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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA07-165


Filed: 19 February 2008

Deputy Secretary, North Carolina
Department of Cultural Resources,
Office of Archives and History,


v .                         Wilson County
                            No. 05 CVS 704


    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- Appellant.

    STEPHENS, Judge.

    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 flag”or “the Fesq flag”) which was captured by Private Frank Fesq   (See footnote 2)  of 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 published a 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 collection.

            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) 

    “[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)  See 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).
    Sua sponte, 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.
    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 motion.” Id. (quotation marks and citation omitted). “The standard of review for summary judgment is de novo.” Id. (citing 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 records.

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. West, 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.
    In West, 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 829.
    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.” Id. 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, was correct.

West, 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 N.C. 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.”) (emphasis added).   (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 possession[.]” West, 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.” Id. 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)  should not 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 flag.
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, e.g., 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, e.g., 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)  and no 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 by law.
3. Compensation

    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 rights.

West, 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 flag. However,
        [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.

West, 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 court is
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

Footnote: 1
    Soldiers of the 18th North Carolina Regiment fired the shots that killed Confederate General Thomas “Stonewall” Jackson.
Footnote: 2
    For his actions, Private Fesq was awarded the Congressional Medal of Honor.
Footnote: 3
    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.
Footnote: 4
    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).
Footnote: 5
    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.”).
Footnote: 6
    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.
Footnote: 7
    “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., 332 N.C. 1, 14, 418 S.E.2d 648, 657 (1992) (citations omitted).
Footnote: 8
    Respondent also cites a line of cases which Rowan Cty. Bd. of Educ. impliedly overruled: Raleigh v. Mechanics & Farmers Bank, 223 N.C. 286, 26 S.E.2d 573 (1943); Charlotte v. Kavanaugh, 221 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, 170 N.C. 641, 87 S.E. 521 (1916); and Furman v. Timberlake, 93 N.C. 66 (1885).
Footnote: 9
    Mr. Campbell also testified that an entry would be made in the electronic database when an artifact was deaccessioned.
Footnote: 10
    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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