Volume 166 — North Carolina Court of Appeals Reports

<bold>1. Evidence — cause of child's injuries — testimony by</bold> <bold>physician's assistant</bold> <block_quote> The testimony of a physician's assistant who treated a child abuse victim about the cause of the child's injuries was properly admitted based upon the witness's 27 years of experience. Moreover, there is no record that defendant requested voir dire and no authority mandating voir dire without such a request.</block_quote> <bold>2. Child Abuse and Neglect — felonious child abuse — burning —</bold> <bold>evidence sufficient</bold> <block_quote> A motion to dismiss a charge of felonious child abuse inflicting serious bodily injury for insufficient evidence was correctly denied where defendant is the child's father and was supervising<page_number>Page 140</page_number> him on the day the injuries were inflicted; they were at home alone; the child was 10 months old; a physician's assistant testified that the child's burns were caused by someone holding a hot object on the child; a burn on the child's hand was severe enough for a skin graft and a week in the hospital; he had trouble crawling due to burns on his hands and feet; and he remained unable to use a finger on his burned hand one year later.</block_quote> <bold>3. Constitutional Law — speedy trial — delay not purposeful or</bold> <bold>oppressive</bold> <block_quote> The denial of a speedy trial motion was not error where defendant did not present any evidence that the delay of thirteen months between arrest and trial was purposeful or oppressive or could have been avoided by reasonable effort by the prosecutor.</block_quote> <bold>4. Evidence — child abuse — baby bottle</bold> <block_quote> A baby bottle was correctly admitted in a prosecution for felonious child abuse where there was testimony that the child's burns were round and inconsistent with the curling iron which defendant contended was the accidental cause of the injuries. Defendant did not show that the probative value was substantially outweighed by the danger of unfair prejudice.</block_quote> <bold>5. Discovery — child abuse — sealed DSS file — no exculpatory</bold> <bold>evidence</bold> <block_quote> The trial court did not err in a prosecution for felonious child abuse by ruling that a DSS file did not contain exculpatory evidence. The Court of Appeals reviewed the sealed records and found nothing favorable to the accused or material to the charges at issue in this case.</block_quote> <bold>6. Sentencing — aggravating factors — found by judge</bold> <block_quote> A motion for appropriate relief was granted by the Court of Appeals and the case was remanded for resentencing where the trial court unilaterally found the existence of an aggravating factor and thereupon sentenced defendant in the aggravated range. N.C.G.S. § <cross_reference>15A-1340.16</cross_reference>.</block_quote>

<bold>1. Appeal and Error — appealability — interlocutory order —</bold> <bold>improper Rule 54 certification — writ of certiorari</bold> <block_quote> Although the trial court erred by granting a Rule 54 certification of a 20 November 2002 order when it was not a final judgment as to any of the claims or counterclaims presented by the parties, the Court of Appeals granted defendant's subsequent petition for writ of certiorari to review the 20 November 2002 order.</block_quote> <bold>2. Open Meetings; Public Records — government entity filing for</bold> <bold>declaratory judgment — openness in daily workings of public</bold> <bold>bodies</bold> <block_quote> Plaintiff city did not have a right under the Public Records Act or the Open Meetings Law to initiate a declaratory judgment action to determine whether the city was in compliance with the Open Meetings and Public Records laws, because allowing a governmental agency to bring a declaratory judgment action against someone who has not initiated litigation will have a chilling effect on members of the public by requiring them to defend civil actions they otherwise might not have commenced, thus frustrating the legislature's purpose of furthering the fundamental right of every person to have prompt access to information in the possession of public agencies.</block_quote>

<bold>Termination of Parental Rights — addicted parent — guardian ad</bold> <bold>litem for parent — required</bold> <block_quote> A termination of parental rights order was reversed and remanded for the appointment of a guardian ad litem for the parent and a rehearing where there were allegations and findings about respondent's drug use but a guardian ad litem was not appointed for her. The trial court must appoint a guardian ad litem when a motion to terminate alleges dependency due to incapability of the parent to provide proper care as spelled out in N.C.G.S. § <cross_reference>7B-1111</cross_reference>(6) and that incapability is the result of one of the conditions enumerated in N.C.G.S. § <cross_reference>7B-1101</cross_reference>(1).</block_quote>

<bold>1. Employer and Employee — negligent hiring — reasonable</bold> <bold>investigation</bold> <block_quote> The trial court erred by granting defendant financial planning company's motion to dismiss plaintiff customer's claim for negligent hiring of plaintiff's son, an insurance agent who misappropriated funds from plaintiff's various insurance and annuity products, because the allegations were sufficient to assert that defendant company could have discovered the unfitness of plaintiff's son had it conducted a reasonable investigation prior to hiring him.</block_quote> <bold>2. Fiduciary Relationship — breach of fiduciary duty —</bold> <bold>insurance agent</bold> <block_quote> The trial court erred by granting defendant financial planning company's motion to dismiss plaintiff customer's claim for breach of fiduciary duty regarding plaintiff's son who misappropriated funds from plaintiff's various insurance and annuity products while employed as an insurance agent of defendant company, because: (1) the complaint sufficiently alleged that a relationship of confidence and trust existed between plaintiff and plaintiff's son, individually and in his capacity as an employee and agent of defendant company; (2) plaintiff was not required to allege wrongful benefit as an element of this claim since it is an element of constructive fraud; and (3) plaintiff sufficiently alleged that he relied upon false representations of the status of his investment accounts provided by his son in his capacity as an employee and agent of defendant company and that plaintiff's son in carrying out his duties as an agent and employee of defendant company converted plaintiff's funds to his own use.</block_quote> <bold>3. Fraud — constructive — motion to dismiss — sufficiency of</bold> <bold>evidence</bold> <block_quote> The trial court did not err by granting defendant financial planning company's motion to dismiss plaintiff customer's claim for constructive fraud, because: (1) an allegation of the payment<page_number>Page 284</page_number> of commissions for transactions actually performed is not sufficient to survive a motion to dismiss a claim for constructive fraud; and (2) the allegation failed to show that defendant sought to benefit itself by taking unfair advantage of plaintiff.</block_quote> <bold>4. Employer and Employee — vicarious liability — scope of</bold> <bold>employment</bold> <block_quote> The trial court erred by granting summary judgment on claims of fraud, conversion, and unfair and deceptive trade practices to the extent that the judgment was based on defendant financial planning company's lack of vicarious liability because: (1) the torts at issue occurred through defendant employee's investment advice, his completion of customer forms, his processing of loans, and his administration of customer accounts; (2) defendant company selected and employed defendant employee specifically to perform the functions that he exploited to accomplish his fraud and theft; and (3) plaintiff presented sufficient evidence to permit a jury to find that defendant employee was acting within the scope of his employment.</block_quote> <bold>5. Negligence — breach of duty — duty to exercise reasonable</bold> <bold>skill, care, and diligence</bold> <block_quote> The trial court erred by granting summary judgment on plaintiff customer's negligence claim based on defendant financial planning company's breach of duty to discover defendant insurance agent employee's misappropriation of funds from plaintiff's various insurance and annuity products, because: (1) defendant company did not contend that defendant employee was acting outside the scope of his employment when he agreed to obtain the pertinent insurance policy and annuities; (2) plaintiff offered evidence that defendant company reaped commissions from its relationship with plaintiff, additional evidence showing that defendant company agreed to procure insurance for plaintiff which showed defendant owed plaintiff a duty to exercise reasonable skill, care, and diligence in doing so; and (3) plaintiff offered sufficient expert testimony regarding the standard of care in the insurance industry to show there was a genuine issue whether defendant company breached its duty to plaintiff.</block_quote> <bold>6. Unfair Trade Practices — summary judgment — sufficiency of</bold> <bold>evidence — in or affecting commerce</bold> <block_quote> The trial court erred by granting summary judgment in favor of defendant financial planning company on an unfair and deceptive<page_number>Page 285</page_number> trade practices claim arising out of defendant insurance agent employee's misappropriation of funds from plaintiff's various insurance and annuity products, because: (1) the pertinent life insurance policy and fixed-rate annuities appear to be insurance products and not securities or other capital-raising financial instruments; and (2) conduct relating to insurance products is covered by Chapter 75.</block_quote> <bold>7. Estoppel — equitable — defense of expiration of statute of</bold> <bold>limitations</bold> <block_quote> Plaintiff customer was entitled to proceed to trial on his equitable estoppel claim regarding defendant financial planning company's motion for summary judgment on the grounds that plaintiff's conversion, negligence, and fraud claims were barred by the applicable statute of limitations, because: (1) equitable estoppel may be asserted against defendant company if defendant insurance agent employee acted within the scope of his employment, and plaintiff has submitted sufficient evidence to permit a jury to impute defendant employee's actions to defendant company; and (2) a jury could draw the inference that defendant company lulled plaintiff into a false sense of security by failing, after learning of defendant employee's dishonesty, to notify plaintiff of defendant employee's acts, to reassign plaintiff to another account executive or to forward statements received for plaintiff's account.</block_quote> <bold>8. Statutes of Limitation and Repose — fraud — reasonable</bold> <bold>diligence — fiduciary — discovery rule</bold> <block_quote> The trial court erred by concluding that plaintiff customer's fraud claim against defendant financial planning company was barred by the statute of limitations based on the fact that plaintiff did not file suit until August 2001 which was more than three years after all but two of the transactions occurred, because: (1) the evidence presented by plaintiff would permit, although not require, a jury to conclude that as a result of defendant employee's acts of concealment, plaintiff did not fail to exercise reasonable diligence in discovering the fraud; and (2) a lack of reasonable diligence may be excused when the fraud was committed by a fiduciary, plaintiff's evidence supports a finding of a fiduciary relationship with defendant employee and with defendant company, and the record contains no undisputed evidence of an event that would necessarily have placed plaintiff on notice that defendants were failing to disclose all essential facts.</block_quote><page_number>Page 286</page_number> <bold>9. Statutes of Limitation and Repose — negligence — pecuniary</bold> <bold>loss</bold> <block_quote> The trial court did not err by concluding that plaintiff customer's negligence claim against defendant financial planning company was barred by the statute of limitations based on the fact that plaintiff did not file suit until August 2001 which was more than three years after all but two of the pertinent transactions occurred, subject only to its claim of equitable estoppel, because: (1) contrary to plaintiff's contention, N.C.G.S. § <cross_reference>1-52</cross_reference>(16) which includes a discovery rule applies only to claims for personal injury or physical damage to claimant's property rather than a claim for purely pecuniary loss; and (2) when the General Assembly has intended to include pecuniary loss within the scope of a discovery rule, it has done so expressly. However, the two loan transactions occurring on 15 December 1998 and 22 February 1999 are not time-barred under N.C.G.S. § <cross_reference>1-52</cross_reference>(5).</block_quote> <bold>10. Statutes of Limitation and Repose — conversion — withdrawal</bold> <bold>of funds without permission</bold> <block_quote> The trial court did not err by concluding that plaintiff customer's conversion claim against defendant financial planning company was barred by the statute of limitations based on the fact that plaintiff did not file suit until August 2001 which was more than three years after all but two of the pertinent transactions occurred, because: (1) contrary to plaintiff's contention, N.C.G.S. § <cross_reference>1-52</cross_reference>(16) which includes a discovery rule applies only to claims for personal injury or physical damage to claimant's property, and plaintiff's claim that defendant employee converted his funds does not amount to a claim for physical damage to property; and (2) although plaintiff contends that his conversion claim did not accrue and the statute of limitations did not begin to run until he demanded the converted property and either defendant company or defendant employee refused to return it, defendant employee did not rightfully come into personal possession of plaintiff's funds, the wrongful taking and defendant employee's possession of the funds were simultaneous, and the conversion occurred when defendant employee withdrew the funds from the annuities without plaintiff's permission.</block_quote>

<bold>1. Evidence — hearsay — not offered for truth of matter</bold> <bold>asserted — corroboration</bold> <block_quote> The trial court did not err in a possession with intent to sell and deliver marijuana case by allowing three officers to testify regarding statements made to them by another officer describing the activities of defendant and others witnessed by that officer during a surveillance operation, because: (1) the challenged testimony was offered not to prove the truth of the matters asserted therein, but rather to explain the officers' conduct after they arrived at the scene; (2) the trial court specifically instructed the jury that each officer's testimony was not offered for the truth of the matter asserted; and (3) while an officer's trial testimony did not specifically denominate any of the behavior as illegal drug activity, it cannot be said that the testimony of the other three officers was not corroborative of the officer's testimony.</block_quote> <bold>2. Sentencing — improper punishment — exercising right to plead</bold> <bold>not guilty</bold> <block_quote> The trial court erred by considering defendant's decision to plead not guilty to possession with intent to sell and deliver marijuana in determining his sentence, resulting in imposition of a harsher sentence based on defendant exercising his right to a jury trial on that charge, and the case is remanded for a new sentencing hearing because the totality of the trial court's comments evidenced an improper intent by the trial court to punish defendant for exercising his right to plead not guilty.</block_quote>

<bold>1. Workers' Compensation — occupational disease — carpal tunnel</bold> <bold>syndrome</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by finding that plaintiff employee failed to prove that she contracted an occupational disease of carpal tunnel syndrome in connection with her job duties with defendant company, because: (1) plaintiff failed to satisfy her burden, but instead merely argued that no competent evidence existed to support a finding that plaintiff contracted carpal tunnel syndrome any other way besides her employment with defendant; (2) the unchallenged findings show that both of plaintiff's treating physicians admitted her symptoms started with a sliding door injury at her son's house in April 2000; and (3) the Commission was not required to give the testimony of plaintiff's expert witnesses more weight than that of another doctor who was an expert in hand and wrist disorders.</block_quote> <bold>2. Appeal and Error — preservation of issues — failure to cite</bold> <bold>authority</bold> <block_quote> Although plaintiff contends the Industrial Commission erred in a workers' compensation case by finding that a videotape was an accurate depiction of the primary duties of plaintiff's employment, this assignment of error is deemed abandoned because plaintiff failed to cite any authority in support of her argument.</block_quote> <bold>3. Workers' Compensation — doctor testimony — weight of</bold> <bold>testimony</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by according more weight to the opinion of a doctor who was an expert in hand and wrist disorders than the opinions<page_number>Page 606</page_number> of plaintiff's treating physicians, because: (1) competent evidence supported the Commission's findings of fact and its decision to give greater weight to the testimony of the one doctor; and (2) plaintiff's argument that her honesty and credibility require the Commission to accept her testimony regarding her job duties as true is irrelevant to whether the Commission can afford more weight to one testifying physician over another.</block_quote> <bold>4. Appeal and Error — preservation of issues — failure to cite</bold> <bold>authority — broad assertion</bold> <block_quote> Although plaintiff contends the Industrial Commission erred in a workers' compensation case by failing to find that plaintiff's bilateral carpal tunnel syndrome was compensable, this assignment of error is deemed abandoned under N.C.R. App. P. 28(b)(6) because plaintiff's brief fails to present any authority in support of this broad assertion.</block_quote>

<bold>1. Real Property — buyer's agents — evidence of agency</bold> <block_quote> There was sufficient evidence to support findings that defendants Swett and Abeers Realty were dual buyer's agents in the purchase of land by plaintiffs.</block_quote> <bold>2. Fraud — purchase of land — broker secretly selling</bold> <block_quote> The evidence supported findings that defendants Swett and Abeers Realty (buyer's agents) committed fraud in plaintiffs' purchase of land secretly owned by Swett. A broker can neither purchase from nor sell to the principal unless the latter expressly consents with full knowledge; moreover, fraud is presumed when property is transferred between the fiduciary and the principal.</block_quote> <bold>3. Damages and Remedies — monetary damages and rescission —</bold> <bold>return of plaintiff to status quo</bold> <block_quote> The trial court did not err by granting both the remedies of rescission and damages in an action arising from the fraudulent sale of land. While plaintiffs must generally elect their remedies, in this case rescission alone could not return plaintiffs to their prior position; moreover, they are entitled to the benefit of any bargain taken by defendants.</block_quote> <bold>4. Mortgages and Deeds of Trust — declaring null and void —</bold> <bold>trustee as active party</bold> <block_quote> The trial court did not err by relying on <italic>Virginia</italic> <italic>Carolina Laundry Supply Corporation v. Scott</italic>, <cross_reference>267 N.C. 145</cross_reference>, to declare a deed of trust null and void where the trustee was an active party to the lawsuit but the known beneficiary was not a party. The rule remains the same whether the identity of the beneficiary is known or unknown.</block_quote> <bold>5. Unfair Trade Practices — sale of real estate — within</bold> <bold>commerce — proof of fraud</bold> <block_quote> A person engaged in the sale of real estate is engaged in commerce within the meaning of the Unfair and Deceptive Trade<page_number>Page 626</page_number> Practices statute, and proof of fraud establishes that an unfair trade practices violation has taken place.</block_quote>

<bold>1. Appeal and Error — preservation of issues — failure to argue</bold> <bold>in brief</bold> <block_quote> Two of the original four assignments of error on appeal are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6) because defendant failed to argue them in her brief.</block_quote> <bold>2. Embezzlement — fiduciary relationship — merchandise</bold> <bold>associate or store clerk — clothing store</bold> <block_quote> Assuming arguendo that the trial court erred in an embezzlement case by instructing the jury that by law a fiduciary relationship existed between a merchandise associate and the clothing store where she worked, the error was not prejudicial because: (1) N.C.G.S. § <cross_reference>14-90</cross_reference> specifically references clerks, and witnesses testified that a merchandise associate is the same as a store clerk; and (2) the jury could have found defendant guilty of embezzlement in her nonfiduciary capacity as a store clerk based on the State's presentation of the remaining elements of the crime.</block_quote> <bold>3. Embezzlement — motion to dismiss — sufficiency of evidence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of embezzlement, because the State provided substantial evidence that: (1) as a merchandise associate or sales clerk authorized to conduct sale transactions on behalf of the pertinent clothing company, defendant was an agent of the company; (2) pursuant to the terms of defendant's employment, she<page_number>Page 655</page_number> was to receive and did receive property belonging to the company; and (3) defendant knew that the merchandise was not hers, and converted it to her own use or fraudulently sold some of the merchandise.</block_quote>

<bold>1. Landlord and Tenant — mall security — no duty under lease</bold> <block_quote> The terms of the parties' lease contradicted defendants' claim that plaintiff owed defendants a duty to provide adequate mall security, and summary judgment was correctly granted for plaintiff on an action alleging default on a lease.</block_quote> <bold>2. Landlord and Tenant — implied covenant of quiet enjoyment —</bold> <bold>criminal acts by third parties</bold> <block_quote> The implied covenant of quiet enjoyment does not extend to the acts of trespassers and wrongdoers and does not impose<page_number>Page 660</page_number> upon the landlord the duty to prevent criminal acts by third parties. Summary judgment was correctly granted for plaintiff-landlord in an action alleging that defendants defaulted under their lease.</block_quote> <bold>3. Landlord and Tenant — constructive eviction — lack of</bold> <bold>security</bold> <block_quote> Constructive eviction occurs when a landlord's breach of duty under the lease renders the premises untenable; here, the lease did not require plaintiff to provide mall security, defendants did not present any statutory or common law basis upon which to impose that duty, and summary judgment was correctly granted for plaintiff in an action for alleging that defendants defaulted under their lease.</block_quote>

<bold>Insurance — uninsured motorist — determining amount due —</bold> <bold>credits for payment from other carriers</bold> <block_quote> There are two determinations to be made in determining the amount due a plaintiff from an uninsured motorist policy: the limit of UIM coverage applicable to the motor vehicle and the amount plaintiff is entitled to recover under the statute. This case was remanded for a determination of the amount of loss suffered by plaintiff, which is necessary to the second determination (the parties had stipulated only that the loss was in excess of $200,000). Finally, Integon, the unnamed defendant, is not entitled to any credit by virtue of an overpayment to plaintiff by State Farm, another UIM carrier.</block_quote>