Volume 151 — North Carolina Court of Appeals Reports

<bold>1. Contracts — acquisition of real estate — apparent</bold> <bold>authority of realtor</bold> <block_quote> The trial court properly granted defendants' motion for judgment notwithstanding the verdict as to plaintiff's claim for breach of contract in an action arising from an attempt to buy real estate where a realtor with defendant High Rock orally agreed to attempt to facilitate plaintiff's purchase of certain property; the realtor was acting within the scope of his apparent authority when he did so and the principal's liability is determined by the authority which a person exercising reasonable care would believe had been conferred on the agent; plaintiff knew or should have known that the realtor could no longer act for High Rock after he left to form his own agency; and there was no evidence that plaintiff ever entered into any agreement with another High Rock realtor who eventually sold the property to a third-party.</block_quote> <bold>2. Fiduciary Relationships — acquisition of real</bold> <bold>estate — insufficient evidence</bold> <block_quote> The trial court properly granted defendants' motion for judgment notwithstanding the verdict on a breach of fiduciary duty claim arising from an alleged agreement with a realtor for the<page_number>Page 245</page_number> acquisition of real estate where there was no evidence of a fiduciary relationship between plaintiff and defendants.</block_quote>

<bold>1. Evidence — other offenses — similar testimony elicited by</bold> <bold>defendant — no prejudice</bold> <block_quote> There was no prejudicial error in a murder prosecution where the court admitted testimony on direct examination tending to show that defendant had used and supplied drugs and that defendant had orchestrated a scheme to obtain refunds by returning stolen clothing. Defendant elicited similar testimony on cross-examination.</block_quote><page_number>Page 500</page_number> <bold>2. Criminal Law — instruction on flight — sufficiency of</bold> <bold>evidence</bold> <block_quote> The trial court did not err in a murder prosecution by instructing the jury on flight where defendant provided no assistance to the victim after shooting him; fled the scene of the shooting and disposed of his gun; and did not voluntarily contact the police or turn himself in, but merely cooperated once he was contacted by the police.</block_quote> <bold>3. Homicide — murder — old firearm — no evidence of</bold> <bold>unintentional firing — no instruction on involuntary</bold> <bold>manslaughter</bold> <block_quote> The trial court did not err in a murder prosecution by not submitting involuntary manslaughter to the jury where defendant contended that the shooting occurred through the mishandling of an old firearm, but there was no evidence tending to show that this particular firing of the gun was unintentional. In fact, there was evidence that defendant fired the gun intentionally.</block_quote> <bold>4. Sentencing — determination of prior record level — State's</bold> <bold>worksheet — construed stipulation by defendant</bold> <block_quote> There was no error in a second-degree murder sentencing proceeding where the court determined defendant's prior record level from a worksheet prepared by the State. Although a worksheet prepared by the State is insufficient to satisfy the State's burden, statements by defendant's attorney here may be construed as a stipulation that defendant had been convicted of the charges listed on the worksheet.</block_quote>

<bold>1. Estoppel — child support modification — detrimental</bold> <bold>reliance not shown</bold> <block_quote> The trial court did not err in a child support case in which the parties agreed between themselves to reduce the support by concluding that equitable estoppel did not apply. Although defendant may have relied on the oral agreement and letter to reduce her payment, she did not demonstrate that such reliance was to her detriment.</block_quote><page_number>Page 547</page_number> <bold>2. Child Support, Custody, and Visitation — support —</bold> <bold>modification by parties — later action for arrears</bold> <block_quote> The trial court correctly ordered payment of child support arrears where the parties had agreed between themselves to a reduction, but there was no judicial modification of the earlier order.</block_quote>

<p>1. Workers’ Compensation— injury to Rescue Squad volunteer — membership in Rescue Squad</p> <p>The Industrial Commission did not err in a workers’ compensation action by finding and concluding that plaintiff was a volunteer member of the Rescue Squad where plaintiff began as a volunteer member of the Long Beach Volunteer Rescue Squad, became a paid member of the Oak Island EMS, became an honorary member of the Long Beach squad who could return to active duty during extenuating circumstances, and she was injured during Hurricane Floyd relief efforts when she completed her Oak Island shift and volunteered at Long Beach. Extenuating circumstances existed.</p> <p>2. Workers’ Compensation— emergency management volunteer — injury compensable</p> <p>The Industrial Commission did not err by finding and concluding that plaintiff’s claim, was compensable pursuant to the N.C. Emergency Management Act where plaintiff volunteered during Hurricane Floyd relief efforts and was injured while on patrol. Although the record reveals that plaintiff was bored and wanted to ride in the Humvee because it was fun, help was needed on a continuous basis and it is irrelevant whether plaintiff was responding to a call at the time of her injuries.</p> <p>3. Appeal and Error— offer of proof — included in record</p> <p>The Industrial Commission did not abuse its discretion in a workers’ compensation action by including plaintiff’s offer of proof in the record. Although defendant contended on appeal that the report had never been admitted, the Commissioner who settled the record stated that plaintiff’s offer of proof was tendered and accepted by the Deputy Commissioner.</p>

<bold>1. Juveniles — capacity to proceed — evaluations</bold> <block_quote> The trial court did not err by finding a juvenile capable of proceeding where 2 doctors from Dorothea Dix found the juvenile capable, a private psychologist found him incapable, and the trial court ordered an evaluation by the chief of forensic psychiatry at Dorothea Dix, who found the juvenile capable of proceeding. There was no merit to the juvenile's contention that the chief psychiatrist's evaluation was inherently unreliable or biased because it was based in part on information gathered by one of his employees.</block_quote> <bold>2. Juveniles — commitment — not an abuse of discretion</bold> <block_quote> The trial court did not abuse its discretion by committing a juvenile to the Department of Juvenile Justice and Delinquency<page_number>Page 734</page_number> Prevention where the court had before it assessments of needs and risks and the court found that it was in the juvenile's best interest to be committed given the severity of the case, the lack of progress, and the alternatives available in the community.</block_quote>