1. Appeal and Error--record--extension of time to settle--not
timely
A hearing held by a trial court to settle a record was not
timely where plaintiff filed a notice of appeal on 9 November
1999; plaintiff served defendants with a proposed record on 5
January 2000, to which objections were filed; plaintiff served a
request to settle the record on 2 February; plaintiff filed a
notice of hearing on her request to settle the record on 3 March;
the trial court judge signed an order purporting to extend time
to settle the record on 17 March; it appears that a hearing was
held on 17 March and that the court filed an order settling the
record on 28 March; and the record was filed with the Court of
Appeals on 12 April. The hearing to settle the record and the
subsequent order were not timely and exceeded the authority of
the trial court to grant extensions because the trial court may
only consider motions to extend the time for the service of the
proposed record on appeal, but plaintiff presented no such motion
in this case. Nevertheless, the Rules of Appellate Procedure
were suspended in this case to permit consideration of the
appeal. N.C. R. App. P. 11(c).
2. Appeal and Error--assignments of error--not required--
whether summary judgment properly granted
Assignments of error are not required where the question
presented is whether summary judgment was properly granted.
3. Civil Procedure--summary judgment--notice--judgment on the
pleadings
There was no error in the trial court granting summary
judgment for a defendant in an action contesting the closing of
a purported street where plaintiff contended that she had not
received proper notice, but the record contained no affidavits,
interrogatories or anything else other than the pleadings. The
court's entry of judgment is deemed to have been made pursuant to
a motion for judgment on the pleadings under Rule 12(c), so that
plaintiff was not entitled to the ten days' notice required for a
motion for summary judgment.
4. Highways and Streets--closing--action to stop--statute of
limitations
A motion for judgment on the pleadings for defendant was
properly granted in an action seeking to stop the closing of a
street where the action was filed more than thirty days after the
adoption of an ordinance purporting to close the disputed strip
of land and is barred by the statute of limitations of N.C.G.S. §
160A-299(b).
The Frue Law Firm, P.A., by William C. Frue, Jr. and Michael
C. Frue, for the plaintiff-appellant.
McGuire, Wood & Bissette, P.A., by Grant B. Osborne, for the
defendant-appellee Community Housing Corporation of Haywood
County.
Brown, Queen, Patten & Jenkins, PA, by Frank G. Queen, and
Brown, Ward & Haynes, P.A., by Michael L. Bonfoey, for the
defendant-appellee Town of Waynesville.
WYNN, Judge.
The plaintiff brought this action under the North Carolina
Uniform Declaratory Judgment Act, N.C. Gen. Stat. §§ 1-253 et seq.
(1996), to contest the validity of a proceeding to close a thirty-
foot wide strip of land adjacent to her property located in
Waynesville. The defendant Community Housing Corporation of
Haywood County claims title to property adjacent to plaintiff's
property, including a portion of the disputed thirty-foot wide
strip of land.
The complaint filed on 13 November 1998 alleges that on 14
July 1997, defendant Town of Waynesville attempted to close a
portion of said strip of land, a purported street, by passing anordinance pursuant to N.C. Gen. Stat. § 160A-299 (1994). The
complaint alleges that plaintiff has a property right amounting to
a private easement in the strip of land, and that she was not
provided the required notice of Waynesville's intent to close the
property to which she was entitled by law. The complaint further
alleges that Waynesville acted improperly in purporting to close
the strip of land, and in doing so Waynesville “purported to
deprive Plaintiff of her right of access and use of the private
easement adjoining her property” in a manner violative of
plaintiff's property rights and her right to due process. The
plaintiff further claims possession of a “permanent easement of
right of way by estoppel” superior to the fee simple rights of the
owner of the property.
Waynesville filed a Motion to Dismiss and Answer on 31
December 1998, wherein it asserted the complaint failed to state a
claim upon which relief can be granted, and asserted the statute of
limitations as an affirmative defense. Community Housing
Corporation filed an answer in which it also asserted a Rule
12(b)(6) motion to dismiss for failure to state a claim. Community
Housing Corporation subsequently filed a motion for summary
judgment dated 28 September 1999, which motion was heard on 11
October 1999. The trial court entered an order of summary judgment
on 18 October 1999 in favor of Community Housing Corporation. On
26 October 1999, the trial court entered an order purporting to
grant summary judgment in favor of Waynesville. From these two
orders, the plaintiff appeals. [1]We first consider Community Housing Corporation's motion,
filed 31 July 2000, to dismiss the plaintiff's appeal, based upon
her failure to comply with our Rules of Appellate Procedure.
The plaintiff filed a notice of appeal on 9 November 1999. On
5 January 2000, plaintiff served defendants with a proposed record
on appeal, to which Community Housing Corporation filed certain
objections. The plaintiff, on 2 February 2000, timely served by
mail a request to settle the record on appeal; this request was
sent to both defendants and to Judge Zoro J. Guice, Jr., and was
filed in the Superior Court, Haywood County on 2 February 2000.
Thirty days later, on 3 March 2000, plaintiff filed a notice
of hearing on her request to settle the record on appeal, advising
that the hearing to settle the record would be conducted on 17
March 2000. On 17 March 2000, Judge Guice signed an order
purporting to extend the time to settle the record on appeal; no
filing stamp appears on this order. It appears as though the trial
court conducted a hearing to settle the record on appeal on 17
March 2000, following which the court, on 28 March 2000, filed an
order settling the record on appeal. Fifteen days thereafter, on
12 April 2000, the record on appeal was filed with this Court.
The Rules of Appellate Procedure are mandatory, and failure to
follow them will subject an appeal to dismissal. See May v. City
of Durham, 136 N.C. App. 578, 525 S.E.2d 223 (2000); Bledsoe v.
County of Wilkes, 135 N.C. App. 124, 519 S.E.2d 316 (1999);
Steingress v. Steingress, 350 N.C. 64, 511 S.E.2d 298 (1999). “Therules are designed to keep the process of perfecting an appe
al
flowing in an orderly manner.” Pollock v. Parnell, 126 N.C. App.
358, 361, 484 S.E.2d 864, 866 (1997). Only those who properly
appeal from judgments and orders of the trial court are entitled to
relief in the appellate division. See Craver v. Craver, 298 N.C.
231, 258 S.E.2d 361 (1979). Furthermore, it is the appellant who
“bears the burden of seeing that the record on appeal is properly
settled and filed with this Court.” McLeod v. Faust, 92 N.C. App.
370, 371, 374 S.E.2d 417, 418 (1988); see Webb v. McKeel, 132 N.C.
App. 816, 817, 513 S.E.2d 596, 597 (1999).
N.C.R. App. P. 11 (2001) states that, following service upon
the trial judge of a written request to settle the record on
appeal:
The judge shall send written notice to counsel
for all parties setting a place and a time for
a hearing to settle the record on appeal. The
hearing shall be held not later than 15 days
after service of the request for hearing upon
the judge. The judge shall settle the record
on appeal by order entered not more than 20
days after service of the request for hearing
upon the judge.
N.C.R. App. P. 11(c). Here, the plaintiff served a request to
settle the record upon Judge Guice on 2 February 2000; pursuant to
Rule 11(c), a hearing to settle the record should have been held no
later than 17 February 2000, and the record should have settled no
later than 22 February 2000.
N.C.R. App. P. 27 (2001), which concerns the computation and
extension of time under the Rules of Appellate Procedure, providesthat, where service is effected by mail, the party required to act
within a prescribed period after service thereon shall be allowed
an additional three days within which to act. See N.C.R. App. P.
27(b). Accordingly, the hearing on the settling of the record
should have occurred no later than 21 February 2000 (as 20 February
was a Sunday), and the order settling the record must have been
entered no later than 25 February 2000.
Additionally, Rule 11(f) provides for extensions of time
pursuant to Rule 27(c). See N.C.R. App. P. 11(f); N.C.R. App. P.
27(c). Rule 27(c) provides that the trial court may, upon motion
and for good cause shown, extend any of the times prescribed by the
Rules “for doing any act required or allowed” under the Rules.
N.C.R. App. P. 27(c). However, the trial court may only consider
motions to extend “the time permitted by Rule 11 or Rule 18 for the
service of the proposed record on appeal.” N.C.R. App. P.
27(c)(1). All other motions for extensions of time “may only be
made to the appellate court to which appeal has been taken.”
N.C.R. App. P. 27(c)(2).
In the instant case, the plaintiff presented no motion, either
to the trial court or to this Court, seeking an extension of the
time permitted under Rule 11(c) for holding a hearing to settle the
record, and for entry of an order settling the record on appeal.
Although the record indicates that no such request was ever made,
the trial court nonetheless entered an order dated 17 March 2000,
which does not appear to have been filed, purporting to extend the
time for settling the record on appeal. We note that this orderwas not timely, and in any event is of no help to plaintiff because
it exceeded the authority vested in the trial court to grant
extensions. See N.C.R. App. P. 27(c)(2). As plaintiff failed to
obtain a proper extension of time pursuant to Rule 27, the hearing
held by the trial court to settle the record, and the order filed
on 28 March 2000 settling the record, were not timely, and thus
violated Rule 11(c). See N.C.R. App. P. 11(c).
Nonetheless, we exercise our discretion pursuant to Rule 2 to
suspend the Rules, permitting us to consider the merits of
plaintiff's appeal. See N.C.R. App. P. 2 (2001); Onslow County v.
Moore, 127 N.C. App. 546, 491 S.E.2d 670 (1997), disc. review
allowed, decision vacated and remanded for consideration on the
merits, 347 N.C. 672, 500 S.E.2d 88 (1998). Accordingly, Community
Housing Corporation's motion to dismiss the appeal is hereby
denied.
[2]The plaintiff does not set forth any assignments of error
in the record on appeal; however, such assignments are not required
where the question presented is whether summary judgment was
properly granted. See N.C.R. App. P. 10 (2001); Vernon, Vernon,
Wooten, Brown & Andrews v. Miller, 73 N.C. App. 295, 326 S.E.2d 316
(1985); Ellis v. Williams, 319 N.C. 413, 355 S.E.2d 479 (1987).
The issues presented to this Court are: (1) Whether there exists a
genuine issue of material fact; and (2) Whether the moving party is
entitled to judgment as a matter of law. See Miller; Ellis; seealso N.C. Gen. Stat. § 1A-1, Rule 56 (2000). We therefo
re consider
plaintiff's appeal as to the orders entered against her in favor of
each defendant.
[3]As to Community Housing Corporation, plaintiff's complaint
seeks a temporary injunction preventing construction on the
disputed thirty-foot wide strip of land. The issuance of this
injunction is contingent on the outcome of plaintiff's declaratory
judgment action against Waynesville.
The trial court's 26 October 1999 order purporting to grant
summary judgment in favor of Waynesville states in relevant part
that it is based upon Waynesville's motion:
raised in open court for dismissal based on
[the Town of Waynesville's] motion to dismiss
and affirmative defense. The plaintiff did
not object to defendant Town of Waynesville's
motion and the court treats the defendant Town
of Waynesville's motion as a motion for
summary judgment. It appears to the Court
that there is no genuine issue as to any
material fact and that the defendant, Town of
Waynesville, is entitled to judgment as a
matter of law.
The trial court therefore purports to grant summary judgment in
favor of Waynesville, and states that “this action is dismissed
with prejudice with the costs to be taxed to the plaintiff.”
In its 18 October 1999 order of summary judgment in favor of
Community Housing, the trial court states that it considered all
submissions made by plaintiff and defendants, as well as arguments
of counsel made in open court, and concluded that “there is no
genuine issue as to any material fact as shown by the pleadings and
the plaintiff's answers to interrogatories.” We note that therecord contains no interrogatories or responses thereto, nor has
the appellant submitted a transcript of the 11 October 1999
hearing. Our review is therefore limited to the parties' pleadings
as included in the record on appeal.
In her complaint, plaintiff sought the following relief:
1. That the Court declare that the rights of
Plaintiff to the use and enjoyment of the
Street purportedly closed by [the] Ordinance
are superior to any rights acquired by the
Defendant “Community Housing” by Deed recorded
in Deed Book 467 at Page 1106, Haywood County,
N.C. Registry.
2. That the Court declare that the Defendant
“Town” failed to give Plaintiff notice of its
intention to close the 30-foot street adjacent
to her property as required by law rendering
the passage of Ordinance #9-97 purportedly
closing such street unlawful and to declare
same null and void having failed to comply
with the notice requirements of N.C.G.S. 160-
A-299.
3. That the Court declare that the
description of the strip of land the Town
purports to close in Ordinance #9-97 is
ambiguous and uncertain and therefore void to
give record notice as required by the laws of
the State of North Carolina; that the Court
declare said Ordinance to be a nullity.
4. That the Plaintiff has heretofore enjoyed
a private easement by estoppel in said 30-foot
strip known as New Street along with her
predecessors in title for at least 80 years;
that the public has never acquired an interest
in said street nor used nor maintained same;
that a municipality cannot utilize the
provisions of N.C.G.S. 160A-299 et seq. to
close streets or roadways in which the public
has never held an interest; that Ordinance #9-
97 is therefore a nullity as a matter of law.
5. That a temporary injunction issue against
the Defendant “Community Housing” preventing
the construction of any building on any
portion of the 30-foot street located withinthe property described in Deed Book 467 at
Page 1106, Haywood County, N.C. Registry.
Waynesville responded by filing a “Motion to Dismiss and Answer,”
wherein it admits that an ordinance was passed closing a portion of
a street adjacent to plaintiff's property. However, Waynesville
moved the court “pursuant to Rule 12(b) of the Rules of Civil
Procedure to dismiss the . . . action for failure of the complaint
to state a claim upon which relief can be granted,” and alleged
that plaintiff's actions are barred by the applicable statute of
limitations. We agree.
In her brief on appeal, plaintiff argues that the trial court
erred in granting Waynesville summary judgment, as no motion for
summary judgment was properly before the court. The plaintiff
contends that she did not receive the required ten days' notice
pursuant to N.C. Gen. Stat. § 1A-1, Rule 56. See N.C. Gen. Stat.
§ 1A-1, Rule 56(c) (requiring a party moving for summary judgment
to serve the motion “at least 10 days before the time fixed for the
hearing” thereon). Because we conclude that the trial court's
action constituted a judgment on the pleadings pursuant to Rule 12,
rather than a summary judgment pursuant to Rule 56, we find no
error.
The trial court denominated its order an “Order of Summary
Judgment For The Town of Waynesville.” However, where “the record
on appeal contains no affidavits, answers to interrogatories, or
anything else other than the pleadings upon which to base the
decision, the court's entry of judgment will be deemed to have beenmade” pursuant to a motion to dismiss under Rule 12. Town of
Bladenboro v. McKeithan, 44 N.C. App. 459, 460, 261 S.E.2d 260,
261, appeal dismissed, 300 N.C. 202, 282 S.E.2d 228 (1980) (citing
Reichler v. Tillman, 21 N.C. App. 38, 203 S.E.2d 68 (1974)); see
N.C. Gen. Stat. § 1A-1, Rule 12 (2000); Burton v. Kenyon, 46 N.C.
App. 309, 264 S.E.2d 808 (1980); Adams v. Moore, 96 N.C. App. 359,
385 S.E.2d 799 (1989), disc. review denied, 326 N.C. 46, 389 S.E.2d
83 (1990); Johnson v. Ruark Obstetrics and Gynecology Assocs., 327
N.C. 283, 395 S.E.2d 85 (1990).
Indeed, the trial court's order provides that the cause was
heard “on motion of defendant, Town of Waynesville, raised in open
court for dismissal based on the defendant's motion to dismiss and
affirmative defense.” Furthermore, the record on appeal contains
no affidavits, answers to interrogatories, or transcripts of
arguments by counsel. Accordingly, we treat the court's entry of
judgment in favor of the Town as having been made pursuant to a
Rule 12(c) motion for judgment on the pleadings. See Burton;
Johnson. As such, the plaintiff was not entitled to the ten days'
notice as required pursuant to Rule 56(c) on a motion for summary
judgment.
A Rule 12(b)(6) motion to dismiss for failure to state a claim
upon which relief can be granted must be made in the movant's
responsive pleading, or by motion prior to filing a responsive
pleading. See N.C. Gen. Stat. § 1A-1, Rule 12(b)(6). A Rule 12(c)motion for judgment on the pleadings must be made “[a]f
ter the
pleadings are closed but within such time as not to delay the
trial.” N.C. Gen. Stat. § 1A-1, Rule 12(c). Waynesville's Rule
12(b)(6) motion to dismiss was included in its responsive pleading;
according to the trial court's order, Waynesville made an
additional motion in open court “based on the [Town of
Waynesville's] motion to dismiss and affirmative defense.” The
plaintiff does not contend that these Rule 12 motions were
untimely.
[4]The question presented, therefore, is whether
Waynesville's motion for judgment on the pleadings was properly
granted by the trial court. A Rule 12(c) motion should be granted
only when “the movant clearly establishes that no material issue of
fact remains to be resolved and that the movant is entitled to
judgment as a matter of law.” Minor v. Minor, 70 N.C. App. 76, 78,
318 S.E.2d 865, 867, disc. review denied, 312 N.C. 495, 322 S.E.2d
558 (1984).
Judgment on the pleadings, pursuant to Rule
12(c), is appropriate “'when all the material
allegations of fact are admitted in the
pleadings and only questions of law remain.'”
[Bladenboro, 44 N.C. App. at 460, 261 S.E.2d
at 261] (quoting Ragsdale [v. Kennedy], 286
N.C. [130,] 136-37, 209 S.E.2d [494,] 499
[(1974)]). The trial court must “'view the
facts and permissible inferences in the light
most favorable to the non-moving party[],'”
taking all well-pleaded factual allegations in
the non-moving party's pleadings as true. Id.
at 461, 261 S.E.2d at 262 (quoting Ragsdale,
286 N.C. at 136-37, 209 S.E.2d at 499).
When ruling on a motion for judgment on thepleadings, the trial court “is to consider
only the pleadings and any attached exhibits,
which become part of the pleadings.” Minor v.
Minor, 70 N.C. App. 76, 78, 318 S.E.2d 865,
867, disc. review denied, 312 N.C. 495, 322
S.E.2d 558 (1984).
Terrell v. Lawyers Mut. Liab. Ins. Co., 131 N.C. App. 655, 659-660,
507 S.E.2d 923, 926 (1998).
Judgments on the pleadings are disfavored in law, and the
trial court must view the facts and permissible inferences in the
light most favorable to the non-moving party. Flexolite Elec.,
Ltd. v. Gilliam, 55 N.C. App. 86, 88, 284 S.E.2d 523, 524 (1981).
“A judgment on the pleadings in favor of a defendant who asserts
the statute of limitations as a bar is proper when, and only when,
all the facts necessary to establish the limitation are alleged or
admitted.” Id. at 87-88, 284 S.E.2d at 524. In such an instance,
the plaintiff bears the burden of showing that her claim is not
barred on the face of the complaint. Id. at 88, 284 S.E.2d at 524.
A judgment on the pleadings may be appropriate in an action for
declaratory relief, where the record shows there is no basis for
such relief. See Kirkman v. Kirkman, 42 N.C. App. 173, 256 S.E.2d
264, disc. review denied, 298 N.C. 297, 259 S.E.2d 300 (1979); N.C.
Gen. Stat. § 1-253.
In the instant case, the complaint states that the ordinance
purporting to close the thirty-foot strip of land was passed by
Waynesville on 14 July 1997, having been adopted on 24 March 1997.
The complaint seeking declaratory judgment was dated 13 November1998. The statute under which Waynesville purported to close the
street, N.C. Gen. Stat. § 160A-299, provides as follows:
Any person aggrieved by the closing of any
street or alley . . . may appeal the council's
order to the General Court of Justice within
30 days of its adoption.
. . .
No cause of action or defense founded upon the
invalidity of any proceedings taken in closing
any street or alley may be asserted, nor shall
the validity of the order be open to question
in any court upon any ground whatever, except
in an action or proceeding begun within 30
days after the order is adopted.
N.C. Gen. Stat. § 160A-299(b) (emphasis added). As the complaint
was filed more than thirty days after the adoption of the ordinance
purporting to close the disputed strip of land, plaintiff's action
is barred by the statute of limitations. Accordingly, the trial
court committed no error in dismissing plaintiff's cause of action
against Waynesville with prejudice. Furthermore, as the trial
court properly dismissed the cause of action against Waynesville,
the court also committed no error in granting summary judgment to
Community Housing Corporation, as plaintiff's cause of action
against Community Housing Corporation was contingent upon her claim
against Waynesville.
Affirmed.
Judges McGEE and BIGGS concur.
*** Converted from WordPerfect ***