Volume 173 — North Carolina Court of Appeals Reports

<bold>1. Workers' Compensation — professional football player</bold> <bold>— compensable injury</bold> <block_quote> The findings in a workers' compensation case supported the conclusion that a professional football player sustained a compensable injury by accident and there was competent evidence to support the findings.</block_quote> <bold>2. Evidence — hearsay — testimony by</bold> <bold>declarant</bold> <block_quote> A statement by an ex-professional football player in a workers' compensation case about why he was terminated from his last team was not hearsay. Hearsay is a statement other than one made by the declarant while testifying; the plaintiff here was testifying when he responded to the question.</block_quote> <bold>3. Workers' Compensation — professional football</bold> <bold>player — number of weeks benefits awarded</bold> <block_quote> There was competent evidence in a workers' compensation case to support the number of weeks of benefits awarded to a professional football player where plaintiff returned to football briefly with another team, but was released because of injuries with defendant.</block_quote> <bold>4. Workers' Compensation — professional football</bold> <bold>player — injury protection payments made under contract</bold> <bold>— credit</bold> <block_quote> A professional football team was entitled to a dollar-for-dollar workers' compensation credit for an injury protection payment made under contract to an injured player, and the decision of the Industrial Commission was reversed on this issue.</block_quote><page_number>Page 135</page_number> <bold>5. Workers' Compensation — attorney fees —</bold> <bold>findings — insufficient</bold> <block_quote> An award of attorney fees was remanded in a workers' compensation case where the Commission's opinion contained no findings or conclusions on the issue and did not determine that a hearing had been brought, prosecuted, or defended without reasonable ground. N.C.G.S. § <cross_reference>97-88.1</cross_reference>.</block_quote>

<bold>Termination of Parental Rights — failure to appoint</bold> <bold>guardian ad litem to parent — mental illness</bold> <block_quote> The trial court erred in a termination of parental rights case by failing to appoint respondent mother a guardian ad litem under N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a)(6) when she has a diagnosis of bipolar affective disorder with possible psychotic disorder, because: (1) the trial court referenced respondent's mental wellbeing<page_number>Page 154</page_number> and its concern that respondent was unable to raise the minor children without assistance repeatedly in its written orders before and after receiving respondent's psychological evaluations; (2) it was the court's repeated findings that respondent was incapable of parenting her minor children based upon her mental illness in addition to respondent's own motion that triggered the requirement for appointment of a guardian ad litem; and (3) while respondent may be competent for some purposes, including her ability to assist counsel and maintain employment, it does not necessarily follow that she is not debilitated by her mental illness when it comes to parenting her children.</block_quote> <bold>2. Termination of Parental Rights — extraordinary</bold> <bold>delay in entering order — prejudicial error</bold> <block_quote> The trial court erred in a termination of parental rights case by delaying entry of an order until almost one year after completion of the hearing even though N.C.G.S. §§ <cross_reference>7B-1109</cross_reference>(e) and <cross_reference>7B-1110</cross_reference>(a) set the deadline no later than thirty days following the completion of the hearing, and the case is reversed, because: (1) the Court of Appeals has been apt to find prejudice in delays more than six months or more; (2) the need to show prejudice diminishes as the delay between the termination hearing and the date of entry of the order terminating parental rights increases; and (3) respondent continued to pay child support for her children during the delay yet was deprived of the opportunity to see them or bond with them in any way.</block_quote> Judge WYNN concurring in result only.

<bold>1. Appeal and Error — preservation of issues —</bold> <bold>failure to raise issue in complaint</bold> <block_quote> Although plaintiff contends the trial court erred in a premises liability case by entering summary judgment in favor of defendants when there was a genuine issue of material fact as to whether the person who injured her was an employee, agent, or independent contractor of defendants, this issue is dismissed because plaintiff failed to raise this issue in her complaint or to base her theory of recovery from defendants on vicarious liability.</block_quote> <bold>2. Premises Liability — open and obvious danger</bold> <bold>— summary judgment — failure to allege agents</bold> <block_quote> The trial court did not err in a premises liability case by granting summary judgment in favor of two of the defendants even though plaintiff contends the danger created by the high-speed buffing machine that caused her injury was not so open or obvious that as a matter of law defendants were relieved of their duty to protect visitors from or to warn visitors about such a dangerous condition, because: (1) these defendants did not own or operate the store in which plaintiffs injury occurred; and (2) plaintiff failed to allege in her complaint that either of these two defendants were agents of defendant grocery store.</block_quote><page_number>Page 208</page_number> <bold>3. Premises Liability — duty to keep premises safe</bold> <bold>and warn of hidden dangers — summary judgment —</bold> <bold>genuine issue of material fact</bold> <block_quote> The trial court erred by granting summary judgment in favor of defendant grocery store in plaintiff's action to recover for injuries received when she was struck by a buffer machine in the store because: (1) defendant as owner and operator of the store owed a duty to plaintiff to keep its premises safe and to warn her of any hidden dangers on its premises; and (2) there was more than one inference that could be drawn from the facts presented on the issues of negligence and contributory negligence.</block_quote>

<bold>1. Pleadings — Rule 11 sanctions — factual</bold> <bold>investigation</bold> <block_quote> There was sufficient evidence to support the trial court's finding that plaintiff violated the factual certification requirement of N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 11, justifying the imposition of sanctions in a case which rose from the division of family assets. An attorney representing the estate made an independent investigation and concluded that there was no factual basis for claims of fraud or undue influence; a similar inquiry by plaintiff would have found ample evidence that his mother was competent and fully involved in managing both her business and personal affairs until her death.</block_quote> <bold>2. Pleadings — Rule 11 sanctions — entire record</bold> <bold>considered</bold> <block_quote> The entire record was before the court at a Rule 11 sanctions hearing, not just plaintiff's testimony that he made a reasonable inquiry, because defendant's motions were explicitly based on the record of the case.</block_quote> <bold>3. Pleadings — frivolous appeals — authority to</bold> <bold>sanction under Rule 11</bold> <block_quote> The authority to sanction frivolous appeals by shifting expenses incurred on appeal is exclusively granted to the appellate courts under Appellate Rule 34. The trial court here abused its discretion by awarding under Rule 11 attorney fees and costs incurred by defendants in defending plaintiff's appeal to the Court of Appeals and his petition to the Supreme Court.</block_quote><page_number>Page 310</page_number> <bold>4. Pleadings — Rule 11 sanctions — discovery</bold> <bold>resulting from complaint</bold> <block_quote> Although plaintiff argues that the proper basis for discovery sanctions is N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 26(g) rather than N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 11, the document in issue here is plaintiff's complaint and Rule 11 applies.</block_quote> <bold>5. Pleadings — Rule 11 sanctions — frivolous</bold> <bold>nature of complaint — not immediately apparent —</bold> <bold>sanctions levied retroactively</bold> <block_quote> The trial court did not err by retroactively levying sanctions for discovery because the frivolous nature of the complaint was not discernible until after the evidence was entered and summary judgment ordered.</block_quote> <bold>6. Pleadings — Rule 11 sanctions — amount —</bold> <bold>evidence reviewed</bold> <block_quote> The trial court did not abuse its discretion in determining the amount of Rule 11 sanctions where it reviewed extensive affidavits itemizing defense counsel's expenses.</block_quote> <bold>7. Pleadings — Rule 11 sanctions — attorney fees</bold> <bold>— unsubstantiated allegations</bold> <block_quote> Unsubstantiated allegations of ex parte communications with trial judges do not bear on the award of reasonable attorney fees as a sanction under Rule 11.</block_quote> <bold>8. Pleadings — Rule 11 sanctions — discovery with</bold> <bold>previous case</bold> <block_quote> The trial court did not abuse its discretion by awarding as a sanction attorney fees and costs for discovery items that carried the file numbers of this suit and a previous suit.</block_quote> <bold>9. Pleadings — Rule 11 sanctions — costs of motion</bold> <bold>to dismiss</bold> <block_quote> Plaintiff violated Rule 11 when he signed a frivolous complaint. Expenses incurred during a motion to dismiss, whether granted or denied, were incurred due to plaintiff's signing and filing that complaint, and the trial court did not abuse its discretion by including those expenses in an award of sanctions.</block_quote> <bold>10. Appeal and Error — frivolous appeals — expense</bold> <bold>shifting — authority — appellate rules</bold> <block_quote> The proper basis for awarding expenses incurred on appeal, including attorney fees, is Appellate Rule 34. The application of N.C.G.S. § <cross_reference>6-21.5</cross_reference> is confined to the trial division.</block_quote><page_number>Page 311</page_number> <bold>11. Appeal and Error — preservation of issues —</bold> <bold>determination of issue by jury — insufficient request at</bold> <bold>trial</bold> <block_quote> Plaintiff did not preserve for appellate review the issue of whether he should have had a jury determine his good faith and motives under Rule 11. Although plaintiff and defendant requested a jury trial of all issues of fact in their complaint and answers, plaintiff did not point to anything in the record or the transcript of the Rule 11 hearing indicating that he made a timely request, objection, or motion for that hearing to be before a jury.</block_quote>

<bold>Administrative Law — judicial review of final agency</bold> <bold>decision — specific findings required</bold> <block_quote> The superior court erred by dismissing an adoptive parent's petition for judicial review of a final agency decision concerning Medicaid services for the child and by denying all relief, and the case is vacated and remanded to the superior court with instructions to remand to the agency for specific findings why the agency did not adopt the recommended decision of the ALJ, because: (1) the superior court exceeded its authority under the pre-2001 version of the Administrative Procedure Act, which is applicable in this case, when N.C.G.S. § <cross_reference>150B-51</cross_reference>(a) requires a superior court to make two threshold determinations before determining whether there is substantial evidence to support an agency decision and the superior court failed to do so; (2) a threshold determination must be made by the superior court to determine whether an agency rejected an ALJ decision without stating the specific reasons for doing so, and if the agency does not provide specific reasons, the superior court is not permitted to conduct substantive review but must reverse or remand on the procedural issue; and (3) in the absence of stated reasons by the agency as to why it rejected the ALJ decision, the courts cannot reasonably determine from the record whether the petitioner's asserted grounds for challenging the substance of the agency's<page_number>Page 402</page_number> final decision warrant reversal or modification of that decision under the applicable provisions of N.C.G.S. § <cross_reference>150B-51</cross_reference>(b).</block_quote>

<bold>Premises Liability — natural hazard on real property</bold> <bold>— liability of owner — constructive notice —</bold> <bold>foreseeability — issues of fact</bold> <block_quote> Defendants had a duty on these facts to exercise reasonable care regarding natural conditions on their lands lying adjacent to a public highway (a navigable river), provided that they had<page_number>Page 409</page_number> notice of a dangerous condition. The trial court erred by granting summary judgment for defendants on a negligence claim for injuries suffered when a decayed tree fell on plaintiff while his boat was tied to a pylon at defendants' boat ramp. The urban-rural distinction in older cases is no longer clear.</block_quote>

<bold>1. Workers' Compensation — timeliness of claim —</bold> <bold>last medical payment — foreign jurisdiction</bold> <block_quote> A workers' compensation claim was timely filed because it was within two years of the last medical compensation paid by defendants, even though the payment was to medical providers in Virginia. Nothing in the statutory definition of medical compensation limits the location to North Carolina, nor is there an exception<page_number>Page 423</page_number> for the employer's presumption that the claim will be in a foreign jurisdiction. N.C.G.S. § <cross_reference>97-24</cross_reference>.</block_quote> <bold>2. Workers' Compensation — timeliness of claim</bold> <bold>— short-term disability payments — not "other</bold> <bold>compensation"</bold> <block_quote> Short-term disability benefits paid in lieu of workers' compensation were not paid pursuant to the Workers' Compensation Act, and did not qualify as "other compensation" for timeliness purposes under N.C.G.S. § <cross_reference>97-24</cross_reference>.</block_quote> <bold>3. Workers' Compensation — appeal — failure</bold> <bold>to assign error — findings binding</bold> <block_quote> Failure to assign error in a workers' compensation case to findings about plaintiff's medical history and incapacity for employment meant that those findings were binding on appeal. The Industrial Commission's conclusion that plaintiff is totally disabled was upheld.</block_quote> <bold>4. Workers' Compensation — offered part-time</bold> <bold>employment — make-work</bold> <block_quote> The evidence in a workers' compensation case supported the finding that a part-time position offered to plaintiff was make-work and did not constitute other employment as defined by N.C.G.S. § <cross_reference>97-2</cross_reference>(9).</block_quote> <bold>5. Workers' Compensation — medical care —</bold> <bold>effectiveness</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by ordering defendants to pay for medical care which defendants contended was ineffective. There was substantial evidence of record that plaintiff's care was necessary to provide relief.</block_quote> <bold>6. Workers' Compensation — attorney fees — no</bold> <bold>abuse of discretion</bold> <block_quote> There was no abuse of discretion in the award of attorney fees in a workers' compensation action.</block_quote>

<bold>1. Constitutional Law — right to confrontation —</bold> <bold>prior sexual assault — testimonial evidence — photo</bold> <bold>lineup — harmless error</bold> <block_quote> Although the trial court violated defendant's right to confrontation in a double second-degree rape, first-degree kidnapping, possession of cocaine, possession of drug paraphernalia, and habitual misdemeanor assault case by allowing the admission of evidence regarding an alleged prior sexual assault obtained from a detective's testimony that a prior victim identified defendant as her assailant when the prior victim was unavailable at trial, it was harmless error beyond a reasonable doubt because: (1) the victim in this case provided sufficient detail of her rape and identified defendant as her attacker; and (2) the sexual assaults upon two prior victims were properly admitted to show defendant's modus operandi, common plan or scheme, intent, and knowledge.</block_quote> <bold>2. Evidence — prior crimes or bad acts — sexual</bold> <bold>assaults — modus operandi — common plan or scheme</bold> <bold>— intent — knowledge</bold> <block_quote> The trial court in a prosecution for second-degree rape, kidnapping and other offenses properly admitted evidence of two alleged prior sexual assaults by defendant under N.C.G.S. § <cross_reference>8C-1</cross_reference>,<page_number>Page 495</page_number> Rules 403 and 404 for the purpose of showing defendant's modus operandi, common plan or scheme, intent and knowledge because: (1) in regard to the similarity of this case to one of the prior victims, in both cases defendant initiated contact with a woman whom he had known for several years; both women had substance abuse problems and defendant told both of them that he had drugs they could use; in both cases defendant struggled with the women once they arrived at their destinations, he removed their clothes, he placed at least one of his hands on their neck, and he engaged in sexual intercourse; both women indicated they did not believe defendant would harm them prior to their attacks since they had known defendant for several years, they were friends, and he had treated them nicely; and a time disparity of seventeen months is not too remote for Rule 404(b) purposes; and (2) in regard to the similarity of this case with another prior victim, although a rape had not occurred at the time the police arrived, the evidence parallels what happened to the victim in this case earlier in the same evening.</block_quote> <bold>3. Evidence — pornographic magazines — criminal</bold> <bold>citation — harmless error</bold> <block_quote> The trial cout committed harmless error in a double second-degree rape, first-degree kidnapping, possession of cocaine, possession of drug paraphernalia, and habitual misdemeanor assault case by admitting an officer's testimony regarding pornographic magazines and a criminal citation found in defendant's motel room, because: (1) although the pornographic magazines could be considered prejudicial, a different outcome would not have resulted if these magazines had not been presented to the jury; and (2) although the citation indicated defendant illegally possessed a crack pipe and a half ounce of marijuana which was irrelevant to the issues in this case, the State could prove beyond a reasonable doubt that defendant raped the victim based upon her testimony alone which was also supported by the N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b) evidence demonstrating defendant's modus operandi, common plan or scheme, intent, and knowledge.</block_quote> <bold>4. Sentencing — remand — erroneous use of rape</bold> <bold>conviction to elevate kidnapping charge</bold> <block_quote> Although defendant neither objected to the sentence he received nor raised his two constitutional arguments in the trial court in a double second-degree rape, first-degree kidnapping, possession of cocaine, possession of drug paraphernalia, and<page_number>Page 496</page_number> habitual misdemeanor assault case, the Court of Appeals used its inherent authority under N.C. R. App. P. 2 and remanded the case to the trial court for resentencing, because: (1) the State conceded that one of defendant's rape convictions was erroneously utilized to elevate second-degree kidnapping to first-degree kidnapping; and (2) the State acknowledged that this dual use of one of defendant's rapes of the victim is restricted by <italic>State v. Stinson</italic>, <cross_reference>127 N.C. App. 252</cross_reference> (1997).</block_quote>

<bold>1. Vendor and Purchaser — reservation agreements for coastal</bold> <bold>property — not an option contract</bold> <block_quote> Reservation agreements for coastal property which did not require defendants to develop the property or to convey the lots to plaintiffs did not involve an offer to sell held open for a particular time and were not option contracts. The trial correctly granted a Rule 12(b)(6) motion to dismiss a claim for breach of those agreements.</block_quote> <bold>2. Vendor and Purchaser — reservation agreements for</bold> <bold>coastal real property — refundable deposits — no</bold> <bold>consideration</bold> <block_quote> Plaintiffs could not allege consideration in reservation agreements and deposits on coastal real estate where each deposit was fully refundable on request and had to be used, if at all, as payment toward the land.</block_quote> <bold>3. Unfair Trade Practices — real estate reservation</bold> <bold>agreement — alleged loss of contract rights —</bold> <bold>invalid contract</bold> <block_quote> The trial court did not err by dismissing an unfair and deceptive trade practices claim concerning a reservation agreement and deposit on coastal land. The practices alleged to be unfair involved the loss of contract rights under the reservations, but it was decided elsewhere in this opinion that these reservations were not contracts.</block_quote>

<bold>1. Nuisance — per accidens — findings of fact</bold> <bold>— reasonableness</bold> <block_quote> The trial court erred in a nuisance case by concluding its findings of fact adequately supported its conclusion of law that defendants' racetrack constitutes a nuisance per accidens, and the case is remanded for further findings of fact, because the trial court's findings of fact do not acknowledge the distinction between a reasonable person in plaintiffs' or defendants' position and reasonable persons generally looking at the whole situation impartially and objectively.</block_quote> <bold>2. Nuisance — per accidens — findings of fact</bold> <bold>— substantiality of injury</bold> <block_quote> The trial court did not err in a nuisance case by its findings of fact regarding the substantiality of the injury, and the findings are supported by competent evidence because: (1) plaintiffs' testimony and exhibits provide ample support for the trial court's findings; and (2) factors including the objective measurement of the sound generated by ATVs operated on the track, the failure of plaintiffs to offer testimony from disinterested or impartial witnesses, and defendants' characterization of plaintiffs' testimony as exaggerated all relate to the credibility and weight to be afforded the testimony which must be resolved by the trial court and are not a basis for overturning a finding of fact.</block_quote> <block_quote> <bold>3. Evidence — acoustics — expert testimony</bold> <bold>— motion to strike</bold></block_quote> <block_quote> The trial court did not abuse its discretion in a nuisance case by denying defendants' motion to strike the testimony of plaintiffs' expert witness in acoustics and noise control, because: (1)<page_number>Page 710</page_number> defendants' objection based on N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 602 is without merit; and (2) defendants have made no showing and presented no argument suggesting that the information relied upon by the expert was an inadequate basis under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 703 for the expert's opinion.</block_quote>