Volume 188 — North Carolina Court of Appeals Reports

<bold>1. Zoning — superior court review of board of adjustment</bold> <bold>— standards of review</bold> <block_quote> Although the superior court employed both the whole record and de novo standards when reviewing a board of adjustment decision, the court properly separated the two standards and separately applied them to different issues.</block_quote> <bold>2. Zoning — apartment complex — special exception</bold> <bold>permit — evidence to rebut prima facie case — not</bold> <bold>substantial</bold> <block_quote> The superior court correctly concluded that the evidence presented to the Weaverville Board of Adjustment rebutting petitioner's prima facie entitlement to a special exception permit for an apartment complex was not supported by competent, material and substantial evidence. At the public hearing, the opponents based their conclusions solely upon their own observations and opinions without providing any expert opinion to quantitatively link their observations to the Boards' denial of the permit.</block_quote> <bold>3. Zoning — denial of permit — arbitrary and</bold> <bold>capricious — insufficient supporting evidence</bold> <block_quote> A board of adjustment acted arbitrarily and capriciously in denying a special exception permit to build an apartment complex where there was no competent, material and substantial evidence in the whole record to support the board's conclusion.</block_quote>

<bold>1. Hospitals — certificate of need — earlier</bold> <bold>certificate — hospital not built</bold> <block_quote> The Certificate of Need section of the Department of Health and Human Services did not err by approving Harnett Health's application for a certificate for a new hospital where petitioner alleged that the Agency did not consider its earlier certificate of need. Petitioner's position assumes that the Agency had no authority to conclude, based on the available evidence, that petitioner was not going to build the hospital permitted by its prior certificate of need.</block_quote> <bold>2. Hospitals — certificate of need — CT scanner</bold> <bold>— rule not valid as applied</bold> <block_quote> The Certificate of Need section of the Department of Health and Human Services did not err by adopting the action of the administrative law judge voiding an administrative rule as applied to a CT scanner. N.C.G.S. § <cross_reference>150B-33</cross_reference>(b) allows the agency to determine that a rule as applied in a particular case is void when the rule is not reasonably necessary in a particular case to enable the agency to fulfill its duty.</block_quote><page_number>Page 69</page_number>

<bold>1. Discovery — expert testimony regarding</bold> <bold>substance in defendant's shoe — harmless error</bold> <block_quote> The trial court committed harmless error in a double misdemeanor possession of up to one-half ounce of marijuana, possession of drug paraphernalia, and possession of a controlled substance on the premises of a local confinement facility case by allowing the State to introduce expert testimony by an SBI agent regarding the substance in defendant's shoe in violation of discovery requirements under N.C.G.S. § <cross_reference>15A-903</cross_reference>(a)(2), because: (1) althought the trial court determined the agent would not be testifying as an expert concerning the substance found in the<page_number>Page 222</page_number> shoe, the agent's testimony at trial regarding his education, training, and experience in forensic analysis revealed the agent was testifying as an expert witness; (2) defendant was not prejudiced by the expert testimony since two officers testified that based upon their training and experience, they believed marijuana was the substance found in defendant's shoe; and (3) defendant should have anticipated this evidence and should not have been unfairly surprised by the agent's testimony since he was charged with one count of possession of a controlled substance on the premises of a local confinement facility, and he knew the two officers would testify about the substance found in his shoe at the sheriff's department.</block_quote> <bold>2. Drugs — possession of controlled substance on</bold> <bold>premises of local confinement facility — motion to</bold> <bold>dismiss — sufficiency of evidence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of possession of a controlled substance on the premises of a local confinement facility because: (1) contrary to defendant's assertion, the Court of Appeals has never concluded the State must prove the offense occurred in an area accessible only to officers and their detainees in order for the area to be determined a local confinement facility under N.C.G.S. § <cross_reference>90-95</cross_reference>(e)(9); and (2) after defendant was taken before a magistrate, he was taken to the sheriff's department, a local confinement facility, as standard procedure to be processed since he was given a secured bond.</block_quote> <bold>3. Drugs — multiple counts of possession of</bold> <bold>marijuana — simultaneous possession and same purpose</bold> <block_quote> The Court of Appeals determined ex mero motu that the trial court erred by denying defendant's motions to dismiss and entering judgments against him for three counts of possession of marijuana including misdemeanor possession of up to one-half ounce of marijuana found in an officer's automobile, misdemeanor possession of up to one-half ounce of marijuana found in his shoe, and felony possession of marijuana on the premises of a local confinement facility, and defendant's convictions of the lesser two offenses should be arrested, because: (1) all three counts arose from one continuous act of possession; (2) in regard to the misdemeanor possession charges, there was no evidence that defendant possessed the marijuana for two distinct purposes, and defendant possessed both the marijuana in the automobile and in<page_number>Page 223</page_number> his shoe simultaneously; (3) the State presented no evidence showing defendant came into possession of the marijuana in his shoe after he was arrested; and (4) an officer testified that both amounts of marijuana in the automobile and the shoe would have been discovered at the scene had an adequate search of defendant been conducted.</block_quote> <bold>4. Sentencing — habitual felon status —</bold> <bold>facially defective indictment — stipulation</bold> <block_quote> The trial court lacked subject matter jurisdiction to accept and enter defendant's plea to attaining habitual felon status based on a facially defective indictment, and the case is remanded for resentencing based on this issue, because: (1) the indictment failed to set forth three predicate felony offenses as required by N.C.G.S. § <cross_reference>14-7.1</cross_reference> since defendant's conviction in New Jersey was considered a high misdemeanor and not a felony; (2) defendant did not waive his right to appeal since the issue he raised, that the indictment failed to include each of the elements specified in § <cross_reference>14-7.3</cross_reference>, is jurisdictional and may be raised at any time; and (3) defense counsel's stipulation to the three convictions set out in the habitual felon indictment, even though the New Jersey conviction was not a felony, has no bearing on whether the indictment was valid since generally parties may not stipulate as to what the law is.</block_quote>

<bold>1. Cities and Towns — conditional use permit —</bold> <bold>construction of correctional facility — whole record</bold> <bold>test</bold> <block_quote> The trial court did not err by affirming the City of Concord's grant of a conditional use permit (CUP) to Cabarrus County for the construction of a Law Enforcement Center (LEC), including a jail, adjacent to downtown Concord based on its determination that the City had presented competent, material, and substantial<page_number>Page 279</page_number> evidence that the planned LEC met the City's ordinance standard relating to its conforming with the surrounding residential homes, because: (1) the LEC will conform in use inasmuch as many of the buildings in the neighborhood involve governmental activities; (2) witnesses testified that the jail and the sheriff's office is and has historically been located in downtown Concord adjacent to the courthouse and has always been a member of the neighborhood; (3) the portion of the LEC that is zoned as residential compact, immediately adjacent; to some of petitioners' homes, will not be developed; (4) testimony was presented that the historical use, size, and style of the proposed buildings match the existing buildings in the city center zoning district; and (5) the whole record test does not allow the reviewing court to replace the board's judgment as between two reasonably conflicting views even though the court could justifiably have reached a different result had the matter been before it de novo.</block_quote> <bold>2. Cities and Towns — conditional use permit —</bold> <bold>construction of correctional facility — arbitrary and</bold> <bold>capricious standard</bold> <block_quote> The City Council's decision granting a conditional use permit to Cabarrus County for the construction of a Law Enforcement Center, including a correctional facility, adjacent to downtown Concord was not arbitrary or capricious because: (1) there was no evidence the Council's decision was whimsical or taken in bad faith; (2) the Council held a hearing on the issue where it received sworn testimony and evidence; and (3) the fact that the evidence could have supported a different outcome does not lend support to petitioners' argument that the Council acted in an arbitrary and capricious manner.</block_quote>

<bold>1. Collateral Estoppel and Res Judicata — dismissal</bold> <bold>of action — sovereign immunity — adjudication</bold> <bold>on merits — subsequent constitutional claims</bold> <bold>barred</bold> <block_quote> An action by plaintiff student who was inured on her way to a school bus stop against defendant county board of education based upon alleged state constitutional violations of her rights to due process and equal protection was barred by res judicata where plaintiff's prior action against defendant board for negligence, breach of fiduciary duty, and constructive fraud was dismissed on the ground of sovereign immunity because: (1) dismissal of the prior action on the ground of sovereign immunity operated as an adjudication on the merits; (2) plaintiff's constitutional claims could have been brought in the original action, but<page_number>Page 442</page_number> plaintiff failed to amend her complaint to allege those claims; (3) the parties were identical in both actions; and (4) the claims in the second action related to the same facts as the claims in the original action.</block_quote> <bold>2. Pleadings — Rule 11 sanctions — complaint</bold> <bold>well-grounded in fact and warranted by existing law or</bold> <bold>good faith argument for extension, modification or</bold> <bold>reversal of existing law</bold> <block_quote> The trial court in a student's action against a county board of education based upon state constitutional claims erred by sanctioning plaintiff's attorneys under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 11, because plaintiff's complaint was well-grounded in fact and was warranted by existing law or a good faith argument for the extension, modification or reversal of existing law when: (1) the trial court mischaracterized plaintiff's claim, and thus the pertinent finding of fact and conclusion of law were not supported by the evidence; (2) the trial court's finding of fact that the evidence presented to the trial court that defendant board of education had insurance to cover the claims in each of those cases was not supported by the evidence; (3) plaintiff's attorneys performed a reasonable inquiry into the facts and did reasonably believe that the complaint was well-grounded in fact including checking the public record whereupon the attorneys discovered three cases in which male plaintiff's had sued defendant, had not alleged in their complaints that defendant had waived sovereign immunity by the purchase of insurance, and defendant settled those cases; and (4) Rule 11 sanctions are inappropriate when the issue raised by a plaintiff's complaint is one of first impression, and no case had specifically held that a dismissal on grounds of sovereign immunity was a final adjudication on the merits barring subsequent actions.</block_quote>

<bold>1. Evidence — drunken driving accident —</bold> <bold>defense testimony that defendant driving —</bold> <bold>irrelevant</bold> <block_quote> In a prosecution arising from an automobile accident and death involving drunken driving, the trial court did not err by excluding as irrelevant testimony from two defense witnesses who had been told by a passenger that defendant was the driver. The testimony does not create even an inference that the passenger was driving the car and is not inconsistent with the guilt of defendant.</block_quote> <bold>2. Sentencing — aggravating factor — use of</bold> <bold>weapon hazardous to more than one person —</bold> <bold>automobile</bold> <block_quote> The trial court did not err in a prosecution arising from a death involving drunken driving by submitting the aggravating factor that defendant knowingly created a great risk of death to more than one person by means of a device normally hazardous<page_number>Page 554</page_number> to the lives of more than one person. It is well settled that this aggravating factor is proper within the context of motor vehicle collisions caused by intoxicated drivers.</block_quote> <bold>3. Sentencing — prosecutor's closing argument — not</bold> <bold>prejudicial</bold> <block_quote> There was no prejudicial error from the prosecutor's closing argument in defendant's sentencing for involuntary manslaughter and other offenses arising from an automobile accident involving driving. The argument involved the sentencing grid and a discussion of the merger doctrine, and its clear import was to ask the jury to find the aggravator so that the court could impose a higher sentence. While the trial court abused its discretion in allowing the argument, there was overwhelming evidence that defendant was operating his vehicle at a dangerously high rate of speed while illegally intoxicated, and no reasonable possibility of a different result without the instruction.</block_quote> <block_quote> Judge ARROWOOD concurs in part, and concurs in the result in part.</block_quote>

<bold>Evidence — exclusionary rule — officer's</bold> <bold>eyewitness account of events after unlawful entry —</bold> <bold>not barred</bold> <block_quote> The trial court did not err by denying defendant's motion to suppress evidence of an assault on an officer with a firearm inside a house. The officers' entry was with the permission of the spouse who was outside the house but against the express wishes of the spouse inside the house with the firearm. Even if the entry was unlawful, the exclusionary rule does not bar an officer's eyewitness account of events after the entry.</block_quote>

<bold>1. Workers' Compensation — settlement agreement</bold> <bold>— failure to include required biographical and vocational</bold> <bold>information</bold> <block_quote> The Industrial Commission erred in a workers' compensation case by failing to set aside a compromise settlement agreement based on a failure to comply with Industrial Commission Rule 502, and the case is reversed and remanded to the full Commission to enter an order vacating the approval of the agreement and for further proceedings as necessary, because: (1) plaintiff had not returned to work and was unrepresented at the time he entered into the agreement on 1 November 2004, and thus, the more specific requirements of Rule 502(2)(h) applied to the agreement; (2) defendants admit the agreement did not contain the required information including plaintiff's age, educational level, past vocational training, or past work experience, nor did it contain a certification that plaintiff was not claiming total wage<page_number>Page 687</page_number> loss due to his injury; (3) it was statutorily impermissible for the Commission to approve the agreement without the required biographical and vocational information when the statute states the required terms must be in the agreement itself in order to be approved; (4) while one purpose of Rule 502(2)(h) may be, as defendants contend, to make sure the Industrial Commission is privy to the information required by the rule, the rule also serves to ensure that an injured worker understands what he is signing off on and agreeing to; (5) the special deputy commissioner did not have all the information required by Rule 502(h)(2) when she did not receive a reply from plaintiff and did not verify with plaintiff the information contained in defense counsel's memo before approving the agreement; and (6) although the Commission could have approved the agreement without the language concerning plaintiff's biographical and vocational information had plaintiff certified in the agreement that he was not claiming total wage loss due to his injury, neither party disputed that the agreement contained no such certification. Further, the Court of Appeals did not need to determine whether the agreement should have been set aside under Rule 502(3)(a) based on the omission of medical records since the agreement should have been set aside for failure to contain all of the requirements of Rule 502(2)(h).</block_quote> <bold>2. Workers' Compensation — settlement agreement</bold> <bold>— Commission's failure to undertake full investigation to</bold> <bold>determine fairness</bold> <block_quote> The Industrial Commission erred in a workers' compensation case by failing to set aside a compromise settlement agreement based on the full Commission's failure to undertake a full investigation to determine if it was fair and just as required by N.C.G.S. § <cross_reference>97-17</cross_reference>, and the case is reversed and remanded to the full Commission to enter an order vacating the approval of the agreement and for further proceedings as necessary, because: (1) plaintiff was unrepresented and unaware at the time of settling of his case that, under the law, he was entitled to the most favorable remedy available to him including total disability benefits if he was totally disabled; (2) the special deputy commissioner assumed, rather than determined, that plaintiff was knowledgeable about workers' compensation benefits, and particularly, his potential right to claim ongoing total disability benefits during the vocational rehabilitation process even beyond the 300 weeks or permanent total disability compensation under<page_number>Page 688</page_number> N.C.G.S. § <cross_reference>97-29</cross_reference> if he were never able to return to suitable employment; (3) while it is not incumbent upon an insurance adjuster to explain the law to an unwitting claimant, the Industrial Commission must stand by to assure fair dealing in any voluntary settlement; (4) a full investigation into the fairness of the agreement necessarily required the special deputy commissioner to verify defense counsel's assertions regarding plaintiff's position on vocational rehabilitation and ability to return to work since the criterion for compensation in cases covered by N.C.G.S. §§ <cross_reference>97-29</cross_reference> or <cross_reference>97-30</cross_reference> is the extent of the claimant's incapacity for work; and (5) although defendants contend there was no evidence that plaintiff is totally disabled other than plaintiff's contentions regarding his inability to work, the evidence revealed otherwise.</block_quote>

<bold>1. Libel and Slander — political campaign —</bold> <bold>rhetorical hyperbole and opinion</bold> <block_quote> Statements in a political campaign did not support a claim of defamation per se where they were either matters of personal opinion or rhetorical hyperbole no reasonable reader would believe.</block_quote> <bold>2. Constitutional Law — statements in political</bold> <bold>campaign" not shielded</bold> <block_quote> Statements in a political campaign (which were not defamatory per se) were not constitutionally shielded; defendant was not free to make whatever assertions it desired.</block_quote> <bold>3. Unfair Trade Practices — political campaign</bold> <bold>— underlying defamation claim — without merit</bold> <block_quote> A claim for unfair and deceptive trade practices arising from statements made in a political campaign was correctly dismissed where the underlying defamation claim was correctly dismissed and there were no other allegations of tortious conduct.</block_quote>

<bold>1. Associations — homeowners association —</bold> <bold>North Carolina Planned Community Act — declaration</bold> <bold>— powers — levy of fines — foreclosure on</bold> <bold>claim of lien</bold> <block_quote> The trial court erred by finding as fact that the pertinent declaration of covenants did not permit the levying of fines as a means of enforcing its terms and that petitioner homeowners association did not have the power to foreclose on a claim of lien, because: (1) the North Carolina Planned Community Act under N.C.G.S. § <cross_reference>47F-3-102</cross_reference> was amended effective 17 July 2004 to<page_number>Page 838</page_number> remove the permissive words "subject to" and replaced with explicit language stating that a homeowners association may exercise the listed powers unless its articles of incorporation or declaration expressly provided to the contrary; (2) the Court of Appeals has previously determined that the retroactive application of the revised statute does not violate the contract clause of the United States Constitution; (3) petitioner was created before 1 January 1999 and its articles of incorporation and declaration do not expressly provide that it may not fine residents who violate its rules and regulations; and (4) all of the events in question occurred after 17 July 2004 when the Act was amended.</block_quote> <bold>2. Notice — foreclosure hearing — waiver</bold> <bold>— presence and participation in hearing</bold> <block_quote> The trial court erred in a case involving foreclosure on a claim of lien by concluding as a matter of law that respondent homeowner received improper notice and that respondent's actual notice of the hearing was irrelevant, because: (1) when the record shows that a party to a foreclosure hearing was present at the hearing and participated in it, it is well-settled that a party entitled to notice may waive notice in this way; and (2) the record and the order in the instant case revealed that respondent waived notice in that manner when she was present at the hearing and participated in it.</block_quote>