{
  "id": 8553514,
  "name": "THE CITY OF WILMINGTON v. CAMERA'S EYE, INC.",
  "name_abbreviation": "City of Wilmington v. Camera's Eye, Inc.",
  "decision_date": "1979-11-06",
  "docket_number": "No. 795SC178",
  "first_page": "558",
  "last_page": "561",
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      "cite": "43 N.C. App. 558"
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1979,
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      "cite": "41 N.C. App. 579",
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      "cite": "170 S.E. 2d 473",
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      "reporter": "S.E.2d",
      "year": 1969,
      "pin_cites": [
        {
          "page": "476"
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      "cite": "275 N.C. 675",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "year": 1969,
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          "page": "679"
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    {
      "cite": "221 S.E. 2d 322",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1976,
      "pin_cites": [
        {
          "page": "324"
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    {
      "cite": "289 N.C. 286",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8568034
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      "year": 1976,
      "pin_cites": [
        {
          "page": "288"
        }
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        "/nc/289/0286-01"
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  "last_updated": "2023-07-14T16:43:38.047576+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges CLARK and MARTIN (Harry C.) concur."
    ],
    "parties": [
      "THE CITY OF WILMINGTON v. CAMERA\u2019S EYE, INC."
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nOn 9 October 1979 the plaintiff filed in this Court a motion to dismiss this appeal on the grounds that the issue presented by the appeal has been rendered moot. In support of its motion, plaintiff\u2019s attorney averred that he had been advised by the defendant\u2019s attorney that the defendant \u201chas vacated the premises ... as a result of loss of the lease of the property . . . .\u201d Defendant filed a response to the motion wherein it admitted that it had lost its lease and had moved from the premises. However, defendant denies that the matter is therefore rendered moot because of the questions of costs of the action and its potential liability on a supersedeas bond.\nIn determining the question of mootness, the applicable rule has been well stated as follows:\nWhen, pending an appeal to this Court, a development occurs, by reason of which the questions originally in controversy between the parties are no longer at issue, the appeal will be dismissed for the reason that this Court will not entertain or proceed with a cause merely to determine abstract propositions of law or to determine which party should rightly have won in the lower court.\nState ex rel. Utilities Commission v. Southern Bell Telephone & Telegraph Co., 289 N.C. 286, 288, 221 S.E. 2d 322, 324 (1976) [quoting from Parent-Teacher Association v. Board of Education, 275 N.C. 675, 679, 170 S.E. 2d 473, 476 (1969)]. See also Davis v. Zoning Board of Adjudgment of Union County, 41 N.C. App. 579, 255 S.E. 2d 444 (1979); 1 Strong\u2019s N.C. Index 3d, Appeal and Error \u00a7 9 (1976).\nIn our opinion the sole question raised by this appeal was indeed rendered moot when the defendant lost its lease and moved from the premises. The issue of defendant\u2019s liability on the supersedeas bond is not raised in the appeal, and will not prevent dismissal of this matter because of its mootness. As for the question of costs, the rule is quite clear; \u201cExcept as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court . . . .\u201d Rule 35, N. C. Rules of Appellate Procedure. In this case, costs will be taxed against appellant.\nFor the reasons stated, the appeal is\nDismissed.\nJudges CLARK and MARTIN (Harry C.) concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Assistant City Attorney John C. Wessell III, for plaintiff ap-pellee.",
      "Jones & Wooten, by Everette L. Wooten, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "THE CITY OF WILMINGTON v. CAMERA\u2019S EYE, INC.\nNo. 795SC178\n(Filed 6 November 1979)\nAppeal and Error \u00a7 9\u2014 enforcement of zoning ordinance \u2014appellant\u2019s vacation of premises \u2014 appeal moot\nAn appeal from an order enjoining appellant from using property in violation of a city zoning ordinance was rendered moot when appellant lost its lease and vacated the premises in question, and questions concerning costs of the action and appellant\u2019s potential liability on a supersedeas bond will not prevent dismissal of the appeal.\nAPPEAL by defendant from Tillery, Judge. Judgment entered 2 October 1978 in Superior Court, NEW HANOVER County. Heard in the Court of Appeals on 18 October 1979.\nIn this civil action instituted 13 February 1978, the plaintiff City of Wilmington charged that the defendant business, in its use of certain premises within a geographical area designated the \u201cHistoric District Zone\u201d, was in violation of a city zoning ordinance. Defendant\u2019s use of the location for the retail sale of books and other materials was not a use permitted by the ordinance, plaintiff alleged, and no \u201cspecial use permit\u201d had been issued to defendant. In its answer, the defendant asserted, among several defenses to the action, that \u201chis present use ... is only a continuation of a prior non-conforming use, or a change of a prior non-conforming use to a use of the same or higher classification as is expressly permitted by . . . the zoning ordinance . . . .\u201d At the ensuing trial without a jury, the evidence disclosed the following:\nBy an amendment to the City\u2019s zoning ordinance on 22 November 1972, the present \u201cHistoric District Zone\u201d was created and uses therein restricted to single and multi-family dwellings and accessory buildings; Historic Foundation offices; public facilities of governmental agencies; \u201c[u]ses established prior to 1900 and in continuous operation on the same site to the present day\u201d; and home occupation. A number of uses which ordinarily would not be appropriate in the district are permitted by the issuance of special use permits. In addition, non-conforming uses, that is, \u201can existing use which is not in compliance with the regulations\u201d, were not affected by, and, thus, are allowed under the ordinance so long as such uses were lawful initially.\nPrior to the creation of the Historic District, the area in which the defendant\u2019s business was eventually located was zoned \u201cC-l, which is a Commercial District.\u201d At the time the amendment rezoning the area was passed, the premises in question were occupied by Robert W. Eason, who, from September 1971 until October 1972, had operated therein a \u201cretail office machines and office supply business . . . .\u201d In October he discontinued his business operation, but continued \u201cto use a part of [the building] to store printing supplies and surplus printing equipment ... until October of 1977 . . . .\u201d From January through June of 1974, the premises were leased by Wilton K. Allen, who conducted a consignment business known as the Rummage Hut. The defendant Camera\u2019s Eye began moving into the building in April 1974 and, thereafter, operated a retail establishment for the sale of adult books and other materials. Testimony by an employee of defendant confirmed that it had neither applied for nor been granted a special use permit.\nFrom a judgment wherein the court found facts and concluded therefrom that defendant\u2019s use of the premises was not a nonconforming use and, hence, should be permanently enjoined as being in violation of the City zoning ordinance, defendant appealed.\nAssistant City Attorney John C. Wessell III, for plaintiff ap-pellee.\nJones & Wooten, by Everette L. Wooten, Jr., for defendant appellant."
  },
  "file_name": "0558-01",
  "first_page_order": 586,
  "last_page_order": 589
}