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The Court stated in Zickgraf Enterprises, Inc. v. Yonce, 63 N.C. App. 166, 303 S.E.2d 852 (1983):

The failure of a general contractor to be licensed does not render "void" the contract between the contractor and the owner.

The nature of the transaction is still extant, with the proviso that in an action brought against the owner by the general contractor, the owner may assert against the general contractor the affirmative defense of failure to be properly licensed.

This fulfills the purpose of the licensing statute which is the protection of the public against incompetent builders.

The licensing statutes should not be used as a shield to avoid a just obligation owed to an innocent party. Our courts will not impose penalties for the failure to comply with licensing requirements in addition to those specifically set out in the statute. Id. at 168, 303 S.E.2d at 853.

In Zenobile v. McKecuen, 144 N.C. App. 104, 109, 548 S.E.2d 756, 759 (2001), the Court held, in part, that "the trial court's decision to rule on the defendant's motion to dismiss before ruling on plaintiff's motion for leave to amend constitutes reversible error." Id.

However, in Zenobile the plaintiff filed a motion to amend before the defendant filed his motion to dismiss; the trial court failed to rule on the plaintiff's motion for approximately seven months.

The plaintiff in Zenobile filed the motion to amend within the applicable statute of limitations.

Finally, as the Court noted in Zenobile, "leave to amend a pleading may be properly denied under certain circumstances, including but not limited to undue delay, bad faith on the part of the movant, or undue prejudice to the opposing party by virtue of allowance of the amendment." Id.

In Young v. R.R., 266 N.C. 458, 466, 146 S.E.2d 441, 446 (1966), this Court explained the collateral source rule.

According to this rule a plaintiff's recovery may not be reduced because a source collateral to the defendant, such as "a beneficial society," the plaintiff's family or employer, or an insurance company, paid the plaintiff's expenses.

Rather, an injured plaintiff is entitled to recovery "'. . . for reasonable medical, hospital, or nursing services rendered him, whether these are rendered him gratuitously or paid for by his employer.'"

In Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000), the Industrial Commission found that a claimant's fibromyalgia had been caused by an accident at work based solely on the opinion testimony of Dr. Payne, who stated that "I think that the claimant does have fibromyalgia and I relate it to the accident primarily because, as I noted, it was not there before and she developed it afterwards. And that's the only piece of information that relates the two." Young, 353 N.C. at 232, 538 S.E.2d at 916. The instant case is distinguishable from Young in two ways:

(1) the evidence that Plaintiff's intention tremor may have been caused by the second surgery is greater than merely "post hoc ergo propter hoc," as Defendant contends, Id. at 232, 538 S.E.2d at 916; and more pertinently;

(2) the Full Commission did not find that the tremor was caused by the second surgery but specifically and unequivocally stated that an expert should "determine whether the tremor was related to his compensable condition or whether treatment would help it."

In Young v. Hickory Bus. Furn., 353 N.C. 227, 538 S.E.2d 912 (2000), the employee suffered back strain and received medical compensation from her employer. Id. at 228, 538 S.E.2d at 913-14.

Three years later, the employee was diagnosed with fibromyalgia, and her treating physician believed that her condition was related to her earlier work injury.

The employee sought additional medical benefits, but the employer claimed that there was no medical evidence to demonstrate that the employee's fibromyalgia was related to her work injury. Id. at 229, 538 S.E.2d at 914.

The employee's physician stated in his deposition: "I think the employee does have fibromyalgia and I relate it to the accident primarily because . . . it was not there before and she developed it afterwards.

And that's the only piece of information that relates the two." Id. at 232, 538 S.E.2d at 916.

The Commission awarded the employee disability compensation. Id. at 229, 538 S.E.2d at 914.

The Supreme Court of North Carolina reversed the Commission's decision, finding that the physician's opinion on causation "was based entirely upon conjecture and speculation." Id. at 231, 538 S.E.2d at 915.

The Court instructed:

The maxim "post hoc, ergo propter hoc after this, therefore because of this," denotes "the fallacy of . . . confusing sequence with consequence," and assumes a false connection between causation and temporal sequence. As such, this Court has treated the maxim as inconclusive as to proximate cause. This Court has also held that "it is a settled principle that the law looks to the immediate and not the remote cause of damage. . . . In a case where the threshold question is the cause of a controversial medical condition, the maxim of "post hoc, ergo propter hoc," is not competent evidence of causation. Id. at 232, 538 S.E.2d at 916.

In Yates v. New South Pizza, Ltd., 330 N.C. 790, 412 S.E.2d 666, reh'g denied, 331 N.C. 292, 417 S.E.2d 73 (1992), the Supreme Court held that the term "tort-feasors" as used in the Uniform Act included vicariously liable masters.

In Yates, the plaintiff was injured in an accident with a pizza deliveryman who was working for New South Pizza, Ltd., d/b/a Domino's Pizza.

The plaintiff settled with the driver for $ 25,000.00, the amount of his insurance coverage, and executed a covenant not to sue the driver or the driver's insurer, but "expressly reserved all rights to proceed against defendant ... employer." Id. at 791, 412 S.E.2d at 667.

In a divided opinion, the Court held that "for purposes of this Act, a 'tort-feasor' is one who is liable in tort." Id. at 794, 412 S.E.2d at 669.

In Yancey v. Watkins, 12 N.C. App. 140, 141, 182 S.E.2d 605, 606 (1971), defendants moved for a judgment on the pleadings after plaintiff filed an amended complaint, but before defendants filed their amended answer.

The Court vacated the trial court's grant of defendants' motion for judgment on the pleadings because it determined the pleadings were not closed. Id.

In Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972), the North Carolina Supreme Court permitted the introduction of blood-grouping tests to prove that a man could not be the father of a child when a question of paternity arose in a civil action.

In Wright, the Supreme Court noted that a blood test can rebut the presumption of paternity which attaches when a child is born during a marriage:

Although we continue to recognize its primary importance in preserving the status of legitimacy of children born in wedlock, this presumption must give way before dependable evidence to the contrary. Blood-grouping tests which show that a man cannot be the father of a child are perhaps the most dependable evidence we have known. Id. at 172, 188 S.E.2d at 325-26

The presumption of paternity is rebuttable because a man will not be required to support a child not his own; conversely, "the father of an illegitimate child has a legal duty to support his child." Wright v. Gann, 27 N.C. App. 45, 47, 217 S.E.2d 761, 763 (1975) (citing G.S. § 49-2), cert. denied, 288 N.C. 513, 219 S.E.2d 348 (1975).

In Wright v. Town of Matthews, 177 N.C. App. 1, 627 S.E.2d 650 (2006), the Court reversed a trial court's order entered 10 July 2006, which upheld the decision of the Town of Matthews Board of Adjustment that Home Place was a public road, and remanded the matter for further findings of fact as to "whether Home Place became a public street by means of implied dedication." Id. at 16, 627 S.E.2d at 661.

On remand, the trial court concluded in an order entered 11 July 2006 that "the decision of the Matthews Zoning Board of Adjustment was invalid" and further reversed and remanded the matter to the Matthews Board of Adjustment.

In Wrenn v. Hillcrest Convalescent Home, Inc., 270 N.C. 447, 448, 154 S.E.2d 483, 484 (1967), the Supreme Court affirmed dismissal of the plaintiff's suit where evidence showed the plaintiff had equal or superior knowledge of the icy condition of the defendant's sidewalk on which the plaintiff slipped and fell:

There is plenary evidence that plaintiff had full knowledge of the freezing and icy condition of the area.

The danger created by this condition was obvious, and plaintiff's evidence presents no facts from which it can be inferred that defendant had more knowledge than plaintiff of the alleged dangerous or unsafe condition.

Thus, considering all the evidence. . . we hold that the evidence shows no actionable negligence on the part of defendant. Wrenn, 270 N.C. at 448-49, 154 S.E.2d at 484.

In Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982) the Court made it clear that the enactment of the Rules of Civil Procedure "did not diminish the inherent and traditional authority of the trial judges of our state to set aside the verdict whenever in their sound discretion they believe it necessary to attain justice . . . ." Id. at 482, 290 S.E.2d at 602.

Following a jury verdict, the defendant in Worthington moved for a new trial pursuant to the provisions of sections 5, 6, and 7 of Rule 59 of our Rules of Civil Procedure.

The trial court allowed the defendant's motion in Worthington and entered a written order which provided in part that:

It being made to appear to the Court and the Court in its considered discretion being of the opinion that the Motion filed by the defendant in each case under Rule 59 of the North Carolina Rules of Civil Procedure should be allowed and granted. Id. at 480, 290 S.E.2d at 601.

In affirming the trial court's order in Worthington, our Supreme Court emphasized that the trial court's order "after reciting defendant's grounds for the motion, stated that the court was awarding a new trial as a matter of 'its considered discretion' (and thus not as a matter of law).

This fact is significant for it controls the scope of our review of the trial court's action." Id. at 481, 290 S.E.2d at 602.

The Supreme Court of North Carolina has held that, in deciding whether the attorney-client privilege attaches to a particular communication, the trial court must consider whether:

"(1) the relation of attorney and client existed at the time the communication was made;

(2) the communication was made in confidence;

(3) the communication relates to a matter about which the attorney is being professionally consulted;

(4) the communication was made in the course of giving or seeking legal advice for a proper purpose although litigation need not be contemplated;

(5) the client has not waived the privilege."

In Re Miller, 357 N.C. at 335, 584 S.E.2d at 786 (quoting State v. McIntosh, 336 N.C. 517, 523-24, 444 S.E.2d 438, 442 (1994)).

"If any one of these five elements is not present in any portion of an attorney-client communication, that portion of the communication is not privileged." Id.

The party who claims the privilege bears the burden of demonstrating that the communication at issue meets all the requirements of the privilege. Id. at 336, 584 S.E.2d at 787.

The work product doctrine prohibits an adverse party from compelling "the discovery of documents and other tangible things that are 'prepared in anticipation of litigation' unless the party has a substantial need for those materials and cannot 'without undue hardship . . . obtain the substantial equivalent of the materials by other means.'" Long v. Joyner, 155 N.C. App. 129, 136, 574 S.E.2d 171, 176 (2002) (quoting N.C. Gen. Stat. § 1A-1, Rule 26(b)(3)).

Pursuant to the rules of discovery, N.C. Gen. Stat. § 1A-1, Rule 26(b)(3), "documents prepared in anticipation of litigation are afforded a qualified immunity from discovery by the party seeking those documents." Cook v. Wake County Hospital System, 125 N.C. App. 618, 623, 482 S.E.2d 546, 550 (1997) (holding that an accident report prepared by a hospital regarding a doctor's slip and fall did not constitute work product).

In State v. Miller, 77 N.C. App. 436, 335 S.E.2d 187 (1985), the Court held that the exemption of workers' compensation benefits from the claims of creditors did not apply to an order for child support.

The Court held that the "obligation to support one's children is not a 'debt' in the legal sense of the word, and . . . helping to sustain the dependants of employees disabled on the job is one of the main purposes of our Workers' Compensation Act." Id. at 438-39, 335 S.E.2d at 188-89.

In Woods v. Smith, 297 N.C. 363, 255 S.E.2d 174 (1979), the North Carolina Supreme Court discussed the difference between evidential and judicial admissions.

The Court concluded, "when a party gives adverse testimony in a deposition or at trial, that testimony should not, in most instances, be conclusively binding on him to the extent that his opponent may obtain either summary judgment or a directed verdict." Id. at 374, 255 S.E.2d at 181.

However, Woods recognized an exception "when a party gives unequivocal, adverse testimony under factual circumstances such as were present in Cogdill v. Scates, in which case his statements should be treated as binding judicial admissions rather than as evidential admissions." Id.

In Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), the North Carolina Supreme Court enunciated a limited exception to the exclusivity provisions of the Workers' Compensation Act and held that an employee may pursue a civil action against his or her employer in situations in which the employer "intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct." Woodson at 340, 407 S.E.2d at 228.

The courts have defined "substantial certainty" as "more than the 'mere possibility' or 'substantial probability' of serious injury or death, . . . but less than 'actual certainty.'" Pastva v. Naegele Outdoor Advertising, 121 N.C. App. 656, 658-59, 468 S.E.2d 491, 493 (1996).

In Wilson v. Wilson, 269 N.C. 676, 153 S.E.2d 349 (1967), the plaintiff-father filed a civil custody action against the defendant-mother seeking custody of their four children.

After a two-day hearing, the trial court determined that neither party was qualified, fit, and suitable to have custody of the children.

The court thereupon placed the children in the custody of the Child Welfare Division of the Mecklenburg County Department of Public Welfare.

On appeal, the Supreme Court affirmed the trial court's order, noting that, "while it is true that a parent, if a fit and suitable person, is entitled to the custody of his child, it is equally true that where fitness and suitability are absent he loses this right." Id. at 677, 153 S.E.2d at 351.

"Where there are unusual circumstances and the best interest of the child justifies such action, a court may refuse to award custody to either the mother or father and instead award the custody of the child to grandparents or others." Id. at 677-78, 153 S.E.2d at 351.

In Wilson Building Co. v. Thorneburg Hosiery Co., 85 N.C. App. 684, 355 S.E.2d 815, disc. review denied, 320 N.C. 798, 361 S.E.2d 75 (1987), the Court concluded that, because the amount of attorney's fees for debts and obligations is set by statute, the arbitrator exceeded his authority by ordering fees in excess of that amount. Wilson Building Co., 85 N.C. App. at 686-88, 355 S.E.2d at 817-18.

More instructive, however, is the case of FCR Greensboro, Inc. v. C&M Investments, 119 N.C. App. 575, 459 S.E.2d 292, cert. denied, 341 N.C. 648, 462 S.E.2d 510 (1995).

In that case, the parties submitted for arbitration the amount of liquidated damages caused by the defendant completing construction of a building after the agreed-upon date. Id. at 576, 459 S.E.2d at 293.

The arbitrator awarded plaintiff these damages, but then also awarded plaintiff two other kinds of damages: (1) liquidated damages caused by delays in starting construction;

(2) reimbursement for certain changes plaintiff made to the sprinkler system that was installed. FCR Greensboro, 119 N.C. App. at 577-78, 459 S.E.2d at 294-95.

The Court held that the arbitrator exceeded his powers by making these additional awards. Id. at 578, 459 S.E.2d at 294-95.

In Williams v. Kuppenheimer Mfg. Co., 105 N.C. App. 198, 412 S.E.2d 897 (1992), defendant's loss prevention manager contacted the Charlotte Police Department after discovering evidence which led her to believe that plaintiff, one of defendant's store managers, was embezzling money from the store.

The loss prevention manager gave the police copies of the sales documents which had aroused her suspicion and the names of customers involved in three of the suspicious transactions.

A warrant was issued, and plaintiff was indicted.

The only investigation performed by the police investigator before seeking the warrant was to call the three customers identified by the loss prevention manager.

At trial, the charge against plaintiff was dismissed at the close of the State's evidence.

Subsequently, plaintiff brought a malicious prosecution action against defendant.

A jury found that defendant had initiated the prior criminal proceeding against plaintiff, and the trial court entered judgment in plaintiff's favor.

On appeal, the Court held that the trial court did not err in denying defendant's motion for directed verdict because "the jury could find defendant's actions went further than merely providing assistance and information" to the police. Williams, 105 N.C. App. at 201, 412 S.E.2d at 900.

The Court pointed out that defendant brought all of the documents used in plaintiff's prosecution to the police and noted that, besides speaking with the three customers identified by the loss prevention manager, "law enforcement officials never interviewed other customers, store employees, or plaintiff prior to" plaintiff's arrest. Id.

The Court further noted that law enforcement officials testified that they relied on the evidence compiled by the loss prevention manager.

The Court concluded that "except for the efforts of defendant, it is unlikely there would have been a criminal prosecution of plaintiff," and that under the circumstances of that case, the trial court properly determined that the first element of the claim was a factual matter for the jury to resolve. Id.

In Williamson v. Williamson, 140 N.C. App. 362, 536 S.E.2d 337 (2000), the Court first pointed out that "N.C. Gen. Stat. § 50-16.3A(c) (1995) requires the trial court, in making an alimony award, to set forth 'the reasons for its amount, duration, and manner of payment.'" Id. at 365, 536 S.E.2d at 339.

The Court remanded to the trial court for further findings because its alimony order "failed to provide any reasoning for the $ 1,500.00 monthly amount, why the award was permanent, or why it would be paid directly to the Union County Clerk of Court." Id.

In Williamson v. Bennett, 251 N.C. 498, 504, 112 S.E.2d 48, 52 (1960), a woman was involved in a car collision, but walked away without physical injury. Id. at 502, 112 S.E.2d at 51.

However, she suffered an intense fright during the accident because she feared that she had killed a child riding a bicycle, rather than collided with another car (the other driver also walked away unscathed). Id.

Over time, she developed emotional difficulties and physical symptoms, which a psychotherapist attributed to a "conversion reaction." Id.

She sought damages from the other driver for these injuries resulting from her "conversion reaction." Id. at 503, 112 S.E.2d at 51.

The Supreme Court of North Carolina determined:

The defendant was under no duty to anticipate or to take precautions against a mere possibility that plaintiff or other persons might imagine a state of facts that did not exist. The thing that plaintiff feared might have happened on this occasion is entirely remote from what actually did happen. And it was the imaginary thing, not the real occurrence, that caused the fright, neurosis and conversion reaction. Defendant is responsible only for the proximate result of her conduct, that is, for the damage caused by what actually did happen. Id. at 507, 112 S.E.2d at 55.

In Wilder v. Hill, 175 N.C. App. 769, 625 S.E.2d 572 (2006), a civil action for fraud and undue influence regarding the will of the plaintiff's stepfather was dismissed where the plaintiff did not present the script he claimed was decedent's last will at a prior caveat proceeding.

The plaintiff had been named as a beneficiary of his stepfather's will, executed in 1964.

The estate included a family residence, for which the plaintiff had given his stepfather money to maintain. The plaintiff's stepfather subsequently executed a will in 1998, excluding the plaintiff as a beneficiary.

Upon his stepfather's death, the plaintiff prosecuted a successful caveat proceeding, challenging the 1998 will based on fraud and undue influence, and the will tendered for probate was disallowed.

The plaintiff never presented the 1964 will during the caveat proceeding, however, and his stepfather's estate was distributed by intestate succession.

The plaintiff then attempted to recover money damages equal to one-half the value of the family residence or all the funds advanced to his stepfather for maintenance of the property.

The Court held that the plaintiff's claim to inherit lay in the alleged 1964 will, "the existence and validity of which he failed to establish during the caveat proceeding." Id. at 773, 625 S.E.2d at 575.

"Where a plaintiff may gain adequate relief in a caveat proceeding . . . a direct attack by caveat is a complete and adequate remedy at law." Id. at 772-73, 625 S.E.2d at 575.

In Wiggins v. Pelikan, Inc., 132 N.C. App. 752, 755-56, 513 S.E.2d 829 (1999), the court also established various factors to assist in the determination of whether the substantial certainty test was satisfied. Those factors are "whether the risk that caused the harm existed for a long period of time without causing injury. . . . Whether the risk was created by a defective instrumentality with a high probability of causing the harm at issue. . . . Whether there was evidence the employer, prior to the accident, attempted to remedy the risk that caused the harm. . . . Whether the employer's conduct which created the risk violated state or federal work safety regulations. . . . Whether the . . . employer created a risk by failing to adhere to an industry practice, even though there was no violation of a state or federal safety regulation and whether the . . . employer offered training in the safe behavior appropriate in the context of the risk causing the harm." Wiggins v. Pelikan, Inc., supra, 132 N.C. App. 756-58.

Those factors may provide guidance and serve to assist courts in the future that must address the issue. We agree that this list is not exclusive and that not every factor will be applicable in all factual situations. Furthermore, "no one factor is determinative in evaluating whether an employee has stated a valid . . . claim; rather, all of the facts taken together must be considered." Id., 756.

In Wicker v. Holland, 128 N.C. App. 524, 495 S.E.2d 398 (1998), the plaintiff had sued several individuals for negligence resulting in property damage arising out of work performed by Boles Paving, Inc. Boles Paving, Inc. was not named as a party-defendant in the original complaint, but a third-party complaint and a cross-claim were filed against Boles Paving, Inc. by the individual defendants, thereby providing notice to Boles Paving, Inc. of the claims. Id. at 526, 495 S.E.2d at 399-400.

Following the running of the statute of limitations, the plaintiff sought to amend her pleading to designate Boles Paving, Inc. as a defendant to the original complaint in order to allow relation back under Rule 15(c). Id. at 526, 495 S.E.2d at 400.

The trial court denied the motion to amend and we affirmed, rejecting the plaintiff's argument that Boles Paving, Inc. already had notice of the claim and would suffer no prejudice by being designated a party-defendant. Id. at 527, 495 S.E.2d at 400.

The Court stated that "this argument is irrelevant under Crossman's analysis of the limited reach of Rule 15(c). The plaintiff sought to add a party, and such action is not authorized by the rule." Id.

In Whitmire v. Cooper, 153 N.C. App. 730, 570 S.E.2d 908 (2002), a condemnation action of a piece of property was filed in Henderson County Superior Court.

Prior to the conclusion of that action, a group of taxpayers filed a separate action involving the same piece of property in Wake County Superior Court.

The Court held that the Wake County Superior Court properly dismissed the taxpayers' action, citing the Princess Lida doctrine, which requires a court to "abstain from exercising jurisdiction if 'the relief sought would require the court to control a particular property or res over which another court already has jurisdiction.'" Id. at 734, 570 S.E.2d at 911.

In Whitford v. Gaskill, 345 N.C. 475, 480 S.E.2d 690 (1997), the North Carolina Supreme Court, in a case of first impression, affirmed this Court's conclusion that an attorney-in-fact may not convey real property by gift unless the power of attorney expressly confers the authority to make gifts of real property.

In Whitford, the North Carolina Supreme Court noted that nearly every jurisdiction that had considered this issue had concluded:

A general power of attorney authorizing an agent to sell and convey property, even though it authorizes him to sell for such price and on such terms as to him shall seem proper, implies a sale for the benefit of the principal, and does not authorize the agent to make a gift of the property, or to convey or transfer it without a present consideration inuring to the principal. Id. at 477, 480 S.E.2d at 691.

The rationale behind this majority rule is that "an attorney-in-fact is presumed to act in the best interests of the principal," and a gift of the principal's property is potentially adverse to the principal's interests. Id. at 478, 480 S.E.2d at 692.

"Such power will not be lightly inferred from broad grants of power contained in a general power of attorney." Id.

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