An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-777 NORTH CAROLINA COURT OF APPEALS Filed: 7 January 2014 PHILADELPHUS PRESBYTERIAN FOUNDATION, INC., CHRIS EMANUEL BAXLEY, DANNY BULLARD & SYBIL BULLARD HARRIS, FRASER & HARRIS, LLC, SHELLI BREWINGTON, RICKY LYNN BRITT, PHIL LOCKLEAR & DEBORAH LOCKLEAR, & MELANIE STRICKLAND HUNT, Petitioners
Robeson County v. No. 12 CVS 2097
ROBESON COUNTY BOARD OF ADJUSTMENT, ROBESON COUNTY BOARD OF COMMISSIONERS, ROBESON COUNTY, Respondents
Appeal by petitioners from order entered 21 March 2013 by
Judge Robert F. Floyd, Jr., in Robeson County Superior Court.
Heard in the Court of Appeals 21 November 2013.
J. Gates Harris for Petitioners-Appellants.
Parker Poe Adams & Bernstein, LLP, by Melanie Black Dubis and Matthew H. Mall, for Respondents-Appellees.
ERVIN, Judge.
Petitioners Philadelphus Presbyterian Foundation, Inc.,
Chris Emanuel Baxley, Danny Bullard, Sybil Bullard Harris,
Fraser & Harris, LLC, Shelli Brewington, Ricky Lynn Britt, Phil -2- Locklear, Deborah Locklear, and Melanie Strickland Hunt appeal
from an order dismissing their certiorari petition and denying
their motion to amend the petition in order to add a necessary
party. Although Petitioners concede that they failed to join a
necessary party at the time that they filed their petition, they
contend that the trial court erred by depriving them of the
ability to amend their petition to join the omitted necessary
party and dismissing their petition instead. After careful
consideration of Petitioners’ challenges to the trial court’s
order in light of the record and the applicable law, we conclude
that the trial court’s order should be affirmed.
I. Factual Background
On 2 July 2012, the Robeson County Board of Commissioners
met for the purpose of considering an application filed by Buie
Lakes Plantation, LLC, in which Buie Lakes sought the issuance
of a conditional use permit authorizing the construction of a
sand mining and processing facility. On 16 July 2012,1 a
decision determining that the application was complete, complied
with all applicable land use ordinances, and should be approved
was authenticated by the County clerk. The conditional use
1 Although the Board appears to have approved the permit on 16 July 2012, Buie Lakes did not accept the terms upon which the issuance of the permit was conditioned until 9 August 2012 and the permit was not recorded in the office of the Robeson County Register of Deeds until 13 August 2012. -3- permit that Robeson County voted to approve set forth numerous
detailed conditions to which Buie Lakes would have to assent in
order to be allowed to construct and operate the proposed
facility, including restrictions on the hours during which the
facility was permitted to operate and a prohibition on the
performance of certain blasting operations.
On 1 August 2012, Petitioners filed a petition requesting
the issuance of a writ of certiorari for the purpose of seeking
review of Robeson County’s decision to approve the challenged
conditional use permit and alleging that the issuance of the
challenged conditional use permit was unlawful for numerous
substantive and procedural reasons. On the same date, the Clerk
of Superior Court of Robeson County issued a writ of certiorari
requiring Respondents Robeson County Board of Adjustment and the
Robeson County Commission to prepare and certify a record of the
proceedings leading to the issuance of the disputed conditional
use permit for delivery to the court. On 13 December 2012,
Respondents filed a memorandum in which they disputed the
validity of the arguments advanced in the petition and noted
that, “[c]ontrary to the requirement of N.C. Gen. Stat. §§ 153A- -4- 3549 and 160A-393, Petitioners did not name Buie Lakes
Plantation as a party in the Petition for Writ of Certiorari.”2
The matter came on for hearing before the trial court on 14
February 2013. During the course of this hearing, Respondents
made an oral motion to dismiss the petition as the result of
Petitioners’ failure to join a necessary party under N.C. Gen.
Stat. § 1A-1, Rule 12(b)(7). In response, Petitioners sought
the entry of an order allowing them to amend their petition in
order to name Buie Lakes as a party. At the conclusion of the
hearing, the trial court orally announced that it would deny
Petitioners’ amendment motion and grant Respondents’ dismissal
motion. On 21 March 2013, the trial court entered an order
denying Petitioners’ amendment motion and granting Respondents’
dismissal motion. Petitioners noted an appeal to this Court
from the trial court’s order.
II. Legal Analysis
A. Standard of Review
According to well-established North Carolina law,
“compliance with the requirements for entry of notice of appeal
is jurisdictional” and subject to de novo review. State v. 2 Although Petitioners assert on a number of occasions in their brief that they were not aware of this deficiency in their petition and that they had been surprised when this contention was advanced at the hearing held before the trial court, the record plainly reflects that Respondents raised this issue at least two months before the hearing held in this case. -5- Oates, 366 N.C. 264, 266, 732 S.E.2d 571, 573 (2012) (citing
Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191,
197-98, 657 S.E.2d 361, 365 (2008) and Harris v. Matthews, 361
N.C. 265, 271, 643 S.E.2d 566, 570 (2007)). “A motion to amend
is addressed to the discretion of the court, and its decision
thereon is not subject to review except in case of manifest
abuse.” Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189
S.E.2d 484, 488 (1972).
B. Dismissal of Petition
The issuance of a conditional use permit by a county agency
“shall be subject to review of the superior court in the nature
of certiorari consistent with [N.C. Gen. Stat. §] 153A-354.”
N.C. Gen. Stat. § 153A-340(c1). A petition seeking the issuance
of a writ of certiorari for the purpose of obtaining judicial
review of a decision to approve a conditional use permit must
“be filed with the clerk of superior court within 30 days after
the decision of the board is filed in such office as the
ordinance specifies, or after a written copy thereof is
delivered to every aggrieved party who has filed a written
request for such copy with the secretary or chairman of the
board at the time of its hearing of the case, whichever is
later.” N.C. Gen. Stat. § 153A-345(e2). According to N.C. Gen.
Stat. § 153A-349(a), “[w]henever appeals of quasi-judicial -6- decisions of [county] decision-making boards are to superior
court and in the nature of certiorari as required by this
Article, the provisions of [N.C. Gen. Stat. §] 160A-393 shall be
applicable to those appeals.” Pursuant to N.C. Gen. Stat. §
160A-393(e), “[i]f the petitioner is not the applicant before
the decision-making board whose decision is being appealed, the
petitioner shall . . . name that applicant as a respondent.” As
a result, in order to properly challenge the issuance of the
conditional use permit at issue here, Petitioners were required
to file their petition in a timely manner, which they appear to
have done, and to name Buie Lakes as a party respondent, which
they did not do.
The trial court dismissed the petition with prejudice “for
the failure of the Petitioners to join a necessary party.” In
support of this decision, Respondents cite Whitson v. Camden
Cnty. Bd. of Comm’rs, 2013 N.C. App. LEXIS 766 (2013), in which
this Court upheld the dismissal of a certiorari petition for
lack of subject matter jurisdiction in light of the petitioner’s
failure to name the applicant as a respondent as required by
N.C. Gen. Stat. § 160A-393(a). Although Whitson, as an
unpublished decision, is not binding upon us, e.g. Cary Creek
Ltd. P’ship v. Town of Cary, 203 N.C. App. 99, 106, 690 S.E.2d
549, 554, disc. review denied, 364 N.C. 600, 703 S.E.2d 441 -7- (2010); N.C.R. App. P. 30(e)(3), we conclude that it is
consistent with and compelled by our decision in McCrann v.
Village of Pinehurst, __ N.C. App. __, 716 S.E.2d 667 (2011), in
which the petitioner’s challenge to the issuance of a
conditional use permit was not filed within the thirty day
period specified in N.C. Gen. Stat. § 160A-388(e2) and in which
we held that this deficiency, like the failure to note an appeal
in a timely manner, deprived the reviewing court of any
jurisdiction to hear and determine the issues raised in the
petition. McCrann, __ N.C. App. at __, 716 S.E.2d at 670
(stating that “‘[t]he requirement of timely filing and service
of notice of appeal is jurisdictional, and unless the
requirement[ is] met, the appeal must be dismissed,’” and that
“[w]e see no reason to treat the requirements for timely
‘appeal’ for judicial review . . . differently”) (quoting Reidy
v. Whiteheart Ass’n, 185 N.C. App. 76, 85, 648 S.E.2d 265, 271-
72, disc. review denied, 361 N.C. 696, 652 S.E.2d 651 (2007),
cert. denied, 552 U.S. 1243, 128 S. Ct. 1484, 170 L. Ed. 2d 298
(2008)).
Although the filing of a certiorari petition certainly
bears some resemblance to the institution of a civil action, as
Petitioners implicitly assert, the analogy between an appeal and
a request for certiorari review made in McCrann is clearly the -8- correct one. In such certiorari proceedings, the “superior
court is not a trier of fact, but assumes the posture of an
appellate court.” In re Appeal of Willis, 129 N.C. App. 499,
500, 500 S.E.2d 723, 725 (1998). More specifically, “[i]n
reviewing zoning decisions, the trial court sits in the posture
of an appellate court” and is charged with “‘(1) [r]eviewing the
record for errors in law; (2) insuring that procedures specified
by law in both statute and ordinance are followed; (3) insuring
that appropriate due process rights of a petitioner are
protected, including the right to offer evidence, cross-examine
witnesses and inspect documents; (4) insuring that the decisions
of zoning boards are supported by competent, material and
substantial evidence in the whole record; and (5) insuring that
decisions are not arbitrary and capricious.’” Ball v. Randolph
Cnty. Bd. of Adjustment, 129 N.C. App. 300, 302, 498 S.E.2d 833,
834 (quoting Mize v. Cnty. of Mecklenburg, 80 N.C. App. 279,
284, 341 S.E.2d 767, 770 (1986)), disc. review improvidently
granted, 349 N.C. 348, 507 S.E.2d 272 (1998). For that reason,
we conclude that the extent to which a trial court obtains
jurisdiction to address the issues raised in a certiorari
petition should be analyzed in the same manner as the extent to
which an appellate court obtains jurisdiction over an appeal
from the General Court of Justice or an administrative agency. -9- As the Supreme Court stated approximately a half century
ago, “[t]here is no inherent or inalienable right of appeal from
an inferior court to a superior court or from a superior court
to the Supreme Court,” so that “[n]o appeal lies from an order
or decision of [a subordinate body] unless the right is granted
by statute.” In re Halifax Paper Co., 259 N.C. 589, 592, 131
S.E.2d 441, 444 (1963). In view of the fact that “an appeal is
not a matter of absolute right,” “the appellant must comply with
the statutes and rules of Court as to the time and manner of
taking and perfecting his appeal.” Caudle v. Morris, 158 N.C.
594, 595, 74 S.E. 98, 98 (1912). As a result, given that
Petitioners violated the relevant provisions of N.C. Gen. Stat.
§ 160A-393(e) by failing to name Buie Lakes as a respondent, the
trial court correctly dismissed their certiorari petition for
lack of subject matter jurisdiction. N.C. Cent. Univ. v.
Taylor, 122 N.C. App. 609, 612-13, 471 S.E.2d 115, 118 (1996)
(stating that “[f]ailure to meet the pleading requirements for
this extraordinary writ deprives the superior court of subject
matter jurisdiction of the particular matter over which the
moving party seeks review”), aff’d, 345 N.C. 630, 481 S.E.2d 83
(1997).
C. Denial of Amendment Motion -10- Although they acknowledge that their petition as originally
filed was flawed, Petitioners contend that the trial court erred
by refusing to allow them to amend their petition so as to name
Buie Lakes as a party respondent. In essence, Petitioners argue
that the trial court acquired jurisdiction over the issues
raised by their certiorari petition as a result of the fact that
the petition in question was filed in a timely manner and should
have allowed them to cure the deficiency in their original
petition by amending that filing. We do not find Petitioners’
argument persuasive.
The first, and most serious, problem with Petitioners’
argument is that, for the reasons that we have already
enunciated, the trial court lacked jurisdiction over the issues
raised by the certiorari petition given Petitioners’ failure to
join Buie Lakes as a party respondent. According to well-
established North Carolina law, “‘[i]f a court finds at any
stage of the proceedings that it lacks jurisdiction over the
subject matter of a case, it must dismiss the case for want of
jurisdiction.’” Sarda v. City/Cnty. of Durham Bd. of
Adjustment, 156 N.C. App. 213, 215, 575 S.E.2d 829, 831 (2003)
(quoting State v. Linemann, 135 N.C. App. 734, 739, 522 S.E.2d
781, 785 (1999)). As a result, given that the trial court
lacked jurisdiction over this case as a result of Petitioners’ -11- failure to join Buie Lakes as a party respondent, it also lacked
the authority to allow them to amend their petition to cure this
defect.
In seeking to persuade us to hold that the trial court did
have jurisdiction to allow their amendment motion, Petitioners
argue that the timely filing of their certiorari petition,
standing alone, sufficed to give the trial court jurisdiction
over their challenge to the issuance of the relevant conditional
use permit regardless of their failure to join Buie Lakes as a
party respondent. In support of this proposition, Petitioners
cite N.C. Gen. Stat. § 63-34(a), which provides that a “petition
[challenging a board decision] shall be presented to the court
within 30 days after the decision is filed in the office of the
board.” As a result of the fact that the statutory provision in
question relates exclusively to the adoption of airport zoning
regulations and the fact that Petitioners have completely failed
to satisfy the applicable jurisdictional prerequisites for the
filing of a valid certiorari petition challenging the issuance
of a conditional use permit as set out in N.C. Gen. Stat. §
160A-393(e), Petitioners’ reliance upon N.C. Gen. Stat. § 63-
34(a) is misplaced.
In addition, Petitioners argue that the trial court had the
authority to allow, and was in fact obligated to allow, their -12- amendment motion pursuant to the principles enunciated in our
decision in Mize. In Mize, the petitioners filed a petition
seeking the issuance of a writ of certiorari for the purpose of
challenging a decision that they could no longer use their land
for airport-related purposes. 80 N.C. App. at 280, 341 S.E.2d
at 768. Although the trial court dismissed the petition for
failing to join a necessary party pursuant to N.C. Gen. Stat. §
1A-1, Rule 12(b)(7), id. at 281, 341 S.E.2d at 768, we reversed
that decision on the grounds that a proceeding should only be
dismissed based upon a failure to join a necessary party in the
event that the defect in question could not be cured and that,
since it was possible to join the missing party, the trial court
abused its discretion by dismissing the review proceeding. Id.
at 283-84, 341 S.E.2d at 769-70. Petitioners’ reliance on Mize
is, however, misplaced.
In deciding Mize, this Court specifically noted that:
The language of [N.C. Gen. Stat. §] 153A-345 requires only that any petition seeking review by the superior court be filed with the clerk of superior court within 30 days after the decision of the Board is filed or after a written copy has been delivered to every aggrieved party. The petitioners complied with all the express requirements of this vague statute by filing a petition in Mecklenburg County Superior Court within 30 days of the decision of the Board. -13- Id. at 283, 341 S.E.2d at 769. As a result, although the Mize
petitioners failed to join a necessary party, they did comply
with all of the statutorily prescribed prerequisites for the
filing of a valid certiorari petition. The same is not,
however, true in this case given that Petitioners failed to
comply with the additional statutory requirements for a valid
certiorari petition spelled out in N.C. Gen. Stat. § 160A-393, a
statutory section which was enacted over two decades after the
issuance of our decision in Mize. 2009 N.C. Sess. Laws c. 421,
s. 1(a). As a result, given that the petitioners’ failure to
join a necessary party in Mize did not, unlike the failure to
join a necessary party at issue here, constitute a
jurisdictional defect, Mize provides no basis for an award of
the relief which Petitioners seek in this case.
Moreover, Petitioners contend that the trial court’s
refusal to refrain from allowing Respondents’ dismissal motion
and to allow their amendment motion instead is inconsistent with
the principles enunciated in N.C. Gen. Stat. § 1A-1, Rule 15.
Even assuming that N.C. Gen. Stat. § 1A-1, Rule 15, provided a
basis for the allowance of Petitioners’ amendment motion despite
the fact that the trial court lacked jurisdiction over the
petition due to Petitioners’ failure to join Buie Lakes as a
party respondent and, thus, applies in certiorari proceedings -14- such as this one, we still do not find Petitioners’ argument
persuasive.
As we have previously noted, the North Carolina Rules of
Civil Procedure “govern the procedure in the superior and
district courts of the State of North Carolina in all actions
and proceedings of a civil nature except when a differing
procedure is prescribed by statute,” N.C. Gen. Stat. § 1A-1,
Rule 1, including special proceedings. See Macon v. Edinger,
303 N.C. 274, 279, 278 S.E.2d 256, 259 (1981). However, neither
this Court nor the Supreme Court has ever held that the North
Carolina Rules of Civil Procedure, considered in their entirety,
apply in certiorari proceedings conducted pursuant to N.C. Gen.
Stat. § 160A-393, which, as we have already noted, bear a much
greater resemblance to appellate proceedings than to ordinary
civil actions. Although certain subsections in N.C. Gen. Stat.
§ 160A-393 provide for the utilization of specific provisions of
the North Carolina Rules of Civil Procedure in certiorari
proceedings, e.g., N.C. Gen. Stat. §§ 160A-393(f) (requiring
that service of the writ be effectuated in accordance with N.C.
Gen. Stat. § 1A-1, Rule 4), and 160A-393(h) (providing for the
consideration of intervention petitions in accordance with N.C.
Gen. Stat. § 1A-1, Rule 24), nothing in N.C. Gen. Stat. § 160A-
393 provides for the use of the procedures outlined in N.C. Gen. -15- Stat. § 1A-1, Rule 15, in such proceedings. However, despite
the absence of any statutory justification for concluding that
the principles enunciated in N.C. Gen. Stat. § 1A-1, Rule 15,
should be incorporated into certiorari proceedings conducted
pursuant to N.C. Gen. Stat. § 160A-393, we do agree that some
sort of amendment procedure should, in appropriate
circumstances, be available in such proceedings. As a result,
we will assume, without deciding, that the principles enunciated
in N.C. Gen. Stat. § 1A-1, Rule 15, govern the allowance of
amendment motions in certiorari proceedings conducted pursuant
to N.C. Gen. Stat. § 160A-393.
According to N.C. Gen. Stat. § 1A-1, Rule 15(a), a party to
civil litigation has a right to amend his or her pleading as a
matter of right prior to the service of a responsive pleading.
After that point, however, the party must obtain leave of court
to amend its pleadings, with the trial courts having been
instructed that requested amendments should be “freely”
authorized “when justice so requires.” N.C. Gen. Stat. § 1A-1,
Rule 15(a). “Acceptable reasons for which a motion to amend may
be denied are ‘undue delay, bad faith, dilatory motive, repeated
failure to cure deficiencies, undue prejudice, and futility of
the amendment.’” Nationsbank of N.C., N.A. v. Baines, 116 N.C.
App. 263, 268, 447 S.E.2d 812, 815 (1994) (quoting Coffey v. -16- Coffey, 94 N.C. App. 717, 722, 381 S.E.2d 467, 471 (1989), disc.
review improvidently granted, 326 N.C. 586, 391 S.E.2d 40
(1990)). Although “[a] claim asserted in an amended pleading is
deemed to have been interposed at the time the claim in the
original pleading was interposed, unless the original pleading
does not give notice of the transactions, occurrences, or series
of transactions or occurrences, to be proved pursuant to the
amended pleading,” N.C. Gen. Stat. § 1A-1, Rule 15(c), this
“relation back” rule “does not apply to the naming of a new
party-defendant to the action.” Crossman v. Moore, 341 N.C.
185, 187, 459 S.E.2d 715, 717 (1995); see also Piland v.
Hertford Cnty. Bd. of Comm’rs, 141 N.C. App. 293, 301-02, 539
S.E.2d 669, 674 (2000) (holding that “the plaintiffs’ attempt to
amend the summons and complaint in the instant case by changing
the name of the party-defendant [in a case arising from a
challenge to a rezoning decision] to Hertford County in place of
the Board of Commissioners effectively seeks to add a new party-
defendant rather than merely correct a misnomer, and the
relation-back rule therefore cannot apply”).
Although the trial court did not specify a ground for
denying Petitioners’ amendment motion in its order, the record
clearly reflects that any amendment of the sort which
Petitioners sought leave to make would have been futile. As we -17- have already noted, Petitioners were required to file their
certiorari petition within “30 days after the decision of the
board is filed in such office as the ordinance specifies, or
after a written copy thereof is delivered to every aggrieved
party who has filed a written request for such copy with the
secretary or chairman of the board at the time of its hearing of
the case, whichever is later.” N.C. Gen. Stat. § 153A-345(e2).
Given that the Board of Commissioners voted to approve the
challenged conditional use permit on 2 July 2012 and that the
written order approving the permit was certified on 16 July
2012, the amendment motion appears to have been made long after
the expiration of the thirty day period specified in N.C. Gen.
Stat. § 153A-345(e2). Since the amendment which Petitioners
sought to make effectively added a party to this proceeding and
since amendments adding new parties do not relate back to the
time of the original filing, any amendment of the nature sought
by Petitioners would have been futile. Thus, assuming that N.C.
Gen. Stat. § 1A-1, Rule 15, governs the process of amending a
certiorari petition filed pursuant to N.C. Gen. Stat. § 160A-393
and that, as Petitioners suggest, it provides an independent
basis for the allowance of an amendment motion despite the fact
that the trial court lacked jurisdiction over the underlying
certiorari proceeding, the trial court had ample justification -18- for denying the proposed amendment on futility grounds and did
not, for that reason, err by denying Petitioners’ amendment
motion.
In attempting to persuade us that their amendment was not
subject to denial on futility-related grounds, Petitioners note
that the thirty day period specified in N.C. Gen. Stat. § 153A-
345(e2) did not begin to run until the date upon which the
challenged decision was filed and argue that “the record
prepared by Robeson County even fails to show when the time to
file the petition expired.” The fundamental problem with this
argument is, however, that courts “will not take judicial notice
of a municipal ordinance,” High Point Surplus Co. v. Pleasants,
263 N.C. 587, 591, 139 S.E.2d 892, 895 (1965), and that
compliance with any time limitations applicable to the filing of
a certiorari petition constitutes a requirement which is
jurisdictional in nature. McCrann, __ N.C. App. at __, 716
S.E.2d at 670. As a result of the fact that a valid certiorari
petition must contain sufficient allegations to establish the
court’s jurisdiction, Davis v. Hiatt, 326 N.C. 462, 465, 390
S.E.2d 338, 340 (1990) (stating that, “if a petition alleges
facts sufficient to establish the right of review on
certiorari[,] its validity as a pleading is not impaired by the
fact [that] the petitioner does not specifically pray that the -19- court issue a writ of certiorari”), and the fact that a
“[f]ailure to meet the pleading requirements for this
extraordinary writ deprives the superior court of subject matter
jurisdiction of the particular matter over which the moving
party seeks review,” N.C. Cen. Univ., 122 N.C. App. at 613, 471
S.E.2d at 118, the trial court lacked jurisdiction to consider
the substantive allegations of the petition in the absence of an
allegation and proof that the petition had been filed in a
timely manner. In view of the fact that Petitioner failed to
allege or prove the nature of the act which triggered the
running of the thirty day period set out in N.C. Gen. Stat. §
153A-345(e2) as set out in the applicable Robeson County
ordinance and the fact that the applicable thirty day period
would have expired well before the date upon which Petitioners
sought leave to amend their petition to add Buie Lakes as a
party respondent on the basis of any of the dates specified in
or inferable from the petition, the fact that the record does
not definitively establish the date upon which the challenged
conditional use permit was filed or served cuts against, rather
than in favor of, Petitioners’ position. As a result, none of
Petitioners’ challenges to the denial of their amendment motion
have merit.
III. Conclusion -20- Thus, for the reasons set forth above, we conclude that
none of Petitioners’ challenges to the trial court’s order have
merit. As a result, the trial court’s order should be, and
hereby is, affirmed.
AFFIRMED.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).