No person or set of persons is entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services.
History Note. - The provisions of this section are similar to those of Art. I, § 7, Const. 1868, as amended in 1946.
Legal Periodicals. - For note on the six year statutory bar to products liability actions, in light of Tetterton v. Long Manufacturing Co., 314 N.C. 44, 332 S.E.2d 67 (1985), see 64 N.C.L. Rev. 1157 (1986).
For note, "Municipal Ownership of Cable Television Systems: Madison Cablevision, Inc. v. City of Morganton," see 68 N.C.L. Rev. 1295 (1990).
For article, "What Exactly Is a 'Substantial Constitutional Question' for Purposes of Appeal to the North Carolina Supreme Court?," see 33 Campbell L. Rev. 211 (2011).
For article, "Economic Development Incentives and North Carolina Local Governments: A Framework for Analysis," see 91 N.C. L. Rev. 2021 (2013).
Editor's Note. - Most of the cases cited below were decided under former Art. I, § 7, Const. 1868, before and after its amendment in 1946.
The purpose of this constitutional provision was not to prevent the community from exercising legislatively authorized powers to operate public enterprises, but to prevent the community from surrendering its power to another person or set of persons by grant of exclusive or separate emoluments or privileges unless they were granted in consideration of public services; it is not retention of powers, but alienation of powers, that is prohibited. Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989).
Fundamental Safeguards. - The wisdom and foresight of our ancestors is nowhere more clearly shown than in providing these fundamental safeguards against partial and class legislation, the insidious and ever-working foes of free and equal government. Simonton v. Lanier, 71 N.C. 498 (1874).
Counties Not Within Purview of Section. - Counties, as political subdivisions of the State, do not seem to be within the purview of this section, considering the vast number of local legislative acts, including ABC laws in contradiction to the general prohibition law, which are passed each session by the General Assembly. Mathis v. North Carolina, 266 F. Supp. 841 (M.D.N.C. 1967).
This section does not preclude the legislature from making classifications and distinctions in the application of laws, provided they are reasonable and just and not arbitrary. Motley v. State Bd. of Barber Exmrs., 228 N.C. 337, 45 S.E.2d 550, 175 A.L.R. 253 (1947).
This provision does not forbid all classifications of persons with reference to the imposition of legal duties and obligations. State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967); Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).
Motivation of Legislation Determinative. - The constitutional limitation contained in this section has been frequently invoked by the Supreme Court to strike down legislation conferring special privileges not in consideration of public service; but where the motivation is for a public purpose and in the public interest, and does not confer exclusive privilege, legislation has been upheld. Brumley v. Baxter, 225 N.C. 691, 36 S.E.2d 281, 162 A.L.R. 930 (1945); State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967).
The limitation of this section, like that of N.C. Const., Art. I, § 19, does not apply to an exemption from a duty imposed upon citizens generally if the purpose of the exemption is the promotion of the general welfare, as distinguished from the benefit of the individual, and if there is reasonable basis for the legislature to conclude that the granting of the exemption would be in the public interest. State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967); Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).
This section constitutes a specific constitutional prohibition against gifts of public money, and the legislature has no power to compel or even to authorize a municipal corporation to pay a gratuity to an individual to adjust a claim which the municipality is under no legal obligation to pay. Brown v. Board of Comm'rs, 223 N.C. 744, 28 S.E.2d 104 (1943).
Statutes Which Confer Benefits on a Particular Group of Persons. - A statute which confers an exemption that benefits a particular group of persons is not an exclusive emolument or privilege within the meaning of this section, if: (1) the exemption is intended to promote the general welfare rather than the benefit of the individual, and (2) there is a reasonable basis for the legislature to conclude the granting of the exemption serves the public interest. Town of Emerald Isle ex rel. Smith v. State, 320 N.C. 640, 360 S.E.2d 756 (1987).
Punitive Damages Cap. - Section § 1D-25, placing a cap on an award of punitive damages, is not unconstitutional special legislation, because it applies equally to all defendants and creates no distinction between groups. Rhyne v. K-Mart Corp., 149 N.C. App. 672, 562 S.E.2d 82 (2002), aff'd, 358 N.C. 160, 594 S.E.2d 1 (2004).
Section § 1-50(6) does not grant "exclusive or separate emoluments or privileges" to the persons it protects in violation of this section. Tetterton v. Long Mfg. Co., 314 N.C. 44, 332 S.E.2d 67 (1985).
Section § 62-2 does not confer an exclusive emolument or privilege by creating a private benefit only for those residents of unserved areas in violation of this section. State ex rel. Utils. Comm'n v. Carolina Util. Customers Ass'n, 336 N.C. 657, 446 S.E.2d 332 (1994).
Statutes of Limitations. - Section § 1-50(6) (now G.S. § 1-50(a)(6)) does not grant "exclusive or separate emoluments or privileges" to the persons it protects in violation of this section. Tetterton v. Long Mfg. Co., 314 N.C. 44, 332 S.E.2d 67 (1985).
Former employee did not adequately allege a free speech claim, an equal protection claim, and an exclusive emoluments claim when she had an adequate state remedy for those violations because the employee's claim under the Whistleblower Act, G.S. § 126-86, was an adequate state law remedy for her alleged free speech violation, her claim of misappropriation of state funds was expressly covered by the Act, G.S. § 126-84, and thus was an adequate state law remedy for her exclusive emoluments clause claim; because the employee's equal protection claim alleged discrimination based on activities protected by the Whistleblower Act, it was also precluded. Helm v. Appalachian State Univ., 194 N.C. App. 239, 670 S.E.2d 571 (2008).
Validity of G.S. § 24-5. - The Legislature could reasonably have concluded that the classification scheme established by G.S. § 24-5 would best serve to further important and legitimate public purposes, including compensation of a plaintiff for the loss-of-use value of a damage award, the prevention of unjust enrichment to liability insurers who are required by law to maintain claim reserves on which interest is earned, and the promotion of settlement by these insurers, who unlike self-insurers, have as their primary business the insuring, investigation, defense and settlement of claims. The Legislature could have reasonably concluded that the distinction between defendants with liability insurance and those without was a valid one, and that the public welfare would be best served by such a classification. Therefore, G.S. § 24-5 does not create a special emolument or privilege within the meaning of this section. Lowe v. Tarble, 312 N.C. 467, 323 S.E.2d 19 (1984), aff'd on rehearing, 313 N.C. 460, 329 S.E.2d 648 (1985).
Section § 24-5 does not violate N.C. Const., Art. I, §§ 19 and 32 or the equal protection and due process clauses of U.S. Const., Amend. XIV. Harris v. Scotland Neck Rescue Squad, Inc., 75 N.C. App. 444, 331 S.E.2d 695, cert. denied, 314 N.C. 329, 333 S.E.2d 486 (1985).
Escrow fund which a town created to help it defray the costs of condemning land so a public road could be widened and improved promoted the public welfare, and the trial court ruled correctly that the fund was not an exclusive emolument that violated N.C. Const., Art. I, § 32, even though property owners who lived along the road contributed to the fund. Town of Highlands v. Hendricks, 164 N.C. App. 474, 596 S.E.2d 440 (2004), cert. denied, - N.C. - , 605 S.E.2d 149 (2004).
Section § 53-229, relating to the acquisition and control of certain nonbank banking institutions, does not violate the commerce clause of the U.S. Constitution, nor the equal protection, exclusion emoluments and antimonopoly provisions of N.C. Const., Art. I, §§ 19, 32 and 34. Citicorp v. Currie, 75 N.C. App. 312, 330 S.E.2d 635, cert. denied and appeal dismissed, 314 N.C. 537, 314 N.C. 538, 335 S.E.2d 15, 335 S.E.2d 16 (1985).
Extension of city council term of office did not result in an exclusive emolument in violation of the state constitution. Crump v. Snead, 134 N.C. App. 353, 517 S.E.2d 384 (1999), cert. denied, 351 N.C. 101, 541 S.E.2d 143 (1999).
The State cannot authorize a city to donate property, or to grant privileges to one class of citizens not enjoyed by all, except in consideration of public services. Brown v. Board of Comm'rs, 223 N.C. 744, 28 S.E.2d 104 (1943); Brumley v. Baxter, 225 N.C. 691, 36 S.E.2d 281, 162 A.L.R. 930 (1945).
City's refusal to grant cable television franchises to private applicants did not violate the exclusive emoluments and monopoly clauses of this section and N.C. Const., Art. I, § 34, or the anti-monopoly and unfair trade practices of Chapter 75. Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989).
An expenditure by a municipality for special training of a police officer does not grant an exclusive emolument or privilege to the officer contrary to this section. Green v. Kitchin, 229 N.C. 450, 50 S.E.2d 545 (1948), discussed in 27 N.C.L. Rev. 500 (1949).
A pension paid a governmental employee for long and efficient service is not an emolument which, by this section, cannot be paid. To the contrary, it is a deferred portion of the compensation earned for services rendered. Great Am. Ins. Co. v. Johnson, 257 N.C. 367, 126 S.E.2d 92 (1962).
Benefits received by State employees under the Retirement Fund are deferred payments of salary for services rendered, and therefore such payments do not offend this section of the State Constitution. Bridges v. City of Charlotte, 221 N.C. 472, 20 S.E.2d 825 (1942).
Allowances to which a member of the Teachers' and State Employees' Retirement System is entitled upon retirement constitute compensation for public services previously rendered and do not violate this section. Harrill v. Teachers' & State Employees' Retirement Sys., 271 N.C. 357, 156 S.E.2d 702 (1967).
Severance Pay. - Where county manager worked one month after giving notice of his resignation and received all compensation due him under the terms of his employment with the county, severance pay would be compensation beyond that due for services rendered and, thus, constitutionally impermissible. Leete v. County of Warren, 341 N.C. 116, 462 S.E.2d 476 (1995).
Severance pay to county manager who voluntarily resigned violated North Carolina Constitution, Art. 1, § 32, because county manager was to be compensated for duties that were not performed, since the record reflected that the compensation was not for prior services rendered, and he was paid all benefits due him. Leete v. County of Warren, 341 N.C. 116, 459 S.E.2d 232 (1995).
Statute including deputy sheriffs within term "employee" as used in Workers' Compensation Act was consonant with the provisions of this section. Towe v. Yancey County, 224 N.C. 579, 31 S.E.2d 754 (1944).
Extinguishment of County's Subrogation Lien Against Injured Employee. - Trial court did not abuse its discretion in extinguishing a county's subrogation lien against a deputy sheriff regarding a settlement that he received following an injury in the course of his employment because G.S. § 97-10.2(j) did not violate the Exclusive Emoluments Clause of N.C. Const., Art. I, § 32. Helsius v. Robertson, 174 N.C. App. 507, 621 S.E.2d 263 (2005), appeal dismissed, review denied, 360 N.C. 363, 629 S.E.2d 851, recons. denied, 360 N.C. 533, 633 S.E.2d 815 (2006).
Services in the armed forces during war are "public services" within the meaning of this section. Brumley v. Baxter, 225 N.C. 691, 36 S.E.2d 281, 162 A.L.R. 930 (1945); Motley v. State Bd. of Barber Exmrs., 228 N.C. 337, 45 S.E.2d 550, 175 A.L.R. 253 (1947).
Statute making certain war veterans eligible for license to practice barbering without being examined did not violate this section. Motley v. State Bd. of Barber Exmrs., 228 N.C. 337, 45 S.E.2d 550, 175 A.L.R. 253 (1947).
Loans to Students. - Session Laws 1967, c. 1177, authorizing the State Education Assistance Authority to issue revenue bonds and to use the proceeds therefrom for making loans to "residents of this State to enable them to obtain an education in an eligible institution," does not unconstitutionally authorize use of public funds in violation of this section. State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 174 S.E.2d 551 (1970).
Collecting from Only Those Patients Who Can Pay. - The law makes no unconstitutional discrimination between classes when it charges all tubercular patients the same rate, but actually collects only from those who can pay. Graham v. Reserve Life Ins. Co., 274 N.C. 115, 161 S.E.2d 485 (1968).
Grant of Special Privilege to Named Person to Facilitate Public Transportation. - Though, as a rule, a grant of a special privilege, not conferred upon persons generally, to a particular man for his own peculiar benefit, naming him, may be unconstitutional, the legislature unquestionably has the power, in order to provide for the public convenience or to facilitate transportation of persons and property, to confer on a designated person the right to build a bridge, or to establish a ferry, with the power to charge tolls for the use of such crossings, and, in addition, to exempt the servant who may be placed in charge from all public burdens. State v. Womble, 112 N.C. 862, 17 S.E. 491 (1893); State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967).
Grant of a special charter to a railroad or other like corporation is not in conflict with this section of the Constitution, the charters of public service corporations coming directly within the exception contained in this provision. Reid v. Norfolk S.R.R., 162 N.C. 355, 78 S.E. 306 (1913).
As to grant of charters to municipal corporations, as agencies of the State, created for the benefit of the public, see Kornegay v. City of Goldsboro, 180 N.C. 441, 105 S.E. 187 (1920).
Contract to Relieve Railway of Expense of Removing Tracks. - Where the State Highway Commission agreed to appropriate a sum of money for the improvement of a city street upon condition that tracks and facilities of a street railway company be removed therefrom, and the railway company was operating under a franchise having 20 more years to run, which provided that the railway company should save the city harmless from any damage resulting from the construction of its tracks, and where the city entered into a contract with the railway company providing that in consideration of the abandonment of its franchise along said street the city would acquire for it an alternate right-of-way and would remove the tracks from the street, the court held that the promise by the city to remove the tracks did not constitute a special emolument not in consideration of public service. Boyce v. City of Gastonia, 227 N.C. 139, 41 S.E.2d 355 (1947).
A provision in the charter of a warehouse corporation to the effect that such corporation should not be liable for loss or damages not provided for in its warehouse receipt or contract attempted to confer exclusive privileges and was therefore unconstitutional under this section. A.H. Motley & Co. v. Southern Finishing & Whse. Co., 122 N.C. 347, 30 S.E. 3 (1898); A.H. Motley Co. v. Southern Finishing & Whse. Co., 124 N.C. 232, 32 S.E. 555 (1899).
A provision in a bank's charter allowing it to charge more than the legal rate of interest was void under this section of the Constitution where no public services were rendered in consideration of the grant. Simonton v. Lanier, 71 N.C. 498 (1874).
Private Act Incorporating Bank and Authorizing Summary Judgment on Note. - This provision of the State Constitution did not make invalid a provision in a private act incorporating the Bank of Newbern which authorized summary judgment and execution against one who defaulted in the payment of a note, as such privilege was not a gift, but the consideration for it was the public good, to be derived to the citizens at large from the establishment of the bank. President & Dirs. of Bank of Newbern v. Taylor, 6 N.C. 266 (1813); State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967).
Public-Local Law as to Sale of Claims Against Closed Banks. - Public-local laws providing that depositors of certain closed banks might sell their claims for deposits to persons indebted to the banks at the date of their closing, and that the liquidation agents of such banks should accept such purchased claims at their face value in payment of the purchasers' debts to the banks, would be held unconstitutional and void, being in violation of this section. Edgerton v. Hood, 205 N.C. 816, 172 S.E. 481 (1934).
Exempting corporations chartered prior to a certain date from proscription against emptying into streams substances inimical to fish was held to violate this section. State v. Glidden Co., 228 N.C. 664, 46 S.E.2d 860 (1948).
A local public law which provided that the provisions of former G.S. § 44-14 should be read into private construction bonds was in contravention of this section and N.C. Const., Art. I, § 31, the statute failing to operate uniformly and equally in giving special privilege to the residents of the particular county and imposing heavier burdens on certain sureties. J.O. Plott Co. v. H.K. Ferguson Co., 202 N.C. 446, 163 S.E. 688 (1932).
Law Burdening Business in One Portion of State and Not Others. - Any law which, purporting to operate on a particular class, places upon those engaged in business in a portion of the State a burden for a privilege which is exercised freely and without additional charge by those engaged in the business in other parts of the State is arbitrary in classification, because it discriminates within the class originally selected and extends to the latter a privilege and immunity not accorded to those who must, under the law, pay the additional exaction or quit the business. State v. Harris, 216 N.C. 746, 6 S.E.2d 854, 128 A.L.R. 658 (1940).
Denying a nonprofit corporation the right to construct and operate its proposed hospital on its own property with its own funds with adequate staff and equipment was a grant to existing hospitals of exclusive privileges forbidden by this section. In re Aston Park Hosp., 282 N.C. 542, 193 S.E.2d 729 (1973).
Maintenance of Market House. - It is within the power of a city or town to provide, by contract with its citizens, a market house, and to exclude, with certain reasonable exceptions, the sale of fish at other places, it appearing that, under the contract, the market house was to remain under the full control of the municipal authorities, and that reasonable accommodation had been provided for the vendors, with reasonable charges for the stalls. State v. Perry, 151 N.C. 661, 65 S.E. 915 (1909).
The state constitution forbids the granting of an exclusive license. Durham v. North Carolina, 395 F.2d 58 (4th Cir. 1968).
And the holder of a nonexclusive franchise has no monopoly, and cannot complain of competition from a publicly created utility system. Phrased another way, the creation by a state of a competing public utility does not amount to a "taking" compensable under U.S. Const., Amend. XIV. Durham v. North Carolina, 395 F.2d 58 (4th Cir. 1968).
An act authorizing the grant of an exclusive franchise to operate a race track was held unconstitutional as being in violation of this section, notwithstanding a municipality receives a fraction of the gross receipts. State ex rel. Taylor v. Carolina Racing Ass'n, 241 N.C. 80, 84 S.E.2d 390 (1954), commented on in 33 N.C.L. Rev. 109 (1954).
The exclusive privilege granted to the holder of a franchise to operate a dog race track under a statute is not in consideration of public service within the meaning of this section, and the statute is unconstitutional. State v. Felton, 239 N.C. 575, 80 S.E.2d 625 (1954).
Regulation of Vehicles for Hire. - A municipal ordinance requiring all operators of passenger motor vehicles for hire within the city to deposit with the treasurer of the city policies of liability insurance in responsible companies authorized to do business in the State in a stipulated amount for each car operated, or cash or securities in the sum required, was in contravention of this section and of N.C. Const., Art. I, § 34, in that the ordinance failed to provide that the security required might be furnished by one or more solvent individual sureties. State v. Sasseen, 206 N.C. 644, 175 S.E. 142 (1934), commented on in 13 N.C.L. Rev. 222 (1935).
Regulation of Ambulance Service. - For case holding county ordinance regulating ambulance service unconstitutional, see Whaley v. Lenoir County, 5 N.C. App. 319, 168 S.E.2d 411 (1969).
As to the unconstitutionality of former G.S. § 153-9(58)(a)(2) because of the possible retroactive application of the grandfather clause, see Whaley v. Lenoir County, 5 N.C. App. 319, 168 S.E.2d 411 (1969).
Former G.S. § 153-9(58)(a)(6), granting to counties the power to set minimum limits of liability insurance coverage for ambulances, was not void as being in contravention of constitutional prohibitions against monopolies and exclusive emoluments, since the paragraph did not provide that liability insurance would be the exclusive method of indemnifying persons or property against loss due to negligent operation of the ambulance service. Whaley v. Lenoir County, 5 N.C. App. 319, 168 S.E.2d 411 (1969).
Regulation as to Practice of Medicine. - An act prohibiting the practice of medicine without registration held not within the inhibition of this section merely because it contained a proviso to the effect that the act would not apply to midwives nor to nonresident consulting physicians, as this did not constitute an exclusive privilege within the meaning of the section. State v. Van Doran, 109 N.C. 864, 14 S.E. 32 (1891). See also, State v. Biggs, 133 N.C. 729, 46 S.E. 401 (1903).
Regulation as to Pilots. - The selection by a commission of persons qualified to act as pilots is not violative of this section. St. George v. Hardie, 147 N.C. 88, 60 S.E. 920 (1908).
Statute Providing for Tile Contractor's License. - Statute requiring a license for any person, firm or corporation undertaking to lay, set or install ceramic tile, marble or terrazzo floors or walls violated this section. Roller v. Allen, 245 N.C. 516, 96 S.E.2d 851 (1957).
Restrictions on vehicular traffic contained in Session Laws 1983, Chapter 539 were intended to promote the general welfare of the public and were reasonably based to further that intent. Thus, those restrictions do not violate this section. Town of Emerald Isle ex rel. Smith v. State, 320 N.C. 640, 360 S.E.2d 756 (1987).
Agreements to Pay Basketball Team 50% of Coliseum's Profits. - The provisions of agreements between the defendant city and defendant owner of a competitive basketball team which required the team and team owners to be paid 50% of the City's Coliseum parking, food and beverage profits did not violate the prohibition on exclusive or separate emoluments or privileges where the purpose of the agreements, all provisions included, was to promote the public benefit by means of optimum use of the Coliseum. Peacock v. Shinn, 139 N.C. App. 487, 533 S.E.2d 842 (2000), cert. denied, 353 N.C. 267, 546 S.E.2d 110 (2000).
Manufacturing Incentives. - Taxpayers failed to state a claim for relief under the Public Purpose Doctrine, N.C. Const., Art. V, §§ 2(1) and (7), regarding their challenge to state and local incentives provided to the business to locate its computer manufacturing facility in the county since they did not show that a public purpose was not involved; likewise, they also failed to state a claim for relief under the Exclusive Emoluments clause, N.C. Const., Art. I, § 32, for the same reason, especially since the incentives further a proper public purpose of providing economic incentives to recruit business to the state to further the general welfare of the public. Blinson v. State, 186 N.C. App. 328, 651 S.E.2d 268 (2007), review denied, appeal dismissed, 362 N.C. 355, 661 S.E.2d 240 (2008).
In an action challenging the constitutionality of an incentives agreement under G.S. § 158-7.1(a), the incentives did not violate N.C. Const. Art. 1, § 32 because judicial precedent had already determined that G.S. § 158-7.1(a) promoted the public benefit, and thus it necessarily was not an exclusive emolument. Haugh v. County of Durham, 208 N.C. App. 304, 702 S.E.2d 814 (2010), review dismissed 717 S.E.2d 397, 2011 N.C. LEXIS 683 (N.C. 2011).
Applied in Lamb v. Wedgewood S. Corp., 55 N.C. App. 686, 286 S.E.2d 876 (1982); White v. Pate, 308 N.C. 759, 304 S.E.2d 199 (1983); State v. McCleary, 65 N.C. App. 174, 308 S.E.2d 883 (1983); State v. Stanley, 79 N.C. App. 379, 339 S.E.2d 668 (1986); State ex rel. Martin v. Preston, 325 N.C. 438, 385 S.E.2d 473 (1989); Myers v. Town of Plymouth, 135 N.C. App. 707, 522 S.E.2d 122 (1999).
Cited in Loughlin v. North Carolina State Bd. of Registration, 32 N.C. App. 351, 232 S.E.2d 219 (1977); Wood v. City of Fayetteville, 43 N.C. App. 410, 259 S.E.2d 581 (1979); In re Arcadia Dairy Farms, Inc., 43 N.C. App. 459, 259 S.E.2d 368 (1979); In re DeLancy, 67 N.C. App. 647, 313 S.E.2d 880 (1984); State ex rel. Banking Comm'n v. Citicorp Sav. Indus. Bank, 74 N.C. App. 474, 328 S.E.2d 895 (1985); Town of Emerald Isle v. State, 78 N.C. App. 736, 338 S.E.2d 581 (1986); Empire Distribs. of N.C. Inc. v. Schieffelin & Co., 677 F. Supp. 847 (W.D.N.C. 1988); Gwathmey v. State ex rel. Dep't of Env't, Health & Natural Resources, 342 N.C. 287, 464 S.E.2d 674 (1995); Gwathmey v. State ex rel. Dep't of Env't, Health & Natural Resources, 342 N.C. 287, 464 S.E.2d 674 (1995); Royal v. State, 153 N.C. App. 495, 570 S.E.2d 738 (2002); Bailey v. Flue-Cured Tobacco Coop. Stabilization Corp., 158 N.C. App. 449, 581 S.E.2d 811 (2003); Munger v. State, 202 N.C. App. 404, 689 S.E.2d 230 (2010); Saine v. State, 210 N.C. App. 594, 709 S.E.2d 379 (2011); Elliott v. Enka-Candler Fire & Rescue Dep't, Inc., 213 N.C. App. 160, 713 S.E.2d 132 (2011).