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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.
THOMAS E. McCLURE, JAMES ROWELL and ELDRIDGE PAINTER, Plaintiffs,
v. THE COUNTY OF JACKSON, THE JACKSON COUNTY BOARD OF
COMMISSIONERS, THE JACKSON COUNTY AIRPORT AUTHORITY, GARY
BUCHANAN, EDWIN H. MADDEN, JR., and EDWARD RILEY, Defendants
Filed: 21 August 2007
1. Appeal and Error--appealability--mootness--attorney fees
Plaintiff's motion to dismiss defendants' appeal from the 14 February 2006 judgment
determining that defendants improperly removed plaintiff from his position as a member and
chairman of the Airport Authority is granted, because: (1) plaintiff's term of office in the Airport
Authority has expired, and any analysis by the Court of Appeals of the legality of the proceedings
below cannot have any practical effect on the existing controversy; (2) both parties conceded
during oral argument that the appeal of plaintiff's status as a member of the Airport Authority
was moot, and that the only issue to be resolved was the question of attorney fees; (3) an interest
in attorney fees is insufficient to create a case or controversy; (4) the issue of attorney fees is
thereafter determinable under the court's continuing equitable jurisdiction and is most
appropriately determined in the first instance by the district court on remand; and (5) the trial
court's award of attorney fees does not stave off the mootness of the nonattorney fees portion of
2. Costs--attorney fees-_jurisdiction
The trial court did not have jurisdiction to enter an award of attorney fees after defendants
had filed notice of appeal from the judgment of 14 February 2006, and the entry of an award of
attorney fees is remanded to the trial court, because: (1) the rationale under Surles, 113 N.C.
App. 32 (1993), is not applicable under the present version of N.C.G.S. § 1A-1, Rule 58 since the
amended rule now provides that a judgment is entered when it is reduced to writing, signed by
the judge, and filed with the clerk of court; (2) the trial court's purported reservation of attorney
fees did not allow it to retain jurisdiction of that issue since a court cannot create jurisdiction
where none exists; and (3) N.C.G.S. § 1-294 specifically divests the trial court of jurisdiction
unless it is a matter not affected by the judgment appealed from, and the exception under
N.C.G.S. § 1-294 is inapplicable when the attorney fees were based upon plaintiff being the
prevailing party in the proceedings.
Appeal by defendant from judgment entered 14 February 2006 and
order entered 21 April 2006 by Judge Zoro J. Guice, Jr. in Jackson
County Superior Court. Heard in the Court of Appeals 20 February
McGuire, Wood & Bissette, P.A., by Joseph P. McGuire, for
Rose Rand Attorneys, P.A., by Jeffrey P. Gray and J. Yancey
Washington, for defendants-appellants.
When the questions originally in controversy between the
parties are no longer at issue, the case is moot and should be
dismissed. After the trial court enters a written judgment and
notice of appeal has been given, the trial court is functus officio
and without jurisdiction to enter an award of attorney's fees. The
better practice is for the trial court to enter its written
judgment only after all issues, including attorney's fees, have
The Jackson County Airport Authority was established by
Jackson County for the operation and maintenance of airport
facilities. The Economic Development Commission (EDC) of Jackson
County was created pursuant to N.C. Gen. Stat. . 158-8. Thomas E.
McClure (plaintiff) was appointed by the Board of Commissioners
to serve as a member of the Airport Authority in August 2000.
Thereafter, plaintiff was elected as chairman of the Airport
Authority, serving in that capacity until 12 January 2005.
Plaintiff's term as a member of the Airport Authority was to expire
in August 2006. Plaintiff was appointed to the EDC by Western
Carolina University, which employed Plaintiff as the director of
the University's Office of Regional Affairs, and was subsequently
elected chairman of the EDC.
On 12 January 2005, the Jackson County Board of Commissioners,
in closed session, discussed the qualifications, competence,performance, [and] fitness of plaintiff in these positions. The
commissioners then reconvened in open session, voting to remove
plaintiff from all county committees and appointments. The
commissioners also voted that plaintiff return all records, books,
bank statements, documents, and minutes pertaining to the EDC and
the Airport Authority. The Board of Commissioners did not provide
plaintiff with advance notice or an opportunity to be heard prior
to his removal from these positions.
On 12 January 2005, the sheriff of Jackson County arrived at
plaintiff's office, demanding that McClure return all records,
books, bank statements, minutes, and other documents related to the
EDC. On 14 January 2005, Gary Buchanan (Buchanan) , a member of
the Airport Authority, accompanied by a deputy sheriff, seized from
plaintiff all records and other documents related to his position
as a member and chairman of the Airport Authority.
On 23 March 2005, plaintiff filed a verified complaint against
Jackson County, the Jackson County Board of Commissioners, the
Jackson County Airport Authority, Buchanan, Edwin H. Madden, Jr.
(Jackson County Commissioner), and Edward Riley (person appointed
by Commission to plaintiff's seat on the Airport Authority)
(hereinafter, defendants), seeking a declaration that defendants
acted unlawfully in removing plaintiff from the EDC and the Airport
Authority, and also seeking reinstatement to the positions by way
of a temporary restraining order, preliminary injunction, and
permanent injunction. James Rowell and Eldridge Painter, membersof the Airport Authority, joined the lawsuit as additional
On 31 March 2005, the trial court entered a temporary
restraining order, directing that the Airport Authority was
enjoined from meeting or conducting business pending the court's
hearing of plaintiff's motion for a preliminary injunction. On 13
April 2005, the trial court entered a preliminary injunction,
restoring plaintiff as a member and chairman of the Airport
Authority. The court found as a fact that the Board of
Commissioners provided McClure with neither advance notice nor any
opportunity to be heard to contest the removal[,] and concluded
that plaintiff [has] a likelihood of success on the merits of
[his] claim that the action of the Board of Commissioners to remove
McClure as a member of the Airport Authority without notice or
opportunity to be heard was contrary to law.
On 27 April 2005, plaintiff filed a verified amended
complaint, alleging that by convening in closed session to discuss
the removal of plaintiff from his appointed positions, defendants
violated the North Carolina Open Meetings Law, N.C. Gen. Stat. .
143-318.11(a)(3). Plaintiff further alleged that the Board of
Commissioners denied plaintiff due process of law by failing to
provide plaintiff with notice or an opportunity to be heard before
his removal from the appointed positions. In his amended
complaint, plaintiff sought a declaration that [d]efendants'
actions [complained of were] . . . unlawful[,] and that McClure
was improperly removed from the EDC and the Airport Authority. Plaintiff also sought injunctive relief, restoring plaintiff to his
office as a member and chairman of the Airport Authority.
This case went to trial on 8 February 2006, and a jury was
empaneled. However, counsel for plaintiff asserted that the action
was one seeking declaratory relief and there was no issue for the
jury to decide. Counsel for defendants did not dispute this
contention. The trial judge ruled that there were no issues of
fact to be submitted to the jury, discharged the jury, and heard
the matter without a jury.
On 14 February 2006, the trial court entered judgment in favor
of plaintiff, declaring the removal of McClure from the Airport
Authority to be null and void and ordering him to be restored
and reinstated as a member and chair of the Airport Authority.
The court concluded that the Board of Commissioners violated N.C.
Gen. Stat. . 143.318.11(a)(3) by considering in closed session the
qualifications, competence, performance, fitness, and/or removal of
McClure as a member of the [Airport Authority]. The court further
concluded that [b]y summarily removing McClure from the Airport
Authority, without notice or opportunity to be heard, the Board of
Commissioners denied McClure due process of law.
The trial court stated in its 14 February 2006 judgment that
[t]he Court will retain jurisdiction over this matter to hear any
motions by the Plaintiff to recover their costs and attorney
fees. On 23 February 2006, plaintiff filed a motion for costs and
attorney's fees pursuant to N.C. Gen. Stat. .. 6-1, 6-20, 6-19.1
and 7A-314. Plaintiff also moved for attorney's fees pursuant tothe Open Meetings Law, N.C. Gen. Stat. § 143-318.16B. On 16 March
2006, defendants filed notice of appeal from the trial court's 14
February 2006 judgment. On 3 April 2006, the trial court heard
plaintiff's motion for costs and attorney's fees. On 21 April
2006, the trial court granted plaintiff's motion, entering an order
awarding costs and attorney's fees in the amount of $36,347.75. On
5 May 2006, defendants filed notice of appeal from the trial
court's order awarding attorney's fees.
This case comes before this Court on two separate appeals, COA
06-867, which is the appeal of the 14 February 2006 judgment, and
COA 06-938, which is the appeal of the 21 April 2006 order awarding
costs and attorney's fees. On 11 September 2006, plaintiff filed
a motion to dismiss the appeal as moot, because plaintiff's term as
a member and chairman of the Airport Authority expired in August
2006. Because the background of these appeals is identical and the
issues presented are completely intertwined, we address them in a
 We first consider plaintiff's motion to dismiss
defendants' appeal as being moot. We conclude that defendants'
appeal is moot and dismiss the appeal, with the exception of
defendants' appeal of the attorney's fees awarded to plaintiff.
The North Carolina Supreme Court has stated that [a] case is
'moot' when a determination is sought on a matter which, when
rendered, cannot have any practical effect on the existing
controversy. Roberts v. Madison County Realtors Ass'n, 344 N.C.394, 398-99, 474 S.E.2d 783, 787 (1996). In the opinion of In re
Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), the North
Carolina Supreme Court stated:
Whenever, during the course of litigation it
develops that the relief sought has been
granted or that the questions originally in
controversy between the parties are no longer
at issue, the case should be dismissed, for
courts will not entertain or proceed with a
cause merely to determine abstract
propositions of law.
Unlike the question of jurisdiction, the issue of mootness is not
determined solely by examining facts in existence at the
commencement of the action. If the issues before a court . . .
become moot at any time during the course of the proceedings, the
usual response should be to dismiss the action. Id. at 148, 250
S.E.2d at 912; see also McKinney v. Board of Comm'rs, 278 N.C. 295,
179 S.E.2d 313 (1971) (holding that plaintiff's action seeking an
injunction to restrain the defendants from preparing for and
holding an election was moot when the election had actually been
held, and therefore, plaintiff's appeal was properly dismissed).
In the instant case, the trial court ruled that defendants
improperly removed plaintiff from his position as a member and
chairman of the Airport Authority. In their appeal, defendants
assert that the trial court erred as follows: (1) failing to submit
questions of fact to the jury; (2) failing to conduct a de novo
bench trial and relying upon evidence presented at the preliminary
injunction hearing; (3) disregarding evidence presented at the
bench trial; (4) holding that plaintiff had a due process right in
his position in the Airport Authority; and (5) refusing to allowdefendants to amend their answer to assert a statute of limitations
defense. All of these arguments go to the merits of questions
originally in controversy between the parties[,] [which] are no
longer at issue[.] Peoples, 296 N.C. at 147, 250 S.E.2d at 912.
Since plaintiff's term of office in the Airport Authority has
expired, any analysis by this Court of the legality of the
proceedings below cannot have any practical effect on the existing
controversy. Roberts, 344 N.C. at 398-99, 474 S.E.2d at 787. At
oral argument, both counsel conceded that the appeal of plaintiff's
status as a member of the Airport Authority was moot, and that the
only issue to be resolved is the question of attorney's fees.
Defendants, however, contend that while the dispute over the
removal of plaintiff as a member of the Airport Authority is itself
moot, this Court must still resolve these issues since they have a
direct bearing on whether the trial court erred in awarding
attorney's fees to plaintiff.
In the federal courts, [a] great deal of ink has been spilled
. . . addressing the question whether plaintiffs' demand for
attorneys' fees staves off mootness. Gates v. Towery, 430 F.3d
429, 430 (7th Cir. 2005). In North Carolina courts, the specific
question of whether a claim for attorney's fees, in and of itself,
prevents the mootness of related claims has not been addressed.
Decisions of lower federal courts may be persuasive in our courts,
but they are not binding authority.
In re Truesdell, 313 N.C. 421,
428-29, 329 S.E.2d 630, 634-35 (1985) (stating that [a]lthough we
recognize that this Court is not bound by the decision from theFederal court, we are nevertheless mindful of the legal maxim,
ratio est legis amina, reason is the soul of the law).
Lewis v. Continental Bank Corp., 494 U.S. 472, 480, 110 S.
Ct. 1249, 1255 (1990), the United States Supreme Court concluded
that an interest in attorney's fees is, of course, insufficient to
create [a] case or controversy[.]
See also United States v. Ford,
650 F.2d 1141, 1143-44 (9th Cir. 1981), cert. denied, 455 U.S. 942,
71 L. Ed. 2d 654 (1982).
The Fourth Circuit concluded in S-1
v. Spangler, 832
F.2d 294, 297 n.1 (4th Cir. 1987), that an appeal was moot despite
a party's assertion of attorney's fees and costs claims, observing
that, [a]ny other rule would largely nullify the mootness doctrine
with respect to cases brought under the myriad federal statutes
that authorize fee awards. Id. (citing Flesch v. Eastern Pa.
Psychiatric Inst., 472 F. Supp. 798, 802 (E.D. Pa. 1979)).
If a claim for attorney's fees does not stave off mootness, we
must next consider whether this Court must examine the merits of
the mooted question to decide whether plaintiff was entitled to
attorney's fees. We are persuaded by the logic of Spangler. In
Spangler, the court stated that the [t]he issue [of attorney's
fees] is thereafter determinable under the court's continuing
equitable jurisdiction, . . . and is most appropriately determined
in the first instance by the district court on remand. Spangler,
832 F.2d at 297 (citing Doe v. Marshall, 622 F.2d 118, 119 (5th
Cir. 1980)). We conclude that, although the examination of the
merits of the mooted question would be merely an exercise indetermin[ing] [an] abstract proposition of law[,] Peoples, 296
N.C. at 147, 250 S.E.2d at 912, the issue of attorney's fees here
is most appropriately determined . . . by the [trial] court on
remand. Spangler, 832 F.2d at 297.
We hold that defendants' claims with regard to the
appropriateness of the trial court's award of attorney's fees does
not stave off the mootness of the non-attorney's fees portion of
defendant's appeal. This portion of defendant's appeal is moot and
B: Jurisdiction of Trial Court to Enter Attorney's Fees Order
 We next address whether the trial court had jurisdiction
to enter an award of attorney's fees after the defendant had filed
notice of appeal from the judgment of 14 February 2006.
The issue of jurisdiction over the subject matter of an action
may be raised at any time during the proceedings, including on
appeal. In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793
(2006). This Court is required to dismiss an appeal ex mero motu
when it determines the lower court was without jurisdiction to
decide the issues. Lemmerman v. A.T. Williams Oil Co., 318 N.C.
577, 580, 350 S.E.2d 83, 86 (1986).
The question of whether the trial court had jurisdiction to
decide the issue of attorney's fees is addressed by N.C. Gen. Stat.
§ 1-294, the pertinent portion of which reads:
When an appeal is perfected as provided by
this Article it stays all further proceedings
in the court below upon the judgment appealed
from, or upon the matter embraced therein; but
the court below may proceed upon any othermatter included in the action and not affected
by the judgment appealed from.
[T]he general rule has been that a timely notice of appeal
removes jurisdiction from the trial court and places it in the
appellate court. Parrish v. Cole, 38 N.C. App. 691, 693, 248
S.E.2d 878, 879 (1978). Pending appeal, the trial judge is
[generally] functus officio, subject to two exceptions and one
qualification, none of which are applicable to the instant case.
Kirby Bldg. Systems, Inc. v. McNiel, 327 N.C. 234, 240, 393 S.E.2d
827, 831 (1990) (citations omitted).
This Court has dealt in a number of cases with the question of
whether a trial court has jurisdiction to enter an award of
attorney's fees following the filing of notice of appeal. In
Brooks v. Giesey, 106 N.C. App. 586, 590-91, 418 S.E.2d 236, 238
(1992), this Court stated that:
Under a statute such as section 6-21.5, which
contains a prevailing party requirement, the
parties should not be required to litigate
fees when the appeal could moot the issue.
Furthermore, upon filing of a notice of
appeal, a trial court in North Carolina is
divested of jurisdiction with regard to all
matters embraced within or affected by the
judgment which is the subject of the appeal.
N.C. Gen. Stat. § 1-294 (1983).
This logic was followed in the case of Gibbons v. Cole, 132 N.C.
App. 777, 782, 513 S.E.2d 834, 837 (1999). In that case, the trial
court entered an order, dismissing plaintiff's complaint. At the
time of the hearing, defendants moved for an award of attorney's
fees and filed affidavits in support of the motion. The trial
court in the written order of dismissal set a hearing on the motionfor attorney's fees for a later date, in order to allow plaintiffs
an opportunity to review and respond to the affidavits. Prior to
the hearing on attorney's fees, plaintiffs filed notice of appeal.
A hearing was subsequently held, and attorney's fees were awarded
to defendants. We held that the appeal by plaintiffs from the
judgment on the pleadings deprived the superior court of the
authority to make further rulings in the case until it returns from
this Court. Id.
There are several cases which appear to indicate a contrary
result but are distinguishable. In In re Will of Dunn, 129 N.C.
App. 321, 500 S.E.2d 99 (1998), this Court held that in a will
caveat case, the trial court could enter an award of attorney's
fees after the filing of notice of appeal, because the decision to
award costs and attorney's fees was not affected by the outcome of
the judgment from which caveator appealed[.] Id. at 329, 500
S.E.2d at 104-05. This holding is restricted to caveat proceedings
where the trial court has the discretion to award attorney's fees
as costs to attorneys for both sides. Id. at 330, 500 S.E.2d at
105. In the case of Surles v. Surles, 113 N.C. App. 32, 437 S.E.2d
661 (1993), the trial court orally announced its judgment in a
child custody case in open court, expressly reserving the issue of
attorney's fees. Prior to the entry of a written judgment, one of
the parties gave notice of appeal. Subsequently, the trial court
conducted a hearing on a motion for attorney's fees. Written
orders on the custody matter and attorney's fees were entered after
the notice of appeal was filed. This Court held that the trialcourt retained the authority to consider the issue since
attorney's fees were within the court's 'oral announcements' and
the written orders conformed substantially to those oral
announcements. Id. at 43, 437 S.E.2d at 667.
We note that Surles was decided in 1993, and dealt with orders
entered on 31 October 1991. This was a time of great confusion in
the law of North Carolina as to whether an order or judgment was
entered at the time of an oral pronouncement from the bench or
upon the filing of a written judgment. This issue was finally
resolved by the enactment of Chapter 594 of the 1993 Session Laws.
This statute, applicable to judgments entered on or after 1 October
1994, amended Rule 58 of the North Carolina Rules of Civil
Procedure to provide that a judgment is entered when it is reduced
to writing, signed by the judge, and filed with the clerk of
court. Thus, the fact situation set forth in Surles cannot occur
under the present law, since prior to the filing of a written
judgment, there would have been nothing from which to appeal. We
hold that the rationale of Surles is not applicable under the
present version of Rule 58 of the North Carolina Rules of Civil
We next address whether the trial court's purported
reservation of the attorney's fees issue allowed it to retain
jurisdiction of that issue. It is fundamental that a court cannot
create jurisdiction where none exists. See
In re McKinney, 158 N.C.
App. 441, 443, 581 S.E.2d 793, 795 (2003).
N.C. Gen. Stat. § 1-294
specifically divests the trial court of jurisdiction unless it isa matter not affected by the judgment appealed from. When, as in
the instant case, the award of attorney's fees was based upon the
plaintiff being the prevailing party in the proceedings, the
exception set forth in N.C. Gen. Stat. § 1-294 is not applicable.
While we understand that the interests of judicial economy
would clearly be better served by allowing the trial court to enter
an order on attorney's fees and then having the matter come up to
the appellate courts as a single appeal, we cannot create
jurisdiction for the trial court to enter the award of attorney's
fees in violation of N.C. Gen. Stat. § 1-294. Further, the facts
in Gibbons are indistinguishable from the instant case. One panel
of the Court of Appeals cannot overrule another panel that has
previously decided the identical issue. In re Civil Penalty, 324
N.C. 373, 384, 379 S.E.2d 30, 37 (1989). When faced with the
possibility of an award of attorney's fees, the better practice is
for the trial court to defer entry of the written judgment until
after a ruling is made on the issue of attorney's fees, and
incorporate all of its rulings into a single, written judgment.
This will result in only one appeal, from one judgment,
incorporating all issues in the case.
We reverse the entry of an award of attorney's fees by the
trial court and remand this matter to the trial court for entry of
an appropriate order, containing findings of fact and conclusions
of law pertinent to the statutory provisions under which plaintiff
seeks attorney's fees. As noted in the portion of the opinion
dealing with mootness, even though the case in chief is moot, thetrial court may, under appropriate circumstances, award attorney's
fees and costs, pursuant to its equitable jurisdiction.
For the reasons discussed above, we dismiss the appeal of the
trial court's order of 14 February 2006 for mootness
, reverse the
trial court's order awarding plaintiff attorney's fees for lack of
and remand the case to the superior court for
consideration of the question of attorney's fees consistent with
DISMISSED IN PART, REVERSED AND REMANDED IN PART.
Judges WYNN and JACKSON concur.
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