IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA17-1374-2

Filed: 15 December 2020

Wake County, No. 16 CVS 12965

THE NEW HANOVER COUNTY BOARD OF EDUCATION, Plaintiffs,

v.

JOSH STEIN, in his capacity as Attorney General of the State of North Carolina, 

Defendant,

 and

NORTH CAROLINA COASTAL FEDERATION and SOUND RIVERS, INC., 

Intervenors.

Appeal by plaintiff from order entered 12 October 2017 by Judge Paul C. 

Ridgeway in Wake County Superior Court. Originally heard in the Court of Appeals 

20 June 2018. De Luca v. Stein, 261 N.C. App. 118, 820 S.E.2d 89 (2018). Upon 

remand from the Supreme Court of North Carolina by opinion issued 3 April 2020.

New Hanover Cty. Bd. of Educ. v. Stein, 374 N.C. 102, 840 S.E.2d 194 (2020). 

Stam Law Firm, PLLC, by Paul Stam and R. Daniel Gibson, for plaintiffappellants.

Attorney General Joshua H. Stein, by Deputy Solicitor General James W. 

Doggett and Special Deputy Attorney General Marc Bernstein, for defendantappellee.

No supplemental briefing by intervenors.

TYSON, Judge.
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

Opinion of the Court

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I. Background

Smithfield Foods, Inc. and its subsidiaries: Brown’s of Carolina, Inc., Carroll’s 

Foods, Inc., Murphy Farms, Inc., Carroll’s Foods of Virginia, Inc., and Quarter M 

Farms, Inc. (collectively, the “Companies”), own and operate swine farms throughout 

eastern North Carolina. In the mid-to-late 1990s, millions of gallons of swine waste 

overflowed the containment lagoons after storms and spilled into North Carolina 

waterways. The waste contaminated the waterways and impacted groundwater 

supplies. 

The North Carolina Department of Justice Environmental Division (the 

“DOJ”) filed a number of lawsuits against swine farms from which the waste had 

overflowed. See, e.g., Murphy Family Farms v. N.C. Dep’t of Env’t & Natural Res., 

359 N.C. 180, 605 S.E.2d 636 (2004).

After months of negotiations, then Attorney General, Michael F. Easley, and 

the Companies entered into an agreement (the “Agreement”) under which the 

Companies “agreed to lead the development and implementation of environmentally 

superior swine waste management technologies in North Carolina” and to pay for 

those costs. 

The Companies additionally agreed to “pay each year for 25 years an amount 

equal to one dollar for each hog in which the Companies . . . have had any financial 
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

Opinion of the Court

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interest in North Carolina during the previous year, provided, however, that such 

amount shall not exceed $2 million in any year.” 

The Attorney General retained sole authority under the Agreement to award 

and distribute funds held in a private bank account to organizations of his choosing, 

if the funds are “used to enhance the environment of the State.” The Attorney 

General developed the Environmental Enhancement Grant Program (the “EEG 

Program”) to receive requests and facilitate the administration of these funds. 

The Attorney General, after receiving EEG Program recommendations, retains

sole discretion to select recipients of the funds and to allocate the amount awarded to 

each recipient, up to $500,000 per award. Once the grant recipients are selected, the 

recipient requests reimbursement, and the Attorney General orders the bank to 

disburse the funds. Since the Agreement was signed, the Attorney General has 

selected and distributed more than $24 million dollars in payments. The recipients 

and programs are not limited to the geographical areas of swine production, water 

quality improvement, or elimination of pollution, but include conservation projects 

and storm sediment. 

Former Plaintiff, Francis X. De Luca (“De Luca”), filed his complaint on 18 

October 2016. De Luca sought to preliminary and permanently enjoin the Attorney 

General from distributing payments made pursuant to the Agreement to anyone 

other than the Civil Penalty and Forfeiture Fund. See N.C. CONST. art. IX, § 7(a) 
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

Opinion of the Court

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(“the clear proceeds of all penalties and forfeitures and of all fines collected . . . shall 

be faithfully appropriated and used exclusively for maintaining free public schools”).

The Attorney General filed a motion to dismiss De Luca’s complaint on 19 

December 2016. Plaintiff amended his complaint to add the New Hanover County 

Board of Education (“the Board”) as a Plaintiff and to substitute Josh Stein, the

current Attorney General of North Carolina, as Defendant on 25 January 2017. 

The superior court entered an order granting the Attorney General’s motion 

for summary judgment on 12 October 2017. That same day, the superior court denied 

Plaintiffs’ motion for summary judgment, dismissed Plaintiffs’ complaint with 

prejudice, and dissolved the preliminary injunction. Plaintiffs filed their notice of 

appeal to this Court and a motion for temporary stay at the trial court on 25 October 

2017. 

This Court reversed the superior court. See De Luca v. Stein, 261 N.C. App. 

118, 136, 820 S.E.2d 89, 100 (2018). Further, we held De Luca lacked standing to 

assert the civil penalty claim, but we determined the Board had standing as an 

“intended beneficiary of a portion of those monies.” Id. at 126-28, 820 S.E.2d at 94-

95. The Attorney General appealed to the Supreme Court based upon a dissent in 

this Court. De Luca did not seek review of his dismissal for lack of standing and 

subsequently filed a motion to be removed from the case. New Hanover Cty. Bd. of 

Educ., 374 N.C. at 113, n.3, 840 S.E.2d at 202 n.3. 
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

Opinion of the Court

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The day before oral arguments were heard at the Supreme Court, the Governor 

of North Carolina signed 2019 N.C. Sess. Laws 250 into law. The Board argued § 5.7 

of 2019 N.C. Sess. Laws 250 (“§ 5.7”) controlled the disposition of “the bulk of the 

money in controversy.” 

Our Supreme Court, over a dissent, reversed and remanded, holding these 

funds are not “the clear proceeds of all penalties and forfeitures and of all fines 

collected . . . shall be faithfully appropriated and used exclusively for maintaining 

free public schools.” N.C. CONST. art. IX, § 7(a). The Supreme Court “remand[ed] 

this case to the Court of Appeals for any additional proceedings not inconsistent with 

this opinion.” New Hanover Cty. Bd. of Educ., 374 N.C. at 123-24, 840 S.E.2d at 209.

In a subsequent Order, the Supreme Court deleted a portion of footnote 8 in its 

opinion and substituted in part:

[T]he parties agreed that the provisions of newly-enacted 

N.C.G.S. § 147-76.1 would not have the effect of mooting 

this appeal . . . we will refrain from attempting to construe 

N.C.G.S. § 147-76.1 or to apply its provisions to the facts of 

this case. We express no opinion as to what effect, if any, 

N.C.G.S. § 147-76.1 has on the agreement or on any past or 

future payments made thereunder.

New Hanover Cty. Bd. of Educ., 374 N.C. 260, n.8, 840 S.E.2d at 209 n.8 (emphasis 

supplied).

II. Jurisdiction
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

Opinion of the Court

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This case returns to this Court upon remand from the Supreme Court of North 

Carolina “to the Court of Appeals for any additional proceedings not inconsistent with 

this opinion.” New Hanover Cty. Bd. of Educ., 374 N.C. at 123-24, 840 S.E.2d at 209.

No issue of Plaintiff’s lack of standing was raised before or ruled against the Board

in the Supreme Court nor does the Attorney General assert the Board’s lack of 

standing in supplemental briefing before this Court.

III. Summary Judgment Against the Board

Section 5.7 became effective 1 July 2019 and provides: 

SECTION 5.7.(a) Article 6 of Chapter 147 of the General 

Statutes is amended by adding a new section to read:

§ 147-76.1. Require deposit into the State treasury of funds 

received by the State. (a) Definition. –For purposes of this 

section, the term “cash gift or donation” means any funds 

provided, without valuable consideration, to the State, for 

use by the State, or for the benefit of the State. (b) 

Requirement. –Except as otherwise specifically provided 

by law, all funds received by the State, including cash gifts 

and donation, shall be deposited into the State treasury. 

Nothing in this subsection shall be construed as exempting 

from the requirement set forth in this subsection funds 

received by a State officer or employee acting on behalf of 

the State. (c) Terms Binding. –Except as otherwise 

provided by subsection (b) of this section, the terms of an 

instrument evidencing a cash gift or donation are a binding 

obligation of the State. Nothing in this section shall be 

construed to supersede, or authorize a deviation from the 

terms of an instrument evidencing a gift or donation 

setting forth the purpose for which the funds may be used.

2019 N.C. ALS 250, 2019 N.C. Sess. Laws 250, 2019 N.C. Ch. 250, 2019 N.C. HB 200

(emphasis supplied). See also N.C. Gen. Stat. § 147-76 (2019).
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

Opinion of the Court

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The Board argues “no genuine issue of material fact exists that, the Attorney 

General received funds for the benefit of the State for a specific purpose and they are 

entitled to relief under § 5.7. As noted by the Supreme Court, both parties concede § 

5.7 did not moot the case. 374 N.C. 260, n.8, 840 S.E.2d at 209 n.8. The Attorney 

General’s supplemental brief “[did] not want to take a position on behalf of the 

Attorney General’s office on specifically how § 5.7 would be enforced.” 

Neither party asserts there are any disputed facts to require further remand

to the superior court. Our Supreme Court remanded to this Court to determine “any

additional proceedings not inconsistent with this opinion,” and that remand includes 

determination of the applicability of the statute in question. New Hanover Cty. Bd. of 

Educ., 374 N.C. at 124, 840 S.E.2d at 209.

The Attorney General is an agent in the executive branch of the State. 

Pursuant to the Agreement, he retains sole authority to determine recipients and 

order disbursement of the public funds held in a private bank account. Section 5.7 

mandates “all funds received by the State, including cash gifts and donations, shall 

be deposited into the State treasury.” N.C. Gen. Stat. § 147-76.1.

The Attorney General agrees he “accepts the funds [from the Companies] on 

behalf of the State.” Section 5.7 controls the disposition of “all funds received by the 

State,” whether cash gifts or donations. The statute clearly mandates these are 
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

Opinion of the Court

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public funds, they belong to the taxpayers of this State, and are required to “be 

deposited into the State treasury.” N.C. Gen. Stat. § 147-76.1.

We disagree with our dissenting colleague that § 5.7 cannot apply to the case 

before us because of the date of its enactment. The Attorney General did not raise 

that issue on appeal, and he further agrees “courts may sometimes apply new law to 

the facts of a case even if the new law postdates the complaint.” Our courts have 

held, “[t]he general rule is an appellate court must apply the law in effect at the time 

it renders its decision.” State v. Currie, 19 N.C. App. 241, 243, 198 S.E.2d 491, 493 

(1973) (citations omitted) (emphasis supplied). 

An exception to the general rule exists if applying the statute “would result in 

manifest injustice or there is statutory direction or legislative history to the contrary.” 

Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 711, 40 L. Ed. 2d 476, 488 (1974). The 

Attorney General does not argue applying § 5.7 to this case would result in “manifest 

injustice.” Nor does the Attorney General argue there is statutory direction not to 

apply § 5.7 to pending litigation, nor is there any legislative history to indicate that § 

5.7 does not to apply to these admittedly public funds.

Section 5.7 applies to “all funds received by the State” and appellate courts 

must apply the law in effect at this time. Currie, 19 N.C. App. at 243, 198 S.E.2d at 

493. Section 5.7 applies to all present and future funds paid under the Agreement 

and mandates their deposit into the State treasury.
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

Opinion of the Court

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The legislative branch of government is without question 

the policy-making agency of our government. The General 

Assembly is well equipped to weigh all the factors 

surrounding a particular problem, balance the competing 

interests, provide an appropriate forum for a full and open

debate, and address all of the issues at one time.

Cooper v. Berger, ___ N.C. App. ___, ___, 837 S.E.2d 7, 21 (2019) (citations and 

alterations omitted), disc. review allowed, 373 N.C. 584, 837 S.E.2d 886 (2020). Both 

chambers of the legislature enacted, and the Governor signed § 5.7 into law the day 

before the Supreme Court heard other issues on appeal in this case. The applicability 

of § 5.7 to these facts is properly before us. As purely a question of law on undisputed 

facts, there is no need for remand to the trial court. 

IV. Amended Complaint Claim § 5.7

Rather than arguing the application of § 5.7 would result in manifest injustice 

or provide a statutory direction to the contrary, the Attorney General argues the 

Board is seeking an entirely new claim for relief. The dissenting opinion overly 

generalizes precedent and states the Board’s arguments concerning § 5.7 are novel. 

The Board’s allegations are sufficient to provide the Attorney General with notice of 

the transactions and occurrences showing entitlement to relief and is well within the 

scope of this Court’s jurisdiction. 

Rule 8 of the Rules of Civil Procedure only requires a “short and plain 

statement” of “the transactions, occurrences, or series of transactions or occurrences.” 

The only question is whether the complaint “gives notice of the events and 
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

Opinion of the Court

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transactions” that allows “the adverse party to understand the nature of the claim.” 

Haynie v. Cobb, 207 N.C. App. 143, 149, 698 S.E.2d 194, 199 (2010). 

Similarly, “[t]he prayer for relief does not determine what relief ultimately will 

be awarded. Instead, the court should grant the relief to which a party is entitled, 

whether or not demanded in his pleading.” Holloway v. Wachovia Bank & Trust Co., 

339 N.C. 338, 346, 452 S.E.2d 233, 237-38 (1994). 

North Carolina Rules of Civil Procedure Rule 54(c) specifically provides “every 

final judgment shall grant the relief to which the party in whose favor it is rendered 

is entitled, even if the party has not demanded such relief in his pleadings.” N.C. Gen. 

Stat. § 1A-1, Rule 54(c) (2019). Rule 54(c)’s purpose is to provide “whatever relief is 

supported by the complaint’s factual allegations and proof at trial.” Holloway, 339 

N.C. at 346, 452 S.E.2d at 237. If the party makes a demand for relief, it is “not 

crucial that the wrong relief had been demanded.” Id. at 346, 452 S.E.2d at 238

(citations omitted). 

The Board’s original prayer for relief seeks deposit of these funds into the State 

treasury in the Civil Penalty and Forfeiture Fund, and the pleadings cite Article IX

of the North Carolina Constitution. The complaint alleges the Attorney General, 

while representing and as an agent of the State “entered into an agreement with [the 

Companies]” and attaches a copy of that Agreement. 
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

Opinion of the Court

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The amended complaint also alleges the Companies are depositing $2 million 

dollars of admittedly public funds per year into a private bank account for public 

environmental purposes and under the Agreement, the Attorney General purports to 

exercise sole authority to allocate and distribute these sums to his chosen recipients. 

The Board requested a preliminary and permanent injunction against the Attorney 

General to prevent distribution of these funds. The prayer for relief alleges a current 

and ongoing course of future payments of public funds under the Agreement. 

These allegations provide sufficient notice to the Attorney General and states 

a claim under § 5.7. Whether the funds should be deposited into the State treasury 

for further appropriation and distribution or be earmarked for the Civil Penalty and 

Forfeiture Fund is immaterial as juxtaposed with deposits of public funds into a 

private bank account with distributions therefrom and recipients thereof within the 

Attorney General’s sole discretion and control. The Board’s complaint states a claim 

for relief. See id. at 345-46, 452 S.E.2d at 237-38.

Our Supreme Court remanded to this Court the task of determining additional 

proceedings regarding § 5.7. New Hanover Cty. Bd. of Educ., 374 N.C. at 124, 840 

S.E.2d at 209. This Court “must apply the law in place at the time it renders its 

decision.” Currie, 19 N.C. App. at 243, 198 S.E.2d at 493. The Board’s amended 

complaint “gives notice of the events and transactions” and allows “the adverse party 

to understand the nature of the claim.” Haynie, 207 N.C. App. at 149, 698 S.E.2d at 
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

Opinion of the Court

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199. This Court may issue an opinion and judgment and grant relief to which the 

party is entitled, even if the party has not demanded such relief in his pleadings.” 

N.C. Gen. Stat. § 1A-1, Rule 54(c).

V. North Carolina Constitution

“Legislative—rather than executive—authority over the State’s expenditure of 

funds was intrinsic to the State’s founding.” Cooper v. Berger, ___ N.C. App. at ___, 

837 S.E.2d at 16 (citations and internal quotations omitted). In Cooper v. Berger, the 

Governor claimed the right to allocate certain federal grants designated to the State. 

The General Assembly disagreed and passed their budget to prevent the 

Governor from access to the federal grants. Id. at ___, 837 S.E.2d at 12. This Court

relied upon the North Carolina Constitution and the General Assembly’s authority 

and purpose to appropriate federal funds and grants, and held the General Assembly

rightfully reallocated the funds. Id. at ___, 837 S.E.2d at 9-16. “Nothing shows that 

the founders of this State, in drafting our Constitution, intended for the Executive 

Branch to wield such authority over a category of funds . . . and that it could do so 

free from legislative control, appropriation, and substantial oversight.” Id. at ___, 837 

S.E.2d at 21-22. 

North Carolina’s courts have not permitted members of the executive branch

to exercise unbridled appropriation or expenditure of unbudgeted public funds. “The

Attorney General is not only the State’s chief law enforcement officer but a steward 
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

Opinion of the Court

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of our liberties.” In re Investigation by Attorney General, 30 N.C. App. 585, 589, 227 

S.E.2d 645, 648 (1976). 

The stated purpose of the public funds being used for environmental purposes 

was not changed by the statute. The statute mandates the location and depository 

where the public money is to be deposited and held. All funds due or held under the 

Agreement must be paid and deposited into the State treasury, rather than into a 

private bank account under the exclusive control and discretion of the Attorney 

General.

Further, “[p]ursuant to Section 7(2) of Article III of the North Carolina 

Constitution, it shall be the duty of the Attorney General: (6) To pay all moneys 

received for debts due or penalties to the State immediately after the receipt thereof 

into the treasury.” N.C. Gen. Stat. § 114-2(6) (2019). Our Supreme Court held “the 

payments contemplated by the agreement did not constitute penalties[.]” New 

Hanover Cty. Bd. of Educ., 374 N.C. at 123, 840 S.E.2d at 209. Where the “debts due” 

and amounts currently held, and where future annual payments are to be paid to the 

State pursuant to the Agreement, are not in dispute. See N.C. Gen. Stat. § 147-

76.1(b).

The State Treasurer must receive, hold, and account for the disbursement of 

these funds in accordance with the stated environmental purposes in the Agreement. 

“No money shall be drawn from the State treasury but in consequence of 
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

Opinion of the Court

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appropriations made by law, and an accurate account of the receipts and expenditures 

of State funds shall be published annually.” N.C. Const. art. V, § 7(1). Section 5.7 

requires all public funds held and due under the Agreement from the Companies to 

be deposited into the State treasury. N.C. Gen. Stat. § 147-76.1.

VI. Conclusion

(a) Definition. –For purposes of this section, the term “cash 

gift or donation” means any funds provided, without 

valuable consideration, to the State, for use by the State, 

or for the benefit of the State. (b) Requirement. –Except as 

otherwise specifically provided by law, all funds received 

by the State, including cash gifts and donation, shall be 

deposited into the State treasury. Nothing in this 

subsection shall be construed as exempting from the 

requirement set forth in this subsection funds received by a 

State officer or employee acting on behalf of the State.

N.C. Gen. Stat. § 147-76.1(a)-(b) (emphasis supplied). 

“[A]n appellate court must apply the law in effect at the time it renders its 

decision.” Currie, 19 N.C. App. at 243, 198 S.E.2d at 493 (citations omitted). “When 

the language of a statute is clear and without ambiguity, it is the duty of this Court 

to give effect to the plain meaning of the statute, and judicial construction of 

legislative intent is not required.” Diaz v. Div. of Soc. Servs., 360 N.C. 384, 387, 628 

S.E.2d. 1, 3 (2006) (citations omitted). 

No party challenged the Board’s standing to seek funds from that public source 

for the benefit of New Hanover County public schools and their programs, consistent 

with the environmental purposes for which the funds may be used. “[T]he legal 
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

Opinion of the Court

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theory set forth in the complaint does not determine the validity of the claim[.]” Enoch 

v. Inman, 164 N.C. App. 415, 417, 596 S.E.2d 361, 363 (2004) (citation omitted). “Rule 

54(c) provides that every final judgment shall grant the relief to which the party in 

whose favor it is rendered is entitled, even if the party has not demanded such relief 

in his pleadings.” Holloway, 339 N.C. at 345, 452 S.E.2d at 237 (internal quotation 

marks omitted). 

In the absence of any disputed issues of fact and the applicability of the statute 

purely a question of law, we reverse and remand to the trial court for entry of an 

order to compel the Companies and the Attorney General to transfer and deposit all 

funds presently held and those to be paid and received from the Companies under the 

Agreement in the future into the State treasury in compliance with § 5.7. N.C. Gen. 

Stat. § 147-76.1. It is so ordered. 

REVERSED AND REMANDED. 

Judge BERGER concurs.

Judge BRYANT dissents with separate opinion. 
No. COA17-1374-2 – New Hanover Cty. Bd. of Educ. v. Stein

BRYANT, Judge, dissenting.

I. Introduction

The majority has held that the trial court erred in granting summary judgment 

in favor of the State based on 2019 N.C. Sess. Laws 250, sec. 5.7(a), (c) (codifying N.C. 

Gen. Stat. § 147-76.1, effective 1 July 2019). Because I do not believe the New 

Hanover County Board of Education (“the Board”) has standing to argue this issue, I 

respectfully dissent from the majority’s opinion reversing and remanding this case.

II. Standing

In its original appeal to this Court, the Board did not raise the issue of sec. 5.7. 

It could not, as that law was only passed during the pendency of the appeal. This 

Court did not address that issue. Nor, as the majority concedes, did our Supreme 

Court address the issue, save in a footnote, noting that “we will refrain from 

attempting to construe N.C.G.S. § 147-76.1 or to apply its provisions to the facts of 

this case. We express no opinion as to what effect, if any, N.C.G.S. § 147-76.1 has on 

the agreement or on any past or future payments made thereunder.” New Hanover 

Cty. Bd. of Educ. v. Stein, 374 N.C. 102, 124 n.8, 840 S.E.2d 194, 209 n.8 (2020) as 

modified, 374 N.C. 260 (N.C. May 18, 2020).
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

BRYANT, J., dissenting

2

In short, neither the trial court, this Court, nor our Supreme Court initially 

addressed this issue. Rather, in consideration of the issue before it, our Supreme 

Court held that 

the Court of Appeals erred by determining that the record 

disclosed the existence of genuine issues of material fact 

that precluded the entry of summary judgment in favor of 

either party and remanding this case to the Superior 

Court, Wake County, for a trial on the merits, . . . [and that] 

the trial court correctly decided to enter summary 

judgment in favor of the Attorney General on the grounds 

that the payments contemplated by the agreement did not 

constitute penalties for purposes of article IX, section 7.

Id. at 123, 840 S.E.2d at 209. The Supreme Court remanded the matter to this Court 

“for any additional proceedings not inconsistent with this opinion.” Id. at 124, 840 

S.E.2d at 209.

The issue raised by the Board concerning sec. 5.7 is novel. It was not addressed 

by the trial court, nor by our Supreme Court. It is not, therefore, an “additional 

proceeding” as contemplated by the Supreme Court’s mandate, but an entirely new 

proceeding which a trial court of competent jurisdiction must rule on before this Court 

may consider arguments. The majority’s statement that the Supreme Court’s 

“remand includes determination of the applicability of the statute in question,” is 

simply not the case.

“Our Supreme Court has long held that where a theory argued on appeal was 

not raised before the trial court, the law does not permit parties to swap horses 

between courts in order to get a better mount in the appellate courts.” State v. Shelly,
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

BRYANT, J., dissenting

3

181 N.C. App. 196, 206–07, 638 S.E.2d 516, 524 (2007) (citation omitted). Given that 

the Board has not yet raised this issue before the trial court, it is clear that the issue 

of sec. 5.7 was not a suitable “additional proceeding” as expressed by the Supreme 

Court’s mandate. “On the remand of a case after appeal, the mandate of the reviewing 

court is binding on the lower court, and must be strictly followed, without variation 

and departure from the mandate of the appellate court.” Collins v. Simms, 257 N.C. 

1, 11, 125 S.E.2d 298, 306 (1962) (citation omitted). Our review on remand is properly 

limited to those issues the Board previously raised––sec. 5.7 is not among them.

Nor do I believe that the Supreme Court’s mandate enables us to consider 

issues not properly raised before the trial court. Our jurisdiction as an appellate court 

is well-defined. See N.C. Const. art. IV, § 12(1) (“The Court of Appeals shall have 

such appellate jurisdiction as the General Assembly may prescribe.”); N.C. Gen. Stat. 

§ 7A-26 (“[T]he Court of Appeals . . . ha[s] jurisdiction to review upon appeal decisions 

of the several courts of the General Court of Justice and of administrative agencies, 

upon matters of law or legal inference, in accordance with the system of appeals 

provided in this Article.”). I am unaware of any precedent which would permit us to 

overstep our jurisdictional authority and consider this issue for the first time on 

appeal. The majority’s references to Rule 8 and Rule 54(c) of the Rules of Civil 

Procedure as allowing relief to a party even if the party has not demanded such relief 

in its pleadings is inapposite. The Rules of Civil Procedure apply to our trial courts. 
NEW HANOVER CTY. BD. OF EDUC. V. STEIN

BRYANT, J., dissenting

4

See N.C. Gen. Stat. § 1A-1, Rule 1 (“Scope of Rules”) (“These rules shall govern the 

procedure in the superior and district courts of the State of North Carolina in all 

actions and proceedings of a civil nature except when differing procedure is prescribed 

by statute.”); cf. N.C.R. App. P. Rule 1(b) (“Scope of Rules”) (“These rules govern 

procedure in all appeals from the courts of the trial division to the courts of the 

appellate division. . . .). The majority points to no authority which authorizes this 

appellate court to act with the statutory authority conferred upon our trial courts to 

enter civil judgments pursuant to Rule 54(c). Our appellate courts are authorized to 

determine whether the trial courts properly applied the Rules of Civil Procedure. We 

are not authorized to substitute those rules for the rules which govern our review on 

appeal.

III. Conclusion

I believe the appropriate venue for the Board’s claim under sec. 5.7 is in the 

trial court. It is premature for this Court to rule on such a claim before a trial court 

has done so. I would therefore dismiss any arguments concerning sec. 5.7 as unripe 

and hold that the Board lacks the standing to raise them until they have been 

addressed by a trial court of competent jurisdiction. In accordance with the Supreme 

Court’s mandate, and as stated in my previous dissent in this matter, I would find no 

error in the trial court’s ruling to grant summary judgment in favor of the State.

For the foregoing reasons, I respectfully dissent.