Opinion
No. COA11-68
Filed 16 August 2011 This case not for publication
Appeal by defendants from judgment and order entered 4 August 2010 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 June 2011.
Cranford, Buckley, Schultze, Tomchin, Allen Buie, by Charles R. Buckley, III, for plaintiff-appellee. Blanco, Tackabery, Matamoros, P.A., by Jennifer L. Kerrigan and Peter J. Juran, for defendant-appellants.
Mecklenburg County No. 07-CVS-7662.
Where the trial court failed to follow our mandate issued in Town of Matthews v. Wright, 194 N.C. App. 552, 669 S.E.2d 841 (2008), we reverse and remand for further findings of fact to determine whether a street was impliedly dedicated to the Town of Matthews.
Facts and Procedural History
On 19 April 2007, the Town of Matthews (plaintiff), a North Carolina municipal corporation, filed a complaint against Lester E. Wright and Virginia J. Wright (defendants) alleging that on 25 September 2006, defendants had erected "two (2) signs and a fence located in the right-of-way of the Town street designated as Home Place[.]" Plaintiff requested a mandatory injunction requiring defendants to remove the two signs and fence and that "they cease and desist from further placement of obstructions within the right-of-way and street designated as Home Place." Defendants filed an answer with the affirmative defenses of res judicata, collateral estoppel, unclean hands, denial of due process, estoppel, failure to state a claim, and misconduct. Under their res judicata defense, defendants contended that the issue of whether Home Place was a public road had been fully litigated through final judgment and appeal with a ruling from this Court on 4 April 2006 in Wright v. Town of Matthews, 177 N.C. App. 1, 627 S.E.2d 650 (2006) ( Wright I).
In Wright I, defendants appealed an order of the trial court affirming a decision by the Zoning Board of Adjustment for plaintiff. The order concluded that "the Board's decision determining that [plaintiff] had a public right-of-way across [defendants'] real property was supported by competent, substantial, and material evidence in the whole record." Id. at 2, 627 S.E.2d at 653. Our Court in Wright I noted that "[a] private right-of-way or street may become a public street by one of three methods: (1) in regular proceedings before a proper tribunal . . .; (2) by prescription; or (3) through action by the owner, such as dedication, gift or sale." Id. at 10, 627 S.E.2d at 658. We held that there was insufficient evidence for the trial court to find Home Place to be a public street. Our Court in Wright I reversed and remanded the trial court's decision "for further findings detailing whether or not Home Place became a public street by means of implied dedication" after ruling out the other methods of how a private right-of-way or street may become a public street. Id. at 14, 627 S.E.2d at 660.
In October 2007, defendants moved for partial summary judgment arguing that a ruling by our Court in Wright I determined that "Home Place did not become a public street either by express dedication or by prescription." Following a hearing, the trial court entered an order of partial summary judgment on 7 December 2011. The trial court found that "the record before [the trial court] including but not limited to the ruling of the Court of Appeals of April 4th, 2006, the Ruling of [the Superior Court] of July 10th, 2006, and the action of the [plaintiff] on August 10th, 2006, establishes that Home Place is a private road." It concluded the following, in pertinent part:
1. Summary judgment is granted in favor of Defendants on Plaintiff's claims, and Plaintiff's claim is dismissed.
2. Home Place is a private road.
3. Defendants' motion for Partial Summary Judgment as to the counterclaims is denied as to any remedies.
The trial court certified the summary judgment order as a final order, finding that there was no just reason for delay in the certification, pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure. Plaintiff appealed. Our Court, in Town of Matthews v. Wright, 194 N.C. App. 552, 669 S.E.2d 841 (2008) ( Wright II), held that there were no findings of fact made as to "whether Home Place was impliedly dedicated to the public; therefore, there was no final adjudication as to whether Home Place was a public or private street." Id. at 556, 669 S.E.2d at 843. We concluded that "the trial court erred in granting summary judgment and concluding that Home Place was a private road. Consistent with the holding in Wright I, we remand[ed] for further findings of fact as to whether Home Place was impliedly dedicated as a public street." Id. at 556, 669 S.E.2d at 844.
After a bench trial, on 4 August 2010, the trial court entered a judgment and order finding Home Place to be a public street. The trial court found the following, in pertinent part:
9. Wright I and Wright II . . . ultimately held that more information was necessary on the question of implied dedication while ruling out [express] dedication and prescription.
10. The Court of Appeals in Wright I and Wright II held that there was no evidence in the record that Home Place was ever the subject of a condemnation proceeding or any other proceeding regularly constituted before the proper tribunal. West v. Slick, 313 NC 33; 326 S.E.2d 601 (1995).
11. This Court finds that on March 25, 1985, at a duly constituted regular meeting of the Town of Matthews Board of Commissioners that a resolution adding streets to the Town of Matthews street system was passed by the Board and that this resolution included Home Place.
12. This Court further finds that, at that same duly constituted regular meeting, a second resolution adding streets to the Town of Matthews street system was also adopted and this second resolution requested the State to delete a number of streets from the State system and resolved that such streets be added to the Plaintiff, Town of Matthews, street system and this second resolution did not include Home Place.
. . . .
14. At no time subsequent to 1985, did the Defendants bring an action for inverse condemnation or refuse services provided by the Town of Matthews with respect to the upkeep and maintenance of Home Place and, as a fact, Home Place is a public street and has been such since [a] regularly constituted proceeding before a proper tribunal in March 1985.
The trial court concluded that Home Place was a public street and that it "was brought about on March 25, 1985, by a resolution at a duly constituted regular meeting of [plaintiff's] Board of Commissioners based upon which streets were added to the [plaintiff,] which resolution included Home Place." In its order, the trial court granted plaintiff's injunctive relief, defendants were ordered to remove the two signs and the fence on Home Place, and defendants' counterclaims were dismissed with prejudice. The order was certified as final pursuant to Rule 54. From this order, defendants appeal.
On appeal, defendants raise three arguments: (I) whether the trial court erred by allowing plaintiff to present evidence outside the scope of our Court's remand; (II) whether the trial court erred by failing to find that Home Place is a private road; and (III) whether a new trial is required.
I
Defendants argue that the trial court erred by allowing plaintiff to present evidence outside the scope of our Court's remand in Wright II. Defendants contend that although our Court has remanded this case twice for further findings on the issue of whether Home Place was impliedly dedicated as a public street, plaintiff has twice now ignored the directive of the Court. We agree.
"In our judicial system, the Superior Court is a court subordinate to the [appellate courts.]" D W, Inc. v. Charlotte, 268 N.C. 720, 722, 152 S.E.2d 199, 202 (1966).
The questions raised in the present appeal must be viewed in the light of the rule that a decision of this Court on former appeal constitutes the law of the case in respect to questions therein presented and decided, both in subsequent proceedings in the trial court and on subsequent appeal when the same matters are involved.
Collins v. Simms, 257 N.C. 1, 3, 125 S.E.2d 298, 300 (1962) (citations omitted). "[O]ur mandate is binding upon [the trial court] and must be strictly followed without variation or departure. No judgment other than that directed or permitted by the appellate court may be entered." In re S.R.G., 200 N.C. App. 594, 598, 684 S.E.2d 902, 904 (2009) (citing D W, Inc. v. Charlotte, 268 N.C. 720, 722, 152 S.E.2d 199, 202 (1966)).
In Wright II, this Court held that "[t]he record before us indicates that no findings of fact were made as to whether Home Place was impliedly dedicated to the public; therefore, there was no final adjudication as to whether Home Place was a public or private street." Town of Matthews, 194 N.C. App. at 556, 669 S.E.2d at 843. As a result, we held the trial court erred in granting summary judgment and concluding that Home Place was a private road. Id. at 556, 669 S.E.2d at 844. Our mandate to the trial court, in reversing and remanding its decision, was for the limited purpose of making further findings of fact as to whether Home Place was impliedly dedicated as a public street.
At the 21 July 2010 hearing and in its 4 August 2010 order, the trial court failed to follow the mandate of Wright II. At the 21 July 2010 hearing on this matter, defendants made a continuing objection to any evidence other than the issue of implied dedication. Despite our limited mandate issued in Wright II, plaintiff introduced evidence of minutes of the town board meeting from 25 March 1985, showing that a resolution was adopted adding Home Place as a public street to the town street system. However, in Wright II, we held that the 25 March 1985 resolution adopted nunc pro tunc amounted to a "retroactive resolution to change the street system previously imposed and [was therefore,] invalid." Id. at 556, 669 S.E.2d at 843. In its order, although the trial court stated that the issue was whether Home Place was a public or private street, no findings of fact were made as to whether Home Place was impliedly dedicated as a public street. The trial court merely noted that both Wright I and Wright II remanded the case for further findings detailing whether Home Place became a public street by means of implied dedication. Further, the trial court found the following, in pertinent part:
9. Wright I and Wright II considered the second and third methods in some detail and ultimately held that more information was necessary on the question of implied dedication while ruling out [express] dedication and prescription.
. . .
11. This Court finds that on March 25, 1985, at a duly constituted regular meeting of the Town of Matthews Board of Commissioners that a resolution adding streets to the Town of Matthews street system was passed by the Board and that this resolution included Home Place.
12. This Court further finds that, at that same duly constituted regular meeting, a second resolution adding streets to the Town of Matthews street system was also adopted and this second resolution requested the State to delete a number of streets from the State system and resolved that such streets be added to the Plaintiff, Town of Matthews, street system and this second resolution did not include Home Place.
. . .
14. At no time subsequent to 1985, did the Defendants bring an action for inverse condemnation or refuse services provided by the Town of Matthews with respect to the upkeep and maintenance of Home Place and, as a fact, Home Place is a public street and has been such since [a] regularly constituted proceeding before a proper tribunal in March 1985.
While the trial court concluded that Home Place was a public street, the trial court, nevertheless, failed to follow the mandate of Wright II. Accordingly, we reverse and remand for further findings of fact as to whether Home Place was impliedly dedicated as a public street.
II
In their second argument, defendants contend that the trial court erred by denying their motion to dismiss made at the close of plaintiff's evidence pursuant to North Carolina Rules of Civil Procedure 41(b). Defendants assert that when plaintiff elected to present no evidence of an implied dedication, the trial court should have granted their motion. We agree.
Under Rule 41(b) of the North Carolina Rules of Civil Procedure,
[a]fter the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.
N.C. Gen. Stat. § 1A-1, Rule 41(b) (2009). "Dismissal under Rule 41(b) is left to the sound discretion of the trial court and will not be disturbed on appeal in the absence of a showing of abuse of discretion." In re Pedestrian Walkway Failure, 173 N.C. App. 237, 247, 618 S.E.2d 819, 826 (2005) (citation omitted).
In the instant case, the trial court found that both Wright I and Wright II remanded the case for further findings as to whether Home Place was impliedly dedicated as a public street, while ruling out express dedication and prescription. The trial court also found that "[p]laintiff, Town of Matthews, acknowledged at trial that Home Place was not impliedly dedicated as a public street, but it contends that such concession does not resolve the legal issue in dispute." Despite these findings, the trial court concluded that the 25 March 1985 resolution adopted by the Town of Matthews Board of Commissioners that was previously deemed invalid in Wright II, added Home Place to plaintiff as a public street.
The trial court was not to consider the 25 March 1985 resolution since it amounted to a retroactive resolution and because it found that no evidence of implied dedication was presented, plaintiff failed to show a right to relief under the facts and law. Therefore, we hold the trial court erred by failing to grant defendants' motion to dismiss.
III
Lastly, defendants contend that they were "unduly prejudiced and ambushed at trial." Defendants argue that based on the prior rulings of this Court in Wright I and Wright II, they were not prepared to address issues which had already been determined, but had only prepared for the limited issue of implied dedication. Defendants contend that they are entitled to a new trial due to the "underhanded tactics" of plaintiff. Because defendants' brief of this issue fails to "contain citations of the authorities upon which [they] rel[y]," this argument is dismissed. N.C. R. App. P. 28(b)(6) (2011).
Reversed and remanded.
Judges GEER and BEASLEY concur.
Report per Rule 30(e).