Land-of-Sky Regional Council v. Henderson County

• Decision Date: 03 December 1985
• Docket Number: No. 8528SC168,LAND-OF-SKY,8528SC168
• Citation: 78 N.C.App. 85,336 S.E.2d 653
• Court: North Carolina Court of Appeals
• Parties: REGIONAL COUNCIL v. COUNTY OF HENDERSON, North Carolina.

Page 653

336 S.E.2d 653

78 N.C.App. 85

LAND-OF-SKY REGIONAL COUNCIL v. COUNTY OF HENDERSON, North Carolina.

No. 8528SC168.

Court of Appeals of North Carolina.

Dec. 3, 1985.

McGuire, Wood, Worley & Bissette by Joseph P. McGuire, Asheville, for plaintiff-appellee.

Morris, Golding, Phillips & Cloninger by William C. Morris, Jr. and William C. Morris, III, and Don Garren, Hendersonville, for defendant-appellant.

JOHNSON, Judge.

The pivotal question we must address is whether plaintiff was entitled to a summary judgment as a matter of law. We conclude that as a matter of law plaintiff was entitled to a summary judgment.

A purpose of G.S. 1A-1, Rule 56, motion for summary judgment is to avoid useless trials when a debtor has chosen to defend rather than default. See Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970). In pertinent part, G.S. 1A-1, Rule 56(c) provides:

The judgment sought shall be rendered forthwith 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 party is entitled to a judgment as a matter of law.

Rule 56(c) N.C. Rules Civ.P. Summary judgment is not a device to resolve factual disputes, however, complex facts and legal issues do not preclude summary judgment. Cook v. Baker Equipment Engineering Co., 431 F.Supp. 517 (1977). The judge's role is to determine if there is a material issue of fact that is triable. Wachovia Mortgage Co. v. Autry-Baker-Spurrier Real Estate, Inc., 39 N.C.App. 1, 249 S.E.2d 727 (1978), aff'd, 297 N.C. 696, 256 S.E.2d 688 (1979). The movant has the burden of convincing the judge there are no triable issues of fact. See Pridgen v. Hughes, supra.

The moving party may have the burden of establishing a lack of triable issues of fact but, the nonmoving party may not rest upon mere allegations of his pleadings. Taylor v. Greensboro News Co., 57 N.C.App. 426, 291 S.E.2d 852, disc. rev. granted, 306 N.C. 751, 295 S.E.2d 486 (1982), appeal dismissed, 307 N.C. 459, 298 S.E.2d 385 (1983). Bearing these principles in mind we turn to the propriety of the court's granting a summary judgment for plaintiff.

Defendant's chief contention is that the minutes of the Henderson County Board of Commissioners do not reflect a joint resolution adopting the method of determining each member government's financial support. A joint resolution creating a regional planning commission should "[s]et out the method of determining the financial support that will be given to the commission by each member government." G.S. 153A-392(3). "The membership, compensation (if any), and terms of a regional economic development commission and the formula for its financial support, shall be fixed by the joint resolution creating the commission." G.S. 158-8. Defendant contends the legal effects of not adhering to the requirements of G.S. 158-8 and G.S. 153A-392 control the disposition of this case.

Essentially the legal effects proposed by defendant are as follows: (1) since there is not a financial formula for each member's contribution adopted in resolution form, plaintiff is improperly organized, and (2) therefore, plaintiff is without the capacity to sue.

The pleadings relied on by plaintiff were supported by affidavits which included uncontradicted accounts of the seven (7) year participation by defendant as a member of the council. Plaintiff also submitted a letter in compliance with G.S. 153A-393 and G.S. 158-8, which was directed by action of the Henderson County Board of Commissioners at a regular meeting on 1 March 1982.

Mr. Charles H. Campbell, Chairman

Land-of-Sky Regional Council

25 Heritage Drive

Asheville, NC 28806

Dear Mr. Campbell:

This letter is in compliance with G.S. 153A-393 and G.S. 158-8 and was directed by action of the Henderson County Board of Commissioners at a regular meeting on March 1st, 1982.

The members of the Land-of-Sky Regional Council are to be advised that the County of Henderson is, as of this date, submitting this written notice of withdrawal from the Land-of-Sky Regional Council.

In a motion approved by a unanimous vote of all members, the Board voted to submit this two-year notice of withdrawal, and stated its desire to see the Council return to the original purpose for which it was organized. If this is accomplished within the next two years, the County will reconsider its decision to withdraw.

Sincerely,

s/ MILDRED O. BARRINGER

Chairman

The stated purpose of the letter is to comply with the statutory scheme for withdrawal by a member government. "A member government may withdraw from a regional planning commission by giving at least two years' written notice to the other counties involved." G.S. 153A-393 (emphasis ours). "Any governmental unit may withdraw from a regional commission on two years' notice to the other members." G.S. 158-8 (emphasis ours). The most significant aspect of this letter is that the Henderson County Board of Commissioners admitted they voted to follow the statutory scheme set forth in G.S. 153A-393 and G.S. 158-8. "In a motion approved by a unanimous vote of all members, the Board voted to submit this two year notice of withdrawal ...." (emphasis ours). Thereafter Henderson County continued to attend plaintiff's meetings, receive the benefit of council programs and otherwise participate as a member of the council.

Henderson County is a corporate body. See O'Neal v. Wake County, 196 N.C. 184, 145 S.E. 28 (1928). On the face of it defendant's answer contends that there are no county board meeting minutes reflecting a resolution which adopts a financial formula for each member's financial contribution. Article VII Section 1 of the Bylaws of plaintiff sets forth the formula for calculating contributions for each member.

Each county shall contribute a share proportionate to the county's proportionate share of the regional population as determined by the most recent decennial census.

Municipal shares shall be determined within each county in a method mutually agreeable to the municipalities and county in which said municipalities are located.

Bylaws Land-of-Sky Regional Council Article VII sec. 1. If these Bylaws were adopted by defendant then the requirements of G.S. 153A-392 and G.S. 158-8 would be met. Thus, defendant is asserting that it was never a member of plaintiff because there are no minutes reflecting an adoption of the Bylaws. In order to take valid action, a board of county commissioners must act in its corporate capacity in a meeting duly held as prescribed by law. See Jefferson Standard Life Ins. Co. v. Guilford County, 226 N.C. 441, 38 S.E.2d 519 (1946). It is important to note that at no point does defendant deny that a vote was taken, or that it intended to become a member of plaintiff.

"Proceeds of a corporate meeting of stockholders or directors are facts and they may be proved by parol testimony when they are not recorded." Tuttle v. Junior Building Corp., 228 N.C. 507, 513, 46 S.E.2d 313, 317 (1948) (citing Bailey v. Hassell, 184 N.C. 450, 115 S.E. 166 (1922)). The failure to record these proceedings is not fatal. Tuttle, 228 N.C. at 513, 46 S.E.2d at 317. There is evidence that the Henderson County Board of Commissioners met and voted to adopt plaintiff's Bylaws. The Bylaws contains the formula for financial contributions by each member. Defendant paid its proportionate share of plaintiff's budget until a letter of withdrawal was submitted. Thereafter, defendant made partial payments and continued to avail itself of emergency medical services and programs for the aged. Defendant continued to be represented at plaintiff's meetings, workshops and training sessions. Two different chairmen of the Henderson County Board of Commissions attended plaintiff's meetings during the two year period of withdrawal.

The most significant evidence is the 8 March 1982 letter from a third chairman of the Henderson County Board of Commissioners. The letter is important for two reasons. The letter is evidence that defendant considered itself a member, subject to the two year withdrawal period. G.S. 153A-393; G.S. 158-8. Defendant was seeking to withdraw from a commitment entered into in 1971. If defendant's joining of plaintiff is lawful and not in violation of constitutional provisions or in contravention of policy it would be capable of ratification. See Jefferson Standard Life Ins. Co., supra. Thus the letter of withdrawal is more than some evidence of the current Board's recognition of the resolution in 1971 which now requires them as a member government to go through a withdrawal procedure. The letter is also a ratification of defendant's acts as a member of plaintiff since 1971. The Henderson County Board of Commissioners unanimously voted to withdraw, but at the same time the Board ratified the actions of the Board in organizing plaintiff in 1971. Defendant urged plaintiff "to return to the original purpose for which it was organized." (emphasis ours).

Defendant asserts that it was beyond the power and authority of its delegates to bind it to plaintiff for support. Liability cannot be incurred for the ultra vires acts of officers or employees of a municipality. Kennerly v. Dallas, 215 N.C. 532, 2 S.E.2d 538 (1939). Defendant would render meaningless a vote by the full Board of Commissioners each year from 1972 to 1982. Each year the Commissioners voted and approved payment to plaintiff for defendant's proportionate share of the budget. We conclude that Henderson County Board of Commissioners had the power to obligate defendant to financially support plaintiff.

On 12 September 1984, defendant filed only one affidavit in opposition to plaintiff's motion for summary judgment. The affiant, Chairman of the ...