Volume 91 — North Carolina Court of Appeals Reports

Master and Servant 68, 94.1 — occupational disease — tendonitis — inability to earn same wages after injury — findings not supported by evidence Where plaintiff contracted the occupational disease tendonitis while performing her duties as an inspect-fold operator and was given an intracompany transfer to a position where she made over $100 less per week, she met the Hilliard test of disability, and the Industrial Commission erred in concluding that her inability to earn the same wages in other jobs was due merely to her lack of skill in the new job rather than to her occupational disease.

1. Divorce and Alimony 23 — child custody and support — motion for change placed on regular domestic calendar — defendant not prejudiced Defendant was not prejudiced where his motion for change of child custody and for child support was placed on the Regular Domestic Calendar rather than on the Expedited Calendar for Domestic Cases. 2. Divorce and Alimony 24.9 — plaintiff not required to support minor children — findings insufficient to support conclusion The trial court's findings of fact were insufficient to support its conclusion that plaintiff should not be required to support her minor children where the court placed no monetary value on the needs of one child; the only finding bearing on plaintiffs ability to pay was that her expenses exceeded her income; and there were no findings upon which to conclude that defendant had the ability to support both his children. 3. Divorce and Alimony 24, 25 — child custody and support — affidavit of child — no consideration by court In a hearing on defendant's motion for child custody and support, the trial court did not abuse its discretion in refusing to consider the affidavit of one of defendant's children where the affidavit was offered after defendant's motion to amend the judgment had been heard and without notice to plaintiff.

1. Criminal Law 138.16, 138.29 — aggravating factors — killing premeditated-inducement of another to participate Evidence was sufficient to support the trial court's finding as a nonstatutory factor in aggravation that a second degree murder had been planned for two months and was premeditated, and the same evidence was not used as a basis for the finding that defendant induced another to conspire with him in the murder, where there was evidence that defendant hired the third person to kill the victim and then later instructed him not to; defendant told others of his plan to kill the victim before he got in touch with the third person; and the autopsy showed that the killing was by strangulation, which required persistent effort over a period of several minutes.<page_number>Page 125</page_number> 2. Criminal Law 138.6 — sentence — no consideration given to victim's relatives' thoughts on sentence Receiving the thoughts of a victim's relatives as to the sentence which should be entered, though harmless in this case, is a practice which is not encouraged. N.C.G.S. <cross_reference>15A-825</cross_reference>(9). 3. Criminal Law 138.6 — sentence — victim impact statements — procedure for receiving There was no merit to defendant's contention that victim impact statements should not be received unless preceded by live testimony.

Narcotics 4 — conspiracy to traffic in cocaine — conspirator acquitted — defendant not guilty of conspiracy Defendant could not be found guilty of conspiracy to traffic in cocaine where his alleged co-conspirator had been acquitted by another jury.

1. Husband and Wife 2.1 — antenuptial agreement — failure to disclose financial status — grounds for invalidation Absent any voluntary waiver, especially considering the confidential relationship between prospective spouses, the failure fully to disclose one's financial status is grounds for invalidating an antenuptial agreement. 2. Trusts 13.3 — purchase of condominium by husband — funds supplied by wife — resulting trust established The trial court properly established a resulting trust in defendant wife's favor where plaintiff's grandmother gave defendant a check for $10,000 in her maiden name which she deposited into a separate account in her own name; she subsequently wrote a check for $10,000 to plaintiff and made a notation on it, "For the condo"; plaintiff used the funds to purchase a condominium in his own name which the parties used as their marital home; whether the grandmother intended her gift to benefit only<page_number>Page 129</page_number> the plaintiff was irrelevant; defendant's intentions in providing the $10,000 toward the real estate purchase were determinative; and defendant's notation on the check and her trial testimony that she always thought she had an interest in the condominium were sufficient evidence of her intention to support the establishment of a resulting trust. 3. Divorce and Alimony 30 — equitable distribution — determination as to marital or separate property — property purchased in anticipation of marriage — no donative intent In an equitable distribution proceeding where a determination must be made as to what is separate and what is marital property, the sole fact that property has been purchased in anticipation of marriage is not, in and of itself, sufficient to establish donative intent; therefore, the trial court erred in finding that certain household furnishings were marital property where they were purchased before marriage with money provided by plaintiff's grandmother. 4. Divorce and Alimony 30 — equitable distribution — part of purchase price of automobile — separate property In an equitable distribution proceeding $10,000 worth of a BMW automobile purchase price (subject to depreciation) should be denominated plaintiff husband's separate property where plaintiffs grandmother gave him $10,000 which he deposited in the parties' joint bank account and later used to pay off the loan on the car. 5. Divorce and Alimony 30 — equitable distribution — purchase of car before marriage — separate property Where plaintiff husband, two months before his marriage to defendant, paid $7,000 as a down payment on a car, the car was titled in both parties' names, and the parties shared the payments equally until one month after the marriage when the wife took them over and continued to pay them after the date of separation, the trial court erred in determining that the husband intended to make a gift to the wife of a half interest in the car and that the car was entirely marital property; rather, the car should be apportioned among the marital estate, the husband's separate estate, and the wife's separate estate. N.C.G.S. <cross_reference>50-20</cross_reference>(b)(2).

Criminal Law 73.2; Rape and Allied Offenses 4 — taking indecent liberties with child — refusal of child to testify — admission of prior statement — failure to make necessary findings In a prosecution of defendant for first degree sexual offense and taking indecent liberties with a child, the trial court erred in admitting into evidence a statement given by the child victim to the investigating officer without making the specific findings of fact and conclusions of law with regard to the unavailability of a witness as required by N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 804(b)(5); furthermore, such error was prejudicial and required a new trial where the only other direct evidence of the alleged incidents came from defendant's wife, whose credibility was seriously attacked, and the child's statement took on added importance as a result.

1. Searches and Seizures 13 — warrantless search of outbuilding — consent given by owner — evidence admissible The trial court did not err in allowing into evidence property obtained as a result of a warrantless search of an outbuilding which defendant had been given permission to use for storage purposes where defendant's sister was the owner of the outbuilding, had extensive use and control thereof, and voluntarily gave consent to its search and seizure of items therein. 2. Searches and Seizures 26 — warrantless search — tip from confidential informer — informer not proven reliable — insufficient showing of probable cause The trial court erred in allowing into evidence property seized without a warrant from an outbuilding owned by defendant's sister where<page_number>Page 250</page_number> officers acted on the basis of a tip from a confidential informant whose reliability had not been established; the officers did not know at the time of the seizure that a crime had been committed; and the officers had no knowledge that the goods were contraband.

Motor and Servant 10 — termination of employment — terms of contract unenforceable upon termination Upon the termination of plaintiff employment, effected by plaintiffs securing other employment and accepting defendant's termination notice, defendant was required to pay the ad valorem taxes on plaintiffs house for 1984 but was not required to pay taxes, insurance, and college expenses which accrued or became due after plaintiffs employment ceased; moreover, defendant had no right to collect a loan for plaintiffs house until expiration of the seven-year period provided for in the employment contract.

Venue 2.1 — foreign corporation — business conducted and office maintained in Wake County — proper venue Wake County was the proper venue for an action between plaintiff foreign corporation and defendant resident of Duplin County where plaintiff conducted business and maintained a regional office in Wake County. N.C.G.S. <cross_reference>1-79</cross_reference>.

Banks and Banking 4 — signature card for joint account — notation limiting withdrawals to one cotenant — notation ineffective to affect survivorship rights Where signature cards for three bank accounts designated a deceased person and defendant "as joint tenants with right of survivorship" and instructed defendant bank "to act pursuant to any one of the joint tenants' signatures . . . in any manner in connection with this account and, . . . to pay . . . to any one or the survivor," a typed addition indicating that withdrawals were to be made only by the deceased person had no effect on defendant's interest in the accounts, since the right of survivorship was properly established under N.C.G.S. <cross_reference>41-2.1</cross_reference>; the intent of the parties was to establish accounts with right of survivorship; the notation limiting withdrawals was a subsequent clause which was irreconcilable with the former clause requiring the bank to honor any of the parties' signatures; and the notation regarding withdrawals was repugnant to the general purpose of the contract.

Automobiles 63.1 — striking child darting into road — sufficiency of evidence of negligence The trial court in a wrongful death action erred in entering summary judgment for defendant where the depositions of the eyewitnesses sharply conflicted as to the speed limit at the scene, the location of the child and a parked car, how the child got into the street, how long he was there before being hit, and how fast defendant was driving his car, and such evidence raised an issue as to whether defendant maintained a proper lookout.

Divorce and Alimony 30 — equitable distribution — equal division — appeal dismissed Plaintiffs appeal from an order of equitable distribution has no merit where the parties agreed to an equal division of the property; they stipulated that their property consisted of certain items and stipulated as to the value of much of the property; and plaintiff did not except to any of the trial court's findings of fact.

1. Master and Servant 8.1 — violations of FLSA alleged — findings as to compensation and intent of employer and employees In an action to recover for alleged minimum wage and overtime violations of the federal Fair Labor Standards Act, the trial court's findings that the salaries and other remuneration paid to the plaintiffs were intended by the defendants to compensate plaintiffs for the first forty hours worked each week were supported by the evidence insofar as those findings related to the periods during which the plaintiffs were employed to work 24-hour shifts, and such findings were not precluded by a stipulation of the parties in their pretrial order that, "The plaintiffs received paychecks on a monthly basis while employed with the defendants, which said checks were to be compensation for all hours worked"; however, the trial judge's findings that the smaller salaries paid to two plaintiffs for working 12-hour shifts were also intended to compensate for forty hours of work per week were unreasonable and unsupported by the evidence. 2. Master and Servant 10 — violations of FLSA alleged — dates of employment — stipulation waived by employer In an action to recover for alleged minimum wage and overtime violations of the federal Fair Labor Standards Act, defendant employers waived their right to rely on a stipulation regarding dates of employment where ample evidence supporting the trial court's challenged findings was offered at trial by both plaintiffs and defendants, and the evidence was received without any objection by defendants. 3. Master and Servant 8.1 — alleged violations of FLSA — supervisors in group care facilities for the elderly — employees working 24 hours per day — sufficiency of evidence In an action to recover for alleged minimum wage and overtime violations of the federal Fair Labor Standards Act, evidence was sufficient to support the trial judge's finding that plaintiffs, who were live-in supervisors in defendants' residential group care facilities for elderly people, worked 24 hours per day when employed full time where that finding was based in turn upon other findings by the court that, while on duty, plaintiffs were not allowed to leave the premises; their presence on the premises at all times was for<page_number>Page 290</page_number> defendants' benefit; their sleep was frequently interrupted by the necessity of attending to residents; and they had to pay substitutes from their own resources when they took time off other than their regular allotted time. 4. Master and Servant 8.1 — alleged violations of FLSA — calculation of back wages — consideration of lodging provided by employer In an action to recover for alleged minimum wage and overtime violations of the federal Fair Labor Standards Act, the trial court erred in its calculations of back wages liability by inconsistently granting credit to defendant employers for lodging provided to one plaintiff but refusing them credit for lodging provided to two other plaintiffs based on its finding that the lodging was "not suitable and adequate" and "not comparable" to plaintiffs' own homes, since the condition of the lodging provided may have been relevant to its value, but the evidence here did not support a finding that the lodging was of no value; there is no requirement that the lodging provided must be comparable to the employee's own home or that there must be an express agreement between employer and employee in order to include the value of lodging in an employee's wages; and the critical issue is whether the benefit is provided primarily for the benefit of the employee. 5. Master and Servant 8.1 — alleged violations of FLSA — insufficiency of good faith belief defense — award of both liquidated damages and prejudgment interest improper Although defendant employers presented some evidence tending to show that their violation of the Fair Labor Standards Act was in good faith, the trial court found that they had not satisfactorily established a good faith and reasonable belief defense, and it was within the sound discretion of the trial court to award liquidated damages; however, the court could not award both liquidated damages and prejudgment interest. 6. Master and Servant 8.1 — alleged violation of FLSA — test of willfulness — insufficiency of showing — extension of period of limitations improper The appropriate test for determining whether a violation of the Fair Labor Standards Act is willful is not whether the employer is aware of the possible applicability of the Act but whether the employer knew or showed a reckless disregard for the matter of whether its conduct was prohibited by statute; therefore, in the absence of such evidence of knowledge or reckless disregard in this case, the trial court erred in finding willfulness and in extending the period of limitations to three years based on that finding.

1. Criminal Law 76.2 — voir dire hearing — no questioning of witness allowed — defendant not prejudiced The trial court did not err by denying one defendant the right to cross-examine or question a police officer or to present evidence during a voir dire hearing, since there was no statement made by defendants to the witness, and there was therefore no attempt to introduce any evidence that even required a voir dire hearing; the trial court proceeded to allow a voir dire on the admissibility of certain exhibits, although there had been no request to do so, but the court ended the voir dire before one defendant's counsel had a chance to question the witness; and no undue prejudice could have occurred thereby because a voir dire was not necessary at that point, and defendants had a later opportunity to object to admission of the exhibits, which were in fact admissible. 2. Criminal Law 162 — hearsay evidence — similar evidence subsequently admitted without objection Defendants could not complain that the trial court improperly admitted hearsay evidence with regard to ownership of a car where similar evidence was subsequently admitted without objection. 3. Criminal Law 45 — bolt cutters — experimental evidence admissible In a prosecution of defendants for possession of implements of housebreaking, the trial court did not err in admitting testimony concerning an experiment with a pair of bolt cutters; furthermore, a proper foundation was laid for admission of the bolt cutters where the witness adequately identified the bolt cutters as those found at the crime scene. 4. Criminal Law 61.2 — shoe print evidence — admissibility In a prosecution of defendants for possession of implements of housebreaking and attempted breaking or entering, the trial court did not err in admitting testimony concerning shoe print comparison evidence. 5. Criminal Law 34 — testimony by officer that he knew defendant by another name — evidence prejudicial The trial court erred in allowing into evidence testimony by a police officer that he knew one defendant by another name, that defendant's fingerprints matched those of another individual, and that the officer<page_number>Page 376</page_number> knew defendant as that individual from another county, since the identity of defendants was not in question in this case and the testimony was not admissible under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404(b) to show identity, and since the testimony implied the commission of other crimes or wrongs by defendant. Even if the testimony did not present evidence of other crimes, wrongs or acts prohibited by Rule 404(b), it was irrelevant and unduly prejudicial.

Insurance 69; Master and Servant 89.4 — underinsured motorist coverage — no reduction for workers' compensation payments — subrogation by compensation carrier Where an employer provided an employee automobile liability and underinsured motorist insurance coverage, and the employee was injured in an automobile accident during the course and scope of his employment, the automobile insurer was not entitled to reduce its underinsured motorist obligation to the employee by the amount of workers' compensation paid to the employee. However, pursuant to N.C.G.S. <cross_reference>97-10.2</cross_reference>(j), the compensation insurer can be subrogated for the amount of workers' compensation paid by it to the employee. N.C.G.S. <cross_reference>20-279.21</cross_reference>(e).<page_number>Page 394</page_number>

1. Divorce and Alimony 30 — equitable distribution — expenses incurred because of failure of one spouse to cooperate — consideration proper in making award Failure to comply with discovery orders or misconduct during the course of litigation may not be considered as a factor in determining the distribution of marital property; however, when the failure to assist in the compilation and valuation of marital property during litigation causes one party to incur additional expenses, the court may consider such a purely financial consideration in making its distributive award. 2. Divorce and Alimony 30 — equitable distribution — pensions — seven-day interval between separation and valuation of pensions Though it is true that an equitable distribution award should be based upon a vested accrued benefit which is calculated as of the parties' separation date, defendant failed to demonstrate that either of the parties made any additional contributions or that any additional interest had accrued to the parties' pensions during the seven-day interval between the parties' date of separation and the date of valuation. N.C.G.S. <cross_reference>50-20</cross_reference>(b)(3)(d). 3. Divorce and Alimony 30 — equitable distribution order — modification of child support order — time for entry of each Modification, upon request, of a child support order concerning the depository at which payments may be made does not come within the rule that an equitable distribution order must be entered prior to alimony or child support awards, or modification of those already in existence; therefore, the request in this case could be granted or denied within the court's discretion and at the time of its choosing.

Automobiles 130.1 — impaired driving — punishment — aggravating factor of previous convictions outweighing mitigating factor of five years clean driving In the sentencing phase of defendant's trial for unlawfully and willfully operating a motor vehicle while subject to an impairing substance in violation of N.C.G.S. <cross_reference>20-138.1</cross_reference>, the trial judge acted well within his discretion in finding that the aggravating factor of three prior convictions of impaired driving, though more than seven years before, substantially outweighed the mitigating factor of a clean driving record for more than five years prior to the present conviction. N.C.G.S. <cross_reference>20-179</cross_reference>(f).

Negligence 29; Appeal and Error 24 — damages in plane crash — no directed verdict or judgment n.o.v. — necessity for exceptions — no questions presented for review In an action to recover damages for the alleged negligence of defendant in the transportation of certain cancelled checks which were burned, mutilated, or destroyed in a plane crash, plaintiff was not entitled to a directed verdict or to judgment n.o.v. where plaintiffs evidence did not compel a finding that defendant was negligent; defendant denied that it was negligent and denied that its actions were the proximate cause of plaintiffs alleged damages; and defendant introduced evidence that its pilot could have suffered a sudden physical incapacitation which caused the crash, and this raised a genuine issue of fact for the jury. Furthermore, a number of plaintiffs assignments of error were not supported by exceptions duly noted in the record or transcript, and they thus presented no question for review.

1. Administrative Law 4 — order of State Personnel Commission not within required time — reinstatement of hearing officer's decision not available remedy Though the State Personnel Commission's decision was delayed by a total of ten days beyond the time allowed by statute for rendering its decision, petitioner's requested relief, having the hearing officer's decision reinstated, was unavailable. N.C.G.S. <cross_reference>150B-44</cross_reference> (1986) (amended 1987). 2. Administrative Law 3; State 12 — recruitment of college graduates — refusal to accept equivalencies for educational requirement — no arbitrary or capricious action The Department of Social Services did not act in an arbitrary and capricious manner in refusing to accept equivalent training and experience in the place of minimum educational requirements for an advertised position, and N.C.G.S. <cross_reference>128-15</cross_reference> providing for "[e]mployment preference for veterans" would not allow petitioner to sidestep the educational requirement, since that statute specifically provides that preference will be given to "qualified veteran applicants."

1. Divorce and Alimony 26.3 — increase in child support sought — child in North Carolina since 1982 — North Carolina as home state In a proceeding for an increase in child support, the trial court did not err in finding as a fact that North Carolina was the home state of the child where the child and plaintiff had resided in Winston-Salem since 1982. 2. Divorce and Alimony 26.2 — foreign child support order — no showing of changed circumstances — modification improper The trial court erred in modifying an existing child support decree from Georgia where there were no findings of fact or conclusions of law showing a change of circumstances. N.C.G.S. <cross_reference>50-13.7</cross_reference>(b). 3. Rules of Civil Procedure 12.1 — lack of in personam jurisdiction — defense first raised on appeal — defense waived Defendant waived his right to raise as a defense the trial court's lack of in personam jurisdiction because he failed to raise it in his answer or motions but presented it for the first time on appeal. N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 12(h)(1).

Easements 5.3 — easement by implication — alternate means of ingress and egress — reasonable necessity for easement The trial court's findings of fact were sufficient to support its conclusion that an easement by implication existed across defendants' land where the court found that title was separated when the parties' common predecessor in title divided the property he owned and conveyed the pieces of property in question to his two sons; the road in question was used before the separation, and the parties intended it to be permanent; that the road was extended in 1938 and moved in 1945 was of no consequence because these changes were made with the consent of all interested parties; and the road across defendants' property was reasonably necessary for the use, benefit, and enjoyment of plaintiffs property, even though an alternate means of ingress and egress existed, since it would have cost a large sum of money to make the other route usable, and the original parties intended the use of the road in question.

Larceny 7.8 — felonious larceny from drugstore — sufficiency of evidence — mistrial on breaking or entering charge Defendant could properly be convicted of felonious larceny pursuant to a breaking or entering, though there was a mistrial on the breaking or entering charge, and evidence was sufficient on the larceny charge where it tended to show that defendant's friend dropped him off in front of a drugstore with a duffel bag and a "bumper jack"; the friend immediately heard glass breaking and an alarm sound; he drove up the road two miles and then returned for defendant; the friend saw that defendant's duffel bag appeared heavy; the two left the area; defendant and his girlfriend examined the drugs which defendant had taken, discarding them when he discovered that they were not what he wanted; and the drugs were valued at over $900.

1. Divorce and Alimony 25.9 — child custody — change of prior order — sufficiency of evidence of changed circumstances In a proceeding for a change in child custody where there were allegations that defendant's boyfriend, who later became her husband,<page_number>Page 470</page_number> had sexually abused the child, there was no merit to plaintiff's contention that the trial court, by ignoring the concerns reflected in prior custody orders restricting the boyfriend's presence around the child, exceeded its authority and issued an invalid order which placed custody with defendant for ten months of the year, since the prior orders were modifiable upon appropriate evidence of changed circumstances; the court found as changed circumstances defendant's marriage to her boyfriend and the child's recurring cases of vaginitis, which it concluded showed poor hygiene and supervision; and it found these circumstances sufficient to remove all restrictions imposed by prior orders on the boyfriend's presence around the child. 2. Divorce and Alimony 25.9 — child custody — sexual abuse alleged — failure to make findings about child's statement — no error The trial court in a child custody proceeding did not err in failing to resolve whether or why statements were made by the child concerning painful sexual contact with a man named "Rod," the same name as that of defendant's boyfriend, since the trial court was not required to make findings of fact on every issue presented by the evidence, but was required to and did find enough material facts to support its judgment. 3. Evidence 33; Divorce and Alimony 25.9 — change of child custody — sexual abuse of child — hearsay testimony not prejudicial Because both parties in this child custody proceeding presented a considerable amount of conflicting evidence regarding alleged sexual abuse of the child, the admission of testimony that the Burke County Department of Social Services conducted an investigation and "unsubstantiated" the charges was not prejudicial, even if the testimony did have characteristics of hearsay. 4. Evidence 33.2 — child examined by psychiatrist — examinations not made in preparation for trial — testimony as to child's statements admissible Where the parties' child was examined seven times by an expert in child psychiatry, statements made to the doctor by the child were admissible under the medical diagnosis and treatment exception to the hearsay rule where the record was insufficient to support defendant's contention that the examinations were conducted only for the purpose of trial. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 803(4) (1986).

1. Conspiracy 5.1 — evidence of participation of acquitted co-conspirator allowed — erroneous admission In a prosecution of defendant for conspiring to traffic in more than 400 grams of cocaine, the trial court erred in admitting evidence of the participation of a previously acquitted individual in the alleged conspiracy. 2. Narcotics 4.6 — instructions on "knowing" possession of cocaine — no error The trial court's instruction to the jury that if they found that defendant "knowingly possessed cocaine, and that the amount which [he] possessed was four hundred grams or more, it would be [their] duty to return a verdict of guilty of trafficking in cocaine" was not error, though the court failed to include the modifier "knowingly" in the<page_number>Page 475</page_number> second clause of the instruction, since the evidence showed that defendant carried over 900 grams of cocaine, and it was for the jury to decide whether this was a knowing possession. 3. Criminal Law 7 — undercover drug operations — instruction on entrapment not required In a prosecution for conspiring to traffic in more than 400 grams of cocaine, possessing more than 400 grams of cocaine, and transporting more than 400 grams of cocaine where defendant was apprehended as the result of an undercover operation, defendant was not entitled to an instruction on entrapment.

1. Contracts 27.3 — insufficiency of evidence of lost profits Plaintiff, who allegedly agreed to provide cost estimates, supervision, equipment, and laborers on concrete construction jobs to be performed by defendant, failed to establish an essential element of his case, the amount of damages for lost profits, and the trial judge was therefore correct as a matter of law in peremptorily instructing the jury that no more than nominal damages could be awarded on plaintiffs breach of express contract claim where there was no evidence showing the actual costs incurred in each of the seven jobs in question; evidence of proceeds, but not profits, was presented for only three of the seven jobs; plaintiff alleged that defendant failed to produce certain documentary evidence subpoenaed by plaintiff, but plaintiff sought no sanctions and failed to call defendant as an adverse witness; plaintiffs estimates of both the costs and proceeds for most of the jobs did not provide a sufficient basis for the jury to determine lost profits; and when a prima facie case of breach of contract is made out, but there is not evidence upon which a jury could base a damage award, the injured party is still entitled to nominal damages. 2. Quasi Contracts and Restitution 2 — express contract found — quantum meruit claim not considered — no error The trial court did not err in instructing that, if the jury found an express contract between the parties providing that plaintiff would furnish expertise, supervision, equipment and laborers on concrete construction jobs to be performed by defendant, it could not consider plaintiffs quantum meruit claim for expenses incurred in furnishing materials and equipment and paying laborers' wages, since a party may not recover for both a breach of an express contract and for quantum meruit based on the same subject matter.

1. Insurance 81 — automobile liability insurance — assigned risk policy — notice of cancellation required from insurer N.C.G.S. <cross_reference>20-309</cross_reference>(e) (1983), applicable at all times relevant to this case, required plaintiff insurer to notify the Division of Motor<page_number>Page 506</page_number> Vehicles of the lapse in an insured's automobile liability coverage, and there was no merit to plaintiff's contention that subsection (e) meant that the Commissioner could waive the notice requirement; rather, the words of that statute merely allowed the Commissioner to direct the manner by which the insurer should furnish such notice. 2. Insurance 81 — automobile liability insurance — termination of assigned risk policy — failure to notify DMV — insurance coverage continued Pursuant to N.C.G.S. <cross_reference>20-309</cross_reference>(e) (1983), plaintiff had a duty to notify the Division of Motor Vehicles of the termination of insured's automobile liability policy, and its failure to so notify continued to give effect to the insurance coverage.

1. Appeal and Error 6.9; Jury 1 — jury trial allowed — appealability of order The State could properly appeal from an interlocutory order denying its motion to deny defendant's request for a jury trial, since the right not to have a case tried by a jury is a substantial right. 2. Jury 1 — destruction of coastal wetlands alleged — landowner's right to jury trial Where plaintiff alleged that defendant destroyed coastal wetlands and contaminated estuarine waters, and plaintiff sought an injunction to enjoin defendant from developing or filling in any more lands and to require her to remove materials illegally put there, Article I, 25 of the North Carolina Constitution applied to provide defendant with a trial by jury, since the controversy here was one "respecting property," in that it affected defendant's right to use her property as she saw fit, and it was one "at law," in that its purpose was to rectify damage allegedly done to the land held in trust for the public by requiring defendant to restore the land to its former condition or pay damages therefor.

Bastards 8.1 — criminal charge of failure to support illegitimate child — not guilty verdict — no res judicata on paternity issue A general verdict of not guilty of an N.C.G.S. <cross_reference>49-2</cross_reference> criminal charge, willful neglect or refusal to provide adequate support for one's illegitimate child, does not operate as res judicata on the issue of paternity in a subsequent N.C.G.S. <cross_reference>49-14</cross_reference> and -15 civil action to establish paternity and require support of an illegitimate child.

Robbery 1.2 — common law robbery lesser offense of armed robbery Defendant who was indicted and tried for armed robbery in violation of N.C.G.S. <cross_reference>14-87</cross_reference> could properly be convicted of common law robbery as a lesser included offense.

Homicide 26, 2.1 — second degree murder — instruction on acting in concert — error The trial court erred in a prosecution for a second degree murder which arose from a robbery by giving the jury an instruction which could have allowed a conviction for second degree murder based on the mens rea for robbery. Mens rea must be shown as to each defendant for crimes requiring a specific mens rea, even where defendant is charged on a theory of aiding and abetting or acting in concert; furthermore, North Carolina does not recognize second degree felony murder. Even though the final mandate in this case was correct, it cannot be certain that the correct statement of the law remedied the confusion caused by the faulty instruction.

Criminal Law 86.3 — cross-examination concerning prior escape attempt — no error The trial court did not abuse its discretion in a prosecution for first degree sexual offense by allowing further questioning of defendant regarding a prior escape where defendant's arrest record did not reflect a conviction and the court had instructed the jury to disregard earlier testimony concerning any conviction for escape. The additional inquiry did not challenge defendant's denial of the escape conviction; rather, it had the effect of clarifying defendant's prior response.

1. Criminal Law 86.3; Constitutional Law 75 — entrapment raised by defendant — cross-examination about prior drug sale — privilege against self-incrimination waived Where defendant raised the issue of entrapment by his own testimony, he waived his privilege against self-incrimination regarding a prior sale of cocaine to an undercover SBI agent. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404(b). 2. Criminal Law 102.8 — jury argument — comments about defendant's "taking the Fifth" — no improper comment on defendant's refusal to testify Where defendant continued to assert a privilege not to answer questions regarding a prior cocaine sale after the trial court had ruled no privilege existed, the district attorney's comments during closing argument concerning defendant's "taking the Fifth" were not improper comments on defendant's decision not to testify but rather were directed at defendant's improper attempt to assert the privilege. 3. Criminal Law 99.5 — statement by court — no expression of opinion about defendant's evidence Defendant was not prejudiced by the court's statement, "We have entertained a lot of irrelevant evidence that nobody objected to," since that comment was directed at the State's repetitious and irrelevant questions rather than at defendant's evidence or witnesses. 4. Criminal Law 138.14 — three mitigating factors outweighed by one aggravating factor — no abuse of discretion In a prosecution of defendant for possession with intent to sell and deliver cocaine, the trial court did not abuse its discretion in determining that the one aggravating factor of a prior conviction outweighed three mitigating factors and in imposing a term of imprisonment greater than the presumptive sentence. 5. Criminal Law 138.14 — sentence greater than presumptive term — failure to find aggravating and mitigating factors — error Where the presumptive sentence for sale of cocaine was three years, but the trial court imposed a prison term of ten years, the court was required to find factors in aggravation and mitigation, and it was not sufficient that the court made such findings as to the possession conviction.

Searches and Seizures 26 — search warrant for defendant's home — affidavit insufficient to show probable cause — week-old information from informant An affidavit was insufficient to show that probable cause existed for issuance of a warrant to search defendant's residence and evidence seized pursuant to the warrant was properly suppressed where information from a reliable informant showed that defendant possessed one pound of marijuana approximately a week earlier at her home and information from another informant showed that defendant was selling marijuana at an unspecified location the day the warrant was issued; the week-old information was too stale to establish probable cause; and the information concerning sale of marijuana was not shown to be from an informant whose information had proven reliable in the past, nor was the information specific as to location.

Master and Servant 10.2; Limitation of Actions 3.2 — wrongful discharge — statute of limitations extended Where plaintiff was allegedly wrongfully discharged on 23 January 1985, and on 8 July 1985 the legislature amended N.C.G.S. <cross_reference>97-6.1</cross_reference>(f) by substituting a one-year limitation period for the previous six-month period in actions for wrongful discharge, the amended statute applied to plaintiffs action commenced on 18 October 1985 so that it was not barred since the statute in question was a statute of limitations rather than a statute containing a condition precedent.<page_number>Page 637</page_number>

1. Divorce and Alimony 24.4 — child support — failure to comply with order — willfulness required in order to find contempt — voluntary bankruptcy as willfulness Before a person may be held in civil contempt for failure to comply with a child support order and punished by proceedings for criminal contempt, his failure to comply with the court order must be willful; however, a defendant may not deliberately divest himself of his assets by voluntarily placing them in bankruptcy and thereby render himself unable to comply with the order so that he can escape a contempt citation. N.C.G.S. <cross_reference>50-13.4</cross_reference>(f)(9); N.C.G.S. 5-21. 2. Divorce and Alimony 24.5 — child support — voluntary filing of bankruptcy — no change of circumstances warranting reduction in payments Defendant's voluntary filing of a petition in bankruptcy did not constitute a substantial change of circumstances which would warrant a reduction in his child support payments where the record revealed that defendant had ample opportunities and assets through which he could have reorganized his finances and also fulfilled his financial responsibility to his family.<page_number>Page 700</page_number> 3. Divorce and Alimony 27 — child support — award of attorney's fees without proper findings — error The trial court erred in awarding plaintiff attorney's fees in an action for child support where the court failed to make any statutorily required findings of fact as to whether plaintiff acted in good faith and had insufficient means to defray the expenses of the action and whether defendant refused to provide adequate support under the circumstances existing at the time of the institution of the action. N.C.G.S. <cross_reference>50-13.6</cross_reference>.

Master and Servant 79; Appeal and Error 7 — distribution of wrongful death recovery by Industrial Commission — no right of allegedly illegitimate children to appeal Where an employee died as a result of a work-related accident caused by the negligence of two third-party tort-feasors, and a wrongful death suit was settled for $160.000 by a consent judgment directing that the funds be turned over to and distributed by the North Carolina Industrial Commission in accord with the provisions of N.C.G.S. <cross_reference>97-10.2</cross_reference>(f)(1), the<page_number>Page 735</page_number> allegedly illegitimate adult daughters of the employee were not entitled to appeal from the order of the Industrial Commission, since the administrator, rather than appellants, was entitled to receive the balance of funds remaining after the court costs, attorneys' fees, and employer's subrogation interest were paid, and the administrator would therefore be the party aggrieved and entitled to appeal.