Opinion
No. COA03-1017
Filed 17 May 2005 This case not for publication
Appeal by plaintiff Al Hashemi from order filed 20 December 2002 by Judge Narley H. Cashwell and order filed 20 February 2003 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 21 April 2004.
Although plaintiff Al Hashemi appealed from the 20 December 2002 order, his argument on appeal only concerns the order filed 20 February 2003.
Clark Bloss Wall, P.L.L.C., by John F. Bloss, for plaintiff-appellant. Womble Carlyle Sandridge Rice PLLC by John C. Cooke and Eric M. Braun, for defendant-appellees.
Wake County No. 02 CVS 13632.
Al Hashemi (Hashemi) (plaintiff) appeals an order filed 20 February 2003, dismissing with prejudice his petition for writ of certiorari to superior court from a decision of the Town Council of Cary (Town Council) denying his request for a variance.
ARH International Company (ARH) is a North Carolina corporation, and Hashemi is the sole shareholder of ARH. On 21 April 2002, ARH submitted a variance request to the Town of Cary. The variance application related to the Town of Cary's riparian buffer protection and preservation ordinance provisions. In its application, ARH claimed the ordinance provisions imposed a substantial hardship on development of the property. As part of its variance application, ARH attached numerous documents which listed ARH as the record owner of the property.
In 1994, ARH quit claimed two adjoining lots, located at 707 and 801 Northeast Maynard Road in Cary, to Hashemi. At all times relevant to this proceeding, however, ARH was listed as the record owner.
After a review of ARH's variance application followed by a hearing on the application, the Town Council denied ARH's application. ARH was represented by counsel at the hearing.
The decision of the Town Council, denying ARH's application, was appealed to superior court. Hashemi prepared and filed a pleading titled "Petition for Writ of Certiorari and in the Alternative Request Declaratory Judgment and Complaint, and Request for Preliminary and Permanent Injunctions." Hashemi attempted to combine in one pleading, two different causes of action seeking on the one hand a writ of certiorari for superior court review of the council's decision and alternatively, a civil action for damages and injunctive relief. In the caption, Hashemi stated he was representing ARH, and named himself as an additional party. In the pleadings, Hashemi stated he was ARH's sole shareholder and a resident of Wake County.
This matter came for hearing on 20 December 2002, before the Honorable Narley Cashwell. The trial court advised ARH and Hashemi to retain legal counsel and entered an order allowing ARH and Hashemi to amend the pleadings and to separate the petition for writ of certiorari and the civil action into two distinct cases. The trial court further ordered ARH and Hashemi to delete from the pleadings all allegations relating to their request for declaratory judgment, damages and injunctive relief. The amended pleading was to be filed by 30 December 2002. However, instead of amending his complaint, plaintiff on 27 December 2002, filed a separate action, alleging the same causes of action as were originally plead.
On 3 January 2003 and again on 13 January 2003, ARH and Hashemi filed amended pleadings. The Town filed motions to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(b) on 8 January 2003. On 28 January 2003, Hashemi filed a petition for writ of supersedeas seeking an order from the Court of Appeals directing the trial court administrator to allocate more time for hearing the motions to dismiss. The petition for writ of supersedeas was denied on 18 February 2003.
On 10 February 2003, a hearing on the motions to dismiss was held before the Honorable Henry W. Hight, Jr. At the conclusion of the hearing, the trial court requested both parties to submit proposed orders for the court's consideration.
On 12 February 2003, apparently in response to Judge Cashwell's advice to ARH and Hashemi to retain legal counsel, ARH and Hashemi delivered a letter to the trial court stating that ARH would not retain legal counsel and that ARH would not pursue any further litigation.
On 20 February 2003, the trial court entered an order dismissing the case based on lack of standing. The trial court made the following findings of fact: (1) ARH was represented by legal counsel at the variance application hearing before the Town Council; (2) ARH's pleading failed to allege specific facts which affirmatively showed how either ARH or Hashemi was a party aggrieved — specifically, the pleading did not name the owner of the property; (3) on 20 December 2002, the court ordered plaintiff to amend its pleading to conform with Batch v. Town of Chapel Hill, 326 N.C. 1, 387 S.E.2d 655 (1990); (4) Hashemi has never been a licensed North Carolina attorney; (5) Hashemi affirmatively represented to the Town, the general public, and to the State of North Carolina that ARH owned the property; (6) ARH was the disclosed, record owner of the property; (7) ARH had the financial ability to retain counsel to represent it in court as ARH retained counsel to represent it before the Town, and offered in open court to pay the court's personnel in order to have additional time to argue its case; (8) the court advised ARH to retain counsel during the 20 December 2002 hearing, and ARH rejected this advice; (9) ARH and Hashemi have been on notice, both of the decision in LexisNexis v. TRaviSHan Corp., 155 N.C. App. 205, 573 S.E.2d 547 (2002), and the need to retain counsel to represent ARH in court, since 8 January 2003; however, Hashemi continued to attempt to perfect ARH's appeal and otherwise represent ARH in this appeal; (10) ARH failed to take the steps necessary to perfect its appeal; and (11) by letter dated 12 February 2003, ARH affirmatively determined it would not retain counsel and ARH would no longer pursue the appeal.
In Batch, our Supreme Court held a petition for a writ of certiorari to review a decision of the town denying a subdivision application was improperly joined with a civil cause of action seeking damages. Batch, 326 N.C. at 4, 387 S.E.2d at 656-57.
In LexisNexis v. TRaviSHan Corp., 155 N.C. App. 205, 207, 573 S.E.2d 547, 548 (2002), this Court stated it is unlawful for any person, except active members of the bar, to represent a corporation in judicial proceedings.
After entry of the dismissal order, Hashemi filed several motions pursuant to N.C. Gen. Stat. § 1A-1, Rules 55(a), 59(a), 59(e), 60(a), 60(b), and 62; and a motion to consolidate these appeals. The trial court entered orders denying these motions. Hashemi has not appealed the orders denying the motions. Hashemi only appeals the order filed 20 February 2003, dismissing with prejudice his petition for writ of certiorari to superior court from a decision of the Town of Cary denying his request for a variance.
Plaintiff currently has a separate appeal pending with this Court in COA04-128, concerning the dismissal of the second action for declaratory judgment and complaint.
The dispositive issue on appeal is whether Hashemi, as ARH's sole shareholder, can maintain a petition for writ of certiorari in superior court even though ARH was the record owner of the property and ARH withdrew as a party to the appeal.
Pursuant to N.C. Gen. Stat. § 160A-381, an adverse decision of a city council is subject to review before superior court by way of writ of certiorari. See N.C.G.S. § 160A-381(c) (2003); White Oak Properties, Inc. v. Carrboro, 313 N.C. 306, 308, 327 S.E.2d 882, 884 (1985). In order to challenge an ordinance, a person must have a "specific personal and legal interest in the subject matter affected by the ordinance and must be directly and adversely affected by the ordinance." Davis v. City of Archdale, 81 N.C. App. 505, 508, 344 S.E.2d 369, 371 (1986); see also Allen v. City of Burlington Bd. of Adjustment, 100 N.C. App. 615, 618, 397 S.E.2d 657, 659 (1990). More specifically, that party must be an aggrieved party to have standing to seek review. See Davis, 81 N.C. App. at 508, 344 S.E.2d at 371; Allen, 100 N.C. App. at 618, 397 S.E.2d at 659.
The petition and evidence presented at the motion to dismiss hearing present sufficient evidence that Hashemi has a legal interest in the property. Specifically, Hashemi presented evidence that he was ARH's sole shareholder, and in 1994 ARH quit claimed the property in question to Hashemi. Although the petition failed to specifically allege whether ARH or Hashemi owned the property in question but rather refers to the property as "[p]laintiffs [sic] property," our Court has held pleadings are to be liberally construed. Lea v. Grier, 156 N.C. App. 503, 507, 577 S.E.2d 411, 415 (2003). We conclude the petition sufficiently alleged Hashemi, as ARH's sole shareholder, was an aggrieved party. Accordingly, Hashemi had standing to present his petition for writ of certiorari to superior court regarding a decision of the Town Council denying his request for a variance.
Reversed and remanded.
Judges ELMORE and GEER concur.
Report per Rule 30(e).