Volume 351 — North Carolina Reports

<bold>1. Taxation — ad valorem — Property Tax Commission —</bold> <bold>valuation adjustment — statutory limitations</bold> <block_quote> The State Property Tax Commission, while sitting in its appellate capacity as the State Board of Equalization and Review, is subject to the same limitations set forth in N.C.G.S. §§ <cross_reference>105-286</cross_reference> and <cross_reference>105-287</cross_reference> as apply to county tax assessors, boards and commissioners in adjusting appraised values of real property for ad valorem tax purposes.</block_quote> <bold>2. Taxation — ad valorem — Property Tax Commission —</bold> <bold>property valuation — independent appraiser</bold> <block_quote> The Property Tax Commission's reliance on an independent appraiser's collateral determination of the value of petitioners' property, without challenge or correlation to the county's schedules of values or rules of application, violated the requirement of N.C.G.S. § <cross_reference>105-287</cross_reference> that any permissible increase or decrease in the appraised value of real property be calculated using the schedules and standards established by the county.</block_quote><page_number>Page 2</page_number> <bold>3. Taxation — ad valorem — valuation adjustment — sale</bold> <bold>after octennial valuation</bold> <block_quote> The Property Tax Commission erred in its conclusion that a sale of property which occurs subsequent to the octennial valuation of that property for ad valorem taxation is statutorily sufficient to justify a valuation adjustment in a non-octennial or non-horizontal adjustment year.</block_quote> <bold>4. Taxation — ad valorem — valuation adjustment — factor</bold> <bold>not listed in statute</bold> <block_quote> As used in N.C.G.S. § <cross_reference>105-287</cross_reference>, the language "a factor other than one listed in subsection (b)" which would allow "an increase or decrease in the value of the property" would include, for example, a rezoning, a relocation of a road or utility, or other such occurrence directly affecting the specific property which falls outside the control of the owner and is subject to analysis and appraisal under the established schedules of values, standards and rules.</block_quote> <block_quote> Justices MARTIN, WAINWRIGHT and FREEMAN did not participate in the consideration or decision of this case.</block_quote>

<bold>Appeal and Error; Eminent Domain — appealability — pretrial</bold> <bold>condemnation hearing — unification order — substantial</bold> <bold>right not affected — immediate appeal not required</bold> <block_quote> The trial court's interlocutory order entered in a pretrial N.C.G.S. § <cross_reference>136-108</cross_reference> condemnation hearing which unified defendants' four remaining tracts of land for the purpose of determining damages did not affect a substantial right of defendants, and defendants were thus not required to immediately appeal the order before proceeding to the damages trial and did not waive their right to appeal after the final judgment by foregoing an interlocutory appeal. The holding of <italic>N.C. State Highway</italic> <italic>Comm'n v. Nuckles</italic>, <cross_reference>271 N.C. 1</cross_reference>, <cross_reference>155 S.E.2d 772</cross_reference> (1967) is limited to questions of title and area taken. Even assuming the interlocutory unification order affected a substantial right, defendants were permitted but not required to immediately appeal this order.</block_quote>

<bold>1. Utilities — natural gas rates — evidence presented — nonunanimous</bold> <bold>agreement — standard of review</bold> <block_quote> The Utilities Commission's order in a natural gas rate case will not be subjected to a heightened standard of review because the witnesses testified according to a nonunanimous private<page_number>Page 224</page_number> agreement between the utility and the Public Staff regarding the evidence to be presented. The proper standard of review requires only that the Commission make an independent determination supported by substantial evidence on the record.</block_quote> <bold>2. Utilities — natural gas rates — rate of return</bold> <block_quote> The Utilities Commission's adoption of an 11.4% rate of return on common equity for a natural gas company was supported by the evidence where the rate of return was based upon the direct testimony and exhibits of a witness for the Public Staff, and the Commission carefully reviewed testimony by a witness for the utility and a witness for a utility customers association before concluding that the testimony of the witness for the Public Staff was the most credible and objective.</block_quote> <bold>3. Utilities — natural gas rates — short-term debt ratio</bold> <block_quote> The Utilities Commission's conclusion that a natural gas company's capital structure should include a short-term debt ratio based upon the company's stored gas inventory included in the rate base, rather than upon the amount of short-term debt employed during the most recent year, was supported by substantial evidence where the Commission adopted the capital structure recommended by the Public Staff's witness and accepted by the gas company; the Commission carefully reviewed the testimony of witnesses for the gas company and a utility customers association before accepting the Public Staff witness's recommended capital structure; and witnesses for the gas company and the association acknowledged that the association's proposed capital structure would jeopardize the gas company's "A" bond rating.</block_quote> <bold>4. Utilities — natural gas rates — cost of service — peak and</bold> <bold>average method</bold> <block_quote> The Utilities Commission did not err by adopting a peak and average cost-of-service methodology for allocating fixed gas costs between a natural gas company's customer classes rather than peak responsibility or imputed load factor methodologies proposed by a utility customers association. The evidence and the Commission's findings supported the Commission's conclusion that the peak and average method properly allocates fixed costs between annual use and peak day utilization of the facilities.</block_quote><page_number>Page 225</page_number> <bold>5. Utilities — natural gas rates — nondiscriminatory rate</bold> <bold>structure — necessary findings and conclusions</bold> <block_quote> The Utilities Commission, in designing a nondiscriminatory rate structure, must set forth sufficient evidence, findings of fact, and conclusions of law to permit adequate appellate review. The Commission satisfies this standard by explaining its consideration of non-cost-related factors and by setting forth the factual basis for its conclusion that the approved rate structure does not result in discrimination among customer classes.</block_quote> <bold>6. Utilities — natural gas rates — sufficiency of order</bold> <block_quote> The Utilities Commission's order in a natural gas rate case satisfied the minimal requirements set forth in <italic>State ex rel.</italic> <italic>Utils. Comm'n v. Carolina Util. Customers Ass'n</italic>, <cross_reference>348 N.C. 452</cross_reference>, <cross_reference>500 S.E.2d 693</cross_reference> (1998), where the Commission's findings and conclusions demonstrate that the Commission appropriately considered factors other than cost of service in adopting a rate design that would be just and reasonable for all customer classes; the findings are supported by substantial evidence in view of the whole record; and the order contains sufficient findings to justify the Commission's conclusion that the approved rates of return are just and reasonable and do not unreasonably discriminate among the various classes of the gas company's customers.</block_quote> <bold>7. Utilities — natural gas rates — bifurcated full-margin transportation</bold> <bold>rates</bold> <block_quote> The evidence was sufficient to support the Utilities Commission's approval of a natural gas company's bifurcated full-margin transportation rates, under which transportation customers pay Commission-approved transportation rates and sales customers pay established transportation rates and a monthly commodity gas cost, and its rider setting forth the method for calculating the monthly commodity cost of gas where the gas company's witness emphasized that the gas company's bifurcated rates are still full margin since the transportation and sales rates differ only by the amount of the commodity cost of gas; the Public Staff's witness underscored the neutrality of the gas company's full-margin rates since both transportation and sales rates contain the same margin and the rates differ only by the cost of the gas provided by the gas company to its sales customers; and a witness for a utility customers association testified that the gas company's system simply reverses the typical full-margin calculation,<page_number>Page 226</page_number> resulting in sales customers, rather than transportation customers, paying duplicative charges for interstate transportation.</block_quote>

<bold>Immunity — rural fire department — negligence — statutory</bold> <bold>immunity</bold> <block_quote> The statute affording limited liability to firemen, N.C.G.S. § <cross_reference>58-82-5</cross_reference> (b), exempts a rural fire department from liability for ordinary negligence when the fire department performs acts which relate to the suppression of a reported fire, even though such acts do not occur at the scene of the fire. Therefore, two volunteer rural fire departments were immune from liability under the statute for alleged negligence in failing to warn plaintiff motorist of a traffic hazard created when water spilled on the roadway by the fire departments while filling the tanks of their fire trucks at a hydrant one-half mile from the fire to which they were responding froze on the roadway, and this ice caused the vehicle driven by plaintiff to skid off the roadway into a ditch bank.</block_quote> <block_quote> Justice MARTIN did not participate in the consideration or decision of this case.</block_quote>

<bold>1. Partnerships — limited partner — status similar to shareholder</bold> <block_quote> The Court of Appeals properly equated the status of limited partners in a partnership to the relationship that exists between corporate shareholders and the corporation.</block_quote> <bold>2. Partnerships — limited partner — standing to bring suit</bold> <block_quote> Plaintiff limited partner in a partnership organized to develop a "waste-to-energy" project did not have standing to maintain individual suits against defendant engineering and construction companies for negligence, negligent misrepresentations and breach of warranty where (1) the complaint does not allege an injury separate and distinct to plaintiff but shows that plaintiff's injury is the loss of its investment, which is identical to the injury suffered by the other limited partners and by the partnership as a whole; and (2) the complaint does not allege facts showing that a relationship existed outside of the partnership sufficient to create a special duty between defendants and plaintiff.</block_quote> <bold>3. Civil Procedure — lack of standing — motion to dismiss —</bold> <bold>failure to state claim</bold> <block_quote> A lack of standing may be challenged by motion to dismiss for failure to state a claim upon which relief may be granted.</block_quote> <bold>4. Negligence — contract with partnership — suit by limited</bold> <bold>partner — failure to state claim</bold> <block_quote> Plaintiff limited partner's complaint was insufficient to state a claim against defendant engineering and construction companies for negligence in the design and construction of a "waste-to-energy" project where the alleged injuries arose out of work done pursuant to a contract between defendants and the limited partnership, and no facts were alleged that would support a finding of a duty running from defendants to plaintiff rather than to the partnership.</block_quote><page_number>Page 332</page_number> <bold>5. Fraud — negligent misrepresentation — claim by limited</bold> <bold>partner — standing — special relationship</bold> <block_quote> Plaintiff limited partner's claim against defendant engineering and construction companies for negligent misrepresentations pertaining to the design and construction of a "waste-to-energy" project for the partnership must fail because plaintiff has not alleged or established a special relationship with defendants which supports standing to bring a direct claim.</block_quote> <bold>6. Warranties — breach — claim by limited partner — absence</bold> <bold>of privity</bold> <block_quote> Plaintiff limited partner's claim for breach of warranty in the design and construction of a "waste-to-energy" project for the partnership must fail where plaintiff did not allege contractual privity between plaintiff and defendants or any warranty addressed to plaintiff as ultimate consumer or user.</block_quote>

<bold>1. Homicide — malice — instructions — second-degree murder — automobile</bold> <bold>accident — attitudinal circumstances</bold> <block_quote> The trial court did not err in a prosecution for second-degree murder by instructing the jury that malice may be present if only one of the attitudinal circumstances constituting malice — wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, a mind regardless of social duty and<page_number>Page 387</page_number> deliberately bent on mischief — is found to exist. The attitudinal circumstances listed by the trial court in the instruction serve only as descriptive words or phrases and do not constitute elements of malice so that the State need not prove each and every one of those attitudinal examples of malice in order for the jury to infer malice.</block_quote> <bold>2. Homicide — instructions — malice — recklessness of consequences</bold> <block_quote> The trial court's instruction allowing the jury in a second-degree murder case to find malice based on "recklessness of consequences" did not lower the culpability level required to convict a defendant of second-degree murder to a level of culpable negligence since the trial court's instructions as a whole reflected terms which described the degree of recklessness sufficient for the jury to find the state of mind which constitutes malice, and the jury could not have confused such a high degree of recklessness with mere culpable negligence.</block_quote> <bold>3. Homicide — instructions — malice — deliberately bent on mischief</bold> <block_quote> The trial court did not err in its definition of "deliberately bent on mischief" as used in its instruction on malice in a prosecution for second-degree murders arising from an automobile accident by failing to convey the appropriate concepts of deliberateness and intention since it was necessary for the State to prove only that defendant had the intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result, thus evidencing depravity of mind; the State was not required to show that defendant had a conscious, direct purpose to do specific harm or damage, or had a specific intent to kill; and the State presented testimony that defendant drove his vehicle at a high rate of speed while impaired, on the wrong side of the road, in a no-passing zone and in violation of right-of-way rules. Therefore, the jury was properly focused on defendant's intention to perform an act which reflected the level of intent that is associated with a person being "deliberately bent on mischief."</block_quote> <bold>4. Homicide — instructions — malice — deliberately bent on mischief</bold> <block_quote> The trial court's instruction on the meaning of "deliberately bent on mischief" in a prosecution for second-degree murders arising from an automobile accident could not have caused the jury to confuse malice with culpable negligence where the trial<page_number>Page 388</page_number> court never mentioned culpable negligence to the jury in connection with its charge on second-degree murder but focused on the term "malice"; and the instructions clearly required a finding of malice sufficient to support second-degree murder if the jury concluded that defendant's actions were such as to be inherently dangerous to human life and were done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.</block_quote> <bold>5. Evidence — lay opinion — investigating officer — driving while</bold> <bold>impaired</bold> <block_quote> An investigating officer was properly permitted to state his opinion in a prosecution for two second-degree murders that defendant was driving while impaired when he collided with the victims' vehicle for the purpose of showing malice where the officer based his opinion not only on the odor of alcohol, but also on his investigation of the accident and upon his experience enforcing traffic laws and dealing with intoxicated drivers.</block_quote> <bold>6. Evidence — other crimes — prior speeding convictions — malice</bold> <block_quote> Evidence of defendant's prior convictions for speeding was admissible under Rule 404(b) to show malice in this prosecution for second-degree murders arising from an automobile accident in which the State's evidence tended to show that defendant drove his vehicle on the wrong side of the road at a high rate of speed while impaired. This evidence was not offered to show that defendant was speeding at the time of the collision but to show that defendant knew and acted with a total disregard of the consequences, which is relevant to show malice.</block_quote>

<bold>Motor Vehicles — driving while impaired — refusal to submit to</bold> <bold>Intoxilyzer — civil and criminal cases — collateral estoppel</bold> <block_quote> The Court of Appeals did not err in defendant's criminal prosecution for DWI by applying the doctrine of collateral estoppel to prevent relitigation of whether defendant willfully refused to submit to an Intoxilyzer test because: (1) that exact issue had been conclusively decided on appeal to civil superior court from defendant's driver's license revocation from the Division of Motor Vehicles (DMV) with the Attorney General representing DMV in superior court; (2) there is privily between the district attorney, representing the State in defendant's criminal prosecution for DWI, and the Attorney General, representing the State in defendant's appeal to civil superior court from his license revocation, since they both represent the interest of protecting the citizens of North Carolina from drunk drivers in judicial actions involving the determination of whether there was a willful refusal to submit to an Intoxilyzer test; and (3) N.C.G.S. § <cross_reference>20-16.2</cross_reference> and § <cross_reference>20-139.1</cross_reference>, the primary sections prescribing the procedures for conducting chemical analysis and the civil and criminal consequences of the analysis, indicate a commonality of purpose and reflects direct cross-reference and reliance between the two.</block_quote>