Volume 165 — North Carolina Court of Appeals Reports

<bold>1. Pleadings — judgment on — outside evidence</bold> <block_quote> There was no error where the trial court heard but did not consider matters outside the pleadings before entering a judgment on the pleadings. Plaintiff initiated the introduction of evidence and may not now complain of the action she began. Moreover, receiving but not relying on evidence does not convert a motion for a judgment on the pleadings into a motion for summary judgment.</block_quote> <bold>2. Open Meetings — judgment on pleadings — no issue of fact</bold> <block_quote> The trial court did not err by granting defendant's motion for judgment on the pleadings on an Open Meetings claim arising from an employment decision. Taking plaintiff's allegations as true, no genuine issues of fact exist. Defendant properly entered a closed session and plaintiff's request that she be appointed to the position was beyond the court's authority under the Open Meetings Law.</block_quote> <bold>3. Pleadings — sanctions — improper purpose of action</bold> <block_quote> The trial court's order imposing Rule 11 sanctions following a dismissal on the pleadings was affirmed. The evidence supports findings that plaintiff was present when the alleged violations of the Open Meetings Law occurred, that she had a duty to inform the Board if it was acting improperly, and that plaintiff intentionally remained silent. The evidence further supports the conclusion<page_number>Page 101</page_number> sion that plaintiff filed this action not to vindicate her rights, but in retaliation for defendant's actions and to gain leverage in settlement negotiations.</block_quote> <bold>4. Pleadings — sanctions — attorney fees — government attorney</bold> <block_quote> The trial court did not abuse its discretion by awarding attorney fees and costs to defendant as a Rule 11 sanction following a judgment on the pleadings for defendant in an Open Meetings case. Plaintiff produced no case law or evidence to support the contention that the court should have based the fee on actual costs for the county attorney rather than the reasonable rate for a private attorney.</block_quote> <bold>5. Pleadings — sanctions — attorney fees — reduction of award</bold> <block_quote> The trial court did not abuse its discretion by reducing an award of attorney fees that had been imposed as a sanction.</block_quote>

<bold>1. Kidnapping — separate offenses — sufficiency of evidence</bold> <block_quote> The trial court correctly denied defendants' motion to dismiss first-degree kidnapping charges where defendants abducted the victim in his car, drove him to a deserted mall where they stole money, traveler's checks, bank cards, and credit cards, and then drove around with a gun at defendant's head trying to obtain more money from ATM machines. Although defendants argued that the kidnapping was an inherent part of the armed robbery, the robbery for which defendant was indicted was complete with the theft of the money, checks, and cards, and the victim's restraint was more than the technial asportation necessary to complete the armed robbery.</block_quote><page_number>Page 135</page_number> <bold>2. Kidnapping — release in unsafe place — sufficiency of</bold> <bold>evidence</bold> <block_quote> There was sufficient evidence that a first-degree kidnapping defendant did not release his victim in a safe place where the victim was released on the side of an interstate at about 1:30 a.m., the victim was not given money for a telephone call, the area was wooded, and the victim had to walk for about two miles to find an exit ramp and an open business to obtain help.</block_quote> <bold>3. Confessions and Incriminating Statements — nontestifying</bold> <bold>defendant — letters incriminating codefendant — not plain</bold> <bold>error</bold> <block_quote> Even if the trial court committed <italic>Bruton</italic> error by allowing unredacted letters written by the nontestifying defendants incriminating each other to be read into evidence in a prosecution for armed robbery and kidnapping, the admission of this evidence was not plain error in light of the overwhelming evidence of defendants' guilt of the charged crimes.</block_quote> <bold>4. Appeal and Error — plain error — jury poll — not applicable</bold> <block_quote> A defendant did not object to a jury poll and did not preserve the issue for review. Plain error analysis applies only to jury instructions and evidentiary matters.</block_quote>

<bold>1. Appeal and Error — appealability — denial of summary</bold> <bold>judgment — sovereign immunity — substantial right</bold> <block_quote> Although appeal from denial of summary judgment is an appeal from an interlocutory order and thus ordinarily not immediately appealable, the issue of sovereign immunity affects a substantial right sufficient to warrant immediate appellate review.</block_quote> <bold>2. Immunity — sovereign — maintenance of courthouse — public</bold> <bold>officials liability exclusion</bold> <block_quote> A de novo review revealed that the trial court erred by denying defendants' and intervenors' motion for summary judgment arising out of the alleged improper maintenance of the pertinent courthouse and by failing to find that defendants were insulated from liability under the doctrine of sovereign immunity, because the public officials liability exclusion in the pertinent policy excludes the alleged negligence in this case from the general waiver of sovereign immunity in the general liability coverage.</block_quote> <bold>3. Public Officers and Employees — health director — county</bold> <bold>manager — writ of mandamus — discretionary duties</bold> <block_quote> Summary judgment should have been granted in favor of the Health Director and County Manager denying plaintiffs' writ of mandamus, because: (1) the health director and county manager are public officials whose primary duties under their statutory posts are discretionary and generally beyond the reach of the extraordinary writ of mandamus; and (2) the duties sought by the writ of mandamus in this case were discretionary.</block_quote>

<bold>1. Firearms and Other Weapons — possession of firearm by felon</bold> <bold>— penalty for underlying offense — substantial right not</bold> <bold>affected</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss an indictment for possession of a firearm by a felon where the indictment did not state the penalty for the underlying conviction. The provision of N.C.G.S. § <cross_reference>14-415.1</cross_reference>(c) that requires the indictment to state the penalty is not material and does not affect a substantial right. Defendant is no less apprised of the conduct which is the subject of the accusation than he would have been if the penalty had been included.</block_quote> <bold>2. Evidence — possession of firearm by felon — probation for</bold> <bold>underlying offense revoked — relevant</bold> <block_quote> Evidence that defendant's probation had been revoked was admissible in a prosecution for possession of a firearm by a felon. The evidence was relevant to proving defendant's status as a felon and the court's limiting instructions were sufficient to cure any prejudice.</block_quote> <bold>3. Firearms and Other Weapons — possession by felon — no</bold> <bold>instruction on justification</bold> <block_quote> The trial court did not err by refusing to give an instruction on justification in a prosecution for possession of a firearm by a felon. Defendant was involved in an ongoing dispute, but there was no evidence that he was under an imminent threat of death or injury when he decided to carry a gun.</block_quote> Judge WYNN concurs in the result.

<bold>1. Appeal and Error — appealability — interlocutory order —</bold> <bold>N.C.G.S. § <cross_reference>15A-1432</cross_reference>(d) exception</bold> <block_quote> Although an appeal from the superior court's reversal and remand of a district court order dismissing defendant's probation violation is an appeal from an interlocutory order and ordinarily not appealable, N.C.G.S. § <cross_reference>15A-1432</cross_reference>(d) provides an exception because: (1) the superior court determined that the district court's order dismissing the probation violation was erroneous, and remanded the matter back to the district court for further proceedings; (2) defendant's attorney certified to the superior court judge that the appeal was not taken for the purpose of delay, and the superior court judge found that the cause was appropriately justiciable in the appellate division as an interlocutory matter; and (3) a probation revocation hearing is sufficiently analogous to the dismissal of criminal charges for the purposes of this statute.</block_quote> <bold>2. Probation and Parole — probation violation report —</bold> <bold>timeliness</bold> <block_quote> The superior court erred in a probation violation case by concluding that the State's violation report was timely, because: (1) the State's probation revocation complaint was not filed prior to the expiration of defendant's probation term as required by N.C.G.S. § <cross_reference>15A-1344</cross_reference>(f)(1); and (2) defendant's probation was not stayed while defendant appealed his conviction from district court to superior court.</block_quote>

<bold>Rape — first-degree — assault on a female as lesser offense —</bold> <bold>instruction denied — short form indictment not applicable</bold> <block_quote> The trial court correctly denied an instruction on assault on a female to a first-degree rape defendant indicted under N.C.G.S. § <cross_reference>14-27.2</cross_reference>. Where the indictment specifically alleges all of the elements of first-degree rape under N.C.G.S. § <cross_reference>14-27.2</cross_reference>(a)(2)(a) (b) and does not contain the specific averments or allegations of N.C.G.S. § <cross_reference>15-144.1</cross_reference> (the short form indictment, which can include assault on a female as a lesser offense), the court has jurisdiction only to issue instructions on first-degree rape and any lesser included offenses that meet the definitional test. Assault on a female does not meet that test because it contains elements not present in the greater offense of rape.</block_quote>

<bold>1. Constitutional Law — double jeopardy — failure to register</bold> <bold>as sex offender — prior record — inclusion of underlying</bold> <bold>rape</bold> <block_quote> Defendant was not subjected to double jeopardy by the inclusion of the underlying second-degree rape conviction in his prior record level during his sentencing for failing to register as a sex offender.</block_quote> <bold>2. Sexual Offenses — failing to register as a sex offender —</bold> <bold>indictment — elements of offense</bold> <block_quote> An indictment against a homeless defendant for failing to register as a sex offender was sufficient where it clearly stated<page_number>Page 333</page_number> the elements of the offense. The argument that the indictment failed by not identifying the specific dates defendant moved and his new addresses is without merit.</block_quote>

<bold>1. Sexual Offenses — statutory — evidence sufficient</bold> <block_quote> On a motion to dismiss, the court is concerned only with the sufficiency of the evidence and not its weight. Defendant's motion to dismiss a statutory sex offense charge was<page_number>Page 356</page_number> properly denied where most of the evidence was that the alleged sexual acts were merely poses for photographs, but there was some testimony that defendant, age 51, performed cunnilingus on the 13-year-old victim.</block_quote> <bold>2. Rape; Sexual Offenses — statutory — specificity of evidence</bold> <bold>— sufficient</bold> <block_quote> The testimony of a 13-year-old statutory rape and sexual offense victim that certain sexual acts occurred with defendant 25-40 times at intervals during an 8 month period was sufficient to deny defendant's motion to dismiss, although the victim could not remember the details because it was ". . . basically the same thing over and over again."</block_quote> <bold>3. Sexual Offenses — statutory — sufficiency of evidence —</bold> <bold>activity with another with defendant watching</bold> <block_quote> A charge of statutory sex offense should have been dismissed where there was evidence that defendant forced the victim to perform cunnilingus on her mother, but there was no activity between the victim and defendant. The State did not proceed on an aiding and abetting theory.</block_quote> <bold>4. Sexual Offenses — statutory — evidence of rape — no other</bold> <bold>activity — evidence not sufficient</bold> <block_quote> The trial court should have dismissed a charge of statutory sex offense where there was sufficient evidence of statutory rape, but no evidence of a separate sexual offense.</block_quote> <bold>5. Criminal Law — jury deliberations — written statements in</bold> <bold>jury room — not prejudicial</bold> <block_quote> Allowing the jury to take written statements from a statutory rape and sex offense victim and her mother into the jury room during deliberations was not prejudicial where the evidence was identical to that presented on direct examination.</block_quote> <bold>6. Sentencing — aggravating factors — position of trust or</bold> <bold>confidence — dating victim's mother</bold> <block_quote> There was no error in finding in aggravation that a statutory rape and sex offense defendant took advantage of a position of trust or confidence where defendant was dating the victim's mother and they all lived in defendant's house for a time before the abuse began.</block_quote><page_number>Page 357</page_number> <bold>7. Sentencing — aggravating factors — joining with more than</bold> <bold>one other person — evidence not sufficient</bold> <block_quote> The trial court should not have found in aggravation that a statutory rape and sex offense defendant joined with more than one other person in committing the offenses. The evidence at trial was that defendant and the victim's mother were the only ones abusing her.</block_quote> <bold>8. Rape; Sexual Offenses — short form indictment — statutory</bold> <bold>rape and statutory sexual offense</bold> <block_quote> There was no error in using the short form indictment for statutory rape and statutory sexual offense.</block_quote>

<bold>1. Civil Procedure — summary judgment — supplemental affidavit</bold> <block_quote> The trial court did not abuse its discretion by allowing the submission of a supplemental affidavit during a summary judgment hearing where the supplemental affidavit was in response to allegations made for the first time in an affidavit received the afternoon before the hearing and the supplement contained only six additional sentences, which specifically rebutted the affidavit received the day before the hearing.</block_quote> <bold>2. Insurance — existence of exclusion — question of fact</bold> <block_quote> The trial court erred by granting summary judgment for plaintiff insurer in a declaratory judgment action to determine insurance coverage where plaintiff had submitted affidavits averring that a policy endorsement excluded coverage and defendants submitted an affidavit in opposition.</block_quote><page_number>Page 440</page_number>

<bold>1. Mental Illness — involuntary commitment — hearsay</bold> <bold>information</bold> <block_quote> The trial court did not err by failing to dismiss the petition for involuntary commitment even though information contained in the affidavit and petition for involuntary commitment presented to the magistrate contained hearsay, because: (1) the Court of Appeals has previously held that a magistrate may consider hearsay evidence as a basis for issuing an involuntary commitment custody order despite the pertinent statute's silence on the issue; (2) though any deprivation of a person's liberty through an involuntary commitment custody order is an intrusion on that person's liberties, our laws provide for a rapid and thorough review of this action; (3) the two psychological examinations and the hearing within 10 days of the initial detainment provides respondent with adequate assurance that he is not being improperly<page_number>Page 463</page_number> detained; and (4) a hearing before a magistrate under N.C.G.S. § <cross_reference>122C-261</cross_reference> upon a petition for the involuntary commitment of a person is a miscellaneous proceeding under Rule 1101, and the rules of evidence do not apply.</block_quote> <bold>2. Mental Illness — involuntary commitment — dangerous to self</bold> <block_quote> The trial court did not err in a mental illness hearing by finding as a matter of law that respondent was dangerous to himself and did not fail to specifically state findings of fact in support of this conclusion, because the failure of a person to properly care for his medical needs, diet, grooming, and general affairs meets the test of dangerousness to self.</block_quote>

<bold>1. Administrative Law — standard of review — agency affirmation</bold> <bold>of denial of Medicaid</bold> <block_quote> The correct standard of review for appeal of an agency affirmation of the denial of Medicaid reimbursement for an illegal alien's leukemia treatment was that used in the appeal of civil cases in which the superior court sits without a jury. Findings supported by evidence are conclusive, and conclusions of law are reviewable de novo.</block_quote> <bold>2. Public Assistance — denial of Medicaid — illegal alien —</bold> <bold>leukemia treatments — findings insufficient</bold> <block_quote> An appeal of the denial of Medicaid benefits for treatment of an illegal alien's leukemia was remanded where the findings were not adequate to support the conclusion that the care and services for which respondent denied reimbursement were not for an emergency (illegal aliens receive coverage for emergencies only).</block_quote><page_number>Page 503</page_number>

<bold>1. Workers' Compensation — death benefits — statute of</bold> <bold>limitations — determination of disability</bold> <block_quote> A workers' compensation claim for death benefits was not time barred under N.C.G.S. § <cross_reference>97-38</cross_reference> where the decedent was attacked in 1994 while working as a courier, he was left in a permanent<page_number>Page 515</page_number> vegetative state, a Form 21 agreement for disability compensation was approved in 1994, and he died in 2001, more than six years after his injury and more than two years from the Form 21 filing. While a Form 21 is a method for establishing disability, it does not always constitute a final award; in this case, the decedent's condition was uncertain and the Form 21 was a preliminary agreement for disability payments rather than a final determination of disability. That occurred in a separate claim on 19 April 2001, and death occurred within two years of that date.</block_quote> <bold>2. Workers' Compensation — attorney fees — determination of</bold> <bold>issue required</bold> <block_quote> The Industrial Commission errs by failing to rule on attorney fees when the issue has been raised. In this case, the motion was for attorney fees under N.C.G.S. § <cross_reference>97-88</cross_reference>; while the Commission ruled on attorney fees under N.C.G.S. § <cross_reference>97-88.1</cross_reference>, the statutes provide separate grounds and the case was remanded for a determination of the issue under N.C.G.S. § <cross_reference>97-88</cross_reference>.</block_quote>

<bold>1. Public Officers and Employees — university coach —</bold> <bold>jurisdiction to hear petition to reinstate duties</bold> <block_quote> The superior court did not err by concluding that the Office of Administrative Hearings (OAH) and State Personnel Commission (SPC) had jurisdiction to hear the petition seeking to reinstate petitioner's duties as Assistant Football Coach and Head Women's Softball Coach at Winston-Salem State University, because: (1) an employee petition filed with the OAH that alleges the employee has been dismissed, demoted, or suspended without just cause is sufficient to invoke the jurisdiction of the OAH and SPC; and (2) in this case petitioner alleged he had been discharged without just cause or reassigned without just cause when he was relieved of his athletic duties and privileges by respondent's Athletics Director, thus alleging a discharge or demotion.</block_quote> <bold>2. Public Officers and Employees — university coach — demotion</bold> <bold>or discharge</bold> <block_quote> The superior court erred by concluding petitioner had been demoted or discharged from his coaching duties in violation of N.C.G.S. § <cross_reference>126-34.1</cross_reference>(a)(1), because: (1) at most, the evidence shows a reassignment as petitioner claims to have lost his more significant coaching responsibilities; (2) a demotion is defined as a lowering in rank, position, or pay, and in the instant case petitioner's paygrade remained the same; and (3) as the promised raise in salary had not yet come into effect at the time of his reassignment, petitioner has also failed to show a demotion through a decrease in pay.</block_quote>

<bold>1. Evidence — prior bad acts — sale and use of cocaine —</bold> <bold>intent, knowledge, motive</bold> <block_quote> The admission of testimony mentioning defendant's prior bad acts, including the sale and use of cocaine, was admissible in a prosecution for conspiracy to traffic in cocaine and for trafficking in cocaine by possession. Defendant testified that he never used cocaine and his defense was that he had accompanied a friend without knowledge that the friend was involved in a drug deal; under these circumstances, the testimony was proper to show defendant's intent, knowledge, and motive.</block_quote> <bold>2. Evidence — character for truthfulness — not pertinent to</bold> <bold>cocaine trafficking</bold> <block_quote> Evidence of a defendant's character for truthfulness was correctly excluded as not pertinent to cocaine trafficking.</block_quote> <bold>3. Evidence — law abiding person — pertinent — exclusion not</bold> <bold>prejudicial</bold> <block_quote> Evidence of a cocaine trafficking defendant's character as a law-abiding person tended to establish that defendant did not commit the crime and was incorrectly excluded, but there was no prejudice because the State presented overwhelming evidence of defendant's guilt.</block_quote> <bold>4. Evidence — identity of confidential informant — factors</bold> <bold>favoring nondisclosure</bold> <block_quote> The trial court's refusal to disclose the identity of a confidential informant to a cocaine trafficking defendant was not error<page_number>Page 599</page_number> where the factors favoring nondisclosure outweighed the factors favoring disclosure.</block_quote> <bold>5. Drugs — cocaine trafficking — weight as element —</bold> <bold>instruction required</bold> <block_quote> A conviction for trafficking in cocaine by possession was remanded for resentencing for simple possession where the court did not tell the jury that the weight of the cocaine was an element that had to be proven beyond a reasonable doubt.</block_quote>

<bold>1. Constitutional Law — Double Jeopardy — public nuisance</bold> <bold>action following prostitution conviction</bold> <block_quote> The Double Jeopardy Clause was not violated by an action by a district attorney seeking the illegal profits from a public nuisance owned by defendants, who had been convicted of maintaining a place for prostitution. The North Carolina statutes on abatement of nuisances, examined under <italic>Hudson v.</italic> <italic>United States</italic>, <cross_reference>522 U.S. 93</cross_reference> (1997), do not reveal clear proof of legislative intent to impose a criminal penalty.</block_quote> <bold>2. Nuisance; Constitutional Law — prostitution — summary</bold> <bold>judgment — right to jury trial</bold> <block_quote> Summary judgment for plaintiff was appropriate on an action for injunctive relief, abatement, and forfeiture following defendants' conviction for maintaining a place for prostitution. The State's evidence was sufficient to prove that defendants engaged in a nuisance and that proceeds from the activity should be forfeited, while defendants provided no evidence to refute plaintiff's account of their activity. This does not deprive defendants of their right to a jury trial, which accrues only when there is a genuine issue of fact.</block_quote><page_number>Page 610</page_number> <bold>3. Nuisance — prostitution — damages — summary judgment</bold> <block_quote> Summary judgment should not have been awarded to plaintiff on damages in a nuisance action by a district attorney following defendants' conviction for maintaining a place for prostitution. While the gross income from Rose Spa could be calculated from tax records, the amount derived from unlawful activity is disputed. N.C.G.S. § <cross_reference>19-6</cross_reference>.</block_quote>

<bold>1. Evidence — testimony — child protective services worker —</bold> <bold>sexual assault — corroboration</bold> <block_quote> The trial court did not commit plain error in a first-degree sexual offense case by admitting testimony of a child protective services worker regarding statements made to her by the child victim, because: (1) while the witness's testimony went beyond the single act of oral sex to which the child victim testified, the witness's testimony did not depart from the child's testimony that oral sex occurred between defendant and the victim thus corroborating the testimony although there was some variation; and (2) defendant is unable to show error such that the jury probably would have reached a different result absent the alleged error.</block_quote> <bold>2. Evidence — hearsay — opinion testimony — plain error</bold> <bold>analysis</bold> <block_quote> The trial court did not commit plain error in a first-degree sexual offense case by admitting hearsay and opinion testimony of a witness who had not been qualified as an expert, because: (1) when admitted without objection, otherwise inadmissible hearsay may be considered with all the other evidence and given such evidentiary value as it may possess; (2) the pertinent testimony was too vague to amount to opinion testimony; and (3) neither of the witness's pertinent statements would have prejudiced the jury and tilted the scales in favor of conviction.</block_quote> <bold>3. Sexual Offenses — first-degree sexual offense — failure to</bold> <bold>instruct on indecent liberties with a minor</bold> <block_quote> The trial court did not err in a first-degree sexual offense case by failing to instruct the jury as to indecent liberties with a minor, because: (1) indecent liberties with a minor is not a lesser-included<page_number>Page 649</page_number> offense of a first-degree sex offense; and (2) the State's evidence supported each element of first-degree sex offense.</block_quote> <bold>4. Evidence — prior crimes or bad acts — sexual act with minor</bold> <bold>— motive — intent — common plan</bold> <block_quote> The trial court did not abuse its discretion in a first-degree sexual offense case by admitting testimony concerning a prior sexual act committed by defendant with another minor, because: (1) the lapse of time of eleven years between the prior acts and the acts in this case does not sufficiently diminish the similarities between the acts; (2) remoteness is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident, and the State introduced evidence of defendant performing oral sex on a nine-year-old boy to show defendant's intent, motive, and common plan since both acts involved oral sex with young children eight and nine years old; and (4) the trial court applied the appropriate balancing test of N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 403, and the probative value outweighed any prejudicial effect.</block_quote> <bold>5. Constitutional Law — effective assistance of counsel —</bold> <bold>failure to object — failure to request instruction</bold> <block_quote> Defendant did not receive ineffective assistance of counsel in a first-degree sex offense case based on his attorney's failure to object to certain testimony and failure to request a jury instruction on a lesser-included offense, because: (1) defendant could not have been prejudiced by failure to object to the pertinent testimony when the Court of Appeals already determined based on plain error review that the trial court did not err by admitting the challenged testimony; and (2) indecent liberties with a minor is not a lesser-included offense of a first-degree sexual offense, and contrary to defendant's contentions, defense counsel did request this jury instruction.</block_quote>

<bold>1. Medical Malpractice — expert testimony — standard of care —</bold> <bold>opinion</bold> <block_quote> The trial court abused its discretion in a medical malpractice case by admitting the testimony of one of decedent's treating doctors that amounted to an opinion as to defendant doctor's compliance with the relevant standard of care, and the case is remanded for a new trial, because: (1) defendants failed to establish that the testifying doctor was familiar with the standard of care in Hendersonville, North Carolina or similar communities and failed to show the doctor had any knowledge of the resources available in Hendersonville sufficient to be able to testify about the standard of care in similar communities; (2) the doctor's only foundation was oral representations by counsel unsupported by evidence and made in the middle of the trial; and (3) there was no indication in the record that the doctor would have personal knowledge of the standard of care in any similar community.</block_quote> <bold>2. Discovery — medical malpractice — failure to comply with</bold> <bold>discovery order — sanctions</bold> <block_quote> The trial court erred in a medical malpractice case by barring the expert testimony of a doctor who examined decedent's ear following surgery by defendant doctor based on plaintiff's failure to designate the doctor earlier as an expert witness, and the case is remanded for a new trial with instructions to weigh whether any unfair prejudice outweighs the probative value of the pertinent testimony, even though plaintiff's designation limiting treating physician testimony to diagnosis, care, and treatment of decedent was insufficient to advise defendants that plaintiff might call the pertinent doctor to give standard of care testimony, because: (1) the trial court could not have excluded the testimony under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 26(f1) or Rule 37(b)(2) as a sanction since plaintiff's voluntary dismissal of the case nullified a 1998 consent discovery order meaning there was no discovery order in effect to violate; and (2) plaintiff did not fail to comply with any obligation under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 26(e) when defendants<page_number>Page 709</page_number> failed to serve a general expert interrogatory that would have required identification of the pertinent doctor in a timely manner.</block_quote>

<bold>Taxation — challenge to income tax assessment — failure to pay</bold> <bold>tax or file bond — no subject matter jurisdiction</bold> <block_quote> The trial court properly concluded that it lacked subject matter jurisdiction over a challenge to an income tax assessment where plaintiff did not first pay the tax or file a bond, as required by statute. N.C.G.S. § 105-241.3.</block_quote><page_number>Page 835</page_number>