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  "name": "CITIZENS ADDRESSING REASSIGNMENT AND EDUCATION, INC., JADE JOHN LITCHER and ELIZABETH LEE HANER, Plaintiffs v. WAKE COUNTY BOARD OF EDUCATION, Defendant",
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    "judges": [
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    "parties": [
      "CITIZENS ADDRESSING REASSIGNMENT AND EDUCATION, INC., JADE JOHN LITCHER and ELIZABETH LEE HANER, Plaintiffs v. WAKE COUNTY BOARD OF EDUCATION, Defendant"
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        "text": "GEER, Judge.\nPlaintiffs Citizens Addressing Reassignment and Education, Inc., Jade John Litcher, and Elizabeth Lee Haner filed suit to block defendant, the Wake County Board of Education (\u201cthe Board\u201d), from building a modular school on property leased from the National Alumni Association of Dubois High School (\u201cthe Association\u201d). Plaintiffs appeal from an order of the superior court granting the Board\u2019s motion to dismiss plaintiffs\u2019 claims on the grounds of mootness and laches. Since the school has already been opened, we agree with the trial court that most of plaintiffs\u2019 claims are moot. As to those claims that are not moot, plaintiffs have failed to state a claim for relief, and, therefore, we affirm.\nFacts\nThe facts of this case are essentially undisputed. In an effort to alleviate school overcrowding, the Wake County Board of Commissioners, in November 2004, approved the opening of three modular elementary school facilities. These schools, scheduled to begin operating in August 2005, were to serve as temporary locations until the construction of permanent schools could be completed in 2006 and 2007. For one of the modular facilities \u2014 intended to hold approximately 500 students- \u2014 the Board leased a parcel of Wake County real property (\u201cthe Dubois site\u201d) in March 2005 from the Association. The remaining two modular facilities were to be placed on land owned by the Board.\nOn 31 May 2005, plaintiffs sued the Board, alleging that the lease agreement and the Board\u2019s construction of the modular school on the leased Dubois site violated N.C. Gen. Stat. \u00a7 115C-521(d) (2005), which provides that \u201c[l]ocal boards of education shall make no contract for the erection of any school building unless the site upon which it is located is owned in fee simple by the board[.]\u201d Plaintiffs sought a declaratory judgment that the lease agreement was void; a permanent injunction and a writ of mandamus prohibiting the expenditure of any additional public funds for the construction of the modular facility on the leased premises; and an order requiring the Board to repay to the Wake County Board of Commissioners all public funds spent on lease payments and the modular facility\u2019s construction, as well as any payments that were otherwise made in violation of N.C. Gen. Stat. \u00a7 115C-521(d).\nThe Board filed a motion to dismiss plaintiffs\u2019 claims on 7 July 2005. Following a 29 July 2005 hearing, the trial court dismissed plaintiffs\u2019 claims, concluding that they were both moot and barred by the doctrine of laches. With respect to mootness, the court found that, at the time of the hearing, \u201cthe modular school facility . . . was substantially complete. Staff will report to the school building on or about August 15, 2005, and students will report on August 25, 2005.\u201d Based on this finding, the court concluded that \u201c[i]n view of the relief requested by plaintiffs and the substantial completion of the school facility . . ., the case before the [c]ourt is moot.\u201d Further, based on findings of fact relating to when plaintiffs first became aware of the likely use of the Dubois site, the timing of their efforts to block the construction of the school, and the expense incurred by the Board, the court \u201cin its discretion,... determined that the principle of laches should be invoked because of the delay in bringing this suit and the substantial harm to the Board of Education, and especially to those students who are to attend the school at the Dubois site, that would result if an injunction were granted.\u201d Plaintiffs have timely appealed to this Court from the order granting the Board\u2019s motion to dismiss.\nDiscussion\nPlaintiffs included 24 assignments of error in their record on appeal and, in those assignments of error, specifically challenged both the trial court\u2019s conclusion that their claims were moot as well as the court\u2019s determination that the doctrine of laches also barred their claims. In plaintiffs\u2019 brief, however, their entire argument with respect to mootness was limited to the following single paragraph:\nThe [c]ourt below erred in alternatively holding that the case is moot. [Citation to the trial court\u2019s order]. As demonstrated in the preceding six (6) [arguments, [plaintiffs] are entitled to the issuance of a declaratory judgment, permanent injunction and writ of mandamus regarding [the Board\u2019s] violation of the clear and plain language of N.C. Gen. Stat. \u00a7 115C-521(d).\nNowhere, however, in plaintiffs\u2019 \u201cpreceding six\u201d arguments do they address mootness or cite to any authority pertaining to that principle. Moreover, plaintiffs have not submitted to this Court any memorandum of additional authority, as permitted by N.C.R. App. P. 28(g), with respect to mootness.\nIn short, plaintiffs have submitted no authority in support of their contention that the trial court erred in concluding that their claims were moot. \u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d N.C.R. App. P. 28(b)(6) (emphasis added). Plaintiffs have, therefore, abandoned their assignment of error to the trial court\u2019s dismissal of their claims based on mootness. See Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358 (\u201cIt is not the duty of this Court to supplement an appellant\u2019s brief with legal authority or arguments not contained therein. This assignment of error is deemed abandoned . . . .\u201d), disc. review denied, 360 N.C. 63, 623 S.E.2d 582 (2005). Nevertheless, pursuant to our discretion under N.C.R. App. P. 2 (permitting suspension of appellate rules to \u201cexpedite decision^] in the public interest\u201d), we elect to suspend the appellate rules and reach the merits of plaintiffs\u2019 mootness contentions as brought out in oral argument.\nWith respect to plaintiffs\u2019 efforts to obtain a permanent injunction and writ of mandamus prohibiting any additional expenditures for the modular school\u2019s construction, \u201c \u2018[i]t is quite obvious that a court cannot restrain the doing of that which has already been consummated.\u2019 \u201d Fulton v. City of Morganton, 260 N.C. 345, 347, 132 S.E.2d 687, 688 (1963) (quoting Austin v. Dare County, 240 N.C. 662, 663, 83 S.E.2d 702, 703 (1954)). Although plaintiffs assigned error to the trial court\u2019s finding that as of \u201cJuly 29, 2005, . . . the modular school facility . . . was substantially complete\u201d and that \u201cstudents will report on August 25, 2005,\u201d they have neither brought this assignment of error forward in their brief nor made any argument suggesting why it was not supported by competent evidence. This finding is, therefore, binding on appeal. See In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404 (2005) (factual assignments of error binding on appeal when appellant \u201cfailed to specifically argue in her brief that they were unsupported by evidence\u201d). Consequently, as a permanent injunction and writ of mandamus would only' attempt to stop that which has already been done, plaintiffs\u2019 claims for relief on these issues are moot. See Roberts v. Madison County Realtors Ass\u2019n, 344 N.C. 394, 402, 474 S.E.2d 783, 789 (1996) (courts may not issue injunctions to \u201cprohibit [events] from taking place when [they] ha[ve] already occurred\u201d).\nRegarding plaintiffs\u2019 efforts to obtain a declaratory judgment that the construction of the modular school facility violates \u00a7 115C-521(d), actions filed under the Declaratory Judgment Act, N.C. Gen. Stat. \u00a7\u00a7 1-253 through -267 (2005), are subject to traditional mootness analysis. Carolina Spirits, Inc. v. City of Raleigh, 127 N.C. App. 745, 747, 493 S.E.2d 283, 285 (1997), disc. review denied, 347 N.C. 574, 498 S.E.2d 380 (1998). \u201cA case is considered moot when \u2018a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.\u2019 \u201d Lange v. Lange, 357 N.C. 645, 647, 588 S.E.2d 877, 879 (2003) (quoting Roberts, 344 N.C. at 398-99, 474 S.E.2d at 787). Typically, \u201c[c]ourts will not entertain such cases because it is not the responsibility of courts to decide \u2018abstract propositions of law.\u2019 \u201d Id. (quoting In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297, 99 S. Ct. 2859 (1979)). The disputed school is already operating, and plaintiffs do not seek closure of the facility. Therefore, a legal determination declaring the building unlawful would have no practical effect on the controversy. This issue presents only an abstract proposition of law for determination and is, therefore, also moot.\nAs for plaintiffs\u2019 request for a declaratory judgment voiding the lease with the Association and for an injunction prohibiting future lease payments, we agree with plaintiffs that this issue is not necessarily moot. In seeking this relief, however, plaintiffs have relied upon an erroneous construction of N.C. Gen. Stat. \u00a7 115C-521(d).\nUnder this statute, \u201c[l]ocal boards of education shall make no contract for the erection of any school building unless the site upon which it is located is owned in fee simple by the board[.]\u201d N.C. Gen. Stat. \u00a7 115C-521(d) (emphasis added). Plaintiffs\u2019 contention that the lease with the Association violates this provision is contrary to the plain language of the statute. By its specific terms, the statute prohibits only contracts \u201cfor the erection\u201d of school buildings. The lease agreement, however, is merely a contract to lease land.\nWhile the lease does state that the Board intended to use the Dubois site \u201cfor construction of an approximate 500 student modular school facility,\u201d this provision also specifies that \u201csuch use shall be undertaken in a manner that complies with applicable law as now or hereafter enacted or construed . . . .\u201d Thus, even if plaintiffs are correct that erection of a modular facility on leased property violates N.C. Gen. Stat. \u00a7 115C-521(d) \u2014 an issue on which we express no opinion \u2014 nothing in the lease requires, or even permits, the Board to engage in conduct that would violate that statute.\nThe agreement with the Association is addressed only to standard landlord and tenant issues, including the duration of the tenant\u2019s leasehold, rent, and the obligations of the landlord and tenant. It contains no terms relating to the actual erection of any building. The statute at issue, however, does not prohibit leasing property; it prohibits the erection of a building. Accordingly, plaintiffs\u2019 claims seeking a declaration that the lease was void and an injunction prohibiting further lease payments were, therefore, properly dismissed.\nPlaintiffs also sought, in their prayer for relief, an order that the Board \u201crepay to the Board of Commissioners of Wake County all public funds that were expended for lease payments and expended for the purpose of building, constructing or erecting of any public school building on the leased [premises, and any other payment which were [sic] made in violation of N.C. Gen. Stat. \u00a7 115C-521(d).\u201d In oral argument, plaintiffs contended, with respect to the lease payments, that this remedy was not barred as moot. Our determination that the lease did not violate \u00a7 115C-521(d), however, disposes of this contention.\nAs for repayment of other funds expended, plaintiffs did not, even in oral argument, provide any legal basis for requiring the Board to repay to Wake County funds spent on the building of the modular school building. Without plaintiff presenting a legal basis for awarding such relief, we cannot reverse the trial court. As our Supreme Court has stressed, \u201c[i]t is not the role of the appellate courts ... to create an appeal for an appellant.\u201d Viar v. N.C. Dep\u2019t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (per curiam).\nFinally, plaintiffs sought a permanent injunction prohibiting the Board from making similar purportedly illegal contracts in the future. It is, however, well established that \u201c[c]ompleted acts and past occurrences in the absence of any evidence tending to show an intention on the part of the defendants to [commit future violations], will not authorize the exercise of the court\u2019s injunctive power.\u201d State ex rel. Bruton v. Am. Legion Post, 256 N.C. 691, 693, 124 S.E.2d 885, 886-87 (1962). Plaintiffs have not assigned error to the trial court\u2019s following finding of fact: \u201cThere was no evidence presented to demonstrate [the Board] currently is planning or installing any other school facility on leased property and such is not at issue in this case. There was no evidence that the Board of Education has previously installed a school facility on leased property.\u201d This finding of fact, binding on appeal, supports the trial court\u2019s decision not to grant a permanent injunction barring future contracts by the Board potentially in violation of N.C. Gen. Stat. \u00a7 115C-521(d).\nIn sum, each of plaintiffs\u2019 claims is either moot or otherwise meritless. Because of our resolution of this appeal, we need not address the trial court\u2019s determination that plaintiffs\u2019 claims are barred by laches.\nAffirmed.\nJudge CALABRIA concurs.\nJudge JACKSON concurs in part and dissents in part in a separate opinion.\n. A copy of the lease was attached to plaintiffs\u2019 complaint.",
        "type": "majority",
        "author": "GEER, Judge."
      },
      {
        "text": "JACKSON, Judge\nconcurring in part and dissenting in part.\nI concur with the majority\u2019s conclusion that the issue of plaintiffs\u2019 request for a declaratory judgment that the construction of the modular school facility violates section 115C-521(d) is moot. However, for the reasons stated below, I believe the majority unnecessarily addressed plaintiffs\u2019 request for a declaratory judgment voiding the lease with the Association and for an injunction prohibiting future leases. I would hold the trial court properly found the doctrine of laches to be applicable, and that these issues are moot due to the passage of time.\n\u201cIn equity, where lapse of time has resulted in some change in the condition of the property or in the relations of the parties which would make it unjust to permit the prosecution of the claim, the doctrine of laches will be applied.\u201d Teachey v. Gurley, 214 N.C. 288, 294, 199 S.E. 83, 88 (1938). Thus, a determination of whether a delay constitutes laches will depend upon the facts and circumstances of the specific case. Id.\nWhen laches is raised, an appellate court faces \u201ca three-fold question: (1) Do the pleadings, affidavits and exhibits show any dispute as to the facts upon which defendants rely to show laches on the part of plaintiffs? (2) If not, do the undisputed facts, if true, establish plaintiffs\u2019 laches? (3) If so, is it appropriate that defendants\u2019 motion for summary judgment, made under G.S. 1A-1, Rule 56(b), be granted?\u201d\nSave Our Schools of Bladen Cty. v. Bladen Cty. Bd. of Educ., 140 N.C. App. 233, 236, 535 S.E.2d 906, 909 (2000) (quoting Taylor v. City of Raleigh, 290 N.C. 608, 621, 227 S.E.2d 576, 584 (1976)).\nHere, the basic facts of the case are undisputed. The Wake County Board of Education first publicized the possibility of placing a modular school facility on the DuBois property in January 2005 when it requested that the Wake County Board of Commissioners approve a three year lease of the DuBois site. On 1 March 2005, the Board executed a two year lease for the installation of the modular school facility at the DuBois site. However, plaintiffs did not initiate the instant action until three months after the subject lease was signed, and just over two months before the school was set to begin operation in the modular buildings on the leased property. A final judgment in the action was rendered at a hearing held 29 July 2005, and plaintiffs filed their Notice of Appeal one month later on 29 August 2005. The record on appeal was settled and filed with this Court on 23 January 2006, several months after children began attending school on the premises, and almost ten months after defendant began paying rent on the leased realty. The instant case was not argued before this Court until 16 August 2006. By this time, defendant had entered into the second year of the two year lease agreement, and again, children were preparing to begin a new school year at the site. In addition, by the time this opinion is rendered, only three to four months will remain in the 2006-07 school year.\nAt no time did plaintiffs make any effort to expedite our review of this matter. Plaintiffs failed to file any motions or petitions with this Court asking us to review the substantive issues of the case in an expedited time frame in order for the parties to receive a resolution to the matter in a timely fashion. Rule 2 of our appellate rules specifically provides that this Court may suspend or vary the appellate rules and their requirements \u201c[t]o prevent manifest injustice to a party, or to expedite decision in the public interest.\" N.C. R. App. P. 2 (emphasis added). While this Court may invoke Rule 2 upon our own initiative, a party also is entitled to ask this Court to invoke the Rule, see N.C. R. App. P. 2, however plaintiffs never attempted to do so in this case. Based upon these facts, I would hold that the undisputed facts of the case establish laches, which serves as a bar to plaintiffs\u2019 claims given that they knew of the existence of the grounds for their claim as early as March, if not January, of 2005, but chose to take no action. See Save Our Schools, 140 N.C. App. at 236, 535 S.E.2d at 909.\nIn addition, as cited by the majority, \u201c[a] case is considered moot when \u2018a d\u00e9termination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.\u2019 \u201d Lange v. Lange, 357 N.C. 645, 647, 588 S.E.2d 877, 879 (2003) (quoting Roberts v. Madison County Realtors Assn., 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996)). In the instant action, there remain only a few months on the lease at issue. Our rendering the lease void at this time would have little practical effect on the existing controversy, as the lease likely would expire before the children and modular buildings could be moved from the property. This could not be done without great expense, which would contradict plaintiffs\u2019 purposes in filing the instant action. \u201cIt is quite obvious that a court cannot restrain the doing of that which has been already consummated.\u201d Austin v. Dare County, 240 N.C. 662, 663, 83 S.E.2d 702, 703 (1954). As defendant already has entered into, and effectively performed a majority of the lease agreement in question, this Court may not now render a decision on the validity of the lease.\nFor these reasons, I would decline to address the issues of plaintiffs\u2019 request for a declaratory judgment voiding the lease with the Association and for an injunction prohibiting future lease payments, as these issues are now moot.",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "JACKSON, Judge"
      }
    ],
    "attorneys": [
      "Schiller & Schiller, PLLC, by Marvin Schiller, David G. Schiller, and Kathryn H. Schiller, for plaintiffs-appellants.",
      "Tharrington Smith, L.L.P., by Kenneth A. Soo, Neal A. Ramee and Ann L. Majestic, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "CITIZENS ADDRESSING REASSIGNMENT AND EDUCATION, INC., JADE JOHN LITCHER and ELIZABETH LEE HANER, Plaintiffs v. WAKE COUNTY BOARD OF EDUCATION, Defendant\nNo. COA06-105\n(Filed 20 March 2007)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to submit supporting authority \u2014 assignment of error abandoned \u2014 merits presented in oral argument\nAn assignment of error concerning the trial court\u2019s holding of mootness was abandoned by the failure to submit supporting authority or to address the issue. Nevertheless, the merits of the matter as brought out in oral argument were considered.\n2. Injunction\u2014 mootness \u2014 act nearly completed\nAn injunction and a writ of mandamus to stop modular school construction which was substantially complete would only attempt to stop that which has already been done; plaintiffs\u2019 claims were moot.\n3. Declaratory Judgments\u2014 mootness \u2014 action to stop school construction \u2014 building open \u2014 no practical effect on controversy\nAn action seeking a declaratory judgment that the construction of a modular school on leased property violates statutes was moot where the school was operating and plaintiffs did not seek closure of the facility. A legal determination declaring the building unlawful would have no practical effect on the controversy.\n4. Schools and Education\u2014 statute involving school erection \u2014 not applicable to lease\nA claim that a lease was void and for an injunction prohibiting further lease payments was properly dismissed by the trial judge. The claim was based on a statute involving the erection of school buildings, but this is merely a contract to lease land.\n5. Appeal and Error\u2014 legal basis for awarding relief\u2014 required\nThe trial court cannot be reversed when a legal basis for awarding relief is not presented; it is not the role of the appellate courts to create an appeal. Here, the trial judge\u2019s dismissal of a claim regarding repayment of funds spent for building a modular school was upheld where appellants did not provide the required legal basis, even in oral argument.\n6. Injunction\u2014 intent to commit future acts \u2014 evidence not sufficient\nThe court\u2019s injunctive power is not authorized by completed acts and past occurrences in the absence of evidence of intent to commit future acts. The trial judge\u2019s decision to deny an injunction forbidding future contracts by a board of education to build modular schools on leased property was upheld since there was no assignment of error to the finding that there was no evidence of planning of such a school.\nJudge Jackson concurring in part and dissenting in part.\nAppeal by plaintiffs from order entered 11 August 2005 by Judge Wade Barber, Jr. in Wake County Superior Court. Heard in the Court of Appeals 16 August 2006.\nSchiller & Schiller, PLLC, by Marvin Schiller, David G. Schiller, and Kathryn H. Schiller, for plaintiffs-appellants.\nTharrington Smith, L.L.P., by Kenneth A. Soo, Neal A. Ramee and Ann L. Majestic, for defendant-appellee."
  },
  "file_name": "0241-01",
  "first_page_order": 273,
  "last_page_order": 282
}
