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  "name": "THOMAS E. McCLURE, JAMES ROWELL and ELDRIDGE PAINTER, Plaintiffs v. THE COUNTY OF JACKSON, THE JACKSON COUNTY BOARD OF COMMISSIONERS, THE JACKSON COUNTY AIRPORT AUTHORITY, GARY BUCHANAN, EDWIN H. MADDEN, JR., and EDWARD RILEY, Defendants",
  "name_abbreviation": "McClure v. County of Jackson",
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    "judges": [
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    "parties": [
      "THOMAS E. McCLURE, JAMES ROWELL and ELDRIDGE PAINTER, Plaintiffs v. THE COUNTY OF JACKSON, THE JACKSON COUNTY BOARD OF COMMISSIONERS, THE JACKSON COUNTY AIRPORT AUTHORITY, GARY BUCHANAN, EDWIN H. MADDEN, JR., and EDWARD RILEY, Defendants"
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        "text": "STEELMAN, Judge.\nWhen the questions originally in controversy between the parties are no longer at issue, the case is moot and should be dismissed. After the trial court enters a written judgment and notice of appeal has been given, the trial court is functus officio and without jurisdiction to enter an award of attorney\u2019s fees. The better practice is for the trial court to enter its written\u2019judgment only after all issues, including attorney\u2019s fees, have been decided.\nThe Jackson County Airport Authority was established by Jackson County for the operation and maintenance of airport facilities. The Economic Development Commission (\u201cEDC\u201d) of Jackson County was created pursuant to N.C. Gen. Stat. \u00a7 158-8. Thomas E. McClure (\u201cplaintiff\u2019) was appointed by the Board of Commissioners to serve as a member of the Airport Authority in August 2000. Thereafter, plaintiff was elected as chairman of the Airport Authority, serving in that capacity until 12 January 2005. Plaintiff\u2019s term as a member of the Airport Authority was to expire in August 2006. Plaintiff was appointed to the EDC by Western Carolina University, which employed Plaintiff as the director of the University\u2019s Office of Regional Affairs, and was subsequently elected chairman of the EDC.\nOn 12 January 2005, the Jackson County Board of Commissioners, in closed session, discussed the \u201cqualifications, competence, performance, [and] fitness\u201d of plaintiff in these positions. The commissioners then reconvened in open session, voting to remove plaintiff from all county committees and appointments. The commissioners also voted that plaintiff return all \u201crecords, books, bank statements, documents, and minutes\u201d pertaining to the EDC and the Airport Authority. The Board of Commissioners did not provide plaintiff with advance notice or an opportunity to be heard prior to his removal from these positions.\nOn 12 January 2005, the sheriff of Jackson County arrived at plaintiff\u2019s office, demanding that McClure return all records, books, bank statements, minutes, and other documents related to the EDC. On 14 January 2005, Gary Buchanan (\u201cBuchanan\u201d), a member of the Airport Authority, accompanied by a deputy sheriff, seized from plaintiff all records and other documents related to his position as a member and chairman of the Airport Authority.\nOn 23 March 2005, plaintiff filed a verified complaint against Jackson County, the Jackson County Board of Commissioners, the Jackson County Airport Authority, Buchanan, Edwin H. Madden, Jr. (Jackson County Commissioner), and Edward Riley (person appointed by Commission to plaintiff\u2019s seat on the Airport Authority) (hereinafter, \u201cdefendants\u201d), seeking a declaration that defendants acted unlawfully in removing plaintiff from the EDC and the Airport Authority, and also seeking reinstatement to the positions by way of a temporary restraining order, preliminary injunction, and permanent injunction. James Rowell and Eldridge Painter, members of the Airport Authority, joined the lawsuit as additional plaintiffs.\nOn 31 March 2005, the trial court entered a temporary restraining order, directing that the Airport Authority was enjoined from meeting or conducting business pending the court\u2019s hearing of plaintiffs motion for a preliminary injunction. On 13 April 2005, the trial court entered a preliminary injunction, restoring plaintiff as a member and chairman of the Airport Authority. The court found as a fact that the Board of Commissioners \u201cprovided McClure with neither advance notice nor any opportunity to be heard to contest the removal[,]\u201d and concluded that plaintiff \u201c[has] a likelihood of success on the merits of [his] claim that the action of the Board of Commissioners to remove McClure as a member of the Airport Authority without notice or opportunity to be heard was contrary to law.\u201d\nOn 27 April 2005, plaintiff filed a verified amended complaint, alleging that by convening in closed session to discuss the removal of plaintiff from his appointed positions, defendants violated the North Carolina Open Meetings Law, N.C. Gen. Stat. \u00a7 143-318.11 (a)(3). Plaintiff further alleged that the Board of Commissioners denied plaintiff due process of law by failing to provide plaintiff with notice or an opportunity to be heard before his removal from the appointed positions. In his amended complaint, plaintiff sought a declaration that \u201c[defendants\u2019 actions [complained of were] . . . unlawful[,]\u201d and that McClure was improperly removed from the EDC and the Airport Authority. Plaintiff also sought injunctive relief, restoring plaintiff to his office as a member and chairman of the Airport Authority.\nThis case went to trial on 8 February 2006, and a jury was empaneled. However, counsel for plaintiff asserted that the action was one seeking declaratory relief and there was no issue for the jury to decide. Counsel for defendants did not dispute this contention. The trial judge ruled that there were no issues of fact to be submitted to the jury, discharged the jury, and heard the matter without a jury.\nOn 14 February 2006, the trial court entered judgment in favor of plaintiff, declaring the removal of McClure from the Airport Authority to be \u201cnull and void\u201d and ordering him to be \u201crestored and reinstated as a member and chair of the Airport Authority.\u201d The court concluded that the Board of Commissioners violated N.C. Gen. Stat. \u00a7 143.318.11(a)(3) by \u201cconsidering in closed session the qualifications, competence, performance, fitness, and/or removal of McClure as a member of the [Airport Authority].\u201d The court further concluded that \u201c[b]y summarily removing McClure from the Airport Authority, without notice or opportunity to be heard, the Board of Commissioners denied McClure due process of law.\u201d\nThe trial court stated in its 14 February 2006 judgment that \u201c[t]he Court will retain jurisdiction over this matter to hear any motions by the Plaintiff[] to recover their costs and attorney fees.\u201d On 23 February 2006, plaintiff filed a motion for costs and attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-1, 6-20, 6-19.1 and 7A-314. Plaintiff also moved for attorney\u2019s fees pursuant to the Open Meetings Law, N.C. Gen. Stat. \u00a7 143-318.16B. On 16 March 2006, defendants filed notice of appeal from the trial court\u2019s 14 February 2006 judgment. On 3 April 2006, the trial court heard plaintiff\u2019s motion for costs and attorney\u2019s fees. On 21 April 2006, the trial court granted plaintiff\u2019s motion, entering an order awarding costs and attorney\u2019s fees in the amount of $36,347.75. On 5 May 2006, defendants filed notice of appeal from the trial court\u2019s order awarding attorney\u2019s fees.\nThis case comes before this Court on two separate appeals, COA 06-867, which is the appeal of the 14 February 2006 judgment, and COA 06-938, which is the appeal of the 21 April 2006 order awarding costs and attorney\u2019s fees. On 11 September 2006, plaintiff filed a motion to dismiss the appeal as moot, because plaintiff\u2019s term as a member and chairman of the Airport Authority expired in August 2006. Because the background of these appeals is identical and the issues presented are completely intertwined, we address them in a single opinion.\nI: Mootness\nWe first consider plaintiff\u2019s motion to dismiss defendants\u2019 appeal as being moot. We conclude that defendants\u2019 appeal is moot and dismiss the appeal, with the exception of defendants\u2019 appeal of the attorney\u2019s fees awarded to plaintiff.\nThe North Carolina Supreme Court has stated that \u201c[a] case is \u2018moot\u2019 when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.\u201d Roberts v. Madison County Realtors Ass\u2019n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996). In the opinion of In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), the North Carolina Supreme Court stated:\nWhenever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.\n\u201cUnlike the question of jurisdiction, the issue of mootness is not determined solely by examining facts in existence at the commencement of the action. If the issues before a court. . . become moot at any time during the course of the proceedings, the usual response should be to dismiss the action.\u201d Id. at 148, 250 S.E.2d at 912; see also McKinney v. Board of Comm\u2019rs, 278 N.C. 295, 179 S.E.2d 313 (1971) (holding that plaintiffs action seeking an injunction to restrain the defendants from preparing for and holding an election was moot when the election had actually been held, and therefore, plaintiff\u2019s appeal was properly dismissed).\nIn the instant case, the trial court ruled that defendants improperly removed plaintiff from his position as a member and chairman of the Airport Authority. In their appeal, defendants assert that the trial court erred as follows: (1) failing to submit questions of fact to the jury; (2) failing to conduct a de novo bench trial and relying upon evidence presented at the preliminary injunction hearing; (3) disregarding evidence presented at the bench trial; (4) holding that plaintiff had a due process right in his position in the Airport Authority; and (5) refusing to allow defendants to amend their answer to assert a statute of limitations defense. All of these arguments go to the merits of \u201cquestions originally in controversy between the parties [,] [which] are no longer at issue[.]\u201d Peoples, 296 N.C. at 147, 250 S.E.2d at 912. Since plaintiff\u2019s term of office in the Airport Authority has expired, any analysis by this Court of the legality of the proceedings below \u201ccannot have any practical effect on the existing controversy.\u201d Roberts, 344 N.C. at 398-99, 474 S.E.2d at 787. At oral argument, both counsel conceded that the appeal of plaintiff\u2019s status as a member of the Airport Authority was moot, and that the only issue to be resolved is the question of attorney\u2019s fees.\nDefendants, however, contend that while the dispute over the removal of plaintiff as a member of the Airport Authority is itself moot, this Court must still resolve these issues since they have a direct bearing on whether the trial court erred in awarding attorney\u2019s fees to plaintiff.\nIn the federal courts, \u201c[a] great deal of ink has been spilled . . . addressing the question whether plaintiffs\u2019 demand for attorneys\u2019 fees staves off mootness.\u201d Gates v. Towery, 430 F.3d 429, 430 (7th Cir. 2005). In North Carolina courts, the specific question of whether a claim for attorney\u2019s fees, in and of itself, prevents the mootness of related claims has not been addressed. Decisions of lower federal courts may be persuasive in our courts, but they are not binding authority. In re Truesdell, 313 N.C. 421, 428-29, 329 S.E.2d 630, 634-35 (1985) (stating that \u201c[although we recognize that this Court is not bound by the decision from the Federal court, we are nevertheless mindful of the legal maxim, ratio est legis amina, reason is the soul of the law\u201d).\nIn Lewis v. Continental Bank Corp., 494 U.S. 472, 480, 110 S. Ct. 1249, 1255 (1990), the United States Supreme Court concluded that an \u201cinterest in attorney\u2019s fees is, of course, insufficient to create [a] case or controversy[.]\u201d See also United States v. Ford, 650 F.2d 1141, 1143-44 (9th Cir. 1981), cert. denied, 455 U.S. 942, 71 L. Ed. 2d 654 (1982).\nThe Fourth Circuit concluded in S-1 & S-2 v. Spangler, 832 F.2d 294, 297 n.1 (4th Cir. 1987), that an appeal was moot despite a party\u2019s assertion of attorney\u2019s fees and costs claims, observing that, \u201c[a]ny other rule would largely nullify the mootness doctrine with respect to cases brought under the myriad federal statutes that authorize fee awards.\u201d Id. (citing Flesch v. Eastern Pa. Psychiatric Inst., 472 F. Supp. 798, 802 (E.D. Pa. 1979)).\nIf a claim for attorney\u2019s fees does not stave off mootness, we must next consider whether this Court must examine the merits of the mooted question to decide whether plaintiff was entitled to attorney\u2019s fees. We are persuaded by the logic of Spangler. In Spangler, the court stated that the \u201c[t]he issue [of attorney\u2019s fees] is thereafter determinable under the court\u2019s continuing equitable jurisdiction, . . . and is most appropriately determined in the first instance by the district court on remand.\u201d Spangler, 832 F.2d at 297 (citing Doe v. Marshall, 622 F.2d 118, 119 (5th Cir. 1980)). We conclude that, although the examination of the merits of the mooted question would be merely an exercise in \u201cdetermin[ing] [an] abstract proposition[] of law[,]\u201d Peoples, 296 N.C. at 147, 250 S.E.2d at 912, the issue of attorney\u2019s fees here is \u201cmost appropriately determined ... by the [trial] court on remand.\u201d Spangler, 832 F.2d at 297.\nWe hold that defendants\u2019 claims with regard to the appropriateness of the trial court\u2019s award of attorney\u2019s fees does not stave off the mootness of the non-attorney\u2019s fees portion of defendant\u2019s appeal. This portion of defendant\u2019s appeal is moot and is dismissed.\nB: Jurisdiction of Trial Court to Enter Attorney\u2019s Fees Order\nWe next address whether the trial court had jurisdiction to enter an award of attorney\u2019s fees after the defendant had filed notice of appeal from the judgment of 14 February 2006.\nThe issue of jurisdiction over the subject matter of an action may be raised at any time during the proceedings, including on appeal. In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006). This Court is required to dismiss an appeal ex mero mo tu when it determines the lower court was without jurisdiction to decide the issues. Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 86 (1986).\nThe question of whether the trial court had jurisdiction to decide the issue of attorney\u2019s fees is addressed by N.C. Gen. Stat. \u00a7 1-294, the pertinent portion of which reads:\nWhen an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the. action and not affected by the judgment appealed from.\n\u201c[T]he general rule has been that a timely notice of appeal removes jurisdiction from the trial court and places it in the appellate court.\u201d Parrish v. Cole, 38 N.C. App. 691, 693, 248 S.E.2d 878, 879 (1978). Pending appeal, \u201cthe trial judge is [generally] functus officio, subject to two exceptions and one qualification, none of which are applicable to the instant case.\u201d Kirby Bldg. Systems, Inc. v. McNiel, 327 N.C. 234, 240, 393 S.E.2d 827, 831 (1990) (citations omitted).\nThis Court has dealt in a number of cases with the question of whether a trial court has jurisdiction to enter an award of attorney\u2019s fees following the filing of notice of appeal. In Brooks v. Giesey, 106 N.C. App. 586, 590-91, 418 S.E.2d 236, 238 (1992), this Court stated that:\nUnder a statute such as section 6-21.5, which contains a \u201cprevailing party\u201d requirement, the parties should not be required to litigate fees when the appeal could moot the issue. Furthermore, upon filing of a notice of appeal, a trial court in North Carolina is divested of jurisdiction with regard to all matters embraced within or affected by the judgment which is the subject of the appeal. N.C. Gen. Stat. \u00a7 1-294 (1983).\nThis logic was followed in the case of Gibbons v. Cole, 132 N.C. App. 777, 782, 513 S.E.2d 834, 837 (1999). In that case, the trial court entered an order, dismissing plaintiffs complaint. At the time of the hearing, defendants moved for an award of attorney\u2019s fees and filed affidavits in support of the motion. The trial court in the written order of dismissal set a hearing on the motion for attorney\u2019s fees for a later date, in order to allow plaintiffs an opportunity to review and respond to the affidavits. Prior to the hearing on attorney\u2019s fees, plaintiffs filed notice of appeal. A hearing was subsequently held, and attorney\u2019s fees were awarded to defendants. We held that \u201cthe appeal by plaintiffs from the judgment on the pleadings deprived the superior court of the authority to make further rulings in the case until it returns from this Court.\u201d Id.\nThere are several cases which appear to indicate a contrary result but are distinguishable. In In re Will of Dunn, 129 N.C. App. 321, 500 S.E.2d 99 (1998), this Court held that in a will caveat case, the trial court could enter an award of attorney\u2019s fees after the filing of notice of appeal, because the \u201cdecision to award costs and attorney\u2019s fees was not affected by the outcome of the judgment from which caveator appealed[.]\u201d Id. at 329, 500 S.E.2d at 104-05. This holding is restricted to caveat proceedings where the trial court has the discretion to award attorney\u2019s fees as costs to attorneys for both sides. Id. at 330, 500 S.E.2d at 105. In the case of Surles v. Surles, 113 N.C. App. 32, 437 S.E.2d 661 (1993), the trial court orally announced its judgment in a child custody case in open court, expressly reserving the issue of attorney\u2019s fees. Prior to the entry of a written judgment, one of the parties gave notice of appeal. Subsequently, the trial court conducted a hearing on a motion for attorney\u2019s fees. Written orders on the custody matter and attorney\u2019s fees were entered after the notice of appeal was filed. This Court held that the trial court \u201cretained the authority to consider the issue since attorney\u2019s fees were within the court\u2019s \u2018oral announcements\u2019 \u201d and the written orders \u201cconformed substantially\u201d to those \u201coral announcements.\u201d Id. at 43, 437 S.E.2d at 667.\nWe note that Surles was decided in 1993, and dealt with orders entered on 31 October 1991. This was a time of great confusion in the law of North Carolina as to whether an order or judgment was \u201centered\u201d at the time of an oral pronouncement from the bench or upon the filing of a written judgment. This issue was finally resolved by the enactment of Chapter 594 of the 1993 Session Laws. This statute, applicable to judgments entered on or after 1 October 1994, amended Rule 58 of the North Carolina Rules of Civil Procedure to provide that \u201ca judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.\u201d Thus, the fact situation set forth in Surles cannot occur under the present law, since prior to the filing of a written judgment, there would have been nothing from which to appeal. We hold that the rationale of Surles is not applicable under the present version of Rule 58 of the North Carolina Rules of Civil Procedure.\nWe next address whether the trial court\u2019s purported \u201creservation\u201d of the attorney\u2019s fees issue allowed it to retain jurisdiction of that issue. It is fundamental that a court cannot create jurisdiction where none exists. See In re McKinney, 158 N.C. App. 441, 443, 581 S.E.2d 793, 795 (2003). N.C. Gen. Stat. \u00a7 1-294 specifically divests the trial court of jurisdiction unless it is a matter \u201cnot affected by the judgment appealed from.\u201d When, as in the instant case, the award of attorney\u2019s fees was based upon the plaintiff being the \u201cprevailing party\u201d in the proceedings, the exception set forth in N.C. Gen. Stat. \u00a7 1-294 is not applicable.\nWhile we understand that the interests of judicial economy would clearly be better served by allowing the trial court to enter an order on attorney\u2019s fees and then having the matter come up to the appellate courts as a single appeal, we cannot create jurisdiction for the trial court to enter the award of attorney\u2019s fees in violation of N.C. Gen. Stat. \u00a7 1-294. Further, the facts in Gibbons are indistinguishable from the instant case. One panel of the Court of Appeals cannot overrule another panel that has previously decided the identical issue. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). When faced with the possibility of an award of attorney\u2019s fees, the better practice is for the trial court to defer entry of the written judgment until after a ruling is made on the issue of attorney\u2019s fees, and incorporate all of its rulings into a single, written judgment. This will result in only one appeal, from one judgment, incorporating all issues in the case.\nWe reverse the entry of an award of attorney\u2019s fees by the trial court and remand this matter to the trial court for entry of an appropriate order, containing findings of fact and conclusions of law pertinent to the statutory provisions under which plaintiff seeks attorney\u2019s fees. As noted in the portion of the opinion dealing with mootness, even though the case in chief is moot, the trial court may, under appropriate circumstances, award attorney\u2019s fees and costs, pursuant to its equitable jurisdiction.\nII: Conclusion\nFor the reasons discussed above, we dismiss the appeal of the trial court\u2019s order of 14 February 2006 for mootness, reverse the trial court\u2019s order awarding plaintiff attorney\u2019s fees for lack of jurisdiction, and remand the case to the superior court for consideration of the question of attorney\u2019s fees consistent with this opinion.\nDISMISSED IN PART, REVERSED AND REMANDED IN PART.\nJudges WYNN and JACKSON concur.",
        "type": "majority",
        "author": "STEELMAN, Judge."
      }
    ],
    "attorneys": [
      "McGuire, Wood & Bissette, P.A., by Joseph P. McGuire, for plaintiffs-appellees.",
      "Rose Rand Attorneys, P.A., by Jeffrey P. Gray and J. Yancey Washington, for defendants-appellants."
    ],
    "corrections": "",
    "head_matter": "THOMAS E. McCLURE, JAMES ROWELL and ELDRIDGE PAINTER, Plaintiffs v. THE COUNTY OF JACKSON, THE JACKSON COUNTY BOARD OF COMMISSIONERS, THE JACKSON COUNTY AIRPORT AUTHORITY, GARY BUCHANAN, EDWIN H. MADDEN, JR., and EDWARD RILEY, Defendants\nNo. COA06-867\nNo. COA06-938\n(Filed 21 August 2007)\n1. Appeal and Error\u2014 appealability \u2014 mootness\u2014attorney fees\nPlaintiff\u2019s motion to dismiss defendants\u2019 appeal from the 14 February 2006 judgment determining that defendants improperly removed plaintiff from his position as a member and chairman of the Airport Authority is granted, because: (1) plaintiff\u2019s term of office in the Airport Authority has expired, and any analysis by the Court of Appeals of the legality of the proceedings below cannot have any practical effect on the existing controversy; (2) both parties conceded during oral argument that the appeal of plaintiff\u2019s status as a member of the Airport Authority was moot, and that the only issue to be resolved was the question of attorney fees; (3) an interest in attorney fees is insufficient to create a case or controversy; (4) the issue of attorney fees is thereafter determinable under the court\u2019s continuing equitable jurisdiction and is most appropriately determined in the first instance by the district court on remand; and (5) the trial court\u2019s award of attorney fees does not stave off the mootness of the nonattomey fees portion of defendant\u2019s appeal.\n2. Costs\u2014 attorney fees \u2014 jurisdiction\nThe trial court did not have jurisdiction to enter an award of attorney fees after defendants had filed notice of appeal from the judgment of 14 February 2006, and the entry of an award of attorney fees is remanded to the trial court, because: (1) the rationale under Surtes, 113 N.C. App. 32 (1993), is not applicable under the present version of N.C.G.S. \u00a7 1A-1, Rule 58 since the amended rule now provides that a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court; (2) the trial court\u2019s purported reservation of attorney fees did not allow it to retain jurisdiction of that issue since a court cannot create jurisdiction where none exists; and (3) N.C.G.S. \u00a7 1-294 specifically divests the trial court of jurisdiction unless it is a matter not affected by the judgment appealed from, and the exception under N.C.G.S. \u00a7 1-294 is inapplicable when the attorney fees were based upon plaintiff being the prevailing party in the proceedings.\nAppeal by defendant from judgment entered 14 February 2006 and order entered 21 April 2006 by Judge Zoro J. Guice, Jr. in Jackson County Superior Court. Heard in the Court of Appeals 20 February 2007.\nMcGuire, Wood & Bissette, P.A., by Joseph P. McGuire, for plaintiffs-appellees.\nRose Rand Attorneys, P.A., by Jeffrey P. Gray and J. Yancey Washington, for defendants-appellants."
  },
  "file_name": "0462-01",
  "first_page_order": 494,
  "last_page_order": 504
}
