Merherin Indian Tribe v. Lewis ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-882
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
MEHERRIN INDIAN TRIBE, DOROTHY
LEE, JONATHAN CAUDILL, MARGO
HOWARD, ABBY REID, THERESA
LANGSTON, WAYNE MELTON, WAYNE
BROWN, and KELLY BROWN,
Plaintiffs,
v. Hertford County
No. 08 CVS 159
THOMAS LEWIS, DIANE BRYD, AARON
WINSTON, TERRY HALL, PATRICK
RIDDICK, JANET L. CHAVIS, DENYCE
HALL, DOROTHY MELTON, and BEVERLY
MELTON,
Defendants,
DEVONNA MOUNTAIN, DOUGLAS
PATTERSON, AUGUSTUS CHAVIS, JR.,
MARCUS ROBBINS,
Moving or Intervening
Parties.
Appeal by plaintiffs from orders entered 1 October and 8
November 2012 by Judge Gary E. Trawick in Hertford County
Superior Court. Heard in the Court of Appeals 8 January 2014.
Barry Nakell for plaintiff-appellants.
Ragsdale Leggett, PLLC, by William W. Pollock, for
defendant-appellees Janet Chavis, Aaron Winston, Thomas
Lewis, Terry Hall, and Denyce Hall.
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Hudson Law Office, by Bonnor E. Hudson, III, for defendant-
appellee Patrick Riddick.
No brief was submitted for defendants Diane Byrd, Dorothy
Melton, and Beverly Melton.
No brief was submitted for moving or intervening parties
Devonna Mountain, Douglas Patterson, Augustus Chavis, Jr.,
and Marcus Robbins.
BRYANT, Judge.
Where the trial court’s 19 April 2012 consent order is not
ambiguous and plaintiffs fail to present any specific provision
of the Consent Order that defendants violated, we affirm the
trial court’s orders denying plaintiffs’ request for relief
presented as a motion to enforce the Consent Order and a motion
for reconsideration.
Pursuant to North Carolina General Statutes, section 71A-
7.1,
[t]he Indians now residing in small
communities in Hertford, Bertie, Gates, and
Northampton Counties, who in 1726 were
granted reservational lands at the mouth of
the Meherrin River in the vicinity of
present-day Parker's Ferry near Winton in
Hertford County, and who are of the same
linguistic stock as the Cherokee, Tuscarora,
and other tribes of the Iroquois Confederacy
of New York and Canada, shall, from and
after July 20, 1971, be designated and
officially recognized as the Meherrin Tribe
of North Carolina . . . .
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N.C. Gen. Stat. ' 71A-7.1 (2013).
On 23 September 2010, in Hertford County Superior Court,
plaintiffs Meherrin Indian Tribe, Dorothy Lee, Jonathan Caudill,
Margo Howard, Abby Reid, Theresa Langston, Wayne Melton, Wayne
Brown, and Kelly Brown filed a second amended complaint against
defendants Thomas Lewis, Ernest Poole, Diane Byrd, Aaron
Winston, Terry Hall, Patrick Riddick, Janet L. Chavis, Denyce
Hall, Dorothy Melton, and Beverly Melton. Plaintiffs described
the action as part declaratory judgment action, part action to
compel the return of property, and part action to quiet title.
In the complaint, plaintiffs related that prior to 10
November 2007, defendant Thomas Lewis was chief of the Meherrin
Indian Tribe. Following a general body meeting on that date,
Thomas Lewis was removed as chief. On 12 January and 8 March
2008, following general body meetings, defendants Ernest Poole,
Aaron Winston, Terry Hall, Patrick Riddick, and Janet L. Chavis
were removed as officers on the tribal council, and defendant
Diane Byrd was removed from the office of Secretary of the
General Body. Plaintiffs contended that plaintiff Wayne Brown
was elected Chief of the Meherrin Indian Tribe and that
plaintiffs Dorothy Lee, Jonathan Caudill, Margo Howard, Abby
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Reid, Theresa Langston, and Wayne Melton were elected to the
Meherrin Tribal Council.
Plaintiffs sought a declaratory judgment stating that the
removal from office of Thomas Lewis as Chief of the Meherrin
Indian Tribe, of the other defendants as tribal council
officers, and Diane Byrd, as Secretary of the General Body, was
proper. Plaintiffs also requested an injunction to compel
defendants to deliver all real and personal property belonging
to the Meherrin Indian Tribe to plaintiffs. Plaintiff’s action
to quiet title regarded a warranty deed purporting to transfer
title to real property owned by the Meherrin Indian Tribe.
Plaintiffs also claimed that defendants’ engaged in unfair and
deceptive trade practices having fraudulently continued to hold
themselves out as officers of the Meherrin Indian Tribe and
engaged in commerce under the name of the Meherrin Indian Tribe.
Defendants denied plaintiffs’ claims and counterclaimed on
grounds of nuisance and misrepresentation. Defendants also
moved for attorney fees and court costs. Further, defendants
moved for an injunction against plaintiffs to cease holding
themselves out as the governing body of the Meherrin Indian
Tribe.
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This matter, designated an exceptional civil case, was
heard by the Honorable Judge Gary E. Trawick during the Civil
Session of Hertford County Superior Court beginning 16 April
2012. On 19 April 2012, pursuant to an agreement between
plaintiffs and defendants, the trial court entered a consent
order detailing the procedure to be followed in conducting an
election for the office of Meherrin Indian Tribe Tribal Chief
and four tribal council members. The election was to take place
on 26 May 2012. Based on the consent order “[a]ll claims and
counterclaims pending before the Court in the above captioned
matter [were] . . . dismissed with prejudice[.]”
On 17 July 2012, plaintiffs filed a motion to enforce the
Consent Order. Plaintiffs asserted that pursuant to the 26 May
2012 election for officers of the Meherrin Indian Tribe,
plaintiff Wayne Brown was tribal chief and plaintiffs Wayne
Melton, Margo Howard, and Theresa Langston, along with Jermone
James were elected to the tribal council. Plaintiffs further
asserted that defendants violated the 19 April 2012 consent
order by failing to return tribal property, forming a group
named the “Meherrin-Chowanoke Nation,” and representing that
this group was the same as the Meherrin Indian Tribe recognized
by our General Statutes.
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In response, defendants Patrick Riddick, Terry Hall, and
Denyce Hall filed motions for sanctions, arguing that the
allegations made in plaintiffs’ motion to enforce the Consent
Order were unsupported, the relief sought went beyond the scope
of the Consent Order, and that these defendants had incurred
substantial expenses in responding to plaintiffs’ motion.
With the consent of the parties and pursuant to Rule 2.1(e)
of the General Rules of Practice, the matter was heard before
Judge Trawick in New Hanover County Superior Court, with
Hertford County Superior Court retaining subject matter
jurisdiction. The matter came on for hearing on 6 September
2012.
On 1 October 2012, the trial court entered an order in
Hertford County Superior Court in which it concluded that “[t]he
officers of the Meherrin Indian Tribe of North Carolina are
those who were elected on May 26, 2012,” that there was
insufficient evidence to determine whether any party had removed
property from tribal grounds, and that subgroups may form within
the tribe over which the trial court has no control. All
motions for sanctions were denied.
On 12 October 2012, plaintiffs filed a motion for
reconsideration pursuant to Civil Procedure Rule 59 and Rule 60.
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On 8 November 2012, the trial court denied the motion.
Plaintiffs appeal from the 1 October and 8 November 2012 orders.
_______________________________________
On appeal, plaintiffs raise the following issues: whether
the trial court erred in (I) failing to identify the officers of
the Meherrin Indian Tribe; (II) concluding that the consent
order had not been violated; (III) characterizing defendants as
a subgroup of the Meherrin Indian Tribe; and (IV) refusing to
allow plaintiffs an evidentiary hearing.
I
Plaintiffs argue that the trial court committed reversible
error in failing to identify by name the elected officers of the
Meherrin Indian Tribe in the trial court’s 1 October 2012 order.
Specifically, plaintiffs contend the trial court’s 1 October
2012 order is ambiguous, referring to the elected officers of
the Meherrin Indian Tribe only as “those who were elected on May
26, 2012.” We disagree.
“Where a judgment is ambiguous, and thus susceptible to two
or more interpretations, our courts should adopt the
interpretation that is in harmony with the law applicable to the
case.” Blevins v. Welch, 137 N.C. App. 98, 102, 527 S.E.2d 667,
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670 (2000) (citing Alexander v. Brown, 236 N.C. 212, 215, 72
S.E.2d 522, 524 (1952)).
In their brief to this Court, plaintiffs acknowledge that
“[a]ll parties agreed that the officers elected at the 26 May
2012 election were: Chief Wayne Brown was re-elected as Chief,
Wayne Melton and Margo Howard were re-elected to seats on the
Tribal Council, and Jerome James and Theresa Langston were
elected to the Tribal Council.” Plaintiffs further acknowledge
that “the [19 April 2012] Consent Order itself specified that
the following three members of the Tribal Council would continue
to serve on the Council for one year to complete their terms:
Dorothy Lee Livingston, Jonathan Caudill, and Fred Hedgpeth.”
[Plaintiffs argue that] [t]he identities of
the winners of the election and the
continuing Council members were clear and
undisputed. However, anybody reading the
order would not be able to determine the
identities of the officers. It would be
necessary to review the Motion in the Cause
and responses or the transcript of the
September 6 hearing to confirm those names.
. . . Plaintiffs should be able to show
interested parties the 1 October 2012 Order
– one document . . . .
Following the 16 April 2012 hearing, Judge Trawick entered
a consent order on 19 April 2012. By consent of the parties,
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the court entered the 19 April 2012 order, directing the
following:
1. Plaintiffs and Defendants will conduct
an election of the Meherrin Indian Tribe for
the offices of Tribal Chief and four (4)
tribal council members on May 26, 2012 . . .
.
. . .
3. The following three (3) tribal council
members will complete their existing terms
due to expire in one year: Dorothy Lee
Livingston, Jonathan Caudill, and Fred
Hedgpeth[.]
In their 17 July 2012 motion for enforcement of the consent
order, plaintiffs asserted that “[t]he results of the [26 May
2012] election were that Plaintiff Wayne Brown was re-elected
Chief, Wayne Melton and Margo Howard were re-elected to seats on
the Tribal Council, and Jermone James and Theresa Langston were
elected to the Tribal Council.” The record before us, including
the responses to plaintiffs’ 17 July 2012 motion by defendants
Patrick Riddick, Terry Hall, and Denyce Hall, does not reflect
any challenge to the results of the 26 May 2012 election.
The trial court’s 1 October 2012 order concluded that
“[t]he officers of the Meherrin Tribe of North Carolina are
those who were elected on May 26, 2012 pursuant to the Consent
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Order entered in this matter on April 19, 2012.” We do not view
this portion of the trial court’s order as ambiguous.
Plaintiff’s arguments stem from a desire to have the names
of the officers of the Meherrin Indian Tribe of North Carolina
elected on 26 May 2012 stated in one court order; however,
plaintiffs provide no authority compelling such. Accordingly,
we must overrule plaintiff’s argument.
II
Next, plaintiffs argue that the trial court erred in
concluding there was insufficient evidence to show any party had
violated the Consent Order. Specifically, plaintiffs contend
that defendants violated the Consent Order by failing to
participate in the election committee meetings, failing to
participate in the election, and failing to abide by the
election results. We disagree.
We first note that plaintiffs fail to direct us to any
specific provision in the consent order that has been violated.
The Consent Order directed plaintiffs and defendants to conduct
an election for the offices of Tribal Chief and four tribal
council members on 26 May 2012. The election committee was to
consist of three representatives selected by plaintiff’s group
and two representatives selected by defendant’s group. The
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election committee was to administer the election, including
providing an election website, providing notice about the
election, nominations for offices, and facilities for absentee
ballots. The election was to be conducted using a provisional
ballot system. The election committee was to determine if each
voter was a member of the Meherrin Indian Tribe. The consent
order further detailed that no unusual use of tribal property
was to occur until the election committee determined the
election results, and that tribal funds would be expended only
for ordinary operating expenses.
While plaintiffs argue that defendants participated in only
a few election committee meetings rather than all and that
defendants held themselves out as leaders of a tribe with a name
very similar to that of the Meherrin Indian Tribe, plaintiffs
nevertheless fail to allege how this amounts to a violation of
the Consent Order. Plaintiffs’ challenge is overruled.
III
Plaintiffs argue that the trial court erred in
characterizing defendants’ group as a subgroup of the Meherrin
Indian Tribe. Specifically, plaintiffs contend that defendants
who are associated with the group known as the Meherrin-
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Chowanoke Tribe are holding themselves out as the Meherrin
Indian Tribe in violation of the consent order. We disagree.
Plaintiffs cite no provision of the 19 April 2012 consent
order that precludes any party to the consent order from using
the name “Meherrin-Chowanoke” or advocating on behalf of a group
referred to as the Meherrin-Chowanoke Indian Tribe.
Accordingly, we overrule plaintiffs’ argument.
IV
Plaintiffs argue that the trial court erred in failing to
grant them an evidentiary hearing on the issue of whether
defendants removed tribal property.
[Specifically, plaintiffs contend that]
[d]efendants received hundreds of thousands
of dollars of federal ANA grants to perform
research to support an application for
federal recognition. No documents from that
research were in the Tribal Headquarters
when Plaintiffs took possession of it and no
documents from that research have ever been
turned over to Plaintiffs.
. . .
Pursuant to the Consent Order, Defendants
were required to produce them to the newly
elected Chief . . . .
We disagree.
Plaintiffs point to no provision of the 19 April 2012
consent order that compels defendants to turn over property
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acquired as a result of defendants’ application for federal
recognition, and we find none. We note that in plaintiff’s
second amended complaint, plaintiffs moved for an order
compelling defendants to deliver to plaintiffs all books,
records, materials, funds, keys, material relating to the
control of the Meherrin Indian Tribe web site, and any real and
personal property in defendants’ possession or control belonging
to the Meherrin Indian Tribe. However, upon entry of the
consent order “[a]ll claims and counterclaims pending before the
Court in the []matter [were] . . . dismissed with prejudice.”
Accordingly, we overrule plaintiffs’ argument.
Affirmed.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).