. See N.C. Council of Churches v. State, 343 N.C. 117, 468 S.E.2d 58 (1996), aff’g per curiam, 120 N.C. App. 84, 90, 461 S.E.2d 354, 358 (1995). Considering the complex landscape of public-forum jurisprudence and our State courts’ careful examination of TPM restrictions to date, we must first summarize the general principles applicable to Respondent’s claims.
"A trial court is not barred in every case from granting summary judgment before discovery is completed." North Carolina Council of Churches v. State, 120 N.C. App. 84, 92, 461 S.E.2d 354, 359 (1995); Bryant v. Adams, 116 N.C. App. 448, 461, 448 S.E.2d 832, 838-39 (1994), disc. review denied, 339 N.C. 736, 454 S.E.2d 647 (1995). "Further, the decision to grant or deny a continuance is solely within the discretion of the trial judge and will be reversed only when there is a manifest abuse of discretion."
Filed 4 April 1996 Appeal by plaintiffs pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 120 N.C. App. 84, 461 S.E.2d 354 (1995), affirming an order entered by Stephens (Donald W.), J., on 11 August 1993, in Superior Court, Wake County. Heard in the Supreme Court 14 March 1996. Patterson, Harkavy Lawrence, by Burton Craige, for plaintiff-appellants.
"When an amendment would be futile in light of the propriety of summary judgment on a plaintiff's claim, it is not an abuse of discretion for the trial court to deny the amendment." N. Carolina Council of Churches v. State , 120 N.C. App. 84, 93, 461 S.E.2d 354, 360 (1995). B. Negligence
This general rule is not absolute, and this Court has upheld awards of summary judgment when a motion to compel was pending where, for instance, summary judgment was properly granted on sovereign immunity grounds. See Patrick v. Wake Cty. Dep't of Human Servs. , 188 N.C. App. 592, 597-98, 655 S.E.2d 920, 924 (2008) ; see also N.C. Council of Churches v. State of North Carolina , 120 N.C. App. 84, 92, 461 S.E.2d 354, 360 (1995) ("A trial court is not barred in every case from granting summary judgment before discovery is completed." (citations omitted)).
Futility is a well-established basis to deny a motion to amend. See N.C. Council of Churches v. State, 120 N.C. App. 84, 93, 461 S.E.2d 354, 360 (1995) ("When an amendment would be futile in light of the propriety of summary judgment on a plaintiff's claim, it is not an abuse of discretion for the trial court to deny the amendment."). Based on her delay in obtaining the capacity to sue for claims that had not only accrued, but had been identified in Plaintiff's initial lawsuit, as well as the futility of amendment because of applicable statutes of limitations, Plaintiff has not demonstrated that the trial court abused its discretion in denying her motion to amend.
Two elements are required for the "capable of repetition, yet evading review" exception to apply: "(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again." 130 of Chatham, LLC v. Rutherford Elec. Membership Corp., ––– N.C.App. ––––, ––––, 771 S.E.2d 920, 926 (2015) (quoting Boney Publishers, Inc. v. Burlington City Council, 151 N.C.App. 651, 654, 566 S.E.2d 701, 703–04 (2002) ); see also State v. Corkum, 224 N.C.App. 129, 132, 735 S.E.2d 420, 422–23 (2012) (applying this exception to allow the appeal of a criminal defendant who had at most nine months in which to seek confinement credit from the trial court, and if unsuccessful, to file and fully litigate an appeal); N.C. Council of Churches v. State, 120 N.C.App. 84, 88–89, 461 S.E.2d 354, 357–58 (1995) (where group opposed to the death penalty had sought to hold several execution vigils throughout the preceding decade, there was "every reason to believe they intend to hold such vigils at future executions").DHHS's revocation of its No Review Decision satisfies the first element required by the exception: the challenged action was too short in its duration to be fully litigated prior to its cessation or expiration.
Furthermore, because we conclude summary judgment was appropriate at this stage of the proceedings, we dismiss Plaintiff's challenge as to the issue of whether the trial court erred by granting Defendants' motion for summary judgment before Defendants fully complied with the trial court's 3 January 2014 order granting Plaintiff's motion to compel. See North Carolina Council of Churches v. State,120 N.C.App. 84, 93, 461 S.E.2d 354, 360 (1995) (“Since summary judgment was proper on the materials presented at this stage of the proceedings, we need not further address plaintiffs' assertion that the court erred by refusing to compel discovery.”).B. Defendants' Appeal
“A trial court is not barred in every case from granting summary judgment before discovery is completed. Further, the decision to grant or deny a continuance is solely within the discretion of the trial judge and will be reversed only when there is a manifest abuse of discretion.” N.C. Council of Churches v. State, 120 N.C.App. 84, 92, 461 S.E.2d 354, 360 (1995) (citation omitted). “Ordinarily it is error for a court to hear and rule on a motion for summary judgment when discovery procedures, which might lead to the production of evidence relevant to the motion, are still pending and the party seeking discovery has not been dilatory in doing so.” Evans v. Appert, 91 N.C.App. 362, 367, 372 S.E.2d 94, 97 (1988) (citation omitted).
When an amendment would be futile in light of the propriety of summary judgment on a plaintiff's claim, it is not an abuse of discretion for the trial court to deny the amendment." North Carolina Council of Churches v. State, 120 N.C. App. 84, 93, 461 S.E.2d 354, 360 (1995). Here, Plaintiff's proposed amendment (to rest his entire argument for standing as a shareholder on the fifth article of incorporation) would have been futile, because, as discussed above, Defendants were still entitled to summary judgment even under Plaintiff's amended argument.