of Barbour, 91 (NCI4th). The statute granting tax-exempt status to certain homes for the aged, sick, or infirm does not discriminate against persons who own their property for residential purposes in violation of the constitutional rule of uniformity of taxation or in violation of the equal protection clause of the N. C. Constitution. In re Appeal of Barbour, 374 (NCI4th). A life sentence for first-degree sexual offense has been upheld as constitutional. State v. Ramseur, COSTS 34 (NCI4th). Plaintiff lessee was given sufficient statutory notice to entitle defendant lessor to recover attorney's fees where the lessor's notice of default stated the lessor's intention to exercise its paragraph 19 remedies under the lease, and paragraph 19 provides for the recovery of attorney's fees. Beau Rivage Plantation v. Melex USA, CRIMINAL LAW 106 (NCI4th). Defendant was not prejudiced by failure of the trial judge to conduct his in camera review of witnesses' statements after each witness testified on direct examination so that defendant could have the statements for cross-examination where the court found that defendant had been provided all relevant statements of witnesses. State v. Baker, 261 (NCI4th). Defendant was not denied a reasonable time to prepare his defense by the trial court's denial of defendant's two motions for continuance, one made four days before trial and one made the day of trial. State v. Allen, 305 (NCI4th). Charges of taking indecent liberties with a child and first-degree sexual offense could properly be joined for trial. State v. Hammond, 1081 (NCI4th). The trial court could properly find that the aggravating factor of defendant's preexisting charge of communicating threats to his victim outweighed three mitigating factors that defendant had no criminal convictions, suffered from a mental condition that reduced his culpability for the offense, and was a person of good character and reputation. State v. Allen, 1169 (NCI4th). The trial court may consider as an aggravating factor that defendant committed an offense while on pretrial release on a misdemeanor charge. State v. Allen, 1281 (NCI4th). Defendant's prosecution as an habitual felon neither denied him due process or equal protection nor subjected him to double jeopardy. State v. Hodge, The habitual felon statute is not unconstitutional as applied to defendant where the principal felony differed from the felonies which established him as an habitual felon. Ibid. Conviction under the habitual felon statute does not violate a defendant's constitutional rights to equal protection, due process and freedom from double jeopardy. State v. Smith, 1283 (NCI4th). An habitual felon indictment was not fatally flawed because it did not state specifically the name of the state or other sovereign against whom two of the previous felonies were committed where the indictment alleged that one felony was committed in "Wake County, North Carolina" and two other felonies were committed in "Wake County." State v. Hodge, Where defendant "William Michael Hodge" was charged with being an habitual felon, the trial court did not err in admitting the original file in another case in the name of "Michael Hodge" since the documents constituted prima facie evidence that defendant named in the file was the same as defendant before the court. Ibid. Defendant was properly charged as an habitual felon in a separate indictment even though the charge of possession with intent to sell or deliver cocaine was contained in indictment 89 CRS 77510(A) and the habitual felon charge was contained in indictment 89 CRS 77510(B). State v. Smith, Defendant was given sufficient notice of the prior felony conviction which would be used to convict him as an habitual felon even though the indictment alleged the date upon which defendant was sentenced for the prior crime rather than the date upon which he pled guilty. Ibid. Either an arrest date or the date that prior felonies were actually committed is sufficient to give defendant notice of the specific felonies which are being alleged in an habitual felon indictment. Ibid. There was no merit to defendant's contention that, once certain underlying convictions are used to convict an individual as an habitual felon, those same convictions may not be used again to enhance another conviction. Ibid. 1284 (NCI4th). There was no merit to defendant's contention that the habitual felon statute required that the indictment charging him with the underlying felony must also charge that he was an habitual felon and that he could not be charged in a separate indictment with being an habitual felon. State v. Hodge, DEATH 31 (NCI4th). The trial court properly dismissed plaintiff's claim in her individual capacity for loss of consortium on the ground that the wrongful death statute encompasses loss of consortium claims since any common law claim encompassed by the wrongful death statute must be asserted by the personal representative for the deceased. Keys v. Duke University, DEEDS 60 (NCI4th). Defendant's construction of a second building on her lot violated restrictive covenants even though the building may have been permissible under city zoning laws as an accessory structure. Crabtree v. Jones, 68 (NCI4th). Plaintiffs were on record notice that one lot in the subdivision had already been conveyed at the time they took title to their lots, and they were thus on notice that the prior deed contained a specific reference to a "BEACH" with a more limited description than the description contained in a later subdivision map. Gregory v. Floyd, 78 (NCI4th). Although restrictive covenants were subject to amendment by written agreement of the grantor and the owners of any lots to which the covenants applied, the covenants were enforceable by one lot owner against another lot owner where the covenants contained a statement that the restrictions could be enforced by "any lot owner or owners." Crabtree v. Jones, EASEMENTS 9 (NCI4th). An easement appurtenant was created as to an area identified as the "BEACH" on subdivision maps where the map was recorded and the deeds held by all purchasers of homes in the subdivision, except the deed to one husband and wife, referred to this subdivision map. Gregory v. Floyd, ENVIRONMENTAL PROTECTION 71 (NCI4th). A municipality could not assess penalties and costs against an industrial user where notice for the hearing was solely for the industrial user to present evidence to show cause why its permit to discharge wastewater should not be revoked. House of Raeford Farms v. City of Raeford, ESTOPPEL 13 (NCI4th). A genuine issue of fact as to equitable estoppel of defendants to assert the statute of limitations was presented in an action for damages and injunctive relief based upon surface water and debris running from defendants' land onto plaintiffs' land where plaintiffs asserted that they delayed in bringing the action because defendants repeatedly promised to remedy the surface water drainage problems. Miller v. Talton, EVIDENCE AND WITNESSES 962 (NCI4th). A victim's assistance counselor's testimony regarding a picture drawn by a child rape and sexual offense victim and the child's description of the drawing written thereon by the counselor were properly admitted under the medical diagnosis and treatment exception to the hearsay rule. State v. Hammond, 1299 (NCI4th). The trial court's findings supported its conclusion that the fifteen-year-old mentally retarded defendant knowingly and intelligently waived his juvenile and Miranda rights prior to custodial interrogation. State v. Brown, 1623 (NCI4th). A tape of defendant's conversation with his coconspirators was properly authenticated where both coconspirators testified that the tape was a fair and accurate recordation of their conversation with defendant. State v. Baker, 2047 (NCI4th). There was no prejudicial error in a prosecution for first-degree sexual offense involving defendant's eight year old daughter where the trial court excluded testimony that defendant "...could not do anything like this." State v. Ramseur, 2332 (NCI4th). The trial court did not err in allowing an expert witness to discuss the symptoms and characteristics of sexually abused children and to express her expert opinion as to whether a minor child exhibited such characteristics. State v. Hammond, HOUSING, AND HOUSING AUTHORITIES AND PROJECTS 69 (NCI4th). Failure to record an amendment to plaintiff condominium association's by-laws in the office of the Register of Deeds within ten days of adoption as required by the by-laws voided the amendment. Cornerstone Condominium Assn. v. O'Brien, HUSBAND AND WIFE 5 (NCI4th). The trial court properly dismissed plaintiff's claim in her individual capacity for loss of consortium based on the ground that the wrongful death statute encompasses loss of consortium claims since any common law claim encompassed by the wrongful death statute must be asserted by the personal representative for the deceased. Keys v. Duke University, INDICTMENT, INFORMATION, AND CRIMINAL PLEADINGS 9 (NCI4th). An indictment properly charged defendant with the offense of assault with a deadly weapon upon a law enforcement officer even if the caption of the indictment referred to the wrong statute. State v. Allen, INDIGENT PERSONS 19 (NCI4th). Defendant failed to demonstrate the need for State funds to employ an independent psychologist and psychiatrist to assist in his defense. State v. Allen, INSURANCE 530 (NCI4th). Defendant insurance company was not entitled to reduce its $500,000 limit in UIM coverage by the workers' compensation benefits paid or to be paid to plaintiff by another insurance company. Hieb v. St. Paul Fire & Marine Ins. Co., Defendant workers' compensation insurer was entitled to a lien against all amounts paid or to be paid to plaintiff by an underinsured motorist carrier. Ibid. JUDGMENTS 38 (NCI4th). A supplemental judgment in an action under the New Motor Vehicles Warranty Act was vacated where the trial judge entered a supplemental judgment and there was no evidence that the session at which the original judgment had been entered was extended or that the parties consented to entry of the supplemental judgment beyond the session. Buford v. General Motors Corp., 354 (NCI4th). The trial court properly denied plaintiffs' Rule 60(b) motion for relief from an order granting one defendant's motion to dismiss plaintiff's complaint where the order resolved less than all claims in the action and was not a final judgment. Hooper v. Pizzagalli Construction Co., KIDNAPPING AND FELONIOUS RESTRAINT 19 (NCI4th). The evidence was sufficient to support defendant's conviction of second-degree kidnapping by removing the victim from one place to another for the purpose of using him as a shield. State v. Allen, LABOR AND EMPLOYMENT 183 (NCI4th). Defendant heating and air conditioning subcontractor was not liable for the death of a plumbing subcontractor's employee who fell from a scaffold on the ground that defendant breached a duty to the decedent as an invitee where there was evidence that the scaffold was owned by defendant but there was no evidence that defendant gave permission to decedent to use the scaffold or knowingly allowed its use by decedent. Hooper v. Pizzagalli Construction Co., 184 (NCI4th). A general contractor could not be held liable for the death of a plumbing subcontractor's employee who fell from a scaffold on the ground that the general contractor breached a nondelegable duty of safety owed to decedent since the general contractor did not retain control of the manner and method by which the plumbing subcontractor performed its work, the plumbing work was not an inherently dangerous activity, and use of a scaffold to perform the plumbing work was totally collateral to the work as contracted. Hooper v. Pizzagalli Construction Co., 190 (NCI4th). Plumbing work was not an inherently dangerous activity so as to subject a general contractor to liability for the death of a plumbing subcontractor's employee who fell from a scaffold. Hooper v. Pizzagalli Construction Co., Plaintiffs' forecast of evidence was insufficient to show that defendant plumbing subcontractor engaged in conduct substantially certain to cause death or injury so as to give the superior court jurisdiction under Woodson v. Rowland of a claim for the death of an employee who fell from a makeshift scaffold owned by another subcontractor. Ibid. MASTER AND SERVANT 69.1 (NCI3d). The evidence was sufficient to support the Industrial Commission's conclusion that an illiterate, mildly retarded employee who suffered a lower back injury was permanently and totally disabled. Gilliam v. Perdue Farms, NARCOTICS, CONTROLLED SUBSTANCES, AND PARAPHERNALIA 155 (NCI4th). The evidence was sufficient to support an inference of defendant's constructive possession of cocaine found on the seat of a pickup truck where defendant had been sitting. State v. Hodge, 196 (NCI4th). No instructions on lesser included offenses was proper in a prosecution for trafficking in cocaine by possession of more than 200 but less than 400 grams where the tape of a conversation at defendant's home contained discussion of defendant's purchase of 250 grams of cocaine. State v. Baker, PHYSICIANS, SURGEONS, AND OTHER HEALTH CARE PROFESSIONALS 149 (NCI4th). The trial court in a medical malpractice action properly refused to instruct the jury as to defendant's duty to exercise his best judgment in the treatment of plaintiff where there was no testimony tending to show that defendant breached such duty, and the court's instructions on the question of whether defendant exercised reasonable care and diligence in his treatment of plaintiff which used only the precise language of G.S. 90-21.12 were insufficient. Bailey v. Jones, PLEADINGS 384 (NCI4th). Where the trial court denied plaintiffs' motion to set aside an order dismissing plaintiff's complaint, it could not allow plaintiffs' motion to amend their complaint. Hooper v. Pizzagalli Construction Co., 401 (NCI4th). The issue of the statute of limitations was clearly before the trial court by implied consent, and the pleadings were deemed amended. Miller v. Talton, RAPE AND ALLIED OFFENSES 86 (NCI4th). Testimony by a minor child that the sexual acts committed by defendant occurred when she was in kindergarten was sufficient to establish the time frame during which the offenses occurred. State v. Hammond, 195 (NCI4th). A statement by another participant in a gang rape that defendant "wasn't doing it right" was insufficient to raise a reasonable doubt as to whether defendant actually penetrated the victim so as to require an instruction on attempted rape. State v. Brown, 206 (NCI4th). The trial court did not err in a prosecution for first-degree sexual offense by not instructing the jury on taking indecent liberties with a minor because indecent liberties is not a lesser included offense of first-degree sexual offense. State v. Ramseur, SALES 81 (NCI4th). The trial court properly determined that the agreement between the parties for the lease of golf carts contained, by integration, the "golf Car Proposal" and the "Equipment Lease Agreement," and there was no genuine issue of material fact regarding defendant's performance of its warranty obligations where the Equipment Lease Agreement disclaimed all warranties, including any warranties of merchantability and fitness. Beau Rivage Plantation v. Melex USA, SEARCHES AND SEIZURES 77 (NCI4th). Officers' initial stop of defendant was not an unreasonable detention where defendant was stopped at a roadblock set up for the purpose of checking drivers' licenses and registrations. State v. Sanders, 82 (NCI4th). An officer's frisk of defendant at a driver's license check point was lawful where defendant was carrying no identification, defendant had no registration for the car, and the officer observed a bulge in defendant's pocket. State v. Sanders, 58 (NCI4th). An officer properly frisked defendant where there was no evidence that the officer felt a packet of cocaine in defendant's pocket in a manner that invaded the privacy of defendant beyond a pat down for weapons, but his seizure of the packet of cocaine was unreasonable where the officer was never asked whether it was immediately apparent to him that the item he felt was contraband. State v. Sanders, TAXATION 2.3 (NCI3d). The statute granting tax-exempt status to certain homes for the aged, sick, or infirm does not discriminate against persons who own their property for residential purposes in violation of the constitutional rule of uniformity of taxation or in violation of the equal protection clause of the N. C. Constitution. In re Appeal of Barbour, 19.1 (NCI3d). The trial court erroneously determined that plaintiff's private label apple juice products do not require separate registration to be exempt from the excise tax on soft drinks under G.S. 105-113.47. National Fruit Product Company v. Justus The court erred in ordering a refund of excise taxes plaintiff had paid on its vitamin C fortified apple juice products, sold under different product and brand names, because these are separate drinks and must be registered separately to qualify for the juice exemption to the soft-drink excise tax under G.S. 105-113.47. Ibid. Plaintiff was not entitled to a refund of excise taxes paid prior to registration of an apple juice brand as exempt; until a drink is registered, it is taxable. Ibid. 25 (NCI3d). Where a taxpayer closed one of its textile manufacturing plants and sold the equipment and machinery, the equipment and machinery were not inventory held for sale in the regular course of business by a wholesale merchant and were thus not excluded from ad valorem taxation. In re Appeal of Cone Mills Corp., UNIFORM COMMERCIAL CODE 12 (NCI3d). The agreement between the parties was a true lease of golf carts and not a disguised security agreement for the sale of goods, thus making implied warranty of fitness provisions of Art. 2 of the UCC inapplicable. Beau Rivage Plantation v. Melex USA, USURY 1.1 (NCI3d). Late charges recoverable under the parties' Equipment Lease Agreement were not usurious interest prohibited by G.S. 24-10.1 since the provisions of Chapter 24 were inapplicable to a transaction involving a lease. Beau Rivage Plantation v. Melex USA,