Groves v. COMMUNITY HOUSING OF HAYWOOD

• Decision Date: 05 June 2001
• Docket Number: No. COA00-404.,COA00-404.
• Citation: 548 S.E.2d 535,144 NC App. 79
• Court: North Carolina Court of Appeals
• Parties: Nancy Underwood GROVES, Plaintiff, v. COMMUNITY HOUSING CORPORATION OF HAYWOOD COUNTY, a North Carolina Non-Profit Corporation, and The Town of Waynesville, by and through its Board of Aldermen, a body politic organized and existing under the laws of the State of North Carolina, Defendants.

548 S.E.2d 535

144 NC App. 79

Nancy Underwood GROVES, Plaintiff, v. COMMUNITY HOUSING CORPORATION OF HAYWOOD COUNTY, a North Carolina Non-Profit Corporation, and The Town of Waynesville, by and through its Board of Aldermen, a body politic organized and existing under the laws of the State of North Carolina, Defendants.

No. COA00-404.

Court of Appeals of North Carolina.

June 5, 2001.

The Frue Law Firm, P.A., by William C. Frue, Jr. and Michael C. Frue, Asheville, for the plaintiff-appellant.

McGuire, Wood & Bissette, P.A., by Grant B. Osborne, Asheville, for the defendant-appellee Community Housing Corporation of Haywood County.

Brown, Queen, Patten & Jenkins, PA, by Frank G. Queen, and Brown, Ward & Haynes, P.A., by Michael L. Bonfoey, Waynesville, for the defendant-appellee Town of Waynesville.

WYNN, Judge.

The plaintiff brought this action under the North Carolina Uniform Declaratory Judgment Act, N.C. Gen.Stat. §§ 1-253 et seq. (1996), to contest the validity of a proceeding to close a thirty-foot wide strip of land adjacent to her property located in Waynesville. The defendant Community Housing Corporation of Haywood County claims title to property adjacent to plaintiff's property, including a portion of the disputed thirty-foot wide strip of land.

The complaint filed on 13 November 1998 alleges that on 14 July 1997, defendant Town of Waynesville attempted to close a portion of said strip of land, a purported street, by passing an ordinance pursuant to N.C. Gen. Stat. § 160A-299 (1994). The complaint alleges that plaintiff has a property right amounting to a private easement in the strip of land, and that she was not provided the required notice of Waynesville's intent to close the property to which she was entitled by law. The complaint further alleges that Waynesville acted improperly in purporting to close the strip of land, and in doing so Waynesville "purported to deprive Plaintiff of her right of access and use of the private easement adjoining her property" in a manner violative of plaintiff's property rights and her right to due process. The plaintiff further claims possession of a "permanent easement of right of way by estoppel" superior to the fee simple rights of the owner of the property.

Waynesville filed a Motion to Dismiss and Answer on 31 December 1998, wherein it asserted the complaint failed to state a claim upon which relief can be granted, and asserted the statute of limitations as an affirmative defense. Community Housing Corporation filed an answer in which it also asserted a Rule 12(b)(6) motion to dismiss for failure to state a claim. Community Housing Corporation subsequently filed a motion for summary judgment dated 28 September 1999, which motion was heard on 11 October 1999. The trial court entered an order of summary judgment on 18 October 1999 in favor of Community Housing Corporation. On 26 October 1999, the trial court entered an order purporting to grant summary judgment in favor of Waynesville. From these two orders, the plaintiff appeals.

We first consider Community Housing Corporation's motion, filed 31 July 2000, to dismiss the plaintiff's appeal, based upon her failure to comply with our Rules of Appellate Procedure.

The plaintiff filed a notice of appeal on 9 November 1999. On 5 January 2000, plaintiff served defendants with a proposed record on appeal, to which Community Housing Corporation filed certain objections. The plaintiff, on 2 February 2000, timely served by mail a request to settle the record on appeal; this request was sent to both defendants and to Judge Zoro J. Guice, Jr., and was filed in the Superior Court, Haywood County on 2 February 2000.

Thirty days later, on 3 March 2000, plaintiff filed a notice of hearing on her request to settle the record on appeal, advising that the hearing to settle the record would be conducted on 17 March 2000. On 17 March 2000, Judge Guice signed an order purporting to extend the time to settle the record on appeal; no filing stamp appears on this order. It appears as though the trial court conducted a hearing to settle the record on appeal on 17 March 2000, following which the court, on 28 March 2000, filed an order settling the record on appeal. Fifteen days thereafter, on 12 April 2000, the record on appeal was filed with this Court.

The Rules of Appellate Procedure are mandatory, and failure to follow them will subject an appeal to dismissal. See May v. City of Durham, 136 N.C.App. 578, 525 S.E.2d 223 (2000); Bledsoe v. County of Wilkes, 135 N.C.App. 124, 519 S.E.2d 316 (1999); Steingress v. Steingress, 350 N.C. 64, 511 S.E.2d 298 (1999). "The rules are designed to keep the process of perfecting an appeal flowing in an orderly manner." Pollock v. Parnell, 126 N.C.App. 358, 361, 484 S.E.2d 864, 866 (1997). Only those who properly appeal from judgments and orders of the trial court are entitled to relief in the appellate division. See Craver v. Craver, 298 N.C. 231, 258 S.E.2d 357 (1979). Furthermore, it is the appellant who "bears the burden of seeing that the record on appeal is properly settled and filed with this Court." McLeod v. Faust, 92 N.C.App. 370, 371, 374 S.E.2d 417, 418 (1988); see Webb v. McKeel, 132 N.C.App. 817, 817, 513 S.E.2d 596, 597 (1999).

N.C.R.App. P. 11 (2001) states that, following service upon the trial judge of a written request to settle the record on appeal:

The judge shall send written notice to counsel for all parties setting a place and a time for a hearing to settle the record on appeal. The hearing shall be held not later than 15 days after service of the request for hearing upon the judge. The judge shall settle the record on appeal by order entered not more than 20 days after service of the request for hearing upon the judge.

N.C.R.App. P. 11(c). Here, the plaintiff served a request to settle the record upon Judge Guice on 2 February 2000; pursuant to Rule 11(c), a hearing to settle the record should have been held no later than 17 February 2000, and the record should have settled no later than 22 February 2000.

N.C.R.App. P. 27 (2001), which concerns the computation and extension of time under the Rules of Appellate Procedure, provides that, where service is effected by mail, the party required to act within a prescribed period after service thereon shall be allowed an additional three days within which to act. See N.C.R.App. P. 27(b). Accordingly, the hearing on the settling of the record should have occurred no later than 21 February 2000 (as 20 February was a Sunday), and the order settling the record must have been entered no later than 25 February 2000.

Additionally, Rule 11(f) provides for extensions of time pursuant to Rule 27(c). See N.C.R.App. P. 11(f); N.C.R.App. P. 27(c). Rule 27(c) provides that the trial court may, upon motion and for good cause shown, extend any of the times prescribed by the Rules "for doing any act required or allowed" under the Rules. N.C.R.App. P. 27(c). However, the trial court may only consider motions to extend "the time permitted by Rule 11 or Rule 18 for the service of the proposed record on appeal." N.C.R.App. P. 27(c)(1). All other motions for extensions of time "may only be made to the appellate court to which appeal has been taken." N.C.R.App. P. 27(c)(2).

In the instant case, the plaintiff presented no motion, either to the trial court or to this Court, seeking an extension of the time permitted under Rule 11(c) for holding a hearing to settle the record, and for entry of an order settling the record on appeal. Although the record indicates that no such request was ever made, the trial court nonetheless entered an order dated 17 March 2000, which does not appear to have been filed, purporting to extend the time for settling the record on appeal. We note that this order was not timely, and in any event is of no help to plaintiff because it exceeded the authority vested in the trial court to grant extensions. See N.C.R.App. P. 27(c)(2). As plaintiff failed to obtain a proper extension of time pursuant to Rule 27, the hearing held by the trial court to settle the record, and the order filed on 28 March 2000 settling the record, were not timely, and thus violated Rule 11(c). See N.C.R.App. P. 11(c).

Nonetheless, we exercise our discretion pursuant to Rule 2 to suspend the Rules, permitting us to consider the merits of plaintiff's appeal. See N.C.R.App. P. 2 (2001); Onslow County v. Moore, 127 N.C.App. 546, 491 S.E.2d 670 (1997), disc. review allowed, decision vacated and remanded for consideration on the merits, 347 N.C. 672, 500 S.E.2d 88 (1998). Accordingly, Community Housing Corporation's motion to dismiss the appeal is hereby denied.

The plaintiff does not set forth any assignments of error in the record on appeal; however, such assignments are not required where the question presented is whether summary judgment was properly granted. See N.C.R.App. P. 10 (2001); Vernon, Vernon, Wooten, Brown & Andrews v. Miller, 73 N.C.App. 295, 326 S.E.2d 316 (1985); Ellis v. Williams, 319 N.C. 413, 355 S.E.2d 479 (1987). The issues presented to this Court are: (1) Whether there exists a genuine issue of material fact; and (2) Whether the moving party is entitled to judgment as a matter of law. See Miller; Ellis; see also N.C. Gen. Stat. § 1A-1, Rule 56 (2000). We therefore consider plaintiff's appeal as to the orders entered against her in favor of each defendant.

As to Community Housing Corporation, plaintiff's complaint seeks a temporary injunction preventing construction on the disputed thirty-foot wide strip of land. The issuance of this injunction is contingent on the outcome of plaintiff's declaratory judgment action against Waynesville.

The trial court's 26 October 1999 order purporting to grant summary judgment in favor of Waynesville states in relevant part that it is based upon Waynesville's motion:

raised in open court for dismissal based on [the Town of Waynesville's] motion to dismiss and affirmative defense.

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