Volume 193 — North Carolina Court of Appeals Reports

<bold>1. Zoning — historic preservation district — failure to act on</bold> <bold>application for building — writ of mandamus</bold> <block_quote> A writ of mandamus was properly issued to require a Certificate of Appropriateness for building in a historic district where the zoning ordinance and the rules of procedure for the Historic Preservation Commission provided that failure to act on an application for a permit within 60 days results in approval and issuance of the permit, and the expiration of 60 days in this case is undisputed.</block_quote> <bold>2. Zoning — building in historic district — subject matter jurisdiction</bold> <block_quote> The trial court had subject matter jurisdiction over an action concerning the issuance of a Certificate of Appropriateness (COA) for building in a historic district. Plaintiff is an aggrieved party because the Historic Preservation Commission declined to consider his second application for the certificate to erect a building on a lot he owned, and the writ of mandamus did not require a vain act, despite the argument that the proposed building<page_number>Page 50</page_number> violates a zoning ordinance, because the issuance of the COA is an independent function and is not dependent on the issuance of a zoning certificate.</block_quote> <bold>3. Zoning — historic district — application for building — automatic</bold> <bold>approval without action — informal communication — not an action</bold> <block_quote> The trial court properly ruled that an application for a Certificate of Appropriateness for building in a historic district was approved by operation of law where the application was automatically approved if no action was taken in 60 days. Although defendants argue that the Historic Preservation Commission (HPC) acted when the town attorney informed plaintiff that the Commission would not act on this application while an earlier application was pending, there was no formal denial and the attorney's communication does not qualify as action by the HPC.</block_quote> <bold>4. Zoning — historic district — certificate for building — independent</bold> <bold>from zoning certificate</bold> <block_quote> The trial court did not usurp the authority of the town's zoning administrator by ordering the issuance of a Certificate of Appropriateness for building in a historic district. The issuance of a COA by the Historic Preservation Commission and the issuance of a zoning certificate are independent functions.</block_quote> 5. <bold>Zoning — certificate to build in historic district — estoppel to</bold> <bold>enforce zoning — neither parties nor issue before trial court</bold> <block_quote> The argument that the trial court erred by ruling that a town was estopped from enforcing a zoning ordinance was misplaced where the issue before the trial court was the issuance of a Certificate of Appropriateness by a Historic Preservation Commission. The denial of a zoning certificate was not an issue before the trial court, and the zoning administrator and the Board of Adjustment were not, parties to the current action.</block_quote> <bold>6. Zoning — historic preservation — application to build — subsequent</bold> <bold>application — jurisdiction to consider</bold> <block_quote> The first application to a Historic Preservation Commission to build in a historic area did not divest the Commission of jurisdiction to consider a subsequent application. There is no provision which precludes submission of alternative design proposals.</block_quote><page_number>Page 51</page_number> <bold>7. Zoning — historic district — application to build — petition in</bold> <bold>Superior Court — continuing jurisdiction of Commission</bold> <block_quote> A Historic Preservation Commission was not divested of jurisdiction to address an application for a Certificate of Appropriateness to build in a historic area by the filing of a petition seeking a writ of mandamus. The issuance of a writ of mandamus is an exercise of original and not appellate jurisdiction.</block_quote> <bold>8. Zoning — historic district — building — mandamus — exhaustion of</bold> <bold>administrative remedies</bold> <block_quote> The trial court did not lack jurisdiction to address a petition for a writ of mandamus concerning a permit to build in a historic district where plaintiff had allegedly failed to exhaust his administrative remedies. The Historic Preservation Commission did not render a decision from which plaintiff could appeal and the petition for a writ of mandamus sought to compel consideration of the application.</block_quote> <bold>9. Zoning — historic district — certificate allowing building — multiple</bold> <bold>applications</bold> <block_quote> The trial court did not err by issuing a writ of mandamus compelling a Historic Preservation Commission to issue a Certificate of Appropriateness (COA) for a building where the application in question was plaintiff's second for the same property and defendants contended that public policy precludes processing multiple applications for the same site. Defendants provided no basis for determining that public policy grants the Commission the authority to refuse to process or consider an application for a COA.</block_quote> <bold>10. Mandamus — historic district building certificate — stay — statutory</bold> <bold>criteria</bold> <block_quote> The trial court did not err by refusing to stay a writ of mandamus pending appeal. N.C.G.S. § <cross_reference>1-291</cross_reference> does not require a stay upon satisfaction of statutory criteria.</block_quote> <bold>11. Mandamus — stay denied</bold> — <bold>no abuse of discretion</bold> <block_quote> The trial court did not abuse its discretion by not staying a writ of mandamus under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 62.</block_quote> <bold>12. Mandamus — building in historic district — stay denied — multiple</bold> <bold>reasons</bold> <block_quote> The trial court did not abuse its discretion by refusing to stay a writ of mandamus involving building in a historic district.<page_number>Page 52</page_number> Defendants argued that plaintiff raised the doctrine of laches for the first time in opposition to the stay, but this was only one of 10 arguments raised by plaintiff.</block_quote>

<bold>1. Appeal and Error — mootness — challenge to historic preservation</bold> <bold>guideline — guideline eliminated</bold> <block_quote> The issue of whether a historic preservation guideline was void did not become moot during the appeal even though the guideline ceased to exist. Plaintiff was entitled to rely on the language of the guidelines at the time he applied for his Certificate of Appropriateness.</block_quote> <bold>2. Zoning — historic preservation — authority delegated by legislature —</bold> <bold>guideline more restrictive</bold> <block_quote> A historic preservation guideline was void because it was more restrictive than the authority delegated by the General Assembly. The guideline referred to incongruence with a historically significant structure on the site rather than a landmark or district as stated in N.C.G.S. § <cross_reference>160A-400.9</cross_reference>(a).</block_quote> <bold>3. Declaratory Judgments — historic preservation guidelines and zoning</bold> <bold>setbacks — justiciable</bold> <block_quote> A declaratory judgment action challenging a historic preservation guideline and the denial of a Certificate of Appropriateness (COA) was justiciable where defendants argued that plaintiff's design did not comply with the zoning setback requirements. The issuance of the COA was not dependent on the issuance of a zoning certificate.</block_quote> <bold>4. Zoning — historic preservation — judicial review — statute of</bold> <bold>limitations for zoning ordinances</bold> <block_quote> Zoning statutes do not limit how an applicant for a historic district Certificate of Appropriateness may seek judicial review, and the statute of limitations for challenging zoning ordinances did not block a challenge to a historic preservation guideline.</block_quote>

<bold>1. Termination of Parental Rights — guardian ad litem for mother — mental</bold> <bold>health issues — inquiry required</bold> <block_quote> The trial court abused its discretion in a termination of parental rights proceeding by not conducting an inquiry as to whether a guardian ad litem should have been appointed for the mother, given the allegations made by DSS and the diagnosis of a personality disorder and borderline intellectual functioning.</block_quote> <bold>2. Termination of Parental Rights — leaving children in foster care —</bold> <bold>insufficient progress willful</bold> <block_quote> The trial court did not err by terminating a father's parental rights on the ground that he had willfully left the children in foster care for more than 12 months where he had made some<page_number>Page 115</page_number> progress, but had not demonstrated that he was able to care for one child without significant care from others, much less two children, one of whom required special medical care. Willfulness under N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a)(2) is less than willful abandonment.</block_quote> <bold>3. Termination of Parental Rights — best interests of children — no abuse</bold> <bold>of discretion</bold> <block_quote> The trial court did not err in a termination of parental rights proceeding by determining that it was in the best interest of the children to terminate respondent-father's parental rights.</block_quote> <bold>4. Termination of Parental Rights — reunification efforts ceased — appeal</bold> <bold>— no citation of legal authority</bold> <block_quote> An assignment of error in a termination of parental rights proceeding concerning the cessation of reunification efforts was dismissed where no legal authority was cited in support of the argument.</block_quote>

<bold>1. Cities and Towns — annexation — original report — eighteen-acre tract</bold> <bold>shown — identification of included one-acre tract</bold> <block_quote> Respondent municipality's original report identifying proposed areas for annexation sufficiently identified a one-acre tract that was ultimately annexed even though this one-acre tract was included on the map in a larger eighteen-acre tract and was not specifically carved out and identified on the map as a one-acre tract. The municipality could omit property described in its original report from the property it ultimately annexed.</block_quote> <bold>2. Cities and Towns — annexation — recorded property lines or streets —</bold> <bold>new municipal boundaries</bold> <block_quote> The trial court erred in an annexation case by finding and concluding that respondent did not use recorded property lines or streets in establishing the new municipal boundaries for the pertinent one-acre Norwood tract in violation of N.C.G.S. § <cross_reference>160A-36</cross_reference>(d) because: (1) N.C.G.S. § <cross_reference>160A-36</cross_reference>(d) contains no express requirement that, the property lines utilized by a municipality must be immutable or the result of a formal, county-approved subdivision of land in order to qualify as recorded property lines; (2) the evidence showed respondent Village did use property lines that had been recorded by the Norwood family, the Village specifically utilized the property description contained in a deed, and the tract at issue was contained in the recorded plat; (3) even though on 12 June 2006 the Norwood family revised its plat and eliminated any references to the pertinent tract, the revision<page_number>Page 294</page_number> and recordation occurred well after the adoption of the annexation ordinance and was thus unavailable to the Village at the time of the annexation; (4) the Village's use and reliance on the then-existing recorded deed and plat, both of which were consistent with the actual description of the one-acre tract, complied with the mandates of N.C.G.S. § <cross_reference>160A-36</cross_reference>(d); (5) the boundary lines derived from the street, the separately-owned commercial property, Ms. Norwood's residential property, and her mother's residential property met the requirements of N.C.G.S. § <cross_reference>160A-36</cross_reference>(d); (6) even assuming arguendo that the line derived from the voluntarily annexed tract was not a recorded property line within the meaning of the statute, the record still supported that the Village complied with the statute; and (7) the recorded line that the Village used from the voluntarily annexed tract was already part of the pre-existing municipal boundary, and thus the line did not constitute a new municipal boundary within the meaning of the statute.</block_quote> <bold>3. Cities and Towns — annexation — subdivision test — classification of</bold> <bold>entire tract as commercial</bold> <block_quote> Respondent municipality could properly classify an entire 5.12 acre tract as commercial for purposes of the subdivision test set forth in N.C.G.S. § <cross_reference>160A-36</cross_reference>(c), although a plat presented by petitioners divides the 5.12 tract into a 1.28 acre commercial tract, a .47 acre wooded tract, and a 3.36 acre wooded tract, where respondent's annexation reports and its subdivision test calculations were based upon county tax maps and actual observations of the properties made by a certified land surveyor; neither the county tax map nor the deed divided the property into separate tracts; the plat presented by petitioners did not exist at the time of annexation; the only actual use of the property was commercial; the wooded parts of the property cannot be developed for any purposes other than possibly serve the commercial facilities; and access to the 3.36 acre wooded parcel was provided by the 1.28 acre commercial tract.</block_quote> <bold>4. Cities and Towns — annexation — violation of subdivision test —</bold> <bold>remand</bold> <block_quote> The remedy for a municipality's alleged violation of the sub-division test was not to declare the annexation ordinance null and void but was to remand to allow the municipality to amend the annexation boundaries.</block_quote><page_number>Page 295</page_number> <bold>5. Cities and Towns — annexation — contiguity requirement — previously</bold> <bold>annexed shoestring</bold> <block_quote> A municipality's annexation of a tract of land did not violate the contiguity requirements of N.C.G.S. § <cross_reference>160A-36</cross_reference>(b) and N.C.G.S. § <cross_reference>160A-41</cross_reference>(1) even though the annexed land abutted a ten-foot "shoestring" strip of land running along a highway where the shoestring, along with a larger tract, had been voluntarily annexed more than ten years earlier; the tract of land in question was contiguous to the municipality at the time it was annexed; and the vast majority of the tract at issue directly abuts the previously annexed larger tract and not the shoestring.</block_quote> <bold>6. Cities and Towns — annexation — meaningful extension of municipal</bold> <bold>services</bold> <block_quote> The trial court erred in an annexation case by finding and concluding that respondent municipality violated N.C.G.S. §§ <cross_reference>160A-33</cross_reference> through 42 with regard to its plans to provide meaningful municipal services to the newly annexed areas because: (1) the annexation order would extend the same police protection, waste collection services, and recreation department facilities that are now provided within the municipality; (2) although petitioners claim they do not expect to take advantage of the provided police protection aside from a few emergency calls per year, these arguments are irrelevant, and the trial court's findings and conclusions to this effect are in error; (3) our Supreme Court has already concluded that a municipality is not required to add employees or equipment in order to provide meaningful police protection; and (4) the inquiry regarding the extension of municipal services focuses on a qualitative analysis in regard to nondiscrimination and a quantitative analysis in regard to the types of services provided.</block_quote> <bold>7. Cities and Towns — annexation — public policy violations —</bold> <bold>commercial-residential issue — unincorporated island issue — conflict</bold> <bold>of interest issue</bold> <block_quote> The trial court erred in an annexation case by finding policy violations of N.C.G.S. §§ <cross_reference>160A-33</cross_reference> through -42 by respondent's decision to only annex commercial properties and not to annex similarly situated residential properties, the creation of an unincorporated island within the new corporate limits, and a conflict of interest regarding a council member's position on the Village Council and his status as president and one-third owner of the<page_number>Page 296</page_number> local ski resort because: (1) the trial court did not explain or examine how the challenged annexation violated the policies contained in the statutes, and no case law supporting such conclusions was found; (2) to the extent all of these issues implicated bad faith or improper motivations to members of the Village Council, inquiry into such questions was improper not only for the Court of Appeals but also for the superior court as well; and (3) petitioners did not present competent and substantial evidence to overcome the presumption of fairness, impartiality, and good faith with which public officials are cloaked as is petitioners' burden.</block_quote>

<bold>1. Evidence — prior crimes or bad acts — argument — motive — calling</bold> <bold>defendant a thief</bold> <block_quote> The trial court did not abuse its discretion in a first-degree arson case by admitting the victim's testimony regarding an argument she had with defendant on the day preceding the arson during which she refused to agree to allow defendant to store stolen goods in her home, or by admitting the victims' reference to defendant as a "thief," because: (1) the testimony was admissible under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b) since the nature of defendant's<page_number>Page 314</page_number> argument with the victim, and her reaction to that argument, tended to show that he had a motive to set fire to her residence and was relevant to the State's theory of the case; (2) in one instance when the victim said she did not know that defendant was a thief in response to defendant's question as to their friendship, the victim was clarifying her reasons for refusing defendant entry to her home; and (3) on two other occasions defendant did not object to the victim's testimony that he was a thief, and in both instances the victim's testimony was admissible as corroborative of her earlier testimony regarding the argument and her reasons for telling defendant to leave.</block_quote> <bold>2. Evidence — planned robbery — corroboration</bold> <block_quote> The trial court did not err or commit plain error in a first-degree arson case by allowing the State to examine two witnesses regarding a planned robbery because: (1) the testimony was admissible as corroborative of the victim's testimony; (2) the State's question to defendant's brother as to whether defendant had discussed a planned robbery was proper in light of the victim's testimony; and (3) even assuming arguendo that the question was improper, defendant cannot show prejudice where the witness's answer was not harmful to defendant.</block_quote> <bold>3. Arson — first-degree — identity of perpetrator</bold> — <bold>sufficiency of</bold> <bold>evidence</bold> <block_quote> The trial court did not err in a first-degree arson case by concluding the State provided sufficient evidence to establish defendant's identity as the perpetrator of the arson because there was substantial circumstantial evidence from which a jury could reasonably find that defendant was the perpetrator of the arson, and although defendant's evidence contradicted the State's evidence, any such conflicts were for the jury to resolve.</block_quote> <bold>4. Criminal Law — prosecutor's argument — criminal plan — knife and</bold> <bold>lighter found on defendant</bold> <block_quote> The trial court did not err in a first-degree arson case by failing to intervene ex mero motu during certain portions of the State's closing argument because: (1) the victim testified to an argument in which she refused to allow defendant to include her in a criminal enterprise, and the State's argument merely alluded to that plan; and (2) the evidence showed that the fire was started with pieces of cardboard, and thus it was not improper for the State to argue that the knife and lighter found on defendant on<page_number>Page 315</page_number> the morning of his detention were used to cut up cardboard and to start the fire.</block_quote> 5. <bold>Criminal Law — prosecutor's argument — character propensity inference</bold> <bold>— remarks made in passing — general deterrence arguments — other</bold> <bold>crimes evidence — characterization of defendant as impulsive</bold> <bold>dangerous criminal</bold> <block_quote> The trial court did not err in a first-degree arson case by failing to intervene ex mero motu during certain portions of the State's closing argument that defendant characterizes as extremely inflammatory, allegedly called for a character propensity inference, and made it virtually certain that the jury relied on the other crimes evidence to return a guilty verdict because: (1) although the State needlessly digressed when it speculated that defendant was casing out a robbery victim when these remarks were gratuitous and served no useful purpose, there was evidence that defendant planned a robbery and that he disappeared at a time close to the fire; (2) even assuming arguendo that the remarks were improper, they were made in passing and were not a major focus of the State's closing argument, and thus defendant cannot demonstrate prejudice that would have resulted in a different result at trial; (3) in regard to defendant's general deterrence argument, he failed to cite any supporting authority and thus this argument is deemed abandoned under N.C. R. App. P. 28(b)(6); (4) the portions of the prosecutor's argument which defendant complains of were not general deterrence arguments, but specific deterrence arguments aimed at defendant himself; (5) the admission of the other crimes evidence was without error and the State's argument did not travel outside the record; (6) defendant's evidence did not tend to show his innocence, and the State presented substantial incriminating circumstantial evidence of defendant's guilt; and (7) it cannot be said that the prosecutor's characterization of defendant as an impulsive dangerous criminal lacked evidence when the State presented evidence that defendant set fire to an occupied trailer in the middle of the night out of anger and frustration that the occupant would not permit his entry.</block_quote> <bold>6. Constitutional Law — effective assistance of counsel — failure to</bold> <bold>preserve arguments</bold> <block_quote> Defendant did not receive ineffective assistance of counsel in a first-degree arson case based on his counsel's failure to pre-serve certain of his N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b) arguments because:<page_number>Page 316</page_number> (1) defendant has not shown that the admission of a witness's testimony or that the State's purported use of the other crimes evidence, including its closing arguments, was error; and (2) without showing error, defendant cannot prevail on this claim.</block_quote> <bold>7. Constitutional Law — right to counsel — right to self-representation</bold> <bold>— knowing and voluntary waiver of counsel</bold> <block_quote> Defendant is not entitled to a new trial in a first-degree arson case even though he contends he was forced to make an unlawful choice concerning discharge of counsel and proceeding pro se and his waiver of counsel was allegedly unknowing because: (1) defendant requested to discharge his counsel after both sides rested on the second day of trial, he executed a waiver of counsel in which he relinquished his Sixth Amendment right to counsel, the court then appointed the public defender to remain as standby counsel and allowed defendant to reopen his case and to offer evidence, and defendant consulted with standby counsel throughout the remainder of trial; (2) defendant in the instant case chose between mutually exclusive constitutional rights, those rights being his right to counsel and his right to self-representation, and defendant's right to testify in his own defense was not implicated; (3) while defendant chose not to testify, he was afforded every opportunity to do so; (4) the trial court. ex mero motu renewed defendant's motion to dismiss at the close of all evidence; (5) the record reflected that defendant thought he could stop the proceedings by moving to discharge counsel, and the trial court correctly determined that the trial decisions that resulted in impasse were mere trial tactics rather than critical matters requiring counsel to follow the client's wishes or be discharged from the matter; and (6) defendant's waiver of counsel was knowing and voluntary when the trial court made a full inquiry on the record, clearly articulated defendant's constitutional rights, and counseled defendant that it would be a terrible mistake to discharge his public defender, before allowing defendant to executive a written waiver of counsel.</block_quote> <bold>8. Sentencing</bold> — <bold>stipulation to sentencing worksheet — ineffective to</bold> <bold>establish out-of-state convictions were substantially similar to</bold> <bold>North Carolina offense</bold> <block_quote> Although defendant's stipulation to the State's sentencing worksheet was binding as to the existence of the prior convictions including the out-of state convictions, it was ineffective to establish that out-of-state convictions in the Commonwealth of<page_number>Page 317</page_number> Virginia were substantially similar to a North Carolina offense as required by N.C.G.S. § 15A-140.14(e), and the trial court erred by failing to enter any findings in this regard. The State conceded that the prior driving while license revoked conviction was not within the statutory definition of a misdemeanor that may be counted for sentencing purposes, and on remand, that offense should be disregarded.</block_quote>

<bold>1. Evidence — prior crimes or bad acts — assault — motive — similarities</bold> — <bold>remoteness</bold> <block_quote> The trial court did not commit plain error in a felony aggravated assault on a handicapped person, felonious assault by strangulation, false imprisonment, and habitual felon case by permitting the victim to testify about prior incidents of defendant assaulting her because: (1) the evidence was admissible to show motive since defendant disputed committing any crimes against the victim; (2) the testimony regarding defendant's previous motive to hit the victim was relevant since it made it more probable that defendant committed the charged crimes against the victim when he again accused her of cheating on him; (3) similarities existed between the offenses when all three incidente involved defendant accusing the victim of cheating on him before striking her, one of the prior incidents and the current incident involved the use of a weapon, and the prior incidents and the current crime involved defendant violently hitting the victim on the head or face; (4) the victim testified that the prior incidents occurred less than a year before the incidents for which defendant was charged; and (5) any prejudicial effect of the evidence was outweighed by their probative value in establishing defendant's motive in assaulting the victim.</block_quote> <bold>2. Evidence — victim's mental condition — victim impact evidence</bold> <block_quote> The trial court did not commit plain error in a felony aggravated assault on a handicapped person case by permitting the victim to testify regarding her mental condition, including her<page_number>Page 365</page_number> dreams, after the alleged incident because: (1) the victim's testimony regarding her mental condition was not victim impact evidence; and (2) "serious injury" under N.C.G.S. § <cross_reference>14-32</cross_reference> for the charge of assault on a handicapped person includes serious mental injury caused by an assault with a deadly weapon, and the victim's testimony regarding her mental state supported an element of that crime.</block_quote>

<bold>1. Assault — deadly weapon inflicting serious injuries — beating with</bold> <bold>hands — no fractures</bold> <block_quote> The trial court correctly denied defendant's motion to dismiss a charge of assault with a deadly weapon inflicting serious injury where defendant attacked the woman with whom he lived with his hands and fists and there were no fractures. Defendant was 25 years old and the victim was thirty-eight; defendant was seven inches taller and forty pounds heavier; defendant delivered repeated blows to the face and head, with the victim losing consciousness; and the victim suffered traumatic head injuries, including bleeding, swelling, and bruising and damage to her ear and mouth. The absence of fractures is relevant but not determinative.</block_quote> <bold>2. Larceny — motor vehicle — intent to permanently deprive owner of</bold> <bold>possession — sufficiency of evidence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of felonious larceny of a motor vehicle where defendant left with the victim's automobile after beating her into unconsciousness, abandoned the vehicle in Virginia, and went to Florida to start a new life. Defendant's abandonment of the vehicle put it beyond his power to return and showed his indifference to whether the owner ever recovered it.</block_quote><page_number>Page 376</page_number> <bold>3. Criminal Law — instructions — flight — no error</bold> <block_quote> The trial court did not err by giving an instruction on flight where defendant stole the victim's vehicle to facilitate his departure from the scene of an assault, defendant made no attempt to contact the authorities or obtain help for the victim, defendant abandoned the vehicle in Virginia, and he was arrested in Florida, where he had gone to start a new life.</block_quote> <bold>4. Assault</bold> — <bold>instructions</bold> — <bold>hands and feet as deadly weapon — no plain</bold> <bold>error</bold> <block_quote> There was no plain error in a prosecution for assault with a deadly weapon inflicting serious injury where defendant contended that the court had given a peremptory instruction on the use of hands and feet as a deadly weapon. Reading the instructions contextually and in their entirety, the court told the jury to determine whether defendant's hands and feet were a deadly weapon beyond a reasonable doubt based on the evidence. Furthermore, considering the evidence as well as the instruction, defendant did not establish the probability of a different result without the verdict.</block_quote> <bold>5. Criminal Law — deadlocked jury — deliberations resumed without</bold> <bold>statutory instruction — no plain error</bold> <block_quote> The trial court did not commit plain error or abuse its discretion when a jury reported that it could not reach a verdict and the court granted a recess and returned the jury for more deliberations without giving an instruction permitted by N.C.G.S. § <cross_reference>15A-1235</cross_reference>(c), and the jury reached a verdict after an hour.</block_quote>

<bold>1. Arbitration and Mediation" mandatory arbitration" prayer for relief in</bold> <bold>answer — not a proper motion</bold> <block_quote> The trial court did not err by not ordering mandatory arbitration upon receiving an answer that listed arbitration as a prayer for relief, although a later motion to compel arbitration was granted. The prayer for relief made no claim that the parties were contractually bound to arbitrate and did not qualify as a motion as required by statute.</block_quote> <bold>2. Arbitration and Mediation" arbitration requested in answer — not a</bold> <bold>proper motion — substantive rulings by court</bold> <block_quote> The trial court did not err by issuing substantive rulings after arbitration was requested in an answer because the court, had not received a proper motion requesting mandatory arbitration. The litigation continued in its ordinary course and defendants participated with counsel.</block_quote> <bold>3. Arbitration and Mediation" notice — last known address</bold> <block_quote> Defendants were given proper notice of an arbitration hearing by the arbitrator where notice was sent to the last known address, a place of business, which is specifically allowed by statute. Actual receipt is not required by the statute.</block_quote> <bold>4. Arbitration and Mediation" arbitration — damages only</bold> <block_quote> An arbitrator did not err by addressing only damages where the trial court, had conclusively determined liability before a proper motion to compel arbitration was filed, with damages being the only remaining issue. Defendants cannot participate in litigation and then expect an unfavorable decision to be automatically vacated upon an order compelling arbitration.</block_quote> <bold>5. Arbitration and Mediation" punitive damages — unfair and deceptive</bold> <bold>trade practice — arbitration clause</bold> <block_quote> An arbitration clause in effect allowed punitive or exemplary relief (here, treble damages for unfair and deceptive trade practices) where the clause stated that it was the proper avenue for any dispute about the performance of the contract that the<page_number>Page 704</page_number> parties could not resolve, and did not specifically exclude any particular form of damages. "Any dispute" would include plaintiffs' claim that defendants are liable for unfair and deceptive trade practices.</block_quote> <bold>6. Arbitration and Mediation" no findings — treble damages — unfair and</bold> <bold>deceptive trade practices — prior determination by court</bold> <block_quote> There was no error in an arbitrator's order by the absence of specific findings that would justify the award of treble damages for unfair and deceptive trade practices where the trial court had previously found for plaintiffs on the issue of liability for unfair and deceptive trade practices and found treble damages to be statutorily appropriate. The arbitrator had no responsibility for deciding the case on its merite, but was merely in charge of deciding the appropriate amount of actual damages that were to be trebled by law. The arbitrator was not required to make findings already established by the trial court.</block_quote> <bold>7. Arbitration and Mediation" attorney fees — unfair and deceptive trade</bold> <bold>practices — arbitration clause</bold> <block_quote> An arbitrator did not err by awarding attorney fees in an unfair trade practices dispute because the arbitration clause expressly stated that attorney fees would be awarded to the winning party at arbitration, attorney fees are allowed here by statute, and the arbitrator was following the mandate of the court.</block_quote> <bold>8. Arbitration and Mediation" arbitration award — confirmed by court — no</bold> <bold>error</bold> <block_quote> The trial court did not err by confirming an arbitration award where it did not find any of the statutory grounds for vacating the award, and there was no error in the proceeding or award.</block_quote>