Dismissal of an appeal is appropriate “only in the most egregious instances of non-jurisdictional default[.]”
How later courts described this case
- Dismissal of an appeal is appropriate “only in the most egregious instances of non-jurisdictional default[.]”
Written by the judges who cited it.
The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-177
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
KIM CASOLA, ANTONIO CASOLA, A
CASOLA MOTORSPORTS, LLC, d/b/a
TRI-COUNTY MOTOR SPEEDWAY,
Plaintiffs
v. Caldwell County
No. 12 CVS 839
CALDWELL COUNTY, NORTH CAROLINA,
Defendant
Appeal by plaintiffs from order entered 19 August 2013 by
Judge Timothy S. Kincaid in Caldwell County Superior Court.
Heard in the Court of Appeals 4 June 2014.
W. Wallace Respess, Jr., for plaintiff-appellants.
Davis and Hamrick, L.L.P., by Ann C. Rowe, and Wilson,
Lackey & Rohr, P.C., by David S. Lackey, for defendant-
appellee.
CALABRIA, Judge.
Kim and Antonio Casola (“the Casolas”) and A Casola
Motorsports, LLC, d/b/a Tri-County Motor Speedway (“the
Speedway”) (collectively “plaintiffs”) appeal from the trial
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court’s order granting summary judgment in favor of Caldwell
County, North Carolina (“the County” or “defendant”). We affirm.
I. Background
The Casolas own and operate the Speedway, a racetrack which
is located in an area that is zoned primarily for residential
and agricultural use pursuant to defendant’s zoning ordinance.
The Speedway has operated as a grandfathered nonconforming use
since the adoption of the zoning ordinance in 1990.
During its operation, the Speedway has been the subject of
multiple complaints from residents in the surrounding community,
who allege that the noise from the Speedway interferes with the
enjoyment of their homes. In 2009, defendant conducted a study
of the noise levels coming from the Speedway and another
racetrack in the County. In December 2009, the Caldwell County
Board of Commissioners (“the Board”) scheduled a public hearing
regarding a proposed ordinance (“the ordinance”) designed to
limit the dates and times racing was allowed at the studied
racetracks. Specifically, the ordinance permitted racing,
testing, and practice (1) only during the months of March-
October and (2) only on Thursdays, Fridays and Saturdays,
limited to two of those days per week. At the conclusion of the
public hearing on 7 December 2009, the Board voted unanimously
to enact the ordinance. The Board amended the ordinance on 21
December 2009 to exempt race events that had been scheduled
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prior to the effective date of the ordinance and to allow the
Board to grant special use permits for the raceways to operate
at times not otherwise permitted by the ordinance.
Shortly thereafter, plaintiffs filed a complaint
challenging the ordinance in Caldwell County Superior Court.
Plaintiffs voluntarily dismissed this complaint without
prejudice on 14 January 2011. On 18 June 2012, plaintiffs filed
a new complaint seeking to have the ordinance declared void.
Specifically, plaintiffs’ complaint alleged that the ordinance
was invalid because it violated plaintiffs’ due process and
equal protection rights, state regulatory laws, and state zoning
laws. On 10 July 2013, defendant filed a motion for summary
judgment. After a hearing on the motion, the trial court
entered an order granting summary judgment in favor of defendant
on 19 August 2013. Plaintiffs appeal.
II. Rule Violations
As an initial matter, we are compelled to address the
numerous violations of the Rules of Appellate Procedure by
plaintiffs. Plaintiffs’ brief fails to include a statement of
the issues presented for review, a statement of the procedural
history, a statement of the grounds for appellate review, and a
full and complete statement of the facts, all of which are
required by N.C.R. App. P. 28(b) (2013). Nonetheless,
plaintiffs’ rule violations are not so egregious as to require
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dismissal of this appeal. See Dogwood Dev. & Mgmt. Co., LLC v.
White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 366
(2008) (Dismissal of an appeal is appropriate “only in the most
egregious instances of non-jurisdictional default[.]”).
However, we admonish plaintiffs’ counsel to ensure compliance
with the Rules of Appellate Procedure in the future.
III. Standard of Review
“Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the record
shows 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.’” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,
576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649
S.E.2d 382, 385 (2007)). When a motion for summary judgment is
accompanied by supporting affidavits, “an adverse party may not
rest upon the mere allegations or denials of his pleading, but
his response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a
genuine issue for trial.” N.C. Gen. Stat. § 1A-1, Rule 56(e)
(2013).
IV. Rational Basis
Plaintiffs argue that the trial court erred by granting
summary judgment in favor of defendant as to their claim that
the ordinance violated their constitutional rights because there
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is a genuine issue of material fact as to whether any rational
basis for the ordinance exists. We disagree.
Pursuant to N.C. Gen. Stat. § 153A-133 (2013), “[a] county
may by ordinance regulate, restrict, or prohibit the production
or emission of noises or amplified speech, music, or other
sounds that tend to annoy, disturb, or frighten its citizens.”
Counties may also “regulate and license occupations, businesses,
trades, professions, and forms of amusement or entertainment and
prohibit those that may be inimical to the public health,
welfare, safety, order, or convenience.” N.C. Gen. Stat. § 153A-
134 (2013).
[W]hen the exercise of the police power is
challenged on constitutional grounds, the
validity of the police regulation primarily
depends on whether under all the surrounding
circumstances and particular facts of the
case the regulation is . . . reasonably
calculated to accomplish a purpose falling
within the legitimate scope of the police
power, without burdening unduly the person
or corporation affected.
Winston-Salem v. R.R., 248 N.C. 637, 642, 105 S.E. 2d 37, 41
(1958).
In the instant case, plaintiffs contend that the ordinance,
which limits the dates and times in which the racetrack may
operate, does not have a legitimate purpose and further lacks a
rational basis for differentiating between the times racing is
allowed and the times when it is not. However, in support of
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its motion for summary judgment, defendant provided multiple
affidavits which explained the nature of the citizen complaints
which provided the impetus for the ordinance as well as
explaining that the time limitations imposed by the ordinance
were consistent with the historical uses of the Speedway. These
affidavits sufficiently demonstrated that defendant was acting
within its police powers when enacting the ordinance and that
the ordinance was reasonably calculated to deal with the noise
issues caused by the Speedway while balancing the rights of
plaintiffs to continue the Speedway’s protected historical uses.
Plaintiffs presented no evidence which disputed defendant’s
affidavits, and thus, failed to meet their burden of providing
specific facts which would demonstrate a genuine issue of
material fact regarding whether defendant had either the
authority or a rational basis to enact the ordinance.
Accordingly, the trial court properly granted summary judgment
in favor of defendant as to this issue. This argument is
overruled.
V. Failure to Re-file
Plaintiffs contend that the trial court erred in granting
summary judgment for failure to re-file the action within one
year. We disagree.
Pursuant to N.C. Gen. Stat. § 1-54, the statute of
limitations for “contesting the validity of any zoning or
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unified development ordinance” is one year. N.C. Gen. Stat. § 1-
54(10) (2013). In the instant case, the fourth claim in
plaintiffs’ complaint alleged that the ordinance operated as
unlawful “exclusionary zoning” and “spot zoning.” It is clear
from defendant’s motion for summary judgment and the transcript
from the hearing on the motion that this was the only claim that
related to the trial court’s Rule 41 ruling.1
Plaintiffs’ original complaint was voluntarily dismissed on
14 January 2011. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 41,
when an action is voluntarily dismissed without prejudice, “a
new action based on the same claim may be commenced within one
year after such dismissal . . . .” N.C. Gen. Stat. § 1A-1, Rule
41(a)(1) (2013). “[I]t is well-established that the statute of
limitations is tolled by the filing of a Rule 41(a) voluntary
dismissal, and the plaintiff is not forbidden from subsequently
refiling an action outside the statute of limitations period but
within the period proscribed by Rule 41(a).” Keyzer v.
Amerlink, Ltd., 164 N.C. App. 761, 765, 596 S.E.2d 878, 881
(2004). However, plaintiffs did not re-file a new complaint
until 18 June 2012, approximately eighteen months after they
filed their voluntary dismissal. Therefore, the tolling
provision of Rule 41 was no longer applicable and plaintiffs’
1
The trial court’s order did not specifically refer to Rule 41,
but the rule was referred to when the court orally rendered its
decision at the conclusion of the summary judgment hearing.
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claim that the ordinance was an invalid zoning ordinance was
barred by the statute of limitations. Accordingly, the trial
court properly granted summary judgment in favor of defendant as
to this claim. This argument is overruled.
VI. Non-Conforming Use
Finally, plaintiffs argue that there is a genuine issue of
material fact as to whether the ordinance deprived plaintiffs of
their grandfathered rights in a non-conforming use. However, as
noted above, defendant submitted multiple affidavits which
averred that the Speedway typically only operated during the
days and times which were still permitted by the ordinance.
Plaintiffs provided no evidence which contradicted these
affidavits. Thus, plaintiffs failed to demonstrate a genuine
issue of material fact as to this issue, and the trial court
properly granted summary judgment in favor of defendant. This
argument is overruled.
VII. Conclusion
Plaintiffs failed to meet their burden of demonstrating a
genuine issue of material fact as to whether defendant had a
rational basis for enacting the ordinance. In addition,
plaintiffs failed to properly re-file their claim alleging a
violation of state zoning laws within the applicable statute of
limitations. Finally, plaintiffs failed to establish a genuine
issue of material fact as to the alleged deprivation of their
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rights in a grandfathered nonconforming use of the Speedway.
Consequently, the trial court properly granted summary judgment
in favor of defendant. The trial court’s order is affirmed.
Affirmed.
Judges BRYANT and GEER concur.
Report per Rule 30(e).