CONTENTS BY TYPES OF CASES FILED 1 JUNE 1993 APPEAL AND ERROR 95 (NCI4th). An order denying discovery of documents was not immediately appealable where the record failed to disclose what evidence was being sought. N.C. Farm Bureau Mutual Ins. Co. v. Wingler, 99 (NCI4th). When the trial court's ruling involves an amendment to add a compulsory counterclaim, the denial of the motion to amend affects a substantial right and is immediately appealable. N.C. Farm Bureau Mutual Ins. Co. v. Wingler, 118 (NCI4th). The denial of a motion for summary judgment is an unappealable interlocutory order. N.C. Farm Bureau Mutual Ins. Co. v. Wingler, The denial of defendants' motion for summary judgment was immediately appealable where plaintiffs brought an action against the sheriff and jailer in their official and individual capacities after plaintiff Fred Slade suffered injuries while incarcerated. An immediate appeal lies where the summary judgment motion is based on a substantial claim of immunity. Slade v. Vernon, 147 (NCI4th). The trial court did not err in an action on a note by refusing to submit to the jury the issue of plaintiffs' liability for punitive damages for breach of fiduciary duty where any error was harmless under controlling Georgia law and defendant failed to object at trial. Powell v. Omli, Plaintiffs waived appellate review of alleged errors in instructions to the jury on breach of fiduciary duty by failing to call the trial court's attention to the specific alleged errors; moreover, any error was harmless. Ibid. There was no prejudicial error in the admission of a report from a financial consultant in an action arising from the failure of a company where the consultant testified as to the report's preparation and contents, the report was admitted into evidence, the next witness was asked four questions, and plaintiffs made a general objection to the admission of the report. Ibid. 156 (NCI4th). An assignment of error to the denial of a motion to dismiss for lack of subject matter jurisdiction because proper parties were not joined failed where plaintiffs failed to make a motion to dismiss for lack of subject matter jurisdiction pursuant to G.S. 1A-1, Rule 12(b)(1) and the trial court was denied the opportunity to rule on that motion. Powell v. Omli, A defendant in a prosecution for first-degree rape and indecent liberties could not challenge on appeal the sufficiency of the evidence where he made no reference to the pages in the record which would reflect that defendant made such a motion and an exhaustive review of the record reveals that defendant did not move to dismiss the charges at the close of the evidence. State v. McKinney, 421 (NCI4th). Plaintiffs could not argue on appeal that testimony and an exhibit constituted the improper opinion of a lay witness where they had made a specific objection at trial based upon the allegedly speculative and self-serving nature of the exhibit and testimony. Powell v. Omli, CONSTITUTIONAL LAW 86 (NCI4th). The trial court erred by not granting summary judgment for a sheriff and jailer on claims against them in their individual capacities under 42 U.S.C. 1983 where plaintiffs did not allege a violation of any specific constitutional law or right. A general allegation of conduct in violation of 42 U.S.C. 1983 is not sufficient to abrogate qualified immunity. Slade v. Vernon, CRIMINAL LAW 481 (NCI4th). The trial court did not err in a prosecution for rape and indecent liberties by denying defendant's motion for appropriate relief where the trial court concluded that defendant was not prejudiced by the alleged discussions among some members of the jury prior to deliberations. State v. McKinney, 809 (NCI4th). The trial court's error was not prejudicial in an assault prosecution where defendant presented no evidence and the court agreed to give an instruction on the effect of defendant's decision not to testify but did not do so. The evidence of guilt was overwhelming, defendant's theory of the case did not create an unmet expectation that defendant would testify, and the jury was told in the judge's opening statement as well as in the defense attorney's closing statement that defendant was not required to testify. State v. Pharr, 933 (NCI4th). Defendant was not entitled to appropriate relief per se in an assault prosecution where defendant presented no evidence and the court agreed at the charge conference to instruct the jury on defendant's decision not to testify; the court reconvened after defendant was found guilty on its own motion for appropriate relief; and the court denied it's own motion after hearing the arguments of counsel. The trial court upon its own motion should have the same opportunity to hear the arguments of counsel and conduct a review as when the motion is made by a party. State v. Pharr, 1098 (NCI4th). The trial court did not err when sentencing defendant for involuntary manslaughter arising from an automobile collision with a pedestrian by finding in aggravation that defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person. The conviction for driving while impaired was arrested and defendant's reckless driving in a neighborhood where he was likely to injure a number of people is not an element of involuntary manslaughter. State v. Garcia-Lorenzo, DIVORCE AND SEPARATION 354 (NCI4th). The trial court did not err in granting custody of a child to plaintiff mother rather than to defendant father even though there was some evidence that the child had been sexually abused by the stepfather. Flanders v. Gabriel, 494 (NCI4th). A North Carolina court had authority to exercise jurisdiction to determine custody of a child where the court found that the child has lived in North Carolina her entire life, that North Carolina is the child's home state, and that it is in the child's best interest that North Carolina assume jurisdiction over the custody determination. Williams v. Williams, 562 (NCI4th). The North Carolina courts were not required to give full faith and credit to an Indiana child custody order for a child taken to Indiana by her mother where the Indiana court failed to make the necessary findings to show that it exercised jurisdiction in conformity with the UCCJA, and the cause is remanded for a determination as to whether North Carolina has authority to exercise jurisdiction to decide custody pursuant to G.S. 58A-3. Williams v. Williams, The North Carolina courts were not required to give full faith and credit to an Indiana child custody order finding that the Indiana court has jurisdiction because the child has significant connections with that state where the child was born in North Carolina, has lived here all her life, and has never been to Indiana. Ibid. ENVIRONMENTAL PROTECTION 87 (NCI4th). Defendants were not entitled to a jury trial in an action by the DEHNR seeking to compel defendants to comply with the requirements of the Oil Pollution and Hazardous Substance Control Act for cleaning up a leakage of petroleum from an underground storage tank. State ex rel. Cobey v. Ballard, EVIDENCE AND WITNESSES 374 (NCI4th). There no error in a prosecution for first-degree rape and indecent liberties in the admission of evidence that defendant had made young girls watch films and that he slept overnight in his locked bedroom with a child under the age of 13 where the State offered the testimony as evidence of a common plan or scheme on the part of defendant to win the trust of young girls in order to molest them. State v. McKinney, 761 (NCI4th). Any error was harmless where a defendant in an action arising from the failure of a business testified from personal notes not introduced where plaintiffs did not request to see the notes, plaintiffs did not cross-examine defendant regarding the notes, plaintiffs failed to have the notes marked at trial for preservation in the record and failed to include the notes in the record on appeal, and the components largely constituting the figures read into evidence from a note had already been introduced. Powell v. Omli, 1245.1 (NCI4th). The trial court did not err in a second degree murder prosecution resulting in an involuntary manslaughter conviction by denying defendant's motion to suppress his statement that he was alone in the car which struck the victim where the statement was made in response to a question from an officer while defendant was under arrest but before he was given his Miranda warnings. State v. Garcia-Lorenzo, 1560 (NCI4th). Assuming that information which served as the basis for a search warrant was insufficient, officers reasonably relied on a search warrant that was issued by a detached and neutral magistrate and took every reasonable step to comport with the Fourth Amendment requirements. State v. Witherspoon, 1921 (NCI4th). The trial court did not err in a second degree murder prosecution arising from an automobile striking a pedestrian which resulted in an involuntary manslaughter conviction by denying defendant's motion to suppress the results of a chemical analysis of his blood where the blood was taken after defendant had been sedated and was unconscious and without a warning that he could refuse the test. State v. Garcia-Lorenzo, 2047 (NCI4th). There was no error in an action arising from the failure of a business in allowing a witness to testify that he would have invested in the business if he had received an up-to-date financial statement. Powell v. Omli, 2148 (NCI4th). There was no prejudicial error in the admission of a report from a financial consultant in an action arising from the failure of a company in which defendants counterclaimed for breach of fiduciary duty where the report was relevant. Powell v. Omli, 2154 (NCI4th). There was no prejudicial error in the admission of a report from a financial consultant in an action arising from the failure of a company where the qualifications of the witness indicate that the court did not err in admitting the report. Powell v. Omli, 2332 (NCI4th). The trial court erred in a prosecution for rape and indecent liberties by allowing a counselor who was neither tendered nor received as an expert to describe the victim's emotional state where the testimony went well beyond an opinion on emotions displayed on a given occasion to describe behavioral patterns and symptoms which are outside the perception of a lay witness. State v. Hutchens, The trial court erred in a rape and indecent liberties prosecution by admitting expert testimony regarding the characteristics of sexually abused children as substantive evidence; such testimony is admissible only to assist the jury in understanding the behavior patterns of sexually abused children. Ibid. 2874 (NCI4th). The trial court did not err in an assault prosecution by limiting defendant's cross-examination of a prosecution witness where the scope of cross-examination was limited by the court to protect the witness from harassment or undue embarrassment while making the interrogation effective for the ascertainment of the truth. State v. Pharr, FIDUCIARIES 1 (NCI4th). The trial court did not err in a breach of fiduciary duty counterclaim by denying plaintiff's motion for a directed verdict at the close of defendant's evidence where defendant had presented ample evidence of plaintiffs' breach of fiduciary duty. Powell v. Omli, HOMICIDE 218 (NCI4th). The trial court did not err by not dismissing a charge of second degree murder where defendant drove a car down a street at a high rate of speed and struck the victim, who was standing on the side of the street talking to people, the victim suffered an injury very high in the spinal column, the injury would impair movement below the head as well as breathing capabilities, the extent of the injury was discussed with the victim's family and the medical staff, a decision was reached that the situation was not salvageable, the breathing machine was removed but oxygen was still applied, and the victim died in about twenty minutes. State v. Garcia-Lorenzo, HUSBAND AND WIFE 3 (NCI4th). An oral agreement allegedly entered by the parties after their marriage that plaintiff would forego her career as a veterinarian and work as a teacher in a community college to provide total financial support for their family while defendant husband attended college and law school and that defendant would thereafter provide the family's total support so that plaintiff could devote her full time to being a wife and mother is unenforceable. Kuder v. Schroeder, INDICTMENT, INFORMATION, AND CRIMINAL PROCEEDINGS 29 (NCI4th). Indictments for first-degree rape which alleged that the date of the offenses was July, 1985 through July, 1987 were not fatally defective because time is not of the essence of the offense and does not constitute an element of the offense. State v. McKinney, 52 (NCI4th). Charges of first-degree rape and indecent liberties were not required to be dismissed where the indictments alleged that the offenses occurred on 15 March 1988 and the evidence at trial was that the offenses occurred in the summer of 1987. State v. McKinney, INSURANCE 728 (NCI4th). A purchaser of a home on an installment basis was entitled to recover under a joint homeowner's insurance policy only the amount of his insurable interest in the home which was the amount of equity he had paid toward the purchase price. N.C. Farm Bureau Mutual Ins. Co. v. Wingler, JUDGMENTS 44 (NCI4th). The trial court erred by denying plaintiff's motion to set aside a judgment on the grounds that it was signed out of term and out of district where consent does not appear in a writing signed by the parties or their counsel, the only evidence indicating consent is an affidavit from the trial judge, and it is apparent that the judge deciding the motion determined that plaintiff's attorney's action in drafting the judgment as directed and in not questioning the court's authority to enter the judgment constituted consent. Smith v. Gupton, JURY 1 (NCI4th). Defendants were not entitled to a jury trial in an action by the DEHNR seeking to compel defendants to comply with requirements of the Oil Pollution and Hazardous Substance Control Act for cleaning up a leakage of petroleum from an underground storage tank. State ex rel. Cobey v. Ballard, KIDNAPPING AND FELONIOUS RESTRAINT 32 (NCI4th). There was sufficient evidence in a kidnapping prosecution that defendant confined or restrained the victim for the purpose of terrorizing him. State v. Barnes, LABOR AND EMPLOYMENT 77 (NCI4th). Plaintiff's forecast of evidence was sufficient to support her claim for wrongful discharge under the public policy exception to the employment-at-will doctrine where plaintiff presented evidence that her working conditions deteriorated and she was later fired after she was subpoenaed and expressed a willingness to testify honestly about her employer in a former co-employee's suit against the employer although she never testified because the lawsuit was settled out of court. Daniel v. Carolina Sunrock Corp., LIMITATIONS, REPOSE, AND LACHES 27 (NCI4th). The statute of limitations for products liability actions was inapplicable where alleged defects in a mobile home manufactured by defendant caused neither personal injury nor damage to property other than to the manufactured product itself. Reece v. Homette Corp., The proviso "unless otherwise provided by statute" in G.S. 1-52(16) rendered the statute of limitations set forth in that statute inapplicable to plaintiffs' claim for damages allegedly caused by defendant's negligent manufacture of a mobile home purchased by plaintiffs because G.S. 25-2-725 is more specifically applicable to plaintiffs' claim. Ibid. Plaintiffs' claim for damages to their mobile home manufactured by defendant was barred by the one-year express warranty permitted by G.S. 25-2-725 and also by the four-year limitation of that statute. Ibid. NEGOTIABLE INSTRUMENTS 117 (NCI4th). The trial court erred by granting a directed verdict for plaintiffs in an action on a promissory note where defendant contended that there had been a failure of consideration in plaintiffs' breach of fiduciary duty to defendant. Powell v. Omli, PERJURY 12 (NCI4th). Defendant's answers of "No sir" to questions concerning a conversation about cocaine during testimony before the grand jury constituted "false statements" within the definition of perjury even though he hedged his answers when given second opportunities to give truthful answers by stating "I don't think so" or "I don't recall saying that," and defendant's answers were material to the grand jury's investigation of drug offenses in the county. State v. Basden, PRODUCTS LIABILITY 1 (NCI4th). Plaintiffs' complaint does not allege a claim under the Products Liability Act where plaintiffs seek recovery for damages to a mobile home manufactured by defendant and the alleged defects in the mobile home caused neither personal injury nor damage to property other than to the manufactured product itself. Reece v. Homette Corp.. PUBLIC OFFICERS AND EMPLOYEES 35 (NCI4th). The doctrine of governmental immunity protected a forensic pathologist from liability for alleged negligence in issuing an initial autopsy report stating that plaintiffs' son died as a result of suicide when defendant was officially requested by a county medical examiner to perform the autopsy to serve the public interest. Cherry v. Harris, RULES OF CIVIL PROCEDURE 15.1 (NCI3d). The trial court did not abuse its discretion in the denial of defendants' motion to amend their answer to add a compulsory counterclaim for unfair trade practices. N.C. Farm Bureau Mutual Ins. Co. v. Wingler, SANITARY DISTRICTS 2 (NCI3d). Evidence that respondent had discharged heavy metals into a district sewerage system provided just cause for the issuance of an ex parte administrative order prohibiting respondent metal plating business from further discharges into the sewerage system. Dist. Bd. of Metro. Sewerage Dist. v. Blue Ridge Plating Co., An order of the district board of a metropolitan sewerage district that respondent metal plating business's access to the sewerage system be permanently sealed was supported by the evidence and the board's findings. Ibid. SEARCHES AND SEIZURES 21 (NCI4th). Information from a concerned citizen that defendant was growing marijuana in the crawl space of his house was sufficiently reliable to provide probable cause for a search warrant where the magistrate was presented a sworn affidavit signed by two officers which stated that a third officer had been told of the marijuana by a concerned citizen who wished to remain confidential. State v. Witherspoon, Information from a concerned citizen that 100 marijuana plants had been seen growing in the crawl space of defendant's house "within the last 30 days" was not stale at the time the search warrant was issued. Ibid. SHERIFFS AND CONSTABLES 4 (NCI3d). The trial court correctly denied a motion for summary judgment by a sheriff and jailer as to plaintiffs' statutorily based negligence cause of action because the General Assembly specifically provided for a cause of action against a sheriff or other officer and their surety with the enactment of G.S. 58-76-5. Slade v. Vernon, The trial court improperly denied a motion for summary judgment by a sheriff and jailer as to their individual liability for injuries suffered by a prisoner. While plaintiffs alleged that defendants' negligence amounted to malice, mere allegations of malice alone are not sufficient to withstand a motion for summary judgment. Ibid. TRESPASS 2 (NCI3d). Alleged actions by defendant employer and its president after plaintiff was subpoenaed by a former co-worker to testify against defendant employer did not rise to the level of extreme and outrageous conduct so as to support plaintiff's claim for the intentional infliction of emotional distress. Daniel v. Carolina Sunrock Corp., VENUE 7 (NCI3d). The trial court did not err by denying defendant's motion for a change of venue as of right in an action arising from the provision of equipment and fuel for a marina in Dare County where the complaint, viewed in its entirety, reveals that the action does not directly affect title to land or a right or interest therein. Roanoke Properties v. Spruill Oil Co., 8 (NCI3d). Removal for convenience of parties and witnesses The trial court did not abuse its discretion by denying defendant's motion for a change of venue from Wake to Dare County for convenience of witnesses where several of defendant's affiants reside in Wake County and defendant's principal place of business is in Bertie County. Roanoke Properties v. Spruill Oil Co., UNFAIR COMPETITION 1 (NCI3d). The trial court properly voided the fuel purchase provisions of an agreement by which defendant furnished plaintiff equipment and fuel for a marina and plaintiff agreed to pay defendant 5 cents per gallon on fuel sold and to buy fuel exclusively from defendant. This was neither a requirements contract nor an exclusive dealing contract. Roanoke Properties v. Spruill Oil Co., UNIFORM COMMERCIAL CODE 11 (NCI3d). Plaintiffs' claim for damages to their mobile home manufactured by defendant was barred by defendant's one-year express warranty as permitted by G.S. 25-2-725. Reece v. Homette Corp., 43 (NCI3d). Secured transactions; transfer of security interest or collateral Where plaintiff sold kitchen appliances to defendant contractor for an apartment project and retained a security interest in the appliances, language in the security agreement providing that the contractor represented "that the products sold hereunder . . . will be resold only as a part of the building project or a unit thereof" constituted at least an implied authorization by plaintiff for the appliances to be sold as part of the apartment project, and plaintiff's security interest in the appliances was terminated under G.S. 25-9-306(2) when the contractor sold the apartment complex to the developer. Whirlpool Corp. v. Dailey Construction, Inc.,