An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1257


Filed: 19 August 2003


v .                         Cabarrus County
                            No. 00 CVS 130

    Appeal by plaintiff from judgment entered 15 May 2002 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 4 June 2003.

    Kent J. Ashton, pro se.

    Hamilton, Gaskins, Fay & Moon, PLLC, by Keith J. Merritt, for defendant-appellee.

    STEELMAN, Judge.

    In July 1998, plaintiff entered an agreement with the Concord Regional Airport (“Airport”) to lease a hangar for storage of his personal aircraft. In 1999, disputes arose between plaintiff and the Airport Aviation Director (“Director”) regarding plaintiff's use of the Airport facilities. Several tenants had complained to the Director that plaintiff was disturbing them and taking photographs in their hangars without permission. The Director informed plaintiff that he was entering restricted areas without authorization and that plaintiff should confine his activities to those restricted areas necessary for the use and enjoyment of his aircraft.    On 20 September 1999, the Director observed plaintiff in a restricted area unnecessary for the use and enjoyment of his aircraft. When plaintiff refused to comply with the Director's request to leave the restricted area, he summoned the Concord Police who cited plaintiff for trespassing.
    In a letter dated 21 December 1999, defendant terminated plaintiff's lease, effective 31 December 1999. Plaintiff appealed the termination in accordance with the lease terms. The Assistant City Manager heard plaintiff's appeal on 5 January 2000 and upheld the termination, citing the terms of the lease which allowed defendant to terminate for any reason with a ten-day written notice.
    Plaintiff filed a complaint and a motion for temporary restraining order on 18 January 2000 alleging defendant unlawfully denied him general access rights to the Airport facilities and had improperly terminated his lease. Plaintiff also filed a motion for preliminary injunction. On 7 February 2000, defendant filed a motion to dismiss the complaint for failure to state a claim upon which relief may be granted pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2001).
    Following a hearing, Judge Richard B. Boner in the Cabarrus County Superior Court entered an order denying plaintiff's motion for preliminary injunction and granting defendant's motion to dismiss. Plaintiff filed a motion for reconsideration and a new trial on the merits. Defendant then filed its first motion for attorney's fees.     Plaintiff amended his motion for reconsideration. Judge Boner entered an order denying the amended motion. Plaintiff filed notice of appeal to this Court on 15 May 2000, thus staying the trial court's consideration of defendant's motion for attorney's fees.
    On 3 July 2001, this Court affirmed the trial court's order dismissing plaintiff's complaint under Rule 12(b)(6). Ashton v. City of Concord, 144 N.C. App. 722, 548 S.E.2d 850 (2001) (“Ashton I”). Plaintiff filed an appeal to our Supreme Court alleging the existence of a constitutional question. Defendant filed a motion to dismiss the appeal, which our Supreme Court granted. Ashton v. City of Concord, 355 N.C. 210, 559 S.E.2d 797 (2002).
    On 6 May 2002, defendant renewed its earlier motion for attorney's fees before the Cabarrus County Superior Court. This motion asserted that plaintiff's complaint failed to raise any justiciable issue of law or fact. Defendant mailed to plaintiff a copy of its motion and the accompanying affidavit summarizing the amount of attorney's fees sought, as well as a notice of the hearing on the motion for attorney's fees. The hearing was held at the 13 May 2002 session of Cabarrus County Superior Court where both plaintiff and defendant presented evidence. Judge W. Erwin Spainhour entered a judgment awarding attorney's fees to defendant. Plaintiff appeals.

    In his first assignment of error, plaintiff contends the trial court erred in awarding defendant attorney's fees under N.C. Gen.Stat. § 6-21.5 (2001) because his complaint demonstrated justiciable issues of both law and fact.
    N.C. Gen. Stat. § 6-21.5 states:
        In any civil action or special proceeding the court, upon motion of the prevailing party, may award a reasonable attorney's fee to the prevailing party if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading. The filing of a general denial or the granting of any preliminary motion, such as...a motion to dismiss pursuant to G.S. 1A-1, Rule 12(b)(6), not in itself a sufficient reason for the court to award attorney's fees, but may be evidence to support the court's decision to make such an award. A party who advances a claim or defense supported by a good faith argument for an extension, modification, or reversal of law may not be required under this section to pay attorney's fees. The court shall make findings of fact and conclusions of law to support its award of attorney's fees under this section.

Under this statute, “the trial court is required to evaluate whether the losing party persisted in litigating the case after a point where he should reasonably have become aware that the pleading he filed no longer contained a justiciable issue.” Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254, 258, 400 S.E.2d 435, 438 (1991). The findings may be sufficient to uphold an award of attorney's fees even if the trial court fails to make a specific finding that the plaintiff should have been aware of the complaint's deficiencies. Brooks v. Giesey, 334 N.C. 303, 432 S.E.2d 339 (1993).
    The trial court made the following pertinent findings of fact:
        4. It was clear at the time of the filing of the complaint that there was no basis for theclaims being asserted by Ashton. The complaint attached a copy of Ashton's storage permit at the Airport, and that document clearly states that the City, and Ashton, could cancel the permit upon ten days written notice by either party.

        13. ...[B]ased upon the dismissal of Ashton's complaint by the Superior Court, the denial of Ashton's motion for reconsideration, the North Carolina Court of Appeal's [sic] affirmation of the actions of the trial court [in Ashton I], and the dismissal of Ashton's appeal to the North Carolina Supreme Court,...the complaint and its attachments make it clear that there was never any basis for Ashton's claims against the City and that the complaint failed to raise any justiciable issue of law or fact.

        14. In materials presented at the hearing by both parties and during the hearing the Court was informed of, and took judicial notice of, various other actions Ashton has brought against the City, including a prior action in Cabarrus County Superior Court...and three Federal Aviation Administration [FAA] Part 16 Proceedings.... The first Cabarrus County action was dismissed and not appealed. The first two FAA determinations were dismissed and Ashton appealed to the United States Fourth Circuit Court of Appeals, which affirmed the FAA dismissals. Ashton then filed a Petition for Writ of Certiorari to the United States Supreme Court, which was denied.


        17. Based upon the evidence presented at the hearing, the Court finds as a fact that the Complaint filed by Ashton does not contain a justiciable controversy of law or fact, and that the City was the prevailing party in the litigation.

        18. The court finds that the attorney['s] fees as set forth in the Affidavit of Keith J. Merritt [the City's counsel] are reasonable as to the time and labor expended, the skill required, the customary fee for like work, theexperience and abilities of the attorneys involved, and the result obtained, and that the City has expended attorney['s] fees of $28,283.55 to defend this action.

    The trial court specifically found that plaintiff had no basis for his claims at the time of filing the complaint since the lease agreement permitted termination upon ten days' written notice. It further found that based upon the various proceedings initiated by plaintiff in which all of his claims were found to be without merit, as well as other evidence presented at the hearing, plaintiff had failed to present any justiciable issue of law or fact. The trial court also made the required findings that defendant was the prevailing party and that the attorney's fees set forth in the affidavit of defendant's counsel were reasonable. Despite the absence of a specific finding that plaintiff should have known of the deficiencies in his claim at the time it was filed, the findings provide adequate support for the conclusion that plaintiff's claim failed to present a justiciable issue of law or fact. Brooks, supra.
    Plaintiff contends in his brief to this Court that he made a good faith argument for the extension of existing law and, pursuant to the terms of N.C. Gen. Stat. § 6-21.5, may not be required to pay attorney's fees. Plaintiff failed to assign as error the trial court's award of attorney's fees on the basis of his good faith argument for an extension of law. Our scope of review is limited to those issues presented by assignment of error in the record on appeal. N.C.R. App. P. 10 (2003); Koufman v. Koufman, 330 N.C. 93, 408 S.E.2d 729 (1991).     Further, it is unclear whether plaintiff presented this argument to the trial court because there is no transcript or other account of the hearing in the record. This Court's review is restricted to the record on appeal and verbatim transcripts of the proceedings. N.C.R. App. P. Rule 9(a). Each party is responsible for ensuring “the record on appeal clearly sets forth evidence favorable to that party's position.” Ronald G. Hinson Elec. v. Union County Bd. of Educ., 125 N.C. App. 373, 375, 481 S.E.2d 326, 328 (1997) (citations omitted). Since an appellate brief is not part of the record and plaintiff did not include his arguments at the hearing in the record, we cannot determine whether plaintiff made a good faith argument for the extension of current law before the trial court. See Hinson Elec., supra.
    We hold the trial court did not err in awarding defendant attorney's fees pursuant to N.C. Gen. Stat. § 6-21.5 for lack of any justiciable issue of law or fact.
    In his next assignment of error, plaintiff contends the trial court erred in awarding attorney's fees to defendant on the grounds that he initiated vexatious actions in the trial court and appellate courts of this State.
    Where a case becomes meritless during the proceedings, the trial court may sanction the complainant for further prosecution of the action pursuant to the court's inherent power. Bryson v. Sullivan, 330 N.C. 644, 412 S.E.2d 327 (1992). “[T]he proper standard of review for an act of the trial court in the exercise ofits inherent authority is abuse of discretion.” Couch v. Private Diagnostic Clinic, 146 N.C. App. 658, 663, 554 S.E.2d 356, 361 (2001) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 115 L. Ed. 2d 27, reh'g denied, 501 U.S. 1269, 115 L. Ed. 2d 1097 (1991)), appeal dismissed and disc. review denied, 355 N.C. 348, 563 S.E.2d 562 (2002).
    Plaintiff's complaint alleging the City unlawfully denied him access to Airport facilities and improperly terminated his lease was dismissed by the trial court for failure to state a claim upon which relief could be granted. His motion for reconsideration was denied, this Court affirmed the trial court's actions in Ashton I and the Supreme Court dismissed plaintiff's subsequent appeal. Despite these rulings, several letters written by plaintiff and received as evidence at the attorney's fees hearing threatened to continue litigation and suggested that the City could save money by allowing plaintiff to use the Airport and, thereby, ending the lawsuit. The trial court found that this conduct “constitutes a vexatious use of the Courts intended to cause the City to incur unnecessary expenses....” It then concluded that attorney's fees were proper on the separate and independent basis of plaintiff's pursuing “patently vexatious suits and appeals.”
    We hold the trial court did not abuse its discretion in exercising its inherent power to order plaintiff to pay attorney's fees for his vexatious conduct and abuse of the judicial system. This assignment of error is without merit.
    Finally, plaintiff argues the trial court violated his First Amendment right to free speech by sanctioning him on the basis of letters plaintiff wrote to defendant indicating he intended to initiate further legal proceedings.
    There is no evidence in the record that prior to this appeal, plaintiff made a constitutional argument regarding his First Amendment rights which would have prevented the trial court from considering his letters to the City in its ruling on attorney's fees. Because this constitutional argument was not considered or ruled upon by the trial court, this Court is not permitted to consider it on appeal. Shell Island Homeowners Ass'n v. Tomlinson, 134 N.C. App. 286, 517 S.E.2d 401 (1999).
    Moreover, the trial court properly considered the letters, submitted as exhibits at the hearing and the subject of plaintiff's hearing testimony, as part of its review of the entire record pursuant to N.C. Gen. Stat. § 6-21.5. See Brooks, supra; Winston- Salem Wrecker Ass'n v. Barker, 148 N.C. App. 114, 557 S.E.2d 614 (2001). Thus, we hold this assignment of error is without merit.
    Judges TIMMONS-GOODSON and HUDSON concur.
    Report per Rule 30(e).

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