Cheatham v. Town of Taylortown ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1057
Filed: 1 August 2017
Moore County, No. 16 CVS 374
ADAM T. CHEATHAM, SR., Plaintiff,
v.
TOWN OF TAYLORTOWN, NORTH CAROLINA, A MUNICIPAL CORPORATION,
Defendant.
Appeal by Adam T. Cheatham, Sr. from an order allowing defendant’s motion
to dismiss entered 18 April 2016 by Judge James M. Webb in Moore County Superior
Court. Heard in the Court of Appeals 3 May 2017.
Adam T. Cheatham, Sr., pro se.
The Law Offices of William C. Morgan, Jr., PLLC, by William Morgan, for
defendant-appellee.
MURPHY, Judge.
Adam T. Cheatham, Sr. (“Cheatham”) appeals from the trial court’s order
allowing Town of Taylortown’s (“Taylortown”) motion to dismiss for lack of subject
matter jurisdiction. On appeal, he contends that the trial court erred by granting the
motion to dismiss for lack of subject matter jurisdiction because Taylortown’s
attempts to enforce its minimum housing standards: (1) violated his property rights;
(2) obstructed justice; and (3) deprived him of procedural due process. We disagree
that the trial court erred to the extent Cheatham’s claims arise from enforcement
CHEATHAM V. TOWN OF TAYLORTOWN
Opinion of the Court
actions made pursuant to Taylortown’s Minimum Housing Ordinance (“the
Ordinance”) because Cheatham failed to exhaust his administrative remedies as to
these claims before filing his complaint. However, we agree with Cheatham that the
dismissal was not proper as to his claims that arose prior to the adoption of the
Ordinance. The trial court incorrectly determined all of Cheatham’s claims arose
from actions taken pursuant to the Ordinance. We reverse and remand for the trial
court to reconsider whether subject matter jurisdiction exists as to Cheatham’s claims
accruing prior to the Ordinance’s adoption.
Background
Sometime in early 2014, Taylortown affixed a “condemned” sign to the home
at 128 Burch Drive in Taylortown (“the Property”) after finding it to be in deplorable
condition. The owner of the Property, Cheatham, claims he removed the sign in
March 2014. It is unclear whether this occurred before or after 4 April 2014, when
Moore County Building Inspections investigated a complaint that sewage was
standing around the Property’s well. At the time of the investigation, the Property
was unoccupied. As a result of the investigation, the Moore County Health
Department’s Environmental Section reported that the standing water around the
well “appears to be run off water and not sewage.” It recommended that the well be
abandoned if public water was available, or, if public water was not available, the
well be tested before used for human consumption.
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CHEATHAM V. TOWN OF TAYLORTOWN
Opinion of the Court
On 27 May 2014, Cheatham attended a town meeting to request an
explanation as to the condemnation of the Property. That same day, he submitted a
letter documenting this request. In response, Taylortown sent him a letter, dated 30
May 2014, notifying Cheatham that his house had been inspected, and, due to the
condition of the house and the land, a hearing would be scheduled. The letter further
explained Cheatham would be informed of a hearing date by certified mail.
Cheatham subsequently filed a lawsuit in Moore County Superior Court against
Taylortown.1 Well over a year after the condemned sign was posted and Cheatham
was notified that a hearing would be scheduled, Cheatham took a voluntary dismissal
in his first case against Taylortown.2
After sending the 30 May 2014 letter, Taylortown made no effort to schedule a
hearing or condemn the Property. On 19 June 2015, Taylortown adopted the
Ordinance pursuant to N.C.G.S. §§ 160A-441 through 160A-450 (2015). Cheatham
filed a new complaint on 21 March 2016, which is now before us on appeal.
On 22 March 2016, before Cheatham served Taylortown with the summons
and complaint, Taylortown investigated the Property pursuant to the authority and
procedures in the Ordinance. On 25 March 2016, once Taylortown received the
summons and complaint, it filed a motion to dismiss for lack of subject matter
1 The record is not clear as to the date Cheatham filed this first suit.
2 Subsequent to the dismissal, Cheatham made a motion to set aside his voluntary dismissal,
which the trial court denied on 10 December 2015.
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CHEATHAM V. TOWN OF TAYLORTOWN
Opinion of the Court
jurisdiction under North Carolina Rule of Civil Procedure 12(b)(1) based on
Cheatham’s failure to exhaust administrative remedies and under 12(b)(6) for failure
to state a claim. In response, Cheatham filed a motion to deny the motion to dismiss,
attaching 15 exhibits, including 6 letters that Cheatham maintains he sent to
Taylortown about the Property from June 2014 up until after the motion to dismiss
was filed in April 2016.
Judge Webb heard Taylortown’s motion to dismiss on 11 April 2016. During
the hearing, Cheatham “request[ed] that [Taylortown] stop continuing to be reckless,
malicious and unlawful condemning the property for a second time, and stop the
retaliation against [him] by condemning the property for a second time.” Judge Webb
granted Taylortown’s motion, and ordered the dismissal of the action under Rule
12(b)(1), finding “[Cheatham’s] claims arise out of [Taylortown’s] attempts to enforce
its Minimum Housing Ordinance and that [Cheatham] has fail[ed] to exhaust his
administrative remedies, as provided in N.C.G.S. § 160A-446.”3 Cheatham timely
appealed the trial court’s order.
Analysis
Cheatham argues that the motion to dismiss for lack of subject matter
jurisdiction should have been denied because Taylortown’s attempts to enforce its
minimum housing standards: (1) violate the “Bundle of Rights” given to all property
3 Having dismissed the case in accordance with Rule 12(b)(1), the trial court did not reach
Taylortown’s 12(b)(6) motion.
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CHEATHAM V. TOWN OF TAYLORTOWN
Opinion of the Court
owners under the law of the land, describing these rights as the owner’s right to enter,
use, sell, lease, or give away the land as he chooses; (2) obstruct justice; and (3) violate
procedural due process.
We disagree to the extent Taylortown’s enforcement efforts were made
pursuant to the Ordinance. Cheatham’s suit was properly dismissed for failure to
exhaust administrative remedies as to any efforts made after 19 June 2015 – the
effective date of the Ordinance. However, the trial court incorrectly determined that
all of Cheatham’s claims arose out of Taylortown’s attempts to enforce the Ordinance,
which is factually incorrect as Taylortown adopted the Ordinance after alleged
wrongs in the complaint took place.
North Carolina Rule of Civil Procedure 12(b)(1) “permits a party to contest, by
motion, the jurisdiction of the trial court over the subject matter in controversy.”
Trivette v. Yount, 217 N.C. App. 477, 482, 720 S.E.2d 732, 735 (2011). Rule 12(b)(1)
motions to dismiss for lack of subject matter jurisdiction are reviewed by our court de
novo, and matters outside the pleadings may be considered. Id. at 482, 720 S.E.2d at
735 (citation omitted).
The legislature enacted N.C.G.S § 160A-441 et seq. to ensure “that minimum
housing standards would be achieved in the cities and counties of this State.” Harrell
v. City of Winston-Salem, 22 N.C. App. 386, 391, 206 S.E.2d 802, 806 (1974). To do
so, section 160A-441 “confers upon cities and counties the power to exercise their
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CHEATHAM V. TOWN OF TAYLORTOWN
Opinion of the Court
police powers by adopting and enforcing ordinances ordering a property owner to
repair, close, or demolish dwellings that are determined to be unfit for human
habitation and therefore dangerous and injurious to the health and safety of the
public.” Newton v. City of Winston-Salem, 92 N.C. App. 446, 449, 374 S.E.2d 488, 490
(1988). Such city ordinances must contain procedures to provide owners with notice,
a hearing, and a reasonable opportunity to bring deficient dwellings into conformity
with the code. N.C.G.S. § 160A-443. N.C.G.S. § 160-446 delineates the remedies
available in N.C.G.S. § 160A-441 et seq.
Taylortown adopted the Ordinance pursuant to N.C.G.S. §§ 160A-441 through
160A-450, setting out the necessary procedures for the city to follow in minimum
housing cases. The procedure set out in the Ordinance and N.C.G.S. §§ 160A-441
through 160A-450 cannot be circumvented; plaintiffs must exhaust the
administrative remedies available provided by statute “before recourse may be had
to the courts.” Justice for Animals, Inc. v. Robeson Cty., 164 N.C. App. 366, 369, 595
S.E.2d 773, 775 (2004) (quotation omitted); Harrell, 22 N.C. App. at 391-92, 206
S.E.2d at 806 (citations omitted). If administrative remedies specifically provided by
statute are not exhausted before alternative recourse is sought through the courts,
“the court lacks subject matter jurisdiction and the action must be dismissed.” Justice
for Animals, Inc., 164 N.C. App. at 369, 595 S.E.2d at 775 (citation omitted).
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CHEATHAM V. TOWN OF TAYLORTOWN
Opinion of the Court
Under the Ordinance, Cheatham did not exhaust his administrative remedies
before seeking judicial review as required by statute. The proper course of action for
a person aggrieved under the Ordinance would be to present the case at a minimum
housing hearing pursuant to N.C.G.S. § 160A-441 et seq., and then, if he remained
unsatisfied, to appeal that decision to the Board as permitted by statute. N.C.G.S. §
160A-446. If his appeal to the Board was unsuccessful, he would then have the ability
to seek review in Superior Court by proceedings in the nature of certiorari. Id. §
160A-446(e).
Instead of following this procedure, Cheatham ignored N.C.G.S. § 160A-441 et
seq. and the Ordinance, attempting to collaterally attack the minimum housing
standards enforcement proceedings through this independent action. Thus, as he
failed to follow statutory procedure, to the extent his claims arose after 19 June 2015
out of Taylortown’s attempts to enforce the Ordinance, it was proper for the trial court
to dismiss this action for lack of subject matter jurisdiction. See Axler v. City of
Wilmington, 25 N.C. App. 110, 111, 212 S.E.2d 510, 511-12 (1975) (dismissing the
action because the plaintiff failed to exhaust the administrative remedies available
in N.C.G.S. § 160A-446).
However, Cheatham’s claims arising prior to the Ordinance’s enactment on 19
June 2015 do not arise out of Taylortown’s attempts to enforce the Ordinance. Thus,
the trial court’s determination that Cheatham’s “claims arise out of [Taylortown’s]
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CHEATHAM V. TOWN OF TAYLORTOWN
Opinion of the Court
attempts to enforce its Minimum Housing Ordinance” is in error. We remand for the
trial court to reconsider whether Cheatham’s claims arising on or prior to 19 June
2015 may be subject to dismissal under either Rule 12(b)(1) or 12(b)(6) of the North
Carolina Rules of Civil Procedure.
Conclusion
For the reasons stated above, the trial court correctly dismissed Cheatham’s
case for lack of subject matter jurisdiction to the extent the claims involve
enforcement actions made after 19 June 2015 pursuant to the Ordinance. However,
the trial court incorrectly determined that all of Cheatham’s claims were made
pursuant to the Ordinance. We remand for further consideration as to enforcement
actions occurring on or prior to 19 June 2015, the effective date of the Ordinance.
AFFIRMED IN PART; REMANDED FOR FURTHER CONSIDERATION IN
PART.
Judges CALABRIA and DIETZ concur.
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