Volume 169 — North Carolina Court of Appeals Reports

<bold>1. Appeal and Error — assignments of error — required —</bold> <bold>appendixes — statutes, rules, regulations</bold> <block_quote> The Court of Appeals considered certain arguments, in its discretion, even though the questions did not refer to the pertinent assignments of error, as required. Respondent's motion to strike certain appendixes to petitioner's brief was denied, even though they were not part of the printed record on appeal nor offered into evidence, because appendixes were relevant portions of statutes, rules, or regulations, as permitted by N.C.R. App. P. 28 (d)(1)(c). An appendix consisting of an excerpt from S.B. 575 was stricken.</block_quote> <bold>2. Administrative Law — judicial review of agency decision —</bold> <bold>standard of review — whole record and de novo</bold> <block_quote> The superior court properly employed both de novo review and the whole record test in reviewing an OSHA citation where petitioner alleged that the Department of Labor's decision was affected by error of law and was unsupported by substantial evidence.</block_quote> <bold>3. Employer and Employee — OSHA — violations by subcontractors</bold> <bold>— general contractor's duty to inspect job site</bold> <block_quote> A general contractor had a duty to inspect the job site to detect safety violations committed by its subcontractors as well as its own employees. Under N.C.G.S. § <cross_reference>95-129</cross_reference>(2), the general<page_number>Page 18</page_number> contractor's duty extends to employees of subcontractors on job sites, but only to violations that could reasonably be detected by inspecting the job site.</block_quote> <bold>4. Administrative Law — Operations Manual statement —</bold> <bold>rule-making not required</bold> <block_quote> The multi-employer OSHA citation policy is not invalid because it has not been promulgated as a rule. The multi-employer policy is from the North Carolina Operations Manual, which is a nonbinding interpretative statement, not a rule requiring formal rule-making procedures.</block_quote>

<bold>1. Appeal and Error — bench trial — standard of review</bold> <block_quote> In reviewing the findings from a bench trial, the Court of Appeals reviews matters of law de novo and reviews matters of fact for any competent supporting evidence, whether or not there is contradictory evidence of any one fact.</block_quote> <bold>2. Agriculture — lease of farm and tobacco allotments —</bold> <bold>duration</bold> <block_quote> There was testimony in a bench trial supporting the trial court's finding that a consent judgment reflected the agreement of the parties that a lease of two farms and tobacco allotments would terminate by 1 December 1999 and not extend into 2000.</block_quote> <bold>3. Agriculture — lease of farms and tobacco allotments —</bold> <bold>over-production of tobacco</bold> <block_quote> In a bench trial involving the lease of two farms and tobacco allotments, there was evidence supporting a finding that plaintiffs had overproduced 11,500 pounds of tobacco on one of the farms. Defendant did not take exception to that finding and it is binding on appeal.</block_quote> <bold>4. Agriculture — lease of farms and tobacco allotments —</bold> <bold>marketing cards — expiration of lease</bold> <block_quote> The trial court erred by concluding that defendants breached their contract arising out of the consent judgment regarding the lease of two farms and tobacco allotments by not delivering the year 2000 marketing cards. Although these parties clearly contemplated the possible sale of tobacco grown on defendants' lands after 1 December 1999, nothing in the consent judgment or lease agreement suggests an intention of the parties to agree that defendants accepted any responsibility or obligation to turn over their 2000 marketing cards to plaintiffs to procure the sale of the overproduced tobacco after expiration of the lease in 1999.</block_quote><page_number>Page 70</page_number> <bold>5. False Imprisonment — contempt to enforce consent judgment —</bold> <bold>insufficient evidence</bold> <block_quote> The findings supported the trial court's conclusion that defendants failed to prove a cause of action for false imprisonment arising from a show cause order to enforce a consent judgment concerning farm leases and tobacco allotments. The trial court's finding that defendant Donald Groce consented to his imprisonment by failing to deliver to plaintiffs the year 2000 tobacco marketing cards, unsupported by the evidence, was not necessary to support the trial court's conclusion that defendants failed to prove an intentional or unlawful detention by plaintiffs.</block_quote> <bold>6. Abuse of Process — evidence not sufficient — false</bold> <bold>imprisonment claim</bold> <block_quote> The trial court did not err by concluding that plaintiffs did not commit an abuse of process in an action concerning the lease of two farms and tobacco allotments where defendants did not identify any evidence that plaintiffs maliciously abused the legal process.</block_quote>

<bold>1. Attorneys; Contracts — breach of contract — discharged</bold> <bold>attorney — costs — summary judgment</bold> <block_quote> The trial court did not err in an action arising out of a contingency fee contract to perform legal services and for representation during a caveat proceeding by awarding summary judgment in favor of defendants on plaintiff discharged law firm's claim for breach of contract and by denying plaintiff's motion for summary judgment on this claim, because: (1) although plaintiff contends defendants are contractually obligated to pay plaintiff thirty-three and one-third percent of the settlement amount even though the written settlement agreement was never executed by defendants, plaintiff presents no authority to support its argument; (2) the legal services contract is silent on whether defendants agreed to pay costs independent of the outcome at trial, and any ambiguity in the contract is to be construed against plaintiff, the drafting party; and (3) plaintiff presented no case authority to support its argument that defendants were contractually obligated to reimburse costs plaintiff incurred on their behalf.</block_quote> <bold>2. Quantum Meruit — contingency fee contracts between attorney</bold> <bold>and client — attorney discharged — attorney fees</bold> <block_quote> The trial court erred in an action arising out of a contingency fee contract to perform legal services and for representation during a caveat proceeding by awarding summary judgment in favor of plaintiff law firm on its quantum meruit claim for attorney fees, and the case is remanded for entry of summary judgment in favor of defendants because although in contingency fee contracts between an attorney and client quantum meruit permits a claim for and an award of attorney fees and costs once the client discharges the attorney, plaintiff is not entitled to recover fees under quantum meruit since there was no settlement or judgment in favor of defendants which was the contingency specified in the attorney fee contract.</block_quote><page_number>Page 119</page_number> <bold>3. Quantum Meruit — contingency fee contracts between attorney</bold> <bold>and client — attorney discharged — costs and expenses</bold> <block_quote> The trial court did not err in an action arising out of a contingency fee contract to perform legal services and for representation during a caveat proceeding by awarding summary judgment in favor of plaintiff law firm on its quantum meruit claim for costs and expenses advanced by plaintiff to defendants because: (1) the North Carolina Rules of Professional Conduct in effect during the pendency of this case prohibited a lawyer from advancing court costs unless the client remains ultimately liable for such costs and expenses; and (2) plaintiff cannot be liable for costs even in a contingency fee contract.</block_quote>

<bold>1. Motor Vehicles — habitual DWI — indictment — date of prior</bold> <bold>conviction — amendment — Rule of Lenity</bold> <block_quote> The indictment used to charge defendant with habitual DWI was not fatally defective even though it originally alleged that one of defendant's prior DWI convictions occurred on 1 April 1993, which was actually the date of the offense and eight days outside the seven-year limitation of the habitual DWI statute, N.C.G.S. § <cross_reference>20-138.5</cross_reference>(a), where the trial court allowed the prosecutor's<page_number>Page 138</page_number> motion to amend the indictment to reflect the date of conviction on 11 August 1993. The Rule of Lenity did not require that the date of the offense rather than the date of conviction be used in the interpretation of the DWI statute because the statute clearly refers to prior convictions, and there is no ambiguity in the statute.</block_quote> <bold>2. Indictment and Information — amendment — habitual driving</bold> <bold>while impaired — no substantial alteration</bold> <block_quote> The trial court did not err in a habitual driving while impaired case by allowing the State to amend the indictment after the State rested, because: (1) permitting the State to amend the indictment in the instant case to reflect the date of conviction rather than the date of the offense did not impair defendant's ability to defend the charge of habitual DWI; (2) time was not of the essence as the indictment specified defendant was being charged with habitual DWI; (3) defendant never denied having been convicted of the 1993 DWI, he had notice of the 1993 DWI, and he had ample time to prepare for trial; and (4) the amendment to the indictment did not substantially alter the charge set forth in the indictment.</block_quote> Judge HUNTER concurring in part and dissenting in part.

<bold>1. Workers' Compensation — compensable injury — professional</bold> <bold>football player</bold> <block_quote> The Industrial Commission did not err by finding that a professional football player sustained a compensable injury by accident arising out of and in the course of his employment where his leg was broken and ankle tendons torn when other players fell on the back of his leg during a game. There was evidence to support the Commission's findings that the injury was unusual.</block_quote> <bold>2. Workers' Compensation — disability — professional football</bold> <bold>player — reason for being released from team — personal</bold> <bold>knowledge</bold> <block_quote> The trial court did not err by allowing plaintiff, a football player, to testify about the reason for his termination from a team. Plaintiff offered personal knowledge about why he was released and his testimony was not hearsay.</block_quote> <bold>3. Workers' Compensation — disability — injured professional</bold> <bold>football player — return with another team — eventual</bold> <bold>release</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by awarding compensation to a professional football player who was injured while playing with defendant, then returned to play with another team. While plaintiff did try out for and make the other team, he was released from that team because of injuries suffered with defendant.</block_quote> <bold>4. Workers' Compensation — disability — professional football</bold> <bold>player — dollar-for-dollar credits</bold> <block_quote> The Industrial Commission did not abuse its discretion in a workers' compensation disability case by awarding a time credit rather than a dollar-for-dollar credit for payments made by defendants to plaintiff, a professional football player, after he was injured. Dollar-for-dollar credits are precluded by North Carolina law.</block_quote><page_number>Page 530</page_number> <bold>5. Workers' Compensation — attorney fees — findings</bold> <block_quote> An award of attorney fees in a workers' compensation case was remanded for additional findings of fact and conclusions of law on attorney fees and a statement of the specific statute relied upon in making the award.</block_quote>

<bold>Zoning — parking lot — special use permit — local ordinance —</bold> <bold>statutory authority exceeded</bold> <block_quote> A parking lot is not a building under the applicable version of N.C.G.S. § <cross_reference>160A-392</cross_reference>, and the Board of Adjustment lacked jurisdiction to issue or deny a special use permit for a parking lot for school buses. The pre-amendment version of the statute referred to the use of buildings; while the Board of Adjustment argues that the Rocky Mount ordinance defines "building" to include "parking area," that ordinance is not applicable unless Rocky Mount has authority under the statute (a local entity cannot define the scope of a grant of authority from the General Assembly). The plain meaning of "building" in the statute did not include parking lots.</block_quote>

<bold>1. Child Support, Custody, and Visitation — support —</bold> <bold>modification — children's reasonable needs — findings not</bold> <bold>sufficient</bold> <block_quote> A child support modification was reversed and remanded where the court did not make the necessary findings about the children's reasonable needs. Although the court found that the needs of the children had not changed, the court made no finding, and the record contained no indication, of what those expenses had been. It is not enough that the court received testimony and documentation from which sufficient findings could have been made.</block_quote> <bold>2. Child Support, Custody, and Visitation — support — award in</bold> <bold>excess of Guidelines — findings insufficient</bold> <block_quote> The trial court made insufficient findings to support an award in excess of the Child Support Guidelines where the Court of Appeals could only speculate on how the trial court reached its figure and whether it was supported by competent evidence.</block_quote>

<bold>1. Appeal and Error — preservation of issues — questions not</bold> <bold>raised at trial</bold> <block_quote> Issues and theories not raised at trial were not reviewed on appeal.</block_quote> <bold>2. Appeal and Error — preservation of issues — assignments of</bold> <bold>error — arguments required</bold> <block_quote> Assignments of error not supported by argument or authorities were abandoned.</block_quote><page_number>Page 631</page_number> <bold>3. Arbitration and Mediation — denial of motion to compel —</bold> <bold>findings required</bold> <block_quote> The denial of a motion to stay and compel arbitration in a construction dispute was reversed and remanded for further findings where the court's order contained neither factual findings that would allow review, nor a determination of whether an arbitration agreement exists between the parties.</block_quote>

<bold>Governor — budgetary powers — suspension of payments to local</bold> <bold>governments</bold> <block_quote> Summary judgment in favor of defendant-Secretary of Revenue was affirmed where defendant relied on an Executive Order in suspending payments to local governments of local government tax reimbursements and local government tax-sharing funds. The North Carolina Constitution clearly gives the Governor a duty to balance the budget and prevent a deficit, that must be done through expenditures, and expenditures are here interpreted to be payments, disbursements, allocations, or otherwise, budgeted to be paid out of State receipts within a fiscal period. Separation of powers was not violated because the Governor was exercising powers constitutionally committed to his office, and language in the Constitution limiting the use of taxes to stated special objects is directed toward the General Assembly. N.C. Const. art. <cross_reference>III</cross_reference>, § <cross_reference>5</cross_reference>(<cross_reference>3</cross_reference>).</block_quote>

<bold>1. Statutes of Limitation and Repose — fiduciary duty —</bold> <bold>attorney in real estate transaction — last act giving rise to</bold> <bold>damages</bold> <block_quote> The trial court did not err by granting defendant-Brunson's Rule 12(b)(6) motion to dismiss a claim of breach of fiduciary duty where Brunson was an attorney involved in a partnership's real estate transactions; the last act giving rise to plaintiff's damages was more that six years before Brunson was named as a defendant regarding one subdivision, and eight years before the lawsuit was filed regarding another subdivision; and both the statute of repose and the statute of limitations had long since passed.</block_quote> <bold>2. Statutes of Limitation and Repose — fraud — attorney in real</bold> <bold>estate transaction — discovery of facts — attorney-client</bold> <bold>relationship</bold> <block_quote> A claim for fraud against an attorney arising from a real estate transaction was correctly dismissed pursuant to a Rule 12(b)(6) motion for failure to meet the statute of limitations.</block_quote> <bold>3. Statutes of Limitation and Repose — negligent</bold> <bold>misrepresentation — attorney in real estate transaction —</bold> <bold>damages apparent</bold> <block_quote> The trial court properly concluded that a claim against an attorney for negligent misrepresentation in a real estate transaction was barred by the applicable statute of limitations. Although the statute of limitations is three years, plaintiff's damage (his sale of property to a buyer in which his partner had an ownership interest) became apparent more than five years before he began this action.</block_quote> <bold>4. Statutes of Limitation and Repose — civil conspiracy —</bold> <bold>attorney in real estate transaction</bold> <block_quote> Plaintiff's claim for civil conspiracy was time barred because it was brought more than six years and eight years after the real estate transactions involved.</block_quote><page_number>Page 675</page_number> <bold>5. Statutes of Limitation and Repose — constructive fraud —</bold> <bold>real estate transaction — adding defendant</bold> <block_quote> A claim for constructive fraud arising from a real estate transaction was time-barred where plaintiff learned of the relationship between defendants in February 1998 and did not add this defendant until 2003, two years after the statute of limitations ran.</block_quote> <bold>6. Statutes of Limitation and Repose — failure to affirmatively</bold> <bold>plead defense — plaintiff not surprised</bold> <block_quote> The trial court properly considered defendant's statute of limitations defense as to plaintiff's claims for fraud, negligent misrepresentation, and civil conspiracy where plaintiff argued that defendant had not affirmatively pled the statute of limitations in his motion to dismiss and that he was surprised by defendant's statute of limitations argument, but plaintiff received defendant's brief on his statute of limitations defense prior to the hearing, argued that issue before the trial court, and did not object that the defense was identified in defendant's memorandum rather than in his motion.</block_quote> <bold>7. Civil Procedure — Rule 12(b)(6) motion — legal memoranda</bold> <bold>considered — not converted to summary judgment</bold> <block_quote> The trial court did not err by not converting defendant's Rule 12(b)(6) motion to dismiss into a motion for summary judgment where counsel presented memoranda on the law without exhibits and did not present any factual evidence or allegations which the trial court could only properly address with a summary judgment hearing.</block_quote>

<bold>Workers' Compensation — causation — medical history and</bold> <bold>testimony — credibility</bold> <block_quote> There was competent evidence to support the Industrial Commission's finding of causation in a workers' compensation case where the finding was that plaintiff first injured his hamstring, then suffered a herniated disk. Although defendant challenged the testimony of plaintiff's doctor as the product of an incomplete picture of plaintiff's history, the doctor was entitled to credit his patient's account of his own symptoms, and the<page_number>Page 760</page_number> Commission found that plaintiff's testimony about his medical history was credible.</block_quote>

<bold>Search and Seizure — investigatory stop — drugs — motion to</bold> <bold>suppress — pat down</bold> <block_quote> The trial court did not err in a trafficking in cocaine by possession and transportation case by denying defendant's motion to suppress evidence obtained from the search of his motor vehicle, because: (1) officers had a reasonable articulable suspicion that defendant was involved in illegal activity at the time they made the investigatory vehicle stop; (2) the police lawfully stopped a vehicle fitting a description given by a reliable confidential informant, lawfully entered and moved the vehicle with defendant's consent, and smelled cocaine upon entering the vehicle; (3) an officer does not need to obtain a warrant or have probable<page_number>Page 791</page_number> cause to enter a vehicle if the owner of the vehicle gives consent; (4) a search warrant is not required before a lawful search based on probable cause of a motor vehicle in a public roadway or in a public vehicular area may take place; (5) plain smell of drugs by an officer is evidence to conclude there is probable cause for a search; and (6) although defendant contends the pat down of his person violated his constitutional rights, this argument is irrelevant when neither the pat down nor the evidence of marijuana found on defendant's person factored into the legality of the vehicular stop, entry and movement of the vehicle, and search of the vehicle leading to the cocaine charges.</block_quote>