IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-568

Filed: 21 March 2017

Burke County, No. 15 CVS 180

HILDEBRAN HERITAGE & DEVELOPMENT ASSOCIATION, INC., and

CITIZENS UNITED TO PRESERVE THE OLD HILDEBRAN SCHOOL, Plaintiffs

v.

THE TOWN OF HILDEBRAN and FOOTHILLS RECYCLING & DEMOLITION, 

LLC, Defendants

Appeal by plaintiffs from judgment entered 11 August 2015 and order entered 

14 September 2015 by Judge Joseph N. Crosswhite, in Burke County Superior Court. 

Heard in the Court of Appeals 4 October 2016.

Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., by Jason White and Amber R. 

Mueggenburg, for plaintiff-appellants.

Byrd, Byrd, McMahon, & Denton, P.A., by Lawrence D. McMahon, Jr. and G. 

Redmond Dill, Jr., for defendant-appellee Town of Hildebran.

The Starnes Law Firm, by James B. Hogan, for defendant-appellee Foothills 

Recycling & Demolition, LLC.

Engstrom Law, PLLC, by Elliot Engstrom, for amicus curiae Engstrom Law, 

PLLC.

CALABRIA, Judge.

Where the meeting of the town council was held openly and in view of the 

public, the trial court did not err in concluding that it did not violate the Open 

Meetings Law. Where the only evidence of unreasonable limitation of opportunity 

for access to the meeting was the fact that the venue could not accommodate all 
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present, the trial court did not err in concluding that the town council did not violate 

the Open Meetings Law.

Where the trial court declared the contract for demolition of a building null 

and void, and the building was subsequently destroyed in a fire, the issue of whether 

the trial court erred in granting a partial directed verdict is moot. Where plaintiffs 

failed to demonstrate an abuse of discretion, the trial court did not abuse its 

discretion in declining to award attorney’s fees. We affirm in part, and dismiss in 

part.

I. Factual and Procedural Background

The Old Hildebran School (“Old School”) was built in 1917, and has since been 

viewed as a town landmark. Two additions to the Old School were completed in 1924 

and 1937, and in the 1950s a breezeway was added to connect the older portions of 

the building to the newer high school structures. The Old School functioned as both 

a Junior High and High School from its opening in 1917 until 1987, when new school

buildings were built in town. The Town of Hildebran (“Town”) acquired the Old 

School from the Burke County Board of Education in 1988.

The Old School was first discussed at a 22 September 2014 special meeting of 

the Hildebran Town Council (“Town Council”). At this meeting, Council Member Lee 

Lowman (“Lowman”) brought up the physical state of the school, expressing his belief 

that the Old School was beyond repair and was both a safety and fire hazard. Council 
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Member Jamie Hollowell (“Hollowell”) then requested that “hard copy bids” be 

solicited for costs of both demolition and repair of the school, in order to make an 

informed decision. Virginia Cooke (“Cooke”), Council Member and town mayor, 

stated that she had solicited a quote for costs to demolish the school.

The Town Council next discussed the Old School at its 27 October 2014 

regularly scheduled meeting. There were two discussions concerning the Old School 

at the 27 October 2014 meeting. First, the Town Council considered a resolution that 

would exempt it from following the formal bidding process for projects costing less 

than ninety thousand dollars, which failed. Second, the Town Council entered into a 

closed session to “discuss matters relating to the location or expansion of industries 

or other businesses in the area served by the public body, including agreement on a 

tentative list of economic development incentives that may be offered by the public 

body in negotiations” citing N.C. Gen. Stat. § 143-318.11(a)(4). Later, at trial, the 

evidence showed that the Old School’s future was discussed during the closed session 

rather than a discussion pertinent to “the location or expansion of industries or other 

businesses[.]”

The Town Council next discussed the Old School at the regularly scheduled 

meeting on 24 November 2014, where a presentation was given regarding the 

possibility of historic rehabilitation. The Old School was otherwise not discussed any 

further at the 24 November 2014 meeting.
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Public interest in the fate of the Old School began to grow in late November 

and early December of 2014. The trial court found that “at least one Council member 

and the Mayor knew that public interest in the fate of the old school building was 

very high[.]” At the Town Council’s December 2014 regular meeting, Cooke 

announced that there would be a public forum to allow citizens to discuss options for 

the Old School, and the forum was scheduled for 8 January 2015, as a special meeting.

At the 8 January 2015 special meeting, Cooke announced which portions of the 

school would be “affected” by demolition. Twenty-one members of the public spoke, 

each addressing opinions as to the fate of the school, with nineteen of the twenty-one

speakers in favor of saving the Old School. The Town Council held another special 

meeting on 23 January 2015, at which the school was not discussed.

The Town Council’s next meeting was its regularly scheduled meeting on 26 

January 2015. The Town Council posted the agenda for this meeting, as was its 

routine, on its website. The published agenda for the 26 January 2015 Town Council 

meeting showed that the Town Council would discuss the Old School, but there was 

no indication that the Town Council would vote upon the Old School’s fate at the 

meeting. Even though there was no vote scheduled on the agenda, the meeting room 

was full for the 26 January 2015 meeting. Around twenty to twenty-five members of 

the public were permitted to enter the meeting room to voice their opinions, however 

they were not permitted to remain in the room once having done so. At least one 
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member of the public and one Council Member requested the meeting to be relocated 

to the Town auditorium, a standalone structure adjacent to the Town Hall complex. 

The relocation request was denied. The reason for denying the request was that a 

change in location would have required the Town Council to give at least forty-eight 

hours public notice, pursuant to N.C. Gen. Stat. § 143-318.12(a).

The evening before the 26 January 2015 meeting, Lowman communicated with 

Cooke and all members of the Council, except for Councilman Wendell Hildebran 

(“Hildebran”). The purpose of the conversations between Lowman and the others was 

to (1) discuss his intention to amend the agenda and call for a vote as to the fate of 

the school and (2) determine whether the Council Members would support his effort 

to amend the agenda and call for a vote. Lowman did not contact Hildebran because 

he knew he would not support Lowman’s amendment to the agenda, and Lowman 

believed that Hildebran would inform the public of the plan to amend the agenda.

Based on Lowman’s conversations with Cooke and other Town Council 

members, Lowman made a motion to amend the agenda at the 26 January 2015 

meeting from “Original School Building Discussion” to “Original School Building 

Discussion/Vote[.]” The trial court found that “[p]rior to the meeting held on January 

26, 2015, the public did not have knowledge that the agenda would be amended or 

the nature of the amendment to the agenda.” Hildebran requested that the vote be 

tabled until the Town’s 23 March 2015 meeting. 
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The motion to amend the agenda passed, and Hildebran was the only member 

to oppose the amendment. The agenda was further amended to add “Old School 

Building Demolition Quotes under Old Business” because Cooke had informed 

Lowman, prior to the 26 January 2015 meeting, that she had received demolition 

quotes. The Town voted to demolish the Old School and to award the demolition 

contract to Foothills Recycling & Demolition, LLC (“Foothills”) on 26 January 2015.

On 24 February 2015, Hildebran Heritage & Development Association, Inc.

(“HHDA”), and Citizens United to Preserve the Old Hildebran School (“Citizens 

United”) (collectively, “plaintiffs”), filed a complaint against the Town and Foothills 

(collectively, “defendants”), alleging breach of contract, failure to comply with N.C. 

Gen. Stat. § 143-129 et seq. (the procedure for government bodies taking bids on public 

contracts), and failure to comply with N.C. Gen. Stat. § 143-318.9 et seq. (the “Open 

Meetings Law”). In addition, plaintiffs sought a temporary restraining order and a 

preliminary injunction to prevent the demolition of the Old School. On 20 March 

2015, Foothills filed its answer and motions to dismiss, alleging failure to state a 

claim upon which relief can be granted, lack of capacity by Citizens United to file a 

lawsuit, and plaintiffs’ lack of standing. On 24 April 2015, the Town filed its answer.

A bench trial was held before the Superior Court of Burke County. At trial, at 

the conclusion of plaintiffs’ evidence, defendants moved for a partial directed verdict 

on the issue of the validity of the contract between the Town and Foothills. On 3 
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September 2015, the trial court entered an order on this motion, granting it in favor 

of defendants, and holding that “the evidence . . . is insufficient as a matter of law to 

establish that the contract between the Defendants to demolish the School Building 

is invalid[.]”

On 11 August 2015, the trial court entered its judgment on plaintiffs’ 

complaint. It first noted that plaintiffs had alleged four different violations of the 

Open Meetings Law: (1) that the Town Council had discussed remodeling or 

destroying the Old School during the 27 October 2014 closed session meeting; (2) that 

the Town Council had failed to provide reasonable access to the 26 January 2015 

meeting; (3) that Lowman had engaged in one-on-one discussions outside of the open 

sessions; and (4) that the Town Council had voted to amend its agenda at the 26 

January 2015 meeting. With respect to the first allegation, the trial court 

acknowledged that the discussion during the closed session meeting on 27 October 

2014 constituted a violation of the Open Meetings Law. Nonetheless, the trial court 

concluded that, notwithstanding this violation, “the vote of the Defendant’s Town 

Council to demolish the old school building and the award of the demolition contract 

to the Defendant Foothills should not be declared null and void.”

With respect to plaintiffs’ remaining allegations, the trial court concluded that 

the measures taken to make the 26 January 2015 meeting accessible to the public 

were “reasonable under all the circumstances existing at that time and substantially 
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complied with the Open Meetings Law[,]” that the evidence with respect to the oneon-one discussions and vote to amend was “insufficient as a matter of law to establish 

that any of these other acts were in violation of the Open Meetings Law[,]” and that 

therefore defendants were entitled to a directed verdict with respect to these 

allegations.

The trial court then considered whether to award attorney’s fees. The court 

concluded that, as both parties had succeeded on a substantial issue in the case, both 

were “prevailing parties” under statute. In its discretion, the court declined to award 

attorney’s fees to either side.

From the trial court’s order granting a partial directed verdict, and from the 

trial court’s judgment, plaintiffs appeal.

II. Directed Verdict

In their third argument, which we choose to address first, plaintiffs contend 

that the trial court erred in entering a directed verdict in favor of defendants as to 

the claim that the demolition contract was null and void. Due to newly revealed 

information, however, we hold that this issue is moot.

At oral arguments before this Court, it was revealed by the parties that the 

Old School, during the pendency of the appeal, had caught fire and burned down. The 

fact that the parties did not consider this information to be pertinent to be brought to 
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the attention of this Court is itself troubling. This information would not have been 

brought to the attention of the Court, but for a fortuitous question from the Court.

Where parties contract with reference to specific property 

and the obligations assumed clearly contemplate its 

continued existence, if the property is accidentally lost or 

destroyed by fire or otherwise, rendering performance 

impossible, the parties are relieved from further 

obligations concerning it. . . . Before a party can avail 

himself of such a position, he is required to show that the 

property was destroyed, and without fault on his part.

Sechrest v. Forest Furniture Co., 264 N.C. 216, 217, 141 S.E.2d 292, 294 (1965)

(citation and quotations omitted). In the instant case, it is clear that the Old School 

was completely destroyed by fire, through no fault of either party. Likewise, the 

contract for the demolition of the Old School clearly contemplated its continued 

existence, at least until the contract was completed.

Had this information been available at trial, it would clearly have supported 

the trial court’s determination that the contract was null and void. Performance of 

the contract was rendered impossible by the destruction of the Old School by fire. 

However, the record contains no evidence as to when the Old School was destroyed 

by fire; moreover, the trial court’s order on the motion for a directed verdict seems to 

imply that, as of the entry of that order, the trial court was unaware of the Old 

School’s destruction, had the fire even occurred at that time. As such, this new 

information has no bearing on the trial court’s order.
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It does, however, have bearing on the ultimate disposition of this issue. The 

destruction of the Old School renders performance under the contract impossible. 

Certainly, even if the contract was not null and void when the trial court entered its 

order, the contract is null and void now. Even were we to agree with plaintiffs’ 

contentions and remand this issue, the outcome would be the same; the trial court 

would grant a directed verdict, holding the contract to be null and void as a result of 

the destruction of the Old School. We therefore hold that this matter is moot, and 

dismiss this argument accordingly.

III. The Open Meetings Law

In their first and second arguments, plaintiffs contend that the Town violated 

the Open Meetings Law, both by purposefully conducting sub-quorum meetings, and 

by failing to provide reasonable public access. We disagree.

A. Standard of Review

“Issues of statutory construction are questions of law, reviewed de novo on 

appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). 

“Whether a violation of the Open Meetings Law occurred is a question of law. We 

therefore apply de novo review to this portion of the decision of the trial court.” 

Knight v. Higgs, 189 N.C. App. 696, 700, 659 S.E.2d 742, 746 (2008).

B. One-on-One Meetings
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First, plaintiffs contend that the Town violated the Open Meetings Law by 

permitting Lowman to conduct one-on-one meetings.

It is the public policy of our State that “hearings, 

deliberations, and actions of [public] bodies be conducted 

openly.” N.C. Gen. Stat. § 143-318.9 (2005). Accordingly, as 

a general rule, “each official meeting of a public body shall

be open to the public, and any person is entitled to attend 

such a meeting.” N.C. Gen. Stat. § 143-318.10(a) (2005).

Gannett Pac. Corp. v. City of Asheville, 178 N.C. App. 711, 714, 632 S.E.2d 586, 588 

(2006); see also N.C. Gen. Stat. §§ 143-318.9 and -318.10(a) (2015). Plaintiffs contend 

that the Town, a public body, violated this public policy, in that Lowman contacted 

members of the Town Council individually and in private, rather than openly.

Plaintiffs attempt to analogize these facts with those in News & Observer 

Publishing Co. v. Interim Bd. of Educ., 29 N.C. App. 37, 223 S.E.2d 580 (1976). In 

that case, the defendant created a special “committee of the whole” in order to enact 

business without invoking the Open Meetings Law. This Court acknowledged that 

certain grounds might exist to form a closed session committee of the whole, such as 

theft or embezzlement, but held that “we do not think a board can evade the 

provisions of statutes requiring its meetings to be open to the public merely by 

resolving itself into a committee of the whole.” Id. at 49, 223 S.E.2d at 588.

We hold, however, that plaintiffs’ analogy is inapplicable. In News & Observer, 

the defendant board met to conduct votes in closed session, in violation of the Open 

Meetings Law. Plaintiffs do not allege, however, that Lowman conducted any 
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business during these one-on-one meetings. Rather, Lowman discussed with other 

members of the Town Council his plan to present a motion to amend at the meeting 

proper. Even assuming arguendo that Lowman’s conduct was designed to avoid the 

protections of the Open Meetings Law, the vote itself took place at the 26 January 

2015 meeting, at which the public was present, minutes were taken, and the votes of 

the Town Council were recorded. Unlike News & Observer, in which a closed session 

was held in violation of the Open Meetings Law, this meeting was held in view of the 

public, with members of the public able to speak, and with records taken of the 

proceedings. As such, we hold that the trial court did not err in concluding that the 

Town did not violate the Open Meetings Law.

C. Reasonable Public Access

Plaintiffs further contend that the Town failed to provide reasonable public 

access to the 26 January 2015 meeting.

Pursuant to the Open Meetings Law, the court must consider a defendant’s 

actions “according to the standard of reasonableness of opportunity for public access 

to the meetings.” Garlock v. Wake Cty. Bd. of Educ., 211 N.C. App. 200, 201, 712 

S.E.2d 158, 162 (2011). Plaintiffs contend that the venue used for the meeting was 

inadequate to address the public’s interest, that between twenty and twenty-five 

people were forced to stand outside the meeting room, and that no equipment was 

available to permit these excess attendees to observe or hear what transpired during 
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the meeting. Plaintiffs contend that whether the opportunity for public access was 

reasonable is a question of fact for the jury, and that the trial court erred in ruling on 

it as a matter of law.

However, “[w]hether a violation of the Open Meetings Law occurred is a 

question of law.” Knight, 189 N.C. App. at 700, 659 S.E.2d at 746. As such, it was 

appropriate for the trial court to determine this issue on a motion for directed verdict. 

The trial court’s order set out numerous facts, which are supported by the evidence, 

in support of its determination as a matter of law that opportunity for public access 

was reasonable, and that no violation of the Open Meetings Law resulted. We agree. 

We decline to find that a lack of overflow seating or external speakers, absent more, 

constitutes an unreasonable failure of access. We therefore hold that the trial court 

did not err in holding, as a matter of law, that there was reasonable opportunity for 

access to the meeting under the Open Meetings Law.

IV. Attorney’s Fees

In their fourth argument, plaintiffs contend that the trial court erred in 

declining to award attorney’s fees based upon defendants’ purported violation of the 

Open Meetings Law. We disagree.

A. Standard of Review

“When an action is brought pursuant to [the Open Meetings Law], the court 

may make written findings specifying the prevailing party or parties, and may award 
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the prevailing party or parties a reasonable attorney's fee, to be taxed against the 

losing party or parties as part of the costs.” N.C. Gen. Stat. § 143-318.16B (2015). 

“Such an award is discretionary under the statute.” Knight, 189 N.C. App. at 704, 659 

S.E.2d at 748.

B. Analysis

In its judgment, the trial court found that both plaintiffs and the Town 

succeeded on significant issues in the litigation, and therefore found that “the 

Plaintiffs and the Defendant [Town of] Hildebran are both prevailing parties.” In an 

exercise of its discretion, the trial court declined to award attorney’s fees, and ordered 

each party to bear its own costs. On appeal, plaintiffs contend this ruling was an 

abuse of discretion.

Plaintiffs’ argument is premised on the fact that “the directed verdict granted 

in favor of the Town was erroneous.” However, we have already held that the trial 

court did not err in granting a directed verdict in favor of defendants. Plaintiffs 

present no additional arguments to support their contention that the trial court 

abused its discretion in declining to award attorney’s fees. We hold, therefore, that 

the trial court did not abuse its discretion.

V. Conclusion

The trial court did not err in concluding as a matter of law that the Town 

substantially complied with the Open Meetings Law, including providing reasonable 
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access to the 26 January 2015 meeting. The trial court did not abuse its discretion in 

declining to award attorney’s fees. We dismiss plaintiffs’ arguments with respect to 

the trial court’s order for a partial directed verdict.

AFFIRMED IN PART, DISMISSED IN PART.

Judge TYSON concurs.

Judge BRYANT concurs in part and dissents in part.
No. COA16-568 – Hildebran Heritage & Dev. Ass’n, Inc. v. The Town of Hildebran

BRYANT, Judge, concurring in part and dissenting in part.

Because I believe the trial court erred in directing a verdict when it concluded, 

contrary to the facts, that one-on-one meetings conducted by Councilman Lowman 

did not violate the Open Meetings Law, I respectfully dissent from that portion of the 

majority opinion.

In determining the sufficiency of the evidence to withstand 

a motion for a directed verdict, all of the evidence which 

supports the non-movant’s claim must be taken as true and 

considered in the light most favorable to the non-movant, 

giving the non-movant the benefit of every reasonable 

inference which may legitimately be drawn therefrom and 

resolving contradictions, conflicts, and inconsistencies in 

the non-movant’s favor.

Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989) (emphasis added) 

(citation omitted).

Allegations that a party violated the Open Meetings 

Law are considered by the Superior Court in its role as a 

trier of fact.

“It is well settled in this jurisdiction that 

when the trial court sits without a jury, the 

standard of review on appeal is whether there 

was competent evidence to support the trial 

court’s findings of fact and whether its 

conclusions of law were proper in light of such 

facts.” Shear v. Stevens Bldg. Co., 107 N.C. 

App. 154, 160, 418 S.E.2d 841, 845 (1992). If 

supported by competent evidence, the trial 

court’s findings of fact are conclusive on 

appeal. Finch v. Wachovia Bank & Tr. Co., 

156 N.C. App. 343, 347, 577 S.E.2d 306, 308–

09 (2003). “Conclusions of law drawn by the 
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BRYANT, J., concurring in part and dissenting in part

2

trial court from its findings of fact are 

reviewable de novo on appeal.” Food Town 

Stores v. City of Salisbury, 300 N.C. 21, 26, 

265 S.E.2d 123, 127 (1980).

Gannett Pacific Corp. v. City of Asheville, 178 N.C. App. 

711, 713, 632 S.E.2d 586, 588 (2006). Whether a violation 

of the Open Meetings Law occurred is a question of law. We 

therefore apply de novo review to this portion of the 

decision of the trial court.

Knight v. Higgs, 189 N.C. App. 696, 699–700, 659 S.E.2d 742, 745–46 (2008).

North Carolina’s public policy requires that hearings, deliberations, and 

actions of public bodies be conducted openly. N.C. Gen. Stat. § 143-318.9 (2015). As 

a general rule, “each official meeting of a public body shall be open to the public, and 

any person is entitled to attend such a meeting.” N.C. Gen. Stat. § 143-318.10(a) 

(2015). A “public body” is defined as

any elected or appointed authority, board, commission, 

committee, council, or other body of [North Carolina], . . . 

or other political subdivisions or public corporations in 

[North Carolina] that (i) is composed of two or more 

members and (ii) exercises or is authorized to exercise a 

legislative policy-making, quasi-judicial, administrative, or 

advisory function.

Id. § 143-318.10(b).

An “official meeting” is defined as “a meeting, assembly, or gathering together 

at any time or place or the simultaneous communication by conference telephone or 

other electronic means of a majority of the members of a public body . . . .” Id. § 143-

318.10(d). “By the plain language of the statute, in order to be an official meeting, a 
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BRYANT, J., concurring in part and dissenting in part

3

majority of the members of the public body must be present.” Gannett Pac. Corp., 

178 N.C. App. at 715, 632 S.E.2d at 589. “However, a social meeting or other informal 

assembly or gathering together of the members of a public body does not constitute 

an official meeting unless it is called or held to evade the spirit and purposes of this 

Article.” N.C.G.S. § 143-318.10(d) (emphasis added).

At trial, Councilman Lowman was called as a witness by plaintiff and testified 

at length about the propriety of the “one-on-one” discussions with council members 

and the mayor:

Q. Have you had any occasions at any -- at any point in 

time . . . to discuss a matter pertaining to the demolition of 

the old school building one-on-one with, say, the mayor?

A. I have talked one-on-one with the mayor and one-on-one 

with the council.

Q. And are there also examples where other members of 

the council have talked one-on-one with the mayor about 

the fate of the old school building?

A. Yes.

Q. And those would be one-on-one discussions that were 

had individually, rather than calling a meeting to talk 

about it collectively?

A. Correct. A meeting is considered three, three of us 

together, three council or two council and the mayor -- or 

three of us and the mayor. 

Q. And you’re aware, then, that you can have those one-onone discussions --
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4

A. Uh-huh. 

Q. -- and avoid calling a meeting. 

A. Correct. 

Q. And if the mayor’s having discussions or if you’re having 

discussion one-on-one with a council member about the fate 

of the old building, you can do that individually and avoid 

having to call a meeting and have the public sit in and 

listen, correct? 

A. That is correct. 

Q. And that’s happened, has it not, with regard to the 

demolition of the old school building? 

A. It has, both, demolition and rehab. 

Q. But, but, in particular, it has in terms of demolition, 

correct? 

A. That is correct. 

Q. And, again, no member of the public’s going to be privy 

to those one-on-one discussions that you’re having 

regarding demolition of the building, for example, with the 

mayor, correct?

A. That is correct.

Q. No member of the public’s going to be privy to the 

information you’re discussing . . . one-on-one with 

members of the council with the mayor, correct? 

A. That is correct.

Q. Have you had meetings where you met with two of the 

other council members? 
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BRYANT, J., concurring in part and dissenting in part

5

A. No.

Q. The reason you haven’t done that is because that would 

constitute a meeting, correct? 

A. That is correct.

Q. And you don’t want to do that, correct?

A. That is correct.

. . . .

Q. And you didn’t want to have it be a matter of public 

record, that you planned on amending the agenda, did you?

A. I didn’t make that call until the week of the meeting.

Q. But you certainly had enough time to discuss that oneon-one with those council members.

A. I asked them if they were ready to vote, yes.

Q. And that was outside of the public meeting.

A. Correct.

Q. And that was pertaining specifically to the demolition 

of the old school building.

A. Demolition versus the rehab. I was not swaying their 

votes. It was just were they ready.

Q. And you had that discussion.

A. Yes.

Q. Outside of a public meeting.

A. Yes.
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Q. And you knew that there would be no record of that that 

would be available to the public.

A. That is correct.

. . . . 

Q. And, ultimately, the council decided and voted to allow 

you to amend the agenda, correct?

A. That is correct.

Q. And did each of those members that you had those oneon-one conversations with -- did they vote in support of 

amending the agenda?

A. As far as I know, yes. Except for one.

Q. Did you have a one-on-one conversation with Mr. 

Hildebrand [sic] beforehand?

A. No, I knew where he stood.

Q. So the reason you didn’t have a conversation with him 

is because you knew he’d be opposed to amending the 

agenda.

A. There was -- He was opposed and I was for. It was plain 

as day, yes.

Q. Okay. So you avoided having that conversation with 

him based upon that.

A. I don’t speak to Mr. Hildebrand [sic].

Q. Well, whether you do or not, the reason you didn’t have 

the discussion with him, as you did with the others that 

voted for your position to amend the agenda, was because 

you knew he wouldn’t be in favor of it, correct?
HILDEBRAN HERITAGE & DEV. ASS’N, INC. V. THE TOWN OF HILDEBRAN

BRYANT, J., concurring in part and dissenting in part

7

A. That is correct.

Q. And he would let the public know about it, correct?

A. Correct.

The trial court made the following relevant findings of fact:

14. Prior to the meeting on January 26, 2015, Councilman 

Lee Lowman contacted certain other Council members oneon-one to inquire about amendment of the agenda for the 

January 26, 2015 meeting to include a vote to demolish the 

old school building.

15. Councilman Lee Lowman contacted certain other 

Council members one-on-one to avoid holding an official 

meeting and to prevent such communications from being 

open to the public. 

16. Councilman Lee Lowman intentionally did not contact 

the one Council member that he knew held an adverse 

position to his own.

17. Councilman Lee Lowman indicated that it was typical 

for Council members to have one-on-one communications 

to conduct the business of the Town of Hildebran.

(Strike-outs in original) (emphasis added).

The trial court’s findings of fact, particularly that Councilman Lowman (1) 

contacted other council members one-on-one specifically “to avoid holding an official 

meeting,” and (2) did not contact Councilman Hildebran as he knew he held an 

adverse position, are clearly based on evidence in the record that the other council 

members were called “to ensure that they had the vote to amend the agenda, which 

would allow them to vote on the school building demolition without any prior notice 
HILDEBRAN HERITAGE & DEV. ASS’N, INC. V. THE TOWN OF HILDEBRAN

BRYANT, J., concurring in part and dissenting in part

8

to the public.” Councilman Lowman admitted that he didn’t contact Councilman 

Hildebran because he knew Hildebran held an adverse position, and if Lowman asked 

Hildebran about voting to amend the agenda, he would alert the public. The only 

reasonable inference to be drawn from these facts is that Councilman Lowman’s 

action of contacting other council members individually was to evade the purpose of 

the Open Meetings Law.

Thus, because the findings by the trial court support a conclusion that 

Councilman Lowman’s actions were purposeful and undertaken in order to evade the 

purpose and spirit of the Open Meetings Law and the council’s obligation to conduct 

meetings in public, I submit the trial court erred in concluding the above-described 

actions did not amount to a violation. Therefore, I respectfully dissent.