An unpublished opinion of the North Carolina Court of Appeals does not constitute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 defendant-
      appellee.


      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
                                        -2-


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    March-

October    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
                                             -3-


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
                                    -4-


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
                                        -5-


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. § 153A-

134 (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
                                                -6-


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
                                        -7-


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.
                                      -8-


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
                               -9-


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).
