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City of Wilmington v. Camera's Eye Inc.

Filed: November 6, 1979.

THE CITY OF WILMINGTON
v.
CAMERA'S EYE, INC.



Appeal by defendant from Tillery, Judge. Judgment entered 2 October 1978 in Superior Court, New Hanover County. Heard in the Court of Appeals on 18 October 1979.

Hedrick, Judge. Judges Clark and Martin (Harry C.) concur.

Hedrick

On 9 October 1979 the plaintiff filed in this Court a motion to dismiss this appeal on the grounds that the issue presented by the appeal has been rendered moot. In support of its motion, plaintiff's attorney averred that he had been advised by the defendant's attorney that the defendant "has vacated the premises . . . as a result of loss of the lease of the property . . . ." Defendant filed a response to the motion wherein it admitted that it had lost its lease and had moved from the premises. However, defendant denies that the matter is therefore rendered moot because of the questions of costs of the action and its potential liability on a supersedeas bond.

In determining the question of mootness, the applicable rule has been well stated as follows:

When, pending an appeal to this Court, a development occurs, by reason of which the questions originally in controversy between the parties are no longer at issue, the appeal will be dismissed for the reason that this Court will not entertain or proceed with a cause merely to determine abstract propositions of law or to determine which party should rightly have won in the lower court.

{PA}

Page 561} State ex rel. Utilities Commission v. Southern Bell Telephone & Telegraph Co., 289 N.C. 286, 288, 221 S.E.2d 322, 324 (1976) [quoting from Parent-Teacher Association v. Board of Education, 275 N.C. 675, 679, 170 S.E.2d 473, 476 (1969)]. See also Davis v. Zoning Board of Adjudgment of Union County, 41 N.C. App. 579, 255 S.E.2d 444 (1979); 1 Strong's N.C. Index 3d, Appeal and Error ยง 9 (1976).

In our opinion the sole question raised by this appeal was indeed rendered moot when the defendant lost its lease and moved from the premises. The issue of defendant's liability on the supersedeas bond is not raised in the appeal, and will not prevent dismissal of this matter because of its mootness. As for the question of costs, the rule is quite clear: "Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court . . . ." Rule 35, N.C. Rules of Appellate Procedure. In this case, costs will be taxed against appellant.

For the reasons stated, the appeal is

Dismissed.

Disposition

Dismissed.

19791106 ...


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