Volume 52 — North Carolina Court of Appeals Reports

1. Attorneys at Law 11 — disciplinary proceeding — applicable statutes In a disciplinary proceeding before the N.C. State Bar where respondent alleged that the proceeding was governed by the amendments to G.S. Ch. 84 which became effective 1 July 1975, respondent could not thereafter challenge the applicability of the 1975 statute to his proceeding; moreover, since the amendments provided that they were to become effective on July 1, 1975 and would "apply to all cases, actions and proceedings arising on and after said date," it was evident that the statutes should apply to all such proceedings begun or instituted after 1 July 1975, even though such proceedings might involve infractions by attorneys of the disciplinary standards of the profession which occurred before 1 July 1975. 2. Attorneys at Law 11; Constitutional Law 33 — discipline of attorneys — amendment of statutes — no ex post facto law In a disciplinary proceeding before the N.C. State Bar there was no merit to respondent's argument that application of the procedures contained in the 1975 amendment to G.S. Ch. 84 to his hearing constituted an ex post facto application of the law since constitutional prohibitions of ex post facto legislation apply only to criminal proceedings, and disciplinary proceedings against attorneys in N.C. are civil and not criminal proceedings. 3. Attorneys at Law 11; Constitutional Law 23.4 — procedure for disciplining attorneys — no interference with right to practice law In a disciplinary proceeding before the N.C. State Bar there was no merit to respondent's argument that use of the 1975 amendments to G.S. Ch. 84 unlawfully interfered with his vested right to practice law in N.C., though the practice of law is a property right requiring due process of law before it may be impaired, since the amendments objected to in no way interfered with respondent's right to practice law but<page_number>Page 2</page_number> only established procedures by which he could be disciplined in the event that he violated standards of professional conduct, and the legislature could properly enact valid retroactive legislation affecting procedure. 4. Attorneys at Law 11; Rules of Civil Procedure 38 — disciplinary proceeding — no deprivation of jury trial In a disciplinary proceeding before the N.C. State Bar respondent was not unconstitutionally deprived of a trial by jury, since the statutes applicable at the time of respondent's hearing did not provide him with a right to jury trial; moreover, had respondent been entitled to a jury trial, he waived it by failing to make a demand therefor within the time required by the Rules of Civil Procedure. G.S. <cross_reference>1A-1</cross_reference>, Rules 38(b), (d) and 39 (b). 5. Attorneys at Law 11 — disciplinary proceeding — fair and impartial hearing In a disciplinary proceeding before the N.C. State Bar there was no merit to respondent's contention that he did not receive a fair and impartial hearing because (1) the chairman of the Disciplinary Hearing Commission had knowledge about the actions of respondent, the Commission was charged with whatever knowledge the chairman had about actions of respondent, and with that knowledge the Commission unnecessarily delayed the commencement of these proceedings, since the chairman, of necessity, had to divorce his personal knowledge concerning this proceeding from his position as chairman, which was evidenced by his recusal from participating in the hearing, and there was no imputation of his knowledge to the Commission and no laches on part of the Commission in commencing the proceeding; (2) the Commission consolidated for the purpose of hearing this proceeding with three other proceedings involving respondent, since the record on appeal did not contain any description as to the nature of the other three proceedings and no abuse of discretion was shown; (3) the Commission refused to allow into evidence for non-hearsay purposes only statements made by one of the participants in the proceedings in question, since testimony to the same effect was allowed into evidence without objection; (4) the Commission limited the number of character witnesses respondent could present, since the Commission could properly limit the number of character witnesses and no abuse of discretion was shown; and (5) the Commission permitted respondent to be cross-examined concerning incidents of which he had been acquitted in criminal trials, concerning his marital status and concerning his mental and emotional condition. 6. Attorneys at Law 11 — disciplinary hearing — standard of proof The Disciplinary Hearing Commission of the N.C. State Bar did not err in using the "greater weight of the evidence" rule as the standard of proof in respondent's disciplinary hearing. 7. Attorneys at Law 12 — disciplinary hearing — procuring of false testimony — sufficiency of evidence Evidence was sufficient to support the findings and conclusion of the Disciplinary Hearing Commission of the N.C. State Bar that respondent procured false testimony by a witness during a deposition.<page_number>Page 3</page_number>

1. Divorce and Alimony 24.1 — child support — credit for voluntary expenditures The trial court did not err in allowing defendant credit against his child support obligation for certain expenses for clothing, food and day care which he incurred for the children during their visitation with him, and there was no merit to plaintiff's contention that the trial court erred in allowing the credit since debt payments were made to parties other than as specified in the support order and the child support payments deducted by defendant were proportionate to the visitation time he spent with the children. 2. Divorce and Alimony 24.4 — voluntary expenditures deducted from child support payments — no contempt The element of willfulness is required for a finding of civil contempt under G.S. <cross_reference>50-13.4</cross_reference>(f)(9) and G.S. <cross_reference>5A-21</cross_reference>, and evidence before the trial judge was sufficient to support his conclusion that defendant was not in willful contempt of court by deducting from his child support payments made to plaintiff amounts representing voluntary expenditures for needs of the parties' children while they were visiting him.

1. Brokers and Factors 4.1 — real estate broker — dealings with principal The general rule is that a broker can neither purchase from nor sell to his principal unless the principal expressly consents thereto, or with full knowledge of all the facts and circumstances acquiesces in such transactions. 2. Brokers and Factors 4.1 — real estate broker — option to purchase property While an option to purchase real estate, given by the seller to a broker employed to sell the property, is generally valid, the broker cannot enforce the option without making a full disclosure to his principal of any information which he has relating to other prospective sales or the value of the property.<page_number>Page 119</page_number> 3. Brokers and Factors 8 — real estate broker's license revoked — sufficiency of findings of fact Findings of fact by the Real Estate Licensing Board were sufficient to support its conclusion that respondent made substantial and willful misrepresentations in violation of G.S. <cross_reference>93A-6</cross_reference>(a)(1) and acted for more than one party in a transaction without the knowledge of all parties for whom he acted in violation of G.S. <cross_reference>93A-6</cross_reference>(a)(4) where the Board found that seller listed a house for sale with respondent at an asking price of $15,000; the owner executed to respondent an option to purchase the property within 30 days for $11,000; respondent did not disclose to seller an offer subsequently made by a third person to buy for $15,000; respondent represented to the third person that the seller was the owner of the property and that the seller had accepted the third person's offer of $15,000; respondent made a secret profit of $4,000 by representing to the third person that he was acting as a broker for the seller when in fact he was acting for himself; respondent falsely represented to the third person that the seller had received an offer of $14,500 for the property; and even if respondent was not an agent for the third person, once respondent discussed the transaction with the third person, he had the duty of dealing with honesty and integrity.

Indians 1 — jurisdiction over traffic offense by Cherokee Indian The courts of this state have jurisdiction to try a Cherokee Indian for an alleged traffic offense which occurred on a highway within the boundaries of the Cherokee Indian Reservation.

1. Criminal Law 162 — necessity for objection to evidence When there is no objection to an offer of evidence or a motion to strike after its admission, any objection or exception is lost. 2. Obstructing Justice 2 — intimidating a State's witness — sufficiency of warrant A warrant was sufficient to charge defendant with the offense of intimidating the State's witness in violation of G.S. <cross_reference>14-226</cross_reference> where it alleged that defendant did "threaten or in any other manner intimidate or attempt to intimidate" a named person who had been summoned as a witness in district court of this State in an attempt to prevent the witness from attending court by threatening by telephone to physically injure the ten-year-old daughter of the witness if the witness did not drop charges preferred against defendant for communicating threats. 3. Criminal Law 69 — telephone call — insufficient foundation for testimony — harmless error In a prosecution for intimidating a State's witness, the trial court erred in failing to strike testimony by the prosecutrix's brother, in response to a question as to whether he had received any calls from defendant, that "the next day she called my number, which was the only number that she had for [the prosecutrix]," since no proper foundation was laid for the testimony; however, such error was not prejudicial to defendant where other evidence was before the jury without objection that defendant had called the prosecutrix while she was living with her brother and that the brother had talked with defendant on the telephone many times and was familiar with her voice. 4. Obstructing Justice 1 — intimidating State's witness — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution of defendant for intimidating a State's witness where it tended to show that the witness testified against defendant in district court on a<page_number>Page 332</page_number> charge of communicating threats; defendant was convicted on that charge and appealed for a trial de novo in the superior court; and on the day after her conviction defendant by telephone threatened to kill the witness's ten-year-old daughter if the witness did not drop the charges against defendant for communicating threats.

1. Insurance 143.1 — all risk insurance — gutter downspout as part of plumbing system A gutter downspout is, as a matter of law, a part of the plumbing system of a home within the meaning of an "all risk" policy provision covering loss from accidental discharge or overflow of water from within a plumbing system. 2. Insurance 144.1 — all risk insurance — loss caused by earth movement — jury question In an action to recover under an "all risk" policy for damages resulting from the collapse of a basement wall in plaintiff's home allegedly caused by the failure of a gutter downspout which allowed an abnormally large amount of water to be deposited adjacent to the wall, the evidence on motion for summary judgment presented an issue of fact as to whether plaintiff's loss was excluded from coverage under the terms of the policy on the ground that earth movement caused or contributed to the collapse of the wall. 3. Insurance 143.1 — all risk insurance — construction of exclusion for water damage Where a policy of "all risk" insurance provided coverage for "accidental discharge, leakage or overflow of water . . . from within a plumbing . . . system" and excluded coverage for loss caused or contributed to by "surface water" or "water below the surface of the ground," the exclusion was intended to relate only to damage from water not emanating from the plumbing system.

1. Insurance 50 — accident insurance — accident as exclusive cause of injuries — triable issue of fact In an action to recover under an accident policy for injuries to plaintiff's hip allegedly sustained when plaintiff fell from a ladder, the evidence on motion for summary judgment presented a triable issue<page_number>Page 521</page_number> of fact as to whether plaintiff's accident was the independent and exclusive cause of his injuries or whether a degenerative joint disease resulting from a football injury some 40 years earlier contributed to plaintiff's injuries where plaintiff testified by affidavit that at the time of the accident he suffered immediate and severe pain; he nearly blacked out and could not walk; prior to the fall from the ladder he had experienced no pain in his hip except when he had suffered the football injury some 40 years before; prior to the fall he was active and participated in hard physical labor; and after the fall he was totally disabled for a period of approximately six months. 2. Evidence 14.1 — deposition of attending physician — authority of trial court Under G.S. <cross_reference>8-53</cross_reference> only the judge presiding at the trial on the merits may grant a motion to take depositions of the physicians who attend a party.

Negligence 57.10 — rocks in front of shopping center — fall of patron — sufficiency of evidence In an action by plaintiff to recover damages for personal injuries she sustained when she fell on rocks from defendant's rock garden which had become scattered on the sidewalk of defendant's shopping center, the trial court erred in granting summary judgment for defendant where plaintiff alleged that defendant breached its duty to maintain the premises in a reasonably safe condition and alleged breach of duty to warn of hidden danger or unsafe condition and that rocks remained on the sidewalk for so long a time that defendant knew or should have known of the danger they presented to customers; defendant's own evidentiary material contained testimony from which a jury could find that the unsafe condition had existed for such time that defendant should have known of it; the production of an at the scene experiment deposition, during which defendant forced plaintiff to place the object or objects over which she fell in the location in which she fell and then to trace and retrace her steps and actions on the day of the fall in an effort to elicit testimony that on the day of the experiment she could see the objects when she looked for them, did not automatically entitle defendant to summary judgment, as plaintiff continued to insist that she did not see the rocks on the day of her fall until it was too late for her to avoid falling on them; and defendant presented no evidence that reasonable, prudent persons would have acted differently from plaintiff under the circumstances.

1. Rules of Civil Procedure 56.5 — summary judgment — findings of fact In ruling on a motion for summary judgment, the trial judge does not make findings of fact, since summary judgment is improper if findings of fact are necessary to resolve an issue as to a material fact. 2. Adverse Possession 17.1; Easements 6.1 — perscriptive easement — color of title — deeds not in defendants' chain of title In an action to establish a prescriptive easement in a right-of-way across defendants' lands, deeds relied on by plaintiffs to establish color of title to the right-of-way which were not in defendants' chain of title did not sufficiently afford defendants notice of plaintiffs' claim of right to the easement so as to overcome the presumption of permissive use and warrant the trial court's granting of summary judgment for plaintiffs as a matter of law.

1. Husband and Wife 11.2 — separation agreement — admissibility of parol evidence The trial court did not err in admitting as evidence, over objection, correspondence and testimony regarding negotiations between the parties leading to a contract of separation, since the agreement was ambiguous with respect to the payment of ad valorem taxes, and the challenged evidence was admissible for the purpose of determining the true intent of the parties with respect to who was responsible for the payment of the county taxes. 2. Husband and Wife 11.2 — payment of ad valorem taxes — construction of separation agreement The trial court did not err in finding that defendant was obligated under a separation agreement executed by the parties to pay all the ad valorem taxes on the home of the parties where the agreement itself stated that defendant was to pay all ad valorem taxes on the house; on two occasions defendant told plaintiff that he understood he was to pay all the taxes on the property; and defendant paid all the ad valorem taxes on the property for the years 1971 through 1977. 3. Husband and Wife 11.2 — separation agreement — alimony arrearage The trial court's finding that defendant was obligated to pay an alimony arrearage of $18,200 plus interest as required by the parties' separation agreement was supported by the evidence, and though defendant sent plaintiff a bank check for the $18,200, by defendant's failure to include interest payable on the arrearage, his tender of the check did not constitute payment of the arrearage. G.S. <cross_reference>24-5</cross_reference>. 4. Husband and Wife 11.2 — separation agreement — procurement of life insurance — specific performance proper The trial court did not err in ordering specific performance of a provision of the parties' separation agreement requiring defendant to procure and keep in effect a policy of life insurance for the benefit of plaintiff, and there was no merit to defendant's contention that plaintiff should wait until the death of defendant and then make claim upon his estate.

1. Insurance 119 — fire insurance — standard mortgage clause — notice to insurer of change of ownership A fire insurance policy did not become null and void because of the failure of a mortgagee to notify the insurer of a change in ownership of the insured property as required by the standard mortgage clause.<page_number>Page 574</page_number> Furthermore, the evidence established that a trustee was the owner of the property at all times in question and that no change in ownership had occurred. 2. Insurance 119 — fire insurance — standard mortgage clause — ownership of person not named insured — no increase in hazard A mortgagee's knowledge that insured property was owned by a person other than the named insured did not constitute knowledge of an increase in hazard of which the mortgagee was required by a standard mortgage clause of a fire insurance policy to notify the insurer. 3. Insurance 115 — fire insurance — insurable interest in property The named insured in a fire insurance policy had an insurable interest in the insured property, although insured and his wife had conveyed the property to the wife as trustee for their children, where the insured was using the property as a personal residence for himself and his family and would obviously suffer pecuniary loss if a fire occurred, and where insured remained personally liable on promissory notes which were secured by the insured property. 4. Trusts 6.3 — intent to sign deed of trust as trustee A trustee's failure to sign a deed of trust in her capacity as trustee did not affect the validity of the execution of that deed of trust where the person signing the deed of trust only held the property as trustee and thus clearly intended to sign the deed of trust in her capacity as trustee.

Contracts 33 — interference with contractual relationship — sufficiency of allegations Defendant's counterclaim sufficiently alleged a claim for damages for interference with a contractual relationship where it alleged that defendant was about to consummate an agreement for a loan from the F.H.A.; plaintiff wrote a letter to the F.H.A. concerning a balance allegedly due for equipment sold to defendant; as a result of such letter, the F.H.A. refused to lend defendant the money as originally agreed; defendant was not indebted to plaintiff for the equipment; and plaintiff wrongfully and maliciously prevented the F.H.A. from entering the contract with defendant which it otherwise would have entered but for plaintiff's attempt to compel defendant to pay an unjust debt.<page_number>Page 602</page_number>

Mortgages and Deeds of Trust 41.1 — foreclosure sale — improper postponement — no standing by purchaser to assert invalidity of sale The purchaser of property at a foreclosure sale had no basis to claim that the sale was invalid because the sale had been postponed for a period of time in excess of the twenty days permitted by G.S. <cross_reference>45-21.21</cross_reference>, since that statute provided procedural protections only for the mortgagor and did not provide protection for the purchaser.

1. Criminal Law 66.1, 66.11 — in-court identification — pretrial show-up — opportunity for observation A pretrial identification procedure was not impermissibly suggestive because a robbery victim viewed defendant within an hour of the alleged crime while defendant was sitting handcuffed in a squad car with blood running down his face, and the victim's in-court identification of defendant was not unreliable because the victim never gave the police a detailed description of her assailant and she was only in his presence for several minutes, where the evidence on voir dire showed that the victim conversed with her assailant in a parking lot immediately prior to the attack; the victim had her eyes on her assailant the entire time he ran toward her after breaking into the building where the victim worked; the lighting in the building was very bright; about ten minutes after the crime the police brought a man to the building for the victim to identify, but the victim indicated that he was not the one who had attacked her; and within an hour after this she identified defendant as her assailant without any hesitation or doubt. 2. Criminal Law 62 — results of voice stress test — absence of stipulation The trial court did not err in the exclusion of testimony by defendant that he denied during a voice stress test that he had assaulted the victim or broke into any building and that he had passed the test absent a valid stipulation between the prosecutor and defendant that the test results would be admissible in evidence. 3. Criminal law 162 — admission of testimony — violation of constitutional right — failure to object Defendant's allegation that the admission of evidence violated a constitutional right does not prevent the operation of the rule that the admission of competent evidence is not ground for a new trial where no objection was made at the time the evidence was offered. 4. Constitutional Law 68; Criminal Law 128.2 — absence of subpoenaed witness — denial of mistrial Defendant was not denied his constitutional right to compel the attendance and testimony of witnesses for his defense by the trial court's refusal to order a mistrial because of the absence of a witness who had administered a voice stress test to defendant and who had been subpoenaed by defendant where defense counsel declined to state what the materiality of the witness's testimony would be. G.S. <cross_reference>15A-1061</cross_reference>. 5. Criminal Law 111.1 — instruction that indictment constitutes no evidence of guilt The trial court's instruction that "the fact that [defendant] has been indicted constitutes no evidence of his guilt of anything<page_number>Page 677</page_number> whatsoever" did not contravene the statute prohibiting reading the indictment to the jury, G.S. <cross_reference>15A-1221</cross_reference>(b), and was not prejudicial to defendant. 6. Criminal Law 114.3 — no expression of opinion in instructions In a prosecution for felonious breaking and entering wherein the trial court, in response to a question by the jury as to whether it must find an intent to commit larceny or an intent to commit a felony in order to return a guilty verdict, instructed that the jury must find an intent to commit larceny at the time of breaking and entering and that in such context larceny included armed and common law robbery, the trial court did not express an opinion on the evidence in further instructing the jury that there was no evidence in this case of any intent to commit armed robbery, or any other type of theft besides larceny and/or common law robbery."

1. Criminal Law 111.1 — informing jury of charge against defendant — propriety of instructions The trial judge did not violate G.S. <cross_reference>15A-1213</cross_reference> or G.S. <cross_reference>15A-1221</cross_reference>(a)(2) by advising the prospective jurors that defendant had been accused in a bill of indictment returned by the grand jury at the July 8, 1980 Session alleging that he broke and entered a certain building and that when he did so he had the intent to commit larceny. 2. Criminal Law 116.1 — instructions on right of defendant to testify Defendant was not prejudiced by the trial court's unduly repetitious instructions on defendant's right to testify or present evidence or to refrain from testifying or presenting evidence. 3. Criminal Law 71 — shorthand statement of fact A witness's testimony concerning his work duties "at the time when the breaking and entering started" did not constitute an opinion on the ultimate issue to be decided by the jury, since the use of the term "breaking and entering" was merely a shorthand statement of fact. 4. Criminal Law 122 — failure to admonish jury before overnight recess Defendant was not prejudiced by the failure of the trial court to admonish the jury pursuant to G.S. <cross_reference>15A-1236</cross_reference> prior to an overnight recess. 5. Criminal Law 73.2 — statements not within hearsay rule A witness's testimony that another witness called to him and said "someone had broken into the shop" and during the pursuit of defendant he "understood that the defendant was heading" in a certain direction did not constitute inadmissible hearsay, since the first statement was<page_number>Page 714</page_number> part of the witness's account of the circumstances surrounding the alleged break-in, and the second statement was a description of the witness's mental state. 6. Criminal Law 113.8 — misstatement of fact in charge — harmless error In a prosecution for breaking and entering a repair shop with intent to commit a felony therein, the trial court's misstatement of fact that when defendant was seen in the shop area "the shop was dark" did not constitute prejudicial error since the issue of whether the shop was dark was not material to the jury's determination as to whether defendant was guilty of feloniously breaking and entering the shop. 7. Burglary and Unlawful Breakings 6.4; Criminal Law 113.4 — failure to define "breaking" or "entering" The trial court did not err in failing to define the terms "breaking" or "entering" in the absence of a request for special instructions. 8. Burglary and Unlawful Breakings 6.4 — breaking or entering — instructions — absence of owner's consent The trial judge sufficiently charged the jury that in order to be found guilty of breaking or entering a repair shop, defendant must have broken or entered the shop without the owner's consent. 9. Criminal Law 114.2 — no expression of opinion in statement of evidence and intentions In a prosecution for breaking and entering a repair shop with intent to commit larceny therein, the trial court did not express an opinion on the evidence in instructing that there was direct evidence tending to show that defendant had no authority to be in the shop since there was direct evidence that no one had given defendant any authority to be in the shop. Furthermore, the trial court did not express an opinion that it was defendant's intent to steal chain saws from the shop where it was clear that the trial court was stating the State's contention regarding defendant's intent and not his own opinion. 10. Criminal Law 112.4 — charge on circumstantial evidence The trial judge did not err in failing to add the phrase "consistent with innocence" at the end of his charge on circumstantial evidence. 11. Burglary and Unlawful Breakings 6.4 — breaking or entering — instructions — without consent or wrongfully The trial court, in instructing on misdemeanor breaking or entering, did not err in instructing the jury that the breaking or entering must have been without consent or wrongfully. 12. Burglary and Unlawful Breakings 6.4 — breaking and entering — mere presence of defendant at crime scene — refusal to give instruction In a prosecution for felonious breaking or entering, the trial court did not err in refusing to instruct the jury that mere presence of the defendant at or near a location where a crime was allegedly committed, such as the breaking of a door, was insufficient evidence upon which to convict defendant of a crime<page_number>Page 715</page_number> where there was substantially more evidence against the defendant than his presence at the scene of the crime.