Volume 93 — North Carolina Court of Appeals Reports

Social Security and Public Welfare 2 — overpayment of benefits to plaintiff's ex-husband — recovery from plaintiff improper A county social services agency could not recoup from plaintiff the AFDC overpayment made to her ex-husband merely because her dependent children were members of the father's assistance unit at the time the overpayment was made, and state and federal regulations which would allow recoupment from any member of the original assistance unit should be disregarded in favor of judicial interpretation of <cross_reference>42 U.S.C.S. 602</cross_reference> which calls for recoupment from the individual applicant.

Insurance 134; Uniform Commercial Code 43 — insurance on collateral — no right of secured party against insurer If a secured party is not named as a loss payee or coinsured on a policy of fire insurance on the collateral, or if the security agreement does not require the debtor to obtain insurance on the collateral for the benefit of the secured party, and there has been no assignment of rights to the insurance policy, then the secured party has no right, legal or equitable, enforceable against the insurer with respect to the proceeds of the policy. N.C.G.S. <cross_reference>25-9-306</cross_reference>.

1. Courts 19; Master and Servant 16.1; Pensions 1 — employer's refusal to bridge prior service — collective bargaining agreement — fraud claim not pre-empted by federal law A state law claim against a former employer for fraud in refusing to bridge plaintiff's prior service with an affiliated company for all purposes after plaintiff had worked for defendant for five years because a collective bargaining agreement prohibited bridging prior service at another company was not pre-empted under Sec. 301 of the Labor Management Relations Act since plaintiff's claim was not founded directly upon the terms of the collective bargaining agreement and required no interpretation of the agreement. 2. Limitation of Actions 8.1 — employer's refusal to bridge prior service — notice of fraud — jury question Plaintiff's 1985 claim against his former employer for fraud in refusing to bridge plaintiff's prior service with an affiliated company for all purposes, including layoffs, after five years of employment with defendant because a collective bargaining agreement prohibited bridging prior service of another company was not barred by the three-year statute of limitations as a matter of law; rather, the evidence presented a jury question as to whether plaintiff was put on notice of the alleged fraud in 1981 by a disposition of his grievance, which focused on whether plaintiff's credited service entitled him to preferential selection of work schedules and vacation times, or whether plaintiff reasonably continued to rely upon defendant's representations until 1983 when, after five years of employment with defendant, he was laid off.<page_number>Page 369</page_number> 3. Master and Servant 10 — fraud action against employer — employment at will doctrine inapplicable Plaintiff's claim against his former employer for fraud in refusing to bridge his prior service with an affiliated company for all purposes after five years of employment with defendant was not barred by the employment at will doctrine.

1. Constitutional Law 31 — refusal to appoint psychiatrist Motion by an indigent defendant charged with statutory rape and first degree sexual offense for the appointment of a psychiatrist to examine and test defendant was properly denied by the trial court where defendant's assertions that the requested assistance would be beneficial were not sufficiently particularized. 2. Criminal Law 161.2 — assignment of error not pertinent to argument — abandonment Where an assignment of error set forth in defendant's brief relating to a particular argument is not pertinent to<page_number>Page 381</page_number> the question argued, the assignment of error set out in the brief is deemed abandoned. Appellate Rule 28(b)(5). 3. Criminal Law 102.9 — prosecutor's jury argument — reference to defendant as "animalistic" The trial court did not abuse its discretion in failing to respond to defendant's objection when the prosecutor called defendant an "animalistic human being" during closing arguments in a statutory rape and first degree sexual offense case. 4. Criminal Law 89.3 — corroboration — extrajudicial statement of another — harmless error The trial court erred in permitting a witness to corroborate her own testimony with an extrajudicial statement of another, but such error was not prejudicial. 5. Criminal Law 102.2 — opening statement — trial court's interruption and classification as jury argument The trial court did not abuse its discretion in interrupting defense counsel during his opening statement and telling him that he was "arguing to the jury" when counsel stated that defendant "is convinced that you will find that he's not guilty" and again when counsel stated that the evidence will show "one thing about which there is no disagreement." However, the trial court did abuse its discretion in interrupting counsel and classifying as argument his statement asking the jury to consider each piece of evidence carefully, but such error was not prejudicial. N.C.G.S. <cross_reference>15A-1221</cross_reference>(a)(4) (1988); Rule 9, General Rules of Procedure for Superior and District Courts. 6. Criminal Law 102.5 — question about "rolling" cigarette — absence of prejudice The prosecutor's question to a witness as to whether defendant "rolled" a cigarette was not prejudicial, even if it implied the use of an illegal substance, where defendant admitted at trial that he smoked marijuana, took Valium and drank heavily on the day in question. 7. Criminal Law 102.5 — improper question by prosecutor — absence of prejudice Assuming the prosecutor's question to a witness, "You didn't see another diaper in the room anywhere?" erroneously<page_number>Page 382</page_number> permitted the prosecutor in essence to testify about items in the room, the court's allowance of such question was not prejudicial to defendant. 8. Criminal Law 86.1 — credibility of defendant — events day before crime The State's questioning of witnesses about events which occurred the day before the crimes for which defendant was on trial was properly permitted for consideration by the jury on the issue of defendant's credibility. 9. Constitutional Law 81 — consecutive life sentences — no cruel and unusual punishment Consecutive life sentences imposed on defendant for first degree rape and first degree sexual offense were not grossly disproportionate because the crimes were committed within moments of each other and thus did not constitute cruel and unusual punishment.

1. Judgments 5.1; Rules of Civil Procedure 60.2 — payment into court — erroneous interlocutory order An interlocutory order of the court requiring plaintiff to pay into court $46,704.88 in rents collected for property sold to one defendant was erroneous and must be reversed. The order was not properly entered under N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 60(a) as a clarification of a previous order because it involved matters of a "serious or substantial nature." Nor was it proper under N.C.G.S. <cross_reference>1-508</cross_reference> where plaintiff made no admission that the money belonged to another but contended that he had the right under the contract of sale to continue to act as landlord and collect rents. 2. Contempt of Court 3 — failure to comply with erroneous order Because an erroneous order is valid until corrected, plaintiff could be held in contempt for failure to comply with an erroneous order requiring him to pay collected rents into court. 3. Rules of Civil Procedure 41.2 — failure to comply with court order — dismissal of complaint — necessity for considering lesser sanctions Before the trial court may dismiss a plaintiff's complaint under Rule 41(b) for failure to comply with a court order, it must first consider other less severe sanctions. The circumstances of each case must be carefully weighed so that the sanction properly takes into account the severity of the party's disobedience, and the court should make findings and conclusions as to whether less drastic sanctions would be effective in ensuring compliance with the court's order or would best serve the interests of justice.

1. Pleadings 33.3 — automobile accident — motion to amend complaint denied — no abuse of discretion The trial court did not abuse its discretion in denying plaintiffs' motion to amend her complaint in an action arising from the collision of plaintiff's moped with defendants' automobile where the motion to allege that either Mr. or Mrs. Lyons negligently operated the automobile was filed seven months after defendants' original answer admitting that Clarrie Lyons owned and was operating the automobile, six months after defendants offered the certificate of title as proof of ownership and requested plaintiffs to admit that Clarrie Lyons owned the automobile; and, although the motion was filed only six weeks after a deposition revealed that a thirteen-year-old witness had seen a man's hat and jacket in the front seat of the automobile but had not seen who was driving, defendant Robert Lyons' motion for summary judgment had already been filed and over three years had passed since the accident without any mention of liability based on Robert Lyons' operation of the vehicle. N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 15(a). 2. Automobiles and Other Vehicles 50 — collision of automobile and moped — summary judgment for one defendant — no error The trial court did not err in an action arising from the collision of an automobile with a moped by granting defendant Robert Lyons' motion for summary judgment where the materials before the trial court established that Clarrie Lyons owned the automobile and was driving it at the time of the<page_number>Page 454</page_number> collision and there was no basis on which to hold Robert Lyons liable for negligence. 3. Rules of Civil Procedure 56.4 — summary judgment — deposition contradicting admissions in pleadings The trial court did not err in an action arising from the collision of an automobile with a moped by refusing to consider a deposition in support of plaintiffs' motion to amend the complaint and in response to one defendant's motion for summary judgment to the extent that that testimony might show that someone other than Clarrie Bell Lyons was driving the automobile. A party may not create a genuine issue of material fact in order to avoid summary judgment by presenting deposition testimony which contradicts prior judicial admissions in his pleadings. 4. Parent and Child 5.1 — injury to minor child — standing of noncustodial grandmother to bring action The trial court did not err in an action arising from the collision of an automobile and a moped by granting summary judgment for defendants on plaintiff Edith Brown's individual claim as parent of the injured Bernita Brown where neither plaintiffs' evidence before the court nor the pleadings establish that Edith Brown had legal custody of Bernita or was responsible for Bernita's medical expenses. Moreover, the court did not err by refusing to grant a continuance to allow plaintiffs to secure from Emanuel Brown a waiver of his right to bring the parental claim, allowing Bernita or her grandmother to bring the claim, since there was no basis in law for the action plaintiffs wished to take. 5. Automobiles and Other Vehicles 63.1 — collision of automobile with moped — moped crossing road — summary judgment against defendant improper The trial court erred in granting summary judgment against Edith Brown as guardian ad litem for Bernita Brown in an action arising from the collision of an automobile driven by Clarrie Lyons with a moped ridden by Bernita Brown where two witnesses estimated that the Lyons' car was traveling around 60 miles per hour; Clarrie Lyons testified that she was driving around 45 miles per hour and applied the brakes when she first saw Bernita; she testified that even though she saw Bernita, she did not have time to blow the car horn;<page_number>Page 455</page_number> she remembered pressing hard on the brakes to avoid the collision but there were no skid marks on the road; and she testified that she saw Bernita waiting by the roadside and then the moped "took on off across the road." The evidence presented was sufficient to survive a motion for summary judgment, and whether the presumption that Bernita, age thirteen, was incapable of contributory negligence was rebutted was a question for the jury.

Mortgages and Deeds of Trust 2 — settlement agreement between attorney and client — agreement to purchase real property — purchase money instruments The trial court correctly concluded that a deed of trust and promissory note were purchase money instruments and that plaintiffs were not entitled to a deficiency judgment in an action arising from the settlement of a dispute between plaintiff clients and defendant attorney in which defendant<page_number>Page 492</page_number> agreed to purchase real property from plaintiffs where plaintiffs, residents of Germany, had employed defendant to represent them in the purchase of real property; a dispute arose over defendant's representation; the parties entered a settlement agreement wherein defendant agreed to purchase the real property from plaintiffs; under the agreement, defendant agreed to pay plaintiffs $225,000 in cash at closing and a $330,000 promissory note to be secured by a deed of trust conveying a second lien; defendant paid at closing $225,000 in cash and plaintiff conveyed the property to a corporation owned by the individual defendant, Askatral International, Ltd.; Askatral delivered to plaintiffs a promissory note and deed of trust, both of which stated that they were purchase money instruments, for $330,000; another corporation owned by the individual defendant subsequently purchased the $850,000 note and first deed of trust from Southern National Bank; Askatral failed to make any payments due to plaintiffs on the note; defendant's second corporation, Kelgarash, commenced foreclosure and was successful bidder at the foreclosure sale, paying $850,000 plus any interest that was due to Southern National Bank for the note and deed of trust; plaintiffs sued for $330,000 together with interest, punitive damages, attorney's fees and the imposition of a constructive trust relating to the real property; and the judge, trying the case without a jury, found that defendant Altman fulfilled the obligations imposed upon him by the agreement, that the note and second deed of trust were purchase money instruments, that plaintiffs' remedy was limited to the foreclosure action and that they were not entitled to a deficiency judgment. Defendant Altman satisfied his obligations under the land sale portion of the settlement agreement when the parties closed the transaction and he paid the plaintiffs $225,000 in cash and his corporation executed a promissory note for the remaining $330,000, and the parties' rights and liabilities thereafter arose from the promissory note and deed of trust, not from the settlement agreement. Both the note and deed of trust recited on their faces that they were for the balance of purchase money for real estate as required by N.C.G.S. <cross_reference>45-21.38</cross_reference>; furthermore, plaintiffs' counsel testified that he explained to Mr. Friedlmeier that "the only money [he] could count on getting in this settlement was . . . [the] $225,000 that was to be paid at closing" because it was a purchase money transaction.<page_number>Page 493</page_number>

1. Appeal and Error 6.9 — deposition appearance and attorney fees — order not immediately appealable An order requiring a nonparty witness to appear for a deposition and requiring the witness and her attorney to pay the plaintiff's attorney fees for a motion to compel appearance was not immediately appealable. 2. Rules of Civil Procedure 37, 45 — deposition subpoena — county of issuance — justified opposition — attorney fees A subpoena issued from Mecklenburg County was insufficient to compel the attendance of a nonparty witness for a deposition in Wake County since a subpoena to compel the deposition testimony of a nonparty witness must be issued<page_number>Page 575</page_number> from the county in which the deposition is to be taken. Accordingly, the witness and her attorney were substantially justified in opposing the discovery sought pursuant to the subpoena, and the trial court's imposition of attorney fees on them under Rule 37(a)(4) was error. N.C.G.S. <cross_reference>1A-1</cross_reference>, Rules 37(a)(4) and 45(d)(1).

Master and Servant 108.1 — unemployment compensation — employee of Department of Revenue — discharge for failure to file tax returns A supervisory employee of the N.C. Department of Revenue who was discharged for failure to file 1985 and 1986 state income tax returns on time or to request extensions of time for filing was discharged for misconduct connected with his work within the purview of N.C.G.S. <cross_reference>96-14</cross_reference>(2) and thus is not entitled to unemployment benefits.