Volume 182 — North Carolina Court of Appeals Reports

<bold>1. Jurisdiction — subject matter — Public Records Law" clemency records</bold> <bold>— meaning of constitutional provision</bold> <block_quote> The trial court did not err by concluding that it had subject matter jurisdiction to determine whether defendant Governor was required to produce, under North Carolina's Public Records Law, records relating to applications for clemency, because: (1) the case does not involve judicial review of the Governor's exercise of clemency power, but instead whether plaintiff is entitled under the Public Records Law to certain clemency records within the possession of the Governor; (2) the issues of this case can only be resolved by construing the meaning of the constitutional provision granting the clemency power to the Governor, N.C. Const. art. <cross_reference>III</cross_reference>, § <cross_reference>5</cross_reference>(<cross_reference>6</cross_reference>); and (3) it is a fundamental responsibility of the courts to determine how the constitution should be construed.</block_quote> <bold>2. Governor; Public Records — clemency records — Public Records Law</bold> <bold>inapplicable</bold> <block_quote> The trial court did not err by dismissing plaintiffs lawsuit under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 12(b)(6) and by refusing to require defendant Governor to produce, under North Carolina's Public Records Law, N.C.G.S. §§ <cross_reference>132-1</cross_reference> through <cross_reference>132-10</cross_reference>, records relating to applications for clemency, because: (1) N.C. Const. art. <cross_reference>III</cross_reference>, § <cross_reference>5</cross_reference>(<cross_reference>6</cross_reference>) carves out a limited area in which the General Assembly may exercise its authority as to clemency relative to the manner<page_number>Page 15</page_number> of applying for pardons, and all other clemency authority rests with the Governor; (2) legislation such as the Public Records Law, which does not specifically reference clemency, cannot be allowed to intrude upon the Governor's clemency authority; and (3) although the Governor's counsel urged the Court of Appeals during oral arguments to conclude that N.C.G.S. § 14746(a)(1) is unconstitutional, a constitutional question will not be addressed unless it was raised and passed upon in the court below.</block_quote>

<bold>1. Divorce — equitable distribution — sufficiency of claim</bold> <block_quote> The pro se defendant's "request" for "equitable distribution" in her counterclaim in a divorce action was sufficient to put plaintiff on notice that defendant was asking the court to equitably distribute the parties' marital and divisible property. The counter-claim did not have to contain a statement that defendant's request applied to the parties' marital assets or property; her claim could not apply to any other type of assets or property.</block_quote> <bold>2. Divorce — equitable distribution — pleading — "request and reserve" —</bold> <bold>not merely a future claim</bold> <block_quote> Defendant's pro se counterclaim "requesting" and "reserving" equitable distribution sufficiently established that she was making a present claim. "Request" connoted a petition or motion to the court; asking to "reserve" that claim did not transform the request into a nullity or render it an indication of intent to file in the future.</block_quote> <bold>3. Divorce — alimony — sufficiency of request — grounds not stated —</bold> <bold>agreement between parties — not sufficient</bold> <block_quote> The trial court properly dismissed a pro se request for alimony which provided no notice of any grounds for alimony. Allegations that plaintiff had agreed to and had been paying certain household bills and debts were not sufficient.</block_quote> <bold>4. Pleadings — denial of amendment — arguments of counsel without</bold> <bold>evidence — no abuse of discretion</bold> <block_quote> The trial court did not abuse its discretion by denying defendant's motion to amend her counterclaim for alimony where she offered only the arguments of counsel (which did not constitute evidence) on equitable estoppel. The sparse assertion that the amendment should have been allowed in the interest of justice offers no reason to conclude that the trial judge abused his discretion in denying the motion.</block_quote>

<bold>1. Environmental Law — sedimentation — size of area</bold> <block_quote> The trial court erred by ruling that the Sedimentation Pollution Control Act (SPCA) applies as a matter of law only to areas of more than an acre, and erred by granting summary judgment for defendants on plaintiff's claim. While sections (3) and (4) of N.C.G.S. § <cross_reference>113A-57</cross_reference> expressly condition their application on activity that disturbs more than one acre, sections (1) and (2) contain no such limitation. If factually appropriate, the SPCA may be applicable regardless of the acreage involved.</block_quote><page_number>Page 122</page_number> <bold>2. Appeal and Error — appealability — partial summary judgment</bold> <block_quote> Plaintiff's appeal from the denial of his motion for partial summary judgment was dismissed as interlocutory where he did not articulate any substantial right that will be lost by delay.</block_quote>

<bold>Sentencing — aggravating factor</bold> — <bold><italic>Blakely</italic></bold><bold> error — not prejudicial</bold> <block_quote> The trial court's <italic>Blakely</italic> error in enhancing defendant's sentence for assault with a deadly weapon inflicting serious injury based upon the trial court's finding without submission to the jury of the aggravating factor that the offense was committed<page_number>Page 134</page_number> for the benefit of a criminal street gang and defendant was not charged with a conspiracy was harmless where the evidence supporting this aggravating factor was overwhelming and uncontradicted.</block_quote>

<bold>1. Homicide — first-degree murder — short-form indictment constitutional</bold> <block_quote> A short form indictment used to charge a defendant with first-degree murder is constitutional.</block_quote> <bold>2. Confessions and Incriminating Statements — public safety exception —</bold> <bold>Miranda warnings not required</bold> <block_quote> The public safety exception to the Miranda rule applied to statements made by defendant in response to an officer's question to defendant at a murder scene, "Is there anyone else in the house, where is she?" where officers were responding to a report of a woman being shot by her husband, the shooter was still on the scene in front of the house when officers arrived, an officer testified that she was not sure whether defendant was armed and she was unaware of the condition of the victim, and the officer asked no other questions of defendant after defendant was secured and other officers gained entry into the house.</block_quote> <bold>3. Evidence — 911 call — nontestimonial evidence</bold> <block_quote> The admission of a murder victim's call in which she stated, in response to the 911 operator's questions, that she was being shot by defendant did not violate defendant's right of confrontation under the <italic>Crawford</italic> decision because the victim's statements were not testimonial when the colloquy between the victim and the 911 operator was not designed to establish a past fact but to describe current circumstances requiring police assistance.</block_quote><page_number>Page 197</page_number> <bold>4. Evidence — hearsay — business records exception — 911 event report</bold> <block_quote> The trial court did not err in a first-degree murder, discharging a weapon into occupied building, and violating a domestic protective order case by admitting into evidence the 911 event report even though defendant contends it was inadmissible hearsay and violated his confrontation rights, because: (1) the event report was admissible as a business record under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(6); and (2) a 911 operator testified that the event report was kept in the ordinary course of business, that all the entries were made while on the 911 call with the victim, and that the operator was present when all entries were made.</block_quote> <bold>5. Evidence — hearsay — business record exception — pass on information</bold> <bold>form used by security guards in victim's neighborhood</bold> <block_quote> The trial court did not err in a first-degree murder, discharging a weapon into occupied building, and violating a domestic protective order case by admitting evidence of the pass on information form used by the security guards in the victim's neighborhood which stated that the victim's husband had been threatening her even though defendant contends it was inadmissible hearsay and violated his confrontation rights, because: (1) the form was properly admitted as a business record under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(6); (2) the chief security guard testified that the form was kept in the ordinary course of business and that he was the custodian of the record; and (3) the statements made by the victim to the security chief, as recorded on the form, were nontestimonial.</block_quote> <bold>6. Evidence — hearsay — existing state of mind exception</bold> <block_quote> The trial court did not err in a first-degree murder, discharging a weapon into occupied building, and violating a domestic protective order case by admitting, during the testimony of the chief security guard, a statement made by the victim that she would be going out of town the following week, because: (1) defendant stated no grounds for his objection; (2) constitutional error will not be considered for the first time on appeal; and (3) the statement was admissible under the N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(3) existing statement of mind exception to the hearsay rule.</block_quote><page_number>Page 198</page_number> <bold>7. Evidence — photographs of homicide victim — illustrative purposes</bold> <block_quote> The trial court did not abuse its discretion in a first-degree murder case by allowing the State to introduce photographs of the victim's body and photographs taken at the victim's autopsy because: (1) photographs of a homicide victim may be introduced even if they are gory, gruesome, horrible, or revolting, so long as they are used for illustrative purposes and their excessive or repetitious use is not aimed solely at arousing the passions of the jury; (2) the photographs were used in the course of testimony from the officers responding to the scene, and from the testimony of the medical examiner; and (3) the State did not offer an excessive number of photographs, and nothing suggested the photographs were offered solely to arouse the passions of the jury.</block_quote> <bold>8. Venue — pro se motion to change — no right for defendant to appear</bold> <bold>both by himself and by counsel</bold> <block_quote> The trial court did not err in a prosecution for first-degree murder and other crimes by refusing to hear defendant's pro se motion to change venue because, having elected for representation by appointed counsel, defendant cannot also file motions on his own behalf or attempt to represent himself.</block_quote> <bold>9. Jury — selection — broadcast of 911 call prior to selection</bold> <block_quote> The trial court did not abuse its discretion in a prosecution for first-degree murder and other crimes by denying defendant's motion to continue based on the broadcast of the victim's 911 call prior to jury selection, because: (1) each juror who served indicated an ability to render a fair verdict based on facts and evidence presented in the courtroom and not from any other source; (2) defendant did not exhaust his peremptory challenges and identified no objectionable juror who sat on his jury; and (3) defendant overemphasized the importance of the 911 call when the State presented dozens of witnesses, gunshot residue was found on defendant's hands, defendant's blood was recovered from the gun, blood recovered from the inside of the house matched only the victim, blood recovered from the outside of the windowsills matched defendant, bullets from the gun found at the scene matched the bullets recovered from the victim's body, and bullet casings were found outside the house.</block_quote><page_number>Page 199</page_number> <bold>10. Indictment and Information — amendment — surname</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the indictments for first-degree murder and firing into an occupied dwelling based on the indictments containing the incorrect name of the victim, or by allowing the State to amend the indictments from "Gail Hewson Tice" to "Gail Tice Hewson" after the State rested its case, because: (1) changes to the surname of a victim are not an amendment for purposes of N.C.G.S. § <cross_reference>15A-923</cross_reference>(e); (2) at no time in the proceeding did defendant indicate any confusion or surprise as to whom defendant was charged with having murdered; and (3) during a pretrial motion made by defendant, he refers to "Gail Hewson, also known as Gail Tice."</block_quote> <bold>11. Homicide — first-degree murder — failure to instruct on manslaughter</bold> <block_quote> The trial court did not err by refusing to instruct the jury on manslaughter as a lesser-included offense of first-degree murder, because: (1) contrary to defendant's assertion, the mere existence of a domestic violence protective order does not permit the inference that defendant acted in the heat of passion; and (2) defendant points to no evidence that would support a jury verdict of manslaughter.</block_quote> <bold>12. Homicide — second-degree murder — failure to instruct on punishment</bold> <block_quote> The trial court did not err in a first-degree murder case by failing to instruct the jury on the penalty for second-degree murder after the jury sent a note to the trial court requesting the information, because: (1) defendant did not choose to exercise his right to inform the jury of the punishment for the possible verdicts; (2) the trial court did not prevent defendant from making any argument regarding punishment; and (3) N.C.G.S. § <cross_reference>7A-97</cross_reference> does not obligate the trial court to inform the jury of applicable punishments, but rather permits a defendant to do so.</block_quote> <bold>13. Firearms and Other Weapons; Homicide — first-degree murder —</bold> <bold>discharging weapon into occupied building — motion to dismiss"</bold> <bold>sufficiency of evidence</bold> <block_quote> The trial court did not err by denying defendant's motions to dismiss the charges of first-degree murder and discharging a weapon into an occupied building at the close of the State's evidence and at the close of all evidence, because the evidence<page_number>Page 200</page_number> showed that: (1) defendant entered the victim's neighborhood and fired multiple shots into her home from outside; (2) defendant was arrested in front of the house eight minutes after the victim placed a 911 call; and (3) bullets from defendant's gun matched those found inside the house and recovered from the victim's body.</block_quote>

<bold>1. Termination of Parental Rights — neglect — incarcerated father —</bold> <bold>findings not supported by evidence</bold> <block_quote> The trial court erred by terminating the parental rights of a father on the ground of neglect where there was undisputed evidence that he was consistent in writing to the children, although he was on probation and then incarcerated, and respondent married the mother, which legitimated the child born out of wedlock. Significant portions of the court's findings were wholly unsupported by the evidence presented during the termination proceeding.</block_quote> <bold>2. Termination of Parental Rights — lack of progress — incarcerated</bold> <bold>father — findings not sufficient</bold> <block_quote> The trial court's findings in a termination of parental rights proceeding were not sufficient to support the conclusion that<page_number>Page 215</page_number> respondent had left the children in foster care for more than twelve months without making progress. The trial court failed to make any findings of fact specifically related to respondent's progress after the children were removed from the home.</block_quote> <bold>3. Termination of Parental Rights — abandonment — not alleged in</bold> <bold>petition</bold> <block_quote> The trial court erred by terminating parental rights based on abandonment where DSS did not allege abandonment in the petition. Respondent did not have notice that abandonment would be at issue.</block_quote>

<bold>1. Civil Procedure — Rule 60 motion — denial — no abuse of discretion</bold> <block_quote> The trial court did not abuse its discretion by denying plaintiff's Rule 60 motion for relief in an action arising from multiple appeals in an action for divorce, child support, and child custody. The trial court's findings were supported by competent evidence. Plaintiff did not show that the order was manifestly unsupported by reason.</block_quote> <bold>2. Child Support, Custody, and Visitation — parental coordinator —</bold> <bold>appointment of — no error</bold> <block_quote> An assignment of error to the appointment of a parent coordinator was overruled where the transcripts of the proceeding were incomplete, the trial court's findings were presumed to be supported by competent evidence, and the trial court's findings demonstrate that it complied with N.C.G.S. § <cross_reference>50-94</cross_reference>.</block_quote>

<bold>1. Cities and Towns — annexation — police services — testimony excluded</bold> <block_quote> The trial court did not abuse its discretion in an annexation action by granting a motion in limine to exclude testimony from the Chief Deputy about the agreement between respondent (the annexing town) and the county sheriff's department to provide enhanced police services to the town's residents. Petitioners did not show that the exclusion of the testimony prejudiced the out-come of the case.</block_quote><page_number>Page 487</page_number> <bold>2. Cities and Towns — annexation — meaningful benefit — police services</bold> <block_quote> The trial court did not err by granting a motion to dismiss petitioners' challenge to an annexation ordinance for failure to provide the annexed residents with a meaningful benefit where the annexation provided police protection which was tailored to the expressed needs and preferences of the residents.</block_quote>

<bold>Real Property — contingency sale — condition precedent — failure to</bold> <bold>return earnest money — no showing of bad faith</bold> <block_quote> The trial court did not err by granting summary judgment in favor of plaintiffs and by directing defendants to return the earnest money to plaintiffs after plaintiffs failed to purchase defendants' property because plaintiffs' obligation to purchase defendants' property was contingent on the sale of plaintiffs' existing residence, and that residence was not sold and plaintiffs did not act in bad faith in failing to meet the condition precedent.</block_quote><page_number>Page 522</page_number>

<bold>1. Construction Claims — negligence in designing or manufacturing trusses</bold> <bold>— economic loss rule</bold> <block_quote> The trial court did not err by failing to bar plaintiffs' claims under the economic loss rule arising from the subcontractor defendants' alleged negligence in designing or manufacturing trusses used in constructing plaintiffs' home, because: (1) there was no contract between plaintiffs and the subcontractor defendants, and instead those defendants and the general contractor<page_number>Page 636</page_number> defendant entered into a contract for the trusses; (2) there is a means of redress for those purchasers who suffer economic loss or damage from improper construction but who have no basis for recovery in contract; and (3) the subcontractor defendants had a duty to use reasonable care in performing its promise to provide reliable trusses to the general contractor for use in the construction of plaintiffs' residence.</block_quote> <bold>2. Construction Claims — negligence in designing or manufacturing trusses</bold> <bold>— statute of limitations</bold> <block_quote> The trial court did not err as a matter of law by denying the subcontractor defendants' motion for directed verdict based on the alleged expiration of the three-year statute of limitations under N.C.G.S. § <cross_reference>1-52</cross_reference> in an action arising from defendants' alleged negligence in designing or manufacturing trusses used in constructing plaintiffs' home, because: (1) the statute of limitations shall not accrue until bodily harm to the claimant or physical damages to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event occurs first; and (2) whether a cause of action is barred by the statute of limitations is a mixed question of law and fact, and the weighing of the evidence and credibility of witnesses is the responsibility of the jury.</block_quote> <bold>3. Evidence — construction of another residence — statements made by</bold> <bold>employees</bold> <block_quote> The trial court did not abuse its discretion in an action arising from the subcontractor defendants' alleged negligence in designing or manufacturing trusses used in constructing plaintiffs' home by allowing evidence related to the construction of another residence with trusses from the subcontractor defendants and alleged statements made by defendants' employees, because: (1) the trial court heard extensive argument as to both issues and placed some limits on the evidence that could be presented; and (2) the decisions were based on reason.</block_quote> <bold>4. Negligence — instructions — economic loss rule on contributory</bold> <bold>negligence — duty to mitigate damages — intervening negligence</bold> <block_quote> The trial court did not abuse its discretion in an action arising from alleged negligence in designing or manufacturing trusses used in constructing plaintiffs' home by failing to submit the subcontractor defendants' requested instruction on allowable damages<page_number>Page 637</page_number> in a negligence action including the economic loss rule on contributory negligence, the duty to mitigate damages, and intervening negligence, because the bulk of defendants' argument again revisited the issue of the applicability of the economic loss rule, and that rule does not control in this case.</block_quote>

<bold>1. Child Abuse and Neglect — best interests of juvenile — findings</bold> <block_quote> The uncontested findings supported the trial court's conclusion that it was in a juvenile's best interest for legal custody to be with her father where the father's fitness and ability to provide proper care and supervision were not contested, and there were numerous uncontested findings that demonstrated respondent mother's unfitness and inability to provide proper care.</block_quote><page_number>Page 740</page_number> <bold>2. Appeal and Error — custody of child — assignment of error — review</bold> <bold>order only</bold> <block_quote> The respondent in a proceeding to determine custody of a juvenile appealed only from the trial court's review order and not from the court's subsequent civil custody order, so that the Court of Appeals acquired no jurisdiction to consider respondent's assignment of error regarding findings under N.C.G.S. § <cross_reference>7B-911</cross_reference>(c)(1). According to the plain and definite meaning of the statute, it applies only to civil custody orders.</block_quote>

<bold>1. Unfair Trade Practices — sale of private residence — not in commerce</bold> <block_quote> The trial court did not err by granting summary judgment for defendant on an unfair and deceptive trade practice claim arising from the sale of defendant's private residence. Defendant was not engaged in commerce.</block_quote> <bold>2. Fraud — sale of residence — no reasonable reliance — buyer's own</bold> <bold>inspection</bold> <block_quote> The trial judge did not err by granting summary judgment for defendant on claims for fraud and negligent misrepresentation arising from the sale of a house. Plaintiff did not show reasonable reliance: she conducted a home inspection that put her on notice of potential problems and any reliance on other documents would not have been reasonable. Moreover, she did not produce evidence of an allegedly false roof report beyond her own uncorroborated statement.</block_quote>