CONTENTS 16 November 1993 ADMINISTRATIVE LAW AND PROCEDURE 30 (NCI4th). Third parties may not seek a contested case hearing to challenge a DEHNR issuance of an air quality permit. Empire Power Co. v. N.C. Dept. of E.H.N.R., 47 (NCI4th). Petitioner's request for a declaratory ruling was properly denied where the ruling would require the agency to determine the same issue determined in a contested case hearing as to whether a statute applied to petitioner's proposed open-heart surgery facility and whether a certificate of need was required. Catawba Memorial Hospital v. N.C. Dept. of Human Resources, The final agency decision which determined that petitioner's operating expenses for the first three years for an open-heart surgery facility would exceed one million dollars and that petitioner was therefore required to obtain a certificate of need was a judicial decision which barred, as res judicata, petitioner's complaint for a declaratory ruling as to the same issues. Ibid. 54 (NCI4th). The superior court lacked jurisdiction to enter an order reversing the final decision of the DHR requiring petitioner to obtain a certificate of need prior to opening a new open-heart surgery facility. Catawba Memorial Hospital v. N.C. Dept. of Human Resources, 55 (NCI4th). A power company and a landowner were aggrieved parties entitled to judicial review of DEHNR's decision to grant an air quality permit to a second power company without requiring an environmental impact statement. Empire Power Co. v. N.C. Dept. of E.H.N.R., APPEAL AND ERROR 421 (NCI4th). Petitioner's appeal is dismissed for violating appellate rules by intertwining the statement of facts, three questions for review, and all arguments. Northwood Homeowners Assn. v. Town of Chapel Hill, ATTORNEYS AT LAW 45 (NCI4th). Testimony by defendant attorney and his associate in a legal malpractice action that they did not publish a legal notice in the same newspaper used by other attorneys in their community was insufficient evidence of the standard of care for attorneys in that community. Haas v. Warren, CEMETERIES AND BURIAL 23 (NCI4th). The State must prove that a deceased person was interred in the cemetery at the time a proscribed act was committed in order to convict a defendant of defacing or desecrating a grave. State v. Phipps, CRIMINAL LAW 762 (NCI4th). The trial court's instructions on reasonable doubt amounted to plain error where the court used the terms "moral certainty" and "honest, substantial misgiving" in its instructions. State v. Harper, DAMAGES 127 (NCI4th). Conduct by public safety officers in stopping and later arresting plaintiff did not amount to the actual malice necessary to sustain a claim for punitive damages. Best v. Duke University, DIVORCE AND SEPARATION 520 (NCI4th). There was no merit to plaintiff's contention that he had been the prevailing party under the parties' separation agreement in earlier actions and was thus entitled to attorney's fees as specified in the remedies provision of that agreement. Brown v. Brown, EMINENT DOMAIN 122 (NCI4th). The trial court in a condemnation action erred in allowing defense witnesses to give opinions regarding the value of defendants' land based entirely on the net income from the operation of defendants' plumbing business on the land. Dept. of Transportation v. Fleming, ENVIRONMENTAL PROTECTION, REGULATION, AND CONSERVATION 63 (NCI4th). Third parties may not seek a contested case hearing to challenge a DEHNR issuance of an air quality permit. Empire Power Co. v. N.C. Dept. of E.H.N.R., A power company and a landowner were aggrieved parties entitled to judicial review of DEHNR's decision to grant an air quality permit to a second power company without requiring an environmental impact statement. Ibid. ESTOPPEL 14 (NCI4th). Equitable estoppel did not apply in an action to recover on a fire insurance policy where plaintiff alleged that defendant knew that plaintiff had transferred the house in question to her mother, plaintiff continued to pay premiums, and the policy did not mention that transfer of the property terminated her insurable interest. Vance v. Wiley T. Booth, Inc., HOSPITALS AND MEDICAL FACILITIES OR INSTITUTIONS 16 (NCI4th). The superior court lacked jurisdiction to enter an order reversing the final decision of the DHR requiring petitioner to obtain a certificate of need prior to opening a new open-heart surgery facility. Catawba Memorial Hospital v. N.C. Dept. of Human Resources, INSURANCE 511 (NCI4th). Business and personal insurance policies issued by defendant to plaintiff did not provide uninsured or underinsured coverage for injuries sustained by plaintiff when the automobile in which he was a passenger was forced off the road by an unknown motorist where plaintiff was injured without making contact with the unknown motorist's vehicle. Johnson v. N.C. Farm Bureau Ins. Co., 728 (NCI4th). Plaintiff did not have an insurable interest in a house which was damaged by fire where she did not own the house, live in it, or otherwise possess it. Vance v. Wiley T. Booth, Inc., LABOR AND EMPLOYMENT 227 (NCI4th). The trial court properly entered summary judgment for defendant car dealership on plaintiff's claim of respondeat superior based on evidence that a car salesman sexually assaulted plaintiff when he took her for a test drive of an automobile. Stanley v. Brooks, 235 (NCI4th). The trial court properly entered summary judgment for defendant car dealership on plaintiff's claim for negligent hiring of a salesman who sexually assaulted plaintiff where her forecast of evidence failed to show that defendant knew or reasonably could have known of the salesman's criminal history prior to the incident with plaintiff. Stanley v. Brooks, MALICIOUS PROSECUTION 17 (NCI4th). The jury could infer malice from the lack of probable cause evidenced by the State's voluntary dismissal of a trespass charge against plaintiff. Best v. Duke University, MASTER AND SERVANT 60.1 (NCI3d). The "bunkhouse" rule did not apply and plaintiff farm worker was therefore not entitled to workers' compensation benefits for injuries he sustained when he allegedly slipped on a piece of soap while exiting the shower at living facilities provided by the employer. Jauregui v. Carolina Vegetables, 77.1 (NCI3d). Plaintiff did not experience a change of condition even though plaintiff had been given a disability rating of 15% shortly after his injury and another doctor gave him a 30% disability rating two years after his injury. Crump v. Independence Nissan, 94 (NCI3d). The full Industrial Commission failed to carry out its duties under G.S. 97-85 by not making its own findings of fact and conclusions to support its disposition of a workers' compensation claim. Jauregui v. Carolina Vegetables, The full Commission complied in substance with G.S. 97-85 in adopting the opinion and award of the Deputy Commissioner. Crump v. Independence Nissan, 94.3 (NCI3d). The Commission properly refused to set aside the original award and to grant plaintiff additional benefits under G.S. 97-30 where plaintiff entered into an agreement for compensation, accepted the benefits of the agreement, and did not contest the agreement until almost two years after entering it. Crump v. Independence Nissan, MUNICIPAL CORPORATIONS 454 (NCI4th). Plaintiff alleged a claim against defendant only in his official capacity so that defendant shared a city's governmental immunity where plaintiff alleged that defendant was operating a fire truck in the course and scope of his employment as a city fireman when the accident between plaintiff and defendant occurred. Taylor v. Ashburn, NEGLIGENCE 6 (NCI4th). Plaintiff's evidence was insufficient to support his claim for negligent infliction of emotional distress where it failed to show that a public safety officer who arrested plaintiff conducted himself differently from a reasonable person in the discharge of official duties of a like nature under like circumstances. Best v. Duke University, PLEADINGS 64 (NCI4th). The trial court did not err in awarding defendant $15,000 in sanctions where plaintiff's complaint failed the legal and factual certification required by Rule 11, plaintiff initiated senseless litigation several times after the parties' separation, and plaintiff filed the complaint to harass defendant and increase the costs of litigation. Brown v. Brown, SEARCHES AND SEIZURES 26 (NCI4th). An officer had probable cause to search defendant where a car in which defendant was a passenger fled at high speed from a residence known for drug trafficking, defendant acted suspiciously after the stop, and during a pat down for weapons, the officer felt a pebble in defendant's pocket which the officer believed to be crack cocaine. State v. Whitted, TAXATION 25.4 (NCI3d). Where the parties entered into a computer lease agreement in which defendant agreed to pay taxes "imposed, assessed or payable" during the term of the lease, and the parties entered into an early termination agreement in June 1991 by which defendant agreed that its obligations under the lease would continue until performed in full, defendant was required to pay property taxes for 1991 even though the tax rate and the actual amount of tax were determined after the date the lease was terminated. Computer Sales International v. Forsyth Memorial Hospital, TRESPASS 2 (NCI3d). Plaintiff's evidence was insufficient to support his claim for intentional infliction of emotional distress where it was based on conduct by officers in stopping and later arresting plaintiff. Best v. Duke University,