Volume 97 — North Carolina Court of Appeals Reports

1. Appeal and Error 6.2 (NCI3d) — partial summary judgment — substantial right affected — appealable Entry of summary judgment on all but three of plaintiff's claims in an action arising from the termination of his employment and his involuntary commitment affected a substantial right and the orders were therefore appealable prior to the final adjudication of the remaining claims. Am Jur 2d, Appeal and Error 104. 2. Appeal and Error 6.2 (NCI3d) — discovery orders — interlocutory Orders regarding discovery were interlocutory, plaintiff conceded that appropriate notice had not been given and that the issues were not ripe for appeal, and their merits were not discussed by the Court of Appeals. Am Jur 2d, Appeal and Error 79, 80.<page_number>Page 2</page_number> 3. Contracts 27.2 (NCI3d) — termination of employment — breach of contract — summary judgment for defendant proper Summary judgment was properly granted in favor of defendant Duke University on plaintiff's breach of contract claim arising from the denial of his access to laboratory space in a specific building where laboratory space in a specific area was not a term of plaintiff's contract. Am Jur 2d, Master and Servant 27, 43, 49. 4. Contracts 34 (NCI3d) — termination of employment — malicious interference with contract — summary judgment for defendant proper Summary judgment was properly granted in favor of defendant Roe on a claim for malicious interference with contract arising from the termination of plaintiff's employment where plaintiff was an assistant professor of pediatrics in the Pediatric Metabolism Laboratory at Duke University; defendant Roe, as director of the Pediatric Metabolism Laboratory, recommended that plaintiff be terminated; and, although the record is replete with allegations of defendant Roe's motives, there is no evidence that defendant's actions were outside the scope of his authority as Director of the Pediatric Metabolism Laboratory and therefore were not legally malicious. Am Jur 2d, Master and Servant 27, 43, 49. 5. Libel and Slander 16 (NCI3d) — termination of employment — allegations of moral turpitude — summary judgment for defendants Summary judgment was properly granted for defendants in a slander action arising from the termination of plaintiff's employment and from his involuntary commitment where the record showed that the statements made by defendants were true. Am Jur 2d, Libel and Slander 201, 266, 279, 322, 323, 398. 6. Libel and Slander 16 (NCI3d) — employment termination letter — libel — qualified privilege — good faith Summary judgment should not have been granted for defendant Roe on a claim for libel per se arising from the termination of plaintiff's employment where plaintiff raised genuine issues of fact regarding the defense of qualified privilege and<page_number>Page 3</page_number> defendant's good faith. A statement libelous per se raises the presumption of malice, which may be rebutted by qualified privilege; plaintiff must then prove actual malice, which may be proven by evidence of ill-will or personal hostility, or by showing that declarant published the defamatory statement with knowledge that it was false, with reckless disregard for the truth or with a high degree of awareness of its probable falsity. The evidence here was sufficient to raise a genuine issue of material fact as to whether defendant Roe's statements were made without good faith or probable cause and therefore constituted actual malice. Am Jur 2d, Libel and Slander 201, 266, 279, 322, 323, 398. 7. Libel and Slander 16 (NCI3d) — employment termination letter — liability of university under respondeat superior — summary judgment for defendant — improper Summary judgment should not have been granted for defendant Duke University in a libel action arising from an employment termination letter where plaintiff alleged that Duke University was responsible under the theory of respondeat superior. There was an issue of fact as to whether the author of the letter, defendant Roe, was acting in furtherance of Duke University and for purposes of accomplishing the duties of his employment when he wrote the termination letter. Am Jur 2d, Libel and Slander 201, 266, 279, 322, 323, 398. 8. Rules of Civil Procedure 15 (NCI3d) — medical malpractice against hospital — amendment of complaint — relation back The trial court erred by granting summary judgment in favor of defendant Duke University on the ground of the statute of limitations on a claim for medical malpractice arising from plaintiff's involuntary commitment where plaintiff had filed an amended complaint, there were no contradictory allegations in the amended complaint, and the allegations in the amended complaint were based on the same transaction or occurrence (defendant's involuntary commitment of plaintiff) as the original complaint. N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 15 (c). <block_quote> Am Jur 2d, Hospitals and Asylums 38; Pleadings 320, 337.</block_quote><page_number>Page 4</page_number> 9. False Imprisonment 2.1 (NCI3d) — involuntary commitment — false imprisonment — summary judgment for Duke University improper The trial court erred by granting summary judgment in favor of Duke University on the issue of false imprisonment arising from plaintiff's involuntary commitment where Duke University admitted that its security officers, acting in the course and scope of their employment, escorted plaintiff to Meyer Ward, the psychiatric wing of Duke University Hospital, plaintiff asserted that he went against his will, and there was evidence that no magistrate had signed a commitment order. There was a genuine issue of material fact as to whether plaintiff was falsely imprisoned by the acts of the officers. Am Jur 2d, False Imprisonment 10, 51, 56, 130. 10. Malicious Prosecution 13.2 (NCI3d) — involuntary commitment — probable cause — summary judgment for defendant proper Summary judgment was properly granted for defendant Stoudemire on a malicious prosecution claim arising from plaintiff's involuntary commitment where defendant Stoudemire exercised his professional judgment in executing the petition for commitment based on the information brought to his attention by other defendants in this case and his perceptions of plaintiff after two interviews. There were no facts to support plaintiff's claim that Dr. Stoudemire acted without probable cause. Am Jur 2d, Malicious Prosecution 71, 72. 11. Process 19 (NCI3d) — abuse of process — involuntary commitment — summary judgment for defendant proper The trial court properly granted summary judgment for defendant Dr. Stoudemire in a claim for abuse of process arising from plaintiff's involuntary commitment where plaintiff failed to raise an issue of fact regarding ulterior motive or an act in the use of process that would be the basis of a claim. Am Jur 2d, Abuse of Process 4, 12, 22.

1. Negligence 52.1 (NCI3d) — airport accident — owner of leased aircraft — invitee In a negligence action arising from an airplane crash after the airplane struck a dog during takeoff, the trial court did not err by holding that plaintiff was an invitee even though plaintiff did not pay a fee directly to the airport. Plaintiff leased its airplane to Piedmont Aviation, which paid rent to defendant airport commission to operate its business on the airport property. This arrangement was to the benefit of both plaintiff and defendant, even though payment by plaintiff went through a middleman. Am Jur 2d, Aviation 87, 102. 2. Negligence 53.1 (NCI3d) — airport accident — dog on runway — degree of care owed invitee The trial court correctly denied defendant's motion for a directed verdict in an action arising from an airplane crash caused by a dog on the runway. Although defendant contended that plaintiff failed to prove how this specific dog got on the runway on the night in question, the evidence was sufficient for the jury to find that defendant's failure to maintain an adequate fence around the property was a lack of reasonable care in keeping the premises in a reasonably safe condition. Furthermore, the evidence was sufficient for the jury to conclude<page_number>Page 31</page_number> that defendant's lack of prudent conduct resulted in dogs getting on the property and that one of those dogs being on the runway at the time the aircraft was taking off was the proximate cause of the damages to plaintiff's aircraft. Am Jur 2d, Aviation 87, 102. 3. Negligence 13 (NCI3d) — airport accident — dog on runway — contributory negligence The trial court properly denied defendant's motion for a directed verdict based on contributory negligence in an action arising from an airplane crash caused by a dog on a runway where the evidence of defendant's knowledge of the problems the dogs presented at the airport was overwhelming and evidence of knowledge attributable to plaintiff was insufficient to show that plaintiff's president or employees were on notice of the danger. Am Jur 2d, Aviation 105. 4. Evidence 28 (NCI3d) — airport accident — dogs on runway — FAA daily logs The trial court did not err in a negligence action arising from an airplane crash caused by dogs on a runway by admitting daily logs maintained by air traffic controllers at the airport. The evidence was relevant in that the number of dogs or other animals seen on or near the runway in the year preceding the incident in question would have a tendency to prove a dangerous situation existed, and there was nothing unfair about the admission of the logs because there was nothing which would confuse or mislead the jury or tend to suggest a decision on an emotional or other improper basis. Am Jur 2d, Aviation 144, 145. 5. Evidence 19.1 (NCI3d) — airport accident — dogs on runway — number of animal sightings in prior years The trial court did not err in a negligence action arising from an airplane crash caused by a dog on a runway in 1985 by admitting evidence which showed the number of animal sightings made by airport personnel during the period from 1978 through 1983. Remoteness in time generally goes to the<page_number>Page 32</page_number> weight of the evidence and not to its admissibility and this evidence was clearly relevant to the foreseeability issue. Am Jur 2d, Aviation 144, 145.

Landlord and Tenant 19 (NCI3d) — recomputation of rent — provisions ambiguous — no knowledge by lessee of lessor's intent In an action to enforce a recomputation in rental payment amounts for defendant's alleged failure to comply with the lease requirements, the trial court properly granted summary judgment for defendant where the recomputation language was ambiguous; plaintiff contended that defendant must have all buildings completed on her land in order to avoid a retroactive recomputation of rent; but the evidence supported the trial court's determination that defendant did not know or have reason to know plaintiff's "completed building" meaning. Am Jur 2d, Landlord and Tenant 143.

1. Unfair Competition 1 (NCI3d) — delivery of building materials to third person — commerce affected — unfair trade practices claim appropriate In determining whether an unfair trade practices claim exists the proper inquiry is not whether a contractual relationship existed between the parties, but rather whether the defendants' allegedly deceptive acts affected commerce. In this case defendants' alleged misrepresentations to plaintiff related to the delivery of building materials to a third party contractor, and as such the misrepresentations affected commerce; therefore, summary judgment for defendants was inappropriate, and the unfair trade practices claim must be remanded for a factual determination of whether the misrepresentations were in fact made and, if made, whether they caused plaintiff to continue to supply building materials to the contractor. N.C.G.S. <cross_reference>75-1.1</cross_reference> (a). <block_quote> Am Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices 696.</block_quote><page_number>Page 72</page_number> 2. Fraud 9 (NCI3d) — negligent misrepresentation — failure to plead or offer evidence The trial court properly refused to instruct the jury on a negligent misrepresentation issue where the complaint contained no allegation of negligent misrepresentation, express or implied, and the parties did not litigate a negligent misrepresentation issue by consent based on the evidence admitted to prove fraudulent misrepresentation which could also tend to prove some elements of negligent misrepresentation. Am Jur 2d, Fraud and Deceit 434, 475.

Easements 6.1 (NCI3d) — prescriptive easements — sufficiency of evidence Plaintiff established a prescriptive easement in a street crossing defendants' property where plaintiff alleged that the street was graveled and opened in the summer of 1956, maintained by plaintiff, and used by the public and as a mail and school bus route until the fall of 1985; defendants contended that there was no road in existence until 1962, but that still amounted to 23 years' use, enough to satisfy the time requirement for an easement by prescription; plaintiff maintained, however poorly, and the public used the road and so gave notice to defendants that there was a "claim of right" to the street; and defendants' appearance at a Town Council meeting to request help in paving the street gave rise to a strong inference that defendants thought the street was a public way, as the town could not pave a private driveway. Am Jur 2d, Easements and Licenses 118, 119.

1. Negligence 57.4 (NCI3d) — step at firehouse exit — violation of building code — negligence per se — negligence in construction as cause of fall — sufficiency of evidence In an action to recover for injuries sustained in a fall at defendant's firehouse the trial court erred in entering judgment n.o.v. for defendant where a licensed engineer and architect testified that in his opinion the construction of the firehouse door violated the N.C. Building Code which prohibits a riser, the vertical portion of a stair step, at exit doors; a violation of the N.C. Building Code is negligence per se; evidence permitted the finding that the negligent construction of the firehouse door proximately caused plaintiff's fall and resulting injuries in that plaintiff lost his balance because of the difference in elevation between the top of the threshold and the firehouse floor; plaintiff tore cartilage in his knee as a result of his fall; and the evidence did not show that plaintiff was contributorily negligent as a matter of law in failing to notice the difference in elevation between the threshold and the firehouse floor. Am Jur 2d, Premises Liability 32, 257. 2. Rules of Civil Procedure 59 (NCI3d) — new trial on issue of damages — denial proper The trial court did not err in denying plaintiff's motion for a new trial on the issue of damages where plaintiff contended that the jury award of $2,500 was less than his medical expenses which the evidence showed to be $4,900, but the evidence in fact showed that some of plaintiff's surgery was to relieve arthritic symptoms unrelated to the fall in defendant's firehouse, and the arthritis related surgery, not the surgery to remove cartilage torn in plaintiff's fall, caused plaintiff's post-surgery complications. Am Jur 2d, Damages 208, 933.<page_number>Page 111</page_number>

Injunctions 6 (NCI3d) — breach of lease requiring store to stay open — injunction inappropriate The trial court properly granted defendant's motion for summary judgment in plaintiff's action for an injunction restraining defendant from further violation of the terms of a lease where defendant had breached the lease by keeping its store closed during hours which it was required to be open, but there was no evidence that defendant had on any other occasions in the past closed its store or had otherwise displayed any intention to do so in the future in violation of the lease. <block_quote> Am Jur 2d, Injunctions 50, 51, 87, 92; Landlord and Tenant 177.</block_quote>

1. Physicians, Surgeons, and Allied Professions 6 (NCI3d) — psychologist's code of ethics — test for constitutionality The test for determining the constitutionality of a professional code of ethics, such as the Ethical Principles of Psychologists, is whether a reasonably intelligent member of the profession would understand that the conduct in question is forbidden; the facts of the case at hand determine the decision of the courts as to vagueness and overbreadth. N.C.G.S. <cross_reference>90-270.15</cross_reference>. <block_quote> Am Jur 2d, Physicians, Surgeons, and Other Healers 28-30, 132.</block_quote> 2. Physicians, Surgeons, and Allied Professions 6 (NCI3d) — psychologists — Preambles to Ethical Principles — unconstitutionally vague The Preambles to the Ethical Principles of Psychologists are unconstitutionally vague under the North Carolina and the United States Constitutions and a psychologist should not have been sanctioned for violation of the preambles. U.S. Constitution Amendments V and XIV; North Carolina Constitution Art. I, 19. <block_quote> Am Jur 2d, Physicians, Surgeons, and Other Healers 28-30, 132.</block_quote> 3. Physicians, Surgeons, and Allied Professions 6 (NCI3d) — psychologists — Ethical Principles of Psychologists — not unconstitutionally vague The Ethical Principles of Psychologists are not unconstitutionally vague, a reasonably intelligent psychologist would understand that the conduct in question is forbidden, and a psychologist may be sanctioned for violations of those principles. <block_quote> Am Jur 2d, Physicians, Surgeons, and Other Healers 28-30, 132.</block_quote><page_number>Page 145</page_number> 4. Physicians, Surgeons, and Allied Professions 6.2 (NCI3d) — psychologist — violations of ethical principles — revocation of license The Board did not have sufficient evidence under the whole record test to find and conclude that a psychologist had violated Ethical Principle 5c, dealing with confidentiality, in that the psychologist had lost diagnostic testing materials and results. While the psychologist's behavior might evidence certain professional failures, there was no showing that the psychologist's filing system violated a client's right to confidentiality under Principle 5c. It was uncontested that the file was lost, but there was no evidence that anyone had access to the information. <block_quote> Am Jur 2d, Divorce and Separation 984, 985; Physicians, Surgeons, and Other Healers 82, 92, 99.</block_quote> 5. Physicians, Surgeons, and Allied Professions 6.2 (NCI3d) — psychologist — violation of ethical principles — misuse of influence — violating or diminishing legal and civil rights of others — no violation There was sufficient evidence to support the finding of the Board that petitioner psychologist violated Ethical Principle 3c, which requires that psychologists avoid any action that will violate or diminish legal and civil rights of clients and others, where petitioner violated a custodial mother's civil rights by examining her child without the mother's consent. Principle 3c does not intend nor state that a psychologist cannot testify in a custody dispute, but petitioner should have notified the custodial parent that he was providing treatment. There was insufficient evidence of a violation of Principle 1f, which requires psychologists to be alert to situations and pressures which might lead to misuse of their influence, where the Board's finding of fact stated that petitioner's testimony about which parent had custody was not credible. <block_quote> Am Jur 2d, Divorce and Separation 984, 985; Physicians, Surgeons, and Other Healers 82, 92, 99.</block_quote> 6. Physicians, Surgeons, and Allied Professions 6.2 (NCI3d) — psychologist — violations of ethical principles — actions affecting civil or legal rights — misuse of influence Although there was sufficient evidence to support the Board's findings of fact, the findings did not support the Board's<page_number>Page 146</page_number> conclusion that petitioner psychologist had violated Ethical Principle 3c, which requires psychologists to avoid any action that would violate or diminish legal or civil rights of others, where the court concluded that petitioner's opinion in a case summary was not supported by evidence in the record. The Board also improperly concluded that petitioner violated Principle 1f, which reminds psychologists not to submit to pressures which might lead to misuse of their influence, where the Board presented no evidence that petitioner in fact misused his influence by giving his professional opinion. <block_quote> Am Jur 2d, Divorce and Separation 984, 985; Physicians, Surgeons, and Other Healers 82, 92, 99.</block_quote> 7. Physicians, Surgeons, and Allied Professions 6.2 (NCI3d) — psychologist — violation of ethical principles — maintaining adequate records — understanding of testing and test results The Board improperly concluded that petitioner psychologist violated Ethical Principle 3c by failing to maintain adequate and consistent records where a noncustodial father paid more than he owed because of an incorrect statement from petitioner. Although petitioner's billing records are incomplete and somewhat haphazard, the error in billing which totaled $80.00 does not constitute a violation of the father's legal and civil rights, particularly since a refund was paid. There was sufficient evidence to support the conclusion that petitioner violated Ethical Principle 2e in diagnosing the child with dyslexia where there was unrebutted substantial evidence that the diagnosis could not have been ethically done in a child of that age. <block_quote> Am Jur 2d, Divorce and Separation 984, 985; Physicians, Surgeons, and Other Healers 82, 92, 99.</block_quote> 8. Physicians, Surgeons, and Allied Professions 6.2 (NCI3d) — psychologist — violation of ethical principles — misuse of influence — adherence to laws and regulations — cooperation with other professional groups There was insufficient evidence to support the Board's conclusion that petitioner psychologist violated Ethical Principle 1f, dealing with misuse of influence, in diagnosing sexual abuse in two children and in treating their mother; there was insufficient evidence of a violation of Ethical Principle 3c, which<page_number>Page 147</page_number> requires avoidance of any action which will violate or diminish legal and civil rights of clients, where petitioner's actions may have been inappropriate but did not violate the principle; there was sufficient evidence to support a violation of N.C.G.S. 7A-543 and Ethical Principle 3d by failing to report suspicion of child abuse to the proper governmental agency even though petitioner contended that he thought the matter was already in the judicial system; and there was insufficient evidence of a violation of Ethical Principle 7b, requiring cooperation with other professional groups, where petitioner did not offer his services in substitution of the mother's therapist, but recommended that the patient seek help from another practitioner with a different philosophy. <block_quote> Am Jur 2d, Divorce and Separation 984, 985; Physicians, Surgeons, and Other Healers 82, 92, 99.</block_quote> 9. Physicians, Surgeons, and Allied Professions 6.2 (NCI3d) — psychologist — violation of ethical principles — child custody and visitation dispute There was insufficient evidence for the Board to conclude that petitioner's actions in a child custody and visitation dispute violated Ethical Principles 1f and 3c, where petitioner's testimony indicated that he made conclusions about visitation based solely on the patient's natural mother's statements that the stepmother was unstable. There is nothing in the evidence to indicate that petitioner was under any obligation under the Principles to conduct further investigation before making his recommendations and, although petitioner's recommendation may have had an effect on civil and legal rights, there was no evidence that he was under a professional obligation to collect additional information before he made his recommendations. However, there was substantial evidence in the record to support the findings of a violation of Principle 7b, which requires cooperation with other professional groups, and petitioner did not except to those findings or conclusions in the record on appeal and did not argue this issue in his brief. <block_quote> Am Jur 2d, Divorce and Separation 984, 985; Physicians, Surgeons, and Other Healers 82, 92, 99.</block_quote><page_number>Page 148</page_number> 10. Physicians, Surgeons, and Allied Professions 6.2 (NCI3d) — psychologist — violation of ethical principles — use of inappropriate test There was sufficient evidence to support the Board's conclusions that petitioner violated Ethical Principle 8d in the use of an outdated intelligence test, but insufficient evidence to support a violation of Principle 8c, regarding misuse of tests and interpretations by others, where petitioner contended that he would not release such a report without a cover letter explaining the report. <block_quote> Am Jur 2d, Divorce and Separation 984, 985; Physicians, Surgeons, and Other Healers 82, 92, 99.</block_quote>

1. Administrative Law 5 (NCI3d) — denial of development permit — appeal to superior court — availability of summary judgment The trial court did not err by granting summary judgment for the State where the Coastal Resources Commission denied plaintiff a major development permit to build a 900-foot-long pier in Bogue Sound and plaintiff filed a complaint in superior court alleging an unreasonable exercise of police power and requesting relief under N.C.G.S. <cross_reference>113A-123</cross_reference> (b) rather than appealing the Commission's findings pursuant to N.C.G.S. <cross_reference>113A-123</cross_reference> (a). Although plaintiff contended that the grant of summary judgment rendered the statutory provision for a jury trial meaningless, the device of summary judgment allows the court to pierce the pleadings to discern whether the parties' forecast of evidence reveals that more than questions of law are involved. Plaintiff has the right to use the statutory method for determining whether a taking occurred, and within that method can seek a jury trial on the takings issue if he presents an unresolved issue of fact, but is barred from relitigating the same issues of fact that the Commission resolved after hearing evidence concerning plaintiff's application. Am Jur 2d, Summary Judgment 4. 2. Constitutional Law 23.1 (NCI3d); Waters and Watercourses 6.1 (NCI3d) — pier in Bogue Sound — permit denied — not a taking The trial court did not err by granting summary judgment for the State where plaintiff contended that the Coastal Resources Commission's denial of a major development permit constituted a taking without compensation where the Commission denied the permit; plaintiff filed an action in superior court without appealing the Commission's findings; the State introduced the Commission's findings; plaintiff presented no evidence at the summary judgment hearing to dispute the findings; and the evidence showed that plaintiff was not<page_number>Page 216</page_number> deprived of all practical uses of his property by the denial of his application to build a 900-foot pier into Bogue Sound. Am Jur 2d, Wharves 8, 25.

1. Attorneys at Law 1 (NCI3d); Principal and Agent 5.2 (NCI3d) — attorney's conversion of client's investment funds — liability of professional association — actual authority A law firm was not liable for a former firm member's conversion of funds sent to him by plaintiff for investment on the ground that the former member's dealings with plaintiff were within the scope of authority conferred on him by the firm because plaintiff had given the firm a power of attorney "to deal generally and in all respects, without restriction, in and with any property of any nature whatsoever in which [plaintiff] may have any interest" where the law firm, an accounting firm and a bank were designated jointly as attorneys in fact and none could act without the concurrence of the other two, and where the former firm member did not employ the power of attorney in his dealings with plaintiff, signed promissory notes to plaintiff in his personal capacity, and wrote checks to plaintiff drawn on his personal account. Am Jur 2d, Attorneys at Law 216, 217. 2. Attorneys at Law 1 (NCI3d); Principal and Agent 5.2 (NCI3d) — attorney's conversion of client's investment funds — liability of professional association — apparent authority A law firm was not liable for a former firm member's conversion of funds sent to him by plaintiff for investment on the ground that the former member acted within his apparent authority in soliciting funds from plaintiff where the evidence showed that a letter to plaintiff on firm stationery<page_number>Page 237</page_number> was written entirely in the former member's hand; another letter to plaintiff was written on the former member's personal stationery; plaintiff was never billed by the firm for any aspect of his investments with the former member; neither plaintiff's testimony nor that of the former member's secretary supported plaintiff's claim that the other lawyers at the firm knew or should have known about the former member's solicitation and acceptance of money from plaintiff; the charter of the law firm, a professional association, limited it to rendering legal services; the former member was not the principal stockholder in the professional association and was not principally in charge of its operation; and the former member gave plaintiff no assurances that money invested with him would be handled through the law firm. Am Jur 2d, Attorneys at Law 216, 217. 3. Attorneys at Law 1 (NCI3d) — attorney's conversion of client's investment funds — liability of law firm — negligence and breach of fiduciary duty A law firm was not liable in damages for a former firm member's conversion of investment funds solicited by him from plaintiff on theories of negligence or breach of fiduciary duty since members of the firm had no duty to detect and supervise actions of a firm member which were outside the practice of law, which the member had no authority to take, and of which the other firm members had no reason to know. Am Jur 2d, Attorneys at Law 216, 217. 4. Attorneys at Law 1 (NCI3d); Trover and Conversion 2 (NCI3d) — attorney's conversion of client's investment funds — Securities Act — no liability by professional association Members of a law firm were not liable for a former member's conversion of investment funds sent to him by plaintiff based on a violation of provisions of the N.C. Securities Act relating to civil liability for offering and selling securities by means of false or misleading statements, N.C.G.S. 78-56 [<cross_reference>78A-56</cross_reference>] (a), (c), where plaintiff failed to show that defendants knew or should have known that the former firm member was selling securities while he was a member of the firm, and defendants<page_number>Page 238</page_number> thus did not "directly or indirectly control" the former firm member's actions within the meaning of the statute. Am Jur 2d, Attorneys at Law 216, 217.

1. Municipal Corporations 30.20 (NCI3d) — historic district — amendment of zoning ordinance — statutory procedure not followed The trial court correctly declared invalid an ordinance establishing an historic district where N.C.G.S. <cross_reference>160A-385</cross_reference> requires that an amendment to a zoning regulation shall not become effective except by favorable vote of three-fourths of all members of the City Council when there is a protest signed by owners of twenty percent or more either of the area of the lots included or those immediately adjacent thereto; the area was rezoned an historic district by a four-to-three vote; and the percentage of the rezoned or adjacent area owned by protesting property owners was not addressed in the record. In undertaking to enact an ordinance over the protests of affected property owners, the city had an affirmative duty<page_number>Page 288</page_number> to determine the sufficiency, timeliness, and percentage of the protest and to call for the vote that the law required. Its failure to determine those essential facts rendered the ordinance invalid on its face. Am Jur 2d, Zoning and Planning 40, 57, 58. 2. Municipal Corporations 31 (NCI3d) — historic district — declaratory judgment action to declare ordinance invalid — administrative remedies not exhausted — declaratory judgment action proper Plaintiffs could properly challenge an historic zoning district ordinance by a declaratory judgment action before their administrative remedies were exhausted because they had the necessary personal and legal interest in that they were owners of property in the rezoned area on which the City would not permit them to build. Am Jur 2d, Zoning and Planning 40, 57, 58.

1. Bailment 3 (NCI3d) — consignment sale of automobile — damages to auto — individual liability of bailee The trial court correctly ruled that, by failing to exercise due care in allowing an automobile to be damaged while in his custody, defendant committed a tort for which he can be held individually liable where defendants Hollowell and Jones met with plaintiff to negotiate a consignment agreement for the sale of plaintiff's automobile; a written consignment contract was executed between plaintiff and Hollowell Auto Sales, with defendant Jones signing the contract on behalf of Hollowell Auto Sales; defendants transported the automobile to the Hollowell Auto Sales lot in Morehead City; defendants were unable to sell the car and it was returned to plaintiff; plaintiff then discovered that the automobile had been damaged; and plaintiff, who had been under the impression that Hollowell Auto Sales was a sole proprietorship operated by defendant Hollowell, learned upon suing defendants that Hollowell Auto Sales was a trade name for Solar Center, Inc. Defendant was a bailee of plaintiff's automobile while it was in his custody in Morehead City and a bailee is obligated to exercise due care to protect the subject of the bailment from negligent loss, damage or destruction; while this obligation arises from the relationship created by the contract of bailment, breach of this contractual duty results in a tort and it is well settled that one is personally liable for all torts committed by him, including negligence, notwithstanding that he may have acted as an agent for another or as an officer for a corporation. Am Jur 2d, Bailment 45, 217-219. 2. Principal and Agent 7 (NCI3d) — bailment — use of trade name — disclosure not sufficient Although a bailment case involving an automobile was decided on other grounds, it was noted that the existence<page_number>Page 317</page_number> of means by which the fact of agency might be discovered was insufficient to disclose agency. Am Jur 2d, Agency 325, 327.

Judgments 36 (NCI3d) — defensive pleading of collateral estoppel — mutuality of estoppel not required The trial court in a wrongful death action properly found that the pleading of collateral estoppel in bar of plaintiff's claims was a defensive use, and mutuality of estoppel was therefore not required where defendant was a party in the prior action, but plaintiff took a voluntary dismissal without prejudice as to him; though defendant was technically not a party when the judgment in the first action was rendered, his negligence was a critical issue in that lawsuit; likewise, the issue of plaintiff's intestate's contributory negligence was critical to a determination of the automobile accident's proximate cause; both of those issues were fully litigated; both were decided by a jury; no appeal from the judgment in the first action was perfected, and it constituted a final judgment on the liability of defendant and, derivatively, of his employers;<page_number>Page 451</page_number> and plaintiff attempted to reopen exactly the issues which were closed by the prior action. Am Jur 2d, Judgments 521-523.

Rape and Allied Offenses 6.1 (NCI3d) — first degree sexual offense — submission of lesser offense not required In a prosecution of defendants for first degree sexual offense, the trial court did not err in failing to submit to the jury, as defendants requested, an issue as to the lesser-included offense of second degree sexual offense, since the case was tried on an all or nothing basis; the State's evidence was not in conflict; and defendants presented no evidence as to the crime. Am Jur 2d, Trial 878, 880.

1. Criminal Law 34.8 (NCI3d) — narcotics offense — evidence of drug possession and marijuana use — admissibility to show predisposition to commit offense The trial court did not err in admitting evidence of defendant's drug possession and marijuana use where the State<page_number>Page 590</page_number> introduced the evidence in an attempt to show that defendant had a predisposition to commit the crimes charged and was therefore not entrapped. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404 (b). <block_quote> Am Jur 2d, Criminal Law 205, 206; Drugs, Narcotics, and Poisons 43, 46, 47; Evidence 321.</block_quote> 2. Criminal Law 34.8 (NCI3d) — narcotics offense — cocaine and marijuana possession eight days after crimes charged — admissibility of evidence The trial court did not err in admitting evidence of defendant's cocaine and marijuana possession just eight days after being charged with three drug related offenses, since the evidence was extremely relevant and had probative value which substantially outweighed the danger of unfair prejudice. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 403. <block_quote> Am Jur 2d, Drugs, Narcotics, and Poisons 46, 47; Evidence 321, 329.</block_quote> 3. Criminal Law 34.8 (NCI3d) — narcotics offense — evidence of prior drug use — admissibility to show predisposition to commit crimes In a prosecution of defendant for possession with intent to sell and deliver and sale and delivery of LSD and cocaine, the trial court did not err in admitting evidence of defendant's prior drug use to show his predisposition to commit the crimes charged. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404 (b). <block_quote> Am Jur 2d, Drugs, Narcotics, and Poisons 46, 47; Evidence 321, 329.</block_quote> 4. Criminal Law 73.1 (NCI3d) — hearsay evidence later withdrawn — defendant not prejudiced The trial court did not err by first allowing as corroborating evidence, and then later excluding, hearsay evidence that defendant was a drug dealer, since the court's instruction withdrawing the evidence was appropriate, and there was no indication in the record that the jury disregarded the court's instruction and considered the improper testimony in reaching the verdict. Am Jur 2d, Trial 655, 748, 753, 919.<page_number>Page 591</page_number> 5. Narcotics 4.2 (NCI3d) — possession with intent to sell and deliver cocaine and LSD — entrapment — sufficiency of evidence In a prosecution of defendant for possession with intent to sell and deliver and sale and delivery of LSD and cocaine, the trial court did not err in denying defendant's motion to dismiss since defendant did not prove as a matter of law that he was entrapped. <block_quote> Am Jur 2d, Criminal Law 203; Drugs, Narcotics, and Poisons 43, 47.</block_quote>

1. Libel and Slander 5.2 (NCI3d) — slander by employee's supervisor — employee fired — sufficiency of evidence Evidence in plaintiff's action for slander was sufficient to be submitted to the jury as to the individual defendant who was plaintiff's supervisor where plaintiff alleged that, approximately one week after plaintiff had lodged a complaint about plant safety violations with defendant employer's safety director, the individual defendant reported to other management personnel at the plant that plaintiff had threatened him with physical violence; as a result of this report plaintiff was fired; plaintiff testified that he had never threatened defendant; and if this evidence was believed, it would establish that defendant slandered plaintiff in his trade and means of livelihood and in accusing him on criminal conduct. Am Jur 2d, Libel and Slander 273, 275. 2. Libel and Slander 10.1 (NCI3d) — alleged slander by supervisor — conversations among management personnel — conversation privileged The trial court properly granted directed verdict for defendant employer in plaintiff's action for slander where utterances by defendant's management personnel with regard to a negative report by plaintiff's supervisor were privileged, and there was no evidence from which a jury could reasonably<page_number>Page 649</page_number> infer that defendant acted out of malice or ill will toward plaintiff. Am Jur 2d, Libel and Slander 273, 275.