Opinion
No. COA10-1187
Filed 19 April 2011 This case not for publication
Appeal by plaintiff from judgment entered 1 June 2010 by Judge Michael A. Paul in Beaufort County District Court. Heard in the Court of Appeals 21 February 2011.
Manning, Fulton Skinner, P.A., by Michael S. Harrell, for plaintiff-appellant. Legal Aid of North Carolina, Inc., by David E. Caddigan, Theodore O. Fillette, III, and Andrew Cogdell, for defendant-appellee.
Beaufort County No. 10 CVD 162.
Plaintiff landlord Shalom House Apartments ("Shalom House") and tenant defendant Irene Sofaro entered into a lease agreement for apartment 305 in the Shalom House Apartment Complex, a Rural Housing Service development that provides housing for disabled adults, at 1255 Cowen Farm Road in Washington, North Carolina. Ms. Sofaro's fiancé, Clifton Gilliam, also lived in the apartment along with Ms. Sofaro, despite not being on the lease agreement.
On 2 December 2009, Shalom House sent Ms. Sofaro a letter asking her to either provide proof of domicile for Mr. Gilliam or to complete an application adding Mr. Gilliam to the lease by 7 December 2009. When Ms. Sofaro did not reply to the 2 December 2009 letter, Shalom House sent her a notice indicating that her tenancy would be terminated after 30 days.
Ms. Sofaro failed to surrender possession and, on 28 January 2010, Shalom House filed a complaint for summary ejectment in the small claims division of the Beaufort County District Court. On 10 February 2010, the presiding magistrate ordered that Ms. Sofaro be removed from the apartment.
However, prior to the issuance of the ejectment order, on or about 1 February 2010, Shalom House accepted Ms. Sofaro's February 2010 rent payment. Shalom House proffered to the Court that, just prior to accepting the February rent payment from Ms. Sofaro, it employed a new site manager who was unfamiliar with its policies concerning the collection of rent after the institution of a summary ejectment proceeding. Shalom House asserts that its policy was to not accept rent payments after the institution of an ejection proceeding and that it did not intend to waive that policy in this instance. No other rent payments were accepted after February.
On 18 February 2010, Ms. Sofaro filed notice of appeal to the district court, and thereafter filed an answer to Shalom House's complaint, in which she also asserted a counterclaim alleging housing discrimination.
On 19 May 2010, Ms. Sofaro's appeal of the ejectment order was heard. With the parties' consent, Ms. Sofaro's housing discrimination counterclaim was severed for later disposition. Prior to hearing evidence in the case, based upon the arguments of the parties' counsel and the stipulated facts in the case, the court found that Shalom House had waived its right to remove Ms. Sofaro from the premises. A written order memorializing this ruling was entered on 1 June 2010. Ms. Sofaro dismissed her counterclaim without prejudice on 25 June 2010.
Shalom House now appeals.
Prior to addressing the merits of the appeal, we note that Ms. Sofaro has filed a motion to dismiss the appeal as moot. Ms. Sofaro alleges, that on 9 June 2010, she entered into an Addendum to Lease with Shalom House, effective 1 August 2010, creating a new one-year term lease. Ms. Sofaro alleges that this new lease constitutes a novation, extinguishing the preexisting lease and barring Shalom House from exercising a forfeiture of the new lease upon alleged defaults under the prior lease.
Shalom House argues that its appeal should not be dismissed because the lease effective 1 August 2010 was not included in the settled record on appeal and Ms. Sofaro has not moved to amend the record on appeal in order to include it. However,
"[w]henever during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law."
In re Peoples, 296 N.C. 109, 147-48, 250 S.E.2d 890, 912 (1978) (citing Benvenue Parent-Teacher Ass'n v. Nash Cty. Bd. of Educ., 275 N.C. 675, 680, 170 S.E.2d 473, 477 (1969); Crew v. Thompson, 266 N.C. 476, 481, 146 S.E.2d 471, 475 (1966); In re Assignment of Sch. Children, 242 N.C. 500, 502, 87 S.E.2d 911, 913 (1955); Savage v. Kinston, 238 N.C. 551, 552, 78 S.E.2d 318, 319 (1953);
1 Strong's N.C. Index 3rd Actions § 3, Appeal Error § 9 (1976)), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979).
Furthermore, "[u]nlike the question of jurisdiction, the issue of mootness is not determined solely by examining facts in existence at the commencement of the action." Id. at 148, 250 S.E.2d at 912. "If the issues before a court or administrative body become moot at any time during the course of the proceedings, the usual response should be to dismiss the action." Id. (citing Allen v. Georgia, 166 U.S. 138, 139, 41 L. Ed. 949, 949 (1897); People ex rel. Wallace v. Labrenz, 411 Ill. 618, 662, 104 N.E.2d 769, 772, cert. denied, 344 U.S. 824, 97 L. Ed. 642 (1952); 20 Am. Jur. 2d Courts § 81 (1965)); see also Simeon v. Hardin, 339 N.C. 358, 370, 451 S.E.2d 858, 866 (1994) (emphasis added).
Appeal dismissed.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).