Volume 135 — North Carolina Court of Appeals Reports

<bold>1. Insurance — homeowner's policy — exclusion</bold> <bold>— boating accident</bold> <block_quote> The trial court did not err in a declaratory judgment action by excluding a boating accident from a homeowner's policy where plaintiff-insurer had shown the existence and applicability of a policy exclusion applying to watercraft and defendants contended that the exclusion did not apply because they had declared the watercraft as required by the policy in that their agent had previously written a boatowner's policy and had all of the information concerning the boat. The term "declare" is neither technical nor ambiguous and requires affirmative action by defendant; the agent's mere knowledge that plaintiffs owned a boat which would otherwise be excluded did not amount to a declaration by plaintiffs that they intended that the boat be covered.</block_quote> <bold>2. Insurance — exclusion — grounds stated in denial</bold> <bold>letter — sufficient</bold> <block_quote> An insurance company did not waive a policy exclusion by not asserting it in the denial letter where the letter clearly placed defendants (the policy holders) on notice of the grounds asserted for denial. Plaintiff was not required to anticipate the exception to the exclusion which defendants asserted.</block_quote>

<italic>Search and Seizure — trafficking in cocaine — motion to</italic> <italic>suppress — evidence of consent conflicting — need specific</italic> <italic>finding of voluntary consent</italic> <block_quote> The trial court's denial of defendant's motion to suppress all evidence that was obtained as a result of the police entering his hotel room in a trafficking in cocaine case must be remanded for further consideration and findings because the evidence as to defendant's consent was conflicting and the trial court did not include a specific finding as to whether defendant voluntarily consented to the search of the hotel room.</block_quote>

<bold>Sentencing — structured — plea agreement — aggravating</bold> <bold>range — necessary written findings</bold> <block_quote> The trial court erred in sentencing defendant, who entered a plea of guilty for assault with a deadly weapon inflicting serious injury, in the aggravating range even though the plea agreement gave the trial court discretion in sentencing because N.C.G.S. § <cross_reference>15A-1340.16</cross_reference>(b) and (c) requires the trial court to make the necessary written findings before deviating from the presumptive sentence of Structured Sentencing.</block_quote>

<bold>1. Evidence — hearsay — directive statement</bold> <block_quote> The trial court did not err in a prosecution for providing drugs to an inmate by admitting testimony that defendant's boyfriend, an inmate, said "hurry" or "leave" to her as she was departing. Directives are not hearsay when they are simply<page_number>Page 618</page_number> offered to prove that the directive was made, not to prove the truth of any matter asserted.</block_quote> <bold>2. Evidence — relevance — guilt of third party</bold> <block_quote> The trial court did not err in a prosecution for providing drugs to an inmate by excluding cross-examination questions by defendant which defendant contends would have shown that the marijuana could have come from someone else. Defendant's proffered cross-examination only sought to raise the inference that some third party might have smuggled the marijuana and did not point to any specific person.</block_quote> <bold>3. Drugs — supplying drugs to inmate — sufficiency of evidence</bold> <block_quote> The trial court did not err by refusing to dismiss for insufficient evidence a charge of providing drugs to an inmate where defendant visited her boyfriend, an inmate at the Alexander County jail; they spoke in a cubicle, separated by a glass window; following their conversation, defendant was seen rising from a squatting position and her boyfriend was seen picking something up near the jail door; there was a separation between the door and the floor; the boyfriend told defendant to hurry and to leave when a jailer and a deputy questioned him; and a marijuana cigarette was found in defendant's hand.</block_quote>

<bold>1. Appeal and Error — preservation of issues — voluntary dismissal</bold> <block_quote> Defendant's failure to appeal did not preclude consideration of assignments of error and arguments addressed to the voluntary dismissal of a claim. While an involuntary dismissal under Rule 41(b) constitutes a discretionary action of the trial court and a party who fails to appeal such dismissal is bound thereby, a Rule 41(a) (1) dismissal emanates from a party's election to dismiss a claim and is not based upon an order or discretionary ruling of the court. It appears that any attempt by defendant to appeal plaintiff's Rule 41(a) (1) dismissal would have been ineffective because, under N.C.R. App. P. 3(a), appeal may be taken only from a judgment or order of a superior or district court.</block_quote> <bold>2. Trials; Divorce — alimony — voluntary dismissal — statutory</bold> <bold>amendment — new action</bold> <block_quote> Summary judgment should not have been granted in favor of plaintiff and should have been granted for defendant where defendant instituted a divorce action, plaintiff responded with a counterclaim seeking alimony pursuant to N.C.G.S. § <cross_reference>50-16.1</cross_reference> (since repealed), defendant asserted as an affirmative defense that plaintiff had engaged in an adulterous relationship, the parties were divorced with the judgment providing that matters pertaining to alimony were retained for a later date, plaintiff filed a voluntary dismissal without prejudice under Rule 41(a), plaintiff filed a new complaint seeking alimony under the new N.C.G.S. § <cross_reference>50-16.1A</cross_reference>(3)a, defendant stipulated that he had committed illicit sexual behavior under that statute and plaintiff admitted that she had not "remained celibate" from the separation to the divorce, and the trial court granted summary judgment for plaintiff. Under the prior statute, proof that a dependent spouse (plaintiff, here) had committed adultery anytime prior to entry of divorce provided the supporting spouse (defendant, here) an absolute defense against alimony notwithstanding similar conduct by the supporting spouse, while the new statute focuses solely upon misconduct prior to separation. Considering the invalidation of a statutory absolute defense for alimony which defendant enjoyed<page_number>Page 636</page_number> as a vested right at the time plaintiff voluntarily dismissed her first claim for alimony and the subjection of defendant to new liability which did not previously exist, it cannot be said that the second claim constituted a new action on the same claim earlier dismissed, particularly upon viewing the entire history of the litigation between the parties. While the procedural remedy of alimony previously existed, the substantive rights of the parties are now different and the second claim constituted a new and distinct claim for alimony which is barred.</block_quote>