Cannon v. N.C. State Board of Education

Judge Wynn

dissenting.

I respectfully dissent because I believe the majority misidentifies the order which was presented for appellate review. The procedural history of this matter is quite complex. On 12 February 1992, plaintiffs filed an action against defendants challenging a plan adopted pursuant to N.C. Gen. Stat. § 115C-68.1 to merge the Durham City and Durham County school systems. The trial court entered judgment for plaintiffs on 14 April 1992 and defendants appealed. (“Cannon I”) On 13 May 1992, both parties petitioned the Supreme Court for review prior to a determination by the Court of Appeals. These petitions were granted on 25 June 1992. On 17 June 1992, the General Assembly enacted Chapter 767 of the 1991 Sessions Laws. Chapter 767 ratified all school merger plans adopted between 9 June 1969 and 26 May 1992, including the Durham merger plan, and declared that the plans were to be “considered to have been adopted by act of the General Assembly.”

On 20 July 1992, the Supreme Court remanded this case to the trial court for reconsideration in light of Chapter 767. After a hearing, the trial court entered an order on 18 September 1992 dismissing plaintiffs’ action as moot. (“Cannon II”) Cannon II is the order presented for review before this Court.

In reviewing Cannon II, the majority reaches back and reviews Cannon I. 1 I believe, however, that the only order presented for our review is the order referred to in plaintiffs’ notice of appeal, Cannon II. The Supreme Court remanded this case to the trial court for reconsideration in light of the enactment of Chapter 767. The trial court then determined that plaintiffs’ claims became moot when Chapter 767 was enacted by the General Assembly. Therefore, the only question before this Court is whether the trial court was correct in concluding that plaintiffs’ claims were moot. See State v. McDowell, 310 N.C. 61 , 310 S.E.2d 301 (1984) (When findings are made in light of a prevailing legal standard, a new explication of the standard requires reconsideration de novo based upon the new explication.); Helms v. Rea, 282 N.C. 610 , 194 S.E.2d 1 (1973) (If a matter is considered under *404 misapprehension of the law it should be remanded for consideration in its true legal light.). I conclude that plaintiffs’ claims became moot after the enactment of Chapter 767 and vote to affirm. See Benvenue Parent-Teacher Ass’n. v. The Nash County Bd. of Educ., 275 N.C. 675 , 170 S.E.2d 473 (1969). (When a development occurs by reason of which the question originally in controversy between the parties is no longer at issue, the appeal will be dismissed as moot.).

The majority concludes that in Cannon I the trial court found that the school merger violates Article I, section 19 and Article IX of the North Carolina Constitution. The majority places great weight on defendants’ failure to cross-assign as error the trial court’s conclusion that the merger violated these constitutional provisions pursuant to N.C. R. App. P. 10(d).

I find, however, that defendants were the appellants with regard to Cannon I and that they properly appealed that order. N.C. R. App. P. 10(d) states in pertinent part: “Without taking an appeal an appellee may cross-assign as error any action or omission of the trial court which was properly preserved for appellate review and which deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken.” (emphasis added). Defendants, as the appellants in Cannon I, were neither required nor expected to make a cross-assignment of error. See generally, Stevenson v. North Carolina Dept. of Ins., 45 N.C. App. 53 , 262 S.E.2d 378 (1980).

For the foregoing reasons, I respectfully dissent.

. While the majority asserts that its primary focus is not on Cannon I, the majority holds “that because, under the ruling of the first trial court, the Durham merger plan violated the North Carolina Constitution, Chapter 767 was ineffective as a curative statute vis a vis the Durham school merger.” Upon remand from the Supreme Court, however, the trial court found the enactment of Chapter 767 made plaintiffs’ claims moot. This ruling replaced the trial court’s previous order upon which the majority relies in reaching its holding.