The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-947
Filed: 15 December 2020
Forsyth County, No. 19 CVS 725
UNITED DAUGHTERS OF THE CONFEDERACY, NORTH CAROLINA DIVISION,
INC., and JAMES B. GORDON CHAPTER #211 OF THE UNITED DAUGHTERS
OF THE CONFEDERACY, NORTH CAROLINA DIVISION, INC., Plaintiffs,
v.
CITY OF WINSTON-SALEM, by and through ALLEN JOINES, MAYOR OF
WINSTON-SALEM, NORTH CAROLINA, COUNTY OF FORSYTH, by and through
DAVID R. PLYER, CHAIRMAN OF THE BOARD OF COMMISSIONERS, and
WINSTON COURTHOUSE, LLC, Defendants.
Appeal by plaintiff from order entered 8 May 2019 by Judge Eric C. Morgan in
Forsyth County Superior Court. Heard in the Court of Appeals 17 March 2020.
James A. Davis & Associates, by James A. Davis, and James B. Wilson &
Associates, by James Barrett Wilson, Jr., for plaintiff-appellant United
Daughters of the Confederacy, North Carolina Division, Inc.
City Attorney Angela I. Carmon, and Assistant City Attorney Anargiros N.
Kontos, for defendant-appellee City of Winston-Salem.
B. Gordon Watkins III for defendant-appellee Forsyth County.
Allman Spry Davis Leggett & Crumpler, P.A., by Jodi D. Hildebran, for
defendant-appellee Winston Courthouse, LLC.
BRYANT, Judge.
Where the trial court dismissed plaintiff’s complaint pursuant to Rules 12(b)(1)
and 12(b)(6), we hold that it did not err in dismissing the complaint with prejudice on
the basis of Rule 12(b)(6). Where the allegations in plaintiff’s complaint—taken as
UNITED DAUGHTERS OF THE CONFEDERACY, N.C. DIV., INC. V. CITY OF WINSTON-
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Opinion of the Court
admitted—failed to allege an injury in fact, the trial court did not err in granting
defendants’ motions to dismiss the complaint for failure to state a claim. Accordingly,
we affirm the order of the trial court.
Factual and Procedural Background
On 31 January 2019, plaintiff United Daughters of the Confederacy, North
Carolina Division, Inc., filed a verified complaint in Forsyth County Superior Court
seeking a declaratory judgment against defendants City of Winston-Salem, by and
through Allen Joines, its mayor, and Forsyth County, by and through David R. Plyer,
chair of the Board of Commissioners. In its complaint, plaintiff alleged that in 1903,
the James B. Gordon Chapter #211 (of plaintiff organization) sought to place a
confederate monument, a statue, in Courthouse Square in Winston, North Carolina,
and in 1905, the Forsyth County Board of Commissioners granted permission to do
so. The Forsyth County Courthouse was nominated to the National Registry of
Historic Places in 2012, and the nomination was accepted in 2013. In 2014, the
property designated as the Courthouse, with the exception of a plaque inside the
building and a buried time capsule, was conveyed to Winston Courthouse, LLC by
Forsyth County.1 In April of 2017, Mayor Joines agreed to move the statue to the
Salem Cemetery, and on 31 December 2018, the City and Mayor Joines contacted
1 The trial court subsequently found that “public monuments located outside of the building
on the land” were likewise exempted from the transfer.
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plaintiff and informed plaintiff that it had until 31 January 2019 to remove the
statue. Plaintiff sought a declaratory judgment to determine the rights of the parties
with respect to the statue. Contemporaneously, plaintiff also filed a motion for a
temporary restraining order and preliminary injunction, to prevent the relocation of
the statue pending the litigation. The trial court denied the motion for a temporary
restraining order.
On 6 February 2019, plaintiff filed a verified amended complaint joining James
B. Gordon Chapter #211 of the United Daughters of the Confederacy, North Carolina
Division, Inc., as a plaintiff2 and Winston Courthouse, LLC, as a defendant. The
amended complaint combined the two prior pleadings seeking a declaratory judgment
and a preliminary injunction. Plaintiff also filed a separate amended motion for
preliminary injunction.
On 8 March 2019, the City filed a motion to dismiss pursuant to Rules 12(b)(1)
and 12(b)(6) of the North Carolina Rules of Civil Procedure, alleging a lack of subject
matter jurisdiction and failure to state a claim, respectively. Specifically, the City
argued that plaintiff did not claim to own the statue or the real property beneath it,
that plaintiff failed to forecast evidence that the County owned the statue, and that
plaintiff, in fact, had conveyed the statue to a third party. Accordingly, plaintiff
2 On 1 May, 2019, James B. Gordon Chapter #211 of the United Daughters of the Confederacy,
North Carolina Division, Inc., filed a voluntarily dismissal. As such, we will refer only to the initial
plaintiff, United Daughters of the Confederacy, North Carolina Division, Inc., throughout this opinion.
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lacked standing to bring the action regarding the removal of the statue. The City
further noted that plaintiff’s statutory argument regarding statues on public property
did not apply, because the real property on which the statue stood was not public
property; the land was owned by Winston Courthouse, LLC. Finally, because plaintiff
did not assert ownership of the statue, and the City and Winston Courthouse, LLC,
planned to remove the statue for safety reasons, the City argued that plaintiff failed
to show “a violation of [its] legal rights, and [has] therefore failed to state a claim for
relief[.]” The County and Winston Courthouse, LLC, filed similar motions to dismiss
plaintiff’s action.
On 20 March 2019, plaintiff filed a second amended motion for preliminary
injunction alleging that the City had removed the statue. Plaintiff sought the
injunction to force the City to return the statue to Courthouse Square.
On 8 May 2019, the trial court entered an order on defendants’ motions to
dismiss. The court found that plaintiff did not claim ownership of the statue and in
fact, never alleged any rights. The court concluded that plaintiff’s membership
requirement of genealogical relationship to a Confederate soldier was insufficient to
convey standing, that plaintiff did not allege ownership or any “other legally
enforceable right” to the statue sufficient to convey standing, and that plaintiff failed
to establish “that there [wa]s any injury in fact that [wa]s either concrete or
particularized to this specific plaintiff.” The court therefore held that plaintiff lacked
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standing, and granted defendants’ motions to dismiss pursuant to Rule 12(b)(1), for
lack of subject matter jurisdiction. Further, the court granted defendants’ motions to
dismiss pursuant to Rule 12(b)(6), for failure to state a claim on which relief could be
granted. Accordingly, the trial court dismissed plaintiff’s amended complaint with
prejudice.
Plaintiff appeals.
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In two separate arguments, plaintiff contends that the trial court erred by
granting defendants’ motion to dismiss the complaint. We address each in turn.
Standard of Review
“This Court must conduct a de novo review of the pleadings to determine their
legal sufficiency and to determine whether the trial court’s ruling on the motion to
dismiss was correct.” Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580
S.E.2d 1, 4, aff’d per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003).
Dismissal With Prejudice
In its first argument, plaintiff contends the trial court erred by dismissing the
complaint with prejudice. We disagree.
Plaintiff argues that a court “cannot dismiss a complaint with prejudice if it
has held that it lacks jurisdiction over the proceeding.” In support of this contention,
plaintiff cites this Court’s opinion in Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462
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(1988). In Cline, the spouse of an incompetent brought a claim in district court
seeking an award of support from the incompetent’s estate. The incompetent’s
guardian moved to dismiss the complaint pursuant to Rule 12(b)(6) based on the
existence of a premarital agreement, and the trial court granted the motion. The
spouse appealed. On appeal, this Court held that the district court lacked jurisdiction
in this matter altogether, for while a district court has jurisdiction over the question
of alimony, the superior court has jurisdiction over the estates of incompetents.
Where no divorce was alleged or sought, this was an issue of an incompetent’s estate,
and thus, the district court lacked jurisdiction to hear it. Therefore, this Court
vacated the decision of the trial court and remanded the matter with instructions to
dismiss the complaint for lack of subject matter jurisdiction.
Plaintiff contends this case stands for the principle that it is improper to
dismiss a complaint with prejudice when jurisdiction is lacking. This is an incomplete
statement of law, as well as an inaccurate statement of the holding in Cline. Plaintiff
argues, albeit circuitously, that a dismissal with prejudice operates as an
adjudication on the merits, while a dismissal on the basis of subject matter
jurisdiction does not. This much is true. However, that does not preclude the outcome
in this case.
In Street v. Smart Corp., 157 N.C. App. 303, 578 S.E.2d 695 (2003), the
defendant moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6).
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The trial court granted the motion to dismiss dismissing the action with prejudice
based on lack of standing. The plaintiff appealed, and this Court held that the trial
court’s dismissal with prejudice, which operated as an adjudication on the merits,
“implicate[d] a Rule 12(b)(6), rather than a Rule 12(b)(1), dismissal.” Id. at 305, 578
S.E.2d at 698. Key to the holding was that while dismissal pursuant to Rule 12(b)(1)
did not operate as an adjudication on the merits, dismissal pursuant to Rule 12(b)(6)
did, and the latter remedies any error with regard to the former. We ultimately
affirmed the trial court’s decision.
Thus, even assuming arguendo that it was improper to dismiss the complaint
with prejudice on the basis of Rule 12(b)(1), it was not improper to do so on the basis
of Rule 12(b)(6), which operates as an adjudication on the merits. Defendants did
indeed move for dismissal pursuant to both Rules 12(b)(1) and 12(b)(6), and the trial
court granted dismissal on both bases. We therefore hold that the trial court did not
err in dismissing the complaint with prejudice pursuant to Rule 12(b)(6), and that
any error in doing so pursuant to Rule 12(b)(1) was rendered harmless as a result.
Standing
In its second argument, plaintiff contends the trial court erred in dismissing
the complaint based on a lack of standing. We disagree.
Through several arguments, plaintiff contends that dismissal for lack of
standing was inappropriate because plaintiff was entitled to adjudicate the issue of
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ownership rights in the statue. We disagree. Plaintiff’s complaint, on its face,
established no basis for ownership or any other interest in a statue which plaintiff
did not claim to own, and which was located on privately-owned property.
To establish standing, a plaintiff must demonstrate three things: injury in fact,
a concrete and actual invasion of a legally protected interest; the traceability of the
injury to a defendant’s actions; and the probability that the injury can be redressed
by a favorable decision. Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C.
App. 110, 114, 574 S.E.2d 48, 51–52 (2002). The mere filing of a declaratory judgment
is not sufficient, on its own, to grant a plaintiff standing. See Beachcomber Prop.,
L.L.C. v. Station One, Inc., 169 N.C. App. 820, 824, 611 S.E.2d 191, 194 (holding that
a plaintiff who lacked “injury in fact” lacked standing to bring a declaratory judgment
action).
Thus, to pursue a declaratory judgment as to its rights in the statue, plaintiff
had to show, at the very least, that it possessed some rights in the statue—a legally
protected interest invaded by defendants’ conduct. In an attempt to make such a
showing, plaintiff cites this Court’s opinion in Metcalf v. Black Dog Realty, LLC, 200
N.C. App. 619, 684 S.E.2d 709 (2009). In that case, the plaintiffs sought to challenge,
by declaratory judgment, Buncombe County’s sale of a lot on property that had been
dedicated for public use. The defendant, Black Dog Realty, moved to dismiss the
complaint for lack of standing, which the trial court denied. On appeal, we examined
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the issue of standing. We noted that the plaintiffs failed to show standing in their
pleadings. However, we were presented with a quandary: Black Dog Realty had filed
a counterclaim to quiet title, which raised identical legal issues. We resolved this
dilemma by treating the plaintiffs’ complaint and Black Dog Realty’s counterclaim as
a claim to quiet title and held that the trial court did not err in denying the motion to
dismiss for lack of standing.
However, Metcalf is inapposite to the present case. In Metcalf, we specifically
held that the plaintiffs failed to show standing. The only reason their claim was
permitted to proceed was the counterclaim filed by the defendant raised identical
legal issues. In the instant case, as in Metcalf, plaintiff has failed to show standing.
However, here, there is no counterclaim keeping plaintiff’s complaint alive.
Further, aside from acknowledging their role in funding the erection of the
statue over a century ago, plaintiffs alleged no ownership rights to the statue. Every
case and statute cited by plaintiffs stands for the principle that, when a city or county
acts in the manner described in plaintiff’s complaint, the owner of affected property
has rights that are implicated. Plaintiff has failed to demonstrate or allege any legal
interest in the statue.
“In ruling on the motion [to dismiss] the allegations of the complaint must be
viewed as admitted, and on that basis the court must determine as a matter of law
whether the allegations state a claim for which relief may be granted.” Stanback v.
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Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citation omitted),
disapproved on other grounds in Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325
(1987). What matters here, and what was relevant to the trial court’s consideration,
was one question: Whether plaintiff, in its complaint, alleged standing. Viewing the
allegations in plaintiff’s complaint as true, we hold that the complaint fails to allege
an actual ownership right or legal interest in the statue. Notwithstanding plaintiff’s
contentions on appeal as to what defendants did or the implications thereof, nowhere
in plaintiff’s complaint was a legal interest alleged. This is the first element of
standing, and it is key: A plaintiff must allege an “injury in fact.” See Neuse River
Found., Inc., 155 N.C. App. at 114, 574 S.E.2d at 51–52. Plaintiff failed to do so.
The dissent cites to several statutes including our General Statutes, Chapter
100 (“Monuments, Memorials and Parks”), as well as 18 U.S.C. § 1369 (“Destruction
of veterans’ memorials”) and 36 CFR § 60.15 (“Removing properties from the national
register”). We note that with the exception of N.C. Gen. Stat. § 100-2.1 (which was
presented and considered in regard to plaintiff’s standing argument), these
authorities and arguments were not presented before this Court on appeal. Further,
the dissent also cites to biblical passages that were not a part of the record nor
presented to this Court on appeal. “It is not the role of the appellate courts, however,
to create an appeal for an appellant.” Viar v. N.C. Dep’t of Transp., 359 N.C. 400,
402, 610 S.E.2d 360, 361 (2005) (per curiam).
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Accordingly, we hold that the trial court did not err by granting defendants’
Rule 12(b)(6) motions to dismiss plaintiff’s complaint for lack of standing.
AFFIRMED.
Judge ARROWOOD concurs.
Judge TYSON dissents by separate opinion.
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No. COA19-947 – United Daughters of the Confederacy, N.C. Div., Inc. v. City of
Winston-Salem
TYSON, Judge, dissenting.
The majority’s opinion erroneously affirms the trial court’s order granting
Defendants’ Rule 12(b)(1) and (6) motions to dismiss and holds the United Daughters
of the Confederacy, North Carolina Division, Inc (“the Daughters”) do not possess
standing and their complaint fails for lack of subject matter jurisdiction. N.C. Gen.
Stat. § 1A-1, Rule 12(b)(1) (2019). The majority’s opinion then presumes jurisdiction
and standing, yet dismisses the Daughters’ complaint with prejudice for failure to
state a claim upon which relief can be granted. N.C. Gen. Stat. § 1A-1, Rule 12(b)(6)
(2019).
Reviewing the allegations in the light most favorable to Plaintiff and taking
the Daughters’ assertions as true, their complaint properly asserts standing, invokes
the superior court’s jurisdiction, and states a claim upon which relief can be granted
to survive Defendants’ Rule 12(b)(1) and (6) motions to dismiss. I also write
separately to address the pre-emptive and unlawful actions of the City of Winston-
Salem. I vote to reverse the order to dismiss and remand. I respectfully dissent.
I. Background
The Daughters is an active entity in good standing chartered by the North
Carolina Secretary of State as a North Carolina non-profit corporation on 16
September 1992. The Daughters qualified as a 26 U.S.C. § 501(c)(3) (2018) non-profit
entity by the United States Department of the Treasury, Internal Revenue Service.
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The Daughters’ stated purpose in its charter is for “historical, benevolent, memorial,
educational and patriotic programs, plan events and scholarships[.]”
In 1905, the Daughters and members of its James B. Gordon Chapter solicited
and raised contributions, paid for, and erected a granite statue of an unidentified,
common, and representative soldier and veteran as a memorial and war grave to
Forsyth County soldiers killed and not returned home and veterans wounded and
dead in the Civil War, mounted on an inscribed stone base (“Memorial”). The Forsyth
County Board of Commissioners by order dated 20 March 1905 accepted the
Memorial to be prominently placed on the grounds of the then Forsyth County
Courthouse (“Courthouse property”). The Lieutenant Governor of North Carolina,
Francis D. Winston, attended and addressed the dedication ceremony and presented
the Memorial on behalf of the Daughters, followed by a reception with over 600
individuals in attendance.
The Courthouse property ceased to be used as the Forsyth County Courthouse
in 1974. It housed Forsyth County offices for the next thirty years until 2004 when
a new county office building was erected. The former Forsyth County Courthouse,
including the grounds and all improvements thereon, including the Memorial, was
nominated by the county and state to be placed and listed on the National Registry
of Historic Places in 2012.
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The application and nomination for the National Registry of Historic Places
describes the Memorial as a “contributing” factor to the historical significance of the
historic property to be qualified and listed in the National Register and describes the
Memorial as follows:
This monument stands at the northwestern corner of the
block and memorializes the Confederate dead from Forsyth
County. Erected in 1905 by the James B. Gordon Chapter
of the United Daughters of the Confederacy, the monument
faces northwest. The monument is executed in granite and
consists of a sculpture of a man in a Confederate uniform
with a rifle on a stone pedestal. The tall pedestal is
composed of a rusticated stepped base, a smooth block with
the words ‘Our Confederate Dead’ in relief, and a short
shaft with a smooth surface with an incised inscription
with the date and organization that erected the statue.
This is topped with a projecting section with a medallion
on each side. Above this the shaft tapers terminating in a
base that holds the statue of the Confederate soldier. The
upper shaft has a bas relief shield on the front.
A. Reservation of the Memorial to Forsyth County
In 2014, the Courthouse property was conveyed by the Forsyth County
Commission to Winston Courthouse, LLC, with exemption from the conveyance and
the express reservation to Forsyth County of a plaque mounted inside the building, a
buried time capsule, and “public monuments located outside of the building on the
land” from the transfer. Winston Courthouse, LLC asserted in its pleadings: “The
Deed did not convey ownership of certain items of personal property, such as a time
capsule located within the historic building . . . a plaque located on the Building, and
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any public monuments located on and about the property.” Winston Courthouse,
LLC, also alleged it did not know who owned the public monuments and the
Memorial.
B. Order Appealed
After receipt of a thirty-day demand letter from the City of Winston-Salem to
remove the Memorial, the Daughters filed and sought a declaratory judgment to
determine the rights of the parties with respect to the Memorial.
Contemporaneously, the Daughters also filed a motion for a temporary restraining
order and preliminary injunction, to preserve status quo and prevent the alteration,
removal or relocation of the Memorial pending the litigation. The trial court denied
the motion for temporary restraining order to maintain status quo.
On 6 February 2019, the Daughters filed a verified amended complaint joining
Winston Courthouse, LLC, as a defendant. The Daughters also filed a separate
amended motion for preliminary injunction.
The City of Winston-Salem filed a motion to dismiss pursuant to North
Carolina Rules of Civil Procedure 12(b)(1) and 12(b)(6) on 8 March 2019, alleging a
lack of subject matter jurisdiction and asserting the Daughters’ failure to state a
claim. On 20 March 2019, the Daughters filed a second amended motion for
preliminary injunction alleging the City of Winston-Salem had inexplicitly
dismantled and removed the Memorial without agreement or consent. The
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Daughters’ second amended motion sought an injunction to force the City of Winston-
Salem to return the Memorial to Courthouse Square.
On 8 May 2019, the trial court entered an order on Defendants’ motions to
dismiss. The trial court found the Daughters did not claim ownership of the statute
and in fact, never alleged any rights. The trial court concluded that the Daughters
did not allege ownership or any “other legally enforceable right” to the Memorial
sufficient to convey standing, and that the Daughters had failed to establish “that
there [wa]s any injury in fact that [wa]s either concrete or particularized to this
specific plaintiff.”
The trial court erroneously concluded the Daughters lacked standing and
granted Defendants’ motions to dismiss pursuant to Rule 12(b)(1), for lack of subject
matter jurisdiction. The trial court also erroneously granted Defendants’ motions to
dismiss for failure to state a claim upon which relief could be granted pursuant to
Rule 12(b)(6) with prejudice.
II. Standard of Review
Our Supreme Court has held:
For the purpose of a motion to dismiss, the allegations of
the complaint are treated as true. A complaint is sufficient
to withstand a motion to dismiss where no insurmountable
bar to recovery on the claim alleged appears on the face of
the complaint and where allegations contained therein are
sufficient to give a defendant notice of the nature and basis
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of plaintiffs’ claim so as to enable him to answer and
prepare for trial.
Forbis v. Honeycutt, 301 N.C. 699, 701, 273 S.E.2d 240, 241 (1981) (internal citations
omitted).
This Court has also stated: “[a] complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that plaintiff could prove no set of
facts in support of his claim which would entitle him to relief. In analyzing the
sufficiency of the complaint, the complaint must be liberally construed.” Dixon v.
Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987) (internal citations omitted)
(emphasis supplied).
III. Motion to Dismiss
The pleadings assert and the record raises factual disputes over who currently
owns the Memorial. According to the City of Winston-Salem, the Memorial remains
owned by the Daughters and its members. The City of Winston-Salem sent the
Daughters a letter on 31 December 2018 demanding of them, as owners, to remove
the Memorial within thirty (30) days by 31 January 2019.
The current owner of the underlying property, Winston Courthouse, LLC,
disclaims any ownership to the Memorial and notes, as the trial court found, the
Memorial was expressly excluded with reserved easements for access to and
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maintenance in and from its deed from Forsyth County to the property. Forsyth
County alleges it owns the Memorial.
The majority’s opinion affirms the trial court’s erroneous Rule 12(b)(1)
dismissal on subject matter jurisdiction for lack of standing, asserting the Daughters
do not claim current ownership. The Daughters do not have to claim sole ownership
to possess standing in this declaratory judgment action. The City of Winston-Salem
repeatedly asserted the Daughters’ ownership in its demands and in other
communications Defendants sent to Plaintiffs, while the other Defendants assert
varying or unknown ownership. Defendants are bound by their allegations. “[T]he
law does not permit parties to swap horses between courts to get a better mount[.]”
Balawejder v. Balawejder, 216 N.C. App. 301, 307, 721 S.E.2d 679, 683 (2011). It
does not appear “beyond doubt” the Daughters’ complaint being “liberally construed”
asserts “no set of facts” to support their claims. Dixon, 85 N.C. App. at 340, 354 S.E.2d
at 758.
In addition, our General Statutes also mandate prior notice guidelines and
procedures for unclaimed property to ascertain ownership and for the transfer of such
property to the State. See N.C. Gen. Stat. §§ 116B-56 and 116B-59 (2019). Any
unclaimed property, whose owner cannot be ascertained, escheats to the State. N.C.
Gen. Stat. § 116B-2 (2019). If the Memorial is determined to be held or owned by the
State, additional notice and proceedings must occur as described below.
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IV. Standing
The trial court dismissed the Daughters’ declaratory judgment action for lack
of subject matter jurisdiction under Rule 12(b)(1) for lack of standing. In a declaratory
judgment action concerning standing, our Supreme Court has held:
[T]he gist of the question of standing is whether the party
seeking relief has alleged such a personal stake in the
outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of
difficult constitutional questions.
Goldston v. State, 361 N.C. 26, 30, 637 S.E.2d 876, 879 (2006) (citations, alternations,
and internal quotation marks omitted).
Our Supreme Court further held:
[A] declaratory judgment action must involve an actual
controversy between the parties, plaintiffs are not required
to allege or prove that a traditional cause of action exists
against defendant[s] in order to establish an actual
controversy. [A] declaratory judgment should issue (1)
when [it] will serve a useful purpose in clarifying and
settling the legal relations at issue, and (2) when it will
terminate and afford relief from the uncertainty, insecurity
and controversy giving rise to the proceeding.
Id. at 33, 637 S.E.2d at 881 (alterations in original) (internal citations and quotation
marks omitted). The Daughters’ claims clearly assert and “involve an actual
controversy between the parties.” Id.
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As an association of Chapters and members, the Daughters also possess
representational standing for its Chapters and individual members if, “(a) its
members would otherwise have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of individual members in
the lawsuit.” River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 130, 388 S.E.2d 538,
555 (1990) (citation omitted); see Fuller v. Easley, 145 N.C. App. 391, 395-96, 553
S.E.2d 43, 46-47 (2001). (“[P]laintiff may have had standing to bring a taxpayer
action, not as an individual taxpayer, but on behalf of a public agency or political
subdivision, if the proper authorities neglected or refused to act. To establish
standing to bring an action on behalf of public agencies and political divisions, a
taxpayer must allege that he is a taxpayer of [that particular] public agency or
political subdivision, . . . [and either,] (1) there has been a demand on and refusal by
the proper authorities to institute proceedings for the protection of the interests of
the political agency or political subdivision; or (2) a demand on such authorities would
be useless.”) (alterations in original) (internal citations and quotation marks
omitted).
Here, members of the Daughters as citizens of Forsyth County also have
standing as individuals to seek relief and for the Daughters to represent them. It is
undisputed the Memorial was paid for and erected by the Daughters’ members and
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Chapter, and it is directly related to the stated non-profit and charitable goals of the
organization. The declaratory judgment claim asserted and the relief requested does
not require the participation of the individual members or Chapters of the Daughters.
See River Birch Assocs., 326 N.C. at 130, 388 S.E.2d at 555. The trial court’s order
and dismissal for lack of standing and subject matter jurisdiction under Rule 12(b)(1)
is properly reversed and remanded. See id. The majority’s opinion clearly bases its
holding under Rule 12(b)(6), apparently recognizing the trial court’s error under Rule
12(b)(1).
V. Memorial to Veterans
The Courthouse property, which includes the Memorial specifically
commissioned, erected, and dedicated to dead and wounded Forsyth County veterans,
was recommended for protection and preservation by Forsyth County and the North
Carolina Department of Cultural and Natural resources for its historic significance
and was accepted and listed on the National Register of Historic Places by the United
States Park Service of the United States Department of the Interior on 23 April 2013.
National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470 et seq. (2018).
See 54 U.S.C. 3021 (2018); 36 CFR § 60.3(f); 36 CFR § 60.15. The record is
undisputed.
Under Federal law, the term “veteran” is defined to include persons who
“served for ninety days or more in the active military or navel service during the Civil
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War.” See 38 U.S.C. § 1532 (2018). The Congress of the United States also defines
and grants the status and benefits of being an American “veteran” to any person “who
served in the military or naval forces of the Confederate States of America during the
Civil War[.]” 38 U.S.C. § 1501 (2018).
The Congress of the United States also instructed: “That the Secretary of the
Army is authorized and directed to furnish, when requested, appropriate Government
headstones or markers at the expense of the United States for the unmarked graves
of the following[.]” The first category listed is “Soldiers of the Union and Confederate
Armies of the Civil War.” 24 U.S.C. § 279(a) (repealed 1 September 1973).
The Memorial was constructed and dedicated “to honor the men that fought
and lost their lives” who were from Forsyth County. As a veteran’s memorial and a
war grave for those who did not return home and listed on the National Register, the
Memorial is arguably protected from injury or destruction by the “Veterans’
Memorial Preservation and Recognition Act of 2003.” 18 U.S.C. § 1369 (2018)
(“Destruction of veterans’ memorials (a) Whoever . . . willfully injures or destroys,
or attempts to injure or destroy, any structure, plaque, statute, or other monument
on public property commemorating the service of any person or persons in the armed
forces of the United States shall be fined under this title, imprisoned not more than
10 years, or both. . . . (b)(2) the structure, plaque, statue, or other monument described
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in subsection (a) is located on property owned by, or under the jurisdiction of, the
Federal Government.”).
VI. N.C. Gen. Stat. § 100-2.1
N.C. Gen. Stat. § 100-2.1, as amended in 2015, applies to and protects the
Memorial. N.C. Gen. Stat. § 100-2.1 (2019). “[A]ny monument, memorial, or work of
art owned by the State may not be removed, relocated, or altered in any way without
the approval of the North Carolina Historical Commission.” N.C. Gen. Stat. § 100-
2.1(a). The statute protects monuments and memorials from being disturbed,
removed, or relocated except in certain circumstances and are subject to certain
exceptions. Id. The record is devoid of any “approval of the North Carolina Historical
Commission,” prior to the City’s dismantling and removal of the Memorial. Id.
As Plaintiff, the Daughters are seeking a declaratory judgment, restraining
order, and injunction to enforce the statute, consistent with their threshold
ownership of and role in securing and erecting the Memorial and the specific goals
expressed in their charter. While the Daughters nor anyone else asserts the
Memorial has escheated to the State of North Carolina, if the Memorial is determined
to be owned by the State, by no one claiming ownership, or is located on State-owned
property, additional restrictions and requirements must be satisfied prior to any
efforts are commenced to alter or remove the Memorial. N.C. Gen. Stat. § 100-2.1.
VII. N.C. Gen. Stat. § 100-2.1(b)
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UNITED DAUGHTERS OF THE CONFEDERACY, N.C. DIV., INC. V. CITY OF WINSTON-
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N.C. Gen. Stat. § 100-2.1(b) provides the mandatory statutory mechanisms for
the lawful alteration, removal or relocation of monuments and memorials. The City
of Winston-Salem, any government or private entity, or any other person is mandated
to comply with this and other statutes prior to any alteration or removal. N.C. Gen.
Stat. § 100-2.1(b) additionally states: “As used in this section, the term ‘object of
remembrance’ means a monument, memorial, plaque, statue, marker, or display of a
permanent character that commemorates an event, a person, or military service that
is part of North Carolina’s history.” This statute clearly applies to and protects the
Memorial. Nothing in the record shows any compliance by the Defendants therewith.
A. Actions by the City of Winston-Salem
N.C. Gen. Stat. § 160A-193 (2019) grants statutory authority to a municipality
to act when a building or structure constitutes an imminent danger to the public
health or safety, creating an emergency necessitating the structure’s immediate
demolition. See Monroe v. City of New Bern, 158 N.C. App. 275, 580 S.E.2d 372 (2003).
Before taking action, the municipality must comply with federal and state laws and
give required notice, a hearing, and ample opportunity to make the structure safe.
Id. at 278, 580 S.E.2d at 374.
The City of Winston Salem, a political subdivision chartered by the General
Assembly of North Carolina and which is located wholly within Forsyth County,
would act ultra vires to purport to declare a Memorial and war grave dedicated to
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dead and wounded veterans of that county, whether owned by Forsyth County or the
Daughters or the State to be a public nuisance.
The Memorial was erected by county order, dedicated and maintained on
reserved property easements to the county. The City of Winston-Salem has no lawful
basis to declare the Memorial to be a public nuisance or to pre-emptively demand and
then unilaterally remove it from a property listed on the National Register of Historic
Places without prior permission or agreement. The City of Winston-Salem can only
act to seek removal of the Monument after compliance with the applicable federal and
state statutes. 18 U.S.C. § 1369 (2018); 36 CFR § 60.15; N.C. Gen. Stat. § 100-2.1(b).
Such unilateral and pre-emptive action is unlawful under these laws and
statutes and is not allowed within N.C. Gen. Stat. § 160A-193(a) (“A city shall have
authority to summarily remove, abate, or remedy everything in the city limits or
within one mile thereof, that is dangerous or prejudicial to the public health or public
safety.”). The Daughters’ declaratory judgment complaint invokes subject matter
jurisdiction and states standing and claims for relief to survive Defendants’ motions
to dismiss.
B. Compliance with the Statutes
While the laws and statutes limit the authority of the City of Winston Salem,
Forsyth County, or anyone else to alter, remove or relocate the monuments or
Memorial, the North Carolina statute does not totally prohibit removal or relocation.
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After compliance with federal and state requirements, the Memorial may be relocated
to a “site of similar prominence, honor, visibility, availability and access that are
within the boundaries of the jurisdiction from which it was located.” N.C. Gen. Stat.
§ 100-2.1(b).
Since the dedicated location of the Memorial was erected by order of the County
Commission near the front door of one of the County’s most prominent building for
over 115 years, and the only former public building in Forsyth County listed on the
National Register of Historic Places, any substituted location in equal prominence
may be a difficult standard to meet, although the statute requires the memorial to be
of “similar prominence” and not “the same prominence.” In any event, the statutory
restrictions on relocation make removal of the Memorial not an option without prior
“approval of the North Carolina Historical Commission,” or an express agreement
with the owner, which is the subject of the declaratory judgment action. N.C. Gen.
Stat. § 100- 2.1(a)(b).
VIII. No Agreement to Relocate
The City of Winston-Salem inexplicitly and unlawfully sought to declare the
Memorial to dead and wounded veterans from Forsyth County to be a public
nuisance, used taxpayer funds to dismantle and remove the Memorial, and sought to
relocate the Memorial to the Salem Cemetery without the agreement of the owners
and in violation of federal and state law. On 31 December 2018, City of Winston-
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Salem Mayor Joines wrote to the Daughters and purported to demand the Daughters
to remove the Memorial within thirty days, no later than 31 January 2019. The
Memorial had remained in place and undisturbed since 20 March 1905 until April
2019.
There is no allegation or agreement with any purported owner to remove or
relocate the Memorial or any showing of prior compliance with the federal and state
statutes. Temporary removal is permitted by agreement with the owner when
required to preserve the Memorial, which must be re-erected within ninety (90) days
thereafter. N.C. Gen. Stat. § 100-2.1(b). Defendants make no allegations of actions
or threats of action to physically damage the Memorial, so that provision would not
appear to apply. Id.
The statutes provide one exception, presuming the Memorial is owned by the
Daughters or other private owners that may be applicable, which provides that an
object of remembrance owned by a private party that is located on public property
may be removed, if it is subject to a legal agreement governing its removal or
relocation. Defendants do not assert any agreement with the Daughters, Forsyth
County, the State, or any other potential owner to dismantle, remove, or relocate the
Memorial. Id. Defendant Winston Courthouse, LLC specifically disclaims any
ownership of the Memorial.
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Prior to the Memorial being unlawfully dismantled and removed, only two
instances of the Memorial being spray painted had occurred and that desecration was
immediately removed and cleaned. There was no evidence of violence or other direct
substantiated threats to public safety from the 115-year-old Memorial to permit the
City of Winston-Salem to act unilaterally to remove the Memorial.
IX. Conclusion
The superior court clearly possesses jurisdiction and Daughters possess
standing on multiple grounds to assert the declaratory judgment action and claims
to survive dismissal under Rule 12(b)(1). N.C. Gen. Stat. §§ 1-277; 7A-27 (2019); see
Goldston, 361 N.C. at 30, 637 S.E.2d at 879. The Daughters possess the individual
standing of its members and Chapters and representational standing to seek a
declaratory judgment and other relief. River Birch Assocs., 326 N.C. at 130, 388
S.E.2d at 555. The trial court’s order of dismissal “with prejudice” to the contrary is
clearly erroneous.
When the complaint is “liberally construed” it does not appear “beyond doubt”
the Daughters’ complaint asserts “no set of facts” to support their claims and
entitlement to relief. See Dixon, 85 N.C. App. at 340, 354 S.E.2d at 758. The
Daughters’ allegations clearly assert an “injury in fact” from Defendants’ actions. See
Neuse River Found., Inc., 155 N.C. App. at 114, 574 S.E.2d at 51-52. The trial court
granting of either of Defendants’ Rule 12(b)(1) or 12(b)(6) motions with prejudice was
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error. “Thou shalt not remove thy neighbour’s landmark, which they of old time have
set[.]” Deuteronomy 19:14 (King James). “Remove not the ancient landmark, which
thy fathers have set.” Proverbs 22:28 (King James).
The majority’s opinion does not address, explain, distinguish nor refute any of
the rules, precedents, laws, and statutes that are plead at the trial court, cited on
appeal, and as controlling law, are clearly applicable to the facts and record that is
before us. The order of dismissal with prejudice is erroneous and is properly reversed
and remanded. I respectfully dissent.
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