Citizens Addressing Reassignment & Education, Inc. v. Wake County Board of Education

JACKSON, Judge

concurring in part and dissenting in part.

I concur with the majority’s conclusion that the issue of plaintiffs’ request for a declaratory judgment that the construction of the modular school facility violates section 115C-521(d) is moot. However, for the reasons stated below, I believe the majority unnecessarily addressed plaintiffs’ request for a declaratory judgment voiding the lease with the Association and for an injunction prohibiting future leases. I would hold the trial court properly found the doctrine of laches to be applicable, and that these issues are moot due to the passage of time.

“In equity, where lapse of time has resulted in some change in the condition of the property or in the relations of the parties which would make it unjust to permit the prosecution of the claim, the doctrine of laches will be applied.” Teachey v. Gurley, 214 N.C. 288, 294 , 199 S.E. 83, 88 (1938). Thus, a determination of whether a delay constitutes laches will depend upon the facts and circumstances of the specific case. Id.

When laches is raised, an appellate court faces “a three-fold question: (1) Do the pleadings, affidavits and exhibits show any dispute as to the facts upon which defendants rely to show laches on the part of plaintiffs? (2) If not, do the undisputed facts, if true, establish plaintiffs’ laches? (3) If so, is it appropriate that defendants’ motion for summary judgment, made under G.S. 1A-1, Rule 56(b), be granted?”

*249 Save Our Schools of Bladen Cty. v. Bladen Cty. Bd. of Educ., 140 N.C. App. 233, 236 , 535 S.E.2d 906, 909 (2000) (quoting Taylor v. City of Raleigh, 290 N.C. 608, 621 , 227 S.E.2d 576, 584 (1976)).

Here, the basic facts of the case are undisputed. The Wake County Board of Education first publicized the possibility of placing a modular school facility on the DuBois property in January 2005 when it requested that the Wake County Board of Commissioners approve a three year lease of the DuBois site. On 1 March 2005, the Board executed a two year lease for the installation of the modular school facility at the DuBois site. However, plaintiffs did not initiate the instant action until three months after the subject lease was signed, and just over two months before the school was set to begin operation in the modular buildings on the leased property. A final judgment in the action was rendered at a hearing held 29 July 2005, and plaintiffs filed their Notice of Appeal one month later on 29 August 2005. The record on appeal was settled and filed with this Court on 23 January 2006, several months after children began attending school on the premises, and almost ten months after defendant began paying rent on the leased realty. The instant case was not argued before this Court until 16 August 2006. By this time, defendant had entered into the second year of the two year lease agreement, and again, children were preparing to begin a new school year at the site. In addition, by the time this opinion is rendered, only three to four months will remain in the 2006-07 school year.

At no time did plaintiffs make any effort to expedite our review of this matter. Plaintiffs failed to file any motions or petitions with this Court asking us to review the substantive issues of the case in an expedited time frame in order for the parties to receive a resolution to the matter in a timely fashion. Rule 2 of our appellate rules specifically provides that this Court may suspend or vary the appellate rules and their requirements “[t]o prevent manifest injustice to a party, or to expedite decision in the public interest." N.C. R. App. P. 2 (emphasis added). While this Court may invoke Rule 2 upon our own initiative, a party also is entitled to ask this Court to invoke the Rule, see N.C. R. App. P. 2, however plaintiffs never attempted to do so in this case. Based upon these facts, I would hold that the undisputed facts of the case establish laches, which serves as a bar to plaintiffs’ claims given that they knew of the existence of the grounds for their claim as early as March, if not January, of 2005, but chose to take no action. See Save Our Schools, 140 N.C. App. at 236 , 535 S.E.2d at 909 .

*250 In addition, as cited by the majority, “[a] case is considered moot when ‘a détermination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.’ ” Lange v. Lange, 357 N.C. 645, 647 , 588 S.E.2d 877, 879 (2003) (quoting Roberts v. Madison County Realtors Assn., 344 N.C. 394, 398-99 , 474 S.E.2d 783, 787 (1996)). In the instant action, there remain only a few months on the lease at issue. Our rendering the lease void at this time would have little practical effect on the existing controversy, as the lease likely would expire before the children and modular buildings could be moved from the property. This could not be done without great expense, which would contradict plaintiffs’ purposes in filing the instant action. “It is quite obvious that a court cannot restrain the doing of that which has been already consummated.” Austin v. Dare County, 240 N.C. 662, 663 , 83 S.E.2d 702, 703 (1954). As defendant already has entered into, and effectively performed a majority of the lease agreement in question, this Court may not now render a decision on the validity of the lease.

For these reasons, I would decline to address the issues of plaintiffs’ request for a declaratory judgment voiding the lease with the Association and for an injunction prohibiting future lease payments, as these issues are now moot.