HILDEBRAN HERITAGE & DEVELOPMENT ASSOCIATION, INC., and CITIZENS UNITED TO PRESERVE THE OLD HILDEBRAN SCHOOL, Plaintiffs
THE TOWN OF HILDEBRAN and FOOTHILLS RECYCLING & DEMOLITION, LLC, Defendants
in the Court of Appeals 4 October 2016.
by plaintiffs from judgment entered 11 August 2015 and order
entered 14 September 2015 by Judge Joseph N. Crosswhite, in
Burke County Superior Court. Burke County, No. 15 CVS 180
Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., by Jason
White and Amber R. Mueggenburg, for plaintiff-appellants.
Byrd, McMahon, & Denton, P.A., by Lawrence D. McMahon,
Jr. and G. Redmond Dill, Jr., for defendant-appellee Town of
Starnes Law Firm, by James B. Hogan, for defendant-appellee
Foothills Recycling & Demolition, LLC.
Engstrom Law, PLLC, by Elliot Engstrom, for amicus curiae
Engstrom Law, PLLC.
the meeting of the town council was held openly and in view
of the public, the trial court did not err in concluding that
it did not violate the Open Meetings Law. Where the only
evidence of unreasonable limitation of opportunity for access
to the meeting was the fact that the venue could not
accommodate all present, the trial court did not err in
concluding that the town council did not violate the Open
the trial court declared the contract for demolition of a
building null and void, and the building was subsequently
destroyed in a fire, the issue of whether the trial court
erred in granting a partial directed verdict is moot. Where
plaintiffs failed to demonstrate an abuse of discretion, the
trial court did not abuse its discretion in declining to
award attorney's fees. We affirm in part, and dismiss in
Factual and Procedural Background
Hildebran School ("Old School") was built in 1917,
and has since been viewed as a town landmark. Two additions
to the Old School were completed in 1924 and 1937, and in the
1950s a breezeway was added to connect the older portions of
the building to the newer high school structures. The Old
School functioned as both a Junior High and High School from
its opening in 1917 until 1987, when new school buildings
were built in town. The Town of Hildebran ("Town")
acquired the Old School from the Burke County Board of
Education in 1988.
School was first discussed at a 22 September 2014 special
meeting of the Hildebran Town Council ("Town
Council"). At this meeting, Council Member Lee Lowman
("Lowman") brought up the physical state of the
school, expressing his belief that the Old School was beyond
repair and was both a safety and fire hazard. Council Member
Jamie Hollowell ("Hollowell") then requested that
"hard copy bids" be solicited for costs of both
demolition and repair of the school, in order to make an
informed decision. Virginia Cooke ("Cooke"),
Council Member and town mayor, stated that she had solicited
a quote for costs to demolish the school.
Town Council next discussed the Old School at its 27 October
2014 regularly scheduled meeting. There were two discussions
concerning the Old School at the 27 October 2014 meeting.
First, the Town Council considered a resolution that would
exempt it from following the formal bidding process for
projects costing less than ninety thousand dollars, which
failed. Second, the Town Council entered into a closed
session to "discuss matters relating to the location or
expansion of industries or other businesses in the area
served by the public body, including agreement on a tentative
list of economic development incentives that may be offered
by the public body in negotiations" citing N.C. Gen.
Stat. § 143-318.11(a)(4). Later, at trial, the evidence
showed that the Old School's future was discussed during
the closed session rather than a discussion pertinent to
"the location or expansion of industries or other
Town Council next discussed the Old School at the regularly
scheduled meeting on 24 November 2014, where a presentation
was given regarding the possibility of historic
rehabilitation. The Old School was otherwise not discussed
any further at the 24 November 2014 meeting.
interest in the fate of the Old School began to grow in late
November and early December of 2014. The trial court found
that "at least one Council member and the Mayor knew
that public interest in the fate of the old school building
was very high[.]" At the Town Council's December
2014 regular meeting, Cooke announced that there would be a
public forum to allow citizens to discuss options for the Old
School, and the forum was scheduled for 8 January 2015, as a
8 January 2015 special meeting, Cooke announced which
portions of the school would be "affected" by
demolition. Twenty-one members of the public spoke, each
addressing opinions as to the fate of the school, with
nineteen of the twenty-one speakers in favor of saving the
Old School. The Town Council held another special meeting on
23 January 2015, at which the school was not discussed.
Town Council's next meeting was its regularly scheduled
meeting on 26 January 2015. The Town Council posted the
agenda for this meeting, as was its routine, on its website.
The published agenda for the 26 January 2015 Town Council
meeting showed that the Town Council would discuss the Old
School, but there was no indication that the Town Council
would vote upon the Old School's fate at the meeting.
Even though there was no vote scheduled on the agenda, the
meeting room was full for the 26 January 2015 meeting. Around
twenty to twenty-five members of the public were permitted to
enter the meeting room to voice their opinions, however they
were not permitted to remain in the room once having done so.
At least one member of the public and one Council Member
requested the meeting to be relocated to the Town auditorium,
a standalone structure adjacent to the Town Hall complex. The
relocation request was denied. The reason for denying the
request was that a change in location would have required the
Town Council to give at least forty-eight hours public
notice, pursuant to N.C. Gen. Stat. § 143-318.12(a).
evening before the 26 January 2015 meeting, Lowman
communicated with Cooke and all members of the Council,
except for Councilman Wendell Hildebran
("Hildebran"). The purpose of the conversations
between Lowman and the others was to (1) discuss his
intention to amend the agenda and call for a vote as to the
fate of the school and (2) determine whether the Council
Members would support his effort to amend the agenda and call
for a vote. Lowman did not contact Hildebran because he knew
he would not support Lowman's amendment to the agenda,
and Lowman believed that Hildebran would inform the public of
the plan to amend the agenda.
on Lowman's conversations with Cooke and other Town
Council members, Lowman made a motion to amend the agenda at
the 26 January 2015 meeting from "Original School
Building Discussion" to "Original School Building
Discussion/Vote[.]" The trial court found that
"[p]rior to the meeting held on January 26, 2015, the
public did not have knowledge that the agenda would be
amended or the nature of the amendment to the agenda."
Hildebran requested that the vote be tabled until the
Town's 23 March 2015 meeting.
motion to amend the agenda passed, and Hildebran was the only
member to oppose the amendment. The agenda was further
amended to add "Old School Building Demolition Quotes
under Old Business" because Cooke had informed Lowman,
prior to the 26 January 2015 meeting, that she had received
demolition quotes. The Town voted to demolish the Old School
and to award the demolition contract to Foothills Recycling
& Demolition, LLC ("Foothills") on 26 January
February 2015, Hildebran Heritage & Development
Association, Inc. ("HHDA"), and Citizens United to
Preserve the Old Hildebran School ("Citizens
United") (collectively, "plaintiffs"), filed a
complaint against the Town and Foothills (collectively,
"defendants"), alleging breach of contract, failure
to comply with N.C. Gen. Stat. § 143-129 et
seq. (the procedure for government bodies taking bids on
public contracts), and failure to comply with N.C. Gen. Stat.
§ 143-318.9 et seq. (the "Open Meetings
Law"). In addition, plaintiffs sought a temporary
restraining order and a preliminary injunction to prevent the
demolition of the Old School. On 20 March 2015, Foothills
filed its answer and motions to dismiss, alleging failure to
state a claim upon which relief can be granted, lack of
capacity by Citizens United to file a lawsuit, and
plaintiffs' lack of standing. On 24 April 2015, the Town
filed its answer.
trial was held before the Superior Court of Burke County. At
trial, at the conclusion of plaintiffs' evidence,
defendants moved for a partial directed verdict on the issue
of the validity of the contract between the Town and
Foothills. On 3 September 2015, the trial court entered an
order on this motion, granting it in favor of defendants, and
holding that "the evidence . . . is insufficient as a
matter of law to establish that the contract between the
Defendants to demolish the School Building is
August 2015, the trial court entered its judgment on
plaintiffs' complaint. It first noted that plaintiffs had
alleged four different violations of the Open Meetings Law:
(1) that the Town Council had discussed remodeling or
destroying the Old School during the 27 October 2014 closed
session meeting; (2) that the Town Council had failed to
provide reasonable access to the 26 January 2015 meeting; (3)
that Lowman had engaged in one-on-one discussions outside of
the open sessions; and (4) that the Town Council had voted to
amend its agenda at the 26 January 2015 meeting. With respect
to the first allegation, the trial court acknowledged that
the discussion during the closed session meeting on 27
October 2014 constituted a violation of the Open Meetings
Law. Nonetheless, the trial court concluded that,
notwithstanding this violation, "the vote of the
Defendant's Town Council to demolish the old school
building and the award of the demolition contract to the
Defendant Foothills should not be declared null and
respect to plaintiffs' remaining allegations, the trial
court concluded that the measures taken to make the 26
January 2015 meeting accessible to the public were
"reasonable under all the circumstances existing at that
time and substantially complied with the Open Meetings Law[,
]" that the evidence with respect to the one-on-one
discussions and vote to amend was "insufficient as a
matter of law to establish that any of these other acts were
in violation of the Open Meetings Law[, ]" and that
therefore defendants were entitled to a directed verdict with
respect to these allegations.
trial court then considered whether to award attorney's
fees. The court concluded that, as both parties had succeeded
on a substantial issue in the case, both were
"prevailing parties" under statute. In its
discretion, the court declined to award attorney's fees
to either side.
the trial court's order granting a partial directed
verdict, and from the trial court's judgment, plaintiffs
their third argument, which we choose to address first,
plaintiffs contend that the trial court erred in entering a
directed verdict in favor of defendants as to the claim that
the demolition contract was null and void. Due to newly
revealed information, however, we hold that this issue is
arguments before this Court, it was revealed by the parties
that the Old School, during the pendency of the appeal, had
caught fire and burned down. The fact that the parties did
not consider this information to be pertinent to be brought
to the attention of this Court is itself troubling. This
information would not have been brought to the attention of
the Court, but for a fortuitous question from the Court.
Where parties contract with reference to specific property
and the obligations assumed clearly contemplate its continued
existence, if the property is accidentally lost or destroyed
by fire or otherwise, rendering performance impossible, the
parties are relieved from further obligations concerning it.
. . . Before a party can avail himself of such a position, he
is required to show that the property was destroyed, and
without fault on his part.
Sechrest v. Forest Furniture Co., 264 N.C. 216, 217,
141 S.E.2d 292, 294 (1965) (citation and quotations omitted).
In the instant case, it is clear that the Old School was
completely destroyed by fire, through no fault of either
party. Likewise, the contract for the demolition of the Old
School clearly contemplated its continued existence, at least
until the contract was completed.
this information been available at trial, it would clearly
have supported the trial court's determination that the
contract was null and void. Performance of the contract was
rendered impossible by the destruction of the Old School by
fire. However, the record contains no evidence as to when the
Old School was destroyed by fire; moreover, the trial
court's order on the motion for a directed verdict seems
to imply that, as of the entry of that order, the trial court
was unaware of the Old School's destruction, had the fire
even occurred at that time. As such, this new information has
no bearing on the trial court's order.
does, however, have bearing on the ultimate disposition of
this issue. The destruction of the Old School renders
performance under the contract impossible. Certainly, even if
the contract was not null and void when the trial court
entered its order, the contract is null and void now. Even
were we to agree with plaintiffs' contentions and remand
this issue, the outcome would be the same; the trial court
would grant a directed verdict, holding the contract to be
null and void as a result of the destruction of the Old
School. We therefore hold that this matter is moot, and
dismiss this argument accordingly.
The Open Meetings Law
their first and second arguments, plaintiffs contend that the
Town violated the Open Meetings Law, both by purposefully
conducting sub-quorum meetings, and by failing to provide
reasonable public access. We disagree.
Standard of Review
of statutory construction are questions of law, reviewed de
novo on appeal." McKoy v. McKoy, 202 N.C.App.
509, 511, 689 S.E.2d 590, 592 (2010). "Whether a
violation of the Open Meetings Law occurred is a question of
law. We therefore apply de novo review to this
portion of the decision of the trial court." Knight
v. Higgs, 189 N.C.App. 696, 700, 659 S.E.2d 742, 746
plaintiffs contend that the Town violated the Open Meetings
Law by permitting Lowman to conduct one-on-one meetings.
It is the public policy of our State that "hearings,
deliberations, and actions of [public] bodies be conducted
openly." N.C. Gen. Stat. § 143-318.9 (2005).
Accordingly, as a general rule, "each official meeting
of a public body shall be open to the public, and any person
is entitled to attend such a ...