Volume 313 — North Carolina Reports

Easements 4.3; Eminent Domain 2 — easement for underground radio wires — sufficiency of leave provision — interference with easement — summary judgment improperly entered A lease provision in which the lessors agreed not to interfere, by cultivation or otherwise, with wires of a radio ground system of plaintiff lessee's radio station radiating approximately 250 feet from the center of two radio towers on the leased property was so ambiguous that it could not be held as a matter of law that it did or did not create an easement in adjoining land owned by the lessors into which the radio wires extended. Furthermore, assuming that the lease provision did create an easement, material questions remained as to whether defendant Housing Authority's construction of buildings over portions of the radio wires extending into land defendant purchased from the lessors amounted to an interference with the wires within the meaning of the lease and, if so, whether this injured plaintiff. Therefore, the trial court erred in entering summary judgment in favor of plaintiff lessee on the issue of liability in an inverse condemnation action against defendant Housing Authority.

1. Architects 3; Limitation of Actions 4.2; Professions and Occupations 1 — action against architects and engineers — applicable statute of repose Plaintiffs claim against defendant architects and engineers arising out of their design and supervision of improvements to realty was governed by the six-year statute of repose set forth in the 1963 version of G.S. <cross_reference>1-50</cross_reference> (5), a statute dealing with claims against persons, among others, who design and supervise construction of buildings, rather than by the four-year statute of repose contained in the statute dealing with professional malpractice claims, G.S. <cross_reference>1-15</cross_reference> (c). In enacting G.S. <cross_reference>1-15</cross_reference> (c), the Legislature intended the statute to apply to malpractice claims against all professionals who<page_number>Page 231</page_number> are not dealt with more specifically by some other statute, and the 1963 version of G.S. <cross_reference>1-50</cross_reference> (5) is a statute specifically applicable to architects and builders and deals more particularly with the precise situation presented by plaintiffs claim. 2. Architects 3; Professions and Occupations 1 — faulty design or supervision by architects — applicability of statute of repose G.S. <cross_reference>1-50</cross_reference> (5) was intended to apply to all actions against architects, and others therein described, where plaintiff seeks damages resulting from the architect's faulty design or supervision, whether those damages are sought merely to correct the defect or as a result of some further injury caused by the defect. Obiter dictum in Ports Authority v. Roofing Co., <cross_reference>294 N.C. 73</cross_reference> (1978), that the statute applies only when plaintiff alleges not merely the defective condition itself but also some injuries subsequent to and caused by the defective condition is disapproved.

1. Criminal Law 26.5, 92.3 — failure to join related offenses — availability of dismissal A defendant is entitled to a dismissal under G.S. <cross_reference>15A-926</cross_reference> (c)(2) if the defendant can show that the prosecution withheld indictment on additional charges solely in order to circumvent statutory joinder requirements. 2. Criminal Law 26.5, 92.3 — failure to join related offenses — evidence not available at first trial The trial court did not err in denying defendant's motion to dismiss burglary and larceny charges for failure to join where defendant's previous indictment for murder and conviction of voluntary manslaughter arose from the same incident. The evidence at the hearing on the motion to dismiss tended to show that at the time of the murder trial no witness was available to the State who could testify that anything was missing from within the victim's home; that the victim's purse, found close to the home of defendant's mother, was not<page_number>Page 255</page_number> found until after the murder trial; that a detective's testimony that he had overheard defendant say prior to the murder trial that he took the purse would not have created a case so strong as to compel the State to proceed with the larceny charge; and, while there was evidence of a forced entry, there was no evidence that the breaking and entering was accompanied by the intent to commit a felony before the purse was found because defendant had been found guilty only of voluntary manslaughter. 3. Criminal Law 26.5, 92.3 — failure to join related offenses — collateral estoppel not applicable There was no error in the denial of defendant's motion to dismiss for double jeopardy burglary and larceny charges which were brought after he was tried for murder and convicted of voluntary manslaughter. Defendant did not provide a transcript of the murder trial to the court in support of his motion to dismiss; moreover, collateral estoppel did not apply because the only ultimate issue of fact determined by the court's dismissal of the first-degree murder charge was that defendant did not kill the deceased with premeditation and deliberation. 4. Burglary and Unlawful Breakings 8 — burglary sentence consecutive with prior manslaughter sentence — no error The trial court correctly ordered defendant's burglary sentence to run consecutively with a prior manslaughter sentence; the plain meaning of G.S. <cross_reference>14-52</cross_reference> is that a term imposed for burglary is to run consecutively with any other sentence being served by defendant.

1. Witnesses 1.2 — ten-year-old rape victim — competent to testify The trial court did not abuse its discretion by permitting a ten-year-old kidnapping and rape victim to testify where the court conducted a voir dire during which the witness was thoroughly questioned by both the prosecutor and the defense attorney and after which the court found that the court had observed the demeanor of the witness, that the witness attended religious services on a regular basis and believed that it would be a sin if she did not tell the truth, knew the difference between truth and falsehood, intended to tell the truth, and understood her oath. 2. Rape and Allied Offenses 10 — testimony not linked to issues in case — properly excluded In a prosecution for the kidnapping and rape of a ten-year-old third grader in which defendant claimed that the victim could give detailed descriptions of his house and car only because she was coached by her mother and great-aunt, the trial court properly excluded testimony that two women had been seen sitting in a car outside defendant's house, walking around the side of defendant's house, looking through a bedroom window, and asking, "Is this where Tootie Price lives?" Defendant did not establish when the women were sitting in the car, there was no evidence of either woman's identity, and no evidence in the record that the victim was coached; the testimony had no logical tendency to prove any fact in issue.<page_number>Page 298</page_number> 3. Criminal Law 102.6 — prosecutor's argument on role of judge, prosecutor, and defense attorney — no error The trial court did not err by overruling defendant's objection to the portion of the prosecutor's argument in which he explained the role of the judge, prosecutor, and defense attorney. The prosecutor's remarks did not amount to the expression of a personal opinion as to the veracity of defendant or his witnesses, of defendant's guilt, or of anything else that could be remotely prejudicial to defendant. 4. Constitutional Law — 34 first-degree kidnapping and rape — no double jeopardy Where defendant was indicted for first-degree kidnapping and first-degree rape, he was not put in jeopardy twice for the same offense where there was testimony of a sexual assault in addition to the rape. G.S. <cross_reference>14-39</cross_reference>.

1. Corporations 1.1 — disregarding corporate entity Courts will disregard the corporate form or "pierce the corporate veil" and extend liability for corporate obligations beyond the confines of a corporation's separate entity whenever necessary to prevent fraud or to achieve equity. 2. Corporations 1.1 — disregarding corporate entity — liability for torts A corporation which exercises actual control over another, operating the latter as a mere instrumentality or tool, is liable for the torts of the corporation thus controlled. In such instances, the separate identities of parent and subsidiary or affiliated corporations may be disregarded. 3. Corporations 1.1 — piercing corporate veil — domination not limited to transaction attacked Where an affiliated corporation is without a separate and distinct corporate entity and is operated as a mere shell, created to perform a function for an affiliated corporation or its common shareholders, domination sufficient to pierce the corporate veil need not be limited to the particular transaction attacked. 4. Corporations 1.1 — disregarding corporate entity — erroneous instruction — harmless error In an action which related to disregarding the corporate entity of affiliated corporations rather than piercing the veil to reach a sole or dominant shareholder, the trial court's instruction referring to control and domination of business practice by an individual shareholder "as to the transactions in question" was mere surplusage. In any case, the instruction, if error, was harmless since despite it the jury found the evidence of control by defendant corporation over the affiliated corporation sufficient to return a verdict for plaintiffs against defendant corporation. 5. Corporations 1.1 — disregarding corporate entity — control and domination — instruction on factors to be considered In an action relating to disregarding the corporate entity, the Court of Appeals erred in concluding that each of the four factors of inadequate capitalization, non-compliance with corporate formalities, complete domination and control, and excessive fragmentation should be treated as separate legal theories upon which a trial court must instruct where there is evidence of these factors. Rather, these and other factors, including non-payment of dividends, insolvency of the<page_number>Page 451</page_number> debtor corporation, siphoning of funds by the dominant shareholder, non-functioning of other officers or directors, and absence of corporate records, are merely factors to be considered to determine whether sufficient control and domination is present to satisfy the first prong of the three-pronged rule known as the instrumentality rule. 6. Corporation 1.1 — disregarding corporate entity — instrumentality rule — affiliated corporations or dominant shareholder The rule with regard to piercing the corporate veil encompasses both situations where there is direct stock ownership of a subsidiary corporation by a parent corporation and where stock control is exercised through a mutual shareholder.

Criminal Law 146 — appeal based on dissent in Court of Appeals — question presented Where defendant's appeal was grounded solely on a dissent in the Court of Appeals, the dissent disagreed only with the majority's treatment of the second question presented to that court, and defendant did not petition the Supreme Court for discretionary review of the other questions, only the second question was properly before the Supreme Court for review.

Rules of Civil Procedure 60; Deeds 20.7 — restrictive covenant in subdivision — permanent injunction against violation — motion for relief The Court of Appeals erred by directing the trial judge to enter an order relieving defendant of a final judgment where defendant had<page_number>Page 587</page_number> begun a second residence on his property in violation of restrictive covenants, plaintiffs had obtained a permanent injunction against the construction of a second residence, the trial judge had ordered defendant to remove the incomplete structure after the Court of Appeals had reversed his earlier refusal to do so, plaintiffs moved for a show cause order after defendant failed to comply with the removal order, and defendant sought relief from the order under G.S. <cross_reference>1A-1</cross_reference>, Rule 60 (b)(5) and (6) on the grounds that he planned to convert the existing incomplete structure into a garage, a lawful use under the restrictions. Directing entry of the order erroneously removed all discretion from the trial judge.

Criminal Law 177 — evenly divided Court — judgment affirmed — no precedent Where one member of the Supreme Court did not participate in the consideration or decision of a case and the remaining six justices are equally divided, the decision of the Court of Appeals is affirmed and stands without precedential value.