Volume 177 — North Carolina Court of Appeals Reports

<bold>1. Appeal and Error — preservation of issues</bold> <bold>— appeal from board to superior court — sufficiency</bold> <bold>of findings and conclusions raised</bold> <block_quote> An assignment of error was properly preserved for review where respondent filed in superior court a petition for judicial review of a decision of the North Carolina Appraisal Board revoking her certification as a real estate appraiser. Although the State asserts that the issue of permanent revocation was not raised in respondent's petition, an appeal from a final judgment may present the question of whether the judgment is supported by the findings and conclusions.</block_quote> <bold>2. Occupations — real estate appraisal board —</bold> <bold>sanctions — findings and conclusions</bold> <block_quote> The plain language of N.C.G.S. § <cross_reference>93E-1-12</cross_reference> is clear and does not require the North Carolina Appraisal Board to specifically make findings of fact and conclusions of law to support a particular penalty or sanction against a real estate appraiser.</block_quote><page_number>Page 34</page_number> <bold>3. Occupations — real estate appraisal board —</bold> <bold>power to permanently revoke certification</bold> <block_quote> The plain and ordinary meaning of "revoke" and "suspend" in N.C.G.S. § <cross_reference>93E-1-12</cross_reference> shows a legislative intent to give the North Carolina Appraisal Board the power to permanently revoke a real estate appraiser's certification.</block_quote> <bold>4. Real Estate — appraisal — standards violated</bold> <bold>— findings sufficient</bold> <block_quote> Sufficient findings supported the North Carolina Appraisal Board's conclusion that its standards were violated by a real estate appraiser in making misleading reports, omitting essential information, and not indicating hypothetical conditions in her report. Although there was a clerical error in identifying one of the standards, that error was harmless.</block_quote> <bold>5. Real Estate — appraisal — communication in</bold> <bold>fraudulent or misleading manner</bold> <block_quote> Findings by the North Carolina Appraisal Board supported the conclusion that real estate appraisal results were communicated in a fraudulent or misleading manner. Despite respondent's argument that findings of intent to deceive are required, the Board's ethics rule is violated when the appraiser communicates the results in a fraudulent or misleading manner.</block_quote> <bold>6. Appeal and Error — issue first raised on appeal</bold> <bold>— not heard</bold> <block_quote> An argument concerning the sufficiency of the North Carolina Appraisal Board's notice of alleged violations was dismissed where the issue was raised for the first time on appeal.</block_quote>

<bold>1. Immunity; Nurses — sovereign immunity —</bold> <bold>Board of Nursing — wrongful termination</bold> <block_quote> The trial court did not err by dismissing plaintiff's complaint against the N.C. Board of Nursing (Board) for wrongful termination on the basis of sovereign immunity because the legislative enactment, governmental appointment of members to defendant Board, and public purpose performed by the Board make the Board an agency of the state entitled to the defense of sovereign immunity.</block_quote> <bold>2. Appeal and Error — preservation of issues —</bold> <bold>failure to make assignment of error in brief</bold> <block_quote> Although plaintiff contends the trial court erred by relying on documentation submitted by defendant Board of Nursing (Board) in determining whether it is a state agency, this assignment of error is dismissed because: (1) this argument does not relate to plaintiff's assignments of error, and thus, is not a matter properly before the Court of Appeals; and (2) this assignment of error is irrelevant when the Court of Appeals has already determined that the Board is a state agency solely by examining the statutes.</block_quote> <bold>3. Appeal and Error — preservation of issues —</bold> <bold>failure to raise issue</bold> <block_quote> Although the dissent contends that plaintiff's complaint for wrongful termination states a claim for relief under N.C.G.S. § <cross_reference>9-32</cross_reference> which would waive sovereign immunity, this issue is not reached because it was never raised by the parties or addressed<page_number>Page 46</page_number> by the trial court, and plaintiff failed to allege in her complaint that sovereign immunity had been waived.</block_quote> <bold>4. Appeal and Error — preservation of issues —</bold> <bold>failure to state legal basis</bold> <block_quote> Although plaintiff contends the trial court erred by failing to hear or consider plaintiff's other arguments regarding issues related to the Board of Nursing's motion to dismiss, this assignment of error is dismissed because plaintiff failed to state the legal basis upon which the error was assigned as required by N.C. R. App. P. 10(c)(1).</block_quote> Judge WYNN concurring in part and dissenting in part.

<bold>1. Search and Seizure — lawful detention — use</bold> <bold>of drug-sniffing dog around exterior of vehicle</bold> <block_quote> Once the lawfulness of a person's detention is established, including to verify driving privileges at a license checkpoint or a stop for a traffic violation, officers need no additional assessment under the Fourth Amendment before walking a drug-sniffing dog around the exterior of that individual's vehicle.</block_quote> <bold>2. Criminal Law; Search and Seizure — motion to</bold> <bold>suppress — drugs — null and void order entered out</bold> <bold>of county, out of term, and out of session</bold> <block_quote> The trial court erred in a drug case by denying defendant's motion to suppress, and the case is remanded for a new suppression hearing, because the order denying her motion to suppress was null and void since it was entered out of county, out of term, and out of session. Defendant's agreement to the trial court's request to take the motion under advisement is not the same as consenting to the order being entered out of term, and defendant's failure to object does not affect the nullity of an order entered out of term and out of session.</block_quote>

<bold>1. Termination of Parental Rights — notice —</bold> <bold>objection waived by appearance</bold> <block_quote> Respondent's appearance with counsel at her termination of parental rights hearing waived any objection to improper notice.</block_quote> <bold>2. Evidence — termination of parental rights —</bold> <bold>parent's mental health records</bold> <block_quote> The admission of respondent's mental health records at her termination of parental rights hearing was not error where the court ordered production of the records at a permanency planning review hearing, respondent did not file a motion in limine or request an in camera review, and she entered only a general objection when the records were tendered into evidence.</block_quote> <bold>3. Termination of Parental Rights — guardian ad litem</bold> <bold>for parent — no allegation of dependency — not</bold> <bold>required at adjudicatory hearing</bold> <block_quote> Appointment of a guardian ad litem was not required by N.C.G.S. § <cross_reference>7B-1101</cross_reference> (amendment not yet applicable) for a mother facing termination of her parental rights where the motion to terminate did not allege that the children were dependent. The argument that a guardian ad litem was required for the adjudication proceeding has been rejected.</block_quote> <bold>4. Termination of Parental Rights — wilfully leaving</bold> <bold>children in foster care — findings not sufficient</bold> <block_quote> In the termination of a father's parental rights, the findings were not adequate to support the conclusion that the father had wilfully left the children in foster care for more than 12 months without reasonable progress.</block_quote>

<bold>1. Search and Seizure — warrant — false</bold> <bold>statements — sufficiency of unchallenged</bold> <bold>statements</bold> <block_quote> The unchallenged statements in a search warrant were sufficient to support a conclusion of probable cause where defendant alleged that some statements in the affidavit were false.</block_quote> <bold>2. Evidence — hearsay — excited utterance</bold> <bold>— seizure of defendant's girlfriend</bold> <block_quote> A hearsay statement by a cocaine defendant's girlfriend that "we gots to be more careful" was properly admitted under the excited utterance exception. The statement occurred when she arrived home, was seized by police in her front yard, and led handcuffed into her own residence. She was upset and shaking before the statement and burst into tears immediately afterwards.</block_quote> <bold>3. Evidence — shotgun — found in drug house</bold> <bold>— relevant</bold> <block_quote> A shotgun found in a house in which drugs were found was properly admitted as relevant to charges of possession and trafficking cocaine and a jury could have found the shotgun consistent with the charge of maintaining the dwelling for keeping or selling cocaine. Defendant did not specifically demonstrate unfair prejudice.</block_quote> <bold>4. Confessions and Incriminating Statements — booking</bold> <bold>question — defendant's address — maintaining a</bold> <bold>dwelling for drugs</bold> <block_quote> A booking question about a cocaine defendant's address did not fall within a Miranda exception and defendant's answer was not admissible where the charges against defendant included maintaining a dwelling for the possession or sale of cocaine. There was prejudice because, in the absence of the booking question, there was insufficient evidence of the charge.</block_quote> <bold>5. Drugs — possession of cocaine — sufficiency</bold> <bold>of evidence</bold> <block_quote> There was sufficient evidence for constructive possession of cocaine where defendant admitted the drugs were his, there was sufficient evidence of non-exclusive possession of the premises, a large amount of individually wrapped cocaine was found in a<page_number>Page 166</page_number> room adjacent to the room in which defendant was found swallowing similar plastic bags, defendant had a white residue around his mouth, and defendant possessed a scanner.</block_quote>

<bold>1. Child Support, Custody, and Visitation — custody</bold> <bold>— jurisdiction</bold> <block_quote> The trial court did not erred by concluding that it had jurisdiction to review a child custody and placement case, because: (1) our Supreme Court has already rejected respondent father's argument on appeal that under N.C.G.S. § <cross_reference>7B-906</cross_reference>(d) once DSS ceased to have custody and the father was given physical custody by the May order, the court no longer had jurisdiction to conduct the statutory periodic hearings; (2) in the context of the Juvenile Code, once the court obtains jurisdiction over a juvenile, that jurisdiction shall continue until terminated by order of the court or until the juvenile reaches the age of eighteen years or is otherwise emancipated; and (3) in this case, prior to the hearing in August, no order had been reached closing the case and the child had not yet reached the age of eighteen.</block_quote> <bold>2. Child Support, Custody, and Visitation — custody</bold> <bold>— in camera interview of child — informal</bold> <bold>acquiescence</bold> <block_quote> The trial court did not err in a child custody case by interviewing the minor child with her guardian ad litem outside the presence of the parties, because: (1) if a party had the opportunity to object to an in camera interview of a child and did not do so, the interview is said to have been conducted with that party's informal acquiescence and cannot be the basis for an objection on appeal; and (2) the transcript revealed that the mother and the guardian both consented to the trial court's interview of the child in chambers while the father simply remained silent, and the father's silence in the face of an opportunity to object precludes review of this issue on appeal.</block_quote><page_number>Page 194</page_number> <bold>3. Child Support, Custody, and Visitation — physical</bold> <bold>custody — best interests of child</bold> <block_quote> The trial court erred in a child custody case by concluding in its September order that it was in the child's best interests to return physical custody to the mother while providing for physical placement with the maternal grandfather, and the case is reversed and remanded for further proceedings, because: (1) nothing in N.C.G.S. § <cross_reference>7B-903</cross_reference> permits a court to grant physical custody to a parent, but order physical placement to be with another person; (2) except when custody has been granted to DSS, the statute anticipates that any person with whom the person is placed shall be given custody, even though the Court of Appeals has recently held in the Chapter 50 custody context that approval of physical placement with a grandparent, when physical custody has been granted to a parent, does not grant the grandparent any custodial rights; (3) the disposition ordered is inconsistent with the concept of physical custody when the law uses the phrase to refer to the rights and obligations of the person with whom the child resides whereas the trial court purported to grant physical custody to a parent who does not reside with the child; (4) the trial court's findings of fact do not support its conclusion that physical custody should be awarded to the mother; (5) prior to returning a child to the custody of a parent from whose custody the child was originally taken, a trial court must find that the child will receive from that parent proper care and supervision in a safe home; and (6) it appears from the transcript that the principal basis for the change in custody was the fact that the father was unmarried, and such reasoning was explicitly rejected by the United States Supreme Court in 1972.</block_quote>

<bold>1. Public Officers and Employees — dismissal of</bold> <bold>state employee — personal misconduct — final</bold> <bold>agency decision</bold> <block_quote> The trial court did not err in a case involving the dismissal of a state employee for personal misconduct by determining that the ALJ's recommended decision became the final decision of the State Personnel Commission under N.C.G.S. § <cross_reference>150B-44</cross_reference>, because:<page_number>Page 216</page_number> (1) after failing to reach a majority vote during its 20 February 2003 meeting, the Commission issued a Memorandum of Consideration on 1 April 2003, and absent any findings of fact or conclusions of law, the Memorandum of Consideration cannot be considered a final decision under N.C.G.S. § <cross_reference>150B-36</cross_reference>(b); (2) in order to protect petitioner dismissed employee from unreasonable delay, N.C.G.S. § <cross_reference>150B-44</cross_reference> provided petitioner the remedy of making the ALJ's recommended decision the final decision of the agency so the administrative appeals process could continue; and (3) this situation, in which an administrative agency failed to issue a final decision within the statutorily prescribed period, is the situation N.C.G.S. § <cross_reference>150B-44</cross_reference> was intended to remedy.</block_quote> <bold>2. Administrative Law — whole record review —</bold> <bold>de novo review — dismissal of state employee</bold> <block_quote> The trial court did not err in a case involving the dismissal of a state employee for personal misconduct by using the whole record standard of review instead of reviewing the matter de novo, because: (1) in cases where petitioner contends the agency decision was not supported by substantial evidence, the whole record test is the proper standard of review, and the first ground for relief in his petition stated that the ALJ's findings of fact and conclusions of law were not supported by evidence in the record; (2) as to petitioner's second ground for relief, the trial court properly employed a de novo review of the question of the application of N.C.G.S. § <cross_reference>150B-44</cross_reference>; and (3) the trial court's erroneous application of the standard of review would not automatically necessitate remand, provided the appellate court can reasonably determine from the record whether the petitioner's asserted grounds for challenging the agency's final decision warrant reversal or modification of the decision under the applicable provisions of N.C.G.S. § <cross_reference>150B-51</cross_reference>(b), and the Court of Appeals' de novo review of the issue revealed no error.</block_quote> <bold>3. Public Officers and Employees — dismissal of state</bold> <bold>employee — just cause</bold> <block_quote> A whole record review revealed that the trial court did not err by determining there was sufficient evidence to support the ALJ's findings and conclusions justifying petitioner state employee's dismissal for just cause, because: (1) the State Personnel Act permits disciplinary action against career state employees for just cause which may consist of unacceptable personal conduct; (2) petitioner's denial of knowledge of the statement of understanding<page_number>Page 217</page_number> was not credible when he was a computer security liaison for DOT for ten years, he signed the internet policy which explicitly referenced the statement of understanding, and he was advised by a DOT computer systems administrator on several occasions that he needed to obtain permission to install software; (3) the ALJ explained her disbelief of petitioner based on his educational background, intellectual abilities, and on-the-job computer experience, and it is within the ALJ's discretion to analyze the credibility of witnesses and to resolve conflicting testimony; (4) petitioner's own testimony supported the finding that he did not ask or get permission to install the software discovered on his computer; and (5) evidence supported the finding that petitioner's installation of servers and protocols breached DOT's network security and exposed DOT's systems to invasion by external computer hackers.</block_quote>

<bold>1. Unfair Trade Practices — allegations —</bold> <bold>sufficiency to state claim</bold> <block_quote> Plaintiffs' allegations stated a claim for unfair and deceptive trade practices under N.C.G.S. § <cross_reference>58-63-15</cross_reference>(11)(b),(c),(e) and (f) in defendant's handling of an insurance claim, and the trial court erred by granting defendant's Rule 12(b)(6) motion to dismiss.</block_quote> <bold>2. Unfair Trade Practices — statute of limitations</bold> <bold>— underlying insurance claim</bold> <block_quote> The trial court erred by granting defendant's Rule 12(b)(6) motion to dismiss an unfair and deceptive practices claim with the statement that it would be "bad policy" to allow an unfair practices claim to proceed when the underlying insurance claim was barred by the statute of limitations. The General Assembly is the policy making body of the State.</block_quote> <bold>3. Civil Procedure — Rule 12(b)(6) motion to dismiss</bold> <bold>— standard applied by trial court</bold> <block_quote> The trial court applied the correct standard of review when granting defendant's motion for a Rule 12(b)(6) dismissal where the court's reference to the "forecast of evidence" referred to the allegations in the complaint; the court stated that it only considered the pleadings, motion, citations of law, and arguments of counsel; and plaintiffs have not established that the trial court relied upon any other information in ruling on defendant's motion.</block_quote>

<bold>Attorneys — lease payments held in trust</bold> <bold>account-disbursement — duty to client only</bold> <block_quote> Summary judgment was correctly granted for defendant-attorneys who had disbursed to their clients (the Timmonses) lease payments by plaintiffs where the lease included an option to purchase and the property was eventually lost in a foreclosure. Defendants' fiduciary duty was to their clients, the Timmonses, not to plaintiffs, and defendants were obligated to disburse the funds when requested. Moreover, defendants were also obligated not to disclose the Timmonses' confidential information to plaintiffs.</block_quote><page_number>Page 259</page_number>

<bold>1. Jurisdiction — evidentiary hearing — more</bold> <bold>than prima facie showing required — preponderance of</bold> <bold>evidence</bold> <block_quote> The trial court did not err by requiring more than a prima facie showing of personal jurisdiction where the case had moved beyond the procedural standpoint of competing affidavits to an evidentiary hearing. The trial court was required to act as fact finder and decide the question of personal jurisdiction by the preponderance of the evidence.</block_quote> <bold>2. Appeal and Error — hearing to determine</bold> <bold>jurisdiction — findings supported by competent evidence</bold> <bold>— binding on appeal</bold> <block_quote> The trial court's findings were binding in a hearing to determine the existence of personal jurisdiction where those findings were supported by competent record evidence. The appellate court does not weigh the evidence or review questions of the credibility of witnesses.</block_quote> <bold>3. Evidence — affidavits — personal</bold> <bold>knowledge</bold> <block_quote> The trial court did not err in a hearing to determine personal jurisdiction by considering only the allegations in an affidavit that were based on personal knowledge.</block_quote> <bold>4. Jurisdiction — personal — insufficient</bold> <bold>contacts — inconvenient for witnesses</bold> <block_quote> Due process would not be satisfied by requiring defendant to litigate claims in North Carolina where defendant's telephone conversations from Europe and his infrequent visits to North Carolina were not continuous and systematic contacts such that general jurisdiction would apply, and the contacts were not sufficiently related to the allegations against defendant for specific jurisdiction. Moreover, a number of witnesses were residents of Europe; travel would be especially difficult for defendant because his wife suffered from depression and he was the father of three small children.</block_quote><page_number>Page 315</page_number> <bold>5. Jurisdiction — dismissal for lack of — Rule</bold> <bold>60(b) motion to set aside denied</bold> <block_quote> The trial court did not abuse its discretion by denying a Rule 60(b) motion to set aside an order granting a motion to dismiss for lack of jurisdiction.</block_quote>

<bold>1. Evidence — cross-examination — right to</bold> <bold>remain silent</bold> <block_quote> The prosecution was not improperly permitted to cross-examine defendant in a voluntary manslaughter case even though defendant contends it violated his right to remain silent, because: (1) assuming defendant's objection properly preserved for review a challenge to the pertinent questions and answers, it is not apparent that the State was commenting on post-Miranda silence when the testimony is reviewed in context; (2) if the questioning related to defendant's conversation with a deputy on the day of the shooting, post-Miranda silence was not implicated; and (3) defense counsel failed to object to the initial questions and any later objection regarding the State's initial questions was not preserved for appellate review.</block_quote> <bold>2. Criminal Law — prosecutor's argument —</bold> <bold>defendant's right to remain silent</bold> <block_quote> The trial court did not err in a voluntary manslaughter case by failing to intervene ex mero motu during certain portions of the State's closing argument where defendant contends the State improperly referred to defendant's exercise of the right to remain silent and asked the jury to discount defendant's testimony, because: (1) contrary to defendant's assertion, the State was referring to the testimony of his brother and his girlfriend's failure to support defendant's version of the facts; (2) taken in context, the pertinent portion of the closing argument does not necessarily refer to any post-Miranda silence by defendant, but to the refusal of some eyewitnesses and the willingness of another to give statements to the investigators on the day of the shooting; and (3) the other pertinent portion of the closing argument was supported by the cross-examination of defendant's brother, the direct examination of the investigating detective, and the earlier argument regarding defendant's brother and his girlfriend.</block_quote> <bold>3. Homicide — instruction — voluntary</bold> <bold>manslaughter</bold> <block_quote> The trial court did not commit plain error by instructing the jury on voluntary manslaughter in addition to first-degree murder, second-degree murder, self-defense, and defense of others, because:<page_number>Page 354</page_number> (1) defendant's own evidence tends to show the elements of imperfect self-defense; and (2) substantial evidence was presented from which a rational trier of fact could find defendant employed excessive force in shooting the victim five times with three shots striking the victim in the back and buttocks while acting in self-defense.</block_quote> <bold>4. Criminal Law — instruction — aggressor</bold> <bold>— collateral estoppel — double jeopardy</bold> <block_quote> The trial court did not commit plain error in a voluntary manslaughter case by giving the jury an aggressor instruction where an earlier jury in defendant's first trial allegedly previously determined he was not the aggressor, because: (1) the doctrine of collateral estoppel did not apply, nor did jeopardy attach, when no unanimous verdict was reached by the earlier jury about whether defendant was the aggressor; and (2) the note from the prior jury stating it had determined that defendant was not the aggressor merely demonstrated a moment in time during the jury deliberations.</block_quote>

<bold>1. Appeal and Error — appealability —</bold> <bold>discovery order — some documents protected, some not</bold> <bold>— immediately appealable</bold> <block_quote> The immediate appeal of a trial court discovery order protecting some but not all of the documents in question affected a substantial right that would otherwise be lost, and the order was reviewed. However, the order will be upset only by a showing that the trial court abused its discretion.</block_quote> <bold>2. Discovery — emails — attorney-client</bold> <bold>privilege — inapplicability</bold> <block_quote> Emails exchanged between bank officials were not protected from discovery by the attorney-client privilege where they suggested a purely business matter, were not for legal advice, and the attorneys were copied merely for information. A document without privilege in the hands of the client does not become privileged merely because it is handed to the attorney.</block_quote> <bold>3. Discovery — emails — attorney-client</bold> <bold>privilege — applicability</bold> <block_quote> The trial court did not abuse its discretion by finding that certain emails were protected from discovery by the attorney-client privilege where the attorney-client relationship was firmly established at the time the emails were sent; the emails were apparently exchanged in confidence; they related to discovery matters about which the attorneys were being consulted; and they were exchanged in the course of litigation and arbitration.</block_quote><page_number>Page 407</page_number> <bold>4. Discovery — attorney-client privilege —</bold> <bold>applicability</bold> <block_quote> The trial court did not abuse its discretion by ruling that an email from counsel discussing revisions to a draft resolution and an email from in-house counsel were protected from discovery by the attorney-client privilege and that an email from attorneys requesting a meeting and an email from defendant shared with attorneys and nonattorneys were not so protected.</block_quote> <bold>5. Evidence — attorney-client privilege — draft</bold> <bold>document — pending litigation</bold> <block_quote> A draft document prepared in relation to pending litigation but not as a confidential communication between attorney and client was not protected by attorney-client privilege.</block_quote> <bold>6. Evidence — emails — discovery — work</bold> <bold>product doctrine</bold> <block_quote> The trial court did not abuse its discretion by determining that certain emails were not shielded from discovery by the work product doctrine. A review of the text of the emails yields a wholly reasonable determination that the intent of the exchange was not in anticipation of litigation. Business emails which are copied to an attorney are not protected by the work product doctrine solely due to the fact that they were sent while the business was contemplating litigation.</block_quote> <bold>7. Discovery — emails — work product</bold> <bold>doctrine</bold> <block_quote> The trial court did not abuse its discretion in its determination of whether certain emails were protected by the work product doctrine and were discoverable. Plaintiff's email stating her inclination not to sign a document was not drafted by an attorney, nor was it necessarily prepared in anticipation of litigation. However, the draft declaration defendant was asked to sign was prepared by defendant's attorneys in anticipation of litigation, falls squarely within the definition of attorney work product, and is protected.</block_quote> <bold>8. Evidence — work product doctrine — exception</bold> <bold>— substantial need and evidence unavailable elsewhere</bold> <block_quote> The trial court did not abuse its discretion by applying an exception to the work product doctrine to a document which plaintiff refused to sign (and for which she was allegedly fired) where plaintiff adequately demonstrated a substantial need and inability to obtain the information elsewhere.</block_quote><page_number>Page 408</page_number> <bold>9. Discovery — depositions allowed — further</bold> <bold>objections allowed</bold> <block_quote> The trial court did not abuse its discretion by allowing plaintiff to depose individuals in connection with discoverable documents, while allowing defendant to raise further attorney-client and work-product objections.</block_quote> <bold>10. Appeal and Error — preservation of issues —</bold> <bold>broadside assignment of error — dismissed</bold> <block_quote> A single broadside assignment of error which encompassed at least three cognizable and specific legal reasons for error was dismissed.</block_quote>

<bold>Termination of Parental Rights — lack of</bold> <bold>jurisdiction — children not in custody of DSS</bold> <bold>— children not residing in or found in North</bold> <bold>Carolina</bold> <block_quote> The trial court lacked jurisdiction in a termination of parental rights case, and the trial court's order is vacated, because: (1) the children were not in custody of the Department of Social Services at the time the petition to terminate respondent mother's parental rights was filed; and (2) the children were not residing in or found in North Carolina at that time as required by N.C.G.S. § <cross_reference>7B-1101</cross_reference>.</block_quote>

<bold>1. Motor Vehicles — driving while impaired —</bold> <bold>public vehicular area — no private road signs</bold> <block_quote> A road was open to vehicular traffic within the meaning of N.C.G.S. § <cross_reference>20-4.01</cross_reference>(32)(c) and was a public vehicular area where defendant and an officer testified that they drove the road and<page_number>Page 453</page_number> that there were no gates or signs indicating that it was private. The trial court did not err by denying defendant's motion to dismiss a charge of driving while impaired.</block_quote> <bold>2. Motor Vehicles — driving while impaired —</bold> <bold>public vehicular area — road within subdivision</bold> <block_quote> A road on which a DWI defendant was stopped was within or leading to a subdivision (and so was a public vehicular area) where there were six homes on the street, with five or six different owners, each with a driveway leading off the road.</block_quote> <bold>3. Criminal Law — discovery — DWI case</bold> <block_quote> The trial court did not err by denying a DWI defendant's pre-trial motion to compel discovery from the State of written protocols regarding Intoxylizer operation, calibration, and measures. No statutory right to discovery exists for criminal cases originating in district court and there is no constitutional right to discovery other than for exculpatory evidence.</block_quote>

<bold>1. Unemployment Compensation — insurance benefits</bold> <bold>— misstatement in finding of fact</bold> <block_quote> The trial court did not err in an unemployment insurance benefits case by allegedly rewriting or editing an appeals referee's finding of fact in violation of N.C.G.S. § <cross_reference>96-15</cross_reference>(i), because: (1) the trial judge did not find additional or different facts, but simply corrected a misstatement of the word "all" by the appeals referee; and (2) the misstatement was of no consequence to the ultimate determination that claimant's discharge from employment was not due to substantial fault or misconduct in connection with the work.</block_quote><page_number>Page 510</page_number> <bold>2. Unemployment Compensation — insurance benefits</bold> <bold>— sufficiency of findings of fact</bold> <block_quote> The trial court did not err in an unemployment insurance benefits case by finding there was competent evidence to support the Employment Security Commission's findings that claimant's absenteeism from work was due to her medical condition, because: (1) contrary to petitioner employer's assertion, N.C.G.S. § <cross_reference>96-14</cross_reference>(1) does not apply to a case where claimant's employment was terminated by employer, and instead N.C.G.S. § <cross_reference>96-14</cross_reference>(2) applies; (2) there is no statutory requirement for medical testimony to support a medical basis for work absences, and a claimant's testimony has been held to be sufficient evidence; and (3) while the evidence supporting the appeals referee's findings is very sparse, it is still competent evidence.</block_quote> <bold>3. Unemployment Compensation — insurance benefits</bold> <bold>— misconduct — excessive absenteeism —</bold> <bold>substantial fault — reasonable control</bold> <block_quote> The trial court did not err by concluding that respondent former employee was not disqualified from receiving unemployment insurance benefits even though petitioner employer contends claimant's excessive absenteeism constituted misconduct as a matter of law under N.C.G.S. § <cross_reference>96-14</cross_reference>(2) or rose to the level of substantial fault, because: (1) the employee's violation of a work rule will not rise to the level of misconduct if the evidence shows that the employee's actions were reasonable and were taken with good cause; (2) claimant had a long history of emotional and behavioral disorders for which she took prescription medication and was under a doctor's care; (3) claimant's absences from work were due to her medical condition, and while she did not give her employer intimate details about her medical condition, she did provide a doctor's excuses for the time she missed from work; and (4) claimant's actions do not qualify as substantial fault as a matter of law when an employee does not have reasonable control over failing to attend work based on serious physical or mental illness, and claimant's reasons regarding her decision to stop taking her medications was a credibility determination left for the Employment Security Commission instead of the Court of Appeals.</block_quote>

<bold>1. Constitutional Law — effective assistance of</bold> <bold>counsel — trial strategy — telling jury</bold> <bold>defendant repeatedly lied to his attorneys</bold> <block_quote> Defendant did not receive ineffective assistance of counsel in a first-degree murder case based on his attorney telling the jury that defendant had repeatedly lied to his attorneys, because: (1) counsel's decision to address defendant's repeated lies was a prudent step in pulling the sting from damaging evidence; (2) any<page_number>Page 521</page_number> prosecution of defendant would include his lies as incriminating evidence, including their use as evidence against his truthfulness; (3) defense counsel was attempting to turn defendant's lies into a favorable fact by showing that he was merely guilty of a lesser-included crime without premeditation or deliberation; (4) when defendant took the stand and admitted, in both direct and cross-examination, that he had lied to his attorneys, defendant himself participated in this defense strategy and thus cannot complain that defense counsel utilized the strategy in closing argument; and (5) although it is possible other counsel may have proceeded with a different strategy, it cannot be concluded that the strategy employed by defendant's counsel was unreasonable or deficient.</block_quote> <bold>2. Evidence — privileged communications —</bold> <bold>attorney-client privilege — waiver</bold> <block_quote> Although defendant contends defense counsel breached the attorney-client privilege in a first-degree murder case by telling the jury that defendant had lied to his attorneys, he waived any such privilege because he admitted he lied to his attorneys in both his direct and cross-examination at trial.</block_quote> <bold>3. Criminal Law — prosecutor's argument —</bold> <bold>alleged improper shift of burden of proof to defendant</bold> <block_quote> The trial court did not abuse its discretion in a first-degree murder case by concluding that the prosecutor did not improperly shift the burden of proof to defendant during closing arguments, because: (1) the determination of whether the remarks were improper during closing arguments is not reached if the trial court's correct jury instructions on the law cured any mistakes made in the prosecutor's closing argument; and (2) when instructing the jury on first-degree murder, second-degree murder, and voluntary manslaughter, the trial court repeatedly told the jury that the State bore the burden of proof to prove each element necessary for conviction of the crime charged and each lesser offense.</block_quote>

<bold>1. Sexual Offenses — first-degree — motion to</bold> <bold>dismiss — sufficiency of evidence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of first-degree sexual offense under N.C.G.S. § <cross_reference>14-27.4</cross_reference>(a)(2)(a), because: (1) in the light most favorable to the State, the seventy-six-year-old victim testified that defendant penetrated her anally; (2) the emergency room doctor testified that it was possible for a person to be penetrated anally without showing signs of trauma due to the physiology of the anus; (3) a victim may not recall anal penetration due to the fear experienced during such an assault; and (4) even though the victim presented conflicting testimony regarding whether she recalled anal penetration, there was substantial evidence that defendant engaged in a sexual act of anal penetration with the victim, against the victim's will, and by employing the knife as a dangerous or deadly weapon.</block_quote> <bold>2. Kidnapping — first-degree — asportation of</bold> <bold>victim — motion to dismiss — sufficiency of</bold> <bold>evidence</bold> <block_quote> The trial court erred by denying defendant's motion to dismiss the charge of first-degree kidnapping because the confinement, restraint or removal of the victim within her home constituted an inherent element of the felonies of rape and armed robbery with which defendant was also charged.</block_quote> <bold>3. Rape — first-degree — instruction —</bold> <bold>knife as a dangerous weapon</bold> <block_quote> The trial court did not commit plain error by instructing the jury that a knife is a dangerous or deadly weapon as a matter of law for a first-degree rape charge, because: (1) in light of the entire record, particularly the victim's testimony that she knew it<page_number>Page 532</page_number> was a knife that defendant took from his pocket, that she asked him not to hurt her upon seeing the knife, and that she was scared, the jury likely would have found that the victim reasonably believed the knife to be a dangerous or deadly weapon; and (2) even if the trial court's instruction was erroneous, it did not have a probable impact on the jury's determination of guilt.</block_quote>

<bold>Process and Service — service of process —</bold> <bold>divorce — motion to dismiss — findings</bold> <bold>requested</bold> <block_quote> The trial court erred in a divorce action by not making proper findings and conclusions concerning plaintiff's attempted service of process upon defendant after defendant moved to dismiss for lack of personal jurisdiction and specifically requested findings and conclusions.</block_quote>

<bold>Probation and Parole — modifications after</bold> <bold>expiration of original term — no pending violation</bold> <bold>allegations — no jurisdiction</bold> <block_quote> The trial court lacked jurisdiction to revoke defendant's probation on 7 April 2005 where the five year term of probation had begun on 24 September 1995 and had expired on 23 September 2000 without pending allegations of violations. The court lacked jurisdiction to modify the probation judgment (as it did several times) after that date.</block_quote>

<bold>Attorneys — malpractice in claim against doctor</bold> <bold>— Rule 9(j) not applicable to legal malpractice</bold> <bold>claim</bold> <block_quote> The trial court erred by dismissing plaintiffs' legal malpractice action against defendants for failure of the complaint to include the certification required by to N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 9(j). The clear and unambiguous language of the statute and precedents establish that Rule 9(j) applies solely to medical malpractice actions and not to legal malpractice actions.</block_quote> Judge BRYANT dissenting.

<bold>1. Criminal Law — prosecutor's argument —</bold> <bold>reference to World Trade Center attack</bold> <block_quote> The trial court did not abuse its discretion in a first-degree murder case by failing to intervene ex mero motu during the State's closing argument that defendant contends included prejudicial matters outside the record, because: (1) the context for the prosecutor's comments was to explain that defendant's lack of a specific<page_number>Page 682</page_number> motive could not absolve him of responsibility for the criminal act; (2) the prosecutor's reference to the World Trade Center attack was a reminder to the jury there is not always an explanation for why criminal actions occur, and was not an attempt to somehow equate defendant's actions with those of terrorists on 11 September 2001; and (3) argument of counsel must be left largely to the control and discretion of the presiding judge, and counsel is accorded wide latitude in the argument of hotly contested cases.</block_quote> <bold>2. Criminal Law — prosecutor's argument —</bold> <bold>doctor's testimony could not impact or influence assessment</bold> <bold>of defendant's premeditation and deliberation</bold> <block_quote> The trial court did not abuse its discretion in a first-degree murder case by failing to sustain defendant's objection to the prosecutor's closing argument that the jury was in a better position to assess defendant's state of mind than the doctor and that the doctor kept talking about terms of psychiatry which did not apply as opposed to legal terms, because: (1) the prosecutor's comments were neither extreme nor calculated to prejudice defendant; (2) the prosecutor apprised the jury that the doctor's testimony could not impact or influence their evaluation of whether defendant had the premeditation and deliberation to murder the victim; (3) the prosecutor's argument was not prejudicial toward defendant but rather an accurate statement regarding the law; and (4) defendant failed to show how the results of the trial would have been different absent such remarks.</block_quote> <bold>3. Criminal Law — instructions — medical expert</bold> <bold>cannot testify to legal terms</bold> <block_quote> The trial court did not err in a first-degree murder case by refusing to instruct the jury that a medical expert could not testify to legal terms.</block_quote> <bold>4. Homicide — first-degree murder — requested</bold> <bold>instruction — premeditation and deliberation</bold> <block_quote> The trial court did not err in a first-degree murder case by failing to read the entire jury instruction listing all seven circumstances whereby proof of defendant's premeditation or deliberation could be inferred regarding the unlawful killing of the victim, because: (1) not only did the trial court's actual instruction provide the substance of what defendant requested, but defense counsel declared the desired instruction on infliction of lethal wounds after the victim is felled was inapplicable to the facts of this case; (2) six of<page_number>Page 683</page_number> the seven circumstances listed as being indicative of premeditation and deliberation were given to the jury; (3) so long as the substance of the requested instruction is provided, such instruction is sufficient; and (4) defense counsel admitted both the facts and the evidence did not warrant inclusion of the requested circumstance.</block_quote> <bold>5. Appeal and Error — preservation of issues —</bold> <bold>failure to argue</bold> <block_quote> The remainder of defendant's assignments of error that were not briefed on appeal are deemed abandoned under N.C. R. App. P. 28(b)(6).</block_quote> Judge WYNN concurring in the result.

<bold>Employer and Employee; Wrongful Interference —</bold> <bold>interference with contract — covenant not to compete</bold> <bold>and termination by new employer</bold> <block_quote> Summary judgment for defendant was affirmed in an action for tortious interference with contract where defendant's evidence was that plaintiff worked for defendant before going to work for a competitor (CCA); plaintiff had signed a non-compete agreement with defendant; defendant sought to enforce that agreement and to prevent the loss of trade secrets; a lawsuit was filed; and CCA dismissed plaintiff. Defendant did not demand that plaintiff be fired (only that violations of the agreement cease); defendant threatened to sue but provided CCA with no incentive to fire plaintiff; defendant's intent was only to protect its own interests; and similar cases had resulted in negotiation and settlement rather than termination. Plaintiff provided no evidence to the contrary.</block_quote>

<bold>Administrative Law — final agency decision —</bold> <bold>certificate of need — summary judgment —</bold> <bold>judicial estoppel</bold> <block_quote> A de novo review revealed that the Department of Health and Human Services did not err by granting summary judgment in favor of respondent medical center for its application of a certificate of need (CON) to expand emergency room facilities, because: (1) although summary judgment is never appropriate for an application<page_number>Page 781</page_number> for a CON where two or more applicants conform to the majority of the statutory criteria, respondent was the sole applicant for a non-competitive CON; (2) although petitioner hospital primarily asserts that substantial prejudice to its legal rights may result from continued challenges by respondent to its Huntersville project, our Supreme Court has recently dismissed this challenge as moot on the ground that the facility was completed and fully operational; and (3) judicial estoppel does not bar respondent's legal position in the instant case where petitioner has made no showing of substantial prejudice from the grant of the CON to respondent.</block_quote>