Volume 50 — North Carolina Court of Appeals Reports

1. Infants 17 — juvenile delinquency proceeding — inculpatory statement — respondent advised of rights — voir dire — failure of court to make findings and conclusions In a juvenile delinquency proceeding where it was alleged that respondent feloniously broke into and entered a grocery store and stole merchandise having a value of $230, there was no merit to respondent's contentions that he was not advised of his right to have a parent present before making an inculpatory statement during an in-custody interrogation, that he did not waive his rights, and that the court should have made findings of fact and conclusions of law in support of its order denying respondent's motion to suppress the statement, since the court properly conducted a voir dire hearing for the purpose<page_number>Page 98</page_number> of determining the admissibility of the statement in question; the uncontradicted evidence at the hearing was that respondent was fully advised of his constitutional and statutory rights; and the court's failure to make findings of fact and conclusions of law in support of its order denying the motion was not reversible error, since no conflict of evidence existed at the hearing. 2. Infants 17; Constitutional Law 77 — juvenile delinquency proceeding — respondent's waiver of rights There was no merit to respondent's contention that because the State failed to show a specific waiver of respondent's constitutional and statutory rights, it failed to sustain its burden of showing a knowing, willing and understanding waiver, since respondent was advised orally of his constitutional rights and his right to have a parent present during questioning; respondent read a copy of his constitutional rights, but that copy did not contain his right to have a parent present; respondent never signed a written waiver of his rights; but respondent stated that he understood his rights and then confessed to the crime. 3. Infants 18 — juvenile delinquency proceeding — transcript of respondent's inculpatory statement — officer's testimony from own recollection In a juvenile delinquency proceeding respondent failed to show that the trial court abused its discretion in admitting testimony of an investigator regarding the substance of respondent's inculpatory statement, since the trial judge was in a position to determine whether the witness was merely reading from a written transcript of respondent's statement or was relying on his own recollection, and there was no indication in the record that the officer's testimony was not based on his own recollection of the statement which respondent made to him. 4. Searches and Seizures 10 — juvenile delinquency proceeding — warrant less detention of respondent — officer's reasonable suspicion that respondent committed crime An officer had an honest and reasonable suspicion that respondent in a juvenile delinquency proceeding had committed the crime of larceny which justified the officer's detention of respondent where the evidence tended to show that officers heard a radio dispatch at 1:00 a.m. concerning suspicious characters pulling a wagon containing what appeared to be a television; upon sighting the described individuals, the officer stopped his car beside them whereupon one suspect fled; and the box on the wagon contained various merchandise which was in plain view. 5. Searches and Seizures 33 — warrantless search of box in respondent's possession — items in plain view There was no merit to respondent's contention that the trial court erred in admitting into evidence merchandise found in respondent's possession on the ground that the officer who detained respondent had no authority to search the box in respondent's possession which contained the merchandise, since the cigar box in question was contained in a larger, open box along with various articles of merchandise and was in plain view; the fact that the officer opened the cigar box to find some identification was of no consequence; and respondent had no expectation of privacy with regard to the contents of the cigar box, as a cigar box is not normally used and was not being used by respondent as a repository of personal items. 6. Infants 18; Larceny 7.2 — juvenile accused of felonious larceny — identification of items in juvenile's possession In a juvenile delinquency proceeding where it was alleged that<page_number>Page 99</page_number> respondent feloniously broke into and entered a grocery store and stole merchandise having a value of $230, there was no merit to respondent's contention that merchandise found in his possession was not sufficiently identified as the merchandise stolen from the store in question and the State therefore could not rely upon the doctrine of possession of recently stolen property to raise the presumption that respondent stole the missing items, since the grocery store owner's testimony identifying the goods as those taken from his store and the close proximity in time and location of the respondent and the goods to the crime scene were sufficient to raise a reasonable and logical inference that the goods found in respondent's possession were the goods stolen from the witness's store.

Arbitration and Award 7; Master and Servant 10.2 — allegedly wrongful discharge of employee — grievance arbitrated — summary judgment for employer proper In an action to recover damages for the alleged wrongful suspension or discharge of plaintiff from his employment with defendant, the trial court properly entered summary judgment for defendant where defendant's materials established that, except for a bargaining agreement, plaintiff's contract of employment was for an indefinite period of time, terminable at the will of either party; defendant suspended plaintiff for cause, these causes being substantiated by plaintiff's deposition; defendant had the right to suspend plaintiff conditioned or circumscribed only by the provisions of the collective bargaining agreement; plaintiff had previously initiated a grievance under the collective bargaining agreement disputing defendant's right to suspend him; the grievance culminated in arbitration; the decision of the arbitrator denied plaintiff's grievance; and arbitration of the grievance was final and binding on the parties.

Eminent Domain 13 — advertising sign cut down by city — action for inverse condemnation — sufficiency of complaint to state claim The trial court erred in dismissing plaintiff's inverse condemnation suit for failure to state a claim upon which relief could be granted where plaintiff alleged that pursuant to a lease with a landowner, it constructed a large outdoor advertising sign on the property in question; the city then condemned the land for a sewage easement; the city failed to exercise reasonable diligence to discover plaintiff's interest in the land; the city's contractor entered the land and cut down plaintiff's sign which encroached on the city's easement; plaintiff rebuilt the sign; and plaintiff suffered monetary damages as a result of the city's actions.<page_number>Page 151</page_number>

1. Criminal Law 76.5 — motion to suppress not supported by affidavit — findings of fact not required at suppression hearing Since defendant's affidavit failed to support his motion to suppress, the trial court properly denied the motion summarily, without making findings of fact; additionally, findings of fact are not required where there is no conflict in the evidence at the suppression hearing. G.S. <cross_reference>15A-977</cross_reference>(d) and (f). 2. Criminal Law 146.1 — issues not presented at trial — no consideration on appeal The appellate court will not consider arguments based upon issues which were not presented or adjudicated by the trial tribunal. 3. Criminal Law 113.1 — summary of evidence favorable to defendant There was no merit to defendant's contention that the trial court<page_number>Page 189</page_number> totally failed to summarize evidence favorable to him and thereby failed to comply with G.S. <cross_reference>15A-1232</cross_reference>.

Burglary and Unlawful Breakings 7.1; Larceny 9 — verdict not reached on breaking or entering charge — conviction of felonious larceny proper A defendant who is tried for acting in concert with others to commit felonious larceny after a felonious breaking or entering may be convicted of felonious larceny if the jury does not reach a verdict as to the felonious breaking or entering.

Constitutional Law 24.6; Process 14.3 — personal jurisdiction over foreign corporation — minimum contacts with N.C. In an action to recover damages for breach of an employment contract, defendant foreign corporation had sufficient minimum contacts with N.C. to subject it to the in personam jurisdiction of our courts under G.S. <cross_reference>1-75.4</cross_reference>(1)(d), G.S. 55-145(a)(2), and the Due Process clause of the Fourteenth Amendment where defendant's agents at least twice solicited applications for employment by advertising in a newspaper of wide circulation in this State; defendant's agents on two occasions came into this State to recruit employees for defendant, at which time they used State roads and air facilities owned and operated by the State or municipalities therein; on both trips into this State defendant's agents rented and occupied rooms in hotels licensed and regulated by the State; defendant's agents carried on long distance telephone conversations with an indeterminate number of residents of this State; defendant's agents met with and interviewed as many as 62 N.C. residents while in Charlotte; defendant's agents sent through the mail approximately 28 letters containing conditional offers of employment which N.C. residents received at their homes; defendant's agent employed at least 19 of these 28 N.C. residents; the residents employed were flown from N.C. to N.Y. at defendant's expense to sign employment contracts; and plaintiff was a resident of N.C. at the time he entered into an employment contract with defendant.<page_number>Page 246</page_number>

1. Infants 20 — violation of probation for delinquency — commitment to Division of Youth Services Where respondent juvenile was initially placed on probation as an "undisciplined" child for unlawful absence from school, and his probation was continued when he was adjudicated a delinquent for damage to property by shooting out the windows and screens of a home with an air rifle and again when he was adjudicated a delinquent for stealing $60 from a purse, his probationary status resulted from delinquent behavior rather than merely from the undisciplined behavior upon which it was initially grounded, and the juvenile court had authority to commit respondent to the custody of the Division of Youth Services for placement in one of its residential facilities upon finding respondent in violation of the conditions of his probation subsequent to the adjudications that he was delinquent. 2. Infants 20 — commitment of juvenile for delinquency — threat to persons or property in community The district court sufficiently found that respondent juvenile's behavior constituted a threat to persons or property in the community to support commitment of respondent to the Division of Youth Services where the court found that respondent "was adjudicated delinquent for injury to real property with an air rifle" and that "adjudication was made<page_number>Page 259</page_number> that [respondent] had stolen $60 from a purse," and the court found from these facts that respondent's "behavior constitutes some threat to persons or property in the community."

1. Attorneys at Law 7.5 — attorney fees — civil rights action Where a claim is based on both a State statute which does not provide for recovery of attorney fees and on <cross_reference>42 U.S.C. § 1983</cross_reference>, it is not necessary that the court base its decision on 1983 in order for the prevailing party to be entitled to attorney fees under <cross_reference>42 U.S.C. § 1988</cross_reference>.<page_number>Page 295</page_number> If the court does not address the 1983 claim but decides the case on the basis of the State statute, the test for determining whether the prevailing party is entitled to attorney fees is whether there was (1) a substantial claim under 1983 and (2) a common nucleus of operative facts. 2. Attorneys at Law 7.5 — attorney fees — civil rights action — failure to show substantial claim Plaintiff corporation is not entitled to attorney fees pursuant to <cross_reference>42 U.S.C. § 1983</cross_reference> and <cross_reference>1988</cross_reference> in an action in which it was held that G.S. <cross_reference>95-136</cross_reference>(a) is unconstitutional to the extent that it purports to authorize warrantless OSHA inspections of business premises and that an administrative inspection warrant for plaintiff's premises was not based on probable cause and was invalid where defendant voluntarily dismissed that portion of the administrative proceeding relating to a citation and proposed penalty for plaintiff's refusal to allow an inspection of its premises plaintiff's place of business was not inspected during the pendency of this litigation plaintiff was not deprived of any constitutional rights as a result of the invalid warrant, and plaintiff therefore failed to show a substantial claim under <cross_reference>42 U.S.C. § 1983</cross_reference> which would permit an award of attorney fees under <cross_reference>42 U.S.C. § 1988</cross_reference>.

1. Trial 42.2 — question by jury — insufficiency to show quotient verdict In an action to enforce an agreement to pay alimony, the jury's question as to whether a finding that defendant did not have sufficient mental capacity to enter into the agreement would "completely throw out the contract, or can they draw up a new contract" did not show that the jury's verdict awarding plaintiff only $1.00 for defendant's breach of the agreement was a compromise or quotient verdict. 2. Trial 46 — impeaching verdict — affidavit of juror A juror's affidavit was incompetent to impeach the jury's verdict after the jury had been discharged. 3. Trial 42.2 — quotient verdict — insufficient showing A jury's verdict finding that defendant breached an agreement for payment of alimony but awarding plaintiff only $1.00 for such breach did not itself show that it was reached as the result of a quotient or<page_number>Page 306</page_number> compromise where defendant asserted a set-off to the amount of alimony he owed under the agreement and the verdict indicates that the jury believed and applied defendant's evidence of a set-off. 4. Divorce and Alimony 21; Husband and Wife 13 — specific performance of separation agreement The fact that plaintiff allowed an adult boyfriend to live with her in her house with a minor child did not constitute a breach of her separation agreement with defendant which would prohibit the court from ordering specific performance of the agreement, and the court did not err in entering specific performance of the alimony provisions of the agreement where it found that defendant had made no alimony payments for some time and had given no indication that he intended voluntarily to make such payments in the future. 5. Husband and Wife 10 — consideration for separation agreement Plaintiff wife furnished adequate legal consideration for defendant's promise in a separation agreement to pay alimony in a sum equivalent to 50% of his retirement pay each month where she covenanted to waive and relinquish all of her marital rights to share in the property or the estate of defendant and released all claims for support, maintenance and alimony except as specifically provided for in the agreement. Furthermore, the agreement was under seal and the seal imports consideration. 6. Evidence 13 — testimony by attorney — no violation of attorney-client privilege Assuming that an attorney who prepared a separation agreement for plaintiff and defendant represented both parties, the attorney-client privilege was not violated by the attorney's testimony concerning her observation of defendant's physical condition or concerning matters discussed with defendant while plaintiff was present. 7. Husband and Wife 10; Constitutional Law 4 — constitutionality of privy examination statute — husband's lack of standing to raise Defendant husband had no standing to attack the constitutionality of the statute requiring a privy examination of the wife for a separation agreement, former G.S. <cross_reference>52-6</cross_reference>, since the only proper remedy upon a finding of unconstitutionality would be to strike the privy examination requirement entirely, and such a holding would not benefit or affect defendant in any way since he still would not have been entitled to a privy examination; moreover, defendant was not unfairly prejudiced by the fact that his wife had a privy examination before entering into the separation agreement since he cannot show a specific, identifiable injury resulting therefrom. 8. Husband and Wife 10.1 — separation agreement — validity of alimony provision A separation agreement was not manifestly unreasonable or unfair to defendant husband because it required him to pay to plaintiff wife one-half of his military retirement pay for life.<page_number>Page 307</page_number> 9. Estoppel 4.7; Husband and Wife 10.1 — estoppel to assert invalidity of separation agreement The evidence was sufficient to present a jury question as to whether defendant husband was estopped from denying the validity of a separation agreement where defendant performed his obligations in the agreement by conveying a house to plaintiff wife and by making monthly payments of alimony for some 32 months, and where defendant accepted the benefits of the agreement, including the complete and final settlement of all marital and property rights with his wife, which enabled him to get a divorce and remarry without further complication.

Damages 17.7 — insurer's denial of claim — punitive damages — summary judgment for insurer proper In an action to recover compensatory and punitive damages allegedly resulting from the destruction by fire of a building owned by plaintiff and insured by defendant, trial court did not err in granting summary judgment for defendant on the issue of punitive damages, since the fact that defendant denied plaintiff's claim on its belief, based on its investigation, that plaintiff was involved in the fire did not show bad faith on the part of defendant; the claim was not denied until some 19 months after the fire, during which time the investigation continued; and upon the information obtained in that investigation, defendant denied the claim.

State 12 — dismissal of State employee — notice of reasons The Employment Security Commission failed to give respondent proper notice of the reasons for his dismissal as an employee as required by G.S. <cross_reference>126-35</cross_reference> where the only information given respondent concerning the reasons for his dismissal was contained in the letter of dismissal which stated that respondent violated agency procedure in attempting to recruit migrant workers from Florida by phone and personal visit, respondent had required growers to use crew leaders even though workers were not a part of a crew, respondent had forced workers to work for a designated crew leader even though the workers preferred not to work in a crew, and respondent violated agency procedure by not reporting illegal aliens, since the letter did not describe any incidents with sufficient particularity so that respondent could know precisely what acts or omissions were the basis of his discharge.

1. Attorneys at Law 12 — disciplinary action against attorney — sufficiency of evidence to support findings The evidence supported findings by the Disciplinary Hearing Commission that defendant attorney, in representing a client charged with driving under the influence of alcohol, advised a potential State's witness that his client claimed that the potential witness was driving the car at the time in question, that defendant advised the potential witness either not to appear in court or to plead the Fifth Amendment, and that defendant told the potential witness that his client would not testify against the witness if the witness would not testify against his client. 2. Attorneys at Law 12 — unprofessional conduct — influencing potential adverse witness not to testify — constitutionality of disciplinary rules Defendant attorney engaged in professional conduct prejudicial to the administration of justice and adversely reflecting upon his fitness to practice law in violation of Disciplinary Rules 1-102(A)(5) and (6) where the attorney, in representing a client charged with driving under the influence of alcohol, advised a potential adverse witness that his client claimed that the witness was driving the car at the time in question, told the witness that the State could not prove who was driving if both the witness and his client remained silent, advised the witness not to testify unless subpoenaed and to plead the Fifth Amendment if subpoenaed, and told the witness that his client would not give testimony which might incriminate the witness if the witness would not give incriminating testimony against his client. Furthermore, application of the Disciplinary Rules against defendant attorney in this case did not violate defendant's rights to due process and equal<page_number>Page 451</page_number> protection. 3. Attorneys at Law 12 — unprofessional conduct — public censure An order of public censure was not arbitrary and unreasonably harsh punishment for defendant attorney's unprofessional conduct in encouraging a potential adverse witness not to testify against his client in a prosecution for driving under the influence of alcohol in return for an agreement by the client not to give any testimony which might incriminate the potential witness. 4. Attorneys at Law 12 — disciplinary hearing — evidence in mitigation of misconduct In a disciplinary hearing against an attorney, evidence tendered by defendant attorney purportedly in mitigation of the alleged misconduct was properly excluded since it was irrelevant to the question of whether defendant attorney engaged in misconduct, and since mitigating evidence would be admissible only after the charges of misconduct had been established.

Process 14.4 — foreign corporation — contract made and performed in N.C. — in personam jurisdiction In plaintiff's action to recover the balance of payments allegedly due it by defendant, a California corporation, for goods shipped from plaintiff's manufacturing plant in N.C., the trial court did not err in denying defendant's motion to dismiss for lack of in personam jurisdiction since the evidence tended to show that defendant, from its California office, made an offer to purchase goods from plaintiff by telex directed to plaintiff's facility in Davidson, N.C.; that communication specifically directed plaintiff to confirm the acceptance<page_number>Page 468</page_number> of the terms of the agreement by return wire; plaintiff responded by return wire, agreeing with all terms included in defendant's telex with the exception of the warranty; defendant then sent plaintiff a purchase order and forwarded a check for $1000 to plaintiff accompanied by a letter stating that defendant was pleased to be doing business with plaintiff; both parties considered themselves to have executed a contract; plaintiff shipped goods from N.C. to defendant in California, some of which were returned to plaintiff in N.C. for repair; and such evidence was sufficient to show that a contract was made in this State so that defendant had sufficient contacts with N.C. to subject it to suit here.

Brokers and Factors 6 — real estate broker's action to recover commission — no triable issue of fact In an action by a licensed real estate broker to recover a commission for having procured a prospective purchaser for property owned by defendant in accordance with the terms of a listing agreement between the parties, the trial court properly granted summary judgment for defendant since there was no triable issue of fact as to whether the parties had differing intentions with respect to the property being sold as a unit or in separate parts, nor was there a genuine issue of material fact as to whether defendant failed to cooperate with plaintiff in the selling of the property as required under the listing agreement; furthermore, defendant's refusal to accept either a written or an oral offer tendered on behalf of a prospective purchaser was justified under the circumstances since the terms of the offers differed substantially from the terms of sale in the listing agreement, and the prospective purchaser was therefore not "ready, willing, and able" to purchase on defendant's terms as set out in the listing agreement.<page_number>Page 492</page_number>

Appeal and Error 6.2 — summary judgment for third party defendants-order interlocutory — no substantial right affected — order not appealable In an action to recover damages for injuries received by plaintiff when she came into contact with the interior wiring of an electrical transformer where defendant sought contribution from third party defendants as joint tort-feasors, the trial court's order entering summary judgment for third party defendants adjudicated fewer than all the claims or right's and liabilities of all the parties, no substantial right of plaintiff was affected, and the trial judge refrained from and refused to certify the case for appeal so that plaintiff's appeal was interlocutory and must be dismissed.