Knotts v. City of Sanford

• Citation: 541 S.E.2d 517,142 NC App. 91
• Decision Date: 06 February 2001
• Docket Number: No. COA99-1577.,COA99-1577.
• Court: Court of Appeal of North Carolina (US)
• Parties: W. Harvey KNOTTS, & Lula Knotts-Thomas, Plaintiffs, v. CITY OF SANFORD, Defendant.

541 S.E.2d 517

142 NC App. 91

W. Harvey KNOTTS, & Lula Knotts-Thomas, Plaintiffs, v. CITY OF SANFORD, Defendant.

No. COA99-1577.

Court of Appeals of North Carolina.

February 6, 2001.

Law Office of Fred D. Webb, Jr., by Fred D. Webb, Jr., Sanford, for plaintiff-appellants.

City Attorney Susan C. Patterson, Sanford, for defendant-appellee.

SMITH, Judge.

This appeal arises from the trial court's order dissolving a Temporary Restraining Order and allowing defendant City of Sanford's (the City) motion to dismiss. We affirm.

In August 1997, the City's Code Enforcement Officer received a complaint of substantial building code violations at an apartment house located at 400/402 South Steele Street (the property), which is owned by, among others, plaintiff W. Harvey Knotts, Sr. (Mr. Knotts). After investigating the complaint, the City ordered the residents to vacate the property and scheduled a hearing regarding the violations. The hearing was held on 25 August 1997 and was attended by Mr. Knotts. Following the hearing, an order was issued finding the property to be

in such a dilapidated and substandard state of disrepair that it constitutes a fire or safety hazard and is dangerous to life, health, and other property in the immediate vicinity, and is in such a condition as to constitute a public nuisance....

Mr. Knotts was ordered to repair or demolish the structure within ninety days, establishing a deadline of 25 November 1997. Mr. Knotts failed to comply, and on 10 December 1997, the City notified Mr. Knotts that, because of noncompliance, the City was "refer[ring] this matter to the City Council, requesting [ ] an order to proceed with the demolition of this property." On 16 December 1997, the City passed "An Ordinance Directing the Building Inspector/Code Enforcement Officer to Repair or Demolish the Property Herein Described as Unfit for Human Habitation."

On or around 15 January 1998 (R.107), in an action numbered 98 CVS 00046, Mr. Knotts sought a Temporary Restraining Order (TRO), Preliminary Injunction, and additional time to repair the building. The trial court granted the TRO, and on 29 January 1998, the City filed a motion to dissolve the TRO and to dismiss the complaint. The motion was heard on 2 February 1998, at which time the parties entered a Consent Order, which required the following:

1. That plaintiff shall present to defendant a complete set of sealed plans to correct all minimum housing code violations in accordance with the North Carolina State Building Code from an architect or engineer and a signed contract with a construction time table from a licensed general contractor on or before March 4, 1998;

2. That plaintiff shall have all repair work or demolition completed in accordance with the North Carolina State Building Code and a certificate of occupancy issued on the said property by June 30, 1998;

3. That defendant shall award completed bids for demolition of the said property and proceed to have the property demolished if plaintiff fails to meet the requirements of "1" or "2" of this Order hereinabove and plaintiff shall file a voluntary dismissal with prejudice in this matter.

4. That defendant shall issue a licensed contractor employed by plaintiff a building permit in accordance with City of Sanford permit application process upon plaintiff providing defendant with a complete set of sealed plans and a signed construction contract from a licensed general contractor with construction timetables as provided in paragraph one (1) of this Order.

Mr. Knotts failed to comply with the Consent Order, and the City again proceeded with demolition.

On 23 March 1998, Mr. Knotts filed a Motion for Relief from the Consent Order based on mistake, inadvertence, and excusable neglect. The matter was heard on 30 November 1998, and on 3 December 1998, the trial court denied Mr. Knotts' motion and ordered the City to proceed with demolition. Mr. Knotts appealed to this Court, but after first filing an unsettled record and then tardily filing a corrected record, this Court allowed the City's Motion to Dismiss Mr. Knotts' appeal.

Because the bids to demolish the property had expired, on 20 July 1999, the City Council awarded a re-bid to Kitts Grading. After sending notice to Mr. Knotts and allowing him the opportunity to demolish the structure, a contract was signed to begin demolition on 3 August 1999.

On 26 July 1999, Mr. Knotts and his daughter, plaintiff Lula Knotts-Thomas (Ms. Thomas), filed a complaint in the instant action seeking a TRO, preliminary injunction, and compensation for the alleged taking of the property. On 2 August 1999 (filed 3 August), the trial court granted the TRO and scheduled a hearing on the request for preliminary injunction for 3 August 1999. On 3 August, the City filed a motion to dismiss on the grounds of lack of subject matter jurisdiction, res judicata, improper purpose in filing the action, failure to join necessary parties, failure to state a claim upon which relief can be granted, and irreparable harm to the citizens of the City. On 21 October 1999, the trial court dissolved the TRO, allowed the City's motion to dismiss, and stayed the demolition of the property pending appeal to this Court. From the order of dismissal, plaintiffs appeal.

Initially, we note that plaintiffs have failed to comply with the Rules of Appellate Procedure in several respects. First, the assignments of error in the record on appeal fail to make reference to the record page numbers where we may find the alleged error. See N.C. R.App. P. 10(c)(1) (Assignments of error must contain "clear and specific record or transcript references."). Second, the majority of the facts set forth in plaintiffs' brief are unaccompanied by references to the record and/or transcript in violation of N.C. R.App. P. 28(b)(4) (The statement of facts should be "supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits, as the case may be."). Finally, plaintiffs' arguments in the body of their brief are not followed by references to the assignments of error in violation of N.C. R.App. P. 28(b)(5) ("Immediately following each question [presented] shall be a reference to the assignments of error pertinent to the question, identified by their numbers and by the pages at which they appear in the printed record on appeal").

Our rules of appellate procedure are mandatory, and failure to comply therewith subjects an appeal to dismissal. See Bledsoe v. County of Wilkes, 135 N.C.App. 124, 125, 519 S.E.2d 316, 317 (1999) (per curiam)

(dismissing appeal for appellate rules violations). Nonetheless, pursuant to N.C. R.App. P. 2, we have exercised our discretionary power and reached the merits of plaintiffs' appeal.

I.

Plaintiffs first contend "[t]he [trial] [c]ourt erred in dismissing Plaintiff's [sic] Temporary Restraining Order." Their argument on appeal, however, focuses solely on the trial court's refusal to award plaintiffs a preliminary injunction. As plaintiffs failed to assign error to the trial court's refusal to grant plaintiffs' request for preliminary injunction, we will not entertain this argument on appeal.

Under N.C. Gen.Stat. § 1A-1, Rule 65(b) (1999), a TRO is a temporary measure that is in place only until a hearing can be held on a preliminary injunction and is properly dissolved if the preliminary injunction is not granted. Accordingly, plaintiffs' argument is without merit, and this assignment of error is overruled.

II.

Plaintiffs next contend the trial court erred in granting the City's motion to dismiss pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) (1999) (failure to state a claim upon which relief may be granted). Plaintiffs contend this was error because "the complaint affirmatively alleges a taking in violation of the Plaintiff's [sic] constitutional rights without just compensation." However, the trial court granted the City's motion based on res judicata, lack of subject matter jurisdiction, and Rule 12(b)(6), and plaintiffs have failed to assign error to the trial court's grant of the City's motion on the grounds of either res judicata or lack of subject matter jurisdiction. Accordingly, even if we were to find error in the trial court's dismissal based upon Rule 12(b)(6), which we expressly decline to do, see Harrell v. City of Winston-Salem, 22 N.C.App. 386, 392, 206 S.E.2d 802, 806 (1974)

(stating that the city's police power, which has been delegated by the State, permits the prohibition of use of private property that may threaten the public health, safety, or morals or the general welfare and, when so exercised, the owner need not be compensated, even though the property is thereby rendered substantially worthless), the trial court's order dismissing plaintiffs' complaint would still stand on the alternative grounds.

For instance, "[u]nder the doctrine of res judicata, `a final judgment on the merits in a prior action will prevent a second suit based on the same cause of action between the same parties or those in privity with them' if all relevant and material matters, in the exercise of reasonable diligence of the parties, could and should have been brought forward." McGowan v. Argo Travel Inc., 131 N.C.App. 694, 695, 507 S.E.2d 601, 601 (1998) (citations omitted). Because this case presents the same issues (or those that could have been raised) between the same parties or their privies as were finally decided in the previous case, the trial court properly dismissed plaintiffs' complaint on res judicata grounds. Accordingly, this assignment of error is overruled.

III.

Finally, plaintiffs assign error to "[t]he [c]ourt's hearing of defendant's motion to [d]ismiss the Complaint pursuant to Rule 12(b)(6) of the North Carolina...