Volume 147 — North Carolina Court of Appeals Reports

<bold>1. Appeal and Error — invited error — request to publish exhibit to jury</bold> <bold>— reference to polygraph</bold> <block_quote> A first-degree murder defendant waived her right to object to the failure to redact a reference to a polygraph from one of the exhibits where defendant requested that the exhibit be published to the jury even though the court warned that it was not properly redacted. If admission of this evidence was error, it was invited error.</block_quote><page_number>Page 70</page_number> <bold>2. Constitutional Law — State's failure to disclose exculpatory evidence</bold> <bold>— prejudicial</bold> <block_quote> The State violated a first-degree murders defendant's due process rights by failing to disclose cellular telephone records to defendant until after the trial where the trial court found that the records merely corroborated other evidence, but the records also lent crucial support to a witness whose credibility was questioned by the State. Given the court's finding at the motion for appropriate relief hearing that "very little additional evidence" could have changed the verdict and the jury's obvious difficulties in resolving the issues, it cannot be said that the State's failure to disclose exculpatory evidence did not create a reasonable probability of a different verdict.</block_quote>

<bold>1. Statutes of Limitations and Repose — synthetic stucco claims — time</bold> <bold>when damage might have been discovered — summary judgment</bold> <block_quote> Summary judgment should not have been granted for plaintiff in a synthetic stucco action on the issue of whether plaintiffs' claims against the original owners of the house were barred by the statute of limitations where the evidence produced during discovery indicated at least three times at which the defects or damage might have reasonably become apparent to plaintiffs, the last of which occurred within three years prior to the filing of the complaint. N.C.G.S. §§ <cross_reference>1-50</cross_reference>(a)(5)(f), <cross_reference>1-52</cross_reference>.</block_quote> <bold>2. Fraud — synthetic stucco — action against original owner — failure to</bold> <bold>disclose material fact — reasonable reliance</bold> <block_quote> The trial court erred in a synthetic stucco action by granting summary judgment for defendant Mr. Parkinson on a fraud claim, but correctly granted summary judgment for defendant Mrs. Parkinson, where a jury could infer from the evidence that the alleged material defects were known to Mr. Parkinson; Mr. Parkinson knew that the defects were not discoverable in the exercise of plaintiffs' diligent attention or observation; Mr. Parkinson therefore had a duty to disclose the existence of the defects to plaintiffs, which he failed to do; Mr. Parkinson's breach of the duty to disclose was reasonably calculated to deceive and undertaken with the intent to deceive; plaintiffs were in fact deceived; and this deception resulted in damage to plaintiffs. Reasonable reliance is a redundant and unnecessary element in the context of a claim of fraud based on a failure to disclose a material fact.</block_quote> <bold>3. Fraud — negligent misrepresentation — synthetic stucco — statements in</bold> <bold>contract to sell — condition precedent — no liability</bold> <block_quote> Summary judgment for defendants was affirmed as to a negligent misrepresentation claim in a synthetic stucco action<page_number>Page 316</page_number> against the original owners of the house where the statements relied upon by plaintiffs (who purchased the house from defendants were in the contract to sell and were within the context of a condition precedent. As such, they may not be the basis for liability.</block_quote> <bold>4. Contracts — sale of synthetic stucco house — condition of purchase —</bold> <bold>condition precedent — no liability</bold> <block_quote> The trial court in a synthetic stucco action correctly granted summary judgment for defendants Parkinson (the original purchasers who in turn sold to plaintiffs) as to a breach of contract claim where the language relied upon by plaintiffs was in a addendum to the contract and was a condition of purchase. The failure of a plaintiff to comply with conditions precedent in a contract may allow the buyer to terminate the contract prior to closing, but may not subject the seller to liability.</block_quote> <bold>5. Warranties — sale of synthetic stucco house — express warranty claim</bold> <block_quote> The trial court in a synthetic stucco action did not err by granting summary judgment for defendants Parkinson on a breach of express warranty claim. There is no authority indicating that a breach of express warranty claim may be brought upon alleged warranties in a contract for the sale of a dwelling or real property as opposed to goods. The proper cause of action would be a claim for breach of contract.</block_quote> <bold>6. Warranties — implied warranty of habitability — action by subsequent</bold> <bold>purchaser against original owner</bold> <block_quote> Summary judgment was properly granted for defendants Parkinson in a synthetic stucco action on a claim for breach of an implied warranty of habitability where the Parkinsons were the original purchasers of the house who then sold to defendants. This cause of action may only be maintained against a defendant who is both the builder and the vendor of a building, consistent with the rationale that builder-vendors have superior knowledge of the construction process and materials, the ability to avoid defects, and the ability to bear risk.</block_quote> <bold>7. Negligence — synthetic stucco — inspection by builder three years</bold> <bold>after first sale — liability to subsequent purchaser</bold> <block_quote> Summary judgment was properly granted for the builder of a house in a synthetic stucco action by a subsequent purchaser<page_number>Page 317</page_number> where plaintiffs contended that ATD was negligent in its inspection of a window for the original purchaser. The Court of Appeals declined hold that the builder of a house owes a duty to a subsequent owner where the builder was called upon by the original owner to inspect the house for damage more than three years after the house was completed and performed no repair work at that time.</block_quote> <bold>8. Negligence — synthetic stucco — liability of contractor doing</bold> <bold>repairs to subsequent purchaser</bold> <block_quote> The trial court did not err in a synthetic stucco action by granting summary judgment for a company which performed improvement work on the house for the original owners. There is no authority holding that a party which undertakes to repair a house under contract with the original owner owes a duty of care to a subsequent purchaser of the house. Moreover, even if there was a duty of care, there was no forecast of evidence of negligence.</block_quote>

<bold>1. Appeal and Error — contract on behalf of a minor — law of the case</bold> <bold>doctrine</bold> <block_quote> The law of the case doctrine does not preclude the Court of Appeals' consideration of the issues of whether plaintiff's attorney had authority to contract on behalf of the minor and whether the alleged contract on behalf of the minor required court approval in a medical malpractice action, because: (1) neither of the two prior appellate opinions in this same case addressed either of these issues; and (2) the prior appellate decisions only established that defendant doctor was not entitled to summary judgment.</block_quote><page_number>Page 472</page_number> <bold>2. Minors — implied contract — covenant not to sue — medical malpractice</bold> <bold>— court approval required</bold> <block_quote> The trial court erred in a medical malpractice action by allowing the jury to find that there was a valid contract on behalf of a minor not to sue defendant doctor, because: (1) neither the record on appeal nor the brief on behalf of the doctor points to any evidence showing that the alleged implied contract on behalf of the minor was reviewed or approved by the trial court; and (2) it is well-established in North Carolina that a covenant not to sue negotiated for a minor is invalid without investigation and approval by the trial court.</block_quote>

<bold>1. Attorneys — discipline by State Bar — appeal — standards</bold> <block_quote> The State Bar's discipline of attorneys is governed by N.C.G.S. § <cross_reference>84-28</cross_reference>, with the standard of proof in disciplinary and disbarment proceedings being clear, cogent, and convincing evidence. A finding of misconduct allows the Disciplinary Hearing Commission of the State Bar to impose sanctions which include<page_number>Page 582</page_number> admonition, private reprimand, public censure, suspension of law license, or disbarment. Appellate review of State Bar orders is under N.C.G.S. § <cross_reference>84-28</cross_reference>(h), which allows appeal on matters of law and legal inference. The appellate court does not sit as fact-finder and may only review for abuse of discretion where no issue of legal interpretation is raised, and the review is under the whole record test. In this case, the appellate court must determine whether the DHC's findings were supported by substantial evidence in the whole record, whether its findings support its conclusions of law, and whether the DHC abused its discretion in ordering defendant disbarred.</block_quote> <bold>2. Attorneys — mismanagement of trust account — sufficiency of evidence</bold> <block_quote> There was sufficient evidence for the Disciplinary Hearing Commission of the State Bar to conclude that defendant violated N.C. Revised Rules of Professional Conduct 1.15, which deals with trust accounts, where defendant testified that he did not reconcile his trust account, had not maintained accounting records, had commingled his own and his clients' money, had not always deposited settlement checks or paid creditors promptly, that there was money in his trust account of unknown origin, and that he had not escheated any of this money to this State.</block_quote> <bold>3. Attorneys — trust account — management grossly negligent</bold> <block_quote> An assignment of error to a State Bar Disciplinary Hearing Commission conclusion that defendant was grossly negligent in managing his trust account was overruled because the conclusion provided no independent basis for imposition of sanctions and there was substantial evidence that defendant violated the Rules of Professional Conduct.</block_quote> <bold>4. Attorneys — disbarment — mismanagement of trust account</bold> <block_quote> The Disciplinary Hearing Commission of the State Bar abused its discretion by disbarring an attorney who mismanaged his trust account where there were no findings or conclusions that established that any individual client was harmed, defendant's violations of the Rules of Professional Conduct did not evince an intent to defraud the court and did not affect proceedings in court, and the DHC's order made no findings that the defendant's actions threatened harm to the legal profession or to the administration of justice. No reported cases similar to this were found<page_number>Page 583</page_number> in which an attorney was disbarred and lesser sanctions have been imposed for far more serious conduct.</block_quote>

<bold>1. Evidence — investigatory stop — informant's tip — contraband in</bold> <bold>briefcase — motion to suppress</bold> <block_quote> The trial court did not err in a trafficking in cocaine case by denying defendant's motion to suppress evidence obtained from his briefcase during an investigatory stop of a vehicle based on reliable and accurate information the police received from an informant's tip, because: (1) the informant spoke to the detective in person, revealing his identity and admitting to using and dealing cocaine with defendant; (2) although the informant had not been previously relied upon by officers, the face-to-face encounter provided the detective with an opportunity to assess the informant's reliability and demeanor; (3) the informant provided specific details concerning not only existing conditions, but also predictions of defendant's future behavior; and (4) there was sufficient police corroboration of the tip before the stop was made.</block_quote> <bold>2. Search and Seizure — investigatory stop — scope — show of force —</bold> <bold>officers drawing weapons — occupants of vehicle put in handcuffs</bold> <block_quote> The trial court did not err in a trafficking in cocaine case by concluding that the officers' actions did not exceed the scope of<page_number>Page 620</page_number> an investigatory stop even though the officers made a show of force by drawing their weapons and placed the occupants of the vehicle in handcuffs, because: (1) the officers were justified in order to protect themselves when the suspect was considered armed and dangerous based on information provided by an informant; (2) the occupants of the vehicle were uncuffed and the officers put away their handguns once the officers ensured their safety; and (3) defendant's consent to the search of his briefcase was not a product of coercion and was voluntarily given.</block_quote> <bold>3. Search and Seizure — home of another — overnight guest — standing</bold> <block_quote> The trial court did not err in a trafficking in cocaine case by finding that defendant lacked standing to object to the search of his coparticipant's home where contraband was found under the stairwell located in the laundry room even though defendant contends he was an overnight guest temporarily residing in a living area located in the basement area which was connected to the garage and a laundry room, because: (1) defendant has failed to show that he personally has an expectation of privacy in the place searched and that his expectation was reasonable; and (2) at most, the evidence established that defendant was legitimately on the premises.</block_quote>