Volume 186 — North Carolina Court of Appeals Reports

<bold>1. Guaranty — expiration provision — ambiguous — properly submitted to</bold> <bold>jury</bold> <block_quote> The trial judge properly submitted to the jury the issue of whether a guaranty agreement had expired where the conflicting constructions offered by the parties were both reasonable constructions of the provision.</block_quote> <bold>2. Guaranty — notice of claim — prejudice</bold> <block_quote> The trial court did not err by denying defendant's motions for directed verdict and judgment n.o.v. based on plaintiff's alleged<page_number>Page 69</page_number> failure to provide a contractually required notice of claim on a guaranty. Although plaintiff contended that he had provided notice in a letter, that letter was not timely, even if the substance provided notice. However, the burden was on defendant to show that the lack of notice prejudiced her.</block_quote> <bold>3. Trials — requested instruction not given — encompassed in another</bold> <block_quote> The trial judge did not abuse his discretion by not submitting to the jury a requested instruction where another issue which was submitted encompassed the substance of the requested instruction.</block_quote> <bold>4. Trials — motion for new trial — denial not abuse of discretion</bold> <block_quote> The trial judge did not abuse his discretion by denying defendant's motion for a new trial based on errors raised previously in the opinion where it had been held that those were not errors or abuses of discretion.</block_quote>

<bold>1. Constitutional Law — right to counsel and right to testify —</bold> <bold>entitlement to both</bold> <block_quote> Forcing defendant to choose between testifying or relinquishing his right to be represented by counsel constituted constitutional error in an armed robbery prosecution where the counsel was of the opinion that defendant's testimony would be false and the judge told defendant that he could proceed pro se if he insisted on testifying. Defendant is entitled both to testify in his own behalf and to his right to counsel.</block_quote> <bold>2. Sentencing — prior record level — prior probationary status —</bold> <bold>determination by jury required</bold> <block_quote> In a case remanded on other grounds, the trial court must submit defendant's prior probationary status to the jury for proof beyond a reasonable doubt, unless it is admitted by defendant, in order to use that status to enhance defendant's prior record level for the purpose of sentencing.</block_quote>

<bold>1. Appeal and Error — appealability — interlocutory order — dismissal of</bold> <bold>one count while another pending</bold> <block_quote> Defendant's motion to dismiss the State's appeal from the dismissal with prejudice of one count against defendant for resisting, delaying or obstructing a public officer (RDO) while there was still another count pending for trespassing is denied even though defendant contends the appeal is from an interlocutory order, because: (1) in the instant case there was a decision, dismissal of the charge of RDO, but not a judgment since a sentence was not pronounced; and (2) if the legislature had intended that the State not be able to appeal unless and until the court dismissed all counts against a defendant or entered a judgment, N.C.G.S. § <cross_reference>15A-1445</cross_reference>(a)(1) would not refer to a decision or dismissal of one or more counts.</block_quote> <bold>2. Appeal and Error — appealability — double jeopardy — jury must be</bold> <bold>sworn in criminal case</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the State's appeal from an order dismissing one of two criminal charges pending against defendant based on double jeopardy, because: (1) in a criminal case, jeopardy does not attach until a competent jury has been empaneled and sworn; and (2) defendant made her oral motion to dismiss before jury selection had even begun.</block_quote> <bold>3. Constitutional Law — double jeopardy — resisting, delaying, or</bold> <bold>obstructing officer — acquittal of assaulting official — same</bold> <bold>evidence test</bold> <block_quote> Defendant's right against double jeopardy was not violated by the prosecution of defendant on a charge of resisting, delaying or obstructing a public officer (RDO) in the superior court after defendant was acquitted of a charge of assault on a government official in the district court where the charge of RDO was based upon defendant "pulling away and elbowing at the officer" while the charge of assault on a government official was based upon defendant "elbowing" the officer; defendant need not have been under arrest in order for her "pulling away" from the officer<page_number>Page 383</page_number> to sustain a conviction of RDO; and the charges of RDO and assault on a government official were thus not based upon the same evidence.</block_quote>

<bold>1. Appeal and Error — appealability — interlocutory order —</bold> <bold>jurisdictional — not raised by parties</bold> <block_quote> Whether an appeal is interlocutory is jurisdictional and the issue was addressed in this case even though the parties did not raise the issue.</block_quote> <bold>2. Appeal and Error — appealability — summary judgment as to only one</bold> <bold>party — voluntary dismissal without prejudice</bold> <block_quote> A summary judgment which did not dispose of the issues as to all parties was not dismissed as interlocutory where there had been a voluntary dismissal without prejudice as to the remaining party, the time for refiling that claim had expired, and the stipulation of dismissal did not contain language purporting to extend the time. The Court of Appeals did not believe that counsel was manipulating the Rules of Civil Procedure in an attempt to appeal an order that should not be appealable.</block_quote> <bold>3. Appeal and Error — appealability — partial summary judgment —</bold> <bold>contributory negligence</bold> <block_quote> Partial summary judgment was not interlocutory where the issue was contributory negligence, and granting the motion for summary judgment as to contributory negligence completely disposed of the case.</block_quote> <bold>4. Negligence — darkened motel staircase — contributory negligence —</bold> <bold>summary judgment</bold> <block_quote> The trial court erred by granting summary judgment for a motel owner on the basis of contributory negligence in an action by a guest who fell in a darkened staircase. A jury could find that plaintiff knew that the stairwell was dark and should have found another way out of the motel, but could also find that plaintiff was not aware of any other way out of the motel and used proper care in descending the dark stairs.</block_quote> <bold>5. Negligence — darkened motel staircase — summary judgment</bold> <block_quote> The trial court correctly denied defendant's summary judgment motion on the issue of negligence in an action arising from a motel guest falling when descending a darkened staircase.</block_quote><page_number>Page 391</page_number>

<bold>1. Search and Seizure — probable cause — reasonable suspicion — driving</bold> <bold>while impaired</bold> <block_quote> The trial court did not err in a habitual driving while impaired case by denying defendant's motion to suppress even though defendant contends an officer did not have probable cause to stop her, because: (1) it is unnecessary to determine whether he had probable cause for a registration violation when the totality of circumstances revealed the officer had reasonable suspicion to stop defendant for DWI; and (2) contrary to defendant's assertion, the DWI statute has no requirement that a vehicle must be interfering with traffic in order for an officer to constitutionally stop a vehicle.</block_quote> <bold>2. Motor Vehicles — habitual driving while impaired — sufficiency of</bold> <bold>findings of fact</bold> <block_quote> The trial court did not err in a habitual driving while impaired case by allegedly making insufficient findings of fact that defendant committed any traffic violations, because: (1) the order in open court and the written order signed by the court found such violations; and (2) the trial court specifically found that the officer initiated a traffic stop on his suspicion that defendant could have violated North Carolina law including driving while under the influence and for a registration plate law violation.</block_quote> <bold>3. Evidence — questioning by trial court — promoting understanding of</bold> <bold>case — impartiality — no expression of opinion</bold> <block_quote> The trial court did not err in a habitual driving while impaired case by asking an officer an additional question about defendant's behavior after the traffic stop, because: (1) the trial court stated it was trying to understand the whole picture of what happened, and although it was outside the scope of what was appropriate for such a hearing, defendant made no legitimate argument that the judge was partial to the State's case; (2) when the trial court questions a witness to clarify his testimony or to promote an understanding of the case, such questioning does not amount to an expression of the trial court's opinion as to defendant's guilt or innocence; (3) the trial court is presumed to disregard incompetent<page_number>Page 406</page_number> evidence in making its decisions as a finder of fact, and there was no showing by defendant to overcome this presumption; and (4) none of the trial court's findings of fact related to any testimony received after the officer was asked to step down.</block_quote> <bold>4. Appeal and Error — preservation of issues — failure to object —</bold> <bold>failure to administer oath to witness</bold> <block_quote> The trial court did not commit prejudicial error in a habitual driving while impaired case by questioning an officer after the close of the evidence without again informing the officer that he was still under oath, because: (1) where a trial court fails to administer the oath to a witness, defendant's failure to object waives appellate review of the court's error since upon objection the trial court could have corrected any error; and (2) defense counsel neither objected nor attempted to question the officer at any time before, during, or after the trial court's questions.</block_quote>

<bold>Medical Malpractice — proximate cause — expert testimony — specialities</bold> <bold>of witnesses</bold> <block_quote> In a medical malpractice action, expert testimony on causation (rather than the standard of care) is competent as long as it is helpful to the jury and is based on information reasonably relied upon. The trial court here erred by granting a judgment NOV for defendants in an action arising from a back injury where defendants contended that plaintiffs' evidence of proximate causation did not come from appropriate experts.</block_quote>

<bold>Workers' Compensation — occupational disease — Lyme disease — failure to</bold> <bold>show employment placed at increased risk</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by concluding that plaintiff employee did not prove that there was a causal relationship between her employment as a veterinary technician and her Lyme disease because: (1) although the employment-related accident need not be the sole causative force to render an injury compensable, plaintiff must prove that the accident was a causal factor by a preponderance of the evidence; (2) a doctor's testimony on the issue of causation was at best equivocal, and the portions of the doctor's testimony relied on by plaintiff are not dispositive in light of the doctor's other testimony that supported a finding of no causation; (3) there was competent evidence in the record supporting a finding of no causal link; and (4) although plaintiff contends the Commission's finding of no causation should be rejected based on a consideration of the circumstantial evidence before the Commission as permitted by case law, the dispositive difference between this case and the others cited by plaintiff is that the Commission found causation and awarded benefits in the other cases whereas the Commission found there was no causal relationship between the employment and plaintiff's condition in the instant case.</block_quote><page_number>Page 419</page_number>

<bold>1. Termination of Parental Rights — subject matter jurisdiction —</bold> <bold>verified petition</bold> <block_quote> The trial court had subject matter jurisdiction in a termination of parental rights case even though the verified petition failed to contain all of the information required by N.C.G.S. § <cross_reference>7B-1104</cross_reference>, because: (1) the father asserted no prejudice arising from the alleged omissions, and none was found; and (2) the record as a whole disclosed the father had access to all of the information required by the statute, and the petition was substantially compliant on its face.</block_quote><page_number>Page 452</page_number> <bold>2. Termination of Parental Rights — sufficiency of findings of fact —</bold> <bold>willfulness</bold> <block_quote> The trial court erred in a termination of parental rights case by failing to make specific findings of fact or to state in its conclusions of law that the father's actions were willful, and the case is remanded to the trial court to make appropriate findings as to willfulness and, if appropriate, to articulate conclusions of law including grounds under N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a) forming the basis for termination. The trial court may, in its discretion, receive additional evidence on remand.</block_quote>

<bold>1. Contempt — civil contempt — no underlying order or judgment — failure</bold> <bold>to give adequate notice — failure to make appropriate findings of</bold> <bold>fact</bold> <block_quote> The trial court erred by holding defendants in civil contempt for failure to pay $2,480 in a summary ejectment case, because: (1) the contempt order was not based on any underlying order or judgment since no judgment was reduced to writing as required by N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 58; (2) even if the trial court's underlying judgment had been properly entered, defendants had not been given adequate notice of the contempt proceeding when defendants were notified at the end of trial that they would be held in contempt until the debt was paid and they were taken immediately to jail with no good cause shown in violation of N.C.G.S. § <cross_reference>5A-23</cross_reference>(a); and (3) the trial court failed to make the appropriate findings of fact including willfulness and the ability to comply, and to the contrary the court found defendants were not able to pay the court ordered amount.</block_quote> <bold>2. Appeal and Error — appealability — outside scope of order</bold> <block_quote> Although defendant's remaining arguments concern errors that allegedly occurred during trial relating to the admission of evidence and rulings on defendants' defenses and counterclaims, these assignments of error are dismissed because: (1) they are not properly before the Court of Appeals since they are outside the scope of the order being appealed; and (2) the notice of appeal references the order entered on 6 September 2006 which found defendant in civil contempt, and thus defendants have properly appealed only from the court's determination of civil contempt.</block_quote>

<bold>1. Appeal and Error — preservation of issues — trial judge not ruling on</bold> <bold>motion — no argument that ruling required</bold> <block_quote> The issue of whether the trial court erred by refusing to rule on a motion to set aside another judge's order was not preserved for appeal where defendants did not argue that the trial court was required to rule on their motion. If it had been, the trial court did not err by refusing to entertain the motion.</block_quote> <bold>2. Judges — one judge overruling another — Rule 60 motion</bold> <block_quote> Although defendants argue that the general rule barring one superior court judge from overruling another does not apply because their motion should be construed as having been brought under Rule 60, defendant's motion was not in fact brought under that section, defendants did not seek to amend the motion, and<page_number>Page 513</page_number> defendants never raised this argument at trial. Moreover, if it was a Rule 60 motion, it was not timely.</block_quote> <bold>3. Statutes of Limitation and Repose — limitations — Torrens Act</bold> <bold>registration</bold> <block_quote> Defendants' motion involving the application of the Torrens Act in a 1979 proceeding was not timely under either the one-year statute of limitations of N.C.G.S. § <cross_reference>43-26</cross_reference> or the three-year statute of limitations of N.C.G.S. § <cross_reference>1-52</cross_reference>(9).</block_quote> <bold>4. Real Property — Torrens registration — service not properly obtained</bold> <bold>on one heir — no challenge by that heir</bold> <block_quote> Athough defendants in an action involving a Torrens property registration argued that the decree of registration was not valid because one of the heirs was not properly served, defendant did not cite any cases holding that the failure to notify another party, not the defendants themselves, voids a decree of registration that is not being challenged by the heir who allegedly was not notified. Furthermore, defendants are attempting to raise issues that have already been adjudicated.</block_quote> <bold>5. Appeal and Error; Attorneys-appealability — motion to disqualify</bold> <bold>attorney denied</bold> <block_quote> The trial court's denial of defendants' motion to disqualify plaintiff's attorney was interlocutory and not subject to appeal where only a partial summary judgment had been granted on the underlying action. However, if the issue had been addressed, it is clear that the trial court did not abuse its discretion. The earlier action from which the alleged conflict of interest arose was not relitigated in the hearing giving rise to the orders from which defendants here appealed.</block_quote> <bold>6. Contempt — civil and criminal — different acts</bold> <block_quote> Defendants were found in civil and criminal contempt on the basis of different acts: they were found in civil contempt for failing to comply with an earlier order not to trespass, and in criminal contempt for threatening to disobey future orders.</block_quote> <bold>7. Contempt — penalties — testimony of intended refusal to obey order</bold> <block_quote> The trial court did not err by imposing penalties for indirect criminal contempt where the defendants testified in the court's presence that they would not obey the orders of the court. This constituted direct contempt; however, the penalty is the same for<page_number>Page 514</page_number> both direct and indirect criminal contempt, and defendants were afforded the assistance of counsel and the opportunity to testify and explain why they continued to trespass on the property.</block_quote> <bold>8. Contempt — refusal to leave property — future arrest and bond</bold> <block_quote> The trial court did not abuse its discretion in a trespass action where defendants testified that they would not leave the property and the court issued an order that defendants would be taken into custody if they were again found on the property. The court did not impose a sentence or recommit defendants, but provided that they must post a $500 bond before being released from custody if they were again arrested for violating orders to stay off the property.</block_quote>

<bold>Jurisdiction — personal jurisdiction — corporate activities</bold> <block_quote> The trial court did not err by concluding that personal jurisdiction was properly asserted over nonresident defendants where they had asserted that their actions in North Carolina were as agents of corporate entities. The cases cited do not support the contention that the actions of a defendant as an employee or agent of another may not be considered for the purpose of establishing personal jurisdiction over defendant, and relevant North Carolina jurisprudence is to the contrary.</block_quote>

<bold>1. Appeal and Error — judicial notice by Court of Appeals — appeal in</bold> <bold>another state</bold> <block_quote> Judicial notice was taken by the Court of Appeals of defendants' appeal of an underlying judgment through the Texas courts.</block_quote> <bold>2. Jurisdiction — subject matter — foreign judgment — pending appeal</bold> <block_quote> The trial court did not lack subject matter jurisdiction in an action to enforce a foreign judgment where an appeal of that judgment was pending. Assuming that defendants invoked the correct statute, they did not assert the pendency of the Texas appeal and the record is silent as to any bond being posted.</block_quote> <bold>3. Judgments — foreign jurisdiction — pending appeal</bold> <block_quote> Defendants cited no statutory or common-law authority for the claim that full faith and credit should not be accorded to a judgment where the underlying case is pending appeal in the foreign jurisdiction. It was defendants' responsibility to seek a stay of the North Carolina proceedings in the trial court pursuant to N.C.G.S. § <cross_reference>1C-1705</cross_reference>(a)(2).</block_quote> <bold>4. Appeal and Error — pro se litigant</bold> — <bold>sanctions</bold> <block_quote> Sanctions were imposed against pro se litigants who castigated plaintiff's counsel in an attempt to conceal their own deficient pleadings and defense and who asserted that the judge committed fraud or was not impartial. The fact that a judge has ruled against a party does not constitute a basis for asserting fraud or impartiality. Taken together, defendants' violations are egregious and transcend the tolerance level ordinarily reserved for pro se litigants. N.C. R. App. P. 34(b)(2)(a).</block_quote>

<bold>1. Constitutional Law — separation of powers — habitual DWI statute —</bold> <bold>prosecutorial discretion</bold> <block_quote> Defendant's argument that the habitual DWI statute violates separation of powers, based on prosecutorial discretion, has been rejected in a case involving the Habitual Felon Act. Defendant neither argued nor does the evidence reflect an improper motive by the prosecutor.</block_quote> <bold>2. Search and Seizure — traffic stop — improper tags sufficient</bold> <block_quote> Improper license tags provided sufficient cause to stop defendant, and the trial court did not err by denying defendant's motion to suppress the resulting evidence of driving while impaired.</block_quote> <bold>3. Witnesses — lay opinion — intoxication of another</bold> <block_quote> A lay person may testify that a person is impaired, in his or her opinion, if that opinion is based on personal observation. The trial court did not err in a driving while impaired prosecution by allowing a deputy to testify that defendant was impaired where there was no dispute that the deputy personally observed defendant and that she based her opinion on those observations.</block_quote> <bold>4. Motor Vehicles — driving while impaired — sufficiency of evidence</bold> <block_quote> There was sufficient evidence of driving while impaired to go to the jury where defendant failed the field sobriety tests, his eyes were bloodshot and his speech slurred, there was an empty can of beer in his car and he admitted to having had four beers, and he refused to take an intoxilyzer test.</block_quote>