Forbes Homes, Inc. v. Trimpi, 313 N.C. 168 (1985)

Feb. 27, 1985 · Supreme Court of North Carolina · No. 627A84

313 N.C. 168

FORBES HOMES, INC., A North Carolina Corporation v. JOHN G. TRIMPI and TRIMPI, THOMPSON & NASH

No. 627A84

(Filed 27 February 1985)

Appeal and Error § 64— Supreme Court justices equally divided — Court of Appeals affirmed without precedential value

Where one member of the Supreme Court did not participate in the consideration or decision of a case and the remaining six justices are equally divided, the decision of the Court of Appeals in the case is affirmed without precedential value.

Appeal of right by the defendants under N.C.G.S. 7A-30(2) from the decision of a divided panel of the Court of Appeals, 70 N.C. App. 614, 320 S.E. 2d 328 (1984), reversing the judgment entered by Judge Grafton G. Beaman in District Court, PASQUOTANK County on August 3, 1983. Heard in the Supreme Court on February 6, 1985.

Frank B. Aycock, Jr., for plaintiff appellee.

Trimpi, Thompson & Nash, by Thomas P. Nash, IV, for defendant appellants.

PER CURIAM.

The trial court entered judgment on August 3, 1983, granting the defendants’ motion to dismiss under N.C.G.S. 1A-1, Rule 12(b)(6) for failure to state a claim upon which relief could be granted. A divided panel of the Court of Appeals reversed, and the defendants appealed to this Court as a matter of right.

Chief Justice Branch took no part in the consideration or decision of this case. The remaining members of this Court being equally divided, with three members voting to affirm the Court of Appeals and three members to reverse, the decision of the Court of Appeals is left undisturbed and stands without precedential value. See State v. Johnson, 286 N.C. 331, 210 S.E. 2d 260 (1974).

Affirmed.