Volume 200 — North Carolina Court of Appeals Reports

<bold>1. Civil Procedure — Rule 60 — excusable</bold> <bold>neglect — not notifying court of change of address</bold> <bold>— domestic abuse</bold> <block_quote> The trial court properly concluded that defendant Lisa Elliot's failure to notify the court of a change of address was excusable neglect under Rule 60(b)(1), and the trial court did not abuse its discretion by vacating a judgment against defendant, in light of plaintiff David Elliot's documented history of domestic abuse and plaintiffs' violation of Rule 5 in not serving requests for admissions and subsequent pleadings on all defendants.</block_quote> <bold>2. Conspiracy — civil — two allegations</bold> <bold>— prior partial summary judgment 12(b)(6) dismissal</bold> <block_quote> The trial court correctly granted defendants' Rule 12(b)(6) motion to dismiss a civil conspiracy claim where the conspiracy allegations were raised in two paragraphs of the complaint and a prior partial summary judgment for defendants had disposed of the first allegation, which contained the only factual allegation of conspiracy.</block_quote>

<bold>1. Declaratory Judgments — standing —</bold> <bold>allegation of special damages not required</bold> <block_quote> Plaintiffs had standing to file a declaratory judgment action challenging defendants' rezoning of property because the Declaratory Judgment Act does not require a party seeking relief to be an "aggrieved" person or to otherwise allege special damages.</block_quote> <bold>2. Zoning — rezoning — spot zoning</bold> <block_quote> A rezoning was not spot zoning where the property did not have a single owner and was not surrounded by a uniformly zoned area. The question of whether it was illegal spot zoning was not reached.</block_quote> <bold>3. Zoning — rezoning — range of permitted</bold> <bold>uses</bold> <block_quote> Plaintiffs failed to establish that the Board of Aldermen did not conduct the proper assessment of the range of permitted uses in the pertinent rezoned areas, and thus the rezoning was not void on this basis.</block_quote> <bold>4. Evidence</bold> — <bold>exclusion of exhibits</bold> <bold>— summary judgment hearing</bold> <block_quote> The trial court did not abuse its discretion by excluding certain exhibits from evidence at a summary judgment hearing in a declaratory judgment action challenging rezoning.</block_quote>

<bold>1. Appeal and Error — preservation of issues</bold> <bold>— limiting instruction — no objection</bold> <block_quote> An appeal from a limiting instruction was not considered where defendant failed to object to the instruction when given prior to the introduction of the contested evidence, did not object to the instruction at the close of the evidence on the theory now presented, and neither assigned nor argued plain error.</block_quote> <bold>2. Homicide — second-degree murder — drunken</bold> <bold>driving — malice — evidence sufficient</bold> <block_quote> The State's evidence of defendant's convictions for reckless driving, alcohol consumption both before and while operating a motor vehicle, prior impaired driving, and driving while license revoked, as well as flight and elusive behavior after the collision, constituted substantial evidence of malice based upon depravity of mind sufficient to withstand a motion to dismiss a second-degree murder prosecution.</block_quote> <bold>3. Evidence — hearsay — trooper's account of</bold> <bold>witness's statements — admissible —</bold> <bold>corroboration</bold> <block_quote> In a second-degree murder prosecution arising from an auto collision, a Highway Patrol Trooper's testimony relating a passenger's statements about defendant (the driver) being drunk was properly admitted for corroboration because it strengthened the passenger's testimony. Furthermore, defendant could not demonstrate prejudice.</block_quote> <bold>4. Appeal and Error — preservation of issues —</bold> <bold>closing argument — general objection</bold> <block_quote> Defendant's general objection to the State's closing argument in a second-degree murder prosecution did not preserve for<page_number>Page 518</page_number> appellate review an issue involving due process or other constitutional considerations.</block_quote>

<bold>Bail and Pretrial Release — forfeiture —</bold> <bold>motion to set aside — denied — probation revocation</bold> <bold>— independent proceeding</bold> <block_quote> Defendant's probation revocation hearing was the result of an independent charge for violating his probation and N.C.G.S. § <cross_reference>15A-544.5</cross_reference>(f) did not apply (no forfeiture shall be set aside after a defendant fails to appear twice or more in the same case).</block_quote>