Volume 95 — North Carolina Court of Appeals Reports

1. Appeal and Error 38 — record on appeal — two conflicting narratives of evidence — dismissal of appeal unnecessary Where the record on appeal contained two conflicting narratives of the evidence, it was not necessary to dismiss the appeal for failure to bring forward a "settled" record as required under Appellate Rules 98 and 11, since defendant did not assert that the trial court's findings were not supported by sufficient evidence at a custody hearing, but instead asserted that the trial court's conclusions were erroneous or were not supported by the findings actually made, and under these circumstances a narrative of evidence or a verbatim transcript was not necessary to understand defendant's assignments of error. 2. Parent and Child 7 — responsibility for child support — date paternity established immaterial — responsibility for expenditures for three years prior to filing of action There was no merit to defendant's contention that he could not be liable for any child support expenses incurred by the mother before the date his paternity was established, since the establishment of the father's paternity is only a "procedural prerequisite" to his liability for child support; therefore, assuming adequate proof of the expenditures under N.C.G.S. <cross_reference>50-13.4</cross_reference> (c), plaintiff mother could recover reimbursement for her past support expenditures to the extent she paid the father's share of such expenditures and to the extent the expenditures occurred three years or less before the date she filed her claim for child support. 3. Parent and Child 7; Equity 2 — action for retroactive child support — doctrine of laches inapplicable The doctrine of laches is not applicable to an action for retroactive child support since the public policy concerns about stale claims are already adequately served by the three-year statute of limitations set forth in N.C.G.S. <cross_reference>1-52</cross_reference> (2).<page_number>Page 15</page_number> 4. Parent and Child 7 — failure to make appropriate findings — award of retroactive child support vacated The trial court's award of retroactive child support must be vacated since the court made no findings whatsoever with respect to the parties' estates, earnings, conditions, and accustomed standard of living for one of the years for which plaintiff sought child support. 5. Attorneys at Law 7; Parent and Child 7 — retroactive child support — award of attorney's fees proper N.C.G.S. <cross_reference>50-13.6</cross_reference> permits the trial court the discretion to award attorney's fees for retroactive child support just as the trial court has the discretion to award attorney's fees for future support actions, and dicta to the contrary in Tidwell v. Booker, <cross_reference>290 N.C. 98</cross_reference>, is no longer applicable, since it was based in part on the mother's "secondary" liability for child support. N.C.G.S. <cross_reference>49-15</cross_reference>. 6. Attorneys at Law 7 — award of attorney's fees — insufficient findings — award improper The trial court erred in awarding plaintiff attorney's fees in her action for retroactive child support where the court made no findings on all the factors required under N.C.G.S. <cross_reference>50-13.6</cross_reference>, and plaintiff's expense affidavits included some legal expenses attributable to the conduct of her paternity claim rather than her child support claim.

1. Narcotics 4.4 — possession with intent to sell or deliver cocaine — constructive possession — insufficiency of evidence The trial court erred in failing to dismiss charges against one defendant of possession with intent to sell or deliver cocaine and manufacturing cocaine where the State relied on the theory of constructive possession of cocaine seized from a "drink house" and pool hall, but there was no evidence that the building was under the control of defendant and no evidence that he owned or leased the building; and there was some evidence that defendant knew that there was cocaine in the building and that he had come to receive some drugs, but this was not substantial evidence that defendant had the capability to maintain control and dominion over one gram or more of cocaine.<page_number>Page 73</page_number> 2. Narcotics 4.3 — constructive possession of cocaine — sufficiency of evidence Evidence was sufficient to allow the jury to find that one defendant had constructive possession of cocaine found in a "drink house" and pool hall where it tended to show that, prior to officers' entry to execute a search warrant, defendant answered a knock at the door and informed the person outside that they were closed and were not selling beer; defendant was arrested in the same room where police found cocaine in plain view; defendant had arrived at the building with cocaine in his possession, used cocaine while on the premises, and "dumped" his cocaine in the building when police arrived; and police found a set of scales on defendant's person when he was searched. 3. Narcotics 3.1 — possession with intent to sell and deliver cocaine — prior sales of alcohol at scene of arrest — evidence improperly admitted — defendant not prejudiced In a prosecution for possession with intent to sell and deliver cocaine and manufacturing cocaine, the trial court erred in admitting evidence concerning prior sales of alcohol at the building where defendant was arrested and searched, but defendant failed to show that there was a reasonable possibility that he was prejudiced as a result of the admission of this testimony. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 401. 4. Narcotics 3.1 — scales found on defendant — characterization as common drug paraphernalia — defendant not prejudiced Defendant was not prejudiced by testimony of a police officer that scales found on defendant's person were used "to weigh very light objects" and were "common drug paraphernalia." N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 701. 5. Narcotics 3.1 — cocaine seized outside building where defendant arrested — limiting instruction proper — cocaine found inside building properly admitted The trial court properly instructed the jury not to consider as evidence cocaine seized from a car parked outside the building where defendant was arrested, and any possible prejudice to defendant by admission of the evidence was cured by the court's instructions; furthermore, evidence was sufficient to infer defendant's constructive possession of other<page_number>Page 74</page_number> cocaine found in the building where he was arrested, and cocaine seized from the building was therefore properly admitted.

Taxation 31.1 — discount for prompt payment of bill — "cash discount" — sales tax levied on discount The conclusion of the Department of Revenue that the discount offered by the taxpayer for prompt payment constituted a "cash discount" within the meaning of N.C.G.S. <cross_reference>105-164.3</cross_reference> (6) was supported by substantial evidence in light of the whole record, and the Department could therefore properly make an assessment based on the discounts.

Corporations 6 — loan made by corporation — plaintiff not holder of beneficial interest — no standing of plaintiff to challenge Plaintiff did not have standing to challenge a loan made by the corporate defendant to the individual defendant when plaintiff's beneficial interest, if any, in defendant corporation consisted of a pledge of stock which secured a debt which was paid by another pledgee of the stock before plaintiff filed suit. N.C.G.S. 55-55 (a).

1. Automobiles and Other Vehicles 126.3 — driving while impaired — taking of blood sample — nurse present in emergency room — willful refusal to be tested — no question as to presence of qualified person to draw blood The trial court erred in concluding that respondent failed to show that a physician, registered nurse, or other qualified person was present to withdraw petitioner's blood at the time the sample was requested and that petitioner therefore did not willfully refuse to be tested, since petitioner must state with a reasonable degree of specificity the basis upon which the contention rests that a refusal to be tested was not willful because the means of chemical analysis were invalid; there was no record in the trial below of proper allegations by petitioner; two officers in this case testified that a nurse was present in a hospital emergency room to withdraw petitioner's blood; and there was no evidence to support the trial court's finding to the contrary.<page_number>Page 197</page_number> 2. Automobiles and Other Vehicles 125 — driving while impaired — reasonable grounds for arrest An officer had reasonable grounds to arrest petitioner for impaired driving, and his driver's license was properly revoked for refusal to submit to a chemical analysis of his blood, where petitioner had been involved in a one vehicle accident in which his car went off the road into a ditch at a time when driving conditions were excellent; petitioner told the officer that he had fallen asleep at the wheel; and the officer detected the strong odor of alcohol about petitioner.

1. Master and Servant 10.2 — retaliatory discharge — OSHANC complaint — summary judgment for defendant Defendant was entitled to summary judgment as a matter of law in an action in which the Commissioner of Labor alleged that defendant discharged an employee, Nettles, in retaliation for filing a complaint about an unsafe working condition with the Occupational Health and Safety Division of the N.C. Department of Labor. The undisputed facts would permit the court to conclude as a matter of law that Nettles would have been discharged notwithstanding the OSHANC complaint. N.C.G.S. <cross_reference>95-130</cross_reference> (8), N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 56 (c). 2. Master and Servant 10.2 — retaliatory discharge — acceptance of multiplant grievance committee decision — bar to action An action by the Commissioner of Labor alleging retaliatory discharge for reporting an unsafe working condition to the occupational safety and health division was not barred pursuant to N.C.G.S. <cross_reference>95-36.8</cross_reference> by the employee's acceptance of a multiplant grievance committee determination because the multiplant grievance procedure was not arbitration as contemplated by the statute. However, the limited scope of the benefits sought (back pay for the period of the employee's suspension) makes this an action for private rather than public benefits and the Commissioner's action is therefore barred; the purpose of the antiretaliation statute is to avoid the chilling effect on employees' willingness to file complaints when those who do are disciplined or discharged under pretext, and that chilling effect can be neutralized effectively by a collective bargaining agreement grievance procedure. Summary judgment for defendant on that ground was therefore proper. 3. Judgments 37; Master and Servant 10.2 — action for retaliatory discharge — ESC determination of dismissal for misconduct — no collateral estoppel Summary judgment on the basis of collateral estoppel was not proper where the Commissioner of Labor brought<page_number>Page 227</page_number> an action for the retaliatory discharge of an employee for filing a complaint with the occupational safety and health division of the North Carolina Department of Labor; the employee had filed a claim for unemployment compensation which had been rejected based on a determination of misconduct in failing to follow posted safety procedures; and the record shows that no evidence was presented on the issue of discriminatory treatment, that neither the ESC nor the superior court determined whether defendant had discriminated against the employee, and there was no indication that the appeals referee had even considered the question of retaliatory discharge.

1. Taxation 25.11 — county's appeal from County Board of Equalization and Review improper — county's appeal from Property Tax Commission proper Even though respondent county could not appeal from the County Board of Equalization and Review to the North Carolina Property Tax Commission, respondent county's appeal from the decision of the Property Tax Commission to the Court of Appeals was authorized by N.C.G.S. <cross_reference>105-345</cross_reference> (b). Former N.C.G.S. <cross_reference>105-324</cross_reference> (b). 2. Constitutional law 4.1 — constitutionality of tax statute — standing of county to raise Respondent county did not have standing to raise the constitutionality of N.C.G.S. <cross_reference>105-275</cross_reference> (32), since it was not a member of the class subject to the alleged discrimination of the statute and the county was not the only party in a position to raise the constitutional question. 3. Taxation 25 — home for elderly — exclusion from ad valorem taxation The Property Tax Commission properly ruled that petitioner's property on which it operated a home for the elderly<page_number>Page 325</page_number> should be excluded from ad valorem taxation, and sufficient evidence was presented to establish the statutorily required "active program to generate funds . . . to assist the home in serving persons who might not be able to reside at the home without financial assistance or subsidy" where there was testimony that petitioner had established an endowment fund to assist the indigent, actively solicited contributions to the fund, and designated Mother's Day as a day for each reporting church to seek contributions specifically for the endowment fund. N.C.G.S. <cross_reference>105-275</cross_reference> (32)(vi).

1. Automobiles and Other Vehicles 2.4 — breathalyzer test — additional request for sequential sample not required An officer's original request that petitioner submit to a chemical breath analysis was sufficient to comply with the provisions of N.C.G.S. <cross_reference>20-16.2</cross_reference> (c) without an additional request before a second breath sample was taken. The statutes require the officer to request a chemical analysis based on<page_number>Page 381</page_number> sequential breath samples and do not require a sequence of requests for separate chemical analyses. N.C.G.S. <cross_reference>20-139.1</cross_reference> (b3). 2. Automobiles and Other Vehicles 2.4 — refusal to remove portion of dollar bill from mouth — willful refusal to take breathalyzer Petitioner willfully refused to take a breathalyzer test when he refused the breathalyzer operator's request that he remove the corner of a dollar bill from his mouth, since administrative regulations require the breathalyzer operator to determine that the person to be tested has not eaten in the fifteen minutes prior to the tests, and a reasonable method for determining that the person has not eaten is to prohibit him from placing foreign objects in his mouth. 3. Automobiles and Other Vehicles 2.4 — refusal of breathalyzer test — findings sufficient to support license revocation The trial court's finding that petitioner willfully refused "without justification or excuse" to submit to a chemical analysis upon the request of the charging officer was a finding on the ultimate facts which supported the court's revocation of petitioner's driver's license.

Landlord and Tenant 13.3 — renewal of lease — written notice — not sent by registered mail — sufficient A lease renewal sent by regular rather than registered mail was sufficient where the original lease was for ten years with two five-year renewal options; a different section of the lease, entitled miscellaneous provisions, required that all notices under the lease be in writing and sent by registered or certified mail; plaintiff presented evidence that it did not receive any notice of defendant's intention to renew more than ninety days prior to the expiration of the original term of the lease; defendant presented evidence that on 29 April 1987, she wrote the check for the May rental, wrote a letter advising plaintiff of defendant's intention to renew the lease for another five years, placed the letter along with the check in an envelope addressed to plaintiff and stamped the envelope, which was<page_number>Page 403</page_number> mailed the same day; and the undisputed evidence was that the check was negotiated on 5 May 1987. On the record before the court, plaintiff had timely notice of defendant's intention to exercise its renewal option under the lease. The "problem of proof of notice" would not have been eliminated by defendant's use of registered mail because a registered mail receipt would only have shown that the envelope was sent and received; plaintiff could have admitted receipt of the check but denied receipt of the notice. Moreover, it would seem unduly harsh to penalize the tenant who followed all requirements in a section entitled "Option to Renew" in a twenty-one page lease but failed to also note a miscellaneous provision, and the record does not show that plaintiff was prejudiced in any way by defendant's failure to use registered mail.

1. Divorce and Alimony 18.10 — alimony pendente lite and counsel fees — retroactive award improper The findings of fact in this action did not support an award of alimony pendente lite and counsel fees retroactively from the approximate date the parties separated until the date of the entry of the order over three years later, where<page_number>Page 427</page_number> there had been no proper order entered with respect to alimony, since the element of urgency, emergency, and immediacy present in alimony pendente lite proceedings was totally lacking in this case; defendant's failure to pursue an alimony pendente lite action demonstrated a total lack of need for an order of temporary alimony and counsel fees; and defendant was able to support herself and employ counsel to protect her interests. N.C.G.S. <cross_reference>50-16.3</cross_reference>. 2. Divorce and Alimony 30 — equitable distribution — consideration of fatally defective temporary alimony order improper The trial court's equitable distribution order clearly took into consideration a fatally defective order for temporary alimony, and the equitable distribution order must therefore be remanded for new findings, conclusions, and the entry of a new order.

Corporations 12 — corporate deed to officer and director — presumption of invalidity The trial court should have entered a directed verdict for plaintiffs invalidating a deed from a corporation to an<page_number>Page 450</page_number> officer and director of the corporation where defendant failed to offer evidence rebutting the presumption against the validity of such a deed.

1. Wills 41 — rule against perpetuities — trust provisions — no violation The rule against perpetuities was not violated by provisions of a trust which set out the res, appointed a trustee,<page_number>Page 533</page_number> created a present income interest in the testator's wife, set forth the powers and obligations of the trustee in regard to distributing the principal of the trust, and set forth the factors to be considered by the trustee in making a discretionary distribution of the trust income and principal. 2. Wills 41 — rule against perpetuities — construction of descendants — no violation A trust provision in which the testator's desire was not clear was construed so that the trust would terminate as to Richard or Susan, the testator's children, if either was alive at his spouse Betty's death if he predeceased her or at his death if she predeceased him; if only one of testator's two children was alive at his wife's death, the trust would divide into two equal shares and terminate as to the living child. The share of the deceased child would remain in trust and be distributed to the "descendants then living of the deceased child," with "descendants" construed to mean "children," so that the great-grandchildren are not reached and the rule against perpetuities is avoided. 3. Wills 41 — rule against perpetuities — descendants of child deceased — limited to grandchildren A provision in a will setting forth the procedure for "descendants of a child deceased" to receive their shares of a trust was construed to refer to the testator's children's children, and not to the testator's great-grandchildren. Although the children will not receive gifts until age twenty-five, there is no rule against perpetuities problem because the gift is vested with only the time of enjoyment postponed. 4. Wills 41 — rule against perpetuities — descendants of a child deceased — grandchildren There was no rule against perpetuities problem in a will provision which enabled a trustee in his discretion to distribute trust principal to "descendants of a child deceased" in order to provide for support and aid "such child" in specific endeavors where the references to the "descendants of a child deceased" and "such child" were construed from the context to mean grandchildren.<page_number>Page 534</page_number> 5. Wills 41 — rule against perpetuities — gift to great-grandchildren — measuring lives — rule violated A trust provision in a will which provided for the great-grandchildren of the testator in case one of the grandchildren died before reaching age twenty-five, the age at which benefits would be received, violated the rule against perpetuities where the record indicated that the testator's children were alive at the testator's death but did not reveal whether there were any grandchildren alive at testator's death. The children were therefore the measuring lives for gifts to the grandchildren and the great-grandchildren. 6. Wills 41 — rule against perpetuities — residuary clause — no violation A provision in a will providing for the residue of a trust to be distributed by intestate succession if circumstances prevented distribution in accordance with the other provisions of the trust did not violate the rule against perpetuities. 7. Wills 41 — rule against perpetuities — one trust provision void — remainder valid A provision in a will providing for distribution of a trust to the testator's great-grandchildren in certain circumstances was void because it violated the rule against perpetuities; the other provisions of the trust created valid interests and the trustee should give effect to those provisions.

1. Rules of Civil Procedure 12, 55 — time to answer complaint — when time begins to run — motions for entry of default and default judgment timely The thirty days defendant has under N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 12 to answer the complaint begin running when defendant<page_number>Page 602</page_number> is served with the summons and complaint, not when plaintiff mails it, and there is thus no need to apply Rule 6 (e) to extend the time to answer by three days; therefore, plaintiffs' motions for entry of default and default judgment filed thirty-one days after service of the summons and complaint on defendant were made after defendant's time to answer had expired, as required by Rule 55. 2. Rules of Civil Procedure 55 — claim not for sum certain — entry of default judgment by clerk improper Plaintiffs' claim was not for a sum certain or a sum which could by computation be made certain and entry of default judgment by the clerk was therefore improper where plaintiffs' claimed damages were mitigated by a sum dependent on plaintiffs' estimate of the "fair rental value" of some unspecified amount of land, and plaintiffs alleged that they were entitled to $19,762.50 for expenses incurred during each of two years for land clearing, but there was no clear showing as to how plaintiffs arrived at this figure. N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 55 (b)(1).

Injunctions 13.2 — zoning violation — preliminary injunction — allegation of irreparable harm — insufficient A preliminary injunction enjoining defendant from operating a used car lot in violation of plaintiff's zoning ordinance<page_number>Page 650</page_number> was vacated because plaintiff's conclusory affidavit of irreparable harm was insufficient to allow the trial court to weigh the equities and thereby determine in its sound discretion whether an interlocutory injunction should be issued or denied. N.C.G.S. <cross_reference>160A-175</cross_reference> (e). N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 65.