Volume 103 — North Carolina Court of Appeals Reports

1. Jury 1 (NCI3d); Narcotics 6 (NCI3d) — remission of vehicle forfeiture — no right to jury trial There is no right to a jury trial of a claim under N.C.G.S. <cross_reference>90-112.1</cross_reference> for remission of forfeiture of a vehicle used in violation of the controlled substances laws. Am Jur 2d, Forfeitures and Penalties 44. 2. Narcotics 6 (NCI3d) — remission of vehicle forfeiture — interest in vehicle — knowledge of illegal use — value of interest The evidence did not support the trial court's determination that a claimant for remission of a seized vehicle under N.C.G.S. <cross_reference>90-112.1</cross_reference> did not have an interest in the vehicle acquired in good faith prior to the seizure where all the evidence showed that title had been transferred to the claimant under N.C.G.S. <cross_reference>20-72</cross_reference> (b) at the time the vehicle was seized, and claimant's evidence showed that he paid for the vehicle and transferred title to defendant only upon condition that defendant reimburse him for part of the purchase price, and that defendant's failure to make any payments to claimant was the sole reason claimant again acquired the title. On remand, the trial court must make findings with respect to claimant's knowledge or reasonable belief as to the use of the vehicle in violation of the controlled substances laws and the value of claimant's interest in the vehicle.<page_number>Page 247</page_number> Am Jur 2d, Forfeitures and Penalties 49. <block_quote> Supreme Court's views as to due process requirements of forfeitures. <cross_reference>76 LEd 2d 852</cross_reference>.</block_quote>

1. Divorce and Separation 15 (NCI4th) — separation agreement — division of medical malpractice claim — construction of provision The trial court properly granted summary judgment for plaintiff in an action to enforce a provision in a separation agreement requiring defendant to pay to plaintiff one-fourth of any "net recovery after attorney fees" from a medical malpractice claim. While other out-of-pocket expenses would generally be deducted from the gross proceeds as part of the determination of the net recovery, the parties have expressly set out<page_number>Page 377</page_number> the deductible item and there is no further room for interpretation. Am Jur 2d, Divorce and Separation 838, 856, 913. 2. Divorce and Separation 37 (NCI4th) — separation agreement — division of medical malpractice claim — summary judgment The trial court did not err by granting summary judgment for plaintiff in an action to enforce a provision in a separation agreement granting plaintiff a share in defendant's medical malpractice claim. Plaintiff's complaint alleged and defendant's answer admitted the execution of a separation agreement which contained a provision that defendant would pay plaintiff one-fourth of the net recovery of his malpractice case after attorney's fees, defendant provided plaintiff with a copy of the release which states that the case was settled for $50,000, copies of checks show that defendant paid $20,000 in attorney's fees, and plaintiff's complaint alleged a claim for damages of $7,500, one-fourth of the $30,000 received by defendant. Plaintiff's evidence was clearly sufficient to show a breach of contract, and the court did not err by not making findings of fact. Am Jur 2d, Divorce and Separation 838, 856, 913.

Master and Servant 108.1 (NCI3d) — unemployment compensation — misconduct — attendance The superior court correctly upheld the decision of the Employment Security Commission to disqualify claimant from receiving unemployment benefits for nine weeks where the employer's attendance policy was reasonable in that each employee was given 100 points; points were deducted for absences commensurate with the degree of departure from expected conduct; the policy was accommodating to employees' needs to deal with the exigencies of everyday life in that an opportunity to regain lost points was provided and counseling was provided for low point totals; all employees were<page_number>Page 586</page_number> told early and often that a zero point total would result in discharge; claimant had reasonable control over her ability to conform her conduct to the requirements of the employer's attendance policy; and claimant was constantly and routinely late or tardy and was discharged for excessive tardiness and absenteeism in violation of her employer's attendance policy. In light of the reasonableness of the employment policy and claimant's ability to control her own destiny with respect to that policy, her failure to do so constituted substantial fault. Am Jur 2d, Unemployment Compensation 58. <block_quote> Discharge for absenteeism or tardiness as affecting right to unemployment compensation. 58 ALR3d 674.</block_quote>

Divorce and Separation 427 (NCI4th) — child support — two children — amount not allocated — one child reaching majority — unilateral reduction The trial court was without authority to modify past due child support payments where an order was entered in South Carolina in 1985 awarding plaintiff custody of the two children, $402 in child support, and alimony; the older child reached the age of 18 years in 1987; defendant unilaterally reduced the amount of child support by what he thought to be one-half in 1988, although he was actually paying $9 per month less than one-half; defendant was awarded custody of the other child in 1990; and the trial court in this action awarded plaintiff $288, representing the accumulated error in defendant's computation of one-half the original amount. Until an application for modification is made by the supporting parent, and as long as at least one child for whom support was ordered remains a minor, the full amount of the support obligation not allocated by child remains enforceable and continues to accrue and vest as it becomes due. N.C.G.S. <cross_reference>50-13.10</cross_reference>. Am Jur 2d, Divorce and Separation 1050. <block_quote> Comment Note — Propriety and effect of undivided award for support of more than one person. 2 ALR3d 596.</block_quote>

1. Municipal Corporations 21 (NCI3d) — sewage overflow — tort liability — no municipal immunity Defendant city was not immune from tort liability in an action in which plaintiffs sought damages for the negligent maintenance, operation, and repair of defendant's sewer lines, resulting in an overflow into plaintiffs' home. It seems to be the accepted practice in North Carolina for cities and towns to compete with private enterprise by the ownership and operation of public enterprises, including sewer services. Additionally, N.C. courts have clearly stated that municipalities act in a proprietary role in setting rates for public enterprise services. The modern tendency to restrict the application of governmental immunity must apply in this case. <block_quote> Am Jur 2d, Municipal, County, School, and State Tort Liability 363.</block_quote> <block_quote> Municipal operation of sewage disposal plant as governmental or proprietary function, for purposes of tort liability. 57 ALR2d 1336.</block_quote> 2. Municipal Corporations 21 (NCI3d) — sewage overflow — negligence of city — summary judgment improper The trial court improperly granted summary judgment for defendant city in a negligence action arising from a sewage overflow where the evidence showed that defendant had been notified of other blockages of this same sewer main and had failed to adequately inspect the mains for subsequent blockage; plaintiffs had suffered no damage to their home before defendant's crew responded to repair the clog; defendant possessed adequate equipment, if used properly, to unclog the sewer main; and raw sewage was forced through plaintiffs' sewer pipes and into plaintiffs' home during defendant's attempts to unclog the sewer main. This forecast of evidence was sufficient to raise the issues of whether defendant negligently failed to inspect its sewer lines or acted negligently in repairing the sewer lines.<page_number>Page 749</page_number> <block_quote> Am Jur 2d, Municipal, County, School, and State Tort Liability 376, 388.</block_quote> <block_quote> Municipality's liability for damage resulting from obstruction or clogging of drains or sewers. 59 ALR2d 281.</block_quote> 3. Municipal Corporations 21 (NCI3d) — sewage overflow — application of city ordinance — absence of backflow valve — summary judgment The trial court improperly granted summary judgment for defendant city in an action arising from a sewage overflow into plaintiffs' home where defendant alleged that the action was barred by a city ordinance concerning plumbing fixtures below street level and by the failure of plaintiffs to install a back-flow valve. The applicability of the ordinance would not absolve defendant, but would raise issues of whether plaintiffs' plumbing fell within the ordinance and whether such conditions contributed to their injury. The backflow valve issue was highlighted but not settled by the forecast of evidence. <block_quote> Am Jur 2d, Municipal, County, School, and State Tort Liability 360.</block_quote>

Municipal Corporations 30.20 (NCI3d) — moratorium on building permits pending zoning — no notice before ordinance adopted — ordinance invalid An ordinance passed by the Iredell County Board of Commissioners imposing a moratorium on building permits pending zoning was invalid, since there was no notice to the public or advertised public hearing prior to adoption of the ordinance as required by N.C.G.S. <cross_reference>153A-323</cross_reference>. Am Jur 2d, Zoning and Planning 72, 74, 338.

Insurance 121 (NCI3d) — fire insurance — actions leading to fire arising out of business pursuit — summary judgment improper In a declaratory judgment action to determine whether a homeowners policy issued by plaintiff to defendants covered a fire started by their son which destroyed a building which appellant owned and was using in his foam rubber business, the trial court erred in holding by summary judgment that the policy did not cover the fire involved on the ground that the actions which led to the fire arose out of a business pursuit, since the conflicts and contradictions concerning the son's activities and purpose in striking the matches which caused the building and its contents to be destroyed raised an issue of fact which was material. Am Jur 2d, Insurance 478.