United Daughters of the Confederacy, N.C. Div. v. City of Winston-Salem

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-143

No. 21A21

Filed 16 December 2022

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.

v.

CITY OF WINSTON-SALEM, by and through ALLEN JOINES, MAYOR OF

WINSTON-SALEM, NORTH CAROLINA, FORSYTH COUNTY; COUNTY OF

FORSYTH, NORTH CAROLINA, by and through DAVID R. PLAYER,

CHAIRMAN OF THE BOARD OF COMMISSIONERS; and WINSTON

COURTHOUSE, LLC

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 275 N.C. App. 402 (2020), affirming an order entered on 8 May

2019 by Judge Eric C. Morgan in Superior Court, Forsyth County, granting

defendants’ motions to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the

North Carolina Rules of Civil Procedure. Heard in the Supreme Court on 29 August

2022.

James A. Davis for plaintiff-appellants.

Anargiros N. Kontos, Deputy City Attorney, and Angela I. Carmon, City

Attorney, for defendant-appellee City of Winston-Salem.

B. Gordon Watkins III, County Attorney, for defendant-appellee Forsyth

County.

Allman Spry Davis Leggett & Crumpler, P.A., by Jodi D. Hildebran; and

Nelson Mullins Riley & Scarborough LLP, by Lorin J. Lapidu,s for defendant-

appellee Winston Courthouse, LLC.

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Mark Dorosin and Elizabeth Haddix for Chatham for All, North Carolina

Commission on Racial & Ethnic Disparities in the Criminal Justice System,

Dr. Joyce Blackwell, Dr. Phillip A. Clay, Algin Holloway, Patrice High, Edith

A. Hubbard, Walter Jackson, Bradley Johnson, Philip McAlpin, Angelia Euba

McKoy, Henry Clay McKoy, Lisa V. Moore, Moses G. Parker, Melvin L. Watt,

Melvin L. Williams, Camille Z. Roddy, and Jimmy Barnes, amici curiae.

Matthew R. Joyner and H. Edward Phillips for Sons of Confederate Veterans,

amicus curiae.

ERVIN, Justice.

¶1 In this case, plaintiff United Daughters of the Confederacy, North Carolina

Division, Inc., challenges a decision made by defendant City of Winston Salem to

remove a Confederate monument from the grounds of the former Forsyth County

Courthouse.1 Although the courthouse and surrounding real property was originally

owned by defendant Forsyth County, the County had sold the property to defendant

Winston Courthouse, LLC, a private entity that had converted the courthouse

building into private residential apartments, prior to the monument’s removal. The

trial court granted defendants’ motions to dismiss for lack of subject matter

jurisdiction pursuant to N.C.G.S. § 1A-1, Rule 12(b)(1), and failure to state a claim

upon which relief could be granted pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6), and

1 On 1 May 2019, following the trial court’s hearing concerning defendants’ dismissal

motions, plaintiff James B. Gordon Chapter # 211 of the United Daughters of the Confederacy

filed a notice of voluntary dismissal without prejudice. In light of that fact, the term

“plaintiff” as used throughout the remainder of this opinion should be understood as referring

to the United Daughters of the Confederacy, North Carolina Division, Inc.

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the Court of Appeals affirmed the dismissal order in a non-unanimous decision. The

issue before this Court on appeal is whether the facts alleged in plaintiff’s amended

complaint were sufficient to establish that plaintiff had standing to challenge the

City’s action. After careful consideration of the record in light of the applicable law,

we hold that, even though plaintiff lacks standing to proceed in this case, the trial

court erred in dismissing the amended complaint with prejudice. As a result, we

affirm the decision of the Court of Appeals, in part; reverse that decision, in part; and

remand this case to Superior Court, Forsyth County, for further proceedings not

inconsistent with this opinion.

I. Factual Background

A. Substantive Facts

¶2 Plaintiff is a nonprofit corporation organized under the laws of the State of

North Carolina, having first registered with the Secretary of State in 1992. According

to the allegations contained in plaintiff’s amended complaint, in 1903 the James B.

Gordon Chapter #211 of the United Daughters of the Confederacy “began a movement

to place a Confederate monument in Court House Square in Winston, North

Carolina.” In its complaint, plaintiff alleges that the local chapter had approved a

proposed design for the monument, initiated plans “to obtain a monument at a cost

of no more than $3,000.00,” and launched a fundraising campaign to raise money for

the monument’s construction.

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¶3 Plaintiff further alleges that, “on or about March 1, 1905, the Forsyth County

Board of County Commissioners issued an order granting to the Plaintiff, formerly

known as the Daughters of the Confederacy, permission to erect a memorial to the

fallen soldiers of the Confederacy . . . upon property of the County of Forsyth.”2 In

addition, the complaint alleges that, “on or about October 4, 1905, a ceremony

sanctioned by the Board of County Commissioners was conducted during which the

Confederate Monument was dedicated.” Finally, the amended complaint alleges that,

sometime around March 2012, while acting “on behalf of the County of Forsyth, North

Carolina,” Ashley Neville and John Salmon of Ashley Neville, LLC, nominated the

old Forsyth County Courthouse for placement on the National Register of Historic

Places, with that nomination having been accepted “[o]n or about April 23, 2013[.]”

Plaintiff never makes any claim to own the monument or to have any sort of

contractual or property interest in it.

¶4 On 18 March 2014, the County executed a general warranty deed conveying

the old Forsyth County Courthouse and the surrounding real property to Winston

Courthouse, a private real estate developer, by means of a deed that expressly

excluded from the sale “a plaque mounted inside the building, time capsule currently

buried inside the building, and public monuments located outside of the building on

2 The complaint does not clearly indicate whether the reference to “plaintiff” in this

part of the amended complaint refers to the statewide organization or the local chapter.

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the land” and provided that Winston Courthouse “agrees to execute necessary

easements (in form and content that are reasonably acceptable to both parties) to

allow [the County] continued access to maintain and/or remove these items from the

land at the expense of [the County].” Subsequently, Winston Courthouse converted

the old courthouse building into private residential apartments, with the building

having been exclusively used for residential purposes since April 2015. Plaintiff has

not alleged or shown that any of the easements contemplated by the deed were ever

executed or recorded.

¶5 On 18 August 2017, shortly after an outbreak of violence in Charlottesville,

Virginia, related to the proposed removal of a statue of Robert E. Lee, the monument

was vandalized, with the word “Shame” having been spray painted upon it. According

to Assistant City Manager Damon Dequenne, local law enforcement officers

subsequently received complaints from a resident of the Winston Courthouse

apartments who was “upset about armed guards patrolling the [monument]” after

this incident. On 20 August 2017, local law enforcement officers identified “eight (8)

concerned citizens standing guard near the [monument].”

¶6 In September 2017, Winston-Salem Mayor Allen Joines contacted Salem

Cemetery and proposed that the monument be relocated to the cemetery, a

proposition that the Salem Cemetery Board considered and approved on 24 October

2017. On 25 December 2018, the monument was vandalized a second time, with the

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words “Cowards & Traitors” having been spray-painted on it. According to Mr.

Dequenne, this incident “raised concerns that someone might try to topple the

[monument] in a manner similar to that in Chapel Hill and other cities” and that “any

efforts to topple the [monument] might result in injury to persons on the sidewalk as

well as private property.”

¶7 On 31 December 2018, City Attorney Angela Carmon sent a letter to plaintiff’s

president and registered agent and to Winston Courthouse’s management regarding

the recent acts of vandalism at the monument.3 According to Ms. Carmon, the events

in question had “invoke[d] significant concern about the safety of the [monument] and

the potential for confrontation, breaches of the peace[,] and other nuisance type

conduct similar to that endured by other cities,” with the City not being “in a position

to provide constant security checks necessary for the protection of the [monument]

and to mitigate the recuring acts of vandalism.” In addition, Ms. Carmon stated that

the monument “does not appear” to be “publicly owned” and that “[c]laims of

ownership of the [monument] have come from the United Daughters of the

Confederacy.” In light of existing “concerns for overall public safety and protection of

the [monument],” Ms. Carmon “direct[ed] [plaintiff] to remove and relocate by

January 31st the [monument] from its present location to a more secure location

where the same can be protected from vandals and others looking to create a

3 Ms. Carmon’s letter was also addressed to a representative of the local chapter.

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Charlottesville type incident in Winston-Salem,” noting that a “[f]ailure to comply

with this direction may result in the [C]ity seeking a court order for the removal and

relocation of the [monument] to preserve the same and to address public safety

concerns[.]” On 8 January 2019, counsel for Winston Courthouse sent a letter to

plaintiff’s representatives stating that “the recent controversy, press reports, and

references to potential violence have raised serious concerns for some of [Winston

Courthouse’s] residents” and that, “in order to protect the residents and the

[p]roperty,” Winston Courthouse “cannot allow the [monument] to remain on the

[p]roperty.”

¶8 At the public comment portion of the 7 January 2019 Winston-Salem City

Council meeting, several City residents spoke in favor of removing or relocating the

monument. On 13 January 2019, protests occurred near the monument during which

people expressed both support for and opposition to the monument’s continued

presence in its current location. According to Assistant City Manager Dequenne, the

Winston-Salem Police Department “planned and executed a riot and emergency type

operation using ninety-three (93) officers who expended in excess of four-hundred and

sixty-five (465) man hours . . . in an effort to protect the [monument] and the public.”

In addition, Mr. Dequenne noted that the police department’s bike patrol had

continued to actively monitor the monument following the initial act of vandalism

that occurred in 2017. Additional City residents voiced strong support for the

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removal of the monument during the public comment portion of the 22 January 2019

City Council meeting, with some speakers having suggested that the monument

should be destroyed rather than relocated.

¶9 On 25 January 2019, counsel for plaintiff hand-delivered a letter to defendants

in which it requested a 60-day extension of the deadline for the removal of

monument.4 On 30 January 2019, Mr. Dequenne issued a notice declaring that the

monument was a public nuisance in accordance with N.C.G.S. § 160A-93 and Winston

Salem City Code § 62-3(b) on the grounds that “the continued presence of the

[monument] at its current location is detrimental to the safety and longevity of the

[monument] and prejudicial to public safety.” In support of this determination, Mr.

Dequenne pointed to “all that has occurred with Confederate Statues over the past

sixteen months,” including (1) “the toppling of the [Silent Sam] statue in August 2018

in Chapel Hill”; (2) “the December 2018 vandalism [of the monument] in Winston-

Salem”; (3) “the expressions of concern regarding citizen safety both in 2017 and

2018”; (4) “the protest events here in Winston-Salem”; (5) “comments made at the

Winston-Salem City Council’s public comment periods”; (6) “calls for destruction of

the [monument]”; and (7) “the potential for toppling the same,” all of which caused

4 Although the 25 January 2019 letter is not included in the record, other portions of

the record suggest that the letter advanced many of the same legal arguments regarding the

monument upon which plaintiff has relied before this Court.

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him to conclude that “the potential for harm to the [monument] and citizens was

legitimate and the potential for harm looming.”

¶ 10 On the same day, City Attorney Carmon denied plaintiff’s request for

additional time to remove the monument on the grounds that “the totality of the

circumstances suggests that [plaintiff’s] request is made in an effort to cause an

unnecessary delay in action by the City,” with plaintiff having been “made aware of

the City’s public-safety related concerns regarding the [monument] more than sixteen

(16) months ago.” As a result, despite the existence of uncertainly about the

ownership of the monument, the City indicated that it would, in accordance with the

earlier public nuisance declaration, summarily remove the monument from the old

courthouse property without seeking a court order. Winston Courthouse agreed to

cooperate with the City’s efforts to remove the monument.

¶ 11 On 12 March 2019, the City had the monument removed from the old

courthouse property and placed in storage, where it would remain until it could be

moved to the Salem Cemetery. At that time, the City informed plaintiff that it was

“more than willing to make the [monument] available to [plaintiff if] it wish[ed] to

retrieve the [monument] from storage” and that it would pay for the monument’s

relocation, at no cost to plaintiff, “upon property [where] [plaintiff] has clear written

permission to place the [monument], provided the location is not prejudicial to public

safety.”

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B. Procedural History

¶ 12 On 31 January 2019, plaintiff filed a complaint against the City and the

County in which it sought the issuance of a temporary restraining order and

preliminary injunction enjoining defendants “from taking affirmative action to

remove or relocate the [monument] prior to a full adjudication of the respective rights

and obligations of the Parties[.]” On 6 February 2019, plaintiff filed an amended

complaint in which it added the local chapter as a party plaintiff and Winston

Courthouse as a party defendant and sought the entry of a declaratory judgment to

determine (1) “the Parties’ respective rights, duties, privileges, obligations, liabilities,

[and] immunities with regard to the [monument]” and (2) “[w]hether the City of

Winston-Salem [has] misapplied [N.C.G.S. §] 160A-193 and City Ordinance 62-3(b)

in declaring [that] the [monument] constitutes [a] Public Nuisance,” as well as the

issuance of a preliminary injunction precluding the relocation of the monument

pending resolution of its request for a declaratory judgment. After a hearing held on

31 January 2019, Judge Stanley L. Allen entered an order on 25 February 2019 in

which he denied plaintiff’s request the for the entry of a temporary restraining order.5

¶ 13 On 8 March 2019, defendants filed separate motions to dismiss the amended

complaint for lack of subject matter jurisdiction pursuant to N.C.G.S. § 1A1, Rule

5Although Winston Courthouse was not named as a party defendant in the original

complaint, the order notes that its attorney appeared at the hearing and argued that the

motion should be denied.

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12(b)(1), and failure to state a claim upon which relief can be granted pursuant to

N.C.G.S. § 1A-1, Rule 12(b)(6), in which they argued, among other things, that

plaintiff lacked standing to challenge the City’s decision to remove the monument.

On 20 March 2019, plaintiff filed a second amended motion for the issuance of a

preliminary injunction in which it alleged that the City had acted unlawfully and in

violation of plaintiff’s due process rights by removing the monument prior to a

determination concerning the merits of defendants’ dismissal motion and sought the

entry of an order requiring the City to return the monument to the courthouse

property. In an affidavit filed in response to plaintiff’s motion, Winston Courthouse’s

manager asserted that Winston Courthouse would be “irreparably harmed” if the

monument were to be returned to the old courthouse property on the grounds that

the restoration of the monument would result in an unlawful entry upon Winston

Courthouse’s private property, force Winston Courthouse to incur additional security

and legal expenses, and endanger the safety of its residents.

¶ 14 After a hearing held on 29 April 2019, the trial court entered an order on 8

May 2019 granting defendants’ dismissal motions. In support of this determination,

the trial court noted that plaintiff “has never alleged that it owns the [monument] or

that there was ever any contract, lease, or other agreement between [plaintiff] and

another entity requiring that the [monument] stay in its location on the land of

[Winston Courthouse].” The trial court rejected plaintiff’s contention that it had

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standing to maintain the present action because “a specific requirement for

membership in [p]laintiff organizations is establishing that one is a lineal descendant

of [a Confederate soldier].” In light of the fact that plaintiff “has not alleged that it

owns the [monument], has not alleged that it has any contractual or other legally

enforceable right in the [monument], and has not demonstrated a legally protected

interest that would be invaded by Defendants’ actions,” the trial court concluded that

plaintiff had failed to establish standing. The trial court further concluded that

plaintiff “has not established that there is any injury in fact that is either concrete or

particularized to this specific plaintiff.” As a result, for all of these reasons, the trial

court concluded that it lacked subject matter jurisdiction over this case and that

plaintiff had failed to state a claim upon which relief could be granted and dismissed

plaintiff’s amended complaint with prejudice. Plaintiff noted an appeal to the Court

of Appeals from the trial court’s order.

C. Court of Appeals Decision

¶ 15 In seeking relief from the trial court’s order before the Court of Appeals,

plaintiff argued that the trial court had erred by dismissing its complaint for lack of

standing given that it “has an abiding and cognizable legal interest in the

[monument] because [plaintiff] is a legacy organization which raised the money

necessary to design, build, and place the monument on [the old courthouse property]”

and that it “was clearly and specifically threatened with adverse consequences if it

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failed or refused to remove the [m]onument.” In addition, plaintiff argued that,

because the trial court had dismissed the amended complaint for lack of subject

matter jurisdiction, it had erred by dismissing the amended complaint with, rather

than without, prejudice. In plaintiff’s view, “[a] court cannot dismiss a complaint

with prejudice if it has held that it lacks jurisdiction over the proceeding,” citing Cline

v. Teich for Cline, 92 N.C. App. 257, 264 (1988) (vacating an order dismissing the

plaintiff’s complaint for failure to state a claim upon which relief could be granted

because “the district court lacked subject matter jurisdiction over the present case”

and, for that reason, “had no authority to consider whether the [c]omplaint failed to

state a claim.”).

¶ 16 A divided panel of the Court of Appeals affirmed the trial court’s order, with

the majority agreeing with the trial court that plaintiff had failed to establish the

standing needed to assert the claims alleged in the amended complaint and

concluding that dismissal of the amended complaint with prejudice was proper.

United Daughters of the Confederacy v. City of Winston-Salem, 275 N.C. App. 402

(2020). In upholding the trial court’s decision to dismiss plaintiff’s amended

complaint with prejudice, the Court of Appeals concluded that, “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.” Id. at 406. In view of the fact that the

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trial court dismissed plaintiff’s amended complaint based upon both Rule 12(b)(1) and

Rule 12(b)(6), the Court of Appeals concluded 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.” Id.

¶ 17 The Court of Appeals began its discussion of the standing issue by explaining

that, in order to show 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.” Id. at 407 (citing Neuse River Found., Inc. v.

Smithfield Foods, Inc., 155 N.C. App. 110, 114 (2002)). For that reason, the Court of

Appeals held that “[t]he mere filing of a declaratory judgment” action “is not

sufficient, on its own, to grant a plaintiff standing.” Id. (citing Beachcomber Prop.,

LLC v. Station One, Inc., 169 N.C. App. 820, 824 (2005)). Instead, the Court of

Appeals held that, in order “to pursue a declaratory judgment as to its rights in the

[monument], plaintiff had to show, at the very least, that it possessed some rights in

the [monument]—a legally protected interest invaded by defendants’ conduct.” Id.

As a result of the fact that, “aside from acknowledging their role in funding the

erection of the [monument] over a century ago,” plaintiffs had alleged no ownership

rights or other legal interest in the monument, id. at 408, the Court of Appeals

concluded that, since plaintiff had failed to allege an “injury in fact,” the trial court

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had not erred by dismissing plaintiff’s complaint with prejudice pursuant to Rule

12(b)(6), id.

¶ 18 In dissenting from his colleagues’ decision to affirm the trial court’s dismissal

order, Judge Tyson stated that he would have concluded that plaintiff had standing

to pursue the claims asserted in the amended complaint for the purposes of obtaining

relief from what he viewed as the “pre-emptive and unlawful actions of the City of

Winston Salem.” Id. at 409 (Tyson, J., dissenting). According to Judge Tyson, “[t]he

pleadings assert and the record raises factual disputes over who currently owns the

[monument],” with plaintiff not being required “to claim sole ownership to possess

standing in this declaratory judgment action.” Id. at 412. In Judge Tyson’s view,

plaintiff had standing to seek the entry of the requested declaratory judgment

because the amended complaint “clearly assert[ed] and ‘involve[d] an actual

controversy between the parties,’ ” id at 413 (quoting Goldston v. State, 361 N.C. 26,

30 (2006)), and because plaintiff, “[a]s an association of [c]hapters and members,” had

associational standing to pursue its claim against defendants, id. at 414 (citing River

Birch Assocs. v. City of Raleigh, 326 N.C. 100, 130 (1990) (holding that an association

has standing to file an action on behalf of its individual members when “(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

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the lawsuit” (quoting Hunt v. Wash. State Apple Advertising Comm., 432 U.S. 333,

343 (1977)).6 Judge Tyson believed that plaintiff’s members had standing to seek

relief from the City’s actions because “[i]t is undisputed that the [monument] was

paid for and erected by [plaintiff’s] members and [c]hapter,” that plaintiff’s

participation in this litigation was “directly related to the stated non-profit and

charitable goals of the organization,” and that the “claim asserted and the relief

requested does not require the participation of the individual members or

[c]hapters[.]” Id.

¶ 19 In addition, Judge Tyson asserted that, “[a]s a veteran’s memorial and a war

grave for those who did not return home and [an object] listed on the National

Register [of Historic Places], the [monument] is arguably protected from injury or

destruction by the ‘Veterans Memorial Preservation and Recognition Act of 2003.’ ”

Id. at 415 (citing 18 U.S.C. § 1369 (2018) (imposing criminal penalties upon anyone

who destroys or attempts to destroy a monument “commemorating the service of any

person or persons in the armed forces of the United States” that is located on federally

owned or controlled land.)). According to Judge Tyson, a “veteran” for purposes of the

Veterans Memorial Preservation and Recognition Act includes individuals who

6 Judge Tyson also appeared to suggest that plaintiff might have standing to maintain

the present action pursuant to the decision of the Court of Appeals in Fuller v. Easley, 145

N.C. App. 391, 395 (2001) (holding that a plaintiff “may have 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”) (cleaned up)).

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“served for ninety days or more in the active military or [naval] service during the

Civil War,” id. (quoting 38 U.S.C. § 1501), with the Secretary of the Army being

directed “to furnish, when requested, appropriate Government headstones or

markers at the expense of the United States for the unmarked graves” of various

persons, including “Soldiers of the Union and Confederate Armies of the Civil War,”

id. (quoting 24 U.S. § 279(a) (repealed 1 September 1973)).

¶ 20 Judge Tyson further contended that the monument was also protected by

N.C.G.S. § 100-2.1, which provides, subject to certain exceptions, that “a 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.G.S. § 100-2.1(a) (2021)), and restricts the removal or relocation of an “object of

remembrance located on public property,” § 100-2.1(b). According to Judge Tyson,

plaintiffs “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 [monument] and the specific goals expressed in their charter,” with

it being necessary to satisfy these restrictions “prior to any efforts [that] are

commenced to alter or remove the [monument]” if it “is determined to be owned by

the State . . . or is located on State-owned property.” Id. at 416 (emphasis in original).

¶ 21 Judge Tyson further asserted that, even though N.C.G.S. § 160A-193 “grants

statutory authority to a municipality to act when a building or structure constitutes

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an imminent danger to public health or safety,” 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. (citing Monroe v. City of New Bern,

158 N.C. App. 275 (2003)). Judge Tyson claimed the City “would [have acted] ultra

vires to purport to declare a [m]emorial and war grave dedicated to dead and wounded

veterans of that county, whether owned by Forsyth County or [plaintiffs] or the State

to be a public nuisance”; that the City had “no lawful basis to declare the [monument]

to be a public nuisance or to pre-emptively demand then unilaterally remove it from

a property listed on the National Register of Historic Places without prior permission

or agreement”; and that the City could have only removed the monument “after

compliance with the applicable federal and state statutes.” Id. at 416–17 (citing 18

U.S.C. § 1369; 36 C.F.R. § 60.15; N.C.G.S. § 100-2.1). As a result, Judge Tyson

concluded that plaintiff’s request for a declaratory judgment “invokes subject matter

jurisdiction and states standing and claims for relief to survive [d]efendants’ motions

to dismiss.” Id. at 417.

¶ 22 Finally, Judge Tyson contended that the City had “inexplicitly [sic] and

unlawfully sought to declare the [monument] to dead and wounded veterans from

Forsyth County to be a public nuisance, used taxpayer funds to dismantle and remove

the [monument], and sought to relocate the [monument] to the Salem Cemetery

without the agreement of the owners and in violation of federal and state law.” Id.

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at 418. After noting that “[t]emporary removal is permitted by agreement with the

owner when required to preserve the [monument], which must be re-erected within

ninety (90) days thereafter,” id. (citing N.C.G.S. § 100-.21(b)), Judge Tyson asserted

that this statutory provision had no application to the present case because

defendants had made “no allegations of action to physically damage the [monument]”

or “assert[ed] any agreement with [plaintiff], the State, or any other potential owner

to dismantle, remove, or relocate the [monument],” id. In Judge Tyson’s view, the

majority’s decision “[did] 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,” and that the

trial court’s decision to dismiss plaintiff’s amended complaint with prejudice had been

erroneous. Id. at 419. Plaintiff noted an appeal to this Court from the Court of

Appeals’ decision based upon Judge Tyson’s dissent.

II. Analysis

A. Standard of Review

¶ 23 This Court reviews a trial court’s decision to grant or deny a motion to dismiss

for lack of standing using a de novo standard of view, under which it “view[s] the

allegations as true and the supporting record in the light most favorable to the non-

moving party,” Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 644 (2008), with

this being the applicable standard of review regardless of whether the complaint is

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dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) or for

failure to state a claim upon which relief could be granted pursuant to Rule 12(b)(6),

see Harris v. Matthews, 361 N.C. 265, 271 (2007) (dismissal under Rule 12(b)(1)); New

Hanover Cnty. Bd. of Ed. v. Stein, 380 N.C. 94, 2022-NCSC-9, ¶ 21 (dismissal under

Rule 12(b)(6)). An appellate court considering a challenge to a trial court’s decision

to grant or deny a motion to dismiss for lack of subject matter jurisdiction may

consider information outside the scope of the pleadings in addition to the allegations

set out in the complaint. See Harris, 361 N.C. at 271. A complaint is properly

dismissed pursuant to Rule 12(b)(6) “(1) when the complaint on its face reveals that

no law supports [the] plaintiff’s claim; (2) when the complaint reveals on its face the

absence of fact[s] sufficient to make a [ ] claim; [or] (3) when some fact disclosed in

the complaint necessarily defeats [the] plaintiff’s claim.” Intersal, Inc. v. Hamilton,

373 N.C. 89, 98 (2019) (quoting Oates v. Jagg, Inc., 314 N.C. 276, 278 (1985)).

¶ 24 This Court reviews decisions of the Court of Appeals for errors of law. N.C. R.

App. P. 16(a); see also State v. Melton, 371 N.C. 750, 756 (2018). In the event that the

sole basis for a party’s appeal of right is a dissent in the Court of Appeals, the Court’s

review is “limited to consideration of those issues that are (1) specifically set out in

the dissenting opinion as the basis for that dissent, (2) stated in the notice of appeal,

and (3) properly presented in the new briefs[.]” N.C. R. App. P 16(b); see also C.C.

Walker Grading & Hauling, Inc. v. S.R.F. Mgmt. Corp., 311 N.C. 170, 175 (1984)).

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B. Standing

¶ 25 A plaintiff must establish standing in order to assert a claim for relief.

Willowmere Cmty. Ass’n, Inc. v. City of Charlotte, 370 N.C. 553, 561 (2018); Creek

Pointe Homeowner’s Ass’n v. Happ, 146 N.C. App. 159, 164 (2001). “As a general

matter, the North Carolina Constitution confers standing on those who suffer harm.”

Mangum, 362 N.C. at 642 (citing N.C. Const. art. I, § 18 (providing that “[a]ll courts

shall be open” and “every person for an injury done him in his lands, goods, person,

or reputation shall have remedy by due course of law[.]”)). As we have previously

explained,

“[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.’ ”

Stanley v. Dep’t of Conservation and Dev., 284 N.C. 15, 28 (1973) (quoting Flast v.

Cohen 392 U.S. 83, 99 (1968) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962))). Prior

to our decision in Committee to Elect Dan Forest v. Employee Political Action

Committee, 376 N.C. 558, 2021-NCSC-6, the Court of Appeals had consistently held

that North Carolina’s standing requirements were identical to those enforced in the

federal courts, so that a plaintiff was required to show that he or she had suffered

“(1) [an] ‘injury in fact’—an invasion of a legally protected

interest that is (a) concrete and particularized and (b)

actual or imminent, not conjectural or hypothetical; (2)

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[that] the injury is fairly traceable to the challenged action

of the defendant; and (3) [that] it is likely, as opposed to

merely speculative, that the injury will be redressed by a

favorable decision.”

Neuse River Found., 155 N.C. App. at 114, (quoting Lujan v. Defs. of Wildlife, 504

U.S. 555, 560–61 (1992)). In Committee to Elect Dan Forest, however, we held that,

since the North Carolina Constitution does not contain the same “case-or-

controversy” provision that appears in the United States Constitution, it does not

require the existence of an “injury-in-fact” to establish standing. Comm. to Elect Dan

Forest, ¶ 85. Instead, we held that, “[w]hen a person alleges the infringement of a

legal right directly under a cause of action at common law, a statute, or the North

Carolina Constitution . . . the legal injury itself gives rise to standing.” Id.7

¶ 26 Admittedly, neither the trial court nor the Court of Appeals had the benefit of

our decision in Committee to Elect Dan Forest at the time that they addressed the

standing issue that is before us in this case. In light of that decision, to the extent

that the lower courts relied upon plaintiff’s failure to allege an “injury-in-fact” in

determining that plaintiff lacked standing, any such determination constituted error.

7 We did note that, “in directly attacking the validity of a statute under the

constitution, a party must show they have suffered a ‘direct injury.’ ” Comm. to Elect Dan

Forest, ¶ 82 (quoting State ex rel. Summerell v. Carolina-Virginia Racing Ass’n, 239 N.C. 591,

594 (1954)) (emphasis added). Although amicus Chatham for All, et al., argues that N.C.G.S.

§ 100-2.1 is unconstitutional as applied to Confederate monuments generally, no party in this

case has attacked the validity of N.C.G.S. § 100-2.1 or any other statute. As a result, we need

not address whether plaintiff has sustained the sort of “direct injury” needed to support a

challenge to the validity of a statutory provision enacted by the General Assembly.

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On the other hand, this analytical flaw in the reasoning adopted by the trial court

and the Court of Appeals does not change the fact that plaintiff has failed to establish

standing in this case, so that the decisions of the trial court and the Court of Appeals

with respect to the standing issue should be affirmed. See Eways v. Governor’s Island,

326 N.C. 552, 554 (1990) (holding that, “[w]here a trial court has reached the correct

result, the judgment will not be disturbed on appeal where a different reason is

assigned to the decision”).

¶ 27 In its brief, plaintiff advances a number of arguments, some of which it has

asserted for the first time before this Court, in support of its contention that it has

standing to pursue the claims asserted in the amended complaint. Although plaintiff

has, in some instances, conflated its standing-related arguments with its arguments

regarding the legally and conceptually distinct issue of whether the City’s actions

were authorized under the various state and federal laws cited by plaintiff, we will

attempt to address each of its standing-related arguments in turn for the purpose of

determining whether plaintiff has made the necessary showing of standing.

¶ 28 As an initial matter, plaintiff argues that, “to challenge a statute, municipal

ordinance, policy, or action, a plaintiff need only demonstrate that it has been

‘injuriously affected’ by the enactment or policy or action,” quoting Goldston, 361 N.C.

at 35. In apparent reliance upon the law of taxpayer standing, see id. at 31–32,

plaintiff contends that “[c]itizens and taxpayers have the right to seek equitable and

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declaratory relief when governing authorities are preparing to put property dedicated

to the public to an unauthorized use,” citing Wishart v. Lumberton, 254, N.C. 94, 96

(1961). For that reason, plaintiff asserts that “[a] citizen, [acting] in his own behalf

and that of all other taxpayers[,] may maintain a suit seeking to enjoin the governing

body of a municipal corporation from transcending their lawful powers or violating

their legal duties in any mode which will injuriously affect the taxpayers,” citing

Merrimon v. S. Paving & Const. Co., 142 N.C. 539, 545 (1906). In plaintiff’s view,

although 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 defendants 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.

quoting Goldson, 361 N.C. at 33 (2006) (cleaned up). In view of the fact that the

amended complaint “patently assert[s] and ‘involve[s] an actual controversy between

the parties,’ ” specifically a dispute over who owns the monument, plaintiff argues

that it “does not have to claim sole ownership of the [monument] to possess standing

in this declaratory judgment action.”

¶ 29 Secondly, plaintiff claims to be entitled to claim associational standing because

“(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

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the claim asserted nor the relief requested requires the participation of individual

members in the lawsuit,” quoting River Birch Assocs., 326 N.C. at 130. According to

plaintiff, “individual members of [its] organization who live in Forsyth County would

have standing to sue in their own right as taxpayers,” citing Charles Stores v. Tucker,

263 N.C. 710, 717 (1965); Fuller, 145 N.C. App. at 395–96), with the fact that it is a

nonprofit corporation in good standing in North Carolina and the fact that its

“purposes include ‘historical, benevolent, memorial, educational and patriotic

programs’ ” sufficing to “clearly and equivocally give[ ] it an articulated interest in

the status and preservation of objects of remembrance such as the [m]onument.” As

a result, plaintiff contends that the “fundamental premises” upon which it was

founded “establish that its very existence is germane to the issues raised in this

litigation” and that “a thorough presentation and inquiry into the relevant evidence

and the applicable law does not require the active participation of [its] individual

members[.]”

¶ 30 Thirdly, plaintiff contends that “the [amended] complaint alleges colorable

claims that [its] members and its affiliated chapter were responsible for funding and

erecting the [monument],” that “no governmental expenditures were involved in the

enterprise,” and that “[the County] is the owner of the monument.” After conceding

that any of its members who might have been involved in erecting the monument are

no longer alive, plaintiff contends that, “as an incorporated entity which has affiliated

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chapters made up of qualifying members, [it] has a perpetual existence for so long as

it otherwise complies with the laws of the State of North Carolina,” so that it

“necessarily follows” that it “has succeeded to the interests of those deceased

members of an affiliated chapter who were responsible for designing, funding, and

erecting the [monument] in the first place.” Plaintiff argues that “the [amended]

complaint specifically alleges that the monument had its origins in the efforts of

[p]laintiff and its subsidiary local chapter to design, fund, and erect the [monument],”

that this allegation “is facially sufficient to state a particularized interest in the

[monument],” and that the trial court erred by concluding that it lacked standing to

maintain the present declaratory judgment action.

¶ 31 Finally, plaintiff claims that it “did not start this fight” and that it had, instead,

been “clearly and specifically threatened with adverse consequences by the City of

Winston-Salem if it failed or refused to remove the [monument].” According to

plaintiff, “[t]o deny that [it] does not have the right to defend itself in a court of law

when it was the recipient of a clear and unequivocal attack would be to subvert

accepted and well-established concepts of due process and equal protection under

law.” Plaintiff asserts that, while it “does not have to claim sole ownership to possess

standing in this declaratory judgment action,” the City has “repeatedly asserted that

[p]laintiff owned the [monument] in its demands and in other communications sent

to [p]laintiff, while the other [d]efendants assert that ownership of the [monument]

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is unknown.” As a result, plaintiff contends that “[t]his action squarely raises the

question of the ownership of the [monument],” and that “it is only logical to find that

standing exists if an individual or entity is alleged to own an item of property as has

been the case with allegations made concerning [p]laintiff and its alleged ownership

of the [monument].”

¶ 32 Plaintiff’s arguments rest upon a fundamental misunderstanding of the law of

standing. In essence, plaintiff appears to believe that by simply filing a declaratory

action and asserting that there was an “actual controversy between the parties”

relating to the identity of the monument’s owner, it has made a sufficient showing to

establish standing. See Goldston, 361 N.C. at 33. However, as the majority of the

Court of Appeals observed, “[t]he mere filing of a declaratory judgment is not

sufficient, on its own, to grant a plaintiff standing,” United Daughters of the

Confederacy, 275 N.C. App. at 407 (citing Beachcomber Prop., 169 N.C. App. at 824),

with it being necessary for a party to establish standing as a prerequisite for the

assertion of a declaratory judgment claim, Goldston, 361 N.C. at 33 (holding that

plaintiffs had established taxpayer standing before “consider[ing] the form of relief

sought by plaintiffs, who [had] filed a declaratory judgment action”) (emphasis

added); see also Taylor v. City of Raleigh, 290 N.C. 608, 620 (1976) (holding that the

validity of a zoning ordinance could be challenged through a declaratory judgment

action only after determining that the plaintiff had established standing). In other

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words, plaintiff is still required to demonstrate that it has sustained a legal or factual

injury arising from defendants’ actions as a prerequisite for maintaining the present

declaratory judgment action. See Goldston, 361 N.C. at 35 (noting that “[o]nly those

persons may call into question the validity of a statute who have been injuriously

affected thereby in their persons, property, or constitutional rights.”) (quoting

Piedmont Canteen Serv., Inc. v. Johnson, 256 N.C. 155, 166 (1962) (emphasis added

in Goldston)); Comm. to Elect Dan Forest, ¶ 85 (holding that “[t]he North Carolina

Constitution confers standing to sue in our courts on those who suffer the

infringement of a legal right”) (emphasis added).

¶ 33 A careful analysis of the amended complaint satisfies us that plaintiff has

failed to identify any legal right conferred by the common law, state or federal statute,

or the state or federal constitutions of which they have been deprived by defendants’

conduct. For example, plaintiff has not claimed any proprietary or contractual

interest in the monument that would support its contention that the removal of the

monument constituted an “unlawful seizure” in violation of the Fourth Amendment

or an “unlawful[ depriv[ation] of property without due process of law” in violation of

the Fifth Amendment. Without asserting ownership over a piece of property, plaintiff

cannot claim that the property was the subject of an unlawful seizure or deprivation.

See Maines v. City of Greensboro, 300 N.C. 126, 134 (1980) (noting that “[a]t the

threshold of any procedural due process claim is the question of whether the

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complainant has a liberty or property interest, determinable with reference to state

law, that is protectible under the due process guaranty” (citing Bishop v. Wood, 426

U.S. 341 (1976); Presnell v. Pell, 298 N.C. 715 (1979)). A number of plaintiff’s other

allegations, including its assertion that the City’s actions “infringe[d] upon the

freedom of speech of the [plaintiff] and the citizens of the County,” that these actions

“violate[d] the right of equal protection pursuant to the [Fourteenth] Amendment,”

and that “[p]laintiff will be irreparably harmed if [d]efendants take affirmative action

to remove or relocate the [monument] prior to a full adjudication of the respective

rights and obligations of the [p]arties,” are nothing more than conclusory statements

devoid of any factual or legal support. See Krawiec v. Manly, 370 N.C. 602, 610 (2018)

(holding that “a complaint that makes general allegations in sweeping and conclusory

statements, without specifically identifying the trade secrets allegedly

misappropriated, is insufficient to state a claim for misappropriation of trade secrets”

(cleaned up)).

¶ 34 Although the amended complaint claims that the local chapter was involved in

raising funds to erect the monument and that it received permission from the County

to place the monument outside the old county courthouse building in 1905, plaintiff

does not allege that the local chapter or any of its members retained an ownership

interest in the monument or had executed a contract with the County providing that

the monument would remain upon the old courthouse property in perpetuity. As a

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result, even construing plaintiff’s allegations concerning the funding for and erection

of the monument as true, the mere fact that the local chapter “funded and erected the

[monument]” does not suffice to establish standing in the absence of an affirmative

claim to have some sort of proprietary or contractual interest in the monument. This

is particularly true given that the plaintiff’s allegations that the City’s actions

violated various state and federal laws, which we address in further detail below,

assume that the County, rather than plaintiff, owns the monument.

¶ 35 In addition, our taxpayer standing jurisprudence makes it clear that, “where a

plaintiff undertakes to bring a taxpayer’s suit on behalf of a public agency or political

subdivision, his complaint must disclose that he is a taxpayer of the agency [or]

subdivision,” Branch v. Bd. of Ed. of Robeson Cnty., 233 N.C. 623, 626 (1951) (citing

Hughes v. Teaster, 203 N.C. 651 (1932)); see also Fuller, 145 N.C. App. at 395–96, and

“allege facts sufficient to establish” either that “there has been a demand on and a

refusal by the proper authorities to institute proceedings for the protection of the

interests of the public agency or political subdivision” or that “a demand on such

authorities would be useless.” Id. Although plaintiff has included such assertions in

its brief before this Court, no such allegations appear in the amended complaint. See

Davis v. Rigsby, 261 N.C. 684, 686 (1964) (noting that “[a] party is bound by his

pleadings and, unless withdrawn, amended, or otherwise altered, the allegations

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contained in all pleadings ordinarily are conclusive against the pleader”).8 Instead,

the amended complaint alleges that plaintiff is a nonprofit (and, therefore, non-

taxpaying) corporation, see DiCesare v. Charlotte-Mecklenburg Hosp. Auth., 376 N.C.

63, 70 (2020) (holding, in the context of a motion for judgment on the pleadings, that

the movant must show that the complaint “fails to allege facts sufficient to state a

cause of action or admits facts which constitute a complete legal bar thereto”

(emphasis added) (citation omitted)), and it does not allege that any of its members

pay taxes to either the City or the County. In addition, plaintiff has never alleged

that it has brought this action “on behalf of” the City or the County, Branch, 233 N.C.

at 626, or accused public officials of “misuse or misappropriation of public funds,”

Goldston, 361 N.C. at 33. As a result, plaintiff’s amended complaint simply does not

make a valid claim of taxpayer standing in the manner required by this Court’s

precedent.

¶ 36 In the same vein, we hold that the amended complaint fails to allege sufficient

facts necessary to establish associational standing. Although plaintiff argues that it

is a “legacy organization whose purposes include ‘historical, benevolent, memorial,

8 In addition, given that plaintiff did not advance this argument before the Court of

Appeals, it is not permitted do so for the first time before this Court. See Westminster Homes,

Inc. v. Town of Cary Zoning Bd. of Adjustment, 354 N.C. 298, 309 (2001) (noting the

longstanding rule that “issues and theories of a case not raised below will not be considered

on appeal;” see also N.C. R. App. P. 10(a) (providing that issues not raised in a party’s brief

are deemed abandoned).

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educational and patriotic programs;’ ” that its charter “clearly and [un]equivocally

gives it an articulated interest in the status and preservation of objects of

remembrance such as the [m]onument;” that it “has succeeded to the interests of

those deceased members of an affiliated chapter who were responsible for designing,

funding, and erecting the [monument];” and that it has “a specific requirement for

membership . . . that one is a lineal descendant of an individual who served in the

government or the armed forces of the Confederacy,” none of these factual allegations

are raised in the amended complaint. In addition, the amended complaint does not

identify any of plaintiff’s individual members or describe how the legal rights of any

of plaintiff’s individual members have been violated. As a result, the amended

complaint fails to allege facts sufficient to show that “the interests [plaintiff] seeks to

protect are germane to the organization’s purpose” or that its members “would

otherwise have standing to sue in their own right.” River Birch Assocs., 326 N.C. at

130.

¶ 37 In addition, we are simply not persuaded that the purpose for which plaintiff

was organized, standing alone, suffices to provide it with standing to maintain the

present action. Aside from the fact that plaintiff has cited no authority to support its

position, similar arguments have consistently been rejected by both the federal courts

and our Court of Appeals. See, e.g., Gardner v. Mutz, 360 F. Supp. 3d 1269, 1276

(M.D. Fla. 2019) (concluding that, even though the plaintiffs claimed “genealogical

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relationships and membership in associations for particular historical and cultural

foci,” they “cannot base their standing on their preferences for the preservation of

Confederate memorials” because such preferences “are not sufficiently particularized,

but are general, public-interest grievances, and vindicating the public interest is the

function of the legislative and executive branches, not the judicial branch” (cleaned

up)), vacated, in part, on other grounds, 962 F.3d 1329 (11th Cir. 2020); McMahon v.

Fenves, 323 F. Supp. 3d 874, 880 (W.D. Tex. 2018) (observing that the plaintiffs “may

be more deeply attached to the values embodied by the Confederate monuments than

the average student rushing to class or the mall, but their identities as descendants

of Confederate veterans do not transform an abstract ideological interest in

preserving the Confederate legacy into a particularized injury”); Soc’y for Hist. Pres.

of Twentysixth N.C. Troops, Inc. v. City of Asheville, 282 N.C. App. 701, 2022-NCCOA-

218, ¶¶ 26–27 (concluding that that neither a purported violation of N.C.G.S. § 100-

2.1 nor the plaintiff’s status as “a legacy organization which was responsible for” the

restoration of a monument that was subsequently removed by the City of Asheville

sufficed to “establish a legal injury suffered by [the] plaintiff sufficient to establish

standing”);9 Hist. Pres. Action Comm. v. Reidsville, No. COA12-1386, 2013 WL

6096749, at *5 (N.C. Ct. App. Nov. 19, 2013) (unpublished) (concluding that the

9 The decision in Twentysixth North Carolina Troops is particularly noteworthy

because the Court of Appeals’ analysis, unlike the earlier decision in this case, rested upon

this Court’s decision in Committee to Elect Dan Forest.

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plaintiffs’ claim that they “derived a particular aesthetic enjoyment from the

[Confederate] monument and are injured by its removal” was insufficient to support

a claim of standing).

¶ 38 Finally, plaintiff’s assertion that it has standing because it “[has] the right to

defend itself in a court of law when it was the recipient of a clear and unequivocal

attack” finds no support in the law or the facts of this case. Neither the allegations

contained in the amended complaint nor the evidence contained in the record support

plaintiff’s contention that it was “clearly and specifically threatened with adverse

consequences by the City of Winston-Salem if it failed or refused to remove the

[monument].” Instead, the amended complaint simply alleges that the City had

“caused a letter to be sent to [plaintiff] stating that it had until January 31st, 2019 to

remove [the monument].” The letter itself, a copy of which appears in the record on

appeal and the authenticity of which has not been questioned by any party,

acknowledges that “[c]laims of ownership of the [monument] have come from the

United Daughters of the Confederacy,” directs plaintiff “to remove and relocate” the

monument by 31 January 2019, and warns that “[f]ailure to comply with this directive

may result in the [C]ity seeking a court order for the removal and relocation of the

[monument] to preserve the same and to address public safety concerns[.]” Although

the letter does suggest that the City intended to utilize some sort of judicial process

to facilitate the monument’s removal in the event that plaintiff failed to remove it

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voluntarily, neither the letter nor the amended complaint contains any threat that

the City intended to institute legal action directly against plaintiff.

¶ 39 In addition, even if one takes the allegations contained in the amended

complaint as true, the mere fact that the City sent plaintiff a letter in which it set a

deadline for the removal of the monument does not automatically confer standing

upon plaintiff, particularly given the absence of any allegation that plaintiff has any

proprietary or contractual interest in the monument. As the trial court correctly

observed, plaintiff, as the party that initiated the lawsuit, has “the burden of proving

that standing exists.” Chávez v. Wadlington, 261 N.C. App. 541, 544 (2018) (quoting

Myers v. Baldwin, 205 N.C. App. 696, 698 (2010)).10 Thus, for all these reasons, we

hold that the amended complaint even “when liberally construed,” Wells Fargo Ins.

Servs. USA, Inc. v. Link, 372 N.C. 260, 266 (2019), fails to allege “the infringement of

a legal right directly under a cause of action at common law, a statute, or the North

Carolina Constitution” sufficient to give plaintiff standing to challenge the City’s

actions in removing the monument from the old courthouse property, Comm. to Elect

Dan Forest, ¶ 85.

10 In the event that the City had brought suit against plaintiff for the purpose of

forcing it to remove the monument, plaintiff would, of course been entitled to defend itself,

with the City, rather than plaintiff, having been required to show that it had standing to seek

the requested relief from plaintiff.

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C. State Law Claims

¶ 40 In addition, plaintiff argues that the City violated numerous provisions of state

law by relocating the monument, with each of these claims appearing to rest upon

the premise that the County owns the monument. A careful analysis of each of these

claims in light of the allegations set out in the amended complaint satisfies us that

plaintiff lacks standing to bring a claim under these statutes, that many of plaintiff’s

contentions are not properly before the Court, and that, in any event, plaintiff’s

arguments under these statutes lack sufficient legal support.

1. N.C.G.S. § 100-2.1 (Protection of Monuments)

¶ 41 As an initial matter, plaintiff argues that the City “denied plaintiff due process

of law and violated [N.C.G.S.] § 100-2.1” by removing the monument from the old

courthouse property. N.C.G.S. § 100-2.1 (“Protection of monuments, memorials, and

works of art”) provides as follows:

(a) Approval Required.--Except as otherwise provided in

subsection (b) of this section, a 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.

(b) Limitations on Removal.--An object of remembrance

located on public property may not be permanently

removed and may only be relocated, whether temporarily

or permanently, under the circumstances listed in this

subsection and subject to the limitations in this subsection.

An object of remembrance that is temporarily relocated

shall be returned to its original location within 90 days of

completion of the project that required its temporary

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removal. An object of remembrance that is permanently

relocated shall 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

relocated. An object of remembrance may not be relocated

to a museum, cemetery, or mausoleum unless it was

originally placed at such a location. 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. The circumstances under which an object of

remembrance may be relocated are either of the following:

(1) When appropriate measures are required by the

State or a political subdivision of the State to

preserve the object.

(2) When necessary for construction, renovation, or

reconfiguration of buildings, open spaces, parking,

or transportation projects.

(c) Exceptions.--This section does not apply to the

following:

(1) Highway markers set up by the Board of

Transportation in cooperation with the Department

of Environmental Quality and the Department of

Natural and Cultural Resources as provided by

Chapter 197 of the Public Laws of 1935.

(2) An object of remembrance owned by a private

party that is located on public property and that is

the subject of a legal agreement between the private

party and the State or a political subdivision of the

State governing the removal or relocation of the

object.

(3) An object of remembrance for which a building

inspector or similar official has determined poses a

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threat to public safety because of an unsafe or

dangerous condition.

N.C.G.S. § 100-2.1. According to plaintiff, N.C.G.S. § 100-2.1 “applies to the

controversy between the [p]arties on the basis that the [monument] is patently an

object of remembrance located on public property,” with plaintiff having made

“facially sufficient allegations tending to establish a colorable right of ownership of

the [monument] in Forsyth County.” In addition, plaintiff appears to argue that

N.C.G.S. § 100-2.1 gives plaintiff standing to challenge the monument’s removal.

¶ 42 As support for its argument that the County owns the monument, plaintiff

directs our attention to language appearing in the contract of sale and the deed

transferring ownership of the old courthouse property from the County to Winston

Courthouse “tend[ing] to establish that [the] County owns the [monument] and that

it specifically and intentionally reserved easements for the purpose of maintaining

the [monument.]” Secondly, plaintiff notes that the amended complaint “alleges that

members of its local chapter raised the funds necessary to design, build, and install

the [monument] from private sources,” that the local chapter “dedicated the

[monument] to Forsyth County and its citizens,” and that “the historical record

establishes that the Forsyth County Commissioners expressly permitted the

[monument] to be placed on land which the County owned[.]” According to plaintiff,

“[s]uch allegations are patently sufficient to invoke the provisions of [N.C.G.S.] § 100-

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2.1 as a basis for adjudicating the rights and responsibilities of the respective parties

to this dispute.”

¶ 43 According to plaintiff, “[d]edication is a form of transfer, either formal or

informal, in which one grants rights to the public in their property,” citing Spaugh v.

Charlotte, 239 N.C. 149 (1954). Plaintiff asserts that the amended complaint “alleges

sufficient facts from which one could reasonably conclude that it was intended for the

[monument] to be dedicated to public use and that the governing body of Forsyth

County accepted such dedication on behalf of the citizens of the county.” Arguing in

reliance upon the deed transferring the old courthouse property to Winston

Courthouse, plaintiff argues that “[i]t is patently nonsensical for [the] County to

reserve easement rights with regard to the [monument] . . . for purposes of

maintenance and repair if it did not in fact own the [monument]” and “the plot[ ] of

land upon which [the monument was] situated.”

¶ 44 Plaintiff then argues that, upon its placement on the courthouse property, the

monument became a “fixture” attached to real property and that its status did not

change when the County sold the property to Winston Courthouse, given that

“[c]hattels of a heavy and permanent character, even though not imbedded or

physically fastened to the land, but merely placed on the land and held in place by

their own weight, such as a monument, are real fixtures,” citing Webster’s Real

Estate Law in North Carolina § 2-1 (5th ed. 1999); Snedeker v. Waring, 12 N.Y. 170

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(1854) (holding that a three-ton statue of George Washington that rested on a stone

foundation without having been otherwise attached to the land constituted a “fixture”

that was “part of the realty”)).11 In this case, plaintiff claims, the monument was

“erected and placed upon [the courthouse property] with the express assent of the

Forsyth County Commission” and “has become part of the realty[.]”

¶ 45 Plaintiff further argues that, in order for N.C.G.S. § 100-2.1(b) to apply, the

object in question must be (1) an “object of remembrance” and (2) situated on public

property. Plaintiff claims that the monument meets the first of these two criteria

because “it is a monument of a permanent character that commemorates those who

were killed in the Confederate armed forces during the Civil [War], a seminal event

in the history of North Carolina.” According to plaintiff, “[t]here is a factual dispute

concerning whether the [monument] is situated on public property.” In plaintiff’s

view, the monument is located on public property because (1) the monument was

dedicated to the public and accepted by the County; (2) it was situated on real

property belonging to the County; and (3) that the County reserved easements in the

deed conveying the courthouse to Winston Courthouse, which plaintiff believes “is

11 Although plaintiff raised this argument before the Court of Appeals, neither the

majority nor the dissenting opinions addressed it. Even so, in light of our belief that it

involves a purely legal issue and the fact that the law in this area is clear, we elect to address

this contention rather than remanding the case to the Court of Appeals for further

proceedings.

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evidence tending to show that the [monument] continued to be situated on public

property.”

¶ 46 We are not persuaded by any of plaintiff’s arguments. As an initial matter,

plaintiff has completely failed to explain how the City’s actions “denied plaintiff due

process of law.” In order to establish a due process violation, a plaintiff must identify

a cognizable legal right of which it was allegedly deprived by the City’s actions. See

State v. Thompson, 349 N.C. 483, 491 (1998) (discussing the differences between

substantive and procedural due process, both of which serve to protect a party’s legal

rights). Even if N.C.G.S. § 100-2.1 applies in the set of circumstances that is before

us in this case, we are unable to conclude that it confers any legal rights upon plaintiff

sufficient to give rise to any sort of due process claim or other valid legal claim.

¶ 47 “[A] statute may authorize a private right of action either explicitly or

implicitly, though typically, a statute allows for a private cause of action only where

the legislature has expressly provided a private cause of action within the statute.”

Sykes v. Health Network Solutions, Inc., 372 N.C. 326, 338 (2019) (cleaned up); see

also Comm. to Elect Dan Forest, ¶ 68–69 (acknowledging the General Assembly’s

“power to create causes of action and permit a plaintiff to recover in the absence of a

traditional injury”). As a result, in the event that “the legislature exercises its power

to create a cause of action under a statute,” “the plaintiff has standing to vindicate

the legal right so long as he is in the class of persons on whom the statute confers a

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cause of action.” Comm. to Elect Dan Forest, ¶ 82 (emphasis added). Although this

Court has not addressed the circumstances in which a statute implicitly authorizes a

private cause of action, the Court of Appeals has concluded that “an implicit right of

a cause of action exists when a statute requires action from a party, and that party

has failed to comply with the statutory mandate.” Sugar Creek Charter Sch., Inc. v.

Charlotte-Mecklenburg Bd. of Educ., 195 N.C. App. 348, 355 (2009) (citing Lea v.

Grier, 156 N.C. App. 503, 508–09 (2003)).

¶ 48 We are unable to identify anything in N.C.G.S. § 100-2.1, particularly when

read in conjunction with the allegations of the amended complaint, that explicitly

authorizes the assertion of a private cause of action for the purpose of enforcing that

statutory provision.12 The absence of explicit language authorizing the assertion of a

private right of action based on N.C.G.S. § 100-2.1 stands in stark contrast to the

statute at issue in Committee to Elect Dan Forest, which specifically authorized a

candidate for elected office who had complied with the relevant campaign finance

laws to sue an opposing candidate or candidate committee for an alleged violation of

those same laws. See Comm. to Elect Dan Forest, ¶ 6 (citing N.C.G.S. § 163-278.39A(f)

(now repealed)). In addition, even assuming, without deciding, that the Court of

12 After recognizing that the statute “is not self-executing in that no enforcement

mechanism is provided under its terms,” plaintiff simply asserts that “the statute is a clear

and unequivocal expression of public policy by the General Assembly.” A mere expression of

legislative policy, without more, is not sufficient to support the recognition of a right on the

part of any particular party to assert a private right of action.

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Appeals has correctly identified the circumstances under which a statute implicitly

authorizes a private right of action in Sugar Creek Charter School, nothing in

N.C.G.S. § 100-2.1 “requires action from a party” with which “that party has failed to

comply[.]” 195 N.C. App. at 356. Instead, N.C.G.S. § 100-2.1 prohibits the removal

or relocation of certain specified objects that are owned by the State or located on

public property. Finally, even if N.C.G.S. § 100-2.1 could be interpreted to implicitly

authorize the assertion of a private right of action, nothing in the relevant statutory

language or the allegations contained in the amended complaint suggests that

plaintiff would be “in the class of persons on which the statute confers the right[.]”

Comm. to Elect Dan Forest, ¶ 67; see also Charles Stores, 263 N.C. at 717 (holding

that “[o]nly one who is in immediate danger of sustaining a direct injury from

legislative action may assail the validity of such action,” and that it “is not sufficient

that he has merely a general interest common to all members of the public”).

¶ 49 In addition, we further conclude that, even if plaintiff is entitled to assert a

private right of action to enforce N.C.G.S. § 100-2.1, that statutory provision has no

application to the facts that are before us in this case in light of the allegations

contained in the amended complaint. As an initial matter, it is undisputed that, prior

to its removal, the monument stood on property that had been privately owned by

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Winston Courthouse since 2014.13 Although plaintiff has advanced a number of

arguments in an attempt to avoid the consequences of this undisputed fact, none of

them have any merit. For example, the fact that the deed transferring the old

courthouse property to Winston Courthouse contained an exclusion relating to the

monument and contemplated the reservation of an easement for the monument’s

maintenance does not, as plaintiff asserts, establish that the County owns the

monument,14 given that a party cannot transfer title to property in which it lacks any

sort of ownership interest. 63C Am. Jur. 2d Property § 43. In the event that the

County did not own the monument, its exclusion from the conveyance could simply

13 N.C.G.S. § 100-2.1 had an effective date of 23 July 2015, which was more than a

year after the County conveyed the old courthouse property to Winston Courthouse. Nothing

in the relevant statutory language suggests that N.C.G.S. § 100-2.1 was intended to have any

sort of retroactive application to transactions that had occurred prior to the statute’s effective

date. See Cultural History Artifact Management and Patriotism Act of 2015, S.L. 2015-170,

§ 3(c), 2015 N.C. Sess. Laws 435, 437. “It is a well-established rule of construction in North

Carolina that a statute is presumed to have prospective effect only and should not be

construed to have a retroactive application unless such an intent is clearly expressed or arises

by necessary implication from the terms of the legislation.” State v. Green, 350 N.C. 400, 404

(1999).

14 As we have already noted, even though the deed transferring the old courthouse

property from the County to Winston Courthouse contemplates that Winston Courthouse

would execute certain easements in favor of the County, the record contains no indication

that any such easements were ever executed or recorded. “An express easement must be in

writing pursuant to the Statute of Frauds and be sufficiently certain to permit the

identification and location of the easement with reasonable certainty.” Singleton v. Haywood

Elec. Membership Corp., 151 N.C. App. 197, 202 (2002). As a result, a mere agreement to

create an easement in the future does not suffice to actually create such an easement, see id.

at 203 (holding that the plaintiff’s contractual obligation to furnish “all necessary easements

and rights-of-way” to the defendant did not, by itself, create an easement), and there is no

contention in the amended complaint that any sort of implied easement exists or even could

exist in this situation.

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have reflected the County’s recognition that it could not warrant title to that piece of

property, see Culbreth v. Britt Corp., 231 N.C. 76, 80 (1949) (defining a warranty of

title as “an agreement of the warrantor to make good by compensation in money any

loss directly caused by the failure of the title which his deed purports to convey”), and

nothing in the amended complaint refutes this assumption. As a result, the mere

exclusion of an item of personal property from a conveyance of real property is not

tantamount to an affirmative claim of ownership over the excluded property.

¶ 50 Although its “fixture-related” argument is not entirely clear to us, plaintiff

appears to be contending that, because the monument was “dedicated to public use”

at the time that it was placed on the old courthouse property, it became part of the

“real property belonging in fee simple to Forsyth County.” Although the general rule

in this jurisdiction is that “whatever is attached to the land is understood to be part

of the realty,” “[w]hether a thing attached to the land be a fixture or chattel personal,

depends upon the agreement of the parties, express or implied.” Lee-Moore Oil Co. v.

Cleary, 295 N.C. 417, 419 (1978) (quoting Feimster v. Johnson, 64 N.C. 259, 260–61

(1870)). In this case, however, there is no allegation in the amended complaint nor

any evidence in the record regarding the intent of either plaintiff, its local chapter, or

the County with respect to the issue of whether the monument became “part of the

realty” at the time of its installation. Instead, the amended complaint alleges that

the County granted plaintiff “permission to erect a memorial.” As we stated in Lee-

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Moore Oil, “[a] building, or other fixture which is ordinarily part of the realty, is held

to be personal property when placed on the land of another by contract or consent of

the owner.” Id. at 420 (quoting Feimster, 64 N.C. at 261).15

¶ 51 Alternatively, plaintiff may be contending that, in the event that the real

property upon which a fixture is located is conveyed to another party and the fixture

is excluded from the conveyance, the real property beneath the fixture is excluded

from the transfer as well. For example, plaintiff argues in its brief that “the

reservation of easements by the County in its deed conveying the old courthouse for

the purpose of maintaining monuments and plaques on [the courthouse property] is

evidence tending to show that the [monument] continued to be situated on public

property.” However, plaintiff cites no authority in support of this novel proposition,

which cannot be found in any of this Court’s precedent, and nothing in the amended

complaint serves to justify adoption of plaintiff’s apparent position. Cf. Bond v. Coke,

71 N.C. 97, 100 (1874) (holding that “personal chattels which have been fixtures are

15 Although the amended complaint alleges that the monument “was dedicated”

during a ceremony in 1905, it does not explain what plaintiff means by “dedicated.” In its

brief, plaintiff claims, in reliance upon Spaugh, that what occurred in 1905 constituted a

“dedication” for “public use.” However, Spaugh defined “dedication” as “the intentional

appropriation of land by the owner to some public use.” 239 N.C. at 159 (emphasis added).

Even if Spaugh applies to both personal and real property, we have held that, “[w]here

property is dedicated or set apart without restriction merely for public uses, the municipal

authorities may determine for what use it is appropriate and shall be used, and, if not

irrevocably dedicated or appropriated by them to any particular public use, its use may be

changed as the public convenience and necessities require.” Wishart, 254 N.C. at 96 (quoting

64 C.J.S. Mun. Corp. § 1818).

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incorporated in, and are, a part of the land as much so as a house or tree, until an

actual severance and therefore, a deed conveying the land without excepting therein

the fixtures, has legal effect of passing the [chattels], which are part and parcel of the

land”) (emphasis added). In the event that we were to accept plaintiff’s argument as

valid, we would necessarily also have to hold that, when a landowner grants timber

rights to another, the grantee gains title not only to the tree but also to the discrete

pieces of land upon which the tree is located. Cf, e.g., Hornthal v. Howcott, 154 N.C.

228 (1911). Such a result would be completely inconsistent with long-standing

principles of North Carolina property law.

¶ 52 The facts at issue in this case are similar to those that were before the Court

of Appeals in National Advertising Co. v. North Carolina Department of

Transportation, in which an advertising company, acting in accordance with a five-

year lease, erected a billboard upon real property that it did not own. 124 N.C. App.

620, 622–23 (1996). After purchasing the property upon which the billboard was

located, the North Carolina Department of Transportation sent a letter to the

advertising company in which it requested that the billboard be removed at the

Department’s expense. Id. After the Department removed the sign following the

advertising company’s refusal to do so, the advertising company sought damages on

the basis of an inverse condemnation claim. Id. at 623. As a result of the fact that

no lease agreement relating to the billboard had ever been recorded, the Court of

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Appeals held that the advertising company did not have any interest in the

underlying real property, that the advertising company had no right to insist that the

billboard remain on the property, and that, since the billboard was “abandoned

property,” the Department had every right to remove the billboard from its property

without paying compensation to the advertising company. Id. at 624–25. In the same

vein, we conclude that, in the event that plaintiff remained the owner of the

monument and that the County had granted permission to place the monument upon

the old courthouse property, the monument had become abandoned property

following the transfer of the old courthouse property to Winston Courthouse, and that

Winston Courthouse, as a subsequent owner, was entitled to have the monument

removed. For all these reasons, we hold that, based on the facts alleged in the

amended complaint and contained in the record that is before us, the monument was

not “located on public property,” and N.C.G.S. § 100-2.1(b) has no application to this

case.

¶ 53 Similarly, we are not persuaded that N.C.G.S. § 100-2.1(a) has any bearing

upon the proper resolution of this case given the absence of any allegation in the

amended complaint that the monument is “owned by the State.” Although “counties

and their respective boards of county commissioners are ‘creatures of the General

Assembly and serve as agents and instrumentalities of State government,’ ” Silver v.

Halifax Cnty. Bd. of Comm’rs, 371 N.C. 855, 866 (2018) (quoting Stephenson v.

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Bartlett, 355 N.C. 354, 364 (2002)), the General Assembly has specifically authorized

counties to independently acquire, maintain, and dispose of real or personal property,

see N.C.G.S. §§ 153A-158, 169, 176; see also Davis v. Forsyth Cnty., 117 N.C. App.

725, 727 (1995) (concluding that the county was a “person” for purposes of the cartway

statute because “counties are established as legal entities and are empowered by law

to acquire land”) (citing N.C.G.S. § 153A-158). Similarly, the North Carolina

Constitution authorizes counties and municipalities to own property independently

of the State. See N.C. Const. art. V, § 2 (providing that “[p]roperty belonging to the

State, counties, and municipalities shall be exempt from taxation”). As a result, even

if the County owns the monument, that fact would not convert the monument into

State property subject to N.C.G.S. § 100-2.1(a). As a result, for all of these reasons,

N.C.G.S. § 100-2.1 has no bearing upon the proper resolution of this case.

2. N.C.G.S. Chapter 116B (Unclaimed Property)

¶ 54 Secondly, plaintiff argues that the City violated N.C.G.S. §§ 116B-2,16 B-56,

and B-59 by removing the monument from the old courthouse property “without first

giving notice and complying with procedures required by such statutes with regard

to abandoned or unclaimed property whose owner cannot be ascertained.” In

plaintiff’s view, “[t]he gist of [its] claim for a declaratory judgment is the initial

determination of ownership of the [monument,]” with N.C.G.S. § 116B-51 et seq.,

16 Recodified at N.C.G.S. § 116B-2.2 (2021).

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having enunciated “comprehensive guidelines and procedures to be employed in order

to ascertain ownership of the property alleged to be abandoned or unclaimed, and for

the transfer of such property to the State.” According to plaintiff, “[i]f the [monument]

were deemed to be abandoned or unclaimed, it would escheat to the State,” at which

point “the State would then be subject itself for the manner in which it exercised

possession of the [monument] under [N.C.G.S. § 100-2.1].” Plaintiff asserts that

neither the City nor the County “has made any effort to invoke the provisions of

Chapter 116B in order to ascertain whether the [monument] has been abandoned or

unclaimed” and have, instead, “unilaterally undertaken to decide who owns the

[monument], who is responsible for it, and what will be done with it.” In plaintiff’s

view, “due process of law requires more than the blatant assertion of the right to

decide a question on the part of a governmental unit without giving interested parties

meaningful notice and opportunity to be heard.”

¶ 55 As an initial matter, we note that plaintiff did not present this “abandoned

property” argument to the Court of Appeals or include any allegations supporting it

in the amended complaint, but instead it was advanced for the first time in Judge

Tyson’s dissent. Aside from the fact that “issues and theories of a case not raised

below will not be considered on appeal,” Westminster Homes, Inc. v. Town of Cary

Zoning Bd. of Adjustment, 354 N.C. 298, 309 (2001); see also N.C. R. App. P. 10(a),

arguments raised by a dissenting judge at the Court of Appeals on his or her own

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motion cannot serve as a basis for an appeal to this Court either, see M.E. v. T.J., 380

N.C. 539, 2022-NCSC-23, ¶ 65; see also Viar v. N.C. Dep’t of Transp., 359 N.C. 400,

402 (2005) (per curium) (noting that “[i]t is not the role of the appellate courts . . . to

create an appeal for an appellant”). In addition, even if plaintiff’s “abandoned

property” argument was otherwise properly before us, we note that plaintiff’s

amended complaint does not assert a claim under the Unclaimed Property Act and,

instead, demonstrates that no such claim could be sustained.

¶ 56 The Unclaimed Property Act defines “property” as

(i) money or tangible personal property held by a holder

that is physically located in a safe deposit box or other

safekeeping depository held by a financial institution

within this State or (ii) a fixed and certain interest in

intangible property or money that is held, issued, or owed

in the course of a holder’s business, or by a government,

governmental subdivision, agency, or instrumentality, and

all income or increments therefrom.

N.C.G.S. § 116B-52(11) (emphasis added). In light of this definition, the monument

as described in the amended complaint simply cannot qualify as abandoned property

that has escheated to the State. In addition, nothing in the amended complaint

suggests that plaintiff is within the class of persons entitled to notice before the

monument would escheat to the State. The statute provides that the “apparent

owner” of abandoned property is entitled to at least 60 days’ notice before the holder

of the property reports the property abandoned to the State Treasurer, N.C.G.S.

§§ 116B-59–60, with “apparent owner” being defined as “a person whose name

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appears on the records of a holder as the person entitled to property held, issued, or

owing by the holder,” N.C.G.S. § 116B-52(1). As a result, since plaintiff has not

claimed any proprietary or contractual interest in the monument or otherwise alleged

facts that would qualify it as the “apparent owner” of the monument, it has failed to

establish a claim for relief under the Unclaimed Property Act.

3. N.C.G.S. § 160A-193 (Abatement of Nuisances)

¶ 57 Thirdly, plaintiff asserts that the City violated N.C.G.S. § 160A-193 by

declaring the monument to be a public nuisance and removing it without providing

plaintiff with the required statutory notice, an opportunity to be heard, and a

reasonable opportunity to make the monument safe. In view of the fact that N.C.G.S.

§ 160A-193 provides, in pertinent part, that “[a] city shall have the 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,”

N.C.G.S. § 160A-193(a), plaintiff contends that “the authority of a city to act under

this statutory grant of authority [without notice] is expressly limited to those

situations in which a building or other structure constitutes an imminent danger to

the public health or safety, creating an emergency necessitating the structure’s

immediate demolition,” and that “cities may not summarily demolish structures

merely because it is quicker and easier to do so than providing the owners notice and

an opportunity to be heard,” citing Monroe, 158 N.C. App. at 278 (2003)). According

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to plaintiff, even though the City “has alleged in public statements that the

[monument] presented a danger to public safety, there is no evidence that such is the

case.”

¶ 58 In addition, plaintiff contends that, “[i]f a city wishes to destroy a structure

that does not pose an imminent threat to the public, then the city must follow the

procedures required by [N.C.G.S.] §§ 160A-441 through 160A-450,” citing Newton v.

City of Winston-Salem, 92 N.C. App. 446, 449 (1988), which require the City to

“provid[e] the owner with notice, a hearing, and a reasonable opportunity to bring his

or her dwelling into conformity with the housing code,” citing N.C.G.S. § 160A-443.

In plaintiff’s view, the City “has unlawfully sought to use its statutory authority to

abate nuisances which pose a threat to public health and safety by making claims

which are patently bogus even under its own court filings in order to avoid the reach

and limitation of [N.C.G.S. § 100-2.1].” Plaintiff contends that, if it were determined

to be the owner of the monument, “it would necessarily follow that [p]laintiff has

standing to defend the placement of the [monument] on [the courthouse property], as

well as to invoke the arguments that the [monument] does not constitute a public

nuisance under [N.C.G.S.] § 160A-193.”

¶ 59 A careful review of the record and the allegations contained in the amended

complaint satisfies us that plaintiff lacks standing to challenge the City’s

determination that the monument had become a public nuisance. N.C.G.S. § 160A-

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193(a) authorizes a city to “summarily remove, abate, or remedy everything in the

city limits . . . that is dangerous or prejudicial to the public health or public safety.”

In Monroe, a case upon which plaintiff places substantial reliance, the Court of

Appeals concluded that N.C.G.S. § 160A-193 authorizes a city “to summarily

demolish a building only if the building constitutes an imminent danger to the public

health or safety, creating an emergency necessitating the building’s immediate

demolition,” 158 N.C. App. at 278. Otherwise, the city must comply with the

procedures set forth in Chapter 160A, Article 19 (now Chapter 160D, Article 12),17

including the requirement that it provide notice and an opportunity to be heard to

the owner. Id.; see also Newton, 92 N.C. App. at 451–52 (holding that the city had

failed to give the owner actual notice of its intent to demolish his property, in violation

of the statutory notice requirements) (emphasis added).

¶ 60 N.C.G.S. § 160D-1203, which governs the demolition of a “dwelling” that is

deemed to be “unfit for human habitation,” provides that

[w]henever a petition is filed with the public officer by a

public authority or by at least five residents of the

jurisdiction charging that any dwelling is unfit for human

17 Although Chapter 160A, Article 19 (N.C.G.S. §§ 160A-441 et seq.) was repealed and

substantively recodified in Chapter 160D, Article 12 (N.C.G.S. § 160D-1201 et seq.), the

provisions upon which plaintiff relies are virtually unchanged. See An Act to Clarify,

Consolidate, and Reorganize the Land-Use Regulatory Laws of the State, S.L. 2019-111, 2019

N.C. Sess. Law 424. In light of this fact and the fact that the new statute is retroactively

applicable, see An Act to Complete the Consolidation of Land-Use Provisions into One

Chapter of the General Statutes, S.L. 2020-25, https://www.ncleg.gov/EnactedLegislation/

SessionLaws/PDF/2019-2020/SL2020-25.pdf, we cite to the current statutory provisions in

the text of this opinion.

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habitation or when it appears to the public officer that any

dwelling is unfit for human habitation, the public officer

shall, if a preliminary investigation discloses a basis for

such charges, issue and cause to be served upon the owner

of and parties in interest in such dwellings a complaint

stating the charges in that respect and containing a notice

that an administrative hearing will be held before the

public officer, or the officer’s designated agent, at a place

within the county in which the property is located.

N.C.G.S. § 160D-1203(2) (emphasis added). An “owner” for purposes of N.C.G.S.

§ 160D-1203(2) is “the holder of the title in fee simple and every mortgagee of record,”

while “parties in interest” is defined as “[a]ll individuals, associations, and

corporations that have an interest of record in a dwelling and any that are in

possession of a dwelling.” N.C.G.S. § 160D-1202(1)–(2). In view of the fact that

plaintiff did not allege in the amended complaint that it had any proprietary or

contractual interest in the monument or that it has an “interest of record” or is “in

possession of” the monument, plaintiff is simply not a member of the class of persons

entitled to notice and an opportunity to be heard under N.C.G.S § 160D-1203(2). In

addition, N.C.G.S. § 160D-1201 et seq. only applies to “dwellings,” which is defined as

“[a]ny building, structure, manufactured home, or mobile home, or part thereof, used

and occupied for human habitation or intended to be so used[.]” N.C.G.S. §§ 160D-

102(15), 1201(a) (emphasis added). Given that plaintiff has failed to allege facts

pursuant to which the monument would qualify as a “dwelling” as defined above, its

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removal is not subject to N.C.G.S. § 160D-1201 et seq. As a result, plaintiff’s

challenges to the City’s nuisance declaration are without merit.

D. Federal Law Claims

¶ 61 In addition, plaintiff has advanced a number of arguments in reliance upon

federal law in an apparent attempt to demonstrate that the amended complaint

sufficiently alleged that the County owns the monument and that the City acted

unlawfully in removing it. First, plaintiff asserts that the old courthouse was listed

on the National Register of Historic Places in 2013 at the recommendation of the

County and the North Carolina Department of Cultural and Natural Resources, and

that this is significant because 54 U.S.C. § 302105(a) provides that the property

owner must be given the opportunity to concur in or object to the property’s inclusion

on the National Register before that property can be listed there. Plaintiff further

asserts that “the evidence would show that the [monument] was not excluded from

the application or from the designation” and that the County had failed to explain

how it “could initiate and fund the process for [the] designation of [the courthouse] as

a National Historic Landmark without owning the property in the first place[.]”

¶ 62 Secondly, plaintiff argues that, “[a]s a veteran’s memorial and a war grave for

those who did not return home and listed on the National Register, the [monument]

is arguably protected from injury or destruction by the ‘Veterans’ Memorial

Preservation and Recognition Act of 2003,’ ” citing 18 U.S.C. § 1369 (2018), and

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asserts that, “[u]nder Federal law, the term ‘veteran’ is defined to include persons

who ‘served for ninety days or more in the active military or nav[a]l service during

the Civil War,’ ” citing 38 U.S.C. § 1501 (2018). In plaintiff’s view, the City “ha[d] no

lawful basis to declare the [monument] 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,” nor may it do so

without complying with the applicable state and federal laws, citing 18 U.S.C. § 1369

(2018); 36 C.F.R. § 60.15; N.C.G.S. § 100-2.1(b). We are not persuaded by any of these

arguments.

¶ 63 As an initial matter, we note that, like its arguments relating to the Unclaimed

Property Act, plaintiff failed to assert any claim in reliance upon the Unclaimed

Property Act in the amended complaint or present any argument in reliance upon

that statute to the trial court or the Court of Appeals and, instead, simply adopted

this argument from Judge Tyson’s dissent. For that reason, this argument is not

properly before the Court. See Westminster Homes, 354 N.C. at 309; M.E., ¶ 65; Viar,

359 N.C. at 402; N.C. R. App. P. 10(a). In addition, when considered in light of the

record and the allegations contained in the amended complaint, plaintiffs’ arguments

are completely devoid of merit. A careful reading of the relevant statutory provisions

demonstrates that none of the federal statutes or regulations upon which plaintiff

now relies creates a private cause of action authorizing plaintiff to enforce them. See

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Warth v. Seldin, 422 U.S. 490, 500 (1975) (observing that “the standing question in

such cases is whether the constitutional or statutory provision on which the claim

rests properly can be understood as granting persons in the plaintiff’s position a right

to judicial relief”); Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016) (concluding that,

even though Congress has the authority to create legal rights by statute, that “does

not mean that a plaintiff automatically satisfies the injury-in-fact requirement

whenever a statute grants a person a statutory right and purports to authorize that

person to sue to vindicate that right”).18 As a result, plaintiff does not have the right

to assert a claim against defendants on the basis of any of the statutory provisions

mentioned in the dissent.

¶ 64 Aside from this fundamental procedural defect in its argument, plaintiff has

failed to explain how the placement of the old courthouse property on the National

Register of Historic Places had the effect of precluding the removal or relocation of

the monument. In the event that plaintiff is seeking to invoke the National Historic

Preservation Act, P.L. 89-665, now codified at 54 U.S.C. 300101 et seq., the only

potentially relevant provision is 54 U.S.C. § 306108, which requires federal agencies,

“prior to the approval of the expenditure of any Federal funds on [any Federal or

federally assisted] undertaking or prior to the issuance of any license, [to] take into

18Unlike claims brought under state law, which do not require a showing of “injury in

fact,” Committee to Elect Dan Forest, ¶ 85, claims brought under federal law are subject to a

traditional “injury-in-fact” requirement, Lujan, 504 U.S. at 560.

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account the effect of the undertaking on any historic property.” According to well-

established federal law, the statutorily required review process “applies by its terms

only to federally funded or federally licensed undertakings.” Nat’l Min. Ass’n v.

Fowler, 324 F.3d 752, 760 (D.C. Cir. 2003) (quoting Sheridan Hist. Ass’n v.

Christopher, 49 F.3d 750, 755 (1995)) (emphasis in Sheridan). In Monumental Task

Committee, Inc. v. Foxx, a federal district court concluded, on facts similar to those at

issue here, that, unless efforts by the City of New Orleans to remove a controversial

monument were “either federally funded or federally licensed, [§ 306108] does not

apply.” 240 F. Supp. 3d 487, 496 (E.D. La. 2017). As a result of the fact that plaintiff

“[has] not [alleged or] argued, let alone presented any evidence, that removal of the

[monument] [was] federally funded, permitted, approved, or licensed,” “[§ 306108] is

inapplicable to the removal of the [monument].” Id. Plaintiff also argues that the

City was required to comply with 36 C.F.R. § 60.15, but that regulation governs only

how properties are removed from the National Register and says nothing about what

happens when the property itself is relocated or even demolished altogether.

¶ 65 Finally, plaintiff’s contention that the monument is a “memorial and war

grave” that is “protected from injury” or destruction under 18 U.S.C. § 1369 lacks

merit given that the relevant statutory provision only applies to a “structure, plaque,

statue, or other monument” that “is located on property owned by, or under the

jurisdiction of, the Federal Government.” 18 U.S.C. § 1369(b)(2) (emphasis added).

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Aside from the fact that plaintiff has not alleged, and the record does not otherwise

reflect any basis for concluding, that the monument is located on federal land, 18

U.S.C. § 1369 is a criminal statute, and “[p]rivate citizens have no standing to

institute a federal criminal prosecution and no power to enforce a criminal statute.”

Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573, 592 (E.D. La. 2016)

(cleaned up); see also Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (holding that

“a private citizen lacks a judicially cognizable interest in the prosecution or

nonprosecution of another”).19 As a result, none of plaintiff’s arguments in reliance

upon various provisions of federal law provide any basis for a determination that

plaintiff has the right to maintain the present action against defendants.

E. Dismissal with Prejudice

¶ 66 Finally, plaintiff argues that the trial court erred by dismissing its amended

complaint with prejudice after ruling that plaintiff lacked standing to maintain a

declaratory judgment action regarding ownership of the monument. In plaintiff’s

view, “[a] dismissal for want of jurisdiction under Rule 12(b)(1) does not constitute an

adjudication on the merits of the case” and “is without prejudice to a plaintiff’s ability

to bring a second action which is factually and legally sufficient to establish

19 Although plaintiff directs our attention to 24 U.S.C. § 279, which authorized the

Secretary of the Army to furnish headstones for unmarked graves, including those of soldiers

who served in the Union and Confederate armies, that statute was repealed in 1973. See

Pub. L. 93-43, § 7(a)(1), (5), (7). In addition, the effect of this provision upon the viability of

plaintiff’s claims is, at best, unclear.

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jurisdiction in the court before which the second action is brought,” citing

Restatement (Second) of Judgments § 19 (1982). In addition, plaintiff argues that

“[a] personal judgment for the defendant for lack of jurisdiction, although valid and

final, does not bar another action by the plaintiff on the same claim,” citing

Restatement (Second) of Judgments § 20 (1982)); Cline, 92 N.C. App. at 257. As a

result, plaintiff concludes that “[a] court cannot make its order an adjudication on the

merits” and dismiss the claim with prejudice “if it lacks the power to decide the merits

of the case in the first place.”

¶ 67 A review of the relevant precedent discloses that both this Court and the Court

of Appeals have held that the absence of standing can be raised in a motion to dismiss

for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6).

See, e.g., Energy Investors Fund, L.P. v. Metric Constructors, Inc., 351 N.C. 331, 337

(2000); Teague v. Bayer AG, 195 N.C. App. 18, 22 (2009). On the other hand, we have

also consistently recognized that standing is a “necessary prerequisite to a court’s

proper exercise of subject matter jurisdiction.” Willomere Cmty. Ass’n, 370 N.C. at

561 (citations and quotation marks omitted); see also Thomas v. Oxendine, 280 N.C.

App. 526, 2021-NCCOA-661, ¶ 18 (observing that “[s]tanding is required to confer

subject matter jurisdiction”) (citing Wellons v. White, 229 N.C. App. 164, 176 (2013));

Apple v. Commercial Courier Exp., Inc., 168 N.C. App. 175, 177 (2005) (noting that,

“[i]f a party does not have standing to bring a claim, a court has no subject matter

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jurisdiction to hear the claim”). In addition, our earlier decisions indicating that the

absence of standing can be asserted by means of a motion to dismiss for failure to

state a claim for which relief can be granted pursuant to Rule 12(b)(6) appear to rest

upon the notion, which we have recently rejected, that standing for purposes of North

Carolina law requires the allegation of an “injury in fact.” See Comm. to Elect Dan

Forest, ¶ 66 (observing that, “in a common law action where actual injury is a

necessary element of the claim, such as negligence, the proper disposition for failure

to allege actual injury or damages is not dismissal for lack of standing, but dismissal

for failure to state a claim upon which relief can be granted”).

¶ 68 “Although the practical consequence of dismissal of a complaint under Rule

12(b)(6) or 12(b)(1) is the same—the case is dismissed—the legal effect is quite

different.” Cline, 92 N.C. App. at 263. In the event that a complaint is dismissed for

failure to state a claim, that decision constitutes a final judgment on the merits for

res judicata purposes and bars the plaintiff from maintaining another action on the

basis of this same claim. Rest. (Second) of Judgments § 19 cmt. d. (1982); Clancy v.

Onslow Cnty., 151 N.C. App. 269, 272 (2002) (noting that “it is well settled in this

State that a dismissal under Rule 12(b)(6) operates as an adjudication on the merits

unless the court specifies that the dismissal is without prejudice” (cleaned up)). On

the other hand, when a complaint is dismissed for lack of subject matter jurisdiction,

that decision does not result in a final judgment on the merits and does not bar

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further action by the plaintiff on the same claim. Rest. (Second) of Judgments § 20

cmt. e.; Street v. Smart Corp., 157 N.C. App. 303, 305 (2003) (observing that “a

dismissal under [Rule 12]b(1) is not on the merits and thus not given res judicata

effect” (cleaned up)).

¶ 69 In this case, the trial court dismissed the amended complaint on the basis of a

determination that, since plaintiff lacked standing, it lacked jurisdiction over the

subject matter of plaintiff’s claims. For the reasons set forth above, the trial court

correctly concluded that plaintiff had failed to allege the infringement of a “legally

enforceable right” sufficient to establish standing for purposes of North Carolina law.

See Comm. to Elect Dan Forest, ¶ 85. Thus, since the trial court lacked subject matter

jurisdiction over plaintiff’s claims, the amended complaint was properly dismissed

pursuant to Rule 12(b)(1). N.C.G.S. § 1A-1, Rule 12(b)(1); Catawba Cnty. ex re.

Rackley v. Loggins, 370 N.C. 83, 87 (2017). In view of the fact that the trial lacked

jurisdiction over the subject matter of plaintiff’s claims, the trial court erred by also

dismissing the amended complaint for failure to state a claim for which relief could

be granted pursuant to Rule 12(b)(6), see Flowers v. Blackbeard Sailing Club, Ltd.,

115 N.C. App. 349, 353 (1994) (vacating that portion of the trial court’s order

dismissing the plaintiff’s complaint with prejudice after affirming the trial court’s

dismissal decision based on lack of subject matter jurisdiction), disc. rev.

improvidently allowed, 340 N.C. 357 (1995), with the Court of Appeals having erred

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as well by affirming the trial court’s decision with respect to that issue. As a result,

we vacate the portion of the trial court’s order dismissing the amended complaint

with prejudice and remand this case to Superior Court, Forsyth County, with

instructions to dismiss the amended complaint without, rather than with, prejudice.

III. Conclusion

¶ 70 Thus, we reaffirm our longstanding rule that a plaintiff must establish

standing to bring an action pursuant to the Declaratory Judgment Act. See Goldston,

at 361 N.C. at 33. As this Court held long ago, the Declaratory Judgment Act “does

not license litigants to fish in judicial ponds for legal advice.” Lide v. Mears, 231 N.C.

111, 117 (1949). For the reasons set forth above, we hold that the trial court did not

err by dismissing the amended complaint for lack of standing. On the other hand, we

further hold that the trial court erred by dismissing the amended complaint with,

rather than without, prejudice. As a result, we affirm the Court of Appeals’ decision,

in part; reverse the Court of Appeals’ decision, in part; and remand this case to

Superior Court, Forsyth County, for further proceedings not inconsistent with this

opinion.

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.

Chief Justice NEWBY concurring in the result only.

¶ 71 Plaintiff United Daughters of the Confederacy, North Carolina Division, Inc.,

filed an amended complaint on 6 February 2019 against the City of Winston-Salem

(the City), the County of Forsyth (the County), and Winston Courthouse, LLC

challenging the City’s decision to remove a monument from Courthouse Square in

Winston-Salem, North Carolina. In its amended complaint, plaintiff alleges that it is

a nonprofit corporation organized under the laws of North Carolina, it is authorized

to do business in the state, and it maintains its principal place of business in Wake

County, North Carolina. Plaintiff describes its organization in the amended

complaint solely with this language and does not identify who is involved in its

organization or indicate where its members reside.1

¶ 72 In its amended complaint, plaintiff alleges that the City declared the

monument a public nuisance and planned to move the monument from Courthouse

Square. Plaintiff alleges that the removal process proposed by the City violates

various rights of plaintiff, including freedom of speech, due process, and equal

protection and constitutes an unlawful seizure. Plaintiff also claims the City’s actions

“violate . . . [N.C.G.S.] Chapter 100, Section 100, et seq, the Protection of Monuments,

Memorial[s,] and Works of Art Act” and infringe upon the rights, duties, privileges,

1 Plaintiff does identify its local chapter, the James B. Gordon Chapter #211, which is

based out of Winston-Salem, North Carolina, in its amended complaint. The local chapter,

however, filed a notice of voluntary dismissal from the present case on 1 May 2019, prior to

entry of the trial court’s order, and is not a party to this appeal.

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obligations, liabilities, and immunities of the County and the United States

Department of the Interior.

¶ 73 In its amended complaint, plaintiff asks for a declaratory judgment to

determine the parties’ rights, duties, privileges, obligations, liabilities, and

immunities with respect to the monument. Plaintiff also requests a declaratory

judgment to determine whether the City misapplied N.C.G.S. § 160A-193 and City

Ordinance 62-3(b) in declaring the monument a public nuisance. Additionally,

plaintiff seeks a preliminary injunction enjoining defendants from altering,

removing, or causing damage to the monument prior to a decision in the case. Because

the City has since removed the monument from Courthouse Square, however, only

plaintiff’s request for a declaratory judgment remains.

¶ 74 The task here is to determine whether the allegations in plaintiff’s amended

complaint are sufficient to establish standing to seek a declaratory judgment.

Standing is a necessary prerequisite to a court’s proper exercise of subject matter

jurisdiction, Taylor v. City of Raleigh, 290 N.C. 608, 620–21, 227 S.E.2d 576, 583–84

(1976), and standing is required to seek a declaratory judgment, see Goldston v. State,

361 N.C. 26, 33, 637 S.E.2d 876, 881 (2006) (holding that the plaintiffs established

standing before “consider[ing] the form of relief sought by [the] plaintiffs, who [had]

filed a declaratory judgment action”). “The ‘gist of the question of standing’ is whether

the party seeking relief has ‘alleged such a personal stake in the outcome of the

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controversy as to assure that concrete adverseness which sharpens the

presentation[s] of issues upon which the court so largely depends for illumination of

difficult constitutional questions.’ ” Willowmere Cmty. Ass’n v. City of Charlotte, 370

N.C. 553, 556–57, 809 S.E.2d 558, 561 (2018) (alteration in original) (quoting Stanley

v. Dep’t of Conservation & Dev., 284 N.C. 15, 28, 199 S.E.2d 641, 650 (1973)). “Until

a party has a real and vested interest in the subject matter of a lawsuit, an action

will not lie.” Pierson v. Buyher, 330 N.C. 182, 186, 409 S.E.2d 903, 906 (1991).

¶ 75 Here the allegations of plaintiff’s amended complaint fail to establish standing.

Although plaintiff identifies itself as a nonprofit corporation doing business in North

Carolina, plaintiff fails to allege who comprises its organization and where its

members live. Plaintiff does not identify any individual members of its organization

in its amended complaint or allege the requirements for membership. Further, there

is no indication in the amended complaint that any members of plaintiff’s

organization reside in Winston-Salem or Forsyth County. Without more information

regarding the membership of the organization and where its members reside, plaintiff

has failed to demonstrate that its organization or its members have any interest in

the monument that is the subject of this case. Moreover, because plaintiff failed to

include sufficient allegations in its amended complaint regarding its membership and

organizational structure, plaintiff cannot establish taxpayer standing or

associational standing. See Branch v. Bd. of Educ., 233 N.C. 623, 626, 65 S.E.2d 124,

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126 (1951) (“[W]here a plaintiff undertakes to bring a taxpayer’s suit . . . , his

complaint must disclose that he is a taxpayer of the [political] subdivision.”); see also

River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 130, 388 S.E.2d 538, 555 (1990)

(holding that a litigant may bring suit on an associational standing theory if “its

members would otherwise have standing to sue in their own right” (quoting Hunt v.

Wash. State Apple Advert. Comm., 432 U.S. 333, 343 (1977))). Further, plaintiff does

not allege ownership or a legal interest in the monument.

¶ 76 Thus, the bare allegations set forth in plaintiff’s amended complaint are

insufficient to establish standing. See Comm. to Elect Dan Forest v. Emps. Pol. Action

Comm., 376 N.C. 558, 2021-NCSC-6, ¶ 82 (requiring “a person [to] allege[ ] the

infringement of a legal right . . . [for] the legal injury itself [to] give[ ] rise to

standing”). As such, the Court lacks subject matter jurisdiction over plaintiff’s claims.

Because there is no subject matter jurisdiction over plaintiff’s claims, dismissal of

plaintiff’s amended complaint without prejudice is proper. Therefore, I agree with the

majority that the proper disposition is dismissal without prejudice. Accordingly, I

concur in the result only.

Justices BERGER and BARRINGER join in this concurring opinion.