Volume 196 — North Carolina Court of Appeals Reports

<bold>1. Appeal and Error — appealability — condemnation — dismissal of</bold> <bold>counterclaims — interlocutory order — existence of easement</bold> <block_quote> An interlocutory order dismissing defendants' counterclaims while plaintiff's initial claim for determination of just compensation for the pertinent taking was still pending was immediately appealable because: (1) orders from a condemnation hearing concerning title and area taken are vital primary issues; and (2) the possible existence of an easement is a question affecting title, and defendants' counterclaims raise the question of whether an easement existed.</block_quote> <bold>2. Railroads — right-of-way — city's use for light rail system — standing</bold> <bold>of landowner and lessor</bold> <block_quote> The owner and lessor of property subject to a railroad right-of-way had standing to contest plaintiff city's acquisition and use of the right-of-way for a light rail system for public transportation on the ground that the city's actions violated the charter authorizing the railroad.</block_quote><page_number>Page 2</page_number> <bold>3. Railroads — right-of-way — city's use for light rail system — purpose</bold> <bold>of railroad — no reversion to fee owner</bold> <block_quote> A city's use of a railroad right-of-way for a light rail system to transport members of the public was within the scope of the "purposes of the railroad" set forth in the amended railroad charter and did not cause the right-of-way to revert to the owner of the underlying fee.</block_quote> <bold>4. Railroads — right-of-way — conveyance to city for light rail system —</bold> <bold>not abandonment — no reversion to fee owner</bold> <block_quote> The conveyance of a portion of a railroad right-of-way to plaintiff city to be used for a light rail system was not an abandonment of the right-of-way which would result in its reversion by operation of law to the owner of the underlying fee.</block_quote> <bold>5. Railroads — right-of-way — voluntary alienation by quit-claim deed</bold> <block_quote> An amended railroad charter provision for reversion of the right-of-way "if the said road or any part thereof should be sold at execution sale for the debts of said company or otherwise" did not forbid alienation of the right-of-way by any means other than an execution sale and permitted voluntary alienation by a quit-claim deed.</block_quote> <bold>6. Railroads — right-of-way — city's use for light rail system — not</bold> <bold>overburden of easement — not compensable taking</bold> <block_quote> An increase in rail traffic on a railroad right-of-way by a city's acquisition and use of the right-of-way for a light rail system was not an overburden of the railroad easement that entitles the underlying fee owner and his lessee to compensation for a taking of the easement.</block_quote>

<bold>Pensions and Retirement — Consolidated Judicial Retirement System —</bold> <bold>Teachers' and State Employees Retirement System — entitlement to tax</bold> <bold>free pension</bold> <block_quote> The trial court did not err by denying petitioner a state tax free pension under the Consolidated Judicial Retirement System and the Teachers' and State Employees Retirement System because: (1) N.C.G.S. §§ <cross_reference>135-5</cross_reference> and <cross_reference>135-4</cross_reference> read in conjunction provide that a member of a state retirement system who leaves state service and withdraws contributions in the retirement system has no rights to any benefits within the retirement system except for the right to repay previously withdrawn contributions as provided in N.C.G.S. § <cross_reference>135-4</cross_reference>; (2) petitioner acquired the right to repay his previously withdrawn contributions since he vested in the retirement system in 1995, and it would be a strained statutory interpretation to allow his vesting date to shift depending on the amount of previously withdrawn contributions the employee<page_number>Page 82</page_number> chooses to repay; and (3) petitioner's repayment of contributions withdrawn prior to 12 August 1989 does not entitle petitioner to a tax-free pension, and the repayment of previously withdrawn contributions serves only to increase the years of service creditable to an employee.</block_quote>

<bold>1. Child Support, Custody, and Visitation — grandparents seeking</bold> <bold>visitation — custody dispute resolved</bold> <block_quote> The trial court did not err in a child custody case by denying defendant mother's motion to dismiss the grandparents' claim for visitation even though the parents entered into a consent judgment resolving their custody dispute because: (1) once grandparents have become parties to a custody proceeding, whether as formal parties or as de facto parties, then the court has the ability to award or modify visitation even if no ongoing custody dispute exists between the parents at the time; and (2) standing is measured at the time the pleadings are filed, and the trial court's jurisdiction once attached will not be ousted by subsequent events.</block_quote> <bold>2. Child Support, Custody, and Visitation — visitation schedule for</bold> <bold>grandparents — sufficiency of findings of fact</bold> <block_quote> The trial court erred in a child custody case by failing to make adequate findings of fact to explain and support its decision to<page_number>Page 119</page_number> take the grandparents' vacation visitation time out of defendant mother's summer custodial time while taking no vacation visitation from plaintiff father's custodial time, and the case is remanded for further findings of fact as to the visitation schedule established for the grandparents.</block_quote>

<bold>Premises Liability — directed verdict — fall down unfinished stairway —</bold> <bold>failure to show proximate cause</bold> <block_quote> The trial court did not err by dismissing on a motion for directed verdict plaintiff's negligence claims arising from injuries sustained after a fall down an unfinished stairway at an unfinished condominium development because: (1) although negligence cases typically do not call for resolution by a directed verdict at the trial level, plaintiff did not introduce evidence on the element of proximate cause; and (2) the evidence taken in the light most favorable to plaintiff did not permit a finding of all elements<page_number>Page 141</page_number> of a negligence claim against defendants, provided no more than mere speculation, and provided insufficient evidence to support a reasonable inference that the injury was the result of defendants' negligence.</block_quote>

<bold>Arbitration and Mediation — UIM award — prejudgment interest —</bold> <bold>modification of award</bold> <block_quote> The trial court could not modify an underinsured motorist (UIM) arbitration award to allow prejudgment, interest where prejudgment interest was not specifically stated in the arbitration award.</block_quote>

<bold>1. Zoning — special use permit — distance from adult business — variance</bold> <bold>not needed</bold> <block_quote> A variance was not needed to obtain a special use permit for an adult business where the ordinance prohibited an adult establishment within a 2,000 foot radius of a speciality school and there was a karate school within that distance if the measurement was to the closest point of each lot. While the city code expressly states that the entire property of the adult establishment is to be included in measuring distances, it does not contain a similar provision for protected places. The proper measure should have been from subject property to the part of the karate school regularly used in furtherance of instruction, in this case a rented space within a building that was outside the 2,000 foot radius.</block_quote> <bold>2. Zoning — board of adjustment — delegation of authority — compliance</bold> <bold>with conditions</bold> <block_quote> The trial court erred by concluding that a board of adjustment improperly delegated its authority to determine the effect on adjoining landowners of secondary impacts from a special use permit for an adult business. There is a necessary interplay between a board of adjustment and other governmental bodies for both the issuance of special use permits and the assurance of compliance.</block_quote> <bold>3. Zoning — special use permit — board of adjustment findings — competent</bold> <bold>supporting evidence</bold> <block_quote> The trial court erred by ruling that a board of adjustment did not make the necessary findings to support its issuance of a special use permit for an adult business. There was competent evidence in the record to support the board's findings concerning the secondary impacts on adjoining landowners, and the trial court was without authority to conduct a de novo review.</block_quote>

<bold>1. Statute of Limitations — insurance agents — professional malpractice</bold> <bold>time limit — not applicable</bold> <block_quote> The four year professional malpractice statute of limitations of N.C.G.S. § <cross_reference>1-15</cross_reference>(c) did not apply to an action against an insurance agency where plaintiff was alleging that the agency had not obtained coverage of risks as promised. Case law does not support the argument that insurance agents provide professional services.</block_quote> <bold>2. Statute of Limitations — insurance sales — discovery of uncovered</bold> <bold>risk</bold> <block_quote> The "discovery" provision of the statute of limitations in N.C.G.S. § <cross_reference>1-52</cross_reference>(16) did not apply to extend the limitations period on a claim against an insurance agency for not procuring coverage. The absence of completed products coverage should have been apparent to plaintiff on the date plaintiff received the policy, or immediately upon the injury at the latest.</block_quote> <bold>3. Statute of Limitations — insurance agency not procuring coverage —</bold> <bold>negligence — barred</bold> <block_quote> Plaintiff's negligence claim against an insurance agency for not procuring promised coverage was barred by the applicable 3 year statute of limitations where plaintiff filed its complaint 3 years and 9 months after the claim could possibly have accrued even if defendant had procured the coverage.</block_quote> <bold>4. Statute of Limitations — insurance agency not procuring coverage —</bold> <bold>breach of contract — barred</bold> <block_quote> Plaintiffs claim for breach of contract against an insurance agency for not procuring the promised coverage was barred by the three-year statute of limitations where the complaint was filed about 3 years and 9 months after the date of the injury, which was the last possible date defendants could have breached their contract. Even if defendants had properly advised plaintiff and procured completed products coverage after a person was injured in a fall, it would have no effect on the current action.</block_quote><page_number>Page 291</page_number>

<bold>1. Child Support, Custody, and Neglect — child support</bold> — <italic>Pataky</italic> <bold>presumption — rebutted</bold> <block_quote> The trial court did not abuse its discretion in a child support case by determining that the <italic>Pataky</italic> presumption (that the amount agreed upon in the parties' agreement is just and reasonable) had been rebutted. The parties submitted substantial evidence of expenses related to the children's needs and the court made numerous, in-depth findings regarding the children and their expenses; the trial court has the discretionary authority to enter an order establishing child support in an amount less than that established by a separation or child support agreement.</block_quote> <bold>2. Child Support, Custody, and Visitation — child support — amount —</bold> <bold>supported by findings</bold> <block_quote> A child support order was supported by adequate findings where the court made over one hundred findings supported by the evidence, painstakingly reviewed the evidence, compared the evidence, and in its discretion determined an amount that would address the needs of the children. Although defendant argued<page_number>Page 323</page_number> that the order deprived the children of advantages and luxuries they otherwise would have received, in its discretion the court determined that a portion of the expenses defendant claimed were either not related to need or were exorbitant. This includes the determination that the cost of a nanny was not necessary.</block_quote>

<bold>1. Jury — deadlock — trial court required continuation of deliberations</bold> <block_quote> The trial court did not abuse its discretion or commit plain error in a trafficking in cocaine case by failing to <italic>ex mero motu</italic> declare a mistrial and requiring the jurors to continue their deliberations after the jury announced it was deadlocked because a review of the totality of circumstances revealed that the trial court's instructions merely served as a catalyst for further deliberations, and defendant failed to point to any statement, act, or omission by the trial court which could be interpreted as coercive; and although defendant noted that the jury deliberated nine hours without a mistrial being declared, the amount of time that the jury deliberated in this case was not so long as to be coercive in nature.</block_quote><page_number>Page 459</page_number> <bold>2. Drugs — acting in concert — instruction — sufficiency of evidence</bold> <block_quote> A de novo review revealed that the trial court did not err in a trafficking in cocaine case by instructing on the theory of acting in concert because there was sufficient evidence that another person, Hernandez, was involved, including that: (1) Hernandez opened the door to admit a detective to the residence prior to the drug deal; and (2) defendant stated that he either handed the bricks of cocaine to the detective himself with Hernandez present, or Hernandez handed the cocaine to the detective and defendant subsequently shook the detective's hand.</block_quote> <bold>3. Jury — failure to individually poll jurors — substitution of defense</bold> <bold>counsel during jury deliberations</bold> <block_quote> The trial court did not commit reversible or plain error in a trafficking in cocaine case by failing to individually poll the jurors and by allowing the substitution of counsel during the jury deliberations because: (1) neither the polling of the jury nor the substitution of counsel issue is subject to plain error analysis when defendant did not argue that the trial court's instructions to the jury were erroneous; (2) defendant waived any error by failing to object to the trial court's polling of the jury by show of hands and did not request individual polling as required by N.C. R. App. P. 10; and (3) there was no indication the trial court abused its discretion, nor that defendant suffered any prejudice, by the substitution of the public defender as defense counsel during jury deliberations when the assistant public defender was ill.</block_quote> <bold>4. Appeal and Error — preservation of issues — failure to assign error</bold> <block_quote> Although defendant contends his substitute counsel was ineffective for failing to request that the jury be polled following the return of the verdicts in accordance with N.C.G.S. § <cross_reference>15A-1238</cross_reference>, this issue was not properly preserved because defendant failed to assign as error any ineffective assistance of counsel.</block_quote>

<bold>1. Appeal and Error — appealability — summary judgment — interlocutory</bold> <bold>order — qualified immunity</bold> <block_quote> Although defendant's appeal from the grant of summary judgment in a false imprisonment case was an appeal from an interlocutory order, the substantial right of qualified immunity was at issue and thus the case was subject to immediate appeal.</block_quote> <bold>2. False Imprisonment; Immunity — wildlife officer stopping vehicle for</bold> <bold>suspected DWI — qualified immunity</bold> <block_quote> The trial court erred by granting summary judgment in favor of plaintiff in a false imprisonment case arising out of defendant wildlife officer stopping plaintiff's vehicle for suspected driving while impaired, based on defendant's affirmative defense of qualified immunity, and the case is reversed and remanded because defendant was authorized to arrest plaintiff under N.C.G.S. § <cross_reference>113-136</cross_reference>(d), pursuant to the terms of N.C.G.S. § <cross_reference>15A-401</cross_reference>(b)(1), since the officer had probable cause to believe that a criminal offense occurred in his presence which constituted a threat to public peace and order tending to subvert the authority of the State if ignored.</block_quote>

<bold>1. Sexual Offenses — second-degree sexual offense — anal intercourse</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of second-degree sexual offense where there was substantial evidence that defendant had anal intercourse with another person by force and against that person's will.</block_quote> <bold>2. Appeal and Error — plain error review — discretion of court</bold> <block_quote> The Court of Appeals did not exercise its discretion to review as plain error the issue of whether the trial court should have instructed on sexual battery as a lesser-included offense of second-degree sexual offense where defendant did not object to the instructions at trial, request an instruction on a lesser-included offense, or allege that the instructions amounted to plain error.</block_quote>

<bold>1. Appeal and Error — preservation of issues — raised in complaint and</bold> <bold>argued at trial</bold> <block_quote> Arguments concerning breach of contract that were asserted in the complaint and argued to the trial court were considered on appeal, but arguments that were not asserted in the pleadings nor argued before the trial court were not considered.</block_quote> <bold>2. Agency — office manager of law firm — social remarks — no issue of</bold> <bold>fact as to agency</bold> <block_quote> Summary judgment was properly granted for plaintiffs in an action arising from the departure of plaintiffs from defendants' law firm where there had been a settlement, plaintiffs filed an action asserting that defendants failed to pay amounts owed under the agreement, and defendants asserted that plaintiffs' breaches of the agreement excused their nonperformance. Defendants contended that plaintiffs violated a nondisparagement clause in the settlement through the remarks of an office manager during a social conversation late at night in a bar, but failed to produce any evidence raising an issue of fact as to whether the office manager acted as plaintiffs' agent during that conversation.</block_quote> <bold>3. Compromise and Settlement — confidentiality agreement" internal email</bold> <block_quote> An internal email from plaintiffs' office manager to members of the law firm did not violate a confidentiality clause in a settlement agreement arising from defendants' departure from plaintiffs' law firm and the settlement of accounts. Such communications are permitted under the settlement agreement, and the trial court did not err by granting summary judgment for plaintiffs.</block_quote><page_number>Page 601</page_number> <bold>4. Fraud — ledger showing expenses — no accompanying demand</bold> <block_quote> Plaintiffs did not breach a settlement agreement arising from the departure of some attorneys from a law firm by making a fraudulent demand for payment of expenses where defendants asked plaintiffs for information about expenses and plaintiffs provided a ledger. The listing was not accompanied by a letter, invoice, or any demand or request. The trial court did not err by entering summary judgment for plaintiffs.</block_quote> 5. <bold>Slander — per se — statute of limitations</bold> <block_quote> Defendants' counterclaim for slander per se arising from the departure of attorneys from a law firm was outside the statute of limitations, and the trial judge did not err by granting summary judgment for plaintiff.</block_quote> <bold>6. Privacy — invasion — website — biographical information" links</bold> <bold>removed</bold> <block_quote> The trial court did not err by granting summary judgment for plaintiffs on a counterclaim for invasion of privacy arising from the departure of attorneys from a law firm and a settlement agreement. Defendants contended that their images and biographical information from plaintiffs' website could be accessed by Internet search engines, but plaintiffs did not own the server which contained the information, they had removed the links to the information from their website and it was not possible to go from plaintiffs' website to the information, plaintiffs did not intend to preserve the files, and defendants offered no evidence that the public had accessed the files. Defendants did not articulate how this would constitute misappropriation of their image or biography for any commercial purpose.</block_quote>

<bold>1. Evidence — hearsay — medical diagnosis or treatment exception</bold> <block_quote> The trial court did not err in a multiple first-degree rape, multiple first-degree sexual offense, and multiple taking indecent liberties with a child case by excluding testimony of a physician's assistant about what the minor child victim's mother said to her during the minor child's first medical examination because: (1) defendant was not attempting to admit statements by the victim through the testimony of her mother under the N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(4) hearsay exception since her mother was not present at trial, but instead was attempting to admit the out-of-court statements of the victim's mother; and (2) assuming <italic>arguendo</italic> that a third party's statements to medical personnel could be admissible under the Rule 803(4) medical diagnosis or treatment hearsay exception, the statements by the victim's mother that the victim never made any disclosures to her about the abuse revealed nothing about the victim's condition but instead tended to show the mother's intent to exculpate herself, defendant failed to establish that the mother made her statements for the purpose of diagnosis or treatment of the victim, and the fact of whether the victim told her mother about the abuse was not relevant to her diagnosis or treatment.</block_quote><page_number>Page 780</page_number> <bold>2. Sexual Offenses — first-degree sexual offense — motion to dismiss —</bold> <bold>sufficiency of evidence — anal penetration</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charges of first-degree sexual offense even though defendant contends the State failed to provide sufficient evidence of anal penetration because the evidence, viewed in the light most favorable to the State, including the victim's testimony and the corroboration testimony of three others, was sufficient.</block_quote> <bold>3. Sexual Offenses — instructions — conditional directed verdicts —</bold> <bold>possibility of multiple verdicts for single offense</bold> <block_quote> The jury instructions in a prosecution on four counts of first-degree sexual offense did not result in conditional directed verdicts since the instructions could not have led the jury to believe that it could return a verdict of guilty in all four first-degree sexual offense charges if the jury was satisfied of defendant's guilt beyond a reasonable doubt for only one of those offenses.</block_quote> <bold>4. Appeal and Error — preservation of issues — issue already decided in</bold> <bold>prior cases</bold> <block_quote> Although defendant contends the trial court erred by failing to instruct the jury that it had to be unanimous as to each specific incident of first-degree rape, first-degree sexual offense, and taking indecent liberties with a minor, this assignment of error is dismissed because defendant concedes our Supreme Court has already ruled against this contention.</block_quote>