An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-177

NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

KIM CASOLA, ANTONIO CASOLA, A 

CASOLA MOTORSPORTS, LLC, d/b/a 

TRI-COUNTY MOTOR SPEEDWAY,

Plaintiffs

v. Caldwell County

No. 12 CVS 839 

CALDWELL COUNTY, NORTH CAROLINA,

Defendant

Appeal by plaintiffs from order entered 19 August 2013 by 

Judge Timothy S. Kincaid in Caldwell County Superior Court. 

Heard in the Court of Appeals 4 June 2014.

W. Wallace Respess, Jr., for plaintiff-appellants.

Davis and Hamrick, L.L.P., by Ann C. Rowe, and Wilson, 

Lackey & Rohr, P.C., by David S. Lackey, for defendantappellee.

CALABRIA, Judge. 

Kim and Antonio Casola (“the Casolas”) and A Casola 

Motorsports, LLC, d/b/a Tri-County Motor Speedway (“the 

Speedway”) (collectively “plaintiffs”) appeal from the trial 
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court’s order granting summary judgment in favor of Caldwell 

County, North Carolina (“the County” or “defendant”). We affirm. 

I. Background

The Casolas own and operate the Speedway, a racetrack which 

is located in an area that is zoned primarily for residential 

and agricultural use pursuant to defendant’s zoning ordinance. 

The Speedway has operated as a grandfathered nonconforming use 

since the adoption of the zoning ordinance in 1990.

During its operation, the Speedway has been the subject of 

multiple complaints from residents in the surrounding community, 

who allege that the noise from the Speedway interferes with the 

enjoyment of their homes. In 2009, defendant conducted a study 

of the noise levels coming from the Speedway and another 

racetrack in the County. In December 2009, the Caldwell County

Board of Commissioners (“the Board”) scheduled a public hearing 

regarding a proposed ordinance (“the ordinance”) designed to 

limit the dates and times racing was allowed at the studied

racetracks. Specifically, the ordinance permitted racing, 

testing, and practice (1) only during the months of MarchOctober and (2) only on Thursdays, Fridays and Saturdays, 

limited to two of those days per week. At the conclusion of the 

public hearing on 7 December 2009, the Board voted unanimously 

to enact the ordinance. The Board amended the ordinance on 21 

December 2009 to exempt race events that had been scheduled 
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prior to the effective date of the ordinance and to allow the 

Board to grant special use permits for the raceways to operate 

at times not otherwise permitted by the ordinance.

Shortly thereafter, plaintiffs filed a complaint 

challenging the ordinance in Caldwell County Superior Court. 

Plaintiffs voluntarily dismissed this complaint without 

prejudice on 14 January 2011. On 18 June 2012, plaintiffs filed 

a new complaint seeking to have the ordinance declared void.

Specifically, plaintiffs’ complaint alleged that the ordinance 

was invalid because it violated plaintiffs’ due process and 

equal protection rights, state regulatory laws, and state zoning 

laws. On 10 July 2013, defendant filed a motion for summary 

judgment. After a hearing on the motion, the trial court 

entered an order granting summary judgment in favor of defendant 

on 19 August 2013. Plaintiffs appeal.

II. Rule Violations

As an initial matter, we are compelled to address the 

numerous violations of the Rules of Appellate Procedure by 

plaintiffs. Plaintiffs’ brief fails to include a statement of 

the issues presented for review, a statement of the procedural 

history, a statement of the grounds for appellate review, and a 

full and complete statement of the facts, all of which are 

required by N.C.R. App. P. 28(b) (2013). Nonetheless, 

plaintiffs’ rule violations are not so egregious as to require 
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dismissal of this appeal. See Dogwood Dev. & Mgmt. Co., LLC v. 

White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 366 

(2008) (Dismissal of an appeal is appropriate “only in the most 

egregious instances of non-jurisdictional default[.]”). 

However, we admonish plaintiffs’ counsel to ensure compliance 

with the Rules of Appellate Procedure in the future.

III. Standard of Review

“Our standard of review of an appeal from summary judgment 

is de novo; such judgment is appropriate only when the record 

shows that ‘there is no genuine issue as to any material fact 

and that any party is entitled to a judgment as a matter of 

law.’” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 

576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 

S.E.2d 382, 385 (2007)). When a motion for summary judgment is 

accompanied by supporting affidavits, “an adverse party may not 

rest upon the mere allegations or denials of his pleading, but 

his response, by affidavits or as otherwise provided in this 

rule, must set forth specific facts showing that there is a 

genuine issue for trial.” N.C. Gen. Stat. § 1A-1, Rule 56(e) 

(2013).

IV. Rational Basis

Plaintiffs argue that the trial court erred by granting 

summary judgment in favor of defendant as to their claim that

the ordinance violated their constitutional rights because there
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is a genuine issue of material fact as to whether any rational 

basis for the ordinance exists. We disagree. 

Pursuant to N.C. Gen. Stat. § 153A-133 (2013), “[a] county 

may by ordinance regulate, restrict, or prohibit the production 

or emission of noises or amplified speech, music, or other 

sounds that tend to annoy, disturb, or frighten its citizens.” 

Counties may also “regulate and license occupations, businesses, 

trades, professions, and forms of amusement or entertainment and 

prohibit those that may be inimical to the public health, 

welfare, safety, order, or convenience.” N.C. Gen. Stat. § 153A134 (2013). 

[W]hen the exercise of the police power is 

challenged on constitutional grounds, the 

validity of the police regulation primarily 

depends on whether under all the surrounding 

circumstances and particular facts of the 

case the regulation is . . . reasonably 

calculated to accomplish a purpose falling 

within the legitimate scope of the police 

power, without burdening unduly the person 

or corporation affected.

Winston-Salem v. R.R., 248 N.C. 637, 642, 105 S.E. 2d 37, 41

(1958).

In the instant case, plaintiffs contend that the ordinance, 

which limits the dates and times in which the racetrack may 

operate, does not have a legitimate purpose and further lacks a

rational basis for differentiating between the times racing is 

allowed and the times when it is not. However, in support of 
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its motion for summary judgment, defendant provided multiple 

affidavits which explained the nature of the citizen complaints 

which provided the impetus for the ordinance as well as 

explaining that the time limitations imposed by the ordinance

were consistent with the historical uses of the Speedway. These 

affidavits sufficiently demonstrated that defendant was acting 

within its police powers when enacting the ordinance and that 

the ordinance was reasonably calculated to deal with the noise 

issues caused by the Speedway while balancing the rights of 

plaintiffs to continue the Speedway’s protected historical uses. 

Plaintiffs presented no evidence which disputed defendant’s 

affidavits, and thus, failed to meet their burden of providing 

specific facts which would demonstrate a genuine issue of 

material fact regarding whether defendant had either the 

authority or a rational basis to enact the ordinance.

Accordingly, the trial court properly granted summary judgment 

in favor of defendant as to this issue. This argument is 

overruled.

V. Failure to Re-file

Plaintiffs contend that the trial court erred in granting 

summary judgment for failure to re-file the action within one 

year. We disagree. 

Pursuant to N.C. Gen. Stat. § 1-54, the statute of 

limitations for “contesting the validity of any zoning or 
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unified development ordinance” is one year. N.C. Gen. Stat. § 1-

54(10) (2013). In the instant case, the fourth claim in 

plaintiffs’ complaint alleged that the ordinance operated as 

unlawful “exclusionary zoning” and “spot zoning.” It is clear 

from defendant’s motion for summary judgment and the transcript 

from the hearing on the motion that this was the only claim that 

related to the trial court’s Rule 41 ruling.1

Plaintiffs’ original complaint was voluntarily dismissed on 

14 January 2011. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 41, 

when an action is voluntarily dismissed without prejudice, “a 

new action based on the same claim may be commenced within one 

year after such dismissal . . . .” N.C. Gen. Stat. § 1A-1, Rule 

41(a)(1) (2013). “[I]t is well-established that the statute of 

limitations is tolled by the filing of a Rule 41(a) voluntary 

dismissal, and the plaintiff is not forbidden from subsequently 

refiling an action outside the statute of limitations period but 

within the period proscribed by Rule 41(a).” Keyzer v. 

Amerlink, Ltd., 164 N.C. App. 761, 765, 596 S.E.2d 878, 881 

(2004). However, plaintiffs did not re-file a new complaint

until 18 June 2012, approximately eighteen months after they 

filed their voluntary dismissal. Therefore, the tolling 

provision of Rule 41 was no longer applicable and plaintiffs’ 

 

1 The trial court’s order did not specifically refer to Rule 41, 

but the rule was referred to when the court orally rendered its 

decision at the conclusion of the summary judgment hearing.
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claim that the ordinance was an invalid zoning ordinance was 

barred by the statute of limitations. Accordingly, the trial 

court properly granted summary judgment in favor of defendant as 

to this claim. This argument is overruled.

VI. Non-Conforming Use

Finally, plaintiffs argue that there is a genuine issue of 

material fact as to whether the ordinance deprived plaintiffs of 

their grandfathered rights in a non-conforming use. However, as 

noted above, defendant submitted multiple affidavits which 

averred that the Speedway typically only operated during the 

days and times which were still permitted by the ordinance. 

Plaintiffs provided no evidence which contradicted these 

affidavits. Thus, plaintiffs failed to demonstrate a genuine 

issue of material fact as to this issue, and the trial court 

properly granted summary judgment in favor of defendant. This 

argument is overruled.

VII. Conclusion

Plaintiffs failed to meet their burden of demonstrating a 

genuine issue of material fact as to whether defendant had a 

rational basis for enacting the ordinance. In addition, 

plaintiffs failed to properly re-file their claim alleging a 

violation of state zoning laws within the applicable statute of 

limitations. Finally, plaintiffs failed to establish a genuine 

issue of material fact as to the alleged deprivation of their 
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rights in a grandfathered nonconforming use of the Speedway. 

Consequently, the trial court properly granted summary judgment 

in favor of defendant. The trial court’s order is affirmed.

Affirmed. 

Judges BRYANT and GEER concur.

Report per Rule 30(e).