NO.

COA 16-568

DISTRICT 25A

NORTH CAROLINA COURT OF APPEALS

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HILDEBRAN HERITAGE &
)
DEVELOPMENT ASSOCIATION, INC. )
and CITIZENS UNITED TO PRESERVE )
THE OLD HILDEBRAN SCHOOL,
)
)
Plaintiffs-Appellants
)
)
v.
)
From Burke County
)
15 CVS 180
THE TOWN OF HILDEBRAN and
)
FOOTHILLS RECYCLING &
)
DEMOLITION, LLC,
)
)
Defendants-Appellees
)
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MOTION TO FILE BRIEF AMICUS CURIAE OF
ENGSTROM LAW, PLLC IN SUPPORT
OF PLAINTIFFS-APPELLANTS
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RELIEF REQUESTED
Pursuant to Rule 28(i) of the North Carolina Rules of Appellate Procedure,
Engstrom Law, PLLC moves this Court for leave to file the accompanying Brief
Amicus Curiae in support of Plaintiffs-Appellants in the above-captioned matter.
IDENTITY AND INTEREST OF AMICUS CURIAE
Engstrom Law, PLLC (hereinafter Engstrom Law or Amicus) is a
Professional Limited Liability Company organized under the laws of North Carolina
and registered with the North Carolina State Bar. Its only member is Elliot Engstrom,
an attorney licensed to practice law in North Carolina.
Engstrom Law routinely advises clients on issues relating to North Carolinas
Open Meetings Law. It seeks to ensure that the Open Meetings Law is correctly
applied in light of its overall purpose to promote openness in government. Amicus
is of the opinion that the trial courts decision incorrectly applied the statutory
requirements of the Open Meetings Law, and it seeks to ensure that these errors are
corrected.
Further, the Plaintiffs in this litigation sought their attorneys fees pursuant to
N.C.G.S. 143-318.16B, and the trial court declined to award them such fees in part
because it found that the Defendant Town of Hildebran was a prevailing party.
Engstrom Law is regularly contacted by North Carolinians who are considering
suing a public body for violations of the Open Meetings Law but cannot afford to

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hire an attorney. The availability of attorneys fees awards is an important

consideration for Amicus. It therefore seeks to ensure that the Plaintiffs in open
meetings litigation receive any attorneys fees to which they are entitled.
Finally, the sole member of Engstrom Law, PLLC is Elliot Engstrom, an
attorney licensed to practice law in North Carolina. In addition to his private practice,
Engstrom is a Legal Method & Communications Fellow at Elon University School
of Law. He has an academic interest in North Carolinas laws regarding public
records and open meetings, and he therefore seeks to file briefs amicus curiae in
such cases whenever possible.
REASONS WHY AN AMICUS BRIEF IS DESIRABLE
The Plaintiffs in this litigation have proposed to present nine separate issues
on appeal to this Court. While some of these deal with the Open Meetings Law,
others issues include whether testimony was properly excluded by the trial court and
whether the Defendants entered into a valid contract.
Amicus seeks to focus this Courts attention on the Open Meetings Law issues
in this case. By treating these limited issues in a full brief, Amicus will bring
additional clarity. Given that appellate litigation surrounding the Open Meetings
Law is rare, such additional clarity will help inform a decision that could have an
impact for years to come as binding precedent on lower courts.

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Further, Engstrom Law is familiar with the legal issues raised by this case. It
seeks to supplement the arguments of the parties by offering guidance to this Court
on background principles of the Open Meetings Law. In furtherance of its continuing
mission to help North Carolinians hold their public bodies accountable, Amicus
urges this Court to reverse the trial courts ruling to the extent that the lower court
failed to properly apply the Open Meetings Law.
ISSUES OF LAW TO BE ADDRESSED
Amicus seeks to address the following issues of law:
(1) Whether the trial court erred in finding and concluding that the Town did
not violate the Open Meetings Law when Councilman Lee Lowman intentionally
engaged in one-on-one discussions with fellow council members and discussed (1)
whether a meeting agenda would be amended to add a vote on the fate of the Old
Hildebran School and (2) the manner in which council members would vote so as to
avoid the requirements of the Open Meetings Law.
(2) Whether the trial court erred in finding and concluding that the Town did
not violate the Open Meetings Law by failing to provide reasonable public access
to the January 26, 2015 meeting.
(3) Whether the trial court erred in concluding that the January 26, 2015 vote
of the Town to demolish the Old School Building should not be declared null and
void.

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(4) Whether the trial court erred in finding that the Town was a prevailing
party.
(5) Whether the trial court erred in concluding that the Plaintiffs were not
entitled to receive their attorneys fees as a result of the Towns violation of the Open
Meetings Law.
POSITION OF AMICUS CURIAE
It is the position of Amicus that the trial court erred on all five issues of law
to be presented. The trial courts flawed rulings should be reversed, and it should be
ordered to reconsider awarding the Plaintiffs their attorneys fees.
CONCLUSION
For the foregoing reasons, Engstrom Law, PLLC respectfully requests that the
Court grant it leave to file an amicus curiae brief in support of Plaintiffs-Appellants.
Respectfully submitted, this the 1st day of August, 2016.
ELECTRONICALLY SUBMITTED
Elliot Engstrom
N.C. Bar No. 46003
Attorney for Amicus Curiae Engstrom Law, PLLC
Engstrom Law, PLLC
P.O. Box 10249
Greensboro, NC 27404
(336) 365-8750
elliot@engstromlawnc.com

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that he served a copy of the foregoing
MOTION TO FILE BRIEF AMICUS CURIAE OF ENGSTROM LAW, PLLC by
depositing copies, contained in a first-class postage-paid wrapper, into a depository
under the exclusive care and custody of the United States Postal Service, addressed
as follows:
Lawrence D. McMahon, Jr.
Post Office Drawer 1269
Morganton, NC 28680
G. Redman Dill, Jr.
504 East Union Street
Morganton, NC 28655
James B. Hogan
118 North Sterling Street
Morganton, NC 28655
Respectfully submitted, this the 1st day of August, 2016.
ELECTRONICALLY SUBMITTED
Elliot Engstrom
N.C. Bar No. 46003
Attorney for Amicus Curiae Engstrom Law, PLLC
Engstrom Law, PLLC
P.O. Box 10249
Greensboro, NC 27404
(336) 365-8750
elliot@engstromlawnc.com