Laches--school consolidation plan--delay awaiting bond referendum--
summary judgment
Summary judgment on the basis of laches was warranted for
defendant board of education in an action that sought an injunction
to prevent defendant from proceeding with a school building and
consolidation program where plaintiff's issues were based on
actions taken by defendant prior to its vote to proceed in July of
1997; plaintiff did not begin an action then but made an apparently
tactical decision to see if a bond referendum would settle matters;
the bond referendum passed in September of 1998, but plaintiff did
not institute suit until March of 1999; defendant proceeded during
that time with actions necessary to carry out the consolidation;
and defendant pled the affirmtive defense of laches. There is no
factual dispute; plaintiff may be charged with knowledge of the
facts underlying the claim, plaintiff could have brought the suit
when defendant approved the consolidation plan in July of 1997, and
defendant was prejudiced. Although laches was not mentioned in the
summary judgment order, summary judgment will be affirmed if it
can be sustained on any grounds.
Appeal by plaintiff from judgment filed 5 August 1999 by Judge
Knox V. Jenkins, Jr., in Bladen County Superior Court. Heard in
the Court of Appeals 15 August 2000.
Anderson, Johnson, Lawrence, Butler & Bock, L.L.P., by Steven
C. Lawrence, for plaintiff-appellant.
Tharrington Smith, L.L.P., by Michael Crowell, and Hester,
Grady, Hester, Greene & Payne, by Donna Gooden Payne, for
defendant-appellee.
EDMUNDS, Judge.
Plaintiff Save Our Schools of Bladen County, Inc. appeals the
trial court's order granting summary judgment to defendant Bladen
County Board of Education. We affirm.
In 1995, in anticipation of a major state school bond issue,the North Carolina Department of Public Instruction (DP
I) mandated
that each school system conduct an assessment of its anticipated
needs and prepare a ten-year building plan. At the request of
defendant, DPI conducted an assessment of Bladen County schools and
prepared its plan. DPI's study revealed that it would cost
approximately $35 million to bring the existing school facilities
up to standard. Plan development and adjustments for inflation
increased the overall estimated cost to approximately $45 million.
Although in December 1995 the Board of Commissioners of Bladen
County (the commissioners) approved the DPI report and plan in
order to satisfy the deadline for the state bond issue, the
commissioners requested that defendant develop a more economical
and educationally sound plan. Accordingly, defendant began
exploring other options after the passage of the school bond
referendum in November 1996. Bladen County school superintendent
Dr. Byron Lawson and his staff settled on five possible proposals.
These were presented to defendant in February 1997 at a one-day
retreat, which was open to the public.
At the retreat, defendant's members reached a nonunanimous
consensus in favor of a proposal that included closing the county's
two middle schools, converting its three existing high schools into
middle schools, and building two high schools. Defendant voted 7-1to proceed with this option at its May 1997 meeting, and in June
1997, defendant scheduled a public hearing for the thirtieth day of
that month. Three articles and one editorial discussing the
proposed construction plan were printed in the local Bladen County
newspaper.
After the sparsely-attended public hearing, defendant on 21
July 1997 voted 7-1 to approve its building and consolidation
program. However, only approximately $11 million was available to
defendant from the state bond referendum, which was insufficient tocarry out the plan. Defendant requested that the commissioners
issue an additional $25 million in local bonds to make up for the
shortfall. A county bond referendum was set for September 1998,
and both opponents and supporters of the plan campaigned actively
before the election. The referendum passed and was upheld over
protest.
On 9 March 1999, plaintiff, a nonprofit North Carolina
corporation composed of Bladen County citizens and taxpayers, filed
suit, seeking an injunction to prevent defendant from proceeding
further with its plan. Plaintiff alleged that defendant instituted
the consolidation plan without conducting a thorough study and
without properly noticing and holding public hearings, in violation
of N.C. Gen. Stat. § 115C-72 (1999); that defendant had thereafter
entered into option contracts for the purchase of real estate
without approval from county commissioners, in violation of N.C.
Gen. Stat. § 115C-426 (1999); that defendant entered into the
consolidation plan without amending its previous budget resolution,
in violation of N.C. Gen. Stat. §§ 115C-432(4) and 115C-433 (1999);
and that defendant failed to conduct a construction versus
renovation analysis, in violation of N.C. Gen. Stat. § 115C-521
(1999). Defendant asserted a Rule 12(b)(6) defense for failure to
state a claim upon which relief may be granted, N.C. Gen. Stat.
§ 1A-1, Rule 12(b)(6) (1999), and also raised laches as an
affirmative defense, see N.C. Gen. Stat. § 1A-1, Rule 8(c) (1999).
Defendant thereafter filed a motion for summary judgment supported
by affidavits from Dr. Lawson, school board members, and LarryHammond, the director of elections for Bladen County. After
hearing arguments and considering briefs, depositions, affidavits,
and exhibits, the trial court granted defendant's motion.
Plaintiff appeals.
Although plaintiff's appeal raises several issues pertaining
to defendant's compliance with N.C. Gen. Stat. § 115C-72 prior to
instituting its school consolidation plan, we need not reach these
questions. In its answer, defendant pled the affirmative defense
of laches. See N.C. Gen. Stat. § 1A-1, Rule 8(c).
In equity, where lapse of time has resulted in
some change in the condition of the property
or in the relations of the parties which would
make it unjust to permit the prosecution of
the claim, the doctrine of laches will be
applied. Hence, what delay will constitute
laches depends upon the facts and
circumstances of each case. Whenever the
delay is mere neglect to seek a known remedy
or to assert a known right, which the
defendant has denied, and is without
reasonable excuse, the courts are strongly
inclined to treat it as fatal to the
plaintiff's remedy in equity, even though much
less than the statutory period of limitations,
if an injury would otherwise be done to the
defendant by reason of the plaintiff's delay.
Teachey v. Gurley, 214 N.C. 288, 294, 199 S.E. 83, 88 (1938). The
burden of proving laches is on the party pleading the affirmative
defense. See Poultry Co. v. Oil Co., 272 N.C. 16, 157 S.E.2d 693
(1967).
When laches is raised, an appellate court faces
a three-fold question: (1) Do the pleadings,
affidavits and exhibits show any dispute as to
the facts upon which defendants rely to show
laches on the part of plaintiffs? (2) If not,
do the undisputed facts, if true, establish
plaintiffs' laches? (3) If so, is itappropriate that defendants' motion for
summary judgment, made under G.S. 1A-1, Rule
56(b), be granted?
Taylor v. City of Raleigh, 290 N.C. 608, 621, 227 S.E.2d 576, 584
(1976). The facts in the case at bar are undisputed. In February
1997, at a public retreat, defendant reached a nonunanimous
consensus to proceed with consolidation, and at its meeting in May
1997, defendant formally decided to begin the consolidation
process. On 2 June 1997, defendant scheduled a public meeting for
30 June 1997, and after that meeting, defendant in July 1997 gave
final approval to the building plan. The successful bond
referendum was held in September 1998, and plaintiff brought suit
in March 1999.
We next address whether these undisputed facts establish
laches. As an initial matter, we note that laches serves as a bar
only when the claimant knew of the existence of the grounds for the
claim. See Abernethy v. Town of Boone Bd. Of Adjustment, 109 N.C.
App. 459, 427 S.E.2d 875 (1993). Affidavits and depositions in the
record establish that public debate over the wisdom of
consolidation began after the February 1997 retreat where defendant
first reached a consensus in favor of consolidation. Although
plaintiff disputes the diligence with which news of the proposed
consolidation was disseminated, there is ample evidence in the
record that the issue was a matter of controversy in the community.
The local newspaper ran specific articles and an equally specific
editorial setting forth the time, place, and date of the meeting
and the issue to be addressed. See Editorial, School ExpansionProject Must Have Our Support, Bladen Journal, June 27, 1997,
at 4A
(“But don't take our word for it. Attend the Board of Education's
public meeting this Monday, June 30 at 7:30 p.m. It will be held
in the superior courtroom of the county courthouse and is intended
as a forum for citizens to get answers and to voice their opinions
regarding the expansion project.”). These articles are in contrast
to the general articles found insufficient to give a petitioner
notice of the facts underlying a claim in Allen v. City of
Burlington Bd. of Adjustment, 100 N.C. App. 615, 397 S.E.2d 657
(1990). In addition, one member of plaintiff is a spouse of a
school board member, and another member of plaintiff, in an
affidavit, described obtaining information about consolidation as
early as July 1996. Accordingly, plaintiff may be charged with
knowledge of the facts underlying its claim.
“'[T]he mere passage or lapse of time is insufficient to
support a finding of laches; for the doctrine of laches to be
sustained, the delay must be shown to be unreasonable and must have
worked to the disadvantage, injury or prejudice of the person
seeking to invoke it.'” Taylor, 290 N.C. at 622-23, 227 S.E.2d at
584-85 (quoting 22 Am. Jur. 2d Declaratory Judgments § 78 (1965)).
Because plaintiff challenges the thoroughness of defendant's study
prior to proceeding with consolidation and the sufficiency of
defendant's notice of public hearing on the plan, plaintiff could
have brought the instant suit when defendant gave final approval to
the consolidation plan in July 1997. Instead, plaintiff waited to
see the results of the September 1998 referendum, then waitedanother six months. According to plaintiff's complaint and
defendant's answer, defendant has entered into contracts that
include options to purchase land for the consolidated schools.
These actions undertaken by defendant in compliance with the
results of its own vote to consolidate and passage of the school
bond issue in a general election demonstrate that defendant has
been prejudiced by plaintiff's delay. This evidence is sufficient
to establish plaintiff's laches.
Finally, we must consider whether summary judgment was
appropriate. Summary judgment may be granted in favor of a
defendant raising an affirmative defense of laches, see Cannon v.
City of Durham, 120 N.C. App. 612, 463 S.E.2d 272 (1995), and “is
proper 'if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that any
party is entitled to a judgment as a matter of law,'” Thompson v.
Three Guys Furniture Co., 122 N.C. App. 340, 344, 469 S.E.2d 583,
585 (1996) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c)). As noted
above, there is no dispute about the facts alleged to constitute
laches. The trial court recited that it had considered affidavits,
depositions, and briefs and arguments of the parties, as summarized
above. The court's order granted summary judgment on the basis of
its finding that defendant did comply with the statutory
requirements for undertaking the consolidation program. Although
laches was not mentioned in the order, “[i]f the granting of
summary judgment can be sustained on any grounds, it should beaffirmed on appeal. If the correct result has been reached, the
judgment will not be disturbed even though the trial court may not
have assigned the correct reason for the judgment entered.” Shore
v. Brown, 324 N.C. 427, 428, 378 S.E.2d. 778, 779 (1989) (citations
omitted).
A survey of cases involving delayed challenges to state
actions may be found in Taylor, 290 N.C. 608, 227 S.E.2d 576. In
Taylor, the action challenging a rezoning ordinance was brought two
years and twenty-two days after the ordinance was adopted; during
that time, the purchaser of the rezoned property incurred expenses
in the development and use of the property. The Supreme Court held
that laches barred the suit challenging the rezoning. By contrast,
laches was not found in other cases recited in Taylor where
challenges had been brought within four days to three months of the
passage of the ordinance.
In the case at bar, plaintiff's issues are based on actions
taken by defendant prior to its vote to proceed with consolidation
in July 1997. Instead of instituting suit at that time, plaintiff
made what appears to have been a tactical decision to wait and see
whether defeat of the bond referendum would settle matters. When
the referendum passed in September 1998, plaintiff still did not
institute suit until March 1999. During that time, defendant was
proceeding with actions necessary to carry out the consolidation.
Based on plaintiff's delay and the resulting prejudice to
defendant, we hold that summary judgment was properly granted.
Affirmed.
Judges GREENE and SMITH concur.
*** Converted from WordPerfect ***