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Smith suit dismissed at plaintiff's request

By Lynn Hotaling
A Sylva businessman has dropped the lawsuit he filed in May against the town of Sylva and two adjacent property owners.

Though all parties and attorneys were present in Jackson County Superior Court Monday (July 31) to argue the defendants' motions to dismiss the suit, the complaint was dismissed at the request of plaintiff Wayne Smith.

"We dismissed it because there were some technical problems with the papers we filed," said Smith's attorney, Bill Coward of Cashiers.

The suit will be re-filed, Coward said. "We have up to one year, but we expect to file much sooner," he said.

State statutes allow a lawsuit to be dropped without prejudice at any time before a verdict is rendered, said attorney Tom Jones of Sylva, who represented defendants Larry Parris and James Messer and their corporation, Pameco, against Smith.

Smith's suit, filed almost three months ago, claimed the Sylva Town Board's April order to close Broad Street before it reaches Smith's property line deprived him of access and effectively destroyed his plans to build a trailer park near First Charter (formerly Community) Bank.

In addition to the town, Smith's suit named Sylva business owners Marie Searcy, Larry Parris and James Messer as defendants and charged all with conspiring to close the road.

If the suit is re-filed, Coward said, the corporate defendants will have to be parties because when a street is closed by a municipality, the adjacent landowners become the owners of the former road right-of-way.

Lawyers for all three defendants had filed motions asking that the court dismiss Smith's suit. Eric Ridenour, Sylva's attorney, filed an answer to the Smith suit in which he denied any conspiracy or improper action by the town of Sylva. In that answer, Ridenour alleged that Smith intentionally landlocked himself and brought the suit in an attempt to collect title insurance.

"This case reminds me of 'The Boy Who Cried Wolf' fable," Ridenour said Monday. "Mr. Smith filed a lawsuit alleging all sorts of ridiculous conspiracy theories and wrongs committed against him, and then, when push comes to shove, he voluntarily dismisses the lawsuit rather than let it be heard by the court.

"Sylva is a small town with a small tax base. The mayor and town board have done an incredible job spending what little money the town has for such major projects as the Streetscape and economic development. Mr. Smith forces the townspeople's money to be spent defending his cry of wolf - taxpayers' money that could have been spent for the good of the community rather than for Mr. Smith's entertainment.

"Under the North Carolina Rules of Civil Procedure, Mr. Smith may re-file the suit within one year. If he does re-file, then the town may recover the taxpayer's money that was spent defending this first action. I can only assume that the other defendants who have the misfortune to be Mr. Smith's neighbors may also recover the money that they had to spend for Mr. Smith's cry of wolf," Ridenour said.

The controversy involving Smith and the town of Sylva first surfaced during an October board meeting when Smith asked town officials for a ruling on Broad Street's status. Sylva Mayor Brenda Oliver postponed any decision pending the outcome of litigation between Smith and adjacent property owners Marie and James Searcy.

Though Broad Street historically was town-maintained only from its origin on West Main Street between Performance Motors and P&M Automotive to First Charter Bank, a right of way for the remainder of the street was platted about 1924. On some maps the Broad Street corridor is shown intersecting with Bridge Street, which leaves West Main between Taylor Auto Parts and the Merita store.

The Searcys obtained a court order in September to prevent Smith's accessing his property from Broad Street.

Judge Richlyn Holt dissolved the restraining order in February and granted Smith access via Broad Street. Judge Holt's preliminary ruling stated that a town's acceptance and maintenance of a portion of a street constitutes acceptance of the street as it is fully platted.

The Searcys then dropped their lawsuit and Marie Searcy asked town board members in March to close Broad Street at First Charter Bank. Smith had previously requested that, if Broad Street extended to his property, it be closed at that point.

At the town's public hearing prior to closing Broad Street, those in favor of the move included representatives of all affected businesses and property owners except Smith.

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