{ "id": 4233725, "name": "COVENTRY WOODS NEIGHBORHOOD ASSOCIATION INC., a North Carolina non-profit corporation, JOHN F. BORDSEN and wife, PATRICIA BRESINA, MARTHA L. McAULAY, and JOAN E. PROVOST, EVA COLE MATTHEWS, CHRIS JOHNSON and wife, SHANNON JONES, REBECCA S. GARDNER, JOHN WHITE, RONALD MATTHEWS and wife, EVELYN MATTHEWS, and SHIRLEY JONES, and THOMAS R. MYERS, Plaintiffs v. CITY OF CHARLOTTE, North Carolina, a municipal corporation, CHARLOTTE-MECKLENBURG PLANNING COMMISSION, an agency of THE CITY OF CHARLOTTE, and INDEPENDENCE CAPITAL REALTY, LLC, a North Carolina limited liability corporation, Defendants. And COVENTRY WOODS NEIGHBORHOOD ASSOCIATION, INC., a North Carolina non-profit corporation, Petitioner v. CITY OF CHARLOTTE, North Carolina, a municipal corporation, CHARLOTTE ZONING BOARD OF ADJUSTMENT, an agency of the CITY OF CHARLOTTE, and INDEPENDENCE CAPITAL REALTY, LLC, A North Carolina limited liability corporation, Respondents", "name_abbreviation": "Coventry Woods Neighborhood Ass'n v. City of Charlotte", "decision_date": "2011-07-05", "docket_number": "No. COA10-1551", "first_page": "236", "last_page": "249", "citations": [ { "type": "official", "cite": "213 N.C. App. 236" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "646 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638889 ], "year": 2007, "pin_cites": [ { "page": "820" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0813-01" ] }, { "cite": "663 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641561 ], "year": 2008, "pin_cites": [ { "page": "865" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0862-01" ] }, { "cite": "628 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635634 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "824", "parenthetical": "quoting Bass v. Sides, 120 N.C. App. 485, 488, 462 S.E.2d 838, 840 (1995)" }, { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0817-01" ] }, { "cite": "491 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "675" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798267 ], "year": 1997, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0505-01" ] }, { "cite": "707 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "691", "parenthetical": "quoting In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997)" } ], "opinion_index": 0 }, { "cite": "184 N.C. App. 654", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8187260 ], "year": 2007, "pin_cites": [ { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0654-01" ] }, { "cite": "191 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160106 ], "year": 2008, "pin_cites": [ { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0605-01" ] }, { "cite": "563 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "230", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "229" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 928", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9133374 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "938", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "937" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0928-01" ] }, { "cite": "788 F.2d 247", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1569568 ], "year": 1986, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/f2d/788/0247-01" ] }, { "cite": "2011 WL 683914", "category": "reporters:specialty_west", "reporter": "WL", "year": 2011, "pin_cites": [ { "page": "*2" } ], "opinion_index": 0 }, { "cite": "914 F.2d 505", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10535449 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "518" }, { "page": "518" }, { "page": "518" }, { "page": "520", "parenthetical": "holding that \"a subjective hope by a plaintiff that a lawsuit will embarrass or upset a defendant\" is not grounds for a Rule 11 sanction, \"so long as there is evidence that a plaintiff's central purpose in filing a complaint was to vindicate rights through the judicial process\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/914/0505-01" ] }, { "cite": "462 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "840" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 485", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916349 ], "year": 1995, "pin_cites": [ { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0485-01" ] }, { "cite": "177 N.C. App. 396", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301402 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "404", "parenthetical": "quoting Bass v. Sides, 120 N.C. App. 485, 488, 462 S.E.2d 838, 840 (1995)" }, { "page": "404-05" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0396-01" ] }, { "cite": "606 S.E.2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "154" }, { "page": "155", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 395", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411498 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "402" }, { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0395-01" ] }, { "cite": "418 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1992, "pin_cites": [ { "page": "689" }, { "page": "689" }, { "page": "689" }, { "page": "689", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 87", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527163 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "93" }, { "page": "93" }, { "page": "94" }, { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0087-01" ] }, { "cite": "477 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "238", "parenthetical": "omission in original" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889511 ], "year": 1996, "pin_cites": [ { "page": "382", "parenthetical": "omission in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0377-01" ] }, { "cite": "432 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "345-46" }, { "page": "347" }, { "page": "347" } ], "opinion_index": 0 }, { "cite": "334 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532594 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "315" }, { "page": "317" }, { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0303-01" ] }, { "cite": "412 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "337" }, { "page": "337" }, { "page": "337" }, { "page": "334" } ], "opinion_index": 0 }, { "cite": "330 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508834 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "663" }, { "page": "663" }, { "page": "663" }, { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0644-01" ] }, { "cite": "442 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "365" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527893 ], "year": 1994, "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0632-01" ] }, { "cite": "438 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "476" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522050 ], "year": 1994, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0314-01" ] }, { "cite": "672 S.E.2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "38" }, { "page": "38" }, { "page": "42" } ], "opinion_index": 0 }, { "cite": "195 N.C. App. 201", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165060 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "206" }, { "page": "206" }, { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0201-01" ] }, { "cite": "381 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "714" }, { "page": "714" }, { "page": "713" }, { "page": "717", "parenthetical": "Improper purpose may be inferred from the noticing and taking of witness depositions six days before trial, the attendance of which would require extensive travel and interfere with opposing counsel's final trial preparations" } ], "opinion_index": 0 }, { "cite": "325 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491380 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "165" }, { "page": "165" }, { "page": "164" }, { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0152-01" ] }, { "cite": "695 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "688 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "parenthetical": "hereinafter Coventry Woods I" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1151, "char_count": 33988, "ocr_confidence": 0.748, "pagerank": { "raw": 5.6022384643255224e-08, "percentile": 0.35099131262092886 }, "sha256": "9633eb14327f2bb6409860917e794f6ae5b6a8fe3c09b804d6f5bab5d839afcd", "simhash": "1:c8e8e4f27cde09f6", "word_count": 5269 }, "last_updated": "2023-07-14T21:51:58.983312+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER (Robert C.) and BRYANT concur." ], "parties": [ "COVENTRY WOODS NEIGHBORHOOD ASSOCIATION INC., a North Carolina non-profit corporation, JOHN F. BORDSEN and wife, PATRICIA BRESINA, MARTHA L. McAULAY, and JOAN E. PROVOST, EVA COLE MATTHEWS, CHRIS JOHNSON and wife, SHANNON JONES, REBECCA S. GARDNER, JOHN WHITE, RONALD MATTHEWS and wife, EVELYN MATTHEWS, and SHIRLEY JONES, and THOMAS R. MYERS, Plaintiffs v. CITY OF CHARLOTTE, North Carolina, a municipal corporation, CHARLOTTE-MECKLENBURG PLANNING COMMISSION, an agency of THE CITY OF CHARLOTTE, and INDEPENDENCE CAPITAL REALTY, LLC, a North Carolina limited liability corporation, Defendants. And COVENTRY WOODS NEIGHBORHOOD ASSOCIATION, INC., a North Carolina non-profit corporation, Petitioner v. CITY OF CHARLOTTE, North Carolina, a municipal corporation, CHARLOTTE ZONING BOARD OF ADJUSTMENT, an agency of the CITY OF CHARLOTTE, and INDEPENDENCE CAPITAL REALTY, LLC, A North Carolina limited liability corporation, Respondents" ], "opinions": [ { "text": "McCullough, Judge.\nPlaintiffs/petitioner(s), Coventry Woods Neighborhood Association, Inc., John F. Bordsen, Patricia Bresina, Martha L. McAulay, Joan E. Provost, Eva Cole Matthews, Chris Johnson, Shannon Jones, Rebecca S. Gardner, John White, Ronald Matthews, Evelyn Matthews, Shirley Jones, and Thomas R. Myers (collectively, \u201cplaintiffs/petitioner(s)\u201d), and their counsel, Kenneth T. Davies (collectively, the \u201cappellants\u201d) appeal from an amended order and judgment imposing sanctions under Rule 11 of the North Carolina Rules of Civil Procedure. After careful review, we reverse.\nI. Background\nThis appeal concerns the imposition of sanctions by the trial court pursuant to Rule 11 for three successive actions filed by appellants, each against the Charlotte-Mecklenburg Planning Commission (\u201cthe Commission\u201d), the City of Charlotte (\u201cthe City\u201d), and Independence Capital Realty, LLC (\u201cIndependence\u201d).\nThe individual plaintiffs/petitioner(s) in each action are individuals who either own property located in or reside within the Coventry Woods subdivision or the Cedars East subdivision, both located in Charlotte, North Carolina. Plaintiff/petitioner Coventry Woods Neighborhood Association (\u201cCWNA\u201d) is a North Carolina non-profit corporation representing the common interests of the property owners and residents of the Coventry Woods subdivision. Both the Coventry Woods and Cedars East subdivisions abut an approximately sixteen-acre tract of real property owned by Independence.\nOn 14 February 2005, Independence submitted a new residential subdivision plan for its sixteen-acre tract to the City\u2019s planning staff for preliminary approval. The proposed subdivision plan, denominated Independence Woods, requested a \u201cdensity bonus\u201d that allowed up to 72 single-family homes to be built within the proposed subdivision, as opposed to the limit of 58 residences allowed in areas zoned R-4, the current zoning designation for Independence\u2019s sixteen-acre tract. Independence had previously petitioned the City to have the sixteen-acre tract rezoned from R-4 to R-12MF, which CWNA publicly opposed, but Independence\u2019s rezoning petition was denied by the Charlotte City Council. Planning staff granted preliminary approval of Independence\u2019s subdivision plan, including the density bonus, on 13 December 2006. Plaintiffs/petitioner(s) did not receive notice of the submission of Independence\u2019s subdivision plan to the Commission, nor did they receive notice of its preliminary approval at that time, as the Subdivision Ordinance of the City of Charlotte (\u201cthe Subdivision Ordinance\u201d) requires only that notice of preliminary subdivision approvals be given to the developer. However, the Subdivision Ordinance provides a ten-day period from the date of preliminary approval within which \u201caggrieved parties\u201d can appeal the decision of the planning staff to the Commission.\nOn 5 January 2007, notice of the planning staff\u2019s preliminary approval of the Independence Woods subdivision plan was posted on the Commission\u2019s website. However, plaintiffs/petitioner(s) did not learn of the preliminary approval until early July 2007. Thereafter, plaintiffs/petitioner(s) filed a petition with the Charlotte Zoning Board of Adjustment (\u201cZBA\u201d) on 28 September 2007 challenging the planning staff\u2019s preliminary approval of Independence\u2019s subdivision plan without providing notice to plaintiffs/petitioner(s). Plaintiffs/ petitioners) argued they are \u201caggrieved persons\u201d under the Subdivision Ordinance because Independence Woods, as approved, would be a high-density development with the only means of ingress and egress through the neighborhoods of plaintiffs/petitioner(s), resulting in decreased property values and increased levels of noise, pollution, and traffic. The ZBA rejected plaintiffs/petitioner(s)\u2019 challenge, finding the Subdivision Ordinance did not require individual notice to be given to them. Plaintiffs/petitioner(s) also filed an appeal of the planning staff\u2019s decision to the Commission on 15 February 2008, which was denied as untimely pursuant to the Subdivision Ordinance.\nPlaintiffs/petitioner(s) then commenced three separate actions in Mecklenburg County Superior Court, each raising constitutional chailenges to the Commission\u2019s actions and the relevant Subdivision Ordinance provisions. The first action, No. 08-CVS-3251, filed on 18 February 2008, sought a declaratory judgment that the Subdivision Ordinance was unconstitutional both facially and as applied and requested a preliminary injunction prohibiting Independence from further construction of Independence Woods. The factual background for this first action is more fully set forth in our prior opinion, Coventry Woods Neighborhood Ass\u2019n v. Charlotte, \u2014 N.C. App. \u2014, 688 S.E.2d 538 (2010) (hereinafter Coventry Woods I). The second action, No. 08-CVS-7582, filed on 3 April 2008, petitioned the trial court for review in the nature of certiorari, seeking to challenge the Commission\u2019s ruling that plaintiffs/petitioner(s)\u2019 appeal was untimely. The factual background for this second action is more fully set forth in our prior opinion, Coventry Woods Neighborhood Ass\u2019n v. Charlotte, No. COA09-537 (N.C. Ct. App. Feb. 2, 2010) (hereinafter Coventry Woods II). The third action, No. 08-CVS-9821, filed on 25 April 2008, also petitioned the trial court in the nature of certiorari, seeking to challenge the ZBA\u2019s ruling that plaintiffs/petitioner(s) were not entitled to individual notice prior to the planning staffs\u2019 preliminary approval of the Independence Woods subdivision plan.\nOn 29 February 2008, shortly after commencing the first action, CWNA published a newsletter on its website entitled \u201cCWNA Sues City Hall,\u201d announcing their action and seeking donations to cover litigation expenses. The newsletter states that CWNA was informed by its counsel, Kenneth Davies (\u201cDavies\u201d), that its case was \u201cvery strong\u201d and that, as a result of the lawsuit, the financing and development of Independence Woods would likely be delayed, or \u201cgrind to a stop.\u201d The newsletter also states that CWNA\u2019s \u201cNumber One priority\u201d is stopping the development of Independence Woods \u201conce and for all\u201d and that a \u201csuccessful lawsuit will benefit all neighborhoods.\u201d As a result of the posting, Independence included a motion for sanctions pursuant to Rule 11 in its answers and counterclaims filed in response to each of appellants\u2019 actions.\nOn 6 August 2008, the trial court entered orders dismissing each of appellants\u2019 actions, holding that appellants had no statutory or constitutional right to individual notice and that appellants had failed to timely bring their claims. Appellants appealed the decision in their first action to this Court, which was affirmed on 2 February 2010. Coventry Woods I, - N.C. App. -, 688 S.E.2d 538. Appellants then appealed our decision in Coventry Woods I to our Supreme Court, which was dismissed for failure to present a substantial constitutional question on 14 April 2010. Coventry Woods Neighborhood Ass\u2019n v. Charlotte, 364 N.C. 128, 695 S.E.2d 757 (2010). Appellants also appealed the trial court\u2019s decision in their second action to this Court, which was also affirmed on 2 February 2010. Coventry Woods II, No. COA09-537.\nFollowing the trial court\u2019s dismissal of all three actions, Independence filed a consolidated motion under all three of appellants\u2019 actions renewing its motion for sanctions against appellants under Rule 11. After all of appellants\u2019 appeals were final, the trial court held two separate hearings on 25 May 2010 and 2 June 2010 to consider Independence\u2019s motion for sanctions.\nFollowing those hearings, the trial court entered an order and judgment on 3 August 2010, concluding there was substantial evidence to show that appellants filed their three actions for an improper purpose and imposing sanctions on appellants in the sum of $33,551.79. Appellants now appeal the imposition of sanctions to this Court.\nII. Standard of review\n\u201cThe trial court\u2019s decision to impose or not to impose mandatory sanctions under N.C.G.S. \u00a7 1A-1, Rule 11(a) is reviewable de novo as a legal issue.\u201d Turner v. Duke University, 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989).\nIn the de novo review, the appellate court will determine (1) whether the trial court\u2019s conclusions of law support its judgment or determination, (2) whether the trial court\u2019s conclusions of law are supported by its findings of fact, and (3) whether the findings of fact are supported by a sufficiency of the evidence.\nId.) see also Johns v. Johns, 195 N.C. App. 201, 206, 672 S.E.2d 34, 38 (2009). We \u201cmust uphold the trial court\u2019s decision to impose or deny the imposition of mandatory sanctions\u201d only if we make these three determinations in the affirmative. Turner, 325 N.C. at 165, 381 S.E.2d at 714.\nIII. Imposition of Rule 11 sanctions\nWe first address appellants\u2019 argument that the trial court erred in imposing sanctions against appellants under the improper purpose prong of Rule 11. Appellants argue there is insufficient evidence to support the trial court\u2019s conclusion \u201cthat [appellants\u2019] actions were filed for an improper purpose.\u201d Because neither party raises any challenge to the trial court\u2019s conclusions regarding the factual and legal sufficiency prongs, we address only the improper purpose prong of Rule 11.\nRule 11 of the North Carolina Rules of Civil Procedure provides, in relevant part:\nThe signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 11 (2009). Accordingly, pursuant to Rule 11, \u201c \u2018the signer certifies that three distinct things are true: the pleading is (1) warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law (legal sufficiency); (2) well grounded in fact; and (3) not interposed for any improper purpose.\u2019 \u201d Johns, 195 N.C. App. at 206, 672 S.E.2d at 38 (quoting Bumgardner v. Bumgardner, 113 N.C. App. 314, 322, 438 S.E.2d 471, 476 (1994)). \u201cA violation of any one of these requirements \u2018mandates the imposition of sanctions under Rule 11.\u2019 \u201d Id. (quoting Dodd v. Steele, 114 N.C. App. 632, 635, 442 S.E.2d 363, 365 (1994)). Our Supreme Court has held that \u201c[t]he improper purpose prong of Rule 11 is separate and distinct from the factual and legal sufficiency requirements.\u201d Bryson v. Sullivan, 330 N.C. 644, 663, 412 S.E.2d 327, 337 (1992). \u201cThus, even if a paper is well grounded in fact and law, it may still violate Rule 11 if it is served or filed for an improper purpose.\u201d Brooks v. Giesey, 334 N.C. 303, 315, 432 S.E.2d 339, 345-46 (1993).\n\u201cAn improper purpose is \u2018any purpose other than one to vindicate rights ... or to put claims of right to a proper test.\u2019 \u201d Brown v. Hurley, 124 N.C. App. 377, 382, 477 S.E.2d 234, 238 (1996) (omission in original) (quoting Mack v. Moore, 107 N.C. App. 87, 93, 418 S.E.2d 685, 689 (1992)). \u201cAn objective standard is used to determine whether a paper has been interposed for an improper purpose, with the burden on the movant to prove such improper purpose.\u201d Id. (citing Bryson, 330 N.C. at 663, 412 S.E.2d at 337). \u201cIn this regard, the relevant inquiry is whether the existence of an improper purpose may be inferred from the alleged offender\u2019s objective behavior.\u201d Mack, 107 N.C. App. at 93, 418 S.E.2d at 689. \u201cIn assessing that behavior, we look at \u2018the totality of the circumstances.\u2019 \u201d Johns, 195 N.C. App. at 212, 672 S.E.2d at 42 (quoting Mack, 107 N.C. App. at 94, 418 S.E.2d at 689). In addition, this Court has held that \u201cthe preponderance of the evidence quantum of proof should be utilized in determining whether a Rule 11 violation has occurred.\u201d Adams v. Bank United of Texas FSB, 167 N.C. App. 395, 402, 606 S.E.2d 149, 154 (2004). \u201c \u2018There must be a strong inference of improper purpose to support [the] imposition of sanctions.\u2019 \u201d Kohler Co. v. McIvor, 177 N.C. App. 396, 404, 628 S.E.2d 817, 824 (2006) (quoting Bass v. Sides, 120 N.C. App. 485, 488, 462 S.E.2d 838, 840 (1995)).\nWe note that our Supreme Court has stated, in the context of analyzing Rule 11 sanctions, that the \u201cNorth Carolina Rules of Civil Procedure are, for the most part, verbatim recitations of the federal rules.\u201d Turner, 325 N.C. at 164, 381 S.E.2d at 713. In addition, our Supreme Court added, \u201cDecisions under the federal rules are thus pertinent for guidance and enlightenment in developing the philosophy of the North Carolina rules.\u201d Id.; see also Giesey, 334 N.C. at 317, 432 S.E.2d at 347. According to our Supreme Court, \u201cThis holds true for N.C.G.S. \u00a7 1A-1, Rule 11(a).\u201d Giesey, 334 N.C. at 317, 432 S.E.2d at 347. On this note, we find the following language persuasive under the circumstances of the present case:\n[I]f a complaint is filed to vindicate rights in court, and also for some other purpose, a court should not sanction counsel for an intention that the court does not approve, so long as the added purpose is not undertaken in bad faith and is not so excessive as to eliminate a proper purpose. Thus, the purpose to vindicate rights in court must be central and sincere.\nIn re Kunstler, 914 F.2d 505, 518 (4th Cir. 1990); see also Myers v. Sessoms & Rogers, P.A., No. 5:10-CV-166-D, 2011 WL 683914, at *2 (E.D.N.C. Feb. 17, 2011).\nAdditionally, while we acknowledge that the improper purpose inquiry is separate and distinct from the factual and legal sufficiency inquiries, Bryson, 330 N.C. at 663, 412 S.E.2d at 337, we agree that \u25a0 \u201cwhether or not a pleading has a foundation in fact or is well grounded in law will often influence the determination of the signer\u2019s purpose.\u201d Kunstler, 914 F.2d at 518. In fact, some examples of circumstances from which an improper purpose may be inferred, including those relied on by Independence in the present case, reflect this interplay: Mack, 107 N.C. App. at 93, 418 S.E.2d at 689 (internal quotation marks omitted) (emphasis added). Given the unusually sparse case law sanctioning the filing of an action which is found to be well grounded in law and fact solely on the basis that it was filed for an improper purpose, we believe the circumstances of such a case to be exceptional. See, e.g., Turner, 325 N.C. at 171, 381 S.E.2d at 717 (Improper purpose may be inferred from the noticing and taking of witness depositions six days before trial, the attendance of which would require extensive travel and interfere with opposing counsel\u2019s final trial preparations); Cohen v. Virginia Elec. & Power Co., 788 F.2d 247, 249 (4th Cir. 1986) (A finding of improper purpose in violation of Rule 11 upheld where evidence established that plaintiff and his attorney had a preconceived plan to withdraw a motion, which was otherwise legally and factually supportable, if the opposing party indicated any resistance to the motion). \u201cRule 11 should not have the effect of chilling creative advocacy, and therefore, in determining compliance with Rule 11, courts should avoid hindsight and resolve all doubts in favor of the signer.\u201d Johnson v. Harris, 149 N.C. App. 928, 938, 563 S.E.2d 224, 230 (2002) (internal quotation marks and citations omitted).\n[T]he filing of meritless papers by counsel who have extensive experience in the pertinent area of law,... filing suit with no factual basis for the purpose of fishing for some evidence of liability,. .. continuing to press an obviously meritless claim after being specifically advised of its meritlessness by a judge or magistrate[.]\nIn the present case, the trial court made the following Findings of Fact:\n2. The plaintiffs filed these actions in March and April, 2008, many months after Independence\u2019s subdivision plans had been approved by the City in December 2006, and after Independence had spent more than $1.2 million developing its property, notwithstanding the City\u2019s subdivision ordinance provided that any \u201cappeals\u201d from such approval must be filed \u201cwithin ten days\u201d thereafter.\n3. At the time that these actions were filed, the plaintiffs published in their \u201cCoventry Woods Neighborhood Association\u201d newsletter and on its website an article which read, in part:\n\u201cCWNA Sues City Hall . . . the .Coventry Woods Neighborhood Association has filed suit in North Carolina court, charging that the Charlotte Planning staff\u2019s approval of the Independence Woods Subdivision is in violation of due process. The suit was filed by CWNA attorney Kenneth Davies of Davies & Grist, the top real-estate firm in Charlotte. Davies says our case is very strong. . . . The filing of this suit, Davies says, will have the effect of putting . . . (Independence\u2019s) financing of Independence Woods on hold; Independence Woods will grind to a stop. The suit may take a year before it is heard in court. The Independence Woods issue has galvanized residents of Coventry Woods . . . CWNA membership is up 20 percent and we have received financial donations from members and friends. But litigation is expensive . . . The CWNA Board of Directors unanimously believes that stopping Independence Woods \u2014 once and for all \u2014 is the Number One priority of our organization . . . Your donation . . . will help stop this project once and for all...\u201d\n(Alteration in original.)\nBased on these two findings of fact, in its Conclusion of Law No. 6, the trial court determined:\n[T]here is substantial evidence, viewed from an objective perspective, that these actions were filed for an improper purpose. In this regard, the most damaging evidence is the page from the plaintiffs\u2019 neighborhood association newsletter and website entitled \u201cCWNA Sues City Hall,\u201d quoted above under paragraph 3 of the findings of fact, stating the plaintiffs\u2019 lawsuits \u201cwill have the effect of putting . . . (Independence\u2019s) financing of Independence Woods on hold; Independence Woods will grind to a stop\u201d and \u201c[t]he suit may take a year before it is heard in court.\u201d The court concludes that this evidence \u2014 which neither the plaintiffs nor their counsel denied or refuted in any way \u2014 is sufficient to create a strong inference that these actions were filed for an improper purpose, specifically to harass Independence, make its Independence Woods development prohibitively expensive, interfere with or defeat its financing for that project, and to achieve through delay what could not be accomplished through those actions\u2014 the blocking or prevention of that development.\n(Alteration in original.) (Emphasis added.) Thus, in.concluding there existed \u201csubstantial evidence . . . sufficient to create a strong inference that [appellants\u2019] actions were filed for an improper purpose,\u201d it appears the trial court relied on its findings that appellants filed their actions many months after Independence Woods had been preliminarily approved by planning staff, that CWNA published in its newsletter the fact that litigation would delay the financing and development of Independence Woods, and that appellants did not deny or refute the statements concerning project delay published in CWNA\u2019s newsletter.\nHowever, applying the aforementioned principles of Rule 11 to the present case, we find the trial court\u2019s Conclusion of Law No. 6, which is actually a mixed conclusion of law and finding of fact, is erroneous. First, the trial court\u2019s determination that the \u201cmost damaging evidence\u201d quoted by the trial court from CWNA\u2019s newsletter was \u201cneither . . . denied [n]or refuted in any way\u201d by appellants is unsupported by the evidence in the record and is therefore an erroneous finding of fact. Despite the language quoted by the trial court in its Finding of Fact No. 3, the CWNA newsletter principally relied on by the trial court as evidence of improper purpose contains language negating any inferences that appellants commenced their actions for the principal purposes of harassment and unnecessary project delay. The CWNA newsletter discusses the issue prompting the litigation regarding Independence Woods, describing the planning staff\u2019s approval of Independence Woods as \u201ca de facto rezoning.\u201d The record shows that prior to the planning staff\u2019s preliminary approval of the Independence Woods subdivision plan, which includes a \u201cdensity bonus,\u201d Independence first sought to have its property rezoned to allow for the increased density. CWNA publicly opposed the rezoning application, and the Charlotte City Council voted not to rezone the property. Regarding its concerns with the planning staffs preliminary approval of the Independence Woods subdivision, the CWNA newsletter states:\nCity ordinances allow for a 10-day window in which subdivision approvals can be appealed. But no notice had been given us. More important for our case: There was no public record of this approval on the city\u2019s charmeck.org Web site until several weeks after the 10-day window had come and gone. Our suit says this is a clear-cut, Catch-22 violation of the law.\nFurther, the newsletter concludes by stating, \u201cA successful lawsuit will benefit all neighborhoods. When our suit is won, we all will have won.\u201d These statements negate any inference that appellants\u2019 principal purpose in filing their actions was an improper one.\nAlso before the trial court was the affidavit of CWNA president John Bordsen (\u201cBordsen\u201d). In his affidavit, Bordsen stated that appellants\u2019 purpose in filing the lawsuits \u201cwas to attempt to re-open the subdivision approval process so [plaintiffs/petitioner(s)] could be heard on the merits of [their] objections.\u201d Bordsen continues, \u201cWe believe that our objections, if given due consideration by the Planning Commission, would result in the disapproval of the Independence Woods preliminary subdivision plan.\u201d Bordsen admits that appellants \u201cdid anticipate that filing [plaintiffs/petitioner(s)\u2019] lawsuits would potentially put development on hold during the course of the lawsuit,\u201d but clarifies that appellants \u201chope[d] to avoid a fait accompli wherein [appellants] would later win the case, but the subdivision would be built anyway.\u201d Bordsen further states that appellants \u201cdiscussed this matter with County Commissioner Dumont Clark and current Mayor Anthony Foxx, both attorneys. Based upon [appellants\u2019] conversations with Dumont Clark, Anthony Foxx, and [appellants\u2019] counsel, Kenneth T. Davies, [appellants] felt comfortable proceeding with [appellants\u2019] cases.\u201d\nFurther, in his deposition, Bordsen clarified that Davies had told appellants that the act of filing a lawsuit ordinarily has the effect of delaying a construction project. Bordsen also clarified that, while the newsletter stated that it may take a year before their lawsuit was heard in court, appellants \u201choped it would happen beforehand.\u201d Thus, the trial court was presented with ample evidence refuting any implication of improper purpose from the statements quoted in Finding of Fact No. 3. As such, the trial court\u2019s finding of fact that appellants did not deny or refute the statements concerning project delay published in CWNA\u2019s newsletter is erroneous and, therefore, cannot support its conclusion that such evidence was sufficient to create a strong inference that appellants filed their actions for an improper purpose.\nIn addition, it appears from the order imposing sanctions that the trial court was clearly focused on the language concerning project delay in CWNA\u2019s newsletter. The language quoted by the trial court in its Finding of Fact No. 3 is principally relied on by the trial court as \u201cthe most damaging evidence\u201d tending to show that appellants filed their three actions for the improper purposes of delay and harassment. Independence also primarily relies on that same language from CWNA\u2019s newsletter to carry its burden of showing that appellants filed their three actions for an improper purpose. However, as the language quoted by the trial court accurately reflects, an inherent byproduct to every valid lawsuit of such a nature as the present case is project delay. The statements highlighted by the trial court in the CWNA newsletter reflect this inevitable reality, as explained by Bordsen in both his affidavit and his deposition. In light of the trial court\u2019s conclusion that appellants\u2019 actions \u201ccould have been warranted by a \u2018good faith argument for the extension, modification or renewal of existing law,\u2019 \u201d we fail to see how construction and financing delay under the circumstances of the present case is so exceptional such as to create a strong inference that this was appellants\u2019 principal purpose in filing its actions. Kunstler, 914 F.2d at 518. Thus, we find the trial court\u2019s Finding of Fact No. 3, encompassing such language, does not support the trial court\u2019s conclusion that such evidence is sufficient to create a strong inference that appellants filed their actions for an improper purpose. Accordingly, the trial court\u2019s findings are insufficient to support its conclusion that appellants filed their three actions for improper purposes.\nFurthermore, in reviewing the evidence in the record, under the totality of the circumstances of this case, we find no evidence to support an award of sanctions on the bases asserted by Independence. Besides the statements from CWNA\u2019s newsletter, the only other evidence offered by Independence to support its argument that appellants\u2019 principal purpose in filing their three actions was an improper one was appellants\u2019 continued prosecution of their three actions. Independence appears to argue that in light of unfavorable responses from the Commission\u2019s planning staff and the trial court and the defenses raised by Independence in its answers to appellants\u2019 actions, appellants \u201cshould have, and must have, realized that their suit was meritless.\u201d\nAlthough Independence repeatedly refers to appellants\u2019 actions as \u201cfrivolous,\u201d the trial court found that appellants\u2019 complaint for declaratory judgment and two petitions for review in the nature of certiorari \u201ccould have been warranted by a \u2018good faith argument for the extension, modification or renewal of existing law.\u2019 \u201d Indeed, because the provisions of the Subdivision Ordinance foreclosed appellants\u2019 participation in the planning staff\u2019s approval of the Independence Woods subdivision plan, appellants\u2019 only redress was to turn to the courts to argue, in good faith, for the modification of the existing law. The record evidence shows that plaintiffs/petitioner(s) have a history of actively participating in administrative land use decisions affecting areas surrounding their neighborhoods. As such, the trial court \u201cresolved the first two prongs of the rule in favor of the plaintiffs and their counsel.\u201d While Independence is correct in its assertion that \u201cfailure to dismiss or further prosecution of the action may result in sanctions . . . under the improper purpose prong of [Rule 11],\u201d Bryson, 330 N.C. at 658, 412 S.E.2d at 334, this Court has clarified that \u201c \u2018[c]ase law clearly supports the fact that just because a plaintiff is eventually unsuccessful in her claim, does not mean the claim was inappropriate or unreasonable.\u2019 \u201d Adams, 167 N.C. App. at 403, 606 S.E.2d at 155 (alteration in original) (quoting Harris, 149 N.C. App. at 937, 563 S.E.2d at 229). Independence has offered no evidence showing how appellants\u2019 continued prosecution of their claims was not for the central and sincere purpose of putting their legal arguments to the proper test, especially in light of the trial court\u2019s conclusion that appellants\u2019 three actions could have been warranted by a good faith argument for the modification of existing law.\nMoreover, for purposes of Rule 11, Independence\u2019s \u201csubjective belief\u2019 that appellants filed their actions for the purpose of harassment, \u201cas well as whether the offending conduct did, in fact, harass [Independence] is immaterial to the issue of whether [appellants\u2019] conduct is sanctionable.\u201d Ward v. Jett Properties, LLC, 191 N.C. App. 605, 609, 663 S.E.2d 862, 865 (2008); see also Kohler, 177 N.C. App. at 404-05, 628 S.E.2d at 824; Kunstler, 914 F.2d at 520 (holding that \u201ca subjective hope by a plaintiff that a lawsuit will embarrass or upset a defendant\u201d is not grounds for a Rule 11 sanction, \u201cso long as there is evidence that a plaintiff\u2019s central purpose in filing a complaint was to vindicate rights through the judicial process\u201d). Therefore, based on the evidence in the record, when viewed objectively under the totality of the circumstances of the present case, we find appellants\u2019 continued prosecution of its actions and the language concerning project delay in CWNA\u2019s newsletter insufficient to create a strong inference that appellants\u2019 principal purpose in filing their three actions was to harass Independence or to cause unnecessary delay and disruption to the Independence Woods development.\nAccordingly, because our review of the record reveals no evidence to support an award of sanctions on the bases asserted by Independence, remand is not necessary in this case. Blyth v. McCrary, 184 N.C. App. 654, 664, 646 S.E.2d 813, 820 (2007). Consequently, because we find the trial court\u2019s findings of fact are erroneous in part and do not support its conclusion to impose sanetions on appellants for filing their actions for improper purposes, the order of the trial court imposing sanctions on appellants based on the improper purpose prong of Rule 11 must be reversed. Because we reverse the trial court\u2019s order imposing sanctions on this basis, we need not address appellants\u2019 remaining arguments.\nIV. Conclusion\nThe trial court\u2019s finding of fact that appellants did not deny or refute the statements concerning project delay published in CWNA\u2019s newsletter is not supported by the evidence in the record. In addition, the trial court\u2019s conclusion of law that there existed substantial evidence sufficient to create a strong inference of improper purpose relies on an erroneous finding of fact and is likewise unsupported by the remaining findings of fact, specifically the language quoted from CWNA\u2019s newsletter. To the contrary, when viewed objectively under the totality of the circumstances, we find the evidence in the record is insufficient to support the imposition of sanctions against appellants under the improper purpose prong of Rule 11. We therefore reverse the order of the trial court.\nReversed.\nJudges HUNTER (Robert C.) and BRYANT concur.\n. We emphasize this language in the trial court\u2019s order because, although the trial court included such language in its Conclusions of Law, we find such language is actually a mixed finding of fact and conclusion of law. \u201cGenerally, \u2018any determination requiring the exercise of judgment... or the application of legal principles ... is more properly classified as a conclusion of law.\u2019 \u201d Lamm v. Lamm, \u2014 N.C. App. \u2014, \u2014, 707 S.E.2d 658, 691 (2011) (quoting In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997)). Here, the trial court\u2019s determination that the language quoted from CWNA\u2019s newsletter was not \u201cdenied or refuted in any way\u201d by \u201cneither the plaintiffs nor their counsel\u201d is a finding of fact regarding the evidence before the trial court, rather than a conclusion of law requiring the exercise of judgment or the application of legal principles. \u201cMislabeling of a finding of fact as a conclusion of law is inconsequential if the remaining findings of fact support the conclusion of law.\u201d Id. However, the trial court\u2019s determination that the evidence is sufficient to create a strong inference that appellants filed their three actions for an improper purpose requires the exercise of judgment or the application of legal principles, and therefore is properly labeled a conclusion of law.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Kenneth T. Davies for plaintiffs/petitioner(s) appellants.", "Kenneth T. Davies, pro se, appellant.", "Robinson, Bradshaw & Hinson, RA., by Richard A. Vinroot and Matthew F. Tilley, for Independence Capital Realty, LLC, defendant/respondent appellee." ], "corrections": "", "head_matter": "COVENTRY WOODS NEIGHBORHOOD ASSOCIATION INC., a North Carolina non-profit corporation, JOHN F. BORDSEN and wife, PATRICIA BRESINA, MARTHA L. McAULAY, and JOAN E. PROVOST, EVA COLE MATTHEWS, CHRIS JOHNSON and wife, SHANNON JONES, REBECCA S. GARDNER, JOHN WHITE, RONALD MATTHEWS and wife, EVELYN MATTHEWS, and SHIRLEY JONES, and THOMAS R. MYERS, Plaintiffs v. CITY OF CHARLOTTE, North Carolina, a municipal corporation, CHARLOTTE-MECKLENBURG PLANNING COMMISSION, an agency of THE CITY OF CHARLOTTE, and INDEPENDENCE CAPITAL REALTY, LLC, a North Carolina limited liability corporation, Defendants. And COVENTRY WOODS NEIGHBORHOOD ASSOCIATION, INC., a North Carolina non-profit corporation, Petitioner v. CITY OF CHARLOTTE, North Carolina, a municipal corporation, CHARLOTTE ZONING BOARD OF ADJUSTMENT, an agency of the CITY OF CHARLOTTE, and INDEPENDENCE CAPITAL REALTY, LLC, A North Carolina limited liability corporation, Respondents\nNo. COA10-1551\n(Filed 5 July 2011)\nPleadings\u2014 Rule 11 sanctions \u2014 failure to show principal purpose to harass or cause unnecessary delay\nThe trial court erred by imposing sanctions against plaintiffs under the improper purpose prong of N.C.G.S. \u00a7 1A-1, Rule 11. Based on the evidence in the record and viewed objectively under the totality of the circumstances, plaintiffs\u2019 continued prosecution of their action and the language concerning project delay in their neighborhood association newsletter did not create a strong inference that plaintiffs\u2019 principal purpose in filing their three actions was to harass or to cause unnecessary delay and disruption.\nAppeal by plaintiffs/petitioner(s) and their counsel from judgment entered 3 August 2010 by Judge Forrest D. Bridges, in Mecklenburg County Superior Court. Heard in the Court of Appeals 11 May 2011.\nKenneth T. Davies for plaintiffs/petitioner(s) appellants.\nKenneth T. Davies, pro se, appellant.\nRobinson, Bradshaw & Hinson, RA., by Richard A. Vinroot and Matthew F. Tilley, for Independence Capital Realty, LLC, defendant/respondent appellee." }, "file_name": "0236-01", "first_page_order": 246, "last_page_order": 259 }