Volume 94 — North Carolina Court of Appeals Reports

1. Rules of Civil Procedure 56.7 — trial on merits — denial of summary judgment not appealable The denial of defendant's motion for summary judgment is not reviewable on appeal from a final judgment rendered after a trial on the merits. 2. Negligence 57.6 — fall by store customer — milk on floor — sufficient evidence of negligence Plaintiff's evidence was sufficient for the jury in an action to recover for injuries sustained in a fall in defendant's grocery store where the evidence would permit, but not compel, a jury to find that plaintiff slipped and fell on milk that had been spilled near a check-out lane, and that fifteen to thirty minutes before the accident another customer had notified a store employee about the spilled milk, notwithstanding various witnesses had somewhat differing descriptions of the milk. 3. Negligence 58 — customer's failure to see milk on floor — no contributory negligence as matter of law Plaintiff was not contributorily negligent as a matter of law in failing to see milk spilled on the floor of defendant's<page_number>Page 86</page_number> grocery store as she went from one check-out lane to another where the milk blended in with the color of the floor, and plaintiff was required to keep a lookout at eye level to keep from bumping into racks of magazines and candy separating the check-out lanes.

1. Rules of Civil Procedure 56.1 — summary judgment hearing — insufficient notice — notice requirement waived Although one third party defendant failed to comply with the notice requirements of N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 56 prior to a hearing on its oral summary judgment motion, the third party defendant against whom summary judgment was entered waived the notice requirement where it participated in the hearing and did not object to the lack of notice or request additional time; and the hearing in which third party defendant made its oral motion was held to hear another third party defendant's argument for summary judgment so that argument could have been made against the oral motion. 2. Rules of Civil Procedure 56 — summary judgment — no supporting materials — no opportunity to be heard — summary judgment proper There was no merit to one third party defendant's argument that the trial court erred in granting a summary judgment motion because such defendant was given no opportunity to be heard on the merits of the motion and because no materials were submitted by the parties in support or opposition to the motion, since the trial court could have granted the third party defendant summary judgment based on materials presented by other third party defendants even without a motion therefor. 3. Uniform Commercial Code 12; Negligence 30.1 — sale of roofing materials — no breach of implied warranties — no negligence — summary judgment proper There was no merit to the third party defendant's argument that there were genuine issues of material fact of another third party defendant's negligence and breach of implied warranties in the sale of roofing products where defendant supplied no installation expertise but only non-defective goods and<page_number>Page 164</page_number> thus breached no implied warranty of merchantability; there was no evidence that one defendant relied on the supplier defendant's advice in its selection of the particular roofing system, and thus there was no implied warranty of particular purpose by the supplier; and defendant could not have been negligent in supplying the products since there was no evidence that the products were defective. N.C.G.S. <cross_reference>25-2-314</cross_reference>, <cross_reference>25-2-315</cross_reference>.

1. Quasi Contracts and Restitution 2.1 — sale of equipment — equipment used and returned — quantum meruit — evidence sufficient The evidence was sufficient to support an award of damages on quantum meruit where Evans expressed an interest in purchasing plaintiff's pan, a piece of equipment used to move topsoil and level landscape; plaintiff demonstrated the pan to Evans who then asked if he could try it out on defendant's farm for a day and pay plaintiff's asking price of $10,000 or return the pan; when plaintiff subsequently called Evans to verify his intentions, he was told that Evans wanted the pan; plaintiff replaced a seat and a dust catcher on the pan at Evans' request; Evans transported the pan on a trailer to defendant's farm on 6 May 1985; plaintiff went to the farm the next day, observed Evans and an employee operating the pan, and operated the pan without problems to show defendant's employee how to use the equipment; defendant did not return the pan or bring plaintiff the purchase money nor did he contact plaintiff or leave a message on plaintiff's telephone answering machine; plaintiff on several occasions went to defendant's farm and observed defendant's employee operating the pan; Evans was at the farm on two of those occasions and told plaintiff each time that he wanted to keep the pan a day or two longer; plaintiff did not object, but testified that he had had no choice as he did not have a way to transport the pan back home; defendant kept the pan from 6 May 1985 to 17 June 1985; defendant's employee went to plaintiff's residence a few days before the pan was returned to plaintiff and told plaintiff that they wanted to return the pan but could not get it started; plaintiff went to defendant's farm and discovered that the pan, which had been full of fuel when defendant took it, was empty and that the starter had burned out, possibly from repeated attempts to .start the engine without fuel; plaintiff got the pan running and defendant returned it several days later; Evans subsequently contacted plaintiff<page_number>Page 180</page_number> and asked for a bill for the use of the pan; and plaintiff sent defendant a bill for $15,840 which defendant refused to pay. 2. Quasi Contracts and Restitution 2.2 — use of equipment — measure of recovery — no error The trial court did not err in an action for quantum meruit arising from the aborted sale of landscaping equipment known as a pan by denying defendant's motion for a new trial and motion to alter or amend the judgment on the ground that the jury verdict of $4,000 was excessive, contrary to law, and in disregard of the instructions of the court. Defendant contended that the jury ignored the courts instructions in awarding damages in that the value actually realized and retained by defendant was the eight or ten hours that defendant actually operated the pan, but plaintiff had introduced testimony of an equipment operator who stated that it is appropriate to charge for the number of days equipment is kept rather than the hours in actual use when equipment is leased without an operator; furthermore, the jury could have disbelieved testimony from defendant's witnesses that the pan was only in operation for eight or ten hours, given the number of weeks the pan supposedly sat idle on defendant's farm and defendant's delay in contacting plaintiff regarding his decision not to purchase the pan.

1. Constitutional Law 34 — conviction for four conspiracies — one conspiracy in fact — double jeopardy violation Defendant's conviction for conspiracy to transport cocaine was arrested where defendant was charged with four separate conspiracies which were, in fact, only a single conspiracy.<page_number>Page 251</page_number> 2. Indictment and Warrant 12.2 — conspiracy — indictments-amended to change dates — no error The trial court did not err in a prosecution for conspiracy, possession, delivery, sale, and transportation of in excess of 400 grams of cocaine by allowing the State's oral motion to amend the conspiracy indictments to change the dates of the alleged offenses because the charges were not substantially altered by changing the dates recited in the indictments. Even though the dates were changed the morning of the trial, defendant did not raise an alibi defense or any other defense which would make time critical to his defense; ordinarily, the precise dates of the conspiracy are not essential to the indictment because the crime is complete upon the meeting of the minds of the confederates. 3. Criminal Law 119 — narcotics — requested instructions — not given — no error The trial court did not err in a prosecution for conspiracy and possession, delivery, sale, and transportation of cocaine by failing to give defendant's requested instructions clarifying that the jury could convict him based solely on the evidence of events allegedly occurring on a particular date where the trial court instructed the jury concerning the dates the offenses occurred and stated that defendant was not on trial for any offense not charged in the indictments. The court's instruction was correct and in substance covered the points requested by defendant. 4. Criminal Law 70 — narcotics trafficking — tape recording — admissible <block_quote> There was no prejudicial error in a narcotics prosecution in the admission of four tape recordings which were played for the jury where the recordings were cumulative in that they were made by means of a body recorder and the person on whom the recorder was concealed had previously testified in detail as to each conversation recorded and played for the jury.</block_quote> 5. Criminal Law 67 — recognition of defendant's voice — result of prior threat — no prejudicial error There was no prejudicial error in a narcotics prosecution in the admission of an agent's testimony that defendant had threatened to kill him where, while authenticating tape<page_number>Page 252</page_number> recordings during direct examination, the agent testified that he could recognize defendant's voice because "you don't forget the voice of a person who tells you they are going to kill you." Given defendant's assertions concerning the quality of the tapes, the court found no error in allowing the State's witness to explain why defendant's voice was so recognizable; moreover, the trial court properly limited the use of this portion of the testimony and the evidence was overwhelmingly against the defendant. N.C.G.S. <cross_reference>15A-1443</cross_reference> (a). 6. Judges 5; Criminal Law 99 — plea bargaining — judge's remark — recusal unnecessary The trial court did not err by not recusing himself in a narcotics prosecution where the judge was told in chambers after the jury had been impaneled that no plea arrangement would be forthcoming, the trial judge slammed a piece of paper on the table, angrily indicated that if the case could not be settled, it would be tried, and in an angry tone made a statement indicating that he did not believe the negotiations were being conducted in good faith. The trial judge stated that he had been curt and felt frustrated by what he perceived to he a waste of more than two hours of the jurors' time. Because defendant did not move for the trial judge's disqualification, the determination here is only whether the trial judge should have recused himself, and while this incident demonstrates impatience, it is not sufficient to demonstrate substantial evidence of personal bias, prejudice or interest on the part of the judge. 7. Criminal Law 99.3 — narcotics conspiracy — judge's comment while admitting evidence — no error Defendant in a narcotics prosecution was not deprived of a fair trial where, while overruling an objection, the trial court stated "it's all part of the conspiracy so it can come in." Although it was unnecessary for the trial court to respond as quoted, this single remark in a trial which lasted longer than a week did not deprive him of a fair trial. 8. Criminal Law 138.13, 138.37 — sentencing hearing — refusal to continue — no substantial assistance The trial court did not err in a narcotics prosecution by refusing to continue the sentencing hearing in order to allow defendant time to provide the State with substantial assistance<page_number>Page 253</page_number> so that he might be eligible for a reduced sentence or by failing to find that the information defendant gave to the State was of substantial assistance. The State argued that some of the statements given by defendant were false and there could be doubts as to defendant's credibility in subsequent proceedings; N.C.G.S. <cross_reference>90-95</cross_reference> (h)(5) is permissive, not mandatory, and defendant has no right to a lesser sentence even if he does provide what he believes to be substantial assistance; and the trial court is not required as a matter of law to continue a sentencing hearing so that defendant may be afforded an opportunity to provide the State with substantial assistance. 9. Criminal Law 138.14 — consolidated sentences — no aggravating factors — term in excess of statutory minimum The trial court did not err by sentencing defendant to two consecutive forty-year terms for trafficking in cocaine without finding any aggravating factors where the trial court consolidated four trafficking counts into two judgments per sentencing. The statutory mandatory minimum sentence for each conviction of trafficking in more than 400 grams of cocaine is thirty-five years in prison; since each of the forty-year sentences pronounced is less than the total of the presumptive terms of the consolidated convictions, the trial court's sentences were lawful. N.C.G.S. <cross_reference>90-95</cross_reference> (h)(3)c. 10. Criminal Law 138.14 — trafficking in cocaine — sentence in excess of statutory minimum — no aggravating factors — error The trial court erred when sentencing defendant for conspiracy to sell cocaine by sentencing defendant to a term in excess of the statutory mandatory minimum without finding any factors in aggravation.

1. Searches and Seizures 43 — evidence seized from person — motion to suppress — time for making The trial court could properly summarily deny defendant's motion to suppress evidence seized from his person, since a motion to suppress must be made prior to trial, but defendant failed to make his motion, not only prior to trial, but prior to admission of the evidence. 2. Arrest and Bail 6.2 — resisting public officer — sufficiency of evidence Evidence was sufficient to sustain defendant's conviction for resisting a public officer where it tended to show that an officer mistakenly believed defendant to be a person for whom arrest warrants were outstanding; pictures of that person and defendant showed that they were sufficiently similar in appearance that the officer's mistake was not unreasonable the officers stopped defendant's vehicle to ascertain his identity; the officers were lawfully discharging a duty of their office when they asked defendant to identify himself; once they did so, defendant attempted to flee; because defendant had not identified himself, the officers had no choice but to apprehend him in order to ascertain his identity; and defendant continued to struggle after the officers apprehended him.

Usury 7 — usurious interest — penalties barred by statute of limitations — recovery of legal rate Where the 12% interest rate provided in a business property loan promissory note was usurious at the time the note was executed in 1977, and the forfeiture and double recovery penalties provided by N.C.G.S. <cross_reference>24-2</cross_reference> for usury were barred by the statute of limitations, the holders of the note were entitled to recover interest at the legal rate set by N.C.G.S. <cross_reference>24-1</cross_reference>. Therefore, the holders are entitled to recover 6% interest from the date the note was executed in December 1977 until the legal rate was changed to 8% after the note matured by an amendment to N.C.G.S. <cross_reference>24-1</cross_reference>, effective 1 July 1980, and to recover 8% interest from 1 July 1980 until the judgment is satisfied.

1. Constitutional Law 18 — regulation of escort businesses — overbroad An ordinance regulating escort bureaus was void for overbreadth where the ordinance required escort bureaus to keep a record of transactions with clients or customers; the record<page_number>Page 454</page_number> book was required to be kept on the premises and made available for inspection by the sheriff of the county or one of his deputies; and information concerning the customers or clients and the escorts was required to be recorded, including the names and addresses of each party involved in a transaction. The county established that it had a compelling interest in preventing the use of escorts for pandering and prostitution, the protection of minors and the furtherance of public health, safety and welfare, but the county failed to show that the means employed were drawn so as not to infringe on the associational freedoms of persons who may seek the services of an escort. 2. Constitutional Law 18 — regulation of escort businesses — void for vagueness An ordinance regulating escort bureaus was void for vagueness and therefore violative of due process of law in that the term "escort," while susceptible to the apparent intended meaning of the ordinance, was also susceptible of other connotations. In modern society the term "escort" as defined by the ordinance could include, for example, dance instructors, golf and tennis professionals, personal or social secretaries, and chauffeurs. 3. Constitutional Law 14 — regulation of escort bureaus — violation of law of the land An ordinance regulating escort bureaus violated Art. I, 19 of the North Carolina Constitution where, although the county had established that it had a legitimate objective in promulgating the ordinance in the present case, the means chosen by the county were not reasonable in light of their effect on rights of association guaranteed by the First Amendment.

1. Rules of Civil Procedure 56.4 — summary judgment — failure to submit opposing materials The trial court properly granted summary judgment dismissing plaintiff's claim against the individual defendant for advertising materials furnished for the corporate defendant where plaintiff failed to submit affidavits or other materials opposing the individual defendant's affidavit establishing that he was a mere employee and not liable on any obligation of defendant corporation. Plaintiff's failure to respond to defendants' summary judgment motion was not excused by plaintiff's contention that it was unable through several telephone contacts to get any information from the corporate defendant concerning the individual defendant's title or position with<page_number>Page 484</page_number> the company, since defendant should have utilized the provisions of Rule 56 (f) to obtain such information. 2. Quasi Contracts and Restitution 2 — allegation of express contract — no claim for quantum meruit Even if a marketing company was the corporate defendant's agent in contracting with plaintiff for advertising materials to be used in an advertising campaign for the corporate defendant, plaintiff's allegation of an express contract with the marketing company barred its claim for quantum meruit against the corporate defendant. 3. Rules of Civil Procedure 19 — action for advertising materials — marketing company as necessary party A marketing company was a necessary party to plaintiff's action to recover for advertising materials furnished for the benefit of the corporate defendant, notwithstanding plaintiff alleged that the marketing company was the corporate defendant's agent, since plaintiff's mere allegations are not binding, and depending on the marketing company's status as agent or third party, a fact finder could establish that the marketing company, the corporate defendant, both or neither are liable to plaintiff for the advertising materials. 4. Rules of Civil Procedure 21 — joinder of necessary party not permitted by bankruptcy court — dismissal without prejudice — reinstitution of claim at conclusion of bankruptcy The trial court properly dismissed a claim without prejudice under Rule 12 (b)(7) when plaintiff failed to secure a bankruptcy court's permission to join a necessary party which had declared bankruptcy. The claim may be raised again once the necessary party can be joined upon the conclusion of the bankruptcy proceeding. 5. Rules of Civil Procedure 52.1 — failure to state claim — failure to join necessary party — findings unnecessary to support dismissal order The trial court was not required by Rule 52 (a)(2) to make findings of fact and conclusions of law supporting its dismissal of one of plaintiff's claims for failure to state a claim for relief or its dismissal of plaintiff's second claim for failure to join a necessary party.<page_number>Page 485</page_number>

1. Criminal Law 86.2 — pleas of no contest — convictions for impeachment purposes Defendant's pleas of no contest in prior cases constituted "convictions" about which defendant could be cross-examined for impeachment purposes pursuant to N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 609 (a). 2. Criminal Law 86.3 — admission of conviction — further cross-examination about details — harmless error Although the trial court erred in allowing the State to cross-examine defendant about the details of a prior assault conviction after defendant admitted the conviction, this single inquiry about a single assault was not pre judicial to defendant.

Mortgages and Deeds of Trust 26.1 — notice of foreclosure sale — attempt at personal service required Defendant was not properly served with notice of a foreclosure hearing pursuant to N.C.G.S. <cross_reference>45-21.16</cross_reference> and for that reason was not liable for any deficiency arising from the foreclosure sale where the trustee admitted in his deposition that he made no effort to serve defendant personally even though he had an address for defendant in his files- at the time of the foreclosure hearing, the trustee knew defendant had been served by posting only; the trustee did not attempt to mail the notice to defendant; and N.C.G.S. <cross_reference>45-21.16</cross_reference> allows service upon a party by posting the notice only in those instances where the party's name and address are not reasonably ascertainable.

1. Appeal and Error 6.2 — summary judgment for fewer than all parties — judgment not final but appealable In an action to recover for injuries sustained in an automobile accident, entry of summary judgment for fewer than all defendants was not a final judgment but was nevertheless appealable, since plaintiffs had a substantial right to have the liability of both defendants determined in the same trial in order to avoid the possibility of inconsistent verdicts.<page_number>Page 568</page_number> 2. Automobiles and Other Vehicles 102 — employee driving home from work — employee not acting in course of employment — employer not liable for injuries resulting from employee's negligence There was no genuine issue of fact as to whether defendant employee was acting within the course of his employment at the time of the accident giving rise to this action where the evidence showed that defendant had completed his work for defendant employer and was giving a ride home to a fellow employee at the time of the accident; defendant's job did not require him to drive employees home and he received no compensation for doing so; and defendant employer did not order or request defendant employee to drive his co-worker home.

Municipal Corporations 2.4 — annexation of noncontiguous area-owners of property outside area to be annexed — no standing to sue Plaintiffs who were citizens, residents, property owners, and taxpayers in defendant town had no standing to challenge defendant's annexation of 89.68 acres of noncontiguous property, since N.C.G.S. <cross_reference>160A-38</cross_reference> and <cross_reference>160A-50</cross_reference> allow only the owners of property in the annexed territory to challenge the annexation in court.

1. Rules of Civil Procedure 41.1 — voluntary dismissal without prejudice — effect of motions for summary judgment and attorney fees Defendants' motions for summary judgment and for attorney fees under N.C.G.S. <cross_reference>6-21.5</cross_reference> and <cross_reference>75-16.1</cross_reference> were not claims for affirmative relief which prevented plaintiffs from taking a voluntary dismissal without prejudice under Rule 41 (a)(1). 2. Attorneys at Law 7.5; Rules of Civil Procedure 11 — voluntary dismissal without prejudice — attorney fees not allowable Attorney fees could not be awarded to defendants under N.C.G.S. <cross_reference>6-21.5</cross_reference> and <cross_reference>75-16.1</cross_reference> after plaintiffs took a voluntary dismissal without prejudice because there was no adjudication on the merits and thus no "prevailing party." furthermore, even if plaintiffs filed the complaint against defendants without making reasonable inquiry as to either the facts or law of<page_number>Page 595</page_number> the case, attorney fees could not be awarded to defendants under N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 11 (a) since that statute applies only to pleadings filed after 1 January 1987 and plaintiffs' complaint was filed before that date.

1. Divorce and Alimony 24 — child support order — ten-year statute of limitations applicable A child support order is a judgment directing payment of a sum of money and as such falls within the ten-year statute of limitations provided in N.C.G.S. <cross_reference>1-47</cross_reference>. The statute of limitations begins to run against each support payment as it becomes overdue, not from the date the decree ordering support was entered, and accordingly there is no bar to recovery of unpaid child support payments which have come due during the ten years immediately prior to the filing of a claim for past due support. 2. Divorce and Alimony 24.10 — child support — obligation terminated by children's adoption — pre-adoption obligation not affected A father's obligation to provide support for his children was a continuing one which ceased only when the children were adopted by their stepfather, and in the absence of evidence that the mother waived her right to the past due payments, nothing about the subsequent adoption affected the father's pre-adoption obligation to provide support for his children, and nothing about the subsequent adoption affected the applicable statute of limitations.