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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
DONNA L. BROWN, WESLEY R. BROWN and wife, MARTEE U. BROWN, JACK
M. FISHER and wife, CATHEY G. FISHER, ANTHONY N. HUBBARD and
wife, FRANCES M. HUBBARD, JAMES M. MECUM, JR., GARNETT L.
MIDKIFF, JR., E. RAYMOND NICHOLSON, DONALD W. PETERS, G. FLOYD
SIDES and wife, JO ANN SIDES, Plaintiffs, v. CITY OF WINSTON-
SALEM, ALLEN JOINES, MAYOR, VIVIAN H. BURKE, DAN BESSE, ROBERT C.
CLARK, JOYCELYN V. JOHNSON, NELSON L. MALLOY, JR., VERNON
ROBINSON, WANDA MERSCHEL and FREDERICK N. TERRY, CITY COUNCIL
Filed: 5 July 2005
1. Appeal and Error--appealability--annexation--partial summary judgement--judicial
economy--convenience and preferences of parties
An interlocutory appeal from an involuntary annexation was considered under Rule 2 in
the interest of judicial economy; however, the convenience and preferences of the parties are not
proper considerations in deciding whether to hear an interlocutory appeal.
2. Appeal and Error--standard of review--summary judgment
The standard of review for summary judgment is whether there is a genuine issue of
material fact, with the evidence viewed in the light most favorable to the moving party and with
the appellate court conducting a de novo review.
3. Cities and Towns--involuntary annexation--equal protection
The Court of Appeals did not consider an alleged equal protection violation arising from
an involuntary annexation because the North Carolina Supreme Court and other panels of the
Court of Appeals have decided the issue.
4. Cities and Towns--involuntary annexation--city charter--general statutes
Under N.C.G.S. § 160A-3(c), the statutory provision allowing involuntary annexations
supercedes the Winston-Salem Charter provision permitting only voluntary annexations.
5. Cities and Towns--involuntary annexation--notice of meetings
Summary judgment should have been granted for defendants in an involuntary
annexation dispute where plaintiffs alleged inadequate notice but did not respond to defendants'
6. Open Meetings--involuntary annexation--Open Meetings Law--notice
Summary judgment should have been granted for defendants in an involuntary
annexation dispute where plaintiffs alleged inadequate notice under the Open Meetings Law, but
did not file affidavits contrary to those of defendant showing proper notice. Evidence that
meetings were improperly reported was not evidence that the City failed to give proper notice.
Judge STEELMAN dissenting.
Appeal by plaintiffs and defendants from an order entered 4
February 2004 by Judge John O. Craig, III, in Forsyth County
Superior Court. Heard in the Court of Appeals 22 April 2005.
Richard J. Browne for plaintiff appellants-appellees.
Womble Carlyle Sandridge & Rice, PLLC, by Roddey M. Ligon,
Jr., and the Office of the Winston-Salem City Attorney, by
Ronald G. Seeber and Charles C. Green, Jr., for defendant
Plaintiffs, citizens of an area which the City of Winston-
Salem is seeking to annex, appeal from a superior court order
granting partial summary judgment in defendants' favor.
Defendants, the City of Winston-Salem, its Mayor and City Council
members, appeal from the partial denial of their motion for summary
judgment. For the reasons set forth below, we address the parties'
arguments pursuant to Rule 2 and Rule 21 of the North Carolina
Rules of Appellate Procedure, and conclude that the trial court's
order must be affirmed in part and reversed in part.
At a special meeting held on 23 June 2003, the City Council of
Winston-Salem, North Carolina, adopted annexation ordinances
designed to extend the City's corporate limits to include, inter
alia, real property owned by plaintiffs. For the purposes of this
annexation, the City Council elected not to rely upon the voluntary
annexation procedure provided for in its charter and instead reliedupon the procedures set forth in N.C. Gen. Stat. § 160A-49 to
conduct an involuntary annexation.
On 22 August 2003, plaintiffs filed a complaint in superior
court in which they set forth three claims. In their first claim
(Claim I), plaintiffs asserted that they were being denied equal
protection under the law, as guaranteed by the North Carolina
Constitution, in that the Legislature has elected to require voter
approval for certain municipal annexations while not including such
a limitation in the general annexation laws codified in Article 4A
of Chapter 160A of the General Statutes. In their second claim
(Claim II), plaintiffs sought a declaration that the Winston-Salem
City Charter, rather than N.C. Gen. Stat. § 160A-45, et seq.,
governed the challenged annexation such that voter approval for the
border extension was required. In their third claim (Claim III),
plaintiffs averred that the City Council failed to provide proper
notice for certain special meetings at which the annexation issue
was discussed and voted upon.
Defendants filed a motion for summary judgment, along with
affidavits in support of the motion. By an order entered 4
February 2004, the trial court granted the defendants' motion for
summary judgment with respect to Claims I and II, and denied
defendants' motion for summary judgment with respect to Claim III.
Plaintiffs and defendants have appealed from this order.
 At the outset, we note that the challenged order granted
partial summary judgment and thus left issues to be resolved at
trial. Therefore, the order is interlocutory. See Liggett Group
v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993) (noting
that partial summary judgment is interlocutory). Furthermore, the
trial court did not certify that there is no just reason for
delaying the parties' appeals and the present case does not involve
a substantial right. See N.C. Gen. Stat. § 1A-1, Rule 54(b) (2003)
([T]he court may enter a final judgment as to one or more but
fewer than all of the claims or parties only if there is no just
reason for delay and it is so determined in the judgment.);
Liggett Group, 113 N.C. App. at 23-24, 437 S.E.2d at 677 (noting
that judicial review is appropriate where an interlocutory appeal
involves a substantial right). Therefore, dismissal of the
parties' appeals would be appropriate.
In their briefs, plaintiffs and defendants have requested that
we decide the present case because [the] parties wish to have
[this] Court take and decide the case without requiring further
hearings and resolution of the three issues . . . can . . . be
easily resolved. The convenience of deciding appellate arguments
and the preferences of the parties are not proper considerations
for this Court in determining whether to hear an interlocutory
appeal. As such, we admonish the attorneys as to the impropriety
of using these proffered bases for review and note that we are notentertaining the instant interlocutory appeal to accommodate the
However, our examination to determine the existence or
nonexistence of a substantial right has revealed that the unique
posture of the present case counsels in favor of appellate
disposition. Specifically, the trial court correctly granted
summary judgment with respect to Claims I and II, and erred by
denying summary judgment in defendants' favor with respect to Claim
III. Accordingly, if this Court were to dismiss the present
appeals as interlocutory, then Claim III would proceed to trial,
after which the parties would likely appeal to this Court again.
This additional litigation would be a waste of judicial resources.
Furthermore, the resulting delay would be especially inappropriate
given that the instant litigation concerns a matter of public
Rule 2 of the North Carolina Rules of Appellate Procedure
permits this Court to suspend or vary the requirements of the Rules
[t]o prevent manifest injustice to a party, or to expedite
decision in the public interest. We exercise our authority under
Rule 2 to consider the parties' appeals as petitions for
certiorari, and we grant certiorari to review the trial court's
interlocutory order. See N.C. R. App. P. 21(a) (The writ of
certiorari may be issued in appropriate circumstances by [an]
appellate court to permit review . . . when no right of appeal froman interlocutory order exists . . . .); Kimzay Winston-Salem, Inc.
v. Jester, 103 N.C. App. 77, 79, 404 S.E.2d 176, 177 (using Rule 2
to treat an appeal from an interlocutory order as a petition for a
writ of certiorari), disc. review denied, 329 N.C. 497, 407 S.E.2d
 We begin our analysis of the parties' arguments with the
standard of review. Summary judgment 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. N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2003). On a motion for summary judgment, [t]he evidence is to be
viewed in the light most favorable to the nonmoving party. Moore
v. Coachmen Industries, Inc., 129 N.C. App. 389, 394, 499 S.E.2d
772, 775 (1998) (citation omitted). When determining whether the
trial court properly ruled on a motion for summary judgment, this
court conducts a de novo review. Va. Electric and Power Co. v.
Tillett, 80 N.C. App. 383, 385, 343 S.E.2d 188, 191, cert. denied,
317 N.C. 715, 347 S.E.2d 457 (1986).
 We first consider plaintiffs' arguments. In their first
argument, plaintiffs contend that the trial court erred by grantingsummary judgment to defendants with respect to Claim I, which
asserted a state constitutional equal protection violation. In
their brief, plaintiffs cite authority from our Supreme Court and
this Court which is contrary to the position they have taken
throughout the instant litigation and concede that [the] North
Carolina [appellate] courts have consistently held that the
annexation statutes do not deny any qualified voter in this state
the [e]qual [p]rotection of the law under [either] the federal [or]
state constitutions. Notwithstanding this contrary authority,
plaintiffs request that this Court exercise its prerogative to
revisit the [e]qual [p]rotection issue.
This Court has no authority to overrule decisions of our
Supreme Court and has the responsibility to follow those decisions
until otherwise ordered by the Supreme Court. Dunn v. Pate, 334
N.C. 115, 118, 431 S.E.2d 178, 180 (1993). Likewise, [w]here a
panel of [this] Court . . . has decided the same issue, albeit in
a different case, a subsequent panel . . . is bound by that
precedent, unless it has been overturned by a higher court. In the
Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d
30, 37 (1989).
Accordingly, we are unable to revisit the equal protection
issue argued by plaintiffs. This assignment of error is overruled.
 Plaintiffs next contend that the trial court erred by
granting summary judgment in favor of defendants with respect to
Claim II, in which plaintiffs asserted that the Winston-Salem City
Charter, as opposed to the general annexation laws, applied and
required voter approval of the challenged annexation. We disagree.
In 1947, the General Assembly amended the Winston-Salem City
Charter to permit the City to extend its borders, subject to a
vote of the qualified voters of [the] [C]ity . . . and of the
territory to be annexed. Winston-Salem, N.C., City Charter art.
I, § 2 (enacted by 1947 N.C. Sess. Laws ch. 710). Pursuant to the
Charter, the Forsyth County Board of Elections must conduct the
election. Id. Subsequently, the General Assembly enacted Chapter
160A, Article 4A, Part 3 of the North Carolina General Statutes,
which allows large North Carolina municipalities to extend their
borders without first conducting an election. See, e.g., 1959 N.C.
Sess. Laws ch. 1009, § 5; 1973 N.C. Sess. Laws ch. 426, § 74; 1983
N.C. Sess. Laws ch. 636. Thus, the Winston-Salem City Charter, by
requiring an election, limits the power of annexation in a way that
the subsequently enacted general annexation laws do not.
The interplay between city charters and the general law of
this State is governed by the following rules:
(a) When a procedure that purports to
prescribe all acts necessary for the
performance or execution of any power, duty,
function, privilege, or immunity is provided
by both a general law and a city charter, thetwo procedures may be used as alternatives,
and a city may elect to follow either one.
(b) When a procedure for the performance or
execution of any power, duty, function,
privilege, or immunity is provided by both a
general law and a city charter, but the
charter procedure does not purport to contain
all acts necessary to carry the power, duty,
function, privilege, or immunity into
execution, the charter procedure shall be
supplemented by the general law procedure; but
in case of conflict or inconsistency between
the two procedures, the charter procedure
(c) When a power, duty, function, privilege,
or immunity is conferred on cities by a
general law, and a charter enacted earlier
than the general law omits or expressly denies
or limits the same power, duty, function,
privilege or immunity, the general laws shall
supersede the charter.
N.C. Gen. Stat. § 160A-3 (2003).
In the instant case, the Winston-Salem City Charter requires
action by the Forsyth County Board of Elections, which also derives
authority from, and is subject to limitations by, authorities other
than the Charter. It follows, plaintiffs contend, that the Charter
does not contain all acts necessary to conduct the annexation
such that, pursuant to N.C. Gen. Stat. § 160A-3(b), the General
Statutes' involuntary annexation procedure is supplemental to the
Charter and the Charter supercedes the General Statutes to the
extent there is conflict between the two.
We need not address whether the Charter contains all acts
necessary to conduct an annexation because subsection (c) of N.C. Gen. Stat. § 160A-3 applies in the instant case. The power to
annex is conferred upon the City in its Charter and by the General
Statutes. The Charter was enacted prior to the applicable
provisions of the General Statutes and contains a limitation on the
power to annex that the general law does not: the requirement that
a proposed annexation be approved in an election. Pursuant to N.C.
Gen. Stat. § 160A-3(c), the statutory provision establishing
involuntary annexations supercedes the Charter provision permitting
only voluntary annexations.
Accordingly, the trial court properly granted summary judgment
to defendants with respect to Claim II. This assignment of error
 We next address defendants' only argument, in which they
contend that the trial court erroneously denied their motion for
summary judgment with respect to Claim III, which alleged
insufficient notice was given for certain special meetings of the
City Council at which the annexation plan was discussed and voted
upon. We hold that this ruling was erroneous.
Claim III concerned the notice with respect to two City
Council meetings. The City Council held a special meeting on 11
June 2003 to consider the annexation, and held a special meeting on
23 June 2003 to vote on the annexation plan. The Council also
planned to hold meetings on 25, 26 and 30 June 2003 in the eventthat the vote on the annexation was delayed by procedural measures.
However, the annexation plan was adopted at the 23 June meeting,
and meetings were not held on 25, 26, or 30 June. In their
complaint, plaintiffs alleged that, [c]ontrary to [language in the
motion to call the 11 June 2003 special meeting], no written notice
of the . . . meeting was posted, mailed or delivered, and that the
City had violated the Open Meetings Law by providing notice for the
25, 26 and 30 June meetings in a way that confused the public about
whether the 23 June meeting was still going to be held.
Along with their motion for summary judgment, defendants filed
the affidavit of City Secretary Renee P. Rice, in which she stated
2. During the June 2, 2003 special meeting of the
Winston-Salem City Council a motion was approved to
call a special meeting of the City Council on June
11, 2003 at 5:30 p.m. to consider a revised
3. On June 10, 2003 a notice for the June 11, 2003 and
June 23, 2003 special meetings of the Winston-Salem
City Council was delivered by facsimile to all
media and others on the notice request list. A true
copy of said notice is attached hereto and made a
4. During the June 11, 2003 special meeting of the
Winston-Salem City Council a motion was approved to
call a special meeting of the City Council on June
23, 2003 at 7:30 p.m. for the purpose of taking
action on the proposed annexation.
5. On June 23, 2003 the Winston-Salem City Council
held a special meeting to consider (1) amending the
annexation report related to the proposed
annexations, and (2) adopting annexation ordinances
. . . . The special meeting of June 23, 2003 wasscheduled at the Council meeting of June 11, 2003
in open session. No public hearing was scheduled
for the special meeting of June 23, 2003 because
the required public hearing related to the proposed
annexations had already been held on May 27, 2003.
6. On June 23, 2003 the Mayor of the City of
Winston-Salem issued a call for special meetings of
the Winston-Salem City Council to be held on June
25, 26, and 30, 2003 to consider proposed
annexation issues. On the morning of June 23, 2003,
my office duly notified the media of the scheduling
of these special meetings. At no time did my office
distribute any notice to anyone stating that the
special meeting scheduled for June 23, 2003 had
been cancelled or that the City Council's
consideration of any annexation issue had been
7. The purpose for calling the special meetings for
June 25, 26, and 30, 2003 was to provide an
opportunity for the Winston-Salem City Council to
further consider amendment of the annexation report
and adoption of the proposed annexation ordinances
in the event consideration of these matters was
delayed by procedural rules or if a second reading
of the proposed annexation ordinances became
8. At the June 23, 2003 special meeting, the
Winston-Salem City Council duly amended the
annexation report and adopted the proposed
annexation ordinances on first reading. Thus the
special meeting schedule of June 25, 26, and 30,
2003 was never held.
Defendants also filed the affidavit of Pat Gentry, an employee in
the City's Marketing and Communications Department tasked with
examining local periodicals for items related to the City. Gentry
attached a number of newspaper articles, published 16, 17 and 23
June 2003, which reported that the 23 June 2003 meeting was going
to be held. Prior to the hearing of the present appeal, plaintiffs moved
to amend the record to include the affidavit of Benjamin T. Hoover.
According to Hoover, he had planned to attend the 23 June 2003
special meeting of the City Council but did not do so because a
newscast on a local television station reported that the station
had just received notice from the City that the meeting had been
postponed. Plaintiffs also sought to include a videotape of the
alleged newscast and a transcript of the summary judgment hearing.
This Court denied the motion to add these items to the record on
appeal. Thus, the record contains no affidavit filed by plaintiffs
in response to the affidavits filed by defendants.
When a motion for summary judgment is made and supported
. . . , an adverse party may not rest upon the mere allegations or
denials of his pleading, but his response, by affidavits or . . .
otherwise . . . , must set forth specific facts showing that there
is a genuine issue for trial. If he does not so respond, summary
judgment, if appropriate, shall be entered against him. N.C. Gen.
Stat. § 1A-1, Rule 56(e) (2003). The present plaintiffs' complaint
asserts two separate failures by the City to provide notice for
meetings. Plaintiffs have failed to meet their burden under N.C.
Gen. Stat. § 1A-1, Rule 56(e) with respect to each allegation.
The complaint first alleges that the City Council failed to
comply with its self-imposed requirement to provide written notice
for the 11 June 2003 meeting. However, defendants filed anaffidavit in which the City Secretary asserted that she did provide
written notice for this meeting. Plaintiffs failed to file any
affidavit disputing the City Secretary's affidavit. Therefore,
summary judgment should have been granted to defendants with
respect to this allegation.
 The complaint also alleges that the notification for the
23 June 2003 meeting violated the North Carolina Open Meetings Law.
Under the Open Meetings Law, the City was required to provide
written notice of the 23 June special meeting no less than forty-
eight hours in advance. N.C. Gen. Stat. § 143-318.12(b)(2) (2003).
Defendants presented affidavits which showed that the City had
provided the required notice to the local media. The record
contains no contrary affidavits from plaintiffs. Moreover, even
that the Hoover affidavit and the related
videotape were presented to the trial court, these items do not
contradict the affidavits offered by the defendants. Rather, the
Hoover affidavit and the videotaped newscast demonstrate, at best,
that erroneous information was reported about whether the City
Council was going to meet on 23 June 2003; these items do not show
that the City failed to give proper notice of the meeting.
Therefore, the trial court erred by failing to grant summary
judgment in defendants' favor with respect to Claim III. The trial
court's denial of defendant's motion for summary judgment with
respect to this claim is reversed. For the foregoing reasons, the trial court's order is
Affirmed in part and reversed in part.
Judge TIMMONS-GOODSON concurs.
Judge STEELMAN dissents.
STEELMAN, Judge dissenting.
I agree with the majority's discussion of the interlocutory
nature of both appeals contained in part II of the opinion, but
disagree with the manner in which the majority resolves this issue.
There has been a disturbing trend in recent years of parties
appealing interlocutory orders of the trial court where no right of
appeal exists under either N.C. Gen. Stat. § 1-277 or N.C. Gen.
Stat. § 7A-27(d). As noted by the majority, the parties in this
case have candidly acknowledged the questionable legal basis for
their appeals. The majority chastises the parties for their
conduct and then in the interests of judicial economy utilize Rules
2 and 21 of the North Carolina Rules of Appellate Procedure to hear
both appeals. I respectfully suggest that creating a way to hear
an improper interlocutory appeal does nothing but encourage such
conduct by parties in the future.
Both Rule 2 and Rule 21 are discretionary rules. This Court
does have the discretion to hear and rule on both of the appeals in
this matter. However, I question the wisdom of doing so in this
case. There are numerous appeals which this Court has dismissed asbeing interlocutory during the year 2005, to date. See e.g. Hinson
v. Jarvis, 170 N.C. App. 697, 614 S.E.2d 608 (2005) (unpublished);
State Auto. Mut. Ins. Co. v. Iadanza, 170 N.C. App. 437, 613 S.E.2d
753 (2005) (unpublished); Grant v. Miller, 170 N.C. App. 184, 611
S.E.2d 477 (2005); Milton v. Thompson, 170 N.C. App. 176, 611
S.E.2d 474 (2005); In re B.P., 169 N.C. App. 728, 612 S.E.2d 328
(2005); Atwood v. Eagle, 169 N.C. App. 255, 611 S.E.2d 899 (2005)
(unpublished); N.C. Dep't of Transp. v. Williams, 168 N.C. App.
728, 609 S.E.2d 498 (2005) (unpublished); Johnson v. Lucas, 168
N.C. App. 515, 608 S.E.2d 336 (2005); Mech. Sys. & Servs. v.
Carolina Air Solutions, 168 N.C. App. 240, 607 S.E.2d 55 (2005)
(unpublished); Neill Grading & Constr. Co. v. Lingafelt, 168 N.C.
App. 36, 606 S.E.2d 734 (2005); Stewart v. N.C. Dep't of Juvenile
Justice, 167 N.C. App. 808, 606 S.E.2d 458 (2005) (unpublished);
Robinson v. Gardner, 167 N.C. App. 763, 606 S.E.2d 449 (2005).
Unless the Rules of Appellate Procedure are consistently
applied they become meaningless. Viar v. N.C. Dep't of Transp.,
359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005).
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