Izydore v. City of Durham ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1378
Filed: 6 October 2015
Durham County, No. 09-CVS-7031
ROBERT A. IZYDORE, Petitioner,
v.
CITY OF DURHAM (DURHAM BOARD OF ADJUSTMENT[)]1, Respondent.
Appeal by petitioner from order entered 21 July 2014 by Judge Carl R. Fox in
Durham County Superior Court. Heard in the Court of Appeals 5 May 2015.
Robert A. Izydore, pro se, petitioner-appellant.
Office of the City Attorney, City of Durham, by Emanuel D. McGirt, Senior
Assistant City Attorney, for respondent-appellee.
DAVIS, Judge.
Robert A. Izydore (“Petitioner”) appeals from the trial court’s 21 July 2014
order denying his petition for attorneys’ fees pursuant to N.C. Gen. Stat. § 6-21.7.
After careful review, we affirm.
Factual Background
1 In the trial court’s 21 July 2014 order, the designation of Respondent as “City of Durham
(Durham Board of Adjustment[)]” actually encompasses the following entities: (1) the City of Durham;
(2) the Durham City-County Board of Adjustment; and (3) the Durham City-County Planning
Department.
IZYDORE V. CITY OF DURHAM (DURHAM BOARD OF ADJUSTMENT)
Opinion of the Court
This case is before us for the second time. We summarized the pertinent facts
surrounding this litigation in our opinion in Petitioner’s first appeal, see Izydore v.
City of Durham (Durham Bd. of Adjustment), __ N.C. App. __, 746 S.E.2d 324, disc.
review denied, 367 N.C. 261, 749 S.E.2d 851 (2013) (“Izydore I”), as follows:
Petitioner Robert A. Izydore (“petitioner”) appeals
from the trial court’s order denying his petition to recover
attorney’s fees from respondents City of Durham (“the
City”), Durham City-County Board of Adjustment (“the
Board”), and Durham City-County Planning Department
(“the Department”) (collectively “respondents”). . . .
On 18 May 2009, petitioner filed a protest with the
Department, challenging its issuance of building permits
allowing his neighbor, Stacy A. Crabtree (“Crabtree”), to
divide her lot into two smaller lots and to allow Sun River
Builders Signature Homes, Inc. to build separate houses on
each lot. After the Department rejected his protest,
petitioner appealed to the Board. The Board considered
petitioner’s appeal during a hearing held on 28 July 2009
and issued a decision on 22 September 2009 rejecting his
appeal.
By writ of certiorari, petitioner obtained judicial
review of the Board’s decision, and the trial court
remanded the matter to the Board on 28 June 2010 for a
new hearing. On remand, the Board again rejected
petitioner’s appeal in a decision issued 7 December 2010.
The trial court issued a second writ of certiorari on 5
January 2011 to review the Board’s 7 December 2010
decision. In an order and judgment entered 15 September
2011, the trial court remanded the case to the Board with
instructions to revoke the building permits pertaining to
Crabtree’s property. None of the parties sought post-
judgment relief from the 15 September 2011 order and
judgment, and no appeal was taken.
-2-
IZYDORE V. CITY OF DURHAM (DURHAM BOARD OF ADJUSTMENT)
Opinion of the Court
On 16 November 2011, petitioner filed a petition,
along with supporting affidavits, seeking the recovery of
attorney’s fees from respondents pursuant to N.C. Gen.
Stat. § 6-19.1. The trial court, after conducting a hearing,
issued an order on 8 May 2012 denying the petition on the
ground that it lacked authority to award attorney’s fees
pursuant to N.C. Gen. Stat. § 6-19.1.
Id. at __, 746 S.E.2d at 325.
In Izydore I, the issue before us was whether the trial court had erred in
declining to award attorneys’ fees to Petitioner pursuant to N.C. Gen. Stat. § 6-19.1,
which authorizes trial courts — under certain specified circumstances — to award
such fees to parties prevailing in civil actions against state agencies. N.C. Gen. Stat.
§ 6-19.1(a) (2013). We affirmed the trial court’s order, holding that Petitioner was
not entitled to recover attorneys’ fees under N.C. Gen. Stat. § 6-19.1 because (1)
Respondent consisted of local units of government rather than state agencies; and (2)
N.C. Gen. Stat. § 6-19.1 applies “only in those civil actions involving actual agencies
of the State.” Izydore I, __ N.C. App. at __, 746 S.E.2d at 327. Petitioner subsequently
filed a petition for discretionary review with our Supreme Court, which was denied
on 7 November 2013. Izydore v. City of Durham (Durham Bd. of Adjustment), 367
N.C. 261, 749 S.E.2d 851 (2013).
On 10 February 2014, Petitioner filed a new petition in Durham County
Superior Court seeking attorneys’ fees under a separate statute — N.C. Gen. Stat. §
-3-
IZYDORE V. CITY OF DURHAM (DURHAM BOARD OF ADJUSTMENT)
Opinion of the Court
6-21.7. On 24 February 2014, Petitioner filed an amended petition2 pursuant to that
same statute. On 7 March 2014, Respondent filed an answer. Ten days later, on 17
March 2014, Petitioner filed a motion for partial summary judgment.
A hearing on Petitioner’s amended petition and motion for partial summary
judgment was held on 10 June 2014 before the Honorable Carl R. Fox in Durham
County Superior Court. On 21 July 2014, Judge Fox entered an order denying
Petitioner’s amended petition and determining that Petitioner’s motion for partial
summary judgment was moot. Petitioner filed a timely notice of appeal.
Analysis
I. Motion to Strike
Initially, we address Respondent’s motion to strike certain portions of the
appendix to Petitioner’s appellate brief. Respondent has moved to strike pages 13-36
in the appendix, which consist of two documents: (1) a legal memorandum filed by
Respondent in the trial court in Izydore I; and (2) an undated written commentary
(presumably drafted by Petitioner) on the testimony of several of Respondent’s
witnesses earlier in this litigation entitled “Perjurious/Conflicting Claims Made by
the City/County of Durham and the Developer/Owner.” Neither of these two
documents are contained in the record on appeal.
2 Both the 10 February 2014 petition and the 24 February 2014 amended petition bore the
same case number — 09 CVS 7031 — as Petitioner’s initial petition for attorneys’ fees that was at
issue in Izydore I.
-4-
IZYDORE V. CITY OF DURHAM (DURHAM BOARD OF ADJUSTMENT)
Opinion of the Court
North Carolina Rule of Appellate Procedure 9(a) states, in pertinent part, that
“[i]n appeals from the trial division of the General Court of Justice, review is solely
upon the record on appeal, the verbatim transcript of proceedings, if one is
designated, and any other items filed pursuant to this Rule 9.” N.C.R. App. P. 9. We
have held that
[a]fter the case has been docketed in the appellate court,
the proper method to request amendment of the record,
when the inclusion of the document has not been addressed
by a trial court order settling the record on appeal, is to
make a motion in the appellate court to amend the record
under N.C.R. App. P. 9(b)(5). . . . Furthermore, it [is]
improper . . . to attach a document not in the record and
not permitted under N.C.R. App. P. 28(d) in an appendix to
[a party’s] brief. See N.C.R. App. P. 9(a) (stating that
review is solely upon the record and transcripts) and
N.C.R. App. P. 28(b) (describing proper contents of
appellant’s brief).
Horton v. New S. Ins. Co., 122 N.C. App. 265, 267-68, 468 S.E.2d 856, 857-58, disc.
review denied, 343 N.C. 511, 472 S.E.2d 8, 8-9 (1996).
In his response to Respondent’s motion to strike, Petitioner concedes that
Respondent’s legal memorandum is not contained in the record on appeal. Petitioner
nevertheless asserts that he included the document “to further verify and show the
extent of [Respondent’s] duplicity because he believes this Court should be aware of
it.” However, because Petitioner neither included this document in the record on
appeal nor moved to amend the record for the purpose of adding it, the inclusion of
the memorandum in the appendix to Petitioner’s brief was improper.
-5-
IZYDORE V. CITY OF DURHAM (DURHAM BOARD OF ADJUSTMENT)
Opinion of the Court
The same is true of Petitioner’s written commentary on the testimony of
Respondent’s witnesses in the underlying proceeding that comprises pages 25-36 of
the appendix to his appellate brief. Therefore, these pages must likewise be stricken.
Accordingly, we grant Respondent’s motion to strike pages 13-36 of the
appendix to Petitioner’s brief and will not consider them for purposes of this appeal.
See N.C. Concrete Finishers, Inc. v. N.C. Farm Bureau Mut. Ins. Co., 202 N.C. App.
334, 337-38, 688 S.E.2d 534, 536 (2010) (“In the instant case, the documents attached
as appendices to Plaintiff’s brief are not part of the Record on Appeal. Accordingly
we grant Defendant’s motion and do not consider these documents in our review of
the trial court’s order.”); see also Cty. of Durham v. Roberts, 145 N.C. App. 665, 671,
551 S.E.2d 494, 498 (2001) (“[E]xhibits in an appendix to the brief, which are outside
the record will not be addressed. Therefore, the external documents included in the
appendix to defendant’s brief are not considered here.” (internal citation omitted)).
II. Denial of Attorneys’ Fees
The sole issue raised by Petitioner on appeal is his contention that the trial
court erred in denying his amended petition for attorneys’ fees under N.C. Gen. Stat.
§ 6-21.7. While the parties make a number of different arguments in support of their
respective positions on this issue, we affirm the trial court’s order for the basic reason
that once our mandate issued in Izydore I the case was over.
-6-
IZYDORE V. CITY OF DURHAM (DURHAM BOARD OF ADJUSTMENT)
Opinion of the Court
In reaching this conclusion, we are guided by our Supreme Court’s decision in
Lea Co. v. N.C. Bd. of Transp., 323 N.C. 697, 374 S.E.2d 866 (1989). In Lea, the
plaintiff initially filed an inverse condemnation action seeking to recover damages for
the defendant’s taking of the plaintiff’s property. Id. at 698, 374 S.E.2d at 867. The
trial court found that the defendant was liable to the plaintiff, and our Supreme Court
ultimately affirmed the trial court’s judgment and remanded for a determination of
damages. Id. The trial court on remand determined that the plaintiff was entitled
to simple interest at the rate of 11% per annum for the period between the time of
the taking and the entry of the judgment awarding compensation. Id.The plaintiff appealed once again, asserting that the trial court had erred in
awarding only simple interest as opposed to compound interest. Id. The Supreme
Court proceeded to affirm the judgment of the trial court awarding the plaintiff only
simple interest. Id.The plaintiff subsequently filed a motion seeking to reopen the trial court’s
judgment for the purpose of making additional findings of fact and conclusions of law
as to whether the plaintiff should, in fact, be awarded compound interest. Id. at 699,
374 S.E.2d at 867-68. The trial court denied the plaintiff’s motion on the ground that
the Supreme Court had not remanded the case for further consideration of this issue
and instead had simply affirmed the judgment of the trial court. Id.-7-
IZYDORE V. CITY OF DURHAM (DURHAM BOARD OF ADJUSTMENT)
Opinion of the Court
The plaintiff appealed for a third time, and the Supreme Court affirmed the
trial court’s ruling, holding as follows:
A decision of this Court on a prior appeal constitutes
the law of the case, both in subsequent proceedings in the
trial court and on a subsequent appeal. Our mandate is
binding upon the trial court and must be strictly followed
without variation or departure. No judgment other than
that directed or permitted by the appellate court may be
entered. We have held judgments of Superior Court which
were inconsistent and at variance with, contrary to, and
modified, corrected, altered or reversed prior mandates of
the Supreme Court to be unauthorized and void.
The mandate of this Court in the second appeal of
this case affirmed a judgment of the trial court granting
plaintiff simple interest on its award at the rate of 11% per
annum for the time between defendant’s taking of
plaintiff’s property and entry of the judgment awarding
compensation. As the trial court noted, our mandate did
not include a remand for consideration of an award of
compound interest; rather, it affirmed a judgment
awarding simple interest, which was all the plaintiff had
sought. The trial court had no authority to modify or
change in any material respect the decree affirmed.
Id. at 699-700, 374 S.E.2d at 868 (internal citations, quotation marks, brackets, and
ellipses omitted).
This principle was also articulated by our Supreme Court in D & W, Inc. v. City
of Charlotte, 268 N.C. 720, 152 S.E.2d 199 (1966).
In our judicial system the Superior Court is a court
subordinate to the [appellate courts]. Upon appeal our
mandate is binding upon it and must be strictly followed
without variation or departure. No judgment other than
that directed or permitted by the appellate court may be
-8-
IZYDORE V. CITY OF DURHAM (DURHAM BOARD OF ADJUSTMENT)
Opinion of the Court
entered. Otherwise, litigation would never be ended, and
the supreme tribunal of the state would be shorn of
authority over inferior tribunals.
Id. at 722-23, 152 S.E.2d at 202 (citation and quotation marks omitted).
This same doctrine applies to the present appeal. In Izydore I, we affirmed the
order of the trial court denying Petitioner’s petition for attorneys’ fees, which was the
sole remaining issue in the case. We did not remand for any further proceedings in
the trial court or otherwise expressly contemplate the need for any further action by
that court. Therefore, once our mandate issued, the case was over. See Severance v.
Ford Motor Co., 105 N.C. App. 98, 100, 411 S.E.2d 618, 620 (“‘[A]fter an appeal the
action becomes final and conclusive . . . .’” (quoting In re Griffin, 98 N.C. 197, 199, 3
S.E. 515, 515 (1887)), disc. review denied, 331 N.C. 286, 417 S.E.2d 255 (1992).
Were we to adopt Petitioner’s argument by holding that he was permitted to
file a new petition for attorneys’ fees after the case had been fully adjudicated, we
would be giving him the proverbial “second bite at the apple” — a result that finds no
support in our jurisprudence. See City of Lumberton v. U.S. Cold Storage, Inc., 178
N.C. App. 305, 309-10, 631 S.E.2d 165, 168-69 (2006) (“[A] party may not file suit
seeking relief for a wrong under one legal theory and, then, after that theory fails,
seek relief for the same wrong under a different legal theory in a second legal
proceeding. . . . We can perceive no reason why [the appellant] should be given two
bites at the apple[.]”).
-9-
IZYDORE V. CITY OF DURHAM (DURHAM BOARD OF ADJUSTMENT)
Opinion of the Court
Indeed, our rejection of Petitioner’s argument on this issue is consistent with
the public policy of achieving finality to litigation. See Hicks v. Koutro, 249 N.C. 61,
64, 105 S.E.2d 196, 199 (1958) (“The courts and the public are interested in the
finality of litigation. This idea is expressed in the Latin maxim interest reipublicae
ut sit finis litium, that there should be an end of litigation for the repose of society.”).
“Otherwise, litigation would never be ended, and the supreme tribunal of the state
would be shorn of authority over inferior tribunals.” D & W, Inc., 268 N.C. at 722-23,
152 S.E.2d at 202 (citation and quotation marks omitted).
In sum, “[a]ll things must end — even litigation.” S. Rambler Sales, Inc. v.
Am. Motors Corp., 375 F.2d 932, 938 (5th Cir.), cert. denied, 389 U.S. 832, 19 L.Ed.2d
92 (1967). So too the present lawsuit.3
Conclusion
For the reasons stated above, we affirm the trial court’s 21 July 2014 order.
AFFIRMED.
Judges BRYANT and INMAN concur.
Report per Rule 30(e).
3 Petitioner also argues that counsel for Respondent had an ethical duty under Rule 3.3(a) of
the North Carolina Rules of Professional Conduct to disclose the existence and possible applicability
of N.C. Gen. Stat. § 6-21.7 to Petitioner’s original petition for attorneys’ fees earlier in this litigation.
We express no opinion on this issue as the appellate courts are not the appropriate forum for such
assertions. See Stiller v. Stiller, 98 N.C. App. 80, 83, 389 S.E.2d 619, 620 (1990) (“[I]f [a party] feels
that [opposing] counsel has violated a Rule of Professional Conduct the appropriate forum for that
inquiry is the State Bar.”).
- 10 -