CONTENTS 5 and 19 October 1993 ADMINISTRATIVE LAW AND PROCEDURE 30 (NCI4th). The Office of Administrative Hearings lacked subject matter jurisdiction over a petition for a contested case hearing because the petition was filed beyond the 60-day time period specified by G.S. 150B-23(f), the OAH did not obtain jurisdiction by virtue of an earlier opinion of the Court of Appeals in the case, and petitioner's initial attack on the agency's decision in superior court did not toll the time for filing a contested case petition. House of Raeford Farms v. State ex rel. Envir. Mgmt. Comm., 65 (NCI4th). If appellant argues that an agency's decision was based on an error of law, a de novo review is required, and if an appellant questions whether the agency's decision was supported by the evidence or was arbitrary or capricious, the reviewing court must apply the whole record test, but on a subsequent appeal to the Court of Appeals of the trial court's order affirming the agency's decision, review is limited to a consideration of whether the court committed any error of law. In re Appeal by McCrary, 67 (NCI4th). The trial court was required to apply the whole record test in determining whether the Insurance Commissioner's decision to deny coverage was contrary to the evidence presented. In re Appeal by McCrary, ADOPTION OR PLACEMENT FOR ADOPTION 4 (NCI4th). The superior court acquired jurisdiction of an adoption proceeding at the moment the clerk transferred the case because issues of fact and law regarding the natural parents' consent, DSS's consent, and a pending action in New Jersey became considerations. In re Adoption of Duncan, 43 (NCI4th). The trial court could properly set aside the clerk's rescission of the interlocutory decree of adoption without finding an abuse of discretion or error of law by the clerk. In re Adoption of Duncan, ADVERSE POSSESSION 2 (NCI4th). The elements of adverse possession, including hostility, were met where the only elements of adverse possession actually disputed were hostile possession and time of possession; although plaintiff asserts that there cannot be hostile possession unless the true owner of the property is aware that he or she has an interest in the property, she was unable to offer any North Carolina authority to support her position; and it is clear that defendant's occupation and possession has been exclusive and without any recognition of plaintiff's rights. Marlowe v. Clark, 27 (NCI4th). Defendant continuously held the disputed tract for the statutory period to acquire the property by adverse possession under color of title. Marlowe v. Clark, APPEAL AND ERROR 68 (NCI4th). The Department of Revenue lacked standing to appeal from a judgment of imprisonment which included an order that cash seized during the arrest be forfeited and delivered to the School Board of Beaufort County because the Department was not a party to the underlying criminal action. State v. Sneed 155 (NCI4th). Defendant's contention that the consolidation of two indictments against him into one count was improper was not before the appellate court where defendant failed to object to the consolidation, and consolidation did not amount to plain error. State v. Almond, 210 (NCI4th). The Court of Appeals did not have jurisdiction of an appeal because the record on appeal did not contain a sufficient certificate of service of the notice of appeal, but the Court treated the appeal as a petition for a writ of certiorari and granted the writ. Munn v. Munn, 446 (NCI4th). Defendant's contention that the trial court erred by concluding that the codefendants were not partners in an action seeking payment of an amount owed under a contract and damages for unfair or deceptive practices was not heard on appeal because defendant averred in his answer that no partnership existed. Garlock v. Henson, 447 (NCI4th). Defendants could not raise for the first time on appeal their objection to the trial court's ex parte communications with the prosecutor while defense counsel was outside the courtroom. State v. Almond, ARREST AND BAIL 115 (NCI4th). The trial court properly denied defendant's motion to suppress incriminating statements where defendant was arrested at approximately 1:05 p.m. and questioned until about 1:50 p.m., when he asked to see an attorney; he was told that the only attorney available was an assistant district attorney; he was left in the interrogation room until about 7:00 p.m.; and then he was taken with officers while they searched his apartment, during which time he made incriminating statements. State v. Jones, AUTOMOBILES AND OTHER VEHICLES 542 (NCI4th). The trial court erred in an automobile negligence case by instructing the jury that plaintiff pedestrian was required to yield the right of way under G.S. 20-174(a); that statute was inapplicable because plaintiff was crossing a public vehicular area rather than a roadway. Ibid. 559 (NCI4th). The doctrine of contributory negligence has been followed in North Carolina since 1869; comparative fault is not the law of this State and it is beyond the Court of Appeal's authority to adopt the doctrine of comparative fault. Corns v. Hall, 614 (NCI4th). The evidence was not sufficient for a directed verdict on contributory negligence in an action where plaintiff was struck by defendant's pickup truck while walking across a traffic lane at a shopping center. Corns v. Hall, 829 (NCI4th). The area where an accident occurred was a public vehicular area and not a roadway where plaintiff was struck by defendant's pickup truck as she and her husband left a Food Lion grocery store in a typical strip shopping center; there was a paved area approximately thirty feet wide between the stores and the parking lot; and that area consisted of a ten foot wide parcel pick-up lane immediately in front of the store and a twenty foot wide traffic lane. Corns v. Hall, BURGLARY AND UNLAWFUL BREAKINGS 10 (NCI4th). The trial court correctly denied defendant's motion to dismiss charges of second-degree burglary where it was not disputed that defendant broke and entered a condominium at night with intent to commit a felony therein, that the condo was one of approximately seventy available for rent and had been rented on other occasions, and that the condo was not rented on that night. State v. Hobgood, CONSTITUTIONAL LAW 121 (NCI4th). Statutes authorizing the Attorney General to commission as policemen the employees of certain public and private institutions or companies does not violate the Establishment Clause of the First Amendment because it permits employees of a religious institution, Campbell University, to be commissioned as policemen and thereby exercise the authority of the State. State v. Pendleton, 328 (NCI4th). Defendant was not denied his right to a speedy trial by a delay of eight and one-half months from the date of the first indictment to the date of the trial where much of the delay was the result of the State's attempt to have DNA sampling and other tests performed on defendant, and there was no evidence that the failure to send samples taken from defendant to the lab was willful. State v. McClain, COSTS 11 (NCI4th). An offer of judgment was not sufficient to invoke the charging of costs under G.S. 1A-1, Rule 68 where it was not specific as to the offer made to each plaintiff; however, the trial court did have full authority to tax costs to plaintiffs through its discretionary powers pursuant to G.S. 6-20. True v. T & W Textile Machinery COUNTIES 36 (NCI4th). The county commissioners of Guilford County could not be held personally liable at common law or pursuant to G.S. 128-10 for expenditures of county funds used to produce and distribute information concerning upcoming referenda involving redistricting for the election of county commissioners and merger of the public schools of Guilford County. Bardolph v. Arnold, COURTS 19 (NCI4th). There was no abuse of discretion in granting a stay under G.S. 1-75.12 in an action to determine insurance coverage while a similar action proceeded in South Carolina. Lawyers Mut. Liab. Ins. Co. v. Nexsen Pruet Jacobs & Pollard The factors listed in Motor Inn Management, Inc. v. Irvin-Fuller Dev. Co., Inc., 46 N.C. App. 707, for granting a stay under G.S. 1-75.12 are permissive, not mandatory, a court will not have abused its discretion in failing to consider each enumerated factor, and it is not necessary that the trial court find that all factors positively support a stay. However, a court will have abused its discretion if it abandons any consideration of these factors. Ibid. The trial court's application of G.S. 1-75.12 to stay a North Carolina action while a related action proceeded in South Carolina did not violate the open courts provision of Article I, 18 of the North Carolina Constitution. Ibid. CRIMINAL LAW 541 (NCI4th). Defendant was not denied a fair trial by the trial court's failure to inquire if the jury had begun deliberations before all the evidence was presented when a juror advised the court shortly after the trial began that some jurors were discussing the case during a recess where the court gave a curative instruction and defendant made no motion for mistrial. State v. Najewicz, 820 (NCI4th). The trial court did not commit plain error in a rape case by failing to instruct the jury that the prosecutrix and her mother were "interested witnesses" after it had instructed that two defense witnesses were "interested" where defendant made no request for such an instruction. State v. Najewicz, DIVORCE AND SEPARATION 122 (NCI4th). The trial court in an equitable distribution action did not err in classifying half the money advanced from the wife's trust as a gift to the marital estate and the other half as a debt incurred by the marital estate. Munn v. Munn, 165 (NCI4th). The trial court's distribution of marital property had a rational basis where it was based on findings, inter alia, as to the husband's salary, earning capacity and separate liabilities, the wife's income from her trust and past discretionary disbursements from the trust, the wife's lack of employment history, and the wife's contribution of large amounts of separate property to the marital estate. Munn v. Munn, 399 (NCI4th). There was sufficient evidence in the record to support the trial court's finding that the father, an ophthalmologist, was able to pay half of his children's support in an amount of $1,300 per month. Munn v. Munn, The trial court properly ordered the father to pay retroactive child support for the period between the parties' separation and the date of trial where the evidence supported the court's finding that the father was financially able to pay half of his children's support during the time of separation. Ibid. ESTATES 61 (NCI4th). The trial court did not err by granting summary judgment for defendant on the issue of cotenancy; the mere assertion of a cotenancy relationship in plaintiff's complaint was not sufficient to defeat summary judgment when defendant offered evidence to the contrary. Marlowe v. Clark, EVIDENCE AND WITNESSES 110 (NCI4th). Proof of habit by evidence of specific instances of conduct is permitted by G.S. 8C-1, Rule 406; however, the trial court must make certain inquiries to determine the reliability and probative value of the proffered evidence before evidence of specific instances of conduct may be admitted to prove habit. Crawford v. Fayez, The trial court did not abuse its discretion in admitting the testimony of defendant's former patients in a medical malpractice action where plaintiff alleged that defendant negligently prescribed a steroid without discussing possible side effects; the evidence at trial showed that defendant prescribed the drug to twenty-six patients; and five of those former patients testified at trial that defendant had described the possible side effects of the drug. Ibid. 120 (NCI4th). The trial court did not err by failing to allow defendant to cross-examine an alleged rape victim as to whether she had made any previous claims of rape because defendant failed to properly present this issue to the trial court. State v. Najewicz, 122 (NCI4th). The trial court did not err by providing to the State a transcript of defendant's testimony at an in camera hearing held pursuant to the Rape Shield Statute. State v. Najewicz, 694 (NCI4th). The exclusion of testimony by defendant's supervisor in response to defendant's question seeking her opinion as to whether defendant was "capable of raping anyone" was not presented for appellate review where the record fails to show what the testimony of the witness would have been and the answer of the witness was not apparent from the context of the question. State v. Najewicz, 1255 (NCI4th). The trial court properly denied defendant's motion to suppress his inculpatory statement in a prosecution for breaking and entering and larceny where defendant, who had asked to see an attorney during questioning at the police station, was taken with officers while they searched his apartment, defendant was handcuffed and seated on a couch with a detective, there was general conversation between defendant and the detective, and defendant said that he would show officers which items were stolen after he saw that the whole process was upsetting his girlfriend and daughter and making them cry. State v. Jones, 1994 (NCI4th). The trial court erred by excluding parol evidence of representations made during pre-lease negotiations from an action for breach of a lease by nonpayment of rent in which the tenant asserted that the landlord had breached the lease by changing the property from a mall to offices. IRT Property Co. v. Papagayo, Inc. 2047 (NCI4th). Opinion testimony by defendant's supervisor as to whether defendant was "capable of raping anyone" was properly excluded because there was no foundation showing that the opinion called for was rationally based upon the perception and observations of the witness. State v. Najewicz, 2152 (NCI4th). Opinion testimony by defendant's supervisor as to whether defendant was "capable of raping anyone" was properly excluded because the word "raping" is a legal term of art not readily apparent to the witness. State v. Najewicz, 2452 (NCI4th). The trial court did not err in quashing a portion of defendants' subpoenas deuces tecum where the subpoenas were really discovery devices intended to circumvent the normal discovery process. State v. Almond, 3076 (NCI4th). The State was properly permitted to impeach defendant's trial testimony by use of his prior inconsistent testimony at an in camera hearing held under the Rape Shield Statute. State v. Najewicz, FALSE IMPRISONMENT 8 (NCI4th). Plaintiff's forecast of evidence on a false imprisonment claim arising from the involuntary restraint of plaintiff in Butner Hospital was insufficient to create a genuine issue of material fact as to whether defendants followed the requisite procedures or whether the decision to restrain plaintiff was an exercise of professional judgment. Alt v. Parker, FALSE PRETENSES, CHEATS, AND RELATED OFFENSES 5 (NCI4th). The trial court did not deny defendant his right to a unanimous verdict when it consolidated two indictments for obtaining property by false pretenses into one count. State v. Almond, 18 (NCI4th). There was sufficient evidence of misrepresentations and of the causal relationship between the misrepresentations and defendant's receipt of moneys where defendant, as purchasing agent for his company, authorized inflated invoices to be paid and received kickbacks from the inflated amounts. State v. Almond, HOMICIDE 596 (NCI4th). Manner of giving instructions; definitions of terms and use of particular words or phrases, generally The trial court erred in a second-degree murder prosecution when instructing the jury on perfect self-defense by stating that it must have appeared to defendant and he believed it to be necessary to kill the victim; submitting that element of perfect self-defense as stated reads into the defense an intent to kill, which is not part of second-degree murder, and renders impermissibly easier the State's burden of disproving the first element or the second element of perfect self-defense. State v. Richardson, 648 (NCI4th). There was no prejudice in a prosecution for second-degree murder where the prosecutor repeated in closing arguments defense counsel's analogy comparing the right to defend a place of business to the right to defend one's home and the judge interrupted him because the judge's eventual charge to the jury that a person may stand his ground and has no duty to retreat from his place of business cleared up any confusion, real or inferred, allegedly caused by his interruption of the prosecutor. State v. Richardson, INCOMPETENT PERSONS 14 (NCI4th). The clerk of superior court does not have authority to rehear an adjudication of incompetency based on the consent of the parties. In re Ward, INDICTMENT, INFORMATION, AND CRIMINAL PLEADINGS 30 (NCI4th). The trial court properly denied defendant's motion to quash an indictment for false pretenses because it failed to allege in the body thereof the county in which the alleged activities took place. State v. Almond, INSURANCE 528 (NCI4th). The tortfeasor's vehicle was not an underinsured vehicle where, at the time of the accident, the tortfeasor's liability coverage was identical to the plaintiffs' UIM coverage even though the tortfeasor's settlement with a passenger in his vehicle reduced the amount of liability coverage available to plaintiffs to less than that provided by their UIM coverage. Ray v. Atlantic Casualty Ins. Co., The trial court did not err in granting plaintiff's motion for partial summary judgment allowing plaintiff to engage in intrapolicy stacking of the UIM coverage under his father's policy. Miller v. Nationwide Mutual Ins. Co., 679 (NCI4th). The trial court did not err by granting summary judgment for plaintiff insurer in an action to recover a $100,000 deductible where the policy explicitly granted to the plaintiff the right to settle a claim against the insured without the insured's consent, the settlement was for slightly more than the deductible, and defendant conceded that the settlement was reasonable. Nationwide Mutual Ins. Co. v. Public Service Co. of N.C., The trial court did not err by granting summary judgment for plaintiff insurer in an action to recover a deductible where defendant-insured counterclaimed for tortious interference with the fiduciary relationship with its attorney and breach of plaintiff's fiduciary duty to defendant. Ibid. 680 (NCI4th). Effect of settlement in particular situations on rights of insured or person covered by policy The trial court did not err by granting plaintiff insurer's motion for a summary judgment in an action to recover a $100,000 deductible where defendant had argued that the plaintiff's failure to notify defendant of its intention to settle the suit had deprived plaintiff of its right to independent counsel and breached plaintiff's duty to defend but a letter from plaintiff put defendant on notice of the conflict inherent in deductible provisions and of defendant's right to an independent counsel. Nationwide Mutual Ins. Co. v. Public Service Co. of N.C., 911 (NCI4th). The Commissioner of Insurance did not err by failing to apply a "fraud" standard in voiding, ab initio, fire insurance coverage on petitioner's beach property since G.S. 58-3-10 requires only a false and material misrepresentation in order to avoid a policy. In re Appeal by McCrary, A fire insurance policy was properly voided ab initio where there was substantial evidence that petitioner made a false statement in the application that she resided at her beach house when in fact the house was unhabitable. Ibid. The Insurance Underwriting Association did not waive the right to full disclosure concerning occupancy of a beach cottage because it issued a policy of fire insurance on the cottage without physically inspecting the cottage. Ibid. 1135 (NCI4th). The trial court erred by dismissing a claim for bad faith refusal to settle an automobile insurance claim involving intrapolicy stacking where plaintiff alleged that defendant breached its duty of good faith in refusing, without reason, to pay plaintiff the full UIM coverage due under the policy and in refusing to effectuate a prompt, fair and equitable settlement of plaintiff's claim when liability was clear. Miller v. Nationwide Mutual Ins. Co., LANDLORD AND TENANT 11 (NCI4th). The trial court did not err in an action for breach of a lease by not submitting the issues of the landlord's alleged breaches of quiet enjoyment and the implied covenant of good faith and fair dealing. IRT Property Co. v. Papagayo, Inc. 12 (NCI4th). The trial court did not err by denying a directed verdict for a tenant in a breach of lease action in which the tenant claimed that the landlord first breached the lease by changing the property from a shopping area to offices. IRT Property Co. v. Papagayo, Inc. 89 (NCI4th). The trial court acted correctly in an action for breach of a lease by failing to instruct the jury that a material breach by the landlord would relieve the tenant's obligation under the lease to pay rent where the lease included language which clearly and unambiguously states that the tenant is under the obligation to pay monthly rent to the landlord regardless of any defense the tenant could assert. IRT Property Co. v. Papagayo, Inc. The trial court did not err in an action arising from the breach of a lease by not instructing the jury on the requirement of good faith in exercising discretionary powers conferred under a contract where the record is void of any evidence that the landlord exercised its discretionary power to change the nature or use of the shopping center in bad faith. Ibid. MALICIOUS PROSECUTION 17 (NCI4th). The trial court did not err by granting summary judgment for defendants on a malicious prosecution claim where plaintiff, an HIV positive patient at a state mental hospital, became upset and spat upon defendant Parker and a social worker accompanying him; Parker subsequently contacted the Butner police and plaintiff was arrested and indicted for assault with a deadly weapon with intent to kill; the charge of assault with a deadly weapon with intent to kill was dismissed; and plaintiff pleaded guilty to three charges of simple assault. Conviction of a lesser included offense of the charge initiated by the defendant is not a termination in the plaintiff's favor for purposes of a malicious prosecution claim. Alt v. Parker, PARENT AND CHILD 111 (NCI4th). The trial court erred by dismissing a termination of parental rights petition against a father who had insufficient minimum contacts with North Carolina to satisfy due process guarantees. A father's constitutional right to due process of law does not "spring full-blown from the biological connection between parent and child" but instead arises only where the father demonstrates a commitment to the responsibilities of parenthood. In re Dixon, PHYSICIANS, SURGEONS, AND OTHER HEALTH CARE PROFESSIONALS 148 (NCI4th). The trial court did not err in a medical malpractice action in which plaintiff alleged that defendant had prescribed a steroid without discussing possible side effects by instructing the jury, based on G.S. 90-21.13(a)(3), that plaintiff would have to prove that a reasonable person under all the surrounding circumstances would not have given consent. Crawford v. Fayez, PUBLIC OFFICERS AND EMPLOYEES 35 (NCI4th). Plaintiff's complaint did not state a claim against three DOT district engineers in their individual capacities for permitting foliage to obscure a stop sign and cause an accident. Reid v. Roberts, 42 (NCI4th). Petitioner did not become a permanent State employee by tacking two temporary appointments to her three and one-half month permanent position and therefore had no right to appeal her dismissal. Cauthen v. N.C. Dept. of Human Resources, 68 (NCI4th). Plaintiff's complaint failed to state a claim against DOT highway maintenance employees in their individual capacities for permitting foliage to obscure a stop sign and cause an accident. Reid v. Roberts, RAPE AND ALLIED OFFENSES 97 (NCI4th). The evidence was insufficient to support defendant's convictions of first-degree rape and first-degree sexual offense because the State failed to prove that defendant was aided and abetted in the commission of the offenses by one or more persons as charged in the indictments, but the verdicts will be regarded as verdicts of guilty of second-degree rape and second-degree sexual offense. State v. McClain, STATE 4.2 (NCI3d). The trial court did not err by granting summary judgment for defendants on a claim for deprivation of due process rights arising from his involuntary restraint while in a state mental hospital. Alt v. Parker, TAXATION 25.10 (NCI3d). An order of the Property Tax Commission finding a county's assessment of NTI's business personal property null and void which was entered by Chairman Pinna on 4 November 1991 was itself null and void because Pinna's successor was appointed to the Commission by Governor Martin on 17 October and signed an oath of affirmation for the position on 1 November; thus, Pinna was no longer a member of the Commission when he entered the order. In re Appeals of Northern Telecom, UNFAIR COMPETITION 1 (NCI3d). The trial court did not err by awarding damages on an unfair or deceptive practices claim arising from the sale of a bulldozer. Although defendant contends that plaintiff established only a breach of contract, a breach of contract may violate G.S. 75-1.1 when accompanied by aggravating circumstances. Garlock v. Henson, The trial court correctly awarded attorney fees, and the case was remanded for award of a reasonable attorney fee for the appeal, in an unfair or deceptive practices action where defendant contended that the court did not make sufficient findings to support the award, but the court found that defendant willfully committed the acts charged and that there was an unwarranted refusal to settle. Ibid. The trial court did not err in an action for breach of a lease by denying defendant's motion to amend its counterclaim to assert a claim under Chapter 75. IRT Property Co. v. Papagayo, Inc., The trial court erred by dismissing under G.S. 1A-1, Rule 12(b)(6) an unfair or deceptive practices claim arising from an alleged bad faith refusal to settle an automobile insurance stacking claim. Miller v. Nationwide Mutual Ins. Co., UTILITIES COMMISSION 3 (NCI3d). The Utilities Commission's establishment of minimum filing requirements in a certificate of public convenience and necessity case involving an independent power producer did not constitute an unconstitutional exercise of legislative powers; the standard of public convenience and necessity and the policies of the State are sufficient to guide the Commission in deciding a CPCN case and the legislature's delegation of this authority is not unconstitutional. State ex rel. Utilities Comm. v. Empire Power Co., Although an independent power producer contended that the Utilities Commission's deviation from the process prescribed by G.S. 62-82 and 62-110.1 constituted an unconstitutional exercise of the police power of the State, the licensing of independent power producers has a reasonable relation to the creation of a reliable and economical power supply and the avoidance of the costly overbuilding of generation resources and the regulating statute will not be strictly construed because the supply and sale of electricity to other utilities is not an ordinary trade or occupation. Ibid. The Utilities Commission was not required by G.S. 62-82(a) to hold a hearing before dismissing a certificate of public convenience and necessity application; the Commission's authority is described by G.S. 62-60 as that of a court of general jurisdiction and the dismissal of the application here was, therefore, a proper exercise of its authority. Ibid. 5 (NCI3d). The certificate of public convenience and necessity process is sufficiently clear to avoid confusion even if the Utilities Commission finds authority from sections other than G.S. 62-82 and 62-110.1. State ex rel. Utilities Comm. v. Empire Power Co., 15 (NCI3d). The language in G.S. 62-82 requiring automatic issuance of a certificate of public convenience and necessity by the Utilities Commission if the Commission had not ordered a hearing and had not received a complaint within ten days after the last publication of notice did not apply to petitioner, an independent power producer, because the Commission received complaints from Duke Power and CP&L. State ex rel. Utilities Comm. v. Empire Power Co., The Utilities Commission did not err by dismissing an application for a certificate of public convenience and necessity by an independent power producer where the forecast of evidence on the issue of need was inadequate. Ibid. The Utilities Commission may resort to parts of Chapter 62 other than G.S. 62-82 and 62-110.1 (the CPCN sections) for the processing of applications; in so doing, however, the Commission may not, and did not here, deviate from the process which is stated clearly and unambiguously in G.S. 62-82 and 62-110.1. Ibid. 51 (NCI3d). Review of the Utilities Commission's decision to deny a certificate of public convenience and necessity to an independent power producer is governed by G.S. 62-94(b) (1989). State ex rel. Utilities Comm. v. Empire Power Co.,