Volume 138 — North Carolina Court of Appeals Reports

<p>1. Embezzlement— indictment — identity of owner of property</p> <p>An indictment for embezzlement was fatally defective where it alleged that defendant embezzled rental proceeds from an estate. An estate does not constitute a legal entity capable of owning property; the identity of the owner or person in possession should be named in the indictment with certainty to the end that another prosecution cannot be maintained for the same offense.</p> <p>2. Perjury— 90-day estate inventory — misstatement of bank account value</p> <p>The trial court did not err by denying defendant’s motion to dismiss a charge of perjury arising from his listing of a guardianship bank account’s value on a 90-day estate inventory. Defendant’s misstatement was not a matter of making an incorrect statement or an honest mistake; he had misappropriated $10,000 and listed the account as containing $27,885 rather than the actual $17,885. This was a material statement which was intentionally false and which was made under oath.</p> <p>3. Perjury— instructions — materiality of misstatement</p> <p>The trial court erred in a perjury prosecution by giving instructions based on the pattern jury instructions, which resolved the issue of materiality for the jury and removed the question from their consideration. The language of the pattern jury instructions must yield to the holding in United States v. Gaudin, 515 U.S. 506, that the defendant had a constitutional right to have the jury decide materiality.</p> <p>4. Constitutional Law— privilege against self-incrimination— Bar investigation</p> <p>The trial court did not err in a perjury prosecution by admitting into evidence statements made by defendant to State Bar investigators of his own volition. Defendant was never warned that he could be disbarred if he failed to cooperate, he was not in custody, the statements were not extracted under the power of a subpoena, and the statements were not part of an answer to a formal inquiry or complaint. While an attorney should cooperate with State Bar investigations, the choice of whether to cooperate or to invoke the Fifth Amendment privilege is still the attorney’s; however, the privilege against self-incrimination is a personal one which must be claimed to be available. Defendant here did not invoke his Fifth Amendment rights until he reached criminal proceedings. Moreover, the Fifth Amendment privilege does not apply to production of records that an attorney is required by law to maintain.</p> <p>5. Criminal Law — joinder of offenses — no prejudice</p> <p>The trial court did not err by joining for trial 3 counts of embezzling and 3 counts of perjury against an attorney arising from a guardianship where defendant did not show that the offenses were so separate in time and place or so distinct in circumstances as to render a consolidation unjust, and did not show that consolidation prejudiced his ability to present a defense and receive a fair trial.</p> <p>6. Evidence— expert testimony — particular violation of fiduciary standards — clerk of court</p> <p>There was prejudicial error in an embezzlement and perjury prosecution against an attorney arising from a guardianship in the admission of testimony from the clerk and an assistant clerk as to whether an undocumented loan met the reasonable and prudent standard, whether the failure to list the loan as an asset on the guardian’s report would constitute a breach of fiduciary duty, whether it would violate the law for the administrator of an estate to rent property without first obtaining permission from the clerk, and whether it would be illegal to deposit the proceeds into the administrator’s personal account. Although not formally tendered as experts, the clerk and assistant clerk were properly considered as such; however, an expert may not testify that a particular legal conclusion or standard has or has not been met.</p>

<p>Appeal by defendant from judgments entered 28 August 1998 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 February 2000.</p>

On remand by order of the Supreme Court of North Carolina filed 16 February 2000 to reconsider the unanimous decision of the Court of Appeals, Dalton v. Camp, 135 N.C. App. 32, 519 S.E.2d 82 (1999) in light of the decision of the North Carolina Supreme Court in Sara Lee Corp. v. Carter, 351 N.C. 27, 519 S.E.2d 308, reh’g denied, 351 N.C. 191,-S.E.2d —- (1999).

<p>1. Conspiracy— criminal — sufficiency of evidence — passive cognizance</p> <p>The trial court erred by denying defendant’s motion to dismiss the charge of conspiracy to commit murder because: (1) mere passive cognizance of the crime or acquiescence in the conduct of others will not suffice to establish a conspiracy since the conspirator must share the purpose of committing the felony; and (2) the evidence merely establishes a conversation in which defendant made no response to her brother’s suggestions to murder the victim, defendant’s departure for a camping trip the night of the victim’s death, and defendant’s assistance in concealing the crime.</p> <p>2. Evidence— lay opinion — multiple personality disorder</p> <p>Although the trial court erred by admitting the testimony of defendant’s husband that defendant suffered from a multiple personality disorder since a lay witness may not express an opinion as to the existence or nonexistence of a disease or disorder when a person of ordinary experience, knowledge, or training cannot diagnose that disease, it was not prejudicial error in light of the other evidence properly admitted at trial showing defendant’s guilt as an accessory after the fact. N.C.G.S. § 8C-1, Rule 701; N.C.G.S. § 15A-1443(a).</p> <p>3. Evidence— hearsay — state of mind exception — motive</p> <p>The testimony of defendant’s brother concerning whether the victim forced defendant to have sex in order to visit her children was not hearsay because: (1) the testimony was not offered to prove the truth of the matter asserted; (2) the testimony was introduced in an attempt to illustrate the brother’s state of mind regarding the victim, and to show the brother’s motive for killing the victim; and (3) ill-will between a defendant and a crime victim is generally relevant to show possible motive for the crime. N.C.G.S. § 8C-1, Rule 801(c).</p> <p>4. Criminal Law— joinder of defendants — motion to sever— no abnse of discretion</p> <p>The trial court did not abuse its discretion by granting the State’s motion for joinder of defendant and her brother for trial and by denying defendant’s motion to sever, even though defendant contends she was deprived of a fair trial based on the testimony of a clinical psychologist stating that defendant’s brother was concerned for defendant’s mental health and that the antagonism between the victim and the brother was increased by defendant’s report that the victim forced her to have sex in order to get her children back, because: (1) defendant was neither tried nor convicted of murder, and the effect of the pertinent testimony is largely irrelevant to defendant’s actual conviction as an accessory after the fact; (2) the testimony focused on developing the brother’s state of mind, and any reference to defendant marginally effected defendant’s own case; and (3) the State presented plenary evidence of defendant’s guilt on the crime of accessory after the fact.</p>

<p>Aiding and Abetting— burglary — kidnapping—Blankenship rule — specific intent</p> <p>Since the crimes with which defendant was charged occurred prior to the Barnes decision and Blankenship governs, the trial court committed reversible error by failing to include within its jury charge the substance of defendant’s written instruction, requiring a showing of specific intent for the convictions of first-degree burglary and second-degree kidnapping, because: (1) defendant’s conviction for a specific intent crime under an aiding and abetting theory would be improper unless the State proved beyond a reasonable doubt that he personally possessed the requisite mens rea to commit the specified crime; and (2) the trial court’s use of the phrases “knowingly encouraged and/or aided” did not adequately convey the requisite specific intent concept as expressly requested by defendant in writing.</p>

<p>Appeal by defendant from judgment entered 24 April 1998 by Judge Sanford Steelman in Richmond County Superior Court. Heard in the Court of Appeals 16 February 2000.</p>

<p>Appeal by defendants from an opinion and award entered 22 January 1999 by the North Carolina Industrial Commission. Heard in the Court of Appeals 24 February 2000.</p>

<p>1. Constitutional Law— double jeopardy — convictions for second-degree murder and impaired driving — no violation</p> <p>The trial court did not violate defendant’s double jeopardy rights by sentencing him for second-degree murder under N.C.G.S. § 14-17 and impaired driving under N.C.G.S. § 20-138.1 because: (1) the legislature intended to create two separate offenses, as evidenced by the fact that second-degree murder is controlled by structured sentencing while punishment for driving while impaired is not; (2) the Court of Appeals has previously allowed upheld convictions for second-degree murder and driving while impaired in the same trial; and (3) driving while impaired is not a lesser included offense of second-degree murder, and malice is not equated with driving while impaired.</p> <p>2. Evidence— prior bad acts — driving while impaired — prior conviction — pending charge — malice</p> <p>The trial court did not err in a prosecution for second-degree murder and driving while impaired by admitting evidence of defendant’s prior conviction and pending charge for impaired driving because: (1) the 1991 conviction was probative of defendant’s state of mind and to show malice; and (2) the pending 1997 driving while impaired case is admissible as evidence of malice to support a second-degree murder charge, and the trial court properly instructed that the 1997 incident pertained to a pending trial rather than a conviction. N.C.G.S. § 8C-1, Rule 404(b).</p> <p>3. Homicide— second-degree murder — driving while impaired— sufficiency of evidence — malice</p> <p>The trial court did not err by denying defendant’s motion to dismiss the charge of second-degree murder because: (1) the State need not show that defendant intended to kill in order to establish malice, but instead may meet its burden by showing that defendant had the intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result; and (2) the evidence reveals malice since defendant drove while impaired by alcohol and at a time when his license was in a state of permanent revocation, he was previously convicted in 1991 for driving while impaired, and he had a 1997 conviction for driving while impaired that was on appeal.</p>

<p>Appeal by plaintiffs from order entered 8 March 1999 by Judge L. Oliver Noble in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 March 2000.</p>

<p>1. Taxation— privilege — dealing in installment paper — intent to profit immaterial</p> <p>Although the trial court did not err by granting summary judgment for Chrysler Financial on a claim for refund of privilege taxes assessed against its wholesale financing business, Chrysler Financial was engaged in the business of dealing in installment paper under the plain meaning of N.C.G.S. § 105-83; it is immaterial whether Chrysler Financial’s engagement in this business was intended for or resulted in making a profit.</p> <p>2. Taxation— privilege — wholesale automobile financing — activity not in North Carolina</p> <p>The trial court did not err by granting summary judgment for Chrysler Financial in an action for a refund of privilege taxes assessed against its wholesale financing business under N.C.G.S. § 105-83. The agreement with Chrysler Corporation to purchase installment paper was executed in Michigan and the buying and selling of the paper takes place entirely in Michigan. Other activities such as the perfection of a security interest in North Carolina do not arise in the course of the buying or selling of the credit sale agreement or have no relation to the buying or selling of the installment paper.</p>

<p>1. Child Support, Custody, and Visitation— support — guidelines — multiple children from multiple mothers</p> <p>The trial court did not err in concluding that the Child Support Guidelines apply to a situation where one individual might father multiple children from multiple mothers, because the Guidelines specifically provide adjusted gross income is to be computed by deducting from a party’s gross income any child support actually made by a party under any pre-existing court order or separation agreement.</p> <p>2. Child Support, Custody, and Visitation— support — guidelines — credit to gross income — pre-existing court order or separation agreement</p> <p>Although the Child Support Guidelines provide that a party is entitled to a credit to gross income for any child support paid pursuant to a pre-existing court order or separation agreement, the trial court did not err in adjusting defendant’s gross income for the amount of monies he actually paid under the 1996 orders for the benefit of children other than the children subject to the specific claim at issue because at the time of the simultaneous adjudication of multiple child support claims filed by different mothers against defendant father, the 1996 orders of child support were the only pre-existing orders of support.</p> <p>3. Child Support, Custody, and Visitation— support — guidelines — findings</p> <p>A child support order for five children amounting to 66% of defendant’s gross income is reversed and remanded because the trial court does not reveal any findings as to whether the support set pursuant to the Guidelines would exceed, meet, or fail to meet the reasonable needs of the children, or whether support set pursuant to the Guidelines would be “unjust or inappropriate.”</p> <p>4. Child Support, Custody, and Visitation— support — health insurance</p> <p>The trial court erred in ordering defendant father to carry health insurance for his minor children without first determining its availability at a reasonable cost. N.C.G.S. § 50-13.11(al).</p> <p>5. Child Support, Custody, and Visitation— support— increase — consent of parties</p> <p>The trial court erred in a temporary memorandum order by increasing child support to $300 per month because although the order indicates on its face that it was entered on the basis of the consent of both parties, that consent does not appear in this record and there is no other basis to support the order.</p>

<p>1. Parties— motion to amend — joinder of counsel — no valid claim</p> <p>The trial court did not err in denying defendants’ motion to amend in order to join plaintiff’s counsel for purposes of defendants’ counterclaims because defendants could not have asserted a valid claim against plaintiff’s counsel under the North Carolina Debt Collection Act in the first place. N.C.G.S. § 1A-1, Rule 13(h).</p> <p>2. Consumer Protection— Debt Collection Act — federal act— homeowners’ association</p> <p>The trial court properly dismissed defendants’ unfair debt collection counterclaim against a homeowners’ association under the federal Fair Debt Collection Practices Act because this Act only applies to those who regularly collect debts on behalf of others, and it does not apply to creditors trying to collect their own debts.</p> <p>3. Consumer Protection— Debt Collection Act — state act — action against homeowners’ association</p> <p>The trial court erred in dismissing defendants’ unfair debt collection counterclaim against a homeowners’ association under the North Carolina Debt Collection Act because: (1) the three threshold requirements have been met since defendant-homeowners are consumers incurring an obligation for family or household purposes, homeowners’ association dues and assessments are debts, and plaintiff-homeowners’ association is a debt collector; and (2) the three generalized requirements of all unfair or deceptive trade practice claims under N.C.G.S. § 75-51 have been met since plaintiff represented that the amount needed to satisfy the obligation included attorney fees well in excess of the fifteen percent limit, plaintiff’s collection of dues and assessments was a business activity in or affecting commerce, and defendants have alleged that plaintiffs actions have injured their credit reputations and caused them emotional distress.</p> <p>4. Costs— attorney fees — notice—prejudgment interest</p> <p>The trial court erred in granting summary judgment in favor of plaintiff for its claim for attorney fees because the forecast of evidence does not establish whether plaintiff complied with the statutory notice requirement in N.C.G.S. § 6-21.2(5), and therefore, the trial court’s grant of prejudgment interest is also improper until a determination is made as to whether the notice requirement had in fact been met.</p>

<bold>1. Divorce — Alimony — dependency — findings not specific</bold> <block_quote> An order finding defendant not to be a dependent spouse and denying her claim for alimony was remanded where the court's findings were insufficiently detailed or specific. The court must provide sufficient detail to satisfy a reviewing court that it has considered all relevant factors and it is not enough that there is evidence in the record from which such findings could have been made.</block_quote> <bold>2. Divorce — Alimony — standard of living — savings and retirement</bold> <bold>contribution</bold> <block_quote> The trial court erred in an alimony action by failing to consider the parties' contributions to savings and retirement in determining accustomed standard of living where evidence was presented that established a historical pattern of such contributions.</block_quote> <bold>3. Divorce — Alimony — pending equitable distribution claim</bold> <block_quote> The trial court erred in an alimony action by speculating about the results of a pending equitable distribution between the parties. The issues of amount and whether a spouse is dependent may be reviewed after the conclusion of the equitable distribution claim. N.C.G.S. § <cross_reference>50-16.3A</cross_reference>(a).</block_quote><page_number>Page 468</page_number>

<bold>1. Contracts — Action for breach — no meeting of the minds</bold> <block_quote> The trial court did not err by entering summary judgment in favor of defendants on a breach of contract claim in a case where a written instrument containing the exact terms of the parties' understanding was never executed.</block_quote><page_number>Page 583</page_number> <bold>2. Trust — Resulting — no binding agreement</bold> <block_quote> The trial court did not err by entering summary judgment in favor of defendants on plaintiff's claim that the pertinent beach condominium was subject to a parol resulting trust.</block_quote> <bold>3. Trust — Constructive — no position of trust or confidence</bold> <block_quote> The trial court did not err by entering summary judgment in favor of defendants on plaintiff's claim that the pertinent beach condominium was subject to a constructive trust.</block_quote> <bold>4. Unfair Trade Practices — Breach of contract — insufficient</bold> <block_quote> The trial court did not err by dismissing defendants' claim for unfair and deceptive trade practices based on plaintiff's alleged failure to keep his promise to assist defendants in purchasing a beach condominium.</block_quote>

<bold>1. Evidence — Affidavits — summary judgment — not based on personal</bold> <bold>knowledge</bold> <block_quote> Affidavits were not admissible as evidence at a summary judgment hearing in a medical malpractice action where the assertions in the affidavits (with one exception) did not reveal that they were based on the witness's personal knowledge. Affidavits supporting a motion for summary judgment must be made on personal knowledge and affirmations based on personal awareness, information and belief, and what the affiant thinks do not comply with the personal knowledge requirement. N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 56(e).</block_quote> <bold>2. Hospitals and Other Medical Facilities — Medical malpractice — agency</bold> <bold>of anesthesiologist</bold> <block_quote> Summary judgment was properly granted for defendant hospital in a medical malpractice action where the hospital presented evidence of the agreement between it and the medical practice to which defendant anesthesiologist belonged which satisfied the hospital's initial burden of showing that it had no right to control the manner or method of the doctor's work at the hospital. The burden shifted to plaintiff to present evidence showing a genuine issue of fact on the agency question; while plaintiff presented hospital policies, the duties outlined therein were general in nature and do not reveal any control by the hospital over the manner and method of how the doctor performed his duties.</block_quote> <bold>3. Hospitals and Other Medical Facilities — medical malpractice — agency</bold> <bold>of doctor — summary judgment</bold> <block_quote> Summary judgment for a hospital in a medical malpractice action based on Dr. Koontz's alleged negligence was reversed where the hospital presented no competent evidence of the nature of its relationship with Dr. Koontz.</block_quote><page_number>Page 630</page_number>