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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 February 2008
NORTH CAROLINA ATTORNEY
GENERAL ROY COOPER ex rel.
STATE OF NORTH CAROLINA, and
DR. JEFFREY J. CROW,
Deputy Secretary, North Carolina
Department of Cultural Resources,
Office of Archives and History,
No. 05 CVS 704
JOHN W. McADEN,
Appeal by Respondent from judgment entered 17 November 2006 by
Judge Quentin T. Sumner in Wilson County Superior Court. Heard in
the Court of Appeals 10 October 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Karen A. Blum, for Petitioners-Appellees.
Narron & Holdford, P.A., by I. Joe Ivey, for Respondent-
This case asks us to decide, as between the State of North
Carolina and John W. McAden (Respondent), who is entitled to the
possession of an item of personal property. The property at issue
is a battle flag of the 18th North Carolina Regiment
(See footnote 1)
(the flagor the Fesq flag) which was captured by Private Frank Fesq
(See footnote 2)
the 40th New Jersey Volunteers in the trenches of the Confederate
Army at Petersburg, Virginia, on 2 April 1865. The trial court
granted summary judgment in favor of the State. We affirm.
The Attorney General and Dr. Jeffrey J. Crow, Deputy Secretary
of the Department of Cultural Resources (Petitioners), commenced
this action on behalf of the State by filing, on 3 May 2005, a
Petition for Return of a Public Record, a motion for preliminary
injunction, and Dr. Crow's affidavit. Petitioners alleged: (1)
Respondent was in unlawful possession of the flag, a public
record of the State; (2) Dr. Crow was the flag's lawful
custodian; (3) Petitioners were entitled to the flag's return;
and (4) the flag was in danger of being damaged or destroyed before
final judgment was rendered on the petition. The trial court
promptly issued a preliminary injunction enjoining Respondent from
selling, secreting, removing out of the State of North Carolina or
otherwise disposing of, or destroying or materially damaging or
injuring the flag[.] On 6 June 2005, and with the consent of
Respondent, the trial court ordered Petitioners to take custody of
the flag for purposes of safekeeping during the pendency of [the]
matter[.] Petitioners took custody of the flag that day.
Respondent filed his response to the petition on 11 July 2005.
Respondent alleged that he purchased the flag for approximately$10,000.00 around 1970 after seeing it advertised for sale in a
national publication, The Shotgun News
. Respondent further alleged
that the State had been aware of his possession of the flag since
at least 1975 and that State officials examined the flag at his
house. Respondent advanced the defenses of abandonment, the
statutes of limitations and repose, and laches as bars to
Petitioners' recovery of the flag. In the alternative, Respondent
asserted that he should be reimbursed for the expenses incurred in
gaining possession of the flag including but not limited to the
purchase price and expenses required to properly maintain and
protect the flag for the past thirty-five years.
On 28 September 2006, Petitioners filed a motion for summary
judgment. In addition to a memorandum in support of their motion,
Petitioners filed affidavits of Thomas W. Belton, Curator of
Military History for the North Carolina Museum of History, and John
M. Campbell, the Museum's Collections Manager.
According to Mr. Belton's affidavit and its attached exhibits,
the flag passed into the custody of the United States War
Department after its capture by Private Fesq. By letter dated 7
June 1887, the War Department notified Governor Alfred Scales that
President Grover Cleveland had approved the return of all the
flags in the custody of the War Department . . . to the authorities
of the respective States in which the regiments which bore them
were organized[.] Almost eighteen years later, on or about 25
March 1905, the War Department gave the Fesq flag and thirty-one
others to Governor Robert Glenn. Governor Glenn gave custody ofthe flags to Colonel Fred A. Olds, director of North Carolina's
Hall of History.
(See footnote 3)
The Fesq flag remained in the Hall of History
until at least 1953, when the Raleigh News & Observer
picture of the Fesq flag and stated that the flag was now in the
State Hall of History[.]
According to Mr. Campbell's affidavit and its attached
exhibits, for identification and record-keeping purposes, the Hall
of History assigned an accession number to each flag returned by
the War Department. Accession numbers were recorded in a
manuscript log and on two catalog cards created for each flag:
an accession card and a subject card. Accession cards were
arranged numerically in one card catalog; subject cards were
arranged by topic in a separate catalog. On 11 October 1965, an
employee of the Office of Archives and History completed
microfilming a set of accession and catalog cards which included
the Fesq flag cards. Within the past few decades, accession
numbers were entered into an electronic database. Mr. Campbell
further averred: 5. The North Carolina Historical
Commission or the General Assembly must
approve the disposition or deaccessioning of
all artifacts removed from the custody of the
Museum of History. When artifacts are
deaccessioned, notations are made on their
cards and entries made in the electronic
database. The subject and accession number
cards for the deaccessioned artifacts are not
removed from the catalogs. Accession numbers
are specific to only one artifact: they are
not re-assigned to newly acquired artifacts
after the artifact is sold, destroyed or
otherwise disposed of.
. . . .
10. The card catalog contains accession
number cards for all of the flags returned in
1905, except the card for [the Fesq flag].
11. There is no subject card in the card
catalog for [the Fesq flag] . . . numbered in
the security microfilm as 1914.252.24.
12. Without the catalog cards, the
manuscript log, electronic database or
personal knowledge of the accessioning of an
artifact, it is virtually impossible to
identify an artifact as having been
accessioned into the Museum of History's
13. There are no records indicating that
the flag was ever properly deaccessioned from
the Museum of History's collection.
In response to the motion for summary judgment, Respondent
filed his own affidavit and his responses to Petitioners' first set
of interrogatories. Respondent's affidavit repeated all of the
essential allegations made in his initial response to the petition.
Respondent averred that he should be allowed to continue to
maintain lawful possession of the flag. In his discovery
responses, Respondent again repeated many of the allegations made
in his initial response to the petition. Additionally, Respondentstated that he had spent approximately $15,000.00 on the
acquisition and conservation of the flag, and that he had no
knowledge or information concerning the possession, accessioning,
or deaccessioning of the flag by Petitioners.
The trial court conducted a hearing on the summary judgment
motion on or about 16 October 2006 and signed the order granting
summary judgment in favor of Petitioners on 18 October 2006. The
judgment was filed with the clerk's office on 17 November 2006.
Before the judgment was entered, Respondent timely filed notice of
appeal on 24 October 2006.
(See footnote 4)
II. APPELLATE RULES
[T]he Rules of Appellate Procedure are mandatory and not
directory[,] State v. Hart
, 361 N.C. 309, 311, 644 S.E.2d 201, 202
(2007) (quotation marks and citations omitted), and compliance
with the Rules is required. Id.
(citations omitted). Petitioners
argue that Respondent has violated the Rules by single-spacing
lines of text in the body of [his] brief.
(See footnote 5)
N.C. R. App. P.26(g)(1) (The body of text [in a brief] shall be presented with
double spacing between each line of text.). Petitioners ask us to
dismiss Respondent's appeal or otherwise sanction Respondent. By
way of sanction, we caution Respondent to comply with the Appellate
Rules in the future. N.C. R. App. P. 34(b)(3).
, we note that Respondent has violated Rule 12(a).
[W]ithin . . . 35 days after filing of the notice of appeal if no
transcript was ordered, the parties may by agreement entered in the
record on appeal settle a proposed record on appeal . . . . N.C.
R. App. P. 11(a).
If the record on appeal is not settled by
agreement under Rule 11(a), the appellant
shall, within the same time provided, serve
upon all other parties a proposed record on
appeal constituted in accordance with the
provisions of Rule 9. Within 30 days . . .
after service of the proposed record on appeal
upon an appellee, that appellee may serve upon
all other parties a notice of approval of the
proposed record on appeal, or objections,
amendments, or a proposed alternative record
on appeal in accordance with Rule 11(c). If
all appellees within the times allowed them
either serve notices of approval or fail to
serve either notices of approval or
objections, amendments, or proposed
alternative records on appeal, appellant's
proposed record on appeal thereupon
constitutes the record on appeal.
N.C. R. App. P. 11(b). Within 15 days after the record on appeal
has been settled by any of the procedures provided in this Rule 11
. . ., the appellant shall file the record on appeal with the clerk
of the court to which appeal is taken. N.C. R. App. P. 12(a). Respondent served Petitioners with his proposed record on
appeal on 28 November 2006. There is nothing in the record before
us that suggests Petitioners either filed a notice of approval or
served objections, amendments, or a proposed alternative record on
appeal. Because Respondent served the proposed record by mail, his
proposed record on appeal became the settled record on appeal by
operation of Rule 11(b) on 2 January 2007. N.C. R. App. P. 11(b),
27(a) and (b). Pursuant to Rule 12(a), Respondent was required to
file the settled record with this Court within fifteen days
thereafter, or by 17 January 2007. Respondent filed the settled
record on 7 February 2007, three weeks late.
On our own initiative, and to prevent a manifest injustice
to Respondent, we vary the requirements of Rule 12(a) in this case.
N.C. R. App. P. 2. Neither party requested oral argument, but this
Court ordered the parties to travel to Raleigh and appear before
us. Respondent's compliance with the Rules was not raised at oral
argument. Thus, it would be a manifest injustice to Respondent
to impose any sanction for his failure to comply with Rule 12(a).
We deem the record on appeal timely filed and reach the merits of
Respondent's appeal from the grant of summary judgment.
III. SUMMARY JUDGMENT
Summary judgment is appropriate 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)(2005). The trial court may not resolve issues of fact and must
deny the motion if there is a genuine issue as to any material
fact. Forbis v. Neal
, 361 N.C. 519, 524, 649 S.E.2d 382, 385
(2007) (citing Singleton v. Stewart
, 280 N.C. 460, 464, 186 S.E.2d
400, 403 (1972)). Moreover, all inferences of fact . . . must be
drawn against the movant and in favor of the party opposing the
(quotation marks and citation omitted). The
standard of review for summary judgment is de novo. Id.
Builders Mut. Ins. Co. v. North Main Constr., Ltd.
, 361 N.C. 85,
88, 637 S.E.2d 528, 530 (2006)).
Petitioners brought this action pursuant to a provision of the
North Carolina Public Records Law which provides, in part:
The Secretary of the Department of Cultural
Resources or his [or her] designated
representative or any public official who is
the custodian of public records which are in
the possession of a person or agency not
authorized by the custodian or by law to
possess such public records may petition the
superior court in the county in which the
person holding such records resides or in
which the materials in issue, or any part
thereof, are located for the return of such
public records. The court may order such
public records to be delivered to the
petitioner upon finding that the materials in
issue are public records and that such public
records are in the possession of a person not
authorized by the custodian of the public
records or by law to possess such public
N.C. Gen. Stat. § 132-5.1(a) (2005). The only other North Carolina
case addressing an action brought under this provision is State v.
, 31 N.C. App. 431, 229 S.E.2d 826 (1976), aff'd
, 293 N.C. 18,235 S.E.2d 150 (1977), and West
necessarily guides our analysis in
the case at bar.
, the State brought an action under the Public Records
Law to regain possession of two bills of indictment issued by the
Salisbury District Superior Court in the 1760s which were signed by
William Hooper, one of three North Carolinians to sign the
Declaration of Independence. Defendant argued that he had
purchased the documents at auction in 1974 and that he was entitled
to be declared the documents' owner. The trial court entered
summary judgment in favor of defendant, stating that it cannot
hold that in the more than two hundred years existence of each of
these Bills of Indictment that either of them left the possession
of the Salisbury District Superior Court or any of its successors
in any irregular manner. West
, 31 N.C. App. at 437, 229 S.E.2d at
This Court reversed, concluding that the State (a) [proved]
the indictments were required by law to be permanently retained,
(b) [overcame] the presumption that public officials have properly
performed their duty, and (c) proved that the indictments were in
a public archive and were stolen or otherwise improperly removed.
at 443-44, 229 S.E.2d at 833. Since title to the documents was
in the State when they were docketed, we held that the documents
were the property of the State and that the State was entitled to
their possession. The Supreme Court affirmed, stating:
Title to the bills of indictment in question
having been shown to have been in the State,
as successor to the King of England, there
being no showing that the State, or thesovereign under whom it claims, intentionally
abandoned the property, or authorized a
transfer of its possession by the custodian
whose official duty it was to keep the
documents in his possession, and the right of
the State to maintain this action not being
barred by the lapse of time, the State has
established its right to the possession of the
documents and the judgment of the Court of
Appeals, reversing that of the Superior Court,
, 293 N.C. at 32, 235 S.E.2d at 158.
It is not disputed that the State owned the flag at issue here
for approximately fifty years before Respondent came into its
possession. Furthermore, Respondent does not dispute Petitioners'
assertion that the flag is a public record of the State. See
Gen. Stat. § 132-1(a) (2005) (defining public records as all
documents, papers, letters, maps, books, photographs, films, sound
recordings, magnetic or other tapes, electronic data-processing
records, artifacts, or other documentary material, regardless of
physical form or characteristics
, made or received pursuant to law
or ordinance in connection with the transaction of public business
by any agency of North Carolina government or its subdivisions.)
(See footnote 6)
Thus, the issue is whether there is any genuine
issue of material fact that the State intentionally abandoned the
property, or authorized a transfer of its possession by thecustodian whose official duty it was to keep the [flag] in his
, 293 N.C. at 32, 235 S.E.2d at 158.
1. Abandonment & nullum tempus
By his fifth, sixth, and seventh assignments of error,
Respondent argues the trial court erred in granting summary
judgment in favor of the State because the State abandoned the
flag, entitl[ing] Respondent to maintain possession of the flag.
Respondent acknowledges that the Court in West
concluded that the
State in that case did not abandon the bills of indictment even if
the clerk of the court intentionally threw away the documents
because such action by him would not constitute an abandonment by
the sovereign of its property in the absence of a showing that the
sovereign authorized it or, with knowledge of it, ratified it.
The Court further stated, it is not enough that the custodian
into whose hands the owner entrusted [property] intentionally
discarded it. Id.
at 30, 235 S.E.2d at 157. It is the owner who
must have the intent so to terminate his title. . . . [and]
[n]othing in the record indicates a grant by [the State] to throw
away [the] documents committed to [the clerk's] custody. Id.
We agree with Respondent that the evidence in this case tends
to show that Museum officials knew Respondent was in possession of
the flag for many years before the State took action to seek its
recovery. Museum officials, however, are mere custodians of the
State's property, and their action or lack of action does not
indicate a grant by the State to discard the flag. According to
Mr. Campbell, [t]he North Carolina Historical Commission or theGeneral Assembly must approve the disposition or deaccessioning of
all artifacts removed from the custody of the Museum of History.
As nothing in the record suggests that either body approved such
action, it cannot be said that the State abandoned the flag.
Additionally, we briefly address Respondent's contention that
the doctrine of nullum tempus occurrit reipublicae
(See footnote 7)
preclude his defenses of the statutes of limitation and repose or
his defense of laches. In support of his contention, Respondent
cites the dissenting opinions in Rowan Cty Bd. of Educ.
, 332 N.C.
1, 418 S.E.2d 648, and West
, 293 N.C. 18, 235 S.E.2d 150.
(See footnote 8)
Respondent acknowledges that the majority opinions in those cases
are consistent with the rejection of defenses based on statutes of
[limitations and] repose and the doctrine of [laches] with regard
to the exercise of a sovereign power by the State[.] Respondent
asks us to overrule our Supreme Court. We need cite no authority
to reject Respondent's request. In sum, Respondent's assignments
of error concerning abandonment, the statutes of limitations and
repose, and the doctrine of laches are overruled. There is nogenuine issue of material fact that the State did not abandon the
2. Authorized Transfer by Custodian
By his first four assignments of error, Respondent contends he
is entitled to rely on the presumption that public officials acted
lawfully and in good faith, and that, therefore, the Department of
Cultural Resources presumably deaccessioned the flag as provided by
law. Since he was in possession of the flag at the commencement of
the action, Respondent argues his possession was presumably lawful.
In response, Petitioners argue that they overcame the presumption
that public officials acted lawfully and that they presented
sufficient evidence to show that the flag was never deaccessioned
from the State's archives.
Not surprisingly, our General Statutes authorize and direct
our public officials to collect, preserve, and administer public
archives and artifacts of historical value. See
, N.C. Gen.
Stat. § 121-4 (2005) (directing Department of Cultural Resources
to, inter alia
, maintain a museum). Our statutes also make clear
that public officials may dispose of such archives and artifacts
with the approval of the Department of Cultural Resources. See
, N.C. Gen. Stat. § 121-5(b) (2005) (No person may destroy,
sell, loan, or otherwise dispose of any public record without the
consent of the Department of Cultural Resources[.]); see also
N.C. Gen. Stat. § 132-3(a) (2005) (making it a Class 3 misdemeanor
for any public official to destroy, sell, loan, or otherwise
dispose of any public record, except in accordance with G.S. 121-5and G.S. 130A-99, without the consent of the Department of Cultural
Resources.). As a general rule, it is presumed that public
officials in the performance of official duties act
fairly, impartially, and in good faith and in
the exercise of sound judgment or discretion,
for the purpose of promoting the public good
and protecting the public interest. . . . The
presumption of regularity of official acts is
rebuttable by affirmative evidence of
irregularity or failure to perform duty, but
the burden of producing such evidence rests on
him who asserts unlawful or irregular conduct.
The presumption, however, prevails until it is
overcome by . . . evidence to the
contrary. . . . Every reasonable intendment
will be made in support of the
presumption. . . . Hence the burden is on the
petitioner to overcome the presumption by
competent and substantial evidence.
In re Annexation Ordinance
, 284 N.C. 442, 452, 202 S.E.2d 143, 149
(1974) (quotation marks and citations omitted). In light of this
presumption and the statutory directives, we must determine if
Petitioners met their burden of showing that public officials did
not have the approval of the Department of Cultural Resources to
deaccession the flag.
Petitioners met their burden by submitting the affidavits of
Dr. Crow, Deputy Secretary of the Department of Cultural Resources,
and Mr. Campbell, Collections Manager of the Museum of History. In
Dr. Crow's affidavit, he testified that Respondent was not
authorized by the Department to possess the flag. In Mr.
Campbell's affidavit, he testified that subject and accession
number cards were created for each flag returned to North Carolina
in 1905, and that those cards were maintained in card catalogs.
Even if a flag were deaccessioned, Mr. Campbell testified, itscards would remain in the catalogs with notations showing that the
flag was deaccessioned.
(See footnote 9)
The record on appeal contains a
microphotographic copy of the Fesq flag's catalog card,
(See footnote 10)
notation appears on the card showing that the flag was
deaccessioned. Revealingly, Mr. Campbell testified that [t]he
card catalog contains accession number cards for all of the flags
returned in 1905, except the card for [the Fesq flag]. Finally,
Mr. Campbell testified that [t]here are no records indicating that
the flag was ever
properly deaccessioned from the Museum of
History's collection. (Emphasis added). With this substantial
and competent evidence, the State met its burden of overcoming the
presumption that State officials deaccessioned the flag as provided
In ruling against Respondent as we have, we are cognizant
that, on the facts before us, Respondent is deprived of a
significant property interest. Nevertheless, [t]he public is not to lose its rights through
loss, theft or the unexplained removal of 
public records from the custody of the
[State], nor because one of its citizens
purchased the [records] in good faith, because
it was his duty, as much as that of every
other citizen, to protect the State in its
, 31 N.C. App. at 449, 229 S.E.2d at 836 (emphasis added). By
his final assignment of error, Respondent argues the trial court's
grant of summary judgment deprived him of the opportunity to seek
compensation for his expenditures in purchasing and preserving the
[n]either this Court nor any other has
authority to direct reimbursement of the
defendant for expense incurred in acquiring or
maintaining his possession thereof in good
faith, thus preserving it from destruction or
loss. If such claim is meritorious, the
Legislature, and it alone, may authorize the
use of State funds for such purpose.
, 293 N.C. at 33, 235 S.E.2d at 158. Respondent's final
assignment of error is overruled, and the judgment of the trial
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
Soldiers of the 18th North Carolina Regiment fired the shots
that killed Confederate General Thomas Stonewall Jackson.
For his actions, Private Fesq was awarded the Congressional
Medal of Honor.
The Hall of History was created in 1902 by the merger of
Colonel Olds's private collection of historical artifacts and the
State's archives. Initially a part of the State Museum of Natural
Sciences, a Division of the Department of Agriculture, the Hall of
History fell under the aegis of the North Carolina Historical
Commission around 1914 when the Historical Commission moved into
the newly completed Ruffin Building, the same building in which
this opinion is written. In 1943, the Legislature renamed the
Historical Commission the State Department of Archives and
History. Subsequently, the Hall of History became the North
Carolina Museum of History. The Department of Archives and
History fell under the aegis of the Department of Cultural
Resources when the Legislature created that Department in 1973.
Although Rule 3(c)(1) of the Rules of Appellate Procedure
provides that a party in a civil action must file written notice of
appeal within 30 days after
entry of judgment[,] N.C. R. App. P.
3(c)(1) (emphasis added), and Rule 58 of the Rules of Civil
Procedure provides that a judgment is entered when it is reduced
to writing, signed by the judge, and filed with the clerk of
court[,] N.C. Gen. Stat. § 1A-1, Rule 58 (2005), this Court has
held that a party is entitled to file and serve written notice of
appeal any time after [a] judgment [is] rendered in open court.
Merrick v. Peterson
, 143 N.C. App. 656, 660, 548 S.E.2d 171, 174,
disc. review denied
, 354 N.C. 364, 556 S.E.2d 572 (2001).
Petitioners also assert that the single-spaced brief makes
it difficult for Petitioners to determine whether Respondent has
complied with the thirty-five-page limit for briefs using non-
proportional type. See
N.C. R. App. P. 28(j)(2)(A)(1) (The page
limit for a principal brief that uses nonproportional . . . type is35 pages.).
When originally enacted, and until the current definition was
adopted in 1975, 1975 Sess. Laws 787, the Public Records Law
defined public records as all written or printed books, papers,
letters, documents and maps made and received in pursuance of law
by the public offices of the State . . . in the transaction of
public business. 1935 Sess. Laws 265.
No time runs against the state. This doctrine allows the
government to pursue wrongdoers in vindication of public rights and
the public purse. Rowan Cty. Bd. of Educ. v. U.S. Gypsum Co.
N.C. 1, 14, 418 S.E.2d 648, 657 (1992) (citations omitted).
Respondent also cites a line of cases which Rowan Cty. Bd. of
impliedly overruled: Raleigh v. Mechanics & Farmers Bank
223 N.C. 286, 26 S.E.2d 573 (1943); Charlotte v. Kavanaugh
N.C. 259, 20 S.E.2d 97 (1942); Tillery v. Whiteville Lumber Co.
172 N.C. 296, 90 S.E. 196 (1916); Threadgill v. Wadesboro
N.C. 641, 87 S.E. 521 (1916);
and Furman v. Timberlake
, 93 N.C. 66
Mr. Campbell also testified that an entry would be made in
the electronic database when an artifact was deaccessioned.
In his brief, Respondent contends the authenticity and/or
accuracy of the microphotographic copy of the 'card' is a triable
issue of fact since Petitioners offer the microphotographic copy as
evidence of lawful possession of the flag by the State[.]
Respondent did not contest the authenticity of the card in his
response to the summary judgment motion or in his affidavit filed
in support thereof. The nonmovant must set forth specific facts
showing that there is a genuine issue for trial. N.C. Gen. Stat.
§ 1A-1, Rule 56(e) (2005). We find no evidence in the record that
tends to show the microphotographic copy of the card was not an
authentic or accurate reproduction of the original card.
Respondent's bare allegation in his appellate brief does not create
a triable issue of fact.
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