CONTENTS 1 SEPTEMBER 1994 ACCORD AND SATISFACTION 8 (NCI4th). Defendant's tender of checks and plaintiff's endorsement and negotiation of them did not constituted an accord and satisfaction with respect to the amount of child support. Bromhal v. Stott, APPEAL AND ERROR 156 (NCI4th). An issue involving an appearance by an out-of-state attorney before the Property Tax Commission was not preserved for appeal where the County failed to timely object, stating "[w]e don't consent to it, but we do not contest it. Just for today, is that correct? . . . I wouldn't want to speak about the issue of her representation." In re Appeal of Stroh Brewery, ATTORNEYS AT LAW 25 (NCI4th). Assuming that the filing of a notice of appeal with the Property Tax Commission is the practice of law, the question of the right of the out-of-state attorney to file the notice of appeal is a collateral matter, unrelated to the merits of the appeal before the Commission. The attorney was a "property tax representative" or "consultant" of Stroh Brewery authorized to represent Stroh Brewery under Rule 3 of the North Carolina Property Tax Commission Rules. In re Appeal of Stroh Brewery, BOUNDARIES 25 (NCI4th). There was no prejudice in a processioning proceeding where the trial court had earlier granted a motion for summary judgment on the issue of the legal determination of the boundary line, effectively directing that the jury base its determination of the location of the boundary line upon the Cauley map submitted by plaintiffs Nichols, but included both the Cauley map and the Manning map, submitted by defendants Wilson, as options for the jury. Nichols v. Wilson, 33 (NCI4th). A judgment notwithstanding the verdict, which is merely a renewal of the earlier motion for a directed verdict, is improper in a processioning proceeding. Nichols v. Wilson, CORONERS AND MEDICAL EXAMINERS 32 (NCI4th). A trial court erred when ruling on a motion to dismiss in a wrongful autopsy action by entering conclusions of law in his order denying defendant Hjelmstad's motion to dismiss without entering findings of fact and by concluding that Hjelmstad acted outside the scope of his duties as a medical examiner and was not entitled to immunity, which had the same effect as granting a motion for summary judgment on the issue of liability. Epps v. Duke University, The trial court correctly denied defendant Hjelmstad's motion to dismiss a wrongful autopsy action where the complaint contained allegations that Hjelmstad acted outside the scope of his official duties and, although defendant Hjelmstad contended that he was entitled to immunity as the medical examiner, the Court of Appeals could not conclude from the allegations in the complaint that Hjelmstad was sued only in his capacity as medical examiner. Ibid. CRIMINAL LAW 33 (NCI4th). The trial court properly instructed the jury as to compulsion in accordance with State v. Kearns, 27 N.C. App. 354. State v. Barnes, 133 (NCI4th). The trial court did not err by failing to investigate a discrepancy between one of defendant's answers on his written transcript of plea and his response in open court where the trial court made the inquiry required by G.S. 15A-1022 and determined that the guilty plea was the product of defendant's informed choice and that there was a factual basis for the plea. State v. Washington, 767 (NCI4th). The trial court erred by refusing to instruct the jury to consider the principle of diminished capacity in evaluating the charge against defendant of assault with a deadly weapon with intent to kill inflicting serious injury. State v. Williams, 786 (NCI4th). The trial court properly instructed the jury as to compulsion in accordance with State v. Kearns, 27 N.C. App. 354, where the defense initially requested that the judge instruct the jury as to coercion or duress and counsel for defendant withdrew the request after the State asked the court to give the instruction in accordance with Kearns. State v. Barnes, 1067 (NCI4th). The trial court did not commit reversible error by allowing victim impact statements as to sentence. State v. Williams, 1079 (NCI4th). Where the sentencing court makes findings of aggravating and mitigating factors even though it is not required to do so, the findings may be disregarded as mere surplusage. State v. Washington, 1084 (NCI4th). The trial court was not required to make findings of aggravating or mitigating factors where the term, though exceeding the total of the presumptive terms for the consolidated offenses, was imposed pursuant to a plea arrangement as to sentence. State v. Washington, The defendant was not entitled to appeal as a matter of right and his appeal was dismissed where defendant had pled guilty pursuant to a plea arrangement in which his exposure would be limited to 40 years on condition that he testify truthfully if necessary against other defendants and the trial court imposed a sentence in excess of the presumptive term. Defendant's guilty plea limiting exposure to 40 years amounts to a plea arrangement as to sentence and the trial court need not make findings as to aggravating or mitigating factors if it imposes a prison term pursuant to any plea arrangement as to sentence. State v. Williams, 1140 (NCI4th). The evidence was not sufficient to support the nonstatutory aggravating factor of pecuniary gain where defendant was convicted of being an accessory after the fact to murder where there was no evidence showing that defendant's reliance upon Vick caused her to assist Vick in his escape. State v. Barnes, 1171 (NCI4th). The trial court did not err by considering the unusually large amount of drugs found at the crime scene as an aggravating factor in sentencing defendant for second-degree murder and assault with a deadly weapon. State v. Williams, 1189 (NCI4th). The trial court erred in using evidence supporting a joined offense in aggravation of defendant's consolidated sentence. State v. Williams, DISCOVERY AND DEPOSITIONS 21 (NCI4th). There is no distinction between a discovery deposition and a trial deposition under Rule of Civil Procedure 32. Robertson v. Nelson, DIVORCE AND SEPARATION 168 (NCI4th). The trial court did not err in an equitable distribution action in its calculation of plaintiff's share of defendant's pension benefits. Barlow v. Barlow, 408 (NCI4th). Defendant's tender of checks and plaintiff's endorsement and negotiation of them did not constitute an accord and satisfaction with respect to the amount of child support. Bromhal v. Stott, 547 (NCI4th). The trial court did not err in awarding attorney's fees to plaintiff in an action to enforce the child support provision of a separation and property settlement agreement where the agreement provided for the recovery of such fees in an action to enforce provisions of the agreement. Bromhal v. Stott, EASEMENTS 30 (NCI4th). The trial court did not err by granting a directed verdict on the issue of a prescriptive easement on a cartway claim where defendants Wilson, who were asserting the cartway claim as a part of a larger processioning proceeding, presented no evidence to rebut the presumption that any past use of the cartway was permissive and there was evidence that it was permissive. Nichols v. Wilson, 60 (NCI4th). Even though plaintiff had a permissive use of a right-of- way over defendant's lands, plaintiff was entitled to an easement by necessity where the court found that the tracts of plaintiff and defendant were once held in common ownership that was severed by conveyance, and that as a result of the conveyance plaintiff had no access to a public highway except over defendant's property. Whitfield v. Todd, ESTOPPEL 15 (NCI4th). The trial court's conclusion in an action on a note that plaintiff was not estopped from invoking its rights under the agreement by previous acceptance of late payments was sufficiently supported by a finding of fact that plaintiff did not change her position in any way to her detriment in reliance on any action or inaction by plaintiff. NationsBank of North Carolina v. Thompson, EVIDENCE AND WITNESSES 336 (NCI4th). The trial court did not abuse its discretion in admitting evidence regarding defendant's prior acts in engaging in excessive conduct with other co-employees and his reputation created thereby in an action for damages from an injury suffered during a movie stunt. Pinckney v. Van Damme, 1235 (NCI4th). The trial court in a prosecution in which defendant was convicted of being an accessory to murder correctly concluded that defendant's incriminating statement to officers was made voluntarily where she was never taken into custody or deprived of her freedom. State v. Barnes, 1357 (NCI4th). The trial court did not err in a murder prosecution in which defendant was convicted of being an accessory by admitting only a portion of defendant's confession where defendant offered the statement into evidence. State v. Barnes, 1987 (NCI4th). The trial court erred by excluding as cumulative a discovery disposition of plaintiff's treating physician where this deposition was different from a trial deposition in that it provided medical testimony that the collision in question caused plaintiff to suffer impotence as well as low back pain. Robertson v. Nelson, 2118 (NCI4th). Evidence of the value of a repossessed car should have been admissible as a factor to be considered in determining if the sale of the automobile was in a commercially reasonable manner. Fieldcrest Cannon Employees Credit Union v. Mabes, 2211 (NCI4th). The trial court did not err in admitting DNA test results into evidence in an action for criminal conversation, and any issues as to chain of custody of plaintiff's wife's underwear on which DNA testing was performed were for the jury to decide. McLean v. Mechanic, EXECUTORS AND ADMINISTRATORS 8 (NCI4th). The clerk and the trial court erred in determining that "next of kin" and "heir" are synonymous under G.S. 28A-4-1, the statute establishing the priority for letters of administration. In re Bryant, The clerk and the court erred in failing to find that petitioner was the next of kin to the decedent where respondent admitted that petitioner is the mother of the decedent. Ibid. GAS AND OIL 40 (NCI4th). The trial court erred by granting summary judgment for defendant Foust Oil Company on a claim for violation of the Oil Pollution and Hazardous Substances Control Act where the forecast of evidence showed that gas was transported from Foust's plant to Phelps store by tanker and pumped from the truck into underground storage tanks, gas from the store's UST then entered groundwater drawn into plaintiff's wells, resulting in injuries to plaintiffs' property and persons, there was evidence that the deliveryman stopped making deliveries to leaking tanks, and there was other evidence that the deliveryman continued to pump gas into leaking tanks. Jordan v. Foust Oil Company, A gasoline supplier like defendant Foust Oil Company may be found to have "control over" gasoline discharged from an unsound underground storage tank it filled but does not own. Ibid. HEALTH 2 (NCI4th). The Alexander County Health Department was a state agency, defendant health department employee was an agent of the state, and the Industrial Commission had exclusive jurisdiction of a negligence action alleging damages to plaintiff because of delays in the permitting process for development of property in the county. Robinette v. Barriger, HOMICIDE 369 (NCI4th). There was sufficient evidence to deny defendant's motion to dismiss a charge of accessory after the fact to first-degree murder where the evidence showed that defendant assisted Vick in escaping detection and arrest and that she knew that Vick had committed the murders. State v. Barnes, 678 (NCI4th). The trial court erred by refusing to instruct the jury to consider the principle of diminished capacity in evaluating a charge of assault with a deadly weapon with intent to kill inflicting serious injury, but the court properly refused to instruct the jury to consider diminished capacity with respect to the element of malice in second- degree murder. State v. Williams, HUSBAND AND WIFE 61 (NCI4th). The trial court erred in setting aside a punitive damages award for criminal conversation where the jury found that defendant had committed criminal conversation, awarded no compensatory or nominal damages, and awarded punitive damages, since plaintiff was entitled to at least nominal damages which would support the award of punitive damages. McLean v. Mechanic, INSURANCE 549 (NCI4th). The trial court erred in a declaratory judgment action arising from an automobile accident action by concluding that Ms. Gaddy was not insured under defendant Universal's policy and that Universal had no duty to provide coverage or indemnity to Ms. Gaddy or her parents where Brandy Dryman was injured when a vehicle driven by Ms. Gaddy overturned; that vehicle was a loaner owned by Meeker Lincoln Mercury, insured by defendant Universal under a garage liability policy, and loaned to Ms. Gaddy's parents while their vehicle was being repaired; and Universal was required by G.S. 20-279.21(b)(2) to insure persons operating the vehicle with Meeker's permission, as was Ms. Gaddy, but the policy provides that Universal will pay its pro rata share of the minimum limits if there is other applicable insurance, which Integon provided as the insurer of Ms. Gaddy's parents. Integon Indemnity Corp. v. Universal Underwriters Ins. Co., JUDGMENTS 43 (NCI4th). The trial court did not err by entering judgment out of session, out of term, and out of county. G.S. 1A-1, Rule 6(c) provides that the expiration of the court's session has no effect on the power of the court "to do any act or take any proceeding," which rule "clearly allows a superior court judge to sign a written order out of session without the consent of the parties so long as the hearing to which the order relates was held in term." Pinckney v. Van Damme, 157 (NCI4th). A default judgment was reversed and the matter remanded where plaintiff filed a complaint requesting a deficiency judgment on a repossessed car on 23 July 1991; defendant requested and was given an enlargement of time to answer to 25 September 1991; the answer and counterclaim were not filed until 30 September 1991; and plaintiff filed a motion to strike the answer and counterclaim and for entry of default judgment on 11 August 1992. Plaintiff lost its right to an entry of default by failing to take action until defendant's answer and counterclaim were filed and there was no prejudice from the late filing. Fieldcrest Cannon Employees Credit Union v. Mabes, JURY 10 (NCI4th). Defendant's failure to timely demand a jury trial constituted a waiver by him of a jury trial of right, and the denial of a belated demand for a jury trial was within the discretion of the trial court. Whitfield v. Todd, LIMITATIONS, REPOSE, AND LACHES 60 (NCI4th). The trial court did not err by entering judgment on the pleadings in defendant's favor based on the statute of limitations where plaintiff's complaint sets out facts amounting to a claim of subrogation in which plaintiff took the place of the business and the statute of limitations had run as to the business. Aetna Casualty and Surety Co. v. Anders, MORTGAGES AND DEEDS OF TRUST 17 (NCI4th). The trial court did not err by allowing a foreclosure where respondents, the Wrights, are the present owners of a residence previously owned by the Kaseys, a home equity line of credit taken out by the Kaseys was not cancelled after closing, and the Kaseys withdrew money from the line of credit after the closing and declared bankruptcy. Raintree Realty and Construction v. Kasey, MUNICIPAL CORPORATIONS 96 (NCI4th). A city was not statutorily required to provide to owners of property being involuntarily annexed, as a part of the mailing of notice of the public hearing on annexation, a form for requesting the extension of water and sewer lines to their property or notice of their right to request such a form. Barnhardt v. City of Kannapolis, 105 (NCI4th). The evidence supported the trial court's findings that disputed lines on proposed water and sewer maps in an annexation report were city boundary lines, and that the city thus did not fail to install water and sewer lines in substantial conformity with the maps. Barnhardt v. City of Kannapolis, 123 (NCI4th). A claim by owners of annexed property that defendant city was statutorily required, without request, to provide them with a form for the extension of water and sewer lines and notice that they could request such extensions was a challenge to the city's compliance with statutory annexation provisions and was barred by the 30-day limit set forth in G.S. 160A-50(a). Barnhardt v. City of Kannapolis, NUISANCE 11 (NCI4th). The trial court erred by granting summary judgment for defendant Foust Oil Company on a nuisance action arising from leaking underground storage tanks owned by a third party to which Foust had delivered gasoline. Jordan v. Foust Oil Company, PHYSICIANS, SURGEONS, AND OTHER HEALTH CARE PROFESSIONALS 96 (NCI4th). The trial court erred in granting summary judgment for defendant attending physicians on the issue of negligent supervision of resident physicians who were allegedly negligent in the delivery of plaintiff's child, but the trial court properly entered summary judgment against plaintiff on the issue of direct negligence by the attending physicians. Rouse v. Pitt County Memorial Hospital, Plaintiff's forecast of evidence was sufficient to raise a genuine issue of material fact as to whether defendant attending physicians had the right to control resident physicians so as to be vicariously liable for the negligence of the resident physicians in the delivery of plaintiff's child. Ibid. PLEADINGS 15 (NCI4th). The trial court did not err in setting aside an award for punitive damages in a slander action as a sanction because plaintiff prayed for punitive damages in excess of $100,000 in violation of Rule of Civil Procedure 8(a)(2). McLean v. Mechanic, 65 (NCI4th). An order imposing Rule 11 sanctions against an attorney was reversed and remanded where the judge failed to identify the motions and pleadings which were misleading or incorrect and plaintiff's motion for sanctions also failed to identify the motions and pleadings which allegedly violated Rule 11. Logan v. Logan, 364 (NCI4th). The trial court did not abuse its discretion in an action for a deficiency on a note by denying defendant's motion to amend her answer to assert new counterclaims where the court noted that granting the motion would materially prejudice plaintiff by requiring plaintiff to defend against claims for affirmative relief for the first time almost two years after plaintiff instituted the action. NationsBank of North Carolina v. Thompson, SEARCHES AND SEIZURES 48 (NCI4th). The trial court in a murder and assault trial properly admitted evidence seized from defendant's residence, where the crimes occurred, pursuant to an emergency warrantless search which closely followed an initial sweep by the first responding officers. State v. Williams, STATE 23 (NCI4th). The Alexander County Environmental Health Supervisor was protected by sovereign immunity where plaintiff's allegations of negligence against him related to his official duties. Robinette v. Barriger, 31 (NCI4th). A DEHNR employee's conduct in holding meetings and revoking improvement permits in connection with plaintiff's efforts to develop property in Alexander County was not malicious, wanton, and reckless. Robinette v. Barriger, 38 (NCI4th). The Alexander County Health Department was a state agency, defendant health department employee was an agent of the state, and the Industrial Commission had exclusive jurisdiction of a negligence action alleging damages to plaintiff because of delays in the permitting process for development of property in the county. Robinette v. Barriger, TAXATION 87 (NCI4th). There was sufficient evidence to support the Property Tax Commission's findings of total accrued depreciation where the Commission's finding that improvements on the property were affected by functional and economic obsolescence which the County did not consider was supported by competent, material and substantial evidence. In re Appeal of Stroh Brewery, 99 (NCI4th). The Property Tax Commission did not err in denying the County's motion to dismiss an appeal from the Forsyth County Board of Equalization and Review's affirmation of Forsyth County's valuation of property owned by the Stroh Brewery Company where the County had moved to dismiss because Stroh's out-of-state attorney was not licensed to practice law in North Carolina. The question of the right of the attorney to file the notice of appeal is a collateral matter, unrelated to the merits of the appeal before the Commission. In re Appeal of Stroh Brewery, 173 (NCI4th). Registration of a product eligible for exemption from the soft drink tax does not operate retroactively. John R. Sexton & Co. v. Justus, Plaintiff's fruit and vegetable juice concentrates were exempt from the soft drink tax even though they were not registered where the Soft Drink Tax Act did not clearly require registration at the relevant time period. Ibid. TORTS 12 (NCI4th). A document signed by plaintiff was effective as a release of defendant from liability from any claims arising out of the welding of the gas pedal of plaintiff's car. Sims v. Gernandt, 21 (NCI4th). A release of defendant mechanic from liability for any claims arising from the welding of the gas pedal of plaintiff's car could not be set aside for mutual mistake where plaintiff failed to assert that defendant was mistaken about the extent of the alleged damage from his welding. Sims v. Gernandt, 23 (NCI4th). Plaintiff was not entitled to set aside a release of defendant automobile mechanic from liability for repairs to her car on the ground of improper inducement where plaintiff failed to allege that defendant procured her signature on the release by fraud, and plaintiff admitted that she signed the release without reading it. Sims v. Gernandt, TRESPASS 46 (NCI4th). The trial court erred by granting summary judgment for defendant Foust Oil Company on a trespass claim arising from leaking underground storage tanks owned by a third party to which Foust had delivered gasoline. Jordan v. Foust Oil Company, TRIAL 533 (NCI4th). The trial court did not abuse its discretion by denying defendant's motion for a new trial based on juror misconduct where plaintiff alleged that defendant had engaged in willful and wanton, negligent and reckless conduct in striking plaintiff during a movie stunt; the foreperson sent a note to the judge during deliberations expressing concern that one juror had visited a karate school, discussed the case with an instructor, had watched news reports of the trial, and discussed it with her husband; defendant's motion for an immediate mistrial was denied; each juror was examined by the trial court and counsel in chambers and on the record after a verdict against defendant; and defendant's motions for a judgment notwithstanding the verdict and a new trial were denied. Pinckney v. Van Damme, 584 (NCI4th). A trial court erred when ruling on a motion to dismiss in a wrongful autopsy action by entering conclusions of law in his order denying defendant Hjelmstad's motion to dismiss without entering findings of fact. Epps v. Duke University, 598 (NCI4th). There was no error in the trial court's findings of fact in an action in district court on a note where there was competent evidence before the court to support the trial court's findings. NationsBank of North Carolina v. Thompson, WAIVER 1 (NCI4th). The trial court did not err in its conclusion that plaintiff had not waived its rights under a note by accepting late payments where the court found that plaintiff had notified defendant over one hundred times that prompt payment would be expected in the future. NationsBank of North Carolina v. Thompson, WILLS 164 (NCI4th). The trial court incorrectly granted summary judgment for defendants Daniel in a declaratory judgment action to construe a will where John Daniel left all of his real and personal property to his brothers, "or to the survivor"; both brothers predeceased him, leaving children; a sister who had been left nothing also predeceased the testator and left a child, who would take under intestate succession; and the inclusion of the "survivor" language indicates merely that the testator did not contemplate that both of his brothers would predecease him rather than an intent contrary to the anti-lapse statute. Early v. Bowen, WORKERS' COMPENSATION 69 (NCI4th). The trial court did not abuse its discretion by denying defendant's motion for judgment notwithstanding the verdict in an action to recover damages for injuries sustained during the filming of a movie where plaintiff had received workers' compensation benefits and thereafter filed this action alleging that defendant, a fellow employee of Cannon Films, Inc., had engaged in willful and wanton, negligent and reckless conduct in striking plaintiff. Pinckney v. Van Damme, 273 (NCI4th). The only minor child of the decedent at the time of his work-related death was entitled to receive the entire compensation payable under G.S. 97-38, even after the minor child turned 18, to the exclusion of an adult child of the decedent. Allen v. Piedmont Transport Services, ZONING 46 (NCI4th). Defendant board of adjustment did not err when it interpreted a city's zoning ordinance to require that a group home be "primarily" for rehabilitation. Taylor Home of Charlotte v. City of Charlotte, A zoning board of adjustment did not err in deciding that a facility for people with full-blown AIDS was not a group home permitted in a single-family residential area by the local zoning ordinance. Ibid. 93 (NCI4th). An amendment which rezoned two tracts of land from residential and agricultural to industrial special use constituted illegal spot zoning. Budd v. Davie County, 113 (NCI4th). Adjacent property owners had standing to appeal the decision of the local zoning administrator concluding that a facility to house people with full-blown AIDS was a group home and that the permit to build the facility was properly issued. Taylor Home of Charlotte v. City of Charlotte, 116 (NCI4th). Plaintiff had standing to bring a declaratory judgment action to challenge the validity of an amendment to a county zoning ordinance where plaintiff was an adjacent property owner who had an easement interest in part of the rezoned land. Budd v. Davie County,