Volume 48 — North Carolina Court of Appeals Reports

1. Highways and Cartways 2.1 — Outdoor Advertising Control Act — violation — no administrative hearing provided There was no provision within the Outdoor Advertising Control Act or the administrative regulations published pursuant to the Act which required or provided for anything other than a written administrative appeal to the Secretary of Transportation, and petitioner therefore was not entitled to any administrative hearing by the Secretary; similarly, the Administrative Procedure Act did not apply in this case because there was no statute or administrative rule which required the Department of Transportation to make an agency decision after providing an opportunity for an adjudicatory hearing. 2. Highways and Cartways 2.1 — Outdoor Advertising Control Act — due process of law not denied There was no merit to petitioner's contention that the Outdoor Advertising Control Act and the regulations issued pursuant thereto deprived petitioner of due process of law, since petitioner was specifically provided with the opportunity to have his position heard in a de novo proceeding before a trial judge. 3. Highways and Cartways 2.1 — outdoor advertising sign permit revoked — nonconforming sign destroyed by windstorm — no re-erection permitted Where petitioner's permit for an outdoor advertising sign was revoked because damages exceeded 50% of the initial value of the sign, the sign had been "destroyed" by a windstorm, and it was a nonconforming sign which could not legally be re-erected, there was no merit to petitioner's contention that his evidence showed that the cost of repairing the sign was less than 50% of the cost of replacing the sign, that the sign was not destroyed, and that therefore the permit for the sign was improperly revoked, since (1) petitioner did not provide any evidence of the initial value of the sign, and it was the initial value, not the replacement value, which was the figure for comparison under the regulation in question; (2) the definition of destroyed sign in the regulation in question specifically included a sign which had been completely blown down, even though one of the support poles, though snapped at five to six feet above the ground level, was still standing; and (3) petitioner failed to make any argument that the sign was not "nonconforming" or that the sign was not "re-erected" after the storm, the re-erecting in this case not being a mere "normal repair" within the exception to the definition of repair in the challenged regulation.<page_number>Page 11</page_number>

1. Insurance 1; Unfair Competition 1 — unfair trade practices statute — applicability to insurance industry Unfair and deceptive acts and practices in the insurance industry are not regulated exclusively by the insurance statutes, G.S. 58-54.1 et seq., and may constitute the basis of recovery under G.S. <cross_reference>75-1.1</cross_reference>. 2. Unfair Competition 1 — unfair trade practice — insurance agent's misrepresentation of competitor's policy In an action by one insurance agent against another to recover damages for unfair trade practices based on defendant's alleged misrepresentations of plaintiff's proposed life insurance policy to a corporate client, genuine issues of material fact were presented as to whether a comparison of policies proposed by the two agencies which defendant submitted to the client contained misrepresentations and whether the alleged representations caused the client to purchase a policy from defendant and plaintiff to lose commissions on the sale.

1. Criminal Law 26.5; Constitutional Law 34 — assault on law enforcement officer — assault with deadly weapon with intent to kill — one transaction — separate offenses — no double jeopardy Prosecution of defendants under G.S. <cross_reference>14-34.2</cross_reference> for assault on a law enforcement officer with a firearm and under G.S. <cross_reference>14-32</cross_reference> for assault with a deadly weapon with intent to kill did not violate the prohibition against double jeopardy, nor did it require the State to elect prosecution under a single statute, though the facts underlying defendants' indictment under each statute were the same, since each offense required proof of an element which did not exist in the other charge. 2. Criminal Law 26.5; Constitutional Law 34 — assault on law enforcement officer with firearm — assault with deadly weapon — double punishment for same offense Where defendants were charged with assault on a law enforcement<page_number>Page 275</page_number> officer with a firearm and assault with a deadly weapon with intent to kill, arrest of judgment upon their conviction of the lesser offense of assault with a deadly weapon was required, since assault and the use of a deadly weapon were necessarily included in the offense of assault on a law enforcement officer with a firearm, and this result would punish defendants twice for the same offense. 3. Criminal Law 15 — motion for change of venue — failure to rule on motion — no prejudice Proceeding to trial without ruling on defendants' motion for change of venue constituted a denial of that motion, and defendants failed to show prejudice as a result of this procedure. 4. Criminal Law 124 — written verdicts — elements of offenses not spelled out — verdicts sufficient Although every element of the offenses charged was not included in the form verdicts submitted to the jury, the offenses which the jury was to consider were sufficiently identified, and there was no requirement in G.S. <cross_reference>15A-1237</cross_reference> that written verdicts contain each element of the offense to which they referred. 5. Arrest and Bail 6; Assault and Battery 15.7 — law officers making valid arrest — assault on officers — instruction on self-defense not required In a prosecution of defendants for assault on law enforcement officers with a firearm and assault with a deadly weapon with intent to kill, there was no evidence to sustain defendants' plea of self-defense based on the officers' allegedly attempting an illegal arrest or their using excessive force in the execution of that arrest where the evidence tended to show that the officers approached defendants' residence, knocked on the door, and announced their presence and intention to serve an arrest warrant on one defendant; defendants did not respond; the officers kicked in the door of defendants' house after warning that they would do so; the officers confronted defendants in a hallway and told one defendant that they had a warrant for his arrest; and fighting then began between defendants and the officers.

1. Sales 8; Uniform Commercial Code 10 — warranty of car — action against manufacturer for breach — privity not required The absence of contractual privity does not bar a direct claim by an ultimate purchaser against a manufacturer for breach of the manufacturer's express warranty which is directed to the purchaser; therefore, plaintiff's claim based on the express warranty given by defendant car manufacturer that it would repair defective parts was not barred by the absence of privity with the car manufacturer. 2. Uniform Commercial Code 11 — warranty of car — warranties not limited — opinion evidence as to value of car — exclusion error In an action to recover damages for an alleged breach of warranty by a car dealer and a car manufacturer, the trial court erred in excluding testimony by plaintiff purchaser as to his opinion of the value of the car with its vibration problem on the date of purchase, since plaintiff's testimony concerning the nature of the vibration problem and testimony that he drove the car 40,000 miles before it was fixed furnished ample foundation upon which his opinion as to value could be based; and because the manufacturer did not state that the limited warranty of repair or replacement of parts was exclusive and in view of the statutory presumption that remedies are cumulative rather than exclusive, all remedies provided in the Uniform Commercial Code were available to plaintiff, with the exception of recovery of consequential damages, and such testimony was therefore relevant to the amount of damages to which plaintiff was entitled in the event breach of warranty was found. G.S. <cross_reference>25-2-719</cross_reference>. 3. Uniform Commercial Code 26 — warranty of car — breach — measure of damages — car repaired — computation of offest to damages In an action to recover damages for an alleged breach of warranty by a car dealer and car manufacturer, plaintiff, upon a showing of such breach, would be entitled to recover the difference between the value of the vehicle as accepted and the value of the vehicle had it been as warranted; however, to the extent that the successful elimination of the vibration problem increased the value of the vehicle, defendants should be entitled to offset the damages by an amount representing that increase in value, an amount which defendants should have the burden of proving. The amount of offset to damages would be most fairly computed by determining (1) what the hypothetical depreciated value of the vehicle would have been as of the date the repairs were completed had the vehicle been as warranted, and (2) what the depreciated value of the vehicle was in its defective condition as of that same date (not taking into account the repairs made). The difference between those two figures should reflect the amount of offset to damages which the warrantor could claim.<page_number>Page 309</page_number>

Guaranty 1; Contracts 2.1; BillS and Notes 7 — endorsement of check — contractual guaranty of transfer of vehicle title to lender The endorsement by defendant car purchaser and defendant car dealer of a check from plaintiff lender immediately below a statement on the back of the check that endorsement guarantees legal title to plaintiff of a specifically described automobile created a contractual guaranty that title to the automobile would be placed in plaintiff for which the purchaser and dealer served as equal co-guarantors. Therefore, where defendant dealer instead placed legal title in the name of defendant purchaser, plaintiff could proceed against defendants jointly and severally to recover its damages arising out of the breach of the contractual guaranty.

1. Appeal and Error 6.6 — action against State — denial of motion to dismiss — immediate appeal An immediate appeal lies under G.S. <cross_reference>1-277</cross_reference>(b) from the trial court's refusal to dismiss a suit against the State on the grounds of governmental immunity. 2. State 4 — contract with State — action for breach of contract — motion to dismiss properly denied In an action by a heating and air conditioning contractor to recover extra expenses and costs incurred in performing its contract with defendants, the trial court properly denied defendants' motion to dismiss for lack of subject matter and personal jurisdiction, since the provisions of G.S. <cross_reference>143-135.3</cross_reference> clearly granted plaintiff the right to bring its action against the State, and plaintiff's allegation that it was entitled to damages contemplated under the contract for breach of contract was sufficient to withstand defendants' motion to dismiss.

Eminent Domain 11; Judgments 19 — irregular judgment — failure to show injury or meritorious defense Where commissioners of appraisal filed their report on 20 April 1979, judgment entered by the clerk on 2 May 1979 was irregular, since it was entered before the expiration of the statutory period of 20 days allowed for the filing of exceptions, but the trial court properly refused to set aside the judgment since respondent failed to show that it affected his rights injuriously and that he had a meritorious defense.

Master and Servant 55.3, 56 — workers' compensation — fall from fainting — accident — whether injury arose out of employment Plaintiff furniture worker was injured by accident when she fainted and fell on her employer's premises in the course of her work. However, the cause must be remanded to the Industrial Commission for a determination as to whether plaintiff's injury arose out of her employment where the Commission failed to make sufficient findings of fact on the question of whether plaintiff's fainting was caused solely by an idiopathic condition or by the conditions of her employment.

1. False Pretense 1 — falsification of expense records — no false pretense The falsification of expense records cannot in itself constitute the crime of false pretense. 2. False Pretense 3.1 — checks written for train tickets — false statement in voucher — insufficiency of evidence of false pretense In a prosecution for obtaining property by false pretenses where the evidence tended to show that defendant, a town official with the authority to draw checks, wrote checks to an attorney which were co-signed by a town council member and which were paid by the bank, that defendant obtained Amtrak tickets in return for the checks, and that vouchers in support of the checks falsely described the expenditure as being for "miscellaneous printed information" and "copies of legal case," defendant's motion for nonsuit should have been granted, since the evidence did not show that the information written on the expense vouchers induced the town to part with its money or in any way caused the payments to be made. 3. Municipal Corporations 9 — checks written by town finance officer for train tickets — vouchers for different items — negligent discharge of duties Evidence was sufficient to support a reasonable inference that defendant town manager acted negligently or carelessly in the discharge of her duties in violation of G.S. <cross_reference>159-181</cross_reference> where it tended to show that she signed two checks on the account of the town for "miscellaneous printed information" and "copies of legal case" while the expenditures were actually for the purchase of Amtrak train tickets for travel to a presidential inauguration. 4. Municipal Corporations 9 — town finance officer — checks written for train tickets — approval of invalid claim — failure to preaudit The trial court properly submitted the charges of approving an invalid claim and failure to preaudit by defendant town finance officer to the jury where the evidence tended to show that defendant<page_number>Page 527</page_number> purchased train tickets to the presidential inauguration both for members of the town council and for persons not employed by the town and the expenditure therefore consisted of both valid and invalid obligations of the town; moreover, the fact that town council members knew of or approved of the expenditure of funds for persons not employed by the town or that defendant acted at the direction of the mayor in ordering tickets for a friend of the town and his wife did not either validate the expenditures or relieve defendant, as finance officer, of liability for approving a false, invalid or erroneous claim in violation of the duties imposed upon her by law. 5. Municipal Corporations 9 — town finance officer's approval of false claim — making false report — election not required The State was not required to elect between the offenses of approving a false claim in violation of G.S. <cross_reference>159-181</cross_reference> and making a false report, since the elements of the two charges were not the same.

1. Municipal Corporations 43 — road built by city on plaintiffs' land — sufficiency of evidence In an action to recover damages for the continuing trespass of defendant town there was sufficient competent evidence to support the<page_number>Page 554</page_number> trial court's finding that defendant's road and utility lines were on plaintiffs' property where the evidence tended to show that plaintiffs' surveyors established plaintiffs' property lines by physical survey, and their survey showed the location of defendant's road and utility lines on plaintiffs' property. 2. Estoppel 4.3 — landowner mistakenly pointing out boundaries — no reasonable reliance on representation — equitable estoppel inapplicable In an action to recover damages for the continuing trespass of defendant town which allegedly constructed a road across plaintiffs' property, the fact that one plaintiff had mistakenly pointed out to defendant's agents where he believed the corners of his property line to be did not entitle defendant to judgment in its favor on the theory of equitable estoppel, since it was not reasonable for defendant to rely on the casual, informal opinion of the property owner as to the actual boundaries of the property when defendant had employed professional surveyors capable of determining this information for themselves. 3. Municipal Corporations 43 — road built on plaintiffs' land — evidence of value In a continuing trespass case testimony by plaintiffs' expert appraisal witness that, in her opinion, their land was worth $6,000-$10,000 before a road was built and $100-$300 after the road was built was sufficient to support the trial court's findings of fact with respect to the value of the property.

1. Limitation of Actions 11; Physicians, Surgeons, and Allied Professions 13 — malpractice — services for minor — statute of limitations Plaintiff's claim based on medical malpractice was barred by the three year statute of limitations of G.S. <cross_reference>1-15</cross_reference>(c) and provisions of G.S. <cross_reference>1-17</cross_reference>(b) requiring an action for malpractice in the performance of professional services for a minor to be brought before the minor attains the full age of nineteen where the last act of negligence by defendants allegedly occurred in 1962 when plaintiff was four years old and plaintiff filed his claim one day before his twentieth birthday, there being no merit to plaintiffs' contention that G.S. <cross_reference>1-17</cross_reference>(b) does not apply to an action brought by a plaintiff in his own behalf.<page_number>Page 625</page_number> 2. Constitutional Law 20; Limitation of Actions 11; Physicians, Surgeons, and Allied Professions 13 — malpractice — services for minor — statute of limitations — equal protection The statute requiring an action for malpractice in the performance of professional services for a minor to be brought before the minor attains the age of 19 when the three-year limitation of G.S. <cross_reference>1-15</cross_reference>(c) expires before the minor attains the age of 19 does not violate the equal protection clauses of the N.C. or U.S. Constitutions because a person has three years after reaching the age of 18 in which to bring other types of tort actions, since there is a substantial distinction between persons who have malpractice claims and those with other types of tort claims.

1. Criminal Law 34.4; Weapons and Firearms 2 — possession of firearm by felon — stipulation as to prior conviction — admissibility In a prosecution for possession of a firearm by a felon, the trial court did not err in allowing the State to introduce defendant's stipulation as to his previous conviction of breaking and entering a motor vehicle, since the State merely introduced defendant's stipulation into evidence so there would be no doubt as to that particular element of the offense being satisfied; the State offered no other evidence in regard to defendant's prior conviction; and the court properly instructed the jury in its charge to consider the conviction only for the purpose of establishing an essential element of the offense and not as evidence of guilt or predisposition. Furthermore, G.S. <cross_reference>15A-928</cross_reference> was not applicable to this case so as to require exclusion since that statute applies solely to cases in which the fact that the accused had a prior conviction raises an offense of lower grade to one of higher grade, but the offense in this case did not have that characteristic. 2. Criminal Law 43.5 — videotape of crime — admission as substantive evidence — error not prejudicial In a prosecution for possession of a firearm by a felon where defendant allegedly sold a firearm to law enforcement officers and a portion of the transaction was recorded by video equipment in an adjacent room, defendant suffered no prejudice due to the erroneous introduction of the videotape as substantive evidence, since sufficient evidence existed in the record in the form of an officer's uncontroverted testimony so that the same result would have ensued even without introduction of the videotape.<page_number>Page 664</page_number>

Evidence 40; Landlord and Tenant 19.1 — tenant's action for deceptive trade practices and return of deposit — opinion testimony admissible In an action to recover for unfair and deceptive trade practices in the lease of an apartment and to obtain a refund of a security deposit, the trial court did not err in overruling defendant's general objection to plaintiff's testimony that on one occasion defendant "ran up his back steps through his back door through his house and got out the front door, and I thought he had gone to get a gun or something so we left," since plaintiff's testimony was admissible to show her reason for abandoning her attempt to regain her security deposit.