Barbour v. Little

247 S.E.2d 252 (1978) 37 N.C. App. 656

Stewart G. BARBOUR, Josephine H. Barbour, D. St. Pierre DuBose, Valinda Hill DuBose, Herbert J. Fox, Frances Hill Fox, and Orange Speedway, Inc.
v.
George W. LITTLE, Bruce A. Lentz, North Carolina Department of Natural and Economic Resources, and North Carolina Department of Administration.

No. 7715SC435.

Court of Appeals of North Carolina.

August 29, 1978. Certiorari Denied November 3, 1978.

Lucius M. Cheshire, Hillsboro, for plaintiffs-appellants.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. William A. Raney, Jr., and Associate Atty. Gen. JoAnne Sanford Routh, Raleigh, for the State.

Certiorari Denied by Supreme Court November 3, 1978.

PARKER, Judge.

By this action plaintiffs seek a declaratory judgment determining that certain of our General Statutes dealing with acquisition of lands for State parks are unconstitutional. While the validity of a statute, when directly and necessarily involved, may be determined in a properly constituted action under the Declaratory Judgment Act, G.S. 1-253 et seq., "this may be done only when some specific provision(s) thereof is challenged by a person who is directly and adversely affected thereby." Greensboro v. Wall, 247 N.C. 516, 519-20, 101 S.E.2d 413, 416 (1958). None of the plaintiffs in the present action has as yet been "directly and adversely affected" by any statute which they seek to challenge in the present action, and plaintiffs have failed to show the existence of a genuine controversy cognizable under the Declaratory Judgment Act. A mere difference of opinion between the parties as to whether one has the right to purchase or condemn the property of the other—without any practical bearing on any contemplated action—does not constitute a genuine controversy. Tryon v. Power Co., 222 N.C. 200, 22 S.E.2d 450 (1942). The existence of such a genuine controversy is a jurisdictional necessity. Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404 (1949); Tryon v. Power Co., supra.

No condemnation proceeding affecting any lands of the plaintiffs has as yet been instituted under any statute the constitutionality of which they seek to have determined in this action. All that has occurred is that employees of the Division of Parks and Recreation in the North Carolina Department of Natural and Economic Resources have made initial alternative planning proposals for a State park which contemplate ultimate acquisition of certain lands of the plaintiffs for park purposes. However, no "Master Plan" for the park in question has as yet been "adopted" by the Division of Parks and Recreation, and even when adopted, such a "Master Plan" will serve merely as a guide to the Division itself in carrying out its statutory functions. The making of such a plan is a sensible, and even a necessary, preliminary step if our State parks are to be developed in an orderly rather than a haphazard fashion. However, the adoption of the plan by the Division of Parks and Recreation in no way assures that it will ultimately be carried out or that any of the lands contemplated by the plan to be included in a State park will ever be acquired for that purpose. The continuing review and revision of the plan by the Division itself to keep it consistent with changing concepts and conditions, the requirement for review and approval by higher governmental authority within the executive branch, and the final necessity for Legislative approval in the form of appropriation of funds, all present contingencies in the path leading to ultimate acquisition of any particular tract of land for park purposes. Clearly the inclusion of a particular tract of land within a plan at any stage of its development, including after its "adoption" by the Division of Parks and Recreation, does not constitute a taking of that land. The mere planning, including the making of preliminary surveys, is not a taking or damaging of the property affected. Browning v. Highway Commission, 263 N.C. 130, 139 S.E.2d 227 (1964); Penn v. Coastal Corp., 231 N.C. 481, 57 S.E.2d 817 (1950).

There is no merit in plaintiffs' contention that, because Judge Lee denied defendants' motion made under Rule 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted on the grounds that there is no genuine controversy in existence, Judge Smith could not thereafter allow defendants' motion for summary judgment made on the same grounds. While one superior court judge may not overrule another, the two motions do not present the same question. Alltop v. Penney Co., 10 N.C.App. 692, 179 S.E.2d 885 (1971). The test on a motion to dismiss under Rule 12(b)(6) is whether the pleading is legally sufficient. The test on a motion for summary judgment made under Rule 56 and supported by matters outside the pleadings is whether on the basis of the materials presented to the courts there is any genuine issue as to any material fact and whether the movant is entitled to judgment as a matter of law. Therefore, the denial of a motion to dismiss made under Rule 12(b)(6) does not prevent the court, whether in the person of the same or a different superior court judge, from thereafter allowing a subsequent motion for summary judgment made and supported as provided in Rule 56. Moreover, in this case the question of the validity of Judge Lee's ruling denying defendants' motion to dismiss has been properly preserved and brought forward on this appeal by defendants' cross assignment of error made pursuant to Rule 10(d) of the North Carolina Rules of Appellate Procedure. In this connection, plaintiffs' contention that defendants may not rely on their cross assignment of error because they failed to except to Judge Lee's order in the trial court is without merit. Under G.S. 1A-1, Rule 46(b), with respect to rulings and orders of the trial court not directed to admissibility of evidence, no formal objections or exceptions are necessary, it being sufficient to preserve an exception that the party, at the time the ruling or order is made or sought, makes known to the court his objection to the action of the court or makes known the action which he desires the court to take and his ground therefor. This the defendants did when they filed their motion to dismiss under Rule 12(b)(6). No further action by defendants in the trial court was required to preserve their exception. In the record on appeal defendants properly set out their exception to Judge Lee's order, as they were expressly permitted to do by Rule 10(d) of the Rules of Appellate Procedure. We find that the question of the validity of Judge Lee's order denying defendants motion to dismiss under Rule 12(b)(6) has been properly preserved by defendants' cross assignment of error and is before us on this appeal. We also find that Judge Lee committed error in denying defendants' motion to dismiss, since plaintiffs' complaint itself discloses that no genuine controversy exists such as to make this case cognizable under the Declaratory Judgment Act.

The judgment of Judge Smith allowing defendants' motion for summary judgment and dismissing this action is

Affirmed.

MARTIN and ARNOLD, JJ., concur.