Volume 183 — North Carolina Court of Appeals Reports

<bold>1. Child Abuse and Neglect — delay in adjudicatory hearing — no</bold> <bold>prejudice</bold> <block_quote> It is much more difficult to show prejudice from delays in juvenile adjudicatory hearings where parental status is not in issue than in hearings on the termination of parental rights; a sharp distinction must be drawn between the focus of those hearings. Here, respondents did not show prejudice as the result of any delay in holding a juvenile adjudicatory hearing where the presiding judge had entered numerous continuances.</block_quote> <bold>2. Child Abuse and Neglect — conclusion of neglect — supported by</bold> <bold>evidence</bold> <block_quote> The conclusion that a juvenile was neglected was supported by the mother's admission that she had used cocaine for at least two months prior to his birth, she and the child had tested positive for cocaine at the time of birth, there was evidence of domestic violence between respondents, the mother refused to sign a second Safety Assessment Plan, and she also refused to<page_number>Page 85</page_number> agree to remain in the home of the grandmother to ensure the child's safety.</block_quote> <bold>3. Child Abuse and Neglect — neglect and dependency — no separate</bold> <bold>findings about father — status of child in issue</bold> <block_quote> The issue at an adjudication and disposition stage is the status of the juvenile and not the assignment of culpability; there was no merit to the contention here that the trial court erred by not making findings as to the father regarding neglect and dependency of the child.</block_quote> <bold>4. Child Abuse and Neglect — adjudication of dependency" findings —</bold> <bold>ability of parent to provide care — availability of alternate care</bold> <block_quote> An adjudication of dependency was reversed and remanded for findings as to the ability of the parent to provide care or supervision and the availability of alternate child care arrangements.</block_quote> Judge LEVINSON concurring in the result.

<bold>1. Juveniles — delinquency — denial of motion for continuance —</bold> <bold>psychological evaluation</bold> <block_quote> The trial court did not err in a juvenile delinquency and probation violation case by denying appellant juvenile's motion to continue and by failing to consider his psychological history during the dispositional hearing, because: (1) the trial court possessed the discretion to deny the juvenile's motion to continue to obtain cumulative documentation and did not abuse its discretion when it denied his motion to continue in order for the juvenile's counsel to obtain a four-year-old psychological evaluation; and (2) the juvenile's more recent psychological information was included in his Juvenile-Family Data Sheet.</block_quote><page_number>Page 108</page_number> <bold>2. Juveniles — delinquency — Level 3 disposition — commitment to youth</bold> <bold>development center</bold> <block_quote> The trial court did not err in a juvenile delinquency and probation violation case by finding appellant juvenile had committed a violent offense and by entering a Level 3 disposition and commitment order placing him in a youth development center, because: (1) the trial court found the juvenile committed a serious Class A-1 misdemeanor and had a high prior delinquency history; (2) the trial court possessed the discretion to enter the delinquency Level 3 under N.C.G.S. § <cross_reference>7B-2508</cross_reference>; and (3) the juvenile failed to show the trial court abused its discretion.</block_quote> <bold>3. Probation and Parole — court asked counselor to state juvenile's</bold> <bold>probation terms and conditions — clarification</bold> <block_quote> The trial court did not err in a juvenile delinquency and probation violation case by asking the juvenile court counselor to state the juvenile's probation terms and conditions, because: (1) the trial court's statement that the district attorney should ask the counselor about the juvenile's probation terms and conditions was neither opinion nor hearsay testimony; (2) the court's question clarified the counselor's testimony and provided the court with a better understanding of the counselor's recommended disposition; and (3) the juvenile failed to show how the trial court's question prejudiced him.</block_quote> <bold>4. Appeal and Error — preservation of issues — failure to cite authority</bold> <block_quote> Although appellant juvenile contends the trial court erred when it entered its findings of fact in a juvenile delinquency and probation violation case, this assignment of error is dismissed because: (1) the juvenile failed to cite any authority supporting his argument and adopted and incorporated the arguments set out in the previous argument; (2) the juvenile failed to cite any legal authority in any section of his brief to support his argument; and (3) N.C. R. App. P. 28(b)(6) requires the body of the argument shall contain citations of the authorities upon which the appellant relies.</block_quote>

<bold>Termination of Parental Rights — appeal — <italic>Anders</italic></bold><bold> brief — not available</bold> <block_quote> The procedure available in criminal cases through <italic>Anders v. California</italic>, <cross_reference>386 U.S. 738</cross_reference> (1967), for submitting the record for appellate review upon a statement that counsel was unable to find error was not extended to termination of parental rights proceedings. However, the Court of Appeals used its discretion under Appellate Rule 2 to review the record in this case and determined that the trial court's findings were properly supported by clear, cogent, and convincing evidence, and that its findings supported its conclusions.</block_quote>

<bold>1. Statutes of Limitation and Repose — shipping contract — limitations</bold> <bold>period provided in bill of lading</bold> <block_quote> The trial court did not err in a breach of contract, demand for payment on account, and failure to stop shipments in transit case by entering summary judgment in favor of defendant Geologistics based on expiration of the statute of limitations, because: (1) contrary<page_number>Page 120</page_number> to plaintiff's assertion, the one-year statute of limitations under <cross_reference>46 U.S.C.S. § 30701</cross_reference>(3)(6) for claims asserted under the Carriage of Goods by Sea Act does not apply to plaintiff's assertions of claims against defendant when defendant did not assert control over the thirty-nine furniture containers until the shipments reached the port of entry and were off-loaded from the vessel; (2) provisions in a shipping contract fix the time in which suit must be brought, and the parties' nine-month contractual statute of limitations on the bills of lading applied; and (3) the parties stipulated the last furniture shipment of the thirty-nine containers arrived at the United States port of entry in June 2003, and plaintiff filed its complaint in September 2004.</block_quote> <bold>2. Statutes of Limitation and Repose — not tolled until delivery and</bold> <bold>notice — bills of lading contract</bold> <block_quote> The trial court did not err in a breach of contract, demand for payment on account, and failure to stop shipments in transit case by concluding the statute of limitations was not tolled until defendant Geologistics provided plaintiff with notice of delivery, because: (1) plaintiff mistakenly relies upon a notice requirement for delivery of the goods under the Carriage of Goods by Sea Act (COGSA); (2) COGSA and its statute of limitations does not apply; and (3) the bills of lading contract between plaintiff and defendant does not require notice to plaintiff for the nine-month statute of limitations to commence.</block_quote> <bold>3. Statutes of Limitation and Repose — equitable estoppel inapplicable —</bold> <bold>failure to show misled or induced not to institute suit</bold> <block_quote> The trial court did not err in a breach of contract, demand for payment on account, and failure to stop shipments in transit case by concluding that defendant Geologistics was not estopped from asserting the statute of limitations as a defense, because: (1) plaintiff failed to show defendant affirmatively misled, lulled, or kept plaintiff from filing its complaint earlier; and (2) no evidence showed defendant misled plaintiff or induced plaintiff not to institute suit.</block_quote>

<bold>1. Evidence — medical examiner reports — hearsay — public records</bold> <bold>exception</bold> <block_quote> Investigation and autopsy reports generated by a county medical examiner's office were properly admitted in a termination of parental rights proceeding under the public records exception to<page_number>Page 193</page_number> the hearsay rule set forth in N.C.R. Evid. 803(8), and the trial court did not err by making findings of fact based on those reports. The fact that the reports contain a medical examiner's opinion as to the cause of death of a child in addition to objective observations of the child's physical injuries does not render the reports inadmissible. Nor was the admissibility of the reports affected because they were admitted during the testimony of a medical examiner who did not personally participate in the examination of the child's body by another pathologist and did not author the reports.</block_quote> <bold>2. Evidence — hearsay — excited utterance exception</bold> <block_quote> The trial court did not err in a termination of parental rights case by allowing a police detective to testify, over respondent mother's objection, regarding a nine-year-old child's statements that she saw her mother whip her fourteen-month-old brother and hit him on the top of his head, because: (1) the testimony was admissible under the N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(2) excited utterance exception to the hearsay rule when the nine-year-old sister made her statements to the detective 16 hours after witnessing conduct that led to her brother's death; (2) the sister's conduct and demeanor when making the disputed statements indicated a sufficiently traumatic experience to cause her to continue to experience its effects 16 hours later; and (3) statements made in response to a posed question do not necessarily lack spontaneity.</block_quote> <bold>3. Termination of Parental Rights — grounds — voluntary manslaughter of</bold> <bold>another child — clear and convincing evidence standard</bold> <block_quote> The trial court did not err by concluding that grounds existed under N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a)(8) for termination of respondent mother's parental rights based upon finding that the parent committed voluntary manslaughter of another one of her children, because: (1) although respondent contends petitioner was required to prove the elements beyond a reasonable doubt rather than the customary clear and convincing evidence standard, respondent cites no authority that supports this contention, and the Juvenile Code unambiguously states the standard is by clear and convincing evidence; (2) in the absence of a constitutional mandate, the question whether it is just to use the clear and convincing evidence standard when the grounds for termination have criminal corollaries raises a question of policy better directed to the General Assembly; (3) this civil determination is not admissible<page_number>Page 194</page_number> in any subsequent criminal proceeding; and (4) assuming arguendo that the trial court was required to make specific findings as to each element of the crime of voluntary manslaughter, the trial court has adequately done so.</block_quote> <bold>4. Termination of Parental Rights — best interests of child — prior</bold> <bold>treatment of children</bold> <block_quote> The trial court did not abuse its discretion by concluding that termination of respondent mother's parental rights would be in the best interests of the children, because: (1) although respondent contends the trial court failed to make findings consistent with the six factors listed at N.C.G.S. § <cross_reference>7B-1110</cross_reference>(a) (1)-(6), these factors were added as an amendment to the statute in 2005 and do not apply to the petitions filed in this case on 2 November 2004; and (2) the decision was properly based upon a review of the trial court's findings regarding respondent's prior treatment of her children, her responsibility for the death of one of her children, the children's condition when entering foster care, and their current condition.</block_quote>

<bold>1. Child Abuse and Neglect — adjudication of neglect — clear, cogent, and</bold> <bold>convincing evidence</bold> <block_quote> Clear, cogent, and convincing evidence supported the conclusion that a child did not receive proper care and supervision and that the neglect was likely to result in physical, mental, or emotional impairment or a substantial risk of such impairment.</block_quote> <bold>2. Child Abuse and Neglect — findings — use of psychological evaluations</bold> <bold>and reports from GAL and social worker</bold> <block_quote> The trial court's extensive adjudicatory and dispositional findings in a child neglect proceeding showed that the court made its own determination of the facts and did not simply adopt reports from a social worker and the guardian ad litem and psychological evaluations. A court may consider written reports and make findings based on these reports so long as it does not broadly incorporate them as its findings.</block_quote> <bold>3. Child Abuse and Neglect — reunification efforts — futility — no one to</bold> <bold>supervise respondents</bold> <block_quote> The trial court did not err in a child neglect proceeding by ceasing reunification efforts where the findings supported the conclusion that continued reunification efforts would be futile.</block_quote> <bold>4. Child Abuse and Neglect — neglect — termination of visitation</bold> <block_quote> The termination of respondent mother's visitation was the result of a reasoned decision where it was supported by the findings and the evidence. The mother's parental rights to a sibling had been terminated and the parents had not made progress in working with DSS to parent this child.</block_quote> <bold>5. Appeal and Error — appealability — temporary dispositional order</bold> <block_quote> Respondent father is not entitled to appeal a temporary dispositional order in a child neglect proceeding. N.C.G.S. § <cross_reference>7B-1001</cross_reference>(a)(3) specifically delineates juvenile orders that may<page_number>Page 208</page_number> be appealed and does not provide that a party may appeal a temporary dispositional order.</block_quote> <bold>6. Child Abuse and Neglect — dispositional hearing — timeliness</bold> <block_quote> Respondent father did not establish prejudice from the failure to hold a dispositional hearing within 30 days after the completion of the adjudication hearing where the delay was due in part to respondent's failure to complete his psychological evaluation and respondents' joint motion for a continuance. N.C.G.S. § <cross_reference>7B-901</cross_reference>.</block_quote>

<bold>1. Sentencing — aggravated range — after <italic>Blakely</italic></bold>, <bold>before statute —</bold> <bold>special verdict — no error</bold> <block_quote> The trial court did not err by denying defendant's motion to prohibit sentencing in the aggravated range where the offense occurred after <italic>Blakely v.</italic> <italic>Washington</italic>, <cross_reference>542 U.S. 296</cross_reference>, but before North Carolina's sentencing act was amended. It has been held that North Carolina law permits submission of aggravating factors to the jury by a special verdict.</block_quote> <bold>2. Constitutional Law — ex post facto — aggravated second-degree murder</bold> <block_quote> Ex post facto clauses were not violated by a conviction for "aggravated second-degree murder" where defendant argued that the crime did not exist until after the sentencing changes that followed <italic>Blakely v. Washington.</italic> Defendant's ex post facto argument was preserved for review because it falls within N.C.G.S. § <cross_reference>15A-1446</cross_reference>(d), but fails because the trial court had the authority to use a special verdict regardless of the passage of the <italic>Blakely</italic> Act. Defendant was not improperly punished for an offense of which he was innocent on the date of the crime. U.S. Const. art. <cross_reference>I</cross_reference>, § <cross_reference>10</cross_reference>; N.C. Const. art. <bold>I</bold>, § 16.</block_quote> <bold>3. Sentencing — traffic accident — second-degree murder — assault —</bold> <bold>aggravating factor — risk of death to more than one person</bold> <block_quote> Where defendant was convicted of second-degree murder and assault with a deadly weapon inflicting serious injury, additional facts were required to prove the aggravating factor that defendant knowingly created a great risk of death by use of a device hazardous to more than one person. There was no violation of N.C.G.S. § <cross_reference>15A-1340.16</cross_reference>(d) by the submission of this aggravating factor.</block_quote> <bold>4. Sentencing — instructions — consideration of aggravating factor — not</bold> <bold>prejudicial — overwhelming evidence</bold> <block_quote> There was no plain error in the trial court's instructions on consideration of the aggravating factor of use of a weapon hazardous<page_number>Page 241</page_number> to more than one person. Even if the instruction was erroneous, the evidence against defendant was overwhelming.</block_quote> <bold>5. Sentencing — jurisdiction — aggravating factor</bold> <block_quote> The trial court had jurisdiction to sentence defendant where the jury did not find defendant guilty of "aggravated second degree murder" or "aggravated assault with a deadly weapon inflicting serious injury." The jury found each necessary element as well as the aggravating factor, the procedure used by the trial court was proper, and the instruction on the aggravating factor was sufficient.</block_quote>

<bold>1. Appeal and Error — appealability — denial of summary judgment — final</bold> <bold>judgment on merits rendered</bold> <block_quote> Although defendant contends the trial court erred in a breach of contract case by denying his motion for summary judgment, this issue cannot be addressed because a final judgment on the merits has been made.</block_quote> <bold>2. Contracts — breach — impossibility of performance — frustration of</bold> <bold>purpose</bold> <block_quote> The trial court did not err in a breach of contract case by denying defendant's motions for a new trial and amendment of judgment based on the jury's calculation of damages, because:<page_number>Page 250</page_number> (1) the doctrine of impossibility of performance was inapplicable when the premises at issue still exist and at the time defendant refused to perform were in the same condition as when the contract was signed; (2) although defendant contends he could not have opened a restaurant on the pertinent premises based on the fact that it was impossible to install the proper grease trap, conclusive evidence was presented that the current tenants of the property were in fact running a restaurant and had installed a functioning grease trap; and (3) the doctrine of frustration of purpose cannot be used where the frustrating event was reasonably foreseeable.</block_quote> <bold>3. Damages and Remedies — calculation — present value</bold> <block_quote> The trial court did not abuse its discretion in a breach of contract case by denying defendant's motions for a new trial and amendment of judgment based on the jury's alleged failure to follow the court's instructions on calculating damages based on present value, because: (1) the amount of damages was the same amount requested by plaintiffs, and the trial court considered and rejected defendant's argument in post-trial motions that this figure had not been reduced to present value; (2) there is no requirement that a trial court instruct a jury on the concept and calculation of present damages in cases such as this one; (3) it cannot be said with certainty that the jury's calculation of damages made no adjustments for present value; and (4) defendant provided the jury no evidence as to the present value of damages, nor did he request that the court instruct the jury on a formula or even general guidelines for determining present value.</block_quote> <bold>4. Costs — attorney fees — breach of lease of real property</bold> <block_quote> The trial court did not err in a breach of lease case by awarding attorney fees to plaintiff under N.C.G.S. § <cross_reference>6-21.2</cross_reference>, because: (1) the term "evidence of indebtedness" under the statute has reference to any printed or written instrument, signed or otherwise executed by the obligors, which evidences on its face a legally enforceable obligation to pay money; and (2) the Court of Appeals has previously applied N.C.G.S. § <cross_reference>6-21.2</cross_reference> to disputes regarding the lease of real property.</block_quote>

<bold>Probation and Parole — probation revocation — expiration of probation —</bold> <bold>subject matter jurisdiction</bold> <block_quote> The trial court lacked subject matter jurisdiction to revoke defendant's probation and to activate his suspended sentence on 21 April 2005, because: (1) except as provided in N.C.G.S. § <cross_reference>15A-1344</cross_reference>(f), a trial court lacks jurisdiction to revoke a defendant's probation after the expiration of the probationary term; (2) N.C.G.S. § <cross_reference>15A-1344</cross_reference>(d) provides that a trial court can only extend probation prior to the expiration or termination of the probation period; and (3) there was no finding by the court that there was a reasonable effort to notify the probationer and conduct the hearing earlier.</block_quote>

<bold>1. Evidence — exclusion of expert testimony</bold> <bold>— identification procedures</bold> <block_quote> The trial court did not abuse its discretion in a first-degree murder and felonious conspiracy to commit robbery with a firearm case by barring the expert testimony of Dr. Cutler regarding the identification procedures used, because: (1) Dr. Cutler did not interview the witnesses in this case, he did not observe their trial testimony, and he did not visit the crime scene; and (2) the probative value of the testimony, considered in the light most favorable to defendant, was marginally weak and the evidence would<page_number>Page 430</page_number> confuse the jury, unnecessarily delay the proceeding, and would not be of significant assistance to the jury.</block_quote> <bold>2. Evidence — privileged communications —</bold> <bold>statements made by codefendants to their attorneys</bold> <block_quote> The trial court did not err in a first-degree murder and felonious conspiracy to commit robbery with a firearm case by denying defendant's motion to compel disclosure of the statements made by his codefendants to their respective attorneys because, although defendant relies on our Supreme Court's opinions in <italic>Miller I</italic>, <cross_reference>357 N.C. 316</cross_reference> (2003), and <italic>Miller II</italic>, <cross_reference>358 N.C. 364</cross_reference> (2004), the language used demonstrated that the Court intended to limit the scope of its opinions to situations where the client is deceased.</block_quote>

<bold>Insurance — professional liability — duty to</bold> <bold>defend — comparison</bold> test <block_quote> The trial court erred by granting summary judgment in favor of defendant insurance company on the issue of whether it had the duty to defend plaintiff psychiatrist, the medical director of a Christian counseling service, against a previously filed lawsuit for negligent supervision of a pastor who provided counseling services, negligent infliction of emotional distress, intentional infliction of emotional distress, breach of fiduciary duty, and professional and medical malpractice even though defendant contends the policy provided no coverage when the complaint allegedly related only to early 2000 or later when plaintiff knew or should have known about the pastor's actions, whereas the policy period was from 1 August 1996 through 31 July 1998, because: (1) a comparison test revealed that at least a mere possibility existed that plaintiffs potential liability in that action was covered by defendant's professional liability policy; (2) given the allegations of negligent supervision throughout the pastor's counseling, the complaint contains sufficient factual allegations to bring the claims within the policy period; (3) plaintiff could arguably be held liable for negligently supervising the pastor during 1997 and 1998 regardless of whether he knew or should have known of any misconduct by the pastor; (4) the negligent infliction of emotional distress and breach of fiduciary duty claims were during the counseling period that began in 1997 and 1998, and neither of those claims necessarily depend upon the allegation of what plaintiff knew or should have known in 2000; and (5) the duty to defend is not dependent on the viability of the claims, and the possibility that the claims may ultimately be found groundless based on the statute of limitations does not excuse defendant from providing a defense to establish that fact.</block_quote>

<bold>Insurance — business vehicle policy — injury</bold> <bold>while driving personal vehicle — UIM coverage —</bold> <bold>policy endorsement</bold> <block_quote> Plaintiffs were entitled to underinsured motorist (UIM) coverage under a business vehicle policy even though they were driving an automobile not listed in the policy at the time of an accident because: (1) plaintiffs were named as "designated individuals" on the Elective Options Form for UIM coverage and, as such, qualified under an endorsement of the policy as "named insureds" for the UIM coverage part of the policy; (2) UIM coverage follows the person and not the vehicle; and (3) the "owned vehicle" exclusion of the policy does not apply when the persons injured in a collision are named insureds in the policy.</block_quote>

<bold>Taxation — excise tax — unauthorized</bold> <bold>substance — jurisdiction of superior court —</bold> <bold>payment of tax</bold> <block_quote> The subject matter jurisdictional requirement of N.C.G.S. § 105-241.3 that a taxpayer pay a contested tax assessment in order to appeal a decision of the Tax Review Board to the superior court did not violate the due process rights of a taxpayer who did not have the ability to prepay an unauthorized substance (marijuana) excise tax.</block_quote>

<bold>1. Sentencing — <italic>Blakely</italic></bold><bold> error —</bold> <bold>evidence overwhelming and uncontroverted — no prejudicial</bold> <bold>error</bold> <block_quote> There was no prejudice from a <italic>Blakely</italic> sentencing error where the evidence was so overwhelming and uncontroverted that any rational fact-finder would have found this aggravating factor beyond a reasonable doubt.</block_quote> <bold>2. Criminal Law — resentencing — change of</bold> <bold>counsel — continuance denied — preparation time</bold> <bold>reasonable</bold> <block_quote> The trial court did not err by denying a continuance for defendant's resentencing after his counsel was replaced where fifty-six days passed between the appointment of new counsel and the hearing, the new counsel met defendant for the first time on the day of the hearing, and the new counsel moved for a continuance to research whether sentencing defendant for attempted voluntary manslaughter was an ex post facto violation. Defendant's resentencing hearing was not unusual or complex, the ex post facto issue had already been decided by the Court of Appeals, and fifty-six days was a reasonable time to prepare for the resentencing hearing.</block_quote> <bold>3. Sentencing — amendments — changes in</bold> <bold>sequence — not a correction of clerical error</bold> <block_quote> The amendment of a judgment was vacated where defendant was not present and at least some of the changes were not corrections of clerical errors. Another amended judgment was vacated where the court changed the sequence of sentences.</block_quote> <bold>4. Sentencing — remand — sequence of</bold> <bold>sentences</bold> <block_quote> In, an ancillary issue, there was no inherent defect in a judgment necessitating amendment where the judgment was on remand and the Department of Correction had sent a letter to the Clerk of Superior Court suggesting that the sequence of sentences was improper after the remand. The North Carolina Supreme Court in another case ordered the result which DOC here identified as improper.</block_quote><page_number>Page 595</page_number>

<bold>1. Immunity — governmental — city —</bold> <bold>controlling traffic during funeral procession —</bold> <bold>governmental function</bold> <block_quote> Governmental immunity applies to a city when a traffic accident occurs on a city street during a funeral procession, and the trial court properly dismissed the action here. N.C.G.S. § <cross_reference>160A-296</cross_reference>(a)(2) requires a city to keep public streets free from unnecessary obstructions, but a moving car, even if operated negligently, cannot be considered an "obstruction" within the statute.</block_quote> <bold>2. Immunity — governmental — funeral</bold> <bold>procession — traffic light timing</bold> <block_quote> The timing of traffic control signals is a governmental function within the doctrine of immunity, and plaintiff failed to state a cause of action arising from a traffic accident where she contended that a city breached its standard of care by not providing a green light to a funeral procession.</block_quote> <bold>3. Immunity — governmental — law enforcement</bold> <bold>— control of traffic</bold> <block_quote> Law enforcement is a governmental function, and immunity applies to any nonfeasance by a city police department in not guarding against a traffic accident in a funeral procession.</block_quote>