# Brown v. City of Winston-Salem

> Court of Appeals of North Carolina · July 5, 2005 · 171 N.C. App. 266

URL: https://www.frixlaw.com/law-library/cases/9856420

## Case

- **Full name:** DONNA L. BROWN, WESLEY R. BROWN and Wife, MARTEE U. BROWN, JACK M. FISHER and Wife, CATHEY G. FISHER, ANTHONY N. HUBBARD and Wife, FRANCES M. HUBBARD, JAMES M. MECUM, JR., GARNETT L. MIDKIFF, JR., E. RAYMOND NICHOLSON, DONALD W. PETERS, G. FLOYD SIDES and Wife, JO ANN SIDES, Plaintiffs v. CITY OF WINSTON-SALEM, ALLEN JOINES, MAYOR, VIVIAN H. BURKE, DAN BESSE, ROBERT C. CLARK, JOYCELYN v. JOHNSON, NELSON L. MALLOY, JR., VERNON ROBINSON, WANDA MERSCHEL and FREDERICK N. TERRY, CITY COUNCIL MEMBERS, Defendants
- **Court:** Court of Appeals of North Carolina
- **Decided:** July 5, 2005
- **Citations:** 171 N.C. App. 266; 614 S.E.2d 599; 2005 N.C. App. LEXIS 1266
- **Precedential status:** Published
- **Opinion:** Dissent by Steelman
- **Judges:** McCullough, Timmons-Goodson, Steelman
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9856420

## How later opinions describe it (automated extraction)

- holding summary judgment was properly granted when the plaintiff failed to file affidavits contradicting factual matters established by the defendant’s affidavits

## Opinion text

*276 STEELMAN, Judge
dissenting.
I agree with the majority’s discussion of the interlocutory nature of both appeals contained in part II of the opinion, but disagree with the manner in which the majority resolves this issue.
There has been a disturbing trend in recent years of parties appealing interlocutory orders of the trial court where no right of appeal exists under either N.C. Gen. Stat. § 1-277 or N.C. Gen. Stat. § 7A-27(d). As noted by the majority, the parties in this case have candidly acknowledged the questionable legal basis for their appeals. The majority chastises the parties for their conduct and then in the interests of judicial economy utilize Rules 2 and 21 of the North Carolina Rules of Appellate Procedure to hear both appeals. I respectfully suggest that creating a way to hear an improper interlocutory appeal does nothing but encourage such conduct by parties in the future.
Both Rule 2 and Rule 21 are discretionary rules. This Court does have the discretion to hear and rule on both of the appeals in this matter. However, I question the wisdom of doing so in this case. There are numerous appeals which this Court has dismissed as being interlocutory during the year 2005, to date. See e.g. Hinson v. Jarvis, 170 N.C. App. 697 , 614 S.E.2d 608 (2005) (unpublished); State Auto. Mut. Ins. Co. v. Iadanza, 170 N.C. App. 437 , 613 S.E.2d 753 (2005) (unpublished); Grant v. Miller, 170 N.C. App. 184 , 611 S.E.2d 477 (2005); Milton v. Thompson, 170 N.C. App. 176 , 611 S.E.2d 474 (2005); In re B.P., 169 N.C. App. 728, 612 S.E.2d 328 (2005); Atwood v. Eagle, 169 N.C. App. 255, 611 S.E.2d 899 (2005) (unpublished); N.C. Dep’t of Transp. v. Williams, 168 N.C. App. 728 , 609 S.E.2d 498 (2005) (unpublished); Johnson v. Lucas, 168 N.C. App. 515 , 608 S.E.2d 336 (2005); Mech. Sys. & Servs. v. Carolina Air Solutions, 168 N.C. App. 240 , 607 S.E.2d 55 (2005) (unpublished); Neill Grading & Constr. Co. v. Lingafelt, 168 N.C. App. 36 , 606 S.E.2d 734 (2005); Stewart v. N.C. Dep’t of Juvenile Justice, 167 N.C. App. 808 , 606 S.E.2d 458 (2005) (unpublished); Robinson v. Gardner, 167 N.C. App. 763 , 606 S.E.2d 449 (2005).
Unless the Rules of Appellate Procedure are consistently applied they become meaningless. Viar v. N. C. Dep’t of Transp., 359 N. C. 400, 402 , 610 S.E.2d 360, 361 (2005).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9856420. Public record. Not legal advice.