Volume 143 — North Carolina Court of Appeals Reports

<bold>1. Appeal and Error — appealability — sovereign immunity</bold> <bold>— personal and subject matter jurisdiction</bold> <block_quote> Defendant's assignment of error to the trial court's failure to grant a Rule 12(b)(6) dismissal for lack of personal jurisdiction on the grounds of sovereign immunity was immediately appealable, while the denial of defendant's Rule 12(b)(6) motion for dismissal for lack of subject matter jurisdiction on the grounds of sovereign immunity was not immediately appealable.</block_quote> <bold>2. Jurisdiction — personal — motion to dismiss —</bold> <bold>matters outside pleadings</bold> <block_quote> The trial court did not err when considering a motion to dismiss for lack of personal jurisdiction due to sovereign immunity<page_number>Page 98</page_number> by considering affidavits from defendant. The trial court did not make findings because neither party requested them; the Court of Appeals was therefore required to determine the sufficiency of the evidence to support the trial court's presumed finding that defendant waived its sovereign immunity either by purchasing liability insurance or by entering a valid contract. Although consideration of matters outside the pleadings converts a Rule 12(b)(6) motion into a motion for summary judgment, there is no a similar restriction on a motion to dismiss for lack of jurisdiction under Rule 12(b)(2).</block_quote> <bold>3. Counties — contract — preaudit certificate</bold> <block_quote> The trial court did not have personal jurisdiction over defendant county for a breach of contract claim regarding leased computer equipment where plaintiff alleged that defendant waived sovereign immunity by entering the lease agreement, but plaintiff did not show that the preaudit certificate required by N.C.G.S. § <cross_reference>159-28</cross_reference>(a) existed. There is no valid contract with a county where a plaintiff fails to show that the requirements of N.C.G.S. § <cross_reference>159-28</cross_reference>(a) were met and defendant therefore did not waive sovereign immunity on these grounds.</block_quote> <bold>4. Counties — leased equipment — no preaudit certificate</bold> <bold>— no recovery under quantum meruit or estoppel</bold> <block_quote> A plaintiff in an action involving leased computer equipment could not recover from a county under theories of quantum meruit or estoppel where there was no valid contract. The preaudit requirement of N.C.G.S. § <cross_reference>159-28</cross_reference>(a) is a matter of public record and parties contracting with a county are presumed to be aware of the requirements.</block_quote> <bold>5. Immunity — governmental — lease agreement —</bold> <bold>proprietary activity</bold> <block_quote> Defendant county was not entitled to governmental immunity against a tort claim for negligent misrepresentation arising from leased equipment because the activity was commercial or chiefly for the advantage of the county.</block_quote>

<bold>1. Homicide — felony murder — voluntary intoxication —</bold> <bold>defense to robbery</bold> <block_quote> The trial court committed prejudicial error in a first-degree murder case based on the felony murder rule by failing to instruct the jury on defendant's voluntary intoxication as a possible defense to the underlying felony of robbery, because: (1) substantial evidence was presented that defendant was intoxicated from consuming a number of beers, a half of a fifth of gin, and two rocks of crack cocaine in roughly four hours without eating anything; (2) a doctor testified that this amount of alcohol, combined with defendant's past alcohol abuse, drug use, and low I.Q. would impair defendant's ability to form the specific intent to rob; and (3) the jury found defendant not guilty of premeditated and deliberated murder, indicating defendant was incapable of forming specific intent, while determining that defendant was capable of the specific intent to rob.</block_quote> <bold>2. Homicide — first-degree murder — failure to instruct on</bold> <bold>second-degree murder</bold> <block_quote> The trial court committed harmless error in a first-degree murder case by failing to instruct the jury on second-degree murder when defendant presented evidence of voluntary intoxication but was acquitted of premeditated and deliberated murder and convicted of felony murder, because second-degree murder cannot be a lesser included offense of first-degree murder based on the felony murder rule alone.</block_quote>