Volume 175 — North Carolina Court of Appeals Reports

<bold>1. Termination of Parental Rights — guardian ad</bold> <bold>litem for parent — incapacity to provide care not</bold> <bold>alleged</bold> <block_quote> The trial court did not err by not appointing a guardian ad litem under N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a)(6) for the parent in a termination of parental rights proceeding where incapability to provide proper care for the children was not alleged and respondent did not request a guardian ad litem.</block_quote><page_number>Page 67</page_number> <bold>2. Mental Illness — termination of parental rights</bold> <bold>— Rule 17 — guardian for parent — not</bold> <bold>appointed</bold> <block_quote> The trial court did not abuse its discretion by not appointing a guardian ad litem under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 17 for the parent in a termination of parental rights proceeding.</block_quote> <bold>3. Constitutional Law — effective</bold> <bold>assistance of counsel — termination of parental</bold> <bold>rights</bold> <block_quote> A termination of parental rights respondent was not denied effective assistance of counsel when her attorney informed the court that she did not need the appointment of a guardian ad litem. Respondent's attorney was familiar with respondent and vigorously and zealously represented her; moreover, there was overwhelming evidence supporting termination of respondent's parental rights.</block_quote> <bold>4. Termination of Parental Rights — assignment of</bold> <bold>error — only one of three grounds for termination</bold> <block_quote> Only one of the grounds in N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a) is necessary to terminate parental rights. Whether there was sufficient evidence to support one of those grounds in this case was not addressed where respondent did not assign error to the other two grounds cited by the trial court.</block_quote> <bold>5. Termination of Parental Rights — relative</bold> <bold>available for custody — termination not an abuse</bold> <bold>of discretion</bold> <block_quote> The trial court did not abuse its discretion by terminating parental rights when a sister was allegedly able to take custody. Whether a relative can take custody is for the dispositional rather than the adjudicatory phase, the court is not required to make findings on all of the evidence, the court may have considered this issue without mentioning it, and the sister's statement was equivocal.</block_quote>

<bold>1. Workers' Compensation — arthritis —</bold> <bold>insufficient evidence of causation</bold> <block_quote> There was competent evidence to support the Industrial Commission's conclusion that plaintiff's degenerative arthritic condition in her knees and its treatment were not compensable. Although plaintiff suffered a prior compensable knee injury from falls, she did not establish that she had a preexisting arthritic condition, and there was evidence that tears such as those suffered by plaintiff were not well-accepted as causing arthritis and that obesity such as plaintiff's could aggravate degenerative changes.</block_quote> <bold>2. Workers' Compensation — side effects of</bold> <bold>medication — insufficient evidence of actual</bold> <bold>causation</bold> <block_quote> There was competent evidence to support the Industrial Commission's finding and conclusion that plaintiff's restorative dental treatment was not compensable where, although "dry mouth" was a potential side effect of several of plaintiff's medications, there was no testimony as to what actually caused plaintiff's dental condition.</block_quote><page_number>Page 77</page_number> <bold>3. Workers' Compensation — side effects of</bold> <bold>medication — insufficient evidence of actual causation</bold> <block_quote> The Industrial Commission did not err by not finding compensable treatment of plaintiff's esophageal reflux, constipation, and nausea. While there was testimony that many of plaintiff's medications have those conditions as side effects, there was no testimony as to actual cause.</block_quote> <bold>4. Workers' Compensation — attorney fees denied</bold> <bold>— defense not unnecessarily unreasonable</bold> <block_quote> The Industrial Commission did not err by failing to award plaintiff attorney fees pursuant to N.C.G.S. § <cross_reference>97-88.1</cross_reference> because defendants' defense of plaintiff's claims was not necessarily unreasonable.</block_quote>

<bold>1. Public Officers and Employees — reinstatement</bold> <bold>to former position — Whistleblower Act — employee</bold> <bold>grievance matters</bold> <block_quote> The trial court did not err by concluding the Whistleblower Act does not apply to plaintiff employee's 1998 suit seeking reinstatement to his former position even though plaintiff contends it constitutes reporting to "another appropriate authority" the violation of a rule or regulation under the Whistleblower Act, because: (1) the lawsuit did not concern matters affecting general public policy; (2) the definition of a protected activity is<page_number>Page 111</page_number> not extended to individual employment actions that do not implicate broader matters of public concern; and (3) the General Assembly did not intend N.C.G.S. § <cross_reference>126-84</cross_reference> to protect a State employee's right to institute a civil action concerning employee grievance matters.</block_quote> <bold>2. Public Officers and Employees — unlawful retaliation</bold> <bold>and discrimination — legitimate nonretaliatory reasons</bold> <block_quote> The trial court did not err by granting summary judgment in favor of defendant employer North Carolina Department of Transportation (NCDOT) based on its conclusion that there was no genuine issue of material fact in a suit where plaintiff employee alleged unlawful retaliation and discrimination by NCDOT based on plaintiff's reporting and litigating unlawful and improper actions and seeking injunctive relief, damages, payment of back wages, full reinstatement of fringe benefits, costs, and attorney fees, because: (1) assuming arguendo that plaintiff engaged in a protected activity, NCDOT presented legitimate nonretaliatory reasons for all of the actions it has taken; and (2) plaintiff acknowledged in his deposition testimony that there were legitimate explanations for the actions he alleged were retaliatory.</block_quote> <bold>3. Public Officers and Employees — employer retaliation</bold> <bold>— failure to submit position for upgrade</bold> <block_quote> Although plaintiff employee contends the trial court erred by dismissing plaintiff's claim regarding defendant employer's failure to submit the Chief Internal Auditor position for upgrade, this assignment of error is overruled because: (1) plaintiff was not a state employee when the position was not submitted for upgrade, and thus, he cannot seek relief under the Whistleblower statute; and (2) it is not logical to believe that NCDOT failed to seek a necessary upgrade of the position in order to retaliate against plaintiff who did not occupy the position at the time of the upgrades in other State government agencies on the chance that plaintiff would again occupy that position at some point in the future.</block_quote>

<bold>Divorce — incorporated settlement agreement —</bold> <bold>declaratory judgment action — subject matter</bold> <bold>jurisdiction</bold> <block_quote> The district court lacked subject matter jurisdiction over a declaratory judgment action seeking an interpretation of the parties' obligations arising from their separation agreement that was incorporated into a consent divorce judgment. A consent judgment is not one of the instruments a court can interpret pursuant to a declaratory judgment action; however, there may be a remedy through a contempt proceeding.</block_quote>

<bold>1. Statutes of Limitation and Repose — installment</bold> <bold>contracts — period begins running from time each</bold> <bold>individual installment due</bold> <block_quote> The trial court erred in a breach of lease agreement case by granting summary judgment in favor of defendant lessees based on the running of the statute of limitations where the lease agreement<page_number>Page 185</page_number> was modified by a bankruptcy confirmation order, defendants thereafter failed to meet their obligation to make twenty consecutive monthly payments of $530.00 beginning August 1998 and one payment of $289.65 in April 2000, and plaintiff filed the complaint on 13 October 2001, because: (1) the lease in this case is governed by the Uniform Commercial Code and is subject to a four-year statute of limitations, and the statute of limitations for filing this action began to run on 30 June 1998; (2) the general rule regarding the running of the statute of limitations for installment contracts is that the limitations period begins running from the time each individual installment becomes due; and (3) plaintiff is barred from recovering only those installment payments due prior to 14 October 1997, four years preceding the 13 October 2001 date on which it filed suit.</block_quote> <bold>2. Laches — failure to show change in condition of</bold> <bold>property or in relations of parties — failure to</bold> <bold>demonstrate prejudice</bold> <block_quote> The trial court erred in a breach of lease agreement case by granting summary judgment in favor of defendant lessees based on the equitable doctrine of laches, because: (1) laches will only be applied where lapse of time has resulted in some change in the condition of the property or in the relations of the parties which would make it unjust to permit the prosecution of the claim; and (2) defendants failed to demonstrate how they were prejudiced by plaintiffs alleged delay in filing the complaint when under the payment plan, the final payment was due in April 2000 and plaintiff filed suit for breach of the lease agreement on 13 October 2001.</block_quote> <bold>3. Leases of Personal Property — modification of</bold> <bold>lease agreement — breach — summary judgment</bold> <block_quote> The trial court did not err in a breach of lease agreement case by denying plaintiff lessor's motion for summary judgment and its motion for reconsideration even though plaintiff contends the trial court failed to recognize the scope and effect of the bankruptcy court's confirmation order, because while the confirmation order modifies the lease agreement and is binding on the parties, genuine issues of material fact remain regarding whether defendants breached the lease agreement as modified.</block_quote>

<bold>Bail and Pretrial Release — appearance bond —</bold> <bold>forfeiture — grounds for relief — notice</bold> <block_quote> The trial court lacked authority to grant surety's motion to set aside an entry of forfeiture of an appearance bond under N.C.G.S. § <cross_reference>15A-544.4</cross_reference>(e) on the ground that the surety was not provided with notice of the forfeiture within thirty days after entry of forfeiture, and the case is remanded with instructions for the trial court to either dismiss surety's motion or deny the same for the reasons set forth in the Court of Appeals opinion, because: (1) surety's motion to set aside the entry of forfeiture was not premised on any ground set forth in N.C.G.S. § <cross_reference>15A-544.5</cross_reference>, and that statute states there shall be no relief from a forfeiture except as provided in the statute and that a forfeiture shall be set aside for any one of the reasons set forth in Section (b)(1-6) and none other; (2) sureties are not without recourse where notices of forfeiture are not in compliance with N.C.G.S. § <cross_reference>15A-544.4</cross_reference> since the General Assembly specifically made allowance for relief from final judgment of forfeiture for faulty notice, N.C.G.S. § <cross_reference>15A-544.8</cross_reference>(b)(1); and (3) the fact that the General Assembly omitted faulty notice as a ground for relief from an entry of forfeiture suggests the legislature made a conscious choice in this regard.</block_quote>

<bold>1. Appeal and Error — preservation of issues —</bold> <bold>constitutional error — assignment of error</bold> <block_quote> Defendant's failure to refer in his assignment of error to any constitutional error in the denial of a continuance waived appellate review of any constitutional issue.</block_quote> <bold>2. Criminal Law — DSS not a prosecutorial agency —</bold> <bold>continuance and review of notes — denied</bold> <block_quote> The Department of Social Services was not a prosecutorial agency in the circumstances of this prosecution for statutory rape and other charges. The Department was thus not required to turn over its notes to defendant pursuant to N.C.G.S. § <cross_reference>15A-903</cross_reference>(a)(1), and the court did not abuse its discretion by denying defendant a continuance to review the notes and interview witnesses.</block_quote> <bold>3. Evidence — description of sexually explicit photos</bold> <bold>— similar previous testimony</bold> <block_quote> The trial court did not abuse its discretion by allowing a victim of statutory rape and other crimes to describe explicit photos of her mother and defendant. This testimony did not differ significantly from her previous testimony.</block_quote> <bold>4. Criminal Law — flight — instruction —</bold> <bold>evidence of avoidance of apprehension — prejudice not</bold> <bold>shown</bold> <block_quote> Defendant did not show prejudicial error from an instruction on flight where he missed two appointments with a detective, fled the area, and presented false identification when pulled over in South Carolina, and where he merely made the conclusory statement on appeal that the instruction was prejudicial.</block_quote>

<bold>Termination of Parental Rights — failure to appoint</bold> <bold>guardian ad litem for parent — mental illness</bold> <block_quote> The trial court erred in a termination of parental rights case by failing to hold a hearing to determine respondent mother's entitlement under N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a)(6) to the appointment of<page_number>Page 388</page_number> a guardian ad litem at the hearing where the minor child was adjudicated neglected, and the case is remanded for appointment of a guardian ad litem for respondent and a new hearing. Although the trial court did not terminate respondent's parental rights by specifically relying on dependency, the mother's mental health issues were present throughout the permanency planning reviews and were so intertwined with the child's neglect as to obviate consideration of the termination order without concurrent consideration of the mental issues that were present.</block_quote>

<bold>Appeal and Error — assignments of error — broad,</bold> <bold>vague, and unspecific — appeal dismissed</bold> <block_quote> Assignments of error asserting that the trial court's rulings were "contrary to the caselaw of this jurisdiction" were too broad, did not identify the issues briefed on appeal, and resulted in dismissal of the appeal.</block_quote>

<bold>1. Appeal and Error — preservation of issues —</bold> <bold>failure to argue</bold> <block_quote> Defendant's assignments of error two, four, five, and six are deemed under N.C.R.App.P. 28(b)(6) because defendant failed to argue them.</block_quote> <bold>2. Appeal and Error — preservation of issues —</bold> <bold>guilty plea — writ of certiorari — motion for</bold> <bold>appropriate relief</bold> <block_quote> Although defendant does not have a statutory right to appeal since he pleaded guilty at trial and now contends the trial court erred in a multiple taking indecent liberties with a child sentencing proceeding by determining without a jury that defendant had ten prior record level points and by failing to consider mitigating<page_number>Page 493</page_number> factors, the court can address the first issue because: (1) defendant has a petition for writ of certiorari pending before the Court of Appeals; and (2) defendant addressed the first issue in his motion for appropriate relief.</block_quote> <bold>3. Sentencing — prior record level —</bold> <bold>preponderance of evidence — similarity of out-of-state</bold> <bold>convictions — presumption of regularity for prior</bold> <bold>convictions</bold> <block_quote> The trial court did not err in a multiple taking indecent liberties with a child sentencing proceeding by determining without a jury and by a preponderance of the evidence that defendant had ten prior record level points, because: (1) defendant's prior North Carolina convictions for assault inflicting serious injury and larceny merited one point each since that determination is a fact of a prior conviction; (2) four of defendant's out-of-state convictions were substantially similar to offenses under North Carolina law and these determinations did not offend defendant's Sixth Amendment right to a jury trial; and (3) prior convictions are entitled to a presumption of regularity when challenged under N.C.G.S. § <cross_reference>15A-980</cross_reference> and the burden of overcoming the presumption properly rests with defendant.</block_quote>

<bold>Appeal and Error — appellate rules violations</bold> <bold>— failure to limit scope of review — failure to give</bold> <bold>adequate notice</bold> <block_quote> Plaintiff's appeal is dismissed for failure to comply with N.C. R. App. P. 10(c)(1), because: (1) plaintiff's single assignment of error without record references does not set forth a legal issue for determination and does no more than duplicate the notice of appeal which does not serve its function of limiting the scope of<page_number>Page 502</page_number> review; (2) appellee did not receive adequate notice of the basis upon which the appeal might be resolved; and (3) the Court of Appeals cannot invoke N.C.R.App.P. 2 as a means of addressing issues not raised by an appellant.</block_quote> Judge WYNN concurring in the result.

<bold>Contracts — change — proposal specifications</bold> <bold>as estimates — no breach of good faith or implied</bold> <bold>warranty</bold> <block_quote> A summary judgment for defendant was affirmed in a breach of contract action which arose when defendant reduced the distance a road was to be resurfaced, milled, and repainted under<page_number>Page 571</page_number> this contract because of overlap with another contract. This change undermined defendant's reliance on specifications in the bid proposal, particularly the amount of reclaimed asphalt pavement the project would generate, and reduced its profit. However, the contract stated that the amount of milling and resurfacing were subject to change as the project progressed, and contract provisions concerning changes were not applicable. Claims of breach of good faith and breach of defendant's implied warranty that plans and specifications were accurate were not argued or supported in the brief, or were without merit.</block_quote>

<bold>1. Pharmacists — misfilling of prescription</bold> <bold>— failure to instruct on peculiar susceptibility</bold> <block_quote> The trial court erred in a negligence case arising out of defendant pharmacist's misfilling of a prescription by failing to instruct the jury on the peculiar susceptibility of plaintiff, and plaintiff is entitled to a new trial, because: (1) there was evidence at trial that an ordinary person would have been injured in the form of the normal toxicity effect of the pertinent drug such as vomiting, nausea, and slowed heart rate; (2) there was evidence that plaintiff's heart damage and stroke were caused by a hyper-sensitive drug reaction to the pertinent drug; (3) the jury sent a note during deliberations evidencing that the jury was confused by the instructions given by the judge; (4) there were allusions throughout the trial to a hypersensitive drug reaction of plaintiff, yet the jury was in no way instructed on what to do with this evidence; and (5) plaintiff requested a jury instruction on peculiar susceptibility while defendants requested one as well in the language<page_number>Page 727</page_number> of N.C.P.I. Civ. 102.20, and given the incomplete state of the record, through no fault of appellant, it cannot be said that plaintiff waived his objection and failed to preserve any error for appeal.</block_quote> <bold>2. Witnesses — qualifications — expert</bold> <bold>testimony</bold> <block_quote> The trial court did not abuse its discretion in a negligence case arising out of the misfilling of a prescription by excluding a doctor's opinion on causation, because: (1) the doctor admitted that he was not an expert in the area in which he was testifying and further admitted that he came to have his opinion solely by reading the opinion of another expert in the field; and (2) the exclusion was harmless where the same opinion was elicited from several other experts throughout the trial.</block_quote> <bold>3. Appeal and Error — mootness — proper notice</bold> <bold>— new trial</bold> <block_quote> Although plaintiff contends the trial court erred in a negligence case arising out of the misfilling of a prescription by excluding the expert opinion as to loss of future wages and failing to exclude the testimony of defendants' experts where proper notice was not given pursuant to the order issued by the court, this issue is moot where notice can be properly given at a new trial granted on other grounds.</block_quote>

<bold>1. Evidence — hearsay — business records</bold> <bold>exception — laboratory report</bold> <block_quote> The trial court did not commit plain error in a first-degree rape of a child under the age of thirteen case by allowing the State to introduce as substantive evidence the results of a laboratory report without presenting the maker of the report for cross-examination and confrontation where the laboratory report confirmed that defendant tested positive for genital herpes and the child had also tested positive for genital herpes because the testimony concerning the laboratory report fell within the business records exception under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(6) since, although the test was performed after defendant had been arrested, it was performed before defendant was indicted, and there was no evidence that anyone at the laboratory either had<page_number>Page 734</page_number> any knowledge about the criminal prosecution or had any motive to distort the results of the laboratory report.</block_quote> <bold>2. Constitutional Law — right of confrontation</bold> <bold>— testimonial laboratory report — harmless error</bold> <block_quote> Even if admission of a laboratory report confirming that defendant tested positive for genital herpes constituted testimonial evidence that violated defendant's right of confrontation under <italic>Crawford v. Washington</italic>, 541 U.S. (2004), in a prosecution for first-degree rape of a child, this error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant's guilt.</block_quote>