The opinion
NO. COA13-1222
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
DAVID R. COX
Plaintiff,
v. Pamlico County
No. 12 CVS 121
TOWN OF ORIENTAL and BOARD OF
COMMISSIONERS OF THE TOWN OF
ORIENTAL,
Defendants.
Appeal by Plaintiff from Orders entered 10 April 2013 by
Judge Benjamin G. Alford in Pamlico County Superior Court. Heard
in the Court of Appeals 23 April 2014.
McCotter Ashton, P.A., by Rudolph A. Ashton, III and Kirby
H. Smith, III, for Plaintiff.
Davis Hartman Wright, PLLC, by Michael Scott Davis and I.
Clark Wright, Jr., for Defendants.
STEPHENS, Judge.
Procedural History and Factual Background
This case arises from the decision of the Town of Oriental
and its Board of Commissioners (collectively, “Defendants”) to
permanently close Avenue A and a portion of South Avenue, public
rights of way in the Town. On 2 August 2012, Plaintiff David R.
Cox filed an appeal from the Town ordinance vacating Avenue A
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and an action for declaratory judgment in Pamlico County
Superior Court.1 In his appeal and action, Plaintiff alleged the
following relevant facts:
The Town sits on the Neuse River. On 13 January 2012, the
Board met to consider “the possibilities of sale or exchange of
property in the vicinity of the [W]est end terminus of South
Avenue and Avenue A.” South Avenue and Avenue A are situated on
a peninsula that borders the Neuse River on the South and a
tributary called Raccoon Creek on the West. Raccoon Creek is the
location of the Town’s harbor.
Chris Fulcher wrote to the Town Manager on 23 January 2012
and proposed to exchange a portion of his property on the
Raccoon Creek side of the peninsula (“the Raccoon Creek
property”) for the Town’s interest in Avenue A and the South
Avenue terminus. Fulcher owns all property on either side of
Avenue A and the South Avenue terminus. The Board voted to
accept the proposal on 10 February 2012 and executed a contract
on 23 May 2012. The contract indicated that the transfer would
1
According to Plaintiff’s 2 August 2012 appeal and action, the
ordinance operated to vacate only Avenue A, not the relevant
portion of South Avenue. Plaintiff alleges that he was required
to file this action before the Town completed the closing
process, however, because of certain procedural restrictions.
Thus, this appeal is effective only as it relates to the Town’s
closure of Avenue A, not the relevant portion of South Avenue.
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not occur if the Board determined that it was not in the Town’s
best interests. On 3 July 2012, the Board voted to close Avenue
A. The Board declined to vacate the South Avenue terminus at
that time.
Plaintiff is a “taxpaying resident[] of the Town” and owns
property approximately three blocks North of Avenue A and the
South Avenue terminus. Plaintiff’s property does not touch
Avenue A, South Avenue, or the Raccoon Creek property. On 2
August 2012, Plaintiff appealed the Board’s decision to close
Avenue A and sought a declaratory judgment regarding the Town’s
authority to close either Avenue A or the South Avenue terminus.
Plaintiff filed an amendment to that action on 4 September 2012,
seeking to add the Board as a party to the action and seeking
“injunctive and/or declaratory relief” for a number of alleged
open meetings and public records violations. Defendants
responded with an answer and affirmative defenses on 2 October
2012. Four months later, on 11 February 2013, Defendants filed
motions to dismiss Plaintiff’s “appeal, action for declaratory
judgment, and amendment,” or, in the alternative, for judgment
on the pleadings.
A hearing on the motions was held on 4 March 2013. During
the hearing, Defendants argued that Plaintiff lacked standing to
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bring his suit. Afterward, on 10 April 2013, the trial court
entered orders dismissing Plaintiff’s appeal of the Board’s
decision to close Avenue A and granting Defendants’ motions to
dismiss the declaratory action and for judgment on the
pleadings.2 Plaintiff appeals to this Court from those orders.
Discussion
On appeal, Plaintiff argues that he (1) stated grounds to
support a declaratory judgment in his action, (2) had a
statutory right to appeal the Town’s decision to vacate Avenue
A, and (3) had a right to have his open meetings and public
records claims heard. In response, Defendants argue that the
trial court properly dismissed Plaintiff’s action because
Plaintiff lacked standing to file suit and failed to state a
claim upon which relief could be granted. We affirm the trial
court’s orders.
I. Plaintiff’s Reply Brief
As a preliminary matter, we address the propriety of
Plaintiff’s reply brief, filed 20 March 2014. On 3 April 2014,
2
The Town closed the South Avenue terminus on 8 July 2013. As a
result, Plaintiff filed a second lawsuit against the Town and
the Board, appealing the closure of the South Avenue terminus.
That suit has not been appealed to this Court. Rather, the trial
court stayed the proceedings on that action until this appeal
could be resolved.
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Defendants moved this Court for leave to file a surreply brief
or, in the alternative, for oral argument, contending that
Plaintiff’s reply brief was improper. A proposed surreply brief
was attached. Plaintiff filed a response on 8 April 2014,
objecting to the motion. On 16 April 2014, we granted
Defendants’ motion for leave to file a surreply brief, accepting
the proposed surreply brief for that purpose, and denied the
motion for oral argument. No additional documents have been
filed with this Court.
Plaintiff asserts that his reply brief is submitted
pursuant to Rule 28(h) and “limited to a concise rebuttal of the
arguments . . . contained in [Defendants’ b]rief.” In his reply
brief, Plaintiff seeks to rebut Defendants’ contentions that he
(1) lacked standing to file suit and (2) failed to state a claim
upon which relief could be granted. Given the contents of
Plaintiff’s principal brief, this discussion violates Rule 28(h)
of the North Carolina Rules of Appellate Procedure.
Rule 28(h) states, in pertinent part, that:
. . . Any reply brief which an appellant
elects to file shall be limited to a concise
rebuttal of arguments set out in the
appellee’s brief and shall not reiterate
arguments set forth in the appellant’s
principal brief. . . .
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N.C.R. App. P. 28(h) (emphasis added). In his principal brief,
Plaintiff argues that he stated a claim for which relief could
be granted under Rule 12(b)(6). He also argues that he had
standing to appeal the Town’s decision as a “person aggrieved”
under N.C. Gen. Stat. § 160A-299 and as a successor in interest
to “these public rights of way.” Plaintiff’s standing argument
is less detailed than his 12(b)(6) argument, but clearly
supported by authority and reason nonetheless.
As we have previously noted, “[a] reply brief does not
serve as a way to correct deficiencies in the principal brief.”
State v. Greene, __ N.C. App. __, 753 S.E.2d 397 (2013)
(unpublished opinion), available at 2013 WL 5947337 (striking
the defendant’s reply brief under amended Rule 28(h) because he
“merely expand[ed] upon the alleged error raised in his
principal brief”).3 Plaintiff addressed Rule 12(b)(6) and the
standing issue in his principal brief. In addition, standing was
raised numerous times by Defendants’ counsel during the 4 March
2013 hearing on Defendants’ motions to dismiss. If Plaintiff
wished to address these issues in greater detail, he should have
3
Greene is an unpublished opinion and, therefore, lacks
precedential value. N.C.R. App. P. 30(e)(1). Nonetheless, its
discussion is well-reasoned and one of the only opinions to
address Rule 28(h) as amended (effective 15 April 2013). We find
it persuasive.
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done so in his principal brief. Accordingly, we decline to
consider Plaintiff’s reply brief and, thus, have no reason to
consider Defendants’ surreply brief.
II. Standing
Defendants contend that the trial court properly dismissed
Plaintiff’s appeal and action for declaratory judgment because
Plaintiff lacked standing to bring those actions. Because
standing is jurisdictional, we address Defendants’ argument as a
threshold matter. See, e.g., In re Miller, 162 N.C. App. 355,
357, 590 S.E.2d 864, 865 (2004) (“Standing is jurisdictional in
nature and consequently, standing is a threshold issue that must
be addressed, and found to exist, before the merits of the case
are judicially resolved.”) (citations, internal quotation marks,
and brackets omitted). After a thorough review of the record, we
conclude that the trial court properly dismissed Plaintiff’s
actions for lack of standing.
Section 160A-299 provides in pertinent part that:
(b) Any person aggrieved by the closing of
any street or alley . . . may appeal the
. . . order to the General Court of Justice
within 30 days after its adoption. . . .
N.C. Gen. Stat. § 160A-299(b) (2013). The term “person
aggrieved” as it applies to section 160A-299 is not defined in
the statute or by our courts. See id. Nonetheless, this Court
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has defined an “aggrieved party” under section 160A and in the
context of a zoning ordinance as “one who can either show an
interest in the property affected, or if the party is a nearby
property owner, some special damage, distinct from the rest of
the community, amounting to a reduction in the value of his
property.” In re Granting of Variance by Town of Franklin, 131
N.C. App. 846, 849, 508 S.E.2d 841, 843 (1998) (citation
omitted) (noting that the petitioner, an adjoining property
owner, “clearly established” that she was an aggrieved party
when the town granted a variance from the setback requirements
to a group called “Carriage Park Villas”). We believe the same
definition is applicable here. See generally In re Hayes, 199
N.C. App. 69, 78–79, 681 S.E.2d 395, 401 (2009) (“The primary
rule of [statutory] construction is to ascertain the intent of
the legislature and to carry out such intention to the fullest
extent. To effectuate that intent, statutes dealing with the
same subject matter must be construed in pari materia and
harmonized, if possible, to give effect to each.”) (citations,
internal quotation marks, elipses, and brackets omitted), disc.
review denied, 363 N.C. 803, 690 S.E.2d 694 (2010).
In his appeal from the Town’s decision and action for a
declaratory judgment, Plaintiff alleged that he “is a member of
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the public[] and a taxpaying resident[] of the Town . . . .” He
also stated that he owns property in “Block No. 13,” which is
approximately three blocks away from Avenue A, and asserted that
he “is aggrieved” by the Town’s decision. Lastly, Plaintiff
alleged that he is a “successor in interest to the dominant
tract owner and offeror of dedication to public uses for use as
rights of way all such land as is depicted as rights-of-way on
the 1900 Town Map, including any subsequent modifications of
such rights of ways[.]” On appeal to this Court, Plaintiff
argues that he is an aggrieved person due to his status as a
“citizen and resident of the Town” and “because he is a
successor in interest to these public rights of way, which were
designed and dedicated to provide access to the citizens of [the
Town] to the public trust waters of the Neuse River, when the
Town . . . was laid out [in the year 1900].”4 We are unpersuaded.
4
Plaintiff asserts that these allegations “must be accepted by
this [C]ourt as being true” under the standard of review applied
on appeal from the grant of a motion to dismiss under Rule
12(b)(6). This is incorrect. As Defendants note in their brief,
that standard is only applicable to allegations of fact, not
law. Lloyd v. Babb, 296 N.C. 416, 427, 251 S.E.2d 843, 851
(1979) (“For the purpose of the motion [to dismiss under Rule
12(b)(6)], the well-pleaded material allegations of the
complaint are taken as admitted; but conclusions of law or
unwarranted deductions of fact are not admitted.”).
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Plaintiff has provided no factual basis to support the
argument that he is an aggrieved person in this case. His
property is not adjacent to Avenue A or South Avenue and was not
adjacent to those roads when the Town was designed in 1900. He
has not alleged any personal injury and provides no reason to
believe that his turn-of-the-last-century predecessor in
interest had some special connection to Avenue A or South Avenue
distinct from the rest of the community. Rather, he couches his
arguments in terms of broad, public rights flowing from the
Town’s inception that have no bearing on our analysis here.
Indeed, Plaintiff’s entire argument is rooted in his status as a
member of the Town’s taxpaying populace. Such status is patently
insufficient to support an appeal from, or action for
declaratory judgment regarding, a town’s order closing a street
or alley under section 160A-299. See, e.g., Shaw v. Liggett &
Myers Tobacco Co., 226 N.C. 477, 477–78, 38 S.E.2d 313, 313
(1946) (stating, before section 160A-299 was enacted, that
“[t]he action of a city or town in authorizing the closing of a
street[] cannot be successfully challenged in a civil suit
instituted by a private citizen whose only interest therein is
that of a general taxpayer of the city or town”). Accordingly,
we hold that Plaintiff lacked standing to contest the Town’s
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decision and affirm the trial court’s orders dismissing his
appeal, action, and amended action.
AFFIRMED.
Judges GEER and ERVIN concur.