Walker v. Hoke Cty. , 260 N.C. App. 121 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 17-341
Filed: 19 June 2018
Hoke County, No. 16-CVS-771
RUSSELL WALKER, Plaintiff,
v.
HOKE COUNTY et al., Defendants.
Appeal by plaintiff from order entered 16 February 2017 by Judge James F.
Ammons, Jr. in Hoke County Superior Court. Heard in the Court of Appeals 18
September 2017.
Russell F. Walker, pro se, plaintiff-appellant.
Locklear, Jacobs, Hunt & Brooks, by Grady L. Hunt, for defendant-appellee
Hoke County.
Moser and Bruner, P.A., by Jerry L. Bruner, for defendant-appellee Fifth Third
Bank, Inc.
Horack Talley Pharr & Lowndes, P.A., by Robert B. McNeill and Christopher
T. Hood, for defendant-appellee Tyton NC Biofuels LLC.
BERGER, Judge.
Russell F. Walker (“Plaintiff”) appeals an order granting Hoke County, Fifth
Third Bank, Inc., and Tyton NC Biofuels, LLC’s (collectively “Defendants”) motion to
dismiss Plaintiff’s complaint for lack of standing and failure to state a claim under
Rules 12(b)(1) and (6) of the North Carolina Rules of Civil Procedure. Plaintiff argues
WALKER V. HOKE CTY.
Opinion of the Court
the trial court erred because he sufficiently established standing as a taxpayer of
Hoke County, and has suffered an injury from which a favorable judgment on his
claims can grant him relief. We disagree.
Factual and Procedural Background
On March 26, 2008, Hoke County conveyed a 500 acre tract of land by Special
Warranty Deed (“the Deed”) to Clean Burn Fuels, LLC (“Clean Burn”). Clean Burn
built an ethanol plant on the land, but after financial problems the lender foreclosed
on the property in 2011. In 2014, Tyton NC Biofuels, LLC purchased the property
and obtained a loan from Fifth Third Bank, Inc. The loan was secured by a deed of
trust on the 500 acre tract of land.1
On December 20, 2016, Plaintiff filed a complaint in Hoke County Superior
Court seeking to set aside the original deed from Hoke County to Clean Burn, revoke
the deed of trust, and remove from office elected officials who approved the transfer.
In January 2017, Defendants filed answers to Plaintiff’s complaint and motions to
dismiss for lack of standing and failure to state a claim for which relief can be granted.
On January 19, 2017, Plaintiff filed a motion for summary judgment alleging no
genuine issue of material fact. A hearing was held on Defendants’ motions to dismiss
and Plaintiff’s motion for summary judgment. The trial court denied Plaintiff’s
1 Specific prices, dates, and transactions are not included in the record on appeal.
-2-
WALKER V. HOKE CTY.
Opinion of the Court
motion for summary judgment and granted Defendants’ motions to dismiss with
prejudice. Plaintiff appeals.
Analysis
“In our de novo review of a motion to dismiss for lack of standing, we view the
allegations as true and the supporting record in the light most favorable to the non-
moving party.” Mangum v. Raleigh Bd. of Adjust., 362 N.C. 640, 644, 669 S.E.2d 279,
283 (2008).
“Standing is a necessary prerequisite to a court’s proper exercise of subject
matter jurisdiction.” Aubin v. Susi, 149 N.C. App. 320, 324, 560 S.E.2d 875, 878, disc.
rev. denied, 356 N.C. 610, 574 S.E.2d 474 (2002) (citation omitted). “[O]nly one with
a genuine grievance” can bring a valid complaint. Mangum, 362 N.C. at 642, 669
S.E.2d at 282 (citations omitted). To establish standing, three elements must be
satisfied:
(1) 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) the injury is
fairly traceable to the challenged action of the defendant;
and (3) it is likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.
Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 114, 574 S.E.2d
48, 52 (2002) (citation and internal quotation marks omitted), disc. rev. denied, 356
N.C. 675, 577 S.E.2d 628 (2003). “Standing most often turns on whether the party
has alleged ‘injury in fact’ in light of the applicable statutes or caselaw.” Id. Further,
-3-
 WALKER V. HOKE CTY.
Opinion of the Court
“a plaintiff must demonstrate standing separately for each form of relief sought.”
Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 185, 145 L.
Ed. 2d 610, 629 (2000).
Historically, “taxpayers have standing to challenge the allegedly illegal or
unconstitutional disbursement of tax funds by local officials.” Goldston v. State, 361
N.C. 26, 31, 637 S.E.2d 876, 879-80 (2006). However, to establish an injury as a
taxpayer, the individual must allege “a misuse of public funds in violation of state
statute,” instead of merely “challenging the wisdom of the County’s decision.” Reese
v. Mecklenburg Cnty., N.C., 204 N.C. App. 410, 426, 694 S.E.2d 453, 464, disc. rev.
denied, 364 N.C. 326, 700 S.E.2d 924 (2010).
In prior cases before our Supreme Court, taxpayers have been granted
standing to bring an action against local and state government bodies when they have
alleged an injury that is concrete, traceable, and particular to a specific action in
violation of an applicable statute. See Goldston, 361 N.C. at 30-33, 637 S.E.2d at 879-
81; McIntyre v. Clarkson, 254 N.C. 510, 513-14, 119 S.E.2d 888, 890-91 (1961)
(holding a taxpayer had standing to facially challenge the constitutionality of a
statute). Goldston v. State noted “the right of a citizen and taxpayer to maintain an
action in the courts to restrain the unlawful use of public funds to his injury cannot
be denied.” Goldston, 361 N.C. at 33, 637 S.E.2d at 881 (citation and quotation marks
omitted) (emphasis added).
-4-
WALKER V. HOKE CTY.
Opinion of the Court
In the case sub judice, Plaintiff has failed to establish standing for each of his
claims for relief. In his complaint, Plaintiff failed to allege that he is a taxpayer.
Moreover, even if we were to assume Plaintiff is a Hoke County taxpayer, he has not
asserted a traceable, concrete, and particularized injury resulting from the transfer
of the 500 acre tract of land between the parties named in his complaint. Even in the
light most favorable to the non-moving party, we find no injury in fact under “any set
of facts to support his claim which would entitle him to relief.” Block v. County of
Person, 141 N.C. App. 273, 277-78, 540 S.E.2d 415, 419 (2000).
In addition, Plaintiff seeks removal of various elected officials stemming from
transfer of the property. However, standing pursuant to N.C. Gen. Stat. § 153A-77
and the common law removal procedure known as “amotion” does not derive from
taxpayer status, but instead from the county board of commissioners. Section 153A-
77 provides in pertinent part:
A member may be removed from office by the county board
of commissioners for (i) commission of a felony or other
crime involving moral turpitude; (ii) violation of a State law
governing conflict of interest; (iii) violation of a written
policy adopted by the county board of commissioners; (iv)
habitual failure to attend meetings; (v) conduct that tends
to bring the office into disrepute; or (vi) failure to maintain
qualifications for appointment required under this
subsection. A board member may be removed only after
the member has been given written notice of the basis
for removal and has had the opportunity to respond.
N.C. Gen. Stat. § 153A-77(c) (2017).
-5-
WALKER V. HOKE CTY.
Opinion of the Court
Removal by amotion is a “quasi-judicial” procedure employed by the board or
commission from which the member is being removed for cause. Russ v. Board of
Education, 232 N.C. 128, 129-30, 59 S.E.2d 589, 591 (1950); see also Burke v. Jenkins,
148 N.C. 25, 61 S.E. 608 (1908).2 An amotion proceeding “could not be taken without
notice and an opportunity to be heard, except where the officer is removable without
cause at the will of the appointing power.” Stephens v. Dowell, 208 N.C. 555, 561, 181
S.E. 629, 632 (1935) (citations omitted). Plaintiff has not alleged in his complaint or
on appeal that he is a member of any elected or appointed office. Because Plaintiff is
not a member of any of the boards from which he seeks to remove members, we affirm
the trial court’s order dismissing Plaintiff’s claims for lack of standing.
Accordingly, we find the trial court did not err by dismissing Plaintiff’s
complaint for lack of standing pursuant to Rule 12(b)(1) of the North Carolina Rules
of Civil Procedure. Because we find that Plaintiff does not have standing to pursue
the claims in his complaint, we need not reach any further issues argued by Plaintiff
on appeal.
Conclusion
2 The most recent amotion proceeding in North Carolina was in 2013 in Berger v. New Hanover
County Bd. of Comm’rs., 2013 NCBC 45, 2013 WL 4792508 (2013) (unpublished), where the New
Hanover County Superior Court upheld the removal of a local County Commissioner and recognized
the validity of the amotion procedure when “accompanied by appropriate procedural safeguards and
the Board’s findings and conclusions were supported by sufficient competent evidence.” Id. at *11.
-6-
WALKER V. HOKE CTY.
Opinion of the Court
The trial court did not err in granting Defendants’ motion to dismiss Plaintiff’s
complaint for lack of standing under Rule 12(b)(1) of the North Carolina Rules of Civil
Procedure. Accordingly, we affirm the trial court’s order.
AFFIRMED.
Chief Judge MCGEE and Judge DIETZ concur.
-7-