Volume 187 — North Carolina Court of Appeals Reports

<bold>1. Contempt — civil contempt — no entitlement to full protections of</bold> <bold>criminal contempt</bold> <block_quote> The trial court did not err in a civil contempt case by failing to give defendant due notice of whether the contempt proceeding against her was civil or criminal in nature, because: (1) defendant admitted she was adjudicated in civil contempt, and she was not entitled to the full procedural and evidentiary protections of a criminal contempt proceeding; (2) the Court of Appeals has already rejected the argument that a defendant should have been granted the full protections of a criminal contempt proceeding when the notice of hearing did not state whether the proceeding was criminal or civil; and (3) the contempt proceeding was<page_number>Page 56</page_number> clearly civil in nature, no relief of a punitive nature was ordered, and defendant had adequate notice of the proceeding.</block_quote> <bold>2. Contempt — civil — scope of hearing — due notice</bold> <block_quote> The trial court did not err in a civil contempt case by holding that defendant had due notice that the scope of the hearing would encompass issues related to the Chase and MBNA credit cards, because: (1) plaintiff's verified motion and the trial court's order to show cause read together constituted adequate notice to defendant that her inaction pertaining to the credit cards was alleged as a basis for contempt; (2) defendant did not object to the presentation of evidence on this issue at the contempt hearing, and defendant presented evidence relating to the credit card debt including offering exhibits; and (3) defendant's active participation in the hearing on this issue, without objection, defeated her contention that she was without notice.</block_quote> <bold>3. Contempt — civil — equitable distribution — failure to pay credit</bold> <bold>cards</bold> <block_quote> The trial court did not err by holding defendant in contempt for failure to comply with the court order in an equitable distribution case as it related to credit cards even though defendant contends the consent order merely required her to assume financial responsibility for the credit card debts, because: (1) the findings of fact pertaining to the credit card accounts are supported by competent evidence and are thus binding on the Court of Appeals; (2) nearly one year after the execution of the consent order, defendant failed to do the three things required of her by the consent order, and her obligation was to transfer the accounts into her name individually instead of removing plaintiff's name from the accounts; (3) the court clearly and unambiguously articulated what action defendant was required to undertake relating to the credit cards in order to purge herself of contempt; (4) the trial court properly ordered defendant to pay the credit card debt as the only means of forcing defendant to comply with the terms of the consent order; and (5) contrary to defendant's assertion, there was competent evidence in the record to support the court's finding that the Chase card ending in -9036 was defendant's responsibility.</block_quote> <bold>4. Contempt — civil — present ability to pay</bold> <block_quote> The trial court did not err in a civil contempt case by finding that defendant had the present means and ability to satisfy the<page_number>Page 57</page_number> credit card obligations, because: (1) the court found that defendant had in excess of $580,000 of equity in real estate in her name individually, and the court afforded defendant 90 days from the time of the contempt hearing on 5 June 2006 to comply with the order thus providing defendant an opportunity to sell the properties and acquire the funds to satisfy the order; and (2) prior findings of a present ability to pay may be res judicata as to future proceedings on that issue, and the court found that defendant had the ability to take reasonable measures to comply with the court order at the time of the 20 June 2006 contempt order.</block_quote> <bold>5. Contempt — civil — willful failure to execute joint tax returns</bold> <block_quote> The trial court did not err by holding defendant in civil contempt based on her failure to execute the parties' 2001 and 2002 joint tax returns, because: (1) defendant refused to sign 1040x forms for each tax year, and those forms were part of the process of filing the amended joint tax returns; (2) defendant's refusal to execute the forms was knowingly, deliberate, and part of a series of recalcitrant acts designed to frustrate the filing of amended joint tax returns required by the express terms of the consent order; and (3) although defendant contends the purpose of the consent order was no longer served by execution of these documents when the IRS had already disallowed the 2001 joint tax return and the deadline for filing the 2002 return passed five days prior to the contempt order, there was competent evidence that signing the forms would still accomplish the order's purpose since plaintiff's CPA testified that the signing would show the parties' due diligence when requesting an extension for the 2002 return from the IRS.</block_quote> <bold>6. Costs — attorney fees — expert witness fees — civil contempt</bold> <block_quote> Although the trial court's order in a civil contempt proceeding to enforce an equitable distribution consent order requiring defendant to pay attorney fees was proper, it was error for the court to assess an expert witness fee against defendant, and that portion of the order is reversed.</block_quote>

<bold>Costs — attorney fees — negligence</bold> — <bold><italic>Washington</italic></bold><bold> factors — credibility</bold> <block_quote> The trial court did not abuse its discretion in a negligence case arising out of an automobile accident by ordering defendant to pay $25,000 in attorney fees under N.C.G.S. § <cross_reference>6-21.1</cross_reference> following a jury award of $7,000 to plaintiff, because: (1) the trial court's<page_number>Page 156</page_number> order contains explicit findings of the majority of the factors in <italic>Washington v. Horton</italic>, <cross_reference>132 N.C. App. 347</cross_reference> (1999), including the lack of settlement offers prior to the filing of plaintiffs claim, offer of judgment made under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 68, and amounts of settlement offers relative to the jury's verdict; (2) the trial court stated the order was based on a review of the entire record, the court's first-hand acquaintance with the evidence presented, the observation of the parties, the witnesses, the attorneys involved, various other attendant circumstances, the affidavits of plaintiff's attorney, and the arguments for both parties; (3) the trial court included findings as to the service preformed by plaintiff's attorney during his representation of plaintiff and to the number of hours he spent on her claim, as well as his per hour charge including that the charge was customary for the area; and (4) the Court of Appeals cannot substitute its assessment of the credibility of the evidence for that of the trial judge when the record contained evidence that supported the version of events offered by both parties.</block_quote>

<bold>Juveniles — out of home placement — delegation of authority</bold> <block_quote> The trial court did not err by ordering a juvenile to participate in an out of home placement even though the juvenile contends the court impermissibly delegated its authority without designating the out of home placement, because: (1) the trial court ordered the juvenile to cooperate with an out of home placement and placed the juvenile in detention while said placement became available; and (2) while the trial court may have left the specific details of the out of home placement with New River Behavioral Health Care, it did not delegate its authority as to which dispositional alternatives were imposed in the new juvenile order.</block_quote>

<bold>Search and Seizure — motion to suppress evidence — vehicle stop — canine</bold> <bold>sniff of vehicle</bold> <block_quote> The trial court did not err in a possession with intent to sell or deliver marijuana and maintaining a vehicle for selling controlled substances case by denying defendant's motion to suppress evidence obtained as a result of a vehicle stop even though defendant contends the State lacked reasonable suspicion to conduct a dog sniff, because: (1) a dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment; (2) if the detention is prolonged for only a very short period of time, the intrusion is considered de minimis and as a result, even if the traffic stop has been effectively completed, the sniff is not considered to have prolonged the detention beyond the time reasonably necessary for the stop; (3) in this case the canine unit arrived prior to an officer giving defendant the warning ticket, the officer then explained that another officer was going to conduct a dog sniff of the exterior of defendant's car, it took the dog a minute and a half to complete the sniff, and the stop was extended only for the time necessary to explain about the dog sniff and the one-and-a-half minutes of the actual sniff; and (4) defendant chose on his own initiative to exit his car and talk with the police officer after the canine unit had already arrived, and defendant's own actions in leaving the car necessarily prolonged the stop for the modest period of time necessary to be frisked, to talk with the officer, and to return to his car.</block_quote><page_number>Page 452</page_number>

<bold>Zoning — subject matter — standing — separation of powers — procedural</bold> <bold>injury standing</bold> <block_quote> The trial court did not err by dismissing under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 12(b)(1) plaintiffs' complaint to enjoin development of the pertinent property until the county amends two of its ordinances, including adopting minimum criteria to be used in determining whether developers must prepare and submit an environmental impact assessment (EIA), based on lack of subject matter jurisdiction, because: (1) granting the relief requested would violate the doctrine of separation of powers since the adoption of minimum criteria by the county constituted a legislative function, and the judicial branch has no authority to direct a legislative body to enact legislation; and (2) although plaintiffs contend they have procedural injury standing, the remedies plaintiffs seek are unavailable and inappropriate, and their claims do not satisfy the third element of standing which is the redressability of their injury by a favorable decision.</block_quote><page_number>Page 492</page_number>

<bold>1. Termination of Parental Rights — combined with abuse hearings —</bold> <bold>reunification efforts futile or dangerous</bold> <block_quote> The trial court did not err by simultaneously conducting all adjudicatory and dispositional hearings related to both a child abuse and neglect petition and the termination of parental rights where the court found that reunification efforts would be dangerous or futile. The importance of clarity of findings and conclusions was emphasized.</block_quote> <bold>2. Termination of Parental Rights — reunification efforts not required —</bold> <bold>threat of harm to child</bold> <block_quote> The trial court properly complied with N.C.G.S. § <cross_reference>7B-507</cross_reference> in a child abuse and termination of parental rights proceeding where it did not require DSS to use reasonable efforts for reunification. The court found that the threat of harm to the child made it too dangerous to use reasonable efforts to reunify the child with respondent.</block_quote><page_number>Page 640</page_number> <bold>3. Termination of Parental Rights — basis — detailed findings of abuse</bold> <block_quote> The trial court did not err by finding and concluding that respondent's parental rights should be terminated. Although respondent contended that the termination was based on a felony child abuse charge, it is clear that the trial court based the termination on detailed findings and conclusions as to the ongoing, severe, and repeated abuse of the child.</block_quote> <bold>4. Termination of Parental Rights — best interests of child factors</bold> <block_quote> The trial court did not abuse its discretion by finding and concluding that it was in a child's best interests to terminate parental rights where the court properly considered the factors enumerated in N.C.G.S. § <cross_reference>7B-1110</cross_reference>(a).</block_quote>

<bold>1. Workers' Compensation — hearing loss — causal link to occupation — not</bold> <bold>established</bold> <block_quote> The Industrial Commission's conclusion in a workers' compensation case that a 911 dispatcher had not suffered an occupational hearing loss within the meaning of the statue was proper. Plaintiff did not establish a causal link between her hearing loss and her alleged workplace exposure.</block_quote> <bold>2. Workers' Compensation — hearing loss — findings — supported by</bold> <bold>evidence</bold> <block_quote> The findings of the Industrial Commission in a workers' compensation case involving hearing loss by a 911 dispatcher were supported by the evidence.</block_quote> <bold>3. Workers' Compensation — deputy commissioner's findings — consideration</bold> <bold>by full Commission</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case in its consideration of the deputy commissioner's findings of fact. The full Commission may weigh the same evidence that was presented to the deputy commissioner and decide for itself the weight and credibility of the evidence. It may even strike the deputy commissioner's findings entirely.</block_quote> <bold>4. Appeal and Error — notice of appeal — timeliness — direct appeal from</bold> <bold>agency — Rule 18</bold> <block_quote> The Court of Appeals had no jurisdiction over defendant's appeal in a workers' compensation case where the notice of appeal was not timely under Rule 18 of the Rules of Appellate Procedure. This is a direct appeal from an administrative agency rather than a civil case, so that it is governed by Rule 18 rather than Rule 3.</block_quote>

<bold>Pleadings — unverified pleading — affirmative defense — motion for</bold> <bold>summary judgment improper</bold> <block_quote> The trial court erred in an action to recover monies owed after defendants' default of a loan by granting summary judgment in favor of defendants, and the case is reversed and remanded to the trial court to hear the case on the merits, because: (1) a trial court may not consider an unverified pleading when ruling on a motion for summary judgment; (2) defendants' motion to amend their answer included an unverified amended answer asserting an additional affirmative defense; and (3) defense counsel argued this affirmative defense at the hearing on the parties' motions for summary judgment, and thus the trial court improperly granted defendants' motion for summary judgment based on the unverified pleading.</block_quote><page_number>Page 771</page_number>