Brown v. City of Winston-Salem

• Decision Date: 05 July 2005
• Docket Number: No. COA04-1245.,COA04-1245.
• Citation: 614 S.E.2d 599
• Parties: 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 Members, Defendants.
• Court: North Carolina Supreme Court

614 S.E.2d 599

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 Members, Defendants.

No. COA04-1245.

Court of Appeals of North Carolina.

July 5, 2005.

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, Winston-Salem, 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., Winston-Salem, for defendant appellant-appellees.

McCULLOUGH, Judge.

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.

I.

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 relied upon 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.

II.

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 not entertaining the instant interlocutory appeal to accommodate the parties.

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 interest.

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 from an 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 534-35 (1991).

III.

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).

IV.

A.

We first consider plaintiffs' arguments. In their first argument, plaintiffs contend that the trial court erred by granting summary 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.

B.

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....