Appeal by plaintiffs from order entered 23 October 1999 by
Judge James F. Ammons, Jr., in Lee County Superior Court. Heard in
the Court of Appeals 8 January 2001.
Law Office of Fred D. Webb, Jr., by Fred D. Webb, Jr., for
plaintiff-appellants.
City Attorney Susan C. Patterson for defendant-appellee.
SMITH, Judge.
This appeal arises from the trial court's order dissolving a
Temporary Restraining Order and allowing defendant City of
Sanford's (the City) motion to dismiss. We affirm.
In August 1997, the City's Code Enforcement Officer received
a complaint of substantial building code violations at an apartment
house located at 400/402 South Steele Street (the property), which
is owned by, among others, plaintiff W. Harvey Knotts, Sr. (Mr.
Knotts). After investigating the complaint, the City ordered the
residents to vacate the property and scheduled a hearing regarding
the violations. The hearing was held on 25 August 1997 and was
attended by Mr. Knotts. Following the hearing, an order was issued
finding the property to be
in such a dilapidated and substandard state of
disrepair that it constitutes a fire or safety
hazard and is dangerous to life, health, and
other property in the immediate vicinity, and
is in such a condition as to constitute a
public nuisance . . . .
Mr. Knotts was ordered to repair or demolish the structure within
ninety days, establishing a deadline of 25 November 1997. Mr.
Knotts failed to comply, and on 10 December 1997, the City notified
Mr. Knotts that, because of noncompliance, the City was
"refer[ring] this matter to the City Council, requesting [] an
order to proceed with the demolition of this property." On 16
December 1997, the City passed "An Ordinance Directing the Building
Inspector/Code Enforcement Officer to Repair or Demolish the
Property Herein Described as Unfit for Human Habitation." On or around 15 January 1998, in an action numbered 9
8 CVS
00046, Mr. Knotts sought a Temporary Restraining Order (TRO),
Preliminary Injunction, and additional time to repair the building.
The trial court granted the TRO, and on 29 January 1998, the City
filed a motion to dissolve the TRO and to dismiss the complaint.
The motion was heard on 2 February 1998, at which time the parties
entered a Consent Order, which required the following:
1. That plaintiff shall present to
defendant a complete set of sealed plans to
correct all minimum housing code violations in
accordance with the North Carolina State
Building Code from an architect or engineer
and a signed contract with a construction time
table from a licensed general contractor on or
before March 4, 1998;
2. That plaintiff shall have all repair
work or demolition completed in accordance
with the North Carolina State Building Code
and a certificate of occupancy issued on the
said property by June 30, 1998;
3. That defendant shall award completed
bids for demolition of the said property and
proceed to have the property demolished if
plaintiff fails to meet the requirements of
"1" or "2" of this Order hereinabove and
plaintiff shall file a voluntary dismissal
with prejudice in this matter.
4. That defendant shall issue a
licensed contractor employed by plaintiff a
building permit in accordance with City of
Sanford permit application process upon
plaintiff providing defendant with a complete
set of sealed plans and a signed construction
contract from a licensed general contractor
with construction timetables as provided in
paragraph one (1) of this Order.
Mr. Knotts failed to comply with the Consent Order, and the City
again proceeded with demolition.
On 23 March 1998, Mr. Knotts filed a Motion for Relief from
the Consent Order based on mistake, inadvertence, and excusableneglect. The matter was heard on 30 November 1998, and on 3
December 1998, the trial court denied Mr. Knotts' motion and
ordered the City to proceed with demolition. Mr. Knotts appealed
to this Court, but after first filing an unsettled record and then
tardily filing a corrected record, this Court allowed the City's
Motion to Dismiss Mr. Knotts' appeal.
Because the bids to demolish the property had expired, on 20
July 1999, the City Council awarded a re-bid to Kitts Grading.
After sending notice to Mr. Knotts and allowing him the opportunity
to demolish the structure, a contract was signed to begin
demolition on 3 August 1999.
On 26 July 1999, Mr. Knotts and his daughter, plaintiff Lula
Knotts-Thomas (Ms. Thomas), filed a complaint in the instant action
seeking a TRO, preliminary injunction, and compensation for the
alleged taking of the property. On 2 August 1999 (filed 3 August),
the trial court granted the TRO and scheduled a hearing on the
request for preliminary injunction for 3 August 1999. On 3 August,
the City filed a motion to dismiss on the grounds of lack of
subject matter jurisdiction, res judicata, improper purpose in
filing the action, failure to join necessary parties, failure to
state a claim upon which relief can be granted, and irreparable
harm to the citizens of the City. On 21 October 1999, the trial
court dissolved the TRO, allowed the City's motion to dismiss, and
stayed the demolition of the property pending appeal to this Court.
From the order of dismissal, plaintiffs appeal.
Initially, we note that plaintiffs have failed to comply with
the Rules of Appellate Procedure in several respects. First, theassignments of error in the record on appeal fail to make reference
to the record page numbers where we may find the alleged error.
See N.C. R. App. P. 10(c)(1) (Assignments of error must contain
"clear and specific record or transcript references."). Second,
the majority of the facts set forth in plaintiffs' brief are
unaccompanied by references to the record and/or transcript in
violation of N.C. R. App. P. 28(b)(4) (The statement of facts
should be "supported by references to pages in the transcript of
proceedings, the record on appeal, or exhibits, as the case may
be."). Finally, plaintiffs' arguments in the body of their brief
are not followed by references to the assignments of error in
violation of N.C. R. App. P. 28(b)(5) ("Immediately following each
question [presented] shall be a reference to the assignments of
error pertinent to the question, identified by their numbers and by
the pages at which they appear in the printed record on appeal.").
Our rules of appellate procedure are mandatory, and failure to
comply therewith subjects an appeal to dismissal. See Bledsoe v.
County of Wilkes, 135 N.C. App. 124, 125, 519 S.E.2d 316, 317
(1999) (per curiam) (dismissing appeal for appellate rules
violations). Nonetheless, pursuant to N.C. R. App. P. 2, we have
exercised our discretionary power and reached the merits of
plaintiffs' appeal.
I.
[1]Plaintiffs first contend "[t]he [trial] [c]ourt erred in
dismissing Plaintiff's [sic] Temporary Restraining Order." Their
argument on appeal, however, focuses solely on the trial court'srefusal to award plaintiffs a preliminary injunction. As
plaintiffs failed to assign error to the trial court's refusal to
grant plaintiffs' request for preliminary injunction, we will not
entertain this argument on appeal.
Under N.C. Gen. Stat. § 1A-1, Rule 65(b) (1999), a TRO is a
temporary measure that is in place only until a hearing can be held
on a preliminary injunction and is properly dissolved if the
preliminary injunction is not granted. Accordingly, plaintiffs'
argument is without merit, and this assignment of error is
overruled.
II.
[2]Plaintiffs next contend the trial court erred in granting
the City's motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1,
Rule 12(b)(6) (1999) (failure to state a claim upon which relief
may be granted). Plaintiffs contend this was error because "the
complaint affirmatively alleges a taking in violation of the
Plaintiff's [sic] constitutional rights without just compensation."
However, the trial court granted the City's motion based on
res
judicata, lack of subject matter jurisdiction, and Rule 12(b)(6),
and plaintiffs have failed to assign error to the trial court's
grant of the City's motion on the grounds of either
res judicata or
lack of subject matter jurisdiction. Accordingly, even if we were
to find error in the trial court's dismissal based upon Rule
12(b)(6), which we expressly decline to do,
see Harrell v. City of
Winston-Salem, 22 N.C. App. 386, 392, 206 S.E.2d 802, 806 (1974)
(stating that the city's police power, which has been delegated bythe State, permits the prohibition of use of private property that
may threaten the public health, safety, or morals or the general
welfare and, when so exercised, the owner need not be compensated,
even though the property is thereby rendered substantially
worthless), the trial court's order dismissing plaintiffs'
complaint would still stand on the alternative grounds.
For instance, "[u]nder the doctrine of res judicata, 'a final
judgment on the merits in a prior action will prevent a second suit
based on the same cause of action between the same parties or those
in privity with them' if all relevant and material matters, in the
exercise of reasonable diligence of the parties, could and should
have been brought forward."
McGowan v. Argo Travel, Inc., 131 N.C.
App. 694, 695, 507 S.E.2d 601, 601 (1998) (citations omitted).
Because this case presents the same issues (or those that could
have been raised) between the same parties or their privies as were
finally decided in the previous case, the trial court properly
dismissed plaintiffs' complaint on
res judicata grounds.
Accordingly, this assignment of error is overruled.
III.
[3]Finally, plaintiffs assign error to "[t]he [c]ourt's
hearing of defendant's motion to [d]ismiss the Complaint pursuant
to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure
without proper [n]otice under Rule 6(d) of the North Carolina Rules
of Civil Procedure." They thus argue that the trial court's
decision to dismiss their complaint was reversible error. We
disagree.
Initially, we note that plaintiffs' argument in their briefrelates
not to N.C. Gen. Stat. § 1A-1,
Rule 6(d) (1999), as is
specifically set forth in plaintiffs' assignments of error, but to
N.C. Gen. Stat. § 1A-1, Rule 56 (1999). The time limitations in
the two rules are substantially different. As notice pursuant to
Rule 56 was not made the basis of an assignment of error, this
argument is not properly presented for review.
Nonetheless, plaintiffs have waived notice in this matter. In
Raintree Corp. v. Rowe, this Court faced a similar situation and
stated:
At the hearing on the motions to dismiss,
plaintiff stipulated to the use of documents
outside the pleadings, participated in oral
arguments, entered into a stipulation of
facts, and responded in writing. Plaintiff
did not make a timely objection to the hearing
on 15 September 1977. Plaintiff did not
request a continuance. Plaintiff did not
request additional time to produce evidence
pursuant to Rule 56(f). On the contrary,
plaintiff participated in the hearing through
counsel. The 10-day notice required by Rule
56 can be waived by a party.
Story v. Story,
27 N.C. App. 349, 219 S.E.2d 245 (1975). The
notice required by this rule is procedural
notice as distinguished from constitutional
notice required by the law of the land and due
process of law. By attending the hearing of
the motion on 15 September 1977 and
participating in it and failing to request a
continuance or additional time to produce
evidence, plaintiff waived any procedural
notice required.
38 N.C. App. 664, 667-68, 248 S.E.2d 904, 907 (1978);
see also
Richland Run Homeowners Assn. v. CHC Durham Corp., 123 N.C. App.
345, 347, 473 S.E.2d 649, 651 (1996) ("[B]y attending and
participating in the hearing without objection or without
requesting a continuance, plaintiff waived any right to object tothe summary judgment hearing on the ground of lack of notice."),
rev'd per curiam on other grounds, 346 N.C. 170, 484 S.E.2d 527
(1997).
In the case at bar, contrary to the assertion made by the
dissent, plaintiffs participated in the hearing on the City's
motion. First, their counsel argued that they need not have
exhausted any administrative remedies. Next, they argued that the
present case was distinguishable from the prior filing, thus
precluding application of
res judicata. They also argued the
merits of their case.
Likewise, plaintiffs' counsel never objected to the lack of
notice, nor did counsel request a continuance on the hearing. The
extent of the discussion regarding lack of notice is as follows:
[PLAINTIFFS' COUNSEL:] And you cannot dismiss
a complaint whenever we haven't gone through
discovery. We haven't done anything,
prepared, no answer's been filed, res
judicata, collateral estoppel, all those are
matters that have to be pled, not put in
motion when you get them today and you hear
them tomorrow. And so basically what -- the
matter pending and the answer not being filed,
and I think it certainly would be inadvertent
to dismiss anything as it relates to the --
particularly to the complaint itself.
[THE COURT:] Well, you're not saying that she
has to file an answer before I can consider
either summary judgment or 12(b)(6), are you?
[PLAINTIFFS' COUNSEL:] No, but she has to
put us on proper notice for summary judgment
and 12(b)(6).
. . . .
. . . I got the motion this morning,
Judge. I mean, I got the motion this morning.
While there was discussion of lack of notice, counsel forplaintiffs neither objected, moved for a continuance, nor requested
additional time to produce evidence. Accordingly, we hold that
plaintiffs have waived the notice requirement.
Notwithstanding plaintiffs' waiver of notice, N.C. Gen. Stat.
§ 1A-1, Rule 6(d) (1999) provides in pertinent part that "A written
motion, other than one which may be heard ex parte, and notice of
the hearing thereof shall be served not later than five days before
the time specified for the hearing,
unless a different period is
fixed by these rules or by order of the court." (Emphasis added.)
In the trial court's order dismissing plaintiffs' complaint, it
stated in its findings of fact:
[T]his is an action upon Plaintiffs [sic]
request for a Temporary Restraining Order and
Preliminary Injunction, and a Complaint for an
alleged taking without compensation; and
Defendants [sic] Motion to Dismiss.
. . . .
17.
(Emphasis added.) As finding 17 was not challenged on appeal, it
is conclusive.
See Rite Color Chemical Co. v. Velvet Textile Co.,
105 N.C. App. 14, 22, 411 S.E.2d 645, 650 (1992). As this finding
indicates that "a different period [was] fixed . . . by order of
the court," N.C. Gen. Stat. § 1A-1, Rule 6(d), there can be no
violation of the Rule 6(d) notice requirements.
For the reasons stated hereinabove, we affirm the trial
court's order. Affirmed.
Chief Judge EAGLES concurs.
Judge HUDSON concurs in part and dissents in part.
================================
HUDSON, Judge, concurring in part and dissenting in part.
I concur with the majority's analysis of issues I and II.
However, I believe that plaintiffs were entitled to notice of the
hearing on the motion to dismiss, pursuant to Rules 12(b) and 6(d).
See N.C.R. Civ. P. 12(b) and 6(d). Accordingly, I would reverse
the trial court's order and remand for a hearing on the motion to
dismiss.
Defendant's motion to dismiss was filed on 3 August 1999, and
served on plaintiffs' counsel by hand on 4 August 1999, the day on
which a hearing had been scheduled to address plaintiffs' request
for a preliminary injunction. At the appointed time, the parties
appeared for the scheduled hearing. Plaintiffs' counsel
participated in the hearing and discussed the issues of
res
judicata and exhaustion of administrative remedies, but such
participation and discussion occurred only within the context of
addressing the preliminary injunction.
After hearing from the parties on the request for injunction,
the court shifted the discussion to defendant's motion to dismiss.
At that time, plaintiffs' counsel immediately pointed out that
notice had not been properly given for a motion to dismiss or for
a motion for summary judgment, pursuant to Rule 12(b). The
comments of plaintiffs' counsel quoted by the majority were, in my
view, sufficient to communicate an objection to the lack of notice. Despite counsel's contention that notice had not been properly
given, the court proceeded to enter two orders: one denying the
request for preliminary injunction, and one allowing the motion to
dismiss. Unlike the plaintiff in
Raintree Corp. v. Rowe, 38 N.C.
App. 664, 248 S.E.2d 904 (1978), a case cited by the majority,
plaintiffs in the instant case did not stipulate to any documents,
and were not given an opportunity to argue the merits of the motion
to dismiss.
In my view, the circumstances in the case at bar constitute a
violation of the specific terms of Rules 12(b) and 6(d), both of
which are cited in plaintiffs' third assignment of error, and in
Argument III of plaintiffs' brief. First, Rule 12(b) states, in
pertinent part:
If, on a motion asserting the defense numbered
(6), to dismiss for failure of the pleading to
state a claim upon which relief can be
granted, matters outside the pleading are
presented to and not excluded by the court,
the motion shall be treated as one for summary
judgment and disposed of as provided in Rule
56, and all parties shall be given reasonable
opportunity to present all material made
pertinent to such a motion by Rule 56.
N.C.R. Civ. P. 12(b). The motion in the instant case was filed
with numerous attachments, including affidavits and other documents
which were outside of the pleading and which were not excluded by
the court. Rule 12(b) requires that such a motion be treated as a
motion for summary judgment.
See, e.g., Stanback v. Stanback, 297
N.C. 181, 254 S.E.2d 611 (1979).
This Court has consistently held that “Rule 12(b) clearly
contemplates the case where a party is 'surprised' by the treatmentof a Rule 12(b)(6) motion as one for summary judgment,” and that,
in such cases, Rule 12(b) “affords such a party a reasonable
opportunity to oppose the motion with . . . materials made
pertinent to such a motion.”
Locus v. Fayetteville State
University, 102 N.C. App. 522, 528, 402 S.E.2d 862, 866 (1991);
see
also Raintree Homeowners Assoc. v. Raintree Corp., 62 N.C. App.
668, 673, 303 S.E.2d 579, 582,
disc. review denied, 309 N.C. 462,
307 S.E.2d 366 (1983) (“It is significant that the rule provides a
'reasonable opportunity' rather than requiring that the
presentation of materials be in accordance with Rule 56.”).
Plaintiffs were essentially deprived of an opportunity to address
the merits of defendant's motion. Therefore, I believe we should
remand so that plaintiffs have a “reasonable opportunity to present
all material made pertinent” to the motion.
Furthermore, even if it were not necessary to treat the motion
to dismiss as a motion for summary judgment pursuant to Rule 12(b),
the lack of notice in the instant case would still violate Rule
6(d), which requires that “[a] written motion . . . and notice of
the hearing thereof shall be served not later than five days before
the time specified for the hearing, unless a different period is
fixed by these rules or by order of the court.” N.C.R. Civ. P.
6(d). Here, the motion to dismiss was served on the same day as
the hearing to address the motion, and there is nothing in the
record to indicate that a different notice period was “fixed . . .
by order of the court.” Rather, it appears from the transcript
that plaintiffs' counsel had no notice that the motion to dismiss
would be addressed on that day. The majority states that theOrder, which was entered 21 October 1999 - more than two months
after the date of the hearing - “fixed” a different notice period.
I do not believe that the Rule contemplates that the notice period
may be shortened by an order entered after the fact. Such an
interpretation would conflict with the very definition of the word
“notice” by allowing a dismissal on the merits where the non-moving
party has, in fact, no meaningful notice at all.
By conducting a hearing on defendant's motion to dismiss on
the same day that the motion was served on plaintiffs' counsel, the
court deprived plaintiffs of the opportunity to produce materials
relevant to the motion, and to defend against the motion. The
notice requirements in Rules 12(b) and 6(d) are mandatory and
should not be ignored, especially where, as in the instance case,
the impact of ignoring the requirements is dispositive. I would
reverse and remand to allow plaintiffs an opportunity to respond to
defendant's motion to dismiss.
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