CONTENTS 7 December 1993 ADMINISTRATIVE LAW AND PROCEDURE 31 (NCI4th). Petitioner's letter requesting that material be expunged from his record at the Board of Medical Examiners and indicating that he would be happy to meet with the Board in an informal conference was sufficient to trigger the contested case provisions of G.S. 150B-38. In re Sullivan, APPEAL AND ERROR 99 (NCI4th). The denial of a motion to amend an answer to add compulsory counterclaims and additional parties was immediately appealable. House Healers, 112 (NCI4th). The denial of a motion to dismiss for lack of subject matter jurisdiction was appealable. North Carolina Railroad Company v. City of Charlotte, 121 (NCI4th). Plaintiff's cross-appeal from a partial summary judgment was interlocutory and not appealable where the judgment was in a multiple claim or multiple party action, was not certified for appeal by the trial court, and was not authorized by some other rule or statute. North Carolina Railroad Company v. City of Charlotte, 147 (NCI4th). A defendant could not assign as error the introduction of DNA evidence in a rape trial where, upon motions by defendant, the court conducted a pretrial hearing at which only an F.B.I. expert testified, defendant did not offer testimony from his experts, and, in arguing the motions, defense counsel advised that he had decided to reserve to the jury the issue of the reliability of the F.B.I. testing. State v. Futrell, 178 (NCI4th). The trial court did not err in a child support case by proceeding to render a judgment on the merits after defendant had appealed from the denial of his motion to dismiss. Wake County ex rel. Horton v. Ryles, ASSIGNMENTS 2 (NCI4th). The assignment of the proceeds in a cause of action for personal injury is invalid, and defendants were not obligated to honor an assignment to plaintiff hospital authority executed by the individual defendant who was treated for his injuries at plaintiff's facility. Charlotte-Mecklenburg Hospital Auth. v. First of Ga. Ins. Co., ATTORNEYS AT LAW 38 (NCI4th). The trial court did not err in denying a motion by defendant's counsel to withdraw from the case because of defendant's lack of assistance. Broome v. Broome, CONSPIRACY 21 (NCI4th). The State's evidence in a prosecution for four counts of conspiring to provide an inmate with controlled substances showed only one ongoing conspiracy to deliver drugs to the women's prison and the court erred in submitting more than one count of conspiracy to the jury. State v. Griffin, CONSTITUTIONAL LAW 301 (NCI4th). Defendant received effective assistance of counsel in a prosecution for embezzlement by a public officer where defense counsel did not present evidence but that decision did not constitute unreasonable professional judgment. State v. Oxendine, 349 (NCI4th). A rape defendant's Sixth Amendment right to confront witnesses was not violated by the admission of DNA test results where the lab technician who actually performed the tests did not testify at trial. State v. Futrell, CORPORATIONS 213 (NCI4th). The trial court did not err in refusing to allow defendant corporation to exercise is mandatory buy-out rights after determining that dissolution would be appropriate. Foster v. Foster, The trial court did not err by not holding a hearing on the valuation of defendant corporation's stock and assets after ordering dissolution of the corporation as allegedly contemplated in a pretrial order where the pretrial order stipulated that the only issue was whether the corporation should be dissolved; specific problems regarding implementation of the order can be brought to the attention of the court by motion as the problems arise. Ibid. 214 (NCI4th). The trial court did not abuse its discretion by finding that the directors of a corporation were deadlocked and that grounds for dissolution of the corporation existed. Foster v. Foster Farms, Inc., The trial court made insufficient findings to support its conclusion that a corporate dissolution was reasonably necessary to protect plaintiff's rights or interests. Ibid. There was sufficient evidence for the trial court to find grounds for dissolving a corporation under G.S. 55-14-30(2)(iii) because the shareholders were deadlocked and failed for two years to elect successor directors; when the only two shareholders of a corporation also comprise its board of directors and the two shareholders/directors hold conflicting philosophies on how to operate and manage the business, there is no need to show that formal board of director meetings were held to attempt to elect new directors. Ibid. COURTS 132 (NCI4th). The trial court did not err by denying Norfolk Southern's motion to dismiss an action arising from a lease with the North Carolina Railroad Company where Norfolk Southern contended that its duty to provide interstate rail service was subject to the exclusive jurisdiction of the ICC, but this action turns on state law construction of a lease, a deed, and a contract. North Carolina Railroad Company v. City of Charlotte, CRIMINAL LAW 1158 (NCI4th). The trial court erred when sentencing defendant for second-degree rape by finding in aggravation that defendant was armed with a deadly weapon at the time of the crime and that defendant used a deadly weapon where both findings were supported by evidence that defendant possessed a knife at the victim's apartment. State v. Futrell, DAMAGES 49 (NCI4th). The trial court did not err by denying defendant's motions for judgment n.o.v. and directed verdict in a legal malpractice action where defendant alleged that the proximate cause of plaintiff's losses was plaintiff's failure to enforce a note or a personal guaranty, but a reasonable person would have concluded that an attempt to enforce either would have been unsuccessful. Smith v. Childs, 151 (NCI4th). The trial court erred in its instructions on damages in a legal malpractice action involving a purchase money deed of trust and a personal guaranty where plaintiff's claim was based on several alleged acts of negligence and the instructions did not present the proper measure of damages under one of the theories; the jury was not instructed on the exclusive nature of the theories; and the jury was not charged to consider monies plaintiffs actually received from the sale of their land. Smith v. Childs, DIVORCE AND SEPARATION 117 (NCI4th). The trial court's judgment of equitable distribution is reversed where the only findings supporting classifications of property were that the parties were married on 27 June 1975 and separated on 16 July 1990. Hunt v. Hunt, 119 (NCI4th). The trial court properly classified as marital property a lot on a lake bought during the marriage, items bought from defendant's mother's estate, and an automobile which defendant allegedly bought during one of the parties' many separations. Broome v. Broome, 140 (NCI4th). The trial court in an equitable distribution action did not err in valuing defendant's interest in an accounting partnership by the method provided in the partnership agreement for valuing the interest of a withdrawing partner, but the court erred by valuing the partnership interest on an after-tax basis. Harvey v. Harvey, 167 (NCI4th). The trial court did not err in distributing the parties' tax sheltered marital assets in accord with the parties' pretrial stipulations. Harvey v. Harvey, Defendant's partnership interest in an accounting partnership was subject to distribution under a QDRO even though it was not a pension or retirement fund. Ibid. The trial court did not err in failing to account for and distribute gains which accrued on the parties' retirement benefits after the date of separation. Ibid. 246 (NCI4th). The court's findings only as to the parties' earnings could not support a conclusion that plaintiff was the dependent spouse or that defendant was the supporting spouse. Hunt v. Hunt, 354 (NCI4th). An award of child custody to plaintiff mother is reversed where the court made findings as to the unfitness of defendant father but failed to make any findings regarding the fitness of plaintiff mother. Hunt v. Hunt, ENVIRONMENTAL PROTECTION, REGULATION, AND CONSERVATION 40 (NCI4th). The trial court erred in reversing the EMC's final agency decision denying plaintiff's request for a Federal Clean Water Act, Section 401 Water Quality Certification where substantial evidence supported the EMC's finding that the elimination of a wetland would lead to violation of the water quality standards in the waters in adjacent Topsail Sound. King v. N.C. Environmental Mgmt. Comm., EVIDENCE AND WITNESSES 218 (NCI4th). In a tort claim action to recover for the wrongful death of plaintiff's husband who slipped and fell to his death at a waterfall in a state park, the hearing commissioner did not err by excluding exhibits which showed remedial measures taken by the State at the park subsequent to the accident. Smith v. N.C. Dept. of Nat. Resources, 650 (NCI4th). Findings of fact were not required to support the trial court's denial of defendant's motions to suppress DNA evidence in a rape trial where defendant presented no evidence at the voir dire hearing and the testimony of the State's witness did not support defendant's contention regarding the unreliability of F.B.I. methodology. State v. Futrell, 969 (NCI4th). The trial court properly admitted tax department records under the public records exception to the hearsay rule in a prosecution for embezzlement by a public officer where the collection supervisor of the tax department identified the records as belonging to the tax department and testified that each record was generated and maintained by the tax department. State v. Oxendine, 1874 (NCI4th). The trial court did not err in a rape prosecution by admitting evidence that defendant's fingerprints were found on a window screen; whether fingerprints could have been impressed only at the time of the particular crime is ordinarily a question of fact to be determined by the jury, not a question of law to be determined by the court prior to the admission of fingerprint evidence. State v. Futrell, 2150 (NCI4th). The trial court erred in a legal malpractice action by allowing plaintiff's expert to testify as to legal conclusions regarding a purchase money deed of trust and personal guaranties; while legal experts may testify regarding the factual issues facing the jury, they are not allowed to interpret the law or to testify as to the legal effect of particular facts. Smith v. Childs, 2152 (NCI4th). The trial court erred in a legal malpractice action by allowing plaintiff's expert to testify as to legal conclusions regarding a purchase money deed of trust and personal guaranties. Smith v. Childs, 2170 (NCI4th). An expert need not base his opinion upon personal knowledge as long as the basis for his or her opinion is available in the record or available upon demand. State v. Futrell, 2211 (NCI4th). The trial court did not err in a prosecution for second-degree rape and assault on a female by admitting evidence of DNA profile testing. State v. Futrell, GUARANTY 17 (NCI4th). A material alteration of the contract between the principal debtor and creditor without the guarantor's consent will discharge the guarantor; however, the defendants in this case waived any defense of discharge by executing an agreement which provides that modifications will not discharge defendants. First Citizens Bank & Trust Co. v. McLamb, HOMICIDE 365 (NCI4th). The trial court erred in a second-degree murder prosecution by refusing defendant's request to instruct the jury on involuntary manslaughter where defendant testified that the victim was killed when she reached for the pistol in an attempt to prevent the victim from committing suicide. State v. Tidwell, 523 (NCI4th). The trial court erred in a second-degree murder prosecution by not giving defendant's requested instruction that the jury could find from the evidence that defendant had reconciled with the victim and that any malice shown by defendant's previous threats could no longer be attributed to the killing. State v. Tidwell, HUSBAND AND WIFE 1 (NCI4th). Commercial contract principles are not applicable to the marriage vows; the trial court in a divorce action properly dismissed a counterclaim based on breach of the obligations made at the marriage ceremony. Poston v. Poston, INSURANCE 621 (NCI4th). The trial court did not err in a declaratory judgment action to determine whether an insurance policy was in effect by granting summary judgment for the insurer where a check for a renewal premium was twice refused by the bank for insufficient funds, both refusals occurred after the expiration date, and defendant was in an accident after the expiration date. Nationwide Mutual Ins. Co. v. Choice Floor Covering Co., LIENS 4 (NCI4th). Plaintiff hospital authority was not entitled to a lien under G.S. 44-50 on settlement funds disbursed directly to the injured defendants who received medical care at plaintiff's facility since the statute applies only to funds paid to a third party. Charlotte-Mecklenburg Hospital Auth. v. First of Ga. Ins. Co., MORTGAGES AND DEEDS OF TRUST 119 (NCI4th). The trial court properly granted summary judgment for plaintiff in an action to collect the unpaid balance on an unsecured note given as partial payment for real property; the anti-deficiency statute does not act to bar an in personam action where the promissory note is unsecured. Wilkinson v. SRW/Cary Associates, MUNICIPAL CORPORATIONS 45 (NCI4th). A resolution of intent and not a resolution of consideration initiates an annexation proceeding pursuant to G.S. 160A-48. Asheville Industries, Inc. v. City of Asheville, 59 (NCI4th). The difference between a city's original figure that 64% of land to be annexed was comprised of lots and tracts five acres or less in size and the actual figure of 56.41% exceeded the statutorily permissible five percent margin of error. Asheville Industries, Inc. v. City of Asheville, 68 (NCI4th). An area sought to be annexed failed to meet the 60% minimum required under the subdivision test of G.S. 160A-48(c)(3). Asheville Industries, Inc. v. City of Asheville, 72 (NCI4th). The trial court erred in finding that part of an area to be annexed was industrial in use where the only industrial development of the land was a .79-acre easement which contained high tension power lines supported by steel towers. Asheville Industries, Inc. v. City of Asheville, 74 (NCI4th). The trial court erred in finding that a certain area to be annexed consisted of twenty separate lots where the lots all belonged to one person who had lived on the property since 1930, there were no improvements on the property except the owner's house and barn, only one road had been built on the property, and there had been no conveyances of lots. Asheville Industries, Inc. v. City of Asheville, NEGLIGENCE 140 (NCI4th). The trial court properly granted summary judgment for defendant in a negligence action arising from an injury suffered by plaintiff when she tripped over an umbrella protruding into an aisle from a display but plaintiff failed to show that defendant was on actual or constructive notice of the protrusion of the umbrella into the aisle. Padgett v. J.C. Penny Co., PARENT AND CHILD 25 (NCI4th). Grandparents do not have standing to seek custody or visitation of a child who has been placed in the custody of DSS after the child has been surrendered for adoption by one parent and the parental rights of the other parent have been terminated. In re Swing v. Garrison, 38 (NCI4th). The more specific provisions of Chapter 110 of the General Statutes dealing with the procedure for determining and enforcing support obligations of a father who voluntarily acknowledges paternity prevails over any conflicting procedure in Chapter 50 for determining and enforcing custody and support of minor children. Wake County ex rel. Horton v. Ryles, 43 (NCI4th). The defendant had sufficient notice of a child support hearing and the court properly entered an order against him where no complaint or summons was issued as required by Rules 3 and 4, but he had already signed an acknowledgment of paternity which met all of the requirements of G.S. 110-132(a) and the court complied with the requirements of G.S. 110-132(b). Wake County ex rel. Horton v. Ryles, 130 (NCI4th). The trial court did not err in adjudicating that respondent's child, who was in a residential school program for the deaf, was a neglected juvenile. In re Safriet, PARTITION 61 (NCI4th). The trial court's order requiring the sale of two tracts held by the parties as tenants in common is reversed where the court failed to find that actual partition would result in one of the cotenants receiving a share with a value materially less than the value of the share he would receive were the property partitioned by sale. Partin v. Dalton Property Assoc., PLEADINGS 289 (NCI4th). The trial court was not at liberty to consider a counterclaim set forth in an affidavit. First Citizens Bank & Trust Co. v. McLamb, 303 (NCI4th). Counterclaims were compulsory where defendant conceded that the claims arose from the same series of transactions as the original complaints. House Healers Restorations, Inc. v. Wall, 364 (NCI4th). The trial court did not abuse its discretion by denying a motion to amend an answer to add compulsory counterclaims and additional parties where the non-movants would have been penalized with more discovery and litigation because the movant was initially acting pro se and its first attorney was dilatory. House Healers Restorations, Inc. v. Wall, 375 (NCI4th). The trial court did not abuse its discretion in a legal malpractice action by allowing plaintiffs' motion to amend their pleadings where one of the new issues was sufficiently pled in the complaint and the others were tried by implied consent. Smith v. Childs, 401 (NCI4th). The trial court did not abuse its discretion in a legal malpractice action by allowing plaintiffs' motion to amend their pleadings where defendant impliedly consented to trial on most of the new issues by not objecting to the evidence as being outside the scope of the pleadings and the remaining new issue was sufficiently pled in the complaint. Smith v. Childs, PRINCIPAL AND SURETY 3 (NCI4th). Although defendant-guarantors in an action on notes contended that the bank had a duty to notify them that continuing guaranty agreements were in fact surety contracts, nothing in the record shows that the bank was attempting to deceive or mislead the defendants. First Citizens Bank & Trust Co. v. McLamb, RAPE AND ALLIED SEXUAL OFFENSES 98 (NCI4th). The trial court did not err by denying defendant's motion to dismiss charges of second-degree rape and assault on a female based on insufficient evidence. State v. Futrell, RULES OF CIVIL PROCEDURE 41.1 (NCI3d). The trial court properly dismissed an action which had been filed within one year of a previous dismissal where the uncontroverted record reveals that plaintiff took his dismissal after he had rested his case, there is no evidence suggesting that a stipulation was entered into between plaintiff and defendant, there is no evidence that plaintiff obtained an order from the trial court allowing a dismissal under Rule 41(a)(2), and North Carolina has not embraced the federal option of allowing the court to treat a late notice of dismissal as a motion under Rule 41(a)(2). Moore v. Pate, SEARCHES AND SEIZURES 58 (NCI4th). Cocaine seized from defendant was the fruit of a constitutionally impermissible search where an officer was justified in conducting a limited pat-down of defendant to determine whether defendant was armed and the officer discovered a rolled-up plastic baggie in defendant's pants pocket, but it was not immediately apparent to the officer that the baggie held contraband. State v. Beveridge, An officer's seizure of cocaine from defendant was lawful where the officer felt the contraband in defendant's pocket while conducting a pat-down search for weapons, and the character of the substance was immediately apparent to the officer. State v. Wilson, 82 (NCI4th). An officer had reasonable suspicion to seize defendant and to perform a pat-down search for weapons where police received an anonymous phone call that individuals were dealing drugs at an apartment complex, and defendant and several others attempted to flee the scene when officers approached the area. State v. Wilson, STATE 8.1 (NCI3d). Plaintiff's husband was contributorily negligent in slipping and falling to his death over a waterfall in a state park where the husband was familiar with the area and should have been aware of the obvious dangers there. Smith v. N.C. Dept. of Nat. Resources, 8.2 (NCI3d). In an action to recover for the wrongful death of plaintiff's husband who slipped and fell to his death at a waterfall in a state park, the State did not negligently attempt to warn of the danger of the waterfall with an inadequate sign since the danger surrounding the waterfall which dropped 200 feet was obvious and apparent, and the sign was therefore adequate. Smith v. N.C. Dept. of Nat. Resources, 10 (NCI3d). The full Industrial Commission did not err in adopting the decision of the Deputy Commissioner as its own without entering its own findings of fact and conclusions of law. Smith v. N.C. Dept. of Nat. Resources, TRESPASS 2 (NCI3d). The trial court did not err in a divorce action by dismissing a counterclaim for intentional infliction of emotional distress arising from adultery because the allegation of adultery does not constitute extreme and outrageous conduct. Poston v. Poston, TRIAL 3.2 (NCI3d). The trial court did not abuse its discretion in denying respondent's request for a continuance of a hearing on the merits on 20 January as to whether her child was neglected where respondent's trailer burned down around 3 February and she did not contact her attorney from 6 January until 19 February. In re Safriet,