{
  "id": 11652052,
  "name": "ALEXANDER CHARNS, Petitioner v. CECIL BROWN, in his official capacity as acting city manager, City of Durham, N.C.; JACKIE McNEIL, in his official capacity as chief of police, City of Durham, N.C.; LAURA HENDERSON, in her official capacity as risk manager, City of Durham, N.C.; and SYLVIA KERCKHOFF, in her official capacity as mayor, City of Durham, N.C.; Respondents",
  "name_abbreviation": "Charns v. Brown",
  "decision_date": "1998-06-02",
  "docket_number": "No. COA97-973",
  "first_page": "635",
  "last_page": "640",
  "citations": [
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      "cite": "129 N.C. App. 635"
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    "name": "N.C."
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      "reporter": "N.C.",
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      "year": 1981,
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          "page": "560",
          "parenthetical": "stating that where proper summons was not issued, the action was never commenced"
        }
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      "cite": "54 N.C. App. 180",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
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      "year": 1981,
      "pin_cites": [
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          "page": "182",
          "parenthetical": "stating that where proper summons was not issued, the action was never commenced"
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      "cite": "N.C. Gen. Stat. \u00a7 1-394",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "year": 1996,
      "opinion_index": 0
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    {
      "cite": "N.C. Gen. Stat. \u00a7 1-393",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "year": 1996,
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      "cite": "N.C. Gen. Stat. \u00a7 1-2",
      "category": "laws:leg_statute",
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    {
      "cite": "N.C. Gen. Stat. \u00a7 132-9",
      "category": "laws:leg_statute",
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  "last_updated": "2023-07-14T18:14:06.814789+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges MARTIN, John C., and MARTIN, Mark D., concur."
    ],
    "parties": [
      "ALEXANDER CHARNS, Petitioner v. CECIL BROWN, in his official capacity as acting city manager, City of Durham, N.C.; JACKIE McNEIL, in his official capacity as chief of police, City of Durham, N.C.; LAURA HENDERSON, in her official capacity as risk manager, City of Durham, N.C.; and SYLVIA KERCKHOFF, in her official capacity as mayor, City of Durham, N.C.; Respondents"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nPetitioner requested access to certain public records by letter dated 5 December 1996. He received two letters from the City of Durham advising him that his request would be addressed. Having received no further response from the City of Durham five weeks after sending his request, petitioner filed an action in Durham County Superior Court alleging that he had been denied access to copies of public records and seeking an order compelling their disclosure and enjoining respondents from denying him access to such records.\nOn 13 January 1997, the same day that petitioner filed this action, Judge Orlando F. Hudson, Jr. ordered, ex parte, that respondents release to petitioner the documents sought in his application or appear at a hearing scheduled for 14 February 1997 to show cause why they should not be compelled to allow petitioner to inspect the documents sought. Respondents were served with copies of petitioner\u2019s application and copies of Judge Hudson\u2019s ex parte order. None of the respondents received a summons.\nOn 5 February 1997, respondents filed motions to dismiss the action under N.C. Gen. Stat. \u00a7 1A-1, Rules 12(b)(1), 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6). Respondents also filed a motion for relief under N.C. Gen. Stat. \u00a7 1A-1, Rule 60. A hearing on the respondents\u2019 motions was held on 13 February 1997 in Durham County Superior Court.\nIn an order entered 4 April 1997, Judge Spencer granted respondents\u2019 12(b)(4), 12(b)(5), and 12(b)(2) motions to dismiss for insufficiency of process, insufficiency of service of process, and lack of personal jurisdiction, respectively, because respondents were not served with summonses. Petitioner appeals.\nPetitioner\u2019s first argument is that an action to compel disclosure of public records under N.C. Gen. Stat. \u00a7 132-9 is not a civil action but a special proceeding to which the Rules of Civil Procedure do not apply. Therefore, petitioner argues, summonses were not required in this case. The argument is incorrect.\nOur statutes define an action as \u201can ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment or prevention of a public offense.\u201d N.C. Gen. Stat. \u00a7 1-2 (1996). A suit under G.S. 132-9 fits squarely within this definition.\nFurthermore, G.S. 132-9 authorizes \u201cactions\u201d to compel disclosure of public records. It does not provide for special proceedings. The fact that an action \u201cbrought pursuant to this section shall be set down for immediate hearing,\u201d see N.C. Gen. Stat. \u00a7 132-9 (1995), does not transform the civil action into a special proceeding. We hold that a suit brought to compel the disclosure of public records under G.S. 132-9 is a civil action, not a special proceeding.\nOur determination that suits under G.S. 132-9 are civil actions makes the rest of Petitioner\u2019s first argument irrelevant. However, we believe it desirable to point out that the Rules of Civil Procedure do apply to special proceedings, as to civil actions, except where a different procedure is set out in the statute. See N.C. Gen. Stat. \u00a7 1A-1, Rule 1; N.C. Gen. Stat. \u00a7 1-393 (1996). Therefore, unless a statute states that a summons is not required or sets out a different procedure for serving a summons, Rule 4 applies. Furthermore, we note that a summons is required for all contested special proceedings. See N.C. Gen. Stat. \u00a7 1-394 (1996).\nHaving determined that actions under G.S. 132-9 are civil actions, we move to petitioner\u2019s second argument. Petitioner takes the position that a summons is merely a \u201cpiece of paper\u201d that would have been superfluous considering the other materials served on respondents. It is true that the respondents were served with petitioner\u2019s application for disclosure and a copy of Judge Hudson\u2019s ex parte Order to Show Cause which, together, provided respondents with most of the information required for a summons. However, a summons has independent legal significance. Collins v. Edwards, 54 N.C. App. 180, 182, 282 S.E.2d 559, 560 (1981) (stating that where proper summons was not issued, the action was never commenced). We are not aware of any case in which actual notice has been found to be sufficient to commence a lawsuit in which no summons was served. Summonses were never served in this case and, therefore, this action is deemed never to have commenced.\nPetitioner\u2019s final argument is that Judge Spencer exceeded his authority by overruling Judge Hudson\u2019s ex parte Show Cause Order when he dismissed the action for lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process. Petitioner\u2019s argument is without merit.\nA superior court judge may not overrule the order of another superior court judge. Wall v. England, 243 N.C. 36, 39, 89 S.E.2d 785, 787 (1955). Here, Judge Spencer heard respondents\u2019 motions under N.C. Gen. Stat. \u00a7 1A-1, Rules 12(b)(1), 12(b)(2), 12(b)(4), 12(b)(5), 12(b)(6) and 60(b) seeking dismissal of the case and relief from Judge Hudson\u2019s ex parte Show Cause Order.\nRespondents\u2019 jurisdictional challenges had not been before Judge Hudson when the ex parte order was entered. In fact, the ex parte Show Cause Order was entered before petitioner\u2019s application was sent to respondents. Respondents asserted their personal jurisdiction and process challenges as soon as possible. Nonetheless, petitioner contends that Judge Spencer erred by considering respondents\u2019 jurisdictional claims and dismissing the action for lack of jurisdiction.\nWe find it unfathomable that a superior court judge would be powerless to dismiss an action for lack of personal jurisdiction and insufficiency of process simply because another superior court judge had entered an ex parte order prior to the commencement of the action. Such an absurd result would be contrary to statutory and constitutional jurisdictional requirements.\nPetitioner further asserts that, although the trial court did not specifically address the 60(b) motion in its order, it implicitly granted the motion. The courts of our State do not enter implicit orders. If Petitioner means that the dismissal of the action had the effect of relieving the respondents from the ex parte order, he is correct.\nPetitioner suggests that if Judge Spencer had granted respondents\u2019 60(b) motion, he would have overruled another superior court judge. Although this case is fully decided on the reasoning set forth above, we will address this issue so that this opinion will not be misinterpreted for what it does not say.\nTo adopt petitioner\u2019s reasoning would render Rule 60(b) meaningless. A 60(b) order does not overrule a prior order but, consistent with statutory authority, relieves parties from the effect of an order. N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b) (1990).\nIn this case, Judge Spencer certainly would have had grounds to grant respondents\u2019 60(b) motion because Judge Hudson\u2019s order was void as a matter of law. It is clear from the record that Judge Hudson\u2019s ex parte Show Cause Order was entered before any papers were served on respondents. There is nothing in the record to indicate that a certificate of service was attached to petitioner\u2019s application. It was not Judge Hudson\u2019s responsibility to effect the issuance or service of summons. Because petitioner failed to do so, personal jurisdiction was not obtained over any of the respondents. The superior court had no jurisdiction to enter such an order.\nA summons is required in every case unless otherwise provided by statute. N.C. Gen. Stat. \u00a7 1A-1, Rules 1, 4 (1990). Nothing in G.S. 1-132 relieved petitioner of the obligation to serve summonses on respondents in order to obtain personal jurisdiction over them. We affirm Judge Spencer\u2019s judgment dismissing petitioner\u2019s action for lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process.\nAffirmed.\nJudges MARTIN, John C., and MARTIN, Mark D., concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "Loflin & Loflin, by Thomas F. Loflin, III and Ann F. Loflin; Law Office of William G. Goldston, by William G. Goldston; and Alexander Chams, pro se; for petitioner-appellant.",
      "Faison & Gillespie, by Reginald B. Gillespie, Jr., and The Banks Law Firm, P.A., by Sheena Jones Boyd, for respondents-appellees."
    ],
    "corrections": "",
    "head_matter": "ALEXANDER CHARNS, Petitioner v. CECIL BROWN, in his official capacity as acting city manager, City of Durham, N.C.; JACKIE McNEIL, in his official capacity as chief of police, City of Durham, N.C.; LAURA HENDERSON, in her official capacity as risk manager, City of Durham, N.C.; and SYLVIA KERCKHOFF, in her official capacity as mayor, City of Durham, N.C.; Respondents\nNo. COA97-973\n(Filed 2 June 1998)\n1. Records of Instruments, Documents, or Things \u00a7 14 (NCI4th)\u2014 public records \u2014 suit to compel disclosure\u2014 civil action \u2014 summonses\nA suit brought to compel the disclosure of public records under N.C.G.S. \u00a7 132-9 is a civil action, not a special proceeding; the Rules of Civil Procedure apply to such an action, and the respondents must be served with summonses.\n2. Records of Instruments, Documents, or Things \u00a7 14 (NCI4th)\u2014 public records \u2014 suit to compel disclosure\u2014 action not properly commenced\nService on respondents of petitioner\u2019s application for disclosure of public records and a copy of a judge\u2019s ex parte order to show cause was insufficient to commence an action to compel disclosure of public records.\n3. Courts \u00a7 87 (NCI4th)\u2014 lack of jurisdiction \u2014 dismissal of action \u2014 not overruling of ex parte order\nThe trial court\u2019s dismissal of an action against city officials to compel disclosure of public records for lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process did not impermissibly overrule another judge\u2019s ex parte order to show cause since the jurisdictional challenges were not before the judge who issued the order to show cause.\n4. Records of Instruments, Documents, or Things \u00a7 14 (NCI4th)\u2014 public records \u2014 suit to compel disclosure \u2014 ex parte show cause order \u2014 voidness\nAn ex parte order to show cause in an action against city officials to compel disclosure of public records was void where no summonses had been served on respondents, and respondents would have been entitled to Rule 60(b) relief from the order. N.C.G.S. \u00a7 1A-1, Rule 60(b).\nAppeal by petitioner from order and judgment entered 4 April 1097 by Judge James C. Spencer, Jr. in Durham County Superior Court. Heard in the Court of Appeals 19 March 1998.\nLoflin & Loflin, by Thomas F. Loflin, III and Ann F. Loflin; Law Office of William G. Goldston, by William G. Goldston; and Alexander Chams, pro se; for petitioner-appellant.\nFaison & Gillespie, by Reginald B. Gillespie, Jr., and The Banks Law Firm, P.A., by Sheena Jones Boyd, for respondents-appellees."
  },
  "file_name": "0635-01",
  "first_page_order": 675,
  "last_page_order": 680
}