IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA20-533
Filed 02 May 2023
Chatham County, No. 19 CVS 809
BARBARA CLARK PUGH; GENE TERRELL BROOKS; THOMAS HENRY CLEGG; THE WINNIE DAVIS CHAPTER 259 OF THE UNITED DAUGHTERS OF THE CONFEDERACY, Plaintiffs,
v.
KAREN HOWARD; MIKE DASHER; DIANNA HALES; JIM CRAWFORD; and ANDY WILKIE, in their official capacities as members of the Board of County Commissioners of Chatham County, North Carolina, Defendants,
and
CHATHAM FOR ALL and WEST CHATHAM BRANCH 5378 of the NAACP, Defendant-Intervenors.
Appeal by plaintiffs from order entered 10 December 2019 by Judge Susan E.
Bray in Chatham County Superior Court. Heard in the Court of Appeals 21 February
2023.
James A. Davis for plaintiffs-appellants.
Poyner Spruill LLP, by J. Nicholas Ellis and Dylan J. Castellino, for defendants-appellees.
Kilpatrick Townsend & Stockton LLP, by Joseph S. Dowdy and Phillip A. Harris, Jr., for defendants-intervenors-appellees.
ZACHARY, Judge.
Plaintiffs Barbara Clark Pugh, Gene Terrell Brooks, Thomas Henry Clegg, and
the Winnie Davis Chapter 259 of the United Daughters of the Confederacy (“the PUGH V. HOWARD
Opinion of the Court
UDC”) (collectively, “Plaintiffs”) appeal from the trial court’s order dismissing their
complaint with prejudice pursuant to Rules 12(b)(1) and 12(b)(6) of the North
Carolina Rules of Civil Procedure. We affirm in part, vacate in part, and remand the
court’s order for the reasons enunciated by our Supreme Court in United Daughters
of the Confederacy v. City of Winston-Salem, 383 N.C. 612, 881 S.E.2d 32 (2022).
Background
On 23 August 1907, the UDC erected and installed a 27-foot-tall Confederate
monument (the “Monument”) in a public ceremony in front of the Chatham County
Courthouse to “honor th[e] individuals who had served in the armed forces of the
Confederate States of America during the Civil War[.]” The Monument remained in
front of the Courthouse until 2019.
On 19 August 2019, the Chatham County Board of County Commissioners (the
“County Commissioners”) voted to request that the UDC “remove and relocate” the
Monument from the Courthouse grounds, at Chatham County’s expense, by 1
November 2019. The County Commissioners informed the UDC that if it refused to
remove the Monument, then Chatham County would do so.
Plaintiffs filed a complaint against the County Commissioners on 23 October
2019 in Chatham County Superior Court, seeking a declaratory judgment, a
temporary restraining order, and a preliminary injunction. In their complaint,
Plaintiffs alleged that the Monument was Chatham County property, in that
Chatham County had accepted the UDC’s dedication of the Monument and had
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“specifically authorized” its placement at the Courthouse square. Plaintiffs further
alleged that the Monument was an “object of remembrance” that could “only be
relocated, whether temporarily or permanently,” in accordance with the provisions of
N.C. Gen. Stat. § 100-2.1, and that the County Commissioners’ vote to remove the
Monument was a “proscriptive action” in violation of the statute. The same day,
Plaintiffs filed a separate motion for a temporary restraining order to prevent the
County Commissioners “from attempting to remove, alter, disassemble, or destroy
the . . . Monument[.]” On 1 November 2019, the trial court granted Plaintiffs’ motion,
issuing a temporary restraining order prohibiting the County Commissioners from
“dismantling, removing, destroying and/or disturbing in any manner or fashion the
Monument”; the order was set to expire on 8 November 2019.
Plaintiffs filed a separate motion for a preliminary injunction on 4 November
2019, requesting that the court “restrain[ ] and enjoin[ the County Commissioners]
from taking affirmative action to remove or relocate the [M]onument prior to a full
adjudication of the respective rights and obligations of the [p]arties[.]” However, the
trial court was unable to hold a hearing on Plaintiffs’ motion for a preliminary
injunction until 13 November 2019, “[d]ue to other business of the [c]ourt”;
consequently, the court extended its temporary restraining order until 13 November
2019.
Meanwhile, on 1 November 2019, the County Commissioners filed a motion to
dismiss Plaintiffs’ complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the North
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Carolina Rules of Civil Procedure. On 5 November 2019, the County Commissioners
filed an amended motion to dismiss on the same grounds, asserting, inter alia, that
the Monument belonged to the UDC and that the County had granted it a license “to
erect a monument on the [Courthouse] square.” The County Commissioners further
asserted that Plaintiffs lacked standing to initiate the instant action under either the
law of taxpayer standing or as a private right of action pursuant to N.C. Gen. Stat.
§ 100-2.1.
On 4 November 2019, the West Chatham Branch of the National Association
for the Advancement of Colored People (“the NAACP”) and Chatham for All filed a
motion to intervene as third-party defendants pursuant to Rule 24 of the North
Carolina Rules of Civil Procedure. That same day, they also filed a motion to dismiss
Plaintiffs’ complaint pursuant to Rules 12(b)(1) and 12(b)(6), maintaining, inter alia,
that Plaintiffs lacked standing to bring the instant action. On 13 November 2019, the
trial court granted the NAACP and Chatham for All’s motion to intervene.
Plaintiffs’ motion for a preliminary injunction came on for hearing in Chatham
County Superior Court on 13 November 2019, and was denied by the trial court’s
order entered on 22 November 2019. The court also determined that the temporary
restraining order filed on 1 November 2019 “ha[d] expired and [wa]s of no further
effect[.]”
Both motions to dismiss came on for hearing on 2 December 2019. Following
the hearing, the trial court granted the motions to dismiss by order entered on 10
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December 2019. The court determined that “Plaintiffs lack standing to bring this
action and Plaintiffs’ [c]omplaint fails to state a claim upon which relief can be
granted”; having so concluded, the trial court dismissed Plaintiffs’ complaint with
prejudice.
Plaintiffs timely appealed.
Discussion
On appeal, Plaintiffs argue (1) that the trial court erred by dismissing their
complaint on the ground that Plaintiffs lacked standing, and that the court thus
lacked subject-matter jurisdiction; (2) that the trial court erred by dismissing
Plaintiffs’ complaint with prejudice; (3) that the trial court abused its discretion by
“refusing to consider the brief and affidavit tendered by Plaintiffs in opposition to [the
County Commissioners’] amended motion to dismiss”; and (4) that the trial court
erred by granting Chatham for All and the NAACP’s motion to intervene.
I. Standard of Review
Our appellate courts review “a trial court’s decision to grant or deny a motion
to dismiss for lack of standing using a de novo standard of [re]view, under which it
views the allegations as true and the supporting record in the light most favorable to
the non-moving party[.]” United Daughters of the Confederacy, 383 N.C. at 624, 881
S.E.2d at 43 (citation and internal quotation marks omitted).
“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
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information outside the scope of the pleadings in addition to the allegations set out
in the complaint.” Id.
II. Analysis
On appeal, Plaintiffs advance a number of arguments in support of their
contention that they “have standing to seek a declaratory judgment determining the
respective rights and obligations of the [p]arties with regard to the . . . Monument.”
We address these arguments separately.
A. Standing
“[T]he object of the declaratory judgment is to permit determination of a
controversy before obligations are repudiated or rights are violated.” Perry v. Bank of
Am., N.A., 251 N.C. App. 776, 779, 796 S.E.2d 799, 802 (2017) (citation omitted); see
also Lide v. Mears, 231 N.C. 111, 118, 56 S.E.2d 404, 409 (1949) (explaining that
declaratory judgments “declar[e] and establish[ ] the respective rights and obligations
of adversary parties in cases of actual controversies without either of the litigants
being first compelled to” act in a way that may result in a violation of the other party’s
rights or a repudiation of a party’s own obligations).
A plaintiff may maintain an action pursuant to the Declaratory Judgment Act,
N.C. Gen. Stat. § 1-253 et seq. (2021), only insofar “as it affects the civil rights, status
and other relations in the present actual controversy between parties[,]” Chadwick v.
Salter, 254 N.C. 389, 395, 119 S.E.2d 158, 162 (1961) (citation and internal quotation
marks omitted). “[T]he mere filing of a declaratory judgment is not sufficient, on its
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own, to grant a plaintiff standing, with it being necessary for a party to establish
standing as a prerequisite for the assertion of a declaratory judgment claim[.]” United
Daughters of the Confederacy, 383 N.C. at 629, 881 S.E.2d at 46 (citation and internal
quotation marks omitted).
“Standing to sue means simply that the party has a sufficient stake in an
otherwise justiciable controversy to obtain judicial resolution of that controversy.”
Town of Ayden v. Town of Winterville, 143 N.C. App. 136, 140, 544 S.E.2d 821, 824
(2001) (citation and internal quotation marks omitted). “Standing, which is properly
challenged by a Rule 12(b)(1) motion to dismiss, is a necessary prerequisite to a
court’s proper exercise of subject[-]matter jurisdiction. If a party does not have
standing to bring a claim, a court has no subject[-]matter jurisdiction to hear the
claim.” Wilson v. Pershing, LLC, 253 N.C. App. 643, 650, 801 S.E.2d 150, 156 (2017)
(citations and internal quotation marks omitted); see also United Daughters of the
Confederacy, 383 N.C. at 649, 881 S.E.2d at 59 (recognizing that “standing is a
necessary prerequisite to a court’s proper exercise of subject[-]matter jurisdiction”
(citation and internal quotation marks omitted)).
1. Taxpayer Standing
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Plaintiffs assert that they have taxpayer standing, giving them “the right to
seek equitable and declaratory relief when governing authorities are preparing to put
property dedicated to the public to an unauthorized use.”1
It is well settled that a taxpayer may bring an action “on behalf of a public
agency or political subdivision for the protection or recovery of the money or property
of the agency or subdivision in instances where the proper authorities neglect or
refuse to act.” Peacock v. Shinn, 139 N.C. App. 487, 491, 533 S.E.2d 842, 845 (citation
and internal quotation marks omitted), appeal dismissed and disc. review denied, 353
N.C. 267, 546 S.E.2d 110 (2000). However, “where a plaintiff undertakes to bring a
taxpayer’s suit . . . , his complaint must disclose that he is a taxpayer of the agency
or subdivision,” and allege facts that adequately establish either: (1) 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 (2)
that “a demand on such authorities would be useless.” United Daughters of the
Confederacy, 383 N.C. at 630–31, 881 S.E.2d at 47–48 (citations omitted).
In the present case, Plaintiffs did not make the requisite allegations to support
their claim of taxpayer standing. To be sure, the complaint alleges that each
1 To the extent that Plaintiffs assert the issue of associational standing as members of the UDC, Plaintiffs advance no reason or argument in support of it in their brief. Accordingly, this issue is deemed abandoned. See N.C.R. App. P. 28(b)(6); see also, e.g., Wilson, 253 N.C. App. at 650, 801 S.E.2d at 156 (concluding that where an appellant’s brief “does not contain any substantive arguments on [an issue presented], this issue has been abandoned”).
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individual Plaintiff was a taxpayer of Chatham County; nonetheless, it fails to allege
that “there ha[d] 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 [have] be[en] useless.” Id. at
631, 881 S.E.2d at 47–48 (citations and internal quotation marks omitted). Because
Plaintiffs failed to allege all of the required elements, they failed to establish that
they had taxpayer standing. This argument is therefore overruled.
2. Standing Under Section 153A-140
Plaintiffs next argue that “Defendants must abide by the clear and unequivocal
mandate of law pertaining to structures deemed to be [a] threat to public health and
safety before undertaking to remove them.” According to Plaintiffs, because
Defendants failed to follow the provisions of N.C. Gen. Stat. § 153A-140, Plaintiffs
“have been ‘injuriously affected’ by the course of conduct initiated by [the] County
and . . . they have the right to seek redress from the courts.”
Plaintiffs cite Monroe v. City of New Bern, 158 N.C. App. 275, 580 S.E.2d 372,
disc. review denied, 357 N.C. 461, 586 S.E.2d 93 (2003), in support of their argument
that N.C. Gen. Stat. § 153A-140 provided them with the right to notice and an
opportunity to be heard before the County removed the Monument. In Monroe, this
Court held that before a city may demolish a dwelling, the procedures outlined in
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Chapter 160A, Article 192 require that the city provide the owner of the dwelling with
notice and an opportunity to be heard. 158 N.C. App. at 278, 580 S.E.2d at 375.
We find Monroe instructive, in that § 160A-193—which governs the abatement
of public health nuisances in cities—and § 153A-140—which governs the abatement
of public health nuisances in counties—are both subject to the procedures outlined in
Chapter 160D, Article 12. Compare N.C. Gen. Stat. § 160A-193, with id. § 153A-140;
see also id. § 160D-101(c). Section 160D-1203(2), which regulates the demolition of a
“dwelling” deemed “unfit for human habitation,” requires that a local authority
provide notice and opportunity to the owner of the dwelling before demolition. Id.
§ 160D-1203(2); see also United Daughters of the Confederacy, 383 N.C. at 646, 881
S.E.2d at 57. As such, a party seeking notice and opportunity to be heard regarding
a dwelling’s demolition must establish that the party meets the statutory definitions
of “owner” or “part[y] in interest”—that is, that the party is either an owner: “the
holder of the title in fee simple . . . [or a] mortgagee of record[,]” or that the party
meets one of the statute’s broader categories deemed “parties of interest,” which
2 Although Chapter 160A, Article 19 (N.C. Gen. Stat. § 160A-441 et seq.) has been repealed and recodified in Chapter 160D, Article 12 (N.C. Gen. Stat. § 160D-1201 et seq.) since our Court’s decision in Monroe, the provisions remained largely 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; United Daughters of the Confederacy, 383 N.C. at 645 n.17, 881 S.E.2d at 57 n.17. In light of Chapter 160A’s recodification, as well as “the fact that the new statute is retroactively applicable,” we conclude that N.C. Gen. Stat. § 160D-1201 et seq. governs here. United Daughters of the Confederacy, 383 N.C. at 645 n.17, 881 S.E.2d at 57 n.17; see also An Act to Complete the Consolidation of Land-Use Provisions Into One Chapter of the General Statutes, S.L. 2020-25, 2020 N.C. Sess. Law 152.
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include “[a]ll individuals, associations, and corporations that have interests of record
in a dwelling and any that are in possession of a dwelling.” N.C. Gen. Stat. § 160D-
1202(1)–(2); see also United Daughters of the Confederacy, 383 N.C. at 646, 881 S.E.2d
at 57.
Our Supreme Court recently applied the reasoning in Monroe to the facts
presented in United Daughters of the Confederacy, a case with facts quite similar to
those in the case at bar. There, the plaintiff argued that the provisions of Chapter
160D, Article 12 required the city of Winston-Salem to provide the plaintiff with
notice and an opportunity to be heard regarding the city’s planned removal of a
Confederate monument. United Daughters of the Confederacy, 383 N.C. at 644, 881
S.E.2d at 56. According to the plaintiff, “if it were determined to be the owner of the
monument, it would necessarily follow that [the] plaintiff ha[d] standing to defend
the placement of the monument on the courthouse property, as well as to invoke the
arguments that the monument d[id] not constitute a public nuisance under” N.C.
Gen. Stat. § 160A-193. Id. (internal quotation marks omitted). Our Supreme Court
disagreed, concluding that because the plaintiff “did not allege in the amended
complaint that it had any proprietary or contractual interest in the monument or that
it ha[d] an interest of record or [wa]s in possession of the monument,” the plaintiff
was “simply not a member of the class of persons entitled to notice and an opportunity
to be heard under” the statute. Id. at 646, 881 S.E.2d at 57 (citation and internal
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In the case at bar, Plaintiffs similarly failed to plead any facts that tend to
establish that they had any possessory, proprietary, or contractual interest in the
Monument; indeed, Plaintiffs maintain that the Monument is County property. In
that Plaintiffs have not sufficiently pleaded sufficient facts to establish that they
meet the statutory definitions of an “owner” or a “part[y] in interest[,]” see N.C. Gen.
Stat. § 160D-1202(1)–(2), Plaintiffs cannot demonstrate that they are “member[s] of
the class of persons entitled to notice and an opportunity to be heard under” N.C.
Gen. Stat. § 153A-140. United Daughters of the Confederacy, 383 N.C. at 646, 881
S.E.2d at 57.
Accordingly, Plaintiffs have failed to establish that they have standing
pursuant to N.C. Gen. Stat. § 153A-140.
3. Standing Under Section 100-2.1
Plaintiffs next argue that they have standing pursuant to N.C. Gen. Stat.
§ 100-2.1, in that the Monument is County property and is therefore subject to the
removal procedures outlined in N.C. Gen. Stat. § 100-2.1. Plaintiffs maintain that by
“funding and erecting” the Monument, the UDC “made a dedication of the statute to
[the] County, and the [C]ounty expressly accepted that dedication”; upon its
placement on County property, the Monument “became real property as a fixture[.]”
Thus, argue Plaintiffs, because the Monument is County property, “any action
contemplated or executed with regard to [the Monument’s] location is subject to the
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provisions of” N.C. Gen. Stat. § 100-2.1. In light of our Supreme Court’s holding in
United Daughters of the Confederacy, we must disagree.
Section 100-2.1 provides the circumstances and manner under which a State-
owned “monument, memorial, or work of art” may be removed and relocated:
(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 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.
N.C. Gen. Stat. § 100-2.1(a)–(b).
Plaintiffs have advanced a private action under § 100-2.1. “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.” United Daughters of the
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Confederacy, 383 N.C. at 637, 881 S.E.2d at 52 (citation omitted). “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 cause of action.” Id. (citation and
internal quotation marks omitted).
United Daughters of the Confederacy presented similar issues regarding the
application of N.C. Gen. Stat. § 100-2.1 as those arising in the instant case. There,
the plaintiff alleged in its complaint that (1) “members of its local chapter [of the
United Daughters of the Confederacy] raised the funds necessary to design, build,
and install the [Confederate] monument from private sources”; (2) the plaintiff
“dedicated the monument to Forsyth County and its citizens”; and (3) “the Forsyth
County Commissioners expressly permitted the monument to be placed on land which
the [c]ounty owned.” Id. at 636, 881 S.E.2d at 51. The plaintiff maintained that the
monument was therefore Forsyth County property, in that the Forsyth County
Commissioners accepted the plaintiff’s dedication by placing the monument on public
property. Id. The plaintiff further argued 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 [c]ounty sold the property” to a private entity. Id.
Thus, according to the plaintiff, it had standing to seek a declaratory judgment and
a preliminary injunction against the County Commissioners pursuant to N.C. Gen.
Stat. § 100-2.1. Id.
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Our Supreme Court rejected this argument: “We are unable to identify
anything in [N.C. Gen. Stat.] § 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 . . . .” Id. at 638, 881 S.E.2d at 52 (noting “[t]he absence of
explicit language authorizing the assertion of a private right of action” in the statute).
Therefore, the Court concluded, N.C. Gen. Stat. § 100-2.1 did not confer “any legal
rights upon [the] plaintiff sufficient to give rise to any sort of . . . valid legal claim.”
Id. at 637, 881 S.E.2d at 52.
Moreover, nor did the statute implicitly authorize a private right of action. Our
Supreme Court reasoned that “nothing in [N.C. Gen. Stat.] § 100-2.1 requires action
from a party with which that party has failed to comply”; instead, the statute
“prohibits the removal or relocation of certain specified objects that are owned by the
State or located on public property.” Id. at 638, 881 S.E.2d at 52 (citation and internal
quotation marks omitted). And “even if [N.C. Gen. Stat.] § 100-2.1 could be
interpreted to implicitly authorize the assertion of a private right of action,” the Court
concluded, “nothing in the relevant statutory language or the allegations contained
in the amended complaint suggest[ed] that [the] plaintiff would be in the class of
persons on which the statute confers the right.” Id. (citation and internal quotation
marks omitted).
Finally, the Court determined that N.C. Gen. Stat. § 100-2.1 did not have “any
bearing upon the proper resolution of th[e] case given the absence of any allegation
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in the amended complaint that the monument [wa]s ‘owned by the State.’ ” Id. at 641,
881 S.E.2d at 54. “[E]ven if the [c]ounty own[ed] the monument, that fact would not
convert the monument into State property subject to” § 100-2.1(a) because “the
General Assembly has specifically authorized counties to independently acquire,
maintain, and dispose of real or personal property,” and “the North Carolina
Constitution authorizes counties and municipalities to own property independently
of the State.” Id. at 642, 881 S.E.2d at 55; see also N.C. Gen. Stat. §§ 153A-158, -169,
-176; N.C. Const. art. V, § 2.
Here, as in United Daughters of the Confederacy, Plaintiffs alleged in their
complaint that the Monument was property subject to § 100-2.1 because “the
[M]onument was accepted as a gift” by the County, as evidenced by the fact that the
Monument’s “placement at the Chatham County Courthouse was specifically
authorized and directed by the Chatham County Board of County Commissioners[.]”
See United Daughters of the Confederacy, 383 N.C. at 636, 881 S.E.2d at 51. Plaintiffs
also alleged that the County Commissioners “act[ed] in a manner in contravention of
[their] constitutional or statutory authority” when they voted to remove the
Monument in violation of the provisions of N.C. Gen. Stat. § 100-2.1. According to
their complaint, Plaintiffs “have legitimate and cognizable interests in [e]nsuring
that [the] County does not engage in activities or enact local legislation . . . which are
unlawful[.]”
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Plaintiffs argue on appeal that these allegations were sufficient to establish
their standing pursuant to N.C. Gen. Stat. § 100-2.1. We are bound by precedent to
disagree.
As our Supreme Court made plain in United Daughters of the Confederacy,
N.C. Gen. Stat. § 100-2.1 does not “explicitly authorize[ ] the assertion of a private
cause of action for the purpose of enforcing that statutory provision.” Id. at 638, 881
S.E.2d at 52. Furthermore, even if N.C. Gen. Stat. § 100-2.1 implicitly authorized a
private right of action, Plaintiffs’ allegations, like those in United Daughters of the
Confederacy, are inadequate to support that Plaintiffs “would be in the class of
persons on which the statute confers the right.” Id. (citation and internal quotation
marks omitted); see also Charles Stores Co. v. Tucker, 263 N.C. 710, 717, 140 S.E.2d
370, 375 (1965) (“Only one who is in immediate danger of sustaining a direct injury
from legislative action may assail the validity of such action. It is not sufficient that
he has merely a general interest common to all members of the public.”). Here,
Plaintiffs merely alleged a general interest in lawful government action—an interest
common to all members of the public.
Moreover, N.C. Gen. Stat. § 100-2.1 has no “bearing upon the proper resolution
of this case given the absence of any allegation in the . . . complaint that the
[M]onument is ‘owned by the State.’ ” United Daughters of the Confederacy, 383 N.C.
at 641, 881 S.E.2d at 54.
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Therefore, as in United Daughters of the Confederacy, Plaintiffs failed to allege
facts sufficient to assert a private right of action pursuant to N.C. Gen. Stat. § 100-
2.1, and the trial court appropriately dismissed their complaint for lack of standing.
4. Standing Arising out of Legal or Factual Injury
Finally, Plaintiffs assert that they have standing because they “merely seek to
defend themselves from an onslaught which they did not initiate and which raises
serious questions about the ability of the government to decide for itself free of judicial
review what it can do to the exclusion of the customary rule of law.”
Here, Plaintiffs assert an argument nearly identical to that advanced by the
plaintiff in United Daughters of the Confederacy—that “[t]o deny that [the UDC] 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.” The only allegation in Plaintiffs’
complaint that could be interpreted as pertaining to whether they had sustained a
legal or factual injury arising from the County’s conduct was that Plaintiffs “have
legitimate and cognizable interests in [e]nsuring [the] County does not engage in
activities or enact local legislation . . . which are unlawful[.]” However, this allegation
fails to articulate how the County’s actions resulted in a cognizable legal or factual
injury to Plaintiffs. Furthermore, like the plaintiff in United Daughters of the
Confederacy, Plaintiffs contended in their complaint that they dedicated the
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Monument to the County, and thus, they disclaimed any “proprietary or contractual
interest in the [M]onument.” Id. at 629, 881 S.E.2d at 47.
Plaintiffs were required to allege additional facts “to demonstrate that [they]
ha[d] sustained a legal or factual injury arising from [D]efendants’ actions[.]” Id. at
629, 881 S.E.2d at 46. Because they did not do so, Plaintiffs failed to establish their
standing to maintain the declaratory judgment action. Id.; see also Comm. to Elect
Dan Forest v. Employees Political Action Comm., 376 N.C. 558, 609–10, 853 S.E.2d
698, 734 (2021). Accordingly, we must reject Plaintiffs’ argument.
B. Dismissal with Prejudice
Plaintiffs next argue that the trial court erred by dismissing their complaint
with prejudice because a “court cannot dismiss a complaint with prejudice if it has
held that it lacks jurisdiction over the proceeding.” We agree.
Our appellate courts have historically held that a party may challenge the
plaintiff’s standing to bring an action in a motion to dismiss pursuant to Rule 12(b)(6).
See, e.g., Energy Investors Fund, L.P. v. Metric Constructors, Inc., 351 N.C. 331, 337,
525 S.E.2d 441, 445 (2000); Teague v. Bayer AG, 195 N.C. App. 18, 22, 671 S.E.2d
550, disc. review denied, 363 N.C. 381, ___ S.E.2d ___ (2009). This precedent
“appear[ed] to rest upon the notion . . . that standing for purposes of North Carolina
law requires the allegation of an ‘injury in fact.’ ” United Daughters of the
Confederacy, 383 N.C. at 649, 881 S.E.2d at 60. However, our Supreme Court recently
rejected the view that a plaintiff must allege an “injury in fact” to establish standing,
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concluding that alleging either a factual injury or an infringement of a legal right is
sufficient to confer standing under North Carolina law. Comm. to Elect Dan Forest,
376 N.C. at 609, 853 S.E.2d at 734.
Accordingly, when a trial court determines that it lacks subject-matter
jurisdiction over a matter because of the plaintiff’s failure to establish standing, the
court may not dismiss the matter with prejudice pursuant to Rule 12(b)(6). United
Daughters of the Confederacy, 383 N.C. at 650, 881 S.E.2d at 60. Rather, in such
circumstances, the matter is properly dismissed without prejudice pursuant to Rule
12(b)(1). See id.; Wilson, 253 N.C. App. at 650, 801 S.E.2d at 156; N.C. Gen. Stat.
§ 1A-1, Rule 12(b)(1).
In the instant case, the trial court granted Defendants’ motions to dismiss
under Rules 12(b)(1) and 12(b)(6) and dismissed the complaint with prejudice. As
explained above, the trial court correctly concluded that Plaintiffs had failed to allege
an infringement of a factual or legal right sufficient to establish standing, and
therefore, it appropriately dismissed the complaint pursuant to Rule 12(b)(1). United
Daughters of the Confederacy, 383 N.C. at 650, 881 S.E.2d at 60. However, as in
United Daughters of the Confederacy, having properly determined that it lacked
subject-matter jurisdiction over the matter, the trial court should have dismissed the
matter without prejudice pursuant to Rule 12(b)(1). See id. As a result, “we vacate
the portion of the trial court’s order dismissing the . . . complaint with prejudice and
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remand this case to [Chatham County Superior Court], with instructions to dismiss
the . . . complaint without, rather than with, prejudice.” Id.
C. Refusal to Consider Plaintiffs’ Untimely Served Documents
Finally, Plaintiffs argue that the trial court “abused its discretion in refusing
to consider the brief and affidavit tendered by Plaintiffs in opposition to Defendants’
amended motion to dismiss.” We disagree.
Rule 6 of the North Carolina Rules of Civil Procedure provides, in relevant
part, that “[i]f the opposing affidavit is not served on the other parties at least two
days before the hearing on the motion, the court may . . . proceed with the matter
without considering the untimely served affidavit[.]” N.C. Gen. Stat. § 1A-1, Rule
6(d). Rule 5 contains a similar provision concerning the service of briefs. See id. § 1A-
1, Rule 5(a1) (“If the brief or memorandum is not served on the other parties at least
two days before the hearing on the motion, the court may . . . proceed with the matter
without considering the untimely served brief or memorandum . . . .”).
Here, during the hearing on Defendants’ motion to dismiss, Plaintiffs’ counsel
offered the trial court the affidavit of Plaintiff Pugh, as well as Plaintiffs’ brief
opposing Defendants’ motion. Counsel for Defendants informed the court that they
had not received the affidavit or Plaintiffs’ brief until the day of the hearing. The trial
court then declined to consider the affidavit, and orally rendered its ruling from the
bench without considering Plaintiffs’ brief. Because Plaintiffs served their affidavit
and brief on Defendants less than two days before the hearing, the trial court was
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well within its discretionary authority to “proceed with the matter without
considering the” documents. Id. §§ 1A-1, Rule 5(a1), 6(d). Therefore, Plaintiffs’
argument is overruled.
Conclusion
For the foregoing reasons, we conclude that the trial court appropriately
determined that Plaintiffs lacked standing to initiate this action. We thus affirm in
part the trial court’s order dismissing Plaintiffs’ complaint for lack of subject-matter
jurisdiction. However, because the trial court improperly dismissed the complaint
with prejudice, we vacate the order in part and remand this matter to the trial court
to dismiss the complaint without prejudice. In light of our disposition, we need not
address Plaintiffs’ remaining argument.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED.
Judges FLOOD and RIGGS concur.
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