An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-748


Filed: 1 July 2003


v .                         Haywood County
                            No. 01 CVD 592

    Appeal by defendants from an order entered 27 June 2001 by Judge Danny E. Davis, an order entered 28 August 2001 by Judge Bradley B. Letts, and orders entered 21 December 2001 by Judge Richlyn D. Holt, all in Haywood County District Court. Heard in the Court of Appeals 15 April 2003.

    Killian, Kersten, Patton & Kirkpatrick, P.A., by Larry T. Reida, for plaintiff-appellee.

    Robert Stanley Plimpton, pro se and for defendant-appellant.

    STEELMAN, Judge.

    At the time this action was initiated, defendant, The Office of the First Presiding Patriarch (Overseer), for East Fork Ministries and Successors, a Corporation (“East Fork”), was a corporation organized under the laws of the State of Washington and qualified to do business in North Carolina. Defendant Robert Stanley Plimpton (“Plimpton”) served as the Overseer of East Fork. Plimpton filed articles of dissolution for East Fork in March 2001.
    On 2 February 1998, defendants purchased 193 acres in East Fork Township, Haywood County by a general warranty deed naming “ROBERT STANLEY PLIMPTON, Overseer of THE EAST FORK MINISTRIES” as grantee. On 10 February 1998, “ROBERT STANLEY PLIMPTON, Overseer of THE EAST FORK MINISTRIES” conveyed the property to “Robert Stanley Plimpton, Overseer of THE EAST FORK MINISTRIES” by a general warranty deed.
    Several structures were erected on the property, known as Heavenly Ranch, including a large enclosed hall, apartments and dormitories. Septic systems to serve these structures also were installed. No application was submitted to Haywood County for permits required under State and County laws to erect the structures and to install the wastewater system on the Heavenly Ranch property.
    In a letter to Jack Horton, Haywood County Manager, dated 10 April 1998, Plimpton notified plaintiff of East Fork's intention to build structures and use Heavenly Ranch as a Christian retreat and requested
        a Certified copy, under the original seal of the State of North Carolina of any alleged statute, code, rule, regulation or other alleged document which purports to give Haywood [C]ounty authority, control over, or allow interference with, our enjoying our natural, God-given, unalienable, Constitutionally protected Right to life, LIBERTY and the pursuit of happiness, or

        In the alternative, provide same, Certified under the original organic seal of Haywood [C]ounty....
The letter also stated that if defendants did not receive such documentation within ten days of the date of the letter's receipt, defendants would assume that no such authority existed and would proceed accordingly. Plaintiff did not respond to this letter.
    On 18 February 1999, the Haywood County Health Department inspected the Heavenly Ranch property and observed several violations of N.C. Gen. Stat. §§ 130A-335 to -338 (2001) regarding construction of wastewater systems, permit requirements and mandatory inspections. The County Health Department notified Plimpton by letter of these violations and advised that defendants would have until 19 March 1999 to apply for the necessary permits for the wastewater system in place on the property.
    On 22 January 2001, plaintiff conducted an inspection of the newly constructed buildings on defendants' property pursuant to an administrative warrant. Plaintiff discovered that no permits had been issued for the buildings and that no permit or inspection had been obtained for the wastewater system installed on the property. During the inspection, Plimpton was advised that inspections and permits were required for the construction and occupancy of the structures and installation of the wastewater system.
    In a letter dated 27 February 2001, the Haywood County Planning Department informed Plimpton that the construction activity on the Heavenly Ranch property violated Haywood County ordinances Chapters 151 and 155, concerning watershed protection and flood damage prevention. Another letter dated 28 February 2001 from the Haywood County Health Department informed Plimpton of theviolations of N.C. Gen. Stat. §§ 130A-335 to -338. Both letters gave defendants thirty days to correct the violations and comply with the statutes and ordinances.
    On 9 May 2001, plaintiff filed a verified complaint alleging defendants violated N.C. Gen. Stat. §§ 130A-335 to -338 and Haywood County ordinances Chapters 151 and 155. The complaint also alleged the Heavenly Ranch construction violated the State and County building codes. Plaintiff requested a preliminary injunction to prevent defendants from occupying the structures built in violation of the State and County building codes and to prohibit further construction. It also requested a final injunction and order of abatement requiring permits and inspections be obtained within a certain time and, in the event defendants failed to comply with this order, requested the structures be closed, demolished or removed by plaintiff.
    Defendants moved to dismiss for failure to state a claim upon which relief may be granted under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2001). The trial court denied this motion.
    On 23 July 2001, defendants filed a counterclaim asserting equitable estoppel and estoppel by silence as affirmative defenses. Defendants did not answer the allegations of plaintiff's complaint.
    On 10 August 2001, plaintiff filed a motion to dismiss defendants' counterclaim under Rule 12(b)(6) and a reply to the counterclaim.
    On 21 August 2001, defendants filed a motion to dismiss, claiming the wrong parties were served. The trial court deniedthis motion and issued a preliminary injunction ordering defendants not to use the structures on the Heavenly Ranch property until they complied with the applicable statutes and ordinances.
    Plaintiff filed a motion for judgment on the pleadings pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(c) (2001) on 19 October 2001. On 26 November 2001, defendants filed the following documents: (1) a motion to recuse Haywood County District Court Judge Richlyn Holt; (2) a demand for trial by jury; (3) a motion to dismiss for freedom of religion and/or estoppel; (4) a second amended petition for declaratory judgment; (5) a document entitled “defendants[']response to plaintiff's counter motion for summary judgment” and (6) another counterclaim.
    Following a hearing on 10 December 2001, the trial court entered an order and final injunction which prohibited defendants from occupying the structures on the property until they complied with applicable statutes and ordinances. The order gave defendants until 1 February 2002 to come into compliance and gave plaintiff authority to demolish or remove any buildings or structures upon defendants' failure to comply. The trial court also entered orders denying defendants' motion to recuse Judge Holt and dismissing defendants' counterclaim.
    Before addressing defendants' specific assignments of error, we note that N.C. Gen. Stat. § 1A-1, Rule 7(a) (2001) requires a defendant to file an answer to a complaint against him. N.C. Gen. Stat. § 1A-1, Rule 8(b) (2001) provides that a defendant's answer “shall state in short and plain terms his defenses to each claimasserted and shall admit or deny the averments upon which the adverse party relies.” (emphasis added). Any document which substantively responds to the allegations of the complaint constitutes an answer even when it does not comply with our Rules of Civil Procedure. Brown v. American Messenger Servs., Inc., 129 N.C. App. 207, 498 S.E.2d 384, disc. review denied, 348 N.C. 692, 511 S.E.2d 644 (1998). However, the failure to deny allegations in a responsive pleading constitutes an admission. Hill v. Hill, 11 N.C. App. 1, 180 S.E.2d 424, cert. denied, 279 N.C. 348, 182 S.E.2d 580 (1971). In the instant case, defendants did not file an answer to plaintiff's complaint, nor did defendants' counterclaim substantively respond to the allegations in the complaint. Because defendants failed to deny the allegations by a responsive pleading, they are deemed to have admitted the allegations contained in the complaint against them.

    In their first assignment of error, defendants argue the trial court erred in denying their motion to dismiss on the grounds of freedom of religion. Specifically, defendants contend that plaintiff's requiring East Fork, a religious organization, to submit to inspections and apply for permits constitutes excessive entanglement between church and state.
    Our Supreme Court has held that a municipal ordinance enacted for the primary purpose of protecting public health does not hinder the freedom of religious worship. State v. Massey, 229 N.C. 734, 51 S.E.2d 179, appeal dismissed, 336 U.S. 942, 93 L. Ed. 1099,reh'g denied, 336 U.S. 971, 93 L. Ed. 1121 (1949). While it is true that no State, municipality or other government entity may adopt regulations which interfere with religious beliefs, government interference with the exercise of religious practices is permissible. Id.; State v. Bullard, 267 N.C. 599, 148 S.E.2d 565 (1966), cert. denied, 386 U.S. 917, 17 L. Ed. 2d 789 (1967).
    Article 11 of N.C. Gen. Stat. Chapter 130A was enacted “to ensure the regulation of wastewater collection, treatment and disposal systems so that these systems may continue to be used, where appropriate, without jeopardizing the public health.” N.C. Gen. Stat. § 130A-333 (2001). The State building codes ensure “the protection of the occupants of the building or structure, its neighbors, and members of the public at large” under authority granted by N.C. Gen. Stat. Chapter 143, Article 19. N.C. Gen. Stat. § 143-138(b) (2001); see also Walker v. City of Charlotte, 276 N.C. 166, 171 S.E.2d 431 (1970) (holding that the General Assembly's authority to enact rules and establish minimum standards for the construction of buildings is a proper exercise of the police power).
    The State statutes and County ordinances challenged by defendants have the primary purpose of ensuring public health and do not interfere with any particular religious belief. Defendants do not argue that these regulations are discriminatory on their face or in their application, and defendants are free to use the Heavenly Ranch property for religious purposes upon compliance with the regulations.     We conclude there is no excessive entanglement of church and state in this case and hold the trial court did not err in denying defendants' motion to dismiss on the grounds of freedom of religion.
    In their next assignment of error, defendants contend the trial court erred in denying their motion to dismiss on the grounds of equitable estoppel and estoppel by silence.
        The essential elements of estoppel are (1) conduct on the part of the party sought to be estopped which amounts to a false representation or concealment of material facts; (2) the intention that such conduct will be acted on by the other party; and (3) knowledge, actual or constructive, of the real facts. The party asserting the defense must have (1) a lack of knowledge and the means of knowledge as to the real facts in question; and (2) relied upon the conduct of the party sought to be estopped to his prejudice.

State ex rel. Easley v. Rich Food Servs., Inc., 139 N.C. App. 691, 703, 535 S.E.2d 84, 92 (2000) (citation omitted). Equitable estoppel by silence arises only when the party has a duty to speak, Thompson v. Soles, 299 N.C. 484, 263 S.E.2d 599 (1980), and the party asserting estoppel must prove he was misled by such silence, Carroll v. Daniels and Daniels Constr. Co., 327 N.C. 616, 398 S.E.2d 325 (1990). Whether equitable estoppel applies depends on the particular facts and circumstances of each case. Chance v. Henderson, 134 N.C. App. 657, 518 S.E.2d 780 (1999).
    This Court explained the applicability of the doctrine of equitable estoppel to counties as follows:
        We recognize that counties are not subject toan estoppel to the same extent as a private individual or a private corporation. See Henderson v. Gill, Comr. of Revenue, 229 N.C. 313, 49 S.E.2d 754 (1948). Otherwise a county could be estopped from exercising a governmental right. Id. However, a governmental entity may be estopped if it is necessary to prevent a loss to another and the estoppel will not impair the exercise of governmental powers. Washington v. McLawhorn, 237 N.C. 449, 454, 75 S.E.2d 402, 406 (1953).

Land-of-Sky Regional Council v. Co. of Henderson, 78 N.C. App. 85, 91, 336 S.E.2d 653, 657 (1985), disc. review denied, 316 N.C. 553, 344 S.E.2d 7 (1986). Even when there is only the possibility that a county's exercise of governmental powers might be impeded by an estoppel, the estoppel doctrine will not apply. Burrow v. Randolph County Bd. of Educ., 61 N.C. App. 619, 301 S.E.2d 704 (1983).
    In this case, there is no evidence that plaintiff intentionally made false representations to defendants or concealed material facts to induce reliance by defendants. Nor is there evidence that Plimpton's vague letter to the Haywood County Manager containing no specific information about what he intended to build at Heavenly Ranch triggered plaintiff's duty to speak or that defendants were misled by plaintiff's not responding to this letter. Defendants further failed to demonstrate that they did not have the means of determining whether Haywood County had the authority to impose inspection and permit requirements, since the State statutes and County ordinances are of public record and available to defendants.
    Moreover, plaintiff's enforcement of State statutes regarding wastewater systems and County ordinances for watershed protectionand flood damage prevention is a governmental function properly exercised by the County under authority granted by N.C. Gen. Stat. Chapter 130A, Article 11. N.C. Gen. Stat. Chapter 153A, Article 18 further permits counties to enforce the rules for inspection and permitting under the State building codes. N.C. Gen. Stat. § 153A- 352, -357 (2001). If plaintiff is estopped from enforcing these regulations against defendants, it will impair the exercise of its governmental powers. It would be against public policy to enforce equitable estoppel and prevent plaintiff from protecting the public health of its residents by proper enforcement of the statutes and ordinances.
    We conclude the trial court did not err in denying defendants' motion to dismiss on the basis of equitable estoppel and estoppel by silence.
    Defendants further argue the trial court erred in denying their motion to dismiss for the reason that the wrong parties were served. Specifically, they contend that “ROBERT STANLEY PLIMPTON” is not a real party-in-interest since the general warranty deed recorded on 10 February 1998 transferred the Heavenly Ranch property from “ROBERT STANLEY PLIMPTON” to “Robert Stanley Plimpton.” They argue that Plimpton's name written in all capital letters, as it appeared on the complaint, is fictitious and copyrighted and may not be used without permission, which was not granted to plaintiff. Defendants also claim that the name of the East Fork corporation has never appeared on any deed regarding theHeavenly Ranch property and, thus, is not a real party-in-interest. This assignment of error is frivolous, and we find it to be without merit.
    Finally, defendants contend the trial court erred in denying the motion for a trial by jury.
    N.C. Gen. Stat. § 1A-1, Rule 38(b) (2001) provides that
        [a]ny party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.

The failure to make a timely demand as required by Rule 38(b) results in the party's waiver of his right to a jury trial. Whitfield v. Todd, 116 N.C. App. 335, 447 S.E.2d 796, disc. review denied, 338 N.C. 524, 453 S.E.2d 170 (1994).
    On 10 August 2001, plaintiff filed and served on defendants the last pleading in this case, the reply to defendants' counterclaim. Defendants filed the demand for a jury trial on 27 November 2001, more than three months after service of the last pleading. The demand for a jury trial was not timely and, therefore, defendants waived their right to a trial by jury.
    Further, when there are no issues of fact to be determined by a jury, the motion for a jury trial is properly denied. Glover v. Spinks, 12 N.C. App. 380, 183 S.E.2d 262 (1971); see also Kenansville v. Summerlin, 70 N.C. App. 601, 320 S.E.2d 428 (1984) (finding defendant was not entitled to a jury trial where the onlyissue before the court was an issue of law as to whether defendant violated zoning ordinances).
    Plaintiff's complaint and defendants' counterclaim raised only issues of law, and defendants admitted all averments in the complaint by failing to answer. Because there were no issues of fact to be determined by a jury, defendants were not entitled to demand a jury trial under Rule 38. We hold the trial court did not err by not granting defendants' request for a trial by jury.
    Defendants' remaining assignments of error were not presented or discussed in their brief and, therefore, are deemed abandoned. N.C.R. App. P. 28(b)(6) (2003).
    The trial court shall set a new date for defendant to comply with the terms of Judges Holt's order of 21 December 2001.
    Judge TYSON concurs.
    Judge WYNN concurs in the result only.
    Report per Rule 30(e).

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