NO.

COA 16-568

DISTRICT 25A

NORTH CAROLINA COURT OF APPEALS

***************************************
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
)
***************************************
BRIEF OF AMICUS CURIAE ENGSTROM LAW, PLLC
IN SUPPORT OF PLAINTIFFS-APPELLANTS
***************************************
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................iii
ISSUES PRESENTED IN THIS AMICUS BRIEF.............. 1
INTRODUCTION ................................................................... 2
STATEMENT OF THE CASE .............................................. 3
STATEMENT OF FACTS ..................................................... 4
STANDARDS OF REVIEW .................................................. 6
ARGUMENT ........................................................................... 7
I. THE TRIAL COURT ERRED IN FAILING TO FIND
SEVERAL OPEN MEETINGS LAW VIOLATIONS BY THE
TOWN THAT OCCURRED AS A MATTER OF LAW .......... 8

-ii-

A. The trial court erred in failing to find that Councilman

Lowmans one-on-one discussions with other members of the
Town Council violated the Open Meetings Law .................. 8
B. The trial court erred in failing to find that the admitted
practice of Town Council members discussing public business
one-on-one in secret is in violation of the Open Meetings Law
.............................................................................................. 9
C. The trial court erred in failing to find that the January 26,
2015 vote to demolish the Old School Building was in
violation of the Open Meetings Law .................................... 9
II. THE TRIAL COURT ERRED IN FINDING AND
CONCLUDING
THAT
THE
TOWN
PROVIDED
REASONABLE PUBLIC ACCESS TO THE JANUARY 26,
2015 TOWN COUNCIL MEETING ....................................... 11
III. THE TRIAL COURT ERRED IN FAILING TO VOID AND
NULLIFY THE JANUARY 26, 2015 VOTE OF THE COUNCIL
TO DEMOLISH THE OLD SCHOOL BUILDING................ 13
A. The trial court abused its discretion in failing to set aside
the January 26, 2015 vote of the Town Council to demolish
the Old School Building ..................................................... 13
B. Alternatively, this Court should order the trial court to
reconsider whether to set aside the January 26, 2015 vote in
light of all of the Towns numerous violations of the Open
Meetings Law ..................................................................... 15
IV. THE TRIAL COURT ERRED IN FINDING THAT THE
TOWN WAS A PREVAILING PARTY ................................. 15
A. The trial courts ruling on the merits was flawed
............................................................................................ 15
B.The trial court erroneously considered its discretionary
findings as factors that weigh in favor of the Town being a
prevailing party.............................................................. 16
V. IN LIGHT OF THE TRIAL COURTS ERRORS, THIS
COURT SHOULD ORDER THE TRIAL COURT TO
RECONSIDER WHETHER TO AWARD THE PLAINTIFFS
ATTORNEYS FEES .............................................................. 17
CONCLUSION ...................................................................... 18

-iii-

CERTIFICATE OF COMPLIANCE .................................. 19

CERTIFICATE OF SERVICE ............................................ 20
TABLE OF AUTHORITIES
CASES
Boney Publishers, Inc. v. Burlington City Council, 151 N.C. App.
651 (2002)................................................................................ 10
Dockside Discotheque v. Bd. of Adjustment of Southern Pines,
115 N.C. App. 303, disc. rev. denied, 338 N.C. 309 (1994)7, 14,
16
Free Spirit Aviation, Inc. v. Rutherford Airport Auth., 206 N.C.
App. 192 (2010)............................................................. 7, 15-17
Gannett Pacific Corp. v. City of Asheville, 178 N.C. App. 711
(1980)......................................................................................... 6
Garlock v. Wake Cty. Bd. of Educ., 211 N.C. App. 200 (2011)
............................................................................................12-13
H.B.S. Contractors, Inc. v. Cumberland Cty. Bd. of Elections,
122 N.C. App. 49 (1996) ..................................... 6, 7, 10, 14, 16
Knight v. Higgs, 189 N.C. App. 696 (2008).................... 6, 7, 17
News & Observer Pub. Co. v. Coble, 128 N.C. App. 307, affd
per curiam, 349 N.C. 350 (1998) .............................................. 7
Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir.), cert.
denied, 537 U.S. 825 (2002)................................................ 9, 12
STATUTES
N.C.G.S. 143-318.9 ................................................. 7-8, 10-11
N.C.G.S. 143-318.10 ...........................................................8-9
N.C.G.S. 143-318.11 ...........................................................8-9
N.C.G.S. 143-318.12 .......................................................11-13
N.C.G.S. 143-318.16A ................................................... 13, 16
N.C.G.S. 143-318.16B ......................................................... 17

NO. COA 16-568

DISTRICT 25A

NORTH CAROLINA COURT OF APPEALS

***************************************
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
)
***************************************
BRIEF OF AMICUS CURIAE ENGSTROM LAW, PLLC
IN SUPPORT OF PLAINTIFFS-APPELLANTS
***************************************
ISSUES PRESENTED IN THIS AMICUS BRIEF
I.

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.

II.

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.

-2-

III.

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.

IV.

Whether the trial court erred in finding that the Town was a prevailing
party.

V.

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.
INTRODUCTION
On February 24, 2015, the Plaintiffs filed suit against the Defendant Town of

Hildebran (hereinafter the Town) alleging four separate causes of action. First,
Plaintiff Hildebran Heritage & Development Association, Inc. (hereinafter
HHDA) alleged that the Town illegally breached its lease agreement with HHDA.
Second, both Plaintiffs alleged that the Town violated the procedure for the letting
of public contracts prescribed by N.C.G.S. 143-129. Third, the Plaintiffs alleged
that the Town failed to comply with the Open Meetings Law. Fourth, the Plaintiffs
sought a temporary restraining order and preliminary injunction.
This brief of amicus curiae deals solely with the Plaintiffs third cause of
action and the issues before the Court involving North Carolinas Open Meetings
Law. For the reasons stated below, the trial court erred in its Open Meetings analysis
on multiple counts. This Court should correct the legal errors of the trial court and

-3-

then order the lower court to reconsider any discretionary decisions, such as whether
to award attorneys fees to the Plaintiffs.
STATEMENT OF THE CASE
On February 24, 2015, the Plaintiffs filed suit against the Town of Hildebran
in Burke County Superior Court. (R pp 3-36). In their complaint, they alleged that
the Hildebran Town Council took several actions in violation of North Carolinas
Open Meetings Law, and that the Towns January 26, 2015 vote to demolish the Old
Hildebran School should therefore bet set aside. (R pp 11-12). The Town filed its
Answer on April 24, 2015. (R pp 42-51). A jury was impaneled, and the matter was
heard at the July 20, 2015 civil session of Burke County Superior Court. (R p 1).
The trial court entered its judgment on August 11, 2015. (R pp 58-62). It found
that the Town violated the Open Meetings Law on October 27, 2014 as a matter of
law by discussing the remodeling or destroying of the Old Hildebran School during
closed session. (R p 58). The trial court therefore granted the Plaintiffs motion for
a directed verdict that the October 27, 2014 closed session discussion violated the
Open Meetings Law. Id. However, the trial court declined to set aside the January
26, 2015 vote of the Hildebran Town Council to demolish the Old Hildebran School.
(R pp 59-61). The trial court further found that the Defendant was a prevailing
party, and that the Plaintiffs were not entitled to receive their attorneys fees. (R p

-4-

62). The Plaintiffs timely filed their Notice of Appeal on September 30, 2015. (R p
68).
STATEMENT OF FACTS
The Old Hildebran School (hereinafter the Old School Building) is a brick
structure located in Hildebran, North Carolina. (R pp 5 6, 46 6). It served as
Hildebran High School from 1917 to 1974 and thereafter served as Hildebran Junior
High School until the spring of 1987. (R pp 5 7, 46 7). The tower of the Old
School Building is featured on the official seal of the Town of Hildebran (hereinafter
the Town). Id. From 1917 to 1988, the Old School Building was owned by the
Burke County Board of Education. (R pp 5 8, 46 8). The property was
subsequently transferred to the Town. Id.
On September 22, 2014, the possibility of demolishing the Old School
Building was raised publicly for the first time at a special meeting of the Hildebran
Town Council (hereinafter the Town Council). (R pp 7 18, 47 18). On October
27, 2014, the Town Council entered into a closed session to which the general public
did not have access. (R p 58). During this closed session, the Town Council illegally
discussed the remodeling or destroying of the Old School Building. Id. At a January
8, 2015 special meeting of the Town Council, nineteen Town residents spoke in
favor of saving the Old School Building, while two spoke in favor of demolishing
it. (R pp 7 18, 47 18).

-5-

Sometime prior to January 26, 2015, Hildebran Town Councilman Lee

Lowman (hereinafter Councilman Lowman) contacted certain other members of
the Town Council one-on-one to discuss amending the agenda for the Town
Councils January 26 public meeting to include a vote to demolish the Old School
Building. (R p 60). Councilman Lowman initiated such one-on-one contacts to avoid
discussing the amendment of the agenda at an official meeting. Id. He specifically
did not contact the one member of the Town Council that he knew was against
demolishing the Old School Building. Id. At trial, Councilman Lowman indicated
that it was typical for members of the Town Council to have such one-on-one
discussions, during which they would conduct public business. Id.
The Town provided public notice that its January 26, 2015 meeting would be
held in the Town Councils Chambers. (R p 59). It also publicly posted the meeting
agenda, but omitted any mention of a vote to demolish the Old School Building. (R
pp 59-60). While Town meetings are generally held in the Town Councils
Chambers, which has a maximum capacity of 49 people, the Town also owns an
auditorium adjacent to the Town Hall building with a maximum capacity of 500
people. (R p 59). The Town therefore has the ability to hold public meetings in the
larger facility if it anticipates a larger turnout, such as for meetings where
controversial or important topics are to be discussed. (R pp 59-60).

-6-

After the January 26, 2015 meeting began, the Town Council approved a
motion to make two changes to the meeting agenda. (R p 60). First, the Town
Council voted to change the agenda item Original School Building Discussion to
Original School Building Discussion/Vote. Id. Second, it added the agenda item
Old School Building Demolition Quotes. Id. Prior to the January 26 meeting, the
public did not have knowledge that the agenda would be amended to include a vote
on demolishing the Old School Building. Id. Upon learning that the Old School
Building would be discussed, several members of the public requested that the
meeting be moved to the Towns auditorium to accommodate a large capacity, but
the Council claimed that it was prevented from doing so by law. (R pp 59-60). The
Town Council subsequently voted to demolish the Old School Building. (R pp 7
22, 47 22).
STANDARDS OF REVIEW
Conclusions of law drawn by the trial court from its findings of fact are
reviewable de novo on appeal. Knight v. Higgs, 189 N.C. App. 696, 700 (2008),
citing Gannett Pacific Corp. v. City of Asheville, 178 N.C. App. 711, 713 (1980).
A trial courts decision regarding whether to declare an action null and void
due to a violation of the Open Meetings Law can be reversed on appeal only if the
decision is manifestly unsupported by reason and so arbitrary that it could not have
been the result of a reasoned decision. H.B.S. Contractors, Inc. v. Cumberland Cty.

-7-

Bd. of Educ., 122 N.C. App. 49, 55 (1996), citing Dockside Discotheque v. Bd. of
Adjustment of Southern Pines, 115 N.C. App. 303, 307, disc. rev. denied, 338 N.C.
309 (1994). However, this Court may order the trial court to reconsider such
discretionary decisions on remand in light of this Courts findings of law. Knight v.
Higgs, 189 N.C. App. 696, 704 (2008).
The question of which party is the prevailing party is a legal determination
that an appellate court reviews de novo. Free Spirit Aviation, Inc. v. Rutherford
Airport Auth., 206 N.C. App. 192, 201 (2010), citing Smyth ex rel. Smyth v. Rivero,
282 F.3d 268, 274 (4th Cir.), cert. denied, 537 U.S. 825 (2002). Whether to award
attorneys fees to a prevailing party is a decision within the discretion of the trial
court. News & Observer Pub. Co. v. Coble, 128 N.C. App. 307, 311, affd per
curiam, 349 N.C. 350 (1998). However, an appellate court may order a trial court to
reconsider awarding the plaintiffs their attorneys fees on remand. See, e.g., Knight
v. Higgs, 189 N.C. App. 696, 704 (2008).
ARGUMENT
North Carolina public policy requires that the hearings, deliberations, and
actions of [public] bodies be conducted openly. N.C.G.S. 143-318.9. In pursuance
of this public policy, the General Assembly has enacted Chapter 143 Article 33C of
the North Carolina General Statutes, codified at N.C.G.S. 143-318.9 et seq. This
Article 33C is hereinafter referred to as the Open Meetings Law.

-8-

I.

THE TRIAL COURT ERRED IN FAILING TO FIND SEVERAL

OPEN MEETINGS LAW VIOLATIONS BY THE TOWN THAT
OCCURRED AS A MATTER OF LAW.
A. The trial court erred in failing to find that Councilman Lowmans
one-on-one discussions with other members of the Town Council
violated the Open Meetings Law.
The trial court found that Councilman Lee Lowman contacted other Town

Council members one-on-one to discuss amending the agenda for its January 26,
2015 meeting to include a vote to demolish the Old School Building. (R p 60). It
further found that all but one of the other Town Council members were involved in
these one-on-one discussions. Id. However, the trial court did not find that these oneon-one discussions violated the Open Meetings Law. Its failure to do so was in
error.
The agenda for a public meeting is by definition a matter of public business.
As such, the Town Council may only discuss the topic at official open meetings that
are open to the public or closed meetings as allowed by statute. N.C.G.S. 143318.10(c), N.C.G.S. 143-318.11. The one-on-one discussions between
Councilman Lowman and other Town Council members did not take place at an
official meeting open to the public. N.C.G.S. 143-318.10(a). They further did
not take place at a closed session. N.C.G.S. 143-318.11. These one-on-one
discussion were therefore not conducted openly as required by the Open Meetings
Law. N.C.G.S. 143-318.9. The trial court erred in failing to make such a finding.

-9-

B. The trial court erred in failing to find that the admitted practice of
Town Council members discussing public business one-on-one in
secret is in violation of the Open Meetings Law.
At trial, Councilman Lowman indicated that it was typical for Town Council
members to engage in one-on-one communications during which they would
conduct public business. (R p 60). As discussed above, the Open Meetings Law
prohibits the discussion of public business outside of official public meetings or
authorized closed meetings. N.C.G.S. 143-318.10(c), N.C.G.S. 143-318.11.
Councilman Lowman therefore admitted that the Town Council engages in a regular
practice of violating the Open Meetings Law, and the trial court did not find any
evidence to the contrary. The trial court erred in failing to find that this practice was
in violation of the Open Meetings Law.
C. The trial court erred in failing to find that the January 26, 2015
vote to demolish the Old School Building was in violation of the
Open Meetings Law.
The trial court found that Councilman Lowman contacted other Town Council
members one-on-one to discuss adding a vote to demolish the Old School Building
to the January 26, 2015 meeting agenda. (R p 60). The lower court further found that
Council Lowman did so in order to avoid discussing the topic at a meeting open to
the public. Id. The undisputed facts also show that Councilman Lowman specifically
did not contact the one council member who he knew was against demolishing the
Old School Building. Id.

-10-

The January 26, 2015 vote to demolish the Old School Building was the direct
result of the illegal one-on-one communications between Councilman Lowman and
other members of the Town Council. (R pp 58, 60). Without deliberations that took
place illegally behind the scenes, the Town Council would not have been in a
position to abruptly amend its agenda and hold a vote on demolishing the Old School
Building.
The Open Meetings Law exists to ensure that the hearings, deliberations, and
actions of [public] bodies be conducted openly. N.C.G.S. 143-318.9. Its purpose
is to promote openness in the daily workings of public bodies. Boney Publishers,
Inc. v. Burlington City Council, 151 N.C. App. 651, 658 (2002), citing H.B.S.
Contractors, Inc. v. Cumberland County Board of Elections, 122 N.C. App. 49, 54
(1996). It cannot be the case that public bodies may repeatedly violate the Open
Meetings Law only to be vindicated when the final result of their misconduct
suddenly takes place with no prior public notice at an official meeting. In order to
effectuate the purpose of the law, courts must consider whether an action is the result
of proven Open Meetings Law violation, or a pattern of such proven violations. Any
other reading would allow public actors to routinely shield themselves from public
scrutiny by organizing and making important decisions in secret.

-11-

As the January 26, 2015 vote to demolish the Old School Building was the
direct result of numerous Open Meetings Law violations, it was itself a violation of
the Open Meetings Law. The trial court erred in failing to make such a finding.
II.

THE TRIAL COURT ERRED IN FINDING AND CONCLUDING

THAT THE TOWN PROVIDED REASONABLE PUBLIC ACCESS
TO THE JANUARY 26, 2015 TOWN COUNCIL MEETING.
The idea that public bodies must provide notice of their official meetings

cannot be considered in a vacuum. Rather, the public notice and access required by
N.C.G.S. 143-318.12 is just one element of the General Assemblys overall policy
goal of ensuring that the meetings of public bodies be conducted openly. N.C.G.S.
143-318.9.
With this broad picture in mind, it is clear that the Town Council did not
provide reasonable public access to its January 26, 2015 meeting. All but one
member of the Town Council knew that the meeting would involve a discussion of
the Old School Building, a matter of intense public interest. (R p 60). Councilman
Lowmans one-on-one discussions allowed the Town Council to avoid any public
pressure to move the discussion of the Old School Building to a larger venue,
something the Town Council had the ability to do. (R p 59-60). To add insult to
injury, when one Council member and several citizens learned that the Old School
Building would be discussed and asked for the meeting to be moved to the larger

-12-

venue, the Town Council claimed that it was prohibited from doing so by the Open
Meetings Law. Id.
It is technically correct that the Open Meetings Law prohibits moving the
location of a public meeting to a different building without prior notice of at least 48
hours. N.C.G.S. 143-318.12(b)(2). However, this provision clearly is not meant to
reward public officials when they keep the public in the dark about the subject matter
to be discussed at official meeting. It must be read in light of the Open Meetings
Laws purpose to ensure that public meetings are not held in secret or without
prior notice. Garlock v. Wake Cty. Bd. Of Educ., 211 N.C. App. 200, 217 (2011).
Here, the Town Council clearly worked to arrange for a discussion of the Old School
Building to occur without prior notice to the public.
A public body must further provide any information reasonably necessary to
give members of the public the opportunity to attend [a] meeting. Garlock at 226.
The majority of the members of the Town Council knew that the January 26, 2015
meeting would include a discussion of the Old School Building. (R p 60). They
further knew that the Old School Building was a matter of intense public interest,
given that they had just held a special meeting on the subject on January 8, 2015. (R
p 59). By neglecting to inform the public that the Old School Building would be
discussed at the January 26 meeting, the Town Council failed to provide information

-13-

that was reasonably necessary to give members of the public the opportunity to
attend. Garlock, 211 N.C. App. 200, 226.
It was well within the power of the Town to inform the public about the
change in agenda and move the location of the January 26, 2015 meeting to the
larger-capacity auditorium. By not doing so, the Town failed to provide the
reasonable public access required by N.C.G.S. 143-318.12. The trial court erred in
finding otherwise.
III.

THE TRIAL COURT ERRED IN FAILING TO VOID AND

NULLIFY THE JANUARY 26, 2015 VOTE OF THE COUNCIL TO
DEMOLISH THE OLD SCHOOL BUILDING.

A. The trial court abused its discretion in failing to set aside the January
26, 2015 vote of the Town Council to demolish the Old School
Building.
In considering whether to set aside an action that is in violation of the Open
Meetings Law, the trial court must consider six factors enumerated by statute. These
factors include whether the challenged action impaired public access to open
meetings, whether it was an isolated occurrence, and whether it was committed in
bad faith. N.C.G.S. 143-318.16A.
The trial court found that the only violation of the Open Meetings Law
committed by the Town was its illegal discussion of the Old School Building in
closed session on October 27, 2014. This finding framed the trial courts entire
analysis of whether to set aside the January 26, 2015 vote, as the only challenged

-14-

action that it considered was the October 2014 closed session. For example, the trial
court considered:
The extent to which the closed session discussion in October 2014
[a]ffected the substance of the Councils vote on January 26, 2015; (R
p 61) (emphasis added).
Whether the closed session discussion in October 2014 was an isolated
occurrence or was part of a continuing pattern of violations of the Open
meetings Law by the Town Council; (R p 61) (emphasis added).
Whether the closed session discussion in October 2014 was
committed in bad faith for the purpose of evading or subverting the public
policy embodied in the Open Meetings Law. (R p 61) (emphasis added).
As discussed above, the trial court failed to identify several other violations
of the Open Meetings Law, including the one-on-one discussions between
Councilman Lowman and other Town Council members and the January 26, 2015
vote to demolish the Old School Building. The trial court should have considered
how these other violations impacted the January 26 vote. Its decision not to set aside
the vote to demolish the Old School Building is therefore unsupported by reason,
and should be reversed as an abuse of discretion. H.B.S. Contractors, Inc. v.
Cumberland Cty. Bd. of Educ., 122 N.C. App. 49, 55 (1996), citing Dockside
Discotheque v. Bd. of Adjustment of Southern Pines, 115 N.C. App. 303, 307, disc.
rev. denied, 338 N.C. 309 (1994).

-15-

B. Alternatively, this Court should order the trial court to reconsider

whether to set aside the January 26, 2015 vote in light of all of the
Towns numerous violations of the Open Meetings Law.
If this Court finds that the trial courts failure to set aside the January 26, 2015
vote to demolish the Old School Building does not constitute a reversible abuse of
discretion, it should nonetheless order the trial court to reconsider whether to set
aside the January 26, 2015 vote in light of this Courts conclusions of law.
IV.

THE TRIAL COURT ERRED IN FINDING THAT THE TOWN

WAS A PREVAILING PARTY.
A. The trial courts ruling on the merits was flawed.

To be a prevailing party, the Town must at least partially prevail on the

merits of the Plaintiffs claims brought under the Open Meetings Law. Free Spirit
Aviation, Inc. v. Rutherford Airport Auth., 206 N.C. App. 192, 202 (2010). The trial
court failed to find several violations of the Open Meetings Law by the Town that
occurred as a matter of law. These include the Town Councils illegal one-on-one
discussions of public business, the Towns failure to provide reasonable public
access to its January 26, 2015 Town Council meeting, and the illegal vote of the
Town Council to demolish the Old School Building. All of these findings, taken
together, prohibit any ruling in favor of the Town on the merits of the Plaintiffs
Open Meetings Law claims. The trial court therefore erred in finding that the Town
was a prevailing party.

-16-

B. The trial court erroneously considered its discretionary findings as

factors that weigh in favor of the Town being a prevailing party.
The trial court found that the Town was a prevailing party in part because the
Town secured an adjudication that the vote to demolish the Old School Building
and to award the demolition contract to the Defendant Foothills were not null and
void. (R p 61).
Whether to declare [an] action null and void under N.C.G.S. 143318.16A(a) is completely within the discretion of the trial court. Dockside
Discotheque v. Bd. of Adjustment of Town of S. Pines, 115 N.C. App. 303, 307
(1994). For the purposes of determining the prevailing parties, a trial court should
consider only which party prevailed on the merits. Free Spirit Aviation at 201,
citing H.B.S. Contractors, Inc. v. Cumberland Cty. Bd. of Educ., 122 N.C. App. 49,
57 (1996).
In H.B.S. Contractors, this Court considered whether [the plaintiff] prevailed
where it established a violation of the Open Meetings Law and the trial court,
nonetheless, subsequently refused to declare the Boards action void. H.B.S.
Contractors, Inc. v. Cumberland Cty. Bd. of Educ., 122 N.C. App. 49, 56 (1996).
The Court there held that by securing a declaration [that] the Board violated the
Open Meetings Law, the plaintiff prevailed on the primary legal question which,
in [the Courts] estimation, is a significant success. H.B.S. Contractors at 58. It

-17-

considered the trial courts order to leave the [disputed action] intact to be an
ancillary ruling. Id.
Applying these principles to the Plaintiffs case, it is clear that the trial court
erred in weighing its discretionary decision to leave the January 26, 2015 vote intact
as a factor favoring the Town as a prevailing party. Whether to void a decision of
the Town Council is an ancillary ruling, not a primary legal question. H.B.S.
Contractors at 58. The trial court erred in ruling otherwise.
V.

IN LIGHT OF THE TRIAL COURTS ERRORS, THIS COURT

SHOULD ORDER THE TRIAL COURT TO RECONSIDER
WHETHER TO AWARD THE PLAINTIFFS ATTORNEYS FEES.
While N.C.G.S. 143-318.16B authorizes the trial court to award the

prevailing party its attorneys fees, its decision to award such fees is discretionary.
Free Spirit Aviation, Inc. v. Rutherford Airport Auth., 206 N.C. App. 192, 201
(2010). However, after correcting the trial courts legal errors, this Court may order
that the taxing of attorneys fees should be considered by the trial court upon
remand. Knight v. Higgs, 189 N.C. App. 696, 704 (2008).
Here, the trial court made numerous legal errors, including failing to identify
all of the Towns violations of the Open Meetings Law and erroneously concluding
that the Town was a prevailing party. This Court should therefore order that an
award of attorneys fees to the Plaintiffs be reconsidered on remand.

-18-

CONCLUSION
For the reasons stated above, this Court should find that the trial court erred
in failing to hold the Town of Hildebran accountable for its multiple violations of
the Open Meetings Law. This Court should correct the trial courts errors of law and
remand the case for further proceedings consistent with its opinion.
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

-19-

CERTIFICATE OF COMPLIANCE
Pursuant to Rule 28(j) of the Rules of Appellate Procedure, counsel for
Amicus Curiae certifies that the foregoing brief, which is prepared using Times New
Roman 14-point font, is less than 8,750 words (excluding cover, indexes, tables of
authorities, certificates of service, this certificate of compliance and appendixes) as
reported by the word-processing software.
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

-20-

CERTIFICATE OF SERVICE
The undersigned hereby certifies that he served a copy of the foregoing brief
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