Volume 190 — North Carolina Court of Appeals Reports

<bold>1. Associations; Schools and Education — standing — nonprofit</bold> <bold>organization — associational basis inapplicable</bold> <block_quote> Wake Cares, Inc., a nonprofit organization, did not have associational standing to bring a declaratory judgment action challenging a county board of education's plan to convert traditional calendar schools to year-round schools and then to assign students to those schools on a mandatory basis because the organization has no members and could not seek relief "on behalf of its members." Furthermore, the organization could not rely on<page_number>Page 2</page_number> the constituency theory of <italic>Hunt v. Washington State</italic> <italic>Apple Adver. Comm'n</italic>, <cross_reference>432 U.S. 333</cross_reference> (1977), to establish standing where it made no attempt to show that it meets the constituency test of that case.</block_quote> <bold>2. Declaratory Judgments; Schools and Education — standing — challenge to</bold> <bold>mandatory year-round schools — parents of students</bold> <block_quote> The individual plaintiffs, parents of public school students, have standing to bring a declaratory judgment action individually and as guardians ad litem of their children challenging a county board of education's plan to assign students to year-round schools on a mandatory basis because the individual plaintiffs were directly affected by the board's action where each of the students was initially assigned to a year-round school, and even though some of the students were ultimately reassigned to traditional calendar schools, they may still be assigned to year-round schools in the future.</block_quote> <bold>3. Declaratory Judgment; Schools and Education — subject matter</bold> <bold>jurisdiction — exhaustion of administrative remedies</bold> <block_quote> The trial court did not err by denying the board of education's motion to dismiss plaintiffs' complaint for a declaratory judgment based on an alleged failure to exhaust administrative remedies because: (1) N.C.G.S. § <cross_reference>115C-369</cross_reference> provides no means for determining whether a plan for mandatory year-round schools is statutorily or constitutionally permitted; (2) the statute focuses on the individual assignment of a student and would not supply the relief sought in plaintiffs' complaint regarding the board's plan and regulations; and (3) the board has not pointed to any other statute that would provide an administrative remedy encompassing that sought by plaintiffs.</block_quote> <bold>4. Appeal and Error — appealability — mootness</bold> <block_quote> The trial court did not err in a declaratory judgment action by concluding that plaintiffs' challenge to defendant board of education's plan to assign public school students to year-round schools on a mandatory basis was not rendered moot even though all the plaintiffs who were initially assigned to a year-round school under its 2007-2008 assignment plan and subsequently applied for transfer had been reassigned to a traditional calendar or magnet<page_number>Page 3</page_number> school because plaintiffs' individual reassignments do not terminate the uncertainty and controversy giving rise to this action as would a declaration that the board does or does not have the authority to implement the plan.</block_quote> <bold>5. Appeal and Error — preservation of issues — failure to argue at trial</bold> <bold>— failure to cross-assign error</bold> <block_quote> Although plaintiffs contend the trial court's order in a declaratory judgment action should be affirmed based on the rhetoric of constitutional rights, this argument is not properly before the appellate court because: (1) the trial court based its decision solely on the board of education's lack of statutory authority and its conclusion that mandatory year round schools are not authorized under the law; and (2) plaintiffs did not cross-assign error on the grounds that those constitutional arguments present alternative bases for upholding the trial court's decision.</block_quote> <bold>6. Schools and Education — board of education's authority — operation of</bold> <bold>year-round schools</bold> <block_quote> Local boards of education have the authority to create and operate year-round schools because: (1) in the scheme of public education adopted by the General Assembly, the general control and supervision of all matters pertaining to the public schools in their respective administrative units is delegated to the county and city boards of education subject to any paramount powers vested by law in the State Board of Education or any other authorized agency; (2) the General Assembly has also set out a list of specific powers and duties vested in local school boards under N.C.G.S. § <cross_reference>115C-47</cross_reference> including granting local school boards broad authority to set the school calendar in accordance with N.C.G.S. § <cross_reference>115C-84.2</cross_reference>, which in turn encourages local school boards to consider calendar flexibility as a means of achieving educational standards; and (3) the express language exempting year-round schools from the calendar-design restrictions demonstrated that the General Assembly recognized a year-round calendar as a valid alternative to the traditional calendar.</block_quote> <bold>7. Schools and Education — assignment of students to year — round schools</bold> <bold>— informed parental consent not required</bold> <block_quote> The trial court erred by concluding the local board of education may not assign students to year-round schools without informed parental consent because: (1) the conclusion is precluded by N.C.G.S. § <cross_reference>115C-366</cross_reference>(b); (2) the only restrictions<page_number>Page 4</page_number> placed on a board's assignment authority are set forth in N.C.G.S. § <cross_reference>115C-367</cross_reference> which prohibits local school boards from assigning students to a given school on account of race, creed, color or national origin; (3) the board has the authority to operate schools in the county school system on a year-round calendar, and thus N.C.G.S. § <cross_reference>115C-366</cross_reference>(b) grants full and complete authority to the board to assign children to such schools; (4) there was no contention that plaintiffs are being denied equal access to a sound basic education by being assigned to year-round calendar schools, and thus, N.C.G.S. § <cross_reference>115C-1</cross_reference> does not provide plaintiffs with a right to equal opportunity to attend a school with a traditional calendar; (5) N.C.G.S. § <cross_reference>115C-84.2</cross_reference> does specifically exempt year-round schools from the statute's requirement regarding opening and closing dates of school calendars, and the apparent protection of a teacher's summer vacation; (6) the language of N.C.G.S. § <cross_reference>115C-84.2</cross_reference> is clear, and thus legislative history cannot be relied upon to force a construction on that statute inconsistent with the plain language; (7) the trial court's and plaintiffs' legislative history analysis overlooks the General Assembly's adoption in 1997 of the exemption for year-round schools in the calendar limitation regarding teacher vacation days; (8) neither the trial court nor plaintiffs have presented any other statutory basis for a requirement of informed parental consent prior to assignment of a child to a year-round school; (9) a duty to consult under N.C.G.S. § <cross_reference>115C-84.2</cross_reference>(a) cannot be changed to impose a duty to obtain consent; and (10) under N.C.G.S. § <cross_reference>115C-366</cross_reference>(b), when a local school board exercises its full and complete authority to assign a student to a year-round school, that decision is final subject only to an application by the student under N.C.G.S. § <cross_reference>115C-369</cross_reference> for reassignment.</block_quote>

<bold>Police Officers; Damages and Remedies — negligence — public duty doctrine</bold> <bold>— special duty exception — punitive damages</bold> <block_quote> In an action against a town and two town police officers under the special duty exception to the public duty doctrine to recover for the wrongful death of plaintiff's daughter who was murdered by plaintiff's estranged husband, plaintiff's forecast of evidence was sufficient to establish a genuine issue of material fact as to whether defendants' conduct was willful or wanton so<page_number>Page 151</page_number> as to preclude the entry of summary judgment for defendants on the issue of punitive damages where it showed that defendants failed to enforce a domestic violence protective order plaintiff had against her estranged husband; defendant officers knew that the husband had acted violently against plaintiff in the past, that he continued to make threats against her and her children, and that she was actively seeking enforcement of the order against him; plaintiff pointed out her estranged husband to the officers while he was violating the protective order; the officers responded by promising to arrest the husband and leaving; and the officers failed to arrest the husband as promised and therefore placed plaintiff and her children in extreme danger.</block_quote>

<bold>1. Criminal Law — prosecutor's arguments — evidence outside record —</bold> <bold>abuse of discretion standard</bold> <block_quote> The trial court did not abuse its discretion in a second-degree rape case by allowing some improper statements made by the prosecutor during closing arguments to the jury that were outside the record because: (1) in light of the substantial evidence against defendant, as well as the charge to the jury that would have had a curative effect in mitigating the State's improper remarks, the remarks were not of such a magnitude that their inclusion prejudiced defendant; and (2) our appellate courts presume that jurors follow the trial court's instructions.</block_quote> <bold>2. Rape; Sexual Offenses — second-degree rape — sex offender registration</bold> <bold>— satellite monitoring</bold> <block_quote> The trial court did not err in a second-degree rape case by allegedly ordering defendant to register as a sex offender and to enroll for lifetime monitoring in the State's satellite registration program immediately upon entry of the judgment because: (1) to the extent defendant objects to being required to register as a sex offender immediately upon judgment entered against him, the trial court did not actually order defendant to register as a sex offender when the pertinent form was not signed by the trial court and was only applicable to defendants who did not receive active terms of imprisonment, and there was no oral order requiring defendant to register as a sex offender; (2) in regard to life-time monitoring, the requirement for defendant to register will automatically go into effect upon his release from prison at the same time the order to enroll in the monitoring program goes into force according to its terms; and (3) to the extent defendant's argument concerns the way in which the monitoring will be conducted, that issue was not yet ripe for review since the program was new, and thus commenting on the substance of the policies and procedures of the program would involve mere speculation.</block_quote>

<bold>Child Support, Custody, and Visitation — child support — affidavit of</bold> <bold>parentage — Rule 60(b) motion</bold> <block_quote> The trial court did not abuse its discretion in a child support case by granting defendant's N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 60(b) motion to set aside the 21 April 2006 order that adjudicated him the father of a minor child even though plaintiff contends defendant<page_number>Page 189</page_number> exceeded Rule 60(b)'s one-year time limit since he brought his motion on 11 May 2006 and he executed an affidavit of parentage on 26 July 2003 nearly three years earlier, because: (1) Rule 60(b) provides that a party must bring a motion under subparts (1)-(3) not more than one year after the judgment, order, or proceeding was entered or taken, and plaintiff acknowledged that the affidavit of parentage was not filed until 10 June 2005; (2) the one-year limit did not begin to run until 10 June 2005, and thus defendant filed the motion within the one-year time limit; and (3) the one-year clock begins to run only after an affidavit of paternity has been filed and some judgment, order, or proceeding was entered or taken by a court, and not from the day that a putative father executes an affidavit of parentage.</block_quote>

<bold>1. Appeal and Error — preservation of issues — failure to argue</bold> <block_quote> Eight assignments of error for which defendant failed to present arguments in his brief are deemed abandoned under N.C. R. App. P. 28(a).</block_quote><page_number>Page 194</page_number> <bold>2. Probation and Parole — revocation of probation — hearing within tolled</bold> <bold>probationary period</bold> <block_quote> The trial court did not lack subject matter jurisdiction to revoke defendant's probation on 4 April 2007 even though defendant contends the probationary periods expired prior to the court's entry of the probation revocation orders because: (1) N.C.G.S. § <cross_reference>15A-1344</cross_reference>(d) provides, in part, that the probation period shall be tolled if the probationer shall have pending against him criminal charges in any court of competent jurisdiction, which, upon conviction, could result in revocation proceedings against him for violation of the terms of this probation, and there was evidence in the record that defendant had criminal charges pending against him during his probation as of the 4 April hearing including defendant's own testimony and other evidence in the record; and (2) defendant's probationary periods under file numbers 04 CRS 52952, 05 CRS 50050, and 05 CRS 50052 did not expire prior to the 4 April 2007 hearing, but instead tolled, and thus, the 4 April hearing was conducted during defendant's probation.</block_quote>

<bold>Obstruction of Justice — filing false report to police — failure to show</bold> <bold>unlawful purpose</bold> <block_quote> The trial court erred by denying defendant's motion to dismiss the charge of filing a false report to the police because: (1) under North Carolina law, filing a false report to the police is not a crime by itself, but instead the false report is unlawful only if made for the purpose of hindering or obstructing the officer in the performance of his duties; and (2) the State failed to present any evidence that defendant filed a false report with that unlawful purpose.</block_quote>

<bold>1. Statutes of Limitation and Repose — underinsured motorists coverage —</bold> <bold>filing of action not timely</bold> <block_quote> The trial court did not err when it granted State Farm's motion to dismiss defendants' counterclaim in an action to declare the rights between the parties regarding underinsured motorists coverage in an action arising from an automobile accident. Undisputed evidence shows that defendants failed to file their counterclaims within the applicable three-year statute of limitations.</block_quote> <bold>2. Insurance — uninsured motorist coverage — summary judgment for</bold> <bold>insurance company</bold> <block_quote> There was no genuine issue of material fact about whether defendants had underinsured motorists coverage at the time of an accident, and the court did not err when it granted the insurance company's motion for summary judgment.</block_quote>

<bold>1. Appeal and Error — violations of Rules — raised in brief — not</bold> <bold>considered</bold> <block_quote> Defendant's argument that plaintiff's appeal should be dismissed because of violations of the Rules of Appellate Procedure was not addressed where defendant attempted to raise this motion in a brief rather than in accordance with Rule 37 of the Rules of Appellate Procedure.</block_quote> <bold>2. Insurance — replacement value of widow's house — equitable reform of</bold> <bold>policy — denied</bold> <block_quote> Plaintiff did not provide a factual basis to support equitable reformation of an insurance policy on a house destroyed by a fire where she had requested fifteen years earlier that she be provided with the same insurance her deceased husband had carried, there was no evidence of any action by defendants to change from the type and amount of coverage that had been provided to the husband, the coverage was regularly adjusted for inflation and was for more than 92% of the home's value according to an appraisal less than two years before the fire, the coverage amount was clearly stated on the face of the policy, and there is no evidence that plaintiff was not able to understand the policy.</block_quote> <bold>3. Insurance — fiduciary duty of agent to procure policy — previous</bold> <bold>policy continued — summary judgment for agent</bold> <block_quote> Summary judgment was properly granted for defendant-insurance agent on a claim that he had breached a fiduciary duty to procure insurance for plaintiff that covered the replacement cost of her home. There was no evidence (except evidence from plaintiff's affidavit which was disregarded) that the agent gave an affirmative assurance to procure an insurance policy, other than to renew the policy plaintiff's deceased husband had purchased, and there is no evidence that the deceased husband had purchased a policy other than the one in effect on the date of the fire.</block_quote><page_number>Page 533</page_number> <bold>4. Unfair Trade Practices — insurance coverage — no evidence of damages</bold> <bold>— summary judgment for defendant</bold> <block_quote> The trial court did not err by granting summary judgment for defendants on a claim for unfair and deceptive trade practices arising from the insurance coverage of a house fire where plaintiff did not forecast evidence that she was injured by any unfair or deceptive act on the part of defendants.</block_quote>

<bold>1. Appeal and Error — preservation of issues — sufficiency of evidence</bold> <block_quote> Although the State contends respondent juvenile waived review of the sufficiency of the evidence against her for the offense of disorderly conduct in a school, her counsel's vigorous argument, after resting her case, that the evidence was insufficient to support the charged offense was sufficient to preserve respondent's right to review.</block_quote> <bold>2. Juveniles — delinquency — burden of proof — motion to dismiss</bold> <block_quote> The trial court did not err in a juvenile delinquency case by allegedly failing to adjudicate a juvenile based on proof beyond a reasonable doubt when the written order stated the facts were proven beyond a reasonable doubt whereas the trial court's oral statements indicated it was considering the evidence in the light most favorable to the State, because although the court ultimately determines the existence of proof beyond a reasonable doubt of respondent's guilt, in considering a motion to dismiss, the evidence is examined in the light most favorable to the State.</block_quote> <bold>3. Juveniles — delinquency — disorderly conduct in school — sufficiency</bold> <bold>of evidence</bold> <block_quote> The trial court erred in a juvenile delinquency case by concluding there was sufficient evidence of respondent juvenile's guilt of disorderly conduct in a school because: (1) while appellate courts tend to uphold juvenile adjudications for disorderly conduct in school when there is evidence of the use of vulgar language by the student, aggressive or violent behavior by the juvenile, or disruptive behavior serious enough to require the student's teacher to leave the class unattended in order to discipline the student, adjudications have been reversed where the evidence shows no more than ordinary misbehavior or rule-breaking; (2) viewing the evidence in the light most favorable to the State in the instant case revealed that respondent and a friend were walking in the hall when they should have been in class; when asked to stop, they instead grinned, giggled, and ran<page_number>Page 580</page_number> down the hall; respondent was stopped by the school resource officer after a brief chase down the hall; and a few students and teachers looked out into the hall while the resource officer was escorting respondent to the school office; (3) there was no evidence that the school or classroom instruction was substantially disrupted, that respondent was aggressive or violent, or that respondent used disturbing or vulgar language, but instead respondent and her friend were described several times as giggling or smiling; and (5) although respondent's behavior was an annoyance to the school administrator, it did not rise to the level of criminal activity.</block_quote>

<bold>Evidence — judicial admission — prior testimony repudiated allegations</bold> <bold>and affidavit — summary judgment</bold> <block_quote> The trial court did not err in an action arising out of an automobile accident by granting summary judgment in favor of defendants when defendants' motion alleged that plaintiff passenger previously had provided sworn testimony that decedent driver Henley was not negligent in the operation of her motor vehicle that resulted in plaintiff's injuries, and in response plaintiff filed an affidavit alleging facts that directly contradicted his prior testimony, because: (1) plaintiff's prior testimony unequivocally and unambiguously repudiated the allegations in his complaint and affidavit; and (2) plaintiff's statements constitute judicial admissions by which he is bound.</block_quote>

<bold>Bail and Pretrial Release — forfeiture of appearance bond — motion to set</bold> <bold>aside — printouts of jail records — evidence not sufficient</bold> <block_quote> The trial court erred by setting aside a forfeiture of an appearance bond where the surety presented only printouts of records from the sheriff's office that did not support the finding that defendant was incarcerated in a unit of the North Carolina Department of Correction or is in a unit of the Federal Bureau of Prisons within North Carolina. A county jail is not a unit of the Department of Correction and deportation is not listed as one of the six exclusive grounds that allow the court to set aside a bond forfeiture. N.C.G.S. § <cross_reference>15A-544.5</cross_reference>(b).</block_quote>

<bold>1. Medical Malpractice — Rule 9(j) — witness</bold> <bold>not willing to testify — no good faith exception</bold> <block_quote> The trial court did not err by dismissing a medical malpractice claim for failure to comply with Rule 9(j) where it was clear that the potential expert witness was not willing to testify that the applicable standard of care was not met. Rule 9(j) does not contain a good faith exception.</block_quote> <bold>2. Medical Malpractice — res ipsa loquitur —</bold> <bold>not sufficiently alleged</bold> <block_quote> Plaintiff failed to state a res ipsa loquitur claim, and the trial correctly dismissed his action under Rule 9(j), where the allegations did not demonstrate that proof of the cause of the injury was not available, the instrument involved was in the exclusive control of defendant, or that the injury would not normally occur in the absence of negligence.</block_quote> <bold>3. Medical Malpractice — motion to amend complaint</bold> <bold>to substitute expert witness — review of records required</bold> <bold>before filing</bold> <block_quote> The trial court did not err by denying plaintiffs motion to amend a medical malpractice complaint to substitute a new expert witness where the medical care had not been reviewed by a potential expert witness prior to the filling of the complaint. The review must occur before the filing to withstand dismissal.</block_quote>

<bold>1. Criminal Law — insanity — no hearing</bold> <bold>— positive mental health examination — courtroom</bold> <bold>demeanor indicating competence</bold> <block_quote> The trial court did not err by failing to conduct a hearing on an armed robbery defendant's capacity to proceed where he had filed a pro se notice of intent to rely on insanity, defendant's attorney later requested a continuance for a mental health examination, a mental health professional found defendant competent, no one requested a hearing on competence, and defendant's actions and courtroom behavior did not indicate incompetence.</block_quote> <bold>2. Constitutional Law — right to self-representation</bold> <bold>— desire not clearly expressed</bold> <block_quote> The trial court did not err in an armed robbery prosecution by failing to allow defendant to represent himself where defendant requested that the trial court terminate his appointed attorney but did not ask to represent himself.</block_quote>