NORRIS DILLAHUNT AND
No. 03 CVS 1229
CITY OF NEW BERN,
Gray, Johnson, Blackmon, Lee & Lawson, LLP, by Mark V.L. Gray
Sumrell, Sugg, Carmichael, Hicks & Hart, P.A., by Scott C. Hart for defendants-appellees.
Norris Dillahunt and William Dove (Dove) (plaintiffs)
appeal the denial of their motion for summary judgment and the
grant of summary judgment to Johnnie Clark, the Chief Building
Inspector (Inspector Clark), and the City of New Bern (the
City) (collectively known as defendants). We dismiss for
violation of the Rules of Appellate Procedure.
Plaintiffs owned an apartment building at 212-226 First Street (the apartments), in New Bern, North Carolina. On 26 April 1989,the City received a complaint regarding the apartments pursuant to the City's Minimum Housing Code (the Code). On 13 May 1992, the City turned off electrical services to the apartments because of fire, wiring problems and continued deterioration. The apartments were subsequently boarded and from that point forward were not legally inhabited by any person. On 21 October 1998, following another complaint, the City served the plaintiffs with a notice of hearing. Eight days later, Inspector Clark held a hearing and ordered plaintiffs to repair or demolish the apartments. On 10 November 1998, plaintiffs appealed Inspector Clark's decision to the City Board of Adjustment (the Board). The Board affirmed the decision of Inspector Clark. Plaintiffs did not appeal the Board's determination to the Craven County Superior Court. On 23 February 1999, plaintiffs requested a ninety-day extension prior to the issuance of any demolition ordinance (the ordinance), to which the Board agreed. On 25 May 1999, the City's Board of Alderman passed the ordinance expressly requiring the plaintiffs to demolish the apartments within thirty days. The ordinance reserved the right for the City to demolish the apartments if the plaintiffs failed to act. On 4 June 1999, plaintiffs filed suit regarding the ordinance. On 6 October 1999, United States District Court Judge Malcolm J. Howard dismissed plaintiffs' cause of action and sanctioned them pursuant to Rule 11 of the Federal Rules of Civil Procedure. On 6 December 1999, plaintiffs applied for and received a building permit (the permit) to perform the work on the apartments. On 7 July 2000, Inspector Clark sent plaintiffs aletter informing them that the permit was revoked due to a lack of substantive work. On 12 July 2000, the City demolished the apartments.
On 14 July 2003, plaintiffs filed a complaint alleging, inter alia, trespass and unfair and deceptive trade practices. On 12 September 2003, defendants filed an answer and asserted several defenses. On 18 February 2005, plaintiffs filed a motion for summary judgment on the ground that there was no issue of material fact. On 22 February 2005, defendants also filed a motion for summary judgment. On 8 April 2005, the trial court denied plaintiffs' summary judgment motion and granted defendants' summary judgment motion. Plaintiffs appeal.
I. Summary Judgment:
Plaintiffs argue the trial court erred in denying their summary judgment motion while simultaneously granting summary judgment in favor of the defendants. Plaintiffs argue there are multiple issues of material fact that render summary judgment inapplicable. We dismiss.
N.C. R. App. P. 10(b)(1) (2005) states, in pertinent part, [i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make[.] (emphasis added). Importantly, [a] party may not raise a new theory to the case for the first time on appeal. Myers v. McGrady, 170 N.C. App. 501, 513, 613 S.E.2d 334, 343 (2005), rev'd on other grounds, 360 N.C. 460, 628 S.E.2d 761(2006). Our Supreme Court has long held that where a theory argued on appeal was not raised before the trial court, 'the law does not permit parties to swap horses between courts in order to get a better mount[.]' State v. Augustine, 359 N.C. 709, 721, 616 S.E.2d 515, 525 (2005) (citing State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)).
In the instant case, at the conclusion of the summary judgment hearing, the trial court and counsel for both the defendants and plaintiffs had the following exchange.
Court: So you are consenting or stipulating that there are no genuine issues or material facts that would impact the outcome of this case; that would require a jury trial, or anything like that?
Counsel for defendants: That's correct.
Counsel for plaintiffs: That's correct.
However, on appeal, all of plaintiffs' assignments of error are predicated upon the existence of genuine issues of material fact[.] Additionally, plaintiffs declare in their argument to this Court that [t]here exist genuine issues of material fact in this case[.] Thus, pursuant to Rule 10(b)(1), plaintiffs failed to preserve for appellate review the specific grounds for the ruling the party desired the [trial] court to make[.] Further, and pursuant to Augustine, and Meyers, supra, plaintiffs cannot argue before this Court issues they failed to properly raise and contend at the trial court. Consequently, this appeal is dismissed. Dismissed.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
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